R. v. Pham, 2010 ABQB 278

Court of Queen ’ s Bench of Alberta Citation: R. v. Pham, 2010 ABQB 278 Date: 20100423 Docket: 080822315Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Van Thanh Pham and Lan Nguyen Dang Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.C.

Hawco _______________________________________________________ [ 1 ] On January 14, 2010, following a voir dire with respect to the validity of a search warrant which had been obtained against the Accused, I ruled that, absent those portions of the Information to Obtain (“ITO”) which dealt with information flowing from a digital recording ammeter (“DRA”), the search warrant would not have been issued.

The basis for that ruling was that, given that the evidence with respect to the thermal detection device known by the acronym FLIR was not to be considered to be cogent evidence, the search warrant could not have been issued based upon what was left in the ITO.

[ 2 ] I had come to the conclusion that one of the key factors, if not the key factor, in obtaining the warrant was the reference to the prior drug-related criminal history of Mr. Pham. I found that history to be both incorrect and incomplete and that it would have had the effect of tainting the rest of the evidence. The only other evidence pointing to the use of the house as a grow operation was also somewhat slanted.

While the informant suggested that certain signs pointed to the house being unoccupied, the fact is that the house was occupied. [ 3 ] I am thus left with there being nothing placed before the justice of the peace which would or could be sufficient to justify the issuing of a search warrant. [ 4 ] The next step in the proceedings was to determine, there having been a breach of the Accused’s rights under the Charter , whether the evidence should be excluded pursuant to section 24(2) of the Charter . [ 5 ] Our Court of Appeal in R.v.

Ngai , 2010 ABCA 10 examined the recent trio of decisions of the Supreme Court in Grant , Harrison and Suberu . In Ngai , the Court, in considering whether the evidence should be admissible, stated this, at para. 45: This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence.

The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. [ 6 ] The Court concluded that the actions of the police did not represent a “brazen and flagrant” disregard of the Charter and allowed the evidence, which it determined to be extremely reliable, to be admitted. [ 7 ] In R. v.

Goodwin , 2009 ABQB 710 , Justice Nielsen reviewed the Grant decision as well as Suberu and concluded that in that case, the police officers were acting in good faith in everything that they did. Notwithstanding that, he came to the conclusion that admission of the evidence would bring the administration of justice into disrepute and excluded it. [ 8 ] The most recent pronouncement from the Supreme Court, on this topic, is R. v. Morelli , 2010 SCC 8 .

Once again the Supreme Court was considering evidence having been obtained by virtue of breaches of the Charter and were faced with the issue of whether to exclude the evidence.

At para. 98, the Court reiterated its decision in Grant , at para. 71, to the effect that in considering whether to exclude evidence under section 24(2), we are was bound to apply the test which it set out in Grant , at para. 71, which is as follows: [U]nder s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 9 ] In Morelli , the Charter-infringing conduct was the search of the accused’s home and the seizure of his personal computer. That seizure was as a result of obtaining a warrant and resulted in finding extensive pornographic material on the accused’s computer.

In considering the evidence submitted on the ITO, the court noted that the officer who prepared the ITO was neither reasonably diligent nor mindful of his duty to make full and frank disclosure. The court found that the ITO was drafted in a misleading way, resulting in the issuance of a warrant on insufficient grounds. At para. 102, the Court said: The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct.

Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to

mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant. [ 10 ] Importantly, the Court accepted the trial judge’s findings that there was no deliberate misconduct on the part of the officer who swore the statement.

However, it went on to state (at para. 103): The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers. [ 11 ] At para. 109 and 110, the Court stated: In my view, the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private “place” in the home on the basis of misleading, inaccurate, and incomplete Informations upon which a search warrant was issued.

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices. [ 12 ] My difficulty with this case is that there was not full and frank disclosure. The information given was incorrect and misleading. That had the effect of tainting the whole warrant. This was not a deliberate case of misconduct, but it was a case of unacceptable police conduct given their duty to the courts. The search was improper.

The evidence will be excluded. Heard on the 12 th day of April, 2010. Dated at the City of Calgary, Alberta this 23 rd day of April, 2010. G.C. Hawco J.C.Q.B.A. Appearances: Frank Polak Public Prosecution Service of Canada for the Crown Charles Stewart, Q.C.

Stewart & Andrews For the Accused Pham Hershel Wolch, Q.C. Wolch Hursh Dewit Silverberg & Watts For the Accused Dang