COURT FILE NO.: CJ 9410
DATE: 2019-09-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
Mohammed Younus
Respondent
Michael Michaud, for the Crown
Barry Fox and Arif Hussain, for Mohammed Younus
HEARD: August 13,14, 2019
the honourable Mr. justice g.e. taylor
RULING RE ADMISSIBILITY OF STATEMENT
Introduction
[1] Mohammed Younus is charged with first degree murder in the stabbing death of Shamsul Alamshah. The stabbing occurred on August 27, 2017. Mohammed Younus was arrested shortly after the stabbing occurred. On August 28, 2017, Mohammed Younus gave a statement to Detective Constable Brian Duyn. The Crown seeks a ruling that the statement was given voluntarily by Mohammed Younus and the defence seeks exclusion of the statement from evidence at trial because of a breach of Mohammed Younus’ right to counsel as guaranteed by section 10(b) of the Charter of Rights and Freedoms.
[2] It was agreed to proceed by way a of a blended voir dire. It was also agreed that on the voluntariness voir dire the Crown need only call three of the officers who dealt with Mohammed Younus after he was arrested.
Evidence
[3] Constable Alex McKenna, of the Waterloo Regional Police Service, received notification over the police radio at 4:51 p.m. on August 27, 2017 about a possible stabbing which had occurred at 101 Mooregate Crescent in the City of Kitchener. He proceeded directly to 101 Mooregate Crescent and arrived at 4:54 p.m. Constable Brandon Foote, also a member of the Waterloo Regional Police Service, was already on the scene.
[4] Constable McKenna approached Constable Foote who was standing near the rear door of unit F. Unit F was at the end of a row of townhouses. Constable McKenna proceeded around the end of the row of townhouses to the front of the unit. As he came around the corner of the row of townhouses, he observed Mohammed Younus standing on the sidewalk in front of unit F. He was walking back toward the front door of unit F. Constable McKenna asked Mohammed Younus where he lived. Mohammed Younus pointed in the direction of unit F and said “there”. Mohammed Younus also responded negatively to Constable McKenna’s inquiry as to whether he lived with anyone. Constable Foote arrived. Constable McKenna drew his Taser weapon and Constable Foote had his handgun unholstered.
[5] Constable McKenna ordered Mohammed Younus to show his hands. Mohammed Younus did not appear to understand. After Constable McKenna demonstrated what he wanted, Mohammed Younus raised his hands in the air. Constable McKenna ordered Mohammed Younus to the ground and he complied. Constable Foote handcuffed Mohammed Younus with his hands behind his back while he was lying face down on the ground.
[6] Constable McKenna observed blood on the right earlobe and left neck of Mohammed Younus. Mohammed Younus said to Constable McKenna “he tried to kill me”. Constable McKenna believed that Mohammed Younus had stabbed someone. Accordingly, he instructed Constable Foote to arrest Mohammed Younus for first degree murder. Sgt. Cody Shipp, another member of the Waterloo Regional Police Service, arrived and also instructed Constable Foote to arrest Mohamed Younus on a charge of first degree murder. Constable Foote proceeded to arrest Mohammed Younus for first degree murder and advised him of his right to retain and instruct counsel. Constable Foote read the right to counsel advice from his notebook. When asked if he understood, Mohammed Younus responded “yes”. Constable McKenna believed that Mohammed Younus said he wanted to speak to a lawyer. Constable McKenna also heard Mohammed Younus say, in conversation with Constable Foote, that he spoke a different language, but he did not recall what language Mohammed Younus specified.
[7] Constable McKenna said he did not threaten Mohammed Younus or make any promises or inducements to him. He said Mohammed Younus appeared to understand English.
[8] Constable Foote received notification on August 27, 2017 about a possible stabbing on Mooregate Crescent. He drove immediately to 101 Mooregate Crescent but he did not make a note of his arrival time. When he arrived at the townhouse complex he observed two people lying on the ground in a grassy area. He was the first police officer at the scene. He administered first aid to the person who was bleeding from the chest, lying on the grassy area. When fire personnel arrived, they assumed responsibility for medical treatment.
[9] Constables McKenna and Miller arrived. It was decided that Constable McKenna would go to the back of the row of townhouses while Constable Foote and Constable Miller would stay at the front. When he heard Constable McKenna yell “police”, he ran around the end of the row of townhouses. As he came around the row of townhouses he saw a male exiting the door of unit F and begin walking towards Constable McKenna. This male was Mohammed Younus. Constable McKenna issued a command to Mohammed Younus to get on the ground, but Mohammed Younus did not comply. Constable Foote unholstered his handgun and began yelling at Mohammed Younus to stop moving forward. Eventually Mohammed Younus complied with the demand to get on the ground. He lay on his stomach with his arms to the side. Constable Foote handcuffed Mohammed Younus behind his back.
[10] At 5:02 p.m., Constable Foote arrested Mohammed Younus for attempted murder. He advised him of his right to counsel by reading the wording contained in his notebook. When asked if he understood, Mohammed Younus said “yes”. When asked if he wanted to call a lawyer immediately, Mohammed Younus said “yeah, yeah”. Constable Foote was of the opinion that Mohammed Younus understood the caution about not being required to provide a statement, because he said “no, no” when asked if he wanted to make a statement. Mohammed Younus told Constable Foote that he did not speak English well, but he spoke Rohingya.
[11] Constable Foote transported Mohammed Younus from 101 Mooregate Crescent to Central Division Station. They left 101 Mooregate Crescent at 5:13 p.m. and arrived at Central Station at 5:22 p.m. The only conversation he had with Mohammed Younus while driving to Central Station was to ask if he wanted to listen to some music. Mohammed Younus responded in English that he did wish to listen to music.
[12] Between 5:22 p.m. and 5:44 p.m., Constable Foote asked Mohammed Younus questions for the purpose of completing a Prisoner Detain Sheet. Constable Foote posed the questions in English and Mohammed Younus answered in English. There were no questions that Mohammed Younus did not appear to understand. At 5:44 p.m., Constable Foote and Mohammed Younus entered the cell block area.
[13] At 6:00 p.m., Constable Foote escorted Mohammed Younus to an interview room. At this time Mohammed Younus said he wanted to speak to a Bengali interpreter. At 6:13 p.m., Constable Foote made contact with duty counsel, who placed him on hold while he attempted to contact a Bengali interpreter. At 6:17 p.m., duty counsel advised Constable Foote that a Bengali interpreter had been located and was on the line. Duty counsel advised Constable Foote of the name of the interpreter. Constable Foote then placed Mohammed Younus in a private room to speak with duty counsel with the assistance of the Bengali interpreter. Mohammed Younus finished speaking with duty counsel at 6:26 p.m.
[14] At 6:37 p.m, Constable Foote was advised that the person he had seen lying on the grassy area at 101 Mooregate Crescent, bleeding from his chest, had died. At 6:47 p.m., Constable Foote re-arrested Mohammed Younus for murder and advised him of his right to counsel. Mohammed Younus said that he understood and that he wished to speak to a lawyer, with the assistance of a Bengali interpreter. At 6:49 p.m., Constable Foote re-read the caution to Mohammed Younus and asked him if he understood. Mohammed Younus responded “yeah”. He then asked Mohammed Younus if he wished to say anything, to which Mohammed Younus responded in English “no, only lawyer and Bengali interpreter”. At 6:53 p.m., Constable Foote again spoke to duty counsel and advised that the charge was now one of murder. At 6:59 p.m., duty counsel advised that he had located a Bengali interpreter and again provided the name of the interpreter. Constable Foote then placed Mohammed Younus in a private room so that he could speak with duty counsel with the assistance of the Bengali interpreter. At 7:20 p.m., Mohammed Younus completed his consultation with duty counsel.
[15] It did not occur to Constable Foote to seek the assistance of an interpreter, when advising Mohammed Younus of his right to counsel, and that he was not required to make any statement.
[16] At 7:22 p.m., Mohammed Younus requested, in English, to use the bathroom. He was taken to the bathroom.
[17] Between 7:32 p.m. and 8:25 p.m., Constable Foote transported Mohammed Younus to St. Mary’s Hospital for treatment of a cut on his leg. He was discharged from the hospital and they returned to Central Station.
[18] Constable Foote said he did not threaten Mohammed Younus or make any promises or inducements to him. Constable Foote was of the opinion that Mohammed Younus understood what was being said to him in English, although it was apparent that English was not his first language. At no time did Mohammad Younus object to the duty counsel or the interpreter to whom he spoke and did not express dissatisfaction with either.
[19] Det. Constable Brian Duyn, of the Waterloo Regional Police Service, was assigned to the present case on the evening of August 27, 2017. On the morning of August 28, 2017, the lead investigator instructed him to interview Mohammed Younus. He was told that a Rohingya or Bengali interpreter would be required. He contacted the KW Multicultural Centre and requested an interpreter who could speak both Bengali and Rohingya. He was advised that there were two Rohingya/Bengali interpreters, one of whom was not home and the other of whom was not answering the telephone. At 2:22 p.m., he received a telephone call from Anwar Arkani, who was a Rohingya interpreter.
[20] Det. Constable Duyn met Anwar Arkani at the Kitchener courthouse. Det. Constable Duyn was present for Mohammed Younus’ first court appearance at which he requested a Bengali interpreter. Det. Constable Duyn was advised by Anwar Arkani that he spoke Bengali, in addition to Rohingya.
[21] At 3:50 p.m., on August 28, 2017, Det. Constable Duyn began the interview with Mohammed Younus. His entire interaction with Mohammed Younus was recorded. Anwar Arkani was present throughout the interview. Anwar Arkani told him that he was acquainted with Mohammed Younus. They appeared to understand one another. At no time did Mohammed Younus indicate by words or conduct that he did not understand the interpretation by Anwar Arkani.
[22] According to Det. Constable Duyn, at the beginning of the interview, there was some confusion because Mohammed Younus did not think that Anwar Arkani was both a Bengali and a Rohingya interpreter. Det. Constable Duyn did not advise Mohammed Younus of his right to counsel because he was aware that the right to counsel had been provided the previous evening and Mohammed Younus had spoken to duty counsel on two occasions, with the assistance of an interpreter.
[23] Anwar Arkani testified that he is a part-time interpreter. Although Rohingya is his mother tongue he also interprets Bengali, Burmese and Thai. By his own choice, he is not a court accredited interpreter. Prior to testifying, he watched the videotape of the interview. Both he and Mohammed Younus spoke Rohingya and English during the interview. In his view, Mohammed Younus understood everything that was said to him during the interview. During his interaction with Mohammed Younus, prior to August 28, 2017, they had only ever conversed using the Rohingya language.
[24] At the beginning of the interview, Mohammed Younus said he wanted a Bengali interpreter, but he continued to speak to Anwar Arkani in Rohingya. Anwar Arkani also acknowledged that he was a friend of the deceased, who he referred to by a nickname.
[25] The audio video recording of the interview was made an exhibit. In response to Mohammed Younus’ request for a Bengali interpreter, Det. Constable Duyn asked Anwar Arkani what languages he spoke. Anwar Arkani said that his mother tongue was Rohingya, but he also spoke Bengali. Det. Constable Duyn then asked Mohammed Younus what his mother tongue was and received a response in English “Rohingya and Bengali”. Det. Constable Duyn read the standard police caution from his notebook. Although there initially appeared to be some misunderstanding, Anwar Arkani translated the caution. Mohammed Younus responded in Rohingya which was translated as “ah you are telling me about the murder case, if I tell you, you will tell at the court”. Det. Constable Duyn then said, “and you don’t have to” to which Mohammed Younus responded in English “yeah”. During the course of the interview Mohammed Younus conversed with Anwar Arkani in Rohingya and there did not appear to be any difficulty with them understanding one another. From time to time, Mohammed Younus also responded directly to Det. Constable Duyn in English.
[26] Mohammed Younus did not testify and did not call evidence.
Discussion
[27] There were some discrepancies between the evidence of Constable McKenna and Constable Foote. Constable McKenna said he went around to the front of the townhouses where he confronted Mohammed Younus. Constable Foote said he went to the back of the townhouses where he saw both Constable McKenna and Mohammed Younus. Constable McKenna said that Mohammed Younus was outside walking towards unit F, whereas Constable Foote said that Mohammed Younus exited the door of unit F and began to walk towards Constable McKenna. For the purpose of this ruling, it is not necessary for me to resolve the apparent conflict.
[28] Constable McKenna testified that he and Sgt. Shipp instructed Constable Foote to arrest Mohammed Younus for first degree murder, which he did. Constable Foote said he arrested Mohammed Younus for attempted murder and it was only later, at Central Station, when he learned that the victim had died, that he re-arrested Mohammed Younus on the charge of first degree murder. On this point, I prefer and accept the testimony of Constable Foote. The evidence did not disclose when Shamsul Alamshah was pronounced dead, but it is reasonable to assume that at 5:02 p.m. on August 27, 2017, the officers did not know if he had survived or not. It is therefore more likely that Constable Foote first arrested Mohammed Younus for attempted murder, which was then upgraded to murder when it was learned that the victim had succumbed to his injuries. I find that Constable McKenna is simply mistaken on this point.
Voluntariness
[29] For a statement to be admissible as evidence, the Crown is required to prove beyond a reasonable doubt that the statement was made voluntarily.
[30] The Supreme Court of Canada has stated that a confession will not be admissible if it was made under circumstances that raise a reasonable doubt as to its voluntariness. A confession will be found to be involuntary and therefore inadmissible if it was obtained as a result of threats or promises made or held out by a person in authority, was the result of the lack of an operating mind or was obtained in an atmosphere of oppression created by the police or by police trickery that undermines an accused’s right to silence. In deciding whether there is a reasonable doubt as to a confession’s voluntariness, a court should undertake a contextual analysis and strive to understand the circumstances surrounding the confession in order to determine whether there is a reasonable doubt regarding voluntariness: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, paras. 68, 69 and 71.
[31] During the course of oral submissions, the defence clarified its position on the issue of voluntariness to be that there were no threats or inducements and there was no other conduct on the part of the police that would call into question the voluntariness of the statement, other than the failure to provide Mohammed Younus with a proper caution. There is no issue that the statement in this case was the product of an operating mind.
[32] A statement is not automatically rendered involuntary, and therefore inadmissible, simply by reason of the failure to provide a person with the standard caution that he or she need not make a statement, but anything that may be said can be used in evidence, or by the giving of an improperly worded caution. The absence of a standard caution is only one factor to be considered in the voluntariness analysis, just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary: R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042, para 88.
[33] I am satisfied that Mohammed Younus was advised of his right not to make any statement and that he understood that caution.
[34] When Mohammed Younus was first advised by Constable Foote that he was not obliged to say anything in answer to the charge of attempted murder and was then asked if he wished to say anything, Mohammed Younus responded in the negative. This is evidence that he understood the caution. Later, after being arrested for murder, and after being cautioned with respect to the new charge, he said “no, only lawyer and Bengali interpreter” when asked if he wished to say anything in answer to the murder charge. This too is evidence that he understood the caution that had been read to him.
[35] It is clear that, at the beginning of the interview by Det. Constable Duyn, there was some confusion about the caution being read to Mohammed Younus. However, that confusion was explained by Det. Constable Duyn and Anwar Ankari as being about Mohammed Younus, not realizing that Anwar Arkani was able to translate both Rohingya and Bengali into English. Anwar Arkani testified that he and Mohammed Younus spoke to each other in Rohingya throughout the course of the interview. It is apparent from reviewing the video recording that they understood what each other was saying. Mohammed Younus told Det. Constable Duyn that he spoke both Rohingya and Bengali. When asked to explain in Rohingya what he understood the caution to mean, Anwar Ankari translated that Mohammed Younus said Det. Constable Duyn would tell the court what he said about the charge of murder. At the conclusion of the reading of the caution, when Det. Constable Duyn told Mohammed Younus that he could remain silent, the response in both English and Rohingya was that he understood his right. Based on this evidence, I am satisfied that Mohammed Younus understood that he had the right to refuse to say anything to Det. Constable Duyn.
[36] I therefore find that the Crown has proven beyond a reasonable doubt that the statement made by Mohammed Younus to Det. Constable Duyn on August 28, 2018 was made voluntarily and is admissible in evidence at the trial.
Right to Counsel
[37] The onus is on an accused to prove on a balance of probabilities that the right to counsel as guaranteed by section 10(b) of the Charter of Rights and Freedoms was breached and that to admit the statement as evidence at trial would bring the administration of justice into disrepute.
[38] Mohammed Younus says that his right to counsel, pursuant to section 10(b) of the Charter, was breached in four distinct ways, which he describes as follows:
(a) the failure on the part of Constable Foote to utilize a Bengali interpreter to advise him of his right to consult counsel;
(b) he was denied the opportunity to consult counsel of his choice and was “streamed” by Constable Foote to duty counsel;
(c) the refusal to honour his request for a Bengali interpreter for the interview conducted by Det. Constable Duyn;
(d) using an interpreter who was acquainted with both he and the deceased.
[39] Constable Foote advised Mohammed Younus, immediately after placing him under arrest for attempted murder, that he had the right to retain and instruct counsel. When asked if he understood this right Mohammed Younus responded “yes”. When asked if he wanted to call a lawyer, Mohammed Younus said “yeah yeah”. I accept the evidence of Constable Foote that Mohammed Younus said he did not speak English well. He did not say he did not speak English at all. I also accept the evidence of Constable Foote that he spoke to Mohammed Younus in English about whether he wanted to listen to music while being transported to Central Station and that the information to complete the Prisoner Detain Sheet was obtained from Mohammed Younus by questions posed and answered in English.
[40] Mohammed Younus relies on two decisions of the Ontario Court of Justice in support of the submission that his right to counsel was breached by the failure of Constable Foote to advise him of that right through a Bengali interpreter. Those cases are R. v. Bassi, 2015 ONSC 340 and R. v. Khandal, 2016 ONSC 446. In my view both cases are distinguishable from the facts of the present case. In each case the accused advised the police officers that their first language was not English. In both cases, the accused consulted with counsel who provided advice in English only. In the present case, I am satisfied that Mohammed Younus understood that he had the right to consult with counsel and he in fact had the assistance of a Bengali interpreter, as he had requested, on each of the two occasions when he spoke to duty counsel.
[41] Although Mohammed Younus had originally told Constable Foote that he spoke Rohingya, at Central Station, he requested a Bengali interpreter. Constable Foote testified that he told duty counsel that Mohammed Younus had requested the assistance of a Bengali interpreter. When duty counsel called back and spoke to Constable Foote he said he had located a Bengali interpreter whose name he provided, and that person was on the telephone. The second time Constable Foote spoke to duty counsel he was again told that a Bengali interpreter, whose name was provided, was on the telephone. There is no evidence that the interpreters did not participate in, and translate, the discussion between duty counsel and Mohammed Younus. The logical conclusion is, and I so find, that Mohammed Younus had the assistance of a Bengali interpreter, as he had requested, when he exercised his right to obtain legal advice promptly following his arrest.
[42] There is no evidence that Mohammed Younus requested to speak to a specific lawyer. There is no evidence that a lawyer was available, who spoke Bengali or Rohingya. Mohammed Younus did not object or express any other concern when he was given the opportunity to speak to duty counsel. His concern was about having the assistance of an interpreter when he spoke to the lawyer. A Bengali interpreter was provided on each occasion when he spoke with duty counsel.
[43] At commencement of the interview conducted by Det. Constable Duyn, Mohammed Younus requested that he be provided with a Bengali interpreter. Anwar Arkani was a Bengali interpreter. Anwar Arkani testified that when he spoke to Mohammed Younus, during the course of the interview, they conversed in Rohingya or English. There is no evidence that Mohammed Younus was not satisfied with the Rohingya interpretation which was provided. I am satisfied that if Mohammed Younus had wanted to speak Bengali during the interview, that preference would have been accommodated by Anwar Arkani.
[44] I was given no authority to support the proposition that by using an interpreter who is acquainted with the accused or any other person associated with the case, for the purpose of an interview with the accused, is a breach of the accused’s rights pursuant to the Charter. The two cases relied on by Mohammed Younus involve court interpretation.
[45] I therefore reject all of the reasons given by Mohammed Younus for maintaining that his Charter right to retain and instruct counsel was breached. It follows that Mohammed Younus has not proven on a balance of probabilities that his right guaranteed by section 10(b) of the Charter was violated and the application is therefore dismissed.
Conclusion
[46] The statement made by Mohammed Younus to Det. Constable Duyn on August 28, 2017 is admissible as evidence at the trial.
G.E. Taylor J
Released: September 6, 2019
COURT FILE NO.: CJ 9410
DATE: 2019-09-06
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
Mohammed Younus
Respondent
RULING RE ADMISSIBILITY OF STATEMENT
G.E. Taylor J.
Released: September 6, 2019