Court File and Parties

Court File No.: 10-00011787
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

CHOY CHEA, SINHEM SRUN,

KIMSAN HEANG, MENG LIM & VEASNA SAM

INFORMATION CONTAINED HEREIN IS PROHIBITED

FROM PUBLICATION PURSUANT TO SECTION 648 OF

THE CRIMINAL CODE OF CANADA

RULING ON ADMISSIBILITY OF STATEMENT OF VEASNA SAM

BEFORE THE HONOURABLE JUSTICE M.K. FUERST

On June 10, 2013, at NEWMARKET, Ontario

APPEARANCES:

M. Dionne Counsel for the Crown

F. Lyons Agent for Counsel for Choy Chea

K. Graham Counsel for Sinhem Srun

D. Basile Counsel for Kimsan Heang

M. Kerbel Counsel for Meng Lim

F. Davoudi Counsel for the Veasna Sam

...MONDAY, JULY 29, 2013

REASONS FOR RULING

Furest J. (Orally)

Introduction

[1] Members of the Cambodian community were gathered at a Markham banquet hall for dinner and entertainment on the evening of October 16, 2010.

[2] Shortly before midnight there was a fight at the hall. Two men were assaulted and stabbed by a group of males. Vandin Svay was stabbed multiple times and bled to death. Mao Kim also was stabbed, but survived.

[3] The stabbings were captured on surveillance videotape. The police released still images of the individuals involved in the stabbings to the media.

[4] On October 23, 2010, Veasna Sam turned himself in at a York Region Police station. He was arrested for first degree murder. He was interviewed by a police officer on videotape for approximately seven hours.

[5] Crown counsel seeks admission of the videotaped statement at Mr. Sam’s trial on charges of manslaughter and aggravated assault.

[6] Mr. Sam opposes admission of the statement, on both voluntariness and Charter grounds.

The Police Interview of Mr. Sam

[7] In October 2010 Mr. Sam, who came to Canada from Cambodia as a child, was a student in a Computer Technician program at George Brown College.

[8] Mr. Sam turned himself in to the police shortly after 1:00 p.m. on October 23, 2010. He was accompanied by his lawyer, Gary Batasar. He was arrested for first degree murder by Detective William Courtice. Mr. Batasar left the station after telling Detective Courtice that Mr. Sam would not be making a statement and that he had advised Mr. Sam not to make a statement. He gave Detective Courtice his business card and said that he was available if the officer needed to contact him.

[9] Detective Courtice took Mr. Sam to an interview room equipped with video recording equipment. He again told Mr. Sam that he was under arrest for first degree murder and that it was in relation to an incident in Markham. Mr. Sam was given his right to counsel and asked if he wished to call a lawyer “now”. He replied that he did not. He was cautioned. Part way through the caution, he said that his lawyer told him not to say anything and that he did not wish to say anything in answer to the charge. He said that he understood the caution. He was then asked a number of questions to obtain his personal information, which he provided.

[10] Although English is obviously not his first language, Mr. Sam did not request an interpreter. The video recording shows that he was able to speak and understand English.

[11] Detective Courtice introduced Mr. Sam to Detective William Goetz and said that Detective Goetz would be talking to Mr. Sam for “a moment”. In fact, Detective Goetz spent over seven hours questioning Mr. Sam, from 1:58 p.m. until 9:17 p.m.

[12] Detective Goetz gave Mr. Sam the secondary caution. After telling Mr. Sam to call him “Bill”, Detective Goetz began the interview by engaging Mr. Sam in conversation about his family, his birthplace, his previous employment, his community college program, his cell phone, and his relationship with his girlfriend. After several minutes, he told Mr. Sam that the police knew he was actually involved in the fight at the banquet hall, that people had told the police he was involved in the fight, that the investigation was ongoing, and that the police needed to get his side of the story in order to get the full picture of what happened.

[13] Mr. Sam replied that he spoke to his lawyer and he really could not say anything. Nonetheless, Detective Goetz told him that it would not be fair for the police to complete their investigation on him without hearing his side of the story. He said that sometimes the police could not call people into the station without giving them their rights and placing them under arrest but that did not mean the investigation on that person was complete. He said that he needed to hear Mr. Sam’s perspective because he was right there and had “a front row seat”. Mr. Sam responded by asking why the police had issued a warrant for him as a suspect rather than bringing him in as a witness. When the officer said that they knew he was involved but needed to talk to him to find out his position, Mr. Sam replied that the officer was charging him with first degree murder and he did not think that the officer was there to help him. Detective Goetz said that the police did not know Mr. Sam’s side of the story, that they could not bring him into the station and tell him that he was a witness no matter what happened because they knew he was physically involved in the fight, that this was his opportunity to explain his position, and that if he believed he was a witness he should be telling the officer his side of the story.

[14] As these comments were made, Mr. Sam interjected to say that he had hired a lawyer to work for him, that he had total trust that with his lawyer maybe the system would be fair to him, that his lawyer did not want him to speak to the police, and that the police could speak to his lawyer.

[15] For the next several hours, Detective Goetz continuously urged Mr. Sam to tell his side of the story. Mr. Sam repeatedly asserted his right to silence in a variety of ways, including by saying that his lawyer told him not to speak to the police; that he could not answer the question; that he could not say anything; that he needed his lawyer with him in order to answer questions and knew that his lawyer could not be present at the interview; or that the information the police wanted would come from his lawyer.

[16] At times during the interview Mr. Sam admitted that he was at the banquet hall that night, described the nature of the event that brought him there, acknowledged that he had seen his picture on the Internet as a person who was wanted for murder, and said that he then went to a lawyer for help and turned himself into the police.

[17] After Mr. Sam asserted his right to silence more than 100 times, Detective Goetz played the surveillance videotapes of the stabbings and also showed photographs. In response to the officer’s questions, Mr. Sam made incriminating statements, including by identifying himself in the images. He also continued to assert his right to silence dozens more times as the officer persisted in asking him about the events and the other persons involved.

[18] In his testimony on the voir dire, Detective Goetz said that his objective in interviewing any accused person is to get the person to talk to him, then to get the truth and seek that person’s side of the story. Throughout the interview he took the position that this was a bad situation and the best thing for Mr. Sam to do was to tell the truth. He was giving Mr. Sam the option to tell him what happened. Information that Mr. Sam provided could change the nature of the investigation. However, he did not intend to make any promises to Mr. Sam, and told him that he could not make any promises. He did not suggest that if Mr. Sam told him his side of the story he might be a witness rather than an accused. It was Mr. Sam’s position that the police should have brought him in as a witness. He did not intend to give Mr. Sam legal advice or compromise any advice Mr. Sam had received from counsel. Mr. Sam did not take the position that he wanted his lawyer present during the interview, or that he wanted to speak to his lawyer during the interview, but rather that he would not be talking to the police without his lawyer present.

The Positions of the Parties

[19] On behalf of the Crown, Mr. Costain submits that the voluntariness of the statement is established beyond a reasonable doubt. Although the interview was very long, there was no atmosphere of oppression, or trickery that would shock the community. Detective Goetz was entitled to try to persuade Mr. Sam to speak to him, but he told Mr. Sam that he could not make promises. None of the officer’s techniques rose to the level of inducements. Mr. Sam continued to assert that he would not answer questions and that he would speak through his lawyer. Even when he was shown the videotapes he chose to acknowledge what he thought the police already knew, but not to answer other questions. There was no causal connection between the officer’s comments and anything that Mr. Sam said.

[20] With respect to Charter rights, Mr. Costain submits that there were no breaches of ss. 7 or 10(b). The Supreme Court of Canada has given the police great latitude to continue to question a detainee in the face of assertions of the right to silence. Mr. Sam retained the ability to choose whether to speak to the officer at all times. He continued to refuse to answer questions throughout the interview. While Detective Goetz made two unfortunate comments about “team execution” and defence counsel being a “hired gun”, there was no intent to denigrate counsel and the comments had no effect on Mr. Sam. Mr. Sam retained counsel before he came to the police station, he knew why he was under arrest and he was aware of his rights. There was no need for a re-consultation with counsel.

[21] On behalf of Mr. Sam, Mr. Davoudi submits that the officer engaged in an overly long interview with Mr. Sam in which he offered inducements, made promises, resorted to trickery, ignored in excess of 100 assertions by Mr. Sam that he did not wish to say anything, and denigrated defence counsel. The statement was not voluntary and as well, it was obtained in breach of the Charter.

[22] With respect to voluntariness, Mr. Davoudi submits that Detective Goetz interviewed Mr. Sam for a very long time despite Mr. Sam’s repeated invocation of his right to silence, told Mr. Sam that the only way to change his arrest on a warrant for murder was to talk to the police and that he needed to do so “today”, told him that he had an obligation to come in and speak to them, and implied that if he did not talk his already desperate situation would get worse. The officer resorted to trickery by referring to DNA evidence when there was none and implying that co-accused had made statements.

[23] With respect to the Charter, Mr. Davoudi submits that the persistent questioning in the face of Mr. Sam’s many assertions of the right to remain silent and reference to his lawyer’s advice violated s. 7. Additionally, Detective Goetz breached s. 10(b) by repeatedly undermining the advice of counsel by telling Mr. Sam to put his trust in him rather than in his lawyer, and referring to his lawyer as a “hired gun” and his reliance on his lawyer as “team execution”. Based on the three-pronged Grant test, the statement should be excluded under s. 24(2).

Analysis

1. Voluntariness

(a) The Principles

[24] In R. v. Oickle, https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html, [2000] 2 S.C.R. 3 the Supreme Court of Canada at paragraph 69 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 court held that relevant factors include improper inducements such as threats or promises; oppression; lack of an operating mind; and police trickery. There are, however, no hard and fast rules as to the circumstances that will vitiate the voluntariness of a confession. Trial judges must be alert to the entirety of the surrounding circumstances. The analysis must be a contextual one and all relevant factors must be considered: see paragraphs 47 and 68 to 71.

[25] The court held in Oickle that not all inducements to confess are improper. An inducement becomes improper only when it, standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. The court said at paragraph 57 that the most important consideration in all cases is to look for a quid pro quo offer by the police. Where the accused is treated properly by the police, it will take a stronger inducement to render the confession involuntary: see paragraph 71.

[26] Subsequently in R. v. Spencer, https://www.canlii.org/en/ca/scc/doc/2007/2007scc11/2007scc11.html the court clarified that while a quid pro quo offer is an important factor in establishing the existence of a threat or promise, any quid pro quo offer does not automatically render a statement involuntary. It is the strength of the inducement having regard to the particular individual and his circumstances that is to be considered: see paragraph 15.

[27] Additionally, the Supreme Court of Canada held in R. v. Singh, https://www.canlii.org/en/ca/scc/doc/2007/2007scc48/2007scc48.html that the confessions rule encompasses the right to silence, meaning an accused person’s right to make a meaningful choice whether to speak to the police or not. Police persistence in questioning an accused in the face of his repeated assertions of the right to silence may deny him a meaningful choice whether to speak or to remain silent: see paragraphs 47 and 53. 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.

(b) Application of the Principles to This Case

[28] I find that Mr. Sam had an operating mind, and that there was no oppression. The interview proceeded in a conversational tone. Mr. Sam was given water, the use of the washroom on request, and a meal.

[29] I also find that there was no police use of trickery that would shock the community.

[30] I find, however, that there were improper inducements. Early in the interview, Detective Goetz told Mr. Sam that it would not be fair for the police to complete their investigation on him without hearing his side of the story, and added that sometimes the police could not call people into the station without giving them their rights and placing them under arrest, but that did not mean the investigation on that person was complete. This sent a message that if Mr. Sam cooperated by answering the officer’s questions, it might improve his status as a person charged with first degree murder. It was not a single remark made in passing by the officer, but rather a theme that he returned to throughout the interview, and by which he contradicted his assertion that he could not make Mr. Sam promises. The following are some examples of his comments, with reference to their location in the transcription of the interview:

• Page 50: “I can’t make a determination that you’re only a witness until I hear your side of the story”;

• Page 52: “[Y]ou have to show me that you’re a witness. I can’t determine you’re a witness on my own”;

• Page 53: “[T]he truth will set you free, okay. The truth is what we need to get here today...And if you sit down and tell me the truth, then I’ll be able to make a proper determination”;

• Page 69: “[I]f your side of the story establishes to the police that you’re a witness and a witness only okay. Then that’s something we’re gonna have to determine”;

• Page 74: “[T]he last thing I want somebody [sic] is a person that is only a witness to get blamed for something that they didn’t do”;

• Page 94: “[W]e have to know what each other thinks and what each other’s perspective is, okay, because we need to trust each other, okay...I’m not the enemy”;

• Page 95: “[M]y job is to get the truth...the police’s job is to present everything...I’m not presenting a case, I’m presenting the truth”;

• Page 133: “If I really didn’t ah, do anything...And the police ah, were in my mind making a mistake, okay, I would tell them everything I could to make sure that they understand and get the right picture, okay. I would give them clarity”.

[40] The message was reinforced by the officer’s emphasis on the need for Mr. Sam to speak to him then and there:

• Page 82: “Today’s the day you get to tell me what happened there that night...You need to get on board here and tell us what you saw”;

• Page 112: “I need to hear your story today, not six, seven months from now when all the decisions have been made”;

• Page 130: “Today’s your chance to tell, Sam...your chance to tell us now, you can tell later, okay. But by then, I can’t change the decisions that get made today”;

• Page 158: “I’m not going to have you here tomorrow or six months from now, today is the day. Okay. Today we’re investigating this case, okay. Tomorrow could be another case”.

[41] Additionally, the officer improperly left the impression that Mr. Sam had a legal obligation to speak to the police, when he told Mr. Sam the following:

• Page 107: “Now – but there’s an obligation, and the obligation is for people to assist the police in an investigation, not to run away from it, okay. The obligation is for people to come to the police with information, okay, to assist us, okay. Um, we the police should not have to chase people for information, right? People should actually be phoning me and saying Bill, a bad thing happened on Saturday night. I want to help”;

• Page 108: “You knew something bad happened, but you never phoned us...You have that obligation to resolve this for your community and that’s what we’re looking for here today...You have to take some responsibility in this in saying, I’m gonna make sure that the right thing gets done by this community, my community, because it is your community”;

• Page 289: “You walked away from it...You never called the police”.

[42] While Detective Goetz testified that he was referring to a moral obligation to help the police, he agreed that he did not specify that that was his meaning.

[43] I appreciate that Mr. Sam answered some questions, but not others. The questions he answered, however, were admissions, initially about his presence at the banquet hall, and as the interview went on, at the fight itself. By those answers, he both provided the police with information and incriminated himself.

[44] Standing alone, the officer’s remarks may not have constituted inducements of sufficient strength to raise a reasonable doubt about whether Mr. Sam’s will was overborne. They take on significance, however, in the context of a very lengthy interview in which Mr. Sam’s repeated assertions of his right to silence were ignored or undermined by the officer. I will turn next to those assertions.

[45] In R. v. Singh, the accused asserted his right to silence 18 times. On each occasion, the officer either affirmed that Mr. Singh did not have to say anything or explained that he had a duty or desire to place the evidence before Mr. Singh, and continued the interview. The defence conceded that Mr. Singh’s statement was voluntary.

[46] The circumstances in this case, where voluntariness is contested, are significantly different.

[47] Mr. Sam surrendered himself to the police accompanied by his lawyer. The lawyer told the arresting officer that he had advised Mr. Sam not to make a statement and that Mr. Sam would not be making a statement. Mr. Sam personally reiterated this to the arresting officer. Detective Goetz nonetheless proceeded to question Mr. Sam, for seven hours. During the course of the interview, Mr. Sam asserted his right to silence well in excess of 100 times. Rather than responding as the officer did in the Singh case, Detective Goetz forged ahead with his questions and comments, undeterred (see, for example, pages 61, 68, 130, and 222); made comments suggesting that Mr. Sam should ignore his lawyer’s advice to remain silent and put his trust in the police rather than in counsel, as I will set out later in these Reasons; and in answer to Mr. Sam’s question about the duration of the interview, replied that there was no limit and that on other occasions he had continued for as long as nine or twelve hours.

[48] I find that in these circumstances, Mr. Sam’s ability to make a meaningful choice whether to speak to Detective Goetz or not was impaired.

[49] In the context of seven hours of questioning, the combination of some inducements, comments suggesting a legal obligation to speak to the police, and the infringement of Mr. Sam’s right to silence raises a reasonable doubt as to the voluntariness of the statement.

[50] In light of this conclusion, it is not necessary for me to turn to the Charter grounds, but I will do so for the sake of completeness.

2. Right to Silence

[51] It follows from my conclusion on voluntariness that I am satisfied on a balance of probabilities that the statement was obtained in violation of Mr. Sam’s s. 7 right to silence.

3. Right to Counsel

[52] I find that Mr. Sam’s utterances did not constitute requests either to have his lawyer present at the interview or to speak with counsel during the interview.

[53] The live issue, as Crown counsel recognized, is the nature and impact of comments made by Detective Goetz concerning Mr. Sam’s lawyer and the legal advice Mr. Sam received to remain silent.

[54] As the Supreme Court of Canada held in R. v. Sinclair, https://www.canlii.org/en/ca/scc/doc/2010/2010scc35/2010scc35.html, at paragraph 52, if the police undermine the legal advice that a detainee received, this may have the effect of distorting or nullifying it. It undercuts the purpose of section 10(b), and necessitates giving the detainee a further right to consult counsel. See also R. v. Burlingham, https://www.canlii.org/en/ca/scc/doc/1995/1995canlii88/1995canlii88.html.

[55] Mr. Sam repeatedly told Detective Goetz that he had hired a lawyer to protect his interests, that his lawyer advised him not to speak to the police, and that he trusted his lawyer to help him. Throughout the interview, Detective Goetz made comments that clearly conveyed the message that Mr. Sam should put his trust in the police rather than in his lawyer, that he should ignore his lawyer’s advice to remain silent, and that his lawyer either would not do what Mr. Sam thought he would or could not achieve positive results for him. The officer also told Mr. Sam, falsely, that his lawyer could not provide information to the police, as it had to come from Mr. Sam personally.

[56] The following are examples of those comments, again with reference to their location in the transcription of the interview:

• Detective Goetz said that the lawyer could not tell him what Mr. Sam was thinking, and that the lawyer was not at the banquet hall that night (pp. 63 and 132). When Mr. Sam said that he would provide information about what happened that night through his lawyer, Detective Goetz replied sarcastically, “Was he there that night?” (p. 83);

• When Mr. Sam suggested that he would tell the truth about what happened in the presence of his lawyer, Detective Goetz responded, “So, what if your lawyer comes in here and says I don’t want you to tell the truth...so then where are we?” (p. 110), a few minutes later told Mr. Sam, “[Y]ou don’t need a lawyer to tell me the truth” (p. 128), and then said that the lawyer could not tell him the truth or change his mind, but Mr. Sam could (p. 142);

• Detective Goetz acknowledged that Mr. Sam had received some legal advice, but said he had to hear the truth about what happened from Mr. Sam himself so that he could evaluate the situation, and that he could not get the facts from the lawyer (pp. 147 to 150). When Mr. Sam said that the officer would need to get the information from his lawyer, Detective Goetz replied that Mr. Sam did not know that the lawyer would ever give the police the information, that the only guarantee Mr. Sam had was to give Detective Goetz the information himself, and that Mr. Sam had to trust in Detective Goetz (p. 154);

• Detective Goetz suggested that the trust Mr. Sam put in his lawyer was causing him to be in conflict about whether to tell the police his side of the story or not (p. 162);

• Detective Goetz reiterated that the information about what happened could not come from the lawyer, it had to come from Mr. Sam himself. He said that was the only way Mr. Sam could guarantee that the police had the information (pp. 170 to 171), and that the lawyer was not the person investigating the case (pp. 188, 196 and 199);

• When Mr. Sam said that he did not need the police to work for him because he had his lawyer to work for him, Detective Goetz said, “[T]hat’s fine but there’s more of us than him” (p. 202);

• Detective Goetz said he guaranteed that Mr. Sam’s lawyer would not tell him what happened, and that no lawyer had ever given him that information (p. 220);

• Detective Goetz told Mr. Sam not to be “pissed” with the police for getting a warrant for his arrest, that they did it because the lawyer told them Mr. Sam was going to come in and talk to them, but said he would not tell Mr. Sam to turn himself in unless there was a warrant out for him and that Mr. Sam would not speak to the police unless they had a warrant (pp. 229 to 233);

• After Detective Goetz began to play the videotapes to Mr. Sam, he told him to face reality and that his lawyer could not change those videotapes (p. 267);

• Detective Goetz suggested that Mr. Sam was on the same team as his friends. Mr. Sam said that he was with “team Batasar”, referring to his lawyer. The officer replied, “Yeah, that sounds like team execution, that’s the team you’re on right now. You can’t get off this team unless you speak to me” (p. 295);

• When Mr. Sam said that he would tell the police his side of the story if his lawyer wanted him to, Detective Goetz replied, “Do you think he’s really gonna do that?” and said that he wanted Mr. Sam to make decisions for himself (p. 300);

• When Mr. Sam once again told Detective Goetz to talk to his lawyer, the officer referred to the lawyer pejoratively as a “hired gun” (p. 317).

[57] I reject Detective Goetz’s explanation that he did not intend his remarks to undercut the legal advice Mr. Sam received. It is evident from the number and variety of the comments that their purpose was to undermine Mr. Sam’s confidence in his lawyer and the legal advice he received, in order to obtain a statement from him about the events at the banquet hall.

[58] The comments made by Detective Goetz were highly improper. During the hours of questioning, he never gave Mr. Sam the further right to consult counsel that the Supreme Court of Canada held necessary in such circumstances. For these reasons, I am satisfied on a balance of probabilities that Mr. Sam’s s. 10(b) right to counsel was violated.

4. Section 24(2)

[59] Even if I consider the s. 10(b) breach standing alone, applying the test set out in R. v. Grant, https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html, I am satisfied on a balance of probabilities that the statement should be excluded under s. 24(2).

[60] The officer’s conduct in making the comments to Mr. Sam about counsel and the legal advice he received was both repetitive and deliberate. The Charter-infringing conduct was serious, and the court needs to dissociate itself from it to avoid a negative impact on the justice system. The officer’s conduct undermined Mr. Sam’s s. 10(b) right to counsel and so had a serious impact on his Charter-protected interests. Finally, the statement is not necessary for a trial on the merits. The truth-seeking function of the criminal trial process would be better served by exclusion of the evidence.

[61] My conclusion on s. 24(2) is even stronger if the breaches of both s. 10(b) and s. 7 are considered.

Conclusion

[62] I am not satisfied beyond a reasonable doubt of the voluntariness of Mr. Sam’s statement to Detective Goetz. It is not admissible by operation of the common law confessions rule.

[63] Even if it were so admissible, I am satisfied on a balance of probabilities that the statement was obtained in breach of s. 10(b) of the Charter, and that it should be excluded under s. 24(2).

[64] I note that no specific objection was raised to admission of Mr. Sam’s utterances to Detective Courtice, nor do I see any basis for exclusion, if the utterances have probative value.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Eleni Makos, C.R., certify that this document is a true and accurate transcript of the recording of R. v. CHEA, SRUN, HEANG, LIM & SAM, in the Superior Court of Justice, held at Newmarket, Ontario, on July 29, 2013, taken from Recording No. 4911-403-20130729-091514, which has been certified in Form 1 by Eleni Makos, C.R.

September 23, 2013 ________________________

Eleni Makos, C.R.

TRANSCRIPT ORDERED: July 29, 2013

TRANSCRIPT COMPLETED: September 23, 2013

ORDERING PARTY NOTIFIED: September 25, 2013