R v Jemba, 2021 ABQB 832

Court of Queen’s Bench of Alberta Citation: R v Jemba, 2021 ABQB 832 Date: 20211020 Docket: 191421130Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Sadik Nuro Jemba Accused Restriction on Publication Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. _______________________________________________________ Reasons for Decision on Voluntariness Voir Dire of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ A.

Introduction [ 1 ] Sadik Nura Jemba, the Accused, is charged with one count of sexual assault contrary to s 271 of the Criminal Code of Canada , one count of sexual interference contrary to s 151 and one count of invitation to sexual touching contrary to s 152. He has pled not guilty to all.

[2] The offences allegedly occurred in the early hours of November 9, 2019 at a residence in which the Accused was one of theresidents. The Accused was arrested at 9:14 AM on November 9 by Constable Lauren Chiswell and was taken to Southeast Division ofthe Edmonton Police Service. They arrived at Southeast Division at approximately 9:47 AM. He was interviewed for close to 1½ hoursbeginning at approximately 6:22 PM, first by Constable Helena McNalley and then Detective Steven Hunt. [3] The Crown seeks to have the statement given by the Accused entered into evidence as it was voluntary.

The Accused arguesthat it was not voluntary and should be excluded. He also argues that it is unintelligible or incomprehensible in many areas rendering itunreliable and, therefore, inadmissible. B. Law [4] A statement or confession by an accused is not admissible in evidence if it is made under circumstances that raise areasonable doubt as to voluntariness: R v Oickle, 2000 SCC 38 , [2000] 2 SCR 3. The fact that a statement is made voluntarilyand found to be admissible does not preclude a finding that the statement or portions of it may be unreliable.

That is, it is still necessaryfor the trial judge to assess the weight to be given to any admissions made. [5] The assessment of whether a statement was made voluntarily may be impacted by whether the police provided inducementsor created oppressive circumstances, whether the accused had an operating mind or whether the police have used trickery. Theoverriding question in each case is whether the will of the accused has been overborne: Oickle para 57. [6] When considering the presence of inducements, courts often look at whether there has been a hope of advantage or a fear ofprejudice directed to the accused.

Oppressive circumstances may include relentless accusations by the police, aggressive or intimidatingquestioning for a prolonged period or the deprivation of necessities of life such as food, drink, medical attention or washroom breaks. [7] The lack of an operating mind may be caused by someone being in shock, intoxicated by alcohol or drugs or suffering from amental illness.

The presence of these factors do not necessarily mean that a statement will be inadmissible as it may still be establishedthat the accused possessed a limited degree of cognitive ability to understand what they were saying and to comprehend that thestatement may be used in evidence against them: R v Whittle, (SCC), 1994 SCC 55 , [1994] 2 SCR 914 at para20. [8] The use of “dirty tricks” by the police may render a statement involuntary and inadmissible where the police conduct “is soappalling as to shock the community” (Oickle para 65).

A certain degree of police trickery is inherent to many effective and appropriatepolice tactics: R v Hart, 2014 SCC 52 at para 212, [2014] 2 SCR 544. The inquiry into the use of police trickery to obtain a confessionis aimed at maintaining the integrity of the criminal justice system. Police are given considerable latitude as to what they can say toinduce a person to make a statement, including things that might not be strictly true.

However, their conduct must not be of such a natureas to shock the community: Oickle at paras 65-66. [9] The police are not required to refrain from questioning a detainee who states that he does not wish to speak to the police.Nevertheless, there is a risk that persistent questioning despite a detainee’s repeated assertion that he wishes to remain silent may raise areasonable doubt that the admissions were not made voluntarily. However, each case must be decided on its own facts.

The number oftimes the accused asserts his right to silence is part of the assessment of all the circumstances, but is not in itself determinative. Theultimate question is whether the accused exercised his free will by choosing to make the statement: R v Singh, 2007 SCC 48, [2007] 3SCR 405 at paras 47-53. [10] In every case, and regardless of the method or behaviour used by the police in obtaining a statement from an accused, theissue is whether there is a basis for doubting whether the accused would have made the statement in the absence of the impugned policeconduct.

As emphasized by the Court in Oickle, the conduct of the police in trying to convince an accused to make a statement onlybecomes improper when the conduct, either standing alone or in combination with other factors, is “strong enough to raise a reasonabledoubt about whether the will of the subject has been overborne” (Oickle at para 57). [11] One other concern that may be relevant to the issue of admissibility is the reliability of the evidence sought to be introduced.Where that evidence is shown to be so unreliable that its probative value is outweighed by its prejudicial effect, the evidence may beexcluded: R v Sethi, 2015 ONSC 2005 paras 7-9.

C. Analysis [12] The Accused was arrested by Constable Chiswell at 9:14 AM on November 9 and was taken to Southeast Division policestation by Constable Chiswell and Constable Kyle Baker, arriving at 9:47 AM. It has been agreed by Counsel that the evidence of fourofficers are relevant to the issue of voluntariness. Those officers include Constable Chiswell, Constable Baker, Constable McNalley andDetective Hunt. [13] Constable Baker and Constable Chiswell each testified that at no time did they threaten the Accused, no promises were madeto him in exchange for a statement and no inducements were given him.

At no time did they hear any other member of the EdmontonPolice Service threaten, promise or induce the Accused at any time. The Accused appeared to fully understand what was said to him andtheir discussions with him were fluid. Neither had any concerns about his sobriety or mental acuity. Constable Chiswell, who charteredand cautioned him, testified that the Accused told her that he understood the charter and caution and wished to speak to a lawyer. [14] Constable McNalley chartered and cautioned the Accused in the interview room at approximately 6:22 PM.

She also testifiedthat she never threatened the Accused nor promised anything to him in exchange for his giving a statement and did nothing to induce himto do so. After he was chartered and cautioned, the Accused did ask to speak to a lawyer and she accommodated his request. At no timedid he ask for a translator and always appeared to provide logical answers to questions, when he did answer questions. She did not have

any concern about his understanding of what was being asked. He never appeared to be under the influence of drugs or alcohol nor did he appear to have any mental deficit. [ 15 ] Detective Hunt monitored Constable McNalley’s interview with the Accused. He confirmed that Constable McNalley chartered and cautioned the Accused. He took over the interview at about 7:23 PM and that was his first interaction with the Accused. He noted that the Accused was very quiet and when he did speak, he was sometimes difficult to understand.

He had no concerns however as to whether the Accused understood what was being asked of him and he believed the answers given by the Accused to the questions asked were in response to those questions. Detective Hunt did not threaten the Accused, he did not promise anything to the Accused in return for giving a statement and offered no inducements.

He had no concerns about the sobriety of the Accused nor any concerns about his mental capacity. [ 16 ] During the approximate 1½ hours of the interview by Constable McNalley and Detective Hunt, there were a number of breaks including one to allow the Accused to contact counsel.

There were other short breaks when Constable McNalley left the room to get water for the Accused or talk to Detective Hunt while he was monitoring the proceeding. [ 17 ] I am satisfied from all of the evidence adduced in the voir dire that there were no threats or promises made nor any favours offered to the Accused in exchange for his providing a statement or, more particularly, answers to the questions posed by Constable McNalley and Detective Hunt.

The defence points to an exchange between Detective Hunt and the Accused regarding whether the Accused will be allowed to go home and he is told that a judge will release him on conditions. Detective Hunt then says that the conditions they will be asking for will depend on how the interview goes.

Having viewed the recording and the demeanor of the Accused, I am not satisfied that the comments of Detective Hunt operated as an inducement to the Accused to provide a statement or answer questions. [ 18 ] The defence also suggests that, in the circumstances, the Accused should have been chartered and cautioned again once Detective Hunt took over the interview.

By that point in time, the Accused had been chartered and cautioned on two occasions (by Constable Chiswell when arrested and by Constable McNalley when she began the interview) and, on two occasions (the second being near the start of the interview) the Accused availed himself of his right to counsel. Further, and notwithstanding Detective Hunt’s markedly different and much more aggressive interview technique, the Accused did not change his demeanor or countenance as Detective Hunt continued his questioning.

On the evidence, I do not believe that the Accused’s understanding of the circumstances, including his arrest and questioning, changed nor had the circumstances changed such that the Accused should again have been chartered and cautioned. [ 19 ] While the Accused tried to remain silent for the most part during the interview, Constable McNalley seemed to suggest to him that his failure to deny her allegations of his culpability was tantamount to admitting them. Further, Detective Hunt continued to aggressively question the Accused notwithstanding the Accused’s continued attempts to remain silent.

The Accused suggests that these actions or comments by Constable McNalley and Detective Hunt essentially denigrated the likely advice he received from counsel to remain silent. Having viewed the recording, I am not satisfied that the actions of either Constable McNalley or Detective Hunt created oppressive circumstances such that the Accused no longer had an operating mind. He was not tricked and his will to remain silent was not overborne. [ 20 ] The Accused argues that his comments in the statement are so unintelligible or incomprehensible as to render it wholly unreliable. As such, it is not admissible.

In my view, this is not so much a question of relevance, as it was framed by the defence, but rather a question of whether the statement is so wholly unreliable that it is simply not evidence. If the entire statement is so unintelligible or incomprehensible as to render it useless, then it is not admissible as it is not evidence.

However, if portions of it are sufficiently intelligible as to compel a consideration and determination of reliability, then the statement may be admitted into evidence but subject to my determination, as the trial judge, of the ultimate weight to be given to those portions of it sought to be relied upon in the trial proper. [ 21 ] There are portions of the Accused’s statement and, more particularly, his answers to questions that are unintelligible or incomprehensible to the listener.

Further, there are some answers given where the answer itself is unintelligible but the questioner (whether Constable McNalley or Detective Hunt) repeats back their understanding or comprehension of the answer given. Sometimes the Accused might then say yes or no or he may nod or shake his head. The Crown suggests that saying yes or no or the body language of the Accused is equally reliable as a statement as it is an acknowledgement that the repetition or

interpretation by the questioner is accurate. I will make that determination later. [ 22 ] In the meantime, I am satisfied that, at least, some portions of the statement are both comprehensible and reliable. It is also voluntary. Accordingly, the statement is admissible. However, I would emphasize that I will again be considering the issue of reliability of any statements attributed to the Accused in the trial proper. In doing so, I will consider the specific answers given,

interpretations of those answers by the questioners and the body language of the Accused in determining the weight, if any, that should be given to the statements. D. Conclusion [ 23 ] I am satisfied beyond a reasonable doubt that the statements by Mr. Jemba in his interview with Constable McNalley and Detective Hunt on November 9, 2019 were free and voluntary. At no point was the will of Mr. Jemba overborne. The statement is admissible. However, the reliability of those portions of it that the Crown may seek to rely upon at trial and the weight to be attributed to those portions shall be determined at trial. Heard on October 18 and 19, 2021. Decision given orally on October 20, 2021.

Dated at Edmonton, Alberta on October 20, 2021. _________________________ Eric F. Macklin J C Q B A Appearances: C. Tess and D. Fostey for the Crown D. Anderson for the Accused