COURT FILE NO.: CR-21-101265

DATE: 2022/08/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Ousmane Kromah

BEFORE: G. E. Taylor, J.

COUNSEL: Alyssa Bain and Katherine Enns, Counsel for the Crown Malcolm McRae and Cooper Lord, Counsel for Ousmane Kromah

HEARD: June 14 - 17, 20 - 24, 28, and 29, 2022

ENDORSEMENT

Introduction

[1] Ousmane Kromah is charged with manslaughter, two counts of aggravated assault and two firearm offences. The circumstances giving rise to the charges occurred on December 15, 2019. He was interviewed by the police on January 3, 2020 following the execution of a general warrant for the purpose of seizing his cell phone and on May 4, 2020 subsequent to his arrest on the present charges.

[2] The Crown seeks a ruling that each statement was voluntary. Ousmane Kromah seeks the exclusion of both statements on the basis that his rights pursuant s. 9 and 10(b) of the Charter of Rights and Freedoms were violated and that admission of the statements as evidence at his trial would bring the administration of justice into disrepute contrary to s. 24(2) of the Charter.

[3] The parties agreed that these issues were best addressed by proceeding as a blended voir dire in which the Crown bore the burden of proving that the statements were made voluntarily and Ousmane Kromah bore the burden of proving a breach of one or more Charter rights and that because of the Charter violation(s), the statements should be excluded from evidence at the trial.

[4] The voir dire proceeded over 11 days during which 16 witnesses were called to give viva voce testimony and the evidence of two witnesses was received by way of Agreed Statement of Facts.

The Offences

[5] On December 15, 2019, Yafiet Rezene was shot and killed at a house party at 16 Windale Crescent in the City of Kitchener. James Anwar and Jordan Bailey were shot and injured at the same party. The investigation with respect to the events in question was conducted by the Waterloo Regional Police Service. Det. Andrew Kroetsch was assigned as the primary investigator.

[6] Early in the ensuing investigation, police received information about a person known as “Uzi”, believed to be Ousmane Kromah, having been at 16 Windale Crescent in possession of a handgun around the time of the shootings. The police also learned that on December 15, 2019 at 4:22 a.m., a person using a cell phone number associated with Ousmane Kromah had called for a taxi to pickup a fare at the Shopper’s Drug Mart at 1400 Ottawa Street South, which is about 600 metres west of 16 Windale Crescent. The person who called for the taxi was dropped off at 164 Lorraine Avenue which is approximately 200 meters north of Ousmane Kromah’s home address of 18B Montcalm Drive.

January 3, 2020 Statement

Evidence

[7] On December 23, 2019, Ousmane Kromah became a suspect in relation to the shootings at 16 Windale Crescent. On December 24, Det. James Christie began drafting an Information to Obtain for a general warrant to seize Ousmane Kromah’s cell phone. On December 31, Det. Kroetsch began drafting an Operational Plan and Risk Assessment for the execution of the general warrant. In the course of drafting the Operational Plan it was decided to seek to interview Ousmane Kromah following the execution of the general warrant. There had been no contact with Ousmane Kromah prior to the execution of the warrant.

[8] The original plan developed by Det. Kroetsch was to have the warrant executed by members of the Mobile Surveillance Unit (“MSU”). In the course of obtaining approval for the Operational Plan a S./Sgt. and Superintendent considered the execution of the warrant to be “high risk” and directed that it be executed by members of the Emergency Response Unit (“ERU”).

[9] In a section of the Operational Plan entitled “Deliberate Action Plan” the following is stated:

MSU will establish surveillance at KROMAH’s residence located at B-18 Montcalm Dr, Kitchener. MSU will conduct mobile surveillance of KROMAH away from his residence and maintain static surveillance of the residence after KROMAH departs. MSU will confirm KROMAH is in possession of his cell phone through observation or a cold call. At an appropriate time and location, considering everyone’s safety, ERU will detain KROMAH in accordance with the terms and conditions of the General Warrant and seize his cell phone. The decision to detain KROMAH will be made by the ERU Tactical Commander. Cyber Crime will take custody of the seized cell phone and take steps to access the phone/secure evidence. Major Crime Investigators will read KROMAH his RTC [right to counsel] and C [caution] and serve a copy of the General Warrant. Major Crime Investigators will attempt to obtain a Cautioned Statement from KROMAH.

[10] The general warrant was issued on December 31, 2019. The terms of the warrant included the following:

1. The warrant shall authorize police to stop and search the subject Ousmane KROMAH (1997/01/01), for any mobile phones that may be on his person and/or in his possession, and seize them.

2. The police officers executing the warrant shall readily identify themselves as such and provide KROMAH with a copy of the warrant at the time of execution. The subject shall be advised of his rights and that he is under no obligation to make any statement to police nor respond to any questions.

3. The warrant shall authorize police to detain KROMAH at the time of execution, but only for so long as is reasonably necessary under the circumstances. Afterwards, the subject shall be immediately released, unless some other lawful authority for detention or arrest has arisen. Police shall only use as much force as is reasonably necessary under the circumstances to facilitate this detention and execution of the warrant.

4. Due to the reasonable belief that KROMAH may be in possession of a firearm, officers executing the warrant shall be allowed to conduct a pat down search of KROMAH’s person during the detention for safety purposes; namely to check for firearms and weapons.

[11] On January 3, 2020, Ousmane Kromah was observed by MSU to leave his residence at 18B Montcalm Drive. He was observed to be a passenger in a vehicle that travelled to the Stanley Park Plaza. Ousmane Kromah went into an LCBO store at the plaza. As he exited the LCBO store he appeared to be talking on his cell phone. The decision was made to execute the general warrant. Members of the ERU blocked the vehicle in which Ousmane Kromah had traveled to the plaza. By the time ERU officers arrived at the vehicle, Ousmane Kromah was seated in the passenger seat.

[12] ERU officers, Cst. Conor Smith and Cst. Jarrett Brown went to the passenger side of the vehicle, both with weapons drawn. Cst. Brown opened the door and Ousmane Kromah was removed from the vehicle by the officers grabbing his arms. He was placed face down on the ground. He was then handcuffed and searched for weapons. No weapon was found. Ousmane Kromah was detained at 3:52 p.m.

[13] At 3:52 p.m., Ousmane Kromah was advised by Cst. Smith of the ERU that he was being detained and was being searched for weapons. Cst. Smith was concerned about the possibility of there being a firearm in the car. Once he deemed the scene to be safe, which took about five minutes, Cst. Smith assisted Ousmane Kromah to his feet and advised him that he was being detained on the strength of general warrant. Cst. Smith advised Ousmane Kromah that he had the right to speak to a lawyer. He did not read the right to counsel advice using the printed form from his notebook. He then escorted Ousmane Kromah to the rear of the vehicle.

[14] Sgt. Matthew Allen of the ERU observed Ousmane Kromah lying on the ground next to the passenger door of the vehicle. There was a cell phone approximately one foot away from him. Sgt. Allen retrieved the phone and placed it on the trunk of a car. One of the investigating officers called the phone on the trunk to confirm it was the phone they were interested in. The investigators were satisfied that the phone was one they were authorized to seize so at 3:54 p.m., Sgt. Allen turned the phone over to Det. Oliver Ammendolia of Cyber Crimes.

[15] Det. Ammendolia testified that he received a cell phone from Sgt. Allen at 3:58 p.m. and he left the scene at 4:02 p.m.

[16] Det. Sgt. Aaron Mathias and Det. Jesse Kingscote of Major Crimes arrived at the scene. At 3:59 p.m., Det. Sgt. Mathias advised Ousmane Kromah that he was being investigatively detained for murder and possession of a restricted firearm. He informed Ousmane Kromah that he had the right to retain and instruct counsel without delay. Ousmane Kromah said he understood his right to counsel. When asked if he wanted to call a lawyer he responded: “Honestly I’d like to I’d like to know what this is all about again why am I being arrested”. Ousmane Kromah said he wished to remain silent “for now”. Det. Sgt. Mathias’ interaction with Ousmane Kromah was recorded between 3:59 and 4:01 p. m. at which time the recording device was turned off.

[17] Sgt. Barrie Hummel and Cst. Ivan Morrell, both ERU officers, dealt with the driver of vehicle in which Ousmane Kromah was the passenger. There was a cell phone on the driver’s lap and another cell phone on the console between the front seats. Sgt. Hummel advised Det. Sgt. Mathias and Det. Kingscote about the two cell phones observed by he and Cst. Morrell.

[18] All police officers who had any contact with Ousmane Kromah during the execution of the general warrant and subsequent events testified that the were no promises, inducements or threats made to Ousmane Kromah.

[19] Det. Kingscote testified that Ousmane Kromah was in his custody while Det. Sgt. Mathias advised him of the reason for the detention and his right to retain and instruct counsel without delay. He said there was some confusion about how many cell phones Ousmane Kromah possessed. This confusion related to the cell phone on the console of the car between the seats. Ousmane Kromah was told he would be released as soon as the issue about possession of the phones was resolved. Ousmane Kromah described his cell phone and indicated that the phone from the console might be his. Det. Kingscote retrieved the cell phone which had originally been on the console and showed it to Ousmane Kromah who said it was not his. The driver acknowledged to Cst. Smith that the phone on the console was his.

[20] After 4:01 p.m., while efforts were underway to confirm whose cell phone was on the console of the car, Det. Kingscote confirmed with Ousmane Kromah that he did not want to speak to a lawyer. He also told Ousmane Kromah that he would be released unconditionally and that the police were interested in speaking to him either that day or on another day. Ousmane Kromah was not advised that he could refuse to speak to the police at all. Ousmane Kromah agreed to speak to the police that day. At 4:10 p.m., after it was confirmed that the cell phone from the console belonged to the driver, Ousmane Kromah was released unconditionally and was told he was free to leave.

[21] Det. Kingscote testified that Ousmane Kromah was subject to investigative detention from at least 3:56 p.m. until 4:10 p.m. when he was released unconditionally.

[22] Det. Kingscote testified that he continued his conversation with Ousmane Kromah after the detention was terminated. He told Ousmane Kromah that investigators wished to speak to him. He explained that there was no obligation to do so and that he could speak to counsel before attending for an interview. Ousmane Kromah wanted to speak to his mother so he borrowed the driver’s cell phone. He was unable to reach his mother. Det. Kingscote explained that a warrant was being executed at 18B Montcalm Drive and that could explain why his mother was not answering the phone. Det. Kingscote asked Ousmane Kromah if he wanted to be dropped off at his home or if he was prepared to attend at the police station for an interview that day. Ousmane Kromah said he would go to the police station for an interview. Although this conversation was not recorded because Det. Sgt. Mathias had turned off the recorder, Det. Kingscote testified that he made notes of his conversation with Ousmane Kromah that same day after completing the interview with Ousmane Kromah.

[23] According to Det. Kingscote, at 4:19 p.m. he entered a police van with Ousmane Kromah to be driven to Central Station. The other officers in the van were Cst. Smith of ERU and Det. Sgt. Mathias. The transport to the police station was audio recorded by Det. Sgt. Mathias. When they arrived at Central Station, Det. Sgt. Mathias entered the front lobby with Ousmane Kromah. Det. Sgt. Mathias directed Ousmane Kromah to sit in the lobby while an interview room was made available. Ousmane Kromah was told there was a phone he could use if he wanted to make any calls. The drive time to Central Station was approximately ten minutes.

[24] The entry to Central Station was video recorded. Det. Sgt. Mathias and Cst. Smith entered with Ousmane Kromah who was then left alone for approximately three minutes. Det. Sgt. Mathias approached Ousmane Kromah, had some communication with him for about 15 seconds and then Ousmane Kromah was left alone again for approximately six minutes at which point he was escorted to the interview room.

[25] The interview of Ousmane Kromah began at about 4:40 p.m. It was audio and video recorded. Det. Kingscote conducted the interview. At the beginning of the interview, Det. Kingscote advised Ousmane Kromah that he was free to leave at any time. Ousmane Kromah agreed that after the cell phone was seized he was told he was free to leave the location where he had been detained. Ousmane Kromah also agreed that he had been given an opportunity to try to call his mother but he was not able to reach her. He said “so I figure why not talk to you guys too”.

[26] Ousmane Kromah was informed that he was not under arrest but that the investigation was in relation to charges of murder and possession of a restricted firearm. He was advised of the right to retain and instruct counsel without delay, that free legal advice was available from Legal Aid and he was given the number which would put him into contact with duty counsel. Ousmane Kromah stated that he did not wish to exercise his right to call a lawyer. He was told if he changed his mind and decided he wanted to speak to a lawyer the interview would be paused for that purpose. Ousmane Kromah said he wanted to hear what the police had to say and then he would decide if he should retain a lawyer.

[27] Det. Kingscote told Ousmane Kromah that he was a suspect in the homicide investigation. He was again told he could interrupt the interview to speak to a lawyer and that he could terminate the interview at any time.

[28] Ousmane Kromah did not testify on the voir dire.

Voluntariness

[29] The leading case on the voluntariness of statements is the decision of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The onus is on the Crown to prove beyond a reasonable doubt that the statement was made voluntarily. 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, 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 (paras. 68, 69 and 71).

[30] The first point to address is the manner in which Ousmane Kromah was detained on the date of the interview. The detention was effected by members of the ERU because it was considered by senior police officers to be a high risk situation. The uniforms being worn by the ERU officers clearly identified them as police officers. Weapons were drawn by some of the officers. Ousmane Kromah was forcibly removed from the passenger seat of the vehicle and placed on the ground by the ERU officers. I accept that this would have been a frightening and stressful interaction for Ousmane Kromah.

[31] However, I also conclude that the involvement of the ERU officers in effecting the detention was relatively brief. Once a pat down search had been completed and no weapons were found, Ousmane Kromah was allowed to get to his feet. There was also a concern that the vehicle in which Ousmane Kromah had been a passenger could present a safety risk if it were put in motion. I find that the ERU officers acted appropriately in their interaction with Ousmane Kromah in the context of the circumstances of the case. The investigation involved a homicide caused by a handgun which had not been recovered. There was also video evidence of aggressive behaviour on the part of Ousmane Kromah outside a nightclub in Waterloo on the night of the shooting.

[32] Ousmane Kromah was detained by ERU officers at 3:52 p.m. The scene was deemed to be safe approximately five minutes later. At approximately 3:57 p.m., he was advised that he was being detained on the strength of a general warrant and that he had the right to speak to a lawyer. Det. Sgt. Mathias and Det. Kingscote of Major Crimes arrived at the scene at 3:59 p.m. at which time Ousmane Kromah was advised that he was under detention. This interaction was recorded. There is a period of 18 minutes between 4:01 p.m. and 4:19 p.m. during which Det. Kingscote had interaction with Ousmane Kromah which was not recorded. From 4:19 p.m. until the conclusion of the interview at 6:48 p.m., all interactions between Ousmane Kromah and police officers were audio recorded, video recorded or audio and video recorded.

[33] During the interactions which were recorded, I am satisfied that the police dealt with Ousmane Kromah in a courteous and respectful manner. He was told on several occasions that he was under no obligation to speak to the police and that he was free to leave at any time. He was left alone in the lobby of Central Station for several minutes having been told that he was free to use a nearby telephone. The interview by Det. Kingscote was not aggressive in any way. He did not ask leading questions. Although he challenged Ousmane Kromah on a few occasions about not being completely truthful, he did so without being aggressively accusatory. There is no evidence that fabricated evidence was presented during the interview.

[34] It is necessary to address the period between 4:01 p.m. and 4:19 p.m. during which time Det. Kingscote spoke to Ousmane Kromah and their conversation was not recorded. It could have been and it should have been. No satisfactory explanation was given as to why the recording device was turned off by Det. Sgt. Mathias at 4:01 p.m. and turned back on at 4:19 p.m. However, Det. Kingscote testified about his interaction with Ousmane Kromah during this period of time using notes made that same day.

[35] Det. Kingscote testified that between 4:01 and 4:10 p.m., possession of the cell phone found on the console of the car was clarified. Det. Kingscote also testified that while Ousmane Kromah was still being detained he explained the reason for the detention and advised that the police wanted to interview him. He inquired of Ousmane Kromah if he wanted to speak to a lawyer and Ousmane Kromah declined. Once it was determined that the cell phone on the console belonged to the driver, Ousmane Kromah was released from detention and was told he was free to leave. Det. Kingscote went on to testify about his conversation with Ousmane Kromah between 4:10 p.m. and 4:19 p.m. During this period of time Det. Kingscote discussed with Ousmane Kromah that the investigators wanted to interview him about the events of December 15, 2019. Ousmane Kromah was allowed to attempt to contact his mother by cell phone. He was told he could consult with counsel before being interviewed and he was offered a drive home. Ousmane Kromah agreed to attend at the police station for an interview that day.

[36] Because Ousmane Kromah did not testify on the voir dire, there is no evidence to contradict the testimony of Det. Kingscote about what transpired between 4:01 p.m. and 4:19 p.m.

[37] At paragraph 46 of Oickle, the Supreme Court of Canada commented on the exemplary practice of interrogations being video recorded but the Court went on to make it clear that non-recorded interrogations are not inherently suspect.

[38] In R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646, the Ontario Court of Appeal stated:

However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. (para. 65)

[39] I do not read Moore-McFarlane as requiring every police interaction with a suspect or detainee to be recorded in order to satisfy the test of proving beyond a reasonable doubt that the statement was made voluntarily. As the Court stated at para. 53: “The circumstances surrounding the alleged statements of each appellant gave rise to numerous concerns”.

[40] The significant features of the evidence in Moore-McFarlane include:

a) The interactions between the police and the accused and the statements were not recorded;

b) The accused McFarlane testified that he had been assaulted by the arresting officers and had been interviewed while he was naked;

c) The officers denied assaulting McFarlane and testified that the interview took place while he was wearing underwear and socks;

d) McFarlane was interviewed from 11:50 p.m. to 12:22 a.m. which was not recorded. Between 12:24 a.m. and 12:46 a.m. an audio recorded interview took place;

e) McFarlane testified that he was hit and punched by the officers before he gave the statement that was recorded. He said it was his third recorded statement. In the first such statement he was crying and sniffling and in the second one he was complaining “to much”. He testified that the officers told him what to say and it was not true;

f) The accused Bogel denied making any statement;

g) Bogel testified that he was “backhanded” by the officer who arrested him;

h) The booking sergeant testified that Bogel had a cut lip but that he did not make any complaint and did not request to contact counsel;

i) Bogel testified that after being told by the booking sergeant that he had the right to speak to a lawyer, and he requested the opportunity to do so but he was told there were no phones in the booking area;

j) The two arresting officers had a conversation in the interview room for which neither had notes and could not recall what was said;

k) Bogel was interviewed by two officers who were not the arresting officers. One of the interviewers testified that Bogel made an incriminating statement which he recorded in his notebook. The other interviewer made no notes of the interaction with Bogel.

[41] In contrast to the facts in Moore-McFarlane, in the present case there is evidence from the testimony of Det. Kingscote about what was said to and by Ousmane Kromah during the time that the interaction was not recorded. Det. Kingscote has complete notes of the interaction. There is no contradictory evidence. There is no allegation of mistreatment of Ousmane Kromah by the police prior to or during the interview. The non-recorded interaction with Ousmane Kromah was not part of the interrogation. Nothing said during the discussion with Det. Kingscote is sought to be introduced as evidence at the trial. That is not to say that it is not an important aspect of the voluntariness voir dire.

[42] From all of the evidence including the video recording of the interview itself, I have no hesitation in concluding that from at least the time that the ERU officers were satisfied that the scene was safe, Ousmane Kromah was dealt with respectfully and non-aggressively. His outward demeanor on the video recording of the entry into the lobby of Central Station and during the interview proper is calm. His does not appear upset in any way.

[43] In the absence of contradictory evidence it would be necessary to come to a conclusion that something in the nature of a threat or promise was made to Ousmane Kromah between 4:01 p.m. and 4:19 p.m., that an atmosphere of oppression was somehow created which persisted throughout the interview or that some kind of trickery was used that would shock the conscience of the community.

[44] In my view, considering all of the evidence including the testimony of Det. Kingscote, it would be speculation to find that a threat or promise was made or an atmosphere of oppression was created during the period between 4:01 p.m. and 4:19 p.m. Similarly, it would amount to speculation to conclude that some form of extreme trickery occurred during that time.

[45] For these reasons I find that the Crown has proven beyond a reasonable doubt that the statements made by Ousmane Kromah during the interview at Central Station on January 3, 2020 were made voluntarily.

Right to Counsel

[46] S. 10(b) of the Charter of Rights and Freedoms entitles a person who is detained to retain and instruct counsel without delay and to be informed of that right. In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the Supreme Court of Canada held that when a person is detained they are to be advised of their right to retain and instruct counsel immediately, subject only to concerns about officer or public safety (paras. 41, 42).

[47] The detention began at 3:52 p.m. At 3:52 p.m., Ousmane Kromah was advised by Cst. Smith of the ERU that he was being detained and searched for weapons. Approximately five minutes later, after the scene was deemed to be safe, Cst. Smith assisted Ousmane Kromah to his feet and explained that he was being detained pursuant to a general warrant and that he had the right to speak to a lawyer although he did not read from the printed form in his notebook. This partially satisfies the informational component of the 10(b) right.

[48] At 3:59 p.m., Det. Sgt. Mathias read Ousmane Kromah the right to counsel advice which was audio recorded. In response to being asked if he wanted to call a lawyer, Ousmane Kromah stated: “Honestly I’d like to I’d like to know what this is all about again why am I being arrested”. Having listened to the recording, I am satisfied that the statement “Honestly I’d like to …” is not a request to speak to lawyer but rather is part of the same comment about wanting to know what was happening. After making the statement about wanting to know why he was being arrested, Ousmane Kromah indicated that he would exercise his right to silence “for now”.

[49] In R. v. Owens, 127 O.R. (3d) 603, the Ontario Court of Appeal held that the obligation is on the detainee to establish, on a balance of probabilities, that he or she invoked his or her right to counsel before the implementational component of the 10(b) right is triggered (para 22). On the basis of the recording of Ousmane Kromah being informed of his right to counsel by Det. Sgt. Mathias, I am not satisfied that it has been established to the requisite standard that Ousmane Kromah invoked his right to contact counsel.

[50] During the period between 4:01 p.m. and 4:10 p.m., I accept the evidence of Det. Kingscote that he explained to Ousmane Kromah why he was being detained and that he had the right to retain and instruct counsel without delay. According to the evidence of Det. Kingscote, which I accept, Ousmane Kromah confirmed that he did not wish to speak to a lawyer. When Ousmane Kromah was no longer detained he was again told he could speak to a lawyer. Instead, he wanted to speak to his mother and he was provided with an opportunity to do so. When the officers and Ousmane Kromah arrived at Central Station he was left alone for several minutes and was told there was a phone he could use. He did not attempt to make any phone calls. These factors support my conclusion that Ousmane Kromah did not invoke his right to contact counsel.

[51] When the recorded interview began Ousmane Kromah was again asked if he wanted to speak to a lawyer and he declined. Det. Kingscote also told Ousmane Kromah that if he decided during the interview that he wanted to speak to a lawyer, the interview would be paused for that purpose. He said he wanted to hear what the police had to say before he would decide if he should retain a lawyer. In my view, Ousmane Kromah was attempting to use his interaction with the police as an intelligence gathering opportunity and was not interested in seeking legal advice.

[52] In these circumstances, I am satisfied that Ousmane Kromah’s right pursuant to s. 10(b) of the Charter was not breached.

Detention

[53] S. 9 of the Charter provides that everyone has the right not to be arbitrarily detained.

[54] There is no issue that Ousmane Kromah was detained pursuant to the authority of the general warrant. That detention existed from 3:52 p.m. to 4:10 p.m. when he was released unconditionally and told he was free to leave.

[55] The general warrant authorized the police to stop and search Ousmane Kromah for “… any mobile phones that may be on his person or possession and/or in his possession …”. The warrant authorized the detention “… only for so long as is reasonably necessary under the circumstances” and to be immediately released afterward. Additionally, the warrant permitted officers executing the warrant to conduct a pat down search of Ousmane Kromah.

[56] In my opinion, the general warrant was executed in accordance with its terms. The warrant did not limit the search and seizure to a single phone. Although it became apparent early on that the phone seized by Sgt. Allen near Ousmane Kromah’s hand when he was on the ground next to the car belonged to Ousmane Kromah, that did not mean that he could not possibly be in possession of another phone. Indeed, the driver of the vehicle apparently possessed two phones. As the evidence made clear, this was a dynamic and potentially changing situation. The pat down search was authorized by the warrant. There was a concern about possible weapons in the vehicle which had tinted windows. There was a concern about the vehicle being put in motion. There was an issue about possession of the mobile phone on the console of the car. I accept the evidence of Det. Kingscote that it took some time to sort that out.

[57] For these reasons, I have concluded that Ousmane Kromah was detained only as long as was reasonably necessary “in the circumstances”.

Conclusion re January 3, 2020 Statement

[58] I am satisfied that the recorded statement made by Ousmane Kromah to Det. Kingscote has been proven beyond a reasonable doubt to be voluntary. Also, I am not satisfied that Ousmane Kromah has established that his rights as guaranteed by s. 9 and 10(b) of the Charter were violated.

[59] The statement will be admissible to be introduced by the Crown as evidence at the trial.

May 4, 2020 Statement

Evidence

[60] On May 4, 2020, Ousmane Kromah was arrested for second degree murder, aggravated assault, possession of a prohibited weapon and reckless discharge of a firearm. He was arrested at his residence at 18B Montcalm Drive by officers with the ERU at approximately 1:30 p.m.

[61] Cst. Smith of the ERU, who had also dealt with Ousmane Kromah on January 4, arrested Ousmane Kromah when he exited the residence. He handcuffed Ousmane Kromah and conducted a pat down search for weapons. He was present when right to counsel was read by Det. Sgt. Mathias. He turned Ousmane Kromah over to then Cst. Mark Melo and Cst. David Nelson for transport to the police station.

[62] Det. Sgt. Mathias testified that Ousmane Kromah was arrested at 1:27 p.m. At 1:29 p.m., he advised Ousmane Kromah that he had the right to retain and instruct counsel without delay. This interaction was audio recorded. The following is what was said:

Mathias: … I can read it. Ousmane Kromah I am arresting you for second degree murder of Yafiet Rezene unauthorized possession

Kromah: I didn’t I didn’t kill nobody I am not a murderer I was in a scene where I should not be and

Mathias: let me finish

Kromah: that was it

Mathias: let me finish reading your rights, okay

Kromah: okay I am going to talk too go ahead

Mathias: okay

Kromah: talk

Mathias: unauthorized possession of a loaded restricted firearm aggravated assault two counts it’s my duty to inform you have the right to retain and instruct counsel without delay you have the right to telephone any lawyer you wish you also have the right to free advice from a legal aid lawyer if you are charged with an offence you may apply to Ontario legal aid plan for legal assistance 1-800-265-0451 is a toll-free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice do you understand that right

Kromah: no

Mathias: do you need me to explain anything to you in regards to that

Kromah: you need to do a lot more than that that is for sure because I do not even know why you guys are here

Mathias: okay do you wish to call a lawyer now

Kromah: am I being charged

Mathias: you are under arrest for those offences do you wish to call a lawyer

Kromah: well if that’s what I have to do then I will

Mathias: okay that’s fine we can facilitate that for you okay okay so you will be charged with those offences

Kromah: charged

Mathias: yes yes you’re not obliged to say anything but whatever you say may be given in evidence do you need me to repeat those charges for you

Kromah: I don’t even know what you said stop making all this scene out here and get me out of here if that’s what it is

[63] Det. Sgt. Mathias then delivered Ousmane Kromah into the custody of Csts. Melo and Nelson. He also gave the recording device to Cst. Melo which continued to operate until the arrival at Central Station. Prior to commencing the drive to Central Station, Constable Melo read a secondary caution regarding communication with other police officers to Ousmane Kromah. There was no communication with Ousmane Kromah during the drive to Central Station.

[64] Prior to departing 18B Montcalm Drive, Ousmane Kromah’s medication for seizures was obtained from his mother.

[65] Csts. Melo and Nelson arrived with Ousmane Kromah at the sallyport at Central Station at 1:46 p.m. They were required to wait in the sallyport for approximately 20 minutes while another person was being processed in the booking area. The booking area is a short distance from the sallyport. While in the sallyport, Cst. Melo asked Ousmane Kromah if he wanted to speak to a lawyer. This conversation was audio recorded. What follows is an excerpt from that recording:

Melo: did you wanna speak to a lawyer

Kromah: indiscernable

Melo: yeah I know I I just wasn’t in the conversation with the sergeant who gave you yours rights to counsel so which lawyer do you wanna speak to just so I can put the (indiscernable)

Kromah: indiscernable

Melo: I’m sorry

Kromah: indiscernable

Melo: you have no idea which lawyer you wanna use

Kromah: I don’t know any

Melo: okay well there’s multiple multiple ways we can go about this we can give you a book that you can choose a lawyer from it’s completely and utterly your decision who you wanna talk to right there is duty counsel but I don’t wanna lead you that way you can choose any lawyer you want right so if you wanna speak to a lawyer you have to kinda give me an idea of who you want contacted

Kromah: I don’t know any so I’m not gonna be able to do that

Melo: okay so what we’ll do is when we get down there we’re gonna facilitate you to get a repertory so you can look at and and exercise all your options so you can have any lawyer you want right cause that’s important okay fair enough

Kromah: or I could just maybe get a contact from somebody who has a better lawyer cause I’m being charged I can tell this isn’t no this is serious …

Melo: … so again I just wanna make sure that you understand that you can speak to any lawyer you want right so if you come up with a contact number that you want just let me know right so for now you have any idea who you’d like to talk to no okay

Kromah: I don’t know any

Melo: okay but you do wanna speak to a lawyer

Kromah: it’s the only option I have no

Melo: well I can’t advise you right it’s it’s your right to speak to a lawyer and any lawyer you wish right so I wanna make sure that you understand that

Kromah: it’s totally for something I didn’t do that’s the only option I have now

Melo: … so I’ll let the sergeant know that you wanna speak to a lawyer but that you currently don’t’ have one in mind does that sound fair

Kromah: yeah

Melo: okay again we can give you a list a book a whole contact of names that you can you can exercise okay …

[66] Sgt. Gary Russell was in charge of the booking procedure. Cst. Melo advised Sgt. Russell that Ousmane Kromah wanted to speak to a lawyer but did not know any. Sgt. Russell explained there were lists of lawyers available, that the name of a lawyer could be searched on the internet and that duty counsel was available. Ousmane Kromah asked if he could phone his mother or sister to see if one of them could provide the name of a lawyer. Sgt. Russell said that could be arranged. The booking procedure was audio and video recorded. The following is an excerpt from the recording of what was said in the booking area:

Melo: … Sarg this is Ousmane Kromah he’s been arrested for second degree murder unauthorized possession of a restricted firearm and two counts of aggravated assault he was read his rights to counsel and caution by detective Mathias he’s been read his secondary caution by me he indicates that he would like to speak to a lawyer but does not have one and doesn’t know any I’ve explained to him his options all of them and how we can assist him in finding a lawyer so that he can satisfy his rights to counsel

Russell: okay

Russell: okay so we’re gonna take you to a cell for now until we you decide what you wanna do about a lawyer I’m sure its been explained to you several times about duty counsel or a lawyer of choice we’ve got lists of lawyers here we’ve got a phone book if you got a name of somebody we can look it up on the internet and we also have a directory for lawyers as well so if you wanna talk to your lawyer that’s totally up to you if you don’t wanna talk to your lawyer right now that’s fine as well

Kromah: could I get someone like a family member to send me to a lawyer or anything

Russell: is there maybe we could we call your mom she would know a lawyer would that be

Kromah: yeah my mom or my sister maybe one of them knows a lawyer

Russell: okay

Kromah: I just don’t know one

Russell: sure we can facilitate then okay

[67] Ousmane Kromah was then escorted to a private room where he was thoroughly searched. The search involved Ousmane Kromah removing his own clothing to the point of his underwear at which time a wand was used. The search was audio recorded. Upon completion of the search, Ousmane Kromah was placed in a holding cell.

[68] Det. Sgt. Mathias was present for the booking procedure. Det. Sgt. Mathias testified that after completion of the booking procedure, at 2:44 p.m., he placed a call to Ousmane Kromah’s mother, as had been requested. Ousmane Kromah’s mother advised that Ousmane Kromah should call Legal Aid. At 2:50 p.m. Det. Sgt. Mathias reported to Ousmane Kromah, who was in a holding cell, about his conversation with his mother. Ousmane Kromah requested that duty counsel be contacted. At 2:53 p.m., Det. Sgt. Mathias placed a call to duty counsel. Ousmane Kromah was brought from the holding cell and placed in a private room in order to speak to duty counsel. Det. Sgt. Mathias testified that at 3:10 p.m., he spoke to Ousmane Kromah who had been returned to the holding cell. He insured that Ousmane Kromah was satisfied with the advice he had received from counsel and that there were no further requests for persons to contact.

[69] There was an audio/video recording of the holding cell area where Ousmane Kromah was being held. From the time counter on the recording the following occurred:

a) at 31:00 minutes, Det. Sgt. Mathias tells Ousmane Kromah that his mother said to call duty counsel;

b) while speaking to Det. Sgt. Mathias, Ousmane Kromah asks for some food because he was required to take his medication with food;

c) at 32:55 minutes, Ousmane Kromah is given a sandwich;

d) at 35:00 minutes, Ousmane Kromah is provided with foot coverings;

e) at 37:10 minutes, Ousmane Kromah is told his lawyer is on the phone and he is escorted from the holding cell area;

f) at 45:00 minutes, Ousmane Kromah is returned to the holding cell;

g) at 48:06 minutes, an officer gives another sandwich to Ousmane Kromah and in response to a question tells Ousmane Kromah that the water in the cell is safe to drink;

h) at 49:23 minutes, Det. Sgt. Mathias enters the holding cell area and the following exchange takes place:

Mathias: Ousmane I just wanted to double check that you’re satisfied with the advice you got on the phone there is there anybody else that needs to be called for you you are satisfied with the advice you got

Kromah: yea it was good

Mathias: okay that’s all I need to know

Kromah: can I please have some water my throat’s dry

Mathias: does that fountain there work

Kromah: it’s so crusty

Mathias: okay I’ll check with the specials there okay;

i) at 2:32:40 hours, an officer enters the holding cell area and escorts Ousmane Kromah out.

[70] There was a water fountain in the holding cell where Ousmane Kromah was lodged. He did not use the water fountain and no other water was provided before the interview began. Before the interview, Ousmane Kromah was given two sandwiches. After the interview he used the water fountain.

[71] Mohamed Dalmar was also arrested on May 4, 2020 and charged with the murder of Yafiet Rezene. Mohamed Delmar was placed in a holding cell in close proximity to the holding cell where Ousmane Kromah was lodged. Two or more undercover police officers were also placed in cells in the same holding area. The police objective was to stimulate conversation. It became apparent however that Ousmane Kromah and Mohamed Dalmar did not know one another and were not conversing.

[72] In an attempt to stimulate conversation, at 1:34:45 hours on the video recording of the holding cell area, Det. Kingscote enters the corridor with a special constable. He states that Ousmane Kromah and Mohamed Dalmar have been charged with the same murder and should not be in holding cells close to one another. That prompted a heated exchange between them after the officers departed.

[73] The interview of Ousmane Kromah by Cst. Kingscote began at 4:55 p.m. Det. Kingscote began the interview by advising Ousmane Kromah that he was under arrest for first degree murder, unauthorized possession of a loaded restricted firearm and two counts of aggravated assault. When asked if he had spoken to a lawyer, Ousmane Kromah said he had spoken by phone with someone who was not a lawyer. He then said the person on the phone did not say he was a lawyer but he “went over some stuff”. Ousmane Kromah told Det. Kingscote that he did not know any lawyers when he was asked if there was another lawyer he wanted to speak to. Ousmane Kromah said he was hoping to contact his parents to see if they could provide the name of a lawyer. Det. Kingscote offered the opportunity to speak to a lawyer on two occasions but Ousmane Kromah responded by saying he did not know why he was under arrest for something he did not do.

[74] After discussing speaking to a lawyer, Ousmane Kromah expressed upset about Det. Kingscote coming into the holding cell area and accusing him of being a murderer in the presence of Mohamed Dalmar.

[75] Det. Greg MacDonald was the file coordinator for the investigation. At about 5:30 p.m., he was advised by another officer that a lawyer by the name of Witmer had called and wanted to speak to Ousmane Kromah. At 5:33 p.m. he spoke to Mr. Witmer for less than two minutes who told him he was calling to speak to Ousmane Kromah and he was calling on behalf of Ousmane Kromah’s sister. Det. MacDonald told Mr. Witmer that Ousmane Kromah had already spoken to a lawyer but he did not tell him that the lawyer was duty counsel. Mr. Witmer asked that Ousmane Kromah be advised he had called.

[76] At 5:55 p.m., when Det. Kingscote came out of the interview room, Det. MacDonald informed Det. Kingscote about the conversation with Mr. Witmer. When Det. Kingscote returned to the interview room he advised that Darwin Witmer, a lawyer who had been contacted by Ousmane Kromah’s sister had called in to the police station. Det. Kingscote did not tell Ousmane Kromah that Mr. Witmer had asked to speak to him nor did he ask Ousmane Kromah if he wanted to speak to Mr. Witmer. Ousmane Kromah did not ask to be allowed to contact Mr. Witmer.

[77] At the end of the interview, the following exchange took place:

Kingscote: anything else you wanna tell me

Kromah: you said a lawyer called so when do I get to meet him

Kingscote: well you already spoke to a lawyer prior to that so he’s aware that you are here is that somebody you want I think I I (indiscernible) but I think your sister called somebody and they called here

Kromah: yeah

Kingscote: okay so do you want me to call your sister and have her call that lawyer call in tomorrow or do something or what is your

Kromah: yeah

Kingscote: okay so I will see if I can get a message to your sister I can only do that with your permission so

Kromah: to get the lawyer in here yeah

Kingscote: to talk to you anyway

Kromah: yeah I mean what do you mean to talk to him

Kingscote: I I didn’t because you’ve already talked to duty counsel before we talked so

Kromah: yeah

Kingscote: another lawyer called after that so you have had your chance to talk to a lawyer but do you want me to tell your sister to have him call you or do you want me to call him and see if he will talk to you tomorrow or

Kromah: yeah

Kingscote: cause it has to be something that you want and I have to have the permission to do it so

Kromah: yeah

Kingscote: okay

Kromah: yeah

Kingscote: alright I will see what I can figure out with the guy that actually took that message and we’ll go from there okay

Kromah: yeah

[78] The interview concluded at 7:27 p.m.

[79] With the exception of brief periods of time when Ousmane Kromah was being escorted about Central Station, the entire time he was in police custody, from the time of the arrest until the time the interview began, was recorded by audio or audio/visual recording.

[80] With the exception of Det. Kingscote, all officers who had contact with Ousmane Kromah testified that there were no threats or promises or inducements made or held out. Det. Kingscote testified that there were no interactions between he and Ousmane Kromah which were not recorded. As indicated previously, Ousmane Kromah did not testify on the voir dire.

Voluntariness

[81] As stated earlier in this Endorsement, the Crown must prove beyond a reasonable doubt that the statement was made voluntarily (para. 28).

[82] Ousmane Kromah submits that there is a reasonable doubt about voluntariness based on his lack of an operating mind. This lack of an operating mind was caused by the actions of the undercover police officers who were placed in the holding cell area. Secondly, the police failed to ensure that he understood the nature and consequences of his actions. Thirdly, Ousmane Kromah did not have any water from the time of his arrest until 5:45 during the course of the interview.

[83] With the exception of brief periods of time when Ousmane Kromah was escorted from the sallyport to the booking area, from the holding area to a private room and back for the purpose of consulting with duty counsel and from the holding area to the interview room, all interactions with the police were recorded either by audio or audio/visual recording. From the audio and video evidence, I conclude, without reservation, that Ousmane Kromah was treated fairly and respectfully by all police officers who had contact with him. There were no threats, promises or inducements made or held out by anyone in authority.

[84] Ousmane Kromah complains about being deprived of water for about four hours. Even if I were to find that the police had intentionally deprived him of water for that period of time, I would not find that such deprivation was sufficient to create an atmosphere of oppression such could possibly overbear Ousmane Kromah’s free will. But I do not find that Ousmane Kromah was deprived of water while he was in police custody. There was a fountain in the holding cell which he chose not to use because he found the water “crusty”. He was provided with sandwiches on two occasions. I conclude that there was no atmosphere of oppression.

[85] In my view, the attempt to stimulate conversation in the holding cell area between Mohamed Dalmar and Ousmane Kromah which resulted in a heated exchange between them did not create an atmosphere of oppression. There is no evidence to suggest that Ousmane Kromah was motivated to speak to Det. Kingscote as a result of any discussions that took place in the holding area between he and Mohamed Dalmar.

[86] Having considered all of the circumstances surrounding the making of the statement on May 4, 2020, I am satisfied that the Crown has proven beyond a reasonable doubt that the statement was voluntary.

Right to Counsel

[87] The onus in on Ousmane Kromah to prove on a balance of probabilities that his right guaranteed by s. 10(b) of the Charter was violated.

[88] In R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, the Supreme Court set out the duties imposed on the police by s. 10(b) of the Charter as follows:

a) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

b) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right; and

c) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (para. 17).

[89] When a detainee asks to speak to counsel, the police must afford a reasonable opportunity for the person to consult with the lawyer of their choice. Detainees must be reasonably diligent in exercising their right to counsel (R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 at paras. 33 and 35).

[90] In the present case, Ousmane Kromah was advised by Det. Sgt. Mathias, immediately following his arrest, that he had the right to retain and instruct counsel without delay. He was told that he could call any lawyer he wished. He was also advised of the availability of duty counsel and legal aid. When asked if he understood, Ousmane Kromah responded that he did not. However, when Det. Sgt. Mathias asked if a further explanation was required, Ousmane Kromah said he did not know why he was being arrested. He then told Det. Sgt. Mathias that because he was being charged he would call a lawyer. Det. Sgt. Mathias said that request would be facilitated.

[91] In the sallyport, while awaiting access to the booking area, Cst. Melo asked Ousmane Kromah if he wanted to speak to a lawyer. Ousmane Kromah responded that he did not know any lawyers. Cst. Melo then explained that a book could be provided from which a lawyer could be selected. He also advised of the availability of duty counsel but he specifically said he did not want to “lead you that way”. He also reiterated that Ousmane Kromah could choose a lawyer of his own choice.

[92] During the booking procedure, Cst. Melo advised Sgt. Russell that Ousmane Kromah wanted to speak to a lawyer but did not have a lawyer and did not know any. Sgt. Russell advised that a list of lawyers, a phonebook, and access to the Internet was available if the name of a specific lawyer was provided. Ousmane Kromah’s request was that he be allowed to contact his mother or his sister to obtain the name of a lawyer. He did not ask to be given a list of lawyers, a phonebook or access to the Internet.

[93] Det. Sgt. Mathias then contacted Ousmane Kromah’s mother who advised that he call legal aid. Det. Sgt. Mathias spoke to Ousmane Kromah and advised what his mother had said. Ousmane Kromah asked that legal aid be contacted. Det. Sgt. Mathias contacted duty counsel and Ousmane Kromah spoke with duty counsel. Det. Sgt. Mathias then returned to the holding cell and asked Ousmane Kromah if he was satisfied with the advice he had received from duty counsel. Ousmane Kromah responded “yeah it was good”. Det. Sgt. Mathias also asked if there was anybody else who needed to be called.

[94] In R. v. Persaud, [2020] O.J. No. 2619, a decision of Akhtar J. sitting as a summary conviction appeal judge, it was held that there is no obligation on the police to provide search materials to a person without a lawyer in order to allow that person to find a lawyer, absent a request from the arrestee.

[95] The facts in the present case distinguish it from the case of R. v. Jhite, [2021] O.J. No. 2178, which is relied upon by Ousmane Kromah. The case is a summary conviction appeal decision by Stribopoulos J. In Jhite, the appellant contacted his brother who provided the name and telephone number of a lawyer. On his own initiative, the arresting officer placed a telephone call to duty counsel. After a voicemail message was left for the lawyer suggested by the appellant’s brother, duty counsel called and spoke to the appellant. The appellant testified that he initially declined to call duty counsel but agreed to speak to duty counsel only after another officer told him it would do no harm and he should do so. That officer did not testify. The appellant also testified that he was not satisfied with the advice received from duty counsel. In the presence of the breathalyzer technician, the appellant asked if his lawyer had called and if that lawyer could be called again.

[96] In this case, the police advised Ousmane Kromah of his right to retain and instruct counsel without delay and about the availability of duty counsel and legal aid. He was told he could call any lawyer he wanted. He was told on more than one occasion that he would be provided with resources to assist him in finding a lawyer. At no time did he provide the name of a lawyer he wanted to contact nor did he request a phonebook or directory of lawyers to help him find a lawyer. The only request made was to contact his mother or his sister. Det. Sgt. Mathias contacted his mother who suggested that her son call legal aid. No request was made by Ousmane Kromah to contact his sister after being advised that a telephone call had been placed to his mother. Ousmane Kromah told Det. Sgt. Mathias that he was satisfied with the advice received from duty counsel after being asked if there was anyone else that needed to be called.

[97] At the beginning of the interview, Ousmane Kromah told Det. Kingscote that the person he spoke to on the phone was not a lawyer. He then said the person did not say he was a lawyer but he “went over some stuff”. I am satisfied that the person who called and spoke to Ousmane Kromah was a duly qualified duty counsel lawyer. Although Det. Sgt. Mathias was not asked for the telephone number that he dialed to get in touch with duty counsel, I am satisfied that he used the correct number. Ousmane Kromah also told Det. Kingscote that he was hoping to contact his parents to provide the name of a lawyer. Det. Kingscote offered the opportunity to speak to a lawyer and the response was that he did not know why he was under arrest for something he did not do.

[98] In all the circumstances of this case, I am satisfied that up to the point of commencement of the interview proper, the police fulfilled their implementational component with respect to the right to counsel.

[99] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Supreme Court held that absent a change in an accused person’s jeopardy, once counsel has been consulted and there is no reason to doubt the adequacy of the advice provided, there is no obligation on the police to facilitate a second consultation with a lawyer (para. 53).

[100] In this case, Ousmane Kromah had consulted with legal counsel and had indicated that he was satisfied with the advice received by the time the interview began. There was no change in jeopardy throughout the course of the interview. When advised that a lawyer who had been contacted by his sister had called, Ousmane Kromah did not request that he be permitted a further opportunity to speak to that lawyer. In my view, there was no obligation on the police to interrupt the interview to allow Ousmane Kromah an opportunity to speak to Darwin Witmer.

[101] I am satisfied that the police adequately fulfilled their obligation pursuant to s. 10(b) of the Charter. Ousmane Kromah has not discharged his burden to establish that his Charter right to retain and instruct counsel without delay following his arrest had been breached.

Conclusion re May 4, 2020 Statement

[102] I am satisfied that the recorded statement made by Ousmane Kromah to Det. Kingscote has been proven beyond a reasonable doubt to be voluntary. Also, I am not satisfied that Ousmane Kromah has established that his right as guaranteed by 10(b) of the Charter was violated.

[103] The statement will be admissible by the Crown as evidence at the trial.

G.E. Taylor, J.

Date: August 22, 2022