R. v. Nguyen et al

2004 BCSC 78 R. v. Nguyen et al IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nguyen et al 2004 BCSC 78 Date: 20040113 Docket: 23070 Registry: Prince Rupert Regina AGAINST Thanh Van Nguyen Loi Van Nguyen Chung Sze Trieu My Phuong Cao Before: The Honourable Mr. Justice Halfyard Oral Ruling on Voir Dire January 13, 2004 Counsel for the Crown: M. Krotter Counsel for the Accused T. Nguyen: M. Griffith-Zahner Counsel for the Accused L. Nguyen: S. Narbonne Accused Chung Sze Trieu, representing himself Counsel for the Accused Cao: D. O'Byrne Place of Trial/Hearing: Prince Rupert, B.C. [1] THE COURT: I am ruling that I should and will give my ruling on the second part of voir dire number one, and I will do so now. [2] I am satisfied, on the balance of probabilities, that the evidence in question was obtained in a manner that infringed or denied the s. 8 rights of Thanh Van Nguyen. [3] The issue is whether the admission of the evidence in this trial would bring the administration of justice into disrepute. There are three essential sub-issues that must be decided. The first is whether the admission of the evidence would affect the fairness of the trial. The defence initially submitted that the information obtained by the police is conscriptive evidence. If that is correct, then trial fairness will be affected by its admission unless the Crown can establish that the same evidence would have been obtained by the police by other lawful means; see R v. Stillman (1997), 113 C.C.C. (3d) 321 at paragraphs 80, 82, 86 and 102. [4] In my opinion, a review of the statements made about conscriptive evidence in paragraphs 70, 73, 77, 80 and 82 of Stillman, leads inevitability to the conclusion that the evidence in question is not conscriptive evidence and was not derived from conscriptive evidence. Its admission would not affect the fairness of the trial. [5] The second sub-issue is the degree of seriousness of the Charter violation. I will summarize the several violations that I have found to have been committed: first, the obtaining of the accused's cell phone number on April 27, 2000, without a warrant; second, the obtaining of records from CityTel for that cell phone, although pursuant to the warrant and order; third, in obtaining the accused's second cell phone number from CityTel on June 7, 2000, and obtaining the records for that cell phone for the period from May 25 to July 7, 2000; and fourth, in requesting and obtaining an order for the production of records for non-targeted telephones, and in obtaining records from CityTel which disclose the names and addresses of the subscribers of at least some of the non-target telephones. [6] I found that the issuance of the warrant and order for the two landline telephones was authorized by s. 492.2, but that the statute was unconstitutional. [7] The relevant factors on this point include the following: first; were the violations committed inadvertently and in good faith or were they flagrant? Second, were the violations motivated by urgency or necessity to preserve evidence? Third, were other investigative techniques available? And fourth, how intrusive was the search, and how strong was the accused's reasonable expectation of privacy? [8] It is obvious that no urgency was involved here. [9] With respect to the adding of the second cell phone on June 7, 2000, it seems clear that a warrant and production order could have been sought and obtained for that phone under s. 492.2. However, as stated by Mr. Justice Sopinka in R v. Grant (1993), 84 C.C.C. (3d) 173 at page 202: The fact that the officers proceeded with the search without a warrant, even though they had the grounds necessary to obtain one, renders the violation more serious than it would otherwise be. See also R v. Buhay (2003), 174 C.C.C. (3d) 97, at paragraph 52. [10] As to the violations involved in obtaining information from the number recorders attached to the two landline telephones and obtaining the records for those two telephones, I am satisfied that Corporal Pearson acted in good faith. She was relying on a statute which was then good law. [11] I have also concluded that Corporal Pearson acted in good faith in obtaining the accused's cell phone number from CityTel on April 27, 2000. She did so in reliance on a policy that had developed between the RCMP and CityTel, and believed she acted lawfully. [12] However, in my opinion, it cannot be said that Corporal Pearson acted in good faith in obtaining the information about the second cell phone and the records for that cell phone. Even though a senior officer and a Crown counsel may have advised her that this could be lawfully done under the "resort to" clause or some other aspect of the warrant, I think that all of those involved ought to have known better. I do not see how anyone could put such an interpretation on the terms of the warrant. Of course, the "resort to" clause should not even have been included in the warrant, let alone be relied on for this purpose. I do not say there was bad faith, only that there was absence of good faith in that respect. [13] I think it may also fairly be said that Corporal Pearson ought not to have made the wrong identification of the accused or to have failed to disclose the fact that he was not charged in her information to obtain. Where a police officer does something he or she ought not to have done, the belief that what was done was lawful will not amount to good faith where the error was unreasonable. See R v. Kokesch, (1991), 61 C.C.C. (3d) 207, at page 230, and R v. Buhay at paragraph 59. [14] Although the searches did not involve intrusion on the accused's property or on his physical person, I have found that he did have a reasonable expectation of privacy in respect of his cell phone number and in the information as to what telephone calls he was making and receiving and who he was calling and who was calling him. The intrusion lasted for two months. [15] It has been said on high authority that "when the state seeks information ... in the course of a criminal investigation ... the citizen has a very high expectation of privacy in respect of such investigations". See Thomson Newspapers Limited v. Canada (1990), 54 C.C.C. (3d) 417, per Mr. Justice La Forest at pages 476 to 477. [16] Taken collectively, and having regard to the factors I have mentioned, I would describe the violations as being of at least moderate seriousness, well above the level of trivial or technical breaches. [17] The third sub-issue is "whether excluding the evidence would have a more serious impact on the repute of the administration of justice than admitting it." See R v. Buhay at paragraph 67, which is itself a quote from R v. Caslake (1998), 121 C.C.C. (3d) 97, at pages 112 to 113. The relevant factors on this point are generally the seriousness of the crime charged and the importance of the evidence to the case for the Crown. [18] The crimes charged here are serious crimes carrying maximum penalties of life imprisonment. I am told, and I accept, that the evidence may well be important to the building of the Crown's case. But it has not been suggested that the evidence is essential or even a crucial part of the Crown's case. [19] My task is to evaluate all of the relevant circumstances and decide whether the defence has shown that the circumstances which favour exclusion outweigh those which favour admission of the evidence. On the circumstances that I have so far outlined, I find that the seriousness of the violations outweighs, to some extent, the partial good faith of Corporal Pearson and the adverse effect of exclusion on the repute of the justice system. [20] However, in my opinion, there is another relevant circumstance which tips the scale even further for exclusion of the evidence. That is the fact that all of the information obtained under the warrant and order, including the authorized information relating to the two landline telephones, was obtained on the strength of evidence which established only a reasonable suspicion that an offence had been or would be committed and that useful information would be obtained. [21] If my conclusion is right, then the information to obtain did not meet, and was incapable of meeting, the required constitutional standard. In such a situation, I cannot see how society's interest in the effective prosecution of serious crime could be a significant factor in this case. In my view, this further diminishes the weight that should be attributed to the adverse effect of exclusion. [22] In the result, all of the evidence sought to be admitted by the Crown on this voir dire will be excluded. "D.A. Halfyard, J." The Honourable Mr. Justice D.A. Halfyard