R. v Al-Enzi, 2016 ONSC 3574

COURT FILE NO.: 08-11565 DATE: 2016-05-31

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN James Cavanagh and Jason Neubauer, for the Crown/Applicant Applicant

• and -

NAWAF AL-ENZI Alan D. Gold and Etai Hilzenrat, for the Respondent Respondent

HEARD: March 29, 30, April 1 and 15, 2016, at Ottawa, Ontario

MADAM JUSTICE B. R. WARKENTIN

REASONS ON VOLUNTARINESS APPLICATION

1On July 31, 2014 the Ontario Court of Appeal ordered a new trial for Nawaf Al-Enzi (“the Respondent”) from his conviction on September 26, 2010 of first degree murder after a trial with a jury. The Crown’s application for leave to appeal to the Supreme Court of Canada was dismissed on December 11, 2014.

2The Respondent stands charged with committing the murder of Mohammed Zalal (“Zalal”) on the night of August 18 or the early hours of August 19, 2006. On August 19, 2006, Zalal’s body was found on property on the outskirts of the City of Ottawa. The cause of death was a single gunshot wound to the head. A lengthy homicide investigation lasting nearly two years culminated in June 2008 when the Respondent and two others, Mahmoud Kayem (“Kayem”) and Ali Abdul-Hussein (“Abdul-Hussein”) were charged with the first degree murder of Zalal.

3Abdul-Hussein pled guilty to being an accessory after the fact. Kayem was acquitted and the Respondent was convicted of first degree murder in the first trial. The Respondent’s new trial is scheduled to proceed on September 19, 2016.

4The question on this voir dire was whether or not the Respondent's statements to the police on August 22, 2006 and November 8, 2006 were voluntary and if so, are they admissible at trial? The test of their voluntariness is whether the will of the Respondent was overborne in circumstances such as to render the statements inadmissible.

5The Crown bears the burden of proving the statements were voluntary beyond a reasonable doubt.

6The statement on August 22, 2006 was a telephone conversation between the Respondent and Detective Krista Hill. The November 8, 2006 statements were both recorded when the Respondent attended at the Ottawa Police station in response to a series of requests to do so from Sergeant Hudson.

7The first statement of November 8 was a videotaped interview with Detective John Monette in a designated video interview room. Sergeant Hudson monitored that interview by remote video feed from a room across the hall. The second statement of November 8 took place when Sergeant Michael Hudson spoke to Mr. Al-Enzi immediately following the conclusion of the interview with Detective Monette. Sergeant Hudson audio-recorded this conversation without informing the Respondent that he was doing so.

[8] In addressing the issue of the voluntariness for these three statements, I considered the following evidence that was before this court: a) The testimony of Detective Krista Hill; b) The testimony of Detective John Monette; c) The testimony of Sergeant Michael Hudson; d) Handwritten notes, Investigative Action Report and Statement Summary prepared by Detective Hill about the August 22, 2006 statement; e) A copy of the video and a transcript of the interview conducted by Sergeant Monette of the Respondent; and f) A copy of the audio and a transcript of the interview conducted by Detective Hudson of the Respondent.

[9] The Crown claims that there is nothing in this evidence that raises a doubt about the four aspects of voluntariness as enunciated in the Supreme Court of Canada case of R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, when determining if the statements were voluntary: a) That the Respondent at all times possessed an operating mind; b) That the police, in this case, Detective Hill, Detective Monette and Sergeant Hudson made no threats, promises or inducements to the Respondent; c) That there was no atmosphere of oppression; and d) That there was no police trickery used to obtain the three statements from the Respondent.

10Counsel for the Respondent noted when considering whether a statement was made voluntarily, the judge must examine and evaluate all the circumstances surrounding the making of the statement (Oickle at paras 47 and 71). In this case, counsel for the Respondent claimed that there were a number of issues that in the context of the entire process would render the statements involuntary.

11Counsel for the Respondent claimed that the Court should weigh all of these factors when considering whether or not the statement was voluntary and that even if the statements were voluntary, the Court should exercise its discretion to exclude the statements because the prejudicial effect of the statements exceeds their probative value.

The August 22, 2006 Statement

12In 2006 Detective Hill was a member of the guns and gangs unit of the Ottawa Police Service assigned to assist the Major Crime branch with the investigation into the death of Zalal. Prior to this investigation, Detective Hill had dealings with the Respondent in other criminal matters.

13On August 22, 2006 Detective Hill was assigned the task of interviewing the Respondent as part of the investigation into the murder due to certain information the police had received from an informant that linked the Respondent to Zalal. The information the police had received was that Zalal’s brother had called the Respondent asking him to find out who had killed Zalal.

14Coincidentally the same day, Detective Hill received two voice mail messages from the Respondent seeking the return of his passport that had been seized following his arrest in an unrelated 2005 matter. Detective Hill did not preserve nor record in her notes the contents of the two voice messages; however, each of the messages was very brief, about 10 seconds. With the exception of recalling that she was asked to return the Respondent’s calls and a call back number had been provided, Detective Hill had no other recollection of the content of the voice messages.

15Detective Hill testified that she returned the Respondent’s calls and used the opportunity to invite the Respondent to the police station to be interviewed regarding the death of Zalal.

[16] In her evidence on the voir dire and in her notes, Detective Hill advised the Respondent that he could attend the police station the following day to obtain his passport and that this would be an opportunity to discuss the death of his friend, Mohamed Zalal. The Respondent told Detective Hill that he had no information to provide to her about Zalal, and then volunteered information about his contact with Zalal on the day of his death which included: a) having picked up Zalal along with two others, whom he called Bird and Chin, at about 2:00 pm on the day of Zalal’s death and then going to Harlem World on Montreal Road to purchase t-shirts; b) then dropping Zalal and the others at Bird’s place; c) speaking to Bird around 6:00 pm at which time Zalal was still with Bird at Bird’s place and again later in the evening, but at that time was not aware as to whether Zalal was still with Bird: and d) that he was supposed to meet Zalal at a strip club in Hull called Pink, but they ended up not meeting there because the Respondent took his wife to the Super Ex and then later to a bar in Hull called Cosmos.

17Detective Hill ended the conversation by informing the Respondent that it was fine for him to attend the police station the next day to retrieve his passport.

18Detective Hill made notes in her notebook while the Respondent was speaking to her during their telephone conversation. Later during the same shift Detective Hill wrote the “Statement Summary” in which she also included a summary of the beginning of the telephone conversation between herself and the Respondent. At the same time she prepared the “Investigative Action Report” about her telephone discussion with the Respondent.

19Detective Hill testified that she recorded the gist of the conversation in her notebook between herself and the Respondent when they were on the telephone. While her notes and subsequent summaries are not verbatim, Detective Hill testified that she believed she recorded everything that was said and did not believe that anything was missing.

20It was Detective Hill’s practice to include a notation that she had had a “general conversation” and the topic to which the general conversation was about, such as “general conversation about wife”, had there been more to the conversation than what she had recorded. It was because there were no additional notes of this nature that she was confident that she had recorded everything that had been said.

21On August 23, 2006 Detective Hill called the Respondent again and asked him to come into the police station for an interview. The Respondent informed her that he had no further information. At around 2:30 pm the Respondent attended the police station in the lobby at which time Detective Hill either personally provided him with his passport or confirmed that she had arranged for its release to him to be picked up at another location. The Respondent again informed her that he had nothing more to say regarding Zalal.

22Detective Hill testified that she had never considered doing anything other than returning the passport to him after the Respondent asked for its return.

23The Defence argued that the Crown has not established beyond a reasonable doubt that the August 22 utterances by the Respondent were voluntary on the basis that the record of the conversation is incomplete and that there was an inducement made to the Respondent by the promise or hope of advantage regarding the return of his passport. The Defence argued that the Respondent did not want to provide any information to the police about his involvement with Zalal on the day of his death but was induced into saying something in order to obtain the release of his passport.

24I do not accept the submissions of the Defence that the utterances made to Detective Hill on August 22, 2006 were not voluntary. It was coincidental that on the same day that Detective Hill was tasked with arranging an interview with the Respondent, he had left her two messages about retrieving his passport. It would have been illogical for her to return his calls and speak only about the passport and not about her desire to arrange an interview. The fact that Detective Hill was able to use the return of the passport as a segue into the prospect of conducting an interview was certainly to her advantage, however, the two topics are linked by coincidence, not some sort of an inducement or promise.

25There was no evidence that Detective Hill threatened to withhold the passport unless the Respondent gave a statement or that she promised to return the passport only if he provided a statement. The evidence supports the opposite - that notwithstanding the Respondent’s refusal to provide a statement, his passport was returned.

26The uncontradicted evidence was that Detective Hill had not even asked the Respondent for information about his interactions with Zalal on August 22, 2006 when she returned his calls. It was the Respondent who volunteered the information about his interactions with Zalal and his whereabouts during the evening of Zalal’s death after which he then informed Detective Hill he had no more information to provide. He refused to be interviewed further and the next day his passport was returned to him.

27I am also satisfied that the three sets of documents provided by Detective Hill in which she recorded her conversation with the Respondent, while not verbatim, were sufficiently complete as to provide adequate substance as to the nature of the conversation that took place.

28The accuracy of the statement or utterances is generally a matter for the trier of fact and not an issue for admissibility. It is only when the inadequacy of the record results in the trial judge being unable to determine whether the words of an accused are voluntary that a statement may be inadmissible. R v. Laidley, [2001] O.J. No. 6281 (S.C.J.) at para 42.

29Detective Hill made notes of the telephone conversation with the Respondent as the conversation occurred. She testified that her notes were not a verbatim record of what was said because she was not able to write quickly enough to record the conversation verbatim but that her notes were a complete record of the conversation that occurred.

30I am satisfied, based upon the three written summaries of the telephone conversation that occurred on August 22 and the subsequent conversations on August 23 as well as the testimony of Detective Hill in the voir dire that the utterances she recorded were faithful summaries of what the Respondent told her.

31The fact that the record is not verbatim is not a bar to admissibility but rather goes to weight to be assessed by the trier of fact.

Does the Prejudicial Effect Outweigh the Probative Value of the August 22, 2006 Statement?

32Counsel for the Respondent submitted that the August 22 statement should be excluded pursuant to the judicial discretion to exclude evidence because the prejudicial effect exceeds the probative value.

33At issue for the Defence is the fact that the Crown alleges the statement by the Respondent that he went to a bar in Gatineau, QC called Cosmos with his wife on the evening of the murder is false. The police attended at Cosmos after the Respondent had told Detective Hill about having been there on the night of the murder to ascertain if anyone there could verify his story. When they made these inquiries, they discovered that there had been a shooting at Cosmos on that same night and all of the patrons were required to exit the bar. The police obtained copies of the video camera recording from Cosmos that showed the patrons leaving by the front entrance after the shooting. There was no evidence from that recording that either the Respondent or his wife was at the bar that evening during the time the Respondent had claimed to be there.

34The Defence argued that the only apparent relevance of the utterances by the Respondent to Detective Hill on August 22 is the alleged falsehood of his attendance at Cosmos bar in Quebec on the night of the murder of Zalal. They argued, based on the voir dire evidence; that it is not certain that the Crown can prove that the Respondent’s statement was in fact false. Detective Hill was unable to state with certainty whether or not there existed other entrances or exists to the bar and Sergeant Hudson confirmed that, despite the surveillance video, it was possible that the Respondent was in fact at Cosmos at the time proximate to Zalal’s death.

35The Defence then submitted that even if the Crown can prove that the Respondent’s statement about being at Cosmos was false, the statement has no probative value or at best, the probative value is outweighed by its prejudicial effect. It was the Defence position that the Respondent’s reference to having been at Cosmos was at best a fib in support of his original position that he had nothing to say to Detective Hill and was said in an effort to invoke his right to remain silent.

36The Defence submitted that the Respondent’s decision not to cooperate with the police, by invoking his right to silence or by providing an inaccurate statement rather than engaging with the police, should not be held against him. The Defence made reference to the case of R v. Chehil, 2013 SCC 49 , [2013] S.C.J. No. 49 at paras. 43 and 44 where the Court reiterated that exercising the right to silence, as protected under the Charter, cannot form the basis for suspicion:

43 Furthermore, the elements considered as part of the reasonable suspicion analysis must respect Charter principles. The factors considered under the reasonable suspicion analysis must relate to the actions of the subject of an investigation, and not his or her immutable characteristics.

44 Nor should the exercise of Charter rights, such as the right to remain silent or to walk away from questioning made outside the context of a detention, provide grounds for reasonable suspicion. These rights become meaningless to the extent that they are capable of forming the basis of reasonable suspicion. Individuals should not have to sacrifice privacy to exercise Charter rights. [emphasis added]

37The Defence argued that the evidence necessarily reveals the Respondent's reliance on the exercise of the right to remain silent and essentially allows the Crown to prejudicially benefit from it. It is the Defence position that the Respondent refused to give Detective Hill a detailed statement and only made a brief utterance as a fib in order to end the conversation and get the commitment for the return of his passport. Prejudice would be created because the jury would likely view this as another example of 'gang culture'. The evidence in the voir dire from Sergeant Hudson and Detective Monette was that persons involved in gang and criminal subculture do not cooperate with the police. Therefore the Respondent's behaviour would be viewed prejudicially by the jury.

38The Defence then submitted that the alleged falsehood of the Respondent’s utterances would only have probative value as after-the-fact conduct if there is independent proof his utterances were false. Such independent evidence would presumably be offered by the two alleged eyewitnesses, Abdul-Hussein and Kayem. The Defence submitted that if these two witnesses are believed, the lie told by the Respondent about being at Cosmos adds nothing and therefore is not sufficiently probative to be admitted into evidence. The Defence made reference to paragraph 27 in R. v. O'Connor, [2002] O.J. No. 4410 (C.A.):

The requirement that the court always approach the disbelieved out-of-court statement within the analytical paradigm of requiring independent evidence of fabrication provides a prudent and desirable safeguard that disbelieved out-of-court statements will not assume a more prominent evidentiary role than is warranted.

39Finally, the Defence argued that the fact that the Respondent may have lied about his attendance at Cosmos bar would be inadmissible as after-the-fact conduct because it is only such evidence if guilt is proved or presumed. The Defence submitted that there could be no reasonable inference of guilt (or of falsehood) from the Respondent’s statement that he attended Cosmos unless the trier of fact had already assumed guilt.

40It was the Defence position that if the August 22 statement was admitted, complicated jury instructions will be required regarding how the trier of fact could permissibly use the Respondent’s statement. Such evidence carries the significant risk of circular reasoning, which presumes guilt to infer that the falsehood was a lie to cover up guilt. In R v. O’Connor, the Court of Appeal recognized the difficulty for a jury to grasp the difference between evidence leading to disbelief of an accused and evidence of fabrication:

37 If the judge concludes that there is sufficient independent evidence of fabrication of either an accused's out-of-court statement or an accused's testimony, then the judge should instruct the jurors that it is open to them to find that the accused fabricated the exculpatory version of events because he or she was conscious of having done what is alleged and that they may use that finding, together with other evidence, in determining if the Crown has proven the case beyond a reasonable doubt.

38 The need for independent evidence of fabrication to support such an instruction is critical. An instruction to jurors that they may make a finding of fabrication against an accused is extremely powerful and must be made with care. The difference between evidence leading only to disbelief of an accused's statement and independent evidence of fabrication can be a difficult concept, particularly for a jury, to grasp. It is, therefore, essential that a trial judge clearly set out the difference between the two types of evidence and in those cases where the fabrication instruction is given, the trial judge should carefully outline what evidence is capable of constituting independent evidence of fabrication.

41The Crown argued that the comments by the Respondent to Detective Hill on August 22 were highly probative, going much further than simply the alleged lie told about having been to Cosmos bar. By his statements to Detective Hill, the Respondent put himself in contact with Zalal on the day of his death. The Crown argued that any evidence of contact between the Respondent and Zalal on the day of the murder is highly relevant to the jury. There is no other witness that puts these two together on the afternoon before Zalal was murdered.

42The Crown also noted that there is other independent evidence to support their theory that the Respondent was lying about being at Cosmos bar. The first evidence is the video camera evidence from the bar itself. Other evidence will be introduced that includes cell phone call detail records that show the Respondent’s cell phone was accessed on the night in question in an area that was not close to Cosmos bar but was in the vicinity of where the murder is alleged to have occurred. The Crown will also seek to introduce intercepted communications between the Respondent and Kayem and others. The Crown also anticipates evidence or KGB statements of both Kayem and Abdul-Hussein, who are expected to say they were in the car with the Respondent when he shot Zalal.

43The Crown submitted that the Defence position that the evidence of the alleged lie loses probative value because the Crown has the evidence of Abdul-Hussein and Kayem that the Respondent was involved in the shooting is misleading. The Crown noted that the evidence of those witnesses is not conceded to be accurate by the defence. It will be strenuously tested and it is anticipated that the Defence will tell the jury those witnesses should be disbelieved.

44The Crown also disagreed with the Defence characterization of the telling of a lie as an exercise by the Respondent to his right to silence. The Crown submitted that to characterise the statement in that fashion is inaccurate. The Crown noted that Detective Hill’s evidence about what the Respondent said to her was said voluntarily and not in an attempt to exercise a right to silence.

45I agree with the position advanced by the Crown. A trier of fact is invited to consider the cumulative effect of all admissible evidence. A trier of fact may find that the lie, if found to be a deliberate fabrication to disguise culpability, is an item of evidence that corroborates the anticipated evidence of Abdul-Hussein and Kayem. The jury is entitled to consider corroborative evidence of this nature. The admission of alleged lies to the police was considered by the Ontario Court of Appeal in the case of R v. Polimac, 2010 ONCA 346. The Court upheld the admission of alleged lies by a man who had pushed his wife off a cliff. Justice Doherty, for the Court, wrote at paragraph 105:

105 On the evidence adduced in this case, the real issue insofar as the out-of-court statements was concerned was whether the appellant had deliberately lied to the first responders, police officers and others concerning the circumstances surrounding Ms. Pauls’ death. If the jury was satisfied that he did lie on significant matters - for example, whether Ms. Pauls spoke to him - the circumstances in which those lies were told made an inference of fabrication to avoid culpability very strong. The trial judge, in keeping with the arguments advanced at trial, focussed on whether there were inaccuracies in the statements and, if so, whether any of those inaccuracies should be found by the jury to be deliberate falsehoods. The trial judge made the respective positions of the defence and Crown on these issues clear to the jury. In doing so, she fairly and fully put the case advanced at trial to the jury.

46I already found that the Respondent’s statement to Detective Hill was made voluntarily and without any prompting by her. It will be for the trier of fact to determine what weight, if any to give to that statement together with all of the other admissible evidence.

47I do not find that the probative value is outweighed by its prejudicial effect. It will be necessary to provide an instruction to the jury on how they may consider this evidence. The fact that the instruction may be complicated is not sufficient reason to exclude the evidence. In due course I will invite the parties to provide me with their respective positions on this statement as well as the opportunity to review my instructions to the jury as to how the jury may consider the statement that the Respondent claimed to be at Cosmos on the night of the murder. R. v. Hall, 2010 ONCA 724 , [2010] O.J. No. 4603 (C.A.) at paras.145, 166 and 167, leave to appeal dismissed in [2010] S.C.C.A. No. 499.

The First November 8, 2006 Video Interview

48After the return of his passport, the Respondent left Canada on September 6, 2006, returning on October 23, 2006. There was therefore no opportunity for the police to interview the Respondent during this period of time.

49Once Sergeant Hudson became aware of the Respondent’s return to Canada, he made repeated and persistent efforts to have the Respondent attend for an interview at the police station. After a series of contacts, the Respondent agreed to and did attend the Ottawa police station at 474 Elgin Street, on the morning of November 8, 2006 for an interview. At this time, according to both Sergeant Hudson and Detective Monette, the Respondent was not considered a suspect in the murder of Zalal. It was hoped that the Respondent would be able to provide information about Zalal’s movements on the day of his death.

50Sergeant Hudson testified that he called to remind the Respondent about the upcoming interview the night before and during this conversation the Respondent told Sergeant Hudson “Mike, they’re going to kill me”. As a result of that comment, Sergeant Hudson testified that he was concerned about the Respondent’s safety.

51When he arrived at the station, on November 8, 2006 the Respondent was met by Detective Monette in the lobby and escorted through a secure door to the interview rooms on the second floor of the police station. The Respondent was then interviewed by Detective John Monette for approximately 42 minutes; the interview was video and audio taped and Sergeant Hudson was in an adjoining room monitoring the interview. The Respondent understood that the interview was being audio and video-taped.

52The Respondent was also told by Detective Monette that “Mike, he’s watching and listening and may or may not come in and ask you some questions, depending on how things go here.” The Respondent replied “Okay”.

53The Respondent was asked a number of introductory questions to which he confirmed that he had agreed to come to talk to police and that he had not been harassed or threatened into coming in to talk. The Respondent was informed that he was not under arrest or detention and that he was not suspected in the murder any more than anyone else at that point.

54Notwithstanding being told that he was not under arrest or detention, Detective Monette informed the Respondent that he could contact a lawyer if he wanted and Detective Monette offered to assist the Respondent in doing so. The Respondent told Detective Monette that he did not wish to contact a lawyer. Detective Monette informed the Respondent that he was free to leave at any time.

55The questioning was very straightforward and the tone of the interview was polite and generally respectful. The Respondent challenged Detective Monette as to why Zalal was not protected by police when he was killed and the Respondent chose to answer some questions and not others. For example he refused to talk about who he saw at Cosmos bar, although he continued to maintain a story that was consistent with the brief statement he had given to Detective Hill about his whereabouts on the afternoon and evening of Zalal’s death.

56Eventually, the Respondent ended the interview with Detective Monette, saying “I have nothing, no more to say you know, plus you got me on video, you know what I mean”. At that point, the interview ended and Detective Monette asked the Respondent if he would speak to Sergeant Hudson about a concern that he had voiced. The Respondent looked into the camera and said “And that’s for Mike, I didn’t say that”.

The Second Interview on November 8, 2006, Audiotaped

57Sergeant Hudson testified that he believed the Respondent knew more than he was telling and that he was concerned this might be his last opportunity to get that information. Sergeant Hudson was also concerned about the comment, “Mike, they are going to kill me” made during the phone call on the previous night, which he understood the Respondent had just denied on video tape.

58Because of his concerns, Sergeant Hudson had Detective Monette moved the Respondent to a second interview room without cameras and took a small audio recorder, turned it on and placed it in his pants pocket. He then entered the room and began talking to the Respondent, surreptitiously recording him.

59Sergeant Hudson testified that he asked himself whether surreptitiously recording the Respondent was the right thing to do and chose to do it as he believed an accurate record of the conversation was the most important consideration.

60Very shortly after the conversation began Sergeant Hudson affirmed his belief that the Respondent was a witness, not a suspect in the murder of Zalal and that he believed that the Respondent had not been forthcoming in his statement to Detective Monette. He reiterated this sentiment a number of times in their discussion although on one occasion, when the Respondent continued to indicate a reluctance to provide further information Sergeant Hudson challenged the Respondent about whether he might have been the one who killed Zalal, although when the Respondent denied that possibility, Sergeant Hudson made no further attempt to elicit a confession.

61The majority of the conversation was centred on the comment the Respondent had made to Sergeant Hudson the prior evening that “Mike, they are going to kill me”. Sergeant Hudson expressed concern for the Respondent’s safety and discussed various possibilities for the Respondent to provide information as a witness or as a confidential informant while being protected by the police. Sergeant Hudson explained the witness protection program to the Respondent.

62The Respondent told Sergeant Hudson that he would think about the proposals he made regarding providing information to the police and get back to him. The Respondent complained about the fact that a prior interview in a different investigation with a different Sergeant (“Brown”) had put his safety at risk. In referring to his earlier experience with Sergeant Brown, the Respondent commented that it was his belief that whether or not a camera was present, whatever he says to police may be recorded.

63After the Respondent informed Sergeant Hudson that he would consider the proposals Sergeant Hudson had offered, the interview ended with Sergeant Hudson escorting the Respondent to the exit area. Sergeant Hudson informed the Respondent that his obligation was to investigate the murder of Zalal and that he believed the Respondent knew more than he was saying. Sergeant Hudson assured the Respondent that the investigation would continue, that he was not going to go away and that he had a duty and a wish to protect the Respondent.

Positions of the Parties as to the Voluntariness of the Two November 8, 2006 Statements

64The Defence submitted that the Crown has failed to establish beyond a reasonable doubt the voluntariness of the November 8 video interview with Detective Monette. It was the Defence position that the statement should be excluded from evidence because: (i) it was tainted by the involuntary and inadmissible statement of August 22, 2006; (ii) it was involuntary because the Respondent was misled about his status in the investigation and his jeopardy; (iii) it was involuntary because the Respondent was misled about the use of the interview; and (iv) its probative value is outweighed by its prejudicial effect.

65With respect to the interview with Sergeant Hudson that was surreptitiously audiotaped, the Defence argued that it was a continuation of the video-recorded interview by Detective Monette and therefore tainted by the same evidentiary issues: the Respondent having been misled about his jeopardy and about the use of the statement, as well as its connection to the inadmissible statement of August 22, 2006.

66The Defence also argued that the audio-recorded statement should be excluded by the exercise of judicial discretion, because its prejudicial effect exceeds the probative value; that there is no probative value in the interview and the prejudicial effect is the same as the August 22 Statement and the November 8 Video Interview.

67Finally, the Defence submitted that the Audio Interview is filled with police opinions and commentary that are inadmissible and includes prejudicial information about the Respondent’s involvement in an unrelated homicide investigation that included allegations that the Respondent had intimidated a witness.

68Counsel for the Respondent submitted that if any of his earlier utterances are admitted then only the questions and answers wherein the Respondent was specifically asked and specifically denied responsibility for Zalal's death should be admitted from the November 8 Audio Interview.

69The Crown argued that both interviews demonstrate clear evidence that the Respondent understood and at all times had the ability to choose whether or not to talk to the police. The Crown submitted that there was never an air of oppression, and apart from the surreptitious recording by Sergeant Hudson, the interviews themselves were straightforward. The Respondent answered or did not answer questions as he saw fit.

70It was the Crown’s position that all of the questions in both interviews and in particular the offers by Sergeant Hudson to provide protection to the Respondent in exchange for the Respondent providing confidential information were consistent with Detective Monette and Sergeant Hudson’s evidence on the voir dire that as of November 8, 2006, the Respondent was a witness who knew more than he was willing to tell police, and is inconsistent with the Defence contention that the Respondent at that point was already a suspect who should have been provided the usual cautions.

71Because I have found that the August 22, 2006 statement made to Detective Hill is admissible, I do not need to address the issue raised by the Defence that the November 8 statements were tainted by that earlier statement. I will therefore address the remaining issues raised by the Defence regarding the November 8 statements.

The Respondent was misled about his status in the investigation and his jeopardy

72I do not accept the Defence position that the Respondent was misled about his status in the investigation and his jeopardy. It is true that by November 8, 2006 there was some evidence to implicate the Respondent in the murder of Zalal, however, all the evidence of Detective Monette and Sergeant Hudson clearly demonstrated that they believed the Respondent had pertinent information that could contribute to the investigation into Zalal’s death. In November 2006 the police had not formed any conclusions or suspicions about the actual murderer. This is evident from the number of leads they were following and eminently clear from Sergeant Hudson’s sincere invitation to the Respondent that protection could be provided to him as a confidential informant.

73The Respondent was never detained by the police, he attended the police station voluntarily and was informed he could leave, and indeed he did leave the interview when he chose to end the interview.

74I do not find that the Respondent should have been cautioned prior to being interviewed because I do not find that the Respondent was a suspect in November 2006. I accept the evidence of Detective Monette and Sergeant Hudson that they had no particular suspect in mind in November 2006 and that they wanted to interview the Respondent because of his involvement with Zalal on the afternoon of his death as well as the fact that they believed that the Respondent knew more about the murder than he had told Detective Hill.

75In light of the status of the investigation as set out by the evidence available to the investigation in November 2006, the police were following many different leads and they believed that the Respondent could provide them with information that might narrow their investigation. The questions they asked the Respondent are consistent with their evidence on this point and are not consistent with the Defence position that the police deliberately misled the Respondent about the purpose of the interview.

[76] I therefore find that evidence (as per Oickle) supports the Crown position that:

• No improper threats or promises were made to the Respondent to induce him to speak to police, and no improper quid pro quo was offered to him;
• There was no atmosphere of oppression used to obtained a statement from him;
• There was no evidence that the Respondent’s will was overborne; and
• There was no police trickery that would shock the conscience of the community that occurred.

The Respondent was misled about the use of the interview

77The Defence contends that because the Respondent was told that whatever information he provided to the police about other possible criminal conduct would not be used by them for any other prosecution, he was misled.

78In essence the police informed the Respondent, as they had with all the other witnesses who were believed to be part of a criminal gang culture, that they were investigating the murder of Zalal and in doing so, if the witnesses provided information that might suggest they or others had committed other criminal activity, such as drug dealing or breaching a condition of probation or parole, that those criminal offences would not be used against them in other prosecutions.

79Again, I do not accept the Defence submission on this point. The police were sincere in their promise not to use evidence of other criminal activity against the Respondent should such evidence be revealed in the course of their interview. The only inducement provided by this promise was an attempt to encourage the witnesses to speak freely about what they knew regarding the death of Zalal. It was made clear to the Respondent that whatever he did tell the police about the death of Zalal would be used in the murder investigation.

80The Respondent was therefore not misled about the nature of the questions he was being asked or the use to which his answers would be put. In fact, the Respondent continued to refuse to answer certain questions such as who he had seen at Cosmos bar, contending that he did not want to reveal any other names on the basis that he did not fully trust the police to keep that promise.

The probative value is outweighed by its prejudicial effect

81The Defence position regarding the probative value and prejudicial effect of the November 8 statements is the same argument that I rejected regarding the August 22 statement to Detective Hill. As such, I do not need to address these again.

82As with the August 22 statement, it will be necessary to provide an instruction to the jury on how they may consider the evidence regarding the statements made by the Respondent about having attended Cosmos bar on the night of the murder.

The Prejudicial Effect of the November 8 Audio Interview with Sergeant Hudson

83I do not find that surreptitiously recording the interview between Sergeant Hudson and the Respondent reaches the level of police trickery that would shock the conscience of the community. While the Respondent was not told he was being audio taped, it is apparent from the interview that he willingly spoke to Sergeant Hudson, and the fact that Sergeant Hudson may have misled the Respondent regarding the audio taping did not induce the Respondent to speak to Sergeant Hudson. In fact the Respondent indicated that he expected his discussions with the police were being recorded.

84The recording lends support to the position of the police that they were indeed conducting the interview with the Respondent, believing that he was a reluctant witness and not a suspect at that time.

85Having said that, I do find that the prejudicial effect of parts of the audio recording outweigh the probative value. I agree with the Defence position that those parts of the recording that deal with Sergeant Hudson’s opinions and commentary regarding other criminal investigations that had nothing to do with the Zalal investigation or any opinions that Sergeant Hudson offered in that interview are unnecessarily prejudicial to the Defence and shall be excluded.

86Those parts of the audio taped statement that relate to the investigation into the Zalal murder may be introduced into evidence.

Summary

87In summary, I find that the August 22, 2006 statement to Detective Hill and November 8, 2006 video statement to Detective Monette were voluntary and may be used in evidence. With respect to the audio statement by Sergeant Hudson, only those portions of the statement where the Respondent is interviewed about Zalal’s death may be admitted.

88If there is a disagreement between the parties as to which parts of and the manner in which the audio statement may be admitted, I will entertain further submissions on that issue.

Madam Justice B. R. Warkentin

Released: May 31, 2016

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION UNTIL THE END OF TRIAL PURSUANT TO SECTION 517 OF THE CRIMINAL CODE

COURT FILE NO.: 08-11565 DATE: 2016-05-31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Applicant - and – NAWAF AL-ENZI Respondent REASONS ON VOLUNTARINESS APPLICATION Warkentin J. Released: May 31, 2016