R. v. Ahmed, 2020 ONSC 5990

COURT FILE NO.: CR-19-00000347-000

DATE: 20201002

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

NADEEM IMTIAZ AHMED

Respondent

M. Asma and D.M. Garg, for the applicant

P. Genua, for the respondent

HEARD: September 14-16, 2020

RULING (VOLUNTARINESS OF STATEMENT)

SCHRECK J.:

1Nadeem Imtiaz Ahmed is charged with fraud and using a forged document. At his trial, the Crown wishes to rely on a four-and-a-half-hour statement he gave to the police during an interview conducted over a year before his arrest. To do so, the Crown must prove the voluntariness of the statement beyond a reasonable doubt.

2The interview was conducted in a Royal Canadian Mounted Police (“RCMP”) office in downtown Toronto. Prior to the interview, Mr. Ahmed was told that he was not required to speak to the police, that he could leave at any time, and that anything he said could be used in court against him. Mr. Ahmed was eventually charged about a year and a half after the interview.

3The Crown submits that the statement was voluntary. Mr. Ahmed takes the position that it was not because although he was told that he was a “subject” of the investigation, it was not made clear to him that he was a suspect and that the police had the grounds to arrest him at the time of the interview. He relies as well on the fact that he was never given a formal caution.

4A voir dire into the admissibility of the statement was conducted at the beginning of Mr. Ahmed’s trial. At the conclusion of the voir dire, I advised the parties that I was satisfied beyond a reasonable doubt that the statement was voluntary and admissible. Following are my reasons for that conclusion.

I. EVIDENCE

A. How the Interview Was Arranged

5In 2016, members of the Sensitive and International Investigations Group of the RCMP began an investigation into Mr. Ahmed and another person, Wajid Ali Khan, whom two individuals alleged had defrauded them by inducing them to loan money based on false pretences.

6In May 2017, Sgt. Akhasone Samonekeo, who was at the time the lead investigator, contacted Mr. Ahmed by telephone and asked him to attend an interview. Mr. Ahmed agreed to do so and arrangements were made for him to attend an RCMP office in downtown Toronto on May 18, 2017. The RCMP office was in an office building and was not part of a police station.

7Mr. Ahmed arrived at the office in the afternoon where he was met in the building lobby by Sgt. Samonekeo and another officer, Corp. Daniel Ferrante. They accompanied him to the RCMP office on the 17th floor. Prior to entering, the officers conducted a pat down search of Mr. Ahmed for safety reasons and asked him to turn off his mobile telephone.

8The interview took place in a room in which there was a table and three chairs. Mr. Ahmed sat on one side of the table and the officers sat across from him. There was a window next to the table and there is no issue that the door remained unlocked throughout the interview. The interview was audio and video recorded. Mr. Ahmed and both officers can be seen on the recording.

B. What Was Said During the Interview

9After Mr. Ahmed provided the officers with his name, address and other personal details, the following exchange took place:

SAMONEKEO: Okay, okay great. Um, so like I told you everything is audiotaped so, to make sure that uh, uh, everything’s accurate. So um, I just want to make sure, ‘cause I know you’re not too su-, you don’t know what, you know, you’re here for right I, I haven’t told you. Um, but uh, I wanted to make sure that you understand this. Is that uh, uh, you don’t have to talk to me today, okay? You don’t have to say anything, all right? Uh, as I said you can leave whenever you want to leave, right? And also um, in our previous phone calls, right? Uh, if I said anything to you uh, that you have to come in, right? Uh, I want to make sure that you don’t feel pressure to stay…

AHMED: No.

SAMONEKEO: …okay, and that you can leave whenever you want to leave …

AHMED: Uh-hm.

SAMONEKEO: …okay?

AHMED: Thank you.

SAMONEKEO: Um, so, but I want you to understand also that anything you do say today uh, can be used in court. ‘Kay do you understand what that means?

AHMED: Oh, whatever I say, like that can get used in court, right?

SAMONEKEO: Yeah, so like uh, w-, ‘cause you just repeated the same words back to me, but what does that mean to you? What’s court?

AHMED: Like, like uh, say for example whatever like, you come to like, whatever it is, right?

SAMONEKEO: Yeah.

AHMED: Whatever you talk, whatever I say you can use that thing as a evidence against me in the court, right?

10Later, the following was said:

SAMONEKEO: Yeah. And also, so you do understand, I, I want you to repeat back to me also or to explain in your words how you understand like, that you don’t feel any pressure to talk to me right? And that I didn’t um, uh, nobody threatened you, right? Nobody told you to come here, right? You came voluntarily, right?

AHMED: Right.

SAMONEKEO: Uh, what does that mean to you?

AHMED: What (inaudible) like, you called me.

SAMONEKEO: Yeah.

AHMED: And asked me to come this here ...

SAMONEKEO: Yeah.

AHMED: …and I said, and even you gave me the opportunity, okay I’m available or not available like…

SAMONEKEO: Yeah.

AHMED: …you even confirmed me from yesterday like, you know like you asked me like…

SAMONEKEO: Yeah.

AHMED: … if I’m available. So I,…

SAMONEKEO: Yeah.

AHMED: It’s uh, with my own like ...

SAMONEKEO: Yeah.

AHMED: …nobody has pressurized …

SAMONEKEO: Yeah.

AHMED: …me with it.

SAMONEKEO: And also one, the other thing is uh, you feel comfortable leaving whenever you want to leave, right? Um, do you understand that as well?

AHMED: Uh, yes sir.

11Later, the following exchange took place:

SAMONEKEO: Yeah, you know what I’m glad that you uh, came to talk to us today. Um, that’s uh, it shows a lot of respect, right, on your part for us.

AHMED: Um, (inaudible).

SAMONEKEO: Uh, and that uh, that you want to do the right thing there. So uh, I appreciate that a lot. Uh, for you coming in here.

AHMED: If there is anything, you know, like if I, like you tell me one, what I did wrong (inaudible) like ...

SAMONEKEO: ‘Kay.

AHMED: …well I want that opportunity to tell, explain …

SAMONEKEO: Yeah.

AHMED: …to you.

12Sgt. Samonekeo then explained the offences of fraud, possession of property obtained by crime, and money laundering, which he described as “the offences that we’re investigating.” The interview then proceeded and Mr. Ahmed was asked questions about his business dealings and his relationship with Mr. Khan. At one point fairly early on in the interview, the following was said:

SAMONEKEO: Uh-hm. Well I appreciate very much that you’re coming in to talk to us. And um, and that’s the reason why we called you, i-, is because, you know, we have uh, we have, you know, in in a visit in an investigation um, you know somebody comes in, right? And uh, he tells us a story, right? And we, we have to believe that story, right? Because uh, we don’t want to assume that these people, you know, are lying to us, right? ‘Cause usually people don’t lie to the police, right? Um, so we believe them, right? So, but and that’s why we, here uh, in Canada we call, you know, whoever is the subject of an investigation.

AHMED: All right

SAMONEKEO: To give them an opportunity to tell their side of the story, right? Um, at the end of the day, like, I don’t know what’s gonna happen, right? We’re gonna look at everything. And then we’re gonna decide what, what’s going to happen, right? But uh, I’m glad that you’re here. And we’re, that we’re gonna uh, figure out what the truth is, right? Um, and uh, thank you very much for your cooperation.

13The interview ultimately lasted for approximately four and a half hours. At the conclusion of the interview, Mr. Ahmed was told that the police would consider what he had said and other information and then decide what will happen. Sgt. Samonekeo said “we needed to warn you about these offences. Because your name came up …. as a suspect.” This was the first time the word “suspect” was used. Earlier, the police had described Mr. Ahmed as a “subject” of the investigation. For the first time, Mr. Ahmed was expressly told that he may be charged with an offence. The police did not caution Mr. Ahmed in the standard language ordinarily used by police officers in Canada.

C. Grounds to Arrest at the Time of the Interview

14Although his evidence was somewhat inconsistent on this point, Sgt. Samonekeo eventually acknowledged in cross-examination that at the time of the interview, he believed that he had reasonable and probable grounds to arrest Mr. Ahmed. He maintained, however, that it was never his intention to do so before conducting further investigation. Mr. Ahmed was ultimately arrested in March 2018.

II. ANALYSIS

A. Overview

15The modern confessions rule in Canada was comprehensively explained by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and later summarized in R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500 (at paras. 11-13):

At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case “recast the law relating to the voluntariness of confessions ... It rejected resort to fixed and narrow rules”: D.M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. He also emphasized that a contextual approach is required (at para. 47):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the other hand, the use of “police ... trickery” to obtain a confession “is a distinct inquiry ... [given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65).

16In this case, there is no suggestion that any threat or promise was made by the police, or that they engaged in any trickery. Rather, Mr. Ahmed’s position is that he was not sufficiently made aware of the extent of his jeopardy. While he was told that he was the “subject” of an investigation, it was never made clear to him that at the time he was speaking to the police, they had reasonable and probable grounds to arrest him and could have done so at any time. In this regard, counsel for Mr. Ahmed submits that the failure on the part of the police to use the standard caution is significant.

B. Subjective Awareness of What is at Stake

17Clearly, the concept of voluntariness includes some subjective awareness of the relevant circumstances. As stated by Watt J. (as he then was) in R. v. Worrall, [2002] O.J. No. 2711 (S.C.J.), at para. 106, “Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them.” What then, must an accused be aware of in order for his statement to be voluntary? As with all aspects of the voluntariness inquiry, this will largely depend on the circumstances of the particular case. However, there must be some minimum standard.

18In cases where the person being interviewed is detained, the suspect will know the extent of his jeopardy because s. 10(a) of the Charter would have required the police to advise him of the reasons for his detention. As well, s. 10(b) would have required that he be made aware of his right to counsel and be given an opportunity to exercise it, and counsel will usually provide the detainee with the information he requires to be able to make a meaningful choice about whether to speak to the police. The situation is less clear where, as in this case, the person being questioned is not detained.

19During the course of argument, I was referred to R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, where the Court referred to its earlier decision in Horvath v. The Queen, 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376, at p. 425, which also stated that “voluntariness implies an awareness of what is at stake in making a statement to a person in authority.” With respect to this, Sopinka J. in Whittle stated (at p. 936):

In my opinion in the circumstances this 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.

It is important to bear in mind, however, that the issue in Whittle was whether the accused possessed an operating mind and it was in this context that Sopinka J.’s statement was made. In my view, it does not follow that the minimal level of awareness described in Whittle will always be sufficient to establish voluntariness. While it is sufficient to establish that the accused had an operating mind, “Minimal cognitive ability is a necessary pre-condition to voluntariness, but not a sufficient one”: R. v. Tessier, 2020 ABCA 289, at para. 54.

20In my view, “an awareness of what is at stake” usually implies at the very least some general sense of the extent of one’s jeopardy. In R. v. Smyth, [2006] O.J. No. 5527, at para. 81, Trafford J. stated:

Where a police officer is questioning a “suspect,” there is an obligation, at common law, to caution him. The failure to advise a “suspect” of the right to silence, the potential jeopardy that he faces and the fact that any of his statements may be used as evidence at trial is a factor against voluntariness. See Boudreau v. R. (1949), 1949 CanLII 26 (SCC), 7 C.R. 427 (S.C.C.). Depending upon the other circumstances of the case, the failure to caution a “suspect” may lead to a reasonable doubt on the issue of voluntariness. [Emphasis added].

A similar point was made in R. v. Biddersingh, 2015 ONSC 5904, at paras. 66-70. In that case, in the context of a voluntariness inquiry, O’Marra J. adopted the following from R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at p. 542, with respect to what is required before an individual can validly waive a constitutional right:

The exercise of a right to choose presupposes a voluntary informed decision to pick one course of conduct over another. Knowledge of the various options and an appreciation of the potential consequences of the choice made are essential to the making of a valid and effective choice

21Based on the foregoing, in my view a finding of voluntariness will usually require that the person giving the statement be aware of (1) the nature of the offence or offences being investigated; (2) whether he is a suspect, that is, a person against whom charges may be laid; and (3) that his statement may be used against him in court if charges are laid. That awareness may arise from what the accused is told by the police or from the circumstances in which the statement was made.

22Whatever level of awareness is required, it clearly existed in this case. Mr. Ahmed was aware that the police were investigating fraud and related offences and he was aware that anything he said could be used against him in court. The fact that he was alive to the possibility that there could be court proceedings in which evidence may be used “against” him implies an awareness that he may be charged.

23While the police never used the word “suspect”, there is no requirement that they do so: R. v. Campbell, 2018 ONCA 837, 366 C.C.C. (3d) 346, at para. 8. In any event, “suspect” in this context simply means a person whom the police believe may have committed an offence and who may be charged as a result. Mr. Ahmed knew that he may be charged and, by implication, that the police suspected that he may have committed an offence.

C. Failure to Advise of the Existence of Reasonable and Probable Grounds

24Counsel for Mr. Ahmed submits that what Mr. Ahmed did not know was that the police had reasonable and probable grounds to arrest him at the time of the interview and could have done so at any time. He submits that this was critical information without which Mr. Ahmed could not make an informed and voluntary decision whether to speak to the police.

25A police officer who has reasonable and probable grounds to believe that a suspect has committed an offence is justified in making an arrest. However, he or she is not required to do so. The police have considerable discretion in this regard and there are many reasons why an officer may choose not to arrest a suspect despite having the grounds to do so. As in this case, the police may wish to conduct further investigation. In some cases, the further investigation may reveal new information such than an arrest is no longer justified and the suspect will have been spared an unnecessary arrest. In other cases, the police may choose not to arrest someone for humanitarian or compassionate reasons.

26While Sgt. Samonekeo had reasonable and probable grounds to arrest Mr. Ahmed at the time of the interview, he was not arrested or charged at that time and I accept Sgt. Samonekeo’s evidence that he did not intend to charge Mr. Ahmed until the investigation was complete. At the time Mr. Ahmed was deciding whether or not to speak to the police, he was fully aware that he may be charged at some point. No more was required in the circumstances.

27Reasonable and probable grounds, as opposed to only a reasonable suspicion, is a legal standard that will in most cases be meaningless to a suspect with no legal training. At best, this information will allow a suspect to assess how likely he is to be arrested and charged. While I agree that a suspect must have an awareness of what is at stake, there is nothing in the authorities to suggest that that awareness need be as detailed and specific as the defence suggests. In most cases, knowledge that one may be charged and the nature of the offence being investigated will be sufficient.

D. Failure to Use the Standard Caution

28Counsel for Mr. Ahmed also relies on the fact that the police failed to use the standard wording in cautioning Mr. Ahmed. In my view, the fact that the police did not use the standard police caution is of no moment. For the reasons outlined earlier, what is important is that the person making the statement have sufficient awareness of the relevant circumstances to be able to make an informed decision about whether to speak. While the giving of a caution will often ensure that the person has such an awareness, there is no absolute rule requiring that a formal caution be given before a statement can be found to be voluntary: R. v. E.B., 2011 ONCA 194, 269 C.C.C. (3d) 227, at para. 88.

29If a caution is given, what is important is not whether any particular words are used but whether the required information is conveyed: Campbell, at para. 8. The caution is usually given in the following or similar words: “You are charged with …. Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence”: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 31. The first two sentences obviously do not apply here as Mr. Ahmed was not charged at the time of the interview. Furthermore, the second sentence is problematic because it may undermine the right to silence: R. v. G.T.D., 2018 SCC 7; [2018] 1 S.C.R. 220, at para. 2.

30The remaining words, “You are not obliged to say anything but whatever you do say may be given in evidence,” are intended to convey to a suspect that he has the option to decline to speak to the police and that if he does speak, what he says could be used against him in future proceedings. Both aspects were made clear to Mr. Ahmed. He was told, “you don’t have to talk to me today”, “You don’t have to say anything” and “you can leave whenever you want.” He was also told “anything you do say today can be used in court.” Mr. Ahmed told the police that he understood this to mean “whatever I say you can use that thing as a evidence against me in the court.”

31In my view, the approach taken by the police in this case is to be commended rather than criticized. The language used in the standard caution is not natural, and there is a danger that a suspect hearing a police officer read it off the back of a notebook will view the caution as an unimportant formality that the police must follow. Furthermore, the language is, in my view, unclear. The suspect is told that whatever he or she says “may be given in evidence.” A suspect who has no experience with the criminal justice system may not appreciate that this is a reference to evidence in court proceedings as opposed to evidence collected by the police in the course of an investigation. More importantly, the standard caution does not explicitly state that what the suspect says may be used as evidence against the suspect. The language used by the police in this case made all of this clear.

III. DISPOSITION

32For the foregoing reasons, I am satisfied beyond a reasonable doubt that the statement made by Mr. Ahmed on May 18, 2017 to the RCMP officers was voluntary and is therefore admissible.