Criminal law — Evidence — Admissibility — Prejudicial evidence — Confessions and statements by accused — Voluntariness — Accused's statement to police that gun used in robbery was not a real gun was not admissible — Crown failed prove voluntariness as police failed to record statement.

Voir dire to determine admissibility of statement made by accused Bennett at time of his arrest that gun used in robbery was not a real gun — Bennett and two co-accused were charged with robbery and use of a firearm while committing an indictable offence — Bennett was arrested and taken into interview room at police station — Officers cautioned Bennett and Bennett replied he understood his rights — Prior to interview, officer stated that he informed Bennett that he would be charged with robbery and use of imitation firearm — He then corrected himself and indicated to Bennett that charges would be robbery and use of a firearm — Bennett then allegedly blurted out that it was not a real gun — Officer questioned Bennett how he knew this — Bennett replied he could not say more according to the legal advise he received — Officer did not record statement of accused and conversations surrounding statement — Statement was not admitted — Crown did not discharge burden of proof that Bennett made statement voluntarily — Bennett showed clear reluctance to say anything to persons in authority at the time he made statement — When officer first approach an accused to confirm that he had been cautioned and given his Charter rights and to find out whether he wanted to make a statement, officers should record procedure.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982,

Criminal Code,

Counsel:

F. Armstrong for the Crown

P. Clement for D. Lodge

M. Webster for M. Thomas

L. O'Connor for D. Bennett

¶ 1      H.R. LOCKE J.:— The ruling on this voir dire determines the admissibility into evidence of a very short utterance said to have been made by Mr. Bennett on the occasion of his arrest by Toronto police officers.

¶ 2      Mr. Bennett is one of three accused now on trial. The two count indictment alleges robbery and the use of a firearm while committing an indictable offence. The charges read as follows:

¶ 3      The issues to be decided are twofold. Primarily, has the Crown proven that the statement or utterance was in fact made to persons in authority? Secondly, if made, was it made voluntarily by Mr. Bennett as matter of law?

¶ 4      With respect to the first issue, I find that the Crown has proven that the utterance or statement that I have just described was, in fact, made. The evidence from three police officers and from Mr. Bennett himself is not complicated.

¶ 5      Police Constable Jim Jamison arrested Mr. Bennett on July the 29th, 2000, at about 1:22 p.m. The officer drove the accused to 12 Division Police Station. After the usual booking procedure, Const. Jamison placed Mr. Bennett in the usual small interview room within the confines of the police station. The Holdup Squad was then notified. About an hour or more later two Holdup Squad detectives, Kennedy and Downs, arrived at the station. The only other relevant piece of evidence from Officer Jamison was his unchallenged confirmation that audio/video electronic equipment for taking statements and interviews from various persons, including accused persons, was available at the time at that police station.

¶ 6      After a very short conversation with Officer Jamison and his uniformed partner, Dets. Kennedy and Downs entered the interview room containing Mr. Bennett. The time was about 3:07 p.m. They identified themselves to Mr. Bennett, provided him with Charter rights, the usual caution, the usual secondary caution, all in the familiar words located at the back of the standard police notebook. When asked at each stage of this procedure if he understood what was being said to him, Mr. Bennett replied that he did understand.

¶ 7      Det. Kennedy swore that he said to Mr. Bennett: "You will be charged with robbery and the use of an imitation firearm." The officer then testified with the words that he said to Mr. Bennett, which were: "Wait, no, you will be charged with robbery and the use of a firearm."

¶ 8      On this voir dire, after giving some sort of an explanation as to why he altered the nature of the charges he gave to Mr. Bennett, the officer swore that Mr. Bennett, while this alteration was being explained by the officer, blurted out the words: "But it wasn't a real gun". The officer then asked: "How do you know that?" To that question the witness said that Mr. Bennett replied: "I want to tell you more, officer, but I can't; my lawyer told me not to." Det. Kennedy replied: "That is your choice." The two officers then left the room.

¶ 9      At 3:30 p.m. Det. Kennedy, this time alone, returned to the interview room containing Mr. Bennett. The officer was in possession of what he said was a synopsis of the occurrence in question then on a continuing investigation which he had obtained from police computers. He told Mr. Bennett that the charges would be robbery and the use of an imitation handgun. The officer's question to this accused was: "Do you want to say anything?" To that question Mr. Bennett answered with the word: "Nope."

¶ 10      Det. Kennedy said that he returned to the room the second time because he had learned, as I say, certain information from that synopsis concerning the finding of a handgun, and whether the handgun in question should be charged under the title of imitation or not.

¶ 11      In cross-examination Det. Kennedy testified that, in essence, it was his personal practice to approach an accused in these circumstances to ensure that the accused, in this case Mr. Bennett, was properly given his Charter rights, the caution and the secondary caution, all of which must be properly administered. Further, the officer wanted to ascertain whether Mr. Bennett would be agreeable to giving a statement and, if so, would he agree to an audio/video statement, an audio statement alone, or a verbal statement, or, presumably, no statement at all. He was not able to achieve these objectives, he said, before Mr. Bennett blurted out the inculpatory words "it wasn't a real gun".

¶ 12      The officer did agree that he usually carries an audio tape recorder when he investigates suspects in the course of his professional duty. He agreed that the use of such a device produces the most accurate record of everything that was said and, in addition, it protects the officer taking the statement from future embarrassment during the course of a voir dire such as this. He was, however, not able to recall if he carried his tape recorder that day when he was called from his home to go to the police station to interview Mr. Bennett.

¶ 13      Det. Downs was present at this interview. He said that when asked if he wanted to call a lawyer Mr. Bennett replied with the words: "I already have." Det. Downs, however, could not seem to remember all of the accused's words that were uttered to the other police officer in the room, which words, I note, included the words: "I can't say anything more", et cetera.

¶ 14      The burden to prove voluntariness rests upon the Crown. The standard of proof is beyond a reasonable doubt.

¶ 15      The first inference I make in this ruling is the existence in the mind of the accused, Mr. Bennett, at the crucial time, a clear reluctance to say anything to persons in authority.

¶ 16      A perusal of the total evidence leads me to conclude that the two Holdup Squad detectives well knew that they were being called to interview a person charged with robbery at the very least, and that that person was waiting at 12 Division Station calls to be interviewed by those officers. Det. Kennedy swore that, indeed, he was on duty 'on call' on the day in question. He also swore that he was in the habit of carrying a tape recorder when on duty in order to record utterances and statements like those I have just described. He appeared unable to remember whether he carried the recorder when he was called to interview Mr. Bennett. That failure to recall causes me some concern.

¶ 17      Of even more concern is the officer's apparent failure to inquire about the presence of audio/video equipment at 12 Division Police Station that day. There is yet an even further concern ... I see no reasonable sensible explanation as to why two Holdup Squad detectives, owning a total of about 37 years of policing experience between them, would not take the time to consult police CPIC computers and other such devices for an update synopsis of this criminal investigation, which was ongoing, before commencing the interview with Mr. Bennett and not after. That action would have obviated the professed misapprehension on Det. Kennedy's part considering the nature of the gun charge he was describing when he professed to mix up whether the allegation was the use of a firearm or the use of an imitation firearm. In twenty-five years as a judge, I have not before encountered a senior police officer, such as Det. Kennedy, not previously knowing what precisely the charges were with respect to the interview he, as an officer, was about to commence in that interview room.

¶ 18      Mr. Justice Whealy, of this Court, has repeatedly made it clear that it was very necessary that police officers taking statements from persons must employ some sort of audio or video equipment in that very crucial, sensitive process.

¶ 19      Madam Justice Charron, of the Ontario Court of Appeal, in the case of R. v. Gregory Charles Moore-McFarlane and Paul Anthony Bogel, [2001] O.J. No. 4646, in a lengthy judgment, at page 34, paragraph 67, in part, had the following to say:

¶ 20      It may well be that Mr. Bennett could not help himself from making the inculpatory utterance that he made concerning the gun. It may also be that everything Mr. Bennett said was recorded by Det. Kennedy, even though Det. Downs could not remember a very important part or element of what Det. Kennedy said he heard. However, what Madam Justice Charron had to say in the case I have just quoted, on the basis of that, as well as the many other cases, including the learned decisions of Mr. Justice Whealy of this Court, I am not prepared to find that the Crown, in these circumstances, has discharged the very heavy burden of proof that it must prove in this case.

¶ 21      In the result, the statement will not be admitted.

¶ 22      MR. ARMSTRONG: Thank you, Your Honour.

¶ 23      I wonder, Your Honour, if I could, just for the sake of some direction, ask you for perhaps an important clarification of your judgment?

¶ 24      THE COURT: Go ahead ...

¶ 25      MR. ARMSTRONG: I was wondering if it's implicit in what you've said that it's the court's view that when Holdup Squad officers first approach an accused to confirm that he has his rights, to find out if he wants to make a statement and how he wants to be recorded in the giving of that statement -- that at the time they do that, that is, their first approach to him for that purpose, that they should at that time have audio equipment running -- during that procedure?

¶ 26      THE COURT: I'm speaking only for myself ... I think the question that you've framed causes me to answer in the affirmative, that it is so implicit.

¶ 27      MR. ARMSTRONG: Thank you.

QL UPDATE:  20051026
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