R. v. Gauthier, 2024 ONCA 621
[76] The approach to be taken by an appellate court in its assessment of a trial judge’s finding of voluntariness was recently restated by the Supreme Court of Canada in R. v. Tessier, 2022 SCC 35, 419 C.C.C. (3d) 1, at para. 43:
A finding of voluntariness calls for deference unless it can be shown that it represents a palpable and overriding error. An appellate court may only intervene where the error is “overriding and determinative in the assessment of the balance of probabilities with respect to that factual issue”. The standard of review associated with the finding of voluntariness is tied to the idea that the analysis under the confessions rule must be a contextual one in which bright-line rules are few. Where the law is properly understood and the relevant circumstances considered, the trial judge is best placed to measure that context and make the relevant findings. [Citations omitted.] [Emphasis added.]
[77] Here, the appellant argues that the voluntariness ruling is not entitled to deference because the trial judge misapplied the law and failed to grapple with and consider the gaps in the evidentiary record tendered by the Crown on the voir dire. The appellant makes three submissions:
• The trial judge shifted the burden of proof to the accused.
• The trial judge did not address whether the Crown had discharged its burden of production of an evidentiary record which will permit the court to fairly adjudicate the voluntariness question.
• The trial judge also failed to consider whether the inculpatory statements were provided by an accused who was of “sound mind” when he made them.
[78] I do not agree with the appellant that the trial judge shifted the burden of proof. Read fairly, the trial judge clearly identified that the Crown bore the burden of proof and while the statement “in the absence of any direct evidence from the accused” appears problematic, when read fairly, and in the context of the entire ruling, I am satisfied that the trial judge was stating that on the record before him, the Crown had established voluntariness beyond a reasonable doubt, and the accused did not raise anything that caused him to doubt the voluntariness of the accused’s statements.
[79] I am, however, satisfied that the trial judge erred in his assessment of all the relevant circumstances. In my view, he failed to grapple with the inadequate evidentiary record tendered by the Crown on the voir dire. Regarding the alleged confession to Officer Paquette and Officer Mantha on the way to court, the trial judge acknowledged the defence argument that “there are obvious ‘gaps’ resulting from the testimony of [both police officers], who were apparently together at the relevant times the statements and utterances were made”, but other than pointing out that the two police officers did not record in their notes the same statements, he did not deal with the submission that the evidentiary record was insufficient to prove that the statements and utterances were voluntary.
[80] The trial judge correctly observed that the requirement of proof beyond a reasonable doubt does not apply as to whether the statement was actually made. He stated that to satisfy the onus of showing that the appellant made a statement, the Crown need only introduce some evidence that the accused made the statement attributed to him. The standard of proof required is minimal, and not often the subject of dispute, except in cases such as here where it is not a formal police interview and not video recorded. The trial judge was on solid ground because the accuracy and completeness of the record of a voluntary statement is an issue of weight that is usually left for the trier of fact, in this case, the jury: R. v. Lapointe and Sicotte (1983), 1983 CanLII 3558 (ON CA), 9 C.C.C. (3d) 366 (Ont. C.A.), aff’d 1987 CanLII 69 (SCC), [1987] 1 S.C.R. 1253.
[81] However, the trial judge did not grapple with the defence submission in this case, that the accuracy and completeness of the record of the circumstances surrounding the making of the statement were deficient and those gaps were fatal to the Crown in proving that the statements were voluntary: R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737, at para. 67 (Ont. C.A.). In fairness to the trial judge, this distinction is often difficult to apply, especially in a case like the one at bar where no evidence is called by the defence on the voir dire.[8] It may be unclear in some cases whether the defence is raising issues of voluntariness or issues of accuracy. However, I am satisfied, in this case, the defence did raise the inadequacy of the evidentiary record specifically as a challenge to establishing voluntariness. And the trial judge acknowledged this when he summarized the position of the defence. However, in my view he did not address the deficient record introduced by the Crown in this case. This court stated in Moore-McFarlane, at para. 67:
It is important to read this statement of principle in context. The issue that arose in Lapointe – whether the accused’s capacity to understand English was sufficient for him to have given the statement alleged by the police officers – was one that related to the ultimate reliability of the statement and the weight that was to be attached to it. As the court stated, it was only where an accused’s capacity was so deficient as to make it impossible for him to have given a statement that the trial judge would be justified in excluding the statement on that basis. Hence the court concluded that, in this case, this issue was not a matter to be determined at the voir dire stage of the proceedings. The decision in Lapointe does not stand for the proposition that all issues of accuracy and completeness of recording are left to the triers of fact. Such an interpretation would run contrary to centuries of jurisprudence that require careful scrutiny of the circumstances surrounding the taking of a statement by persons in authority. And, in my view, the completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed. [Emphasis added.]
[82] In this case, the relevant circumstances included the following:
1. None of the confessions was video or audio-recorded. Each is a memo book statement and required the trial judge to examine very closely the completeness of the note entries.
2. The recordings in the notebooks were not verbatim accounts. The two police officers specifically acknowledged that their notes of the statement allegedly uttered by the appellant on the way to court were not verbatim accounts. Officer Mantha agreed with the suggestion that his independent recollection was vague, and his evidence was based entirely on his notes, and he generally had very little independent memory without his notebook.
3. The statement allegedly made by the appellant on the way to court was a “late entry” memo book recording in the police officers’ notebooks. As noted above, Officer Paquette acknowledged that he did not make a note until more than 15 hours after the words were allegedly uttered. He agreed ultimately that he had opportunities to make his notes earlier. Constable Mantha conceded that his notes of the appellant’s admissions were a late entry, and he acknowledged failing in his duty to make timely entry. And he had no explanation for why he made contemporary notes of some of the appellant’s utterances on the way to court, but failed to make contemporaneous notes of the confession to killing his girlfriend. Officer Mantha testified he had no memory of whether he talked with Officer Paquette about it the following day and made his late entry thereafter. Regarding the confession allegedly uttered in the jail cell, Sergeant Keefe believed he probably made his notebook entry an hour after the statement was made, but acknowledged on cross-examination it may have been later or earlier, and he could not be sure. He also acknowledged inserting an additional detail of the statement into the margin of his notes later.
4. The statements were devoid of context, and most of the time that the officers spent with the appellant is unaccounted for. In this case, there are several gaps from when the appellant was arrested to when he made these statements. The police arrested the appellant shortly before midnight on November 14, 2017. But there is sparse information as to what happened from the arrest until 6:00 a.m. in the morning. At that time, Officer Mantha and another police officer who did not testify then took the appellant to the hospital, where he made the statement that was not led in front of the jury. At 3:15 p.m. on November 15, 2017, more than 15 hours after the arrest, Officer Mantha and Officer Paquette transported the appellant to court in North Bay, about 30 minutes away, during which car trip he allegedly uttered the first confession that was heard by the jury. After the court appearance, at 4:56 p.m. he was brought to the jail in North Bay where he was placed in segregation, and there is a longer gap from 4:56 p.m. to 8:00 p.m., when Sergeant Keefe heard the inculpatory statement allegedly uttered by the appellant in his jail cell. There was no evidence led by the Crown as to the appellant’s interactions with others during that time. To the contrary, the Crown led a sparse record, only from those officers who interacted with the appellant who say he made these inculpatory statements, despite the fact that these officers were not with the appellant the entire time.
5. The Crown’s witnesses had little independent recollection of the statements.
6. There was very little evidence led as to the conditions of custody. There was very little evidence led about relevant information central to the voluntariness inquiry such as whether the appellant slept and when he slept, what he ate, or when he ate. There were large gaps in the record with the appellant’s interactions with jail staff besides the three officers who testified, and on what he was doing other than the culminating points discussed by the three officers who testified.
[83] I agree with the appellant that the deficient evidentiary record alone was a sufficient basis for the trial judge to find that the Crown had not discharged its evidentiary burden. The Crown bore the onus to produce a record capable of demonstrating that the appellant’s statements were not the product of undue influence or coercion.
[84] In sum, the trial judge did not deal with the gaps in the evidentiary record. The trial judge’s ruling does not attract deference and I would conclude that, when the relevant considerations are properly considered, the Crown has not discharged its onus to show that the statements were voluntary.
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