R. v. A.D.

2017 BCSC 2065 R. v. A.D. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. A.D., 2017 BCSC 2065 Date: 20171115 Docket: 97665-2 Registry: Kamloops Regina v. A.D. Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4(1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, including any victims or alleged perpetrators of sexual abuse not named in the Indictment and any other individuals not named in the Indictment referred to in this judgment by initials. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Donegan Voir Dire Ruling on Voluntariness Counsel for the Crown: A. Janse Counsel for the Accused: J. Gustafson Place and Date of Hearing: Kamloops, B.C. September 19, 21, 25 and 26, 2017 Place and Date of Ruling given to Parties with Reasons to follow: Kamloops, B.C. September 27, 2017 Place and Date of Judgment: Kamloops, B.C. November 15, 2017 INTRODUCTION [1] A.D. stands charged with seven counts of indecently assaulting another male person, contrary to s. 156 of the Criminal Code, R.S.C. 1970, c. C-34. The charges arise from allegations made by seven men, now in their 50s, that A.D. had sexual contact with them between 1976 and 1982 - a timeframe when it is alleged that A.D. was an adult and their coach. [2] In support of its case, the Crown seeks to tender a statement made by A.D. to authorities following his arrest on March 6, 2014. This voir dire was held over four days for the purpose of determining whether the Crown had proven this statement was voluntarily made by A.D. beyond a reasonable doubt. [3] Given the need to continue the trial immediately, I gave my decision that the Crown had proven A.D.'s statement voluntary, with reasons to follow. These are those reasons. [4] A.D.'s police interview was video and audio recorded. It lasted approximately eight and a half hours. The recordings were played and a transcript accompanied them. The Crown called one witness, Sergeant Darren Carr. The accused elected to call no evidence. [5] The Crown submits it has met its burden to prove A.D.'s statement voluntary beyond a reasonable doubt. Ms. Janse emphasizes the contextual approach to assessing voluntariness and says that in the circumstances of this interview and this particular accused, there should be no doubt A.D.'s choice to speak to Sergeant Carr was the product of his exercise of a free and meaningful choice. A.D. had an operating mind. His will was not overborne. Sergeant Carr made no threats, offered no inducements other than permissible moral inducements and did not engage in any trickery. Although the interview was lengthy, Ms. Janse argues that its duration was not unreasonably long such that it became oppressive. A.D. made a conscious, meaningful choice to speak to authorities for moral reasons - to provide closure and an apology to the complainants. [6] The defence submits the Crown has not met its burden in this case. [7] Mr. Gustafson argues that A.D.'s decision to speak to authorities was not voluntary, or at least there should be a reasonable doubt about voluntariness. Mr. Gustafson does not suggest that many of the traditional concerns relating to improper treatment arise in this case. Rather, he emphasizes that a constellation of factors were at play, leading ultimately to A.D.'s loss of the ability to exercise free will, the loss of his ability to make a meaningful choice to speak to state authorities. [8] Mr. Gustafson submits that for the first several hours of the interview, A.D. maintained, through his conduct and words, his firm commitment to exercise his right to silence. Sergeant Carr persisted in his questioning. The dramatic change occurred when A.D. learned a close family member disclosed to police the name of another family member who had abused A.D. when he was young. This revelation created a highly emotional state and vulnerable mindset in the previously stoic A.D. In the context of persistent police questioning over a lengthy period of time and his repeatedly unsuccessful assertions of his right to silence, Mr. Gustafson submits A.D.'s will was overborne to the point he expressed a willingness to agree to whatever was alleged by the complainants. He no longer exercised free will. This is, he argues, the antithesis of a voluntary statement. It should, at the very least, create a reasonable doubt on the issue. LEGAL PRINCIPLES [9] When an accused person provides a statement to a person in authority, the Crown must prove beyond a reasonable doubt that the statement was made voluntarily for it to be admissible as evidence. This common law rule, known as the confessions rule, is intended to address concerns about the reliability and truthfulness of confessions, as well as promote the integrity of the administration of criminal justice. The confessions rule is intended to strike a balance between the state's need to investigate and solve crimes and the individual's right to fair treatment and to silence: R. v. Tan, 2014 BCCA 9 at para. 99. [10] The Supreme Court of Canada set out the proper scope of the confessions rule in R. v. Oickle, 2000 SCC 38. It remains a leading case in this area today. [11] To understand the proper application of the confessions rule today, I think it is important to understand the history and basic principles that informed the court's analysis in Oickle. [12] In defining the modern confessions rule, Iacobucci J., writing for the Court, began with a discussion of its historical development. Confirming McLachlin J.'s analysis a decade earlier in R. v. Hebert, [1990] 2 S.C.R. 151, the Court recognized the jurisprudence revealed two main approaches under the confessions rule - one narrow and the other broad. [13] The narrow approach, originating in Ibrahim v. The King, [1914] A.C. 599 (P.C.) and adopted in Canada in cases such as Boudreau v. The King, [1949] S.C.R. 262, gave the accused only a "negative right" - the right not to be tortured or coerced into confessing by threats or promises. Confessions were excluded only where authorities held out explicit threats or promises to the accused. [14] The much broader approach, recognized in Hebert as persisting "as part of our fundamental notion of procedural fairness": p. 166 and Oickle at para. 25, focussed not only on reliability, but on voluntariness conceived more broadly. It is an approach described by McLachlin J. in Hebert where "[t]he absence of violence, threats and promises by the authorities does not necessarily mean that the resulting statement is voluntary, if the necessary mental element of deciding between alternatives is absent": p. 166 and Oickle at para. 25. [15] Justice Iacobucci went on to discuss this broader conception of voluntariness at paras. 26-27, ultimately concluding that the confessions rule clearly embraces more than the narrow approach, rather it is concerned with voluntariness, broadly understood. The Court wrote: [26] This [broader approach] is most evident in the so-called "operating mind" doctrine, developed by this Court in Ward, supra, Horvath v. The Queen, [1979] 2 S.C.R. 376, and R. v. Whittle, [1994] 2 S.C.R. 914. In those cases the Court made "a further investigation of whether the statements were freely and voluntarily made even if no hope of advantage or fear of prejudice could be found": Ward, supra, at p. 40. The "operating mind" doctrine dispelled once and for all the notion that the confessions rule is concerned solely with whether or not the confession was induced by any threats or promises. [27] These cases focused not just on reliability, but on voluntariness conceived more broadly. None of the reasons in Ward or Horvath ever expressed any doubts about the reliability of the confessions in issue. Instead, they focused on the lack of voluntariness, whether the cause was shock (Ward), hypnosis (Horvath, per Beetz J.), or "complete emotional disintegration" (Horvath, supra, at p. 400, per Spence J.). Similarly, in Hobbins v. The Queen, [1982] 1 S.C.R. 553, at pp. 556-57, Laskin C.J. noted that in determining the voluntariness of a confession, courts should be alert to the coercive effect of an "atmosphere of oppression", even though there was "no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence"; see also R. v. Liew, [1999] 3 S.C.R. 227, at para. 37. Clearly, the confessions rule embraces more than the narrow Ibrahim formulation; instead, it is concerned with voluntariness, broadly understood. [16] Justice Iacobucci then moved on to discuss the interplay between the confessions rule and the Charter, confirming that the common law confessions rule can offer individuals protections beyond those guaranteed in the Charter. In other words, the Court held that the confessions rule offers broader protection to an accused challenging the admissibility of a confession than does the Charter. This is so for a number of reasons. [17] First, the confessions rule applies whenever a person in authority questions a suspect, whereas an accused must be arrested or detained for the protections of ss. 7 and 10(b) of the Charter to apply. [18] Second, the Charter applies a different burden and standard of proof from that under the confessions rule. Under the confessions rule, the Crown bears the burden of proof to show beyond a reasonable doubt the statement was voluntary. Under the Charter, the burden rests with the accused to show, on a balance of probabilities, a violation of his or her constitutional rights. [19] Third, the remedies are different. Under the Charter, a breach does not lead to automatic exclusion of the evidence. Evidence will only be excluded if its admission would bring the administration of justice into disrepute. A violation of the confessions rule automatically and always warrants exclusion: paras. 28-31. [20] With this background analysis, the Court in Oickle then began to define the nature and scope of the "modern confessions rule". [21] The Court began by highlighting the twin goals or objects of the confessions rule - protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes: para. 33. The Court approved an explanation of the tension between these goals provided by Martin J.A. in R. v. Precourt (1976), 18 O.R. (2d) 714 (C.A.) at 721 at para. 33: Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation. . . . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible [22] The Court then emphasized that all of those involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of those twin goals or objectives: para. 33. [23] The Court then discussed the problem of false confessions in the context of the overriding concerns of the criminal justice system that the innocent must not be convicted (paras. 34-46) and then outlined how the modern confessions rule responds to these dangers. [24] The Court ultimately concluded that in order to address concerns about the reliability of confessions and the dangers of false confessions, courts applying the confessions rule must take a contextual approach that considers all relevant factors. Four factors to examine are whether the statement was made (1) without threats or promises by a person in authority, (2) in an atmosphere free of oppression, (3) by an accused with an operating mind, and (4) without impermissible police trickery that would shock the community: Oickle at paras. 47-67. [25] Madam Justice Dickson, as she then was, summarized these factors in R. v. Deboo, 2014 BCSC 1949 at paras. 53-59, aff'd 2016 BCCA 62: Threats or promises [53] Threats or promises, standing alone or combined with other factors, will render a statement inadmissible if they raise a reasonable doubt about whether the accused's will was overborne and thus the statement was made involuntarily. This is so because there is a risk that confessions which are prompted by threats or promises are unreliable. Nevertheless, some forms of inducement are permissible. For example, appeals to conscience or spiritual beliefs generally do not produce involuntary confessions. In all cases, the key issue is whether, in one way or another, a quid pro quo was offered by police. If so, the confession will be inadmissible: Oickle, paras. 48-57. Oppression [54] An atmosphere of oppression can also impact upon a statement's reliability. As with threats or promises, this is because oppression might produce false confessions. For example, in oppressive circumstances an accused person might make a stress-driven confession to escape those conditions. Alternatively, his or her will might be overborne to the point of self-doubt and a confession might be prompted based on the oppression: Oickle, paras. 58-62. [55] A wide range of factors might contribute to the creation of an oppressive atmosphere. For example, oppression might be found where a vulnerable interview subject is deprived of needed food, sleep, or medical attention; denied access to counsel; or subjected to excessively aggressive or intimidating questions over a prolonged period. Legitimate means of police persuasion such as pointed references to incriminating evidence, however, are permissible. On the other hand, persistent police questioning in the face of repeated assertions of the right to silence could support a conclusion that the subject's will was overborne and thus render a statement involuntary: Oickle; Singh, para. 47. [56] The assessment of whether police conduct is so oppressive as to overbear an accused's person free will is a matter of degree and highly fact-specific. In R. v. Singh, 2003 BCSC 2013, for example, Bauman J. (as he then was) found a statement was voluntary and obtained without Charter violation despite the fact that the accused asserted his right to silence 18 times and the questioning continued nevertheless. This conclusion was upheld on review at both appellate levels. In the Supreme Court of Canada, Charron J. remarked that the number of times an accused asserts the right to silence is part of the overall assessment in such cases, but not determinative. The ultimate question always is whether the accused exercised free will by choosing to make a statement: Singh, para. 53. Operating Mind [57] A confession must be the product of an operating mind to support a finding of voluntariness. The operating mind criterion concerns the reliability of the confession and the accused's capacity actively to choose whether to speak to a person in authority. It requires that the accused knows what he or she is saying to such a person and that what is being said can be used to his or her detriment. However, a higher degree of awareness or cognitive capacity need not be established. In particular, it is unnecessary for the court to consider whether the accused is capable of making a good or wise choice or one that is in his or her best interests: Oickle, paras. 63-64; R. v. Whittle, [1994] 2 S.C.R. 914, para. 45. [58] Evidence of intoxication or mental illness may raise a reasonable doubt as to whether an accused person has sufficient cognitive capacity to satisfy the operating mind criterion. As to the former, a high degree of intoxication will typically be required to render a statement inadmissible on this basis. Statements made to persons in authority by intoxicated individuals often meet the operating mind test and are, therefore, ruled admissible. In each case, as previously noted, the inquiry is highly fact-sensitive: R. v. Groves, 2013 BCCA 446. Impermissible Police Trickery [59] Considerations of police trickery relate to maintenance of the integrity of the administration of criminal justice. Accordingly, their use involves a distinct enquiry. Police trickery that is so appalling it would shock the community may render a statement inadmissible. For example, if a police officer pretends to be a chaplain or a lawyer in an effort to elicit a statement any statement so elicited may be excluded on this basis. On the other hand, courts are wary not to limit police discretion unduly taking into account the very real challenges associated with investigating and detecting crime: Oickle, paras. 65-67. [26] Of course, reliability of a confession is not the only concern. As Iacobucci J. discussed throughout Oickle, the confessions rule extends to protect a broader conception of voluntariness than just reliability. The Court summarized the confessions rule at paras. 68-71 as follows: (e) Summary [68] While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. [69] The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. [70] Wigmore perhaps summed up the point best when he said that voluntariness is "shorthand for a complex of values": Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, § 826, at p. 351. I also agree with Warren C.J. of the United States Supreme Court, who made a similar point in Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207: [N]either the likelihood that the confession is untrue nor the preservation of the individual's freedom of will is the sole interest at stake. As we said just last Term, "The abhorrence of society to the use of involuntary confessions . . . also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." . . . Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case. See Hebert, supra. While the "complex of values" relevant to voluntariness in Canada is obviously not identical to that in the United States, I agree with Warren C.J. that "voluntariness" is a useful term to describe the various rationales underlying the confessions rule that I have addressed above. [71] Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for "some palpable and overriding error which affected [the trial judge's] assessment of the facts": Schwartz v. Canada, [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz). [27] In R. v. Singh, 2007 SCC 48, the Supreme Court of Canada was called upon to consider the scope of a detainee's right to silence under s. 7 of the Charter and its interplay with the confessions rule. [28] Writing for the majority, Charron J. examined the nature and scope of the confessions rule, particularly in respect of its commonality with the right to silence at paras. 27-40. [29] The Court began by observing that the right to silence, although now constitutionally entrenched in the Charter, long pre-dates the Charter. The Court confirmed its definition of the common law right to silence in Rothman v. The Queen, [1981] 1 S.C.R. 640, writing that the right simply "reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning": para. 27. [30] The Court then explained what this right does not mean. While it recognizes an individual's right to remain silent, it does not mean that a person has the right not to be spoken to by authorities. Concluding that the common law also recognizes the importance of police interrogation in the investigation of crime, the Court wrote: [28] What the common law recognizes is the individual's right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime. [31] Charron J. went on to reinforce the principles outlined in Oickle, including the notion that voluntariness is broad-based and is not only concerned with the reliability of the statement. In this regard, the Court held at para. 30 in part: [30] As this Court stated in Oickle (at para. 70): "Wigmore perhaps summed up the point best when he said that voluntariness is 'shorthand for a complex of values': Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, § 826, at p. 351." These values include respect for the individual's freedom of will, the need for law enforcement officers themselves to obey the law, and the overall fairness of the criminal justice system: see Oickle, at paras. 69-70, citing Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207. [32] Following this confirmation of the broad-based approach to voluntariness, the Court recognized that the confessions rule has "long included the common law principle that a person is not obliged to give information to the police or to answer questions": para. 31. As a facet of the principle against self-incrimination, the right to silence was part of the confessions rule long before the Charter came into force in 1982. In other words, the confessions rule clearly includes the right of an individual to make a meaningful choice whether or not to speak to authorities: Singh at paras. 34-35. [33] As a result, the Court in Singh found that the confessions rule requires a court to scrutinize whether the accused was denied his or her right to silence. It held: [36] On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the suspect's ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test. [37] Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well. If the circumstances are such that an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test. [39] the confessions rule effectively subsumes the constitutional right to silence in circumstances where an obvious person in authority is interrogating a person who is in detention because, in such circumstances, the two tests are functionally equivalent. [34] In other words, the confessions rule enhances the protection of an individual's right to silence. The "presence of a doubt as to the exercise of the detainee's free will in making the statement" will vitiate voluntariness: para. 38. [35] Singh also affirmed what was said in Hebert and Oickle about not losing sight of the balancing that is required between the twin goals informing the confessions rule - the individual's right to choose and the state interests in the effective investigation of crime. In this regard, Charron J. wrote: [45] More importantly, Mr. Singh's proposition ignores the state interest in the effective investigation of crime. The Court in Hebert stressed the importance of achieving a proper balance between the individual's right to choose whether to speak to the authorities and society's interest in uncovering the truth in crime investigations. As I stated earlier, the suspect may be the most fruitful source of information. While the fact of detention unquestionably triggers the need for additional checks on police interrogation techniques because of the greater vulnerability of the detainee, the moment of detention does nothing to reduce the suspect's value as an important source of information. Provided that the detainee's rights are adequately protected, including the freedom to choose whether to speak or not, it is in society's interest that the police attempt to tap this valuable source. The Court in Hebert said the following on the critical importance of achieving a balance between individual and societal interests: The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute -- in the first case because the state has improperly used its superior power against the individual, in the second because the state's legitimate interest in law enforcement has been frustrated without proper justification. [Emphasis added; p. 180.] [46] Hebert therefore set out the parameters of the s. 7 Charter right to silence to achieve this balance. Some of the limits set out by the Court were responsive to the particular facts in Hebert and, consequently, are only relevant to the situation where a detainee is interrogated by an undercover officer. They need not be repeated here. Of relevance in this case are the first two limits. I reproduce the relevant excerpts here: First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence. Second, it applies only after detention. Undercover operations prior to detention do not raise the same considerations. The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee's rights are respected. [Emphasis added; p. 184.] [36] While legitimate means of persuasion are allowed that recognize the critical balance that must be maintained between individual and societal interests, Charron J. noted at para. 47: the law as it stands does not permit the police to ignore the detainee's freedom to choose whether to speak or not, as contended. Under both the common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities [37] As Madam Justice Ker observed in R. v. Smith, 2011 BCSC 1695 at para. 127, the Supreme Court of Canada reaffirmed in R. v. Sinclair, 2010 SCC 35 at para. 60 and R. v. McCrimmon, 2010 SCC 36 at para. 26, that the continuation of an interview in the face of the detainee's repeated expression of a desire for the interview to end and to speak with counsel which constitute implied assertions of the right to remain silent may raise a reasonable doubt as to the voluntariness of any subsequently given statement. [38] With all of these principles in mind, I turn to the circumstances of this case. ANALYSIS [39] I will begin with what this case is not about. This is not a case where police offered A.D. any impermissible inducements, threatened him in any way or used any trickery. No reasonable doubt exists on these issues. This is also not a case where A.D. lacked an operating mind or any doubt exists on that issue. To the contrary, A.D. was a sober, mature, thoughtful, experienced former member of the RCMP, who was well versed in police investigations and interviews of detainees. In addition to the legal advice he received prior to the interview, he was well familiar with his Charter rights and how to exercise them, having afforded others the same rights during his RCMP career. [40] This case is about the broad concept of oppression and whether the constellation of factors at play caused A.D.'s will to be overborne such that there is a reasonable doubt that his choice to discuss the allegations was not the product of a free will to speak to authorities. [41] A.D. was 59 years old at the time of his arrest at about noon on March 6, 2014. Following his arrest, he was taken to the RCMP Detachment at Airdrie, Alberta. He was provided with his Charter rights and exercised his right to counsel. [42] At approximately 5:25 p.m. that same day, A.D. was taken to an interview room in the detachment in order to be interviewed by Sergeant Darren Carr of the E-Division Major Crime Section, interview team. The video and audio recorded interview lasted approximately eight and a half hours. All of Sergeant Carr's interactions with A.D. were captured on the recordings. A.D. was offered food, drink and three bathroom breaks during the interview. He accepted all of these invitations and asked for these things as well. There is no issue that he was treated very well and his physical needs were adequately met. [43] Sergeant Carr, a former crisis intervention worker, is a highly trained and experienced RCMP interviewer. He was, at all times with A.D., polished, polite, respectful and pleasant. He did not raise his voice. He showed compassion for and respect toward A.D. through his words and, on occasion, through appropriate physical gestures such as placing a comforting hand on A.D.'s shoulder or shaking his hand. Having watched several hours of their interactions and seen him testify in court, I conclude Sergeant Carr's concern and compassion for A.D. was genuine. [44] A.D., a former member of the RCMP, was employed as an Alberta sheriff at the time of the interview. He was also respectful and pleasant to Sergeant Carr. Other than one or two occasions where he asserted himself firmly, A.D. indicated he understood Sergeant Carr had a job to do and respectfully allowed him to do it. Their interactions demonstrate a genuine, mutual respect for one another. [45] A.D. expressed his knowledge of his Charter rights, particularly his right to silence, many times throughout the interview, sometimes with reference to his experience affording those rights to others in the course of his own career or with reference to the advice he had received from his lawyer. [46] A.D. also exercised his right to silence verbally or through his conduct throughout much of the interview. A.D. was stoic and respectfully attentive throughout much of the interview, patiently listening to and watching Sergeant Carr's presentation. He mostly sat back in his chair, hands in his trouser pockets, watching and listening, until what I call the "turning point" in the interview. [47] The interview followed a progression. A.D. almost immediately told the officer he would not be answering any questions and clearly communicated his knowledge of and desire to exercise his right to silence. Sergeant Carr proceeded to talk to him, at one point emphasizing that it was his job to give A.D. an opportunity to speak to avoid a "one track investigation" and "tunnel vision". [48] Sergeant Carr spoke to A.D. in lengthy monologues as he tried to build a rapport and develop a dialogue. A.D. participated in the conversation when general topics were discussed. At these times, the two men seemed quite friendly and genuinely shared some common experiences. However, for at least the first several hours, A.D. remained silent when Sergeant Carr spoke of topics related to the investigation. On these topics, Sergeant Carr's monologues focussed on developing a central theme of trying to appeal to A.D.'s morality and conscience. By appealing to his sense of morality, he hoped A.D. would choose to speak about the allegations. [49] Sergeant Carr repeatedly emphasized that he was seeking the truth from A.D. In the pursuit of his general conscience-based theme, he developed several sub-themes, including the moral desirability of providing answers and closure to the complainants and to his own family as well. Here he emphasized the strength of the Crown's case, the complainants' ongoing suffering, and everyone's need to understand why he had done these things. [50] Sergeant Carr also wove through the interview discussion the well-known case of Sheldon Kennedy, a former NHL hockey player who came forward after many years of self-destruction to disclose his long time abuse at the hands of his junior hockey coach. [51] Although A.D. remained silent when topics related to the investigation were discussed, he appeared attentive throughout. When he chose to speak, he appeared comfortable and confident. [52] A.D. raised his desire to speak with his lawyer at several points in the interview. Early on (page 8 of the transcript), A.D. told Sergeant Carr that he would rather not discuss or say anything unless his legal counsel was present. He said he would like his lawyer present because he would not be able to "remember or hear things at this point". Sergeant Carr asked him what he meant by this. A.D. replied "Just what I said. So I won't remember what's being said here. Um, given the state of things as they are right now " Sergeant Carr took A.D. to mean that he wanted his lawyer present to help him remember what was being said in the interview. The two then discussed their shared knowledge that Sergeant Carr had a job to do and agreed that A.D. had no right to have a lawyer present during the interview. [53] These positions - that A.D. could or would not answer questions on the advice of counsel and that Sergeant Carr nevertheless had a job to do - were reiterated by the men on several occasions as the interview unfolded. One of those occasions (page 48 of the transcript), occurred in a moment of levity. After a lengthy monologue, Sergeant Carr told A.D. he felt like he was speaking with his ex-wife because he was having a one-sided conversation. A.D. chuckled and told Sergeant Carr that he had "warned" him - referring to his expressed choice to remain silent. [54] Later, at page 117/118 of the transcript, when Sergeant Carr was developing one of his conscience-based themes involving A.D.'s family, he asked A.D. if he had the courage to start the healing process. He asked him what was going through his mind and what his fears were. In this context, A.D. said "That's why I want to talk to a lawyer. I understand your spot, but he's got a spot in life too." Sergeant Carr replied: "well lawyers are there to help us get away with things right?" A.D. disagreed and said "not necessarily". Sergeant Carr went on to say: Sgt. CARR No, not always but, but I think that's why you don't want to say anything. I think you're hoping that there's some way out of this right? And I'm here to tell you that there isn't. Uh you absolutely have the right to remain silent there's, there's no, no getting around that. That's a fundamental right that you have as a Canadian. We all have that um, that's not the reaction that people that you care about thought, they said you will tell the truth and you will be honest. That's what they're expecting and that's what they believe right? [A.D.] Mm hm. Sgt. CARR Um that's just advice. Um, the truth's gonna come out at some point. It's just what's the forum gonna be I suppose is what you've got to struggle with. And I tell you what, it's more sincere when it comes out here and now, rather than when you're doing it. The first time that Graeme JAMES took responsibility well he didn't really take responsibility for what he did. He admitted what he did but sugar coated it. It was at his parole hearing, where he'd already done 2 and a half years in jail. Right it's not sincere, right? It's like if I walk into the locker room and you know, the buddy of mine who would know uh been you know playing tennis and we get showered up and we're in the locker room and I see him, going inside my locker and pulling out my wallet and taking a hundred bucks, out of my wallet. And I say to him Tim what you doing? Taking a hundred bucks out my wallet. He said to ya, you know what? Talk to my lawyer a year from now and he'll tell you why I did it. And I'll tell you then with my lawyer why I did it. It's not gonna mean any thing else to me. Right? I would expect him to say, I'm sorry man you've caught me I'm caught red handed I had financial problems. I you know, please forgive me, I can you understand? Right? That's sincerity, right? That's what you're faced with right now is being sincere and being believed. And, I'd like to think you care about the victims and I know you, you certainly care about your family. Let's make no bones about it, they're victims as well, because if you were to go to jail and I don't know if you will or not, then that's gonna impact their lives right? [K.'s] relationship with you would obviously be, be different. (Indecipherable) to say it's over. Now your [family member's] relationship will be different. Anybody else that you care about will be different, right? It's going to be a different relationship. And they're gonna be angry for that. They're gonna be angry that urn you've taken something away from them, right? Um uh uh I think that uh in in my experience with people that are close to people who know the good in them, they're gonna understand. Right? Um and I think they're gonna support you no matter what. You could, this is all about being honest right now. An you've got to start being honest. An this is an opportunity to like I say for you to reconcile everything that's happened in your past. Um, and moving ahead you've got to decide the person that you're gonna be. Takes some courage and it's a bit of a leap of faith. You know you've got one foot over the cliff and you've got to decide, do I jump into the abyss? Well, you know the abyss is there you're gonna have to jump into it at some point. And do you want to be the guy who, takes the hundred dollars out of the wallet and says my lawyer will tell you a year from now? Or do you want to be the guy that, is honest, courageous and does the right thing when he's caught? And that's ultimately what you have to decide what to do. Cause you're not just gonna be lying to yourself you're gonna be lying to the people that you care about. K? And they're not gonna understand well my lawyer it has a place in this as well but they're not gonna see it that way. Right? [55] When asked about this exchange, Sergeant Carr explained that he was not denigrating counsel when he said "lawyers are there to help us get away with things". He explained that he was, at the time, trying to appeal to A.D.'s morality and how he could help the victims and his own loved ones by discussing the allegations. In context, this explanation makes sense. I find that at no time in the interview did Sergeant Carr denigrate counsel or counsel's advice. [56] A.D. was confident and, at times, assertive. A short time after the above exchange, at page 135 of the transcript, in response to a question about whether his memories from that time were happy ones, he said "Like I said you know what I ya I forgot your first name". When Sergeant Carr gave him his first name he continued: [A.D.] Um, I really don't mind speaking to you however, on advice I won't speak until we're done uh Sgt. CARR Ok well I'm only asking [A.D.] No does that make sense?... Sgt. CARR You uh I'm [A.D.] No and I understand that and Sgt. CARR I'm asking you about your life [A.D.] No no I understand that Sgt. CARR I'm not asking about [A.D.] So just Sgt. CARR Anything specific [A.D.] I would rather you go through the thing and then. Sgt. CARR Ya [A.D.] Uhh. Sgt. CARR I mean the reason I'm showing you this is um I mean I have an objective in doing this. I'm trying to get you to see, you know what's happened with the investigation right? And uh I've sort of the jeopardy that you're facing. It's ultimately up to you whether you choose to speak or not I I can't [A.D.] Mm hm. Sgt CARR Make you speak. Um, there's a bit of a journey and you know nothing has changed. It's all about um, being upstanding it's about being accountable right? So this is all the evidence although I'll sort of give you a sort of a bit of an overview of the investigation. [57] After these first few hours of rapport building and developing conscience-based themes, Sergeant Carr began to show A.D. small portions of the complainants' recorded interviews. A.D. drank his tea and appeared attentive. [58] After short clips from some of the statements were played and Sergeant Carr discussed the allegations of some others, Sergeant Carr asked A.D. if he remembered one particular complainant. A.D. replied "No just not gonna answer right now. Like I told you, I would answer at the end", suggesting that he would discuss the matters pertaining to the investigation once Sergeant Carr's presentation of the evidence or perhaps the interview itself, were over. Sergeant Carr said "ok" and played more recordings. [59] It was about 11 p.m. Sergeant Carr asked him if he felt bad for these people. A.D. replied "of course". To Sergeant Carr's follow up question, A.D. said "It's not, not my intention that I can't say anything" (page 153 of the transcript). Sergeant Carr said: "you can say, don't pull that game saying that you can't say anything. You're a free thinking individual who who can choose to do the right thing, right?" A.D. replied "And I told you I will" "So take me at my word, and I'll take you at yours." Sergeant Carr then asked when it would be that A.D. would choose to the right thing. A.D. said he wanted to speak to his lawyer and then he would speak to Sergeant Carr. Sergeant Carr said he hoped A.D. was sincere and A.D. interjected to ask "Have you trusted me so far?" Sergeant Carr said he did. A.D. said he trusted Sergeant Carr too. [60] The exchange continued. A.D. said that when he was investigating something he had always afforded a detainee the courtesy of going away and speaking to their lawyer personally. He asked that Sergeant Carr provide him with the same courtesy (page 155/156). [61] A.D. then said "I think I've been overly fair sitting through this instead of not even sitting here." He explained he was sitting through the interview out of courtesy for the whole investigation. It was a courtesy he was extending not just for Sergeant Carr, but for the people they had been discussing. Again, A.D. acknowledged that Sergeant Carr had a job to do. [62] Sergeant Carr continued to try to persuade A.D. and A.D. continued to assert himself. The conversation continued: Sgt. CARR And this is not about me uh, I'm not gonna be you know I'm not it doesn't impact my life. But it is gonna absolutely impact these people's lives without closure and without answers. And it's absolutely gonna impact [A.D.] Mm hm. Sgt. CARR Your family's life right? And uh you know it comes down to again we talked about being at that cross roads wherever you're gonna go left or whether you're gonna go right. Whether you're gonna be the person who says well you know I'll tell you later wha after I've talked to my lawyer um. I want you to be sincere and if you want to talk to me, I would like you to do it now, right? Uh I mean, in my mind when somebody says well I'm I'm gonna uh attach these conditions it's because they're still angling. [A.D.] I don't think that's fair to say conditions uh I think it's it's ff it's a fair thing to ask. Sgt, CARR Mm hm. Ok. [A.D.] Let's be fair. You're talking 40 years ago, pretty much 38, 40 years ago. Sgt. CARR Ya. [A.D.] You're getting up there. Sgt. CARR 1976 to [A.D.] Right? Sgt. CARR 1981 right? [A.D.] So let's be fair, I would ask Sgt. CARR Oh ya. [A.D.] You to recall 40 years ago today and can you tell tell me honestly, what you did? Sgt. CARR I'm sure, I'm sure I wouldn't remember every detail absolutely and I'm [A.D.] And so that's Sgt. CARR Sure they [A.D.] What I'm suggesting Sgt. CARR They don't remember [A.D.] To you Sgt CARR All the details as well but. [A.D.] Right. Sgt. CARR Uh nobody's gonna be able to help you with that an an I don't think anybody expects you to say you know from A to Z this is what happened. I think really what we're looking for is an acknowledgement that these people are being truthful. That uh that um, you know gen general terms what was going on in your life at the time that led to this. I don't think anybody, belie uh uh uh absolutely it's a long time ago. I don't think anybody's gonna be able to to remember every detail. You may have been using drugs at the time as well. You may have been drinking you know, all those things are gonna impact memory absolutely. I I don't doubt that at all. But I think really what what we're trying to get to is that you're validating what they're saying. Ya there were things that I did that I'm not proud of. There were mistakes that I made. I want these people to realize that I wasn't a monster, I was a young person, right? I think that's what we're looking for. That's well that's what I'm looking for right? That make sense? [A.D.] Mm hm. Sgt. CARR I don't think anybody expects you to remember every gory detail. Um, but even though you may not remember every detail I'm sure you remember, these things right? You're not gonna say that oh I have absolutely no recollection of any of these. There's a story to be told right? And again it it comes back to that adding the color to the photograph and trying to get to like the why. Like why this happened, what was going on in [A.D.'s] life in 76 to 81 that that left to this? You know? You were in your mid, it's not like you were 12 years old. You were in your early 20's so you're gonna have some recollection right? It's not like you were you know, I think back to when I was 20 I can, I can remember a lot of key thinks in my life around that time right? Can I remember everything? No absolutely not. But I can remember key things. And, I certainly hope that 1976 to 1981 was the where these things were happening was a was a bit of a, um an unusual period in your time and that wasn't so normal that it's all caught in the background. I certainly hope that this was such a contained number of things that happened in a relatively short period of time that you know what you did was wrong, right? And um, you know this is your opportunity to explain what was going on and this is your opportunity to give these people some closure. And, you know I I certainly hope that you're going to explain to people that you care about be that [K.] or or your [family member] or your [family member] or whoever else is important in your life. Cause they're gonna be absolutely asking you why and I certainly dd hope you don't say to them, I will tell you but after I've spoken to my lawyer because they're not gonna see that as sincere right? Right? Um. [A.D.] That's your opinion, I think but. Sgt. CARR Well perhaps perhaps. It's an opinion based on, having sat in rooms like this with lots of people and and [A.D.] Everybody's Sgt. CARR And to talk [A.D.] Different Sgt. CARR (Indecipherable). [A.D.] Let's be fair. Sgt. CARR Ya true, everybody's individual absolutely, um. [A.D.] So I'm affording you that respect and ask it back that's all. Sgt. CARR Ya well you have a right to not say anything. That's fundamentally your right. I have a job to do. [63] Again, A.D. asserted himself and said "As I told you if I have something to say I will say it to you" (page 159). Sergeant Carr then told him that he would show him some of the appeals from the some of the victims. A.D. told him he would rather not and that he thought he "had enough today". Sergeant Carr said he was duty bound to show him. A.D. said "well I don't want to sit and watch it thank you." He said he was tired and asked the time. It was approximately 11 p.m. Sergeant Carr proceeded to show the appeals. [64] This was the only time that A.D. verbally expressed fatigue. The video reveals that he yawned on several occasions in the later stages of the interview. Sergeant Carr testified that he paid particular attention to A.D.'s ongoing well-being, including his fatigue. He said he did not observe anything that caused him to think A.D. was overly fatigued or the situation was becoming oppressive. Having observed the entirety of the eight and a half hour interview, I did not observe any outward indicia, other than yawning in the later stages, that A.D. was overly fatigued. To the contrary, he seemed alert, attentive, responsive when he chose to be, and engaged. [65] After appeals for apologies or closure from some of the complainants were played, Sergeant Carr asked A.D. if he was sorry for what happened. A.D. replied "I already answered you". When asked to clarify, A.D. confirmed that he did not want to say anything until he spoken to his lawyer. Sergeant Carr played more appeals from the complainants. A.D. continued to maintain his silence. [66] A.D. engaged with Sergeant Carr somewhat when Sergeant Carr next played a plea from A.D.'s ex-wife. On the recording, she said that she and other members of A.D.'s family were supportive of him and would be understanding, but required him to take responsibility and "realize that it's not just you. There are a lot of other people involved " (page 168). A.D. agreed with Sergeant Carr that she was a "smart lady". [67] The turning point occurred at approximately 11:30 p.m. After showing A.D. the appeal from his ex-wife, Sergeant Carr discussed another NHL hockey player, Theoren Fleury, who disclosed abuse by his former coach. [68] A.D. acknowledged having read parts of Mr. Fleury's book on the topic. Sergeant Carr asked him if the book had "hit home as to like things that had happened here?" referring to the allegations against A.D. A.D. replied "Other things". Sergeant Carr continued "Ok. Did something happen in your life that kinda, lead you down this road?" A.D. replied "I can't say. That's why I am having a problem. That is why I want to talk to my lawyer". Sergeant Carr then asked a question to which he genuinely did not know the answer: "Were you a victim of abuse?" A.D. replied "That's why I want to talk to my lawyer". [69] A.D.'s body language changed at this point. He hung his head at times and held his head in his hands for period of time. Sergeant Carr gently persisted. He told him that he realized that A.D. was not making excuses. He expressed empathy and told him that they could put the issue concerning him in a box and focus instead on giving the complainants closure. A.D. said "I know, but I'm saying that the whole thing becomes an issue because it's an an I don't want to say something that I'm not supposed to or can't. I made you a promise and I'll keep my promise. But I can't right now until I speak to him", referring to his lawyer. A.D. then said that he realized that Sergeant Carr had probably already spoken to some people that had some knowledge. Sergeant Carr, again truthfully, said he did not really know what they were "talking around" here. A.D. replied "about my past and my, abuse", "my personal". Sergeant Carr asked him if a particular family member had done something and A.D. said "I can't say." [70] Sergeant Carr again gently persisted. He said "We can talk around it in the third person, I'm not asking you to get somebody else in trouble". A.D. said that he had "been around the block" (page 173) and that "everybody's a victim or certain people are victims". Sergeant Carr told him, honestly, that he did not know about A.D's victimization in the past. A.D. said he was surprised by this. He started to cry. Sergeant Carr consoled him and told him that "it's a common thing with somebody who's a victim of abuse that they become [an] abuser .You're a victim as well [A.]." Sergeant Carr made it clear that A.D. did not have to name his abuser and that he thought people would understand now. A.D. said he had "carried it all his life". [71] A.D. continued to cry. Sergeant Carr continued to press the theme of explaining to the complainants and his own family why he did what he did. He continued to express what I conclude was genuine sympathy and concern for A.D. A.D. continued to not discuss the allegations, but did answer affirmatively when he was asked whether he had told anyone about his own abuse. He said he had not fully discussed it. Sergeant Carr offered "why don't you try me", to which A.D. said "Aw, I can't I told you because that's why I want to talk to a lawyer about that because " Sergeant Carr interjected and told him that he was not asking him to identify the perpetrator to which A.D. replied "well the thing is if I disclose to you you have to investigate and I can't do that. You know that." He told Sergeant Carr he was not stupid. Sergeant Carr reassured him that he was not trying to investigate A.D.'s abuser, he was trying to understand what led A.D. to the place he was. He told him that he could choose to make a formal complaint later. [72] Sergeant Carr persisted. A.D. continued to simply listen. Shortly after midnight, with the assistance of Constable Roy, they showed A.D. a plea from a family member, also a member of the RCMP. This family member stressed the need for A.D. to be honest and his support of him if he did so. A.D. asked to use the washroom. The request was accommodated immediately. [73] When A.D. came back into the interview room a few minutes later, it was approximately 12:20 a.m. That A.D. remained alert and engaged was clear when Sergeant Carr asked him if he had played a portion of his ex-wife's video recording where she spoke about "how this is not the 1950s". A.D. recalled that he had and told him so. [74] Sergeant Carr then played an appeal from A.D.'s partner. His partner said that A.D. was an honest person who goes out of his way to help people and takes responsibility for his actions. Sergeant Carr later asked him if his partner deserved to know the truth. A.D. said "Yes he does". A short while later, A.D. began to talk about the allegations against him. [75] Beginning at page 200, Sergeant Carr asked him: Sgt. CARR So [S.Z.] was the first and [S.N.] was the last, is that true? Did you, did you kind of misunderstand what was going on? Did you ss did you think that these were, like sort of consenting situations? Did you just have a misunderstanding? Did you misread them? Or were you were you so messed up that you didn't really understand what was going on? [A.D.] I know you won't believe me but I don't remember very well. Sgt. CARR I can believe a lot of it was probably ver I'm sure there was alcohol and drugs right? [A.D.] Mm no drugs. Sgt. CARR Ok. [A.D.] I don't think I ever took drugs. Sgt. CARR Probably alcohol right? [A.D.] I was always over indulging is a. Sgt. CARR Ya. [A.D.] Younger person. Sgt. CARR Well that's what we did as young people right? Life was a party or life was for for enjoying right? You know we did everything to excess, as young people and I believe that you don't remember everything but I I know you you remember these things happening though right? [A.D.] No I don't specifically. Unfortunately, but I will tell you what I can tell you but I don't know Sgt. CARR That's all I'm asking for I I'm only asking for what you remember. I don't expect you to say anything else, beyond what you remember and what you know. These people are not lying right? Their experiences are real right? What they experienced. [A.D.] It definitely comes across as such. Sgt. CARR Ya. And you want to help them to heal right? [A.D.] I do. Sgt. CARR Ya. [A.D.] They're pointing the finger at me and I have no choice. Sgt. CARR What what do you [A.D.] I have no defence of anything anyways obviously. (Sighs) Sgt. CARR Perhaps no legal defence but there [A.D.] No and I'm Sgt. CARR There there there's [A.D.] I'm just saying is Sgt. CARR Legal and [A.D.] Not not even going to the legal side of things Sgt. CARR I'm talking morally [A.D.] I'm just saying if something happened morally exactly, then I was responsible. Uh [76] A.D., for a short time, continued to assert a poor recall in respect of the allegations. Then, at page 203 of the transcript, another officer came into the room and truthfully told A.D. and Sergeant Carr that he had just learned the identity of A.D.'s abuser from one of A.D.'s family members. This was not a fabrication or some form of trickery. A.D. began to cry. The other officer left the room to go back to continue to speak to this family member a short time later. It was 12:34 p.m. [77] Sergeant Carr expressed what I find to be genuine empathy for A.D. and told him he was sorry about what happened to him. He continued on with his theme of "hurt people hurt". A.D. then discussed his own experiences of abuse, in general ways, as a child at the hands of various persons. The abuse, he said, went on for a few years until a time when A.D. was older and big enough to fight back. [78] Sergeant Carr turned the conversation back to the allegations facing A.D. A.D. at first said he did not remember exactly. He said: Sgt. CARR Well what do you remember? [A.D.] I don't, I know names and people when they said what happened, and I'm not saying it's all ch, the way they said it but Sgt. CARR Well just [A.D.] If they said that then I'm going, to take responsibility for that Sgt. CARR Ok. [A.D.] Cause I can't fucking remember. I don't know. [79] When asked about what he recalled about the first complainant, A.D. said he did not remember but "will accept whatever is said". Sergeant Carr would not accept this and asked for details. [80] A.D. continued for a time to assert that he did not remember, but "would take acceptance" of what the complainants said happened. At page 214, he said "Whatever they've said, I will accept." He said he would apologize to them personally. Sergeant Carr pressed for details of what he remembered. A.D. said he did not recall 100% what happened, but having watched the statements he "obviously did something". [81] Constable Roy came into the room and asked A.D. to imagine how he would feel as a victim if his abusers accepted limited responsibility the way he was doing by saying he could not remember. He urged A.D. not to take the easy way out. Constable Roy's tone of voice and demeanour were more authoritative and firm than Sergeant Carr, but I would not characterize Constable Roy as aggressive or threatening in any way. [82] When Constable Roy left the room, A.D. spoke about what he remembered, providing many details. Some of the details he provided were different than some of the details alleged by the complainants. A.D. admitted to having sexual contact with many of the complainants, but specifically denied sexual contact with one complainant. He recalled giving that person back rubs to help him with "horrific" headaches. [83] A.D. later spoke directly to the camera and apologized to each of the complainants for what he had done. [84] When I consider all of the circumstances from an objective point of view, mindful of A.D.'s personal characteristics, I conclude that the turning point occurred because Sergeant Carr's appeals to A.D.'s conscience had the desired effect. When A.D. was provided with information that revealed his own victimization as a young person, he finally felt the empathy Sergeant Carr had been encouraging him to feel. [85] I am satisfied beyond a reasonable doubt that A.D. did not speak of the allegations because he simply gave up on his right to silence because he felt he had no other choice, was overly fatigued, emotionally or physically worn down or otherwise as the result of any oppressive conditions. Rather, the officer's appeals to his conscience and sense of morality had the desired effect. Simply, A.D. was persuaded to talk. A.D. was a mature and uniquely sophisticated detainee, very aware of his Charter rights and how to exercise them, including his right to remain silent. He was never threatened, tricked or treated with anything other than compassion and respect. [86] While the revealing of his own abuse was the final catalyst for his decision to speak, I am satisfied beyond a reasonable doubt that A.D.'s will was not overborne in all of the circumstances and that his choice to speak was not the product of any oppressive circumstances. The Crown has met its burden. A.D.'s statement to police is admissible at trial. "S.A. Donegan J." DONEGAN J.