COURT FILE NO.: CR-15-5075
DATE: 2018/05/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
ALI ABDI-AZIZ ABDIRAHMAN
Respondent/Accused
Stacey Siopis, for the Crown
Israel Gencher, for the Respondent/Accused
HEARD: March 21, April 23 and 25, 2018 (at Ottawa)
DECISION on Voluntariness and AdmissIbility of Statement
KANE J.
Relief Sought
[1] The Crown in this Application seeks an order permitting introduction into evidence at trial of the respondent’s June 18, 2015 video recorded statement to police on the basis it has proven the voluntariness thereof beyond a reasonable doubt.
Charges
[2] The respondent was charged with three counts of misconduct allegedly occurring between November 1, 2014 and April 26, 2015, namely:
(a) that he, being a person in a position of trust or authority of a person with a mental or physical disability, did incite WA without her consent to touch WA with a part of his body, contrary to s. 153.1 of the Criminal Code of Canada;
(b) that he sexually assaulted WA, contrary to s. 271 of the Criminal Code of Canada; and
(c) that for a sexual purpose, he touched WA who was under 16 years of age with a part of his body, contrary to s. 153 of the Criminal Code of Canada.
[3] The Crown as to these charges alleges one event of the respondent having sexual intercourse with WA in the backseat of his vehicle.
[4] Subsequent to argument of this application, the Crown advised that it would proceed with only one charge, namely the charge of sexual assault and would not be proceeding with the other two charges.
Respondent’s Opposition to Introduction of Statement
[5] The respondent submits that the Crown has failed to prove the voluntariness of the audio-video recorded statement beyond a reasonable doubt as:
(a) the translator used by Police in the interview failed to translate and state in English all things said by the respondent during the interview thus resulting in a defective and therefore unreliable English audio recording and transcription of what the respondent stated during the interview;
(b) the complete translation of all things stated by the respondent, always required, is important as the translation of the translator in this interview contains both inculpatory statements as to the charges as well as the denial thereof;
(c) Police conducted the interview in a confrontational, aggressive and accusatorial manner;
(d) Police in conducting the interview in the above manner failed to accommodate the fact that the respondent was a recent immigrant to Canada from Somalia resulting in the interview being oppressive; and
(e) the applicant accordingly has failed to prove the voluntariness of the police interview beyond a reasonable doubt and it should be excluded from evidence at trial.
[6] The respondent further submits the interview evidence should not be introduced in evidence as its prejudicial nature outweighs its probative value, as:
(a) the English translation of the respondent’s statements in the interview is unreliable; and
(b) the accusatorial statements of the interviewing officer during the interview are her personal opinion of the respondent’s culpability which would not be admissible at trial which the applicant however now seeks to introduce into evidence via this interview.
[7] The respondent in opposing the voluntariness order sought does not allege that the statement was obtained by police threats or enticements.
Background
[8] Two uniformed members of the Ottawa Police Services attended the respondent’s home on June 17, 2015 intending to arrest him on charges of sexual exploitation of a person with a disability and sexual assault. The Officers explained in English the purpose for their attendance to charge the respondent and his rights. The Officers concluded that the respondent’s limited capacity in English necessitated the use of a Somali-speaking officer as the respondent did not appear to understand what was being stated to him in English.
[9] The Officers accordingly directed the respondent to attend the police station at 09:00 on June 18, 2015 and meet with Detective Cyr in order to be charged.
[10] There is no evidence or submission that these two officers on June 17, 2015 made any threats, promises, inducements or provided any advice to the respondent.
June 18, 2015
[11] The respondent on June 18, 2015 attended the police station as requested and thereupon met with Officer Amed who speaks but does not read Somali and with English-speaking Detective Cyr. The respondent shook Officer Amed’s hand upon meeting.
[12] Attending a police interview about alleged sexual misconduct and possible criminal charges would be stressful for most.
[13] Officer Amed advised the respondent in Somali at 09:25 that he was arrested for sexual assault of WA. The respondent denied wrongdoing and indicated his willingness to speak to Detective Cyr. Officer Amed then placed the respondent in handcuffs, searched him and detained him in the cell area prior to the commencement of the interview.
[14] Officer Amed printed off copies of text in Somali of an accused’s right to silence, the secondary right and the right to consult legal counsel which he gave to the respondent and Detective Hassin who speaks and reads Somali. The respondent advised that he read and understood the text of the legal rights documentation given to him.
[15] Detective Hassin then advised the respondent in Somali of his right to silence, the secondary right and the right to speak to legal counsel.
[16] The respondent indicated he wished to speak to legal counsel. Officer Amed arranged for the respondent, with the assistance of a translator, to consult with a lawyer prior to his statement.
[17] There is no evidence nor is it submitted that Officer Amed or Detectives Cyr or Hassin prior to his subsequent statement made any threats, promises, inducements or that they gave any advice to the respondent.
[18] Police had already arrested and charged the respondent with these accusations prior to conducting the subsequent 1 hour interview. Detective Cyr as lead investigator had already decided the respondent had sexually assaulted the complainant which is why she arrested and charged him. As will be seen from her comments and comportment during the statement, she apparently believed the alleged misconduct was highly inappropriate.
[19] The short interview, particularly considering a translator was used, was Detective Cyr’s attempt to obtain an admission of guilt in order to increase the Crown’s opportunity to secure a conviction after charging the respondent.
[20] There is nothing inappropriate about Police obtaining a statement after arresting and charging the respondent.
Law
Voluntariness and Admissibility into Evidence of Statement
[21] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada established the current state of the law relating to the voluntariness of confessions. In the Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) David M. Paciocco, J.A., and Lee Stuesser describe the Oickle rule in the following manner at p. 346:
The heart of the law is captured in the following general proposition:
In order for most statements made to a person in authority to be admissible the Crown must establish beyond a reasonable doubt in light of all the circumstances that the will of the accused to choose whether to speak has not been overborne by inducements, oppressive circumstances, or the lack of an operating mind. In addition, there must not be police trickery that unfairly denies the accused’s right to silence.
[22] The Supreme Court in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (“Oickle”) and R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 (“Singh”) subsequent to that court’s decision in R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 (“Hebert”), articulated numerous principles whether a statement to police should be determined voluntary and therefore admissible into evidence or excluded. Those principles include the following:
Confession Rule, Voluntariness, Reliability and Onus
(a) the Crown bears the onus beyond a reasonable doubt to show that the statement is voluntary, failing which the statement will be excluded: Singh, para’s 25 and 38;
(b) voluntariness is a broad term encompassing various forms of prohibited conduct: Oickle, para 70 and Singh, para 30;
(c) the confession rule has two themes. The first is freedom to decide whether to speak to police. The second is to make sure that the receipt of statements to police is not unfair or brings the administration of justice into disrepute. The confession rule is broader than exclusion of unreliable statements: Singh para 34 and Hebert, para’s 28 and 30;
(d) no one is obliged to provide information to police or answer their questions. The right to silence is embodied in the confession rule independent of the right to silence as contained in section 7 of the Charter: Singh, para’s 24, 27, 31, and 34;
(e) the primary reason for the confession rule is a concern regarding the reliability of statements given to police: Singh, para’s 29 and 30;
(f) an inquiry regarding voluntariness is not an inquiry as to reliability. It instead is an inquiry about the authorities conduct as regards reliability of the statement: Oickle, para 65;
(g) voluntariness and reliability overlap. The conduct of police relates to reliability of the statement; Oickle, para’s 47 and 65;
(h) oppression and inducements are primarily concerned with reliability: Oickle, para 69; and
(i) the video recording of a statement to police is important in supporting the trustworthiness of a confession to police: Oickle, para 46.
Conduct
[23] Conduct by police determined unacceptable as negatively impacting on the voluntariness of a statement includes acts of violence, threats including subtle or veiled threats, promises, torture, coercion, a statement not freely and voluntarily given, the lack of knowledge as to an accused’s right to silence, inhumane conditions of detention, police trickery if shocking to the community: Oickle, para’s 25, 26, 44, 48, 53, 59, 60, 65, 66 and Hebert, para 26.
[24] Police misconduct impacting voluntariness and the lack of free will includes persistence in continuing interrogation despite the accused’s repeated assertion of his right of silence: Singh, para 47 and 50.
[25] A statement may be involuntary in the face of complete emotional disintegration, if:
(a) given in an atmosphere of oppression;
(b) in response to inducement of hope of advantage or fear of prejudice;
(c) made as a result of intimidating questions or oppressive questioning aimed at overcoming freedom of will; and
(d) as well as coerced confessions based on threats or promises that the statement would be in the accused’s best interest: Oickle, para’s 27, 58, 33, 44.
[26] Courts have held a statement was involuntary:
(a) in the face of intimidating questions or oppressive questions calculated to overcome the freedom of will: R. v. Precourt 1976 CanLII 692 (ON CA), [1976] 18 O.R. (2d) 714 (C.A.) at p. 719; and
(b) where there was unwarranted and excessively long period of detention: Precourt, p. 724.
[27] The case of R v. Lambe [2015] O.J. 484 (OSC) involved the defence seeking to exclude a statement because of the officer raising his voice as the questioning continued during the 2.5 hour interview when the officer considered the answers being given were not truthful, namely lies. The accused did not however appear to be nor did he make any remark of being physically uncomfortable. The officer also stated “aren’t you ashamed of doing this with a 14-year-old girl?”
[28] The court in Lambe held that the raised voice by the officer near the end of questioning was not pleasant, but was more an expression of frustration with the defendant not answering the questions asked and did not amount to oppression as the defendant had not testified to that effect.
[29] Detective Cyr did not testify on the voir dire as to the anger she expressed during the statement. The onus on this application is on the Crown, not on the respondent.
[30] The court in R. v. Frias, [1995] BCWLD 1178 (BCSC) held that questioning that was aggressive, insistent, overbearing to the point of brow beating, using a raised strident voice, cutting off her answers, persisting without interruption with questioning in the face of the accused weeping and threats to take the accused’s children rendered the statement involuntary and not dependable: para’s 23 and 29.
Conduct Not Invalidating Voluntariness
[31] As to conduct not invalidating voluntariness, the following principles have been determined:
(a) the courts should be wary to not unduly limit police discretion. Police have a right to say things to accuseds: Singh. para’s 28 and 66 :
(b) tricks or deceit by police is not objectionable unless such conduct is shocking to the community: Oickle, para’s 66 and and 67; and
(c) police persuasion is acceptable short of it denying the accused the right to choose or depriving them of an operating mind: Singh, paras 46 and 47.
Statement of Respondent
[32] The commencement of this video-recorded interview by police was delayed approximately 2.5 hours until the arrival of an interpreter to translate police questioning into Somali and the respondent’s answers into English.
[33] The respondent was questioned for 60 minutes, with a short break therein, commencing at 13:49 hours and ending at 14:51.
[34] An interpreter participated during the respondent’s police interview translating Detective Cyr’s questions into Somali and the respondent’s Somali answers into English.
[35] The respondent on 10 occasions during the statement gave short answers in English to questions posed by Detective Cyr in English and corrected a few of his English answers provided by the interpreter. The respondent had some understanding of and capacity in English.
[36] The respondent indicated he had immigrated to and had resided in Canada for approximately 1.5 years at the time of this interview on June 18, 2015.
[37] Detective Cyr spoke courteously at the commencement of the interview, as did the accused.
[38] Detective’s Cyr’s position during the interview is noteworthy. Rather than sitting across the table from the respondent as customarily occurs, Detective Cyr sat on the side of the table physically closer to the respondent and facing him.
[39] As to his understanding why he was required to attend police that day, the respondent denied any wrongdoing and stated police had no reason to hold him.
[40] The initial questions involved background information. Detective Cyr then began questioning when the respondent had last communicated with the complainant and the content thereof. She suggested he and the complainant met at a grocery store on the date in issue. The respondent, or at least his answers as translated, did not respond directly to the question. Detective Cry thereupon presented him with copies of alleged Facebook messages between himself and the complainant. The respondent stated his cellular phone had been lost and he had opened a new Facebook account. This was approximately 20 minutes into the interview.
[41] Detective Cyr then with a raised voice told the respondent five times to stop lying. The respondent replied in English that he was not lying. As this was happening, Detective Cyr then moved her chair forward and sat physically closer to the respondent.
[42] The voluntariness test as to this statement is not whether Police were friendly and polite during the interrogation. All relevant circumstances however must be considered on the issue whether the Crown has proven beyond a reasonable doubt that this statement was voluntary.
[43] A not uncommon signal of authority towards another person and a tool of intimidation is the authoritative person placing themselves very close to the other person, commonly referred to as “in your face”.
[44] Detective Cyr then on four consecutive occasions with that raised voice told the respondent that he had had sex with the 16-year-old complainant who had the mental development of an 11-year-old, that he had used a condom while doing so and then directed him to explain why he had done that. Detective Cyr was not asking but was repeatedly accusing the respondent of sexual assault with this allegedly under aged mentally handicapped complainant.
[45] Detective Cyr then repeatedly asked the respondent to indicate what the store video camera might reveal as to his attendance that date with the complainant. The respondent denied misconduct and asked what proof police had to support their allegation.
[46] The respondent then stated that he was having a headache, would say yes to anything and then on three occasions stated that he was scared and that this was his first occasion of being alone in a room with a police officer.
[47] Detective Cyr continued her questions. The respondent then admitted that he drove to the grocery store and the complainant got in his car and that he then drove her to the back of her residence building. The respondent asked why Detective Cyr was smirking at him.
[48] Detective Cyr then using a raised voice accused him of lying and stated that he had removed the pants of the complainant and had sexual intercourse with her. The respondent stated he did not understand what he was being accused of. Detective Cyr replied that he had had sex with a 16-year-old, that he had taken her into the backseat of his car, taken her pants off, put on a condom and then had sexual intercourse with her.
[49] Detective Cyr then demanded that the respondent explain why he had done this to the complainant.
[50] The video recording at this point depicts Detective Cyr as being very angry with the respondent as a result of this alleged sexual intercourse with the complainant.
[51] Detective Cyr’s reference to the complainant being 16 years old and mentally handicapped at the time is no longer relied upon by the Crown in the form of specific charges. That statement is prejudicial to the respondent.
[52] The respondent denied that he had forced anything. He then twice stated he did not want to talk about the matter. Detective Cyr continued and directed him three times to tell the truth and indicate whether he had sex with the complainant.
[53] The respondent replied:
(a) any statement he made would result in Detective Cyr calling him a liar;
(b) he wanted the interview to end;
(c) that he would only speak to his lawyer; and
(d) that Detective Cyr was no longer the nice person she had presented herself to be at the beginning of the interview.
[54] Detective Cyr continued to insist that he admit or deny having sex with the complainant. The respondent responded on three occasions that he was scared and was suffering from a headache.
[55] Then some 32 minutes into the interview, Detective Cyr departed the interview room, returned 1 minute later and adopted an approach which did not include her repeated accusations of guilt with a raised voice.
[56] It is not inappropriate during an interview and statement for an Officer to state the allegations to the accused. A judge may provide instructions to a jury as to such allegations of fact by the Officer during the interview. The context as to voluntariness here however is the multiple repetitions of the allegations by Detective Cyr as statements of fact with a raised voice in an accusatorial manner, pointing her finger, physically getting closer and the possible impact those circumstances had on the respondent’s appreciation of his right to silence, how to respond to the repeated angry allegations of wrongdoing and voluntariness.
Second Part of Interview
[57] Detective Cyr upon returning told the respondent that she was going to be nice to him. She then moved her chair again closer to the respondent and then placed her hand on the respondent’s knee. The respondent in response stated he feared she was about to strike him as Detective Cyr approached and placed her hand on his knee.
[58] Independent of action required to restrain and or respond to threatened actions of a detained person, which did not exist in this case, it was unquestionably inappropriate for Detective Cyr to have placed her hand on the respondent. That conduct in these circumstances should not have occurred. As to voluntariness, that act followed repeated accusations with a raised voice by the officer and led the respondent to initially believe that he was about to be struck.
[59] Detective Cyr then apologized to the respondent for unstated reasons. She stated the complainant alleged that she had had sex with the respondent and she wanted to know if that was true. The respondent then, as translated, made an inculpatory statement, but alleged it was the complainant and not he who removed her pants. He denied placing a condom on his penis and stated that he was scared at the time that others would see them in his vehicle and that in response to her actions towards him, he drove the complainant home.
[60] The last several minutes of the interview are about procedural matters and not about the alleged misconduct.
[61] At the end of the interrogation, the respondent stated that he had been frightened earlier in the interview however he thanked Detective Cyr for everything and expressed his belief that she was going to help him. Detective Cyr replied she would not be helping the respondent and that was the role of his lawyer.
[62] The court in R. v. Barges, 2005 CanLII 47766 (ON SC) determined a statement did not meet the voluntariness test as a result of aggressive conduct towards the accused during the interview. The court added however that independent of that finding, it would exclude the statement on the basis that its probative value was slight and greatly outweighed by the prejudicial effect which would flow if the Crown was allowed to place before the jury pages and pages of police theorization, which the accused did not respond to or where his attempts to respond were often thwarted.
[63] The raised angry voice of Detective Cyr in repeatedly accusing the respondent of lying, of sexually assaulting the complainant while demanding that he admit such misconduct combined with the officer getting physically closer to the respondent and then touching him constitute levels of aggression and oppression against someone who was a recently immigrated racial minority. The combination of those factors prevents concluding beyond a reasonable doubt that this statement was voluntary and not the result of oppression.
[64] This application is denied on this basis.
Translator and Translation
[65] There is a further issue which also negatively impacts a finding as to the voluntariness of this statement.
[66] Portions of the discussion during the interview between the respondent and the translator in Somali have not been translated into English. I therefore on this application and the jury at trial, will not fully know everything that was asked and said during the interview.
[67] At the start of this interview, Detective Cyr told the interpreter it was important that he interpret “everything that I say word for word and vice versa what he says”. The translator did not follow those instructions, which was apparent to Detective Cyr.
[68] The video recording contains numerous instances of the following:
(a) Detective Cyr would ask a question in English;
(b) the translator would translate the question in Somali to the respondent;
(c) the respondent would reply in Somali;
(d) the translator, without translating and stating that response in English, then in Somali states something to the respondent who replies in Somali;
(e) some of these exchanges in Somali are quite lengthy; and
(f) the translator then states something in English.
[69] The court does not know on these instances what the respondent’s original answer to the question was or the subsequent exchanges in Somali between the translator and the respondent were as they are not translated into English.
[70] Such untranslated exchanges between the respondent and the translator occurred, are apparent on the video recording and were apparent to Detective Cyr and the other Officer witnessing the interview in the adjoining room.
[71] Translation is not authority to select among and determine what portions of statements of the accused will be translated and communicated during the statement. Proper performance of the role as triers of fact requires accurate and complete translation of what an accused was asked, told and what the accused said.
[72] The above concern is further accentuated by the few occasions when the respondent corrects the translator’s interpretation of his answer into English.
[73] The translator did not testify on this voir dire. There is no knowledge of his qualifications or fluency in Somali and English. The court also notes that several of his translated answers in English as to what the respondent apparently stated are unclear.
[74] R. v. Mahmood, 2008 CanLII 56710 (ON SC), was a case where a second transcript was presented as to everything said in the other language between the accused and the translator. It revealed that the translator had not translated all questions and statements to the accused nor all of the latter’s statements to the interviewing officer.
[75] The court stated in Mahmood:
[119] The Crown takes the position that it was reasonable for the police to permit some discussion between the interpreter and Ms Mahmood on the understanding that the interpreter was attempting to explain the police questions more clearly or was seeking clarification from Ms Mahmood with respect to her responses. The Crown argues that it is reasonable to expect an interpreter to facilitate communication in this way. I agree, subject to the interpreter providing a translation of everything said so that police can correct anything the interpreter might have said in error. This did not happen here.
[76] A more complete transcript and translation in the present case of the conversations between the respondent and the translator is required in order to determine whether the Crown has proven the voluntariness of this statement beyond a reasonable doubt. The court’s ability to make that determination is impaired without knowing what the translator and respondent were saying to one another on repeated occasions.
[77] It would be inappropriate to rule this statement voluntary and admissible without that information and knowledge base.
[78] The present application is denied for this added reason.
Mr. Justice Paul Kane
Released: May 10, 2018
COURT FILE NO.: CR-15-5075
DATE: 2018/05/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
ALI ABDI-AZIZ ABDIRAHMAN
Respondent/Accused
DECISION ON VOLUNTARINESS AND ADMISSIBILITY OF statement
KANE J.
Released: May 10, 2018