R. v. Hernandez

2008 BCSC 1477 R. v. Hernandez IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hernandez, 2008 BCSC 1477 Date: 20080818 Docket: 23905 Registry: Vancouver Regina v. Jose Hernandez, Anh The Nguyen, Joshua Ponicappo, Sam Tuan Vu & Van Van Vu Ban on Disclosure 486.5(1) C.C.C. Inherent Jurisdiction Pursuant to s. 486.5(1) of the Criminal Code, there is a ban on the publication in any document or the broadcast or transmission in any way of any information that could identify the witnesses, identified in these proceedings as "Witness X" and "Witness Y". They are to be referred to as Witness X and Witness Y in any publication. There is a statutory ban, as well as a ban pursuant to the inherent jurisdiction of the Court, on the publication in any document or broadcast or transmission in any way of any information that could identify the person referred to in these Reasons as "Mr. Z". He may be referred to as Mr. Z in any publication. Before: The Honourable Mr. Justice Silverman Oral Addendum to August 11 Oral Ruling on Voir Dire re Electronic Surveillance August 18, 2008 Counsel for the Crown R. Cairns, Q.C., K. Murphy, E. Duncan & S. Black Counsel for the Accused Hernandez L. Smith Counsel for the Accused Nguyen K. Bastow Counsel for the Accused Ponicappo D. Kontou Counsel for the Accused Sam Vu C. Corriveau Counsel for the Accused Van Vu J. Whysall & D. Karp Place of Trial: Vancouver, B.C. [1] THE COURT: The Crown seeks clarification of comments I made in the August 11 oral ruling on voir dire re electronic surveillance. The clarification sought relates to calls involving Mr. Nguyen. The Crown correctly observes that, since there were certain calls that Mr. Nguyen's counsel did not argue were obtained in breach, I should not have found that all of the Nguyen calls were obtained in breach. She is correct, and I thank her for bringing this to my attention. Because the ultimate admissibility (under s. 24(2)) was not disputed by Mr. Nguyen's counsel, I lumped all the Nguyen calls into the category of breach and then found them admissible under s. 24(2). This was an error. I correct it now. [2] Those Nguyen calls that were intercepted pursuant to 184.4 were found by me to have been obtained in breach because of my following Judge Davies' ruling with respect to the unconstitutionality of that section. However, Nguyen calls intercepted pursuant to P18 and P19 are in a different category, and also in a different category than the Kim calls, because they were noted as properly interceptable within the authorizations. Mr. Nguyen's counsel did not argue otherwise. [3] I indicated in my Reasons that all the calls were obtained by breach, and found them admissible pursuant to s. 24(2). Clearly, the Nguyen calls intercepted pursuant to P18 and P19 were not obtained in breach, and they are therefore admissible without having to address the 24(2) issue with respect to them. [4] Consequently, this addendum has no effect on the admissibility of any of the previously admitted Nguyen calls. Those obtained under s. 184.4 are still admissible by virtue of 24(2). Those obtained pursuant to P18 and P19 are admissible because there was no breach committed in obtaining them. Alternatively, if they were obtained in breach, I would have admitted them in any event pursuant to 24(2). [5] MS. MURPHY: Thank you, My Lord. [6] MS. BASTOW: Thank you. Just so that the record is clear, and I'll just state this, is that Anh The Nguyen did challenge the calls obtained pursuant to 184.4, and Your Lordship did find that those were obtained in breach, but nonetheless admissible under s. 24(2). [7] THE COURT: Thank you, Ms. Bastow. "A. Silverman J." _______________________________ The Honourable Mr. Justice Silverman