COURT FILE NO.: CRIMJ(F) 113/14
DATE: 2015 09 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Cindy Afonso, for the Crown
- and -
KASONGO-ANDY MUSIKITELE
Laura Giordano, for the Accused
HEARD: January 28, 29, 30 and February 2, 2015
RULING ON VOLUNTARINESS
(These reasons are subject to a non-publication order pursuant to the provisions of s. 517(1) of the Criminal Code.)
TZIMAS J.
THE CHARGE
[1] Mr. Musikitele was charged with importing a controlled substance under the Controlled Drugs and Substances Act. He has pleaded not guilty to the charge.
THE APPLICATION
[2] The Crown brought an application for a ruling on the voluntariness of the statements made by Mr. Musikitele before his arrest at Primary and Secondary Inspection at Pearson International Airport, on June 9, 2013 and after his arrest on June 10, 2013. The Crown would like to introduce Mr. Musikitele’s statements at Primary and Secondary Inspection at trial. The Crown would also like to be in a position to use Mr. Musikitele’s interview with the RCMP in the early hours of June 10, 2013 for the purposes only of cross-examination, should Mr. Musikitele choose to testify. The trial, which was originally scheduled to proceed on January 27, 2015 was adjourned to October 19, 2015. This ruling is binding on the trial judge.
[3] I ruled on the application on February 2, 2015 and concluded that Mr. Musikitele’s statements at Secondary Inspection and in his interview with the RCMP were the product of an operating mind and that they were made voluntarily and without fear, oppression, threat or inducement. In light of the agreement by defence counsel on the voluntariness of the utterances by Mr. Musikitele at Primary Inspection, I did not make a specific ruling, although had that been required, there is no question that the statements would be admissible as the exchange was routine in nature, Mr. Musikitele was not detained and he was not protected against self-incrimination. My conclusion was based on my review and consideration of the evidence on the voir dire, the law and the submissions of counsel. The following are my reasons.
EVIDENCE IN THE VOIR DIRE
[4] The court heard evidence from Border Services Officer Grant Mileson, who was the officer at Primary Inspection at Pearson International Airport, Border Services Officer Kevin Lennox Shung, who was the point officer between Primary and Secondary Inspection, Border Services Officer Eric Cullen, who was at Secondary Inspection, Border Services Officer Soir Kllapi, who assisted Border Services Officer Cullen, RCMP Officer Heather Heggart, and RCMP Officer Huges Dionne, who assisted Officer Heggart.
[5] Officer Mileson, who was the first to testify, said that on the evening of June 9, 2013 he was working at Primary Inspection at Pearson International Airport, Terminal I at booth 18. Mr. Musikitele came to his booth at about 8:46 p.m., and handed up his 311 Declaration Card. His overall interaction with Mr. Musikitele was no more than two to three minutes. Officer Mileson said that he reviewed the card and noticed that the information concerning Mr. Musikitele’s date of departure and the flight number was missing. The officer helped Mr. Musikitele with the flight number and asked him to fill in his date of departure from Canada. When asked about the purpose of his trip, Mr. Musikitele told him that he intended to meet a friend in Barbados but by the time he arrived there, and as a result of a flight delay his friend was not there. Mr. Musikitele said that he had no reason to stay and decided to return to Canada on the next flight back. Mr. Musikitele advised Officer Mileson that he had one piece of luggage.
[6] Although Officer Mileson confirmed that his computer search did not reveal any cautions concerning Mr. Musikitele, he explained that the short duration of the trip and his overall training and experience caused him to suspect that Mr. Musikitele might be importing narcotics. Officer Mileson coded the 311 Declaration Card accordingly.
[7] Apart from this exchange, Officer Mileson said that Mr. Musikitele interacted in a meaningful fashion. The questions he asked Mr. Musikitele were no different than those asked of other passengers and Mr. Musikitele’s demeanour was much like other travellers.
[8] The next witness, Border Services Officer Shung was the point officer at the material times. His interaction with Mr. Musikitele was limited to his referral to Secondary Inspection.
[9] Border Services Officer Cullen was the officer at Secondary Inspection who encountered Mr. Musikitele and who arrested him for smuggling marijuana pursuant to the Customs Act. Officer Cullen used his notes and a narrative to help refresh his memory of the events relating to his encounter with Mr. Musikitele. He said that some of his notes were written as the events unfolded and that some of the notes and his narrative soon after he turned Mr. Musikitele over to the RCMP. Officer Cullen agreed that he did not record his exchange with Mr. Musikitele in a very detailed manner. He also had no recollection of Mr. Musikitele being searched by Officer Kllapi after Mr. Musikitele’s arrest. However, Officer Cullen was firm that he had an independent recollection of his exchange with Mr. Musikitele. He testified that Mr. Musikitele presented at Secondary Inspection shortly before 10:00 p.m., with his passport and his baggage.
[10] Officer Cullen testified that he asked Mr. Musikitele for his travel itinerary. He noticed that the ticket was purchased with a short lead just prior to Mr. Musikitele’s departure from Canada. He also noticed that the return date on that ticket was for a date in July. He then asked Mr. Musikitele for the reason for his early return. Mr. Musikitele explained that he was refused entry to Bridgetown (Barbados) because of his one-way ticket. Mr. Musikitele was unable to reconcile that explanation with the itinerary he presented which had a return ticket and was not one-way. This answer, Officer Cullen explained, struck him as odd and was something that stood out in his memory. The Officer then asked Mr. Musikitele three standard questions about his luggage: a) did the bags belong to him; b) whether he packed them; and c) whether he knew what was in his bags. Mr. Musikitele answered all three questions affirmatively.
[11] Next, Officer Cullen testified that he inspected Mr. Musikitele’s bags. One was a duffle bag and the other was a Pullman-style to verify. He was struck by the number of boxes of granola and Rice Krispie bars which seemed to be products coming from Canada as opposed to Barbados. One of the boxes had a tiny opening. In that box he found packages that were covered in aluminum foil. He removed the aluminum foil and found vacuum-sealed packages. When he broke through one of those packages, he smelled the marijuana and immediately proceeded to arrest Mr. Musikitele for smuggling marijuana. Officer Cullen recorded the time of arrest to be 21:58 p.m.
[12] Officer Cullen said that his next step was to read Mr. Musikitele a caution and his rights. Although he did not have notes of the verbatim exchange, Officer Cullen was firm that he read the caution and rights from the text that is included in the notebooks that the officers use to record their notes. He was also adamant that he had a specific recollection that referenced the marijuana in the reading of the caution but clarified that he could not recall if he pointed to the bags and the packages containing the marijuana as he read the caution.
[13] In response to the reading of the caution and rights, Mr. Musikitele said he understood what he was told and asked to speak to counsel. Officer Cullen also noted that Mr. Musikitele was very upset by the unfolding of events. In an effort to console him, Officer Cullen said that he outlined what would happen next, he reassured Mr. Musikitele that arrangements would be made for him to speak a lawyer and that following that exchange he would be making arrangements for the transfer to the RCMP. Apart from that consoling, Officer Cullen said that there no further discussions or questions concerning the marijuana that was found in Mr. Musikitele’s luggage.
[14] Finally, Officer Cullen testified that he was joined by Officer Soir Kllapi just as he was arresting Mr. Musikitele and reading him the caution and his rights. At 22:00 p.m., Officer Kllapi proceeded to read to Mr. Musikitele a secondary caution. According to his notes, Officer Cullen said that Mr. Musikitele was transferred to a cell around 22:46 p.m., and he was able to speak to counsel at 22:53 p.m. Following the call, Mr. Musikitele was moved to another cell where he remained until 12:41 a.m., when the RCMP officers arrived.
[15] Officer Cullen denied that there was any search of Mr. Musikitele. He said that he did not conduct any search. Nor could he recall anyone else conducting any kind of a search. When he was challenged on this point in cross-examination, and asked if he remembered a disrobement search Officer Cullen hesitated but then insisted that he could not recall anyone else doing so either. He was then challenged about whether he had deliberately left things out of his notes and whether this memory of this investigation was far weaker than he suggested. Officer Cullen said that he was beginning to second-guess himself on the possibility of a disrobement search but he did not want that to be taken to mean that he did something improper or that his memory of the incident was compromised. He said that apart from the suggested five minutes when a search might have occurred, he stood by his recollection of the events that transpired.
[16] The next witness to testify was Officer Kllapi. He said that he joined Officer Cullen just as he was arresting Mr. Musikitele. He recalled that Mr. Musikitele wanted to speak to a lawyer and that the call occurred at 22:55 p.m. He also recalled giving Mr. Musikitele a secondary caution immediately following the reading of the caution and rights by Officer Cullen. He too said that Mr. Musikitele was initially panicky but he calmed down after a few moments. Officer Kllapi also testified that he did a frisk search at 22:05 p.m., and at 22:16 p.m. or so, he assisted Officer Cullen with the search of a blue bag.
[17] Following the call with the lawyer, Officer Kllapi testified that he conducted a disrobement search followed by a cavity search that took all of about two minutes. He said that the search took place in a private room. He said that Officer Cullen was present for the search though it was Officer Kllapi who had the lead on the search. He said that Officer Cullen inspected the clothing as it was removed and then he handed it back. There was nothing of concern from that search. At the conclusion of the search, Mr. Musikitele was transferred to another cell where he remained until 12:41 a.m., when he was transferred to the RCMP. Officer Kllapi said that from 11:00 p.m., when the transfer occurred to 12:41 pm, he checked on Mr. Musikitele at 11:34 p.m., and then at about midnight and Mr. Musikitele looked fine.
[18] In her testimony, RCMP Officer Heather Heggart recounted her involvement with the arrest of Mr. Musikitele for the importation of narcotics. She said that CBSA contacted her supervisor, Constable Gabby about the case at 23:10 p.m., on June 9, 2013. Officer Heggart was assigned to be the lead on the file. She, Officer Dionne and Constable Gabby left for Terminal 1 at 11:48 p.m., and arrived at the cells area at around 12:01 a.m. They met with Officers Cullen and Kllapi and were given an overview of the circumstances of the case. Included in that summary was information about, the discrepancies in Mr. Musikitele’s travel itinerary, when he departed from Canada, why he said he flew to Barbados and passport information. Officers Cullen and Kllapi also showed them the bags and Officer Cullen explained how he went about his inspection of the bags and what he found. Officer Heggart said that she was given Mr. Musikitele’s passport, a cellphone and a password for the phone. She also said that she was told that Mr. Musikitele was given a caution and his rights at 21:58 p.m., and that he spoke to counsel in accordance with his wishes.
[19] Officer Heggart then explained that she arrested Mr. Musikitele under the Controlled Drugs and Substances Act for the importation of cocaine. Within minutes of that testimony, Officer Heggert corrected herself and indicated that the arrest was for the importation of marijuana and not cocaine. Immediately following the arrest, Officer Heggart said that she read Mr. Musikitele the caution and his rights. Although she did not have a verbatim account of this exchange in her notes, Officer Heggart was certain that she gave the caution and rights and that in response Mr. Musikitele indicated that he would very much appreciate if he could speak to counsel. She was also certain that she explained to Mr. Musikitele the difference between an arrest under the Customs Act and an arrest under the Controlled Drugs and Substances Act. The officer did not have a notation of that explanation in her notes, but she said that it is her practice in all cases to introduce herself and to explain the differences between the two arrests.
[20] According to Officer Heggart, she took custody of the drugs and Mr. Musikitele’s personal belongings at 12:41 a.m., and Mr. Musikitele was transferred and lodged in an RCMP cell. A call was put into duty counsel at 12:57 a.m., and Mr. Musikitele spoke to counsel shortly thereafter. Officer Heggart said that she then proceeded to secure the exhibits and worked on paperwork for most of the evening while Officer Dionne dealt with Mr. Musikitele. Finally she said that 3:46 a.m., she served Mr. Musikitele with notice of the minimum mandatory punishment and that at 4:15 a.m., she transferred Mr. Musikitele to the RCMP’s Peel Division detachment for overnight lodging.
[21] Officer Dionne was the last witness to testify in the voir dire. He said that he was assisting Officer Heggart. He also said that he witnessed Officer Heggart giving Mr. Musikitele a caution and his rights though he did not hear the exact words. He recalled that Mr. Musikitele was arrested by Officer Heggart at 12:45 a.m., and that they then transferred him to the RCMP Officers at 12:53 a.m., where he did a basic search of Mr. Musikitele. He recalled removing earrings from Mr. Musikitele and then fingerprinted him. Officer Dionne also recalled that duty counsel, Katherine Jones called in at 1:04 a.m., and that Mr. Musikitele was escorted to a private room at 1:07 a.m., so that he could have his conversation with counsel.
[22] Officer Dionne also testified that he interviewed Mr. Musikitele from 2:33 a.m., until 3:15 a.m. The interview was recorded and the court watched a video of that exchange. Officer Dionne could not recall what occurred in the time between 3:15 a.m. and 3:45 a.m. He recalled however that sometime after 3:45 a.m., and Mr. Musikitele’s transfer to Peel that he went back in to see Mr. Musikitele and he obtained four cell phone numbers from Mr. Musikitele. This interaction was not recorded on tape but in any event, the Crown is not seeking to lead evidence from this particular exchange.
[23] All of the witnesses noted that their exchanges with Mr. Musikitele were cordial, that there was a good flow in their respective conversations, that Mr. Musikitele was responsive and that at no time were there any threats, inducements, promises or physical or mental distress that would have affected his ability to decide whether to make or refrain from making any statements.
POSITION OF THE PARTIES
[24] The Crown submitted that the three statements that were given by Mr. Musikitele were made voluntarily. His statements both before and after his arrest were the product of an operating mind, made voluntarily and without fear, oppression, threat or inducement. Even with some deficiencies in the memories and notes of some of the officers involved, the Crown submitted that against the full context and the particular facts as they unfolded on the late evening of June 9 and into the early hours of June 10, 2013, it satisfied the burden of proving beyond a reasonable doubt that Mr. Musikitele’s statements in question were voluntary and should be admissible at his trial.
[25] Counsel for Mr. Musikitele conceded that Mr. Musikitele’s answers to the questions he was asked at Primary Inspection were voluntary and are admissible at trial. However, counsel challenged the voluntariness of Mr. Musikitele’s statements both at Secondary Inspection and in his interview with the RCMP. Counsel contended that the Crown failed to satisfy the court beyond a reasonable doubt that the subject statements by Mr. Musikitele were voluntary.
[26] At Secondary Inspection, counsel submitted that Mr. Musikitele was detained by the Canada Border Services Agency (CBSA) as soon as he approached the Secondary Inspection and should have been cautioned and read his rights before the Border Services Officer asked him any questions at all. In addition or in the alternative, counsel argues that the Border Services Officer’s difficulties with his memory of certain details concerning his exchanges with Mr. Musikitele were so grave that it put into question everything about that Officer’s evidence as it related to his exchange with Mr. Musikitele, including his assessment of Mr. Musikitele’s operating mind, the subject of promises, inducements and the existence of an oppressive atmosphere, as well as the reliability, at a very fundamental level, of Mr. Musikitele’s answers to his questions.
[27] Regarding the voluntariness of Mr. Musikitele’s statement to Officer Dionne of the RCMP, defence counsel suggested that the assessment of that statement was clouded by the alleged deficiencies at Secondary Inspection. Moreover, counsel contended that the evidence as to whether Mr. Musikitele received the appropriate cautions from the RCMP was questionable. Officer Dionne testified that he observed his colleague speaking to Mr. Musikitele but he could not hear what she said. Counsel raised additional questions as to whether by virtue of Officer Dionne’s introductory remarks during his interview with Mr. Musikitele he may have undermined the caution, if such was given. In the result, counsel raised concerns that Mr. Musikitele failed to appreciate his double jeopardy in giving his statement to Officer Dionne.
ANALYSIS
[28] The court’s obligation on a voluntariness voir dire application is to undertake a contextual analysis and to consider all of the circumstances surrounding the making of all of the alleged statements to determine whether the Crown has established beyond a reasonable doubt that the statements in question were made voluntarily. For statements to be found to be voluntary, the Crown must satisfy the court beyond a reasonable doubt that the accused had an operating mind, that the statements were not the result of any threat or improper inducement, and that there was no atmosphere of oppression, see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.
[29] In this case, the consideration of Mr. Musikitele’s utterances at Secondary Inspection and the RCMP interview and their respective admissibility attract separate considerations as each occurred under different circumstances. Each is therefore dealt with separately below.
Statements at Secondary Inspection
i. Was Mr. Musikitele Detained at Secondary Inspection?
[30] The Court of Appeal in R. v. Jones, [2006] O.J. No. 3315 made it clear that routine questioning and inspection of luggage at the border does not result in a detention, give rise to any right to counsel, or interfere with a traveller’s reasonable expectation of privacy. The Court noted further at para. 40 that:
In a general sense, everyone who is questioned at the border and whose luggage is examined is the target of an investigation. Questions are asked and routine searches conducted to find individuals who are in breach of border-related laws. It only makes good sense that those responsible for enforcing border regulations will focus their routine questions and searches on persons who have for some reason attracted their interest. In my view, the mere fact that a person attracted the suspicion of a Customs official, thereby causing that official to ask routine questions and conduct a routine search, should not give that individual any enhanced constitutional protection against self-incrimination.
[31] In contrast to the Court’s direction and in an effort to distinguish Mr. Musikitele’s situation from the analysis in Jones, defense counsel relied on R. v. Harripersad, [2001] O.J. No. 3639 to argue that the coding from Primary Inspection amounted to an express targeting and by implication his attendance at Secondary Inspection was not as a result of a random selection but amounted to a detention, for which Mr. Musikitele should have been afforded all of his rights.
[32] Insofar as the issue of detention is concerned, I find that the facts surrounding Mr. Musikitele’s exchange at Secondary Inspection fall squarely within the situations anticipated and described by the Ontario Court of Appeal in Jones. I find that Mr. Musikitele’s departure and return dates attracted the suspicion of Officer Mileson at Primary Inspection and caused him to code the Declaration Card accordingly. At Secondary Inspection, I find that Officer Cullen’s questions and search were routine. Officer Cullen did not go beyond routine questioning or engage in any intrusive form of inquiry that could then amount to a detention, see Jones at para. 42. As in R. v. Sahota [2009] O.J. No. 3519, I find that until Officer Cullen opened the vacuum-sealed packages and smelled the marijuana, Mr. Musikitele was not the target of any criminal investigation. He was the subject of the kind of routine scrutiny that all travellers to Canada can expect.
[33] Also as in Sahota, Officer Cullen did not have any specific information that would link him to particular offence. The coding from Primary Inspection was nothing more than a suspicion, and something less than a tip that Mr. Musikitele may be carrying narcotics. But without any further specificity to assess the reliability of the suspicions from Primary Inspection, it cannot be said that the coding, in and of itself, amounted to a “sufficiently strong particularized suspicion” sufficient to constitute a detention. The information changed dramatically only after Officer Cullen searched Mr. Musikitele’s bags and found the marijuana.
[34] In the result, I find that up until the discovery of the marijuana and Officer Cullen’s subsequent and immediate actions, Mr. Musikitele was not detained and his answers to the routine questions are admissible evidence for trial.
ii. Officer Cullen’s Notes and the Reliability of His Memory as it Impacts on the admissibility of Mr. Musikitele’s statements at Secondary Inspection.
[35] Even with a finding that Mr. Musikitele was not detained at Secondary Inspection, the defence argued that Officer Cullen’s memory of his interaction with Mr. Musikitele was so flawed that it gives rise to fundamental and grave problem with the reliability of the statements attributed to Mr. Musikitele. In the result, the prejudicial value of admitting the evidence would outweigh its probative value and no instruction to the triers of fact could manage that effect. In support of this argument, counsel highlighted: a) Officer Cullen’s inability to recollect any type of search of Mr. Musikitele, which Officer Kllapi said he conducted in Officer Cullen’s presence; b) cursory notes of the evening’s events that did not record the dialogue between Officer Cullen and Mr. Musikitele as it occurred; and c) his failure to make any mention of removing a cellphone and obtaining a password from Mr. Musikitele. Grounded on these deficiencies, the defence wondered whether there was anything else Mr. Musikitele could not remember. The defence went further to suggest that the gaps in Officer Cullen’s notes and his memory were sufficient to raise doubts as to whether in fact the interaction with Mr. Musikitele was free of oppression, threats, inducements, and/or promises. The defence went as far as to suggest that those doubts extended to doubts over Mr. Musikitele’s frame of mind as he was transferred from the CBSA to the RCMP, so much so that they also tainted the voluntariness of Mr. Musikitele’s statement to the RCMP.
[36] Although I noted Officer Cullen’s somewhat flustered reaction during cross-examination on the subject of his inability to recollect the disrobement search of Mr. Musikitele, I do not consider a lapse in his memory that corresponds to two minutes out of his overall engagement with Mr. Musikitele to amount to a grave omission such that it would put his whole recollection and by extension his testimony into question. I also note that Officer Cullen did not conduct the search; Officer Kllapi testified that he was standing just outside the room where the search occurred. That could explain the lapse in memory.
[37] Similarly, the lack of verbatim notes by Officer Cullen does not put into question the reliability of his evidence. Officer Cullen had sufficient details to aid him with his recollection of his interaction with Mr. Musikitele. Mr. Musikitele’s answer to each question informed Officer Cullen’s next question and the sequence of events. That sequence had a logical flow to it and was informed by Mr. Musikitele’s preceding answer. In addition, having regard to the context of this case, the manner in which events unfolded, the steps that Officer Cullen said he took, and the corroboration of those steps in the respective evidence of Officers Kllapi and Heggart, I am satisfied that the statements attributed to Mr. Musikitele, by Officer Cullen were not so lacking in context that an exclusion would be warranted. This finding does not preclude the defence from challenging Officer Cullen on the accuracy or completeness of the words he attributed to Mr. Musikitele. It will then be up to the jury to decide what, if any, weight to give to Officer Cullen’s evidence, see R v. Menezes, [2001] O.J. No. 3758 (S.C.J.), Sahota, supra., at para. 28, R v. Brown, 2014 ONSC 7096, [2014] O.J. No. 5995, and R v. Molina, [2012] O.J. No. 4892.
[38] On the suggestion that doubts over Officer Cullen’s interaction with Mr. Musikitele raised doubts over the existence of oppression, threats, promises, or inducements, the defence invited this court to speculate without any evidentiary foundation. In addition to my preceding finding that Officer Cullen did not commit any grave omission, there was not even an inkling of evidence to support the defence’s contention. To the contrary, the evidence before the Court suggested the opposite conclusion. The events that unfolded were methodical, the pace was not rushed, and Mr. Musikitele was afforded his right to speak to counsel. Moreover, there was no evidence before the Court by anyone, including Mr. Musikitele to contradict the testimony of all the Crown witnesses on this particular issue. By extension, there is no basis for a finding that there was something untoward in Mr. Musikitele’s interaction with Officer Cullen that tainted the atmosphere going into his subsequent interaction with the RCMP.
iii. The Voluntariness of the RCMP Interview
[39] There is no question that Mr. Musikitele’s interview with the RCMP attracts a voluntariness inquiry. The onus rests on the Crown to establish beyond a reasonable doubt that statements made by an accused to any persons in authority be voluntary before they can declared admissible. The Court’s analysis is highly fact-specific. Moreover, in assessing voluntariness, the court must keep in mind the twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes. In the assessment of the police’s conduct and its effect on the defendant in question, the relevant factors for consideration include threats or promises, inducements, oppression, and the requirement of an operating mind.
[40] As previously noted, there was no evidence before the court of any threats, inducements, or promises to Mr. Musikitele. Nor was there any evidence to suggest that there was oppression or that Mr. Musikitele did not have an operating mind.
[41] I am also unable to agree with the defence’s attempt to put into question Officer Heggart’s giving of the caution and rights to Mr. Musikitele when she arrested him. Nor can I conclude that Officer Dionne’s somewhat flawed explanations at the beginning of his interview with Mr. Musikitele compromised Mr. Musikitele’s operating mind or otherwise impacted on his understanding of the potential jeopardy of speaking to the police. I say this for the following reasons.
[42] First, insofar as Officer Heggart’s recollection and her notes are concerned, in my review of her evidence, I accept that she read to Mr. Musikitele the caution and his rights. Her failure to record her exact words are not fatal to the consideration of this issue. Officer Dionne saw Officer Heggart administer both the caution and the rights. The fact that he did not hear her words is also not fatal since he was standing just outside and saw her actions. More significantly, Mr. Musikitele told Officer Heggert that he wished to exercise his right to contact counsel and that was arranged. That arrangement is consistent with the inference that Mr. Musikitele would have been told about his additional right to counsel, (since he had previously spoken to counsel pursuant to his arrest at CBSA), before he made the request.
[43] Second, in my review of the interview, the interaction between Officer Dionne and Mr. Musikitele was very cordial and unoppressive. Apart from Mr. Musikitele’s initial indication that he would prefer if he did not have the interview recorded, Mr. Musikitele was very co-operative and talkative. For his part, Officer Dionne was very relaxed and non-threatening. I agree with defence counsel that Officer Dionne’s response with respect to the recording of the interview and his explanation for why such interviews had to be recorded was incoherent and unclear. However, on a close read of what Officer Dionne said, he did not contradict or otherwise compromise the original caution that was read to Mr. Musikitele when Officer Heggart arrested him. I am unable to conclude that Mr. Musikitele’s operating mind was somehow compromised or that he did not understand the jeopardy in speaking to Officer Dionne.
[44] I acknowledge that defence counsel “commended” to the court R. v. Moore-McFarlane, [2001]O.J. No. 4646 with respect to the flaws that she said raised reasonable doubts over the voluntariness of Mr. Musikitele’s statements in the interview. With respect, that case addresses deficiencies relating to the recording of statements. There was no such difficulty in this case. Insofar as the defence suggested that Officer Dionne ought to have started his interview by repeating the caution and rights, so as to have it on the record, I do not find that his failure to do so to be fatal to the assessment of the voluntariness of Mr. Musikitele’s statement.
[45] Finally and most significantly, Mr. Musikitele’s own comments about wishing to tell his story in the face of the cautions he said that his own counsel gave him to remain silent are most telling of Mr. Musikitele’s state of mind and his understanding of his rights. In the course of the interview with Officer Dionne he said: “the counsel on the phone made sure I tell you that I should not ah I don’t talk, but I, it’s so in me and I don’t feel guilty so you know.” He then continued to say: “I’m just not afraid to tell the story”. When considering these comments against the overall context of the evening’s events, Mr. Musikitele’s demeanour and the tone in his exchange with Officer Dionne, and his opportunity to consult counsel twice that evening, both while at the CBSA and then after he was arrested by the RCMP, I am satisfied beyond a reasonable doubt that Mr. Musikitele’s interview with the RCMP was voluntary and is admissible at trial.
CONCLUSION
[46] In light of the above, Mr. Musikitele’s statements to Secondary Inspection are admissible separate and apart from any consideration of voluntariness, as they were taken at a point in time when Mr. Musikitele was not detained and would not have been protected against self-incrimination. Any concerns with the accuracy of those statements may be tested by the defence and it will then be up to the jury to decide what, if any, weight to place on those statements.
[47] Mr. Musikitele’s statement to the RCMP was the product of an operating mind. It was made voluntarily without threat, promise, inducement or oppression and is therefore admissible.
TZIMAS J.
Released: September 24, 2015
COURT FILE NO.: CRIMJ(F) 113/14
DATE: 2015 09 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KASONGO-ANDY MUSIKITELE
RULING ON VOLUNTARINESS
TZIMAS J.
Released: September 24, 2015