



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blain, 2013
    ONCA 224

DATE: 20130408

DOCKET: C54155

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Norman Blain

Respondent

Gillian Roberts, for the appellant

Leo Adler and Patrick Quilty, for the respondent

Heard: March 28, 2013

On appeal from the acquittals entered on July 22, 2011 by
    Justice Peter H. Wilkie of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The respondent was charged with accessing and possessing child
    pornography.  He was acquitted of all charges following a combined
Charter
/voluntariness
voir dire
.  Among other things, the trial judge found that the Crown had
    not met its burden of proving that statements allegedly made by the respondent
    to the police, both before and after his arrest (the Statements), were
    voluntary.

[2]

The Crown appeals.

[3]

At the oral hearing of the appeal, the court found it unnecessary to call
    on the respondent.  It advised the parties that the appeal was dismissed and
    that reasons would follow shortly.  These are the promised reasons.

[4]

Crown counsel has acknowledged that the crux of the appeal is the trial
    judges determinations on the voluntariness of the Statements.  Further, she
    acknowledged that if she fails on this issue, the balance of the appeal falls.

[5]

We see no basis on which to interfere with the trial judges
    determinations on the fundamental issue of voluntariness.

[6]

The Crown bore the burden of proving that the Statements made to the
    police were voluntary.  In finding that the Crown failed to meet its onus, the
    trial judge relied on his findings that (1) the record was incomplete and
    inaccurate, and (2) the evidence of the two police officers who testified on
    the
voir dire
was neither credible nor reliable.

[7]

These findings were fully available to the trial judge.  Contrary to the
    Crowns submission, the trial judge did not find a reasonable doubt because of
    the absence of a verbatim record of the interaction between the respondent and
    the police.  Rather, the trial judge considered all of the evidence put forward
    by the Crown.  He gave detailed reasons setting out the notable inconsistencies
    in the officers testimony and explained why he was not satisfied that the
    evidence of the police officers accurately or completely set forth the sequence
    of events or the details of the encounter.

[8]

Furthermore, the trial judge made detailed, specific findings of the
    highly unsatisfactory state of the record. While he concluded that his
    findings on voluntariness were in large measure due to the absence of an
    accurate, complete or reliable record of what occurred, the trial judge himself
    noted that he did not require a verbatim account.  He observed that the quality
    of the record was something entirely within the power of the authorities to
    determine, in circumstances fully orchestrated by the police.  They had
    complete control over the pace of the investigation, where and when it would
    proceed, who would be involved and what equipment or aids would be utilized. 
    Given that the officers were operating in a relatively controlled environment
    where they knew in advance that an important conversation with a suspect was
    about to occur, the trial judge concluded that it was reasonable to expect that
    they would take reasonable steps to protect the integrity of the record. He
    found that was not done.

[9]

In the circumstances, the trial judge could not be satisfied that the Statements
    were voluntary  that is, he could not be satisfied that they were made without
    threats, promises or inducement.  We see no basis on which to interfere with
    that determination.

[10]

Accordingly,
    the appeal is dismissed.

Janet Simmons J.A.

E.A. Cronk J.A.

E.E. Gillese J.A.


