R. v. Phu (V.T.), [2000] O.T.C. 371 (SupCt)

• Judge: O'Connor, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 08, 2000
• Jurisdiction: Ontario
• Citations: [2000] O.T.C. 371 (SupCt)

R. v. Phu (V.T.), [2000] O.T.C. 371 (SupCt)

MLB headnote and full text

Temp. Cite: [2000] O.T.C. TBEd. MY.120

Her Majesty The Queen v. Van Thu Phu

(CRIMJ(P)2647/99)

Indexed As: R. v. Phu (V.T.)

Court of Ontario

Superior Court of Justice

O'Connor, J.

May 8, 2000.

Summary:

The accused was arrested on the front lawn of a burning house and charged with arson and attempted murder. He had suffered second and third degree burns. On the way to the hospital in an ambulance he made some incriminating utterances in response to questions put to him by an ambulance attendant. At issue was whether the statements were voluntarily given and whether the accused's Charter rights to counsel and to remain silent were infringed during his arrest and thereafter.

The Ontario Superior Court held that the statements were not made voluntarily because they were made to a person in authority in circumstances that violated the accused's s. 7 Charter right against self-incrimination. Further, the accused's s. 10(b) Charter right to counsel was violated because his difficulty understanding English prevented him from understanding the s. 10(b) caution given to him. The court excluded from evidence the statements that the accused made to the ambulance attendant.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination -Charter, s. 7 - See paragraphs 23 to 24.

Civil Rights - Topic 4608.1

Right to counsel - General - Advice of - Understanding of - See paragraphs 28 to 31.

Criminal Law - Topic 5340

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Effect of mental capacity of accused - See paragraphs 17 to 18.

Criminal Law - Topic 5353

Evidence and witnesses - Confessions and voluntary statements - Who is a person in authority - See paragraphs 19 to 22.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - See paragraphs 1 to 27.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - See paragraph 12.

Cases Noticed:

R. v. Valencia (E.L.) (1998), 69 O.T.C. 295 (Gen. Div.), refd to. [para. 12].

R. v. Nagotcha, [1980] 1 S.C.R. 714; 32 N.R. 204; 109 D.L.R.(3d) 1; 51 C.C.C.(2d) 353, refd to. [para. 17].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201; 116 D.L.R.(4th) 416; 92 C.C.C.(3d) 11; 32 C.R.(4th) 1; 23 C.R.R.(2d) 6, refd to. [para. 17].

R. v. Thomas (D.), [2000] O.T.C. 263 (Sup. Ct.), refd to. [para. 17].

R. v. M.C.H. (1998), 230 N.R. 1; 113 O.A.C. 97; 127 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 19].

R. v. Wells (S.W.) (1998), 230 N.R. 183; 112 B.C.A.C. 101; 182 W.A.C. 101; 127 C.C.C.(3d) 500 (S.C.C.), refd to. [para. 19].

R. v. M.R.B. (1998), 108 B.C.A.C. 85; 176 W.A.C. 85; 125 C.C.C.(3d) 335 (C.A.), dist. [para. 21].

Boudreau v. R. (1949), 94 C.C.C. 1 (S.C.C.), refd to. [para. 26].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 74 C.R.(3d) 129; 53 C.C.C.(3d) 330; [1990] 2 W.W.R. 220; 71 Alta. L.R.(2d) 145, refd to. [para. 28].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289; 118 D.L.R.(4th) 83; 33 C.R.(4th) 1; 6 M.V.R.(3d) 1, refd to. [para. 28].

Counsel:

David Quick, for the applicant/Crown;

Christopher Hicks and Joseph Wilkinson, for the respondent/accused.

This voir dire was heard on April 11, 13, 14 and 19, 2000, by O'Connor, J., of the Ontario Superior Court, who delivered the following decision on May 8, 2000.

Please note: The following judgment has not been edited.