Ontario Criminal

Charter of Rights

Fundamental justice
Accused’s statement to police was admissible

Accused charged with 15 sexual offences against complainant. Defence argued that statement should be excluded because accused’s right to remain silent under s. 7 was infringed. At time of allegations that accused had kissed, fondled and had oral sex with complainant, she would have been 15 years old while accused would have been 35. Allegations related to five discrete encounters with one being at home of accused’s romantic and business partner, where accused lived. Accused was informed he was being charged and told to turn himself in following morning, and which time he would be arrested and charged with three sexual offences. Detective told accused he should contact lawyer before coming to police station, but that in any event, he would be given opportunity to contact lawyer at police station. Accused relayed that he had received half hour legal consultation as to his rights over lawyer referral service by telephone night before. Accused was arrested, read his rights, and processed, spoke with counsel for 20 minutes and then interviewed for approximately one hour and 20 minutes. Accused’s statement was mostly exculpatory but he did make incriminating admissions. Accused repeatedly stated he did not wish to answer any more questions, but was convinced to do so on several occasions. Accused appeared alert and focus, with nothing impairing his faculties. Statement admissible. Court found there were no threats or inducements and that instance of detective explaining that in some circumstances where police were concerned that there may be other complainants who had not yet come forward, they did media release publishing name of person accused of sexual offences, was not threat but real concern that accused in past may have inappropriately committed sexual offences against other minors, in addition to complainant and accused’s partner’s daughter. Although interview got heated in end, accused gave as well as he got, and shut down interview. On virtually all of occasions when accused said that he was not going to answer any more questions, he continued to have conversation with detective, pushing back against her allegations and, at times, raising questions of his own, demonstrating exercise of free will. Accused showed considerable control throughout interview and never strayed from his denial that he had not engaged in any sexual behaviour with complainant. Accused exercised his rights by agreeing to speak about some issues and refusing to answer questions about others. Detective utilized number of standard police tactics none of which crossed line into area of trickery that would shock conscience of community.

R. v. H. (J.J.) (Feb. 19, 2015, Ont. S.C.J., Aitken J., File No. 12-SA5106) 119 W.C.B. (2d) 375.

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