Her Majesty the Queen v. Abdirizaq Yabarow, 2019 ONSC 3416

COURT FILE NO.: CR-18-50000385-0000 DATE: 20190613 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – ABDIRIZAQ YABAROW

COUNSEL: Paul Zambonini and Gus Kim, for the Crown Jennifer Penman and Tania Bariteau, for Abdirizaq Yabarow

HEARD: May 27-30, 2019

By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.

M. Dambrot J.:

[1] Abdirizaq Yabarow is charged with the second degree murder of Abdinasir “Abdul” Hussein, who was discovered dead in his apartment on the morning of October 4, 2017. He is being tried by me, with a jury. The Crown brings an application for a determination that two statements of the accused were made voluntarily and are admissible in evidence at the instance of the Crown. The first of these statements was made before the police knew that there had been a homicide. The second statement was made upon the arrest of the accused for this offence.

BACKGROUND

[2] The Crown alleges that the accused and several other men were socializing at the apartment of the deceased at approximately 8:00 p.m. on October 3, 2017. The accused and Mohamed Gafow got into an argument, which ended with each man assaulting the other, causing injuries. After the altercation, all of the guests other than the accused departed, leaving the accused alone with the deceased. The accused almost certainly left the residence at 11:43 p.m. A friend and neighbour of the deceased found the deceased lying on the floor of his apartment amidst broken bottles and blood at around 7:30 a.m. on October 4, 2017. The cause of death was found to be multiple sharp force injuries. The deceased had more than 100 such injuries to his face.

THE EVIDENCE

The First Statement

[3] On October 4, 2017, at about 1:15 a.m., the accused approached a TTC bus at Finch Avenue West and Weston Road in Toronto and asked the driver to call for help.

[4] Victoria Johns and Andrew Bradley, paramedics employed by Toronto Paramedic Services, arrived on scene at 1:22 a.m. Ms. John was the driver of their ambulance, and Mr. Bradley was the attendant. The accused approached Mr. Bradley on foot. When asked about the accused’s level of intoxication, Mr. Bradley said that he had a slightly unsteady gait, but was alert to who he was and where he was. Mr. Bradley helped the accused into the ambulance, placing him in the jump seat. He observed that the accused had an obvious injury to his face, a laceration and hematoma above his left eye and lacerations on his hands. The accused asked Mr. Bradley to help him, but also said to help others. Mr. Bradley asked the accused what had happened in order to determine how the accused got hurt. He did so in an effort to figure out what injuries there might be beyond what he could see, including internal injuries. The accused told him that he had been at a friend’s house when people he didn’t know came in and began assaulting him and his friend. He said that he left to find help. Mr. Bradley thought that he might have asked where this happened and whether anyone else was hurt, but if he did he received no responses. He did not ask who the attackers were. Mr. Bradley testified that he and the accused spoke only in English and that he had no difficulty understanding the accused or being understood by him.

[5] Ms. Johns testified that she entered the back of the ambulance after the accused was seated. She said that the accused did not provide information about how his injuries came about, and became irritated or agitated with them for asking. At some point, the paramedics were joined by police officers who also asked questions of the accused. Ms. Johns said that she and Mr. Bradley provided bandaging and ensured that the accused’s injuries were clean and taken care of before the police officers arrived.

[6] The paramedics left the area of Finch and Weston Road at around 1:46 a.m. and drove the accused to a hospital. Mr. Bradley spoke to the accused the whole way, trying to get information about his condition. Each time he tried to talk to the accused, the accused deflected, said that “the process was not working” and asked him just to take him to the hospital. As a result, Mr. Bradley asked him about his life, his siblings and where he was from in order to keep him calm, but the accused did not converse with him.

[7] During the course of his conversations with the accused, Mr. Bradley said that he never expressed a desire to leave or said that he was in discomfort with his surroundings. He just didn’t want to answer questions. Mr. Bradley said that the accused had a strong accent, but he was able to have a face-to-face conversation. Mr. Bradley did not recall the exact words of his conversation with the accused. Ms. Johns said that the accused spoke in English with an accent, but she could understand him without difficulty. He never expressed an inability to understand what was said to him.

[8] On October 4, 2017, at 1:15 a.m. P.C. Butt and P.C. Hurst were dispatched to meet an ambulance at Finch and Weston Road in response to a bus driver’s report about an injured man. When they arrived, P.C. Hurst spoke to the bus driver, while P.C. Butt entered the ambulance, which was already on scene. P.C. Butt saw the injured man in a chair and observed a cut on his left eye and another to his wrist. After speaking to the paramedics he proceeded to ask the accused questions about what had happened. The accused said that he got into a fight with someone and punched them back. He didn’t know the people present, and didn’t remember where it happened. He was not very forthcoming.

[9] The officer did not remember the exact words of his questions or the accused’s answers. When the officer asked if he wanted to press charges, the accused gave the impression that he didn’t want to, and got upset and angry. The accused didn’t answer questions and told the police to go away. P.C. Butt said that the accused spoke to him in English. He had no trouble understanding him, and the accused never indicated that he was having difficulty in understanding the officer. He noted that the accused had an odour of alcohol on his breath.

[10] At some point, P.C. Hurst entered the ambulance and spoke to the accused, hoping that he could get some information by asking different questions, but he also found that the accused was not forthcoming. He had to ask questions multiple times before he got an answer. He never told the accused that he had to answer his questions, but ultimately the accused told him that he had punched another man and hurt him. When asked where it happened he gave a vulgar reply and provided no additional information. Like P.C. Butt, he said that he had no trouble communicating with the accused in English.

[11] Both P.C. Butt and P.C. Hurst testified that they perceived the accused to be the victim of a crime, not a suspect. P.C. Butt was trying to get information from him because he assumed that the accused was attacked by more than one person and that he responded in self-defence. He made efforts to explain to the accused that if he provided information, the police could lay charges. When he realized that he was not going to get any more information, he stopped asking questions. The entire interaction lasted less than thirty minutes, but the officer could not say how much of the time was spent asking questions. The ambulance left the scene at 1:45 a.m. and the police left at 1:55 a.m.

The Second Statement

[12] On October 6, 2017, the police received information that the accused had committed the homicide, and about the accused’s whereabouts. At 11:10 a.m., two officers in uniform followed by two homicide detectives in plain clothes entered 1716 Weston Road, descended a staircase into the basement, called the accused out of a boiler room, arrested him, charged him with second degree murder and placed him in handcuffs. Detective Allington, one of the homicide detectives, was carrying a recording device and audio recorded the arrest. He advised the accused of his right to counsel, but when the accused said that he spoke Norwegian and Somali and did not understand what Detective Allington read to him, Detective Allington got P.C. Isse, a Somali-speaking officer, on speaker phone with him to translate.

[13] The accused was then advised of his right to counsel in Somali and he replied that he understood. He was also given a primary and secondary caution in Somali. He refused to provide his name and said that he didn’t want to speak to the police, but wished to speak to someone at the Norwegian Embassy. In response to being asked if he wanted to speak to a lawyer “now”, he said that he needed someone to help him. He was then taken to a police car.

[14] Before the accused was placed in the car, he was subjected to a pat down search, and told that there were cameras and microphones in the car. He replied, in English, “I am safe. I didn’t have nothing.” He was placed in the police car at 11:29 a.m. and transported to 23 Division. While waiting to enter the station, the accused asked one of the officers if he would be able to smoke inside. He was told that he would not. He asked again a couple of minutes later. When told again that he would not, he asked why, and said that smoking in jail was permitted in Norway.

[15] After a few minutes, the accused was taken inside the police station and, at 12:37 p.m., processed with the assistance of the Somali officer as an interpreter. He was cautioned again in Somali. When told, in Somali, that he was under arrest for second degree murder, and asked if he understood, he said no. He was searched between 12:43 p.m. and 12:48 p.m., and taken to an interview room.

[16] Before being interviewed, the accused complained that he was cold and was given extra clothing. At 12:47 p.m. a call was arranged for him with the Norwegian Consulate, and at 1:34 p.m. a call was arranged with duty counsel. In both cases, the police ensured that an interpreter was available at the other end of the call to facilitate communication.

[17] At 1:58 p.m., Detective Allington commenced a video-recorded interview with the accused. P.C. Isse provided English-Somali interpretation. The interview was quite brief - 27 minutes in length including the time necessary for interpretation. I have had the opportunity to watch the video, and to read a transcript of it. I note that when words were spoken by the accused and P.C. Isse in Somali, an English translation appears in the transcript. I do not propose to summarize this interview in these reasons, but I will underscore a few highlights.

[18] At the outset of the interview, the officer explained that he was a Homicide Squad Detective who investigates murder, and had the accused confirm that he had spoken to a lawyer. He directed the accused not to tell him about the conversation, but asked if the accused was satisfied with the advice. The accused acknowledged that he was, and that he was not going to talk to the officer. The officer also confirmed that the accused had spoken with the Norwegian Consulate. The accused replied that he had, and then said that he does not know this system, and was not going to talk with anyone.

[19] The officer then explained that the accused was charged with second degree murder, and cautioned him. The accused replied that he understood, but on the lawyer’s advice, he was not going to talk. The officer then gave the accused a secondary caution. The accused said that he told the officer not to talk to him, but since the officer was still talking, he was going to be silent.

[20] Detective Allington then told the accused that he didn’t have to talk, but he was going to tell him about the “issue” here. Detective Allington then told the accused that he was charged with killing Abdul Hussein, and then briefly explained the different penalties for first degree murder, second degree murder and manslaughter. The accused then said, “I don’t want to talk.” The translator replied, “You don’t have to talk. It is going to be explained to you. That is all.”

[21] At that point, only six minutes after the commencement of the interview, without being asked a question or in any way prompted, the accused gave a one minute exculpatory version of the events.

[22] Detective Allington then asked him several questions about the hospital he was taken to, how he got there and who took him there. In the course of answering the questions, the accused volunteered that he told the police on the way to the hospital that he had caused a problem to a man at the address he had given them. At the end of this discussion, and now about 15 minutes into the interview, the accused said that he had never killed anyone, that he was confused, and that he was begging for a rest, and asked to be interviewed at another time.

[23] Detective Allington told him that he could speak to the police at any time, but he wanted to ask a couple more questions in order to understand and clarify a few things. The interpreter actually told the accused that Detective Allington said they were leaving him, first they were going to ask a few questions, and they would leave when he wanted. The accused replied that he couldn’t answer any more questions, and said something to the effect that he would cry.

[24] Detective Allington then asked him if the ambulance had taken him from the place where the “issue” occurred, and the accused replied that he made it to a bus stop and was taken from there, and, he said, those were the last words that he would speak to Detective Allington. Despite saying this, the accused then proceeded, once again, to provide an unprompted description of what passed between him and the police that night, including him telling them that “there’s a guy there that they need to help.” Detective Allington continued to ask the accused what time it was when he was at the bus so that he could determine which officers and which ambulance was there. The accused then said, unprompted, that “the address of that neighbourhood”, presumably meaning the location of the deceased’s residence, was in his mobile, and that “He sent me everything.”

[25] Finally, nineteen minutes into the interview, Detective Allington began asking the accused questions about the offence. He asked if other people were there, to which the accused said that he was going silent. Detective Allington then asked a number of questions, to which he got no answer.

[26] Finally, when the detective said to the accused that he wanted to know what happened between him and the deceased, the accused replied that he had a picture in his mind of what happened, but he had his own problem and they should talk another time. He also said that he was in shock, and was going to be silent.

[27] Detective Allington then asked him how he got the cut on his hand. The accused replied that “he” inflicted it on him with a bottle. He again then said that he could not talk.

[28] Detective Allington asked him where he slept the previous night and if he had eaten. The accused again said to stop asking him questions, and that he would speak to the officer later on.

[29] Detective Allington then told the accused what was going to happen to him, that he would be taken to court the next day, and a bit about what would happen there, and then clarified matters about his diet. The interview then ended.

ADMISSIBILITY OF THE FIRST STATEMENT

The Issues

[30] The first statement consists of a number of answers given to questions asked by both the paramedics and the police officers. The accused takes the position that the paramedics were persons in authority and, accordingly, the statements made to them as well as to the police officers must be shown to be voluntary.

[31] The accused makes the following arguments in support of his position that the Crown has failed to establish, beyond a reasonable doubt, that the first statement was voluntary:

1. The accused’s understanding of English was so deficient that it was impossible for him to have understood the questions and to have given answers in English.
2. The Crown was unable to present a full record of the statement because no one took verbatim notes.
3. The circumstances of the taking of the first statement were oppressive because the accused was new to Canada, did not know our justice system, did not speak English, was under the influence of alcohol and was injured, and that the police ignored his requests that they withdraw.

Analysis

[32] I begin by noting the context of the taking of the first statement. The accused came into contact with the paramedics and the police as a result of a request made by him of a bus driver for help. He was a person in need of medical attention. When the paramedics arrived, they asked him questions in order to learn how he had been hurt in order to determine what injuries he might have, including internal injuries, beyond what they could see. When the police arrived, they considered him to be a victim of crime. They believed that the accused had been attacked by more than one person, and had reacted in self-defence. They asked questions of him in an effort to determine what had happened, where it had happened and who had assaulted the accused. They made efforts to explain to him that if he answered their questions, they could lay charges against those persons.

[33] The context I have just described is important because it makes clear that the police did not believe that the accused had committed a crime, were not investigating him and were not pressuring him to answer questions in order to develop a basis to lay charges against him.

[34] I turn next to the defence submission that the paramedics were persons in authority. There is no doubt that when the accused was under arrest on October 6 and spoke about his contact with paramedics and the police on October 4, both he and the officer asking questions of him were confused about who amongst the persons in the ambulance were police officers. The accused argues that this demonstrates that he had a subjective belief on October 4 that the paramedics were police officers, and that this triggers the need for the Crown to satisfy the voluntariness rule in respect of the things said by the accused to the paramedics. I do not accept this argument.

[35] The question of who is considered a person in authority for the purpose of the voluntariness rule was authoritatively considered by the Supreme Court in R. v. Hodgson, [1998] 2 S.C.R. 449. The Court explained that while “person in authority” typically refers to those persons formally engaged in the arrest, detention, examination or prosecution of an accused, it may take on a broader meaning. The Court adopted the following statement, at para. 33:

The law is settled that a person in authority is a person concerned with the prosecution who, in the opinion of the accused, can influence the course of the prosecution. The test to be applied in deciding whether statements made to persons connected in such a way with the prosecution are voluntary is subjective. In other words what did the accused think? Whom did he think he was talking to? . . . Was he under the impression that the failure to speak to this person, because of his power to influence the prosecution, would result in prejudice or did he think that a statement would draw some benefit or reward? If his mind was free of such impressions the person receiving this statement would not be considered a person in authority and the statement would be admissible.

[36] To this the Court added, at paragraph 34, that the accused’s belief that he or she is speaking to a person in authority must be reasonable.

[37] In my view, in the circumstances here, the paramedics were not persons in authority. First, I do not take from the confusion in the discussion on October 6 that the accused thought that the paramedics he encountered on October 4 were police officers, or were persons who could influence his prosecution. And even if he did, such a belief would be entirely unreasonable. There was no prosecution. There was no investigation of him. Most importantly, there is no basis to imagine that at the time, the two persons who arrived in response to his request for help, emerged from an ambulance, seated him inside the ambulance and tended to his wounds and took him to the hospital were anything other than what they in fact were: paramedics. Corrick J. reached a similar conclusion in similar circumstances in R. v. Johnston, 2014 ONSC 875, at paras. 28-34. The fact that the accused was newly arrived in Canada from Norway in no way undermines my conclusion. But, as will be seen, even if the paramedics were persons in authority, the accused’s comments to them were voluntary.

[38] I turn next to the argument that the accused’s understanding of English was so deficient that it was impossible for him to have understood the questions and to have made a statement in English. The test was succinctly stated in R. v. Lapointe and Sicotte (1983), 9 C.C.C. (3d) 366 (Ont. C.A.), aff’d, [1987] 1 S.C.R. 1253, at para. 44:

In my opinion, the proper test to arrive at the determination whether the statements (otherwise held to be, voluntary) were admissible, was whether the respondents' understanding and ability to communicate in the English language was so deficient that it was impossible for them to have understood the police or to have made any statements in English. Only then could it be said by the judge that the statements did not amount to their statements. This test, in my opinion, has nothing to do with mental condition or operating mind. It involves the judge on the voir dire applying a legal test to his findings of fact regarding the accused's ability to comprehend and communicate in the language of the statement. It is difficult to conceive of a situation where the prosecution would be tendering such a statement for, on a voir dire, the first prerequisite would be to adduce some evidence that the statement tendered is the accused's statement. The determination whether the suspect had the capacity to make a particular statement, by reason of language difficulties, is one for the trier of fact.

[39] It is certainly the case that the accused’s ability to communicate in English was inadequate for the purpose of understanding the formal right to counsel and the cautions given to him on October 6 when he was placed under arrest. It is possible that his ability to communicate in English would also have been inadequate for the purpose of understanding the questions put to him and the answers he gave in the police station on October 6 had he not had the assistance of a translator. But that is a far cry from the questions asked and answers given on October 4.

[40] The questions asked of the accused on October 4 were simple, and the answers he gave were equally simple and entirely responsive. He clearly knew what he was being asked, and what he was saying in response. As I have noted, Mr. Bradley, one of the paramedics, testified that he and the accused spoke only in English and that he had no difficulty understanding the accused or being understood by him. P.C. Butt said that the accused spoke to him in English, that he had no trouble understanding the accused and that the accused never indicated that he was having difficulty in understanding the officer. P.C. Hurst also said that he had no trouble communicating with the accused in English.

[41] As a result, I am satisfied beyond a reasonable doubt that the accused’s understanding and ability to communicate in the English language was not so deficient that it was impossible for him to have understood the police or to have made statements in English. I would not give effect to this argument.

[42] I turn next to the argument that the Crown’s inability to present a full record of the statement because no one took verbatim notes was fatal to the proof of voluntariness. I begin by noting that in the circumstances here, it would have been surprising if the paramedics or the police had taken verbatim notes. They were coming to the aid of an injured man who appeared to be the victim of a crime. No one was conducting an investigation of the accused. The paramedics were trying to ascertain the extent of his injuries. The police were trying to ascertain who had assaulted the accused, in order to arrest them. The only question is, in the circumstances here does the absence of a verbatim account raise a reasonable doubt about voluntariness. In my view it does not. Once again, the questions asked and answers given were simple. There is not the slightest hint of promises, threats, force or, as will be seen, oppression. There are no material gaps in the conversation. I would not give effect to this argument.

[43] I turn finally to oppression. Simply put, I am satisfied beyond a reasonable doubt that the accused’s right to make a meaningful choice whether or not to speak to state authorities was not overborne by oppression on the part of either the paramedics or the police, or arising from the circumstances. Specifically, neither the fact that the accused was new to Canada, did not know our justice system, did not speak English, was under the influence of alcohol to some degree or was injured, nor the fact that the police did not withdraw or repeated some of their questions when the accused did not answer had the effect of depriving the accused of the right to make a meaningful choice whether or not to speak. None of the circumstances here approached the considerations listed by the Supreme Court as sources of oppression in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 59-62. Significantly, far from being overborne by oppressive treatment, the accused said what he chose to say and withheld what he chose to withhold.

[44] In all the circumstances, I conclude that the statement of October 4 was voluntary, and turn to the statement of October 6.

ADMISSIBILITY OF THE SECOND STATEMENT

The Issues

[45] The accused makes the following arguments in support of his position that the Crown has failed to establish, beyond a reasonable doubt, that the second statement was voluntary:

1. The circumstances of the taking of the second statement were oppressive because the accused was tired, in shock, unwell, distraught and emotional at the time.
2. The accused’s right to silence was violated and his statement was not voluntary because although he advised the police from the beginning of the interview that he did not want to speak to the police, they continued to interview him.

Analysis

[46] I begin again by noting the context of the taking of the second statement. The arrest of the accused was audio-recorded. It is clear from the recordings that he was treated respectfully and fairly throughout. He was arrested, charged with second degree murder, and handcuffed. He was then given his right to counsel. He replied that he spoke Norwegian and Somali, and did not understand. He was immediately placed on a speakerphone with P.C. Isse, a Somali-speaking officer, who interpreted for him. He was then fully advised of his right to counsel in Somali and replied that he understood. He was also given a primary and secondary caution in Somali. He refused to provide his name and said that he didn’t want to speak to the police, but wished to speak to someone at the Norwegian Embassy. In response to being asked if he wanted to speak to a lawyer “now”, he said that he needed someone to help him. He was then taken to a police car and transported to 23 Division. He was not questioned further until his requests were complied with, except for the routine questions asked of him at the police station during the booking process.

[47] At the station, the accused was processed with the assistance of the Somali officer as an interpreter. He was again told that he was under arrest for second degree murder in Somali, and cautioned. He was searched respectfully, and taken to an interview room. Before he was interviewed, his requests to speak to someone at the Norwegian Embassy and to speak to a lawyer were complied with. In each case, the police ensured that there was someone at the other end of the call, independent of the police, who could interpret for him. When he complained he was cold, he was given extra clothing. Finally, at 1:58 p.m., Detective Allington commenced the video-recorded interview with the accused.

[48] I have repeated all of the foregoing to make clear that the accused was treated respectfully and appropriately from the time of his arrest to the time of the interview. His rights were fully respected and his physical comfort was ensured.

[49] The interview itself lasted a mere 27 minutes, which includes the time necessary for interpretation. Detective Allington began by identifying himself and ensuring that the accused had effectively exercised his right to counsel and had actually spoken to someone at the Norwegian Consulate. He again gave him a primary and secondary caution, and ensured that he understood. He summarized the case against the accused, and in answer to the accused’s assertions that he wanted to remain silent, he repeatedly told him that he did not have to say anything.

[50] With all of this in mind, leaving aside the argument that the accused’s right to silence was violated, I am of the view that the circumstances of the taking of the second statement were the furthest thing from oppressive. As I noted, the accused argues that the circumstances of the taking of the second statement were oppressive because the accused was tired, in shock, unwell, distraught and emotional at the time. I am unsure what is meant by the assertion that the accused was in shock. He was undoubtedly and understandably upset about being arrested and in custody in a police station, but that hardly makes the circumstances oppressive. Nor do any of the other circumstances, viewed individually or collectively, amount to oppression.

[51] I turn next to the argument that the accused’s right to silence was violated, and his statement was therefore not voluntary, because the police continued to interview him despite his repeated assertions that he did not want to speak to them. I begin my consideration of this argument by recalling that the right to silence does not prohibit the police from questioning an accused even after he has retained counsel and has asserted his choice to remain silent. Police use of legitimate means of persuasion short of denying a suspect the right to choose does not breach the right to silence. (See R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 45-47.)

[52] On the other hand, the law does not permit the police to ignore a suspect’s freedom to choose whether to speak or not. Police persistence in continuing an interview despite repeated assertions by the detainee that he wishes to remain silent may raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities. (Singh, para. 47.)

[53] In this case, a careful review of the conduct of the interview, examined in the overall context of the arrest and the events between the arrest and the commencement of the statement, leads me to the conclusion that for most of the interview the police did not overbear or undermine the accused’s right to remain silent. There is no question that the accused expressed his determination to remain silent repeatedly. While this did not deter the police from continuing the interview, the police never suggested to the accused that he had to speak. On the contrary, they repeatedly told him that he did not. They simply did not go away, and continued to speak to the accused. As a result, in my view, based on what had preceded the interview and on what took place during the interview, the police did not deny the accused his right to silence until quite late in the interview.

[54] It is clear from a reading of the transcript of the interview that there was virtually no questioning of the accused about the circumstances of the alleged offence. As I have already noted, before asking the accused a single question about the alleged offence, Detective Allington told him that he didn’t have to talk, but that he was going to tell him about the “issue” here. He then told him that he was charged with killing Abdul Hussein, and briefly explained the different penalties for first degree murder, second degree murder and manslaughter. The accused then said, “I don’t want to talk.” The translator replied, “You don’t have to talk. It is going to be explained to you. That is all.” At that point, only six minutes after the commencement of the interview, without being asked a question or in any way prompted, the accused gave a one minute long exculpatory version of the events. It is hard to imagine how this volunteered statement about the alleged offence could conceivably have been given as a result of his right to remain silent being undermined or overborne by the police.

[55] Detective Allington then asked the accused several questions about the hospital he was taken to, how he got there and who took him there. In the course of answering the questions, the accused volunteered that he told the police on the way to the hospital that he had caused a problem to a man at the address he had given them. Again, it is hard to imagine how this volunteered statement about the alleged offence could conceivably have been given as a result of the accused’s right to remain silent being undermined or overborne by the police.

[56] At the end of this discussion, the accused said that he was confused and was begging for a rest, and asked to be interviewed at another time. The interpreter told the accused that Detective Allington was going to ask a few questions, but that they would leave when he wanted. The accused replied that he couldn’t answer any more questions, and said something to the effect that he would cry. Detective Allington then asked the accused additional questions about his trip to the hospital, and finally, Detective Allington began asking the accused questions about the offence.

[57] In my view, once the accused said he was confused and asked for a rest, the police questioning should have stopped, at least for a time. While Detective Allington remained unfailingly polite and fair to the accused in every other way, I have a reasonable doubt about the voluntariness of the things said by the accused from that point on.

[58] As a result, I find that the second statement was voluntary up to the point when the accused said that he was confused, and was begging for a break, and not voluntary after that point in time.

DISCRETION

[59] The accused asks that to the extent that I find any statement made by the accused to be voluntary, I exercise my discretion to exclude it. I see no basis to do so, and decline this invitation.

CONCLUSION

[60] I conclude that statement one, and statement two up to the point when the accused said that he was confused and was begging for a break, were each made voluntarily, and are admissible in evidence. The part of statement two that follows the point I have indicated is inadmissible. Further, I decline to exercise my discretion to exclude any part of either statement that I have found to have been made voluntarily.

M. DAMBROT J.

RELEASED: June 13, 2019

COURT FILE NO.: CR-18-50000385-0000 DATE: 20190613 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – ABDIRIZAQ YABAROW

REASONS FOR DECISION DAMBROT J.

RELEASED: June 13, 2019