ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
DWUMO AMANKWAAH
Before Justice Christine Mainville
Heard on January 13-17, 2025
Reasons on Voluntariness released on January 23, 2025
Sandra Duffey..................................................................................... counsel for the Crown
Ben ElzingaCheng........................................................................ counsel for the accused
Mainville J.:
1Mr. Amankwaah is charged with attempt murder, assault with a weapon, and fail to comply with probation in relation to a stabbing that occurred on February 9, 2024.
2The police arrested and interviewed him the next day in relation to these events. He denied being involved, telling the police they had the wrong guy. He did however answer certain questions and made utterances the Crown now seeks to rely on.
3These utterances given to a person in authority are presumptively inadmissible. Before admitting them in evidence, the confessions rule requires the Crown to prove beyond a reasonable doubt that they were made voluntarily. I must assess whether the accused had a meaningful choice to give a statement and whether his will was overborne. The onus on the Crown is a high one.
4The Crown argues that it has discharged its burden to prove that Mr. Amankwaah’s statement to the police was provided freely and voluntarily.
5The defence challenges the voluntariness of this statement, pointing to the entirety of the circumstances in which Mr. Amankwaah found himself. In particular, it points to the fact that force was applied to Mr. Amankwaah during his arrest, and that he was interviewed by the same officers who participated in this arrest and application of force.
6Specifically, D/C Rohrbach tackled Mr. Amankwaah to the ground upon encountering him, to ensure police safety and effect the arrest. His partner D/C Chen was also involved in this arrest and led the questioning of Mr. Amankwaah. D/C Rohrbach assisted D/C Chen in conducting the interview, including some of the questioning.
7The defence concedes that other than this use of force, Mr. Amankwaah was not assaulted or threatened. No promises were made, and no inducements were offered in exchange for a statement or his cooperation. He had the opportunity to speak to duty counsel prior to the interview, and the police made some efforts to reach who they understood to be his counsel of choice. Mr. Amankwaah indicated he was satisfied with the advice he had received. The defence acknowledges that the police did not treat him poorly. It also concedes that nothing occurred during Mr. Amankwaah’s transport to the police station (by other officers) or his booking that would raise a doubt regarding the voluntariness of his subsequent statement to the police.
8Mr. Amankwaah was arrested around 7 pm on February 10, 2024, and read his rights to counsel shortly thereafter. He was also cautioned regarding his right to silence at this time. The police interview lasted just short of 30 minutes, from 9:26 to 9:55 pm.
9Over the course of the interview, Mr. Amankwaah did advise the officers approximately six times that he did not wish to make a statement or say anything further, declined twice to look at anything further, and asked approximately four times to return to his cell. The defence however recognizes that, as per R. v. Singh, 2007 SCC 48, this does not in and of itself render the statement involuntary. It does however form part of the overall circumstances I must consider in deciding whether the statement was made voluntarily: Singh, at para. 53.
10The defence does not argue that there was excessive use of force. It acknowledges that the manner of arrest may have been appropriate having regard to officer and public safety. I agree with this assessment. The force used to arrest the accused in this case was justified, and not excessive. The application of force was not gratuitous, nor was it an uncontrolled application of force that would be expected to cause pain or injury. It was what was needed to bring Mr. Amankwaah to the ground promptly to conduct the arrest and ensure officer safety, given the possible presence of a weapon, in particular a knife.
11The defence also acknowledges that even excessive force does not necessarily render a statement involuntary. Again, I must assess all the circumstances in determining the voluntariness of a statement made to authority figures.
12I was not provided with any caselaw where the issue of the same police officer being both interviewer and arresting officer was raised. I nevertheless accept that in some circumstances where the police resort to force to effect an arrest, the arresting officer later participating in the arrestee’s interview could be cause for concern in the voluntariness analysis – especially where the officer does not address that occurrence directly with the suspect after the fact, as was the case here.
13In this case, D/C Rorhback explained that though he does not believe he turned his mind to this at the time, his subsequent interactions with the accused – parading him, bringing him from the cells to the interview room, and during the interview – were professional. He did not engage with him in the same manner as when he took him down. He effectively changed hats after the arrest and acted non-aggressively with Mr. Amankwaah from that point on. Indeed, D/C Rohrbach perceived their subsequent interactions to be very light-handed in terms of physical control, and felt there was a different relationship between them. During the interview, he perceived Mr. Amankwaah to be laid back or relaxed in his chair, and never had the impression that he felt intimidated by him or D/C Chen.
14While I must consider Mr. Amankwaah’s perception and feelings, rather than those of the police, D/C Rohrbach’s account of their interactions following the arrest is borne out by the video and audio recording of the interview.
15In R. v. Sabri, (2002) 2002 CanLII 44974 (ON CA), 166 C.C.C. (3d) 179, at para. 12, the Court deemed that statements made by the accused to the police were involuntary as a result of the accused having been assaulted by one of the officers. The fact that some time had passed between the assault and the impugned statements did not serve to dissociate these and render the later statements voluntary.
16The circumstances in that case however were very different than what took place here. In Sabri, the assault was a gratuitous one that took place after the accused was already in police custody. It did not relate to what could be characterized as proper police procedure in executing an arrest. The use of gratuitous violence against a prisoner by the police, once in their custody, could certainly incite fear of prejudice: Sabri, at para. 19. By contrast, the application of force as necessary to effect an arrest would generally be perceived as just that: what was necessary for the police to execute their duties. It would not signal to a suspect that the police may resort to gratuitous violence if he does not provide a statement or otherwise comply, especially in circumstances where the police subsequently act in an unaggressive manner, as I accept they did here.
17Moreover, a key part of the analysis in Sabri was that the officer had denied assaulting the accused. In finding that the accused was in fact assaulted, the officer’s credibility was entirely undermined. This was significant, in particular in the context of unrecorded interactions with the accused and a first statement that was not the subject of a recording: see Sabri, at paras. 16-18.
18Furthermore, in the present case, there was no reference to giving a statement or cooperating with the police at the time of the tackle (only reference to his right not to make any such statement), and no reference to the arrest or earlier tackle throughout the duration of the questioning. This serves to further distance the application of force from the accused’s questioning and related utterances.
19The defence also argued that the analysis should account for the fact that Mr. Amankwaah is a Black man from the Jane and Finch area of Toronto in police custody, and that that would inform his perception of whether he has any choice but to cooperate and provide a statement. He points to the fact that Mr. Amankwaah was fully compliant with the police from the time of his arrest.
20I acknowledge that in certain circumstances, being a Black man interacting with the police may give a suspect more cause for concern and inform that person’s view of whether he has a real choice in speaking to the police. But I have no indication that that was the case here, and I have not been pointed to any jurisprudence suggesting that that can be inferred in any case: see, for e.g. R. v. Blake, 2024 ONSC 3309, at paras. 30-31. This is unlike youth or accused persons with mental illnesses or disabilities, who – based on empirical data – present a much greater risk of falsely confessing: see R. v. Hart, 2014 SCC 52, at para. 103.
21While the accused in the present case was taking medication for a mental illness, the police obtained confirmation prior to starting the interview that he had recently received his medication. The defence does not raise mental illness as a particular concern in the present analysis.
22In any event, and while I consider the accused’s relevant individual characteristics in the analysis, the above factors would not in themselves render a statement involuntary. I must instead consider all relevant circumstances.
23The video-interview in this case makes plain that Mr. Amankwaah was not intimidated, pressured or coerced into making a statement and that he voluntarily chose to say the things he said.
24As the Crown pointed out, from the very beginning of the interview, Mr. Amankwaah made clear what his position was: the police had the wrong man. He wanted to convey this to the police and was in my view eager to provide them with at least some information that he believed might exculpate him.
25After he was again cautioned and confirmed that he had spoken with duty counsel and was satisfied with the advice he had received, Mr. Amankwaah is asked if he wants a tissue or napkin. He declines, stating he is fine.
26As soon as he is told he has an opportunity to tell them why they have the wrong person, as he had alluded to during the reading of the caution, Mr. Amankwaah responds. When he is confronted with the fact that others have implicated him, he responds, explaining how he could not be the person they are looking for. It is not until several clarifying and probing questions are asked and answered that Mr. Amankwaah first indicates that he does not want to make a statement.
27Officer Chen proceeds to explain that they are not here to force him to make a statement. Mr. Amankwaah appears to understand this, responding “Yeah, and I’m not talking here”. He is told that he can just listen.
28As soon as the officer starts asking questions again about his daily activities, however, Mr. Amankwaah responds. He proceeds to answer all the questions asked of him, before starting to ask questions of his own. He looks at photos shown to him, and comments on them unprompted by any questioning.
29When he reverts back to saying he does not want to make any statements and he is tired of this, the officer reiterates that he can just listen and doesn’t have to say anything. Mr. Amankwaah indicates he doesn’t want to hear this anymore and proceeds to claim his innocence. The officer then raises the prospect of DNA on his clothing, and Mr. Amankwaah immediately begins to engage again.
30Mr. Amankwaah then demonstrates his understanding of his right to remain silent when he questions why the officer is still asking him questions, stating “I don’t have to answer any questions”. The officer again reiterates that indeed he doesn’t, but the police can ask. Mr. Amankwaah characterizes the questioning as “annoying”.
31After Mr. Amankwaah again reiterates that he doesn’t want to see any other pictures, the officer mentions that they have information that he went down to the laundry room. Mr. Amankwaah immediately asks to see that, stating “show me, show me”. He then comments on the surveillance pictures shown to him.
32When Mr. Amankwaah then returns to saying he is done answering questions, the officer reiterates once again that he doesn’t have to answer, then states that Mr. Amankwaah has told him his story, so he now wants to show him what the police have. Mr. Amankwaah acquiesces and proceeds to comment on what is shown to him.
33He finally becomes a bit more insistent about returning to his cell and not wanting to know about these things anymore. The officer asks him to hear him out and states “Don’t talk, that’s fine.” Mr. Amankwaah eventually begins interacting with the officers again, making comments and asking questions. This continues until the officers wrap up the questioning in answer to Mr. Amankwaah reiterating that he wants to go to his cell and no longer answer questions.
34Certainly, persistence in questioning over the accused’s repeated objections is a relevant factor to take into account in the contextual analysis of voluntariness: Singh, at paras. 53-54. But the ultimate question is “whether the accused exercised free will by choosing to make a statement”: Singh, at para. 53; R. v. Oickle, 2000 SCC 38, at para. 57.
35Mr. Amankwaah repeatedly evidenced equivocation as to whether he wanted to speak to the police or not. This is not a case where the police “broke” a suspect who was otherwise remaining silent, and who gave up after repeated or prolonged questioning. Rather than persistently maintaining that he did not want to talk, the accused talked and intermittently stated that he no longer wanted to talk.
36This case can be distinguished from cases such as R. v. El Hariti and Haddouche, 2017 ONSC 3144, at paras. 6, 11-17, 34-35, where there was a clear and unequivocal persistence in remaining silent.
37Mr. Amankwaah was talkative from the outset. He did not succumb to pressure, fear, intimidation or any other form of oppression. Rather, he went back and forth between answering questions and deciding that he had had enough. He appeared confident in the face of police questioning, and firmly put forward his position.
38When Mr. Amankwaah did exercise his right to remain silent, the police generally reiterated that he did not have to answer their questions, but they were going to ask them. This caution was also relayed to Mr. Amankwaah at the scene of his arrest and at the outset of the interview. Mr. Amankwaah made clear he understood.
39In the circumstances of this case, Mr. Amankwaah’s temporary unwillingness to answer certain questions at certain points in the interview did not amount to a denial of a meaningful choice to remain silent.
40Altogether, the circumstances surrounding the statements made by Mr. Amankwaah were not such as to raise a doubt as to their voluntariness. The statements made over the course of his videotaped interview with the police are admissible in evidence.
Released: January 23, 2025
Signed: Justice C. Mainville