R. v. Mossaddad, 2017 ONSC 5509

CITATION: R. v. Mossaddad, 2017 ONSC 5509

COURT FILE NO.: CR-15-00008691

DATE: 20170919

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CAMERON ALEXANDER MOSSADDAD

Defendant

Mr. Brian McCallion, for the Crown

Mr. Daniel Brodsky, for the Defendant

HEARD: July 31, August 1, 2, 3, 4, 2017

PUBLICATION RESTRICTION NOTICE

Information contained herein is prohibited from publication, broadcasting or other transmittal of evidence at the preliminary inquiry pursuant to Section 539 of the Criminal Code of Canada.

REASONS REGARDING VOLUNTARINESS

EDWARDS J.:

[1] Shortly after 5:00 a.m. on May 23, 2015, Mr. Mossaddad presented at the Emergency Department of Mackenzie Health Centre (“Hospital”) in Richmond Hill. Mariana Suciu was the triage nurse who made initial contact with Mr. Mossaddad. Ms. Suciu took a history from Mr. Mossaddad that he had been assaulted. When asked by Ms. Suciu who had assaulted him, Mr. Mossaddad informed her that his grandmother had assaulted him with a knife for reasons related to the volume of the television.

[2] Ms. Suciu inquired of Mr. Mossaddad as to the nature of his injuries and observed a two centimetre cut on the side of his neck and a three centimetre cut on his right arm. Neither of the cuts were bleeding.

[3] As to Mr. Mossaddad’s demeanour, Ms. Suciu indicated that he appeared serious and upset but was speaking in full sentences. He was coherent and did not appear to be on any drugs or alcohol. There was no decreased level of awareness.

[4] When Ms. Suciu attempted to measure Mr. Mossaddad’s blood pressure he “jumped”, which apparently was as a result of her touching his arm. Ms. Suciu observed what she described as a “bite mark” on his arm. The bite mark appeared to be approximately five centimetres near his armpit.

[5] After Mr. Mossaddad jumped he became agitated and Ms. Suciu enquired as to whether or not he wished the police to be involved to which he indicated, yes.

[6] The entire encounter between Ms. Suciu and Mr. Mossaddad occurred over a relatively brief period time, estimated to be “minutes”.

[7] The next medical personnel to be involved with Mr. Mossaddad was Debbie Hunt, the charge nurse who was on duty on May 23, 2015. She overheard the conversation between Mr. Mossaddad and Ms. Suciu and was concerned as to whether she needed assistance. Ms. Hunt did what she described as a quick assessment and inquired as to whether the police should be called and received a response from Mr. Mossaddad that, yes, the police should be called.

[8] Ms. Hunt then went to another area of the hospital where she knew police officers were located dealing with an unrelated matter. After making inquiries Ms. Hunt testified that she was told by the police officer to inquire of the patient; i.e. Mr. Mossaddad, as to where the assault took place. Ms. Hunt went back to speak with Mr. Mossaddad, who gave an address on Baif Boulevard. She could not recall the exact address. Ms. Hunt then went back to the police officer and provided the information about the address.

[9] As far as Ms. Hunt’s interaction with Mr. Mossaddad, she stated that he responded appropriately to questions and understood what was going on around him. She described him as alert. She acknowledged that her involvement with him was very brief, less than five minutes. She did not ask Mr. Mossaddad as to who had assaulted him.

[10] After Mr. Mossaddad had been seen by the triage nurse, he was then placed in the care of Michelle Duong who was a registered nurse in the Emergency Department on May 23, 2015. She testified that Mr. Mossaddad was escorted into what she described as the yellow zone of the Emergency Department by three police officers. She stated that Mr. Mossaddad appeared slightly anxious and crying. She took a history from Mr. Mossaddad that he said he was in “shock”. Ms. Duong confirmed that a medical diagnosis of shock could be life-threatening, and that the use of the word shock by Mr. Mossaddad did not accord with that medical diagnosis.

[11] Ms. Duong did an assessment of Mr. Mossaddad and concluded that he was mentally coherent. He was not in any distress. She observed the same injuries as had been observed by Ms. Suciu and noted that none of the wounds were actively bleeding.

[12] Ms. Duong stated that Mr. Mossaddad was very cooperative; he was alert and oriented; and was aware of his surroundings. He was coherent.

[13] Having assessed Mr. Mossaddad, he was then seen by the doctor on duty who sutured his cuts. He was also prescribed an antibiotic. He was ultimately discharged at 7:15 a.m. in the company of the police officers.

[14] In response to questions about whether she heard any threats by the police or any promises, Ms. Duong testified that to her knowledge there were no such threats and she did not hear the police raise their voices. She acknowledged that the police were speaking to him but they were not speaking loud enough that she could actually hear the conversation. She stated that it appeared to be a “normal conversation”. She did not hear any conversation about Mr. Mossaddad wanting to speak to a lawyer.

[15] Police Constable Chris Case (“Case”) testified with respect to his interaction with Mr. Mossaddad outside the hospital shortly after 5:00 a.m. Prior to his arrival at the hospital, Case had received information from a police dispatcher that someone had approached a nurse in the Emergency Department complaining of stab wounds. Case, therefore, treated his interaction with Mr. Mossaddad as dealing with a victim as opposed to an accused.

[16] When Case spoke to Mr. Mossaddad, he identified himself as Cameron Blackwood. As the evidence unfolded it became apparent that Blackwood was his mother’s maiden name. I will refer to Blackwood and Mossaddad interchangeably in these Reasons. Blackwood advised Case that he had been attacked by his grandmother, Herma Parkes (“Parkes”), and that she had attacked him with a knife because of the volume on the television Blackwood was watching. Case observed multiple cuts and scrapes on his upper torso, particularly in the area of his arms, as well as a bite mark on his bicep. Blackwood further advised Case that in the altercation he attempted to get the knife from his grandmother. When Case questioned Blackwood as to the grandmother’s condition, Blackwood indicated that he choked her with his legs and that she was unconscious. He was not sure if she was breathing. With this information, Case contacted Sergeant Blair Steer (“Steer”) to update him on the information that he received from Blackwood. Ultimately, Steer attended the hospital at 6:46 a.m. and advised Mr. Mossaddad that he was under arrest for murder.

[17] In describing the interaction between himself and Mr. Mossaddad, Case indicated that Mr. Mossaddad answered his questions in a fashion similar to the interchange between counsel in the courtroom. He described him as calm. He denied that there were any threats, promises, inducements, or anything that would have impacted on the voluntariness of the statements made by Mr. Mossaddad.

[18] In cross-examination, Case was questioned as to why he did not record the statement made by Mr. Mossaddad. In that regard, the police car driven by Case did have the ability to take an audio/visual statement. Case stated that he did not ask Mr. Mossaddad to return with him to the patrol car to get an audio statement because he was treating Mr. Mossaddad as a victim and, in any case, he was at a hospital for treatment and his health and injuries had to be dealt with first. It was not practical to get Mr. Mossaddad into the police car to take his statement. Throughout the time period that Case dealt with Mr. Mossaddad up until he was arrested for murder, he was treating Mr. Mossaddad as a victim and not as a suspect or an accused. When he initially approached Mr. Mossaddad outside the hospital and engaged Mr. Mossaddad in conversation, he did so to find out what had happened. He acknowledged in cross-examination that his notes reflected the “gist” of what Mr. Mossaddad told him and was not a verbatim statement.

[19] Police Constable Supina (“Supina”) testified with respect to his interaction with Mr. Mossaddad at the hospital. Like Case, he had been dispatched shortly after 5:00 a.m. with information that a male individual had walked into the hospital complaining that he had been stabbed and wanted to speak to the police. When he arrived at the hospital he saw Case and Steer outside engaged in conversation with a male individual, who he subsequently discovered was Mr. Mossaddad. He described Mr. Mossaddad as agitated and seemed a little scared, which he took as being common for a stabbing victim. After the conversation outside the hospital, Supina testified that he spoke with Mr. Mossaddad in the Emergency Department to clarify what had occurred. He was told that there was an argument between Mr. Mossaddad and his grandmother over the volume of the television, an argument that lasted 7 to 10 minutes. He stated that he was told by Mr. Mossaddad that the grandmother called Mr. Mossaddad into her room. He stated that Mr. Mossaddad told him that the grandmother had a black knife and that she threw him to the ground, swinging the knife, and bit him. Mr. Mossaddad further advised Supina that he got up and saw blood on the grandmother’s face and left.

[20] Supina further testified that as he was waiting for the doctor to treat Mr. Mossaddad, he clarified Mr. Mossaddad’s story. Mr. Mossaddad told him that the argument began at around 3:30 a.m. and ended at around 3:45 a.m. Enquiries were made by Supina about the grandmother’s state of mental health, and in response he was told by Mr. Mossaddad that his grandmother had called him a “devil” as he was not a Jehovah’s Witness.

[21] In further response to questions put to him by Supina, Mr. Mossaddad told him that he was watching Jersey Shore on television when the altercation occurred. Supina confirmed that Mr. Mossaddad was arrested by Steer at approximately 6:46 a.m., and that he was placed into custody at that time. Steer read Mr. Mossaddad his rights to counsel and the primary and secondary caution. This was confirmed in audio evidence, Exhibit 3, which while not actually containing the rights to counsel and caution, confirmed on the audio that Mr. Mossaddad had been given his rights to counsel and caution. Supina testified that there were no threats, inducements, or anything that would have impacted on the voluntariness of Mr. Mossaddad’s statement throughout his interaction with Mr. Mossaddad.

[22] In response to questions in cross-examination as to why the interaction with Mr. Mossaddad was not audio or video recorded given a recorder was available in the police car, Supina testified that he was treating Mr. Mossaddad as a victim based on information that he had received from the police dispatcher that he had been attacked by someone who may have had a mental illness. He also confirmed that to his knowledge, the policy of the York Regional Police was not to audio/visually record an interview in a situation where a witness might become a suspect and had not been given the opportunity to speak to counsel. As well, he testified that he did not take Mr. Mossaddad to his police car to take a statement as Mr. Mossaddad was still being treated in the hospital and was, until he was arrested, being treated as a victim.

[23] Steer testified on the voir dire that he responded to a dispatch call to attend at Mackenzie Health Hospital to deal with a person who was complaining of having been injured. He testified that he saw a male individual at the front of the hospital and began speaking to this individual, who was later identified as Mr. Mossaddad. He testified that Supina and Case arrived shortly after his arrival at the hospital and provided assistance.

[24] Steer stated that he inquired of Mr. Mossaddad as to what had occurred and received an explanation that he had been in a fight with his grandmother and sustained injuries, including a bite, during the course of a fight. Steer testified that he observed blood stains on the grey hoodie and track pants being worn by Mr. Mossaddad. This evidence is inconsistent with the evidence of both Supina and Case, who indicated that when they dealt with Mr. Mossaddad he was wearing a red shirt. This, in fact, is what is shown in subsequent video when he is paraded at the local police station.

[25] After the discussion outside of the hospital Steer testified that they returned to the Emergency Department, in the yellow zone, where Mr. Mossaddad was seen by nursing staff. At this point Steer returned to the local police station, leaving Mr. Mossaddad in the company of Case and Supina. Steer testified they were dealing with Mr. Mossaddad as if he was a victim who had presented with injuries that looked like stab wounds, as well as a bite. He did not know at this point the state of the grandmother, and asked Case to contact Parkes as there was a concern for her safety and what had occurred.

[26] At approximately 5:45 a.m., Steer received information that there was no answer in response to telephone inquiries made of the telephone number that they had for the grandmother, either through information provided by Mr. Mossaddad or based on the police system. A request was then made for police to attend at the grandmother’s residence to attend on her wellbeing. At approximately 6:20 a.m., Steer received a telephone call from Case advising that Mr. Mossaddad had informed him that the grandmother was last seen unconscious. Steer then required police officers to check on the grandmother, and at 6:38 a.m. he was advised that she was vital signs absent. At 6:45 a.m. Steer attended the hospital and arrested Mr. Mossaddad for murder and read him his rights to counsel, and both the primary and secondary cautions.

[27] In cross-examination, Steer was asked as to whether the police had any policy about taking a statement from a victim before obtaining medical attention. In that regard, Steer testified that it was his call to ensure that Mr. Mossaddad got medical treatment first. He stated that he had anticipated there may have been an occasion to take a video statement from Mr. Mossaddad in his capacity as a victim subsequent to his attendance at the hospital, but not at the hospital itself.

[28] Steer was asked as to whether Mr. Mossaddad was ever given the option not to speak with the police. In response, Steer indicated that he was not given that option as he was still a victim. He was only arrested when information was received that the grandmother had died.

[29] Sergeant Sara Butterworth (“Butterworth”) was the Acting Staff Sergeant at #2 District, York Regional Police Station, on May 23, 2017. A video, Exhibit 4, shows the complete booking of Mr. Mossaddad. The video, however, does not have any audio. Butterworth testified that the video shows her standing in front of Mr. Mossaddad, who was sitting on a bench in the booking room. Butterworth testified that she read Mr. Mossaddad his rights to counsel from a placard which is placed on the front of the booking desk. She testified that she wanted to make sure that Mr. Mossaddad understood his rights. She testified that he was alert and coherent and that he understood his rights.

[30] From her notes, Butterworth stated that Mr. Mossaddad indicated to her that he was not sure whether he needed the assistance of duty counsel. As the evidence on the voir dire unfolded Mr. Mossaddad, in fact, did exercise his rights to speak to duty counsel, which occurred at approximately 8:25 a.m.

[31] Video evidence was introduced as Exhibit 4 showing Mr. Mossaddad in the company of Case and Steer, being taken into a private room at approximately 8:37 a.m. Supina testified that he was placed in this room to allow Mr. Mossaddad to speak to duty counsel, who he identified as Bill Pye. Mr. Mossaddad is shown leaving the room where he purportedly had the telephone conversation with duty counsel at approximately 8:45 a.m.

[32] Butterworth testified that part of the conversation that she had with Mr. Mossaddad involved the fact that he had just returned from hospital and had been treated in connection with various injuries, which to her observation included a bite mark on his left arm as well as scratches on his chest, left arm, neck and face. Butterworth also received information that he suffered from asthma and had a puffer. She arranged for a meal to be provided to Mr. Mossaddad at around 8:00 a.m., which was given to him in his cell at around 8:20 a.m.

[33] Butterworth was involved in transporting Mr. Mossaddad from his cell to the interview room, where a statement was taken from Mr. Mossaddad beginning at around 12:30 p.m. Butterworth arranged for a second meal to be provided to Mr. Mossaddad at around 1:40 p.m.

[34] In cross-examination Butterworth stated that if she had any concern that Mr. Mossaddad was mentally distressed or suicidal, she would have had to deal with the situation and make a decision. There was nothing, however, in his presentation that caused her to think that he was suicidal.

[35] Detective Joseph Amato-Gauci (“Gauci”) had his first contact with Mr. Mossaddad at around 12:28 p.m. when he attended at his cell with Butterworth. The interaction between Gauci and Mr. Mossaddad is reflected in an audio recording that became an exhibit on the voir dire. He, along with Butterworth, escorted Mr. Mossaddad to the interview room where he confirmed with Mr. Mossaddad that he had been charged with murder and read him the secondary police caution.

[36] The first part of the interview video demonstrates the interaction between Mr. Mossaddad and two police officers who take photographs of the various parts of his body that appear to have been injured. These two police officers were dressed in white protective clothing, or what some might call a “hazmat” suit, apparently to ensure that there was no transfer of bodily substances between the police officers and Mr. Mossaddad. Throughout the course of this interaction, as the photographs were being taken, the video demonstrates that Mr. Mossaddad was treated with respect and he is referred to as either “Cameron” or “sir”. Whenever he is asked to move so that photographs could be taken the police officers used the word “please”, and at that point in the video - when photographs were to be taken of his lower torso, the video is turned off for “privacy” reasons. The audio, however, remains on.

[37] It is apparent during the photographing, that Mr. Mossaddad appears to have made inquiries as to whether he had to submit to this processing given the advice that he had received from duty counsel. Mr. Mossaddad was told by Gauci that he had to submit to the photographs, but he would not have to provide any bodily substance or provide a DNA sample.

[38] It is also worth noting that at the point in time when the police required the swabbing of the area where bandages had been applied at the hospital, arrangements were made to have paramedics attend for the removal of the bandages.

[39] On more than one occasion during the course of the interview Mr. Mossaddad was offered food, which he ultimately received and consumed. He was also provided water. During the interview, Mr. Mossaddad complained of being cold and he was subsequently provided with a blanket that he used to wrap himself in.

[40] After the photographs and swabbing had taken place, Gauci asks Mr. Mossaddad whether he understood that he had been charged with murder and whether he was satisfied with the legal advice that he had received. At this point in time, the video demonstrates that Mr. Mossaddad became quite emotional and cries. The video appears to show Gauci trying to console Mr. Mossaddad by touching his shoulder, at which point the interview moves from a discussion about the charge of murder to obtaining a family history from Mr. Mossaddad. During this part of the interview, while Gauci is obtaining Mr. Mossaddad’s family history, the video demonstrates that Mr. Mossaddad had little difficulty in giving a significant amount of detail about his family. There was also a discussion between Gauci and Mr. Mossaddad about computers, and Mr. Mossaddad’s opinion as to the best type of computer that Gauci should consider purchasing. During this conversation, Mr. Mossaddad reveals that he has a laptop that is not password protected and invited Gauci to have access to it. He also gave Gauci the password to his cell phone and gave Gauci permission to access that as well.

[41] During the course of the interview, and in addition to providing food and water as well as the blanket, Gauci offered Mr. Mossaddad the use of a washroom. During the interview Mr. Mossaddad is taken from the interview room to use the washroom.

[42] The dialogue that takes place between Mr. Mossaddad and Gauci as it relates to his family history, the use of computers and other information unrelated to the alleged murder, can only best be described as typical of a dialogue back-and-forth between two individuals. Gauci is soft-spoken and calm and Mr. Mossaddad is quite direct in his answers.

[43] Approximately half-way through the interview, Mr. Mossaddad gives a description of what happened on the evening in question. Initially, his description of the interaction between himself and his grandmother is with very little emotion. It is only when Mr. Mossaddad begins to refer to the discussion with his grandmother, when his grandmother refers to him as Satan, that Mr. Mossaddad become emotional and presented with having difficulty dealing with the situation. At this point, the video shows Gauci moving closer to Mr. Mossaddad in what might best be described as an effort to comfort him.

[44] In the interview Mr. Mossaddad indicates that his grandmother had gone to bed at approximately 12:00 a.m. and he began watching some television, specifically, Jersey Shore. He believes that he watched a number of episodes until approximately 3:30 to 4:00 a.m. when his grandmother, apparently agitated because of the volume of the television, asked Mr. Mossaddad to come into her bedroom. He indicates in his statement that he observed his grandmother going into a drawer and obtaining a knife, that he described as looking like a steak knife. He indicated that he did not know how to physically explain the situation. As Mr. Mossaddad explains what happens, Gauci confronts Mr. Mossaddad with the implausibility of the story and suggests to Mr. Mossaddad that now is the opportunity for him to tell him what really happened. Gauci suggested to Mr. Mossaddad that he in fact bit himself, not his grandmother. Gauci asks Mr. Mossaddad how he got the various cuts on his body, to which Mr. Mossaddad indicates that his grandmother cut him as he was trying to protect his life.

[45] Towards the end of the interview, Gauci appeals to Mr. Mossaddad’s good character and good morals and the fact that his grandmother had cared for him and made dinner the evening when the altercation occurred. In response, Mr. Mossaddad indicated that his grandmother did not love him because he was his “mom’s child”. In this discussion, Mr. Mossaddad presents on the video as being completely emotionless. Gauci again confronts Mr. Mossaddad with a suggestion that he could not imagine why a grandmother would pull a knife on someone that she loved. He further confronted Mr. Mossaddad with two scenarios, the first being a cold-blooded young man who would kill his grandmother, and the second being someone who simply snapped. Gauci suggested to Mr. Mossaddad that nothing that he said made any sense, and that Mr. Mossaddad simply only cared about himself. During this part of the video, Mr. Mossaddad presents with his head down and provided little to any verbal emotion. Gauci then confronts Mr. Mossaddad with what will happen to his grandmother during an autopsy. Mr. Mossaddad presented with little to any emotion. It was at this point that he asked for a blanket. Gauci inquires of Mr. Mossaddad as to whether he is the “cold-blooded Cameron”. At this point Mr. Mossaddad puts his hands over his head, and shortly thereafter asked to return to his cell. He repeats his request to go to his cell on a number of occasions and Gauci continues to confront him with the police theory of what happened. Gauci continued with the theme of suggesting to Mr. Mossaddad that now was his time to say sorry to the people that he loved.

[46] In cross-examination, Gauci was asked as to whether or not the York Regional Police had any policy with respect to handheld audio recorders being used to take a statement from a potential witness or accused. Gauci indicated that he was unaware of any such policy.

[47] Gauci was also cross-examined with respect to the information that he had going into the interview. Specifically, he was questioned about whether any background checks were conducted of Mr. Mossaddad or Cameron Blackwood. Blackwood was his mother’s maiden name. Gauci confirmed that he had information about Mr. Mossaddad’s prior involvement with police authorities. This included an occurrence at Pearson International Airport in September 2014. On that occasion, Mr. Mossaddad apparently had reported to a Peel Regional Police Officer attending that he thought that he was being followed. As to whether this information would have impacted the manner in which he conducted the interview with Mr. Mossaddad, Gauci testified that he was not sure whether he had that information before or after the interview. Gauci was cross-examined about an occurrence on September 26, 2014 at the University of Waterloo, when Mr. Mossaddad apparently had forwarded information about his life being threatened. Gauci stated that he was not sure whether he had this information before or after the interview. Regardless, in cross-examination Gauci stated that he had no reason whatsoever to believe that Mr. Mossaddad had any mental health issues.

[48] Gauci confirmed in cross-examination that when he initially spoke to Mr. Mossaddad he did not specifically indicate to him that he had the right to remain silent, and offered as an explanation the fact that Mr. Mossaddad had already been given his Charter rights and had spoken with duty counsel. Mr. Mossaddad had confirmed that he had received advice from duty counsel not to answer police questions.

[49] In cross-examination, Gauci was told that Mr. Mossaddad had asserted that the videotape of the interview had been tampered with. Gauci testified that he was not aware of this.

Position of the Crown

[50] While Crown counsel is not seeking to admit as evidence the statements given by Mr. Mossaddad to the various nurses at the hospital, the Crown does seek to put into evidence Mr. Mossaddad’s statements to Police Officers Case, Steer and Supina, as well as the video statement given to Gauci.

[51] As far as Mr. Mossaddad’s statements given to the police officers at the hospital, Crown counsel argues that this has to be contextually analyzed from the perspective that Mr. Mossaddad attended the hospital voluntarily, and that he provided his story to the various nurses, as well as the police officers, at a point in time when he was being treated as a patient or victim as opposed to being treated as a possible suspect. Mr. Mossaddad agreed, in response to questions put to him by at least two of the nurses that he wanted to speak to the police, and that he gave to the police officers at the hospital the same statement that he gave to the nurses; i.e. that he had been attacked by his grandmother who had stabbed him.

[52] Analyzing the evidence of the police officers at the hospital, Crown counsel argues that the evidence demonstrates that Mr. Mossaddad was cooperative and forthcoming, and that there was no evidence of any threats, inducements, or anything else that would impact on the voluntariness and spontaneity of the statements that he gave at the hospital to the police officers who spoke to him there.

[53] It was not until the police had information with respect to the medical condition of the grandmother that Mr. Mossaddad went from being a victim to a possible suspect. Once Steer had information that the grandmother was deceased, he arrested Mr. Mossaddad and gave him his rights to counsel as well as the primary and secondary cautions. In addition to receiving his rights to counsel from Steer, Butterworth also testified that she read Mr. Mossaddad his rights to counsel from the placard on the front of the booking desk, and when asked as to whether she believed he understood his rights, Butterworth indicated that Mr. Mossaddad responded by indicating that he would willingly answer the investigator’s questions.

[54] Crown counsel refers to confirmatory evidence from the video that demonstrates that Mr. Mossaddad wanted to provide a voluntary statement, but noted in the initial stages of the interview that this conflicted with the advice that he had received from duty counsel. It is argued that Mr. Mossaddad’s own words demonstrate that he had received his rights to counsel; had spoken to duty counsel; and that he understood the advice that he had received, i.e. to remain silent. Despite this advice, it is argued Mr. Mossaddad demonstrated his desire to provide answers to questions put to him.

[55] As for the actual video itself, Crown counsel argues that it was not conducted in an oppressive atmosphere, and while there were occasions when Mr. Mossaddad may have indicated that he was scared, the fact that he was scared does not detract from the voluntary nature of his statement. The fear expressed by Mr. Mossaddad had nothing to do with any police misconduct; rather, it was a reflection of the fact that he knew that he had been found out.

[56] Fundamentally, Crown counsel argues that Mr. Mossaddad made a conscious choice to not remain silent and to provide the information contained in the video statement. It is argued that Mr. Mossaddad’s intent from the very beginning was always to provide information to the police about the altercation, and that this was his choice from the beginning to the end. The statement reveals that Mr. Mossaddad had an operating mind; that he was a bright, intelligent, university educated individual; and that there was no evidence of any police trickery, threats, oppressive conduct, or anything else that would call into question the voluntary nature of his statement.

Position of the Defence

[57] Dealing first of all with the statements given to the police officers at the hospital, Mr. Brodsky calls into question the accuracy of those statements given that they are not recorded either by audio or video. Mr. Brodsky correctly points to the fact that the police cars that were in close proximity to the Emergency Department were equipped with audio/video recording capability, and that the evidence demonstrates that the police officers at the hospital appear to have given no thought as to whether Mr. Mossaddad’s statement should have been audio/video recorded in the police car. In this regard, Mr. Brodsky relies on R. v. Moore-McFarlane, 2001 CanLII 6363 (ONCA), 56 OR (3d) 737; [2001] O.J. No. 4646, to suggest that the Crown has not met its heavy onus in establishing the voluntariness and accuracy of Mr. Mossaddad’s statements at the hospital.

[58] As for his video recorded statement, Mr. Brodsky notes that at points Mr. Mossaddad comments on his injuries; that he was cold; and that he expressed fear. He also is shown crying and had previously complained that he was in shock. The video does not demonstrate any concern on the part of Gauci with respect to why Mr. Mossaddad might have been afraid, or why he was in shock.

[59] Mr. Brodsky suggested that the police officers who interacted with Mr. Mossaddad should have had concerns with respect to a “hidden mental defect”, and that they should have more fully investigated his mental health.

[60] As for the accuracy of Mr. Mossaddad’s statements at the hospital, Mr. Brodsky relies on R. v. Barrett, 1993 CanLII 3426 (ONCA); 13 O.R. (3d) 587; [1993] O.J. No. 1317, and notes that the statements were not recorded by the police officers as verbatim statements, but rather as the “gist” of what Mr. Mossaddad told them about what occurred between himself and his grandmother. Mr. Brodsky rhetorically asked the question, therefore, as to whether or not the statements at the hospital are accurate and reliable. Mr. Brodsky also notes that Mr. Mossaddad was never given an opportunity at the hospital to verify the accuracy of his statements recorded by the various police officers in their notebooks.

Analysis

Statements to the Police at the Hospital

[61] When Mr. Mossaddad attended at the hospital on May 23, 2015 he did so, on all accounts, for the purpose of obtaining treatment for injuries that occurred when he was stabbed. The circumstances of the stabbing were only explored by the police after Mr. Mossaddad had informed the triage nurse, Ms. Suciu, that he wanted police involvement.

[62] When the police did become involved, they had no reason to believe that Mr. Mossaddad was anything other than a victim of a stabbing. The three police officers who engaged Mr. Mossaddad in a discussion concerning the circumstances of the stabbing, specifically Case, Supina and Steer, all made clear in their evidence on the voir dire that they were treating Mr. Mossaddad as a victim and not as a suspect. As such, in my view, there was no requirement on the part of any of these police officers to have cautioned Mr. Mossaddad or provided him with his Charter rights. When Mr. Mossaddad moved from being a victim to a suspect in the eyes of the police, he was provided with the appropriate Charter rights.

[63] The real issue, as it relates to the statements provided by Mr. Mossaddad to Officers Case, Supina and Steer, relates to the reliability of the statement attributed to Mr. Mossaddad. While it was open to any, or all of the officers to have directed Mr. Mossaddad to one or other of the various police cruisers in the vicinity of the hospital where his statement could have been video recorded, the fact still remains that Mr. Mossaddad was at the hospital primarily for treatment of his injuries. One could only speculate as to the criticism that might have been levelled at these officers if they had insisted on Mr. Mossaddad attending in a police cruiser to provide a video statement, as opposed to ensuring that he obtained whatever medical treatment was deemed necessary by the medical personnel at the hospital.

[64] At least one of the police officers, specifically Case, acknowledged that the statement reflected in his voir dire evidence was not a verbatim statement but was the “gist of what Mr. Mossaddad had told him”. There is nothing in the evidence of any of the police officers who testified on the voir dire that the statements attributed to Mr. Mossaddad at the hospital were provided in anything other than a question/answer context and, more specifically, in the context of Mr. Mossaddad providing information to the police about an alleged stabbing that Mr. Mossaddad had been a victim of. As to whether the statements testified to by the police reflect what was actually said by Mr. Mossaddad, is a question of the reliability of their evidence. That is a function of the trier of fact. At this threshold stage, I am satisfied that the statements made by Mr. Mossaddad at the hospital to the officers are sufficiently reliable that they should be deemed admissible at trial. The jury may ultimately have to be instructed on the weight to be given to the statements that may reflect any concerns arising out of the reliability of the evidence provided at trial. The statements made by Mossaddad to Case, Steer and Supina, are ruled admissible at trial.

The Video Statement

[65] The admissibility of the video statement engages an analysis of the confessions rule, which focuses on both reliability and voluntariness. The Court is required to consider both questions relating to whether there was any evidence of a threat or inducement held out to the accused, but must also consider whether Mr. Mossaddad had an operating mind and made the statement in circumstances that make clear it was provided free of oppression.

[66] The Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, provided a useful summary of the guidelines that trial judges should use in determining whether an accused’s statement has been proven voluntary beyond a reasonable doubt. It is common ground that voluntariness must be assessed both contextually and broadly. The Crown has the obligation of proving the voluntariness of Mr. Mossaddad’s statement beyond a reasonable doubt, and in that regard I must be satisfied that there were no inducements, threats, tricks, oppression, and/or deprivation of an operating mind on the part of Mr. Mossaddad at the time when he was interviewed and gave his video statement to Gauci.

[67] I have come to the conclusion that there is more than adequate evidence to establish that Mr. Mossaddad’s video statement was a voluntary statement. Prior to giving the statement he had been advised by not one, but at least two police officers - specifically, Steer and Butterworth of his Charter rights. He was given the opportunity and did speak to duty counsel between 8:37 a.m. and 8:43 a.m. It is clear from the video statement when he is asked various questions, that he understood the advice that he had received from duty counsel not to engage in any discussion with the police. Mr. Mossaddad chose to ignore that advice. It was a conscious choice on his part not to remain silent, and to provide Gauci with the statement that he did.

[68] The video evidence makes clear that Mr. Mossaddad was treated with courtesy. The process was explained to him in relation to what would take place at the commencement of the interview. The police officers, in what I have described as hazmat suits, treated Mr. Mossaddad with courtesy.

[69] Mr. Mossaddad was provided with not one, but two meals. He was provided with a blanket when he requested one because he was cold. When a swab was necessitated of an area of his body that had been bandaged at the hospital, arrangements were made for paramedics to remove that bandage and again, Mr. Mossaddad was treated with respect and a concern that if he needed further medical treatment he could request it.

[70] There simply is no evidentiary record before me that would suggest that anything that Mr. Mossaddad said in the video statement was precipitated as a result of any inducement, threat, trick, oppression, or any deprivation of his operating mind. There was no pressure nor any trickery on the part of any of the police officers – and specifically Gauci, at the time leading up to and the actual taking of the video statement. The Ruling from this voir dire is that the video statement is voluntary and admissible at Mr. Mossaddad’s trial. There was no Charter infringement, suggested by Mr. Brodsky, that would lead to the excluding of the video statement.

The Derived Confession Rule

[71] Mr. Brodsky, in his argument, suggested that the video statement should be excluded on the basis of his argument that the earlier statements made by Mr. Mossaddad at the hospital to the police were involuntary and rendered the video statement inadmissible.

[72] While Mr. Brodsky did not refer me to any case law in support of this proposition, I rely on a decision of the Court of Appeal in R. v. Manchulenko, 2013 ONCA 543, as accurately reflecting how trial judges are to deal with the application of the so-called derived confession rule. Watt J.A. at para. 67 sets forth this rule as follows:

Sometimes, something of evidentiary value, considered alone, does not appear to fall foul of any admissibility rule. Nevertheless, the evidence, for example a confession of crime, may be sufficiently connected to an earlier involuntary (hence inadmissible) confession that it is considered involuntary by this association: R. v. T. (S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 28. The derived confessions rule excludes statements which, despite not being involuntary when considered alone, are sufficiently connected to an earlier involuntary confession to be rendered involuntary and hence inadmissible: T. (S.G.), at para. 28. Each subsequent confession may be involuntary if the tainting features that disqualified the first continued to be present, or if the fact the first statement was made, was a substantial factor contributing to the making of the second or subsequent statement: T. (S.G.), at para. 29; R. v. I. (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, at p. 526. Where the earlier contaminant is a Charter breach, s. 24(2) provides its own formula for exclusion: I. (L.R.) and T. (E.), at p. 532.

[73] I note that the derived confessions rule is not an absolute rule, and at para. 68 Watt J.A. goes on in his Reasons to delineate how an earlier voluntary statement of an accused can be severed and a so-called fresh start occur in relation to a second statement. Specifically, at para. 68, Watt J.A. states:

In some circumstances, conduct by investigators prior to a second statement may sever the link between the original taint and the subsequent statement. In other words, investigators may attempt a “fresh start” in order to insulate the second statement from the taint that rendered the earlier statement inadmissible: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 2-3. Where the antecedent taint is a Charter infringement, a fresh start may clearly sever the subsequent statement from the earlier Charter breach: R. v. Simon, 2008 ONCA 578, 269 O.A.C 259, at para. 69; Wittwer, at para. 3. Ultimately, the sufficiency of the connection between the Charter breach and the subsequent collection of the evidence requires a case-specific factual inquiry to determine whether the post-breach acquired evidence was “obtained in a manner that infringed or denied” any enumerated Charter right of the person charged: Simon, at para. 69.

[74] In this case I am not satisfied, as I have already indicated, that the statements provided by Mr. Mossaddad to Officers Case, Supina and Steer were involuntary. Assuming for the purposes of this discussion that those statements were involuntary and therefore should be excluded, I am of the view that the evidence on this voir dire is such that those statements are sufficiently insulated from the video statement that in this case there was a fresh start rendering the video statement admissible. Specifically, in this case Mr. Mossaddad had his Charter rights and right to counsel repeated to him at the time of his booking. He was provided the opportunity to speak with duty counsel and avail himself of that right. It is clear from the video statement that he understood, from the advice that he was provided by duty counsel, that he had no obligation to respond to any police questioning and that it was his right to remain silent.

[75] In this case, if I had ruled that the earlier statements to the police were involuntary or for some other reason inadmissible, then I am satisfied that invoking the fresh start rule set forth in paras. 68 and 69 of Manchulenko, that the video statement nonetheless was voluntary and, as such, admissible at trial.

Authenticity of the Video Statement

[76] Mr. Mossaddad, in Exhibit A, suggested that the video had been altered and that the entire police investigation revealed a police cover-up. There is nothing from my review of the video evidence, including the booking and the video statement, that would suggest the video evidence had been altered or doctored in any way. No expert evidence was tendered to raise any doubt about the bona fides of the video evidence and audio.

[77] Questions were asked in cross-examination about the continuity of the audio recording as well as the video recording. Gauci testified that he was “absolutely certain” that there had been no tampering with either the audio or the video. In the absence of any evidence suggesting any of the audio or video evidence filed on the voir dire has been tampered with, I can only conclude the events and audio - as depicted, are in fact as they unfolded on May 23, 2015.

[78] Mr. Brodsky, in his submissions, suggested that the statements provided by Mr. Mossaddad at the hospital to Officers Case, Supina and Steer, should be excluded on the basis that they were not reliable because the statements were not video recorded. While Mr. Brodsky did not specifically suggest that there should be both a common law and a constitutional obligation on the police to videotape such statements, I do note that this issue was addressed by the Court of Appeal in R. v. Moore-McFarlane. In that regard, at para. 64, Charron J.A. stated:

I agree that there is no absolute rule requiring the recording of statements. It is clear from the analysis in both Hodgson and Oickle that the inquiry into voluntariness is contextual in nature and that all relevant circumstances must be considered. Iacobucci J. says so expressly in Oickle in the following words (at para. 47, p. 31 S.C.R., p. 345 C.C.C.):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over-and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[79] Dealing specifically with the question of the use of audio and/or video recording, Charron J.A. went on at para. 65 to state:

However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.

[80] In this case, as I have already noted, Mr. Mossaddad was being treated at the hospital for his various presenting injuries. He had requested the involvement of the police. The police had nothing to suggest that Mr. Mossaddad presented as anything other than a victim. He did not become a suspect or potential accused until well after his initial interaction with Officers Case and Supina. While some might suggest that initial interaction with the police at the hospital could have been better handled by requiring Mr. Mossaddad to provide his statement memorialized by way audio/video available in various police cruisers at the hospital, the fact still remains that Mr. Mossaddad’s presentation at the hospital was as a patient/victim. His medical condition was a priority. Ultimately, had Mr. Mossaddad in fact been simply a victim, the police would undoubtedly have obtained a more formal statement from him. In my view the police in this case should not be faulted for their approach of Mr. Mossaddad, and I see no reason why the statements attributed to him by Officers Case, Supina and Steer, should be excluded because those statements were not audio/video recorded. As I have already indicated, it will be for the jury to determine the weight and reliability to be attributed to those statements at the hospital.

Justice M.L. Edwards

Released: September 19, 2017

CITATION: R. v. Mossaddad, 2017 ONSC 5509

COURT FILE NO.: CR-15-00008691

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

CAMERON ALEXANDER MOSSADDAD

Defendant

REASONS REGARDING VOLUNTARINESS

Justice M.L. Edwards

Released: September 19, 2017