Her Majesty the Queen v. Othman

[Indexed as: R. v. Othman]

Ontario Reports Court of Appeal for Ontario Simmons, Juriansz and Benotto JJ.A. December 24, 2018

144 O.R. (3d) 37 | 2018 ONCA 1073

Case Summary

Criminal law — Defences — Defence of others — Trial judge erring in declining to put defence of others to jury on basis that accused had testified that he stabbed victim to defend himself — Other evidence providing basis for defence to be left to jury.

Criminal law — Evidence — Confessions — Nineteen-year-old accused repeatedly asserted his right to remain silent — Police officer suggesting to accused that he might never get opportunity to tell his side of story and that he would not be believed by jury if he did not tell his story to police — Crown not proving beyond reasonable doubt threats and inducements not overbearing accused's will to remain silent even though immediate trigger for inculpatory statement may have been accused being shown video of his girlfriend disclosing admissions he made to her — Trial judge erring in finding that inculpatory statement was not obtained through threats or inducements — Crown failing to prove beyond reasonable doubt that inculpatory statement was voluntary.

Facts

The accused was convicted of second degree murder. The accused and his friends were asked to leave a large party. A large group from the party followed them out and one of the partygoers, the instigator, sucker-punched one of the accused's friends and then a second friend who tried to intervene. The instigator stabbed the first friend with a 2x2 tree stake. During the following fight, the accused pulled out a pocket knife and fatally stabbed the victim. The accused, who was 19 years old at the time, was interviewed by the police after speaking to a lawyer. He repeatedly asserted his right to silence during the four hours he was questioned. The interviewing officer suggested that he might never get an opportunity to tell his side of the story, and that he would not be believed by a jury if he did not tell his story to the police. The officer then showed him a video of his girlfriend disclosing to the police admissions he allegedly made to her after the stabbing. The accused was clearly affected by the video and made an inculpatory statement. That statement was ruled voluntary and was used to cross-examine the accused at trial. The accused appealed his conviction.

Holding

The appeal should be allowed.

The trial judge was correct that the accused's response of "no comment" did not require the police to end the interview and the accused never requested to be taken back to his cell. However, the trial judge erred in finding that the inculpatory statement was not obtained through threats or inducements. The interviewing officer's statements to the accused undermined the legal advice the accused had received to remain silent. Police assertions to the effect that an accused's credibility is at its highest during a police interview and that a trial court will see and take a negative view of a refusal to speak are legally incorrect and undermine the right to silence. The interviewing officer's comments constituted both a threat and an inducement as they suggested negative legal consequences if the accused failed to speak and positive consequences if he spoke. Although the immediate trigger for the accused's inculpatory statement may have been his despair at seeing the video of his girlfriend, threats and inducements need not be the sole contributing factor in order to render a statement involuntary. The Crown had failed to prove beyond a reasonable doubt that the inculpatory statement was voluntary.

The trial judge erred in declining to leave defence of others to the jury on the basis that the accused had testified that he stabbed the victim for the purpose of defending or protecting himself. There were other aspects of the accused's testimony in-chief and his statement to the police, as well as the testimony of others, that provided a basis for the defence to be left with the jury.

The trial judge's instructions to the jury on self-defence were unbalanced. Not only did the trial judge telegraph to the jury that he did not find the accused's testimony about his own injuries credible, he also failed to refer to evidence that supported the accused's version of events.

A. Facts and Issues

[1] The appellant was found guilty of second degree murder by a jury. The events giving rise to the conviction occurred at and near a backyard house party. The appellant was 19 years old at the time.

[2] It may be unclear whether the appellant and his friends were invited to the party by a guest. What is clear is that they did not know the host and were asked to leave. As they were leaving, one of the partygoers (the "instigator") "sucker-punched" one of the appellant's friends (the "initial victim"). When another of the appellant's friends attempted to intervene, the instigator punched him as well. The intervening friend pushed the instigator to the ground and the appellant and his friends left the backyard. As they were making their way to the street, one member of the appellant's group damaged a car mirror. A group of the partygoers, estimated at between 20 and 70 people, left the house party to confront the appellant's group on the street. The confrontation resulted in violence. Among other things, the instigator struck the initial victim with a 2x2 tree stake. Soon after, the appellant produced a pocket knife and stabbed one of the partygoers (the "victim"), causing his death.

[3] The appellant was arrested later the same day, spoke to a lawyer and was then interviewed by the police. The interview lasted several hours. During this police interview, the appellant admitted that he stabbed the victim. The appellant's statement was ruled voluntary and was used to cross-examine him at trial.

[4] The appellant appeals his conviction and submits that the trial judge erred:

(i) in finding that his statement to the police was voluntary;

(ii) by refusing to charge the jury on the defence of others;

(iii) by giving an unbalanced review of the evidence in his instructions on self-defence; and

(iv) by effectively taking away the defence of provocation from the jury.

[5] For the reasons that follow, we allow the appeal.

B. The Appellant's Statement to the Police

(1) The trial judge's reasons holding the appellant's police statement voluntary

[6] In ruling the appellant's statement voluntary, the trial judge noted that the appellant provided an inculpatory statement hours after repeatedly asserting his right to silence. The trial judge concluded the appellant did so as the result of seeing a video of his girlfriend disclosing to the police inculpatory admissions he allegedly made to her following the stabbing.

[7] The trial judge held that the interviewing police officer had a right to continue questioning the appellant, despite the appellant's assertions of his right to silence, so long as the officer did not offer the appellant a quid pro quo and so long as the appellant's will was not overborne by the officer such that an atmosphere of oppression resulted.

[8] The trial judge found there was no evidence that the interviewing officer or any other officer made any threats or offered any inducements to the appellant in exchange for a statement. The trial judge concluded that the appellant's will was not overborne and that no quid pro quo was offered; rather, "there was merely [the appellant's] despair on seeing his girlfriend disclose what [the appellant] allegedly said to her concerning the fatal stabbing".

[9] The trial judge also rejected a defence argument that attempts by the interviewing officer to undermine the legal advice given to the appellant and suggestions that the appellant might not get an opportunity to testify vitiated the voluntariness of the statement. In the trial judge's view, the appellant made it clear during the interview why he decided to give a statement despite his earlier assertions of his right to silence. The appellant's attitude changed dramatically after he saw his girlfriend's statement. On seeing the video, he said, "I can't believe she just did that." He later told the interviewing officer, "[t]he minute you showed the video, I cracked". Thus, in the trial judge's view, there was no evidence of threats or inducements and the sole trigger for the appellant's inculpatory statement was seeing his girlfriend's incriminating video statement.

(2) The Crown's position on appeal

[10] On appeal, the Crown submits that, in determining voluntariness, the trial judge applied the correct legal principles and properly considered the entire context of the interview. The interviewing officer's statement, for example, that the appellant's trial strategy might be that he would not testify, was a fair and accurate characterization of what could happen at trial. The Crown asserts that the trial judge's factual finding that the appellant chose to speak as a result of being confronted, entirely properly, with the truth as conveyed to the police by his girlfriend, is entitled to deference.

(3) Standard of review

[11] Whether a confession is voluntary is a question of mixed fact and law. If the trial judge considered all the relevant circumstances, a finding of voluntariness is essentially a factual one that should only be interfered with if there is some palpable and overriding error which impacted the trial judge's assessment of the facts: R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, at paras. 22, 71; R. v. Spencer, [2007] 1 S.C.R. 500, 2007 SCC 11, at paras. 16-17; R. v. Wabason, [2018] O.J. No. 1012, 2018 ONCA 187, at para. 8.

(4) Discussion

[12] We accept the appellant's submission that the trial judge erred by failing to identify improper threats, inducements and 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:

19:07

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 . . .

19:53

[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?

19:57–58

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?

Appellant: I've been advised not to, sir.

Officer: Well, trying, trying to open your eyes to think of other possibilities, right, cause it's your decision, right? It's not my decision whether you give your side, it's not anybody else's decision, it's yours, right? And I'm telling you, as a normal person, nobody's gonna believe that-, what happened to your finger unless you tell the story. If you decide not to, no one's gonna believe it came from anything other than you stabbing somebody.

20:00

Officer: So then it comes down to credibility, right? So if you sit here and say that it didn't happen at this party, when this guy got stabbed, if that's not when it happened and then it gets proven that it is and then you get up and you say, well, now, I'm gonna tell my story. Now's the time and place to tell my story. How many people are gonna believe you then versus who believe you now when it's the time, right?

21:54

[The appellant had been informed that he had admitted the stabbing to his girlfriend and that she had given a statement to the police. The appellant had denied admitting anything, denied doing anything and asserted he would say nothing.]

Officer: That's the attitude you're showing to the victim's family, right? They're gonna watch this come court.

Officer: And a jury's gonna watch this come court.

Officer: And they're gonna see you.

(Emphasis added)

[16] As noted in R. v. Van Wyk, [1999] O.J. No. 3515, 104 O.T.C. 161 (S.C.J.), at paras. 160-168, police assertions to the effect that an accused's credibility is at its highest during a police interview and that a trial court will see and take a negative view of a refusal to speak are legally incorrect and undermine the accused's right to silence.

[17] In our view, the interviewing officer's comments, as set out above, constituted both a threat and an inducement as they suggested negative legal consequences if the appellant failed to speak and positive consequences if he spoke.

[18] Moreover, the combined suggestion that, despite legal advice, the 19-year-old appellant should make his own decision about whether to speak and that he would not be believed if he did not speak during the police interview, improperly undermined the advice the appellant received from his lawyer.

[19] We conclude that the trial judge erred in failing to recognize that the interviewing officer's comments amounted to both threats and inducements.

[20] Further, once the appellant had been told that his girlfriend had given an incriminating statement, the interviewing officer's prior assertion that the trial court would see the appellant refusing to comment became an implicit quid pro quo -- the appellant would suffer negative legal consequences if he maintained his position that he had done nothing wrong and did not want to comment and he would be viewed in a better light by the judge and jury if he accepted responsibility.

[21] In these circumstances, the trial judge should have considered whether the officer's threats and inducements "standing alone or in combination with other factors, [were] strong enough to raise a reasonable doubt about whether the will of the subject [was] overborne": Wabason, at para. 19, citing Oickle, at para. 57. Further, the appellant's age and the overall context of the interview are relevant considerations to this inquiry: Wabason, at para. 20, citing Oickle, at para. 42.

[22] Here, the appellant was a 19-year-old young man at the time of his police interview and had little prior experience in dealing with the police. Before providing an inculpatory statement at 22:56 on October 18, 2014, he had been in a police interview room since 17:16 and the formal interview had begun four hours earlier, at 18:54. During the course of the interview, which continued with some interruptions while the interviewing officer obtained additional information including the fact of the appellant's girlfriend's statement to the police, the appellant said "no comment" in response to the officer's questions on more than 100 occasions.

[23] In the context of this case, we agree that the appellant's statements "no comment" did not require the police to cease questioning. Although the appellant repeatedly said "no comment", he never asked to terminate the interview or to return to his cell. Part way through the interview, in addition to saying "no comment", he also began to claim he had nothing to do with the incident. Considered in context, his assertions that he did not wish to comment were somewhat equivocal, as he seemed content to learn what information the police had, which the officer disclosed piecemeal as the interview continued.

[24] However, as we have said, in our view, various statements by the interviewing officer amounted to improper threats and inducements. Although we acknowledge that the immediate trigger for the appellant's inculpatory statement may have been the appellant's despair at seeing his girlfriend's incriminating video statement, to render a statement involuntary, threats and inducements need not be the sole contributing factor: Oickle, at para. 57.

[25] Here, the threats and inducements constituted an improper attempt to undermine the legal advice the appellant had received and amounted to an implicit quid pro quo. In all the circumstances, we are not satisfied that the Crown has satisfied its burden to prove beyond a reasonable doubt that the interviewing officer's threats and inducements did not have a coercive effect on the appellant and did not contribute to his will to remain silent being overborne. In our view, the Crown failed to prove that the appellant's statement was voluntary beyond a reasonable doubt, accordingly it should have been excluded from the evidence at trial.

C. Defence of Others

[26] Defence counsel at trial asked the trial judge to include defence of others in his charge to the jury. The trial judge refused, explaining:

. . . I really don't think quite frankly that I have to put this point. First of all, I think it's superfluous, because we know that force was applied to [the appellant]. We also know that force was applied to, earlier, to [the initial victim]. So, and, and the evidence clearly suggests according to [the appellant], his testimony, that he stabbed [the victim] for the purpose of defending or protecting himself, not [the initial victim] from the use or threat of force.

[27] We accept the appellant's submission that the trial judge erred by failing to instruct the jury on both aspects of s. 34 of the Criminal Code, R.S.C. 1985, c. C-46 (self-defence and defence of others). In concluding there was no air of reality to the defence of defence of others, the trial judge erred in focusing on what the appellant said in cross-examination.

[28] On our reading of the record, there were other aspects of the appellant's testimony in-chief and his statement to the police, as well as the testimony of others, that provided a basis for the defence to be left with the jury. Although aspects of the appellant's cross-examination may have undermined the basis for that defence, it was for the jury to determine what aspects of the evidence they would rely on, not the trial judge. The fact that the trial judge referred to the assault on the initial victim as part of the context for his instructions on self-defence did not obviate the requirement to charge on defence of others.

D. Unbalanced Instructions on Self-Defence

[29] We also accept the appellant's submissions that the trial judge's instructions to the jury on self-defence were unbalanced. Not only did the trial judge telegraph to the jury that he did not find the appellant's testimony about his injuries credible, the trial judge also failed to refer to evidence that supported the appellant's version of events.

[30] For example, the trial judge invited the jury to examine a photograph of the appellant to observe whether they could see the facial bruises the appellant claimed to have suffered. The photograph was taken less than 24 hours after the incident. The trial judge did not draw the jury's attention to the testimony of the police photographer who had agreed that bruises often do not show up immediately after an event, and added it was his preference to have individuals return a few days later for photographs (which was not done with the appellant).

[31] Instead, the trial judge instructed the jury "it is a matter of common sense that if repeatedly punched with moderate to great force, [the appellant] would have suffered visible facial injury". Read in context, this statement telegraphed the trial judge's view that the appellant's evidence of being punched and suffering facial injuries was not credible.

[32] Although a trial judge is entitled to express an opinion concerning his or her view of the evidence, by stating his opinion by reference to common sense and also failing to refer the jury to evidence pointing the other way, the trial judge may well have undermined the jury's ability to evaluate the appellant's evidence fairly. Nor did the trial judge remind the jury, in reviewing the photographic evidence, to keep in mind that the appellant is dark-skinned.

E. Provocation

[33] During the pre-charge conference, the trial judge expressed scepticism about leaving provocation as a defence. Nonetheless, he accepted the defence's request to do so. However, his instructions to the jury virtually eliminated an element of the defence. The trial judge stated: "there is no specific evidence that the [victim] and/or his companions engaged in a wrongful act or insult that was sudden". On our review of the record, there was evidence capable of supporting a finding of suddenness. Further, we read this instruction as the trial judge offering his view that suddenness could not be made out. In doing so, he usurped the function of the jury.

F. Disposition

[34] Based on the foregoing reasons, the appeal is allowed and a new trial is ordered.

Appeal allowed.

End of Document