ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 11-5000245-0000
DATE: 20120531
BETWEEN:
HER MAJESTY THE QUEEN – and – MOHAMED MUHYADIN MOHAMED Defendant
Scott Arnold , for the Crown
John F. Scandiffio , for the Defendant
HEARD: March 5, 6, 7, 8, 9, 12 and 14, 2012
MID TRIAL RULING
Pattillo J. :
Introduction
[ 1 ] The accused, Mohamed Mohamed, is charged with robbery. During the trial before me alone, the Crown sought to introduce a statement alleged to have been made by Mr. Mohamed to police on October 8, 2009, after his arrest on the charge before the court.
[ 2 ] Following a voir dire , I held that the statement was voluntary and could be admitted in evidence. I advised the parties that I would provide reasons for my decision in due course. These are my reasons.
Facts
[ 3 ] On the afternoon of October 1, 2009, the Bank of Montreal branch at 141 Saturn Road was robbed by a single male. The male approached a teller and handed her a note that said: “Give me all your money. $20,000 I have a gun.” The teller complied and the robber then fled the Bank.
[ 4 ] The police were called and they commenced an investigation. With the help of photos taken from the surveillance videos inside the Bank, they were able to identify the accused as the person who robbed the Bank. The police obtained a search warrant for the accused’s residence which they executed early on the morning of October 8, 2009.
[ 5 ] The accused was arrested at his residence during the execution of the search warrant and advised of his right to counsel. He was taken to 22 Division. He was booked and placed in an interview room at the station. There is no issue concerning any discussion between the police and the accused before he was put in the interview room.
[ 6 ] Detectives Kelly and Taylor entered the interview room at around 8 am. The accused asked to go to the washroom. Detective Kelly said they accompanied him to the washroom and then returned to the interview room. When they returned to the room, Mr. Mohamed said that it was “the worst fucking day of my life.” Detective Kelly asked Mr. Mohamed if he wanted to call a lawyer. The accused responded that he didn’t know. Detective Kelly then called duty counsel on the phone outside the room. When he got the lawyer on the phone, he gave it to Mr. Mohamed and left him alone in the interview room to speak with the lawyer. The discussion lasted approximately 2 minutes. When the call ended, Detectives Kelly and Taylor re-entered the room. Detective Kelly showed Mr. Mohamed his badge and asked him if he understood the charges he was under arrest for. Mr. Mohamed responded: “yes sir.” He then asked him if he understood his rights to counsel as they were explained to him and he again answered: “yes sir.” He confirmed that he had just spoken to duty counsel. Mr. Mohamed then said: “Boss, what kind of deal can you give me right now?” Detective Kelly responded that he couldn’t make any deals.
[ 7 ] The Detective then told the accused that his mother had signed the Bank surveillance photos saying it was him in the picture. The accused responded that it was impossible because she couldn’t read. Detective Kelly then said he would like to take a video statement and the accused replied “ok sir.” Detective Kelly then told him to knock on the door if he would like to speak with them further. He again responded “yes sir.” The Detectives then left the room. Mr. Mohamed never knocked on the door. Detective Kelly had no further contact with Mr. Mohamed.
[ 8 ] The Detectives left the room at around 8:34 am.
[ 9 ] Detective Taylor essentially confirmed Detective Kelly’s evidence of what occurred in the room and what Mr. Mohamed said. He differed from Detective Kelly in parts of his evidence. He said that just Detective Kelly accompanied Mr. Mohamed to the washroom. He also said that Mr. Mohamed had spoken to duty counsel earlier before they entered the room. His recollection of what Mr. Mohamed said was slightly different than Detective Kelly’s. He said Mr. Mohamed said: “Boss, what kind of deal can you offer me right now?” as opposed to the words “give me” as Detective Kelly had testified to.
[ 10 ] Mr. Mohamed testified on the voir dire . While he agreed he told the officers that it was the worst day of his life, he denied that he said the swear word. He denied that he used the word “Boss” or that he asked the police for a deal. He also denied that the officers offered to let him give a video statement. He said if they had done so, he would not have given any statement. He agreed that he did tell the officers that his mother could not read.
[ 11 ] Mr. Mohamed admitted that the police did not threaten or assault him nor did they make any promises to him. He agreed that when he asked to go to the washroom, they allowed him.
Discussion
[ 12 ] In R. v. Gauthier , 1975 193 (SCC) , [1977] 1 S.C.R. 441 (S.C.C.), the Court held that on a voir dire to determine whether a statement made to a person in authority is admissible, a trial judge is required to decide:
Whether there is some evidence that it was made; and
Whether it was given voluntarily.
[ 13 ] Here there is evidence from the two police officers who were in the room with Mr. Mohamed that the statement in issue was made. Mr. Mohamed denies that he made the statement. I agree with the Crown that the issue of whether the statement was made is not to be decided on the voir dire . It is more properly an issue for the trier of fact at trial in the event the statement is admitted as being voluntary. All that is necessary in the voir dire is that there must be some credible evidence that the statement was made. The evidence of the two officers meets that test in this case. See: R. v. Lapointe (1983), 1983 3558 (ON CA) , 9 C.C.C. (3d) 366 (Ont. C.A.) at para. 39 .
[ 14 ] The primary issue for determination on the voir dire is whether the Crown has established on the evidence that the statement is voluntary. I am satisfied beyond a reasonable doubt on the evidence that the statement was made voluntarily by Mr. Mohamed. The officers were engaged in general introductory statements when the accused made the statement in issue. It was not made in response to any question asked of him. It was made after Mr. Mohamed had been advised of his rights and very shortly after he had spoken to a lawyer. Mr. Mohamed admits that he was not threatened, assaulted and no promises were made to him by the officers.
[ 15 ] The defence submits that the failure of the officers to record Mr. Mohamed’s statement in circumstances where video recording equipment was readily available makes it inherently suspect and therefore it should not be admitted.
[ 16 ] The question of whether a statement that has not been recorded is voluntary depends on the circumstances of the case: R. v. Swank (2005), 2005 3326 (ON CA) , 194 O.A.C. 155, [2005] O.J. No. 493 (C.A.) at para. 9 . There is no absolute rule that requires a statement by an accused must be recorded: R. v. Moore-McFarlane (2001), 2001 6363 (ON CA) , 56 O.R. (3d) 737; [2001] O.J. No. 4646 (C.A.) at para. 64.
[ 17 ] In Moore-McFarlane , Charron J.A. (as she then was) stated as follows at paras. 65 and 67:
[T]he Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.
[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.
[ 18 ] Subsequent jurisprudence has interpreted Moore-McFarlane , as providing a test that can be used to determine whether a statement was given under suspicious circumstances: see R. v. Ahmed (2002), 2002 695 (ON CA) , 170 C.C.C. (3d) 27; [2002] O.J. No. 4597 (C.A.) and R. v. Burke , 2010 ONSC 6530 , [2010] O.J. No. 5219.
[ 19 ] In my view, the failure of the officers to record Mr. Mohamed’s statement in the interview room does not undermine the evidence from both the officers and Mr. Mohamed that it was given voluntarily and in the absence of any threats, coercion or trickery.
[ 20 ] Nor, in my view, do the circumstances surrounding the taking of the statement give rise to a concern that it was obtained in suspicious circumstances. Notwithstanding that Mr. Mohamed was in custody at the time of the statement and there was video recording equipment nearby, in my view, the two officers did not deliberately set out to interrogate Mr. Mohamed when they entered the interview room. Rather, their main purpose, beyond ensuring that he understood the charges against him and his rights was to see if he would agree to provide a video statement for the court. Even when he agreed to do so, they did not take him to the interview room. They left the room and gave him an opportunity to consider the matter and contact them if he wished to go ahead.
[ 21 ] For the above reasons, I held the statement by Mr. Mohamed to the police following his arrest on October 8, 2009 was given by him freely and voluntarily and was therefore admissible in evidence in his trial.
L.A. Pattillo J.
Released: May31,2012
Duplicate Release Block
COURT FILE NO.: CR 11-5000245-0000
DATE: 20120531
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:
HER MAJESTY THE QUEEN – and – MOHAMED MUHYADIN MOHAMED
MID TRIAL RULING Pattillo J.
Released: May 31, 2012