CITATION: R v. Sharifpouran, 2017 ONSC 4804

COURT FILE NO.: CR-16-1810-00

DATE: 2017 08 09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

S. Graham, Crown Counsel

• and -

GHOLAMREZA SHARIFPOURAN

B. Pearson, Counsel for the Accused

HEARD: August 1, 2, and 3, 2017

Voir Dire Ruling Re: Admissibility

[1] On March 12, 2015, RCMP Constables Panzer, Chaudhary and Van Alstine knocked at Mr. Sharifpouran’s door. They were admitted into the home. Twenty minutes later Mr. Sharifpouran was under arrest, charged with importing 3 kilograms of opium into Canada and taken into RCMP custody.

[2] At issue in this pre-trial voir dire is the admissibility of statements Mr. Sharifpouran made to police at his home, and later that day in his video recorded statement taken at the RCMP’s detachment at Pearson Airport.

Applications:

[3] The Crown brought an application for a declaration that Mr. Sharifpouran’s two statements were made voluntarily and are admissible. Mr. Sharifpouran brings an application to exclude both statements on the basis that his section 10(b) Charter right to counsel was violated.

The Statements:

1. At the home

[4] On March 11, 2015, the RCMP received information that Mr. Sharifpouran’s shipment of dried fruits and juices imported from Iran contained 3 kilograms of opium. On March 12 RCMP Constables Panzer, Chaudhary and Van Alstine went to Mr. Sharifpouran’s residence. There are some discrepancies over what transpired at the home. For reasons outlined later, I prefer the evidence of Constable Van Alstine sign to that of Constable Choudhary or Ali Sharifpouran.

[5] According to Constable Van Alstine, the three RCMP officers arrived at the Sharifpouran residence at approximately 2:30. They were at the residence for between 15 to 20 minutes. The officers knocked on the front door. Either Mrs. or Mr. Sharifpouran opened the door. Mrs. Sharifpouran was home. They were joined by Ali Sharifpouran, their son, who was upstairs sleeping until he was called downstairs by Mrs. Sharifpouran. The younger Mr. Sharifpouran interpreted for the Constables.

[6] Van Alstine recalled that he introduced himself and the other officers to Mr. Sharifpouran as RCMP Constables. In addition, they were wearing vests and jackets which had the word “police” on them. Mr. Sharifpouran identified himself and produced his driver’s license as proof of identity. The three constables and Mr. Sharifpouran and his son Ali sat down at the dining room table. It became clear during the introductions and discussion about Mr. Sharifpouran’s identity that Mr. Sharifpouran’s English was not good. Accordingly, Ali Sharifpouran was asked to translate.

[7] Constable Van Alstine said that he began the conversation by saying that Mr. Sharifpouran was under arrest for importing drugs, namely opium. Van Alstine then began to issue the caution. As he was doing so, Mr. Sharifpouran, through his son, said that he imported the opium for his heart, and in Iran it is not illegal as it is good for one’s health. He said that he had two heart surgeries. Van Alstine, during the statement, raised both of his hands with open palms towards Mr. Sharifpouran as an indication to stop talking until Van Alstine could complete his caution and dive Mr. Sharifpouran his charter s. 10 (b) rights.

[8] When Constable Van Alstine completed the caution and reading Mr. Sharifpouran his 10(b) right to counsel, he asked Mr. Sharifpouran if he understood the offense. He said yes. He asked if Mr. Sharifpouran understood the caution and his rights to a lawyer. He said he understood the caution and, with respect to his right to a lawyer he said “For sure”. Once Mr Sharifpouran said that, the discussion ended. An officer took him upstairs so that he could gather clothing. The RCMP also collected Mr. Sharifpouran’s medication for his various health conditions. According to Constable van Alstine they left the home at 2:38 arriving at the RCMP detachment’s cells at Pearson Airport at 2:58. Mr. Sharifpouran was turned over to the RCMP officers coming on shift. Van Alstine told Constable Michiel that Mr. Sharifpouran had been arrested for importing opium, had asked to exercise his right to counsel, and needed a Farsi speaking lawyer.

2. At the cells

[9] RCMP Constable Michiel testified that she offered Mr. Sharifpouran supper. He declined. She advised him that she was going to arrange for him to speak to a lawyer. She selected from the legal aid duty counsel roster a Farsi speaking lawyer and arranged the telephone call for Mr. Sharifpouran. She advised the lawyer that Mr. Sharifpouran was under arrest for importing opium into Canada, and that he needed the services of a Farsi speaking lawyer. The call was placed on hold, Mr. Sharifpouran was taken to the phone room and left alone, and the call put was put through. Officer Michiel went on the line and told the lawyer and Mr. Sharifpouran that the call was connected. She then hung up. When Mr. Sharifpouran was done speaking to the lawyer the call was disconnected and Mr. Sharifpouran was taken back to his cells.

[10] At approximately 6:40 PM, Constable Tcheshmejoui, a Farsi speaking RCMP officer who had been enlisted to conduct an interview with Mr. Sharifpouran in Farsi since had spoken to a lawyer, retrieved Mr. Sharifpouran from the cells. They crossed the 10 steps to the interview room. The interview lasted approximately an hour and 20 minutes, including a 20 minute break. The interview was conducted for dominantly in Farsi. Constable Tcheshmejoui produced his own translation of the interview. The recording was also sent out and was translated by a Farsi speaking accredited interpreter, accredited with the Ministry of the Atty. Gen.

[11] When Constable Tcheshmejoui went into the cells to retrieve Mr. Sharifpouran, he introduced himself. He began the interview by advising Mr. Sharifpouran that he would be speaking to Mr. Sharifpouran in Farsi and invited Mr. Sharifpouran to advise him if Mr. Sharifpouran didn’t understand something. Mr. Sharifpouran said “okay, no problem.” Constable Tcheshmejoui began to caution Mr. Sharifpouran and advise him of bison of his s.10(b) right to counsels. The following discussion occurred:

AT: Just uh[^1], let me tell you that this room isaudio video recorded I will be speaking to you in Farsi. Whatever you don’t understand let me know. Meaning there is a camera. The camera will record everything.

GS: Ok, no problem.

AT: To tell you a few things; if you have discussed to any other police officer today? I want to be sure that your rights have been read den with lawyer which is lawyer you've exercised your right. I will read it to the best I can in Farsi for you to understand*, and I will say that today the RCMP arrested you for* importation of opium, importation of opium*, meaning importing a controlled substance into Canada.

GS :(Hums Hums) importing controlled substances.

AT: let me read everything clearly first then if you have any question, you can ask me.

AT: Right now is 6:40, and we will start the interview, it's a uh 6, 18:40 hours; Cst Ali Tcheshmejoui for the record badge number 55323. We are conducting an interview with Mr. SHARIFPOURAN Gholamreza

Is that correct your name?

GS: Yes

2:46

AT: One moment, sorry, (Background noise) I just want to read everything from my book so that there is no mistakes.

AT: You have been arrested forimportation of opiumimportation a controlled substance into Canada; do you understand? Do you understand what this charge is?

GS: No, no what is this charge?

AT: Do you understand why you have been charge Do you understand what is importing controlled substances into Canada? Do you understand the charge you are facing meaning what? Police have charged you for importing controlled substances into Canada. Do you understand what does this mean?

GS:No

AT:Ok,

GS: Hum uh, Can I leave all these matters to my lawyer and speak to him?

AT: Yes, I only want to ask these few questions in this regard to make sure all these matters have been read to you and your lawyer. Then any questions you have if you want to discuss about to a lawyer.

I just need to go through these one; because we live in Canada, we have lots of rights. I have to assure that you aware of. If you have spoken to another police officer.* you understand those rights*

GS: (Hums) Meaning regarding to what to other Police?

AT: Meaning today, they came charge you and arrested you for importing controlled substance into Canada.

GS: Yes yes yes

AT: It means you knowledge what charge we are facing you with?

GS: No, I didn't know, I didn't even know I have a charge

AT: They are charging you means don't you knowledge they arecharging you?

GS: Yes, I did not know I had charge, no.

At: It means right now, you get it?

GS: I didn't know I am sick didn't know anything. This was for my prescription.

AT: Before you continue or say anything to me* tell you I need to go through this* so you understand* it is my duty to let, to tell you that you do not have to tell me anything, unless you wish to do so. Do you understand*? Therefore I will tell you in Iranian, for any reason, you don't have to tell me anything, unless you wish to tell me. Do you understand?

GS: Yes, yes yes I get it.

AT: (Breathing)* It is my duty to tell you that whatever you saying will be taken down in writing and may be used in proceedings against you. Do you understand? It means right now I have to tell you that whatever you say will be written down and can be used in court, and be used against you. Do you understand

GS: Yes

AT: I must also tell you that you have the right to call and consult with lawyer and your parents, uh, no sorry one moment. You have the right to telephone any lawyer you wish. You also have the right to get free advice from legal aid lawyer when you are charge with an offence, you may apply to legal aid plan telephone number. I will give you the telephone number for legal aid number or if your previous lawyer, which will put you in contact. Do you understand?

GS: No, I did not understand.

AT: Ok Then I will tell you in Farsi regarding this charge you are facing for bringing restricted materials into Canada___.You can speak to a lawyer, any lawyer you wish to talk to. If you don’t have a lawyer, you can speak to a legal aid. Legal aid is something we have in Canada that gives you advice in this regard.

Do you Understand this? This*right right__*that you have?

GS: Yes, can I have a lawyer?

AT: And uh Do you like to speak to a lawyer now? Yes. Now?

GS: Yes.

AT: Now?

AT: Let me ask you this, did you ever speak to a lawyer today?

GS: A little bit. I contacted a lawyer and I was told that I will remain here tonight. Tomorrow morning I will see a judge and putting someone___

AT: You uh, whatever you told the lawyer about___ is between you. That's your privacy of yours.

GS: Uh ,Ok, we spoke sort for a few moments. Uh, your coworkers contact me with and spoke to one. I don't know who it was.

At: huh, It wasn't your own lawyer?

GS: No. I just spoke to a lawyer, just like that. It was not my own lawyer, but arrangement was set for me to talk to.

AT: It wasn't your lawyer?

GS: No, but plan has been arranged for me to speak to him .

AT: Uh huh, so you have spoken. I will have just a few things that I have to start and go through. At any time if you wish at any time to speak to a lawyer again, we can call them again and tell whatever you want to tell about previously. Right now you don't have to tell me anything. That was your privacy, and that your own right to exercise your rights. At this moment I just want to start asking you about a few uh basic questions .

GS: ( Nodding as acknowledging), Yes .

[12] The interview then centered on Mr. Sharifpouran’s recent trip to Iran:

GS: About a month and half ago I went and returned couple days ago, 2-3 days ago, and_

AT: And why did you go to Iran?

(Time base on the DVD 9:14)

GS: Both for my illness check up I do check up both here and there. And I have an ill sister, and to visit her visit family and then to purchase. Uh_ we have a business. For store supplying I came and unfortunately this issue arose. I made a mistake and for the first time I made a mistake.

AT: So you went to Iran to buy products for your business.

GS: Both, for my business and also visit my family and for my check up.

AT: And then uh, I heard you have a heart condition, surgery_ pertaining to that?

GS: Yes, uh I had two heart attacks, meaning uh, once in Iran, once here; in Iran_ the ambulance took me. The record is there and likely I should have it's CD. And then I was here that happened to me again as i went back again. I am under control of physician and every 6 months, it's in my file, they do a heart test on me and all the other work; putting something around this area and they are very careful about me and taking care of me.

{DVD time: 10: 10)

AT: Ok, if you feel uncomfortable or feel you need to take your medicine, uh

GS: I have them over there. Your Manner is so great. Thanks to all of you.

AT: As long I just want to be certain that's good.

GS: It's been great and I appreciate everything.

{DVD Time: 10:36)

AT:__No, because you know I just want you know, because we live in Canada. We have lots of rights and I wanted to make sure that you understand, this matter and I wanted asked you a few questions.

You mentioned that you went to Iran for your business in Canada? What business, where is your * business*?

GS: We have a juice bar.

AT: You have juice bar. Where is your juice bar?

GS: Because I don't want police ... Yonge and Clark.

AT: Do you have the exact address?

GS: Yonge and Clark. It's 7368.

AT: 7368 Yonge and then uh, Yonge and Clark, uh.

10:58

GS: Is there any way to do something that uh this somehow does not spread in society? Because my honour is very, and our family's reputation is very important to me ..My daughter is planning to get married and my son as well. We are a great family and sorry that I'm saying this I made a mistake and right now all my family are at risk. I'm asking you please don't let this go or gets said anywhere because they should avoid going to front of the store. Any how they had gone over there but they behaved very nicely. They treated me very well. They came inside, spoke, but if Police cars approach a house, is not good. I just wanted them somehow to save me from becoming embarrassed. But however uh, my family's honour should be considered not to be at jeopardy.

AT: Yes, yes, continue. You said who is in danger?

GS: No, the reputation of my family.

AT: Oh, yes yes. I uh, don't work in this office, but I will pass your message to them.

GS: Be careful not to post picture and uh, don't put this matter on satellite or somewhere like that.

AT: You see, to be honest ,I don't know any idea about this case, but as far as I have heard ... I have some question a few questions from you about this shipment that came in. I was told you have said that you use opium for your heart condition.

(DVD Time: 12:24)

GS: Yes yes.

AT: And the reason you brought this into country was for this. And I wanted to ask you what happened exactly, precisely? Because you said one month ago you went to Iran. You said you went to purchase things for your heart.

GS: Yes, yes. I went once and saw Dr. Nikbakht and he said that after age of 60__this is considered as medicine in Iran. This even before that. After 60 years old this is a medication product, not a restricted material. That's true that it causes dizziness, but it is still considered as a medicine. They really help a lot of for, cholesterol, blood pressure, heart, blood flow, ___ Because I was somewhere that I would take a lot of medication. There was a doctor that ___ I haven't use it. You can test me and see. I don't even smoke cigarettes and I'm 60 years old; and also considering the disturbance I had. I don't even know how much it is worth, God knows___. They said you boil it, then extract it's water, mix some of it with tea and drink it. That's medication for your problem ( ...)

GS: If you search it in traditional book___there is something like this in Iran. It is not like those things for mind blowing. It is used as medication and those people who are using this, for example over there, are all considered as a sick people not being at guilt or criminal.

I thought that in Canada it was the same. If I knew I wouldn't ever do something like this.

(DVD Time: 13:33}

AT: You, so you uh have you previously imported this?

GS: No never. This was my first and last time.

A.T: So, you didn't buy this?

GS: No. Even .if there is anyone who show up here and testify that I have seen this before.

[13] Mr. Sharifpouran was asked about the opium he bought:

AT: And this medication you bought, as they say is for you to boil it for your heart and uh__. How much did you pay for it?

GS: I don't know.

AT: Because you bought it in Iran? Was it in Toman?(currency)

GS: Yes. This is all from Iran. I think like 3 Tomans, 3 million or like so like like 700-800 dollars or 1000 dollars something like that.

AT: For a kilo? Per kilo?

GS: Yes, so like_ _For everything, yea everything.

AT: For everything? How much for everything?

GS: 1000 dollars.

AT: 1000 dollars___and this uh Marouf Tochal it's written here 7368 Yonge Street Toronto. This is the juice bar?

[14] Mr. Sharifpouran was asked about the shipment. He indicated that he went to the freight forwarder on March 11, inquired about the package, and was told that they were checking in on it and would notify him. He went by himself.

[15] Mr. Sharifpouran was then told of the possible punishment he might face, in the following transaction:

AT: Ok, umm Just the only thing I need to clarify for my coworkers and for you is if you understand the chargeof importing of opium into Canada, which apply very serious punishment. Meaning that if you go through the courts and you are charge for this__, it can be up to 10 years. But I need to bring the book to tell you exactly, but any way it's a lengthy of time in jail At the minimumdouble digits

GS: Minimum 10 years?

AT: Minimum 10 years and it can be longer that that.

GS: ___For what?!!

AT: For importing a controlled substance. It means if in court* you found guilty* and they find you guilty for this, it means the judge in court will ask for all related evidence and would be brought forwards. You need to understand that we as RCMP, RCMP is well equipped and has a lot ability, such as technology to intercept telephone communications. We can control people's telephones. We have vehicles and are able to conduct surveillance on people. Wherever you are, we can locate you. It means it could be one month that they are watching out the matter, real or assuming, not sure. I only came here to make sure you are acknowledge the matter and I have nothing to say other than this.

GS: Yes.

AT: And if someone was involved with this matter. This is the opportunity for you right now. We are here and its_ If you are concern for your son's safety or your or if someone wanted to use your business name to ...

GS: No, no no not at all.

AT; Now is the opportunity to_ because I will tell you again. The RCMP is aware of everything.

GS: No, no no_ if this was_

AT: So, you just went alone and__

GS: If I wanted to do something, I would do it in the last 8 years that I have the business.

AT: You have the business for 8 years and 15 Kilos have come in.

GS: 5 Kilo?! 15 kilo, no way you are mistaken.

AT: You are saying that is cost around 1000 dollars for everything, so how many kilos was there?

GS: No way, you are mistaking. I don't know, but it's not 15 kilos.

AT: Do you know how this came in, in these jars? I don't know your business is a fruit bar. When you went to Iran to order this?

GS: What is a jar? It was made for me there. There was an Afghani who__ sometimes__ if you have paid attention, there is no such thing_ (breathing).

AT: Ok, so you don't know how much?

GS: No no, God is witness, I swear I don't know.

AT: I came here to find the truth. You are telling me that the Doctor over there said to boil it___ because if anything there is uh are Doctors. In Canada as well you can go right here. If you need anything medicine I prescription.

GS: I'm telling you the truth. No no, there is a difference with the culture. In Afghani's culture people put it under their tongue. Everywhere is different, Pakistani's Indian's, Iranian's culture, al have their own traditional customs. In here people don't, so _I don't know for this uh and today this happened. don't know why I didn't try it before, but normally for people over 60 years old it is a medication.

AT: uh hum, Have you ever been in Iran Javan. The business Iran Javan, in that area? Have you had business dealing there or?

GS: Iran_ that area, yeah why not. I have provided supply for many business there example there are several supermarkets that distribute our

AT: . Ok, correct. Ok, and then so you did not know it was 15 kilos, but

GS: No not at all.

AT: but you knew it contained drogs?

GS: Yes yes, but 15 kilos no way.

AT: And then who was that individual in Iran who prepared this for you? You said an Afghani?

GS: I don't know him. An Afghani who came was introduced __and

(DVD Time: 24:22)

AT: And this information here is written __Me Son __Co

GS: No no these are companies that just do shipping. They are not involve. They would notify Police if the knew.

AT: uh huh, Notifying the Police in Iran?

GS: Yes, yes. Those are all responsible. They are located at the air port.

AT: Sorry, you don't want to tell me any more today about this issue?

GS: No no. If you are asking anything.

AT: If there is something that you want toadd or if you want to tell me?

GS: No, no I'm just worried about my family.

AT: Because if there is anything you want to say, right now is the opportunity for you if you want to. If there is anything in your mind, now is the time for you.

GS: As I said, I'm worried about my family.

AT: Are you worried about someone that uh that may be involved in this issue that would want to?

GS: No not at all. No one is involved. My wife, my daughter our reputation is at risk. We are not a family that uh everyday having problem. We don't have any issues. We have been living here for 10 years out of problems. Not even one, none of us since we have lived clean and pure. I am worried about my prestige. In___ I almost had heart attack this morning. Seriously I almost had a heart attack. For what reason, for what!! I said to my daughter don't worry, this is about me. When my daughter told me over phone that Police came over to the store, I said don't worry, that's relates to me. When my daughter said over the phone, that Police went to the store, she was really having heart attack. I said don't be scared, it's nothing. A problem has come that__

AT: Well, I don't know, 15 kilos, and it's controlled substances.

GS: If you take 15 kilos out of that shipment, you can execute me (laughs)

AT: No, uh the concern is opium, you know what the opium is?

GS: Yes, opium, I know.

AT: In Canada it is illegal

GS: What’s that?

27:30

AT: In Canada it is illegal, illegal means illegal. And it is illegal in Iran as well, and you are telling me.

GS: Yes yes.

AT: So you knew it was illegal and you're saying you went to Iran to

GS: No no not for this purpose only. I said I did say I went for this purpose.

AT: For how many reasons you went to Iran?

(DVD Time: 27:49)

[16] With respect to his level of knowledge, Mr. Sharifpouran said:

GS: Picking up_ well I didn't even think that something like this would be a problem in Canada, like charge.

AT: You did not know opium is illegal?

GS: No, not at all, I did not know. I mean I've heard about other drugs being illegal, yes; but in relation to this one, I didn't know it at all__ I don't have any interact with anyone.

AT: So, so you thought it's illegal; so like in Iranian community. Look* I have a hard time believing that you are aware of the meaning of you statement that you saying you didn't know it's illegal in Canada.

GS: uh hum, No I had no relationship with anyone regarding this. I did not have, I don't have and__

32:10

AT: I know, but within the Iranian population in Richmond Hill where most live, there are many who use opium, smoke it. Many people who sell it, and they all know it's illegal. You can't tell me that you have no idea that it was illegal in Canada. I can't believe this statement.

GS: ____No, I thought that ,no, __ok, uh, really - I uh and you said to me that I don't have continue, but I want to honestly tell you, because I have no relationship with anyone. God is my witness I only live with my family, my kids and. Go on outings and normal thing, Soccer and . Now this matter happened to me. I made a mistake and this has happened. That's all. And this uh what it was or how much I say __ I'm 60 years old for medication. Yes, of course if someone is selling it or having a group for gathering or so on and so on coming going, in that case the issue would be different. uh For something I put myself into

AT: You?

GS: I have put myself into this situation, whiles I was going using it for my illness.

(DVD TIME 13:16)

[17] With respect to picking up the shipment containing opium, Mr. Sharifpouran said:

GS: No no it's, no. Look, because uh when they give notification about shipment and to read_they usually call him [Ali] since he is like manager of the store They called him and_ either he would go or myself. But this time since I knew it, I went there. I got a feeling due to, god forbid, if any issue rises, which happened, it would be better to be taken on me, not on anyone else.

AT: So you knew that it is illegal or that they would cause an issue about it__

GS: No no because uh I want to tell you that this is not like any way, "Noon Barbary"; in any event, it's drug, a drug like it's not like uh White stuff, but because I thought it's something traditional. And I did not think I would run into any conflicts. This is true. Here, approaching is not towards traditional but artificial which I hate. I thought that we have __ and traditional things and I thought that if anyone wants to use it well I would go or even if young kids touch it_they will. But any way now I have passed ages, I'm 60 years old now.

AT: uh huh, You would go, yes. Ok, then can you please just stay here for a moment and I will return.

GS: Of course. I'm a little thirsty, can you get me some water please?

AT: I will bring you some water right now. I will bring some right away.

36:09(Break)

[18] After returning with a glass of water and asking Mr. Sharifpouran if he was comfortable or needed to take medication, the interview continued with Mr. Sharifpouran expressing concern about his reputation being affected:

GS: I told you everything honestly. I beg you that. Now you know me and my business is in a famous area. And I'm sure you know about it. Maybe you have even been there. I don't know; since people in your age come to our store. We have costumers from 14-15 years old to 70/75. People prefer__ meaning those people are coming mostly are youth. I hope the friends don't hear anything. I beg you not to speak to lots of friends, your father, mother about this. Because really our reputation will be gone. For our life, for our business, I worked hard and I want them to besafe. Whatever happens to me, wouldn't be that important; but I beg you about this matter since you know me now.

And, you know, try not to let anyone realize this, even mom and dad, don't disclose please.

AT: Mom and dad, you mean?

GS: I mean your own family.

AT: No, I am not in that neighbourhood and I have not been either.

GS: Because you said you live in Richmond Hill.

AT: uh, No, because you live in Richmond Hill. Well! know the neighbourhood but I have never been into your business and I will not be._ I can indicate to them about not doing press release in news, but it's not in my jurisdiction to dictate it, you realize that. It means if they say 15 kilos of opium has entered in, it mean that would be a very big issue.

GS: Don't say 15 kilos, it's not 15 kilos.

AT: This is what I was told. And I just spoke to my supervisor. They have couple questions. They like me to ask you um before we speak about this matter. There is a few things for me to tell you uh in relation to the charge you face and to understand it.

GS: You think which way I will be dealt with tonight?

[19] Constable Tcheshmejoui returned to the issue of penalty, referring, to the Criminal Code which he brought with him on his return from the break:

Let me tell you this; you, for importation of opium meaning opium, um, I will read to you in English first, and then I will translate it into Farsi after.* Every person who contravenes uh subsection, one, with subject matter of the offence its substances in included in schedule one or two, is guilty of an 'indictable and imprisonment for life, where the subject matter offence is a substance included in 'schedule three is guilty of an indictable offence and liable to prison for a time not exceeding 10 years, so it's an indictable offence* I will tell you in Farsi, meaning anyone who with drugs* opium schedule one one can face up tolife* to jail up to 10 yearsmaximum penalty one of these two, but you're saying you're saying you have a clean record and you have never done something like this, so all depends.

GS: __For one's life? The whole life?

1:00:00

AT: life,* It can be life* the whole life, but people are eligible for parole. And all these things are in place. But thepunishment the judge, the maximum can be up to life .It means _10 years or maybe less. It all depends, based on the evidence of the case, but right now the evidence, everything is showing that uh you knew, you knew that it was opium. You said you went there yesterday with the Honda Pilot to pick up that, correct'

GS: I went to pick up my shipment, yes.

[20] Mr. Sharifpouran was asked, again, if there was somebody else who might be involved:

GS: Not at all, no. I know it's not that much_ I don't know how much it was, but I know it was not this much,____

AT: Is there anyone else engaged? Someone who willing to add to it? I'm not implying to your son. May be some friends or anyone as family, acquainted in Iran.

GS: No no no no. Let me say something. Let me tell you something. Swear on that god who created us, wish to see may family are dead if I'm not telling the truth; neither from my brother in Iran or from my friends in Iran, or from my family or friends here, if any of them, if one them would say that I'm smoking a single cigarette, I would close down my eyes and saying nothing but accepting all of these. No one no one This is an issue that has occurred to me, unfortunately this happened. There is no such a relationship between me any anyone else_l did not have, neither I will_ You have to believe this from me. As a Muslim or an Iranian, actually forget about being Muslim, as an Iranian, I'm telling you the truth. But anyway however you like report this. You can, I know you will do that, and report it_ Whatever you report may impact on police uh judge .It's up to you. all these would help me. To me it looks like you would help me. Deal with me as someone is coming from the same country. As a father, mother, friend, brother, whatever you think. It can't be father or mother, but as a friend, uncle, whatever you think. If it is possible to be worked on, if not, then whatever happens, happens now. And I'm just saying in this case. There is absolutely no relationship or gaining from it__ And swear on god of Mohammad as my witness, there was no -benefit to be gain, neither in Iran, nor here. If you find one individual who telling you that I have ever held a cigarette with my hand, then instead of saying that there was 15 kilos, I would say there was 150 or 300 kilos and I will sign it as my confirmation.

[21] Mr. Sharifpouran was asked about his financial situation. He said:

AT: So, financially and business wise you are in a good shape, no reason like you would try to

GS: Yes, no, and if I wanted to, I would done this, during the last 8 years of running my business. So why I have not done this before, over these 8 years? For 8 years I have had this business, then why should do this now? Regarding my assets and my only one car, I should possess 4 cars now instead of 1aving only one, if I was doing this. We could get two more cars for my kids. My daughter goes to school. Poor girl needs to wait for me to get a ride. Her brother commuting here and there to pick up this and that, groceries, shopping, when I want to go play soccer or see my doctor. We would have 4 Mercedes Benz if we were involved with this kind of job. You know this, since you are present in that field. How come we are 4 people with having only one car if we were working like that. We had a Toyota Corolla; 3-4 months ago it was involved in an accident and it got ride off. Now we are dealing with its insurance about that. We were not able to afford leasing two more cars for our life.

[22] Again, Mr. Sharifpouran expressed concern expressed his thanks to the police were behaving properly. However, he was very concerned about the effect the charge would have on his reputation. He was glad the police came and plain clothes, although one car was marked. He said “I am thankful for their behave. For their car which was covered. We are pleased for that. How the police treated us at the door. You know they came in quickly and did not wait at the door to be exposed to our neighbours.” He advised that his reputation was essential to him. He asked if someone to go speak to his wife. He asked if Constable Tcheshmejoui could speak to a supervisor if there was any way “… If you can ask them here to take me into court by a manner not to create embarrassment for me.” Then the following occurred:

GS: Since I don't want really create any problem for you, because of me. I was holding my pain, took a pill for my pain, opened the door to let them come in. At that moment I felt my heart was pounding faster ,due to increasing of my blood pressure. Opening the door and the pill___ and don't want to put anyone in trouble, because I don't ___Something like this for the first time that I encountered with Police. I didn't even know it was Police, God knows, and _In Iran I have one sister that has health issue. We have to take care of her in turn. She is reached an age now that she can get married, due to her brain issues. These are the things were net necessary to tell you, but I'm telling. One of the reason for me to go back and forth is my sister's situation and I have to take care of her. You can call them. These duties are shared between us as brothers and sisters. I usually go there every 3-4 months. I have to go and take care of her for 1 month till her pain ____. And then it's turn for other 1 sister or brother to watch her. It goes by rotation. She is alone, like 50 or so. She is not married. And there are problems in life. In any circumstances shall you help me, I thank you for that, for your assistance. Uh This problems has happened to me and I don't know how it happened. I'm happy about it. And you treated me like a gentleman. And you told me from the beginning and indicated to me that I do not have say anything to you. But from what I saw, you are a very kind man and gentleman, and I spoke truthfully about everything, whether they will be used against me or benefits me. I've said everything to__and to judge as well.

AT: Yes this all depends. That's correct. Right now if there is anything you want to add or change, right now is your chance.

GS: There is nothing, nothing, no. If someone I would know to be related to this, I was like why uh__was yeah, they would tell or_ God is my witness and I will repeat it again and again, 10 more times saying that. If you want me testify or swear to Quran or Bible or whatever you want me to oath. There is no one out there to, no one there__to be aware that I smoke even a single cigarette. This is stupid that happened. This was something ultra stupid, very silly which I did. I am very upset myself. I wish I would die not to see this today.

Voluntariness

1. Position of the Parties

[23] The Crown says that both statements were voluntary. With respect to the statement taken at Mr. Sharifpouran’s home, his statement was a spontaneous utterance given either just before or during the caution and reading of 10(b) rights. It should be admitted. There is no doubt that Mr. Sharifpouran had an operating mind as defined in the case law, and there is no evidence that any threats inducements or oppression were applied or made such as to overbear his capacity or operating mind.

[24] With respect to the statement at given after he was taken into custody that too is voluntary. Notwithstanding that his first statement was blurted out before he could be fully cautioned and be provided with his right to counsel, he indicated that he understood caution and his right to counsel. He was given his right to counsel and exercised it while at the RCMP detachment at Pearson Airport. While he was not given a secondary caution, he was given the primary caution and provided with his right to counsel, in Farsi, which both of which he acknowledged he understood.

[25] The defence says that Mr. Sharifpouran it did not have an operating mind, in that in the circumstances of the interview at the home, the scene was chaotic, he was nervous and stressed, and his family was stressed. Further, he was cautioned and arrested at the end of the meeting, not the beginning of the meeting. Constable Choudhary said that Mr. Sharifpouran was confused. One doesn’t know how good the translation by Ali Sharifpouran was.

[26] With respect to the statement at the police station, he did not go voluntarily. It can hardly be said that when a police officer asked him to come into interview room, he did so voluntarily. He did not understand what the charge was; this is clear from the transcript. Further, he did not know the extent of his “Jeopardy” in terms of the charge against him. Further, that jeopardy changed at two times in the interview: once when he was told that the penalty would be a minimum of 10 years and then after the break, when he was told that the penalty was 10 years to life.

[27] The defence also argues that I should have reasonable doubt as to what happened at the home. The defence indicates that if one accepts Van Alstine’s time estimates, the whole meeting at the home took eight minutes. However, if one accepts Choudhary’s evidence, the visit was 15 to 20 minutes. Constable Van Alstine says that from the time he entered the home to the time that Mr. Sharifpouran blurted out his statement at the home, was 2 to 3 minutes. Therefore, I should have reasonable doubt because there was at least 15 minutes unaccounted for in the visit.

2. The Law

[28] An accused person’s statement to a person in authority is presumptively inadmissible unless the Crown can show beyond a reasonable doubt that the statement was made voluntarily: R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.), R. v. Spencer (2007), 2007 SCC 11, 217 C.C.C. (3d) 353 (S.C.C.), at para. 11. The onus on the Crown is a heavy one: R. v. Sabri (2002), 2002 CanLII 44974 (ON CA), 166 C.C.C. (3d) 179 (Ont. C.A.), at para. 14.

[29] The voluntariness aspect of the confessions rule is to be assessed on the facts in any particular case. The concern for reliability remains the “primary reason” for the confessions rule: R. v. Singh (2007), 2007 SCC 48, 225 C.C.C. (3d) 103 (S.C.C.), at paras. 29-30; R. v. Colson (2008), 2008 ONCA 21, 230 C.C.C. (3d) 250 (Ont. C.A.), at para. 34 (leave to appeal refused [2008] S.C.C.A. No. 101); R. v. Deane, (2000), 2000 CanLII 17047 (ON CA), 143 C.C.C. (3d) 84 (Ont. C.A.), at para. 40 (affd 2001 SCC 5, [2001] 1 S.C.R. 279); R. v. McIntosh (1999), 1999 CanLII 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.), at para. 20 (leave to appeal refused, [2000] S.C.C.A. No. 81).

[30] The voluntariness test of admissibility must be applied on the facts of each case: Oickle, at paras. 23, 71; Singh, at para. 53; McIntosh (1999), at para. 21. In assessing voluntariness, the court must be sensitive to the particularities of the individual suspect including his or her state of mind during police questioning: Oickle, at para. 42; Singh, at para. 36. In effect, the application of the confession rule “will by necessity be contextual”: Oickle, at paras. 47, 71. All relevant circumstances, the “entire context”, must be examined: Spencer, at para. 17; Oickle, at paras. 54, 71, 88.

[31] An in-custody arrestee has the right to choose to remain silent. The common law voluntariness and s. 7 Charter tests for determining whether there was constitutional compliance with an accused’s right to choose whether or not to remain silent are functionally equivalent: Singh, at paras. 25, 37, 39, 49.

[32] The right of an arrestee to choose to speak to a person in authority, and knowledge of that right on his or her part, “is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor in determining the voluntariness of a person under arrest or detention”: Singh, at para. 31; see also R. v. E.B. (2011), 2011 ONCA 194, 269 C.C.C. (3d) 227 (Ont. C.A.), at paras. 86-8 (leave to appeal refused [2011] S.C.C.A. No. 455); R. v. Lourenco, 2011 ONCA 782, at para. 7. The “right” has at least two components – the fact of a choice whether or not to say anything to the police and that if the choice is to speak the consequence is that whatever is said may be used as evidence in court if the arrestee is charged: E.B., at para. 91.

[33] Under Oikle, the court must determine whether the accused's statement to a person in authority was the result of an inducement (promise or hope of advantage), or threat by the part of the police, whether explicit or implied. Not every inducement or threat by the police means that the statement the accused makes it not voluntary. The inducement or threat makes the statement involuntary when "…the inducements [or threats], whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne": Oickle, at para. 57; see also R. v. M.S.M., 2014 ONCA 441, at para. 9. The same paragraph of Oickle continues: "The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise". There must be actions of the police, verbal or otherwise, which operate to induce the making of a statement through fear or hope of advantage. If the hope may be self-generated, is irrelevant: Oickle, at para. 57; R. v. Hobbins (1982), 1982 CanLII 46 (SCC), 66 C.C.C. (2d) 289 (S.C.C.), at p. 292.

[34] Spencer, at paras. 13 and 15, says that while the existence of a quid pro quo may not be "an exclusive factor, or one determinative of voluntariness", but it remains an "important factor in establishing the existence of a threat or promise.

[35] Even then, "while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry of voluntariness": Spencer, at para. 19.

[36] For the most recent statement on Oikle, see R. v. Brown, 2015 ONSC 3305, [2015] O.J. No. 3046.

3. Analysis

[37] In this case, I am satisfied beyond a reasonable doubt that both the statements at the residence and at the police station were voluntary.

a. At The Home

[38] I am satisfied that Mr. Sharifpouran’s statement at the home that he was aware that he imported opium and that it was his medicine is a spontaneous utterance. I find that Mr. Sharifpouran uttered the statement after he was informed that he was being arrested for importing opium and either before or during the time which the caution was being administered along with his right to counsel. I also find that Constable Van Alstine’s actions in attempting to stop Mr. Sharifpouran from speaking until the caution and counsel right were provided to him were reasonable. Placing both of his hands in the air palm side towards Mr. Sharifpouran is a well-recognized signal to stop talking. Constable Van Alstine said the translation was moving very quickly and that he did not time to do anything else other than raise his hands.

[39] I do not accept the evidence of officer Choudhary with respect to what transpired in the conversation. Officer Choudhary was often not responsive or only vaguely responsive to the questions he was being asked. Further, there is a clear discrepancy between his evidence and his notes. In his notes, he indicated that after being told about the charge, officer Choudhary says that Mr. Sharifpouran then stated that he had a heart condition and that his doctors know and ultimate opium was good for his heart. It is only after that according to his notes that his caution and his rights were read. In his oral evidence, however, he said that the utterances made after the rights and caution were read.

[40] I do not accept his explanation as to the difference in the order of events between his oral evidence and his notes. Further, officer Choudhary said that he was not a participant in the discussion regarding the caution and the utterance. Rather, he was partly listening and partly keeping an eye out for other risks that might have been in the house.

[41] I also have difficulty accepting Ali Sharifpouran’s evidence. There are number of reasons for this. First, Ali has the natural tendency to want to harm his father and the natural wish to assist him. This may explain what I found to be sometimes vague evidence from Ali. The only point in his evidence during which Ali was certain is when he said that Mr. Sharifpouran was never offered or warned about retaining or speaking to a lawyer. He was adamant, perhaps overly so, especially in light of further questions. Ali was asked if he heard his father say the words “for sure” to the police following the mention of counsel. He didn’t remember. He didn’t remember his father saying that the opium as brought back because of his heart condition. He didn’t remember the police officer putting up his hands to stop Mr. Sharifpouran from continuing in his utterance. He didn’t remember whether the police mentioned to Mr. Sharifpouran that he had a right to silence. He didn’t remember his father saying that opium was not legal in the Iran.

[42] That Ali would be vague on most answers with the exception of the right to counsel does not stand to reason.

[43] Further, Ali also confirmed that Mr. Sharifpouran’s body language and answers confirmed to Ali that Mr. Sharifpouran understood the translation. He understood what Ali was saying to him in Farsi. There is nothing that affected his comprehension of what was being said. At another point in his evidence, Ali said that he heard the police say to Mr. Sharifpouran that they were arresting him for bringing opium into the country. Mr. Sharifpouran knew that the arrest meant that he would be taken away by the police. Mr. Sharifpouran did not want to upset his family. Ali said that he understood and translated the charge to Mr. Sharifpouran and that Mr. Sharifpouran understood it. In cross-examination he confirmed that he translated to his father that the police were there to arrest him for importing opium.

[44] As indicated, I find that Mr. Sharifpouran understood that the police were there to arrest him for importing opium and that caused him to make the spontaneous utterance at issue in this motion. I find that at the time, while he may have been anxious, I find that he had an operating mind and that there was no inducement, enticement, threat, or any other thing done by the police which would have overborne his mind to such that he no longer had an operating mind.

b. At The Police Station

[45] I also find that the statements made at the police station were voluntary.

[46] There is no doubt that the RCMP did not provide Mr. Sharifpouran with the secondary caution. However, by the time he arrived at the police station he had been given his caution and advised about his right to counsel. In addition, he had exercised that right by the time the RCMP began the interview in Farsi. Based on what occurred at the home I find, in all the circumstances, that he was aware of the reason for his detention aware that he had the right of silence, was aware and was aware of his right to consult with counsel, which he exercised.

[47] Unlike at the house however, I find that the police offered inducements or threats, impliedly, during the taped interview. They explained to him the consequences or sentences applicable if he were convicted. Constable Tcheshmejoui, by his own admission, did this to try and elicit other information from Mr. Sharifpouran including the involvement of co-conspirators. He approached him at least two occasions the issue of co-conspirators, including whether other family members were involved.

[48] There is no evidence, however, that any implied inducement or threat overbore his mind such that it was no longer an operating mind. Mr. Sharifpouran expressed surprise when he heard that the punishment was a minimum of 10 years. He expressed surprise again when he found out that the punishment was 10 years to life. Aside from his initial surprise response, however, his demeanour, the way he answered questions, his penchant for interrupting the questioner, did not change. There were no signals from the video recording or the transcript that indicated that he was not acting otherwise than with an operating mind. Following the statement to him by Constable Tcheshmejoui of the punishment would be 10 years to life, Mr. Sharifpouran did express many times his concern about the effect of the charge on his and his family’s reputation given that they had a business in the Iranian community, operated in the Iranian community, and that both of the children were due to get married. While this followed, in time, the information about the about the penalty, I find that it was not as a result of providing Mr. Sharifpouran with information about the penalty. From the outset of his first contact with the police Mr. Sharifpouran was concerned about the effect that his charge and police involvement would have on his reputation. He in he invited the police into the house quickly so that they were not on the doorstep where the neighbours might see. During the interview in his home he mentioned several times that he was concerned about his reputation and concerned about what others might think. He was happy to move the interview to somewhere else.

10(b) Right to Counsel

1. Position Of The Parties

[49] The Crown says that there was no violation of Mr. Sharifpouran’s right to be advised of the right to speak to counsel under section 10(b) of the Charter. The interviews were conducted professionally. With respect to the statements made at the home, they were spontaneous utterances made before the caution and 10(b) right could be read. Therefore, it is admissible.

[50] With respect to the statements in the RCMP detachment, Mr. Sharifpouran was aware of the reason for his detention. He had been given a caution and his 10(b) right, and had exercised that right by speaking to counsel. The fact that he was not given a secondary caution is of no moment. The primary caution and 10(b) right had already been given to him while he was at his home, which he said he understood.

[51] Mr. Sharifpouran says that his 10(b) right was violated. With respect to the statements in the home, there is conflicting evidence as to when the right to counsel was given. The defence relies on the evidence of Ali in this respect. In any event, the caution ought to have been given as soon as possible after entering the home, not at the end of the visit.

[52] With respect to the statements made at the police station, the defence says that Mr. Sharifpouran never understood his “Jeopardy”. He never clearly understood what the charge was. Second, until he knew the penalty that he faced, he didn’t know his risk. He never clearly knew what his jeopardy was until towards the end of the interview when he was told that the penalty was 10 years to life in prison.

[53] Further, Mr. Sharifpouran argues that he asked for a lawyer and was not given access to one.. He ought to have been. Instead, Constable Tcheshmejoui, having worked a 12 hour shift and faced with the possibility of perhaps hours of delay so that Mr. Sharifpouran could have a second consult with a lawyer, took the shortcut and pushed through with the interview notwithstanding the requests to see a lawyer.

[54] Mr. Sharifpouran admits that according to Sinclair, there is no right of second consult with a lawyer unless certain exceptional circumstances exist. One of the exceptions he argued was that because of his confusion, which was clear, especially after the penalty was given, Mr Sharifpouran ought to have been given a second consult. Finally, Mr. Sharifpouran says that he should have been given the secondary caution.

2. The law

[55] Sections 10(a) and (b) of the Charter cannot be read in isolation. They work in tandem.

[56] The accused’s right to be told promptly why he is detained, contained in s. 10(a) of the Charter is founded on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it; R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 44 C.R. (3d) 17, 7 O.A.C. 46, 17 C.C.C. (3d) 419, 12 C.R.R. 354 (C.A.), [C.C.C.] at p. 424. Further, one must have the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, 1 [S.C.R.] at pp. 152-153 "[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy."

[57] In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right. In R. v. Taylor,. 2014 SCC 50, the Supreme Court of Canada said at para. 3:

Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees that detained or arrested individuals have the right to retain and instruct counsel without delay. In R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, this Court recognized that this imposes a corresponding duty on the police to ensure that individuals are given a reasonable opportunity to exercise the right.

[58] Section 10(b) provides that the accused should be treated fairly, and allowed to speak to counsel before making a statement to the police. The police must advise the accused as soon as possible about his right to counsel, and not elicit evidence from the accused until he has had a reasonable opportunity to exercise that right: see R. v. Suberu, 2009 SCC 33, 2009, R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613 (S.C.C.), at pp. 641-42, and in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 (S.C.C.). The accused must be advised of his right to counsel at the time of detention; see R. v. Logan, 1988 CanLII 150 (ON CA), [1988] O.J. No. 2107 (C.A.) para. 74-76, 30 O.A.C. 321, 45.

[59] The obligation on the arresting officers is to advise the accused of his right to counsel, refrain from eliciting evidence from the accused until that right has been implemented, and facilitate the accused to speak to counsel. The onus is on the Crown to show that any delay in allowing the accused to contact counsel was reasonable in the circumstances: see R. v. Ross, (1989) 1989 CanLII 134 (SCC), 1 SCR 3, R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, and R v. Luong, 2000 ABCA 301, [2000] A.J. No. 1310 (C.A.).

[60] The onus of proof of a 10(b) violation is on the accused, on a balance of probabilities.

[61] Where the accused has difficulties in English or French, the police must take reasonable steps to ensure that the accused understands his rights. Absent obvious evidence that the accused cannot understand English or has difficulty comprehending his rights, the onus is on the accused to show that he does not understand: see R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at para. 40, R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, para. 20. In Evans, the accused had sub-normal intelligence. In Bartle, the accused was intoxicated.

[62] Where the accused voluntarily makes a statement before he can be cautioned and given his 10(b) rights and his right exercised, his statement is admissible. Either his 10(b) right is not violated or the statement is admissible under s. 24(2): see R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343, para. The statement was not obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter: see R. v. Pearson, 2017 ONCA 389.

3. Analysis

a. Positions of the Parties.

[63] Mr. Sharifpouran says that I should accept the evidence of Ali Sharifpouran and find that during the discussions at the accused’s home, Mr. Sharifpouran was not given read his 10(b) right to counsel until the end of the interview. Mr. Sharifpouran agrees, however, that if I do not prefer the evidence of Ali Sharifpouran, then Mr. Sharifpouran’s utterance was spontaneous and therefore was admissible.

[64] With respect to the statement at the police station, Mr. Sharifpouran concedes that he was cautioned and provided his 10(b) right both in English and in Farsi. He also concedes that he exercised his right to counsel two hours before the interview when he spoke to a Farsi speaking legal aid lawyer provided and arranged by the RCMP. However, Mr. Sharifpouran says that he was confused over the “charge” and why he was detained. Further, once he was told that the penalty was at minimum 10 years, and again, later, when he was told that the penalty was 10 years to life, his “Jeopardy” changed, and he ought to have been given his diligent contact counsel, again.

[65] In any event, there is no doubt that Mr. Sharifpouran was not provided with the secondary caution, which is fatal to the crown’s case.

[66] The Crown says that that the statement at the home was a spontaneous utterance given during the caution and right to counsel. It is admissible. With respect to the statement at the RCMP detachment at Pearson airport, Mr. Sharifpouran was allowed to, and did exercise his right to counsel when they provided him with a Farsi speaking legal aid lawyer. He was provided with a caution and his right to counsel again at the beginning of the statement, both in Farsi and in English. It is clear that he understood his rights and opted not to exercise them.

c. At the Home

[67] I have already held that, for the reasons explained earlier, I do not accept the advice of Ali with respect the timing of the caution. I accept that while Van Alstine was cautioning Mr. Sharifpouran, and before he could give Mr. Sharifpouran his right to counsel, Mr. Sharifpouran blurted out his statement notwithstanding that Van Alstine raised his hands with open palms towards Mr. Sharifpouran indicating that he was to stop speaking. There is no violation of his 10(b) right under these circumstances. Once the right to counsel was given to him and he was asked if you want a lawyer, he responded “for sure” at which point the interview stopped. In my view RCMP acted appropriately. The statements made at the home are admissible.

d. At the RCMP Detachment

[68] I am also of the view that the statement Mr. Sharifpouran made at the RCMP detachment at Pearson airport is admissible. He had been given his rights and the caution at his home, then again at the RCMP detachment, the latter in both Farsi and in English. He had, in fact, exercise his right to counsel.

[69] I will deal with the two principal objections raised by the accused; namely, that there was a change in the accused’s Jeopardy and he was not provided with the secondary caution.

[70] Dealing with the secondary caution, the absence of the secondary caution is not fatal. The case law says that the question whether the accused, in all the circumstances, knows the situation he is in and the consequences of it. Full information is not required. Technical wording is not required. The court must look at the reality of the total situation impacting on the knowledge of the accused, and not the technical issues of what he was told; see R. v. Smith, [1991] 1 SCR 717. In this case, Mr. Sharifpouran was provided, at home, with a caution and his 10(b) right to counsel. At the cells, and before he made his statement, he was cautioned and given his 10(b) right to counsel again, in Farsi and English. I find beyond a reasonable doubt that by the time he made his statement at the cells he was fully aware of his right to silence and to counsel, the latter of which he had exercised. He said to the RCMP constable interviewing him at the cells that he understood those rights.

[71] Mr. Sharifpouran argues that he did not understand the primary caution and right to counsel. He points to a discussion between Mr. Sharifpouran and the Farsi speaking Constable over his understanding of the word “charge”. Therefore he did not understand his “jeopardy”. While there may have been some confusion initially, by the time he made his statements to the police it is clear from the transcript, translated, that Mr. Sharifpouran understood why he was detained and the nature of the charge that he faced.

[72] Mr. Sharifpouran also points to a discrepancy between the transcript as translated by the Farsi speaking Constable and the transcript by the approved translator as indicating that he demanded his right to counsel which he was not given. In the transcript translated by a translator, page 4, when Mr. Sharifpouran is asked if he understood his rights, he is reported to have said “yes, can I have a lawyer?” In the version of the transcript that the Farsi speaking Constable made, Mr. Sharifpouran is reported to have said “yes, I know I can have a lawyer”.

[73] The Farsi speaking Constable said that both translations were appropriate. The translator was not called. The Farsi speaking constable indicated that Mr. Sharifpouran’s body language and tone, however, indicated to him, that whatever the translator’s version was, the answer given to him in the interview by Mr. Sharifpouran indicated that Mr. Sharifpouran appreciated his right to counsel, not that he requested to speak to counsel.

[74] Mr. Sharifpouran’s main objection to the interview is that his right to counsel arose again because of a change in jeopardy. The leading case is R. v. Sinclair, [2010] SCR 310, which says that there is no general right to be given a second or subsequent opportunity speak to counsel unless there is a change in the accused’s jeopardy. The circumstances that lead to a new right to speak to counsel are rare, and include the introduction of procedures such as a polygraph or a line-up, where charges become more serious, or where police have undermined the advice the accused received or disparaged the counsel.

[75] In this case, Mr. Sharifpouran relies on a change in jeopardy which he says arises at two instances: first, when he is hold that the minimum sentence is 10 years and second, after the break, when he is read the section of the Criminal Code which indicates that the penalty is between 10 years and life imprisonment. That, says that counsel is a change in jeopardy. “Jeopardy”, says Mr. Sharifpouran, means not only the accused’s understanding of the change, but also an appreciation of the sentence.

[76] The phrase used in the jurisprudence under section 10(b) is that the accused must have “knowledge of the extent of his jeopardy”. This comes to us from R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138. It is clear from the cases, that the Supreme Court of Canada, when referring to “Jeopardy” in Black was referring to the seriousness of the charge, not the seriousness of the penalty. Wilson, J. at page 152 – 153, referred to the fact that the accused must have or must be given “the reason for his quote arrest”, and that his 10(b) rights arise because of his detention. The reason for this is that the accused must be given enough information, in substance, in all the circumstances, sufficient to allow him to make a reasonable decision to exercise his right to counsel. At paragraph 42, the court in Evans, supra, commenting on Black, refers to getting the accused sufficient information to determine the seriousness of the crime. The cases deal only with a) the change to “a more serious crime”, b) “a fundamental and discrete change” in the purpose of the investigation or detention, or c) a change to a different and unrelated offense or significantly more serious offense than the one contemplated at the time of the arrest and initial warning and caution: see Evans, supra, para.s 30, 42 to 43.

[77] I was not presented with, nor could I find any jurisprudence which supported the contention advanced by Mr. Sharifpouran that “Jeopardy” includes not only the nature and seriousness of the charge, but the seriousness of the penalty. Given that the penalty is dependent on the circumstances and on the findings at trial, as well as matters not put before the trial court, and since sense is highly individualistic, and the potential penalty should have nothing to do the jeopardy that the accused faces.

[78] Since none of the circumstances exist as it itemized in Sinclair, the accused’s right to another consult with counsel was not triggered.

S. 24(2) Charter

[79] In the event that I am incorrect regarding no breach of Mr. Sharifpouran’s right to counsel, I address section 24(2) of the Charter. Under the analysis in R. v. Grant, 2009 SCC 32, I am required to consider all of the circumstances in determining whether admitting the statements would bring the ministries of justice into disrepute. The criteria set out in Grant are a) the seriousness of the Charter-infringing conduct; b) the impact of the Charter-protected interests of the accused; and c) society’s interest in the adjudication of the matter on the merits.

[80] In this matter, if there is Charter-infringing state conduct, it is in the failure to provide for a second or subsequent right to contact counsel. In this case, there is no evidence of any lack of good faith on the part of the police. While the right to counsel and a very important and fundamental right, any breach of it was minor. By the time Mr. Sharifpouran was at the RCMP detachment, he was cautioned as to his right to silence, and given his right to counsel, which he exercised. He understood his rights. Any breach of 10(b) was not intentional or malicious.

[81] For the same reason, the impact of the Charter-protected interest on Mr. Sharifpouran is relatively modest.

[82] Finally, the right of society in adjudication of the matter on the merits is an important one given the enormity of the use of illegal drugs and the damage that such use causes.

Trimble J.

Released: August 9, 2017

CITATION: R v. Sharifpouran, 2017 ONSC 4804

COURT FILE NO.: CR-16-1810-00

DATE: 2017 08 09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and –

GHOLAMREZA SHARIFPOURAN

Voir Dire Ruling Re: Admissibility

TRIMBLE J.

Released: August 9, 2017

[^1]: Words located between ”*” are words spoken in English. An underlined portion with no text above the underline indicates an inaudible or unintelligible word or phrase.