Court of Appeal for Ontario
Between:
Her Majesty the Queen
Appellant
and
Kim Ha
Respondent
Before: O’Connor A.C.J.O., Laskin and Gillese Watt JJ.A.
Counsel:
Antoinette Issa and A. Shachter, for the appellant
K. Schofield, for the respondent
Heard and orally released: June 4, 2010
On appeal from the acquittal entered by Justice T. Dunnet of the Superior Court of Justice on December 9, 2008.
ENDORSEMENT
1We have divided this endorsement into two sections. The first relates to the production of marijuana charge, the second to the bribery charge.
2On the production charge, we are not prepared to interfere with the trial judge’s findings that there were breaches of the appellant’s ss. 9, 10(a) and 10(b) Charter rights or her s. 24(2) ruling. We are not persuaded that the trial judge misapprehended the evidence or made any unreasonable findings of fact.
3On the s. 9 breach, although the trial judge did not specifically refer to the totality of circumstances test, we do not conclude, on our reading of all of her reasons, that she failed to consider the relevant circumstances.
4On the ss. 10(a) and 10(b) breaches, the Crown relies heavily on the evidence of one officer. It is apparent that the trial judge substantially discounted that evidence and relied on the evidence of other officers about the respondent’s language problems. In the end, there was an evidentiary basis for the trial judge’s conclusion that the respondent could not be given her s. 10(a) and s. 10(b) rights without the assistance of an interpreter.
5We see no basis to interfere with the trial judge’s discretion to exclude the statements as they relate to the production of marijuana charge. Accordingly, the Crown’s appeal from the acquittal on that charge is dismissed.
6As to the bribery charge, the respondent made a number of statements to the police officers during her arrest for production of marijuana in which she offered them money in an attempt to avoid arrest. The trial judge excluded the statements after finding that their reception would render her trial unfair. As we have already said, we see no basis on which to interfere with the trial judge’s ruling that excluded the statements on the basis of the Charter breaches in relation to the production of marijuana charge. However, in our view, this determination did not resolve the question of whether the statements were admissible as the gravamen of the bribery offence.
7In R. v. Hanneson (1989), 49 C.C.C. (3d) 467, this court considered whether a Charter breach insulated a detained person against liability for subsequent criminal acts. Justice Zuber, speaking for the court, said the following:
Similarly, despite a breach of s. 10(b), a detained person will attract criminal responsibility for crimes committed by words e.g. threatening death or offering a bribe. Section 10(b) has as its object the provision of counsel to those under investigation for crimes already committed in order that they might be advised with respect to making disclosure, the provision of evidence, etc. regarding of those crimes. Section 10(b) cannot possibly relate to crimes yet to come.
8In our view, the rationale in Hanneson applies equally here where there was a s. 9 breach as well as breaches of s. 10 of the Charter. The statements made by the respondent constituted the actus reus of the new offence. They did not flow causally from the Charter breaches.
9Accordingly, we would allow the Crown’s appeal against the acquittal on the bribery charge and order a new trial on that charge.
“D. O’Connor A.C.J.O.”
“J.I. Laskin J.A.”
“E.E. Gillese J.A.”
