CITATION: R. v. Bharwani, 2017 ONSC 649
DATE: 20170126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMED ADAM BHARWANI
Defendant
J. Rinaldi and M. Bloch, for the Crown
Mohamed Adam Bharwani, acting in person
D. Embry, appearing as amicus curiae
Ruling on Statement Voir Dire
J.D. MCCOMBS J.
[1] Toronto Police Service received a 911 call at 2:18 p.m. on February 2, 2013. The caller told the dispatcher that he wanted to turn himself in and that he had “just killed a girl”.
[2] The caller was the accused, Mohamed Adam Bharwani. Within minutes, police arrived at the address he had provided for a house in the Don Mills area of Toronto, near Seneca College. Mr. Bharwani was waiting at the door and surrendered without resistance when the police officers first arrived.
[3] Police found the body of 23 year-old Nyumnwau Caroline Mkurazhizha in the shower area inside the house. She had been beaten and strangled to death. Her nude body had been covered with a bed sheet.
[4] Mr. Bharwani was initially placed in a police scout car at the scene that was not equipped with a video camera. However, within a few minutes, a scout car arrived that was equipped with a video camera, and police immediately transferred Mr. Bharwani to that scout car so that he could be recorded on video. He was ultimately driven to 33 Division in that scout car with the in-car camera recording the entire process.
[5] Over the ensuing hours, Mr. Bharwani made a series of statements to police. They were recorded on video, with the exception of a brief period when he was being moved from a holding cell to an interview room, during which time he was recorded on audio.
[6] In this case, there is an almost seamless record of police interaction with the accused.
[7] Mr. Bharwani is charged with first-degree murder. He has chosen to represent himself. Mr. Dean Embry was appointed to act as amicus curiae at trial by another judge of this court. Mr. Embry’s assistance has been valuable in ensuring that Mr. Bharwani’s entitlement to a fair trial, in which he is able to make full answer and defence, is protected.
[8] Mr. Bharwani’s statements were the subject of a voir dire to determine their admissibility. On January 18, 2017, after several days of evidence and after hearing full argument, I announced my ruling that the statements tendered by the Crown are admissible in evidence.
Summary of Oral Ruling
[9] I began by emphasizing the court’s responsibility to Mr. Bharwani, as a self-represented person, to ensure that he is made aware of the applicable legal principles; his rights under the Charter, including his right to full disclosure of all relevant evidence; the burden of proof; the arguments available to him; and, when they arise, issues related to the admissibility of evidence.
[10] I indicated that I had allowed Mr. Bharwani wide latitude in examining witnesses and in presenting evidence and argument on the issue of the admissibility of the statements. I also emphasized that amicus had fully participated in the statement voir dire by cross-examining witnesses and making submissions.
[11] I pointed out that when, at the completion of the Crown’s evidence on the voir dire, Mr. Bharwani was asked whether he wished to call evidence or testify on his own behalf, he indicated that he “may” wish to do so.
[12] When Mr. Bharwani was asked whether he had taken any steps to arrange for any witnesses to be available to testify, he indicated that he had not. After hearing from Crown counsel, from amicus, and from Mr. Bharwani, I was satisfied that Mr. Bharwani had been made aware months earlier of his entitlement to call witnesses and/or to testify at the statement voir dire. I indicated that I was also satisfied that the Crown and Mr. Embry had offered to assist Mr. Bharwani to locate and marshall his witnesses. Nevertheless, in order to give Mr. Bharwani one last chance to present evidence, I allowed him several more days to consider whether he wished to call evidence on the voir dire.
[13] In my oral ruling, I noted that on the return date, Mr. Bharwani indicated that he had elected to call no evidence. I was satisfied that, with the assistance of amicus, Mr. Bharwani understood the implications of his decision. I asked amicus whether, in his judgment, there was any evidence that should be heard by the court on this voir dire, and he indicated that there was not.
[14] I also pointed out that when Mr. Bharwani made his submissions, he sought permission to read from two academic papers he had obtained from the internet. The Crown objected to the use of these articles, arguing that they were not proper evidence to be placed before the court and that, in any event, evidence cannot be led in submissions. I ruled that I would relax the rules of evidence and permit Mr. Bharwani to read excerpts from these articles to the court. I indicated that the two documents had been marked as lettered exhibits on this voir dire.
Charter Compliance
[15] In my oral ruling, I also referred to the issue of Charter compliance and explained why I was satisfied that there was no basis under the Charter to support an argument for exclusion of Mr. Bharwani’s statements.
[16] I explained that Charter scrutiny is required before statements made by an accused person may be admitted into evidence. Further, if there is evidence that demonstrates that the statements or utterances were obtained in a manner that violated the accused’s Charter rights, the court must determine whether the statements should be excluded under s. 24(2) of the Charter because their admission would bring the administration of justice into disrepute. To be clear, although I did not say so in my oral reasons, I also had considered whether s. 24(1) of the Charter was engaged.
[17] I indicated that amicus did not raise any Charter issues and that Mr. Bharwani had confirmed that he did not have any Charter issues to raise after consulting with amicus. I concluded by saying that I was satisfied there was full Charter compliance and that the statements were not obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter.
[18] I repeat now that I am completely satisfied that the police acted well within their authority and with appropriate respect for Mr. Bharwani’s Charter rights.
Voluntariness
[19] In my oral ruling delivered last week, I concluded my comments by stating that the Crown had discharged its burden of demonstrating beyond a reasonable doubt that the statements were given voluntarily. I stated that no-one in authority had made threats, promises or provided inducements, or otherwise conducted themselves inappropriately.
[20] I stated that there was no atmosphere of oppression that had induced Mr. Bharwani to make his statements. I also stated that I was satisfied beyond a reasonable doubt that Mr. Bharwani’s statements were the product of an operating mind and that he had made the statements as a result of his own decision to do so.
[21] I determined that the statements had been proven beyond a reasonable doubt to have been made voluntarily.
[22] In these reasons, I provide a more detailed explanation of my conclusion that the statements were made voluntarily.
Applicable Legal Principles
[23] Statements against interest made by accused persons are presumed to be inadmissible and must be proven beyond a reasonable doubt to have been made voluntarily: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 11; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 30, 68; R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, at para. 37.
[24] Evaluation of the voluntariness issue is a fact-driven, contextual exercise. To establish voluntariness, the Crown must provide “a sufficient record of the interaction between the suspect and the police”: R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, at para. 65 (C.A.).
[25] The importance of context in evaluating voluntariness was recently succinctly summarized by Hourigan J.A. in R. v. Fernandes, 2016 ONCA 772, at para. 23:
When reviewing a confession, a trial judge should consider all the relevant factors to understand whether the circumstances surrounding the confession give rise to a reasonable doubt as to the confession’s voluntariness. The relevant factors include: oppression, threats or promises (i.e. inducement), the operating mind requirement, and police trickery: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.
[26] In R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, at para. 30, the Supreme Court observed that the core issue to be determined is whether the police conduct deprived the suspect of making an effective choice to provide a statement by reason of coercion, trickery, misinformation or the lack of information. Importantly, in Whittle, there was evidence before the trial judge that the accused was suffering from a major mental illness and was experiencing auditory hallucinations at the time he gave his statement. In holding that the trial judge had erred in excluding Whittle’s statement, Sopinka J., writing for the Court, reiterated previous decisions of the Supreme Court holding that mental illness was not a basis upon which to conclude that a statement was not made voluntarily, unless the evidence demonstrates such a limited cognition that the suspect does not have an operating mind in the sense that the suspect does not know what he or she is saying or that what is being said may be used in proceedings against him or her.
Analysis
[27] Although the evidence was not formally placed before me on this voir dire, I was aware that Mr. Bharwani had been initially found to be unfit to stand trial by a jury because of his mental illness. Then later, in August 2016, a second jury held that Mr. Bharwani was fit to stand trial. This trial began on January 9, 2017, more than four months after the jury’s fitness finding. At the outset of these proceedings, before the accused was arraigned, I conducted a further inquiry to determine whether another fitness hearing before a jury was required. Mr. Bharwani demonstrated (and continues to demonstrate) that he was well-oriented and that he meets all the criteria for fitness to stand trial. I therefore determined that no further fitness hearing was required.
[28] I mention this in the context of a discussion of the voluntariness issue because it was the position of the Crown that since there was no evidence before me about Mr. Bharwani’s mental illness, I could not take that factor into consideration when evaluating whether his statements were made voluntarily.
[29] I disagree. In my view, particularly when the accused is self-represented, it is incumbent upon the court to carefully consider whether the statements made were the product of an operating mind and, in a real and practical sense, made as a result of a conscious decision by Mr. Bharwani. In my view, it would be unfair to pretend that there were no mental health issues in play that potentially impacted upon the voluntariness of Mr. Bharwani’s statements. In the end, however, as I will reiterate below, I am satisfied that despite any mental health issues suffered by Mr. Bharwani, his statements to police were made voluntarily and were the product of an operating mind. Having heard the evidence of the officers, and having repeatedly viewed the one-hour videotaped statement, it is quite clear to me that Mr. Bharwani fully understood his circumstances and that his statements were made because he decided to make them.
[30] The threshold to establish that a suspect has an operating mind is set relatively low. In Oickle, citing Sopinka J. in Whittle, the Court held that, “[T]he operating mind requirement ‘does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment…’” (at para. 63). In Whittle, Sopinka J. also wrote that, “Inner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind unless, in combination with conduct of a person in authority, a statement is found to be involuntary” (at para. 54).
[31] Mr. Bharwani suggested that he did not have an operating mind because he was vulnerable and unstable. He also claimed that he was he was provoked by hunger, nicotine addiction, carelessness, and suicidal ideation during the audiotaped statement. He also stated that he was young at the time, was inconsistent with his answers, and had difficulty making up his mind.
[32] Mr. Bharwani’s arguments do not provide a sufficient basis for the court to find that he did not have an operating mind. Mr. Bharwani clearly knew that he was dealing with the police from the beginning when he turned himself in after making the 911 call. Mr. Bharwani also asserted on several occasions that he did not wish to talk with the officers – including in response to a caution and information that he had the right to counsel in the police car and in the interview at the station. These incidents suggest that Mr. Bharwani understood both that he did not have to speak with the officers and that whatever he might say could be used as evidence against him.
[33] Further, these incidents illustrate that Mr. Bharwani chose to speak (or, in certain instances, chose not to speak) without any meaningful prompting by the police. There is no evidence that Mr. Bharwani’s mental health compromised his ability to make decisions. This point was acknowledged by Mr. Embry, who conceded that while there was evidence Mr. Bharwani may have mental health issues, they do not rise to the level required by Whittle to suggest he does not have an operating mind.
[34] Mr. Bharwani had knowledge of what he was saying; that he was saying it to a police officer; and that the police officer(s) could use it to his detriment: Oickle, at para. 63 (citing Whittle). I have no doubt, having examined the video and heard the evidence of the officers, that Mr. Bharwani made a conscious decision with an operating mind to make the statements to the officers.
[35] Mr. Bharwani also placed conditions on his willingness to speak to the homicide officers. He demanded a “heavy meal”. He demanded “a cigarette”. The homicide officers made it clear that while they were prepared to get him food and if possible, cigarettes, neither was being provided in order to induce Mr. Bharwani to speak to them.
[36] The video statement shows that the officers conducted themselves with restraint and professionalism throughout. Any manipulation during the interview was on the part of Mr. Bharwani, not the police. There were long periods during the interview when Mr. Bharwani turned his back on the officers, saying that he wanted to clear his mind and enjoy his cigarette after which he would give the police more information. During these periods, the police continued to question him, but without raised voices, threats, or other intimidation tactics.
[37] I am aware that oppressive circumstances can also give rise to reasonable doubt about voluntariness. Oppressive circumstances can take many forms. In Oickle, the court provided a non-exhaustive list of possible oppressive circumstances that could give rise to a reasonable doubt about the voluntariness of a statement. They include deprivation of food, clothing, water, sleep, medical attention; denial of access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time”: Oickle, at para. 60. To this list I would add contextual considerations such as the youth of the suspect, the length of time he has been in custody, and to some extent, any fragility that exists because of his mental health issues.
[38] However, in the case before me, the police took numerous steps to ensure they thoroughly complied with their obligations. From the beginning, the police took steps to record all interactions with Mr. Bharwani, including by switching him from the police car that was on scene when he was first arrested – which was not equipped with an in-car camera – into one that arrived shortly afterwards with an in-car camera. Further, there was no evidence of oppressive conduct by the police in the audiotapes or video recordings.
[39] Mr. Bharwani was cautioned several times throughout the series of statements he made, including in the holding cell and in the videotaped interview. He was also given the opportunity to speak with counsel, which he initially declined. Mr. Bharwani eventually spoke with duty counsel. In addition, Mr. Bharwani was provided, at his request, with adequate food during the interview. I am unable to find fault with the conduct of the homicide officers.
[40] It was argued by Mr. Bharwani, and by amicus on his behalf, that the evidence shows that the police took advantage of Mr. Bharwani’s repeatedly stated desire to smoke cigarettes in order to induce him to make statements against his interest. I must reject that submission. There is nothing in the evidence to support the contention that the police used the cigarettes as a quid pro quo. That is, there is nothing to suggest that the message conveyed to Mr. Bharwani, either expressly or by implication, was that if he talked he would get cigarettes and if he didn’t talk, he wouldn’t.
[41] The majority in Oickle explained, at para. 71, that:
[A] relatively minor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation…. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary.
[42] And in Spencer, supra, at para. 15, the Court explained:
[W]hile a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement.
[43] Further, there must be a nexus between the threat or promise and the confession: Fernandes, at para. 29; Oickle, at para. 84.
[44] As Oickle and Spencer make clear, in evaluating whether there was an impermissible quid pro quo, the overarching consideration is whether the will of the suspect was overborne – that is, whether the suspect confessed merely to gain whatever benefit is being offered by the police: Oickle, at para. 57; Fernandes, at para. 27.
[45] Assessing whether there was an offer in exchange for a confession is a fact-driven exercise that is very much dependent upon the individual circumstances of the case.
[46] An important contextual consideration is the fact that it was Mr. Bharwani himself who initiated the police interaction when he made the 911 call shortly after the homicide. Without prompting, he told the 911 operator that he wanted to turn himself in because he had “just killed a girl”. Without any prompting by the police, he initiated that call and confessed to the homicide. Subsequent events and statements must be considered in the light of those initial statements to the 911 operator.
[47] In arriving at my conclusion on voluntariness, I have remained mindful that at the time of his arrest, Mr. Bharwani was just 18 years old. He had been under arrest for several hours. He likely was suffering from a mental illness. He was hungry and wanted to smoke cigarettes. He made his desires known and the homicide detectives took steps to get him some food and cigarettes, after carefully explaining that the provision of food or cigarettes did not constitute an inducement to him to provide a statement.
[48] After being cautioned and given the opportunity to speak with counsel at the beginning of the holding cell audiotape and the videotaped interview, Mr. Bharwani initially indicated that he did not wish to give a statement to the police. However, he later indicated that he would not speak to police until he got a cigarette and a heavy meal. In the videotaped interview, the police took pains to explain that if they were to give Mr. Bharwani a cigarette, it was not meant to influence him to speak with them.
[49] Mr. Embry submitted that Mr. Bharwani was stalling because he wanted to keep smoking, and the message from the police, both express and implied, was that the cigarettes would keep coming only if Mr. Bharwani kept talking. Amicus took particular issue with Detective Worden’s statement late in the videotaped interview that, “You want another smoke we’ve gotta (ph) do some talking. Come on.” Mr. Embry explained that Mr. Bharwani had been in the interview room for approximately seven hours at this point. Mr. Bharwani was also vulnerable as a young person.
[50] By contrast, the Crown contended that Mr. Bharwani and amicus took excerpts of the videotaped interview, in particular, out of context.
[51] The requests for a cigarette were initiated by Mr. Bharwani, not the police officers. This was not a situation involving a quid pro quo – that is, cigarettes were not offered to Mr. Bharwani in exchange for his confession.
[52] This case is similar to R. v. Lavallee, 2012 ONSC 2623, where the provision of cigarettes to the accused at the accused’s insistence was not an inducement and, even if it were, “it was not strong enough to raise a reasonable doubt about whether Lavallee’s will was overborne” (at para. 31). Further, the police officers took steps to explain to Mr. Bharwani that the cigarettes were not being given to him in exchange for a confession. While the police did say that if Mr. Bharwani wanted another cigarette, “we’ve gotta (ph) do some talking,” this does not, on its own, rise to the level of an inducement that renders the statement involuntary.
Police Trickery
[53] This distinct part of the voluntariness analysis asks whether the police used tactics that would shock the conscience of the community: Oickle, at para. 66. There was nothing in the police’s conduct in the case before me that would shock the conscience of the community or rise to the level of police trickery. On the facts of the application before me, there is nothing “so appalling as to shock the community”, such as the examples provided in Oickle of a police officer pretending to be a chaplain, for instance: Oickle, at paras. 66-67.
Conclusion
[54] The Crown has proved beyond a reasonable doubt that all of Mr. Bharwani’s statements to the police are voluntary.
J.D. McCombs J.
Released: January 26, 2017
CITATION: R. v. Bharwani, 2017 ONSC 649
DATE: 20170126
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOHAMED ADAM BHARWANI
REASONS FOR JUDGMENT
J.D. McCombs J.
Released: January 26, 2017