SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CRIMJ(F) 1734/12
DATE: 20121012

RE: R. v. Gloria Molina

BEFORE: Baltman J.

COUNSEL: C. Braid for the Crown
A. Munoz for the Defence

RULING ON VOIR DIRE

[ 1 ] Gloria Molina is charged with importing 4 kilos of cocaine, found hidden in her luggage following her arrival at Pearson airport on May 24, 2011. She has elected trial by jury.

[ 2 ] On this voir dire the Crown seeks a ruling that statements made by Molina were voluntary and admissible as evidence. There are essentially two statements in issue, both of which were made to Border Service Officers (BSO’s) after her arrest. Neither statement was video or even audio recorded.

[ 3 ] It is undisputed that although Molina has some fluency in English, her first language is Spanish, and consequently Spanish interpreters are assisting her throughout this proceeding. She did not testify on this voir dire and no evidence was proffered by the defence.

The Evidence

[ 4 ] At approximately 5:30 a.m. on May 24, 2011, Molina arrived at Pearson Airport on a flight from Buenos Aires, Argentina. The Air Canada flight had made one stopover in Santiago, Chile. Shortly before 6:00 a.m. she spoke to primary examination BSO Kowalczyk, and provided the following information:

a) She was travelling alone;

b) She had been away from Canada for two weeks;

c) She had $0 in goods to declare; and

d) She was employed as a cleaner.

[ 5 ] Molina’s passport showed a prior trip to Argentina in April 2011. Because Molina’s employment did not appear to support her travel activities, Kowalczyk became suspicious and coded her into secondary for drugs. He testified he had no problems communicating with her in English and did not detect any difficulties in her comprehension.

[ 6 ] At approximately 6:15 a.m. Molina spoke with BSO Hotham in the secondary inspection area. Molina was travelling with two checked bags and one carry-on bag. She told Molina the following:

a) She was coming from Argentina;

b) She was travelling alone;

c) She worked as a cleaner;

d) She was visiting her boyfriend in Argentina, whom she had met on the internet;

e) Her boyfriend worked as a lawyer in Argentina;

f) She had been in Argentina since May 10, 2011;

g) She had nothing to declare.

[ 7 ] Hotham observed from her passport that she had visited Argentina in April 2011 as well. He asked her the standard three questions, namely “are these your bags”, “did you pack them yourself”, and “are you aware of the contents”? She answered “yes” to all three.

[ 8 ] Hotham then proceeded to examine Molina’s luggage. After the first suitcase was emptied Hotham noted that the bag felt unusually heavy. An x-ray revealed anomalies and so Hotham drilled into the bottom of the suitcase, and discovered white powder. A cocaine Nik swab tested positive for cocaine.

[ 9 ] At approximately 6:30 a.m. Molina was arrested and read her rights to counsel and caution. When asked if she understood, she said “yes”. She also indicated she wished to speak with counsel. Hotham observed that English was not Molina’s first language. He testified that although Molina appeared to have some difficulty understanding him the first time he said things, when he repeated or rephrased them she responded appropriately and appeared to comprehend him.

[ 10 ] Hotham proceeded to examine Molina’s second suitcase and discovered additional cocaine there. The two pieces of luggage were weighed without their contents. The first bag, the smaller of the two, weighed 6.8 kg (approximately 15 pounds). The second bag weighed 8.8 kg (19.4 pounds).

[ 11 ] At approximately 6:40 a.m. two female BSO’s, Tedford and McQuoid, arrived. Tedford was the primary officer of the team, responsible for reading Molina her rights and conducting the search. As she was the lead officer she only had time to make brief notes during the investigation. However, she prepared a more detailed “recap” shortly after Molina was turned over to the RCMP, which occurred at 10:00 a.m.. McQuoid, who was there to assist, was also the primary note taker, and she took notes contemporaneously throughout the detention.

[ 12 ] When Tedford first encountered Molina she read her the secondary warning and asked if she understood it. Molina replied “no”. Tedford then rephrased it, by removing the “legalese”. She made no note of the alternate phrasing she used, nor could she recall it on the witness stand. When asked again if she understood, Molina said “yes”. When Tedford asked Molina if she wished to speak to a lawyer she replied “yes”. Tedford and McQuoid then escorted Molina to a search room.

[ 13 ] After they arrived in the search room they realized the phone they would use to call Legal Aid was not working, so McQuoid left to find another room. Tedford testified that Molina then made the first utterance in issue, namely that “she wanted to call her family because they did not know she had gone to Argentina”. Tedford told her she could not call her family directly but should speak to her lawyer about contacting them on her behalf.

[ 14 ] At 7:00 a.m. McQuoid returned to escort them to another search room where the phone was working. Tedford then left a message with Legal Aid requesting a Spanish speaking lawyer. Tedford could not recall whether Molina asked for a Spanish speaking lawyer or whether she (Tedford) asked for one on her own initiative.

[ 15 ] Molina was then asked to review the s. 98 notice on the wall, which describes the search powers of customs officers. She requested her eyeglasses, which were retrieved for her, but then advised she had trouble understanding the notice. Tedford testified she then explained the contents to her in simplified language, whereupon Molina appeared to understand it. Once again, Tedford could not recall what wording she substituted.

[ 16 ] At approximately 7:15 a.m. Tedford and McQuoid began to search Molina, by asking her to remove her jewellery, glasses, shoes and various accessories. Molina understood each request without difficulty and responded appropriately. Duty counsel then called and Molina spoke with him for approximately 6 minutes. Tedford, who picked up the phone, could not recall if she ascertained whether or not the lawyer spoke Spanish, even though she had previously requested a Spanish speaking lawyer. Nor did Molina indicate to the BSO’s what language she conversed in with counsel, or that she had any problem communicating with him.

[ 17 ] After the call was completed the BSO’s continued with their search. Each time they asked Molina to remove a specific item of clothing she understood the request and complied by removing the corresponding item. When asked whether she required any medications, she explained that she had cholesterol and high blood pressure but was regulating that through diet. She was asked for and provided her height and weight, and her address and phone number. After using the restroom Molina asked for water to wash her hands, and was provided with hand sanitizer.

[ 18 ] At approximately 9:45 a.m. the officers went to her cell to inquire who was meeting Molina at the airport. This is when the second utterance arose. According to both Tedford and McQuoid, when asked who was picking her up, Molina replied that “her boyfriend had arranged for a woman to pick her up but that she didn’t know the woman’s name or what she looked like”. When asked how they would recognize each other, Molina said she wished to speak with her lawyer.

[ 19 ] Shortly after the RCMP arrived and took Molina into their custody.

Legal Framework

[ 20 ] It is well established that the onus is on the Crown to establish beyond a reasonable doubt that statements made by an accused to any persons in authority were voluntary, in order to be admissible.

[ 21 ] In assessing voluntariness the court must keep in mind the twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes. The focus is on the conduct of the police and its effect on the accused’s ability to exercise her free will. The relevant factors include threats or promises, oppression, the requirement of an operating mind and police trickery. These inquiries are highly fact-specific: R v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3 (S.C.C.) .

[ 22 ] In R. v. Lapointe , 1983 3558 (ON CA) , [1983] O.J. No. 183 the Ontario Court of Appeal held that language capacity is not relevant in assessing the voluntariness of a statement unless the defendant’s comprehension was “so deficient that it was impossible for them to have understood the police or to have made any statements in English” (para. 43). However, a court may consider a person’s limited language abilities in determining whether a reliable record of his statements has been made: R. v. Farooq, [1998] O.J. No. 3711 (S.C.) . See also R. v. Sahota , [2009] O.J. No. 3519 (S.C.) and R. v. Sabogal-Ventocilla , 2011 ONSC 974 , [2011] O.J. No. 1438 (S.C.).

[ 23 ] In R. v. Burke , 2010 ONSC 6530 , [2010] O.J. No. 5219 , at paras. 28-39 , I reviewed the jurisprudence concerning the failure by police to adequately record statements. In sum:

• While there is no absolute rule requiring the recording of statements, not only is it the better practice but in many circumstances the failure to record will render a confession unreliable;

• Where a suspect is in custody, recording facilities are readily available and the police deliberately set out to interrogate the suspect, a non recorded statement will be suspect; in that case the court must consider whether there exists a “sufficient substitute” for the recording.

[ 24 ] See, in particular, Oickle , para. 46 ; R. v. Moore-McFarlane , 2001 6363 (ON CA) , [2001] O.J. No. 4646 (C.A.) at paras. 65 and 67 ; R. v. Ahmed , 2002 695 (ON CA) , [2002] O.J. No. 4597 (C.A.) at para. 22 .

Analysis

[ 25 ] The defence does not allege that the BSO’s used threats, promises or trickery to solicit the statements in issue. Rather it maintains that Molina’s language comprehension was so deficient that any statement she made cannot be considered the product of an operating mind, and is therefore not truly voluntary. Alternatively, it maintains that the notes made by the BSO’s are not a reliable record of the impugned statements.

[ 26 ] Dealing first with the language issue, I am not persuaded that Molina’s language capacity was so deficient that it was impossible for her to understand what was being said to her, or that she could not have made the utterances in question. For the majority of her interaction with the BSO’s over several hours she conversed normally and without difficulty. Virtually all of her answers to any questions posed were responsive and logical.

[ 27 ] Although Molina struggled initially to comprehend her legal rights and the contents of s. 98, the uncontradicted evidence is that when that information was restated in simpler terms she indicated she understood. It is also reasonable to assume that as both statements were made after she was given her rights to counsel, and indeed the second one after she spoke with counsel, she understood her right to silence but chose to speak nonetheless. Although I find it disturbing that Tedford was not aware whether duty counsel spoke Spanish, despite having made that request, there is no evidence that Molina had difficulty communicating with counsel in whatever language was used.

[ 28 ] Consequently, I cannot find that Molina’s statements were involuntary due to any language barrier that existed. To the extent there is any dispute about the accuracy or completeness of the words attributed to her, that is a matter of weight for the jury.

[ 29 ] The other issue, namely the reliability of the record made of her statements, is a trickier matter. In Moore-McFarlane Charron J.A. emphasized that Lapointe “does not stand for the proposition that all issues of accuracy and completeness of recording are left to the triers of fact” (para. 67, my emphasis). Indeed, the completeness and accuracy of the record must be central in the trial judge’s decision as to whether the statement is admissible at all. That is why video or at least audio recordings are highly desirable in all cases where an accused may be making a statement to a person in authority. As Charron J.A. in Moore-McFarlane and other appellate authorities have since stated, where three conditions exist – 1) the suspect is in custody; 2) recording facilities are readily available; and 3) police deliberately interrogate the suspect without consideration of forming an accurate record – the impugned statement will be suspect and the court must consider whether there is a sufficient substitute.

[ 30 ] In this case two of those three conditions clearly exist. It is undisputed that Molina was in custody. And it cannot be said that recording facilities were not readily available. As I noted in R. v. Ebanks , 2012 ONSC 3887 , it is no answer that recording devices have not yet been supplied to BSO’s, because that could be achieved with minimal effort and expense.

[ 31 ] As for the third factor – whether the police were attempting to obtain an incriminating statement - I note that the two statements here are different in kind. The first statement – when Molina asked to call her family because they were unaware she had travelled to Argentina - was not elicited in any deliberate way by the BSO’s. It appears to be more of a spontaneous request by Molina that was triggered by hearing that she would be permitted to speak on the phone with a lawyer. Consequently, as I cannot say that the BSO’s deliberately set out at that point to interrogate Molina, it does not fall within the category of statements identified in Moore-McFarlane and subsequent case law as unreliable.

[ 32 ] Nor do I see any evidence that the statement was not accurately recorded. Although Tedford was the only witness to the statement (McQuoid had left to find another search room with a working phone), Tedford recorded this statement both in her contemporaneous note and in her “recap”. The two notes are virtually identical and there is no evidence to suggest that Tedford misapprehended or incorrectly recorded what Molina said at that point.

[ 33 ] I turn now to the second statement attributed to Molina, namely that “her boyfriend had arranged for a woman to pick her up but that she didn’t know the woman’s name or what she looked like”. In contrast to the first utterance, this was clearly elicited as part of the investigation, and was a deliberate attempt to obtain an incriminating statement. As McQuoid noted in her narrative report, “[w]e returned to the cell in order to inquire about her reception”. Therefore the question is whether there is an adequate record to compensate for the absence of an audio recording.

[ 34 ] In her initial note, recorded at 9:44 a.m., Tedford recorded the question but not the impugned reply: “checked [passenger] ...Who was picking her up. She wished to speak to lawyer.” However, in her recap, done “shortly” after 10:00 a.m., she provided a more detailed note:

Q. Who was picking her up at airport.

A. Her boyfriend in Argentina made arrangements for a woman to pick her up.

Q. What does this woman look like?

A. I don’t know, I never met her.

Q. How will be able to identify her.

A. I wait to speak to my lawyer.

[ 35 ] McQuoid, who was present during this exchange, made the following contemporaneous note:

“Accompanied BSO Tedford to ask passenger re reception – stated her boyfriend arranged for a woman to pick her up – did not know who – BSO Tedford asked how reception would recognize her and she stated that she wished to wait for her lawyer in order to speak”.

[ 36 ] Although Tedford’s initial note omits the thrust of the impugned statement, I am satisfied that is because of the time constraints she was under. I find it significant that her recap not only fills in the relevant details, but is largely consistent with what McQuoid recorded. There was no evidence to contradict the officers’ version of what Molina said or to suggest they collaborated to create matching notes; Molina did not testify on the voir dire and the defence offered no evidence.

[ 37 ] For those reasons, I am satisfied that in this case the notes made by Tedford and Molina are adequate to compensate for the absence of an audio recording. Of course, as with the earlier statement, it is open to the defence at trial to challenge the accuracy or completeness of the statement, and it will be for the jury to decide what if any weight to give it.

[ 38 ] Having said all this, I am troubled, once again, by the ongoing refusal of the Canada Border Service Agency to implement audio taping procedures for any statements their officers attempt to elicit. The associated cost of purchasing and maintaining the necessary equipment is miniscule compared to the cost of running a voir dire after the fact to try and re-create what happened. While this should become common practice in all cases, it is particularly important where English is not the defendant’s first language and no effort was made to obtain a qualified interpreter.

[ 39 ] Despite those pressing concerns, in the circumstances of this particular case I find the statements admissible.

Baltman J.

DATE: October 12, 2012

COURT FILE NO.: CRIMJ(F) 1734/12
DATE: 20121012

SUPERIOR COURT OF JUSTICE - ONTARIO RE: R. v. Gloria Molina BEFORE: Fragomeni J. COUNSEL: C. Braid for the Crown A. Munoz for the Defence RULING ON VOIR DIRE Baltman J.

DATE: October 12, 2012