R. v. Oickle, 2011 MBPC 31

CITE# 2011 MBPC 31 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Michael Himmelman, ) for the Crown - and - ) ) Biniam Worede Hailemolokot ) T. Adam Masiowski, ) for the accused Biniam Worede Hailemolokot - and - ) ) Natnele Mesgna ) Leonard Tailleur, ) for the accused Natnele Mesgna - and - ) ) Halefom Petros Kyriakakos ) Katherine Bueti, ) for the accused Halefom Petros Kyriakakos ) ) ) Judgment delivered: April 19, 2011 HEINRICHS, ROBERT, P.J.

RULING ON VOIR DIRE RE: VOLUNTARINESS OF STATEMENTS INTRODUCTION [ 1 ] Just before midnight on Saturday, August 2, 2008, Georgina Kolbauer and Timothy Clare were walking together down Nathaniel Street, near the Grant Park Mall in Winnipeg, having left their apartment in search of some food from Burger King or McDonalds. While walking on the street, they were approached by a group of seven or eight young males; suddenly one of them, a young “African gentleman” produced a gun and attempted to rob the two of them. A brief skirmish ensued and quickly Kolbauer and Clare jumped into a van that was passing by.

They called 911 and within minutes the Winnipeg Police Service had a description of incident and the males involved. Cruiser cars were dispatched to the area and within thirty minutes a vehicle with four occupants matching the description of the suspects was observed within a few blocks of Nathaniel Street. The vehicle was stopped at approximately 12:07 a.m. on August 3, 2008 and the four males, three adults and one youth were taken into custody. [ 2 ] The three adult males, Halefom Kyriakakos, Natnele Mesgna and Biniam Hailemolokot were formally arrested between 12:21 a.m. and 12:30 a.m.

Their charges included Robbery, uttering threats and weapons related charges. [ 3 ] A preliminary hearing took place on April 19, 20, 21, November 12 and December 17, 2010 with respect to the charges that Kyriakakos, Mesgna and Hailemolokot are facing. The evidence included some agreements by all counsel and testimony from three civilian witnesses and fourteen police officers. One of the agreements reached was that Sergeant Allan Woychyshyn’s testimony and possible evidence with respect to voluntariness would be waived.

It was also agreed that the voir dire concerning the voluntariness of each of the three co-accused’s statements would proceed by way of the officers each giving all of their evidence at the preliminary hearing and at the end counsel would provide their submissions on the voir dire.

This Court has now had the opportunity to consider those submissions as well as the evidence presented, including watching and listening to each of the accused’s statements given to the Winnipeg Police Service via audio and video recording, and filed as Exhibits “A”, “B” and “C” in these proceedings, and so the Court will now rule on the voluntariness of each of the accused’s statements.

THE LAW ON VOLUNTARINESS [ 4 ] The confessions rule, which states that the Crown must prove beyond a reasonable doubt that an accused’s statement to the police, or persons in authority, is voluntary, has long existed in common law. In affirming this rule in R. v. Oickle , 2000 SCC 3 , and in distinguishing it from “the right to silence” pursuant to the Charter, the Supreme Court of Canada confirmed four aspects or branches to the rule. Any one of the following can make a statement involuntary:

a) inducements such as threats or promises to the accused,

b) an atmosphere of oppression,

c) lack of an operating mind, or

d) other police trickery. [ 5 ] However, the Court also notes that the first three should not be considered in isolation. They need to be looked at as a whole because “the confessions rule is concerned with voluntariness, broadly defined”.

RULING ON THE VOIR DIRE [ 6 ] A number of Winnipeg Police Service officers were involved in the stopping of the suspects’ vehicle, arresting the individuals from within that vehicle, transporting them to the District 6 station, processing them when they arrived at that station, placing them in separate holding cells and then monitoring them up until when they were separately taken into video interviewing rooms for the purpose of obtaining a statement from each of them.

This Court will be addressing some of the time lines and events concerning each accused later on when dealing with their statements separately, but some general observations that apply to all three individuals will be made first. [ 7 ] Almost all of the police officers who had any significant contact or involvement with any of the three accused were called to testify by the Crown.

All of the officers confirmed in their testimony that these three individuals were cooperative, that the police officers never laid hands on them except to assist when guiding them into the police vehicle or when escorting them while they were walking, that they never struck any of them, that they never threatened them or promised them anything and that they never saw any other officer do anything of the sort either. This evidence was not significantly challenged by any of the accused’s lawyers.

None of the three accused testified on the voir dire, and so this evidence must be accepted. [ 8 ] All three individuals are young adult males of African descent and had no real involvement with the law and the police before. In watching their video statements it is clear that all three can communicate in English and understood the questions that they were answering. At the time of their respective statements, each of them was coherent and did not slur their words or say incomprehensible things.

They were not intoxicated when the videotaped interviews took place, in spite of the fact that both Halefom Kyriakakos and Biniam Hailemolokot admit drinking alcohol the evening prior.

There were some minor hearing problems that can be seen when watching the videotaped statement of Biniam Hailemolokot, but with the officers’ assistance from time to time, the statement was able to continue and it is clear that he understood the officers’ questions. [ 9 ] There may be Charter issues raised at a future date, but that does not affect question of whether the statements these accused gave to the police were voluntary and should be admitted as evidence for the purpose of the preliminary hearing.

THE STATEMENT OF NATNALE MESGNA [ 10 ] Natnele Mesgna was ordered out of the vehicle he and the others were in around 12:07 a.m. on August 3, 2008 and was formally arrested a few minutes later, between 12:25 and 12:30 a.m. Constables Waters and Janz drove him to the District 6 Station and arrived at 12:37 a.m., and placed into holding room #2 where he remained until being taken into video interview room #5 at 12:28 p.m. on August 3. While being processed at the police station, he went before the Incoming Supervisor and his only question was why he was there.

Sergeant Woychyshyn notes his answer to that question on the Prisoner Log Sheet as being “You just talk to these officers, and they will explain everything?” His response was “Okay”. For a number of hours Constable Janz does prisoner checks every 15 minutes and the only interruption is at 3:25 a.m. when the accused is allowed to speak to a Legal Aid lawyer that the officers have contacted on the phone. Constable Janz testified that he would have spoken to the accused from time to time and if any requests for water or to use the bathroom had been made, they would have been granted.

He can’t say for certain if there were any other requests made; he has not recorded any such requests and does not recall such a request being made. If there had been a request for food or a blanket, he would have taken that request to the Sergeant on Duty. As counsel waived the necessity of Sergeant Woychyshyn testifying, the evidence on this is incomplete. The evidence does not disclose any request for food by the accused or an offer to provide food to the accused at any time before he entered video interview room #5 some twelve hours after his arrest.

It must be concluded that he did not eat any food during that time. [ 11 ] Natnele Mesgna enters the video interview room with Detective Huyghe and Sergeant Friesen and is eager to talk, interrupting the officers before they are done their introductory comments, right to counsel warning and police caution. He said he did not want to speak to counsel right then and freely answered the officers’ questions. He does not ask for anything. Near the end of the interview, one hour in, Detective Friesen asked him if he needs anything and when the accused asks for water, it is immediately provided.

The officers were forceful and relentless in their questioning of this accused. What the videotaped statement shows, however, is that he was very much a willing participant in talking to the police and there is no “atmosphere of oppression” during the interview. At no time did they threaten him or promise him anything. The accused clearly knew what he was saying and that it may be used to his detriment, and the police did not resort to any trickery. [ 12 ] The only question remaining is whether the lack of food alone is oppressive enough to make the statement involuntary.

Natnele Mesgna had been in custody for twelve hours when the statement started, had spent most of that time sitting or sleeping in a holding room with only a small bench and table, and had likely not eaten anything. When the Court considers his personal background, age and lack of prior involvement with the police, this 12 hour period must be considered a lengthy period of time. In the Oickle decision the

Supreme Court of Canada specifically mentions denying food as one of the factors that can create an atmosphere of oppression. Theexample of oppression that they detail, from R. v. Hoilett (1999), (ON CA), 136 C.C.C. (3d) 449 (Ont. C.A.) however, goes far beyond a simple lack of food that may never have been asked for. In the Hoilett case, requests for clothes and tissuewere denied, the accused was left naked and cold in a cell for a period of time and he was falling asleep during the interview.

In NatneleMesgna’s situation, the Court finds that the lack of food provided to the accused is not enough to render his statement involuntary due toan “atmosphere of oppression”. [13] In all of the circumstances, the Court is satisfied beyond a reasonable doubt that Natnele Mesgna’s statement is voluntary and itwill be admitted into evidence at the preliminary hearing. THE STATEMENT OF BINIAM HAILEMOLOKOT [14] Biniam Hailemolokot also exited the vehicle at police request at around 12:07 a.m. on August 3, 2008.

He was arrested byConstables Duncan and Middleton at 12:30 a.m. and arrived at the District 6 Station at 12:37 a.m. He was placed in holding room # 1and at 12:46 a.m. appeared before Sergeant Woychyshyn. His only question or issue before the sergeant was for a glass of water. Hiscounsel asked a lot of officers when they were testifying if they had provided his client with a glass of water, however, as was earliernoted, Sergeant Woychyshyn was excused by all counsel from testifying and so the person who this request was made to was not calledto tell the Court if he complied with that request or not.

The Court can therefore only conclude that the request was complied with at thattime. [15] Biniam Hailemolokot did request to speak with counsel, and after some delays, he is able to speak with a Legal Aid lawyer at4:29 a.m. Detective Huyghe also checked in on the accused in the holding cell at 10:55 a.m. He asked the accused if he needed to use thewashroom or if there was anything else he needed, such as water. Mr. Hailemolokot declined.

There was no evidence this accused wasever provided with any food. [16] At 12:39 p.m., some twelve hours after his arrest, Detectives Grafton and Trinder escort Biniam Hailemolokot to interviewroom #6. They noted that the accused had been sleeping in the holding cell most of the morning and after some introductions led himthrough his right to counsel warning and police caution. He said that he talked to a lawyer already who told him not to say anything andwould maybe talk to him again later.

The detectives carried on with their questions, and except for some apparent hearing difficultiesfrom time to time, the accused answered all of their questions. He requested nothing from the police. The videotaped statement revealedthat he was somewhat groggy at first but more alert as the interview goes on. This may well have been due to the fact that he had justbeen sleeping, as there do not appear to be intoxication related issues.

The hearing problem was dealt with appropriately by the officersrepeating the questions or answers. [17] There were no threats or promises by the officers; there was no atmosphere of oppression evident in the interview as seen onthe videotape. The accused clearly knew what he was saying, that it may be used to his detriment and there was no police trickery.Given this accused’s age, personal background and lack of prior involvement with the police, the apparent lack of food for twelve hoursdoes concern Court. Similar to Natnele Mesgna’s circumstances, however, no request for food was made.

This factor on its own is notenough for the Court to find that his statement was involuntary due to oppression. [18] In all of the circumstances, the Court is satisfied beyond a reasonable doubt that Biniam Hailemolokot’s statement wasvoluntary and it will be admitted into evidence at the preliminary hearing. THE STATEMENT OF HALEFOM KYRIAKAKOS [19] Halefom Kyriakakos was also ordered out the vehicle by the police at 12:07 a.m. on August 3, 2008. Sergeants Bilton andGirard arrested him at 12:21 a.m. and arrived at the District 6 Police station within minutes. Around 12:31 a.m. he was seen by SergeantWoychyshyn.

The accused’s response to whether he has any questions or issues was “Nothing, I guess”. When the prisoner log sheet wascompleted, “sober” was noted under the heading “Behaviour”. Later on Constable Singleton stroked it out and changed it to read “Hasbeen drinking”. After being seen by the sergeant the accused was placed in holding room #4. Constables Sitarz, Singleton and Bergmannand Detectives Grafton and Trinder all had some responsibility for Halefom Kyriakakos over the next few hours. More than one of themobserved that the accused vomited at least five times before 4:05 a.m.

During this time, he requested to speak to a lawyer and was ableto do that around 1:23 a.m. Constable Sitarz also gave him cleaning supplies to clean up his vomit sometime during these three hours. At4:40 a.m. the accused was turned over to Detective Huyghe and Sergeant Friesen. He was left in his holding cell until 7:44 a.m. whenDetective Huyghe and Sergeant Friesen escorted him to interview room #5.

There is no evidence that he had any food or water duringthis time. [20] According to his testimony, Sergeant Friesen was engaged in another task and was monitoring Yonas Mesgna from 4:40 a.m.until 7:44 a.m. and so he did not check on Halefom Kyriakakos. He does not know if other officers checked on the accused during thistime. Detective Huyghe, according to his testimony, had no dealings with the accused until 7:44 a.m. and was of the belief that only atthat time did he and Sergeant Friesen assume charge of this accused. This was not what the other officers testified to.

Sergeant Friesenand Detective Huyghe say they had been briefed earlier, but when they led Halefom Kyriakakos into the interview room at 7:44 a.m.neither one was aware of the fact that this accused had vomited at least five times earlier that morning and neither one had read theprisoner log sheet. [21] Once the interview started and the introductions were done, the officers explained what the accused was being charged withand then explained the right to counsel and police warning. Halefom Kyriakakos asked to speak to a lawyer and was given theopportunity to speak to counsel on the telephone.

When the interview continued, the accused was given a cup of coffee and thequestioning continued. A number of questions later, he stated that he did not want to say anything further. He also began to be nonresponsive and said he would rather not talk about it.

After some further non responses, Detective Huyghe suggested that “This is whereyou got to kind of bunk up and become a man. . .’ and “what does that lead me to believe when you just sit there and don’t say anything.It’s not that we don’t know what happened, we know exactly what happened.” Both officers continued with this line of questioning andthe accused does not respond until he finally said, “I think I’m going to do what my lawyer told me and ...” He was not allowed to finish.

Detective Huyghe interrupted him and said, “Well, that’s fine. But you know I have to do my job too, right? I know exactly what your lawyer told you to do. I’ve got a job to do as well. Okay. I mean, you can sit there and stare at the table all you want, we’re not going anywhere .” ( EMPHASIS MINE ) [ 22 ] The officers and the accused in their custody in fact don’t go anywhere. Over the next hour or so, there were more than one hundred times when Halefom Kyriakakos offered no response to their comments and questions.

After quite some time he finally started talking to the officers and gave them the answers they were looking for. [ 23 ] This accused is a young adult with no prior involvement with the police. He had been in police custody for seven hours without food. He was obviously cold during the police interview. He was shivering at times and even told Detective Friesen that he was shaking because he was cold. He had been sick, throwing up at least five times earlier in the morning, which may or may not have been related to the alcohol he drank the night before.

The officers who question him should have known all of this before the interview, but admit they did not. In all of the circumstances the comments of Detective Huyghe may well have been perceived as a threat by the accused. He was told that they were not going to leave him alone and the clear message was that he had no choice; he would have to talk or they would not leave him alone. In spite of refusing to answer for a long time, he gave in at the end.

Given Halefom Kyriakakos’ personal circumstances that night, the comment “were not going anywhere” and the inescapable conclusion that the officers would not leave until he admitted guilt, amount to an “atmosphere of oppression”. [ 24 ] When assessing all of the circumstances before and during the giving of this particular statement, including the facts that he was detained for seven hours while ill, seemingly without food or drink but for a cup of coffee, the Court finds that the Crown has not satisfied the burden of proving beyond a reasonable doubt that this statement was voluntary.

It will not be admitted into evidence at the preliminary hearing. Original document signed by: HEINRICHS, ROBERT, P.J.