The appellant in the case, The Khanh Pham, had been convicted of trafficking methamphetamine and sentenced to eight years in prison. But he appealed his conviction under ss. 10(a) and 10(b) of the Charter, which require a defendant to be informed of the reasons for their arrest and their right to obtain counsel, because the police had failed to do so in Vietnamese. He said the police further failed to provide him with counsel for three hours and 10 minutes after his arrival at the police station.
A residence where Pham had been seen regularly was searched the day after his arrest, as was his vehicle. Prior to the search, one of the arresting officers attempted to interview Pham to eliminate safety concerns surrounding the suspected drug manufacturing operation in the residence. By that time, Pham been brought to the Madoc, Ont., OPP detachment and spoken to duty counsel with the assistance of a Vietnamese interpreter.
The trial judge accepted that Pham’s rights had been breached, but found the admission of the drug evidence would not bring the administration of justice into disrepute in violation of s. 24(2) of the Charter. And a three-judge panel of the Ontario Court of Appeal has now agreed, concluding the delay in accessing a Vietnamese interpreter was due to a mistake by police that was “isolated and situational-specific.”
“The trial judge considered all of the evidence before him and found that the appellant had not been mistreated in any way, and that no attempts were made to obtain a statement from him before he had the opportunity to speak to duty counsel with the assistance of a Vietnamese interpreter,” the court wrote. “Moreover, defence counsel had conceded that there was no causal link between the breach of the appellant’s Charter rights and the evidence obtained through the search of [Pham’s] residence and [his] vehicle since it had been authorized by a warrant issued prior to the appellant’s arrest.”
As a result of its findings, the court dismissed Pham’s appeal. The court in the matter consisted of Justices Paul Rouleau, Katherine von Rensburg and Steve Coroza (R. v. Pham, 2025 ONCA 37).
Pham’s counsel, Ricardo Golec of Schofield Macchia, said he was “obviously disappointed” in the result of the case but “ultimately this decision does not deter us from shining a light on the inadequate treatment of language barriers in police interactions.”
“The court in this case found that it was an available conclusion from the trial judge to find that the primary officer involved was essentially acting alone in this troubling conduct,” he said. “At the very least, that shows that there are some training and/or resource issues in Ontario police departments — and this case is not the first and likely won’t be the last to show this.”
The officer had “basically decided” alongside his superiors that he’d rather have a “police-minded” person help him interview Pham, said Golec.
“And that led to a long and entirely avoidable delay in getting Mr. Pham the interpretation he needed. And that was despite being told by other officers and civilian police employees that there was a better/quicker way and that going down this chosen path would ‘cause trouble’ in the courts,” he said.
Golec said the takeaway of the decision is to ensure you give a trial judge all the tools they need to critically analyze the police decision-making in a case.
“We provided the trial judge with all sorts of policy and training manuals to show how the officer had departed from how the situation should have actually been handled,” he said. “Ultimately, the trial level decision — and appeal decision too — don’t take away from the fact that the police actions here did breach Mr. Pham’s rights,” he said. “It was just a situation in which the s. 24(2) remedy sought wasn’t ultimately given due to the specific facts of when, where and how the evidence was found.”
Representatives of the Crown did not respond to a request for comment by press time.
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