R. v. Diep, 2013 BCSC 2448

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Diep, 2013 BCSC 2448 Date: 20131211 Docket: 35969-2 Registry: Courtenay Regina v. Phuoc Huu Diep and Thi Yen Lai Before: The Honourable Mr. Justice Halfyard Oral Ruling on Voir Dire #1 Counsel for Crown: J. Farenholtz Counsel for Accused Diep: R. Neary Counsel for Accused Lai: R. Miller Place and Date of Trial/Hearing: Courtenay, B.C. December 10, 11, 12, 2013 Place and Date of Judgment: Courtenay, B.C. December 11, 2013 [ 1 ] THE COURT: Mr. Diep and Ms.

Lai are charged with having possession of cocaine for the purpose of trafficking on November 2, 2012, at Courtenay. The evidence on which the charge is based was obtained by a police search of a residence at Apartment #201, 2760 Cliffe Avenue in Courtenay, which was authorized by a search warrant issued on November 2, 2012. Mr. Diep challenges the validity of the search warrant. He says that there is no evidence in the information to obtain as presented to the issuing justice which could provide objective support for the affiant's subjective belief that Mr.

Diep was living at #201, 2760 Cliffe Avenue. [ 2 ] A voir dire has been held to determine whether the issuance of the search warrant was unlawful and in violation of Mr.

Diep's s. 8 Charter rights. [ 3 ] The evidence on the voir dire consists solely of the search warrant and the information to obtain prepared by Corporal Paul Douglas on November 2, 2012, to support his application for the search warrant. [ 4 ] The information to obtain was received by the judicial justice of the peace by telecommunication at 9:50 p.m. on November 2, and the warrant was issued at 10:08 p.m. [ 5 ] The defence concedes that the evidence in the information to obtain provides objectively reasonable and probable grounds to believe that Mr.

Diep was trafficking in cocaine and that he was selling cocaine out of his residence. The issue is whether the evidence provides objectively reasonable and probable grounds to believe that evidence of the offence, including cocaine, would be found at Apartment #201, 2760 Cliffe Avenue. [ 6 ] Corporal Douglas expressly asserted his belief that cocaine would be found at #201, 2760 Cliffe Avenue: see paragraphs 5(

a) and 33 of the information to obtain. The question is whether the evidence provides objective support for the officer's subjective belief. [ 7 ] I will summarize chronologically the facts asserted in the evidence in the information to obtain that are relevant to the location of Mr. Diep's residence. [ 8 ] On August 30, 2008, Mr. Diep told the RCMP that he lived at #201, 2760 Cliffe Avenue: see paragraph 26. [ 9 ] On October 27, 2008, Mr. Diep told the RCMP that he lived at #210, 2760 Cliffe Avenue: see paragraph 27. [ 10 ] On October 20, 2011, a confidential informant, "A," told Corporal Douglas that Mr.

Diep lived in an apartment above the Subway restaurant on Cliffe Avenue in Courtenay: see paragraph 18(b). I think that could be a reasonable inference, although the affiant's failure to insert the last square bracket makes it somewhat ambiguous as to whether that was part of the tip information or a statement of the police officer. [ 11 ] Next, on May 5, 2012, RCMP Constable Slofstra observed that the building in which Mr. Diep was believed to be living was an apartment building on Cliffe Avenue: see paragraph 30. [ 12 ] In early November 2012, a confidential informant, "B," told Corporal Douglas that Mr.

Diep lives at 2760 Cliffe Avenue above the Subway restaurant. Corporal Douglas went to that location and noted that the address on the building in which Mr. Diep was believed to be living was 2760 Cliffe Avenue: see paragraph 21(d).

[13] On November 2, 2012, Constable Downey did a search based on the licence plate of a car that Informant "B" reported asbelonging to Mr. Diep. The search confirmed that Mr. Diep was the registered owner of the car but showed Mr. Diep's address as being#117, 2401 Cliffe Avenue. But police determined that this address was a shopping mall without any residential addresses: see paragraph32(e). [14] On November 2, 2012, Constable Downey searched CPIC for Mr. Diep's criminal record. During that search, he discovered thatMr. Diep was the subject of a prohibition order against possessing firearms.

The date of the prohibition order is not given. Mr. Diep'saddress is stated in the order to be #201, 2160 Cliffe Avenue: see paragraph 32(f). [15] Immediately after stating that last address in paragraph 32(f), Corporal Douglas adds this statement in brackets: "This isbelieved to be Diep's current address." [16] That is a

summary of the evidence in the information to obtain that is relevant to the issue. [17] On behalf of Mr. Diep, Mr. Neary argues that the evidence is not capable of objectively supporting the belief that Mr. Diep wasliving at #201, 2760 Cliffe Avenue.

He points out that the information to obtain contains evidence of four different addresses for Mr.Diep, three of which are different from the address of the place where Corporal Douglas states he believes cocaine will be found.Counsel further says that the one address for which Corporal Douglas sought the search warrant was acquired by information that wasmore than four years old. [18] Finally, defence counsel says that the judicial justice of the peace was faced with four different addresses with no way toexclude any of the other three except, perhaps, the address that was discovered by police to be a shopping mall. [19] Mr.

Neary referred me to a number of authorities to support his position that Mr. Diep's alleged criminal activity must beconnected to the place sought to be searched. I accept that Judge Palmer has correctly stated the preconditions for the lawful issuance ofa search warrant at paragraph 33 of his ruling in R. v. Phan on July 28, 2011, at Victoria. [20] I think it is common ground that an information to obtain must contain reasonable and probable grounds to support theconclusion that evidence of the targeted offence will be found at the place sought to be searched.

Counsel also agree that in this case, thatprecondition requires reasonable and probable grounds to believe that Mr. Diep was living at the place the police wanted to search,namely, Apartment #201, 2760 Cliffe Avenue. [21] That is where counsel

part company. Crown counsel submits that the evidence in the information to obtain does establish thenecessary reasonable and probable grounds for that conclusion. [22] Mr. Farenholtz took care in setting out the issue for a trial judge who is reviewing the sufficiency of evidence in an informationto obtain.

Counsel referred to several of the leading authorities and emphasized that the test is not whether the reviewing judge wouldhave issued the warrant but whether the issuing justice could have issued it. [23] I think I can fairly paraphrase Crown counsel's statement of the test as it applies to this case in this way. Could the evidence inthe information to obtain support the conclusion that there was a credibly based probability that evidence of the targeted offence wouldbe found at the place to be searched? [24] I accept that as being one way the test can properly be stated.

I consider that a credibly based probability is the same thing as areasonable probability. Also, in my opinion, to say that there was a reasonable probability that a disputed fact is true is equivalent tosaying that there are reasonable and probable grounds to believe that the fact is true. [25] Reasonable probability is the standard of proof that applies, and it requires proof to a degree of certainty that is more than amere suspicion but less than proof on the balance of probabilities: see R. v. Jir, 2010 BCCA 497 at paragraph 27. [26] I do not think there is any disagreement about the test on a review.

The decisive question is whether the evidence in theinformation to obtain is capable of supporting the conclusion that there was a reasonable probability that Mr. Diep was living at #201,2760 Cliffe Avenue on November 2, 2012. [27] The law presumes that a search warrant is valid. In this case, Mr. Diep bears the burden of demonstrating that the evidence inthe information to obtain is insufficient: see R. v. Campbell, 2011 SCC 32 , [2011] 2 S.C.R. 549 at paragraph 14. [28] Crown counsel acknowledges the different addresses for Mr.

Diep which appear in the information to obtain, but counsel saysthat one of those addresses was the address of the place that Corporal Douglas wanted to search, and that amounted to some evidencewhich could support the issuance of the warrant. Mr. Farenholtz says, in effect, that it was open to the issuing justice to conclude thatMr. Diep lived at #201, 2760 Cliffe Avenue. He argued that the justice was entitled to draw reasonable inferences from the facts stated inthe information to obtain, and he implied that the inference that Mr.

Diep lived at #201, 2760 Cliffe Avenue was a reasonable inferencewhich could be drawn notwithstanding the other competing inferences. [29] Crown counsel cited R. v. Nguyen, 2011 ONCA 465, to support his position, but I do not think it assists the Crown for a numberof reasons. For one thing, the error in an address in that case was said to be relatively meaningless, and also, it was said that the correctaddress was stated correctly in several other references.

In other words, there was only one misstatement of an address, and I refer toparagraph 33 of that judgment. [30] Crown counsel is right in saying that a justice of the peace can draw reasonable inferences: see R. v. Vu, 2011 BCCA 536 atparagraph 40. I think the question is whether it is a reasonable inference that Mr. Diep was living at the place sought to be searched.

I donot agree with Crown counsel when he says that if there is some evidence which, if believed, could support the necessary inference, thenthe justice of the peace can issue the warrant even if there is other evidence which seriously conflicts with the evidence relied on.

[ 31 ] The credibility of various pieces of conflicting information given by different persons which is contained in an information to obtain usually cannot be assessed with any significant degree of confidence by simply looking at the information to obtain. The test suggested by Crown counsel is the test on a no-evidence motion at the close of the Crown's case on a trial and is also the test at a preliminary inquiry on the issue of committal. [ 32 ] In my opinion, the issuing justice could have reasonably inferred that the shopping mall address for Mr. Diep was not his current address.

But I can see no basis on which the justice could reasonably choose Apartment #201, 2760 Cliffe Avenue and exclude the other two different addresses as being incorrect. The address chosen for the search was based on Mr. Diep's statement to the police over four years previously. A few years after he made that statement, Mr. Diep told the police he lived at #210, 2760 Cliffe Avenue. At the time the warrant was applied for, the information in the information to obtain shows that an undated prohibition order gave Mr. Diep's address as being #201, 2160 Cliffe Avenue.

Moreover, Corporal Douglas states his belief that he believes that last address to be Mr. Diep's current address. [ 33 ] In my view, that statement of the officer is significant because nowhere in the information to obtain does he expressly state that he believes Mr. Diep lives at #201, 2760 Cliffe Avenue. He only says, in paragraphs 5 and 33, that he believes cocaine will be found at that address.

Absent that statement of Corporal Douglas's belief, it might have been open to the justice to infer that 2160 was meant to be 2760, but that is not the situation here. [ 34 ] In these circumstances, it is difficult to see how the judicial justice of the peace could even reasonably conclude that Corporal Douglas subjectively believed that Mr. Diep was living in Apartment #201 at 2760 Cliffe Avenue. But assuming that Corporal Douglas did believe that Mr. Diep was living in Apartment #201, there was considerable evidence to the effect that Mr. Diep lived in an apartment building at 2760 Cliffe Avenue.

However, there is no evidence as to how many apartments there are, and there was no police surveillance which established that Mr. Diep was connected to that apartment building, let alone to any particular apartment in the building. [ 35 ] Even if it was open to the justice to infer that Mr. Diep was living in an apartment in the building at 2760 Cliffe Avenue, I see no difference in value between Mr. Diep's statement to the police on August 30, 2008, that he lived in Apartment #201 and his statement on October 27, 2008, that he lived in Apartment #210, each being different but each having equal weight.

The acceptance of one over the other could not be a reasonable inference, in my opinion. Even assuming the necessary subjective belief, there are no objectively reasonable and probable grounds to support it. [ 36 ] In my opinion, the defence has shown that the evidence in the information to obtain is not capable of supporting the conclusion that there was a reasonable probability that Mr. Diep was living at #201, 2760 Cliffe Avenue in Courtenay on November 2, 2012. That being so, the judicial justice of the peace could not have lawfully issued the search warrant which authorized a search of that residence.

The warrant must be set aside. That means that the search was conducted without judicial authority and was unreasonable. It is not suggested that the search was justified by any other law. [ 37 ] I conclude that the search was in violation of Mr. Diep's s. 8 Charter rights. “Halfyard J.”