



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fernandes, 2016 ONCA 772

DATE: 20161020

DOCKET: C60920

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Charles Fernandes

Respondent

Lisa Joyal, for the appellant

Howard L. Krongold and Kenneth Y.W. Jim, for the
    respondent

Heard: September 22, 2016

On appeal from the acquittal entered on July 31, 2015 by
    Justice Healey of the Superior Court of Justice.

Hourigan J.A.:

Introduction

[1]

The respondent walked into a detachment of the Ontario Provincial Police
    and told the front counter administrative assistant that he wanted to confess
    to burning down his mothers house.

[2]

Arrangements were made for the respondent to speak with a police
    officer. During the course of that discussion, the respondent advised that he
    was homeless and wanted to go to jail.

[3]

The police officer advised the respondent that arson is a serious
    offence, which may be punishable by imprisonment, and cautioned the respondent
    that anything he said to the officer could be used in evidence. The officer
    also repeatedly suggested to the respondent that he obtain legal advice.

[4]

Initially the respondent was not interested in speaking to a lawyer, but
    eventually he relented and had a telephone conversation with duty counsel.
    After receiving legal advice, the respondent proceeded to give a statement
    implicating himself in the fire that had destroyed his mothers house.

[5]

On a
voir dire
regarding the voluntariness of the statement,
    the trial judge found that a combination of oppressive conditions and
    inducement have operated together to produce an involuntary confession. She
    ruled that the statement was inadmissible. Without the statement, the Crown was
    no longer in a position to proceed to trial and consequently requested that the
    trial judge enter an acquittal.

[6]

On appeal, the Crown submits that the trial judge erred in finding that the
    statement was involuntary. In particular, the Crown argues that the trial judge
    misapplied the law regarding the issues of inducement and oppression. Further,
    the Crown submits that the trial judge conflated her role on the
voir dire
,
    being the determination of whether the statement was voluntary, with her role
    at trial of determining whether the statement was reliable.

[7]

For the reasons that follow,
I would
    allow the appeal, set aside the acquittal, and
order a new trial.

Facts

[8]

On the morning of August 8, 2014, the respondent attended at the Huronia
    West Detachment of the Ontario Provincial Police. He was alone and did not have
    a scheduled appointment. Nor was he under investigation, detention, or arrest
    for any offence.

[9]

The front counter administrative assistant greeted the respondent upon
    his arrival at the police station. The respondent advised her that he was there
    to turn himself in for burning down his mothers house.

[10]

Arrangements were made for the respondent to meet with Officer Sowyrda
    in an interview room. At the beginning of the discussion, the respondent
    advised the officer that, I can't live outside because I have all kinds of
    injuries inside of me and I got like brain damage and I got nerve damage and I
    got all kinds of shit wrong with me.

[11]

The respondent told the officer that he needed to go to jail and that he
    was not leaving until he had a place to stay. When the officer explained that
    only people who commit crimes go to jail, the respondent told him, Well I have
    committed a crime and I got away with it, so I'll just admit to it and I'll be
    on my way.

[12]

Officer Sowyrda told the respondent that anything the respondent said to
    him could be used as evidence. The officer also advised the respondent that he
    had a right to consult with counsel and he recommended that the respondent
    exercise that right.

[13]

The interview continued in the same manner. The officer advised the
    respondent on at least three occasions that he was free to leave at any time.
    He told the respondent on four occasions that anything he said could be used
    against him. On ten occasions he told the respondent that arson was a serious
    offence, and on at least three of those occasions he told the respondent that
    it was punishable by up to fourteen years imprisonment.

[14]

Throughout the interview, Officer Sowyrda also repeatedly asked the
    respondent if he wanted to speak to counsel and advised him that counsel could
    be supplied free of charge through Legal Aid. The respondent refused the offer
    of counsel on nine occasions. However, on the tenth occasion he agreed to speak
    with duty counsel. After that call, the respondent provided a detailed
    statement about the arson, implicating himself in the crime.

[15]

The respondent was charged with one count of arson. Prior to the
    commencement of trial, the parties advised the trial judge that a
voir dire
to determine the admissibility of the respondent's statement would be held
    separately from the respondent's trial. On the
voir dire,
the Crown
    called as witnesses the officers and staff who were in contact with the
    respondent at the police station at the time of his confession, as well as the
    officers who had initially investigated the fire. The Crown entered as an
    exhibit a videotape of the interview. The respondent called no evidence on the
voir
    dire
.

Ruling on
Voir Dire

[16]

In her ruling on the
voir dire,
the trial judge described the
    issue to be determined as follows, at para. 18:

The issue raised by this application is whether the accused's
    statement was voluntary within the meaning of the confessions rule. The rather
    unusual question to be decided is, absent any of the traditional grounds
    stemming from conduct or words from a person in authority that would render a
    statement involuntary, whether the voluntariness of the statement is
    nonetheless vitiated because it was induced by the accused's oppressive
    personal circumstances, or, alternatively because it was not the product of an operating
    mind.

[17]

The trial judge found that the officer's conduct toward the respondent
    had been "unimpeachable" and "blameless". She went on to
    state, at para. 29:

There was nothing in the officer's conduct that can be
    criticized ... The officer appeared to make great efforts to ensure that the
    accused did not feel pressured or coerced into making a statement, all the
    while fulfilling his duty to gather any relevant facts that may assist in
    resolving what had been transformed into a potential crime once the accused
    began his confession.

[18]

The trial judge further found that the respondent possessed an operating
    mind at the time of making his statement.

[19]

Notwithstanding these findings, the trial judge concluded that Officer
    Sowyrda had induced the respondent to confess through presenting the
quid
    pro quo
of jail in return for a confession. The trial judge further
    concluded that the respondent had been "oppressed" by his own
    "mind" and "imagination". She reasoned as follows, at paras.
    34-35:

This is one of those cases where oppressive conditions and
    inducement have operated together to produce an involuntary confession.
    Although it is usually the case that the focus is on police conduct when
    examining threats, promises or oppressive circumstances, this case illustrates
    how, even with unimpeachable police conduct, a confession may be found to be
    involuntary when all of the circumstances are examined . . . an accused may be
    labouring under circumstances of oppression sufficient to create a reasonable
    doubt that have nothing to do with the police.

Issue

[20]

The issue for determination on this appeal is whether the trial judge
    erred in finding that the respondents statement to the police was involuntary.
    In considering this issue, I will consider the general legal principles
    informing a voluntariness analysis. I will then review the trial judges
    analysis on the issues of inducement and oppression. Finally, I will consider
    the Crowns submission that the trial judge conflated her role on the
voir
    dire
with her role at trial.

Analysis

(a)   General Principles

[21]

The law regarding voluntariness is well settled and need not be reviewed
    in detail for the purposes of this appeal.

[22]

Because of the criminal justice systems overriding concern not to
    convict the innocent, for a statement made to a person in authority to be
    admissible it must be voluntary. This is known as the confessions rule. The
    onus to establish the voluntariness of a statement lies with the Crown, and it must
    be proven beyond a reasonable doubt.

[23]

When reviewing a confession, a trial judge should consider all the
    relevant factors to understand whether the circumstances surrounding the
    confession give rise to a reasonable doubt as to the confessions
    voluntariness. The relevant factors include: oppression, threats or promises
    (i.e. inducement), the operating mind requirement, and police trickery:
R.
    v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3.

[24]

In
R. v. Whittle
, [1994] 2 S.C.R. 914, Justice Sopinka, writing
    for the court, summed up the analysis with the following question, at para. 31:
    "Did the action of police authorities deprive the suspect of making an
    effective choice by reason of coercion, trickery, misinformation or the lack of
    information?"

[25]

In the present case, the trial judge concluded beyond a reasonable doubt
    that the respondent had the required operating mind. There was also no issue of
    police trickery. The trial judges analysis focused on the issues of oppression
    and inducement. I turn now to that analysis.

(b)     Inducement

[26]

Where the state induces a suspect to confess, regardless of whether the
    inducement comes in the form of a threat or a promise, the confession will be
    inadmissible

when the
    inducement, whether standing alone or in combination with other factors, is
    strong enough to raise a reasonable doubt about whether the will of the subject
    has been overborne:
Oickle
, at para. 57.

[27]

The most important consideration in determining whether the accused's
    statement has been induced by such a threat or promise is whether there was a
quid
    pro quo
offer by the interrogators.
A
quid
    pro quo
offer

is an inducement for the suspect to confess that
    raises the possibility that the suspect is confessing, not because of any
    internal desire to confess, but merely in order to
gain
the benefit
    offered by the interrogator:
R. v. Heatley
, 2015 BCCA 350, 375 B.C.A.C. 194,
at para. 6
, and
Oickle
, at para. 56.

[28]

In the present case, the trial judge concluded that the fact that
    Officer Sowyrda advised the respondent that he could be imprisoned as a
    consequence of his confession operated as an inducement, given the respondents
    stated desire to find shelter. This conclusion is incorrect for the following
    reasons.

[29]

First, there must be a nexus between the threat or promise and the
    confession. There can be no inducement where the thing said or done by the person
    in authority does not result in the confession:
Oickle
, at para. 84.
    There was no nexus in this case as the respondent came to the police detachment
    with the express purpose of confessing to the arson. He made his intentions
    known to the administrative assistant before speaking to the officer.

[30]

Second, the act of supplying accurate factual information to an
    accused does not constitute an inducement:
R. v. Backhouse
(2005), 195
    O.A.C. 80 (C.A.),
R. v. Teske
(2005), 202 O.A.C. 239 (C.A.). Officer Sowyrda
    had a duty to provide
information to
    the respondent regarding his potential jeopardy. Indeed, if he did not do so,
    the statement made by the respondent could potentially be found to be
    involuntary on that basis. I agree with the submission of the Crown that police
    officers should not be placed in an untenable position where both providing
and
failing to provide suspects with
    information about their potential jeopardy could each render statements
    inadmissible.

[31]

Third, on the factual findings of the trial judge, it is clear that the
    officer was not actively seeking to elicit a confession. To the contrary, he
    repeatedly advised the respondent to seek counsel, told him he was free to
    leave at any time, and made clear the seriousness of the situation.

[32]

In these circumstances, it was an error in law to find that the
    respondent was induced to make the statement.

(c)      Oppression

[33]

A statement of an accused will be rendered involuntary and inadmissible
    where the conduct of a police officer or the circumstances of the detention are
    so oppressive as to raise a doubt whether the accused was able to make an
    independent choice to speak to the police or remain silent: Lederman, Bryant
    and Fuerst,
The Law of Evidence in Canada,
4th ed. (Markham:
    LexisNexis, 2014),

at para. 8.63.

[34]

Examples of oppressive conditions include situations where the detainee
    is deprived of food, clothing, sleep, or medical attention. Excessively
    aggressive, intimidating questioning by the police for a prolonged period of
    time may also constitute oppression:
Oickle
, at paras. 59 to 62,
R.
    v. Hoilett
[1999], 121 O.A.C. 391 (C.A.), at paras. 25-26.

[35]

In the present case, the trial judge found the respondent's statement to
    be involuntary because of the atmosphere of oppression created by the
    respondent's own mind and imagination. She held that the fact that the
    respondent was homeless and in desperate need of shelter meant that he was
    suffering under oppressive conditions. In my view, the trial judge erred in law
    in her analysis of the issue of oppression.

[36]

Under the confessions rule, the oppressive conditions must be caused or
    created by the state. The concern underlying this part of the rule is that state
    agents may abuse their authority over an accused to effectively negate the
    accuseds ability to make an independent decision to speak to the authorities:
Oickle
,
    at para. 60. Here the trial judge found that the conduct of the police was
    unimpeachable and blameless. Given these findings, it is not possible that
    oppression was a factor.

[37]

The trial judge also found that the respondent had an operating mind.
    Consequently, in the absence of police misconduct, he was responsible for his
    decision to speak to police and not maintain his right to silence. As Justice
    Sopinka put it in
Whittle
, at para. 55: Inner compulsion, due to
    conscience or otherwise, cannot displace the finding of an operating mind
    unless, in combination with conduct of a person in authority, a statement is
    found to be involuntary. While the respondents inner compulsion may have led
    to his confession, there was nothing in the conduct of the police that would
    render the statement involuntary.

[38]

In my view, there was no basis for the trial judge to conclude that the
    respondent was oppressed by the police while at the detachment.

(d)     Conflation of Roles

[39]

The Crown submits, and I accept, that the trial judges ruling
    demonstrates that she conflated her role on the
voir dire
of
    determining whether the statement was voluntary with her role at trial of
    determining if the statement is reliable.

[40]

During the Crowns submissions on the
voir dire
, the trial judge
    asked the Crown whether the overarching concern on the
voir dire
was
    the reliability of the confession. The Crown replied that the question before
    the court was one of voluntariness, and that reliability was an issue reserved
    for the trial. Defence counsel agreed that the truth, falsity, and ultimate
    reliability of the statement ought to be matters reserved for the trial.

[41]

Despite the submissions of counsel, in her ruling the trial judge expressed
    her concern, at para. 40, that the statement may be false: 
even
    if the question of admissibility was determined differently, as the eventual
    trier of fact I would be unable to attach much weight to the statement given
    its content
.



[42]

The effect of this error
is that it deprived the Crown
    of the opportunity to tender the statement in the context of all of the
    evidence at trial to prove its veracity beyond a reasonable doubt. In other
    words, by conflating the two exercises the trial judge considered the ultimate
    reliability of the statement without the benefit of the rest of the evidence.

Disposition

[43]

I would allow the appeal, set
    aside the acquittal, and
order a new trial.

Released: DD OCT 20 2016

C.W. Hourigan J.A.

I agree. Doherty
    J.A.

I agree. S.E. Pepall
    J.A.


