Wednesday, 7 June 2017

Right to remain silent when you are questioned by police     
In free democratic nations, the right to remain silent is paramount. There are no exceptions permitted. However, there are times when police investigators try to get around the accused’s right to remain silent.       

Many years ago when I was practicing law, a friend of mine came to my home and complained that he was arrested for some alleged crime they said he had committed. When he tried to exercise his right to remain silent, they took him to another police station which had been closed for over a year. When they asked him again to admit that he committed the crime, he again refused to give them any information. One of the officers pulled out his revolver and shoved the barrel of the gun into his mouth. Then he cocked the gun and said, “Don’t move an inch otherwise the gun may go off. Then they asked him again the same question. He signalled that he would confess and confess he did. Then he was charged with the crime.

My next door neighbour was at that time, a member of the Ontario Legislature and the chairman of the Legislative Justice Committee. When he heard what my friend had told him, he asked both me and my friend to go the Ontario Legislative Building and to a specific room by ten in the morning. When we entered the room, my friend and I saw the solicitor general of Ontario along with his secretary who would be taking notes and my neighbour in the room.

My friend told his story and the solicitor general told us that he would have his complaint investigated. The officer who did the questioning denied having shoved a pistol into the mouth of their suspect but they weren’t believed since they chose to question my friend in a vacant building where no one would see what they were doing to him instead of questioning him in their detachment. This left little credence in the police officer’s denials.

Later my friend was notified in writing by the solicitor general that his confession would not be used in court and that the two officers were severely chastised and taken off the case.

Many years ago, Toronto police officers who were members of the robbery squad would literally torture their suspects into confessing. Some judges ignored the complaints of the defendants during their trials. Those days are over and long gone.          

Nowadays, this kind of questioning isn’t happening any longer anywhere in Canada since the questioning of suspects are generally conducted in rooms where the questionings are video-taped.          

However, there are ways, in which suspects can be tricked into confessing which is legitimate providing that the trick used is not done by breaking the law.

Years ago, police investigators in Toronto handed a copy of a confession signed by the suspect’s partner in crime to the man they were questioning. In the confession, the suspect’s partner stated that both he and the suspect committed the crime. One of the officers said to their suspect. “Now if you confess to us your part in the crime, we won’t have to bring your partner into court to testify against you because if he testifies against you, he will be called a rat and may be killed in prison.”  Their suspect confessed.

It was later determined in court that the so-called written confession was actually written by the police and signed by the police. The judge said that forged documents used to elicit a confession should never be used to elicit a confession of any suspect who is exercising his right to remain silent. Hence, the suspect’s case was dismissed.

I am now going to give you a really interesting case where the confession was obtained from a suspect who repeatedly insisted in exercising his right to remain silent. The method to obtain that confession by the police was extremely unique and done in a roundabout way.

Mr. Brett Dunstan was charged with multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime after the police discovered significant amounts of various drugs and approximately $100,000 in cash after responding to an anonymous call reporting a break-in at his house. 

The trial on these charges was scheduled to take place in December of 2013.

Before the trial, there was a voir dire hearing (used to determine legitimacy of evidence) for the purpose of determining the legitimacy of Dunstan’s confession. The hearing was held on June 17th 2013. The two issues raised on this voir dire with respect to the voluntariness of the statement focussed on the following:

(1)    Was Mr. Dunstan’s statement the result of an improper inducement by the police, in particular, an inference that his information was needed in order to improve his chances of obtaining bail?

(2)     What is the significance of the fact that prior to giving the statement Mr. Dunstan was not advised of his right to remain silent and that any statement he made could subsequently be given in evidence?

But first, I will give you the background of his arrest.

 On September 20th, 2011, police attended a residence located on Red Ash Drive in the Town of Markham (just northeast of Toronto) where they located a quantity of controlled drugs (two bags) and cash, which were seized.  At the time of the seizure, there was no one living in the home.  It was owned by the defendant, Brett Dunstan and his mother. 

The Crown (prosecutor) had later relied on the fact that Mr. Dunstan had denied the presence of heroin in the house as evidence that he was aware of what drugs were being kept in his home. At the time of the search of the house, Detective Torres testified that he found two small baggies of light brown powder which he believed to be heroin.  All of the drug samples were sent to a lab for analysis, but it took a couple of months for the results to be obtained.  In the meantime, one of the offences Mr. Dunstan was charged with was the possession for the purpose of trafficking of heroin.  In the end it turned out that the light brown powder was not heroin subsequently, the charge of being in possession of heroin for the purpose of trafficking was an invalid charge.

The police were subsequently able to speak with Mr. Dunstan’s lawyer and learned that Mr. Dunstan was visiting the Philippines.  As a result of discussions with his legal counsel Mr. Dunstan agreed to surrender himself at the police station at 7:00 a.m. on the morning of September 27, 2011.  Following his arrival at the police station Mr. Dunstan was arrested by Detective Torres.  He was taken to the booking desk in the police station.  The evidence of Detective Torres is that at the booking station he had Mr. Dunstan read a notice which was posted on the booking desk.  This notice advised him of his Section 10(b) Charter rights that he had the right to retain and instruct counsel, as well as the right to telephone a lawyer if he wished to do so.    

Many years ago, I was invited to be a speaker at a law conference held in Ottawa. I expressed my concern that many accused persons have no lawyers or can’t reach them, especially at night so I suggested that Legal Aid provide 24-hour duty counsel so that accused persons can contact a lawyer and ask the lawyer what his or her rights are after being arrested. Three months later, it became the practice in Ontario and later, the procedure became applicable all over Canada.

Following the booking process Mr. Dunstan was taken into an interview room by Detective Torres for the purpose of taking a statement.  It is his statement which became the subject matter of the voir dire.

 Detective Torres acknowledged in his evidence on the voir dire that he did not advise Mr. Dunstan on his right to remain silent nor did he advise him that statements made during the interview could be given in evidence against him at a later time.

Generally police officers carry a card with them that states the following;

“You are charged with (name of crime). Do you wish to say anything in answer to this charge?  You are not obliged to say anything, but whatever you do say may be given in evidence.”

The police caution is in plain language and informs the suspect of his right to remain silent.  Its importance as a factor on the question of voluntariness was recognized in courts in Canada as early as 1949.

The fundamental question is whether a confession of an accused offered in evidence is voluntary.  The mere fact that a warning is given is not necessarily decisive in favour of admissibility, especially if the accused has difficulty understanding what he is being told. However the absence of a warning should not bind the hands of the court so as to compel it to rule out a statement.  All the surrounding circumstances must be investigated and if upon the review, the court is not satisfied of the voluntary nature of the admission, the statement will be rejected. Accordingly, the presence or absence of a warning will be a factor and in many cases, an important one.

After an accused person is placed in detention, the police are in control of that person detained who cannot simply walk away and who is therefore in a more vulnerable position than if he was free. The importance of reaffirming the individual’s right to choose whether to speak to the police is therefore, more significant where the individual is in custody, which occurred in this particular case I am writing about in this article.  

However, there was no evidence presented in the voir dire from which one could draw a firm conclusion that Dunstan didn’t understand that his verbal statement could be used against him at his criminal trial.

The absence of a verbal caution given by Officer Torres was of some concern to the judge.  Initially in his evidence in chief, Detective Torres testified that he did not caution Mr. Dunstan before the interview because he assumed that Dunstan understood his rights when he read them in the booking area.  This, of course, would not be adequate to explain the omission given that the document read by Mr. Dunstan did not include the his rights not to make a statement and that if he did, his statement could be used against him as evidence in court.   

 On cross examination, Torres also suggested that he assumed Mr. Dunstan understood his rights.  However, there is no evidence during the interview or otherwise which would confirm Detective Torres’ assumption on this point.

Even had Dunstan had been informed of his rights, Torres could find a way to trick Dunstan into giving information to Torres that could be damaging to credibility.

In the vast majority of cases, the police will try to convince a suspect that it is in his or her best interest to confess.  Such an inducement becomes improper only when it, whether standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the suspect has been overborne.

Very few confessions are inspired solely by remorse.  Often the motives of an accused are mixed and sometimes include a hope that an early admission may lead to an earlier release or lighter sentence.  If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. 

In some cases, the hope may be self-generated.  If so, it is irrelevant, even if it provides the dominant motive for making the confession.  In such a case, the confession will not have been obtained by anything said or done by a person in authority. 

More commonly, the presence of such a hope will, in part at least, owe its origin to something said or done by such a police officer.  There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur so that they might be able to bring both their interrogation and their detention to an earlier end by confessing to a crime.

 Detective Torres cloaked the rationale for his interview in the need to obtain information for Mr. Dunstan’s bail report.  This is reflected in the opening comment of the interview as follows;   “I’ve just got to go through a few things for your bail report.”

That is the bait that was being dangled by Torres in front of Dunstan. Almost every accused person will jump at the chance of getting bail and do almost anything to get it.

However, it was also clear from early on in the interview that Mr. Dunstan intended to exercise his right to remain silent.  This is reflected in the following discussion which took place immediately following the start of the interview.

OFFICER:  “You’ve been arrested for the possession for the purpose of trafficking, several counts of that, at least four.  Um, fail to comply.  Ah, okay so we’re going to, so ah, you gave the address of ninety-seven Mercer in the Town of Markham, is that where you’re living?”

That question is harmless, What Torres was doing was simply implying that Dunstan had no reason to fear any other questions or statements put to him. (said the spider to the fly)

DUNSTAN: “Ah, I’m just going to choose my right to remain silent.” (The fly saw the spider that was getting ready to pounce on him)

Dustan was smart enough to surmise where that question was heading. If he admitted to living in the house, that would be proof that he had custody of both the drugs and the money found in the house.

OFFICER:  And that’s fine, but I just need to know that for sure.  The house that I went in to last week, you and I both know that’s your house.  Your pictures are on the wall, your property, all your clothing is in that house.  Okay?  Your cars are in the drive, are in the garage.  I mean I spoke to your mom, she said that’s where you live.  I spoke to your ex-girlfriend.  She said that’s where you live.  Know what I’m saying?

DUNSTAN:  I choose, I’m sorry I’m choosing the right to remain silent.

Dustan had by then stated to the officer that he didn’t want to answer any questions. That means that he knew his right to refuse to answer any questions. Even Torres knew that Dunstan knew what his rights were and yet he pressed on with his questions. In doing so, his actions were in fact illegal.

In addition to demonstrating Mr. Dunstan’s intention to remain silent, the last question indicated that from the beginning of the interview, the intention of Detective Torres was to try and obtain incriminating statements from the accused even though Dustan implied that he didn’t want to answer any question by saying to Torres that he wished to be silent.

That kind of conduct on Torres’ part is an abuse of his power as a police officer. At that stage of the interview, Torres should have stopped the questioning immediately. But by being a disreputable police officer, he continued with the questioning. 

OFFICER:  “Okay, so just for your bail hearing; so you live, you live on your own or with your mom?  I need to know this for the bail report, so you can stay with your mom.” 

DUNSTAN:  “With my mom, yeah,”

OFFICER:  “What’s that type of place?”

DUNSTAN:  Industrial place.  “I’m just going to choose, I’m going to choose the right to remain silent.”

OFFICER:  “Yeah, but I need this stuff for your bail report.  You don’t need to tell me anything about what happened in your house or anything like that, but I need stuff about what happened, what you do for a living.”

First of all, he says that he doesn’t need to know what happened in Dustan’s house and in the same sentence he says. “I need stuff about what happened.”

OFFICER:  “This is the stuff that the court is going to want to know for your release if, if you get released.”

I won’t go through all of the interrogation but there is something I want to tell you. The questions that Dustan was being asked by Torres are asked by a probation officer who is directed by the court to interview the suspect to determine if he can be released on bail. But Torres was asking those questions so that he could search other places that Dustan lived in or stayed in so that he could obtain a warrant to also search those places for illicit drugs. But once Dustan began exercising his right to remain silent, Torres abused his role as a police officer and pressed on with the questioning.

Dunstan apologized for choosing his right to remain silent.  At other points during the interview, Mr. Dunstan told the officer that he means no disrespect to the officer by exercising this right.  He was clearly going out of his way not to create any conflict with the officers during the interview.

The statement of interest to the Crown was made within the first eight minutes of the interview.  At that point, the issue of Mr. Dunstan’s bail had been raised four times by Officer Torres, and commented on once by Mr. Dunstan.  Furthermore, the comments made by Detective Torres suggested that the information was needed in connection with his request for bail and from Mr. Dunstan’s perspective he might legitimately be concerned about the effect his refusals to answer would have on his chances for bail.  It is true that on numerous occasions during the questioning Mr. Dunstan exercised his right to remain silent.  However, in exercising this right it would appear that Mr. Dunstan would have to consider what prejudice he was running by refusing to answer the questions.

Even if he answered the questions to his detriment, the court would have refused to accept his statements, no matter how damaging they might have been to him. That is because his answers were obtained illegally.

The judge conducting the voir dire said; “While there was a change of topic that is apparent when Detective Torres started to question Mr. Dunstan about the charges, I do not necessarily agree that there is a clear delineation so that Mr. Dunstan would have understood this line of questioning was unrelated to his bail. The charge related to heroin might well have been considered by Mr. Dunstan to be one of the more serious charges which might have affected his ability to obtain bail. It is at least possible this was a motivation for Mr. Dunstan to try and deny the presence of heroin.  It is interesting to note in this regard that Detective Torres questioned Mr. Dunstan on three occasions in a row about the presence of heroin before he made the comments which are of interest to the Crown.  While it is not directly relevant to the passage in question I note that throughout the balance of the questioning Detective Torres made continuing reference to bail in a way that would lend some credence to the defence position that Mr. Dunstan thought that he was in a “negotiation” for bail.  There is also evidence later on in the transcript of Detective Torres threatening to arrest Mr. Dunstan’s mother for trafficking if he wasn’t cooperative.  This passage is set out below.

OFFICER:  “Im sorry Brett, I just have a question.  I know you don’t want to talk about it, but I have a question that I need to make just to ensure nobody is involved in this.  When we went into that house, and the last thing and I don’t believe it and I need you to tell me, does your mom have anything to do with living there?  I know you’re there and I know your kid’s there.  Your mom’s name is on the legal documents for that house.  Guess what I’m saying is I don’t want to have to arrest your mom for possession for the purpose of trafficking if she’s the owner of that house.  Is her name on the house?  ‘Cause according to this, Gail Dunstan and Brett Dunstan, these are legal documents, this is the lawyer transaction, when you pay the lawyer to do the closing fees for that house, at 76 Red Ash, your mom’s name is on it as well.  So, what that tells me is your mom’s owner.  So, I know you don’t want to talk about it but I think you need to, I think you need to.

DUNSTAN:  I choose my right to remain silent.

The judge said, “ Having reviewed all of the circumstances I have concluded that there was a significant inducement by Detective Torres to get Mr. Dunstan to make incriminating statements.  The quid pro quo offered by Detective Torres was a better opportunity to obtain bail.  Mr. Dunstan was told that the information was required to prepare a report relating to his bail application.  He would properly understand that his refusal to answer questions might negatively affect his changes for bail.  In addition, there was a clear delineation prior to the comment made by the accused that the conversation was shifting to the subject of the alleged offences.  I do not consider there was a clear delineation in this case.”

 It was acknowledged by Detective Torres that no caution was given to Mr. Dunstan at any point prior to or during the interview.  The significance of a caution in the context of determining whether a statement is voluntary was highlighted in the Supreme Court of Canada decision in R. v. Singh 3007.

The notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions.  This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached even before the advent of the Charter  to the presence of the caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention....a common form of the police caution given to a person who has been charged with an offence is the following:

“You are charged with (name of crime) do you wish to say anything in answer to this charge?  You are not obliged to say anything, but whatever you do say may be given in evidence.”

Therefore, the police caution, in plain language, informs the suspect of his right to remain silent.  Its importance as a factor on the question of voluntariness is obvious.

The fundamental question is whether a confession of an accused offered in evidence is voluntary.  The mere fact that a warning was given is not necessarily decisive in favour of admissibility, but on the other hand, the absence of a warning should not bind the hands of the court so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon the review the court is not satisfied of the voluntary nature of the admission, the statement will be rejected.  The  presence or absence of a warning will be a factor and in many cases, and it is an important one.

After the judge who wrote the decision for the Court of Appeal, the two other judges of that court who also were considering Dustan’s appeal, agreed with the decision submitted by the judge who authored the decision.  At Dustan’s new trial, his statements to the officer will not be presented to the court as evidence against him. 

I should point out however, there are times when you should answer questions put to you. For example, if you are asked to explain why you are behind a factory at night and you are there for a legitimate reason, answer his question. If a traffic cop asks you questions with respect to your driving a vehicle, you have to answer his questions but you don’t have to tell him where you are going but you will have to tell him where you came from if there was an accident that occurred somewhere else behind you.

You don’t have to answer any questions at the police station if you are guilty of a crime. If you are innocent, you can answer the questions but I suggest that you first ask the investigator why he is asking the questions so that you can answer in response to what he has told you. 

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