Her Majesty the Queen v. Peer Mohammad Khairi, 2012 ONSC 5549

COURT FILE NO.: 09-50000744-0000

DATE: 20121004

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PEER MOHAMMAD KHAIRI

Accused

Mr. Robert Kenny and Ms. Amanda Camara, for the Crown

Mr. Christopher Hicks and Mr. Anthony LaBar , for the Defendant

HEARD: September 12, 13, 14, 17, 18, and 19, 2012

VOIR DIRE #1

ADMISSIBILITY OF STATEMENTS

REASONS FOR DECISION

Clark J.:

THE APPLICATIONS

[1] The accused is charged with the second degree murder of his wife. The Crown alleges that, on March 18, 2008, he stabbed her to death in their Etobicoke apartment.

[2] The Crown seeks to prove voluntary statements the accused made to officers from the Toronto Police Service (“TPS”) Homicide Squad after his arrest. The accused resists that application.

[3] For his part, the accused applies to have his statements excluded on the basis that they were taken in breach of his rights pursuant to sections 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms (“Charter”).

[4] At the suggestion of the parties, the court conducted a “blended” voir dire; the following are my reasons for decision respecting both applications.

THE FACTS

[5] At approximately 1:50 p.m. on March 18, 2008, the accused telephoned 911 to request police assistance. When the accused indicated that he did not speak English, the operator asked what language he spoke. The accused indicated that he wished to have either a Hindi or Farsi interpreter and the operator promptly contacted a Hindi speaker unconnected to the police service.[^1] The remainder of the emergency call was conducted through the interpreter. The accused indicated that the police should attend his penthouse apartment, at 545 The West Mall, in Etobicoke, because his wife had been murdered. Various police units were immediately dispatched to the scene.

[6] In the course of the 911 call, at first the accused indicated only that “someone” had murdered his wife. Any uncertainty as to the identity of the killer was later dispelled, however, when the accused stated explicitly that it was he who had killed his wife. Crown counsel seeks to adduce the 911 call into evidence and counsel for the accused acknowledged at the outset of the voir dire that it is admissible.

[7] Once police officers were on scene, the 911 operator told the accused that there were officers outside his apartment and that he should surrender. He was told to come out slowly, holding his hands in front of him, so that the officers could see that he was not armed. Eventually, at 2:16 p.m., the accused emerged from his apartment. Although he was otherwise cooperative, the accused did not immediately obey the commands of the arresting officer, Police Constable Jonathan Ross, who told him to turn around and place his hands behind him. Ross deduced, correctly as it turns out, that the accused did not understand English.

[8] At 2:18 p.m., Ross recited to the accused the standard s. 10 (b) advisory from the rear of his memo book. When Ross asked the accused if he understood, the accused responded in a language Ross did not understand, thereby confirming Ross’ suspicions that the accused did not speak English. Ross therefore took it as a given that the accused had not understood what he just told him respecting his rights to counsel.

[9] On the instructions of a sergeant on scene, Ross and his partner, P. C. Jason Nott, transported the accused to 22 Division. Ross indicated that he had no conversation with the accused en route. For his part, Nott indicated that Ross did speak to the accused briefly, but only in an attempt to ascertain what language he spoke. According to Nott, the accused responded that he spoke Hindi.

[10] At 2:31 p.m., the officers arrived at 22 Division and paraded the accused before Sergeant Steve Pattison, in order to formally book him into the police station. When it became apparent to Pattison that the accused was not understanding what was being said during the booking procedure, he asked the accused how much English he understood. The accused replied, “Dari… Dari”. When Pattison attempted to continue in English, the accused stated, “No English”, and, a moment later, “No speak English”. At that point, realizing the futility of proceeding further in English, Pattison instructed Ross to take the accused to the Criminal Investigation Bureau (“CIB”) and lodge him in an interview room to await the arrival of an interpreter.

[11] Pattison then endeavored to secure the attendance of an interpreter by consulting a computerized list of TPS officers who speak languages other than English. He testified that there was no Dari speaking police officer on the list. That was later confirmed by Detective Joyce Schertzer, of 22 Division CIB, when, much later in the day, she, too, consulted the list. For his part, having discovered TPS had no Dari speaking officers, Pattison learned that there was a Hindi speaking officer, P. C. Mojit Paul, then on duty in neighboring 11 Division. Understanding from what little he knew of the case that the accused understood Hindi, Pattison arranged for P.C. Paul to attend 22 Division. Paul arrived at 3:00 p.m., at which point Pattison briefed him on the interpretation duty he was about to perform.

[12] At 3:03 p.m., the booking procedure was repeated, this time with Paul translating proceedings.[^2]

[13] Sgt. Pattison testified that he was satisfied from his observations that Paul understood the accused and vice versa. More particularly, he was satisfied that the accused understood his right to counsel.

[14] Sgt. Pattison indicated that there was “a lot of talk respecting an Afghan lawyer”, but further indicated that he took no steps to secure counsel for the accused because in his view that was “the investigators’ job”, by which I understood him to mean the Homicide Squad officers. Pattison said that he did not speak to anyone in the CIB in this regard and, thus, had no knowledge of what efforts, if any, were made to contact Duty Counsel on the accused’s behalf. Pattison acknowledged that he heard the accused say the word “Dari” multiple times, but went on to say that he considered that the extent of his responsibility was to ensure that the booking process was properly completed. This included satisfying himself of the accused’s physical well being and making sure that accused understood the reason for his arrest, his rights to counsel, and his right to make a phone call. Pattison said he was satisfied that the accused understood all of those things.

[15] In cross-examination, Pattison acknowledged that the fact that the accused repeatedly said the word “Dari” caused him concern respecting the accused’s ability to comprehend what was taking place. He indicated, however, as noted above, that the exchanges he observed between P.C. Paul and the accused satisfied him that they understood each other. He rejected the proposition put to him by defense counsel, that he based his conclusion on intuition. To the contrary, he said that his opinion was based on watching the interaction of the two men, including their lengthy verbal exchanges punctuated by frequent nods, and on Paul telling him he was able to communicate effectively with the accused. Pattison also said that the responsive nature of the accused’s answers to his questions also led him to conclude that the accused understood what he had said to him through P.C. Paul. In the final analysis, he indicated that he had “a strong belief” that the accused understood the process and the information conveyed to him.

[16] Pattison said that he understood the accused to be asking for a Dari interpreter, but indicated that so far as he was aware there was no Dari speaking police officer then available. Indeed, Pattison indicated that, in all the circumstances, he considered himself fortunate to have a Hindi speaking officer available to him. He acknowledged that there is an interpretation service available to TPS, but said that, to his knowledge, it is usually reserved for interviewing victims and had never been used for a booking procedure. Against that backdrop, he said he was satisfied that the accused understood Hindi sufficiently to be apprised of the things he, Pattison, needed to impart to him.

[17] Mr. Hicks asked Pattison why he did not give P.C. Paul an opportunity to familiarize himself with the accused prior to the booking process in order to ensure that they could communicate effectively before that process began. In response, Pattison indicated that he did not think it was appropriate to have Paul, or for that matter any police officer, speak to the accused when he had not yet been properly booked into the station and afforded, amongst other things, his right to counsel.

[18] P.C. Paul testified that he was born in India and Hindi is his mother tongue. He indicated that he was educated in Hindi from senior kindergarten to the end of Grade 5, at which point his family immigrated to Canada. He said that since coming to Canada he has spoken, and still speaks, predominantly Hindi at home. He acknowledged that he has no training in interpretation as such, but when on to say that, as a police officer, he is called upon on an average of once or twice per month to translate for Hindi speakers.

[19] P.C. Paul indicated that, upon being introduced to the accused, he explained that the booking area was covered by video surveillance. He said he read a notice to that effect (posted on the wall of the booking hall), to the accused in English and again in Hindi. When he asked the accused if he understood what he had just told him, the accused responded in the affirmative.

[20] According to P.C. Paul, the accused said that he wanted to speak to an Afghani police officer. Paul indicated that the accused then just said the word, “Dari”. At a later point, the accused asked, in Hindi, for a Dari interpreter.

[21] Paul said that he explained to the accused, in both English and Hindi, that he was under arrest for murder, which the accused acknowledged, in Hindi.

[22] Paul said that he then read to the accused, in both English and Hindi, the right to counsel from the back of his memo book. When asked if he wanted a lawyer, the accused said, according to Paul, that he wanted “an Afghan lawyer”. Paul said that he, in turn, conveyed that to Sgt. Pattison. According to Paul, Pattison responded that he would try to get a lawyer and Paul translated this for the accused. As earlier noted, however, Pattison indicated that he did not take any steps to put the accused in touch with counsel because he did not consider it part of his duty.

[23] Following that, Pattison asked, through Paul, whether the accused had any injuries. The accused replied, in Hindi, that both his feet were injured, his right foot as a result of a car accident and the left as a result of having bumped it on something. As for the latter, the accused indicated that he was not sure when or where he had bumped it.

[24] Pattison next asked the accused if he was under doctor’s care, to which the accused responded that he had spent one night in hospital following his car accident. Pattison then asked if he had any medical problems other than his feet and the accused said he did not.

[25] Pattison asked the accused if he was taking any medication. The accused responded that he was taking medication for a sleeping problem, a stomach ailment, constipation, and for what he said, initially at least, was his brain, but, moments later, described as “tension at home”.

[26] Paul indicated that he maintained eye contact with the accused throughout the booking procedure and had no problem understanding the accused in the course of their discussions. Further, Paul stated that the accused never made any unresponsive utterance and never asked him to repeat anything he had said. Paul said the accused appeared calm throughout this process and displayed no emotion.

[27] The booking procedure was completed by 3:18 p.m., at which point Paul and Ross took the accused to the CIB and lodged him in Interview Room A. Paul said that he and Ross then stationed themselves outside the room to ensure that no unauthorized person had contact with the accused.

[28] P.C. Paul acknowledged in cross-examination that the accused was not fluent in Hindi and, further, that the accused told him so during the course of the booking procedure. Paul indicated that he informed Pattison of what the accused said in that behalf, but went on to tell the sergeant that he felt he could communicate with the accused. Paul reiterated his evidence-in-chief that the accused appeared to understand him, both during the booking and thereafter. Paul went on to say that, had he thought that the accused did not understand him, he would have stopped interpreting. When asked why he did not call for a Dari interpreter when the accused said he did not speak Hindi, Paul indicated that he wanted to ensure that the accused knew what was happening.

[29] At 4:10 p.m., Detective Mendoza from TPS Forensic Identification Services (“FIS”) arrived at 22 Division and entered Interview Room A to seize certain clothing from the accused, incident to arrest.[^3] In the course of interpreting for Mendoza, Paul said he instructed the accused in Hindi and used no hand signals to convey to the accused what he was to do. Paul said that the accused acknowledged his direction in each case by saying “yes” in Hindi and followed all of his directions without any difficulty. That process was complete by 4:25 p.m., at which time the accused was once again left alone in the room, with Paul and Ross stationed outside. According to Paul, the accused was calm throughout this process and showed no emotion.

[30] At 6:47 p.m., the accused knocked on the door of the room and indicated, in Hindi, that he wanted to use the toilet. He was taken to the washroom and returned to Room A at 6:51 p.m.

[31] At 6:30 p.m., Detectives[^4] Michael Barsky and Peter Code of the Homicide Squad arrived at 22 Division. Barsky indicated that he had been notified shortly after 2:00 p.m. that he and his then partner, Code, had been assigned to investigate this homicide. Understanding that the alleged perpetrator was in custody at 22 Division and the crime scene secure, before attending either location, Barksy and Code conducted a number of preliminary investigative duties at their office at Police Headquarters.

[32] Once at 22 Division, Det. Code indicated that he and Barsky had a discussion with Det. Molyneau, one of several 22 Division detectives who had attended the scene of the incident. According to Code, Molyneau advised that the accused had not yet spoken to a lawyer. Code indicated that that was a concern to him and, as a consequence, he endeavored to find out exactly what the accused had said in response to being advised of his rights to counsel.

[33] At 7:15 p.m., P.C. Paul indicated that he went into Interview Room A to ask the accused if he wanted something to eat. The accused replied that he only wanted Halal meat. Paul told the accused that there was no Halal meat, but that he could have “a vegetarian option”. The accused indicated that he would prefer the vegetarian meal and, at 7:20 p.m., he was provided with a cheese sandwich and a glass of orange juice.

[34] At 7:34 p.m., Ross left Paul outside of Room A and went to speak with Barsky and Code. He returned at 7:35 p.m., at which point Paul went to speak to the homicide officers.

[35] Paul spoke to the homicide investigators for approximately 10 minutes, beginning at 7:37 p.m. or thereabouts. In the course of briefing the officers as to what had transpired since his arrival at 22 Division, Paul indicated, amongst other things, that the accused had not yet spoken to Duty Counsel. After briefing the homicide officers, Paul returned to the CIB and resumed his post outside Room A.

[36] At 7:48 p.m., Barsky made efforts to contact Duty Counsel. Barsky testified that one of the things he did before contacting Duty Counsel was to speak to P.C. Paul, at which time Paul said his conversations in Hindi with the accused had been “free-flowing” and that he and the accused had understood each other. In the message that he left, Barsky indicated that Duty Counsel would require the services of a Hindi interpreter.

[37] Barsky indicated in examination-in-chief, that he asked for the services of a Hindi interpreter because, albeit the accused had mentioned Farsi in the 911 call, the first language mentioned by the accused in the call was Hindi.[^5] In cross-examination, Barsky indicated that he “accepted [the accused’s] word” to the 911 operator that he wanted a Hindi interpreter. In that conversation, as earlier noted, the accused indicated to the 911 operator that he did not speak English and that he wanted either a Hindi or a Farsi interpreter.

[38] At 8:13 p.m., Duty Counsel, Mr. Jim Murphy, returned Barsky’s call. According to Barsky, Murphy indicated that he could arrange for an interpreter through the services of an enterprise known as “Cantalk”. Barsky declined that offer for two reasons. First, he was not familiar with that interpretation service. As such, he said, he did not think it wise to rely on an unknown entity. In contrast, the service he knew to be used by TPS, namely, Multicultural Interpretation Services (“MCIS”) was known to him to be reliable. Second, Barsky indicated that counsel had advised that the service cost $4.15 per minute. Although he indicated clearly, in cross-examination, that price was not the determining factor, he did indicate in examination-in- chief that, as serious as a homicide investigation may be, Homicide Squad officers are, nonetheless, obliged to avoid unnecessary expenditure of police funds where at all possible. Barsky reiterated that the services of MCIS were available at no cost to TPS.

[39] At 8:32 p.m., Barsky called MCIS and left a message that he needed a Hindi interpreter.

[40] At 8:47 p.m., Barsky received a call back from Usha Prashar, of MCIS. After Barsky told to her that she would be required to come to 22 Division, Ms. Prashar said that would not be possible.

[41] At 8:50 p.m., when Det. Schertzer asked him if he needed any assistance, Barsky delegated to her the task of arranging for the accused to speak by telephone with Duty Counsel and securing the assistance of a different Hindi interpreter. Schertzer immediately set about making those arrangements. As a first order of business, Schertzer immediately called MCIS to arrange for another interpreter.

[42] Barsky indicated that he wanted the interpreter to come to the station because, failing personal attendance, he could not know for sure who was on the other end of the telephone. In addition to that concern, Det. Schertzer indicated that, because the accused was in an interview room, she could not work out the logistics of a three-way call if both the Duty Counsel and the interpreter were off-site.

[43] At 9:15 p.m., someone from MCIS called back. The caller indicated that a Hindi interpreter had been arranged and that her expected time of arrival at the police station was 10:15 p.m. Schertzer then arranged by telephone for Mr. Murphy to be available at that time.

[44] At 10:15 p.m., Schertzer was advised that the Hindi interpreter, Ms. Neeta Desai, had arrived at the station. Schertzer attended the front desk, escorted the interpreter to the Detective Sergeant’s office in the CIB and then arranged the three-way call. Schertzer said she took pains to explain to the interpreter that she was not to divulge any part of the communications that were about to take place to any police officer.

[45] At 10:30 p.m., Schertzer made another call to Duty Counsel and left a message that his services were required.

[46] At 10:31 p.m., the accused knocked on the door and, once again, wanted to go to the toilet. He was taken to the washroom and returned to Room A about five minutes later.

[47] At 11:05 p.m., having still not received any response to her 10:30 p.m. call, Schertzer made a second call to Duty Counsel and spoke with a Ms. Johnson, indicating that Duty Counsel’s services were required. Some minutes later, Mr. Murphy called back.

[48] At 11:35 p.m., a phone link was effected between the accused, Duty Counsel, Mr. Murphy, and the interpreter, Ms. Desai. The interpreter was in the Detective Sergeants’ office in the CIB. The accused was in Interview Room A. P.C. Paul participated in the call only to the extent of answering a telephone in the CIB and giving the receiver to the accused in the interview room, at which time he explained to him, in Hindi, that Duty Counsel was on the line.

[49] According to Schertzer, the call lasted approximately five minutes and ended when the Hindi interpreter motioned for Schertzer to come to her. When Schertzer went into the Detective Sergeants’ office, Ms. Desai indicated that the accused was insisting upon a Dari interpreter.

[50] At 11:40 p.m., according to P.C. Paul, the accused knocked on the door and returned the telephone receiver to him. Paul said that the accused stated, in Hindi, that he did not speak Hindi and wanted a Dari interpreter. Paul went on to say that the accused told him that he only wanted a Dari interpreter and an Afghan police officer. Paul promptly informed the homicide officers.

[51] Det. Schertzer said that she spoke to Mr. Murphy, who told her that he would soon be going off shift, but that he would arrange for another Duty Counsel to speak to the accused once another interpreter had been arranged. Schertzer said that, as soon as she ended the call with Murphy, she contacted the police dispatcher and asked that a request be put out over the police radio for any officer who spoke Dari. At the same time, she called MCIS and left a message indicating that she required a Dari interpreter.

[52] At approximately midnight, Schertzer got a return call from MCIS and was advised that a Dari interpreter was on his way to the station and was expected to arrive approximately one hour later.

[53] At 12:01 a.m., on March 19, 2008, Schertzer advised Barsky that a Dari interpreter was en route to replace the Hindi interpreter.

[54] At 12:13 a.m., P.C. Paul spoke again to the homicide officers and indicated that he did not speak Dari. He said he repeated the accused’s claim that he did not speak Hindi and his demand to speak to a Dari interpreter.

[55] At 12:50 a.m., the Dari interpreter, Mr. Najibuddin Shams, arrived at 22 Division. Schertzer briefed Mr. Shams, giving him the same instructions she had earlier given the Hindi interpreter.

[56] At 1:00 a.m., Schertzer took Mr. Shams into Interview Room A to meet the accused, so that they would have an opportunity to speak. She did this, she said, to ensure that they were able to understand one another when the accused spoke to Duty Counsel.

[57] At 1:01 a.m., at the request of Det. Barsky, P.C. Paul entered Interview Room A to advise the accused that he was leaving and, at the same time, to introduce the Dari interpreter to the accused. Paul said that the accused thanked him in Hindi for his assistance. From that point forward, Paul had no further contact with the accused.

[58] At 1:19 a.m., Schertzer received a call from a new Duty Counsel, Mr. Damien Paul, who had apparently been briefed by Mr. Murphy.

[59] At 1:36 a.m., Duty Counsel, Mr. Paul, the interpreter, Mr. Shams, and the accused were all connected by telephone. That conversation lasted until 2:10 a.m. Barsky was advised by another officer at that time that Mr. Paul had indicated that the accused needed to use the toilet and needed his medication.

[60] At 2:19 a.m., Det. Peter Code entered Room A and spoke to the accused for the first time, through the medium of Mr. Shams, in order to deal with the accused’s need to use the washroom and his request for medication.

[61] At 2:50 a.m., Barsky and Code commenced an interview with the accused in an interview suite specially designed for recording statements on video. That interview lasted until 6:10 a.m., at which time the accused was returned to Interview Room A.

[62] Barsky said he set up the video recording equipment. Unfortunately, for some unknown reason, and unbeknownst to the officers until after the interview was concluded, the video recorder ceased to function one hour and 17 minutes into the interview.

[63] As a backup to the video recording, to ensure that the entirety of the interview was recorded, at the outset of the interview Barsky also endeavoured to activate a handheld audio recording device. To get a better quality recording, Barsky hooked up an external microphone. Unfortunately, this was the first time that he had used the microphone and he failed to realize that it had its own on/off switch, which was in the “off” position. As a result, the audio device failed to record any of the interview.

[64] Shortly after the interview ended, Barsky came to realize the aforementioned failures. In an effort to remedy the situation as best he could, Barsky decided to conduct a second, abbreviated interview in which they would discuss with the accused what he referred to as “the highlights” of the first interview. Mr. Shams was asked by the officers to remain in order to further interpret. Having used the audio device before without any problem, Barsky decided that he would record this second interview using that device, but would not use the external microphone.

[65] At 6:25 a.m., Barsky and Code entered Interview Room A. The accused rose when they entered and remained standing throughout the interview that followed. Code indicated that there was only one chair in the room and, although the officers invited the accused to be seated, he chose to remain standing. Code interpreted the accused’s refusal to be seated as a sign of respect for them.

[66] In the course of that interview, the officers endeavored to have the accused confirm that, in the first interview, they had discussed with him the following topics: his rights to counsel, the reason he had been arrested, the 911 call, whether his wife was alive at the time he made the 911 call, how he had come to surrender, his life and the various stresses in it, what the accused said regarding having used two knives to kill his wife, and who else, if anyone, had been present at the time of the killing. That second interview lasted until 6:48 a.m.

[67] Once the second interview was complete, Barsky detailed Code to make notes to the best of his ability of everything that had been said during the first interview.

[68] Barsky also endeavored to have Mr. Shams write a will-say statement in order to have what he described as “an independent, arms length rendition” of what had been said during the course of the first interview. For his part, Mr. Shams was uncomfortable with the idea of giving a statement to the police because he felt that it might compromise what he considered to be the neutrality of his role as interpreter. However, having consulted with his superiors at MCIS, and having been reassured that it was not inappropriate for him to comply with the police request, Mr. Shams agreed, several days later, to compose such a statement.

[69] The defence called one witness on the voir dire, Prema Aiyar, a Hindi interpreter accredited by the Ontario Ministry of the Attorney General (“MAG”). Ms. Aiyar was born and raised in India and, although Hindi is not her mother tongue, she indicated that throughout her life she has spoken Hindi more than her native Tamil and is completely fluent in Hindi. She was qualified, on consent, to opine on the apparent degree of fluency of the accused in Hindi.

[70] Ms. Aiyar testified that she had heard the audio recording of the 911 call and seen the DVD of the booking procedure and formed opinions on the fluency in Hindi of both the accused and P.C. Paul.

[71] Beginning with the accused, Ms. Aiyar indicated that he is clearly neither a native speaker of Hindi nor fluent in it. She indicated that he has what she described as “a basic understanding” and that he is less skilled at speaking than he is at understanding. She agreed that the latter observation is true of most non-native speakers of any language.

[72] In terms of the recording of the 911 call, Ms. Aiyar indicated that, in her opinion, the accused spoke with a greater fluency in that recording than he did in the booking procedure.

[73] Turning to P.C. Paul, Ms. Aiyar said that Paul’s Hindi was not such that, in her opinion, he could qualify as an “official” interpreter. She indicated, with respect to the information Paul imparted to the accused in Hindi, that Paul used “lots of English words”. For example, at one point, while speaking in Hindi, Paul used the English word “arrest”, but Ms. Aiyar acknowledged that Paul later said the equivalent word in Hindi. Concerning Paul’s translation of the discussion surrounding the accused’s medications, she said that Paul missed some “key words”, but went on to say that she did not think that what he translated was either inaccurate or incomplete. In summary, she said that she was of the opinion that “he got his message across.” In cross-examination, she said that, despite his having omitted words at various points and having used some English words, she considered that, on balance, P.C. Paul’s interpretation had been “fair and complete”.

[74] Ms. Aiyar indicated that she thought that, as between the accused and P.C. Paul, the officer was more fluent in Hindi than the accused.

VOLUNTARINESS

Position of the Parties

[75] Counsel for the Crown asserts, and the accused concedes, that the statements in question were not the result of oppression, threat, inducement, or lack of an operating mind.

[76] The sole issue, then, concerning the voluntariness of the statements, is whether there is before this court an adequate record for the court to be able to decide the question of voluntariness.

[77] Counsel for the accused argues that the absence of a complete record of the interaction between the officers and the accused deprives this court of a sufficient evidentiary foundation upon which to reasonably conclude that the statements in question were made voluntarily.

[78] Counsel for the Crown asserts that notwithstanding the failure to record more than half of the three hour interview, there is a sufficient record, consisting of Det. Code’s notes, and the interpreter’s statement.

Discussion

(i) General Principles

[79] In R. v. Park, 1981 56 (SCC), [1981] 2 S.C.R. 64; 59 C.C.C. (2d) 385, at 394 C.C.C., speaking on behalf of the court, Dickson J., as he then was, stated:

In every case in which the Crown seeks to adduce evidence of a statement made by an accused, there must, by definition, be "some evidence" that the statement was made. This evidence exists by virtue of the fact that a police officer (or other "person in authority") is seeking to tender direct evidence of the making of the statement. Whether or not the officer is to be believed, and the weight to be given to the statement, is a matter for the trier of fact. The special rules of evidence relating to statements made to persons in authority flow from the concern of the Courts to ensure that such statements are made voluntarily. Once the issue of voluntariness is resolved, normal principles of evidence apply. The fact that the testimony of the police officer is contradicted by the accused cannot affect the admissibility of the officer's evidence. Where there are conflicting versions of what was said by the accused, the jury will decide which is to be believed. There is no necessity for a voir dire on this issue.

[80] I recognize, of course, that the “existence of gaps in material evidence can raise a reasonable doubt in a voir dire in the same way they can do so in the case as a whole...”: R. v. Millar, 2003 ABQB 146, [2003] A.J. No. 635, at para. 28. See also R. v. Belle, 2010 ONSC 1618, [2010] O.J. No. 1084, where, at paragraph 42, Trotter J. held:

In determining whether statements that are imputed to an accused person are free and voluntary, it is necessary to assess the interaction of the accused person and the persons in authority. Without an accurate or reliable record of what transpired, it is not possible for the Crown to satisfy its burden beyond a reasonable doubt. As Professors Paciocco and Stuesser point out in The Law of Evidence, supra, at p. 325:

The combination of the heavy burden that is placed on the Crown and the need for the judge to evaluate all of the circumstances means that the Crown will not succeed if there are material gaps in the voir dire evidence relating to what was said or what happened during the interrogation.

[81] The same point was made by Campbell J., in R. v. Laidley, 2001 28421 (ON SC), [2001] O.J. No. 6281, at paragraph 42:

The adequacy of the interview record is generally a question of weight, not of admissibility. R. v. Lapointe (1983), 1983 3558 (ON CA), 9 C.C.C. (3d) 366 (Ont. C.A.) per Lacourciere, J. at p. 380 ff. However, the inadequacy of the record may go to admissibility if it results in the inability of the trial judge to determine whether the words of the accused are voluntary. See R. v. Hodgson [1998] A.J. No. 175 (Alta. Q.B.) at p. 10.

[82] There is no legal requirement that a police interview be videotaped: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. See also: R. v. Richards (1997), 1997 12470 (BC CA), 87 B.C.A.C. 21; leave refused, [2003] S.C.C.A. No. 100; R. v. Quinn, 2009 BCCA 267, [2009] B.C.J. No. 1168; R. v. Tran, [1998] B.C.J. No. 2874 (S.C.); R. v. Narwal, 2009 BCCA 410, [2009] B.C.J. No. 1941; R. v. Ducharme, 2004 MBCA 29, 182 C.C.C. (3d) 243, leave refused, [2004] S.C.C.A. No. 124, [2004] 1 S.C.R. viii; R. v. Swanek (2005), 2005 3326 (ON CA), 28 C.R. (6th) 93 (Ont. C.A.); R. v. Menezes, 2001 28426 (ON SC), [2001] O.J. No. 3758 (S.C.J.).

[83] Assuming the Crown can put before the court a record sufficient to establish voluntariness, the question of the accuracy of what the police officers recorded is a matter of weight and not admissibility: R. v. Maragh, [2003] O.J. No. 2386 (S.C.J.); R. v. Connor, [2009] O.J. No. 3827 (S.C.J.). Moreover, the fact that the entire statement of an accused was only partially recorded or, for that matter, not recorded at all goes to the weight to be attached to the statement and not its admissibility: R. v. Sagliocco (1978), 1978 2302 (BC CA), 39 C.C.C. (2d) 514 (B.C.C.A.); R. v. Gauthier, 1975 193 (SCC), [1977] 1 S.C.R. 441, 27 C.C.C. (2d) 14; R. v. Erven, 1978 19 (SCC), [1979] 1 S.C.R. 926, 44 C.C.C. (2d) 76; R. v. Sahota, [2009] O.J. No. 3519 (S.C.J.); R. v. Legere (1988), 1988 129 (NB CA), 89 N.B.R. (2d) 361 (N.B.C.A.).

[84] At paragraph 27 ff. of Menezes, Hill J. provides a helpful overview of the law on this issue:

27 Ordinary witnesses, not police witnesses, frequently testify without the benefit of notes as to out-of-court statement made by the accused. On occasion, when a person in authority recounts such a statement not reduced to writing, where there is otherwise no doubt as to the voluntariness of the accused's statement, the accuracy and completeness of the words attributed to the accused are a matter of weight for the jury: Regina v. Mulligan (1955), 1955 124 (ON CA), 111 C.C.C. 173 (Ont. C.A.) at 175, 179, 181 per MacKay J.A. (approved in The Queen v. Gauthier (1975), 1975 193 (SCC), 27 C.C.C. (2d) 14 (S.C.C.) at 20 per Pigeon J.); Regina v. Halliday (1975), 1975 1427 (NS CA), 25 C.C.C. (2d) 131 (N.S.S.C.-A.D.) at 135 per Cooper J.A. Whether the statement is reported accurately is a matter for the jury: Park v. The Queen (1981), 1981 56 (SCC), 59 C.C.C. (2d) 385 (S.C.C.) at 394-5 per Dickson J. (as he then was); MacKenzie v. The Queen (1993), 1993 149 (SCC), 78 C.C.C. (3d) 193 (S.C.C.) at 216-7 per La Forest J. As noted by Angers J.A. in Regina v. Legere (1988), 1988 129 (NB CA), 43 C.C.C. (3d) 502 (N.B.C.A.) at 510 (leave to appeal refused 96 N.B.R. (2d) 180 n):

It is true that the evidence of Sergeant Johnston provided an incomplete statement because of the manner in which it was taken but completeness or exactness does not render a statement inadmissible. Necessarily, it is a question of weight.

28 Deliberate or unconscious inaccuracy or fabrication respecting an accused's statement is a matter for the trier of fact: Lapointe and Sicotte v. The Queen (1984), 1983 3558 (ON CA), 9 C.C.C. (3d) 366 (Ont. C.A.) at 380-2 per Lacourcière J.A. (affirmed (1987), 1987 69 (SCC), 35 C.C.C. (3d) 287 (S.C.C.) at 288 per curiam.). Use of a summary does not affect the validity of a statement to a person in authority: Regina v. Plata (1999), 1999 13689 (QC CA), 136 C.C.C. (3d) 436 (Que. C.A.) at 441 per LeBel J.A. (as he then was). Nor does the lack of a verbatim report of what was said: Regina v. M. (S.) and B. (A.), 1996 10248 (ON CA), [1996] O.J. No. 1577 (C.A.) at pages 5-6 per Brooke J.A.

(i) The Case at Bar

[85] To begin, in R. v. Louison, [1992] S.J. No. 354 (Q.B.), Maurice J. held that statements recorded after the fact by the police were admissible. In this case, Det. Code’s notes were made very shortly after the time the accused actually made the statement and without any input or influence from any other person. I was particularly impressed by Det. Code. He struck me as an intelligent and observant witness. His recollections were very detailed and precise. As well as recounting what the accused said, Code also described the accused’s posture, body language and apparent emotion as he spoke. The relative contemporaneity of Code’s notes and his attention to detail, the consistency of his account with Barksy’s and Shams’ respective renditions, and the absence of any challenge by the accused to their respective accounts, gives me a high degree of confidence in the accuracy of Code’s account.

[86] Counsel for the accused relies heavily on R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493 (C.A.) in support of his argument that the court should decline to admit the statement because the police failed to record the interview although they had the technical wherewithal to do so. With respect, Mr. Labar’s reliance is misplaced. In Moore-McFarlane, the Court of Appeal was considering the admissibility of a confession of an accused person that was neither video nor audio recorded. In that case, however, there was reason for circumspection was based on competing versions of what was said and done to the accused while in police custody. In finding that the trial judge had erred in admitting the statements of both accused, Charron J.A. (as she then was) said, at paragraph 65, “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.” [Emphasis added.] Whether suspicion is warranted will depend, of course, on the facts of the case: Ducharme, supra; R. v. Groat, 2006 BCCA 27, 205 C.C.C. (3d) 542. In this case, I find that the there is no reason to be suspicious in this case for two reasons.

[87] First, unlike Moore-McFarlane, the police did not deliberately set out to interrogate the accused without recording the session. On the contrary, although they failed to do so for the reasons set out above, I find as a fact that the officers intended to record everything that transpired between them and the accused. Furthermore, when the officers realized the problem, they immediately endeavoured to recapture what had earlier been said by conducting a second interview using an audio device and sought to have Mr. Shams commit to writing his independent recollection of what had transpired in the interview.

[88] Second, as noted above, there is no suggestion of threat, inducement, oppression, or lack of an operating mind. Further, it was conceded in oral argument that the defence takes no issue with the credibility of the officers concerning their dealings with the accused. Rather, the only issue raised is as to the reliability of the officers’ memory of what was said in the first interview. While those concessions do not relieve the Crown of its burden, they do, it seems to me, make that burden easier to meet.

[89] In Menezes, at paragraph 25, Hill J. stated:

The court must of course be concerned, in pursuit of adjudicative fairness and the assertion of an arrestee's constitutional rights, that the police do not deliberately orchestrate a selective recording of the accused's statements in an effort to set up a credibility contest between police officer witness and accused: Regina v. Davis, 1999 3683 (ON CA), [1999] O.J. No. 141 (C.A.) at para. 7, per Doherty J.A.

[90] In this case, Barsky said he only sought to recapture in the second interview what he referred to as “the highlights” of the first. While, on its face, that might suggest a certain selectivity, I took Barsky to mean that he was endeavouring to record only that which was relevant to the investigation. I say that bearing in mind that the first interview covered a wide range of subjects, including, to mention just one topic, a car accident in which the accused had been involved some time before the homicide which had nothing whatsoever to do with the investigation at hand. I did not understand him to mean that he was being in any way selective within the scope of subject matters relevant to the homicide. There is no suggestion of any selectivity on the part of the officers in recording their interactions with the accused or his responses to their inquiries. On the contrary, as I have said, I am fully satisfied that Det. Barsky made an effort to ensure that a complete record was created initially and, when he later realized that he had failed to do so, he then made his best effort to re-create what had earlier transpired.

[91] The accuracy of the account given by the officers, most particularly Code, in terms of what was not recorded is buttressed in the following ways:

(i) the video recording of the first half of the interview tracks very closely with Det. Code’s notes concerning that portion of the interview;

(ii) what is attributed to the accused dovetails in many respects with what he said in the course of the 911 call and, in a more limited way, with things he said in the course of the booking procedure;

(iii) the officers confirm each other’s evidence in terms of what they recollect being said in the latter portion of the first interview; and

(iv) Mr. Sham’s written statement confirms the officers’ memory of what was said.

[92] On that last point, in R. v. U.(F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, the statement of the complainant to the police concerning sexual abuse by her father was admitted for its truth notwithstanding the fact that the complainant recanted the statement at trial. Like this case, the investigator who took the statement attempted to tape the interview, but the tape recorder malfunctioned. As a result, the officer prepared a summary of the statement based partly on his memory and partly on his notes. The court held that the striking similarities between the complainant's prior statement and the statement to police given by the accused were such that the officer’s rendition of the complainant’s statement met the test for threshold reliability and admitted the statement as substantive evidence. In this case, Det. Code made careful notes, albeit after the fact, of what was said in the first interview. I am of the opinion that the similarities between what Det. Code and what Mr. Shams recorded, each independently of the other, are sufficiently striking to allay any concern about the accuracy of what Code recorded.

[93] In this case, inasmuch as the accused chose not to testify on the voir dire there is only the Crown’s version of events before me. Moreover, given the concessions by the defence, I have no reason to doubt the evidence of any of the officers who testified on the voir dire and, accordingly, I accept their respective accounts without reservation.

[94] In R. v. Tan, 2011 BCSC 334; 267 C.C.C. (3d) 431, the Crown sought to introduce into evidence a statement taken from the accused. In that case, the audio device the transporting officers used to record their interactions with Tan when they returned him from Belgium to Vancouver malfunctioned. The accused’s statement was admitted notwithstanding the earlier “gap” in the record.

[95] In R. v. Connor, [2009] O.J. No. 3827 (S.C.J.), like this case, it was the accused’s statement that had only been partially recorded that the Crown sought to adduce. Notwithstanding it was incomplete, Molloy J. admitted the accused’s statement, having concluded, at paragraph 6, that it was a question of the weight to be given the police officers' account of what had been said in the unrecorded portion of the interview, rather than an issue of admissibility. At paragraph 120, she went on to say,

In this case, the police officers obviously intended to record the entire interview. It was solely due to a mechanical malfunction that a complete record is not available. That removes any inference that the failure to record was in some way a reflection that the police were being less than fully honest about the matter.

[96] At paragraph 125, respecting the portion of the interview that was not recorded, Molloy J. noted that “[t]he notes are not so lacking in specificity that they are completely unreliable. The issue will be the weight to be given to the statements for which there is no recording and which are disputed by Mr. Connor.” I agree with Molloy J.’s approach. Moreover, unlike Connor, where the only account of what was said in the unrecorded portion of the interview was that of the police officer, in this case, as noted above, the fact that the interpreter confirms the officers’ rendition of what was said makes the case for voluntariness stronger.

Result

[97] In the result, I am satisfied beyond any reasonable doubt that the statements of the accused in both interviews were in all senses voluntary. Accordingly, I find that the Crown has met its burden and the statements are admissible.

[98] Whether the jury will find the evidence sufficiently cogent to rely upon it to decide the case is a different matter and, of course, is a question for them to determine. Having said that, I am prepared to hear submissions as to what, if any, special instruction I should give the jury in relation to the fact that only a portion of the first statement was recorded.

SECTIONS 10(a) AND (b) OF THE CHARTER

Position of the Accused

[99] The accused contends that, by virtue of the failure of the police to secure the assistance of a Dari interpreter for the booking procedure, he was not adequately informed of either the reason for his arrest or his right to retain and instruct counsel without delay, thereby breaching his rights as provided by s. 10(a) and (b) of the Charter, respectively.

[100] The accused argues that his right to counsel was further infringed when the officers failed to provide him with an opportunity to consult counsel until many hours after his arrest.

Position of the Crown

[101] The Crown argues that the police did everything reasonable in the circumstances to advise the accused of the reason for his arrest and his right to retain and instruct counsel without delay. Crown counsel asserts that the accused was advised of both the reason for his arrest and his right to counsel in a timely way, and that he understood.

[102] As for being afforded the opportunity to consult with counsel, Crown counsel asserts that, although the delay was significant, it is adequately explained by the inability of the accused to speak or understand English, and the efforts the officers were obliged to undertake to overcome that language barrier.

[103] For those reasons, the Crown asserts there was no breach of the accused’s s. 10 rights.

[104] In the alternative, the Crown argues that, even if there was a breach, in light of the fact that the police held off questioning until the accused had had an opportunity to consult with counsel, exclusion of the statements is not required.

Discussion

1. Alleged Breach of Section 10(a) of the Charter

[105] In his written application, the accused argues that his right pursuant to s. 10(a) of the Charter was breached because he was not adequately informed of the reason for his arrest. In oral argument, however, counsel made only passing reference to s. 10(a).

[106] While the police are obliged to advise an arrested person of the reason for his arrest, “it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern”: R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, at para. 35.

[107] The accused’s argument must be considered against the backdrop of the 911 call. The accused was the one to initiate contact with the police and insisted that they attend his residence. The reason their attendance was required, according to what he told the 911 operator, was that he had murdered his wife. In that context, I find it hard to imagine that, even before he was actually advised, the accused would have been in any doubt about why he had been arrested. Thus, while the police are nonetheless obliged to advise the accused of the reason for his arrest, in all the circumstances it would have required the police to say very little to adequately perform this aspect of their s. 10 duties. P.C. Paul indicated, and the transcript of the booking procedure reveals, that he advised the accused that he was under arrest for murder. I accept Paul’s evidence and I find what he said was more than sufficient to comply with the dictates of s. 10(a).

[108] The accused was, of course, advised once again, in Dari, at the outset of the interview with the Homicide Squad officers.

[109] Accordingly, the accused has failed to satisfy me that his s. 10(a) right was infringed.

2. Alleged Breach of Section 10(b) of the Charter

(i) Informational Component

[110] Section 10(b) of the Charter requires that, upon arrest, the police inform the arrested person that he has the right to retain and instruct counsel without delay.

[111] An accused's facility with English is relevant to a determination of whether he or she has been informed of the right to counsel in a meaningful way. Where special circumstances exist, that is to say circumstances which establish that, or at least cast doubt on whether, the accused has understood his right to counsel, then the police must take steps to “reasonably ascertain” that the respondent understood: R. v. Vanstaceghem, 1987 6795 (ON CA), [1987] O.J. No. 509 (C.A.), at p. 148.

[112] In R. v. Michaud, [1986] O.J. No. 1631 (Dist. Ct.), a decision referred to with approval in Vanstaceghem, Stortini J. held, at p. 6, that if the accused's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" that alert the officer and oblige him “to act reasonably in the circumstances”. The Crown does not dispute that special circumstances existed in this case; the question on this application is whether the actions of the police were reasonable in the context of those circumstances.

[113] To begin, the accused complains that he was not adequately advised of his rights when he was booked into the station because he was not offered the services of a Dari interpreter but, rather, only afforded a Hindi interpreter. He contends that, because he is not a native speaker of that language, being advised in Hindi did not suffice to adequately convey to him the information to which he was constitutionally entitled.

[114] The accused was in some sense, however, the author of that situation. Albeit he mentioned the word “Farsi” in his early dealings with the police, he indicated in the 911 call that he wanted a Hindi interpreter and he was provided with one. That set the scene for the developments over the next period of time.

The following portion of transcript of the 911 call is revealing in this context:

Operator: Ok, do you need an ambulance, is somebody sick?

Khairi: Please Hindi, Hindi, no speak English, Hindi, Farsi

Operator: Ok what language Hindi or Farsi?

Khairi: Yes

Operator: Which one, there is two. Hindi or Farsi?

Khairi: Yes

Operator: No, not yet, which language?

Khairi: English, no English...

Operator: What language do you speak?

Khairi: Yes

Operator: Hindi or Farsi?

Khairi: Hindi, or Farsi.

Operator: Which one?

Khairi: Irani, ya Hindi, Irani or Hindi

[115] From the foregoing exchange it is clear that the accused was asking for someone to interpret in either Hindi or Farsi. Even reading the foregoing passage in the light most favourable to the accused, it would appear to have been a matter of indifference to him which language he spoke. However, bearing in mind that in all of the foregoing utterances, save the last, he mentioned Hindi before Farsi, to my mind that would suggest to someone who did not know the accused that he preferred to speak Hindi as opposed to Farsi. In the last utterance, on the other hand, the accused further clouded the issue by mentioning, not Farsi, but, rather, “Irani”. In summary, then, in terms of the 911 call, in my opinion the average person listening to what the accused said would conclude, as did the 911 operator, that the accused wanted a Hindi interpreter and, only as a second option, a Farsi interpreter.

[116] It is also apparent from the 911 call that the accused both speaks and understands Hindi. He states explicitly in Hindi, “I know Hindi and I know Farsi.” When the interpreter translates that remark into English, as “I know Hindi and Farsi”, the accused demonstrates clearly that he also understands at least some measure of English because he modifies the interpreter’s English translation by saying, “No, no I know Farsi, ... Hindi, Farsi, Dari, that’s all.” However, as distinct from merely mentioning he knows Dari, at no point in the 911 call did the accused ever ask for a Dari interpreter.

[117] At one point in the 911 call, the accused states that he is not fully fluent in Hindi, but he is obviously sufficiently fluent that he was able to tell the interpreter in Hindi, correctly according to the other evidence, the following: his address and apartment number, what floor the apartment is on, how to get to the apartment, the fact that he has grown children, the fact that he is alone in the apartment, and the fact that he had killed his wife. He also indicated in Hindi that he was prepared to surrender himself to the police if they were to arrive right away, but otherwise he was intending to “run away.” Those remarks, taken together with his comments about being unarmed, such that the police had no reason to fear him and should therefore come right away, convince me that, while the accused may not be a native speaker of Hindi, he has a working knowledge of Hindi sufficient to express himself adequately and understand what is being said to him in that language.

[118] I note, as well, that Ms. Aiyar indicated that the accused appeared to her to speak Hindi more fluently in the 911 call than he did at the police station.

[119] Turning to the booking procedures, when it became apparent to Sgt. Pattison that the accused did not comprehend the booking procedure, including his right to counsel, he forthwith ordered that the booking cease and that the accused be placed in a room. Immediately thereafter, he set about securing an interpreter. As noted above, he consulted the list of TPS officers who speak other languages and quickly discovered that there was no Dari speaking officer available at any time. There was, however, a Hindi speaking officer then on duty. Quite properly, in my view, Pattison, knowing of the obligation to inform the accused of his right to counsel without delay, took steps to secure the attendance of the Hindi-speaking officer.

[120] In terms of the accused’s comprehension of what he was told, defence counsel made much of the fact that P.C. Paul had no time ahead of embarking on the booking procedure to familiarize himself with the accused to ensure that they were capable of effectively communicating in Hindi. I accept Pattison’s rationale for not allowing P.C. Paul an opportunity to familiarize himself with the accused ahead of the booking procedure, namely, that he did not consider it appropriate for any police officer to be speaking to the accused before he had been properly booked into the station and advised of his right to counsel.

[121] Defence counsel also takes issue with Pattison’s failure to arrange for a Dari interpreter from outside the TPS to attend the booking. Relying on R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233 , Mr. Labar argues that, when it became apparent during the second booking that the accused wished to speak to a Dari interpreter, the officers should have immediately stopped the procedure and taken steps to secure a Dari interpreter. I disagree. Given that Pattison was satisfied that the accused both spoke and understood Hindi, an opinion that I find was both objectively reasonable and in fact correct, and given the nature of the booking procedure and the need to accomplish it forthwith, in my opinion there was no need for Pattison to seek out a Dari interpreter.

[122] In Manninen, despite the appellant having clearly stated that he wished to speak to a lawyer, police proceeded, nonetheless, to extract a statement from him. On the facts of this case, however, the police avoided having any contact with the accused, other than that which was strictly necessary, and did nothing of an investigatory nature. They asked the accused only such questions as were required to determine that he was in a fit condition to be held in custody and to ensure that he was afforded modest creature comforts. Accordingly, Manninen is of no application.

[123] A case more on point is R. v. Dupe, 2010 ONSC 6594, [2010] O.J. No. 5757, where, addressing the issue of whether booking the accused into the police station before affording him an opportunity to consult counsel was a breach of s. 10(b), at paragraph 24, Dambrot J. stated:

But it seems clear that Lamer J. did not intend, in Manninen, to oblige the authorities to stop all questioning of the accused while he or she is given the opportunity to consult counsel. The use of the words "cease questioning or otherwise attempting to elicit evidence" to describe the requirement to hold off sheds light on the sort of questioning that is prohibited - questioning intended to elicit evidence, sometimes referred to as investigative questioning. Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited by the language in Manninen. Nor should they be. Prohibiting such questions would not enhance the purpose of s. 10(b). An accused does not require the advice of counsel to assist him or her in determining how to answer such questions, while the best interests of not only the accused but those around him demand that they be asked. An accused only requires the advice of counsel to assist him or her in determining how to answer questions designed to elicit incriminatory evidence, or at least to elicit evidence relating to the offence under investigation.

I adopt those remarks.

[124] P.C. Paul indicated that he had no difficulty communicating with the accused. To the limited extent that he was able to discern it, Pattison confirmed that. In that regard, it is trite to observe that, by observation of their interaction, one can discern, to some degree at least, whether two people are able to communicate in another language that the observer does not speak. Moreover, the recording of the booking procedure reveals information consistent with that which the accused imparted to the 911 operator. If P.C. Paul had been unable to communicate effectively with the accused, it would not have been possible for him to extract the information he did.

[125] Despite his repeated claims during the booking procedure that he did not understand Hindi and his insistence on being provided with a Dari speaking interpreter, it is plain to me that the accused understood what Paul was saying to him. I say that for the following reasons:

(i) in response to Paul’s advice that the area was under video surveillance and his inquiry of the accused whether he understood that, the accused indicated that he understood;

(ii) when Paul asked if the accused understood why he was in the station, the accused nodded in a fashion that conveyed to Paul that he understood;

(iii) although he did not answer all of Paul’s questions directly, his answers were, nonetheless, responsive (for example, when asked if he understood that he was in custody for the murder of his wife, the accused indicated that if the police were to summon an Afghani, he would tell him everything, but would not tell an “improper Afghani”);

(iv) when, during his recitation of the accused’s right to counsel, Paul begins to tell him that if he does not have a lawyer one will be provided for him, the accused responds by saying, “I do not have any lawyer”;

(v) when told that he has the right to make a phone call, the accused responds,“...I cannot make a phone call...”;

(vi) when Paul recites the Duty Counsel telephone number, the accused states, “You can tell everything to that lawyer”;

(vii) when Paul asks the accused whether he wishes to call a lawyer at that point, the accused states that he would like to call a lawyer, but reiterates that it must be an Afghani lawyer;

(viii) when Paul tells him that they will provide him with “only an Afghani lawyer”, the accused states, “that is fine”;

(ix) when, without any mention of the word “lawyer”, Paul asks him if he understands what he has just told him, the accused responds, “I only want an Afghani lawyer. I will tell him everything”;

(x) on several occasions during the booking procedure, when Paul asks again whether the accused understands he has a right to a lawyer and whether he understands what he has been told, the accused makes a point of indicating that he wants an Afghani lawyer;

(xi) when asked whether he had any injuries, the accused states that he has injuries to his feet and goes on to articulate that the injury to one foot is old whereas the injury to the other is the result of a recent car accident; (a bandage was evident on his otherwise bare feet); and

(xii) when asked about whether he was taking medication, the accused described the various maladies for which he was taking different medications and later asked whether the medications could be brought to him from his home.

[126] In the final analysis, I simply do not believe the accused’s statements to the effect that he did not understand what was being said to him. The evidence I accept all points to the opposite conclusion. I am, indeed, convinced that the accused fully understood that he had the right to retain and instruct counsel without delay. It being his onus of persuasion, I am not satisfied that there was a breach of the informational component of his right to counsel.

(ii) Implementational Component

[127] Turning to the implementational requirement, as an arrested person, the accused had the right to consult with counsel without delay. In a perfect world, the accused would have been put in touch with a lawyer, and been able to speak to him with the assistance of an interpreter of his choice, immediately after he indicated in the booking hall that he wished to consult counsel. As it turned out, he did not finally consult counsel until roughly ten hours later. In short, there was unquestionably delay. The question I must decide is whether, in all the circumstances, the delay amounted to a breach of the accused’s s. 10(b) right.

[128] Quite apart from police actions, much time was lost waiting for Duty Counsel to respond to messages left by the various police officers. Similarly, time was consumed by the need to secure the services of an interpreter. In saying this, I imply no criticism of either Duty Counsel or MCIS. In either case, it would be prohibitively expensive and impractical, particularly in the evening hours, for either organization to have personnel on constant stand by, so as to be instantly available. That said, obviously, this delay must be subtracted from the overall time period between advising the accused of his right to counsel and affording him the opportunity to exercise it.

[129] In the case of Duty Counsel, the system is set up so that police officers leave a message that the services of counsel are required and the lawyer on duty replies as soon as practicable.

[130] With MCIS, I gather, there is a live person on the line, who, upon being notified that an interpreter is required, immediately sets about finding one and then phones back to advise the police. Without repeating in detail my earlier recitation of the times of calls to Duty Counsel and MCIS, by my calculus, from the time Barsky first called Duty Counsel, at 7:48 p.m., until the Dari interpreter had arrived at 22 Division and was ready to translate, at 1:35 a.m. the following morning, something on the order of five and a half hours was lost awaiting call backs from both agencies and, in the case of MCIS, the actual arrival of the interpreters at the police station.

[131] Turning to the actions of the police, in retrospect it is clear that there was no reason not to have afforded the accused an opportunity to consult counsel immediately after he indicated that he wished do so during the booking process. In fairness to the officers involved, however, that was not known at the time. It must also be borne in mind that, even had that been done, it would still have taken some period of time to contact Duty Counsel and arrange for an interpreter. Judging by the times it later took to do so, I suspect that, even during the afternoon, it would have taken at least an hour and probably more like two hours to accomplish these tasks.

[132] As important as it is to ensure that the accused is afforded an opportunity to consult counsel, it is only one of a great many important duties that must be seen to promptly in the early stages of a homicide investigation. Thus, it is well settled that, in some cases, circumstances may dictate that implementation of the right to counsel be delayed in order not to compromise one or more aspects of the investigation: R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980.

[133] As for the booking procedure, it was complete at 3:18 p.m. Once the informational component was complete, normally that would mean that the implementational obligation was then engaged. I am satisfied, however, that Sgt. Pattison’s decision not to take steps to put the accused in touch with a lawyer immediately after the booking was complete was reasonable in the circumstances. He had no in-depth knowledge of the investigation and, given the seriousness of the matter, it was sensible for him to conclude that arranging for the accused to speak to counsel was a matter for the investigators, who would have the more complete picture that he lacked.

[134] As for the actions of the Homicide Squad investigators, in Strachan, at paragraph 34, Dickson C.J., speaking for the majority held that some delay of s. 10(b) rights can be justified in circumstances of uncertainty:

The combination of an arrest in the accused's home, the presence of two unknown people, and the knowledge that two restricted weapons were in the apartment, was a potentially volatile situation. It is true the accused had the proper registration permits for the weapons, but, notwithstanding, the possibility of their use was a serious matter for a police officer to consider while taking a person into custody. In my opinion, Constable Bisceglia was justified in preventing any new factors from entering the situation until some of the unknowns had been clarified. Thus I would say that the violation of s. 10(b) did not occur when Constable Bisceglia initially prevented the appellant from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that the denial of counsel began from that point.

[135] In this case, in my view, some allowance must be made for the investigators to satisfy themselves that they had the situation in hand. That said, “[a]s noted by the court in Strachan, once the situation is under control the clock starts running”: R. v. Radjenovic, 2011 BCSC 1839, [2011] B.C.J. No. 2652, at para. 56.

[136] The Homicide Squad operated at that time on an on-call basis. According to Barsky, he was notified by telephone that he had been assigned to the case and he had to, in turn, notify his partner, Det. Code. They then had to meet and begin to assemble a preliminary overview of the occurrence, from a variety of sources, in order to know what further investigative steps needed to be taken and in what order. Once that had been done, they then had to travel nearly an hour, in rush-hour traffic, to get from their offices at Police Headquarters, in downtown Toronto, to 22 Division, in the west end of the city. As noted above, they arrived at 6:30 p.m.

[137] Shortly after their arrival at 22 Division, the investigators were briefed by Det. Molyneau, who advised that the situation was under control. That is to say, the accused was in custody and, apart from a house cat being in the apartment, which had to be captured and removed in order to protect against contamination, the crime scene was secure. Neither Barsky nor Code was asked precisely when the briefing with Molyneau ended. Barsky indicated that the next thing he did was to contact Det. Mendoza of FIS to instruct him to seize certain items from the accused. His notes reveal that that conversation commenced at 7:25 p.m. Based on that evidence, I am prepared to assume for the sake of this discussion that the briefing with Molyneau lasted nearly one hour.

[138] From that point, in my view, there was no reason to suspect that anyone else was involved in the crime or that, by being able to contact counsel, the accused could somehow interfere with the investigation. Given all of that, in my view, from 7:25 p.m. forward “the clock [was] running”, such that the Crown can no longer rely on the exigencies of the situation to excuse further delay in affording the accused the opportunity to exercise his right to counsel. Therefore, I hold that the delay from approximately 3:18 p.m., at which time the booking procedure was complete (and the informational component of s. 10(b) had been fulfilled), up to the end of the investigators’ briefing with Molyneau, at approximately 7:25 p.m., was permissible delay pursuant to Strachan and ought not to count against the Crown on this application.

[139] After instructing Mendoza, Barsky next spoke to the arresting officer, P.C. Ross, and P.C. Paul. As earlier noted, at 7:48 p.m., immediately after speaking to P.C. Paul, Barsky endeavoured to contact Duty Counsel.

[140] Time was lost because Barsky decided to enlist the services of a Hindi interpreter, as opposed to arranging for a Dari interpreter from the outset. I can understand, however, how listening to the 911 call would incline one to conclude that, inasmuch as he mentioned Hindi before Farsi, the accused preferred to have a Hindi as opposed to a Farsi interpreter. In cross-examination, Barsky said that he did not believe that he needed to explore any option other than that for which the accused had asked. The impression that a Hindi interpreter would suffice was confirmed for Barksy by his discussions with P.C. Paul concerning the accused’s comprehension of Hindi.

[141] In fairness to the accused’s position, Barsky also indicated that P.C. Paul had told him that the accused had said to him six or seven times that he wanted an Afghan lawyer. Defence counsel suggests that this should have made plain to the investigators that the accused was asking for a Dari interpreter. I disagree. There is a difference between asking for an interpreter and asking for a lawyer. The fact that the accused asked for an Afghan lawyer does not necessarily speak to a linguistic issue; it could also reflect a cultural preference. In this regard, I note that in the booking procedure the accused stated that he wanted to speak to an Afghani police officer, as well as an Afghani lawyer. As one example, when asked if he understood that he was under arrest for murder, the accused stated in Hindi, “Murder? Call Afghani. I will tell him everything. I will not tell if it is an improper Afghani... I will tell everything... I will tell everything.” Some moments later, in response to being asked whether he understood that he had the right to a lawyer, it is clear that he understood because he answered, “I only want an Afghani lawyer. I will tell him everything.” Given the accused’s account of why he killed his wife, namely, that the ongoing tension in the household leading to the fatal incident had much to do with cultural issues involving his children, it may well be that, although he could communicate adequately in Hindi, the accused was only prepared to “tell everything” to someone he thought could empathize with what he saw as his cultural predicament. Indeed, Det. Code testified that he got far more information from the accused concerning how he killed his wife in the later part of the interview when he, Code, adopted what he characterized as an attitude of empathy toward the accused and expressed understanding for his situation.

[142] With the benefit of hindsight, the reasonableness of Barsky’s decision to seek out a Hindi as opposed to a Dari interpreter may seem somewhat questionable. On the other hand, for the reasons articulated above, I cannot say, based on what he knew at the time, that it was unreasonable for Barsky to think that a Hindi interpreter was what the accused wanted or, in the least, that a Hindi interpreter would be satisfactory. I accept, without reservation, that Barsky made the decision he made in good faith and in a genuine effort to accommodate what he understood to be the accused’s wishes in that regard.

[143] From Barsky’s initial call to Duty Counsel, at 7:48 p.m., until the second Hindi interpreter had arrived at 22 Division and was ready to translate at 11:35 p.m., the bulk of the time was taken up by the police waiting for either Duty Counsel or MCIS to return their phone calls or for the second Hindi interpreter, Ms. Desai, to arrive at the station.

[144] Given that I find as a fact that the accused understood what was being said to him in Hindi, one could argue, for purposes of this application, that the time between fulfillment of the informational component of 10(b) and implementation of the right should run from 7:25 p.m., when the briefing with Molyneau was complete, until 11:35 p.m., when the accused commenced his consultation with Duty Counsel using the services of the Hindi interpreter. I recognize, however, that it may be one thing to understand one’s rights as related briefly by a police officer in one’s second language, but quite another to be able to have a meaningful, in depth conversation in that language with a lawyer about something as serious as a murder charge. Therefore, I am prepared to consider, for purposes of this analysis, the entire period from 7:25 p.m. until 1:35 a.m. the following morning when he was finally able to speak to duty counsel using the services of the Dari interpreter.

[145] When, at 11:40 p.m., Barsky came to realize that the accused would not speak to Duty Counsel using the Hindi interpreter and he would have to enlist the services of a Dari interpreter, he once again contacted Duty Counsel. As noted above, the lawyer to whom he spoke, Mr. Paul, suggested that he could enlist the services of a Dari interpreter through an agency that Duty Counsel utilized, but Barsky declined. Defence counsel argues that Barsky ought to have taken advantage of that offer. For the following reasons, I disagree.

[146] First, Barsky said that Mr. Paul advised that the service he was suggesting cost $4.15 per minute. Barsky indicated in examination-in-chief that, despite the importance of a murder investigation, he and his colleagues on the Homicide Squad operate under certain financial constraints and cannot simply spend money at will, particularly when the expenditure may turn out to be unnecessary. Against that backdrop, Barsky said that he knew that he could secure the services of MCIS at no cost to the TPS.

[147] Second, and more importantly, Barsky said he did not avail himself of counsel’s offer because, inasmuch as he was familiar with MCIS as a service often resorted to by other members of the TPS, he was satisfied that they could do the task at hand in a satisfactory and timely fashion, whereas he had no knowledge of the agency Duty Counsel was suggesting. In cross-examination, when it was suggested to him that his principal motivation in declining Duty Counsel’s offer was strictly financial, Barsky indicated that it was only a secondary consideration.

[148] Third, the fact remains that the MCIS interpreter, Mr. Shams, arrived in less than two hours from the time Barsky sought a Dari speaking interpreter. There is no evidence before me that the interpretation service Duty Counsel suggested could have found a Dari interpreter at that time of the night, and, even assuming it could, there is no evidence that such an interpreter could have arrived any sooner than Mr. Shams did.

[149] In Michaud, supra, Stortini J. noted that, while they are obliged to act reasonably in the circumstances, the police are not required to take “extreme means in order to respect an accused's rights under s. 10 of the Charter.” In my view, in light of the fact that Barksy was able to secure the services of a Dari interpreter from MCIS in a relatively short time, at no cost to the police service, and the further fact that he had no knowledge of the quality of the service Duty Counsel was suggesting, it was reasonable for Barsky to decline Duty Counsel’s offer.

[150] As noted above, from the time Barsky realized that the accused was insisting upon being afforded a Dari interpreter until the time he was able to speak to counsel through the medium of Mr. Shams was approximately two hours. Once again, the bulk of the time was spent waiting for Duty Counsel to return a telephone message and arranging, and waiting for, the arrival of Mr. Shams.

[151] In the result, although the overall delay was considerable, I am unable to conclude that it amounted, in all the circumstances to a breach of s. 10(b).

(iii) Application of Section 24(2)

[152] In the event that I am wrong, and the delay in this case did amount to a breach of the accused’s s. 10(b) right, I propose to examine what remedy, if any, should flow.

[153] To begin, I appreciate that, in order to be excluded pursuant to the application of s. 24(2) of the Charter, evidence need not necessarily be causally related to a constitutional breach. See R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463, where, at paragraph 40, the Court stated:

Although Therens and Strachan warned against over-reliance on causation and advocated an examination of the entire relationship between the Charter breach and the impugned evidence, causation was not entirely discarded. Accordingly, while a temporal link will often suffice, it is not always determinative. It will not be determinative if the connection between the securing of the evidence and the breach is remote. I take remote to mean that the connection is tenuous. The concept of remoteness relates not only to the temporal connection but to the causal connection as well. It follows that the mere presence of a temporal link is not necessarily sufficient. In obedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it is appropriate for the court to consider the strength of the causal relationship. If both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter. On the other hand, the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causal connection that is weak or even absent will be of no importance. Once the principles of law are defined, the strength of the connection between the evidence obtained and the Charter breach is a question of fact. Accordingly, the applicability of s. 24(2) will be decided on a case-by-case basis as suggested by Dickson C.J. in Strachan. [Emphasis added.]

Thus, I recognize that a temporal connection will often suffice to support a finding of a s. 10(b) breach where ‘[t]he evidence was obtained immediately after a lengthy violation of the appellant's rights and the breach was "an integral part of a single transaction"’: R. v. Caputo, 1997 1636 (ON CA), [1997] O.J. No. 857 at paragraphs. 39 - 40, citing Goldhart, supra, at pp. 494-95.

[154] In R v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, the court examined the question of whether a statement has been tainted by an earlier Charter breach. At paragraph 21, speaking for the court, Fish J. stated:

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of the three": R. v. Plaha (2004), 2004 21043 (ON CA), 189 O.A.C. 376, at para. 45. A connection that is merely "remote" or "tenuous" will not suffice: R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.

[155] In this case, counsel argues that the delay between advising the accused of his right to counsel and affording him an opportunity to exercise that right was so long that it would have diminished in the mind of the accused the importance of the advice he eventually received from counsel. Absent any direct evidence on the point, and in the face of the evidence that is before me, I reject that submission as entirely conjectural. The accused spoke to Duty Counsel for approximately 40 minutes; that is a strong piece of circumstantial evidence suggesting that he considered the exercise worthwhile. Were it otherwise, he would not have spent that amount of time on the telephone.

[156] In R. v. Plaha, 2004 21043 (ON CA), [2004] O.J. No. 3484 (C.A.), at paragraph 47, Doherty J.A, speaking for the Court held:

The appellant's consultation with counsel was part of [a] chain of events. A consultation with counsel can sometimes have the effect of severing a subsequent statement from an earlier breach of the right to counsel. It does not, however, automatically immunize the subsequent statements from that earlier Charter breach. The effect of that consultation on the question of whether the subsequent statement was obtained in a manner that infringed the accused's right to counsel must be a case-specific inquiry.

[157] The facts in Plaha are similar to the case at bar in that the accused in each case was held in a room continuously for many hours before giving the impugned statement. In that regard, Doherty J.A. stated:

The measurement of the temporal connection between a breach and a subsequent statement requires more than simply counting the minutes or hours between the two. Events that occur during the time interval can colour the significance of the passage of time. Here, the appellant was sitting by himself in a small interview room for almost the entire six and a half hours. He was under the total control of the authorities and his contact with the rest of the world was exclusively through the authorities and subject to their control. Virtually nothing had changed in the six and a half hours between the last breach of the appellant's right to counsel and statement #4. I do not think time passed for the appellant in the same way it would for someone who was not in custody. To a large extent, time was frozen for the appellant. In such circumstances, the mere ticking of the unheard clock cannot distance statement #4 from the earlier events.

[158] It could also be said of the accused in this case that “[h]e was under the total control of the authorities and his contact with the rest of the world was exclusively through the authorities and subject to their control.” However, apart from the simple passage of time (during which period the accused in this case was not afforded the opportunity to consult with counsel), the difference in this case is that the police did nothing by way of attempting to gather evidence. Unlike Plaha, where various statements were taken from the appellant before he had been afforded his right to counsel, here, beyond the passage of time, there was no discreet breach of the accused’s s. 10(b) right that, to my mind at least, would likely have affected what the accused was apt to say after he consulted with counsel.

[159] Defence counsel argues that the statements are tainted by all that had preceded them. For the following reasons, I disagree.

[160] First, in Plaha, the Court of Appeal found, that “the statements and the breaches were all part of the same interrogation process” and were, thus, inadmissible, because “the police made no attempt to sever any connection...” between the earlier s. 10(b) breaches and the statements at issue: Plaha, at paragraphs 51 and 53. In contrast, the statements at issue in this case did not arise as a result of reliance by the authorities on an earlier statement gathered in breach of s. 10(b). The only prior statement dealing with the events in question, the 911 call, is admitted to be both voluntary and constitutionally sound. As noted above, the breach, if any, arises from the simple effluction of time, as opposed to any specific actions by any of the officers who dealt with the accused and later reliance on the fruits of those actions. Thus, the nexus between the breach, if indeed there was a breach, and the statements the Crown seeks to adduce is extremely tenuous.

[161] Second, in R. v. D.(R.), in considering when a statement will be tainted by a constitutional breach in relation to an earlier statement, Sopinka J. held that ‘in order to constitute a "fresh start", the effect of the first statement would have had to be dispelled by appropriate language’: 1994 131 (SCC), [1994] 1 S.C.R. 881, at paragraphs 1 and 2, citing R. v. I. (L.R.) and T. (E.), 1993 51 (SCC), [1993] 4 S.C.R. 504. In this case, the following factors convince me that the first interview amounted to a “fresh start” within the meaning of the authorities:[^6]

(i) the accused had just finished a 40 minute consultation with Duty Counsel immediately before the interview began, conducted with the assistance of the Dari interpreter;

(ii) the accused had the assistance of the Dari interpreter for the interview;

(iii) the Homicide Squad officers had not dealt with the accused up to the point at which the interview began;

(iv) Barsky advised the accused of his rights to counsel at the outset of the interview and went to some lengths to explain those rights;

(v) Barsky told the accused that he was not obliged to speak with them; and

(vi) Barsky advised the accused that, in deciding whether or not to speak to them, he should not be influenced by anything said to him by any officer with whom he had earlier been in contact.

[162] Third, irrespective of whether the delay in implementing the accused’s right to counsel amounted to a s. 10(b) breach, I am firmly of the view that the accused would have spoken to the police in any event. I recognize, of course, that in the case of a breach of a s. 10(b) the burden is on the Crown to prove on a balance of probabilities that, even without the breach, the accused would have made the statement: R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343, 92 C.C.C. (3d) 423, at 429-30. In Harper, Lamer C.J. noted that, while the accused bears the ultimate onus of persuasion on a Charter application, the onus will shift to the prosecutor to justify the admission of evidence gathered as a consequence of a breach. For the reasons that follow, I am satisfied that the Crown has met that onus.

[163] In Plaha, relying on R. v. T.(E.), 1993 51 (SCC), [1993] 4 S.C.R. 504, 86 C.C.C. (3d) 289, at 306, Doherty J.A. held, at paragraph 59, that “[e]vidence that is conscriptive will not impair the fairness of a trial if the Crown can demonstrate on evidence that an accused would have provided the same conscriptive evidence had his or her constitutional rights been honoured.” See also R. v. Dolynchuk, 2004 MBCA 45, 2004 MBCA No. 135, 184 C.C.C. (3d) 214, at 231-32.

[164] In Harper, at paragraph 15, Lamer C.J., upheld the admission of a statement, notwithstanding a s. 10(b) breach, because “the appellant appear[ed] to have had an almost irresistible desire to confess.”

[165] In R. v. Bonder, [2005] O.J. No. 2512 (S.C.J.), also a case in which the accused stabbed his wife to death, Wein J. was required to determine the admissibility of a statement gathered after an alleged s. 10(b) breach. In holding that, even had there been a breach, the statement was nonetheless admissible, Wein J. stated at paragraph 117 ff:

This situation is clearly distinguishable from the facts in Plaha, where the unambiguous earlier breach of Charter rights was found by the Court of Appeal to have an ongoing impact tainting the later statement. Mr. Bonder's situation more closely parallels the case of R. v. Harper (1994), 1994 68 (SCC), 92 C.C.C. (3d) 423, [1994] 3 S.C.R. 343 (S.C.C.). In Harper, the court found that the accused had an almost irresistible desire to confess, even after he was advised of his right to silence. So also, Mr. Bonder emphasized that he definitely wanted to speak to the police, and gave a detailed explanation of the history of the relationship that led up to his actions on the night in question. As in Harper, the evidence strongly indicates that Mr. Bonder would not have acted any differently had the police advised him of the murder charge at the time he first spoke to them. He spoke to many people, both the police and at the hospital, in explaining his actions. He insisted on speaking to the police in a lengthy videotape statement even after speaking to a lawyer. As in Harper, he did not testify on the voir dire or tender any evidence to suggest that he would have exercised his rights differently.

Accordingly, it must be concluded that the videotaped statement would have been made even if any earlier violation of his rights, assuming there had been a violation as the defence argued, had not occurred. In that sense, as in Harper, the admission of the later statements would not affect the fairness of the trial.

[166] Turning to this case, in the 911 call, the accused stated no fewer than eight times, on my reading of the transcript, that he would tell the police what happened, but only if they were to attend his apartment.

[167] Again during the booking procedure, as the following excerpts reveal, the accused said numerous times that he would tell the police what had happened:

“Call Afghani and I will talk to him.”

“Call Afghani. I will tell him everything. I will not tell if it is improper Afghani.”

“I will tell everything.”

“Please call Afghani. There is nothing without an Afghani.”

“I have told you everything. Call one Afghani, and I will tell everything.”

“I only want an Afghani lawyer. I will tell him everything.”

“I do not tell. Call an Afghani. Bring one Afghani. I will tell him everything. Why are you giving me so much trouble?

[168] Thus, as opposed to the statement resulting from the breach of the accused’s s. 10(b) rights, as defence counsel suggests, it is clear to me that, from the outset of his dealings with the authorities, the accused was not just inclined, but, rather, determined to tell the authorities “everything” that had happened. He was only prepared to do so, however, at least initially, once they had met his conditions, namely, that he be provided with an Afghani police officer, an Afghani counsel and a Dari interpreter. He remained largely steadfast in that regard. I say “largely” because, although he was never dealt with by an Afghani police officer and never provided with an Afghani lawyer, he remained adamant that he would not speak except with the assistance of a Dari interpreter and only after he had been provided with a Dari interpreter did he then make a statement.

[169] It bears repeating at this juncture that the accused had already confessed to the 911 operator, in a statement he acknowledges was both voluntary and constitutionally sound. All the accused was doing when he finally spoke to the investigators was amplifying what he had earlier admitted.

[170] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paragraph 71, the Court set out a three stage inquiry with respect to the application of s. 24(2) of the Charter:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[171] In terms of the seriousness of the Charter-infringing state conduct, I find as a fact that the police officers did not intentionally breach the accused’s right to counsel; nor were they ever consciously aware of having unintentionally breached his rights. Rather, I find that all officers involved with the accused acted in good faith. Indeed, albeit it took quite some time to accomplish, the investigators went to considerable lengths to ensure that the accused was afforded his right to speak to counsel. As such, I find there was no state misconduct. That, in turn, weighs heavily in favour of admission of the evidence: R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at para. 114.

[172] As for the impact of the breach on the accused’s Charter protected rights, once an accused requests an opportunity to consult counsel, the police are obliged to refrain from eliciting incriminating evidence from him until he is afforded that opportunity: R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, 92 C.C.C. (3d) 353, at 375. In this case, while there was unquestionably a lengthy delay in affording the accused the opportunity to consult counsel, the officers deliberately held off questioning the accused until he had, with the assistance of the Dari interpreter, spoken to counsel at length. That said, I am not persuaded that the delay itself had any causal relation to the accused giving the statement he did and, although, if there was a breach, it continued up to a point just before he gave his first statement, nevertheless, for the reasons stated above, the temporal nexus is insignificant, in my view. Rather, as I have indicated, I am convinced that the accused was determined to give a statement. In Grant, at paragraph 96, relying on Harper, the court held:

[W]hen a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach... the impact of the breach on the accused's protected interest in informed choice may be less.

[173] While, admittedly, the impugned statement gives more detail, it really adds little of any real inculpatory significance to what the accused had already said to the 911 operator. Hence, the prejudice, if any, arising from the admission the accused’s statements is minimal. In the result, I find that the implementational delay had no impact of any significance on the accused’s Charter protected rights.

[174] As for the third inquiry, given the seriousness of the case, obviously it is highly desirable that it be dealt with, if at all possible, on its merits.

[175] On the other hand, generally speaking, one of the main concerns respecting statements taken in contravention of Charter rights is their reliability. Obviously, no case, most particularly a case of this gravity, should be decided on unreliable evidence. In this case, however, given the similarity of what the accused said in the 911 call to the account he gave in the impugned statements and given, further, the lack of any causal link between the breach and the content of the resulting statements, I find there is no reason to be sceptical of their reliability.

[176] For the most part, courts have tended to exclude statements obtained in breach of the Charter, but, as the court in Grant indicated, exclusion is not automatic: R. v. Lauzon, 2011 ONSC 7179, [2011] O.J. No. 5820 (S.C.J.), at para. 136.

[177] Having applied the three-part test from Grant, in all the circumstances I am satisfied that the admission of the accused’s statement would not bring the administration of justice into disrepute.

[178] Accordingly, the accused’s application to exclude his statements is hereby dismissed.

Clark J.

DATE: October 4, 2012

COURT FILE NO.: 09-50000744-0000

DATE: 20121004

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PEER MOHAMMAD KHAIRI

Accused

VOIR DIRE #1

ADMISSIBILITY OF STATEMENTS

REASONS FOR DECISION

Clark J.

Released: October 4, 2012

[^1]: Across North America, AT&T provides qualified interpreters in various languages to assist 911 operators. It is admitted for purposes of this voir dire that the Hindi interpreter correctly interpreted the accused’s utterances and further admitted that the transcription of the 911 call, now entered as Exhibit 2, is a correct translation of what was said during the call, both in English and Hindi.

[^2]: Exhibit 3 on the voir dire is a DVD video recording of the two booking procedures described above. Apart from a short hiatus when a new DVD was inserted to replace one that was full, the entirety of the booking procedure was video and audio recorded. There is no suggestion that anything of significance occurred during the few moments that were not recorded.

[^3]: No issue is taken with the seizure of that clothing.

[^4]: Although both officers have since been promoted to the rank of Detective Sergeant, I refer to them throughout these reasons by the rank they then held.

[^5]: Barsky indicated that he had listened to the 911 recording by that point.

[^6]: R. v. Woods, 2008 ONCA 713, [2008] O.J. No. 4025; R. v. Lewis, 2007 ONCA 349, [2007] O.J. No. 1784.