THIS RULING WAS MADE AN EXHIBIT

COURT FILE NO.: CR-18-4273

DELIVERED ORALLY: Friday, September 20, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHENG SUN

Ilana Mizel, for the Crown

Frank Miller, for the Defence

HEARD: August 12, 13, and 14, 2019

REASONS FOR RULING ON PRE-TRIAL APPLICATIONS

Howard J.

Overview

[1] The accused, Mr. Cheng “Chris” Sun, is charged with one count of second degree murder, contrary to s. 235(1) of Criminal Code,[^1] in connection with the death of his wife, Weqiong Du-Sun, on June 28, 2017.

[2] Mr. Sun’s trial, by judge and jury, is scheduled to commence Tuesday, October 15, 2019.

[3] Both the Crown and the defence have brought certain pre-trial applications, seeking the following relief:

a. The Crown seeks a ruling on the voluntariness of the statement made by Mr. Sun in his interview with a detective of the Ontario Provincial Police (“OPP”) on June 29, 2017, the morning after his arrest for the murder of his wife.

b. The defence seeks a ruling that the police did not properly comply with their duties under the informational component of Mr. Sun’s rights to counsel as guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms[^2] inasmuch as, the defence submits, Mr. Sun’s difficulties with the English language are such that the police had a duty to take extra steps to determine if he understood his s. 10(b) rights. The defence submits that the police failed in that duty and that, accordingly, there should be an order pursuant to s. 24(2) of the Charter excluding from admission into evidence at trial the statement made by Mr. Sun to the police on June 29, 2017.

c. The Crown seeks a ruling on the admissibility at trial of a double-hearsay statement contained in a text message exchange that occurred between the deceased and her daughter on the morning of the day she died, in the course of which the deceased told her daughter that she “had a big quarrel with him again, and he said that he had long wanted to kill me.” The Crown seeks to attribute these comments to the accused and seeks to have the double-hearsay statement admitted for the proof of its contents.

[4] These applications were heard by way of a blended voir dire on August 12, 13, and 14, 2019, in the course of which the court heard evidence from six witnesses, all being OPP officers, as well as the audio-recording of Mr. Sun’s initial telephone call to 911 dispatch on the evening of June 28, 2017, and the audio/visual-recording of his interview with OPP Detective Paul Bawden on the morning of June 29, 2017. The defence called no evidence on the voir dire.

[5] The court was assisted in the conduct of the voir dire by the presence of two Mandarin interpreters who provided English-translation services to Mr. Sun.

Factual Background

[6] I do not propose to summarize at length the evidence of each of the witnesses who testified before me at the voir dire. There is no need to repeat here all of the details of their testimony. However, the parties should know that while I have considered all of the evidence presented at the voir dire, my decision deals with the particulars of the material evidence only insofar as necessary to determine the legal issues in question or provide sufficient context for the determination of those issues.

[7] Mr. Sun was born in China on March 11, 1966, and was 51 years of age at the time of the incident in question. He came to Canada in 2002 with his first wife, from whom he subsequently divorced. He is a Canadian citizen and has a Canadian passport. However, his first language is Mandarin Chinese, not English.

[8] As I have referenced, Mr. Sun and the deceased were married. Ms. Du-Sun was born in China; she was not a Canadian citizen. The couple met in Canada through a dating website but were married in China. They resided together as husband and wife in an apartment in Leamington. They did not have children together, but they both have children from their previous relationships.

[9] In particular, Mr. Sun has a daughter from his first marriage. Similarly, Ms. Du-Sun was the mother of a daughter from a previous relationship. Her daughter’s name is Yu Huang, and she currently resides in China.

[10] Mr. Sun and the deceased were the operators of a small restaurant or café locally known as Break Time Corner, located at 66 Talbot Street East in Leamington. Mr. Sun had purchased the business about two years before, in or about August 2015.

[11] Turning to the incidents in question, on Wednesday, June 28, 2017, at 8:22 p.m.,[^3] Mr. Sun placed a telephone call to 911 dispatch from his cell phone. Mr. Sun asked the dispatch operator to send police officers to 66 Talbot Street East in Leamington, being the address of his restaurant. In the course of the 911 call, Mr. Sun told the dispatch officer that he had killed his wife. Indeed, he said that, or indicated that, at least four times.

[12] OPP officers responded to the 911 emergency call immediately. Indeed, the first officer to respond, Police Constable (“P.C.”) Kyle Durocher, arrived on scene at the restaurant while Mr. Sun was still on his cell phone speaking with the 911 dispatch officer, and P.C. Durocher’s voice can actually be heard interacting with Mr. Sun at the end of the audio-recording of the 911 call.

[13] As P.C. Durocher arrived at the address of the Break Time café, he observed Mr. Sun exiting the restaurant through the front door, holding a cell phone in his left hand. P.C. Durocher drew his service-weapon, and instructed Mr. Sun to place the phone down, put his hands up, and not to move.

[14] Mr. Sun was “very compliant” with P.C. Durocher’s directions and did not resist arrest. P.C. Durocher advised Mr. Sun that he was being placed under arrest for murder. The officer testified that Mr. Sun did not respond. The time of arrest was 8:28 p.m. according to the officer’s notes.

[15] P.C. Durocher then placed Mr. Sun in handcuffs, cuffing both hands behind Mr. Sun’s back. As he did so, P.C. Durocher observed dried red blood on Mr. Sun’s clothing.

[16] P.C. Durocher then read Mr. Sun his rights to counsel incident to arrest from his standard-issue card that he keeps in his police notebook. P.C. Durocher read aloud in his testimony before me the text of what he read to Mr. Sun that night, as follows:

I am arresting you for first degree murder.

It is my duty to inform you that you have the right to retain and instruct counsel without delay.

You have the right to telephone any lawyer you wish.

You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. It’s 1-800-265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now.

Do you understand?

Do you wish to call a lawyer now?

[17] The evidence of P.C. Durocher was that after he asked Mr. Sun the first question, whether he understood his rights, he paused to wait for Mr. Sun’s answer. Mr. Sun responded without hesitation, saying “yes,” indicating that he understood. At that point, P.C. Durocher did not have any concern that Mr. Sun may not have understood his rights as read to him.

[18] P.C. Durocher also testified that when he asked Mr. Sun the second question, whether he wished to contact a lawyer, Mr. Sun simply did not answer that question. P.C. Durocher asked the question twice, but he got no answer from Mr. Sun either time.

[19] P.C. Durocher then proceeded to read Mr. Sun a caution, to the effect that Mr. Sun did not have to say anything to the police officers. Again, P.C. Durocher paused to ask Mr. Sun if he understood, and Mr. Sun responded in the affirmative, indicating that he understood, and he then proceeded to make an utterance, that, “I killed my wife.”

[20] P.C. Durocher estimated that his entire exchange with Mr. Sun, from arrest, to reading him his rights and the caution, to Mr. Sun’s utterance, lasted less than a minute.

[21] P.C. Durocher then placed Mr. Sun in the back of his police SUV cruiser.

[22] P.C. Durocher then left Mr. Sun in the cruiser to go speak with P.C. Chhieu Seng, who was just then arriving on scene.

[23] From his interactions with Mr. Sun, and noticing his accent, P.C. Durocher believed that Mr. Sun’s first language was probably not English. From Mr. Sun’s appearance and his accent, the officer believed Mr. Sun was likely of Asian origin. P.C. Durocher testified that throughout his dealings with Mr. Sun, Mr. Sun spoke to him in English only, he never told the officer that he did not understand anything the officer was saying to him, and he never asked for any kind of interpreter.

[24] P.C. Durocher testified that he had no concern that Mr. Sun did not comprehend what the officer had said to him. However, given his concern that English might not be Mr. Sun’s first language and his inability to truly assess Mr. Sun’s level of proficiency in the English language, P.C. Durocher went to speak with P.C. Seng to have P.C. Seng reiterate to Mr. Sun his rights to counsel and caution because P.C. Durocher believed – mistakenly – that P.C. Seng was fluent in Mandarin.

[25] P.C. Seng testified that he arrived on scene at 8:29 p.m. P.C. Seng, a 20-year veteran with the OPP, and now a Sergeant with that force, described his ethnic origin as “half Chinese and half Cambodian”; he speaks English and Cambodian (Khmer) but not Mandarin. When P.C. Seng arrived on scene, he instructed other officers to cordon off the area. He was approached by P.C. Durocher, from whom he understood that the accused had been arrested, placed in custody in the back of P.C. Durocher’s POLICE cruiser, and given his rights to counsel.

[26] Based on his conversation with P.C. Durocher, P.C. Seng did not know what the first language of the accused was. P.C. Seng then walked over to P.C. Durocher’s cruiser and had him roll down the rear window so that he could have a conversation with Mr. Sun. P.C. Seng introduced himself to Mr. Sun, and Mr. Sun introduced himself as “Chris.”

[27] P.C. Seng asked Mr. Sun: “do you understand why you are under arrest?” Mr. Sun immediately replied: “I kill my wife.” (P.C. Seng made specific notations of his question and Mr. Sun’s response in his notebook.)

[28] At that point, given Mr. Sun’s response, P.C. Seng asked Mr. Sun to stop talking, and the officer then explained the secondary caution to Mr. Sun in simple terms, that is, that Mr. Sun did not have to talk to the officer but that anything he did say to the police could be used in evidence against him. P.C. Seng asked Mr. Sun if he understood the caution, and Mr. Sun responded, “I don’t understand.” (Again, P.C. Seng made a specific notation of Mr. Sun’s exact response in his notebook.)

[29] It was at that point that P.C. Seng was struck by the demeanour of Mr. Sun. That is, the officer observed that Mr. Sun was very calm and was sitting in the police cruiser with a blank stare on his face. P.C. Seng testified that Mr. Sun’s blank stare stuck in his mind, and he made a note of it.

[30] P.C. Seng then became more concerned for the well-being of the accused. He asked Mr. Sun: “are you okay?” Mr. Sun immediately responded: “I just kill my wife.” (Once more, the officer made a specific notation of the exact question posed and answer given.)

[31] At that juncture, P.C. Seng increased his efforts to establish a rapport with the accused. He asked Mr. Sun whether “Chris” was his English name, and Mr. Sun answered in the affirmative. He asked what his Asian name was, and Mr. Sun answered, “Cheng.” The officer then asked him what his last name was, and Mr. Sun replied, “Sun.”

[32] P.C. Seng went on to explain the rights to counsel in simple terms, paraphrasing the terms in everyday language. The evidence of P.C. Seng, who, again, is a 20-year veteran officer, was that there have been many times in his years of experience where a detainee has indicated that he or she does not fully understand their rights to counsel or the cautions given them, and so when Mr. Sun indicated that he did not understand the secondary caution, P.C. Seng followed the same practice that he has developed over his career and explained the terms in simple terms to make sure that the detainee understood the concepts and rights being explained to them. P.C. Seng’s best recollection is that he spent three to five minutes explaining his rights to Mr. Sun.

[33] While P.C. Seng admitted in cross-examination that he did not specifically ask Mr. Sun if he understood his simple-term explanation of the secondary caution, P.C. Seng testified that he was satisfied from his exchanges with Mr. Sun that he understood his rights and what the officer was saying to him. P.C. Seng testified that if he had any concerns about a detainee’s ability to understand English, he would stop all conversation with the detainee and make efforts to contact a lawyer who spoke the detainee’s language, or contact duty counsel to see if they knew someone who spoke the detainee’s language, or arrange for an interpreter who speaks the detainee’s language to be available to the detainee at the police detachment.

[34] Following his simple-term explanations to Mr. Sun, P.C. Seng asked him: “do you want to call a lawyer of your choice or a free lawyer who I can get for you. It is called duty counsel.” Mr. Sun replied: “I don’t need a lawyer.” (Once again, P.C. Seng made a specific notation of the question asked and the response received in his notebook.) It was clear to P.C. Seng that Mr. Sun did not want to speak to a lawyer at that time.

[35] With that, P.C. Seng ended the conversation with Mr. Sun at the scene of the restaurant.

[36] Looking back on his interactions with Mr. Sun, P.C. Seng testified that throughout their dealings, they both spoke only in the English language, that he understood what Mr. Sun was saying to him, and Mr. Sun in turn understood him, that he had no concerns regarding the ability of Mr. Sun to understand the English language, and that Mr. Sun’s English was clear but he merely spoke with an Asian accent.

[37] Detective Constable (“D.C.”) Scott Doherty also gave evidence on the voir dire. D.C. Doherty was one of the investigating officers on duty on June 28, 2017. After he heard the initial dispatch about the incident at 8:24 p.m. that night, D.C. Doherty attended at the premises of the Break Time Corner restaurant.

[38] As it so happened, D.C. Doherty had previously been to the Break Time café numerous times over the years, as it was a popular place for lunch, although the Detective believed that it had changed ownership several times and that he had gone only once or twice during that period when Mr. Sun was the owner of the restaurant.

[39] D.C. Doherty testified that during his previous attendances at the restaurant, he had only minimal interactions with Mr. Sun, only to order his lunch and the like, that he conversed with Mr. Sun in the English language only, and that he neither experienced nor observed any language issues in dealing with Mr. Sun, other than he noted that Mr. Sun spoke with an Asian accent.

[40] On the night in question. D.C. Doherty arrived at the Break Time restaurant after Mr. Sun had already been arrested and placed in custody. The Detective was briefed by officers on the scene, including P.C. Durocher and then P.C. Seng, who advised the Detective that, inter alia, they had dealt with the accused in the English language and that the accused had been read his rights to counsel. The Detective asked the arresting officer P.C. Durocher and P.C. Seng if the accused understood his rights to counsel, and they both replied in the affirmative.

[41] D.C. Doherty testified that based on his previous limited dealings with Mr. Sun at the restaurant, he had never had any concerns regarding any language barriers with Mr. Sun; however, that night of the incident, given the gravity of the scenario, D.C. Doherty wanted to make sure that there were no language barriers in the police officers’ dealings with the accused.

[42] Accordingly, out of an abundance of caution, and basically because he “wanted to see for [himself]”, D.C. Doherty decided to approach the accused to make sure that he knew why he was under arrest, understood his rights to counsel, and to assess Mr. Sun’s English language abilities.

[43] Accordingly, D.C. Doherty attended at P.C. Durocher’s police cruiser and spoke with Mr. Sun as he was seated in the back of the cruiser, through the rolled-down window. The Detective started by asking the accused his name, and Mr. Sun replied, saying his name was “Chris.”

[44] D.C. Doherty proceeded to ask Mr. Sun, in due course, whether he understood his legal rights as explained to him by the other officers, and Mr. Sun quickly responded “yes, I understand,” and then Mr. Sun added, unsolicited, that, “I killed my wife.”

[45] D.C. Doherty then asked Mr. Sun if he wished to speak with a lawyer, because the Detective had been told by P.C. Durocher that when he had asked Mr. Sun that question, he did not get an answer; and D.C. Doherty also did not get a response from Mr. Sun to that question either.

[46] D.C. Doherty also made note of what he considered to be Mr. Sun’s strange demeanour, in that, Mr. Sun was staring off in the distance, not exhibiting any appreciable emotion, not really acknowledging the Detective, and appeared “oddly calm” to the Detective given the gravity of the offence and of what he had just told the Detective, i.e., that he had killed his wife.

[47] That said, D.C. Doherty had no concern that Mr. Sun did not understand what the Detective was saying to him. The Detective considered that Mr. Sun’s failure to directly answer his question whether Mr. Sun wished to speak with a lawyer was a product of his oddly calm demeanour at that point, rather than anything to do with language comprehension, which suggestion the Detective rejected. D.C. Doherty noted that there was never any hesitation in Mr. Sun answering his questions, there was never any look of confusion or puzzlement on Mr. Sun’s face when the Detective was speaking with him, and there was nothing that would lead him to believe that Mr. Sun did not understand what the Detective was saying to him.

[48] Rather, D.C. Doherty was of the view that Mr. Sun’s oddly calm demeanour was simply a product of what he was going through at the time.

[49] D.C. Doherty did not want to attempt to solicit more information from Mr. Sun at the time. He candidly testified that he wanted Mr. Sun to speak with a lawyer because that is just “way easier in my world.”

[50] D.C. Doherty had no further direct dealings with Mr. Sun during the investigation.

[51] At 8:40 p.m. that night, Constables Durocher and Seng left the scene of the Break Time Corner restaurant in P.C. Durocher’s police cruiser, with P.C. Durocher driving, P.C. Seng in the front passenger seat, and Mr. Sun in custody in the rear seat. They transported Mr. Sun to the OPP Leamington detachment.

[52] It is common ground that at some point in the investigation on the night of June 28, 2017, OPP officers entered the Break Time Corner restaurant and found the body of Ms. Du-Sun lying on the floor of the kitchen in the restaurant. The body of Ms. Du-Sun appeared to have received trauma injury to the back of the head. A claw hammer was found lying next to the body.

[53] Constables Durocher and Seng arrived at the Leamington detachment at 8:42 p.m.

[54] The officers then escorted Mr. Sun to the cell area and placed Mr. Sun on a seat in the booking room area. As Mr. Sun sat in the booking room area, P.C. Seng observed that he had dried blood on both of his pant legs and on his shoes. He also took note of a small cut on Mr. Sun’s right forearm. P.C. Seng also observed that Mr. Sun continued to have the same blank stare that had so struck him at the scene of the restaurant. At one point, P.C. Seng observed Mr. Sun’s chest “palpitating very hard,” and he told Mr. Sun to calm down. P.C. Seng then asked P.C. Durocher to read Mr. Sun his rights to counsel again.

[55] Accordingly, at 8:50 p.m., P.C. Durocher once again read Mr. Sun his rights to counsel by reading the standard text from a white placard that was posted on the wall in the cell area. The text was the same as that which P.C. Durocher had read to Mr. Sun earlier that night upon his arrest at the scene of the restaurant.

[56] Again, P.C. Durocher asked Mr. Sun if he understood his rights to counsel, and Mr. Sun answered “yes.” The evidence of P.C. Seng was that he repeatedly asked Mr. Sun if he understood his rights, and Mr. Sun replied in the affirmative, nodding his head up and down.

[57] The evidence of P.C. Durocher was that he then asked Mr. Sun if he wished to call a lawyer, and Mr. Sun responded, “I killed my wife. Why do I need a lawyer?” P.C. Durocher testified that Mr. Sun went on to repeat, “I killed her. I killed her.”

[58] The evidence of P.C. Seng was that he asked Mr. Sun if he understood why he was under arrest, and he responded, “I kill my wife. Why do I need a lawyer?” P.C. Seng testified that he then asked Mr. Sun if he wished to speak with a lawyer at that time, and Mr. Sun replied that, “I killed her. I killed her.”

[59] P.C. Seng testified that he then proceeded to explain, again, the secondary caution in simple terms, advising Mr. Sun that he did not have to say anything to P.C. Seng or his partner and that whatever he did say could be written down and used as evidence against him. P.C. Seng then asked Mr. Sun if he wished to speak with a lawyer, and Mr. Sun declined.

[60] Subsequently, P.C. Seng and P.C. Durocher spoke with P.C. Todd Bell, who at the time was assigned to the major crime unit. As of the date in question, P.C. Bell had served as police officer for 25 years, first with the Leamington police force since 1992, and subsequently with the OPP upon the amalgamation in 2010.

[61] Earlier that night, P.C. Bell had been on the scene at the Break Time Corner restaurant, arriving at 8:36 p.m. He was advised by D.C. Doherty that Mr. Sun had been arrested, had been given his rights to counsel, and was in custody in the back of the police cruiser. P.C. Bell observed Constables Durocher and Seng leave the scene to transport Mr. Sun to the Leamington detachment, and P.C. Bell himself then returned to the detachment, at 9:00 p.m.

[62] In speaking with Constables Seng and Durocher, P.C. Bell was told that Mr. Sun had been given his rights to counsel but that he did not wish to speak with a lawyer. P.C. Bell also learned that while Mr. Sun understood and spoke in English, it was not his first language.

[63] Reflecting on that, P.C. Bell was of the mind, given his experience over the years, that it would be preferable if Mr. Sun at least spoke with duty counsel. P.C. Bell was concerned that Mr. Sun had been charged with “the most serious crime,” and he believed that not only would it benefit Mr. Sun if he spoke with duty counsel to get some advice but, also, looking ahead, it may facilitate the court process to make sure that Mr. Sun understood his rights and possibly remove any issue about his rights to counsel.

[64] With that in mind, at 9:22 p.m. that night, P.C. Bell went to speak with Mr. Sun in the holding cells. P.C. Bell recalled Mr. Sun’s demeanour as being very calm, almost stoic, displaying no visible emotion on his face. P.C. Bell introduced himself to Mr. Sun and, being in plainclothes, he made a point of advising Mr. Sun that he was a police officer with the OPP.

[65] P.C. Bell then told Mr. Sun that he was going to call duty counsel for Mr. Sun “unless he wished to talk to another lawyer,” to which Mr. Sun replied, “no.” P.C. Bell understood Mr. Sun to mean that he did not wish to speak with another lawyer. P.C. Bell testified that Mr. Sun never asked to speak with another lawyer.

[66] P.C. Bell testified that his entire conversation with Mr. Sun was conducted in English; that Mr. Sun never expressed to P.C. Bell that he did not understand anything the officer was saying; that Mr. Sun never asked the officer to clarify anything; and that it appeared to P.C. Bell that Mr. Sun understood everything the officer was saying.

[67] P.C. Bell then proceeded to telephone the 1-800 duty counsel line. P.C. Bell explained that at that hour of night, the process was that the police would leave a message on the 1-800 line, indicating the name of the accused, the charge in question, and the time of arrest. P.C. Bell left a message with all of that information, and he also added that a Chinese interpreter was needed.

[68] At 9:43 p.m., P.C. Bell received a call back from duty counsel, one C.P. Mazgarean, who asked, for the purposes of the Chinese interpreter, whether Mr. Sun spoke Mandarin or Cantonese. P.C. Bell did not know the answer, so he returned to the holding cells and asked Mr. Sun, who indicated that he spoke Mandarin. P.C. Bell then relayed that information to duty counsel.

[69] At 9:45 p.m., P.C. Bell removed Mr. Sun from his holding cell and escorted him to the facility’s privacy booth, where Mr. Sun could have a confidential conversation with counsel. P.C. Bell got back on the line with duty counsel and was advised that they were getting in touch with a Mandarin interpreter.

[70] At 9:47 p.m., P.C. Bell was advised that duty counsel had secured a Mandarin interpreter, who was on the line, at which point P.C. Bell transferred the call to Mr. Sun in the privacy booth.

[71] At 10:04 p.m., the telephone call between Mr. Sun, duty counsel, and the interpreter ended, and P.C. Bell returned Mr. Sun to his cell. The evidence of P.C. Bell was that Mr. Sun said nothing to the officer as he was being escorted to his cell. He expressed no dissatisfaction with the phone call, and he never asked to speak with another lawyer.

[72] The following morning, Thursday, June 29, 2017, Mr. Sun was interviewed by Detective Constable Paul Bawden at the Leamington detachment. The interview commenced at 9:35 a.m. and concluded at 11:14 a.m. The interview was videotaped, and the video was played in its entirety during the testimony of D.C. Bawden on the voir dire. A transcript of the interview was also filed on the application.

[73] At the outset of the interview, D.C. Bawden once again read to Mr. Sun his rights to counsel and cautions. D.C. Bawden then explained those concepts in plain terms. D.C. Bawden repeatedly asked Mr. Sun if he understood his rights, and Mr. Sun repeatedly confirmed that he did. Mr. Sun confirmed that he understood he was under arrest for murder,[^4] and that he had spoken with a lawyer the day before.[^5]

[74] It is common ground that during his interview with D.C. Bawden, Mr. Sun made a number of inculpatory statements, including, in particular, that he had killed his wife, Ms. Du-Sun.[^6]

[75] The interview was conducted entirely in the English language.

[76] Each of the officers who gave evidence on the voir dire testified that they made no threats to Mr. Sun, engaged in no harmful physical contact with him, made no promises to him, and offered him no inducements.

[77] As I have said, Mr. Sun did not testify on the voir dire, as is his right. As a result, however, I would simply note that there is no direct evidence before me from Mr. Sun that he did not understand his rights to counsel or anything else said to him by the police officers because of any language barrier or any other reason.

Issues

[78] The following issues arise on this application:

a. Has the Crown established beyond a reasonable doubt that the statements made by Mr. Sun to the police on June 29, 2017, were voluntary?

b. Has Mr. Sun established on a balance of probabilities that he was denied his rights to counsel under s. 10(b) of the Charter by reason of a failure of the police to properly comply with their informational duties?

c. If there was a violation of Mr. Sun’s rights under s. 10(b) of the Charter, should his statement to the police be excluded from admission at trial pursuant to s. 24(2) of the Charter?

d. Should the text statements made by the deceased to her daughter, Ms. Huang, be admitted for the truth of their contents on the basis of a principled exception to the hearsay rule?

The Voluntariness Application

Has the Crown established beyond a reasonable doubt that the statements made by Mr. Sun to the police on June 29, 2017, were voluntary?

[79] I do not intend to spend a great deal of time in my analysis of the issues on the Crown’s voluntariness application, largely because of the concessions made by Mr. Miller on behalf of the defence during oral argument.

[80] That is, at the outset of the oral argument on the voir dire, Mr. Miller very candidly and fairly conceded that, given the evidence before the court, he did not have a “significant argument” in opposition to the Crown’s voluntariness application regarding the statements made by Mr. Sun during his interview with D.C. Bawden on June 29, 2017.

[81] Mr. Miller also acknowledged that, of course, there can be no issue regarding the voluntariness of the statements made by Mr. Sun during his 911 call on June 28, 2017.

[82] The legal requirements of the contemporary confessions rule are not in dispute. The rule provides that in order to adduce a statement by an accused person to a person of authority, the Crown must prove beyond a reasonable doubt that the statement was voluntary. The functional and contextual approach of the Supreme Court of Canada to the common law confessions rule was well described by my colleague Pomerance J. in R. v. Carter, in the following terms:

In R. v. Oickle … and R. v. Spencer …, the Supreme Court of Canada advocated a functional and contextual approach to the common law confessions rule. This approach must take account of the techniques used by police in questioning a suspect. It must take account of the suspect’s characteristics, including those that might make him or her more vulnerable to police suggestion and influence. It must take account of the extent to which the police conduct – be it a promise, a threat, trickery, or alleged oppression – gave rise to a “quid pro quo”, or a suggestion that the suspect would receive a benefit in exchange for speaking. Finally, and perhaps most importantly, it must take account of the strength of the alleged threat or inducement and whether it caused the suspect’s will to be overborne. The central question is whether the suspect was deprived of his ability to make an effective and voluntary choice about whether or not to speak. [Citations omitted.][^7]

[83] In the instant case, there is no evidence that any threats, promises, or inducements were made by the police to Mr. Sun to obtain his statement to D.C. Bawden. There is no evidence of oppression or police trickery. Mr. Sun demonstrated throughout the interview that he was in possession of an “operating mind.” There is no evidence that Mr. Sun’s will was somehow overborne. On the contrary, D.C. Bawden treated Mr. Sun with courtesy and respect throughout their encounters. I should think that was apparent to Mr. Sun as well, as the two men shook hands at the conclusion of the interview.

[84] Fundamentally, this is not a case where the accused was denied his right to silence. Rather, this is a case where the accused freely and voluntarily chose not to exercise that right.

[85] On the evidence before me, I conclude that the Crown has met its onus. There is nothing in the evidence that raises a reasonable doubt as to the voluntariness of Mr. Sun’s statements to the police. I find that the statements made by Mr. Sun to D.C. Bawden during his interview on June 29, 2017, were voluntary and, subject to my conclusion on the s. 10(b) Charter application, are otherwise admissible at trial.

The s. 10(b) Charter Application

Has Mr. Sun established on a balance of probabilities that he was denied his rights to counsel under s. 10(b) of the Charter by reason of a failure of the police to properly comply with their informational duties?

[86] Mr. Sun argues that he was denied his rights to counsel under s. 10(b) of the Charter by reason of a failure of the police to properly comply with their informational duties and, in particular, to take extra steps to determine if he understood his s. 10(b) rights given his difficulties with the English language.

[87] On behalf of Mr. Sun, Mr. Miller submits that the police “blinded themselves to the obvious language problem and failed to take any effort to make certain that the applicant fully understood his section 10(b) rights.”

[88] In oral argument, Mr. Miller placed particular (but not exclusive) emphasis on two statements made by Mr. Sun at the outset of his interview with D.C. Bawden on June 29, 2017, as follows:

a. In response to D.C. Bawden’s statement to Mr. Sun that the Detective was going to read Mr. Sun his rights to counsel and cautions again because he wanted to make sure that Mr. Sun understood them, Mr. Sun said: “My English not good I just a little bit the the the the the I know.”

b. Shortly thereafter, as D.C. Bawden went on to advise Mr. Sun that everything in the interview room was being audio- and video-recorded and that, pointing out the cameras to Mr. Sun, the police could see the Detective and Mr. Sun on those cameras, Mr. Sun responded: “yeah yeah but I I’m not sure I can not understand all all those.”

Legal principles

[89] Subsection 10(b) of the Charter guarantees the right to counsel in the following terms:

Everyone has the right on arrest or detention …

(b) to retain and instruct counsel without delay and to be informed of that right; …

[90] It is the accused who bears the burden of persuading the reviewing court that his or her Charter rights have been infringed and that admission of the evidence would bring the administration of justice into disrepute. The standard of proof is the civil standard of the balance of probabilities.[^8]

[91] There is no real disagreement as between the Crown and the defence as to the applicable legal principles. Ms. Mizel for the Crown conceded that, as appropriately framed by Mr. Miller, the issue before the court turns on the informational component of s. 10(b).

[92] Ms. Mizel also conceded, very fairly, that whether or not an accused person was advised of his or her s. 10(b) rights in a meaningful and comprehensive manner is a live issue whenever the s. 10(b) rights are read in a language that is not the accused’s first language of origin.

[93] The concept was explained by the Ontario Court of Appeal in R. v. Vanstaceghem, a case where an impaired driver was not advised in French of his right to counsel in circumstances that indicated that his understanding of French was much better than his English. In that case, the officer gave the accused a breathalyzer demand in English, and the accused responded in English that he did not understand. In affirming the acquittal of the accused, the Court of Appeal held that:

The crucial question, which was a question of law, was whether the accused had been advised of his rights pursuant to s. 10(b) of the Charter in a meaningful and comprehensible manner. The circumstances were unusual. Having regard to the officer’s knowledge that the respondent was French, that the respondent certainly was not at ease with the English language, in that he did not understand the breathalyzer demand, I am of the opinion that special circumstances existed which required the officer to reasonably ascertain that the respondent’s constitutional rights were understood by him.[^9]

[94] In R. v. Xhango,[^10] Gage J. of the Ontario Court of Justice had occasion to review the relevant caselaw and summarize many of the principles concerning the treatment of the right to counsel in circumstances involving language difficulties, as follows:

Where special circumstances exist that would reasonably alert the officers informing the accused of his right to counsel that there may be a linguistic difficulty with comprehending the right to retain and instruct counsel without delay the officers are required to take reasonable steps to ascertain that the constitutional rights being given are actually understood;

The questions of the existence of special circumstances, the adequacy of the steps taken to ensure actual comprehension, and whether or not he was afforded meaningful and comprehensible access to counsel are questions of mixed fact and law;

Special circumstances may arise where it is clear to the officer that an accused persons first language is not English and there is difficulty comprehending the demand for samples of breath.[^11]

Other indicia of special circumstances may include:

1. A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect “I don’t speak the best English”:[^12]

2. The necessity of speaking slowly to an accused who speaks English “a little bit”:[^13]

3. A negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused:[^14]

4. The failure to honour the accused’s request for an interpreter or an officer or a lawyer who speaks his or her first language:[^15]

5. Knowledge that the first language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel:[^16]

A necessary concomitant of the right to counsel is the opportunity to meaningfully exercise that right. Effective communication is the cornerstone of the solicitor-client relationship. Evidence of a working knowledge of day-to-day English usage will not necessarily extinguish the concern for meaningful comprehension. Police will proceed at the peril of a successful prosecution where there are indicia of a language comprehension problem and an interpreter is neither offered nor made available:[^17] [Citations omitted.]

Analysis

[95] The Crown conceded that “special circumstances” existed in the circumstances of the instant case that required the police to take reasonable measures to ensure that the accused understood his rights to counsel. In the case at bar, it was apparent to essentially all of the police officers who interacted with Mr. Sun that English was not his first language.

[96] On the evidence before me, I find that the officers involved did take reasonable steps to ascertain that the constitutional rights being provided and explained to Mr. Sun were actually understood by him.

[97] In my view, the reasonable steps taken by the police officers in this case include the following:

a. After P.C. Durocher read Mr. Sun his rights to counsel from his standard-issue card that he kept in his notebook, the officer did not simply leave it at that. It was obvious to P.C. Durocher that Mr. Sun spoke with an Asian accent and that English was not his first language. Acting on that knowledge, P.C. Durocher was intent on seeking out P.C. Seng, an officer with 20 years’ experience, to have P.C. Seng speak with Mr. Sun and reiterate the right to counsel and cautions.

b. One of the reasons why P.C. Durocher sought out P.C. Seng is that he believed – albeit mistakenly – that P.C. Seng was fluent in Mandarin and thus could likely converse more effectively with Mr. Sun. The fact that P.C. Durocher was wrong in his belief that P.C. Seng was fluent in Mandarin does not take away from the steps he took to seek out P.C. Seng or the bona fides of his motivations.

c. P.C. Seng then met with Mr. Sun and again provided him with his rights to counsel and caution. When P.C. Seng asked Mr. Sun if he understood why he was under arrest and Mr. Sun replied that, “I kill my wife,” P.C. Seng immediately directed Mr. Sun to stop talking and he then explained the secondary caution. When P.C. Seng then asked Mr. Sun if he understood the caution, and Mr. Sun responded, “I don’t understand,” P.C. Seng took the time to explain Mr. Sun’s rights in simple terms, paraphrasing the concepts in everyday language, following the same practice that he had developed over his 20-year career to ensure that a detainee understands the concepts and rights being explained to them.

d. When P.C. Seng asked Mr. Sun in simple terms whether he wanted to call a lawyer of his choice “or a free lawyer who I can get for you,” Mr. Sun replied: “I don’t need a lawyer.” With that, it was clear to P.C. Seng that Mr. Sun did not want to speak to a lawyer at that time, and he ended the conversation with the accused at that point.

e. After Mr. Sun had been arrested and D.C. Doherty arrived on scene, and despite Constables Durocher and Seng advising the Detective that Mr. Sun had been read his rights to counsel and that they both believed Mr. Sun understood those rights, D.C. Doherty decided, out of an abundance of caution and because, as he said, he wanted to see for himself, to approach Mr. Sun to make sure that he knew why he was under arrest, that he understood his rights to counsel, and that his understanding was not undermined by an difficulties with the English language. To that end, D.C. Doherty had a conversation with Mr. Sun, during which Mr. Sun confirmed that he understood his legal rights as explained to him by the other officers and added, unsolicited, that he had killed his wife. D.C. Doherty had no concerns with the ability of Mr. Sun to understand what was being said to him.

f. D.C. Doherty asked Mr. Sun if he wished to speak with a lawyer – and he wanted Mr. Sun to speak with a lawyer because, as he candidly admitted, if Mr. Sun were to speak with a lawyer, it would be “way easier in my world” – but Mr. Sun did not respond to the Detective’s overtures.

g. After Constables Durocher and Seng transported Mr. Sun to the Leamington detachment, P.C. Seng instructed P.C. Durocher to again read Mr. Sun his rights to counsel, which the officer did. When Mr. Sun was asked whether he wished to contact a lawyer at that point, he declined, saying that he killed his wife and adding, “Why do I need a lawyer?”

h. Once Mr. Sun was at the Leamington detachment, and despite P.C. Bell being advised that Mr. Sun had repeatedly and consistently rejected the offers made by the police to have him contact a lawyer, P.C. Bell, a 25-year veteran with the OPP, decided that he should ensure that Mr. Sun spoke with duty counsel at least, in part because of his concern that Mr. Sun had been charged with a most serious crime. To that end, P.C. Bell approached Mr. Sun and advised him that he was going to contact duty counsel on Mr. Sun’s behalf unless he wished to speak with another lawyer. When Mr. Sun replied to the effect that he had no wish to speak with another lawyer, P.C. Bell proceeded to facilitate the contact between Mr. Sun and duty counsel.

i. It is highly significant that, in making the arrangements with duty counsel to consult with Mr. Sun, P.C. Bell expressly indicated to duty counsel that a Mandarin interpreter was needed.

j. As a result of P.C. Bell’s initiative, the police ensured that Mr. Sun spoke with duty counsel, assisted by a Mandarin interpreter, on the night of his arrest – and in fact, the accused was placed in contact with a lawyer, assisted by a Mandarin interpreter, at the Leamington detachment just one hour and 19 minutes after he was arrested at the site of the Break Time Corner restaurant.

k. At the outset of Mr. Sun’s interview with D.C. Bawden on the morning of June 29, 2017, the Detective read Mr. Sun his rights to counsel and cautions – yet again – and when Mr. Sun made some statements indicating that, as he said, his English was “not good,” D.C. Bawden went on to explain those concepts in basic terms, using plain language, which Mr. Sun confirmed he understood.

l. As such, the police ensured that Mr. Sun was read his rights to counsel by multiple officers, each of whom testified that they were satisfied in their dealings with Mr. Sun that he understood his rights.

[98] In these circumstances, I agree with Crown counsel that the case at bar is not one where the arresting officer simply read Mr. Sun his rights to counsel from the standard-issue card. The collective actions of the various police officers who interacted with Mr. Sun went far beyond that.

[99] Further, in my view, the extent and nature of the efforts required of the police to take reasonable measures to ensure that the accused understood his rights to counsel should be informed by the extent of the accused’s appreciable language barriers. That is to say, simply, that an accused who clearly does not speak the language will trigger a duty on the part of the police to take greater measures to ensure that such an accused understands his rights.

[100] In that vein, I assess the reasonableness of the measures taken by the police to ensure that Mr. Sun understood his rights to counsel in light of the following considerations:

a. In my view, there is an important distinction between saying, on the one hand, that a person’s first language is not English or that he speaks with an accent and saying, on the other hand, that the person’s facility with the English language is so poor that he does not understand an explanation of his legal rights.

b. In that vein, I regard the initial statements voiced by Mr. Sun at the outset of his interview with D.C. Bawden, such as, for example, that his “English not good,” to be an illustration of the former concern and not necessarily the latter.

c. The evidence of all of the officers who testified – some of whom had years of experience working in the culturally-diverse community of Leamington and interacting with persons whose first language is not English – was that they were satisfied that Mr. Sun understood what they were saying to him.

d. All of the officers’ conversations with Mr. Sun were conducted entirely in English.

e. Almost without exception, the responses that Mr. Sun gave to the officers and his answers to the questions put to him were appropriate and logically related to the question or conversation. This is not a case where a detainee appears to be answering a different question than the one that was asked of him.

f. None of the officers testified that in the course of their interactions with Mr. Sun did he exhibit any of the common displays of demeanour that often indicate that a person does not understand what is being said to them, such as displays of confusion, long pauses in answering, quizzical looks, facial displays of confusion or frustration, or the like.

g. Certainly Mr. Sun never asked for the assistance of an interpreter in speaking with the police.

h. Mr. Sun repeatedly replied to the police officers that he understood his rights, whether by expressly replying in the affirmative or by nodding his head up and down.

i. Mr. Sun demonstrated that he understood his rights to counsel and cautions because in his interview with D.C. Bawden he expressly referenced the advice he had received from duty counsel in their conversation the night before that he was not to say anything to the police. Indeed, in explaining his financial pressures from the restaurant and the reasons why he killed his wife, Mr. Sun said to D.C. Bawden that, “the lawyer told me I wasn’t supposed to tell you.”[^18] Later, at about half-way through the interview, in response to a question from D.C. Bawden whether there was anything else Mr. Sun wished to tell the Detective, Mr. Sun responded, “yeah, that’s enough. I I tell you too much because the lawyers tell me don’t say anything to police.”[^19]

j. In his interview with D.C. Bawden, Mr. Sun demonstrated that he understood that he had the right to remain silent because, apart from telling the Detective early on that he knew “I don’t need to tell anything,”[^20] he later exercised his right to remain silent on certain topics. Indeed, there were three distinct topics in respect of which Mr. Sun made it known to D.C. Bawden that he would not answer any questions. First, Mr. Sun refused to give personal information about his daughter, even including her name.[^21] Similarly, Mr. Sun refused to give D.C. Bawden the name of Ms. Du-Sun’s daughter or say anything about the daughter.[^22] Finally, Mr. Sun refused to give D.C. Bawden the name of his first wife.[^23] To my mind, Mr. Sun made it very clear that he was not going to answer any questions from the Detective about the personal information of family members. And, I would also note, in each of those three instances, D.C. Bawden respected Mr. Sun’s right to remain silent, and he immediately moved on to another topic.

k. Finally, as I have said, there was no evidence from Mr. Sun directly to the effect that his English was so poor that he did not understand his rights to counsel.

[101] Based on all the evidence before me, I find that while obviously Mr. Sun’s first language is not English, he nevertheless has sufficient proficiency in the English language such that he understood his s. 10(b) rights. Indeed, this is not a case where the detained Mr. Sun did not understand that he had the right to remain silent. Rather, this is a case where it is clear the detainee did not wish to remain silent. Moreover, Mr. Sun expressly told D.C. Bawden that he wanted to tell the Detective what he had done. In particular:

a. Relatively early on in the interview, when he was talking about his restaurant business failing and his financial pressures, Mr. Sun said to D.C. Bawden: “That’s why I I kill her … This two years is is terrible. … The lawyer told me I wasn’t supposed to tell you but uh I want to tell everyone.”[^24]

b. Later on, the following exchange took place:

SUN: Yeah, that’s enough. I I tell you too much because the lawyers tell me don’t say anything to police.

BAWDEN: The lawyers tell you that.

SUN: Yeah.

BAWDEN: I appreciate you talking to me.

SUN: No problem for me is too. I want to tell someone. I want because the stress give my heart.

BAWDEN: Yes.

SUN: It’s too much.

BAWDEN: Uh hmm. Well, thank you for telling me.

SUN: No problem.

And with that the two men shook hands.

[102] As I have said, I conclude that this is not a case where Mr. Sun did not understand his rights; this is a case where Mr. Sun wanted to tell the police what he had done.

Conclusion

[103] In sum, I find that Mr. Sun’s language difficulties did not pose a barrier to his understanding his rights to counsel. I find that the police satisfied their duties under the informational component of s. 10(b) and that there has been no Charter breach.

If there was a violation of Mr. Sun’s rights under s. 10(b) of the Charter, should his statement to the police be excluded from admission at trial pursuant to s. 24(2) of the Charter?

[104] In light of my conclusion that the rights of Mr. Sun under s. 10(b) of the Charter were not violated, I need not address the admissibility of the statement under s. 24(2).

[105] Moreover, there is little point in setting out a full s. 24(2) analysis in the alternative because in the event that my conclusion that there was no violation of Mr. Sun’s s. 10(b) rights is held to be in error, it is doubtful that my s. 24(2) analysis would be of assistance on appellate review.

Conclusion

[106] For all of the above reasons, I find that Mr. Sun has not established, on a balance of probabilities, that his rights under s. 10(b) of the Charter were violated.

[107] Accordingly, having found that the statements made by Mr. Sun to D.C. Bawden during his interview on June 29, 2017, were otherwise voluntary and, in addition, having now found that there has been no breach of Mr. Sun’s rights under s. 10(b) of the Charter, the application to exclude his statement to the police pursuant to s. 24(2) of the Charter is dismissed. The statements made by Mr. Sun to the police during his interview on June 29, 2017, are admissible in evidence at trial.

The Hearsay Application

Should the text statements made by the deceased to her daughter, Ms. Huang, be admitted for the truth of their contents on the basis of a principled exception to the hearsay rule?

[108] Some further facts are necessary for an appreciation of the Crown’s hearsay application.

[109] As I have said, Ms. Yu Huang, the daughter of the deceased, currently resides in China. To be clear, Mr. Sun is not the biological father of Ms. Huang. It is common ground that Ms. Huang was born on December 16, 1994, and as such, she was 22 years of age on June 28, 2017, the date her mother was killed.

[110] On the morning of that same June 28th, the deceased and her daughter Ms. Huang were communicating using a social media platform, akin to texting, called “WeChat.” At the time of the relevant conversation, it was about 10:04 a.m. in the morning in Leamington but, given the 12-hour time difference, 10:04 p.m. that night in China, where Ms. Huang was.

[111] A screenshot of Ms. Huang’s cellphone displaying the WeChat conversation with her mother was filed by the Crown on the hearsay application. A certified translation of the conversation was also provided. It is common ground that the text of the English translation of the conversation is as follows:

[MOTHER]: I drove myself for over half a day, and received over one hundred Yuan from the sale

JUNE 28, 2017, 22:04

[MOTHER]: Had a big quarrel with him again, and he said that he had long wanted to kill me.

Today is your mom’s birthday, and you didn’t even say a single word.

JUNE 28, 2017, 22:31

[DAUGHTER]: Dumbfounded, what to expect with this kind of life? I was waiting until it is 28 at your end to say happy birthday! Will be returning soon.

[MOTHER]: Tidy up quickly and go to bed.

[112] It is common ground that this was the last conversation the deceased had with her daughter before her death later that day.

[113] The Crown seeks an order that these out-of-court statements and, in particular, the deceased’s statement that (she) “had a big quarrel with him again, and he said that he had long wanted to kill me,” are admissible at trial for the truth of their contents. That is, the Crown seeks an order that not only was the statement said but that its contents are true. The Crown acknowledges that the statement constitutes double-hearsay.

Legal principles

[114] Again, there is no real disagreement as between the Crown and the defence as to the applicable legal principles. They are correctly canvassed in paras. 16-25 of the Crown’s factum. I do not understand defence counsel to take issue with those fundamental principles.

[115] In its seminal decision in R. v. Khelawon, the Supreme Court of Canada recognized the defining features of hearsay evidence: an out-of-court statement is hearsay when it is adduced to prove the truth of its contents without opportunity for contemporaneous cross-examination of the declarant.[^25]

[116] Hearsay evidence is presumptively inadmissible unless it falls under an exception. In Khelawon, the Supreme Court endorsed a framework for considering the admissibility of hearsay evidence, pursuant to which hearsay evidence may be admissible if it (a) falls under a traditional exception to the hearsay rule developed under the common law; or (b) is supported by indicia of necessity and reliability required by the principled approach. In rare cases, hearsay evidence falling under a traditional exception can be challenged because indicia of necessity and reliability are lacking. Where hearsay does not fall under a traditional exception, it may be admitted if necessity and reliability are established on a voir dire. [^26]

[117] The Crown does not point to or rely upon any traditional exception that would justify the admission of the declaration of the deceased that Mr. Sun had said that he had long wanted to kill her. While Mr. Sun’s alleged statement to his wife may be admissible under a traditional exception to the hearsay rule, in that, at common law, a party’s admission against their own interest is admissible to prove the truth of its contents, the statement of the deceased wife repeating the alleged statement to her daughter does not fall under a traditional exception.

[118] Rather, the Crown seeks to admit the statement by the deceased on the basis of its necessity and reliability as a principled exception to the hearsay rule.

Analysis

[119] I am satisfied that the requirement of necessity, which means “reasonably necessary,”[^27] is satisfied on the facts here. An out-of-court statement will be necessary where the declarant is unavailable to testify at trial. Here, the statement is “necessary” because the alleged maker of the statement, Mr. Sun, is not compellable as a witness, and the declarant repeating the alleged statement is deceased.

[120] As such, I agree with the Crown that the real issue to be determined here is whether there are sufficient indicia of threshold reliability. Threshold reliability may be established by: (1) the presence of adequate substitutes for testing truth and accuracy (i.e., procedural reliability); or (2) sufficient circumstantial guarantees of reliability or an inherent trustworthiness (i.e., substantive reliability).[^28]

[121] In my view, it is clear that the statement made by the deceased to her daughter is not procedurally reliable. As a general proposition, procedural reliability sufficient to establish threshold reliability requires that there be some form of the cross-examination of the declarant. That is obviously not possible here. Even apart from the unavailability of the declarant for cross-examination, the instant case also lacks the presence of any substitutes for the traditional safeguard of cross-examination, such as, a video recording of the declarant making the statement, the presence of an oath by the declarant, and a warning about the consequences of lying.[^29]

[122] The question then becomes whether threshold reliability can be established on the basis of substantive reliability, that is, whether there are present here sufficient circumstantial guarantees of reliability or an inherent trustworthiness.

[123] I agree with Mr. Miller that the Crown faces a significant hurdle in establishing threshold reliability on the basis of demonstrating substantive reliability. The high standard required for establishing substantive reliability was described by the Supreme Court of Canada in R. v. Bradshaw in the following terms:

While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty” (Smith , at p. 930). Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (Khelawon , at para. 49). The level of certainty required has been articulated in different ways throughout this Court’s jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon , at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon , at para. 107; Smith , at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon , at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).

[124] I am satisfied that the Crown has not met that high standard in the instant case.

[125] The very first difficulty I have is that the Crown’s entire application essentially asks this court to simply assume that the male person referenced in the statement in question is Mr. Sun. I suppose it may be tempting to just assume that when the deceased said to her daughter in the WeChat conversation that “[h]ad a big quarrel with him again, and he said that he had long wanted to kill me,” she was, in fact, referring to her husband, the accused. However, I do not think that it is open to this court to determine the question of substantive reliability based on a threshold assumption.

[126] The plain fact is that I know very little about the circumstances of the deceased and her social life and even less so about the relationships she may or may not have maintained with other male persons in her life. I know that she had a relationship with her daughter, Ms. Huang. I know that at the time of her death, she was married to Mr. Sun. As well, I know that Mr. Sun is not the biological father of Ms. Huang, and so presumably there was another male person in her life at one point, who was the father of her child. Beyond that, I know essentially nothing about the deceased’s social life.

[127] So, for example, I do not know whether the deceased maintained any level of relationship with Ms. Huang’s father. I do not know whether that relationship was amicable or whether it was rife with animosity or whether it was non-existent. Assuming there was some level of relationship with the father of her child at one point, I do not know why or how the deceased’s relationship with the father ended. I do not know whether that assumed relationship ended by reasons of, say, an untimely death of the father. Equally so, I do not know whether that relationship ended on bitter terms, after an intolerable series of “big quarrel[s] with him.” Fundamentally, I do not know whether the “him” referenced in the proffered statement is Mr. Sun or the father of Ms. Huang or some other male person who was in the deceased’s life.

[128] I appreciate that there is no evidence before me that, among other things, Ms. Huang’s father or some other male person other than Mr. Sun was present and involved in the deceased’s social circles in Leamington. But that is just my point. As much as I know very little about the identity of the male person who is the “him” referenced in the proffered statement, I know equally little about the alleged “quarrel.” I do not know whether that quarrel took place in person, that is, with someone present in Leamington. Equally, I do not know whether that “quarrel” took place in cyber-space, conducted by way of text messages, or emails, or even WeChat conversations with someone on the other side of the globe. Moreover, I do not think it would lie in the Crown’s mouth to suggest that it is mere fanciful speculation to suggest that the “quarrel” might be had with someone across the globe when the very statement they seek to adduce into evidence for the proof of something allegedly said by the accused to the deceased in Leamington, Ontario, Canada, is some text message sent by the deceased in Leamington and received by the deceased’s daughter on the other side of the globe in China.

[129] Admittedly, the reference to “him” in the proffered statement quite possibly may be Mr. Sun. But it could also quite possibly be the father of the deceased’s daughter, or some other male person in the deceased’s life, about which, again, I know very little. In these circumstances, it is simply not possible to maintain that the proffered statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process.”[^30] On the contrary, it is clear that contemporaneous cross-examination of the declarant, were she available, would clear up these fundamental questions.

[130] The next fundamental problem I have with the proffered statement and the next major area about which I do not know is the context of the conversation in which the statement was made. The context of the alleged statement by the accused is unknown. The timing of when the accused allegedly made the statement is unknown. The accuracy and sincerity of the declarant’s memory cannot now be challenged.

[131] Nor am I in any much better position in trying to appreciate the context of the conversation in which the deceased repeated the alleged statement to her daughter. To say that the proffered statement appears to have been made “out of the blue” is an understatement. The statement immediately preceding the statement in question in the screenshot appears to be wholly unrelated. In the preceding statement, the deceased is speaking about driving for over half a day and receiving over 100 yuan from the sale of some item or some something. The preceding statement is not at all helpful in assessing the context of the proffered statement. And I appreciate that I do not know much about the preceding statement either, including when that message was sent and received and what the deceased was actually talking about. But again, that is my point.

[132] And then, on June 28, 2017, on the morning of the day that the deceased was killed, we have a very curious conversation where, it would seem, in the first instance, the deceased is having a big quarrel with a male person – and, again, the Crown would have this court assume that the said male person is the accused – and that same male person then “said that he had long wanted to kill me.”

[133] But then, seemingly, in her very next breath, the deceased mother “shifts gears” and scolds her daughter for not wishing her mother a happy birthday because it appears that, very sadly, the deceased was killed on her birthday. That is, immediately following the statement in question appears the statement from the deceased: “[t]oday is your mom’s birthday, and you didn’t even say a single word.” I appreciate that I do not know the time differential between the first statement and the second statement – I did not hear any evidence on the workings of the WeChat application – and so all I know is that it appears that the two statements were made on the same day, June 28, 2017, but I am not certain as to the timing of when each statement was made.

[134] The context of that conversation is curiously troubling to me. In the preceding breath (whenever that was), the deceased is speaking about driving a half-day and some undisclosed sale. In the next breath, the Crown would have this court accept that the accused told his wife that he had long wanted to kill her. And in her very next breath, the deceased has seemingly abandoned the point about her husband long wanting to kill her and is now scolding her daughter for seemingly forgetting her birthday.

[135] In the context of the preceding and subsequent utterances, the statement in question seems to have come “out of the blue” – and then, just as quickly, is seemingly ignored – by both parties. That is to say, if a person honestly believed that her spouse was actually wanting to kill her for some time, one would think that such a revelation might reasonably consume that person’s thoughts. One would understand if the intended victim dwelled on that prospect for some time. One would understand if the intended victim went on about the prospect of being killed by her own husband for some time with her daughter. One would understand if the intended victim poured out her feelings of fear and apprehension and her wounded heart for pages and pages of text messages with her daughter. But there is nothing of that ilk here – at all. The deceased did not dwell on the statement. The deceased did not go on about it for pages with her daughter. The deceased did not display any apprehension of fear. The accused spent all of a mere 18 short words on the topic before she moved on to rebuking her daughter for seemingly forgetting the mother’s birthday.

[136] As I assess the context of the conversation, it strikes me that by her own seemingly light treatment of the topic, the deceased herself did not appear to place much reliability in the alleged statement that her husband had long wanted to kill her. Indeed, from reading the entirety of the text exchanges that day, one is hard pressed to conclude that either party took the alleged threat seriously.

[137] In that vein, I would also note that there is no corroborating evidence before me that the deceased placed any calls to the police to the effect that she had just learned that her husband had been planning on killing her for some time.

[138] The Crown argues that the WeChat statement is similar to the statement in R. v. Khan in terms of circumstantial guarantees of trustworthiness. The Crown submits the unprompted nature of the statement and the good relationship between the deceased and her daughter act as circumstantial guarantees of trustworthiness.

[139] The Crown further argues this case is similar to R. v. Smith,[^31] in that, the declarant had no reason to lie to her daughter, and the statements bear an inherent trustworthiness that operates to satisfy the threshold reliability requirement. In oral argument, the Crown submitted that the fact that there is no evidence of a motive to lie on the part of the deceased is an important consideration for this court.

[140] I cannot agree with the Crown’s submission. In Khan, the circumstantial guarantees of trustworthiness included the fact that the child’s statement was of such a nature that a child would not have ordinarily have knowledge of the information contained in the statement.

[141] One cannot make a similar pronouncement in the instant case. Moreover, in Khan, the hearsay evidence was admissible because of an overwhelming body of confirmatory evidence, and the likelihood of fabrication by the declarant child was low.

[142] In my view, neither of those same two factors are present in the instant case.

[143] First, the Crown concedes there is no confirmatory evidence here.[^32]

[144] Second, there are any number of potential motives for the deceased declarant to have fabricated her statement to her daughter, including her fear of embarrassment in admitting a failed relationship with her husband to her daughter or, perhaps worse, of admitting her part in that failed relationship; a desire to justify her seeming intention to leave her life in Canada and return to China; and a lack of evidence of the actual state of the relationship between the deceased and her husband, Mr. Sun.

[145] Further, I agree with Mr. Miller’s submission that the Crown’s position conflates evidence of no motive to fabricate with a lack of evidence of motive to fabricate.[^33] Where there is evidence that a declarant had no motive to fabricate, reliability of a hearsay statement is enhanced. However, where there is a lack of evidence of motive, reliability is not enhanced. That is the case here. Here, there is simply no evidence one way or the other whether the declarant had a motive to fabricate. In my view, the Crown mistakenly submits that a lack of evidence of motive to fabricate is tantamount to a lack of motive; respectfully, it is not. A lack of evidence of motive cannot be converted into a finding in favour of the Crown that the declarant had no motive to fabricate.

[146] I also agree with Mr. Miller’s position that the position of the Crown fails to address the dangers of the hearsay statements in this case. There are two main dangers present here: narration and sincerity. In my view, where the entire hearsay declaration is not available, the trier of fact is not in a position to assess the meaning of the portion that is available. In this case, that means the trier of fact is not in a position to assess the meaning of one statement allegedly made by the accused in the course of what was likely a larger argument with the deceased. The entire narrative is unavailable. Further, the Crown must show that the deceased’s statement was so obviously sincere that it was unlikely to change under cross-examination. This has not been done.

[147] Finally, even if threshold reliability were established, I agree with Mr. Miller that the probative value of the proffered statement is far outweighed by its prejudicial effect. The triers of fact in this case will be a jury. I think it is likely that if the jury were to hear the statement of the accused to the deceased, that evidence would be used to conclude that the accused is the kind of person who would kill his wife. The risk of this improper use far outweighs the probative value of the statement, given especially my concerns outlined above regarding its reliability.

Conclusion

[148] For all of these reasons, I conclude that the Crown has failed to establish the threshold reliability of the proffered statement.

[149] As such, I find that the Crown has failed to establish that the statement in question is a principled exception to the general hearsay rule that hearsay evidence is presumptively inadmissible

Summary

[150] For all of the above reasons, I conclude that the statements made by Mr. Sun to D.C. Bawden during his interview on June 29, 2017, were made voluntarily and not in breach of his rights to counsel as guaranteed by s. 10(b) of the Charter. I would allow the Crown’s voluntariness application and dismiss the defence’s s. 10(b) application.

[151] Accordingly, I rule that Mr. Sun’s statements to Detective Bawden on June 29, 2017, are admissible in evidence at trial.

[152] I also conclude that the hearsay statements made by the deceased, Weqiong Du-Sun, to her daughter, Yu Huang, in their WeChat text conversation of June 28, 2017, do not meet the threshold test for substantive reliability and ought not to be admitted in evidence as a principled exception to the hearsay rule. As such, I would dismiss the Crown’s application to have those statements admitted for the proof of their contents.

[153] Accordingly, I rule that the statements made by the deceased to her daughter in their WeChat conversation of June 28, 2017, are inadmissible in evidence at trial.

“Original Signed by Justice J. Paul R. Howard”

J. Paul R. Howard

Justice

Delivered Orally: August 20, 2019

COURT FILE NO.: CR-18-4273

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHENG SUN

REASONS FOR RULING ON PRE-TRIAL APPLICATIONS

Howard J.

Delivered Orally: September 20, 2019

[^1]: Criminal Code, R.S.C. 1985, c. C-46.

[^2]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^3]: Application Record re: Voluntariness Application, Tab 3, Transcript of 911 call on June 28, 2017, at p. 1.

[^4]: Application Record re: Voluntariness Application, Tab 4, Transcript of police interview on June 29, 2017, at p. 5.

[^5]: Ibid., at p. 6.

[^6]: Ibid., at pp. 15, 20, 21, 27-28, 30, 31-32, 38, 52, 54,74, 76, 81-82, 84, 86, 89, and 100.

[^7]: R. v. Carter, 2012 ONSC 6115, 272 C.R.R. (2d) 164 (S.C.J.), at para. 14, citing R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, 147 C.C.C. (3d) 321, and R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, 217 C.C.C. (3d) 353. See also R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, 225 C.C.C. (3d) 103.

[^8]: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 277; and R. v. Sandhu, 2011 ONCA 124, 103 O.R. (3d) 561, at paras. 41-47.

[^9]: R. v. Vanstaceghem, 1987 CanLII 6795 (ON CA), [1987] O.J. No. 509, 36 C.C.C. (3d) 142 (C.A.), at pp. 147-148 [cited to C.C.C.], citing R. v. Anderson (1984), 1984 CanLII 2197 (ON CA), 45 O.R. (2d) 225, 10 C.C.C. (3d) 417 (C.A.); and R. v. Baig (1985), 1985 CanLII 3485 (ON CA), 20 C.C.C. (3d) 515, 16 C.R.R. 300 (C.A.).

[^10]: R. v. Xhango, 2010 ONCJ 503, [2010] O.J. No. 4691, at para. 12.

[^11]: Ibid., citing R. v. Vanstaceghem.

[^12]: Ibid., citing R. v. Lukavecki, [1992] O.J. No. 2123 (Ont. Ct. (Gen. Div.)).

[^13]: Ibid., citing R. v. Ly, [1993] O.J. No. 268 (Ont. Ct. (Prov. Div.)).

[^14]: Ibid., citing R. v. Lim, [1993] O.J. No. 3241, 20 C.R.R. (2d) 187 (Ont. Ct. (Prov. Div.)).

[^15]: Ibid., citing R. v. Ferreira, 1993 CarswellOnt 7004, 23 W.C.B. (2d) 544 (Ont. Ct. (Gen. Div.)).

[^16]: Ibid., citing R. v. Shmoel, [1998] O.J. No. 2233 (Ont. Ct. (Prov. Div.)).

[^17]: Ibid., citing R. v. Shmoel and R. v. Ali, [1999] O.J. No. 5712 (Ont. Ct. (Gen. Div.)).

[^18]: Application Record re: Voluntariness Application, Tab 4, Transcript of police interview on June 29, 2017, at p. 20.

[^19]: Ibid., at p. 55.

[^20]: Ibid., at p. 10.

[^21]: Ibid., at p. 43.

[^22]: Ibid., at p. 67.

[^23]: Ibid., at p. 89.

[^24]: Ibid., at p. 20. [Emphasis added.]

[^25]: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para 35.

[^26]: Ibid., at para. 42.

[^27]: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92, at p. 546 [cited to S.C.R.].

[^28]: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, 300 C.C.C. (3d) 1, at para. 30, citing R. v. Khelawon, at paras. 62-63. See also R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, 349 C.C.C. (3d) 429, at paras. 28 and 30.

[^29]: R. v. Bradshaw, at para. 28.

[^30]: R. v. Khelawon, at para. 49.

[^31]: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915.

[^32]: See the Crown’s Hearsay Application Factum, dated July 15, 2019, at para. 36: “[i]n terms of corroboration, there is no extrinsic evidence that bolsters the veracity of this statement.”

[^33]: R. v. Czibulka, 2004 CanLII 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.), at para. 44.