The Defence Toolkit - August 5, 2023 "Police Station Interviewing"

R v Corner, 2023 ONCA 509

[July 27, 2023] Detention: Police Station Interviews [Reasons by Doherty JA with K Feldman and G Trotter concurring]

AUTHOR’S NOTE: Statements given in police stations have recently received attention by appellant courts including the SCC. This decision is a positive development in the recognition that "witness" status in the eyes of the police doesn't necessarily line up with an objective assessment of the person's detention. Control over the movements and property of the "witness" is key. Much of commentary in this case can be applied to other cases of interviews that turn into detention. The underlying picture here, as in most such cases, appears to be an either reckless indifference by the interviewer to the facts known to police or an intentional obfuscation of the actual status of the accused. When looked at in full context it is obvious that most police station interviews are very conducive to a finding of detention but for deliberate efforts by police to let the person know they are free to move about and free to leave.

OVERVIEW

[1] The appellant, a drug dealer, shot and killed his friend and drug dealing partner, Shabir Niazi. The shooting occurred in the late afternoon of February 19, 2014, in the garage of the home of the appellant’s parents. The appellant lived with his parents.

[2] In the minutes, hours, days, and weeks that followed the homicide, the appellant told a friend, the 9-1-1 operator, other friends, family members, family members of Mr. Niazi, and several police officers, that Mr. Niazi had been shot and killed during a “drug rip off”. The appellant told different versions of this story, some more detailed than others. In essence, he indicated that several men had burst into the garage intent upon stealing the marihuana that he and Mr. Niazi stored there. The robbers pistol whipped the appellant and shot and killed Mr. Niazi before fleeing the scene. I will refer to the various versions of this narrative as the “Robbery Story”. Not only did the appellant repeatedly tell the Robbery Story, but on February 26, 2014, seven days after the homicide, the appellant placed an anonymous call to the Crime Stoppers tip line, reporting that he had seen four men fleeing the scene of the homicide.

3] Within days of the homicide, the police located the gun used to kill Mr. Niazi. The appellant had hidden the gun in a wooded area near his home, along with the sweater that he was wearing at the time of the shooting.

[4] By the time of trial, the appellant had abandoned the Robbery Story. As he recalled the events at trial, he had shot and killed Mr. Niazi in self-defence….

[5] The autopsy revealed that Mr. Niazi was hit with at least eight shots. Three of the bullets entered his head, one entered from the back of his head and travelled through the brain. A fourth bullet went through Mr. Niazi’s heart.

[6] The appellant explained that he repeatedly told the false Robbery Story because he feared retaliation from Mr. Niazi’s family, if he admitted killing Mr. Niazi.

[7] …For the reasons that follow, I would hold that the trial judge erred in admitting some of the statements made by the appellant to the police. I would allow the appeal and direct a new trial.

THE CONVICTION APPEAL

Did the trial judge err in admitting the appellant’s statements to the police made on February 19, 2014, the day of the homicide, and on March 1, 2014, the day of the appellant’s arrest?

C. The admissibility of the appellant’s statements

(i) Overview

[44] At trial, the Crown tendered statements made by the appellant to police officers on February 19, the day of the homicide, and on March 1-2, after the appellant’s arrest on the murder charge. The statements made by the appellant all repeated, with varying levels of detail, the Robbery Story that the appellant had told the 9-1-1 operator, his friends, family members, and family members of Mr. Niazi. In none of the statements did the appellant admit any responsibility for Mr. Niazi’s death, suggest that he had been assaulted by Mr. Niazi, or that he killed Mr. Niazi in self-defence.

[45] In his evidence, the appellant indicated that the Robbery Story was false. He had shot and killed Mr. Niazi in self-defence. The Crown argued that the timing and repetition of the false and sometimes very detailed Robbery Story, coupled with the appellant’s false “tip” to Crime Stoppers, constituted evidence from which a jury could infer that the appellant had not acted in self-defence when he killed Mr. Niazi. The Crown further submitted that the statements were admissible to challenge the credibility of the appellant’s evidence should he testify that he acted in self-defence.

[46] The statements made by the appellant fall into three groups:

Statements made to Constable Micallef and Constable MacKinnon at the scene of the homicide on February 19, 2014 between about 4:30 p.m. and about 5:00 p.m.
Statements made during an interview with Detective Melnick at 19 Division on February 19, 2014, beginning at about 5:50 p.m. and carrying on until about 3:00 a.m. the next morning;
Statements made to Detective Horrocks on March 1, 2014, after the appellant was arrested and charged with murder, and on March 2 when Detective Horrocks spoke with the appellant in the cells.

**(ii) The relevant Charter provisions**

(iii) The proceedings at trial

[49] In his ruling, the trial judge held that all of the statements made to Constables Micallef and MacKinnon at the scene of the homicide were admissible. He broke the statement made to Detective Melnick at 19 Division down into two parts. The trial judge held that the first part of the statement, commencing at 5:50 p.m. and ending at about 7:40 p.m., was admissible. However, the second part of the statement, beginning at about 7:40 p.m. and continuing until 3:00 a.m., was obtained in violation of the appellant’s Charter rights and was excluded under s. 24(2) of the Charter. The trial judge divided the statements made by the appellant to Detective Horrocks on March 1 into three parts. He ruled the first two parts admissible, and the third part involuntary and inadmissible. The trial judge also excluded the March 2 statement as involuntary on the basis that it was closely connected to the involuntary portion of the March 1 statement.

[104] The trial judge correctly laid out the law applicable to detention for the purposes of s. 9 of the Charter. His findings of fact relevant to the interaction between the appellant and the police at the scene reveal no material misapprehension of the evidence, and are not unreasonable. His finding that the appellant was not detained at the scene should stand. It follows that the rights in s. 10 of the Charter were not engaged. There was no Charter breach at the scene.

(vi) The Statement at 19 Division

(a) The Evidence

[105] Constable MacKinnon and the appellant proceeded to 19 Division. They entered through the front door and Constable MacKinnon took the appellant directly to what he referred to as a “soft interview room”. According to the police evidence, this room was used for questioning witnesses and was less spartan than the rooms used for questioning persons under arrest.

[106] Once the appellant was in the interview room, which is a non-public part of the police station, he was not free to move about the rest of the police station or come and go as he pleased. If he wanted to use the washroom, go outside, or go back to the general waiting area to speak to the other individuals in the waiting room, the appellant needed the permission of the police to leave the interview room and pass through the non-public part of the police station. With the exception of a brief visit with his parents in the early morning hours of February 20, only police officers came and went from the interview room in which the appellant was seated for almost ten hours.

[107] Although the evidence is not entirely clear, at some time shortly after the appellant arrived at 19 Division and before he went into the interview room, the police obtained his cellphone and wallet. Constable MacKinnon could not recall whether he had asked the appellant for his wallet and cellphone, but acknowledged that he may have done so.

[108] Because the appellant did not testify, there is no evidence from him as to how the police came to be in possession of his wallet and cellphone, or why they wanted these items. I cannot, however, accept the suggestion that the appellant may have asked the police to hold onto his wallet and cellphone. There is no evidence that he gave his cellphone and wallet to the police, and it makes no sense, that having gone to the police station to give a statement, the appellant would ask the police to take possession of his wallet and cellphone. The police eventually returned the appellant’s wallet to him the next morning when he left the station at 3:00 a.m. They kept his cellphone.

[109] By the time Detective Melnick joined the appellant in the interview room at about 5:50 p.m., the homicide investigation was moving forward on several fronts. Detective Melnick was aware that the appellant was a drug dealer and believed by the police to possess firearms. He also knew that the police were investigating the appellant’s residence as a crime scene and intended to test the appellant’s hands for gunshot residue. According to Detective Melnick, this was standard practice for anyone who had been at the scene of a shooting. Detective Melnick testified that he was not aware that the police were in the process of obtaining a search warrant for the appellant’s home.

[110] Before Detective Melnick began the interview, the police offered to get the appellant some food. The appellant was not told that he could go and get his own food and return to the interview if he so wished. The appellant placed his food order through the police and dinner was delivered to him while he was sitting in the interview room. He ate it while being questioned by Detective Melnick.

[111] Detective Melnick maintained that when he began the interview, he considered the appellant a witness only and, therefore, had a KGB caution administered. In the caution, the appellant acknowledged that he was under an obligation to tell the truth during the questioning. Detective Melnick asked the appellant, “what brings you to the police station?”. He followed up with, “what happened?”. The appellant responded with a detailed version of the Robbery Story, complete with descriptions of the assailants, background information about his drug dealings, and a list of various enemies that he and Mr. Niazi had made over the years in the drug business. Detective Melnick testified that he had a “great rapport” with the appellant and thought that they were “pretty comfortable with each other”. The atmosphere in this first part of the interview was not adversarial and Detective Melnick’s questions were not accusatory.

[112] At no time before 7:40 p.m. did Detective Melnick tell the appellant that he had a right to remain silent, a right to speak with counsel, or a right to discontinue the interview and leave the police station if he so wished. Nor did Detective Melnick advise the appellant that the police intended to test his hands for gunshot residue, or that his residence was considered a crime scene. According to Detective Melnick, he did none of these things because he viewed the appellant as a witness and not a suspect, and did not think the appellant was detained.

[113] At about 7:40 p.m., Detective Melnick appeared to be in the process of winding down the interview with the appellant. He asked the appellant to take a minute and think if there was anything that he had forgotten to tell him. The appellant replied, “Is there somewhere I could walk around while I think”. The Detective replied, “I can’t really let you leave”.

[114] The appellant then requested permission to use the bathroom. Detective Melnick told him that he could use the bathroom, but could not wash his hands, presumably because the police had not yet tested his hands for gunshot residue. Detective Melnick took the appellant to the bathroom and kept him under observation while he was there.

[115] Detective Melnick returned the appellant to the interview room after the appellant had finished in the bathroom. The appellant was not asked whether he had anything else to say, nor was he invited to leave the station if he did not. Instead, he was left sitting in the interview room while Detective Melnick received an update on the ongoing investigation from his colleagues. While the appellant was sitting in the interview room waiting for Detective Melnick to return, another officer entered the room and performed a gunshot residue test. She did not ask the appellant’s permission to perform the test and did not tell him he could refuse to submit to the test. This officer believed that the appellant was under arrest at the time.

[116] When Detective Melnick returned to the interview room some time later, his attitude toward the appellant had changed. He confronted the appellant with inconsistencies between the appellant’s statements and information that had been provided by other witnesses. Detective Melnick made it clear to the appellant that he did not believe the Robbery Story that the appellant had earlier told him.

[117] Detective Melnick told the appellant that he had a right to remain silent and that anything he said would be admissible in court. He also told the appellant that he had a right to speak to a lawyer. Detective Melnick, however, linked both the right to silence and the right to a lawyer to a potential obstruction of justice charge should the appellant be lying to him. Detective Melnick did not caution the appellant or provide him with his right to counsel in respect of the homicide.

[118] Throughout the rest of the interview, Detective Melnick insisted that the appellant was not telling the truth about what happened. In the face of Detective Melnick’s persistent questioning, the appellant changed some of the details of the Robbery Story, but otherwise maintained that story. A second detective joined Detective Melnick during the interview. That detective assumed a confrontational attitude toward the appellant. He asked the appellant flat out, “[d]id you shoot him?” The appellant insisted that he had not.

[119] The appellant remained in the interview room for several more hours. He was allowed to leave the station at about 3:00 a.m. Detective Melnick told the appellant that the police were keeping his clothing. He also asked the appellant for his cellphone number. The police already had his cellphone.

[120] Detective Melnick insisted that throughout this entire process, he regarded the appellant as a witness and did not consider the appellant to be detained.

(b) Was the appellant detained at 19 Division before about 7:40 p.m. on February 19?

[121] The appellant arrived at 19 Division sometime shortly after 5:00 p.m. with Constable MacKinnon. Constable MacKinnon escorted him directly into an interview room in the non-public part of the police station. Other potential witnesses were sitting in the public waiting area of the station. For the next ten hours, until 3:00 a.m. the next morning, the police maintained total control over the appellant. With one brief exception for a supervised visit to a washroom, and a second exception for a brief visit with his parents, the appellant remained in a police interview room exclusively in the company of police officers for ten hours.

[122] The trial judge found, and his finding is not challenged on appeal, that the appellant was detained for most of the time that he was in the interview room. On the trial judge’s finding, the detention began at about 7:40 p.m., almost two hours after the interview with Detective Melnick began, and about seven hours before he was released from the interview room.

[123] Counsel for the appellant submits that the trial judge wrongly held that the appellant was not detained for the first two hours that he was in the interview room…

[124] I agree with the submissions of counsel for the appellant. The totality of the circumstances compels the conclusion that the appellant was detained from the time he was placed in the interview room.

[125] The total control by the police of an individual and the isolation of that individual from non-police personnel will often generate the kind of power imbalance that would cause a reasonable person to believe that he is no longer free to come and go as he pleases: Grant, at paras. 21-22, 44; Le, at para. 50; and Lafrance, at paras. 43-51. This is especially true when the police do and say nothing to dispel the perception flowing from that power imbalance.

[126] On the evidence, the police had total control of the appellant from the time he entered the police station. They immediately isolated him from all non-police personnel. He was never told that he had any choice in the matter. The police control extended to what he would eat, when he would eat it, and when he would be allowed to go to the bathroom.

[127] The total control that the police had assumed over the appellant while he was in the interview room is made clear from the exchange between the appellant and Detective Melnick at about 7:40 p.m. The appellant indicated that he would like to take the opportunity to walk around and think before continuing with the interview. Detective Melnick said “I can’t really let you leave”. While the Crown suggests that this is an indication only that the appellant could not move around in the non-public part of the police station, Detective Melnick’s comment is not qualified in any way. Surely, had Detective Melnick intended to tell the appellant that, while he could not walk around in the non-public part of the police station, he could leave the building and go wherever he wanted to go, Detective Melnick would have told the appellant exactly that.

[128] Detective Melnick’s indication to the appellant that he could only go to the washroom under police supervision is a further indication of the total control that the police had assumed over the appellant.

[129] The exchange between Detective Melnick and the appellant at about 7:40 p.m. also sheds light on the appellant’s perception of his situation. He believed that he needed permission from the police to leave the interview room and that he also needed permission to go to the bathroom. While the individual’s perceptions are not determinative of the detention question, they can shed some light on how a reasonable person in the individual’s circumstances would perceive his situation: Grant, at para. 32; Le, at para. 113.

[130] The trial judge interpreted the words of Detective Melnick as indicating that the appellant’s right “to leave the police station had ended” at about 7:40 p.m. With respect, this is an unreasonable inference from the evidence. Nothing in the evidence suggests that Detective Melnick would not have made exactly the same statement had the appellant indicated that he wanted to leave the interview room at any time between 5:50 p.m. and about 7:40 p.m. The only reasonable inference is that Detective Melnick was not prepared to allow the appellant to leave the interview room unattended by the police at any time until Detective Melnick was finished questioning him. It is mere happenstance that the appellant made the request which precipitated Detective Melnick’s clear indication that the appellant was not free to leave the interview room at about 7:40 p.m., as opposed to some earlier time in the interview.

[131] The evidence also indicates that the police no longer regarded the appellant as simply an eyewitness with information to provide. Their investigation was expanding to include the appellant. The decision to test the appellant’s hands for gunshot residue, the decision to keep the appellant’s cellphone and wallet, the decision to treat his residence as a crime scene, and the decision to seek a search warrant for his residence, all imply that the police had come to see the appellant as at least potentially involved in the homicide. To some extent at least, the police efforts had turned to gathering evidence potentially relevant to the appellant’s possible involvement in the homicide. [Emphasis by PJM]

[132] The decision to test the appellant’s hands for gunshot residue is an indication that the appellant was no longer regarded as simply an eyewitness. The decision to test for gunshot residue is also significant to the question of detention in a second way. Clearly, the police were going to test the appellant for gunshot residue and had no intention of asking his permission. Equally clear, there was no point in testing for gunshot residue unless the police maintained control over the appellant’s movements until the test was performed. The police decision to test the appellant for gunshot residue ensured that he would not be free to leave the police station, at least until the test was completed.

[134] The evidentiary significance of the police possession of the appellant’s wallet and cellphone did not depend on whether the police had seized the wallet and cellphone. There is no question that the police had the wallet and cellphone from the time that the appellant entered the interview room until 3:00 a.m. the next morning. While the absence of evidence from the police or the appellant makes it impossible to say exactly how the police came to possess the cellphone and wallet, the only reasonable inference is that the police acquired the cellphone and wallet as a result of a police initiative. The appellant did not offer the police his wallet and cellphone.

[135] The police possession of the appellant’s cellphone suggests an interest in his movements and communications prior to and after the homicide. In addition, by taking possession of the appellant’s cellphone and wallet, objects most people would regard as their most important personal property, the police further secured their control over the appellant and his isolation from others while he was in the interview room.

[136] Detective Melnick’s actions as the interview appeared to be winding down at about 7:40 p.m. are a further indication that the appellant was not free to leave the interview room while being questioned. Detective Melnick appeared to have finished his questions. He did not, however, advise the appellant that he could leave if he had nothing more to tell the police. Instead, he left the appellant sitting in the interview room while he went to confer with his colleagues who were involved in the ongoing investigation. After some time, Detective Melnick returned to the interview room where the appellant had been sitting waiting for him. Detective Melnick was armed with many more questions and a different attitude.

[137] …The detention inquiry is concerned with the impact of the totality of the circumstances, including the police conduct on the perception of a reasonable person in the accused’s circumstances: Grant, at para. 32; Le, at para. 116.

[138] For example, it may have made sense from the police perspective to take the appellant directly to an interview room rather than allowing him to sit in the public area of the police station with other potential witnesses. Nonetheless, the police conduct would certainly contribute to a sense of isolation and lack of control that a reasonable person in the shoes of the appellant would feel as he was escorted past other potential witnesses and directly into the non-public area of the police station. It would, of course, be open to the police to explain to someone in the appellant’s position why he was being taken directly to an interview room. That explanation, if offered, could offset, to some degree at least, the sense of isolation and lack of control that the reasonable person in those circumstances would otherwise experience.

[139] … A reasonable young person with a history of adversarial interactions with the police would feel, with particular force, the isolation, control, and police domination flowing from the treatment afforded to the appellant at the police station. A reasonable person, fixed with those personal characteristics, might well conclude that he was going nowhere until the police were finished questioning him. I would add that had the trial judge been made aware of the appellant’s Indigeneity, that, too, would have been material to whether the appellant was detained during the first part of the interview with Detective Melnick. [Emphasis by PJM]

[140] In summary, the police assumed total and exclusive control over the appellant from the time he arrived at the police station. They relinquished that control only some ten hours later when the appellant left the station. That control was clearly designed to isolate the appellant from anyone other than the police while the police were engaged in taking various investigative measures, some of which targeted at the appellant. The police never told the appellant that he was free to leave the police station if he wished to do so.

[141] The appellant was detained within the meaning of s. 9 of the Charter from the time he entered the interview room. The appellant was not informed of the reason for his detention, advised of his right to counsel, or given an opportunity to exercise that right. Consequently, his rights under ss. 10(a) and 10(b) of the Charter were also infringed.

(c) Should the statements made at 19 Division to Detective Melnick before about 7:40 p.m. be excluded under s. 24(2)?

[149] It is not unreasonable to think that, had the police complied with their obligations under s. 10 of the Charter, the appellant may have contacted counsel and after advice from counsel, at least asked Detective Melnick whether he was required to remain at the station. Assuming Detective Melnick would have taken the same position with the appellant that he ultimately took on the witness stand, Detective Melnick would have told the appellant that he was not detained and had no obligation to stay at the police station. On this scenario, the unlawful restriction on the appellant’s liberty would have ended relatively shortly after he arrived at the police station, and before he was put at risk of speaking to the police about the homicide without the advice of counsel and potentially incriminating himself in the responses he gave.

[151] I accept that the causal link between the statements made to Detective Melnick and the Charter breaches is, in the circumstances, not particularly strong. However, the force of the causal connection between the breach and the compromised evidence is only one factor to be taken into account in assessing the impact of the Charter breach on the accused’s Charter-protected interests: Beaver, at para. 125.

[153] Detective Melnick based his belief that the appellant was not detained on his perception that he and the appellant had a good relationship during the interview. The appellant was cooperative and the interview was non-adversarial. Detective Melnick’s subjective belief about his relationship with the appellant was not determinative of the appellant’s status. Detective Melnick was obliged, as an experienced officer, to make an objective assessment of the entirety of the circumstances, bearing in mind the accused’s personal characteristics. It is difficult to accept that anyone looking at the situation in the interview room from an objective perspective would not, at the very least, conclude that the appellant’s circumstances were sufficiently uncertain to call for some clarification by the police as to his status. Detective Melnick’s failure to do anything to clarify the appellant’s status as they sat in the interview room suggests, either that he had a material misunderstanding of the nature of a detention, or he preferred to avoid the topic unless, and until the appellant raised it.

[154] I would not characterize Detective Melnick’s failure to comply with his Charter obligations as wilful, or even reckless. His failure to advise the appellant that he was detained, and could contact counsel was, however, an unreasonable error in respect of what is a fundamental police power and obligation. The error is not indicative of “good faith”: Tim, at paras. 84-85.

[155] In summary, the breaches of ss. 9 and 10 of the Charter that occurred when the interview began at about 5:50 p.m. only exacerbated the seriousness of the Charter-infringing conduct identified by the trial judge as occurring after about 7:40 p.m. The impact of the breaches beginning at 5:50 p.m. on the appellant’s Charter- protected interests, also rendered more serious the overall impact of the breaches which occurred while he was in the police interview room. Exclusion of the statements made between 5:50 p.m. and about 7:40 p.m. does remove some additional reliable evidence from the Crown’s case. There remains, however, significant evidence of the appellant’s fabrication of the Robbery Story.

[156] The s. 24(2) calculus, as applied to the breaches beginning at 5:50 p.m., is essentially the same as the trial judge’s analysis. The first two Grant factors favour exclusion of the statements made between 5:50 p.m. and at about 7:40 p.m. The third Grant factor favours, although not strongly, the admission of the evidence. As with the statements made after about 7:40 p.m., the balancing of the factors favours the exclusion of the statements made between 5:50 p.m. and about 7:40 p.m.

CONCLUSION

[172] The failure to exclude the statements taken by Detective Melnick at the station on February 19 before 7:45 p.m. is an error in law. In their factum, Crown counsel, in support of the argument that the statements made before about 7:40 p.m. should be admitted, described those statements as “powerful post-offence conduct evidence that seriously undermines the appellant’s self-defence claim”. Given that position, it is not surprising that the Crown does not rely on the curative proviso to overcome the legal error made by the trial judge.

[173] The appeal is allowed. The conviction is quashed and a new trial is ordered on the charge of second degree murder.

R v Corner, 2023 ONCA 509

[July 27, 2023] NCRMD - Knowledge of Morality of Act [Justice Mayer]

AUTHOR’S NOTE: Statements given in police stations have recently received attention by appellant courts including the SCC. This decision is a positive development in the recognition that "witness" status in the eyes of the police doesn't necessarily line up with an objective assessment of the person's detention. Control over the movements and property of the "witness" is key. Much of commentary in this case can be applied to other cases of interviews that turn into detention. The underlying picture here, as in most such cases, appears to be an either reckless indifference by the interviewer to the facts known to police or an intentional obfuscation of the actual status of the accused. When looked at in full context it is obvious that most police station interviews are very conducive to a finding of detention but for deliberate efforts by police to let the person know they are free to move about and free to leave.

OVERVIEW

[1] The appellant, a drug dealer, shot and killed his friend and drug dealing partner, Shabir Niazi. The shooting occurred in the late afternoon of February 19, 2014, in the garage of the home of the appellant’s parents. The appellant lived with his parents.

[2] In the minutes, hours, days, and weeks that followed the homicide, the appellant told a friend, the 9-1-1 operator, other friends, family members, family members of Mr. Niazi, and several police officers, that Mr. Niazi had been shot and killed during a “drug rip off”. The appellant told different versions of this story, some more detailed than others. In essence, he indicated that several men had burst into the garage intent upon stealing the marihuana that he and Mr. Niazi stored there. The robbers pistol whipped the appellant and shot and killed Mr. Niazi before fleeing the scene. I will refer to the various versions of this narrative as the “Robbery Story”. Not only did the appellant repeatedly tell the Robbery Story, but on February 26, 2014, seven days after the homicide, the appellant placed an anonymous call to the Crime Stoppers tip line, reporting that he had seen four men fleeing the scene of the homicide.

3] Within days of the homicide, the police located the gun used to kill Mr. Niazi. The appellant had hidden the gun in a wooded area near his home, along with the sweater that he was wearing at the time of the shooting.

[4] By the time of trial, the appellant had abandoned the Robbery Story. As he recalled the events at trial, he had shot and killed Mr. Niazi in self-defence….

[5] The autopsy revealed that Mr. Niazi was hit with at least eight shots. Three of the bullets entered his head, one entered from the back of his head and travelled through the brain. A fourth bullet went through Mr. Niazi’s heart.

[6] The appellant explained that he repeatedly told the false Robbery Story because he feared retaliation from Mr. Niazi’s family, if he admitted killing Mr. Niazi.

[7] …For the reasons that follow, I would hold that the trial judge erred in admitting some of the statements made by the appellant to the police. I would allow the appeal and direct a new trial.

THE CONVICTION APPEAL

Did the trial judge err in admitting the appellant’s statements to the police made on February 19, 2014, the day of the homicide, and on March 1, 2014, the day of the appellant’s arrest?

C. The admissibility of the appellant’s statements

(i) Overview

[44] At trial, the Crown tendered statements made by the appellant to police officers on February 19, the day of the homicide, and on March 1-2, after the appellant’s arrest on the murder charge. The statements made by the appellant all repeated, with varying levels of detail, the Robbery Story that the appellant had told the 9-1-1 operator, his friends, family members, and family members of Mr. Niazi. In none of the statements did the appellant admit any responsibility for Mr. Niazi’s death, suggest that he had been assaulted by Mr. Niazi, or that he killed Mr. Niazi in self-defence.

[45] In his evidence, the appellant indicated that the Robbery Story was false. He had shot and killed Mr. Niazi in self-defence. The Crown argued that the timing and repetition of the false and sometimes very detailed Robbery Story, coupled with the appellant’s false “tip” to Crime Stoppers, constituted evidence from which a jury could infer that the appellant had not acted in self-defence when he killed Mr. Niazi. The Crown further submitted that the statements were admissible to challenge the credibility of the appellant’s evidence should he testify that he acted in self-defence.

[46] The statements made by the appellant fall into three groups:

Statements made to Constable Micallef and Constable MacKinnon at the scene of the homicide on February 19, 2014 between about 4:30 p.m. and about 5:00 p.m.
Statements made during an interview with Detective Melnick at 19 Division on February 19, 2014, beginning at about 5:50 p.m. and carrying on until about 3:00 a.m. the next morning;
Statements made to Detective Horrocks on March 1, 2014, after the appellant was arrested and charged with murder, and on March 2 when Detective Horrocks spoke with the appellant in the cells.