ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12/70000516/0000
DATE: 20120813
BETWEEN:
HER MAJESTY THE QUEEN – and – Mohamed Dahir Applicant
Lorna Spencer, for the Crown
Anthony Bugo, for the Applicant
HEARD: August 9 and 10, 2012
REASONS FOR DECISION ON SECTION 10 (b) APPLICATION
BeNOTTO, j.
[ 1 ] Mr. Dahir is charged with offences relating to an alleged gang sexual assault on September 19, 2010. He brings this application under Section 10(b) of the Charter t o exclude the statement he made to the police. There is no issue about the voluntariness of the statement. The issue is an alleged breach of his section 10(b) rights.
[ 2 ] On November 18, 2010 Mr. Dahir was at College Park waiting for a court appearance on a bail application in connection with unrelated charges. Two officers from the sex assault unit, Officers Akeson and Alexander went to College Park to see him. At 10:46 am, they arrested him for the gang sexual assault. He was told his rights to counsel and cautioned in what defence counsel said was “textbook” fashion.
[ 3 ] Mr. Dahir told Officer Akeson that he had a lawyer Philip Klumak. At 11:11 am Officer Akeson called Mr. Klumak’s office and left a message. Officer Akeson also contacted duty counsel at College Park and told her about the arrest. The officers told Mr. Dahir that they wanted to interview him. They left Mr. Dahir at the courthouse and had no further conversation with Mr. Dahir that day.
[ 4 ] The following day, November 19, 2010 at 9:15 in the morning, Officers Akeson and Alexander went to Toronto East Detention Center where Mr. Dahir was being held. They were told that he was back at College Park. The officers went to College Park, found Mr. Dahir at 10:55 am. They set up a videotape in the press room and began an interview.
[ 5 ] The beginning of the interview includes the following exchange:
AKESON: …I also understand that you’ve had an opportunity to speak to a lawyer. Just to clarify, we were here yesterday at which time we told you that you’re under arrest and you’re going to be charged with sexual assaul and gang sexual assutl. Have you had an opportunity to speak to a lawyer?
DAHIR: No.
AKESON: Have you had an opportunity to speak to duty counsel?
DAHIR: No. Yes yes yes yes yes
AKESON: okay. And you understand that duty counsel is somebody that can provide free legal advice
DAHIR: I have a lawyer sir and I don’t need duty counsel.
AKESON: Okay, but you had an opportunity to speak to duty counsel correct?
DAHIR: Yes.
[ 6 ] The interview then proceeds with Mr. Dahir repeated professing that he does not want to say anything, that he does not know what they are talking about and that he does not remember anything about September 19. The officers ask him various questions about where he lives, the clothes he owns and at one point ask him to take off his shirt to describe the t-shirts he is wearing underneath. They ask him when the last time he had sex and he does not recall. Later he says September then June. They ask him how long he has been in custody and he gets it wrong.
[ 7 ] They ask him for a DNA sample. Initially he says alright, but when read the caution he says he will not sign anything and wants his lawyer to explain it.
[ 8 ] The Crown’s case against Mr. Dahir includes a DNA sample of semen which, it will be argued confirms he had sexual intercourse with the complainant on September 19. The Crown seeks to use Mr. Dahir’s statement that he had not had sex since June in order to counter the anticipated defence of consent.
[ 9 ] The defence argues that the statement should be excluded. It is argued that there are two reasons the statement should be excluded:
The detention on November 19 was a second detention and he should have been recautioned; and
He was not given a reasonable opportunity to speak to counsel.
[ 10 ] The Crown argues that it was not a second detention and that the police did everything reasonably possible to implement the right to counsel. Officer Akeson spoke to duty counsel, called Mr. Dahir’s lawyer and waited 24 hours before taking a statement.
[ 11 ] This, in my view was not a second detention and it was not necessary to recaution him. He had been in custody continually from November 18 at 10:46 until the follow day. The officers did not release him and rearrest him. His detention had not changed. I agree with the Crown that this was not a “detention within a detention.” Mr. Dahir was in custody on November 18 and remained in custody on November 19. He did not need to be re-cautioned.
[ 12 ] However, the fact that he had been in custody and in court on another matter does impact the defence’s second argument, that he was not given a reasonable opportunity to speak to his counsel. The 24 hours that elapsed between the first and the second meeting with Officers Akeson and Alexander must be considered in the context of Mr. Dahir’s situation. He was in court at College Park waiting for a hearing. At the end of the appearance he was returned to the detention center. He was then brought to court again first thing the next morning. The opportunity for him to be diligent in exercising his rights was diminished.
[ 13 ] This becomes clear when the interview commences. He is asked if he had an opportunity to speak to a lawyer, He says no. He acknowledges that he spoke to duty counsel then quickly adds that he has a lawyer and does not need duty counsel. He then repeatedly asks that information should be sent to his lawyer. He says:
I don’t know what you are talking about…just give it to my lawyer…my lawyer would explain to me…I don’t even know why I am here.
[ 14 ] Mr. Dahir said he did not have the opportunity to speak to his lawyer. He indicated that he did not need duty counsel because he had a lawyer. He was vocal in his desire to speak to his lawyer and have his lawyer explain matters to him.
[ 15 ] I do not find that the Officers were acting in bad faith. However, they should not have continued with the interview until he was given an opportunity to speak to counsel. This would not have been difficult to facilitate. There was no urgency. Even another few hours would have afforded Mr. Dahir that opportunity.
[ 16 ] The statement is excluded.
[ 17 ] I do not allow the evidence under section 24(2). Although the police acted in good faith, the statement itself is not central to the Crown’s case. In fact, I find the statements sought to be relied upon by the Crown very ambiguous. Mr. Dahir repeatedly said he did not do this “crime.” The officer says that “maybe” this wasn’t a crime, implying that consensual sex is not illegal. This is never clarified. He is not asked directly whether he had sex with the complainant on September 19. He is not asked directly if she consented. The statement that he thinks the last time he may have had sex was September or June is not central to the Crown’s case even in an attempt to counter his defence of consent. A view of the statement as a whole confirms this.
[ 18 ] The Crown submits that if the evidence is excluded, I should still allow it to be used for cross-examination. The evidence was obtained by a breach of Mr. Dahir’s charter rights. It is constitutionally tainted and cannot be used by the Crown in cross-examination. In the rare event that circumstances change such that admission of the evidence would have an effect on the administration of justice the issue may be revisited. (See: R. v. Bisko ( 1998) 1998 , 14 C.R. (5 th ) 283.)
Benotto, J.
Released: August 13, 2012
COURT FILE NO.: 12/70000516/0000
DATE: 20120813
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN - and – MOHAMED DAHIR
REASONS FOR JUDGMENT Benotto, J.
Released: August 13, 2012