R. v. Chau, 2019 BCPC 304

Citation: R. v. Chau 2019 BCPC 304 Date: 20191213 File No: 87833-3C Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. OLIVER CHAU AND ANH QUOC NGUYEN VOIR DIRE #4 RULING #2 OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: J. Le Dressay Counsel for the Defendant Chau: W. Jessop Counsel for the Defendant Nguyen: C. Muldoon Place of Hearing: Kelowna , B.C. Dates of Hearing: October 15, 16, 17, 2019 Date of Judgment: December 13, 2019 Introduction

[ 1 ] In the course of a drug investigation, the RCMP successfully applied for two search warrants in relation to two apartments on November 2, 2017. These are #311 – 883 Academy Way Kelowna, BC (the “Academy Way” apartment hereafter), and #203 – 3550 Woodsdale Road Lake Country, BC (the “Woodsdale Road” apartment hereafter). Mr. Chau and Mr. Nguyen apply to set aside both these search warrants on the basis that the Information to Obtain (“ITO” hereafter) in support of these warrants fall short of providing the requisite grounds.

In Voir Dire #1 ( 2019 BCPC 200 ), I set aside a tracking warrant that was used to investigate a phone number associated with Mr. Nguyen’s alleged drug trafficking group. Consequently, I excised certain paragraphs of the current ITO that were clearly the fruits of the execution of that tracking warrant. In the result, Crown counsel and counsel for Mr. Nguyen are in agreement that, post excision, the ITO cannot support the warrant as it relates to Academy Way. Mr. Nguyen now applies to set aside the search warrant as it relates to Woodsdale Road.

In Voir Dire #3 ( 2019 BCPC 246 ), I ruled that the excisions available to Mr. Nguyen were not available to Mr. Chau. Consequently, a review of the ITO’s as the case relates to Mr. Chau will include the paragraphs which flowed from the tracking warrant which I had set aside as against Mr. Nguyen. Even so, Mr. Chau says that the ITO’s pertaining to both apartments fall short of providing the requisite grounds and applies to set aside both search warrants.

Additional Excisions [ 2 ] Before analyzing the main issue of whether the ITO, as amplified on review, was sufficient in providing a basis for the two search warrants, both Mr. Chau and Mr. Nguyen asked this Court to make a number of additional excisions. In the alternative, they say that I ought to give the impugned paragraphs no weight. I will first deal with these arguments. Confidential Informants [ 3 ] Both applicants ask that this Court excise, or give no weight to, the information given by the 3 confidential informants for primarily two reasons.

Firstly, they say that the affiant used boiler plate language in giving the background and pedigree of the three informants. At paras. 24 – 29 of the ITO, Cpl. Fradette used the exact same wording to describe the motivation and reliability of the 3 informants involved in this case. They are as follows: 1. The information was provided voluntarily; 2. The information provided was detailed and specific; 3. Some of the information received from Confidential Informer “A” [as the case may be] in the past has been corroborated by way of police investigation; 4.

Some of the information regarding this investigation has been corroborated by other means including police investigation, surveillance observations and information from other Confidential Informers. [ 4 ] Trial judges have been cautioned against the potential mischief that boilerplate language could cause. In R. v. Araujo , 2000 SCC 65 , the Court said at para. 47: 47 A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers.

At best, the use of boiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not. Although the use of boiler-plate language will not automatically prevent a judge from issuing an authorization (there is, after all, no formal legal requirement to avoid it), I cannot stress enough that judges should deplore it. There is nothing wrong — and much right — with an affidavit that sets out the facts truthfully, fully, and plainly .

Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions. [emphasis in original] [ 5 ] In the case at bar, Cpl. Fradette agreed that the wording he used to describe the pedigree of the Informants was cut and pasted from a previous ITO. However, he also confirmed in his viva voce evidence that the content of those paragraphs were true and applied to the respective informants.

He said that the content was “tailored to each individual” but he chose generic wording so as to protect the identity of the informants. In light of his explanation, I am satisfied that those paragraphs were not misleading. Indeed, if they are true and in fact applied to the informants, I do not see the sense of the affiant retyping any particular paragraph, rather than using the “cut and paste” function.

Nor do I see any sense in the affiant going out of his way to use some other words to describe the same thing, just for the sake of the paragraphs appearing different. [ 6 ] A second attack advanced against the Confidential Informant information is that they are, for the most part, undated and unsourced. The ITO does not say how the respective informants come to know a particular piece of information (first-hand, second-hand, or through the rumour mill). The ITO also does not contain dates to which their information applied, or when the affiant received the information from the informant.

I expressed these concerns in Voir Dire #1 at para. 16 . However, one must keep in mind that my previous ruling related to the reliability of the information as it pertained to the connection between a specific phone number and Mr. Nguyen personally. When I read the informants’ information as a whole, however, I find that the level of detail provided goes some ways to allay the concerns that I had when the tracking warrant was sought. Specifically, the informants provided details about the various people involved in the alleged drug trafficking group as well as the various vehicles associated to that group.

Additionally, by the time the ITO was written to seek the two search warrants in question, much of the informants’ information had been corroborated by police investigation. In the result, I am not inclined to discount the confidential informants’ information in the manner suggested by the applicants. The Rule against Narrative objection [ 7 ] The Applicants say that there were a number of paragraphs in which Cpl. Fradette simply expressed his opinion and made conclusory statements that were not based on the evidence. As a corollary of this challenge, they say that the experience of Cpl.

Fradette as a drug investigator was not laid out in the ITO. There was no information with respect to the number of investigations he has done, the roles he has played, or the training he has taken. As such, Cpl. Fradette’s opinions should not be relied upon. For example, on a number of occasions, Cpl. Fradette opined that a drug dealer is “loading” another drug dealer with drugs based on observations made during

surveillance. These paragraphs, say the Applicants, ought to be excised from the ITO or, at the very least, be given no weight. [8] While I agree with the general proposition that bald conclusory statements do not advance an ITO any, I do not have anydifficulty with the affiant expressing in the ITO the inferences that he drew, based on the evidence that was available. Indeed, I agreewith the Crown that, in an ITO, it is a requirement that the affiant state his/her subjective belief that an offence has been committed.

Thestrength of that opinion will then rest upon the credibility and reliability of the underlying evidence. Where Cpl. Fradette expressed anopinion for which there was no basis, I have disregarded it in its entirety. For example, at para. 51(c) (as the ITO applies to Mr. Chau),Cpl. Fradette speculated that Mr. Nguyen had changed his phone number before the police began monitoring it because there was noactivity associated to this phone. This latter fact is clearly inconsistent with the theory that this particular phone number is associated tothe drug trafficking group. However, being committed to his theory, Cpl.

Fradette offered an opinion to rationalize this apparentlyinconsistent fact that was not based on the evidence. [9] On the other hand, where Cpl. Fradette opined that a certain drug dealer was “loading” another drug dealer, they were based onobservations made by the surveillance team. The strength of the opinion on any particular occasion will depend on the quality of theunderlying observations and surrounding circumstances. Keeping in mind that a reviewing judge must look at the evidence in its totality,I cannot say that I am persuaded to excise or completely discount any other instances where Cpl.

Fradette offered a similar opinion in theITO. [10] The Crown concedes that Cpl. Fradette’s experience was not well laid out in the ITO. It certainly would have been more helpfulhad the issuing justice known about Cpl. Fradette’s background. However, Cpl. Fradette did say that he had been an RCMP membersince 2004, and that he has been with the Vernon General Investigation

Section since 2012. It is also obvious that he was engaged in thisparticular drug investigation. As such, in my view, it would have been open to the issuing justice to afford the affiant some measure ofexperience and knowledge in the world of drug trafficking. In other words, the issuing justice need not read the ITO as if it were writtenby a lay person for whom the business of drug trafficking would be completely foreign. Accordingly, when Cpl. Fradette said that “side”means methamphetamine, it was quite reasonable for the issuing justice to have relied on it. Equally, when Cpl.

Fradette explained theconcept of one drug dealer “loading” another, it was open to the issuing justice to accept that. In any event, this latter concept isrelatively intuitive. When the consumer buys drugs from a dealer, that dealer must have gotten it from somewhere or someone, i.e.,another drug dealer. Accordingly, notwithstanding the fact that Cpl. Fradette did not include his curriculum vitae in the ITO, I find thatthe issuing justice was entitled to rely on the explanations the affiant gave about the business of drug trafficking. I note that during hiscross-examination, Cpl.

Fradette was not significantly challenged about his experience as a drug investigator. Alleged Criminal Conduct which did not result in a conviction [11] The Applicants submit that any instances of prior criminal conduct that did not result in a conviction ought to be excised. Theysay that such evidence is prejudicial to people subject to the warrant. In support of that proposition, the Applicants rely on R. v.

Gardnerand Howard, 2015 BCSC 801 at para. 59, where McEwan J. said: [59] The recitation of material from prior unrelated activities suggesting unproven criminal conduct has been the subject of adversecomment in our courts. In Regina v. Nguyen and Truong (July 26, 2010), New Westminster X072814 (B.C.S.C.), McKinnon J. of ourCourt observed: [16] In paras. 5 and 7 of the ITO, reference is made to prior criminal activities of a similar nature to that alleged in the ITO by theaccused at bar.

Paragraph 5 states that in 2003 Constable Dimopoulos located a 612 plant grow operation in outbuildings on propertywhere these same two accused at bar were found. There is also an allegation that these same two were found at a similar operationin [sic]2004. The affiant does state that: “No charges were laid” in either case. [17] There is a reference to a marihuana grow operation at 4533 208th Street, Langley, found on March 16, 2006 and for which theaccused at bar were charged.

Paragraph 7 correctly states that the accused at bar are “currently accused for these offences.” Ultimately,they were acquitted, but of course at the time of the ITO the charges were still outstanding. [18] Courts have commented about the extent to which prior offences ought to be considered in ITO’s. In R. v. Hutchings, (BC CA), [1996] B.C.J.

No. 3060, McEachern C.J.B.C., although dismissing an appeal by an offender, stated in para. 33: ...I would not approve the practice of including dismissed charges in an Information. [19] It seems to me that reference to instances where no charges were laid is equally objectionable. [12] The Crown, on the other hand, submits that there is no prohibition against including evidence of criminal conduct, even if noconvictions resulted, as long as the evidence is reliable. In support, the Crown cites R. v.

Sadikov, 2014 ONCA 72, which at para. 86, thecourt said: [86] Warrant review is an integral part – a first step – in an inquiry into admissibility of evidence proposed for reception. It is not a trialand must not take on the trappings of a trial in which the truth of the allegations contained in the indictment is explored: Ebanks, atpara. 21.

In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, notinformation that is correct, or information that contradicts other information, or information with which the reviewing judge does notagree: Ebanks, at para. 21. [Emphasis added] [13] With respect to the Applicants’ argument on this point, I do not think Hutchings goes as far as they submit it does. One mustkeep in mind in that in Hutchings, the court was specifically commenting on charges that proceeded through the judicial process andwere dismissed.

In that context, the results of those investigations may provide an unreliable basis upon which to found a warrant. But toexcise all references to criminal conduct that did not result in a conviction, even though found to be reliable and true, would go counter tothe objective of the reviewing judge, namely, to determine whether objective grounds existed to believe an offence had been committed,and whether the search of a place would afford evidence.

I agree with the Crown that, in a review of an ITO, one does not engage in thebalancing between prejudicial effect and probative value as one would during the trial stage. All of the information in an ITO, on one

level or another, is prejudicial. To do the kind of weighing suggested by the Applicants at this stage would be taking on the trappings ofa trial that Sadikov warned against. For that reason, a cognate criminal record of an accused would be generally inadmissible at trial,whereas it is a relevant consideration in an application for a warrant (see R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, atpara. 58, e.g.). [14] The view advanced by the Applicants would also result in three practical conundrums.

If the admissibility of criminal conductturns on whether a criminal conviction resulted, should an affiant include it in the ITO? At the time of its writing, decisions aboutwhether to lay charges about certain portions of an investigation have not yet been made and the result of any legal proceedings may notyet be known. The affiant could not possibly be in a position to know whether to include it in the ITO in those cases. Secondly, shouldthe issuing justice consider the impugned conduct?

For the above reasons, she/he cannot predict whether the conduct in question willresult in legal proceedings, let alone the results of same. Thirdly, what if the legal proceedings with respect to the criminal conductcomplained of are still outstanding at the time a reviewing judge is looking at the ITO? Should the decision to set aside a warrant bedeferred until the conclusion of those underlying proceedings? Would a successful appeal of the underlying charges reverse thereviewing judge’s decision to set aside a warrant?

The logical conclusion of the applicants' position may lead to an ex post factoassessment of the ITO which the jurisprudence clearly tells us it should not be. [15] In my respectful view, whether criminal conduct are properly in an ITO should not hinge on whether there were legalproceedings, or the results of same. Sometimes, the result in a legal proceeding have nothing to do with whether the allegations are true.A stay of proceedings may be granted for a violation of an accused’s s.11(

b) rights, for example. Or sometimes the Crown does notproceed with charges for a whole host of reasons. If the question remains whether the ITO provides a reasonable basis to believe anoffence has been committed, then whether there were legal proceedings resulting from certain aspects of the ITO seem intuitively muchless relevant. Following Sadikov, there is no basis to excise information from an ITO that is correct. Review of the ITO [16] Having addressed the arguments for additional excisions made by the Applicants, I turn now to a review of the ITO.

The partiesare in agreement that there are some basic and fundamental principles that govern this exercise. They have been summarized and appliedin numerous decisions. One convenient

summary can be found in R. v. Liu, 2014 BCCA 166.

At para. 39, Garson J.A. said: [39] I would summarize the main points from this jurisprudence in the following way: • The trial judge’s role in reviewing the validity of a search warrant is to consider whether the material filed in support of thewarrant, as amplified on review, could support the issuance of the warrant. • The trial judge should examine the information in its totality, not on a piece meal basis, in a “practical, non-technical, andcommon sense basis”. • The question is not whether the reviewing judge would have granted the order, but whether there was an objective basis on whichthe issuing justice could have done so. • The appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima facie case”.The phrase “reasonable belief” also approximates the requisite standard. • Reasonable grounds may be said to exist at “the point at which credibly-based probability replaces suspicion”. [17] In addition to the above list, I would add that there is a presumption of validity.

The onus is on the applicant to show that thewarrant should be set aside. See R. v. Oswald, 2019 BCSC 803, e.g., at para. 49. [18] As referenced above, I have excised the fruits of the tracking warrant from the ITO as against Mr. Nguyen, but not Mr. Chau.As a result, the ITO is effectively different for each accused. The Crown concedes that the Academy Way warrant cannot stand asagainst Mr. Nguyen. And so I will now deal with the sufficiency of the ITO for the Woodsdale Road apartment as against Mr. Nguyen. Iwill then deal with the sufficiency of the ITO with respect to both apartments as against Mr. Chau.

Woodsdale Road as against Mr. Nguyen [19] Having reviewed the ITO with the applied excisions, I have concluded that reasonable grounds existed nevertheless to believethat an offence has been and/or was being committed and that a search of the Woodsdale Road apartment would afford evidence of thatoffence. I say so based on the following conclusions that were open to the issuing justice to draw, and inferences that were open to theissuing justice to make. Below is a chain of reasoning based on the evidence that could justify the warrant.

As this was a complicatedinvestigation involving a number of avenues, any one conclusion could be based on several factors. It is not practicable to list everyexcerpt from the ITO that would support any one conclusion or inference. An attempt to do so may risk the need to simply quote the ITOin its entirety. Nonetheless, below are some salient points and inferences that were readily apparent to me. 1. David Nguyen was likely a drug trafficker and used a Dodge SX for same. On October 20, 2017, David Nguyen likely solddrugs to seven individuals while driving the Dodge SX (para. 81).

On October 24, 2017, David Nguyen was found in the Dodge SXalong with a significant amount of drugs (para.88). It is not disputed that David Nguyen was likely a drug dealer. 2. Sung Hwan Choi was likely a drug trafficker. Mr. Choi was arrested along with David Nguyen in the Dodge SX when theywere found to be in possession of drugs on October 24, 2017. Again, on October 27, 2017, Mr. Choi was arrested for possession for thepurpose of trafficking. On that occasion, he was found to be in possession of a variety of narcotics (para. 97) and he was the passenger ina Ford Focus. It is not disputed that Mr.

Choi was likely a drug trafficker. 3. The Hyundai Sonata was likely used to deliver drugs. On October 27, 2017, the same day Mr. Choi was arrested for possessionfor the purpose of trafficking, the Hyundai Sonata had a brief interaction with the Ford Focus where the passengers’ side door of each

vehicle were open adjacent to each other. Mr. Choi was the passenger in the Focus. See para. 96. 4. Selina Mitchell was likely a drug trafficker and used a Saturn Ion for same . On September 8, 2017, she likely gave drugs to Joshua Saskiw to sell (paras. 41 and 42). On September 26, 2017, she was likely selling drugs on two occasions (para. 47). On September 27, 2017, Selina Mitchell likely gave drugs to Dawn Larson for her to sell (para. 48). It is not disputed that Selina Mitchell was likely a drug dealer. 5. David Nguyen was connected to Selina Mitchell as part of the same drug trafficking organization .

The Dodge SX David Nguyen was driving on October 18 and 20, 2017 was registered to Selina Mitchell (paras. 78 and 81). 6. Pelmewash Parkway and Gatzke Road was an area likely used by the drug trafficking group to meet and transfer drugs. This is an area that is difficult for police to observe and there are no houses or businesses in the area. There was no other obvious reason for cars to go and stop in this area. Selina Mitchell drove her Saturn Ion to this area on September 20, 2017 (para. 46). She was also there on October 6, 8, 10 and 17, 2017 (paras. 62 and 76). 7.

The Chevrolet Malibu was likely used in drug trafficking activity . On October 20, 2017, Selina Mitchell’s Saturn Ion met with the Chevrolet Malibu driven by Andy Lau at Pelmewash Parkway and Gatzke Road (para. 80). On October 24, 2017, drugs were likely transported from the Malibu to the Dodge SX, driven by David Nguyen, and registered to Selina Mitchell (para. 86). On October 27, 2017, the driver of the Malibu met with the driver of the Hyundai Sonata registered to David Nguyen at Pelmewash Parkway and Gatzke Road where the driver of the Malibu handed something to the driver of the Sonata (para. 96).

The Malibu was rented by Anh Quoc Nguyen, whom Informant “A” identified as “Jerry” who runs a drug trafficking group. Informants “B” and “C” corroborate that Jerry is a drug trafficker. See paras. 25 to 29, and 54. 8. The Chevrolet Malibu was connected to the Woodsdale Road apartment . On October 24, 2017, the Malibu was observed driving from and to 3550 Woodsdale Road (para. 86). On October 25, 2017, it was seen coming from 3550 Woodsdale Road (para. 91). Gary Maltby, who lived next door to apartment #203, has noted the Malibu parked in the spot associated with the Woodsdale Road apartment.

In the summer of 2017, he specifically spoke to the occupant of apartment #203 about parking the Malibu too close to his own parking spot, which the ostensible owner of the Malibu acknowledged (para. 100). 9. The Woodsdale Road apartment likely contained drugs or other evidence . On October 25, 2017, a Hyundai Sonata registered to David Nguyen was seen in the parking stall associated to the Woodsdale Road apartment (para. 93). On November 2, 2017, Andy Lau left the Woodsdale Road apartment in a Toyota Corolla and likely gave drugs to Sung Hwan Choi at the Vernon Jubilee Hospital (para. 103).

No one lived at the apartment as there was never any noise. People come in and out of the apartment for 20 minutes to an hour at a time. There was also no furniture in the apartment (para. 100). Although subsequent police investigation revealed that there may have been some furniture at the apartment, this was not known to the affiant at the time the ITO was drafted. [ 20 ] On the totality of the evidence, one could draw the inference that an offence had been committed and that searching the Woodsdale Road Apartment would afford evidence of that offence as it was likely that was one place where drugs were kept.

The Malibu, the Sonata, and the Corolla were all seen at the apartment and all three vehicles were associated to drug trafficking. Here, it is worth reiterating that the above need not be the inferences I would have drawn. That is not the test. The test is whether it was reasonably open to the issuing justice to have drawn those conclusions and made those inferences. I find that it was.

While each particular piece of evidence may have an innocent explanation, the evidence in its totality, given the interconnectedness of all the pieces, in my view, were sufficient for the search warrant to have been issued. [ 21 ] I do wish to address one specific argument raised by the Applicants as some time was spent on it during the amplification process. On October 27, 2017, the Malibu and the Sonata met briefly at Pelmewash Parkway and Gatzke Road. At para. 96 of the ITO, Cpl.

Fradette said that the video surveillance captured that meeting and he observed the driver of the Malibu to hand something to the driver of the Sonata. Cpl. Fradette believed this to be drugs. During cross-examination, the video footage of this exchange was played and entered as an exhibit. It shows that the item being passed had a string attached to it. Cpl. Fradette said that, until the video was played in court, he had not noticed the string. He agreed that the item in the video looked like it could have been a key attached to a lanyard.

But he did not resile from his opinion that what was passed was in fact drugs based on what else he knew about the investigation. [ 22 ] I do not know with any certainty that the item passed was or was not drugs. I also cannot say that the presence of the string rendered Cpl. Fradette’s opinion impossible or even implausible. I do accept his evidence that, prior to seeing the video in court, he had not noticed that string before. I think it is fair to criticize Cpl. Fradette for not having been more careful when reviewing the video before summarizing it in the ITO.

Indeed, the Crown acknowledged that the string was something that Cpl. Fradette should have described in the ITO. However, based on his state of knowledge at the time about the video and other aspects of the investigation, I cannot say that it was unreasonable for Cpl. Fradette to have opined that what was passed was in fact drugs. It was also reasonable for the issuing justice to have relied on it. [ 23 ] One must also remember that the present application pertains to the search warrant of the Woodsdale Road apartment – not of the Malibu or the Sonata.

In other words, the issuing justice need not be satisfied that on October 27, 2017, the driver of the Malibu likely trafficked drugs to the driver of the Sonata. Rather, the question to be asked is whether searching the Woodsdale Road apartment would likely afford evidence with respect to an offence. With that focus in mind, in my view, there were many other links capable of supporting such a conclusion.

These include, but are not limited to, the fact that the Sonata likely provided drugs to Sung Hwan Choi on October 27, 2017 (para. 96) and the Sonata had been seen in the parking spot associated to the Woodsdale Road apartment on October 31, 2017 (para. 100). On November 2, 2017, a Toyota Corolla was parked at the Woodsdale Road apartment. Andy Lau then drove this Corolla and met with Sung Hwan Choi and likely provided him with drugs (para. 103). Consequently, the fact that Cpl.

Fradette neglected to describe the string that is readily apparent in the surveillance video does not significantly undermine the basis for the warrant. [ 24 ] For the foregoing reasons, Mr. Nguyen’s application to set aside the search warrant in relation to the Woodsdale Road

apartment is dismissed. The Search Warrants as against Mr. Chau [ 25 ] Since Mr. Chau is in no better a position to attack the Woodsdale Road warrant than Mr. Nguyen, it follows that his application also fails. I now need to consider whether the Academy Way warrant ought to be set aside. For the reasons above, I conclude that there were reasonable grounds to believe that the offence of drug trafficking or possession for the purpose of trafficking had been committed or was being committed.

The only other question is whether searching the Academy Way apartment would afford evidence of that offence. [ 26 ] In my view, on the totality of the evidence in the ITO, it was open to the justice to issue the warrant for the Academy Way apartment. The following are portions from the ITO that provide but one path to that conclusion: 1. Three informants gave information that 250 307-6738 was associated to “Jerry’s” drug trafficking group. On September 28, 2017, that phone was tracked to the building at 883 Academy Way and remained there until October 12, 2017 (paras. 50-54; 66). 2.

The Malibu was seen around 883 Academy Way on a number of occasions between October 3 – 26, 2017 (paras. 55 – 60, 95). 3. As explained above, the Malibu was likely used for trafficking drugs. Specifically, on October 24 and 27, 2017, it likely delivered drugs to David Nguyen in the Dodge SX and the driver of the Sonata respectively. On October 20, 2017, drugs likely flowed from the Malibu to Selina Mitchell’s Saturn Ion at Pelmewash Parkway and Gatzke Road, and then subsequently to David Nguyen’s Dodge SX in Vernon (paras. 80-81). 4. Andy Lau was the driver of the Malibu (see paras. 56, 80, 86, 91, 96).

Although some of these observations were made by way of the vehicle’s side mirror, the number of times Andy Lau was observed in this vehicle, the connection of the Malibu to Academy Way, and the surveillance video obtained at Academy Way as well as Subcity Donair make this conclusion irresistible. 5. On November 2, 2017, Andy Lau drove a Toyota Corolla from the Academy Way apartment to the Vernon Jubilee Hospital where he likely passed some drugs to Sung Hwan Choi (para. 103). 6.

Andy Lau was seen coming in and out of the Academy Way apartment on numerous occasions between October 2 to 20, 2017 (paras. 75 and 84). 7. On October 6, 8, and 10, 2017, the Malibu was seen leaving the Academy Way apartment and Selina Mitchell’s cell phone was tracked to Pelmewash Parkway and Gatzke Road (paras. 62 and 75). 8. On October 26 and 27, 2017, the Sonata was seen at the Academy Way apartment (paras. 95 and 96). 9.

On November 2, 2017, Andy Lau drove the Corolla from the Academy Way apartment to the Woodsdale Road apartment, and then to the Vernon Jubilee Hospital where a drug transaction with Sung Hwan Choi likely occurred.

The Corolla then returned to Academy Way (para. 103). [ 27 ] While it is true that reasonable grounds to believe Andy Lau was a drug trafficker does not, by itself, justify a search of the apartment associated to him, I find that, in this case, the correlation between the Malibu leaving the Academy Way apartment and Selina Mitchell going to that remote location supports an inference that Academy Way was a place where drugs or other evidence are likely to be kept. Further, the fact that Jerry’s cell phone being tracked to the Academy Way apartment strengthens the basis for the warrant.

Finally, the fact that three different vehicles that were likely involved in drug trafficking were all connected to the Academy Way apartment renders it probable that searching it will afford evidence. One must remember that evidence may include not only drugs, but money, packaging material, cell phones, other tools or items associated with drug trafficking, and documents evidencing ownership of the apartment or the various vehicles under investigation.

With that broader scope in mind, there was clearly, in my view, sufficient grounds to believe that searching the Academy Way apartment will afford evidence of the named offence. Conclusion [ 28 ] For the foregoing reasons, the search warrant for the Academy Way is set aside as against Mr. Nguyen only. Mr. Nguyen’s application to set aside the Woodsdale Road warrant is dismissed. Mr. Chau’s application to set aside both warrants is dismissed. ______________________ The Honourable A. Tam Provincial Court Judge