Ontario Court of Justice

Date: 2017-05-01

Court File No.: Brampton 3111 998 14 10919

Between:

Her Majesty the Queen

— and —

James Malik

Before: Justice G.P. Renwick

Heard on: 01 May 2017

Ruling on Voluntariness released on: 01 May 2017

Counsel

C. Sibian — counsel for the Crown

R. Loccisano — for the defendant James Malik

RENWICK J.: (orally)

THE ISSUE:

1. While the defendant spoke with the Qualified Technician he made certain utterances which the Crown seeks to adduce during his trial. On consent, the trial began with a voir dire to determine whether the Crown could use the defendant's statements as evidence in this trial.

2. I have to be satisfied that these utterances were voluntary, that is to say, not the product of inducements, threats, coercion, or trickery that would deprive the defendant of a choice whether or not to speak with the police. I have to be satisfied beyond a reasonable doubt that the defendant spoke to the police voluntarily. This is a high threshold and the burden is the Crown's.

3. Counsel and the Crown agree that I need not consider the issues of inducements or threats, promises or coercion in the circumstances of this case and the only issue is whether or not Mr. Malik freely chose to speak with the police, i.e., whether or not he understood his right to remain silent and he chose to waive that right, voluntarily.

4. The Crown submits that the police did nothing improper. Mr. Malik was given all of the appropriate cautions and simply chose to speak to the police. The Crown urges me to consider the statements made before the breath testing separate and apart from those utterances made in between the breath tests.

5. Mr. Loccisano submits that the police ought to have been careful to assure that the defendant properly understood his right to remain silent and in the circumstances the police assumed the defendant knew his rights and did not properly caution the defendant that it was his right to maintain silence at all times. Defence counsel submits that the mandatory breath testing scheme and the breath demand would compel the defendant to believe that the questions asked during the completion of the Alcohol Influence Report were a part and parcel of the breath testing and accordingly, by failing to provide a second caution to remain silent, the police deprived the defendant of necessary information which impacted his decision to speak. All of this goes to the voluntariness and the Crown cannot establish this high hurdle in these circumstances.

6. With respect to the earlier utterances, Mr. Loccisano submits that the entire interaction between the defendant and the breath technician was a part of a compelled process, where nobody would understand that they had a choice whether or not to speak with the police, and the breath technician assumed Mr. Malik knew his rights, which was improper. In these circumstances counsel urges me to have a reasonable doubt about whether or not Mr. Malik spoke with the officer in a voluntary way in the first part of the videotape.

7. I have reviewed the breath room videotape of the interaction between the officer and the defendant. These are my findings:

   i. The breath room videotape captures the entirety of the interaction between Police Constable ("PC") Scott Leamon and Mr. Malik;

   ii. PC Leamon explains who he is and what he is there to do: take breath samples;

   iii. PC Leamon says: "This room is all audiotaped and videotaped" to which Mr. Malik says "Sure;";

   iv. PC Leamon continues: "so, everything here is all disclosed, there's no secrets" and again Defendant says "sure, ok"; and officer asks "ok" and Mr. Malik responds, "yeah;";

   v. PC Leamon continues, "so, I just had to let you know those things, alright. If there're any questions throughout the whole process, just let me know and I'll answer those for you. By law, all you have to do in this room is provide 2 samples of your breath; you don't have to speak anything about what happened if you don't want to; you don't have to tell me anything, okay; you just have to give 2 samples, okay" and Mr. Malik responds "sure;";

   vi. PC Leamon then confirms that the defendant spoke with a lawyer and he understood what he was told. And the officer confirms that the police have left messages for a specific lawyer;

   vii. PC Leamon asks "okay, so, you're comfortable with still proceeding with the tests" and the answer given is "yeah; just breathalyzer;";

   viii. The officer says he will just get your samples done, make sure that part is done, while the other officer tries to get a hold of the defendant's personal counsel;

   ix. PC Leamon says "ok, so, you've read your rights and you understand those." Mr. Malik says: "yaaa, I know them quite well;";

   x. Then the officer says "Ok, so, I have to read a couple of things to you; I'm not going to read you your full rights; I mean like you said you're versed, you're educated, you understand that yourself. But this is called a caution. Ok. So, you may be charged with impaired operation and potentially excess blood alcohol. Ok, 2 charges in the criminal code of Canada; do you wish to say anything in answer to that charge; you're not obligated to say anything unless you wish to do so, but whatever you say may be given in evidence; do you understand that;";

   xi. Mr. Malik responds: "No, I'm fine" at 3:23 seconds of the 39 minute recording;

   xii. Then the officer continues: "Ok so this is a secondary caution; so, if you've spoken with any police officer and anyone with authority, or if such person has spoken to you in connection with this case, I want you to clearly understand, do not want it to influence you in making any statements to me; Mr. Malik responds: "k." PC Leamon continues: "you understand that," Mr. Malik says: "ya;";

   xiii. Then the officer reads Mr. Malik the breath demand and he confirms the defendant understands. The officer advises that he has to type in some information while he is awaiting for the instrument to get ready. He also explains that there will be one test, they will wait 17 minutes and then do the second test. At this point, there is a pause in their conversation at 4:24 of the video;

   xiv. As the officer begins typing the defendant begins a conversation about the look of the breath testing equipment, he says it looks like a big typewriter, the officer says there is a lot going on within the machine, and he comments "they do look kinda weird though, eh" at which point Mr. Malik says "I went from one light to the other, and, I look and it was going green, and just" and the officer says "just wasn't green" and Mr. Malik responds "no." The officer then asks if Mr. Malik was by himself tonight, and Mr. Malik responds, "well, I just dropped off somebody" before beginning to discuss having quit his job and getting a new one. They begin to discuss that and where that is and unprompted, at 5:50 the defendant says, "as I said, look, this never happened before, its, not even close, someone, she just needed a ride home, and I dropped her off, I came back and, I thought the light was red, and, or ah, turning green, and it was red, and I don't even know what to say. I just you know, lose my house, lose my car, lose everything;";

   xv. The officer asks if he lost his house and Mr. Malik continues, "no, no, if this is not good, so, I just wait. I don't know what to say, it's, this has never happened before." The officer responds, "fair enough." Mr. Malik continues, "just left my house, nothing; just dropped off somebody and that was it;";

   xvi. They each say something inaudible. And the defendant says "around the corner, McLaughlin and Steeles." He continues, "from putting cuffs onto people to getting cuffs on, totally different;";

   xvii. At 7:32, the officer speaks briefly with the other officer and she leaves the breath room. PC Leamon then tells the defendant it's pretty informal, he can call him "Scott." And the defendant goes into a long discussion about exactly what caused the accident;

   xviii. At all times, Mr. Malik appeared comfortable, albeit nervous, the door to the breath sample room remained open, and at no point did the officer trick the defendant into speaking with him. While the atmosphere may have been somewhat relaxed, it was not informal or casual. The officer was professional and it was obvious that Mr. Malik was in a police station speaking with an officer on videotape;

   xix. It appears that the Defendant understood his rights and specifically that he did not have to speak with the officer about why he was there or what lead up to the police arresting him;

   xx. I find that there was no aura of compulsion at this point in the investigation, before the first breath sample was provided. Although initially, it appeared as though the defendant did not want to say anything, he appears to have simply changed his mind. The videotape makes it clear that the defendant wanted to speak with PC Leamon and the officer did nothing to cause this change of mind;

   xxi. I'm satisfied that the defendant's statements which preceded the first breath sample were voluntary, beyond a reasonable doubt.

8. With respect to the statements made in between the breath sample testing, I agree with counsel for the Defendant and the cases he cites. It is unclear that the defendant would have believed that the questions answered in preparation of the Alcohol Influence Report were not a part of the breath testing. Without a caution the defendant may have felt compelled to answer those questions. I'm not satisfied beyond a reasonable doubt that these utterances were voluntary in the circumstances.

Released: 01 May 2017

Justice G. Paul Renwick