Ontario Superior Court of Justice
Court File No.: CR-13-50000550-0000
Date: 20140523
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Scott Arnold, for the Crown/Applicant
Applicant
- and -
MOHAMED SHIRE
Jacob Stilman, for the Defendant/Respondent
Defendant/ Respondent
HEARD: May 21-23, 2014,
at Toronto, Ontario
Michael G. Quigley J.
Reasons for Ruling
Re: Voluntariness of Statement
[1] Mohamed Shire is charged with a number of firearms-related offences. They arise out of his alleged possession of a sawed-off .22-calibre shotgun that was located at 1801 Martin Grove Road, Unit 3, Toronto, on Friday, May 11, 2012, just after 11:00 PM when members of the Toronto Emergency Task Force executed a judicially authorized warrant to search that premises for a firearm. The warrant arose out of information provided by a confidential source to Detective Constable Nasser that one Loyen Jama, who resided at that residence, was in possession of an unauthorized handgun. However when the police searched the premises upon executing the warrant, they also located the sawed-off shotgun.
[2] Subsequent to being transported to 23 Division Police Station, at about 03:30 in the morning Mr. Shire gave a videotaped statement to Officers Duncan and Maharaj of the Toronto Police Service, taking responsibility for the sawed-off shotgun, which the police had not known about but which was found at the premises when the search warrant was executed.
[3] At this trial, Mr. Shire contested the voluntariness of that videotaped statement, and a voir dire was held to determine that question. The witnesses on the voir dire were several police officers involved at the premises, involved in transporting suspects to 23 Division, and those who conducted interviews. The most important of the police witnesses, however, was Detective Constable Nasser. He was involved in this investigation because the confidential source was a source affiliated to him. However, he did not actually participate in taking any of the statements that were provided, including that of Mr. Shire.
[4] Detective Constable Nasser’s evidence is critical to the question of determining the voluntariness of Mr. Shire’s videotaped statement. This is because it is only after Mr. Shire’s interaction and discussion with D.C. Nasser when Mr. Shire was in the holding cells at 23 Division that Mr. Shire advised Officer Nasser that he wished to make a statement, and which led to him providing that statement at 03:30 in the morning to Detective Constables Duncan and Maharaj. The other evidence critical to determine voluntariness of Mr. Shire’s confession is obviously that of the defendant himself, since he testified on the voir dire.
[5] The controlling decision relevant to determining the voluntariness of the statement given by Mr. Shire is the decision of the Supreme Court of Canada in R. v. Oickle.[^1] Four factors are enumerated in that case relative to the determination of voluntariness, but only one of them is engaged here. That question is whether any threats or promises were made or inducements provided to cause the accused, Mohamed Shire, to provide the video statement that he gave to the police. In order for the statement to be admissible, the Crown must prove the voluntariness of the statement beyond a reasonable doubt relative to that factor.
[6] In addition to that case, and although there may be others, there are two other cases that I find to be relevant to the issue that is before the court on this voir dire: the first is the decision of McMahon J. in R. v. Bailey[^2] and the second is my own decision in R. v. Rogers, a decision dated June 8, 2009 in CR-09-9-00, rendered in respect of a matter that arose when I was sitting in the Central West Region in Milton, but which appears to be unreported, or at least for which I am unable to find a citation. I will refer to these cases later in this ruling.
[7] Returning to the evidence, there were some nine people in that unit at the time the raid took place: six men and three women, one a young girl. Mr. Shire was one of those found in the course of that raid. All of those individuals were arrested and charged with firearms offences, times two, and taken to 23 Division Police Station for booking and further investigation.
[8] Shortly after they arrived, they were paraded before Sergeant Nolan, booked, and then either put in individual holding cells or in interview rooms. Mr. Shire was put into one of the holding cells after he was searched. Shortly thereafter, Mr. Jama took responsibility for the handgun found in the basement of Unit 3 at 1801 Martin Grove Road. That left the sawed-off shotgun unaccounted for.
[9] Mr. Shire testified that Detective Constable Nasser came to the holding cells and told them that Mr. Jama had confessed to possession of a handgun, but not the other firearm, and so all of the suspects would continue to be held under arrest for possession of that second handgun, not only the men but also the women, until someone took responsibility for that firearm.
[10] Mr. Shire testified that he talked directly to Detective Constable Nasser shortly afterwards. He claims that the officer told him that everyone continued to be under arrest, including “the girls.” Mr. Shire says he asked him whether everyone was going to jail. In his evidence, he stated that D.C. Nasser told him that unless someone admitted to possession of the sawed-off shotgun, everyone was going to go to jail. Mr. Shire testified that Officer Nasser said that directly to him, not to the holding cell room at large.
[11] He claims to have then asked Officer Nasser “then if I said that the firearm belongs to me, would everyone else be permitted to go?” He claimed that the officer said everyone else would be released. Shire asked how he could do that, and Nasser told him by giving a video statement. Shire testified that he was previously acquainted with Officer Nasser, who had arrested and charged him once before on another matter.
[12] Mr. Shire said that his reaction to this situation was that he was thinking about giving a statement but he was not sure whether to do so. He was thinking about it. He said that he was thinking that he was already going to jail, so he did not want everyone else to have to go to jail as well.
[13] So after about five minutes, when Officer Nasser came back to him after he had thought about it, Mr. Shire told Officer Nasser, “Let’s do this!” But he also says that Officer Nasser then told him about the details of the gun and where it had been located. Plainly, Mr. Shire was indicating in his evidence that Detective Constable Nasser was feeding information to him relative to the description of the gun and the location of the gun in the house, the very weapon that the defendant was going to take credit for, but which he now claims to have not known about himself.
[14] Mr. Shire said in his testimony that he took responsibility for the sawed-off shotgun because he thought everyone else would be released based upon his discussion with Detective Constable Nasser, because he says that was what Detective Constable Nasser told him.
[15] Nevertheless, Mr. Shire acknowledged that he knew he was going to be held even before he gave a statement, but that he was concerned that everyone else was going to be held at the police station as well, so he was thinking about doing something to help them out. He acknowledged in cross-examination that if he took ownership of the firearm, then everyone else would be released. He acknowledged that he wanted to help them “so that it would make sense if [he] took ownership of the gun.”
[16] However Mr. Shire also said that he was lying in giving the statement that he did because he said it was not true that the firearm belonged to him. He knew nothing about the gun, he said, and noted that Constable Nasser needed to tell him about the details of the gun before he was going to be in a position to give the video statement that he provided to Officers Duncan and Maharaj.
[17] Regrettably, Officer Nasser did not participate in the taking of that video statement.
[18] In his notes, the entirety of Officer Nasser’s notations about his discussions with Mr. Shire read as follows:
“Spoke with Mohamed Shire. Male indicates he wants to talk. Doesn’t want people to get in trouble. Male seems conflicted but asks for five minutes to think about it.”
[19] A short time later, after talking to Mr. Suleiman Ali, another of the males in holding, D.C. Nasser returned to speak to Mr. Shire. His notations on page 76 of his notebook read as follows:
“Returned to Mohamed Shire. Male says he wants to give a statement. Saying "let's do this", referring to statement. MCU officers advise the statements.”
[20] Later on page 77 in his notes, D.C. Nasser notes that Mr. Shire took ownership for the .22-calibre rifle. That is the entirety of his notes relating to his interactions at the 23 Division Police Station with this accused.
[21] In his evidence, D.C. Nasser said that he spoke to Mr. Shire through the pass-through door located on the doors to the holding cells. He said that he asked Mr. Shire when he got to his cell whether he knew anything, and it was his evidence that Mr. Shire said he wanted to make a statement, but that he was not certain and seemed “conflicted”. There was family involved. He did not want someone else getting into trouble for this, but he said that he needed five minutes to think about it. D.C. Nasser confirmed in his evidence that he could tell from Mr. Shire’s demeanour that he felt conflict inside about the issue of giving a statement. The officer also said that Shire did not say anything else to him at that time.
[22] In his evidence, D.C. Nasser says that when he returned to speak to Mr. Shire, Mr. Shire said “Let’s do this!” D.C. Nasser said he took it from that expression that Mr. Shire wanted to provide a statement. As a result, D.C. Nasser told the other officers that Mr. Shire wanted to give a statement. However, D.C. Nasser also confirmed that he did not participate when that statement was taken, and neither was any recording ever taken confirming the discussions that he had with Mr. Shire in the holding cell area, nor, as evidenced from the content of his notebook to which I previously referred, are there any extensive notations about exactly who said what to whom in the course of D.C. Nasser’s interactions with Mr. Shire.
[23] Notwithstanding those very brief notations, D.C. Nasser also confirmed that he had a “longer conversation” with Mr. Shire than would otherwise be indicated by the extent of the notations in his notebook. He said the first of those discussions was not long but the second one was longer.
[24] D.C. Nasser insisted at the end of his testimony that he did not threaten Mr. Shire nor did he make any offers to him relative to obtaining a statement. He thought Mr. Shire was coherent and had full control of his faculties, and was not under the influence of anything in making the decision that he would provide a statement to the police.
[25] Nevertheless, as noted, D.C. Nasser did not make note of the specific words that were passed or exchanged between himself and Mr. Shire at the time of the encounter, and indeed there is no notation in his notes whatsoever of the times at which any of those encounters took place. He acknowledged, however, that it was a time when he could have recorded what was said between them, but he did not record it, and apart from the limited content of his notes and his firm assertion that he did not provide any threats or inducements to Mr. Shire in order to cause Mr. Shire to agree to provide the statement, he testified that he did not know how much more he could have recalled of what transpired between them.
[26] D.C. Nasser denied defence counsel’s suggestion that he told Mr. Shire that if Mr. Shire gave a statement, then the others would be released. He was adamant that he had not told him any such thing, even though the content of their discussions is not recorded and even though the duration of their encounter and exchange of words is not recorded. His best recollection was that he spoke to Mr. Shire for a period of two to three minutes.
[27] In circumstances such as these, effectively a R. v. W. (D.)-type analysis must be applied on the voir dire. If I believe Mr. Shire’s evidence, or even if I do not believe it, if I am left in a state of reasonable doubt based upon his testimony, then that would require me to rule the state involuntary. However, even if I do not believe Mr. Shire’s testimony and I am not left in the state of reasonable doubt by it, that would not eliminate or shift the burden of persuasion that rests throughout this voir dire to prove beyond a reasonable doubt that Mr. Shire’s statement was made voluntarily.
[28] Let me say that I had some difficulty from a credibility and reliability perspective with the evidence of both Mr. Shire and D.C. Nasser. As I indicated before the court yesterday afternoon, I was disturbed that it appeared that members of Mr. Shire’s family were attempting through facial expressions or movements to assist him in responding to questions that were being asked to him by Mr. Arnold in the course of cross-examination. From a W. (D.) perspective, I find that I was not persuaded to believe the evidence of Mr. Shire.
[29] However, as noted, I also had difficulty with the evidence of Detective Constable Nasser. Frankly, I found him to be less than cooperative in the answers he provided to Mr. Stilman in cross-examination. I found, from my perspective, that a number of questions that should have given rise to simple admissions or denials of the propositions that were put to him instead resulted in obfuscation. That failure to simply respond to questions as asked itself raised suspicion in my mind about his evidence. Further, I was unable to restore my faith in the truth of his testimony for the very simple reason of the inadequacy of his notes and the failure to record the interactions between the accused and himself either at the time that they actually spoke, or subsequently in a subsequent videotape where the content of their prior discussion would be confirmed by the accused on videotape.
[30] Let me turn briefly to the cases I referred to above. Justice McMahon’s decision in Bailey was rendered almost eight years ago. Justice McMahon drew the distinction in that case between a circumstance where the police officers tried to make verbatim notes of what was said between them and the accused, and a circumstance where there was no notation or no subsequent recording to confirm the statement allegedly made voluntarily by the accused. In the former case, even if it was not perfect, he confirmed that the effort of the police officers to make verbatim notes recording what was said between them and the accused was adequate to reassure him that the officers’ evidence that no inducements had been offered in exchange for the statement was correct, and thus that it was a voluntary statement.
[31] In the second case, however, where the accused made an utterance but there was no recording made of what he said nor was he subsequently asked to confirm what he said on videotape, and where there were no notations in the police officers’ notes to that effect, Justice McMahon concluded that he could not determine that the utterance had been made voluntarily, and thus the Crown had not discharged the burden of proof that rested upon it to prove voluntariness beyond a reasonable doubt.
[32] See R. v. Bailey, at paragraphs 15 through 33, and in particular, as per the decision of the Court of Appeal in the leading case of The Queen v. Moore-McFarlane. There, the Court of Appeal specifically states that there is no absolute obligation on the police to videotape every interaction with the accused individual, which of course makes practical sense due to the potential impossibility of recording everything that is said at all times by an accused. Nonetheless, that case also confirms that the court must be suspicious of statements that are not audio- or video-recorded. Moreover, every time the police do not orally or visually record a statement taken in an interview room, or, given today’s technology, fail to digitally record an interaction between an accused person and a police officer, they are putting at risk the admissibility of the statement subsequently made by the accused.
[33] That is so even where that statement is videotaped, when there is no confirmatory evidence and no extensive notations in a police officer’s notes to permit the court to be satisfied to the criminal standard that there was indeed no inducement or offer made to the accused in exchange for the statement that he provided. I make exactly the same point in the Rogers decision in 2009 at paragraphs 27 through 33.
[34] At paragraph 35 in Rogers, I stated as follows:
As in R. v. Badwah, so in this case, the failure of the police to tape record the initial meeting between Detective Constable Fiesser and the accused, or to have a second officer present in that room while the constable was introducing himself and “establishing rapport” with the accused leaves me as the trier of fact in the disadvantaged position of being required to make findings, not only on credibility, but also on what actually transpired, unassisted by independent and objective evidence. Officer Fiesser testified that Halton Regional Police interview rooms were equipped with video capability at the time that he was in the holding cell talking to the accused, and indeed that equipment was located in the room next door. That technology should have been utilized throughout the interview process to my mind, including during the initial period when Officer Fiesser was introducing himself and trying to establish a foundation with the accused for the video statement that was about to be given.
[35] So in my view, as will be plain from these reasons, the fundamental problem on this voir dire arises from the fact that it is the Crown who must meet the burden of proof to a standard beyond a reasonable doubt that the statement provided by the accused was voluntary, and thus reliable, before the statement will be permitted to be introduced into evidence, but as in Badwah and that case, the absence of the use of that technology prevents the court from being able to determine exactly what transpired between the officer and the accused before the videotaped interview commenced.
[36] Before concluding, I would make one other comment relative to the comparison of the evidence of D.C. Nasser and the accused relative to what was said between them. In argument, counsel for the Crown put forward the proposition that Mr. Shire’s statement ought to be accepted as voluntary because it was he who initiated the questions to D.C. Nasser about whether the others would be released if he gave a statement. Officer Nasser simply answers factually that if Mr. Shire accepts responsibility for the sawed-off shotgun, the others will be released.
[37] Of course, the other possible configuration of verbal exchange that could have taken place would have been initiated by D.C. Nasser, with him planting the seed that the others could be released if Mr. Shire or one of the others who had been arrested took responsibility for the presence of the sawed-off shotgun in the garment bag located in the bedroom on the second floor of the townhouse unit.
[38] Defence counsel argued before me that there was no difference relative to offers or inducements, within the tests in Oickle, between those two different versions of essentially the same statement. However, I disagree fundamentally with that position. I do so for the simple reason that in the former case, the initiation of the questions that give rise to the determination to give the statement comes from the accused, not from the officer. I do not accept the proposition as a general matter, that simple factual responses provided by a police officer in response to an accused’s question of what would happen if the accused gave a statement taking responsibility for an offence can reasonably be regarded as an inducement provided by the police officer, notwithstanding that any accused person in a holding cell is necessarily within the control of the police authorities. Consequently, I would not have decided that the statement was involuntary, if the configuration of language that had been used was that put forward by D.C. Nasser.
[39] But therein lies the root problem to which I must return and which to my mind is determinative of the ruling that must be given on this voir dire. In Moore-McFarlane at paragraph 67, Justice Charron emphasized the importance of the trial judge looking to the completeness and accuracy and reliability of the entire record when considering whether or not a statement provided by an accused person is voluntary. At paragraph 67, she stated as follows:
The decision in Lapointe does not stand for the proposition that all issues of accuracy and completeness of recording are left with the triers of fact. Such an interpretation would run contrary to centuries of jurisprudence that require careful scrutiny of the circumstances surrounding the taking of the statement by persons in authority, and in my view, completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown can discharge the heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.
[40] And this, at heart, is the problem in this case that I cannot overcome, notwithstanding that I do not believe the evidence of the accused. While there is no legal obligation on the police to confirm an oral utterance or to record all interactions between police officers and accused persons, the fact is that if they do not do so, they end up risking the statement being ruled inadmissible simply because the record is not complete and there are evident gaps in the evidence, gaps that do not permit the trier of fact to reassure themselves to the requisite criminal standard of proof that the statement is indeed voluntary and thus can be relied upon.
[41] In this case, plainly the failure lies in the inability of the excessively cryptic notations of D.C. Nasser relative to his discussion with Mr. Shire to satisfy me that their exchange indeed took place as he testified. It does not permit the gaps in D.C. Nasser’s recollection to be filled in, gaps which he plainly acknowledged in his evidence, and given that a three- to five-minute discussion between himself and Mr. Shire is reduced to no more than seven lines in his notebook.
[42] In the result, notwithstanding the valiant efforts of the Crown to prove Mr. Shire’s statement was given voluntarily, I am not satisfied on that issue beyond a reasonable doubt and it necessarily follows that the application is dismissed. The statement will not be admissible into evidence. It gives me no joy to reach this conclusion, as I understand that in making this ruling it will be dispositive of the case and prevent the prosecution from continuing. Nonetheless, these cautions have been forthcoming from our courts for over 10 years, so hopefully police authorities will soon take steps to avoid these kind of occurrences and rulings of inadmissibility by making substantially greater use of the amazing recording technology that is available to all of us today, whether from our cell phones, to digital recorders or other recording instruments.
[43] The application is dismissed. I find that the Crown has not established that Mr. Shire’s statement is voluntary beyond a reasonable doubt.
Michael G. Quigley J.
Released: May 23, 2014
COURT FILE NO.: CR-13-50000550-0000
DATE: 20140523
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
MOHAMED SHIRE
Defendant/Respondent
REASONS FOR RULING
Re: Voluntariness of Statement
Michael G. Quigley J.
Released: May 23, 2014
[^1]: https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html, [2000] 2 SCR 3.
[^2]: [2006] O.J. No. 5630 (S.C.J.).