R. v. Shamsuddin, 2017 NSSC 310

Supreme Court of Nova Scotia Citation: R. v. Shamsuddin , 2017 NSSC 310 Date: 2017-11-16 Docket: CRH No. 463212 Registry: Halifax Between: Her Majesty the Queen v. Dawood Shamsuddin Library Heading Restriction on Publication:

Section 486.4 Criminal Code Judge: The Honourable Justice Peter P. Rosinski Heard: November 14, 15, and 16, 2017, in Halifax, Nova Scotia Written Decision: December 13, 2017 Subject: Admissibility of statements to police officers (verbal utterances while detained, and videotaped interview once arrested) – in issue are voluntariness of the statements, as well as whether there were any breaches of

Section 7 (right to silence) and 10 of the Charter of Rights .

Summary: Mr. Shamsuddin was under investigative detention in relation to a sexual assault and made statements to police verbally at 7:19 a.m., 7:22 a.m., and shortly after arrest at 7:33 a.m. He also gave a videotaped formal statement to police between 6:17 p.m. – 8:04 p.m. Mr. Shamsuddin argued that his statements were not freely and voluntarily given. He argued that the police did not facilitate his rights to counsel access in a timely manner resulting in a breach of

Section 10 of the Charter . Issues:

(1) Were the statements freely and voluntarily given?

(2) Was there a breach of Mr. Shamsuddin’s right to silence, or the police obligation to facilitate his access with legal counsel? Result:

a) the first three statements were proved beyond a reasonable doubt to have been given freely and voluntarily, therefore the

Section 7 Charter issue, which was raised as a factual matter, does not involve a breach. There was no breach of

Section 10 Charter – the delay between Mr. Shamsuddin’s detention at his home and the opportunity to speak to counsel at the police station was reasonable given the circumstances.

b) The videotaped statement was not proved beyond a reasonable doubt to have been given freely and voluntarily. Mr. Shamsuddin was at the police station at 8:00 a.m., permitted to contact counsel, subjected to a forensic collection process, and then placed in cells at 10 a.m. until his interview commenced at 6:17 p.m. There was no agreement between counsel regarding whether any persons in authority had dealings with Mr. Shamsuddin during the intervening eight-hour period. The Crown presented no evidence to shed light upon the circumstances of Mr. Shamsuddin during that time- period.

The eight-hour time period required some explanation in these circumstances . Videotaped statement is inadmissible. 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. Shamsuddin , 2017 NSSC 310 Date: 2017-11-16 Docket: CRH No. 463212 Registry: Halifax

Between: Her Majesty the Queen v. Dawood Shamsuddin Restriction on Publication:

Section 486.4 Criminal Code Judge: The Honourable Justice Peter P. Rosinski Heard: November 14, 15, and 16, 2017, in Halifax, Nova Scotia Written Decision: December 13, 2017 Counsel: Emma Woodburn for the Crown Peter Planetta, for the Defence By the Court: Introduction: [ 1 ] Mr. Shamsuddin is charged with a sexual assault upon JB. The incident is alleged to have occurred, and was reported, on August 29, 2015.

His contact with police officers that day started at 6:30 a.m., and ended at 8:04 p.m. when he was placed back in cells awaiting an appearance in court the next day. [ 2 ] I conclude that he was under investigative detention in relation to sexual assault of JB at some point shortly before 7:19 a.m. He was arrested for sexual assault of JB at 7:30 a.m. [ 3 ] The Crown seeks to have four statements ruled admissible for trial: 1. Verbal utterance at 7:19 a.m. – when asked where the sex took place Mr. Shamsuddin said “on the [hide-away] bed in the living room”; 2. Verbal utterance at 7:22 a.m. – Mr.

Shamsuddin stated he did not have sex with JB; 3. Verbal utterance at 7:33 a.m. – “She wasn’t happy because I did not finish inside of her – there was semen on the sheets”; 4. A videotaped formal statement between 6:17 p.m. and 8:04 p.m. [ 4 ] The Crown says the statements were all made by Mr. Shamsuddin “freely and voluntarily” beyond a reasonable doubt- there is no Charter breach. Mr. Shamsuddin says the statements are all made in breach of his

Section 7 and 10 Charter of Rights and should properly be excluded pursuant to

Section 24 Charter of Rights – Moreover, the statements were not freely and voluntarily given by Mr. Shamsuddin. [ 5 ] The key questions for the court to determine are: 1. Has the Crown proven beyond reasonable doubt that the statements were made freely and voluntarily by Mr. Shamsuddin? 2. Has Mr. Shamsuddin proven it more likely than not that his

Section 7 or 10 Charter of Rights were violated, and if so, that the evidence of his statements to police should be excluded? My factual findings

[6] I heard from three police officers: Constable Oostveen, Constable Comer and Sgt. Hueston. Unless stated specificallyotherwise, I accept their evidence as honest and reliable. [7] In addition to my above-noted factual conclusions, their evidence also satisfies me as follows:

i) The morning of August 29, 2015 [8] Constable Oostveen and Constable Comer are partners. They received a call August 29, 2015 at 6:16 a.m. to attend at Mr.Shamsuddin’s Apartment 106 – 101 Nova Court, Dartmouth, Nova Scotia, regarding an alleged sexual assault on JB. They arrived thereat 6:30 a.m. Both had previously had contact with Mr. Shamsuddin in the past. In their opinions, Mr. Shamsuddin has a good commandof the English language, in spite of being originally from Afghanistan. Both officers were wearing their standard police uniform, vestsand sidearms, indicating they are Halifax Regional Police officers.

The apartment owned by Mr. Shamsuddin was a “bachelor”apartment – one room which was located on the first floor very close to the secure entryway. [9] Police knocked on the door and Mr. Shamsuddin answered. Also present in the apartment were JB, and a Mr. Gholami, afriend of Mr. Shamsuddin. The officers got some general understanding of JB’s allegation from JB and from Mr. Shamsuddin. Then Cst.Oostveen took JB out of the apartment down the hallway to further speak about her complaint. In a nutshell, she claimed that she hadcome to the apartment, and while there passed out as a result of intoxicating substances.

She woke during the night and upon going to thebathroom she reached for her tampon, and at that point observed ejaculate come out of her vagina. She believed somebody had hadsexual intercourse with her while she was not awake – i.e. without her consent. [10] At approximately 7:03 a.m., Cst. Oostveen advised both Mr. Shamsuddin and Mr. Gholami that they were under investigativedetention regarding an alleged sexual assault – both were properly advised of their Charter of Rights advisement and “right to silence”police caution.

Both understood these and declined to speak to duty counsel at that time. [11] The officers made arrangements for JB to be taken to a hospital for examination. They were concerned with: maintainingcontinuity of the alleged crime scene apartment; keeping an eye on Mr. Shamsuddin and Mr. Gholami; and ensuring that JB would berelatively promptly taken to the hospital. I infer that sometime before 7:19 a.m., JB was taken by other officers to the hospital. [12] Between 7:03 a.m. and 7:30 a.m., the constables continued to make further investigations, and specifically Cst. Comer spokewith Mr.

Gholami about what had taken place that night, and testified he had “a hard time believing him”. It appeared that some maleperson had had sexual intercourse with JB without her consent. It could have been Mr. Shamsuddin, Mr. Gholami, or both. [13] There was no evidence of inducements, promises, favours or threats present or future, made to Mr. Shamsuddin at any timebefore he made his verbal statements at 7:19 a.m. and 7:22 a.m.

There was no atmosphere of oppression; he had an operating mind; andthere were no police tricks or other factors which would bring into question that he freely and voluntarily made those statements. [14] At 7:30 a.m., the officers arrested both Mr. Shamsuddin and Mr. Gholami for sexual assault – both were given their right tocounsel advisement, right to silence caution, and secondary right to silence caution. Both understood these rights and wanted to speak tocounsel. [15] I find as a fact that Mr. Shamsuddin’ statement at 7:33 a.m. was made spontaneously, without prompting by Cst.

Oostveen,such that there was no opportunity for Cst. Oostveen to interrupt him. There was no violation of the “hold off” from questioningobligation. Cst. Oostveen accurately recounted what Mr. Shamsuddin stated. On consideration of the relevant factors, I conclude thatstatement was made freely and voluntarily beyond a reasonable doubt - R. v. Risby, (SCC), [1978] 2 S.C.R. 139. [16] At 7:46 a.m., Constable Arsenault arrived to take control of the crime scene. Only at this point were Cst. Oostveen and Cst.Comer able to leave with Mr. Shamsuddin and Mr. Gholami in the police van.

After the 15 to 20 minute drive directly to the HRPheadquarters in downtown Halifax, both Mr. Shamsuddin and Gholami were given an opportunity to contact duty counsel at or about8:03 a.m. [17] I find as a fact that the interval between arrest at 7:30 a.m. and contact with duty counsel at 8:03 a.m. was reasonable in all thecircumstances. Upon their request to speak to counsel, the officers were under a duty to facilitate their access to counsel, and hold off anyfurther questioning until they had a reasonable opportunity to exercise their right to counsel - see R. v. Taylor, 2014 SCC 50 paras. 21 –26; R. v.

Patrick, 2017 BCCA 57, at paras. 109-116. They did hold off as required. Mr. Shamsuddin spoke to duty counsel for at least 10minutes – Cst. Oostveen also informed duty counsel of the nature of the allegation facing Mr. Shamsuddin. [18] It was reasonable for police to wait to get to the police station for reasons of officer safety; lack of a secure private telephonelocation and resource where private lawyers numbers were available, and duty counsel could call back a detainee. Both Mr. Shamsuddinand Mr.

Gholami were noted to be intoxicated, and it was appropriate to ensure they were both formally processed [booked] at the policestation as soon as possible.—see e.g. R. v. Keror, 2017 ABCA 273, at para. 30. [19] I find no evidence of any inducements, whether threats or promises, express or implied to Mr. Shamsuddin by police officers atany time prior to 8:03 a.m. [20] After Mr. Shamsuddin spoke to duty counsel, for approximately 15 to 20 minutes, he was subjected to a forensic evidencecollection effort by Constable Wasson, in the presence of Cst. Oostveen – sometime between 9:00 and 10:00 a.m.

This effort includedobtaining a penile swab, as well as seizure of his clothing. Cst. Oostveen briefed the investigator Constable Bridget Cross at about 9:49a.m. Shortly after 10:00 a.m., Mr. Shamsuddin was placed in cell number 17 within the building. [21] In

summary, I find that Mr. Shamsuddin’s statements at 7:19, 7:22 and 7:33 a.m. were made freely and voluntarily beyond areasonable doubt, and there were no breaches of his Charter of Rights protections before he made any of those statements. They areadmissible.

ii) Between 10:00 a.m. and 8:04 p.m. - August 29, 2015 [22] I am satisfied beyond a reasonable doubt that Mr. Shamsuddin had an operating mind throughout the day up to and including8:04 p.m. [23] Statements by persons detained or arrested made to persons in authority are presumptively inadmissible, unless and until theCrown proves beyond a reasonable doubt that they were made freely and voluntarily - R. v. Oickle, 2000 SCC 38 , [2000] 2S.C.R. 3, paras. 47-67. The relevant factors are generally grouped as – threats or promises; an atmosphere of oppression; lack of “anoperating mind”; and police trickery.

The latter factor requires a distinct inquiry to be made by the court; however the former threefactors can be considered together. Ultimately, to be admissible, such statements must be freely and voluntarily given. [24] In relation to determining whether a statement is freely and voluntarily given, Justice Iaccobucci stated for the court in Oickle,at para 47: … The application of the rule will by necessity be contextual.

Hard and fast rules simply cannot account for the variety of circumstancesthat vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over and under-inclusive. A trialjudge should therefore consider all the relevant factors when reviewing a confession.” [See also in particular paragraph 71] [25] Moreover, Justice Iaccobucci further elaborated at para. 42: From this discussion, several themes emerge. One is the need to be sensitive to the particularities of the individual suspect.

For example,White, supra, at page 120 notes the following: False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especiallyvulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rareinstances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of theinterrogation.

And indeed, this is consistent with the reasons of Rand J. in Fitton, supra at pg. 962: The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversations, allcall for delicacy in appreciation of the part they have played behind the admission, and to enable a court to decide whether what was saidwas freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them. [26] Based on his years of experience as a breathalyzer technician, Cst.

Oostveen testified that when he had dealings with Mr.Shamsuddin at 6:30 – 7:00 a.m., Mr. Shamsuddin was, in his opinion, “impaired” by alcohol and/or drugs. [27] Mr. Shamsuddin was prescribed a medication for anxiety and depression. He was without his daily dosage between 6:30 a.m.and 8:04 p.m. [28] He appeared to be rather quick to respond to police questions given the serious circumstances he was facing. [29] More importantly, the court has absolutely no evidence about the circumstances of Mr. Shamsuddin while in custody between10:00 a.m. and 6:17 p.m. that day.

He was placed in cells and then re-emerged eight hours later. What effect does this have on the court’sability to make a decision as to whether Mr. Shamsuddin’s videotaped statement given between 6:17 p.m. and 8:04 p.m. was freely andvoluntarily made? [30] Did he request the medication while in cells? He did reference it in the beginning of his videotaped interview, and ConstableHueston arranged for EHS personnel to examine him. Did he request and receive food and water? [31] Was he offered, or did he request, further contact with legal counsel, either before or after the penile swab was taken, orotherwise?

I note that the state of the law regarding the authority for taking penile swabs was unresolved until the Supreme Court ofCanada decision June 23, 2016: R. v. Saeed, 2016 SCC 24. Such penile swabs are a form of search and seizure – they must be taken in areasonable manner ensuring the health, safety and privacy of the detainee. Moreover although Constable Oostveen testified he waspresent when Cst. Wasson took Mr. Shamsuddin’s clothing and a penile swab from him, there was no evidence about what if anythingwas said to, or by, Mr. Shamsuddin during this 10 to 15 minute process between 9:00 a.m. and 10:00 a.m.

There is no satisfactory explanation for the Crown failing to call as witnesses all persons in authority who reasonably may havebeen in the position to influence Mr. Shamsuddin’s decision not to remain silent. [32] The Crown argues that there must be some evidence that would raise a concern, before this court concludes that the statementwas not be freely and voluntarily given: for example, there must be shown to be some meaningful contact by a person in authority withMr. Shamsuddin. Here, it says there is no evidence that raises such concern.

In its supplemental letter filed today, the Crown cited as authority R. v. Smith, (1986) (NS CA), 71 NSR (2nd) 229 (CA); and Socobasin, infra. [33] The defence counters that the jurisprudence places the obligation upon the Crown to present evidence about significant gaps intime while Mr. Shamsuddin is under the control of the State, when necessarily having contact with persons in authority: 1. R. v. Williams, 2013 ONSC 1399, particularly paras. 76 – 86; 2. R. v. Holmes, (ON CA), [2002] O.J.

No. 4178 (CA) leave to appeal refused [2003] SCCA No. 4. [34] In my own research, I have discovered the following helpful further authorities:

1. R. v. Socobasin, 1996 NSCA 201 , [1996] NSJ No 387 (CA); Lv to appeal refused [1996] SCCA No. 628; 2. R. v. Brown, 2015 ONSC 2092; 3. R. v. McIntyre, 2015 ABQB 589; 4. R. v. Wilkinson, 2013 SKCA 46; 5. R. v. Letendre, 2017 SKCA 99, at paras 8-9. [35] In Nova Scotia, the binding authority is Socobasin.

Therein, Justice Hallett stated for the court: 68 The third issue relates to the failure of the Crown to call as witnesses, on the voir dire to determine the voluntariness of theappellant's statement, certain persons in authority in the United States of America which persons were in contact with the appellant over asix day period while he was either in custody in a U.S. jail, in court in the U.S. or being transported between the court and jail prior tobeing handed over to Canadian authorities.

In his ruling at the conclusion of the voir dire, the trial judge stated that "all the persons inauthority that were directly or indirectly connected with this statement" were called by the Crown. 69 The appellant asserts that the Crown failed to comply with the letter or spirit of the rule enunciated by this Court in R. v.Hatfield (1984), (NS CA), 62 N.S.R. (2d) 151 and restated in R. v.

G.A.J. (1993), (NS CA), 120N.S.R. (2d) 432 (N.S.C.A.). 70 In Hatfield it was stated that "the ordinary rule regarding all persons in authority who have contact with the accusedperson while in custody prior to the taking of his statement must be called.” 71 In the subsequent decision in G.A.J. this Court recognized that this rule is not absolute and excluded from the duty of theCrown respecting the calling of witnesses on the issue, "a person who simply receives and passes the fact of a telephone callunless that person had evidence that bears upon the voluntariness of the statement of the appellant or his understanding of orthe exercise of his constitutional right". 72 The question boils down to this: was the Crown obliged to call all U.S police, sheriff's officers and corrections officers that hadbeen in contact with the appellant while he was in the United States and prior to being delivered to the Canadian authorities? 73 I agree with the views expressed by the Manitoba Court of Appeal in R. v.

Garfield (1974), (CMAC), 21 C.C.C.(2d) 449 where the court stated at p. 457: "The appellant's position, as it seems to me, is that the prosecution is obliged to call, or to tender, every witness who had anythingto do with an accused who makes a confession, from the moment of his first contact with the police until the statement has beengiven. In my opinion, the proposition, stated in those terms, is too broad." (For a similar expression of opinions see also R. v. Settee (1974), (SK CA), 22 C.C.C. (2d) 193, pp. 206-207 (Sask.C.A.)). 74 I also agree with the views expressed by Borins C.C.J. in R. v.

Dinardo (1981), (ON SC), 61 C.C.C. (2d)52 where he stated that if a person in authority is sufficiently remote from the taking of statements, it is not necessary that thatperson testify upon the voir dire as to the voluntariness of the statement. 75 It is not an absolute rule that every person in authority irrespective of the degree of contact with an accused need be calledon a voir dire. Each case turns on its own facts.

Only persons who have evidence that bears upon the voluntariness of thestatement of the appellant need to be called. 76 Counsel for the appellant submits that the decision of the trial judge that all persons directly and indirectly connected with thestatement were called was based on an absence of evidence as there is no evidence as to who may have been in contact with the appellantwhile he was housed in different jails in the State of Maine during the period of September 8th to September 15th.

The evidence showsthat Corrections Officers in these institutions were not called as witnesses on the voir dire nor was evidence tendered to explain why theywere not called. 77 The issue before the trial judge on the voir dire was to be satisfied beyond a reasonable doubt that the statement made by theappellant to the RCMP was voluntary within the meaning of the rule established in Ibraham v.

The King [1914] A.C. 599 where theCourt stated: "It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence againsthim unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either byfear of prejudice or hope of advantage exercised or held out by a person in authority." This statement of the rule has been consistently approved and adopted by Canadian courts. 78 The trial judge must look at the circumstances and determine whether the Crown called as a witness on the voir dire everyperson in authority likely to have been in a position to influence the giving of the statement by the accused and, if not, was thatperson's absence from testifying explained satisfactorily. … 80 Counsel for the Crown asserts that a court can take judicial notice of the fact that it is the police that investigate crimes andthat Corrections officials do not.

While this generally accords with the practice of the respective officials I do not know that it is a

matter that the court can take judicial notice of, but that is not fatal to the position taken by the Crown. The Crown on a voir dire toprove the voluntariness of the statement must prove beyond a reasonable doubt that the statement was voluntary; nothing more andnothing less. … 108 It is possible that some Corrections Officer or other person in authority may have made a threat or promise to the appellant whilehoused in either the Hancock Jail or Lewiston Jail but there is no evidence on the point.

The burden is on the Crown to prove beyond areasonable doubt that the statement given to the RCMP on September 15th was voluntary in accordance with the Ibraham rule. Thequestion that must be asked is how far does the Crown have to go to meet this burden so as to have the statement admitted attrial. Based on the case law, the Crown must call or explain the failure to call all persons in authority who reasonably may havebeen in the position to influence the accused by threats or promises to give a statement. The facts of a particular case will dictatehow far the Crown must go.

It is abundantly clear that RCMP officers Foran and Brown emphasized to the appellant that he did nothave to give a statement and that they could not make any promises to him. None of the U.S. Corrections Officers were in a positionto make any promises to him nor is there any reason why they would threaten him that if he did not make a statement it couldact to his prejudice. In his waiver signed at the time of the extradition hearing he stated that no threats or promises had beenmade to him by U.S. officials.

This was a crime committed in Canada and the role of U.S. persons in authority was remote fromthe investigation and prosecution of the appellant. The appellant did not testify on the voir dire.

In the absence of any evidencefrom the appellant that he had been threatened or promises made to him by U.S. persons in authority which he subjectivelybelieved would come to fruition if he did not make a statement, there is no reason, considering all the other evidence, particularlythe evidence of RCMP Officers Foran and Brown, to conclude that the trial judge erred in ruling that the Crown had met theburden of proving beyond a reasonable doubt that the statement was voluntary. 109 The U.S. persons in authority were not involved in the investigation.

The statement of the appellant was not given until theappellant was in Canada after having been turned over to Canadian authorities. The trial judge found that all persons who weredirectly or indirectly connected with the statement were called as witnesses on the voir dire. On the facts of this case the possibilitythat some person in authority in the U.S. may have induced him to give a statement does not give rise to a reasonable doubt that thestatement given to the R.C.M.P. was voluntary.

It is clear from the record that the Canadian authorities, to whom the appellant gave hisstatement, time and time again advised him of his Charter right to contact a lawyer, his right as a young offender to contact a parent orother person and his right not to make any statement. Despite these cautions and advice the appellant wanted to talk.

The officersdescribed the appellant as cocky and self-assured. 110 In my opinion the trial judge did not err in ruling the statement voluntary and, therefore, admissible without hearing theevidence of the U.S. custodial authorities unconnected with the investigation or the taking of the statement. [emphasis added] [36] I find persuasive as well the reasons of the Ontario Court of Appeal in Holmes, per Rosenberg JA: 20 The right to counsel and the voluntariness rule are complementary but are not co-extensive.

As McLachlin J. held in R. v.Hebert (1990), (SCC), 57 C.C.C. (3d) 1 (S.C.C.) at 35, the state is obliged to allow the suspect to make an informedchoice whether to speak to the police. To assist the suspect in making that choice, the suspect is given the right to counsel. Proof thatthe suspect exercised the right to counsel as guaranteed under s. 10(

b) of the Charter of Rights and Freedoms is not, however, aproxy for proof of voluntariness. The trial judge must have regard to all of the circumstances when determining the voluntariness of astatement. The fact that the suspect was able to consult with a lawyer is simply one, albeit important, circumstance. As IacobucciJ. said in R. v. Oickle, at para. 31: [I]t would be a mistake to confuse [the common law confession rule] with the protections given by the Charter.

While obviously it maybe appropriate, as in Hebert, supra, to interpret one in light of the other, it would be a mistake to assume one subsumes the other entirely. … 29 Here, the prosecution adduced no evidence of a 16-hour period during which the appellant was in police custody. I do not see howthe trial judge could "understand the circumstances surrounding the confession" without coming to grips with the impact of that gap inthe evidence.

As I have said, relying solely upon the fact that the appellant consulted counsel could not be a complete answer. [emphasis added] [37] To similar effect, Justice Caldwell stated for the court in R. v. Wilkinson, 2013 SKCA 46: 12 Here, at the core of the decision, the trial judge concluded the Crown had failed to discharge the onus of establishing a sufficientrecord of the interaction between the police and Mr. Wilkinson so as to eliminate any reasonable doubt as to the voluntariness of thestatement.

True, the judge said the Crown had not called or made available all of the police officers who had had contact with Mr.Wilkinson from his arrest to the taking of the statement (some 17 1/2 hours), but, in doing so, the trial judge was particularly pointing totwo clear gaps in the evidence adduced by the Crown:

(1) Sergeant Kennedy, who had transported Mr. Wilkinson from the place of hisarrest to the police station, was not called to testify; and (2) there was simply no evidence as to how Mr. Wilkinson had come to callLegal Aid or who had facilitated that call for Mr. Wilkinson and, particularly, there was necessarily then no evidence as to what had beensaid by persons in authority to Mr. Wilkinson during this interaction. In fact, the Crown did not even know the name of the policeofficer(

s) who had facilitated Mr. Wilkinson's call to Legal Aid. 13 The completeness, accuracy and reliability of the record of an accused's interactions with the police are inextricably tied toa trial judge's inquiry into and scrutiny of the circumstances surrounding the taking of a statement. Here, the Crown adduced noevidence of a 17 1/2 hour delay between the arrest and the taking of the statement during which time Mr. Wilkinson was in policecustody and, more importantly, during which time the police clearly had some significant interaction with him. I do not see how the trial

judge could come to "understand the circumstances surrounding the taking of the [statement]" (Oickle) in the face of thatsignificant gap in the evidence. In the circumstances, the Crown itself could not have made an assessment of the relevance or probativevalue of that unavailable evidence.

And, given the nature of proof beyond a reasonable doubt and the fact that proof ofvoluntariness lies with the Crown, the judge could not be expected to give the benefit of the reasonable doubt arising from theclear gaps in the evidentiary record to the Crown. 14 In the result, I find no error in the trial judge's conclusion that the Crown had not met its burden of proof as to the voluntariness ofMr. Wilkinson's statement or in the judge's decision to exclude the statement from evidence.

I would, therefore, dismiss the appeal. [emphasis added] [38] Each case must be decided on its own unique facts. [39] In Smith and Socobasin, our Court of Appeal rejected the defendant’s argument that the failure to call police officers from FortSt.

John, British Columbia, and the United States of America respectively, undermined the trial judge’s finding of proof beyond areasonable doubt that the statements had been given freely and voluntarily. [40] In those two cases, the persons in authority were too remotely connected to the statement-taking to realistically be consideredto be in a position to influence a detainee’s decision to make an utterance or statement to police – see, for example, paras. 76 – 77, R. v.Williams, 2013 ONSC 1399. [41] In the case at bar, Mr.

Shamsuddin was in the custody of the Halifax Regional Police between 10:00 a.m. and 6:15 p.m.,without any evidence of the circumstances of his detention being presented to the court. [42] I understand that I must be careful not to conflate, reasonable inferences that may be drawn from the evidence, and speculation. [43] However, what we have here is different. Mr. Shamsuddin was in the control and custody of the police.

He must have hadcontact with Halifax Regional Police personnel throughout that time period-whether they were responsible for the cells area, or policeofficers, or otherwise employed by the police-each is conceivably “a person in authority”. In R. v. Hodgson, (SCC),[1998] 2 S.C.R. 449, Justice Cory found that “the person in authority requirement is properly seen as an integral component of theconfessions rule” because it is “the nature of the authority exerted by the State that might prompt an involuntary statement”.

That courtheld that a person in authority “typically refers to those persons formally engaged in the arrest, detention, examination or prosecution ofthe accused” [para. 32] and that the proper inquiry should be based upon the accused’s reasonably held “perception of the receiver’sinvolvement with the investigation or prosecution of the crime. [para. 35]… [and focus on] the ability of the receiver of the statement toinfluence the prosecution of investigation of the crime” [para. 36].

At para. 36, Justice Cory states: 36 The important factor to note in all of these cases is that there is no catalogue of persons, beyond a peace officer or prison guard,who are automatically considered a person in authority solely by virtue of their status. [emphasis added] [44] The Crown has the evidentiary burden to establish that during that time Mr. Shamsuddin was in custody and control of thepolice that there is proof beyond a reasonable doubt that – he had an operating mind; that there were no inducements (threats or promisesthat overbore his free will), held out to Mr.

Shamsuddin as a quid pro quo for him to make a statement; there was no atmosphere ofoppression; nor proof that there was some other residual factual matrix which might create a reasonable doubt about the voluntariness ofa statement. [45] It must be borne in mind that ordinary facts are to be proved on a balance of probabilities standard in criminal cases. Notablythere is an evidential burden on the accused to establish the “person in authority” status – Hodgson, para. 37. However, the voluntarinessof an accused person’s statements to persons in authority must be proved beyond a reasonable doubt.

That is so because the unique natureof such statements makes them potentially determinative evidence of the guilt of an accused [Hodgson, paras. 14 and 18 and R. v. Arp (SCC), [1998] 3 S.C.R. 339, at para. 71]. [46] Therefore, just as with the essential elements of any criminal offence, during the admissibility hearing, a reasonable doubtabout the voluntariness of an accused’s statement to police may arise from the evidence, or the absence of evidence. This is similar towhat Justice Cromwell stated in R. v. Villaroman, 2016 SCC 33, regarding proof of the essential elements of an offence.

In discussingcircumstantial evidence that can lead to inferences consistent with innocence (i.e. a reasonable doubt exists), he noted that they do nothave to arise from proven facts, but may also arise from an absence of evidence. [47] I infer that Mr. Shamsuddin had dealings with police officers or staff of the Halifax Regional Police between 10:00 a.m. and6:15 p.m. on August 29, 2015. That eight hour period included a lunchtime and possibly suppertime meal. I infer that Mr.

Shamsuddinwas concerned about his anxiety medication, and likely would have raised this concern during that time. [48] This time period immediately preceded the giving of his statement to Cst. Hueston, beginning at 6:17 p.m. Persons in authorityhad the opportunity to have material contact with Mr. Shamsuddin, which “possibility” was not so remote in time or location, that itcould not conceivably have influenced his decision whether or not to maintain his right to silence. [49] In these circumstances, that time period requires some explanation.

In the absence of any evidence about that time period, I amleft unsure whether during that time a person in authority had material contact with Mr. Shamsuddin, and whether that contact may haveoverbore his will, involved a quid pro quo, or otherwise undermined his right to silence. I am unsure whether his statement between 6:17p.m. and 8:04 p.m. was freely and voluntarily given beyond a reasonable doubt. [50] While I do not mean to imply that anything that would compromise the voluntariness of Mr.

Shamsuddin a statement did occurbetween 10:00 a.m. and 6:15 p.m., I am not satisfied beyond a reasonable doubt that his statement was freely and voluntarily given.

Therefore, it is not admissible. Conclusion [ 51 ] Mr. Shamsuddin’s statements given at 7:19, 7:22 and 7:33 a.m. on August 29, 2015, are admissible at his trial. His videotaped statement between 6:15 and 8:04 p.m. on August 29, 2015, is not admissible. Rosinski, J.