R. v. Fan

2013 BCSC 1851 R. v. Fan IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Fan, 2013 BCSC 1851 Date: 20131009 Docket: 30489 Registry: Williams Lake Regina v. Wei Xin Fan, Yue Rong Guan and Can Jian Li Before: The Honourable Madam Justice B.J. Brown Li's Application for Mistrial Agent for the Public Prosecution Service of Canada: S. Nixon Counsel for Mr. Fan: J.P.R. Desbarats Counsel for Mr. Guan: Paul M. Ferguson Counsel for Mr. Li: George J. Wool Place and Date of Hearing: Williams Lake, B.C. Place and Date of Judgment: Williams Lake, B.C. October 9, 2013 I. INTRODUCTION [1] Mr. Li applies for a mistrial on the following basis: 1. That the court has made determinations on the evidence which go to the merits of the indictment and demonstrate a premature determination of the outcome; 2. That the court took improper judicial notice in reaching certain conclusions; 3. That the voir dire reasons demonstrate a reasonable apprehension of bias. A. Pre-Judgment [2] Mr. Li argues that findings of fact that I have made on voir dire rulings demonstrate a premature or predisposed conclusion to the evidence and merits of the indictment. He identifies a number of specific instances in the reasons issued on the voir dire rulings which he says lead to this conclusion. [3] In my view, these are either misreadings of the Reasons for Judgment, or do not go to the merits of the indictment. [4] First, Mr. Li takes the following quotes from my reasons for judgment (2013 BCSC 1406): "There was no indication of any legitimate activity on the property."(para. 13; "Given that the only apparent purpose of the house was as a site for a grow operation" (para. 32). and argues that these are findings of fact which I have made. These quotes are taken out of context and are a misreading of my reasons for judgment. At para. 13, I made the following statement: Given that there was no indication of any legitimate activity on the property, Constable Turko believed that the sole purpose was to grow marijuana. This was not my conclusion, this was Constable Turko's evidence as to why he thought he had reasonable and probable grounds to arrest. [5] At para. 32 I said: Having canvassed these cases, the court in Chaif-Gust upheld the trial judge's ruling that the arrest was lawful. Given that the only apparent purpose of the house was as a site for a grow operation, it was reasonable for the police to infer that anyone present was there for the purpose of attending the operation. (para. 62). This is a summary of paragraph 62 of Chaif-Gust. It was not a finding of fact in my reasons. [6] Mr. Li identifies the following quote: This suggests that the two male voices were those of Mr. Guan and Mr. Li as they were inside in the outbuilding. (para. 36) and argues that this, too, is a finding of fact by me. [7] At para. 36, I am addressing the objective reasonableness of Constable Turko's conclusion that it was appropriate to arrest the two individuals running from the grow operation building. Those two individuals he identified as Mr. Guan and Mr. Li. Therefore, at para. 36 I say: In addition, before the search team arrived, at least two male voices were heard coming from inside the outbuilding. Upon the team's arrival, the two accused came running around the corner of the outbuilding, both wearing attire better suited for warmer temperatures and inappropriate for the cooler weather. This suggests that the two male voices were those of Mr. Guan and Mr. Li as they worked inside in the outbuilding. I am simply addressing the objective reasonableness of Constable Turko's conclusion. I am not making a finding of fact that Mr. Li was working inside the outbuilding. [8] Mr. Li identifies the quote at para. 150 of my Reasons: Realistically they knew why the police were attending the property and arresting them. This section of the reasons addresses the accused's assertion that they had not been informed promptly of the reasons for their arrest in breach of s. 10(a) of the Charter. In assessing this breach, I refer to R. v. Lund: Finally, as the inquiry is whether, substantively, the accused can reasonably be supposed to have understood the basis for the investigation, the informational requirement of s. 10(1) can be inferred from the context or circumstances of each case. (R. v. Lund, 2008 ABCA 373 at para. 16) [9] I continue at para. 149: Furthermore, I am satisfied on the whole of the evidence that each of the accused had a rudimentary understanding of English. Each was able to have a limited conversation in English with Police. In addition, the circumstances in which the arrests occurred give some colour as to what the accused knew and understood at the time. Mr. Li and Mr. Guan were arrested while running from the outbuilding, which housed the grow operation, and Mr. Fan was arrested at the entrance to the outbuilding. Realistically, they knew why the police were attending the property and arresting them. Upon apprehension, each accused was immediately advised, in English, that they were under arrest and the reason for the arrest. This is an assessment of whether the accused can reasonably be supposed to have understood the basis for the investigation. It is not a determination, as Mr. Li argues that: These findings of fact proved that Li had consent, knowledge and control of the illegal grow op. This analysis excludes the possibility that it was actually Mr. Fan and Mr. Guan who were inside the grow-op as opposed to Mr. Li. [10] I did not make such findings of fact. I did not find that Mr. Li was inside the grow-op building. The findings of fact which I made do not lead to the conclusion, expressly or by necessary implication, that Mr. Li is guilty of the offence charged. [11] Mr. Li argues: The trial judge has displaced Mr. Li's presumption of innocence and issues of knowledge, consent and control have been foreclosed by issue estoppel. As set out above, I have not made such findings. [12] Mr. Li argues: Mr. Li is precluded from calling Mr. Guan and Mr. Fan as witnesses because neither one is compellable to testify. This is an incident of an indictment which charges three individuals. It is not the result of any conclusions I made on any of the voir dire rulings. [13] Next, Mr. Li argues that because I found some of his evidence on the voir dire not to be credible, I have concluded that any evidence that Mr. Li might give on the trial proper would not be credible. Mr. Li provided no authority for this proposition and I am not persuaded on this point. Trial judges often reject a witness' evidence on some points while accepting the evidence on other points. That I rejected Mr. Li's evidence on two issues on the voir dire does not mean that I would reject his evidence at trial. Indeed, as Mr. Li's counsel acknowledged, if this were the law, any judge who rejected an accused's evidence on a voir dire, thereby necessarily making credibility findings, would be precluded from continuing with the trial. B. Judicial Notice [14] Mr. Li argues that I took improper judicial notice of what Mr. Li could likely see and hear. My conclusions were not reached as a result of judicial notice, but on the evidence and inferences that I drew from the evidence. For example, Constable Smith and Constable Turko said that they could hear the approach of the police vehicles from where they were, standing behind the grow-op building. Mr. Li said that he could not hear the approach of the vehicles even though he was standing in front of the grow-op building, closer to the approaching vehicles, and identified the particular point at which he was standing. I inferred from this evidence that it was unlikely that Mr. Li would not have heard the police vehicles approaching. Second, Mr. Li said that he had seen Constable Smith carrying a long-barrelled gun and it was for this reason that he ran around the building towards Constable Turko. Constable Turko and Constable Smith had each given evidence with respect to their location behind the grow-op building. Mr. Li gave evidence with respect to his location in front of the grow-op building. I inferred from this evidence that it was unlikely that Mr. Li would have seen Constable Smith as he said he did. These were two instances in my reasons for rejecting an aspect of Mr. Li's evidence. Neither was the result of judicial notice. C. Reasonable Apprehension of Bias [15] Mr. Li argues that in my reasons on the voir dire, I made comments with respect to his race and culture, demonstrating a pre-disposed conclusion. In my reasons I said: He has lived in Canada for several years and is now a Canadian citizen. To become a citizen, he had to take his citizen exam in English. He took English as a second language classes. I do not accept his evidence that he did not understand the reason for his arrest, or that he did not have a rudimentary understanding of English. This is not a comment on Mr. Li's race or culture. The reasons address Mr. Li's understanding of English and the reasons for rejecting his assertion that he did not have a rudimentary understanding of English. The reasons do not stereotype Mr. Li's race or culture. [16] Accordingly, I reject Mr. Li's application for a mistrial. __________________________________ The Honourable Madam Justice B.J. Brown