COURT OF APPEAL FOR ONTARIO DATE: 20230630 DOCKET: C69599

Huscroft, Harvison Young and Thorburn JJ.A.

BETWEEN

His Majesty the King Respondent

and

Nadeem Ahmed Appellant

Counsel: Marie Henein and Brandon Chung, for the appellant Catherine Weiler, for the respondent

Heard: May 3, 2023

On appeal from the conviction entered by Justice P. Andras Schreck of the Superior Court of Justice on April 21, 2021, with reasons reported at 2021 ONSC 2971.

REASONS FOR DECISION

A. OVERVIEW

[1] Nadeem Ahmed appeals his conviction on two counts of fraud over $5,000 and one count of knowingly using a forged document, namely letters purporting to be from the Islamabad branch of Deutsche Bank. The only issue on this appeal is whether the appellant’s police statement was voluntary.

[2] The appellant argues the police gave advice that was misleading in respect of the possible immigration consequences, rendering his statement involuntary. He submits that the officer should have told him that his statement could adversely affect his immigration process, or that they did not know whether it would affect his immigration process and he should seek advice. In failing to do either, the appellant claims he was unfairly denied the opportunity to make a meaningful choice as to whether to speak with the police as he did not understand the scope of his jeopardy.

[3] The appellant argues that his police statement should therefore have been excluded from evidence at trial. He further submits that his statement was central to the outcome of the trial and seeks a new trial.

[4] We do not agree. The appeal is dismissed for the reasons that follow.

B. THE APPELLANT’S INTERVIEW with the RCMP

[5] Sgt. Akhasone Samonekeo was the lead RCMP investigator at the time of the appellant’s police statement. He knew the appellant was not a Canadian citizen. He testified that immigration officials told him that the investigation of the appellant “could not have an impact on his immigration process”. Sgt. Samonekeo did not ask the immigration officials about the consequences of a conviction on the appellant’s immigration status.

[6] In May 2017, Sgt. Samonekeo contacted the appellant and asked him to attend an interview. He said that when he called the appellant, “I did tell him that he was under investigation and that we needed to speak with him, but he did not need to come and speak with us.” The appellant agreed and arrangements were made for him to attend an RCMP office in downtown Toronto.

[7] On May 18, 2017, the appellant was interviewed by Sgt. Samonekeo and another officer, Cpl. Daniel Ferrante. The office door was unlocked throughout the interview and the interview was video and audio recorded. At the outset of the interview, the appellant was told he did not have to make any statements, could leave when he wanted, and ought not to feel pressured to stay.

[8] Sgt. Samonekeo then said, “Um, so, but I want you to understand also that anything you do say today uh, can be used in court. ‘Kay do you understand what that means?” The appellant asked, “Whatever you talk, whatever I say you can use that thing as a [sic] evidence against me in the court right?” Sgt. Samonekeo replied, “Yes, that’s right, that’s right. So against yourself or…”

[9] The appellant said he was awaiting the completion of his immigration process.

[10] Sgt. Samonekeo replied that he and his colleague had “nothing to do with [the] immigration process” and that, “Um, whatever happens here today, ‘kay um, has nothing to do with the immigration, I guess request or whatever that you do-, the process that you’re going through right now.”

[11] The appellant knew others had spoken to police about the alleged fraud and said: “Thanks [sic] god you called me.…I want that you should have a clear picture. … [N]o matter about immigration but, you are more important like, right now, you are in contact with me, so I will do the best to work with you first.”

[12] The officers explained that he was being interviewed in respect of the offences of fraud, possession of property obtained by fraud, and money laundering. The appellant was asked about his business dealings and his relationship with Khan.

[13] Over the course of the interview, the appellant made a number of significant inculpatory statements as well as some exculpatory statements.

[14] At the conclusion of the interview, the appellant was told that the police would consider what he had said and other information and decide what would happen. Sgt. Samonekeo said “we needed…to warn you about these offences. Because uh…your name came up…as a suspect”. Sgt. Samonekeo acknowledged that at the time the appellant gave his police statement, the RCMP had reasonable and probable grounds to arrest the appellant but wanted to wait until the investigation was complete. Among other things, he said that before arresting the appellant, he wanted to verify some of the information provided and consult with the Crown.

[15] On March 27, 2018, the appellant was arrested and charged with two counts of fraud and one count of forgery.

C. The Voluntariness Ruling

[16] The respondent sought to rely on the police statement and a voir dire was held to determine whether the respondent had proven the voluntariness of the statement beyond a reasonable doubt.

[17] The respondent submitted that there was no oppression or police trickery, the appellant was sufficiently cautioned and Sgt. Samonekeo’s responses to the appellant’s questions about immigration were not problematic such that the statement was voluntary.

[18] The appellant took the position that he did not understand the scope of his jeopardy because he was never told the RCMP had reasonable and probable grounds to arrest him, and police failed to use the standard caution and that this offended the confessions rule as he was deprived of important information necessary to make a meaningful and voluntary choice about whether to speak to the police. The appellant did not raise the issue of his immigration consequences as a reason to exclude his statement.

[19] The trial judge held that the Crown had proven voluntariness beyond a reasonable doubt.

[20] First, the trial judge found no oppression or police trickery and held that the appellant had a subjective awareness of what was at stake. He held that the appellant had an operating mind: he knew police were investigating a fraud and money laundering offences. He knew that he could be charged and so had a general sense of his jeopardy.

[21] Second, he held that the failure to advise the appellant that there were reasonable and probable grounds to arrest him at the time he gave his statement, was not information the appellant required to make an informed and voluntary decision as to whether to speak to police. He noted that the police may arrest a suspect when they have reasonable and probable grounds, but have considerable discretion and are not required to do so. Among other things, they may wish to conduct further investigation, which he accepted as the reason for which the police exercised their discretion not to arrest him at that point.

[22] Third, the trial judge noted that there was no need for a formal caution as the necessary information was conveyed. The appellant was told he did not have to talk to the police, he could leave any time, and he had a general sense of his jeopardy. The appellant understood that “whatever I say you [the police] can use that thing as a [sic] evidence against me in the court.”

D. ANALYSIS AND CONCLUSION

[23] In R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at para. 43, the court held that where the correct test is applied, "A finding of voluntariness calls for deference unless it can be shown that it represents a palpable and overriding error." The analysis is a contextual one “in which bright-line rules are few”.

[24] The appellant concedes that for the statement to be voluntary, the police need not explain every possible consequence of the criminal justice process, nor do they have a duty to make a suspect aware of possible immigration consequences. However, the appellant claims the police “cannot induce a suspect’s statement by misleading him about those consequences”. He notes that he was without counsel and police knew that immigration was an important issue for him. He claims that the police response to that issue made his participation more likely.

[25] We are not persuaded that the appellant was misled about the consequences of his immigration status or made any reviewable errors.

[26] The trial judge applied the law and made factual findings that were available on the record before him.

[27] We do not accept that the trial judge failed to consider the exchanges between Sgt. Samonekeo and the appellant concerning immigration, which the appellant characterizes as misleading assurances that the appellant’s statement would not have any immigration consequences.

[28] The trial judge raised the issue during the course of oral argument on the voir dire, and the respondent’s main point was that Sgt. Samonekeo made the statement, “whatever happens here has nothing to do with immigration”, to remove a potential inducement. The appellant’s experienced trial counsel made no mention of the immigration statement in his submissions nor did he take the position that the appellant was misled as a result.

[29] While it is evident that the trial judge was alive to the issue as evidenced by his comments, the immigration consequence was not a “live issue” as framed by the parties and there is no obligation to address evidence or arguments that are not live issues between the parties. Moreover, it is clear from the context that the trial judge agreed that Sgt. Samonekeo did not mislead the appellant as he concluded that “there was no suggestion that any threat or promise was made by the police, or that they engaged in any trickery”. In any event, the respondent notes that the appellant has filed no evidence of his belief regarding the immigration consequences at the time he gave his statement.

[30] For these reasons, the appeal is dismissed.

“Grant Huscroft J.A.”

“Harvison Young J.A.”

“Thorburn J.A.”