Voir dire on admissibility of statement. Two accused and two complainants were gay men who had engaged in consensual sexual acts. Accused were HIV positive. Both accused were charged with two counts of aggravated sexual assault. At issue at trial would be whether accused’s disclosed their HIV positive status to complainants in advance; and whether complainants would have participated in unprotected sexual acts had they been aware of accused’s’ status. Ottawa police received complaint regarding one accused and decision was made to arrest him. Investigating sergeant was also aware of warrant for arrest of accused in Waterloo regarding three counts of aggravated sexual assault. Feeney warrant was obtained and officers attended accused’s residence but he was not at home. Sergeant called accused on his cellphone and she requested meeting. Accused asked if he was going to be arrested. Officer said no fearing accused would not show up if he knew truth. Meeting was arranged at doughnut shop. Accused arrived in vehicle and two police vehicles immediately blocked its passage. Sergeant, along with several officers from tactical unit, conducted “high risk takedown” and accused was informed he was under arrest for one count of aggravated sexual assault and one count of breach of probation. She said accused was told of warrant for his arrest in Waterloo for three counts of aggravated sexual assault. Sergeant then proceeded to deliver rights to counsel and caution in usual manner. Accused was transported to police station and placed in holding cell. At bail court, accused was remanded in custody. Remand warrant issued on court appearance directed police officers to deliver accused to regional detention centre. Instead, he was escorted back to police station and placed in holding cell. Accused was interviewed by police. During interview, accused declined to answer number of questions, making reference to legal advice he had received. Sergeant continued to ask questions. Statement not admissible at trial. Officer’s comments regarding exercising right to silence was improper. Officers’ handling of missing minute from beginning of videotape of interview was improper. Accused was not provided with sufficient information so that he could make informed decision on waiving his rights to counsel. Brief factual information could easily have been provided as officer had warrant. Accused declined to respond to officer. Returning person in custody to police station was unacceptable. Had officers complied with remand warrant, as they were required to do, interview would not have occurred. Crown had not proven statement was voluntary. Breach of remand warrant alone negated voluntariness.
R. v. Boone
(Jan. 5, 2012, Ont. S.C.J., Gordon J., File No. 7191) 99 W.C.B. (2d) 458 (15 pp.).