R. v. Lee

2012 BCSC 1548 R. v. Lee IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lee, 2012 BCSC 1548 Date: 20121022 Docket: 31023-2 Registry: Williams Lake Regina v. Doug Lee Before: The Honourable Mr. Justice Romilly Ruling on a Voir Dire Sufficiency of Grounds for Arrest and Review of ITO Counsel for the Crown: Shelley Nixon Counsel for the Accused: Paul Briggs Place and Date of Hearing: Williams Lake, B.C. October 2 and 3, 2012 Place and Date of Judgment: Williams Lake, B.C. October 22, 2012 Table of Contents Paragraph Range CHARGES [1] - [1] NATURE OF APPLICATION [2] - [2] EVIDENCE AND FINDINGS OF FACT [3] - [27] SHOULD THERE BE SEPARATE VOIR DIRES? [28] - [31] BURDEN OF PROOF [32] - [33] DID CONSTABLE SMITH HAVE GROUNDS FOR THE WARRANTLESS ARREST OF THE ACCUSED? [34] - [46] i. The Law [34] - [40] (a) Summary of police powers of arrest [34] - [35] (b) The arrest of "Found-Ins" [36] - [36] (c) Search incident to arrest [37] - [40] ii. Decision on the Arrest Issue [41] - [46] RIGHT TO COUNSEL [47] - [69] i. Relevant Sections [47] - [69] (a) The nature and obligations under s. 10(b) [48] - [48] (b) The Meaning of "Without Delay" in section 10(b) of the Charter [49] - [53] (c) Duty of the detainee to be duly diligent after being advised of his rights [54] - [54] (d) Where the detainee does not speak the language in which the right was read to him [55] - [61] e) Burden of Proof [62] - [64] f) Decision on the right to counsel issues [65] - [69] ITO - ROLE OF REVIEWING JUDGE [70] - [75] i. Decision on the validity of the ITO [75] - [75] CONCLUSION [76] - [76] CHARGES [1] The accused is charged with two counts. Count 1 alleges that on June 12, 2010, he did produce a controlled substance: cannabis (marihuana). Count 2 alleges that he was in possession of a controlled substance, cannabis (marihuana), for the purpose of trafficking. NATURE OF APPLICATION [2] The accused argues that his rights under ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms have been infringed. He submits that these rights have been breached by: i. the unlawful detention and arrest of the accused Lee; ii. the failure of the police to allow the accused to be informed promptly of the reasons for his arrest under s. 10(a) and that he be allowed to exercise the implementational rights guaranteed to him under s. 10(b) of the Charter; iii the actions of the police in photographing and fingerprinting the accused prior to his being formally charged; and iv. the improper preparation of the Information to Obtain which the accused says does not contain sufficient grounds to warrant the issuance of a search warrant. For the reasons stated below, the applications are dismissed. EVIDENCE AND FINDINGS OF FACT [3] Constable K.R. Smith has been a member of the Royal Canadian Mounted Police (the "RCMP") since December 13, 2004. He is presently assigned to the General Duty Section of the 100 Mile House Detachment. I accept the evidence of Constable Smith that he has attended in excess of 25 marihuana grow operations since June 1, 2008, ranging in size from 350 plants to approximately 15,000 plants. I also accept his evidence that during the course of his duties with the RCMP he has learned to distinguish the difference between the smell of marihuana plants and the smell of burning marihuana. I accept his evidence that those two smells are distinct. [4] On October 13, 2009, Constable Smith spoke to Steven Giesbrecht by telephone. Steven Giesbrecht, who lives on a property adjoining the property on which the alleged marihuana grow operation was found (the "Property"), provided the following information to Constable Smith at that time: A. Mr. Giesbrecht had not seen anyone around the Property except an unknown male who comes and cuts the lawn. B. The lights upstairs in the main residence were always on. C. Mr. Giesbrecht had on several occasions at night noticed a skunky smell coming from the Property. D. Steven Giesbrecht believed the skunky smell to be green growing marihuana. [5] On October 28, 2009, at approximately 11:30 a.m., Constable Smith went to visit the Property. At that time, Constable Smith made the following observations from the roadway while on foot: A. The Property was located in a rural area. There was a commercial forestry building to the north of the property. There were no properties to the south. The eastside of the property backs onto railway tracks then Lac La Hache Lake. To the west is undeveloped forested land. B. The main residence had two visible stories. There was a detached garage to the east of the main residence. There was a small wood shed to the north of the main residence. C. The main residence was approximately 20 meters from the roadway. D. The interior lights were on upstairs in the main residence. E. The windows on the main residence were all covered with curtains. F. The weather was cool, clear, no wind, and approximately 0 degrees Celsius. G. There were no visible interior lights on in the outbuildings. H. The windows on the detached garage were all covered with a black plastic. I. There was no smell of growing marihuana coming from the Property. J. There was no visible people, animals, or vehicles on the Property. [6] On November 3, 2009, Constable Smith conducted a Land Registry search of the Property. That search revealed that the registered owners of the Property were Doug Lee (the same name as the accused) and Yan Mei Lu. [7] On January 4, 2010, at approximately 8:08 a.m., Constable Smith again observed the Property. On that date, Constable Smith made the following observations from the roadway while in a fully marked police patrol vehicle: A. The weather was light snow, approximately -3 degrees Celsius, and no wind. B. There were no vehicles in the driveway. C. There were no sounds coming from the Property. D. There were no lights on in the residence. E. There was no vehicle or foot tracks in the snow on the driveway. F. There were no people or animals visible on the Property. G. The snow appeared to be undisturbed since the first snowfall. H. There was no smell of growing marihuana coming from the Property. [8] On that same day, Constable Smith advised Steven Giesbrecht by phone that he was concluding the investigation of the Property. Steven Giesbrecht explained to Constable Smith why he believed the Constable's investigation was fruitless. The police file was closed. [9] On May 7, 2010, Steven Giesbrecht left a telephone message for Constable Smith stating the following: A. Steven Giesbrecht believed that the marihuana grow operation at the Property had started up again. B. Steven Giesbrecht noticed a skunky smell coming from the Property all the time. C. Vehicles attended the Property, usually in the early morning for short periods of time, approximately one to two hours. D. Steven Giesbrecht obtained licence plates of two vehicles that frequent the Property. E. These British Columbia licence plates were 928MHK and 891LBT. [10] On receipt of this information, Constable Smith did a motor vehicle registration search for these two vehicles. In that search he discovered that the vehicle with B.C. Licence No. 928MHK was registered to Li Yao Zhang, date of birth January 14, 1974, from Vancouver, B.C. The vehicle with B.C. Licence No. 891LBT was registered to Anam Tran, date of birth December 2, 1950, from Surrey, B.C. [11] On May 14, 2010, at approximately 1:55 a.m., Constable Smith again attended the Property. On that occasion he made the following observations while on foot: A. The weather was clear, approximately 9 Degrees Celsius, the roads were dry, there was a light wind from the north going south across the Property. B. Constable Smith determined the wind direction by observing the trees surrounding the Property. C. There were no visible vehicles, people or animals on the Property. D. Interior lights on the second storey of the main residence were on. E. From the north end of the property line Constable Smith could hear a loud humming sound coming from within the main residence. F. Constable Smith believed that the humming sound came from exhaust fans within the residence. G. Constable Smith did not notice the smell of green growing marihuana from the north end of the Property. H. Constable Smith walked south on the road and a smell of green growing marihuana was detected. I. As Constable Smith continued south, the smell of green growing marihuana increased. J. The smell of green growing marihuana was the greatest directly south of the Property. K. As Constable Smith walked north along the road, the smell of green growing marihuana diminished. At approximately 2:30 a.m., Constable Smith left the area of the Property. [12] On May 21, 2010, at approximately 1:15 p.m., Constable Smith again attended the Property at which time he made the following observations while on foot: A. The weather was partly cloudy, 9 degrees Celsius, light wind from the north to south across the Property, and the roads were dry. B. Constable Smith determined the wind direction by observing the trees surrounding the Property. C. Constable Smith walked to the eastside of the property line which is bordered by a large drop off. There was a large pile of red and white empty soil bags that had been discarded over the edge of the Property. D. Constable Smith walked to the south side of the Property. E. Constable Smith could smell a very strong odor of green growing marihuana coming from the Property. F. As Constable Smith walked north along the road the smell of green growing marihuana diminished. G. Constable Smith walked to the north side of the property and did not detect any odor of green growing marihuana. H. Constable Smith did not observe any people, vehicles, or animals on the property. [13] On June 2, 2010, at approximately 5:11 a.m., Constable Smith received a phone message from Steven Giesbrecht stating that the vehicle with licence plate 928MHK was currently at the Property. [14] On June 12, 2010, at approximately 5:15 a.m., Constable Smith again attended the Property at which time he made the following observations while on foot: A. The weather was partly cloudy, 7 degrees Celsius, a very light wind from the south to north direction across the Property, and the roads were dry. B. Constable Smith determined the wind direction by observing the fog lifting off Lac La Hache. C. Constable Smith did not see any vehicles, people, or animals. D. Constable Smith walked to the south side of the property line. E. Constable Smith could hear a loud humming sound coming from the residence, and did not detect any smell of green growing marihuana. F. Constable Smith walked to the east side of the Property. G. Constable Smith did not detect any smell of green growing marihuana. H. Constable Smith walked north side of the property. Constable Smith did not detect any smell of green growing marihuana. I. Constable Smith walked to the west side of the property. [15] At approximately 5:45 a.m., 30 minutes after he observed no vehicle in the driveway of the Property, Constable Smith observed a vehicle with licence plate 928MHK in the driveway of the Property. [16] At approximately 5:56 a.m. on the same day, Constable Smith spoke to Steven Giesbrecht who was walking past the Property. He confirmed that the vehicle in the driveway was the same vehicle he had observed at the Property several times before. [17] At approximately 6:05 a.m. on June 12, 2010, Constable Smith, who was in full police uniform, went to the northwest side of the Property and made the following observations while on foot: A. He could now smell a mild odour of green growing marihuana coming from the Property. B. The humming sound had stopped. C. At approximately 06:30 hrs an Asian male with black hair came out of the downstairs door of the main house and locked it with a deadbolt. D. The male got into the vehicle and drove off the property. [18] At approximately 6:35 a.m., Constable Smith stopped the suspect vehicle at approximately 30 metres from the Property. At that time, Constable Smith made the following observations: A. The driver's side window was rolled down. B. The male that Constable Smith saw leaving the residence on the property was the only occupant in the vehicle. C. When the male saw Constable Smith he slumped his shoulders and dropped his head onto the steering wheel. [19] Constable Smith placed the male under arrest for production of a controlled substance and possession for the purpose of trafficking marihuana. The male, the accused, was searched as an incident of his arrest. In his pocket there were two sets of house keys, money, and a wallet with a B.C. driver's licence. The driver's licence identified the male as Doug Lee, one of the registered owners of the Property. At the time of his arrest, Constable Smith could smell an odour of green growing marihuana coming from Doug Lee's person. The keys that were found on the accused's person as a result of the search incident to his arrest were used by the police to gain access to the residence on the Property after the police obtained a warrant to search the premises. [20] On his arrest, Constable Smith advised the accused that he was under arrest for production of marihuana. [21] After the pat down search of the accused, Constable Smith placed the accused in the back of the police car and proceeded to read him his ss. 10(a) and 10(b) Charter rights in English. After reading the s. 10(a) rights to the accused, the accused was asked if he understood; he shook his head as if he did not understand. Constable Smith continued reading the accused's s. 10(b) rights in English. The accused was again asked if he understood, at which time he answered "a little". He then told Constable Smith, "I could call a friend that could help me call a lawyer". Constable Smith then read the accused the official police warning to which the accused said, "I understand". [22] According to Constable Smith, the accused then asked him to retrieve a bottle of water from his car for him. Constable Smith noticed that the accused's English seemed to improved as time went on. Constable Smith testified that he could not give the accused immediate access to a lawyer because cell phone reception in that rural area was very poor. Constable Smith and the accused waited for the arrival of Constable Breze, who was called to stay at the scene to ensure that no one entered or left the Property before a warrant could be obtained to search the Property. Constable Breze arrived at the scene of the accused's arrest at 7:15 a.m. [23] At 7:45 a.m., the accused was taken into the phone room at the RCMP, shown the phone and again advised of his right to call duty counsel. Constable Smith testified that the accused had no difficulty understanding his rights at this stage. The accused told Constable Smith that he would use his own cell phone to call a friend to call a lawyer for him. Constable Smith left the accused in the phone room with his cell phone and the office land line phone. At 8:04 a.m., Constable Smith knocked on the door of the phone room and asked the accused if his lawyer had called him yet. The accused replied "no". [24] While waiting for the accused to access counsel, Constable Smith went onto the internet and retrieved two Chinese translations of the accused's ss. 10(a) and 10(b) rights, one in Cantonese and one in Mandarin. Constable Smith asked the accused which version he understood. The accused chose the Cantonese version. The Cantonese version of the accused's ss. 10(a) and 10(b) rights were then left with the accused. [25] At 9:10 a.m., Constable Smith again knocked on the door of the phone room. He asked the accused if his friend had returned his call. The accused said "no". Constable Smith then locked the accused in a cell together with his cellular phone. No statements were taken from the accused. The accused was released at approximately 4:15 p.m. Before his release, he was asked by Constable Smith if he would consent to having his fingerprints and photograph taken. The accused consented and his fingerprints and photograph were taken prior to the accused's release from custody. [26] The accused called no evidence on this voir dire. [27] Before dealing with the main issues that have been raised on this application, I propose to deal with a preliminary matter that was raised at the outset of the application. Defence counsel argues that I should hold three separate voir dires: one to deal with the issue of sufficiency of ground for arrest; one for dealing with the alleged breach of the accused's right to counsel; and another for the review of the search warrant. SHOULD THERE BE SEPARATE VOIR DIRES? [28] It is my view that one voir dire should be held to deal with all of the Charter issues raised by defence counsel. [29] The issue of whether to have separate or joint voir dires is often seen in criminal trials nowadays. It must be remembered that a voir dire is a trial within a trial. In my view, there is nothing wrong with dealing with various issues on the same voir dire. As I deal with this preliminary issue, I am reminded of the words of Finlayson J.A. in R. v. Durette (1992), 72 C.C.C. (3d) 421 at 440 (Ont. C.A.), reversed on appeal on other grounds [1994] 1 S.C.R. 469: Unless we, as courts, can find some method of rescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with our traditional adversarial system of justice. As Jonathan Swift might have said, we are presently sacrificing justice on the shrine of process. [30] In R. v. Erven (1978), 44 C.C.C. (2d) 76 at 88 (S.C.C.), Dickson J. (as he then was) reminds us of the function of the voir dire. He wrote: The function of the voir dire is to determine admissibility of evidence. The function of the trial is to determine the merits of the case on the basis of admissible evidence. [31] I now intend to deal with the issue of the warrantless arrest of the accused. Defence counsel argues that while Constable Smith may have had sufficient grounds for the investigative detention of the accused, he did not have sufficient grounds for the warrantless arrest of the accused. The defence submits that as a result of this illegal warrantless arrest, the accused was arbitrarily detained contrary to s. 9 of the Charter. Defence counsel further argues that if the accused's arrest was illegal, then the search incident to his arrest is also illegal. Consequently, the keys and other items that were seized by Constable Smith from the person of the accused should be excluded under s. 24(2) of the Charter. BURDEN OF PROOF [32] Generally, the onus is on the accused to establish a Charter breach on a balance of probabilities, with a few exceptions. The accused has the initial burden of presenting evidence that his Charter rights were infringed: R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) at 13-14; and R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.) at 295. Examples of when the onus is shifted to the Crown from the accused are: (a) where agents of the state conduct an unreasonable search: Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.); and (b) where the Crown wishes to establish "an unequivocal waiver" of his right to counsel: R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C.) at 379. [33] The accused did not call evidence on this voir dire. DID CONSTABLE SMITH HAVE GROUNDS FOR THE WARRANTLESS ARREST OF THE ACCUSED? i. The Law (a) Summary of police powers of arrest [34] In his usual thorough manner, in R. v. Cunsolo, [2008] O.J. No. 3754 (Sup. Ct. J.), Hill J. reviewed a summary of police powers for arrest. I will paraphrase his enumerated considerations thusly: 1. An accused has the burden of proving, on a balance of probabilities, that his or her arrest was unlawful or a violation of s. 9 of the Charter. 2. Pursuant to s. 495 of the Criminal Code, a peace officer may arrest a person without a warrant if he has reasonable grounds to believe that the person has committed an indictable offence or is committing a crime. 3. It is important for the police to demonstrate they had reasonable and probable grounds upon which to base the warrantless arrest. 4. Those grounds must have been both subjectively and objectively reasonable and probable. 5. The information on which the grounds are based must be assessed for its credibility and reliability. The reasonable assessment must be done in the entire context of the circumstances. 6. A reviewing court must remember that a trained officer is entitled to draw inferences and make deductions drawing on their experience. 7. Often the police are required to make quick decisions in volatile situations. The standard required of the officer's decision is not as demanding as for a justice faced with an application for a search warrant. 8. Credibly-based probability is to be used by the officer. He need not establish a case for conviction in order to have reasonable and probable grounds for arrest. 9. Occasionally, an officer may rely solely on an order or direction from another officer. 10. Sometimes, a police officer's grounds will fall short of being objectively reasonable and probable. If the officer had a reasonable suspicion that an individual was involved in a criminal offence, that may be enough to justify investigative detention of the individual. 11. It is not necessarily true that every unlawful detention or arrest is arbitrary. [35] The last point on the list above is no longer correct. This is so because in R. v. Grant, 2009 SCC 32, McLachlin C.J.C. and Charron J. wrote at para. 55: Earlier suggestions that an unlawful detention was not necessarily arbitrary (see R. v. Duguay (1985), 18 C.C.C. (3d) 289 (Ont. C.A.)) have been overtaken by Mann, [2004 SCC 52, [2004] 3 S.C.R. 59] in which this Court confirmed the existence of a common law police power of investigative detention. The concern in the earlier cases was that an arrest made on grounds falling just short of the "reasonable and probable grounds" required for arrest should not automatically be considered arbitrary in the sense of being baseless or capricious. Mann, in confirming that a brief investigation based on "reasonable suspicion" was lawful, implicitly held that a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9. Therefore, if an officer acts without at least a reasonable suspicion, a detention is unlawful, and is arbitrary within s. 9 of the Charter. (b) The arrest of "Found-Ins" [36] In R. v. Whitaker, 2008 BCCA 174, leave to appeal ref'd [2008] 3 S.C.R. x., Frankel J.A., for the court, had to deal with the legality of an arrest of "found-ins" in a marihuana grow operation. I find his analysis to be extremely helpful in assisting me in dealing with whether the arrest of the accused was lawful. He stated: [55] In my view, the only conclusion that can be reached on the evidence presented on the voir dire is that Mr. Whitaker, Mr. Jackson, and the other men found standing by the detached garage, were arrested simply because they were there. When the police entered onto the Whitaker property, Mr. Whitaker was as much a stranger to them as were Mr. Jackson and the others. With due regard to the deference owed to findings made at trial, discussed in such cases as R. v. Clark, [2005] 1 S.C.R. 6, 2005 SCC 2 (at para. 10), I have concluded that the trial judge misapprehended the evidence and committed a palpable and overriding error in proceeding on the basis that Constable McKee and Constable Toomer knew, or had reasonable grounds to believe, that the person they were arresting was the Patrick Desmond Whitaker under investigation. Absent such knowledge or belief, they lacked objective grounds to arrest Mr. Whitaker. [56] The Crown, in advancing its alternative position, submits that the police had the authority to arrest every adult person found on the Whitaker property for the following reasons: (a) the police had reasonable grounds to believe that drug-related criminal activity was taking place on the property; and (b) in the days prior to the execution of the search warrants the police had observed a number of vehicles coming and going from the property which were registered to persons with convictions for drug-related and other crimes, and / or to persons recently suspected of drug-related and other criminal activity. In support of its argument, the Crown relies on R. v. Le, 2006 BCCA 463, 231 B.C.A.C. 219 ("Le (2006)"), and R. v. Shokar, 2006 BCSC 770. ... [59] The authorities relied on by the Crown are distinguishable. In Le (2006), the police arrested someone whom they believed had just spent the night in, and was departing from, a house containing a marihuana grow operation. They also had grounds to believe this person had previously visited the house, and that the house was not being used as a residence. It was this combination of factors that led Madam Justice Kirkpatrick to conclude that the police had both subjective and objective grounds to arrest: paras. 21 - 27. ... [60] The fact that a person is at, or inside, a place believed to contain drugs, and in respect of which a search warrant has been issued, does not, without more, provide objective grounds for his or her arrest. The police are not entitled to arrest first and then determine whether the person arrested is connected to the offence(s) under investigation. ... (c) Search incident to arrest [37] Lamer C.J., writing in R. v. Caslake, [1998] 1 S.C.R. 51, set out the requirements necessary to establish a lawful search that is incident to arrest: [19] As L'Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. ... [25] In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation. This approach was cited with approval by the Court in R. v. Nolet, 2010 SCC 24, at para. 49. [38] The legal framework for the inquiry into the legality of a search incident to an arrest without a warrant was described in R. v. Bracchi, 2005 BCCA 461 at para. 4: [4] A search incidental to arrest will be valid if the arrest out of which it arose was valid. ... The warrantless arrest in this case was authorized by s. 494 of the Criminal Code so long as the arresting officer believed on reasonable grounds that the respondent was in the course of committing an indictable offence. [39] In R. v. Besharah, 2010 SKCA 2, 72 C.R. (6th) 277, Smith J.A. for the court made clear that the onus was on the Crown to prove reasonable and probable grounds for arrest in order to justify a warrantless search incident to arrest. Smith J.A. wrote: [35] In summary, it is my view that the logic of the approach taken in other cases by the Supreme Court of Canada in other circumstances applies with equal force to the circumstances of the case before us. Where the lawfulness of the police arrest is put at issue on a Charter challenge, as it was here, the onus must fall on the Crown through police witnesses to establish that the police had subjectively and objectively reasonable and probable grounds for the arrest, for, as a practical matter, this proposition is asserted and relied upon by the Crown and is within the peculiar knowledge of the police. Thus, fairness requires that the burden of proving this matter fall on the Crown and that the accused have an opportunity to challenge the police evidence by way of cross-examination. [40] Smith J.A. went on to say that this logic applies when the search is incident to arrest, and whether or not the arrest is being challenged under s. 9 of the Charter. ii. Decision on the Arrest Issue [41] Applying the law as enunciated above to the facts found on this voir dire, there is no doubt in my mind that Constable Smith's subjective belief that he had reasonable grounds for the arrest of the accused is objectively reasonable. The accused was not a "found- in" as in Whitaker. Constable Smith had spent many days watching the residence on the Property. He also saw the accused exercising control of the residence on the Property by coming out of it and using the deadbolt to lock it. In addition, Constable Smith, making certain inferences based on his experience with marihuana grow operations, had not only heard the sound of fans coming from the residence, but also had noticed the smell of growing marihuana coming from the residence on the Property. [42] I therefore find that the arrest of the accused by Constable Smith was lawful. [43] Because I have found that the arrest of the accused was lawful, in the circumstances that existed in this case, I also find that the search of the accused incident to his lawful arrest is lawful. [44] Additionally, I have found that the accused was informed promptly and properly of the reasons for his arrest. There was no s. 10(a) Charter breach. [45] I now turn to the alleged breach of the accused's right to counsel under s. 10(b) of the Charter. Defence counsel argued that Constable Smith did not ensure that the accused understood enough English to understand his right to counsel. They also argued that the accused was not allowed to exercise his right to counsel without delay. Lastly, defence counsel argued that Constable Smith failed to ascertain whether the accused had exercised his right to counsel before he obtained his consent to take his photograph and fingerprints. [46] In order to deal with these issues, it is prudent for me to canvass the law on the right to counsel. RIGHT TO COUNSEL i. Relevant Sections [47] Sections 10(a) and (b) of the Charter state: 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right. (a) The nature and obligations under s. 10(b) [48] Justice Berger in R. v. Luong, 2000 ABCA 301 at para. 12, provided a useful consolidated restatement of the nature and obligations that result from s. 10(b) of the Charter: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charter has been infringed or denied. 2. Section 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances)". R. v. Bartle (1994), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishing that he was reasonably diligent in the exercise of his rights. R. v. Smith, (1989), 50 C.C.C. (3d) 308 (S.C.C.) at 315-16 and 323. 10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, the implementation duties either do not arise in the first place or will be suspended. [Citations omitted.] In such circumstances, no infringement is made out. 11. Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is required to prove a valid waiver of the right to counsel. In such a case, state authorities have an additional informational obligation to "tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79. Absent such a warning, an infringement is made out. (b) The Meaning of "Without Delay" in section 10(b) of the Charter [49] Section 10(b) of the Charter is engaged immediately upon detention of an individual by the state. That section gives a detainee the right to retain and instruct counsel "without delay", and to be informed of that right. [50] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, McLachlin C.J.C. and Charron J. wrote: [41] A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. [42] In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [51] Therefore, the words "without delay" mean "immediately" for the purposes of s. 10(b), subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter. [52] In R. v. Montgomery, 2009 BCCA 41, the Court of Appeal upheld convictions for possession of cocaine for the purpose of trafficking, improper storage of a firearm, and possession of a prohibited firearm. Mr. Montgomery alleged the police did not have sufficient grounds to detain him, that his right to counsel was violated and that a subsequent search of his residence violated his s. 8 rights. The court found there were adequate grounds for his detention in light of an informant's information; the police had called the number provided by the informant to initiate a drug sale. Mr. Montgomery was not allowed to contact counsel at the arrest scene. The court agreed with the trial judge that it was neither reasonable nor practical to allow Mr. Montgomery to use a cell phone at the scene of his arrest as he was believed to be associated with a violent organization and it would have been difficult for police to ensure the call was not used for an improper purpose. [53] Mr. Montgomery also took issue with the fact that he was not provided with a phone for three hours after he arrived at the police station. The court upheld the trial judge's finding that Mr. Montgomery was provided access to counsel as soon as was reasonably possible in all the circumstances because the police station had only one private phone for conversations with lawyers, the arrest involved three other people, and the police were also dealing with an unrelated matter. As no other breaches had been found, there was no breach of s. 8 for the subsequent search of Mr. Montgomery's residence pursuant to a warrant. (c) Duty of the detainee to be duly diligent after being advised of his rights [54] In R. v. A.R.M., 2011 ABCA 98, the court stated: [43] The informed detainee has to be duly diligent about his right to consult with counsel. Due diligence is applied to the decision of a detainee whether to contact counsel and to the manner in which the detainee behaves: R. v. Tremblay, [1987] 2 S.C.R. 435, 37 C.C.C. (3d) 565 at para. 9; R. v. Richfield (2003), 178 C.C.C. (3d) 23, 14 C.R. (6th) 77 (C.A.) at paras. 6 to 13 (and cases cited therein); R. v. Luong (2000), 149 C.C.C. (3d) 571, 271 A.R. 368, 2000 ABCA 301 at para. 12; Sinclair, 2010 SCC 35], at para. 27; Willier, [2010 SCC 37, [2010] 2 S.C.R. 429] at paras. 32 to 35. (d) Where the detainee does not speak the language in which the right was read to him [55] In R. v. Michaud (1986), 45 M.V.R. 243 (Ont. Dist. Ct.), Stortini J. dealt with the situation where the detainee does not speak the language in which the right was read to him. He stated at 249: If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances. See also R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.); and R. v. Lim (No. 3) (1990), 1 C.R.R. (2d) 148 (Ont. H.C.). [56] In R. v. Barros-DaSilva, 2011 ONSC 4342 at para. 24, Tulloch J. (as he then was) emphasized that where there are "special circumstances", a police officer must take further steps to reasonably ascertain that the accused understands their Charter right to counsel. [57] In Vanstaceghem at 148, the Ontario Court of Appeal adopted the comments of Stortini J. in Michaud at 248-9, where he stated the following: The police may not be required to go to extreme means in order to respect an accused's rights under s. 10 of the Charter. It is necessary, however, in order to comply with the section that an accused be meaningfully informed of the rights. The accused must understand what is being said to him or her and understand what the options are in order that he or she may make a choice in the exercise of the rights guaranteed by the Charter. It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As s. 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights. If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances. [Emphasis added.] [58] The question of whether "special circumstances" exist is one of mixed fact and law: see R. v. Shmoel, [1998] O.J. No. 2233 (Ct. J. (Prov. Div.)). [59] "Special circumstances" arise when there are objective indicia that an accused person does not wholly comprehend the English language. An example of an indicator would be the accused's recent immigration to Canada from a non-English speaking country. In those "special circumstances", the police must take meaningful steps to ensure that the accused actually understands his or her constitutional rights. See R. v. Silva, 2005 ONCJ 2. [60] Some examples of "special circumstances" were given by Gage J. in Silva at para. 11: 1. A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect "I don't speak the best English": R. v. Lukavecki, [1992] O.J. No. 2123; 2. The necessity of speaking slowly to an accused who speaks English "a little bit": R. v. Ly [1993] O.J. No. 268; 3. A negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused: R. v. Lim, [1993] O.J. No. 3241, per Bigelow J. (O.C.J.); 4. The failure to honour the accused's request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v. Ferreira, per Wren J. (S.C.J.) dated Dec. 6, 1993; 5. Knowledge that the first language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel: R. v. Shmoel, [1998] O.J. No. 2233. [61] That the police officers subjectively believed the accused to comprehend his rights is insufficient; "special circumstances" may still have existed: see Vanstaceghem, at 148-9; Shmoel, at para. 9; R. v. Lukavecki, [1992] O.J. No. 2123 (Ct. J. (Gen. Div.)); R. v. Oliva Baca, [2009] O.J. No. 1926 (Ct. J.) at para. 2; and R. v. Peralta-Brito, [2008] O.J. No. 81 (Ct. J.). e) Burden of Proof [62] I discussed the burden of proof with respect to the right to counsel in R. v. Nakamura, 2011 BCSC 1443 at para. 22. [63] In R. v. Bartle, [1994] 3 S.C.R. 173, 92 C.C.C. (3d) 289 at 313-17, Lamer C.J.C. discussed the issue of burden of proof under s. 24(2) of the Charter as it applies to right to counsel cases. He stated that although the applicant seeking exclusion of the impugned evidence bears the ultimate burden of persuasion in satisfying the court on a balance of probabilities that the admission would bring the administration of justice into disrepute, the burden on particular contested issues will shift to the Crown. As an example, once the accused satisfies the burden of showing that his or her right to counsel under s. 10(b) has been infringed, the burden then shifts to the Crown to establish that the applicant would not have conducted himself differently if there had been no violation and that the evidence would have been obtained in any event. At 316 of Bartle, Lamer C.J.C. stated: Section 24(2) applicants thus do not bear the burden of proving that they would have consulted counsel had their s. 10(b) rights not been infringed. Of course, once there is positive evidence supporting the inference that an accused person would not have acted differently had his or her s. 10(b) rights been fully respected, a s. 24(2) applicant who fails to provide evidence that he or she would have acted differently (a matter clearly within his or her particular knowledge) runs the risk that the evidence on the record will be sufficient for the Crown to satisfy its legal burden (the burden of persuasion). Although at p. 423 of my reasons in R. v. Schmautz, [1990] 1 S.C.R. 398, I implied that the burden of proof on this issue rested upon the accused, upon further reflection I have decided that the approach I have adopted here is to be preferred. See also R. v. Harper (1994), 92 C.C.C. (3d) 423 (S.C.C.). [64] Again, I note here that the accused did not call any evidence on this voir dire. This is especially important with respect to the issue of whether Mr. Lee understood his right to counsel, since the presence of "special circumstances" is very fact dependent. f) Decision on the right to counsel issues [65] In my view, it was neither reasonable nor practical to allow the accused to use a cell phone at the scene of his arrest. In this regard, I accept the evidence of Constable Smith that the cellular reception was poor in the rural area where the accused was arrested. In the circumstances that existed in this case, I am satisfied that Constable Smith gave the accused access to a telephone to contact legal counsel as soon as it was practicable to do so. [66] In this case I find that the accused was not diligent in exercising his right to counsel once he was advised of the right. As was pointed out in A.R.M., the informed detainee has to be duly diligent about his right to consult with counsel. Due diligence is applied to the decision of a detainee whether to contact counsel and to the manner in which the detainee behaves. [67] From the evidence adduced on the voir dire, it is clear that the accused understood some English. In my view, Constable Smith took the additional step of ensuring that the accused understood these rights by giving him his s. 10(a) and (b) Charter rights in a written form in Cantonese. [68] On the basis of the foregoing, I find that there was no breach of the accused's rights under ss. 10(a) or 10(b) of the Charter. The photograph and fingerprints of the accused were not used to incriminate him. The issues pertaining to the photograph and fingerprints are moot. [69] The last issue with which I am asked to deal, in what seems to be an obstacle course, is a challenge of the validity of the Information to Obtain (the "ITO"). Defence counsel submits that the reference in the affidavit in support of the ITO to a "very strong" smell of growing marihuana coming from the accused's person on his arrest is misleading. Defence counsel submits that nowhere in Constable Smith's notes is there any reference to that smell of growing marihuana on the accused's person being "very strong". Crown counsel agrees that the reference to the words "very strong" should be excised from the affidavit in support of the search warrant. ITO - ROLE OF REVIEWING JUDGE [70] In R. v. Arsenault, 2009 NBCA 29, 344 N.B.R. (2d) 113, Richard J.A., writing for a unanimous panel, enunciated as follows the principles governing a trial judge's ITO review to determine the warrant's sub-facial validity at para. 5: 1) A trial judge's review must be undertaken from the standpoint that the impugned search warrant and the ITO are presumed valid; 2) The burden rests on the challenger to satisfy the reviewing judge that the ITO does not comply with the substantive requirements set by law; 3) The reviewing court must not assess the substantive quality of the ITO by confining itself to the evidence which is explicitly set out in it. The court must bear in mind the undoubted power of the issuing judge to draw reasonable inferences from such explicitly stated evidence; 4) The assessment by the reviewing court must take into account the totality of the ITO, interpreting its constituent parts in context; 5) An overly strict interpretation of the words used in the ITO is not warranted by the jurisprudence, or by s. 8 of the Charter, but the reviewing court must remain vigilant and not allow its tolerance for drafting errors or deficiencies to extend to material omissions with respect to substantive requirements; 6) Ultimately, where the ITO does not expressly or by implication disclose the required reasonable grounds, the resulting warrant cannot be said to have been properly issued; 7) Where the evidentiary record before the reviewing judge is not materially different from the record before the issuing judge, the test on review is whether there was some evidence before the issuing judge upon which that judge could, acting judicially, issue the warrant to search; 8) However, where the record that can be considered by the reviewing court is materially different from the record before the issuing judge, such as where material parts of the ITO have been excised, the test on review is whether the warrant would have issued on the basis of the evidence which remains; 9) Where the evidentiary record before the reviewing court is materially less significant than the record before the issuing judge, there is no longer any principled justification for deference and it is up to the Crown to satisfy the reviewing judge that the warrant would have issued on the basis of the remaining evidence. [Emphasis added.] [71] In R. v. Ebanks, 2009 ONCA 851, MacPherson J.A., for the court, wrote: [21] The sole function of the reviewing court is to assess the record that was before the issuing judge, as amplified on review, and determine whether the authorization could have issued. This review has nothing to do with whether the reviewing court would have issued the authorization, as a Garofoli application at trial must not become a hearing de novo: see Garofoli at p. 1452. Nor is the review to take on the markings of a trial, where the truth of allegations is explored. As noted by Charron J. in R. v. Lising, [2005] 3 S.C.R. 343 (S.C.C.), at para. 30, "the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order" (emphasis in original). [72] In R. v. Garofoli, [1990] 2 S.C.R. 1421, Sopinka J. summarized the standard of review at 1452: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [73] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, Fish J., for the majority explained that: [40] ... The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. [41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence - that is, additional evidence presented at the voir dire to correct minor errors in the ITO - so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice. [42] It is important to reiterate the limited scope of amplification evidence... Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as "a means of circumventing a prior authorization requirement" (Araujo, at para. 59). [43] Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "some minor, technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made" such errors (para. 59). In all cases, the focus is on "the information available to the police at the time of the application" rather than information that the police acquired after the original application was made (para. 59). [74] The dicta of Deschamps J. in Morelli, is helpful in understanding the standard of review. Although she was writing for a minority of three out of seven justices of the Supreme Court of Canada, the following comments are not inconsistent with the majority reasons: [129] Determining whether evidence gives rise to a "credibly-based probability" does not involve parsing the facts or assessing them mathematically. Rather, what the judge must do is identify credible facts that make the decision to authorize a search reasonable in view of all the circumstances. I therefore agree with the non-technical, common-sense approach ... i. Decision on the validity of the ITO [75] After excising the words "very strong" from the affidavit in support of the ITO, there remains sufficient evidence justifying the issuing of the search warrant. In the result, the defence motion on this issue fails. CONCLUSION [76] On the basis of the foregoing, the applications made by the defence on this voir dire are dismissed. "Romilly J."