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R. v. Chau, 2019 BCPC 200 (CanLII)

Date:
2019-08-28
File number:
87833-3
Citation:
R. v. Chau, 2019 BCPC 200 (CanLII), <https://canlii.ca/t/j28ln>, retrieved on 2024-03-29

Citation:

R. v. Chau

 

2019 BCPC 200

Date:

20190828

File No:

87833-3

Registry:

Kelowna

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

OLIVER CHAU and ANH QUOC NGUYEN

 

 

 

 

 

 

RULING ON VOIR DIRE #1

OF THE

HONOURABLE JUDGE A. TAM

 

 

 

 

Counsel for the Crown:

J. Le Dressay

Counsel for the Defendant Chau:

W. Jessop

Counsel for the Defendant Nguyen:

C. Muldoon

Place of Hearing:

Kelowna, B.C.

Dates of Hearing:

August 26, 27, 2019

Date of Ruling:

August 28, 2019


[1]           This is an application by Mr. Anh Quoc Nguyen to set aside a tracking warrant granted pursuant to s.492.1(2) of the Criminal Code. On September 26, 2017, Cst. Fradette of the Vernon RCMP sought, and was granted, a tracking warrant in relation to two cell phone numbers: 250.307.6738 and 250.863.9096. The tracking of the latter cell phone number did not produce any evidence that is relevant to these proceedings. As such, it is the authorization of the tracking of the former number that is in question on this voir dire. The attack is a facial one and there was no application to cross-examine the affiant. No further evidence was called to amplify the record and we proceeded with a review of the Information to Obtain (ITO hereafter) as an exhibit, and then on the basis of counsels’ submissions.

[2]           Mr. Muldoon, on behalf of Mr. Nguyen, says that the warrant should not have been issued since the ITO falls short of the requisite grounds. To that end, Mr. Muldoon also asks the court to excise a number of paragraphs which he says ought not have been included. These include paragraphs in which the officer expresses an opinion as to the inferences he drew from the evidence available to him. They also include paragraphs in which the officer described criminal conduct which did not result in any legal proceedings or convictions. But even if there were no excisions, Mr. Muldoon says that the warrant should not have been issued on the basis that it fails to meet the requisite grounds.

[3]           Mr. Le Dressay, on behalf of the Crown, says that there is no legal basis to excise the paragraphs in the manner suggested by the applicant. Criminal conduct, as long as it is reliable and true, are admissible in an ITO notwithstanding the fact that no charges were laid or no convictions resulted. The Crown also says that there is nothing wrong with the affiant expressing his opinion or the inferences he did draw. In fact, it is a prerequisite in an ITO that the affiant expresses his subjective belief as to whether grounds exist for a warrant. Lastly, the Crown says that it was open to the issuing justice to rely on the confidential informant information since they were detailed, specific, and corroborated by police investigation.

[4]           I have concluded that the tracking warrant in question must be set aside. I so conclude for two related reasons.

[5]           Firstly, s.492.1(2) sets out the prerequisites for a tracking warrant to be issued. Specifically:

(2) A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

[Emphasis added.]

[6]           As applied to the case at bar, it is a requirement that there be some evidence upon which to believe, on reasonable grounds, that the cell phone assigned to the number 250.307.6738 is a thing that is usually carried by Mr. Nguyen. In this case, the only references to this phone number came from the three confidential informants, referred to as “A”, “B”, and “C”. Informants A and B both say that “the phone number for Jerry’s drug trafficking group is 250.307.6738”. Informant C says that “a phone number associated to Jerry’s drug trafficking group is 250.307.6738”. None of these informants say that this phone number is actually associated to Jerry himself. Incidentally, only Informant A was shown a photograph of Mr. Nguyen and identified him as someone known to him/her as Jerry. There is no evidence that the other informants know Mr. Nguyen as Jerry. But returning to the nexus between 250.307.6738 and Mr. Nguyen, there is simply no further evidence that is capable of supporting, or indeed even purports to support, such a link. Put into the legislative framework, I ask myself whether the evidence presented in the ITO provides a basis to believe, on reasonable grounds, that 250.307.6738 is a cell phone usually carried by Mr. Nguyen. Based solely on the very general notion that this phone number is “associated to Jerry’s drug trafficking group”, I find that the information falls far short of providing a basis for that belief. No one had ever contacted, or even tried to contact, Jerry at this number.

[7]           The Crown argues that there is no requirement that the phone number be connected to Mr. Nguyen directly. It is sufficient, says the Crown, that there is evidence to support that this phone number is associated to the drug trafficking group and that tracking this cell phone would assist in advancing the investigation. It may well be that this phone is used by someone other than Mr. Nguyen. Or that the phone gets passed around from associate to associate. Or it may simply be a phone number which is then forwarded to another phone. But tracking this number will clearly provide useful information for the investigators. In any event, the issuing justice clearly drew the inference that this phone number is associated to Mr. Nguyen and it was open to him/her to do so.

[8]           With respect, I cannot accede to Crown’s argument. When I return to the statute, it is clear that Parliament intended to authorize the tracking of an individual’s movement. How that is to be accomplished is to authorize the tracking of a thing, usually carried by that individual. The tracking of the thing, therefore, is the means by which the intended objective is to be achieved. As such, it is insufficient simply to say that the phone number is associated to a drug trafficking group in a general sense. An individual must be identified, whose movement, if tracked, will assist in the investigation. This interpretation is supported when one considers the latter part of the subsection in which the issuing justice needs to be satisfied that the thing to be tracked is something usually carried or worn by the individual. Accordingly, unless there is an individual who has been identified as having a nexus to the phone number, the grounds to issue a warrant to track that phone number do not exist. In the case at bar, I do not suggest that the police needed to make a connection between the phone number and Mr. Nguyen. But at a minimum, there needed to be a connection between the phone number and the individual referred to as “Jerry”. On the totality of the content of the ITO, I find that there was simply no evidence upon which to make that connection.

[9]           I come to this conclusion, having ignored the information in the ITO that suggests the contrary. On January 3, 2017, the police arrested a Ms. Selina Mitchell, someone whom the police suspected to be an associate in Mr. Nguyen’s drug trafficking organization. On that day, Ms. Mitchell’s phone was searched and a contact named “Gerry” was listed as having a phone number of 778.239.0965. In Ms. Mitchell’s phone, the phone number of 250.307.6738 does not appear.

[10]        On Aug 26, 2017, Mr. Riyad Isaq was arrested by the Vernon RCMP and a search of his phone revealed a contact named “Gerry” with a phone number of 250.863.9096 and “Jerry” with a phone number of 778.239.0965. Mr. Isaq is also someone the police suspected to be an associate in Mr. Nguyen’s drug trafficking organization.

[11]        Informant B associates Jerry with the phone number 250.863.9096.

[12]        I earlier concluded that the information presented in the ITO falls short of establishing any compelling link between Mr. Nguyen and 250.307.6738. Once I take into account the evidence that contradicts that connection, the result becomes much more obvious. In my view, the information presented in the ITO suggests, in all likelihood, 250.307.6738 is NOT something usually carried by Mr. Nguyen. For that reason, a prerequisite to the issuance of the tracking warrant is missing and the warrant must be set aside.

[13]        Here, I am mindful not to conduct a hearing de novo. It is not my role now, as the reviewing judge, to substitute the authorizing justice’s view with my own. But rather, the question I must decide is whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. See R. v. Araujo, 2000 SCC 65 at para. 51. There is also a presumption of validity in that the onus is on the applicant to show why the warrant should be set aside. But paying due deference to the issuing justice, as I must, I conclude that the warrant could not have been issued. There was simply no evidence upon which the connection between the phone number and Mr. Nguyen, or even Jerry, could have rationally been made.

[14]        The second and related reason I would have set aside the warrant relates to the weight of the information to be given to the three confidential informants. Since the purported link between Mr. Nguyen and 250.307.6738 comes exclusively from the three informants, it is important to scrutinize those paragraphs to assess whether they provided a basis upon which an authorizing justice could have granted the warrant. Here again, I am mindful not to conduct a hearing de novo.

[15]        When it comes to dealing with confidential informants, Romilly J. provided a helpful summary of the factors to be considered by the reviewing judge in R. v. Maton, 2005 BCSC 330. At para. 44 of Maton, he writes:

[44] In Garofoli, Sopinka J. at p.191, summarized the principles espoused in Greffe and R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.) as follows:

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search.  However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to ‘the totality of the circumstances.’ There is no formulaic test as to what this entails.  Rather, the court must look to a variety of factors including:

a)            the degree of detail of the ‘tip’;

b)            the informer’s source of knowledge;

c)            indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of the reliability of the information.

[16]        In the case at bar, I have grave concerns about relying on the information from the confidential informants for a number of reasons, at least when it comes to the purported link between 250.307.6738 and Mr. Nguyen.

[17]        Firstly, the pedigree of all three informants is not well laid out. In relation to all three Informants, Cst. Fradette said:

Some of the information regarding this investigation has been corroborated by other means including police investigation, surveillance observations and information from other Confidential Informers.

[18]        What the affiant did not disclose, however, is whether the informant has ever provided information that turned out to be false, intentionally or otherwise. There is also no history of how many times the information provided by the informant has led to an arrest, laying of charges, or convictions, as is often seen in other cases. I do not here suggest that a “tally sheet”, as Mr. Muldoon calls it, is always necessary in every case. But taking the evidence in its totality, I find that the authorizing justice was not in a position to properly assess the credibility or reliability of each of the three informants.

[19]        The problem is then exacerbated by some significant shortcomings in the information contained in the ITO. At no point did the affiant specify when he received the information from the informant. The affiant did not specify the timeframe within which the information was applicable. There was also no indication as to whether the informant knows the information first hand, second hand, third hand, or through the rumour mill.

[20]        Lastly, the tip that 250.307.6738 is associated to Gerry’s drug trafficking group is, at best, not supported by the other aspects of the police investigation. At worst, it is contradicted by it. At no point in this police investigation, was there any confirmation that 250.307.6738 was associated to this drug trafficking group, let alone associated to a cell phone that Mr. Nguyen (or even Jerry) carries. For all of these reasons, the information provided by the informants fell well short of providing a credible basis to link Mr. Nguyen with 250.307.6738.

[21]        In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, the Supreme Court of Canada instructs trial judges to ask themselves whether information gathered is compelling, credible, and corroborated. These are not separate tests, but rather factors to be considered in the totality of the circumstances. Having considered all of the factors in turn and collectively, I conclude that the information received from the three informants, at least as it relates to the purported link between Mr. Nguyen and the phone number, was so deficient as to invalidate the warrant that was issued on reliance of it.

[22]        For either or both of the above reasons, the tracking warrant must be set aside.  And any information consequently gathered was done without a valid authorization.

[23]        Mr. Muldoon also applied to the court to excise certain portions of the ITO. In light of my findings, I find it unnecessary to deal with that application. I have proceeded on the basis, but without deciding, that all of the paragraphs in the ITO were properly before the issuing justice. Nevertheless, I have found it deficient for the above reasons. Accordingly, the tracking warrant issued on Sept 26, 2017, for cell phone 250.307.6738, is hereby set aside.

 

 

_________________________

The Honourable Judge A. Tam

Provincial Court of British Columbia