WARNING

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

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

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

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

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

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

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

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

Court Information

Date: 2017-06-29

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Petar Bozinovski

Before: Justice M. Greene

Reasons for judgment dated: June 29, 2017

Counsel:

• R. Beresowsky for the Crown
• L. Shemesh for Petar Bozinovski

Background

[1] Mr. Bozinovski is charged with fraud in relation to a loan that an alleged co-conspirator, Mr. Shaikh, took out in 2011. In 2011, Mr. Shaikh applied for a loan to purchase bakery equipment for a company he was in the process of purchasing, Pita Pita Bakery. In support of his application for the loan, Mr. Shaikh provided an invoice from a company named "Marleeco". This invoice itemized bakery equipment that was to be purchased by Pita Pita from Marleeco. Based on this invoice and other documents provided by Mr. Shaikh and Mr. Boghossian to the bank, a loan was issued to Mr. Shaikh for the cost of the bakery equipment listed in the Marleeco invoice. The loan was secured against the bakery equipment. The company Marleeco was registered to Mr. Bozinovski and was opened at the same time the invoice was issued.

[2] After the loan was approved, the bank transferred the money to Mr. Boghossian, counsel for Mr. Shaikh. The money was then transferred to Marleeco. Upon receipt of the funds, Marleeco released funds to pay off Mr. Bozinovski's car loan while other money went directly to Mr. Bozinovski's bank account. Marleeco did not deliver any bakery equipment to Pita Pita Bakery.

[3] It is alleged that Mr. Bozinovski created this false invoice to help Mr. Shaikh obtain a fraudulent loan and that he was paid for creating this false invoice. At his preliminary inquiry the Crown sought to introduce a statement made by Mr. Bozinovski on March 18, 2015 to the police. After a voluntariness voir dire, I excluded the statement on the basis that the Crown had not met its burden. At the time, I provided very brief reasons with more detailed reasons to follow. Mr. Bozinovski was subsequently committed to stand trial. Below are my reasons.

Relevant Evidence on the Voluntariness Voir Dire

[4] In December of 2014, Detective Moran was advised by a bank investigator about an alleged fraud committed by Mr. Shaikh and Mr. Boghossian. It was alleged that Mr. Shaikh obtained loans fraudulently and that Mr. Boghossian assisted with the fraudulent loans. The bank investigator had already conducted his own investigation and handed over his investigative file to Detective Moran. Detective Moran reviewed the investigative file and conducted some of her own investigations, including starting to prepare a production order for Mr. Bozinovski's bank accounts. She then contacted Mr. Bozinovski on March 18, 2015. Prior to contacting Mr. Bozinovski, Det. Moran had the following documents:

a) Investigative files from the banks;

b) Account opening dates for Marleeco (a company owned by Mr. Bozinovski);

c) An invoice from Marleeco for baking equipment that Detective Moran knew was false because no baking equipment was ever sold by Marleeco to Mr. Shaikh or any of his companies;

d) A FINTRAC report from the bank which noted that certain transactions from accounts opened in Mr. Bozinovski's name were suspicious. These transactions included moving funds from Marleeco into his personal account. This was an indication that his accounts had been used to launder funds; and,

e) That Marleeco received $650,000 in relation to this business transaction, yet none of this money was used to purchase bakery equipment. The money was used to cover a car loan and some of the money went directly into Mr. Bozinovski's account.

[5] Armed with this information, Det. Moran telephoned Mr. Bozinovski at 10:30 a.m. on March 18, 2015 and asked if Mr. Bozinovski was willing to come and speak to her about his company, Marleeco. Mr. Bozinovski advised that he would and agreed to come to the police station at 1:30 p.m. that same day.

[6] According to Det. Moran, her sole purpose for interviewing Mr. Bozinovski was just to obtain information. In her mind, he was just a witness.

[7] Upon his arrival at the station, Det. Moran testified that she told Mr. Bozinovski that he did not have to stay and confirmed that he was there voluntarily. This was repeated on video at the start of the interview in the form of the standard witness caution. Mr. Bozinovski stated on video that he understood that he could leave at any time.

[8] The interview lasted almost two hours. It started with a number of open ended questions. Approximately half way through the interview the questioning became accusatory and gave the appearance that the officers did not believe Mr. Bozinovski and that he was a suspect as opposed to a witness. Det. Moran testified that despite the tone of the interview, Mr. Bozinovski's status as a witness did not change during the interview. She did agree, however that at the time she noticed that Mr. Bozinovski became nervous, his answers did not make sense and it appeared that he was covering up for someone.

[9] Mr. Bozinovski was not arrested until some time later. Det. Moran testified that the additional information that she received after the interview which gave her grounds to arrest Mr. Bozinovski included confirmation that the bakery equipment was never delivered and receipt of Mr. Bozinovski's bank records.

[10] Mr. Bozinovski testified on the voir dire. According to Mr. Bozinovski, at the time of the interview he was unclear as to why he was being questioned. He did not know what the officers were investigating nor did he know that he was suspected of engaging in any criminal acts. Mr. Bozinovski's evidence on this point is corroborated by the fact that early on in the interview, Mr. Bozinovski asked the officer what the interview was about. The officer only responded that they wanted to ask questions about his company, Marleeco.

[11] Mr. Bozinovski further testified that while the officers told him on video that he could leave at any time, he did not feel that this was a real option because prior to being video-taped he had asked Det. Moran when he would be permitted to leave to which she responded that she would tell him when he could leave.

[12] Mr. Bozinovski testified that he had asked Det. Moran, before the interview started, if he needed to contact a lawyer. She told him that he did not. Mr. Bozinovski further testified that had he known he was being investigated for a fraud, he would have contacted a lawyer. Mr. Bozinovski was given the standard witness caution at the beginning of the interview.

[13] At the end of the interview Mr. Bozinovski asked the officers if Mr. Shaikh's company, Pita Pita, was being investigated for criminal acts. Detective Moran at this point confirmed that Pita Pita was being investigated for some fraudulent loans.

Relevant Legal Principles

[14] The confession rule in Canadian jurisprudence requires that before a statement made by a defendant to a person in authority can be admitted into evidence against that defendant, the Crown must prove that the statement was made voluntarily.

[15] The confession rule was crafted with an understanding that there are two competing interests at stake: protecting the rights of an accused and the need to give police latitude to investigate and solve crimes (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at paragraph 32).

[16] In R. v. Oickle, supra, the Supreme Court of Canada highlighted four categories of police activity that could lead to the extraction of an involuntary confession:

i) threats/inducements;

ii) oppressive circumstances;

iii) lack of operating mind; and,

iv) trickery.

[17] In relation to the first two categories, the court must assess whether the threat, inducement or oppressive circumstances caused the suspect's will to be overborne (see paragraph 57 of R. v. Oickle, supra). The operating mind requirement relates to the suspect's awareness of what he/she is saying and that it is being said to a person in authority who can use it to the suspect's detriment (see paragraph 63 of R. v. Oickle, supra). The last category, trickery, relates to actions of the police that would shock the community's conscience. The first three categories to a large degree are concerned with reliability of the confession while the last category is more concerned with maintaining confidence in the criminal justice system.

[18] While reliability is one of the core concerns of the confession rule, this is not the sole concern. The confession rule is also inherently linked to the rule protecting a defendant against self-incrimination. Justice Charron stated in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at paragraph 21:

Although historically the confession rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J. as "a general organizing principle of criminal law" from which a number of rules can be derived….

Charron J. further stated at paragraph 35 of R. v. Singh, supra:

Ten years later, this Court in Oickle made express reference to the analysis in Hebert and embraced this modern expansive view of the confessions rule which, significantly for our purposes, clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities: see paras. 24-26. Iacobucci J. then reviewed the various components of the contemporary confessions rule, stressing, of course, that "[t]he application of the rule will by necessity be contextual" and that "all the relevant factors" must be considered (para 47). …

[19] While the confession rule applies only to statements made to persons in authority, the confession rule does not depend on whether or not the defendant was detained at the time the statement was made. While this may be a relevant factor in assessing whether or not the statement made was voluntary, the confession rule applies to any statement made to a person in authority regardless of whether or not that person was detained at the time the statement was made (see R. v. Oickle at paragraph 30).

[20] The concept of an operating mind which is the main focus in the case at bar, does not require a high level of awareness. A statement will be voluntary as long as the person making the statement is aware of what he/she is saying, that the statement is being made to a person in authority and that it can be used by that person to the interviewee's detriment. The majority of the jurisprudence on what is required in law to meet the test for an operating mind has focused on whether the interviewee is sufficiently cognizant of his/her surroundings so as to know what is being said and that it is being said to a person in authority. Knowledge of the fact that it can be used to his/her detriment, however, is also required. As was stated in R. v. Chui, 2015 ONSC 552, [2015] O.J. No. 382 (S.C.J.) at paragraph 28:

To be voluntary, an accused statement must be the product of an operating mind. This implies no "higher degree of awareness than knowledge of what the accused is saying and that he is saying it to the police officers who can use it to his detriment:" Oickle, para. 63, citing R. v. Whittle, [1994] 2 S.C.R. 914, at p.936, where Sopinka J. adopted Pratte J.'s statement in Horvath v. the Queen, [1979] 2 S.C.R. 376, at p.425, that "voluntariness implies an awareness of what is at stake in making a statement to a person in authority". [Emphasis added]

Findings of Fact

[21] In my view, Mr. Bozinovski was a suspect at the start of the interview. The police may not have had enough information to make an arrest, but he was definitely someone that they suspected was a party to the fraud at the start of the interview. In my view, the vast amount of information that the police had prior to the interview coupled with the tone of the latter half of the interview leaves me with no doubt that both officers viewed Mr. Bozinovski as a suspect in the fraud albeit they were still gathering additional information as part of the investigation and were not yet in a position to make an arrest.

[22] In reaching the above noted conclusion I appreciate that Detective Moran and Detective Ng consistently testified at the preliminary inquiry that at the time of the interview Mr. Bozinovski was a witness as opposed to a suspect. Det. Moran testified that she did not view Mr. Bozinovski as a potential suspect at this point in time because she did not yet have confirmation that he did not purchase the bakery equipment listed in the invoice nor did she have confirmation from the bank that Mr. Bozinovski was the person whom opened the bank account for Marleeco. I reject her evidence on this point. It was clear that Mr. Bozinovski was the owner of Marleeco. The obvious inference is that he controlled the bank accounts as well. Moreover, Det. Moran knew, as she repeated it frequently in the interview, that no bakery equipment had been delivered to Mr. Shaikh. It is not believable that the officer thought that perhaps Mr. Bozinovski delivered the equipment to some other unknown address.

[23] In addition to the vast amount of evidence pointing to Mr. Bozinovski being a party to Mr. Shaikh's fraud, a review of the entire interview establishes that by 2:30 p.m., the interview became an interrogation. A full review of the interview does not support the conclusion that this was a standard witness interview. By 2:30 p.m., the officer's tone and the questions posed became accusatory and aggressive. Some of the examples of the questioning that support this conclusion include:

i) During the second half of the interview, whenever Mr. Bozinovski indicated that he could not recall something, the officers questioned why it was that he could not recall the details of the transaction. The transaction took place years earlier. There is nothing suspicious about having a limited memory of an event that took place years earlier. It is only suspicious if you disbelieve the person and suspect the person of wrong doing;

ii) At 2:56 p.m., Det. Moran outright accused Mr. Bozinovski of defrauding the bank;

iii) At 2:57 p.m., Mr. Bozinovski retrieved a note from his bag in order to help him refresh his memory. The officers aggressively questioned him about where this note came from as though there was something improper about him utilizing a memory aid;

iv) At page 133 of the interview, Det. Moran stated "you are sitting on $50,000.00 of the banks' money that was obtained by fraud" (note in the transcript a question mark is used but on the audio no question was posed. This was a statement);

v) Det. Moran also stated at page 135 of the interview "what were you celebrating, the fact that you ripped off the bank?"; and,

vi) At the very end of the interview, Det. Ng told Mr. Bozinovski that this was his "last shot" to provide truthful information and that she thought he was not credible.

[24] In my view all these comments lead to only one conclusion; that both Det. Moran and Det. Ng did not believe Mr. Bozinovski and viewed him as a suspect.

[25] In addition to these comments, there are other important factors that in my view further establish that both officers viewed Mr. Bozinovski as a suspect. Firstly, the officers treated Mr. Bozinovski differently than they treated all the other witnesses. The other witnesses, when approached by the officers, were provided background information about the purpose of the interview. In particular, they were told that the officers were investigating a fraud and that they wanted to confirm certain information. No such information was provided to Mr. Bozinovski. Secondly, at time of the interview, the officers had a report from the bank that Mr. Bozinovski's account was suspected of money laundering, evidence that Mr. Bozinovski received money from the loan and evidence that bakery equipment was never delivered to Pita Pita. All this evidence clearly pointed to Mr. Bozinovski as a suspect.

[26] I accept Mr. Bozinovski's evidence that he did not know he was a suspect in a fraud investigation when he attended at the police station and that he did not appreciate that anything he said in this interview could be used to his detriment. I accept his evidence because it is consistent with all the other evidence. Mr. Bozinovski was not given any information about why the police wanted to interview him. He was not told that they were investigating a fraud nor was he told that the police were investigating the loan that Mr. Shaikh received as a result of the invoice produced by Marleeco. Instead, he was only advised that the police wanted to ask him some questions about his company, Marleeco. I further note that the transaction in question occurred years earlier which made it less likely that Mr. Bozinovski would have appreciated or been in a position to infer the purpose of the interview or the potential risk to himself prior to agreeing to meet with the police. Mr. Bozinovski's lack of information is eminently clear from his closing question to the officer where he asked the police for the first time what it was they were investigating. At that point, for the first time, he was advised that they were investigating a fraud.

[27] I therefore find as fact that when Mr. Bozinovski agreed to meet with the police, he was a suspect in the fraud. I further find that Mr. Bozinovski knew what he was saying when he spoke to the police and he knew he was speaking to a person in authority. He did not, however, know that the police were investigating him, or that they were even investigating an alleged fraud that involved him.

Analysis

[28] In light of the finding of facts outlined above, the remaining question is whether given Mr. Bozinovski's lack of knowledge that he was being investigated or that the police were investigating a fraud, does this raise a reasonable doubt about the voluntariness of his statement.

[29] In assessing whether it does, I must look at the entire context of the interview. The failure to advise a suspect of their right to counsel by itself may not be sufficient to leave the judge with a reasonable doubt about the voluntariness of a statement. Similarly a single threat or inducement may be insufficient to establish that the statement was not made voluntarily. The court, in assessing voluntariness, must look at all the interactions between the suspect and the police and assess whether or not in all the circumstances the suspect's will was overborne by the police conduct. This approach was made very clear by the Supreme Court of Canada in R. v. Oickle, supra, at paragraph 71:

Again, I would like to emphasize that the analysis under the confession rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes, for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary.

[30] In the case at bar, no threats or inducements were made. There was nothing oppressive per se about the interview and no overt trickery was involved. Mr. Bozinovski received the typical witness warning at the start of the interview and was told by the officers that he did not have to make a statement. All these factors support a conclusion that the statement was made voluntarily. Counsel for Mr. Bozinovski argued that the statement was nonetheless not made voluntarily. Counsel argued that the fact that Mr. Bozinovski did not know that the statement could be used to his detriment raises a real doubt about whether the statement meets the test for voluntariness. Crown counsel argued that given the absence of any threat or inducement and the fact that he was not detained at the time the statement was made all support finding of voluntariness. In support of his argument, Crown counsel relied upon the extensive jurisprudence highlighting that a police officer's failure to give a suspect a caution is not determinative of whether or not the statement was made voluntarily. Since the absence of a caution is all that was missing in the case at bar, it is insufficient to raise a reasonable doubt about the voluntariness of the statement.

[31] I agree with Crown counsel that the failure to provide a caution to a suspect is but one factor to consider in the analysis and that there are many cases where the police have failed to provide such a caution yet the statement was still deemed to be voluntary. In the case at bar, however, it was not just that the officers failed to give Mr. Bozinovski a suspect caution. The police failed to give Mr. Bozinovski any information that would allow him to assess whether or not making a statement could be used to his detriment. It is the complete absence of information to assist Mr. Bozinovski in making an informed decision about whether or not to speak to the police that raises the voluntariness concerns.

[32] Crown counsel further argued that in the case at bar, any concerns about the absence of a caution are resolved by the fact that the officers gave Mr. Bozinovski the standard witness caution. This, he argued, ought to have been sufficient to drive home to Mr. Bozinovski that anything he said could be used in a prosecution to his detriment. In R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042 (C.A.), the defendant was interviewed by the police about the death of a child that had been in his care. At the time of the interview E.B. was a person of interest to the police and a potential suspect. Similar to the case at bar, prior to interviewing E.B. the police did not advise him that he was a suspect. He was, however, given the witness caution. The Court of Appeal held that the statement was made voluntarily. In reaching this conclusion, the court noted that E.B. had been advised that the police considered the death of the child to be suspicious, that he was a person of interest in the investigation, that the care givers were all being investigated and, that the police knew that E.B. was one of the child's caregivers. The court noted that in all these circumstances the witness caution was sufficient to drive home to the defendant that any statement he made may be used as evidence at their prosecution. The Court stated at paragraph 92:

A person of modest intelligence would be hard pressed not to conclude that, if she or he were to say anything that indicated a responsibility for what had happened to J.B. (1), such an acknowledgment may be used as evidence in their prosecution.

The court went on to state at paragraph 94:

Here, there were no threats or promises or "fear of prejudice or hope of advantage" to impede the voluntariness of N.K.'s statement. There was no oppression. He possessed the necessary operating mind which, as the Supreme Court has said, "does not imply a higher degree of awareness than knowledge or what the accused is saying and that he is saying it to police officers who can use it to his detriment".

[33] In the case at bar, a person of modest intelligence would not have known that any comments made could potentially link him to the fraud the police were investigating. In the case at bar, Mr. Bozinovski did not even know the police were investigating a fraud, let alone that his was involved in the fraud. In my view, this is an important distinction. In this context the witness caution would not have led Mr. Bozinovski to appreciate that anything he said may be used by the police to his detriment. As this is a necessary component to the voluntariness analysis, I am left in a reasonable doubt as to whether the statement was made voluntarily and it will therefore be excluded.

Released June 29, 2017

Justice Mara Greene