ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-70000832
DATE: 20141218

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RUKIYO OMAR

Defendant

J. Pollard and B. Clendenning, for the Crown

N. Wansbutter, for Rukiyo Omar

HEARD: October 21, 22, 22, 23, 24, 27, 28, and 30, 2014

molloy j.:

REASONS FOR JUDGMENT

A. BACKGROUND and OVERVIEW

[1] Rukiyo Omar was originally charged together with two other accused. At the conclusion of the pre-trial motions involving all three accused, I ordered the severance of the charges against Ms Omar.[^1] She then re-elected to be tried by me without a jury.

[2] The charges against Ms Omar are as follows:

• Count 1: conspiring to traffic in a firearm
• Count 2: possession of a Ruger handgun (found in a townhouse upon execution of a search warrant)
• Count 3: possession of the Ruger knowing its serial number had been defaced;
• Count 4: possession of proceeds of crime (approximately $10,000 found in a townhouse upon execution of a search warrant)
• Count 5: possession of proceeds of crime ($1,600 found in her purse at the time of her arrest)
• Count 6: possession of a handgun for the purpose of trafficking (relating to Count 1)
• Count 7: conspiracy to traffic in cocaine

[3] Ms Omar pleaded not guilty to all charges. The Crown presented its case, largely dependent upon wiretaps and surveillance with respect to the conspiracy charges and to connecting Ms Omar to the townhouse in relation to the gun and cash found there upon execution of the search warrant. The defence did not present any evidence.

[4] Prior to severance, one of the other accused challenged the validity of the search. Ms Omar took no position as she did not assert standing. For reasons dated November 28, 2014, I found the evidence obtained from the search warrant to be admissible.[^2]

[5] The Crown conceded that there was no evidence with respect to the source of the cash found in Ms Omar’s purse and therefore no basis for concluding that this was proceeds of crime. I therefore entered a finding of not guilty on Count 5.

[6] There was no evidence of any actual knowledge or ownership by Ms Omar in respect of the gun or cash found in the townhouse. For the reasons that follow, I am not satisfied beyond a reasonable doubt that Ms Omar had sufficient control over the premises at which the gun and cash were found to put her in possession of them. Therefore, I find her not guilty on Counts 2, 3 and 4.

[7] I am satisfied beyond a reasonable doubt that a woman known as “Kia” was a party to a conspiracy to traffic in cocaine, and also to traffic in a handgun. Further, I am satisfied that the person known as Kia is in fact the accused Rukiyo Omar. Therefore, I find Ms Omar guilty under Counts 1, 6 and 7. My detailed reasons follow.

B. WHO IS “KIA”?

[8] There are numerous wiretap interceptions in which a woman known as “Kia” discusses drugs and guns with Mr. Arviko. The Crown’s case against Rukiyo Omar on the conspiracy charges depends on whether I am satisfied beyond a reasonable doubt that she is Kia. Unless Kia and Rukiyo Omar are one and the same, there is no case against her on these charges. There is no direct evidence as to Kia’s true identity, but many pieces of circumstantial evidence pointing in the direction of Rukiyo Omar.

Voice Recognition

[9] In five of the intercepted phone calls, Mr. Arviko addressed the woman to whom he was speaking by the name, Kia. It is clear upon listening to all of the phone calls attributed to Kia that it is the same voice each time. Not only is the voice recognizable, but there is continuity in the type of language, the general manner of speaking, and the subject matter of the calls.

[10] In five of the intercepted phone calls, Mr. Arviko addressed the woman to whom he was speaking by the name, Kia. It is clear upon listening to all of the phone calls attributed to Kia that it is the same voice each time. Not only is the voice recognizable, but there is continuity in the type of language, the general manner of speaking, and the subject matter of the calls.

[11] The main difficulty with the Crown’s position is that the statements given by Ms Omar to D.C. Tamayo have already been found to be inadmissible. Ms Omar brought a pre-trial motion to exclude her statements as having been obtained in breach of her right to counsel under s. 10(b) of the Charter of Rights and Freedoms. That motion was argued before MacDonnell J. on June 3, 2014. On June 11, 2014, MacDonnell J. issued his written decision, holding that: Ms Omar had invoked her right to counsel and had not been given an opportunity to speak to a lawyer prior to being questioned; all of Ms Omar’s statements were obtained in a manner that infringed her s. 10(b) rights; the infringements were serious; the impact on the rights of the accused was significant; and, admitting the statements into evidence would bring the administration of justice into disrepute. He, therefore, held that the statements were not admissible at trial.[^3] The question that arises is whether the statements made by Ms Omar, although inadmissible for their content, can nevertheless be used for the purposes of voice identification.

[12] I am not aware of, and was not directed to, any case law squarely on point. However, there are a number of trial level decisions dealing with similar issues, which are quite helpful.

[13] A somewhat similar issue arose in the Saskatchewan Queen’s Bench decision of R. v. Youkhana.[^4] In that case, Mr. Youkhana had been detained and had not been advised of his right to counsel. The police suspected he was the person they heard on wiretaps speaking Assyrian and wanted to confirm that suspicion. They arranged for an interpreter to listen to the wiretaps. Then, while Mr. Youkhana was under detention, the police directed him to speak privately with the interpreter in Assyrian, which he did. At trial, the Crown sought to call the interpreter to testify that the voice of Mr. Youkhana was the same as the voice he had heard on the wiretaps. Laing J. ruled that this evidence was not admissible as it was obtained in breach of Mr. Youkhana’s s. 10(b) rights under the Charter. The case is somewhat different from the one before me because the police acted deliberately in obtaining this conscripted evidence from Mr. Youkhana while he was under detention. However, I believe the same general principles apply. A statement made by an accused in breach of his s. 10(b) rights is inadmissible for purposes of voice identification on the same basis as would be the case for the subject matter of the statement itself.

[14] In R. v. Mac and Wong,[^5] Feldman J. (as she then was) dealt with a situation in which two accused persons were under arrest and had not been properly advised of their s.10(b) right to counsel. An officer then spoke to the accused and asked some general questions of an administrative nature for the purpose of hearing and identifying their voices. Feldman J. noted the distinction between voice identification and other types of identification, stating at para. 78:

Although voice identification is of course a form of identification, similar to visual looks and fingerprints, the difference is that s. 7 of the Charter gives a constitutional right to remain silent, which means that an accused may choose to say nothing, and indeed, if a lawyer is aware that voice identification is an issue in the case, the lawyer's advice may be for the accused to remain silent. Having said that, there will inevitably be practical difficulties with exercising the right, especially if someone is in custody for an extended period, but that is not an issue in the case at bar.

[15] In that case, Feldman J. excluded the voice identification evidence on the grounds that the accused had not had an opportunity to speak to counsel and be advised of the full implications of their right to remain silent. Accordingly, she found that the voice identification evidence was obtained in breach of their Charter rights and must be excluded as it would affect the fairness of their trial.

[16] This principle was also followed by Sharpe J. (as he then was) in R. v. Rendon,[^6] a case in which police officers advised three accused persons of their constitutional rights in the presence of a person who had been a wiretap monitor. The purpose of having the monitor there was so that a person familiar with the voices on wiretaps could identify the voices of the accused persons as being the same as those on the intercepted calls. Sharpe J. agreed with the reasoning of Feldman J. in Mac and Wong, noting (at para. 90):

In my view, identification of a voice is not a matter of identification of the raw, physical quality of sound emanating from the person identified. The identification of a voice of a particular individual is inextricably bound up with the way that individual expresses himself or herself. It would be made on the basis of the rate and flow of speech, articulation, tone, accent, intonation, language and structure adopted. It is essentially an assessment of the individual's manner of oral communication and expression, and therefore is quite unlike other forms of identification and does implicate the right to silence.

[17] Sharpe J. ruled that the police obtained this evidence in breach of the Charter and was not admissible. He stated at para. 79:

I find the procedure followed by Henderson in this case constituted a clear denial of the accused's s. 10(b) right to counsel. To permit the authorities to use the very process of complying with the s. 10(b) duty to advise the detained person of his or her right to counsel to gain incriminating evidence, in my view, strikes at the very heart of s. 10(b) and constitutes a flagrant breach of the constitutional right to counsel.

[18] Before me, the Crown sought to rely upon the decision of the Newfoundland Court of Appeal in R. v. Meyers.[^7] In that case, voice identification evidence was held to be admissible. However, I would distinguish that case on its facts. The evidence of the officer who was making the voice identification in that case spoke to the accused for the purpose of processing after the accused had been fully advised of his right to counsel. It was on this basis that the Court of Appeal found there was no violation of s. 10(b). That is not the situation before me.

[19] In this case, Ms Omar had asked to speak to counsel and had not been afforded an opportunity to do so. All of her statements to Officer Tamayo were obtained in breach of her s. 10(b) right to counsel. In my opinion, once the statements are found to be inadmissible as having been obtained in breach of Ms Omar’s constitutional rights, they are inadmissible for the purpose of voice identification as well. If the actual words she spoke cannot be used against her at trial, I can see no reasonable basis for concluding that the voice she used in uttering those words can be used to convict her. The officer should not have been speaking to her. If he had respected her constitutional rights, he would have no basis for comparing the voice of Kia to that of Ms Omar. His knowledge of the nature of her voice was obtained in breach of her rights. The very same principles apply as were articulated by MacDonnell J. in his decision, and by the trial judges in Rendon, and Mac and Wong. The voice identification evidence of Officer Tamayo is not admissible.

[20] There was no other evidence tendered with respect to the identification of the voice of Kia. Therefore, Ms Omar cannot be tied to these phone calls based on her voice alone.

F. CONCLUSION

[95] Accordingly, for the reasons stated above, I have reached the following verdicts:

Count 1: Guilty (conspiracy to traffic in firearm)

Count 2: Not Guilty (possession Ruger firearm)

Count 3: Not Guilty (possession Ruger firearm with defaced serial number)

Count 4: Not Guilty (possession proceeds over $5000)

Count 5: Not Guilty (possession proceeds under $5000)

Count 6: Guilty (possession firearm for the purpose of transfer)

Count 7: Guilty (conspiracy to traffic in cocaine)

MOLLOY J.

Released: December 18, 2014