Court File and Parties

Court File No.: CR-22-511-00 Date: 2023 09 29 Ontario Superior Court of Justice

Between: His Majesty The King, Applicant And: Malik Essue, Respondent

Counsel: David D’Iorio and Tina Kim, for the Applicant Crown Brian Ross and S. Chuckal, for the Respondent, Malik Essue

Heard: June 19-20, 2023

Voluntariness Ruling

D.E. HARRIS J.

[1] Malik Essue, the respondent, is charged with first degree murder together with Fiseha Girmay-Habtegabir and Abdullah Kaddoura.

[2] On a sunny morning in August, 2020, two unformed police officers knocked on the front door of the respondent Essue’s residence in London, Ontario. His mother answered. The police asked to see him. She summoned her son to the door.

[3] The police, after confirming that Mr. Essue had reported his car missing, informed him that it had been used in a recent homicide. They wanted to ask him some questions. A lengthy interview ensued.

[4] Mr. Essue challenges the voluntariness of his statements to the police. The main issue resolves around the failure of the police to convey the primary caution to him. The primary caution given by the police to a suspect is for the purpose of rectifying at least to some extent the power imbalance between the police and a suspect. Most people are intimidated by the police who occupy a position of respect and authority in our society. The suspect is in a distinctly inferior position. By informing a suspect, in what has become known as the “primary caution”, that they are not obligated to speak but if they do, what they say can be used against them in court, the police provide information to permit a reasoned and informed decision whether to exercise the right to remain silent or speak to the police.

[5] The law has long seen the primary caution as one of the means, along with the right to counsel, to equalize a suspect’s inherent disadvantage when confronted by the police. The right to silence and the right not to suffer self-incrimination are constitionalized principles standing at the centre of the procedural protections constructed for the purpose of protecting suspects: R. v. White, [1999] 2 S.C.R. 417 at paras. 41-44.

[6] There are two elements to the primary caution: 1. You are not required to speak; 2. If you do choose to speak, what you say can be used against you in court. In the case of the respondent, there was only passing allusion to the first part of the caution. The second part was not mentioned at all. The ultimate question is whether these flaws in providing the caution prevent the Crown from satisfying their onus to prove voluntariness beyond a reasonable doubt. The answer requires an examination and application of the recent Supreme Court decisions in R. v. Tessier, 2022 SCC 35 and in R. v. Beaver 2022 SCC 54.

WHAT DOES TESSIER REQUIRE?

[7] The importance of the primary caution was stressed as early as R. v. Boudreau, [1949] S.C.R. 262, 75 years ago. In Boudreau, it was suggested that not giving the caution was an important factor on voluntariness and may lead to a judge exercising his or her discretion to hold a statement inadmissible. The decision in Tessier goes further. It delves into the rationale for the primary caution and then imposes a structure to analyze the impact of the police failing to give a caution.

[8] Tessier refers to the absence of the caution as a “potential sign of involuntariness” because it demonstrates that the suspect has been unfairly denied their right to choose not to speak to the police. The Tessier court designed a practical rule to guide trial judges in examining cases in which the caution is not given. If an individual meets the legal definition of a suspect, the absence of a caution constitutes prima facie evidence that they were denied their right to choose not to speak to the police. The status of a person as a suspect and the absence of a caution will cast an evidentiary onus to prove voluntariness back on to the Crown (see paras. 8-9). The statement will be involuntary and inadmissible if the Crown fails to satisfy that onus.

[9] The rationale for the Court drawing the line at a suspect was put this way (para. 75)

Even if one acknowledges that many encounters with the police can be daunting, fairness considerations are unlikely to arise in the same way where the person is not suspected of being involved in the crime under investigation. Fairness concerns are manifest once an individual is targeted by the state. There is nothing inherently unfair, for instance, about police questioning a person standing on the street corner without providing a caution while gathering information regarding the potential witnessing of a crime.

[10] The Crown will discharge their onus if they are able to show, beyond a reasonable doubt, that despite the absence of a caution, the statement was voluntary. Proof that the accused knew that he or she did not have to speak and knew that if he did, the statement could be used in court, will be virtually decisive evidence that the absence of a caution did not undermine voluntariness. If this cannot be shown, the Crown can still meet their burden in the absence of the caution if “there were no signs of threats or inducements, oppression, lack of an operating mind or police trickery, that will be sufficient to … remove the stain brought by the failure to give a caution.” (Tessier, para. 89)

1. WAS THE RESPONDENT A SUSPECT?

[11] The first question to be decided is whether the respondent was a suspect.

[12] Sangita Sharma, a 56-year-old pharmacist, was shot and killed in what appeared to be a targeted shooting just after she had driven into her garage at home in Brampton about 6:01 p.m. on August 13, 2020. The interview of the respondent took place one week later, on August 20, 2020.

[13] A person can be termed a “suspect” when, from an objective point of view, there are reasonable grounds to suspect he is implicated in the crime: R. v. Singh, 2007 SCC 48 at para. 32; Tessier, paras. 59-62, 81-82; R v Smyth, [2006] O.J, No 5527 (S.C.J.) at paras 78-84. In determining the question, there are two areas to be explored: 1. Evidence which has been gathered against a person by the police; 2. Indications based on police actions that he was viewed as a suspect.

[14] In determining whether he constituted a suspect, this is the evidence the police had marshalled against the respondent prior to interviewing him: About six hours before the murder, in a recorded call, the respondent had reported his car, a Ford Fusion, stolen to the police. He had said that it was stolen in the early morning hours that day, August 13, 2020. The car had been locked when it was stolen. The respondent advised that he had both sets of keys. When the police recovered the car several days before the impugned August 20 interview of the respondent, the ignition had not been tampered with.

[15] The police knew with certainty that the car had brought the killer to the scene and spirited him away after the murder. Video footage showed that a black Ford Fusion had entered the parking lot of a school across from Ms. Sharma’s home on August 13, 2020. When she drove into her garage just after 6 p.m., a male shooter in a black hoodie left the Fusion and headed to Ms. Sharma’s garage. Two shots are heard, and the shooter then returned to the Fusion which had by this time pulled into the roadway. The Fusion drove away once the shooter climbed back inside.

[16] Three days later, on August 16, 2020, the police located an abandoned Ford Fusion at the Paul Coffey Arena. The vehicle identification number showed that the car was registered to the respondent. The license plate on the vehicle was stolen and was not the plate the respondent had put on the car. Unique markings on the Fusion matched it to the video of the car used in the murder on August 13, 2020. Of major importance, review of video from the Paul Coffey Arena showed that the Fusion had been there on August 12, 2020 at about 3:30 p.m. and had remained there overnight. This was the night before the murder. Therefore, when the respondent reported to the police that the vehicle had been stolen from his residence in the early morning hours of August 13, 2020, this could not have been true.

[17] In terms of the indications that the police viewed the respondent as a suspect, at the time of the police interview, the evidence against the respondent reviewed above was the only lead in the case. After finding the car and linking it to him, the police did a background check, discovering that the respondent had been convicted of violent offences including robbery and assault and was in the DNA databank. They obtained a warrant and did a full forensic examination of the car looking for DNA and fingerprints.

[18] Peel Regional Police Homicide Detective Mike Mavity and Constable Zachary Breault travelled to London, Ontario to speak to the respondent for the August 20 interview. They had pre-planned questions and intended to evaluate the respondent’s truthfulness from his answers. Detective Mavity, prior to the interview, decided to use the Phased Interview Model for Suspects (PIMS) method, a specific interview method to be utilized with suspects. Its main focus is for accused persons in custody. As was planned, the interview was non-accusatory but the questions elicited highly incriminating, provable lies.

[19] A decision was made to audio-record the meeting. Both interviewing officers testified that they intended to caution the respondent, but they forgot to do so.

[20] During the interview on the threshold of the respondent’s residence, a mobile surveillance team lay in wait outside the respondent’s residence to track his movements once the interview had been concluded. Immediately after the interview was completed, the officers went to investigate information given by the respondent in reference to a local business, K&A Automotive.

[21] The police testified that the respondent was a “person of interest” at the time he was interviewed. A person of interest is on a lower echelon than is a suspect.

[22] I would reject this police characterization. In my opinion, the respondent was clearly a suspect at the time of his interview. Stolen cars are used to commit crimes quite frequently. Nonetheless, the respondent’s car was used to drop off the shooter and then take him away from the scene once he had carried out the killing. While that was of significant value, of critical importance was the more or less definitive proof that the respondent was lying about the time his car was stolen. The video evidence from the Paul Coffey Arena showed the vehicle there many hours before the respondent said it had been stolen. There was evidence as well that it was unlikely the car had been stolen because the ignition had not been tampered with and the respondent had said in his earlier oral report that he had both sets of keys to his car.

[23] Taken together, the police possessed highly incriminating evidence against the respondent. The police investigation of the respondent before the interview at his doorstep at home solidifies that he was a suspect at the time. The investigation was much more elaborate than it would be for a person of interest. The decision to record the interview itself demonstrates that the police saw it as a potentially important step to cracking the case. In reference to the police intention to caution the respondent, Mr. D’Iorio warns that this does not itself show that the respondent was suspect. The question of whether he was a suspect is a judicial one and not up to the police. Although this is obviously true, as made explicit in Tessier at para. 82, the actions of the police constitute an important indication of an individual’s status. The intention to caution the respondent demonstrates that they viewed him as being in significant jeopardy.

[24] The conclusion is inescapable that the respondent was a suspect in law at the time of the interview. The respondent was not informed of the second part of the primary caution that any statement made could be used in court. The right to silence itself, the first part of the caution, was mentioned but only in a cursory way. The first thing the police said to the respondent right after introducing themselves was,

DC Mavity: Um, we’re just here, uh, you reported your car stolen. So we work in, uh, Mississauga and we’re with the Homicide Unit. And, uh-, yeah, have a seat, man. Um, and, uh, we’re just hoping to ask you a couple questions about it. We think, uh, your car was used in one of our recent murders. So we just wanted to ask you about that, um, I know you reported it stolen, you're not a suspect, I just have to te-, you don’t have to talk to me at any point. I've just got some quick questions, I'll be out of your hair. I know-, I think you reported it stolen to London? So I just wanted to ask…(Emphasis added)

[25] In context, the fleeting reference that “you don’t have to talk to me at any point”, was inadequate to properly convey the right to silence. The respondent was without warning confronted with two police officers at the front door to his home. Mouthing that he did not have to talk in the midst of a rapid-fire recitation of other information including that his reportedly stolen car was used in a murder was unlikely to be absorbed by the respondent. He was never asked whether he understood. In the circumstances, it appears that the police officers were only paying lip service to the right to silence.

[26] Having found that the respondent was a suspect at the time of the interview and that the right to silence was not adequately conveyed and that there was no mention that any statement given could be used in court against him, following Tessier and Beaver, there is a prima facie case that there was an unfair denial of the respondent’s right to choose to speak to the police: Tessier at paras. 83-85. The evidentiary onus shifts to the Crown to demonstrate that it was voluntary beyond a reasonable doubt.

2. DID THE CIRCUMSTANCES BRING HOME TO THE RESPONDENT THAT ANYTHING HE SAID COULD BE USED AGAINST HIM?

[27] In Tessier itself, the majority of the Court held that despite the absence of the primary caution, Tessier knew that the statement could be used against him in court and understood that he had a choice between speaking and remaining silent. The pertinent circumstances were that the statement was given in the police station and Mr. Tessier was told it was being recorded. He made statements during the interview to ensure that there would be a record of his version of events. Furthermore, the interviewing police officer used pointed questions and confronted Tessier directly. There was no secret that he was viewed as the possible perpetrator of the murder and he would necessarily have known his potential jeopardy: see Tessier, at paras. 90-102.

[28] A suspect’s subjective awareness that his statement can be used against him will generally substitute for the lack of a caution: Tessier at para. 88. In Beaver, the Supreme Court elaborated,

53 Some of the non-exhaustive factors that can help show the suspect was subjectively aware of their right to silence or of the consequences of speaking to the police include (1) the suspect’s awareness of being recorded; (2) indications that the suspect is directing the conversation; (3) the suspect’s awareness of what is being investigated and their alleged role in the investigation; (4) the suspect’s exercise of the right to silence by declining to answer police questions; and (5) the suspect’s eagerness to talk, although this factor can weigh for and against such a finding, depending on the circumstances (Tessier (SCC), at para. 88).

[29] The situation in this case bears no similarity to that in Tessier nor are the factors referenced in Beaver present. The respondent was not in a police station interview room in which one would expect that what was said was being recorded. He was not told that he was being recorded even though the police intended to tell him. The police were deliberately non-confrontational in their questioning of the respondent and did not make plain directly or inferentially the jeopardy he faced. In fact, they did quite the opposite, telling him in the passage quoted above at paragraph 24 that he was not a suspect.

[30] There were no indications that he was being recorded. Although PC Breault had his memo book out, he made only 28 lines of notes. They are out of chronological order and so it is clear that only some of them were made during the interview. No notes were made through about 10 pages of the audio transcript. In any case, a video or audio recording is very different than a few jottings in a police memo book and would be viewed by the respondent very differently as well.

[31] Believing that the police are making a few handwritten notes of what one is saying is qualitatively different from believing that they are making an audio recording to be later used in court. Justice LaForest for the Supreme Court in R. v. Sanelli, [1990] 1 S.C.R. 30 at para. 32 emphasized the difference, albeit in a different context,

I am unable to see any similarity between the risk that someone will listen to one's words with the intention of repeating them and the risk involved when someone listens to them while simultaneously making a permanent electronic record of them. These risks are of a different order of magnitude. The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable. They involve different risks to the individual and the body politic. In other words, the law recognizes that we inherently have to bear the risk of the "tattletale", but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words.

[32] In terms of the considerations from Beaver, the respondent was passive in the interview and did not direct the conversation for his own purposes. He only responded to questions and did not volunteer new information extending beyond the questions. He did not decline to answer any of the police questions. Although he was aware that a homicide investigation was taking place and that his car was involved, this in view of the other circumstances could not have led to knowledge the interview was being recorded. In conclusion, there is no indication that the respondent would have understood that the consequences of making a statement would have been that the statement would be used in court against him.

[33] In conclusion, it has not been shown that the respondent knew of his right to choose to speak nor was there any other adequate substitute for the absence of the primary caution.

3. HAS THE CROWN PROVED BEYOND A REASONABLE DOUBT THAT THE RESPONDENT’S UNCAUTIONED STATEMENT WAS VOLUNTARY?

[34] The Crown can still succeed in proving voluntariness in the absence of actual knowledge of the right to choose whether to speak or not. The Crown must show that the suspect retained his right to choose whether to speak and none of the indications of involuntariness such as threats, promises or oppression were present.

[35] Mr. Ross in his argument that the Crown has failed in its burden argues that the lack of a caution impacted on the respondent’s “operating mind” and that the process was unfair. He did not argue that there had been improper inducements or any of the more traditional methods by which a statement can be rendered involuntary. I agree that there were no inducements nor oppressive circumstances that would defeat the voluntariness of the statement.

[36] But the law has travelled a significant distance since Ibrahim and its original formulation of the voluntariness rule for statements made to persons in authority. The current state of the voluntariness rule was summarized in Tessier itself. Fairness in taking the statement is a major theme,

70 The [voluntariness] rule is animated by both reliability and fairness concerns, and it operates differently depending on context. As Iacobucci J. explained in Oickle, while the doctrines of oppression and inducement are primarily concerned with reliability, other aspects of the confessions rule, such as the presence of threats or promises, the operating mind requirement, or police trickery, may all unfairly deny the accused’s right to silence (paras. 69-71; Rothman v. The Queen, [1981] 1 S.C.R. 640, at pp. 682-83 and 688, per Lamer J.; Hebert, at pp. 171-73; Whittle, at p. 932; R. v. Hodgson, [1998] 2 S.C.R. 449, at paras. 21-22; Singh, at para. 34). A statement may be excluded as involuntary because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence, whatever the context indicates. It may be excluded if it was extracted by police conduct “[that] is not in keeping with the socio-moral values at the very foundation of the criminal justice system” (J. Fortin, Preuve pénale (1984), at No. 900).

71 Even if reliability and fairness concerns are often tightly intertwined, the police caution is typically understood as speaking to fairness.. (Emphasis added)

[37] The salient voluntariness issue when a primary caution is not given is fairness to the suspect. There are two aspects in this case: 1. Can the Crown demonstrate that the respondent possessed an “operating mind”? ; and 2. Did police trickery undermine fairness in the statement taking process? The focus must be on the conduct of the police: Singh, at para. 36; R. v. Hebert, [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1 at paras. 54, 66.

a. THE OPERATING MIND REQUIREMENT

[38] The leading case on the operating mind requirement continues to be R. v. Whittle, [1994] 2 S.C.R. 914. Justice Sopinka drew on the common law voluntariness case of Horvath v. R., [1979] 2 S.C.R. 376 and the Charter cases of R. v. Clarkson, [1986] 1 S.C.R. 383, 25 C.C.C. (3d) 207 and R. v. Hebert, [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1. He concluded,

46 The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind?

[39] Affirmed in R. v. Oickle, 2000 SCC 38 at paras. 63-64; and Tessier at paras. 8, 52.

[40] In Whittle, to arrive at his conclusion, Justice Sopinka relied on Clarkson and this quote from Justice McIntyre’s reasons (at para. 41):

To be aware of the consequences in this context simply means to be capable of understanding that her statement could be used in evidence in proceedings to be taken against her. There is no novelty in this approach. It is consistent with the familiar and customary warning derived from the English judges’ rules which was to the effect that “you may remain silent but anything you say will be taken down in writing and may be given in evidence”. This warning was designed to insure knowledge of the consequences of the statement, that is, its possible use in proceedings against the accused.

[41] The case at hand bears substantial similarity to R. v. Wong, 2017 ONSC 1501 at para. 81 where Reginal Senior Justice Fuerst held, in the absence of a caution, that there was doubt whether the accused knew what was at stake in talking to the police. He may well have failed to appreciate that what he said could be used against him. There was a reasonable doubt that the statement was voluntary. The same holds true in this case.

b. POLICE TRICKERY

[42] The issue of the impact of police trickery on voluntariness can be broken down into two categories: 1. The instances in which police conduct “shocks the community” and is in itself sufficient to render a statement inadmissible: Oickle at paras. 65-67; and 2. Instances of police trickery that do not go that far but nonetheless may be an important factor in the voluntariness inquiry: Oickle at para. 69; Tessier at paras. 8, 10, 68, 87. The purported trickery in this case falls into the second category.

[43] Three police officers testified on this hearing. Lead investigator DC Robbie testified that all investigators including the two officers conducting it, agreed that the interview with the respondent should be fully cautioned. The police wanted the statement to be admissible in court.

[44] DC Mavity and PC Breault were the officers who conducted the interview. DC Mavity, with the homicide squad since 2015, testified that he simply forgot to inform the respondent that any statement he made could be used against him in court. The officer was nervous. It was an oversight. In contrast to the lack of a caution here, it was elicited that PC Mavity had cautioned the owner of the stolen license plates that were found on the Ford Fusion before interviewing her. PC Breault did not remember discussions beforehand about cautioning the respondent, but he did testify that he believed that he had to be cautioned.

[45] DC Mavity testified that he made the decision to tape record the interview. It was the best evidence for court, much better than notes. It was planned that the respondent would be told that the interview was being recorded. PC Breault testified that he recorded the interview with a recording device in the front of his police vest. However, DC Mavity testified that because he was nervous, he forgot to inform the respondent that the interview was being recorded.

[46] In summary, the police officers who actually conducted the interview admitted to a lack of care and diligence in two aspects: not cautioning the respondent and not telling him that the interview was being recorded. It was intended that the respondent would be advised of both, but neither was actually conveyed. In both instances, the police “forgot” to do what they say they intended.

[47] The claimed failure of memory must be viewed with serious skepticism. This, in my opinion, could not be a mere lack of diligence. It was deliberate. Not just one officer forgot to give the caution: they both did. Not only was the caution forgotten but telling the respondent that the interview was to be recorded was also missed. That is a lot of forgetting and all of if of information that was intended to benefit the respondent and equip him to make a meaningful choice whether to speak. In addition, the police intentionally obscured the respondent’s jeopardy by telling him falsely, as quoted above at paragraph 24, that he was not a suspect. This comment supports the conclusion that the omission of the caution and the skating quickly over the right to silence was to ensure that the respondent would speak to them.

[48] Of necessity, police officers are custodians of a suspect’s informational rights to the right to silence and, upon detention or arrest, the right to counsel which serves to effectuate the right to silence. Yet if the accused is made cognizant of his or her rights, the prospect that he will make a statement to the police, a potent tool in the hands of the prosecution in court, will be significantly diminished. Thus, despite having the obligation to give the rights, there is a built-in incentive to obscure them.

[49] In this case, at least unconsciously but more likely consciously, this incentive was allowed to prevail over the duty of the police to give the caution. The failure to caution the respondent constituted a police trick. The Supreme Court commented in Tessier at para. 87 on situations in which the caution is deliberately not given to a suspect:

[The denial of the right to silence] might arise where there is evidence of police trickery, for example circumstances in which the absence of a caution is the result of a willful failure to give a caution or a deliberate tactic to manipulate the suspect into thinking they have nothing at stake (see, e.g., R. v. Crawford, [1995] 1 S.C.R. 858, at para. 25; R. v. Auclair, (2004), 183 C.C.C. (3d) 273 (Que. C.A.), at para. 41; M. (D.), at para. 45; Higham, at para. 22). Impropriety on the part of the police, usually in the form of obscuring the jeopardy faced by the suspect to encourage cooperation, may unfairly deny a suspect their right to silence. Plainly, the statement should be excluded if the police deception shocks the community. But even if it does not rise to that level, deceiving the interviewee into thinking that, as a mere witness, they are in no jeopardy and that their statements will not be used in evidence against them could preclude admissibility at the end of the day. “[T]he ability to make a meaningful choice remains pertinent where trickery is involved”, write Lederman, Fuerst and Stewart, “and exclusion is mandated where there is a reasonable doubt as to the confession’s voluntariness in this regard” (¶8.126). (Emphasis added)

See also para. 10.

[50] The present case is an example of what the Court discussed in Tessier. The failure to give the caution properly was deliberate and for the purpose of ensuring that a statement was obtained.

CONCLUSION

[51] I am not convinced the respondent knew of his right to silence nor that he knew what he said could be used against him in court. Furthermore, the failure to give the caution was deliberate and fundamentally unfair. The police did nothing to correct the imbalance between them and the respondent and then exploited it to obtain a statement.

[52] The Crown has not proven voluntariness beyond a reasonable doubt. The respondent’s statement is consequently inadmissible at his trial.

D.E. HARRIS J. Released: January 29, 2024