Court File and Parties

COURT FILE NO.: CRIMJ(P) 688/13 DATE: 20160819

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Andrew Falls, for the Crown Applicant

- and -

WAYNE ISAACS and AZHAR HUSSAIN M. Mark Fahmy, for the Respondent, Azhar Hussain Respondent

HEARD December 7, 11, 14, 15, 16, 17, 18, 2015, April 19, 20, 21, 22, 2016 at Brampton

RULING RE: VOLUNTARINESS

CHARTER APPLICATION

This Ruling is subject to a Non-Publication Order issued by the Honourable Mr. Justice Joseph Michael Fragomeni To Section 486. 4(1 Information contained herein is prohibited from publication by order of The Honourable Mr. Justice Joseph Michael Fragomeni

Fragomeni J.

[1] The Crown seeks an order admitting into evidence as voluntary two statements made by Azhar Hussain to the police on April 29, 2011 and September 30, 2011. The Respondent, Azhar Hussain seeks an order dismissing the Crown’s Application. The Respondent also seeks an order excluding the two statements as a result of Charter breaches.

STATEMENT OF THE CASE

[2] The Crown has succinctly set out the overview of this case at paras. 1 to 10 and 12 to 14 in his factum as follows:

1. In 2010, Peel Regional Police became aware that one of their police officers, Constable Carlton Watson, badge #1829, was fraudulently writing up official accident reports for collisions that never took place or that he never attended. It was learned that he was being paid cash ($1,000 to $6,000) for these reports by Wayne Isaacs, a Brampton area Tow Truck driver connected to First Canadian Towing and A&W Towing.
2. As the investigation progressed, the police discovered that Wayne Isaacs was also a 50% owner in a Brampton rehabilitation centre called, Brampton Total Rehabilitation (“BTR”), located at 239 Queen St East, Brampton. Wayne Isaacs opened the rehabilitation centre with two partners, Azhar HUSSAIN and Kishan Wadhwa
3. During the timeframe of this investigation, it was common business practice for BTR to pay referral fees to tow truck drivers like Wayne Isaacs for any patient that would attend their clinic for treatment. Tow Truck drivers that referred patients to a clinic such as BTR would be paid up to $3000 per patient that went for treatment.
4. The Peel Regional Police discovered that patients were referred to BTR by Wayne Isaacs as a result of 14 accidents that are alleged to have occurred. It is alleged that Mr. Isaacs staged the accidents involving the patients’ vehicles.
5. It is further alleged that the patients were never injured as a result of an accident. Indeed, in a majority of the alleged accidents no accident even occurred and the patient was not present when the respective cars were damaged.
6. Many of the patients named in the fraudulent accident reports would attend BTR and then be sent to BTR’s partnered business – Work Plus Assessments (“WPS”), which was owned by Azhar HUSSAIN and Krishan ARORA, for assessments such as psychological and in-home assessments.
7. Insurance claims were made to a number of insurance companies for services provided by both businesses, as well as, other accident benefits.
8. The investigation turned to the Respondent and he was spoken with on April 14th, 2011 at his place of business.
9. The Respondent was interviewed first on April 29th, 2011. This interview took place at 180 Derry Road east in Mississauga. This is a building operated by the Peel Regional Police that is home to their investigative bureau. Mr. Hussain attended that location on his own. The salutary practice of recording statements is observed in this case as all of the substantive comments made by Mr. Hussain are captured on video.
10. On April 29th, 2011, the Respondent was advised that the interview was being videotaped and he was asked to be honest with the police. He was advised that the police were investigating a fraud against “insurance companies” that began with a police officer named Carlton Watson and a tow truck driver named Wayne Isaacs. The Respondent was provided with his Rights to Counsel. The Respondent declined to exercise those rights. The Respondent was further cautioned that anything he said during that statement could be used in evidence and that anything another police officer may have said to him should not influence his decision to speak on that day (primary and secondary caution). This statement is approximately two hours in length.
11. On September 30th, 2011, Constable Morash and Detective McGarry, both of the Peel Regional Police, attended Pearson International Airport and arrested the Respondent after exiting a flight. The Respondent was aware that the police would be waiting for him. Both officers escorted Mr. Hussain to retrieve his luggage. While waiting for his luggage, Constable Morash advised Mr. Hussain of his right to speak with counsel and cautioned him that he did not have to speak with the police. Mr. Hussain was not handcuffed. He requested to speak with his lawyer at the police station. No statements were elicited from Mr. Hussain prior to speaking with his counsel.
12. Once at 180 Derry Road, Mr. Hussain spoke with his lawyer in private prior to making any statements to the police.
13. The Respondent was interviewed a second time after he spoke with his counsel. This interview also took place at 180 Derry Road east in Mississauga. The interview was videotaped. The statement is approximately 10 hours and 33 minutes in length.

[3] As a result of this investigation the Respondent and others were charged with the following two counts:

2. That they, between January 1st, 2009 and September 7th, 2011, at the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, unlawfully did commit the indictable offence of fraud and related offences under the Criminal Code, by staging automobile accidents and using the mechanism of rehabilitation clinics to claim fraudulent accident benefits from numerous insurance companies, and for the benefit of, at the direction of, or in association with a Criminal Organization, thereby committing an offence, contrary to section 467.12(1) of the Criminal Code of Canada;
3. That they, between January 1st, 2009 and September 7th, 2011, at the City of Brampton, in the Central West Region and elsewhere in the Province of Ontario, unlawfully did conspire and agree together the one with the other or others of them and with a person or persons unknown, to commit the indictable offences of fraud over five thousand dollars and uttering forged documents, contrary to section 465(1)(c) of the Criminal Code of Canada;

Crown’s Position re: April 29, 2011 Statement

[4] The Crown submits that this video statement was voluntary as his will and ability to communicate to Detective McGarry was articulated and clear. At all times the interaction between Mr. Hussain and Detective McGarry was polite and friendly. The Respondent provided information freely and without hesitation. No other person had any kind of influence on the Respondent that could have negated his understanding of options or his will to speak with the Peel Regional Police.

Crown’s Position re: September 30, 2011 Statement

[5] The Crown submits that this statement was voluntary as the Respondent’s will and ability to communicate to Cst. Morash was again articulated and clear. At times, the Respondent did not want to speak about certain topics so he changed the topic, mumbled or made his choice apparent. No other persons in authority had any kind of influence on the Respondent that would have negated his understanding of options, or his will to speak with the Peel Regional Police.

Respondent’s Position re: April 29, 2011 Statement

[6] The Respondent submits that the police did not make him aware of the jeopardy he was facing or make it known to him that he was a suspect in their investigation. They proceeded to interrogate the Respondent for a period of two hours without informing him that he was a suspect.

[7] The police made it appear to the Respondent that they were investigating someone other than him. The Respondent submits further that even though the police cautioned the Respondent, it was moot because the caution was not in relation to any perception on the Respondent that he was in fact facing any jeopardy. The police went out of their way to “set up” the interview in a way to put the Respondent at ease in answering questions, giving a cursory caution and then interrogating the Respondent for two hours.

Respondent’s Position re: September 30, 2011 Statement

[8] The police obtained a warrant for the arrest of the Respondent before the September 30, 2011 interview. The Respondent voluntarily surrendered himself through arrangements made by his legal counsel, Moshe Reiter, while the Respondent was in Pakistan with his family with his dying mother.

[9] The Respondent asserts that Mr. Reiter had an agreement with the police that as soon as the Respondent was arrested on his return from Pakistan he would be afforded his rights to counsel.

[10] The Respondent was arrested at the airport and taken into custody at about 1:00 p.m. on September 30, 2011. At 14:52 the Respondent is given an opportunity to speak to his lawyer.

[11] The Respondent was interviewed from 14:55 to 00:13 the next day.

[12] The Respondent submits that during the period of the interview he was in a very disturbed physical and mental state at the time just preceding the interview, the particulars of which are the following:

• he had not had much to eat or sleep over the last 72 hours preceding his departure to Toronto from Pakistan
• any sleep he did have was on a chair in a hospital bed next to his dying mother
• he was distraught over the fact that he had to leave his dying mother.

[13] In addition to all of that the Respondent asserts that he was awake continuously from his 7:00 a.m. departure from Pakistan to his arrival in Toronto on September 30, 2011 (25.5 hours). When he arrived in Toronto the Respondent had been awake for 40 continuous hours. The interview started two hours later and lasted for 10.5 hours. During the flight from Pakistan to Toronto the Respondent consumed minimal food or drink. The Respondent submits further that during the interview he was clearly exhausted and not able to fully comprehend and give answers to the questions being asked of him.

[14] Although Cst. Morash assured the Respondent he would get supper that did not happen until almost 12 hours later after the interview was completed.

[15] During the interview the Respondent requested to speak to his lawyer but the requests were not complied with. The Respondent tells the police that he is finished speaking with them and does not wish to say anything without speaking with his lawyer. Despite those requests Mr. Reiter is not contacted and the interview continues.

[16] Throughout the interview the Respondent appears to be dozing off, sleepy, tired, slouchy, uncomfortable and oppressed.

[17] In summary the Respondent submits that the cumulative effect of the police conduct resulted in an atmosphere of oppression. His right to silence was undermined to the point that it overbore his will not to speak.

[18] During the voir dire I had the opportunity to watch the two video statements. Counsel agreed that I could do so in my chambers. I also had the benefit of the transcripts prepared for each interview. Cst. McGarry and Cst. Morash also testified at the voir dire. It is important to review some of their testimony as it will give context to the analysis that follows. Mr. Hussain also testified and I will review portions of his testimony as well.

Evidence of Cst. Glen Morash

[19] Cst. Morash became the officer in charge of this investigation in July or August 2011. The fraud bureau became involved in April 2011.

[20] Cst. Morash described the investigation as large comprising of some 60 bankers boxes of documents and between 50 to 80 witnesses. The fraud investigation revealed that $2 million in claims had been sent to insurance companies fraudulently.

[21] With respect to the April 29, 2011 video statement Cst. Morash indicated he was not part of the interview. This interview was conducted by Cst. McGarry. Cst. Morash had no interaction with the accused on April 29, 2011. On April 28, 2011 he had received a phone call from Hussain in which Hussain was asking about the return of his computers. Hussain asked him to give a message to Cst. McGarry.

[22] In his mind at this point in time Cst. Morash was of the view that Hussain was only a person of interest. He had no idea what Hussain’s involvement was in this investigation.

Re: September 30, 2011 Video Statement

[23] Cst. Morash was aware that Hussain had retained a lawyer in August 2011, a Mr. Moishe Reiter. At this time Hussain had not yet left for Pakistan. After Hussain travelled to Pakistan arrangements were made for him to return to Canada and upon his arrival at Pearson Airport Cst. Morash, Cst. McGarry and Cst. Stafford attended at Pearson and arrested Hussain.

[24] At 1:19 Hussain was provided his full rights to counsel and cautioned. He was asked if he wanted to speak to his lawyer and he said yes.

[25] Hussain stated to the police the following: Told you what I knew when I came to pick up computers. I’m doing this voluntarily.

[26] Hussain was advised he was being arrested for being a participant in a criminal organization, fraud, and possession of proceeds of crime. Hussain confirmed he had spoken to his lawyer prior to arriving back in Canada from Pakistan.

[27] In his review of the September 30, 2011 Video Statement Cst. Morash made the following comments and observations:

• Hussain was very conversational
• When Cst. Morash leaves the room during certain portions of the interview he does not work on any other file
• Cst. Morash did not anticipate that the interview would have lasted as long as it did
• he had planned to get Hussain dinner sooner but Hussain was very conversational so he continued to ask him further questions.
• having watched the video again Cst. Morash acknowledges that Hussain looked tired. Despite that, however, Hussain was engaged
• Hussain never requested food
• Hussain never requested his medication either on video or off video
• Cst. Morash made no observations of medical distress that caused him any concern
• Hussain’s demeanour was calm, engaged, and conversational. He was not in an agitated state.
• Hussain’s responses were on topic

[28] The defence concedes that there were no promises, no threats, no assaults and no inducements. The only issue raised by the defence was whether the conditions of the interview were so oppressive that Hussain did not have an operating mind.

[29] In cross-examination by the Defence, Cst. Morash confirmed or acknowledged the following:

• Mr. Reiter had facilitated Hussain’s surrender and Mr. Reiter was told that Hussain was not a minor player in this investigation.
• at the time of his arrest at the airport Hussain is advised of the charges he is facing. In addition to that Hussain had spoken to his lawyer, Mr. Reiter. Hussain had also spoken to Kenny Arora and his girlfriend about the investigation. Hussain had also done a Google search about the investigation. With all of this information there is no doubt in his mind that Hussain was well aware of his jeopardy.
• By April 29, 2011 the primary focus of this investigation was Carlton Watson and Wayne Isaacs.
• The April 29, 2011 interview was conducted by Cst. McGarry.

Re: September 30, 2011 Video Statement

The Cross-Examination Of Cst. Morash

• The interview was conducted at the Fraud Bureau
• Cst. Morash had not anticipated that the interview would take as long as it did
• for the first three hours Hussain was talking freely and not being challenged. Cst. Morash was building a relationship with Hussain to some degree
• this was his longest interview
• when Hussain stated “I think we enough discussion now… I need with my lawyer to be talking”, Cst. Morash did not, within the context of this interview, interpret this to mean he was asserting his right to a lawyer. Hussain is indicating to him he does not want to talk anymore so Cst. Morash tells him, “You can sit there and just listen.”
• when Hussain is taken to the washroom by Cst. McGarry, Cst. McGarry is heard on the video saying, “We appreciate your helping us out. We’re almost done. Just co-operate a bit more. Just a few more questions. Stay co-operative.” Cst. Morash was not aware Cst. McGarry had said any of these things to Hussain and he sees no link to Hussain continuing to answer questions to what Det. McGarry said to him.
• at 21:53 when Hussain again says he is done co-operating and any more questions go through his lawyer, Cst Morash takes the position that because the accused uses the word lawyer that does not mean he is going to stop asking questions.
• at no time does Hussain state he wants to talk to his lawyer now, right then and there, so he continues asking questions
• Cst. Morash does acknowledge it was a mistake not to have fed Hussain earlier

[30] Near the end of the interview at page 258 of the transcript Hussain wants to ask him some questions so even at this point in time Hussain is not “out of it”.

Det. William McGarry

[31] Det. McGarry’s first involvement in this investigation was on April 14, 2011 assisting in the investigation of Carlton Watson and Wayne Isaacs. At this point he had no idea of Hussain’s involvement. By April 29, 2011 he had formulated an opinion that Hussain was a suspect and he wanted to interview him.

[32] By April 29, 2011, Cst. McGarry had informed himself of parts of the investigation but knew nothing of how the clinics operated. He wanted to speak to Hussain about how the clinics operated. At this point Hussain was clearly a suspect.

[33] With respect to the events after the April 29, 2011 video statement, Det. McGarry testified that he first spoke with Mr. Reiter on September 16, 2011. A September 21, 2011 e-mail from Mr. Reiter set out Hussain’s itinerary for his return from Pakistan.

[34] A September 27, 2011 e-mail to Mr. Reiter confirmed Hussain would be held for a special bail hearing. Det. McGarry made it clear to Mr. Reiter that Hussain was more than a minor player in this investigation.

[35] Cst. McGarry attended at the airport with Cst. Morash to effect the arrest of Hussain. Cst. Morash did advise Hussain of his Rights to Counsel and he was cautioned.

Re: Sept 30, 2011 Video

[36] Cst. McGarry monitored the video from outside the video room. He took no active role in the interview as it was Cst. Morash’s interview. There was no plan to stretch out the interview, however, it took a long time.

Cross-examination of Cst. McGarry

• Cst. McGarry was aware Hussain had anxiety but he was not concerned. Hussain is a grown man. If he needed his medication he could have asked for it
• Cst. McGarry denied ever telling Mr. Reiter they were only going to ask Hussain about immigration issues
• Det. McGarry testified that if Hussain had asked to speak to his lawyer during the interview he would have let him do so. He would have stopped questioning an accused and put him in touch with his lawyer.
• on April 14, 2011, Hussain’s clinics are being searched pursuant to a Search Warrant. Det. McGarry arrives while the search is going on. Hussain arrives after him. Det. McGarry tells Hussain that they are seizing documents related to staging motor vehicle accidents and for internal affairs who are investigating a police officer and a tow truck driver. People with fake injuries are being sent to his clinics. On April 14, 2011 Det. McGarry has not yet determined that Hussain is a suspect.
• Hussain knew that on April 29, 2011, when he attended to pick up his computer, that he would be interviewed.
• by the April 29, 2011, Det. McGarry formed the opinion that Hussain was a suspect but he testified that he was not obligated to tell Hussain that and he had not yet made up his mind whether he would be charging Hussain.
• Det. McGarry stated that the caution he read to Hussain also applies to suspects.
• when Hussain attended the police station the day of April 29, 2011 he knew why he was there and he knew what the investigation was about and he knew what his jeopardy was, although he does acknowledge that there is no mention that he himself was being investigated.

Re: September 30, 2011 Video

• Det. McGarry interpreted the words “I need with my lawyer to be talking” to mean he needs to speak to his lawyer and he would have facilitated it.
• the words he said to Hussain on the way to the washroom were not promises or inducements. It was simply small talk on the way to the washroom
• At 21:57 and 21:57 when Hussain says “…then I’ll talk to my lawyer…” Det. McGarry noted that Hussain is saying I will talk to my lawyer not I want to talk to my lawyer right now.

AZHAR HUSSAIN

April 14, 2011

[37] On this day the police were at his clinic. Hussain became aware that the police had a Search Warrant and were at the clinic searching the premises. As a result he attended at his clinic and the first person he met was Det. McGarry. When he arrived at his clinic all the items had already been loaded into a truck.

[38] Hussain was advised by Det. McGarry that this was an Internal Affairs Investigation.

[39] Det. McGarry interviewed Hussain for 1- 11/2 hours. He asked Hussain about Carlton Watson and Wayne Isaacs. After the interview Hussain was in shock. All he knew was that this was an internal affairs investigation about a Carlton Watson.

[40] Between April 14 and 29, 2011, he made arrangements to retrieve his computers. He contacted the police and spoke to Cst. Morash who was asked to relay a message to Det. McGarry. Arrangements were made for him to attend and pick up his computers. Nothing was said about an interview.

[41] On April 29, 2011 Hussain attended at 180 Derry Rd. Police Station to pick up his computers. He had no idea he would be interviewed by Det. McGarry.

[42] Initially Det. McGarry told him the interview would be brief, 5 to 10 minutes. Hussain thought he would only have to pick-up his stuff and sign some documents for its release to him. When he was advised of his Rights to Counsel and cautioned, as depicted on the video, he thought it was protocol for the release of his property.

April 29, 2011 Video

Hussain testified that this interview was part of the routine to enable him to retrieve his property. He never thought he was in any kind of trouble at all.

Events Leading up to Sept 30 2011 Video Statement

[43] Hussain testified about the dire health conditions of his mother in Pakistan. He was in Pakistan with his mother. While in Pakistan he became aware of an arrest warrant for his arrest. He called his lawyer, Mr. Moishe Reiter. Hussain decided to come home and face the charges.

[44] After spending time with his mother who was in the hospital he eventually flew back to Toronto on September 30, 2011. He had not slept or eaten during the long flight from Pakistan.

September 30, 2011

[45] When he arrived at Pearson Airport he was met by Cst. Morash and Det. McGarry. Hussain testified that he was not read his rights, nor was he told what the charges were. He does not remember what was said in his conversations with the Officers. Although he came back to Canada voluntarily he was not here to give any statement.

September 30, 2011 Video Statement

[46] Hussain testified that the reason the call to his lawyer was so brief was that he was under the impression that the police were recording and listening in on his private conversation with Mr. Reiter.

[47] Hussain was also under the impression the interview would be brief, 15 to 30 minutes. He was very fatigued, depressed and scared when the interview commenced.

[48] Throughout the interview he is tired, sleepy, and trying his best to keep himself awake. He was scared and filled with anxiety. He was afraid to ask Cst. Morash for anything. In Pakistan if you ask for water you get a slap.

[49] When Det. McGarry took him to the washroom Det. McGarry told him there were just a few more questions and then they would let him go. Hussain thought the interview was almost over. That is why he continued to answer questions. As he did he was weak, cold, depressed, and scared. He did not know what Cst. Morash was going to do to him. All he wanted to do was talk to his lawyer. At 22:32 he states:

AZHAR: So tomorrow if there’s a – because I’m available regardless the bail is not bailed, uh, whenever you guys need and wherever. OFFICER: Well... AZHAR: I’m always there and I will be-, whenever, you could just call. I’ll be one call away from you guys.

When asked what he meant by this he could not remember what he meant.

Cross-Examination by Crown

[29] In cross-examination by the Crown, Hussain confirmed or acknowledged the following:

• prior to April 14, 2011 he had no knowledge of this investigation
• prior to April 14, 2011 he only suspected one possible fraudulent claim relating to the Melissa family
• on April 14, 2011 search warrants were executed at his two clinics
• he thought Detective McGarry was an investigator for Internal Affairs investigating corrupt police officers. Hussain did not think he had anything to worry about
• April 29, 2011 - Video - he attended on this day at the police station to pick up his computers. He met Det. McGarry. He had no idea Det. McGarry was a police officer
• he was never advised by Det. McGarry that he was involved in these fraudulent claims
• the emphasis of the interview with Det. McGarry was how the clinics operated
• he thought the interview was protocol for the paperwork to get his computers back, despite the fact that the interview questions had nothing to do with the return of his computers nor is he asked during the interview to sign any papers for this purpose
• when Det. McGarry advised of his right to call a lawyer he did not understand it 100 per cent. His mind was not working. He did not get the impression he could call a lawyer right then and there. He also stated he had difficulty with the English language.
• the interview related to his clinics and he was able to understand and answer those questions
• prior to video, Det. McGarry assured him he would be leaving after he got his computers. They were only investigating the police officer, so he spoke to Det. McGarry in that context. Why would he need a lawyer in those circumstances?

April 29, 2011 to September 30, 2011

• after April 29 he became aware that the police are also investigating him. He contacted his lawyer to turn himself in. He also wanted to get his computers back.
• his lawyer, Mr. Reiter, told him there was an arrest warrant out for his arrest
• he checked the internet for particulars of the investigation
• Hussain had travelled to Pakistan for his ill mother and he told Mr. Reiter of this
• Arrangements were made for his surrender

September 30, 2011

• he cannot recall the conversation he had at the airport when he arrived with Cst. Morash and Det. McGarry
• at the start of the video it shows that he did speak to his lawyer. He kept it brief because he had the impression the call was not in private and was being listened to by the police
• at page 157 of the transcript when he says, “I need with my lawyer to be talking…”, he wanted at that time to talk to his lawyer.
• throughout the interview when he mentions his lawyer, he is telling Cst. Morash he wants to talk to his lawyer then and there
• the reason he continued to answer questions was because he was scared they might hit him if he did not and he did not know how to make a formal request to speak to his lawyer
• Hussain stated that Cst. Morash did not treat him fairly, nor was he polite to him
• Hussain was sitting on a hard uncomfortable chair and he felt like a prisoner
• he did not ask Cst. Morash anything because in Pakistan you would be beaten up if you ask questions. Hussain asked “You know how the police are in Pakistan?”
• although he testified he was scared of the police during the interview he could not answer Crown counsel’s question of how this fear affected his behaviour at the interview and answering the questions being asked
• the lengthy interview felt like torture

Agreed Statement of Fact Re: Hussain’s Call to His Lawyer

[51] In an Agreed Statement of Fact counsel confirm that at no time was Hussain’s call to his lawyer listened to by the police. There is no evidence to support Hussain’s assertion on that point. The Agreed Statements of Fact sets out the following:

The following facts are agreed between the Crown, as agent for Her Majesty the Queen, and the Defendant, Azhar Hussain, for the purposes of the pre-trial motions in this matter:

September 30th, 2011 Statement of Azhar Hussain

1. It is agreed that on September 30th, 2011 the police facilitated a private conversation between Azhar Hussain and his counsel, Moishe Reiter.
2. It is agreed that Mr. Hussain engaged in a private conversation with his lawyer, Moishe Reiter.
3. It is agreed that Constable Glen Morash and Detective William McGarry or any other member of the Peel Regional Police (“the Police”) did not listen to Mr. Hussain’s telephone conversation with his counsel in any manner, including through the use of another telephone receiver connected to the call in process between Mr. Hussain and his lawyer (i.e. “3 way call”).
4. The police did not audio record the conversation Mr. Hussain had with his counsel.
5. The police did not video record the conversation Mr. Hussain had with his counsel.
6. The interview room in which Mr. Hussain spoke with his lawyer is the same interview room in which he was ultimately interviewed.
7. Immediately outside the interview room is a monitoring station equipped with a video monitor which allows the police to view inside the interview room.
8. During the conversation with counsel, the police were able to view and did view Mr. Hussain inside the interview room. There was no audio and the police did not hear any of the conversation Mr. Hussain had with his lawyer.

Governing Legal Principles

[52] In R. v. Mohamad, 2014 ONSC 1348 McIsaac J. sets out the following at paras. 13 and 14:

13 Both sides have referred me to the controlling judgment of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. I glean three basic principles from the judgment of Iacobucci, J.:

• the confessions rule has the twin goals of protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes [para. 33];
• the entire circumstances surrounding a confession must be considered in assessing voluntariness [para. 68]; and
• although the doctrines of oppression and inducements are primarily concerned with reliability, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process" [para. 69].

14 To these basic concepts I would graft the Charter guarantee of the right to silence, the breach of which may impact upon the exercise of free will in the making a statement: see R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 53. In that passage, Charron, J. for the bare majority made it clear that a crude quantitative calculation of assertions did not suffice. On the other hand, the 18 "unequivocal" assertions of the right to silence would have led to exclusion according to the minority judgment of Fish, J. Nonetheless, the police are not required to retreat automatically once a detainee expresses a desire to remain silent: see R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 at para. 63.

[53] In R. v. Davis, 2011 ONSC 5564 van Rensburg J., as she then was, stated the following at paras. 11, 34 and 36:

11 The test in Oickle should be understood by reference to two subsequent Supreme Court of Canada decisions: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 and R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. These cases emphasize that the right to silence is encompassed in the confessions rule. In her opinion for the majority of the Court in Singh, Charron J. noted at para. 35: Ten years later, this Court in Oickle made express reference to the analysis in [R. v. Hebert, [1990] 2 S.C.R. 151] and embraced this modern expansive view of the confessions rule which, significantly for our purposes, clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities. At para. 38 Charron J. stated, "The mere presence of a doubt as to the exercise of the detainee's free will in making the statement will suffice to ground a remedy". This was emphasized by McLachlin C.J. and Charron J. in the majority decision in Sinclair at paras. 58 and 62.

34 The repeated assertions by Mr. Davis that he knew nothing and his blunt denials are consistent with an effort to remain silent, rather than the exercise of free will. As Binnie J. observed in Sinclair, (at para. 104), the reality is that a suspect may choose to co-operate on some issues but not on others. While Mr. Davis may have engaged in conversation with the officer on innocuous topics, even at times with some apparent interest, whenever Constable Kimlin broached any of the circumstances relevant to the offence, he consistently responded with an assertion of his right to silence, or that he knew nothing or with a blunt denial.…

36 This is not a case where the accused asserted his right to remain silent initially but then chose to waive that right. Mr. Davis repeatedly throughout the course of the interrogation, referred to his counsel's advice, and the fact that he had nothing else to say and that he did not have to say anything. The answers he gave to the questions about the offence were not voluntary; they were the product of the repeated police questioning in the face of Mr. Davis' stated intention to remain silent. In fact, they were an attempt to deflect the questioning. By continuing the questioning, the officer demonstrated that while the right to remain silent may have existed in theory, it ultimately provided no protection to Mr. Davis.

[54] In R. v. Singh, 2007 SCC 48 the Supreme Court of Canada dealt with the issue relating to voluntariness and its intersection with an accused’s right to silence. At paragraphs 13 to 17 Charron J. set out the following:

Before the interviews, Mr. Singh was given proper Charter and official police warnings and spoke to counsel by phone and in person. During the interviews, Mr. Singh spoke with the interviewing officer about his family, his background, his religious beliefs and his employment. He also discussed injuries he sustained when he was shot at a party. Whenever the discussion turned to the incident in question, however, Mr. Singh was less forthcoming. Although he provided some information regarding his presence at the pub on the night of the shooting, he repeatedly denied his involvement and asserted his right to silence. He indicated that he did not want to talk to the police, that he had nothing to say, that he knew nothing about the shooting, or that he wanted to return to his cell. Before Mr. Singh was shown the photographs in question and made the impugned admissions, he asserted his right to silence 18 times. Each time, the interviewing officer would either affirm that Mr. Singh did not have to say anything, or would explain to Mr. Singh that he had a duty or desire to place the evidence before him and he continued the interview.

On the voir dire to determine the admissibility of the two statements made by Mr. Singh, Bauman J. instructed himself that the central issues were whether the Crown had proven beyond a reasonable doubt that the statements were made voluntarily and, alternatively, whether Mr. Singh had proven on a balance of probabilities that there was a breach of his right to silence under s. 7 of the Charter. Mr. Singh did not testify and called no evidence on the voir dire.

Bauman J. held that nothing in the police officer’s conduct was so oppressive as to overbear Mr. Singh’s will. He noted that the stratagem of placing evidence before an accused to extract a confession, no matter what the suspect says, runs the risk of being construed by the reviewing court as depriving the suspect of the right to make a meaningful choice whether to speak to the authorities or not, stating that “it is all a matter of degree” (para. 35). After reviewing all of the circumstances surrounding the interrogation and the making of the incriminating admission, he held that Mr. Singh’s admission that he was in the still photograph came freely and did not result from the police systematically breaking down his operating mind or undermining his right to silence. He concluded that Mr. Singh was well aware of his right to silence and that he had successfully exercised it repeatedly. Finally, Bauman J. held that the probative value of the statements outweighed their prejudicial effect and ruled that the statements, with some editing as agreed to by counsel, were admissible.

Mr. Singh did not testify and did not call evidence at trial. He was convicted of second degree murder by a jury.

Mr. Singh appealed from his conviction to the British Columbia Court of Appeal (Hall, Mackenzie and Thackray JJ.A.). He did not contest that the statements were voluntary and confined his appeal to the s. 7 Charter issue. Much as he did in this Court, Mr. Singh argued that the proper application of the s. 7 right to silence required the police to stop trying to obtain admissions once the detainee asserted his right to silence. He argued further that the trial judge’s approach erroneously subsumed the Charter right to silence under the common law confessions rule, leaving s. 7 with virtually no significance.

At paragraph 47, Charron J. states the following:

Mr. Singh takes particular issue with the leeway afforded to the police in questioning the detainee, even after he has retained counsel and has asserted his choice to remain silent. He submits that courts have erroneously interpreted the underlined passage above as permitting the police to ignore a detainee’s expressed wish to remain silent and to use “legitimate means of persuasion”. I say two things in response to this argument. First, the use of legitimate means of persuasion is indeed permitted under the present rule — it was expressly endorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities. As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct.

Finally at paragraph 53, Charron, J. notes:

It must again be emphasized that such situations are highly fact-specific and trial judges must take into account all the relevant factors in determining whether or not the Crown has established that the accused’s confession is voluntary. In some circumstances, the evidence will support a finding that continued questioning by the police in the face of the accused’s repeated assertions of the right to silence denied the accused a meaningful choice whether to speak or to remain silent: see Otis. The number of times the accused asserts his or her right to silence is part of the assessment of all of the circumstances, but is not in itself determinative. The ultimate question is whether the accused exercised free will by choosing to make a statement: Otis, at paras. 50 and 54.

[55] The voluntariness assessment must be a cumulative and contextual one. In R. v. Hankey, [2008] O.J. No. 2548 (Sup. Ct.) the court stated the following at paras. 32 and 37:

In these circumstances, in my view, the interview process by itself did not render the videotaped statement less than voluntary. However, that process in combination with the statements which I will review did in fact adversely affect its voluntary nature. These statements had the effect of sowing the seeds of doubt in the mind of the accused as to the legal advice he was receiving and as to whether the decision to refuse to make any statement to the police at that time might adversely affect his position and his appearance at trial. For example, on an occasion when the accused told the officer that his lawyer told him not to say anything, the officer stated that they were dealing with a very unusual circumstance. This implied that a departure from the advice of his lawyer to remain silent might be justified. The interview then moved to a statement by the officer to the accused that they had videotaped evidence from three or four squeegee kids and this was an opportunity for the accused to tell his side of the story. The officer stated:

... what sounds more credible, like a jury that's gonna judge what you did is going to see this video tape, okay, and ... and that jury is probably gonna listen to you testify. Now, I've always wondered what is more credible when somebody is brought in, into a fair system. This is very fair. Your ... statement is videotaped and they're confronted with evidence that implicates the person. Does it look better at this particular point that you sit there with your head in your arms like that disrespecting me and the system or does it look better if you say, "You're absolutely right, I was there, I'm not denying the fact that I was there ... and this is exactly what happened".

As I have stated, in the present case it is the cumulative effect of the context of the persistent questioning of the accused combined with the statements by the officer, which I have reviewed, the effect of which eroded the confidence of the accused in the legal advice he had received from counsel, which I find to have affected the operating mind of the accused.

April 29, 2011 Statement

[56] The position of the Respondent relates to the issue of jeopardy. In order to give context to this submission it is useful and informative to set out portions of the video transcript.

[57] It is important to note that on April 29, 2011 the Respondent had not been arrested or charged with any offence. The circumstances that resulted in his attendance at the police station that day were explained by Cst. McGarry in his oral testimony. Hussain also testified in that regard.

[58] The April 29, 2011 interview starts at 10:33 and the Respondent is advised that there is a camera in the room and everything is being audio taped and videotaped.

[59] The following exchange is relevant on the issue of jeopardy:

OFFICER: Um, it’s my duty to inform you that you have the right to retain and instruct counsel without delay, do you understand that? HUSSAIN: Okay. OFFICER: Okay. Uh, you have the right to telephone any lawyer you wish, do you… HUSSAIN: Okay. OFFICER: …understand that? HUSSAIN: Yeah. OFFICER: Um, you have the right to free advice from a Legal Aid lawyer. HUSSAIN: Mm-hmm. OFFICER: Do you understand that? HUSSAIN: Okay. OFFICER: If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance, 1-800-265-0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now, do you understand that? HUSSAIN: Okay. OFFICER: Um, do you wish to call a lawyer now? HUSSAIN: No, I’m okay. OFFICER: Okay, and there’s another thing that I read to you here. 10:41 Um, what we’re investigating, okay, the-, is allegations of fraud against insurance companies, okay? And it all started off with that, uh, that man that the police officer, uh, a police officer by the name of Carlton Watson and a tow truck driver by the name of Wayne Isaacs. That’s what we’re investigating, okay? HUSSAIN: Okay. OFFICER: Do you understand that? HUSSAIN: Yeah. OFFICER: So as you know, you know what we’re looking into here, okay? HUSSAIN: Mmm. OFFICER: Um, do you wish to say anything in answer to this charge? You’re not obliged to say anything unless you wish to do so but whatever you say may be given in evidence, do you understand that? HUSSAIN: Okay, yeah. OFFICER: Okay. I’m gonna re-, I, I don’t believe that you’ve spoken to any other police officers but, um, I’m gonna read this to you, as well. If you’ve spoken to any police officer or to anyone with authority or if any such person ham-, has spoken to in connection with this case, I want it clearly understood that I do not want it to influence you in making a statement. Make-, nobody can make you give a statement. You have to do it of your own free will. HUSSAIN: Okay. OFFICER: Do you understand that? So no other police officers influenced you and made you-, and told you have to give us a statement, correct? HUSSAIN: No. OFFICER: No. No, no. Okay, like I said, just speak up nice and loud, nice and clear. HUSSAIN: Mmn. OFFICER: Um, got a fair, fair amount of things to cover here but the, the main thing is that it’s basically about the history of the business. That’s, that’s what I wanna have clear in my mind, okay… HUSSAIN: Mm-hmm. OFFICER: …is, is how this company works and, and how you do your business. HUSSAIN: Okay. OFFICER: That’s the ma-, that’s the main theme of what we’re doing here. HUSSAIN: Okay.

Conclusion

[60] The Respondent was aware as early as April 14, 2011 that the police were looking into his businesses. The police were seizing computers and interviewing staff. The Respondent has agreed that he takes no issue with the statement given to the police on April 14, 2011.

[61] When the Respondent attended at the police station on April 29, 2011 to pick up his personal items he was asked to give an interview. Within the context of what had transpired on April 14, 2011 it would have been clear to him that the police wanted to ask him questions about the business.

[62] Cst. McGarry asks the Respondent if he wishes to speak to a lawyer and he says no. Cst. McGarry makes it clear to him that he does not have to talk to him, “nobody can make you give a statement”.

[63] Cst. McGarry tells him that whatever he says may be given in evidence. The difficulty here of course is that he does not tell the Respondent the evidence can be used against him in court in the event that he is charged with a criminal offence.

[64] Cst. McGarry does tell the Respondent they are investigating a fraud against insurance companies and that the investigation relates to Carlton Watson and Wayne Isaacs. Cst. McGarry does not make it clear to the Respondent that they are also gathering information that may be used to charge him. On the contrary, what Cst. McGarry tells the Respondent is that the main thing he is concerned about is the history of the business, how the company works and how he does his business. As he states to the Respondent “that’s the main theme of what we’re doing here.”

[65] I am not satisfied beyond a reasonable doubt that the Respondent was aware of the fact that what he is saying to Cst. McGarry was evidence that could be used against him if he was ultimately charged with an offence. I am satisfied that as a result of his interaction with the police on April 14, 2011 that he knew the police were investigating something. On April 29, 2011 Cst. McGarry made it clear they were investigating insurance frauds and that the people involved in these frauds were Carlton Watson and Wayne Isaacs.

[66] The rights to counsel and cautions given to the Respondent without charges being laid or without a detention being invoked are confusing. It is clear from the testimony of Cst. McGarry that at this point in the investigation the police did not have grounds to charge the Respondent. However, without making it clear to the Respondent that what he was telling the police may not only be given in evidence but that it may be given in evidence as against himself if he is charged it is difficult to conclude that Hussain would have known this. That was not made clear to him. The pro-forma rights to counsel and caution, therefore, within that context were insufficient to correct that deficiency.

[67] I am not satisfied that the April 29, 2011 is voluntary. On that basis, it is not admissible.

September 30, 2011

[68] Again, it is useful and informative to set out portions of the video transcript with respect to the areas of concern raised by the Respondent.

Rights to Counsel and Right to Remain Silent

[69] At page two of the transcript, Constable Morash acknowledges that the Respondent had access to his lawyer and the Respondent advised that he was satisfied with the conversation he had with his lawyer.

15:51 Officer 2 enters the room. OFFICER 2: (Picks up the phone.) Are you there? OFFICER: (Speaking from outside the room.) (Inaudible.) Got him? OFFICER 2: Hello, Moishi? OFFICER: You got him? OFFICER 2: Hello? Are you there? Okay, just one second. I’ll just pass over the phone. Hold on one sec. There you go. 14:52 Officer 2 leaves the room. 14:54 Officer enters the room. OFFICER: I see you hung up. You-, you had an opportunity to speak with your lawyer? AZHAR: Yes. OFFICER: And you’re satisfied with that conversation? AZHAR: Yes.

[70] The Respondent testified that the reason his conversation with his lawyer was so brief was due to the fact that he felt the conversation was being monitored.

[71] Constable Morash testified that the Respondent’s perception that his conversation was not private is not accurate. The conversation the Respondent had with his lawyer was private and in no way was it being listened to by the police.

[72] I do not accept the Respondent’s evidence on this point. I accept the testimony of the officers that the conversation was private. The Respondent clearly indicated to Constable Morash that he was satisfied with the conversation. The Respondent up to this point had been treated fairly by the officers. If he did have a concern or question about the privacy of the conversation, he could have easily raised it with the officers. There is nothing, other than mere speculation on the part of the Respondent, on the record before me to support the concern raised by the Respondent on this issue. The Agreed Statement of Facts on this issue is clear evidence that Hussain’s testimony in this regard cannot be accepted.

[73] I am satisfied that the Respondent was provided with an opportunity to talk to his lawyer. The fact that the conversation was brief does not in any way fall at the feet of the police. It is reasonable to find that since the Respondent had already been in communication with his counsel, Moishe Reiter, to arrange for his voluntary return from Pakistan that they had communication about the process of his return and being taken into custody. It is reasonable to conclude that they discussed his rights, including the right to remain silent. This is a reasonable inference and not one based on speculation or conjecture

[74] I am satisfied, therefore, that the Respondent was advised of his right to contact Moishe Reiter and having done so was given an opportunity to obtain legal advice as required by s. 10(b) of the Charter.

Right To Silence

[75] The Respondent asserts that throughout the interview he advised the police he did not want to continue talking to them, however, those requests were ignored. The following exchanges set out in the transcript are relevant on this issue:

16:02 OFFICER: Now, I, I know you’ve had discussions saying-, you understand why you’re here? Again, ‘cause I’ve mentioned it when were in the airport as well, and I, I know you’ve had a conversation since then. So you understand why you’re here, correct? AZHAR: Yes. OFFICER: Okay. Um, and I understand that, uh, through your lawyer, as well, you’re advising me that you made arrangements to come back to… AZHAR: Yes. OFFICER: …to deal with this. And that you were doing that of your, 16:03 your own choice to adjust your plans. And I understand you were telling me that your mother is-, um, possibly had a brain hemorrhage…

[76] On page 157 at about 19:10, the Respondent expresses for the first time he needed his lawyer:

OFFICER: Um, that’s what we’ve been looking at for the last few months. Okay. Um, I’m gonna step out for a minute and 19:10 Then grab some, uh, documents. And I’m gonna go over some things that we’ve already talked about. Um, when I come back in if there’s something that you’d like me to know in advance of that I would ask that you tell me then. AZHAR: Uh, I think we enough discussion now, and now the further we need-, I need with my lawyer to be talking. OFFICER: Mm-hmm. AZHAR: Okay? So I, I enough co-operated you guys. OFFICER: Mm-hmm. AZHAR: So I tr-, I try my best level, whatever I know. And about further… OFFICER: Yeah, that’s fine, you, you can sit there and just listen. AZHAR: Yeah. OFFICER: But, uh, I’ll be back. And if there’s something you want to tell me before I Start talking to you a little bit more… AZHAR: Mm-hmm. OFFICER: …then plead do so when I come back in. Um, there’s a number of things that you’ve told me that, um, cause me to doubt a lot of what you’ve already told me, okay? And we’ll go through some of those things, okay?

[77] Page 231 to 232:

OFFICER: Okay. And then we’ve already discussed the some, and I only say that some because I want to eventually go home tonight, of the people that we’ve interviewed, and I told you that they told you-, they told us that you said, stick to the 21:49 story, don’t change it, fabricate your injuries, this is how you do it. You need to score higher on your psych scores, this is how you do it. By the way, you guys told me to put five people in the car, and you don’t question this lady at all. You say everything’s okay, business is fine. It’s all… AZHAR: Well… OFFICER: …good. AZHAR: …bring that ladies who’s saying, uh, when I, when I said to her or when I talk to these people… OFFICER: Mm-hmm. AZHAR: …too. OFFICER: She’s already came in and given a videotaped statement. AZHAR: Okay, so… OFFICER: It’s done. AZHAR: Okay. OFFICER: We’ve interviewed her. AZHAR: Okay, fine. OFFICER: We’ve talked to Khan. We’ve talked to Gil. We talked to Da Costa (ph). AZHAR: Okay, fine, fine. Bring all the people to the lawyer and talk to, to the lawyer. OFFICER: We have no… AZHAR: Because… OFFICER: …problem with that. AZHAR: M-… OFFICER: We will. AZHAR: Okay, no problem.

[78] Page 235

21:52 OFFICER: How much money is in it? AZHAR: I don’t know. OFFICER: Why don’t you know? AZHAR: This thing you, you have to talk with my lawyer (inaudible) talk about it because now, I, I cooperate enough so we have to talk to them-, to lawyer. And even though he said to me, talk to me, uh, whenever they have (inaudible). OFFICER: Your conversation with your lawyer is private. I don’t need to know what you talked about. AZHAR: Okay. So then, then we’ll talk to lawyers. OFFICER: How come you and Kenny go to your safety deposit box in Georgetown that’s assigned to Work Plus Assessment, take an hour, close that box down, and then you both go to the CIBC safety deposit box in Oakville? Your wife didn’t go there. You went there. AZHAR: That’s-, I said, talk to the lawyer because now, I’m 21:53 already… OFFICER: Is that why you came back is for the safety deposit box? AZHAR: Safety deposit not issue. I came to clear my position. I, I haven’t done these things, uh, in assessment and… OFFICER: Two hundred and forty thousand dollars is a lot of money. Especially in cash. Your wife’s declared statement of income in 2008 was, I think, sixteen thousand dollars? How does she suddenly go to two hundred and forty thousand dollars? Your wife doesn’t have that much money. AZHAR: How much m-… OFFICER: Does your wife work? AZHAR: How much we w-…

[79] Page 239:

OFFICER: And you’ve written down here planned layout, installed and repaired wiring. AZHAR: Yes. OFFICER: Installed and repaired wiring. AZHAR: Yeah. OFFICER: You told me today that you never did that. You said you knew how to, but you never did it. AZHAR: Yes. OFFICER: On your resume, you have installed and repaired wiring. Electrical fix-, fixtures, apparatus and control equipment (indicates). AZHAR: Mm-hmm. OFFICER: You’re lying on your resume, much as you lie about everything else. You’ve done nothing but lie since you came in here. AZHAR: Whatever I know, I tell the true story and… OFFICER: Why do you put two hundred and forty thousand dollars in cash in a safety deposit box? You don’t do that unless you’re hiding proceeds of crime. If you stuck two hundred 21:58 and forty thousand dollars in a savings account, you’d be making money. You’re-, a safety deposit box is costing you money to store that amount of cash. AZHAR: If it end the story then, uh, you don’t believe it, so that’s why I will talk about why I put it this in the… OFFICER: Tell me the real story ‘cause you haven’t told it to me yet. AZHAR: Mm-hmm. Then I’ll talk with my lawyer because you don’t-well, you don’t believe me what, what… OFFICER: Well, you haven’t told me anything truthful yet.

[80] Page 258 and 259:

OFFICER: Shahid, sorry. I know I keep getting that wrong. Um, how 22:29 many referrals would he have given your company? AZHAR: Hmm, I don’t remember exactly. Maybe thirty, forty. OFFICER: Thirty or forty referrals? AZHAR: Yeah. OFFICER: Okay. So he sent about thirty or forty patients from his rehab clinic to Work Plus Assessments, right? AZHAR: Yeah. OFFICER: Okay. And is that all in 2010? AZHAR: Yes. OFFICER: Okay. And this is all before September 1st, right? AZHAR: Yeah. OFFICER: Okay. You helped open his clinic. When does he open it? AZHAR: I think in May, June. OFFICER: May or June. Okay, fair enough. All right. Well, I just gotto try and, uh, print off your package and, uh, get it ready 22:30 to take up. Um, there’s a couple fast food places on the way that we’ll stop and get food ‘cause none of us have eaten. Um, you can let us know what you, you want at that time. Uh… AZHAR: So if you don’t mind, can I ask couple of questions? OFFICER: Sure, go ahead. AZHAR: After this long-, my interview, uh, what kind of charge is on me? OFFICER: As mentioned, it’s the, uh, the (inaudible) charge. Receiving benefit as part of a criminal organization, conspiracy to commit fraud, and possession of proceeds of crime. Those are the current ones on the, uh, face of the warrant. AZHAR: Mm. Okay, and the-, when is having bail hearing? OFFICER: Um, you’ll see a JP tomorrow morning, okay? Um, but you’ll likely-, a special bail hearing is gonna be requested. 22:31 Um, we’ve consulted with the Crown attorney, Steve Sheriff. AZHAR: Yeah. OFFICER: And, uh, a special h-, bail hearing is gonna be sought, so you’ll probably be here Saturday. You’ll see the JP Saturday. They might bring you back Monday or Tuesday, and then a special bail hearing date will have to be established, and I don’t know when that’ll be. That’ll be determined by the courts, okay? Based on the availability of, um, the Crown council and your defence attorney as well. Whatever his availability is. I know that they’re supposed to be talking anyway ‘cause, uh, your lawyer had mentioned that, uh, he had already been speaking to Mr. Sheriff, so… AZHAR: Mm-hmm. OFFICER: You guys have obviously been s-, discussing this prior to your return, so your lawyer seems to be well informed anyway. AZHAR: So tomorrow, if there’s a-, because I’m available regardless 22:32 the bail is not bailed, uh, whenever you guys need and wherever. OFFICER: Well… AZHAR: I’m always there and I will be-, whenever, you could just call. I’ll be one call away from you guys. OFFICER: Well, i-, it’s not.

Food and Water

[81] The following references in the video transcript relate to discussions with respect to food and water:

OFFICER: Okay. Um, just be a few minutes, I gotta put, uh, some of the equipment away that I have, so that I don’t have it on me. Um, you want water or anything? I know you had a long flight. AZHAR: No, it’s okay. I’m okay. OFFICER: Okay. Did you have lunch on the plane? AZHAR: Um, not really. 14:55 OFFICER: Okay. When’s the last time you ate? AZHAR: Uh, four hour-, um, I think three, four hours ago. OFFICER: Okay. Well, make sure that we get you, uh, supper or whatever the arrangement is, okay, so you get food there. And, uh, you’re okay for a water for right now? AZHAR: Yeah. If is-, yeah. OFFICER: Did you want some or… AZHAR: No, it’s okay. OFFICER: You’re okay? AZHAR: Thank you. OFFICER: Okay. AZHAR: If any… OFFICER: It’ll just be a few minutes then, okay? AZHAR: No problem. 14:55 Officer leaves the room.

[82] Page 88:

17:28 AZHAR: No, no, ten. Or if you have a fifteen patient, then you have forty-five thousand. So that-, that’s a huge amount of money. OFFICER: Okay. AZHAR: (Inaudible) we… OFFICER: Um… AZHAR: …reinvest in everythings. OFFICER: Okay. AZHAR: Can I have a glass of water, please? OFFICER: You sure can. Absolutely. Yeah, we’ve been talking for a bit. I’ll be right back, okay? 17:29 Officer leaves the room. 17:46 Officer enters the room.

[83] The police returned with a glass of water for the Respondent:

20:26 Knock on door. OFFICER 2: (Speaking from outside the room.) Excuse me, I just have to just change the disc if you wanna come out for a second. OFFICER: Oh, sorry, we just have to-, be one second, okay? Did you want some more water? AZHAR: No, thanks, is okay.

[84] Page 256:

OFFICER: Okay. All right. I think we’re almost done. Um, I’ll be right back, okay? Do you want some water at all? We’ve been both in here. We’re gonna make sure we get you food because I’m starving too. (Laughing.) Um, but you would be getting food anyway. Do you want some more water? AZHAR: Yes, if you-, if I can. OFFICER: Oh, no, absolutely. Okay, don’t hesitate to ask at any time, okay? And I’ll be right back Azhar.

[85] Page 258:

OFFICER: May or June. Okay, fair enough. All right. Well, I just gotta try and uh, print off your package and, uh, get it ready 22:30 to take up. Um, there’s a couple fast food places on the way that we’ll stop and get food’ cause none of us have eaten. Um, you can let us know what you, you want at that time. Uh…

[86] Page 263:

OFFICER: Okay, fair enough. All right. Let me get started on the paperwork so we can get you up to the Division and get you some food as well, okay? AZHAR: Okay. OFFICER: Do you have any special dietary restrictions or anything? AZHAR: Only just Halal food if…. OFFICER: That might be hard to find at this hour. AZHAR: No no, any- anywhere, that’s okay.

[87] Page 275:

OFFICER: Yeah, we’re gonna go up to the division and we’re gonna take you for dinner. I’m taking you out for dinner. We’re gonna stop on a fast food place on the way up to the division.

Sleep/Tired

[88] The following observations are noted by me on my review of the video. The times noted are approximate.

14:55 – the Respondent is leaning on his arms on the table - he looks tired but then sits up with his hands clenched together. 15:01 – he looks tired

• his head is on his arms on the desk
• he sits up and slouches over
• his arms are crossed
• he looks like he is sleeping – his head is slanted to his right shoulders 17:29 – the Respondent gets up from his chair, stands, stretches and yawns. 19:09 – he puts his head on his arms on the table – sits up and is yawning 19:27 – head on his arms on the table
• he looks tired and looks like he is trying to sleep 20:27 – looks very tired
• looks like he is nodding off 20:50 – he looks tired
• yawning 21:17 – he is rubbing his eyes and holding his face
• he looks tried 22:21 – the Respondent is pacing in the room 22:55 – he puts his head down on the table
• it looks like he is sleeping
• when the officer enters the room, he says, “Hey Azhar.” The Respondent gets up and lifts his head 23:19 – he appears to be sleeping with his head on the table
• at 00:09 Officer enters the room and says, “Still here, Azhar?”
• the Respondent then appears to wake up

Nature of Questions/Operating of Mind

[89] At 15:54 on page six, Constable Morash commences the interview by asking general background questions such as name, age, and address.

[90] From page six to page 24, the Respondent is speaking freely and he is doing most of the talking. He is providing to Constable Morash detailed information. This continues and most of the talking is done by the Respondent who is providing the information largely unsolicited by Constable Morash.

[91] The Respondent, up to page 39, continues to provide information to Cst. Morash with few questions being asked by Constable Morash.

[92] The Respondent then responds appropriately to the questions asked by Constable Morash. The conversation is easy and free flowing. The Respondent is in control of the information being provided to Constable Morash.

[93] On page 74 at about 17:13, the Respondent continues to be responsive to questions and provides details to Constable Morash with ease. At one point he acknowledges an error he made in an answer:

AZHAR: And after that he moved to North Street. OFFICER: North Street? AZHAR: Sorry, geo-George Street North. OFFICER: George Street North, okay, yes. AZHAR: Sorry, my apology.

[94] The Respondent continues to answer questions from Constable Morash. Up to page 147 at about 18:59 the Respondent is talking freely and the questions from Constable Morash are not aggressive. At page 157, at about 19:10, the Respondent, for the first time, states he has co-operated enough. Constable Morash tells him he can “sit there and just listen.”

[95] The questioning continues and after this time Constable Morash is now starting to do more of the talking. The Respondent is still very responsive to the questioning. Even up to page 227 at 21:42, the Respondent is still responding appropriately to the questions providing information and detail without difficulty. Following this point in time, Constable Morash’s questions are more pointed and aggressive.

[96] At 21:52, the Respondent tells Constable Morash he has to talk to his lawyer. The questioning continues. On page 239 at 21:58, the Respondent again tells Constable Morash, “Then I’ll talk with my lawyer…” The questioning continues.

[97] At page 242 at about 22:00, the Respondent wants to tell Constable Morash what happened:

AZHAR: But because this is f-, uh, first time I have it. Let me tell you what happen. As I said, uh, I never took any m-, any fund from my account. It always stay there. The Kenny, he said, no, uh, we have to, uh, take it cash in hand, cash in hand. And then he’s the one who took initiative and then… OFFICER: Mm-hmm. AZHAR: …at the last stage when you guys came in and we put it in join. I said I have no problem wherever. I’m okay. If, if you feel that way comfortable, fine. And then the last stage, he separate it. He said no, I, I need my-, in my hand. I said, okay, you can take it your. And that’s the reason we close 22:01 down the Work Plus. Otherwise, I never want to be cash in my hand and all the funds, and that’s the reason I all the time making cheques. I don’t wanna be in cash (inaudible) issues. OFFICER: But why do you take the two hundred and forty thousand from your Work Plus and truck it all the way down to Oakville? AZHAR: Because the Kenny st-, uh, want to be split this cash. He said… OFFICER: But why, why Oakville? That’s inconvenient for you to go all the way down there. AZHAR: Because if, uh-, we found the box there, that’s it. We don’t f-… OFFICER: There was no boxes available in Brampton for you? AZHAR: No. OFFICER: Well, they are hard to find. That’s true. AZHAR: Yeah, it is nowhere. OFFICER: No, you see, see I believe that.

[98] At page 265 at 22:39, the Respondent is still speaking freely and the conversation is free flowing.

[99] At page 258 at about 22:30, the Respondent states the following:

AZHAR: So, if you don’t mind, can I ask couple of questions?

[100] At page 272 at about 23:18, the Respondent is still capable of deciding not to sign a document until he sees his lawyer:

23:18 Twenty-three after. That could be your copy there. I’ll just ask you to sign there and then you can also sign your copy. There isn’t-, you’re not admitting to anything. This isn’t anything that will get you in trouble. AZHAR: (In audible.) OFFICER: You just give a-, you give your copy to your lawyer actually. That would probably be the best suggestion. AZHAR: Can I call f-, uh, can I sign in front of him, or? OFFICER: Uh, no. If you don’t want to sign, you can write-, you can say you don’t want to. I’ll write in declined. It just shows on video anyway that I’m showing it to you so it’s entirely up to you. AZHAR: Okay, I’ll, I’ll sign in front of the lawyer.

[101] On page 273, even after Constable Morash wakes him up, at 00:09, the Respondent continues to speak freely with Constable Morash and is responsive to the questions.

[102] The last portion I wish to refer to is at page 259 at 22:31:

22:31 Um, we’ve consulted with the Crown attorney, Steve Sheriff. AZHAR: Yeah. OFFICER: And, uh, a special h-, bail hearing is gonna be sought, so you’ll probably be here Saturday. You’ll see the JP Saturday. They might bring you back Monday or Tuesday, and then a special bail hearing date will have to be established by the courts, okay? Based on the availability of, um, the Crown council and your defence attorney as well. Whatever his availability is. I know that they’re supposed to be talking anyway ‘cause, uh, your lawyer had mentioned that, uh, he had already been speaking to Mr. Sheriff, so… AZHAR: Mm-hmm. OFFICER: You guys have obviously been s-, discussing this prior to your return, so your lawyer seems to be well informed anyway. AZHAR: So tomorrow, if there’s a-, because I’m available regardless 22:32 the bail is not bailed, uh, whenever you guys need and wherever. OFFICER: Well… AZHAR: I’m always there and I will be-, whenever, you could just call. I’ll be one call away from you guys. OFFICER: Well, i-, it’s not…

The Respondent makes it clear to Cst. Morash that they can call him whenever they need to.

Conclusion re: September 30, 2011 Video Statement

[103] I have considered the testimony of Mr. Hussain and I do not accept a significant portion of his testimony nor does it leave me in reasonable doubt. When I conduct the W.D. analysis with respect to his testimony I am not left in reasonable doubt by his testimony. Let me review some of his testimony given at the voir dire to support this finding.

[104] Mr. Hussain described the lengthy interview as “torture”. The video however, does not support that characterization. Cst. Morash made no threats or promises to Mr. Hussain. There were no inducements offered to him to continue answering questions. Cst. Morash did not engage in any trickery. The conditions of the interview were not oppressive.

[105] Mr. Hussain testified that his call to his lawyer as depicted on the video was very brief and he felt the police were listening on a three way call and they were recording this call with his lawyer. This assertion was not true at all and an Agreed Statement of Fact was prepared and filed with the court confirming that this was not true.

[106] Mr. Hussain testified that he was afraid and scared of the police. The difficulty with that assertion is that at no time did Cst. Morash or Det. McGarry treat him unfairly from the time of his arrest at the Airport to the commencement of the video. His fear emanated from his perceived knowledge of the police in Pakistan not from anything said or done by Cst. Morash and or Det. McGarry. Mr. Hussain’s question to the court, “You know how the police are in Pakistan?” came with no evidentiary support. The court had no information to make any determination on that issue.

[107] Mr. Hussain testified that he was scared of the officers and that is why he answered the questions being asked. The video, however, shows that for a significant portion of the first several hours of the interview he is speaking freely to Cst. Morash providing a lot of detail and information to him.

[108] Mr. Hussain submits that he is extremely afraid yet he continues to be responsive to the questions and once Cst. Morash starts to ask more probing questions Mr. Hussain has the ability to understand that and brings up the discussion about his lawyer.

[109] The reason Mr. Hussain gives for not asking to speak to his lawyer then and there was that he did not know how to make a formal request to do so. I find this response difficult to accept and more difficult to understand.

[110] Mr. Hussain testified that no one told him he would be going to the Division until the very end of the interview yet at page 4 of the video transcript the following is said:

OFFICER: …This will all get packaged into a bag and it’ll go up with you, uh, when you travel up to the Division, okay? There’s no cash in here, is there? AZHAR: Uh, just a few bucks in rupees.

[109] Hussain asserted that he was afraid during this interview however, during the interview he did not merely admit to whatever was being suggested by Cst. Morash. Mr. Hussain was in control of the information he was providing to Cst. Morash. When asked by the Crown in cross-examination to explain how his fear affected his behaviour in the interview Mr. Hussain could not answer the question.

[110] With respect to water again he indicated he did not ask for water because he was scared. The video transcript however, demonstrates the following:

Pg 3 - OFFICER: You want water or anything? OFFICER: You’re ok for a water for right now? AZHAR: No, its okay. Pg 88 - AZHAR Can I have a glass of water? OFFICER: You sure can absolutely. Seventeen minutes later he is brought a glass of water. Pg 188 OFFICER: Do you want some more water? AZHAR: No, thanks, it’s okay. Pg 256 OFFICER: Do you want some more water? AZHAR: Yes, if you and if I can. OFFICER: Okay. Don’t hesitate to ask at any time okay.

[111] Mr. Hussain’s testimony on this point is not supported by the video/transcript.

[112] Mr. Hussain testified that on the way to the washroom Det. McGarry told him that if he kept talking they would let him go. The difficulty with this testimony is that at 22:32 Mr. Hussain asks about when his bail hearing would be. If he was of the view that Det. McGarry would be letting him go why would he be asking when his bail hearing would be held?

[113] Mr. Hussain testified about his fear and how unfairly he had been treated yet near the end of the interview he tells Cst. Morash that he is only a call away if they need to speak to him further.

[114] He also testified that he was afraid to ask questions of the officer yet near the end of the interview without any difficulty he said to Cst. Morash, “Can I ask you a couple of questions?”

[115] The testimony of Mr. Hussain does not leave me in reasonable doubt.

[116] In considering the video statement along with the testimony of Cst. Morash and Det. McGarry I am satisfied beyond a reasonable doubt that the statement is voluntary. I am also satisfied that Mr. Hussain’s right to remain silent was not breached.

[117] In R. v. Oickle (2000) 2000 SCC 38, S.C.J. No 38, Justice Iacobucci set out the following at paras 63 and 64 relating to operating mind:

This Court recently addressed this aspect of the confessions rule in Whittle, supra, and I need not repeat that exercise here. Briefly stated, Sopinka J. explained that the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment” (p. 936). I agree, and would simply add that, like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule. Indeed, in his reasons in Horvath, supra, at p. 408, Spence J. perceived the operating mind doctrine as but one application of the broader principle of voluntariness: statements are inadmissible if they are “not voluntary in the ordinary English sense of the word because they were induced by other circumstances such as existed in the present case”.

Similarly, in concluding that the confessions rule cannot be limited to the negative inquiry of whether there were any explicit threats or promises…

[118] At paras 58 to 62 Justice Iacobacci dealt with the concept of oppression as follows:

There was much debate among the parties, interveners, and courts below over the relevance of “oppression” to the confessions rule. Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession.

A compelling example of oppression comes from the Ontario Court of Appeal’s recent decision in R. v. Hoilett (1999), 136 C.C.C. (3d) 449. The accused, charged with sexual assault, was arrested at 11:25 p.m. while under the influence of crack cocaine and alcohol. After two hours in a cell, two officers removed his clothes for forensic testing. He was left naked in a cold cell containing only a metal bunk to sit on. The bunk was so cold he had to stand up. One and one-half hours later, he was provided with some light clothes, but no underwear and ill-fitting shoes. Shortly thereafter, at about 3:00 a.m., he was awakened for the purpose of interviewing. In the course of the interrogation, the accused nodded off to sleep at least five times. He requested warmer clothes and a tissue to wipe his nose, both of which were refused. While he admitted knowing that he did not have to talk, and that the officers had made no explicit threats or promises, he hoped that if he talked to the police they would give him some warm clothes and cease the interrogation.

Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary. For similar examples of oppressive circumstances, see R. v. Owen (1983), 4 C.C.C. (3d) 538 (N.S.S.C., App. Div.); R. v. Serack, [1974] 2 W.W.R. 377 (B.C.S.C.). Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.

A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions, supra, revealed, this ploy is very dangerous: see Ofshe & Leo (1997a), supra, at pp. 1040-41; Ofshe & Leo (1997), supra, at p. 202. The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement. However, when combined with other factors, it is certainly a relevant consideration in determining on a voir dire whether a confession was voluntary.

England has also recognized the role of oppression. Section 76(8) of the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, states that a confession must not be the product of “oppression”, which is defined to include “torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)”. The Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers goes on to offer examples of what may amount to oppression, which are similar to what I described above.

[119] Finally, at para 69:

The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.’s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process”: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[120] I am satisfied that Mr. Hussain made a meaningful choice to speak to Cst. Morash. Although he expressed, on four occasions, for the police speaking to his lawyer or Mr. Hussain speaking to his lawyer, I am satisfied that once Cst. Morash continued asking questions Mr. Hussain made meaningful choices to continue to answer the questions. He chose to continue to co-operate with Cst. Morash.

[121] The video does not depict an atmosphere of oppression that would point to the absence of an operating mind on the part of Mr. Hussain.

[122] Mr. Hussain was responsive to the questions and his answers were on topic. Even after numerous hours and near the end of the interview he is still able to engage in that conversation asking if he could ask Cst. Morash some questions, asserting his preference to sign a document in the presence of his lawyer and inviting the police to call him if they need any further information. This evidence does not support Mr. Hussain’s characterization of the interview as one of fear and torture. His will to speak to Cst. Morash was not overborne by the circumstances depicted on the video.

[123] I am satisfied in all of these circumstances that the September 30, 2011 statement is admissible.

Fragomeni J. Released: August 19, 2016

COURT FILE NO.: CRIMJ(P) 688/13 DATE: 2016 0819 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – WAYNE ISAACS and AZHAR HUSSAIN RULING RE: VOLUNTARINESS CHARTER APPLICATION Fragomeni J. Released: August 19, 2016