WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Date: 2016-03-03

Court File No.: Brampton 14-14232

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Morad Thaher

Before: Justice P.A. Schreck

Heard on: January 25-29, 2016

Counsel

P. Renwick — counsel for the Crown

M. Cremer — counsel for the accused

REASONS FOR JUDGMENT

SCHRECK J.:

I. EVIDENCE

A. The Stabbing

[1] On Friday, November 14, 2014, Melissa Tuano and several co-workers, including Desmond Ng, went to a Wendy's restaurant at Brittania Road and Terry Fox Way in Mississauga to eat lunch. The Wendy's Restaurant is in the same building as a Tim Hortons coffee shop, however the latter was closed for renovations. Ms. Tuano and her colleagues arrived at the restaurant at about 12:35 or 12:40 p.m. They finished eating at around 1:15 p.m. and were engaged in conversation as they did not have to return to work until 1:30 p.m. As they were talking, a man walked up behind Mr. Ng, put his arm around him and grabbed the lower part of his ears. At first, Ms. Tuano thought that this person must be a friend of Mr. Ng's. The man then moved his hand, which was clenched, back and forth around Mr. Ng's neck four or five times. Mr. Ng said "ouch" and tried to resist, but the man's arm was still around him. Ms. Tuano and the others began to shout at the man. He let go of Mr. Ng, who began to fall, and then walked out the door of the restaurant. He did not say anything and remained expressionless during the attack.

B. Descriptions of the Attacker

[2] Ms. Tuano described the attacker as having a medium build, about 5'4" tall, and with a "lighter brown" skin complexion. He was wearing a black jacket which was not bulky and a light brown tuque.

[3] Julie Mouchbahani had entered the establishment with her parents to buy coffee. She suddenly heard a scream. She saw a man bleeding from the neck who appeared to be looking at another man walking towards the door. Ms. Mouchbahani followed this man out of the restaurant and saw him walk across Brittania Road, where he started "almost running" towards some townhouses until she lost sight of him. Ms. Mouchbahani described the man as being between 25 and 35 years old, 5'6" to 5'8" tall, "kind of husky" and with some stubble on his face. He was wearing a long black coat, black pants and a beige knitted hat. She believed that he may have been middle-Eastern or Italian.

[4] Bryan Co, a manager at Tim Hortons, was in the restaurant when he witnessed a commotion between two men. He saw one of the men walk quickly out of the restaurant. Mr. Co described this man as middle-Eastern, 20 to 25 years old, with about two days' worth of facial hair and about 5'8" tall. He was wearing a beige, camouflage-patterned Blue Jays baseball cap and a beige winter coat that went to his knees.

[5] All of the descriptions, while vague, were not inconsistent with Mr. Thaher's appearance. I heard no evidence of any type of identification procedure nor were any of the witnesses asked to identify Mr. Thaher in court.

C. Injuries to the Victim

[6] Mr. Ng sustained serious injuries from the attack and required numerous stitches. There is no issue that his injuries constitute wounding. It is also acknowledged that it would be open to a reasonable jury to conclude that the person who attacked Mr. Ng intended to kill him.

D. The Altercation Later That Day

[7] Sometime later that day, Mr. Thaher was involved in an altercation with another individual at a different Tim Hortons located at Brittania Road and Mavis Road in Mississauga during which Mr. Thaher threw a sandwich at the other person. A witness photographed Mr. Thaher and later provided the photograph to the police. In the photograph, Mr. Thaher is wearing a dark winter coat and what appears to be a grey, knitted winter hat with ear flaps. The police suspected that the two incidents were related and accordingly sought to locate Mr. Thaher, whose identity was unknown at the time.

E. Mr. Thaher's Arrest

[8] A little over two days later, in the early morning hours of November 17, 2014, the police received a call about a suspicious individual who had been trying to open locked doors on Queen Street in Streetsville. Cst. George Mageanu responded to the call and proceeded to the area where he saw Mr. Thaher, the only person on the street at the time. Cst. Mageanu asked Mr. Thaher to identify himself, which he did. When asked what he was doing in the area, Mr. Thaher replied that he was there to check Christmas decorations his friends had put up for him, a response which the officer found odd. A second officer, Cst. Adrian Markowski, arrived on scene. Upon viewing Mr. Thaher, he decided that he may be the person in the photograph provided to the police on November 14. He accordingly requested that another officer bring the photograph to him.

[9] Cst. Markowski advised Mr. Thaher that he was "under investigative detention" and that he would be searched for weapons or tools. He asked Mr. Thaher if he had any weapons. Mr. Thaher replied that he did not, but that he did have some marijuana. He explained to the officers that he suffered from schizophrenia and used the marijuana to calm himself. Mr. Thaher gave the officers the marijuana. He was then searched. No weapons were found, but a pair of scissors was located in his backpack.

[10] At 1:28 a.m., Mr. Thaher was arrested for possession of marijuana. He was advised of his right to counsel. He immediately told the officers that he did not mind talking to them. He began to tell them that he had been taking photographs of children at the Tim Hortons at Brittania Road and Mavis Road and also began to explain his schizophrenia.

[11] Another officer arrived with the photograph and Cst. Markowski confirmed that it was Mr. Thaher. He then transported Mr. Thaher to 11 Division. Cst. Markowski acknowledged that his purpose in doing so was to allow the criminal investigative bureau to investigate him for the November 14 incidents. Otherwise, he likely would have only cautioned Mr. Thaher for possessing marijuana and then released him.

F. The Interviews

[12] Mr. Thaher arrived at 11 Division at 1:41 a.m. After being booked, he was placed in a cell at 1:50 a.m. At 2:40 a.m., he was taken to an interview room where he was interviewed by Cst. Sarah Wood and Cst. Markowski until 4:45 a.m. He was then returned to his cell. At 6:10 a.m. he was taken to another interview room, where he was interviewed by Det. Mark Heyes until 1:43 p.m. The contents of the interviews will be discussed in depth later in these reasons.

[13] It is agreed that while Mr. Thaher was in the cells, nothing transpired which could have affected the voluntariness of any his statements.

II. RELEVANT LEGAL PRINCIPLES

A. The Modern Confessions Rule

[14] The modern confessions rule in Canada was comprehensively explained by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38 and more recently summarized in R. v. Spencer, 2007 SCC 11 (at paras. 11-13):

At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case "recast the law relating to the voluntariness of confessions ... It rejected resort to fixed and narrow rules": D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule "is concerned with voluntariness, broadly understood". He also emphasized that a contextual approach is required (at para. 47):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and "should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule" (Oickle, at para. 63). On the other hand, the use of "police ... trickery" to obtain a confession "is a distinct inquiry ... [given that] its more specific objective is maintaining the integrity of the criminal justice system" (para. 65).

[15] As was made clear in Oickle, supra (at para. 71), a determination of whether the Crown has proven voluntariness is essentially a factual one that must be made having regard to all of the relevant circumstances. In making the determination, the Court must be "sensitive to the particularities of the individual suspect": Oickle, supra at para. 42.

B. The Rationale for the Rule – Reliability and the Danger of False Confessions

[16] In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, the Supreme Court of Canada re-affirmed (at para. 29) that concerns about reliability are the primary reason for the confessions rule and the rule is "largely informed by the problem of false confessions". This had been explained earlier in Oickle (at para. 32):

... [T]he confessions rule is concerned with voluntariness, broadly defined. One of the predominant reasons for this concern is that involuntary confessions are more likely to be unreliable. The confessions rule should recognize which interrogation techniques commonly produce false confessions so as to avoid miscarriages of justice.

The Court also pointed out that regard must be had to the societal interest in the investigation of crimes. These objectives are not mutually exclusive. There is of course no societal interest in obtaining false confessions.

[17] The growing recognition of the problem of false confessions plays a large part in the modern formulation of the confessions rule, as articulated in Oickle. In that case, the Court recognized four types of false confessions, adopting the classification explained in R.J. Ofshe and R.A. Leo, "The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions" (1997), 16 Stud. L. Pol. & Soc. 189 (Ofshe & Leo (1997)) (at paras. 38-41):

According to Ofshe & Leo (1997), supra, at p. 211, stress-compliant confessions occur "when the aversive interpersonal pressures of interrogation become so intolerable that [suspects] comply in order to terminate questioning". They are elicited by "exceptionally strong use of the aversive stressors typically present in interrogations", and are "given knowingly in order to escape the punishing experience of interrogation" (emphasis in original). See also Gudjonsson & MacKeith ["Retracted Confessions: Legal, Psychological and Psychiatric Aspects" (1988), 28 Med. Sci. & L. 187]. Another important factor is confronting the suspect with fabricated evidence in order to convince him that protestations of innocence are futile: see ibid.; Ofshe & Leo ["The Decision to Confess Falsely: Rational Choice and Irrational Action" (1997), 74 Denv. U. L. Rev. 979 (1997a)] at p. 1040.

Somewhat different are coerced-compliant confessions. These confessions are the product of "the classically coercive influence techniques (e.g., threats and promises)", with which the Ibrahim rule is concerned: Ofshe & Leo (1997), supra, at p. 214. As Gudjonsson & MacKeith (1988), supra, suggest at p. 191, "most cases of false confession that come before the courts are of the compliant-coerced type". See also White, ["False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions" (1997), 32 Harv. C.R.-C.L. L. Rev. 105] at p. 131.

A third kind of false confession is the non-coerced-persuaded confession. In this scenario, police tactics cause the innocent person to "become confused, doubt his memory, be temporarily persuaded of his guilt and confess to a crime he did not commit": Ofshe & Leo (1997), supra, at p. 215. For an example, see Reilly v. State, 355 A.2d 324 (Conn. Super. Ct. 1976); Ofshe & Leo (1997), supra, at pp. 231-34. The use of fabricated evidence can also help convince an innocent suspect of his or her own guilt.

A final type of false confession is the coerced-persuaded confession. This is like the non-coerced-persuaded, except that the interrogation also involves the classically coercive aspects of the coerced-compliant confession: see Ofshe & Leo (1997), supra, at p. 219.

As will be developed throughout these reasons, my primary concern in this case is with the third category, the "non-coerced-persuaded confession".

C. The "Non-Coerced-Persuaded Confession"

[18] To understand this category of potentially false confessions, it is helpful to consider the explanation in Ofshe & Leo, upon which the Court in Oickle relied (at pp. 215-216):

As the term is defined, a non-coerced-persuaded confession is elicited in response to the influence tactics and techniques of modern, psychologically sophisticated accusatorial interrogation, and given by a suspect who has temporarily come to believe that it is more likely than not that he committed the offense despite no memory of having done so.

Some of the influence techniques that interrogators routinely employ can cause an innocent person to become confused, doubt his memory, be temporarily persuaded of his guilt and confess to a crime he did not commit. When the interrogation begins, an innocent suspect has no recollection of committing the crime; the only factual details he knows are those that are either public knowledge or that police have supplied. Believing or pretending to believe that the suspect is guilty, the interrogator repeatedly accuses him of having committed the crime, asserts the futility of denial, and presses for an admission of details to the offense. At this stage, the innocent suspect will likely steadfastly deny any involvement in the crime and remain firmly committed to the knowledge that he is innocent.

The factor distinguishing a persuaded confession is that, at some point, the accuracy of the suspect's memory becomes central. Persuaded confessions depend upon a successful attack on a suspect's confidence in his memory – specifically his lack of memory of having committed the crime. The suspect's knowledge that "I know I did not do this" completely depends on his confidence in the workings of his memory.

Undermining a suspect's confidence happens after the interrogator has presented erroneous or fabricated evidence. If an innocent suspect does not know that police lie, he may become confused and upset because of the implications of the so-called evidence, and may desperately seek to convince the interrogator of his innocence. Failing to understand the strategic nature of the interrogator's repeated accusations and failing to reject the false evidence ploys, the suspect will realize, at some point, that the foundation of his belief in his innocence is the absence of any memory of having committed the crime. If he protests that "I'm innocent – if I had done this I'd remember it," the trustworthiness of his memory becomes the focus of the interrogation.

The crucial factor for eliciting a persuaded confession is getting the suspect to accept a seemingly plausible explanation for his lack of memory of having committed the crime. Even as he follows the logic of the evidence, the innocent suspect will continue to assert that he has no memory of the crime. To the interrogator, this claim represents merely another disingenuous denial by a presumably guilty suspect. The interrogator will thus attempt to counter the suspect's denial of memory in any way possible. Interrogators use routine counters to this assertion to neutralize a suspect's presumed disingenuous denial and in hopes of permitting a guilty suspect to de facto acknowledge culpability. Sometimes they suggest that the suspect's lack of memory is explained by a drug or alcohol-induced blackout, a momentary lapse in consciousness, a repressed memory or even Multiple Personality Disorder. When the tactic of suggesting an explanation for the report of no memory is used against an innocent suspect, a protracted debate is likely to develop during the interrogation.

[19] Later in Oickle, in the context of a discussion about oppression, the Court equated persuading a suspect to doubt his own memory with overbearing his will (at para. 58):

Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect's will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession. [Emphasis added].

See also R. v. Will, 2012 SKQB 244.

D. The Use of Non-Existent Evidence

[20] One type of oppressive condition recognized in Oickle is the use of non-existent evidence. While it is permissible for the police to pretend that they have evidence implicating the suspect, the Court made it clear that this is an approach that carries with it certain dangers (at para. 43):

Another theme is the danger of using non-existent evidence. Presenting a suspect with entirely fabricated evidence has the potential either to persuade the susceptible suspect that he did indeed commit the crime, or at least to convince the suspect that any protestations of innocence are futile.

Later in the judgment, the Court stated (at para. 61):

A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions, supra, revealed, this ploy is very dangerous: see Ofshe & Leo (1997a), supra, at pp. 1040-41; Ofshe & Leo (1997), supra, at p. 202. The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement. However, when combined with other factors, it is certainly a relevant consideration in determining on a voir dire whether a confession was voluntary.

E. Police Conduct

[21] In Oickle, the Court noted that "false confessions are rarely the product of proper police techniques" (at para. 45). It is important to note, however, that this is a factual observation and not a statement of legal principle. While the focus in much of the voluntariness jurisprudence is on the propriety of police conduct (or lack thereof), the ultimate issue is not whether the police behaved appropriately but, rather, whether the statement in question was made voluntarily. There may be cases where the police behaved improperly but the resulting statement was nonetheless voluntary. Conversely, there may be cases where despite the propriety of the police conduct, the resulting statement was not voluntary. See, for example, R. v. Fernandes, [2015] O.J. No. 3867 (S.C.J.) at para. 34; R. v. Johnny, [2015] B.C.J. No. 891 (S.C.) at paras. 63-66.

III. OVERVIEW OF THE ANALYSIS

A. The Characteristics of a Non-Coerced-Persuaded Statement

[22] With the foregoing principles in mind, I turn now to the two interviews of Mr. Thaher. Counsel for both parties made extensive reference to various portions of the two statements which they submitted supported their respective positions. Many of those portions, when taken in isolation, support such arguments. However, in determining voluntariness, the entire chain of events must be considered.

[23] In this case, there are four significant factors which raise concerns that the inculpatory statements the Crown seeks to have admitted were non-coerced-persuaded statements:

1. The sheer length of the interview process. Mr. Thaher was interviewed for a total of nine and a half hours over a 12-hour period, with the process beginning late at night. At one point, he fell asleep on the floor of the interview room. He was fed nothing more than a tea biscuit during this entire period.

2. The police made frequent use of non-existent evidence, suggesting that they had video evidence, DNA and fingerprints proving that Mr. Thaher was present at the scene of the stabbing. None of this evidence actually existed.

3. On several occasions, Det. Heyes suggested to Mr. Thaher that his lack of memory was the result of some sort of mental defence mechanism. At some points, he linked this to Mr. Thaher's schizophrenia.

4. Mr. Thaher's repeated requests to have access to his phone or his Facebook account to help him remember the date in question were denied.

B. The "Reid Technique"

[24] Although the term was not referred to in evidence, the interviews in this case had many of the characteristics associated with the "Reid technique". The features of the Reid technique were described by Glithero J. in R. v. Barges, [2005] O.J. No. 5595 (S.C.J.) at para. 53:

They include unequivocal statements by the police indicating that they are convinced that the accused is criminally responsible, discussion by the police of an accused's redeeming qualities and the use of praise and personal flattery to attempt to persuade him to talk, the use of techniques designed to minimize the accused's moral responsibility by suggesting some reason making the accused's actions more understandable, suggesting that anyone else faced with the same situation might have reasonably acted the same way, condemning others by suggesting their actions were in some way partially responsible for what happened, suggestions by the police that the community, or members of it, are thinking badly of the accused, hence suggesting that the record should be set straight, moving physically closer and touching the accused during the interview, while uttering gentle words suggesting understanding, questions suggesting two alternatives, both indicative of guilt, but one more palatable than the other, and both of which ignore the third possibility of denial, the use of lengthy monologues by the police designed to deflect the accused from wanting to leave or continuing to assert a certain position.

See also R. v. Minde, 2003 ABQB 797.

[25] As will be seen, in this case, Det. Heyes repeatedly praised and flattered Mr. Thaher. He repeatedly suggested that Mr. Thaher was not a "bad person" but had simply "lost control". He suggested on more than one occasion that the victim had provoked the attack on himself. He sat close to Mr. Thaher and touched him repeatedly and rubbed his back. Any denial of guilt by Mr. Thaher was quickly dismissed and deflected.

[26] Of course, use of the Reid technique or something akin to it does not automatically render a statement inadmissible: R. v. Visciosi, [2006] O.J. No. 3251 (S.C.J.) at paras. 14-15. However, the technique is inherently coercive and for that reason has been the subject of considerable judicial and academic criticism: R. v. Barges, supra at paras. 86-90; R. v. M.R., [2015] O.J. No. 3885 (C.J.) at paras. 47-49; R. v. C.T., [2015] O.J. No. 2905 (C.J.) at paras. 21-22; R. v. Chapple, 2012 ABPC 229 at paras. 120-122; R. v. S.(M.J.) (2000), 2000 ABPC 44, 32 C.R. (5th) 378 (Alta. Prov. Ct.) at paras. 39-41; T.E. Moore and C.L. Fitzsimmons, "Justice Imperiled: False Confessions and the Reid Technique" (2011), 57 C.L.Q. 509; B. Snook et al., "Reforming Investigative Interviewing in Canada" (2010), 52 Canadian J. Criminology & Crim. Just. 215; S.M. Kassim, S.C. Appleby and J. Torkildson Peerillo, "Interviewing Suspects: Practice, Science, and Future Directions" (2009), 15 Legal and Crimininological Psychology 39; B. Gallini, "Police 'Science' in the Interrogation Room: Seventy Years of Pseudo-Psychological Interrogation Methods to Obtain Inadmissible Confessions" (2010), 61 Hastings L.J. 529.

[27] Among the critics of the Reid technique are Professors Ofshe and Leo, whose work was relied upon by the Supreme Court of Canada throughout the judgment in Oickle and in particular at para. 45:

Fortunately, false confessions are rarely the product of proper police techniques. As Leo & Ofshe (1998), supra, point out at p. 492, false confession cases almost always involve "shoddy police practices or criminality".

The reference to "shoddy police practices" at p. 492 of Leo & Ofshe (1998) is in fact a direct reference to the Reid technique, which the authors describe as having been "shown to be coercive and to produce false confessions".

C. Mr. Thaher's Schizophrenia

[28] As directed by the Court in Oickle, I must consider the "particularities of the individual suspect." Mr. Thaher suffers from schizophrenia. In viewing the video of the interviews, it is almost immediately apparent that Mr. Thaher is seriously mentally ill. Much of what he says is difficult to follow and some is patently untrue. For example, on several occasions he says that his legs do not work. He mentions that he takes photographs of children "for research purposes" because their "pro-social behaviours" change over time because of their "paranoid mothers". As well, he spends much of the second interview lying on the floor of the interview room, sitting on the back of a chair or doing some type of stretching exercises.

[29] Crown counsel submits that in the absence of expert evidence, the fact that Mr. Thaher is a schizophrenic can have very little bearing on the voluntariness analysis. I disagree. I can take judicial notice of the general nature of the illness, that is, that it is a form of mental illness that affects the manner in which an individual perceives reality. As well, I can consider Mr. Thaher's own statements during the interviews with respect to what he is thinking and his reactions to what the police tell him.

[30] That said, I have no doubt that Mr. Thaher had an operating mind, as that term is understood in the jurisprudence. He clearly understood what he was saying and that the evidence may be used in proceedings against him: R. v. Whittle, [1994] 2 S.C.R. 914 at para. 45.

D. Assessment of Credibility

[31] In determining how the actions of the police impact on Mr. Thaher, I must to some extent assess the credibility and reliability of what he says during the interviews. In particular, he makes a number of comments about his lack of memory of having committed the offence that he is accused of and how information he receives from Det. Heyes affects his memory. I must keep in mind that the focus on the voir dire is whether the statements are voluntary, not whether they are true. I must accordingly only make such findings of fact as are necessary to determine voluntariness. Whether the statements are true is to be determined by the trier of fact if the statements are admitted.

[32] The police officers interviewing Mr. Thaher were obviously of the view that he is being untruthful. This is, unsurprisingly, also the Crown's position. However, I am not convinced of this. Det. Heyes does a masterful job of creating a personal connection with Mr. Thaher early on in the interview. It is obvious that Mr. Thaher respects and trusts Det. Heyes, a fact which the Crown relies on as evidence of voluntariness. Having carefully watched the interview repeatedly, I do not believe that Mr. Thaher is attempting to deceive Det. Heyes, although it is of course possible that he is. In my view, Mr. Thaher's denials of any memory of committing the offence are credible. I draw this conclusion not for the purpose of assessing the truth of the assertions that are said to be admissions. That is clearly not my function on this voir dire. I draw this conclusion only for the purpose of assessing whether the Crown has proven beyond a reasonable doubt that the supposedly inculpatory utterances are voluntary and not the result of the police having caused him to doubt his own memories.

IV. THE INTERVIEWS

A. The First Interview

[33] Mr. Thaher was placed in the interview room at 2:40 a.m., having arrived at the police station about an hour earlier. At first, Cst. Wood entered the interview room alone. After introducing herself, she told Mr. Thaher that he was under arrest for possession of marijuana and advised him of his right to counsel and the availability of duty counsel. She asked him if he understood:

THAHER: I understand everything except, um, so is the arrest, um, for possession of marijuana or . . .

WOOD: Yes.

THAHER: So just the possession of marijuana, not the incidence [sic] before?

WOOD: Right. So you've been arrested for possession of marijuana that you, um, had on you when you were in speaking with the police. Um, but we're also gonna be speaking, um, about an incident that had occurred, okay? So I'll talk to you about that in a second but right now for this, do you understand what I read to you?

THAHER: Yes, I understand.

WOOD: Okay. What does that mean to you?

THAHER: Uh, I, I, I can't remember.

WOOD: Okay, so I'll go --, I'll just do it step by step and then I'll ask what it means to you. I kn--, I know it's late, right? It's 2:00 in the morning. You're probably tired, um, so we'll go just go through this slowly. Does that work for you?

It is noteworthy that at the outset, Cst. Wood recognized that it was late and that Mr. Thaher was "probably tired".

[34] Cst. Wood once again advised Mr. Thaher of his rights. Mr. Thaher expressed puzzlement at the arrest, given that he had possessed only a small amount of marijuana. When asked whether he wished to speak to a lawyer, he advised Cst. Wood that he did not know any lawyers and asked her whether he would be permitted to go home that night. She responded that she could not say at that point. She then suggested calling duty counsel. Mr. Thaher told her that he would prefer it if she did not because it was "too stressful". She then offered him a lawyer's directory. At this point, Mr. Thaher suddenly became visibly upset and began to cry. Cst. Wood then left the room.

[35] Seven minutes later, Cst. Wood returned, this time with Cst. Markowski. Mr. Thaher was lying on the interview room floor. He immediately apologized for his "outburst". Cst. Markowski then offered him food, which he declined.

[36] Cst. Markowski told Mr. Thaher that he had to explain some things to him "just for technicality". He once again advised Mr. Thaher of his right to counsel. Mr. Thaher replied that he was not going to speak to a lawyer because it would "ruin my mindset" and "for the sake of my mental health and well-being". Later, he again said that he did not need legal advice and then said the following:

THAHER: Schizophrenics, we do not experience emotion. That's why I prefer to keep my eyes closed because you guys are authoritative figures. You guys can see when a person is lying and when they're telling the truth. But to be honest, when a schizophrenic looks at you, they look at you with a blank stare. It doesn't mean anything to them.

[37] Cst. Markowski then read the standard cautions. Mr. Thaher continued to explain his views about the symptoms of schizophrenia and how he felt that most people did not understand the condition. At one point, he told the officers that he "opened my eyes when the whispers come 'cause I know everything that goes on".

[38] Cst. Wood cautioned Mr. Thaher that he would be questioned in relation to a stabbing. Mr. Thaher replied that he had scissors in his backpack, which was "the only weapon that it could be considered a weapon", but that he had not used it as a weapon. He said that he believed that he had been "set up", following which he began to talk about a "statue thing in Queen's Square". He told the officers about "a bunch of red things that I saw in the bushes" and about a "chain of signs" that led him to do "weird things . . . like going through the doors".

[39] At one point, Mr. Thaher mentioned a Tim Hortons and why he had "reason to be under suspicion". When asked which Tim Hortons he was referring to, he replied that it was the one at Brittania Road and Creditview (which is not where the stabbing occurred). The officer then asked him if he was familiar with a Tim Hortons at Brittania Road and Terry Fox Way (where the stabbing took place). He replied that he was but could not remember when he had last been there. Cst. Wood then told Mr. Thaher that they wanted to give him a chance to tell them "his side of the story". Mr. Thaher replied that he was going to be honest with them and that he did not care if he went to jail for 20 years "for a stabbing that I didn't do".

[40] It is clear that at this point, it was Mr. Thaher's position that he was not responsible for the stabbing. Cst. Wood then changed the subject and asked Mr. Thaher about what he had been doing earlier that night before his arrest. Mr. Thaher began to talk about smoking marijuana outside of a McDonald's and drawing the attention of the manager:

THAHER: He looked like was a bit jittery after, like he was a bit nervous so I figured, you know what, like maybe I was being too hard on the guy like maybe he's similar to me. Maybe I was just, you know, being inconsiderate myself. But at the same time, all my life, I've been so nice to people and they've just stomped all over me so that's why recently, I've decided to go through this change and, you know, step up for myself. And, uh, that's why -, let's go to the Tim Hortons day. Um, that's why that day, I took a few pictures. And I took these for research purposes, for knowledge purposes to share with my friends, not just my friends, my colleagues too. And I, I felt like the a-, every picture I took was worth a thousand words. But I knew that I, I had a limits. There's only a f-, certain few pictures I could take without those suspicious mothers noticing me.

Mr. Thaher explained that he had taken pictures of children because he had wanted to "talk about their prosocial behaviours", although he believed that their mothers would "deter those prosocial behaviours". He explained that a man there had called the police and that this man had tried to "impose his will" on him and had "ostracized" him, which was why Mr. Thaher threw a sandwich at him.

[41] Mr. Thaher continued to talk to the officers about a number of topics, including his schizophrenia, his cultural background (he is originally from Jordan), his family and his marijuana use. He then told the police that he had to "open up to them" and told them that he had not committed any stabbing. As before, Cst. Wood changed the subject and began to ask Mr. Thaher about his schizophrenia. This conversation went on for quite some time. Mr. Thaher raised the sandwich incident on a few occasions.

[42] At one point, Cst. Wood asked Mr. Thaher when he had last been in the Tim Hortons at Brittania Road and Terry Fox Way. Mr. Thaher replied that he believed that it was under construction, so he had not been there in "quite a while". He then added that he had used "logic to deduce that" because schizophrenics "lose a lot of mental capacity". He added that the only incident he had ever been involved in there was a minor car accident about two years earlier.

[43] Cst. Wood and Cst. Markowski left the room and returned six minutes later. Cst. Wood then said the following:

WOOD: Okay. So we've, uh, just stepped out, uh, grabbed some water and, uh, spoke with the investigative team on, uh, this case with us, okay?

THAHER: (Nods head)

WOOD: And, uh, today there's no doubt in my mind that you're responsible for that man getting cut at that Tim Hortons in the, um, Brittania and Terry Fox, okay? Um, no doubt. So at this point, we don't wanna argue-, hold on, okay? At this point, we don't wanna argue that. We're not here to go back and forth. We're beyond that, okay? So the reason why I wanna talk to you now is to understand why this happened, okay? Um, I, you know you're not a bad guy. I know that a hundred percent, okay? You seem like a really good person. Um, you're not the type of person that would do this so I just wanna understand why, okay? I know you've gone through a lot with your family and I understand that. And a major thing is you trying to deal with your schizophrenia, okay? And I really sympathize with you. I can't say I know . . .

MARKOWSKI: (Inaudible)

WOOD: . . . how you feel 'cause I don't, okay? We don't know how you feel but we'd like to understand what was going through your mind and just get the truth as to what happened, okay? That's really important for us to get the truth, okay? And, um, you know, like I said, we just wanna under-, understand why it happened.

THAHER: I think I get why everybody did this.

WOOD: Okay. But we don't even wanna talk about that.

THAHER: Okay.

WOOD: . . . why everybody did what or whatever. I wanna give you the chance to tell me why you did it, okay?

THAHER: I didn't do it.

WOOD: And what. Okay. But like I . . .

THAHER: I didn't do it.

WOOD: . . . said . . .

THAHER: I already said I didn't . . .

WOOD: Okay.

THAHER: . . . do it.

WOOD: Okay.

THAHER: I will keep saying that until . . .

WOOD: Okay.

THAHER: . . . you get it drilled into your head.

Again, Mr. Thaher was clearly denying his involvement in the offence, in contrast to his position later, where he simply denied remembering having committed the offence.

[44] Cst. Wood persisted in telling him that they were "beyond that", a typical feature of the Reid technique. Mr. Thaher continued to deny his involvement. At one point, Mr. Thaher said that he did not wish to speak to the officers anymore and they agreed that it was his right not to. He continued to speak to them, however, and to deny his involvement.

[45] Cst. Wood then suggested that Mr. Thaher's mental illness caused him to commit the offence and that "this disease makes people do things they wouldn't normally do". Suggesting a less culpable explanation for the crime is also part of the Reid Technique. Mr. Thaher became very upset at this suggestion and accused the officers of "judging him" based on what he had told them about himself. He continued to deny committing the offence.

[46] Later in the interview, Cst. Wood suggested to Mr. Thaher that the police were in possession of video surveillance that showed that he had been present at the location of the stabbing:

WOOD: Okay. Let me ask you a question. We've been doing an investigation on this this for a long time now, right? We've been doing a lot of work. We have seized video surveillance from that Tim Hortons and Wendy's, okay? Why would that surveillance show you there on that day?

THAHER: Sorry?

WOOD: We've seized video evidence . . .

THAHER: Okay.

WOOD: . . . from that Tim Hortons and Wendy's . . .

THAHER: Yes.

WOOD: . . . on the date of the incident.

THAHER: Okay.

WOOD: Why would that video surveillance show you there?

THAHER: Um, okay. Well first of all, I don't even remember this. But first of all, I have to say that it's, it's human nature to forget things.

WOOD: Mm-hmm.

THAHER: So if I was there, I believe that, okay? I believe that. Maybe I walked in there to do something. I don't know. But I don't think I was there. I still, I still deny it. I have to see it in person but I can look at things from an open perspective so I'll take your word for it now.

Mr. Thaher then offered several possible explanations for the video surveillance, including that he had been there but had forgotten, or that the video showed somebody who resembled him. He did not appear to consider that the possibility that the police were misleading him which, of course, they were.

[47] It is significant in my view that up until this point, Mr. Thaher had clearly denied any involvement in the stabbing. Once Cst. Wood told him that the police had video surveillance, he appears to have begun to entertain the possibility that he had been there but had no memory of it.

[48] Cst. Wood then suggested that in addition to the video surveillance, the police were in possession of DNA and fingerprint evidence tying him to the stabbing. Mr. Thaher reacted to this by suggesting that he had been "set up" and returned to unequivocally denying his involvement:

WOOD: I know you're not this bigtime person that's going out and murdering people, you know, shooting people . . .

THAHER: I am not a violent person.

WOOD: . . . and stabbing people.

THAHER: I'm not stabber s-, whatever.

WOOD: Well, you're just forced to do this . . .

THAHER: No, I didn't.

WOOD: . . . because of what somebody . . .

THAHER: I was -, I did not do this.

WOOD: . . . was looking at you . . .

THAHER: No.

WOOD: . . . and making you uncomfortable.

THAHER: No. No. You're completely wrong. You're a hundred percent wrong. Both of you. Shame . . .

WOOD: I know you're not . . .

THAHER: . . . on you both.

WOOD: . . . a violent person.

THAHER: Shame on you both for looking at me like this.

[49] Cst. Wood then asked Mr. Thaher to tell them what he had done on the Friday that the offence had taken place. Mr. Thaher told them that he had difficulty remembering but that if he could look at his iPhone, it may assist him in recalling because of pictures he had taken. Cst. Markowski told Mr. Thaher that they would be able to locate a charger so that he could look at it. Mr. Thaher told the police that he aware that they wanted him to confess but that he never would as he had not committed the act. He continued to ask for his phone to assist him in remembering the day in question. The phone was ultimately never provided to him.

[50] At 4:13 a.m., the officers left Mr. Thaher alone in the interview room for about half an hour. During this period, he appears on the video to be tired and spends considerable time with his head down on the table, possibly asleep.

[51] At 4:44 a.m., the officers returned to the room to terminate the interview. In doing so, Cst. Markowski said "We'll give you a bit of a break. I think we're all exhausted". Mr. Thaher was returned to his cell. I note that the police at this point appeared to have recognized that Mr. Thaher was likely exhausted.

[52] At this point, Cst. Wood decided to enlist the assistance of Det. Heyes, who had special training in interviewing difficult witnesses.

B. The Second Interview

(i) Det. Mark Heyes

[53] Det. Mark Heyes was assigned to the Polygraph Unit, which is part of the Homicide Unit. He had special training in the use of polygraph testing, although he did not use a polygraph in this case. He had no prior involvement in the investigation and was called in for the sole purpose of interviewing Mr. Thaher.

[54] It is obvious that Det. Heyes is very good at what he does. He very quickly created a connection with Mr. Thaher, who almost immediately began to display an unusually pronounced admiration for and attachment to him. Det. Heyes made frequent mention of his two sons, one of whom has Attention Deficit Hyperactivity Disorder ("ADHD") and one of whom had died in an automobile accident. Det. Heyes appeared to have no qualms about using his own personal tragic circumstances to manipulate Mr. Thaher. He repeatedly compared Mr. Thaher to his sons, and Mr. Thaher at times stated that he viewed Det. Heyes as a father. Mr. Thaher obviously felt great sympathy for Det. Heyes, which the officer employed to his advantage. Det. Heyes also stayed very physically close to Mr. Thaher throughout the interview, often touching him or rubbing his back, which is also a feature of the Reid technique.

[55] Very early on, it became clear that Mr. Thaher was motivated to please Det. Heyes. There is, of course, nothing wrong with an interviewer creating an emotional bond with a subject. However, in this case, it created a situation where the repeated references to false evidence, the continuous deflection of any denial and the sheer length of the interview had a greater effect than they otherwise would have.

[56] During his testimony on the voir dire, Det. Heyes denied that his purpose in interviewing Mr. Thaher was to obtain a confession. Rather, he only wanted to learn the truth of what had taken place. At one point in his testimony, he suggested that he perhaps could have assisted Mr. Thaher in establishing an alibi. This testimony was, in my view, disingenuous. Having viewed the video of the interview, it is clear that Det. Heyes's only goal was to obtain an inculpatory statement. Any suggestion from Mr. Thaher that he was not guilty was quickly deflected by Det. Heyes, often by resort to non-existent evidence. While this approach is not impermissible, I am troubled by Det. Heyes's testimony that this was not his purpose.

[57] I am also troubled by Det. Heyes's failure to offer Mr. Thaher any food, other than a tea biscuit. When asked about this during his testimony on the voir dire, Det. Heyes stated "That was my mistake. I should have". When asked why he had not offered Mr. Thaher an opportunity to sleep, he replied "Again, that was my mistake". Det. Heyes is clearly a highly-trained and experienced interviewer. I find it very difficult to accept that he "mistakenly" failed to offer food and sleep to a subject he was interviewing for seven and a half hours.

(ii) The First Six Hours

[58] Before Det. Heyes entered the room, Mr. Thaher is seen on the video doing some sort of exercise. After Det. Heyes entered at 6:35 a.m. and introduced himself, Mr. Thaher explained that he was "70 or 80 percent in control" and that he had been exercising in order to "prepare myself mentally for the battle that would come next". When Det. Heyes attempted to explain that the interview would be recorded on video, Mr. Thaher began talking about his schizophrenia, which he said causes him to lose feeling in his legs and to "lack intuition".

[59] Very soon after the beginning of the interview, Det. Heyes began to tell Mr. Thaher about his son who has ADHD. As noted earlier, discussions about his sons would be a theme Det. Heyes returned to repeatedly throughout the interview.

[60] Det. Heyes confirmed with Mr. Thaher that he had been advised of his right to counsel and his right to silence. He told Mr. Thaher that he wished to speak to him about a stabbing and that if he was responsible for that incident, he would be charged with aggravated assault. In response, Mr. Thaher pointed out that Det. Heyes had mistakenly called him "Norad" instead of "Morad" and that Norad was "a historical thing". Det. Heyes then repeated that Mr. Thaher could speak to counsel. Mr. Thaher replied that it was not necessary. Det. Heyes made it clear that Mr. Thaher was not obliged to speak to him and that anything he said could be used as evidence in court. Mr. Thaher indicated that he understood, but that he felt that a lawyer would "just give me, you know, a gateway to, you know, block you guys out" and that lawyers were always "changing the story". Mr. Thaher indicated that he had nothing to fear because he knew that he had not committed the crime.

[61] Det. Heyes asked Mr. Thaher if anybody had offered him anything to eat. He replied that another officer had offered him something from Tim Hortons, which he believed might have been a "trap". Det. Heyes provided Mr. Thaher with a tea biscuit and some hot chocolate. This was the last food he was offered until after the interview was complete.

[62] During the initial conversation, Det. Heyes told Mr. Thaher that his son had died. On more than one occasion, he told Mr. Thaher that he was like his son. For some time, Mr. Thaher and Det. Heyes discussed a variety of topics, including Mr. Thaher's culture and family. Much of what Mr. Thaher said was bizarre and difficult to follow. Mr. Thaher also told Det. Heyes that he used marijuana, despite it being "ill-advised for a schizophrenic". He explained that he used it to "induce very mild stages of psychosis just to understand the illness".

[63] At one point, Det. Heyes returned to a discussion about his sons, which he then attempted to segue into the stabbing incident:

HEYES: . . . but people don't see him how we see him. People don't see you how you see yourself. I do. I see this young man sitting in front of me who's very intelligent, very smart, very understanding, but makes mistakes, 'cause we all do. Every single one of us. My son Bradley makes mis-, makes mistakes. My son made a mistake and that's what cost him his life. So when I say to you Morad, we all make mistakes, we do. And that's what it's all about. And, you know what? With everything that happened here, what happened last Friday that was a mistake. That's not you, it's not you.

THAHER: Sir, I would just like to say, what happened last Friday, uh . . .

HEYES: I know.

THAHER: . . . I-, I'm sorry if, if this sounds too blunt but I did not do it.

HEYES: But, you know what? You know you did. You know that.

THAHER: No. That's not true.

[64] Det. Heyes then asked Mr. Thaher to describe what he had done on Friday. He replied that he could not remember, but that he wanted to "clear himself". As before, he suggested that viewing photographs he had taken would assist him in remembering. He asked for his iPod to be charged. Det. Heyes replied "okay" but then asked Mr. Thaher to "walk me through what the iPod is gonna do for me". Mr. Thaher then told him about the sandwich-throwing incident, which began when he had taken pictures of children at Tim Hortons for "research purposes".

[65] At one point, Det. Heyes suggested that his son who has ADHD may also have schizophrenia. He explained that his son "hears voices" and that he wondered whether his son did things because he believed somebody told him to do them. He continued to compare Mr. Thaher to his son and told him that "the similarities are astronomical".

[66] Later, Det. Heyes described an incident where his son Bradley (the one whom he described as being possibly schizophrenic) chased his other son, Brock, with a knife. He then spoke about his son who died because he had been texting while driving and had not worn a seatbelt:

HEYES: . . . That decision caused my wife and I to lose our son. And when I look at that, I look at that -, I can't stop that can I? Just like your mom and dad can't stop you. My other son Bradley, am I angry with him for the way he responds sometimes, yes I am. Am I trying to be a good father, I am trying. I'm doing the best I can to help him get through life and be a good young man. Just like you are trying to get through your life to be a good young man. But sometimes things happen, right? Some things happen. And bad things happen and we realize shit, I shouldn't have done that. And excuse my French when I say that. And that's the way my son is. And I just look at these things and I look at the, you know, the, the similarities between you and my son and I just sit there and I go, wow, that's incredible. A young man that I can sit here and talk to. If my youngest-, if Bradley had . . .

THAHER: I just wanna . . .

HEYES: . . . your . . .

THAHER: . . . say that your story even though I lack so much emotion it's touched me to the point where I want to believe that I've committed this crime. This is what I want to believe now.

HEYES: But you-, but again. . .

THAHER: But I haven't.

HEYES: But you know that. You know that. And that's where we're, that's where we're different right now. You know that.

THAHER: But you don't?

HEYES: But I do. I do. And I will, I will come back and I wanna show you some stuff. I will show you some stuff. And I told you I'm not gonna lie to you. I'm not here to lie to you about anything.

[Emphasis added].

Det. Heyes did not explain what it was he planned to show to Mr. Thaher. It is noteworthy that by this point, Mr. Thaher appears to be motivated to believe that he had in fact committed the crime.

[67] Det. Heyes then once again asked Mr. Thaher to describe what he had done on Friday. Mr. Thaher repeated that he could not remember, but that he remembered taking pictures at Tim Hortons. Mr. Thaher then got up from his chair and began to jump up and down. Det. Heyes left the room to give Mr. Thaher time to remember what had happened.

[68] Mr. Thaher was left alone in the room for 47 minutes between 8:08 and 8:55 a.m. He spent this time pacing around the room, doing what appear to be stretching exercises, and lying still on the floor.

[69] When Det. Heyes returned, Mr. Thaher explained to him that he had been "reconstructing reality":

THAHER: Reconstructing reality.

HEYES: There we go.

THAHER: That's the part we both missed.

HEYES: There we go. Thank you.

THAHER: The reason we both missed it is because right now I have to talk at a pace where you can understand me and where also I can understand me too while maintaining this pace. So reconstructing reality. Um, this is something that no one has ever-, I don't think have done before because the reason I have-, I've had to do this is 'cause for schizophrenics one of the hardest things to do is their delusional beliefs that change that basically. And, uh, a lot of that is just because this huge, huge thing called reality, I would use the whole table to describe it, just because a circle is so infinite sometimes. You know, Pi goes on forever, right? So where was I? I was going somewhere with this. Now I lost my train of thought. But the, the point is, is the memory. My memory fades sometimes, but it comes back.

[70] Mr. Thaher then told Det. Heyes that he still could not remember what he did on Friday. He added that he was "holding back a lot right now". Det. Heyes then said the following:

HEYES: And, and the fact is, I've been out there talking to the investigators, okay? I have. And I told you I'm not here to lie to you, I'm not here to make you look like a bad person.

THAHER: I know what they say.

HEYES: I, I-, I'm here to . . .

THAHER: Yeah.

HEYES: . . . tell you that, you know . . .

THAHER: It's not looking good for me.

HEYES: It doesn't look good.

THAHER: Yeah, I know.

HEYES: And there's no, and there's no doubt.

THAHER: I know that.

HEYES: Okay? Morad, there's no doubt that you were the one that went into that Tim Hortons that day.

THAHER: No.

[71] Mr. Thaher again denied committing the offence. Det. Heyes insisted that he had, but suggested that he had gone there without the intention of harming anybody, but that "things got out of control" and that Mr. Thaher was not the type of person to hurt somebody, both suggestions which are typical of the Reid technique. He told Mr. Thaher that the time had come for him to accept responsibility "just like I have to accept responsibility and my son had to accept responsibility". Det. Heyes then described how his son who had died had caused him and his wife a lot of pain by making a "mistake" just like Mr. Thaher had caused somebody pain by making a mistake. Mr. Thaher reacted to this by expressing concern that Det. Heyes had not forgiven himself for the death of his son.

[72] There followed an extensive discussion about Det. Heyes's sons and Mr. Thaher's difficult relationship with his own parents. Mr. Thaher observed that Det. Heyes was "so different from my parents". At one point, Mr. Thaher said the following:

THAHER: You made me want to co-, u, get to the point where I, I am willing to lie just to . . .

HEYES: No, you're not, you're not here to lie. I know that. 'Cause you're smart enough, you're smarter than that.

THAHER: Well, I mean you guys are not gonna believe me if I keep telling you guys that I didn't do it. So I'm willing to lie now just . . .

HEYES: No.

THAHER: . . . 'cause I heard . . .

HEYES: No, no.

THAHER: . . . your story.

[Emphasis added].

Det. Heyes told Mr. Thaher that he did not want him to lie, but that he knew "in his heart" that he had been at the Tim Hortons on Friday. Mr. Thaher's response was "I don't remember any of this". Det. Heyes suggested that Mr. Thaher wanted to "erase" the event from his memory because it was "a bad thing".

[73] Mr. Thaher suggested that he had "a way of figuring out with actual proof" because he had sent Facebook messages that day to two friends and if he could see those messages, it would help him "deduce" what had happened that day. This appears to be another reference to using his phone to assist him with his memory.

[74] Det. Heyes continued to suggest that Mr. Thaher's memory difficulties were the result of "repression":

HEYES: Yeah. Just, just listen though. Your memory is fading away because you're choosing to fade that memory away because this is what happens to us. When something bad happens to us or when we have done something bad or something wrong, then what happens is, we don't want to remember so we, we start eventually psychologically . . .

THAHER: Repress.

HEYES: . . . we, we start to repress. And that's exactly. . .

THAHER: S-, it actually . . .

HEYES: Right.

THAHER: . . . a lot of people they miss the phase where you suppress.

HEYES: Yeah.

Det. Heyes went on to repeat that he did not believe that Mr. Thaher could not remember that day. Mr. Thaher acknowledged that there were "some days I have to forget some days, repress those things."

[75] After some digression, Det. Heyes told Mr. Thaher that he knew that the "truth" was that Mr. Thaher had committed the stabbing and that he needed to understand why it had happened. Mr. Thaher once again requested his phone:

THAHER: May I first request, um, access to Facebook or my iPhone? Either one will do, I just need one to remember what happened that day.

Det. Heyes responded that there were no outlets in the interview room, but that he would "see what I can do".

[76] Det. Heyes briefly left the room and brought Mr. Thaher some water. After he returned, Mr. Thaher said the following:

THAHER: Um, I've been thinking a lot and I just don't see myself confessing to the truth that you believe. But I want-, I keep thinking of ways to convince myself-, to lie to myself.

HEYES: Well, it's-, okay. Hang on. It's not the fact, okay-, it's not the fact that you have to convince yourself. The . . .

THAHER: I . . .

HEYES: . . . fact is you know that.

THAHER: No. I wanna convince myself . . .

HEYES: Yeah.

THAHER: . . . out of my own intrinsic . . .

HEYES: Yeah.

THAHER: . . . value or whatever. Because I feel like we bonded so much in this room, more than anyone in my whole life. Not because you're only wise, but most people who I run into who have wisdom, they never share it with people. Because they're lacking of something. And I think, think that's fatherly love. And that's why I feel like you're more of a father to me than my own father and even myself. Because even though I've tried to be my own father my whole life, obviously there . . .

HEYES: Yeah.

THAHER: . . . is gonna always be a piece that I'm not gonna cover.

HEYES: Right.

THAHER: And . . .

HEYES: But it's like . . .

THAHER: . . . that's why I feel like I owe it to you to lie.

HEYES: No. I don't want you to lie. I don't want that.

THAHER: Then I'm gonna tell you from the very beginning, my opinion is not going to change.

[Emphasis added].

[77] Det. Heyes suggested to Mr. Thaher that there were three witnesses who had been present at the stabbing who could identify him, which was untrue. Mr. Thaher responded that he did not "believe any of this to be honest" and that it was a "setup". Det. Heyes then suggested that "forensic people" had evidence of his presence, which was also untrue. Mr. Thaher again responded that he had been "set up".

[78] Mr. Thaher once again asked for access to Facebook or his iPhone to help him remember that day. Det. Heyes responded that "you don't have to look at that". He suggested that Mr. Thaher was trying to "erase that part of the day".

[79] Det. Heyes returned to drawing comparisons between Mr. Thaher and his son and told him that Bradley had been arrested for assaulting somebody for no reason. Mr. Thaher told him that he had "hurt innocent people, but not to these lengths" during "social experiments". Det. Heyes once again suggested that Mr. Thaher had "made a mistake" in committing the offence:

THAHER: We have a difference of beliefs my friend.

HEYES: Yeah. And we do. But . . .

THAHER: It doesn't mean it's a reality.

HEYES: . . . but, but the . . .

THAHER: Which is beliefs.

HEYES: But the fact is . . .

THAHER: I'm the schizophrenic, my reality is delusional. You're the adult, you're the, uh, well respected, uh, authoritative-, not only authoritative, but political figure so everyone will take your word over mine.

HEYES: No, they won't. And I'm not here to take everybody's word over yours. That's why I'm here to talk to you about this. Because, you know what? The police have done a good job on this. Not-, it's not my case, it's not my investigation. I was just asked to come and talk to you. And I think that was nice of them, because I think you and I have connected. And, and, uh, sitting here talking to . . .

THAHER: First of all . . .

HEYES: . . . you . . .

THAHER: . . . I'd like to say, um, sorry, sorry, I'll just let you continue.

HEYES: But the fact is, you know, they've done good work.

THAHER: And I . . .

HEYES: They . . .

THAHER: . . . appreciate that.

HEYES: . . . they've done forensic testing, they've gone and grabbed all the video around that area.

[Emphasis added].

At this point, Mr. Thaher suggested that if he could see the victim of the stabbing, then if he had been responsible he would remember. This is one of several instances where Mr. Thaher appears to be willing to trust Det. Heyes over his own memory.

[80] At this point, Mr. Thaher was lying on the ground. Det. Heyes was leaning over him, with his hand placed on Mr. Thaher. Det. Heyes continued to insist that Mr. Thaher was responsible for the offence:

HEYES: Okay. And, and that's okay. I know you hurt him. I know that and so do . . .

THAHER: Hurts.

HEYES: . . . you. I know, I know. Hurt, I know. That's exactly what you did, you hurt him. That's right. And thank you, thank you. Because it's not you. You need to sit up here, 'cause this, this is hurting [Mr. Thaher had been lying on the floor]. But I appreciate that. 'Cause you did hurt-, and I know you hurt him, you know that. I know. And you didn't mean to hurt him. It just something that got out of control. That's all it was. Just like my son. Just like the time that I was just trying to explain to you about the, the reason why he got arrested for punching the kid in the face. I've got just as much pain going through my body right now talking to you. And do you know what? I gotta tell you right now young man . . .

THAHER: The thing is I'm trying to . . .

HEYES: I know.

THAHER: . . . feel this pain. I can't.

HEYES: I know.

THAHER: I can't anymore, I repressed it too deep.

[Emphasis added].

At this point, it appears that Mr. Thaher was beginning to accept Det. Heyes's earlier suggestions that he has somehow repressed his memory of the offence.

[81] Det. Heyes then began to speak at length about his sons. He said that Mr. Thaher was very similar to his son who had died. At this point, Mr. Thaher began to cry and breathe very deeply, prompting Det. Heyes to say "It's okay. Let it out". Mr. Thaher then stopped crying:

THAHER: Unfortunately I just can't cry. I try-, as hard as I try . . . .

HEYES: I know.

THAHER: . . . it just-, it fades.

HEYES: I know.

THAHER: And I have to go somewhere else just to . . .

HEYES: Yeah. It's okay. But the fact . . .

THAHER: . . . correct my . . .

HEYES: . . . is . . .

THAHER: . . . reality.

[82] Mr. Thaher told Det. Heyes that he still had no memory of the offence. Det. Heyes again suggested that the memory was "suppressed":

HEYES: It's supressed, it's in the back, it's there, you just gotta bring it forward. You just gotta bring it forward, that's what it's all about, just bringing it forward.

THAHER: Sir, may I ask, have you ever been a professional in this field, psychology?

HEYES: I haven't been a professional in psychology but I've taken some courses in relation to memory and cognitive, you know, memory recall, different things like that. I'm not as smart as you.

THAHER: I just realized it 'cause of this, this is, this is something we have in common.

Det. Heyes agreed that he and Mr. Thaher had a lot in common and told him that he was the only person he had interviewed whom he had told about his son who died. Mr. Thaher replied "And that's the more reason for me to lie". Det. Heyes told Mr. Thaher that admitting the offence would not be lying.

[83] After some further discussions, much of which involved more comparisons between Mr. Thaher and Det. Heyes's sons. Det. Heyes then told Mr. Thaher that he had hurt his wife by yelling at her and had hurt Bradley by holding him against a wall. However, he had always accepted responsibility for these actions, as should Mr. Thaher. The following exchange then took place:

THAHER: I can't remember.

HEYES: But you know that's what happened. You know that.

THAHER: I want to believe.

HEYES: Yeah. Uh, but you do believe. You do believe me because you know I'm being honest with you and that's the difference. 'Cause you know I'm not lying to you.

[Emphasis added].

It appears that at this point, Mr. Thaher wanted to remember committing the offence. Det. Heyes essentially invited him to accept his word for it that he did.

[84] Mr. Thaher then began to speak about seeing open lockers "in particular numbers that might have been of personal relevance to me". Det. Heyes told him to discuss what had happened on Friday and to describe going near the Tim Hortons:

THAHER: Tim Hortons. All the relevance is this, this place has.

HEYES: I know, I know.

THAHER: I'm sure you know. I'm sure you've done your research.

HEYES: I have. But that's why I ask you.

THAHER: Uh, oh, where do I start?

HEYES: Start from . . .

THAHER: Tim Hortons. I never even knew this place had so much relevance to me.

Mr. Thaher told Det. Heyes that he still could not remember. He thought about a Tim Hortons in Markham because "I have to think of this in order to think of something that I believe does not exist."

[85] Upon being further pressed about the details of that day, Mr. Thaher told Det. Heyes that he was "trying my best to get to that point without having to rely on Facebook or my iPhone."

[86] After further discussion, Det. Heyes returned to suggesting that Mr. Thaher was a good person who had made a mistake but that he had to now admit it. Mr. Thaher replied that he was "still not ready" and "still can't believe this". He asked "Where do I start from? Do I start from Friday and then just deduce what happened based off this schedule?" The interview then continued as follows:

THAHER: Based off deduction, based off what the police are saying that I committed-, I'm shaking right now 'cause I don't believe myself.

HEYES: No, you do,.

THAHER: I don't.

HEYES: No, you do.

THAHER: I really . . .

HEYES: Morad.

THAHER: . . . don't.

HEYES: Morad, you do. That's the difference.

THAHER: I really don't . . .

HEYES: This is where. . .

THAHER: . . . believe I committed this crime.

HEYES: Morad? I know you don't want to believe it but you know you did.

THAHER: I want to believe it.

HEYES: No. You know . . .

THAHER: I'm trying . . .

HEYES: . . . you did.

THAHER: . . . my best right not now to believe it just for your . . .

HEYES: You did.

THAHER: . . . sake.

HEYES: Morad?

THAHER: And for my sake too.

[Emphasis added].

Mr. Thaher then began to talk about having a lot of fears. When asked what he was fearful of, he replied "just going outside, opening doors, walking . . ." Det. Heyes promised Mr. Thaher that he would get him help for his fears.

[87] Following some more discussion, Det. Heyes left Mr. Thaher alone in the room for 27 minutes from 10:23 to 10:50 a.m.. When he returned, Mr. Thaher announced that he had decided that it was the perfect time to "quit my weed" and his "experiments". He also spoke about a girl that he loved and wanted to marry. The interview then returned to Det. Heyes insisting that Mr. Thaher remembered committing the offence and him denying this.

[88] At one point, Det. Heyes told Mr. Thaher that it would be important for the victim of the stabbing to know why it had happened and that the police would like to be able to tell the victim what Mr. Thaher had said. Mr. Thaher then asked whether he could write a letter. When asked what he wanted to write, he replied "I don't know, I'll have to remember it first. I'll have to go to my Facebook, my pictures . . . ." Det. Heyes replied that he was unable to get Mr. Thaher access to Facebook or his phone.

[89] Det. Heyes told Mr. Thaher that the video from the Tim Hortons was in the process of being "enhanced" and asked him what the video would show:

THAHER: Um, what I believe it will show you is-, I have no clue.

HEYES: Well, you do.

THAHER: I, I think it will show me doing a crime.

HEYES: Yeah.

THAHER: I think so.

HEYES: Yeah.

THAHER: But I think I will see it and I will not remember it.

HEYES: Okay, but thank you. It'll show you doing the crime and I know, that's what I mean.

THAHER: Unfortunately I won't be able to recall.

HEYES: It's okay, but it's gonna show you committing that crime. Thank you.

THAHER: Which is what matters.

At this point, Mr. Thaher now seems to be doubting his own memory. It will be recalled that he had earlier been told that the video showed him at the scene of the crime. All of these claims about the video were false.

[90] Det. Heyes then showed Mr. Thaher the photograph that had been provided to the police from the sandwich-throwing incident. After discussing that incident for some time, Det. Heyes returned to the anticipated "enhanced" video of the stabbing incident. Mr. Thaher no longer believed that it would show him, but added that he had "tried my best to just change my beliefs".

[91] At one point, Mr. Thaher attempted to describe his activities on Friday using a diagram. The diagram (which was made an exhibit) and the description are incomprehensible. At one point, he drew a fish. At another point, he drew what he described as "stipples", which he said were "variable" because his "thoughts are all over the place". He said that he had gone to a shawarma restaurant called Lazeez on Friday morning on his bicycle. He continued to maintain that he could not remember being involved in the stabbing:

THAHER: Un-, until you show me a picture like this that shows me actually-, some sort of evidence linking me to this . . . or until you show me camera surveillance of me being at the Tim Hortons early that day, then I just can't believe it for myself because this is undeniable proof, no, no, no doubt.

Mr. Thaher told Det. Heyes that he wanted to lie to him because he felt like Det. Heyes was the father he never had.

[92] Det. Heyes explained to Mr. Thaher why he would not show him the video of him committing the offence:

HEYES: . . . You don't need to see video because you know why, 'cause once you see that video you're gonna get so emotional, so upset with yourself for what you did. That's what's gonna happen and I don't want that. It's hard enough now as it is.

THAHER: I, I believe you right now. Like I really, really . . .

HEYES: It's hard enough as it is.

THAHER: You just made me believe you. I mean, like hundred percent now. Now I just felt some remorse. I was waiting for that actually.

[Emphasis added].

[93] A short while later, the following exchange took place:

THAHER: (Inaudible) something I don't remember. Oh, my God, I, I-, did I actually do this?

HEYES: No, no, you know that. Let's not go there.

THAHER: I'm starting to believe it . . .

HEYES: No.

THAHER: . . . without even remembering.

[Emphasis added].

Det. Heyes insisted that Mr. Thaher could remember and that he was "playing games". Mr. Thaher then said:

THAHER: No. I didn't even-, I don't even remember this still. I just accept this now that this is what I did. I don't remember it but I'll accept it because I trust you that much.

HEYES: Well, no, I don't want you to accept it. I don't want you to accept it on my word. I don't want that.

THAHER: You told me enough already. You told me . . .

HEYES: I know.

THAHER: . . . there's strong reason to believe that I'm . . .

HEYES: But . . .

THAHER: . . . the number one suspect for this crime.

HEYES: Yes, but, you know what, Morad look at me, look at me, it needs to come from you, not me.

THAHER: Okay, it will take time, you just have to be patient with me.

[Emphasis added]

[94] After Det. Heyes spent more time encouraging Mr. Thaher to confess, he asked him about the weapon that had been used in the stabbing. Mr. Thaher at first said that he had "probably used words" and denied using a weapon. When asked again, he responded that he had used "hearts", then "a double edged sword". He then denied committing the offence. Det. Heyes accused him of lying. Mr. Thaher responded "I know I'm not telling the truth either but it's just because you need to be patient with me". Later, Mr. Thaher said "I know what you want me to say, but I just can't say it".

[95] By this point, it was 11:40 a.m. Det. Heyes left the room.

(iii) The Last Hour and a Half

[96] Within three minutes of Det. Heyes's departure from the room, Mr. Thaher lay down on the floor. He remained in the same position until Det. Heyes returned at 12:14 p.m., clearly asleep. By this time, Mr. Thaher, who was obviously seriously mentally ill, had been in the room for almost six hours. It had been over 10 hours since he had been arrested. The only nourishment he had been provided was a cup of hot chocolate and a tea biscuit at around 7:00 a.m. He had been offered nothing since, nor had he been offered an opportunity to use the bathroom. In my respectful view, the fact that Mr. Thaher fell asleep on the interview room floor at this point was a clear sign that it was time to terminate the interview, at least until Mr. Thaher was given an opportunity to eat and rest. Det. Heyes chose not to do so.

[97] When Det. Heyes returned to the room, he told Mr. Thaher that he had "one picture so far that shows you exiting the Tim Hortons . . . and going across a parking lot towards Brittania." He told him that it showed that he was "wearing the same jacket you were wearing that night, same pants, shoes". Upon looking at the picture, Mr. Thaher said that he still could not remember being there, but that there was "no doubt" that it was a picture of him because he could "tell from the shadow" that it was his figure.

[98] The Crown seeks to rely on Mr. Thaher's purported recognition of himself in the picture as an admission of guilt. The picture Det. Heyes showed to Mr. Thaher was made an exhibit on the voir dire. It depicts what is essentially a blurred silhouette of a person. The person's features are not discernible in the picture. It is impossible to tell what the person is wearing. Mr. Thaher could not possibly have recognized himself in the picture.

[99] In my view, there is a very real possibility that after being interrogated for two hours by Cst. Wood and six hours by Det. Heyes and tired enough to fall asleep on the floor, Mr. Thaher had reached that stage where Det. Heyes's insistence that the police had evidence demonstrating his guilt caused him to doubt his own memory, which is why he accepted Det. Heyes's assertion that it was him in the photograph. I have a reasonable doubt as to the voluntariness of this purported admission.

[100] I am fortified in my conclusion by what transpired next. Although he claimed to have recognized himself in the photograph, Mr. Thaher continued to express scepticism with respect to his own guilt, although more equivocally than before. Det. Heyes told him that the police also had video footage from inside the restaurant showing that he had committed the offence. Det. Heyes then questioned him about the weapon that was used:

HEYES: What did you have that day? What'd you have in your pockets that day?

THAHER: I would assume that maybe some tools for weed, but I wouldn't be carrying a-, scissors probably with me. I could be wrong though.

HEYES: Yeah.

THAHER: Just like how I'm wrong about this. The . . .

HEYES: Yeah.

THAHER: . . . the lines, you said they mean nothing to me, but they do because I've been . . .

HEYES: Mm-hmm.

THAHER: . . . I've been using these lines to construct my reality my whole life.

HEYES: It doesn't matter. Let's, let's stop that. Reality now, Morad, look at me. Reality is not those lines.

THAHER: I know it's not but they're . . .

HEYES: Reality is you knowing.

THAHER: It's helped me . . .

HEYES: Listen to me.

THAHER: . . . get to this point.

[Emphasis added].

The lines Mr. Thaher was referring to that he used to "construct his reality" were some sort of lines in the photograph Det. Heyes had shown to him of a figure in the parking lot.

[101] Mr. Thaher continued to tell Det. Heyes that he could not believe that he had committed the offence. This is, in my view, somewhat different than a denial of having committed the offence. Det. Heyes continued to respond by asserting that Mr. Thaher was guilty and that the issue of whether or not he was responsible was not up for discussion, a classic feature of the Reid technique:

HEYES: Morad, I'm not here to argue with you, I told you before. I don't wanna argue with you.

THAHER: But you're using these things to do deduce that I am the . . .

HEYES: You-, but you . . .

THAHER: . . . suspect even though . . .

HEYES: But you know . . .

THAHER: . . . anyone else will use these same things too, which is why I respect your way of thinking, but at the same time it's getting to my head right now. Because I'm . . .

HEYES: I know it is, 'cause you don't like it.

THAHER: It's forcing me . . .

HEYES: 'Cause you don't like it.

THAHER: Obviously.

HEYES: No. Exactly, you don't like it. And you know, you know that Mark is being truthful with you and Mark has not lied to you once here.

THAHER: I know that.

This is a fairly clear indication that Mr. Thaher is beginning to accept Det. Heyes's repeated assertions of his guilt despite his own lack of memory.

[102] Shortly thereafter, Det. Heyes suggested that Mr. Thaher had committed the offence because the victim had somehow provoked him, another feature of the Reid technique:

HEYES: If this person, if this person said something to you or did something that deserves something, then let me know. (Inaudible) . . .

THAHER: I have no idea who this person is.

HEYES: Okay, thank . . .

THAHER: I have no idea what happened.

HEYES: Okay. Okay. But . . .

THAHER: This is the truth.

HEYES: . . . but you know, you know what happened. You went in there.

THAHER: I just have an implicit idea of what happened based off everything you've told me and based off everything that's happened up until here. But-, and based off this photo that I'm trying very hard to remember, but I still cannot piece together the full picture.

[Emphasis added].

[103] At this stage, Det. Heyes began to speak to Mr. Thaher in a reassuring tone, once again repeatedly comparing him to his sons. He told him that the victim understands him and forgives him. At one point, the two men hugged. Det. Heyes told Mr. Thaher that he was going to get him some help so that "things like this don't happen again" and so that he could "live a good life".

[104] Det. Heyes later returned to the suggestion that the victim had somehow provoked the attack:

HEYES: . . . What do I tell this man? What do I tell him, Morad? Unless he's to blame for this, unless he was calling you names . . .

THAHER: No. No.

HEYES: . . . or something.

THAHER: No, no, no, no. No one is to blame for something like this. If something like this was to ever happen, the bad guy is always to blame, not the good guy.

HEYES: Well, I'm not saying you're-, no . . .

THAHER: No the innocent guy.

HEYES: I'm not saying . . .

THAHER: I mean, maybe he's not a hundred percent innocent . . .

HEYES: Okay.

THAHER: . . . but that doesn't give me the excuse to do whatever I did. I'm using only using-, and I'm using quotation marks right now is 'cause I don't remember it.

HEYES: Yeah.

THAHER: But once I do, obviously I'll stop using those dumb quotation marks that, you know, just symbolize sarcasm. But I still wanna remember this a-, even if-, though it will be a painful memory, I have to re-, etch this into my heart so that I never forget what it's like to hurt someone like this again.

[Emphasis added].

[105] It was soon after this that Mr. Thaher agreed to write the apology which the Crown seeks to rely on:

HEYES: . . . But I just need to know what is it that I tell this man? Or what do I tell the investigators to tell this man from you?

THAHER: Sorry won't do obviously. I'll have to write something myself.

[106] Mr. Thaher continued, however, to say that he did not want to believe that he had done it and that he was not ready to accept that he had. Det. Heyes responded as follows:

HEYES: . . . but you know what though, Morad, we're past that now. We're past it. Totally past it so let's stop that right now, that I don't wanna believe it 'cause you know full well.

THAHER: Okay, 'cause my . . .

HEYES: You know . . .

THAHER: . . . thoughts were just about to go somewhere else and you saying I'm past that help me to cancel . . .

HEYES: No.

THAHER: . . . that out.

HEYES: No, we're not-, we're, we're past that already that you don't (inaudible) . . .

THAHER: Stupid head of mine.

HEYES: But . . .

THAHER: Sometimes I just gotta knock things right in.

While saying this, Mr. Thaher knocked himself repeatedly on the head.

[107] Later, Mr. Thaher told Det. Heyes that when he came to remember committing the offence, he was "bound to feel some sort of remorse that will help me feel human".

[108] Det. Heyes again asked Mr. Thaher what weapon he had used. Mr. Thaher responded that he could not remember. He told Det. Heyes that the only things he carried with him were scissors that he used as a "tool for weed". As noted earlier, those scissors had been seized by the police.

[109] Mr. Thaher continued to express doubt about his guilt, but also said that he had to "start seriously considering the possibility that I committed this act of whatever that I don't even recall".

[110] Mr. Thaher asked Det. Heyes whether the victim of the stabbing had been seriously injured. Det. Heyes said that he had not and that he had only been taken to the hospital to make sure that he was okay. Mr. Thaher responded:

THAHER: How can I be so oblivious of all the signs? You know, I'm not gonna blame myself, but at the same time he was hurt and I didn't even remember and I stomped all over him just like a fly.

There was no evidence that the victim had been "stomped on". Mr. Thaher told Det. Heyes that he wanted to remember "the most painful part" which was him "committing the act". Later, Mr. Thaher suggested that the fact that he could not remember committing the offence "goes to show how imbalanced and chemically imbalanced I really am".

[111] Det. Heyes suggested to Mr. Thaher that if the victim were able to forgive him, then he could focus on his own family. Shortly thereafter, for the first time in hours Det. Heyes provided Mr. Thaher with some water.

[112] Shortly after 1:00 p.m., Mr. Thaher began to cry, which Det. Heyes suggested were "tears of relief". Soon after, Det. Heyes asked again whether Mr. Thaher wanted to write something to the victim. Mr. Thaher replied that he was "ready now". He was provided with paper and a pen and left alone for 14 minutes. He wrote the following:

Dear [(Person)/(victim)] I cannot recall: . . . (Yeto)

I do not want to tell you how 'sorry' I truly am bc (because) you have probably heard the two words a thousand times before. I am Sincerly [sic] sorry that I hurt you.

"I have No Excuses."

It is 'not' important that you forgive me.

What is important is that you forget me, and this pitiful existence of mine.

I have caused you too much pain. . . So much that I wish for you to move forward without looking behind at this Terrible incident. I did not wish to ever cause you harm . . . in doing so I have created a painful (emotional) scar that you will remember with bitter, and yet clear sense of clarity. You can feel free to toss this paper out just like I have mistreated you. . . . . I just hope you move on [(friend)]. You do not ever have to Forgive me, but forget.

[113] Shortly before terminating the interview, Det. Heyes asked Mr. Thaher why he had "opened up to him". He responded "I trusted you". While Crown counsel submitted that this response was evidence of voluntariness, in my view it can also be seen as an indication that Mr. Thaher accepted Det. Heyes's assertions of his guilt over his own memory.

C. Conclusion

[114] The second interview employs the inherently coercive Reid technique and is marked by several of the characteristics of a "non-coerced-persuaded confession". Mr. Thaher's confidence in his own memory is undermined, largely based on the presentation of false evidence. The interrogator offers explanations for what he believes are disingenuous claims of a lack of memory, in this case some sort of "repression". All of this happens in the context of an interview that lasts seven and a half hours and which takes place shortly after an earlier two-hour interview. The subject is seriously mentally ill, fatigued enough to fall asleep on the floor of the interview room, offered very little food and never offered the use of a washroom. While not determinative, the provision of these basic human needs will often go a long way towards establishing voluntariness: R. v. N.L., [2009] O.J. No. 1902 (S.C.J.) at para. 35.

[115] For the potentially inculpatory portions of the second statement to be admitted, the Crown would have to prove beyond a reasonable doubt that Mr. Thaher's utterances, made after hours and hours of denials, were the product of a choice he made and not the combination of oppressive conditions and the presentation of false evidence leading him to doubt his own memory. I have a reasonable doubt on this issue. As result, the statements will not be admitted.

V. COMMITTAL

[116] The Crown correctly concedes that absent the statement, there is insufficient evidence to justify committal. Although it is not necessary for me to decide, in my view if the statement were admitted, the "apology" would likely meet the test for committal, but barely so. The apology is entirely bereft of any detail. At no point during the nine and a half hours that Mr. Thaher is questioned did he provide the police with any information that they did not already know. He never indicated the nature of the weapon that was used, other than referring to his scissors. The scissors were seized, but I have heard no evidence that there were any traces of the victim found on them. Although Mr. Thaher mentioned to Det. Heyes that the victim was Asian, this information had been provided to him earlier by Cst. Wood. As well, at one point Mr. Thaher told Det. Heyes that he guessed that the victim was two years older than himself. Mr. Thaher was 21 years old at the time. According to the medical records that were filed, Mr. Ng was 45.

[117] While it is may have been open to a reasonable trier of fact to convict on the basis of the statement and the vague descriptions provided by the witnesses, in my view it is unlikely that any reasonable trier of fact would have done so.

VI. DISPOSITION

[118] For the foregoing reasons, Mr. Thaher is discharged on all counts.

[119] I wish to thank both counsel for the helpful and professional manner in which they conducted this preliminary inquiry.

Released: March 3, 2016

Justice P.A. Schreck