REASONS FOR JUDGMENT

OVERVIEW

[1] Abdi Ismail is charged with various offences arising out of the gunpoint robbery of a male who was getting into his car in Scarborough. The robbery occurred on December 3, 2010.

[2] The Crown seeks to adduce a confession made by Ismail to the police at the police station that was audio recorded. Ismail alleges the statement was not voluntarily made. He alleges that he was assaulted and threatened by the police in an interview room before giving his statement. This is my ruling on the voir dire.

[3] I have been advised that the victim of the robbery will testify that two males approached him as he was getting into his car. One of the males produced a gun. The victim was taken to the ground and robbed. The two males then fled in a blue Mazda Protege. The victim noted the licence plate of the fleeing Mazda and called 911. The Mazda was registered to Abdi Ismail's mother, Sarah Ghouled.

[4] Coincidentally, the police had the Mazda under surveillance for much of the same day of the robbery but discontinued surveillance approximately one half hour before the robbery.

[5] Members of the Hold Up Squad received word of the robbery and the licence plate of the fleeing Mazda. They attended Ismail's home in the west end of the city at 8:50 p.m., approximately four hours after the robbery. Ismail was home at the time as were his parents and other family members.

[6] Ismail was arrested at his home, and, according to the police, read his right to counsel and cautioned. He was then taken to the police station where he was placed in an interview room ("MCU #2") where he was strip searched by two detectives. Once he was dressed again, two lead detectives, Palermo and MacDonald, entered MCU #2. They had an exchange with Ismail during which time, according to Palermo and MacDonald, Ismail agreed to accompany the officers to another office and provide an audio recorded statement.

[7] According to Detectives Palermo and MacDonald, the encounter in MCU #2 lasted 13 minutes. The exchange in MCU #2 was not audio or video recorded however detective Palermo testified that he wrote out verbatim notes of that exchange.

[8] The accused testified on the voir dire. He testified that that encounter in MCU #2 felt like it lasted longer than 13 minutes. He testified that both officers threatened and assaulted him repeatedly. According to Ismail, the officers also threatened to interrogate his mother in similar manner. They told him he could be the male with the gun or the other male but that he would be giving a statement. Ismail testified that detectives Palermo and MacDonald essentially fed him the story they wanted him to tell. They also told him to state on audio tape that he did not want to give a video statement but wanted to give an audio statement. He agreed to provide a statement believing that the assaults and threats would stop. He then provided a 55 minute audio statement to the officers. Ismail was lodged in the cells overnight. The next day, he was taken to Court and to Maplehurst Detention Centre. On admission to Maplehurst, he complained to the Nurse about his injuries.

[9] I heard from all relevant officers on the voir dire as well as from Ismail and the nurse at Maplehurst.

[10] The Crown must prove beyond a reasonable doubt that Ismail's statement was voluntarily given. There is no suggestion that Ismail was intoxicated or not of a fully operating mind. Accordingly, I will not focus upon that part of the evidence.

Detective Michael Palermo

[11] Detective Palermo has been a Toronto Police Officer for 12 years, the last five with the Hold Up Squad.

[12] On December 3, 2010, he received information about a robbery that had recently occurred in Scarborough. The licence plate of the Blue Mazda had been obtained by the victim. Detective Palermo was advised that the Blue Mazda was registered to Ismail's mother. He was also advised that earlier that day, the Mazda had been under surveillance and that officers, using the pretext of an HTA stop, stopped the Mazda. Ismail had been driving and had four passengers. Ismail was wearing a red baseball cap, red jacket and dark pants. Palermo was also advised that, at 4:15 p.m. surveillance had seen Ismail alone in the Mazda near his home in the West end of the city.

[13] At 4:40 p.m., a 911 call was made reporting that this robbery had just occurred in Scarborough, approximately 20 kilometres from Ismail's home. The caller indicated that there were two suspects, one of whom had brandished a silver revolver. The caller obtained the licence plate of the Mazda.

[14] The two male suspects were described as black, approximately 20 years old, medium to heavy build, wearing dark clothes, and hoods covering their faces. The accused's appearance is not inconsistent with that generic description.

[15] Hold Up Squad Detectives Palermo, Watts, Belanger and Detective Constable Macdonald attended Ismail's mother apartment at 6 Rutland Road at 8:50 p.m. Two uniform officers were present for back up.

[16] The four detectives knocked on the apartment door. Mrs. Ghouled answered. Palermo identified himself. Mrs. Ghouled told the officers that the accused was home and that he was the only one who uses the Mazda. She told the officers that she had two guests in the living room and seemed embarrassed to have the police at her home as she was speaking quietly. The accused's father came to the door.

[17] Palermo asked to speak to Ismail. The father invited the officers in and pointed to a bedroom. The officers followed Ismail's mother to the bedroom. The mother opened the bedroom door. Three males including Ismail were in the room. Palermo recognized Ismail from a photograph he had seen.

[18] Palermo identified themselves as police officers. Mrs. Ghouled asked if the officers could speak to her son in the hallway due to the guests. Palermo was able to see the accused's hands and did not have any safety concerns about going into the hallway. Accordingly, Palermo, Ismail and Watts stepped into the hallway and closed the apartment door behind them.

Events in the Hallway

[19] At 8:52 pm, Palermo advised Ismail that he was a suspect in a robbery with a firearm. He testified that Ismail looked down. Palermo arrested him for robbery with a firearm. He read him his right to counsel which Ismail said he understood. Palermo asked Ismail if he would like to call a lawyer now and Ismail replied "no". Palermo read Ismail the primary and secondary caution in the hallway which Ismail said he understood.

[20] Palermo described Ismail as cooperative.

[21] At 8:55 p.m., Palermo turned Ismail over to Watts in the hallway. Watts handcuffed Ismail's hands behind his back. Ismail was only wearing shorts. Ismail asked for his clothes, specifically, his jeans, red jacket and red ball cap and runners. Palermo instructed Macdonald to retrieve those items. Watts then helped Ismail get dressed as he was still handcuffed. That was Palermo's last involvement with Ismail at the residence.

[22] Palermo left the residence at 9:30 p.m. and arrived at 32 Division at 9:55 pm.

Events at 32 Division

[23] At 10:10 p.m., Palermo received further details about the robbery. He read the police report and spoke to an officer who had interviewed the victim.

[24] At 10:30 p.m., Palermo had a five minute briefing with Watts, Belanger and Macdonald and learned that Ismail had made no utterances or requests. Palermo learned that Ismail was booked into 32 Division at 9:36 p.m. and was being held in MCU #2, which was a small room with a door and a chair fixed to the floor. He did not recall whether there was a desk in that room.

[25] Palermo testified that his goal was to speak to Ismail hoping to obtain a statement or confession, "at the end of the day".

MCU #2

[26] Palermo and MacDonald entered MCU #2 at 10:40 p.m., one hour and ten minutes after leaving Ismail's apartment. Ismail made no complaints.

[27] Palermo intended to advise Ismail that he would be charged with robbery with a firearm and ensure that he understood the charges. He also intended to tell him that he would like to speak to him about the charge on video. MCU #2 does not have a camera.

[28] Palermo lead the discussion in MCU #2. He brought his notebook into the room. He testified that he would write out each question he intended to ask Ismail before he asked it. He would then ask Ismail the question and then would write any response Ismail made before repeating that procedure for the next question. McDonald said nothing during the interview and was not writing notes. He was there for back up. Palermo never showed Ismail his notes or asked him to sign them.

[29] Detective Palermo's notes were made an exhibit on the voir dire. They are reproduced below and record the officer's version of what occurred in MCU #2 room between 10:40 pm and 10:53 pm:

2010-12-03

- Belanger/Watts to assist in case preparation
- McDonald/Palermo to adv A of his charge

2240 - enter into MCU #2 w/ McDonald to adv Abdi ISMAIL of his charge
- I lead conversation
-intro
-assigned to TPS HUS where we inv robberies

52 Abdi, you are going to be charged w/
Robbery while armed w/ a firearm
Do you understand

A No

S2 It means doing a robbery with a gun
Do you understand?

A I understand
What does it have to do with me

S2 It has a lot to do w/ you
The V of the robbery we are inv wrote down the licence plate of the get away car used by the suspects

BKPR034
A 2003 Mazda Protégé 4-door Blue
which is registered to you mother
Your parents advise that you are the only person who drives the car

S2 You were out all day with the car
And you came home just before we came to your door
Do you understand the charge and how it relates too [sic] you

A Yes. I understand

S2 We would like to talk to you about what happened at the robbery

A We didn't get anything. We didn't hurt him. I got a call to drive someone to the place where it happened

A He told me that he had to pick something up.
Next thing I know he running, so I run too to my car & leave

S2 OK
We would like to talk about this on Video recording.

A I just told you guys what happened

S2 We are going to have [illegible] to [illegible] you
I would like to do it on Video
So I don't have to write it all down

A I will answer ur questions, but not will being recorded on a camera

S2 Why

A Don't want my face on a recording.
It can get downloaded someday, for everyone to see me talking to you guys.

S2 How about you go on Video to say your reason for No Video, than [sic] we stop the video & only record your voice

A No
I will tell you guys what happened & answer ur questions on voice only recording

S2 Alright

A After I tell you guys what happened
I would like to say I'm sorry for being involved in this

S2 That's fine, you can apology at the end
give us a few min to set things up

A OK

2253 – exit MCU #2 w/McDonald

[30] Detective Palermo testified that he and MacDonald left MCU #2 at 10:53 pm, 13 minutes after they first entered. They obtained an audio recorder and arranged to interview Ismail in the supervisor's office down the hall from MCU #2.

[31] At 10:58 p.m., they returned to MCU #2 and escorted Ismail to the Supervisor's office.

[32] Detective Palermo testified that he did not assault, threaten or in any way improperly induce Ismail to provide a statement. Nor did any other officer in his presence. He recorded everything that occurred in MCU #2 in his notebook.

[33] Palermo testified that he did not audio record the exchange in MCU #2. He testified that it is his job to try to elicit a statement from a suspect. From his experience, not everyone will speak to the police if they are being recorded. Some do not want to be recorded incriminating anyone else as they are concerned that their face and statements might be uploaded to the internet. Accordingly, Detective Palermo tells suspects that he would like to speak on video and give them that option. In this case, Ismail wanted to give a statement that was audio but not video recorded. He was asked why he did not audio record the exchange in MCU #2 without Ismail's knowledge and replied that he did not think that was permitted.

[34] Detective Palermo did not have Ismail review and sign his notes of the exchange in MCU #2 nor were those notes read back to him.

Cross Examination

[35] In cross examination, it was pointed out that the detectives from the Hold Up Squad write their notes on loose leaf sheets of paper which are contained in a three ring binder. They do not use conventional notepads with pre-printed page numbers.

[36] Detective Palermo was cross examined on the manner in which the police gained entry into Ismail's apartment. He denied counsel's suggestion that the police entered the apartment without Ismail's parents' consent. He was cross examined on numerous minor details of his time in the apartment that were not recorded in his notes such as whether he sat on a chair or the order in which the officers stood at the door before entering the apartment.

[37] It was repeatedly suggested to Detective Palermo that he and Detective Constable MacDonald continually assaulted and threatened Ismail in MCU #2 in order to force him to confess. It was suggested they essentially fed Ismail a script of what to say. It was also suggested that they were in the room longer than 13 minutes. As forcefully as those suggestions were put to Detective Palermo, he was equally forceful in rejecting those suggestions.

[38] Detective Palermo was cross examined on his failure to audio record the exchange in MCU #2 and his knowledge of related jurisprudence. He agreed that video or audio recording were "best practices" but did not believe that all interactions with suspects need to be taped. He testified that he did not bring a recording device into MCU #2 because he did not intend to take a statement at that time and, further, he feared Ismail would not speak if he walked in with an tape recorder.

[39] It was suggested to Palermo that he was the one who brought up apologizing to the victim but he maintained it was Ismail who asked if he could apologize.

Detective Constable James MacDonald

[40] Detective Constable MacDonald has been a Toronto Police Officer since 2000. He has been with the Hold Up Squad since 2010. He is Detective Palermo's partner.

[41] He attended Ismail's apartment at 8:46 p.m. with Detectives Palermo, Watts and Belanger. Mrs. Ghouled invited them into the apartment. The door to the bedroom where Ismail was located was open, not closed. Ismail went into the hallway with Detective Palermo while McDonald stayed in another room with Ismail's 17 year old brother.

[42] Palermo told McDonald that Ismail wanted his coat, hat and jeans. MacDonald was not directed to any specific clothing but knew from surveillance that Ismail had been wearing the red jacket and cap so he retrieved those items.

[43] McDonald and Palermo left the residence at 9:30 p.m. for 32 division. He did not note the time they arrived at 32 division but believed it was approximately 10:10 or 10:20 p.m. They may have stopped for coffee before going to 32 division.

[44] McDonald's first direct contact with Ismail was at 10:40 p.m. when he and Palermo entered MCU #2. McDonald's role was as back up. He did not ask questions or write notes.

[45] They entered MCU #2 to ensure that Ismail was aware of the charges he was facing and to see whether he would provide a statement. MacDonald corroborated Palermo's evidence that the two were in MCU #2 from 10:40 until 10:53 p.m. MacDonald corroborated Detective Palermo's evidence that no assaults or threats occurred in MCU #2.

[46] McDonald's had four lines of notes concerning the events in MCU #2.

[47] He wrote the following:

1) Palermo advised accused of nature of charges and explains allegations;
2) male willing to provide statement, audio only;
3) doesn't want to be videotaped;
4) is apologetic re incident.

[48] McDonald was unable to provide specifics of what was said during those 13 minutes other than his summary as noted in his notebook. His evidence contained comments such as Ismail "would have" been asked if he wanted to go on video and refused as he was concerned about the video getting out in the community. He was asked in cross examination what was said that lead Ismail to agree to give a statement and replied that Palermo asked him to but he did not remember the words that were spoken nor did he write them down. He testified that Ismail had been given the option of making a video statement but declined.

[49] MacDonald and Palermo left MCU #2 at 10:53 p.m., retrieved an audio recorder and re-entered the room and 10:58 and escorted Ismail to a larger office.

[50] In that office, the three sat at a desk and took a 55 minute audio recorded statement from Ismail wherein Ismail admitted his involvement thought minimized his role.

[51] Ismail did not seem scared or intimidated. MacDonald was not nodding or prompting Ismail during that statement.

[52] When cross examined on the reason for not audio recording the exchange in MCU #2, Macdonald replied that officers must first build a rapport with a detainee. If a tape recorder is presented immediately, many detainees will not speak. When asked why the officers did not record the exchange without Ismail's knowledge, he did not believe police were permitted to do so.

[53] Voices were not raised during the exchange in MCU #2. Both Palermo and McDonald were standing while the accused was seated during that exchange.

Evidence of Detectives Belanger and Watts

[54] Detectives Belanger and Watts were members of the Hold Up Squad. Their involvement was somewhat more peripheral than MacDonald and Palermo's. They provided back up at the residence and at 32 Division.

[55] Belanger and Watts both testified that they arrived at Ismail's residence at approximately 8:50 p.m. and that Mrs. Ghouled invited them into the apartment. Ismail was taken from a bedroom to the hallway.

[56] Detective Belanger remained inside the apartment and did not witness the events in the hallway.

[57] Detective Watts testified that, in the hallway, Palermo told Ismail that he had been identified as a suspect in a robbery. Ismail looked down. Palermo read Ismail his right to counsel and caution. Ismail did not want to call a lawyer. Watts took custody of Ismail. Ismail asked for his red ball cap and jacket. Those items were retrieved for him.

[58] Watts and Belanger took Ismail from the hallway to their cruiser. They left for 32 Division at 9:20 p.m. arriving at 9:33 p.m. Ismail was paraded and booked into 32 Division at 9:36 p.m. Ismail was placed in MCU #2 where he was strip searched by Watts and Belanger. They removed one item of clothing at a time, search and returned it. Ismail was never fully naked in MCU #2.

[59] Belanger testified that Watts told him that there was no need to call Ismail a lawyer as Ismail did not want to speak to counsel.

[60] Watts did not recall telling anyone that there was no need to call Ismail a lawyer.

[61] Watts testified that Palermo and McDonald did not enter MCU #2 before 10:35 p.m.

[62] Both Belanger and Watts testified that Ismail was not mistreated or threatened.

[63] Belanger and Watts were in the C.I.B. office located less than 20 feet away from MCU #2. Watts saw no interaction between Palermo, McDonald and Ismail at the Division but testified that he would have heard if anyone was yelling or assaulted even though MCU #2 was soundproof.

[64] Watts testified that it was his practice to allow someone to review and sign his memo book if he wrote out a statement in that book that was not recorded on tape.

[65] A DVD was entered as an exhibit which shows Ismail being booked in and out of the police station. The booking out footage lasts approximately six seconds. While it is not a lengthy observation, Ismail does not appear injured or dishevelled.

[66] That was the evidence called by the Crown on the voir dire.

Defence Evidence

[67] Ismail testified on the voir dire and called the nurse from the Maplehurst Detention Centre as the first defence witness.

Nurse Lori MacDougall

[68] Lori MacDougall is a registered nurse. She was the staff nurse at Maplehurst Detention Centre when Ismail was brought to the detention centre on December 4, 2010. MacDougall's role that day was to get a "brief history of any medical or psychological conditions" of inmates arriving at the institution. She saw between 15 and 25 inmates every two to four hour shift. MacDougall and her partner interviewed Ismail upon his arrival and jointly filled out a three page "Health Care Record" upon admission.

[69] She had no recollection of her interaction with Ismail. The Health Care Record was admitted as "past recollection recorded". It contains a series of questions which are asked of arriving inmates. The staff place checkmarks or brief notes on the form depending on an inmate's response. Page three of the form contained MacDougall's signature and the note "seen in AD [Admissions and Discharge] and no voiced medical complaints". She explained however that that comment is unrelated to any injuries.

[70] The relevant section for the purposes of the voir dire is the section entitled "Current Injuries". Nurse MacDougall initially checked off "NO" but the ticked off "YES" and circled "YES". There are six sub categories in that section: laceration, abrasion, swelling, redness, tenderness and bruising. The latter three (redness, tenderness and bruising) were checked off and her note states "to back and leg [related to] arrest".

[71] Nurse MacDougall testified that it was not her practice to get into any detail about how the injuries occurred. For her purposes, it was sufficient to note that they related to the arrest.

[72] In cross examination by the Crown, she agreed that Ismail did not say anything to cause her to check the boxes "swelling", "laceration" or "abrasion". From her notes, she did not think she would have seen the injuries as she believes she would have included more details had she seen the injuries. However, as was apparent from her evidence, she had no memory of the encounter. She testified that bruising would be harder to see on dark skinned person such as Ismail than on someone with lighter skin. It was clear throughout her evidence that she could not reliably recount any evidence that was dependent upon her memory. All I can reliably take from her evidence is that Ismail either told her or showed her injuries and said something that caused her to note that they were related to the arrest.

Abdi Ismail

[73] Abdi Ismail testified on the voir dire. He was 21 years old at the time of trial. He had no criminal record. He was in his fourth year of studies in Health Management at the University of Toronto. He lives with his parents. He was cross examined over two days.

[74] He denied being involved in the robbery.

[75] His testified that his mother opened the bedroom door. Plainclothes police officers were standing behind her. One of the officers, whom Ismail now knows as Detective Palermo, asked "who is Abdi?"

[76] He immediately realized that these four white men standing with his mother were police officers.

[77] Palermo asked him to come into the hallway which he did. The officers were neither rude nor polite at this point. He described them as acting professionally.

[78] Once in the hallway, an officer handcuffed him. Ismail was not fully dressed. One of the officers asked him what he was wearing that day and Ismail answered. Those clothes were then retrieved. He did not ask for any specific clothing.

[79] He was not read his right to counsel in the hallway.

[80] Nothing unusual occurred on the drive to 32 Division.

[81] When being booked at the station, one of the officers told the booking officer that the accused had been advised of his rights. Ismail told the booking officer that he understood his rights. When asked why he told the booking officer that he understood his rights, Ismail replied that he thought he would be given an opportunity to call a lawyer and did not want to create conflict with the officers at that moment.

MCU #2

[82] Ismail testified that he was taken to MCU #2 and strip searched. One item of clothing was removed at a time and, by the end, he was naked. His clothes were then returned to him and he got dressed. He then remained alone in MCU #2.

[83] Detectives Palermo and MacDonald entered in MCU #2. According to Ismail, Palermo said: "You are tired, so are we, where were you today?"

[84] Ismail replied: "I don't know, I went to a lot of places"

[85] Palermo then asked Ismail about being stopped by the police earlier that day and asked where he went after he was stopped. Ismail replied that he did not know where he went.

[86] Palermo stated: "that is not acceptable".

[87] McDonald slapped Ismail in the face.

[88] The officers told him it would get worse if he did not tell them what they wanted.

[89] Ismail repeated that he did not know where he was earlier. McDonald punched him in the face. Palermo then kicked him four or five times on the left side of his torso. Palermo then exited the room, removed his watch, returned and rolled up his sleeves and asked Ismail if he wanted to try it again. Before Ismail could answer, McDonald kicked Ismail on the left side of his body. Ismail repeated that he did not know where he had gone and McDonald lifted him by his shirt from his chair and dragged him to the corner of MCU #2. McDonald was trying to punch Ismail but Ismail was blocking the punches by raising his arms. Palermo grabbed and tried to lower Ismail's arms. McDonald kneed Ismail in the head and ribs and told Ismail to sit on the ground. Ismail feared what might happen if he sat on the ground and quickly sat on the chair. One of the officers told him it would get worse if he did not tell them what they wanted to hear. Ismail said he wanted to call a lawyer and was told that no one would save him. He asked to go to the washroom just to be able to leave the room. One officer hit or slapped him and told him he would break his neck if he made any noise. Ismail was taken to the washroom and back to MCU #2. Ismail sat down. McDonald began kicking him. Ismail was seated next to the wall. Palermo slammed Ismail's head into the wall and then forced his head down onto the table. McDonald repeatedly elbowed Ismail in the back of his head. The cross examination of Ismail on this point revealed the obvious, he would not see what was on the back of his head. If anything occured, he could say he assumed it was an elbow rather than a punch. Ismail was trying to protect himself with his hands. The officers left the room and returned wearing blue latex gloves. Palermo said they were at a cross road. He told Ismail that, if he told them what they wanted to hear, everything would be okay. If not, they would take his clothes off. Ismail testified that he was afraid and told the officers that, if they keep going, they would put him in the hospital and an officer replied that that was exactly what would happen. They also told him that the Mazda was registered his mother and they might interrogate her in the same manner. Palermo told Ismail that no one in the station would help him and those that were in the station wanted a "piece of him". Ismail gave up and agreed to speak to the police. Ismail told the officers that he was involved in the robbery with two other men in two cars. This seem to aggravate Palermo who became angry. They then essentially walked him through the story they wanted to hear and told Ismail that, when they go into the room on audio, they will ask if he wants a lawyer and he will say no. They will ask him if he will speak on video and he should say that he wants to do an audio statement. He was then taken to the office where he provided a 55 minute audio statement during which time, McDonald would nod his head if he agreed with the answer.

[90] Ismail was cross examined extensively over two days. He remained largely consistent in his account of all the events and, at time, corrected the Crown when the Crown inadvertently misstated some of Ismail's evidence in chief. With respect to his demeanour, he appeared natural when testifying. Ismail testified that the subject of an apology did not come in MCU #2 initially. I note however that counsel suggested to Detective Palermo in cross examination that he brought up the subject of apologizing to the victim.

[91] Ismail testified that, when he was brought to Maplehurst, he told the admissions nurse about his injuries. He testified that he told her about further injuries than she noted but did not see what she wrote down on the Health Record.

[92] He agreed that he did not have any broken bones but testified that he had bruises to his back, neck and left side. His jaw was sore and he could not chew for a week. The bruising lasted one to two weeks. He agreed with the suggestion that that the officers put their full force into their strikes. He testified that the punches may have not have directly hit his face as his hands were up. They may have deflected off of his hand into his face. He testified that he was yelling during the assault.

[93] He testified that he was never offered a lawyer until he left the station. When it was suggested during cross examination that he never asked for a lawyer, he replied that he did ask Palermo and McDonald for a lawyer when he was in MCU #2 as he had testified in chief.

[94] He testified that the questions and answers that Palermo noted in MCU #2 never happened.

[95] He did not take Palermo's initial comment: "you are tired, so are we" as threatening or menacing. He took it as it the officer telling him to hurry up.

[96] He was told by the officers that he could be the one with the gun or the other one. It was suggested that he did not say that in chief. However, that suggestion was put to the officer in cross examination.

SUBMISSIONS

Crown

[97] The Crown submits that the evidence of the officers was consistent, independent and truthful. The assaults described by the accused would have resulted in visible injuries yet none were seen on the booking out video. Any injuries Ismail reported to the Nurse at Maplehurst were either a fabrication by Ismail or may have been occasioned while Ismail was in custody with other prisoners.

[98] The Crown submits that there was not enough time to script a 55 minute statement in the 13 minutes the officers were in MCU #2.

[99] With respect to not audio recording the exchange in MCU #2, the Crown submits that the officers were not in the room to elicit a statement. They were there to introduce themselves, to ensure that Ismail was aware of the charges and to determine if Ismail would give a statement.

[100] The officers notes of that exchange conclude with Ismail asking if he could apologize to the victim. Ismail is then heard on the audio statement apologizing to the victim. Ismail, in his evidence, testified that the subject of the apology did not come up in MCU #2.

Defence

[101] The defence submits that, in essence, there are two competing versions of what occurred in MCU #2. Ismail is not sophisticated or knowledgeable about the criminal justice system. In his evidence, he gave a very detailed and thorough account of events he said occurred and was consistent in his description of what occurred. He alleges that he was threatened and assaulted and threats were made to interrogate his mother in a similar manner which caused him to give up and provide a statement. He was cross examined for two days and was largely un-impeached. He has no criminal record.

[102] The defence submits that Ismail's testimony should raise a reasonable doubt about the voluntariness of his statement. While one does not see any injuries on the brief booking out video, the video is brief and Ismail is dark skinned. Any injuries would not be easily seen. Further, Ismail did complain to the nurse about his injuries at the first reasonable opportunity. With respect to any inconsistencies between the injuries as described by Ismail in his evidence and what Nurse MacDougall noted, the defence points out that MacDougal had no recollection of the events whereas Ismail remembered the events including the fact that he told the Nurse more than was recorded. Further, MacDougall did not show Ismail her notes.

[103] The defence submits that Detective Palermo could be heard using an aggressive tone with Ismail on the 55 minute recorded statement and asks rhetorically what his tone would have been like when he was not being recorded. The defence points out contradictions between the officers evidence such as whether the accused asked for the specific clothing while in the hallway and submits that tells against the officers' credibility and reliability.

[104] The defence submits that the 13 minute time frame in MCU #2 is the time frame according to the officers. Ismail did not keep note of the time but testified that it felt longer. In this regard, the defence notes that Watts and Belanger left Ismail's home at 9:20 p.m. and arrived at the police station at 9:33 p.m. Accordingly, it was only a 13 minute drive to the Division. Palermo and McDonald left the apartment at 9:30 p.m. and testified that they did not enter MCU #2 until 10:40 p.m. There was time for them to have been in the room longer than they testified to.

[105] The defence submits that it would not make sense that Palermo would conduct the interview in MCU #2 and write out his notes while MacDonald stood by. MacDonald and Palermo both testified however that Macdonald was providing back up and security and it would be unsafe for MacDonald to be looking at a notebook. The defence submits that the conversation noted in exhibit 3 would not take 13 minutes to conduct. According to the defence, it would take no more than 7 minutes if one were to read each line in exhibit #3 exceptionally slowly.

[106] The defence submits that the officers ought to have recorded the exchange in MCU #2, even without Ismail's knowledge.

[107] Both counsel submit that officers are permitted to record interviews with detainees in police custody without the detainee's knowledge. That would produce a clear record of what transpired.

[108] Those are the positions of counsel.

The Confessions Rule

[109] Confessions can be extremely powerful evidence in a criminal prosecution. An accused has a pre-trial right to silence. In most cases, he or she cannot be compelled to provide a statement. Where the Crown alleges that an individual has given up his or her pre-trial right to silence and has made a statement to the police which the Crown seeks to adduce, the Court must ensure that the statement was voluntarily made.

[110] In R. v. Hodgson, 127 C.C.C. (3d) 449 (SCC), Cory, J. for the majority held:

"Evidence of a confession has always been accorded great weight by triers of fact. This is a natural manifestation of human experience. It is because of the tremendous significance attributed to confessions and the innate realization that they could be obtained by improper means that the circumstances surrounding a confession have for centuries been carefully scrutinized to determine whether it should be admitted. A confession is not excluded, however, simply because of the risk that a conviction may result, but because of the greater risk that the conviction will be unfairly obtained and unjust."

[111] The rationale underlying the modern confessions rule was reviewed by the Supreme Court of Canada in R. v. Oickle, [2000] 2 S.C.R. 3. The requirement that confessions be voluntary relates to concerns with both fairness to the accused and reliability. Involuntary confessions undermine an accused right to silence and are more likely to produce unreliable confessions. The Court must also bear in mind the importance of protecting an accused's rights without unduly limiting society's need to investigate and solve crimes. (R. v. Oickle, para 33)

[112] Turning to the case at bar, has the Crown proved beyond a reasonable doubt that Ismail provided his statement to the officers voluntarily. In the context of this case, that means the Crown must prove that the accused provided a statement without fear of threats or assaults caused by the police.

[113] There are essentially two versions of what occurred in MCU #2.

[114] The officers testified that they simply asked Ismail if he wanted to provide a statement and he agreed to provide one recorded on audio. Ismail alleges a far different scenario.

[115] The only record of what occurred in MCU #2 is in the form of Detective Palermo's notes. The officers did not audio or video record the events in MCU #2 for the reasons already stated. As a result of the failure to record those events on audio or video, a voir dire has been held where credibility is the central issue pitting the credibility of the accused against the officers in relation to the events that lead Ismail to provide a statement. A reliable, independent and accurate record of what occurred would have been of considerable benefit in determining these issues.

[116] In R. v. Moore-McFarlane, 160 C.C.C. (3d) 493, while holding that there was no absolute rule requiring the recording of statements to the police, the Court of Appeal noted that (at paragraph 65):

"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 trier of fact 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"

And in paragraph 67, the Court stated:

"[I]n 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".

[117] That reasoning applies as well to the exchanges between the police and an accused that lead to the accused providing a statement.

[118] In R. v. Philogene, [2006] O.J. No. 4601 (Ont. CA), an accused was arrested for robbery and taken to the police station. He eventually gave a video recorded confession. The police did not facilitate his request to speak to counsel and his confession was excluded by the Court of Appeal on that basis. However, the Court spent considerable time on the issue of voluntariness. Prior to giving his tape recorded confession, on three occasions, officers entered Philogene's interview room and had discussion with him. None of those interactions were recorded on video or audio. There was a dispute between the police and Philogene as to what occurred during those exchanges. In essence, Philogene alleged that the officers were intimidating toward him and fed him a script of what to say. Nonetheless, the trial judge admitted the taped confession holding that it was voluntarily made. The Ontario Court of Appeal held that:

"[I]n order to properly determine voluntariness, the trial judge was obliged to consider what preceded the taped statements. He ought to have found the untaped portion of the interviews suspect and gone on to do an analysis of whether there was a sufficient record of the untaped portion to be able to rule on the voluntariness of the taped portion [citations omitted] The appellant was in custody; video equipment was available and the police deliberately set out to interrogate him without taping. The resulting interrogation was thus rendered suspect by the fact that it was not recorded. The trial judge failed to take these factors into account as part of his reasoning on the question of the voluntariness of the taped statement."

[119] In R. v. Guy Young, 2009 O.J. No. 891 (Ont. CA), in dismissing a conviction appeal, the Court of Appeal held as follows:

In the course of her ruling on the admissibility of the statements, Molloy J. adverted to what appears to an ongoing misperception among some police officers on the right to videotape (or tape record) the taking of a statement from an accused. At paras. 25 to 26 of her ruling she wrote:

I agree that the taking of a formal statement from a suspect is different from filming the routine matters that occur at arrival and booking. However, there is nothing about the taking of a formal statement that precludes it being tape recorded right from the start. It is appropriate to explain to a suspect that the interview is being videotaped and why, and there is nothing wrong with discontinuing the videotaping if the suspect does not wish to be recorded. However, there is absolutely no legal requirement to start the interview without taping and to only turn on the recording device upon obtaining consent. Quite to the contrary, the norm should be that a suspect is spoken to from the outset with the videotape in operation: R. v. Backhouse at para. 118. It should only be discontinued if the suspect objects.

It is not clear to me where these officers got the idea that it was unlawful to start the recording before getting permission. However, this is not the first time that I have heard police officers speak of it. It appears to be a commonly held view. Crown counsel in this case was unaware why police officers had this understanding, but agreed that there was no legal basis for it. I felt it important to comment on this formally in the hope that steps would be taken within the police force to educate officers on the importance of recording interviews from the outset. Otherwise, the important principles underlying cases such as Moore-McFarlane will be seriously undermined.

[10] We affirm these comments. They hearken back to the words of Rosenberg J.A. in R. v. Backhouse, (2005), 194 C.C.C. (3d) 1 at para. 118:

That said, I should not be taken as holding that it will always be an answer to the failure to videotape the statement that the suspect has refused to participate. It could become all too easy for the authorities to attempt to avoid the impact of this court's decision in Moore-McFarlane by attributing to the suspect a refusal to have his statements videotaped. It would still be open to the police to tape record the statement, or at the very least electronically record the suspect's wishes, to avoid any later dispute. Depending on the context, the trial judge might well view with concern a bare assertion by police officers that the suspect refused to be videotaped or even tape-recorded.

[11] In short, the police are entitled to begin to videotape or tape record an accused's statement. If the accused then objects or refuses to be videotaped, at least there will be a record of the accused's refusal.

[120] I have reviewed the officers reasons for not recording the exchange in MCU #2. They also testified that they did not believe that they could have recorded that exchange without Ismail's knowledge.

[121] On this last point, the potential objection to recording an exchange between an officer and an accused at the police station without the latter's knowledge is a potential concern about a violation of the accused's privacy.

[122] However, an individual who knowingly speaks to police officers at the police station does not have a reasonable expectation that that conversation will remain private unless something is said to reasonably cause that belief (i.e. informer privilege for example). Other than those unusual situations, an individual speaking to an officer does not have a reasonable expectation of privacy in that conversation. Moreover, any caution that was given would further eliminate any belief that the conversation was private. The accused likely sees the officers writing notes of that conversation. It is only the form of capturing the exchange which differs. A recorded capturing of the events would produce a clear, accurate and independent account of that exchange. As Courts have repeatedly held, there is an undeniable benefit to the administration of justice of a complete, accurate and objective record of that exchange. The benefits of an independent record usually accrue to the accused, the police and to the Court. We have seen a relatively new example of that in the context of cameras in police cruisers.

[123] In a slightly different context, several cases have held that the surreptitiously recorded confessions did not undermine their voluntariness.

[124] For example, in R. v. Tuck, [2009] O.J. No. 6090, the police officer tricked Tuck into believing his statement was not recorded on audio, but was merely being recorded in the officer's notes. Tuck challenged the admissibility of the confession on the basis of voluntariness and on section 8 of the Charter. Forestall, J. found that the secret recording of the confession did not undermine the voluntariness of the confessions. In dismissing the Charter motion, Her Honour held (paragraph 31):

The reasonable expectation of privacy in a conversation with a police officer has been considered in two cases in this court. Ferguson J. in R. v. S.S., found that anyone who speaks to police engaged in the execution of their duty should be taken to assume that his or her words will be preserved and used by the state. The preservation would at least involve taking notes. Ferguson J. concluded that in such circumstances there is no reasonable expectation of privacy. Abbey J. reached the same conclusion in R. v. Jenkins. I agree with the analysis in S.S. and Jenkins. Applying the test in Duarte to the facts in the case before me I conclude that Mr. Tuck had no reasonable expectation of privacy in his communications. He expected that Detective Davis would record them. The only issue was the method of recording. Having concluded that there was no reasonable expectation of privacy, it follows that there was no violation of Mr. Tuck's s. 8 rights. Even if I am wrong in my conclusion on the violation, I would not have excluded the evidence under s. 24(2). The law on the issue of whether a judicial authorization is required for such a recording is unclear. I find that Detective Davis acted in good faith and was motivated by a desire to have a complete accurate record of his communications with Mr. Tuck. Our courts have emphasized the importance of such an accurate record in the context of statements of accused persons and witnesses. It would not bring the administration of justice in to disrepute for the evidence of the statements to be admitted into evidence in these circumstances.

[125] During the course of submissions, both counsel took the position that the police ought to be allowed to record an exchange with a detainee at the police station without the detainees knowledge. I agree.

[126] Again, while it is not a requirement that all exchanges be recorded, it would have been of considerable assistance to the Court to have had a record of the exchange in MCU #2 in order to resolve the issues in this voir dire.

[127] With these principles in mind, I return to the issue in this case: has the Crown proved Ismail's statement to be voluntary.

[128] As I stated earlier, there are essentially two versions of what occurred in MCU #2.

[129] I do not believe Ismail's evidence.

[130] His demeanour while testifying appeared credible and natural as he testified over several days. Moreover, he was largely consistent in his evidence on all material matters over an extensive cross examination. However, the absence of any injuries seen on the booking out video, limited as it may be, together with his answers in cross examination in relation to the elbow on the back of his head and the subject of the apology, cause me to disbelieve his evidence.

[131] It is possible that Ismail was simply mistaken when he testified that the subject of the apology was not brought in MCU #2 and it was suggested to Palermo in cross examination. Further, Ismail may have assumed it was an elbow that struck the back of his head (assuming anything at all occurred). It is also possible that the short booking out video would not show the injuries he says he suffered given how brief the video was and the fact that Ismail has dark skin. Nonetheless, the absence of visible injuries on that video in particular, together with those other matters cause me to disbelieve Ismail.

[132] Further, I essentially believe the officers in this case as it relates to what occurred in MCU #2.

[133] There were some minor discrepancies between the officers' evidence, for example, whether Ismail asked for the red clothing while in the hallway, but those inconsistencies did not cause me to have any doubt about the officers' credibility or reliability. Likewise, neither did the occasionally aggressive tone of questioning that can be heard during the audio recorded statement. On the other hand, the practice of using loose leaf sheets inserted into a notebook as original notes of the investigation seems unwise as it easily permits notes to be inserted after the events and, in any event, permits that possibility. That is the implication of Ismail's testimony. Further, It seems odd that Detective Palermo would be the one conducting the interview, writing the notes of his questions, then asking those questions, then writing out the responses while MacDonald wrote nothing. Macdonald did not have significant notes a to what occurred during that 13 minute exchange. His notes were a summary unsupported by a memory of the specifics.

[134] I accept that the officers did not think they were entitled to record the conversation without Ismail's knowledge. I also accept that they believed that suspects are less likely to talk when confronted with a tape recording device. I therefore do not draw an adverse inference against their credibility as a result of their failure to record that exchange. Nonetheless, the failure to record those events on tape leaves the Court with two versions of events. The only record of what allegedly occurred in that room is in the form of Palermo's notes. Notes which are in dispute. Which MacDonald does not have much to add to and notes which were never shown to Ismail.

[135] So, I do not believe Ismail for the reasons given and I essentially believe the officers as to what occurred in MCU #2.

[136] Nonetheless, this is not a question of which version I believe. The issue is whether there is a reasonable doubt as to the events that occurred in MCU #2 which in turn led to the statement the Crown seeks to adduce.

[137] The factors which I mentioned earlier still have some value when considering whether I have a doubt in this case. Ismail has no criminal record. He testified in a manner that appeared natural and credible for days. His evidence was, for the most part, consistent on all material matters. He complained about his injuries to the Nurse at Maplehurst upon his arrival. I do not accept the Crown submission that any injuries he suffered were caused by other inmates. It is possible that he was lying the nurse about his injuries. It is possible that Ismail, at 20 and without a criminal record, was so cunning that he complained to the nurse of fictitious injuries to be somehow used for his benefit in this case.

[138] This combination of factors, namely, the manner in which Ismail testified, the overall consistency in his evidence, the fact that he complained to the nurse together with the failure to audio or video record the exchange in MCU #2 leaves me with a reasonable doubt as to the voluntariness of Ismail's confession. Accordingly, the Crown has not established that the confession was voluntarily made and it will not be admitted into evidence.

Released: May 13, 2013

Signed: "Justice H. Borenstein"