R. v. Truong, 2012 ABQB 181

Court of Queen ’ s Bench of Alberta Citation: R. v. Truong, 2012 ABQB 181 Date: 20120316 Docket: 110500915Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent (Appellant) - and - Brian Duy Truong Applicant (Accused) _______________________________________________________ Reasons for Judgment on Voluntariness of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Brian Duy Truong is charged with 23 offences. On April 14, 2011 he was interviewed by a detective with the Edmonton Police Service for a period of five hours.

The Crown applies to have the interview ruled admissible for possible cross-examination of Mr. Truong. Mr. Truong argues that any statements given during the course of the interview were not given voluntarily and applies for the exclusion of the evidence alleging a breach of his Charter rights under ss. 7, 10(

a) and 10(b). II. Background Facts

[ 2 ] On April 14, 2011, the Edmonton Police Service (EPS) executed a search warrant at the home in which Mr. Truong resided. [ 3 ] Constable Jason Forbes with the EPS was the first of the team of police executing the search warrant to enter Mr. Truong’s residence. He was met by a person at the door and was directed to Mr. Truong’s bedroom. [ 4 ] Forbes moved through the house, across the main floor, down a set of stairs to the bedroom in which Mr. Truong was sleeping. He called out to Mr. Truong, advising him that the Edmonton Police Tactical Unit was there and for Mr.

Truong to come out with his hands up and identify himself. [ 5 ] Mr. Truong opened the bedroom door and it appeared that he had been asleep. He was dressed only in his underwear. Constable Forbes indicated that he was cooperative. [ 6 ] Forbes took physical custody of Mr. Truong, led him into the hallway, placed him in handcuffs, and led him into the living room. The house was then cleared and everyone was stabilized. The handcuffs were then removed from Mr. Truong and he was allowed to put clothes on. [ 7 ] Forbes recalls asking Mr. Truong if he had anything on him that would hurt him and Mr.

Truong indicated that he did not. Forbes then searched the pants that Mr. Truong was putting on. Forbes testified that he did not ask Mr. Truong about any of the alleged offences and did not read him any of his rights. [ 8 ] Forbes testified that other than the “officer safety” discussion, he did not recall any other discussions with Mr. Truong. [ 9 ] Forbes handed Mr. Truong over to the investigative officers and had no further interactions with him. Forbes indicated that he did not have any concerns as to whether Mr. Truong understood him and had no concerns about Mr. Truong’s sobriety. At all times, Mr.

Truong was coherent and cooperative. [ 10 ] Detective Mark Fussell also attended at Mr. Truong’s residence. He was working with a partner, Detective Jeff Resler. Fussell and Resler attended at Mr. Truong’s residence at around 8:20 a.m. on April 14 but remained outside until Mr. Truong was arrested. Once Mr. Truong was arrested, at approximately 8:50 a.m., Fussell and Resler went into the home. When they entered, Mr. Truong was standing in the foyer and was handcuffed and dressed. Resler changed the handcuffs on Mr. Truong. [ 11 ] Fussell and Resler took Mr. Truong to their unmarked police vehicle.

From that point on, all discussions that took place with Mr. Truong present were audio recorded. Resler cautioned and Chartered Mr. Truong and Mr. Truong was transported downtown and placed in cells. Both Fussell and Resler indicated that Mr. Truong appeared to understand them, they understood him and he was sober. While Mr. Truong was with Fussell and Resler, there were no questions asked of Mr. Truong, there were no threats made to him and no offers of inducement, or promises of advantage made to him. [ 12 ] Detective Bloxham began an interview with Mr.

Truong at 9:35 a.m. on April 14, 2011 at Police Headquarters. Bloxham first met Mr. Truong at the beginning of the interview which was videorecorded. The search warrant was executed at Mr. Truong’s residence while he was being transported to police headquarters and while the interview was taking place. [ 13 ] The interview recording lasts a total of about five hours. There are three different occasions when Bloxham leaves the interview room and Mr. Truong remains alone in it. Those three occasions last for periods of about 15 minutes, 30 minutes and 50 minutes.

During each of these periods, and after Bloxham has left the interview room, Mr. Truong gets off the chair on which he is sitting and lies down on the floor. While he is not visible during the whole period that Bloxham is absent, it is acknowledged that he appears to be sleeping during those periods.

[ 14 ] Mr. Truong advised Bloxham early in the interview that he worked until 2:30 a.m. but stayed up until 7:30 a.m. playing video games. He testified that he had arrived home, after work, at about 3:00 a.m. He watched television from 3:00 to 4:00. While doing so, he smoked some marijuana (honey oil) and had a beer. He then had a shower and heated up some food in the kitchen. He grabbed another beer and went back to his room where he played a video game until 5:00 a.m. He then watched television for another two hours, until 7:00 a.m. He then went to sleep and was awakened by the police.

He said during the interview that he was tired or sleepy. [ 15 ] Bloxham advised Mr. Truong of the 17 counts he was facing at that time which included the allegation of sexual assault but did not include any charges relating to voyeurism or drugs. They did include an extortion count under s. 346(1.1) (

b) of the Criminal Code wherein it is alleged that Mr. Truong threatened to forward videotapes of the complainant engaging in explicit sexual acts to the Catholic School Board (her employer) and her family unless she remained in a relationship with him. [ 16 ] Bloxham then proceeded to advise Mr. Truong of his Charter right to retain and instruct counsel. He then read the standard caution advising him that he was not obligated to say anything and the secondary caution advising that regardless of what anybody might have said to him, he is not obligated to say anything. Mr.

Truong then signed a document acknowledging that his rights were read to him. Bloxham then provided a document to Mr. Truong listing the 17 counts he was facing. Each count was listed under one of eight different occurrences. The counts included three of unlawful confinement (s. 279(2)), two assaults with a weapon (s. 267(a)), two of extortion ( s. 346(1.1) (b)), two of uttering threats to cause death (s. 264.1(1)(a)), two of robbery (s. 344(1)(b)), one sexual assault (s.271), one assault (s. 266), one possession of a prohibited weapon (s. 91(2)), and three breaches of recognisance (s. 145(3)). [ 17 ] Mr.

Truong then exercised his right to call a lawyer. He was taken to a telephone room where he remained for approximately 15 or 16 minutes. He took the document listing the 17 counts with him. On his return, and after exchanging a few comments with Bloxham about history and employment, Mr. Truong indicated that he was “going to choose to remain silent” (p. 14, l. 23). [ 18 ] Bloxham responded by indicating that he respected Mr. Truong’s position. Bloxham then began talking about the relationship between Mr. Truong and the complainant, when it began and an early incident between them. Mr.

Truong responded by saying that he still chose to remain silent (p. 15, l. 23). [ 19 ] Bloxham then started going through some of the alleged occurrences and Mr. Truong confirmed that he had skimmed the charges but was “just curious though like what the allegations were” (p. 18, l. 2). Bloxham responded by stating that he had an obligation to go through them with Mr. Truong and explain them to him. [ 20 ] After going through some of the incidents or allegations, Mr.

Truong indicated that they were all “allegations”, asked whether he had to go through all of them (p. 19, l. 20) and stated that he did not “really want to go through like all eight of them” (p. 19, l. 25). He then stated again that he would “rather just remain silent and like let my lawyer deal with it” (p. 20, l. 5). Bloxham continued to talk to Mr. Truong and on numerous other occasions throughout the interview, Mr. Truong stated that he chose to remain silent. [ 21 ] There are two occasions in the transcript and on the video where the Accused asked for his jacket.

On the first occasion Bloxham said that they “can probably arrange that for you afterwards” (p. 37, l. 24). Later, Bloxham replied to an inaudible comment of Mr. Truong saying: “Yeah, I can probably get your jacket for you. Do you know if it was right next door here? Did you have it on when you came in?” (p. 63, ll. 12-14). It appears that Bloxham then retrieved the jacket and provided it to Mr. Truong as he had it during the period when Bloxham is out of the room. There is no suggestion by Mr. Truong to Bloxham as to why he would like his jacket.

While he testified that it was cold in the room, he did not mention this during the interview. There is nothing in the video that would make it apparent to Bloxham, the monitor of the video or any later viewer, that it was cold in the interview room or that Mr. Truong was cold. [ 22 ] At p. 38 of the transcript, Bloxham advised Mr. Truong that a number of photographs were taken of his room. He then said to Mr. Truong: ... There’s a quantity of what appears to be marijuana here under your bed. I don’t know as far as charges go I suppose there’s a possibility Brian, you may be charged with possession.

That’s not the purpose of this investigation right now so I can certainly talk to the primary investigator and talk to him about that. I’ve seen drugs or anything that are found during a search warrant like this are seized anyway, so. ... (p. 38, l. 25 - p. 39, l. 4).

Mr. Truong now says that these statements amounted to a promise or inducement by Bloxham to get Mr. Truong to talk. [23] Near the end of the interview and after Bloxham had been out of the room for a few minutes, Bloxham returned and advisedMr. Truong that the search of his home had resulted in a couple of additional charges relating to drugs discovered in his bedroom as wellas a charge for breaching a recognisance and finally, a charge of voyeurism under s. 162(1)(b). [24] Bloxham then again read to Mr.

Truong his right to retain counsel and after being provided with some of the circumstancesknown by Bloxham of the additional alleged offences, Mr. Truong was taken to a telephone room where he again exercised his right tocounsel. There were no further discussions and the interview ended. III. Issues i. Was the statement by the Accused to Detective Bloxham voluntary? ii. Were any of the Accused’s Charter rights under ss. 7, 10(

a) or 10(

b) violated? IV. Discussion [25] In order for the interview of Mr. Truong, and the statements contained therein, to be ruled admissible, the Crown mustestablish beyond a reasonable doubt that the statements made by Mr. Truong were made voluntarily. The onus is on Mr.

Truong toestablish the alleged Charter breaches on a balance of probabilities. [26] In R v Oickle, 2000 SCC 38, [2000] 2 SCR 3, the Supreme Court of Canada held that if police interrogators subject anaccused to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, then theconfession should be excluded. Between the two extremes, oppressive conditions and inducements can operate together to excludeconfessions (at para. 68). Iacobucci J. said that the “doctrines of oppression and inducements are primarily concerned with reliability” (atpara. 69).

He states: ... Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, orpolice trickery that unfairly denies the accused’s right to silence, this court’s jurisprudence has consistently protected the accused fromhaving involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. (atpara. 69) [27] The analysis of whether a confession is involuntary is a contextual one.

The Court must understand the circumstancessurrounding the confession and determine whether it raises a reasonable doubt as to voluntariness. A minor inducement may beimpermissible depending upon the circumstances. Further, where an accused is treated properly, it will take a stronger inducement torender the confession involuntary (at para. 71). [28] In R v Hebert, (SCC), [1990] 2 SCR 151, McLachlin J. emphasized that the most important function of legaladvice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence.

His right to speak tolegal counsel ensures that he becomes aware of his right not to speak to the police and to obtain advice with respect to the choice hefaces. Sections 7 and 10(

b) confirm the right to silence in s. 7. [29] The Court went on to state that there is nothing in the rule prohibiting the police from questioning the accused in the absenceof counsel after the accused has retained counsel and presumably been informed of the right to remain silent. As long as the police arenot posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. McLachlinJ. emphasized in Hebert that “police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind,does not breach the right to silence” (at p. 184).

[ 30 ] In R v Singh , 2007 SCC 48 , [2007] 3 SCR 405, the accused was advised of his right to counsel and exercised that right. Subsequently, during the course of two police interviews, the accused stated on numerous occasions that he did not want to talk about the incident. On each occasion, the interviewing officer would either affirm the accused’s right not to say anything and state that it was still his duty or desire to advise Mr. Singh of the evidence or he would deflect Mr. Singh’s assertion and eventually engage him again in at least limited conversation.

The statements were ruled admissible as the trial judge was satisfied that they were voluntary and there was no breach of the accused’s right to silence under s. 7 of the Charter . [ 31 ] The Supreme Court in Singh recognized the overlap between the inquiry into voluntariness and the review under s. 7 of the Charter in respect of an alleged breach of an accused’s right to silence (at para. 24). Recognizing the accused’s right to silence, the Court then addressed the role of police officers in their investigation.

The Court stated at para. 28: What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception.

Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime. [ 32 ] As the Court then pointed out at para. 29, the information obtained from a suspect is only useful if it can be relied upon for its truth. This is the primary reason for the confessions rule and, as a result, the interrogation of a suspect can only be done within the framework of the rule set out in Oickle .

The Court later emphasized the point stressed in Hebert of the importance of achieving a proper balance between the individual’s right to choose whether to speak to the authorities and society’s interest in uncovering the truth in crime investigations ( Singh at para. 45 ). [ 33 ] The importance of balancing an accused’s right to remain silent with the societal interest in investigating and resolving crimes was considered again in the decision of R v Sinclair , 2010 SCC 35 , [2010] 2 SCR 310.

The Court referred to Singh and the requirement that trial judges take into account all of the relevant factors in determining whether the Crown has established that the accused’s statement is voluntary. In some circumstances, the evidence will support a finding that the continued questioning by the police in the face of an accused’s repeated assertions of his right to silence denied the accused a meaningful choice whether to speak or to remain silent. The number of times an accused asserts his or her right to silence is part of the assessment of all the circumstances, but is not in itself determinative.

The ultimate question is whether the accused exercised free will by choosing to make a statement ( Sinclair at para. 62 and Singh at para. 53 ). [ 34 ] The Court in Sinclair also emphasized again that “the police are charged with the duty to investigate alleged crimes and, in performing this duty, they necessarily have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime.

While the police must be respectful of an individual’s Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say ... would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone” (at para. 63). [ 35 ] With these principles in mind, I will now address the specific issues raised by Mr. Truong: A. Not Being Advised of his Jeopardy [ 36 ] Mr. Truong acknowledges that he was advised of 17 charges by Bloxham at the commencement of the interview.

However, he was never advised that there was an additional charge of voyeurism being considered against Mr. Truong under s. 162(1)(b). In particular, he was not advised of an allegation that he had made a visual recording of the complainant engaged in explicit sexual activity in circumstances where she had a reasonable expectation of privacy and that this allegation may result in a further charge against him. [ 37 ] Bloxham testified that he was not aware that such a charge was being contemplated at the start of his interview with Mr. Truong. Mr.

Truong says that Bloxham should have been aware as he had received a copy of the search warrant being executed on the morning of the interview and the search warrant indicated that the police were seeking items that would afford evidence of a number of

offences including one of voyeurism under s. 162(1)(b). Further, Mr. Truong argues that if Bloxham was unaware that a charge ofvoyeurism was going to be laid, it was because that information was deliberately withheld from him by the primary investigator in thematter, Detective Innes, or other members of the police force. [38] I believe the evidence of Bloxham when he says that he did not know that such a charge would be laid when he began hisinterview with Mr. Truong. I do not accept the “conspiracy theory” advanced by Mr.

Truong to the effect that the laying of a voyeurismcharge was deliberately being withheld from Bloxham so that he could carry on his interview and obtain inculpatory statements from Mr.Truong. [39] Mr. Truong was aware of a number of extremely serious charges he was facing at the commencement of the interview.Offences such as extortion and robbery carry with them potential sanctions of imprisonment for life. Unlawful confinement and sexualassault carry potential punishments of imprisonment for ten years. The offence of voyeurism carries with it a maximum punishment offive years imprisonment. Mr.

Truong knew he was facing extremely serious charges at all times throughout the interview. In otherwords, the jeopardy Mr. Truong knew he was facing at the time of the interview was far greater than the one he was facing under apotential voyeurism charge. [40] Further, discussions that occurred with respect to the videotaping of the sexual activity between Mr. Truong and thecomplainant related more specifically to an allegation of extortion against Mr. Truong for threatening to provide copies of thevideorecordings of the complainant to her employer, the Catholic School Board, and her family.

When Bloxham advised Mr. Truong ofthe four additional charges being laid against Mr. Truong late in the interview, including the one of voyeurism, he also advised Mr.Truong of his rights and the interview ended shortly thereafter. [41] In R v Smith, (SCC), [1991] 1 SCR 714, the Court emphasized the requirement that the accused understandgenerally the jeopardy in which he or she finds himself, and appreciate the consequences of deciding for or against counsel (at para. 26).The Court said that it is not a requirement that full information be provided to an accused.

As the Court stated, the police themselves maynot know the precise offence, or offences, with which an accused may be charged at the initial stages of an investigation. It is onlynecessary that the trial judge be satisfied that in all of the circumstances, the accused generally understood the sort of jeopardy he facedand the accused need not be aware of the precise charge faced. The accused must be possessed of sufficient information to allow him tomake an informed and appropriate decision as to whether to speak to counsel.

The Court must consider the total situation as it impacts onthe understanding of the accused rather than on the technical detail of what the accused may or may not have been told (at paras. 26 to28). [42] I am satisfied that Mr. Truong was fully aware of the seriousness of his situation. He faced great jeopardy as a result of thecharges he was advised of and which were listed for him on the sheet of paper provided by Bloxham. He knew that one of those chargesrelated to sexually explicit images that were videorecorded by him and were the subject of an extortion charge against him. [43] Mr.

Truong was aware of the jeopardy he faced and there was no violation of s. 10(

a) of his Charter rights. B. Inducement [44] Mr. Truong argues that he was induced to speak to Bloxham by a promise. He points to Bloxham’s comment at one point thatmarijuana was found under Mr. Truong’s bed and that Bloxham “can certainly talk to the primary investigator and talk to him aboutthat”. The comment by Bloxham is contained in a lengthy description by him of what is depicted in various photographs or what wasfound in Mr. Truong’s bedroom. There is never a discussion as to whether there would be any advantage to Mr. Truong by making astatement or what advantage he might expect. [45] Mr.

Truong testified in the voir dire that he considered Bloxham’s statement to be a promise that he would not be chargedwith possession of marijuana and this induced him to volunteer statements. This position does not find support in the recording ortranscript of the interview. That is, there is no suggestion anywhere that if Mr. Truong cooperated, a charge would not be laid or thatthere may be Court leniency or any other form of quid pro quo. The discussion immediately following Bloxham’s comment relates to adescription of the house in which Mr. Truong lived.

When the discussion turned to the video recordings of the complainant, which arereferred to in the context of the extortion charge, Mr. Truong conceded they could be found on one of his computers but stated that thecomplainant consented to the recordings being made. He also advised Bloxham that the complainant had told him that if he ever left her,he would regret it. He also appeared to direct Bloxham to his computer so as to ensure that the police would leave alone the computers

and equipment belonging to his family or co-workers. [ 46 ] Importantly, however, Mr. Truong clearly acknowledged and recognized his right to remain silent a short time after the alleged inducement when he again said that he chose to remain silent (p. 47, l. 15 and again at l. 21). On a couple of occasions later in the interview, he again acknowledged and recognized his right to remain silent (p. 74, l.26 and p. 75, l. 5). There is nothing in the video recording that would suggest that Mr. Truong was induced to talk by Bloxham’s statement about the marijuana.

Further, assuming he did feel induced to talk, and believed he would gain a benefit by doing so, then why did he subsequently, on three or four occasions, again invoke his right to remain silent? [ 47 ] Finally, when Bloxham returned to the room after a short break near the end and advised Mr. Truong of the four additional charges, including one count of possessing marijuana, there was no response from Mr. Truong. He testified that he was surprised. But he never expressed any surprise, for example, by stating “What about our agreement?” or “You promised you would look after that” or anything of that sort.

If he truly believed an agreement or promise or inducement had been made, one would have expected some reaction from him expressing his understanding. There was none. [ 48 ] Mr. Truong testified during the voir dire . His testimony seemed deliberately tailored or manufactured to support his allegation. I did not believe his evidence that he believed he was induced to speak by a promise of some sort. His evidence did not leave me in any doubt as to whether he was affected by an inducement, nor did the balance of the evidence leave me with any doubt as to whether he was induced to talk.

Quite simply, he was not induced into making any statements to Bloxham by anything that Bloxham may have said to him. C. Fatigue [ 49 ] As in Singh , Mr. Truong argues that the approach by Bloxham of presenting to Mr. Truong the case against him after Mr. Truong, on numerous occasions, indicated his choice to remain silent, had the effect of undermining his right to remain silent and depriving him of an operating mind. He testified that he was fatigued and argues that this was known by Bloxham who ignored Mr. Truong’s condition and persisted in speaking to him. [ 50 ] I accept that Mr. Truong was tired.

On three occasions when Bloxham left the room, Mr. Truong appeared to sleep, waking only when Bloxham reentered the room. He also told Bloxham that he was tired or sleepy. [ 51 ] I accept that one who is tired to the point of being fatigued may be more susceptible to having his will overborne such that any statement he makes cannot be said to be voluntary. However, I find that is not the case with Mr. Truong. [ 52 ] It is clear on watching the videotape of the interview that Mr. Truong understood precisely what was said to him at all times.

He was properly responsive to the comments and statements of Bloxham to which he did respond. Notwithstanding that he appeared to have slept during those intervals after Bloxham left the room, as soon as Bloxham returned, he immediately arose and returned to his chair. He then appeared to be fully responsive and alert with Bloxham. Bloxham never appeared to be forceful or threatening and simply continued talking about the evidence after Mr. Truong asserted his choice to remain silent. Mr.

Truong was never compelled to respond nor to speak, yet he did so at various times when Bloxham referred to particular incidents or pieces of evidence. He acknowledged his understanding of the situation facing him, remaining cooperative and polite throughout. He was not under the influence of any intoxicating alcohol or drug, nor did he appear frightened in any way. Further, there was nothing done by Bloxham to force Mr. Truong to stay awake. [ 53 ] Mr. Truong denied that he had an operating mind throughout the interview.

However, he testified that there were at least a couple of occasions when he knew that Bloxham was giving him information that was untrue on a matter that was wholly unrelated to any of the charges or incidents at issue. In fact, he acknowledged in his testimony that near the end of the interview, he deliberately lied to Bloxham about his recollection of the unrelated incident. In his testimony, he said that he lied because he was told by a lawyer that it was all right to lie to police officers in interviews but not when testifying in Court.

The telling part of this evidence was the fact he was able to process the information provided by Bloxham as well as a course of conduct (the lying) at a time when he alleged that he did not have an operating mind. In short, I again did not believe Mr. Truong’s evidence on this issue nor did his evidence leave me with any doubt that he had an operating mind at the time. Further, none of the other evidence led during the voir dire left me with any doubt that

he had an operating mind at all times during the interview. [ 54 ] Finally, while there were two occasions when Mr. Truong asked for his jacket, there was nothing said by him to indicate that he was cold and required the jacket for warmth. He never mentioned that he was cold to anyone, nor was it apparent from his mannerisms that he was cold. There is no suggestion that the fact that he had to wait to get the jacket caused him discomfort or oppressed him in any way. Had he needed it for warmth, he could have and should have said so. [ 55 ] While I accept that Mr.

Truong was tired, he was not oppressed and his will was not overridden. At all times, Mr. Truong had a fully operating mind and was cognizant of, and reactive to, the situation he was in and the statements made to him. V. Conclusion [ 56 ] I am satisfied that there were no threats or promises made to Mr. Truong by Detective Bloxham or anyone else. There were no comments by Bloxham that served to induce Mr. Truong into speaking or responding to him. There was nothing done by Bloxham that unfairly denied Mr. Truong’s right to silence. Mr.

Truong knew of his right to remain silent and he expressed it a number of times. While he may have been tired or sleepy, he was alert and appropriately responsive when speaking to Bloxham. At no time did he appear confused. There was no atmosphere of oppression. He had an operating mind capable of exercising his fundamental right to remain silent and his right to speak to counsel. [ 57 ] I am satisfied beyond a reasonable doubt that Mr. Truong’s statements were voluntary. He has failed to establish on a balance of probabilities a breach of his s. 7, s. 10(

a) or s. 10(

b) Charter rights. The interview is admissible. Heard on March 5-13, 2012. Delivered orally on the 15 th day of March 2012. Dated at the City of Edmonton, Alberta this 15 th day of March 2012. Eric F. Macklin J.C.Q.B.A. Appearances: Chantelle Washenfelder for the Respondent (Crown) Peter Shipanoff for the Applicant (Accused)