ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR093822
DATE: 20120109

B E T W E E N:

Her Majesty the Queen

S. Ferrone, for the Crown

• and -

Asizkpor Dessouza

E. Ghebrai

Defendants

HEARD: January 4 and 6, 2012

RULING ON STATEMENT VOLUNTARINESS

Ricchetti, J.

The Application

[ 1 ] The Crown brings this application for an order determining that the statement made by Mr. Dessouza on April 27, 1996 to the police (“Statement”) was voluntary and available for use during the cross examination of Mr. Dessouza should Mr. Dessouza choose to testify.

The Issue

[ 2 ] The Defence chose not to bring a Charter motion. The sole issue raised by the Defence is that the Crown has established beyond a reasonable doubt that the Statement was voluntary because the Crown failed to lead evidence of police officers who may have had contact with Mr. Dessouza prior to the Statement being taken.

[ 3 ] There is no issue regarding:

• Mr. Dessouza’s ability to understand and communicate in English;

• Mr. Dessouza exercised of his rights to speak with counsel prior to the commencement of the interview;

• Mr. Dessouza understood he was under no obligation to speak with the police and if he did so, his statement could be used against him in court; and

• The circumstances during the interview, including being tired, hungry, hurt, the method of police questioning, the length of the questioning or any other aspects relating to police conduct or the interview.

The Evidence

[ 4 ] Constable D. MacNeil was the arresting officer. Mr. Dessouza was arrested at 5:02 am and read his rights and caution. Constable MacNeil testified that Mr. Dessouza appeared to understand and was able to communicate with him. Mr. Dessouza was cooperative.

[ 5 ] Mr. Dessouza was transported to the police station by Constable MacNeil. They arrived at 5:14 am. Constable MacNeil turned Mr. Dessouza to the booking officer. Constable MacNeil testified that neither he nor any other officers that he observed made any threat or offered any inducement to Mr. Dessouza.

[ 6 ] Constable MacNeil left Mr. Dessouza with the booking officer.

[ 7 ] Constable C. Christidis was assigned as the Officer in Charge of this case. He arrived at the police station at approximately 7 am.

[ 8 ] Shortly after 8 am Constable Christidis interviewed the complainant.

[ 9 ] After completing the interview, Constable Christidis prepared a report and the necessary documents to obtain a search warrant to search Mr. Dessouza’s home.

[ 10 ] A search warrant was obtained and executed by Constable Christidis and other officers.

[ 11 ] Throughout this period, Mr. Dessouza was in the police cells at 21 Division.

[ 12 ] After Constable Christidis returned to the police station, he and Constable Dannell commenced their interview of Mr. Dessouza. The interview starts at approximately 3:40 pm. This was Constable Christidis’ first interaction with Mr. Dessouza. The entire interview is videotaped.

[ 13 ] Constable Christidis made no threat or offered any inducement to Mr. Dessouza. Constable Christidis testified that Mr. Dessouza understood what was being communicated and was cooperative.

[ 14 ] Constable Christidis observed no issue regarding any alcohol, drugs, injury which would have affected Mr. Dessouza’s ability to make a decision as to whether or not to answer any questions.

[ 15 ] Constable L. Dannell was involved in the investigation.

[ 16 ] Constable Dannell first met Mr. Dessouza when he participated in the interview with Constable Christidis.

[ 17 ] Constable Dannell testified that Mr. Dessouza understood the communications and was cooperative. Mr. Dessouza did not appear to be affected by alcohol, drugs or injury.

[ 18 ] Both counsel agreed that both the video and the transcript of the Statement would form part of the evidence on the application and be reviewed by the court.

[ 19 ] The interview took approximately 2 hours. It commenced at 3:44 pm and ended at 5:42 pm.

[ 20 ] At no time during the interview did Mr. Dessouza request the police to cease questioning or appear to be in need of anything such as food, refreshment, rest, or clothing.

[ 21 ] There was no suggestion, during the interview by Mr. Dessouza, that he had been ill treated, offered any inducement or threatened in any way.

[ 22 ] The review of the videotaped statement is clear that Mr. Dessouza understood his rights to remain silent and that what he said could be used against him in court. Mr. Dessouza appeared under no stress of any threat, any injury or other condition which affected his ability to decide whether or not to respond. Mr. Dessouza was alert and confident. He was cooperative and anxious to provide his explanation to the police. His will did not appear to be overborne or that any of his statements were made in fear or in hope of advancement. Much of the interview is Mr. Dessouza repeatedly denying that he committed the offence and denying the facts suggested by the constables. At times, Mr. Dessouza posed questions to the constables. There is simply no hint or suggestion during the interview that Mr. Dessouza was acting under any threat or inducement.

[ 23 ] It is important to note that, when confronted with some evidence from the complainant, Mr. Dessouza does near the end of the interview make certain inconsistent statements to what he had told the police earlier in the interview. However, whether the statement is inculpatory or exculpatory, the requirement that the Crown establish the Statement’s voluntariness is the same.

The Defence Position

[ 24 ] The sole issue raised by Defence counsel was that there is a period of time from approximately 5:15 am to 3:40 pm, some 10 ½ hours, where the Crown has offered no evidence of any possible interactions between other police officers and Mr. Dessouza. As a result, the Defence submits the Crown has failed to discharge its burden to establish beyond a reasonable doubt that the Statement was voluntarily made.

[ 25 ] The Defence relies on R. v. Holmes , 2002 45114 (ON CA) , [2002] O. J. No. 4178 (Ont. C. A.).

The Crown Position

[ 26 ] The Crown submits that she has called the primary officers involved in the investigation and the interview. The suggestion that another officer, uninvolved in this case, would have made a threat or offered some inducement is mere speculation. Further there is no evidence from the videotaped interview to suggest that the exchanges were voluntarily made by a person with an operating mind.

The Law

[ 27 ] The facts in Holmes , supra, were that the interview took place some 16 hours after the accused had been arrested. The interview lasted over 5 hours, concluding at 3:33 am. There are a number of unique facts in Holmes , not present in this case:

i. The accused and the police had clearly a history of dealing with each other. In fact, there almost appeared to be some animus between the accused and one officer as can be seen from their exchange shortly after the arrest. See Holmes para 8 ;

ii. Despite the 16 hour delay, the accused had not had an opportunity to speak to counsel until after the interview had started. See Holmes para 11 ;

iii. The accused was brought to the interview room in paper coveralls resulting in the accused being cold. See Holmes para 11 ;

iv. The 5 hour interview extended well into the night and into the early hours of the morning. See Homes para 11;

v. The court concluded there was “No explanation was provided for why he was not taken before a justice and no account was offered for the time that he was in police custody.” See Holmes para 25 ;

vi. There was simply no evidence as to why the interview was delayed for 16 hours. See Holmes para 13 .

[ 28 ] The Court of Appeal in Holmes ruled that the Crown had failed to prove beyond a reasonable doubt that the statement was voluntary.

[ 29 ] In R. v. Menezes , O.J. 3758, Justice Hill, in a case where the interview took place some 3 ½ hours after the arrest, made the following statement at para 19 and 20

The facts here are a far cry from the circumstances in a case like R. v. Woodward (1975), 1975 1471 (ON CA) , 23 C.C.C. (2d) 508 (Ont. C.A.) where the prosecution failed to call persons in authority who had contact at all relevant times with an accused between his arrest and the making of a statement. There is no absolute rule that every person in authority irrespective of the degree of contact with the accused need be called on a confessional voir dire. Each case turns on its own facts. A flexible rule designed to examine the role of any police officer with real investigatory or custodial contact generally promotes meaningful scrutiny of relevant governmental conduct.

Not only the facts here, but also the relevant jurisprudence respecting the Crown’s obligation to call all persons in authority, support rejection of the accused’s argument: R. v. S. (R.J.) (1996), 1996 NSCA 201 () , 110 C.C.C. (3d) 535 (N.S. C.A.) , at 554-5 per Hallett J.A. (leave to appeal refused [1997] 2 S.C.R. xv (S.C.C.)); R. v. Genaille , (1997), 1997 4333 (MB CA) , 116 C.C.C. (3d) 459 (Man. C.A.) at 463-6 per Helper J.A. (leave to appeal refused [1997] 3 S.C.R. ix (S.C.C.)); R. v. Kacherowski (1977), 1977 1987 (AB CA) , 37 C.C.C. (2d) 257 (Alta. C.A.) at 262-3 per Lieberman J.A.; R. v. Wert (1979), 1979 4421 (BC CA) , 12 C.R. (3d) 254 (B.C. C.A.) , at 257-8 per McFarlane J.A.; R. v. Settee (1974), 1974 971 (SK CA) , 22 C.C.C. (2d) 193 (Sask. C.A.) at 206-7 per Culliton CIS.; R v. Garfield (1974), 1974 1632 (CMAC) , 21 C.C.C. (2d) 449 (Can. Ct. Martial App. Ct.) , at 456-7 per Sinclair J.A.

[ 30 ] Justice Hill found the statement to be voluntary, despite the fact there may have been other officers who had contact with the accused prior to the interview but had not been called to testify at the voir dire .

[ 31 ] In R. v. Samroo, Brown, Mercury and Angus , (September 22, 2010 CR-3067) Justice Sproat dealing with this same issue, made the following statement at page 6:

The question really revolves then around the question of whether there is a possibility that there was a rogue officer, unconnected to the investigation, who took it upon him or herself to speak to the accused in a manner to influence them and yet no hint of that influence was present in anything that was scene (sic) on the interview.

We tell juries that they do not need to be satisfied of things to an absolute certainty. They need to be satisfied beyond a reasonable doubt. The omission by the Crown to call every officer who might have been in and out of the cells, to call every person who might have walked an accused up to an interview room, I suppose, does preclude the Crown from proving to an absolute certainty that no one had any sort of improper contact with the accused.

I am, however, certainly satisfied beyond a reasonable doubt that there is no evidence to suggest that any officers that had any legally meaningful contact were not called, and having reviewed the statements, I am certainly satisfied beyond a reasonable doubt that the statements were made voluntarily.

[ 32 ] In R. v. W. G , [2010] O.J. No. 4484 (S.C.) Justice Spies dealt with the voluntariness of statements given by two accused. The Crown did not call the officers who might have had contact with one of the accused before he was interviewed some almost 11 hours later and after the accused had been transported between police stations in different cities. The only officers who testified were the arresting officer and the interview officer. Justice Spies concluded it was not necessary for the Crown to “account for every part of that period with respect to contacts with the accused.” See para 32.

[ 33 ] At paras. 33 and 34, Justice Spies went on to state:

In The Law of Evidence in Canada , Sopinka, Lederman and Bryant, LexisNexis Canada Inc. 2009, at para. 8.136, the authors state:

Generally, all witnesses involved in the taking of the statement must be called to testify concerning the surrounding circumstances. ... There is no rule of law that a statement must be rejected because of the mere possibility or conjecture of an earlier conversation in which threats may have been made", citing R. v. Chow (1978), 1978 2499 (BC CA) , 43 C.C.C. (2d) 215 , at 224-25, (B.C.C.A.) .

I drew the Chow decision to the attention of counsel so that they could comment on it. In Chow , the British Columbia Court of Appeal distinguished Koszulap and stated as follows (at paras. 17 and 18):

17 It was submitted also that the statements should have been rejected as evidence because the Crown did not call as witnesses all persons, especially a police matron, who may have been involved in the detention and treatment accorded to Limerick between the time of her arrest and the time of her interview with the two officers. There is no suggestion in the evidence, either directly or by any reasonable inference, that any person in authority conversed with her about her involvement in the offence alleged during that time. The only evidence is to the contrary, although not conclusive. This distinguishes the case from R. v. Botfield (1973), 1973 1548 (BC CA) , 28 C.C.C. (2d) 472 , 32 C.R.N.S. 1 , [1975] W.W.D. 168 ; R. v. Koszulap (1974), 1974 1461 (ON CA) , 20 C.C.C. (2d) 193 , 27 C.R.N.S. 226 , and R. v. Woodward (1975), 1975 1471 (ON CA) , 23 C.C.C. (2d) 508 , which were relied upon by counsel ... The leading authority in the matter appears to be Thiffault v. The King (1933), 1933 52 (SCC) , 60 C.C.C. 97 , [1933] 3 D.L.R. 591 , [1933] S.C.R. 509 , where Duff, C.J., said at p. 103 C.C.C., p. 515 S.C.R.:

Where such a statement is elicited in the presence of several officers, the statement ought, as a rule, not to be admitted unless (in the absence of some adequate explanation of their absence) those who were present are produced by the Crown as witnesses, at least for cross-examination on behalf of the accused.

18 I think the application of this dictum must depend on the circumstances of each case. In the absence of some evidence of conversations with a person in authority before the statement was made, I do not think there is a rule of law which requires rejection of a statement because of the mere possibility or conjecture of an earlier conversation in which threats or promises have been made. In my opinion, this ground of objection to admissibility must be rejected. (emphasis mine)

[ 34 ] Justice Spies went on to find the statement to be voluntary.

Application to this case

[ 35 ] All the officers involved in the arrest and investigation have been called as witnesses. There is no suggestion there were any other officers which had significant involvement in this case that were not called.

[ 36 ] The only evidence is that Mr. Dessouza remained in the booking cells until the interview. The officers not called were booking officer(s), duty officer(s) or police officers who might be walking through the booking cells – There is no evidence any of these police officers had any knowledge or no direct involvement in this investigation. There is not the slightest hint of any evidence that there was any meaningful contact between any other police officers and Mr. Dessouza from the time of booking until the interview. There isn’t even any evidence as to why any of these other police officers would have had any inappropriate contact with Mr. Dessouza. Any such contact is mere speculation and would suggest that some other police officer(s) uninvolved in this case would have taken it upon themselves, for some unknown reason, to have inappropriate contact with Mr. Dessouza. There was not a single hint of this in any of the cross examination of the three primary officers involved.

[ 37 ] There is no suggestion of any prior dealings between Mr. Dessouza and police officers as there was in Holmes which might have raised a concern about possible communications after arrest and pending the interview.

[ 38 ] There is simply no reason for anyone else at the police station to have tried to persuade, by threat or inducement, Mr. Dessouza to make a statement.

[ 39 ] The videotaped interview does not disclose the slightest hint that Mr. Dessouza was responding to the police officers because of any threat or inducement made by any other officer while in the booking cells awaiting the interview.

[ 40 ] What is clear from the videotaped statement is that Mr. Dessouza was communicating with the police to persuade the interviews that he had not sexually assaulted the complainant and should be released.

[ 41 ] The Crown has called evidence to explain why there was a reasonable delay in the interview – interview of the complainant and the search of Mr. Dessouza’s house. In the circumstances of this case, the delay in interviewing Mr. Dessouza was reasonable and not done to suborn his will to make a statement.

[ 42 ] The interview took place in the middle of the afternoon. While it is true that Mr. Dessouza was arrested early in the morning. It is speculation to conclude that he was tired or sleep deprived. He certainly does not appear that way in the videotaped interview. He appears to be fully engaged, alert and ready to deal with all of the police questions, raise questions of his own and to persuade the police of his innocence.

[ 43 ] Mr. Dessouza, having received legal advice, understood that he had no obligation to say anything to the police (page 6 of the transcript). Mr. Dessouza appears to have made a voluntary choice to speak with the police and tell them he did not sexually assault the complainant.

[ 44 ] There is no suggestion there was any delay in ensuring Mr. Dessouza attend before a justice for a show cause hearing as there was in Holmes .

[ 45 ] In essence, the fundamental issue is whether or not the absence of any police officer which may have had any contact with Mr. Dessouza after Constable MacNeil left him with the booking officer and prior to the interview, raises a reasonable doubt as to the voluntariness of the Statement.

[ 46 ] For the reasons set out above, in the circumstances of this case, it does not.

Conclusion

[ 47 ] The Statement is admissible for the Crown’s use to cross examine Mr. Dessouza, if Mr. Dessouza chooses to testify.

Ricchetti, J.

Released: January 9, 2012.

COURT FILE NO.: CR093822
DATE: 20120109

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – Asizkpor DESSOUZA Defendant RULING ON STATEMENT VOLUNTARINESS Ricchetti, J.

Released: January 9, 2012