R v Lei, 2016 ABQB 245

Court of Queen ’ s Bench of Alberta Citation: R v Lei, 2016 ABQB 245 Date: 20160509 Docket: 131491987Q1 Registry: Calgary Between: Her Majesty the Queen Respondent/Applicant - and - Io San Lei and Ke Juan Yi Applicants/Respondent _______________________________________________________ Voir Dire Decision s of the Honourable Madam Justice B.E. Romaine _______________________________________________________ I. Introduction

[1] Io San Lei and Ke Juan Yi are charged with the unlawful production of marijuana. They challenge the search of a residenceon the basis that the warrant was obtained and executed contrary to

section 8 of the Charter. [2] The Accused submit that aspects of the Information to Obtain the warrant were false, deficient or misleading. For reasonsthat follow, the search warrant was not invalidated by non-disclosure or false or misleading disclosure, and therefore, the search of thepremises did not infringe the Charter rights of the Accused. [3] The Crown wishes to enter a statement given by Mr. Lei as evidence in the trial and the second voir dire relates to thevoluntariness of the statement. I find that Mr.

Lei’s statement was voluntary and can be admitted as evidence at trial, except for thedeletion of a small portion. II. Voir Dire on the Search Warrant A. Applicable Law [4] The ultimate issue to be determined on the application to set aside a search warrant is whether there is a basis upon whichthe authorizing judge could grant the warrant. [5] Warrant review begins from a premise of presumed validity: R v Wilson, 2011 BCCA 252 at para 63; R v Campbell, 2010ONCA 588 at para 45, aff’d 2011 SCC 32. Therefore, the onus of demonstrating invalidity by reason of

section 8 of the CanadianCharter of Rights and Freedoms falls on the party who asserts it, the Accused in this case: R v Dionisi, 2012 ABCA 20 at para 20. [6] As noted in Dionisi the burden is a balance of probabilities; the Accused must establish that it is likely that the searchwarrant would not have issued based on the content of the Information to Obtain (“ITO”). [7] The assessment of the affiant of the ITO’s evidence is to be made from the perspective of the authorizing justice of thepeace.

I am not to substitute my view for his: R v Garofoli (SCC), [1990] 2 S.C.R. 1421 at p 1452; R v Morelli, 2010SCC 8 at para 40. The test is whether there was reliable evidence that might reasonably be believed on the basis of which theauthorization could have issued: R v Araujo, 2000 SCC 65 at para 54; Morelli, at para 40.

In applying this test, I must take into accountthat the authorizing justice of the peace may draw reasonable inferences from the evidence in the ITO: R v Vu, 2013 SCC 60 at para 16. [8] This involves assessing the evidence as a whole in a practical, non-technical and common sense basis: Wilson at para 52.Warrant review requires a contextual analysis: R v Sadikov, 2014 ONCA 72 at para 87. [9] The standard of proof for issuing the search warrant under review is “reasonable probability” or “credibly-basedprobability”: Hunter v Southam Inc, (SCC), [1984] 2 S.C.R. 145 at para 167; R v Law, 2002 BCCA 394 at para 7.

Thisstandard of proof does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt: Sadikov, at para 81.The standard requires that the quantum of evidence must be adequate to move from suspicion to a reasonable probability: Part of the assessment is whether there are adequate objective indicators contained in the “Information to Obtain” affidavit to concludethat the information offered is credible enough to be relied upon to support conclusions about what is reasonably probable: R v Floyd,2012 ONCJ 417 at para 8. [10] I must determine whether the evidence before the authorizing justice of the peace was sufficient to satisfy the preconditions toa valid warrant set out under s 11 of the Controlled Drugs and Substances Act.

The authorizing justice of the peace must be satisfied bythe ITO that there are reasonable grounds to believe that: i. a controlled substance or precursor in respect of which the Act has been contravened; ii. anything in which a controlled substance is contained or concealed; iii. offence-related property; or iv. anything that will afford evidence in respect of a CDSA offence or a related proceeds crime; is in a place described by the warrant. [11] This includes an assessment as to whether the evidence relied upon by the authorizing justice of the peace was inaccurate,misleading or incomplete, and whether the affiant and other police fulfilled their duty to make full, fair and frank disclosure of allmaterial facts in the ITO presented to the authorizing justice of the peace: R v Nguyen, 2011 ONCA 465 at para 48.

B. Analysis [12] Paciocco, J at para 10 – 12 of Floyd refers to two inquiries that should be addressed before a “reasonable and probablegrounds” search warrant can issue: 1) Did the affiant honestly believe that he had reasonable grounds to believe that an offence was occurring and that what was soughtin evidence would be found at the place to be searched? [13] This is the subjective component of the reasonable and probable grounds test.

The affiant’s reasonable belief in the existenceof the requisite statutory grounds at the time the ITO was sworn is all that is necessary under this inquiry, even if further investigationestablishes that the grounds relied upon may prove to be false: R v Pires; R v Lising, 2005 SCC 66 , [2005] 3 SCR 343 at para41.

[ 14 ] I have no reason to doubt that the affiant Constable Lafleur and Constable Aceti, who also provided an opinion in the ITO, meet the subjective belief component. Nothing presented during the voir dire suggests otherwise. 2) The second component, the “objective” component, requires that the affiant’s belief be supported by enough information to enable a reasonable person to come to the same conclusion. [ 15 ] With respect to the second “objective component”, the ITO includes the following information:

a) the affiant received a Digital Recording Ammeter (“DRA”) from Enmax that indicated electrical consumption readings consistent with a marijuana grow-operation;

b) at first glance, based on his training and experience, the affiant believed that the DRA reading was consistent with grow-op cycles normally used to grow marijuana;

c) the affiant attended at the area of the property in question and observed a build-up of flyers at the top of the stairs and in the mailbox, but did not see any flyers at the neighbouring houses. The affiant commented that this can be consistent with crop sitters who attend the residence regularly, but for short periods of time, only to tend the grow-op;

d) while on the public sidewalk between the property in question and the neighbour’s house, the affiant detected a “passing very faint odour,” of growing marijuana, but was unable to ascertain where the odour was emanating from;

e) he checked with Health Canada, which confirmed there was no permit to grow marijuana at the subject property;

f) he determined that the property belonged to a Mr. Li, who he learned had been connected to or involved with three investigations involving grow-ops or transportation of marijuana plants or buds. He reported in the ITO that Mr. Li was not charged with respect to one incident and was charged with respect to the other two, but that in both cases the charges were withdrawn or stayed. He reported that Mr. Li had no criminal record; and

g) he attended the property again, was unable to detect the odour of growing marijuana, but observed that the whirly-bird on the roof was spinning extremely fast compared to whirly-birds on neighbouring houses which were barely spinning. He commented that this was an anomaly, and in his experience, hot air is vented from marijuana grow-ops by a variety of methods, including through whirly-birds. [ 16 ] The ITO then discloses that the affiant asked another officer, Constable Aceti, to review the DRA graph and give his opinion. That opinion is set out in the ITO.

Constable Aceti’s opinion is that the DRA graph in regards to power consumption at the subject property is consistent with the growth cycles commonly used to grow marijuana indoors. [ 17 ] The Accused make a number of submissions relating to the information in the ITO: 1) They submit that the ITO fails to meet the requirement that the affiant must provide the issuing justice with full, frank and fair disclosure of all facts material to the issues relevant to the application, including facts that may go against the issuance of the order sought. [ 18 ] This principle is taken from para 46 of the Supreme Court decision in Araujo .

It is noteworthy that LaBel, J also states that an affidavit should not only be full and frank, but also clear and concise. [ 19 ] In Morelli at para 58 , the Supreme Court again refers to the obligation to present all material facts, favourable or not. Fish, J noted that: Conciseness, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure.

This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed. (emphasis added) [ 20 ] Thus, the question is whether in this case, material facts or facts that would have changed a conclusion if they had been disclosed were not disclosed. [ 21 ] As noted in Pires , Lising , there is a relatively narrow basis for exclusion of evidence obtained through a search warrant.

Charron, J commented at para 30 that: Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context.

In the end analysis, the admissibility of the [in that case] wiretap evidence will not be impacted under s.8 if there remains a sufficient basis for issuance of the authorization. [ 22 ] The Accused submit that Constable Lafleur failed to provide, and should have provided, the following facts in the ITO: - that a DRA graph with the characteristics of the graph disclosed in this case may be caused by non-illegal activity, like growing orchids or hydroponic vegetables; and - that a whirly-bird may spin faster than those in neighbouring houses because of temperature differences in the houses. [ 23 ] Constable Lafleur explained that the reason he did not disclose these possibilities is that he believed that the graph and the whirly-bird observations were caused by the presence of a grow-op, that he doesn’t deal in “what-ifs”.

While the DRA graph may have been open to another

interpretation at the beginning of the investigation, Constable Lafleur testified that, given the rest of his investigation, he believed that the graph and the evidence of the whirly-bird indicated illegal activity.

[ 24 ] I agree that the possibility that the graph could indicate non-illegal activity, given Constable Lafleur’s further investigations, including the build-up of flyers, the odour of marijuana, the link between the registered home-owner and previous investigations relating to grow-ops and possession of marijuana, was not material information that should have been conveyed to the authorizing justice of the peace, nor would it have likely changed the conclusion reached by him had it been disclosed.

Nor was the possibility that a rapidly spinning whirly-bird compared to neighbouring houses could be caused by differing heat levels in the houses, in the context of the other factors that had identified in the investigation, material information that resulted in a breach of the affiant’s duty to provide full, frank and fair disclosure of the material facts. As Constable Lafleur noted, he put in the affidavit what he believed to be the case.

If as a result of his investigations, he discarded other possibilities, he did not include them. [ 25 ] As noted in R v Ebanks , 2009 ONCA 851 at para 43 : The affiant must exercise some judgment in deciding what should and should not be included in a good and effective affidavit. This must admit of some discretion on the affiant’s part. [ 26 ] The Accused also submit that Constable Lafleur ought to have disclosed that he did not smell growing marijuana when he moved closer to the subject property during his first reconnaissance at the house.

They seem to suggest that Constable Lafleur should have listed all the locations he visited in the area around the house where he did not smell growing marijuana. [ 27 ] The Constable did indicate that he did not smell marijuana at the time of his second visit. Cross-examination elicited the information that on his first visit, he moved to a location closer to the house than the front sidewalk, but did not smell marijuana there.

I accept that, for the purpose of this review, it may have been relevant that the officer did not smell growing marijuana at other locations during his first visit, including closer to the house, although it would certainly be possible to infer that if he had smelled marijuana elsewhere, he would have mentioned it. At the request of the Accused, the ITO will be amplified by this information. [ 28 ] The Accused submit that Constable Lafleur should have expanded on the lack of smell during the second visit when he observed the whirly-bird. This arises from counsel for Mr.

Lei suggesting to Constable Lafleur during cross-examination that he would have expected an odour from the whirly-bird. Constable Lafleur explained that this was not necessarily so, as it would depend on whether the owner of the grow-op had installed filters to mask the smell, or on the direction of the wind. I accept this explanation and agree that a further explanation in the ITO was not necessary, particularly since Constable Lafleur had fairly pointed out that he detected no smell at that point. 2) The Accused submit that portions of the ITO were misleading.

They submit that inserting an opinion from another officer in the ITO was designed to give the impression that the opinion was coming from an independent expert. [ 29 ] Both officers denied this. They explained that the purpose of using a second officer was to ensure that the DRA was reviewed by an officer in the unit who was not the investigating officer, to avoid the possibility of a narrow view by an officer who was invested in the matter.

I find this a credible explanation, and at any rate, there is nothing in the text of the opinion to support the allegation that the officers were attempting to mislead the issuing justice of the peace. Constable Aceti’s expertise, and his current position are accurately set out. There was some cross-examination with respect to whether Constable Aceti was an investigating officer, but I am satisfied that, while he had a role during the investigation, he was not the primary investigating officer. [ 30 ] The Accused also submit that paragraph 21 c. of the opinion is misleading.

This paragraph states that … “the average electrical consumption for a household in … Calgary … is approximately eight amps at any given time.” [ 31 ] The Accused submit that this is meaningless, given the way it is expressed. Constable Aceti conceded very candidly that it would have been more grammatically correct to say “average of 8 amps” or “average consumption is 8 amps”. Nevertheless, I cannot accept that this awkward wording confused or misled the issuing justice of the peace. [ 32 ] The Accused also submit that the remainder of the paragraph is misleading.

It reads: The electrical consumption may increase minimally for limited durations, … however, not to the extent of the average amperage used in this case. [ 33 ] While not arguing that this is incorrect, the Accused submit that, given that the figure of 25 amps is used in a different context in paragraph 21 a., the issuing justice of the peace may have been confused into thinking the average amperage portrayed in the DRA was 25 amps, while it is approximately 15 amps from a visual review of the graph. [ 34 ] The issuing justice of the peace had the DRA graph in hand when reading para 21.

As noted in Dionisi , (at para 23 ) “the law does not assume that the trial judge is smarter than the authorizing judge”. I cannot find that any confusion would arise from these paragraphs. [ 35 ] The Accused also submit that it is relevant that the officers obtained the 8 amp information from Enmax, but are not aware of how Enmax came to that average.

There was no evidence that the information is wrong, and it would be a reasonable inference that the police would have obtained it from Enmax, which has the relevant records. [ 36 ] Although not referring to this in argument, the Accused in their brief appear to fault the affiant for not disclosing that Constable Aceti actually drafted the paragraphs setting out his opinion.

I cannot accept that this disclosure would have made any difference to the issuing justice of the peace. 3) The third area of concern cited by the Accused is the issue of the reference in the ITO to Constable Lafleur’s observation of a build-up of flyers. Constable Lafleur made it clear during cross-examination that he was referring to a build-up, and not a single day’s delivery.

[ 37 ] Crown and the Accused agreed to submit an extract of the evidence of a third officer, Corporal Fralick, from the preliminary inquiry as evidence in the voir dire . In this extract, Corporal Fralick testified that he had volunteered to become the exhibit handler when the warrant was to be executed on November 15, 2013. At about 7:14 a.m. on that day, prior to going to his office, he went to look at the subject property. He knew that Constable Lafleur had observed a build-up of flyers at the house the day before. Corporal Fralick testified that the flyers he had been told about previously had been removed.

He didn’t recall notifying Constable Lafleur, indicating he knew Constable Lafleur was heading to the courthouse or was already there, and that he didn’t know if the warrant had been signed yet. [ 38 ] Corporal Fralick didn’t know when he next spoke to Constable Lafleur, but recalled seeing him at the house after the warrant was executed. [ 39 ] Constable Lafleur’s evidence with respect to when the warrant was signed was that he had finished drafting it at 8:10 p.m. on November 14, 2013 and sent it for internal review.

He came into the office the next morning about 7:00 a.m., and about 20 minutes later, when he got clearance to obtain the warrant he left for the courthouse. He had no record of when he swore the ITO, or when the warrant was actually granted, but received notification that it had been granted at 10:15 a.m.

He did not check with Corporal Fralick before swearing the ITO. [ 40 ] Corporal Fralick also testified at the preliminary inquiry that he went back to the house at 1:15 p.m. and saw that one of the vehicles he had noticed earlier was no longer parked in the front of the house, and that there were tire tracks from the garage to the alley. [ 41 ] While it is not clear from the excerpt when the following observations were made, at some point he noted that garbage bins had been dragged to the side of the area, and he could see an orange light in the basement of the house.

Corporal Fralick agreed on cross examination that he should have told Constable Lafleur of his observations. [ 42 ] The Accused submit that the ITO was defective in that Corporal Fralick should have told Constable Lafleur of his observations or Constable Lafleur should have checked with him before swearing the ITO.

They submit that the ITO should be amplified for the purpose of this review to include Corporal Fralick’s observations, on the basis that they are inconsistent with the ITO reference to the built-up flyers observed the day before. [ 43 ] During argument, I suggested that it was the affiant’s belief at the time the ITO was sworn that was important, and counsel for the Accused argued that an affiant of an ITO should be considered to be the police as a whole. [ 44 ] This led to a great deal of argument about the duty of police and where this theory was supported by the cases. [ 45 ] I am satisfied that it is the affiant’s belief that must be tested at the time of the subjective component of the reasonable and probable grounds component.

That does not mean that the police investigation team does not have a duty to provide full, fair and frank disclosure of all material facts to the affiant before an ITO is prepared for a warrant. [ 46 ] However, this is not a situation where a member of the investigating team withheld information from the affiant before he prepared the ITO, although circumstances may have changed in the hour or two before the ITO was actually sworn. However, the change of circumstances did not make the observation of a build-up of flyers inaccurate.

Constable Lafleur’s comment was that such a build-up was consistent “with crop sitters who attend the residence regularly, but for short periods of time”. If Corporal Fralick’s observations had been added, they would have indicated that the build-up of flyers had been removed the next day, there was evidence of some traffic at the house, garbage bins had been moved and there was an orange light in the basement.

These observations are as consistent with part-time crop sitters as they are with full-time residence. [ 47 ] If this information had been added to the ITO, I am not satisfied that it would have made any difference to the outcome. [ 48 ] While in a perfect world, it may have been better for this information to have been added to the ITO, there is no evidence of bad faith or intention to mislead.

Perfection is not the standard. [ 49 ] In Pires ; Lising at para 41 , Charron, J noted: ... cross-examination that can do no more than show that some of the information relied upon by the affiant is false [which was not the case here at any rate] is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization.

Upon further investigation, the grounds relied upon in support of the authorization may prove to be false.

That fact does not retroactively invalidate what was an otherwise valid authorization. 4) The Accused submit that what they characterize as a material change of circumstances with respect to Corporal Fralick’s observations should have prevented the police from executing the warrant until they informed the issuing justice of the peace of the change. [ 50 ] I accept that, despite the words of Lising , a material change in the circumstances relied upon to obtain a warrant should give rise to a duty on police to consider whether to proceed with execution of a warrant.

However, as previously indicated, Corporal Fralick’s observations did not constitute a material change in the circumstances. 5) The Accused submit that the references in the ITO to Mr. Li are not probative and should be given little weight . [ 51 ] As the case law frequently points out, this is not a hearing de novo. This evidence is not inaccurate, misleading or incomplete.

The issuing justice of the peace would be able to weigh its probative value, or lack of, in making his decision. [ 52 ] I note that similar evidence was included in an ITO in Dionisi , and the only issue raised by the reviewing justice was that, in that case, the ITO failed to specify that the appellant was not charged in relation to the investigation. The Court of Appeal did not address

the issue. The information in this ITO makes Mr. Li’s status in relation to the three investigations clear. 6) The Accused appear to be submitting that the DRA graph that was attached to the ITO may not be related to the property in question. [ 53 ] Constables Lafleur and Aceti testified about receiving the graph attached to a cover sheet from Enmax. The cover sheet refers to the address of the property, while the graph itself does not.

I am satisfied from their evidence that Constable Lafleur received the graph with the attached cover sheet from Enmax, that he handed the two pieces to Constable Aceti, that Constable Aceti handed back the appropriate graph, endorsed by him, to Constable Lafleur and that it was attached to the ITO as endorsed. [ 54 ] Counsel for Mr. Lei asked Constable Aceti if the times set out at the beginning and end of the graph were the times the DRA had been attached and removed, and Constable Aceti agreed that they were.

On argument, the Accused pointed out that the “install date” and “disconnect date” information on the cover sheet to the graph was different by a few minutes in each case from the times set out on the bottom line of the graph, submitting that this indicated the possibility that the graph did not come from the subject property. This theory of the Accused was not put to the constables during cross-examination, nor did the Accused seek to examine an Enmax employee on this possible discrepancy.

This unsubstantiated theory does not raise a reasonable doubt on whether the graph relates to the subject property. 7) Finally, the Accused fault the ITO by reason of the fact that all of Constable Lafleur’s investigations took place in one day. They submit that he should have revisited the property over several days to test his observations about flyers and the smell of growing marijuana. [ 55 ] The ITO sets out clearly that all of the officer’s investigations occurred on the same day.

It was up to the issuing justice of the peace to consider whether the investigation was too brief, and it is not unreasonable that he did not refuse the warrant on that basis. C. Conclusion [ 56 ] The Accused in this case have tried to attack the validity of the warrant by deconstructing and attacking individual factors set out in the ITO. This is not how the review is to be conducted. As set out in R v Lee at para 15: The proof sufficient to meet the standard of credibly based probability is whether the totality of the relevant circumstances support the inference.

Here the appellant invites us to examine individual circumstances in isolation, and suggests other inferences are possible.

We are satisfied that a collective assessment of the circumstances supports the finding of the reviewing judge that there was sufficient evidence that the authorizing judge could property have granted the search warrant in this case. [ 57 ] Similarly in this case, I am satisfied that a collective circumstances and factors in this case, reviewed in a practical, non- technical and common sense way, as amplified by a reference to the fact that Constable Lafleur did not smell growing marijuana closer to the house on his first visit, supports the finding that there was sufficient basis upon which the authorizing justice of the peace could grant the search warrant. [ 58 ] Even if I were to amplify the record to include a reference that the DRA graph may disclose non-illegal activity, that the whirly-bird observations may be caused by other factors, and that the next day the flyers had been removed and there were signs of activity at the house, I would be satisfied that the amplified ITO would include sufficient evidence such that there was a basis upon which the issuing justice could grant the warrant. 2) Section 24(2) Analysis [ 59 ] In the event I am wrong in my decision on the validity of the warrant, I will address whether the Accused have satisfied the Court on the balance of probabilities that the remedy they seek, exclusion from the trial of the evidence obtained using the warrant, is required by section 24(2) of the Charter in order to protect the repute of the administration of justice. [ 60 ] The principles set out in R v Grant , 2009 SCC 32 require that I consider whether: 1) the breach is serious enough; and 2) the impact on the Charter protected interests of the accused is significant enough to; 3) outweigh society’s interest in the adjudication of the case on the merits. [ 61 ] The relevant question is whether a reasonable person, fully informed of all the circumstances and the values underlying the Charter , would conclude that admission of the evidence would bring the administration of justice into disrepute.

The focus is on the damage that condoning the Charter violation could do to the long-term public interest in maintaining the integrity and public confidence in the justice system: Floyd at para 91 . [ 62 ] First, I would not view the breaches, if there had been any, as serious. There was no evidence of intent to mislead, intentional failure to include material facts or deliberate police misconduct. If any breach occurred, it was due to an error of judgment. [ 63 ] Second, it cannot be denied that the impact on the Accused’s right to privacy in a home is significant and should not be underestimated.

For the purpose of this voir dire , I assume that both Accused had a residentiary interest in the property. They had a high expectation of privacy in their home. Thus, the impact of a breach of their Charter protected interest would be considerable. [ 64 ] It is clear that the evidence sought to be excluded is crucial to the Crown’s case, and given its nature, it is reliable. Therefore, exclusion would likely defeat the prosecution and undermine society’s interest in adjudicating the case on its merits.

[ 65 ] As noted by the Supreme Court, the seriousness of the offence is a factor that cuts both ways, supporting both admission and exclusion: Floyd at para 97 . [ 66 ] However, in this case, the nature of the Charter breaches, if they had occurred, do not outweigh the public interest in ensuring that this serious case is tried on its merits. These breaches, if they had been established, would not send a message that serious Charter breaches have been condoned. [ 67 ] Having considered these factors, I would not grant the requested remedy and would not exclude the evidence. III.

Voir Dire on the voluntariness of Mr. Lei’s Statement A. Applicable Facts [ 68 ] The videotaped interview of Mr. Lei by Constable Lafleur was played during the voir dire to determine the voluntariness of the statement. [ 69 ] Mr. Lei was detained at #38 Rundlelawn Close N.E. in Calgary, Alberta in the early evening of November 15, 2013 and taken to a police station to be interviewed. The interview commenced at 7:57 p.m. and was over at 10:21 p.m. Mr. Lei was formally arrested at about 7:59 p.m. and charged with unlawful production and with possession of marijuana for the purpose of trafficking.

The possession charge was later stayed. [ 70 ] He was advised of the right to retain a lawyer without delay and of his right to call a lawyer, and he exercised that right at about 8:15 p.m. The interview then continued. Mr. Lei confirmed that he had spoken with a Legal Aid lawyer. [ 71 ] He was asked if he wished to say anything and he declined. He was advised by Constable Lafleur that he wasn’t obliged to say anything unless he wished to do so, but that whatever he said may be given in evidence. [ 72 ] Mr.

Lei was advised that the police had found a marijuana grow operation in the house where he was detained, and some drug paraphernalia. He was advised that marijuana had been found in the bedroom where his driver’s license was found. Keys to a vehicle in the garage were also found in the bedroom. Mr. Lei did not say anything about this

summary of the investigation. [ 73 ] Constable Lafleur then told Mr. Lei that “(l)ike I said, this is voluntary. You want to leave, you can leave ... maybe it’s a good idea for you to listen ...”. Mr. Lei said he was willing to listen, and admitted to being scared. The interview continued, and Mr. Lei continued to say that he was “not going to say nothing”, that he was not going to say if he rented the house, whether he recognized the smell of marijuana or if the car in the garage or another car he had arrived in was his. [ 74 ] Constable Lafleur told Mr. Lei that the house belonged to a Mr.

Li, and asked whether he knew Mr. Li. [ 75 ] Mr. Lei said he was not going to say that. He continued to refuse to say anything in follow-up questions. [ 76 ] Constable Lafleur commented that he didn’t see much point in going on because it was going to be a one-sided conversation, but asked if he could do anything to help ease Mr. Lei’s mind. Mr. Lei asked when he could get his personal stuff and “get out of here”, saying he wanted to talk to some outside lawyers.

He declined an offer to use the phone again and said “I just want to get out of here sir”. [ 77 ] Constable Lafleur took a break, and conferred with a senior officer who was electronically monitoring the interview. He returned in about eleven minutes, and said to Mr. Lei: ... so the plan for you right now is, once we’re done here, I’m going to take you downtown and book you there ... I’m not going to be opposing your release, you’ll be able to likely get out tonight, tomorrow, whenever they let you go downtown, there’ll be a hearing right? So far that’s my plan. Mr.

Lei: Okay Constable Lafleur: ... a couple things I’m going to need for you ... I’m going to ask you some questions just to, cause I have to do the paperwork, so I need for example ... I’ll need you to tell me your full name, your date of birth and then I’ll ask you some more questions as we go through. [ 78 ] Mr. Lei gave his full name and date of birth.

Corporal Lafleur then asked for his address, commenting: ... the reason I’m asking is ... for you to be released ... one of the conditions is that the police are going to check on you ... if you tell me... well I don’t want to tell you where I live ... instead of asking, I’m just going to throw numbers here that are ... don’t make sense right? Mr. Lei: Ya Constable Lafleur: And so ... if you tell me where you live ... I can say well I know where he’s going to live, where he’s going to be ... so he’s not a flight risk. So I’m going to ask for this much. Mr.

Lei: Okay Constable Lafleur: But if you tell me well I’m not telling you where I live, then I’m thinking okay well.., for all I know, I don’t know where you’re going to be.., you could be hopping on a plane tomorrow to go to Winnipeg. So, that’s the difference. So that’s why, where are you going to be when you’re released is the question I’m asking you?

[ 79 ] Mr. Lei said he would most likely be at his parents’ place, but he wasn’t sure of the address. He thought it was somewhere on Silverado Skies Drives, but he didn’t know the house number. Constable Lafleur then asked who Mr. Lei’s parents were, and Mr. Lei responded that his father was Sau Ting Li. Constable Lafleur asked for a telephone number, but Mr. Lei said he didn’t have one, as it was saved on his phone. [ 80 ] Eventually, Constable Lafleur suggested that Mr. Lei look up his father’s full address and telephone number in the phone book. He also commented that he probably had Mr.

Lei’s father’s phone number himself, as he knew he was the owner of the house where Mr. Lei had been detained. [ 81 ] Mr. Lei was provided at his request with one set of white pages that turned out to be too old to include his father’s address and telephone number. He asked for a more recent set of white pages, and, after about 50 minutes, Constable Lafleur came back in the room to say he had searched the white pages online for Mr. Lei’s father’s address and phone number but couldn’t find them. He said he had found a different address for Mr. Lei’s father, but Mr.

Lei said that his father didn’t live there anymore. [ 82 ] Mr. Lei was allowed to use the phone again to try a number that Constable Lafleur had suggested, and he came back with a telephone number and a house number for his father on Silverado Skies Drive. [ 83 ] Constable Lafleur asked Mr. Lei to confirm that he would be at that address if he checked, because: ... one of the conditions ... that I’m going to be asking ... because you’re saying that you don’t live where we arrested you ... my condition is that you’re not going to be able to go back there period. [ 84 ] Mr., Lei then made a statement.

Constable Lafleur asked a follow-up question and Mr. Lei refused to answer it. Constable Lafleur replied: ...so there’s no proof for me to know that you live there ... Legally you have no standing to be there ... [ 85 ] The interview continued for a time, but counsel for Mr. Lei suggested that it was unnecessary to play the videotape to the end. B. Applicable Law [ 86 ] As set out in R v Oickle , 2008 SCC 38 , the confessions rule is concerned with voluntariness broadly defined.

It is important to keep in mind its twin goals of protecting the rights of the Accused without unduly limiting society’s need to investigate and solve crimes (paras 32-33). [ 87 ] The application of the rule will by necessity be contextual. I must consider all relevant factors when reviewing a confession (para 47), and ask if the circumstances surrounding the confession give rise to a reasonable doubt as to the confession’s voluntariness. The relevant factors include threats or promises, oppression, the operating mind requirement and police trickery.

With respect to inducements, Iacobucci J. commented at para 57 of Oickle that, in

summary: ... courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. [ 88 ] He quoted with approval from R v Rennie (1981), 74 Cr. App.

R. 207 at p 212 : Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible.

This is not the law ... [ 89 ] The Court then noted that the most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless if it comes in the form of a threat or promise. [ 90 ] The burden of providing a confession is voluntary is on the Crown, which must prove this beyond a reasonable doubt. A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. If police offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it: Oickle at para 68 .

If a suspect is treated properly, it will take a stronger inducement to render the confession involuntary: para 71. [ 91 ] In this case, Mr. Lei was fully apprised of his rights. He was not subjected to harsh, aggressive or overbearing interrogation; he was not deprived of sleep, food or drink. The only issue is whether he was offered an improper inducement or given an implied threat that undermined the reliability of his statements. [ 92 ] The first issue raised by Mr. Lei is Constable Lafleur’s comment early in the interrogation that it was voluntary and that if he wanted to leave, he could leave.

Counsel for Mr. Lei submits that this was a lie, as Mr. Lie had been arrested and wasn’t free to leave the police station. Constable Lafleur testified that he meant that the interrogation could be terminated and Mr. Lei taken back to his cell. At any rate, Mr. Lei made no statement or confession in response to this statement, and it was later made clear that Mr. Lei would be taken downtown and booked after the interrogation, and that there would be a hearing into release. [ 93 ] Counsel for Mr. Lei submits that Constable Lafleur’s statement that he was not going to be opposing Mr.

Lei’s release was an improper inducement, similar to a “hope of advantage” inducement. Counsel for Mr. Lei submits that this statement was an inducement to obtain Mr. Lei’s full name, his date of birth and where he would be staying when released, all part of a plan to get him to admit that

the registered owner of the house was his father, and establish evidence of association that could be used against Mr. Lei at trial. [ 94 ] When the statements are reviewed in context, they do not support this theory. Constable Lafleur testified that he was trying to help to facilitate the release process, and explaining why an address where Mr. Lei would be living was important. Counsel for Mr. Lei suggests that the words relating to flight risk mean that Constable Lafleur was threatening Mr. Lei with more onerous conditions.

He suggested that the reference to throwing in some numbers that don’t make sense means Constable Lafleur was threatening that he was going to ask for increased cash bail. Constable Lafleur says that he was referring to address numbers. That makes sense in the context. Neither of Mr. Lei’s theories about threats of onerous bail conditions or cash bail are credible in the context of the entire conversation, and the language used does not raise a reasonable doubt about the voluntariness of the statements. [ 95 ] Constable Lafleur may well have had the objective of linking Mr.

Lei to the registered owner of the house, but he could not have anticipated that Mr. Lei would offer his father’s address as where he would be staying when released. It was not incorrect to advise Mr. Lei that he would need to advise the bail court of where he would be living upon release. [ 96 ] Constable Lafleur did not link the fact that he would not be opposing release to the question of who Mr. Lei’s parents were. Mr. Lei had been cautioned and advised that he did not have to answer questions, and had exercised that right frequently during the interview. [ 97 ] Although counsel for Mr.

Lei did not object to Mr. Lei’s statement in response to Constable Lafleur’s advice that he was going to ask for a condition of bail that Mr. Lei not “be able to go back [to the house] period”, I am concerned that Mr. Lei’s answer in response to that statement was given in response to an implied threat. Mr. Lei knew at this point that he wasn’t going to have access to his belongings for an indeterminate period of time, and the condition that Constable Lafleur was referring to would not be one that would commonly be requested or granted during a bail hearing.

Constable Lafleur referred to reasons of health and safety as to why Mr. Lei would not be able to access the house in question for a period of time, but a blanket prohibition on access to the house “period” goes beyond that, and casts a reasonable doubt on the voluntariness of Mr. Lei’s response. I therefore delete the portion of the statement starting on page 32 from lines 827 to 840 on that basis. [ 98 ] In

summary, the Crown has met its evidentiary burden as to the voluntariness of Mr. Lei’s statement, except for page 32 from lines 827 to 840. The Crown and Mr. Lei agree that certain other portions of the statement should also be deleted before it is presented in evidence before the jury. Heard on the 4 th , 5 th , 6 th , 7 th 8 th and 11 th day of April, 2016. Dated at the City of Calgary, Alberta this 5th day of May, 2016. B.E. Romaine J.C.Q.B.A. Appearances: John Oman for the Crown Patrick M. Horner for the Accused, Io San Lei Joan Blumer for the Accused, Ke Juan Yi