ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

COURT FILE NO.: 12-40000810-0000
DATE: 20151118

B E T W E E N:

HER MAJESTY THE QUEEN

B. Stagg, for the prosecution

• and -

KENDALL KAMAL

A. Abbey, for the defence

HEARD: November 16 & 17, 2015

Nordheimer J. (orally):

1Kendall Kamal challenges the admissibility, at this trial, of a videotaped statement made by him to the police on the basis that the statement was not made voluntarily or was obtained in a manner that violated his rights under the Canadian Charter of Rights and Freedoms, specifically ss. 7 & 10. The Crown bears the onus of establishing that the statement was made voluntarily whereas the defence bears the onus of establishing any alleged Charter violation.

2While there are some subsidiary issues raised, the principal issue is whether Mr. Kamal’s right to remain silent was breached in the course of a videotaped interview conducted of him by two officers from the Toronto Police hold-up squad, particularly in their failure to allow Mr. Kamal to speak with counsel before the interview took place. In the course of this voir dire, I heard from the Det. Stinson, who was the lead investigator from the hold-up squad, and who led the interview of Mr. Kamal. I also heard from Mr. Kamal.

3On May 25, 2011, Mr. Kamal was arrested at his parents’ home, where he lived, by the Peel Regional Police on a charge of murder. Concurrent with the arrest, search warrants were executed at the home both by officers of the Peel Regional Police Service and by officers of the Toronto Police Service. As it happened, in addition to the Peel homicide investigation, Mr. Kamal was also being investigated by the Toronto Police hold-up squad in connection with a series of armed robberies that had taken place in Toronto. Mr. Kamal was read his rights at the time of his arrest by the officers from Peel Regional Police. Mr. Kamal was transported to a Peel Regional Police division and placed into an interview room. Officers from the Peel Regional Police homicide squad interviewed Mr. Kamal. Mr. Kamal was again read his rights. Mr. Kamal was also put into contact with duty counsel. Following that, Mr. Kamal was interviewed by the homicide officers for a number of hours.

4At the conclusion of that interview, Mr. Kamal was left alone in the interview room. A short time later, two officers from the Toronto Police hold-up squad, Det. Stinson and Det. Cst. McDonald, came into the room. The officers told Mr. Kamal that they were investigating twelve robberies and that Mr. Kamal would be charged with two of those robberies. The officers read Mr. Kamal his rights again. They asked if he wanted to speak to counsel. The following exchange then took place:

STINSON: Okay, do you wish to call a lawyer right now?

KAMAL: I, I guess so I don’t I don’t even--- wait, wait hold on one second---

STINSON: Yeah.

KAMAL: ---this is for something---

STINSON: Unrelated to whatever Peel is investigating you for, their Homicide. This is unrelated, this is from some--- this is a Hold Up investigation, robberies.

KAMAL: Okay.

STINSON: Okay so again, you understand your right to call a lawyer if you choose to do so?

KAMAL: Yes.

STINSON: Okay so if you wanna call a lawyer you let me know?

KAMAL: Okay.

STINSON: Okay do you understand that?

KAMAL: Yes.

5As I have mentioned, a principal submission of the defence is that the ensuing statement was not made by Mr. Kamal voluntarily and, in any event, the taking of the statement violated his Charter rights. It is contended that, in the exchange I have set out, Mr. Kamal indicated his desire to speak with counsel but that opportunity was never provided to him.

6Mr. Kamal was nineteen years old at the time of his arrest and interview. He is a high school graduate and was employed by the City of Toronto. It is evident that Mr. Kamal is an intelligent young man. While I accept that there were many things going through his mind at the time, given his arrest on a charge of murder and then being confronted with charges of armed robbery, as I shall explain, I do not accept that Mr. Kamal was unable to understand what he was being told nor was he unable to make conscious decisions regarding whether he did or did not want to speak to counsel. I also note in this regard that, by this point, Mr. Kamal had been read his rights three times and he had spoken with duty counsel. He was also told three additional times by Det. Stinson that, if he wanted a lawyer at any point, all he had to do was say so. In those circumstances, I do not accept that there was any confusion in Mr. Kamal’s mind regarding his right to speak to a lawyer at any point during the course of the interview if he truly wished to do so. I also do not accept that there was an obligation on the officers to do more than they did in terms of making it clear to Mr. Kamal what his rights were.

7I begin with two assertions made by the defence regarding the wording of the cautions, that it submits are mandatory, but that were not included in the ones given to Mr. Kamal. One is that the police did not tell Mr. Kamal that, if he wanted to speak to a lawyer, they would then immediately have to cease asking him questions. The other is that the police did not tell Mr. Kamal that, if he gave a statement, that statement could be used as evidence “against him”.

8I do not accept that there is a positive obligation on the police to use either of those precise form of words for the purpose of communicating to an accused person what their rights are. The cautions required to be given by the police, to a person upon arrest or detention, ought not to be treated as if they were incantations whose content must be uttered in precisely the same words in order to achieve the desired result. As long as the purpose of the cautions is achieved, the manner in which they are expressed ought not to be rigidly prescribed or rigidly adhered to.

9In particular, I do not accept that the police had to specifically tell Mr. Kamal that, if he wanted to speak to a lawyer, they would then have to cease to ask him questions. This proposition is drawn from language used in some portions of the decision in R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236. In my view, the decision in Prosper does not establish such a requirement. Rather, what that case, and others that have discussed it, does establish is that, if an accused person says that they wish to speak to a lawyer, then the police must stop asking the accused person questions until s/he has had time to avail her or himself of that opportunity. As Lamer C.J.C. said in Prosper, at para. 42(QL):

However, s. 10(b) does require, in situations where a detainee has asserted his or her right to counsel and been duly diligent in exercising it, that the police hold off in order to provide the detainee with a reasonable opportunity to contact counsel.

10In this case, Mr. Kamal did not assert his right to counsel nor was he duly diligent in exercising it. Quite the contrary. While I agree that Mr. Kamal initially made some indication that he might want to speak with counsel, he almost immediately countermanded that intention by asking for a further understanding of what the Toronto officers were talking about before making a final decision. After clarifying what they were interested in, the Toronto officers made it clear to Mr. Kamal that if he wished to speak to counsel at any point he just needed to tell them. More precisely, the following exchange took place:

STINSON: Okay so again, you understand your right to call a lawyer if you choose to do so?

KAMAL: Yes.

STINSON: Okay so if you wanna call a lawyer you let me know?

KAMAL: Okay.

STINSON: Okay do you understand that?

KAMAL: Yes.

Notwithstanding these questions and answers, Mr. Kamal did not, at any point thereafter, ask to speak to counsel.

11On the other point, the officers told Mr. Kamal that anything that he said might be “given in evidence”, without adding that it might be used in evidence “against him”. I do not find any flaw in the officers’ expression of that caution. Indeed, I note that the language used is the exact same form of standard caution that was referred to by the Supreme Court of Canada in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, and regarding which Charron J. said, at para. 31:

Therefore, the police caution, in plain language, informs the suspect of his right to remain silent.

12In terms of the voluntariness issue generally, none of the four categories of concern regarding the voluntariness of a statement, as set out in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, are present in this case. That is, there were no threats or promises; no atmosphere of oppression; no absence of an operating mind; no police trickery. That is not the end of the inquiry, however. The right to silence under s. 7 of the Charter must be considered as well. As Charron J. also said in Singh, at para. 37:

Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well.

13It is clear that Mr. Kamal was offered the opportunity to speak to counsel before the Toronto investigators sought to ask Mr. Kamal questions. The defence says that Mr. Kamal made a positive assertion that he wanted to speak to counsel. I do not agree. Mr. Kamal’s statement “I guess so” is ambiguous. He immediately countermands any such intention by saying “wait, wait hold on one second”. Mr. Kamal then seeks, and is given, further information regarding the purpose for the presence of the Toronto police officers. He is then told again that he has the right to speak with a lawyer, as I have set out above.

14It is clear that Mr. Kamal was told that he could call a lawyer and it is equally clear that he declined to exercise that right. Having so declined, the officers were at liberty to question Mr. Kamal. In his evidence here, Mr. Kamal said that he was confused at the time because of the concurrent murder and robbery investigations, such that he did not understand his rights, notwithstanding that he told the officers that he did understand them. He also admitted that he understood that he had the right to a lawyer.

15I do not accept that Mr. Kamal was under such a level of confusion, as he now contends, regarding his rights, including his rights to speak to a lawyer, if he wished to do so. However, even if he had some residual confusion regarding what was going on, absent some outward manifestation of that confusion, such that the officers should have been aware of it, that internal uncertainty does not operate to preclude the police from continuing with the interview. As McLachlin J. said in R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151 at para. 55(QL):

I should not be taken as suggesting that the right to make an informed choice whether to speak to the authorities or to remain silent necessitates a particular state of knowledge on the suspect’s part over and above the basic requirement that he possess an operating mind. The Charter does not place on the authorities and the courts the impossible task of subjectively gauging whether the suspect appreciates the situation and the alternatives. Rather, it seeks to ensure that the suspect is in a position to make an informed choice by giving him the right to counsel.

16Finally, I will address one other issue raised by the defence. It is contended that, when Mr. Kamal was arrested by the Peel Regional Police officers on the murder charge, he was also detained on the robbery charges and ought, therefore, to have been advised of the reasons for his detention on the latter charges, which was not done. It is therefore contended that Mr. Kamal’s s. 10(a) Charter rights were infringed.

17I do not agree with either of those contentions. The Toronto Police did not ask the Peel Regional Police to arrest or detain Mr. Kamal on the robbery charges. Had they done so, the situation might be different. Rather, the Toronto Police knew that Mr. Kamal was being arrested by Peel Regional Police on the murder charge and would therefore be detained for that purpose. There was no need, consequently, for the Toronto Police to also arrest or detain Mr. Kamal. Rather, as Det. Stinson explained, they could rely on the fact that Mr. Kamal would be detained on the murder charge to allow them time to interview Mr. Kamal, after the Peel Regional Police completed their dealings with him, and then arrange for Mr. Kamal to be charged and brought before a Toronto court, on the robbery charges, in due course. The officers did, however, make it clear to Mr. Kamal, before they interviewed him, that he would be arrested on the two armed robbery charges so Mr. Kamal was well aware of the jeopardy that he faced when he was questioned. There is no breach of Mr. Kamal’s s. 10(a) Charter rights in those circumstances.

18In summary, I am satisfied beyond a reasonable doubt that Mr. Kamal gave his videotaped statement voluntarily. I am also satisfied that there was no breach of Mr. Kamal’s rights under ss. 7 or 10 of the Charter. Mr. Kamal was treated fairly and reasonably throughout the interview process. He was fully informed of his rights, especially his right to counsel. Mr. Kamal spoke to duty counsel prior to the interview by the Peel Regional Police. Subsequent to that consultation, Mr. Kamal was again advised of his rights to counsel when the Toronto Police interviewed him. Indeed, he was so advised more than once. Notwithstanding all of that, Mr. Kamal did not, at any point, ask to speak to a lawyer while he was being questioned by the Toronto Police officers. I cannot find any legitimate criticism of the manner in which the Toronto Police officers conducted that interview. As the video statement makes clear, Mr. Kamal engaged in a free flowing conversation with the Toronto officers in which he acknowledged certain aspects of his conduct relating to the robberies and denied other aspects. There is simply nothing in the conduct of that interview that suggests anything other than that Mr. Kamal’s participation in it was both informed and voluntary.

19Mr. Kamal’s statement to the police is therefore admissible as evidence in this trial.

NORDHEIMER J.

Released: November 18, 2015

COURT FILE NO.: 12-40000810-0000

SUPERIOR COURT OF JUSTICE