CITATION: R. v. Nguyen, 2008 ONCA 49

DATE: 20080124

DOCKET: C44823

COURT OF APPEAL FOR ONTARIO

SIMMONS and LAFORME JJ.A. and McKINNON J. (ad hoc)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

CUONG NGOC NGUYEN

Appellant

Joseph Di Luca for the appellant

Moiz Rahman for the respondent

Heard: August 24, 2007

On appeal from the judgment of Justice Ramez Khawly of the Ontario Court of Justice dated January 23, 2006.

BY THE COURT:

Overview

[1] On July 21, 2004 police executed a warrant issued pursuant to the Controlled Drugs and Substances Act, S.C. 1996 c. 19, empowering them to search a suburban address in Toronto. On entry, the house was found to be unoccupied. In the basement was a sizeable marijuana grow operation.

[2] As one of the officers left the house to change into a protective suit in preparation to dismantle the grow operation, he noticed a van driven by the appellant pull into the driveway. The appellant, a Vietnamese immigrant, briefly stopped his van and then began to leave the driveway in reverse. The officer was wearing a vest with the word "Police" in large white letters. He approached the appellant's van and stated "Police, stop", whereupon the following conversation occurred:

Officer: Do you live here?

Appellant: Umm, yeah, yes.

Officer: You live here?

Appellant: Umm, yes.

Officer: What's with all the plants?

Appellant: Umm, I don't know.

Officer: The plants in the basement?

Appellant: [Sighs, looks down at his lap, no oral response].[^1]

[3] Following this conversation the officer arrested the appellant for production and possession of marijuana and advised him of his right to counsel. At trial the Crown relied, almost exclusively, on the appellant's answers to the police officer to connect the appellant to the grow operation. The appellant was convicted of producing marijuana and sentenced to five months imprisonment.

The Trial Judge's Ruling on the Appellant's Charter Application

[4] The appellant brought an application under ss. 10(a), 10(b) and 24(2) of the Charter to exclude his statement to the police. On the voir dire, the officer testified that he believed he had authority at common law to detain the appellant in the circumstances, but that he did not immediately inform the appellant of his s. 10(b) Charter rights because it would not make sense to extend the detention if the appellant was unconnected to the residence.

[5] The trial judge ruled that the appellant was detained when the police officer told him to "stop", and that the appellant's rights under s. 10 of the Charter had been violated. However, after holding that R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.) does not stand for the proposition that the police should be precluded, in these circumstances, from asking the question "do you live here?", the trial judge found that exclusion of the appellant's statement would destroy the balance between societal interests and privacy interests. Accordingly, the trial judge refused to exclude the appellant's statement under s. 24(2) and dismissed the appellant's application.

[6] On appeal, the appellant submits that the trial judge erred in failing to exclude his statement. He also seeks leave to appeal his sentence.

[7] Subsequent to the filing of this appeal, this court rendered its decision in R. v. Suberu (2007), 2007 ONCA 60, 218 C.C.C. (3d) 27. The appellant does not seriously contest that his allegation of a breach of s. 10(b) of the Charter is governed by this court's decision in Suberu. However, he maintains that his rights under s. 10(a) were breached and that the trial judge erred in failing to exclude his statement.

[8] It is not contested that the oral statement of the appellant led to his conviction. Nor does the Crown contest that the officer did not comply with of s. 10(a) of the Charter, which requires that a detainee be advised of the reasons for arrest or detention "promptly", and that there was no impediment to the officer's ability to quickly inform the appellant of the reason for stopping him before asking him any questions concerning the residence.

[9] The issue in this case is, therefore, whether the oral statement of the appellant should have been excluded pursuant to s. 24(2) of the Charter.

[10] We conclude that the oral statement made by the appellant should have been excluded from evidence under s. 24(2) of the Charter and would allow the appeal, set aside the appellant's conviction and order a new trial.

ANALYSIS

[11] We wish to note at the outset that this case does not involve issues relating to whether the appellant was detained, whether any such detention was proper, or at what point the s. 10(b) right to counsel crystallizes, as have been explored in such recent cases as R. v. Grant (2006), 2006 CanLII 18347 (ON CA), 209 C.C.C. (3d) 250 (Ont. C.A.); Suberu, supra; R. v. Harris (2007), 2007 ONCA 574, 87 O.R. (3d) 214 (C.A.); and R. v. L.B. (2007), 2007 ONCA 596, 86 O.R. (3d) 730 (C.A.). This case involves only the effect of failing to comply with the informational requirement of s. 10(a) of the Charter.

[12] The above-noted cases did not consider the informational component of s. 10(a) at any length owing to the circumstances of each case. Harris involved a breach of s. 8 of the Charter and this court found that s. 10 was not triggered. In Suberu, Doherty J.A. noted that the accused did not allege a breach of s. 10(a) because it was clear that he knew the general nature of the alleged offence for which he was detained. In L.B., this court determined that the accused was not detained, and as a result s. 10(a) was not triggered. In Grant, the investigative detention of Mr. Grant on the street was prompted by his suspicious behaviour and was unrelated to the investigation of any particular crime.

[13] By contrast, in the present case the police had executed a search warrant and were in the process of investigating a grow-op. The appellant does not contest that he was properly subjected to investigative detention nor does the Crown contest that the appellant was detained. It follows that the questioning of the appellant was in the context of a heightened degree of criminal jeopardy, which demands that particular attention be paid to the informational component of s. 10(a).

[14] The Crown has acknowledged that it would have been simple for the arresting officer to provide the appellant with the information that led to his detention. The officer could easily have said "Police, stop, we're investigating a marijuana grow op in this house." However the Crown submits that the breach of the appellant's s. 10(a) rights was so minor that the evidence of the oral statement ought not to be excluded.

[15] Given the Crown's position, we believe it will assist in understanding our s. 24(2) analysis to first comment on the s. 10(a) Charter right that was violated in this case.

The Informational Requirement of s. 10(a)

[16] The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (H.L.). In Christie, the common law right was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed.

[17] Canadian jurisprudence has since generally affirmed that s. 10(a) of the Charter captures that common law definition. In R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419, this court had occasion to comment on s. 10(a) and its relationship to s. 10(b). At p. 424 this court noted that:

The interest protected by paras. (a) and (b) are not the same. With respect to para. (a), a person is not obliged to submit to an arrest if he does not know the reason for it: Christie et al. v. Leachinsky, [1947] A.C. 573 at pp. 587-8. It is, accordingly, essential that he be informed promptly or immediately of the reasons. On the other hand, the relevant interest protected by para. (b) ... is that of not prejudicing one's legal position by something said or done without, at least, the benefit of legal advice. ... While there may be good reasons why an arrested person's right to be informed of his right to counsel should be "without delay", there is no essential reason why it has to be part and parcel of the s. 10(a) statement, which is really part of the arresting process itself.

[18] This court's pronouncement in Kelly was later affirmed and expanded by the Supreme Court of Canada in R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289. McLachlin J. stated at p. 302:

The right to be promptly advised of the reason for one's detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly ... A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J stated for the court in R. v. Black (1989), 1989 CanLII 75 (SCC), 50 C.C.C. (3d) 1 at p. 12, ... "[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy". In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

[19] Most recently, Iacobucci J. made it clear in Mann, supra at para. 21, that detention, for purposes of s. 10(a) of the Charter, includes individuals who are detained for investigative purposes:

Section 10(a) of the Charter provides that "[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefor". At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention.

[20] It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.). As to the difference in language between s. 10(a) and 10(b), I return to this court's holding in Kelly at p. 424:

First, it may be noted that s. 10(a) uses the word "promptly" and s. 10(b) does not. While semantically there may appear to be little difference between "promptly" and "without delay" I think there is a subtle difference between them. The former is a positive term and, I think, does mean "immediately" while the latter does not quite have this connotation. The injunction of the latter is expressed in negative terms – not to delay, or postpone, which does not necessarily convey the notion of immediacy. Further, if the same temporal requirement was intended to be equally applicable to each clause then it is reasonable to think that the same word or words would have been used in each.

[21] Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

[22] It is conceded that the appellant's s. 10(a) right was violated in this case. The violation of that right gave rise to the very evidence that resulted in the appellant's conviction. Had the information required by s. 10(a) been conveyed to the appellant, he may not have answered the police officer's questions, and the police thus may not have obtained the evidence relied on by the Crown to obtain the appellant's conviction.

Should the Appellant's Oral Statement be Excluded Pursuant to s. 24(2) of the Charter?

[23] Determining the admissibility of unconstitutionally obtained evidence pursuant to s. 24(2) of the Charter requires the court to apply R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.), and consider whether the admission of that evidence would affect the fairness of the trial, the seriousness of the constitutional misconduct and the effect on the administration of justice flowing from exclusion of that evidence.

[24] The decision to exclude evidence pursuant to s. 24(2) is a question of law: see R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 at para. 42 (S.C.C.). In that case, Justice Arbour noted at para. 44 that "judicial adjudication of disrepute ... requires an evaluation of the evidence and the exercise of a substantial amount of judgment which mandates deference by appellate courts".

[25] However, in this case, the trial judge focused on the s. 10(b) violation when undertaking the s. 24(2) analysis and it is not at all clear that he considered the s. 10(a) violation. More importantly, although the trial judge clearly identified the appellant's statement as conscriptive evidence in finding a s. 10 Charter breach, he failed to consider the impact of the admission of such evidence on trial fairness in his s. 24(2) analysis. As a result of this error, and because the facts are not in dispute, this court is in a position to conduct the s. 24(2) analysis.

[26] Both parties agreed that the oral statement offered by the appellant in answer to the questions posed by the arresting officer was conscriptive evidence within the meaning of R. v. Stillman (1997), 1997 CanLII 384 (SCC), 113 C.C.C. (3d) 321 (S.C.C.). Moreover, but for the appellant's oral statement in answer to the questions posed by the arresting officer, there was no evidence at trial capable of connecting him to the house and establishing knowledge and control of the grow operation.[^2]

[27] In Stillman, Cory J. stated at p. 351 that, subject to rare exceptions, "because the accused is compelled as a result of a Charter breach to participate in the creation or discovery of self-incriminating evidence ... the admission of that evidence would generally tend to render the trial unfair." [Emphasis in original.]

[28] Subsequent courts have noted that Stillman does not create an automatic rule of exclusion. For example, in R. v. Elias; R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.), LeBel J. concluded that where an accused was given incomplete information about his s. 10(b) Charter rights but nevertheless understood them and declined to exercise them before making a self-incriminating statement, the effect of the Charter breach was minor and did not go to trial fairness. In Grant, supra, Laskin J.A. concluded that because there were no reliability concerns in relation to the conscriptive real evidence in issue, and because the police conduct that led to its production was not flagrant, the impact on trial fairness of the evidence "would not have been so great that it preclude[d] consideration of the other two Collins factors."

[29] Unlike Orbanski and Grant, in our view, there are no factors present in this case that mitigate the deleterious effect of the conscriptive evidence on trial fairness. The appellant was given no advice about his right to counsel or about why he was being detained. Moreover, nothing about the officer's initial question suggested that answering that question could give rise to criminal jeopardy. In these circumstances, the appellant had no basis for making an informed choice about whether or not to answer the officer's question.

[30] Further, unlike Grant, the statement the appellant gave to the police does not bear the hallmarks of reliability associated with real evidence: see Grant at para. 54. Finally, unlike Grant, there is no suggestion that the officer in this case did not think he had detained the appellant. On the contrary, the officer specifically ordered the appellant to stop. Even assuming that the officer did not intentionally breach the appellant's s.10(a) Charter rights, those rights were engaged and could easily have been respected.

[31] The result in this case is that the question posed by the officer, "Do you live here?", compromised the appellant's right against self-incrimination. Because the answer provided by the appellant, namely, "Umm, yeah, yes", resulted in his conviction, our view is that the admission of this oral statement rendered the appellant's trial unfair. As there are no factors present that mitigated the effect on trial fairness of admitting this conscriptive evidence, we conclude that failing to exclude this statement would bring the administration of justice into disrepute. Therefore, the appellant's statement must be excluded under s. 24(2).

[32] The only other evidence led at trial that was capable of connecting the appellant to the grow operation was the evidence of the arresting officer that he found a key to the residence on the appellant's person. As the trial judge failed to address the appellant's stay motion in relation to that evidence or explain why he chose to disregard it, in our view, the proper result is to order a new trial.

DISPOSITION

[33] In the result, we would allow the appeal, set aside the conviction and order a new trial.

RELEASED: January 24, 2008 "HL"

"J. Simmons J.A./per H.S.L. J.A."

"H.S. LaForme J.A."

"Colin McKinnon J. (ad hoc)"

[^1]: On the s. 10 voir dire only the first question asked by the officer was adduced as evidence. However, the appellant's statement to the police was set out in its entirety at trial.

[^2]: The Crown did lead oral evidence on the s. 10 voir dire to the effect that, following the appellant's arrest, the arresting officer confiscated the appellant's keys and that one of the keys opened a door to the house. The arresting officer did not have a note of this event in his notebook. While he did not think he had retained the key to the house, he could not say what happened to the key. At the opening of trial, all parties agreed that the evidence led on the voir dire would apply on the trial. However, the appellant brought a stay application relating to the failure of police to preserve the key. In his reasons for conviction, the trial judge said, "[g]iven that the stay was dependent on a piece of evidence that the Court does not intend to place any weight on, that motion falls by the wayside."