a quid pro quo offered by the interviewing officer and by failing to
consider whether, in the face of those threats and inducements,
the Crown had satisfied its onus of proving beyond a reasonable
doubt that the appellant’s statement was voluntary.
[ 13] As was the case in R. v. Wabason, in our view, the trial
judge “confine[d] too narrowly the notion of inducements or
threats leading to a statement”: at para. 15.
[ 14] Based on our review of the record, the interviewing
officer’s statements to the appellant during the interview went
well beyond saying the appellant might adopt a trial strategy of
not testifying and crossed the line into undermining the legal
advice the appellant had received to remain silent. In particular,
at least one of the officer’s statements asserted more generally
that the appellant may never get an opportunity to tell his side of
the story. More significantly, the officer’s statements suggested
the appellant would not be believed if he did not tell his side of
the story to the police and further, that a trial court would see
him, on video, refusing to comment.
[ 15] For example, the interviewing officer made the following
statements to the appellant prior to his inculpatory statement:
Officer: If your mom says, this is what you should do, your lawyer says this is
what you should do, I say, this is what you should do. You gotta take what
everybody says and decide for yourself, right? You’re a 19 year old man, right?
Officer: . . . people will judge you on how you are in here, right?
. ;;.;;.;;. ;;.
Officer: So when that goes and gets played in court and you don’t get a-, say,
you don’t get an opportunity to ever say your side of the story and you get
convicted of murder, right, and the jury gets to watch, and the judge gets to
watch . . .
[Following an assertion by the appellant that he did not stab anyone and “had
nothing to do with this.”]
Officer: If you didn’t do any of that stuff, right? . . . Then you should feel free
in telling me what you did last night, where you were, who you were with.
Appellant: I’d rather not comment on all that though.
Officer: Well, there you go. So then no one’s gonna believe you, right?
Officer: So if you, if you can tell me how you cut your finger and it’s got
nothing to do with the stabbing, why wouldn’t you tell me? You got nothing to
lose and everything to gain, right?