COURT FILE NO.: 20-17362
DATE: September 13, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
MIGUEL NGABIRANO
Mike Boyce
Paul Lewandowski for the Defendant
HEARD: September 8, 2022
RULING on admissibility of police INTERVIEW
Justice Sally Gomery:
[1] Miguel Ngabirano is charged with offences arising from a mugging and carjacking on February 18, 2020. In anticipation of his trial, the Crown seeks a ruling on the admissibility of his videotaped statement to a police officer on February 19, 2020, the day after his arrest.
Background
[2] For the purposes of the voir dire, the parties agreed on the sequence of events leading up to the interview. They also agreed that nothing that occurred between Mr. Ngabarino’s arrest and the beginning of the interview is relevant to the voluntariness issue. I am accordingly providing a summary of these events simply for context.
[3] On the evening of February 18, 2020, the Ottawa police chased and stopped the vehicle that Mr. Ngabarino was driving after they observed that it had the licence plate of an Uber reported stolen earlier that evening. Based on information obtained prior to Mr. Ngabirano’s interview, the police believed that the carjacking was committed by a trio of youths after they robbed a woman in the parking lot of her residence. Witnesses to the mugging and carjacking reported that the youths had a gun.
[4] When Mr. Ngabarino was apprehended at 21h44, he was arrested for robbery and theft of a motor vehicle. The police found two cell phones in his jacket pocket, one of which belonged to the Uber driver. The police did not find a gun or fake gun in the vehicle, or on the person of another young male in the car, or on the person of a third young man found hiding nearby.
[5] After searching him, an officer advised Mr. Ngabarino of his right to counsel and cautioned him. He indicated that he understood. He was provided with a secondary caution by a second officer a few minutes later, then transported to the police station. Mr. Ngabarino spoke to a lawyer, Sarah Ahsan, by phone after arriving at the station. He was placed in a cell overnight at 22h43.
The police interview
[6] Mr. Ngabarino’s videotaped interview with Detective Sean O’Neill, the lead investigator on the case, took place around noon the next day. Deducting a 30-minute break during which Mr. Ngabarino had a further brief phone call with his lawyer, and another brief break near the end, the interview lasted an hour.
[7] During the interview, Detective O’Neill reviewed the information about the mugging and carjacking that the police had gathered to date, and asked Mr. Ngabarino questions about what had occurred. The detective eventually focused on two particular areas: to what extent the crimes had been pre-planned, and whether or not the gun reported by witnesses was real. On the planning issue, Mr. Ngabarino said that he barely knew the other two youths, that he was twenty feet distant when they interacted with the mugging victim and another woman in the parking lot, and that the two other youths were likewise alone in the Uber vehicle with its driver for a period of two or three minutes. On the second issue, Mr. Ngabarino initially denied that he held a gun or saw a gun. Towards the end of the interview, however, he told Detective O’Neill that the gun wasn’t real but a BB gun, which he assumed had been tossed from the Uber “to hide what really happened”. He continued to deny that he ever touched the BB gun or that he had any idea where it came from. The interview ended after Mr. Ngabarino twice told Detective O’Neill that he would prefer to be in his cell and that he did not feel like talking, and the detective told him the likely terms of his release if he was not detained pending trial.
[8] The Crown contends that all of Mr. Ngabarino’s statements during the interview were made voluntarily. Defence counsel contends that there is reasonable doubt as to whether Mr. Ngabirano’s statements about the gun in the last twenty minutes of the interview were made voluntarily, since they followed a quid pro quo offer by Detective O’Neill. As a result, the defence argues that this part of the interview, from page 23 of the transcript onwards, is inadmissible.
Analysis
Legal principles
[9] The modern confessions rule balances the protection of the rights of an accused with society’s need to investigate and solve crimes: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 33. The rule is designed to discourage unacceptable police practices, not only because such practices are inconsistent with fundamental guarantees of a detainee at common law and in the Canadian Charter of Rights and Freedoms, but because they may result in a false confession.
[10] In assessing whether there is reasonable doubt that an accused’s statement was voluntary, a court must consider the entire circumstances in which the statement was made. If promises or offers were made to an accused — the argument advanced by the defence in this case — the court must consider whether, in the context of the interview as a whole, these inducements raise a reasonable doubt about whether the accused’s response was the product of their free will. As summarized by Deschamps J. in R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 15:
[W]hile a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement.
[11] Relevant circumstances would include, but are not limited to, any oppressive or coercive tactics during a police interview that might have the effect of overbearing the accused’s will and inducing them to confess. Police are not required to stop asking any questions when an accused asserts their right to silence, even repeatedly: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 44-47. A judge assessing voluntariness must consider, however, whether police persistence raises doubt that an accused’s statement was “the product of a free will to speak to the authorities”; Singh, at para. 47. In R. v. Mohamad, 2014 ONSC 1348, for example, McIsaac J. concluded that the Crown had not established the voluntariness of an accused’s admissions during the second half of a six and a half hour night-time interview, during which the interviewing officer threatened to keep the accused until he confessed, despite the accused’s visible fatigue.
Application to this case
[12] As conceded by the defence, there is no doubt about the voluntariness of Mr. Ngabarino’s statements during the first two thirds of the interview.
[13] Mr. Ngabarino was advised at the outset that the interview was being videotaped and given a chance to consult his lawyer for a second time after Detective O’Neill told him about additional charges that would be laid. When the detective first mentioned that he was facing weapons charges, Mr. Ngabarino volunteered: “I never had a gun”. Detective O’Neill told him that he did not want to talk about this until Mr. Ngabarino had been cautioned again and had decided if he wanted to talk to counsel again.
[14] The interview resumed after Mr. Ngabarino had spoken with Ms. Ahsan by phone for a second time. Mr. Ngabarino was cautioned again. Detective O’Neill then related, in some detail, the witness accounts and other evidence that the police had obtained, at that point, about the offences allegedly committed by Mr. Ngabarino and the other two youths.
[15] On the videotape, Mr. Ngabarino is seen to be listening to Detective O’Neill and engaging with him during the review of the evidence. He asked for clarification about what the police would do with his cellphone and told Detective O’Neill that the arresting officers had assaulted him. He sought confirmation that the police had not found a gun. He offered an account of the evening’s events that, if accepted, would essentially make him an innocent bystander. He downplayed his association with the other two youths.
[16] Mr. Ngabarino invoked his right to silence in response to certain specific questions but continued to speak to Detective O’Neill after doing so. For example, early in the interview, Detective O’Neill asked if he had been treated well or had any complaints. Mr. Ngabarino replied that he had no comment. Later on, when Detective O’Neill asked him whose idea it was to commit the offences, Mr. Ngabarino said he would prefer to answer that question with his lawyer. He responded the same way when Detective O’Neill asked him the same question some time later. He nonetheless continued to offer answers to questions on other topics.
[17] This brings us to the point where, according to the defence, Detective O’Neill offered a quid pro quo to induce Mr. Ngabarino to provide information about the gun. The tone of the interview had shifted. Detective O’Neill had suggested that Mr. Ngabarino was realizing the consequences of his actions and asked him if he felt any remorse. Mr. Ngabarino said that, if the victims of the mugging and carjacking were there, he would apologize. Detective O’Neill then urged him to consider how traumatizing it would be to be threatened with a gun. Mr. Ngabarino is seen on the videotape wiping his eyes with his clothing. In his voir dire evidence, Detective O’Neill confirmed that he was crying.
[18] Mr. Ngabarino then said “I think I just go back to my cell” or “I just want to go back to my cell”.[^1] This prompted the following exchange:
Det. O’Neill: But if there’s — if you don’t want to say anything else — like if you can at least tell me that it wasn’t real. That’s all I want to know. If you can at least tell me that — that would put my mind at ease somewhat. I just don’t — like I said I don’t want somebody coming across whatever it was that you guys used and hurting themselves with it. I just — I don’t want that to happen.
Mr. Ngabarino: (inaudible)
Det. O’Neill: What’s that?
Mr. Ngabarino: It wasn’t real.
[19] Defence counsel contends that Detective O’Neill offered an inducement, that is, that Mr. Ngabarino would be returned to his cell if he provided information about the gun. He argues that a quid pro quo should be inferred from Detective O’Neill’s repeated use of the conditional “if”, and that Mr. Ngabarino would have reasonably understood that the questioning would cease if he confirmed whether or not the gun was real. As a result, Mr. Ngabarino may have simply told Detective O’Neill what he wanted to hear.
[20] Based on the evidence at the voir dire, Detective O’Neill is a skilled interviewer who was aware he was dealing with a young and unsophisticated accused. He used these skills and this knowledge to play on Mr. Ngabarino’s remorse and distress about his situation to obtain information and inculpatory statements from him. I do not, however, find that he offered a clear inducement to Mr. Ngabarino to confess or that, if he did, this give rise to reasonable doubt that Mr. Ngabarino’s statements were voluntary.
[21] I do not agree that Detective O’Neill’s disjunctive phrasing and use of the word “if” would be readily understood by Mr. Ngabarino as an offer to return him to his cell if he answered his question about the gun. Detective O’Neill was clearly trying to persuade Mr. Ngabarino to answer this question before he ended the interview. He admitted as much during his testimony. The proffered inducement was not, however, for an end to the interview but to ease Detective O’Neill’s mind, an inducement that the detective had offered twice earlier in the interview (see pages 17 and 18 of the transcript).
[22] Mr. Ngabarino’s conduct after this exchange is furthermore inconsistent with an understanding that he would get to leave the interview once he answered the question. If that was Mr. Ngabarino’s understanding, I would have expected him to demand a return to his cell as soon as he confirmed that the gun was not real. Mr. Ngabarino instead continued to answer Detective O’Neill’s follow-up questions about whether it was a BB gun or an air pistol, whether the BB gun belonged to Mr. Ngabarino, whether he touched it, which one of the other two youths carried it, how they obtained it, and where and how it had been discarded. Mr. Ngabarino indicated that he did not feel like talking anymore and asked to return to his cell again only after Detective O’Neill once again began talking about how someone could have been hurt during the commission of the offences or during the arrest.
[23] Even if Mr. Ngabarino understood that Detective O’Neill was offering to end the interview if he told him if the gun was real or not, I do not find that this was a serious inducement. The interview had, at this point, lasted only forty minutes. Detective O’Neill had twice advised Mr. Ngabarino that they would leave for the courthouse shortly for a show cause hearing. Mr. Ngabarino had not previously requested an end to the interview. He had volunteered information and answered most questions with little hesitation. He put his version of events on the record. He had invoked his right to silence selectively.
[24] Detective O’Neill’s tone and words throughout the interview were not coercive, bullying, or threatening. There was nothing oppressive about his conduct or the circumstances of the interview in general. This is a far cry from the situation in Mohamad. Mr. Ngabarino did complain about the temperature in the room and asked twice for a sweater. Based on his words and his conduct during the interview, however, I am not persuaded that there is a serious chance that he was motivated to confess because he was physically uncomfortable. This argument was not advanced by defence counsel at the voir dire.
[25] Defence counsel argues that Detective O’Neill took advantage of Mr. Ngabarino’s lack of experience in the criminal justice system, notably by not correcting his misapprehension that he had the right to ask that his lawyer be present for part of the interview. This has nothing to do, however, with the putative inducement.
[26] Defence counsel says that I must consider the cumulative effect of Mr. Ngabarino’s questions about when he would see his lawyer, whether he could make a statement with her, and his assertion of his right to silence in response to some questions. In his view, these requests should be read as a progressive series of attempts to end the interview. I do not see it this way. Mr. Ngabarino used the interview to obtain information from Detective O’Neill about a variety of things. He was aware of his right to silence and his right to counsel. In any event, the police have the latitude to continue questioning after a detainee asks to end an interview or declines to answer. I do not find that Detective O’Neill crossed the line in his attempt to elicit information from Mr. Ngabarino.
[27] In all the circumstances, I cannot find that Detective O’Neill’s plea for information about the gun overcame Mr. Ngabarino’s free will. Mr. Ngabarino’s statements about the gun appear instead to have been prompted by genuine remorse and a desire to reassure Detective O’Neill.
[28] I conclude that there is no reasonable doubt that Mr. Ngabarino’s statements during the entire interview were voluntary. As a result, the entire interview is admissible.
Justice Sally Gomery
Released: September 13, 2022
COURT FILE NO.: 20-17362
DATE: September 13, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS Majesty the KINg
– and –
MIGUEL NGABIRANO
RULING ON ADMISSIBILITY OF POLICE INTERVIEW
Justice Sally Gomery
Released: September 13, 2022
[^1]: Based on my review of the audio recording, I believe he said “I think I just go back to my cell”. On the transcript, Mr. Ngabarino is recorded as saying “I just want to go back to my cell”. Nothing turns on this difference in wording, in my view.