R. v. Vo, 2011 ABQB 701

Court of Queen ’ s Bench of Alberta Citation: R. v. Vo, 2011 ABQB 701 Date: 20111115 Docket: 100257419Q1 Registry: Calgary Between: Her Majesty the Queen - and - Quy Vo Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Ruling on a Voir Dire of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ I.

Introduction [ 1 ] This voir dire ruling relates to evidence found as a consequence of searching a garage, and motor vehicle parked therein, located on premises owned by Mr. Vo. The Defence argued two bases for alleging the evidence was obtained in breach of Mr. Vo’s right to be free from unreasonable search and seizure, pursuant to s. 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Ac t, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ( Charter ). First, the Defence argued the police did not have reasonable and probable grounds to justify issuing a search warrant in respect of Mr. Vo’s residence. Second, if the warrant was validly issued, the Defence argued the scope of the search exceeded that which was judicially authorized. [ 2 ] After reviewing the record, as amplified by Officer Weppler’s viva voce evidence, I find the ITO contained sufficient grounds for the Justice of the Peace to have authorized the warrant.

As a result, this line of attack against the validity of the search warrant fails. However, I find the warrant did not authorize a search of any outbuildings, including the detached garage or any motor

vehicle parked therein. Search warrants are, of necessity, location-specific and the Crown has not persuaded me that a liberal

interpretation of the language used in the impugned warrant is either justified or correct in law. [ 3 ] Having found a breach of Mr. Vo’s s. 8 right, and on the facts before me, I am opinion that admitting the evidence would bring the administration of justice into disrepute. As a result, I grant the relief requested by the Defence pursuant to s. 24(2) of the Charter , and render inadmissible the evidence discovered as a result of searching the detached garage and motor vehicle. II.

Facts [ 4 ] On February 17, 2010, following a tip from an informant, the Calgary Police Service (CPS) undertook an investigation into a purported Asian male working for “Tony”, using a particular phone number, and selling crack cocaine from or near the Midnight Café. [ 5 ] The CPS called the phone number supplied by the informant and asked for Tony. An unknown male answered and said he was a friend of Tony’s. The officer arranged to purchase $80 worth of crack cocaine and agreed with the unknown male to meet at a designated location to effect the sale.

A short time later at the designated location a blue Toyota Camry driven by an Asian male appeared. The driver nodded to the undercover officer to approach. The officer walked over and leaned into the vehicle where the following conversation took place. Officer: “Let’s do it. I got the $80, you got the rock?” Unknown Male: “I got it. Get in.” Officer: “Why let’s just do it here. My buddies waiting in the pub.

Let’s just do it.” Unknown Male: “Not here, get in; I’m leaving.” The officer refused to enter the vehicle and the Asian male refused to meet around the corner, and instead the suspect drove off at which point surveillance was terminated. No sale of drugs actually took place, and the none of the officers actually observed any drugs on the suspect’s person or in the Camry during this sequence of events. [ 6 ] CPS determined the vehicle was registered to a female person residing at [...] Abbotsford Drive NE in Calgary, and the registered owner of the house located at that street address was Mr. Vo.

Through further investigation the police began to suspect Mr. Vo was the unknown Asian male and obtained his photo from the motor vehicle registry. Mr. Vo’s photo was shown to several officers who had observed the driver during the failed attempt to purchase drugs, including the undercover officer who leaned into the Camry and spoke with the unknown Asian male. All of these officers confirmed the driver of the Camry was Mr. Vo. [ 7 ] The next day the same undercover officer called the same phone number previously answered by the unknown male now suspected to be Mr. Vo. The following conversation took place.

Officer: “It’s Sam, Samuel from last night. What happened? You left me hanging and my buddy was pissed. Can you hook me up today?” Unknown Male: “No, I don’t have any today.” [ 8 ] On February 18, 2010 the CPS set up surveillance on the Midnight Café and observed Mr. Vo leave the café and enter the

same Camry observed the previous evening. Surveillance commenced on Mr. Vo and he was seen making a one minute stop at the street address [...] Penrith Crescent SE in Calgary. After this stop, Mr. Vo proceeded to drive to his home at [...] Abbotsford Drive NE, park in the detached garage, and enter his residence. [ 9 ] Fifteen minutes later Mr. Vo drove the Camry off the premises and proceeded to the intersection at 23 rd Ave. and 36 St. in Calgary. At this location an unknown person entered the Camry, stayed for less than one minute, and exited the vehicle into an alley. Mr.

Vo then returned home, parked the Camry back in the garage, and again returned to his residence. [ 10 ] On February 19, 2010 a Justice of the Peace granted a search warrant pursuant to s. 11 of the Controlled Drugs and Substance Act , S.C. 1996, c. 19 (CDSA). This warrant authorised the search of “a place, namely: [...] Abbotsford Drive Northeast, Calgary, Alberta”. At 8:05 pm later that same day the search warrant was executed.

It turned out there was a secondary suite located in the house, which the police also entered and searched. [ 11 ] Drugs and related paraphernalia were found in the secondary suite, and drugs were found in the detached garage and in the Camry parked in the garage. While no drugs were found in Mr. Vo’s residence other items commonly related to the trafficking of drugs – such as baggies, scales, a knife, a mirror, a cutting board and a significant amount of cash – were seized from Mr. Vo’s kitchen and main living area.

In addition, a cellular phone corresponding to the number provided by the informant and used by the police during the investigation was discovered in Mr. Vo’s residence, and an 18-inch copper pipe was located in the Camry. [ 12 ] Mr. Vo and the occupants of the secondary suite were then arrested and charged with drug related offences. Mr. Vo was also charged with possession of a weapon for a dangerous purpose in respect of the pipe, pursuant to s. 88(1) of the Criminal Code . III. Issues [ 13 ] There are two primary issues before the Court in this voir dire. (

A) Was the warrant authorizing the entry and search of the residence located at [...] Abbotsford Drive NE in Calgary valid? (

B) If so, did the scope of the warrant include the detached garage located on the same premises, and any motor vehicle parked therein? IV. Positions of the Parties [ 14 ] The Defence challenged the validity of the search warrant by alleging the police did not possess sufficient reasonable and probable grounds that a Justice, acting judicially, could have issued the warrant. In particular, the Defence argued a lack of evidence pointing to Mr.

Vo’s residence as a place where drugs could reasonably be expected to be found. [ 15 ] The Defence also argued that the scope of the search warrant was too narrow to include the detached garage and Camry parked within. That is, the word “place”, in conjunction with the street address provided in the warrant, was not sufficient to extend the authorization for the search to include the garage or any motor vehicles contained therein. As a result, the Defence took the position that the search of the garage and Camry was equivalent to a warrantless search executed in breach of Mr.

Vo’s s.8 Charter right, and that any evidence thereby obtained ought to be excluded from the criminal proceedings against Mr. Vo. [ 16 ] The Crown argued that the search warrant was validly issued because the evidence clearly pointed to Mr. Vo running a drug trafficking operation, and that it was reasonable to suspect the drugs he was trafficking were being stored in his home. The Crown also underscored the standard of proof to obtain the warrant was for a Justice to satisfy himself on the balance of probabilities, rather than beyond a reasonable doubt.

Further, the Crown emphasised the deferential nature of the test to be met before a reviewing court should interfere with an authorizing Justice’s decision to issue a warrant.

[17] Regarding the scope of the search, the Crown argued that the Information to Obtain (ITO) clearly contemplated Mr. Vorunning a “dial-a-dope” operation from the Camry. Therefore, according to the Crown, it was reasonable to infer that the Justice intendedto authorized a search of the garage and Camry given the importance the Camry played in the nature of the suspected crimes. V. Analysis (

A) Was the warrant authorizing the entry and search of the residence located at [...] Abbotsford Drive NE in Calgary valid? [18] In my opinion there was sufficient evidence to support the Justice of the Peace issuing the warrant. In coming to thisconclusion I remain mindful of my role as a reviewing judge. In R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at 1452 theSupreme Court of Canada made it clear that a reviewing judge does not stand in the shoes of the authorizing judge.

The test laid out bythe Supreme Court is if the evidence, as amplified on review, supports the authorizing judge granting authorization for the warrant thenthe reviewing judge should not interfere. It matters not whether the reviewing judge would have come to the same conclusion andgranted the authorization had he or she reviewed the ITO at first instance. [19] The requirement for reasonable grounds to believe that a search of a place will afford evidence of crime comes from s. 11 ofthe CDSA. Information for search warrant 11.

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to acontravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlledsubstance, precursor, property or thing and to seize it. [20] On the facts, I am of the opinion that there were reasonable grounds to believe that a search of Mr. Vo’s residence woulddisclose evidence of Mr. Vo’s involvement in the drug trade, as set out in the ITO. As such, the Justice of the Peace did validly authorizethe search. My conclusion is informed, in particular, by the following evidence. (

i) Mr. Vo owned a phone number that allegedly belonged to a suspected drug trafficker, consistent with information provided bythe informant. Moreover, the police used this phone number during the investigation to set up a drug transaction, though the sale wasultimately unsuccessful. Mr. Vo’s ownership was established by his own admission to police and further evidenced by his possession ofthe cellular handset corresponding to that number.

(ii) Mr. Vo was identified by several police officers as the person driving the Camry who attended the undercover meet arranged forthe purpose of transacting a drug sale. Identification of Mr. Vo included confirmation by the undercover operative who leaned into theCamry and engaged in conversation with the driver thereby providing that officer with ample opportunity to clearly make out thisperson’s features. (iii) Mr.

Vo’s characteristics matched the informant’s description of the purported drug trafficker. (iv) The informant was prima facie reliable, having previously provided information to police that led to numerous search warrantsand the seizure of drugs, money and other property, and having never been convicted of perjury or obstructing justice. (

v) The in-person interaction Mr. Vo had with the undercover officer on February 17, 2010 left open a reasonable inference that Mr.Vo was in possession of drugs for the purpose of trafficking, notwithstanding a sale did not actually take place and drugs were notactually observed in Mr. Vo’s possession. (vi) The police observed Mr. Vo in his residence immediately before and after events that police believed were consistent with dial-a-dope drug trafficking. Specifically, the police observed Mr.

Vo move from his home, get in the Camry, and drive to a location wherecircumstances unfolded that police believed were consistent with a drug sale. Mr. Vo then returned immediately to his residence. (vii) Mr. Vo regularly parked the Camry at the address identified in the ITO, and he was the registered owner of the house situatedthereon. [21] On the strength of this evidence it was clearly open to the authorizing Justice to believe, on the balance of probabilities, thatMr.

Vo was likely in possession of illegal drugs for the purpose of trafficking and that he might be using his residence to support hisillicit trade. Consequently, it was reasonable to conclude that a search of Mr. Vo’s residence would afford evidence of the alleged crimes.Notably, the authorizing Justice was not required to be convinced beyond a reasonable doubt that this was so. As such, I decline tointerfere with the Justice of the Peace’s decision to grant authority for the search warrant in this case. (

B) Did the scope of the warrant include the detached garage located on the same premises, and any motor vehicle parkedtherein? [22] The warrant authorizing the search provided that evidence in respect of certain drug offences was expected to be found “in aplace, namely: [...] Abbotsford Drive Northeast, Calgary, Alberta”.

The warrant did not contain any general reference to outbuildings,any specific reference to the detached garage, and no mention at all of any motor vehicle. [23] I agree with and adopt the legal principles related to the requirement of location specificity in a search warrant as canvassedby the Manitoba Court of Appeal in the very recent decision of R. v. Le, 2011 MBCA 83 at paras. 76-79. Relevant excerpts from theseparagraphs that pertain to the matters at issue in this voir dire are set out below. 76 The starting point for consideration of the scope and reach of the warrant is R. v.

Caslake, (SCC), [1998] 1S.C.R. 51. This decision makes it clear that (at para. 12): .... ... [A]gents of the state can only enter onto or confiscate someone's property when the law specifically permits them to do so.Otherwise, they are constrained by the same rules regarding trespass and theft as everyone else. .... ... [T]he scope of the search is limitedto the area and to those items for which the law has granted the authority to search. To the extent that a search exceeds these limits, it isnot authorized by law. 77 A useful

summary of the current state of the law can be found in the decision of R. v. Charles, 2010 QCCQ 9178, where the courtnoted (at paras. 23, 36):

In short, protection of privacy rights requires that the location of the premises to be searched under a warrant be sufficiently or adequately designated. A warrant that designates in vague or incorrect terms the place to be searched will fail to guard against potential abuse from the police or confer too much discretion to the officers executing the warrant. In short, practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the premises to be searched. 78 Academic authorities are to the same effect ... In Scott C. Hutchison, James C.

Morton & Michael P. Bury, Search and Seizure Law in Canada , looseleaf (Toronto: Thomson Reuters Canada Limited, 2005), vol. 1, ch. 16, it is noted (at pp. 16-31, 16-32): As the common law consistently recognized that authority to search must be strictly limited to the precise structure or place set out in the order ..., a search of a dwelling-house does not import authority to search any outbuildings, garages, sheds, barns, receptacles, lockers, etc., at the same location as the principal residence. .... 79 Similarly, James A.

Fontana & David Keeshan, The Law of Search and Seizure in Canada , 8th ed. (Markham: LexisNexis Canada Inc., 2010), describe the law regarding location specificity in search warrants as follows (at pp. 87-88): The search warrant process is location-critical and a high degree of precision is expected in both the supporting documents and the warrant itself. [ 24 ] In the instant case the word “place” followed by a street address is too general and vague to be construed as including the detached garage and any vehicles discovered on the property.

To find otherwise would fail to guard against potential abuse from the police or confer too much discretion to the officers executing the warrant, as stated in Charles . These restrictions are necessary if Courts are to protect, ex ante , individuals’ fundamental right to privacy and freedom from unreasonable search and seizure. [ 25 ] The Court in Charles also captured the essence of the Crown’s argument in the instant case when that Court said “practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the premises to be searched”.

I agree with this principle, which is necessary to achieve effective law enforcement and the proper administration of criminal justice. However, in my opinion practical accuracy connotes more specificity than the vague language (and notable omissions) actually employed in the impugned search warrant before me. [ 26 ] The Crown invites this Court to interpret the scope of the search warrant based on the content of the ITO. Assuming, without deciding, that this approach is valid in law an examination of the ITO only reinforces a narrow

interpretation of the search authority. For example, the only specific place identified in the ITO that was likely to afford evidence of crime was the residence at [...] Abbotsford Drive NE. The following excerpts are taken directly from the ITO (all emphasis is mine). 23.

It is my experience and training as a drug investigator that persons involved in drug trafficking will have in their residence drugs, cash, packaging materials for the packaging of drugs for individual sale or bulk sale, scales to weigh the drugs, cell phones or other telecommunication devices which are used to conduct drug trafficking, score sheets which are used to keep track of dug sales and people owing money or money owed to and documents to the residence. 24.

It is my honest belief that there is cocaine, cash, telecommunication devices, score sheets, packaging materials, and documents of ownership in the residence of [...] Abbotsford Drive Northeast, Calgary, Alberta. It is my belief that executing a Controlled Drug and Substances Act [sic] search warrant at the residence of [...] Abbotsford Drive Northeast, Calgary, Alberta will afford evidence to support the charge of 5(2) Possessions [sic] for the Purpose of Trafficking contrary to the Controlled Drug and Substances Act [sic]. ... [ 27 ] While the ITO clearly alleged Mr.

Vo was running a dial-a-dope operation that implicated at least one motor vehicle, there was no specific request made of the Justice of the Peace to grant search authority in respect of the Camry, or the garage where it was regularly parked. It was plainly open for the officer swearing the information to include these places as targets for the search, and had

she done so the Justice of the Peace may well have granted the requested authorization. However, these omissions are fatal to theCrown’s position that the scope of the search authority extended to the garage and any motor vehicles parked therein. [28] I also note appellate authority supports this reasoning. In R. v. LaPlante (1987), (SK CA), 59 Sask. R. 251the Saskatchewan Court of Appeal held that a detached garage that had been converted into a workshop was not within the scope ofauthority granted to search the accused’s dwelling-house.

The Court reasoned that the same special protection afforded to a dwellinghouse extended to a person’s office, shop and detached garage (para. 55). [29] Additionally, in R. v. Vu, 2004 BCCA 230 at para. 20, the British Columbia Court of Appeal rejected the notion that searchauthority granted in respect of a dwelling-house could be extended to legally search a motor vehicle located on the premises. Like theCrown urges this Court to do, the B.C. Court of Appeal considered – and then rejected – the suggestion that the ITO provided context tosupport an expansive

interpretation of the search warrant. In that case the ITO referred to a Pontiac but not to the Honda that wassearched. [30] In the instant case, the portion of the ITO requesting search authority referred to a residence but not to the Camry. While thedescription of the investigation in the ITO did refer to the Camry, without more this is not a sufficient connection to extend the scope ofthe lawful search.

When the officer turned her mind to where she expected evidence of crime to be discovered she referred exclusively tothe residence. [31] On review, the record was amplified through viva voce evidence of the officer who swore the ITO. The officer suggested herreason for not explicitly identifying the garage, any motor vehicles, or any outbuildings found on the property as targets for the searchwas because her training informed her that such specificity was not necessary. Good or bad faith conduct of the police is properlyconsidered within the first branch of the s. 24(2) analysis.

It is not a foundation upon which the state can successfully argue that anindividual’s Charter protected rights were not infringed. [32] In the result, I find that Mr. Vo’s right to be free from unreasonable search and seizure was violated in respect of the unlawfulsearch of Mr. Vo’s garage and the Camry parked therein. I will now turn to what, if any, remedy is warranted in the circumstances. VI. Remedy [33] In R. v. Grant, 2009 SCC 32 at paras. 71 and 133-139, the Supreme Court of Canada set out three primary considerations thatinform the s. 24(2) analysis.

First is the seriousness of the Charter infringing conduct. Second is the impact of the breach of theindividual’s protected Charter interests. Third is the impact of excluding the challenged evidence on society’s interest in having the caseadjudicated on its merits. [34] Within the context of this case, the seriousness of the Charter infringing conduct weighs in favour of excluding the evidence.While I am not of the view that the police intentionally and egregiously trampled on Mr. Vo’s rights, I express concern regarding howthe ITO was drafted and how the search was conducted.

In particular, four times the ITO mentions that Mr. Vo was present in theMidnight Café in August 2008 when a search warrant was executed against those premises whereupon 5.1 grams of “cocaine” wasdiscovered. The problem with this inclusion is two-fold. [35] First, no analysis was performed on the recovered substance to prove it was, in fact, cocaine or any other illegal drug. To thisend the conclusory statements in the ITO that definitively identified the substance as cocaine was misleading. Identifying those 5.1grams as “suspected drugs” would have been more accurate. [36] Second, Mr.

Vo was never connected to the suspected drugs. It seems the police were inviting the Justice of the Peace to drawan erroneous inference that Mr. Vo’s presence in the café during the execution of the warrant in August 2008 made it more likely that hewas an active drug trafficker in February 2010. For example, at para. 24(

e) of the ITO the officer attempted to draw a corroborative linkbetween that historical fact and present allegation. However, the former is not in any way probative of the latter. Repeating that statementon four separate occasions and attempting to use that statement in the manner described above could be construed as intending to give afalse impression. At minimum, the use of this unsubstantiated information was not in keeping with the spirit of the obligations upon anapplicant seeking an ex parte order.

[ 37 ] In addition, when executing the warrant against [...] Abbotsford Drive NE, the police encountered a locked secondary suite within the house. Without any lawful basis the police entered that residence, discovered evidence of drugs, and arrested the occupants. While the legal ramifications of that illegal search do not bear directly on the instant case, that police conduct was part of the same transaction as the search executed against Mr.

Vo’s property, and demonstrates a certain degree of disregard for Charter protected rights. [ 38 ] The second consideration under Grant , the impact of the breach on the individual’s Charter protected interests, also weighs in favour of excluding the evidence. As noted in LaPlante , the same special protection afforded to dwelling houses – grounded in the fundamental right to privacy – extends to a detached garage on the premises. An unlawful search in this respect is an invasion of privacy of the highest order.

While a person has a reduced expectation of privacy in a motor vehicle, that expectation is not zero, particularly when the vehicle is parked within the confines of a private garage. I find the impact of the breach on Mr. Vo’s right to be free from unreasonable search and seizure was serious. [ 39 ] The third consideration under Grant , society’s interest in having the case adjudicated on its merits, favours admitting the evidence. The evidence found in the Camry and in the garage is very reliable and probative of the allegations facing Mr. Vo.

In other words, the discovery of actual cocaine, in conjunction with other drug-related paraphernalia found in Mr. Vo’s residence and the observations of police while Mr. Vo was under surveillance, make it more probable that Mr. Vo is guilty of the offences for which he stands charged. It goes without saying that society has a genuine interest in preventing the illicit drug trade and sanctioning all those who participate. [ 40 ] However, taken together, I am of the view that admitting the evidence from the illegal search would bring the administration of justice into disrepute.

In arriving at this conclusion I note to the Supreme Court of Canada’s statements in Grant at paras. 68-69 with respect to the focus and purpose of the s. 24(2) analysis. 68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. 69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. [ 41 ] I am of the opinion that, viewed prospectively and considering the impact over the long-term, admitting the challenged evidence in this case would bring the administration of justice into further disrepute. I render this decision notwithstanding the difficulty this ruling might pose for the Crown in terms of continuing its prosecution against Mr. Vo. VII.

Conclusion [ 42 ] In the result, I exclude all evidence obtained pursuant to the unlawful search of Mr. Vo’s garage and the Toyota Camry parked therein. Heard on the 5 th day of October, 2011. Dated at the City of Calgary, Alberta this 15 th day of November, 2011.

W.P. Sullivan J.C.Q.B.A. Appearances: Max Kruger for the Public Prosecution Service of Canada, on behalf of Her Majesty the Queen Hersh Wolch for Mr. Quy Vo