



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. M.S.M., 2014 ONCA 441

DATE: 20140605

DOCKET: C57276

Rosenberg, MacPherson and Lauwers

BETWEEN

Her Majesty the Queen

Appellant

and

M. S. M.

Respondent

Benita Wassenaar, for the appellant

Richard Litkowski, for the appellant

Heard: May 26, 2014

On appeal from the acquittal entered on June 7, 2013 by
    Justice Douglas K. Gray of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant Crown appeals from the acquittal of the respondent by a
    jury on charges of sexual assault and sexual interference. The only grounds of
    appeal concern the trial judges decision to exclude a statement given by the
    respondent to the police. While counsel framed the submissions in various ways,
    the essential issue is whether the trial judge erred in law in focusing solely
    on an inducement offered by the police. The appellant submits that the trial
    judge was required to take a broader approach and look at the entire context.
    For the following reasons, the appeal is dismissed.

[2]

The complainant is the respondents daughter. The complainant and her
    brothers grew up with their mother, the respondent having left the home shortly
    after the complainant was born. However, in 2009, the respondent returned to
    the home and lived with the family for about one year. It was during this time
    that the complainant alleged that the respondent sexually assaulted her. The
    respondent was arrested on February 15, 2012 and brought to Halton. The
    following day he was interviewed by Officer Golba for just over an hour. During
    this period, the respondent made increasingly incriminating statements. In the
    course of the interview, the officer referred to the complainants need for
    help which, however, depended upon the respondent admitting that he had
    sexually assaulted the complainant.

[3]

In his ruling, the trial judge found that as a result of the statements
    from the officer the respondent made his statements just to get it over with
    and to get help for his daughter and that a full admission was required in
    order to get [the complainant] the help that she needs.

[4]

The principal ground of appeal is that the trial judge focused solely on
    what he found to be an inducement and did not take into account the entire
    context, including that the respondent only had a tenuous relationship with the
    complainant, and that it was only an offer of psychiatric assistance to the
    complainant.

[5]

The standard of review of a trial judges decision on admissibility of a
    confession is based on the fact that such decision is primarily factual and is
    entitled to considerable deference. The Supreme Court of Canada made this clear
    in
R. v. Oickle
,
2000 SCC 38, where it overturned the decision
    of the Nova Scotia Court of Appeal and restored the decision of the trial
    judge.  As the court said at para. 22:

While determining the appropriate legal test is of course a
    question of law, applying this test to determine whether or not a confession is
    voluntary is a question of fact, or of mixed law and fact. [A] disagreement
    with the trial judge regarding the weight to be given various pieces of
    evidence is not grounds to reverse a finding on voluntariness. Respectfully, I
    believe that the Court of Appeal did just that.

[6]

The lengthy reasons for judgment by the trial judge and the interchange
    between the trial judge and counsel during submissions show that the trial
    judge applied the correct test for admission of the statements. The trial judge
    referred extensively to the law as laid down in
Oickle
and
R. v.
    Spencer
, 2007 SCC 11. The trial judge noted that an inducement of
    psychiatric assistance or other counselling is not as strong as an offer of
    leniency, that an inducement related to a third party can render a confession
    inadmissible depending upon the nature of the relationship and the surrounding
    circumstances, and that the issue is whether the will of the accused has been
    overborne. The trial judge also recognized that the courts have permitted the
    police to use inducements. He referred in particular to para. 57 of
Oickle
:

In summary, courts must remember that the police may
    often offer some kind of inducement to the suspect to obtain a confession. Few
    suspects will spontaneously confess to a crime. In the vast majority of cases,
    the police will have to somehow convince the suspect that it is in his or her
    best interests to confess. This becomes improper only when the inducements,
    whether standing alone or in combination with other factors, are strong enough
    to raise a reasonable doubt about whether the will of the subject has been
    overborne.

[7]

In referring to
Spencer
,
the trial judge noted that what
    is central is not simply the
quid pro quo
, but voluntariness.

[8]

After referring to these and other cases, the trial judge reviewed the
    statement at length and concluded the Crown had not shown the statement was
    voluntary. He concluded as follows:

At the end of the day, the question before me is whether the
    Crown has proven beyond a reasonable doubt that the statement was voluntary. 
    In my view, there is no question that the answer is no.  It is more likely, in
    my view, that the statement was the product of an inducement of securing help
    for the accuseds daughter.  The seed was planted early and was used
    effectively throughout the interview. It is clear that [the respondent] ended
    up making his statement just to get it over with and to get help for his
    daughter.

What was of some significance, in my view, is that the partial
    admission made by [the respondent] was not enough and that at page 69 of the
    interview, to which I referred earlier, it was made clear that a full admission
    was required in order to get [the complainant] the help that she needs.  In the
    circumstances, given the analysis required, and considering the specific
    circumstances of the matter, an actual
quid pro quo
was not
    strictly-speaking necessary in order to render the statement involuntary, when
    on a reasonable contextual view of what occurred, in my judgment, a
quid
    pro quo
was there.  The clear message was: confess and your daughter can
    get help and move on; if you do not confess, she will not.

In the end, the Crown has simply not proven that that statement
    was voluntary beyond a reasonable doubt and, therefore, the statement is
    inadmissible.

[9]

The reasons and the interchange during submissions demonstrate that the
    trial judge applied the correct test. It was a question of fact whether the
    officer made an improper inducement to the respondent that rendered the
    statement involuntary. The appellant submits that the trial judge erred in
    focusing solely on the inducement and failed to consider that there was no suggestion
    of compulsion. As
Oickle
and
Spencer
make clear, the issue is
    voluntariness. The fact that an officer has made an inducement of some kind
    does not therefore render the statement inadmissible. But, an inducement, even
    one concerning a third person, can be sufficient to render the confession
    inadmissible, even in the absence of evidence of compulsion. The court made
    that very clear in
Spencer
at paras. 13 and 15:

With respect to promises, which are at issue in the present
    appeal, this Court has recognized that they "need not be aimed directly at
    the suspect ... to have a coercive effect":
Oickle
, at para. 51.
    While Iacobucci J. recognized in
Oickle
that the existence of a
quid
    pro quo
is the "most important consideration" when an inducement
    is alleged to have been offered by a person in authority, he did not hold it to
    be an exclusive factor, or one determinative of voluntariness. On the contrary,
    the test laid down in
Oickle
is "sensitive to the particularities
    of the individual" (para. 42), and its application "will by necessity
    be contextual" (para. 47). Furthermore,
Oickle
does not state
    that any
quid pro quo
held out by a person in authority, regardless of
    its significance, will necessarily render a statement by an accused
    involuntary. For example, an offer of psychiatric or psychological assistance,
    although "clearly an inducement, ... is not as strong as an offer of
    leniency and regard must be had to the entirety of the circumstances"
    (para. 50). Inducements "becom[e] improper only when ... standing alone or
    in combination with other factors, [they] are strong enough to raise a
    reasonable doubt about whether the will of the subject has been overborne"
    (para. 57).



Therefore, while a
quid pro quo
is an important factor
    in establishing the existence of a threat or promise, it is the strength of the
    inducement, having regard to the particular individual and his or her
    circumstances, that is to be considered in the overall contextual analysis into
    the voluntariness of the accused's statement.

[10]

The
    trial judge did refer to all the relevant circumstances. The trial judge was
    sensitive to the relevant circumstances. The weight to be attached to the
    circumstances and the findings of fact were for the trial judge. We have not
    been persuaded that the trial judge erred in law.

[11]

Counsel
    for the appellant makes one further submissions. She submits that even if part
    of the statement was inadmissible, the trial judge should have admitted that
    portion of the statement prior to page 49. She relies upon this excerpt from
    the trial judges reasons:

What was of some significance, in my view, is that the partial
    admission made by [the respondent] was not enough and that at page 69 of the
    interview, to which I referred earlier, it was made clear that a full admission
    was required in order to get [the complainant] the help that she needs.

[12]

We
    do not interpret this passage as a finding that the statement was voluntary
    until that point. It is a finding, supported by the evidence, that the police
    officer was not satisfied with the partial admissions. It was not a finding
    that what had occurred before was voluntary. To the contrary, other parts of
    the reasons show that the trial judge was concerned that the improper offer was
    planted in the interview from near the beginning. As the trial judge said, the
    improper inducement was planted before any incriminating statements. Further,
    this issue of admitting only part of the statement was not raised before the
    trial judge.

[13]

Accordingly,
    the appeal is dismissed.

M. Rosenberg J.A.

J.C. MacPherson J.A.

P. Lauwers J.A.


