R. v. Lam, 2025 ONSC 3316
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Chau Lam
-and-
Hue Lam
Accused
Tasha Bobrovitz and Julian Whitten for the Crown
Ewan Lyttle and Brett McGarry for Chau Lam
Paolo Giancaterino for Hue Lam
HEARD: March 31-April 4, 2025
ORAL DECISION: May 27, 2025
ADMISSIBILITY OF STATEMENTS MADE BY THE ACCUSED
voluntariness and ss. 8, 10, and 24(2) Charter
somji j.
Overview
1Shortly after midnight on October 31, 2022, the accused Chau Lam called 911 to report that she and her sister had killed their mother. The 911 dispatcher initially understood Chau Lam to state that “someone” killed their mother but later during the 911 call and in the presence of a Vietnamese interpreter, Chau Lam reiterated that she and her sister killed their mother. The Crown seeks a ruling that Chau Lam’s statement to the 911 dispatcher is adoptable by Hue Lam.
2As a result of the call, the police were dispatched to the sisters’ home. Cst. Tang was one of the attending officers. He understood from the 911 dispatcher that the sisters had reported someone killed their mom. He requested a Vietnamese interpreter but one was not yet available. Cst. Tang proceeded to question the sisters in English and Cantonese. After asking the sisters to identify themselves and ascertaining if the victim had any illnesses, Cst. Tang asked the sisters what happened. Hue Lam responded in Cantonese that her mother had yelled and hit them in the past. Cst. Tang sought clarification and asked, “What happened here?” Hue Lam pointed to herself and then her sister and then put her hands together in a fist above her head and made a striking motion downward towards her legs. Cst. Tang queried “Both of you hit her?” at which time Hue Lam repeated the motion. Cst. Tang directed the sisters not to say anything further. Defence counsel argue that the sisters were detained when they spoke to Cst. Tang and that Hue Lam’s statements and gestures were made in breach of her ss. 10(a) and (b) Charter rights to counsel. Counsel for Hue Lam also argues his client’s statements to Cst. Tang were made involuntarily. The Crown argues that Hue Lam’s statements and gestures were voluntary, Charter compliant, and adoptable by Chau Lam.
3The Lam sisters were subsequently arrested and charged with murder. They were provided their primary and secondary cautions and rights to counsel with a Vietnamese interpreter, Ms. Tran, translating over the phone. The sisters were taken to the police detachment. Both sisters exercised their right to counsel with a Vietnamese interpreter on the phone. Both sisters were interviewed independently by Detectives Séguin and Brennan that same morning in the presence of a Vietnamese interpreter. Hue Lam was interviewed starting at 8:31 am and Chau Lam was interviewed starting at 10:34 am. Both sisters independently admitted to the detectives that they killed their mother.
4Defence counsel argue that the detectives ought to have known that Hue Lam’s gestures and statements to Cst. Tang at the scene were taken in violation of her right to counsel, and consequently, both detectives were obliged to issue a “fresh start” caution before commencing their interviews. Defence argue that the failure to issue a fresh start caution warrants exclusion of the statements under s. 24(2) of the Charter. In addition, Defence argues that Hue Lam’s statement to Det. Séguin was not voluntarily made and Chau Lam’s s. 10(b) Charter right was violated because the police failed to take reasonable steps to ensure she spoke to counsel in a timely manner. Consequently, Defence argues that their clients’ statements to the detectives should be excluded pursuant to s. 24(2) of the Charter.
5Finally, counsel for Hue Lam brings an additional application pursuant to s. 8 of the Charter that his client’s right to privacy and dignity were violated when she was undressing in the cell block and the security surveillance camera exposed her breasts. Counsel argues that should I find a s. 8 Charter breach, it is open to me to find that Hue Lam’s subsequent interview with Det. Séguin should be excluded under s. 24(2) of the Charter.
6Following the interviews with the detectives, the accused were charged with the first-degree murder of their mother Kieu Lam on October 31, 2022.
7The issues to be decided are as follows:
Are Chau Lam’s admissions to the 911 dispatcher adoptable by Hue Lam?
Were the Lam sisters detained when Cst. Tang spoke to them at the scene, and if so, were Hue Lam’s statements and gestures made in breach of her s. 10 Charter right to counsel?
Were Hue Lam’s statements and gestures to Cst Tang made voluntarily?
Are Hue Lam’s statements and gestures to Cst. Tang adoptable by Chau Lam?
Was Chau Lam’s s. 10(b) Charter right breached because of the delay in her speaking with duty counsel?
Were Detectives Séguin and Brennan required to provide the Lam sisters a “fresh start” caution, did they fail to do so, and if so, should the Lam sisters statements to the detectives be excluded under s. 24(2) of the Charter?
Was Hue Lam’s statement to Det. Séguin voluntarily made?
Was Hue Lam’s right to privacy under s. 8 of the Charter breached while she was in the cell block, and if so, does this breach render her subsequent interview with Det. Séguin inadmissible under s. 24(2) of the Charter?
Timeline of events
8Facts related to each of the issues are set out below. However, for ease of reference, Appendix 1 sets out a timeline of events during the morning hours of October 31, 2022.
Issue 1: Adoption of Chau Lam’s statement to 911 dispatcher
9Chau Lam called 911 dispatch around 12:20 am on October 31, 2022, and told them she needed the police. When asked if she needed an ambulance, she repeated no, she wanted the police. The officer then confirmed her name and asked her why she needed the police. She replied that she and her sister had killed their mother. The exact words she used were as follows:
Dispatcher: Okay. And can – before – before I cancel the ambulance, why do you need the police?
Chau Lam: Me and my sister kill my mum.
Dispatcher: What’s – what’s numb?
Chau Lam: Kill my mum. Me and my sister kill my mum.
Dispatcher: What – what do – what do you mean – what – what – sorry, I have a really hard time understanding.
Chau Lam: Kill my mum. K-I-L-L.
Dispatcher: Kill your mom?
Chau Lam: Yeah.
Dispatcher: Who killed your mom?
Chau Lam: Me and my sister.
Dispatcher: Your – who?
Chau Lam: Me and my sister.
Dispatcher: Is your mom dead?
Chau Lam: Yeah.
10The 911 dispatcher continued gathering additional information about the location of the residence, the mother’s age, and the language she speaks. He then placed Chau Lam on hold to call the police. The dispatcher reported to the police that the caller was Vietnamese and there was a language barrier. The dispatcher did not appear to understand what Chau Lam said and reported to the police that the caller was saying “someone” killed her mom. He told the police:
Dispatcher: And she’s saying that someone killed her mom, but I don’t think, um, again, uh, that what she’s saying….
11The 911 dispatcher informed the police he will get a translator and contacted Language Line Solutions and requested a Vietnamese interpreter. He then returned to the 911 call with Chau Lam with the interpreter present. The 911 dispatcher asked Chau Lam what happened, and she replied again that she and her sister killed their mother. The exchange is as follows:
Dispatcher: Uh, okay. So, tell me what happened.
Interpreter What happened, tell me.
Chau Lam: Uh, me and…and my sister killed my mom.
Interpreter: Uh, me and my sister, we kill our mother.
Dispatcher: You kill your mother? Killed, sorry?
Interpreter: You killed your mom?
Chau Lam: Correct.
Interpreter: Correct.
12The dispatcher asked Chau Lam again “what happened” and she replied that “The old woman yelled all the time, day and night…and hit” because she was “too angry…so killed her.” The dispatcher asked how she or they did it to which Chau Lam replied “Yeah, too angry, took a hammer and hit her…strangled her…dead already. Don’t know if she’s already dead or not.”
13The dispatcher then asked Chau Lam if her mother was still breathing or awake and she replied she did not know. When asked if she could check, she stated “No, no check…let the police check when they come.” The 911 dispatcher then asked Chau Lam where her sister was, and she replied, “Sitting here.” He then asked two more questions, at which time, he was interrupted because Officers De Los Santos and Brouillette walked into the residence and announced themselves. The dispatcher ended the interaction with Chau Lam and the interpreter. The inquiry about the sister and arrival of the police proceeded as follows:
Dispatcher: Okay, and where’s the sister right now?
Interpreter: And your sister, where is she now?
Chau Lam: Sitting here.
Interpreter: Sitting here.
Dispatcher: Oh, she’s – the sister’s still there? The sister’s there?
Interpreter: Your sister is still there?
Chau Lam: Yeah.
Interpreter: Yes.
Dispatcher: She’s still there and she’s still hitting the mom?
Police: Hello. Police.
Dispatcher: Oh, okay.
Police: What’s going on? Is she, uh, dead or…
Chau Lam: I – I’m not sure.
Police: Okay. How many is in the house? Hello, police.
Dispatcher: All right. Thank you, interpreter.
Chau Lam: Yeah.
Police: Hello.
Chau Lam: The police just arrived.
Interpreter: The police here.
Dispatcher: Yeah, the police is there. It’s, uh – thank you, interpreter. You can, uh – you can hang up now.
Interpreter: Okay. Thank you for using our services. Have a nice day, sir.
Dispatcher: All right. ‘Kay, bye.
Interpreter: Thank you.
Dispatcher: Bye-bye.
Chau Lam: Okay to hang up now?
Police: [Indiscernible]. Just stay there.
Chau Lam: Yeah, I know. I know. I know. I do not go anywhere.
Police: Okay.
Chau Lam: Hello?
Dispatcher: Hi, ma’am. The police is there?
Chau Lam: Yeah.
Dispatcher: Okay, I’m gonna let you go, okay?
Chau Lam: Okay. Bye-bye.
Dispatcher: Okay Bye.
14Cst. De Los Santos was the first officer on the scene with Cst. Brouillette immediately behind him. Cst. De Los Santos testified that he received the dispatch around 12:23 am and he and his partner, Cst. Brouillette, proceeded to attend the residence. The evidence suggests that the officers arrived somewhere between 12:29 am and 12:36 am. When he arrived at the house, the screen door was closed but the front door was left open, allowing one to see in. When he stepped into the residence, there was a small kitchen to the left and a table. He observed two elderly East Asian females subsequently identified as Hue Lam and Chau Lam. He believes that when he first observed them, they were standing. No one else was present. He tried to communicate with them in English, but he does not recall his questions or if they gave any responses. He testified that both sisters pointed with their fingers up the stairs towards the second level. At that time, all that he understood from his communications with dispatch was that the caller had reported “someone” killed their mother.
15While he does not recall seeing the phone itself, Cst. De Los Santos confirmed the 911 dispatcher was still on the phone with the sisters when he arrived. The 911 call was played back and Cst. De Los Santos acknowledged that he had announced “Ottawa Police” on entry, asked what was going on, and asked how many were in the house. He explained that he told the sisters to stay in the kitchen because they stepped towards him, and he was left with the impression that they were going to step out of the kitchen and follow him upstairs.
16Cst. Brouillette testified that he received a call at around 12:23 am and understood from the dispatcher that the caller said, “someone killed my mom.” He proceeded to the residence and he and Cst. De Los Santos arrived at the same time. When he entered, he observed two Asian females subsequently identified as the Lam sisters. However, he described them as sitting at the kitchen table. Cst. Brouillette listened to the 911 call in court. He acknowledged Cst. De Los Santos’ remarks on the call, but was unsure who asked, “How many is in the house?” He believes it was him that said “Hello, police” the second time. He followed Cst. De Los Santos upstairs where they found the victim unconscious on the bed. He then came back downstairs to ensure the house was safe. He checked the first level and then the basement, following which, he informed the paramedics who were waiting outside that it was safe to come in.
17Chau Lam does not contest the admissibility of the statements to the 911 dispatcher.
18The Crown argues there is some evidence to find Hue Lam adopted the admissions made by Chau Lam to the 911 dispatcher, in particular Chau Lam’s statement that she and her sister killed their mother. Counsel for Hue Lam argues that a finding of adoption is not available, and consequently I must direct the jury not to use the 911 call as evidence against Hue Lam.
19The Lam sisters are scheduled to be tried jointly. As a general rule, “an out of court statement [or admission] made by one accused is not admissible evidence against a co-accused:” R. v. Millard, 2023 ONCA 426, 428 C.C.C. (3d) 338, at para. 91., citing R. v. MacDonald, 2010 ONCA 178, 259 O.A.C. 308, at para. 18. However, an accused can adopt a statement made by their co-accused if they expressly adopt the statement or where, by their words, actions, conduct or demeanour, they may be taken to have inferentially adopted it as true.
20In the case of a jury trial, the trial judge’s role is to determine if a finding of adoption is available on the evidence. In making such a determination, the trial judge exercises a gate-keeping function. If a finding of adoption is not available, the trial judge must direct the jury not to use the evidence as against the accused. If, on the other hand, the trial judge finds some evidence of adoption available to the jury, it is up to the jury to apply the legal principles as instructed by the trial judge to determine whether the inference [of adoption] should in fact be drawn Millard, at paras. 91-92; R. v. Gordon, 2022 ONCA 799, at para. 48; R. v. Warner (1994), 1994 CanLII 842 (ON CA), 21 O.R. (3d) 136 (C.A.); R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581 (C.A.), at para. 48; R. v. Scott, 2013 MBCA 7, 296 C.C.C. (3d) 311, at para. 22.
21There may be circumstances where an admission is implied from a party’s silence in the face of statements made by others in circumstances where the party could reasonably have been expected to respond R. v. Beauchamp, 2015 ONCA 260, 333 O.A.C. 87, at para. 247, citing the formulation set out in R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173 (C.A.), at p. 187. See also R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at para. 72.
22More recently in Gordon, at para. 49, the Court of Appeal for Ontario confirmed the formulation set out in Beauchamp and Robinson:
An inference of adoption may be available to be drawn based on a person’s words, actions, conduct, or demeanor in response to a statement made by another person and heard by the person whose response is being considered. Silence in the face of statements made by others, or an equivocal or evasive denial, may also constitute an adoptive admission where the circumstances give rise to a reasonable expectation of reply: R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 247; R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-58. [Emphasis added.]
23Where an accused's silence is alleged to constitute an adoptive admission, Watt J.A. sets out additional requirements that must be met, namely that:
a. the accused must have heard the statement;
b. the statement must be about a subject matter of which the accused was aware;
c. the accused must not have been suffering from any disability or confusion;
d. the declarant must not be someone to whom the accused would be expected to reply, as for example, a young child: David Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2024), at § 8.4. See also Robinson, at para. 49.
24Given that the inference of adoption by silence relies on perceptions of how people should or should not respond to a given situation, trial judges are to approach adoption by silence with great care. As explained in Robinson, at para. 58:
Finally, I note that in S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2013), the authors recommend a cautionary approach to the doctrine of adoption by silence, at p. 7-137:
One must approach adoption by silence with great care. In many cases the inference of adoption is based on perceptions of how the accused should [page595] respond in what are often extreme and unusual situations. Jury suppositions about how an accused "should" behave in such circumstances may be inaccurate. They should be cautioned to use care before finding that an accused has implicitly adopted a statement by virtue of his failure to respond in a particular way.
25Other Canadian appellate courts have also cautioned that while adoption can be implied from a person’s silence, it is only in circumstances which give rise to a reasonable expectation of reply. Mere silence is not enough: see e.g., R. v. SKM, 2021 ABCA 246, 75 C.R. (7th) 151, at para. 39, citing R. v. Scott, 2013 MBCA 7, at paras. 19, 21. The court must approach adoption by silence with great caution because there may be other reasons for why an accused person remains silent: Scott, at para. 21.
26In this case, there is no evidence that Hue Lam explicitly adopts Chau Lam’s statement.
27The question which arises is whether there is some evidence to establish that Hue Lam impliedly adopts the statement. For the following reasons, I find there is evidence that she did.
28Chau Lam makes three admissions to the dispatcher that she and her sister killed their mother. The first admission is made one minute and 10 seconds within the call. Just before the first admission is made, the dispatcher asks her for her number. While she is providing the information, a second voice is heard in the background which one can reasonably infer might be her sister who would have heard the first admission.
29There is a break while the dispatcher contacts police and interpretation services. When Chau Lam makes the admission a second time, it is at approximately seven minutes into the call. The admission is made in Vietnamese with an interpreter translating. Chau Lam also explains in Vietnamese how they killed their mother. During this exchange, the dispatcher asks Chau Lam where her sisters is and Chau Lam repeats between 9 minutes and 25 seconds and 9 minutes and 47 seconds into the call that her “sister is sitting here.” She confirms it a second time, and within seconds of doing so, the police announce their arrival at the residence. Both Officers De Los Santos and Brouillette testified the sisters are together in the kitchen upon their arrival and the 911 call is still ongoing. No one else was found present in the home.
30In addition, Cst. De Los Santos testified that he believed the sisters were waiting for the police because one, the front door was open and two, they were both in the kitchen when he arrived. This was corroborated by Cst. Brouillette who entered right after him.
31Furthermore, Cst. De Los Santos testified that just after entering the home and announcing his presence, both sisters used their fingers to point towards the stairs and upwards directing him to where the victim was found.
32Based on this evidence, one could reasonably infer that Hue Lam is the second person in the background present during the 911 call, that she heard the statements made by her sister, and that she understood the subject matter of the statement which was an admission that the sisters had killed their mother. Hue Lam would also have been aware from the 911 call that her sister was summoning the police to the residence. Upon their arrival, Hue Lam actively directed Cst. De Los Santos upstairs to where their mother was.
33I would concede that it is unclear what Hue Lam said to her sister in the background during the 911 call and an argument could be made that she was not “silent” in the face of her sister’s admission of their joint involvement in their mother’s death, but possibly protesting her sister’s statements. However, the voice was heard at the time the officer was inquiring about telephone contact information and not when Chau Lam was admitting that they killed their mother. Furthermore, one must consider Hue Lam’s location and conduct upon police arrival. Chau Lam admitted she and her sister called their mother again in Vietnamese and that her sister was present with her. Within seconds the police arrived and the 911 call ended. At this time, Hue Lam did not distance herself from her sister’s admissions to the dispatcher. If Hue Lam were not involved in her mother’s death and had just heard her sister suggest to the dispatcher that she was involved, one would reasonably expect that she would have tried to explain her own position to the police or at minimum, distance herself from her sister’s admissions. She did no such thing. On the contrary, she, like her sister, directed the police upstairs to their mother.
34Furthermore, in her subsequent conversation with Cst. Tang at the crime scene, Hue Lam gestured that she and her sister struck her mom. Hue Lam also admitted in a later interview to Det. Séguin that she and her sister killed their mother.
35Hue Lam also reported to Det. Séguin in the same interview that she called to turn herself in. Her precise words were: “I phone…I phoned the police. Not because anybody found out…but I actively turned myself in.” Later in the interview “when done…we were trembling…then put on our clothes and called the police.” These statements, if admissible, are also available for consideration by the jury in assessing whether Chau Lam’s statement to the 911 dispatcher is adoptable by Hue Lam.
36However, even without consideration of Hue Lam’s subsequent gestures and statements to the police, I find Hue Lam’s proximity to her sister at the time of the admissions to 911 caller and her conduct upon arrival constitutes some evidence for the jury to consider whether Hue Lam impliedly adopted her sister’s statements to the 911 dispatcher.
37As stated by the Court of Appeal for Ontario in Robinson, the role of the trial judge at this stage “is to make a preliminary determination that some evidence of adoption exists before leaving the issue with the jury”: at para. 56, citing R. v. Warner (1994), 21 O.R. (2d) 136 (C.A.). If the issue is left with the jury, the trial judge is to instruct the jury to consider all the circumstances under which the statement was made before making a finding of adoption.
38In conclusion, I find adoption is available on the evidence. Ultimately, it will be up to the jury, upon a proper and cautious instruction, whether they wish to make such a finding.
Issue 2: Were Hue Lang’s statements and gestures to Cst. Tang made at the scene in breach of her right to counsel.
a. s. 10 analysis
39Officers De Los Santos and Brouillette arrived at the scene somewhere between 12:29 am and 12:36 am. After his arrival and upon being directed by the sisters to go upstairs, Cst. De Los Santos told the sisters “just stay there.” Chau Lam replied, “Yeah, I know. I know. I know. I do not go anywhere.” The direction and response are both heard on the 911 call.
40At approximately 12:37 am, Cst. Tang arrived at the scene. In addition to Officers De Los Santos and Brouillette, Staff Sgt. Saunders had also just arrived. The paramedics had entered the home and were upstairs trying to revive the victim. Cst. Tang was in police uniform. He had been with the Ottawa Police Service (OPS) for four-and-a-half years. Prior to his arrival, he heard on the radio that there was a report of a possible homicide and the 911 caller had said “someone killed my mom.” In addition, he heard that the door to the residence was open, that the victim had suffered a hammer blow to the head, and that additional assistance was required. While enroute to the scene, he received information that a Vietnamese interpreter was required.
41Upon his arrival, Staff Sgt. Saunders directed Cst. Tang to remain with the Lam sisters in the kitchen. Cst. Tang observed Chau Lam sitting slumped in a chair. She had a blank look on her face and was staring. Hue Lam was sitting away from the kitchen table on another chair. He described her as sitting there quietly, straight faced, and staring at the wall unless answering his questions. Both women appeared to be of East Asian descent.
42Upon entering the kitchen, Cst. Tang saw a Chinese calendar on the wall and decided to “try his luck” at communicating with the sisters in Cantonese. He asked them if they understood Cantonese. Hue Lam stated in broken Cantonese that she understood “a little.” Chau Lam nodded yes. He asked the same question again and both sisters nodded yes. He asked in Cantonese if they could tell him their names. Hue Lam shook her head which he interpreted as not understanding the question while Chau Lam did not respond at all. In cross-examination, he acknowledged that it was reasonably possible to infer from this that they did not want to give him their names, but he did not infer that.
43Cst. Tang then asked while pointing upstairs, “Who is the person upstairs in the house?” Hue Lam replied “daughter” pointing to herself and “sister” pointing to Chau Lam. He asked if they had any identifying documents and they shook their heads. He pulled out his own driver’s license, and they then proceeded to pull out their purple Ontario Photo Identification cards. He learned from the cards that Hue Ai Lam was 63 years of age and Chau Khan Lam was 59 years of age. He radioed their names, ages, and dates of birth to police dispatch. At this juncture, a paramedic approached Cst. Tang and asked him to question the sisters about the identity and medications of the person upstairs. Cst. Tang tried asking this information in Cantonese but did not get a response. He saw that on a kitchen shelf behind him there were several bottles of medication and none of them appeared to belong to the sisters. He asked Hue Lam if the victim had any illnesses, and she did not provide an answer.
44Staff Sgt. Saunders then approached Cst. Tang and gave him a number for Cultural Interpretation Services and asked that he obtain an interpreter. Cst. Tang paused his conversation with the sisters to contact the interpretation service. He was told he would be contacted when a Vietnamese interpreter was available. Cst. De Los Santos then interrupted Cst. Tang and asked if he could obtain an identification for the victim. Cst. Tang informed him that he had sent some medication with the paramedic which might identify the victim.
45Cst. Tang then resumed speaking with the sisters and asked Hue Lam in Cantonese “What happened?” She replied in Cantonese “this week” and then clarified “Monday” and then stated, “She hit me” while simultaneously making a motion of hitting her right fist on her left forearm. Hue Lam added in Cantonese that her mother had been yelling at her all week. Cst. Tang asked, “Who hit you?” Hue Lam replied that her mom had hit her and pointed upstairs. Cst. Tang asked again, “Your mom hit you?” in both Cantonese and English. Hue Lam nodded. Hue Lam continued to tell Cst. Tang in small bits of Cantonese, “When I was younger, she yelled at me, she was aggressive, she hit me.” As she was saying these things, Hue Lam continued to gesture with a hitting motion using her right fist to hit her left arm and then repeating the same gesture with the opposite hand and arm. Hue Lam then took her right and left fists upwards and started hitting her head. She was staring at him while doing this, and he described it as a very purposeful stare. Chau Lam did not say anything.
46Cst. Tang confirmed with Hue Lam that her mom hit her when she was younger, and she nodded and said “yes” in Cantonese. Cst. Tang looked at Chau Lam again and she still did not say a word to him. He concluded they were both in shock due to their mother being possibly deceased. Cst. Tang did not develop any suspicion that they were suspects to a homicide from this conversation. Rather, he concluded that they had a strained relationship with their mother, were subject to physical and verbal abuse, and may have been possible witnesses to a homicide.
47Cst. Tang then asked, “What happened here?” Hue Lam did not verbally respond. Rather, she pointed to herself and then pointed to her sister and then put her hands together in fists, lifted them up, and gestured downward in a striking motion towards her legs. Cst. Tang testified he was shocked.
48At this juncture, Cst. Tang was interrupted by the radio. Cst. De Los Santos stated on the radio, “Don’t know if they were home or they came home to find her like this.” Cst. Tang replied, “This could be relevant for translation. One of them said she hit her, and they were arguing all week.” Cst. De Los Santos replied, “Looks like it happened up there because there is blood splatter on the wall, and we have to await translation.” This radio interaction with Cst. De Los Santos was recorded and played in court.
49Cst. Tang resumed his inquiry with the Lam sisters and asked them, “Both of you hit her?” and pointed upstairs to the victim. Hue Lam stared blankly before pointing once again at herself, then at Chau Lam, and then repeating the same downward motion with her fists towards her legs. At this point, Cst. Tang had reasonable grounds to believe the Lam sisters were active suspects in a homicide of their mother. Staff Sgt. Saunders poked his head into the kitchen and motioned to Cst. Tang to caution the Lam sisters. At 12:56 am, Cst. Tang issued a verbal soft caution stating in Cantonese, “Please don’t say anything else.” He also directed them in Cantonese to “Stay here please” and then stated in English, “We need to investigate.”
50Cst. Tang testified that throughout this action, both Lam sisters remained sitting in the same spots. They were very compliant. Neither tried nor expressed any desire to leave the kitchen. Chau Lam did not say a word throughout the interaction. A few minutes later, at 1:01 am, it was declared that the victim was pronounced dead. He then turned to the Lam sisters and asked if they understood what was happening in Cantonese, namely that the victim was dead and that they were both suspects in a murder/homicide. Both sisters nodded their heads.
51At 1:09 am, Tracy Tran, a Vietnamese interpreter phoned, and Cst. Tang arranged for each of the women to speak to her separately. Chau Lam went into the living room and appeared to become emotional, with her face turning slightly red and flushed. She curled up on the couch.
52At 1:15 am, Cst. Tang provided Hue Lam her right to counsel from his duty notebook which was translated by Tracy Tran. He divided the component parts of the right to counsel into smaller sentences for ease of translation. He advised Hue Lam that she would be under arrest for murder/homicide. Hue Lam asked, “Will there be an interpreter?” He replied, “Yes.” She asked if she would be in jail. He replied, “Yes.” Hue Lam indicated that she did not have a phone to call a lawyer, and Ms. Tran explained that she would be able to call a lawyer in private once she arrived at the jail. When asked if she wanted to speak to a lawyer, Hue Lam replied, “I don’t know.” Cst. Tang testified that there was nothing about Hue Lam’s responses that suggested she did not understand her rights. She seemed to focus intently on their conversation, and there were no major gaps in their communication. Cst. Tang testified that the questions and responses regarding rights went as follows:
At 1:21 am, he provided the initial caution from his duty notebook and Hue Lam replied, “I understand.” Hue Lam asked, “You said I can keep quiet, when?” Cst. Tang replied, “Now.” She stated, “I understand.”
At 1:26 am, Cst. Tang provided Hue Lam a secondary caution from his duty notebook. When asked if she understood, Hue Lam replied, “Not really.” He then explained the secondary caution again and this time she said, “I understand.” Cst. Tang told her that if she spoke to anyone else, not to let it influence her. She replied, “I don’t have to talk to anyone?” He replied, “No.” She replied, “Right now, I understand.”
At 1:31 am, Cst. Tang read Hue Lam her s. 524 arrest warning and Hue Lam replied, “Yes, I understand.”
53Cst. Tang transferred Hue Lam into the custody of Cst. Ross who performed the arrest and provided her with her rights to counsel and a police caution with Ms. Tran interpreting over the phone. Cst. Tang then handed his phone to Cst. Downer who arrested and provided Chau Lam her rights to counsel with the same interpreter.
54In cross-examination, Cst. Tang was asked when he believed, as a police officer, he had to give a person their right to counsel. He replied when there is a reasonable suspicion or grounds that a person has committed a crime. When asked if the Lam sisters were detained when he was speaking with them, he acknowledged he viewed them as detained because he would not have let them leave the house. When asked why he did not give them their right to counsel if they were detained, he replied because in his head, they were not suspects, but possible witnesses. He did not view that he was required to provide them reasons for being detained. He also acknowledged that the sisters were not legally obliged to give him their identification, but it would have been kind of suspicious if they did not. He testified he was satisfied with the authenticity of the identifications they provided, and it would be common practice to have police dispatch run their identification through the Central Police Information Center. Cst. Tang did not deny that the sisters spoke largely in response to his questions but were otherwise silent.
55Staff Sgt. Saunders did not testify during the voir dire. His evidence from the preliminary hearing was admitted. Staff Sgt. Saunders had been with the OPS for approximately 22 years at the time of the alleged offence. He heard the call for assistance and arrived at the residence around 12:36 am. Paramedics and some police were already present. He described the situation as being dynamic. Upon speaking to the various officers, he spoke to the duty inspector about the resources necessary to manage and secure the crime scene.
56At one point, Staff Sgt. Saunders observed Cst. Tang talking to two women in the kitchen who he believed to be relatives of the deceased, but he did not know what they were talking about. While he did not have a note of it, he acknowledged in cross-examination that he would have directed Cst. Tang to stay in the kitchen with the two women. However, when asked if he did so because the women were suspects, he disagreed. Staff Sgt. Saunders indicated he did not have it in his mind they were suspects. He briefly spoke to Cst. Tang who told him that the women were Vietnamese, but that they spoke some Cantonese and he was attempting to communicate with them in Cantonese. Staff Sgt. Saunders attempted, over the air, to ask for a Vietnamese speaking officer to attend and later, to obtain an interpreter from Languages of Life.
57While he could not provide the precise time, Staff Sgt. Saunders testified that Cst. Tang later informed him that one of the women was taking “responsibility for this,” at which time, he informed Cst. Tang to make sure that he cautioned the women that they did not have to say anything and to make very good notes of what he was saying. Cst. Tang also told him that the women were reporting they had been abused. Staff Sgt. Sunders had no recollection of telling Cst. Tang to await an interpreter before speaking with the Lam sisters.
58While he would have been the most senior officer present at the scene, Staff Sgt. Saunders was aware Cst. De Los Santos was present upstairs and viewed him as a confident and experienced officer. He did not have concerns with Cst. De Lost Santos managing things upstairs. He was aware that Cst. Tang was more junior.
59Counsel for both accused argue that upon consideration of the legal framework and factors for assessing detention as set out in the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Lam sisters were detained when speaking with Cst. Tang and consequently, he should have informed them of their right to counsel. One factor counsel emphasize is that Cst. Tang himself believed the sisters were detained. Counsel argue that the failure to provide the Lam sisters their right to counsel before proceeding with questioning resulted in a Charter breach, and Hue Lam’s statements and gestures should be excluded pursuant to s. 24(2) of the Charter.
60The Crown argues that not every interaction between an individual and the police will constitute a detention within the meaning of s. 10 of the Charter. Detention is a legal determination to be made objectively by the trial judge and upon consideration of a multitude of factors as set out in Grant. Cst. Tang’s own belief that the Lam sisters were detained is but one factor for consideration. In this situation, Cst. Tang was responding to a 911 call made by one of the Lam sisters, had no grounds to believe the Lam sisters were involved in the homicide, and was engaged only in preliminary questioning to determine what happened. In these circumstances, there was no detention within the meaning of s. 10 of the Charter.
61Sections 10(a) and (b) of the Charter state as follows:
- Everyone has the right on arrest or detention:
a. to be informed promptly of the reasons therefor;
b. to retain and instruct counsel without delay and to be informed of that right;
62Section 10 of the Charter states that the right to counsel is triggered upon arrest or detention. However, as explained in Grant, not every police interaction with a person constitutes a detention. The police are neither precluded from questioning persons in pursuit of an investigation nor are they required by s. 10 of the Charter to advise everyone they question that they are not obliged to speak with the police and entitled to legal counsel: Grant, at para. 38. Rather, it is for the trial judge to determine objectively based on the whole of the evidence whether a person was detained at the time of police questioning: Grant, at para. 43; R. v. Corner, 2023 ONCA 509, 167 O.R. (3d) 641, at para. 82. The rationale for this approach rests in the court’s attempt to balance individually protected rights and society’s collective interest in allowing the police to effectively investigate and prevent crime: Grant, at para. 39; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 1; and Corner, at para. 82.
63In Grant, the Supreme Court of Canada set out a legal framework for assessing whether there has been a detention. The Court stated that detention for the purposes of ss. 9 and 10 of the Charter “refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply”: at para. 44. See also R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 231; Suberu, at para. 25; and Corner, at para. 80.
64The Court acknowledged in Grant that in cases where there is no physical restraint or legal obligation to comply, it may be unclear whether a person has been detained: at para. 44. To assist a trial judge in determining whether a reasonable person in the circumstances of the Lam sisters would conclude they had been deprived by the state of the liberty of choice, the Court set out the following factors a trial judge may consider:
a. the circumstances giving rise to the encounter as the individual would reasonably perceive them: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focused investigation.
b. the nature of the police conduct including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
c. the particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
65The above-noted factors are not mutually exclusive, and some factual considerations may fit into more than one category: Corner, at para. 85. In some circumstances, the third category of Grant factors will be relevant to the analysis even if not raised at trial: R. v. Teng, 2021 ONCA 785, 158 O.R. (3d) 193, at para. 129.
66The determination of whether a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply is fact specific and context sensitive: Grant, at paras. 32, 43; Corner, at para. 82. Each case must be decided objectively on its own facts. However, in Grant, the Court reviewed some common encounters between police and individuals and suggested that in circumstances where the police are merely acting in a non-adversarial role and assisting members of the public, the essential character of detention may be lacking. As an example, the Court cited police responses to a 911 call where a reasonable person would understand that a police officer responding to such a call is not necessarily detaining the individuals encountered but trying to take control of the situation for which they have been called on to assist. Specifically, the Court explained at para. 36 of Grant:
We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable people understand that the police are not constraining individual choices, but rather helping people or gathering information. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual’s freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attract legal consequences for the concerned individuals. [Emphasis added.]
67Applying the Grant factors, subsequent decisions have found that a person was not detained during initial police questioning following a 911 call. In R. v. Teng, the appellant and landlord called 911 after the landlord discovered a dead body in the appellant’s apartment. The appellant told the 911 dispatcher that her husband had died several days earlier and that she did not know the cause of death. The appellant was still speaking to the 911 dispatcher when the police arrived. The first officer on the scene separated the appellant and the landlord and proceeded to speak to the landlord. A second officer arrived and described the situation as chaotic. He proceeded to ask the appellant what happened. At that time of his questioning, the officer did not know whether any crime had been committed and did not believe he had grounds to arrest or detain the appellant. In his mind, the questions he asked were the kind of questions he asked when he arrived at the scene in response to a 911 call. The appellant told him that her husband had died of a heart attack the previous day and that she had moved the body from the bedroom into the storage area. The appellant provided a similar response to the first attending officer when he proceeded to question her. The trial judge found both statements admissible.
68On appeal, the appellant argued that the trial judge failed to consider the third category of Grant factors, in particular, her status as a non-citizen and her rudimentary English skills, when assessing whether a reasonable person in her shoes would have felt an obligation to answer the police questions. The Court of Appeal for Ontario disagreed. They found that the trial judge correctly concluded the appellant was not detained at the time of questioning. While the appellant’s movements were restricted upon police arrival, those restrictions had to be viewed in the context of the appellant calling the police for assistance, the police finding a dead body secreted in a storage room, and the police needing to gain control of the situations and make inquiries about the reason for the 911 call: at paras. 122-123.
69The Court of Appeal noted that the issue of the appellant’s rudimentary language skills and her status as a recently arrived, racialized person, was not raised at the trial. Nonetheless, they could see no basis of how these factors would have affected the appellant’s perception of her interaction with the officers. It was the appellant who had called 911 and reported her dead husband’s body in the apartment. By placing the 911 call, the appellant expected and wanted the police to come to her house. The police conducted themselves professionally and in a non-threatening manner and asked the kinds of questions officers would be expected to ask in such a situation. In this context, there was no psychological detention.
70In R. v. Corner, the appellant called 911 and told the operator that the deceased had been shot during a “drug rip off.” The first attending officer arrived at the scene when the appellant was still speaking to a 911 operator. He inquired who had been shot and the appellant showed him the dead body on the floor of the garage. The officer then asked what happened, and the appellant told him the deceased was shot by intruders who were intent on stealing marihuana. At the time, the officer did not believe the appellant was a suspect in the shooting and therefore, did not provide him with rights to counsel or a caution.
71Shortly after, a second officer arrived and asked what happened. The appellant repeated a similar story to him. The second officer directed the appellant to sit in a police cruiser while he assisted the first officer in securing the scene. The second officer returned a few minutes later, escorted the appellant to a second police cruiser, and once seated, asked him what had happened. The appellant repeated a similar version of the same story. The second officer testified that throughout his encounter with the appellant, he did not view the appellant as a suspect. The trial judge admitted both statements.
72On appeal, the Court of Appeal for Ontario found that the appellant was not detained when he gave his statements to the police at the crime scene or while in the police cruiser. With respect to the initial statement, the Court of Appeal found that the evidence “strongly supports the conclusion that the appellant was not detained at the scene”: at para. 87. The Court of Appeal highlighted that the appellant had called 911 and in placing such a call, the appellant was requesting and expecting police assistance. After a brief physical detention, the police reasonably treated the appellant like someone who had just called 911 to report a shooting and had information to give to the police: at para 88.
73With respect to the statement taken in the police cruiser, the Court of Appeal noted that the location of an individual when questioned by the police is part of the totality of the circumstances to be considered in determining detention. The trial judge had found that the officer asked the appellant to “sit” in a cruiser on a cold February afternoon so he could gather a more detailed description of the homicide. The Court of Appeal concluded that in these circumstances, a reasonable person having called 911 would expect to report the details of the event to the investigating officers and would not view an invitation by an officer to provide such details while seated in the comfort of a police cruiser as an intrusion upon their liberty interest: at para 91. Furthermore, the officer’s conduct in relaying the information received from the appellant on the police radio is consistent with what would be expected of the officer who was gathering information at the time: at para. 92.
74Finally, the Court of Appeal rejected the argument that the trial judge failed to consider the second officer’s testimony that he would have pursued the appellant had he tried to walk away from the scene. The Court of Appeal found that what the officer may or may not have done, or believed, in a situation that never arose, is not particularly probative of whether a reasonable person in the appellant’s circumstances would believe they were detained: Corner, at paras. 94-95, citing R. v. Reid, 2019 ONCA 32, 370 C.C.C. (3d) 265, at para. 44 and R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at paras. 26-27.
75Scene statements following a 911 call were also found to be admissible in R. v. Ranhotra, 2022 ONCA 548. In that case, the appellant called 911 and informed them that his gun accidentally went off and that his girlfriend was shot in the head. At the scene, the officer who responded to the 911 call asked the appellant “what happened?” and the appellant replied that he was cleaning his gun, and it went off accidentally. The officer testified that the appellant was not arrested at the time but agreed that the appellant was not free to leave. As well, at the time the officer asked the question, he did not know how the gun was discharged, accidentally or otherwise, or by whom. However, the officer acknowledged that when he took the appellant by the arm and asked him the question, the appellant was detained. The trial judge found the appellant’s statements made at the scene were admissible.
76The Court of Appeal for Ontario agreed with the trial judge’s ruling and noted the situation was like the scenarios in R. v. Reid and R. v. Teng. The Court of Appeal found that there may be circumstances following a 911 call where the police must place limitations on an accused’s movements to sort out the situation, including attending to the condition of a victim, and this restriction on the accused’s liberty does not necessarily amount to detention: at paras. 34-35. In the circumstances in Ranhotra, the appellant was not physically detained as the officer’s conduct was undertaken for the purpose of assisting a mortally injured victim and not for the purpose of exercising “coercive authority” over the appellant: at para. 37.
77With respect to psychological detention, the Court of Appeal found that the officer’s subjective view that the appellant was detained may weigh in favour of a finding of detention, but only to a limited degree, because the question of whether an individual is detained is a legal question for the court to determine: at para. 36. In the circumstances, the questions posed by the officer did not transform the brief police-citizen encounter into a detention. Any reasonable person would expect emergency responders to ask what happened and the officer’s question was not asked in an aggressive or coercive tone: at para. 38.
78In this case, I find Cst. Tang did not subject the Lam sisters to any significant physical restraint when speaking with them to constitute physical detention. I also find, upon consideration of the Grant factors, that the Lam sisters were not psychologically detained.
79First, the interaction between the police and the Lam sisters occurred in the sisters’ own home following Chau Lam’s 911 call to the police. The police were not pursuing the Lam sisters as suspects of criminal activity. Rather, they attended the home because the Lam sisters had summoned their assistance through a 911 call. It was also clear that the Lam sisters were expecting the police to attend because notwithstanding the late hour, they left the front door open. Later in their statements to the detectives, they reported that they had changed into their clothes so they could present themselves before the police.
80Second, Cst. Tang’s questioning occurred at the very initial stages of the police investigation into the homicide where all the officers present – De Los Santos, Brouillette, Saunders, and Tang – were in the process of sorting out the situation: see Suberu, at para. 32. Each of the officers had arrived between 12:29 am and 12:37 am. Cst. Tang commenced his inquiries almost immediately upon entering the kitchen. Cst. Tang, like the other officers, was trying to determine the identity of the occupants of the home and what had transpired. Cst. De Los Santos was trying to determine the identity of the victim and what had transpired. The paramedics were trying to determine what, if any, medications the victim took.
81As noted in Grant, in assessing detention, the court must balance society’s interest in effective policing and protecting a detainee’s rights. Here, the police were investigating a homicide with no information about what had transpired or possible suspects. It would have been critical for the police to determine who was responsible for the victim’s condition, and if the suspect were at large. As stated in the case of R. v. Teng, and illustrated in the above-noted 911 cases, it would have been unusual for the officers not to ask the persons who summoned them to the scene what happened: see Teng, at para. 130.
82For this same reason, I find it was not necessary for Cst. Tang to await an interpreter before speaking to the Lam sisters. The police were at the preliminary stage of their investigation. Cst. Tang was aware that the 911 caller spoke Vietnamese and there would be a language barrier. While the police could have awaited an interpreter to ensure accuracy of the information being provided, given both women had affirmed they understood some Cantonese, Cst. Tang was entitled to rely on the communication tools available to effectively investigate the crime. Furthermore, while the language used is a factor for consideration, here the significant admission at issue is not what Hue Lam said in Cantonese, but what she gestured had happened. It was clear from her physical gestures that she understood what Cst. Tang was asking, and she repeated the gesture when asked a second time to confirm her response.
83Third, Cst. Tang’s questioning involved general professional inquiries. His questions were neither confrontational nor threatening. He asked the Lam sisters questions about their identity, their relationship to the victim, and what happened. While Cst. Tang sometimes asked direct questions like “Both of you hit her?” but these were follow-up questions to the answers or gestures provided by Hue Lam. His initial question of “What happened?” was general. His soliciting of information to determine what happened is consistent with the fact that he continued to relay the information to the other officers on the scene also trying to assess the situation and determine what happened: see Corner, at para. 92. There was nothing in the evidence to suggest that Cst. Tang was singling out the Lam sisters as suspects or as part of a focused investigation into a homicide. On the contrary, Cst. Tang was shocked when Hue Lam gestured that she and her sister had killed their mother.
84Fourth, the duration of Cst. Tang’s discussions with the Lam sisters as to what had transpired was limited. When Hue Lam repeated the gesture a second time, he concluded there were grounds to believe the Lam sisters had been involved in a murder/homicide and immediately provided a soft caution. Thereafter, he did not elicit any further information about the incident from them. While he could have stopped the questioning and provided the caution after the first gesture, I accept Cst. Tang’s evidence that he was likely shocked by the response and was at the same time interrupted by Cst. De Los Santos on the radio. When Cst. De Los Santos stated, “Don’t know if they were home or they came home to find her like this” Cst. Tang was still processing Hue Lam’s gesture and suggested to Cst. De Los Santos that he could have relevant information on this point. Cst. Tang then inquired again with Hue Lam who confirmed her response, by repeating the same gesture.
85Fifth, none of the officers, including Cst. Tang, harboured any suspicion with respect to the Lam sisters. Cst. Tang only knew prior to questioning the Lam sisters that the 911 caller had said “someone” killed their mom. He viewed the Lam sisters as possible witnesses, not suspects, when he initially asked what happened, and this perception continued even after Hue Lam disclosed to him that she had been hit by her mother. He then went on to inquire “What happened here?” as one would have expected an officer to do in these circumstances upon receiving a 911 call and knowing that an elderly person was in a perilous condition upstairs.
86Sixth, Cst. Tang’s own opinion that the Lam sisters were detained, in that he would not have allowed them to leave, is not determinative. In assessing psychological detention, it is the overall police conduct that must be considered. While the subjective views of an officer as to whether there was detention is a factor to be considered, those views are not in and of themselves determinative of detention: see Corner, at para. 97; Grant, at paras. 30-32, 44.
87Seventh, Cst. Tang did not make any restrictive request or demand of the Lam sisters or physically touch the sisters while talking to them. While Cst. De Los Santos directed the Lam sisters to stay put and they were effectively confined to the kitchen from that point, there may be some circumstances where the police may restrict the movement of a 911 caller so they can assess the situation, including caring for an injured person, and this restriction does not amount to detention: see Corner, at para. 91; Teng, at paras. 121-122. The location of the individual when question is but one factor to be considered: Corner, at para. 90. In this case, the Lam sisters had called 911 for police help and directed Cst. De Los Santos to look upstairs where their mother was located. A reasonable person would expect that having summoned the police for help, the police would have to necessarily address their mother’s condition upstairs and consequently, would not view the direction to stay put and the confinement to the kitchen while this was being done as an intrusion upon their liberty interests: see Corner, at para. 91.
88Finally, in arriving at the finding that the Lam sisters were not detained, I have considered their personal circumstances including their elderly age and language skills. While the Lam sisters spoke limited English, they were not newcomers and have been in Canada since the early 90s. The Lam sisters appeared to comprehend much of what Cst. Tang stated either by way of Cantonese or through his gestures, including taking out their own identification cards when observing him take out his driver’s license. Hue Lam did not have any difficulty communicating responses to Cst. Tang’s question by way of gestures. Despite their limited English language skills, both sisters appeared to want to report what had happened. Chau Lam informed the 911 dispatcher and Hue Lam informed Cst. Tang, not once, but twice, that she and Chau Lam had struck their mother. In addition, neither sister appeared to have any cognitive challenges. For example, even when being given their Charter rights following their arrest and during their subsequent interviews, they sought clarification if they did not understand anything and were able to articulate back to the officer what things meant.
89For all these reasons, I find the Lam sisters were not detained when questioned by Cst. Tang, and he was not required to provide them their right to counsel prior to asking them what happened. I find Defence has not established that the statements made by Hue Lam were made in breach of her right to counsel pursuant to s. 10 of the Charter. If I am incorrect, I would find that the statements should not be excluded pursuant to s. 24(2) of the Charter.
b. s. 24(2) analysis
90The Supreme Court of Canada in Grant set out a three-pronged test that must be applied when considering the admissibility of evidence under s. 24(2) of the Charter. The Grant inquiry involves examining the impact of the admission on public confidence in the administration of justice over the long term, based on a balancing of (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the accused’s Charter-protected interests; and (iii) society’s interest in the adjudication of the case on its merits.
i. Seriousness of the Charter infringing state conduct
91The first line of inquiry relevant to a s. 24(2) analysis requires the court to consider whether admitting the evidence would send a message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. The more severe or deliberate the state misconduct, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence linked to the conduct: Grant at para 72.
92The main concern is to preserve public confidence in the justice system. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances such as the need to prevent the loss of evidence may mitigate the seriousness of police misconduct: Grant, at paras. 74-75; R. v. Singh, 2016 ONSC 1144, at para. 34 (“Singh (ONSC)”);
93Good faith will also reduce the need for the court to dissociate itself from the police conduct, but this does not include negligence or wilful blindness by the police. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean on this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct were part of a pattern of abuse, such conduct would support the exclusion of the evidence: Grant, at para. 75; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 39; Singh (ONSC) at para. 34.
94Here, I do not find the breach to be serious. Cst. Tang and the other attending officers were summoned by the Lam sisters to their home for assistance. Cst. Tang questioned the Lam sisters to advance the investigation, which included obtaining information necessary to assist the victim upstairs who was in perilous conditions. The Lam sisters were not suspects at the time of the questioning, and the questioning was limited to asking about what happened – a line of inquiry that is reasonably expected of officers and supported by the jurisprudence in the context of circumstances following a 911 call: see Teng, at para. 130. There was no evidence of bad faith conduct on the part of Cst. Tang. Following the admission, Cst. Tang ceased questioning, and none of the officers attempted to elicit further information until the sisters could speak to counsel with an interpreter.
ii. Impact of the Charter breach on the accused
95The second prong of the inquiry focuses on the seriousness of the impact of the breach on the Charter-protected interests of the accused. The impact may range from “fleeting and technical to profoundly intrusive.” To determine the seriousness of the infringement from this perspective, one must look at the interests engaged. For example, the interests engaged where a statement to the authorities is obtained in breach of the Charter includes the s. 7 right to silence or to choose whether or not to speak to authorities - all stemming from the principle against self-incrimination. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute: Grant, at paras. 76-77; Singh (ONSC), at para. 38.
96I find the impact of the breach was minimal. At the time Hue Lam made the statement, Chau Lam had already admitted that she and her sister killed their mother to the 911 dispatcher. Both sisters were later given a full opportunity to exercise their right to counsel by speaking to duty counsel with an interpreter and repeated the admission appeared to be resigned to speak to the police. As discussed below, whatever advice they had received following their calls with counsel, both sisters continued to express a desire to inform the detectives in their videorecorded statements the abuse they experienced from their mother and why they resorted to killing her: see R. v. Veltman, 2024 ONSC 2276, at para. 142.
iii. Society’s interest in the adjudication of the case on its merits.
97The third line of inquiry under the Grant test requires the court must determine whether the truth-seeking function of the trial is better served by the admission of the evidence, or by its exclusion. This inquiry reflects society’s collective interest in ensuring cases proceed on their merits. The court is obliged to consider the impact of the admission of the evidence as well as the impact of failing to admit it. The reliability of the evidence is an important factor in this step of the analysis. If the Charter violation undermines the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence can also undermine the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute: Grant, at paras. 79-84; Singh (ONSC), at para. 53.
98Defence argues that given the seriousness of the first-degree murder charges and the consequences upon conviction, the expectation for Charter compliance is high. While this is correct, the seriousness of the charges also merits society’s interest in its adjudication on its merits. Here, there is considerable reliability between the admissions made on the 911 call, the statements and gestures to Cst. Tang, and the later inculpatory statements made to Detectives Séguin and Brennan. While the statements and gestures to Cst. Tang are not as exhaustive as the later videorecorded statements made to the detectives, it remains an important piece of evidence in support of a serious charge. The public has a heightened interest in seeing that such crimes are tried on their merits.
99I find upon consideration of the Grant factors that the inclusion of the statements and gestures made to Cst. Tang at the scene would not bring the administration of justice into disrepute, and the statements and gestures are admissible pursuant to s. 24(2) of the Charter.
Issue 3: Were Hue Lang’s statements and gestures to Cst. Tang made voluntarily?
100The law does not preclude officers from questioning civilians and making inquiries upon their arrival at the scene of an investigation. However, the common law confessions rule provides that any statements of the accused to a person in authority, such as police officers, are presumptively inadmissible, and the Crown bears the burden of proving these statements are voluntary beyond a reasonable doubt. Counsel for Hue Lam argues that the Crown has not established that Hue Lam’s statements and gestures to Cst. Tang were made voluntarily.
101The common law rule seeks to protect against false confessions. While voluntariness is the touchstone of the rule, this concept overlaps, yet is not necessarily co-extensive, with reliability: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47, 69. On the question of voluntariness, the focus is on the police conduct and its effect on the suspect’s ability to exercise his or her free will: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 36 (“Singh (SCC)”).
102The confessions rule strives for a balance between on the one hand, the right of the accused to remain silent and against self-incrimination, and on the other, the legitimate law enforcement objectives of the state relating to the investigation of crime: R. v. Tessier, 2022 SCC 35, [2022] 2 S.C.R. 660, at para. 69.
103A statement will be found to be involuntary where it results from threats or promises, oppression, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence: Tessier, at para. 68; Oickle, at para. 35. However, these factors are not a checklist. The analysis is contextual. Ultimately, the trial judge must determine based on the whole context whether the accused’s statements were reliable and whether the state’s conduct served to unfairly deprive the accused of their free choice to speak to a person in authority: Tessier, at para. 68; Veltman, at para. 87; R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at paras. 47-48.
104One of the factors relevant to the analysis is the absence of a standard police caution to the detainee: Tessier, at paras. 78-79. See also R. v. Bottineau, 2011 ONCA 194, 276 O.A.C. 173, at para. 86. However, the absence of a caution is not determinative. Consideration must first be given to whether the interviewee was a suspect. Even if it is found that they were a suspect, the absence of a caution is prima facie evidence of an unfair denial of the choice to speak to police, but not necessarily dispositive of the issue of voluntariness. The Crown may be able to prove that the suspect nonetheless maintained their ability to exercise the free choice to speak because there were no signs of threats or inducements, oppression, lack of an operating mind, or police trickery: Tessier, at paras. 83, 85, and 89; Beaver at paras 50 to 53. In Tessier, at para. 89, the Court summarized the approach to be taken where an accused brings a claim with respect to police questioning that did not include a caution as follows:
In summary, the confessions rule always places the ultimate burden on the Crown to prove beyond a reasonable doubt that a statement made by an accused to a person in authority was made voluntarily. When an accused brings a voluntariness claim with respect to police questioning that did not include a caution, the first step is to determine whether or not the accused was a suspect. If the accused was a suspect, the absence of a caution is prima facie evidence of an unfair denial of choice but not dispositive of the matter. It is credible evidence of a lack of voluntariness that must be addressed by the court directly. Depending on the circumstances, it is potentially relevant to different Oickle factors as well as any other considerations pertinent to voluntariness. However, the absence of a caution is not conclusive and the Crown may still discharge its burden, if the totality of the circumstances allow. The Crown need not prove that the accused subjectively understood the right to silence and the consequences of speaking, but, where it can, this will generally prove to be persuasive evidence of voluntariness. If the circumstances indicate that there was an informational deficit exploited by police, this will weigh heavily towards a finding of involuntariness. But if the Crown can prove that the suspect maintained their ability to exercise a free choice because there were no signs of threats or inducements, oppression, lack of an operating mind or police trickery, that will be sufficient to discharge the Crown’s burden that the statement was voluntary and remove the stain brought by the failure to give a caution.
105Similarly, delays with implementing the right to counsel are relevant to voluntariness because it exacerbates vulnerability during a situation involving marked disadvantage by the detainee: see Suberu, at paras. 40-41.
106Upon review of the contextual circumstances present in this case, I do not find that Hue Lam’s statements and gestures to Cst. Tang were involuntarily made.
107First, for reasons already provided, I do not find that Hue Lam was detained within the meaning of s. 10 of the Charter, and hence, the absence of the right to counsel does not, in and of itself, undermine voluntariness.
108Second, I find there is no evidence that Cst. Tang or any of the attending officers to the crime scene viewed the Lam sisters as suspects to warrant a caution before speaking to them. Cst. Tang’s knowledge of the events at the time of his questioning was limited. He had no reason to believe the Lam sisters were suspects or implicated in any criminal activity. In this regard, there was no concerns that they might incriminate themselves. This mindset is reflected in the fact that Cst. Tang asked general, rather than pointed questions, and once he determined the Lam sisters were suspects to a murder, he refrained from further questioning and provided the sisters with a soft caution: see Tessier, at paras. 81-82.
109Third, the context in which the questioning occurred is critically important. Here, the police and Cst. Tang were at the very preliminary stage of their investigation after Chau Lam called 911 and requested police assistance. While Chau Lam made the call, there is evidence that Hue Lam was in close proximity and would likely have known her sister had summoned the police and disclosed that she and her sister killed their mother. Hue Lam would also have been aware that one of the two front doors was open for the police. Upon police arrival, Hue Lam did not resile from police questioning. On the contrary, Hue Lam was cooperative and willing to provide the police the information requested.
110Fourth, I do not find that the use of Cantonese placed the Lam sisters at an unfair advantage. The sisters were willing to respond to questions whether in English or Cantonese to explain to the police what had happened. Chau Lam responded to one question regarding the request for identification cards but did not respond to others. Hue Lam was more forthcoming with information. When she could not articulate the response in Cantonese or English, she did not hesitate to explain by way of gestures what had transpired between the sisters and mother both historically and on the night in question.
111Fifth, I do not find the conditions under which the questioning occurred to be oppressive or in circumstances where police conduct affected the ability of the Lam sisters to exercise their free will as was the case in Singh (SCC). While the kitchen space was small, the sisters were in the comfort of their own home and had invited the police in. They were directed by Cst. De Los Santos not to leave, but they did not appear surprised by this directive. Chau Lam replied, “I know. I know. I know. I not go anywhere.” This is likely because having summoned the police and informed the 911 dispatcher that they killed their mother, they did not desire to leave or expect the police to allow them to leave.
112Finally, there is no evidence that Cst. Tang or any of the officers involved engaged in any threats, inducements, promises, or police trickery. There is no evidence that the Lam sisters lacked an operating mind. Cst. Tang simply asked what happened and Hue Lam explained by way of gestures that she and her sister had hit or struck their mother. The non-confrontational nature of the police conduct and questioning at the crime scene is corroborated by the subsequent interviews with the detectives wherein neither sister made any complaint about police treatment.
113For all these reasons, I find Hue Lam’s statements and gestures were voluntarily made.
Issue 4: Are Hue Lam’s statements and gestures to Cst. Tang adoptable by Chau Lam?
114I find there is evidence in Chau Lam’s conduct before and after the interaction with Cst. Tang combined with her silence at the time Hue Lam made the statements and gestures to Cst. Tang that could support an inference that she adopted her sister’s statements and gestures as true: see Millard, at para. 91. In arriving at this finding, I rely on the jurisprudence on the adoption of statements set out above.
115The acts of adoption include the fact that Chau Lam called 911 earlier and admitted to the dispatcher that she and her sister killed their mother. Furthermore, upon police arrival, both she and her sister pointed upstairs to where their mother was found injured. Hence, a jury could reasonably infer that Chau Lam knew the reason for the police arrival and would reasonably have expected the police to inquire with the sisters about what had happened. In this regard, Chau Lam would have been aware of the subject matter of Cst. Tang’s inquiries and Hue Lam’s responses to those inquiries.
116In addition, Chau Lam was present in the kitchen when Hue Lam responded to Cst. Tang’s question about what happened, and furthermore, Hue Lam’s gestures specifically implicated her in the involvement of their mother’s death. Chau Lam would have heard Cst. Tang’s question and then observed Hue Lam point towards herself, point towards Chau Lam, point upstairs towards their mother, and then act out the striking down motion. The question from Cst. Tang and Hue Lam’s response were repeated a second time. On neither occasion did Chau Lam, having been implicated by her sister in the conduct, speak up to protest or clarify, even by way of gesture, which one would have reasonably expected her to do if she were being falsely accused by her sister or disagreed with Hue Lam’s description of events: see Millard, at para. 103; Beauchamp, at para. 247.
117I have also considered Chau Lam’s condition at the time. Cst. Tang readily acknowledged that there was a language barrier. However, there was evidence that Chau Lam was able to understand some English. For example, a review of the 911 call illustrates that Chau Lam was able to communicate in English with the dispatcher, understood Cst. De Los Santos’ directive to remain in place, and nodded her head upon learning her mother was deceased when asked by Cst. Tang “do you understand what’s happening?” Chau Lam also acknowledged in her subsequent interview with Det. Brennan that she did speak “a little bit” of English.
118I have also considered that at one point before the admission was made, Cst. Tang considered that both sisters could have been in shock about the state of their mother upstairs. Cst. Tang also observed that about 15 minutes after Hue Lam’s admission and after their mother was pronounced dead, Chau Lam became emotionally upset when speaking to the interpreter and curled up on the couch. However, there was no evidence that Chau Lam was cognitively confused that evening. Chau Lam was able to converse with the 911 dispatcher, verbally respond to Cst. De Los Santos’ directions, respond to Cst. Tang’s request for identification, and upon arrest, comprehend the instructions provided to her.
119For these reasons, I find there is some evidence upon which a finding of adoption is available to the jury. It will be for the jury to apply the legal principles and determine, upon proper judicial instruction, whether the inference of adoption should in fact be drawn: Millard, at paras. 91-92; Robinson, at para. 56.
Issue 5: Was Chau Lam’s s. 10(b) Charter right breached due to the delay in her speaking with duty counsel?
a. s. 10(b) analysis
120Counsel for Chau Lam argues that her s. 10(b) Charter right was violated because of the delay in implementing her right to counsel. In particular, she was given her right to counsel at approximately 1:40 am but only spoke with duty counsel with an interpreter at 9:49 am. Defence argues that the police ought to have been more diligent in obtaining duty counsel and a Vietnamese interpreter. The Crown argues that while the eight-hour delay is undesirable, it is not attributable to police conduct, but rather the challenge in obtaining interpretation services in the middle of the night. The steps taken by the police were reasonable. Furthermore, the police made no attempt to elicit any evidence from Chau Lam in the interim.
121Below I have set out the steps taken by the police to inform Chau Lam of her right to counsel and the time at which she was finally able to exercise that right in the presence of an interpreter. All references to time are to the a.m. hours of October 31, 2022.
122Cst. Downer testified that he arrived at the Lam residence at 1:06. He was tasked to assist Cst. Tang with the arrest and transport of the Lam sisters to the cells. He was informed that the arrest was to be done with assistance of a Vietnamese interpreter from the service Languages of Life. He waited from about 1:15 to 1:40 until an interpreter was available. During this time, he observed Chau Lam on the couch. He described her condition as neither distressed nor injured.
123Between 1:40 and 1:48, Cst. Downer informed Chau Lam in the presence of interpreter Ms. Tran that she was under arrest for murder. He provided her with her right to counsel, primary and secondary caution, and s. 524 arrest warning. In response to each piece of information, she replied that she understood. At 1:44, when Cst. Downer asked her if she would like to speak to a lawyer, Chau Lam replied, “I don’t know.”
124Cst. Downer inquired with Chau Lam whether she suffered any medical issues and arranged for her to retrieve her back pain medication. At 1:59, she was placed in the police cruiser and taken to the police detachment. Between 2:06 and 3:15, Cst. Downer and Chau Lam remained in the police cruiser in the sally port of the police detachment until such time as Chau Lam could be processed. He described her as being quiet throughout this time. He did not elicit evidence from her.
125Between 3:15 and 3:18, Cst. Downer escorted Chau Lam into the cells. She was paraded and searched by a female officer. Cst Downer confirmed to cell block Sgt. Edens that Chau Lam had been given her rights. Chau Lam was taken to Forensic Identification Services and provided another secondary caution. The interpreter was on the phone during all these processes.
126At 3:33, Chau Lam was taken to the main booking area of the police detachment. Officers Downer and Tang were both present with interpreter Ms. Tran was on the phone. Cst. Downer instructed Chau Lam on her right to call a lawyer, provided her a list of lawyers, and explained how to call counsel. At 3:40, Ms. Tran explained to Chau Lam her right to counsel, including the right to choose her own counsel and to have an interpreter present. Chau Lam requested to contact Legal Aid Duty Counsel and for a Vietnamese interpreter to be present. Consequently, at 3:44, Cst. Downer called duty counsel. The call went to voicemail, and he left a message that Chau Lam spoke Vietnamese and for duty counsel to call back. By 4:00, duty counsel had still not called back. Cst. Downer then moved Chau Lam to her cell and informed the cell block sergeant that she was awaiting a call from duty counsel.
127Sgt. Edens did not testify. However, the Crown filed as part of a list of admissions the OPS Prisoner Log Synopsis for Chau Lam. The log corroborates Cst. Downer’s evidence with respect to the timing of the call to duty counsel around four and notes lawyer entry was created to document the message left to duty counsel. Between 4 and 6:55 there is no further action. Chau Lam is provided medication at 6:55 and then moved to the lawyer booth at 8:20.
128Just after 4:00, Detectives Séguin, McLinton, and Brennan held a second police team meeting about the investigation. Cst. Tang informed the team of Hue Lam’s admissions. Cst. Tang also informed them that Cst. Downer was facilitating Chau Lam’s call with duty counsel and an interpreter. Consequently, Det. Séguin, the lead investigator, understood steps were being taken to facilitate that call.
129The meeting ended just after 5:00. Det. Séguin was aware that he had two female suspects in custody for murder and that it was important to find a Vietnamese officer to assist with the police interviews. He was mindful that he would also have to present the Lam sisters for bail proceedings later that morning and wanted to complete the police interviews. Det. Séguin contacted three Vietnamese officers within the police force to see if they could assist with the police interviews. When these efforts did not prove fruitful, Det. Séguin contacted Immigration Women’s Services of Ottawa (IWSO) to see if they could provide a Vietnamese interpreter. He was told that one interpreter would attend to assist with the interviews at 8:00.
130Det. Séguin then attended the cell block at 7:44 to speak with Sgt. Lebeau to confirm the names of the lawyers the Lam sisters had spoken to. He learned at this time that while Hue Lam had spoken to duty counsel Daniel Paul, Chau Lam was still awaiting a call back from duty counsel. Det. Séguin then took it upon himself to call duty counsel himself. He left a detailed message that the Lam sisters were in custody for murder and one of them was still waiting to speak with duty counsel. He requested they call the police back immediately. Det. Séguin then tasked Det. McLinton to liaise with Languages of Life to obtain an interpreter for the call with duty counsel. Her evidence is discussed below.
131Staff Sgt. Lebeau testified that he started his shift at 5:45 and was briefed by the previous cell block sergeant. With respect to Chau Lam, he confirmed that she was brought in at 8:24 to speak with duty counsel Peter Ghakiri without an interpreter. Mr. Ghakiri advised he needed a Vietnamese interpreter and Chau Lam was returned to the cells to arrange for this.
132Following that call, Det. McLinton became involved and spoke directly to Mr. Ghakiri at 8:47. Mr. Ghakiri informed her there were no Vietnamese interpreters available for potentially the next two hours. Det. McLinton called Languages of Life and noted that their mailbox was full. She decided to obtain an interpreter from IWSO for the call with duty counsel. On her first call to IWSO, she was told to call back at 9:00. She made repeated calls at 9:01, 9:04, 9:07, and 9:08. At 9:22, someone from IWSO called her back to advise that they could provide her with a Vietnamese interpreter, Duong Nguyen. Det. McLinton relayed this information to Sgt. Lebeau and asked him to facilitate a call between the interpreter, duty counsel and Chau Lam.
133Sgt. Lebeau testified that when he received this request from Det. McLinton, he was busy facilitating the release of another prisoner. At 9:42, he called Mr. Ghakiri and informed him that an interpreter from IWSO had been found. Finally, at 9:49, Chau Lam was spoke with duty counsel Mr. Ghakiri in the presence of interpreter Ms. Nguyen. The call ended at 10:07.
134Section 10(b) of the Charter requires police to advise a detained person of their right to speak with counsel without delay and, if the detained person wishes to exercise that right, the police must immediately provide the detainee with a reasonable opportunity to do so: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 25, citing Suberu, at paras. 38, 42 and R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at pp. 191-92.
135However, there may be circumstances where there is a justifiable delay in the implementation of the right to counsel. The reasons may relate to ensuring police or public safety or the preservation of evidence, but there is no closed list of scenarios where delay or suspension is justifiable. The burden is on the Crown to show that a given delay in facilitating access to counsel was reasonable in the circumstances, and the determination of whether delay is reasonable is a factual inquiry: Rover, at paras. 26-27; Taylor, at para. 24.
136In R. v. Shang En Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, Di Luca J. provides a useful summary of the circumstances in which delay may be justified based on the emerging caselaw. One of those categories includes circumstances where there might be a need to await an interpreter. Justice Di Luca provides the following summary of circumstances at para. 78:
a. Cases where there are safety concerns for the police: see R. v. Grant, 2015 ONSC 1646, at para. 107, R. v. J.J., 2010 ONSC 735, at paras 276-78; and R. v. Learning, at para. 75;
b. Cases where there are safety concerns for the public: see R. v. Thind, 2011 ONSC 2054, at paras. 113-15, 122;
c. Cases where there safety concerns for the accused: see R. v. Strehl, 2006 CanLII 39572(Ont. S.C.), at para. 4;
d. Cases where there are medical concerns: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 8; R. v. Taylor, at para. 31;
e. Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation: see R. v. Rover, 2016 ONSC 4795, at paras. 66, 70; R. v. Kiloh, 2003 BCSC 209, at paras. 15, 38; and R. v. Salmon, 2012 ONSC 1553, at para. 92; and
f. Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has no telephone access justify some period of delay: see R. v. J.(K.W.), 2012 NWTCA 3, at paras. 29-30; R. v. Khairi, 2012 ONSC 5549.
137In assessing delay of the implementation of counsel arising from the need for an interpreter, one must keep in mind the police obligation to provide the accused an opportunity to meaningfully exercise the right to counsel. Where there are objective reasons to be concerned about the detainee’s linguistic abilities, the police must inform the detainee that the implementation of their right to counsel can occur in the detainee’s native language, either directly or through an interpreter, and take steps to implement such a consultation if the detainee requests: R. v. Nguyen, 2020 ONSC 7783, at paras. 24-26, citing R. v. Vanstaceghem (1987), 1987 CanLII 6795 (ON CA), 36 C.C.C. 142 (Ont. C.A.).
138The steps that a police officer is required to take in such circumstances may vary, but the police are expected to err on the side of caution to ensure the person fully understands his or her rights and is able to exercise them in a meaningful way: R. v. Hayatibahar, 2022 ONSC 1281, at para. 159. For example, in the case of Hayatibahar, the applicant was arrested at 10:00 pm but did not receive his informational rights to counsel through a Farsi speaking officer until the following morning at 8:00 am. Di Luca J. rejected the defence argument that the applicant’s 10(b) Charter right was violated because the police did not promptly act on the applicant’s desire to speak with a “free lawyer” and instead took a cautious approach in ensuring the applicant understood his rights to counsel and could exercise them effectively by awaiting the presence of a Farsi speaking officer. While there were other reasons contributing to delay, including the applicant’s own conduct, Di Luca J. did not find the 10-hour delay constituted a Charter breach.
139In these circumstances, I do not find Chau Lam’s delay in speaking with duty counsel resulted in a s. 10(b) Charter breach. While Chau Lam told Cst. Downer at the residence that she did not know if she wanted to contact counsel, that response in and of itself does not mean that she did not understand the right to counsel: see R. v. J.W.C., 2011 ONCA 550, 282 O.A.C. 231, at paras. 25-30. Notwithstanding that response, Cst. Downer explained to Chau Lam her right to counsel twice back at the police detachment with an interpreter. Upon Chau Lam’s request, Cst. Downer requested duty counsel and a Vietnamese interpreter at 3:44. When he did not hear back from duty counsel within 15 minutes, he let the cell block sergeant know accordingly.
140Thereafter, it was the understanding of all the officers that both Lam sisters had to speak to duty counsel with an interpreter before further information could be taken from them. While duty counsel Mr. Ghakiri spoke to Chau Lam at 8:24, he determined a further call was required with an interpreter and was waiting for one to become available.
141I find that everyone involved in the matter was waiting in good faith for an interpreter. As Det. Brennan testified, he was assigned at the second police meeting to interview Chau Lam. However, he also noted that between 3:20 and 8:20, there was not much he could do as he was awaiting the Lam sisters to speak with counsel with interpreters. Sometime around 8:20, he learned from Sgt. Lebeau who was responsible for everything in cellblock that duty counsel had been contacted and would be arranging for an interpreter for Chau Lam. Det. Brennan then asked for all names of persons that are involved. He testified he did this to document the efforts made by the police to get a counsel and an interpreter for the detainee.
142I also disagree with the suggestion that the lead detectives – Séguin, McLinton, and Brennan – could have done more in the intervening hours. The team understood from their meeting with Cst. Tang held between 4:00 and 5:00 that arrangements were being made in the cell block to facilitate calls with the Lam sisters and duty counsel in the presence of interpreters. Consequently, Det. Séguin, the lead investigator at the time, focused his attention on obtaining interpreters for the police interviews of the Lam sisters. When it came to his attention at 7:44 that Chau Lam had still not spoken to duty counsel, Det. Séguin took it upon himself to immediately contact Legal Aid and to secure interpretation assistance.
143Similarly, once tasked by Det. Séguin to follow up on the issue of interpretation services, Det. McLinton spoke to duty counsel Mr. Ghakiri herself. When she learned that Languages of Life could not provide an interpreter for two hours, she persistent thereafter in contacting IWSO. It was apparent that despite the efforts of multiple officers and duty counsel, Vietnamese interpreters were not readily available in the middle of the night. In addition, the detectives were not looking to delay Chau Lam’s implementation of her right to counsel. On the contrary, they were eager that she do so to proceed with the police interview.
144In finding that a s. 10(b) breach did not result, I have considered that there was a gap as per the OPS Prisoner Log from 4:00 to 8:20 where Sgt. Edens did not initiate further contact with duty counsel. There is also evidence from interpreter Tran that after she hung up the phone, she had left her ringer on in case her interpretation services were required, but she did not receive a further call. I agree with the defence assertion that no explanation has been provided as to why she was not contacted to act as an interpreter with duty counsel and Chau Lam.
145Nonetheless, it is clear from Sgt. Lebeau’s evidence that the cell block sergeant is responsible for a variety of matters, including the safety of everyone in cell block. Furthermore, the Lam sisters were not the only detainees that the police were dealing with at the time. In addition, while it does not appear that Sgt. Edens was actively pursuing duty counsel on the status of their call back to Chau Lam, the Lam sisters were not forgotten about. Attempts were being made to secure duty counsel and interpreters because Hue Lam, who was processed in cells before Chau Lam, was able to speak to duty counsel with an interpreter by 3:30. In these circumstances, I do not find the four-hour gap determinative of a Charter breach.
146Finally, I find the case of R. v. Pileggi on which defence relies can be distinguished on its facts: 2021 ONCA 4, 153 O.R. (3d) 561. In Pileggi, the reasonableness of the delay did not relate to the practical challenges of obtaining an interpreter, but to a different factual context and category of delay. In Pileggi, the police had undertaken to ascertain the name of a lawyer from the appellant's father, but then failed to do so. The appellant reasonably relied on the police undertaking to facilitate his access to a private lawyer, and when this did not happen, he agreed to speak to duty counsel and was only able to do so more than three hours after his arrest. Here, Chau Lam requested to speak with duty counsel and to have a Vietnamese interpreter present. Attempts were made by both duty counsel and the police to find an interpreter but one was not readily available. The police rightly erred on the side of caution and respected her request.
147Upon examination of the whole of the evidence, I find the police were diligent in ensuring Chau Lam could meaningfully implement her right to counsel in the presence of an interpreter, and the delay in her being able to do so was not attributable to any shortfall in police conduct, but the practical challenge of accessing an interpreter at the time. I find the delay in the implementation of the right to counsel was reasonable and did not result in a Charter breach. If I am incorrect, I would nonetheless find the evidence of her subsequent statement to Det. Brennan admissible under s. 24(2) of the Charter.
a. s. 24(2) analysis
148For this analysis, I rely on the jurisprudence on s. 24(2) of the Charter set out above.
i. Seriousness of the Charter infringing state conduct
149Beginning with the first prong of the Grant test, I find the breaches not to be egregious and the reasons for delay understandable. While the gap in time was not desirable, it was imperative for the police to await an interpreter for Chau Lam to speak with duty counsel and interpreters were not readily available at the time.
150In both R. v. Hobeika and R. v. Pileggi, the Court of Appeal for Ontario found that notwithstanding the serious implementational delays in obtaining counsel of over four hours and three hours respectively, they were outweighed by the other Grant factors and upheld the trial judge’s decision to admit the evidence nonetheless: 2020 ONCA 750; 2021 ONCA 4.
ii. Impact of the Charter breach on the accused
151The delay did not adversely impact Chau Lam or the reliability of the subsequent evidence. Chau Lam had already admitted that she and her sister killed their mother. She was ultimately given full opportunity to exercise her right to counsel by speaking to duty counsel with an interpreter. Furthermore, there was no evidence that the informational delay impacted her understanding of her rights. Whatever advice she received following her call with counsel, she continued to express a desire to explain to Det. Brennan the historical abuse she experienced in the hands of her mother that prompted her conduct and how the killing was carried out: see Veltman, at para. 142.
iii. Society’s interest in the adjudication of the case on its merits
152The importance of the evidence to the Crown’s case is a factor that must be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution: Singh (ONSC), at para. 53; Grant, at paras. 79-84. While the exclusion of the statement to Det. Brennan would not terminate the prosecution given the availability of the 911 call, the subsequent statement to the Det. Brennan provides valuable information relating to the manner of the killing and some elements of planning. The statement is also consistent with the earlier statements and 911 call and evidence found at the scene. Society’s interest in the adjudication of the case on its merits warrants the statement being admitted.
153Even if a breach were found, I find that all factors under Grant favour the admission of the statement to Det. Brennan under s. 24(2) of the Charter.
Issue 6: Should a fresh start caution have been administered to Chau Lam, was it made, and if not, should the interview be excluded under s. 24(2) of the Charter?
154Where a Charter breach is established, the accused may argue that any subsequent statements taken from the police were “obtained in a manner” that infringe the Charter and are not admissible pursuant to s. 24(2) of the Charter. In such cases, the accused must demonstrate that there is an existing Charter breach and a sufficient connection between that Charter breach and the subsequent statement made by the accused. The connection may be temporal, contextual, causal, or a combination of the three. A remote or tenuous connection between the breach and the impugned evidence will not suffice: Beaver, at paras. 95-96, citing R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38; R. v. Plaha (2004) 189 OAC 276 at para 45; R. v. Wittwer, 2008 SCC 33 at para 21.
155If a breach is established, the police may make a fresh start by later complying with the Charter obligation and severing the connection between the breach and the subsequent statement. This requires a factual inquiry into whether the police effected a fresh start: R. v. Davis, 2023 ONCA 227, 166 O.R. (3d) 401, at para. 33; Veltman, at paras. 159-62. In Beaver, at para. 103, the Court set out a list of factors for consideration. The application of these factors to the facts of this case are addressed further below.
156In R. v. Veltman, Pomerance J. (as she then was) addressed the application of Beaver and the fresh start doctrine in circumstances akin to the current situation. In Veltman, the accused was also charged with first-degree murder. At issue were the admissibility of statements made during a 911 call, spontaneous statements made to an arresting officer at the scene, and videotaped statements to a police detective once at the police detachment.
157In assessing the fresh start doctrine, Pomerance J. (as she then was) emphasized the importance of the assessing the context in which the statements were made, the need for police to effectively investigate, that events may be unfolding rapidly, and that hindsight is not necessarily the lens through which to view police conduct: at paras. 8-9. Her Honour noted that the court must also consider the apparent attitude and intentions of the accused in wishing to speak with the police and this desire to speak is relevant to the s. 24(2) analysis: at para. 12.
158More specifically with respect to fresh start, Her Honour noted that the central question is whether police conduct between the time of a s. 10(b) breach and the taking of a subsequent statement effectively severed any link between the breach and the evidence: at para. 159. This does not require that an officer announce he is going to provide a fresh start. An extensive, thorough, and meaningful recital can also have the effect of severing the link: at paras. 166-67.
159In this case, Cst. Tang informed the detectives at Team Meeting 2 that Hue Lam admitted to the crime by way of gestures at the residence. Defence argues that if it is found that the Lam sister’s Charter rights were violated when they spoke to Cst. Tang, then Detectives Séguin and Brennan should have affected a fresh start as set out in Beaver prior to interviewing them.
160While Beaver also involved a 911 call, the factual circumstances are distinct from this case. In Beaver, the police determined based on the 911 call and the information disclosed by Mr. Lambert to the dispatcher the residence should be treated like a crime scene. Consequently, the police immediately detained both Mr. Lambert and Mr. Beaver upon arrival at the residence. The detentions were made under the Medical Examiners Act, legislation that the detaining officer admitted did not exist and that he had meant to arrest the accused under the Alberta’s Fatality Inquiries Act R.S.A. 2000, c. F-9, which it was determined had no detention powers.
161Following the detention, another officer proceeded to question Mr. Lambert in the car by asking what had happened. The officer conceded during the voir dire that he should not have posed the question because Mr. Lambert had asked to speak to counsel. Mr. Beaver was similarly detained and questioned. Consequently, the Crown conceded and the trial judge agreed that the police breached ss. 9, 10(a) and 10(b) of the Charter in their initial interactions with the accused. Thereafter, one of the issues at trial and on appeal was whether the homicide detectives who conducted interviews wherein each accused confessed to the murder should have affected a “fresh start.”
162Given that I have found in this case that the were no earlier Charter breaches and the statements and gestures made to Cst. Tang were voluntarily made, I find there would have been no reason for either of the detectives to affect a fresh start prior to interviewing the Lam sisters. However, if I am incorrect and Cst. Tang did breach the Lam sisters’ Charter rights by failing to provide them their right to counsel and/or caution them before asking what happened, then upon consideration of the following factors set out in Beaver at para 103, I find that the subsequent interviews of the Lam sisters were not obtained in a manner contrary to s. 24(2) of the Charter.
i. Whether the police informed the accused of the Charter breach and dispelled its effect with appropriate language;
163Cst Tang stated to both Lam sisters “please don’t say anything else” shortly after he determined that they were suspects. Thereafter, the Lam sisters were provided their Charter rights and cautioned by both Officers Downer and Ross.
ii. Whether the police cautioned the accused after the Charter breach but before the impugned evidence was obtained;
164Both sisters were separated and arrested for murder. Both sisters were provided their rights to counsel and primary and secondary cautions on the scene with interpreter Ms. Tran on the phone. Both sisters confirmed they understood the rights being provided. Hue Lam specifically confirmed to Cst. Ross that she understood she could remain silent.
165The Lam sisters were also provided a secondary caution again during the Forensic Identification Process.
166As discussed further below, both detectives reviewed their rights with them again prior to addressing what had transpired.
iii. Whether the accused had the chance to consult counsel after the Charter breach but before the impugned evidence was obtained;
167When initially asked if she wanted to call a lawyer, Chau Lam indicated to Cst. Downer that she “did not know.” Notwithstanding this response, Cst Downer re-informed her of her right to counsel once back at the detachment and facilitated the exercise of her right to counsel. Hue Lam made a similar statement to Cst. Ross when asked if she wanted to speak to counsel. Her right to counsel was reviewed with her again at the detachment.
168Both Hue Lam and Chau Lam spoke to counsel with the benefit of an interpreter prior to providing their inculpatory statements to the police.
iv. Whether the accused gave informed consent to the taking of the impugned evidence after the Charter breach;
169Det. Séguin commenced his interview with Hue Lam at 8:31 am and Det. Brennan commenced his interview with Chau Lam at 10:34 am. Both sisters provided statements indicating that they had planned and killed their mother. They also both described the ongoing emotional and physical abuse they experienced while living with their mother all their lives.
170Unlike in the case of Beaver, I find the nexus between the alleged Charter breach (had one been found) and the subsequent police interviews would be tenuous at best. At the time of the police interviews, the Lam sisters had been in custody for just a few hours. Both had been provided their rights and cautioned. The police did not attempt to elicit any further information from either until they spoke to counsel with an interpreter. There was no evidence that either of them had been subject to any police threats, promises, inducements, or trickery.
171Furthermore, in Beaver the accused had been detained based on a statute that did not exist such that the breach would have been obvious to subsequent reviewing officers. Furthermore, the interviewing officer in Beaver had time to review the police file and assess the circumstances for Charter compliance prior to commencing the interview to determine whether to affect a fresh start. Here, the factual and temporal circumstances were highly distinct. The police were at the very preliminary stages of an investigation. They were briefed by Cst. Tang that one of the sisters admitted by way of gestures that she and her sister killed their mother in response to a question of “what happened” made following a 911 call summoning police assistance. I find that in these circumstances, it would not have been obvious to either detective that there existed the possibility of a Charter breach when Cst. Tang spoke to the Lam sisters, and consequently, the requirement to affect a fresh start.
172Nonetheless, both detectives Brennan and Séguin carefully confirmed during the interviews that each of the Lam sisters understood their Charter rights and had spoken to counsel prior to giving their interviews. Both detectives provided a secondary cautions prior to asking them what happened.
173More specifically, Detective Brennan confirmed with Chau Lam that she was provided and understood her Charter rights and caution. Chau Lam confirmed she understood her rights and spoke with a lawyer. When asked to explain her understanding of what these rights meant, Chau Lam stated: “The lawyer just called and said I have the rights to say nothing” and ““uh…he said that if saying…then court they will bring the recording…to court as evidence.”
174Detective Brennan explained to Chau Lam that all the police officers were persons of authority and that he did not want what any of those officers said to influence her in speaking with him to which Chau Lam replied, “Nobody says.” When Det. Brennan further broke down the caution and asked her what that means to her and whether anyone had forced her to say anything, Chau Lam replied “no, nobody.” When asked how the police had treated her, she replied good. When asked what she could tell Det. Brennan about the murder of her mother, she replied “I will say everything.”
175Detective Séguin confirmed with Hue Lam that she received and understood her Charter rights and caution and that she spoke with counsel prior to questioning her regarding the events. Detective Séguin also cautioned Hue Lam that that the police she met are persons of authority and that he did not want anything they said to influence her testimony. She replied that she understands. When asked to explain if she understands what her rights to be, she stated “said that uh…because the police officer…said if I want to keep silent, I can keep silent.”
176In addition, Det. Séguin also made it clear that if Hue Lam was not satisfied from her call with the lawyer, it was open to her to go back to cells and obtain another lawyer to speak to at which time Hue Lam stated she would like to keep this lawyer.
177Detective Séguin asked Hue Lam if she had any complaints since she was in police custody and she said “No, the thing they do right.” She denied that there were any promises or threats. When asked if she would like to tell him about what happened with her mother, she replied, following a short interruption to deal with the temperature in the room, that she already told the police this morning. Hue Lam then asked if she had to redo it at which point, Det. Séguin cautioned her she does not have to but if she wishes, she can do so as he is the lead investigator. Hue Lam replied, “I can talk. I can keep silent.” Det. Séguin confirmed she can keep silent if she wishes. Hue Lam interjected “what I know, if I tell him him, he can write it down as evidence” which Det. Séguin confirmed.
178Counsel for Hue Lam argues that a further exchange between the detective wherein Hue Lam makes the following remarks suggests she did not understand her Charter rights and the police were obligated to affect a fresh start. These remarks include:
HUE LAM: I don’t understand the laws. I don’t know if I should tell.
INTERPRETER: I don’t understand about the law. Should - I don’t know
DET. SÉGUIN: It –it’s–it’s her–it’s her choice.
INTERPRETER: It’s your choice.
DET. SÉGUIN: We need –but I would like to understand what happened to her mother.
INTERPRETER: But I want to understand what happened to your mother.
HUE LAM: I will just say it and go to jail.
INTERPRETER: Okay, so, I just say about it in order to go to jail?
HUE LAM: Because
INTERPRETER: Because...
HUE LAM: Because I don’t say it, the jail is light, and don’t go anywhere.
INTERPRETER: ...’cause if I don’t say anything, then - What is light jail?
HUE LAM: What?
INTERPRETER: My question for clarification. What is light jail?
HUE LAM: Jail is like staying in jail. Like being arrested. Like being locked up.
INTERPRETER: I understand, but what do you mean but light jail?
HUE LAM: Not that. I say if I tell..
INTERPRETER: If I speak…
HUE LAM: If I tell…is like you will write down and the charge will be more severe.
INTERPRETER: ...you take a note that, uh -my, um-my charge will – will be strong - stronger.
HUE LAM: I just saw it on TV. I don’t know.
INTERPRETER: ‘Cause that’s what I know from TV. That’s from -I know from
TV.
HUE LAM: If I keep silent, then the charge is lighter and I don’t have to sit in jail for long.
INTERPRETER: So, if I keep silent, then, uh, my charge will be light. So, I don’t stay in jail for too long.Hue Lam stated: “I will just say it and go to jail?”
DET. SÉGUIN: Well, I don’t agree with that, and –I don’t agree with that. You can tell her that, but- tell her that, and then we’ll, uh, talk about something else.
INTERPRETER: I don’t agree with that, but we can talk about something
HUE LAM: Now I want to report, just report, so my conscience doesn’t feel uneasy.
INTERPRETER: So –so, let’s speak. Let’s, uh, give the statement now, so my conscious doesn’t hurt - doesn’t, um, bother me.
DET. SÉGUIN: Okay.
HUE LAM: Because, because I was so angry.
INTERPRETER: Because I was so angry.
HUE LAM: So angry I murdered someone
HUE LAM: Mmm.
INTERPRETER: And after that...
HUE LAM: I felt
INTERPRETER: ...I felt...
HUE LAM: I felt guilty
INTERPRETER: ...I felt guilty.
DET. SÉGUIN: Okay.
HUE LAM: I am guilty, guilty, so I have to bear the consequence.
INTERPRETER: If I guilty, I have to – the consequences from it.
HUE LAM: Therefore, how many years does the government want to punish, then I will take that many years.
179I find that these remarks do not suggest that Hue Lam does not understand her right to silence but is assessing in her own mind the benefits of speaking further about the matter or not. Being unsure of whether to exercise Charter rights is distinct from not understanding them. I do not find in these circumstances Det. Séguin was obligated to affect a fresh start. As explained in Veltman, at para. 148:
The Charter protects individuals from interference by the state. It does not and cannot protect individuals from themselves. The case law is replete with examples of detainees not following their lawyers’ advice to remain silent. The factors that motivate detainees to speak are varied.
180I would also add that police officers may resort to various tactics in interviewing detainees so long as the questioning is not done in a manner such that the free will of the interviewee is overborne: Veltman, at para. 109. Here, neither detective used aggressive tactics to elicit information. There did not appear to be any need to because both the Lam sisters appeared to want to unburden themselves and speak of what had happened.
v. Whether the accused was released from detention after the Charter breach but before the impugned evidence was obtained;
181The Lam sisters were not released from custody before the statements were made.
vi. Whether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was obtained;
182The Lam sisters claimed they were well treated by police during their video recorded statements. Further, the police made no attempts to elicit any information or evidence from the Lam sisters between the interaction with Cst. Tang and the subsequent videorecorded interviews.
183In conclusion, I find that the opening recitals given by Detectives Séguin and Brennan to each of the Lam sisters at the outset of their interviews severed any connection to the prior breach (had one been found). The opening recitals were extensive, thorough, and meaningful. I find the Lam sisters’ statements to Det. Séguin and Brennan were properly obtained and did not result in a breach of s. 24(2) of the Charter.
Issue 7:Was Hue Lam’s statement to Det. Séguin voluntarily made?
184Counsel for Hue Lam argues that if the statement made by his client to Cst. Tang at the residence is found to be involuntary because Cst. Tang failed to provide a caution prior to asking what happened, then this court must consider whether her subsequent statement to Det. Séguin was tainted and involuntary.
185Counsel argues that just as Det. Séguin ought to have known that there was an earlier s. 10 Charter breach and therefore, effected a fresh start, he ought to have similarly known that Cst. Tang’s failure to caution impacted the voluntariness of Hue Lam’s earlier statement and that, as per the derived confessions rule, these tainting features continued into her interview with Det. Séguin thereby undermining the voluntariness of that statement: see R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 23, citing R. v. I. (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, at pp. 526-27; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 33; R. v. M.D., 2012 ONCA 841, 293 C.C.C. (3d) 79, at para. 53; and R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 189 O.A.C. 376 (C.A.), at para. 53.
186More specifically, counsel argues that Det. Séguin’s interactions caused Hue Lam to be confused about her right to silence and consequently, she was not exercising an informed and voluntary choice to speak further with the police. Counsel also highlights that Hue Lam complained about the cold temperature, a factor that the court must consider in terms of the totality of the circumstances to determine voluntariness.
187In support of his position, counsel relies on the cases of R. v. Plaha, R. v. Wittwer, R. v. S.G.T., and R. v. M.D. The first two decisions deal more specifically with Charter breaches and the training of subsequent statements, whereas S.G.T. and M.D. address more specifically the derived confessions rule and involuntary statements.
188In Plaha, the police elicited multiple statements from the appellant before he had a meaningful right to speak to counsel in the presence of an interpreter. The trial judge found four s. 10 Charter breaches and held the first three statements to be inadmissible. However, he found the fourth statement, made after the appellant had spoken to counsel, to be admissible, and if incorrect in that regard, concluded the statement was nonetheless obtained in a manner that did not contravene s. 24(2) of the Charter: at paras. 37-40.
189The issue on appeal was whether the fourth statement was tainted by the earlier breaches. The Court of Appeal for Ontario found that it was. The trial judge erred in failing to find a sufficient temporal connection as well as a contextual connection between the statements. The Court of Appeal held that a temporal connection involves more than just a computation of minutes and hours. The fourth statement had been taken as part of a continued interrogation process throughout the night, much of which was conducted while the police knew or ought to have known that the appellant was waiting to speak with counsel through a Punjabi interpreter. In those circumstances, the interrogating officer on the fourth statement should have made it clear to the appellant that his choice to speak would not be influenced by anything he had said earlier. The absence of any attempt by the police to make a fresh start to sever the connection with the earlier statements further contributed to the tainting of the fourth statement: at paras. 41-53. The Court of Appeal went on to note that the situation was also not one, as in other cases, where the evidence supported an inference that the appellant was determined to speak to the police: at para. 62, citing R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343.
190In Wittwer, an interrogating officer attempted to secure a confession based on two earlier statements that were impermissibly obtained by his colleagues. However, what the officer intended as a “fresh start” soon foundered. After more than four hours of fruitless interrogation, he and the appellant – in the officer’s words – were “at loggerheads”: at para. 2. Furthermore, in Wittwer, there was no dispute that the earlier statements had been obtained in a manner that infringed the appellant’s right to counsel or that the interrogating officer knew this. The court found that it was for this reason that the officer refrained for more than four hours before invoking the earlier statements to get the appellant to further incriminate himself at which time the appellant did so. at paras. 4, 22. Justice Fish, writing for the majority, found that in these circumstances, there was a temporal, causal, and contextual connection between the statements that rendered the later statement inadmissible under s. 24(2) of the Charter.
191In S.G.T., the Supreme Court of Canada reviewed the derived confessions rule as set out in I. (L.R.) and T. (E.). The Court held that the rule serves “to exclude statements which, despite not appearing to be involuntary when considered alone, are sufficiently connected to an earlier involuntary confession as to be rendered involuntary and hence inadmissible”: at para. 28. In assessing whether the subsequent statement is sufficiently connected to a prior inadmissible confession, the trial judge must follow a contextual and fact-based approach and may consider the following factors: i) the time span between statements; ii) inadvertence to the previous statement during the questioning; iii) the discovery of additional incriminating evidence following the first statement; iv) whether the same police officers are involved at both interrogations; and v) other similarities between the circumstances: at para. 29, citing I. (L.R.) and T. (E.), at p. 526.
192In S.G.T., the Court noted that subsequent statements may be excluded both on the basis of the derived confessions rule as well as the Charter. However, where the derived confessions rule would result in the automatic exclusion of a tainted statement, the question of exclusion following a Charter breach would be determined under s. 24(2): at para. 33. Ultimately, the Court concluded that there was insufficient evidence to connect the accused’s initial statement in which the accused had provided an apology to a subsequent email five weeks later in which he apologized to the complainant’s mother.
193In R. v. M.D., the appellant was a 14-year-old youth who spoke to the police initially at the time he was arrested for robbery and again three weeks later when summoned to the police station. Both police officers agreed that they had not complied with the requirement of the Youth Criminal Justice Act, S.C. 2002, c. 1 when they first spoke to the appellant. The appellant also testified at the voir dire that he had been slapped by one of the officers during the first interview.
194At para. 55, Watt J.A. reviewed and explained the derived confessions rule and the factors set out in S.G.T., discussed above, as follows:
The application of these factors will render a subsequent statement involuntary if either the tainting features that disqualified the first continue to be present, or if the fact that the first statement was made was a substantial factor that contributed to the making of the second statement: T. (E.), at p. 526; G. (B.), at paras. 21 and 23. It will generally be easier to establish that tainting affected the first when both these conditions are present. In the end, however, what matters most and mandates exclusion is that the connection is sufficient for the second to have been contaminated by the first: G. (B.), at para. 23.
195I find the above-noted cases, while of assistance in setting out the applicable principles are, nonetheless, distinguishable from the factual circumstances before me. In arriving at this decision, I have considered the entirety of Hue Lam’s statement, but more specifically the exchanges between Det. Séguin and Hue Lam highlighted by counsel as having tainted the voluntariness of the statement. Those passages are set out in my earlier discussion of the fresh start issue at paragraphs 169 to 179.
196First, for the reasons cited above, I have not found that Hue Lam’s statement to Cst. Tang was either involuntary or Charter non-compliant. Hence, these are not circumstances such as in Plaha, Wittwer, or M.D. where the first statement was found to be involuntary or Charter non-compliant, and consequently, a determination had to be made if the tainting features continued into any subsequent statement thereby also rendering it involuntary.
197Second, unlike Plaha, Wittwer, or M.D., this was not a situation where the second interviewing officer admitted or knew that the earlier statement was involuntarily made or non-compliant with a statute or the Charter. For the same reasons discussed in relation to the fresh start issue, given the circumstances in which Hue Lam made her statements and gestures to Cst. Tang, i.e.. following a 911 call and a general inquiry before anyone viewed the Lam sisters as suspects requiring a caution, it would not have been evident to Det. Séguin that her statements and gestures to Cst. Tang were involuntary.
198Third, unlike in Plaha, once the admission was made and Cst. Tang had grounds to believe the Lam sisters were suspects for a murder/homicide, none of the officers involved in the matter attempted to elicit further information from the Lam sisters until they had an opportunity to meaningfully speak with counsel in the presence of an interpreter.
199Fourth, while Det. Séguin was aware of the earlier admission to Cst. Tang, he did not rely on it to elicit further admissions from Hue Lam as was the case in M.D. When he asked Hue Lam what happened with her mother, she indicated to him that she had already told the police what happened. She then asked if she needed to do it again. Det. Séguin told her that she did not have to speak to him but that he wanted to know what happened because he was the lead investigator. Hue Lam then chose to provide him further particulars. In these circumstances, I do not find that Hue Lam’s statement and gestures to Cst. Tang was a substantial factor that contributed to her making the second statement: S.G.T. at para 55.
200Fifth, I disagree with counsel’s suggestion that Det. Séguin gave Hue Lam legal advice, which adversely impacted her exercise of free will. In this regard, counsel relies on the decision of R. v. Krzyzewski, 2020 ONSC 6705, where London-Weinstein J. found the interviewing officer made several comments to the accused during an interview to suggest that he would not get a fair trial if he did not speak to the police which had the effect of “weaponizing his right to silence”: at para. 3. Justice London-Weinstein stated at paras. 37-38:
37Det. O’Brien further advised the accused that his integrity was at its highest while being interviewed by police. In my opinion, the combined impact of being told that he may never get a chance to speak in court, with no explanation as to how that might happen; that the police are the information gatherers who provide information to the judge who will decide what happens and that his integrity was at his zenith in the interview, left the accused with the impression that if he did not speak to police he would not receive a fair trial.
38These types of comments pose a risk that a subject could be induced to speak out of fear that his failure to provide information will be adverse to his interests at trial. In essence, Det. O’Brien was telling Mr. Krzyzewski that asserting his right to silence may mean he never get a chance to tell his side of the story. The detective effectively weaponized the right to silence against the accused. Mr. Krzyzewski was led to believe that his silence would be insufficient and legally ill advised. In my view, these comments amount to an inducement to Mr. Krzyzewski to give the impugned statement.
201In Krzyzewski, the interviewing officer also relied considerably on the earlier confession made by the accused in eliciting further information. The interviewing officer made remarks to the accused that the police knew he had caused the man’s death and that they knew this because he had told other officers so the night before.
202In this case, Det. Séguin did not make any inducements that Hue Lam would never be able to tell her side of the story and did not offer legal advice. Rather, Det. Séguin told Hue Lam that he disagreed with her characterization of the consequences of whether she should or should not speak to the police and did not proffer any further opinion on the subject. He then offered to speak about something else, at which time Hue Lam stated she wished to report what happened so her conscience did not feel uneasy.
203Similarly, this was not a situation as in R. v. Van Wyk, 104 O.T.C. 161 (S.C.), as cited in Krzyzewski, at paras. 68, 70, where the accused was led to respond to police inquiries in hope of improving his chances of securing bail.
204Contrary to defence’s suggestion, upon review of the first 26 pages of the interview, I do not find that Hue Lam was confused about her choice to speak. As already addressed in the prior section, Hue Lam told Det. Séguin she understood she had the right to stay silent. For reasons already provided, while she may have been weighing the consequences to speak or not speak, I do not find she was confused about her right to silence.
205Sixth, unlike the cases cited by counsel, I find that upon consideration of the whole of the evidence, commencing with the 911 call, Hue and Chau Lam desired to turn themselves in and to speak with the police about what happened: see Plaha, at para. 62, citing Harper. Hue Lam’s desire to speak with Det. Séguin did not stem from any police pressure, but rather from a genuine desire, as she herself proclaimed to Det. Séguin, to unburden her conscience.
206Seventh, I find Det. Séguin’s caution to Hue Lam to be sufficient to sever any connection to a prior breach (had one been found). Moreover, the interpreter went further and informed Hue Lam that she was not to be influenced by either anything an earlier officer had said or anything she herself had said. The caution was as follows:
DET. SÉGUIN: So, if any such person, um –I don’t want –if any such person told –spoke to her, okay, about the case. I don’t want that, from that officer, or that –to influence her in making me a state –giving me a statement. So, if she has – like, she has spoken to police officers, special constables. If any of those people told her anything, I don’t want that to influence her in giving me a statement, because she doesn’t have to.
INTERPRETER: And I, all those people you met within the police force, and those special constables, and I want that, everything they said, that you spoke with them, and what they told you, will not influence your testimony. They say… they don’t want all of these things to influence your testimony with me right now.
HUE LAM: [Indiscernible]
INTERPRETER: Understand.
207Finally, the confessions rule requires proof beyond a reasonable doubt of the voluntariness of any statement given by an accused person to a person in authority before it may be admitted into evidence: Singh (SCC), at para. 29. Applying the legal framework set out in Oickle and Tessier set out above, there is no evidence that Det. Séguin or the police interacting with Hue Lam earlier engaged in threats, oppression, inducements, trickery or in any conduct that affected Hue Lam’s ability to exercise her free will. At all times, Hue Lam had an operating mind. While Hue Lam did complain of the cold, she was provided in cells with a black suit jumper and a sweater to keep her warm. She was also wearing a coat during her interview and Det. Séguin interrupted the interview to retrieve a heater so she could be comfortable. I do not find the circumstances were oppressive. For all these reasons, I find Hue Lam’s statement to Det. Séguin was voluntary.
Issue 8: Was Hue Lam’s right to privacy under s. 8 of the Charter breached while she was in the cell block, and if so, does this breach render her subsequent interview with Det. Séguin inadmissible under s. 24(2) of the Charter?
a. s. 8 analysis
208Hue Lam argues that her right to privacy was violated when the security camera in cell block captured her in a partial state of undress and this breach constitutes a warrantless search in violation of s. 8 of the Charter. Hue Lam argues the breach was sufficiently egregious to warrant the exclusion of her subsequent interview with Det. Séguin pursuant to s. 24(2) of the Charter.
209At approximately 2:27 am, Cst. Philippe, a female officer, came to assist Sgt. Trudeau in searching and processing Hue Lam. Cst. Philippe assisted Hue Lam with taking off her clothes which were subsequently seized. Hue Lam was then given a jumpsuit to wear by the police.
210Hue Lam was lodged in cell 44 at 3:00 am. The cell contained a toilet, sink, and bed. There was a camera outside of the cell looking into the cell area and which is monitored by police officers at two stations within cell block. For reasons related to prisoner safety, the camera records all activities inside the cell except any activity in front of the toilet which is pixelated and cannot be viewed.
211At approximately 3:02 am, Cst. Philippe assisted Hue Lam with removing a t-shirt that she had over top of her jumpsuit and putting it on underneath her jumpsuit. Hue Lam was seated on the bed. To change the t-shirt, Hue Lam’s jumpsuit had to be opened and for approximately 10 seconds, Hue Lam’s breasts were exposed and recorded on the security camera.
212Later, Hue Lam complained of the cold. At 5:48 am, the police handed her a red sweater to wear, but did not enter the cell to assist her in wearing it. Hue Lam is then seen changing into the sweater on the security camera and did so on the side of the cell that is not pixelated. Hue Lam was wearing a black paper jumpsuit at the time. This is provided to a detainee for a variety of reasons, including having an additional layer to keep them warm. Hue Lam took off her black jumpsuit and was then in a t-shirt and panties. She then removed her t-shirt during which time her bare breasts were exposed on the security camera for approximately 30 seconds before she put on her jumpsuit.
213Counsel argues that during her time in the cell block, Hue Lam:
a. was not informed that there was a video recording her during her time in cell 44;
b. was not given the option of changing in a private room where no camera would be recording her nor was she given access to any such area;
c. was not given the option of using a privacy screen behind which she could change her clothing like the privacy screen used in the Forensic Identification Section;
d. was not provided translation of any specific signage within the cell block area regarding the use of video surveillance of the area; and
e. had no option to refuse to go into the cell where she was held in custody.
214The Crown argues that the police conduct in this case was reasonable and did not result in a s. 8 Charter violation. Sgt. Edens advised Hue Lam when she was paraded through the cell block that everything was audio and video recorded. There was signage throughout the cell block alerting her that cell block activity was recorded. Furthermore, the OPS requires police surveillance to ensure both police and public safety. Here, Hue Lam asked the police for assistance in putting on her clothing and the attending officer treated her respectfully. Any intrusion into her personal privacy was minimal and more importantly, did not involve surveillance of her using the toilet which has been disapproved of in the jurisprudence.
215The right to be free from unreasonable search and seizure includes protection of personal privacy. When carrying out their duties as agents of the state, the police are required to respect the dignity and bodily integrity of all who are detained and/or arrested: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 20-21; R. v. Mok, 2014 ONSC 64, 299 C.R.R. (2d) 352, at paras. 48-52, aff’d 2015 ONCA 608, 82 M.V.R. (6th) 1. While detainees have a lowered expectation of privacy while in police custody, it remains reasonable for detainees to expect a basic level of privacy: Mok, at para. 63.
216Where defence has established that the police engaged in a warrantless search by breaching the accused’s privacy, the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable.
217In R. v. Mok, the respondent was arrested for impaired driving and detained in a cell until she became less intoxicated. The respondent used a toilet in the cell unaware that a video surveillance camera was recording her even though she had been advised when being paraded into the detachment that everything was audio and video recorded: at para. 31. She alleged that her right to privacy was violated. The trial judge agreed and ordered a stay of proceedings.
218On appeal, Boswell J. of the Ontario Superior Court of Justice found that the trial judge was correct in finding that the respondent’s s. 8 Charter right was breached while in detention. The respondent’s actions in the cell reflected a lack of awareness of a video camera. Therefore, it was established that she had a subjective expectation of privacy which was ultimately breached: at paras. 57-58. The court found that protection of safety and preservation of evidence did not necessitate the surveillance and recording of detainees using the toilet and the respondent’s s. 8 Charter right had been violated in the circumstances.
219Justice Boswell noted, however, that not all surveillance of a detainee will amount to a Charter breach but police ought not to monitor and record the use of the toilet by detainees. Specifically, Justice Boswell noted at para. 81:
I agree with the trial judge's conclusion that the monitoring and videotaping of detainees using the cell toilet by police officers of either gender is a "highly intrusive invasion of privacy". On the other hand, the state's legitimate interests in monitoring cells for safety and preservation of evidence are not so compelling that they ought not to give way to at least a modesty screen that partially blocks the camera's view of the toilet. The detainee's expectation of privacy in the cell area is not so significant as to warrant a finding that any surveillance is inappropriate. But it is sufficient to require that the police do not monitor and record the use of the toilet by detainees.
220While Boswell J. found a Charter breach, His Honour disagreed with the trial judge’s findings that this was one of the “clearest of cases” that necessitated a stay of proceedings: at para. 92. Justice Boswell found that staying the charges was a “cost that is too high a price to pay for the s. 8 breach in this instance, where the police have not yet had an opportunity to respond to the finding of breach and make adjustments to the manner in which they monitor their cells”: at para. 104.
221Upon examination of the evidence, including the two video recordings of Hue Lam changing in the cell block, I find a s. 8 Charter breach is not made out.
222First, unlike in the cases of R. v. Mok, R. v. Walker, R. v. Griffin, R. v. Miller, and R. v. Wilczewski, relied on by the defence, this is not a case where there was surveillance of Hue Lam while on the toilet: 2014 ONSC 64; 2020 ONSC 2139; 2015 ONSC 927; 2023 OSNC 2868; and 2023 ONSC 3820. In all those cases, the court dealt with recordings of a detainee while on the toilet and which, as stated in Mok, is unnecessary for the protection of detainee safety and the preservation of evidence. For example, in Walker, the respondent suffered a significant measure of embarrassment, humiliation, and shame in being recorded conducting a bowel movement and wiping himself. Similarly, in Griffin, the video surveillance captured the appellant wiping down the toilet seat, pulling down her underwear, exposing her right buttock and thigh while she was urinating, and then wiping herself with toilet paper.
223Second, while Hue Lam’s upper body was exposed, I find a limited portion of her upper body can be seen as it is somewhat obstructed by the prison bars and her own arms. Furthermore, the exposure and intrusion into her privacy was for a minimal period.
224Third, for the first exposure of approximately 10 seconds, Hue Lam had requested assistance with changing her clothing. It is apparent from the video clip that Cst. Philippe treated her in a very gentle manner and with respect and dignity. While I agree that a privacy screen could have been brought in, there was no evidence that the police acted in bad faith. On the contrary, the admissions filed from the cell block sergeant indicate that the police made efforts to arrange to have Cst. Philippe attend so that a female officer could search and assist the Lam sisters because no female constables were in the unit at the time.
225Fourth, there is also considerable evidence that Hue Lam would have been reasonably aware of the cameras, which were visible, and knew that activity in the cell block was being monitored. There are six different signs that persons brought in from the sally port will encounter, photos of which were filed as exhibits, to indicate various areas that are monitored and recorded. More specifically, there are several signs that indicate the cell block is monitored and recorded. In addition, Sgt. Edens informed Hue Lam with the interpreter Ms. Tran on the phone that everything would be audio and video recorded.
226It is not disputed that there is a camera looking inside the cell on the wall across from each person’s cell and such cameras are not concealed. According to Sgt. Lebeau’s testimony, there are cameras all over the cell block to ensure detainee safety. Cell block attendants use the cameras to monitor the persons in their custody in between regular in-person checks which occur about every 15 minutes. It is admitted that police have a duty of care to persons in their custody and need to maintain constant monitoring to ensure detainees do not go into medical distress or attempt to harm themselves. The police must attempt to balance the privacy and dignity of the detainees with the need to keep the detainees safe. This has resulted in pixelation being added to the live and recorded footage by the OPS Security Operations Section in charge of the monitoring system. The pixelation is always present to cover a person’s genitalia when using the toilet located in each cell. Furthermore, while there would have been live footage of Hue Lam undressing on those two occasions, it would have only been viewed by officers in two locations in the cell block who are responsible for monitoring detainee activity in cells.
227Finally, in the video clips provided, there is no evidence that Hue Lam was distressed by the lack of privacy. Hue Lam does not appear to have sought privacy by turning her back away from the cell entrance or door. There is nothing to indicate that she was any way embarrassed by her exposure before Cst. Philippe. Furthermore, after she changed, Hue Lam needed to go to the toilet and Cst. Philippe stepped out of the cell right away to allow her privacy to do so.
228For all these reasons, I do not find there was a s. 8 Charter breach. However, even if I am incorrect and there is a Charter breach that resulted in these circumstances, I do not agree with counsel that the circumstances of the breach would warrant the suggested remedy of the exclusion of Hue Lam’s statement to Det. Séguin pursuant to s. 24(2) of the Charter.
b. s. 24(2) analysis
229I apply the same legal framework on s. 24(2) set out above.
230I find the breach was not so egregious as to warrant exclusion of Hue Lam’s statement to Det. Séguin. The police have instituted policies and practices to balance the privacy interests of detainees with the need to monitor them for safety purposes in a manner that is consistent with the requirements of the current case law. Here, there was signage available indicating the cell block was monitored and recorded, the police informed the Lam sisters that activity was recorded in the cell block, the cameras were in full view, and the surveillance images were pixelated in the area where detainees used the toilet in the cell. Hue Lam was well treated by the police, and especially gently by Cst. Philippe. The police have an obligation to monitor the safety of inmates, and pixelating activity in the entire cell would defeat the purpose of the surveillance.
231While Hue Lam’s upper body was exposed on the surveillance video, the bodily exposure was limited to the upper body, and was partially obstructed, for minimal amounts of time of 10 and 30 seconds. Moreover, at the time, the video would have been viewed by a limited number of people for the purposes of ensuring prisoner safety. There was no evidence that Hue Lam was distressed by this exposure. While there was a privacy breach, I find the impact of the breach on the Charter-protected right was not significant.
232I agree that a causal connection is not required between the alleged Charter breach resulting from Hue Lam’s exposure on the surveillance camera in the cell block and her subsequent statement to Det. Séguin. A temporal connection can suffice: Beaver, at paras. 95-96, citing Mack, at para. 38. However, in Singh, the court states at para. 50 that where there is a temporal connection, but no causal connection between the breach and subsequent statement whatsoever, the reality suggests that the Charter violation had a truly minimal impact upon the detainee, in that the Charter violation did not causally result in the police gathering any incriminating evidence against the detainee. In such cases, there is a negligible impact on the Charter-protected interests Singh, at paras. 50, 58. Such is the case here. While there is a temporal connection between the video recording and the subsequent statement to Det. Séguin, there is no causal connection. The breach, if had one been found, neither impacted Hue Lam’s choice to speak to the police nor cause the police to gather incriminating evidence against her.
233Furthermore, the third prong of the Grant test favours inclusion of the impugned evidence if it is a critical piece of evidence. I find that it is. In her statement to Det. Séguin, Hue Lam describes the planning and way the killing occurred. The public has a heightened interest in seeing that crimes of this nature are tried on their merits.
234Balancing the factors at play, even if a violation of Hue Lam’s right to privacy was established pursuant to s. 8 of the Charter, I find the admission of the statement to Det. Séguin would not bring the administration of justice into disrepute and the statement is thereby admissible pursuant to s. 24(2).
235The Crown’s voluntariness applications and requests for adoption of statements to be put to the jury are granted. The Defence Charter applications are dismissed. Should there be any discrepancy between the oral and written decision, the written decision will prevail.
Somji J.
Released: June 5, 2025
APPENDIX 1: Timeline of events the morning of October 31, 2022
AM
Event
00:20
Chau Lam calls 911 and speaks to a paramedic dispatcher. She states to the paramedic that she and her sister killed their mother.
00:29
Cst. De Los Santos and Cst. Brouillette arrive at the Lam residence at which time the 911 dispatch call ends.
00:37
Cst. Tang arrives at the Lam residence, is directed to stay in the kitchen with the Lam sisters and commences speaking to the Lam sisters in English and Cantonese. During this time, Cst. Tang asks what happened and Hue Lam admits by way of gesture that she and her sister killed their mother.
00:56
Cst. Tang forms grounds for arrest and issues a soft caution in Cantonese.
1:09
Cst. Tang speaks to Immigration Women Services Ottawa After Hours Emergency Interpretation Services (IWSO). Tracy Tran is made available as a Vietnamese speaking interpreter for the Lam sisters and they each speak to her.
1:15
Cst Tang tells Hue Lam that she is arrested for murder and reads from his duty notebook her right to counsel (RTC) translated by Ms. Tran over the phone.
1:21
Cst. Ross provides Hue Lam reason for arrest, caution, and RTC which is translated by Ms. Tran over the phone. She is subsequently transported to the detachment.
1:40 to 1:44
Cst. Downer provides Chau Lam reason for arrest, caution, and RTC which is translated by Ms. Tran over the phone. She is subsequently transported to detachment.
2:16
Cst. Ross escorts Hue Lam into the cells and before the cell block Sgt. Edens. Cst. Ross informs Sgt. Edens that Hue Lam has been given her rights. Sgt. Edens informs Hue Lam that everything will be audio and video recorded and she nods she understands. Hue Lam is taken to Forensic Identification Section for processing and is provided a secondary caution. Female officer Cst. Philippe now joins her.
2:27
Cst. Philippe assists Hue Lam with the removal of her clothing. A privacy curtain is used at this time. Hue Lam is given a jumpsuit to wear.
3:02 to 3:04
Hue Lam is placed in cell 44. Cst. Philippe assists her in removing her t-shirt so she can put on the jumpsuit. The security camera is pixelated for the toilet area, but not the other areas. For approximately 10 seconds, Hue Lam’s bare breasts are exposed.
3:00
Dets. McLinton and Séguin speak briefly with Cst. Tang and ask him to attend Homicide Office when finished with liaising with Languages of Life.
3:15 to 3:18
Cst. Downer escorts Chau Lam into the cells. She is paraded and search by female officer. Cst Downer confirms to cell block Sgt. he has given rights. Chau Lam is then taken to Forensic Identification Service and given a secondary caution.
3:12 to 3:20
Police Team Meeting #1: Present are Detectives Séguin, McLinton, and Brennan.
3:30
Hue Lam speaks with duty counsel with an interpreter present on the phone.
3:40
Interpreter Tran explains to Chau Lam her RTC including right to choose own counsel and for an interpreter to be present. Chau Lam requests Legal Aid Duty Counsel be contacted and for a Vietnamese interpreter to be present.
3:44
Cst. Downer contacts Legal Aid Duty Counsel and leaves a voicemail. He indicates Chau Lam speaks Vietnamese.
4:00
Cst. Downer places Chau Lam in a cell and notes she has not spoken with counsel.
4:08 to 4:32
Police Team Meeting #2: Dets. Séguin, McLinton, and Brennan are present. Cst. Tang informs them of the statements and gestures made by Hue Lam in the kitchen.
5:48
Hue Lam is provided a sweater to wear. She removes her t-shirt. For 30 seconds the security camera exposes her nude upper body.
6:51
Det. Séguin calls IWSO to obtain an interpreter for interviews.
7:10 to 7:20
Det. McLinton participates in a meeting with various officers and is informed that deceased at the residence and sustained a blunt force trauma.
7:10 to 7:26
Det. Séguin tasks Sgt. McLinton to locate an interpreter for Chau Lam.
7:23
Det. Séguin learns that an ISWO interpreter will attend station at 8:00 am to attend for police interview with Hue Lam.
7:26
Det. McClinton calls Languages of Life and leaves a message that she needs translation service for persons in custody for murder.
7:44
Det. Séguin requests from Sgt. Lebeau the names of the lawyers Hue and Chau Lam spoke with. He is informed that Hue Lam spoke to counsel Daniel Paul and that Chau Lam is awaiting a call back from duty counsel.
7:55
Det. Séguin calls duty counsel line and requests an immediate call for a lawyer to speak with Chau Lam. Det. Séguin tasks Det. McLinton to liaise with Sgt. Lebeau and Languages of Life when duty counsel calls back. Det. McLinton follows up with Sgt. Lebeau five minutes later and informs him to obtain the name and contact number for duty counsel that calls cell block.
8:20
Duty counsel calls back for Chau Lam and indicates that he will arrange for a Vietnamese interpreter. Det. Brennan notifies Det. McLinton accordingly.
8:24 to 8:42
Chau Lam speaks with duty counsel Peter Gakiri without an interpreter.
8:31to 10:05
Det. Séguin conducts a videotaped interview with Hue Lam and a Vietnamese interpreter who indicates she knew Hue Lam from four previous hospital visits.
8:47
Det. McLinton speaks to duty counsel Peter Gakiri who informs her that there are no Vietnamese interpreters available for potentially the next two hours.
8:49
Det. McLinton calls Languages of Life again and the mailbox is full.
8:55 to 9:22
Det. McClinton calls IWSO in search of an interpreter and is told to call back at 9 am She calls again at 9:01, 9:04, 9:07, and 9:08 am. At 9:22, someone at Language of Life provides her with the name of a Vietnamese interpreter Duong Nguyen.
9:26
Det. McLinton relays the information for the Language of Life interpreter to Sgt. Lebeau and asks him to facilitate a call between duty counsel, the interpreter and Chau Lam and to advise when it is done.
9:42
Sgt. Lebeau speaks to D/C Peter Gakiri and provides him interpreter contact.
9:49 to 10:07
D/C Peter Gakiri speaks to Chau Lam with the Vietnamese interpreter. Sgt. Lebeau facilitated the call.
10:08
Det. Séguin escorts Hue Lam back to the cells following her interview with Det. Séguin.
10:33
Det. Brennan commences videotaped interview with Det. Brennan in the presence of interpreter Hanh Hoang.
CITATION: R. v. Lam, 2025 ONSC 3316
COURT FILE NO.: 22-1140359
DATE: 2025/06/05
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Chau Lam
-and-
Hue Lam
Accused
Admissibility of statements made by the accused
VOLUNTARINESS AND SS. 8, 10, AND 24(2) CHARTER
Somji J.
Released: June 5, 2025