R. v. Bich Nguyen et al Date:, 2011 BCPC 516

Citation: R. v. Bich Nguyen et al Date: 20111102 2011 BCPC 0516 File No: 201799-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THI NGOC BICH NGUYEN, THU THI NGUYEN, NAM HOANG NGUYEN, VIETNAM TRAVEL, INC. RULING ON CHARTER VOIR DIRE (DRIVER’S LICENCE) OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: Oren Bick Counsel for Thi Ngoc Bich Nguyen : Gloria Ng

Place of Hearing: Vancouver , B.C. Date of Hearing: November 1, 2011 Date of Judgment: November 2, 2011 SUPPLEMENTARY DECISION ON DRIVER’S LICENCE ISSUE AND S. 24(2) ANALYSIS INTRODUCTION [ 1 ] On October 26, 2011, I issued a ruling on a number of issues raised by Bich Nguyen in a Charter voir dire held August 9 to 10, 2011 inclusive. One of the issues raised by Ms. Nguyen was whether there had been a s. 10(

b) Charter breach during the detention arising from the police interaction with Ms. Nguyen on Renfrew Street. For ease of reference this has been referred to as the “initial stop” even though Ms. Nguyen was not stopped by the police but pulled over on her own. [ 2 ] Ms.

Nguyen argued that post-detention identification information, namely, the demand for her driver’s licence and information obtained from Calforex using her identification constituted a breach of her Charter rights. [ 3 ] I requested further argument on this point (“the driver’s licence issue”) but with the consent of counsel issued my ruling on the other issues. It was understood that if the ruling on the driver’s licence issue had an impact on the other issues, counsel would be given an opportunity to make further submissions. Yesterday, I heard further submissions on the driver’s licence issue.

I also heard s. 24(2) submissions regarding whether evidence should be excluded. This is my ruling on those two issues. [ 4 ] I wish to note that yesterday I also heard an application from Vietnam Travel requesting that I enter a stay of proceedings against it on the basis that Vietnam Travel was dissolved on August 13, 2007. After hearing from counsel, I was satisfied that a stay of proceedings was appropriate and therefore granted Vietnam Travel’s application. THE DRIVER’S LICENCE REQUEST Brief

summary of circumstances regarding driver’s licence request [ 5 ] At the initial stop Ms. Nguyen was not provided her s. 10(

b) right to counsel. Sergeant Andrew simply told her he was “stopping” (sic) her for a proceeds of crime investigation. The Crown concedes the failure to advise her of her right to retain counsel was a breach of s. 10(

b) of the Charter . [ 6 ] Ms. Nguyen gave her driver’s licence and vehicle registration to Sergeant Andrew when he requested it. Sergeant Andrew used the driver’s licence to ascertain Ms. Nguyen’s identity and then, using that information, his colleague Corporal Kolot made inquiries at Calforex as to whether Ms. Nguyen had made a transaction earlier that day. Corporal Kolot obtained information from Calforex employees that Ms. Nguyen attended Calforex earlier in the day and exchanged about $130,000 US and that the tradnsaction was related to her sister’s currency broker business.

Corporal Kolot relayed this information to Sergeant Andrew who testified that, upon receiving this information from Corporal Kolot, his reasonable and probable grounds to arrest Ms. Nguyen for money laundering “crystallized”. The information Corporal Kolot learned from Calforex, as a result of his inquiry, played a significant role in Sergeant Andrew’s decision to arrest Ms. Nguyen approximately 20 minutes after the initial detention. [ 7 ] In addition to asking Ms. Nguyen for her licence and registration when he first spoke to her Sergeant Andrew also asked Ms. Nguyen some other questions.

Sergeant Andrew testified that he did not rely on Ms. Nguyen’s “evasive” post-detention statements as part of the grounds to arrest her. The Crown conceded that, if he had, the court should not take those statements into account as part of its objective analysis because the statements were taken in violation of Ms. Nguyen’s s. 10(

b) right to counsel. [ 8 ] The issue regarding the driver’s licence information, which arose for the first time in Ms. Nguyen’s reply argument, was whether the information received from Calforex about Ms. Nguyen fell into the same category as the “evasive” post-detention statements because it was derived from information given by Ms. Nguyen to Sergeant Andrew during that same period of time. Defence Submission [ 9 ] Ms. Nguyen submits that her driver’s licence and the information later obtained from Calforex, which was made possible by Ms. Nguyen’s identification information, was improperly obtained.

Sergeant Andrew’s demand for Ms. Nguyen’s identification was not rooted in any purpose provided for under the motor vehicle legislation. In fact, Sergeant Andrew candidly testified that he approached Ms. Nguyen at the driver’s side window for the sole purpose of investigating her in regards money laundering. Ms. Nguyen argues that

Sergeant Andrew did not rely on police statutory authority under the Motor Vehicle Act as the basis for his decision to detain her andobtain her identification. Accordingly, since his actions were not rooted in the statutory authority provided by the Motor Vehicle Act,those actions cannot be justified under that legislation. “In deciding whether the police infringed Charter rights, they are to be judged onwhat they did, not what they could have done” (cited in R. v. Whitaker 2008 BCCA 174; see also R. v. Toor 2008 BCPC 408 paragraphs55 through 57). Thus, it is Ms. Nguyen’s position that all information obtained by the police following the breach of her s. 10(

b) right tocounsel constituted a further breach of her Charter rights. Ms. Nguyen argues that she did not have the benefit of consulting withcounsel to make an informed decision regarding whether to comply. Ms. Nguyen argues that the s. 10(

b) breach, at the very least, wascompounded by the driver’s licence request. Further, relying on R. v. Harris, 2007 ONCA 574 , [2007] O.J. No. 3185, Ms.Nguyen argues that the request for her driver’s licence was a search or seizure and constitutes a breach of s. 8 of the Charter. [10] In the alternative, should the court find that Sergeant Andrew had a right to request the production of Ms. Nguyen’s driver’slicence pursuant to s. 33 of the Motor Vehicle Act, Ms.

Nguyen submits the use made of that information, in furtherance of a criminalinvestigation, as opposed to enforcing the Motor Vehicle Act, was improper and therefore in breach of her Charter rights. Should thecourt decide that production of one’s driver’s licence to an officer is required in all circumstances pursuant to s. 33 of the Motor VehicleAct, Ms.

Nguyen submits the purpose of obtaining the information and the subsequent use by police of such information are factors thatmust be considered when assessing whether or not her Charter rights were violated. [11] Should the court accept the Crown’s submission that Ms. Nguyen had no choice but to provide her driver’s licence, simplybecause she was sitting in the driver’s seat of a motor vehicle, Ms. Nguyen submits Sergeant Andrew’s use of the information from thelicence, after it was produced by Ms. Nguyen, violated her Charter rights. Ms.

Nguyen submits the legislature did not intend, whencrafting the Motor Vehicle Act, that s. 33 be relied upon by police to circumvent a citizen’s Charter rights. To interpret s. 33 as allowingofficers to gather information in furtherance of a criminal investigation against a citizen, while not affording that citizen the right tocounsel, would be erroneous. Crown Submission [12] The Crown submits that the issue raised by Ms. Nguyen is not whether Sergeant Andrew had the authority to demand herdriver’s licence, rather it is whether he made that demand in violation of her right to counsel. The Crown says he did not.

The Crownsubmits driver’s licence information does not attract the same s. 10(

b) protection, even post R. v. Suberu 2009 SCC 33, as the othertypes of statements made by Ms. Nguyen. Sergeant Andrew had a duty to hold off asking Ms. Nguyen questions in relation to hisinvestigation until she had exercised her right to counsel, but he had no duty to refrain from identifying her by requesting her driver’slicence. [13] If there were an issue with her detention, the driver’s licence issue might take on a different dimension. However, the Crownsubmits, Ms. Nguyen was lawfully detained when she handed over her driver’s licence.

The question before the court arises because ofproblems with the right to counsel, not her detention. The Crown asserts the right to counsel has nothing to do with the demand for adriver’s licence. Ms. Nguyen, as the driver of a motor vehicle, was required by s. 33 of the Motor Vehicle Act to produce her licenceupon demand. This simple, commonplace act – a driver providing her licence to a peace officer – has been held by courts to be free froms. 10(

b) protection. [14] It does not matter that Sergeant Andrew, at the time he demanded Ms. Nguyen’s licence, had no interest in a motor vehicleinvestigation. The cases that require officers to have a “motor vehicle purpose” before exercising powers under the Motor Vehicle Actare all cases involving the Act’s broad powers of detention, where courts have an interest in limiting potentially arbitrary behaviour bypeace officers. The analogy to a far less intrusive request for a driver’s licence falls short.

Indeed, there are no reported cases that saythat a peace officer requires a “motor vehicle purpose” before asking a driver for her licence, and there is one case, HMTQ v. Parmar2005 BCSC 1247, albeit decided before Suberu, that says he does not. [15] Suberu requires police to provide detainees with their s. 10(

b) rights immediately upon detention. However, the SupremeCourt of Canada in that case allowed for exceptions, such as the one already carved out in R. v. Orbanski, 2005 SCC 37, which allowspolice to demand that drivers perform sobriety tests prior to receiving their right to counsel. According to Orbanski, this is a s. 10(b)violation that is saved by s. 1. In R. v.

Grunwald, 2010 BCCA 288, the Court of Appeal stated that Orbanski remains good lawpost-Suberu, and added that the principle in Orbanski is not restricted to impaired driving investigations but “extends to motor vehiclestops generally”: see Grunwald at paras. 26-27; see also R. v. Humphrey, 2011 ONSC 3024 at paras. 108 to 114, for a trial decision onthe same point. Therefore, under Grunwald and Humphrey, it is clear that even post-Suberu, a police officer who pulls over a vehiclefor a “motor vehicle purpose” is not required to provide the driver with her s. 10(

b) Charter rights prior to demanding her driver’slicence. [16] There is no post-Suberu case that addresses the issue of a demand for a driver’s licence in a criminal investigative detentioncontext such as the one in this case. However, there is no reason for the result in an investigative detention case to be any different fromthe result in “motor vehicle purpose” cases such as Orbanski, Grunwald, and Humphrey.

Orbanski differentiates between preliminarysteps in a driving investigation which can be taken without any right to counsel and more advanced steps which must be preceded byaccess to counsel: see Orbanski at para. 28. It does not make sense to say that the same preliminary steps that police can take prior toproviding right to counsel to a detainee in an impaired driving investigation (which would include demanding a driver’s licence) cannotbe taken prior to providing right to counsel in an investigative detention case where the detainee happens to be driving a motor vehicle. In both types of cases, s.10(

b) protects the detainee from self-incrimination, but only beginning at the point where the detainee really hasa choice about what action to take. Orbanski, Suberu, and Grunwald collectively make it clear that the interests protected by s. 10(

b) donot extend to drivers who might wish to have legal advice as to whether they ought to comply with a peace officer’s demand for theirdriver’s licence. [17] In this case, right to counsel should have been provided at the outset but it would have been there to protect Ms. Nguyen’s rightsvis-a-vis the criminal investigation and not her privilege as the driver of a motor vehicle. As a holder of a British Columbia driver’s

licence, Ms. Nguyen voluntarily entered into the province’s licencing regime and was required by s. 33(1) of the Motor Vehicle Act toproduce her licence for inspection on demand of a peace officer. She was not entitled to be informed about her right to counsel prior tocomplying with that demand any more than she would be entitled to know about it if the demand had been made in connection with aspecific motor vehicle infraction. Thus, while the court should not consider the “evasive” statements made by Ms. Nguyen in violationof her s. 10(

b) rights when considering whether Sergeant Andrew had grounds to arrest her, the court can consider identificationinformation obtained as a result of the driver’s licence request, because the request for her licence, which is conceptually distinct fromher statements, was not a breach of her s. 10(

b) rights. [18] As to s. 8 of the Charter the Crown submits it does not apply in the circumstances. Harris dealt with a situation whichinvolved a passenger not a driver. Under motor vehicle legislation a driver has no expectation of privacy because he has a duty toprovide his driver’s licence to a police officer on demand.

Section 8 of the Charter is a personal right that protects a person’s privacy. The Crown argues, given s. 33 of the Motor Vehicle Act, Ms. Nguyen had no reasonable expectation of privacy in her driver’s licence. Analysis regarding driver’s licence issue [19] The Crown submits that the request for driver’s licence information does not attract the same s. 10(

b) protection even after thedecision in Suberu. The Crown bases its assertion on cases such as Orbanski, Grunwald, and Humphrey where there was a valid“motor vehicle purpose” to make the request in the first place. Even in Parmar, as I read it, the trial judge determined that the officerhad authority under the Motor Vehicle Act. Further, Preston J. specifically noted that the officer’s evidence at trial was that he asked forthe driver’s licence under the authority of s. 33 of the Motor Vehicle Act. That is not the same as the circumstances of the case beforeme.

Sergeant Andrew testified that he only approached the minivan for a proceeds of crime investigation. It is clear under the MotorVehicle Act that a person operating a motor vehicle must produce the licence and registration on the demand by a peace officer. In thiscase, however, the officer’s request was not made pursuant to that section. His testimony indicates he did not even turn his mind to s. 33as the basis for his request.

I was not provided any case law to support the proposition that the mere existence of the s. 33 authority isenough to render such a request valid even if the officer does not turn his mind to, or articulates, that s. 33 is the reason for his request. In the circumstances of this case I find that there is no basis to apply the exception carved out by such cases as Orbanski, Grunwald, andHumphrey. [20] However, even if Sergeant Andrew was not conducting an investigation under the Motor Vehicle Act, was he barred fromasking Ms. Nguyen for her identification in the course of an investigative detention?

It is clear that there is no common law duty toidentify oneself to the police: see, R. v. Moore (SCC), [1978] S.C.J. No. 82. However, where police are conductingan investigative detention, it is my view that it is permissible for an officer to ask questions of the detainee about his/her identity. Thedetainee has the right to remain silent or to answer. In this case Mr. Nguyen chose to answer and to provide her driver’s licence. [21] The next issue is whether obtaining Ms. Nguyen’s information amounted to an unreasonable search or seizure.

The case lawmakes it clear that answers to police questions may or may not give rise to a s.8 breach. In Harris Doherty J. considered whether apassenger in a vehicle could be questioned and asked for his identification in the course of an investigation of the driver for making animproper turn. On the facts of that case Doherty J. noted that an officer’s powers under the Highway Traffic Act of Ontario did notencompass authority to ask passengers in detained vehicles for identification. He went on to consider whether the request foridentification in that case constituted an unreasonable search or seizure.

He concluded that the passenger, Harris, was subject to a seizurewhen he gave the police his identification and upheld the trial judge’s finding of a breach under s. 8 of the Charter. [22] I find that the Harris case is distinguishable based on its facts. The case law makes it clear that issues relating to Charterchallenges must be decided on the particular facts of the case before the court. In this case Sergeant Andrew was conducting a lawfulinvestigative detention and was not precluded from asking Ms. Nguyen for identification.

In determining whether the conduct of thestate amounts to a search for the purposes of s. 8, the courts must consider whether the conduct invades a person’s reasonableexpectation of privacy. Clearly, it is only when a person’s reasonable expectations of privacy are diminished by an investigatorytechnique that s.8 of the Charter comes into play. As a result, not every form of examination conducted by the government willconstitute a “search” for constitutional purposes: see, R. v. Evans, (SCC), [1996] 1 S.C.R. 8. In the circumstancesbefore me I cannot conclude that asking Ms.

Nguyen for identification amounted to a search. [23] I will next consider whether taking Ms. Nguyen’s driver’s licence and registration constituted a seizure. A seizure under s. 8 isthe taking of a thing from a person without that person’s consent: see, R. v. Dyment (1988), (SCC), 45 C.C.C. (3d)244. In Harris Doherty J. noted that where the subject of questioning is under police detention and reasonably believes that she iscompelled to provide the information sought the receipt of the information by police may be a non-consensual taking. There isinsufficient evidence before me to support a conclusion that Ms.

Nguyen reasonably believed she was compelled to provide theinformation sought. In the circumstances, I find that asking for and taking Ms. Nguyen’s driver’s licence was not a seizure under s. 8. Accordingly, a s.8 breach has not been established. SECTION 24(2) ANALYSIS [24] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada set out a framework for judges to consider when addressingapplications to exclude evidence under s. 24(2) of the Charter.

The three factors to be considered are: (1) the seriousness of the Charter-infringing conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and

(3) society’s interest in the adjudication of the case on its merits. The court must consider all the circumstances and determine whether, on balance, the evidence obtained by the Charter breach would bring the administration of justice into disrepute. [ 25 ] I begin by addressing the seriousness of the Charter breach. In this case I have found that the police breached Ms. Nguyen’s s. 10(

b) rights by not telling her immediately upon her detention of her right to retain counsel. In assessing the 10(

b) breach it is appropriate to consider that the police had a discussion with Ms. Nguyen. Sergeant Andrew asked for and received her driver’s licence and registration. He also asked her some questions. With respect to the first factor, Frankel J. in R. v. Reddy , 2010 BCCA 11 , noted that the greater the level of state misconduct the greater will be the need of the courts to disassociate themselves from that conduct.

Wilful or reckless disregard of Charter rights will tend to support exclusion. [ 26 ] The Crown urges me to consider that this detention took place in 2005 long before Suberu and that until Suberu there was an open question even amongst jurists about how quickly the police had to provide a detainee with the s. 10 rights. The Crown submits that the police acted in good faith. They acted in accordance with the law as it existed at the time. [ 27 ] The defence acknowledges that Sergeant Andrew’s breach of s. 10(

b) was not so egregious as to amount to a flagrant breach. However, the importance of s. 10(

b) has been much commented upon and is well known. Sergeant Andrew ought to have realized that his actions on May 17 were not proper. [ 28 ] In the circumstances of this case, I find that the seriousness of the Charter -infringing conduct is not at the most serious end of the spectrum. Sergeant Andrew’s conduct and actions were not egregious and did not demonstrate bad faith. I find that there was one breach of s. 10(

b) which was made up of his failure to give Ms. Nguyen her s. 10(

b) rights and his failure to hold off asking questions until he had done so. Sergeant Andrew’s conduct was not excessive or abusive. On a spectrum of minor to serious I find his conduct falls in the middle ground. [ 29 ] I now turn to the impact of the breach on the Charter -protected rights of the accused. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted. In this case, there is no doubt that the impact is serious. It was not a fleeting or technical breach. The purpose of s. 10(

b) is to provide detainees with the opportunity to be informed of their rights and obligations and to obtain advice on how to exercise those rights and fulfil the obligations. The right to counsel protected under s. 10(

b) is designed to ensure that persons who are detained or arrested are treated fairly in the criminal process. [ 30 ] The third factor to consider is society’s interest in an adjudication on the merits. In assessing this factor, the court looks at the truth-seeking function of the trial process and whether it would be better served by admission of the evidence or its exclusion. Reliability of the evidence is an important factor to consider. However, the admission of reliable evidence without regard for the way it was obtained undermines the importance of Charter rights.

The seriousness of the offence remains a consideration but it has far less importance under the Grant analysis than it did before. The Grant analysis requires the court to focus on the long-term implication for the repute of the administration of justice and not on the public’s short-term desire for a conviction. [ 31 ] The final step of the s. 24(2) analysis is the balancing of the three above-noted factors to determine whether admission of evidence obtained by a Charter breach would bring the administration of justice into disrepute.

In Grant the court said that the task of the trial judge is to weigh the various indicators. There is no overarching rule that governs how the balance is to be struck. In this case, having considered the three Grant factors, I conclude that a balancing of those factors supports the admission of the evidence that was gathered following the s. 10(

b) breach rather than its exclusion. _____________________________ The Honourable Judge M.F. Giardini Provincial Court of British Columbia