ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F) 1971/12
DATE: 20130705
B E T W E E N:
HER MAJESTY THE QUEEN
M. Park, for the Crown
Applicant
- and -
MOHAMED REZA KHAN
J. Bogle, for the Defence
Respondent
HEARD: June 4, 5, 2013
RULING RE: VIDEOTAPED STATEMENT OF REZA KHAN
Mossip
Background
[1] Reza Khan is charged with possession of cocaine for the purpose of trafficking and importing a controlled substance, namely cocaine, into Canada. These events occurred between August 22, 2011 and September 1, 2011
[2] On August 22, 2011 the Canada border services agency seized a Canada Post package which, upon inspection, they discovered containing 1.85 kg of cocaine. This package was allegedly mailed by Rawle David from Guyana, to Javed Ali at 4 Cranberry Drive, Scarborough, Ontario. Javed Ali is the cousin of the defendant Reza Khan.
[3] On August 30, 2011 an authorization for a general warrant was signed which allowed the police to enter and secure the residence at 4 Cranberry Drive. On September 1, 2011 this general warrant was executed. Javed Ali and his mother were arrested for conspiracy to import a controlled substance. They were released without charges several hours after their initial arrest. Another cousin Saif Ali was observed by the police to be texting while the officers were at 4 Cranberry Drive. When the officers subsequently went to Reza Khan’s autobody shop they ascertained that he had received some messages and after which he left the business premises. The officers determined that Saif Ali had sent a text to Mr. Reza Khan as to the police presence at his home. The officers returned to 4 Cranberry Drive and arrested Saif Ali for obstruction of justice. He was later released without charges.
[4] On September 1, 2011 Constable Buchner placed a telephone call to Reza Khan and requested that he attend at the RCMP offices for an interview. Mr. Khan attended with his girlfriend, his uncle, and his cousin Rameez Khan. Mr. Reza Khan went into the police detachment and was placed under arrest by Constable Buchner. The family remained outside in the parking lot in or about the car. Mr. Khan came into the police station. Prior to Reza Khan going into the police detachment he gave his two cell phones and wallet to his uncle, who also remained in the parking lot.
[5] Constable Buchner and Constable Johnston interviewed Reza Khan on September 1, 2011. Two interviews were conducted, one right after the other. The first interview was not properly recorded and lasted approximately one hour. The second interview took place immediately afterwards and was recorded
[6] The Crown seeks a ruling that the videotaped statement of Mr. Reza Khan was given voluntarily and may be used at this trial by the Crown, if appropriate, during the cross-examination of Mr. Khan if he testifies. The defence resists this application, and seeks a ruling that the statement was not given voluntarily.
Issue to be Decided
[7] The sole issue to be decided by me on this hearing is whether I am satisfied beyond a reasonable doubt that the videotape statement of Reza Khan given to the police on September 1, 2011 was voluntary, as defined by the jurisprudence in this area.
Applicable Law
[8] The seminal case from the Supreme Court of Canada on the issue of voluntariness, is R. v. Oikle (1999), 2000 SCC 38, 147 C.C.C. (3d) 321. However, a much earlier English Privy Council case, namely Ibrahim v. The King, [1914] A.C. 599 sets out the traditional formulation of the common law confessions rule, and from which the modern rule was derived.
[9] In a lengthy and extensive ruling by Mr. Justice Watt, when he sat as a trial judge, R. v. Roy, [2002] O.J. No. 5541 dated October 22, 2002, upheld on appeal at R. v. Roy, 2003 4272 (ON CA), 180 C.C.C. (3d) 298, Justice Watt, starting at paragraph 228, wrote as follows:
228 The focus of the traditional rule is on reliability. The trier of fact, especially a jury, is likely to attach significant weight to a statement made by an accused to a person in authority, particularly if the statement is partially or wholly inculpatory. Who would make such a statement unless it were true? To ensure this reliance is not misplaced, to minimize the risk of improper conviction, we insist that the statement be reliable. Statements obtained by fear of prejudice or hope of advantage exercised or held out by persons in authority may not be reliable, so we keep them out to prevent misuse that may lead to improper conviction.
229 The confessions rule, more specifically the voluntariness requirement, also has another objective: it seeks to maintain the integrity of the criminal justice system. Persons accused of crime must be treated fairly by their investigators, left free to choose whether to speak to those who want to question them, or to say nothing. An accused is not to be conscripted to provide evidence against him or herself. See, R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, 173, 57 C.C.C. (3d) 1, 32 per McLachlin J.
230 These dual rationalia, reliability and maintenance of the integrity of the criminal justice system, inform the content of the voluntariness test, thereby the reach of the admissibility rule.
[10] Justice Watt, at paragraphs 231 to 238, of Roy, succinctly set out the development of the jurisprudence which has led to the current confessions rule (See R. v. Horwath, 1979 16 (SCC), [1979] 2 S.C.R. 376, 44 C.C.C. (2d) 385 at 412) and R. v. Herbert, 1979 14 (SCC), [1979] 2 S.C.R. 30, 44 C.C.C. (2d) 498, at 506 in particular.
[11] Justice Watt concluded this analysis and wrote as follows:
235 The modern confessions rule covers more ground than its predecessor epitomized by the Ibrahim formula excerpted earlier. The concern of the modern rule is with voluntariness, in the normal, natural, everyday sense of the term. As Wigmore suggests, voluntariness is "shorthand for a complex of values". See, III Wigmore on Evidence (Chadbourn Rev.) s. 826, page 351.
236 The application of the confessions rule is, as it must be, contextual. Each case is different. There are no hard and fast rules. There are simply too many variables. Each relevant factor merits separate consideration. Yet the true picture emerges only when the cumulative effect of these myriad factors is held up against the standard of proof required to establish voluntariness.
237 The primary concern of some factors, such as oppression, is with reliability. Others, like awareness of the consequences, focus on a person's right to choose and the fairness and integrity of the criminal justice process. What is essential is an understanding of the circumstances in which the statements were made, and an assessment whether the cumulative force of those circumstances raises a reasonable doubt about voluntariness.
[12] The thrust of the defence argument is that I should not be satisfied beyond reasonable doubt that the statement of Reza Khan is voluntary because of the statements made by the police officers to Mr. Khan with respect to his family; that is really the sole argument of the defence. The defence does not suggest there were threats or violence by the police against Reza Khan. The thrust of the argument is that the statements by the police officers as to the trouble that Reza Khan's family were in as a result of the actions of Reza Khan, improperly induced him to speak to the police on September 1, 2011.
[13] The position of the Crown is that the statement of Reza Khan to the police was voluntary and I should be satisfied beyond a reasonable doubt that it was. Any statements made by the police with respect to Reza Khan's family did not amount to an inducement that would render his statement involuntary.
Analysis
[14] As set out in the decision of Oickle the application of the confessions rule will by necessity be contextual. The court went on to say:
Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be over – and under – inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.
[15] The classic police conduct that is sought to be prohibited by this rule, as it applies to the defence argument before me, is that a person in authority cannot suggest to an accused person that if the person confesses, or in fact speaks to the police generally, that they will receive a reduced charge or a reduced sentence. Further the benefit from the promise does not have to directly affect the accused, but can, in specific circumstances be aimed directly at a third person. This is the case that the defence argues before me.
[16] I must not lose sight of the mischief that an accused must be protected from. Statements about family or loved ones not being charged or about being wrongfully convicted, do not alone stand as a basis for rejecting the voluntariness of a statement. As set out in Oickle
54 However, phrases like "it would be better if you told the truth" should not automatically require exclusion. Instead, as in all cases, the trial judge must examine the entire context of the confession, and ask whether there is a reasonable doubt that the resulting confession was involuntary. Freedman C.J.M. applied this approach correctly in R. v. Puffer (1976), 1976 1316 (MB CA), 31 C.C.C. (2d) 81 (Man. C.A.). In that case a suspect in a robbery and murder asked to meet with two police officers of his acquaintance. At this meeting, one officer said: "The best thing you can do is come in with us and tell the truth" (p. 95). Freedman C.J.M. held that while the officer's language was "unfortunate", it did not require exclusion (at p. 95): "McFall wanted to talk, he wanted to give the police his version of what had occurred, and above all he did not want [page36] Puffer and Kizyma to get away, leaving him to face the music alone" (emphasis in original).
[17] I quote the final and apologetically lengthy paragraphs from Oickle to bring home what the problem is with the argument of the defence:
56 A final threat or promise relevant to this appeal is the use of moral or spiritual inducements. These inducements will generally not produce an involuntary confession, for the very simple reason that the inducement offered is not in the control of the police officers. If a police officer says "If you don't confess, you'll spend the rest of your life in jail. Tell me what happened and I can get you a lighter sentence", then clearly there is a strong, and improper, inducement for the suspect to confess. [page37] The officer is offering a quid pro quo, and it raises the possibility that the suspect is confessing not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator. By contrast, with most spiritual inducements the interrogator has no control over the suggested benefit. If a police officer convinces a suspect that he will feel better if he confesses, the officer has not offered anything. I therefore agree with Kaufman, supra, who summarized the jurisprudence as follows at p. 186:
We may therefore conclude that, as a general rule, confessions which result from spiritual exhortations or appeals to conscience and morality, are admissible in evidence, whether urged by a person in authority or by someone else. [Emphasis in original.]
57 In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when 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. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt:
• Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the [page38] confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.
The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.
[18] The fact is there was no quid pro quo in anything that was said by the police officers to Mr. Khan. Mr. Reza Khan already knew that his cousin had been arrested, prior to him going into the police station, based on the text he received from Saif Ali. Further, he was told that his aunt and cousin were under arrest by the police officers. He was told that his family was in trouble because of the package. He was told to tell the truth. He was never told that if he spoke to the police his family would not be charged or his family would be given leniency. In other words there was no connection between what the police said about his family and him speaking the truth to them
[19] Reza Khan testified at this hearing and gave the following significant evidence relevant to this decision:
• the questions in the first interview were essentially the same as in the second interview;
• in the first interview, as in the second interview, he was told his family was under arrest because of his actions;
• he knew that his family was in trouble before the police told him and he knew that it was likely a result of the package that he told them was for him. He had some bad feelings because of his family being in trouble as a result of this package;
• he wanted to get his story out to the police that he had no idea there were drugs in the package and that his family did not know anything about the package or its contents;
• he never changed his story to the police; he stuck to the story about the acquaintance in Guyana sending him money to buy a truck for him in Canada and ship to him. Even after the police told him his family was in trouble and that he should tell the truth, he told the exact same story because it was the truth that he did not know anything about drugs in that package;
• the police never told him his family would be released if he changed his story. They did not say that in the first interview or in the second interview;
• the only real difference between the interviews was that Constable Buchner was a little more aggressive in the first interview than in the second. He was also more tired and less energetic in the second interview.
[20] The evidence of the two police officers who testified on the voir dire with respect to this statement was also that they did not make any promise to Reza Khan, nor did they tell him that things would go worse for him or his family if he did not talk to them. Further Reza Khan never told the police while talking to them that he did not want to give a statement to them. He agreed he wanted to clarify with them that he did not know there were any drugs in the package and neither did his family.
Decision
[21] I have no concerns that the first videotaped statement which inadvertently was not properly recorded was in content or approach by the police significantly different than the second statement. There is simply no evidence from either the police or Reza Khan that the first statement was significantly different. To base my decision on anything but the evidence would of course be speculation as to what may or may not have been in that first statement. As to the crucial aspects of that statement, both as to the kinds of questions and the plea to Reza Khan to tell the truth because of his family, there is no evidence that there is any significant difference between the two statements.
[22] I am satisfied beyond a reasonable doubt that the videotaped statement of Reza Khan given to the police on September 1, 2011 was voluntary. There is nothing in the evidence that raises any reasonable doubt as to the voluntariness of that statement.
[23] The fact is Reza Khan voluntarily spoke to the police to tell them his version of events, to assist both himself and his family. He never wavered from his version of the events, and throughout the videotaped interview he held his own against the police officers. He never wavered in his story, and was able to dialogue with the police freely, and actually argue with them, for example with respect to how he found out the drug he was charged with importing, was cocaine.
[24] There was absolutely nothing in the statements of the police to Mr. Khan about his family, that could be interpreted as an improper inducement to him to talk to the police. There is no evidence that the police made any other statement than that which is on the video. Those statements do not come close to being a quid pro quo that if Mr. Khan talked to the police he would receive a benefit, or his family would receive a benefit.
[25] Accordingly, I find that the videotaped statement of Reza Khan is voluntary and may be used by the Crown at this trial.
Mossip J.
Released: July 5, 2013
COURT FILE NO.: CRIMJ(F) 1971/12
DATE: 20130705
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
MOHAMED REZA KHAN
Respondent
RULING RE: VIDEOTAPED STATEMENT OF REZA KHAN
Mossip J.
Released: July 5, 2013