International Law

R. v. Nguyen

While investigating a basement grow-op, a police officer saw a van driven by the appellant enter the driveway.

The appellant, a Vietnamese immigrant, briefly stopped his van and then began to leave the driveway in reverse. The officer was wearing a vest with the word ?Police? in large white letters. He approached the appellant?s van and stated ?Police, stop?, whereupon the following conversation occurred:

Officer: Do you live here?

Appellant: Umm, yeah, yes.

Officer: You live here?

Appellant: Umm, yes.

Officer: What?s with all the plants?

Appellant: Umm, I don?t know.

Officer: The plants in the basement?

Appellant: [Sighs, looks down at his lap, no oral response].

But for this statement by the appellant, there was “no evidence at trial capable of connecting him to the house and establishing knowledge and control of the grow operation.”

The appellant argued that his s. 10(a) right to be informed promptly of the reasons for his detention had been violated. The Crown acknowledged that they had, but that the violation had been so minor that the evidence ought not to be excluded. Held, by the Ontario Court of Appeal, the evidence should have been excluded. The statement was self-incriminating, conscriptive evidence — which, according to Stillman, will “generally tend to render the trial unfair.” S. 10(a) was distinguished and related to s. 10(b):

It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it.

Distinguishing Suberu, the Court held that in that case the accused “did not allege a breach of s. 10(a) because it was clear that he knew the general nature of the alleged offence for which he was detained.” I’m not so sure. Certainly knowledge in that case was implied. But it may just as easily have been here as well. And does knowledge of the “general nature of the alleged offence” equal a full awareness “of the extent of his or her jeopardy”?

Is this a crack in the Mann juggernaut?

Full post as published by Criminal Review on January 24, 2008 (boomark / email).