Ruling

1 H.K. ATWOOD J. (orally):-- In order to address this matter, first, I will set out the facts. The charge is as contained in the information before the court. There are three statements in issue. Two are conceded as voluntary and I find them to be voluntary, that is the statement at the scene by Adrian Sappleton and the statements in the car by Gregory Sappleton. They are clearly voluntary and are conceded to be such by counsel representing those two men.

2 The statement at issue is the videotaped statement of Gregory Sappleton's statements to police at the station. The issue raised by Mr. Brown is that raised by the questions and answers of which he has provided a reasonable precis in his written submissions regarding voluntariness, starting at paragraph 21 of part three of those submissions.

3 I made close notes of the questions and answers on the second time that I was able to listen to that portion of the tape and I accept that Mr. Brown's precis of those statements is accurate enough for my purposes. I had thought that the word at page seven, four lines up, "cudos" was a different word, but it could very well be that Mr. Brown is more accurate than I am on that word.

4 Other than that, the most important words that he has undoubtedly transcribed accurately are that officers have stated repeatedly to Mr. Sappleton that unless someone takes ownership of the gun, that everyone in the house is going to be charged.

5 There are some comments that would detract from that, for example, that whether it be the plural of sister or the singular of sister, the officers are stating to him shortly after 1308:09, that they know that it is not his sister's gun. In the context, I think it is reasonably clear that they mean Mr. Sappleton's sister, not his abled sisters. But in my view, it is irrelevant for my purposes whether they mean one sister or all of them. It is clear from the remaining transcript provided by Mr. Brown that officers are stating that they will, in fact, charge not only Mr. Sappleton's mother, but also his sisters, if someone does not take ownership of the gun.

6 In the context of the interview, it is clear that they are not asking him to go out and talk to Darkman, to have Darkman admit to that. They expect that Mr. Sappleton will take ownership and in my view, they expect that because he has loyalty to his mother and his sisters.

7 The general law on confessions and admissions is so trite that it hardly bears setting out, but I will do that in any event, because the discussions today have centred on some fairly sophisticated fine points of that law and I think it is important to remember the basic principles of the law regarding admissions and confessions.

8 The fundamental principle derives from Boudreau and The King reported, [1949] S.C.R. 262 and that is that a statement made by an accused to a person in authority is only admissible if freely and voluntarily made.

9 It is not necessary for me to point out that part of that is "a statement," because it is quite clear, I think in the law now, it is not simply confessions that are inadmissible if not proved beyond a reasonable doubt to be freely and voluntarily made, it is any statement. Persons in authority are not in issue, clearly the police are such.

10 What is in issue in this matter is whether or not the statements were freely and voluntarily made. The principle behind that was set out in R. v. Warickshall, which is reported at 198 E.R. 234, a 1783 decision of the House of Lords, and that is that involuntary confessions are unreliable and thus inadmissible.

11 I am well aware that there has been some trenching on that during the past half century. R. v. Logan, in my view, is difficult to reconcile with Warickshall. Warickshall was decided in the light of case history in England, that permitted the execution of criminals for what would today be considered perhaps summary conviction offences and the relative routine use of torture, such as pressing suspects, in order to extract a confession, that is where suspects were placed beneath a board and stones were added to the board until they either died or confessed.

12 It is difficult to reconcile Logan, with Warickshall. I accept that our Court of Appeal has indicated that Logan is properly decided.

13 The test for voluntariness is straightforward. It's set out, of course, in Ibrahim and The King, the 1914 decision of the Privy Council reported at [1914] A.C. 599.

"To be admissible, the statement made by the accused to a person in authority must be made without fear of prejudice or hope of advantage."

14 R. v. Alward, the 1976 decision of the Supreme Court of Canada, (affirmed by the Supreme Court of Canada, it was originally the New Brunswick Court of Appeal, [1976] N.B.J. No. 220, but affirmed by the Supreme Court of Canada at, [1978] 1 S.C.R. 559), sets out that:

"Actual oppressive methods such as threats or inducements made by the person in authority to obtain a confession from the accused will vitiate the aspect of voluntariness and thus render a statement inadmissible."

15 It is my view that unless the Crown proves the matter beyond a reasonable doubt, the statement does not go in. That's trite law, but I will state it, I do not need from the defendant, in order to find that the Crown has not proved the matter beyond a reasonable doubt, if in fact that is my conclusion.

16 The burden of proof, as I have stated, is at all times on the Crown. I would cite Sankey and The King, [1927] S.C.R. 436, a Supreme Court of Canada decision to that effect. But it is also clear that that is the test at the preliminary hearing, not simply at trial. I am well aware that for some years that issue was undecided, but in my view, it is beyond doubt that at this point the same test applies.

17 The issue that I think Mr. Canton sets out is two-fold. One is in fact the statements to which I refer from paragraph 21 and thereafter in Mr. Brown's materials; a threat/inducement as he put it, or, in the alternative, is it simply a statement of fact that officers were entitled to put to the accused?

18 And, secondly, is it so subtle and delivered in such a low key fashion that I should conclude that Mr. Sappleton's will was not overborne?

19 With the greatest of respect to Mr. Canton, I think he is wrong on both counts. As to the second point, I think the law is clear. From R. v. Pettman, a decision from the Alberta Provincial Court set out at [2003] 343 A.R. 77;

"Threats and inducements during the interviewing of accused will still raise reasonable doubt, even though they be subtle and delivered in a low key manner."

20 I have had the opportunity to review twice the statements made by police during that paragraph to which I have repeatedly referred. They were not subtle, but they certainly were low key. That is, they were not delivered in a menacing fashion and were delivered simply as a friendly officer might attempt to assist a defendant with certain considerations. I agree with the Learned Provincial Court Judge in Alberta that that does not answer the matter. The fact that officers are not clearly menacing when providing a threat or an inducement is, in my view, irrelevant to my consideration.

21 Much more important, of course, is the primary focus of Mr. Canton's submissions and that is that the statements made by the officers are simply a statement of fact.

22 To that effect, Mr. Canton cites two decisions of the Ontario Court of Appeal, first, R. v. Teskey, [2005] O.J. No. 3759, a decision from 2005. The panel was Justice Doherty, Weiller and Gouge, with Justice Doherty providing the decision of the court. Teskey was a murder case. He was alleged to have killed his wife and to have incinerated her body and dumped it in a ditch.

23 In the course of interviewing Mr. Teskey, officers stated to him that they believed that there were grounds sufficient to call the Children's Aid Society, on the grounds that Mr. Teskey's children were at risk if he was to re-attend at the home. They apparently based that on a statement made by Mr. Teskey during an initial interview, that he would go home and "do what he had to do". One would think that that would raise concerns in the mind of any person. The officers stated to him what they were going to do. The appellant then asked the officers, "What options do I have?" or words to that effect. The officers replied, if you choose to tell the truth and admit that you killed your wife, you will be placed in custody, your children can stay with your parents and since there will no longer be any concerns about the children being harmed by you, the Children's Aid Society will not be contacted or words to that effect. He then made a statement following a reasonable period of time, that he had cremated the body. Because of that statement, he was taken back into an interview room and re-interviewed and provided a somewhat exculpatory statement, that is that he had simply reacted to being beaten by his wife and pushed her, that she had struck her head. The matter came before the Court of Appeal on the basis that the comments regarding the Children's Aid Society amounted to a threat and that the statement derived therefrom was inadmissible because of that.

24 The Court of Appeal at paragraphs 73 and thereafter was of the view that the statement was neither a threat nor an inducement. It was not a quid pro quo as Justice Iacobucci stated in Oickle at paragraph 57; instead, it was a simple statement of fact in response to a question by the defendant. As Justice Doherty said at paragraph 73:

"It was a reasonable response to the situation faced by the officers."

25 Justice Doherty, at paragraph 74, speaking for the court, gave the central thesis of Oickle in Justice Iacobucci's decision at paragraph 57 as follows.

"In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interest 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. The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or promise."

26 On the trial judge's assessment of the evidence, Justice Doherty continued:

"There was no quid pro quo or even any inducement. There was only an honest straightforward response by the investigating officer to the appellant's question."

27 Justice Doherty went on at paragraph 76 to analogize to R. v. Backhouse, [2005] O.J. No. 754, which was the other decision cited to me by Mr. Canton. I think that Justice Doherty's statement of the ratio in Backhouse is accurate and relieves me of the necessity of reviewing Backhouse in detail. Essentially in Backhouse the court found, as it did in Teskey, that the statement alleged to be an inducement was simply an accurate appraisal of the circumstances. Justice Doherty quoted Justice Rosenberg as follows, at paragraph 76, citing Justice Rosenberg's decision in Backhouse, at paragraph 121.

"The statement to the appellant was an accurate appraisal of the circumstances. It would be an odd result if police could not invite a suspect who was protesting his innocence and was willing to speak to the police, to provide an alibi that could clear him of liability. That is what occurred here. [emphasis added),"

Justice Doherty continued at paragraph 77.

"it would be an odd result in the circumstances of this case if the police were not permitted to apprise the appellant of the involvement of the Children's Aid Society and the reason for that involvement. To send the appellant home without any advance notice that his children would be apprehended by the Children's Aid Society, would be to invite a potentially very volatile confrontation between the appellant and the Children's Aid authorities."

28 It does not require my thin little voice to be added to Justice Doherty's, but I will do so anyway. I would think that the correctness of Teskey and Backhouse is beyond question, that is that in each case the officers investigating the matter were making simply a statement of fact. In the one case 'we are going to call the Children's Aid Society,' when asked what the options were, "Well, if you confess, we will not have to because you will be in custody." In the other case, a simple statement in Backhouse that if Mr. Backhouse could provide the alibi about which he had spoken, that that would, if confirmed, result in his release.

29 The circumstances before me, in my view, are different indeed. First, it is not clear to my mind at all, that the statement made by the officer was accurate or even truthful. There is no evidence before me, (in fact, the contrary is perhaps the case,) that Ms. Lawrence, the Sappletons mother, was detained or charged or arrested for the offences that are at bar. There is no evidence, similarly, that any of Mr. Sappleton's sisters were detained or arrested or charged for those offences. That may be the case, but certainly there are hints that it is not.

30 In addition, it would be, I would think, contrary to usual policing practices to charge the mother of persons who are the primary suspects with possession of a loaded pistol.

31 In addition, as Mr. Brown points out, no one, including Gregory Sappleton, made any statements with regard to the various drug bags that were found in the home, and, it is certainly the case, counsel assures me, that none of the Sappletons sisters and their mother were charged with possession of any of those narcotics.

32 All of that leads me to conclude that the officers were simply trying a tactic with the Sappleton brothers, that is, unless somebody takes ownership, everyone is going to be charged and to make it absolutely explicit, when Mr. Sappleton asked whether that included those persons to whom I have already made reference, the officers stated that they would charge the mom and the sisters. That is shortly after 1308:09, at the bottom of page nine of Mr. Brown's materials.

"Who gets charged, Greg?"
 

"MR. SAPPLETON: Everybody?
 

POLICE: Everybody, including your sisters.
 

MR. SAPPLETON: Including my mom?"
 

"Including your mom, right. You want to see that happen?"
 

"ANSWER. No.
 

OFFICERS: I sure as hell don't want to see that happen, but what else do the police have to do?"

33 I would think that it is beyond question that Mr. Sappleton had in his mind at that point that his mother and his sisters would be charged unless he took ownership. No one I think in that room thought that Mr. Darkman would take ownership and it was subsequent to that, that Mr. Sappleton made certain comments to the police that indicate, at the very least, that he was familiar with the gun in question, that is, he describes it to a degree of accuracy that indicates that he had seen it at least at close range.

34 While it is not strictly speaking a confession, it is certainly a statement and it is certainly a statement that weighs tellingly against Mr. Sappleton in these proceedings, and, in my view then, if it is not voluntary on the terms that I have already set as defining voluntariness, it must be excluded.

35 I would go beyond that. Mr. Canton has very reasonably, as he always does, suggested that I have no evidence with regard to Mr. Sappleton's adherence to the G code and I am sure he is quite right in suggesting to me that different persons have different allegiance to that Code. But it is absolutely clear that Mr. Sappleton says at least at two points, that he should not be doing what he is doing. The impression from the tape is: an intelligent man, well aware that he is doing something wrong in making statements to the police and it is clear that he thinks that wrong is that is that he is acting as a rat.

36 Given the way that he phrased it and having already directed myself that I do not need specific evidence that his will is overborne, within the meaning of R. v. Oickle, but simply need to have a reasonable doubt on the issue at bar, it would be my view that that is some evidence on the fact that his will was being overborne.

37 THE COURT: Actually, it's time for the morning break. Before I turn to the issue, that is that - has been raised earlier by Mr. Brown on a previous day, with regard to the actual statements that members of the family would be charged, I'll take the break before we do that and then we'll turn to that portion of my decision. Ladies and gentlemen, we're going to take 20 minutes, okay, if that's all right. I hope that the Sappletons can get a bit of a break that way, as well.


RULING

38 H.K. ATWOOD J.: As I indicated before the break, I was about to turn to the issue of whether a statement by a person in authority, that is essentially a threat made with regard to a person other than the person in custody, can be a threat or inducement.

39 I turn first in that regard to R. v. Spencer, a decision of the British Columbia Court of Appeal, reported at [2006] B.C.J. No. 366. At page 10 of the Quicklaw variant of Spencer, otherwise paragraph 34, Justice Donald of the British Columbia Court of Appeal, concurred with by Chief Justice Finch, stated at paragraph 14:


"The leading case in Canada on the common law of confessions is R. v. Oickle (2001) 147 C.C.C. (3d) 321. It sets out a stringent appellant review standard at 355, paragraph 71. It a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one and should only be overturned for some palpable and overriding error which affected the trial judge's assessment of the facts. (See Swartz and Canada, [1996] 1 S.C.R. 254 at page 279.)"

At paragraph 37, Justice Donald continued:

"As it is possible that a finder of fact could determine that the confession was voluntary absent these errors, I would order a new trial rather than substitute verdicts of acquittal. The presence of an inducement is not in itself determinative. it has to be considered in context, in deciding whether the accused made a statement because of the inducement. That is what I understood is meant by the phrase in Oickle, "The will of the subject has been overborne," as it appears in the following passage at 349 to 350 of Oickle. 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 interest to confess. This becomes improper, only when the inducements, whether standing alone or in combination with other facts, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne."

40 Justice Donald then quoted from Paternak, [1995] A.J. No. 795, and indicated that Paternak was no longer good law. Continuing at paragraph 40:

"The second reason why I say that the Paternak formulation is wrong, is that it substitutes volition as the key element, when according Cc Oickle at 350, paragraph 57, it is the element of a quid pro quo that occupies centre stage, "The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise." By way of illustration, assume that a confident self-possessed suspect demands a promise from his police interrogator that he will receive leniency if he confesses and assume further that the officer makes that promise. The suspect is not deprived of his will, but according to Oickle, the quid pro quo would surely render his confession inadmissible. However, the test in Paternak would dictate the opposite result. Whether the suspect is strong or weak, robust or timid, a clear inducement of leniency gives rise to the same concern of a false confession. The risk in using Paternak is that only those who are cowed by the police while responding to an inducement have the protection of the voluntariness rule. The further risk in focusing on the demeanour of the accused, which may have occurred in this case, is that inducements will be minimized or ignored if the accused is strong minded. In this case, the appellant was assertive, even aggressive in his interview with Parker, but the officer recognized the appellant's vulnerable spot. Tanya was the centre of his universe. The appellant made it clear that his goal was to keep her out of it. In this context, it is possible that a trier of fact could come to the conclusion that the officer's middle ground amounted to a quid pro quo, an implied promise that in return for the appellant's confession, the officer would not recommend charges against Tanya and he would speak to other investigating officers to ensure that they did not recommend charges against her either. A promise of leniency is a classic inducement. (See Oickle paragraph 49) And holding out a hope of advantage for a loved one is also an inducement. (See Oickle, paragraphs 51 and 52.)"

41 In R. v. Anderson, a decision of the Saskatchewan Court of Queen's Bench, Justice Rabinsky as the presiding Justice, reported at [1990] S.J. No. 298. Justice Rabinsky set out at pages 14 and 15 of the Quicklaw variant:

"At first blush, the answers given by the accused would appear to be voluntary. However, in the context of the whole scenario, I find that, in fact, he was induced into making the admission that the marijuana found in the car driven by his parents was his. Sergeant Tufts testified that when he asked the accused if he knew that his parents had been stopped at Bonneville with two pounds of marijuana in the vehicle, he answered no. Sergeant Tufts then asked if he was going to let them take the rap. This can be interpreted as meaning that if he took the rap, his parents would not be charged. From this moment on, the accused spilled all and then took the officers to the school bus, where he handed them a blue bag containing three plastic bags with green plant-like material in them. In my view, it was necessary for Sergeant Tufts to specifically state that if he took the rap for his parents he would not be charged. The inference was there."

42 That is clearly, in my view, a mis-statement. It should have said, "... if he took the rap for his parents they would not be charged. The inference was there."

"The accused was induced to make the admissions in the hope that by doing so, he would protect his parents."

43 In my view, the case at bar is different from Anderson, at least to the extent that it is absolutely explicit that Mr. Sappleton's mother and sisters would be charged.

44 In R. v. Jackson, another decision of the British Columbia Court of Appeal, reported (1977), 34 C.C.C. (2d) 35, the court being composed of Justices McLean, Robertson and McIntyre, in the headnote, the case is reported as containing the following ratio.

"For a promised benefit to a person other than the accused to vitiate a confession, the benefit must be of such a nature that when considered in the light of the relationship between the person and the accused and all the surrounding circumstances of the confession, it would tend to induce the accused to make an untrue statement."

45 In my view, the last portion of that is no longer true, that is, it is no longer a requirement that it would tend to induce an untrue statement. It is simply the law at this point that it would tend to induce the defendant to make a statement that is not voluntary within the meaning of the law that I have already set out. However, the ratio that it is possible to have an inducement to another person is, in my view, still good law, as I have set out in Anderson and, indeed, in Spencer, as Spencer refers to Oickle, as well, and sets out the parameters of this area.

46 In Jackson, at pages 38 and 39, the court stated as follows, Justice McIntyre as he then was, providing the judgment of the court. I am reading from approximately 80 percent of the way down page 38.

"These cases, however, insofar as they support the general proposition advanced by the appellant, must be considered in relation to their own facts, it is my opinion that for a promise of benefit to a person other than the accused to vitiate a confession, the benefit must be of such a nature that when considered in the light of the relationship between the person and the accused and all the surrounding circumstances of the confession, it would tend to induce the accused to make an untrue statement, for it is the danger that a person may be induced by promises to make such a statement which lies at the root of this exclusionary rule."

47 Again, I note parenthetically that this is prior to the introduction of the Charter, prior to the explicit right to silence, prior to those decisions which have indicated that it is simply the making of a statement which is not voluntary within the meaning of the law that is at issue, not whether or not the statement is true.

48 The court, Justice McIntyre continued:

"An example of such a promise is given in Hart (supra), where Lord Reid, with whom the other learned law Lords agreed, said at page 821, "Suppose that a daughter is accused of shoplifting and later her mother is detected in a similar offence, perhaps in a different branch, where the mother is brought before the manager of the shop. He might induce her to confess by telling her that she must tell him the truth and it will be worse for her it she does not or an inducement might be that if she will tell the truth, he will drop proceedings against the daughter, obviously the latter would in most cases be by far the most powerful inducement and far the more likely to lead to an untrue confession.""

49 Further down on page 39, approximately half way down the page, Justice McIntyre writing for the court continued:

"Furthermore, in my opinion, it would not be realistic to consider that the relationship between the appellant and Wynn, insofar as it can be determined from the evidence, was such that the case even approaches the mother/daughter illustration given by Lord Reid in the Hart case. These men met in prison only a year before the trial, they commenced a new criminal association on their release from prison."

50 Clearly Justice McIntyre was indicating that the relationship between the mother and daughter is of a far different quality than the relationship between two felons who have become friends in prison, and, in my view, was explicitly stating that the relationship between a mother and daughter, either way, was of such a nature that an inducement offered to protect the other would result in a statement being involuntary when extracted from the person to whom the inducement had been relayed.

51 That is made even more clearly by Justice Penell in R. v. Belanger reported at (1978) 40 C.C.C. (2nd) 335 and in my view, still good law. Justice Penell stated at page 340:

"There is convincing authority for the proposition that a promise benefit to are other than the accused can constitute an inducement (See R. v. Jackson, R. v. Weighill, [1945] 2 D.L.R. 471, R. v. Myles [1923] 2 D.L.R. 880, (citations provided)). On the evidence adduced in the voir dire, I do not believe that the relationship between the accused and Yvonne Smith approached the bond of a mother/son relationship. She is 35 years old, the accused is 26. Yvonne Smith testified that she had no authority over the accused, that although she confided in the accused, he never discussed things of a personal nature with her. The accused probably had an affection for Yvonne Smith, but I entertain a reasonable doubt whether it was of a strength sufficient to induce the accused to make the alleged statements."

52 Now, Justice Penell has obviously incorporated the overall test in the voir dire into that last comment, that is that he entertains a reasonable doubt whether it was of strength sufficient to induce the accused to make the alleged statement. He reversed it, but what he is essentially saying is that he finds this statement to be voluntary beyond a reasonable doubt, because he does not find that the relationship is of a strength sufficient to be equivalent to a mother/son relationship.

53 Here it is absolutely clear the relationship is that of mother and son. It is not necessary for me to determine whether the relationship between a brother and sister or between a brother and several sisters, one of whom is disabled, is sufficient to be equivalent to those comments in Oickle, Jackson, Belanger and Anderson that I have already set out. The relationship here is the strongest, I think, that our society encompasses and that is between a mother and child. The inducement is a specific statement that Mr. Sappleton's mother would be charged unless he made statements admitting to ownership of the gun.

54 The fact that he did not make those statements does not detract from the conclusion that I have and that is that it is a quid pro quo, it is an obvious quid pro quo and one that (although it is not necessary for me to so) I find it overbore his will to some extent. I have more than simply a reasonable doubt, I have very large doubt indeed as to whether the statement was voluntary on that basis and the statement will be excluded.