ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10942
DATE: 2012-04-27

B E T W E E N:

HER MAJESTY THE QUEEN

M. Dykstra, for the Public Prosecution Service of Canada

Respondent

• and -

VAN MANH TRUONG

R. Ellis, for the Applicant

Applicant

HEARD: April 24, 2012

RULING ON THE ADMISSIBILITY OF THE ACCUSED’S STATEMENTS TO THE POLICE

A.J. GOODMAN J.

[ 1 ] This is an application to exclude certain statements made by the applicant. The applicant submits that his s. 10 (b) rights were violated and hence his statements and utterances to the police from the moment of his detention and arrest to the time he arrived at the police station ought to be excluded.

[ 2 ] Van Manh Truong is charged with possession for the purpose of trafficking contrary to s. 5(3) of the Controlled Drugs and Substances Act .

[ 3 ] On October 14, 2010, Mr. Truong was arrested by police after having picked up a package from a UPS store in London. The package in question was believed to have contained a significant amount of marihuana and had been the subject of surveillance by police.

[ 4 ] Upon his immediate arrest, and either prior or subsequent to the police advising Mr. Truong of his rights to counsel, Mr. Truong made certain statements or utterances with respect to his involvement with the impugned package. The manner of what was said and how it was prompted is the area of greatest dispute and the subject of this application.

The Position of the Parties

[ 5 ] The applicant submits that he was detained from the moment of his first personal contact with the police at the vehicle stop at 1:30 p.m. on October 14, 2010. Mr. Truong was removed forcibly by police in what might be described a “drug or high risk” takedown. Mr. Truong was taken to the ground and later brought to an area nearby and away from traffic. Mr. Truong submits that he was in a state of shock and was overwhelmed by the situation. He claims that he was asked questions about his actions and involvement with the package that he had just picked up. Mr. Truong responded to questions posed by police before and after he was given his rights to counsel and caution. Mr. Truong requested to speak to a lawyer and his first opportunity to do so was at the police station.

[ 6 ] The Crown submits that the police acted entirely appropriately in the circumstances. There is no issue that Mr. Truong was read his rights to counsel and cautioned. Mr. Truong understood what was read to him and responded accordingly, in that he wished to speak with counsel. The Crown submits that Mr. Truong was provided with his rights to counsel at the earliest opportunity following the securing of the scene and after officers removed Mr. Truong from a high traffic area. Due to the situation, the police were not able to give Mr. Truong, applicant an opportunity to contact counsel in private until he was taken to the police station.

[ 7 ] The Crown submits that following the rights to counsel and Mr. Truong’s request to contact a lawyer, the police ceased all attempts to elicit information from him.

[ 8 ] The Crown argues that despite not being questioned by the police, the applicant continued to speak and provided various statements to the police. The Crown submits that these statements were not elicited by the police and thus there is no breach of section 10(b) of the Charter .

[ 9 ] The Crown acknowledges that should this Court find a breach of Mr. Truong’s s. 10(b) rights then the statements or utterance ought to be excluded based on the jurisprudence under s. 24(2) of the Charter .

Evidence on the Voir Dire :

[ 10 ] The Crown called four witnesses on the voir dire and the applicant testified on his own behalf. While I have considered all of the evidence, for the purposes of this application, only the relevant points arising out of the testimony is reflected in this ruling.

[ 11 ] Constable Losier of the RCMP was the arresting officer. He testified that he was briefed by Constable Robert Palanuk about a UPS package containing marihuana coming from Burnaby to London to the attention of Mr. Van Truong. At approximately 1:30 p.m. he and other officers attended the UPS store at Wonderland and Commissioners Road. While listening to the police radio and conducting surveillance, he was directed to the position of the subject after Mr. Truong placed the package in his car. Mr. Truong started to drive off where he was stopped and arrested at the exit of the parking lot.

[ 12 ] Mr. Truong was immediately taken out of his vehicle and placed on the ground and was advised that he was under arrest for possession of a controlled substance for the purpose of trafficking. Mr. Truong was escorted outside of the area of traffic where he was then read his rights to counsel and cautioned.

[ 13 ] Cst. Losier testified that the only questions he asked of Mr. Truong was whether he understood the rights as read to him and, later, a question about how much currency he had on him. Mr. Truong replied to the questions. Cst. Losier testified that he remained by Mr. Truong’s side during the whole time prior to transport. There was no opportunity to make a call to a lawyer while at the scene. Det/Cst. Mills confirmed much of Cst. Losier’s description of events. Officer Palanuk testified about the question he posed to Mr. Truong to confirm the accused’s identity and address. The manner in which this question was posed in relation to Mr. Truong’s driver’s licence and the response received was at variance between the versions offered by Constables Palanuk and Losier.

[ 14 ] In reference to the statements made by Mr. Truong, Cst. Losier testified as follows:

Q. And did you talk to him, after giving him his rights to counsel and caution, uh, and cautioning Mr. Truong, did you have any conversations with him?

A. He - Mr. Truong mainly had a conversation with us…

Q. Okay.

A. …uh, where he was saying how – and I’ll just refer to my notes here, um, saying that, uh, he should not have accepted to take the package from someone else, uh, that he claimed that he does not do such things usually and that he has no criminal record.

THE COURT: You have to slow down Officer, I can only write so fast. He should not have accepted taking the package from?

S. LOSIER: Uh, that he should not have accepted to take the package from someone else.

THE COURT: Someone else, go on.

S. LOSIER: Um, he claimed he does not do such things usually and that he has no criminal record. He also said, um, that a guy would give him $500 to take the package and bring it to him. And also, he said that, uh, he did not get paid the $500 yet and that he didn’t want to say who gave the package to him, since he feared for his safety in case he divulged the information.

Later in the Crown’s case, on the same issue, Det/Cst. Mills testified that:

Q. Okay. And after he was chartered and warned, what happened?

A. Um, at that point, uh, Mr. Truong stated that he did not – sorry, he should not have agreed to pick up the package for someone else and advised he was getting paid $500 to pick up the package. Uh, he advised that he knew that it did not feel right, but needed the money.

THE COURT: I’m sorry, can you do it a little slower for me, I’m trying to take some notes here.

A. MILLS: Sorry, Your Honour.

THE COURT: If you don’t mind. So, he should not have picked up the package for someone else? Should not have agreed to pick up the package for someone else?

A. MILLS: Should not have agreed to pick up the package. I don’t have it in quotations…

THE COURT: Okay.

A. MILLS: …it’s from, just from what I had remembered at the time. Uh, I just noted, agreed to pick up the package for someone else and advised he was getting paid $500 to pick up the package. Uh, he advised that he knew it did not feel right, but needed the money. A short time after that….

Q. I’m just going to stop you there, Officer.

A. Sorry.

The Applicable Legal Principles

[ 15 ] Section 10(b) of the Charter reads:

Everyone has the right upon arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[ 16 ] In their seminal decisions, the Supreme Court of Canada recently reviewed the law and the relevant factors in this area in the cases of R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 and R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460. In Suberu , the majority referred to the “difficult task of defining the constitutional line where police actions, in the context of dynamic encounters with members of the public, amount to a detention and effectively trigger the protection afforded to detainees under ss. 9 and 10 of the Canadian Charter of Rights and Freedoms .” The majority commented that drawing that line “requires courts to balance individual constitutional rights against the public interest in effective law enforcement”.

[ 17 ] It is settled law that once a detained person requests the opportunity to speak with counsel, the police are required to refrain from eliciting information from the accused. This activity has been referred to in several judgments as the “hold-off” period. It is well established that once the police have discharged their obligation to inform a detained person of their right to retain and instruct counsel without delay, provided the detainee asserts his or her right to counsel and is reasonably diligent in exercising it, the police must provide the detainee with a reasonable opportunity to contact counsel and refrain from eliciting evidence from the detainee in the meantime.[^1]

[ 18 ] In R. v. Bartle , the Supreme Court postulated that the purpose of the right to counsel is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill those obligations.

[ 19 ] Section 10(b) of the Charter imposes the duties on state authorities who arrest or detain a person, without which a person’s right to counsel has no meaning. A person who is detained is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty. For a person’s right to counsel to be effective, the detainee must have access to the advice of a lawyer before he or she is questioned or otherwise required to provide evidence.

[ 20 ] A person can only be said to waive their right to counsel if the Crown Attorney can establish that the person had full knowledge of their s. 10(b) Charter rights and the effect a waiver would have on those rights and then waived their rights. An individual does not implicitly waive their right to counsel by answering the questions of the police.[^2]

Analysis

[ 21 ] In this case, the parties agree that Mr. Truong’s detention commenced from the moment the police blocked Mr. Truong’s vehicle at approximately 1:30 p.m. There is no issue with respect to when the triggering of a detention occurred in this case. Therefore, from the moment an individual is detained, s. 10(b) of the Charter is engaged, and the applicant bears the onus of establishing that his 10(b) rights were violated.

[ 22 ] I am not of the view that a s. 10(b) violation arises in this case by virtue of delay in implementation of the right. The accused was arrested for possession for the purpose at 1:30 p.m. He was processed at the scene and taken to the police station at 1:48 p.m. There was no opportunity for the police to provide the accused with privacy at the scene in order to effect his rights to counsel. Despite the able argument of counsel, I am not convinced that there is a corresponding obligation on the police to go into various businesses or stores in order to secure a phone for the accused at the very earliest opportunity. In my view, the police are not obliged to do so for a variety of reasons including the security of the detainee, officer safety, control of the scene and privacy concerns.

[ 23 ] I am not persuaded that individual detainees have the right and ought to be granted permission to call their counsel of choice from the back of the police cruiser should he or she be in possession of a cell phone. In most cases there may exist legitimate concerns about the privacy of the communication from the back of police cruiser. However, while there may not be an obligation to find a private phone or to allow an accused to use his own cell phone in the back of a police car, there is a duty on the police to refrain from soliciting information from detainees about the matter being investigated once an accused has requested to speak with counsel.

[ 24 ] Given the scene in this case and the circumstances of the arrest, it made sense to wait until Mr. Truong arrived at the station where he could speak to counsel in private, I am not satisfied on a balance of probabilities that there was a s. 10 (b) violation in failing to facilitate access to counsel at the scene or by some means in a police vehicle prior to transport. Nonetheless, the police had an obligation to be diligent in discharging the implementational component of the accused’s s. 10 (b) rights.

[ 25 ] The issue arises with respect to the information gleaned from the statements or utterances provided by Mr. Truong at the scene of the arrest.

[ 26 ] At approximately 1:30 a.m. Mr. Truong was arrested. While the exact timing of the officer’s reading of Mr. Truong’s rights to counsel and caution is uncertain, and whether or not there was a language issue in the recitation of the rights, it appears that the informational component of the rights to counsel was satisfied. The applicant does not offer a complaint with respect to what he understood when read his rights to counsel or the caution. The applicant’s argument stems from the actions of the police in not holding off questions to him prior to their duties of implementation of the rights to counsel.

[ 27 ] I have also heard evidence about other officers at the scene. Mr. Truong testified that there was a “big guy”(officer) with a beard who was present and who asked him questions. In cross examination, Det/Cst. Mills admitted that there were several other police officers present at the time of the arrest and confirmed several of those officers by name. While it is not necessary for the Crown to present all officers on the voir dire who may have had limited or no contact with the applicant, it is apparent to me that there is a gap missing in the evidence. I accept the evidence of Mr. Truong in this regard to the point where I am unable to discount that another unidentified officer may have been involved with the applicant during his arrest and engaged in questioning.

[ 28 ] There are also some problems with Cst. Losier’s testimony. My sense of his evidence is that he seems to be somewhat cavalier with the requirements and duties of the police with respect to the implementation of the rights to counsel. I am also concerned that while he claimed he was right next to the applicant while under detention and awaiting transport, his recollection of what was said, when it was said and at what times it was said, and who else may have had contact with the applicant is not convincing. The other officers who testified for the crown are unable to shed any more light on this issue.

[ 29 ] In essence, the Crown would have me subscribe to the fact that Mr. Truong, for whatever reason, provided a stream of consciousness and gushed forth various statements without any elicitation or prompting by the police. What is concerning is the fact that these sentences or utterances do not seem to flow together and are rather disjointed. I have no temporal basis to establish when these statements were made and how they were made in relation to each other. For example, Cst. Losier testified that “he [Mr. Truong] claimed that he should not have accepted to take the package from someone else; that he claimed that he does not do such things”; [that] “he has no criminal record”; and then goes on to suggest “[that] a guy would give him $500 to take the package and bring it to him”. Mr. Truong was then purported to have stated “he did not get paid the $500 yet” and added “that he didn’t want to say who gave the package to him, since he feared for his safety in case he divulged the information”.

[ 30 ] It seems to me that there are several topics intertwined in the statements which appear to be responsive to questions rather than the non-elicited free flow of information or even at its highest, a form of res gestae .

[ 31 ] Further, I have concerns about the general approach of the officers in dealing with this accused. While one officer’s actions do not necessarily dictate another’s approach, Cst. Harder testified that, while on route to the station, she asked questions of the accused about the incident. This officer did not have any knowledge of the accused’s status, his prior request to speak with counsel or any other information. The Crown fairly conceded that statements provided during transport to the station ought to be excluded; however, my concerns about this type of questioning suggest a careless disregard for the rights of the accused.

Section 10(b) threshold

[ 32 ] I am persuaded that the s. 10(b) violations were committed by Officer Losier and other unidentified officers at the scene. Whether by inexperience, exuberance based on a successful drug bust, accident or carelessness, the officers appear to disregard their duties to refrain from seeking information before and after the accused’s request to speak to a lawyer. I do not accept that Mr. Truong just “rambled on” and provided all of the statements without prompting.

[ 33 ] Except for statements confirming identity, all other statements or utterance made by the accused in response to the questions posed throughout his time at the scene and during transport were causally related to the violations. I am satisfied that the threshold test under s. 10(b) is met for those statements.

Section 24(2) Analysis

[ 34 ] The parties agreed that should I find a breach under s. 10(b) of the Charter , the Court is not required to conduct a s. 24(2) analysis. It is conceded that the statements or utterances would be excluded under that branch of the Charter . However, it is my view that notwithstanding the parties’ concession on this point, a review of the applicable principles under section24(2) is warranted.

[ 35 ] Section 24(2) provides that where evidence “was obtained in a manner” that violates the Charter that evidence “shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

[ 36 ] When any particular item of evidence is being considered for exclusion pursuant to s. 24(2) the first question is whether that evidence was obtained in a manner that violated the Charter . This is often referred to as the threshold test. In R. v. Papadopoulos, [2006] O.J. No. 5404, at para. 179 , Dawson J. summarized the governing legal principles on this issue as follows:

The first question is whether the impugned evidence was "obtained in a manner" that infringed or violated the Charter . This threshold issue requires that the entire relationship between the breach and the evidence be examined to determine whether there is a nexus between the two. The court should consider the temporal, contextual, tactical and causal relationship, if any. A temporal link will figure prominently in the assessment, particularly where the discovery of the evidence and the breach occur during a single transaction. However, the presence of a temporal connection is not determinative if the connection between the evidence and the breach is remote in the sense of tenuous. Although causation is a factor, a strict causal nexus is not required as this would unduly restrict the availability of the remedial provisions of the Charter . See R. v. Strachan (1988), 1988 25 (SCC) , 46 C.C.C. (3d) 479 (S.C.C.); R. v. Grant (1993), 1993 68 (SCC) , 84 C.C.C. (3d) 173 (S.C.C.) and R. v. Goldhart (1996), 1996 214 (SCC) , 107 C.C.C. (3d) 481 (S.C.C.), where these factors and their role in the analysis are discussed. As noted in R. v. Plaha (2004), 2004 21043 (ON CA) , 188 C.C.C. (3d) 289 (Ont. C.A.) at para. 45 :

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct.

[ 37 ] Assuming that the threshold test is met the court must go on to consider whether the admission of the evidence would bring the administration of justice into disrepute in all the circumstances. The Supreme Court of Canada restated the approach that should be taken in R. v. Grant , at para. 71, as follows:

…When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[ 38 ] Section 24(2) is concerned with maintaining the integrity of and public confidence in the justice system in the long term. “It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute”: [^3]

The Seriousness of the Charter Infringing State Conduct

[ 39 ] As specified in Grant at paras. 72-75, the court must evaluate the seriousness of the state conduct that led to the Charter violation. One of the main purposes for such an inquiry is to preserve public confidence in the rule of law by carefully evaluating the gravity of the offending state conduct. Charter -offending state conduct may fall along a continuum from trivial or minor violations which minimally undermine public confidence in the rule of law, to conduct which exhibits a wilful or reckless disregard for Charter values, which would severely undermine public confidence in the justice system. As indicated at para. 72 of Grant , the more severe or deliberate the state misconduct, the greater the need for the court to dissociate itself from such conduct by excluding the evidence.

[ 40 ] I conclude that the s. 10(b) violations were very serious violations of important and well understood Charter rights. As the cases of Manninen , Ross , and Bartle illustrate, there is nothing novel about the situation the police faced here. The violations were at the very minimum, careless, in the sense that Cst. Losier or other unidentified officers knew the significance of the questions he was asking and that the accused had asserted his right to counsel and had not yet had an opportunity to exercise it. While it might make sense to wait until he arrived at the detachment so he could have privacy speaking to counsel, that was also of benefit to the police who would not be required to try to put the accused in touch with counsel before arriving at the more controlled environment of a police station. In these circumstances it was obviously completely improper for the police to ask questions related to the investigation. The police either knew, or ought to have known, that they were violating his rights.

[ 41 ] Such conduct viewed over the long term would have a very serious negative impact on the integrity of the justice system and public confidence in the rule of law. There is a strong impetus for the court to dissociate itself from such obvious and serious violations of the Charter .

Impact on the Charter Protected Interests of the Accused

[ 42 ] As indicated in Grant , the focus is on “the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused”. The court is to evaluate "the extent to which the breach actually undermined the interests protected by the right infringed". In Grant, the Supreme Court instructs trial judges to "look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests". The more serious the negative impact on the protected interests, the greater the likelihood that the admission of the evidence will bring the administration of justice into disrepute.

[ 43 ] It is now very clear from a long line of Supreme Court of Canada authorities and its prodigy, that s.10(b) serves the right of the accused to make an informed choice whether to speak to the authorities. Consequently, it is related to the right to remain silent protected by s. 7 of the Charter and to the overarching principle that a person need not incriminate themselves.[^4]

I conclude that the impact in this case was very serious prior to the point where the applicant arrived at the police station.

Society’s Interest in an Adjudication on the Merits

[ 44 ] The principle under this heading is described in Grant at para. 79 :

Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov , 1990 45 (SCC) , [1990] 2 S.C.R. 1199 , at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [Emphasis in original.]

[ 45 ] The question under this category is "whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth seeking goal of the criminal trial".[^5] This consideration is influenced by the reliability of the evidence sought to be excluded as a result of the Charter violation.

[ 46 ] As stated in Grant at para. 81:

The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence.

[ 47 ] At para. 83 of Grant, the Supreme Court mentions that the importance of the evidence to the prosecution’s case is another factor to consider under this heading. The court explains that this factor can cut both ways.

[ 48 ] The third stage of inquiry under s.24(2) has regard to society’s interest in adjudicating the case on its merits. In R. v. MacMillan , 2011 ONSC 3305 , McMillan J. noted that the third stage of inquiry under Grant is influenced by three factors: a) the reliability of the impugned evidence; b) the importance of the evidence to the Crown’s case; and c) the seriousness of the offence charged.

[ 49 ] In that case, the issue was the admissibility of the results of several breath analysis tests that had been obtained without regard to the accused’s s.10 (b) rights. McMillan J. found that the evidence was both relevant and reliable and would accommodate the discovery of truth. He went on to note that the question for the court is whether “the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking evidence.” Here, the evidence was essential to the prosecution; the exclusion of the evidence would likely be insurmountable. However, this factor could not justify inclusion by itself. The focus for the court is on the effect that the inclusion or exclusion of evidence would have on the long term repute of the justice system. Looking at the third factor, McMillan J. (undoubtedly referring to Grant ) endorsed the concept that the seriousness of the offence can “cut both ways”.

[ 50 ] Physical evidence is generally seen to be reliable even if obtained in a manner that breaches the accused’s s. 10 (b) rights. However, as illustrated in R. v. Mohamud , 2010 ONSC 5305 , a statement is less likely to be reliable when obtained in a manner that breaches a charter right. In that case, the accused made a statement which was temporally linked to a breach of s.10 (b). Pomerance J. noted that:

In most cases, a statement obtained following a Charter violation will be considered less than reliable. Unlike physical evidence, such as a weapon or drugs, or scientific evidence, such as DNA analysis, a statement does not possess any inherent reliability. A statement may be true or untrue. The risk of unreliability is increased when the statement is obtained following a charter violation.

[ 51 ] In this case, as conceded by the Crown, the inadmissibility of this evidence is not fatal to the Crown’s case. In my view, the reliability concern is connected to the Charter violations and diminishes society’s interest in having this disputed evidence available to be taken into account in adjudicating this case on its merits. I would also note that it appears that there will be other evidence for the jury to consider. The statements in dispute are not the only or even the most significant evidence to be adduced by the Crown against the accused.

[ 52 ] The reliability factor is directly related to the importance of the evidence in question to the Crown’s case. There is a degree of unreliability associated with the evidence collected by Losier owing to the fact that it was not electronically recorded and was recorded in his notebook. While all notes taken at the time of the event by police are not in and of themselves inherently unreliable, based on the evidence on the voir dire from Cst. Losier, it is clear to me that while admittedly the comments are not verbatim, there appears to have been some difficulty in capturing the wording and, more importantly, the context of the applicant’s statements. When the opportunity to make notes arose, I am not satisfied that they were truly reflective of the statements or utterances made by Mr. Truong. I also note that I do not have any evidence as to when those notes were made following the arrest and detention of the applicant.

[ 53 ] Clearly the public has an interest in seeing serious crimes prosecuted, but also has an equal interest in ensuring that the system is operating fairly, especially when the penal consequences for the accused are severe.

[ 54 ] As I have discussed, Mr. Truong’s statements do not flow as a stream of consciousness. We also have the accused’s evidence on the voir dire, and it is fair to say that the accused confirms much of what Det/Cst. Mills and Cst. Palanuk testified to. Based on the evidence on the voir dire , I am of the view that there is considerable potential for unreliability in the evidence Cst. Losier collected during the time he spent with the accused.

[ 55 ] It is important that I mention that I do not accept everything the applicant testified to. There are problems with his credibility in relation to certain aspects of his evidence on the voir dire . However, on the points I have just been discussing I am unable to say that I do not believe his evidence. I am aware that the burden is on the accused on the s. 24(2) issue on a balance of probabilities but I am persuaded that the burden has been discharged.

[ 56 ] I also must mention that I not finding that Cst. Losier is untruthful in his evidence. I am concerned, however, that in all the circumstances he may not have been able to understand and accurately recall critical details of what Mr. Truong said. There is a real danger his evidence may be unreliable, although unintentionally so. I am simply articulating the basis for my concerns and explaining how that is linked to the Charter violations.

Conclusion

[ 57 ] The majority in Grant commented that with respect to the s. 24(2) analysis there no overarching rule governs how the final balance is to be struck and that mathematical precision is not achievable. When I balance the considerations I have described under the three Grant inquiries, I conclude that the accused has established on a balance of probabilities that all of the statements made to all of the officers’ on October 14, 2010 from 1:30 p.m. up and to the time of the arrival at the police station must be excluded. Given the very serious nature of the violation under the first Grant factor and having regard to my conclusions with regards to the other Grant factors, the balance tips substantially in favour of exclusion under s. 24(2) of the Charter .

[ 58 ] In view of the foregoing, all utterances by the accused made during the period of time I have identified are inadmissible at the instance of the Crown.

“Justice A.J. Goodman”

A.J. Goodman J.

Released: April 27, 2012

COURT FILE NO.: 10942
DATE: 2012-04-27

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - VAN MANH TRUONG Applicant

RULING ON THE ADMISSIBILITY OF THE ACCUSED’S STATEMENTS TO THE POLICE
A.J. GOODMAN J .

Released: April 27, 2012

[^1]: R. v. Manninen , 1987 67 (SCC) , [1987] 1 S.C.R. 1233 ; R. v. Ross , 1989 134 (SCC) , [1989] 1 S.C.R. 3 ; and R. v. Bartle , 1994 64 (SCC) , [1994] 3 S.C.R. 173 .

[^2]: Bartle , at paras. 18, 29 and 41 . See also R. v. Manninen ,at para. 25 .

[^3]: Grant at para. 68

[^4]: R. v. Hebert , 1990 118 (SCC) , [1990] 2 S.C.R. 151 ; R. v. Jones , 1994 85 (SCC) , [1994] 2 S.C.R. 229 ; R. v. White , 1999 689 (SCC) , [1999] 2 S.C.R. 417 ; R. v. Singh , 2007 SCC 48 , [2007] 3 S.C.R. 405 ; R. v. Sinclair , 2010 SCC 35 .

[^5]: R. v. Kitaitchik (2002), 2002 45000 (ON CA) , 166 C.C.C. (3d) 14 (Ont. C. A.) , at para. 47 ; cited with approval in Grant .