R. v. Ordonio, 2025 ONCA 135
[104] The videotape of the 13-hour interrogation shows the appellant periodically resting his head on a table and, at one point, lying on the floor for an extended period of time after Det. Heyes had left the room.
[105] In dealing with the issue of oppressive circumstances in his submissions on the voir dire, Crown counsel recognized that the appellant “was in an interview room for 13 hours and there is no doubt that there was some level of fatigue.”[20] However, he argued that the appellant did not fall asleep while he was interacting with the police officer.[21] As to instances when the video showed the appellant lying on the ground when the officer came in or had his head on the table, Crown counsel contended there was no basis to conclude the appellant was sleeping at those times.[22]
[106] In his submissions, defence counsel argued that the appellant fell asleep at several points during the 13-hour interview, which indicated the interrogation took place under oppressive circumstances. Defence counsel submitted Det. Heyes woke the appellant up three times during the interview:
I count three times. At least three times and then there's a number of other times when Heyes is briefly out of the room and Ordonio is either on the floor apparently trying to sleep or with his head down on the table. It's significant that every time that Heyes is out of the room Ordonio seems to be trying to get some rest either on the table or the floor and every time Heyes comes in he interrupts that, he wakes him up and he confided to me I suppose on cross, well, maybe I should have let him sleep.[23]
[107] At para. 86 of her ruling on the admissibility of the Statement, the trial judge wrote:
Defence counsel maintains that Ordonio fell asleep on one or more occasions. While he is certainly fatigued at points, I cannot conclude from watching the video that he ever fell asleep, and there is no evidence from Ordonio on this point. He certainly remained sufficiently alert during his interactions with Heyes, and it is clear throughout that he is carefully tracking the conversation. [Emphasis added.]
[108] While there was no evidence from the appellant on the point since he did not testify at the voir dire, there was evidence before the trial judge from the other person in the interrogation room, Det. Heyes.
[109] In his evidence, Det. Heyes acknowledged that there were times during the 13-hour interview when he found the appellant had fallen asleep and, on reflection, perhaps he should not have awakened the appellant but let him sleep. The following exchanges took place on the detective’s cross-examination:
Q. Well, he fell asleep a number of times in the room?
A. Correct.
Q. And you woke him up each time?
A. When I came back in, yes.
Q. At least three times, he was sound asleep and you woke him up?
A. I don't know about sound asleep, but he was sleeping, yes.
Q. Well, maybe not sleeping that comfortably, but it was obvious to you he was tired?
A. Yes. Near the end, he was tired.
Q. Oh!
A. There's – I'm not arguing that, no.
Q. Not before the end?
A. No, like near the end, I would say probably around – again, I, I don't want to guess at that. So I'm going to say around 11:30ish maybe, somewhere around there.
Q. So you don't – you didn't perceive that before roughly 11:30 that he was tired?
A. Well, he had shown some signs of yawning, yes.
Q. Yawning?
A. Yes.
Q. Well, falling asleep might be an indication of being tired?
A. It could be.
Q. Is there any other way of interpreting it?
A. Well, somebody has a catnap. I – again....
Q. Well, when, when you were out of the, the room, some times, he put his head down on the table and seemed to be sleeping? You observed that on the video?
A. His head was down. I don't know if he was sleeping or not.
Q. But it was consistent with him trying to sleep?
A. I don't know what he was doing. He may have just been putting his head on the table. I don't know whether he was sleeping or not.
Q. But, but repeatedly, he did that?
A. He put his head on the table, yes.
Q. A number of times?
A. I, I can't tell exactly how many times, but he put his head down, yes.
Q. Okay. You said he was yawning?
A. Yes, correct.
Q. And on occasion, he curled up and tried to – maybe he did actually go to sleep on the floor when you were out of the room?
A. He may have. I...
Q. Well, you saw it.
A. I don't...
Q. You came in and woke him up?
A. I believe on one occasion, yes, I woke him up.
Q. Mm.
A. I, I don't know if I woke him up on three occasions, 'cause I think my walk through the door on one occasion, he woke up.
Q. So, so you, you told us a few minutes ago and if it had come to your attention at 1:30 or whenever this started, that he was tired, that you would have let him sleep then?
A. Yes, I would've.
Q. So when he was trying to sleep, you know, hours and hours later, on the hard floor without a pillow or a blanket, did you not think you should let him sleep then?
A. I didn't really have anywhere for him to sleep, sir.
Q. He was already sleeping on the floor.
A. I know, but you're talking about a pillow and a blanket. I...
Q. No, no.
A. ...I don't have that.
Q. You, you...
A. But...
Q. ...you, you know that's not the focus of the question. This young man has been there for hour after hour.
A. Correct.
Q. Every time you go out of the room, he's either got his head on the table or he's lying down on the floor. He's obviously tired to anyone who was looking at him?
A. Okay.
Q. Is my suggestion.
A. Okay.
Q. You come in three times, I suggest, when he's sleeping and you wake him up.
A. Okay.
Q. If, if you have had – if you would have had that concern at 1:30, if someone had told you he was tired, why wouldn't you have that concern when you actually go in there and see him sleeping?
A. I, I accept that, sir, yes.
Q. You mean you accept that was a failure on your part?
A. Yes, I, I will give you that, yes.
Q. And – well, the next question is why would you wake him up in those circumstances? Why not let him out of – you know, just simple humanity have a bit of sleep?
A. Yes.
Q. Is it because you thought that he might be more vulnerable to the interrogation process if he was exhausted?
A. No.
Q. That never went through your head?
A. No, sir.
Q. Well, I'm suggesting to you that that is an explanation that sort of cries out. Can you give me any other explanation that might also explain why you woke him up?
A. I just wanted to talk to him. I was not trying to overbear him by any means. I just wanted to talk to him and, yes, I, I woke him up, yes.
Q. Well, would there have been a problem waiting half an hour?
A. Probably not, sir, no. [24] [Emphasis added.]
[110] The trial judge did not deal with this evidence from Det. Heyes in her reasons. In my respectful view, for the trial judge to find that the appellant did not fall asleep during the interview in the face of an unequivocal acknowledgement from the interrogating officer that the appellant did constitutes a palpable error of fact.
[111] As well, it was an error of fact on a very material point that affected the trial judge’s assessment of the facts: Oickle, at para. 71. As recognized by Oickle, depriving the person questioned of sleep can create an atmosphere of oppression that leads to false confessions: at paras. 58-60.[25] Indeed, the trial judge recognized this very risk in her ruling on the application to admit expert evidence concerning the association between interviewing techniques and false confessions: 2019 ONSC 3017. In rejecting the appellant’s application, the trial judge wrote at para. 12:
The main concerns about the interview in this case involve its length; the aggressive and leading style of questioning; and the physical conditions throughout, such as fatigue, hunger and discomfort. To the extent those concerns exist, they do not require an “expert” to identify them. That is particularly so where, as here, the entire interview was audio and videotaped. Jurors can evaluate whether questions are manipulative or suggestive. They can see when someone is being bullied or badgered. They know that hunger and exhaustion do not bring out reliable answers. In other words, human experience and common sense will suffice. And to the extent they need direction on this, the court can and should provide it. [Emphasis added.]
[112] While Oickle requires any judicial assessment of voluntariness to take into account all the circumstances surrounding the making of a statement, Oickle recognizes that oppressive conditions, on their own, are capable of producing false confessions stating, at para. 58:
Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession.
[113] Accordingly, I conclude that in light of the evidence of Det. Heyes and the jurisprudence regarding depriving a suspect of sleep during an interrogation, the trial judge made a palpable and overriding error of fact in finding that the appellant did not fall asleep during the 13-hour interrogation.
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