R v Delmorone

R. v. Delmorone

[2002] O.J. No. 3988
Ontario Court of Justice — Justice Libman | October 9, 2002

Background

Deny Delmorone was driving his truck through a Toronto intersection when he lost control and struck a pedestrian waiting at a bus stop. Both parties were injured and taken to hospital. Delmorone was on bail for other driving offences at the time, with conditions that prohibited him from driving except for work purposes. When police tried to interview him at the hospital, he declined to speak with them.

Eight days later, two traffic investigators — Sergeant Sorgo and Constable Windmoller — showed up at Delmorone's workplace in Etobicoke. They took him into a vacant office and conducted an eight-minute interview about the accident. The officers wrote down his statement on "Motor Vehicle Collision Field Notes" but made no audio or video recording. The statement contained no signatures, no indication it was read back to Delmorone, no timestamp, and no record of what questions were asked. After taking the statement, they arrested him for breach of bail and dangerous driving causing bodily harm.

Issues

1. Was Delmorone's statement to police voluntary and therefore admissible as evidence?
2. What impact does the failure to record police interviews have on the voluntariness analysis?

The Voluntariness Problem

Justice Libman was not impressed with the police work. The officers gave conflicting testimony about what they told Delmorone before taking his statement. Sergeant Sorgo claimed he cautioned Delmorone about the bail breach, but his notes contained nothing about this. Constable Windmoller couldn't recall what was said and had nothing in his notes either.

Delmorone testified that he believed the police just needed to complete their accident report and that he was obligated to cooperate. He thought any trouble would be minor — maybe driving under suspension — and retrieved his bail variation papers from his truck to show he was legally allowed to drive for work. The judge found Delmorone's version more credible, noting that the conversation about his bail variation happened after the statement was taken, suggesting the written statement had nothing to do with the bail charge.

The Recording Failure

Justice Libman devoted significant attention to the officers' failure to record the interview. In 2002, he noted that audio recording was "child's play" and that police had no excuse for not creating an independent record. He referenced multiple commission reports, including the Kaufman Report on Guy Paul Morin and the Martin Committee recommendations, all emphasizing the critical importance of recording police statements.

The judge was particularly critical given that these were specialized traffic investigators with sophisticated equipment for accident reconstruction, yet they couldn't be bothered to bring a simple tape recorder when interviewing suspects. He drew an adverse inference, concluding that the police deliberately avoided recording because "they did not wish such a reliable and independent account to be made available for subsequent scrutiny."

Key Takeaway

Police failure to record statements can be fatal to the Crown's case, especially when officers give conflicting testimony about what was said.

This case shows that courts will scrutinize unrecorded police statements very carefully. If you're facing charges based on an unrecorded statement, examine whether the police version of events makes sense and whether there are any inconsistencies in their testimony about the circumstances.