ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-5-0000-409-0000
DATE: 20130225
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SUNDAY MAWUT
Laura Bird, for the Crown Applicant
Ariel Herscovitch, for the Respondent
HEARD: February 11 and 12, 2013
b. p. o’marra j.
Ruling on admissibility of utterances attributed to the respondent
the facts
[1] Shortly before 5:00 p.m. on November 1, 2011 uniformed members of Toronto Police Service arrested Mr. Mawut based on an outstanding warrant in the first instance. The charges included robbery with a firearm.
[2] Mr. Mawut was advised of the general nature of the charges and his rights under s. 10(b) of the Charter. He appeared to understand and indicated he wished to contact counsel Sharon Jeethan.
[3] He was handcuffed and transported to the police station. After booking he was placed in a secure room by himself. The police made efforts to contact his counsel. At approximately 6:32 p.m. Mr. Mawut spoke by phone with counsel Ms. Jeethan in privacy.
[4] Officers Donald Belanger and Steven Campoli were working the evening of November 1, 2011 as members of the hold-up squad. They were not part of the original investigative team related to the armed robbery on October 13, 2011. They arrived at the station at 6:51 p.m. and spoke to the arresting officers.
[5] Sergeant Belanger has served with the Toronto Police Service for 16 years. On November 1, 2011 he held the rank of Detective. Detective Campoli has been a member of Toronto Police Service for 10 years.
[6] Officer Belanger received information about the arrest and also had some memory of having viewed the security video from the scene of the robbery. He was told that Mr. Mawut had spoken to counsel by phone in private. The debriefing ended at 7:10 p.m.
[7] At 7:14 p.m. Officers Belanger and Campoli escorted Mr. Mawut to another office in the station. Mr. Mawut was not handcuffed. Mr. Mawut was offered food, water or use of a washroom before they arrived at the second office. He declined any of those options. He was left alone in that secure room. Officers Belanger and Campoli went to another office to review available information about the outstanding charges against Mr. Mawut.
[8] The room where Mr. Mawut was lodged had a desk and chairs but no audio or video equipment.
[9] At 8:17 p.m. Officer Belanger and Campoli returned to the room where Mr. Mawut was lodged. They both testified that their plan and intention was as follows:
To inform Mr. Mawut of all the charges with particularity.
To find out if he wanted to speak to a lawyer again.
To see if he would agree to be interviewed on video.
To make sure he understood his jeopardy.
Officer Belanger would bring his notebook and make notes as necessary.
Officer Campoli would not make notes in the room. He was to be present primarily for officer safety.
They did not go into the room with the intent or plan to conduct an interview.
If Mr. Mawut agreed, they would conduct an interview on video in another equipped room.
[10] Officer Campoli testified that his presence for officer safety (and not to make contemporaneous notes) was based on the following:
(a) The violent acts alleged in the charges.
(b) Information that Mr. Mawut had to be taken to the ground and handcuffed at the arrest.
(c) The size of Mr. Mawut.
[11] Officer Belanger took the lead when they entered the room at 8:17 p.m. He introduced himself and Campoli as members of the hold-up squad and confirmed that Mr. Mawut had spoken to counsel.
[12] Officer Belanger then advised that he had a list of all the charges and would read them out so Mr. Mawut could decide if he wished to contact counsel again.
[13] Mr. Mawut then asked “How many charges?”
[14] Officer Belanger then read out the list of 12 charges. Mr. Mawut said “Sir that’s too many charges. Please don’t do this to me.” He began to cry.
[15] Officer Belanger asked if he wished to speak to his lawyer again having heard the charges. Mr. Mawut said “Sir, Benny put my up to this. He sent me to do it.” He continued to cry.
[16] Both officers testified they did not know who “Benny” was at the time.
[17] Officer Belanger said the following:
Sunday I have to stop you there. We will be able to discuss everything with you but first I need you to understand that anything you say to us can be used as evidence in Court. I’m writing down everything you say.
[18] Mr. Mawut replied “I’m fucked” in a raised voice.
[19] Officer Belanger then said the following:
Sunday I realize you’re upset but we need you to remain calm.
[20] Mr. Mawut replied “I’m going to jail because of Benny”.
[21] Officer Belanger then said they would discuss everything with him but prefer to do it on video. Before doing that he suggested that Mr. Mawut may want to tell his lawyer about the additional charges. He asked if Mr. Mawut wanted them to contact his lawyer again. He went on to say that if he wished they could “skip the lawyer call and go set up the video room”.
[22] Mr. Mawut replied he did not wish to go on video. Officer Belanger asked if he would provide an audio statement or they could proceed with writing the notes. Mr. Mawut replied “My lawyer said no statements”. He said he was sure about that and did not want to speak to his lawyer again.
[23] That concluded the exchanges between Officer Belanger and Mr. Mawut. The officers were in the room with Mr. Mawut for nine minutes.
[24] Mr. Mawut did not testify on the voir dire.
Position of the Accused
[25] Mr. Herscovitch submits the Crown has failed to meet the onus to admit the utterances for the following reasons:
The failure to record the exchanges on audio or video in accord with R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 160 C.C.C. (3d) 493.
The sheer implausibility of the police evidence as to how the conversation unfolded in nine minutes.
Position of the Crown
[26] The Crown submits the following:
The police did not intend or plan to ask investigative questions when they spoke to the accused.
The accused made spontaneous utterances in response to information provided by the police.
The police accurately recorded what was said by all.
The police evidence stands uncontradicted.
the law
[27] In situations where:
(a) The suspect is in custody; and
(b) recording facilities are readily available; and
(c) 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.
R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 160 C.C.C. (3d) 493 (O.C.A.) at para. 65.
R. v. Marshall 2005 30051 (ON CA), [2005] O.J. No. 3549 (O.C.A.) at para. 98.
[28] There is no absolute rule requiring recording of statements.
R. v. Oickle 2000 SCC 38, [2000] 2 S.C.R. 3 at para. 46.
[29] Assuming the Crown can put forward a record sufficient to establish voluntariness the question of the accuracy of what the police recorded is a matter of weight and not admissibility.
R. v. Khairi [2012] O.J. No. 4649 (O.S.C.) at para. 83.
analysis
[30] The record keeping procedure adopted by the police was awkward and cumbersome.
[31] Officer Belanger would take the lead throughout and would also make handwritten notes of what was said.
[32] Officer Campoli would not make contemporaneous notes in the room with Mr. Mawut. He would sit and observe for officer safety.
[33] Officer Belanger would write out each question or comment in his notes before reading it to Mr. Mawut.
[34] If Mr. Mawut made any comments or questions Officer Belanger would record them verbatim in his notes.
[35] Officer Belanger would then stop and write out verbatim his next comment or question in full before reading it to Mr. Mawut.
[36] The long list of 12 serious charges read to Mr. Mawut elicited an emotional response and brief admissions.
[37] Both Officer Belanger and Campoli agreed that they had experience on other cases where admissions and/or denials were uttered by suspects in response to charges being read.
[38] Officer Belanger testified that his practice is to first ask a suspect whether they agree to go on video before investigative questions are asked. In his experience suspects may “shut down” and not give a statement if on video from the outset.
[39] The police in this case claim that Mr. Mawut blurted out admissions in circumstances where investigative questions were not being asked.
[40] The officers could reasonably anticipate that Mr. Mawut might well blurt out utterances when faced with the particulars of the many charges he faced. That is in fact what happened here.
[41] However, the stated intention of the officers was not to ask investigative questions. There were suggestions of the contrary in cross-examination that were not accepted by the officers. There was no contradictory evidence on the application.
[42] For obvious reasons it would have been preferable if the entire exchange between the officers and Mr. Mawut had been recorded on video or audio. However, the failure to do so in this case does not render the evidence inherently suspicious or unreliable.
[43] The officers did not ask any investigative questions. There was no follow up on such questions when Mr. Mawut blurted out admissions. Rather, the police reminded him he could call counsel again if he wished. Mr. Mawut was obviously aware of his right to counsel and his right to remain silent.
[44] Counsel for Mr. Mawut submits that the process described by the police with contemporaneous notes could not have been completed in the nine minutes alleged. He relates this to the failure to record on video.
[45] Copies of the notes of Officer Belanger and Campoli were filed as part of Exhibit 3.
[46] Officer Belanger’s handwritten notes for the nine minutes cover four pages. There are 29 lines on each page. Most lines have just two or three words written on them. A few lines have one word written. There are eight lines with four words.
[47] Officer Campoli’s handwritten notes for the nine minutes cover three pages in his book. The notes were made after leaving the room and after reviewing Officer Belanger’s notes. He adopted the latter as accurate and in accord with his recollection. There are 29 lines on each page. There are several lines left blank. Most lines have between two and three words written. There are ten lines with five words. One line has one word.
[48] Officer Belanger’s notes appear to be written in somewhat different fashion after the first utterance of Mr. Mawut. The writing is consistent with his notes being made more quickly as he first writes out the next complete question and then notes the answer. That process continues to the end of the exchange. I am satisfied that the exchanges between Mr. Mawut and the police were completed within nine minutes.
[49] Notwithstanding the antiquated note taking procedure I am satisfied on the available evidence that the Crown has proven the alleged utterances voluntary and admissible.
[50] The Crown must prove voluntariness beyond a reasonable doubt. The defence does not allege any promises, threats or inducements, nor an atmosphere of oppression. The threshold on issues of accuracy and reliability is much lower. The officers have testified they recorded the brief utterances of Mr. Mawut verbatim. There is no evidence he did not make those utterances.
result
[51] The utterances attributed to Mr. Mawut are admissible on the trial. Issues of accuracy, reliability and ultimate weight remain open for further evidence and submissions.
B. P. O’Marra J.
Released: February 25, 2013
COURT FILE NO.: 12-5-0000-409-0000
DATE: 20130225
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SUNDAY MAWUT
Applicant
RULING
B. P. O’Marra J.
Released: February 25, 2013