SUPERIOR COURT OF JUSTICE - ONTARIO

DATE: 20130314

RE: R. v. JOHN UMENWOKE

BEFORE: Justice Spies

COUNSEL:
Robert Wright, for the Crown/Applicant

Pius Okoronkwo, for the Defendant/Respondent

HEARD: March 11, 2013

DECISION ON VOIR DIRE RE VOLUNTARINESS

[1] On April 6, 2010, after a phone call from Det. Entwistle, Mr. Umenwoke turned himself in and was arrested for a charge of fraud over $5,000 by Det. Entwistle at 32 Division of the Toronto Police Service. At the outset of this trial a voir dire was conducted as the Crown sought a ruling as to the admissibility of statements alleged to have been made by Mr. Umenwoke to Det. Entwistle following his arrest, while they were alone together in one of the holding cells of the CIB. These statements were not recorded at the time they were made in any way although audio/video recording facilities were available in another room at the station. Det. Entwistle made notes about his conversation with Mr. Umenwoke immediately after the statements are alleged to have been made.

[2] On March 12, 2013, I advised counsel that I had decided to dismiss the Crown’s application and that I would provide reasons. These are my reasons.

[3] There was no dispute on the applicable law. The evidence from Det. Entwistle as to the statements alleged to have been made by Mr. Umenwoke is not admissible as part of the Crown’s case unless the Crown proves beyond a reasonable doubt that those statements were voluntary. Voluntariness requires that any statement or utterance not be obtained by either fear of prejudice or hope of advantage held out by a person in authority, and that it was the product of an operating mind. The law is clear that in order to decide whether an utterance is voluntary, I must examine and evaluate all the circumstances surrounding the making of the utterance. The relevant factors include but are not limited to threats, promises or inducements, oppression, the operating mind requirement and police trickery. The approach is contextual and the evidence must satisfy me beyond a reasonable doubt of the voluntariness of the utterance in order for the utterance to be admissible.[1]

[4] The sole issue on the voir dire required a determination of a dispute in the evidence between Det. Entwistle and Mr. Umenwoke. Det. Entwistle admitted that when he went into the room to tell Mr. Umenwoke about the allegations and the evidence that he had in support of those allegations, that Mr. Umenwoke repeatedly denied being the person who is alleged to have committed the offence and, in particular, denied that he is Solomon Idiaraba, the name it is alleged he used to commit the fraud. However, although there is an issue as to what exactly Det. Entwistle said about this, there is no dispute that as soon as Det. Entwistle advised Mr. Umenwoke that his girlfriend had also been arrested, Mr. Umenwoke said he would cooperate and he made the statements the Crown seeks to rely on.

[5] Mr. Umenwoke described the close relationship that he has with his girlfriend and her two children and his strong love for her and this evidence was not challenged. He testified that the only reason he “broke down” and decided to make any statements was because Det. Entwistle told him that if he did not cooperate his girlfriend would go to jail. In cross-examination he stated this slightly differently and alleged Det. Entwistle told him that if he did not cooperate and tell him all that he knew his girlfriend would face jail time. Mr. Umenwoke described this as a “big incentive” and he testified that he would not let his girlfriend go to jail given his love for her and at that point he had to tell the Detective what he wanted to hear. He testified that when Det. Entwistle gave him the “offer that she might not go to jail” he opened up and said what he thought would get her out of jail.

[6] This evidence is denied by Det. Entwistle but he admitted that he told Mr. Umenwoke that he had put his girlfriend in jeopardy and that she could face jail time. He testified that in response to this statement Mr. Umenwoke said that he would help the investigation so long as his girlfriend did not go to jail. The Detective testified that he did not respond to this but simply let Mr. Umenwoke talk thereafter.

[7] There is no allegation of any threats or promises made or that Mr. Umenwoke did not have an “operating mind” at the time he made his statements. Mr. Wright fairly admitted, however, that if there is a reasonable doubt as to whether or not Det. Entwistle made the statements alleged by Mr. Umenwoke, that there would be a reasonable doubt as to whether his utterances were voluntary.

[8] There was no cross-application alleging any breach of s. 10 of the Charter brought by Mr. Umenwoke. As I was finalizing my written reasons however, I realized that there may be an issue in this regard. Det. Entwistle testified that when Mr. Umenwoke came to the station he arrested him for fraud and gave him his rights to counsel. Det. Entwistle said that Mr. Umenwoke said that he wanted to speak to a lawyer. Det. Entwistle then gave him the primary caution, explaining that Mr. Umenwoke did not have to say anything but that if he chose to do so it could be used in evidence against him. According to Det. Entwistle, he actually advised Mr. Umenwoke not to make any statement. Although I will not make any finding on this issue given my decision not to admit the statement and given no Charter motion was brought by Mr. Umenwoke, there is no evidence of Det. Entwistle ensuring that Mr. Umenwoke had an opportunity to speak to a lawyer before he went in to speak to him.

[9] There is no dispute that after Mr. Umenwoke was arrested and booked that Det. Entwistle went into the room in the CIB where he was being held and spoke to him alone. Mr. Umenwoke did not recall whether or not the particular statements he is alleged to have made were in fact made by him, save that he admitted he likely said something about his student loan. He did not, however, deny making the statements and in any event what he in fact said to Det. Entwistle would have been an issue for trial if I had granted the Crown’s application.

[10] I agree with Mr. Wright’s submission that this is not a case where the record is presumed suspect as discussed by the Court of Appeal in the decision of R. v. Moore-McFarlane.[2] In that case Justice Charron stated that she was not suggesting that all non-recorded interrogations are inherently suspect (at para. 62) and she held that there is no absolute rule requiring the recording of statements (at para. 64). What she did say was:

…the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that 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. (at para. 65)

[11] I accept the evidence of Det. Entwistle that he did not go in to see Mr. Umenwoke for the purpose of taking a statement or to interrogate him and that his primary purpose was to see if Mr. Umenwoke would give a videotaped statement. However, Det. Entwistle could have and in my view it would have been the preferred practice, to take Mr. Umenwoke directly to a video room. No permission is required to video a defendant as that is done all the time in the booking hall. Had this simple step been taken, all of the discussion would have been recorded and there would be a clear record of exactly what was said. The issue I needed to decide on the voir dire would likely not have arisen.

[12] This type of issue comes up far too frequently in this court when there are, for example, disputes as to whether or not the rights to counsel or cautions were given or, as in this case, a dispute of what was said to a defendant by an officer or what the defendant said to the officer. As a result, very often, valuable court time is spent trying to resolve the issue of what was said which could easily be avoided. This is not the case of a spontaneous utterance by a defendant at the time of arrest which perhaps could not easily be recorded nor was there any urgency in speaking to Mr. Umenwoke.

[13] As the conversation was not recorded, I had to consider the evidence and attempt to determine what was said during this brief meeting. The onus on the Crown is a heavy one. Mr. Wright submitted that I should reject the evidence of Mr. Umenwoke and find that it does not raise a reasonable doubt. He submitted first of all that it was suspect that all Mr. Umenwoke can recall of the discussion is the statement he alleges that was made about his girlfriend that he says induced him to speak. Although it is possible that this is a matter of convenience, I do not accept the Crown’s submission that this evidence cannot be true. Unlike the officer, Mr. Umenwoke had no notes to refer to in order to refresh his memory and he had a reason for remembering the comments he alleges Det. Entwistle made as that is why he says he broke down and began to talk. Although in cross-examination Mr. Umenwoke was repeatedly challenged on his evidence as to what was said, he was very firm about what he alleges was said by the Detective. Although he expressed the alleged statement using different words at different times in his evidence, he was very clear and adamant that he was told that he needed to cooperate and tell the officer what he wanted to hear so that his girlfriend would not go to jail.

[14] Mr. Umenwoke admitted to a memory problem that he has as a result of certain health issues and he has had this problem for some 15 years. Mr. Wright submitted that as a result his evidence is not reliable. I agree that this issue makes Mr. Umenwoke’s evidence potentially less reliable but again as I have said, he seemed quite sure about what Det. Entwistle said about his girlfriend and he was certainly very candid in admitting this memory problem in the first place. He volunteered the information in cross-examination. It appeared that it was not something the Crown knew.

[15] Turning to the evidence of Det. Entwistle, I have difficulty accepting his evidence that he was only expecting a one-way conversation and that he would be doing all the talking. In fact this evidence is at odds with his evidence that when he spoke to Mr. Umenwoke by phone his normal practice would have been not to give him a lot of detail about the charges because if Mr. Umenwoke wanted to say anything to him he did not want to talk to him without having it recorded. Although Det. Entwistle wanted to see if Mr. Umenwoke would make a statement he also stated in his evidence that he wanted to see if Mr. Umenwoke would acknowledge or make any comments with respect to the allegations. He also said that he did not want to get into any “depth” without recording the conversation. Furthermore, clearly the only reason Det. Entwistle would have had to tell Mr. Umenwoke about his girlfriend’s arrest was to persuade him to cooperate. Otherwise this information had nothing to do with his case or the allegations he was facing.

[16] This evidence suggests that Det. Entwistle was expecting that at least there might be some comments made by Mr. Umenwoke about the allegations or the evidence as he set it out for him.

[17] In my view it would have been unreasonable for Det. Entwistle to expect that Mr. Umenwoke would sit there mute and say nothing in response to the statements he was making about the charges and the case, particularly without strong advice from him to Mr. Umenwoke that he should not comment on what he was telling him. Although Det. Entwistle may have given that advice at the time of booking, clearly that is not what Mr. Umenwoke was doing as Det. Entwistle was speaking to him. Det. Entwistle admitted that Mr. Umenwoke repeatedly said in response to his statements about the allegations and the evidence that he was not Solomon Idiaraba. He was not sitting mute listening to Det. Entwistle. Furthermore, there was no evidence that during the time Det. Entwistle was with Mr. Umenwoke in the CIB room that Det. Entwistle told Mr. Umenwoke, for example, that he was not there to take a statement, that he was only there to tell Mr. Umenwoke what the allegations and evidence were and that he did not want him to comment on them or that he only intended to see if Mr. Umenwoke wanted to make a statement on video.

[18] In my view without giving these types of instructions at the outset it would be reasonable to expect that Mr. Umenwoke might make some utterances, which he was in fact doing. In fact, when he did start to really talk, after reference was made to his girlfriend, Det. Entwistle made no effort to stop him. Furthermore, when Mr. Umenwoke said that he would help the investigation so long as his girlfriend did not go to jail, Det. Entwistle did not tell him that even if he cooperated that he could not guarantee that his girlfriend would not go to jail. Instead he sat silently and let Mr. Umenwoke make the statements the Crown seeks to rely upon. It was only once Mr. Umenwoke finished speaking that Det. Entwistle asked him if he would go on video. He testified that Mr. Umenwoke said he would when he returned with his passport but never did.

[19] Despite these concerns about Det. Entwistle’s evidence, I have no reason on the face of his evidence to find he was not being truthful as to what he said about Mr. Umenwoke’s girlfriend. However, this is not a credibility contest. It would not be enough to only prefer the evidence of Det. Entwistle. I must consider whether or not the Crown has satisfied me beyond a reasonable doubt on all the evidence that no inducement was made and the statements were made by Mr. Umenwoke voluntarily.

[20] After considering all of the evidence and the submissions of counsel, I found that I was not able to determine exactly what was said by Det. Entwistle given the competing versions and the absence of even an audio record. I found that the evidence of Mr. Umenwoke, which is corroborated by the timing of his statements to Det. Entwistle and the comment he made immediately afterwards, raised a reasonable doubt as to the voluntariness of those statements. There is at least a possibility that Det. Entwistle said something to Mr. Umenwoke along the lines that Mr. Umenwoke recalls that reasonably caused him to believe that he needed to cooperate in order to ensure his girlfriend did not go to jail. Clearly the information from Det. Entwistle about his girlfriend was the trigger; there is no dispute that before the girlfriend was mentioned that Mr. Umenwoke repeatedly denied any involvement in the offence and that immediately after he was told of her arrest that he said he would cooperate and he began to talk. Furthermore Det. Entwistle did not respond to his statement that clearly suggested that he believed he could keep her out of jail by cooperating.

[21] For these reasons I was not satisfied beyond a reasonable doubt that the alleged statements were made voluntarily. Accordingly, the evidence of Det. Entwistle concerning these alleged statements is not admissible in the trial as part of the Crown’s case.

SPIES J.

Date: March 14, 2013

[^1]: R. v. Oickle, 2002 SCC 29, [2002] 2 S.C.R. 3.

[^2]: (2001), 2001 6363 (ON CA), 160 C.C.C. (3d) 493.