



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Othman, 2018 ONCA 1073

DATE: 20181224

DOCKET: C63251

Simmons, Juriansz and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hamza Othman

Appellant

Frank Addario and Samara Secter, for the appellant

Christopher Webb and Dena Bonnet, for the respondent

Heard: October 25, 2018

On appeal from the conviction
    entered by Justice Irving W. André of the Superior Court of Justice, sitting with
    a jury, on October 4, 2016.

By the Court:

A.

Facts and issues

[1]

The appellant was
    found guilty of second-degree murder by a jury. The events giving rise to the
    conviction occurred at and near a backyard house party.  The appellant was 19
    years old at the time.

[2]

It may be unclear
    whether the appellant and his friends were invited to the party by a guest.
    What is clear is that they did not know the host and were asked to leave. As
    they were leaving, one of the partygoers (the instigator) sucker-punched one
    of the appellants friends (the initial victim). When another of the
    appellants friends attempted to intervene, the instigator punched him as well.
    The intervening friend pushed the instigator to the ground and the appellant
    and his friends left the backyard. As they were making their way to the street,
    one member of the appellants group damaged a car mirror. A group of the partygoers,
    estimated at between 20 and 70 people, left the house party to confront the
    appellants group on the street. The confrontation resulted in violence. Among
    other things, the instigator struck the initial victim with a 2x2 tree stake.
    Soon after, the appellant produced a pocket knife and stabbed one of the
    partygoers (the victim), causing his death.

[3]

The appellant was
    arrested later the same day, spoke to a lawyer and was then interviewed by the
    police. The interview lasted several hours. During this police interview, the
    appellant admitted that he stabbed the victim. The appellants statement was
    ruled voluntary and was used to cross-examine him at trial.

[4]

The appellant
    appeals his conviction and submits that the trial judge erred:

(i) in finding that his statement to the police was voluntary;

(ii) by refusing to charge the jury on the defence of others;

(iii) by giving an unbalanced review of the evidence in his
    instructions on self-defence; and

(iv) by effectively taking away the defence of provocation from
    the jury.

[5]

For the reasons
    that follow, we allow the appeal.

B.

The appellants Statement to the
    police

(1)

The Trial Judges Reasons Holding the Appellants Police Statement
    Voluntary

[6]

In ruling the
    appellants statement voluntary, the trial judge noted that the appellant
    provided an inculpatory statement hours after repeatedly asserting his right to
    silence. The trial judge concluded the appellant did so as the result of seeing
    a video of his girlfriend disclosing to the police inculpatory admissions he
    allegedly made to her following the stabbing.

[7]

The trial judge held
    that the interviewing police officer had a right to continue questioning the
    appellant, despite the appellants assertions of his right to silence, so long
    as the officer did not offer the appellant a
quid pro quo
and so long as the
    appellants will was not overborne by the officer such that an atmosphere of
    oppression resulted.

[8]

The trial judge found
    there was no evidence that the interviewing officer or any other officer made
    any threats or offered any inducements to the appellant in exchange for a
    statement. The trial judge concluded that the appellants will was not
    overborne and that no

quid
    pro quo
was offered; rather, there was merely [the
    appellants] despair on seeing his girlfriend disclose what [the appellant]
    allegedly said to her concerning the fatal stabbing.

[9]

The trial judge
    also rejected a defence argument that attempts by the interviewing officer to
    undermine the legal advice given to the appellant and suggestions that the
    appellant might not get an opportunity to testify vitiated the voluntariness of
    the statement. In the trial judges view, the appellant made it clear during
    the interview why he decided to give a statement despite his earlier assertions
    of his right to silence. The appellants attitude changed dramatically after he
    saw his girlfriends statement. On seeing the video, he said, I cant believe
    she just did that. He later told the interviewing officer, [t]he minute you
    showed the video, I cracked. Thus, in the trial judges view, there was no
    evidence of threats or inducements and the sole trigger for the appellants
    inculpatory statement was seeing his girlfriends incriminating video statement.

(2)

The Crowns Position on Appeal

[10]

On appeal, the
    Crown submits that, in determining voluntariness, the trial judge applied the
    correct legal principles and properly considered the entire context of the
    interview. The interviewing officers statement, for example, that the
    appellants trial strategy might be that he would not testify, was a fair and
    accurate characterization of what could happen at trial. The Crown asserts that
    the trial judges factual finding that the appellant chose to speak as a result
    of being confronted, entirely properly, with the truth as conveyed to the
    police by his girlfriend, is entitled to deference.

(3)

Standard of Review

[11]

Whether a
    confession is voluntary is a question of mixed fact and law. If the trial judge
    considered all the relevant circumstances, a finding of voluntariness is
    essentially a factual one that should only be interfered with if there is some
    palpable and overriding error which impacted the trial judges assessment of
    the facts:
R. v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at
    paras. 22, 71;
R. v. Spencer
,
2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 16-17;
R. v. Wabason
, 2018 ONCA 187, 361 C.C.C. (3d) 98, at para. 8.

(4)

Discussion

[12]

We accept the
    appellants submission that the trial judge erred by failing to identify improper
    threats, inducements, and a
quid pro quo

offered by the interviewing officer and by failing to
    consider whether, in the face of those threats and inducements, the Crown had satisfied
    its onus of proving beyond a reasonable doubt that the appellants statement
    was voluntary.

[13]

As was the case
    in
R. v. Wabason
,
    in our view, the trial judge confine[d] too narrowly the notion of inducements
    or threats leading to a statement: at para. 15.

[14]

Based on our
    review of the record, the interviewing officers statements to the appellant
    during the interview went well beyond saying the appellant might adopt a trial
    strategy of not testifying and crossed the line into undermining the legal
    advice the appellant had received to remain silent. In particular, at least one
    of the officers statements asserted more generally that the appellant may
    never get an opportunity to tell his side of the story. More significantly, the
    officers statements suggested the appellant would not be believed if he did
    not tell his side of the story to the police and further, that a trial court
    would see him, on video, refusing to comment.

[15]

For example, the
    interviewing officer made the following statements to the appellant prior to
    his inculpatory statement:

19:07

Officer: If your mom says, this is what you should do, your
    lawyer says this is what you should do, I say, this is what you should do.
You
    gotta take what everybody says and decide for yourself, right? Youre a 19 year
    old man, right
?



Officer:
people will judge you on how you are in here
,
    right?



Officer:
So when that goes and gets played in court and you
    dont get a-, say, you dont get an opportunity to ever say your side of the
    story and you get convicted of murder, right, and the jury gets to watch, and
    the judge gets to watch

19:53

[Following an assertion by the appellant that he did not stab
    anyone and had nothing to do with this.]

Officer:
If you didnt do any of that stuff, right?  Then
    you should feel free in telling me what you did last night
, where you were,
    who you were with.

Appellant: Id rather not comment on all that though.

Officer: Well, there you go.
So then no ones gonna believe you,
    right?

19:57  58

Officer: So if you,
if you can tell me how you cut your
    finger and its got nothing to do with the stabbing, why wouldnt you tell me?
You got nothing to lose and everything to gain, right?

Appellant: Ive been advised not to, sir.



Officer: Well, trying, trying to open your eyes to think of
    other possibilities, right, cause
its your decision, right?
Its not my
    decision whether you give your side, its not anybody elses decision, its
    yours, right?
And Im telling you, as a normal person, nobodys gonna believe
    that-, what happened to your finger unless you tell the story. If you decide
    not to, no ones gonna believe it came from anything other than you stabbing
    somebody.

20:00

Officer: So then it comes down to credibility, right? So if you
    sit here and say that it didnt happen at this party, when this guy got
    stabbed, if thats not when it happened and
then it gets proven that it is
    and then you get up and you say, well, now, Im gonna tell my story. Nows the
    time and place to tell my story. How many people are gonna believe you then
    versus who believe you now
when its the time, right?

21:54

[The appellant had been informed that he had admitted the
    stabbing to his girlfriend and that she had given a statement to the police.
    The appellant had denied admitting anything, denied doing anything and asserted
    he would say nothing.]

Officer: Thats the attitude youre showing to the victims
    family, right?
Theyre gonna watch this come court.



Officer:
And a jurys gonna watch this come court.



Officer:
And theyre gonna see you.

[Emphasis added.]

[16]

As noted in
R. v. Van Wyk
,
    [1999] O.J. No. 3515 (S.C.), at paras. 160-68, police assertions to the effect
    that an accuseds credibility is at its highest during a police interview and
    that a trial court will see and take a negative view of a refusal to speak are
    legally incorrect and undermine the accuseds right to silence.

[17]

In our view, the
    interviewing officers comments, as set out above, constituted both a threat
    and an inducement as they suggested negative legal consequences if the
    appellant failed to speak and positive consequences if he spoke.

[18]

Moreover, the combined
    suggestion that, despite legal advice, the 19-year-old appellant should make
    his own decision about whether to speak and that he would not be believed if he
    did not speak during the police interview, improperly undermined the advice the
    appellant received from his lawyer.

[19]

We conclude that
    the trial judge erred in failing to recognize that the interviewing officers
    comments amounted to both threats and inducements.

[20]

Further, once the
    appellant had been told that his girlfriend had given an incriminating
    statement, the interviewing officers prior assertion that the trial court
    would see the appellant refusing to comment became an implicit
quid pro quo
 the appellant would suffer negative legal consequences if he maintained his
    position that he had done nothing wrong and did not want to comment and he would
    be viewed in a better light by the judge and jury if he accepted
    responsibility.

[21]

In these
    circumstances, the trial judge should have considered whether the officers
    threats and inducements standing alone or in combination with other factors, [were]
    strong enough to raise a reasonable doubt about whether the will of the subject
    [was] overborne:
Wabason
,
at para. 19, citing
Oickle
,
    at para. 57. Further, the appellants age and the overall context of the
    interview are relevant considerations to this inquiry:
Wabason
,
    at para. 20, citing
Oickle
,
    at para. 42.

[22]

Here, the
    appellant was a 19-year-old young man at the time of his police interview and
    had little prior experience in dealing with the police. Before providing an
    inculpatory statement at 22:56 on October 18, 2014, he had been in a police
    interview room since 17:16 and the formal interview had begun four hours
    earlier, at 18:54. During the course of the interview, which continued with
    some interruptions while the interviewing officer obtained additional information
    including the fact of the appellants girlfriends statement to the police, the
    appellant said no comment in response to the officers questions on more than
    100 occasions.

[23]

In the context of
    this case, we agree that the appellants statements no comment did not
    require the police to cease questioning. Although the appellant repeatedly said
    no comment, he never asked to terminate the interview or to return to his
    cell. Part way through the interview, in addition to saying no comment, he
    also began to claim he had nothing to do with the incident. Considered in
    context, his assertions that he did not wish to comment were somewhat equivocal,
    as he seemed content to learn what information the police had, which the
    officer disclosed piecemeal as the interview continued.

[24]

However, as we
    have said, in our view, various statements by the interviewing officer amounted
    to improper threats and inducements. Although we acknowledge that the immediate
    trigger for the appellants inculpatory statement may have been the appellants
    despair at seeing his girlfriends incriminating video statement, to render a
    statement involuntary, threats and inducements need not be the sole
    contributing factor:
Oickle
,
    at para 57.

[25]

Here, the threats
    and inducements constituted an improper attempt to undermine the legal advice
    the appellant had received and amounted to an implicit
quid pro quo
.
    In all the circumstances, we are not satisfied that the Crown has satisfied its
    burden to prove beyond a reasonable doubt that the interviewing officers
    threats and inducements did not have a coercive effect on the appellant and did
    not contribute to his will to remain silent being overborne. In our view, the
    Crown failed to prove that the appellants statement was voluntary beyond a
    reasonable doubt, accordingly it should have been excluded from the evidence at
    trial.

C.

Defence of Others

[26]

Defence counsel
    at trial asked the trial judge to include defence of others in his charge to
    the jury. The trial judge refused, explaining:

I really dont think quite
    frankly that I have to put this point. First of all, I think its superfluous,
    because we know that force was applied to [the appellant]. We also know that
    force was applied to, earlier, to [the initial victim]. So, and, and the
    evidence clearly suggests according to [the appellant], his testimony, that he
    stabbed [the victim] for the purpose of defending or protecting himself, not
    [the initial victim] from the use or threat of force.

[27]

We accept the
    appellants submission that the trial judge erred by failing to instruct the
    jury on both aspects of s. 34 of the
Criminal Code
, R.S.C., 1985, c. C-46 (self-defence
    and defence of others). In concluding there was no air of reality to the
    defence of defence of others, the trial judge erred in focusing on what the
    appellant said in cross-examination.

[28]

On our reading of
    the record, there were other aspects of the appellants testimony in-chief and
    his statement to the police, as well as the testimony of others, that provided
    a basis for the defence to be left with the jury. Although aspects of the
    appellants cross-examination may have undermined the basis for that defence,
    it was for the jury to determine what aspects of the evidence they would rely
    on, not the trial judge. The fact that the trial judge referred to the assault
    on the initial victim as part of the context for his instructions on self-defence
    did not obviate the requirement to charge on defence of others.

D.

unbalanced instructions on self-defence

[29]

We also accept
    the appellants submissions that the trial judges instructions to the jury on
    self-defence were unbalanced. Not only did the trial judge telegraph to the
    jury that he did not find the appellants testimony about his injuries credible,
    the trial judge also failed to refer to evidence that supported the appellants
    version of events.

[30]

For example, the
    trial judge invited the jury to examine a photograph of the appellant to
    observe whether they could see the facial bruises the appellant claimed to have
    suffered. The photograph was taken less than 24 hours after the incident. The
    trial judge did not draw the jurys attention to the testimony of the police
    photographer who had agreed that bruises often do not show up immediately after
    an event, and added it was his preference to have individuals return a few days
    later for photographs (which was not done with the appellant).

[31]

Instead, the
    trial judge instructed the jury it is a matter of common sense that if
    repeatedly punched with moderate to great force, [the appellant] would have
    suffered visible facial injury. Read in context, this statement telegraphed
    the trial judges view that the appellants evidence of being punched and
    suffering facial injuries was not credible.

[32]

Although a trial
    judge is entitled to express an opinion concerning his or her view of the
    evidence, by stating his opinion by reference to common sense and also failing
    to refer the jury to evidence pointing the other way, the trial judge may well have
    undermined the jurys ability to evaluate the appellants evidence fairly. Nor
    did the trial judge remind the jury, in reviewing the photographic evidence, to
    keep in mind that the appellant is dark-skinned.

E.

Provocation

[33]

During the pre-charge
    conference the trial judge expressed scepticism about leaving provocation as a
    defence. Nonetheless he accepted the defences request to do so. However, his
    instructions to the jury virtually eliminated an element of the defence. The
    trial judge stated: there is no specific evidence that the [victim] and/or his
    companions engaged in a wrongful act or insult that was sudden. On our review
    of the record, there was evidence capable of supporting a finding of suddenness.
    Further, we read this instruction as the trial judge offering his view that
    suddenness could not be made out. In doing so, he usurped the function of the
    jury.

F.

DISPOSITION

[34]

Based on the
    foregoing reasons, the appeal is allowed and a new trial is ordered.

Released: December 24, 2018

Janet Simmons J.A.

R.G. Juriansz J.A.

M.L. Benotto J.A.


