Date:
2017-02-02
Citation:
R. v Xiu Jin Teng, 2017 ONSC 789 (CanLII), <http://canlii.ca/t/gxbn4>, retrieved on 2019-12-13
CITATION: R. v. Xiu Jin Teng, 2017 ONSC 789
DATE: 20170202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
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HER MAJESTY THE QUEEN
Applicant
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XIU JIN TENG
Respondent
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Joshua Levy and Robert Fried, for the Applicant
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The Respondent is self-represented
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HEARD: November 4, 7, 8, 9 and 10, 2016
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Ruling re Statements to Detective Sergeant Borg
MacDonnell, J.
[1] On the afternoon of February 29, 2012, the body of the defendant’s husband was found hidden in a storage closet in the apartment that he shared with the defendant and their young daughter. On that same day, the defendant was arrested, charged with offering an indignity to a dead human body and held for a bail hearing. The following morning, prior to being taken to court, the defendant was interviewed by Detective Sergeant Borg and Detective North of the Homicide Squad of the Toronto Police Service. The interview was audio and video recorded.
[2] At the outset of the trial the Crown sought a ruling with respect to the voluntariness of the statements that the defendant made to Borg and North in the course of the interview. The defendant is self-represented. She refused to participate in the voir dire that was conducted to decide the voluntariness issue because, she said, to require her to proceed without counsel was unfair and unlawful. Prior to trial, the case management judge had appointed Richard Litkowski to act as amicus curiae. In order to ensure that all of the circumstances in relation to voluntariness were brought out I authorized Mr. Litkowski to cross-examine the witnesses called by the Crown and to make submissions in relation to whether the Crown had met its burden of proof.
[3] The defendant did not file an application to exclude her statements on the basis of violations of the Charter. However, because counsel who had represented her in the past had taken the position that her statements were obtained in a manner that infringed the Charter, I authorized Mr. Litkowski to cross-examine the witnesses on the voluntariness voir dire with a view to bringing to light anything that might support that position and to make any submissions he deemed to be justified in that respect.
[4] On November 22, 2016, I ruled that the Crown had proved beyond a reasonable doubt that the statements that the defendant made to Detective Sergeant Borg and Detective North were voluntary in law. However, I further held that I was satisfied on a balance of probabilities that the defendant’s rights under s. 10(b) of the Charter were infringed, in the course of the interview, when she was not re-advised of her right to counsel. Accordingly, I ruled, anything that the defendant said after the breach was subject to exclusion under s. 24(2).[1]
[5] At the time I made those rulings I stated that I would provide reasons in writing. These are those reasons.
A. The Events Leading up to the Interview
[6] At approximately 12:58 p.m. on February 29, 2012 the defendant made a 911 call. It is a reasonable inference that at the time she was making that call her landlord, Kenneth Wang, was also making a 911 call and that both she and Mr. Wang were inside her basement apartment. Both the defendant and Mr. Wang made reference to the presence of the dead body of the defendant’s husband. As a result of one or both of those calls, Officers Kumar and Shearer attended at the apartment.
[7] Constable Kumar arrived first, at about 1:00 p.m. Upon entering the premises, he heard the voices of a male and female in the basement. When he proceeded downstairs he observed the defendant standing in the kitchen speaking on a telephone. He heard her say “the police are here” and she hung up. Mr. Wang was also standing in the kitchen. Kumar testified that both persons tried to talk to him at the same time, and that “there was a little bit of a language barrier to understand what was going on.” He separated the two individuals and advised the defendant to stay in the bedroom area. He then spoke to Mr. Wang, who said that the defendant was his tenant and that she was packing all her bags and planning to move out.
[8] At that point, Kumar decided that this was merely a landlord and tenant dispute and he voiced that opinion over the police radio. When Mr. Wang heard this, he interjected that the defendant was hiding her husband’s body and he pointed to a storage room on the opposite side of the apartment. The door to the room was open and the lights were on and Kumar observed what looked like a body lying on the floor, covered from head to toe with some kind of sheet. She was a former officer and wanted to know what happens to the family restaurant company if he is dead. She had made large donations to the Liberal party in Ontario and in Ottawa at the PM's office. She left money at the Mayor's office also, hoping to see the company registered to her. There were no assets in the company; just the name. The name was nuanced blocked as it was already in use and following the victim's death, the company became dormant as he was the sole director. Her cousin, however, told random passersby in public, at McDonalds also, that he had a contract on it.
[9] Kumar alerted dispatch that there was a dead body in the apartment. He returned to the kitchen and spoke again to Mr. Wang. Wang told him that when he discovered the body it was covered with boxes and other items. Kumar told Wang to go upstairs and to wait for the investigators to arrive. He called for the defendant to come out of the bedroom and he asked her for identification. She provided an Ontario Health Card. She told Kumar that her two-year-old daughter was at daycare. At that point, Kumar testified, “I asked her the general question, ‘what happened’?” He testified that “she advised that her husband had suffered a heart attack last Friday [five days earlier] and died as a result. She advised that at that time she did not know what to do and that’s why she never told anybody that her husband had passed away”.
[10] Constable Shearer arrived shortly after Kumar. He observed the defendant and Mr. Wang in the kitchen area talking in a calm tone. When Shearer looked across the apartment, he could see, through an open door, the shape of a human body on the floor of a storage closet. The body was covered with a blanket. Shearer asked Kumar what was going on. His recollection was that Kumar had not learned anything more than what had been broadcast over the radio.
[11] Shearer testified that he did not yet think that a crime had been committed, although he did think that the situation was very strange. Accordingly, he asked the defendant what had happened. He did not caution her before asking the question because “she was simply a victim in my mind, and I just tried to get an idea of what had happened… I tried to get the who, what, where of the whole situation, and she said that that was her husband, and that he had died of a heart attack last Friday. I asked how she knew he had died of a heart attack and she said that he had had many heart attacks before. I asked her where he died, and she said she had dragged him from the bedroom to the closet.”
[12] For oral reasons delivered on November 16, 2016, supplemented by written reasons on January 26, 2017 (R. v. Teng, 2017 ONSC 567 (CanLII)), I ruled that the defendant’s statements to Kumar and Shearer were made voluntarily and that they were not obtained in a manner that infringed the defendant’s rights under the Charter.
[13] After Shearer’s conversation with the defendant, he told Kumar to have her sit at the kitchen table. He said that he did this because he was concerned about her fainting. Further, he assumed that she would be upset that her husband was dead and he wanted to keep her away from his body. He said that “as we would anytime there was a sudden death, I was just protecting the scene.” After this, he had no further dealings with the defendant.
[14] Sergeant Ferris arrived in the apartment at 1:26 p.m. When he entered, he saw the defendant seated at the kitchen table, weeping, with her head down onto her arms. Two EMS personnel were also on scene. No one was speaking. Ferris immediately began to put in place the police protocol for a potential crime scene. He did this out of an abundance of caution, as “we treat almost every scene that we attend as a potential crime scene”. He made clear that he had no particular crime in mind.
[15] Sergeant Ferris had the officers on scene walk him through the apartment. The door to a storage room was ajar and he could see a body wrapped in bed sheets and plastic. Sergeant. Ferris did not yet think that a crime had been committed. It was odd, he said, “but we can only deal with the facts, and all we had was a deceased male, a distraught wife, and I did not know if this was a natural thing or if it was potentially going to be a crime scene. It had the potential to become suspicious but I did not have enough information.”
[16] The defendant was distraught and crying, and Sergeant Ferris did not want to expose her to some of the things that the police needed to do within the apartment. For example, they were going to have to unwrap her husband’s body so the paramedics could confirm death. Accordingly, at 1:37 p.m. Ferris directed Constable Kumar to have the defendant wait in Kumar’s car. Ferris had had no conversation with the defendant at all.
[17] Constable Kumar brought the defendant outside and had her sit in the rear seat of his police car. She was not handcuffed, and he had no concerns about his safety. As he put it, she seemed ‘like a normal person’. She was put in the rear of the car because that is where non-police personnel always sit.
[18] At 2:15 p.m., after speaking to the detectives who had arrived on scene, Ferris directed Kumar to take the defendant to the 42 Division station and to put her in what is known as the ‘soft interview room.’ He did this because he knew that the detectives would want to speak to her and it would be more comfortable to do that at the station. The soft interview room is used for victims and witnesses, not for persons who have been detained or arrested. It is furnished comfortably with a sofa, an arm chair and a carpet. Kumar arrived at 42 Division at 2:31 p.m. and he brought the defendant to that room. He remained with her pending further direction.
[19] Detective Sergeant Borg’s involvement in the case began with a telephone call from Detective Vruna at 2:17 p.m. Vruna summarized what the officers on scene had observed inside the defendant’s apartment. Borg then contacted Detective Ferguson, who was at the apartment, and after receiving further information he directed her to have the defendant arrested for the offence of offering an indignity to a dead human body.
[20] Detective Ashley was on duty at 42 Division that afternoon. At 3:06 p.m. he received a call from Detective Ferguson directing him to place the defendant under arrest for offering an indignity to a dead human body. At 3:17 p.m. he proceeded to the soft interview with a female officer, Detective Selby, and a Mandarin speaking officer, Constable Chen. Ashley had heard from Ferguson that the defendant spoke both English and Mandarin, but he had Chen come with him because he had never spoken to the defendant himself and he was unsure of the extent of her facility with English. When Ashley and the other two entered the room, Constable Kumar was sitting with the defendant. Ashley testified that the defendant appeared to be calm and alert. Ashley introduced himself and asked her to do the same, and she produced an Ontario Health Card. They then had the following conversation, in English.
Q. Do you have any relatives (here?)
A. No
Q. Is there anyone to take care of your son for a while?
A. She is a girl, I can go get her.
Q. No, not right now. Any friends?
A. No, none in Canada.
[21] Chen was not involved in the conversation to this point. Ashley said that he and the defendant did not have any difficulty understanding each other. At 3:20 p.m., he told the defendant that he was arresting her for offering an indignity to a dead human body. She responded:
A. What?
Q. Your husband is dead.
A. Yes, I covered him up. What is indignity?
Q. You can’t leave him there. You should have called the police or an ambulance.
Q. Oh, okay.
[22] Again, Ashley testified, the defendant did not appear to have any trouble understanding him and she was responding appropriately to what he was saying. He felt that her English was good but that she needed help with the odd term, such as the word ‘indignity’. He asked Chen to repeat in Mandarin everything that had occurred up to this point. When Chen finished, the defendant said, in English, “I understand”
[23] Ashley then read the defendant the standard right to counsel instruction. He asked her, in English, “Do you understand why you are under arrest?” and she responded “Yes”. He asked “Do you want to call a lawyer now?” and she replied “Yes, I think I should”. At this point, Ashley read both the primary and secondary cautions to the defendant. He then directed Chen to translate what he had said into Mandarin. When Chen finished, the defendant said, in English, “Yes, I understand”.
[24] Ashley told the defendant that they were going to go downstairs to the booking hall and that she could call a lawyer after that. He asked if this was alright and she responded ‘yes’. Ashley decided to repeat the primary and secondary cautions in layman’s terms, to be sure that the defendant understood. He told her, in English, that he wanted her to understand that anything that she might say could be used in court and that she did not have to say anything unless she wanted to. He then asked her, again, “Do you understand?”, and she replied “Yes, sir”. He asked “Do you have a lawyer?” and she said “No”. He said “I will call the free Legal Aid lawyer, okay?” and she replied “Yes”.
[25] There was no further conversation between Ashley and the defendant at this point. Apart from translating what Ashley had said about the right to counsel and the cautions, Chen had had no interaction with the defendant in the soft interview room. Neither had Detective Selby or Constable Kumar.
[26] The soft interview room is equipped for audio and video recording, but Ashley did not make use of that equipment.
[27] At 3:30 p.m., Ashley, Selby and Chen escorted the defendant downstairs to the booking hall. At 3:37 p.m. the booking officer, Sergeant Myers, arrived, the audio/video recording equipment was turned on, and the booking process began. It concluded 17 minutes later, at 3:54 p.m. For about five minutes in the midst of it, the defendant was off-camera in an adjacent room while Sergeant Myers and Detective Selby (both female officers) conducted a Level 3 search in privacy. In my opinion, the audio/video recording makes it clear that the entire booking process was conducted in a calm and professional manner, that all of the officers who interacted with the defendant during the process treated her with politeness and respect, and that the defendant responded in a calm and cooperative manner .
[28] Before the booking process began, Constable Chen had explained to the defendant that if there was anything that was said to her in English that she did not understand she should say so and it would be translated. The defendant was born and raised in China and came to Canada with her husband in the latter part of 2010, about a year and a half before the incident giving rise to the charge of first degree murder. In the course of his cross-examination of the witnesses called by the Crown, Mr. Litkowski, as amicus, explored the witnesses’ perception of the defendant’s ability to speak and understand English.
[29] As indicated above, Detective Ashley testified that during his initial interaction with the defendant, in the soft interview room, they did not have any difficulty understanding each other, although the defendant might have needed help with some words. In my opinion, the exchanges that occurred in the booking hall between Ashley and the defendant and between Sergeant Myers and the defendant, all of which are captured on the video recording, confirm the accuracy of Ashley’s opinion. At the beginning of the booking process, Ashley explained that the proceedings were being recorded on video, introduced Sergeant Myers and explained her role, stated what the charge was and that the defendant had been informed of her right to counsel and cautioned and that she had requested to speak to a lawyer, indicated that a level 3 search was going to be conducted, and explained what a level 3 search involved. Throughout that process, as Ashley spoke to the defendant in English, the defendant appeared to be listening carefully, nodding her head and saying ‘ok’, and answering affirmatively whenever Ashley paused to ask if she understood – all of this before Chen translated what Ashley was saying.
[30] After Detective Ashley completed those preliminary explanation, Sergeant Myers asked the defendant a series of questions. She asked if the defendant understood that she was charged with indignity to a human body, and the defendant responded in English, without translation, “I understand it”. She had the defendant provide her first and last names. She asked the defendant where she lived and the defendant provided her address. She asked for and obtained the defendant’s telephone number. She asked if the defendant had “any medical illnesses that I need to be aware of”, “do you take any prescription drugs”, and “do you take any illegal drugs”. The defendant responded “no” to each of those questions. Just before the level 3 search, Myers asked “Is there anything you have on you that I need to be aware of” and the defendant answered “no”. To all of these questions, which were not translated into Mandarin, the defendant responded without hesitation and without any sign of confusion or uncertainty.
[31] There were only three questions for which the defendant looked to Constable Chen for assistance, namely whether she had ever been diagnosed with a mental illness, whether she had ingested alcohol in the preceding 24 hours, and whether she had ever contemplated suicide.
[32] At 3:54 p.m. the booking process concluded and the defendant was taken to an interview room in the Criminal Investigation Bureau. Unlike the soft interview room described earlier, this room was not designed for comfort. It was sparsely furnished with a table and a chair, and it was kept locked. At 3:58 p.m., either Detective Ashley or Detective Selby placed a call to duty counsel. At 4:06 p.m. duty counsel returned the call and spoke to Selby. Duty counsel suggested that a Mandarin-speaking lawyer be found. At 4:13 p.m. another lawyer, Patrick Sun, called. After confirming that Mr. Sun spoke Mandarin, Selby provided the telephone to the defendant and she had a private conversation with him.
[33] After speaking to Mr. Sun, the defendant remained in the interview room. At 4:52 p.m., she began knocking on the door. When Ashley opened the door, she asked if she could have a lawyer come to the station in person. She said that she had not been able to hear Mr. Sun because the line was bad. Ashley said “Ok, I will call him again”, and the defendant said “Yes, please”. Ashley had Selby contact Mr. Sun again and Sun called back almost immediately. After it was confirmed that the defendant could hear Mr. Sun properly, she was given privacy for her consultation with him. The call concluded at 5:10 p.m.
[34] After the defendant’s second consultation with Mr. Sun, neither Ashley nor Selby had any further dealings with her.
[35] Detective Sergeant Borg had directed that apart from the standard booking procedures, no one was to speak to the defendant before he got to the station. At 10: 45 p.m. Borg went to the room where the defendant was being held with the intention of bringing her to a video room for the purposes of an interview. Immediately before opening the door to meet the defendant for the first time, he activated a handheld audio recorder so that the entirety of his interaction with her would be recorded. When he opened the door he saw that the defendant was sitting on the chair with her head down on the table and that she appeared to be sleeping. Borg gently woke her up, introduced himself and North and asked her to come to speak with them. When she stood up, he took her by the arm, and they walked down the hall to the video room. She was somewhat unsteady on her feet. It appeared that she was extremely tired, that she was still waking up, and that she was not fully alert. She asked for water and North went to get some for her.
[36] When the officers and the defendant entered the video room, she was directed to sit down in a chair on the other side of the table from Detective Sergeant Borg. As she began to sit down, she missed the chair and she fell backwards to the floor. The officers got her into a seated position and gave her some water. Borg asked her a number of questions, trying to determine if she was sick. He asked her if she needed to see a doctor, and when she did not respond, he directed Detective North to have the officer in charge of the station, Staff Sergeant Paltrow, call for paramedics to attend. Borg told the defendant that they would not proceed with the interview until the paramedics had seen her.
[37] The paramedics arrived and, after examining the defendant, indicated that there was no serious medical concern. They asked the defendant if she wanted to go to the hospital and she said no. It was Borg’s opinion that the problem was that the defendant was exhausted and he decided not to make any further effort to interview her that night. He had Staff Sergeant Paltrow come in and Paltrow decided that the defendant would be lodged in a cell, Paltrow directed that the defendant be subject to heightened monitoring, which would involve more frequent cell checks.
[38] Constable Wang was the officer responsible for monitoring the cells overnight. His evidence was that he provided the defendant with a beef pattie or a sandwich and water, that he checked on her every half hour, and that he did not note anything out of the ordinary.
[39] The next morning, at about 9:30, Detective Sergeant Borg went to the cell area and spoke to the defendant. She had a sandwich with her and some juice. Borg told her that they were going to try to talk to her again. He suggested that she bring along her sandwich and juice but she said that she did not want them. She seemed much more alert than the night before, and she agreed that she was feeling better. They proceeded to the video room. Borg asked if it was okay that she speak to them in English, and she said “yeah, probably…I think so”. Borg explained that if there was anything that she did not understand she should tell him so that he could explain, and that if it was absolutely necessary they could arrange to have an interpreter brought in. She responded “Okay”. Borg told her that if she needed to use the washroom she could do so and that if she wanted something to eat or drink the officers would get it for her. The following exchange then occurred:
BORG: Okay. Don’t say anything just yet alright. Okay. And you – you said some things to the officers. You said some things to some of your neighbours and ah the people who live above you in your home. And as a result of that um you were arrested okay and you’re going to be charged with a criminal offence. It’s called Indignity to a Dead Body. Okay do you understand that?
TENG: Indignity yeah.
BORG: Do you understand what it is? What that means?
TENG: Yeah indignity to the dead body.
BORG: Right. Do – but I’m asking you in your own words can you explain to me what that means?
TENG: Not call 9-1-1 first – at the first time.
BORG: Essentially it’s – that’s part of it and you know obviously when a person dies um it – it’s – it’s not acceptable - criminally acceptable – it’s not acceptable in law to you know keep the body. Do something with the body. There are normal standard practices of what is supposed to occur when a person passes right? Okay. And the allegation – you know the – the charge against you relates to that. Okay. But I also wanna tell you that um myself and Rob, we’re from the Homicide Squad.
TENG: From Homicide---
BORG: The Homicide Squad.
TENG: Squad?
BORG: Yeah. We investigate murders okay and although we don’t know just exactly who is dead in your apartment or why that person died we are treating that death as suspicious. Okay and as a result of that it’s very common for police officers for that like work here in this – in this place they will call the Homicide Squad to help them in these kinds of investigations okay. So although you’re charged with an Indignity to a Dead Body right now um if the circumstances – if what we determine today through our investigation and I’ll talk to you about that um determines that that person was murdered you also may be charged with murder. Okay? Do you understand that?
TENG: But I – I – of course I---
BORG: You’re gonna have a chance to explain yourself but before you do I just wanna know that you understand that okay.
TENG: I understand your words.[2]
[40] Borg confirmed that the defendant had spoken to Patrick Sun the previous day, and he told her that she could speak to him again before continuing with the interview. He read the standard instruction with respect to the right to counsel and asked the defendant if she wanted to call a lawyer before proceeding. She said that she did not. Borg told her that if in the course of the interview she decided that she wanted to speak to a lawyer he would facilitate that. He then cautioned her:
BORG: Okay. So I also have to tell you that right now you’re being charged with a criminal offence Indignity to a dead body. Like I said depending on how the investigation progresses what we learn you also could be charged with murder. Okay? I’m gonna ask – we’re gonna interview you now about that and I wanna ask you do you wish to say anything in answer to that charge? You are not obliged to say anything Eliza. Okay. You don’t have to talk to us unless you want to. Okay? But whatever you say can be used ah against you as evidence. Do you understand that? Okay? And that’s why this and that over there all of everything we do in here is being audio and video taped okay? That’s to protect you. It also protects us and it also makes it very clear what’s going on in here. Okay. So that there’s no misunderstandings. Okay?
TENG: Yeah.[3]
[41] The interview then proceeded. It was conducted in a calm, polite, conversational manner. There were times when, because of a language issue, the defendant required clarification with respect to a question she was being asked, but those times were few. Detective Sergeant Borg’s questioning, while probing and persistent, was never aggressive. From time to time, the defendant appeared to be a little nauseous, and as a precaution the officers put a waste basket beside her, but she never did throw up. On a number of occasions Borg inquired if she was alright, and each time she said that she was.[4] At no time did she indicate any reluctance to continue with the interview. On one occasion, after Detective North had interrupted to speak to Borg, she asked “can I continue?”[5] On a later occasion, after inquiring as to whether the defendant was okay, the defendant again asked “can we continue?” At one point, Borg told her that she could tell him when she wanted to stop, but she did not indicate that she did want to stop.[6] Toward the end of the interview, after Borg told her that he was going to see about having her taken to a doctor, he gave her a choice as to whether she wanted to complete the interview first and she seemed to suggest that she did.[7]
B. Were the Defendant’s Statements to Detective Sergeant Borg Voluntary?
[42] The nature and incidence of the burden of persuasion in relation to voluntariness is well settled. In order for a statement made by a defendant to a person in authority to be admissible at the instance of the Crown, the Crown must prove beyond a reasonable doubt that the statement was voluntary. The assessment is contextual and case-specific. While all of the circumstances surrounding the making of the statement will be relevant, of prime concern will be whether the statement was induced by hope of advantage or fear of prejudice emanating from the police in the form of promises, threats or other mistreatment, whether the statement was obtained in oppressive circumstances, whether the maker of the statement had an operating mind, whether the police employed improper trickery, and whether the defendant was aware of his or her jeopardy. Those concerns are not separate tests but rather factors than may operate together to undermine confidence in the voluntariness of what was said to the police.
[43] The evidence called by the Crown on the voir dire provides a sufficient record of the defendant’s interaction with the police from the time that she first encountered Constable Kumar shortly after 1:00 p.m. on February 29, 2012 until the completion of the interview conducted by Detective Sergeant Borg and Detective North the following morning. The record shows that at all times the police dealt with the defendant in a calm, polite and respectful manner and that she responded in the same way.
[44] At the time when Sergeant Ferris directed Constable Kumar to take the defendant to 42 Division, he regarded her as a victim or a witness, not as a suspect. When her status changed, and she was told that she was under arrest for offering an indignity to a dead body, she was immediately advised of her right to counsel and she was cautioned. As soon as the booking procedure was completed, she was put in contact with duty counsel, and when she subsequently complained that she had not been able to hear duty counsel properly a second consultation was immediately arranged. Prior to beginning the interview the following morning, Detective Sergeant Borg confirmed that she had spoken to counsel, gave her the opportunity for a further consultation, and when she declined that opportunity told her that if she changed her mind in the course of the interview he would put her in touch with counsel. Borg also repeated the primary and secondary cautions, making it clear to the defendant that she did not have to speak to him and that, if she did, what she said could be evidence against her.
[45] Throughout, there was nothing in the manner in which the defendant was treated that could have given rise to either a hope of advantage if she were to speak to the police or a fear of prejudice if she did not. Nothing that was said could have been interpreted as a promise or threat, express or implied. She was not mistreated. There were no tricks. No one lied to her. Inducements, tricks and lies were unnecessary because the defendant expressed no reluctance to speak to the police, either before or after she had consulted with counsel.
[46] The physical condition of the defendant at the time of the interview is relevant to a consideration of whether the circumstances in which the interview occurred were oppressive. When Borg first attempted to interview the defendant, on the evening of February 29, she was in a state of physical exhaustion. Because of that, Borg abandoned any thought of proceeding with an interview at that time. The following morning, she was feeling better, as she acknowledged, although she was exhibiting symptoms of nausea. However, on several occasions, in response to Borg’s questions about her condition, she said that she was okay. She never asked to not proceed with the interview, and when given a choice she indicated that she would proceed. Borg’s questioning, while persistent, was never aggressive or intimidating.
[47] In the course of his cross-examination of the witnesses called by the Crown, amicus focused on the defendant’s capacity for meaningful communication in the English language. I accept that at the relevant time, almost five years ago, the defendant was not completely fluent in English, but I am satisfied that she was able to understand the questions that Detective Sergeant Borg asked, although she occasionally required clarification, and that she was able to adequately communicate her responses to those questions.
[48] Issues in relation to the extent to which a defendant is fluent in the language in which a statement was taken can arise in different ways on a voluntariness voir dire. For example, if a trial judge were of the view that a defendant’s ability to communicate was so deficient that it was impossible for the defendant to have understood the questions asked or to have meaningfully responded to them, the judge could find that what was being proffered could not be said to be the defendant’s statement: R. v. Lapointe and Sicotte, 1983 CanLII 3558 (ON CA), [1983] O.J. No. 183, at paragraph 43 (C.A.). I have no doubt that any difficulties that the defendant had in relation to fluency fell far short of meeting that test.
[49] There may be other circumstances in which a suspect’s inability to understand or communicate in the language in which the statement was taken will be relevant to an assessment of voluntariness. For example, the presence or absence of a caution is a matter to be considered in relation to voluntariness, and thus the inability of a suspect to understand a caution because of a language problem may be relevant to whether the Crown has proved voluntariness beyond a reasonable doubt. In this case, however, I have no doubt that the defendant understood what she was told with respect to her rights. After being advised in English of her right to counsel by Detective Ashley, and after he asked her if she wanted to call a lawyer, the defendant responded, without the necessity of translation, “Yes, I think I should”. Ashley then provided the defendant with both the primary and secondary cautions, at the conclusion of which he had Constable Chen translate what he had said. When Chen was finished, the defendant stated that she understood. Prior to beginning the interview the next morning, Detective Sergeant Borg reiterated the defendant’s right to counsel and re-cautioned her, and again she indicated that she understood.
[50] The counsel of prudence may well have been to have an interpreter present at the time of the interview, at least on a standby basis, but I am satisfied that the absence of an interpreter did not undermine the voluntariness of what the defendant said in the interview and that it does not raise a doubt with respect to whether what she said was in fact her statement.
[51] Accordingly, I am satisfied beyond a reasonable doubt that everything that the defendant said to Detective Sergeant Borg and Detective North was voluntary.
C. Were the Defendant’s Charter Rights Infringed in the Course of the Interview?
[52] At about 3:17 p.m. on February 29 Detective Ashley arrested the defendant for the offence of offering an indignity to a dead human body and he informed her of her right to counsel. There was no mention made by Detective Ashley, or by anyone else on February 29, of the potential for a charge of murder. Accordingly, when the defendant exercised her right to counsel that afternoon, the only jeopardy that had been communicated to her concerned what she may have done after her husband died.
[53] The potential for a murder charge arose for the first time the next morning, at the outset of the interview with Detective Sergeant Borg and Detective North. After telling the defendant that she was going to be charged with the indignity offence, Borg continued:
But I also wanna tell you that um myself and Rob, we’re from the Homicide Squad… We investigate murders okay and although we don’t know just exactly who is dead in your apartment or why that person died we are treating that death as suspicious….. [A]lthough you’re charged with an Indignity to a Dead Body right now um if the circumstances – if what we determine today through our investigation and I’ll talk to you about that um determines that that person was murdered you also may be charged with murder. Okay? Do you understand that?
TENG: But I – I – of course I---
A few moments later, Borg repeated the warning:
So I also have to tell you that right now you’re being charged with a criminal offence Indignity to a dead body. Like I said depending on how the investigation progresses, what we learn, you also could be charged with murder. Okay?
[54] Detective Sergeant Borg then re-advised the defendant of her right to counsel and gave her the opportunity to contact counsel again. The defendant declined the opportunity and the interview proceeded.
[55] After the interview had been going for close to an hour, Detective North received a text or email on his phone. He showed the message to Borg. It is a reasonable inference that the message was from Detective Vruna, who was present at the autopsy that was occurring at the same time as the interview with the defendant. A few minutes later Borg told the defendant about the message:
BORG: These mess’-these messages that I’m getting here---
TENG: Mm-hm.
BORG: Okay are – are telling me---
TENG: Excuse me.
BORG: ---some of what they’re learning---
TENG: Mm-hm.
BORG: ---as they examine your husband’s body. Okay and what – what I’m reading---
TENG: Mm-hm.
BORG: ---is beginning to tell me that it looks like although we don’t know for sure just yet but we will, that your husband was murdered.
TENG: Murdered?
BORG: Yes.
TENG: Okay.
BORG: I wanna be very honest with you okay.
TENG: Mm-hm.
BORG: That’s why I told you that. I’m not gonna mislead you.
TENG: Mm-hm.
BORG: I also don’t expect that you’re gonna mislead me Eliza.
TENG: Mm-hm.
BORG: Okay. Something has happened between you and Darren that caused his death.
TENG: Me?
BORG: Let me say that again. Something has occurred---
TENG: Mm-hm.
BORG: ---between you---
TENG: Mm-hm.
BORG: ---and Darren---
TENG: Mm-hm.
BORG: ---your husband---
TENG: Mm-hm.
BORG: ---that caused his death.
TENG: I caused his death?
BORG: Well I’m asking you because that’s the way it appears right now.[8]
[emphasis added]
[56] After the interview had proceeded for another 40 minutes, the following exchange occurred:
BORG: ---but I – I wanna be ah – ah I want to try to be Eliza I wanna help you. Okay?
TENG: Mm-hm.
BORG: You see. I know that sounds kind of silly right because I’m a police officer you see and ah I have a job to do Eliza. I’m trying to understand everything that’s happened here. Okay and I would be not telling you the truth if I were to tell you that you’re not in any trouble. Okay.
TENG: Mm-hm.
BORG: Okay?
TENG: Mm-hm.
BORG: You see a person has died okay and I’m trying to understand why and as I said to you before Eliza I don’t know if it’s a murder, I don’t know if your husband was murdered or not but I’m telling you that if he was murdered I think that you did it.
TENG: I did it?
BORG: I think you did.
TENG: Well I didn’t.
BORG: Okay. I think---
TENG: Not me. Not me. Absolutely not me
.
BORG: If not then who Eliza? Because if – if your husband was murdered and you did not do it okay then you need to help us alright. I think that you would want to help us. Let me say that again.
TENG: Yeah I want to help but how can I help? Absolute not me.
BORG: Then let’s get right to it okay here alright. So if your husband was murdered---
TENG: Mm-hm.
BORG: ---and if you did not murder him then who else could have murdered your husband?
TENG: How can I know? If I know – if I know I may call the 9-1-1 but I’m – I do not know.[9]
[57] Later, Borg repeated the allegation that the defendant was involved in causing her husband’s death:
BORG: Mm-hm. See I find all of that very confusing. Right?
TENG: Mm-hm.
BORG: And it seems to me that one of the only reasons why that could happen is because if your husband was murdered you were involved.
TENG: I’m involved?
BORG: You are involved.
TENG: Why want to kill my husband?
BORG: That’s a very good question. That’s the question I’d like to ask you.
TENG: Yeah. Why should I want?
BORG: Something happened between you and your husband?
TENG: No nothing. What kind of things?
BORG: I don’t know. But if your husband was murdered I’m gonna find out. [10]
[emphasis added]
[58] In my opinion, the information that Detective Sergeant Borg communicated to the defendant after being shown the message from Detective Vruna significantly changed the jeopardy that she was facing. The fact that Borg brought it to her attention within minutes of receiving it demonstrates that he realized that the situation had changed. It is true that Borg had told the defendant of the possibility that she could be charged with murder if the investigation revealed that the death of her husband was a murder. However, nowhere in what Borg had said earlier was there any indication that he had a basis for suspecting that it was a murder, nor was there any suggestion that he believed that she was involved in causing her husband’s death.
[59] The message from Vruna changed the situation in two important respects: Borg now had a basis for believing that the death may be a murder, and he now believed that the defendant was involved in causing the death. Indeed, he put the latter allegation to her directly: “Something happened between you and [your husband] that caused his death”.[11] Later in the interview, Borg was equally explicit: “I’m telling you that if he was murdered I think that you did it.”[12]
[60] There is no question that up to the point when Detective Sergeant Borg received the message from Detective Vruna, the defendant’s rights under s. 10(b) of the Charter had been fully respected. The question is whether in light of Vruna’s message, and in light of what Borg told the defendant about that message, he was under a duty to afford the defendant a further opportunity to consult counsel.
[61] In R. v. Sinclair, 2010 SCC 35 (CanLII), Chief Justice McLachlan stated that "where a detainee has already retained legal advice, the implementational duty on the police under s. 10(b) includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.”[13] With respect to what might constitute a change of circumstances, the Chief Justice stated: “If the investigation takes a new and more serious turn as events unfold, [the initial advice from counsel] may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.”[14]
[62] In substance, what Detective Sergeant Borg told the defendant after receiving the message from Vruna was that this was now a murder investigation and that he believed that she had caused the victim’s death. To paraphrase what Chief Justice McLachlan said in Sinclair, the investigation had taken a new and more serious turn, the initial advice from counsel might no longer be adequate to the jeopardy the defendant was now facing, and in order to fulfill the purpose of s. 10(b) she should have been given a further opportunity to consult with counsel and obtain advice about the change in jeopardy.
[63] Accordingly, I ruled that the failure to provide a further opportunity to consult counsel was an infringement of s. 10(b) and that anything that the defendant said after the change in jeopardy was obtained in a manner that infringed the defendant’s rights and was subject to exclusion under s. 24(2).
MacDonnell, J.
Released: February 2, 2017
[1] In the course of subsequent discussions with the parties and amicus, I held that the initial portion of the interview, prior to the breach of the defendant’s s. 10(b) rights, was severable from the portion that followed. The Crown took the position that in light of the ruling that a breach had occurred, it would only seek to adduce the initial portion. The refusal of the defendant to participate in the hearing made it difficult to obtain her position with respect to whether she wanted to have the latter portion excluded. After hearing from the parties, and from amicus, I ruled that the Crown would be permitted to put only the initial portion into evidence.
[2] At page 13ff of the transcript of the interview
[3] At page 19 of the transcript of the interview
[4] See pages 45, 97, 116 and 180
[5] At page 79
[6] At page 118
[7] At page 180
[8] At page 69ff of the transcript of the interview.
[9] At page 118 of the transcript of the interview.
[10] At page 157 of the transcript of the interview.
[11] At page 71
[12] At page 119
[13] At paragraph 53
[14] At paragraph 51
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