COURT FILE NO.: 18-5176 DATE: 2021/03/03

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – Mahmood Ahmad and Salam Fadhil Applicants

Counsel: Stephen Lichti, for the Crown Kim Hyslop and Anthony Paciocco, for the Applicants

HEARD: February 5, 2021

RULING ON VOLUNTARINESS OF STATEMENTS

SOMJI J.

Overview

[1] Mahmood Ahmad and Salam Fadhil are each charged with one count of sexual assault alleged to have occurred on September 16, 2018, contrary to s. 271 of the Criminal Code.

[2] The Crown seeks to tender the following two statements made by the accused to the police as part of its case.

i. Statement of Salam Fadhil made to Detective Martin Dompierre (Det. Dompierre) of the Ottawa Police Service (OPS) on December 7, 2018 (Fadhil’s statement); and ii. Statement of Mahmood Ahmad made to Det. Dompierre of the OPS on December 10, 2018 (Ahmad’s statement).

[3] Defence argues the statements were not voluntary. Defence argues that the language comprehension of the accused undermined the voluntariness of the statements taken.

[4] The Crown called two witnesses in the voir dire: Detectives Dompierre and Riopel. Neither accused testified during the voir dire.

[5] This is a blended voir dire. More specifically, the parties agreed to the following: 1) that the admissibility of each statement could be addressed as part of one voir dire; 2) that the voir dire evidence could be solicited during the testimony in chief and cross-examination of each officer in the trial proper to avoid officers returning to testify multiple times; and 3) that all the evidence led to date in the trial proper could be considered as part of the voir dire.

[6] After the start of trial, counsel for Mr. Fadhil filed a notice to bring an application that Mr. Fadhil’s right to counsel of choice as per s. 10(b) of the Charter was violated. That issue will be the subject of a separate voir dire. This ruling concerns only voluntariness of the statements.

[7] For the reasons set out below, I find that the statements of the accused are voluntary and admissible at trial.

Facts related to the investigation and circumstances giving rise to the statements

[8] Det. Dompierre is an OPS Det. constable. He has been employed with the OPS for approximately 19 years and prior to that was a member of the Montreal Police Service as well as a municipal police service in Wakefield, Quebec for nine years total. At the time of the statements, he was an investigator with the Sexual Assault and Child Abuse Section of the Ottawa Police. He was the lead investigator in the file and interviewed both accused.

[9] Det. Dompierre testified the Complainant reported that she had been sexually assaulted by two men on September 16, 2018. The Complainant said she knew one of the men as “Humam” and had met him through an on-line dating program called Badoo. The Complainant provided the officer with text communications that she had with Humam through the Badoo dating app. The Complainant provided Det. Dompierre with Humam’s phone number. The Complainant also provided the officer with her Badoo account information so that he could examine the account and obtain additional information from Humam’s profile.

[10] Det. Dompierre ran the phone number in his record management system and it identified a person by the name of Salam Fadhil, born in 1992. Upon accessing the Badoo account and Humam’s profile, Det. Dompierre confirmed the profile “Humam” also belonged to Salam Fadhil.

[11] Det. Dompierre arranged to have Det. Siebowski (“Det. Siebowski”) prepare a photo line-up containing a photo of Salam Fadhil. On November 11, 2020, Det Siebowski administered the photo line-up and the Complainant identified the photo of Salam Fadhil as one of the persons alleged to have sexually assaulted her.

[12] Det. Dompierre contacted Mr. Fadhil on the same day using the phone number provided by the Complainant. He advised Mr. Fadhil that he had reasonable and probable grounds to believe he had committed a sexual assault and asked him to turn himself in at OPS detachment at 474 Elgin Street (“detachment”), which he did on December 7, 2018. At that time, Det. Dompierre arrested Mr. Fadhil, read him his rights to counsel and caution, and obtained a video-recorded statement from Mr. Fadhil. Mr. Fadhil was interviewed in French. His first language was Arabic.

[13] During the interview, Det. Dompierre asked Mr. Fadhil to identify the second person involved in the alleged sexual assault. Mr. Fadhil told him it was a person by the name of Mahmood Albasrawi, commonly referred to as Moodie, who worked as a barber at a shop called Monster on Merrivale Road. After subsequent checks, Det. Dompierre identified a barber shop called Maestro on Merrivale Road. He called the shop and asked to speak to Moodie. The person identified himself as Moodie and confirmed his real name was Ahmad. Arrangements were made to have Mr. Ahmad turn himself in at the detachment a few days later which he did. Mr. Ahmad attended the detachment on December 10, 2018. He was arrested, cautioned, and read his rights. Mr. Ahmad was interviewed in English. His first language was Arabic.

[14] Additional facts about the telephone call, arrest, and interview with each accused are discussed further below.

Law on Voluntariness

[15] Statements made by an accused to a person in authority can only be admitted into evidence if they were made freely and voluntarily. The burden is on the Crown to prove beyond a reasonable doubt that the statements were voluntary: R v Oickle, 2000 SCC 38, [2000] 2 SCR 3 at para 30.

[16] This evidentiary rule, commonly referred to as the confessions rule, is grounded in the principle that unreliable confessions should not form part of the evidence at trial. People can and do provide false confessions that can result in miscarriages of justice. The voluntariness voir dire serves to minimize the risk that false confessions will be relied upon at trial: Oickle at para 47. It also serves to protect the accused’s right to silence and to ensure that the admission of an accused’s statement will not result in an unfair trial: R v Singh, 2007 SCC 48, [2007] 3 SCR 405 at para 34 [Singh SCC]; R v Blackduck, 2014 NWTSC 58 at para 53.

[17] The assessment of voluntariness requires a contextual analysis and is very fact specific: Oickle at para 47; Blackduck at paras 51 and 88.

[18] In determining voluntariness, the trial judge must be satisfied that: 1) the accused was not subject to any threats, promises, or inducements; 2) the accused was not required to give the statement under oppressive circumstances; 3) the accused had an operating mind; and 4), the statement was not obtained using police trickery: Oickle at paras 47-71.

[19] In this case, counsel for the accused argue that an additional consideration is the language comprehension of the accused during the interviews. Language capacity and comprehension do not form part of the operating mind analysis. The accused’s statement may be the product of an operating mind notwithstanding that there were language comprehension issues which give rise to the accuracy of the statements made. This is an issue of the weight to be given to some or all the statement, and not necessarily the admissibility of the statement: R v. Lapointe (1983), 9 CCC (3d) 366 at p. 384 (Ont. C.A.), aff’d, 1987 69 (SCC), [1987] 1 SCR 1253.

[20] However, if the accused’s comprehension of the language is so deficient that it makes it impossible for the accused to understand what the person taking the statement is saying or makes it impossible for the accused to make a statement, then the statement can be held involuntary and inadmissible: Lapointe at p. 382; R v Singh, 2013 ONSC 7310 [Singh ONSC] at paras 29-30.

[21] Comprehension of what the person in authority is saying involves not only understanding the questions and answers being asked by the officer during the interview, but more fundamentally whether the accused understands their right to silence, the legal concepts that are being used, and the potential consequences of certain decisions, including whether to speak or not speak to the police about alleged events: Blackduck at paras. 83 and 88.

[22] Hence, the assessment of voluntariness is not limited to simply examining the well-known criteria of 1) threats, promises, or inducements; 2) oppression; 3) operating mind, and 4) police trickery, but also includes a broader examination of whether the accused understood his constitutional right to silence: Singh [SCC] at paras 35 and 37.

Position of Crown

[23] The Crown submits that both statements were voluntarily made. The video recordings demonstrate that the accused were of operating mind when they gave the statements, the statements was not taken in oppressive circumstances, and no threats, promises, or inducements were made during the interview. No quid pro quo was held out to either accused and there was nothing in the officers’ conduct that would shock the conscience of the community so as to constitute unacceptable trickery.

[24] With respect to language comprehension, the Crown submits that the accused were both able to understand and communicate in the respective languages spoken during the interview. This is not a situation as in Singh ONSC where the language capacity of either accused was so deficient that it was impossible for them to understand Det. Dompierre or make a statement. Furthermore, neither accused testified in the voluntariness voir dire. The Crown takes the position that while no adverse inference can be drawn from the accused’s exercise of their right to silence, there is also no evidence before this Court that either accused had difficulty understanding what was being said to them by the police either with respect to the content of the discussion or their Charter rights.

Position of Defence

[25] Counsel for Mr. Ahmad agrees that Mr. Ahmad’s language comprehension is not so deficient that as per the test in Lapointe and Singh ONSC that it would, in and of itself, undermine the voluntariness of his statement. However, counsel points out that where language difficulties prevent an accused person from genuinely understanding his or her rights, including his jeopardy and right to silence, courts have found statements flowing from such circumstances to be involuntary.

[26] Counsel for Mr. Ahmad argues that his client did have some challenges in understanding what was being said to him as was evidenced by the fact that he misunderstood Det. Dompierre when he telephoned him on December 7, 2018. While Det. Dompierre testified he told Mr. Ahmad that he could contact counsel, Mr. Ahmad thought he was not allowed to speak to counsel. Counsel argues that, given this confusion, Det. Dompierre should have made more of an effort at the outset of the interview to ensure Mr. Ahmad understood his Charter rights and the jeopardy he was under.

[27] Defence takes the position that Mr. Ahmad’s language capacity had a tangible impact on whether he clearly understood his option to speak or not speak to the police, as well as the consequences of providing information to the police. This is supported by the fact that once he did have an opportunity to speak to counsel after the interview commenced, he exercised his right to silence and refrained from providing additional information to the police.

[28] Counsel for Mr. Fadhil takes a similar position with respect to her client. Counsel argues that Mr. Fadhil’s language comprehension was a factor in his understanding, or lack thereof, of his jeopardy, his right to silence, and his right to counsel. The failure to appreciate these rights undermined the voluntariness of the statement he provided.

[29] Counsel argues that it was apparent to the officers that Mr. Fadhil’s first language was Arabic. Efforts should have been made to locate an Arabic interpreter, particularly given that this was a scheduled interview and there was no urgency. In this regard, counsel cites para 47 of Lapointe where the Ontario Court of Appeal encourages the use of interpreters in circumstances where the suspect’s mother tongue is different and warns of the risk to the admissibility of statements in cases when this ought to have been done.

[30] Counsel for Mr. Fadhil argues that as with Mr. Ahmad, more effort should have been made to ensure Mr. Fadhil understood his rights at the outset. This was particularly so given that the terminology used in the recitation of rights and caution such as “reasonable and probable grounds” are not words that are commonly understood. Counsel identified another passage in the interview where it was clear that Mr. Fadhil did not understand the term “sexual assault” as an example. Counsel concedes that while the accused’s level of comprehension in the Singh ONSC case was far worse than Mr. Fadhil’s, the caselaw has nonetheless recognized that there is a distinction between one’s ability to function in a day-to-day or work context as opposed to a legal context. Mr. Fadhil’s French was not of a level that he understood his jeopardy and right to silence. In this respect, his statement was not voluntarily given.

[31] Both counsel also argue that even if the statements are found to be voluntary, language capacity can still be a consideration in the weight to be given to the contents of the statement: Blackduck at para 72.

[32] Arguments with respect to the particulars of each statement are addressed further below.

Issue 1: Was Mr. Fadhil’s statement voluntary?

Additional facts relating to Mr. Fadhil’s statement

[33] Det. Dompierre phoned Mr. Fadhil at 4:00 pm on December 6, 2018 and identified himself as a police officer. He told Mr. Fadhil that he had reasonable and probable grounds to believe that Mr. Fadhil participated in a sexual assault and that he needed to turn himself in. Mr. Fadhil agreed to attend the detachment the following day on December 7, 2018 at 9:00 am.

[34] Det. Dompierre testified that during the telephone conversation, he advised Mr. Fadhil that he had the right to contact a lawyer and that Mr. Fadhil understood this.

[35] Mr. Fadhil attended the detachment the following day as scheduled. Det. Dompierre greeted him and took Mr. Fadhil to a non-public area. In the presence of Det. Riopel, Det. Dompierre arrested Mr. Fadhil for sexual assault. He gave Mr. Fadhil his right to counsel and cautions as per the OPS form which was filed as an exhibit. Det. Dompierre testified that Mr. Fadhil was asked if he understood and he indicated yes. Det. Riopel conducted a pat down search. Mr. Fadhil was then taken to a room and interviewed. Mr. Fadhil was never handcuffed during his interaction with the officers.

[36] Det. Riopel also worked in the same unit as Det. Dompierre. At the time, he had been an OPS officer since 2003. Det. Riopel testified that it was customary for two officers to deal with suspects who were turning themselves in. Det. Dompierre had asked him to assist with the arrest of Mr. Fadhil and Mr. Ahmad.

[37] Det. Riopel’s description of events essentially corroborated Det. Dompierre. Det. Riopel testified that Det. Dompierre greeted Mr. Fadhil in the lobby and then brought him to a non-public area located just in front of the elevators where he arrested Mr. Fadhil and told him why he was there. He acknowledged that he had not made any notes about the rights provided to Mr. Fadhil or Mr. Ahmad at the time of the arrest.

[38] Det. Riopel testified his role was to search the accused. In order to do this, he provided Mr. Fadhil with various instructions such as asking him to remove his coat, put his hands on the wall, widen his stance, and reach into his pockets. Det. Riopel testified that Mr. Fadhil was able to understand all his instructions. However, he acknowledged in cross-examination that he would have likely been gesturing with his hands which would make it easier for Mr. Fadhil to understand his instructions. Following the arrest, Mr. Fadhil was taken to the interview room and Det. Riopel went to the monitoring room.

[39] Det. Riopel testified that he did not make any threats, promises, or inducements and his physical contact with each accused was limited to the search. Det. Riopel testified that he did not have difficulty communicating or understanding Mr. Fadhil.

[40] The video was already recording when Mr. Fadhil entered the interview room. The interview with Mr. Fadhil commenced at 9:06 am and ended at 11:34 am.

[41] Prior to questioning Mr. Fadhil, Det. Dompierre provided Mr. Fadhil with a recap of the circumstances that had brought Mr. Fadhil to the detachment. He also asked Mr. Fadhil if he had contacted a lawyer. Mr. Fadhil replied he had not. Det. Dompierre asked if he would like to. Mr. Fadhil said he would like to speak to a lawyer and indicated that he knew Joseph Addelman. Det. Dompierre arranged to call Mr. Addelman, but he was not available. Mr. Fadhil spoke instead to Jason Gilbert, another counsel from Mr. Addelman’s firm. At around 9:45 am, Mr. Fadhil returned to the interview room for questioning.

[42] At that point, Det. Dompierre provided another recap of the telephone call with counsel. He asked Mr. Fadhil if he was satisfied with his right to speak with a lawyer as it had been provided to him and Mr. Fadhil stated yes.

[43] Det. Dompierre proceeded to question Mr. Fadhil. Det. Riopel was in another room monitoring the interview. The video recording was played in court. A transcript of the interview, along with an English translation, were also filed as exhibits.

Analysis

[44] Upon review of the evidence, including the audio recording itself, I find that Mr. Fadhil’s statement was made voluntarily for the reasons set out below.

1. There is no evidence of threats, promises or inducements:

[45] It is apparent from reviewing the video that Det. Dompierre did not make any threats, promises or inducements during the interview. Furthermore, no evidence has been presented to suggest that either officer made threats, promises or inducements before the commencement of the video recording.

[46] Defence counsel raised concerns about the extent and quality of Det. Dompierre’s notes regarding Mr. Fadhil’s arrest at the detachment. While the circumstances of the arrest, right to counsel and caution were not video recorded, Det. Dompierre did indicate in his duty book notes that he read Mr. Fadhil his rights and caution and that Mr. Fadhil acknowledged he understood them. The fact that Det. Dompierre did not delineate Mr. Fadhil’s response to each right is of little consequence. I accept Det. Dompierre’s evidence, which was largely corroborated by Det. Riopel, that the arrest, reading of rights, and pat down search occurred as he described in his testimony.

[47] I also note that Det. Dompierre provided a recap of what transpired during the phone call and arrest at the start of the interview and before he commenced questioning Mr. Fadhil. Had any type of quid pro quo been held out or inducement been made earlier, one might have expected Mr. Fadhil to refer to it during this initial discussion. Mr. Fadhil does not mention any such thing during the interview. Likewise, Mr. Fadhil did not testify in the voir dire to suggest that anything untoward occurred.

2. There is no evidence of oppression:

[48] The context of the interview was not oppressive. There is nothing in the tone, manner, or nature of Det. Dompierre’s questioning that is threatening or disturbing. While the circumstances would be stressful for anyone in that situation, Mr. Fadhil appeared relatively calm. Mr. Fadhil was able to respond to the officer’s preliminary questions about his background with relative ease. He talked readily about his personal and family circumstances. Mr. Fadhil acknowledged he was on the Badoo dating site, that he knew the Complainant, and that he and the co-accused were at the Complainant’s residence on the day in question.

[49] Part way through the interview, Det. Dompierre attempted to solicit details about what transpired in the house. At this point it appeared that Mr. Fadhil had a change of heart. Mr. Fadhil told Det. Dompierre that he did not want to provide any more details in the absence of his lawyer. Det. Dompierre pressed on and tried different avenues of questioning. In some instances, the officer asked lengthy questions in which he recited facts about the alleged events to which Mr. Fadhil simply responded “M’mm-h’hmm”. I find these “M’mm-h’hmm” responses do not indicate lack of comprehension. When contrasted to the lengthier responses given earlier, it could equally have been a deliberate decision on Mr. Fadhil’s part to hold back from giving the police too much information about what happened. As the interview progressed, Mr. Fadhil insisted more firmly and frequently that he did not wish to provide further details. Some examples are as follows:

• At page 48 of the interview transcript, the officer says “…And then what happened?” and Mr. Fadhil replies “I’d prefer talking with…when…when (unintelligible) my lawyer is here. I….”
• At page 49, the officer suggests it his “duty” to give Mr. Fadhil the facts and Mr. Fadhil replies “I understand”
• At page 50, the officer says “…I thank you for giving me details, but I…” to which Mr. Fadhil responds “If I want …if…if I want to go any further it will be with my lawyer”
• At page 51, the officer asks Mr. Fadhil how he can know he is not guilty if he does not know what sexual assault is, to which Mr. Fadhil replies “No, but I mean that I’m not guilty, uh, I’ll tell all that I know, all I have to say in front of my lawyer”
• At page 58-59, the officer says “I just want us to understand each other…am I just telling some stories out of Disney World, or is it something that is possible” to which Mr Fadhil replies “I…I don’t want to get into…into the story…”
• At page 59, the officer says “Okay. Yes, like I’ve said It’s your right to do that, but I still have to tell you the facts concerning this” to which Mr. Fadhil replies “Yeah”
• At page 64, the officer says to Mr. Fadhil that if he has “information that is completely contradictory, you should give it to me so I…I can do an investigation that will be accurate and complete” to which Mr. Fadhil replies “Mmm-h’hmm” and a little later “Like I told you, Martin, I don’t want…I don’t want…I don’t want to go…any further.”
• at page 65, the officer tells Mr. Fadhil that the officers found a condom in the apartment with sperm on it. Whether this is or is not true is unclear. The officer asks Mr. Fadhil that if they took a DNA sample and compared it to the sperm on the condom found at the scene, is it possible it would be his sperm to which Mr. Fadhil replies “I don’t know.”
• At page 66, Mr. Fadhil says several times he does not want to go into the story and that if he talks, “… it will be in front of a jury in front…(unintelligible)”
• At page 67, the officer tells Mr. Fadhil that “you are not leave me much option, only one side of the coin to which Mr. Fadhil replies “It’s not really…I don’t want…I’m not trying to be bad, I’m not trying to be good, I just want to be able to speak correctly, you understand?”
• At page 68, the officer starts discussing the issue of consent and asks Mr. Fadhil “Is that what you’re trying to tell me” to which Mr. Fadhil replies, “I don’t know” and a little later “I want …I want…I’ve told you Martin, I don’t want to go into it, I don’t want …I’m not going to say anything to you as long as…my lawyer is not here….”
• At page 70, the officer states so you would prefer to clarify what happens after you went into the door in the presence of your lawyer to which Mr. Fadhil replies “yes”

[50] I find these persistent attempts by Det. Dompierre to elicit additional information do not constitute threats or inducements. The police are entitled to resort to different techniques, short of trickery, to elicit information from an accused person: R. v. Hebert, [1990] 2 SCR 151. Det. Dompierre is an experienced officer with over 20 years of experience in law enforcement. He was entitled to try different ways to draw out information from the accused. His questioning in the latter part of the interview was persistent, but not to the extent that it could be considered oppressive in that the accused’s will was overborne: Oickle at para 58.

[51] I also find that Mr. Fadhil’s repeated assertion that he does not wish to provide further details does not undermine the voluntariness of the statement. As stated in Singh [SCC], there may be circumstances where an officer’s continued questioning in the face of the accused’s repeated assertions of the right to silence denies the accused a meaningful choice of whether to speak or to remain silent. In that context, the accused is no longer exercising free will to give a statement: R v Singh [SCC] at para 53. I find, however, that this is not such a case. Mr. Fadhil was content with speaking to Det. Dompierre at the beginning and in several portions of the interview, providing Det. Dompierre with his own take on the events that transpired. At some point, however, Mr. Fadhil decided to refrain from providing further details, and he had no difficulty articulating this to the officer.

[52] I also agree with the Crown that it was Det. Dompierre’s prerogative to discuss the content of the Badoo text messages generally rather than showing Mr. Fadhil the exact wording of the text messages. This is not a form of trickery that would undermine the voluntariness of the statement. Having said that, I acknowledge that the use of a general rather than a verbatim account of the text messages may be a factor in assessing and weighing Mr. Fadhil’s responses to those questions.

[53] The parties do not dispute that Mr. Fadhil’s insistence that he would only speak further to the police in the presence of counsel did not require the police to stop questioning. The police are not precluded from using reasonable persuasion to encourage a detained person to break his silence after his right to silence has been asserted following the exercise of the right to counsel: Singh [SCC] at para 18, citing Hebert at para 15. Counsel also agrees that unless there was a change in Mr. Fadhil’s jeopardy, for example the emergence of grounds for an additional criminal charge, Det. Dompierre was not required to renew the right to counsel: R v Evans, [1991] 1 SCR 869. see also Sawatski (1997), OJ No 3561 (Ont. C.A.) at para 30.

3. Mr. Fadhil was of an operating mind:

[54] It is clear from the audio recording that Mr. Fadhil was of sound mind when he provided the statement. The statement was scheduled at a time agreeable to Mr. Fadhil. There was no evidence that he was impaired or tired when he gave the statement. Throughout the recording, he is alert and responsive to the questions.

4. There was no police trickery:

[55] There is no evidence before me that the police engaged in trickery such as would shock the public.

5. Mr. Fadhil’s language comprehension was not so deficient as to undermine the volition of his statement:

[56] Finally, I find that Mr. Fadhil’s language comprehension did not undermine the voluntariness of the statement. While Mr. Fadhil’s mother tongue is Arabic, I find that he was able to clearly understand and communicate in French. Mr. Fadhil stated he came to Canada in 2008 as a youth from Iraq. He settled in Sherbrooke, Quebec, and was schooled there. He was able to complete secondary education. While he presently lives in Ontario, he did previously live across the river in Gatineau, Quebec. In fact, his current driver’s license still has a Quebec address.

[57] Mr. Fadhil speaks more than a rudimentary level of French. This was apparent in the interview. Mr. Fadhil’s answers were generally short, but coherent and on point. He was able to formulate clear sentences and spoke fluently on a wide variety of topics. For example, he discussed his work, his family, his journey from Iraq, his marriage, his mother’s mental health, matters of social assistance, his participation on the dating website, his relationship with the co-accused, and his interactions with the complainant. Even when Det. Dompierre explained that he could get a warrant to produce information relating to his account on the Badoo dating site, Mr. Fadhil had no trouble understanding the terminology.

[58] Defence is correct in stating that Det. Dompierre speaks more quickly in the interview than Mr. Fadhil. However, I do not find that speed is determinative of his language comprehension. Mr. Fadhil understood the questions asked and was able to provide coherent answers. There were a few instances where Mr. Fadhil asked Det. Dompierre for clarification, for example, at one point he asked what the officer meant by the expression a longtime friend. However, asking for clarification of question does not mean one is not comprehending the conversation. This was not a situation where Det. Dompierre had to continuously repeat questions because of language issues. On the contrary, the interview proceeded smoothly with a consistent back and forth pattern of question and answers.

[59] Det. Riopel also testified that Mr. Fadhil had no issue following instructions in his dealings with him.

[60] I find that Mr. Fadhil’s ability to communicate in French was not so deficient that it was impossible for him to understand the officer or make a statement thereby undermining the voluntariness of the statement: Singh [ONSC] at paras 29-30.

[61] As both defence counsel have correctly pointed out, however, language comprehension is also relevant for determining a person’s understanding of their rights, including the right to silence. Where because of language incapacity a person does not fully appreciate their option to speak or not speak to the police or the consequences of making a statement, it is questionable whether their statement is truly voluntary and whether reliance on it would be fair: Singh [SCC] at para 34; Blackduck at paras 53 and 72.

[62] In Blackduck, for example, Justice Charbonneau found the accused had sufficient knowledge of English to communicate with the officer and respond to his questions. However, she found that “on the whole,” the accused’s understanding of English was ambiguous, and it was not clear that he understood everything the officer was saying to him. In those circumstances, Justice Charbonneau was not satisfied beyond a reasonable doubt that the accused understood his right to remain silent or that what he was saying could be used in a prosecution against him, and consequently, she found the statement to be involuntary: Blackduck at para 87-89.

[63] It is also important to recognize that the threshold for comprehension of one’s rights is not excessive. Although it was stated by the Supreme Court of Canada in the context of the operating mind analysis, the Court has noted that for an individual to comprehend their rights, they need only understand that their evidence can be used in proceedings against them: R v Whittle, [1994] 2 SCR 914 at p.939.

[64] The assessment of voluntariness is a contextual analysis and highly fact-specific: Oickle at para 47; Blackduck at paras 51 and 88. In this case, upon review of the video and transcripts, I find that that Mr. Fadhil’s French language comprehension was more than sufficient for him to understand his rights, including his right to silence.

[65] Det. Dompierre informed Mr. Fadhil of his right to counsel during the initial telephone call. While Mr. Fadhil did not speak to counsel prior to attending the detachment, it was clear he did understand the instruction and came to the interview prepared with the name and number of local counsel Joe Addleman. This in and of itself speaks to his level of comprehension around his rights, albeit the right to counsel.

[66] Mr. Fadhil was also given an opportunity to speak with counsel before the questioning began. While counsel argues that he was not provided his right to counsel of choice, Mr. Fadhil did speak with a lawyer at Mr. Addleman’s firm by the name of Jason Gilbert. Upon returning to the interview room, Det. Dompierre did a recap of what had transpired around the call to counsel including that Mr. Fadhil had agreed to speak to Mr. Gilbert which Mr. Fadhil acknowledged. Det. Dompierre then asked Mr. Fadhil if he was satisfied with the right to speak to a lawyer that has been provided for you and Mr. Fadhil said yes. While one cannot discern what was discussed with counsel, Mr. Fadhil would have had at minimum an opportunity to ask counsel about his options about speaking to the police.

[67] In addition, Mr. Fadhil was provided the primary and secondary caution following his arrest. This was done in a non-public area of the police detachment and in the presence of a second officer. Det. Dompierre repeated the caution again at the start of the interview.

[68] In short, Mr Fadhil was provided his rights several times. This was not a situation where he heard reference to his rights only once and was then forced to launch immediately into an interview. I find that Mr. Fadhil’s French language comprehension was sufficient for him to understand what he was being told and to seek clarification should he require it.

[69] I also find that Mr. Fadhil’s responses during the interview demonstrate that he was aware of his jeopardy and right to silence. During the first half of the interview, Mr. Fadhil was comfortable with discussing a wide variety of subjects including some events related to the charge. However, at a certain point, Mr. Fadhil decided that he did not wish to provide the officer with additional details concerning the alleged charges in the absence of his lawyer. The reason for this change is unknown. What is important, however, is that once he made that determination, Mr. Fadhil did not hesitate to let Det. Dompierre know. As demonstrated in the passages cited above, despite Det. Dompierre’s persistent questioning, Mr. Fadhil repeated his refusal to provide further details multiple times and sometimes quite firmly. I find that this indicates he understood his jeopardy and that he had the option to speak or not speak to the police.

[70] The facts of this case are distinguishable from the facts in R v Singh, 2015 ONSC 7376, Blackduck and R v Abugattas-Osorio, 2014 ONSC 4922 filed by defence counsel. In all of those cases, the transcripts of the interviews reviewed critical gaps in comprehension and the language proficiency of the accused was much more limited than Mr. Fadhil’s: Singh 2015 at para 12; Abugattas-Osorio at paras 31-32; Blackduck at paras 87-88.

[71] For all these reasons, I find that Mr. Fadhil made a voluntary statement that may be relied upon by the Crown at trial.

Issue 2: Was Mr. Ahmad’s statement voluntary?

Additional facts related to Mr. Ahmad’s statement

[72] On Friday December 7, 2018, Det. Dompierre called Maestro barber shop and asked to speak to Moodie. The person answering identified himself as Moodie. Det. Dompierre asked him his real name and he replied it was Mahmood Albasrawi. The person stated that Albasrawi was his common name, but that his family name was Ahmad. Det. Dompierre advised Mr. Ahmad that he had reasonable and probable grounds to believe he had committed a sexual assault. He asked Mr. Ahmad to turn himself in, and it was arranged that he would attend the detachment at 7:00 pm on Monday December 10, 2018.

[73] Det. Dompierre testified that Mr. Ahmad did not appear to have any issues with speaking in English during their telephone call. He testified that Mr. Ahmad expressed concerns about the charge and asked him who had accused him and what the facts were. According to Det. Dompierre, Mr. Ahmad’s tone of voice suggested he was concerned. Det. Dompierre testified he told Mr. Ahmad that he had the right to contact a lawyer.

[74] Unlike for Mr. Fadhil, Det. Dompierre acknowledged in cross-examination that he did not have handwritten or duty book notes about his telephone conversation with Mr. Ahmad on December 7th or the subsequent arrest of Mr. Ahmad on December 10th. He recorded the information related to these two events not long after in an Investigative Action (IA) report.

[75] During cross-examination, Det. Dompierre also acknowledged that there was no reference in his IA report that he told Mr. Ahmad he could speak to a lawyer in advance, but that this was his practice over the last nine years. It is clear from reviewing Mr. Ahmad’s interview that Det. Dompierre must have said something about the right to counsel because when Mr. Ahmad attended the interview on December 10th, he told Det. Dompierre that his understanding was that he was not to contact counsel.

[76] Mr. Ahmad attended the detachment as scheduled. Det. Dompierre met him and escorted him to a non-public area and arrested him. At 7:11 pm, Det. Dompierre read Mr. Ahmad his right to counsel and secondary caution from the OPS form which was filed as an exhibit. Det. Riopel was present for the arrest and conducted a pat down search.

[77] Det. Riopel testified that he was also involved in the arrest of Mr. Ahmad and the procedure used was essentially the same as with Mr. Fadhil. Det. Riopel testified that he provided the same types of instructions to Mr. Ahmad for the search as he did to Mr. Fadhil. He testified that Mr. Ahmad had no issue understanding and following those instructions. However, Det. Riopel did acknowledge he would have likely been gesturing with his hands as gave the instructions.

[78] Det. Riopel testified that he could not recall which language he spoke to with Mr. Ahmad or Mr. Fadhil, but that he would have spoken to them in the same language that Det. Dompierre used and it would have been either English or French.

[79] Following the arrest and search, Mr. Ahmad was taken to the interview room where he was interviewed by Det. Dompierre. Det. Riopel went into the monitoring room. Det. Riopel testified that he did not make any threats, promises, or inducements and his physical contact with Mr. Ahmad was limited to the search.

[80] At the start of the interview, Det. Dompierre informed Mr. Ahmad that the interview would be recorded. He then reviewed with Mr. Ahmad what had transpired during the telephone call, the arrest, and the rights that had been provided following the arrest. Det. Dompierre told him that he had informed him he had the right call a lawyer and it was at this juncture that Mr. Ahmad stated he had misunderstood this during the telephone call. Det. Dompierre said he would read him his rights and if he wanted to speak to a lawyer, he would have a chance.

[81] Det. Dompierre mentioned there was a list of lawyer names and numbers. He then proceeded to give Mr. Ahmad his rights to counsel again. Mr. Ahmad acknowledged he understood. Det. Dompierre asked him if he wished to speak to a lawyer. Mr. Ahmad was not certain and said, “[w]ell honestly I never been in that situation before, so….” Det. Dompierre responded that it was his duty to inform him of his right to consult a lawyer and asked him again if he wanted to call a lawyer right now to which Mr. Ahmad replied “no.” Det. Dompierre told Mr. Ahmad that if he did wish to contact a lawyer at any time, they could stop the interview and address the situation to which Mr. Ahmad replied, “[s]ounds good.”

[82] Det. Dompierre then provided Mr. Ahmad his primary and secondary caution. At the end of the recitation of rights, Det. Dompierre went one step further and asked Mr. Ahmad to explain these rights to him in his own words. Mr. Ahmad indicated what he understood was that he had the right to speak to a lawyer. Det. Dompierre reiterated to Mr. Ahmad that he also had the “right to talk or not. It’s …It’s your right to say nothing and it’s your right to say something, but you can decided that. That’s the first…” to which Mr. Ahmad replied “yeah”.

[83] Det. Dompierre then repeated to Mr. Ahmad that he had the right to contact a lawyer. They could stop the interview and he could contact a lawyer. Det. Dompierre offered Mr. Ahmad the opportunity again to call someone on a list of lawyers or to call legal Aid. Det. Dompierre confirmed with Mr. Ahmad again that he did not wish to call a lawyer and Mr. Ahmad said “yeah”.

[84] Det. Dompierre then proceeded to question Mr. Ahmad about the alleged events.

[85] About an hour into the interview, just after 8 pm, Mr. Ahmad indicated he wished to speak to lawyer. Arrangements were made for Mr. Ahmad to speak to legal aid counsel in a private room. Mr. Ahmad spoke to a lawyer named Jean Richer from 8:30 pm to 8:40 pm.

[86] Following this conversation, Mr. Ahmad returned to the interview room and Det. Dompierre resumed his questioning. Mr. Ahmad continued to participate in the interview but indicated that he had said enough and that he “can’t go more than that”. Mr. Ahmad indicated that everything he had to say was recorded and that if the officer wanted anything more, he should talk to the lawyer.

[87] Following the interview, Det. Dompierre explained to Mr. Ahmad that he would be released on an undertaking and that he would also have to attend for fingerprinting. Det. Dompierre reviewed various documents with him. Mr. Ahmad confirmed he had two firearms and a license and Det. Dompierre explained that arrangements were to be made for the police to apprehend those. Mr. Ahmad was released at 9:25 pm.

[88] Det. Dompierre testified that he did not make any threats, promises, or inducements to Mr. Ahmad. The only physical contact was at the time of arrest when he placed his hand on Mr. Ahmad’s shoulder, which he customarily does when he is arresting someone.

[89] Det. Dompierre acknowledged that Mr. Ahmad spoke with an accent and that from his name he presumed Arabic was his first language. However, Det. Dompierre testified he had no concerns that Mr. Ahmad had any issue communicating in English. Det. Dompierre testified that Mr. Ahmad was responding to and understanding the questions he asked. Mr. Ahmad had also understood the instructions regarding the date and time of the interview. Det. Dompierre testified that he did not perceive Mr. Ahmad as having any issues with understanding English and this remained his position even after watching the interview in court.

[90] During the voir dire, corrections had to be made to the transcript of Mr. Ahmad’s statement. There were four discrepancies that were not resolved which counsel have left for me to review and decide on. Counsel indicates they may not be relevant to the voir dire ruling but could have an impact in the trial proper should the defence elect to call evidence. I agree that the discrepancies are not relevant for this decision. Should a ruling on these discrepancies in the transcript be required at a later point, they will form part of a separate endorsement.

Analysis

[91] Upon review of the evidence, including the audio recording itself, I find that Mr. Ahmad’s statement was made voluntarily for the following reasons.

1. There is no evidence of threats, promises or inducements:

[92] It is clear from the audio recording that Det. Dompierre made no threats, promises, or inducements when questioning Mr. Ahmad.

[93] Furthermore, no evidence has been presented to suggest that either officer made threats, promises or inducements prior to the video recording. Det. Dompierre’s evidence about what transpired at the time of arrest was largely corroborated by Det. Riopel.

[94] I also note that Mr. Ahmad informed Det. Dompierre at the outset of the interview that he misunderstood his right to counsel when the officer initially called him. Had there been any inducement or promise made earlier, one would have expected Mr. Ahmad would have raised it at the same time.

2. There is no evidence of oppression

[95] There was nothing oppressive about the circumstances in which the statement was taken. Like with Mr. Fadhil, Det. Dompierre called Mr. Ahmad ahead of time and asked him to turn himself in at the detachment, which he did. Mr. Ahmad attended the interview at a time that was agreeable to him. Mr. Ahmad was greeted at the detachment, taken into a non-public area, and arrested. He was never handcuffed, and no force was ever used against him.

[96] It is clear from the video that there was nothing harsh or overbearing about the way Det. Dompierre treated Mr. Ahmad such that his will was overborne. There was nothing in the circumstances of the interview to suggest that this was a stress-induced confession: R v Arjun, 2013 BCSC 2076 at para 64, appealed and upheld on other grounds, 2015 BCCA 273, leave to appeal denied, [2015] S.C.C.A. No. 324.

3. Mr. Ahmad was of an operating mind:

[97] Mr. Ahmad was of sound mind when he gave his statement. Mr. Ahmad understood the questions and provided coherent answers. He was not impaired or fatigued. He was clearly nervous about the situation, but this did not impact his ability to participate in the interview. Mr Ahmad was alert throughout the interview and able to follow Det. Dompierre’s instructions including at the end when discussing release documents. There was no evidence to suggest that Mr. Ahmad did not have an operating mind.

4. There was no police trickery:

[98] There is no evidence that the police engaged in trickery such as would shock the public.

5. Mr. Fadhil’s language comprehension was not so deficient as to undermine the volition of his statement:

[99] Finally, I found that Mr. Ahmad was able to understand and communicate in English at a level that did not undermine the voluntariness of the statement. Like Mr. Fadhil, Mr. Ahmad’s first language was Arabic. Mr. Ahmad told Det. Dompierre he had immigrated to Canada in 2012 when he was 20. He had been living in Canada for about six years when he gave the statement. He explained to Det. Dompierre that he had been educated prior to coming to Canada and attended further schooling, including ESL, as an adult upon his arrival here. When asked if he spoke English before coming to Canada, Mr. Ahmad explained he did study before and had some certificates.

[100] Mr. Ahmad clearly had more than a rudimentary level of English. He did not appear to have any comprehension issues during the interview. Mr. Ahmad understood the police questions and responded to them easily. His answers were generally short and to the point. There was a consistent back and forth of questions and answers throughout the interview. It was not a situation where Det. Dompierre had to repeat questions because Mr. Ahmad was not able to understand or follow along. Mr. Ahmad spoke easily about his family, his work, his education, his relationship with the co-accused, as well as what had transpired on the night of the alleged charges.

[101] Defence counsel made references to some instances when Mr. Ahmad was confused by a question. For example, at page 9 the officer was trying to figure out the number of people in the household and asked Mr. Ahmad about his siblings to which Mr. Ahmad replied “married”. I find that this was not a language comprehension issue but Mr. Ahmad simply being too quick to answer. Similarly, at page 25 the officer was trying to elicit information about the date of the alleged sexual assault and asked Mr. Ahmad “Do you remember what month it…it was” to which Mr. Ahmad replied “What do you mean?” I do not find that this response is necessarily a language comprehension issue because when one examines the questions before, Mr. Ahmad had already told the officer he did not remember the date and could genuinely have been confused by the officer’s repeated questions around the date.

[102] In short, this was not a situation where Mr. Ahmad’s language skills were so deficient that he did not understand what the police said thereby undermining the voluntariness of the statement: Singh [ONSC] at para 29-30; Arjun at para 59.

[103] The other aspect, of course, is whether Mr. Ahmad’s language comprehension was sufficient to enable him to genuinely understand his jeopardy and his right to silence. As previously indicated, the modern day confessions rule includes the right of a detained person to make a meaningful choice whether or not to speak authorities: Singh [SCC] at para 35. In determining voluntariness, I must also scrutinize whether the accused understood his right to silence: Singh [SCC] at para 37.

[104] Unlike Mr. Fadhil, Mr. Ahmad did not speak to counsel prior to the start of the officer’s questioning, even though the offer was extended to him several times. After an hour of questioning, Mr. Ahmad changed his mind and asked to speak to counsel. It was clear that after he spoke to counsel, Mr. Ahmad shut down and decided not to provide the officer further details about the alleged offences. However, I find the fact that he chose to assert his right to silence after speaking to counsel does not necessarily mean that he did not understand his right to silence earlier in the interview and prior to calling counsel.

[105] In this case, prior to starting his questions, Det. Dompierre discussed Mr. Ahmad’s right to counsel with him four times. This was in addition to giving him his right to counsel at the time of arrest. Det. Dompierre also went a step further and asked Mr. Ahmad to explain his rights in his own words. Mr. Ahmad responded by saying he understood he had a right to counsel. This was more than a mechanical recitation of rights.

[106] Furthermore, Mr. Ahmad acknowledged he understood what was being told to him. The fact that he chose not to exercise his right to counsel at the outset of the interview was not an issue of language comprehension, but indecision. I find that Mr. Ahmad’s responses indicate he understood that he had a right to call a lawyer at the start of the interview, but he just was not sure if he wanted to call one at that point in time.

[107] More importantly, in cases where the accused has not spoken to counsel before giving a statement, the police caution plays a crucial role in making the detainee aware of his or her right to silence and can be a factor in determining the voluntariness of the statement: Singh [SCC] at para 33; Blackduck at para 74. In this case, while Mr. Ahmad did not exercise his right to counsel at the outset, he was granted a caution. Det. Dompierre read him the primary caution initially at the time of arrest straight from the OPS form filed as an exhibit which states: You will be charged with…Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but anything you say may be given in evidence.

[108] Det. Dompierre then went over the caution again at the start of the video-recorded interview indicating: “So basically, as we talk, if you decided to do any statement, what you say could be used in a court of law. So you have to understand that you don’t need to say anything but if you speak or if you say anything, that statement, those statements could be used in a court of law.”

[109] Det. Dompierre then provided Mr. Ahmad the caution a third time with Mr. Ahmad re-explaining to him in simpler language: “…the first thing is you have the right to talk or not. It’s …It’s you right to say nothing and it’s your right to say something but you can decided that. That’s the first….” to which Mr. Ahmad replied “Yeah”.

[110] I find that Mr. Ahmad’s comprehension of English was more than sufficient to understand the meaning of the caution in each of these instances.

[111] In addition, part way through the interview, Mr. Ahmad decided he did not want to speak further without counsel. While this concerns more specifically an assertion of his right to counsel, it is also indicative of the fact that Mr. Ahmad understood that he had a right to stop talking to the police should he wish to do so. Following the call to counsel, Mr. Ahmad continued to assert that right to silence, telling the officer on several occasions he did not want to say anything further.

[112] Finally, even though Mr. Ahmad misunderstood the officer’s instruction on the telephone regarding his right to call counsel, I find that there was nothing in the interview that ought to have led the officer to question Mr. Ahmad’s English proficiency This was not a situation as in the case of Arjun where the accused’s limited language comprehension would have been obvious to anyone speaking to the accused and should have prompted the police to take further reasonable steps to ascertain the accused understood their constitutional rights: Arjun at para 91.

[113] When all the circumstances are considered, I am satisfied that Mr. Ahmad understood his right to silence before he was interviewed and the statement he gave was voluntary. Any other issue with respect to language difficulty, and in particular the meaning to be given to any particular responses in the interview, is a matter of weight to be considered at trial: R v N.P., 2010 ONSC 5245 at para 34.

Date: March 3, 2021 Released: March 3, 2021

COURT FILE NO.: 18-5176 DATE: 2021/03/03

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – Mahmood Ahmad and Salam Fadhil Applicants

RULING ON VOLUNTARINESS OF STATEMENTS Somji J.