COURT FILE NO.: 11-10000474-0000
DATE: 20130219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JOHN BOUKHALFA
John Cisorio and Jennifer Armstrong for the Crown
John Rosen and Christine Roth, for John Boukhalfa
HEARD: February 4, 5, 6, 7, 8, 11, 12 & 14, 2013
M. Forestell J.
RULING ON THE ADMISSIBILITY OF STATEMENTS OF THE ACCUSED
Background
[1] The accused, John Boukhalfa is charged with second degree murder in the December 2009 stabbing death of his mother, Antonia Zammit, in their apartment in Toronto.
[2] Mr. Boukhalfa has pleaded not guilty to the charge and his trial commenced before me on February 4, 2013.
Nature of the Application
[3] Mr. Boukhalfa made a series of utterances to the police before and after his arrest just before midnight on December 13, 2009. Uniformed officers initially questioned him when they noticed him walking in a grassy median near traffic. After a short interaction, they noticed that he had blood on his coat and hand. He gave a false name and address to the police and said that he had been in a fight the night before. He was arrested for failing to comply with the terms of a conditional sentence order. He was cautioned, informed of his right to counsel and taken to the police station. He understood his right to counsel and indicated a desire to exercise that right.
[4] Counsel for Mr. Boukhalfa conceded in argument that the initial utterances to the uniformed officers were voluntary. I agree. I am satisfied beyond a reasonable doubt, on the evidence of police constables Keegan and Salihu, that the utterances made by Mr. Boukhalfa at the roadside were voluntary and are admissible. The questions by the officers contained no threats or inducements. There was a legitimate reason for the officers to be concerned about Mr. Boukhalfa and to question him.
[5] The next utterances made by Mr. Boukhalfa were made to Detective Stephen Ruffino. Mr. Boukhalfa made the utterances over a three-hour period from about midnight to 3:00 a.m. on December 14, 2009 when he was detained at the police station. He was not given an opportunity to consult counsel. The Crown does not apply to introduce these utterances.
[6] Just before 7:00 p.m. on December 14, 2009, homicide Detectives Code and Louhikari commenced a videotaped interview of Mr. Boukhalfa. The interview lasted over three hours. The Crown applies to introduce this statement. Mr. Boukhalfa submits that the Crown has not proven voluntariness and that the statement should not be admitted.
Evidence
[7] The Crown called the two uniformed officers who first spoke to Mr. Boukhalfa, Officers Keegan and Salihu, as witnesses. The Crown also called all of the police officers who dealt with Mr. Boukhalfa at the police station: the booking Sergeant, Officer Nicolle; the two constables who were assigned as bookers at the police station during Mr. Boukhalfa’s detention at the station, Officers Ma and Graham; the forensic identification officers who photographed and swabbed the hands of Mr. Boukhalfa, Officers Langille and Caputo; the detective in charge of the investigation before it was determined to be a homicide, Detective Ruffino; and the two homicide officers who took over the investigation and interviewed Mr. Boukhalfa on video, Detectives Code and Louhikari. The booking video was filed as an exhibit, as was the audio recording of Mr. Boukhalfa’s arrest, the audio recording of the conversation when Mr. Boukhalfa was moved to the interview room, photographs of the injuries to Mr. Boukhalfa’s hand and the video of the final interview of Mr. Boukhalfa by Officers Code and Louhikari.
[8] As noted above, Mr. Boukhalfa was questioned by uniformed officers when they noticed that he was wandering haphazardly on a grassy median near a busy roadway at 11:30 p.m. After a short interaction, the officers noticed that he had blood on his coat and on his hand. They asked his name and address and received a false name and address. One of the officers then asked Mr. Boukhalfa to empty his pockets, which were bulging. Mr. Boukhalfa removed identification showing his real name as well as an envelope that had a large amount of cash and was bloodstained.
[9] The officers discovered that Mr. Boukhalfa was subject to a conditional sentence order and was in breach of his curfew condition. They arrested him for that offence, cautioned him and advised him of his right to counsel. He indicated that he understood the caution and rights and indicated that he would like to call a lawyer. He was handcuffed and placed in the police cruiser.
[10] Upon arrival at the police station around midnight, Mr. Boukhalfa was taken before the booking sergeant. He did not answer questions put to him during the booking process. While the injuries to Mr. Boukhalfa’s left hand were noticed during the booking, they did not appear serious enough to warrant medical attention.
[11] Mr. Boukhalfa was placed in an interview room and was strip-searched a few minutes later. The officers noticed that he had injuries to his left hand and that he had scratches on his stomach. His coat, sweater, belt, shoelaces and two necklaces were seized.
[12] After the initial search and seizure of clothing, the officers returned and seized the rest of Mr. Boukhalfa’s clothing except for the two pairs of shorts and underwear that he was wearing under his jeans. He was given a “biohazard” suit to wear.
[13] Detective Ruffino spoke to Mr. Boukhalfa a number of times over the next three hours. He attempted to discover the source of the blood and to determine whether the money in the possession of Mr. Boukhalfa was stolen.
[14] During one of the interactions, in discussing the cut to Mr. Boukhalfa’s hand, Detective Ruffino asked him if he wanted to get a stitch in it.
[15] Detective Ruffino sent officers to check Mr. Boukhalfa’s residence. When the officers were unable to gain access, Detective Ruffino took a set of keys from Mr. Boukhalfa’s personal belongings and asked Mr. Boukhalfa which key was the key to the apartment. Detective Ruffino told Mr. Boukhalfa that officers were going into the apartment.
[16] When the officers entered the apartment, they found the body of Mr. Boukhalfa’s mother, Antonia Zammit. She appeared to have been stabbed multiple times.
[17] Detective Ruffino notified the police duty desk so that the on-call homicide detectives could take over the investigation. Detective Ruffino received instructions from Detective Sergeant Code to arrest and caution Mr. Boukhalfa and to audio-record the arrest and caution. He did so at 3:45 a.m. When he placed Mr. Boukhalfa under arrest, he told him that he was under arrest for murder, but did not say whether he was under arrest for first or second degree murder. He did not tell Mr. Boukhalfa who he was alleged to have killed.
[18] Detective Ruffino read him the primary and secondary cautions and advised him of his right to counsel. Mr. Boukhalfa gave Detective Ruffino the name of a law firm to contact. Detective Ruffino left a message with the law firm and contacted duty counsel for Mr. Boukhalfa. Duty counsel called back and spoke to Mr. Boukhalfa for ten minutes. A lawyer who had taken over the practice of the law firm eventually called back and advised that the firm no longer did criminal work. The lawyer undertook to contact someone who might know of Mr. Boukhalfa. Sometime later, a criminal lawyer called and spoke to Mr. Boukhalfa, again for about ten minutes.
[19] At 4:45 a.m., Police Constables Caputo and Langille photographed and swabbed the hands of Mr. Boukhalfa. Other than providing information and instructions about the process, they had no conversation with Mr. Boukhalfa.
[20] At 5:10 p.m., Detective Sgt. Code introduced himself to Mr. Boukhalfa and delivered Mr. Boukhalfa’s dinner to him. This interaction was audiotaped. Officer Code confirmed that Mr. Boukhalfa had spoken to counsel and acknowledged that Mr. Boukhlafa had indicated that he did not want to say anything. He reiterated that Mr. Boukhlafa did not have to say anything.
[21] Just before 7:00 p.m., Mr. Boukhlafa was taken by Detectives Code and Louhikari to a room equipped with video equipment to be interviewed. The videotaped interview lasted from 6:57 p.m. until 10:14 p.m.
[22] Detective Sergeant Code questioned Mr. Boukhalfa for the first part of the interview. Detective Louhikari questioned him for the last part of the interview. During much of the interview, the detectives spoke to Mr. Boukhalfa without receiving any response. The focus of the questions posed by the detectives was the motive for the killing. Mr. Boukhalfa was repeatedly asked why he harmed his mother. Both detectives represented to Mr. Boukhalfa that his father wanted to know why he had done this, what had “pushed him over”. Detective Code said that he had spoken at length to Mr. Boukhalfa’s father and that his father wanted to know why his son had done this. This was not true. Officers had spoken to Mr. Boukhalfa’s father, but Detectives Code and Louhikari had not spoken to him. Both detectives appealed to Mr. Boukhalfa’s conscience and moral values in their questioning. They suggested that his father would feel better if he told them why he had harmed his mother. Detective Louhikari suggested that Mr. Boukhalfa would need to deal with his issues with his mother in order to have a healthy relationship in the future.
[23] When Detective Code questioned Mr. Boukhalfa, he suggested that pressures and stress may have played a role. Mr. Boukhalfa eventually agreed that stresses, including school and exams had affected him. He also said that his mother had dressed him as a girl as a child and had given him bad food that made him fat.
[24] Mr. Boukhalfa questioned Detective Louhikari about the seriousness of the charge and asked if it was worse than “killing some random dude”. Detective Louhikari said that all killing was wrong but that killing one’s mother was “severe”. She stressed that the “why” was important, that it could make a difference. Mr. Boukhalfa then said, “there’s not too many ways you can spin this one”. At this point, Detective Louhikari, picking up on the “spin” theme introduced by Mr. Boukhalfa, had the following exchange with Mr. Boukhalfa:
LOUHIKARI: Uh, no. You’re wrong. You’re wrong. There’s several ways you can spin this one. You’re wrong. And if we thought that, buddy, we’d be having dinner long ago. Really. We would be.
BOUKHALFA: Hmm, mmm.
LOUHIKARI: We’d be in a restaurant having dinner, having a coffee and unwinding after a very long intense day. But there are different ways that you can spin this. And how it came to be makes the world of difference. The world.
BOUKHALFA: Hmm, mmm.
LOUHIKARI: And the courts will see it differently. And believe me when I tell you that. Forensic evidence speaks for itself. They – it doesn’t need you to say anything.
BOUKHALFA: Hmm, mmm.
LOUHIKARI: Nothing. We get our forensic guys up on the stand. They say we found this, we found this, we found this, we found her blood on him. On his coat, on his hands. Neighbours said this, videos show this. We didn’t even need you. We need you to sit there and listen. Right? But that’s kind of not fair. The person who it’s gonna (sic) affect the most doesn’t get a chance to say his 2 cents worth. Right? To say, ‘Hey, this happened but, excuse me, let me tell you what I was going through and what pushed me to that point.’ And it is considered. It is considered, John. [Emphasis added.]
[25] Following the comments of Detective Louhikari about the benefits of “spinning”, Mr. Boukhalfa said that the pressure of exams, and smoking and drinking contributed to his actions. Detective Louhikari went on to emphasize that the police would investigate what he told them “for his benefit” (emphasis added). Mr. Boukhalfa then said that his mother had been dating someone that he did not like and spoke of fighting over “stupid shit”. He said that his mother tried to “push all this Jesus stuff down [his] throat”. He also spoke of the bad weather being a factor and feeling “pissed off at the world”.
[26] When Mr. Boukhalfa asked why the officers needed this information, Detective Louhikari said that it was to show the whole story to the courts. When Mr. Boukhalfa asked, “So isn’t that between me and my lawyer?”, the following exchange ensued:
LOUHIKARI: Uh, well John, the truth of the matter is your lawyer doesn’t investigate your side of the story. We investigate your side of the story.
BOUKHALFA: Hmm, mmm.
LOUHIKARI: And if it’s not investigated, it won’t get investigated. So this is where we make the decision at what else we’re gonna (sic) look at. And that’s why we decided to talk to you to see what is this guy’s side of the story.
BOUKHALFA: Okay.
LOUHIKARI: Can we back it up.
BOUKHALFA: Yeah? Okay. I kind of see what you’re getting at.
LOUHIKARI: 'Cause (sic) once you go before the courts, that’s it. We’re not gonna (sic) go anywhere near you again and whatever we do is all that there is. Right? ---
BOUKHALFA: --- Hmm, mmm. ---
LOUHIKARI: --- And that’s what I’m saying. Like, forensics are good for sure. I’m not ---
BOUKHALFA: --- Hmm, mmm. ---
LOUHIKARI: --- gonna (sic) lie. But there’s another element here, right?
BOUKHALFA: Hmm, mmm.
LOUHIKARI: And that’s the human element. And it wouldn’t be fair in this kind of a situation. With this kind of relationship. Son and mother.
BOUKHALFA: Hmm, mmm.
LOUHIKARI: Not to explain the human element, right?
BOUKHALFA: Hmmm. What do you mean, the human element though?
LOUHIKARI: The human element?
BOUKHALFA: Well, the human element to the story though?
LOUHIKARI: Yeah. That’s what I mean.
BOUKHALFA: In relation to what though? What’s the point of ---
LOUHIKARI: --- In relation ---
BOUKHALFA: --- all this? ---
LOUHIKARI: --- to you and your mother. And why it happened that day?
BOUKHALFA: Why’s it matter to a hom – a homicide detective? Who you guys telling to? Like what is the point?
LOUHIKARI: The courts. We’re telling it to the courts.
BOUKHALFA: So you guys are bringing your case to the court and then my lawyers have to bring the other case to the court. ---
LOUHIKARI: --- No, no ---
BOUKHALFA: --- So I’m ---
LOUHIKARI: --- That’s not our case ---
BOUKHALFA: --- not talking to you guys ---
LOUHIKARI: --- No, no. It’s not our case, John. You’re ---
BOUKHALFA: --- Okay. ---
LOUHIKARI: ---- mistaken there. We’re bringing the case to the court with all the evidence.
BOUKHALFA: Hmm, mmm.
LOUHIKARI: Whether it be against you or for you. All ---
BOUKHALFA: ---- Hmm, mmm. ---
LOUHIKARI: --- of it has to go forward. Right? ---
BOUKHALFA: --- Okay.
LOUHIKARI: We’re objective. We’re ---
BOUKHALFA: --- Hmm, mmm. ---
LOUHIKARI: --- objective. Right? We’re supposed to represent the community. The citizens. And we’re supposed to bring the whole truth forward, not just a little bit of the truth. Right? ---
BOUKHALFA: --- Hmm, mmm. ---
LOUHIKARI: ---- So we can bring all the forensics. That’s what you want? Prish! Good to go. Because you know what? That’s the end of the day for us and we get to go home. We get to go for dinner, we get to do whatever we want. And we don’t have to sit here and continue to work. Right? But – but to be fair we need to give you an opportunity to explain, how could this happen? We have to be fair, right. [Emphasis added.]
[27] Mr. Boukhalfa then spoke further about his motivation.
[28] Detective Louhikari testified that she had no intention of undermining Mr. Boukhalfa’s confidence in his lawyer and the advice he had been given. She testified that she had expressed herself badly and meant to convey that the police could investigate what Mr. Boukhalfa said at that time. I accept Detective Louhikari’s evidence as to her intention. I do not find that there was any bad faith or intentional denigration of counsel. This interview was conducted from 7:00 p.m. to just after 10:00 p.m., after the officers had been working for 16 hours, having been called in at 3:30 a.m. However, regardless of Detective Louhikari’s intention, the message conveyed to Mr. Boukhalfa was that this was his only opportunity to have mitigating circumstances investigated and that “spin” was critical. Mr. Boukhalfa then made statements about his motivation for killing his mother.
Positions of the Parties
[29] The Crown takes the position that all of the statements of Mr. Boukhalfa to Detectives Code and Louhikari were voluntary. There were no threats or inducements. There was no oppression. Mr. Boukhalfa clearly had an operating mind. The Crown submits that the inaccurate statement by Detective Louhikari about the role of counsel had no causal relationship with the ensuing utterances of the accused.
[30] Mr. Boukhalfa argues that the Crown has failed to prove beyond a reasonable doubt that the statement to Detectives Code and Louhikari was voluntary. The cumulative effect of inadequate information about the charges, lack of medical attention and the use of stratagem, including references to Mr. Boukhalfa’s father and his need to know why Mr. Boukhalfa killed his mother, overbore the will of Mr. Boukhalfa. Mr. Boukhalfa submits that the reference to a benefit from placing a “spin” on the story was an inducement. Mr. Boukhalfa submits that the inducement of a benefit from the “spin” compounded by undermining the role of counsel and considered in the context of the preceding interactions should raise a reasonable doubt as to the voluntariness of the statement.
Analysis
General Principles
[31] The onus is on the Crown to prove voluntariness beyond a reasonable doubt. There is no dispute about the legal principles that I must apply in determining whether the Crown has met its onus. Those principles are set out by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47 to 71. The analysis of voluntariness is contextual. All of the circumstances surrounding the statement must be taken into account. The factors to be considered are those that impact either on the reliability of the statement or on the fairness to the accused and the integrity of the administration of justice. Factors such as threats, inducements, oppressive conditions or the absence of an operating mind are viewed as affecting reliability. The consideration of police trickery in the voluntariness analysis is directed at maintaining the integrity of the criminal justice system.
Threats and Inducements
[32] Threats or inducements, or “fear of prejudice” or “hope of advantage”, remain at the core of the confessions rule. As defined by Iacobucci J. in Oickle, at para. 49, “The classic ‘hope of advantage’ is the prospect of leniency from the courts.”
[33] However, the Court in Oickle was careful to warn that the police often offer some kind of inducement to obtain a confession and that appeals to conscience or morality do not render a confession inadmissible. At para. 57, Iacobucci J. stated that inducements, such as “it would be better” comments by police, do not lead to exclusion unless “the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.”
Oppression
[34] In considering oppression, the Court in Oickle said, at para. 60, “Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.”
[35] While Oickle referred to the denial of access to counsel as a factor in the assessment of oppression, in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 46, the Supreme Court of Canada reaffirmed the principle in R. v. Hebert, [1990] 2 S.C.R. 151, at p. 184, that the right to silence does not prohibit the police from continuing to question the detainee in the absence of counsel.
Operating Mind
[36] The threshold for an operating mind is low. There is no issue on the facts of this case that Mr. Boukhalfa had an operating mind at the time of the statement. While he appeared distracted or disinterested at times, he did not appear to be unable to understand the questions, the charges or his right to silence.
Police Trickery
[37] In Oickle, at para. 67, the Court held that the distinct inquiry into the existence of police trickery that would “shock the community” is not rendered redundant by the nature of the threats, inducements and oppression inquiry. There may be situations where the trickery did not violate the right to silence or undermine voluntariness but is so appalling that it would shock the community. This distinct inquiry does not arise in the instant case. To the extent that there were “tricks” employed by the police, they did not rise to the level of trickery that would shock the community. The stratagems and their effect fall to be considered under the general analysis of threats, inducements and oppression.
Application of the Principles in this Case
[38] The interview of Mr. Boukhalfa was a lengthy one that commenced about 19 hours after he had been arrested.
[39] He was slightly injured at the time. I accept that his injuries were not serious and did not appear to merit medical attention. I also find that Mr. Boukhalfa did not ever request medical attention. I do not find that the injuries to Mr. Boukhalfa’s hand caused him any serious discomfort or contributed in any way to creating an oppressive atmosphere.
[40] It was argued that Mr. Boukhalfa was not adequately informed of the reason for his arrest because he was not originally told the identity of the victim and he was not told if he was charged with first degree or second degree murder. I do not find that this was a factor in the statement. Mr. Boukhalfa was clearly told by Detective Sergeant Code that he was charged with second degree murder. He could not help but know that the deceased was his mother in light of the fact that he was charged after the police had, to his knowledge, gone to the home he shared with his mother, and in light of the focus of the questioning in the interview.
[41] During the interview, Detective Sergeant Code repeatedly sought an explanation from Mr. Boukhalfa to convey to Mr. Boukhalfa’s father. I do not find that this was a threat or inducement. Detective Sergeant Code used Mr. Boukhalfa’s father as a means of appealing to the conscience and moral values of Mr. Boukhalfa. There was no impropriety in so doing.
[42] Detective Sergeant Code also referred to the interview as a favour to Mr. Boukhalfa’s father and to Mr. Boukhalfa. The underlying message in the interview was that the interview was for the benefit of Mr. Boukhalfa. This message can be seen in the portion of the interview set out above, when Detective Louhikari was questioning Mr. Boukhalfa.
[43] While not every inducement will render a statement involuntary, the inducement to “spin” the story crossed the line from permissible inducement to the type of inducement that overbears the will of the detainee and risks a false statement. The danger introduced with the comments of Detective Louhikariu about “spinning” the story because it will make a “world of difference” when taken to the courts by the police was compounded when Detective Louhikari told Mr. Boukhalfa that his lawyer would not investigate his side of things and that this was his only chance to have his version investigated.
[44] I must, in determining voluntariness, take a contextual approach. The comments by Detective Louhikari came after two hours of questioning and 19 hours of detention. They came after Mr. Boukhalfa had been told unequivocally that he would not be allowed to speak to a lawyer. This was not improper. However, the subsequent remarks by Detective Louhikari must be assessed in the context of the interview as a whole to that point. It is the combination of the length of questioning, the urging to “spin” the story and the undermining of the role of Mr. Boukhalfa’s counsel that lead me to conclude that the questioning crossed the line and the statement became involuntary.
[45] I find that the line was crossed when Detective Louhikari made the comment at p. 149 of the transcript about ways to “spin” the story. I appreciate that the “spin” terminology came from Mr. Boukhalfa. However, the concept was adopted by Detective Louhikari and the message was delivered to Mr. Boukhalfa that some stories were better than others, would produce a better result for him and must be given to the police because his lawyer would not be able to investigate and bring the story to court with the same result. This raises a reasonable doubt in my mind as to the voluntariness of the statement from the point of Detective Louhikari’s “spin” comment on p. 149 of the transcript to the end of the interview. The statement past this point is inadmissible.
[46] I am satisfied that the statement to that point was voluntary. The police did not, before the discussion on p. 149, introduce a quid pro quo. The police officers appealed to Mr. Boukhalfa’s conscience and made only general reference to an undefined advantage to be gained in telling them why he did it. The tone of the interview was respectful and polite. Mr. Boukhalfa did not appear happy to be in the interview, but he did not appear mentally or physically uncomfortable. He had spoken to two lawyers and was aware of the charge.
Editing
[47] I indicated when I gave my oral decision on voluntariness that I needed further submissions from counsel on the appropriate editing of the statement. I was not certain that the portions of the statement preceding the comment on p. 149 had sufficient probative value and that the discussion leading up to the comment could be easily separated from the portion of the statement that crossed the line and became involuntary. I also sought submissions, in accordance with the principles enunciated by Clark J. in R. v. Hamadeh, 2011 ONSC 1241, [2011] O.J. No. 819, at para. 90, on whether there was any part of the involuntary portion of the statement that Mr. Boukhalfa sought to have admitted as exculpatory.
[48] Both counsel agree that the portion of the statement referring to Mr. Boukhalfa being in trouble with the law previously should be redacted. This appears at p. 145 of the transcript. I agree with the position of both counsel and that portion should be removed from the DVD and the transcript.
[49] Counsel for Mr. Boukhalfa took the position that the portion of the interview conducted by Detective Louhikari should be excluded in its entirety. He argued that while two or three utterances of Mr. Boukhlafa had some limited probative value, the probative value was outweighed by the potential for prejudice.
[50] The prejudice is said to arise from the following: (1) the silence of Mr. Boukhalfa in response to many of the questions; (2) the suggestion by Detective Louhikari that Mr. Boukhalfa was lying and “being ridiculous” or has issues about his mother that will cause women to be afraid of him; and (3) the reference by Mr. Boukhalfa to the “killing of some random dude”.
[51] The reference to the killing of a “random dude” is argued to be a reference back to the inadmissible conversation between Mr. Boukhalfa and Detective Ruffino. The suggestion that Mr. Boukhalfa was lying, “being ridiculous” or that women would be afraid of him is argued to be prejudicial bad character evidence.
[52] The Crown takes the position that the entirety of the interview up to the portion that was ruled inadmissible should go before the jury with the exception of the portion referred to above that mentions Mr. Boukhalfa’s prior contact with the law. The content is relevant and probative and the portions that are not directly relevant provide context. The interview DVD also shows Mr. Boukhalfa using his right hand. Whether Mr. Boukhalfa is right or left-handed is relevant in light of the location of his injuries.
[53] A summary of the law with respect to the editing of statements is found in R. v. Grewall, 2000 BCSC 1451, [2000] B.C.J. No. 2386, at para. 36:
(1) Editing of a statement may at times be necessary because of the inclusion of irrelevant or unnecessarily prejudicial evidence but such editing must not affect the tenor of a relevant statement;
(2) Edited statements must be free from unnecessary prejudice, but the remaining portions must retain their proper meaning;
(3) The jury should have as much as possible of a statement said to constitute an admission in order to place it into context for the purpose of determining its truth;
(4) Even though substantively irrelevant, contextual evidentiary relevance may allow admission; and
(5) The extent of the admissibility of that contextual evidence and probative value must still, however, be weighed and balanced against its prejudicial effect. [Citations omitted.]
[54] I have considered the probative value and potential prejudice of the 28 pages of the transcript leading up to the involuntary portion of the interview (pp. 120 to 148).
[55] I am not of the view that the statements by Detective Louhikari to Mr. Boukhalfa that he was lying, being ridiculous or playing games are prejudicial or constitute bad character evidence. Viewed in the context of Mr. Boukhalfa’s conduct and responses at the time, the comments are reasonable and moderate. The suggestion that Mr. Boukhalfa deal with his issues regarding his mother so that he does not have issues that interfere with his relationships in the future does not suggest that he has had any issues in relationships and is not bad character evidence. The reference to the killing of a “random dude” is not prejudicial. There was reference to the killing of another person in the portion of the interview conducted by Detective Sergeant Code. The silence of Mr. Boukhalfa in response to questions cannot be used by the jury to draw any inferences against him. The jury will need to be instructed to this effect as a result of the silence in response to questions in the voluntary portion of the interview in any event.
[56] There is probative value to the responses of Mr. Boukhalfa up to p. 149. He said that he did not know that his mother was dead; he discussed his injuries; he said that he did not remember how he got blood on his coat; he used his right hand when he was given Detective Louhikari’s pen; he asked if the killing of his mother was a “better story” than killing “some random dude”; and he stated that “there’s not too many ways you can spin this one”. The probative parts of the interview are accompanied by pages of questions with no response or tangential conversation. These portions cannot be separated from the probative portions without sacrificing the context necessary for the jury to assess the truth of the statement and the state of mind of Mr. Boukhalfa when he made the statement.
[57] Therefore, I have concluded that the entirety of the interview up to the comment on p. 149 of the transcript is admissible, with the exception of the passage at p. 145 that refers to Mr. Boukhalfa being in trouble with the law.
[58] I intend to instruct the jury by way of a mid-trial instruction that they are not to use Mr. Boukhalfa’s silence against him. I will also instruct the jury that the statement has been edited as it is very long and irrelevant portions have been removed. I would also propose to instruct that that they should not draw any inferences from Mr. Boukhalfa’s exercise of his right to counsel, referred to in the statement and referred to by the arresting officers and Detective Ruffino.
M. Forestell J.
Released: February 19, 2013
COURT FILE NO.: 11-10000474-0000
DATE: 20130219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
John boukhalfa
RULING ON
THE ADMISSIBILITY OF STATEMENTS
OF THE ACCUSED
M. Forestell J.
Released: February 19, 2013