DATE: 20021129

DOCKET: C37978

COURT OF APPEAL FOR ONTARIO

FINLAYSON, MOLDAVER and FELDMAN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Marc Schiffer

for the appellant

Respondent

• and -

Howard Leibovich

for the respondent

ABDI AHMED

Appellant

HEARD: October 8, 2002

On appeal from conviction by Justice Kerr of the Ontario Court of Justice on November 20, 2001.

FELDMAN J.A.:

[1] The appellant was convicted of the offence of robbery of a wallet containing cash from the complainant, Mohamed Gulad, on September 26, 2001. The appellant was arrested on September 28, 2001. While the complainant identified the appellant as the perpetrator at trial, he was unable to identify the appellant from a photo line-up shown to him by the police some time after the appellant’s arrest. Upon arrest the appellant denied involvement in the robbery, but subsequently confessed during a police interview later that night. The main ground of appeal relates to the ruling of the trial judge that the confession was voluntary.

[2] The trial judge found that the identification evidence, standing alone, could not form the basis for a conviction, so that the confession was necessary to found the conviction. For the reasons which follow, I would allow the appeal, set aside the conviction and order a new trial on the basis that the trial judge erred by failing to give sufficient reasons for his findings on the voir dire and therefore failed to adequately address the issues set out in this court’s decision in R. v. Moore-MacFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737.

FACTS

(a) Evidence Regarding the Event and the Arrest

[3] The complainant testified that on September 26, 2001, he had consumed seven or eight bottles of beer and described himself as drunk. After midnight he went out to a local donut shop for some food. There he encountered two young men sitting outside who asked him to buy them coffee, which he did, and for a bus ticket, which he gave them. He then walked back home and entered the elevator of his building. The complainant testified that the two men he had encountered at the donut shop were in the elevator. The complainant pressed the button for the eighth floor and they pressed the seventh. When the elevator stopped at the seventh floor they held the door. He asked them to leave the elevator as he was going to the eighth floor. They all spoke Somalian. The men refused and asked for his wallet. The complainant said he had no money. One man pulled a knife and held it to the complainant’s neck and asked for the wallet, which he gave him. The wallet contained $60 and all of the complainant’s identification including his bank card, his driver’s license, his OHIP card and some photographs. The men then left and the complainant called the police.

[4] In court the complainant identified the appellant as the man with the knife, but he was unable to identify him from a photo line-up shown to him by the police some time after the event. In court the complainant said that the perpetrator had “big afro hair … like Don King”, broken teeth and was a wearing a blue bandanna. At trial the complainant was shown the wallet that was found in the possession of the appellant on his arrest and denied that it was his wallet.

[5] The notes of the officer who interviewed the complainant that evening contained the following description:

Met in hallway. I.D. complainant. Male, Somalian. Is five, six. Skinny, afro hair, with a pick. Black bandanna, possibly paisley, and that the bandanna fell off. Black baggy pants, black jacket, bad teeth, with the knife.

The description was read to the complainant and he was asked whether it accurately described what he told the officer. The complainant responded that the bandanna was blue. He also said, in response to a question by the trial judge, that he did not use the word “paisley” and did not know what it meant.

[6] With respect to the appellant’s hair, the complainant first agreed that in the photo line-up picture, the appellant’s hair was sticking up and was not the way it appeared in court. He then said that in the photo it was combed the same way as it was in court. When the trial judge examined the photo line-up, he was unable to pick out the appellant, and noted that in the photo the appellant “… has sort of much more fluffy hair. It’s sort of fluffed out, isn’t it? Whereas today it is sort of sitting on top of his head.”

[7] The appellant was arrested two nights after the robbery when he was observed by police in front of the same donut shop. He was observed wearing a black puffy coat and a dark paisley bandanna. The appellant was described by the arresting officer as having a big afro hairstyle. At trial, the arresting officer gave the opinion that in the photo line-up photograph the appellant had an afro, but it was a little different than when he first saw the appellant that night. With respect to the appellant’s teeth, it was stipulated that the other arresting officer (who did not testify) observed that the appellant had “crooked teeth”. At the same time, the trial judge noted that the complainant had described the perpetrator’s teeth as chipped, not crooked.

(b) Evidence on the Voir Dire

[8] At trial a voir dire was held to determine the voluntariness of a confession the appellant made to Detective William Johnston at the police station on the night of his arrest. Detective Johnston testified that his duties in the C.I.B. office were to investigate prisoners brought in by uniformed personnel, and that that was what he did in this case. The appellant was brought in by the arresting officer at 3:35 a.m. and placed in interview room “B”. The arresting officers told the detective that the appellant was under arrest for a robbery at knifepoint of $60 which had occurred two days before. The detective testified that he entered interview room “B” himself and told the appellant he needed certain information from him to complete their paperwork and that at that point, the appellant just “blurted out” that he had lied to the other officers and confessed to having committed the robbery. Detective Johnston’s account of their exchange was as follows:

With this information I entered room “B” to speak with the accused party, to obtain particulars of him regarding the necessary particulars I needed for the record of arrest, such as age, height, weight, address, etc. I had virtually no sooner got into the room when the accused stated – and this is a quote – “I lied to the other officers.” … At this time I said “What do you mean?” and his reply was, “I did the robbery.” At this time I advised the accused to stop, that I would call duty counsel for him and I would speak with him again after he had spoken to a lawyer. At this time I left room “B”. I called duty counsel for the accused, and at approximately 4:11 a.m. duty counsel by the name of Damien Paul, … [h]e called and I explained the situation to Mr. Paul. I let him speak with the accused. At approximately 4:25 a.m. I entered room “B” again and I did a series of questions and answers with the accused…

Question: “Have you an opportunity to speak to a lawyer?”

Answer: “Yes.”

Question: “Before you spoke to duty counsel you told me that you had done the robbery. What can you tell me about it?”

Answer: “I can’t talk to anybody until I talk to a lawyer with me.”

Question: “What do you mean?”

Answer: “When my lawyer is with me then I can talk. Now I just can’t talk.”

Question: “Are you telling me that you do not wish to speak to me about the robbery?”

Answer: “I’m sorry. I can’t talk unless my lawyer is with me.”

At that time I left room “B”. I continued with the paperwork regarding the accused. I made certain notations regarding his address, age, date of birth, the fact that he had no family in Canada. He had a fuzzy afro and had crooked teeth. I then noted the charges and the victim’s information, and the accused was held for a show cause hearing.”

[9] Detective Johnson said that he did not use force, threaten or suggest to the appellant that that it would be better if he spoke or gave a statement. He said that what he described was the entirety of the conversation he had with the appellant. Detective Johnston also testified that he wrote down what the appellant told him into his notebook immediately after he left the interview room.

[10] In cross-examination, the detective acknowledged that he had the appellant’s name and address before entering room “B”. He said he went into the interview room without a video or audio recorder, although he acknowledged on cross-examination that the appellant had been videotaped both in the sallyport and at the booking desk of the police station. He also testified that he went in by himself, without a partner. He said he went in to obtain the accused’s particulars which he then listed as his name, age, height, colour of eyes, weight, next of kin. He had a preprinted form to fill out, but he did not have it with him in court. The detective acknowledged to the judge that he was going to give the appellant the opportunity of giving a statement “if he wished to,” but that he would not do so unless the accused had talked to duty counsel.

[11] The appellant testified on the voir dire. He said that he has never been arrested before. He was transported to the police station in a police car and strip searched at the station. He had told other officers upon arrest, search and in the car that he did not commit a robbery. He was then put into a room and about ten minutes later, Detective Johnson came in. According to the appellant, the following exchange took place:

…he asked me if I did it… I said nothing. “I didn’t do it”… And then he goes, like, “Be honest with me.” And I was like, “I’m honest.” Then, he was like, “Honest, honest.” Then he ask me “Do you want to go home?”… I said, “Yes”, and then he said “You want to go home. Tell me the truth. You want to go home”… And I was like - he told me, “You want to go home.” I said, “I did it,” because I want to go home…

He testified that he confessed because he wanted to go home and not to jail and because he was scared. He felt that he would be allowed to go home if he said he did it, but he would have to stay in jail if he did not. He also denied that his confession was the truth.

(c) The Ruling

[12] The trial judge made the following ruling on the voir dire:

I need not hear from the Crown in this case. We have heard that there was a robbery committed on September the 26th. Reports were taken by police because they felt the accused’s description matched that of the robber, Arrested him on September the 28th. He was taken to the station. It was admitted by him through counsel, that notwithstanding the fact that he was strip searched at the station, that no untoward violence was used on him. There were no inducements made by the arresting officers. So it boils down to simply the evidence of Johnston for the prosecution on this issue and the evidence of the accused man. Now, I glean from Johnston’s evidence, an officer of 32 years experience, they entered the room not for the purpose of obtaining a statement at all, but for getting some background information, advising him of his rights, giving him a chance to call counsel, which he did later on. And that what he heard was a total bolt from the blue. I find Johnston to be a credible witness. That, of course, is not enough. The accused man claims that Johnston said to him, “If you tell me the truth, if you tell me I did it, you will be allowed to go home. If you don’t you will be kept in jail.” I simply do not believe his evidence on that point. It does not raise a reasonable doubt in my mind. This all happened very quickly after Johnston entered the room. In my opinion, he was very surprised to hear what he heard. But I am convinced beyond any reasonable doubt that he heard it, without in any way inducing the accused to say it. So when I consider all the evidence on this voir dire in its totality, I am convinced beyond any reasonable doubt, to a moral certainty, that this young man decided to simply blurt out a very brief confession, without any inducement whatsoever being held out by Johnston .

The statement was ruled admissible. In convicting the appellant of the robbery, the trial judge ruled that the identification evidence was insufficient to support a conviction, but that “[w]hen you put the identification evidence together with the confession however brief, it leaves the court with no reasonable doubt that the accused man … robbed the victim …”

ANALYSIS

The Admissibility of the Confession

[13] The trial judge was correct that the test to be applied was whether the Crown had met its burden to satisfy him beyond a reasonable doubt that the confession was made voluntarily. The trial judge also acknowledged that the issue of the voluntariness of the confession boiled down to the evidence of the police officer and the evidence of the appellant. This was because the proceedings in the interview room were not recorded in any way. There was also no other witness as the officer chose to interview the appellant alone, both initially and after the appellant had consulted with duty counsel.

[14] Although the most recent case law from the Supreme Court of Canada in R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 and from this court in Moore- McFarlane has stated that it is not necessarily fatal if the police do not record a confession, recording is not only the better practice, but in most circumstances, the failure to record will render the confession suspect. In Moore-McFarlane, Charron J.A. stated (at para. 67):

…in my view, the completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.

[15] After acknowledging that there is no absolute rule requiring recording of statements by police, Charron J.A. set out (at para. 65) the circumstances where an unrecorded statement will be considered suspect:

However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt [emphasis added].

[16] The issue on the appeal is whether this case falls into the category described by Charron J.A. where the unrecorded interrogation of the appellant is suspect, and consequently could not form the basis for a finding of voluntariness beyond a reasonable doubt. The basis of the Crown’s argument both at trial and on the appeal is that there was no need to record the “investigation” (the word used by the detective) because the detective did not deliberately set out to interrogate the appellant. Rather, the detective’s evidence was that his only intention in entering the interview room was to obtain personal particulars from the appellant for the purpose of filling out a form.

[17] In considering the issue, the trial judge did not have the benefit of this court’s decision in Moore-McFarlane, nor of the decision of the Supreme Court of Canada in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 where that court made it clear that a trial judge is required to give meaningful reasons for essential findings which are in dispute and are not clear on the evidence. In Sheppard, Binnie J. stated (at para. 55):

Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.

[18] In his reasons, the trial judge referred to the fact that the detective’s evidence was that he did not enter the room for the purpose of taking a statement, but rather only to obtain some background information, to advise the appellant of his rights, and to give him a chance to call counsel. The trial judge found the detective to be credible. Other than referring to his many years of experience, the trial judge gave no reason for why he believed the detective and failed to analyze his evidence on this crucial point. The trial judge then went on to find that he disbelieved the appellant about the alleged inducement, again without giving any reasons for rejecting the appellant’s evidence and accepting the detective’s evidence on this second critical issue.

[19] The reason our courts have focused so heavily on the desirability of recording the interactions between police officers and accused persons upon arrest, is to avoid these credibility contests at trial on the crucial issue of whether any coercion, oppression or inducement led to the accused to make the impugned statement. This court held in Moore-McFarlane that as long as recording equipment is available, the failure to record will generally preclude a finding of voluntariness, except in the circumstance where the police officer did not set out to interrogate the suspect. Consequently, the question of the officer’s intention is also a critical one on the voir dire. Therefore, where there is no recording, and the issue of the officer’s intention is in dispute, that is one of the circumstances where the trial judge must carefully analyze the conflicting evidence and give reasons which clearly explain why the judge either accepts the evidence of the police officer or officers, or conversely, why that evidence is rejected or is insufficient to satisfy the judge beyond a reasonable doubt.

[20] On the issue of the detective’s intent when he entered the room, counsel for the appellant points to the fact that the detective appeared to be able to complete his paperwork with the appellant’s particulars, although according to his recitation of the two conversations he had with the appellant before and after the appellant spoke to duty counsel, he never asked him any questions about those particulars. Counsel for the appellant suggested that the detective’s statement that he entered the room because he required those particulars from the appellant does not, therefore, bear scrutiny. However, in his reasons, the trial judge did not subject the detective’s evidence on this point to any analysis. The trial judge also did not refer to the fact that when the detective did ask the appellant about the circumstances of the robbery right after the appellant spoke to duty counsel, the detective still did not have any recording equipment. Because he did not refer to this evidence, the trial judge gave no explanation for why he accepted the detective’s assertion that when the detective first spoke to the appellant, he did not have any intention to interrogate him about the circumstances of the offence.

[21] Finally, in making bald findings that he believed the detective and disbelieved the appellant, the trial judge did not make any comment about the circumstances of the confession, including the fact that the appellant abruptly changed his story to the police. Because the trial judge made no assessment of the evidence of the appellant, his reasons did not disclose why the appellant’s evidence that the reason he made the inculpatory statement was that he believed he was offered an inducement, did not raise a reasonable doubt.

[22] In R. v. Browne, 2002 41599 (ON CA), [2002] O.J. No. 3882, released October 16, 2002, this Court, following the Supreme Court of Canada’s decision in Sheppard, reiterated that the failure of a trial judge to deliver meaningful reasons is an error of law. In my view, by failing to analyze the evidence and give reasons for his crucial credibility findings on the voir dire, the trial judge did not adequately address the two issues required by Moore-MacFarlane in order to satisfy the heavy onus on the Crown to prove the voluntariness of the confession beyond a reasonable doubt: first, whether in the circumstances of the case the failure to record the interrogation made it suspect; and if so, second, whether the Crown had provided a sufficient substitute for a recording.

CONCLUSION

[23] As the identification evidence was inadequate and the confession was required to ground the finding of guilt, I would allow the appeal, set aside the conviction and order a new trial.

Signed: “K. Feldman J.A.”

“I agree G.D. Finlayson J.A.”

“I agree M. J. Moldaver J.A.”

RELEASED: “GDF” NOVEMBER 29, 2002