Silence is appropriate if you are guilty of a serious crime.

If you are arrested for a serious crime that you really committed and are being interrogated by the police, it is best that you remain silent.  What you say, can be used against you.  This case I am writing about in this article is proof of my previous statement.                                                   

Before I take you to that particular case, I will tell you about another case in which the defendant during his trial should have kept his mouth shut.

 He was on trial for robbing a mom and pop grocery store. The owner was testifying against the robber and he said, “I recognized the defendant….”

The defendant who was sitting next to his lawyer suddenly stood up and interrupted the witness’s testimony by yelling, “That’s a lie. You couldn’t have recognized me because I had a pillow case covering my face!” 

The irony in that case was that the witness wasn’t going to say that he recognized the defendant’s face. He was going to say that he recognized his voice. That evidence by itself wouldn’t have been sufficient enough to convict the defendant and he would have walked out of the court room as a free man.  And now the case that is the subject of this article.

On June 17, Fouad Nayel was expected to meet his father for Father’s Day.  It was a Sunday. He never showed up.  He also missed work the next day and on June 19, his family filed a missing person’s report.  His son’s remains were found six months later in a remote wooded area near Calabogie, Ontario 81 km (44 miles) west of Ottawa.

Nayel’s father had previously been able to obtain some cellphone records for his son’s phone and there were several people that Nayel had called that fateful morning, including Adam Picard.

 On June 19, 2012, Cst. Rebecca Vanderwater was working in the missing persons section of the Ottawa Police Service.  On that day, she was tasked with investigating the disappearance of Fouad Nayel.  This case was not her first missing person’s case, but it was the first that resulted in criminal charges being laid against a suspect.

Her first step was to contact family members and she spoke with Nayel’s parents.  They said it was out of character for Nayel to be out of contact with his family.  They advised her that they had obtained some cellphone records.  Nayel’s father also told Vanderwater that he believed Nayel had been in the process of arranging a large drug deal and that Nayel’s phone had been turned off since the day he disappeared.

Nayel’s cousin, Adam Mounzer, confirmed to Vanderwater that Nayel had been organizing a large drug deal.  In addition, Mounzer told Vanderwater that he had spoken to Nayel early on the Sunday morning and Nayel had said he was on his way to Petawawa, Ontario.

The cellphone records indicated that an outgoing call had been made at 11:07 a.m. on June 17, to a number that was registered to Adam Picard.  It was the last outgoing call made on Nayel’s phone.

Vanderwater called Picard at 2:30 p.m. on June 19 and spoke with him for 12 minutes.  She called him again shortly after the first call when she realized she had forgotten to ask for contact information for one of the people that Picard had mentioned in her previous call to Picard. She could not reach Picard and left a message.  She did not make any notes of what she said in her message.  Some 20 minutes after that, Picard called Vanderwater, but she was unavailable and he left a message.  Again there are no notes of what Picard said in his message.  Finally, later that evening, Vanderwater succeeded in reaching Picard and spoke to him for four minutes.

Vanderwater took notes of the first conversation she had with Picard.  She testified that her notes were a summary of what was said. She did not take notes of any of the questions she asked and had no present memory of any questions she asked.  That was stupid on her part. On the other hand, she said the objective of the call was to learn what the connection was between Picard and Nayel and the purpose of their June 17 call.  Any questions she asked were to further these objectives.  At the time of her calling Picard, Vanderwater had not checked his name on the police internal database.  That was also stupid on her part. She also did not know Picard personally so she knew nothing about this man’s background.

Picard said he had spoken to Nayel at 11 a.m., on June 17.  Earlier that day, they had arranged via text message to go out to drive their all-terrain-vehicles.  Picard’s brother had originally planned to go with him, but his brother cancelled at the last minute so Picard called Nayel to invite him to go with him instead.  Nayel initially agreed and they were supposed to meet at 10:45 a.m., but Nayel texted Picard that he was running late.  Picard went to the Loblaws at 11 a.m.  Nayel then called him and cancelled. Picard said he did not see Nayel that day and had not heard from him since.  Picard also said Nayel did not mention to him that he was going to Petawawa.

  Vanderwater testified in court that she had asked Picard how he came to know Nayel and Picard told her that they had met through his cousin.  Vanderwater failed to get Picard’s cousin’s contact information during the call and therefore decided to speak to Picard again.  When she reached Picard the second time, Vanderwater went over the earlier information  Picard  had provided and made some corrections.  She also obtained the cousin’s contact information.  Instead of writing a separate set of notes for this second call, Vanderwater added the new information to her original set of notes.

Vanderwater testified there was limited new information received during the second call, but she agreed in cross-examination that apart from certain specific items of information, she cannot be sure what information was received in the first conversation versus the second conversation.

On June 26, 2012, Sgt. Wayne Niemi interviewed Picard on June 26, 2012 at the police station.  The interview was videotaped.

Prior to asking Picard to come to the police station for an interview, Det. Niemi spoke to Picard on the phone.  Det. Niemi was uncertain of the exact date he spoke to Picard and he had no notes of the conversation. That was another cop who was also stupid at that particular time.  However, he recalled  that Picard told him that he and Nayel had exchanged text messages on that Sunday and he read those messages to Det. Niemi.  Det. Niemi asked Picard to save the text messages and also to come into the station for an interview.  Det. Niemi believed he offered Picard several possible dates and times and Picard chose June 26 in the morning. Det. Niemi did not have any notes indicating specifically how the interview was arranged.

 At the time of requesting the interview with Picard, Sgt. Niemi indicated that he knew the following:

•         It was out of character for Nayel to not show up at his father’s home for Father’s day;

•         Nayel loved his father and had planned to take him out for Chinese food;

•         In addition, that day was the wake for Nayel’s deceased uncle and again it was not like him not to attend;

•         Picard was one of the last people to speak to Nayel;

•         Police had received information that Nayel was a small-time marijuana dealer and it appeared that Nayel had been organizing a major drug deal;

•         Nayel’s father had given Det. Niemi some paper with notes in Nayel’s handwriting.  On one piece of paper was Picard’s name and cellphone number; and

•         Det. Niemi did not think ‘anything good’ had happened to Nayel, but at that time, police did not have any grounds to believe that a criminal offence had been committed.

Picard came to the station on June 26, 2012 at 11:40 a.m.  Det. Niemi met Picard in the lobby of the station.  Although he was not sure, Det. Niemi believed that he was elsewhere in the station when Picard arrived and that he was paged to go to the lobby to meet him. It was admitted by defence that in the ten minutes between Picard’s arrival and when he met Det. Niemi, there was no conversation with any other police officer that could impact on the voluntariness of the statement. During the walk to the interview room, Det. Niemi stated he did not say anything to Picard.  He testified that he did not threaten, promise or say anything to induce Picard to speak to him.  Det. Niemi said that Picard was calm throughout his dealings with him that day.

Before the videotaped statement started, Picard was placed under oath.  The commissioner for oaths told Picard that anything said in the interview or earlier could be used in laying criminal charges.

The content of this interview was similar to the information Picard provided to Vanderwater in her telephone conversation with him.

Det. Niemi testified that Picard was never told he did not have to speak to police.  Nor was he warned that anything anyone had said to him previously should not influence him in speaking to the police on this occasion.  Picard was not asked if he wanted to speak to a lawyer because according to Det. Niemi, Picard was not a suspect and he would only caution someone who was a suspect.

The detective was supposed to give Picard the official warning and for some reason, he chose not to give the warning.

Det. Niemi stated that Picard could have left at any time during the course of the interview.  However, he conceded on cross-examination that there was only one door into the interview room and that Picard was never specifically informed that he could leave if he wished.

At the end of the interview and off camera, Det. Niemi asked Picard to sign a release of cellphone information.  He had intended to seize Picard’s cellphone.  However, Picard showed him the series of text messages that he and Nayel had exchanged on the day Nayel disappeared. Det. Niemi came to the conclusion that Picard had had no involvement in Nayel’s disappearance and therefore decided not to seize the cellphone.

Under cross-examination in court, Det. Niemi agreed that the day before the interview with Picard, he had been assigned a sergeant from the Major Crime Unit to assist in the investigation.  He denied that this was done because police had concluded that a murder had occurred.  Rather he indicated that at some point in time during the course of the investigation into Nayel’s disappearance, he came to the conclusion that Nayel was probably dead.

Position of the parties in court

The Defence had argued at trial that the Crown has failed to prove beyond a reasonable doubt that the two statements were voluntary.  (the statements made by Picard to Det. Nieme) He stated that the record pertaining to both statements is lacking to the point where it is not possible for the court to make any determination of voluntariness.  Additionally, The Defence contended that Picard was a suspect in the investigation and ought to have been cautioned and given an opportunity to contact counsel before making either statement.

Legal Principles

The concept of voluntariness is defined to address both reliability and fairness concerns, and in particular, the need to treat accused persons fairly by not allowing coercive state tactics.  On the other hand, this rule also seeks to balance the protection of an accused’s rights with society’s need to investigate and solve crimes.

Another animating principle of the confessions rule is the Charter enshrined right of an accused to remain silent.  As noted in the decision in  R. v. Singh which is stated in the next paragraph.

“Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era.  Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination.”

 In R. v. Oickle, the Supreme Court of Canada outlined what is now the primary test on the issue of voluntariness.  This test reflects a change of focus away from the historical emphasis on reliability to the more modern focus on the suspect’s right to freely choose whether to speak to police.

Oickle defined four criteria that the Crown must prove:

1.                  No promises, threats or inducements;

2.                  That the accused possessed an operating mind;

3.                  No oppressive atmosphere; and

4.                  No other police trickery.

Voluntariness of an accused’s statement to authorities must be proved beyond a reasonable doubt. The determination of voluntariness is contextual, requiring the trier of fact to examine the surrounding circumstances of police exchanges with the accused.

Completeness of the Record

Police are obliged to record the circumstances of interactions leading up to the statement and the absence of a proper record could lead to adverse inferences.  While verbatim, electronic recordings of actual statements are preferred, summaries cannot be discounted. Once it is established that the exchange was voluntary, the adequacy of the record goes to weight, not admissibility.

In R. v Moore-McFarlane, the Ontario Court of Appeal ruled that the police are not obligated to record statements. Assessing the voluntariness of such is contextual but the “Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police.”

For instance if facilities for recording were available to the authorities when speaking with the suspect but are not used, then the circumstances surrounding the  statement  may become suspect. (In this case I am writing about, Picard’s statement was vid

Completeness of the Record

Police are obliged to record the circumstances of interactions leading up to the statement and the absence of a proper record could lead to adverse inferences.  While verbatim, electronic recordings of actual statements are preferred, summaries cannot be discounted. Once it is established that the exchange was voluntary, the adequacy of the record goes to weight, not admissibility.

In R. v Moore-McFarlane, the Ontario Court of Appeal ruled that the police are not obligated to record statements. Assessing the voluntariness of such is contextual but the “Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police.”

For instance if facilities for recording were available to the authorities when speaking with the suspect but are not used, then the circumstances surrounding the  statement  may become suspect.

Summaries of what an accused said are acceptable where the overall context shows the substance of police interactions and the trier-of-fact has assessed the officer in question as credible.

There are numerous factors that the Court can consider in determining whether the accuracy of the record is sufficient for the Court to determine voluntariness.  They are:

•         Material gaps in voir dire evidence about what happened or what was said during interrogation.

•         Where police have technological facilities available to make recordings but fail to do so.

•         Where police rely on after the fact summaries, instead attempting to make verbatim notes as soon as possible

•         Police initiated interviews/questioning where the suspect is likely to make inculpatory statements.

•         Where police had subsequent opportunity to reconfirm oral statements via recording.

•         Lack of recording combined with inconsistent police accounts.

•         Where only a rough summary of inculpatory comments are provided but police cannot recall all questions asked and answered.

In summary, where the Crown can present a sufficient record to establish voluntariness, questions of accuracy go to weight/probative value, and not admissibility.

  In R v. Singh, the Supreme Court of Canada said that a caution is to be given where there are reasonable grounds to believe that the person being questioned has committed an offence.

 If the police are merely seeking information from people they believe are witnesses or persons of interest, there is no need for a caution.  However, if the accused is viewed as a suspect—in other words implicated or involved in the crime—failure to caution him could be significant.  As noted in R. v. J.R.,

If an accused or a suspect has not been apprised of his right to counsel or that his lies could be used against him at trial, perhaps in a way he may not understand, he would not be aware of the full implications of what is at stake in telling those lies to the police.  In the interests of trial fairness a suspect or an accused must be apprised of such implications or given the opportunity to be apprised of them by a lawyer before the statement can be said to be truly voluntary.

 The failure to provide a caution to a suspect after the police have received information that “would alert any reasonably competent investigator to the realistic prospect” the accused had been involved in the crime is a significant consideration on the issue of voluntariness.

 The principle of when a suspect should be cautioned is easier to outline than it is to apply.  However, as noted in R. v. A.D.

“The trigger for an expectation that the police will give a person being questioned a caution respecting the right to silence must be less than reasonable grounds to believe that the person committed an offence, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that, to use the words of the Major Case Manual, a person’s “background, relationship to the victim or the opportunity to commit the offence may warrant further inquiry.”

The need to draw the line appropriately stems from the fact that the court must balance a suspect’s right to silence with the state’s need to properly investigate crimes.  Consequently, the court must not be overly expansive in how it draws that line.  To do so is to “overemphasize an individual’s right to silence at the cost of stifling legitimate police investigation.”

Analysis

As noted earlier, the essence of the issue with respect to the adequacy of the record is whether the court has sufficient information to be able to assess voluntariness.

With respect to the June 19, 2012, although I do not doubt the sincerity of Cst. Vanderwater, the lack of context for the statement made by Picard, the failure to separate the first statement from the second statement, the lack of notes regarding the questions asked, and Cst. Vanderwater’s inability to advise the court with any certainty what information she received during the first conversation and what information she received during the second conversation, make it impossible for the court to assess voluntariness.

It is not enough that Cst. Vanderwater advised the court that she made no promises, threats or inducements.  Nor is it enough that it is not disputed that Picard had an operating mind and that there was no oppressive atmosphere or police trickery.  What matters is whether there is sufficient contextual information to permit the court to assess the accuracy of these assertions.  In the circumstances of this case, the record is so inadequate that the necessary assessment cannot be made.  Consequently, I find that the Crown has not proven the voluntariness of this statement beyond a reasonable doubt.

The June 26 statement, however, is a different matter.  This statement was video-recorded.  There was limited interaction between Picard and Det. Niemi prior to Picard’s arrival at the station.  There was a telephone conversation in which the text messages between Picard and Nayel were discussed and Det. Niemi asked Picard to come into the station.  Although there are no notes of that conversation, I accept Det. Niemi’s evidence that Picard came into the station on a date and at a time of his own choosing.  Det. Niemi met Picard in the lobby and took him immediately to the interview.  Det. Niemi testified that he had no conversation of consequence with Picard during that short journey.  I accept his testimony.  Furthermore, defence conceded there was no other communication of consequence with any police officer during the approximately ten minutes Picard waited in the lobby for Det. Niemi to arrive.

 The video statement was conducted in a polite and conversational manner.  It is clear that Picard was comfortable talking to Det. Niemi.  Det. Niemi testified that at the end of the statement he was convinced that Picard had no involvement in Nayel’s disappearance.  This view is supported by the fact that although Det. Niemi got Picard to sign a release permitting police to seize his cellphone, Det. Niemi did not do so.

Defence argued that Picard ought to have been given a caution prior to making his statement to Det. Niemi.  The only caution that Picard received was a caution that his statement could be used to lay criminal charges and that he could be called to testify as a witness.  He was also asked to swear to tell the truth and cautioned regarding the consequences of lying under oath.

As noted earlier, a police caution is only required if the person making the statement is considered a suspect or ought to have been considered a suspect.  Det. Niemi testified that he did not consider Picard  to be a suspect at the time of Picard’s statement.  However, the analysis does not end there.  The court must determine whether the police were in possession of information that “would alert any reasonably competent investigator to the realistic prospect” that the accused was involved in the crime.

In this case, the police knew the following at the time of the June 26 interview:

•         Picard was one of the last people to speak to Nayel;

•         Police had received information that Nayel was a small-time marijuana dealer and it appeared that at the time of his disappearance, Nayel had been organizing a major drug deal;

•         Nayel’s father had given Det. Niemi some paper with notes in Nayel’s handwriting.  On one piece of paper was Picard’s name and cellphone number; and

•         Police were treating Nayel’s disappearance as suspicious.

The trial judge said;

“In my view, this information would not have led a reasonably competent investigator to suspect that Picard was involved in Nayel’s disappearance.  Picard’s explanation for his contact with Nayel was corroborated by text messages viewed by Det. Niemi.  Det. Niemi believed Picard’s explanation and in the circumstances it was reasonable for him to do so.  Picard was not known to the police at that time to be a drug dealer.  The paper found by Nayel’s father with Picard’s contact information was meaningless without more.  Picard was cooperative with police. 

“Finally, although at that time police were treating Nayel’s disappearance as suspicious, they had no evidence that any crime had been committed and no information to link Picard to Nayel’s disappearance.  Therefore, I find that at the time of the June 26 statement, Picard was only a witness and no police caution was required. Consequently, the Crown has proven, beyond a reasonable doubt, that the statement of June 26, 2012 is voluntary and it is admissible.” unquote

It is conceivable that that if more evidence came to the attention to the police of Picard’s role in the death of Nayel, then Picard’s statement to Det. Niemi would fill in the blanks and if that is so, Picard’s statement would help bring about the conviction of Picard with respect to Nayel’s death.

Special Note:

The police are required by law to warn suspects who are being questioned about a crime that the police believe the suspect committed.  However in the case of Picard, Detective Niemi while interviewing him, had no reason to suspect that Picard was involved in Nayel`s death either personally or with someone else. He was just trying to fill in blanks that might give the police more information about Nayel`s death.

Several years ago, I was asked by a neighbour to accompany her daughter to the local police station and be with her during the police interview. The police knew she wasn`t involved with the shooting to death of a local man since they knew who the shooter was.  They treated her as a possible witness and for this reason, it wasn`t necessary to give her the official warning. She gave her statement freely without a warning being given to her. The interview was friendly and video-taped and she told the detective what she knew. Now had she blurted out that she shot the man, (which she didn`t) that information could be used against her even though she hadn`t been given the official warning. She did however swear to tell the truth before another detective who was commissioned by the government to give the oath to the young woman. 

Later, I will let you know the results of his trial when it ends.