R. v. Chau, 2013 BCSC 176

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Chau, 2013 BCSC 176 Date: 20130206 Docket: 31039-1 Registry: Williams Lake Regina v. Chung Keung Chau and A Sheng Liu Before: The Honourable Associate Chief Justice Cullen Reasons for Judgment Counsel for the Plaintiff: Kenneth J.J. O’Brien Counsel for the Accused: George J. Wool Place and Date of Hearing: Williams Lake, B.C. October 19, 2012 Place and Date of Judgment: Williams Lake, B.C.

February 6, 2013 [ 1 ] On October 19, 2012, I dismissed an application brought by the two accused, Chung Keung Chau and A Sheng Liu, for the exclusion of evidence with reasons to follow.

These are those reasons. [ 2 ] The two accused, who are charged with one count of production of marijuana and one count of possession of marijuana for the purposes of trafficking, have brought an application for relief under the Charter of Rights and Freedoms alleging that their rights not to be arbitrarily detained or arrested, to be secure against unreasonable search or seizure, and to retain and instruct counsel without delay and to be informed of that right were infringed. [ 3 ] The two accused are jointly charged with unlawfully producing marijuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, and possession of marijuana for the purposes of trafficking, contrary to s. 5(2) of that same Act .

The offence date is September 30, 2010, which is the day on which they were arrested and charged. [ 4 ] The charges arise from the accuseds’ alleged involvement with a marijuana grow-operation located on a rural property at 5897 Little Fort Highway (Highway 24) between 100 Mile House and Lone Butte, British Columbia. The primary investigator of the alleged offence is Constable Ziemer of the 100 Mile House R.C.M.P., who was assigned the investigation of the property in January 2010.

Constable Ziemer’s investigation of the grow-operation involved periodic attendances between January and September 2010 to the vicinity of the property to make observations in hopes of establishing reasonable and probable grounds for a search warrant.

He was ultimately successful in obtaining a warrant to search the property, which consisted of approximately 11 acres, a residence, and several outbuildings. [ 5 ] The search warrant was executed on September 30, 2010, and the ensuing search of the premises revealed that in one of the outbuildings there were approximately 379 marijuana plants in a vegetative state with a commercial value of between $142,000 and $600,000, depending on the quantities in which it was sold. [ 6 ] The search also included a search of the residential premises on the property, which was a two-storey house.

In portions of the house, there were located racks and lights for growing marijuana. There were two bedrooms on the upper floor of the house. One appeared to be more permanently occupied in that it had clothing hung up in the closet. The other bedroom had an open suitcase with clothing in it. [ 7 ] In the evidence given at trial, the accused Liu said he used the former bedroom - with the clothes hung up in the closet - but he denied knowing who the clothes belonged to. Chau said that he just slept on the couch in the living room. Both testified, or implied, that a person by the name of “Mr.

Chen” used the other bedroom with the suitcase in it. [ 8 ] No one was seen or found on the property at the time of the execution of the search warrant, although there were signs of contemporaneous habitation of the home. The driver’s licence for the accused Liu was found during the search of the house in a drawer in the counter of the kitchen. As well, some prescriptions and invoices with his name on them were found in the same drawer. [ 9 ] During the course of his surreptitious observations of the property, Constable Ziemer associated two specific vehicles to it. The first was a Toyota 4Runner bearing B.C.

Licence Plate No. 866 SKE. He saw that vehicle initially on February 26, 2010, again on February 28, 2010, and “on a couple of other occasions” when he drove by the property in early March. He never saw that vehicle after March 2010. Its registered owner is the accused Chau. He also saw another vehicle, which he identified in his evidence as a white pick- up, and which in his contemporaneous notes he identified as a white Ford on February 26, 2010. He testified that he had seen that vehicle

there before February 26 and saw it again on February 28, but he had not been able to identify it by its licence plate. [ 10 ] He attended the property on April 3, 2010, to conduct surveillance and saw a white pick-up parked on the property, which he identified as a white Dodge pick-up bearing B.C. Licence Plate No. 2311 LR. He checked the registration for that vehicle which showed that it was leased from Daimler Chrysler Financial Services. The lessee was Chau Chung Keung, of 3995 Charles Street in Vancouver, BC. He also noted seeing a person on the property whom he described as an Asian male.

He re-attended the property on June 2, 2010, and September 1, 2010. He did not notice any vehicle or persons on the property on those occasions. He again attended on September 3, 4, and 21, noting odors consistent with marijuana in a vegetative state coming from the property. He did not see any vehicles or persons on the property on those occasions. [ 11 ] On September 28, 2010, he attended the property at approximately 7:35 p.m. and saw the white Dodge parked in the driveway. At that time, it bore BC Licence Plate No.

CH 5218, which, when checked, related to the same vehicle as which earlier bore Licence Plate No. 2311 LR. The registered owner was Chung Keung Chau of 3995 Charles Street. On that occasion, he also saw an Asian male come out of the residence and let a dog, which he had previously seen on the property, out of a pen on the property. The male then walked north on the property and Constable Ziemer lost sight of him. On that occasion, again, he smelled some vegetative marijuana which he believe to be coming from the property. [ 12 ] Constable Ziemer returned to the property again in the morning of September 30, 2010.

The same white Dodge was in the driveway of the property. He was able to detect an odor of vegetative marijuana which he believed was coming from the main outbuilding (in which the grow-operation was eventually found). He saw a person he described as an Asian male leaving from the outbuilding and walking on the property. [ 13 ] Later, Constable Ziemer obtained the search warrant for the premises and returned to the property with five other officers to conduct a search. When the police arrived, it did not appear that anyone was on the property.

There were a number of police vehicles in the driveway, which were visible from the highway. It was necessary to gain entry to the house and outbuildings by force. [ 14 ] During the search, Constable Ziemer testified that he was shown a driver’s licence belonging to the accused Liu located in the kitchen drawer on the premises. At 7:04 p.m., he was advised that he should go home.

He decided that the person on the driver’s licence would still be in the area as he noted luggage, men’s clothing, toiletries, food on the stove and other indications that the house’s residents were still in the area. [ 15 ] As to the driver’s licence, it was located in a wallet in a drawer in the kitchen counter.

It appears from the evidence of Corporal Friesen, who was present for the search and took photographs of the scene, and Constable Lukash, who was the exhibit officer who seized the wallet and driver’s licence, that the photograph was taken and the wallet seized at about 7:30 p.m., after Constable Ziemer had left the premises at around 7:04 p.m.

Corporal Friesen was asked if he opened the drawer to locate the wallet and testified he did not know if he did or others searching the house opened the kitchen drawer, but when he arrived there “the drawer was open” as shown in a photograph. [ 16 ] After leaving the property, Constable Ziemer went eastbound on Little Fort Highway towards Lone Butte. As he was travelling, he noticed a white pick-up travelling in the opposite direction. He testified he was unable to see the licence plate of the vehicle and so he turned and followed it.

He noted that as the vehicle came close to the driveway of the property, it braked, and stopped or nearly stopped at the end of the driveway, but then proceeded on in a westward direction. He was able to get close enough to the vehicle to establish that its plate was CH 5218 and it was the same vehicle he had seen on the property earlier on April 3, September 28, and September 30, 2010.

He testified he believed it was the same vehicle he described in his evidence as a white pick-up and in his notes as a white Ford, which he testified to seeing on February 26, February 28 and earlier, but which he was unable to identify by licence plate number at the time. [ 17 ] Constable Ziemer engaged his emergency equipment and the vehicle pulled over. Constable Ziemer went to the driver’s side and spoke with the driver.

Constable Ziemer said the driver was the same, or very similar, to the person he saw earlier that day on the property and there was a passenger in the vehicle whom he testified he saw on the property two days previously. He also noted the passenger looked like the person depicted in the driver’s licence, which had been found in the drawer in the kitchen and which he had earlier observed. [ 18 ] Constable Ziemer testified he said to the passenger “Your name is Liu” and the passenger said “Yes”.

Constable Ziemer said he was able to say that because he recalled seeing the name on the driver’s licence and the passenger looked like that person. He said he “was very confident” he had located the parties responsible for the grow-operation. He radioed for back-up, saying he had made a traffic stop, and waited for Constable Ferguson to arrive. When Constable Ferguson arrived, Constable Ziemer placed Mr. Chau under arrest. Constable Ziemer testified his basis for the arrest was: that Mr.

Chau had a close resemblance to the person on the property that Constable Ziemer had seen earlier that day, both in his look and in the clothing he was wearing; that Chau made statements that did not match up (by telling Constable Ziemer he was going from Kamloops to Vancouver, which would not have taken him to the Little Fort Highway); that Chau was driving a vehicle associated to the property in the past few days and earlier in the year; and the fact that the passenger’s driver’s licence was found on the property. [ 19 ] Accordingly, Constable Ziemer arrested Mr. Chau for the production of marijuana.

The driver, Mr. Chau, said he did not speak English. Constable Ziemer gave him his Charter rights and the police caution from memory. He asked Mr. Chau if he understood and he said he did not. He then escorted Mr. Chau to his police vehicle. He then conducted a search of Mr. Chau and located a set of keys on his person. He had brought with him a print-out containing s. 10 rights and the standard police caution in two Chinese dialects. He showed that printout to Mr. Chau who said he could read one of them. He appeared to understand. When Constable Ziemer asked him to relate his understanding, Mr.

Chau said “I talk to lawyer”. He also said he “didn’t have to talk”. Constable Ziemer testified that that showed him that Mr. Chau understood what his rights were. Mr. Chau also said that a Legal Aid lawyer was “okay”. [ 20 ] Constable Ziemer then approached the accused Liu, who was being detained by Constable Ferguson, and he arrested Liu at about 7:20 p.m. The reasons Constable Ziemer arrested Liu were that Constable Ziemer had seen a person who looked similar to Liu on the property leaving the residence previously, that Constable Ziemer had seen Liu’s driver’s licence in a drawer in the residence, that

Constable Ziemer had asked if the passenger’s name was Liu and the passenger agreed, that Liu was present in the truck that was associated to the property, and the fact that the truck appeared to stop at the driveway to the house being searched but then moved on. [ 21 ] The accused Liu indicated to Constable Ziemer that he did not speak English, but Constable Ziemer gave him his Charter rights and caution in English. He searched him and found a set of keys in his jacket. [ 22 ] He then showed the accused Liu a copy of the Chinese Charter printout.

The accused Liu said “No way” and that he had no schooling in China, so Constable Ziemer spoke to Mr. Chau and asked him to explain to Mr. Liu what he had read on the Chinese Charter cards. According to Constable Ziemer, Mr. Chau said he would provide that explanation. [ 23 ] Constable Ziemer then spoke again to Constable Ferguson, who had in the meantime searched the vehicle and found two other sets of keys in the vehicle.

He gave Constable Ferguson the sets of keys he found on the accused Chau and Liu and made sure Constable Ferguson knew which was which. [ 24 ] Constable Ziemer then escorted the two accused to the detachment in 100 Mile House, arriving at 8:07 p.m. At 8:30 p.m. he made a call to the Legal Aid bridge’s line, leaving a message to return the call. [ 25 ] At 8:40 p.m. he began to book the two accused into cells.

He was trying to get Liu’s name from him, that is the rest of his name, and shortly after that the exhibit officer gave him the driver’s licence that she had earlier seized from the residence, confirming that it was Mr. Liu. [ 26 ] Constable Ziemer waited for a call from Legal Aid and from the Interpreter’s Services. At 9:37 p.m. he called Legal Aid again. At 10:03 p.m. Legal Aid returned the call. At that time they had an interpreter. He gave the phone to the accused Chau and left him in privacy. [ 27 ] At 10:09 p.m., he noted that the call involving Mr. Chau had ended. Mr.

Chau told him that he had been cut-off. Constable Ziemer called Legal Aid back and left another message. After that, he took the two accused into an interview room with an interpreter on the telephone to explain to them the process of taking fingerprints. He testified that they agreed to undergo fingerprinting and photographing that day rather than returning on a later date. Accordingly, he wrote out a form of consent in his notebook and read it to them through the interpreter. They each signed the consent in his notebook. [ 28 ] Legal Aid did not call back.

Constable Ziemer went through the Charter rights and police caution through the interpreter and he asked if they wanted to contact a lawyer. Chau said that he would wait until he got back to Vancouver. And after he was asked if he wanted to contact a lawyer, the accused Liu said “I have nothing to say”. [ 29 ] Mr. Chau asked several times if he should speak to a lawyer now or in Vancouver. Constable Ziemer told him that it was up to him. [ 30 ] At 11:00 p.m. he took the two accused into the booking room for photographing and fingerprinting.

The fingerprint forms were marked as exhibits on the voir dire . [ 31 ] In cross-examination on the voir dire , Constable Ziemer agreed he put no description of either person whom he saw on the property in his notes beyond describing them as “Asian males”. He also agreed that it was difficult to make observations of individual characteristics of a person from the distance where he was located.

He agreed that “persons of Asian descent” were the only particulars he had noted in his notebook. [ 32 ] He also agreed that he originally described the white pick-up truck as a “white Ford” and was not able to identify it by a licence when he saw it prior to April 3, 2010. [ 33 ] Both of the accused testified on the voir dire . Mr. Liu recounted his recollection of his arrest and the aftermath. He testified Constable Ziemer said nothing to him about his right to speak to a lawyer, denying that he had showed him a card or a piece of paper. He had no recollection of being shown the Chinese Charter .

He testified that without his glasses, which he did not have at the time, he could not have read the Chinese Charter even if he had been shown it. He later testified that he could not read more than at a Grade 1 level in Chinese and therefore could not read or understand much of the Chinese Charter in any event. [ 34 ] He denied being told anything by Mr. Chau about the contents of the Chinese Charter warning. He denied knowing or understanding anything of the right to speak to a lawyer. [ 35 ] Once at the detachment, he was placed in a cell with Mr. Chau. There were two interpreters who called.

The first call was very short and was cut-off immediately. According to Mr. Liu, the second interpreter was involved for only one or two minutes and translated to them that they were charged with growing and trafficking marijuana and they had to sign a piece of paper to be released. Nothing was said about the right to speak to a lawyer. [ 36 ] Mr. Liu was shown a copy of Constable Ziemer’s notebook where it is alleged he signed his consent to be fingerprinted, and he was quite ambiguous about whether the signature was his or not.

At one point, he testified he was certain he didn’t sign the notebook and he denied agreeing to be fingerprinted. He said the fingerprinting occurred after the first very short contact with an interpreter and before the second interpreter. He said the paper was signed and the fingerprints were taken before the second interpreter was made available to them by telephone. He testified that the call with the second interpreter was mainly a discussion between the police officer and the interpreter and that it took place “a long time” after they had been fingerprinted.

He testified that they were told they had to sign something like the fingerprint form. [ 37 ] He testified he did not hear being told that he had a right to talk to counsel but later in his evidence equivocated saying “I’m not sure”. He denied telling Constable Ziemer that he couldn’t read the Chinese Charter warning because he had never been to school. He did not recall Mr. Chau “sharing” with him in the Chinese language about the right to counsel. He said as far as he could recall, it did not

happen. He agreed he could only read a little and at the Grade 1 level. [ 38 ] Mr. Chau’s evidence was somewhat similar to Mr. Liu’s, but different in some ways. He denied being told about his right to counsel. He agreed he was shown a piece of paper by Constable Ziemer at the arrest scene but it was about one-third of the size of the print-out. He saw one piece of paper while he was in the police vehicle. He said he understood he could speak but whatever he said could be used against him or he could remain silent. He testified there was nothing about the right to counsel.

He agreed, however, that he conveyed to Mr. Liu whatever he understood about the contents of the paper he was shown by Constable Ziemer. [ 39 ] Once he was in the cells at the 100 Mile House detachment, he was given access to a telephone. He understood it was an interpreter but the only word spoken was “Wai” - that is Chinese for hello. He said at that point he was cut off. He kept saying “Wai” back for about a minute. He subsequently told Constable Ziemer he had been cut off. After the first call, he, and then Liu, were taken to a place where their fingerprints and pictures were taken.

They were then taken back to their cells. [ 40 ] He testified there was a second call with an interpreter about 40 minutes to an hour after the fingerprinting. Constable Ziemer spoke to an interpreter via a speakerphone. An interpreter told them they were being charged for growing and trafficking in marijuana and they had to sign something acknowledging it. He said he didn’t want to as he did not want say he was guilty.

Constable Ziemer talked to the interpreter and the interpreter said that if they did not sign the document they would not be released, but that signing did not mean they were guilty, it just meant they promised to appear. He testified he signed in Constable Ziemer’s notebook because he was told he couldn’t leave without signing it. And he signed it after the telephone call. [ 41 ] Nothing was said about the right to consult with a lawyer. [ 42 ] The duration of the call with the interpreter was about one minute and no longer than two minutes.

He denied being given a choice to provide fingerprints. [ 43 ] He agreed that he was shown a copy of the Chinese Charter by Constable Ziemer at the arrest scene. He said he was shown traditional Chinese writing but understood only simplified Chinese writing. He denied seeing the second page, which had simplified Chinese writing on it. He testified the only part he read was about remaining silent and whatever he said could be used against him. He said he told Liu, based on what he understood of what he had read.

He might have said that he “told him these two sentences but he was not sure”. [ 44 ] He agreed he could have asked any questions of Constable Ziemer while the interpreter was involved. [ 45 ] Constable Ziemer was recalled in response to evidence of the two accused about their version of the sequence of events, which had not been put to him.

He confirmed his evidence that he had left the scene of the search at 7:04 p.m., that he arrested Chau at 7:10 p.m., that he gave a letter-sized document containing Chinese characters to Chau at 7:20 p.m., that he arrived at the detachment at 8:07 p.m., that he left a message for Legal Aid with the interpreter at 8:30 p.m., that he put both accused into cells at 8:40 p.m., that he made a call to an immigration officer at 9:10 p.m., that he received a call from a Mosaic interpreter at 9:28 p.m. and that he re-called Legal Aid at 9:37 p.m. Constable Ziemer said he received a call from Legal Aid for Mr.

Chau at 10:03 p.m. and that the call concluded at 10:09 p.m. He agreed he was told by Mr. Chau that the call was incomplete and thereafter he re-called Legal Aid. The Mosaic interpreter called back at 10:26 p.m. He said the discussion with the two accused through an interpreter began at 10:26 p.m. and it ended at 11:00 p.m.

He testified that the fingerprinting and photography concluded at 11:55 p.m. [ 46 ] It was established through a review of the police detachment security videos and admitted as fact by the two accused that the fingerprinting took place at a time consistent with the evidence of Constable Ziemer, and not consistent with that of the two accused. [ 47 ] There is evidence from Constable Lukash, the exhibit person for the search of the premises, that someone unknown to her, other than her, opened the kitchen drawer containing the wallet which contained the licence belonging to A Sheng Liu, which she seized at 7:33 p.m. [ 48 ] Corporal Friesen, who took photographs at the scene, testified that he photographed the wallet in the open drawer, then took out the licence and photographed it before it was seized by Constable Lukash. [ 49 ] The contention of the accused applicants is that Constable Ziemer breached their rights by arbitrarily detaining them after pulling over their vehicle when he had no reasonable suspicion to justify that detention; that the search of the vehicle was illegal and warrantless and hence unreasonable; and that he failed to properly inform the applicants of their right to counsel and to facilitate their contact with counsel. [ 50 ] The applicants further submit that as a result of the Charter breaches, the keys found by Constable Ferguson and Constable Ziemer’s searches of the vehicle and the two accused, respectively, should be excluded and the fingerprints obtained from Mr.

Liu pursuant to his arrest should, as well, be excluded. 1. Arbitrary Detention/Unlawful Arrest [ 51 ] The accused submit that the evidence that two vehicles (a 2008 white Dodge Ram and a 1990 Toyota 4Runner, both belonging or leased by the accused Chau) were seen on a number of different occasions on the property between February 1st and the end of September 2010 is not evidence that does more than raise mere suspicion. It does not amount to reasonable suspicion.

The accused submit that the evidence that Constable Ziemer saw on different occasions two Asian males on the property at the same time as the white Dodge, and that they have some degree of resemblance to the applicants does not raise the level of evidence to a reasonable suspicion. They further contend that the evidence that the vehicle was travelling toward the property and slowed down or stopped at the driveway, driving away when it would have been evident there were police cars present, similarly does not raise the level of suspicion to a threshold of reasonableness. [ 52 ] Counsel for the accused, Mr.

Wool, relies on the case of R. v. Reddy , 2010 BCCA 11 , in which the Court of Appeal explained

the standard of reasonable suspicion justifying a detention at paras. 64-67 as follows : [64] In Mann , the Supreme Court of Canada held that police officers have a common law power to detain a person for investigation if they have reasonable grounds to suspect that the detainee is involved in on-going criminal activity. In discussing the threshold for the invocation of that power, Mr. Justice Iacobucci said: 34 The case law raises several guiding principles governing the use of a police power to detain for investigative purposes.

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test. 35 Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty.

Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain.

The power to detain cannot be exercised on the basis of a hunch , nor can it become a de facto arrest. . . . 45 To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. … [Emphasis added.] [65] With respect to the reference in paragraph 45 of Mann to “a particular crime”, the Crown notes that in Nesbeth , Rosenberg J.A. held that “it is not necessary to pinpoint the crime with absolute precision”: para. 18.

In that case, it was held that the circumstances, which included Mr. Nesbeth’s flight, supported a reasonable suspicion that he was in possession of either drugs or weapons, or both. [66] Mr. Justice Binnie, in R. v.

Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456, had this to say about the difference between the reasonable suspicion required for an investigative detention, and the higher threshold of reasonable grounds to believe (i.e., credibly- based probability) required for an arrest: 75 The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity.

A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. [67] As is the case with the power of arrest, an officer invoking the power of investigative detention must subjectively believe that the requisite standard has been met, and the officer’s belief must be objectively reasonable: Mann at para. 27; R. v. Greaves , 2004 BCCA 484 , 189 C.C.C. (3d) 305 at para. 33 . [ 53 ] Mr.

Wool also relied on Reddy , insofar as it dealt with the evidentiary value of a flight from an unlawful detention, in contending that the vehicle’s progress in driving away from the driveway had no evidentiary value. [ 54 ] In my view, the situation in Reddy is different in that aspect from the case at bar and the reasoning in that case is not applicable in the present case. [ 55 ] I conclude that when he pulled the white Dodge Ram over shortly after 7:00 p.m. on September 30, 2010, Constable Ziemer was acting on reasonable suspicion, not mere or bare suspicion, and that when he arrested the two accused he had the requisite grounds. [ 56 ] The vehicle, which he earlier identified by its licence, was owned by Mr.

Chau. Mr. Chau also owned a Toyota 4Runner, which Constable Ziemer observed on the property a number of different times earlier in the year, and at least one time (April 3, 2010) with the Dodge. He also observed the Dodge on the property three times: on April 3, 2010, September 28, 2010 and September 30, 2010. Although he did not specifically see the plate on September 30, 2010, he testified it was the same vehicle, and I accept that was a reasonable conclusion for him to come to.

The only unidentified vehicle associated to the property was what Constable Ziemer described in his evidence as a white pick-up and in his notes as a white Ford, which he saw earlier in the year. His belief that, in fact, it was the same vehicle as the white Dodge and that he earlier misidentified it as a white Ford is, in light of all the evidence, not unreasonable. [ 57 ] Thus, there is the basis for a reasonable belief that only two identified vehicles were associated to the property over a period of eight months and both of them belong to Mr. Chau.

The only identified vehicle seen on the property in September was the white Dodge belonging to Mr. Chau. There is no evidence that any vehicle identified to any other person was associated to the property in the preceding eight months.

In my view, that combination of evidence supports a reasonable suspicion that the owner or operator of that vehicle was an inhabitant of the premises, not a mere visitor. [ 58 ] These facts, taken with the behaviour of the driver in slowing or stopping the vehicle at the driveway where the police vehicles could be seen and then accelerating away, further support the contention that the occupants of the vehicle were associated to the property and alive to what was afoot. [ 59 ] Once the vehicle pulled over and Mr.

Chau was identified as the driver, the evidence of a connection to the property was further strengthened by virtue of Mr. Chau’s ownership of the vehicle and of the vehicle previously seen on the property, the Toyota 4Runner. The evidence of his connection was further buttressed by Constable Ziemer having seen two separate Asian males on the property when

the vehicle was present. The first time was on September 28, 2010, and the second time was on September 30, 2010.

Although ConstableZiemer could not identify the Asian males he saw, he described them as similar or resembling the men he arrested in the white Dodge. [60] While that evidence is not capable of establishing their identity as those who Constable Ziemer saw on the property, it does addsubstance to the reasonableness of his belief in a nexus between the accused and the ongoing offence of production and possession forthe purposes of trafficking. [61] Constable Ziemer had seen one of the Asian males come out of the outbuilding, where he would later discover the grow-operation, while the truck, which he would later pull over with the two males in it, was parked on the property.

There is also evidencethat Constable Ziemer saw the accused Liu’s BC Driver’s Licence in the premises and he recognized him from that piece ofidentification. [62] Mr. Wool, for the accused, challenges the reliability or truthfulness of Constable Ziemer’s evidence on this point, relying on theevidence of Constable Lukash that she seized the wallet and licence at 7:33 p.m., after it was photographed by Corporal Friesen, whotestified in turn that it was he who took the licence out of the wallet to photograph it. Mr.

Wool argues that since Constable Ziemer hadleft the property at 7:04 p.m. there is at least a doubt whether he saw that licence before he stopped and arrested Mr. Chau and Mr. Liu. [63] Neither Constable Lukash nor Corporal Friesen testified that they opened the drawer before photographing the wallet and thelicence and then seizing those items. Constable Lukash also testified that it was standard procedure for other officers conducting thesearch to locate items of interest and leave them in place and notify her and the photographer of their presence for seizure.

CorporalFriesen testified that the drawer was open when he arrived to take Photograph 111 in Exhibit 8 showing the kitchen area and the opendrawer. [64] Generally, Constable Ziemer’s evidence appears to be reliable.

Although the nature and significance of the events he testified toconcerning the arrest and its aftermath were challenged and to some extent contradicted by the evidence of the two accused on the voirdire, it appears that, in light of the objective evidence of the police detachment security tapes, Constable Ziemer’s evidence of thesequence of events was accurate and the evidence of the two accused was not. [65] Further, although his evidence of supplying the accused with a Charter warning and police caution written in several Chinesedialects was contradicted by the accused Liu, it appears to be confirmed, at least in part, by the accused Chau, as does his request ofChau to explain to Liu what was in the Chinese Charter. [66] I, thus, find that overall Constable Ziemer was a reliable witness and on balance in light of all the evidence, I accept histestimony that he viewed the licence of Mr.

Liu before he left the property. It is clear he was on the property for over an hour and a halfbefore he left. He did not recall who showed him the licence and thus, his evidence did not tie it in time or circumstance to when it wasphotographed by Corporal Friesen or seized by Constable Lukash.

Constable Lukash did not recall opening the drawer and CorporalFriesen testified that the drawer was already open when he arrived and took photographs of the contents of the kitchen which showed theopen drawer. [67] It is logical to conclude that whoever opened the drawer discovered the pills and wallet, which show evidence of the identity ofoccupants of the residence, and left the drawer open for its contents to be photographed and seized.

Such a scenario is not inconsistentwith Constable Ziemer’s version of the events and of seeing the licence before he left the premises. [68] Thus, in my view, on the totality of the evidence the detention and arrest of both Mr. Chau and Mr. Liu was lawful. The basisfor a lawful arrest was set out by Frankel J.A. in R. v. Jir, 2010 BCCA 497, where he wrote as follows at paras. 24 and 27: [24] In Storrey, Mr. Justice Cory said this about the assessment of reasonable grounds to arrest (at 250): In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. [Emphasis added.] Further, as Madam Justice Bennett reiterated in R. v.

Luong, 2010 BCCA 158: [24] The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations ofthe officer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge andskills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to the sameconclusion as the police officer. ... ... [27] As has been stated many times, the “reasonable grounds” standard is not only less than that required for conviction, but is alsoless than the civil standard of proof.

Madam Justice Wilson put it this way in R. v. Debot, (SCC), [1989] 2 S.C.R. 1140at 1166: The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. Iagree with Martin J.A. that 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. More recently, in Mugesera v. Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, the Court stated (atpara. 114):

… the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable incivil matters of proof on the balance of probabilities [citations omitted]. Further, as Mr. Justice Hill noted in R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 at 367 (Ont. Ct. (G.D)): The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probabilityas to the existence of the facts and inferences asserted. [69] In the case at bar, there is clear and unequivocal evidence of an offence being committed.

The only question is whetherConstable Ziemer’s stated belief that both Mr. Chau and Mr. Liu were involved in the offence was reasonable. I conclude it was. Thepresence of two vehicles owned by Mr. Chau on the property over time, together with the lack of any evidence of a vehicle associated toanyone else, the evidence that at the time the house was searched it was occupied, the observed presence of two Asian males on theproperty on different occasions, the presence of Mr.

Liu’s wallet and driver’s licence on the property, the apparent intention of the driverof the Chau vehicle to turn into the driveway until it became possible to see the presence of the police vehicles, and the presence of bothMr. Chau and Mr. Liu in a truck associated to the property, in my view, all combine to establish the reasonableness of ConstableZiemer’s belief that they were implicated in what was afoot on the property. Thus, I conclude the arrests were lawful. [70] As to the lawfulness of the ensuing search of Mr. Chau and Mr.

Liu and the vehicle, in my view, that issue is addressed in R. v.Caslake, (SCC), [1998] 1 S.C.R. 51, which establishes that where there is a warrantless search, the onus is on theCrown to show that it was lawful. [71] The Court in Caslake went on, however, to discuss the lawfulness of a search conducted incidental to an arrest, concluding thatsearches incidental to arrest legitimately extend to automobiles. [72] The Court in Caslake confirmed that searches incidental to arrest have three main purposes: 1. ensuring the safety of the police and public; 2. the protection of evidence from destruction at the hands of the arrestee or others; and 3. the discovery of evidence that can be used at the arrestee’s trial. [73] The Court further noted that the requisite standard of belief for the search is not reasonable and probable grounds but the lesserthreshold of their being “some reasonable basis”. [74] The Court noted at para. 20: The police have considerable lee-way in the circumstances of an arrest which they do not have in other situations. [75] In my view, in the case at bar, the circumstances of the searches were anything but invasive: they appeared to be rationallyconnected to the investigation and not for any oblique purpose.

I, accordingly, find the searches conducted to be a reasonable exercise ofthe police common law power to conduct a search incidental to arrest. [76] In any event, even if they were unlawful and hence, unreasonable, I would nevertheless admit the evidence acquired as a resultof the searches in light of the factors set out in R. v.

Grant, 2009 SCC 32, of the seriousness of the Charter offending police conduct, theeffect of the conduct on the accused’s rights and the effect on the public’s view of the administration of justice if the evidence isexcluded. [77] In my view, those factors militate in favour of admission: the breach, if there was one, was minor and non-invasive, given thatclearly there was a basis to arrest the accused; the police conduct was similarly not serious and was conducted in good faith; the evidencewas real, not conscripted, and would likely have been otherwise acquired.

In my view, in all of the circumstances, exclusion of cogentevidence for a non-invasive breach of a Charter right involving non-egregious good-faith conduct by the police would have a negativeeffect on the public’s view of the administration of justice. I therefore would admit the evidence acquired as a result of the search. 2. Breach of the Accused’s s. 10(

b) Rights and the Taking of Fingerprints [78] The thrust of the accused Liu’s submission with respect to the exclusion of his fingerprints is that he was never properlyinformed of his right to counsel before his fingerprints were taken and he never had the benefit of consulting with counsel before heconsented to the taking of his prints. [79] As to the circumstances of the arrest and its aftermath, I prefer the evidence of Constable Ziemer to that of Mr. Liu or Mr.

Chau.As I noted earlier, the two accused testified inconsistently as to whether Constable Ziemer had with him and showed them a copy of theCharter warning and police caution in Chinese. Mr. Chau acknowledged he was shown something but indicated it was only the policecaution. He agreed he conveyed some information to Mr. Liu. Mr. Liu, on the other hand, denied having been shown the Charterwarning or anything else in Chinese and denied that Mr. Chau said anything about it or the police warning. Mr. Liu agreed, however, hecould not read, which was what Constable Ziemer testified Mr.

Liu told him when he sought to give him his Charter rights in a writtenChinese format. In my view, that circumstance and Mr. Chau’s acknowledgement that he was shown something by Constable Ziemeradds weight to Constable Ziemer’s evidence and detracts from the reliability of Mr. Liu’s evidence. [80] Further, contrasting Mr. Liu’s and Mr.

Chau’s evidence of the sequence of events at the detachment with Constable Ziemer’sreveals a conflict, which was ultimately resolved favourably to Constable Ziemer by the objective evidence of the detachmentsurveillance videos establishing that the accused were not fingerprinted until after they had been given their Charter rights and after theyhad consented to give their prints through an interpreter. In my view, Mr. Liu’s evidence that he did not recognize the third part of hissignature in Constable Ziemer’s book is contrived and I accept that both he and Mr. Chau signed the consent after having it explained to

them through the interpreter, and that they both were subsequently given their Charter s. 10(

b) rights and declined to exercise that right to contact counsel. I further accept that Constable Ziemer did contact Legal Aid counsel on their behalf as a result of his dealings with them at the scene and that supports his contention that he did provide meaningful advice, at least to Mr. Chau, at the time. [ 81 ] I accept that the call was cut-off at some point and that Mr. Liu did not have an opportunity to contact counsel.

While an attempt to re-contact counsel was made before any fingerprinting was done, I do not accept that there was an affirmative duty on the police to forego attempting to get the fingerprints pending contact with counsel and, in any event, I accept that after having received the informational component of s. 10(

b) via the interpreter, the two accused waived any such right. [ 82 ] The accused argues that the consent to provide fingerprints was coerced by a threat made by Constable Ziemer to not otherwise release the accused. I do not accept that evidence. It is clear that what was explained to the accused was that they needed to sign a promise to appear in order to be released. In my view, Mr. Chau essentially acknowledged that. Mr.

Wool argued that had the accused been allowed to speak to counsel before signing the consent or giving fingerprints, they may have refused and avoided the conscripted evidence. [ 83 ] There is a body of authority to the effect that the taking of fingerprints does not constitute a search and seizure. In R. v. Mattu , [1996] B.C.J.

No. 2182 (S.C.) , Preston J. addressed the issue of taking fingerprints as an incident of a lawful arrest at para. 20, as follows: The authorities have consistently held that the obtaining of fingerprints as an incident to a lawful arrest for an indictable offence does not constitute a search. In any event, the search was not unreasonable in the circumstances. Accordingly, whether or not the taking of the accused’s fingerprints was without statutory or common law authority, the admission of the fingerprints obtained in the circumstances before me would not bring the administration of justice into disrepute.

The converse would be true. The exclusion of the evidence would bring the administration of justice into disrepute. [ 84 ] In my view, that observation accurately reflects the circumstances here. Constable Ziemer made attempts at the scene to communicate the accused’s s. 10(

b) rights, both orally and in written Chinese, and enlisted Mr. Chau to help Mr. Liu understand. He arranged for a Legal Aid lawyer with a Chinese speaking interpreter to call the detachment. He held off doing anything substantive until the call came. As far as he knew, the call lasted six minutes. He attempted to re-contact Legal Aid when he heard the call was cut short. He arranged for an interpreter to explain things to the two accused. By then, he had been given Mr. Liu’s licence from the premises.

He gave them the option of being fingerprinted then or later after charges were laid, which would entail them returning later to 100 Mile House for the fingerprinting; he had them sign the consent. He had their s. 10(

b) rights repeated and the police caution read with the benefit of the interpreter. He did not seek to elicit a statement from either accused. He only took their fingerprints after they declined to speak to a lawyer. [ 85 ] Under the Identification of Criminals Act , R.S.C. 1985, c. I-1, s. 2(1), the two accused would have been statutorily compelled to provide their fingerprints once charged. There is no evidence before me that, but for the fingerprints, Mr. Liu would not have been charged.

There was significant other evidence connecting him to the premises. [ 86 ] In my view, even if it could be said that obtaining a consent to fingerprinting or obtaining the fingerprints was a violation of the accused’s Charter rights, analyzing the breach in light of R. v. Grant , supra , would lead to a conclusion that the evidence should be admitted. As I see it, firstly, the evidence would have been obtained in any event and thus, the impact on the accused’s rights was not great. Secondly, the fingerprints were taken in good faith.

Thirdly, it was a minimal intrusion on the accused, and fourthly, it was not a serious breach by the police. [ 87 ] In my view, exclusion of the evidence in the circumstances of this case would impair public confidence in the administration of justice, while admitting it would not. Accordingly, I would admit the evidence as tendered. “Associate Chief Justice Cullen”