R v Ly, 2016 ABQB 113

Court of Queen ’ s Bench of Alberta Citation: R v Ly, 2016 ABQB 113 Date: 20160224 Docket: 110681988Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent (Crown) - and - Chieu Ly Applicant (Accused) _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read (Voir Dire) _______________________________________________________ Introduction [ 1 ] Chieu Ly was charged on an 8-count indictment with production of marijuana, possession of marijuana for the purposes of

trafficking and various firearms offences related to a handgun found when the police executed a warrant at a residence in Edmonton. Issue [ 2 ] At issue is whether his Charter rights have been breached, particularly his right to retain and instruct counsel, pursuant to s. 10(

b) of the Charter . The Defence also argues that the Accused’s s. 7 Charter rights were breached when he was detained and questioned while in medical distress. Evidence [ 3 ] On the peculiar circumstances of this case, Chieu Ly was actually arrested four times on June 13, 2011. The first arrest occurred shortly after noon and was conducted by Detective (now Inspector) David Christoffel of Edmonton Police Services (“EPS”). The second was conducted by an RCMP officer, Constable Anthony Walker shortly thereafter. The third occurred at 9:35 pm and was conducted by Constable (now Detective) Daniel Van den Berg of EPS.

The last occurred at about 11:30 pm by Corporal Eric Rajah, also of the RCMP. [ 4 ] Mr. Ly was detained briefly by Detective Christoffel prior to the first arrest. [ 5 ] Both the detention and the arrests were the consequence of an ongoing investigation into a suspected marijuana grow operation conducted by a joint operation between EPS and the RCMP. That is why officers from both police forces were involved. [ 6 ] On June 13, 2011, police obtained a warrant to search a residence in Edmonton and were keeping the residence under surveillance while waiting for the warrant to be obtained.

While they waited, the garage door of the residence opened and a person later identified as Mr. Ly backed out of the garage in a green Dodge Caravan. Detective Christoffel was not one of the officers on the scene but became involved when he was contacted by the officers at the residence who requested that he conduct mobile surveillance on the minivan. Detective Christoffel followed it to a local Tim Horton’s restaurant where it went through the drive-through and then returned to the residence.

When it returned, Detective Christoffel got out of his vehicle and approached the driver of the minivan at 11:57 am to tell him he was being detained pursuant to a search warrant obtained regarding a suspected marijuana grow operation. [ 7 ] Detective Christoffel then read from a card to tell Mr. Ly that he had the right to instruct counsel without delay and to give him the standard caution that he had the right to remain silent and anything he said could be used against him in court.

When he gave his evidence, Detective Christoffel had the card he had read from and was able to read exactly what he testified he read to Mr. Ly. When he was asked if he wanted to speak to a lawyer, Detective Christoffel said that Mr. Ly told him he did. [ 8 ] Detective Christoffel then remained on the driveway with Mr. Ly for a short period of time. [ 9 ] Constable Walker had been involved with some of the earlier surveillance operations connected with this investigation and was the affiant who obtained the search warrant issued on June 13, 2011 by Judge Kerby of the Provincial Court of Alberta.

The warrant was obtained at 11:35 am. [ 10 ] The other officers near the residence, one of them Corporal Eric Rajah, had been waiting to hear that a search warrant for the residence had been obtained. [ 11 ] Corporal Rajah testified that he heard from Constable Walker at about 11:30 am that the search warrant had been granted and it was at that point, that he and another officer went into the garage of the residence through the open garage door. They tried to gain entrance to the house through a man door in the garage but finding it was locked, returned to Mr. Ly and asked if he had keys to the residence. Mr.

Ly gave Corporal Rajah a key ring and pointed out the key that opened the residence door. He also told Corporal Rajah that there was an alarm set in the residence and provided him with the code to turn it off. [ 12 ] Corporal Rajah and the other officer used the key and the code to gain entry into the residence at 11:58 am. They checked the residence to ensure there were no other people in it and, while doing so observed that it obviously contained a grow operation. They heard fans, saw grow lights and saw growing marijuana plants at various places in the residence.

Corporal Rajah returned to tell Detective Christoffel this. Detective Christoffel testified that he then arrested Mr. Ly for marijuana production at 12:05 pm. [ 13 ] Meanwhile, having now obtained the search warrant, Constable Walker attended at the residence, arriving at 12:15 pm. By then, the other officers had already been inside the home. Mr. Ly remained in the custody of Detective Christoffel. [ 14 ] After he arrived, Constable Walker took over and re-arrested Mr. Ly. He gave evidence that he read Mr. Ly his Charter rights beginning at 12:20 pm.

Unfortunately Constable Walker could not be precise about exactly what he said to Mr. Ly. He did not take any notes. [ 15 ] His evidence respecting what he said to Mr. Ly was that he read him “10(a), 10(

b) and arrested him for production [of marijuana]”. Constable Walker did not bring to court the “ Charter rights card” he said he had read from and was not able to provide a very clear explanation of the rights he had informed Mr. Ly of. Constable Walker did say that s. 10 involved “the right to counsel and that he is being arrested” but he was not able to make a clear distinction between the rights afforded by s. 10(

a) and those afforded by s. 10(b), saying that both involved the right to retain and instruct counsel and to remain silent. [ 16 ] He said that he asked Mr. Ly if he understood and Mr. Ly said he did. Constable Walker said that he also asked Mr. Ly if he wanted to speak to a lawyer. According to Constable Walker, Mr. Ly’s answer was “yeah maybe”. [ 17 ] Constable Walker then briefly went into the house to look around. In the meantime, another EPS officer on the site, Detective

Paton, handed Mr. Ly over to EPS Constable Hafiz Virani who testified that he took Mr. Ly to the downtown detachment of EPS. They arrived at 12:40 pm, and Constable Virani strip-searched Mr. Ly and put him in cells. [ 18 ] Although Mr. Ly had now twice said he wanted to consult counsel, he was not given access to a phone. Constable Walker said it was a matter of policy to allow access to a phone once a person was transported to police headquarters and agreed that it was his responsibility as arresting officer to ensure that Mr. Ly could exercise this right. However, Mr.

Ly was not afforded the opportunity to consult counsel after he was strip-searched and locked up by Constable Virani. [ 19 ] Constable Walker did not follow Mr. Ly downtown immediately. Instead he took what he estimated to be about 10 minutes to look around the residence. He testified that he needed to do this because it would be his responsibility to particularize the charges. He then went downtown. He could not say precisely when he arrived because he had kept no note of his time of arrival. [ 20 ] Constable Walker was with Detective Paton at Police Headquarters, according to Constable Walker’s testimony.

Detective Paton did not give evidence. Constable Walker said he and Officer Paton went to see Mr. Ly in cells. It was not clear from his evidence if this happened immediately on Constable Walker’s arrival. He also testified that he had other tasks to attend to. He testified that when he saw Mr. Ly he did not look well and said he was not feeling well. After waiting 20 or 30 minutes and after consultation, Constable Walker said he and Detective Paton concluded they should take Mr. Ly to the Royal Alexandra Hospital. Mr. Ly was taken from cells but Constable Walker said before leaving he again told Mr.

Ly he was entitled to call a lawyer and offered him access to the phone room if he would like to call a lawyer. Constable Walker did not clearly say what Mr. Ly’s response was. He said this: “He advised me that he would contact -- I told him that we're going to be taking him to the hospital and releasing him on a PTA”. [ 21 ] Whatever his wishes were, Mr.

Ly did not then contact a lawyer before he was transported to the Royal Alexandra Hospital and was released on a promise to appear at 2:40 pm. [ 22 ] In the meantime, the search of the house continued and Corporal Rajah found a handgun in the living room of the home at 5:08 pm. He found a magazine first on a shelf under the coffee table along with a box of ammunition for a 9 mm gun and two small bags of marijuana. Continuing his search, he found a 9 mm handgun under the sofa. It contained one live round of ammunition. Beside it was a magazine loaded with another 11 live rounds.

He seized all of these items. [ 23 ] Corporal Rajah checked the firearms registry for the serial number on the handgun. It was not registered. [ 24 ] Corporal Rajah told Detective Christoffel that he had found a handgun and ammunition. [ 25 ] The search of the residence continued. Among other discoveries, a so-called “power cheat” was found. This consisted of modifications made to the foundation of the house, to expose the electrical power cables before they reached the meter.

Electrical modifications permitted the use of electricity in the home and various electrical cords went from this modification to power the lights and fans found for the use of the grow operation. [ 26 ] Once photographs were taken, Edmonton Power was contacted to dismantle the power cheat. [ 27 ] Now Detective, then Constable Van den Berg of EPS, along with his partner Constable Duane Bateman, were asked by Detective Christoffel to take over from another officer to wait outside the residence. They did so at 9:12 pm.

The information they were provided was that a search warrant was being executed within the residence and a firearm had been found. Their information was that the resident of the home had already been released on a promise to appear but was expected to return to the residence at some point. [ 28 ] Shortly thereafter, they saw a person approaching who met the description they had been provided of Mr. Ly. He was walking towards the residence. Detective Van den Berg approached Mr. Ly, first asking him where he was going. Mr. Ly’s response was “I live here”.

Detective Van den Berg then told him he was being arrested for possession of a firearm. He testified that he gave Mr. Ly the standard caution and told him he had the right to consult a lawyer. He began reading Mr. Ly his Charter rights at 9:35 pm. He said that he asked Mr. Ly if he wanted to contact a lawyer. Again, Mr. Ly responded “yes”. [ 29 ] Detective Van den Berg said he asked Mr. Ly if he knew why he was being arrested and Mr. Ly replied: “because I have firearm in the house”. [ 30 ] After that, they returned to Police Headquarters with Mr. Ly and, on the instructions of Detective Christoffel, Mr.

Ly was strip-searched again before being placed in cells. The search was conducted at 10:10 pm. Detective Van den Berg said they also had instructions, presumably from Detective Christoffel, to hold off on giving Mr. Ly telephone access. [ 31 ] Detective Van den Berg’s evidence was that they were relieved by Detective Christoffel at 10:35 pm. [ 32 ] Detective Christoffel testified that when he returned to Police Headquarters, he took over from Detective Van den Berg and that at 10:40 am he tried unsuccessfully to call counsel on Mr. Ly’s behalf.

He said he was told that the on-call lawyer was on another line and was not available. He testified that he must have had some conversation with Mr. Ly before attempting to make this phone call but that he does not have any notes about it and so cannot now recall what it was about. [ 33 ] Corporal Rajah went to EPS headquarters at about 11:15 pm and after stowing the seized items in a locker, met with Detective Christoffel who advised him of the charges Mr. Ly was facing. Then Corporal Rajah went to see Mr. Ly in the cell block and advised him of the charges he was facing. He arrested Mr.

Ly yet again, telling him he was under arrest for production of marijuana as well as trafficking, theft of power, careless storage of a firearm, possession of a handgun for a dangerous use and possession of a loaded and restricted handgun. He read Mr. Ly his Charter rights again at about 11:30 pm . [ 34 ] Again, Mr. Ly was told of his right to counsel. Corporal Rajah testified that he then asked Mr. Ly if he understood what I said. His answer was “so if I talk to him, what will he tell me”. Corporal Rajah said he replied that a lawyer could give him legal advice about his charges. Corporal Rajah said Mr.

Ly then responded, “yes, but maybe I don’t know how to talk”. Corporal Rajah said he repeated

that Mr. Ly could get on the phone and speak to a lawyer about his charges. Corporal Rajah said he believed that Mr. Ly understood hisrights. [35] Corporal Rajah said that before he could take Mr. Ly to the phone room, Mr. Ly asked if he could use the bathroom at 11:42pm. Corporal Rajah allowed him to do so. [36] After Mr. Ly had finished in the washroom, Corporal Rajah took him to the phone room at 11:45 pm. A few minutes later,Mr. Ly knocked on the door and asked if Corporal Rajah could assist him in telephoning Legal Aid.

Corporal Rajah did so but was notable to get anyone either at the Legal Aid number displayed on the wall or at an alternate number. He then assisted Mr. Ly to use theYellow Pages. At the first number Mr. Ly asked him to call, there was no answer. At a second number there was an answer and CorporalRajah exited and closed the door to allow Mr. Ly to use the phone. At one minute to midnight Mr. Ly was off the phone. Corporal Rajahasked him if he was able to speak to a lawyer and he said yes, to come see him tomorrow. [37] After Mr. Ly spoke to a lawyer, he asked Corporal Rajah for his medication.

While discussing what medication he needed andwhere it might be found, Corporal Rajah asked whether Mr. Ly had a licence for the gun. Mr. Ly replied that he did not. Analysis and Decision [38] Mr. Ly alleges that his rights under s. 7 and s. 10(

b) of the Charter were breached. [39] The accused has the burden of proving, on a balance of probabilities, that his Charter rights were breached. [40] I will deal firstly with the allegation that Mr. Ly was not afforded a right to retain and instruct counsel without delay. [41] The rights of s. 10(

a) and (

b) are linked. A detainee must be informed of the reasons for the detention so he or she may makean informed choice whether to exercise the right to counsel and, if so, to obtain sound advice based on an understanding of the extent ofhis or her jeopardy. [42] Mr. Ly’s first language is Vietnamese so although it was not argued by Defence, there may be an issue respecting whether hefully understood what the various police officers were saying when they told him what he was charged with. [43] In order to succeed in showing that his s.10(

a) rights have been breached, the Accused must show that there were positiveindications that he did not understands his rights as communicated and that the police did not make reasonable efforts to explain therights in a way that allowed him to understand them. [44] All of the police officers testified that they thought Mr. Ly understood what they were saying. For example, Constable Walkersaid after he told Mr. Ly that he was being arrested for production of marijuana and of his right to consult and retain counsel, he askedMr. Ly if he understood. Mr. Ly replied that he did.

In cross-examination, Constable Walker said he believed that Mr. Ly understoodEnglish and believed he understood his right to call a lawyer. [45] When Detective Van den Berg re-arrested Mr. Ly on the evening of June 13, 2011, he told him he was being arrested forpossession of a firearm and read to him an explanation of his right to retain and instruct counsel. He then asked Mr. Ly if he understood.The following exchange then took place on the police officer’s evidence: He replied, A little bit, sir. And again I'm referring to my notes here for his exact responses.

He said, “A little bit, sir, I know I can getlawyer.” I asked him, Do you understand why you are under arrest? He replied, “Because I have firearm in the house”. [46] From the evidence of the officers, it appears that Mr. Ly may have spoken English with an accent or in a fashion that made itapparent he was not a native speaker. The evidence of Detective Van den Berg, in particular, makes it appear that Mr. Ly’s spokenEnglish was not perfect. However, Mr. Ly did not call any evidence in the voir dire respecting his ability to understand English.

While itis true that he sat with an interpreter throughout this proceeding, I cannot use that fact as proof of some sort that he does not understandEnglish or that his English skills are too poor to enable him to have understood what the officers said to him. [47] In considering whether there has been a breach of s. 10(a), one must not look only at the words spoken by a police officer.

It isthe “substance of what the Accused can reasonably be supposed to have understood” that is important: R v Evans (SCC), [1991] 1 SCR 869 [48] As was pointed out in Evans in most cases it can be inferred from the circumstances what the Accused understands from whatthey have been told. One must consider the entire circumstances under which the Accused was detained in order to determine whatinference should be made. [49] At the first arrest, Mr. Ly was met by officers as he tried to return to his residence after a short absence. Constable Walkertold him he was being arrested for production of marijuana.

By this point, Detective Christoffel had already told Mr. Ly he was detainedbecause of a search warrant respecting possible marijuana production. [50] Having just left the house, Mr. Ly would have been well aware that there were marijuana plants in the residence. He hadalready given the police officers the key and the alarm code and knew they had gone in to take a quick look. Under the circumstances, itis difficult to believe Mr.

Ly would have had any misunderstanding about why the police were arresting him. [51] The Supreme Court said in Evans that the presumption of comprehension does not operate if there are detectable signsindicating a possible lack of understanding. Once such detectable signs exist, the police are obliged to take reasonable steps to ensurethat the accused understands the content of the Charter right: Evans at para 44.

[52] In my view, nothing Mr. Ly said nor any other indication would have raised any question in the mind of the police officers soas to oblige them to take any other steps in regard to the arrest for production of marijuana. [53] It is the same in respect to Mr. Ly’s later arrest for possession of the handgun. The arresting officer took pains to ensure thatMr. Ly understood why he was being arrested. When the officer asked Mr. Ly if he knew why he was being arrested, his response“because I have firearm in the house” removed any doubt about his understanding. [54] There was no breach of Mr. Ly’s s. 10(

a) Charter rights. [55] However, his comprehension of what he was charged with also arises in the s.10(

b) analysis. Mr. Ly was in custody and in thecontext of custodial interrogations, the purpose underlying s. 10(

b) is to support the right of detainees to choose whether or not to co-operate with the police investigation, by giving them legal advice on the situation the detainee faces. This purpose is achieved byrequiring that the detainee be informed of the right to consult counsel and, if the detainee requests it, that he be given an opportunity toconsult counsel. [56] There are two components of an accused’s s. 10(

b) rights: the informational component and the implementation component: Rv Bartle (SCC), [1994] 3 SCR 173. The informational component is satisfied when an accused is provided informationabout his right to counsel and access to counsel. The implementation component is triggered once a detained person has indicated adesire to exercise his right to counsel. What constitutes a “reasonable opportunity” depends upon the surrounding circumstances: R vProsper (SCC), [1994] 3 SCR 236. [57] Mr. Ly was informed of his right to counsel. Indeed, that occurred a number of times and, as I have already said, there is littledoubt he understood he had this right. [58] The crux of Mr. Ly’s s. 10(

b) argument is that his right to implement his request to speak to a lawyer was breached. Therelevant evidence is as follows. [59] In terms of the earlier arrest, there are slight discrepancies in the evidence of the various officers as to the timing of events.What is clear, however, is that Mr. Ly was first detained shortly before noon on the day in question. Yet he did not succeed in actuallyspeaking to a lawyer until almost midnight on that same day.

On its face, that is a delay that is clearly unacceptable. [60] However, during a good portion of that time, from 2:40 pm when he was dropped off at the hospital by Constable Walkeruntil about 9:35 pm when Detective Van den Berg re-arrested him on his driveway, Mr.

Ly was not in police custody, having beenreleased on a promise to appear by Constable Walker because he was undergoing treatment at the hospital. [61] It is, in my view, only the period between when he was first detained at 11:57 am and when he was released at the hospital at2:40 pm and the second period when he was again arrested at 9:35 pm and when he was ultimately placed in the phone room at 11:45 pmthat must be considered in determining whether Mr. Ly’s s. 10(

b) Charter rights have been breached. In his written submissions, counselfor Mr. Ly agrees that this is so. [62]

Section 10(

b) gives the right to retain and instruct counsel “without delay”. This means immediately. The immediacy of theobligation is subject only to concerns for officer safety or reasonable limitations prescribed by law and justified under s. 1 of theCharter: R v Suberu 2009 SCC 33 , [2009] 2 S.C.R. 460. [63] I will deal firstly with the period after Mr. Ly’s first arrest. Constable Walker’s evidence about what he said to Mr. Ly wassomewhat vague. He did not make notes and had not brought with him the “Charter card” he said he used when he told Mr.

Ly of hisright to consult and retain counsel. [64] The evidence was that Mr. Ly was arrested by Constable Walker at 12:20 pm. Mr. Ly was taken to police headquarters,arriving at 12:40 pm. It is clear that he was then placed in cells after being searched and not given immediate access to a telephone,because those were the instructions to the officer who transported him. Constable Walker agreed in testimony that it was hisresponsibility as arresting officer to ensure Mr. Ly was given access to a telephone to contact a lawyer. He did not transport Mr.

Ly topolice headquarters, personally, and did not follow immediately. His evidence was that he first went into the residence for about tenminutes. He did not record a time when he arrived at police headquarters. [65] When he did arrive, Constable Walker’s evidence was that he did go to cells where he had a conversation with Detective Patonwho was already there. It was not clear, however, that he went to cells immediately on his arrival at headquarters. There was also,according to Constable Walker, “other stuff” they had to do such as making sure that Mr.

Ly’s clothing and personal effects were dealtwith. [66] Constable Walker had no specific notes of what he did first or the time that elapsed before he went to cells. When he got to thecell block, Constable Walker said both he and Detective Paton noticed that Mr. Ly did not look well. He said that, at first, they bothwondered if Mr. Ly might simply be faking ill health so they watched him for twenty to thirty minutes. [67] Constable Walker and Detective Paton ultimately decided that Mr. Ly was not faking ill health and they should take him tothe hospital.

It was not until just before they left for the hospital that Constable Walker asked Mr. Ly if he wanted to consult a lawyer.He said that Mr. Ly responded “maybe later” or words to that effect. [68] To summarize, during the more than two hours between his arrest and his release at the hospital, Mr. Ly did not consult alawyer and was not given the opportunity to do so until just before being taken to the hospital. [69] Mr. Ly’s ill health was stomach related on the evidence. He was seated in the cell doubled over and holding his stomach whenConstable Walker saw him.

However, Constable Virani, who took him to headquarters, gave no evidence of noticing any healthconcerns. It seems that Mr. Ly’s symptoms developed while he was in custody.

[ 70 ] Before going further, I will also repeat the facts related to the later period. [ 71 ] After his final arrest, Mr. Ly was again taken to police headquarters, arriving at 10:08 pm according to Detective Van den Berg. However, after being strip-searched again, instead of being placed in the phone room, Mr. Ly was again placed in cells. The police officer speculated that there might have been a concern about giving Mr. Ly telephone access at that time -- the search warrant was still in progress, and Mr.

Ly might telephone someone who might interfere with the search at the residence or something else could be discovered in the house that might lead officers to another location and that Mr. Ly could contact someone who could interfere with the search for evidence at the other location. [ 72 ] As stated above, the Supreme Court has said in R v Prosper that once a detainee has indicated a desire to exercise his right to counsel, the state is required to provide him with a reasonable opportunity to do so and what constitutes a “reasonable opportunity” will depend upon all the surrounding circumstances.

The meaning of s.10(

b) was further clarified by the Supreme Court in R v Suberu , 2009 SCC 33 , stating at paragraph 44 : In our view, the words “without delay” mean “immediately” for the purpose of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [ 73 ] Immediacy does not mean instantaneously and other practical considerations may also play a role.

See for example R v Nelson , 2010 ABCA 349 . [ 74 ] The onus is on the Crown to demonstrate that a delay in the right to counsel is justified in the circumstances. This includes situations where the delay arises from medical concerns. [ 75 ] Concern for officer safety was acknowledged by the Supreme Court in Suberu as an exception to the immediate facilitation of the right to counsel. [ 76 ] Has the Crown shown the delay in this matter was justified? [ 77 ] After the first arrest, when Mr. Ly was taken to Police Headquarters, other than Mr.

Ly’s illness, there was no reason given by Constable Walker for the delay in allowing Mr. Ly access to the telephone room. He said he had other duties but none were urgent or important enough that they should have taken precedence over the immediacy of allowing Mr. Ly access to counsel. There were no other concerns voiced by the arresting officer on the first arrest about police safety, and objectively there could be no real concern. The search warrant was still being executed but the police had complete control of the residence, and there were no other exigent circumstances connected with officer safety.

Indeed, the fact that Mr. Ly was released on a promise to appear a few hours later speaks to the fact that there were no officer safety concerns. [ 78 ] There was, of course, the issue of Mr. Ly’s illness, something beyond the control of the officers. Some delay is justified and excusable because of the illness and the necessity for the officers to make decisions about what to do. However, that does not justify the entire delay. In Constable Walker’s own evidence, he indicated that the process to determine if Mr. Ly was faking illness and the decision to take him to the hospital took only about 20 to 30 minutes.

That does not explain all of the delay and, in my view, there is little doubt that the police failed to provide Mr. Ly with a reasonable opportunity to exercise his right to consult counsel immediately after the first arrests. [ 79 ] The situation after the second arrest, in the evening, was somewhat different. Unlike the situation in the morning, Constable Van den Berg testified he had been specifically asked by Detective Christoffel to “hold off” permitting Mr. Ly to exercise his s.10(

b) rights. [ 80 ] I recognize that by the second arrest, the firearm had been found and Mr. Ly’s jeopardy was therefore different. As well, as is pointed out by Crown in their argument, after Mr. Ly’s arrest and Detective Christoffel’s departure, Corporal Rajah was left alone at the residence, awaiting the arrival of Epcor to dismantle the electrical cheat. However, this is not the type of volatile or high risk situation that could justify suspension of Mr. Ly’s Charter rights. Mr. Ly had already been released for a number of hours and could have telephoned anyone he wished during that time period.

There is nothing in the entirety of the evidence to indicate that Corporal Rajah was in any jeopardy. The search was completed and all evidence required had been seized. Corporal Rajah remained on the scene only because Epcor had not yet arrived. Nothing had been found that led the officers to any other location that remained unsecure.

The fact that Corporal Rajah was left on his own in the residence is, in fact, some evidence that the police officers had no safety concerns since it seems clear other officers could easily have been dispatched or remained with him if there was concern. [ 81 ] The Crown has not shown that officer safety concerns justified delay in implementation of Mr. Ly’s counsel rights after the later arrest. [ 82 ] I conclude that Mr. Ly’s s. 10(

b) right to retain and instruct counsel was breached a second time after the later arrests. [ 83 ] Before considering the effect of these Charter breaches, I must also consider the Accused’s argument regarding his s. 7 right to liberty and security of the person. [ 84 ] The crux of his argument was that in asking Mr. Ly if he had a license for the handgun, and receiving the answer that he did not, Corporal Rajah breached Mr. Ly’s s. 7 rights. [ 85 ] Although he had spoken to a lawyer by this time, there is no doubt that the statement was incriminating, in that one of the charges Mr.

Ly was facing was possession of an unlicensed or unregistered firearm. [ 86 ] It is argued that because the Accused was in a state of medical distress and was inquiring about medication when he was asked the question, this constituted an oppressive situation rendering the statement involuntary.

[87] I do not agree. On the evidence, the Accused was not in as dire medical distress as he had been earlier. He was, however,holding his stomach and asking for his pills. Most of his conversation with Corporal Rajah centred around which medication he needed.Indeed, on the evidence, Corporal Rajah was trying to help Mr. Ly to get his medicine and was not acting in an oppressive manner. Nothreats or promises of any sort were made by Corporal Rajah or any of the other officers. There was no hint that Corporal Rajah withheldthe medication or, in any way, used it as an inducement.

Nor was there any direct questioning by Corporal Rajah about the gun. In noway can he be seen to be taking advantage of Mr. Ly’s physical discomfort to press him to answer questions. Indeed, it was Mr. Ly whoraised the subject, indicating that he was stressed about the gun. Clearly that statement was voluntary. It was only after Mr.

Ly raised thesubject that Corporal Rajah asked if it was registered. [88] Nothing in the evidence reveals any police trickery, let alone something that would shock the community. [89] I do not see this as an oppressive situation of the type commented upon by the Supreme Court in R v Oickle, 2000 SCC 38,cited by the Defence, and I conclude that the statement was voluntary and not obtained in breach of Mr. Ly’s Charter rights. [90] However, since I have found breaches of Mr. Ly’s s. 10(

b) rights, I am required to consider whether any of the impugnedevidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter. A temporal link is, ofcourse, a relevant factor. Aside from the fact that all of the events occurred as a part of a single transaction, there is no direct temporallink between the Charter breach and the evidence obtained although the statement to Corporal Rajah was obtained after the Charterbreaches. Nor is there a direct causal link between the breaches and the evidence obtained. [91] However, that is not the end of the analysis.

I will apply the exclusionary test set out by the Supreme Court in R v Grant2009 SCC 32 , [2009] 2 S.C.R. 353. The headnote of that decision provides a succinct

summary of this test: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2) the impact ofthe breach on the Charter-protected interests of the accused, and (3) society's interest in the adjudication of the case on its merits. At thefirst stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.

Themore severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselvesfrom that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence tothe rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interestsprotected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidencewould bring the administration of justice into disrepute.

At the third stage, a court asks whether the truth-seeking function of the criminaltrial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence andits importance to the Crown's case should be considered at this stage. The weighing process and the balancing of these concerns is amatter for the trial judge in each case. [92] In respect to the first part of this test, I must consider the seriousness of the breach. I consider the breaches of s. 10(

b) to bereasonably serious. Mr. Ly was not afforded his right to counsel immediately on two separate occasions and, in each case, the total delaywas for a period of over two hours. [93] Not all of the first delay can be laid at the feet of the police because some is explainable by the physical necessity of takingthe Accused to Police Headquarters and searching him, and some is explainable by Mr. Ly’s ill health. I find, as well, that the delay afterthe earlier arrest was not a deliberate attempt to deprive Mr. Ly of his right to counsel. It seems to have been more a result of sloppypolicing than anything else.

I do not find this first delay to be egregious. [94] On the second occasion, again, transporting the Accused to Police Headquarters and searching him would have caused someunavoidable delay. However, there was delay after that which was deliberate. Detective Van den Berg was specifically told to ‘hold off’from giving Mr. Ly telephone access. As I have said above, I find that the delay was not justified by officer safety concerns. Because itwas deliberate, this second delay is more serious. There is also the cumulative effect that there were two breaches of Mr.

Ly’s s. 10(b)rights. [95] This first factor, therefore, weighs in favour of exclusion of evidence. [96] In considering the second branch of the test, as I have already said, there is no causal connection between the evidenceobtained and the breaches. There is neither a causal nor a temporal connection between the evidence obtained in execution of the searchwarrant. All of this evidence had been obtained before the question asked by Corporal Rajah.

The search warrant has not been attackedand I find was valid. [97] The only connection between the gun statements and the Charter breaches is temporal – in that the statements were madeafter the Charter breaches occurred. [98] The breaches did not, therefore, have a significant impact on Mr.

Ly’s privacy interests, except in respect, to the statements hemade about the gun. [99] This factor weighs in favour of inclusion of the evidence, with the exception of the statements made. [100] On the third branch of the test, I must consider whether the truth-seeking function of the criminal trial process would be betterserved by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown'scase should be considered at this stage. [101] The evidence obtained when the search warrant was executed was obtained independently of any breach of Mr.

Ly’s Charterrights and incidental to it. The evidence so obtained, namely the handgun and the related magazines and bullets, and the marijuana andthe accoutrements of the grow operation are real evidence and highly reliable. They are vital to the Crown’s case. Society certainly hasan interest in the prosecution of a case such as this and the Crown’s case could not proceed without it.

[ 102 ] The evidence respecting the statements he made about the gun is an admission which may assist in resolving the issue of possession of the firearm. [ 103 ] On balance, I have concluded that society’s interest in the adjudication of the case outweighs the breach of the Accused’s Charter rights in respect to the physical evidence of the handgun and the marijuana grow operation. [ 104 ] However, I come to the opposite conclusion in respect to Mr. Ly’s statement about being stressed out “because of the gun” and his admission that he had no license for the firearm.

I exclude these statements. [ 105 ] Otherwise, I find the evidence tendered by the Crown to be admissible and admit it to the trial proper. Heard on the 1 st through the 4 th days of February, 2016 Oral decision delivered February 22, 2016 Dated at the City of Edmonton, Alberta, this 24 th day of February, 2016. D.C. Read J.C.Q.B.A. Appearances: Donald MacCannell Public Prosecutions Service of Canada for the Respondent Michael Marchen Hladun & Company for the Applicant