R. v. Hoilett

R. v. Hoilett Collection Decisions of the Court of Appeal Date 1999-06-23 Docket numbers C29727 Judges Carthy, James Joseph; Labrosse, Jean-Marc; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19990623 DOCKET: C29727 COURT OF APPEAL FOR ONTARIO CARTHY, LABROSSE AND FELDMAN JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Appellant: In Person ) Duty Counsel: Alison Wheeler (Respondent) ) ) and ) ) COURTNEY HOILETT ) K. Campbell ) for the respondent (Appellant) ) ) Heard: April 27, 1999 ) On appeal from conviction by Hryn J. dated April 2, 1998 and sentence April 21, 1998. FELDMAN J.A.: [1] The appellant appeals his conviction of one count of sexual assault and his sentence of 38 months reflecting credit for 10 months pretrial custody. The appellant was assisted by duty counsel in respect of the appeal against conviction. Four grounds of appeal were raised: 1) The appellant’s statement to police should not have been admitted as the Crown failed to prove that it was made voluntarily. 2) The appellant’s statement should have been excluded as it was obtained in a manner which breached his Charter rights. 3) The trial judge placed undue weight on the statement. 4) Certain evidence elicited first by the Crown, then in cross-examination by the defence, without the required Seaboyer hearing, was ultimately ignored by the trial judge to the prejudice of the appellant. THE VOLUNTARINESS OF THE CONFESSION [2] The appellant was arrested in Allen Gardens at 11:25 p.m. on November 28, 1997 by 7 police officers. He was taken to the station and placed in a cell. Two officers testified that at the time of his arrest, he was drinking an alcoholic beverage from a bottle in a bag. Some officers who saw him on arrest or when he was paraded at the station said he appeared to be under the influence of crack cocaine but not alcohol, others said he appeared to be under the influence of alcohol, while others said he did not appear at all impaired. [3] At 1:24 a.m. on November 29, four officers came to the cell to remove his clothing, as it had been determined that the clothing would be tested for possible evidence of the commission of an offence. There was some evidence that Mr. Hoilett was asleep at the time. All of his clothing was taken including his underwear, shoes and socks. He was left naked in the cell, which contained a metal bunk, a stainless steel toilet bowl and a water fountain. There were neither sheets nor blankets. Other clothes were supposed to be provided for the appellant when his were seized, but in this case, apparently due to a delay in obtaining clothes from the Salvation Army, the appellant was left naked in the cell with no covering for one and one half hours. Shortly before 3:06 a.m., he was given some light clothes, but no underwear and shoes that did not fit. [4] Officer Moyer was present at the arrest and was also one of the officers who removed the appellant’s clothes at 1:24 a.m., and who brought him from his cell at 3:06 a.m. to be interviewed. He testified that the appellant appeared to be under the influence of both cocaine and alcohol at the time of his arrest and that after he was awakened in his cell at 3:06 and taken up for his statement, he appeared to be more affected by whatever he was on and more agitated. [5] Detective Ralph and Detective Constable Clements were the two officers who took the appellant’s statement. Detective Ralph testified on the voir dire that he woke the appellant in his cell at about 3:00 a.m. and at that time he seemed tired. He was wearing tan slacks and a white shirt. Detective Ralph was aware that the appellant had consumed wine earlier that evening and crack cocaine, but said that he believed the appellant was not impaired during the interview but only tired, which was why he kept nodding off during the interview. Although the appellant was detained and under arrest, Detective Ralph testified that the reason he proceeded with the interview at that hour, after waking the appellant and knowing he was tired, was because he was not sure that he would have another opportunity to do so. [6] On the voir dire, the appellant testified that he had had three bottles of wine that evening and had smoked more than two grams of crack. He described how he was placed in the end cell, as the officers had stated, that it was cold and that the officers had deliberately opened a window. This was denied by the officers who said there was no window nearby. When he was arrested that night, he was wearing a three-quarter length leather jacket, pants, a t-shirt, a shirt and running shoes. He also had underwear and socks. When the officers came and asked for his clothes he first thought they were joking and he refused. They came in and took his clothes and he was left naked with no blanket. He said he was still under the influence of drugs and alcohol at that time. When they left him, he kept banging and asking for clothes, as he could not see any officers from his cell. He believed he was left for about two hours without clothes. When clothes were finally brought, there was no underwear and the shoes were too small. He was cold, his nose was running and he was not given any tissues. He felt he was treated like an animal. He said that by the time the statement was taken he was exhausted because he had had to stand up the whole time until he received clothes, as it was too cold to sit on the steel bed. He said that by that time he was still under the influence, but mostly he was exhausted. [7] In cross-examination the appellant agreed that he knew from his previous arrest experience that he did not have to speak with the police. He also said he had nothing to hide. He agreed that there were no promises nor threats. He then said the following: Q. And whether you were left naked in the cell for 15 minutes or two hours, that didn’t play a role in you deciding to talk to the police, correct? A. In a way it did, yeah. I thought maybe talking to them or whatever I would get some clothes. That was a part of it. Some warm clothes. Q. And you already had clothes at the time you were taken to --- A. Yeah, but they weren’t warm enough. And another thing, at least I will get some kleenex to wipe my nose, so I thought about that too. Q. And --- A. If I cooperate with them they will at least give me some kleenex to wipe my nose. Q. But, Sir, I thought you told me that you answered the questions because you had nothing to hide? A. That was one of the reasons, yes. Q. And, in fact, when Mr. Lyon asked you how you felt once you got the clothes, you told him you felt better? A. I felt a little better, yeah. Something --- yeah, I wasn’t running around nude, so I had to feel better. Q. And I’m going to suggest to you, Sir, that you weren’t really too concerned what these detectives thought of you because you don’t have a whole lot of respect for them, did you? A. Why shouldn’t I have respect for them? They never disrespect me. Q. Well, I’m going to suggest to you, Sir, that you did exactly what Detective Constable Clements said, you sat there and you sicked your teeth at them, isn’t that right? A. Sucked – she said, that was her allegation. Q. And you deny that? A. I don’t really remember. Q. Well, you’d agree with me that that is a sign of disrespect? A. No, that’s not – yeah, it would be a sign of disrespect. But, as she said, she didn’t write it down in her note. Maybe it’s just an allegation she had. Q. Actually, Sir, she said she did write it down in her notebook and it happened enough that she made a note of it. Do you disagree with the fact that it happened? A. I wouldn’t really disagree. Maybe when I kiss my teeth it was an act in asking for a kleenex and not getting any and they keep putting the questions to me and my nose is running. Q. But you would agree with me that kissing your teeth would be a sign of disrespect to the officers? A. I wouldn’t say that. Maybe it’s just to say that my nose is running and I’m asking for some kleenex and people won’t even do that for me. Q. And you’d agree with me that hanging your head and not looking at a person, that’s a sign of disrespect? A. No, I wouldn’t say that. I’d say it’s a sign of tiredness. (pp. 35-37) [8] On the voir dire the trial judge listened to an audio tape of the appellant’s statement. The interview lasted 30 minutes. Near the beginning of the interview the appellant asked for a tissue. Detective Ralph responded: RALPH: We’ll do our best to accommodate you. I don’t have any at the moment, but I will make sure that it’s brought to the Staff Sergeant’s attention. Okay? Mr. HOILETT we want try to talk to you about what happened tonight, if you’re willing to do that, it’s entirely up to yourself. Of course you know, as I’m sure you do know, that you have the right to speak to legal counsel before you talk to us, if you so choose but ah, we’d like to ask you some questions about what happened tonight. Are you prepared to do that? HOILETT: …(inaudible). RALPH: Sorry? HOILETT: I’m prepared to what I’m cold man. [9] A few minutes later in response to a question from Detective Constable Clements, the appellant said: HOILETT: I heard what you said…(inaudible) no warm clothes…(inaudible). CLEMENTS: We don’t have that right now Courtney, but we will do what we can to get that for you. We’ll mention it to the—the Officer in Charge of the Station and have him attempt to get something. Okay? But right now we want to give you your opportunity to tell us your side of the story, if you want to do that. There’s always two sides to a story and we’re prepared to listen to both sides. Do you want to do that Courtney? [10] It is also clear from the transcript that the officers noted five times that the appellant was having trouble staying awake during the interview. THE ISSUE [11] The only issue raised on appeal was that “the taking of the statement had an aura of oppression”. [12] In his ruling, the trial judge first addressed whether the appellant was under the influence of drugs or alcohol by the time of the interview. He concluded, based on all the evidence including the evidence of the accused himself, that by the time he gave the statement, his operating mind was not so affected. He made no reference however, to the undisputed evidence that the accused was very tired throughout the interview. [13] The trial judge then dealt with the issue of leaving the accused without clothing for one and one half hours. He found that it was improper for the police to leave the appellant without clothing for a substantial period of time. Also it was unnecessary to do so as he could have been watched if there was a concern about the destruction of evidence. He observed that at the very least, the police station should have had a blanket which would have provided some warmth as well as helped to maintain the appellant’s dignity and self respect. Finally he observed that the appellant should have been provided with a tissue and stated that “No one should be put in the position of having to use their clothing as a tissue”. [14] The trial judge then articulated the legal issue in this way: “But again, the issue in the end for me to resolve isn’t this conduct, whether it’s proper or improper, but whether the accused statement was a statement of an operating mind.” He concluded, based on the evidence of the appellant on the voir dire, which he accepted, that “ it may be that a lot of individuals, but not Mr. Hoilett, would have been put in such a state of mind being left naked for an hour and a half that most courts would exclude their statements”. [15] The trial judge found that the appellant “knew where he was, he knew what he was doing, he knew he was being interrogated about a sexual assault, he knew he could speak or not speak… he knew he could answer questions or not and that is what he did.” “ He wouldn’t show disrespect to the police because they didn’t show disrespect to him.” “His evidence was that he answered the questions because he had nothing to hide.” The trial judge concluded: “His evidence simply does not bear out a finding that it was either crack cocaine, alcohol, or the taking away of his clothing which led to statements made by someone without an operating mind. That’s just not his evidence.”. ANALYSIS [16] The issues to be addressed in the test for the admissibility of an accused’s statement are succinctly set out in R. v. McLeod, Pinnock and Farquarson (1983), 6 C.C.C. (3d) 29 (Ont.C.A.) by Grange J.A. at pp. 34-5: To be admissible statements must not be obtained by fear of prejudice or hope of advantage, exercised or held out by a person in authority. Nor must they be prompted by oppressive conduct: Horvath v. The Queen (1979), 44 C.C.C. (2d) 385. They must be voluntary in the sense that the words are the utterance of an operating mind: Ward v. The Queen (1979) 44 C.C.C. (2d) 498. [17] In that case there was a skin search of the accused before the statements were taken. The court stated at p. 34: It may well be that in some cases and for some offences a skin search is so demeaning and unnecessary as to be oppressive and detract from the voluntariness of a statement. It is to be remembered that the accused in the case at bar were arrested on charges of attempted murder and armed robbery. In such circumstances it was conceded by counsel that strip-searching for weapons was not unreasonable. No unnecessary indignity was perpetrated and the accused were not questioned, nor were their statements taken, while they were naked. [18] The history of the role of oppressive conduct in the voluntariness analysis was reviewed by the Nova Scotia Court of Appeal in R. v. Oickle (1998), 122 C.C.C. (3d) 506 . The court noted that the role of oppressive conduct was referred to by Laskin C.J. speaking for the court in Hobbins v. The Queen, [1982] 1 S.C.R. 553 at 556-7 where he said: There is no doubt that the state of mind of the accused is relevant to the admissibility of a statement made by him to the police after interrogation, and even if he has been cautioned...An atmosphere of oppression may be created in the circumstances surrounding the taking of a statement, although there be no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence. [19] Hill J. elaborated on the issue in the case of R. v. Alexis (1994), 35 C.R. (4th) 117 (Ont. Ct. Gen. Div.) at 155: The courts have extended the voluntariness test to exclude statements taken by persons in authority in circumstances of oppressiveness. A critical area of focus is the intersect of the common law right of silence with the legitimate interest of the state in investigating crime. However, where the conduct of the authorities is such as to create a general atmosphere which is so oppressive that the declarant’s free will is effectively overborne by the interrogator then the ensuing statement is thereby rendered inadmissible. In effect, such impugned conduct on the part of the police is seen as sapping the will of the interviewee to resist and to effectively control his or her right to choose to speak or to remain silent. …. A judicial finding of oppressiveness is necessarily contextual. The circumstances of each case must be scrutinized with no one factor or combination of factors reducing themselves to an automatic formula. [20] In Oickle the court noted at p.520-1 after referring to Hobbins and Alexis, that fairness in the criminal process has been recognized as an underlying consideration in the confession rule, and referred to the comments of Sopinka J. in R. v. Whittle (1994), 92 C.C.C. (3d) 11 (S.C.C.) at p. 24: Although the confession rule in its traditional formulation had as its raison d’etre the reliability of the confession, a strong undercurrent developed which also supported the rule in part on fairness in the criminal process. …. The preoccupation of the common law and Charter cases in preserving for the suspect the right to choose has been in relation to state action. Did the action of police authorities deprive the suspect of making an effective choice by reason of coercion, trickery or misinformation or the lack of information? [21] In this case, the trial judge relied extensively on an earlier decision of the Nova Scotia Court of Appeal in R. v. Owen (1983), 4 C.C.C. (3d) 538, where the accused was left naked for 15 minutes in a small cell before he began to be questioned over a period of 14 hours. He eventually gave an incriminating statement. The court upheld the trial judge’s ruling that the statement was voluntary and the utterance of an operating mind. The trial judge reached the same conclusion in this case. [22] In his ruling, the trial judge deplored the improper and inhumane conduct of the police in leaving the accused naked and cold with nowhere to even sit down for one and one half hours in the middle of a cold November night. He concluded however, that this accused’s free will was not affected by this treatment by the police. He reached that conclusion based on the accused’s evidence on the voir dire, which he appeared to accept completely, that he had nothing to hide and knew he could answer or not as he determined. [23] However, in reaching this conclusion the trial judge made no reference to other parts of the accused’s testimony where he said that his decision to speak was influenced by how cold he was and that he needed a tissue, and that the officers suggested that these things could be made available to him after the interrogation. [24] Oppressive conduct by the police, in and of itself, will not in every case render a statement of an accused inadmissible as involuntary. There may be circumstances where an accused person has the self-confidence to withstand the more subtle intimidation that is communicated by the police through an atmosphere of oppression. Or an accused may have his or her own reasons for believing that it is in their interests to speak to the police so that oppressive police conduct may not have the effect of making a statement involuntary. [25] However, as the trial judge clearly recognized, many individuals, and I would suggest virtually everyone, would have their state of mind and their will to say no to the police significantly influenced by the spectre of receiving inhumane treatment at their hands for failure to co-operate, a spectre created not by direct threat but by an atmosphere of oppression. Where there has been such conduct in the context of taking a statement of an accused person, the circumstances of the conduct and of the statement, together with the evidence on the voir dire, must be fully and carefully scrutinized by the court in its assessment of whether the Crown has proved beyond a reasonable doubt that the accused person was truly speaking freely and without fear or hope of how he or she would be physically treated by the police afterward. [26] In my view, the trial judge in this case, although alive to the issue of the effect of the clearly oppressive conduct of the police, and having accepted and acted upon the evidence of the accused on the voir dire, failed to consider or refer to the portion of his evidence where he specifically said that the fact that he was left naked in his cell did play a role in his decision to speak to the police. He thought he might get some warmer clothes and a tissue to wipe his nose. That evidence on the voir dire was borne out by the transcript of the audio recording of the statement where the appellant first asked for a tissue and later for warm clothes. On both occasions, the officers said they would speak to the staff sergeant or the officer in charge about his requests. In fact, these promises can also be viewed as inducements, particularly when seen in the context of the accused having just been left alone, naked and cold for 1 and ½ hours. [27] Also in considering the issue of whether the appellant had an operating mind, the trial judge failed to advert to the evidence that the accused was awakened and interviewed after 3:00 a.m., how tired he was, and the fact that the officers had to repeatedly inquire as to whether he was awake. [28] In my view, based on this record, and on the basis of the accused’s evidence on the voir dire, which the trial judge accepted, it is impossible to say that a court could be satisfied beyond a reasonable doubt that the appellant made his statement to the police voluntarily in the sense that it was not induced by the oppressive conduct of the police. [29] The Crown submitted that if this court was satisfied that the trial judge had erred in admitting the statement of the accused, it should apply the proviso in s. 686(1)(b)(iii) of the Criminal Code and decline to allow the appeal on the basis that there has been no substantial wrong or miscarriage of justice. The Crown relied first on the fact that the accused did not admit the offence in his statement but only said that there was consent, which was also what he testified to in the trial. Furthermore, the Crown had another witness, a gas station attendant, who testified that the accused had said to him that he did not do anything to the complainant and that she had taken his money. This was a statement of the accused which contradicted his trial evidence and therefore impugned his credibility without the evidence of his police statement. [30] In my view this is not a case for the application of the proviso. The reasons for judgment of the trial judge put considerable emphasis on the lack of credibility of the accused. His conclusion was based in part on the contradictory statements made by the appellant during his police statement including, first, a complete denial, later a suggestion that the complainant took money from him, and finally the fact there was consensual sex. It was also based on contradictions between the statement and his story at trial. Furthermore it cannot be said that the accused would necessarily have testified in the trial had the statement not been admitted. In my view, it cannot be said that the admission of the statement caused no prejudice to the accused. THE CHARTER GROUND [31] The second ground of appeal raised by the appellant is that the statement should have been excluded because it was obtained following a breach of the appellant’s rights under ss.7 and 8 of the Charter. In particular, the appellant submits that both the timing and the manner of the seizure of his clothes constituted an unreasonable search and seizure. The police removed his clothes in the middle of the night when he was either asleep or resting and not doing anything to destroy evidence, then left him naked, cold and standing up for one and one half hours. This constituted a flagrant breach of his Charter right under s. 8. His statement was taken shortly after he was given some light clothes, but no shoes that fit, and when he was still very cold and sleepy. The appellant submits that the statement should have been excluded under s. 24(2) of the Charter on the basis of a combination of its causal connection with the unreasonable search and seizure, as well as the very close temporal connection. The appellant relies on the recent decision of this court in R. v. Flintoff (1998), 126 C.C.C. (3d) 321 where the court excluded the results of a breathalyzer test taken after the accused was strip- searched in violation of his s. 8 Charter right. [32] At trial the accused did not raise any Charter violation. In fact counsel specifically advised the court that he was not relying on any Charter breach, although it appears from the context in the transcript that he was referring at that time to the s.10(b) right to counsel. In light of our conclusion as to the inadmissibility of the statement of the appellant as involuntary, it is not necessary for this court to deal with the statement and the circumstances on the basis of a violation of the appellant’s Charter rights, now raised on appeal. [33] As there will be a new trial, it is also unnecessary for the court to deal with the last two grounds of appeal, as they both raise issues as to the weight given to parts of the evidence by the trial judge in the reasons for judgment. It is also unnecessary to address the appeal against sentence. RESULT [34] The appeal is allowed and a new trial ordered. Released: June 23, 1999 “K. Feldman J.A.” “I agree. J. J. Carthy J.A.” “I agree. J. M. Labrosse J.A.”