CITATION: R v. Arifi, 2017 ONSC 5687

COURT FILE NO.: 14-13141

DATE: 2017/09/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Respondent

– and –

Belinda Arifi

Appellant

Moiz Karimjee for the Respondent

David Anber for the Appellant

HEARD: August 23, 2017

REASONS FOR JUDGMENT

Justice S. Gomery

1On January 27, 2016, following a trial in the Ontario Court of Justice, Belinda Arifi was convicted of fleeing the scene of an accident. She is appealing that conviction.

2At trial, Ms. Arifi’s confession to the arresting officer was the only evidence that she was the driver of the car that left the scene. After the Crown closed its case, the defense argued that Ms. Arifi’s confession was inadmissible and asked for an acquittal. The trial judge rejected the defense’s motion and convicted Ms. Arifi.

3There are two question that I must consider on the appeal :

(1) Did the trial judge commit an error in rejecting the defense motion?

(2) If so, what should this Court do?

4Before considering these questions, I will review the trial proceedings.

Proceedings at trial

[5]

Proceedings at trial

At trial, the Crown called the arresting officer, Alison Kennedy, as a witness. She testified that, on October 31^st, 2014, she received information indicating that Ms. Arifi was the owner of a car that left the scene of a serious collision earlier that day. She went to the apartment where Ms. Arifi was staying and spoke with her. This is Officer’s Kennedy’s description at trial of her exchange with Ms. Arifi:

Q: You, you read her a caution?

A: I did read a caution to her at, uh, 0046 hours.

Q: All right.

A: And she was [sic] responded affirmatively. She said yes.

Q: Okay. And what – did you ask her what happened?

A: I did ask her what happened, and she said, “I just blacked out. I didn’t see the red light”, and then asked, “Are they okay?”

Q: Okay. Now can you tell me whether those utterances are, are your best recollection, verbatim, what, what are they?

A: They are quotes. I’ve written them in quotation marks.

Q. Okay. What did you ask Ms. Arifi after you got the response “Are they okay?”

A. I asked, “Were you the driver?” and she responded “Yes”.

6Officer Kennedy then arrested Ms. Arifi. On the way to the police station, Ms. Arifi again asked about the occupants of the other vehicle. She said she was scared and that was why she did not remain at the scene.

7On cross-examination, defense counsel asked Officer Kennedy to confirm that Ms. Arifi told her what happened right after she had been cautioned. Officer Kennedy confirmed this. Defense counsel also asked whether the officer had observed that Ms. Arifi was impaired at the time of her arrest. Officer Kennedy said she had not.

8This was essentially all of the evidence at trial on the circumstances in which Ms. Arifi confessed to Officer Kennedy that she was the driver of the car. The Crown did not seek a voir dire to establish that the confession was voluntary, nor did it call any other evidence with respect to the confession.

9The judge had heard other evidence on the interaction between Ms. Arifi and Officer Kennedy in the context of a so-called “Soules application” presented by the defense right before the trial. In the Soules application, the defense sought to exclude Ms. Arifi’s statements to Officer Kennedy on the basis that Ms. Arifi believed she had a statutory obligation to identify herself as the driver of the car. After hearing testimony from Ms. Arifi and Officer Kennedy, the judge rejected the Soules application, because he did not find Ms. Arifi’s testimony credible.

10The evidence presented in the context of the Soules application was not part of the evidence at trial, because the defense did not agree to blend the Soules application with the trial. On this appeal, Crown counsel agreed that, in light of this, the evidence on the application could not be relied on by the Crown at trial.

11Following Officer Kennedy’s testimony at trial, the Crown closed its case. Defense counsel then asked for an acquittal. He argued that Ms. Arifi’s statements to Officer Kennedy were inadmissible because the Crown had not proved that she confessed voluntarily. Since there was no other evidence that Ms. Arifi was the driver of the car that fled the scene, the defense took the position that the court must acquit her.

12The trial judge dismissed the defendant’s motion to acquit without hearing any submissions from the Crown. The judge said simply that:

I’m satisfied that there was evidence before this court that made the evidence admissible location (sic) and, in fact, addressed that issue directly. The motion for a non-suit on that issue is dismissed.

Did the trial judge commit an error in rejecting the defense motion and convicting Ms. Arifi?

[13]

Did the trial judge commit an error in rejecting the defense motion and convicting Ms. Arifi?

An accused’s confession – that is, a statement to a person in authority used to establish their guilt – is inadmissible unless the court is satisfied beyond a reasonable doubt that the accused made their statement voluntarily (R. v. Powell, [1977] 1 S.C.R. 363; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3). The court must be persuaded that the accused’s confession was not induced by threats, promises, trickery or coercion, and that the accused was of sound operating mind (Oickle at paras. 68 and 69; Powell at pp. 365-65).

14To determine whether a confession is admissible, the court must hold a voir dire, unless this requirement is formally waived by the defense. The Supreme Court of Canada has rejected the proposition that

“if a trial judge directs himself to the question of the voluntariness of a statement and is satisfied on the whole of the evidence of the guilt of the accused, there is no need for a voir dire” (Powell at p. 367).

15In the voir dire, the Crown must present affirmative evidence to show that the accused’s statements were made voluntarily (Takacs at paras. 10 and 11). It is not good enough for the Crown to point to an absence of any evidence of coercion, threats or promises. The Crown must call evidence to establish the absence of any circumstances showing that the statements were not voluntary.

16At the trial in the case at bar, no voir dire was held on the voluntariness of the accused’s statements to Officer Kennedy. Officer Kennedy’s testimony at trial was brief. She was not asked about any possible coercion, threats or promises during her conversation with Ms. Arifi. Officer Kennedy was asked if Ms. Arifi appeared to be impaired, but not about the presence or absence of any other circumstances that might render her statement involuntary.

17The burden of proving that an accused’s statement was voluntary rests at all times on the Crown (R. v. Takacs, [2004] O.J. No. 3632 at para. 10). It is, in the words of the Supreme Court, a “heavy onus” (Powell, p. 368). If the Crown wants to rely on a confession, it must prove that the confession was freely made. The defense has no obligation to remind the Crown of its obligation, and may wait until the Crown has closed its case to raise the issue for the first time.

18In rejecting the defense motion for non-suit, the trial judge referred to “evidence before the court … that addressed that issue directly”. Given the lack of direct evidence on voluntariness at trial, I infer that he was thinking of the evidence on the pre-trial Soules application. In his decision on the application, after finding that Ms. Arifi’s conduct after the accident was inconsistent with her stated belief that she had to report the accident, the judge said:

In, in addition to that, in my view, the caution that was given by the officer fairly and reasonably, in the circumstances, made it very clear, and it was understood by Ms. Arifi that she did not have to say anything. I don’t accept her bald assertion that she had this legal obligation and duty which caused or compelled her to say anything. I don’t accept the credibility of that statement. In the circumstances, in my view, she was properly cautioned by the officer. She gave her statement freely and voluntarily and not pursuant to any compulsive nature or compulsive requirement and certainly not to any compulsion that she understood at the time. The statement is admissible as indicated for the reasons noted.

19Having reached the conclusion on the Soules application that Ms. Arifi’s statement was made “freely and voluntarily”, it may have seemed obvious to the judge that he should reach the same conclusion in the context of the trial. This was however an error, because the evidence in support of that conclusion was not before him at trial. As noted above, the defense did not agree to blend the evidence on the motion into the trial. The only evidence at trial regarding the circumstances of Ms. Arifi’s confession was Officer Kennedy’s testimony at trial. Officer Kennedy was not examined meaningfully at trial on the circumstances of the confession. Had the judge based his conclusion on the voluntariness of Ms. Arifi’s confession solely on this testimony, his conclusion would have been unreasonable.

20In its argument on this appeal, the Crown suggests that the appeal should fail because the defense did not object to Officer Kennedy’s evidence when she was testifying at trial. This same argument was rejected by the Supreme Court of Canada in Powell. Justice de Grandpré wrote (p. 367) :

The Crown further submits that, the evidence of Constable Fisher having been received without any objection by counsel for the accused, this silence amounts to an admission that the statement was voluntary. … For my part, I do not believe that this submission is well founded. While I might be ready to accept in a proper case that counsel for an accused may well waive the holding of a voir dire, I see a considerable difference between an expressed waiver surrounded by all the precautions indicating that the question has been examined in depth and mere silence on counsel’s part. The heavy onus resting on the Crown certainly cannot be displaced in such an informal fashion.

21Furthermore, the defense did not stay silent at trial. Defense counsel clearly signalled their expectation that the Crown needed to prove voluntariness, notwithstanding the judge’s decision on the Soules application. In response to a question from the Crown about whether he needed to call Officer Kennedy back to the stand, the trial judge noted defense counsel’s position that Officer Kennedy’s testimony for the purpose of the application could not be accepted on the trial. When the judge pressed defense counsel about the need to call the arresting officer back to the stand, defense counsel said that he would ask “just for the sake of consistency” that the Soules application and the trial be kept as “watertight compartments”.

22In these circumstances, the defense clearly did not waive the requirement for the Crown to prove voluntariness, nor should the defense motion for non-suit have come as a surprise.

23Finally, the Crown argued that, while it was not open for the trial judge to rely on the evidence on the Soules application, he could rely on his own findings on the application. There are two problems with this argument. First, in rejecting the motion for non-suit, the trial judge specifically referred to “evidence before this court” that made the confession admissible. He did not rely on his decision on the application but the testimony underlying it. Second, accepting this argument would allow the Crown to circumvent the requirement for evidence of voluntariness at trial, even though the requirement for such evidence was not waived by the defense.

Given the judge’s error, what should this Court do?

[24]

Given the judge’s error, what should this Court do?

Given the Crown’s failure to prove that the accused’s statements to Officer Kennedy were made voluntarily, these statements were inadmissible. There was no other evidence at trial that Ms. Arifi was the driver of the car that left the accident. The Crown therefore failed to prove a central element of its case, and the defense motion for non-suit ought to have been granted.

25The Crown argues that the trial judge’s error was an error of mixed fact and law, and that the conviction was not a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, (the “Code”). It contends that the Crown would have undoubtedly have proved voluntariness, had it taken steps to do so. Ms. Arifi’s Soules application was dismissed because the judge did not believe that she felt legally compelled to confess to Officer Kennedy. The Crown argues that, had a voir dire on voluntariness been held, and had Ms. Arifi testified that her statements to Officer Kennedy were not voluntary, the trial judge would have rejected this testimony as well.

26I do not agree that the only ground of appeal is s. 686(1)(a)(iii) of the Code. Given the absence of evidence (aside from her inadmissible confession) identifying Ms. Arifi as the driver, the conviction was unreasonable and not supported by the evidence, giving rise to an appeal under s. 686(1)(a)(i)) of the Code.

27I have, however, a more fundamental problem with the Crown’s argument. The outcome of a voir dire on voluntariness cannot be inferred based on the judge’s rejection of the Soules application. The focus of the pre-trial application was not voluntariness, but rather Ms. Arifi’s understanding of her legal obligations. The judge’s assessment of her credibility on this point does not mean that he would automatically discount her testimony on other points. We also have no way of knowing what other evidence may have emerged during a voir dire on voluntariness.

28Finally, if I accepted the Crown’s argument, I would be condoning the use of evidence on the Soules application for the purpose of trial. I have concluded that, in rejecting the motion for a directed acquittal, the judge improperly relied on evidence on the pre-trial application. I cannot see how this Court could rely on the same evidence to avoid the consequences of the trial judge’s error.

29Admitting a confession without a voir dire is, in the words of the Supreme Court of Canada, a “fundamental error” (Powell, p. 369). Other than her statements to Officer Kennedy, there was no evidence identifying Ms. Arifi as the driver of the car that left the accident. Convicting Ms. Arifi in the absence of any evidence on a central element of the charge resulted in a miscarriage of justice.

30If the conviction is overturned, the Crown proposes that a new trial be ordered. In the absence of any admissible evidence identifying Ms. Arifi as the driver, however, I see no basis for a retrial. Had the trial judge directed himself appropriately on the motion for non-suit, the charge against Ms. Arifi would have been dismissed. The Crown would not have had a second chance to prove its case. The trial judge’s error should not give the Crown more latitude than it otherwise would have had.

31Ms. Arifi’s appeal is therefore allowed and an acquittal is ordered on the charge of leaving the scene of an accident.