ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CR-12-2141
Date: 2013 10 10

B E T W E E N:

HER MAJESTY THE QUEEN

A. Cornelius, for the Crown

Applicant

• and -

LOU-I BOU-CHAHINE

B. Petrouchinova, for the accused

Respondent

HEARD: October 8 and 9, 2013 at Brampton

RULING ON ADMISSIBILITY OF ACCUSED’S STATEMENT

Skarica J.

OVERVIEW

1The accused is charged with robbing $1800 from the victims. His co-conspirators are alleged to have assisted in the robbery while armed with firearms. The accused was arrested on October 14, 2011 and thereafter gave a statement to the police officers which consists, in the main, of denials of participating in the offence but gives certain particulars including knowing one of the victims and the possession of the involved vehicle which could be useful to the Crown’s case.

TYPE OF PROCEEDING

2The Crown entered into a voir dire to prove the voluntariness of the accused’s statement. There were no Charter issues.

ISSUE

3On the voir dire, the Crown called the arresting officer, the transporting officer and the booking officer. The Crown did not call the officer who accompanied the arresting officer to the accused’s home. Is the Crown able to proof voluntariness of the statement beyond a reasonable doubt notwithstanding its failure to call the accompanying officer?

FACTS

4The basic facts surrounding the taking of the statement are not in serious dispute. Detective McKenzie of the Peel Regional Police Service was the first witness called.

5Detective McKenzie testified that, on October 13, 2011 he was advised that two victims – Ali Hojjati and Ashkan Haghighat – had been robbed at Mavis and Queensway by three males armed with firearms and knives. The victims were interviewed and Ashkan provided the accused’s name and a licence plate number of a car that was used in the robbery. The licence plate number was registered to a relative of the accused. This relative indicated that the car was being operated by the accused and his sister.

6Officer Mckenzie was able to obtain the accused’s address. Accordingly, Officer Mckenzie, accompanied by Officer Heidi Adams, attended at the accused’s home at 8.48 p.m. on October 14, 2011 with intent to arrest the accused if he was home.

7The accused was at home and answered the door. The accused was 19 years of age and had limited experience in dealing with the police. Officer McKenzie advised the accused he was under arrest. At this time, the two officers were just outside the doorway. Officer McKenzie asked the accused if “we” could come inside and the accused said yes. The two officers walked up a set of stairs and went into the living/dining room. The living/dining room was described as being 20 feet by 40 feet and accordingly was relatively small. The mother was described as being in the living room sitting on a chair at the dining room table.

8Officer McKenzie proceeded to read the accused his rights to counsel at 8.51 p.m. Officer McKenzie could not recall where Officer Adams was at that time.

9Constable Snelling was called by Officer McKenzie to attend the home and transport the accused to 12 Division.

10Once the accused was under arrest and the situation was under control, Officer McKenzie started to make his notes in the living room. At that time, Officer McKenzie, the accused, the accused’s mother and Constable Adams were in the same room. Officer McKenzie recalls that the accused’s mother was visibly and extremely upset and Officer McKenzie recalls Constable Adams speaking to her. The accused was present in the same room – the living room – while his mother was upset and being spoken to by Officer Adams. No details were provided as to the conversation between Officer Adams and the accused’s mother which was taking place in the smallish living room within earshot of Officer McKenzie and it is reasonable to infer, within earshot of the accused.

11While waiting for Officer Snelling, Officer McKenzie asked the accused for his consent to search his room. The accused gave his consent for the search. When asked if Officer Adams was next to him at the time of the giving of this consent, Officer McKenzie testified that she was in the same room.

12At 8:54 p.m. the accused was given over to Officer Snelling so that he could be transported to 12 Division. Constable Adams and Officer McKenzie conducted a search of the accused’s room but did not locate anything of evidentiary value.

13Officer McKenzie testified that off video he did not make any promises, threat or use any force on the accused. Officer McKenzie testified that the same applied to Officer Adams and that she had no conversation with the accused. Officer McKenzie indicated that Officer Adams did not make any promises, threats or apply any force to the accused.

14PC Snelling was the second officer called. He testified that he arrived at the accused’s residence at 8:52 p.m. and that when he walked into the home, “officers” were dealing with the accused. PC Snelling testified that PC McKenzie was affecting an arrest but he could not make out what was being said. PC McKenzie turned the accused over to PC Snelling at 8:55 p.m. PC Snelling escorted the accused to the cruiser. PC Snelling was alone with the accused in the cruiser.

15PC Snelling read the accused a secondary caution and transported the accused to 12 Division arriving at 9:15 p.m. The accused was turned over to the cell officer and PC Snelling had no further conversation with him.

16PC Mullen was the last officer to testify. He was the cell officer that the accused was turned over to and obtained from the accused the usual information that is placed on a pre-printed booking form. He testified that he, at no time, made any promises or threats to the accused.

17PC Adams was not called by the Crown and no explanation was provided for not calling her. The defence called no evidence.

LAW

18The general rule is that the prosecution must call as witnesses all persons who had anything to do with the accused during the period before the statement was made or at least make them available for cross-examination. However this requirement can prove to be an onerous burden on the prosecution and various qualifications have been asserted: McWilliams Canadian Criminal Evidence, 4th Edition, page 8-106.

19The Ontario Court of Appeal decision in R. v. Woodward, (1975), 1975 1471 (ON CA), 23 C.C.C. (2d) 508 (Ont. C.A.) provides a good illustration of the application of the general rule. At the statement voir dire, only one of three officers, who had contact with the accused at a park and subsequently for an hour and a half while his home was searched and who were with him during a search of a nearby field, was called at the voir dire. The Court of Appeal held that the Crown was required to call as witnesses all persons in authority with whom the accused had been in contact at all relevant times prior to the interrogation of the accused.

20The Saskatchewan Court of Appeal decision in R. v, Settee, (1974), 1974 971 (SK CA), 22 C.C.C. (2d) 193 (Sask. C. A.) – decided 6 weeks before R. v. Woodward, supra, - provides a good example of a qualification to the general principle. The Crown did not call on the voir dire the officers who escorted the accused from the cell to the interrogation room. The Court of Appeal held that there was not a tittle of evidence that the escorting officer did anything more that deliver the accused to the interrogation room. The escorting officers did not take part in obtaining the statements and were not present when the statements were made and accordingly there was no requirement for the Crown to call them.

21These two cases raise the obvious question: When is the Crown required to call police officers who had contact with the accused before the statement was made?

22Obviously, there is no absolute rule that every person in authority, irrespective of the degree of contact with the accused, need be called on a confessional voir dire. Each case turns on its facts: R. v. Menezes, 2001 28426 (ON SC) at para.19. In Menezes, Justice Hill held that the Crown is only required to call peace officers with legally meaningful contact and the rule is a flexible rule designed to examine the role of police officers with real investigatory or custodial contact: Menzes, supra, at paragraphs 19-20.

23In the recent case of R. v. Williams, [2013] O.J. No. 987 (Ont. S.C.J.), Justice Clark discussed what legally meaningful contact could include:

(vi) Sufficiency of proof: failure to call witnesses

76 Speaking generally, in seeking to prove a confession voluntary, it is not necessary for the prosecutor to call all persons in authority who had any contact with the accused; rather, the Crown need only call a witness who had contact with the accused where the witness would have been in a position to affect whether the accused gave a statement.

77 In R. v. Socobasin (1996), 1996 NSCA 201, 110 C.C.C. (3d) 535 (N.S.C.A.), at p. 554, leave to appeal ref'd, [1996] S.C.C.A. No. 628, the court stated:

The trial judge must look at the circumstances and determine whether the Crown called as a witness on the voir dire every person in authority likely to have been in a position to influence the giving of the statement by the accused and, if not, was that person's absence from testifying explained satisfactorily.

See also R. v. Dinardo (1981), 1981 3292 (ON SC), 61 C.C.C. (2d) 52 (Ont. Co. Ct.), at p. 58, leave to appeal ref'd, 39 N.R. 448n, where Borins Co. Ct. J. (as he then was) held that a person need not be called to establish voluntariness if, "even assuming that she represented a person in authority, ... she was sufficiently remote from the taking of the statement ...".

24The onus is on the Crown to prove affirmatively all the surrounding circumstances leading up to the making of the confession: R. v. Koszulap (1974), 1974 1461 (ON CA), 20 C.C.C. (2d) 193 (Ont. C.A.) at pp. 197-98. The Crown accordingly fails to meet its onus when there is an evidentiary gap as to all the surrounding circumstances leading up to the making of a confession. The onus is on the Crown to prove the voluntariness of an accused’s statement beyond a reasonable doubt: R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.) at para. 71.

25An example of an evidentiary gap includes situations where there is no accounting for lengthy periods of incarceration of the accused prior to giving of the statement, R. v. Holmes (2002), 2002 45114 (ON CA), 62 O.R. (3d) 146 (C.A.), at paragraphs 16-19, R. v. Koszulap, supra, at p.194 and R. v. Williams, supra at para. 86.

26The trial judge cannot make a proper determination of whether a statement was voluntary without understanding all of the relevant circumstances surrounding the confession: R. v. Holmes, supra, at para. 28, R. v. Oickle, supra, at para. 71.

27When there is a material evidentiary gap in the circumstances surrounding a confession, it is not for the accused to prove that something untoward took place but it is for the Crown to prove it did not: R. v. Williams, supra, at paragraph 83, R. v. Holmes, supra, at paragraphs 15-19.

28Accordingly, after reviewing the authorities, I conclude that the onus is on the Crown, in order to satisfy the judge as to all the surrounding circumstances leading to the taking of the statement and prove voluntariness beyond a reasonable doubt, to call all persons in authority who:

(1) Have legally meaningful contact with the accused, i.e. officers who had real investigative or custodial contact with the accused,

(2) Any officer who had contact and would have been in a position to affect whether the accused gave a statement,

(3) Any officer who would have been in a position to influence the giving of a statement of the accused and if not, was that person’s absence explained satisfactorily,

(4) Any officer who is not sufficiently remote from the taking of the statement,

(5) Any officer who, if failed to be called, would leave a material evidentiary gap as to all the surrounding circumstances leading to the confession. Where material evidentiary gaps are present, it is not for the accused to prove that something untoward took place; it is for the Crown to prove it did not.

APPLICABILITY OF LAW TO THE FACTS

29It is clear from the evidence adduced at the voir dire that Officer Heidi Adams had legally meaningful contact with the accused before he gave his statement. She was present with Officer McKenzie in attending the accused’s home with the intent to arrest him. As defence counsel put it, she was 50% of the arresting team. She was present during the accused’s arrest and she was present when the accused was asked for and gave his consent to having his room searched. More significantly, she spoke to the accused’s distraught mother for several minutes within earshot of the detained accused. What are the details of the conversation that took place in the presence of the accused? There is simply no evidence as to what or what was not said. There could have been comments and inducements/and or threats made by Constable Adams which were designed to be directed to the nearby accused or there could have been no such inducements/threats at all. It is not for the accused to prove that something untoward took place; it is for the Crown to prove it did not.

30At page 48 of the statement, Officer McKenzie tells the accused that “you can still help yourself out”. Officer McKenzie at page 49 indicates that the accused can help the police to identify the other two conspirators or he can take the rap himself. The officer then tells the accused to come clean and do the right thing and then indicates, “Your mother was a fucking mess tonight, dude. She does not wanna see you in this situation.” And then in the next paragraph at page 49, Officer McKenzie goes back to saying, “you can still help yourself out.” The statement that “you can help yourself out” may or may not be an inducement depending on the contextual background. The reference to the accused’s mother being a mess was sandwiched between the comments regarding the accused helping himself out. Surely, what Constable Adams said to the mother in the accused’s presence is an important piece of this contextual background. This is particularly so given Officer McKenzie’s evidence that the accused was concerned about his mother.

31The conversation between the accused’s mother and Constable Adams in the accused’s presence at the arrest scene would have placed Constable Adams in the position of being able to affect whether the accused would give a statement. The conversation between Constable Adams and the accused’s mother in the accused’s presence would put Constable Adams in a position to influence the giving of the statement by the accused depending on what was said. As I have indicated, there was no evidence elicited by the Crown as to the details of what was said to the mother in the accused’s presence. These facts distinguish this case from situations where an officer takes no part in speaking to the accused and is merely present: i.e. R. v. Kacherowski, (1978), 1977 1987 (AB CA).

32Given all of the above circumstances, it cannot be said that Constable Adams is “sufficiently remote from the taking of the statement”. There was no explanation as to why Constable Adams was not called.

CONCLUSION

33I conclude accordingly that the Crown, by failing to call Constable Adams, has not proved affirmatively all of the surrounding circumstances leading up to the taking of the accused’s statements.

ORDER

34The Crown has failed in its onus to prove the accused’s October 14, 2011 statement beyond a reasonable doubt and the statement is not admissible at the accused’s trial.

Skarica J.