R. v. Ali, 2016 ONSC 2100

CITATION: R. v. Ali, 2016 ONSC 2100

COURT FILE NO.: 14-30000399-0000

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CINDY ALI

Defendant

COUNSEL:

R. Juginovic, J. Hanna, for the Crown

C. Hicks, K. Bailey, for the Defendant

HEARD: January 18, 19, 20, 21, 25 2016

DUCHARME J.

VOLUNTARINESS REASONS FOR JUDGMENT

I. OVERVIEW

[1] Cindy Ali is charged with the first degree murder of her daughter, Cynara Ali, who was sixteen years old at the time and severely disabled as a result of cerebral palsy. Cynara Ali lived at 150 Burrows Hall Boulevard, unit 118, in Scarborough, with her three sisters, father and mother, Cindy Ali.

[2] On the morning of February 19, 2011, Ms. Ali, who was the only person at home with her daughter at the time, had called 911 reporting a home invasion and that her daughter was not breathing. When emergency personnel arrived, they discovered Cynara Ali, lying flat on her back on a couch with a pillow over her forehead and a towel draped over her neck on the living room couch with vital signs absent. Paramedics were able to restore a pulse to Cynara Ali using CPR. Cynara Ali was rushed to Centennary Hospital and then transferred to Sick Kids Hospital where after approximately 36 hours she was taken off life support and died.

[3] The Crown seeks a ruling that the admission of all of the following utterances as voluntary statements of Cindy Ali:

(A) Ms. Ali’s call to 911;

(B) Utterances to police while at 150 Burrows Hall Blvd., unit 118;

(C) Utterances in the ambulance en route to the hospital to Paramedic Bruce and P.C. Minhas;

(D) Statement given to police at the hospital;

(E) The videotaped statement given to Detective Louhikari and DC Emerson at 42 Division at 9:46 p.m. (“The videotaped statement”);

(F) Statement given to P.C. Duggan on November 9, 2011.

[4] After the hearing of the evidence, the defence conceded that (A), (E) and (F) were admissible. The defence also conceded that there were no concerns with threats, promises, or oppression by the police. However, Mr. Hicks argues that the rest of the utterances were not admissible because Cindy Ali lacked an operating mind at the time of the utterances and because the police failed to keep an accurate record of what Ms. Ali was asked and what it was that she said.

II. THE STATEMENTS

(B) Utterances to police while at 150 Burrows Hall Blvd., unit 118

[5] As firefighters Bujokas and Toth were the first to arrive at the apartment followed by paramedics. Then P.C. Kelloway arrived followed shortly thereafter by P.C. Minhas. For the purpose of completeness I shall first outline the evidence of the firefighters and paramedics although the admissibility of any utterances made to them are not being challenged by the defence as they are not persons in authority.

[6] Firefighters Bujokas and Toth made their way into the unit and down the hallway, firefighter Bujokas testified that he saw Cindy Ali lying on the living room floor on her stomach with her head facing the front door. She lifted her head, looked at him, said “don’t hurt me” and then put her head back down and closed her eyes. Firefighter Bujokas then conducted a quick examination of Ms. Ali to try to immediately determine why she was lying on the ground including conducting a pain response test to determine if she was responsive and conscious. He concluded that she was conscious, alert and responsive to pain. He did not find any bleeding or any injuries. As he got to the point in his assessment of Ms. Ali where he was checking her legs, he then noticed for the first time, a young female on the couch.

[7] Firefighter Bujokas testified that he believed the young female on the couch was about eight years old. She was lying flat on the couch, her legs straight out, with a pillow resting on top of her head. He described the pillow as looking like “Napoleon’s hat” resting right on top of her forehead. He observed a towel scrunched up and placed around her neck. When he removed the towel around Cynara Ali’s neck, firefighter Bujokas checked for a pulse and he found none - she was vital signs absent.

[8] Firefighter Bujokas picked up Cynara Ali in order to transfer her to the floor where he could begin CPR. Cindy Ali did not get out of the way so firefighter Toth moved the couch so that Bujokas could lay Cynara on the floor and he commenced CPR and first aid. Firefighter Toth picked up Ms. Ali from the floor and brought her to sit on the love seat. While firefighter Bujokas began CPR on her daughter, Ms. Ali communicated to firefighter Toth to check the basement which he presumed meant that someone might still be in the basement. Ms. Ali also complained of pain in her right arm.

[9] When paramedics arrived, they observed Ms. Ali sitting on the edge of the couch with her hands folded on her lap, not making eye contact with anyone, just looking straight ahead down the hall and not saying anything. Ms. Ali was not responding to questions asked by emergency personnel about her daughter’s condition. Paramedic Bastani made multiple attempts to engage Ms. Ali and obtain information about her daughter and what had happened but Ms. Ali would not respond to any of the questions asked. The advanced life paramedic Grenier also made multiple attempts to try to obtain information about what happened to Ms. Ali’s daughter to cause her to be VSA and he received no response from Ms. Ali. Cindy Ali was variously described by various first responders as “distraught”, “catatonic”, “in shock”, “hysterical, pretty disturbed and frozen”, “traumatized”, “scared”, “crying” “hyper-ventilating” and “going in and out of consciousness.”

[10] A paramedic who tended to Ms. Ali observed that she was not responding to questions and was staring blankly or off in the distance. When her pulse was being checked, he also observed her react with an “oww” when her wrist was held. Her shoulder was checked and there was no bruising, discoloration or deformity of any kind. Paramedic Bruce testified that Ms. Ali said “my baby, my baby” in a way that was not responsive to their questions. At one point he observed Ms. Ali become wide-eyed and fearful and she said they are coming back or are going to come back to get her. When she complained about the pain in her shoulder, Ms. Ali told him that she was also kicked. Paramedic Bruce was concerned about her mental state and he wanted her assessed for shoulder or back injuries.

[11] P.C. Kelloway testified that when he first approached Ms. Ali she appeared very disoriented, had a blank look on her face and didn’t look at anyone walking into the room. At first, Ms. Ali would not answer any of PC Kelloway’s questions regarding what happened. She then spoke to Kelloway but what she said was incoherent. One of the paramedics said that she might be going into shock and might pass out.

[12] A few minutes later, Ms. Ali told him that someone had knocked on the front door and when she answered it someone pushed their way in and asked her where the package or box was. Ms. Ali told him that she threw stuff at the person and that is why there is glass on the floor. Ms. Ali told him that the person went into the basement. PC Kelloway admitted that Ms. Ali remained distraught and upset when she spoke to him and he admitted that he did not read her statement to Ms. Ali.

[13] P.C. Minhas arrived at the apartment and asked Ms. Ali what had happened. He testified that she appeared shocked and just looked straight ahead, as if past him, and would not answer the question. She began to shake as if she was having a seizure and this shaking lasted for approximately ten seconds. After making several attempts to ask her what happened, he asked Ms. Ali to accompany him to the kitchen. She pointed to her shoulder and said “my back”. At this time, Ms. Ali said that she was in the living room, feeding her baby. She then said, they are going to come back. PC Minhas asked who was going to come back and Ms. Ali said the two males with a Jamaican voice. At this point, she would not provide any further information. PC Minhas told her that it was very important that she provide more information as there were many police officers in the area and the police would have an opportunity to locate these intruders. Ms. Ali eventually told him that the intruders wore all black, black ski masks and black shoes. She said she went to the door and saw one or two intruders.

(C) Utterances in the ambulance en route to the hospital to Paramedic Bruce and P.C. Minhas

[14] Ms. Ali was transported to the hospital in an ambulance and was accompanied by paramedic Bruce and P.C. Minhas. PC Minhas asked an initial question and paramedic Bruce continued to ask Cindy Ali questions with silent input from PC Minhas. The Crown argued that paramedic Bruce was not a person in authority but, given the way the questioning was conducted, I find that he was an agent of the police and therefore a person in authority.

[15] PC Minhas, who had forgotten his notebook in his car was taking notes on the back and front of three by five inch 208 cards and later on a piece of blank paper. He testified that he did not ask Ms. Ali any questions in the ambulance and he could not recall if paramedic Bruce was asking any questions to her. He did agree it was possible that he had mouthed some questions for Bruce to ask but he could not recall if he had. PC Minhas said Cindy Ali was speaking rapidly and that he was writing frantically to keep up with her. He admitted that he did not get everything she said, that he had to summarize what she said at times or take out filler words and that it was very likely that he had missed some things that she said.

[16] PC Minhas said that Cindy Ali said the following while in the ambulance:

They came in and kicked her. Says trying to get baby. Amanda went to work after 9:00. Doorbell ringing. Front door locked. Unlocked it. Opened it a little. They pushed door in. Don't know who it was. Two came inside. Tried to grab phone. Couldn't. Phone in kitchen. Ribbed it off. Daughter was on love sofa. She ran into sitting room. Glass broke. Unknown Males asking about a package. Someone dropped a package and they pick it up. One person took her upstairs, and one person stayed with baby/daughter. Went upstairs and went through drawers. Swearing. Male upstairs with ski mask and all black with Jamaican accent. Heard baby laughing downstairs. I heard downstairs guy say 'you bitch' from upstairs that downstairs guy said. Gun small. Guy upstairs. Black colour. He followed her downstairs. She tried to get away from her to get baby. Male went through all the rooms. Emptied stuff and drawers. They left through the basement door. Came down to basement door then went to room in upstairs. Pulling drawers. He said 'maybe we have wrong -- wrong house.' Daughter was laughing, and male put a pillow over her face. The males down -- male downstairs. Male downstairs taller than her, 6’ to 6'2. Big build because had coat. Guy downstairs big as well because coat. I was screaming because baby laughing. I threw glass to save baby. Male upstairs forced her to go to basement and went through stuff and emptied husband's office. Pushed husband's chair against him and ran upstairs, and my baby was lying there and guy was still standing there. Basement guy came up and said 'wrong house. No package.' Basement guy came up and told her if she said anything he would come back. Fell on main floor red carpet. She fell to ground and he kicked her. This happened when she came down from upstairs, and she went to room with baby. Males ran downstairs and ran through basement. Think lived in complex because knew about basement exit. She called 911. Female back got hurt when she fell.

(D) Statement given to police at the hospital

[17] At Centenary hospital, Ms. Ali was placed alone in a quiet room. PC Minhas stood outside the quiet room. He told Ms. Ali that he would not let anyone into the quiet room with her. At approximately 2:40 pm, Detective Cole and DC Rodrigues, entered the quiet room. Detective Cole advised Ms. Ali that he was investigating the matter and wanted to ask her a few questions about what happened. He testified that she was crying and sobbing at times. Det. Cole did not have a tape recorder with him and, while he took rough notes at the time, he did not consider this to be a proper formal interview.

[18] Ms. Ali told Detectives Cole and DC Rodrigues that she had just finished feeding her daughter and she put her down on the couch to rest. She heard the doorbell ring and she went to the door and there were two well-dressed males with strong Jamaican accents, wearing suits, long black coats, gloves and balaclavas. They pushed their way in. One immediately drew a firearm, pointed the gun at her and told her that he had come to collect the package. She told him that she did not know what he was talking about. He held the gun to her and directed her to the upstairs. Once upstairs, the male searched through the drawers, boxes and closets. The intruder was swearing, along the lines of “where is the fucking package”. The male with the gun took her downstairs and when she reached the hallway, she grabbed a candle and threw it at him. She then tripped and fell as she ran into the living/family room to see her child. The male with the gun followed her and while she was on the ground after tripping, the male kicked her on her right shoulder. She saw her daughter still on the couch and her daughter was laughing. She saw the second male close to her daughter with a pillow in his hands.

[19] The male with the gun then told Ms. Ali to go downstairs. She went downstairs with him and she said she could no longer hear her daughter laughing. The male with the gun searched the basement and then brought her back upstairs at which point this male said to the other male that they probably have the wrong house. The two males ran down the stairs into the basement and out the door that lead to the underground parking garage. Ms. Ali said that she saw her daughter lying on the couch at that point, not moving, with a pillow on her face. She then called 911.

[20] Det. Cole asked Cindy Ali how the kitchen phone ended up on the floor. She said the intruders pulled it off the wall. Det. Cole asked her about the knives on the floor and she said that she grabbed them from the counter and threw them at the male with the gun. She said that the suspect with the gun threw a glass candle holder at her after she had thrown one at him. She said that $100 was taken by the male with the gun from her jewellery box.

II. THE LAW

(A) Operating Mind

[21] The burden is on the prosecution to show beyond a reasonable doubt that the statements made by Ms. Ali were voluntary. In this case the defence has conceded that there were no threats, inducements, trickery or oppression by the police. Therefore the only question is whether the Crown has demonstrated that Ms. Ali had an operating mind at the time she made these statements. However, it is clear that the test for an operating mind is not an onerous one.

[22] In R. v. Whittle Sopinka J. explained at para 45 that:

The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest. [Emphasis added.]

At para 49 Sopinka J. summarized the rule as follows:

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.” [Emphasis added.]

[23] In R. v. Oickle, Iacobucci J. stated at paras 63 and 64:

…like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule.

the operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible.

[24] The only thing I would add is that where the person speaking to the police officer is being interviewed as a witness, rather than as a suspect, then the latter part of the operating mind test set out in Whittle, supra, does not apply. That is, it is sufficient that the person have sufficient cognitive capacity to understand what he or she is saying and to whom she is saying it. There is no need to understand that what they say might be used in court against them as no such proceedings are in the mind of anyone. In this case, Ms. Cindy Ali was not considered a suspect until sometime after her videotaped statement which the defence concedes was voluntary.

[25] A statement cannot be excluded merely because it is argued on behalf of the accused, either that the accused did not mean what he said, or that the accused did not say what he is alleged to have said. These points go to weight, but not to admissibility. But, if the accused is able to argue that the statement was not made as a voluntary statement at all, because, through his mental condition at the time, the statement did not represent his operating mind, then a true question arises as to the admissibility of the statement.

[26] In this case the defence relies on the following constellation of facts to raise doubt about whether Ms. Ali had an operating mind at the time of these statements:

(a) Ms. Ali said ‘don’t hurt me” to firefighter Bujokas, suggests that she was perhaps disoriented or, at least, that she did not understand who he was;

(b) When paramedics arrived they saw Ms. Ali looking straight ahead down the hall and not saying anything. She did not respond to questions and was described by various first responders as “distraught”, “catatonic”, “in shock”, “hysterical, pretty disturbed and frozen”, “traumatized”, “scared”, “crying” “hyperventilating” and “going in and out of consciousness;”

(c) Paramedic Bruce testified that Ms. Ali said “my baby, my baby” in a way that was not responsive to their questions. As a result of his observations, he was concerned about her mental state;

(d) In her initial dealing with P.C. Kelloway he described her as appearing very disoriented, having a blank look on her face and not looking at anyone walking into the room. When she initially spoke to him she was incoherent and he wondered if she knew who he was;

(e) P.C. Minhas described Ms. Ali as appearing shocked. She just looked ahead and was initially non-responsive to his questions. She asked, “Where is my baby, is she okay?” and he told her that the paramedics were with her. She also said, “I am sorry, please do not hurt me.” She also had what appeared to be a brief seizure-like spell of shaking that lasted for approximately ten seconds.

[27] In considering the foregoing, I would note that crying, sobbing or other displays of emotion by the interviewee do not mean that they lacked an operating mind. Nor does some evidence of mental health problems. I would also note, without shifting any evidentiary onus onto Ms. Ali, that she did not testify and the defence did not lead any psychiatric expert evidence with respect to her state of mind during the time she made these statements.

[28] The Crown submits that Ms. Ali was just acting throughout and she was feigning the behaviours noted above. More importantly, the Crown can point to the following facts both before and during her statements:

(a) Ms. Ali told paramedic Toth to check the basement and she complained of pain in her right arm. She also became wide-eyed and fearful and she said they are coming back or are going to come back to get her;

(b) Despite her initial difficulties, Ms. Ali was able to speak to PC Kelloway about what had happened;

(c) Similarly, once PC Minhas moved her into the kitchen, Ms. Ali was able to tell PC Minhas about what had happened;

(d) In the ambulance Ms. Ali had no difficulty telling paramedic Bruce about what had happened; and

(e) At the hospital in the quiet room, in the quiet room, Ms. Ali had no difficulty telling Det. Cole and PC Rodrigues what had happened although she was crying and sobbing at times.

[29] All of these responses were appropriate and suggest that Ms. Ali had the minimum cognitive ability to understand what he or she is saying and to whom she is saying it.

[30] It is also important to keep in mind that in this case the contact with the police was a result of Ms. Ali calling 9-1-1 for help. During that call having been asked twice if she needed the Police, Ambulance or Fire Department, she said she needed “everything”. Not only did she call for help from these individuals but the facts outlined in paragraph 28, supra, suggest that she knew what she was saying and to whom she was speaking. On this basis, I am satisfied that the Crown has demonstrated that Ms. Ali had an operating mind during the time when she made the challenged utterances.

[31] Finally, as will be discussed below, the reliability of all of these statements can be tested by comparing them to the videotaped statement given to Detective Louhikari and DC Emerson.

(B) Accurate Record of the Utterances

[32] In this case, only the statement made by Ms. Ali at 9:46 pm on February 19, 2011 was electronically recorded. All of the other challenged utterances were recorded in officer notes, were not verbatim or complete and they were not reviewed or signed by Ms. Ali. The defence concedes that there is no absolute rule that statements made to a person in authority must be recorded nor are all unrecorded statements inherently suspicious. In their factum, the defence argues that without a clear record of what was said to Ms. Ali during the significant amount of questioning prior to the recorded statement at 9:46 p.m., the Crown cannot meet their heavy burden of proving these statements are voluntary beyond a reasonable doubt. But in oral argument, as already mentioned, they conceded that the only issue was whether or not Ms. Ali had an operating mind.

[33] At the outset, I would note that none of these interviews of Ms. Ali as a witness are inherently suspect. The police came in response to a 9-1-1 call from Ms. Ali and they were simply trying to determine what had happened to her daughter. I find they did not consider her to be a suspect and their questioning was eminently reasonable in the circumstances. Moreover, these interviews were not conducted in a situation where recording facilities were readily available but the police chose not to record the interview electronically. Finally, as Mr. Hicks conceded in oral argument, this is not a case like R. v. Ferris, 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756 where, due to the incomplete record of what was said, the meaning of the statement cannot be determined without its context or alternatively its meaning is so speculative that it ought to have been excluded because its prejudicial effect outweighed its tenuous probative value.

[34] Given the concessions of the defence and my finding that Ms. Ali had an operating mind when she made these statements, the fact that they are not verbatim or complete becomes a matter of weight not of admissibility. Certainly, to the extent there are gaps in what was recorded of what Ms. Ali said, these do not prevent me from determining whether the statements are voluntary. Moreover, it is also important to remember that the voluntariness rule is concerned with reliability, among other things. In this case, these statements can be compared to the videotaped statement given to Detective Louhikari and DC Emerson in order to assess their reliability. Where elements of the earlier statements are reflected in the videotaped statement, they can be understood in a fuller context and the videotaped statement is capable of corroborating the earlier statements in terms of their “threshold reliability”.

[35] For all of these reasons, I would admit the earlier statements despite the fact that they were not recorded more thoroughly.

(C) Conclusion

[36] For all of these reasons, I conclude that Cindy Ali had an operating mind when she made these statements and, despite the fact that they were not fully recorded, they shall all be admissible at her trial.

Ducharme J.

Released: March 29, 2016

CITATION: R. v. Ali, 2016 ONSC 2100

COURT FILE NO.: 14-30000399-0000

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

CINDY ALI

Defendant

VOLUNTARINESS REASONS FOR JUDGMENT

Ducharme J.

Released: March 29, 2016