R. v. M.H.B.

R. v. M.H.B. Court Supreme Court Date 2016-05-20 Citation 2016 NSSC 129 Docket CRH 438124 Judge/Registrar/Adjudicator Rosinski, Peter P. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. M.H.B., 2016 NSSC 129 Date: 20160520 Docket: CRH No. 438124 Registry: Halifax Between: Her Majesty the Queen v. M.H.B. Restriction on Publication: Sections 273.6 and 486.4 Criminal Code Judge: The Honourable Justice Peter Rosinski Heard: May 11, 2016, in Halifax, Nova Scotia Counsel: Glenn Hubbard for the Crown Wayne Bacchus for the Defence By the Court: A. Voir Dire – Admissibility of Mr. B’s two statements to police Introduction [1] It is alleged that Mr. B. committed sexual assaults on November 13, 2014, and November 25, 2014, against his wife. Her complaint was made on November 25, 2014. Police took Mr. B. into custody and obtained two videotaped statements from him: the first one between 9:00 p.m. and 10:44 p.m. on November 25, 2014; and the second between 6:48 a.m. and 7:25 a.m. on November 26, 2014. There is no claim here that the statements were obtained in breach of the Charter of Rights. [2] The Crown argues that these statements should both be found to have been made voluntarily beyond a reasonable doubt - R. v. Oickle [2000] 2 SCR 3. The Defence disputes this position, and specifically argues that, “Constable MacGillivray did induce Mr. B. to give a statement to the police”. [3] The Defence also argues that the court should not review the entirety of each of those a video statements in coming to its decision regarding “voluntariness”. The Crown disputes this position. [4] If the statements are found to be voluntary, it is the Crown’s intention to rely on the statements during the cross-examination of Mr. B. should he testify, but not to make them part of the Crown’s case. [5] Thus, there are two issues for determination: 1. Is it appropriate for the court to view the entirety of both videotaped statements given by Mr. B. to the police? 2. Has the Crown proved beyond a reasonable doubt that both statements were made voluntarily by Mr. B.? Should the court view the entirety of both videotaped statements? [6] The Crown relies on R. v. Bloomfield, (1973) 10 CCC (2d) 398 (NBCA); R. v. Dennis, 2005 YTSC 18; R. v. Menzes [2001] O.J. No. 3758 (SC). It says that because it has the obligation to satisfy the court beyond a reasonable doubt of the voluntariness of the statement given, and the possibility that the absence of evidence may raise a reasonable doubt on that issue, the court should hear the entirety of both videotaped statements, as well as the surrounding circumstances leading to the first statement, and in the interval between the first and second statements. [7] Mr. B. citing Bloomfield, counters that “all portions of the video that do not go to the issue of voluntariness and admissibility are not relevant and therefore are not admissible”. He points out that “nowhere does the court say that the entire statement that the defendant made shall be heard by the trier of fact.” [8] In my view, the court should hear the entirety of both videotaped statements. [9] The Defence argues that doing so “is not an appropriate use of the court’s time and will cause Mr. B. additional and unnecessary expense and thus prejudice. It is not proper for trial fairness for the court to hear the entire statement in one arena, which may include a full denial or full admission, and then by the Crown’s own choice to not allow that in as evidence.” [10] In its distilled form, the Defence’s concern seems to be that I would hear evidence during the voir dire that arguably might be prejudicial to the fair trial rights of Mr. B., which might go unanswered if Mr. B. maintains his right to silence, and does not testify at trial. [11] In some cases, such concerns could be addressed by an accused testifying at the voir dire or calling other evidence, depending on the precise complaint relied upon by the Defence. [12] There are good reasons for the court hearing the entirety of both Mr. B.’s videotaped statements: 1. It is the best evidence of what took place between the officer and Mr. B. during those time periods – it is superior to transcriptions because it also permits the court an assessment of non-verbal responses, as well as intonations in the language used, the demeanour of the parties, their proximity to each other physically, and ultimately they are more accurate as to what the parties said/did; 2. The Crown must be given a fair opportunity to present its evidence, given its obligation to prove the voluntariness of statements beyond a reasonable doubt –this very high threshold provides built-in protections for accused persons; 3. The Defence could have argued that provision of the entire videotaped statements to me during the voir dire would be a breach of Mr. B.’s Section 7 of Charter of Rights (fundamental fairness) – or that the prejudicial effect of the evidence outweighed its probative value - R. v. Harrer [1995] 3 SCR 562 – which could lead to editing post-voir dire (e.g. in Menzes at paras. 40-47; R. v. Calnen, 2015 NSSC 318 at paras. 12-13; R. v. Beatty [1944] SCR. 73), but no such arguments were made (perhaps because I, as the trial judge, would also have therefore seen the objectionable portions – which otherwise would require a judge other than me as the trial judge, to consider this preliminary motion by the Defence); 4. In judge-alone trials, judges routinely hear evidence in voir dires which could conceivably affect their impartiality or divert them from exclusively considering the admissible evidence in the case, however, judges have the benefit of a legal presumption that they will act, according to their oath, to make all their decisions impartially and judicially; and 5. I have not provided any authority that expressly suggests I should not review the entirety of both videotaped statements. I have found authority that suggests otherwise. [1] [13] There is a general obligation on the Crown to present to the voir dire judge evidence of all the circumstances surrounding the taking of a statement so that the judge may decide whether the statement should be admitted – this includes presenting all persons in authority who have had any material dealings with the detained/accused person, and ensuring there is a sufficient record of the interaction between the suspect and the police, or providing an adequate explanation for not having done so – R. v. Brooks, (1968) 28 CCC (3d) 441 (BCCA) leave to appeal denied (1987) 86 NR 239n – a case where the accused was interrogated seven times for approximately 11 hours over a 72 hour period and some of the tape recordings thereof were lost and not available at trial [majority at paragraphs 113 – 114]; R. v. Thiffault, (1933) 60 CCC 97 (SCC);) R. v. Kacherowski, (1978) 37 CCC (2d) 257 (Alta CA) at paras. 17 – 18; R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 at paras. 64- 67 per Charron J.A., as she then was. [14] In R. v. MacDonald–Pelerine, 2014 NSCA 6, the appellant argued that the existence of significant concerns about the accuracy and reliability of her statements which were recorded in writing to an auditor investigating fraud committed during employment, made them inadmissible, and the trial judge erred in admitting them. In response, Justice Beveridge stated at paragraph 41: 41. With respect, I am not persuaded that there is any substance to the argument by the appellant. The Crown is required to prove beyond a reasonable doubt that putative statements by an accused to a person in authority were voluntary. To state the obvious: if the Crown’s evidence about the circumstances surrounding the taking of the statement is marred by a lack of accuracy as to what was said to, and by, an accused, the Crown is at substantial risk of being unable to meet its burden on the issue of voluntariness or ultimate admissibility. 42. However, if a trial judge, applying the correct legal principles, and absent palpable and overriding error, determines that he or she is satisfied beyond a reasonable doubt that putative statements by an accused were made voluntarily, then disputes about the accuracy and existence of an utterance by an accused is generally for the trier of fact in the trial proper. 43. These principles were succinctly summarized by Hill J. in R. v. Menzes; Charron J.A. in Moore-McFarlane at paras. 58-60. Code J. in R. v. Learning, 2010 ONSC 3816, after referring to these, and other authorities, wrote of the distinction between accuracy and completeness and of notes or a statement on a voir dire, as opposed to at trial as follows: 62 Accordingly, the current state of the law is that accuracy and completeness of the record of a voluntary statement is an issue of weight that is determined at trial. However, the accuracy and completeness of the record of the circumstances surrounding the making of the statement can relate to proof of voluntariness on the voir dire. This is not an easy distinction to apply, especially in a case like the one at bar where no evidence is called by the defence on the voir dire. It may be unclear in such a case whether the defence is raising issues of voluntariness or issues of accuracy. Are Mr. B.’s two videotaped statements to the police proved voluntary beyond a reasonable doubt? [15] While under arrest for alleged sexual assaults against his wife, Mr. B. provided two videotaped statements to the police: beginning at 9:04 p.m. and ending at 10:44 p.m. on November 25, 2014; and beginning at 6:48 a.m. and ending at 7:25 a.m. on November 26, 2014. [16] Mr. B. disputes the admissibility of his statements, but does not claim any violation of the Charter of Rights. He only argues that the statements are not proved beyond a reasonable doubt to be voluntarily made by him. He specifically argues the Constable MacGillivray induced him to give a statement to the police, individually or collectively as follows: 1. Fear of physical reprisal if he acted aggressively; 2. Fear of prejudice by the judge with an implicated threat of being in jail for six months if he did not give his version of events; 3. Hope of advantage by being released [on November 25 – 26, 2016] with all charges dropped if he gave his version of events; 4. Hope of a reconsideration of his jeopardy; and 5. An undermining of his lawyer directly [see page 65 of November 25, 2014 transcript] and indirectly by providing false information with respect to the judicial process and of what was to transpire the next day in court. [17] I have reviewed in court the entire contents of both the videotaped statements. I was provided with a transcript to assist me, though I will rely upon what I saw and heard in the videotaped statements. [18] Both counsel agree that the governing law regarding this issue emanates from the principles enunciated in R. v. Oickle, 2000 SCC 38. Our Court of Appeal has recently referred to these principles in R. v. Toope, 2016 NSCA 32 at para. 22 per Hamilton J.A.; and R. v. MacDonald-Pelrine, 2014 NSCA 6 at paras. 34 – 35 per Beveridge J.A. There were also extensively commented on by Justice Charron, as she then was, in R. v. Moore-McFarlane, (2001) 152 O.A.C. 120 at paras. 53 – 60. [19] In R. v. WHA, 2011 NSSC 157, I have previously summarized those general principles: 42 The seminal case regarding the common law confessions rule is R. v. Oickle 2000 SCC 38, [2000] 2 S.C.R. 3. 43 There Iacobucci, J. felt it "important to restate the rule ..." -- para. 32. He summarized the contemporary confessions rule as follows: The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession. -- para. 47. 44 He then went on to examine the following categories of concern: 1. Threats or Promises; 2. Oppression; 3. Operating Mind; 4. Other police trickery 45 The "threats or promises" category is at the core of the confessions rule and derives from the decision of the Privy Council in Ibrahim v. R. [1914] A.C. 599 where the Court stated at p. 609: It is long been established as a positive rule of English Criminal Law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. 46 Justice Iacobucci concluded: "The most important consideration in all cases is to look for a quid pro quo". He elaborated: 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. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the [page 38] confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession. [Emphasis added] 47 When "oppression" is under consideration, the concern as with threats or promises (para. 57), is that the suspect's will will be overborne to a point where the statement is not voluntary (para. 58): Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.-- para. 60. 48 Regarding "operating mind", the Court refers back to its decision in Whittle in which Sopinka, J. "explained that the operating mind requirement "does not imply a higher degree of awareness and knowledge of what the accused is saying than that he is saying it to police officers who can use it to his detriment" -- para. 63. 49 Regarding "other police trickery" the Court referred back to its Rothman decision with approval on this specific point. If the trickery might "shock the community" then chances are it will be considered involuntary -- para. 67. 50 It was the position of the Defence at the hearing that there is no material evidence of oppression, nor that A. did not have an operating mind, nor that there was police trickery. Mr. A. argues that his will was overborne by the police interviewers who created an atmosphere of trust, minimized the charge, which in the circumstances, caused Mr. A. to lose sight of his right to silence. 51 Mr. A. argues collectively these items caused his will to be overborne and rendered his statement involuntary. I keep in mind that it is the Crown who must prove beyond a reasonable doubt that his statements are "voluntary". … 55 In R. v. Oickle, Iacobucci, J. discusses a similar argument made in that case under the heading "abuse of trust". He commented: In essence, the court criticizes the police for questioning [page 52] the respondent in such a gentle, reassuring manner that they gained his trust. This does not render a confession inadmissible. To hold otherwise would send the perverse message to police that they should engage in adversarial, aggressive questioning to ensure they never gain the suspect's trust, lest an ensuing confession be excluded. 58 The officers did employ this approach. In relation to such approaches, Iacobucci, J. observed in Oickle that: Insofar as the police simply downplayed the moral culpability of the offence, their actions were [page 46] not problematic. As even the Court of Appeal recognized (at para. 126), "minimizing the moral significance of the offence is a common and usually unobjectionable feature of police interrogation". Instead, the real concern is whether the police suggested that "confession will result in the legal consequences being minimal" (para. 126). As discussed above, this is inappropriate. [20] Since Oickle, the Supreme Court has also re-iterated that: 1. In R. v. Spencer, 2007 SCC 11 (incl. at paras. 11-15): … 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 a is “sensitive to the particularities of the individual” [paragraph 42], and its application “will by necessity be contextual” [paragraph 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… Inducements “become 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” [paragraph 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 statement. 2. In R. v. Singh, 2007 SCC 48: 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. 29 Of course, the information obtained from a suspect is only useful in the elucidation of crime if it can be relied upon for its truth – hence the primary reason for the confessions rule, the concern about the reliability of confessions. … 34 As we can see from the foregoing discussion, the right to silence, as a facet of the principle against self-incrimination, was already very much part of the common law confessions rule when the Charter came into force in 1982. Any remaining uncertainty as to whether the confessions rule embraces the right to silence was clearly dispelled by this court in Hebert.… In reviewing the scope of the common-law confessions rule [McLachlin J. as she then was] explained at pages 166 – 67 that the jurisprudence of confessions revealed two persistent themes. The first related to the exercise of free will in choosing whether to speak to police or remain silent and the second to ensuring that reception of the impugned statement would not result in unfairness or bring the administration of justice into disrepute. … 36 On the question of voluntariness, as under any distinct section 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 section 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. … 40 … It is well-established that the test for determining who is a “person in authority” is not categorical; rather it is contextual. It depends largely on the reasonable perception of the accused. The test was reiterated recently in R. v. Grandinetti [2005] 1 SCR 27 , 2005 SCC 5: ‘the operative question is whether the accused, based on his or her [reasonable] perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment’ [paragraph 38]. This approach is rooted in the rule’s traditional concern about the reliability of confessions, the rationale being that there is a greater risk that an accused may be influenced to give a false confession to a person perceived to have the authority to influence the course of the investigation or the proceedings. … 47 Mr. Singh takes particular issue with a leeway afforded to the police and questioning the detainee, even after he is retained counsel and has asserted his choice to remain silent. He submits the courts have erroneously interpreted the underline passage above [from Hebert that “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”] as permitting the police to ignore a detainee’s expressed wish to remain silent and to use “legitimate means of persuasion”. I say two things in response to this argument. First, the use of legitimate means of persuasion is indeed permitted under the present rule – it was expressly endorsed by this court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, 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 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. … 53 … The ultimate question is whether the accused exercised free will by choosing to make a statement; Otis at paras. 50 and 54.” [21] I bear in mind that, if it should occur that, at some identifiable point in time during the taking of the two statements, a determinative cessation of what had previously been to that point a voluntarily provided statement is identified, such “improper inducement does not have the retroactive effect of vitiating what may have transpired beforehand - see R. v. Jack (1992) 76 Man. R. (2d) 168 (Man.CA.)” per Beveridge J.A. at para. 20 in R. v. Thomas, 2015 NSCA 112. [22] Moreover, I observe that there is a significant disagreement between the British Columbia and Ontario courts of appeal, regarding whether an accused’s statement put to him/her in cross-examination is admissible for the truth of its contents without adoption by the accused, or if its use is limited to impeaching the accused’s credibility: R. v. Groves, 2013 BCCA 446 at para. 41; R. v. McKerness, 2007 ONCA 452 at para. 37. [23] In spite of the latter reference, the applicable law is generally not in dispute. It is the application of that law to the facts that is in dispute herein. Why the statements herein are proved to be voluntarily made beyond a reasonable doubt [24] Firstly, I will make some general findings of fact before I examine the specific points raised by the Defence herein. [25] I had the benefit of the evidence of Constable Susan Camus, Constable Matthew MacGillivray, and Mr. B. [26] Just before the lunch break, I instructed Constable MacGillivray that since he was still testifying, he should not discuss his evidence with any other persons including counsel. On cross examination, he candidly admitted that he had during the lunch interval reviewed a copy of his notes to refresh his memory without the express permission of the court, and reviewed other contents of his investigative file (i.e. Versadex reports; the information to obtain and the warrant issued for DNA samples; and the report of the sexual assault nurse examiners in the case). With the exception of referring to his notes, he did not understand this to be in violation of my instruction to him. I accept his explanation that he did not consider a review of his file to be in violation of my instructions. I also accept that, at the time, he did not appreciate that he should have requested the permission of the court to refer to his notes during the lunch break. These actions could affect the weight I should give to his testimony. However, the videotaped statements speak for themselves, and his residual testimony was generally uncontroversial. I conclude that his review of those materials should not affect the weight that I would give to his testimony, which otherwise was credible in all respects. [27] R.C.M.P. Constable Camus, accompanied by Constable Daniel Howie, attended at Mr. B.’s home and arrested him at approximately 8:00 p.m. on November 25, 2014. She advised him that he was under arrest for sexual assault in relation to his wife. He was read a standard Charter of Rights caution which he understood, and then was read the standard “right to silence” warning. He was placed in handcuffs and into the police car. The officers drove to downtown Halifax where they arrived at approximately 8:35 p.m. He was turned over to Halifax Regional Police shortly thereafter. Constable Howie had no material dealings with Mr. B. Mr. B. was turned over to Constable Matthew MacGillivray and his partner Constable Mews. Constable Mews had no material dealings with Mr. B. [28] Mr. B. was permitted the opportunity to, and did, contact and speak to counsel between 8:56 p.m. and 9:04 p.m. I find that to this point in time, there were no threats, promises or other form of inducements made to Mr. B. which could have affected the voluntariness of the statements he provided. [29] The first videotaped statement started at 9:04 p.m. and ended at 10:44 p.m. November 25, 2014. Thereafter, Mr. B. was returned to cells. He was retrieved from cells some time shortly prior to the beginning of the recording second statement at 6:37 a.m. on November 26, 2014. Neither the testimony of Constable MacGillivray nor that of Mr. B. suggest that there were any threats, promises or other form of inducements made to Mr. B. during that overnight interval which could have affected the voluntariness of the statements that he provided. [30] Constable MacGillivray entered the interview room at 6:48 a.m. He gave Mr. B. of bottle of water and a power bar and then stated: … The same thing as last night, Mike. The recording is still going, I’m a police officer, all the same rights and rules apply from – from last night still carry over to now. There is no difference. You’re still – you’re still with us.… And just like we said to you last night, there’s nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence. We tell you that because we don’t want you to feel influenced. I don’t want you to feel like I’m forcing you to talk. [31] Mr. B.’s arguments that his statements were not voluntary, are rooted in the exchanges shown in the videotaped statements. A careful examination of those statements is therefore required. [32] 1 – Fear of physical reprisal if he acted aggressively – page 4 line 10 first interview. [33] The words spoken while Constable MacGillivray was searching Mr. B., could not be seen as a threat by any measure. They are merely the articulation by the officer of the search protocol he was following. [34] 2 – the threat of prejudice that if he did not give his version of events he could be in jail for six months [pending trial]; hope of advantage by being released with all charges dropped if he gave his version of events; and undermining of his lawyer directly [page 65 first interview] as well as providing misleading information regarding the bail process – e.g. at: page 15 line 19 – page 17 line 19; page 20 line 11 – 22; page 21 line 1 – page 24 line 16; page 47 line 17 – page 49 line 19; page 53 line 19 – page 55 line 7; page 63 line 12 – page 67 line 10. [35] Constable MacGillivray had reiterated to him that “arrest does not equal charge, okay?” – Page 47 line 17 first interview. Constable MacGillivray’s words that [if Mr. B. does not provide a statement that “points me in a different direction” then the officer will still have reasonable and probable grounds to believe an offence has been committed] “it comes out with your lawyer six months down the road when you get a court date and then beyond that”, is not objectively an inducement that would have caused Mr. B. to give a statement. There is no quid pro quo. The officer is merely telling him that unless he has other evidence, such as a statement from Mr. B., that points him in the direction of not laying a charge against Mr. B., he will have to lay a charge against Mr. B. and the matter be decided in court, which court [trial] date could be six months hence [see also for example pages 47 line 11 – page 48 line 21; page 52, line 18; page 80, line 21]. [36] As Constable MacGillivray stated to Mr. B. at page 58, line 18: … If you’re looking for a guarantee from me to say whatever comes out of your mouth, I’m going to buy it wholesale, you’re not going to get it. [37] [Mr. B. answered] I know”… So either way it’s going to go to court tomorrow…” [see also for example pages 21, line 1 – page 22, line 18; 82 line 4]. [38] Similarly in the second statement Mr. B. remains consistent about his realization of the inevitability that he is going to court tomorrow, even after he’s given a statement to Constable MacGillivray: page 36, line 16 – page 40, line 4. [39] The evidence confirms that Mr. B. understood, even if he gave what appeared to be a credible statement to Constable MacGillivray, that would not necessarily prevent him from being charged with sexually assaulting his wife. [40] Notably we also have the testimony of Mr. B. He was asked directly why did he provide the second statement? [41] He answered that while he was in cells overnight he felt very humiliated and was awake all night. He said that he understood from the first interview that he had three basic options: say nothing and stay in jail; say something untruthful and he stays in jail; tell the truth and he gets released from custody [and implicitly I infer that he meant he would not be charged with any offences arising out of the events of November 13 and 25, 2014]. [42] In cross-examination he admitted that, “I was hoping”, and he knew, “yes – it was a possibility” that he could be released the next day even if he had not given any statement to the officer – see for example Constable MacGillivray’s comment that even if he gave no statement, he would be going to court “and have a judge decide that, and you know, maybe I should – maybe I should either stay in jail or go home with – with conditions” – page 66, line 13. [43] In cross-examination, Mr. B. did not agree with the suggestion that, during the first interview, he realized that even if he provided a credible statement to Constable MacGillivray that he would not necessarily be released (ie. that no charges would ultimately be laid). [44] Mr. B. reiterated in re-direct examination that he believed “if I tell the truth I would be leaving [police custody]” and would not be charged. He believed this on the basis of the “options” that Constable MacGillivray repeatedly provided him to assist in his decision-making about whether to provide a statement to the officer. [45] Those options were put to him repeatedly, but basically a fair reading of them throughout the first interview can be summarized as follows [for example page 64]: i- you don’t say anything, you stay in custody ii-you tell me you did it, you stay in custody iii-you lie to me, you stay in custody iv-you tell me you didn’t do it and it’s the truth, you go home [46] On its face, some confusion could arise regarding the meaning of option no. iv. That option presumes that the “truth” can be definitively and expeditiously determined by Constable MacGillivray. Arguably, Mr. B. may have interpreted that as: if I make what Constable MacGillivray accepts as a credible statement, then that will satisfy his requirement for “the truth”, and therefore I can go home – no criminal charges laid. [47] However, a careful examination of the exchanges between Constable MacGillivray and Mr. B. make it clear that, to a reasonable observer, even a “credible” statement from Mr. B. would not necessarily have caused Mr. B’s release from custody. [48] Constable MacGillivray explicitly told Mr. B. repeatedly what his wife’s complaints were regarding the sexual activity of November 13 and 25, 2014 – eg. page 9 –14 first interview . Thus Mr. B. had a clear factual matrix against which to measure his own response. He knew that it was a “he said – she said” case, but that there was also physical evidence supportive of his wife’s allegations. [49] In that context, Constable MacGillivray said to him: a) “If you tell me the truth and you tell me a version of the truth that is believable, reliable, credible and leads me to believe another – an alternative version of what happened took place, yes, it changes your situation.” – p. 21 b)… Here’s your options. Option number one: sit there you say nothing. And I’m going to guarantee you, I will guarantee you, you’re sitting in a cell until tomorrow morning when you go to court… Option number one, you say nothing, I only have to go on her evidence. I’m going to be holding you for court till tomorrow morning. Option number two, you come in here,…you sell me a line of bullshit… You’re standing before the court in the morning. Option number three, is you tell me the truth… and the truth is, reliable credible, believable and it causes me to consider that evidence… These are your options A, B, C. You choose the door my friend.” – p. 23; “… The only way I can determine if someone is truly selling me a bill of bullshit is the evidence to go with it” – p. 24 c) “But Mike right now all I got to go on is what she has to say. I think it’s important that you have your chance to say what happened to lay it on the line and tell me the truth. Because right now all I have is her truth. Whether you think it’s a version of the truth or not, that’s what I’ve got and that’s what I’ve got to go on.” – P. 33 d) “Mike, I’ve never had an innocent person tell me the truth and have it go bad for them… I’ve never had an innocent person tell me the truth and then be charged.” – e) “I believe that you’ve got a version of events that I need to hear. And I understand it’s tough, I get that. I mean, but, Mike, the truth will set you free man.… The truth will set you free” – p. 38 f)” Hopefully you give me your version of events. Then I have to weigh your version of events to determine whether it is credible, reliable, believable. And then I have to review all the evidence, her statement, and your statement, what the nurses say and that’s it. And then I decide whether or not this goes to the court section, whether this goes to the crown attorney who decides yes, we’re going to lay a charge against Mike.” – P. 48 g) “What you tell me, if it’s the truth and it’s a different version of what happened, I am compelled to consider it. And if it causes me to doubt the veracity of what she told me, if it calls into question the credibility or reliability and believability of what she says, I am compelled, I am compelled to consider that.” –p.54 h)” If you’re looking for a guarantee from me to say whatever comes out of your mouth, I’m going to buy at wholesale, you’re not going to get it… if you want to know whether I’m going to listen to what you have to say and if I believe it’s the truth, I’m going to act on that truth then, yes know that.” – pp 58-9 i) “If you didn’t do it, you’re going home.… I don’t have any right to keep you. If you didn’t do it, I don’t have any right to keep you.” –p. 63 j) “you lie to me, you stay. You tell me you did it, yeah, you’re going to stay and I think you would understand why. You tell me you didn’t do it and it’s the truth, you go home… I can’t put it any clearer than that. And I hope that that message is getting through to you Mike.… You lie, you stay. You did it, you stay. You didn’t, you go home. And there’s one more. You don’t say anything, you stay. That’s just the way it is. You lie, you stay. You did it, you stay. You say nothing, you stay. You tell the truth and you didn’t do it, you go home.” – p.64 k) at p. 68 of the first interview Mr. B. begins to give very general responses to Constable MacGillivray’s questions – eg. “She thinks I did [sexually assault her], but I didn’t “ l) “So all we got to discuss now is was it exactly as she said it happened or was it different… And you’re sitting there conflicted about whether or not to tell me. What I can tell you is that I know 95% of what took place that day. It’s the 5% that’s got you in here right now. And if you don’t want to tell me 5% of what took place to set yourself free, then that’s your choice. 5%. 5%. That’s what’s keeping you here 5%. And I know it’s not what you want to do. What you want to do is tell me that this is bullshit and that this is actually what took place on both those nights, here’s how things rolled out, here’s how you experienced it.” – p. 79 m) “I keep telling you… You’re not going to go to court “either way”. If you tell the truth and the truth is that you didn’t commit a criminal offence, you go home. It’s as simple as that man. There is no game to it, there is no trick. If you didn’t do it and you tell me the truth, and I’m good at determining the truth, if you tell me the truth that you didn’t do it, you go home. You lie to me or you tell me you did it, you stay. You don’t tell me anything you stay. Hey, it is what it is. Do you want another bottle of water?… Because if you’re not going to talk and you’re going to stay you might want another bottle of water, because you going to be here all night. So I’m going to go down and get you a bottle of water whether you or not you want it. You can leave it here or what not. I’m going to give you a couple of minutes to think and I want you to think Mike… I’ve been willing since I heard your name to hear your side of the story and I’ll be willing till you – until I basically put you in a cell or a set you free at the back door, that I want to hear your story and I’m not making that up.” – pp 82-3 n) [8 minutes later Constable MacGillivray returns] “tell me what happened to Mike. Mike, tell me what happened. Please, I’m asking you to tell me what happened. Give me something else to work with here. [Mr. B.] it was consensual, that’s it.”- p. 84 [50] It is important not to lose sight of the fact that after being informed of the specific details of the allegation against him, Mr. B. made only very general and limited comments about the allegations within the first statement: i- “Q: did you sexually assault Lisa? A. No I didn’t… She thinks I did but I didn’t” -p 69 ii-“Q: tell me what happened Mike… A. it was consensual, that’s it.”-p. 84 [51] Mr. B. had a break from questioning between 10:44 p.m. November 25 and 6:48 a.m. November 26, 2014. He appeared fresher and more relaxed during the second interview. He joked at the beginning “Time flies when you’re having fun doesn’t it?”- p. 3 second interview. [52] Constable MacGillivray reminds him of the right to silence caution [p. 6] and immediately in response Mr. B. says: “Well, I’ll tell you exactly what happened. That’s all I’m going to do.” [53] When asked to say what happened on November 13, 2014, Mr. B. provided a virtually uninterrupted recitation: You know, to tell you the truth, I didn’t even know what you guys were talking about when you said there’s two incidents. Because the one is so – so routine, I didn’t even know what the fuck you were talking about. When you said two incidents, I was like – I didn’t – I had no idea what you were talking about. It’s just the more you talked, oh okay, now I know what you mean, but I… There was nothing out of the ordinary that night. – p.7 [54] Mr. B. went on in some detail, and in summary agreed with much of what his wife had apparently told the police, except for the alleged aggression-related incidents to which she referred in her statement. [55] In relation to the early morning of November 25, 2014, in a departure from her allegation that he unilaterally became uncharacteristically aggressive, Mr. B. claimed that his wife said to him: “I’m going for a shower. Is there any chance of having rough, dirty sex tonight, some biting, some anal?” – p. 21 [56] The remainder of his second statement may also be characterized as exculpatory. Mr. B. claims therein that their sexual activity on November 13 and 25, 2014, was not materially different from their consensual activity in the past. [57] Notably, Constable MacGillivray is a very passive conversationalist throughout the second statement once Mr. B. begins to give the substance of his statement. [58] In summary, Mr. B. only went so far in his first statement as to state that the sexual activities of November 13 and 25, 2014, were “consensual”; whereas the next morning, having had time to reflect, Mr. B. almost immediately launched into giving his version of events. [59] Before doing so, he did not make any further inquiry of Constable MacGillivray about speaking to a lawyer again, or whether his doing so would ensure that charges would not proceed against him and he would be released. Moreover as can be seen in the videotape, after he finishes “my side of the story”, Constable MacGillivray says: Q: And that’s what I’ve been waiting for for almost 17 hours my friend. A: well, I’m sorry but, yeah, you listen to the other guys and I’m not supposed to talk. I don’t – well, I want to talk. Q: I told you – I told you last night and I’ll tell you again. You lie to me you stay. You tell me you did it, sexually assaulted your wife, you stay. You don’t tell me anything, you’ve got to stay because I have no other evidence. You tell me the truth and that you didn’t do it, then I have no choice but to consider that evidence and, if it means you go free, you go free. It means I have to do some more digging. It means I have to do more. A: okay [Mr. B. affirmatively nods his head] [Constable McGillivray leaves and returns approximately 10 minutes later to state] Q: so I believe what you told me is credible. I believe the version of what you’re telling me is a credible version. A: thank you Q:… I needed to hear your version of the truth, okay, all right? A: [Mr. B. affirmatively nods his head] Q: so this is what this compels me to do. I’m going to have to re-interview Lisa, and I’m going to do that right now. In the meantime I’ve got to put you in a cell okay? A: [Mr. B. affirmatively nods his head] Q: I can’t let you go yet. A: I know Q: … I have until 8 PM this evening to release you… A: [Mr. B. affirmatively nods his head] Q: I feel compelled now to talk Lisa and compare the two versions of events. A: [Mr. B. affirmatively nods his head and states “okay”]… Q: once I’m done that, I’m going to review all the evidence to determine whether or not we’ll be letting you go or whether we send you to court in the afternoon. A: [Mr. B. affirmatively nods his head twice]… Q: is there anything else you want to say? A: I don’t think so.” [p. 36 - 39 transcript] [60] Had Mr. B. believed that by merely giving a credible alternative version to Constable MacGillivray, the charges against him would be dropped and he would be immediately released from custody, would he not have protested about Constable MacGillivray continuing to detain him to allow a re-interview of his wife? [61] Although in his testimony Mr. B. stated that he believed if he told the truth, and gave a version of events that Constable MacGillivray considered credible, he would be released (and not charged), the test is an objective one: Would a reasonable observer be satisfied beyond a reasonable doubt that Mr. B.’s statements to the police were made “voluntarily”? [62] Overall, on an objective analysis of all the circumstances, there was no quid pro quo here that overbore Mr. B.’s will. Mr. B. made a calculated decision to present his version of events in the second statement. He had been told that there was no guarantee that he would be released/not charged, but concluded it was in his interest to give his version of events. [63] In conclusion, I am satisfied beyond a reasonable doubt that Mr. B. did not make his statements in response to any identified inducements, individually or collectively, nor that there were any threats, or any undermining of the legal advice he had received from his lawyer. [64] I find his two statements to be proved voluntarily made beyond a reasonable doubt. B. Section 276 - Criminal Code Introduction [65] On April 13, 2016, Mr. B. filed an application pursuant to Section 276.1 Criminal Code requesting a hearing under Section 276.2 to determine whether evidence is admissible under Subsection 276(2). I earlier imposed a ban on publication pursuant to SA276.3 Criminal Code [66] Mr. B. is charged with sexually assaulting his wife on November 13 and November 24, 2014. He is arguing that the shared past sexual history between he and his wife is relevant, not in relation to whether his wife consented, but rather to whether he had an honest and mistaken belief that she was consenting on the dates in question. [67] He wishes to be able to cross-examine the complainant with respect to: The complainant’s prior sexual habits and history with the defendant when they cohabited as a married couple including, but not limited to, the type of sexual activity they engaged in; how often that activity occurred; how the activity was initiated; by whom it was initiated, and such other details that are required to meet the ends of justice. Factual background [68] He relies upon the complainant’s testimony at the preliminary inquiry, [2] and , in the transcript at: Page 10 line 7 – 8: there is reference to sexual interaction between the complainant and defendant after the marriage counselling, and before the alleged first incident, described as “normal sex” Page 14 line 4 – 6: “we’ve had anal sex before. There has been lube, there has been foreplay, there has been time. There was none of that.” Page 15 line 13 – 15: the complainant references past “episode of anal sex” Page 29 line 10 – 11: past history involving oral sex Page 35 line 12 – 14: describes frequency of sex and adventurous attitude about sex Page 36 line 11 – 12: admits to slapping during regular sex and anal sex was regular Page 39 line 7 –8: admits the couple had no “safe word” during sex Page 44 line 3 –5: admits not always talking about what is going to occur in the bedroom Page 44 line 9 – 20: admits to using sex toys in past with double insertion Page 50 line 13: admits to having oral sex in a “69 position” before. [69] No further evidence was presented at the voir dire. Position of the defence [70] At trial Mr. B. will argue that the complainant consented to the sexual activities in question (or at least a reasonable doubt about her consent). Alternatively, he will argue that he had an honest, but mistaken, belief that his wife had consented. [71] He wishes to be able to confront the complainant with her evidence of their past sexual activity, to support his position that he had an honest, but mistaken, belief that she was consenting to the sexual activity on November 13 and 24, 2014. [72] Provided that the proper procedure has been followed, and the court is satisfied that the preconditions in Section 276 are met, the Crown has no present objections. Analysis the underlying evidence [73] The allegations of the complainant may generally be said to be: Re Nov. 13 2014-there was mutually consented to sexual activity briefly in the shower, but once they moved to their bed, Mr. B. became uncharacteristically aggressive –eg even when she showed her displeasure verbally and physically, he persisted in his aggression which included: squeezing and biting her breasts and nipples; forcing his penis into her mouth while telling her to “gag on it, choke on it”; without lubricant aggressively jamming his fingers and his penis into her anus; he was forcing her legs apart; Re Nov. 25 2014 – [this was the next occasion that they had shared sexual activity (which they normally would have had 3 to 4 times a week) and they did not discuss the November 13 incident at any time before hand – they had returned from a Bob Seger concert near midnight November 24 – 25] she was laying on the bed when he, shortly after entering their bed, began fondling her vagina, to which she stated “Whoa.. What the hell do you think you’re doing?” And he responded “I’m going to show you my night moves”; and shortly thereafter began ramming numerous of his fingers into her vagina; pinning her arms down with his legs and thrusting his penis into her mouth, which left her with bruises on her thigh, bruising above her breasts and below her shoulders – her nipple was purplish red on her left breast – and her entire vagina area was irritated sore and abrasioned/it hurt to urinate. [74] In summary, the complainant’s position is that not that the kinds of sexual activity on November 13 and 25, 2014, were out of the ordinary based on their past sexual activities, but rather that Mr. B.’s behaviour was unusual because he was hurting her and unilaterally dominating her physically , both of which had never happened before. Moreover, she physically attempted to rebuff and resist his uncharacteristic aggression- filled sexual activity. The applicable legislation and court decisions [75] Section 276(2) Criminal Code requires that the court be satisfied that any prior sexual activity between the complainant and Mr. B. must be: a) of specific instances of sexual activity b) relevant to an issue at trial; and c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice [76] And, that I take into account the following factors: a) the interests of justice, including the right of the accused to make a full answer and defence; b) society’s interest in encouraging the reporting of sexual assault offences; c) whether there is a reasonable prospect that the evidence will assist in arriving at a just a determination in the case; d) the need to remove from the fact-finding process any discriminatory belief or bias; e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; f) the potential prejudice to the complainant’s personal dignity and right of privacy; g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and h) any other factor that the judge, provincial court judge or justice considers relevant. [77] Particularly relevant are the Supreme Court’s statements in R. v. Ewanchuk [1999] 1 SCR 330 and R. v. JA [2011] 2 SCR 440. Also relevant are Section 273.1 which contains a definition of “consent” specific to sexual assault offences, and Section 273.2 which sets out circumstances where belief that consent has been given is not a defence. Voluntary agreement to “the sexual activity in question” in section 273.1 was recently discussed in R. v. Hutchinson [2014] 1 SCR 346. [78] Generally speaking, the Crown must establish beyond a reasonable doubt that Mr. B., intentionally applied force to his wife in circumstances of a sexual nature, and that his wife did not “consent” [or the consent was vitiated] to the force applied [”the voluntary agreement of the complainant to engage in the sexual activity in question”], and that he knew [actual knowledge, recklessness or wilful blindness] that his wife did not consent to the force that he applied. Even if the Crown succeeds in establishing these essential elements of a sexual assault offence having been committed, if Mr. B. establishes that there is an air of reality [ R v Cinous [2002] 2 SCR 3 and Section 265(4) Criminal Code ]to his claim of honest but mistaken belief in his wife’s consent, then the Crown must establish beyond a reasonable doubt that the defence is inapplicable in the circumstances of this case. Application of the law to the facts- should Mr. B.’s counsel be entitled to cross-examine the complainant regarding their past sexual practices? [79] Mr. B. restricts his Section 276 application to his suggested defence of honest but mistaken belief and consent [s. 265(4)]. His belief must relate to the “sexual activity in question”. [80] The statutory interpretation of the words “voluntary agreement… to… the sexual activity in question” were restricted by the Supreme Court in Hutchinson to a complainant’s subjective agreement “to the partner’s touching and its sexual nature.” More specifically, “we conclude that Farrar J.A. was correct to interpret the “sexual activity in question” in Section 273.1(1) to refer simply to the physical sex act itself (for example, kissing, petting, oral sex, intercourse, or the use of sex toys). The complainant must agree to the specific physical sex act. For example, as our colleagues correctly note, agreement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching.”[para. 54] [81] Section 273.2 reads: It is not a defence to a charge under Section 271… that the accused believed that the complainant consented to the activity that forms the subject matter of the charge, where a) The accused’s belief arose from the accused’s i) self-induced intoxication, or ii) recklessness or wilful blindness; or b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. [82] As Justice Moldaver (as he then was) stated for the court in R. v. Harris (1997) 102 OAC 374 at paras. 33 – 34 [3]: There is nothing in that provision [ s 276(2)] which would suggest that a single prior incident of consensual sexual activity can never be relevant to the issue of honest but mistaken belief and consent or that the prejudicial effect of such evidence will inevitably outweigh its probative value. Rather, where evidence of prior consensual sexual activity between the parties is being proffered to support the defence of honest but mistaken belief and consent, it must be tested on a case-by-case basis having regard to all of the circumstances including, but not limited to: - the viability of the defence itself - the nature and extent of the prior sexual activity as compared to the sexual activity forming the subject matter of the charge[4] -the timeframe separating the incidents; and -the nature of the relationship between the parties. [83] I acknowledge Moldaver J.A. also urged trial judges that: Given the vagaries that all too often exist when trial judges are asked to make “advance” evidentiary rulings, it seems to me that is a matter of prudence, apart from perhaps straight stating a tentative view, trial judges should resist making final rulings until such time as they required to do so. Experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendency to either disappear or get resolved. Those that remain outstanding or likely to be brought in a much sharper focus is the evidence unfolds. To be certain, where the proposed evidence is likely to have a significant impact on the outcome of the trial , an ounce of prevention is worth a pound of cure and trial judges would be well advised to refrain from making conclusory rulings until such time as they are required to do so [para. 38]. [84] Nevertheless, this case as presented is well suited to an advance ruling. [85] Pursuant to Section 276.2, I find that in the unusual circumstances of this case, involving a cohabiting couple who had an established pattern of sexual activity, I am satisfied that the proposed evidence is sufficiently identifiable to be said to be “of specific instances of sexual activity”, and that it is relevant to the issue of honest but mistaken belief in consent, and that its probative value is significant and not substantially outweighed by the danger of prejudice to the proper administration of justice, taking into account the factors in Section 276(3). [86] I find that admission of the evidence is important to ensuring Mr. B.’s right to make full answer and defence, and there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; on the other hand I am satisfied that: given that the hearing is a closed hearing pursuant to Section 276.2 and there is a publication ban pursuant to Section 276.3, and that the nature of the additional evidence of the past sexual history of the parties will not be so different from what would be heard in an open court during the trial; the objective of encouraging the reporting of sexual assault offences will not be thereby jeopardized, nor would it be any significant further invasion of the complainant’s personal dignity and right of privacy. Conclusion [87] I will therefore permit the complainant to be cross-examined in relation to the precise items described above, as contained in the May 6, 2016, letter of Defence counsel. The exercise of such cross-examination should nevertheless strive to maintain the greatest level of respect for, and preservation of, the complainant’s personal dignity and privacy, as is consistent with the responsibilities and obligations of Defence counsel. Rosinski, J. [1] R. v. Stringer (1992) 69 CCC (3d) 535 (NLCA) leave to appeal denied (1992) 71 CCC (3d) vii [the majority: ”there is no law that precludes this and, in some cases, it is necessary to read the statement before making such a ruling.”; the dissent: “… While a trial judge on the voir dire has the legal right to read or review a statement with respect to which a voir dire is being held, he should not do so, except in the circumstances set out above [i.e. that a review or reading of the statement would be helpful to the trial judge in clarifying or amplifying the circumstances surrounding the taking of the statement]; [2] At the preliminary inquiry the Crown (not the trial Crown) knowingly did not object to Mr. B.’s wife being asked about their shared past sexual history. That was entirely improper, and circumvented the process and protections contained in ss 276-273.6 Criminal Code – see also the Court’s comments in R. v. Darrach [2000] 2 S.C.R. 443; R. v. Boone, 2016 ONCA 227, paras. 37 – 46; R v. Levin, 2014 ABCA 142, paras. 60-65. [3] as approved in R. v. Beilhartz, 2014 ONCA 760 and R. v. Power, 178 NSR (2d) 339 (CA) at para. 5 [4] See for example R. v. DEW 2009 NSSC 112 per Robertson J.