ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-12634
DATE: 20140121
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDULAZEEZ SHITTU
Accused
Mr. David Elhadad, for the Crown
Alain Tayeye, for the Accused
HEARD: January 6, 2014
Decision on charter issue for right to counsel
Lalonde J.
[1] During this trial, I heard evidence on a video interview between Mr. Shittu and the police investigator, Denis Dupont. Defence counsel and Crown counsel agreed that this evidence could be used in a blended voir dire to determine whether the statements made during the 30-minute interview by Mr. Shittu were voluntary.
[2] To recall the evidence I heard, I will start with Detective Dupont’s phone call to Mr. Shittu’s father, one month after the occurrence took place. Once permission was granted to Detective Dupont to speak with the accused, the accused was asked to attend on the following evening at the central police station for an interview. The accused was told by Detective Dupont, and it is not contradicted, that he was facing two charges of robbery and that he should also speak to a lawyer.
[3] The following evening, the accused attended at the Ottawa Police Station where he was met by Detective Dupont. As the accused was accompanied by his father, the father was asked to remain in the lobby while the officer interviewed the accused. In the hallway leading to the interview, the accused was told that he was under arrest for robbery, and that, once upstairs, he would be given his cautions, the interview would take place and the accused would be allowed to return home on a Promise to Appear. Two minutes later, Detective Dupont and the accused were in the interview room and not a word was exchanged between them during the two minutes it took to arrive at the interview room. Detective Dupont testified that he had also told the accused’s father that his son would be released after the interview on a Promise to Appear. An unsworn video interview took place and a transcript of the statements made on the video was filed as Exhibit “2b”.
[4] The interview started with Detective Dupont asking the accused if he had spoken to a lawyer and Mr. Shittu saying that he had and that the lawyer was Mr. Tayeye. He was also asked if he had understood and was satisfied with the advice received. He was immediately given his primary and secondary cautions by Detective Dupont. He was given a Section 524 caution which, under the Criminal Code, would cause the revocation of any previous release on any other charges. Twice the accused refused to answer any questions put to him by Detective Dupont.
[5] The interview then proceeded and involved Detective Dupont outlining the conditions that would be imposed on Mr. Shittu in order that he be immediately released on a Promise to Appear. Following a brief absence from the interview room to photocopy documents, Detective Dupont outlined to Mr. Shittu what witnesses had said during his investigation. He asked him if he wanted to say something, and whether the information he had was correct; then he asked Mr. Shittu to sign the standard undertaking.
[6] It is at this point that Mr. Shittu, without any prompting, said: “He split the money with me, David and Jamal.” The Detective then said: “What was that?” Mr. Shittu repeated “he split the money with me, David and Jamal.” The conversation then continued with Mr. Shittu spelling the names of Mr. Jamal Maxwell and Adam Cole and with the identification of a fourth person with whom they split the money namely, David Shiferaw.
Position of Defence Counsel
[7] Defence counsel is arguing that the evidence in the video interview should not be admitted as it is not voluntary, because:
• given his client’s age, he was nervous and did not understand the implications of what he was being asked by Detective Dupont; and
• his rights under the Charter were breached, namely:
the right to be informed in a timely manner of the reasons for his arrest pursuant to s. 10(a) of the Charter;
the right to remain silent pursuant to s. 7 of the Charter; and
the right to be assisted by counsel pursuant to s. 10(b) of the Charter.
[8] Defence counsel felt that, at the time his client gave his inculpatory statements, the interview had ended and that fact together with the Charter breaches meant that Mr. Shittu did not have the opportunity to exercise his Charter rights. Counsel relies on part of para. 47 of R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, where Charron J. states:
Under both the common law and charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities.
Counsel concludes that, because Detective Dupont continued to question his client, Mr. Shittu was not operating with a fee will and his statement should be rejected.
Analysis
[9] I am not setting Crown counsel’s arguments separately as my decision reflects in large part his submissions. I find that Mr. Shittu was speaking with a free and operating mind for the following reasons:
Charron J. states, in R. v. Singh, supra, that, if an accused has had the opportunity to speak to counsel and is satisfied with the advice received, and if he has been properly cautioned concerning his right to speak to a lawyer, and nevertheless decides to say something, then so be it.
Next, Mr. Shittu not only spoke voluntarily in the interview but did so at the voir dire in this trial when he confirmed that he had spoken to a lawyer, had understood the lawyer’s advice and was satisfied with the advice. He was told, in the lobby of the police station, that he would be cautioned all over again once both he and Detective Dupont would arrive in the interview room. Given Mr. Shittu’s evidence, I agree that no further cautions were necessary prior to his video interview in that his Charter rights had been taken care of, starting with Detective Dupont’s phone call the night before and continuing with Mr. Shittu’s call to his lawyer to receive advice, which he understood and which satisfied him.
[10] Next, upon looking at the video, it was clear that Mr. Shittu was comfortable during the interview: he was not moving his arms, legs, or body; the interview was short; Detective Dupont’s voice was low and mild. No threats, promises or inducements were made to Mr. Shittu. For the first 22 minutes of the interview, Mr. Shittu had said nothing and nothing on the video even mildly suggests he was forced to make a statement.
[11] Mr. Shittu has a “B” to “B+” average in his studies. He is bright. His mind was not overborne by the interview. During his evidence at trial, he did not indicate that he had felt that Detective Dupont had exercised psychological pressure of any kind. It is normal for any interviewee in Mr. Shittu’s position to be nervous and anxious to go home. He comes to the police station knowing what he will be charged with and knowing that he will be released.
[12] Mr. Shittu’s evidence falls short of showing that pressure was exercised on him. I find that the Crown has proven the voluntariness of the statements beyond a reasonable doubt. I fail to understand why defence counsel argued that Detective Dupont was guilty of persistent questioning. It was not persistent questioning and what he did by way of questions was just fulfilling the requirements of his job. In R. v. Singh, supra, at para. 13, Charron J. refers to two police interviews with the accused and notes that the accused asserted his right to silence 18 times. This is far from the 3 or 4 times in Mr. Shittu’s case. At para. 33, Charron J. states: “Therefore if a detainee has exercised his s.10 Charter right to counsel, he will presumably have been informed of his right to remain silent and the overall significance of the caution may be somewhat diminished.” This is exactly what happened in Mr. Shittu’s case. In the same decision, Charron J. also underlines that no rigid requirement should be imposed to refrain police from questioning a detainee. She said that such an approach would overshoot the protection afforded to the individual’s freedom of choice both under the common law and under the Charter.
[13] This being said, particular circumstances may attenuate the impact of the Charter breach on the protected interests of the accused from whom a statement is obtained in breach of the Charter. For instance, if an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10(b) was technically defective at either the informational or implementation stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. Likewise, when a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach, the impact of the breach on the accused’s protected interest in informed choice may be less: see R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343. Absent such circumstances, the analysis under this line of inquiry supports the general exclusion of statements taken in breach of the Charter.
[14] In conclusion, I therefore rule that the video statements of Mr. Shittu reproduced in Exhibit 2B, the transcript, are admitted in evidence.
Mr. Justice Paul F. Lalonde
Released: January 21, 2014
COURT FILE NO.: 11-12634
DATE: 20140121
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ABDULAZEEZ SHITTU
Defendant
Decision on charter issue for right to counsel
Lalonde J.
Released: January 21, 2014