ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-9000065-0000
DATE: 20130118
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Bari Crackower for the Crown
- and -
MANSOUR CHEGINI
Applicant
E. Ghebrai for Mansour Chegini
HEARD: January 14-16, 2013
Thorburn J.
RULING
THE ISSUE
[1] Mansour Chegini is charged, along with several others, with several drug trafficking offences related to the importation of large quantities of opium.
[2] On this voir dire, the Crown seeks a ruling that a videotaped statement made by Mansour Chegini to Detective Nick Ibbott on the day of his arrest on January 26, 2011, was voluntary.
[3] Mansour Chegini claims the statement was not voluntary and is thus inadmissible because he was not cautioned and made aware that the statement or parts thereof could be used to his detriment before making the statement.
THE LAW
[4] The Crown must establish beyond a reasonable doubt that the statement was voluntary. The factors to be considered to determine whether a statement was made voluntarily are set out in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R.3. In that case, the Supreme Court of Canada held that a statement can be found to be involuntary if it is obtained as a result of threats, promises, inducements, oppression, or if the statement is taken when the person does not have an operating mind.
[5] The Court of Appeal in R. v. D.M., 2012 ONCA 894, [2012] ONCA 894, [2012] O.J. No. 6059, at paras. 39-48, held that some of the factors to be considered in determining whether an accused had an operating mind at the time he gave a statement are:
a) whether the person is aware of their right to silence, was cautioned about the effect of giving an answer and knew this was a police investigation;
b) whether the line of questioning was misleading or whether the person was confronted directly regarding the allegations;
c) whether the person seemed generally aware of the potential legal consequences of his actions;
d) whether he had consulted a lawyer before giving the statement;
e) whether he refused to answer certain questions; and
f) whether there was a confession.
[6] A court must consider all the circumstances in which the accused spoke to determine whether a statement given to a police officer was made voluntarily (Oickle at para 68).
THE POSITIONS OF THE PARTIES
[7] Chegini’s counsel claims the Crown has not proven beyond a reasonable doubt that Chegini had an operating mind at the time he gave the statement. The operating mind requirement means that the accused must know what he is saying and that he is saying it to police officers who can use his statement or parts thereof to his detriment.
[8] The Crown contends it is apparent from the statement that Chegini was cautious about what he said to police and was aware of the consequences of speaking to police about issues relating to this case and specifically that what he said could be used against him.
[9] The parties also agree that the absence of a caution at the time a statement is made to police is a factor to consider but is not determinative of the voluntariness of the statement given.
THE FACTUAL CONTEXT IN WHICH THE STATEMENT WAS MADE
[10] In order to admit the statement or part thereof at trial, the court must be satisfied beyond a reasonable doubt that when making the statement, Chegini was aware of what was at stake in making a statement to a person in authority. In order to make this determination, there must be an examination of the circumstances in which the statement was made. R. v. Worrall [2002] O.J. No. 2711 (S.C.) at paras. 94 and 95.)
[11] The following circumstances, lead me to believe that Chegini was aware of his right to silence and the implications of responding to the officer’s questions:
a. When Chegini was arrested on November 18, 2010, on some of the charges before this court, he was given a standard caution about the consequences of giving a statement to police. He understood the caution given to him and thereafter he was given the opportunity to speak with his counsel.
b. On January 26, 2011, Chegini was transported to the Lindsay Jail. Upon arrival at the Lindsay Jail, Chegini was advised of further charges against him. He said he wanted to speak to his then counsel Daniel Moore and was given the opportunity to do so.
c. An hour or two later, Chegini was taken to an interview room by Detective Ibbott where he gave a videotaped statement. (A copy of the videotaped statement was provided to the court.)
d. Chegini was told at the outset that this was a police investigation and he was already in custody. He was told the interviewing officer was a drug enforcement officer. He was advised that there were additional charges against him involving importation of a controlled substance, conspiracy to commit importing a controlled drug into Canada and conspiracy to be in possession of the drugs for the purpose of sale.
e. He was not given a caution but had spoken to his legal counsel an hour or two before the interview.
f. Chegini was confronted directly regarding the new allegations and the line of questioning was not misleading. The statement was taped with Chegini’s knowledge and was largely exculpatory.
g. There were no threats, promises or inducements made to Chegini during the videotaped interview. There was no reason to question Chegini’s mental state. The interview was conducted in a respectful and friendly manner and Chegini did not appear to be intimidated by the officer or his questions.
[12] I therefore find that Chegini had an operating mind and that the statement he made to Detective Ibbott was voluntary. For these reasons, I find the Crown has satisfied me beyond a reasonable doubt that the statements given to Detective Ibbott were voluntary and are therefore admissible at trial.
Thorburn J.
Released: ** January 18, 2013**
COURT FILE NO.: 13-9000065-0000
DATE: 20130118
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
MANSOUR CHEGINI
RULING
Thorburn J.
Released: January 18, 2013