



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Nguyen,









2016 BCCA 32




Date: 20160126

Docket:
CA42331

Between:

Regina

Respondent

And

Anh Tuan Nguyen

Appellant




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Supreme Court of British Columbia, dated
September 19, 2014 (
R. v. Nguyen,
Vancouver Registry
26266).




Counsel for the Appellant:



D.L. Karp and M.
  Reinhart





Counsel for the Respondent:



M. Mereigh





Place and Date of Hearing:



Vancouver, British
  Columbia

December 18, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 26, 2016









Written Reasons by:





The Honourable Mr. Justice Willcock





Concurred in by:





The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders








Summary:

The appellant was convicted
of aggravated assault of another nightclub patron. Club security intervened and
held the appellant at the scene. Police arrived, handcuffed the appellant and
arrested him. The appellant made comments to club staff and later to police
indicating his involvement. The appellant appealed his conviction on the basis
that his statements were erroneously admitted, and that his ss. 10(a) and (b)
Charter rights were violated. He also argued the judge ought to have instructed
the jury on honest but mistaken belief the victim consented to the altercation.
Held: appeal dismissed. The judge found the nightclub staff were not
acting as agents of the state or making an arrest, and had no obligation to
inform the appellant of his Charter rights; the appellants access to counsel
was delayed but there were no means of facilitating private communication with
counsel until later at the station; and the appellants statements were voluntary.
There is no reason to interfere with any of these factual findings. The judges
charge to the jury was correct and comprehensive. There is no error justifying
intervention.

Reasons
for Judgment of the Honourable Mr. Justice Willcock:

Introduction

[1]

The appellant was convicted at the conclusion of a 10-day judge and jury
trial

on September 19, 2014, of the August 31, 2011 aggravated
assault of Christopher Ball, contrary to s. 268(2) of the
Criminal Code
,
R.S.C. 1985, c. C‑46. The appellant appeals his conviction and seeks
a new trial.

[2]

The appellant argues the trial judge erred in admitting into evidence a
series of his statements made after the commission of the offence. The appellant
says the statements were obtained as a result of a breach of his s. 10
Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c. 11
[
Charter
],

rights and their admission into evidence offends the conscience of the
community. The ruling on admissibility was made for reasons indexed at
2014 BCSC 1499.

[3]

Further,
he
submits the trial judge
erred in law by failing to
charge the jury with respect to the appellants honest but mistaken belief that
the victim consented to the altercation that resulted in the conviction.

[4]

At the outset of the hearing of the appeal, he abandoned the contention
that the trial judge erred in failing to instruct the jury on self-defence
under s. 34(1) of the
Criminal Code
. He
also abandoned the contention that he had been arbitrarily detained by a police
officer in breach of his
rights under s. 9 of the
Canadian Charter of
Rights and Freedoms
.

The Evidence

[5]

The Crowns case consisted of the evidence, first led on a
voir dire
,
of the employees of the Republic Nightclub who witnessed events and produced
video records of the evening in question, and the police officers who
investigated, detained and arrested the appellant, and recorded his statements
at the scene. The defence case consisted of two witnesses: the appellant and
his girlfriend, Danielle Man. The appellant and Ms. Man did not testify on
the
voir dire
.

[6]

The video

evidence depicts the appellant with Ms. Man and a
friend near the bar. Mr. Ball approaches the front of this group, moves
around the appellant and walks away.

The appellant is then seen to run
behind Mr. Ball and strike him on the back of his head. Mr. Ball falls
forward, out of the cameras view. The appellant is then escorted out of the
nightclub by an employee. Ms. Man follows him.

[7]

The appellant testified that Mr. Ball approached the group at the
bar, nudged the appellant and said, Your girlfriends hot. The appellant
responded Get lost or Just keep moving on. Mr. Ball responded, Watch
your back. The appellant says Ms. Man then told him, This guy just
grabbed my ass. He testified he confirmed she was certain this had occurred and
then went after him. He pursued Mr. Ball in order to confront him and
did not punch Mr. Ball, but struck his head or shoulder with an open hand.
He did not intend to injure him. He explained he had no time to think; his
instant reaction was to protect Ms. Man and himself by chasing after and
striking Mr. Ball from behind. He agreed with the suggestion he was angry
and  Mr. Ball was walking away when he pursued him but testified he
remained concerned Mr. Ball would return. He acknowledged in
cross-examination that the video did not show Mr. Ball touching Ms. Man.
He also agreed the video appears to depict him directing a kick toward Mr. Ball
as he lay on the ground and he agreed Mr. Ball did not expressly consent
to engage in a fight. He denied being affected by alcohol.

[8]

Shane Dobie, a venue control host at the Republic Nightclub, saw the
appellant tackle and punch Mr. Ball from behind and saw them both fall forward.
Mr. Ball struck his head, possibly on the wall and then the concrete
floor. When Mr. Ball was face down on the floor, the appellant sat on the
victims back and started to throw punches.

[9]

Mr. Ball recalled having 10-15 drinks at the Republic Nightclub
over the course of quite a few hours. He woke up in the hospital. While he has
no memory of the incident, he conceded that if he had groped Mr. Nguyens girlfriend
he should have expected some form of conflict to result.

[10]

Mr. Dobie testified in the
voir dire
that he had come across
an altercation, which he stopped with the assistance of other patrons. He
pinned the appellant against the wall and asked what was happening. The appellant
replied that the other individual had touched my girlfriends ass. Mr. Dobie
then handed the appellant over to Mr. Robinson to be escorted off the
premises. Mr. Dobie returned to the victim, Mr. Ball, who lay
unconscious on the floor. He then radioed his colleagues and advised them the
person they were escorting out ought to be held for police questioning as the
injury to the victim was serious and police and ambulance were needed.

[11]

Frank Robinson testified in the
voir dire
that he escorted a group
of patrons through an emergency exit door and into a stairwell. As he was doing
so, an Asian male in a white shirt, later identified as the appellant, said
yeah, I did it, I did it because he grabbed her ass. Mr. Robinson had
not engaged the appellant in conversation.

[12]

The group went down the stairs in about 20 seconds. As the patrons
left the club and the appellant began to cross Granville Street, Mr. Robinson
received instructions to hold him for police. When Mr. Robinson put out his
arms to detain him, the appellant slapped his arm. Mr. Robinson, with the
help of another venue control host, brought the appellant to the ground and
held him. A marked police vehicle was just arriving at the scene.

[13]

Constable Rajprit Mander arrived in that marked police vehicle at 2:53 a.m.
He observed the appellant and two uniformed employees of the Republic Nightclub,
one of whom was Mr. Robinson, in the middle of the street. He saw the
appellant shove Mr. Robinson and saw Mr. Robinson take hold of the appellant,
who fought to get free.

Constable Mander activated his emergency lights,
pressed the siren a few times and parked his police vehicle. He ran up to Mr. Robinson
and the appellant, who was continuing to struggle. When he asked what was going
on he was told the appellant had likely hit someone on the head with a bottle
inside the club. Constable Mander then yelled in the appellants ear police
to identify himself and told the appellant to stop fighting. When he did not do
so, Constable Mander placed handcuffs on him.

He testified that he did
so for officer safety, before investigating what had occurred. He did so
because he was without any other police support; there were many intoxicated
people on the street; he had seen the appellant fight with bar staff; the appellant
did not cease fighting after police presence was announced, even after being
restrained; and the appellant was observed to be strong, very angry and
breathing heavily.

[14]

After handcuffing the appellant, Constable Mander walked him to a safer
location on the sidewalk. Ms. Man approached and said My boyfriend was
just protecting me because a white guy had touched my ass. The appellant then
said Listen man some guy grabs your girls ass youd knock him out too wouldnt
you? Constable Mander testified he had not asked the appellant any questions
or engaged in discussion before that statement was made.

[15]

Within two minutes of handcuffing the appellant, Constable Mander thought
he had reasonable grounds to believe the appellant had assaulted someone, so at
3:01 a.m. he arrested him for assault with a weapon and assault causing
bodily harm. Constable Mander gave the appellant the ss. 10(a) and (b)
Charter
warnings. The appellant stated he understood and requested an
opportunity to speak to a lawyer, David Karp.

[16]

Constable Mander testified he did not suggest the use of a cell phone at
the scene because the scene was not safe, and it was impossible to provide the
appellant with privacy. There were many people standing nearby them on the
street. The appellant could not be placed alone in the police cruiser, which had
no shield separator preventing access to the steering system, the computer and
the radio. Any call made from the scene would have to be brief and would likely
be interrupted to permit Constable Mander to manage the scene.

[17]

When Constable Mander started to write notes, the appellant made another
un‑elicited statement: Listen, some fucking fag grabbed my girls ass,
so I knocked the motherfucker out. Yeah, I did, big fucking white guy, out
cold. He threw a punch. I laid him out. Yeah.

Ms. Man again made a
statement to Constable Mander regarding a male grabbing her and asked why the
police had not done anything. Constable Mander asked her to describe the person
who had grabbed her. The appellant interjected saying, He was a big stocky
white guy. You cant miss him. Hes probably still out cold inside. Ms. Man
said, Well, why dont you go arrest him? And the appellant said, Yeah. Go
arrest him for grabbing her ass and assault, once he wakes up.

[18]

Constable Mander handed the appellant over to Constable Luccock, who took
conduct of the appellant at 3:10 a.m. and read him the
Charter
warnings
again. When the police wagon arrived, the appellant was loaded into the wagon
and transported to the police station.

[19]

The appellant denied he made any of the statements testified to by Mr. Dobie,
Mr. Robinson and Constable Mander.

Rulings and the Jury Charge

Ruling on Admissibility

[20]

Crown counsel sought to establish the voluntariness of the appellants statements
to Shane Dobie, Frank Robinson and Constable Mander.

[21]

The appellant brought a pre‑trial application under s. 24(2)
of the
Charter
seeking the exclusion of his statements on the grounds this
evidence was obtained in breach of his s. 10(a) and (b)
Charter
rights.
Relying on
R. v. Dell
,

2005 ABCA 246, and
R. v. Asp
,

2008 BCSC 794, affd 2011 BCCA 433, the appellant argued Mr. Dobie and
Mr. Robinson acted as agents of the police, exercising a common law power
of arrest, and should have advised him of his rights under the
Charter
immediately
upon restraining him. The appellant further submitted he was arbitrarily detained
by Constable Mander when he was handcuffed and, in any event, that he should
have been advised of the reason for his detention and his
Charter
rights
immediately upon being detained.

[22]

The appellant further claimed that his s. 10(b) right to counsel
was breached, arguing he was detained by Mr. Dobie shortly after
2:51 a.m., physically held by Mr. Robinson, handcuffed by Constable
Mander, and formally arrested at 3:01 a.m. but was not permitted to speak to
counsel until 5:40 a.m. He requested to speak to a lawyer upon arrest and
says he should have been provided with that opportunity immediately. He submits
there was an 11- to 14-minute delay between detention and being informed of his
s. 10(b) rights (depending upon when he may be said to have first been
detained by nightclub employees), and a two-hour and 40-minute delay between
his arrest by Constable Mander and access to counsel.

[23]

The trial judge admitted the statements made by the appellant into
evidence. She found that evidence of the statements to both employees and to
the police officer before the appellant was arrested, although hearsay, fell
within the
res gestae
exception to the hearsay rule and was
admissible for that reason. She therefore found it unnecessary to address voluntariness.
She found evidence of the subsequent statements made to Constable Mander met
the test for voluntariness described in
R. v. Oickle
,

2000
SCC 38, and was admissible on that basis.

[24]

Turning to the question whether the appellants
Charter
rights
had been breached, the trial judge found:

a)

Mr. Dobie broke up the fight and asked Mr. Robinson to evict
the appellant, and only when the severe nature of the injuries became apparent
was Mr. Robinson instructed to detain the appellant, which he did for a
brief period that could be considered no more than an investigative detention. The
Republic employees had not arrested the appellant and there was nothing in the
evidence that would suggest express delegation or abandonment of state powers
to the employees. Although Mr. Robinson thought he was arresting the appellant
when he physically held him, he did not receive instructions to arrest the appellant,
only to detain him, and he did not tell the appellant or Constable Mander that
he had made an arrest. Detaining the appellant and turning him over to police
did not make Mr. Dobie or Mr. Robinson police delegates. Given the
finding that they were not exercising a common-law power of arrest, nor acting
as state agents, they owed no
Charter
obligations to the appellant.

b)

The appellant was not arbitrarily detained by Constable Mander when he
was placed in handcuffs before he was arrested. He was detained for the purpose
of preserving the peace and there was no breach of s. 9 of the
Charter
arising from his detention. Constable Manders stated concern that the
appellant may be a danger to himself, to the public and to the police was held
to have been reasonable in the circumstances. Referring to
R. v. Mann,
2004 SCC 52, the trial judge held the police have a common law power to
detain individuals with a view toward preserving the peace, preventing crime and
protecting life and property.

c)

The delay between the detention of the appellant and explanation of the
reason for his detention did not amount to a breach of s. 10(a) of the
Charter
,
because the circumstances justified detention without provision of reasons. The
case fell within the exception to s. 10(a) where the reason for detention
is obvious in the circumstances surrounding the arrest. Citing
R. v. Evans
,
[1991] 1 S.C.R. 869,

and
R. v. Boden
, 2014 BCSC 66,

she
found no breach of s. 10(a) stating:

Here it must have been obvious to the accused why he was
being detained. He knew he had just beaten up and knocked unconscious the
complainant and was now struggling with Mr. Robinson. He could have no
other reason for thinking why he was being handcuffed other than his knowledge
that he had just been in a fight and was now embarking on another one.

d)

The delay from
the time the appellant was arrested until he was given an opportunity to
retain and instruct counsel was not so inexcusable as to constitute
a breach of s. 10(b) of the
Charter
. Citing
R. v. Taylor
,

2014 SCC 50, the judge found that without delay under s. 10(b) means
at the first reasonably available opportunity or as soon as practicable. While
the evidence established that Ms. Man had a cell phone, and the appellant
and/or Constable Mander may also have had cell phones, it would not have been safe
or efficacious to allow the appellant to use those cellphones to call his
lawyer. There was no reasonably available opportunity for the appellant to make
a phone call in private until he got to the police station. Further, [n]o
self-incriminating evidence was elicited accidentally or intentionally between
the time the appellant expressed his desire to consult with a lawyer and the
time his access to a lawyer was facilitated. Therefore, no breach of s. 10(b)
was found.

The Jury Charge in Relation to Consent

[25]

Both the Crown and counsel for the appellant made extensive
submissions to the trial judge with respect to the instruction that should be
given to the jury in relation to consent. In his submissions, defence counsel
referred the trial judge to four cases on assault and consent:
R. v. Jobidon
,
[1991] 2 S.C.R. 714;
R. v. Paice
, 2005 SCC 22, [2005] 1 S.C.R.
339;
R. v. Oppal
(1984), 43 C.R. (3d) 365 (B.C. Prov. Ct.);
and
R. v. Doherty
(2000), 227 N.B.R. (2d) 348, 146 C.C.C. (3d)
336 (N.B.C.A.). He submitted these cases stand
for
the rule that, where there is consent to
the application
of force, an accused cannot be convicted of assault
unless he intends to cause bodily harm
and does so. Once there is consent to the application of some force, the Crown
will have to establish the existence of a
situation or form
of conduct which vitiates that consent. Defence relied upon the rule expressed
in
Jobidon
at p. 743 in the following terms:

Whether consent is formally
categorized as part of the
actus reus
of the offence, or as a defence,
its essential function remains unaltered -- if consent is proved, or if absence
of consent is not proved, an individual accused of assault will
generally
be able to rely on the consent of the complainant to bar a conviction.

[Emphasis in original.]

[26]

In
Doherty
the Court noted:

Even in circumstances where serious harm is inflicted in the
course of an altercation, the injured partys consent to the application of
force to his or her person will preclude a finding of unlawful assault against
the combatant who stands accused, unless the Crown establishes that such
serious harm was intended by the latters application of force. That view was
expressed in 1984 by The Law Reform Commission of Canada in Working Paper 38:
Assault
,

at p. 24:

As regards the present law, it is clear that ... in general,
where the contact is intended to cause death or serious harm, consent is no
defence.

[27]

The Crown argued Mr. Ball did not consent to a fight of any kind
and, even if there had been consent, it would not have extended to the blows
inflicted after he fell to the ground and lost consciousness. The Crown acknowledged
the jury would have to be instructed it was the Crowns obligation to prove the
absence of consent to the assault but should also be instructed that consent
does not provide a defence where the accused intends to cause serious harm or
non‑trivial bodily harm in a fist fight.

[28]

In the course of submissions on the charge, counsel and the judge turned
to the provisions of the CRIMJI in relation to mistaken belief and consent. The
judge indicated that this was not a case of mistaken belief. Crown agreed.
Defence counsel said:

I think that that -- usually its
in sex assault cases, I think, where it arises. But I think there would first
have to be a finding that it was mistaken and Im arguing that there was
consent.

[29]

He was asked to consider his position and address the matter further on
the following day. No further submissions were made.

[30]

The jury was charged on the findings they would need to make in order to
convict Mr. Nguyen of aggravated assault, as well as lesser and included
offences. These included findings discussed in the charge as elements 5 (that
Mr. Ball did not consent to the application of force) and 6 (that Mr. Nguyen
knew Mr. Ball did not consent of the offence charged).

[31]

In relation to the absence of consent, element 5, the judge
reminded the jury of Mr. Balls testimony that he did not recall consenting
to the application of any force and the appellants evidence that Mr. Ball
implicitly, by his words and conduct, did consent to some response to the
groping of Ms. Man. They were told that they must first determine whether
there was any consent and, if there was, the extent of that consent. The judge noted:
Even where a person does consent to the application of force, that consent
only covers a certain amount of force. It does not cover force that goes beyond
the consent.

[32]

The jury was instructed that if they had a reasonable doubt as to
whether Mr. Ball consented to the application of force by Mr. Nguyen
they must give the benefit of that doubt to the appellant.

[33]

They were reminded the appellant had testified he thought it possible Mr. Ball
was consenting to a fight, and that he was consenting to some response, but acknowledged
Mr. Ball had not consented to the infliction of an injury. They were also reminded
that Mr. Ball agreed that if he had groped Ms. Man he would be
consenting to some type of conflict.

[34]

If they found no consent, they were instructed to go on and consider element 6,
whether the appellant knew the fight was non‑consensual.

[35]

No issue was taken with the charge in relation to consent.

[36]

Jury deliberations commenced at 3:00 p.m. on September 18. At
10:01 p.m. the jury asked:

Please clarify element 5,
concerning the limits of consent to the application of force, specifically
commenting on the definition of serious, non‑trivial bodily harm and
whether the test of Mr. Nguyens intent to cause serious, non‑trivial
bodily harm is his own mental state or that of another reasonable person in the
same circumstance. We are unclear on this element so please review all of this
element if possible.

[37]

After hearing lengthy submissions from counsel, which did not refer to
mistaken belief in consent, the judge responded to the jury on September 19.
She advised the jury that the question posed appeared to have three parts. Namely,
the jury sought:

a)

clarification of consent and how it is vitiated;

b)

a definition of serious, non‑trivial bodily harm; and

c)

direction
whether there must be subjective intent to cause such harm on the part of the
accused.

[38]

The first was answered by directing the jury to consider whether on the
evidence Mr. Ball could be said to have consented to the application of
some force; if so, to consider what he consented to; and last, to bear in mind
that individuals should not be held to have consented to suffering serious hurt
or non‑trivial bodily harm.

[39]

The judge answered the second part of the question by reciting the
definition of bodily harm in s. 2 of the
Criminal Code
.

[40]

The third part of the question was answered by directing the jury to
consider the appellants subjective intent to cause bodily harm. They were told
that they should weigh the evidence of what he said and did and told that, in
addition to relying upon that evidence, they could draw an inference that he
intended the natural consequences of his actions.

[41]

At 1:40 p.m. on September 19, 2014 the jury returned with a
second question. They asked:

Please recharge Element Number 6
with examples of each criteria if possible.

[42]

In the course of submissions to the judge on this question, there was a
discussion of honest but mistaken belief in consent and an acknowledgement by
defence counsel that the defence had not wanted the jury to be charged on
mistaken belief. The judge indicated she understood defence counsel was taking
that position because the argument that the appellant had an honest but
mistaken belief in consent was usually advanced in cases where the accused
acknowledged the victim had not in fact consented, whereas in the case at bar,
the defence continued to assert consent could and should be implied from Mr. Balls
conduct. The question was not further pursued by defence counsel. As I read the
transcript of the submissions, defence counsel appeared to be content with the
charge.

[43]

The jury was recharged on consent, including recklessness and wilful
blindness as to the existence of consent, but specific examples were not
provided. The jury was advised the issue was case-specific and examples would
not be helpful.

Grounds of Appeal

Admissibility of Statements

[44]

In relation to the findings that his statements were admissible, the appellant
argues the trial judge erred in the following respects and, as a result, failed
to exclude his statements, obtained in violation of his
Charter
rights:

a)

finding that the Republic employees, Mr. Dobie and Mr. Robinson,
were not agents of the police required to inform the appellant of his
Charter
rights;

b)

finding that the
Charter
warning was not required when the appellant
was detained as the reasons for detention would have been obvious to him;

c)

finding that the detention of the appellant for safety reasons did not
require the police officer to give the appellant a
Charter
warning;

d)

finding that the appellants s. 10(b)
Charter
rights were
not breached when he was not provided with counsel on request; and

e)

finding that no
further statements were elicited from the appellant after he requested to speak
with counsel.

Jury Charge

[45]

Further, the appellant argues the judge erred in law by failing to
charge to the jury with respect to honest but mistaken belief.

Argument

Admissibility of Statements

[46]

The appeal from the ruling that the appellants statements at the scene
are admissible evidence against him is founded solely upon the argument that
the judge ought to have allowed his application under s. 24(2) of the
Charter
seeking the exclusion of his statements on the grounds this evidence was
obtained in breach of his ss. 10(a) and (b)
Charter
rights.

[47]

The appellant argues
at some point in his interaction with the
Republic employees
a decision was made not to let him walk away and to hold
him at the scene, using force if necessary, until the police arrived, in order
to turn him over to their custody. He says it was at this point he was arrested
and was entitled to be notified of the reason for his detention.

[48]

While he no longer advances the argument that he was detained arbitrarily
by Constable Mander when he was handcuffed, he says there is no doubt he was
detained at that point and entitled, under s. 10 of the
Charter
, to
be informed promptly of the reason for his detention and to retain and
instruct counsel without delay.

[49]

The appellant argues he was only provided with a reason for his
detention and notified of his
Charter
rights after several minutes of
detention, a passage of time that does not meet the immediacy standard in the
circumstances. Statements he made in the meantime were recorded and used
against him, magnifying the significance of the delay. He submits the trial
judges finding that no further statements were elicited after he was arrested
and requested to speak to counsel is in conflict with her findings of fact with
respect to subsequent statements made to the police officer.

[50]

In response, the Crown says the judge properly held the Republic employees
were not agents of the police. The Crown says this was a finding of fact that
ought not to be overturned in the absence of a palpable and overriding error. The
Crown says it is settled law that a citizen who detains an individual for
arrest is not required to give that individual a
Charter
warning.

[51]

Last, in this regard, the Crown says deference is owed to the trial
judges factual findings that there were no
Charter
breaches in this
case. Those findings were based upon her assessment of what amounted to
reasonable conduct in the circumstances and there is no palpable and overriding
error in her analysis.

Jury Charge

[52]

The appellant argues that when the jury asked its second question
(Please recharge Element Number 6 with examples of each criteria if
possible) it was an error not to give the jury some instruction with respect
to the effect of an honest but mistaken belief in consent. He says the jury was
clearly
considering
recklessness and wilful blindness and considering the extent to which the
appellant might have considered Mr. Ball to have agreed to engage in
conflict. He says there was an air of reality to the argument the appellant honestly
but mistakenly believed Mr. Ball had consented to an assault.

Analysis

Admissibility of Statements

[53]

All of the statements, the admissibility of which is in issue, were very
similar in nature. There were four contentious statements:

a)

a statement made to Shane Dobie that the victim touched my girlfriends
ass;

b)

a statement made to Frank Robinson: Yeah, I did it, I did it because he
grabbed her ass.

c)

a statement made to Constable Mander: Listen man some guy grabs your
girls ass youd knock him out too wouldnt you?; and

d)

a further statement
made to Constable Mander: Listen, some fucking fag grabbed my girls ass, so I
knocked the motherfucker out. Yeah, I did, big fucking white guy, out cold. He
threw a punch. I laid him out. Yeah. and Yeah. Go arrest him for grabbing her
ass and assault  once he wakes up.

[54]

No issue is now taken with the
prima facie
admissibility of the
statements. There is no doubt, in my view, the statements are admissible  not,
as the trial judge found, because any of the statements constituted part of the
res gestae
, but rather, because they fell within the
party
admissions exception to the hearsay rule (see
R. v. Evans
,
[1993] 3 S.C.R. 653 at p. 664;
R. v. Osmar
, 2007 ONCA 50,
84 O.R. (3d) 321 at para. 53; and

Sopinka,
Lederman & Bryant: The Law of Evidence in Canada
, 3rd ed.
(Toronto: LexisNexis Canada, 2009) at
§
6.396‑408
and
§
8.1‑22). As
Sopinka J. for the majority wrote in
Evans
:

The rationale
for admitting admissions has a different basis than other exceptions to the
hearsay rule.  Indeed, it is open to dispute whether the evidence is hearsay at
all.  The practical effect of this doctrinal distinction is that in lieu of
seeking independent circumstantial guarantees of trustworthiness, it is
sufficient that the evidence is tendered against a party.  Its admissibility
rests on the theory of the adversary system that what a party has previously
stated can be admitted against the party in whose mouth it does not lie to
complain of the unreliability of his or her own statements.  As stated by
Morgan, [a] party can hardly object that he had no opportunity to
cross-examine himself or that he is unworthy of credence save when speaking
under sanction of oath (Morgan, Basic Problems of Evidence (1963), pp. 265‑66,
quoted in
McCormick on Evidence
,
supra
, at p. 140).  The
rule is the same for both criminal and civil cases subject to the special rules
governing confessions which apply in criminal cases.

[55]

Insofar as the special rules governing confessions are concerned, it is
clear to me, on the evidence, that from the time the Republic employees first
became involved in the altercation between the appellant and Mr. Ball,
until the last recorded statement, all of the statements made by the appellant
in this case were voluntary. They were spontaneous. There was no threat or
inducement. No evidence was led to suggest the statements were not the product
of an operating mind. The appellant denied that he was impaired. Even if the statements
were long removed from the offence and could not form part of the
res gestae
,
evidence the statements were made is admissible, subject to the
Charter
arguments considered below.

[56]

In my view, there is no basis upon which we can or should
interfere with the trial judges conclusion that Republic employees were not
obliged to protect the appellants
Charter
rights. The cases upon which
the
appellant relies do not
support his argument. In
R. v. Asp
,

2008 BCSC 794, Arnold-Bailey J.
held that security guards involved in investigative detention, prior to an
arrest, do not have
Charter
obligations. In doing so, she considered the
other authority relied upon by the appellant,
R. v. Dell
,
2005 ABCA 246. She held:

[18]

After
finding that
Lerke
was still good law, it was necessary for the Alberta
Court of Appeal to then consider whether its principles provide the foundation
for extending
Charter
protection to an investigative detention by a
private person.  The court held that
Lerke
, and the government function
exception recognized in
Buhay
, did not apply to extend
Charter
protection to investigative detention.  At ¶24, the court held:

In
order for the
Charter
to apply to a private entity, it must be found to
be implementing a specific governmental policy or program:
Buhay
at para. 28,
citing
Eldridge
at para. 43. Arguably, citizens arrest involves
not only a broad public purpose of maintaining the peace, but the delegation of
a specific government function to private persons. The latter characteristic is
absent from investigative detention, and, as such, detention by private persons
cannot be considered a specific government function attracting Charter
protection.

And
further at ¶26:

In
summary, unlike citizens arrest, investigative detention cannot be reasonably
construed to be a specific government function that has been delegated to
private citizens. Therefore, the principles on which
Lerke
is based, and
the government function exception recognized in
Buhay
, do not apply to
extend
Charter
protection to investigative detention. Moreover, sound
policy reasons dictate that no such extension should be made.

[19]

I find this distinction, as drawn by
the Alberta Court of Appeal in
Dell
, to be of assistance in my present
analysis.
If the security guards actions in relation to the applicant were
to amount to an investigative detention, as opposed to a citizens arrest, the
Charter
does not apply
.

[Emphasis
added.]

[57]

On the appeal from that decision, this Court was not asked to revisit
that issue, as Frankel J.A. noted at 2011 BCCA 433 at para. 5: In
bringing this appeal, Mr. Asp does not challenge the trial judges finding
that the
Charter
did not apply to Mr. Stewart [the security guard].
Mr. Asps principal ground of appeal relates to the actions of the police
after they arrived at the scene of the altercation.

[58]

I see no reason to disturb the trial judges finding that the Republic employees
did not arrest the appellant. That being the case, the appellants argument
that the Republic employees were required to inform him of his
Charter
rights must fail.

[59]

I turn to the appellants arguments with respect to the police conduct
following Constable Manders arrival on the scene. There was a short delay from
the time the appellant was handcuffed by Constable Mander until he was arrested
and given a
Charter
warning. He was warned immediately upon his arrest. The
trial judges finding that a
Charter
warning was not required when the appellant
was first detained was based upon her conclusion that it was impracticable to
do so in the circumstances. At para. 49 she held:

A person cannot complain he was
not promptly advised of reasons for his arrest when he himself creates the risk
to safety which is peremptory:
Christie
[
v. Leachinsky
, [1947] 1
All E.R. 567 (H.L.)]

[60]

The judges finding that exigent circumstances, some of which were of
the appellants own making, prevented the warning from being given for a short
period of time is a finding of fact with which we should not interfere. It is,
in fact, unchallenged on the appeal. That being the case, the further question
whether the trial judge was correct in concluding that an explanation of the
detention was not required, because the appellant knew why he was being
detained, is immaterial.

[61]

The trial judge, relying upon
R. v.

Mann
,
2004 SCC 52,

found the appellant had
been lawfully detained by Constable Mander.
The appellant no longer
argues he was arbitrarily detained when he was handcuffed. He does maintain,
however, his
Charter
rights were breached by long delay in permitting
him to retain and instruct counsel. The trial judge properly noted that the
words without delay under s. 10(b) mean at the first reasonably
available opportunity or as soon as practicable. She correctly recognized
the police duty, described in
R. v. Taylor
, 2014 SCC 50, to
provide a detained person telephone access as soon as practicable, to reduce
the possibility of accidental self-incrimination and to avoid eliciting
evidence from the individual before access to counsel has been facilitated.
Considering the difficulty providing privacy to the appellant in the
circumstances, citing
R. v. Nelson
, 2010 ABCA 349, she held overheard
consultations are not an adequate alternative to the right to counsel. Her conclusion
there had been no
Charter
breach occasioned by delay was based upon
findings of fact set out at para. 63 of the reasons:

There was no reasonably available
opportunity for the accused to make his phone call until he got to the station.
No self-incriminating evidence was elicited accidentally or intentionally
between the time the accused expressed his desire to consult with a lawyer and
the time his access to a lawyer was facilitated.

[62]

These findings cannot be said to be founded upon a misapprehension of the
evidence. To the contrary, they fairly represent the evidence before the trial
judge. In my view, the appellant erroneously argues the judge believed no
statements were made between the detention and the opportunity to consult
counsel. The judge was aware statements were made but correctly considered the
statements not to have been
elicited
by the police. The statements made after
his arrest may reasonably have been regarded as a discussion initiated by the
appellant and Ms. Man, who were seeking to have the police investigate Mr. Balls
conduct. After the appellant was handcuffed, Ms. Man pressed Constable
Mander to investigate Mr. Balls conduct. The appellant joined in,
explaining why he knocked out Mr. Ball. After he was arrested and was
given a
Charter
warning, which he acknowledged he understood and which
resulted in his request to consult counsel, he again volunteered he had knocked
the victim out cold. The judge concluded that the statements made by the
appellant were not elicited by the police. I am not convinced the evidence was
misconstrued in any way. Nor, in my view, was any legal error made in drawing a
distinction between
elicited
and
volunteered
statements.

[63]

Even if the trial judge had found the delay in giving the appellant a
Charter
warning or an opportunity to consult counsel to have been breaches of his
s. 10
Charter
rights, I am of the view such breaches would not have
justified a s. 24(2) remedy. As the Court noted in
Mann
at para. 52
and
in
R. v. Law
, 2002 SCC 10, [2002] 1 S.C.R.
227 at para. 34, the key consideration under a s. 24(2) analysis is
the nature of the evidence obtained and the nature of the right violated.

[64]

It should be borne in mind that the statements made in the presence of
the Republic employees were made before any of the alleged breaches of his
Charter
rights, while the employees were breaking up a fight and escorting him from
the premises. The appellant does not suggest otherwise. There is no basis for
an argument those statements were obtained
in a manner that
infringed or denied any rights or freedoms guaranteed by the
Charter
so
as to be subject to exclusion under s. 24(2).

[65]

The evidence obtained after the appellant was handcuffed
and before he was arrested can only be said to have resulted from a very brief
detention and consisted of little more than repetition of statements previously
made.

[66]

There was no evidence of bad faith on the part of Constable
Mander.
The trial judge accepted that Constable Mander believed he was
handcuffing the appellant with authority to do so and he honestly believed he
was doing so to prevent injury and to preserve order.

[67]

There is no basis, in my view, upon which it could have been said that the
admission of the appellants statements to Constable Mander would bring the
administration of justice into disrepute. In my view, the appeal founded upon
the argument that the evidence of the appellants statements was wrongly
admitted into evidence at trial should be dismissed.

Jury Charge

[68]

At the hearing before us, the appellant abandoned the appeal from the
judges refusal to charge the jury in relation to self-defence. He therefore
does not suggest there was an honest but mistaken belief that force was
necessary to prevent an assault or its repetition. He argues, rather, that the
jury ought to have been given instruction on the effect of an honest but
mistaken belief on the appellants part that Mr. Ball had consented to
participation in a fight. He says the questions posed by the jury suggest
jurors were having difficulty addressing the question of consent.

[69]

In my view, the appellants submission that the charge to the jury was
deficient must be seen in light of the fact that Mr. Ball had no
recollection of the events in question. There was no direct evidence that he
did not consent to a fight, he simply had no recollection of doing so. The
Crown was obliged to establish the lack of consent on the evidence of
bystanders, the video record and the appellants own statements and testimony.
The case hinged upon the jurys assessment of whether, in all the circumstances,
the appellant might have believed Mr. Ball to have consented to the
application of force that resulted in his injury. That was the thrust of
element 6 of the charge. The jury were expressly advised of their
obligation to consider the appellants state of mind in the initial charge, and
in response to the second question they were told:

All right, so the sixth ingredient the Crown must prove
beyond a reasonable doubt is that Mr. Nguyen knew that Mr. Ball did
not consent to the assault by Mr. Nguyen.

And I told you that proof that Mr. Nguyen
knew that Mr. Ball did not consent to the assault could be established in
one of three ways: by actual knowledge, by recklessness or by willful blindness
to the fact that Mr. Ball did not consent to the assault.

[70]

The concepts of willful blindness and recklessness were further
canvassed in detail. Nothing would have been added to that explanation by
further instructing the jury as to the effect of an honest but mistaken belief on
the appellants part that Mr. Ball had consented to the assault.

[71]

In my opinion, the charge to the jury and the answers to questions, read
as a whole and in light of the submissions of counsel at trial, were correct
and comprehensive. Applying the standard described in
R. v. Brydon
,
[1995] 4 S.C.R. 253;

R. v. Chahal
, 2008 BCCA 529; and
Lennox v. New Westminster
(City)
, 2011 BCCA 182, I cannot see any error justifying our intervention.

[72]

Those portions of the transcript relating to the jury charge to which I
have referred suggest that defence counsel was content with the instructions
given to the jury. While this alone is not determinative of the arguments now
available to the appellant, it is worth bearing in mind the observations of Bastarache J.
in
R. v. Daley
, 2007 SCC 53, that trial counsel are expected
to assist the judge in instructing the jury, which responsibility includes
identifying problems with the judges charge. A failure to object at trial may
be indicative of the seriousness of the alleged violation:
Daley
at para. 58.

Disposition

[73]

I am satisfied that the trial judges instructions to the jury, after
input from Crown and defence counsel, were adequate in the circumstances and do
not give rise to a reversible error.

[74]

I would dismiss the appeal.

The Honourable Mr. Justice Willcock

I
agree:

The Honourable Chief Justice Bauman

I
agree:

The
Honourable Madam Justice Saunders


