R. v. Oickle, 2020 QCCA 579

Girgis c. R. 2020 QCCA 579 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005836-158 (500-01-008646-082) DATE: APRIL 15, 2020 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. HANY GIRGIS APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] On January 28, 2015, the appellant was found guilty of uttering threats and of various firearms offences.

He appeals his conviction on the sole ground that the trial judge erred in admitting into evidence a signed statement he made to police officers on July 4, 2008, while he was being held in custody. In that statement, he recognized that he had been the one in possession of a loaded firearm, of ammunition and of a holster seized earlier that day inside a condo owned by his uncle and in which he occupied a bedroom. [ 2 ] The appellant submits that the statement was not made freely and voluntarily in that (

a) he was held under oppressive conditions of cold and hunger and (

b) promises were made by police officers that, should he confess, his cousin, who had been arrested with him that day, would be freed from custody and other members of his family would not be further investigated. [ 3 ] In his judgment dated January 22, 2014, pertaining to the admissibility of the statement, the trial judge found that it had not been obtained under oppressive conditions of incarceration or as a result of promises, but, rather, had been made voluntarily so as to protect family members: [1] The accused testified in a clear way , he didn’t, he may have believed, the Defense may have believed that there was enough to question the free and voluntary character of a statement being made, but just from not only the working of the police officers, not only from the general setup of the whole examination and police intervention, but it is clear that the accused was not prompted by undue pressure that were linked to the free and voluntary character of a declaration.

He was not prompted, he was not pressured to make a false declaration. It doesn’t mean that the statement made is the truth that will remain as established at the end of the trial, it may be that the accused may be right that there were, but these reasons are not the ones that are conductive to declaring that the accused did not make a free and voluntary statement. (…) So, as well, it could be his uncle and he wanted to protect his uncle, as well as his cousin .

He wanted to protect his cousin, but the cousin didn’t need any protection, as far as I can see today, he wanted to protect his brother, but there was no undue pressure of any kind that can be demonstrated as touching the free and voluntary character of the declaration being made, it has nothing to do with undue pressure bringing a declaration that should not be admitted in law. (…) And I will have, it is likely that I will have to decide on that at one time in the context of the whole evidence and I’ll take the time to take a good look at it, but that here, that statement has been taken according to the rules and proceedings of law, the statement made clearly has been offered voluntarily, duly corrected and there was no undue pressure or promise, threat that could be said of being of a nature to compromise the free and voluntary nature of that statement. (Emphasis added) [ 4 ] In R. v.

Oickle , [2] the majority of the Supreme Court of Canada held that the determination of the admissibility of a statement raises largely factual issues. Insofar as the trial judge considers all relevant circumstances, an appellate court should therefore only interfere with the decision to admit a statement where it is found that a palpable and overriding error affected the judge’s assessment of the facts: [3]

(…) a disagreement with the trial judge regarding the weight to be given various pieces of evidence is not grounds to reverse a finding onvoluntariness. (…) (…) If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one,and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”:Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v.

The Ship “Kathy K”, (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz). [5] It is not enough to establish the utterance of words that could have induced a detainee to confess. It must also be shown thatthe encouragements had the effect of compromising the voluntary nature of the statement.

To borrow the words of Justice Iacobucci inOickle, “[t]his becomes improper only when the inducements, whether standing alone or in combination with other factors, are strongenough to raise a reasonable doubt about whether the will of the subject has been overborne.”[4] [6] In this case, the appellant was held for a few hours in the evening of July 4, 2008 and was released thereafter. The statementitself was made some 45 minutes into the interview. [7] The first ground of oppression the appellant raised is hunger.

He testified that he was hungry since he had been arrested shortlybefore an intended supper meal out at a restaurant. Yet, a police officer testified that the appellant had been served a meal at the policestation at 6:20 p.m.[5] Moreover, in his testimony, the appellant stated that hunger had not been his primary motivation to make thestatement.[6] [8] The second ground of oppression is cold. The arrest and detention took place in July. The claim of excessive cold is thereforebased on the low temperature maintained in the holding cell through air conditioning.

Though it is quite possible the cell was cool thatevening, the short duration of the detention does not readily lead to the conclusion that the air conditioning was such as to constitute aform of oppression. The trial judge concluded there had been no oppression and there is nothing convincing in the evidence which wouldlead us to believe that he committed a palpable and overriding error in so finding. [9] This leaves the ground of appeal based on a promise. On the one hand, both police officers who participated in the interviewdenied making any promises to the appellant.

On the other hand, the appellant testified that the officers had promised to release hiscousin and not further investigate his relatives if he confessed.

The judge found, as a matter of fact, that the issue of the possession of thefirearm by other family members had been discussed during the interview, but that no promise had been made to the appellant, who,rather, had voluntarily admitted having been the one in possession of the items seized that day in order to avoid further inquiry into otherfamily members. [10] The trial judge concluded that there had been no quid pro quo such as to raise a reasonable doubt about whether the will of theappellant had been overborne in making the statement.

We find nothing conclusive in the record which would allow us to believe that thejudge erred in so finding. For these reasons, THE COURT: [11] DISMISSES the appeal. FRANCE THIBAULT, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. Mtre Ramy El-TurabyLAMONTAGNE, OSHRIYEH, EL-TURABY AVOCATSFor the appellant Mtre Mathieu LocasDIRECTOR OF CRIMINAL AND PENAL PROSECUTIONSFor the respondent Date of hearing: Appeal decided on the basis of the briefs alone without a hearing (s. 72 ofthe Rules of the Court of Appeal of Quebec in Criminal Matters).Date taken underadvisement: April 9, 2020