Court File and Parties

COURT FILE NO.: 12-02530G DATE: 20170306 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Applicant – and – CHAK-LAM WONG Respondent

Counsel: Jeffrey Pearson, for the Crown Brian Ross, for the Respondent

HEARD: February 27 and 28, March 1, 2017

RULING ON ADMISSIBILITY OF VIDEO STATEMENT

Regional Senior Justice Fuerst

Introduction

[1] Emergency medical personnel were called to the Markham home of Chak-Lam Wong and his wife, Shirley Yuen, around 4:30 p.m. on August 29, 2011. There they found the couple’s 14 month old niece, Carissa Lam, in medical distress. Carissa was in the care of Mr. Wong and his wife at the time.

[2] The child was taken initially to the local hospital, but within a few hours was moved to the Hospital for Sick Children in Toronto. There it was discovered that she had a fracture to the back of the skull, severe brain swelling and bleeding, and retinal haemorrhaging in the eyes.

[3] A police officer took initial brief statements from Carissa’s parents and Mr. Wong and his wife. Several hours later, officers from the Homicide Unit of York Regional Police were called in, because of the seriousness of Carissa’s injuries.

[4] Carissa died just before 5:00 p.m. on August 30, 2011.

[5] At 6:40 a.m. on August 30, 2011, Mr. Wong was interviewed on video by a Homicide Unit officer. The interview lasted for about six hours.

[6] Mr. Wong was permitted to leave the police station at the conclusion of the interview. He was not charged with any offence at that time.

[7] In March 2012, Mr. Wong was arrested and charged with the second degree murder of Carissa.

[8] Crown counsel seeks to introduce Mr. Wong’s videotaped statement, at his judge alone trial. The defence contests its admissibility.

Summary of the Evidence

(a) The Involvement of the Police

[9] Detective Rhonda Corsi, an officer with the York Regional Police Homicide Unit, was the lead investigator on the file. She testified that the Homicide Unit is required to investigate all deaths of children under the age of five years.

[10] Detective Corsi received a call at home from Detective Slade around 3:00 a.m. on August 30, 2011. Although she testified that she did not agree with his characterization, he told her that there was a “suspicious” injured baby.

[11] When she arrived at the Homicide Unit office at 4:55 a.m., she reviewed an email chain that was forwarded to her by Detective Slade. She learned that at 4:26 p.m. the previous day, a 911 call was made from a residence in Markham. Carissa Lam, a 14 month old child, was not breathing. Detective Constable Boris provided a summary of information obtained from his interviews of Carissa’s parents, and her uncle and aunt, Mr. Wong and Ms. Yuen, who were caring for the child at the time. He was told that Carissa was placed in a playpen on the main floor of the home when the aunt and uncle went upstairs to see to their own daughter. They heard crying, and Mr. Wong came downstairs. He picked Carissa up and rocked her gently for five to ten minutes. She began to cough, went red in the face, and stopped breathing. He called to his wife to call 911, and began doing CPR on Carissa.

[12] Carissa was taken to the local hospital. She had food in her lungs and possibly had aspirated. There was bleeding on the brain. She was moved to the Hospital for Sick Children. There was no sign of trauma to her body observed, but there was swelling of the brain as well as bleeding.

[13] According to Carissa’s mother, she had no pre-existing medical issues.

[14] The email chain contained further information from Dr. Shouldice of the SCAN team at the Hospital for Sick Children. A CT scan revealed that Carissa had suffered a traumatic injury to the head. It was unknown if this was recent, or accidental. There was a skull fracture at the back of the head that was causing severe swelling of the brain and bleeding around the brain. Dr. Shouldice also found retinal haemorrhages in the eyes. She observed six bruises to the forehead, which she said could be accidental.

[15] At 5:17 a.m. Detective Corsi spoke with officer Clint Whitney, of the Child Abuse Unit, who was at the Hospital for Sick Children with another officer from that Unit. They had been contacted sometime after 10:00 p.m. the previous evening. He told Detective Corsi, based on the interviews of Mr. Wong, his wife, and the child’s mother, that Carissa was dropped off at Mr. Wong’s home at 7:00 a.m. Mr. Wong was the last person to have contact with the child. Sometime around 4:00 p.m., Mr. Wong was upstairs with his own child when Carissa was crying. Mr. Wong picked her up from the playpen and rocked her. She was coughing, her face got redder and redder, and she stopped breathing. He tried to do CPR, and called to his wife to call 911.

[16] Officer Whitney was told by a doctor that the child had severe brain damage, involving significant brain swelling and bleeding, and would die. He told Detective Corsi that when the family members were told that the child’s vital signs were not good, they were all very upset, except for Mr. Wong. Mr. Wong stood off to the side, appeared nervous, and was tapping his leg. In the hall, he asked officers Whitney and Pelham what trouble he and his wife could be in because the child was at his house. Those officers thought the behaviour was odd. Detective Corsi testified that it did not mean anything to her because different people react differently to bad news.

[17] Hours later, Detective Constable Boris came in to work around 7:30 a.m. Detective Corsi was at 5 District at that time, and the video interview of Mr. Wong was underway. Detective Constable Boris briefed Detective Corsi about the statements he took the previous day. Mr. Wong told him then that he heard his own baby cry upstairs. His wife gave Carissa to him, and he played with her on the couch. His wife called him upstairs. He put Carissa in the playpen and went upstairs for 15 or 20 minutes. He heard Carissa crying and came downstairs. She was crying really loud. He picked her up and put her in a cradle position in his arms. He rocked her while bouncing for 10 minutes, but she did not stop crying. She started coughing. Nothing came out of her mouth. Her face went red and she went limp. His wife came downstairs and he told her to call 911. He put Carissa on the floor, breathed on her mouth, and did CPR.

(b) The Decision to Interview Mr. Wong on Video

[18] Detective Corsi testified that the statements taken from Mr. Wong, his wife, and Carissa’s parents were very brief. She wanted more detailed information from Mr. Wong. She knew that he was the last person who had contact with Carissa before she became non-responsive. But, he had not admitted doing anything wrong. Nothing in the information passed on to her explained the fracture at the back of the child’s head.

[19] She had information that Mr. Wong was leaving the Hospital for Sick Children and returning home. She briefed Detective Papineau shortly after 5:00 a.m., and detailed him and Detective Cooke to go to 5 District to take a statement from Mr. Wong. She detailed other officers to re-interview Mr. Wong’s wife and the child’s parents.

[20] Detectives Papineau and Cooke were to have Mr. Wong demonstrate how he rocked Carissa, using a doll from the Child Abuse Unit. In cross-examination, Detective Corsi said that she did not direct the officers conducting the other interviews to use a doll, because no other witnesses claimed to have rocked Carissa just before she became unresponsive.

[21] Detective Corsi said that at that time, the investigation was a coroner’s investigation. She and her fellow officers were assisting the coroner. She had not determined that a criminal offence had been committed. The child’s injuries were serious and concerning, but not suspicious. There was lots of missing information, including the mechanism of the head injury and the timing of the injury. She knew that, although it is controversial, retinal haemorrhaging is sometimes a sign of shaken baby, but her information was that Mr. Wong had rocked Carissa. Detective Corsi testified that Mr. Wong was a person of interest, just as was his wife and the child’s parents. He was not a suspect.

[22] Detective Corsi said that Mr. Wong’s wife and the child’s parents were “KGBed” on their re-interviews. Her notebook entry about the re-interviews of Carissa’s parents had the notation “KGB”. She testified that she expected Detective Papineau to take a KGB statement from Mr. Wong, as well. All four individuals were to be treated the same.

[23] Detective Corsi acknowledged that she told Detective Papineau that the interview of Mr. Wong was to be a cautioned interview. She agreed that she recorded in her notes that she told Detective Papineau to take a cautioned statement from Mr. Wong. In cross-examination, she initially said that she wanted KGB statements from all four family members, that she may not have used the right verbiage in referring to Mr. Wong’s statement as a cautioned statement, that in the Homicide Unit the officers “KGB” all their interviews, and that a cautioned statement and a KGB statement meant the same thing at the time. She did not expect Detective Papineau to tell Mr. Wong that his statement could be used against him. Mr. Wong was at the station as a witness, not a suspect. He was not detained. Had he tried to leave the station, she would not have stopped him. If he had been a suspect, however, he would have been cautioned.

[24] Detective Corsi agreed that Mr. Wong was not “KGBed”. She also agreed that the other interviews were shorter than that of Mr. Wong, and that no-one yelled at the other interviewees or told them that their stories did not make sense.

[25] At the conclusion of her cross-examination, Detective Corsi said that a KGB interview is for a witness, and a cautioned interview is when the subject is under arrest, or is a suspect but there are not grounds for arrest.

(c) The Video Interview of Mr. Wong

[26] Detective Robert Papineau came into the Homicide Unit office around 5:00 a.m. on August 30, 2011. He reviewed the call history, and was briefed by Detective Corsi. He was told that Mr. Wong and his wife were looking after their 14 month old niece, who had been dropped off at their home at 7:00 a.m. She was left in a playpen while they went upstairs. They heard crying and came downstairs. They rocked her, but she became redder. They tried CPR and called 911. X-rays taken at the hospital showed that the child had food in her lungs. She had vomited and aspirated. She was taken to the Hospital for Sick Children. She had severe swelling of the brain and bleeding, and was going to die. When that news was received, Mr. Wong was off to the side and asked what trouble they would be in. Updated information was that the child had a fracture to the back of the head that caused swelling of the brain. There was bleeding, and also retinal haemorrhaging in the eyes. The child had a traumatic head injury. It was unknown if this was recent.

[27] Detective Corsi detailed Detective Papineau to interview Mr. Wong. He testified that he did not have a note that she told him to caution Mr. Wong. He could not say that she told him to do that.

[28] Detective Papineau listened to the recording of Detective Constable Boris’s interview of Mr. Wong. From that, he knew that the child was fine when she came to the house, and that she ate normally that day. Mr. Wong said that he played with her in the area of the sofa, and she was fine. He put her in the playpen and joined his wife upstairs. After about fifteen minutes, she was crying. He came downstairs. He lifted her up out of the playpen. She was facing him. She continued to cry, and he rocked her and bounced her. Her eyes were closing and she was going red. She started not to move. He put her on the floor to do CPR.

[29] Detective Papineau agreed that Mr. Wong told Detective Constable Boris that he was with the child when she went into medical distress. His wife was upstairs then. Mr. Wong told Detective Constable Boris nothing that would explain the fracture, brain swelling, or retinal haemorrhaging.

[30] Detective Papineau testified that he considered Mr. Wong to be a witness in a baby death investigation. The police were assisting the coroner in a coroner’s investigation. It was still very early, and Detective Papineau had not determined when the child’s injuries were caused, or that a criminal offence had taken place.

[31] At the request of the police, Mr. Wong went to 5 District to be interviewed.

[32] Starting just after 6:30 a.m., Detective Papineau interviewed Mr. Wong on video for almost six hours. He conceded that he did not do a KGB interview. He could not explain why. He did not give Mr. Wong a formal caution, because the police had not established that an offence occurred. At the outset, he told Mr. Wong that he was not under arrest, that the door of the interview room was not locked, and that if Mr. Wong chose to leave, he would be escorted out. He did so because he wanted to establish that Mr. Wong was a witness. If Mr. Wong had wanted to leave, he would not have arrested or detained him.

[33] Detective Papineau told Mr. Wong that he was not obliged to talk to him, and that Mr. Wong did not have to answer questions, but that if he did, it would be captured on audio and videotape.

[34] Detective Papineau told Mr. Wong that if he felt he needed to speak to a lawyer, the police could put him in touch with a free lawyer. Initially, he testified that he did so out of an abundance of caution. Then he said that he did it as a favour to Mr. Wong, so that Mr. Wong could get the best independent advice possible.

[35] Detective Papineau agreed that he did not tell Mr. Wong that his statement could be used against him. He agreed that he told Mr. Wong he was going to read something from the back of his notebook, and that he had the wording of the standard caution there, but that he did not read it.

[36] Later during the interview, he gave Mr. Wong the secondary caution. He did so because he wanted it to be clear that Mr. Wong was there voluntarily.

[37] As the interview began, Detective Papineau told Mr. Wong that Carissa had died. Mr. Wong was visibly upset.

[38] At the officer’s request, Mr. Wong began to describe the events of August 29. There was an interruption when Detective Corsi came to the door and alerted Detective Papineau to the fact that Carissa was not deceased. Detective Papineau advised Mr. Wong of the correct information. Mr. Wong expressed relief, and asked for a washroom break.

[39] After the break, Mr. Wong indicated that he wanted to speak to a lawyer. Detective Papineau contacted duty counsel. Mr. Wong spoke to duty counsel by phone in private.

[40] When the interview resumed, Mr. Wong told Detective Papineau that he had received legal advice to remain silent. Detective Papineau replied that Mr. Wong had that right, but was not under arrest, and that “the right to remain silence [sic] is – is – if you’re being charged, and…you’re not being charged with anything.” He told Mr. Wong that the police look to people who are witnesses to help them understand what happened to the baby, and “you are one of those people.”

[41] The officer resumed asking Mr. Wong questions. Mr. Wong said that he wanted to cooperate with the police, but the “legal advisor” had told him to remain silent. He said that he was confused about his legal right. He repeated this several times during the interview.

[42] As the interview progressed, Detective Papineau became more aggressive and accusatorial in his questioning. At times, he raised his voice. He repeatedly suggested that when Mr. Wong denied doing anything more than rocking and bouncing the child, he was not telling the whole story. The officer suggested that Mr. Wong became frustrated and overwhelmed by the child’s crying, and caused her severe head trauma. He told Mr. Wong that he had no doubt about this.

[43] Eventually Mr. Wong broke down emotionally, and sobbed for several minutes. He maintained his denial that he caused harm to the child.

[44] During the latter part of the interview, Detective Papineau left the interview room and spoke with Detectives Corsi and Cooke about whether Mr. Wong should be arrested. It was decided that he would not be arrested. Mr. Wong left the police station at the conclusion of the interview.

[45] Detective Papineau acknowledged in cross-examination that he pushed Mr. Wong to see if he could get an admission that the baby had been shaken, or that there was an event that explained the injuries. But, his view that Mr. Wong was a witness did not change during the interview.

[46] Detective Corsi said that she decided she had reasonable grounds to believe that an offence had been committed at 12:40 p.m. on August 30, 2011, after she spoke to Dr. Shouldice at 12:20 p.m. and was told that the doctors knew for sure there was a significant impact to the back of Carissa’s head or a shaking with impact. Her belief in reasonable grounds was based on the medical information, the interview of Mr. Wong, the age and lack of mobility of the child, ruling out that the child caused the injury to herself by a fall, and information that Mr. Wong made Google queries about Carissa’s injuries. At that point Mr. Wong became a suspect, but no other steps were taken because he had already left the station and Detective Corsi was busy with other things.

The Positions of the Parties

[47] On behalf of Mr. Wong, Mr. Ross concedes that the defendant was neither detained nor under arrest when Detective Papineau interviewed him. Accordingly, s. 10(b) of the Charter of Rights and Freedoms was not engaged.

[48] Mr. Ross submits that the statement was not voluntary. On the evidence available to the police at the time of the interview, viewed objectively, Mr. Wong was a suspect. The conduct of the police evidenced that they were investigating a crime and that they viewed Mr. Wong as a suspect. He was treated differently from the other witnesses, from whom the police took KGB statements. He was interviewed in a focused, confrontational manner that indicated the police believed an offence had occurred and that he was involved. The police had a duty to properly caution him, by clearly articulating the right to silence, his potential jeopardy, and the fact that any statement he made could be used in evidence against him at any trial. The caution that Detective Papineau gave was inadequate. Mr. Wong did not have an operating mind when he made the statement, because he did not know that anything he said could be used to his detriment. When all the circumstances are considered, including that Detective Papineau gave Mr. Wong erroneous information about his right to silence, there is a reasonable doubt about the voluntariness of the statement.

[49] Mr. Ross also contends that the police had a basis for investigative detention. Their failure to caution and properly advise Mr. Wong of his right to silence violated s. 7 of the Charter. The statement should be excluded under s. 24(2). Mr. Ross concedes, however, that if the statement is found voluntary, there is no s. 7 breach.

[50] On behalf of the Crown, Mr. Pearson submits that the statement was proved voluntary beyond a reasonable doubt, and that there is no s. 7 violation because Mr. Wong was not detained.

[51] Mr. Pearson contends that viewed objectively, Mr. Wong was not a suspect when he made the statement. The police had not yet identified that any criminal offence had been committed. Mr. Wong was interviewed as a witness only, and the police were not required to caution him.

[52] Mr. Pearson submits that even if a caution was necessary, Mr. Wong was in a better position than if he had been cautioned by the police. He spoke with duty counsel early on in the interview. He told Detective Papineau that duty counsel advised him of his right to silence. It can be inferred from his conversation with duty counsel that he knew that anything he told the police could be used to his detriment, because this logically flows from the advice not to speak. Mr. Wong knew he had a choice whether to speak with Detective Papineau, and he made the choice to speak.

The Governing Legal Principles

[53] In R. v. Oickle, 2000 SCC 38, at paragraph 69, the Supreme Court of Canada referred to voluntariness as the “touchstone” of the common law confessions rule. A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. The burden is on the Crown to prove a statement voluntary beyond a reasonable doubt.

[54] The court held that relevant factors include the making of threats, promises or other improper inducements; oppression; lack of an operating mind; and, the use of police trickery that would shock the community.

[55] There are, however, no hard and fast rules as to the circumstances that will vitiate the voluntariness of a confession. The trial judge must be alert to the entirety of the circumstances surrounding the statement, including the “particularities” of the interviewee: see paragraph 42. The analysis must be a contextual one, and all relevant factors must be considered: see paragraphs 47 and 68 to 71.

[56] The court was specific, at paragraph 30, that the confessions rule applies whenever a person in authority questions a “suspect”. There is no requirement that the individual be under arrest, or detained.

[57] Subsequently, in R. v. Singh, 2007 SCC 48, the court noted, at paragraph 3, that the right to silence is a component of the voluntariness rule. A person is not obliged to give information to the police or answer a police officer’s questions. The court commented, at paragraph 31, that this component “is reflected in the usual police caution given to a suspect”. Voluntariness requires that the court scrutinize whether the accused was denied his right to silence, meaning the right to make a meaningful choice whether to speak to the police or not.

[58] On the question of voluntariness, the court held that the focus is on the conduct of the police and its effect on the individual’s ability to exercise his or her free will. The test is an objective one, but the individual characteristics of the subject are relevant considerations in applying the objective test: see paragraph 36.

[59] The court said, at paragraph 38, that, “The mere presence of a doubt as to the exercise of the detainee’s free will in making the statement” will render it inadmissible under the common law.

[60] The court recognized the importance to the investigation of crime of police questioning of persons suspected of committing criminal offences, and pointed out that there is no right not to be spoken to by the police: see paragraph 28. It remains open to police officers to use legitimate means of persuasion to encourage a person to talk to them: see paragraph 47.

Analysis

(a) The Issue

[61] The particular aspect of voluntariness that arises in this case is the necessity that the subject have an operating mind. That requirement means that he must know what he is saying and that he is saying it to a police officer who can use it to his detriment: Oickle, at paragraph 63.

[62] There is no dispute that Mr. Wong knew what he was saying and that he was speaking to a police officer. The issue is whether he knew the police could use what he said to his detriment. The defence assertion that Mr. Wong should have been, but was not, properly cautioned as a suspect, so that he was clearly told of his right to silence, his potential jeopardy, and that anything he said could be used against him in evidence in any prosecution, is related to this issue.

(b) Was Mr. Wong a Suspect When He Was Interviewed on August 30, 2011?

[63] Crown counsel submits that no caution was necessary, because Mr. Wong was a witness only and not a suspect when he was interviewed. The police had not yet identified that any criminal offence had been committed, much less that Mr. Wong was involved.

[64] It is true that various formulations of “suspect” that appear in the jurisprudence are expressed in terms of the person’s involvement in a criminal offence. The identification of an individual as a “suspect”, however, does not require that the police have information that rises to the level of reasonable and probable grounds to believe that a crime has been committed. For example, in R. v. Worrall, [2002] O.J. No, 2711 (Ont. S.C.J.), the police did not yet know the actual cause of the deceased’s death, or for that matter his identity, when they interviewed the defendant on video. The information they did have was described by Watt J. (as he then was) as information that “would alert any reasonably competent investigator to the realistic prospect that [the deceased’s] death may have been associated with the consumption of heroin provided by the speaker” in an act of drug trafficking. Watt J. found that was sufficient to necessitate that the police tell the defendant, at the time of his video statement, that he was not required to answer any police questions and that anything he did say would be taken down and could be used in evidence in his prosecution for an offence arising out of his conduct in connection with the deceased’s death.

[65] More recently, in R. v. Chehil, 2013 SCC 49, at paragraphs 27 and 47, the court described “reasonable grounds to suspect” as engaging the reasonable possibility, rather than probability of crime (emphasis added). While still an objective standard based on objectively discernible facts, it is more than an educated guess or a hunch, but less demanding than reasonable and probable grounds to believe. It can arise from information that is less reliable than that required for reasonable and probable grounds to believe. See also R. v. Ali, 2016 ONSC 2100, at paragraphs 72 to 75.

[66] This approach to the identification of a person as a “suspect” respects the importance of the right to silence which is embraced in the common law confessions rule, and the protection it provides to the individual’s right to choose whether to speak to the authorities.

[67] In this case, at the point when Detective Papineau began to interview Mr. Wong on video, the police had information that would alert any reasonably competent investigator to the realistic prospect that Carissa’s injuries were inflicted by another person, and that Mr. Wong’s conduct was connected to the infliction of her injuries. That information included the following:

• Carissa, at 14 months old, was of limited mobility.
• The child was perfectly healthy when she was dropped off at Mr. Wong’s home on the morning of August 29, 2011.
• The child was in the sole care of Mr. Wong and his wife that day.
• The child was taken from Mr. Wong’s home by ambulance following a 911 call. She had no visible injuries.
• After her transfer to the Hospital for Sick Children, she was found to have a fractured skull at the back of her head, brain swelling, bleeding, and retinal haemorrhaging in the eyes. She had suffered trauma to the head, and was going to die.
• Mr. Wong gave an account to Detective Constable Boris in which he described playing with the child on the main floor of the house before he put her in the playpen there just before going upstairs to see his wife and infant daughter around 4:00 p.m.; coming back downstairs a few minutes later because Carissa was crying; picking her up from the playpen; and rocking her in his arms. He said that she was in his arms when her eyes started closing, she coughed, her face went red, and she stopped breathing. He told his wife to call 911, and he tried to do CPR on the child.
• Mr. Wong’s account to Detective Constable Boris of the events of August 29, 2011, included nothing that would explain the child’s significant injuries.
• Mr. Wong was alone with Carissa in the period before she went into medical distress, and again when she went into medical distress just a few minutes later. His wife was upstairs at both those times.
• Mr. Wong asked police officers at the hospital what trouble he and his wife could be in because the child was at his house.

[68] I do not accept the testimony of Detective Corsi and Detective Papineau that at the point when the video interview began, the police considered Mr. Wong to be only a person of interest, like his wife and Carissa’s parents, and the investigation was only a coroner’s investigation. Those assertions are contradicted by the following evidence:

• The nature of the injuries to the child.
• The age of the child, reflecting her limited mobility.
• I find that, as her notes record, Detective Corsi instructed Detective Papineau to take a cautioned statement from Mr. Wong, while she instructed other officers to take KGB statements from Mr. Wong’s wife and the child’s parents. Detective Corsi was reluctant to, but ultimately did acknowledge that a cautioned statement is taken when the subject is a suspect, while a KGB statement is taken from a witness.
• Detective Corsi instructed Detective Papineau to have Mr. Wong demonstrate how he rocked the child, using a doll. Neither his wife nor the child’s parents were asked to use a doll to show how they handled the child.
• Detective Papineau questioned Mr. Wong for six hours.
• Detective Papineau went from asking Mr. Wong about the events of August 29, to suggesting that he could tell that something was troubling Mr. Wong and that Mr. Wong wanted to speak about it. As the interview progressed, Detective Papineau became increasingly aggressive in his questioning of Mr. Wong. He moved from asking Mr. Wong questions, to making his own assertions. He told Mr. Wong that parts of his account did not add up. He suggested that Mr. Wong had become overwhelmed by the child’s crying. He accused Mr. Wong of picking up Carissa and shaking her. When Mr. Wong denied it, Detective Papineau said that there was no doubt in his mind that it happened. At times he was sarcastic, as transcribed at page 147 when he said, “Are you trying to tell me the baby violently shook itself to make its eyes bleed?” At points he raised his voice to Mr. Wong. He told Mr. Wong, as transcribed at page 119, “There’s two people that could have done it. Two people. If it’s not you, then it’s your wife. Is that what you’re telling me?…Your wife did it, then?” He told Mr. Wong, as transcribed at page 138, that he was “Not buying” his denial of causing the child’s injuries. He accused Mr. Wong of being untruthful. As Mr. Wong said in the latter part of the interview, “the more that I answer you - the - the more that you - you seems to putting things on me”. The prolonged and persistently accusatorial style of the interview is inconsistent with an information-gathering interview of a witness. It is indicative of an attempt to push a suspect to make admissions of guilt.
• During the latter part of the interview, Detective Papineau left the interview room to discuss with Detectives Corsi and Cooke whether Mr. Wong should be arrested.

[69] I find that at the point of the video interview, Mr. Wong was a suspect in a police investigation, both in the minds of the officers and objectively viewed.

[70] I next turn to whether Mr. Wong was properly cautioned as a suspect.

(c) Was Mr. Wong Properly Cautioned?

[71] It is common ground between Crown and defence counsel that Detective Papineau did not give Mr. Wong the standard caution to a suspect. That caution warns the suspect that he may be charged with a criminal offence and that he is not obliged to say anything unless he wishes to do so, but that anything he says may be taken down and given in evidence.

[72] At the beginning of the interview, Detective Papineau told Mr. Wong that he was not under arrest, that he could choose to leave, and that he did not have to answer the officer’s questions but that whatever he said would be captured on audio and video. Detective Papineau also told Mr. Wong that he could speak to a lawyer, either his own lawyer or a free lawyer who could be contacted at a 1-800 number.

[73] Detective Papineau did not, however, tell Mr. Wong that he may be charged with an offence arising from the injuries to Carissa, nor did he tell him that anything he said could be used in evidence in any prosecution. Detective Papineau could not explain this when he testified. I find that the omission of this information was deliberate on Detective Papineau’s part. He had his notebook with him in the interview room, and he had the words of the formal caution recorded in the back of the book. He told Mr. Wong that he was going to read something to him from the book. However, instead of reading the words of the formal caution, Detective Papineau chose to loosely paraphrase.

[74] I find that Mr. Wong was not properly cautioned as a suspect.

[75] I next consider the impact of that failure.

(d) What is the Impact of the Absence of a Proper Caution?

[76] The failure to caution a suspect is not necessarily fatal to the voluntariness of a statement. While the absence of a caution is a factor, all the surrounding circumstances must be investigated. See Boudreau v. The King (1949), 7 C.R. 427 (S.C.C.), at p. 433.

[77] Crown counsel points out that Mr. Wong availed himself of the opportunity to speak with duty counsel, and then revealed to Detective Papineau that he had been informed of his right to remain silent and advised to exercise it. Crown counsel contends that from that information, it can be inferred that Mr. Wong was made aware that anything he told the police could be used in evidence to his detriment if he was charged with an offence.

[78] I am unable to accept that submission. There may be instances where the opportunity to speak to counsel fills the informational gap created by the absence of a proper caution, as the Supreme Court of Canada suggested in Singh, at paragraph 33. This, however, is not such a case. No evidence was adduced as to what Detective Papineau told duty counsel about why Mr. Wong was to be interviewed, or what duty counsel understood of Mr. Wong’s potential jeopardy. As Mr. Wong had not been told that he was a suspect, he could not have provided that information to duty counsel.

[79] Further, when Mr. Wong first told Detective Papineau that duty counsel informed him of his right to silence and suggested that he remain silent, the officer told Mr. Wong that “the right to remain silent is - is - if you’re being charged, and…you’re not being charged with anything”. Detective Papineau was an experienced police officer and a member of the Homicide Unit. It is a reasonable inference, and one that I draw, that he knew this information was completely wrong. I find that it created confusion in Mr. Wong about his right to silence. Mr. Wong expressed, more than once, that he felt confused about his right. The erroneous information also misled Mr. Wong as to his jeopardy. It is not at all clear that he fully understood what was at stake in speaking with the officer.

[80] Defence counsel concedes that no inducements were offered to Mr. Wong, nor was there an atmosphere of oppression, or intolerable police trickery. There were, however, other factors at play. Mr. Wong commented more than once that he was tired, as he had been up for some 24 hours by the time of the interview. Carissa was his niece and on the evidence, the emotions of family members were running high. Detective Papineau created additional confusion when he initially told Mr. Wong that Carissa had died, then backtracked and said that she was still alive. I accept that this was unintentional on Detective Papineau’s part and the result of erroneous information he received. Detective Corsi intervened quickly to correct the misinformation. Nonetheless, Mr. Wong expressed during the interview that he felt confused by the changing information. As I have already observed, the questioning of Mr. Wong, while falling short of being oppressive, was prolonged, persistent, and aggressive. Mr. Wong was a mature adult, and is obviously an intelligent person, but he had no criminal record. He was a novice to the techniques employed by Detective Papineau. Their effect was evidenced by his emotional disintegration as the interview progressed.

[81] I agree with defence counsel that none of this rises to the level of oppression, and that Detective Papineau did not offer improper inducements or resort to intolerable trickery. Nonetheless, these are circumstances surrounding the statement that are relevant to a voluntariness assessment, particularly whether Mr. Wong knew what was at stake in speaking with Detective Papineau. I have considerable doubt that Mr. Wong had that appreciation.

[82] After considering the entirety of the circumstances surrounding Mr. Wong’s video statement, including the failure to properly caution him, I am left with a reasonable doubt as to its voluntariness.

(e) The s. 7 Argument

[83] Mr. Wong was not detained or under arrest at the time of the video interview. The residual protection afforded to the right to silence under s. 7 was not triggered. There was no s. 7 violation. See Singh, at paragraph 32.

Conclusion

[84] Crown counsel failed to prove the August 30, 2011, video statement voluntary beyond a reasonable doubt. It is not admissible.

[85] The application to introduce the statement is dismissed.

Regional Senior Justice Fuerst

Released: March 6, 2017