"Our conclusion should not be construed as a condonation of physical assault as a legitimate means of persuasion"

R. v. Pappas, 2012 ABCA 221 is a somewhat surprising decision of the Alberta Court of Appeal holding that physical contact by the police of a person in custody under questioning does not lead to statements made being involuntary.  The Court writes:

 

 

B.        Physical force applied to the appellant by the police

 

[34]           The appellant submits the trial judge misapprehended the evidence by characterizing the evidence of physical contact between Detective Brydges and Pappas as mere “body language.” The appellant contends that the physical contact was more than this, and consisted of the continuous poking of the appellant’s leg during the aggressive phase of the interview, as well as a shake of the appellant’s body when the appellant was looking away.

 

[35]           The appellant argues, further, that the detective’s conduct “took on the character of assaulting a detainee”, and that the trial judge’s minimization of the police conduct demonstrated a further misapprehension of the evidence – resulting in a failure to assess a critical element of oppression in determining the voluntariness of the confession. This line of argument was amplified during oral argument to assert that the physical contact to gain the appellant’s attention during his questioning interfered with his constitutional right to remain silent. The appellant submitted that the poking and touching were uninvited, and that he did not consent to either. This constant physical contact, it was said, was designed to make it difficult, if not impossible, for the appellant to ignore the questions and to escape the relentless onslaught of the interrogator.

 

(i)         Body language

 

[36]           The appellant submits the trial judge misapprehended the evidence by characterizing the  physical contact as mere “body language.” He correctly points out that the trial judge discussed the physical contact in these terms. She stated in her ruling (transcript at 343):

 

[Defence counsel] also encourages the Court to look at the body language displayed by the detective. It was after the dinner break that Detective Brydges became more forceful in presenting all of the evidence which the police were collecting with respect to this investigation. Defence points out that over the half hour or so before Mr. Pappas confessed, the officer moved closer to Mr. Pappas in the interview room. He also tapped Mr. Pappas on the leg from time to time in order to get his attention when he thought that Mr. Pappas was not fully listening to him. Defence counsel suggests this body language and the movement of the officer closer to Mr. Pappas as the interview continued was oppressive conduct.

 

[37]           We agree with the appellant that the physical touching in this case goes beyond mere “body language”. However, we do not fault the trial judge for discussing the physical contact using this terminology, because that was how the matter was put to her by the defence. In defence counsel’s submissions during the voir dire regarding oppression and the physical contact, counsel argued, at transcript 321-2:

 

 

The next area that I would like to deal with in terms of oppression is the body language. You’ll recall in my cross-examination and from looking at the video that initially 30 Detective Brydges was sitting some three, four feet away from Pappas. You’ll recall that as we watched the video and watched the conversation that went on from page 62 to page 83 of the transcript, that as that went on, Detective Brydges’ chair moved ever closer to where Pappas was. He moved in on at least three different occasions, ultimately getting to the point where he was, I think in his words, a foot to a foot and a half away from Pappas.

...

 

He’s got the table in front of him, and he’s got Detective Brydges moving ever closer, beginning to tap him on the leg to keep his attention. This is, with respect, pressing and persistent of the first order, and the effect of body language, in my humble submission, cannot be underestimated.

 

[38]           Thus, the trial judge did not overlook the physical contact, nor did she attempt to minimize it through her use of the term “body language”. She simply responded to the defence’s position regarding the physical contact in the terms used by the defence.

 

(ii)        Degree of physical contact and its effect on the right to remain silent

 

[39]           In Oickle, the Supreme Court commented that it was obvious that “any confession that is the product of outright violence is involuntary and unreliable, and therefore inadmissible” (para 53). In this case, the appellant acknowledges that Brydges did not use “violent” physical force in the interrogation. Rather, he submits that Brydges used a lesser form of physical force that constituted a continuous series of assaults upon the appellant’s person. The appellant argues that these assaults created oppressive circumstances which, together with the persistent and relentless interrogation, broke his will so that he was induced to make an involuntary confession. He submits, as well, that his right to remain silent was effectively overcome by the physical contact so that he could not ignore the questions or otherwise be inattentive to them.

 

 

[40]           As the trial judge pointed out, the Supreme Court has held that the tests for voluntariness and the right to remain silent are “functionally equivalent”: Singh at paras 8 and 25. Accordingly, if the appellant’s confession was given voluntarily, his right to remain silent was not breached. Furthermore, the fact that the appellant told Brydges on three occasions that he did not wish to answer questions is not determinative. In Singh, the Supreme Court upheld the finding of the lower courts that police are not precluded from using a “legitimate technique of persuasion” to encourage a detainee to break his silence, even after his right to silence has been asserted (para 20). In Singh, the accused’s confession was found to be voluntary despite the fact that the investigating officer continued to speak with him after he had advised the officer, several times, that he was unwilling to talk.

 

[41]           In this case, Pappas was in a vulnerable position while he was being questioned. He was being detained by the police and could not leave the interview room. The appellant had also spent an hour with his lawyer, before the questioning began, and it is evident he had been advised of his right to remain silent. In these circumstances, the relevant question is whether the persistent questioning and touching of the appellant’s body by the police officer overbore Pappas’s ability to exercise his free will, and deprived him of a meaningful choice as to whether or not to speak to the police.

 

[42]           Here the trial judge heard Brydges’ evidence and watched the video of the interview twice. She concluded that the confession was voluntary, because the conduct of the police did not exceed the bounds of reasonable persuasion, and that the appellant had chosen, through the exercise of an operating mind, to speak to the police. We have also viewed the video. We are not persuaded the trial judge erred in her assessment of the police conduct and the voluntariness of the confession. Detective Brydges did place his hand upon the wrist, knee and thigh of the appellant from time to time during the questioning. The touching, for the most part, was properly characterized by both defence counsel at trial, and by the trial judge, as “tapping”, in an apparent effort to concentrate the appellant’s attention, and in some instances as a seeming expression of the officer’s concern. The appellant showed no signs of discomfort with the touching; he made no attempt to push the detective’s hand away, nor did he ask that the touching cease. From an objective standpoint, the touching was not offensive nor intimidating, and the appellant did not give evidence of any subjective feelings to the contrary. The touching could properly be described as conversational touching, which in ordinary human discourse would not be characterized as an assault. Each case will, of course, be fact-specific, and the degree of any touching and the reaction to it will be relevant. Our conclusion should not be construed as a condonation of physical assault as a legitimate means of persuasion.