CANADA CASE NO. 2028419,
PROVINCE OF NOVA SCOTIA 2028420, 2028421
IN THE PROVINCIAL COURT
Cite as: R. v. Seguin, 2014 NSPC 120
HER MAJESTY THE QUEEN
versus
GREGORY LEO SEGUIN
DECISION RE VOIR DIRE
HEARD BEFORE: The Honourable Judge Frank P. Hoskins
PLACE HEARD: Provincial Court
Dartmouth, Nova Scotia
DATE OF DECISION: January 21, 2014
COUNSEL: Peter Dostal Crown Attorney
Robert Stewart, QC Defence Attorney
INDEX OF PROCEEDINGS
PAGE NO.
DECISION.................................................................................................... 1
HOSKINS, J.P.C. (Orally):
The central issue of the voir dire is whether the Crown has proven beyond a reasonable doubt the voluntariness of the statement made by Mr. Seguin to the police, which had been tendered into evidence as Exhibit 1.
In consideration of this issue, the defence contends that the Crown has failed to discharge its burden of proof beyond a reasonable doubt that the statement was free and voluntary because the Crown did not call certain officers that were present at the time of the execution of the search warrant, and the recollections of the officers who testified were incomplete, and the police did not provide a secondary caution, all of which renders the statement involuntary.
The Crown contends that there's no obligation upon the Crown to call all relevant persons in authority as witnesses in a voir dire on voluntariness. The officers' testimony was thorough enough for the court to be satisfied in establishing the voluntariness of the statement, as comprehensive notes and detailed recollection of every aspect of the investigation may be preferred, but it is not necessary. Moreover, the officers' testimony in the voir dire showed only an absence of memory or of notes of fewer significant portions of the investigative process and, thus, not raising doubt on the voluntariness of the statement. The Crown further argues that, while the secondary caution is a factor to consider in determining the voluntariness of the statement, it is not determinative of the issue.
As I stated earlier in these proceedings, I have reached the conclusion that the Crown has proven beyond a reasonable doubt the voluntariness of the statement as recorded in Exhibit 1 and, accordingly, what follows are my reasons for reaching that decision.
In considering whether the Crown has proven the voluntariness beyond a reasonable doubt in the case, three sub-issues arose, which are:
(1) Whether the Crown proved voluntariness, notwithstanding that it did not call certain officers who were present during the execution of the search warrant and arrest;
(2) Whether the recordings or recollections of the officers who testified are sufficiently complete to establish voluntariness; and
(3) Whether the lack of a secondary caution renders the statement, Exhibit 1, involuntary.
For the following reasons, I have answered each of the three foregoing questions in the affirmative. I am satisfied beyond a reasonable doubt that the statement, Exhibit 1, made by Mr. Seguin, was voluntarily made in the sense that it was not made by reason of threats or promises, inducements or oppression, and I am satisfied that Mr. Seguin's statement was the product of an operating mind.
Before I address the three sub-issues raised in the case, I will first summarize the evidence of the two police officers who testified in the voir dire.
The evidence of Constable MacDougall: In the instant case, the police arrived at Mr. Seguin's residence at approximately 6:10 a.m. on March 24th, 2009, for the purposes of executing a search warrant. Constable MacDougall and Constable Gorman knocked on the residence door. Mr. Seguin answered the door. Constables Gorman and MacDougall were dressed in plain clothes. Constable MacDougall identified himself as a police officer and several officers from the ICE Unit accompanied Constables MacDougall and Gorman during the search of the residence.
Prior to the search, the officers attended a meeting wherein they discussed the warrant so that the officers understood what they were there for and what the investigation entailed. Constable MacDougall recalled the officers present during the search, which included Constable Trider.
Constable MacDougall described what he did when Mr. Seguin answered the door. He stated that they were invited in the residence by Mr. Seguin. Constable MacDougall explained why the police were there, which included an explanation of the contents of the search warrant and the offences for which they were investigating. Mr. Seguin was placed under arrest for the possession and distribution and accessing of child pornography. At that time, Mr. Seguin appeared to be nervous and advised that another person was inside the residence, a Ms. Kimberly Bell.
Upon placing Mr. Seguin under arrest, Constable MacDougall provided Mr. Seguin, from memory, the police caution and the Charter of Rights. He explained to Mr. Seguin that he could contact a lawyer and that he did not have to say anything. He stressed that he told Mr. Seguin that he had the right to talk to a lawyer and that he did not have to say anything regarding the investigation. Constable MacDougall also explained to Mr. Seguin the Legal Aid process; he explained that he had the option to phone Legal Aid.
Following that, Mr. Seguin was taken outside and placed in a police vehicle. Detective Constable Gorman and Constable MacDougall placed Mr. Seguin in the back seat of the police vehicle, which was parked in the driveway of the residence. After Mr. Seguin was placed in the vehicle, Constable MacDougall read from a card Mr. Seguin's Charter of Rights and police caution. Constable MacDougall read the contents of the card into the court record.
After reading from the card Mr. Seguin's Charter of Rights, Constable MacDougall stated that Mr. Seguin responded by saying that he understood. Mr. Seguin was asked whether he wanted to speak to a lawyer, and he indicated that he did not wish to phone a lawyer at that time. After Mr. Seguin was advised of his right to apply for Legal Aid assistance, he stated that he understood.
Following that, Constable MacDougall read the police warning to Mr. Seguin, where Mr. Seguin responded that he understood what was stated to him. He stated that it appeared to him that Mr. Seguin appeared to understand everything that he had stated to him.
Mr. Seguin was then transported to the Halifax Police booking, located on Gottingen Street in Halifax. Constable MacDougall estimated they arrived there approximately 6:30 a.m. Upon arrival at the police station, Constable MacDougall stated that he and Detective Constable Gorman escorted Mr. Seguin into the police station and placed him in an interview room. He estimated that Mr. Seguin was placed in the interview room at approximately 6:35 a.m. Constable MacDougall stayed in the interview room while Detective Constable Gorman acted as a monitor of the recorded interview. The recorded interview commenced at 6:42 and ended at approximately 7:45 to 7:50, approximately an hour.
Constable MacDougall testified that he never made any promises to Mr. Seguin, nor did he make any statements to Mr. Seguin that could be interpreted as being threatening in any way. Constable MacDougall stated that Mr. Seguin did not appear to be under the influence of drugs or alcohol and, while Mr. Seguin was nervous, nothing else stood out. He added that he did not identify any mental health issues concerning Mr. Seguin. Mr. Seguin indicated that he was stressed out but did not say anything about having any mental health issues or being sick. Constable MacDougall stated that nothing transpired that would cause him to stop the interview.
Constable MacDougall testified that, from the point where he first came into contact with Mr. Seguin until the end of the interview, Mr. Seguin was never outside his presence. Constable MacDougall was asked:
Can you recall any conversations that had occurred between Mr. Seguin and anyone, that being you or any other officers, from the time that you first encountered him to the beginning of the recording?
Constable MacDougall's response was:
No, there was no conversations in respect to anything.
He stated:
No conversations in the house, no conversations in the vehicle, and back at the cell block, there was no outside conversations. Everything was audio taped and videotaped.
Exhibit 1 was played in court, which is an audio/video recording of the interview of Mr. Seguin.
On cross-examination, Constable MacDougall agreed that he had never met Mr. Seguin before the date in question. Constable MacDougall stated that he believes that the warrant was executed at approximately 6:10 a.m. He also agreed that nine police officers were involved in the search.
Constable MacDougall stated that the warrant was explained by himself and Constable Gorman, but, because he was handling the warrant, he explained the warrant. Constable MacDougall stated that Constable Trider was present. Constable Trider's can-say statement was read to Constable MacDougall, which stated:
Can testify that he is a member of the Halifax Regional Police assigned to the Integrated Internet Child Exploitation Unit and that he read the warrant and was the fourth person in the door.
It was then suggested to Constable MacDougall that Constable Trider read the warrant, not himself, to which Constable MacDougall replied:
Constable Trider probably would have basically answered questions in relation to the warrant, but I recall me handling the warrant that morning in question.
It was suggested to Constable MacDougall that, if Constable Trider answered questions pertaining to the warrant, then those questions would have been asked by Mr. Seguin. Constable MacDougall answered:
If he has in his can-say that he dealt with the warrant, I would assume that he had some dealings with the warrant.
Constable MacDougall agreed that, after a brief conversation with Mr. Seguin, the officers entered the residence. None of the officers were in police uniform. Constable MacDougall was asked the following question:
Okay. You've got no idea what Constable Trider might have said to Mr. Seguin?
Constable MacDougall's answer was:
No, I would have no idea what Constable Trider said to Seguin.
Constable MacDougall was asked:
And, in fact, you were not with Mr. Seguin the whole time that you were in the apartment, were you?
Constable MacDougall's answer:
I can't say for sure if I was with Mr. Seguin. I was in the apartment. I don't think -- I was the arresting officer, to my recollection. Mr. Seguin would have been around me the whole time, to my recollection.
Constable MacDougall stated that he did not search the residence, that he was simply the arresting officer there. He could not recall conducting the search in the bedroom. Constable MacDougall testified that he provided Mr. Seguin with his Charter of Rights on three occasions: once in the apartment, once in the vehicle, and once at the police station.
Constable MacDougall estimated that it took approximately 15 to 20 minutes to drive Mr. Seguin from Mr. Seguin's residence to the police station. He also could not recall any conversation with Mr. Seguin in the police vehicle during the drive to the police station, including questions asked by Mr. Seguin about the distribution of child porn.
It was suggested to Constable MacDougall that he must have had a discussion with Mr. Seguin about the police and himself being on the computer on March 2nd, because Mr. Seguin comments about it, but Constable MacDougall stressed that he could not recall any such conversation. Constable MacDougall agreed that he never provided the secondary warning to Mr. Seguin and Constable MacDougall stated that he did not recall any conversation between Constable Gorman and Mr. Seguin.
The evidence of Detective Constable Gorman: Detective Constable Gorman testified he attended Mr. Seguin's residence at approximately 6:10 a.m. on November the 24th, 2009, for the purpose of assisting in the execution of a search warrant at Mr. Seguin's residence in Lower Sackville. After knocking on the door, Mr. Seguin answered the door and was placed under arrest by Constable MacDougall and it was explained why the officers were there. The officers entered the residence and conducted a search.
Detective Constable Gorman recalled that Mr. Seguin was provided with the Charter of Rights and police caution after he and Constable MacDougall escorted Mr. Seguin to the police vehicle. He did not recall whether Constable MacDougall provided Mr. Seguin with his Charter of Rights while they were inside the residence, nor did he recall whether the warrant was provided to Mr. Seguin or whether Constable MacDougall was in possession of the warrant.
Detective Constable Gorman recalled that Mr. Seguin was provided with his Charter of Rights and police caution, but could not recall the wording that was used in providing those rights.
Detective Constable Gorman recalled Constable Trider being present for the search as a team member, but does not recall what exactly he did during the search. He could not recall whether Constable Trider interacted with Mr. Seguin. Nor could he recall whether Mr. Seguin had communicated with any other officer as he is not sure whether or not he was the only officer in control of Mr. Seguin. He suggested that it was more likely Constable MacDougall was responsible for the control of Mr. Seguin, as he placed him under arrest.
Detective Constable Gorman could not say that his attention was focused on Mr. Seguin during the entire time while they were in the residence because his attention may have been momentarily distracted while he spoke to another officer on the scene. Nor did Detective Constable Gorman recall any conversations between Mr. Seguin and an officer. He also did not recall having conversation, himself, with Mr. Seguin while in the residence.
Detective Constable Gorman also testified that he had no conversation with Mr. Seguin while they transported him to the police station from the residence. He did not recall any conversation that Constable MacDougall had with Mr. Seguin during the transport from the residence to the police interview room at the police station. Detective Constable Gorman stated that they arrived at the police station at approximately 6:40 a.m. He stated that they had transported Mr. Seguin from 6:15 to 6:40 a.m. He stated that he could not recall any conversations between Mr. Seguin and himself or Constable MacDougall during that time period.
Detective Constable Gorman stated at no time during his interactions with Mr. Seguin during the date and time in question did he have any concern about whether Mr. Seguin understood what was going on, nor was there any concern about Mr. Seguin's mental or physical health. Detective Constable Gorman stated that at no time during his interactions with Mr. Seguin during the date and time in question did he or any other officer make any promises or threats of any sort to Mr. Seguin. Nor did he or any officer make any comment about the possible penalties involving the charges under investigation.
On cross-examination Detective Constable Gorman stated that he could not recall how Mr. Seguin was dressed on the date and time in question. Detective Constable Gorman estimated that he was inside the residence for approximately five minutes before he and Constable MacDougall escorted Mr. Seguin to the police vehicle and then to the police station.
Detective Constable Gorman agreed with the suggestion that, during the period of time that he and Mr. Seguin was in the residence, which was approximately five minutes, that it is possible that Mr. Seguin could have had contact with officers in the residence, given the size of the apartment and the number of officers present. Detective Constable Gorman stressed that he did not have any conversation with Mr. Seguin during the transport to the police station and does not recall any conversation between Constable MacDougall and Mr. Seguin.
Detective Constable Gorman stated that Mr. Seguin would not know that the police were monitoring his computer on March 2nd. As to whether anyone would have told him that, Detective Constable Gorman stated that the police do not monitor specific individual computers and that he, Detective Constable Gorman, did not tell Mr. Seguin that.
A portion of Constable Trider's can-say was read to Detective Constable Gorman. It stated that he read the warrant and was the fourth person in the door of 59B Smokey Drive. Detective Constable Gorman stated that it is possible that Constable Trider read the warrant.
As stated, the Crown tendered Exhibit 1, which is an audio/video recording of the statement that Mr. Seguin made to the police at the police station on the date and time in question.
Now, that is a summary of the evidence called in the voir dire. Having carefully assessed Constables MacDougall and Gorman's evidence, which included my observation of their demeanour while they testified, I accept their evidence. I find that there was no significant internal contradictions in their respective evidence, nor was there any significant inconsistencies between their evidence. In fact, I find that the officers both testified in a straightforward manner, were clear in their recollections of their involvement in the matter and candidly admitted what they could not recall, and their reasons for that were adequately explained.
Both Constables MacDougall and Gorman were confident in answering questions and without hesitation provided the necessary detail. They were not argumentative or evasive, even when pressed on certain matters that were beyond their knowledge, such as whether Constable Trider had any conversations with Mr. Seguin.
Having observed Constables MacDougall and Gorman's demeanour during their testimony and having carefully listened to their evidence, I do not find that they embellished or exaggerated their evidence in any way, as I found that both officers testified to the best of their abilities, were sincere, and readily conceded their failure to recall certain specific details and adequately explained their reasons for their inabilities to recollect certain details in the sequence of the investigative process.
In my view, their evidence was persuasive as both provided their testimony in a fair and appropriate manner, possessed good recollections of their involvement in the investigative process, withstood a thoughtful cross-examination, as they were unwavering in their responses, and both witnesses, Constables MacDougall and Gorman, fairly responded to the suggestions put to them in cross-examination as they either agreed or disagreed with the suggestions put to them and provided reasonable explanations where required.
In other words, I did not find either Constable MacDougall or Detective Constable Gorman careless or reckless in answering questions, but were rather thoughtful and candid, which was consistent with their deportment while on the stand. Indeed, the same deportment was evident of Constable MacDougall during the video recorded statement, Exhibit 1.
Again, the overarching issue in this voir dire is whether the Crown has proven beyond a reasonable doubt that Mr. Seguin's video recorded statement made to the officers was voluntary and made with an operating mind.
The onus is on the Crown to prove beyond a reasonable doubt that the statement made by Mr. Seguin was voluntary, as that term is defined in the jurisprudence. As stated by the authors of The Law of Evidence in Canada, 3rd Edition, Butterworths Canada Ltd., Toronto 2009, at pages 437-430, at pages 437-38:
Reduced to its essentials, the voluntariness inquiry focuses predominantly, though not exclusively, on the ability of the accused to make a meaningful choice whether or not to confess. All the surrounding circumstances, including the accused's mental state, are considered in evaluating whether the conduct of the authorities deprived the suspect of making a meaningful choice by reason of threats, inducement, oppression, coercion, trickery, misinformation or other abuse. Causation, which was a component of the traditional Ibrahim rule, thus remains relevant in analysing the relationship between the police conduct and the resulting confession under the modern confession rule. The voluntariness test should not be mechanically applied to the facts of a particular case, rather, the trial judge should evaluate all of the circumstances of each case to determine whether the confession is voluntary in the broad sense of the term.
The Supreme Court of Canada confirmed in R. v. Oickle that voluntariness is shorthand for a complex of values. The voluntariness test thus encapsulates the various rationales and considerations underlying the confession rule in an overarching contextual assessment. The multi-faceted nature of the test is well summarized in the Supreme Court's recent decision in Spencer. In Oickle the court recognized that there are several factors to consider in determining whether there's a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and should not be understood as a discrete inquiry completely divorced from the rest of the confession rule. On the other hand, the use of police trickery to obtain a confession is a distinct inquiry, given that its more specific objective is maintaining the integrity of the criminal justice system.
The author's note at page 438:
The cases should be seen as illustrative of the factual situation where trial judges or appellant courts have decided that a particular statement was voluntary or involuntary. Moreover, even though some circumstances may be conveniently collected in categories, the existence of a particular circumstance in a case may not automatically render a statement admissible or inadmissible.
The authors refer to a number of factors which are well set out in the law that the courts ought to consider. At page 451, under the heading “The Operating Mind Requirement”, the learned authors of The Law of Evidence Canada, supra, page 451 state:
A statement may be involuntary when it is not the product of an operating mind. The operating mind test of voluntariness focuses on the accused's state of mind at the time he or she makes the statement. The causes for a lack of an operating mind include physical shock, lack of intellectual capacity, hypnosis, the self-induced drunkenness, impaired mental capacity is insufficient to preclude voluntariness on its own, may, nonetheless, impact on the voluntariness broadly conceived.
At page 453 the authors stated:
The court in R. v. Oickle adopted the threshold test for operating mind enunciated in Whittle as follows:
Sopinka explained that the operating mind requirement does not imply a higher degree of awareness, that knowledge of what the accused is saying and that he is saying it to the police officers who can use it to his detriment. I agree and would simply add that, like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confession rule. The operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible.
The next paragraph the authors state:
In R. v. Spencer, Deschamps, J., reiterated that threats or promises, oppression and operating mind doctrine are to be considered together. In some situations the suspect may pass the Whittle operating mind test, but the suspect's mental capacity, in combination with other vitiating factors, may render the statement involuntary. Following Oickle and Spencer the ultimate test in voluntariness, and a trial judge should analyse each vitiating factor, from threats to trickery to oppression to operating mind, in the context of the other vitiating circumstances.
And lastly the authors state:
The absence of other vitiating circumstances may not, however, be determinative. In some situations a statement may be involuntary or an accused does have an operating mind under the Whittle test, even if the police are properly investigating a crime and do not use trickery to offer an inducement to the accused. For an example, in R. v. Ward the accused provided a confession to the police after having just regained consciousness from a motor vehicle accident. Unbeknownst to the police the accused was in a state of shock at the time and the Supreme Court held the confession inadmissible for a lack of operating mind.
In essence, voluntariness is almost completely contextual. Because of the variety and complicated interaction of circumstances that can vitiate voluntariness, the inquiry is governed more by guidelines than by rules. A consideration of the entire circumstances surrounding statements is required, which includes a consideration of several factors, including threats or promises, oppression and an operating mind requirement.
In light of that, the three sub-issues must be addressed. With respect to the issue of whether the Crown proved voluntariness, notwithstanding that it did not call certain officers who were present during the execution of the search warrant and arrest, I am of the view that the law is clear that there is no required witnesses and no rule governing witnesses who must be called by the Crown in a voluntariness voir dire.
Prior judicial announcements that voluntariness cannot be proven unless the Crown calls all witnesses connected to the giving of the statement relates solely to the Crown's burden or proof and not to a duty or a rule. Thus, while the Crown may find it impossible to prove voluntariness in the absence of witnesses who played a material part concerning the statement, there is no rule of law that prevents a judge from finding voluntariness in the absence of particular witnesses.
The issue is one of voluntariness beyond reasonable doubt, not which witnesses were or were not called by the Crown. This proposition finds support in the R. v. Socobasin, [1996] N.S.J. No. 387 (CA), decision of the Nova Scotia Court of Appeal wherein the court stated at para. 73:
The accused's position is that the prosecution is obliged to call every witness who had anything to do with an accused who makes a confession from the moment of his first contact with the police until the statement has been given. In my opinion, the proposition stated in those terms is too broad.
Similarly, in R. v. Menezes, [2001] O.J. No. 3758 (Ont.S.C.) an Ontario Superior Court of Justice decision, the court stated, at para. 19:
There is no absolute rule that every person in authority, irrespective of the degree of contact with the accused, need be called on a confessional voir dire.
It would seem that there is no hard and fast rule with respect to when an officer should be heard from, as Justice Hill observed in Menezes, supra, at para. 19:
A flexible rule designed to examine the role of any police officer with real investigatory or custodial contact generally promotes meaningful scrutiny of the relevant government contact.
In the present case, the defence contends that the Crown should have called Constable Trider as he may have conversed with Mr. Seguin, as it was suggested that Constable Trider may have read the warrant to Mr. Seguin. The defence contends that the turn of words in Constable Trider's will-say statement, which is a disclosure document, states that, "He read the warrant," suggests that he may have read the warrant to Mr. Sequin.
However, I find that there is no suggestion in the evidence that Constable Trider or any other officer present at the search, either directly or by any reasonable inference, that any person in authority conversed with Mr. Seguin in the residence about his involvement in the offences alleged during the short time period, approximately five minutes, which was approximately 30 or more minutes before the actual taking of his statement at the police station.
Moreover, another interpretation of Constable Trider's will-say statement is that he simply read the warrant before he searched the residence. The words "read the warrant" would be consistent with that interpretation. In other words, the will-say does not say "read the warrant to".
Also it is important to consider the evidence of both Constables MacDougall and Gorman. Both officers clearly and unequivocally stressed during their testimony that they could not recall observing or hearing Mr. Seguin conversing with any officer while in the residence. I am, however, mindful that they agreed with the suggestion that Mr. Seguin could have talked to an officer.
Be that as it may, the evidence does not establish that Mr. Seguin did, indeed, have a conversation in which threats or promises may have been made. Even if Constable Trider read the warrant to Mr. Seguin, nothing in that would lead a reasonable person to infer that a threat or promise was made.
The next issue is whether the recordings and recollections of the officers who testified are sufficiently complete and reliable to establish voluntariness.
It is trite law that there must be a sufficient evidentiary record of the interaction between the accused and the police in order for the Crown to discharge its voluntariness onus. In fact, this evidentiary obligation extends beyond the interaction between the accused and the police, up to and including the recording of the statement. The Crown is obliged to give sufficient details of the circumstances surrounding the taking of the statement and the actual taking of the statement itself to satisfy the judge beyond a reasonable doubt that it was voluntarily made. Thus, the Crown must produce a sufficient evidentiary record of what was said, by whom, where, when and in what context. The court may then assess the likelihood of inducements, threats or coercive behaviour that may constitute an inducement and finding an absence of same, may conclude that the Crown has proved voluntariness beyond a reasonable doubt.
In the present case, I’m satisfied that the Crown has produced a sufficient evidentiary record of the interaction between Mr. Seguin and the officers, which includes the actual circumstances surrounding the taking of the statement, which is captured by Exhibit 1. I accept the evidence of Constables MacDougall and Gorman that they did not recall any officer making a threat or promise to Mr. Seguin while he was in their custody. The officers did not recall observing or hearing Mr. Seguin converse or talk to anyone during the five minute interval while they were in the residence. Indeed, the combined testimony of Constables MacDougall and Gorman satisfy me that it is speculative to suggest that Mr. Seguin was in any contact, and certainly no legally meaningful contact, with another officer during the entire time period in question. The officers' uncontradicted testimony, which I accept, is that they or any other officer involved in the investigation did not offer a promise or make a threat or inducement to cause Mr. Seguin to make the statement, Exhibit 1.
The officers' evidence of Mr. Seguin's demeanour and observations of him on the videotape fails to raise any doubt of him having been subjected to inducements or improper treatment. Having watched and listened to the videotaped statement, Exhibit 1, I find that Mr. Seguin was alert, attentive, articulate and concerned as he answered questions. His answers were clear, concise and thoughtful. His answers are responsive and without hesitation. He appeared comfortable and engaged in a conversation with the officer which was highly conversational in tone and professional in nature in many respects. I am satisfied beyond a reasonable doubt that the statement was elicited without oppression, fear of reprisal or hope of advantage and there was no breakdown of resolve to remain silent.
As Justice Hill stated in R. v. Menezes, supra, at para. 31:
Repeated review of the videotaped statement permits the following observations. Mr. Menezes is alert and confident. He speaks frequently in an animated fashion with hand gestures and demonstrations. His answers are responsive, clearly spoken without hesitation. He is not shaken or taken aback by Constable Carty's questions, comments or observations. At times the arrestee is smiling. Far into the interview, he elects to sit down cross-legged in the chair. The interview is highly conversational in tone with a give and go flow between the participants.
Again, I am referring to this case because the approach that Justice Hill has taken is similar to the one I have taken here in that I have the benefit of a video and audio taped statement observing the witness' interaction with the police, rather than a police only providing his or her recollections of what had taken place.
I am satisfied beyond a reasonable doubt that the statement was elicited without oppression, fear of reprisal or hope of advantage. There was no breakdown of a resolve to remain silent. In the result, the Crown has established on the totality of the evidence, including Exhibit 1, that the statement was voluntary.
I am satisfied beyond a reasonable doubt that Mr. Seguin knew what he was saying and its potential for use to his detriment. In fact, I find, after reviewing Exhibit 1, that Mr. Seguin was clear, concise and intelligible when he answered the questions posed by Constable MacDougall. Indeed, Mr. Seguin was internally consistent throughout the interview and he struck me as being sincere and honest. I find that Mr. Seguin possessed an operating mind at the time he made the statements, which is demonstrated by his ability to comprehend the questions asked and his ability to provide clear and thoughtful responses.
I am satisfied beyond a reasonable doubt, having considered the totality of the circumstances, that Mr. Seguin possessed sufficient cognitive capacity to understand what he was saying and what was said to him, including his ability to understand and appreciate his Charter of Rights and police caution.
I accept Constable MacDougall's evidence that he was satisfied that Mr. Seguin understood his rights and caution, and I am satisfied beyond a reasonable doubt that Mr. Sequin provided his statement with an operating mind and that it was voluntarily made on the date and time in question. I have no doubt that Mr. Seguin's utterances to the officers were made voluntarily without any threats, promises or inducements or oppression and it was the product of an operating mind.
Having carefully considered and assessed the totality of the evidence, including all of the circumstances surrounding the making of the utterances or statements, I am satisfied beyond a reasonable doubt that the statement made to the officers, as recorded in Exhibit 1, was made voluntarily.
HOSKINS, J.P.C.