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R. v. Chau, 2019 BCPC 246 (CanLII)

Date:
2019-10-09
File number:
87833-3C
Citation:
R. v. Chau, 2019 BCPC 246 (CanLII), <https://canlii.ca/t/j3256>, retrieved on 2024-03-29

Citation:

R. v. Chau

 

2019 BCPC 246

Date:

20191009

File No:

87833-3C

Registry:

Kelowna

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

OLIVER CHAU AND ANH QUOC NGUYEN

 

 

 

 

 

 

RULING ON VOIR DIRE #3

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:

October 7, 8, 2019

Date of Judgment:

October 9, 2019


[1]           This is an application by Mr. Chau to excise certain portions of an Information to Obtain (“ITO” hereafter) on the basis of which search warrants were granted which authorized the search of two residences. It is conceded by the Crown that Mr. Chau has a reasonable expectation of privacy with respect to these two residences and so Mr. Chau has standing to attack the search warrants. However, the basis upon which Mr. Chau seeks the excision flows from an earlier ruling in these proceedings in which a tracking warrant of Mr. Nguyen’s phone number was set aside (See R. v. Chau, 2019 BCPC 200Voir Dire #1). Following the execution of that tracking warrant (now ruled to be invalid), the police investigation led them to these two residences. The impugned paragraphs in the present ITO are the fruits of that invalid warrant. Mr. Chau concedes that he has no reasonable expectation of privacy with respect to Mr. Nguyen’s phone number. Indeed, he did not participate in Voir Dire #1. Thus, the legal question to be answered is whether the impugned paragraphs should nevertheless be excised from the ITO as it pertains to residences over which Mr. Chau does have a reasonable expectation of privacy. In other words, can the police rely on actions which have been found by this Court in these proceedings to be in breach of Mr. Nguyen’s rights, in pursuing an investigation of Mr. Chau?

[2]           Mr. Jessop, on behalf of Mr. Chau, started with the general proposition that the state ought not be permitted to benefit from illegal acts of police officers. Once it is determined that certain actions were taken in contravention of the Charter, those actions should not form the basis or justification for further police investigations. Specifically in this context, it means that those paragraphs must be excised from an ITO. In support of this proposition, Mr. Jessop cites the trilogy of R. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263; and R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281.  Specifically at paragraph 26 of Plant, the court said:

The appellant alleged that the warrant issued in this case was invalid in that it was issued on the basis of an information containing improperly obtained and misstated factsThis Court has determined that peace officers cannot benefit from their own illegal acts by including in informations sworn to obtain warrants facts which were retrieved through searches without lawful authority. See Grant and Kokesch, supra. As such, in order to assess whether the search and seizure conducted under warrant in the case at bar were in violation of s. 8, it is necessary to determine whether the officers can be said to have had reasonable grounds to believe that a narcotic was contained in the appellant's residence in contravention of the NCA in the absence of the observations made during the warrantless perimeter search.  See reasons in Grant and Wiley, supra.  [Emphasis added.]

[3]           I do not have any difficulty with the general proposition that peace officers cannot benefit from their own illegal acts. However, I note that the trilogy above deals with perimeter search cases in which it was the accused’s rights who had been breached. They do not deal specifically with the question of whether an ITO may contain information obtained in violation of a third party’s rights.

[4]           To address this latter and more nuanced point, Mr. Jessop relies on the following cases:

R. v. Guindon, 2015 ONSC 4317

R. v. Ali-Kashani, 2017 BCPC 357

R. v. Mediati, 2018 ONCJ 164

R. v. Hibbert, 2019 ONSC 3219

R. v. Guilbride, 2003 BCPC 177

[5]           All of the above cases resulted in the excision of certain paragraphs in an ITO which had been found to be unconstitutional conduct on the part of the police in relation to someone other than the accused/applicant. In the case of Guilbride, the court alluded to the possibility of excision without having made that ruling.

[6]           The Crown, on the other hand, submits that the issue starts, and could very well end, with R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128. At paragraph 45, Cory J. said:

A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner:

1.   A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.

2.   Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra.

3.   The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.  See Pugliese, supra.

4.   As a general rule, two distinct inquiries must be made in relation to s. 8.  First, has the accused a reasonable expectation of privacy.  Second, if he has such an expectation, was the search by the police conducted reasonably.  See Rawlings, supra.

5.   A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.  See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.

6.   The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: 

(i)            presence at the time of the search;

(ii)         possession or control of the property or place searched;

(iii)         ownership of the property or place;

(iv)         historical use of the property or item;

(v)         the ability to regulate access, including the right to admit or exclude others from the place;

(vi)         the existence of a subjective expectation of privacy; and

(vii)        the objective reasonableness of the expectation.

[Emphasis added.]

[7]           In application to the case at bar, since Mr. Chau has no reasonable expectation of privacy with respect to Mr. Nguyen’s phone number, Mr. Chau has no standing to seek the excision of the paragraphs which flowed from police conduct which infringed on Mr. Nguyen’s constitutional rights.

[8]           Further in support of this position, Mr. Le Dressay, on behalf of the Crown, relies on the following cases:

R. v. Huynh, 2008 ABQB 464

R. v. Croft, 2013 ABQB 716

R. v. Ritchie, 2016 ONSC 1092

R. v. Nicholson, 2016 BCSC 1375

R. v. Vickerson, 2018 BCCA 39

R. v. Holmes, 2019 BCCA 138

[9]           The two conflicting lines of authorities are difficult, if not impossible to reconcile. Many of the judges in these cases have noted the difference of opinion. Some have attempted to reconcile the differences; some have simply acknowledged that there is a different viewpoint. But having reviewed the authorities, with attention paid to the level of court, jurisdiction, and recency, I have concluded that Vickerson and Holmes are determinative of the present application.

[10]        To understand the import of Vickerson on the case at bar, one must first be aware of two conflicting decisions that arose from the Supreme Court of British Columbia. In R. v. Todd, 2015 BCSC 680, the court concluded that an accused had no standing to attack the validity of a search that resulted in the breach of someone else’s Charter rights. In R. v. Brown, 2014 BCSC 1872, the court came to apparently the opposite conclusion. At paragraph 49 of Vickerson, the BC Court of Appeal said:

[49]        I wish to address briefly the Todd and Brown decisions. In Todd, Rogers J. applied the test found in Edwards, which is, as noted above, the correct approach to assessing whether there is standing to challenge a s. 8 Charter violation. In Brown[1], Funt J. conducted an analysis of the statutory meaning of “reasonable grounds” in coming to his conclusion that co-accused Manuel and Lambrecht had standing to challenge a violation of Brown’s rights. Suffice it to say that the analysis performed in that case should be restricted to that case. The Edwards framework, subsequently modified in Tessling and Patrick, is the appropriate context to determine if a person has standing to challenge a Charter violation.

[11]        This view was then reaffirmed in R. v. Holmes, 2019 BCCA 138.

[12]        Based on the above, I conclude that in order for Mr. Chau to have standing to apply to excise the impugned paragraphs from the ITO, he must have a reasonable expectation of privacy to Mr. Nguyen’s phone. Since he does not, it follows that the unconstitutional conduct as against Mr. Nguyen cannot be excised from the ITO as the case relates to Mr. Chau.

[13]        In fairness to Mr. Jessop’s argument, none of Todd, Brown, Vickerson, or Holmes dealt with excision of unconstitutional conduct from an ITO. They all deal with whether an accused has standing to make a s. 24(2) application to exclude evidence from the trial. Mr. Jessop is quite right in saying that the process of excision is distinct and different from a s. 24(2) analysis. In other words, in excision, the court does not embark upon the inquiry ordinarily mandated by R. v. Grant, 2009 SCC 32 and asks itself whether the admission of the impugned evidence would bring the administration of justice into disrepute. However, it does not follow from that proposition that excision is therefore automatic for everybody, regardless of whether his/her Charter rights had been breached. Indeed, I see no basis to ignore the principles enunciated in Edwards and Vickerson solely because excision, rather than exclusion, is being contemplated. That being so, and returning to the case at bar, I conclude that Mr. Chau cannot ask for excision of police conduct which violates not his, but Mr. Nguyen’s rights.

[14]        Mr. Jessop very ably urged the Court to draw one important distinction in the case at bar from the cases cited by the Crown, which is that this Court has already set aside the tracking warrant in relation to Mr. Nguyen’s phone number. Following Ali-Kashani, this Court cannot allow the unconstitutional conduct, even if perpetrated on someone else, to be the basis of a further police investigation in the same proceedings. At paragraph 46 of Ali-Kashani, the court said:

[46]        Surely, in a case where the trial judge has, within that very same case, made a determination that certain evidence was unlawfully obtained and then that impugned evidence was used to secure a further search warrant, an accused, whose privacy interests are affected by that further search warrant may seek excision of that illegally obtained evidence from the information to obtain that warrant.

[15]        With the greatest of respect to the court in Ali-Kashani, I decline to accede to that submission. In my view, Vickerson and Holmes have subsequently clarified the jurisprudential landscape and re-affirmed the Edwards approach on this issue.

[16]        The conclusion I have reached will also avoid two results that would be puzzling, if not troubling. Firstly, if Mr. Chau is permitted to seek excision based on a ruling that Mr. Nguyen’s rights were breached, then Mr. Chau’s constitutional rights would hang precariously on who ends up being a co-accused in these proceedings. Mr. Jessop has earlier conceded that Mr. Chau had no standing to attack the tracking warrant as it related to Mr. Nguyen’s phone number. And any number of events could have transpired which would have led to Mr. Nguyen and Mr. Chau not being co-accused at this trial. Some accused abscond. Some accused pass away. Some accused plead guilty. Sometimes the Crown decides not to proceed against a suspect. Sometimes severance is ordered by the court. Sometimes the Crown decides to proceed separately against two accused. It would be puzzling, or even troubling, that what constitutional rights Mr. Chau is entitled to depend so much upon what Mr. Nguyen and the Crown decide – something over which Mr. Chau exercises no control. That cannot be, in my view, what it means to have these constitutional rights.

[17]        Secondly, since Mr. Chau has no reasonable expectation of privacy in relation to Mr. Nguyen’s phone number, Mr. Chau would have no standing to apply pursuant to s. 24(2) for the exclusion of evidence related to the tracking warrant at trial. It would be puzzling, if not troubling, that Mr. Chau stands in a better position to seek the excision of the impugned paragraphs from an ITO than the exclusion of the evidence at trial. What is at stake in the former is the constitutionality of a search. What is at stake in the latter is guilt or innocence.

[18]        To avoid both these strange results, the better view is as enunciated in Vickerson and Holmes, and applied in Croft, Huynh, and Ritchie. In that scenario, Mr. Chau’s constitutional rights do not hinge on who is sitting beside him as a co-accused since the remedies available to him relate directly to whether his rights were violated.

[19]        Mr. Jessop makes the further point that Mr. Chau is not asking to embark upon a Garofoli application or seeking leave to cross-examine police officers who may have violated some third party’s constitutional rights, as was the case in R. v. Tran, 2016 BCPC 159. As in Ali-Kashani, a voir dire in this case has already been held and a ruling made. Mr. Jessop concedes that if that were the application, the jurisprudence dictates that that should be denied. However, one may ask rhetorically, if an accused may apply to excise the fruits of unconstitutional conduct as against a third party from an ITO, why should a Garofoli hearing be denied that accused? Why should that accused not be granted leave to cross-examine those police officers? Surely, an accused’s constitutional rights ought to afford him or her the ability to canvass those issues to advance a full answer and defence. When I approach the question from that perspective, I reaffirm my earlier conclusion that Mr. Chau cannot seek to excise the impugned paragraphs. The contrary view is much more dissonant with accepted jurisprudence.

[20]        I am, of course, mindful that there is a conflicting line of authority. In my view, Mr. Justice Rogers correctly captured the genesis of this disagreement in Todd, in reference to the Brown case. At para. 36, he said:

[36]        I do not wish to quarrel with Mr. Justice Funt or to disparage his reasons or conclusions. It may be for some higher authority to assess the correctness of his decision or mine. I would, however, like to point out that what distinguishes my approach to, essentially, the same problem as Funt J. faced is that I started with and focused on the relief the accused seeks whereas Funt J. concentrated on the process that led up to the claim for that relief. To put it simply, I have started from a proposition that the first test is to determine whether the accused can claim a Charter remedy whereas it appears that in Brown Mr. Justice Funt started with whether someone's Charter rights were violated and followed a chain of reasoning from there. On my reading of the case, in Edwards, the Supreme Court of Canada mandated the former approach rather than the latter.

[21]        Like all judges who have heard these cases, I, too, am concerned about the practical result of allowing police to benefit from unlawful conduct. We do not want a system in which investigative authorities are free to disregard the constitutional rights of citizens, as long as they are not the targets of their investigation. Nor should these reasons be taken to be an endorsement of such an approach. On the contrary, the courts should admonish unconstitutional conduct wherever they occur. However, in the case at bar, that admonishment will need to come in a form other than excision. For all of the above reasons, Mr. Chau’s application is hereby dismissed.

 

 

_______________________

The Honourable A. Tam

Provincial Court Judge