ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Lambe, 2015 ONSC 711
COURT FILE NO.: CR-136/13
DATE: 2015-01-30
B E T W E E N:
HER MAJESTY THE QUEEN
Amber Lepchuk, for the Crown
- and -
ABDYL LAMBE
Anser Farooq, for the Defendant
HEARD: January 28 and 29, 2015
RULING
M. J. Donohue, J.
[1] The Crown seeks to enter as evidence the video taped statement of the defendant, Abdyl Lambe, taken in the afternoon of his arrest. A Voir Dire was held to determine the voluntariness of the statement and whether the Charter rights of the accused guaranteed by s. 10(a) and (b) have been violated, such that this evidence should be excluded. At the end of the evidence, the Charter application was withdrawn.
FACTS
Behaviour by the Police
[2] Evidence was given by Officer Morrow that he advised the defendant he was arrested for luring and invitation to sexual touching. He read the standard summary of the Charter of Rights regarding rights to counsel and the right to remain silent. He stated that he showed what he was about to read to the defendant from his notebook and then read out the rights to the defendant while leaning into the police vehicle from outside.
[3] He testified that the defendant understood the rights, although he did not make a note of that in his records.
[4] He testified that the defendant stated he did not have a lawyer and he did not need one. Officer Morrow said he would call duty counsel for him in any event. He did not read the secondary caution, as he believed he was the first officer speaking with the accused.
[5] Mr. Lambe testified that he was only in the McDonalds about 25 seconds before he was arrested and taken outside. He was put inside a van with an officer. He recalls that he was told he was arrested for luring and for “doing sex with a child this and that”. He said the officer abused him by asking him if he was ashamed of doing this with a 14 year old. Mr. Lambe said that hearing the charges and such comments made his mind go blank. He does not remember if he was read his rights or not. He agreed it was possible that his rights were read.
[6] Within 15 minutes, Officer Galvao arrived to transport the defendant to the police station. He testified that he put his set of cuffs on the defendant and sat him in the rear of his cruiser. The officer sat in the driver’s seat, half turned to the defendant, and read the rights to him. He stated that he advised the defendant that he was under arrest for luring. He stated that, after each right was read, he looked and asked the defendant if he understood. He then noted the defendant’s positive responses to each question in his notes.
[7] The defendant testified that he does not remember whether Officer Galvao read him his rights or not. He says that his mind was “a blank”. Again he agreed it was possible his rights were read.
[8] Constable Kolbak booked the defendant in. She arranged for a private room for him to speak to duty counsel. She believes he spoke with duty counsel for three minutes.
[9] The defendant confirmed in his testimony that he spoke with duty counsel.
[10] The defendant stated that he was under psychological pressure. He stated that he is from India and later lived in Saudi Arabia. He stated that the police there are the worst in the world. He admitted, however, that neither he nor anyone in his family had ever been arrested in these countries. He had been living in Canada for ten years. He had an MBA from India and is a CGA in Canada.
[11] When the defendant was in the cells, he confirms that he was asked if he needed anything to eat. He asked for a vegetarian meal. He confirms he received this and ate it before he was taken to the room for questioning.
[12] The videotape evidence shows the defendant with Officer Carretta. Within the first few minutes, the defendant confirmed to Officer Carretta that no officer has beaten or threatened him. He confirmed he had spoken with a lawyer, being duty counsel.
[13] Officer Carretta stated that the conversation was videotaped. He pointed to where the camera was. He stated that he only wanted the defendant to speak if the defendant wanted to talk.
[14] The conversation took place in English. The defendant did not ask for clarification or indicate that he did not understand the language. Some of his answers are inaudible. The defendant’s answers were not always clear, and this was an indication that his speech in English was not particularly good. However, there is no indication that understanding the language spoken to him was a problem.
[15] At the beginning of the questioning the defendant inquired, “So, now then I cannot apply for any government job, right?”
[16] After background information was taken, Constable Carretta stated that the defendant was under arrest for talking with a person under 16 years of age on a computer, and because he wanted to have sex with her and showed up that day bringing condoms with him. He was told that he was also charged with attempted sexual invitation.
[17] After stating these charges, the officer left the room for roughly ten minutes to allow the defendant to think about whether he wanted to talk with an officer or not. The officer said, “So I’m gonna step out, okay. I’ll be right back. And, uh, if you wanna talk to me me, fine. If not, that’s okay too.”
[18] The defendant appeared relatively calm. He appeared to understand that he was being questioned about allegations of involvement with a 14 year old, conversing with her via the internet, and meeting her that day for the purpose of engaging in sexual activity.
[19] Officer Carretta, during the questioning, stated that if the defendant was just going to lie then the officer would leave. Several times he asked the defendant to not speak and to listen to the question before answering.
[20] The nature of the defendant’s responses was not at all consistent with his allegation of being psychologically pressured. Rather, he gave spirited responses and questioned the officer as to why what he had done could be considered an offence or a wrong. He did not present as being intimidated.
[21] The video statement initially showed a very cooperative exchange of information between Constable Caretta and the defendant. The officer’s voice was raised as the questioning continued when the officer considered that the answers being given were not truthful, i.e. lies.
[22] Mr. Lambe did not make any remark of being physically uncomfortable, nor did he appear so. At times he appeared stressed by the questions, but, as noted above, he gave spirited replies to the questions.
[23] Ultimately he chose not to answer further questions and the questioning ended.
[24] The defendant was arrested that morning at 11:52 and first read his rights by Officer Morrow. He was brought in to the questioning room at 12:55 p.m. The questioning ended at 14:31 and he was taken from the room at 14:41. This is a total period of questioning of 2 hours and 36 minutes, including the breaks when Officer Carretta left the room. Officer Carretta did most of the questioning until 14:15. Officer Santoro questioned from 14:20 until 14:31, a period of 11 minutes.
[25] The defendant agreed that the video taped statement is an accurate tape of what was said in that room. He stated that he was not in a right state of mind when he answered.
[26] The defendant cannot point to anything the police did that was oppressive, apart from the shock of being told the charges and hearing the disparaging remark by Officer Morrow, “aren’t you ashamed of doing this with a 14 year old girl.”
THE LAW
[27] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada stated :
because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness….. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes… oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. (at para 68)
[28] The Supreme Court is clear that,
a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rules discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. (at para. 71)
[29] The Supreme Court considered the requisite degree of mental competence required to make voluntary statements in R. v. Whittle 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914:
The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused. (at para 50)
POSITIONS OF THE PARTIES
[30] The Crown argued that, looking at all the circumstances, there can be no doubt that the statement was voluntary and reliable. There were no threats, promises, or inducements that would suggest the defendant’s will was overborne.
[31] Defence counsel referred to the case of R. v. Somogyi, 2010 ONSC 5585, [2010] O.J. No. 5797, which reviewed the law on the voluntariness of statements, emphasizing that the application of the rule is contextual, and that all of the relevant factors in the facts of each case must be considered. The defence argued that the raised voices in questioning amounted to oppression near the end of the statement. He argued that the court might use its discretion to exclude part of the statement on that basis.
ANALYSIS
[32] Reviewing all the facts, I am satisfied that the defendant was not mistreated in this case and was not offered any inducements strong enough to raise a reasonable doubt as to the voluntariness of his statement. The officers’ raised voice near the end of the questioning was not pleasant, but it was more an expression of frustration with the defendant not answering the questions asked. I do not find that his raised voice amounted to oppression, particularly as the defendant, in his testimony, did not even mention it.
CONCLUSION
[33] The defendant was cautioned on his rights to remain silent by two officers. Constable Carretta set out the charges clearly and told the defendant that he could talk only if he wanted to.
[34] On a careful review of the video tape statement, I am satisfied beyond a reasonable doubt that his cognitive capacity was not impaired, and that he was not subject to any oppression such that his will was overborn.
[35] Accordingly, I am satisfied beyond a reasonable doubt that the videotaped statement was voluntary. I find the statement to be admissible in evidence.
M. J. Donohue, J.
DATE: January 30, 2015
CITATION: R. v. Lambe, 2015 ONSC 711
COURT FILE NO.: CR-136/13
DATE: 2015-01-30
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: R. v. Abdyl Lambe
BEFORE: M.J. Donohue, J.
COUNSEL: Amber Lepchuk, for the Crown
Anser Farooq, for the Defendant
RULING
M.J. Donohue, J.
DATE: January 30, 2015