R. v. Tan

R. v. Tan

The court held there was no basis to find s.8 breaches in respect of hotel registration and airline ticketing records (commercial/public records) and refused Voir Dires No.1 and No.2; the Charter did not apply to evidence obtained in Malaysia absent evidence of consent to apply Canadian law (Malaysian fingerprints),...

Source-derived case information.

Citation
2010 BCSC 1948
Parties
Crown: Regina; Accused: Kien Beng Tan
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
15 December 2010
Procedural Posture
Criminal (second Degree Murder) / Trial Voir Dire Applications During Trial
Outcome
Applications for Voir Dire No.1 and No.2 dismissed; no voir dire required regarding Malaysian fingerprints; hotel telephone records not found to have nexus to taint other evidence; Cell‑plant evidence (Voir Dire No.4) admitted into evidence.
Legal Topics
Charter S.8 Unreasonable Search and Seizure, Charter S.7 and S.10(b) Issues, Extraterritorial Application of the Charter, Section 24(2) Exclusion of Evidence, Right to Silence and Cell‑mate (undercover) Operations, Reliability of Translated Transcripts, Statutory Record‑keeping (hotel Guest Registration Act)
Source Language
english
Criminal Law Constitutional Law Evidence Law Procedural Law Charter S.8 Unreasonable Search and Seizure Charter S.7 and S.10(b) Issues Extraterritorial Application of the Charter Section 24(2) Exclusion of Evidence +3 more

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Summary, issues, holding and outcome

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Parties

Regina

Crown

Kien Beng Tan

Accused

Procedural Posture

Criminal (second Degree Murder) / Trial Voir Dire Applications During Trial

Legal Issues

  1. 1 Whether hotel registration and airline ticketing records obtained without warrant engaged s.8 privacy protection
  2. 2 Whether hotel telephone records obtained from hotel without judicial authorization engaged s.8 and tainted subsequent evidence
  3. 3 Whether fingerprints taken in Malaysia by or with Canadian officers attract Charter scrutiny (extra‑territorial application)

Ratio Decidendi

The court held there was no basis to find s.8 breaches in respect of hotel registration and airline ticketing records (commercial/public records) and refused Voir Dires No.1 and No.2; the Charter did not apply to evidence obtained in Malaysia absent evidence of consent to apply Canadian law (Malaysian fingerprints), hotel telephone records lacked any causal or contextual nexus to taint later statements so a voir dire was unnecessary, and the cell‑mate plant statements were admissible because the conduct did not amount to elicitation or the functional equivalent of interrogation and translation concerns go to weight not admissibility.

Court Disposition

Applications for Voir Dire No.1 and No.2 dismissed; no voir dire required regarding Malaysian fingerprints; hotel telephone records not found to have nexus to taint other evidence; Cell‑plant evidence (Voir Dire No.4) admitted into evidence.

Orders

  • Voir Dire No.1 and Voir Dire No.2 dismissed
  • No separate voir dire to exclude Malaysian fingerprints under the Charter (Charter not applicable extraterritorially on present evidence)