R. v. Cox

2018 BCSC 1547 R. v. Cox

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cox, 2018 BCSC 1547 Date: 20180731 Docket: 27145 Registry: Vancouver Regina v. Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta Ellwood Bradbury and Matthew Stewart Restriction on Publication: A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a victim/witness/undercover officer, referred to in this judgment by the initials H.C., S.L., and S.G. This publication ban applies indefinitely unless otherwise ordered. Restriction on Publication: A publication ban has been mandatorily imposed under s. 517(1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of the evidence taken, the information given, the representations made and the reasons, if any, given in respect of the application for judicial interim release (bail). Corrected Judgment: The text of the judgment was corrected at paragraph 16 on September 14, 2018 Before: The Honourable Mr. Justice Silverman Oral Ruling on Voir Dire #8 Re Execution of Warrant for DNA Sample Counsel for the Crown: K. Andani P. Hogg L. Fillingham J.M. Robinson L. Pearce Counsel for the Accused, Harinam Cox: G. Docolas G.M. Ng Counsel for the Accused, Shamil Ali: T.D. Anderson A. Dorin Counsel for the Accused, Gopal Figueredo: D.P. Lawrence W. Jessop Counsel for the Accused, Erlan Acosta: J.S. Stowe V. Aldosky Counsel for the Accused, Ellwood Bradbury: S.R. Buck C. Muldoon Counsel for the Accused, Matthew Stewart: J.D. Jevning V. Williams Place and Date of Trial: Vancouver, B.C. Dates Ongoing Place and Date of Judgment: Vancouver, B.C. July 31, 2018 [1] THE COURT: This is my ruling with respect to voir dire No.

8. These are oral reasons. If a transcript is ordered, I reserve the right to edit, although that process will not involve a change in the decision or in the reasoning. [2] In this Charter application, one of the accused, Mr. Acosta, argues that the execution of a DNA warrant upon him was performed in a way which breached his Charter rights and should result in the exclusion from evidence of the blood samples taken and the DNA profiles obtained as a result. [3] Section 8 of the Charter is at stake. The applicant argues that the breaches arise from: 1. A failure to comply with the mandatory requirements of s. 487.07(1) of the Criminal Code before the warrant was executed; 2. A failure to comply with the various terms and conditions set forth in the warrant itself before it was executed; and 3. A failure to comply with s. 487.057 of the Criminal Code concerning a mandatory report to the Provincial Court. [4] There is nothing about the evidence on this application that is in dispute. Rather, the dispute arises at the stage where inferences and legal conclusions need to be drawn from the evidence. The evidence consists of the following: 1. The oral evidence of Detective Constable Aitken who was one of two officers who attended to execute the warrant upon the applicant; and 2. Numerous documents including: a) The Information to Obtain ("ITO") which was the basis for the issuance of

the warrant; b) The warrant itself of May 30, 2017; c) A recording and transcript of the execution of the warrant on June 19, 2017; d) A blood sample checklist of June 19, 2017; and e) A form purportedly completed pursuant to s. 487.057(1) dated July 7, 2017. [5] Relevant background circumstances to the application for the warrant are revealed in the ITO upon which the issuance of the warrant was based. Those circumstances include the following: 1. There had been an earlier warrant ("Earlier Warrant"), dated November 9, 2016, which had been executed upon Mr. Acosta and samples obtained. This was also true of the other five accused.

2. Crown counsel and investigating officers subsequently determined that the Earlier Warrant was too narrow in its scope for their investigative purposes in that it authorized samples to be taken for comparison to a limited number of specific exhibits. It was subsequently determined that additional comparisons were needed with other exhibits and that it was therefore prudent to apply for a new warrant so that could occur without any doubt about the process being lawful. [6] The foregoing is the genesis of how the warrant at stake here came into being. [7] This applicant does not challenge the validity of either of the two warrants, that is, the Earlier Warrant or the one at stake here, and also does not challenge the validity of the execution of the Earlier Warrant. It is only the execution of the second warrant, that is, the one at stake here, which is before me. [8] The ITO upon which this warrant was based was sworn on May 30, 2017. It was authorized and issued by a Provincial Court judge on that same date. Execution occurred on June 19, 2017 by Detective Constables Aitken and Russell of the Vancouver Police Department who attended for that purpose upon Mr. Acosta at the North Fraser Pretrial Centre where he was in custody. The execution was audio-recorded and there is a transcript of it. The recording was played in Court and the transcript available to assist while we

listened to the recording. [9] There are a number of "indecipherables" in the transcript and a number of words or phrases in the recording which are unclear. Counsel argues that several of them leave ambiguities or potential alternatives for words spoken. The accused argues that several such words and one phrase in particular is important and argued in support of a specific interpretation. In one instance, I agree with the accused on this point and therefore will ignore the last word of line 86 of the transcript; that is the word "out". Therefore, the last phrase of that line will now read, "But I didn't really read all this". [10] Before the Court is also the warrant itself that was executed at that time and place. [11] Generally, the accused's submissions flow from and expand from the following incontrovertible fact: neither of the officers read out any portion of the warrant to the accused and neither of them read out the subsections of s. 487.07(1) of the Criminal Code. The accused argues that such a reading was mandatory. In the alternative, if that submission is wrong, the accused argues that some greater explanatory detail for those various things that were not read out needed to be provided. [12] Section 487.07(1)(a) to (e) states as follows: 487.07 (1) Before taking samples of bodily substances from a person, or causing samples to be taken under their direction, in

execution of a warrant issued under section 487.05 or an order made under section 487.051 or under an authorization granted under section 487.055 or 487.091, a peace officer shall inform the person of (a) the contents of the warrant, order or authorization; (b) the nature of the investigative procedures by means of which the samples are to be taken; (c) the purpose of taking the samples; (d) the authority of the peace officer and any other person under the direction of the peace officer to use as much force as is necessary for the purpose of taking the samples; and (d.1) [Repealed, 2000, c. 10, s. 20] (e) in the case of samples of bodily substances taken in execution of a warrant, (i) the possibility that the results of forensic DNA analysis may be used in evidence, and (ii) if the sample is taken from a young person, the rights of the young person under subsection (4). [Underlining added] [13] Paragraph 6 of the warrant says this: That Erlan ACOSTA, born February 22nd, 1990, shall be detained for the purpose of executing the warrant for a period no longer than is reasonably necessary in the circumstances and shall accompany the Peace Officer for that purpose, and before executing the warrant Erlan ACOSTA, born February 22nd, 1990 shall be informed of: a. His right to retain and instruct counsel without delay and he should be afforded a reasonable opportunity to do so prior to

obtaining the bodily substance; b. The contents of the warrant; c. The nature of the investigation procedures by means of which a bodily substance is to be obtained; d. The purpose of obtaining a bodily substance; e. The possibility the results of forensic DNA analysis may be used in evidence; and f. The authority of the Peace Officer, and any other person under the direction of the Peace Officer, to use as much force as is necessary for the purpose of taking the samples. [Underling added] [14] It will be seen that subparagraphs (b) through (f) of paragraph 6 of the warrant correspond precisely to ss. (a) through (e) of s. 487.07(1) of the Criminal Code. Subparagraph 6(a) of the warrant requires that the applicant be informed of the right to counsel and being afforded an opportunity for same. The applicant does not raise this as an issue, although I do propose in a slightly different context to read some of the transcript that deals with that topic. [15] Turning to s. 487.07(1), the operative words are just before ss. (a), "a peace officer shall inform the person of". The section is then followed by (a) through (e). It is clear that it was not read. Counsel argues that, in addition, the applicant was not satisfactorily informed in some other way of what the section requires. [16] Subsection (a) deals with the contents of the warrant which must be provided by way of information.

In that regard, I now refer to those portions of the transcript reads that indicate what was said at the time of execution: Line 30 we have a new warrant ... Line 43 to 45 And this is exactly the same process as before, we're just going to take your blood, it's gonna get submitted and compared. Line 48 to 52 Nothing's changed the ... offences are all the same, and it's the same investigation, the alleged offence of kidnapping of [H.C.] on September seventeenth. [17] In addition to all of that, the accused was given a copy of the warrant which he took with him to the phone when he spoke in private to his lawyer. As I have indicated, I will read more about that later. [18] Subsection (b) of 487.07(1) requires the informing of "the nature of the investigative procedures by means of which the samples are to be taken;" I am not going to read parts of the transcript. It was clear it was described, but it was more or less described contemporaneously with the taking of the samples, after the accused had spoken to his lawyer and was ready to agree to the process: Line 43 And this is exactly the same process as before, we're just going to take your blood, it's gonna get submitted and compared. Lines 106 and 107 So Ed, Ed here's gonna walk you through the process. [19] "Ed" refers to Detective Constable Russell. [20] In addition, the warrant itself, of which the applicant at that point

had a copy, states this on page 3 in the middle of the paragraph that starts out, "This is therefore to authorize," and then farther down the page, "Cause to be taken by another person the number of bodily substances." Now I will quote: by means of the investigative procedures described in Subsection 487.06(1) of the Criminal Code by the taking of blood by pricking the skin surface with a sterile lancet and provided that, if the person taking the samples is not a Peace Officer, he or she take the samples under the direction of a PEACE OFFICER. [21] In paragraph 7 of the warrant: That the investigative procedures described in Subsection 487.06(1) of the Criminal Code are carried out: a. In a private room not accessible to public view; b. Appropriately in order to ensure that the privacy of Erlan ACOSTA is respected in a manner that is reasonable in the circumstances; and c. Under sanitary conditions to ensure necessary health precautions. [22] With respect to subsection (c), "the purpose of taking the samples," the warrant says this at the bottom of page 2: AND THAT a bodily substance has been found on or within the body of any person or thing or at any place associated with the commission of the offences ... [23] Another quote from the warrant: AND THAT forensic DNA analysis of a bodily substance from Erlan ACOSTA, born February 22nd, 1990, will provide evidence about whether

the bodily substance found on or with the body of any person or thing or at any place associated with the commission of the offences was from that person ... [24] Orally from the transcript, the following occurs right near the commencement of the meeting on that date with Mr. Acosta: from lines 34 to 39: Lines 34 to 39 So we have a, a bunch of exhibits in the investigative record and some of them have DNA typing profiles on it. So we're here to get another biological sample [to wit] your blood, and that -- we're gonna compare that against all the other exhibits, the DNA profiles in our investigative records so it's just -- Line 40 Does my lawyer know about this? [25] The applicant argues that the portions I read from the warrant and what I have just read in terms of oral comments by the officers are not sufficient in this particular case to satisfy the requirement that he be informed about the purpose of taking the samples. This is because of the clear indication in the ITO that its primary goal was to remedy a deficiency in the first warrant - its restrictions to comparisons of the DNA with specific restricted exhibits. The application argues that this is it's "purpose" and that ss. (c) mandates that he was entitled to be informed of it. [26] I disagree. That is not part of the purpose of the warrant as it is meant in 487.07(1)(c). Rather, that is part of the Crown's and the

police officers' investigatory decision-making process. The accused is entitled to have it disclosed to him in the fullness of time and certainly in sufficient time prior to preparation for trial, and that was ultimately done, but it is not the sort of thing which is required to be disclosed to him in order to explain the purpose of the taking of DNA samples as meant by ss. (c) of the Criminal Code, the section that we are speaking of. That requirement to inform was fulfilled when the officer told the applicant that the applicant's blood was for comparison against "all the other exhibits", as noted at paragraph 24 of this ruling. [27] Subsection (d) requires the informing of the authority of the police officers to use force. The officers did not do this orally. It is, however, expressly revealed in the warrant, a copy of which was provided, in paragraph 6(f) where it states that the accused "shall be informed of": f. The authority of the Peace Officer, and any other person under direction of the Peace Officer, to use as much force as is necessary for the purpose of taking the samples. [28] Subsection (e) of s. 487.07(01) is the right to be informed of the possibility that the results of the DNA analysis may be used in evidence. Again, nothing was mentioned orally. It is, however, obtained in the warrant in two places, one in paragraph 6(e), the accused "shall be informed of (e)

the possibility the results of forensic DNA analysis may be used in evidence;" and it is also referred to in a less direct way in an earlier part of the warrant which I read earlier in a different context where it says, "AND THAT forensic DNA analysis of a bodily substance from Erlan ACOSTA ... will provide evidence about whether the bodily substance found on ..." and so on. [29] When given the warrant, Mr. Acosta was also given a number of opportunities to read it. Starting at line 40: Q Does my lawyer know about this? A No, not yet. So you have a right to speak with your lawyer, ah, before we execute this warrant. Then Line 47: So I can read all this out to you, or you can read it for yourself. Nothing's changed the --- offences are all the same. And commencing at Line 54: Q Do you want me to read it out for your, or do you wanna A No, Q read it or? A I'll just read it while I call my lawyer. [30] Mr. Acosta was given a copy of the warrant after that. He left the interview room. He used a telephone down the hall. He controlled how long he spent there. He had privacy. The officers have no idea what, if anything, was said and exercised no control over when he returned. Upon his return, the following exchange occurred commencing at line 83: Q You spoke with your lawyer and you told him the contents of the DNA warrant? A Yeah, more or less, I told him that you guys were here to

get DNA but I didn't really read all this. Q Okay. And, so you received legal advice, I don't - don't tell me what the legal advice was - but you got legal advice? A Yes. [31] The accused argues that the line, "I didn't really read all this" should have caused the officers to ensure that it had been read or else they should have read it to him. However, I am of the view that the conjunction that immediately precedes that phrase, "but" as in "but I didn't read all this," ties in the prior phrase - when after being asked if he spoke to his lawyer and told him the contents of the DNA warrant, "Yeah, more or less. I told him that you guys were here to get DNA BUT I didn't really read all this." This suggests that that phrase means, "I didn't really read all this to my lawyer." At best, it is ambiguous. As this is a Charter application, the onus is on the applicant, and I am unable to conclude that he told the officer or intended to tell the officer that he had not read it. I have no idea whether he did or did not read it. Neither, I suggest, did the officers, but I am unable to conclude that he said that he had not read it. What I do know is not long before that, and I have already read this part of the transcript, the officers had offered to read it. Mr. Acosta had answered "no", and that he had it while he spoke to his lawyer. [32] The applicant argues that because a proper

execution of the warrant requires that he be informed of those items noted in s. 487.07(01), it is necessary that the warrant be read to him. Alternatively, if it is not necessary to do that, it is certainly necessary to give him a much more full explanation than he received. Neither counsel were able to direct me to any authority, other than a 2001 Provincial Court decision, which addresses directly the issue of whether the warrant must be orally read out in order to comply with the duty to inform. I do not intend to attempt to answer that question, nor do I need to in the circumstances of this case. [33] I am satisfied that it was not necessary to read the warrant out in the circumstances in order to satisfy the duty to perform. That duty was satisfactorily performed by, and Mr. Acosta's right to be informed was satisfactorily fulfilled by, a combination of: 1. The officer asking if Mr. Acosta wanted it read out; 2. Mr. Acosta declining that offer; 3. His being given a copy of the warrant; and 4. His being allowed to speak with his lawyer in private for as long as he wanted with the warrant in hand. [34] It follows that the accused has failed to establish that his right to be informed and the officers' duty to inform of the various component parts of s. 487.07(01) was a breach of the Charter. [35] The accused also argues that his rights have been breached by the failure of

the police to comply with s. 487.057(1), which requires that a form for the Provincial Court be completed and forwarded "as soon as feasible". [36] It is imperative that such directions not be treated in a superficial manner and that they be taken seriously and complied with. Here, the sample was taken on June 19, 2017 and not forwarded until July 7, 2017. The officer under cross-examination agreed that it certainly could have been done sooner. When asked if it was done "as soon as feasible", he demurred saying he was not sure. [37] If this was not done as soon as feasible in this case, it is certainly non‑compliance with the Criminal Code. It does not follow that that makes it a Charter breach. However, if it is a breach, once again, the burden is on the applicant to establish that this was not done "as soon as feasible" and I am simply unable to come to that conclusion. Consequently, I am unable to conclude that it was a Charter breach. [38] The application fails. "Silverman J."