R. v. Christhurajah

2016 BCSC 2550 R. v. Christhurajah IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Christhurajah, 2016 BCSC 2550 Date: 20161130 Docket: 26117 Registry: Vancouver Regina v. Kunarobinson Christhurajah Lesly Jana Emmanuel Nadarajah Mahendran Thampeernayagam Rajaratnam Restriction on publication: pursuant to s. 648(1) of the Criminal Code of Canada Before: The Honourable Mr. Justice Ehrcke Oral Ruling on Application #42 Counsel for the Crown: P.R. LaPrairie C.F. Hough Counsel for the Accused K. Christhurajah: C.L. Leggett Counsel for the Accused L.J. Emmanuel: R.A. (Sandy) Ross Counsel for the Accused N. Mahendran: M. Nohra M.J. Gismondi Counsel for the Accused T. Rajaratnam: V.M. Williams Place and Date of Hearing: Vancouver, B.C. November 29, 2016 Place and Date of Judgment: Vancouver, B.C. November 30, 2016 [1] THE COURT: Thampeernayagam Rajaratnam is charged, along with three other accused, with an offence contrary to s. 117(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, between August 1, 2009, and August 13, 2010. [2] The Crown's theory is that Mr. Rajaratnam acted as an agent in Thailand, arranging transport to Canada on the MV Sun Sea for some of the migrants. [3] On November 28, 2016, counsel for Mr. Rajaratnam filed a notice of application seeking the exclusion of identification evidence from a Crown witness who is about to be called, Migrant Number B241. In support of the application, the defence filed the affidavit of Jeremy Wong attaching several exhibits. The Crown filed Affidavit #14 of Katie Lohrasb. [4] What emerges from the affidavits is that Migrant B241 was shown photographs in a CBSA interview on September 3, 2010. He picked one of the photographs as being a photograph of his agent in Thailand whom he referred to as Sokan. Later, on October 2, 2010, he was interviewed by the RCMP, who also showed him photographs, and he picked a photograph of the accused Mr. Rajaratnam as Sokan. [5] The Crown wishes to elicit evidence from Witness B241 of an identification in court and also of his identification of the accused Mr. Mahendran during his October 2, 2010 RCMP interview. The Crown does not intend to call evidence with respect to the CBSA interview because the only record which exists of that interview is a statutory declaration of the CBSA officer, and that document does not have a verbatim account of how the photographs were presented or even whether the photographs presented to B241 included a photograph of Mr. Rajaratnam. [6] The Crown submits that it is a reasonable inference that the witness was shown a photograph of Mr. Rajaratnam and that he picked that photograph as his agent Sokan, but there is no direct evidence that this is the case because those details are not explicitly stated in the statutory declaration, and so far as we know, no other record of that interview has been preserved. [7] Counsel for Mr. Rajaratnam takes the position that since the Crown cannot prove that B241 successfully picked out Mr. Rajaratnam during his first photo identification session with the CBSA, the Crown should not be permitted to lead evidence of his subsequent identification of Mr. Rajaratnam during his RCMP interview one month later, since his identification at that time may have been contaminated by his memory of the photographs he was shown by the CBSA. [8] Defence counsel submits that, given the lack of details about what happened during the CBSA interview, it is impossible for her to effectively cross-examine on the subject. [9] This application on behalf of Mr. Rajaratnam is in some ways similar to the application previously brought by counsel for Mr. Mahendran which also sought an exclusion of identification evidence. In my ruling on that application, I held that the identification evidence was admissible, but the lack of detail about what happened during the CBSA interviews was a matter that would go to the weight of the identification evidence led by the Crown. [10] A difference with the present application is that here counsel for Mr. Rajaratnam submits that the Crown has negligently failed in its duty to preserve the CBSA evidence and that this amounts to a breach of s. 7 of the Canadian Charter of Rights and Freedoms which should result in the exclusion of the identification evidence pursuant to s. 24(1) of the Charter. In support of this submission, defence counsel points to the fact that although the RCMP and CBSA were not conducting a single coordinated investigation of the migrants, nevertheless in 2011 the RCMP obtained the statutory declaration of the CBSA officer in relation to the September 3, 2010 CBSA interview and therefore knew that the CBSA had conducted a photo lineup that preceded the RCMP's own photo identification procedure. [11] Defence counsel submits that, in accordance with cases like R. v. McNeil, [2009] 1 S.C.R. 66, the Crown had a duty to attempt to obtain from the CBSA the photographs that they used during their identification procedure, along with the details of how their identification procedure was conducted. [12] The defence submits that the RCMP's failure to do so has resulted in the negligent loss of evidence of the fruits of the investigation which should result in a Charter remedy in accordance with the Supreme Court of Canada's decisions in R. v. La, [1997] 2 S.C.R. 680, and R. v. Bjelland, [2009] 2 S.C.R. 651. [13] In the circumstances of this case, I am not satisfied that the defence has established that the RCMP had a duty to preserve the fruits of the CBSA's investigation and that their failure to do so amounts to a Charter breach. The RCMP investigation was independent of the CBSA investigation. The CBSA was not part of the criminal investigation force. [14] While the RCMP had a duty, pursuant to R. v. La, to preserve the fruits of their own investigation, that duty did not extend to preserving the records of the CBSA. I agree with the defence that when the RCMP obtained the statutory declaration of the CBSA officer who conducted the September 3, 2010 interview through a Privacy Act, R.S.C. 1985, c. P-21 request made on January 24, 2011, the RCMP should have recognized the evidentiary significance of the fact that the witness's first test of his ability to identify his agent came during the CBSA interview. The RCMP should have recognized that unless they obtained the details of the CBSA identification procedure, that evidentiary lacuna might significantly impair the probative value of any subsequent identification by the witness, including the photo identification procedure carried out by the RCMP on October 2, 2010. [15] In short, the failure of the RCMP was a failure to conduct as thorough an investigation as they might have done, but it is not a failure of their duty to preserve and disclose the fruits of their investigation. [16] The Crown must now live with the consequence that they cannot put before the jury as strong a case of identification as they might have done had the CBSA evidence been preserved, but that is a matter that goes to the weight rather than the admissibility of the identification evidence of Witness B241. [17] As Weiler J.A. wrote at para. 91 of R. v. Gagnon (2000), 147 C.C.C. (3d) 193 (Ont. C.A.): [91] The trial judge was correct that the generally accepted state of the law is that, where evidence is tainted, either because identification was suggested by the accused's presence in the prisoner's box or as a result of inappropriate police procedures, the evidence is not thereby rendered inadmissible. Rather, the evidence of tainting is a factor going to the weight of the evidence which is exclusively the province of the jury. See Mezzo v. The Queen (1986), 27 C.C.C. (3d) 97 (S.C.C.) . . . [18] I find that in the present case, the defence has not shown, on a balance of probabilities, that there was a breach of s. 7 of the Charter, and accordingly the application for a remedy under s. 24(1) of the Charter is dismissed. The Crown will be permitted to lead identification evidence from Witness B241. The Honourable Mr. Justice W.F. Ehrcke