CITATION: R. v. Ader, 2017 ONSC 4584
COURT FILE NO.: 16-30357
DATE: 2017/08/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ALI OMAR ADER
Applicant
Croft Michaelson/Timothy Radcliffe, for the Crown
Trevor Brown/Tyler Botten, for the Applicant
HEARD: April 3-17, 2017
REASONS FOR Decision ON APPLICATION TO EXCLUDE STATEMENTS made to the police
R. Smith J.
[1] The Applicant, Ali Omar Ader, or “Adam or Ader” is charged with unlawfully taking Amanda Lindhout (“Amanda”) hostage with the intention of inducing a ransom to be paid as a condition of her release, contrary to section 279.1(2) of the Criminal Law Code of Canada.
[2] This charge arose out of an investigation known as “Project Slype”, a law enforcement effort involving the Royal Canadian Mounted Police (“RCMP”) which began in June of 2010. As part of Project Slype, the RCMP conducted an undercover operation aimed at identifying and eventually arresting the persons responsible for kidnapping Amanda. This operation culminated five years later in the Applicant’s arrest shortly after he arrived in Canada.
[3] In January of 2010, about three months after Amanda was released, the Applicant called Amanda’s mother to speak with Amanda and left a phone number. In June 2010, an undercover police officer was able to re-establish contact with him. Upon learning that Ader was planning to write a book about Somalia, the undercover officer told Ader that he had connections in the publishing industry who might be interested in publishing his book.
[4] Over the ensuing months and years, numerous telephone calls, text messages, and emails were exchanged between them. Ader provided the undercover officer with outlines and manuscripts of his book as it progressed. This led to a meeting between the undercover officer and Ader in Mauritius in May 2013, during which Ader made a number of admissions to the undercover officer confirming his involvement in the hostage taking of Amanda.
[5] Eventually, Ader was invited to Ottawa to meet the “publisher” who wanted to publish his book. When the accused arrived in Ottawa in June 2015, he met with two undercover police officers and discussed the publishing contract; in the course of his meetings on June 10 and 11, 2015, he made admissions about his role in the hostage taking.
[6] Ader was arrested when he left the meeting on June 11, and was cautioned and given his rights to counsel, in both English and the Somali language. He met with counsel of his choice. He was then interviewed by the police and provided a recorded statement.
[7] The Applicant has brought an application to exclude the statements made to the undercover officers posing as a book agent in Mauritius and after his arrest in Ottawa on the following grounds:
a) that Project Slype was a “Mr. Big” operation which was an abuse of process which caused the Applicant to confess to his involvement in Amanda’s hostage taking;
b) that his confession was obtained in a manner breached by his s. 7 Charter right to silence; and
c) The Applicant’s post arrest statement should be excluded because it breached his section 11(b) right to counsel because he was unable to speak to a Somali speaking lawyer before he gave his post arrest statement.
[8] The Crown disputes that this was a “Mr. Big” operation because the Applicant was never recruited into a fictitious criminal organization, he was never required to commit any fake criminal acts, and there was never any threat or possibility of violence, which are hallmarks of a Mr. Big operation.
Factual Background
[9] The Crown substantially accepts the background facts as set out by the Applicant in his factum, and as a result, I will largely adopt these undisputed facts.
[10] In August 2008, Amanda Lindhout (“Amanda”), a Canadian citizen, and Nigel Brennan (“Nigel”), an Australian, travelled to Somalia. Amanda and Nigel were freelance journalists who intended to report on displaced persons camps near Mogadishu.
[11] On August 23, 2008, Amanda and Nigel were taken hostage at gunpoint by an unidentified group of militants while traveling to the Hawa Abdi refugee camp.
[12] On August 24, 2008, John Lindhout (Amanda’s father) received a voice message on his telephone answering machine at his residence in Alberta. The message stated, “My name is Adam. I am from Mogadishu. Amanda is in our hands…we want from you one and a half million dollars. Goodbye.” The caller left a phone number. The Brennan family in Australia received a similar voicemail about their son shortly thereafter.
[13] “Adam” was also referred to throughout the investigation and this Application as “Adan” or “Osman”, and is alleged to be one and the same as the Applicant, Ali Omar Ader.
[14] At the time of the kidnapping, Somalia was in a state of civil and political unrest due to the continued presence of armed militias, including Al-Shabaab, and the Transitional Federal Government’s (TFG) limited control over only small segments of the country. There was no official Government representation by any Western country in Somalia. As a result, all Canadian political and consular support for Somalia was effected out of the Canadian High Commission in Nairobi, Kenya.
[15] The RCMP, through Lorinda Stewart (Amanda’s mother and spokesperson for the Lindhout family) began a negotiation process with “Adam”, who is alleged to have identified himself as the sole spokesperson and a commander representing the group holding Amanda and Nigel. With support and direction from RCMP handlers, Stewart conducted release negotiations with “Adam”. Her communications were intercepted by the RCMP under the emergency wiretap provisions of the Criminal Code and through a series of Part VI Criminal Code “One Party Consent” authorizations granted pursuant s. 184.2 and 184.3 of the Code.
[16] Throughout their captivity, “Adam” is alleged to have repeatedly communicated that they would not be released from custody until the demands for ransom payment were met. Following her release, Amanda was interviewed and provided details about her captors, including “Adam.” Amanda said she saw “Adam” four times in the first three months of her captivity, and after that only heard him on the telephone.
[17] “Adam” is alleged to have uttered several threats, stating that the hostages would be harmed or killed unless the ransom was paid. “Adam” further stated that the members of the group holding Amanda and Nigel were friends of his, that the members were poorly educated and that they were extremely dangerous.
[18] “Adam” reiterated on several occasions that he was the individual the families needed to deal with in order to have Amanda and Nigel released from custody. “Adam” was steadfast in demanding a ransom which fluctuated between $1.5 million USD and $5 million USD.
[19] In July of 2009, after 11 months in custody, the Lindhout and Brennan families hired a private company, Andrew Kain Enterprises (AKE), to negotiate with the hostage takers. AKE is a private contractor based out of London, UK. One of the services provided by AKE is the negotiation of hostage and ransom situations up to and including the release of hostages and the transfer of money.
[20] On November 14, 2009, AKE representatives traveled to Mogadishu and effectively negotiated the ransom payment with the hostage takers. As a result of these negotiations, Amanda and Nigel were released in Somalia on November 25, 2009.
[21] Following the release of Amanda and Nigel, the RCMP remained in contact with the Lindhout family. Amanda provided detailed statements outlining the events leading up to the hostage taking and details of the period during which she was held in captivity. Amanda described incidents of repeated physical and sexual assaults suffered by her at the hands of her captors as well as physical assaults suffered by Nigel.
[22] In addition, Amanda indicated that “Adam” and an individual known to her by the name “Ahmed” were in charge of the group and had introduced themselves as “commanders”. Amanda would later explain that “Adam” was not a “commander” as he had introduced himself, but rather part of the hierarchy of the group.
[23] Amanda also told the RCMP that, prior to her release from captivity, “Ahmed” forced her to sign a contract which stated, among other things, that she would send a sum of money to him “where ever he is in the world.” “Ahmed” provided Amanda with an email address she could use to initiate contact.
[24] The Applicant has acknowledged in paragraph 56 of his factum filed on his Garofoli application that he is the person who was communicating with Amanda’s mother to negotiate the ransom demand.
[25] In January 2010, Adam attempted to telephone Amanda’s mother, and on one occasion left a telephone message. The police used this as an opportunity to try to determine the identities of the hostage-takers. Accordingly, in June 2010, an undercover officer (referred to as “A.K.”) re-established contact with Adam. The undercover officer told Adam that he was working on behalf of Amanda and her mother, and he wanted to know why he had been trying to contact the family. Adam told the undercover officer that he had some letters that had been written by Amanda, which he was prepared to sell to her.
[26] An undercover operation was initiated with the goal of identifying “Adam” and possibly other individuals involved in the kidnapping of Amanda and Nigel. Investigators believed that “Adam” was an active conspirator and the main communicator/negotiator for the hostage taker group who held Amanda and Nigel. Based on the evidence gathered through the operation, investigators believe “Adam’s” true name to be Ali Omar Ader.
[27] The police did not know what Adam was referring to when he made the reference to the “letters”. When Adam subsequently sent scanned samples of the letters to the undercover officer, the police learned what Ader had been referring to – the “letters” were handwritten documents written by Amanda while she had been held hostage.
[28] Over the next few months, Adam and the undercover officer continued to communicate about the letters, Adam’s involvement in the hostage-taking (which he had acknowledged from the very beginning of his interaction with the undercover officer), and his book. On November 6, 2010, Adam sent the undercover officer an email containing 16 pages written by Amanda while she was in captivity. On December 9, 2010, the undercover officer sent Adam an email stating that there was a lot of money to be made publishing a book. Two days later, Adam sent the undercover officer an email revealing his real name. Adam also sent the undercover officer copies of his passport and university degree.
[29] On December 12, 2010, Ader sent the undercover officer a copy of the Table of Contents for his book. The topics related to Somalian history and the involvement of Ethiopia in Somalia; none of the topics related to Amanda or the hostage-taking.
[30] Over the ensuing months and years, Ader worked on his book and sent the undercover officer copies of outlines and chapters of his book-in-progress. This ultimately led to the undercover officer proposing that they meet face-to-face somewhere to discuss the book proposal.
[31] On May 3, 2013, the undercover officer told Ader that he was going to be in India on business, and suggested that they meet in Mauritius. The undercover officer told Ader that he would pay for the flight and hotel and Ader would sign a contract hiring the undercover officer as his business agent. Ader was receptive to the proposal and agreed to meet.
[32] The RCMP arranged for Ader’s flight from Somalia to Mauritius, and made arrangements with authorities in Mauritius to ensure that he would be permitted entry into the country.
[33] A.K. traveled to Mauritius in June 2013, where he met with the Applicant in a hotel room monitored and recorded by RCMP investigators. At this meeting, the Applicant divulged details of his role in the kidnapping, and confirmed a number of “hold-back” details that would have only been known to those directly involved with the group in some way. He also advised that he was the person who recorded a video of the hostages later broadcast by Al Jazeera, and that he eventually received $10,000 USD from the kidnappers for his assistance. At the conclusion of the meeting, the Applicant received a $500 USD signing bonus and signed a contract with A.K. to act as his worldwide agent with respect to the publication of his book titled “A Slow Genocide.”
[34] After the meetings in Mauritius, Ader continued to work on his book and remained in contact with the undercover officer. Ader was eventually invited to come to Canada to meet the “publisher” who was interested in publishing his book. Again, he was told that all of his expenses would be paid.
[35] On June 10, 2015, Ader met with the undercover officer in Ottawa. The meeting was recorded. The following day, June 11, 2015, he met with A.K. and another undercover officer who was posing as the “publisher.” This meeting was also recorded. The undercover officers reviewed a publishing “contract” with Ader for his book, “The Slow Genocide”. One of the terms of the “contract” provided that Ader agreed to fully disclose any incidents or facts that “could create negative publicity with this project or injure the reputation of the Publisher.” Ader was asked to disclose his involvement in the “Amanda incident”, so the publisher would be able to protect both Ader and the publishing company from any adverse publicity.
[36] Ader then largely repeated what he had told the first undercover officer when they had met in Mauritius: he admitted that he had been the negotiator for the hostage-takers, that he had directed a proof-of-life video and delivered it to Al Jazeera, and that he had been paid $10,000 USD for his work.
[37] The Applicant signed the publishing agreement and departed the meeting. He was arrested in the hallway outside the meeting room by Cst. Olivier Caron of the RCMP, who conveyed the Applicant to his waiting cruiser outside. An audio recording was made of the entirety of Cst. Caron’s dealings with the Applicant, from his initial arrest through to his eventual lodging in a cell at RCMP Headquarters in Ottawa.
[38] Cst. Mahamud Elmi of the Ottawa Police Service, who speaks Somali, was also present during the arrest. Both officers and the Applicant sat in Cst. Caron’s cruiser while the Applicant was read his rights and cautions, first in English by Cst. Caron and then in the Somali language by Cst. Elmi. This was also captured by the audio recording.
[39] Ader was given his right to counsel in both English and Somali, and was cautioned in both languages. On arrival at the police station, he spoke to counsel of his choice, first by telephone and then his lawyer attended the police station and met with the Applicant in person. When his counsel was asked by the police whether “language-of-life” (interpreter) services were required, Mr. Ader’s counsel advised the officer that they were not.
[40] Following his meeting with counsel, the Applicant was interviewed by Sgt. Andy Ing and provided the statement that is one of the subjects of this Application. During the statement, the Applicant made a number of inculpatory statements regarding his involvement in Amanda’s kidnapping and eventual release. At Sgt. Ing’s request, the Applicant wrote an apology letter to Amanda. He also expressed a concern for his friend A.K. who had been arrested with him at the hotel, and a concern that the signing bonus for “A Slow Genocide” would be conveyed to his wife and children in Somalia.
Issues
[41] The following issues must be decided:
Was Project Slype a “Mr. Big” operation?
Does the prejudicial effect of the Applicant’s statement to undercover officers outweigh its probative value; or did the manner in which it was obtained amount to an abuse of process?
Should the Applicant’s pre-arrest statements be excluded because they were not voluntary and breached his s. 7 Charter right to silence?
Should the Applicant’s post-arrest statement be excluded because they were not voluntary and breached his s. 7 Charter right to silence?
Should the Applicant’s post-arrest statement be excluded on the basis that his s. 10(b) Charter rights to counsel were breached because a Somali interpreter was not provided when he phoned and met with his lawyer?
Analysis
Issue #1 – Was Project Slype a “Mr. Big” Operation?
[42] In R. v. Hart, 2014 SCC 52, 2 S.C.R. 544, the Supreme Court of Canada established a new framework for dealing with the admissibility of confessions obtained by means of an undercover operation referred to the RCMP as “Major Crime Homicide Technique” and referred to more colloquially in jurisprudence as “Mr. Big” Operation. In the Hart decision, the Supreme Court of Canada was concerned with the reliability of confessions obtained during interrogations in the face of powerful inducements and sometimes veiled threats.”
[43] In paras. 10 and 11 of the Hart decision, Justice Moldaver set out a two-pronged approach governing the admissibility of Mr. Big confessions:
I would propose that where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can establish, on balance, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value is a function of its reliability. Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant.
Trial judges must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred. No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target of a Mr. Big operation into confessing. Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings.
[44] In R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at para. 1, Justice Rosenburg explained the technique used in “Mr. Big” operations as follows:
The police resort to this technique when they have a suspect in a serious crime, usually murder, but they have been unable to obtain sufficient evidence against the suspect. While there are some variations, in general, in the Mr. Big scenario police officers posing as organized crime figures offer the suspect the opportunity to join their organization. The cost of entry to the organization is that the suspect demonstrates that he can be trusted and is capable of carrying out the kind of criminal acts required by the organization. The suspect is persuaded by inducements and other means to admit to a serious crime to demonstrate his trust in the organization and that he can be counted on to carry out the criminal orders of Mr. Big.
[45] In the Hart decision, the Supreme Court set out the core components of the technique as follows:
A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization of their own making. Over the next several weeks or months, the suspect is befriended by the undercover officers. He is shown that working with the organization provides a pathway to financial rewards and close friendships. There is only one catch. The crime boss — known colloquially as “Mr. Big” — must approve the suspect’s membership in the criminal organization.
The operation culminates with an interview-like meeting between the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it. Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize — acceptance into the organization — awaits. If the suspect does confess, the fiction soon unravels and the suspect is arrested and charged.
[46] In para. 81 of the Hart decision, the Supreme Court identified concerns about reliability, prejudice and the potential for police misconduct. The suspect has an incentive to confess whether the confession is true or false. There is also a concern with the admissibility of prejudicial facts about the accused character in “Mr. Big” Operations. The evidence will usually disclose that the accused person was willing to commit criminal acts and wanted to join a criminal organization. The prejudicial effect of such evidence is a substantial concern. There is also a risk that the police may go too far and use unacceptable tactics in the course of a “Mr. Big” Operation. “Mr. Big” Operations often involve threats and staged acts of violence in order to show the criminal nature of the organization and emphasize the value of loyalty and trust. At para. 85 of the Hart decision the Court stated that there is always a risk that the police might go too far and coerce a confession from the suspect.
[47] The first prong of the approach set out by the Supreme Court of Canada in Hart involves the recruiting of an accused into a fictitious criminal organization of its own making to elicit a confession. The Court must consider whether the probative value of the confession outweighs it prejudicial effect considering the factors that are identified in the Hart decision. The second prong of the Hart decision is for the Court to determine if an abuse of process has occurred.
[48] The Applicant submits that the core components of the “Mr. Big” technique are present in the circumstances before me because the undercover officer A.K. spent years cultivating a friendship with the Applicant and provided an incentive to the accused by posing as a literary agent who could connect the Applicant with a publisher for a book he was writing about Somalia. The incentive offered to the Applicant was a significant income upon the publication of his book, with gross sales of up to one million dollars if sales were good enough, and a $10,000 signing bonus with the publisher, and he was required to give full disclosure of his involvement in Amanda’s hostage taking in order to obtain a book publishing contract.
[49] The undercover officer cultivated a friendship with the Applicant over several years and offered an inducement that he would assist the Applicant to publish his book from which he could possibly have gross sales of one million dollars, if he traveled to Canada and made full disclosure of his involvement in Amanda’s hostage taking.
[50] However, the following are substantial differences from the R. v. Hart, “Mr. Big” situation:
(a) A major difference is that A.K. did not create a fictitious criminal organization for the Applicant to join, which could provide him with financial security, social acceptance and friendship. In this case, there was no criminal organization to which the Applicant could belong. A.K. did offer his friendship and if his book was successful, the Applicant would have become financially secure;
(b) There were no threats or any mention of any violent acts. Violence played no part in the plan to lure the Applicant to Canada. There was also no mention of a past history of violence that was a boast-worthy accomplishment;
(c) The Applicant was not required to confess to a leader of the criminal organization in order to become a member. In this situation, the proposed book contract required him to make full disclosure of his involvement in Amanda’s hostage taking to avoid bad publicity for the publisher of his book;
(d) The Applicant was not required to commit fake criminal acts in order to join a criminal organization and as a result there is no concern with prejudice from the introduction of bad character evidence at trial. In fact, the Applicant was engaged in a worthy project of writing a book on the history of Somalia, which he was pursuing on his own and for which he was offered a financial incentive if he traveled to Canada;
(e) The police did not threaten or coerce the Applicant in any way to obtain a confession;
(f) The Applicant did not present any evidence of vulnerabilities as he was a teacher and had a Bachelor of Arts degree, he was not youthful, there is no evidence of any mental health issues or any addiction issues. There was only evidence that he lived in a dangerous war torn country and lived in poverty and the police offered an inducement of a substantial financial benefit if his book sold well.
[51] In this situation, the Applicant was not induced into providing a confession, whether it was factually true or not is not, which was the situation in Hart. The undercover officers did not provide the Applicant with any inducement to provide a false confession rather they requested him to disclose his role in the hostage taking of Amanda in order to protect the publisher from adverse publicity after publishing of his book. There is also no risk of bad character evidence being introduced at trial as there was no requirement to commit fake criminal acts, no criminal organization to join, and no coercion by the police.
[52] The Applicant did not have any incentive to exaggerate his involvement in the hostage taking in order to impress the “publisher” which would be present in a “Mr. Big” Operation which leads to the unreliability of such confessions.
[53] When the Applicant first met with A.K. in Mauritius, he raised the hostage taking and his involvement in it, and subsequently A.K. asked him to provide details of his involvement to address any adverse media scrutiny.
[54] The same situation occurred when the undercover officer, A.K., met with the Applicant in Ottawa. No inducement was offered to the Applicant to make a confession or an incentive to exaggerate his role in the hostage taking. The “book deal” was not conditional on his confessing to his involvement in the hostage taking of Amanda. There was no benefit to the Applicant to make a false confession. It would have been in his best interests to minimize rather than exaggerate his role in the hostage taking. There was no requirement for him to enhance his level of involvement or the actions he took in the hostage taking.
[55] The Applicant was tricked into detailing the extent of his involvement in the hostage taking and tricked into coming to Canada to meet a fictitious publisher with the inducement that he would be able to publish this book, receive a bonus of $10,000 on signing a contract with the publisher and possibly generate income of up to one million in gross sales if his book sold well. The police conduct of setting up a false scenario where the accused would meet a publisher in order to sign a lucrative book contract does not amount to abuse of conduct by police.
Disposition of Issue #1
[56] Notwithstanding that several of the most concerning aspects of a “Mr. Big” Operation are absent, I find that cultivating a friendship with the Applicant over many years and luring him to come to Canada with the prospect of signing a lucrative book contract is not a “Mr. Big” Operation as in Hart, but a variant of a “Mr. Big” Operation.
Issue #2 - Does the prejudicial effect of the Applicant’s statement to undercover officers outweigh its probative value or did the manner in which it was obtained amount to an abuse of process?
Prejudicial Effect and Probative Value
[57] Based on the differences from a full “Mr. Big” Operation outlined above, I find that the probative value of the accused’s confession to the police outweighs any prejudicial effect. There was no risk of his confession of being the negotiator for the hostage takers being unreliable, no incentive was given to the accused to enhance or exaggerate his role in the hostage taking, no violence was involved, the accused was not invited to join in a fictitious criminal organization and the accused was not involved in any committing staged criminal acts.
[58] Also, I find the police did not engage in any abusive conduct that overcame the will of the accused, nor did they coerce him into confessing.
[59] There is no prejudice that arises from eliciting bad character evidence as the operation did not involve the Applicant committing any illegal acts seeking to join a criminal organization. The probative value of his admissions to police undercover officers, where he made similar admissions to the undercover officer in Mauritius, and the details of his confession are confirmed by other evidence such as the address when he was communicating with Amanda’s mother by email outweighs any possible moral or reasoning prejudice.
Abuse of Process
[60] In the United States of America v. Cavan, 2015 ONCA 664, 127 O.R. (3d) 430, at para. 51, the Court of Appeal stated that there are only two categories of abuse of process; the main category captures state conduct that affects the fairness of the trial and a smaller residual category encompasses conduct that contravenes fundamental notions of justice and undermines the integrity of the judicial process. In this case, no concerns about trial fairness have been raised; rather the Applicant submits that the conduct complained of is so offensive to society’s notion of fair play and decency that proceeding with the trial in the face of the police conduct would harm the integrity of the justice system.
[61] Something more than the presence of an inducement is required to give rise to an abuse of process. The typical “Mr. Big” Operation does not amount to such an abuse of process, rather conduct that approximates coercion and overcomes the will of the accused to coerce a confession or conduct that preys on a particular vulnerability of an accused such as mental health problems, substance addictions or youthfulness are required. In this case the Applicant had a Bachelor of Arts degree, was middle aged and without any evidence of mental health or addiction issues.
[62] I find that reasonable members of the public would not find the undercover operation shocking or unacceptable as the police conduct did nothing to overcome the will of the accused and he was not coerced into confessing his involvement in the hostage taking. I agree with the Crown’s submission that the relationship between the accused and the undercover officer was one of friendship and a business relationship. Informed members of the public would accept what occurred here as skilful police work in bringing an alleged perpetrator of a serious crime to justice. Not allowing this evidence to be introduced would bring the administration of justice into disrepute.
Disposition of Issue #2
[63] For the above reasons I find that the probative value of the evidence obtained exceeds any prejudice to the Applicant which is minimal, and also that the police conduct involved did not amount to an abuse of process.
Issue #3 - Should the Applicant’s pre-arrest statements be excluded on the basis that they were not voluntary and breached his Section 7 Charter Right to silence?
[64] In Hill, Tanovich, Strezos, McWilliams’ Canadian Criminal Evidence (WestlawNext Canada); sections 15:40.10.20, the authors state that statements made to undercover officers outside of detention do not trigger the right to silence guaranteed under s. 7 of the Charter.
[65] In R. v. Hebert 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, the Supreme Court of Canada held that the accused’s right to silence under s. 7 of the Charter only applies during detention. McLachlin, J as she then was stated that the purpose of the s. 7 right to silence was to protect detained individuals against the superior power of the state. At para. 120, she stated:
In a broad sense, the purpose of s. 7 is twofold: To preserve the rights of the detained individual, and to maintain the repute and integrity of our system of justice. Particularly, it is to control the superior power of the state vis à vis the individual who has been detained by the state and thus placed in its power.
[66] At para. 131 of Hebert, McLachlin, J. went on to state that the s. 7 right to silence “did not arise before detention; … it applied only after detention.” Undercover operations prior to detention did not raise the same considerations. The jurisprudence, relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor, does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different.
[67] In R. v. Singh, 2007 SCC 48, 3 S.C.R. 405, Charron J. reaffirmed that, “the residual protection afforded to the right silence under s. 7 of the Charter is only triggered upon detention”. In the Hart decision, Justice Moldaver recognized that the right to silence was not engaged in the context of “Mr. Big” Operations at paragraph 64 where he stated, “Attempts to extend existing legal protections to “Mr. Big” Operations have failed. This Court has held that “Mr. Big” Operations do not engage the right to silence because the accused is not detained by the police at the time that he or she confesses. See: R. v. McIntyre, 1994 CanLII 95 (SCC), [1994] 2 S.C.R. 480; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151. In R. v. Grandinetti, 2005 SCC 5, 1 S.C.R. 27, the Supreme Court stated that the Confessions rule which requires the Crown to prove an accused’s statement to a person in authority is “voluntary” is inoperative because the accused does not know that Mr. Big is a police officer when he confesses.
Disposition of Issue #3
[68] In this case, the Applicant was never detained until he was arrested, and as a result, I find his s. 7 rights were never engaged, or breached. As a result, the confessions rule requiring the Crown to prove the accused’s statement to a person in authority was voluntary was also not engaged because the accused did not know that the undercover agent was a person in authority.
Issue #4 - Should the Applicant’s post-arrest statements be excluded because they were not voluntary and breached his s. 7 Charter right to silence?
[69] In the R. v. Oickle, 2000 SCC 38, 2 S.C.R. 3, the Supreme Court articulated a contextual principled approach to assessing voluntariness of statements to the police. The first step of the analysis is to examine a number of factors including inducements such as promises or threats; whether the conduct of the police created an atmosphere of oppression; and the existence of an operating mind. The legal test is whether the will of the subject has been overborn.
[70] The onus is on the Crown to show beyond a reasonable doubt that the statements made to a person in authority were voluntary.
[71] In the circumstances, I am satisfied that the will of the Applicant has not been overborn. The Applicant was read his s. 10(b) rights in Somali as well as in English, from listening to the transcripts the accused understood English and the accused had an opportunity to speak with an experienced legal counsel prior to making any statement to the police. His counsel did not observe any indicia of a lack of comprehension of English by the Applicant. The police officers did not threaten the Applicant in any way and no inducements were offered to the accused to make a statement. The police did not subject the accused to any intolerable conditions and the atmosphere was not oppressive during the time the statement was made and the police questioning of the Applicant was not hostile, aggressive, or intimidating. There was no evidence of any vulnerability on the part of the Applicant.
Disposition of Issue #4
[72] Considering all of the circumstances, I find that the Crown has satisfied me beyond a reasonable doubt that the Applicant’s post-arrest statement to the police was voluntary as the police did not override his will, and as a result, did not breach his s. 7 rights for the reasons given above.
Issue #5 – Should the Applicant’s post-arrest statement be excluded on the basis that his section 10(b) Charter right to counsel was breached because a Somali interpreter was not provided when he phoned and met with his lawyer?
[73] In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at para. 19, the Supreme Court stated that the burden imposed on police by section 10(b) of the Charter does not require them to assure themselves that a detainee fully understands the section 10(b) caution unless “special circumstances exist that indicate the detainee’s lack of understanding. The detainee must be informed, which means that he must understand what the officer is saying.”
[74] In this case, the RCMP was aware when the Applicant was arrested that English was not his first language. The entirety of the arrest was audio recorded and a Somali speaking officer from the Ottawa Police Service was on hand to read a Somali translation of his right to silence and the caution from a script prepared in advance.
[75] The Applicant seeks to exclude the Applicant’s statement to Detective Ing because Constable Caron did not advise him of the availability of the “Languages of Life” service, which provides interpretation services for detainees in Ottawa before he spoke and met with his lawyer. An interpreter was not offered to the Applicant for his phone call with his lawyer. The Applicant submits that there were sufficient indicia of a lack of comprehension present in his responses to Sergeant Ing’s questions to require some inquiry into whether his statement was given with a full understanding of his s. 10(b) rights.
[76] I find that the accused s. 10(b) right to counsel was not breached by the police in the circumstances for the following reasons:
(a) The Applicant was advised of his right to counsel under section 10(b) and he was cautioned in both English and the Somali language when he was first arrested;
(b) When he arrived at the police station and before he was questioned by Sgt. Ing, he was provided with an opportunity to speak with counsel of his choice by telephone. The Applicant was able to reach an experienced criminal lawyer, Mr. Adam who attended at the police station and met with the accused for approximately 30 minutes before he made a statement;
(c) The Applicant’s counsel was specifically asked by the police officer whether the accused needed, “Language of Life interpretation services”, for his interview and his counsel advised the police that interpretation services were not required; and
(d) Based on the video recorded statement, the Applicant appeared to have a reasonable understanding of the questions posed and he responded appropriately in English.
[77] The onus is on the Applicant to establish a breach of his Charter rights, and he has not presented any evidence that he was not able to understand the legal advice given to him by his lawyer in the English language. The only reasonable inference to be drawn from these circumstances is that the Applicant’s counsel was satisfied that the Applicant was able to understand the legal advice that he provided in English and that there were no special circumstances indicating a lack of understanding. In the absence of any evidence to the contrary, I infer that the advice provided by his counsel was both adequate and understood by the Applicant.
Disposition of Issue #5
[78] As a result the Applicant has not met his onus to establish a breach of his s. 10(b) Charter rights by not receiving an offer of translation services when he met with his lawyer to obtain legal advice.
Justice Robert Smith
Released: August 11, 2017
CITATION: R. v. Ader, 2017 ONSC 4584
COURT FILE NO.: 16-30357
DATE: 2017/08/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ALI OMAR ADER
Applicant
Reasons for Decision on application to exclude statements made to the police
R. Smith J.
Released: August 11, 2017