R. v. Jobe, 2016 NSSC 254

SUPREME COURT OF Nova Scotia Citation: R. v. Jobe , 2016 NSSC 254 Date: 2016-09-26 Docket: CRH No. 446890 Registry: Halifax Between: Her Majesty the Queen v. M’Bai Babou Jobe, Jordan Matthew Joyce, and Tyler Damian Kipper Library Heading Judge: The Honourable Justice James L. Chipman Heard: September 19 and 20, 2016, in Halifax, Nova Scotia Oral Decision: September 20, 2015 Written Decision: September 26, 2016 Subject: Admissibility of statements made to a person in authority

Summary: At the outset of what is scheduled to be a five-day judge alone trial, a voir dire was held to determine the admissibility of statements made by one of the accuseds, M’Bai Babou Jobe, to a person in authority. Issues: Has the Crown proved beyond a reasonable doubt whether Mr. Jobe’s statement was voluntary? Result: The Court found on a contextual inquiry that the Crown did not prove beyond a reasonable doubt that the statement was voluntary. In particular, the Court had concerns that Mr.

Jobe, who feared deportation, was left with the impression that his session with the police officer was his only chance to provide an explanation for his activities at the time in question. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Jobe , 2016 NSSC 254 Date: 2016-09-20 Docket: CRH No. 446890 Registry: Halifax Between: Her Majesty the Queen v. M’Bai Babou Jobe, Jordan Matthew Joyce, and Tyler Damian Kipper Judge: The Honourable Justice James L.

Chipman Heard: September 19 and 20, 2016, in Halifax, Nova Scotia Oral Decision: September 20, 2016

Counsel: Sean McCarroll, for the Provincial Crown Luke Craggs, for Mr. Jobe Eugene Tan, for Mr. Joyce Jonathan Hughes, for Mr. Kipper By the Court: Introduction [ 1 ] The three co-accused are charged as follows: That they on or about the 13th day of September, 2015 at, or near Halifax, in the County of Halifax in the Province of Nova Scotia, did unlawfully rob Zeresh Swing, contrary to

Section 344 of the Criminal Code . AND FURTHER that they at the same time and place aforesaid, did without lawful excuse point an imitation firearm at Zeresh Swing, contrary to Section 87(1) of the Criminal Code .

AND FURTHER that they at the same time and place aforesaid, did unlawfully have in their possession a weapon or imitation of a weapon, to wit., “an imitation firearm”, for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to Section 88(1) of the Criminal Code . [ 2 ] At the outset of what is scheduled to be a five-day judge alone trial, a voir dire was held to determine the admissibility of statements made by one of the accuseds, M’Bai Babou Jobe to a person in authority. [ 3 ] Following the September 19 voir dire and September 20 oral arguments, I rendered the following decision: On the basis of the evidence and law, it is my determination that the Crown has failed to meet its burden beyond a reasonable doubt that Mr.

Jobe’s statement was voluntary. Accordingly, the statement is hereby struck. Written reasons will follow. [ 4 ] Accordingly, I am now providing the within reasons. Background [ 5 ] The confessions rule provides that a statement or a confession made to a person in authority cannot be used as evidence unless it is first proved through a voir dire (trial within a trial) to have been voluntarily given. The parties agree, and I find, that the Crown bears the burden of proving beyond a reasonable doubt that Mr. Jobe’s statements were given voluntarily. [ 6 ] Mr.

Jobe was arrested during the early hours of Sunday, September 13, 2015. The arrest took place outside of an apartment on South Street and he was thereafter transported in the back of a police vehicle to the Halifax Regional Police station on Gottingen Street. Mr. Jobe was placed in an interview room and given an opportunity to privately consult with a lawyer. Cst. Grant Fiander’s evidence confirmed that Mr. Jobe spoke with a legal aid lawyer for roughly ten minutes. [ 7 ] Following his call with a legal aid lawyer, Mr. Jobe remained in custody at the police station.

At approximately 7:08 a.m. on September 13, D/Cst. Kurt Walsh began to interview Mr. Jobe. The interview concluded at 8:49 a.m. and, given that there were a couple of breaks, the entirety of the session was approximately an hour and a half. Evidence Reviewed [ 8 ] On the voir dire , the Crown called Sgt. Darrell Longely, D/Cst. Fiander and D/Cst. Walsh. Further, the Crown entered as exhibit VD-1, the audio/video recording of the interview that took place between Mr. Jobe and D/Cst. Walsh.

VD-1 was played in court (with key excerpts repeated as part of counsels’ questioning) and an 80-page certified transcript of the recording was provided as an aid to the Court. [ 9 ] The Defence called Mr. Jobe. Position of the Parties Crown [ 10 ] The Crown submits that the entirety of VD-1 be admitted as all of Mr. Jobe’s statements were voluntary. In their submission, there were no threats, inducements or promises made to the accused at the time the statements were elicited. They take the position that at all times Mr.

Jobe had an operating mind. [ 11 ] The Crown relies on the seminal Supreme Court of Canada authority of R. v. Oickle , 2000 SCC 38 , and emphasizes the following excerpt from para. 57 of Justice Iacobucci’s majority decision: In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few

suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.) , at p. 212, particularly apt: Very few confessions are inspired solely by remorse.

Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession.

In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. [ 12 ] The Crown says that when the entirety of the statement is reviewed, it cannot be said that there was a quid pro quo offered by D/Cst. Walsh to Mr. Jobe. Defence [ 13 ] The Defence readily acknowledges that D/Cst. Walsh did not engage in any police trickery. Further, Mr. Jobe admits he had an operating mind.

Rather, having regard to Oickle , the Defence submits that throughout the process there was a quid pro quo offer made by the person in authority. Governing Law [ 14 ] In Oickle , Justice Iacobucci, on behalf of five of six judges (Justice Arbour dissenting) confirmed that the confessions rule is concerned with voluntariness, broadly understood (see paras. 24-27). [ 15 ] In Oickle , the Supreme Court of Canada offered some helpful statements about what might constitute a threat or inducement (see paras. 53, 54, 56, 79 and 80).

At para. 80, Justice Iacobucci elaborated on the concept of quid pro quo as follows: To hold that the police officers’ frequent suggestions that things would be better if the respondent confessed amounted to an improper threat or inducement would be to engage in empty formalism. The tapes of the transcript clearly reveal that there could be no implied threat in these words. The respondent was never mistreated. Nor was there any implied promise. The police may have suggested possible benefits of confession, but there was never any insinuation of a quid pro quo .

I therefore respectfully disagree with the Court of Appeal that these comments undermined the confessions’ voluntariness. [ 16 ] More recently, in R v Rogers, 2014 SKQB 167 , Justice Chicoine extensively reviewed the caselaw on voluntariness (see paras. 151-159). In discussing threats or promises, the Court noted at para. 154: The first is “threats or promises”. The Ibrahim case ruled that statements would be inadmissible if they were the result of “fear of prejudice or hope of advantage”. An example of hope of advantage is the promise of leniency from the courts.

Another is the offer of psychiatric assistance or other counselling in exchange for a confession. However, even a statement like, “it would be better if you told the truth” should not automatically require exclusion as it depends on the entire context of the confession. At the end of the day, the police may often offer some kind of inducement to the suspect to obtain a confession to convince the suspect that it is in his or her best interest to confess. [ 17 ] Our Court of Appeal recently confirmed that consideration of the entire circumstances surrounding the statement in question in required. In R. v.

MacDonald-Pelerine , 2014 NSCA 6 , Justice Beveridge noted: [34] The leading decision on the common law requirement of proof of voluntariness of statements to persons in authority is R. v. Oickle , 2000 SCC 38 . Iacobucci J., writing for the majority, acknowledged that the contemporary confessions rule is broader than the core requirement that the Crown must establish beyond a reasonable doubt that a confession was not induced by threats or promises.

Admission of statements may also fail due to the involuntary nature of the putative statements if the authorities have engaged in unacceptable police trickery, oppressive conduct or the absence of an operating mind. [35] The Courts’ overriding concern is with voluntariness, but this overlaps with reliability, and extends to protecting the accused’s rights, and fairness of the criminal process. All relevant circumstances must be considered in a contextual inquiry of voluntariness (paras. 47, 69, 71). [Emphasis added] Contextual Inquiry of the Voluntariness of Mr.

Jobe’s Statement [ 18 ] When I scrutinize the statement along with the testimony of D/Cst. Walsh and Mr. Jobe on the voir dire , I come to the overriding conclusion that there was a tangible quid pro quo offered up to Mr. Jobe. In this regard, D/Cst. Walsh says on several occasions during the course of the interview that Mr. Jobe has “the most to lose out of all this”. This is said not only in the context of the two other suspects under arrest, but importantly, against the backdrop of the following: • Mr. Jobe having recently moved to Halifax;

• that Mr. Jobe has been in contact with the Halifax Refugee clinic; • that he was supposed to start a job in the coming week; • that for the previous six years he lived in Georgia; and • that before his time in the United States he was living in The Gambia. [ 19 ] During his direct examination, Mr. Jobe elaborated on his circumstances at the time of the interview. I found him to be entirely credible when he spoke of his fear of, among other things, deportation. As for D/Cst. Walsh, during his direct examination, he acknowledged that he had information from an individual from the refugee clinic in respect of Mr.

Jobe’s situation. [ 20 ] Given this backdrop, I am of the view that D/Cst. Walsh’s words early on in the interview, from the standpoint of Mr. Jobe, represented a threat or promise. In particular, I draw reference to the following exchange in the transcript at p. 15, lines 1-17: D/CST. WALSH : You’re here because there is a lot of evidence and, you know, we’re sitting here and we’re just trying to figure out – the reason I’m speaking to you first is because I – I think that you have the most to lose out of all this. MR. JOBE : Yeah. D/CST.

WALSH : And I’m not sure really how – how you got caught up in all this when – right? MR. JOBE : Um-hmm. D/CST. WALSH : I mean, so – and that’s why I decided to speak with you first, because – I’m not here to try to bullcrap you or anything like that. I know – I know you must have a lot to lose out of all of this. MR. JOBE : Yeah. D/CST. WALSH : Because – right? You’re trying to be a citizen here, you’ve got a new job, you got – right? And I’m just trying to figure out how this all happened. [Emphasis added] [ 21 ] The above exchange is all the more concerning when I consider the surrounding circumstances. Mr.

Jobe is not a Canadian citizen, albeit, he hopes to become one. Age 21 at the time, Mr. Jobe’s previous experience in the criminal justice system was as a youth, in the United States. Indeed, during his direct examination, he spoke of being questioned by police in Georgia. Not surprisingly given his status as a youth at the time, he was accompanied by a lawyer, throughout. [ 22 ] During the questioning, D/Cst. Walsh provided Mr. Jobe with background concerning the Canadian criminal justice system. For example, at p. 40, line 17 to p. 41, line 5, D/Cst. Walsh stated: D/CST. WALSH : Yeah.

So, listen, when I spoke with you earlier, you advised me you talked to a lawyer and you were satisfied with the advice you received from the lawyer, right? That’s how things work, is that you’ve been given the opportunity to speak to a lawyer, right? And you told me you were satisfied with the advice you received from the lawyer after speaking with him so, I mean, that’s how things work in the Canadian criminal justice system, right? It’s not – it’s not call a lawyer ten times while the police are trying to speak with you, trying to figure out what’s going on in a case. [ 23 ] Whereas I find D/Cst.

Walsh’s example in the above to be legally correct, I have concerns that in other areas of the interview his advice to Mr. Jobe strayed. For example, I draw on the below passages: D/CST. WALSH : Yeah. Well, that’s not how it works here, right? I – I appreciate, you know, you understanding that, you know, you spoke – the advice if your lawyer and you spoke with him and you understand, you know, your rights, not to speak and – but you’ve been given advice from your lawyer, right? And I respect the fact that you received that advice and – and you understood the advice.

But, unfortunately, this lawyer is not going to be there when you’re sitting in front of the judge that day, not having an opportunity to explain yourself, right? This guy you’ll probably never hear from again who you spoke with tonight on the phone. What they don’t tell you is they don’t – they don’t give you a chance to explain yourself when you’re in these situations. Explaining yourself sometimes gets you out of a lot of hot water, right? Sometimes good people do really bad things, right? And I think this is the case here.

But I don’t think you were the reason why you were going in that hotel room. ( Transcript, p. 34, line 7 to p. 35, line 3 ) … D/CST. WALSH : You are going to be charged. There’s – there’s no question about that, right? Like I told you, I’ve been a straight shooter since I’ve been in here. But when the judge looks at it and the – the prosecutor looks at it, the people who we consult with who run a case like this, they’ll say, “You know what? This guy is – is taking full responsibility for his actions during this incident.

These other guys haven’t take full responsibility for his – for their actions” Who – who do you think they’re going to be more lenient on, the person who has claimed responsibility for doing what they did or the people who are denying any involvement? How do you think it works? ( Transcript, p. 43, lines 10-22 ) [ 24 ] During cross examination, D/Cst. Walsh acknowledged that the above might be characterized as “loose language” on his part. In any event, when I conduct my contextual inquiry into the voluntariness of Mr. Jobe’s statement, I am especially concerned that Mr.

Jobe was left with the impression that the session with the police officer would have represented his only chance to provide an explanation of his activities on the early morning in question. This concern becomes heightened when I consider Mr. Jobe’s particular circumstances ( as outlined at para. 18) and his voir dire testimony to the effect that he thought he would not have another opportunity to

explain himself in the process. I would add that I found Mr. Jobe to be credible and reliable on this aspect of his testimony. [ 25 ] When I recall Justice Beveridge’s words that the question of voluntariness overlaps with reliability and extends to protecting the accused’s rights and fairness of the criminal process , I become extremely concerned about the police officer’s representations about the Canadian justice system and what the judge might or might not do.

This concern is further amplified when I consider the officer’s “loose language” could be interpreted as meaning the police would consult with the prosecutor and judge . [ 26 ] In the result, when I consider all of the facts, the law, and apply a contextual analysis, I come to the overwhelming conclusion that the Crown has failed to prove beyond a reasonable doubt that the statements were voluntary. Accordingly, Mr. Jobe’s statement of September 13, 2015 (exhibit VD-1) will be disregarded in the trial proper. Chipman, J.