COURT FILE NO.: CR-17-70000433-0000

DATE: 20180510

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMMED HANSA

C. Glaister, for the Crown

T. David, for the Defence

HEARD: 5-6 April 2018

s.a.Q. akhtar j.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

1The accused stands charged, as co-accused with Hamza Shaikh, with a number of offences including attempted murder, aggravated assault, robbery, extortion, kidnapping and assault with a weapon.

2The Crown alleges that the offences were committed as part of a drug deal in which the alleged victim in the case, John Zikos, was “set up”, driven to an isolated area on Lake Ontario, and violently beaten.

3At the forthcoming trial, the Crown seeks to adduce a statement made by Hansa after he turned himself in to the Toronto Police Service’s 55 Division. The defence opposes the application.

Background Facts

4On 27 March 2016, Zikos arranged a drug transaction between Shaikh and another man known as “Bugs”. At around 2 a.m., Zikos and Bugs met Shaikh in the driveway of a Toronto condominium located at 135 Village Green in Toronto.

5Zikos arrived in a Toyota Prius and Shaikh in a Jeep Patriot driven by an unknown male. Zikos left his car, walked over to the Jeep, and returned to the Prius carrying nine ounces of cocaine. Bugs handed Zikos an envelope purportedly containing cash payment for the drugs. As Zikos returned to the Jeep with the envelope, Bugs exited the car and fled the scene.

6At approximately 2:19 a.m., the Jeep containing Zikos, Shaikh, and the unknown male arrived at the Metro grocery store parking lot located at Kennedy Commons in Toronto. Surveillance video from the store shows that a few minutes earlier, two men entered the parking lot, one of whom was wearing a red jacket with a red hood. The Crown alleges this man to be Mohammed Hansa. The other man’s identity remains unknown but is hereinafter referred to as Male 2.

7Both men entered the Jeep which returned to 135 Village Green at 2:25 a.m. After one occupant left the Jeep, both the Prius and Jeep drove to an area near Lake Ontario and Cherry Street. Another car carrying two unknown males arrived. Zikos was then taken to an area near 2 Regatta Road in Toronto.

8Zikos alleges that he was beaten by all six men at the Cherry Street, and near the Regatta Road locations. During the course of the night, he was threatened with death, made to undress to his underwear and wade waist deep into the water.

9After the six men left, Zikos was assisted by a stranger who called 911. When the authorities arrived, Zikos was taken to St. Michael’s hospital where he received treatment for hypothermia, and injuries to his face and body.

The Accused’s Statement

10On 10 April 2016, the accused attended 55 Division and was placed under arrest.

11He was subsequently placed into an interview room where he was interviewed by Detective Constable Christopher Hutchings. Hutchings was accompanied by Detective Daryl Lindquist who played no direct part in the interview but stood at the threshold of the door.

12Hutchings testified that he met the accused in the police interview room and immediately reminded him of his right to counsel before asking him if he was willing to provide a video recorded statement. According to Hutchings, the accused replied: “You can ask me what you want, but I’m not going on video”.

13The officer proceeded to ask questions and note down the answers in bullet point form. These notes were re-written and expanded approximately 10-30 minutes after the interview had ended.

14Hutchings testified that the accused was quiet and calm and that assured Hutchings that he was “fine”.

15Hutchings testified to showing the accused a picture taken from the Metro store surveillance camera and asked him to identify the male in the red jacket. The accused identified himself.

16He told Hutchings that on the night in question, he was at his girlfriend’s home and called his friend, Shaikh, to go drinking. His girlfriend had dropped him off at the Metro store although he was unsure about some of the details because, at the time, “he was already halfway through a bottle of Hennessy”.

17The accused had no recollection of what had happened at the Metro because of his alcohol consumption but claimed to have returned home by 3:00 a.m. after catching a taxi from Victoria Park subway station. He denied being at Lake Ontario and told Hutchings that he did not know Shaikh to be a drug dealer.

18The accused explained that he had thrown away his jacket in a garbage can on Danforth Avenue. He had also discarded the shoes he was wearing at Fairview Mall because his girlfriend had bought him a new pair. Finally, he confirmed that when he was at home, he slept “upstairs”.

19Hutchings’s notes were not signed by the accused.

20Detective Lindquist testified that a search warrant had already been executed at Hansa’s residence by the time he first saw the accused at 55 Division. Lindquist confirmed that even though he was present, he had no conversation with the accused. He, too, confirmed that their intention was to have the accused provide a statement on video, but once the accused had indicated his unwillingness to do so, they did not proceed. However, Lindquist confirmed the accused’s willingness to answer questions.

21The accused did not testify on the voir-dire.

WAS THE ACCUSED’S STATEMENT MADE VOLUNTARILY?

Position of the Parties

22Ms. Glaister, for the Crown, seeks admission of Hansa’s statement and submits that, despite the lack of audio or video recording, the evidence before the court demonstrates beyond a reasonable doubt that the statement was voluntary.

23Mr. David, on behalf of the accused, submits that the court should have a reasonable doubt about the voluntariness of statement because of the failure on the part of the police to video record the statement as required by appellate jurisprudence.

Legal Principles

24A statement made by an accused to a person in authority is presumptively inadmissible unless the Crown proves, beyond a reasonable doubt, that it was made voluntarily. All circumstances surrounding the making of the statement must be scrutinised. In deciding the issue, the court must determine whether the will of the accused was overborne by the conduct of the police: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 71.

25The traditional focus of the voluntariness inquiry has been the police use of oppression, threats or inducements, or whether the accused in making a statement had an operating mind: Oickle, R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 12; R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at para. 31. A second line of inquiry has centred on the use of police tricks to obtain information. A statement is inadmissible if the tricks used would shock the conscience of the community: Oickle, at paras. 65-66, 91; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 79.

26None of these factors are alleged by Mr. David in this case. Nor does the defence raise any issue regarding the arrest of the accused, his treatment at the station, or any non-compliance with his Charter rights. As a result, both parties commendably agreed that only Lindquist and Hutchings needed to testify.

27Mr. David concentrates his attack on admissibility through the line of cases outlining the need to adequately record statements made by suspects. The leading case in this area is R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 160 C.C.C. (3d) 493 (Ont. C.A.), where at para. 65, Charron J.A., (as she then was), wrote:

[T]he 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.

28The implementation of the principles set out in Moore-McFarlane can be found in subsequent appellate decisions such as R. v. Philogene (2006), 2006 CanLII 38729 (ON CA), 148 C.R.R. (2d) 371 (Ont. C.A.); R. v. Sabri (2002), 2002 CanLII 44974 (ON CA), 166 C.C.C. (3d) 179 (Ont. C.A.); R. v. Ahmed (2002), 2002 CanLII 695 (ON CA), 170 C.C.C. (3d) 27 (Ont. C.A.).

29Mr. David further argues that Hutchings intended to interrogate the accused from the outset, without regard for the need to properly record the statement. In support of his argument he points to the fact that the officer entered the interview room with the photos that were ultimately shown to the accused.

30Both Hutchings and Lindquist acknowledged that camera equipment could be found nearby, and that it was incumbent upon the police to video record the question and answer session that took place.

31Mr. David asks this court to follow cases such as R. v. Burke, 2010 ONSC 6530; R. v. Smith, 2017 ONSC 2648; and R. v. Shire, 2014 ONSC 3519 which excluded statements on the basis of a failure to record.

Analysis

32I start with the observation that there is no absolute rule that an accused’s statement must be recorded before being declared inadmissible: Moore-MacFarlane, at para. 64.

33In R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 200 C.C.C. (3d) 179, (Ont. C.A.), at para. 98, Borins J.A. set out the requisite obligations of the police with respect to recording statements:

As noted in Oickle and Moore-McFarlane, the failure to record interrogations does not render them inherently suspect. Rather, a non-recorded interrogation becomes suspect when the following circumstances, which do not exist in this case, are all present: (1) the suspect is in custody; (2) recording facilities are readily available; and (3) the police deliberately interrogate the suspect without giving any thought to making a reliable record. The only custodial interrogation of the appellant took place after his arrest on September 29, 1997. It was completely recorded on videotape. In my view, the finding that the five impugned statements were voluntary was not tainted solely because they were not audio or videotaped, or because some of the attending officers did not testify on the voir dire. [Emphasis added]

34In R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1, (Ont. C.A.), Rosenberg J.A. considered the admissibility of police notes made by an officer with respect to his conversation with the accused. As is the case here, the defence sought exclusion of the accused’s utterances because they had not been video recorded. Acknowledging the principles in Moore-McFarlane, Rosenberg J.A. dismissed the defence argument, making the following observations at paras. 118-119:

This, however, is not a case where there were reasons to believe that the failure to record the statements was suspect. According to the investigating officers, the appellant agreed to speak to them but only if his statements were not videotaped. It was open to the trial judge to accept this evidence, especially in the absence of any testimony from the appellant to the contrary. That said, I should not be taken as holding that it will always be an answer to the failure to videotape the statement that the suspect has refused to participate. It could become all too easy for the authorities to attempt to avoid the impact of this court's decision in Moore-McFarlane by attributing to the suspect a refusal to have his statements videotaped. It would still be open to the police to tape record the statement, or at the very least electronically record the suspect's wishes, to avoid any later dispute. Depending on the context, the trial judge might well view with concern a bare assertion by police officers that the suspect refused to be videotaped or even tape-recorded.

In my view, it was open to the trial judge to find that there was an adequate record of the interrogation from which the trial judge could find that the Crown had proved that the statements were voluntary. The officers' notes did not contain a complete record of all that was said and they admitted that they could not recall parts of what they or the appellant said during the several hours of interrogation. On the other hand, the trial judge was satisfied that the officers had provided an account of what took place during the interrogations and that the appellant's statements were voluntary. I would not interfere with those findings.

35Unlike Moore-McFarlane, the unchallenged and uncontradicted evidence in this case, reveals that the police did not question the accused “without giving any thought to making a reliable record”. They asked the accused if he wished to speak to them in front of video cameras. He made it clear that he was not willing to do so. However, his open invitation to “ask me what you want” signalled his intention to co-operate with the police “off camera”.

36At that point, Hutchings concluded that there was little point in trying to record, either on video or audiotape, the statement due to the accused’s emphatic refusal. In cross-examination, Hutchings testified that when the accused told him that he would not go on video, he also took that utterance to amount to a refusal to be audiotaped.

37I found Hutchings testimony to be honest and truthful. I accept his evidence that whilst the accused was unwilling to be recorded, he was equally open to answering questions so long as there was no audio/visual chronicling of the exchange. His evidence on these points was unchallenged and uncontradicted.

38Hutchings also conceded that he had not asked the accused to sign his notes because he felt that the accused was not telling the truth. He also agreed that there may have been additional details that did not make it into the detailed notes made after the interview.

39Therein lies the distinguishing points between the case at bar and those relied upon by the defence.

40In Smith, for example, the accused testified that the police had offered him an inducement to speak with them in a “pre-interview” which was not recorded. In Shire, the accused testified that the police, in an “off camera encounter” told him that if he gave a video statement, his acquaintances that had also been arrested would be released. In Burke, the judge found inconsistencies within the police witnesses’ evidence that created a doubt in the absence of a video or audio recording of statement. All of these cases contained evidence that contradicted the police version of events and raised questions about the credibility of the officers.

41None of those factors exist here. There was no evidence to contradict Hutchings or Lindquist and, as in Backhouse, the accused did not testify. Indeed, as noted, defence counsel did not dispute the accused’s declaration that the police could ask what they wanted but not on video.

42As noted, the defence line of attack consisted of the failure of the police to video record their interactions with the accused. I agree that it would have been preferable had the police recorded the accused’s stated desire not to be video recorded. However, one cannot lose sight of the ultimate goal in the scrutiny of an accused’s statement to police. The object is not to decide whether proper procedures were followed, although that, of course, plays a significant role in the analysis. The overarching consideration is to determine whether the statement was voluntary: Spencer, at para. 19.

43In the circumstances of this case, I find beyond a reasonable doubt that it was.

The Accuracy of the Notes

44Prior to submissions by counsel, I raised a preliminary point with Ms. Glaister about Hutchings’ testimony with respect to his handwritten notes of the conversation with the accused.

45As already described, Hutchings testified that after making his initial notes in bullet point form, he wrote out an expanded version minutes later. In cross-examination, Hutchings agreed that some things said by the accused may not have been included in the notes, a concession which called into question their accuracy.

46In R. v. Lapointe and Sicotte (1983), 1983 CanLII 3558 (ON CA), 9 C.C.C. (3d) 366 (Ont. C.A.); aff’d 1987 CanLII 69 (SCC), [1987] 1 S.C.R. 1253, the Court of Appeal for Ontario, at pp. 377-382, explained the interrelationship between accuracy of recording the notes and voluntariness:

While it is true that, on a voir dire, the trial judge may have a duty to decide whether the accused has the capacity to give a free and voluntary statement, the question of the authenticity of the statement falls to be determined by the trier of fact at the conclusion of the trial. The entire ruling under appeal is tainted with the confusion of capacity with authenticity.

There being "some evidence" that the accused made the statement, the question of its accuracy was properly for the jury.

Questions regarding the accuracy of the recording of an accused person's words by reason of unconscious editing on the part of the police have to do with the authenticity of the statement and do not fall to be decided by the judge on the voir dire. If he does so, as apparently the learned trial judge did in the present case, he is usurping the function of the trier of fact. The 12 bilingual jurors at this trial were eminently capable of resolving the issues of accurate or inaccurate recording of the respondents' words, of unconscious or deliberate inaccuracy, editing or deliberate fabrication. They are issues of authenticity and are not to be confused with issues of admissibility.

47In Moore-MacFarlane, however, the court indicated, at para. 67, that notwithstanding the above comments, the “completeness, accuracy and reliability of the record have everything to do with the court’s inquiry” into voluntariness.

48In R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at para. 62, Code J., after a thorough review of the case law, including Lapointe and Moore-MacFarlane, concluded that:

Accordingly, the current state of the law is that the accuracy and completeness of the record of a voluntary statement is an issue of weight that is determined at trial. However, the accuracy and completeness of the record of the circumstances surrounding the making of the statement can relate to proof of voluntariness on the voir dire. This is not an easy distinction to apply, especially in a case like the one at bar where no evidence is called by the defence on the voir dire.

49See also: R. v. Menezes (2001), 2001 CanLII 28426 (ON SC), 48 C.R. (5th) 163 (Ont. S.C.J.) at paras. 26-30; R. v. Flanagan, 2015 ONSC 2513, 333 C.R.R. (2d) 83, at para. 14.

50More recently, the Court of Appeal for Ontario has made clear that the concepts of voluntariness and reliability of the statement must not be conflated on the admissibility voir dire: R. v. Fernandes, 2016 ONCA 772, 343 C.C.C. (3d) 29, at paras. 39-42.

51I find that in this case, the issue of accuracy and voluntariness is relatively easy to separate.

52As already indicated, there are no allegations that the traditional roadblocks to voluntariness, such as oppression or inducement, exist. The accused attended the police station voluntarily and appeared to be treated with respect. The question and answer session was relatively short. Even though the officer appeared to have little recollection of the layout of the interview room or its furniture, I find that does not affect the overall conclusion that the statement was made voluntarily and that the officer tried to record it accurately in his notebook.

53I note that the statement itself is largely exculpatory and is to be used by the Crown principally for the accused’s agreement that he is the man in the red jacket captured in the Metro surveillance photo. Any gaps or inaccuracies in the statement are, in the circumstances of this case, matters for the trier of fact to determine and not an issue for admissibility of the utterances.

CONCLUSION

54For the above reasons, I find the accused’s utterances to be voluntarily and admissible at trial.

S.A.Q. Akhtar J.