Court File and Parties
Court File No.: CR-15-50000659-0000 Date: 2017-04-13 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Thanh Tung Phan, Applicant
Counsel: Jay Spare, for the Crown, Respondent Richard Posner, for the Applicant
Heard: January 27, 31, February 1, 2017
Ruling on an Application to Exclude a Post-Arrest Statement
B. P. O’Marra J.
Overview
[1] The applicant was arrested and charged with the first degree murder of Peter Nguyen on April 10, 2014. He was interviewed by police on video after his arrest. The interview included references to a shooting other than the one related to Peter Nguyen. He was committed for trial on November 5, 2015. At a judicial pretrial on February 24, 2016, pretrial motions were scheduled for several days in November 2016. A trial date was set for January 16, 2017.
[2] The Crown filed a pretrial application related to the admissibility of the post-arrest interview. By a Notice of Response dated October 27, 2016, counsel for the applicant conceded the voluntariness of the interview but sought to exclude certain portions depending on rulings related to the surveillance evidence and gang affiliation. There was no defence application to exclude any part of the Canadian Charter of Rights and Freedoms filed before or during the pretrial motions in November 2016.
[3] By January 20, 2017, the jury had been selected and the Crown began calling witnesses. On January 27, 2017, counsel for the applicant sought leave to file a Charter motion on short notice to exclude the post-arrest interview. The issue related to questions by the police related to the shooting death other than that of Peter Nguyen. The timing of the Charter application was unfortunate. However, I agreed with counsel that the issue should be litigated and ruled on before there was any further reference to it before the jury. In his opening address, the Crown had referred briefly, and without objection, to parts of the post-arrest interview.
[4] The Crown prepared and filed responding materials. Counsel for the Crown and defence agreed that evidence and submissions on the Charter application could be completed on January 31, 2017. On February 1, 2017, I delivered a brief oral ruling dismissing the application. The trial has been concluded. These are my reasons on the Charter application.
The Voir Dire
[5] The evidence focused on the video-recorded interview of the applicant on April 10, 2014 by Detective Robert North of the Toronto Police Service. The applicant had been arrested for the first degree murder of Peter Nguyen with an offence date of February 4, 2014. He was advised of the reason for his arrest and his right to counsel. Prior to being interviewed by Detective North, the applicant exercised his right to contact counsel. Early on in the interview the applicant confirmed that he was content with the advice he had received from counsel. Throughout the extended interview it was evident that the applicant clearly understood that he was not obliged to answer any of the questions put to him. He chose to answer some questions. To other questions he either gave no answer or stated that he did not wish to answer. Early on in the interview, the applicant was also told that if he wished to speak to counsel again at any time that would be facilitated.
[6] In the first part of the interview, Detective North asked a series of questions and made comments in regard to a separate homicide investigation. This related to the shooting death of Michael Nguyen in March 2013. The applicant denied any involvement in that incident or the death of Peter Nguyen. Detective North told the applicant that he was a person of interest in the death of Michael Nguyen.
[7] The Crown did not seek to tender the portion of the video interview related to the Michael Nguyen homicide. The applicant submitted that he should have been told of his new or added jeopardy related to that incident before those questions were asked. The applicant submits that he was deprived of the right to make an informed choice about whether to speak to police or consult further with counsel. The failure to properly advise the applicant tainted the rest of the interview related to the Peter Nguyen homicide.
[8] The applicant did not testify or call any evidence on the voir dire. The only witness to testify was Detective North.
[9] Detective North testified that he was involved in the investigation related to the shooting death of Michael Nguyen in March 2013. By January 2014 there were no firm leads but there were two suspects: Jerry Phan (the brother of the applicant) and another person. The applicant was not a suspect but was viewed as a person of interest based on his connection to his brother. Both were associated to a violent street gang known as the Chin Pac that had been involved in a series of retaliatory shootings against a rival gang known as the Asian Assassinz. Michael and Peter Nguyen were both associated to the latter gang.
[10] On February 24, 2014, a judicial authorization pursuant to Part VI of the Criminal Code of Canada, R.S.C. 1985, c. C-46 was issued. It related to investigations of drug and violent crimes, including the shooting of Michael Nguyen. The investigative plan in the application included efforts to stimulate communications between Thanh Phan and his brother Jerry related to the Michael Nguyen shooting. The authorization was still in effect on April 10, 2014 when the applicant was arrested for the murder of Peter Nguyen.
[11] The plan for the post-arrest interview of the applicant on April 10, 2014 was to first ask questions about the Michael Nguyen homicide. Detective North testified that he did not have grounds to charge or even view the applicant as a suspect on that homicide. He hoped to stimulate the applicant to communicate with his brother and capture any evidence that might ensue. The applicant was not told he would be arrested related to Michael Nguyen and he has never been charged with any offences related to that matter.
[12] The burden of proof rests with the applicant to establish that there were violations of sections 10(a) and (b) of the Charter. He chose not to testify on the application. There is no evidence of the subjective impact on him of the questions and comments related to the Michael Nguyen homicide.
The Duty to Further Advise of the Right to Counsel
[13] There is a duty on the police to advise an accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the outset. The decision of the accused whether to contact counsel may be affected by the seriousness the charge he or she may then face. R. v. Evans, [1991] S.C.R. No. 31, at para. 47.
[14] In R. v. Sinclair, 2010 SCC 35, the Court considered circumstances where additional developments in the course of an investigation may trigger further obligations on the police related to a detainee who has already been advised of his right to counsel and exercised that right:
[26] The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice.
[47] Section 10(b) should be interpreted in a way that fully respects its purpose of supporting the detainee’s s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so. However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation.
[48] The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate.
[49] The police, of course, are at liberty to facilitate any number of further consultations with counsel. In some circumstances, the interrogator may even consider it a useful technique to reassure the detainee that further access to counsel will be available if needed. For example, in the companion case of R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, a skilled interrogator commenced the interview by making it clear to the detainee that he would be free at any time during the interview to stop and call a lawyer. The question here is when a further consultation is required under s. 10(b) of the Charter. For the purpose of providing guidance to investigating police officers, it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required. The categories are not closed. However, additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose.
1. New Procedures Involving the Detainee
[50] The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary: R. v. Ross, [1989] 1 S.C.R. 3.
2. Change in Jeopardy
[51] The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation. See Evans and Black.
3. Reason to Question the Detainee’s Understanding of His Section 10(b) Right
[52] If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consult counsel, to ensure that the purpose of s. 10(b) is fulfilled: Prosper. More broadly, this may be taken to suggest that circumstances indicating that the detainee may not have understood the initial s. 10(b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk to a lawyer. Similarly, if the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10(b). In order to counteract this effect, it has been found necessary to give the detainee a further right to consult counsel. See Burlingham.
(c) The General Principle Emerging From the Cases
[53] The general principle underlying the cases discussed above is this: where a detainee has already retained legal advice, the implementational duty on the police under s. 10(b) includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.
[54] The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.
[55] The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.
Analysis
[15] This is not a case where the applicant was denied further consultation with counsel. He was specifically told that if he wished to make a further call to counsel that would be facilitated. He clearly understood his right to remain silent throughout the entire interview process. This demonstrated that the purpose of s.10(b) of the Charter had been fulfilled. There is no evidence that the portion of the interview related to Peter Nguyen was tainted by the Michael Nguyen portion that preceded it.
[16] Detective North reasonably viewed the applicant as a person of interest related to the Michael Nguyen homicide. His relationship to his brother Jerry, who was a suspect, and to the same violent gang, made him a potential source of relevant information. The Information to Obtain that led to the Part VI authorization on February 24, 2014 specifically referred to interviewing Thanh Phan in order to obtain evidence related to his brother Jerry Phan. The applicant was not a suspect and the police clearly lacked reasonable grounds to detain or arrest him in regard to the Michael Nguyen homicide. In the particular circumstances, there was no obligation on the police to further advise him of his right to counsel related to that matter.
[17] In cross-examination, Detective North denied the suggestion that the initial questions related to the Michael Nguyen homicide were meant to “soften up” the applicant for the later questions related to the Peter Nguyen homicide. This suggestion may have been relevant on a voluntariness voir dire but that issue was conceded by the applicant. In any event, the robust exercise of his right to remain silent numerous times does not support the suggestion.
Result
[18] RESULT: The application is dismissed.
B. P. O’Marra J.