R. v. Ng et al. Date:, 2012 BCPC 513

Citation: R. v. Ng et al. Date: 20120711 2012 BCPC 0513 File No: 55856 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Tak Ming CHAN, Yiu Tim KWOK, Hoi Sing LAI, Wing Kee NG and Hin Cheung LAU REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE E. J. McKINNON Counsel for the Crown: J. Walker and H. Pineo Self-represented, did not appear in person: Tak Ming Chan Counsel for Yiu Tim KWOK : A. Ip Counsel for Hoi Sing LAI : I. Donaldson Counsel for Wing Kee NG : D. G. Baker Counsel for Hin Cheung LAU : M.B. Thompson Place of Hearing: Richmond , B.C.

Dates of Hearing: June 5, 6, 7, 12, 13 and 14, 2012 Date of Decision: June 18, 2012 Date of Judgment: July 11, 2012 A corrigendum was released by the Court on July 12, 2012. The corrections have been made to the text and the Corrigendum is appended to this document . [ 1 ] The accused, Wing Kee Ng, is charged on a 2-count indictment with importing and possessing Ketamine for the purpose of trafficking contrary to Section 6(1) and 5(2) of the Controlled Drugs and Substances Act respectively.

Although Crown has since stayed the charges against one of the co-accused and one other has been severed, the style of cause of these written reasons reflects those persons who were before the court at the time of this decision. [ 2 ] The Crown seeks to have admitted a statement the accused gave to police after his arrest, and the accused alleges violations of his

Section 10(

a) and (

b) Charter rights. He also submits that his statement to police was not voluntary and should not be admitted. [ 3 ] Although the evidence relating to the alleged violations of

Section 10(

a) and (

b) of the Charter and the voluntariness of the accused’s statement to police was heard in a blended voir dire, I am mindful of the burden upon the Crown to prove the voluntariness of the statement beyond a reasonable doubt, and the burden on the accused to establish a violation of his

Section 10(

a) and (

b) of the Charter rights on a balance of probabilities. I have borne these different burdens in mind in considering the evidence and in reaching a decision. [ 4 ] On June 18 th , 2012, I advised counsel and the accused of my decision on the blended voir dire issues. I found there to be no violation of

Section 10(

a) or (b). I found that the accused’s statement given to Cst. Gu and Au was not voluntary and was not admissible. The evidence on the blended voir dire had included evidence in relation to two earlier statements given by the accused to Cst. Shum and Intelligence Officer Fan. The Crown had indicated it was not seeking to tender these statements in the trial proper. For completeness however, I indicated that the statements taken by Cst. Shum and Intelligence Officer Fan were both voluntary and were admissible.

I advised counsel and the accused that written reasons on the blended voir dire would be filed at a later date so as to allow the trial to continue. There are several co-accused, and any delay so as to allow for the preparation and distribution of written reasons on the blended voir dire involving Mr. Ng might affect the orderly progress of the trial. These then are my Reasons on the blended voir dire. [ 5 ] Any consideration of the admissibility of a statement given by an accused to police is a contextual exercise. I have carefully considered all the evidence on the voir dire. The following is a

summary of the evidence on the blended voir dire and my findings of fact in relation to that evidence. [ 6 ] As a result of information obtained by the Canada Border Services Agency, the Greater Vancouver Drug

Section had been surveilling several suspects in relation to a container imported by sea into Canada. On December 11, 2010, members of the Richmond RCMP Detachment, assisting the Greater Vancouver Drug Section, arrested seven suspects. This prosecution involves five of those arrested. [ 7 ] This accused, Mr. Ng, was arrested on December 11, 2010 at about 5:10 p.m. The arrest was made at a warehouse in Richmond. Cst. Ellenberger, a member of the RCMP Greater Vancouver Drug Section, was the officer who effected the arrest of Mr. Ng.

At the time of his arrest, he was sitting in the passenger front seat of a Mercedes motor vehicle in front of the warehouse with some of the co-accused. Cst. Ellenberger removed him from the vehicle and informed him he was under arrest for the importation of a controlled substance. He then asked Mr. Ng if he understood. Mr. Ng said no. Cst. Ellenberger asked him if he wished to speak to a lawyer. Mr. Ng shook his head in response. He then asked him if he understood, to which Mr. Ng said no. Cst. Ellenberger asked him where he was from. Mr.

Ng responded Hong Kong, that he spoke Cantonese and that his English was very limited. Cst. Ellenberger then searched Mr. Ng for officer safety purposes. He took him to his police vehicle, put him in handcuffs and placed him in the rear of his vehicle. [ 8 ] Cst. Ellenberger read Mr. Ng his Charter rights verbatim from his official police card. He again informed Mr. Ng that he was under arrest for importation of a controlled substance, and informed him of his right to counsel. He asked Mr. Ng if he understood, to which Mr. Ng responded that he didn’t understand what Cst. Ellenberger was saying. Cst.

Ellenberger informed him there would be a Cantonese speaking member at the Detachment on arrival. [ 9 ] Cst. Ellenberger left the scene with him at 6:01 p.m. Mr. Ng had been able to inform Cst. Ellenberger that his arm was sore and Cst. Ellenberger had loosened the handcuffs to alleviate his discomfort. Mr. Ng indicated he was feeling cold, and Cst. Ellenberger turned up the vehicle heat. All conversation in the motor vehicle was about the wellbeing of the accused. They arrived at the Detachment at 6:16 p.m. [ 10 ] Cst. Ellenberger brought Mr. Ng to cells, and handed him over to be booked in. Cst.

Gu was the Cantonese speaking RCMP officer who was assigned to assist the arrestees who spoke Cantonese or Mandarin. Cst. Ellenberger told Cst. Gu Mr. Ng could not speak English, and Cst. Gu obtained Mr. Ng’s name from him. Cst. Ellenberger also handed over the personal items he had obtained from Mr. Ng during the search at the scene, and these were placed into an evidence bag. [ 11 ] Cst. Ellenberger testified that Mr. Ng was probably in the back of his police vehicle, waiting to be transported to the Detachment for approximately 45 minutes at the scene. Cst.

Ellenberger said that the delay was caused by the need to clear the scene where several suspects had been arrested, to conduct personal searches of all of them, to search the motor vehicle in which the suspects

had been seated, and to clear the warehouse area. [ 12 ] Cst. Ellenberger had a notation in his log book that Cst. Gu had chartered and warned the accused, and that Mr. Ng had requested to speak to counsel. He testified that he was not present when that took place. Cst. Ellenberger testified it was Cst. Gu’s responsibility to provide Mr. Ng with an opportunity to speak to counsel. [ 13 ] Cst. Gu testified that his first languages are Shanghaiese and Mandarin, but he also speaks Cantonese. He immigrated to Canada in 1996 and joined the RCMP in Richmond in 2008.

On December 11, 2010, he was asked to provide several suspects who had been arrested with their Charter rights and warning. He was informed they only spoke Cantonese. [ 14 ] At about 6:02 p.m., Cst. Gu began to charter and warn each of the arrestees in this investigation. Mr. Ng was the last to be chartered and warned by Cst. Gu at 6:43 p.m. Cst. Gu testified that they were in the booking area of the Richmond RCMP Detachment. He asked Mr. Ng if he understood his Charter rights, and Mr. Ng indicated he did understand. Cst. Gu asked Mr. Ng if he wished to speak to Legal Aid or to any lawyer, and Mr. Ng said he did.

Cst. Gu then read the official warning and asked if he understood. Mr. Ng indicated he did understand. [ 15 ] Cst. Gu testified that another officer was assigned to take each of the accused to the private phone room in the Detachment so that they could exercise their right to counsel and speak to counsel in private. Cst. Gu could not recall whom he told that Mr. Ng wished to speak to counsel, and had no notes of which officer was assigned to do so. Cst. Jang testified that he was the officer assigned to assist. Cst.

Jang testified that the Richmond Detachment at that time had only one private phone room from which persons who had been arrested could access their right to counsel in private. The RCMP Detachment has since vacated that building and has moved to a new Headquarters Building in Richmond. Cst. Gu testified that he chartered and warned all of the accused in the same small area near the booking area in the Richmond Detachment. After he finished, he asked his corporal whether he was needed further, and was told no. Cst. Gu went off shift at 7:36 p.m.

He testified it is quite common for him to be called in to charter and warn persons who have been arrested who only speak Chinese, and have that as his only task. He had no idea where Mr. Ng was from or whether he was familiar with Canada and its legal system. In his experience, there are a lot of ethnic Chinese living in the Lower Mainland who don’t speak English. [ 16 ] Intelligence Officer Fan of the Canadian Border Services Agency was assisting at the Detachment on December 11, 2010 with

interpretation into Cantonese. Cantonese is Intelligence Officer Fan’s first language. He arrived about 6:30 p.m., and interpreted into Cantonese as required by various officers, including Cst. Jang, Kwok, and Sallinen. [ 17 ] Cst. Sallinen was assigned the task of booking five people into cells. This included taking their photographs, fingerprints, and ensuring they had had access to counsel if they wished it. [ 18 ] Cst. Sallinen testified that at 6:55 p.m., with Cst. Gu, he did an initial head count of the people he had been assigned to. Cst.

Gu was assisting by obtaining dates of birth, names, and ensuring each was chartered and warned. Although Cst. Sallinen had been informed there would be five persons in custody that he had to deal with, it turned out there were seven. It took some time to process each of them and there was no particular order in which each was dealt with. Mr. Ng was sitting on a bench in the booking and cell area of the Detachment while the others were being chartered and warned nearby. [ 19 ] At approximately 7:36 p.m., Cst. Sallinen came to Mr. Ng. Cst. Sallinen had no notes or recollection that Cst. Gu informed him that Cst.

Gu had previously chartered and warned Mr. Ng, or that Mr. Ng had told Cst. Gu that he wished to speak to counsel. Cst. Sallinen was aware before he dealt with Mr. Ng. that someone had chartered and warned Mr. Ng, but he did not know who that was, and did not know that Mr. Ng had said he wished to speak to counsel. Cst. Sallinen, with I.O. Fan’s assistance interpreting into Cantonese, chartered and warned Mr. Ng again. I.O. Fan testified that he asked Mr. Ng if he wished to speak to counsel, and Mr. Ng said no. I.O. Fan believed that Cst. Sallinen had not heard Mr. Ng’s response, because Cst. Sallinen asked Mr.

Ng again through I.O. Fan if he wished to speak to counsel. Mr. Ng. again said no. Cst. Sallinen’s notes contain an entry that Mr. Ng was offered an opportunity to speak to counsel twice and that he twice declined. [ 20 ] Cst. Sallinen testified that he first booked each of the seven persons who had been arrested into cells. He then went through the fingerprinting process with each one. This took approximately 15 to 20 minutes for each person. Mr. Ng was the third person to be fingerprinted. [ 21 ] Cst. Jang, with I.O.

Fan interpreting, had been informed that none of the persons arrested had their own lawyer and that anyone who wished to contact counsel wished to speak to a Legal Aid lawyer. He contacted Legal Aid and asked for a Cantonese speaking lawyer to call back at about 8:38 p.m. About 7:53 p.m., he began with the first of the arrestees. Mr. Ng was the last one that Cst. Jang offered to assist to speak to counsel if he wished. There was no particular order in which the persons arrested were offered the opportunity to speak to counsel. With I.O. Fan interpreting, Cst. Jang was told by Mr.

Ng that he did not wish to speak to counsel. He was not informed that Mr. Ng had earlier indicated that he did wish to do so. Cst. Jang testified he was aware that under such circumstances, a second warning might be required. [ 22 ] The two jail guards who were on duty in cells on December 11 th and 12 th testified on the voir dire. Grant Toews was on the night shift from 7:00 p.m. to 7:00 a.m. on December 11/12, 2010. Several new arrests were already in custody when he started his shift at 7:00 p.m. He has no specific recollection of Mr. Ng.

The cell log book contains entries made by jail guards including any movements of prisoners in and out of cells, any visits to cells, or anything about the behaviour or wellbeing of someone in cells. An entry at 8:27 p.m. December 11th indicates that Mr. Ng was then sitting on a bench in the booking area near cells. The notation is that he was asked if he wished to speak to counsel and that he declined. An entry for 11:35 p.m. indicates that Cst. Sallinen had completed booking Mr. Ng into cells. An entry for 1:40 a.m. December 12 th indicates that Cst. Sallinen removed Mr. Ng from his cell for fingerprinting.

An entry for 2:04 a.m. indicates that Mr. Ng was back in his cell. Mr. Toews testified that prisoners are checked at least visually every 15 minutes by the jail guard on duty. No notations were made in the log book about Mr. Ng. for the rest of the night. [ 23 ] On December 12 th at 3:10 p.m., Cst. Shum, a Cantonese speaking RCMP Officer interviewed Mr. Ng, with I.O. Fan assisting.

Cst. Shum was aware that Mr. Ng had been arrested at 5:10 p.m. the previous day. He assumed that Mr. Ng had been given his Charter rights and warning on arrest, and had been provided an opportunity to contact counsel if he wished but intended to find out at the outset of the interview if Mr. Ng now wished to speak to counsel and if so, to provide that opportunity. [ 24 ] The interview was audio and video-recorded, and was played during the course of the voir dire. The interview was conducted in Cantonese, and an English transcript prepared and filed. The accuracy of the translation is admitted.

Words in English are marked with an “ * ”. [ 25 ] Cst. Shum commenced the interview by informing Mr. Ng of the reasons for his arrest and his right to counsel. (Tab 1 – Page 2 – Line 40 to 60) “ S: *Okay?* Then um, you were arrested by the Canadian police last night, right? So now, uh, the two counts that the police is charging you are- (Shuffling noise) S: -the first count is smuggling controlled substance, the second is possession of controlled substance for the purpose of trafficking. *Okay?* You are under arrest by the police because of these counts. Do you understand?

Like I’m not saying you are guilty, *okay?* Right now it’s because of these two counts that’s why you are here. Do you understand? WN: I understand. S: *Okay.* Also um, each Canadian, like, in Canada, everyone has his own right which is um, to get legal advice from his own lawyer or from legal aid. Did you have, like did the police give you this opportunity? Did, did the police ask you if you wanted to speak to a lawyer? WN: Yes. ET 00:04:11 S: Did you speak to a lawyer? WN: I didn’t. S: Do you want to now? WN: I want to now because I want to, for what reasons, because I know what you are talking to me now.

The second issue is I personally really want to talk through the lawyer, like I need, I need some medications.” . . . (Page 4 – Line 89 to 113) “S: No. *Okay.* I’ll find out for you now, *okay?” If you are, first of all, you said, you said you want to speak to a lawyer, right? WN: Yes. S: *Okay.* Do you have a lawyer of your own? WN: No. S: You don’t, do you want to- (Background noise) WN: Yesterday he said there are some- S: Legal aid. WN: -like legal, just like in Hong Kong- S: Right WN: -legal aid. S: Right. You want to speak with legal aid, is that right? WN: Yes. S: And you require Cantonese speaking?

WN: Cantonese speaking. S: *Okay.*

ET 00:05:45 WN: I’m not good in English. S: Alright, I’ll go down with you now. *Okay?* WN: Mm. S: And give you this opportunity- WN: Mm. S: -to speak with legal aid. Alright? WN: Mm. Because yesterday they asked me if I needed it I said no.” [ 26 ] Mr. Ng made a clear reference to Cst. Gu’s informing him of his right to counsel “ yesterday ” and the availability of legal aid “ just like in Hong Kong ”. He requested to speak to a Legal Aid lawyer. Cst. Shum testified that as he was taking Mr. Ng to the phone room so he could speak to counsel, a decision was made that Mr.

Ng should first appear in the Judicial Justice of the Peace room for a hearing. Mr. Ng had been in custody for close to 24 hours and had not yet been brought before a justice. Cst. Shum testified it was not his decision, and he could not recall who made it. The Judicial Justice of the Peace room is beside the phone room. [ 27 ] While Mr. Ng was in the JJP hearing room, Cst. Shum made arrangements for the medication Mr. Ng had mentioned to be brought to cells for him. Cst. Shum remained outside the JJP hearing room. [ 28 ] At approximately 3:35 p.m., the hearing was over and Mr. Ng was remanded. Mr. Ng told Cst.

Shum that he wished to speak to a Legal Aid lawyer who spoke Cantonese. Cst. Shum called Legal Aid and left a message. At 3:53 p.m., a Legal Aid lawyer called back with a Cantonese interpreter on the line. Cst. Shum believed he informed the lawyer of the charge, describing it as “ illegally importing an illegal substance ”. He transferred the call to Mr. Ng. Mr. Ng spoke on the phone in private until 4:00 p.m. When Mr. Ng hung up the phone, Cst. Shum asked him if he had spoken to a lawyer, and if he understood the legal advice provided. Mr. Ng said yes. He did not ask Mr.

Ng if he was satisfied with the legal advice provided. Mr. Ng. was then taken back to the interview room. The second interview commenced at 4:05 p.m. [ 29 ] Cst. Shum confirmed with Mr. Ng at the outset of the interview that he had spoken with Legal Aid and understood the advice given. He then reiterated in informal language Mr. Ng’s

Section 10(

a) and (

b) rights, and his right to silence. (Tab 2, Page 1 – Line 11 to 21) “S: So just now I’ve said to you in the beginning that you’re uh, (clears throat) like, it’s your, your right to speak with legal aid, *okay?* So now you’ve been given the right, you’ve spoken with legal aid. So also um, since last night when you were arrested by the police up till now, have you like, have you been uh, threatened by anybody or did anyone tell you that it’s better that you cooperate with the police so, so that it will be beneficial to you?

Like if this has ever happened, it’s not valid. *Okay?* You’re not, if you’re not willing, you don’t have to talk to anyone. If you want to talk, it’s totally your own choice. *Okay?* No one can threaten you and things like that, do you understand? WN: I understand.” [ 30 ] He also confirmed that Mr. Ng had taken his medication. [ 31 ] Mr. Ng expressed his opinion that he felt the whole matter was very simple and that Legal Aid had explained it to him. (Line 62 to 65). Mr.

Ng indicated within a few moments that he had understood the legal advice and intended to keep silent and not give a statement. (Line 88 to 92). He also confirmed that on December 11 th , 2012, he had declined to speak to a lawyer. (Line 113 to 114). There was a discussion about Mr. Ng’s past and current state of health, with Mr. Ng complaining about having had a stroke three years ago and needing medication. At Line 201, he stated: (Tab 2, Page 9, Line 201 to 202) “WN: That’s why now I, I want to get a lawyer now. Hey, It looks like I can’t go out and I need to take medication.

What if it suddenly bursts again?” [ 32 ] The seriousness of the charges against him were touched upon by I.O. Fan in an attempt to ascertain who else might be working behind the scenes on importing the Ketamine into Canada. (Tab 2, Page 11 – Line 251 to 252) “So when you go to court and the judge looks at it, such important drugs, in such big quantity, the consequence is very serious. Like for yourself, is it worth it, right? . . .”

[ 33 ] Mr. Ng responded by suggesting the police might have arrested the wrong people and reiterating the legal advice he had received that he shouldn’t give a statement. (Tab 2 – Page 12, Line 278 to 287) “WN; Well, Mr. SHUM, first, first of all let’s make it clear. F: Mm. WN: Given my situation now, have you arrested the wrong person? Like, I have only been listening to you the whole time. F: Mm. WN: He told me not to, not to, so have you arrested the wrong person? F: Mm. WN: And I, you said you’re charging me this, charging me that- F: Mm. WN: -I, I have not said anything.” [ 34 ] I.O.

Fan responded by again mentioning the seriousness of his situation (Tab 2, Page 13, Line 305 to 306), saying: (Tab 2 - Page 13 - Line 314 to 322) “F: In fact our view is, actually you’re doing this for the sake of this, I mean your, if it’s your boss, the big bosses, I’m not talking about those. Like, in your case, you’re not that, not that well off, to take such risks, how much money can you get by taking such risks? It’s not worth it, right? To us, in fact you’re also a victim. How much profits can you make?

If the judge rules that you’re guilty, the sentence being so heavy, you’re bearing it alone, why take on such stress? You’re a victim yourself. In fact sometimes because of money it really is- Making just a little but taking such risks, in fact you’re pretty pitiful too. Right, Mr. NG?” [ 35 ] Mr. Ng responded by repeatedly saying it’s useless to ask him questions, that it’s a waste of time, and that he doesn’t want to talk. He again referred to the legal advice he had been given to remain silent. (Tab 2, Page 15, Lines 369 to 371). [ 36 ] Cst. Shum and I.O. Fan then engaged Mr.

Ng in a discussion about his personal background and his relationship with the other persons arrested. In the video, the officers and Mr. Ng can all be seen sitting in relaxed postures in the interview room, and all laughing from time to time. The officers then returned to pressing Mr. Ng to give them some information. I.O. Fan repeated that they know this type of shipment cannot be planned and carried out in a day, that there must be others involved and referred to the judge hearing and evaluating Mr. Ng’s level of cooperation with police. Mr.

Ng asserted that he had “ said a lot ”, despite legal advice not to talk. (Tab 2 – Page 22 – Line 545 to Line 597 on Page 24) “F: I know, we know you have not seen anything. (Chuckles) Mr. NG, as I told you, seizing this shipment is not something done in a day. Like I, I can tell you frankly that- WN: Mm. F: -I don’t have to hide, I don’t need to hide- WN: Mm. F: When going to court, in court I’ll still tell the truth, just the same. I don’t have to hide things. So like, this is the chance for you- WN: Since- F: -to tell the information. To tell the truth.

ET: 00:26:29 WN: Since you’re clear about it, so, so it’s that simple, there’s no point for me to tell. S: Not so clear- WN: Nothing to tell. S: -we have to hear what you have to say, right? Very, like it’s very obvious, so many people have been arrested, we will be taking statements from everyone, right? Can you guess, your so called friend as you said, right? What do you, you think your friend would say about you?

WN: I don’t care what others say about me, S: Mm-hm. F: Exactly. WN: Like, as I’m sitting here, do I care what others say about me? F: That’s not the issue. WN: Huh? F: I think you have to understand what I have explained to you earlier that the judge will hear all these- (Background conversation – indiscernible) F: -to evaluate your, your level of co-operation and other stuff to make the judgment. And sometime if you’re being co-operative- WN: I have- F: -maybe it can help you. WN: -with both of you, like, being friends just known each other, I have casually chatted a lot. ET 00:27:26 F: Mm.

WN: All kinds of everything, right? I’ve also said a lot under your direction, right? F: Mm. WN: Have casually chatted about a lot of things. F: Mm. WN: Others told me not to talk. (Background noise) F: Mm. WN: Legal aid. In Cantonese saying it’s covering my mouth, asking me not to talk. Right? S: We really understand like- WN: So I have- S: -the advice provided by legal aid. WN: -as friends, like there’s no point for everyone to go in circles. S: No- WN: Whatever you asked me- S: So- WN: -I, I have said what I have to say, right?” [ 37 ] Mr.

Ng again indicated that he understood the legal advice not to give a statement and that he knew he was in serious jeopardy. (Tab 2, Page 25, Lines 610 to 615). [ 38 ] At a little over half an hour into the interview, Mr. Ng indicates that he has nothing else to say and that he knew he was in “ deep shit ”. (Tab 2 – Page 35 – Line 854 to 866) “WN: I’m so happy to have such a long casual chat with you guys as I’m very bored too. So like, that’s all I have to say for now. S: Mm. WN: If you ask me more, I’ll only, I’ll only ... nothing to say. If you are to chat casually with me about other things, I’ll be wasting

your time too, right? F: Mm, mm, mm. WN: You will not be talking about such things with me, right? Perhaps I’m interested to talk about, yeah, such things, don’t want to waste your time. So to talk about such like, irrelevant things, I don’t have anything to say. F: You have not said anything. WN: Mm. I realize I always say bad things about others, I talk a lot. They asked me not to talk but I still talk. They asked if I wanted legal I even said no. Now the more I think, the more I realize I’m in deep shit, from what you said.” (Tab 2 - Page 36 – Line 890 to 900) “WN: I’m really happy talking with you.

S: *Okay.* Go ahead. WN: I have finished talking. S: Mm? WN? I have finished talkling. S: Finished talking? WN: Yeah, you asked if I have things to tell you. S: Mm. WN: I’m really happy talking with you. S: *Okay.* Anything else you want to say? WN: No.” [ 39 ] Cst. Shum and I.O. Fan left the interview room for about 20 minutes. At about 5:00 p.m., Cst. Shum returned without I.O. Fan. Mr. Ng confirmed that he had nothing further to say and the interview concluded. The interview had lasted for one hour and 17 minutes. [ 40 ] Cst.

Gu was at the Detachment on December 12 th , 2010, assigned to do interviews of some of those arrested. [ 41 ] He interviewed a co-accused, Tak Ming Chan, and obtained a full confession of Mr. Chan’s involvement which implicated some of the others arrested, including Mr. Ng. [ 42 ] Cst. Gu was then assigned to interview Mr. Ng. Cst. Gu testified that he knew some things about Mr. Ng before commencing the interview on December 12 th , including that Mr. Chan had now implicated Mr. Ng. He believed Mr. Lai might have told him that Mr. Ng had had a stroke previously. Cst.

Gu testified that he went to cells and asked Mr. Ng if he was willing to provide a statement, to which Mr. Ng said yes, and that this was the only conversation before entering the interview room. In cross-examination, Cst. Gu testified that he asked Mr. Ng if he had spoken to a lawyer before he began the interview. This is contrary to Cst. Gu’s evidence in chief that there had been no conversation on the way to the interview room except for his asking if Mr. Ng was willing to provide a statement. [ 43 ] Cst. Gu did not ask Cst. Shum if Mr.

Ng had spoken to counsel before commencing his interview with him. [ 44 ] Cst. Au assisted. Cst. Au was brought up in the Philippines and also speaks Cantonese. [ 45 ] The interview commenced at 6:51 p.m. and concluded at about 9:00 p.m. As with the interviews conducted by Cst. Shum and I.O. Fan, the interview was video and audio-recorded. That recording was viewed by the court during the voir dire. [ 46 ] In cross-examination in relation to providing Mr. Ng with his Charter rights and the right to silence, Cst. Gu initially testified that he had read from his official card for that purpose.

When referred to Page 4, Line 96 following of the transcript of his interview, Cst. Gu then testified that he could not say for sure that he had read from his official card, and didn’t think that he had done so. When asked to compare those portions of the transcript of his interview with the official warning on his card, Cst. Gu agreed that they were not the same. (Tab 3 - Page 4 - Line 96 to Page 6 – Line 131) ” G: Mm. So um, now it’s, I think that uh earlier, the two police officers who talked to you earlier, have talked to you. Now I’m going to talk to you again. I have to tell you again about your rights.

Alright? Now you, I think you already know, but I still, still have to tell one more time. WN: Mm.

G: You are now under arrest by the po-police, being charged by the police because you have uh, imported those illegal drugs and you are in possession of those drugs to be used for the purpose of trafficking. Um, if before, if any other police officers, while they were talking to you, told you if you uh, uh, give a statement, what the police can do for you, and gave you an impression that like, the police, if you cooperate with the police, what favors the police can give you. All these, these are not valid. Do you understand? Do you understand” WN: I understand.

G: The police have to be fair in carrying out their work. WN: Mm. ET 00:05:09 G: Right? WN: Mm. G: So if someone tell you, tell me what happened, I’ll then help you. I’ll then help you so uh, you, you don’t have to go to jail. These things are not right. WN: Mm. G: Do you understand? WN: Mm. G: These are your rights. Whether you want to talk or not is up to you. Do you understand? WN: Mm. G: You understand, right?

If this has happened, this shouldn’t affect your own decision as to whether you want to talk or not. (Shuffling noise) G: When you talk to me, talk to me, it’s up to you to decide whether you want to talk or not. WN: Mm. G: But if you do talk to me, anything you say will be used, used as uh, evidence in court. Do you understand? WN: I understand.” [ 47 ] The interview continued with Cst. Gu, assisted by Cst. Au, attempting to persuade Mr. Ng to give them information about his involvement in the alleged criminal enterprise. Considerable time during the interview was spent on Mr.

Ng’s personal circumstances and background, including his family relationships, his business in Hong Kong, and his relationship with some of the co-accused. [ 48 ] There was considerable discussion between Cst. Gu and Au and Mr. Ng about the police officers’ ability to speak Cantonese, and Chinese dialects in general. It is apparent that Cst. Gu established considerable rapport with Mr. Ng during the course of the interview, and that Mr. Ng was comfortable with asking for clarifications whenever he wished about either language or concepts. There are multiple occasions during his interview with Cst. Gu when Mr.

Ng did so. Although Cst. Gu was self-deprecating about his ability to speak Cantonese at times during the interview, his comments were in relation to his accent and their extensive discussion of regional accents. (See for example Page 79, Line 2044 to Page 82, Line 2120). Although counsel for Mr. Ng made submissions linking that Cst. Gu’s facility in speaking Cantonese to breaches of Mr. Ng’s

Section 10 Charter rights and the voluntariness issue, I do not find it was a factor. [ 49 ] Some of the passages in the interview alleged to have infringed Mr. Ng’s

Section 10 Charter rights or said to raise a reasonable doubt about the voluntariness of his statement are attributable to Cst. Gu’s speaking style and to the interview having been conducted in a language other than English. The process of translation into English forms part of the context of a

Section 10 analysis and a voluntariness analysis. The assessment of factors relating to the voluntariness of a statement where the statement was given in a language other than English and where an English transcript was available was touched on in one of the authorities provided by counsel for Mr. Ng. [ 50 ] In R v. Zhang 2004 BCSC 826 , the accused Zhang was charged with being accessory after the fact to murder. The Crown’s theory was that Zhang’s cousin, LI, had murdered his girlfriend and subsequently told Zhang.

Zhang was thought to have then assisted Li to place her body in a suitcase and dispose of it in a wooded area. The body was discovered, and Li left Canada for China a few days after this discovery. Both Li and Zhang had been interviewed by the police before Li left. In a subsequent interview about a month later, Zhang confessed that his previous statements were not true, that he knew Li had killed her, that he had assisted in disposing of the body and that he had lied to police. After speaking with a Legal Aid lawyer, Zhang made several subsequent statements reiterating his confession.

He repeatedly asked for counsel. The police promised him leniency in return for his cooperation. Zhang alleged at trial that none of these statements were voluntary due to the inducements offered. He also alleged breaches of his

Section 10(

a) and (

b) Charter

rights. [ 51 ] A blended voir dire was held, during which Zhang testified and was cross-examined. Particularly relevant to the circumstances of this case are the comments of the Court at paragraph 22: “The first interview conducted in an RCMP interview room was recorded and video taped. It was conducted by a Mandarin speaking officer. I note that the fact the statement was in Mandarin adds some difficulty to the assessment of the various factors set out by the Supreme Court of Canada, but that fact does not make such an assessment impossible.

There is a translation of the transcript into the English language and, of course, the video was available to permit the court, with the assistance of counsel, to assess body language at relevant places.” [ 52 ] And at paragraph 64: “There was some discussion about whether the last four words were translated accurately, and it seems the word “accessory” is difficult to translate or interpret, but I accept that whatever were the exact words, the accused took it to mean that he would be charged with helping with the murder rather than helping after the murder.” [ 53 ] This is in reference to a statement made by the interviewing officer which was translated as: “ When we find out, knowing you didn’t tell us the truth, you will be charged by us, the police, for, well, accessory to a murder .” [ 54 ] The recognition in Zhang by the trial judge that an assessment of the factors relating to voluntariness may be made more difficult when the statement has been given in a language other than English is one that particularly resonates in this case.

It is also useful in considering alleged Charter breaches arising from statements given to police. All the statements given by Mr. Ng, including the statement that is the subject of this blended voir dire, were given in Cantonese, and the English translation of those statements need to be read with an awareness of the added difficulties in assessing them through that lens of translation. [ 55 ] Throughout the interview, Cst. Gu employed a rhetorical style of speaking, and spoke in half sentences. One such example starts at Page 52, Line 1340: “ G: Tell us, tell us, tell us, I won’t do anything to you.

These are all lies, lies. You, you know it too. Right?” [ 56 ] At first glance, this might seem like a direct repeated demand to confess, coupled with a reassurance that there would be no negative repercussions, immediately followed by an admission that what he’s just said is a lie or perhaps, what Mr. Ng has said are all lies. When read in context however, it is clear that Cst. Gu is imitating what he understands a police officer might say to a suspect in custody in Mainland China ( tell us, tell us, tell us, I won’t do anything to you ), and then inviting Mr.

Ng to agree with him that the officer would not be telling the truth. He is rhetorically comparing what he believed the situation in Mainland China would be for people in custody with the situation Mr. Ng is in in Canada, going on to say: “ It is different here. I give you all the rights here. Whether you want to tell or not, at the end of the day, it’s up to you. Like now, now if you still feel that I don’t to tell anything, fine, it’s up to you. I won’t force you. You have to tell, you have to talk or else I’ll beat you up, I won’t do such thing. I’ll leave it up to you.

If at the end you still don’t want to talk, fine, no problem, I’ll send you back. Really.” It should be noted that embedded in the above passage is another rhetorical statement ( You have to tell, you have to talk or else I’ll beat you up..) In isolation, this constitutes a clear threat. When read in context, it raises no concerns about threats or inducements by Cst. Gu in his attempts to obtain a statement from Mr. Ng because he was again using a common rhetorical device as part of his interviewing technique. The accuracy of his assertions about how things work in Mainland China was endorsed by Mr.

Ng, but whether accurate or not, they constituted neither a threat nor an inducement, did not add to, or create, an atmosphere of oppression and was not police trickery. [ 57 ] About 7 minutes into the interview, Cst. Gu informed Mr. Ng that he had been talking to Mr. Chan about the alleged criminal enterprise. (Page 7, Line 156 to 157 / Page 12, Line 297 to 301 / Page 14, Line 357 to 361 / Page 15, Line 364 to 365 and Line 318 to Page 16 - Line 394, Line 408 to 413). Cst. Gu repeated some of what Mr. Chan told him, and invited Mr. Ng to comment. [ 58 ] At about 21 minutes into the interview, Cst. Gu asked if Mr.

Ng would like to look at the Chan interview video, saying that he is not lying to Mr. Ng about what Mr. Chan told him. (Page 17, Line 434 to 436). Cst. Gu continued to refer to what Mr. Chan had said about Mr. Ng’s alleged involvement. (Page 18, Line 461 to Page 19, Line 469). About 35 minutes into the interview, Cst. Gu informed Mr. Ng that Mr. Chan stated that he had gone to India to work on the container and load it with “K powder”. (Page 26, Line 661 to 669). Cst. Gu again offered to show the video to Mr. Ng. Mr. Ng responded that there was no need to see it, because he believed what Cst. Gu was telling him.

The partial video of the Chan interview was not played for Mr. Ng until about an hour later into the interview. The Ng interview transcript includes a translation of the questions and answers during that portion of the Chan interview, which was also conducted in Cantonese by Cst. Gu. The Chan interview excerpts are shown in brackets. In the video recording of Mr. Ng’s interview, the video recording of the Chan interview can be heard and seen playing on a screen on the desk where Mr. Ng was seated. [ 59 ] That portion of the Chan interview played for Mr. Ng contains Mr. Chan’s implication of Mr.

Ng in the criminal enterprise. As the partial Chan interview was played, Cst. Gu interjected from time to time, asking Mr. Ng questions and seeking his response to what Mr. Chan was saying on the video. Mr. Ng resisted watching the Chan interview, repeatedly stating there was no need to watch it, and that he believed Cst. Gu when Cst. Gu had informed him that Mr. Chan had implicated him. [ 60 ] Mr. Chan stated repeatedly that Mr. Ng asked him to arrange the transportation for the Ketamine to enter Canada. (Tab 3 – Page 97 – Line 2506 to 2515)

“G: (Recording: Uh, what is your partner name? KWOK, KWOK, Yiu Tim? ...) C: (Recording: NG Wing Kee.) G: (Recording: Oh, NG Wing Kee. Mr. NG. Oh, I see. It was him who asked you to look for the *K* powder outside?) ET 01:45:22 C: (Recording: No.) G: (Recording: No?) C: (Recording: Asked me to transport it.) G: (Recording: Oh, asked you to transport it. Oh.) C: (Recording: To transport)” [ 61 ] Mr. Chan then went on to describe in detail how the alleged criminal enterprise was organized. As the Chan interview continued to be played, Cst. Gu asked Mr. Ng whether he thought Mr.

Chan was lying about his involvement, or whether he was telling the truth. Mr. Ng answered that Mr. Chan was telling the truth, and that he knew he was on camera when agreeing Mr. Chan was telling the truth. (Tab 3 – Page 102 – Line 2642 to 2693 on Page 104) “G: Do you think Mr. CHAN- G: (Recording: So you can tell me why Mr. NG came to you?) G: -is putting you on the spot? (Tapping sound) G: He is talking nonsense, putting you on the spot. C: (Recording: Because I know how to do the transportation job.) G: (Recording: Oh, you know how to do transportation.) WN: I already said I’m not angry with him.

C: (Recording: Because I was in the garment industry, had to buy goods from other countries ... ) WN: Already not angry, we’re already been over twenty years. He can say whatever he likes to say. I’m not angry with him, it’s been over twenty years already. G: I’m saying, what I’m asking you is- WN: Mm. G: -is he talking nonsense or- G: (Recording: ... He asked you to help him ...) G: -or is he telling the truth? ET 01:51:26 G: (Recording: -how much did he say he would pay you?) WN: You used these two words, talking nonsense and telling the truth, right? C: (Recording: Because I’ve known this Mr.

NG for a long time, he said for sure he would not be stingy to me.) WN: He is telling the truth. (Tapping sound) G: Is he telling lies or telling- WN: The truth.

C: (Recording: ... dared not promise how much money I would get but the amount for sure would not be small.) G: He is telling the truth. WN: Yes. Well, I’m saying this in front of the camera. G: (Recording: For sure it would not be small. So you, you, you, that is to say, you believed him.) WN: Mr. CHAN is telling the truth. G: (Recording: You believed, you believed, believed him?) C: (Recording: I believe in this person. His character is worth my trust.) G: So he, he, what he said, what he said about you is all true?

G: (Recording: If in the case ...) WN: Like, it’s just like right now I’m saying he is telling the truth so I, I just tell you. G: (Recording: ... the police did not find out, you believe, you believe that he would give this amount of money?) G: (Sighs) C: (Recording: I believe.) ET 01:52:05 WN: What’s up? Why do you sigh? G: (Recording: ... how long have your known Mr. NG?) C: (Recording: Almost twenty years.) G: Why don’t you, why don’t, don’t you tell me yourself? C: (Recording: What is his line of work?) G: You’re, you’re saying that what he said is true?

G: (Recording: He’s in those, gar-) WN: Mm.” [ 62 ] Cst. Gu then attempted to have Mr. Ng reveal more about the alleged criminal enterprise and his involvement. Mr. Ng spoke about health issues involving himself and Mr. Chan, but not about his own involvement. The Chan interview continued to play in the background as Cst. Gu continued to question Mr. Ng. Cst. Gu then asked Mr. Ng if he wished to continue to watch the entire Chan interview to the end. Mr. Ng responded that it wasn’t necessary, saying: (Line 2946 to 2947): “ It’s not necessary. It’s just the same even if you don’t let me listen to it.

You’re telling me this, like to prove what he has said, so I ... Right ?” [ 63 ] Cst. Gu continued questioning Mr. Ng and attempting to have him respond to what Mr. Chan was saying on the video. (Tab 3 – Page 117 - Line 3036 – Line 3092 on Page 119) “WN: It makes no difference to me listening to this. My brain needs to think. A: Those money, where did you get it from? G: Who gave you the money? (Pause) (No Conversation) G: Well? WN: I can’t answer you now. G: (Sighs) WN: Don’t sigh. I really can’t answer you now. G: I, I, I’m not, not angry with you. If you, you-

WN: You can be angry with me, you can be angry with me. G: I’m not angry with you. I- WN: Well, he has said so much, you can be angry with me. G: I’m, I’m not angry with you at all. This is you, this is your own de-, it’s your decision, not up to me, up to me to decide for you. Do you understand? You, you make your own decision, I ... WN: Because actually I’m unable to make any decision. I’ve already told you what condition I am in right now, how I am feeling tonight. G: Let me tell you this. WN: Yeah. ET 02:07:12 G: Um, if you don’t don’t intend to answer my questions today, no problem.

Tomorrow you will see the judge. These things, no problem. Uh, anything is, anything is possible tomorrow. Maybe you’ll have more jail time, or maybe the judge may say, maybe what you have said is true. Any-anything is possible. Do you understand? Maybe he will say, uh, just let you go. You said you are not related to this case then you are not related, you can leave. But ask, ask, ask, ask yourself, do you feel comfortable? WN: There’s nothing about feeling comfortable or not. In fact ... how can one feel com-com-comfortable here? Of course it’s not comfortable.

G: So you, you, you, you- WN: How can it be comfortable here? G: ... WN: I’m not saying that you’re not treating me well, not anything like this. It’s that the environment is totally ... G: Right now definitely it’s not comfortable. WN: Yeah, right now definitely it’s not comfortable. G: Right now definitely, it’s not comfortable- WN: Don’t even need to mention this. G: -for sure you don’t feel comfortable- WN: Yeah. G: -but after you go outside, after you go outside, how do you, how do you go out? In here, you can still, you can still feel comfortable or uncomfortable.

You, you don’t want to say it, but just wait and see. I, I won’t lie to you. You yourself can feel if it’s right in here or not. (Pounding sound) ET 02:08:38 G: Just wait and see for yourself. I won’t, I won’t force you. You- (Pounding sound) G: -I, to be honest, to be honest with you, now I’ve shown you what Mr. CHAN has said, and right now you still don’t intend to answer my questions. No problem. I won’t , won’t waste your sleeping time. I can send you down. WN: You already said I can’t fall asleep. G: Really. WN: Yeah. (Pause)” [ 64 ] The interview was concluded just before 9:00 p.m. and Mr.

Ng was returned to cells.

[ 65 ] The accused must show on a balance of probabilities that his

Section 10(

a) and (

b) Charter rights were infringed. He has failed to do so. [ 66 ] Mr. Ng was informed promptly of the reason for his arrest and his right to counsel by Cst. Ellenberger at the scene. As soon as Cst. Ellenberger had reason to believe he did not understand English, he told Mr. Ng that a Cantonese speaking officer would be available at the detachment for him. There can be no breach based solely on the inability of an arresting officer to immediately provide Charter rights and warnings at the arrest scene to a suspect who does not speak English in that suspect’s mother tongue. Mr.

Ng was able to speak enough English to convey that the handcuffs were bothering him, that he was from Hong Kong, etc., so there was a degree of communication. The delay in leaving for the detachment was caused by the unusual number of suspects who were being arrested, and the officers’ need to clear the scene. At the detachment, arrangements had been made to have Cantonese speaking officers available to process the seven persons arrested, and to provide them with their Charter rights. This process had begun even before Mr. Ng arrived there. There was no singling out of Mr.

Ng or any of the persons arrested as to who would be chartered and warned first, or last. Mr. Ng happened to be the last to be chartered and warned in Cantonese. He was chartered and warned in Cantonese within about 40 minutes of his arrival. There was no violation of his rights arising from the language Cst. Gu used to charter and warn him. The information provided by Cst. Gu about Mr. Ng’s rights satisfies

Section 10(

a) and (

b) of the Charter . Mr. Ng has failed to show there was any violation of

Section 10(

a) or (

b) attributable to Cst. Gu on December 11 th . [ 67 ] At about 6:43 p.m., Mr. Ng told Cst. Gu that he wished to speak to counsel. At about 7:36 p.m., after being chartered and warned again, Mr. Ng told Cst. Sallinen that he didn’t wish to speak to counsel. Cst. Jang had been assigned to take anyone wishing to speak to counsel to the telephone room so they could speak to counsel in private. All the others had wished to speak to counsel and had done so. He dealt with Mr. Ng sometime after 8:38 p.m. Mr. Ng declined to speak to counsel.

There is no evidence that he could have spoken to counsel earlier than that unless Cst. Jang had happened to deal with the persons arrested in a different order than he did that night. Cst. Jang assisted each of the arrestees, in no particular order, exercise their right to counsel. There was only one private telephone room in the detachment and the six others involved in this investigation had all availed themselves of that opportunity. All of them needed a Cantonese interpreter. [ 68 ] Mr. Ng has failed to show that there was a violation of

Section 10(

b) on December 11 th in relation to his opportunity to speak to counsel in private with a Cantonese interpreter being delayed for 43 minutes under these circumstances. [ 69 ] The next day, Cst. Shum immediately canvassed this with Mr. Ng after chartering him at the beginning of the interview at about 3:10 p.m. He immediately ended the interview and took him to the private phone room so he could exercise his right to counsel. Mr. Ng did so with a Cantonese interpreter after appearing before a Judicial Justice of the Peace and being remanded. That he was taken to that appearance before speaking to counsel does not amount to a violation of

Section 10(

b) under these circumstances. He had declined to speak to counsel, once with Cst. Jang and twice with Cst. Sallinen the night before, and there was no reason to anticipate his change of mind. The Criminal Code required him to be taken before a Justice within 24 hours and it was close to the deadline for that appearance. Putting him in the telephone room first might have required his speaking to counsel to be interrupted by the necessity of his being brought before a Justice, which would have interfered with or even undermined his ability to obtain legal advice. There was no violation of his

Section 10(

b) rights under the circumstances. [ 70 ] A violation of

Section 10(

b) is alleged to have occurred when Cst. Gu made disparaging remarks about lawyers. After considerable congenial conversation about the differences of life in Canada vs. Mainland China, Mr. Ng acknowledged that he understood that it is Cst. Gu’s job to ask him questions (Page 49, Line 1271) and again referred to the legal advice he received from Legal Aid to keep silent. Cst. Gu then made the comments that counsel for Mr. Ng alleges violate

Section 10(b). (Page 50, Line 1281 through to Page 52, Line 1349) “WN: I’ll also tell you what it is. Your legal aid told me- G: Mm-hm. (Light tapping sound) WN: -whatever, whatever. ET 00:58:33 G: Don’t say anything. WN: Right? G: I, I know he, he’ll definitely teach you this. WN: That’s right. G: I know. WN: But did I not tell you anything? G: Mm. Yeah. WN: What do you think? G: I know they would definitely say don’t say anything. They don’t care. They’ll definitely say don’t say anything. But actually it’s not necessarily useful not to say anything every time.

WN: Mm. G: Sometimes, sometimes if you don’t say anything, you’re, you’re, you’re hurting yourself. It’s not, it’s not- Um, their, their suggestion to you not to say anything is in fact hurting yourself. WN: Mm. G: But they don’t care. Every time they, everyone, you can ask him, everyone who came in, got arrested, talked with the legal, legal aid lawyers, they told everyone the same thing. A: Uh, every time it’s ... WN: Mm. G: Don’t say anything. It’s the same thing every time, don’t say anything. WN: Mm. ET 00:59:26 G: Actually not to say anything every- Does it work every time? It’s not the case.

Some-Sometimes, if you don’t say anything, actually it’s not good for yourself. WN: Mm. G: Seriously. WN: Mm. G: Sometimes not to say anything- WN: Mm. G: -maybe it’s right, but it doesn’t mean it’s right every time. WN: Mm. G: I’m really not lying to you. WN: Yeah, nothing is absolute. G: Right? WN: This I understand- G: So- WN: -because I’ve lived to this age. G: Right? WN: I know too. G: You should also know about this, right? WN: Yeah. G: Right? Because, because they are lawyers, they don’t care. They really don’t care. It’s not their concern. Do you understand? Right?

It is different here from Mainland China, leniency for frank confession, harsh penalty for defiance. Do you, do you still remember uh- ET 01:00:07 WN: Uh, things in Mainland China- G: Don’t believe in such things in Mainland China, Mainland China. WN: Mm. G: Because they’re lying to you. WN: Mm. G: Tell us, tell us, tell us, I won’t do anything to you. These are all lies. You, you know it too. Right? WN: Mm.

G: It is different here. I give you all the rights here. Whether you want to tell or not, at the end of the day, it’s up to you. Likenow, now if you still feel that I don’t to tell anything, fine, it’s up to you. I won’t force you. You have to tell, you have to talkor else I’ll beat you up, I won’t do such thing. I’ll leave it up to you. If at the end you still don’t want to talk, fine, noproblem, I’ll send you back. Really. But you think, think, think it over yourself. You think it over carefully, whether you talk ornot, you think it over yourself. Right?” [71] Counsel for Mr. Ng submits that Cst.

Gu was denigrating lawyers and attempting to undermine Mr. Ng’s confidence in the legaladvice he had received. He cites R v. Burlingham (SCC), [1995] 2 S.C.R. 206. In that case, an accused had beencharged with a murder and was a suspect in a second murder. After intensive and often manipulative interrogation by police, whichincluded denigration of the integrity of his counsel, suggesting that he was only interested in his legal fees, and that he couldn’t bebothered to look after his client over the weekend, the accused was offered a deal by police.

The deal was that he would be charged withsecond degree murder if he provided them with the location of the gun and other information. The accused refused to accept the dealunless he could speak to his counsel, who was unavailable for the weekend. The police insisted that the deal was only open over theweekend. The accused repeatedly asked to speak to counsel and was eventually able to speak to a different lawyer, who advised himagainst it. The accused took the deal: fully confessing, taking them to the locale of the murder, and providing information of the locationof the murder weapon.

It turned out that there was no deal as the accused understood it. [72] At trial, his

Section 10(

b) Charter right was found to have been breached. His confession, his disclosure of the weaponslocation and other disclosures to police were held to be involuntary and inadmissible. The trial judge did admit the fact that the gun wasfound, the gun itself, and certain testimony of witnesses. The accused was convicted, and the conviction affirmed by the Court ofAppeal. [73] On appeal to the Supreme Court of Canada, the issue was whether the accused’s right to counsel under

Section 10(

b) had beendenied, and if so, what the just and appropriate remedy under Section 24(2) of the Charter should be. At paragraph 13ff., the courtreaffirmed its earlier decision in R v. Prosper (SCC), [1994] 3 S.C.R. 236 that the police should refrain from attemptingto elicit incriminatory evidence once a detainee had asserted his or her right to counsel, unless there were urgent circumstances to thecontrary. [74] In relation to the denigration of his counsel, the court stated: “Second,

Section 10(

b) specifically prohibits the police, as they did in this case, from belittling an accused’s lawyer with the expressgoal or effect of undermining the accused’s confidence in and relationship with defence counsel. It makes no sense for

Section 10(

b) of the Charter to provide for the right and instruct counsel if law enforcement authorities are able toundermine either an accused’s confidence in his or her lawyer or the solicitor/client relationship.” [75] The Court found that

Section 10(

b) had been violated by the circumstances surrounding the plea bargain, the denigration of hiscounsel and the failure of the police to cease questioning the accused after he requested to speak to counsel. The appeal was allowed anda new trial ordered. [76] The facts in Burlingham are very different from the facts herein. Cst. Gu’s remarks at Page 52 of the transcript must be read incontext. That context includes his remarks set out on Page 50. Reviewing all of Cst. Gu’s comments in context indicates that Cst. Guwas attempting to convey to Mr.

Ng that regardless of the circumstances and regardless of the charge, in his opinion, lawyers alwaysadvise persons in custody to remain silent, but it is always up to the person in custody to decide for themselves whether or not they wishto remain silent. Cst. Gu did not say that lawyers don’t care about their clients, or that the Legal Aid lawyer didn’t care about Mr. Ng. Cst. Gu was telling Mr. Ng that lawyers, in his opinion, don’t care about the nature of the charge because their advice was always thesame---remain silent. This is also the context of Cst.

Gu’s remarks about the differences between Canada and Mainland China, whereconcessions are concerned. (See Page 44, Line 1121 following, Page 52, Line 1331 to 1349). They are not a denigration of the LegalAid lawyer who had given legal advice to Mr. Ng over the telephone, or of lawyers in general. [77] There was no violation of

Section 10(

b) by reason of these comments by Cst. Gu. [78] The above excerpt from Page 50 to Page 52 is also said to render Mr. Ng’s statement involuntary. Imbedded in the impugnedcomments by Cst. Gu is a comment that counsel for Mr. Ng submits is not only a misrepresentation of the legal system in Canada, butalso an inducement to confess. (“It is different here from Mainland China, leniency for frank confession, harsh penalty for defiance”). [79] The governing principles on the issue of the voluntariness of a statement are summarized in R v.

Yoon 2012 BCSC 580. “158 The determination of the voluntariness of a statement is a question of fact, informed by the context and totality of thecircumstances of the case, to be decided within the established legal parameters. 159 As noted earlier, the leading authority on the contemporary confession rule is Oickle. The rule has evolved from its narrowerform in Ibrahim v. The King, [1914] A.C. 599, of excluding only statements where the police held out explicit threats or promises to theaccused. In R. v.

Hebert, (SCC), [1990] 2 S.C.R. 151, the Supreme Court of Canada recognized that voluntariness wasbroader than the absence of violence, threats, and promises by the authorities, and included the necessary mental element of the suspectdeciding between alternatives with an operating mind not unduly influenced by oppressive circumstances that could overbear his or herwill.

Both Hebert and Oickle acknowledge that the considerations of police trickery or deceit can result in a ruling that a confession isnot voluntary without necessarily relating the trickery to concerns about reliability or oppression, but simply on the basis that thetrickery or deceit is so unfair as to shock the community: see R. v. Miller, 2006 BCSC 318, at para. 49.

160 In Oickle at paras. 57 to 58, Mr. Justice lacobucci, writing for the majority, summarized the principles addressing inducements and oppression, two of the factors considered in the determination of voluntariness, in the following manner: 57 In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App.

R. 207 (C.A.) , at p. 212, particularly apt: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated.

If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.

The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. [Subheading removed.] 58 There was much debate among the parties, interveners, and courts below over the relevance of "oppression" to the confessions rule. Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions.

Alternately, oppressive circumstances could overbear the suspect's will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession. 161 More recently, in R. v. Singh , 2007 SCC 48 , the Supreme Court of Canada determined that the voluntariness analysis subsumes the constitutional right to silence protected by s. 7 of the Charter .

Singh , at paras. 44 to 46 , recognized that while the right to silence was a critical component within the confessions rule, the competing societal interest in the investigation of crime required a careful balancing between the individual and societal interests engaged. 162 The right to silence does not mean the person has the right not to be spoken to by the police: Singh at para. 28 . Thus, there is no rule prohibiting the police from questioning an accused after he has received advice from counsel and indicated he does not wish to speak to the police in an interview.

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, and so in the face of assertions by a suspect that they do not wish to speak, the police are not required to stop the interview immediately: Singh , at para. 46 . 163 Legitimate means of persuasion are permitted which thus recognize the critical balance that must be maintained between individual and societal interests.

However, as Madam Justice Charron, writing for the majority in Singh , notes at para. 47 : ... the law as it stands does not permit the police to ignore the detainee's freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities.

As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct. 164 In R. v. Sinclair , 2010 SCC 35 , at para. 60 , and R. v. McCrimmon , 2010 SCC 36 , at para. 26 , the Supreme Court of Canada reaffirmed that the continuation of an interview in the face of the detainee's repeated expression of a desire for the interview to end and to speak with counsel may raise a reasonable doubt as to the voluntariness of any subsequently given statement. 165 In R. v.

Kembo , 2009 BCSC 1879 , Madam Justice Stromberg-Stein provided a most comprehensive

summary of the modern day confession rule, at paras. 23 to 29. She concludes with the following at para. 30: [30] In

summary, the right of the detained person is to make a meaningful choice whether or not to speak to state authorities. A contextual analysis of all relevant factors must be considered. Circumstances that vitiate the voluntariness of a confession include threats or promises, oppression and an operating mind. The use of police trickery to obtain a confession that would shock the community is a distinct inquiry aimed at maintaining the integrity of the criminal justice system, and the right to silence is relevant as a facet of this inquiry. Oppression and inducements are primarily concerned with reliability.

The operating mind doctrine focuses on protecting the accused person's rights and fairness in the criminal process. Police trickery and breach of the right to silence focuses on the conduct of the police as it may affect an accused person's ability to exercise his or her free will. In that regard, the test is objective; however, individual characteristics of the accused person are relevant in considering and applying this objective test.” [ 80 ] Counsel for Mr.

Ng and the Crown have provided the authorities referred to above (as well as others), all of which I have read in considering their submissions on the facts and the law in this voir dire. The

summary in Yoon is included in these Reasons as a brief and useful re-statement of Oickle , et al. [ 81 ] I do not find that Cst. Gu’s comment can be, or was, understood to be a statement that in Canada there is leniency for frank confessions and there are harsh penalties for those who do not confess. It is the opposite. It is couched in the same style as many of the interchanges between Cst. Gu and Mr. Ng which do not translate well. Much of the interview was spent on comparing life and the law in

Mainland China unfavourably with life and the law in Canada, and this is simply one more instance when Cst. Gu was highlighting that fact with reference to Mr. Ng having the choice about whether to make a statement or not without fear of the consequences. Mr. Ng fully understood his right to remain silent. He himself referred repeatedly to having been informed of his rights, and being advised by the Legal Aid lawyer to remain silent. [ 82 ] At one point in the later stages of the interview, Mr. Ng commented that he was feeling nervous and pressured.

When considered in context, including his body language and posture, it was his being implicated by Mr. Chan that was causing him to feel that way, not the interview process by Cst. Gu or any impermissibly oppressive atmosphere or question that would render his statement involuntary. Mr. Ng told Cst. Gu that he enjoyed speaking to him and the other officers, that they were very nice to him, and that he was being treated with respect.

He made jokes, steered the conversation to some degree to topics that he felt were unrelated to the reasons he was in custody, expressed his surprise and appreciation for receiving his medication promptly, and for the general atmosphere of the interviews. [ 83 ] I have considered the factors by which the voluntariness of a statement is to be determined set out in R. v. Oickle 2000 SCC 38 and find that there was no oppression, that Mr. Ng had an operating mind throughout, and that the interviewing techniques used by Cst. Gu, including appeals to Mr.

Ng’s conscience, did not amount to police trickery of a kind that undermined the voluntariness of Mr. Ng’s statement. [ 84 ] However, there were clear inducements made by Cst. Gu that raise a reasonable doubt as to the voluntariness of the statement. [ 85 ] At Page 24, Line 613, to Page 25, Line 626, Cst. Gu suggested to Mr. Ng that the charges against him can be changed if he cooperates. (Page 24 – Line 613 to Page 25 – Line 626) “G: No. Actually you- WN: Like- G: -actually you, but- (Tapping sound) G: -but if, these, these, these *charge*s can be changed- WN: *Charge*-ing me for so many things.

G: -can be, can be changed. WN: Huh? G: Do you understand? WN: Mm. G: Not really a lot, just these two counts. But if you don’t, if you cooperate with us so that we, we can find out the truth now, then something can be changed. Do you understand? Do you understand? If you don’t tell then these things won’t change. What are the advantages?” [ 86 ] This is a classic inducement: a promise that if he co-operates by providing a statement, the charges can be changed and if he doesn’t, they won’t be. [ 87 ] At Page 27, Line 682 to 688, Cst. Gu made it clear that if Mr.

Ng remains silent, and does not co-operate by giving a statement, the charges against him will not be lessened. (Page 27 – Line 682 to 688) “G: -working for other people to make some money. If you think that by not saying anything, your, your, your charge can be, can be a lesser, lesser one, this is not, really not true. If you tell us- (Banging sound) G: -what exactly you know, what happened, maybe it can help yourself. Do you understand? Think about it and look at yourself, you are not in good health. If you go to jail, do you think going to jail is fun?” [ 88 ] At Page 29, Line 742, to Line 748, Cst.

Gu went beyond telling Mr. Ng that the charges might “ change ” and that he can help himself if he co-operates. He linked Mr. Ng’s ability to help himself with Mr. Ng speaking to a judge. (Page 29, Line 742 to 748) “G: I think you don’t know what to do now.

WN: Maybe, maybe. Also not much can be done either, right? G: Let me tell you now, tell you what you should do. Now who can help you is your-yourself. Did you see the jud-uh, the judge earlier? Did you talk with the judge on the phone? WN: Uh, actually yesterday I was asked if I need legal aid or lawyers etc. G: Not lawyers. I, I’m talking about the judge.” [ 89 ] Cst Gu returned to the theme of judges later at Page 88, Line 2277 following. Cst. Gu and Mr. Ng discussed his appearance before the Judicial Justice of the Peace and that he had been remanded to the next day. Cst. Gu then suggested that if Mr.

Ng didn’t “ explain clearly ”, it might affect the judge’s decisions. Although his comments were entwined with comments relating to a bail hearing, Cst. Gu introduced the idea that his sentence might be different depending on whether or not Mr. Ng gave a statement. (Page 90, Line 2313 to Page 93, Line 2403) “G: There are several possibilities meeting with the lawyer tomorrow. WN: Mm. ET 01:33:27 G: A big possibility is that now you, I’m not scaring you, I’m not scaring you. WN: No. Tell me. G: -Now you, you- Now you, you because- WN: Mm. G: -you’re not a Canadian citizen- WN: Mm.

G: -you’re also not a Canadian resident. WN: Mm. G: I think there’s very little chance that the court- WN: Mm. G: -will let you go. Won’t, won’t let you go, instead will put, put, put, put you in jail longer. But if you, I, this of course I can’t say for sure- WN: So- G: -will happen- WN: Mm. G: -but, but if you can explain clearly how you are related to this, this matter- WN: Mm. ET 01:34:04 G: -this relation, see how deeply you’re involved. Like, like Mr. CHAN, right now what he has said, do I believe him? I think it’s believable. It’s believable. What he said is really believable.

So if the judge thinks that if you, actually your, your involvement in this, this case is not, not very deep, then the chance maybe higher that he would let you go or give a very light sen- sentence. There is such a possibility if you, you explain everything clearly. But if you don’t explain clearly, if, if we or the uh, prosecutor, he thinks that you’re not okay, there are still many questions about you, you still have, you, if they feel that you- WN: I can explain to the lawyer clearly tomorrow, explain to your judge clearly. G: Do you, do you think your lawyer can help, can explain clearly to the judge?

WN: He knows the law. I trust lawyers, in the whole world, I have lived in Hong Kong for many years- G: Mm-hm. WN: -I trust lawyers. G: Mm-hm.

WN: Everything has to be signed by him- G: Mm. WN: -in order to be considered proper. G: But, but you, you- WN: Right? G: -but how do you see- WN: Not that I don’t trust you guys the cops. Not that I don’t trust you. (Clattering noise) WN: Not that I’m not whatever with you- G: You, you, you have to remember. There’s one thing I, I have to remind you. WN: Mm. ET 01:35:25 G: It’s that tomorrow is not just you and your lawyer meeting the judge, there will also be our, our pro-pro-prosecutor- WN: Mm. G: -will also be meeting the judge. He also has to tell the judge.

Your lawyer has to convince him what happened to you, you. The, our, our police and the pro-prosecutor also have to let the judge know, tell him- WN: Mm. G: -what happened. Do you understand? The judge may believe us more, maybe believe, believe your lawyer more, it’s- WN: There’s one more thing- G: -right? WN: -like yesterday, when I was arrested- G: Mm. WN: -when I was arrested by your colleagues- (Pounding sound) WN: -that was what happened. You asked me what have I seen, what I saw, what have I done. I just did those things. I just saw those things. G: Mm-hm. WN: I was just like that, doing those things.

G: I, I, I never said this is not true. I never said that. WN: Right? ET 01:36:21 G: I, I didn’t say this is not true. WN: So I am here till now since last night after I came in. G: But this, this, this matter, this, this matter- (Pounding sound) G: -it’s not just those things of last night, right? There’s something else, right? So if, if you feel that you still don’t want to talk to me, or you still don’t want to tell me what actually happened, fine, no problem. I’ll send you down and let you go on with your sleep. But I guess you won’t be able to sleep.

To be honest, I don’t think you’ll be able to sleep, is that right? WN: Mm. That’s right. G: Is that right?

WN: Mm. That’s right. G: Is that- WN: That’s why I’m very tired. G: Right. WN: Yeah. G You, you yourself ... Why don’t you tell us? You’re, you’re, you’re still guessing this, this time, I’ll take my chance one more time.” [ 90 ] The entirety of the circumstances surrounding the statement indicate that Mr. Ng had received legal advice, was aware of his right to remain silent, had exercised that right at times he felt it necessary to do so, while at other times speaking freely, had an operating mind and was aware of the consequences of his speaking to authorities.

There was no evidence, and none of the circumstances can support, a suggestion that Mr. Ng’s will was overborne at any point. There was no oppression, with Mr. Ng even taking charge of the direction of the interview from time to time. [ 91 ] However, none of this can erase the reasonable doubt created by the inducements offered by Cst. Gu that if he co-operated, Mr. Ng’s charges might be changed or lessened, (something within the power of the police) and by his suggestion that giving a statement might affect the outcome either of a bail hearing or of a trial.

Although the latter is a speculative suggestion in that Cst. Gu or the police could not, in fact, affect the outcomes of either a bail hearing or a trial, this kind of suggestion is the classic hope of advantage identified as such in Oickle . Something similar occurred in R. v. Wang , Vancouver Registry, Oct. 25, 2004, Docket: 22744. [ 92 ] The accused was charged with attempted murder. The police obtained a statement identifying the accused as the murderer from his brother, who had also been arrested. They showed a portion of the statement to the accused, and the accused then gave an exculpatory statement.

It was suggested by police that if the accused showed remorse, the courts might be lenient. [ 93 ] At paragraph 44, Mr. Justice Groberman as he then was, stated: “ I doubt whether any of these various statements by the police in the course of interrogation occurring alone would have been sufficient to cast doubt on the voluntariness of the statement. I have concluded, however, that in combination they do cast doubt on the voluntariness of Howard Wang’s statement and it must be excluded.

The questioning was designed to leave Howard Wang with the impression that if he did not give a full statement to the police, then any mitigating factors would not be before the court. While not put into these words, the police effectively told him that his only real opportunity to reduce his eventual sentence was by giving a statement. This threat or hope as advantage fits into the classic Ibrahim test and also the modified version of Ibrahim adopted by the Supreme Court of Canada in Oickle .” [ 94 ] This is what occurred here. Cst. Gu effectively told Mr.

Ng that his only real opportunity to reduce his sentence was by giving a statement. [ 95 ] In Zhang , similar suggestions about leniency from the court were made: “45. Zhang continued to seek legal advice from the constable, particularly about what punishment he might be subject to. He was told, and I quote two lines: “But now you cooperated with us and told us everything.

So when you go to court, of course, it will be beneficial to yourself.” A moment or so later, the constable said, “I will try my best to ask for leniency for you from the judge in court,” and again, shortly thereafter, “Because you cooperated with me, being cooperative.” [ 96 ] The court cited Oickle at paragraph 49 , paragraph 68: “68.

In Oickle at paragraph 49 , Iacobucci J., speaking for the majority, wrote that for a person in authority to suggest to the suspect that he will take steps to procure a reduced sentence if the suspect confesses is a classic hope of advantage, which would raise a reasonable doubt as to the voluntariness of “any ensuing confession”.” [ 97 ] The Crown must prove beyond a reasonable doubt that Mr. Ng’s statement was voluntary. The Crown has failed to discharge that burden. The offers of leniency from the court and lessening the charges raise a reasonable doubt that the statement was voluntary. [ 98 ] In

summary, I find that there were no breaches of

Section 10(

a) or (b). I find that Mr. Ng’s statement to Cst. Gu on Dec. 12 th , 2010 was involuntary and is not admissible

_________________________ E. J. McKINNON, P.C.J. CORRIGENDUM – Released July 12,

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