R v Moore-McFarlane

R. v. Moore-McFarlane and Bogel

2001 CanLII 6363 (ON CA)
Court of Appeal for Ontario — Charron, Sharpe and Simmons JJ.A. | November 30, 2001

Background

Gregory Moore-McFarlane, a 19-year-old with no criminal record, and Paul Bogel were convicted of armed robbery at a Toronto convenience store on March 26, 1997. McFarlane was caught running from the scene with lottery tickets similar to those stolen, while Bogel was found in the getaway van after a car chase that ended when police pepper-sprayed him during arrest. Both men allegedly confessed to police, and these confessions became the Crown's main evidence at trial.

But the confessions came with serious problems. McFarlane claimed police stripped him naked and beat him during questioning. Bogel said officers denied his repeated requests for a lawyer and questioned him while he was still suffering effects from pepper spray. Police failed to videotape any of the interrogations and mysteriously lost the arrest records that would have confirmed both men had waived their right to counsel.

Issues

1. Were the alleged confessions voluntary and therefore admissible as evidence?
2. Did the trial judge properly conduct the challenge-for-cause process regarding racial bias?

The Voluntariness Test Fails

The Court of Appeal systematically demolished the trial judge's decision to admit the confessions. Under the confessions rule, the Crown must prove beyond a reasonable doubt that any statement was given voluntarily — without fear, threat, or promise of advantage, and with an operating mind.

The evidence revealed a pattern of troubling police conduct. McFarlane testified he was interrogated while completely naked after a strip search, with officers allegedly feeding him information until he "got the story straight" on his third recorded attempt. Even the Crown's own witnesses couldn't agree whether he was clothed — some said underwear and socks, others said "partially clothed." Meanwhile, Bogel was questioned immediately after being pepper-sprayed, while still experiencing pain and vision problems, and after police allegedly struck him in the police car.

The court found the police deliberately chose not to record most of the interrogations despite having equipment available. When arrest records that would have confirmed the suspects waived their right to counsel mysteriously disappeared, and police notes were later altered to match witness descriptions, the court concluded the Crown had failed to meet its heavy burden of proving voluntariness.

Key Takeaway

Police misconduct during interrogation can render even detailed confessions completely inadmissible, regardless of their apparent reliability.

This case shows that courts will scrutinize not just what suspects said, but the entire circumstances surrounding how those statements were obtained. When police fail to create proper records and credible evidence suggests coercion, even strong-looking confessions can be thrown out entirely.