NEWMARKET COURT FILE NO.: CR-11-01457
DATE: 20140228
CORRECTED DATE: 20140501
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAND MOHAMAD
Defendant
P. Westgate/R. DeChellis, for the Crown
M. Mirosolin/S. Wickramasinghe, for the Defendant
HEARD: March 18-22, 25 and 27, 2013
Corrected decision: The text of the original Ruling was
Corrected on May 1, 2014 and the description of the correction
is appended.
RULING #1 – ADMISSIBLITY OF STATEMENT OF MOHAND MOHAMAD OBTAINED FEBRUARY 21 AND 22, 2011
McISAAC J.
INTRODUCTION
[1] On March 27, 2013, I made a “bottom-line” ruling admitting part of the accused’s statement before the jury. I indicated at that time that formal reasons for that disposition would be filed in due court. These are those reasons.
BACKGROUND
[2] Mr. Mohamad was arrested in Ottawa pursuant to a Canada-wide warrant on February 21, 2013 in relation to the shooting death of Arash Bakhtaryani which had taken place in Concord one month earlier. Upon his return to York Region that same day, he was formally interviewed by Detective William Goetz for a period of approximately six and half hours. That videotaped interrogation is the subject matter of this voir dire which involves both the common law confessions rule and an application to exclude the statement on the basis of an alleged breach of s. 10(b) of the Charter. Both sides agreed that these issues could be canvassed on a “blended” basis.
[3] All of the evidence relating to what transpired with Mr. Mohamad between the time of his arrest early in the morning hours of February 21, 2013 and his arrival in York Region and the start of the subsequent questioning by Detective Goetz went into the record on consent. Suffice it to say that Mr. Mohamad was properly cautioned, given his rights to counsel and had an opportunity to speak to both duty counsel and his lawyer of choice prior to his contact with Detective Goetz. As well, it is conceded that there were no threats, promises or inducements made by any person in authority up to that point.
[4] Although Mr. Mohamad arrived in York Region under police escort at approximately 6:30 p.m. on February 21, 2013, the interview by Detective Goetz did not begin until 9:30 p.m. It ended shortly before 4:00 a.m. on February 22, 2013 and took place in its entirety in a police interview room.
EVIDENCE ON THE VOIR DIRE
[5] A DVD of the interview along with two transcripts were filed on the voir dire. Mr. Mohamad initially indicated that he did not know why he was being charged with this murder and that he knew “nothing” at the time. Detective Goetz reminded him of his right to silence but warned him that anything he did say was recorded and could be given in evidence against him. Mr. Mohamad responded that he was aware of this advice “100 percent” and that this was not the first time he had ever been arrested. He acknowledged having been involved in “takedowns, like, raids and stuff” and that he was aware of the “routine”.
[6] During the course of this lengthy interrogation Mr. Mohamad expressed on numerous occasions that he did not want to speak to Detective Goetz about the incident. However, despite this articulated reluctance, it is clear that the accused was prepared to share certain information with the officer. He provided a convoluted explanation in an attempt to justify his failure to surrender to the authorities once he became aware of the warrant for his arrest. He readily conceded his attendance at the stag party where the shooting took place and his acquaintance with the deceased. The accused was obviously curious about what evidence the investigators had that may have incriminated him and led to him being a suspect. These occasions of curiosity were also numerous and are peppered liberally throughout the interview. The Crown has prepared a chart reflecting this ambivalence: see Exhibit “H”. The accused did not contest the accuracy of these calculations and, in my view, they are amply supported in the evidence.
[7] At approximately 12:40 a.m., that is, some three hours after the beginning of the interrogation, Mr. Mohamad makes his first complaint that he is in need of some rest because he had been detained in police custody for a period of 24 hours. Following that comment, he repeats on several occasions that he did not wish to speak any further to the police and he wished to follow the advice of his lawyer to remain silent. He did acknowledge to Detective Goetz that he had been simply complying with Mr. Mohamad’s desire to know what evidence the police had against him. At 12:47 a.m. he repeats that he is “really tired” but he immediately freely engages with the officer and denies that he was involved in loan sharking. Earlier in the interview he had an extremely animated discussion with Detective Goetz about the basis for the charge of first degree murder and mounted, in my view, an extremely compelling argument to the effect that this was a spontaneous, as opposed to, planned killing of Mr. Bakhtaryani.
[8] It becomes more evident that Mr. Mohamad had become fatigued because he yawns several times at this phase of the interview. When he asks Detective Goetz to respect his refusal to speak any further and it becomes obvious the officer will not desist in the interrogation, the accused asked to be returned to his cell at 1:05 a.m. This was more than three and half hours after the interrogation began. The officer insisted that Mr. Mohamad had shot and killed the deceased and he wanted to know the reason why he did so. He threatened to keep the accused in the interview room “all night” to get his way.
[9] Not surprisingly, there are occasions after this ultimatum that Mr. Mohamad does engage in further discussions with the officer. In fact, he again becomes quite animated when shown photographs from the video surveillance at the banquet hall along with one of the actual videotapes. The interrogation continued for almost three more hours following the ultimatum.
POSITIONS OF THE PARTIES
(i) Voluntariness
[10] The Crown argued that the evidence before me established beyond a reasonable doubt that all of the responses from Mr. Mohamad during the course of this lengthy interview were freely given and were not the product of any form of aggressive atmosphere. In addition, they did not flow from any form of improper inducement.
[11] On the other hand, the accused suggests that the voluntariness of this statement is vitiated by the fact that there is a “constellation of factors” which created an atmosphere of oppression for all of this interview. As well, there was a series of subtle inducements suggested to Mr. Mohamad that should create in my mind a reasonable doubt concerning the voluntariness of this statement.
(ii) Charter
[12] The accused maintains that when Detective Goetz suggested that it would be a “mistake” for him to speak to his lawyer as opposed to telling the police what had happened on the night in question, he was denigrating the role of legal counsel contrary to s. 10(b) of the Charter and that the statement should be excluded pursuant to s. 24(2). On the other hand, the Crown suggests that this comment did not amount to a denigration of counsel and, accordingly, there is no basis for exclusion.
ANALYSIS
I – Voluntariness
[13] Both sides have referred me to the controlling judgment of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. I glean three basic principles from the judgment of Iacobucci, J.:
the confessions rule has the twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes [para. 33];
the entire circumstances surrounding a confession must be considered in assessing voluntariness [para. 68]; and
although the doctrines of oppression and inducements are primarily concerned with reliability, the confessions rule also extends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process” [para. 69].
[14] To these basic concepts I would graft the Charter guarantee of the right to silence, the breach of which may impact upon the exercise of free will in the making a statement: see R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 53. In that passage, Charron, J. for the bare majority made it clear that a crude quantitative calculation of assertions did not suffice. On the other hand, the 18 “unequivocal” assertions of the right to silence would have led to exclusion according to the minority judgment of Fish, J. Nonetheless, the police are not required to retreat automatically once a detainee expresses a desire to remain silent: see R. v. Sinclair, [2010] 2 S.C.R. 301 at para. 63.
[15] I am satisfied that for the first three and half hours of this six and half hour interrogation all of Mr. Mohamad’s statements to Detective Goetz were free and voluntary as defined in the applicable jurisprudence. I am convinced beyond any doubt that during that period of time the accused was on a subtle mission to determine what the police investigation had unearthed about his involvement in this homicide. It is implicit in his exchanges with the officer that he was aware there were surveillance cameras in and about the premises of the Paradise Banquet Hall. It was critical for Mr. Mohamad to determine to what extent his movements had been captured and whether the shooting itself was viewable. I have no doubt that he was using his right to silence as a “flag of convenience” to provoke more information from Detective Goetz during this phase of the interview: see R. v. Figueroa, [2002] O.J. No. 3137 (S.C.J.). The accused conceded that he knew the “routine” of investigation and arrest and this detention and interrogation was far from a unique experience for him. He was impervious to all of the inducements proffered by Detective Goetz that could have compromised the voluntariness of any admissions flowing from a less seasoned participant in the criminal justice system. He made the inevitable admission that he did attend the stag party on the night in question. He described the vehicle that he drove and parked before entering the hall. These concessions were, in my view, part of the negotiation that he undertook with Detective Goetz to excavate the fruits of the police investigation. In my opinion, he displayed significant acumen in this exercise and during this phase he was content to haggle with his inquisitor in a clear stance of “equality of arms”. However, I cannot say that that dynamic prevailed after approximately 1:05 a.m. It probably did given Mr. Mohamad’s curiosity about the photos and videos that were presented to him subsequently. However, I am not satisfied beyond a reasonable that this equilibrium was maintained.
[16] At approximately 12:40 a.m. Mr. Mohamad makes his first complaint of getting tired: see p. 270 of Exhibit C2. Following that event, the videotape shows him yawning on several occasions. He confirms that he had been co-operative and forthcoming up until that point because he did not want to seem like an “asshole” when Detective Goetz seemed initially to be a “nice guy”: see p. 281 of Exhibit C2. The officer’s questions became more accusatory and aggressive: see pp. 295-6 of Exhibit C2. The accused not only says on several occasions that he is finished talking to the officer, he adds the important element of wishing to be returned to his cell: see p. 306 of Exhibit C2. From this exchange it would appear that the accused has possibly exhausted his attempts to negotiate any more with Detective Goetz. In response to Mr. Mohamad’s repeated requests to be returned to his cell, the officer responds that he was prepared to keep him under interrogation even if it took “all night”: see p. 307 of Exhibit C2.
[17] This development leaves open the chance that Mr. Mohamad’s equivocal assertions of a wish to remain silent had become unequivocal. Based upon that possibility I cannot be convinced beyond a reasonable that what had originally been an unoppressive and benign relationship based upon the principles of equality of arms had deteriorated into a situation where Detective Goetz was using this detention in a manner abusive of the prisoner’s rights and the fairness of the criminal process.
[18] For those reasons, subject to the Charter argument and editing, the Crown will be permitted to lead the circumstances of this interrogation up to 1:05 a.m. on February 22, 2011.
II – Charter
[19] The accused submits that s. 10(b) was breached by Detective Goetz in the following exchange at p. 293 of Exhibit C2:
M.M.: What I’m saying to you is, honestly, sir, I’m not going to speak to you about this. I really want to speak to my lawyer.
D.G.: Well, then you’re making a mistake.
[20] As the written submissions go, this amounted to a denigration of the role of counsel: see Notice of Application dated February 22, 2013.
[21] Counsel for Mr. Mohamad rely on R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206 in support of the submission that this “mistake” reference amounted to a breach of s. 10(b). In that case, the officers conducting the interrogation employed extremely disparaging remarks about defence counsel. They questioned his loyalty, commitment, availability and the amount of his fees: see p. 221. In my view, Detective Goetz’s comment, although unfortunate, did not go so far as to reach the egregious magnitude reflected in R. v. Burlingham, supra. It did not undermine to the point of a breach of Mr. Mohamad’s s. 10(b) right to counsel: see R. v. Mujku, 2011 ONCA 64 at para. 36.
[22] Before closing my consideration of this Charter complaint, I made two additional comments. First, it was suggested during the course of submissions that there may have been on additional breach of s. 10(b) on the basis of Mr. Mohamad’s “confusion” about the entitlement of the police to persist in this interrogation when faced with his intermittent claim to the right to silence. It was suggested that this circumstance triggered a “fresh” obligation to permit another consultation with counsel: see R. v. Sinclair, supra, at para. 52. However, in my view, this submission misses the mark because it does not focus on the issue of the accused’s comprehension of his right to remain silent. It is abundantly clear from the record before me that Mr. Mohamad had been advised by both duty counsel and his own lawyer that he should remain silent in the face of police questioning. This occurred before he was transported from Ottawa to York Region and was confirmed by Detective Goetz at the onset of the interrogation. He was aware of his rights “100 percent”: see p. 5, Exhibit C1.
[23] His understanding of his right to silence is confirmed throughout this interview. The fact that he may not have fully appreciated the entitlement of the authorities to break down that resolve by non-abusive persistence is of no moment. There was no need for a “fresh” consultation with counsel pursuant to the governing authorities.
[24] Second, even if I had acceded to this application, it would only have resulted in a possible exclusion of that portion of the statement that followed after the “mistake” comment of Detective Goetz. I know of no authority suggesting that pre-taint evidence can be excluded under s. 24(2) of the Charter. It does not have retroactive effect.
CONCLUSION
[25] For all of these reasons, subject to submissions on editing, all of Mr. Mohamad’s statement up to 1:05 a.m. on February 22, 2011 will be admitted at trial.
McISAAC J.
Released: May 1, 2014
Correction made to the spelling of the Defendant’s surname from Mohamed to Mohamad:
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