R. v. Lee

2002 BCSC 1906 R. v. Lee Citation: R. v. Lee Date: 20020205 2002 BCSC 1906 Docket: CC010051 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA Ruling on the Validity of P54/98 on Voir Dire The Honourable Mr. Justice Cullen February 5, 2002

HER MAJESTY THE QUEEN

AGAINST See Chun LEE, Gou Din HO, Chuk Fong TAO, Wei Bo CHEN, Chak Nam CHAN, Siu Wah CHAU and Cheung HUNG Counsel for the Crown M. Devlin Counsel for the Defendant, See Chun Lee P. Leask, Q.C. D. Jevning Counsel for the Defendant, Gou Din Ho P. Hart Counsel for the Defendant, Chuk Fong Tao D. Sokol Counsel for the Defendant, Wei Bo Chen D. Gaffar Place and Date of Hearing: Vancouver, B.C. February 5, 2002 BAN ON PUBLICATION 648 CCC [1] THE COURT: This is an application by counsel for Lee and Ho seeking a review of my ruling with respect to the validity of P54/98 in light of the disclosure of the contents of a previously edited portion of the affidavit in support of that authorization. [2] The paragraph in question is paragraph 362(f) of the affidavit in support of P54/98, which in unedited form reads as follows: Sai Gua Lo (phonetic) Ho Gou Din frequently used the courtesy phone at the Ying Kee Restaurant in Richmond to return pages. Sai Gua Lo Ho Gou Din also carried a cell phone, but he does not give out the number. Informant C believed that Sai Gua Lo Ho Gou Din was currently busy selling heroin. Informant C was told by another person that about a month ago Sai Gua Lo Ho Gou Din was playing mahjong at the Ying Kee Restaurant. Sai Gua Lo Ho Gou Din had to get up from the table to attend to a drug deal, so See Chun Lee took his spot at the table. [3] When it was put before me

in the original application, the paragraph was edited and read as follows: "Sai Gua Lo" (HO, Gou Din) frequently used the courtesy phone at the Ying Kee Restaurant in Richmond to return pages. "Sai Gua Lo" (HO, Gou Din) also carried a cell phone, but he does not give out the number. Informant "C" believed that "Sai Gua Lo" (HO, Gou Din) was currently busy selling heroin. ●●. "Sai Gua Lo" (HO, Gou Din) had to ●● attend to a drug deal, so "See Chun" (LEE) took his spot ●●; [4] In the course of my reasons for finding P54/98 to be valid against Lee and Ho, I referred to the edited paragraph and the Crown's submissions in relation to it at paragraph 95 of my ruling, which was issued January 4, 2002, as follows: The Crown submits that the surveillance of Lee on October 15, 1998 (summarized in paragraph 359 of the P54/98 affidavit), should be read with Informant C's information given the following day (October 16, 1998) to the effect that Lee was standing in for Ho and dealing in heroin. Taken by themselves, Informant C's information and the police surveillance may not add up to a credibly based probability. However, when placed in the context of the totality of the evidence, including these other meetings with Ho, the clear evidence of Ho's involvement in the distribution of heroin and the persistent assertions by the various informants of the nature of Lee and Ho's relationship,

this evidence, in my view, adds to the probability that the interception of Lee's private communications would afford evidence of the offences under investigation. [5] After my ruling in P35/99, a subsequent authorization to P54/98 in which I referred to the same paragraph as set out and edited in the affidavit in support of that authorization, counsel for Lee sought a judicial summary of the paragraph and in the result the paragraph was unedited and provided to the court and counsel for the accused. Following receipt of that additional information, counsel for Ho and Lee sought and were granted leave to reopen the issue of the validity of P54/98. [6] This is a somewhat unusual situation, as I am being asked to re-evaluate a ruling on the basis of additional evidence that was not before me in conducting my original review. The evidence not previously before me, however, was before the issuing judge, and, therefore, the question I am faced with is whether my analysis of the validity of the issuance of the authorization is sustainable in light of the unveiling of the edited information. While the focus is still whether there was any basis upon which the issuing judge could have granted the authorization, the question is whether my reasons for finding such a basis are undermined by the "new" evidence. [7] Counsel for Lee and Ho submitted that my finding in connection with

paragraph 362(f) represented a significant contribution to the totality of the circumstances by which the reliability of the informant evidence and the sufficiency of the probable grounds are to be judged. It was their submission that it was the misleading inference from the edited paragraph that, in effect, gave currency and specificity to the generalized circumstances established by the balance of the affidavit, and that without it neither the reliability of the informants nor the sufficiency of the grounds are established to their required extent. [8] Mr. Jevning offered a careful analysis of my ruling and the evidence underlying it and submitted that without the misleading inference of Lee's contemporaneous involvement with Ho in a specific heroin transaction offered by the offending paragraph, the totality of the circumstances is sapped of evidence which provides a context capable of supporting the reliability of the informant evidence and/or capable of supporting a credibly based probability that the interceptions sought would provide evidence of the specified crimes. It was counsel's submission that the loss of the misleading inference impoverished the overall effect of the evidence in the affidavit such that the basis for the authorization could not be said to exist. [9] Counsel for Ho in his submissions added the argument that, on a plain reading of my reasons, the

misleading inference was critical to my findings of validity and consequently its loss was fatal to the validity of the authorization. He also submitted that insofar as Ho is concerned the paragraph as unedited did not have the indicia of reliability as required in R. v. Garofoli (1990), 60 C.C.C. (3d) at page 161, and hence could not be used to augment the grounds for justifying the authorization. [10] The Crown submits that the misleading inference was not the "linchpin" of the analysis of the basis for the authorization, that at most it could be regarded as part of a pattern of activity justifying a conclusion that Ho and Lee were contemporaneously involved together in aspects of the heroin trade. The Crown submitted that the offending evidence could not be regarded as a vital part of my conclusion, that there was a basis for the authorization, and pointed to all the other evidence upon which my earlier ruling was based. [11] The circumstances of this application are somewhat troubling. The accused's right to make full answer and defence is at stake in proceedings such as these and must be protected by the court. Ultimately, because of the character of a review of the sufficiency of the grounds for an authorization, the Crown is often the party with access to information foreclosed to the court and to the accused. With that access comes a significant responsibility to ensure

that an accused's right to make full answer and defence is not impaired or impeded by any misapprehension of the basis for the admissibility of evidence which the Crown is tendering. [12] While in this case it is not asserted, and I do not doubt that the Crown's submissions were anything but inadvertently misleading as to the contents of the edited paragraph, it underscores the importance of vigilance in ensuring all parties have as full and complete an understanding of what is at issue as is possible to attain. It also emphasizes the need to ensure that ambiguity does not favour the Crown. [13] Having said that, I must turn to my task on this application, which is to gauge the effect of the loss of the offending inference upon the basis for the authorization. In my opinion, the loss of that inference does not deconstruct the basis for the authorization. It was my ruling that the credible probability for the authorization rested on the combined evidence of surveillance, intercepted communications and informant evidence. The misleading inference that Lee stood in for Ho on a single heroin transaction in October of 1998, was not the centrepiece of that ruling or of the analysis leading to it. On the contrary, it was, as appears from my reasons, somewhat peripheral and only added to the required probability insofar as it acquired weight from the totality of the circumstances acquired through other evidence. [14] In my view, while the loss of the offending inference detracts from the probability to the same extent it added to it, its presence or absence does not run to the heart of the justification for the authorization, and hence my ruling issued January 4, 2002, must stand. _________ The Honourable Mr. Justice Cullen