COURT FILE NO.: CR-17-6548 DATE: 20190415 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – HAKEEM MOHAMED and ADRIAN SCOTT Defendants

Amy Barkin, for the Crown Uma Kancharla for the Defendant, Hakeem Mohamed Jeffrey I. Halberstadt for the Defendant, Adrian Scott

HEARD: April 5, 2019

RULING on blended voir dire re: admissibility of statement by the defendant

MCKELVEY J.:

Introduction

[1] The defendant, Hakeem Mohamed, is charged with sexual assault. He also is charged with a variety of firearm offences which relate to his alleged possession of a handgun. The alleged sexual assault occurred on January 12, 2017 at a hotel in York Region. The complainant alleges that Mr. Mohamed sexually assaulted her. She did not implicate Mr. Mohamed, however, in any firearms offences. There were other individuals who also were in the hotel suite on January 12, 2017. The complainant did implicate others in the alleged possession of a handgun. It is also significant to note that when police originally attended to investigate on January 12, 2017, they stopped a taxi van which was observed leaving the hotel. There were two individuals in the vehicle and a firearm was located in the vehicle. The defendant, Mr. Mohamed, however was not in this vehicle. It was not until a cellphone that was seized on January 12, 2017 was examined that a photo was identified showing the defendant, Mr. Mohamed, in possession of the gun. This information did not come into the possession of the police until well after Mr. Mohamed was arrested and interviewed.

[2] Following the arrest which occurred on January 12, 2017, police continued their investigation to identify the individual who they believed was at the Spring Hills Hotel on January 12, 2017 and who was the subject of the complaint of sexual assault. The defendant, Mohamed, was identified by the police and arrested for sexual assault on February 2, 2017. He was interviewed by the police on that day.

[3] Two applications have been brought in relation to Mr. Mohamed’s statement to the police on February 2, 2017. The Crown has brought an application seeking admission of the statement. In order to admit the statement, the Crown is required to establish beyond a reasonable doubt that the defendant’s statement was voluntary. The defendant denies that the statement was voluntary and has also brought an application to exclude the statement under s. 10(a), s. 10(b) and s. 24(2) of the Charter.

[4] With the consent of both parties, both applications were heard together. During the voir dire, the following witnesses were called by the Crown:

1. Police Constable Warren Owen. Officer Owen was the arresting officer of Mr. Mohamed and gave him his s. 10(b) rights advice as well as a caution.
2. Detective Constable Ashley Smith. Detective Constable Smith was present at the time of the defendant’s arrest and conducted an interview of him at the police station on February 2, 2017.
3. Detective Sergeant Stephen Yan. Detective Sergeant Yan was responsible for the human trafficking team and in particular was responsible for planning the arrest of the defendant, Mohamed, as well as assigning Detective Constable Smith to be responsible for his interview.
4. Detective Constable Andrew Salmon. Detective Constable Salmon is the officer in charge of the investigation and gave evidence with respect to the police investigation that led to the identification of the defendant, Mohamed, and his subsequent arrest. He also gave evidence with respect to the seizure of the cellphone from Mr. Mohamed’s co-accused and the steps that were taken in order to obtain a warrant to search that phone.
5. Police Constable Ralph Crombie. Officer Crombie was involved in the arrest of Mr. Mohamed on February 2, 2017, and was also responsible for some of the rights advice which was given to him following his arrest.

[5] In addition to the evidence of the police officers noted above, a video was also entered into evidence during the voir dire which showed the defendant, Mohamed, being placed in the police cruiser following his arrest and being given his s. 10 rights and cautions.

[6] No evidence was called by the defence during the voir dire.

[7] During the course of argument, the Crown advised that it is not relying on any significant admissions by the defendant in the statement he gave to police. Instead, the Crown relies on the assertions by Mr. Mohamed that he was not at the hotel in question on January 12, 2017. The Crown intends to rely on the statement as evidence going to Mr. Mohamed’s credibility.

Was Mr. Mohamed’s statement to police on February 2, 2017 voluntary?

[8] The leading case in this area of the law is the Supreme Court of Canada decision in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The confessions rule is a longstanding common law principle. The underlying rationale is that a confession should not be received in evidence if it is made under circumstances that raise a reasonable doubt about its voluntariness. This is reflected in Oickle, where Justice Iacobucci states:

Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[9] The Oickle decision establishes that it is the Crown who must establish beyond a reasonable doubt that a statement is voluntary.

[10] The Oickle decision also makes it clear that a court must consider all of the circumstances surrounding the giving of the statement in a contextual fashion. This is reflected in the comments of Justice Iacobucci when he states:

Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above.

[11] The factors a court will take into account in considering voluntariness include threats or promises, oppression, the requirement for an operating mind and police trickery.

[12] In the present case, the defence is not relying on any allegation of oppressive atmosphere, police trickery, or that Mr. Mohamed did not have an operating mind. The defence position is that there were, however, threats or inducements which were inappropriate during the course of the interview and which render the statement involuntary. I agree with the defence that there is no basis to assert that there was an oppressive atmosphere, police trickery or that the accused did not have an operating mind. The interview itself was conducted in a respectful way by Officer Smith. The accused was offered food during the course of the interview. Through the answers given by the accused, it is apparent that he did have an operating mind.

[13] The defence refers to page 4 of the transcript where Officer Smith states as follows:

DET SMITH: So, I know that you spoke to some – some other officers that were there when you were arrested; at the courthouse down in Toronto and stuff like that. If anybody else has, you know, influenced you to talk or anything like that, I don’t want that to influence what we’re going to do. Do you understand that? Okay. So, do you have any idea about where any of this stuff is stemming from, or is this total left field for you? MR. MOHAMED: What do you mean? DET SMITH: Like – like the sex assault thing, like, being accused of sexual assault is obviously pretty serious, right? MR. MOHAMED: Yeah. DET SMITH: Anything coming to mind on this, or…. MR. MOHAMED: No.

[14] The defence argues that the comments made initially by Officer Smith in this portion of her evidence are ambiguous. In my view, however, Officer Smith is simply reinforcing the advice which was given to the defendant previously that he was not obliged to make a statement. There is nothing in this exchange which would call into question the voluntariness of the statement.

[15] The defence also takes issue with questions asked by Officer Smith starting at page 12 of the transcript, which reads as follows:

DET SMITH: Okay, well I can check on that when we bring you back downstairs. For sure. So, the sex assault thing. Tell me – tell me why somebody’s saying this about you. MR. MOHAMED: I don’t know. DET SMITH: You don’t seem like that kind of guy to me. I’ve dealt with lots of guys and all sorts of bad sexually deviant things. You don’t seem like that guy. MR. MOHAMED: What courthouse is this – is everything going to be happening at?

[16] The defendant takes issue with Officer Smith referring to the alleged behaviour being “sexually deviant”. However, I do not see that this comment is inappropriate and in any event, it does not provoke a response from Mr. Mohamed.

[17] The next portion of the transcript which the defence objects to is found at page 15 of the transcript and reads as follows:

DET SMITH: So there’s no doubt in my mind that you were there that night. That’s not what I’m here to – to debate with you. I know you were there. Like I said, there’s two versions of events, and this is your opportunity to – to set the record straight about what you feel like happened that night. ‘Cause if not, all I have is what this other person’s saying about what you did. DET SMITH: Did you sexually assault somebody at the hotel that night? MR. MOHAMED: No. DET SMITH: Okay, then tell me what did happen if that’s not the case. MR. MOHAMED: I don’t know what happened, ‘cause I wasn’t there.

[18] The defence objects to Officer Smith’s reference that this was Mr. Mohamed’s opportunity “to set the record straight” about what happened that night. In my view, Officer Smith did not cross the line at this point in the interview. She did not suggest that this was the “only” opportunity nor did she suggest that Mr. Mohamed would not be believed if he did not tell his side of the story to the police. Instead she encouraged him to tell his side of the story because otherwise, all she would have is what the complainant was saying about what he did. In my view this reflects fair comment by the police officer.

[19] The next portion of the transcript which is relied upon by the defence is found starting at page 17 of the transcript, where the following exchange takes place:

DET SMITH: Okay. You sit for a minute while I’m gone and think, okay? This is what I want you to think about. It’s one thing, like, I’ve seen your record, I see the stuff you’ve been involved in. It’s one thing to go to jail and, you know, you’ve robbed somebody, you’ve breached a curfew, whatever, the stuff you’ve pled guilty to. Totally different to being there and people thinking you’re a sex offender, right? MR. MOHAMED: Yeah. DET SMITH: I want you to think about that for a minute and then think what if you want to tell me your side of the story, that maybe this is – maybe this is a big misunderstanding. Okay? MR. MOHAMED: All right. DET SMITH: No seafood. I’ll be back. The video’s still on while we’re out, okay? DET SMITH: Okay, we’ve got food on the way. No seafood. Sorry, didn’t mean to kick you. MR. MOHAMED: It’s all right. DET SMITH: Okay. So have you thought about it? MR. MOHAMED: About what? DET SMITH: About what you’re being accused of. MR. MOHAMED: Uh, no. DET SMITH: You didn’t think about it. So you said you didn’t sexually assault anybody that night. MR. MOHAMED: Um-hm. DET SMITH: So, what – what did you do that night? MR. MOHAMED: Nothing. DET SMITH: What do you mean, nothing? Like, did you do – did you go anywhere? MR. MOHAMED: I went home.

[20] I agree with the defence that Officer Smith’s comments at this point were inappropriate. She draws a distinction between other offences the defendant may have been involved in previously and sexual offences. Her suggestion that it is one thing to go to jail having robbed someone as compared to being a sex offender contains a not so subtle message that sex offenders are treated harshly in jail and therefore he should be more forthcoming in providing information as to what happened that evening with the complainant. I interpret these comments as an implied threat that he needs to cooperate with police by providing information or he risks having bad things happen to him in jail. It is significant to note in this regard that the interview took place before Mr. Mohamed’s bail review which he knew would not take place until the following day. The Crown argues that there is nothing in the officer’s comment to suggest that this was meant as a threat. The Crown further argues that in any event the officer’s comments did not have any impact on the defendant because when the officer returned, Mr. Mohamed denied thinking about the officer’s comments. However, it is apparent from the officer’s next set of questions that Mr. Mohamed volunteered to Officer Smith that he was at home that night, which led the officer to explore who lived at his mother’s home with him. This supports that in fact Mr. Mohamed might have been induced by the comments to answer the officer’s questions.

[21] In Officer Smith’s evidence, she was asked about this section of the transcript on cross-examination. She denied that her comments constituted an implied threat. She emphasized that this was not what she was trying to do. Instead she stated that she was trying to give Mr. Mohamed an opportunity to explain his side of the story. Having said that, however, I have concluded that the comments of Officer Smith were inappropriate and would reasonably be interpreted by Mr. Mohamed as suggesting the need to answer questions about his activities that night if he wanted to avoid some significant problems in jail. His willingness to answer further questions as to where he was that evening raises in my mind a reasonable doubt as to whether the will of Mr. Mohamed had been overborne at that point.

[22] For these reasons, I have concluded that there is a reasonable doubt about the voluntariness of Mr. Mohamed’s statement from that point forward in the interview.

Was there a breach of Mr. Mohamed’s s. 10(a) and 10(b) Charter rights?

[23] In the present case the defendant, Mohamed, was placed in a police cruiser following his arrest. There is a video from the police cruiser which shows that Mr. Mohamed was advised that he was being arrested for sexual assault. He was read his s. 10(b) rights to legal counsel and he advised that he did want to make a telephone call to his lawyer. He was also given a caution by police Constable Crombie en route to the police station. I am satisfied that there would be no basis to conclude that Mr. Mohamed’s Charter rights had been violated if the police were focused solely on the sexual assault charge for purposes of their investigation. Mr. Mohamed exercised his right to counsel prior to giving his statement.

[24] The issue before me in this case is whether Mr. Mohamed’s s. 10(a) and 10(b) Charter rights were violated when Officer Smith proceeded to question Mr. Mohamed about the firearm charges in the latter part of his interview. The defence takes the position that there was an ongoing investigation into the firearms charges. The police had evidence that Mr. Mohamed was in the hotel room at around the same time as the firearm was reported to have been seen by the complainant. In these circumstances the defence argues that Mr. Mohamed should have been advised that he would be questioned about the firearm and that this formed part of his jeopardy going into the interview.

[25] The Crown argues that at the time of the interview there was no evidence that Mr. Mohamed had any involvement with the firearm and therefore there was no need to advise him of any potential jeopardy in connection with the firearm. The Crown asserts that the questions posed by Officer Smith were directed to Mr. Mohamed as a potential witness to see whether he observed anything which would be relevant to charges against other persons who were present in the hotel room. The Crown argues that in these circumstances there was no need to specifically advise him of any potential jeopardy.

[26] In her evidence on the voir dire, Officer Smith testified that at the time of the interview she was not aware of any evidence linking Mr. Mohamed to the firearm. She agreed on cross-examination, however, that she was aware that another person in the hotel room at around the same time was accused of having a firearm. She asked questions of Mr. Mohamed about the firearm because she felt that he might have some information relevant to the police investigation.

[27] The questions directed to Mr. Mohamed with respect to the firearm were prefaced by a number of questions by Officer Smith as to whether the two other persons known to be in the hotel room would try to “pin” something on him. The relevant portions of the transcript starting at page 31 read as follows:

DET SMITH: I’m just saying, if there was charges and somebody could pin something on you, do you think they would wear it, or do you think that they would say, “Wasn’t me, it was him.” MR. MOHAMED: Probably wear it. DET SMITH: Yeah? That’s pretty decent, then, friends, right? MR. MOHAMED: Okay, so you never told me what these guys got charged with. DET SMITH: They got a bunch of charges. MR. MOHAMED: For what? DET SMITH: What do you think they got charged with? MR. MOHAMED: Probably [inaudible], right? DET SMITH: Yeah, there’s some of that. There’s some other stuff, too. What else do you think? MR. MOHAMED: [inaudible] I’m asking you. DET SMITH: Do you remember anybody havin’ a gun that night? MR. MOHAMED: No. DET SMITH: No? I know that you have a conviction [inaudible] a weapon, right? Was that a gun? Back in the day when you pled guilty? MR. MOHAMED: To what? DET SMITH: Hmm? MR. MOHAMED: To what? DET SMITH: You – no, but you have it on your – on your criminal record. You pled guilty to – or were found guilty of – of possessing a weapon? Was that a – was that a gun? Do you know what I’m talking about? MR. MOHAMED: No. I don’t remember that. DET SMITH: You don’t remember that? But do you – do you know if you have any convictions for carrying firearms? MR. MOHAMED: No, I don’t. DET SMITH: You don’t? Have you been charged with stuff like that in the past? MR. MOHAMED: Um-hm. DET SMITH: Okay, so if it was a weapon, what do you think it would’ve been, if it wasn’t a firearm? MR. MOHAMED: I don’t know, maybe like a fake firearm, or like a knife or something? I don’t know. DET SMITH: Okay. So there’s – you don’t remember anybody having a gun that night? MR. MOHAMED: No. DET SMITH: What about the car that you have today? MR. MOHAMED: What about it? DET SMITH: Are we going to find anything in the car? MR. MOHAMED: I don’t know. [inaudible] search the car? DET SMITH: [inaudible]. MR. MOHAMED: Okay, you going to find out. DET SMITH: Dope? MR. MOHAMED: No.

[28] In R. v. Borden, [1994] 3 S.C.R. 145, the police failed to tell Mr. Borden that he was a suspect in two sexual assaults. He was only arrested for one sexual assault but provided a consent for a blood sample for purposes of a police investigation that was primarily linked to an earlier sexual assault investigation. The Supreme Court found that the accused had the right to be informed of this dual investigative detention and that the rights of the accused under s. 10(a) of the Charter to be informed of the reasons for his detention were therefore violated. The court went on to note that the rights in s. 10(a) and 10(b) of the Charter are linked. One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention is so that a person may make an informed choice whether to exercise the right to counsel and, if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy.

[29] This point was also emphasized in the Ontario Court of Appeal decision in R. v. Sawatsky, [1997] O.J. No. 3561. In that case the court noted that when there is more than one reason for detention, they must all be disclosed. The court went on to state that disclosure of the reason for detention will also reveal the subject matter about which the police wish to question or otherwise investigate the detained person. Compliance with s. 10(a) of the Charter will, in most cases, provide all necessary information as to both the reason for the detention and the subject matter of the investigation. The link between a detained person’s need to understand the extent of his or her jeopardy and the effective exercise of the right to counsel, provides the key to the determination of when the police will be required to reiterate the right to counsel in the course of an ongoing detention.

[30] The questions asked by Officer Smith in my view go beyond the objective of simply asking Mr. Mohamed if he has any information relating to the possession of a firearm by a third person. The questions are prefaced by asking Mr. Mohamed if the other people who were present in the hotel would try to “pin” something on him and quickly moved into his knowledge of the firearm. The questions then focus on his own record for possession of a weapon. The clear inference that I take from these questions is that Officer Smith is focusing on whether there is any reason to believe that Mr. Mohamed might himself have had possession of the firearm, or to use the potential for a firearms charge as “leverage” to get more information about the firearm because of his potential jeopardy. I conclude in these circumstances that Mr. Mohamed should have been advised that he was also going to be asked during the interview about his possible possession of a firearm. It is apparent that this information might well have affected his decision to participate in an interview. A sexual assault charge when combined with a firearm allegation might well be considered by an accused to carry substantially greater risk than a sexual assault charge on its own. This conclusion is supported by the fact that while being transported to the police station Mr. Mohamed asked the police officers in the cruiser on two occasions to repeat the reason for his arrest and was told that it was for sexual assault. It is clear that Mr. Mohamed wanted to understand the exact nature of his jeopardy. The failure to advise Mr. Mohamed about all of the reasons for his detention constitutes a breach of his s. 10(a) rights under the Charter. The police also ought to have reiterated his right to counsel on the issue of the firearm possession and in my view their failure to do so constitutes a s. 10(b) violation of the Charter.

[31] Having found both violations of s. 10(a) and s. 10(b) of the Charter I must then consider whether the evidence of the statement should be excluded under s. 24(s) of the Charter. The factors in this regard as per R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, involve a consideration of the following: (a) the seriousness of the Charter infringing state conduct, (b) the impact on the Charter protected interests of the accused, and (c) society’s interest in an adjudication on the merits.

[32] With respect to the seriousness of the Charter infringing state conduct, the need to advise a suspect of his or her jeopardy is fundamental. I do not view the conduct of Officer Smith as deliberate or willful; however, as noted in the Grant decision, ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith. I therefore conclude that this factor favours the exclusion of the evidence.

[33] With respect to the impact on the Charter protected interests of Mr. Mohamed, the Supreme Court in Grant notes that the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence. As noted in Grant at para. 95, the failure to advise of the right to counsel undermines fundamental Charter rights. On the other hand it is apparent that in response to the questions of Officer Smith, Mr. Mohamed did not make any admissions which tends to lessen the impact on his Charter protected interests. On balance I conclude that this factor moderately supports exclusion of the evidence.

[34] With respect to society’s interests in adjudicating a trial on the merits, the importance of the evidence to the prosecution’s case is a relevant factor. In this regard it would not appear that the information obtained from Mr. Mohamed would gut the prosecution case. The main purpose for which the Crown seeks admission of the evidence is in connection with the defendant’s credibility. On the other hand as noted in Grant, society generally expects that a criminal allegation will be adjudicated on its merits. This factor moderately supports admission of the evidence.

[35] On balance I have concluded that the balance in this case favours exclusion of the evidence. This is consistent with the comments of the Supreme Court in Grant, where they state at para. 92 that,

The three lines of inquiry described above support the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.

[36] One final issue raised by the Crown is whether the entire statement of Mr. Mohamed should be excluded from evidence. The Crown argues that if there has been a Charter violation, the appropriate remedy is to excise that portion of the statement from the point of the Charter violation. In the present case that would mean that most of the statement would be admissible up to the point when Officer Smith questions Mr. Mohamed about the firearm. There is support for this position in the Sawatsky case. In that decision, the Ontario Court of Appeal commented that the statements made to police before they were obliged to restate the appellant’s 10(b) rights were not tainted by a constitutional violation and could not be excluded under s. 24(2) of the Charter. However, in that case there were two separate fires being investigated without any overlapping connection between the two charges. As pointed out by the defence in the present case, the difficulty is that the sexual assault and firearm offences are closely connected as they are alleged to have taken place in the same hotel room and at around the same time. Answers to questions about the sexual assault therefore have the potential to impact the firearm charges as well. There are therefore significant links between the questions asked by Officer Smith in connection with the sexual assault charges and those relating to the firearm charges. These questions focus, for example, on Mr. Mohamed’s presence in the hotel and his explanation for what he was doing that evening. Because of these links, it is apparent that the constitutional violation in fact taints most portions of the interview. I have therefore concluded in these circumstances that it is not appropriate to simply exclude the portions of the statement which focus on the alleged firearm offence.

Conclusion

[37] For the above reasons I conclude that Mr. Mohamed’s statement given on February 2, 2017 should be excluded from the evidence at this trial.

Justice M. McKelvey

Released: April 15, 2019