R. v. Tse

2008 BCSC 1666 R. v. Tse IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Tse, 2008 BCSC 1666 Date: 20081203 Docket: 23900 Registry: Vancouver Regina v. Yat Fung Albert Tse, Viet Bac Nguyen, Nhan Trong Ly, Daniel Luis Soux, Huong Dac Doan, and Myles Alexander Vandrick Before: The Honourable Mr. Justice Davies Final Ruling on O'Connor Application for Disclosure of R.C.M.P. "O" Division Files Concerning Wei Don (Michael) Li Counsel for the Crown: J.C. Bellows, Q.C. A. Adams S.P. Lakshman Counsel for the Accused, Tse: S.R. Buck Counsel for the Accused, Nguyen: R.C. Claus Counsel for the Accused, Ly: B.V. Bagnall Counsel for the Accused, Soux: I. Donaldson, Q.C. Counsel for the Accused, Doan: K.S. Westlake, Q.C. Counsel for the Accused, Vandrick: T.B. Doust Counsel for the Royal Canadian Mounted Police "O" Division and the Department of Justice of Canada E. Resnick Date and Place of Trial/Hearing: Vancouver, B.C. [1] On November 6, 2008, upon application by the accused under the procedure established by the Supreme Court of Canada in R. v. O'Connor, [1995] 4 S.C.R. 411 [O'Connor], I ruled that the accused had met the threshold test of establishing the likely relevance of two files of "O" Division of the Royal Canadian Mounted Police ("O" Division) concerning an important Crown witness, Wei Dong (Michael) Li, to issues in this trial. [2] The two files were identified on the application and by my ruling as File Nos. 2004-1707 and 2004-6674. [3] As a consequence of that ruling and my concurrent requests of Ms. Resnick as counsel for "O" Division, I was, on November 21, 2008, provided with two sealed copies of the two files together with Confidential Submissions on behalf of "O" Division. [4] At my request both copies of the two files were page numbered sequentially, and one copy of each file had also been highlighted by counsel, to identify three bases upon which "O" Division submitted that the documents should not be produced in this litigation under the second stage of an O'Connor analysis. The highlighting methodology employed by counsel was that: (1) documents identified as being "not relevant" were highlighted in green; and (2) documents that were considered "Third Party Private Information" that in the opinion of "O" Division ought to be precluded from disclosure, despite its relevance, or if found relevant were either highlighted in yellow or blacked. [5] So that I could assess whether redaction concerning information that had been blacked was necessary, I was also provided with another "working" copy of the original "unmarked" files. In addition, I was provided with an additional copy of pages 53, 63, 65, 69 and 70 of File No. 20054-1707 as a "working copy" of those pages that, in the submission of "O" Division, were the only pages from the two files that were even minimally probative of the relationship between the complainant Peter Li and the witness Michael Li upon which the accused based this O'Connor application. [6] Counsel for "O" Division counsel also advised in her Confidential Submissions that: (1) Pursuant to my order of November 6, 2008, Michael Li was advised that I had ordered the production of the two files for consideration under the second stage of the accused's O'Connor application, and was asked if he wished to make any submissions to the Court. (2) Michael Li responded through his parole supervisor that he did not want any of the information in the files released, but that if any information was released, he wanted all information identifying him "withheld from the Defence (i.e. information identifying his location, address or phone number etc)." He also responded that "if any information is released to the Defence, he would like to receive a copy of that material" through Ms. Resnick. (3) Information concerning Peter Li has been treated as third party information as no application had been made to disclose this information and Peter Li has had no opportunity to make submissions concerning its release. [7] After receipt of all of the aforementioned information, I had the "Unmarked Original" but numbered compilation of each sealed, and marked as exhibits on this O'Connor application. [8] I then reviewed the highlighted copies of the two files and considered the Confidential Submissions of counsel for "O" Division. In doing so I had in mind the considerations that govern the second stage of an O'Connor application. Specifically, I considered: (1) the extent to which the documentation sought is necessary for the accused to make full answer and defence; (2) the probative value of the documentation; (3) the nature and extent of the reasonable expectation of privacy invested in the documents; (4) whether production of the documents would be premised upon any discriminatory bias or belief; and (5) the potential prejudice to the witnesses' dignity, privacy or security of the person that would be occasioned by the production of the documents. [9] I considered not only the privacy and security issues affecting Michael Li, but also those concerning other third parties identified by the documentation. In addition, I considered privacy and privilege issues advanced by "O" Division in respect of their own confidential interests in the information and documentation contained within the files. [10] After that review, I requested further submissions from counsel for "O" Division and the accused before being able to complete the second stage of the O'Connor analysis on this disclosure application. I did so by way of a Memorandum to Counsel that has been filed in this proceeding because: (1) I was concerned that Crown counsel and defence counsel should be aware of the basis upon which otherwise potentially relevant information or documentation might be withheld; (2) I required submissions related to the positions advanced by Michael Li; and (3) I was satisfied that Peter Li should have notice of this application so that he may make any submissions he may wish to make concerning the disclosure of information in the files pertaining to him. [11] A copy of my Memorandum to Counsel dated November 26, 2008, is attached as Schedule A to these Reasons for Judgment. That Memorandum includes my preliminary review of the files that were produced by "O" Division pursuant to my original order. [12] I have now received the further submission of counsel for "O" Division who has indicated that her client accepts that the editing concerns I have identified do not adversely affect the privacy rights the original editing sought by "O" Division had intended to protect. [13] Ms. Resnick did, however, advise me that while Michael Li had confirmed through his parole supervisor that the residential address referred to in the documents was no longer current, he still wished to have it removed because it was "personal" information. I am not persuaded that in the totality of the circumstances those very limited privacy interests require the editing of that old address which "O" Division initially sought. [14] I was also informed by counsel for one of the accused that his informal contact with Peter Li's counsel led him to believe that Peter Li would not likely be seeking to make any submissions concerning editing of documents to preclude information specifically referring to Peter Li. From other evidence and information which I have gleaned from my role as the trial judge in this proceeding, I am satisfied that no personal addresses contained in the documentation that I consider otherwise disclosable, pursuant to this second stage O'Connor analysis, are either current or could tend to indicate the present whereabouts of Peter Li or any of his relatives who might have personal security concerns arising from disclosure based upon the more limited editing that I consider to be appropriate in respect of these files. [15] In result, I have determined that of the two files delivered to me pursuant to the first stage of this O'Connor application, only pages 3, 17, 53, 63, 64, 69 and 70 from "O" Division File number 2004-1707 should (for the reasons addressed in my Memorandum to Counsel attached as Schedule A and after the editing I have determined to be appropriate) be disclosed to the Crown and the accused pursuant to the second stage O'Connor analysis I have conducted. [16] I have further determined that copies of all of those pages, as edited, should be provided to Michael Li through Ms. Resnick, as requested, and to Peter Li upon any application by him. [17] Finally, in concluding this application, all copies of all documents delivered to me by counsel for "O" Division, pursuant to this O'Connor application, were sealed and marked as exhibits on this application. [18] One copy of the edited documents that I have determined should be disclosed was marked as an unsealed exhibit on this application. "Davies J." Schedule A IN THE SUPREME COURT OF BRITISH COLUMBIA Date: 20081126 Docket: 23900 Registry: Vancouver Regina v. Yat Fung Albert Tse, Viet Bac Nguyen, Nhan Trong Ly, Daniel Luis Soux, Huong Dac Doan, and Myles Alexander Vandrick Memorandum to Counsel from The Honourable Mr. Justice Davies Re: Second Stage O'Connor Analysis of R.C.M.P. "O" Division Files for Wei Dong (Michael) Li Counsel for the Crown: J.C. Bellows, Q.C. A. Adams, S.P. Lakshman Counsel for the Accused, Tse: S.R. Buck For the Accused, Nguyen: R.C. Claus Counsel for the Accused, Ly: B.V. Bagnall Counsel for the Accused, Soux: I. Donaldson, Q.C. Counsel for the Accused, Doan: K.S. Westlake, Q.C. Counsel for the Accused, Vandrick: T.B. Doust Counsel for the Royal Canadian Mounted Police "O" Division and the Department of Justice of Canada E. Resnick Place of Trial: Vancouver, B.C. 1. On November 6, 2008, upon application by the accused under the procedure established by the Supreme Court of Canada in R. v. O'Connor, [1995] 4 S.C.R. 411 [O'Connor], I ruled that the accused had met the threshold test of establishing the likely relevance of two files of "O" Division of the Royal Canadian Mounted Police ("O" Division) concerning an important Crown witness, Wei Dong (Michael) Li, to issues in this trial. 2. The two files were identified on the application and by my ruling as File No's 2004-1707 and 2004-6674. 3. As a consequence of that ruling and my concurrent requests of Ms. Resnick as counsel for "O" Division I was, on November 21, 2008, provided with two sealed copies of the two files, together with Confidential Submissions on behalf of "O" Division. 4. At my request, both copies of the two files were page numbered sequentially and one copy of each file was also highlighted by counsel to identify the basis upon which "O" Division submitted that the documents should not be produced in this litigation under the second stage of an O'Connor analysis. The highlighting methodology employed by counsel was that: (1) documents identified as being "not relevant" were highlighted in green; and (2) documents that were considered "Third Party Private Information" that in the opinion of "O" Division ought to be precluded from disclosure, despite its relevance, or if found relevant were either highlighted in yellow or were blacked out. 5. So that I could assess whether redaction concerning information that had been blacked out was necessary, I was also provided with another "working" copy of the original "unmarked" files. In addition, I was provided with an extra copy of pages 53, 63, 65, 69 and 70 of File No. 20054-1707 as a "working copy" of those specific pages that, in the submission of "O" Division, were the only pages from the two files that are potentially disclosable concerning the relationship between the complainant Peter Li and the witness Michael Li upon which the accused based this O'Connor application. 6. Counsel for "O" Division also advised me in her Confidential Submissions that: (1) Pursuant to my order of November 6, 2008, Michael Li was advised that I had ordered the production of the two files for consideration under the second stage of the accused's O'Connor application and was asked if he wished to make any submissions to the Court. (2) Michael Li responded through his parole supervisor that he does not want any of the information in the files released but that if any information is released, he wants all information identifying him "withheld from the Defence (i.e. information identifying his location, address or phone number etc)." He also responded that "if any information is released to the Defence, he would like to receive a copy of that material" through Ms. Resnick. (3) Information concerning Peter Li has been treated as third party information as no application has been made to disclose this information and Peter Li has had no opportunity to make submissions concerning its release. 7. After receipt of all of the aforementioned documentation and the Confidential Submission I had the "Unmarked Original" numbered compilation of each file sealed and marked as exhibits on this O'Connor application. I will also eventually have marked as exhibits and sealed all other marked and unmarked copies of the files as well as the Confidential Submissions of "O" Division. 8. I have now reviewed the highlighted copies of the two files and the unmarked copies and have considered the Confidential Submissions of counsel for "O" Division. 9. In reviewing the files, as well as the Confidential Submissions, I have done so bearing in mind the considerations that govern the second stage of an O'Connor application. Specifically, I have considered: (1) the extent to which the documentation sought is necessary for the accused to make full answer and defence; (2) the probative value of the documentation; (3) the nature and extent of the reasonable expectation of privacy invested in the documents; (4) whether production of the documents would be premised upon any discriminatory bias or belief; and (5) the potential prejudice to the witnesses' dignity, privacy or security of the person that would be occasioned by the production of the documents. 10. I have considered the privacy and security issues affecting not only Michael Li but also those concerning other third parties identified by the documentation. I have, in addition, considered privacy and privilege issues advanced by "O" Division in respect of their own confidential interests in the information and documentation contained within the files. 11. My review to date has led me to conclude that I must require further submissions from counsel for "O" Division and the accused before being able to complete the second stage of the O'Connor analysis on this disclosure application. 12. I am communicating my specific concerns in writing by way of this Memorandum to Counsel because: (1) I am concerned that Crown counsel and defence counsel should be aware of the basis upon which otherwise potentially relevant information or documentation may be withheld; (2) I require submissions related to the positions advanced by Michael Li; and (3) I am satisfied that Peter Li should have notice of this application so that he may make any submissions he may wish to make concerning the disclosure of information in the files pertaining to him. 13. In making this request for further submissions I will refer to the two files as numbered and as highlighted and produced to me. I will also provide a preliminary assessment of the extent to which a document is potentially disclosable to the Crown and the accused under the O'Connor framework. That preliminary assessment may well be subject to change depending upon any further submissions any counsel may wish to make, including any submissions that may be made by or on behalf of Peter Li. Preliminary Assessment File 2004-1674 (29 Pages) 14. My preliminary review of this file has satisfied me that none of the information or documentation contained in the file should be disclosed pursuant to a second stage O'Connor analysis. 15. The file is solely concerned with a request for service of a "Notice of Intention to Produce Evidence" upon Michael Li for charges emanating from the Cornwall Detachment Drug Unit file No. 2001-462 that were withdrawn. 16. Also, my review of File No. 2004-1674 accords with the statement of Sergeant Mina Alborino tendered by counsel for "O" Division at the first stage of this O'Connor application that: with respect to the Cornwall Detachment Drug Unit file No. 2001-462: Peter Li never surfaced during the investigation Preliminary Assessment File 2004-1707 (82 Pages) 17. My preliminary assessment of this file date has satisfied me that by application of the second stage O'Connor analysis but, subject to further submissions as to privacy and editing by or on behalf of Peter Li and "O" Division, pages 3, 17, 53, 63, 64, 69 and 70, should be disclosed to the Crown and the accused. 18. Concerning those issues which require further submission I make the following preliminary observations upon which I will seek the assistance of all counsel: Page 3: Concerns Peter Li and connections to Canada Zau Fu Trade Company which should likely be disclosed without editing. Page 17: Concerns Michael Li and connections to Canada Zau Fu Trade Company which likely should be disclosed without editing unless addresses recorded are both personal (as opposed to corporate) and current. Page 53: Concerns Peter Li and Michael Li and connections to Canada Zau Fu Trade Company that likely should be disclosed without the editing suggested in yellow unless the addresses recorded are both personal (as opposed to corporate) and current. Redaction in black appears appropriate. Page 63: Concerns Peter Li and Michael Li and connections to Canada Zau Fu Trade Company that likely should be disclosed without the editing suggested in yellow under "comments" except the yellow highlighted file number unless the addresses and phone numbers recorded are both personal (as opposed to corporate) and current. All yellow highlighting above the "comments" section appears to be appropriate as does all redaction in black. Page 64: Continuation of page 63. Only appropriate editing appears to be the last phone number recorded unless the highlighted address is both personal and current. Page 69: Concerns Toronto Integrated Proceeds of Crime Investigation. Editing of police officers phone numbers is appropriate. No other suggested editing likely necessary unless Michael Li's highlighted "home address" is current. Page 70: Concerns money laundering investigation referencing both Michael Li and Peter Li that should likely be disclosed with suggested editing in yellow highlighting except as to references to Michael Li and Peter unless address recorded for Michael Li is current. I also require further submissions related to why the description of the "male subject" in line 4 of the entry for 2004-06-24 should be edited. Redaction in black appears appropriate. 19. In making this request for further submissions I have determined that oral submissions in open court on a document specific basis are necessary to ensure that the second stage O'Connor analysis is properly focussed. By seeking those submissions in open court I do not suggest that any document should be described to any extent greater than I have now done. There are, however, editing issues raised by counsel for "O" Division that can and should be addressed relating to the specific privacy interests advanced that may be important to the necessary balancing of privacy and probative value interests with issues of full answer and defence required by a second stage O'Connor analysis. 20. Other than those documents to which I have referred in this memorandum I have concluded that: (1) for reasons identified by counsel for "O" Division through highlighting or in her Confidential Submissions which I have accepted; or, (2) by reason of my own assessment of both relevance and probative value in respect of those issues at trial that were identified by counsel for the accused in bringing this application, no other documents in either file should be disclosed. "Davies J."