Court File and Parties
COURT FILE NO.: 62695/14 DATE: 20180809 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ADONAY ZEKARIAS Defendant
Counsel: Ms. Mary Humphrey and Ms. Meghan Scott, for the Crown Ms. Alison Craig and Mr. Craig Zeeh, for the Defendant Mr. Paul Cooper and Ms. Lisa Jorgensen, Amicus Curiae
HEARD: September 22, 25, 27, 28, October 2, 3, 5, 6, 10 and 16, 2017.
Pre-Trial Ruling
ADMISSIBILITY OF THE DEFENDANT’S STATEMENT TO THE POLICE OF MAY 27, 2013
M. F BROWN J.
I. Overview
[1] On October 16, 2017 I gave oral reasons indicating that the statement of the defendant to the police on May 27, 2013 that was marked as Exhibit 9(a) on the voir dire was inadmissible. At that time I found that, although the defendant’s statement to the police was voluntary, his s. 10(b) rights under the Charter were violated and the evidence should be excluded under s. 24(2) of the Charter. I indicated that I would provide more detailed reasons for my decision at a later time. These are those reasons.
[2] The voir dire regarding this statement proceeded before me as a blended voir dire to consider a) whether the defendant’s statement to the police was voluntary and b) if so, whether the defendant’s rights pursuant to s. 10(a) and s. 10(b) of the Charter were violated. I will deal with the voluntariness and Charter issues separately.
II. Voluntariness
[3] Statements made by an accused person to a “person in authority” are only admissible at trial if they were made voluntarily. For a statement to be admissible the Crown must prove beyond a reasonable doubt that the statement was voluntary. See R. v. Oickle, 2000 SCC 38. The defence argues that on the record before me, the Crown has failed to prove beyond a reasonable doubt that the defendant’s statement to the police of May 27, 2013 was voluntary.
[4] The defence argues that there are a number of factors that raise a reasonable doubt that the defendant’s statement to the police was voluntary. The defence relies on the following factors:
a) The defence submits that the defendant was exhausted when he gave his statement. The defence submits that at the time of the police interview, the defendant had been in custody for over 16 hours and had been up until at least 3:00 am, if not the entire night, while waiting in a police cell. The statement the next day on May 27, 2013 began around 11:30 am. The defence submits that there was no evidence that the defendant had slept. The defence submits that the defendant appears exhausted in the video and also expresses exhaustion in the video.
b) The defence submits that the defendant was in physical discomfort when he gave his statement. The defence submits that the defendant expressed his physical discomfort and advised that he had been sick. He was wearing a paper gown and repeatedly pulled up his hood and appeared to be quite cold. The defence submits that Det. Margetson ignored the defendant’s expression of physical distress. And, submits the defence, because a translator was also being used in the interview, it is difficult to fully understand how significant these concerns were to the defendant.
c) The defence submits that the defendant’s mental state at the time of the interview was questionable. The defence submits that when the defendant was arrested, he stated that he had problems with his head and pointed to medications. The defence submits that there was no effort made to investigate these issues and to ensure that the defendant was mentally competent before interviewing him. In the booking video, the defendant was told that one of the pill bottles for his medication was mislabeled and that he would not be able to have that bottle because the pills in one of the bottles did not appear to match the prescription label on the pill bottle. The defence submits that there was no effort made by the police to attempt to ensure the defendant had received all of his medication before the interview began and that he was sufficiently fit. The defence submits that the defendant’s facial expression in the video was very neutral, raising concern about his physical and mental state.
d) The defence submits that the defendant expressed that he was in mental distress at several points during the interview. The defence submits at the very least, Det. Margetson ought to have investigated the defendant’s mental health claims before proceeding with questioning of the defendant. The defence submits that the failure to do so gives rise to a concern that the defendant did not have an operating mind during the course of the interview.
[5] The Crown submits that on the record before me, there is no evidence that the will of the defendant was overborne by the conduct of the police when he gave his statement and that the Crown has proven the voluntariness of the defendant’s statement beyond a reasonable doubt.
Analysis
General Principles
[6] The confessions rule is meant to ensure that statements made by an accused to persons in authority are admissible into evidence only where the accused has made a meaningful choice to speak. This is because confessions obtained in the absence of meaningful choice have resulted in many miscarriages of justice. See Oickle at pp. 341-345.
[7] The contemporary confessions rule is reflected in the decisions of the Supreme Court of Canada in Oickle, R. v. Spencer (2007), 2007 SCC 11, 217 C.C.C. (3d) 353 and R. v. Singh (2008), 2007 SCC 48, 225 C.C.C. (3d) 103. Oickle clarified certain categories of cases, or factors for the purpose of determining voluntariness. They are as follows:
(i) threats, promises or inducements; (ii) the existence of oppressive circumstances; (iii) the lack of an operating mind; and (iv) the use of extreme police trickery.
[8] While these factors are helpful markers in the voluntariness analysis, the critical question is whether the will of the accused was overborne by the conduct of the police. There is no onus (evidentiary or otherwise) on the accused person to bring his/her case within any of the Oickle categories. The onus is on the Crown to establish beyond a reasonable doubt that the will of the accused was not overborne. See R. v. Alas, 2016 ONSC 5709 at para. 31.
[9] The confessions rule as now stated in Oickle requires that the first three noted factors be considered together and that the analysis of voluntariness be contextual. The police trickery doctrine is a distinct inquiry, which, though still related to voluntariness, has a more specific objective of maintaining the integrity of the criminal justice system. See Oickle at para. 65.
(i) threats, promises or inducements
[10] I am satisfied beyond a reasonable doubt on the record before me on the voir dire that no person in authority or otherwise offered a threat, promise or inducement to the defendant to give a statement to the police on May 27, 2013 or at any other time. It is true that for a very brief period of time when the police entered the defendant’s residence the day before on May 26, 2013, two uniformed police officers drew their service revolvers when the defendant did not comply with their demands to show them his hands which were concealed by a pillow. However, once the defendant complied with their demands, the police holstered their service revolvers. Apart from this incident there was never any threat of violence shown to the defendant by the police. The defendant himself acknowledges at the beginning of his statement at pp. 4-5 that no one threatened him, mistreated him or promised him anything if he spoke to the police and that he was speaking to the police of his own free will.
(ii) the existence of oppressive circumstances
[11] As part of the contextual analysis of all the evidence, a court considering voluntariness must also consider whether the confession was a product of oppression. Oppression, like inducements, is a question of the circumstances. Also, as with inducements, the oppression must be a product of the conduct of the police and must be connected to the making of the statement. Oppressive conditions that are not caused or created by the state are irrelevant. For example, oppression arising from the accused’s own anxieties, absent state actions, will not invalidate a confession. See R. v. Fernandes, 2016 ONCA 772 at para. 36.
[12] The presence of oppressive circumstances, standing alone, does not necessarily render a statement involuntary. The touchstone of the voluntariness rule is whether the will of the accused person is overborne by the conduct of the police and the circumstances of the accused. It follows that not all privations lead inexorably to a conclusion that the accused’s will has been overborne. It will depend on all of the circumstances. See R. v. Alas [2016] O.J. No. 4738 at para. 43.
[13] I am satisfied beyond a reasonable doubt that there were not oppressive circumstances in existence when the police took the statement from the defendant. Before Det. Margetson began the interview with the defendant, he was advised that the defendant had consulted with duty counsel, had the opportunity to sleep, had been fed and had an interpreter present for the interview. The only evidence on the record before me on the voir dire regarding the defendant’s comfort level is the statements he made in the interview. The defendant did not testify on the voir dire.
[14] During the interview the defendant never said he was cold or tired. There is no evidence in the record on the voir dire as to how long the defendant slept. He clearly was provided with an opportunity to do so for several hours in the police cell. While the defendant did say he had a mental health problem and that his body hurt and that he was feeling bad, the defendant never asked for any medication or any medical assistance. The defendant’s main concern was that he was a smoker and he needed to smoke.
[15] I am satisfied beyond a reasonable doubt that the defendant’s will was not overborne by the circumstances in which he found himself, nor by anything said or suggested to him by the police officers he encountered.
(iii) Operating Mind
[16] For a confession to be voluntary it must be the product of an operating mind. If the accused is incapable of speaking freely, based upon the absence of having an operating mind, any statement given cannot be held to be voluntary.
[17] In R. v. Whittle, [1994] 2 S.C.R. 914, Sopinka J., writing for the court, states at para. 45:
The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.
[18] This formulation was adopted in Oickle at para. 63.
[19] In my view, the defendant had sufficient cognitive ability for an operating mind. The 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. See Whittle at para. 37.
[20] Contrary to the defence submissions, the defendant presented himself in the police interview as someone who did have sufficient cognitive capacity to understand what he was saying and that he was saying it to police officers, who could use it to his detriment in proceedings against him.
[21] At p. 4 of the interview, the defendant clearly responded in the affirmative when asked if he understood that he was not obliged to say anything unless he wished to do so, but that whatever he said may be given in evidence. The defendant did raise the issue of his mental health at pp. 12-13 of the interview. He said he has a mental problem and he takes medication. Det. Margetson asked him about it and how it affects him. The defendant said he becomes suffocated and he goes outside and simply wanders. He said “I just wander and after I become aware then I return”. As noted, the defendant also said at p. 29 he was feeling bad and his body hurts. The defendant also made other comments later at the end of the interview at pp. 33, 36 and 38-39 regarding his mental health situation and the fact he had mental stress. Among other things, he said that he has a difficult life because of his mental health situation.
[22] On the record before me on the voir dire, I have only the defendant’s description in his statement to the police about how his mental and other health challenges affect him. Clearly he takes some medication for his mental health issues, whether that is for stress, anxiety or some other reason. It was not made clear on the voir dire. In my view, those challenges did not prevent him from possessing the limited degree of cognitive ability required for an operating mind. In the video of his interview, the defendant appeared responsive to the questions asked of him. He appeared aware of his surroundings. He did not appear to be suffering from any mental illness. The defendant’s main concern, as noted previously, appeared to be that he was a smoker and that he needed to smoke.
[23] In all the circumstances, I am satisfied beyond a reasonable doubt that the defendant had an operating mind when speaking to the police in his interview with them. He had sufficient cognitive capacity to understand what he was saying and to comprehend that he was saying it to police officers who could use the evidence in proceedings against him.
(iv) Other Police Trickery
[24] There was nothing on the record that would engage an assessment of this aspect of the confessions rule.
Conclusion
[25] The Crown has established beyond a reasonable doubt that the will of the defendant to choose whether to speak to the police was not overborne by threats, promises or inducements, oppressive circumstances, or the lack of an operating mind. In addition, there was no police trickery in the taking of the statement. For all these reasons, I am satisfied on the basis of all the circumstances, that the Crown has proved the voluntariness of the defendant’s statement beyond a reasonable doubt.
III. Section 10(a) and 10(b)
[26] The defence submits that the defendant’s rights under s. 10(a) and s. 10(b) of the Charter were violated in the course of his interview with Det. Margetson.
[27] Section 10(a) of the Charter guarantees an individual has the right to be promptly informed of the reasons for his detention or arrest. The purpose of s. 10(a) is two-fold. First, an individual is not obligated to surrender to an arrest if they do not know why they are being arrested. Second, an accused person cannot meaningfully make a decision regarding the exercise of their right to silence and their s. 10(b) right to counsel unless they understand the extent of their jeopardy. See R. v. Evans, [1991] 1 S.C.R. 869.
[28] Section 10(b) of the Charter provides protections when a person is either arrested or detained by the police. It affords an accused the opportunity to retain and instruct counsel without delay and it requires that the detainee be informed of that right.
[29] Generally, s. 10(b) of the Charter provides a detainee with one phone call or consultation with counsel. However, the authorities have recognized that there may be some situations when a second consult with counsel will be necessitated by s. 10(b). In R. v. Sinclair, 2010 SCC 35 the Supreme Court of Canada, at paras. 51-52, discussed the examples that would result in the right to a second consultation. They include: (i) a reason to question whether the detainee understood the s. 10(b) rights or the advice of counsel and (ii) a change in jeopardy, where the investigation takes on a more serious turn as events unfold.
[30] When the police commenced their interview with the defendant on May 27, 2013, the police had facilitated the defendant speaking with duty counsel with the assistance of a Tigrinya interpreter. Prior to speaking with duty counsel, the police had advised the defendant of the reason for his arrest – indignity to a dead human body. This charge was explained to him twice in English and once through a Tigrinya interpreter. Duty counsel was also advised by the police of the charge the defendant was facing. After speaking to duty counsel, the defendant did not complain about the counsel he had received or assert a desire to speak to counsel of choice or any other counsel again. In my view, at the time the police commenced their interview with the defendant on May 27, 2013, the police were in compliance with s. 10(a) and s. 10(b) of the Charter.
[31] However, in my view the defendant’s s. 10(b) rights to counsel were violated by the police in the course of their interview with him in two ways:
(i) when the defendant provided a reason for the police to question whether he understood his s. 10(b) rights or the advice of counsel; and (ii) when the defendant’s jeopardy changed.
[32] I will deal with each circumstance separately.
(i) the defendant’s understanding of his s. 10(b) rights or advice of counsel
[33] At the beginning of the interview, at p. 3 of the transcript, when asked if he had spoken to a lawyer either through an interpreter or directly since he had been at the police station, the defendant replied that he had spoken with someone but he was not sure whether it was a lawyer or not. When Det. Margetson then asked if it was the defendant’s understanding that he got legal advice from somebody that he spoke to on the phone, the defendant said that he had spoken to someone. The defendant said “I spoke with somebody but I’m not sure it was a lawyer or not.” The defendant then said that person told him that they would appoint him a lawyer when he went to court. Det. Margetson then said to the defendant that it was his understanding that the defendant had spoken to a lawyer through an interpreter. The defendant responded by saying “okay.”
[34] I accept that s. 10(b) does not require the police to monitor the quality of the advice a detainee receives once contact is made with a lawyer. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. Unless a detainee indicates dissatisfaction with the advice received, the police are entitled to assume that the detainee has successfully exercised the right to counsel and therefore can continue the questioning.
[35] That being said, there is also ample authority that what the police are required to say and do in a particular case to fulfill their duties under s. 10(b) will depend on what the accused says and does and what the police could reasonably surmise in the circumstances. See. R. v. Badgerow, 2008 ONCA 605, at para. 45.
[36] Although the police cannot be expected to be mind readers, they are not entitled to ignore statements made by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights. Rather, where an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights. See Badgerow, at para. 46.
[37] On the facts of this case, in my view, the exchange between the defendant and Det. Margetson quoted earlier, triggered additional implementation duties on the police to provide the defendant with a second consultation with counsel. In my view, viewed on an objective basis, a further opportunity for the defendant to consult a lawyer was necessary to fulfill the purpose of the defendant’s s. 10(b) rights.
[38] The defendant’s apparent confusion about whether the person he spoke to was a lawyer and that this person’s advice was that they would appoint the defendant a lawyer when he went to court, were statements that raised a reasonable prospect that the defendant had not exercised his s. 10(b) rights. This change in circumstances required the police to provide the defendant with a further opportunity to consult with a lawyer. Their failure to do so, violated the defendant’s s. 10(b) rights.
(ii) the defendant’s change in jeopardy
[39] Additionally, I am of the view that the defendant’s s. 10(b) rights were violated when Det. Margetson began questioning of the defendant that went beyond an exploratory stage in connection with the related but significantly more serious offence of murder. This change in jeopardy required the police to afford the defendant a second opportunity to speak to counsel. Their failure in doing so breached the defendant’s s. 10(b) Charter rights.
[40] At the bottom of p. 28 of the transcript Det. Margetson asked the defendant “If I was to tell you she is dead, what can you tell me about that?” Det. Margetson then asked the defendant a series of questions relating to Ms. Ghirmay’s death. In cross-examination on the voir dire, Det. Margetson agreed that he was asking questions about the murder investigation.
[41] Later at p. 37 of the transcript, Det. Margetson asked the defendant “Adonay, did you kill her?” Det. Margetson also agreed in cross-examination that that question was a facet of the murder investigation.
[42] The leading case in Ontario on the duty of police to re-advise detainees of their rights during an interview/statement scenario is the Ontario Court of Appeal’s decision in R. v. Sawatsky (1997), 35 O.R. (3d) 767. In that case, the court held that the police must reiterate the right to counsel if they want to ask questions that go beyond an exploratory stage in connection with a related but significantly more serious offence, or a different and unrelated offence. See also R. v. J. B., 2015 ONCA 684 at para. 22.
[43] While the police, in the course of the investigation, do not have to reiterate the right to counsel every time that the investigation touches a different offence, they must restate the accused’s right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different or unrelated offence or a significantly more serious offence than the one contemplated at the time of the warning. See R. v. Evans at pp. 892-893.
[44] In my view by engaging in the questioning referred to above in relation to the murder investigation without reiterating the defendant’s rights to counsel, Det. Margetson violated the defendant’s s. 10(b) rights. Those questions went beyond an exploratory stage in connection with a related but significantly more serious offence of murder.
Conclusion
[45] For all these reasons, I am satisfied that the defendant’s rights under s. 10(b) of the Charter were violated in the course of his interview with the police on May 27, 2013.
IV. Should the evidence be excluded under s. 24(2) of the Charter?
[46] In R. v. Grant, 2009 SCC 32 at paras. 72-82 the Supreme Court of Canada set out three factors for consideration in determining whether the administration of justice would be brought into disrepute: a) the seriousness of the Charter-infringing state conduct; b) the impact of the breach on the defendant’s Charter-protected interests; and c) society’s interest in an adjudication of the case on the merits.
[47] The seriousness of the Charter-infringing state conduct focuses on the actions of the police. In this case there was no bad faith on the part of the police. As I indicated in my reasons regarding the voluntariness of the statement, the police did not offer a threat, promise or inducement to the defendant to give a statement. Nor was the defendant’s will overborne by anything said or suggested to him by the police he encountered. Det. Margetson did not wilfully fail to re-advise the defendant of his right to counsel because he did not want to shut down his conversation with the defendant as alleged by the defence. Nor, in my view, did Det. Margetson wilfully fail to re-advise the defendant about his right to counsel, when his jeopardy changed, in the hope of eliciting information that the defendant had killed Ms. Ghirmay.
[48] That being said, police conduct in obtaining statements has long been strongly constrained. The preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused. See Grant at para. 93. The failure to re-advise the defendant of his right to counsel, while not wilful, was nonetheless serious. In my view, the nature of the state conduct favours exclusion of the evidence.
[49] Dealing next with the second factor, the impact of the breach on the Charter-protected interests of the defendant. The failure of the police to re-advise the defendant of the right to counsel undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual’s interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement. See Grant at para. 95. On the facts of this case, this factor favours exclusion of the evidence.
[50] The third factor, society’s interests in an adjudication of the case on the merits, favours admission of the evidence. Society obviously has a strong interest in the adjudication of this case on its merits. The charges in this case of first degree murder and indignity to a dead human body are most serious. On the other hand, the significance of this factor is attenuated when considering the reliability of the evidence. Just as involuntary confessions are suspect on grounds of reliability, so may, on occasion, be statements taken in contravention of the Charter. See Grant at para. 97.
[51] There is no absolute rule of exclusion of Charter-infringing statements under s. 24(2) as there is for involuntary confessions at common law. However, as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter on the ground that admission on balance would bring the administration of justice into disrepute. I believe that should be the result in this case as well. On balance, having considered the three Grant factors together and having regard to all the circumstances, I am satisfied that the admission of the defendant’s statement of May 27, 2013 would bring the administration of justice into disrepute.
[52] The statement is therefore excluded under s. 24(2) of the Charter and is inadmissible.
M. F. BROWN J. Released: August 9, 2018