CITATION: R. v. Ibrahem, 2016 ONSC 3196

COURT FILE NO.: 13735/14

DATE: 2016-05-16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FERAIDON IBRAHEM

Defendant

Counsel

B. Green & N. Trbojevic, for the Crown

S. Caramanna & F. Davoudi, for the Defendant

HEARD: April 18-22, 25-28/ 2016

Justice B. Glass

Voir Dire Reasons for Statement of Defendant Admissibility

Introduction

[1] The Crown seeks to introduce a statement by the Defendant and the Defence seeks an order for a Charter infringement with an exclusion sanction.

[2] On July 19, 2013, the wife of the Defendant died in her residence. The Defendant is alleged to have called 911 to report that he had killed his wife.

[3] Durham Regional Police personnel arrived within minutes and took the Defendant into custody.

[4] The first language of Mr. Ibrahem is Pashto. He spoke in what officers described as broken English with the 911 operator as well as to officers as the residence and later at the police station.

[5] An interpreter was arranged to assist the Defendant and duty counsel advice was provided.

[6] A concern expressed by the Defence is that the police knew from the beginning of this investigation that Mr. Ibrahem was not fluent in English and that they are trying to tender evidence that is not within the category of being given voluntarily. His section 7, 10(a) and 10(b) Charter rights were infringed so that the statement should not be admitted into evidence.

Issues

[7] Were the words of Mr. Ibrahem voluntarily conveyed?

[8] Did Mr. Ibrahem understand enough English to make a statement that might be entered as one voluntarily expressed?

[9] Is the statement given in contravention of section 7, 10(a) and 10(b) of the Charter?

Background Facts

[10] The police involvement commenced with a 911 call from a person purporting to be the husband of a woman who died following being stabbed.

[11] The Durham Regional Police attended promptly.

[12] On arrival, some officers saw Mr. Ibrahem come to the doorway of the residence and retreat to the residence after which he came back to the front door. At that time, he was directed by officers to come out of the residence, come down the front steps, turn around and walk backwards towards the police after which he was handcuffed and placed in a police cruiser.

[13] The Defendant spoke in what officers described as broken English. He complied with directions from officers.

[14] Mr. Ibrahem was placed in the cruiser of Constable Fotheringham and taken to a police station.

[15] Constable Fotheringham made the arrest for murder and took information from Mr. Ibrahem. The officer provided the primary police caution as well as explained that he was being charged with murder and that he had the right to retain and instruct counsel. He would be able to speak with any lawyer he wanted or to a duty counsel. If he could not afford a lawyer, he would be able to apply for legal aid. A secondary caution was not given by this officer.

[16] At the police station after the Defendant was through the booking procedure, Detective Leipsig provided the police primary and secondary cautions as well as confirmation that the Defendant was charged with murder and had the right to a lawyer. The officer explained that duty counsel provides advice but does not do the trial. Legal aid can provide counsel for the trial.

[17] It was evident that Mr. Ibrahem’s first language was not English; however, Constable Fotheringham spoke slowly in English and concluded that the Defendant understood what he was saying. When he read the rights to counsel and the primary police caution regarding saying any comment, the officer spoke slowly.

[18] Constable Fotheringham transported the Defendant to the police station. Prior to leaving the residence of the Defendant, the Defendant was handcuffed after being directed in English to come down the front steps at his house and then to walk backwards towards the officers. The officer giving those directions was Constable Hartry.

[19] No officer exerted physical force or verbal force to induce the Defendant to make a statement was the evidence from all the officers.

[20] When Constable Fotheringham got to the police station, he took Mr. Ibrahem to the booking area where Detective Constable Frannsen was in charge. The booking officer spoke with the Defendant at length and had an understanding of Muslim heritage persons. He greeted Mr. Ibrahem with words used in his culture and Mr. Ibrahem responded. When the Defendant had some difficulty with English words, Detective Constable Frannsen explained in different words. The officer told the Defendant about getting him to talk with a lawyer who would not charge any money. After the booking procedure was completed, Detective Constable Frannsen had the duty counsel office contacted with the understanding that the language of preference for the interview would be Pashto. That was done.

[21] The Muslim religious month of Ramadan was in progress at this time. Detective Constable Frannsen was aware of its significance and that devout persons fast during daylight hours. He told the Defendant the hours of prayer for that day, and Mr. Ibrahem said he did not wish to pray. He had standard food supplied which is a nutragrain bar and juice.

[22] The accused man was processed by the forensic identification unit.

[23] Up to this point in time, Mr. Ibrahem appears to have understood what was happening. Language was not a problem for him to understand what officers were saying to him. No threat or inducement was directed or spoken to him. He was not questioned about the offence in advance of speaking to duty counsel. His right to silence was not impacted at all through this process.

[24] Arrangements were made for an interpreter. There was no success with the Toronto Police Service or York Region Police, but a contact was made with a man working with the RCMP, Noman Hossein. He was working as a monitor in a private communications intercept capacity. Mr. Hossein’s brother-in-law worked with York Regional Police Service. Mr. Hossein spoke 6 languages including Pashto and English.

[25] Detective Leipsig and Mr. Hossein met with Mr. Ibrahem and confirmed he had spoken with duty counsel.

[26] Again, Mr. Ibrahem appears to have had an understanding of English and was assisted with language by another person speaking Pashto. There certainly was no threat or inducement or coercion by any police officer at this stage including from Detective Leipsig.

[27] Exhibits were filed regarding the education of Mr. Ibrahem as a doctor in Afghanistan and English language studies here in Canada after he came in 2013.

[28] He appears to have had a concern about being able to pay for a lawyer. He spoke with two duty counsel and appears to have understood that he did not have to speak with the police or answer questions. He was told that there is a process for getting a lawyer when a person cannot afford one. He spoke with 2 duty counsel and said that they lawyers told him not to say any comments to the police.

[29] Mr. Ibrahem made a conscious decision to talk with Detective Leipsig who did not apply any physical or emotional pressure to him. The officer was leaving the decision to Mr. Ibrahem to answer questions or tell him what had happened at the residence.

Analysis

[30] This is simply and plainly a voluntary statement given by a person who had an ability to communicate in English but had a first language of Pashto. No officer applied directly or indirectly physical or emotional pressure upon Mr. Ibrahem to speak to the police. The police involvement commenced when Mr. Ibrahem called 911 to report that help was needed for his wife whom he had killed. When police arrived and gave him directions in English, the Defendant responded without hesitation or confusion. After descending the front steps at his residence, he turned around and walked backwards towards the officers as he was directed to do. He was handcuffed and placed in the police vehicle.

[31] A primary police caution was read to him in English slowly because the officer, Constable Fotheringham, realized that English was not his first language. There was no confusion demonstrated by Mr. Ibrahem. In addition, he was told that he would be charged with murder and that he had the right to retain and instruct a lawyer. If he could not afford a lawyer, one could be provided through legal aid duty counsel for initial advice and he could obtain a lawyer for his case through legal aid if he could not afford one.

[32] He was taken to the police station and booked for the crime of murder. When speaking to the booking officer, Mr. Ibrahem corrected the arresting officer, Constable Fotheringham, that he had been in Canada 3 months not 2 months. This was done in English.

[33] Arrangements were made to find a Pashto interpreter to assist Mr. Ibrahem. When a Pashto interpreter was located, that person attended the police station, spoke with Mr. Ibrahem, and then assisted Mr. Ibrahem with his interview with Detective Leipsig.

[34] This is not an arrest, police transportation, police booking process, and police interview that was done in a hurry whereby an arrested person might be confused. Time was taken to move through each step. No panic by the police officers was demonstrated.

[35] Comments made by Mr. Ibrahem were expressed willingly and voluntarily. There is no act by police to get a statement from Mr. Ibrahem through inducements, promises for favours, threats or oppression. The issue of Pashto as the first language of Mr. Ibrahem was identified from the beginning of the investigation. There was no confusion by the Defendant about what was happening, what the police were doing, getting in touch with a lawyer for advice and whether to speak with the police. He understood that duty counsel had recommended to him not to give a statement to the police. All of his actions and comments were those of a person with an operating mind.

[36] Mr. Ibrahem is a person with a first language other than English but with an ability to communicate and understand English. When he had the assistance of an interpreter of his first language, he was not deprived of his legal rights to remain silent or to give a voluntary statement.

[37] I find that the statement given by Mr. Ibrahem is a voluntary statement meeting the requirements of R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38, R. v. Sinclair, 2010 SCC 35, [2010] S.C.J. No. 35, and R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48. Inducements, threats, tricks, oppression, deprivation of an operating mind did not exist with the interview and statement of the Defendant. The Crown has proven voluntariness beyond a reasonable doubt.

[38] There has been no deprivation of Mr. Ibrahem’s right to silence within section 7 of the Charter of Rights and Freedoms. He had an operating mind as he communicated with police officers. He was not subjected to pressure or trickery by police officers.

[39] Sections 10(a) and 10(b) of the Charter were addressed by the investigating police service. The Defendant was told why he was arrested. He was told that he had the right to speak with a lawyer for advice. The process of the availability of duty counsel with an interpreter was explained. He was advised that if he could not afford a lawyer, he would be able to apply for legal aid for a lawyer.

Conclusion

[40] The ruling of this voir dire is that the statement is voluntary and admissible at Mr. Ibrahem’s trial.

[41] There is no Charter infringement which might lead to excluding the statement.

Justice B. Glass

Released: May 16, 2016