R. v. Nguyen, 2013 BCSC 611

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nguyen, 2013 BCSC 611 Date: 20130107 Docket: 59435-2 Registry: Chilliwack Regina v. Thi Thuy Duong Nguyen and Huu Nghia Nguyen Before: The Honourable Mr. Justice Joyce Oral Reasons for Judgment Counsel for the Crown: J.M. LeDressayCounsel for the Accused: A.W. Alteen and L. DietzPlace and Dates of Trial: Chilliwack, B.C. October 29-30, 2012; and January 7, 2013Place and Date of Judgment: Chilliwack, B.C.

January 7, 2013 [1] THE COURT: The accused are charged with production of marihuana and possession of marihuana for the purpose oftrafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA]. [2] The charges arose as a result of a search of a residence on May 31, 2012; pursuant to a search warrant when the policediscovered a small marihuana grow operation in the basement of a home in Abbotsford occupied at the time by the accused. [3] On November 23, 2012, I ruled on a voir dire that the police lacked sufficient grounds to obtain the search warrant, set thewarrant aside and held that the search was in breach of the accuseds' rights under s. 8 of the Canadian Charter of Rights and Freedoms[Charter].

I also held that the accuseds' s. 9 Charter rights were breached when they were arrested at the time of the search. [4] This ruling is concerned with the issue of whether the evidence that was obtained in breach of the accuseds' Charter rightsshould be excluded under s. 24(2) of the Charter. [5] The framework for the analysis that I must apply in deciding this question was established in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 [Grant]. The Grant factors or avenues of enquiry are: 1. The seriousness of the Charter-infringing state conduct.

Admission may send the message the justice system condones seriousstate misconduct. 2. The impact of the breach on the Charter-protected interests of the accused. Admission may send the message that individualrights count for little. 3. Society's interest in the adjudication of a case on its merits. [6] With regard to the first avenue of enquiry, the Court made the following points: 1. The concern of this part of the enquiry is not to punish the police or to deter Charter breaches. The main concern is to preservepublic confidence in the rule of law and its processes. I take that from para. 73 of the decision. 2.

State conduct resulting in Charter violations varies in seriousness. Admission of evidence obtained through inadvertent or minorviolations of the Charter may minimally undermine public confidence in the rule of law. Admitting evidence obtained through a wilfulor reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law and risk bringingthe administration of justice into disrepute. I take that from para. 74 of the decision. 3.

Extenuating circumstances, such as the need to prevent the disappearance of evidence may attenuate the seriousness of policeconduct. Good faith on the part of the police will also reduce the need for the Court to disassociate itself from police conduct. However,ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with goodfaith. Deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence, and I take thatfrom para. 75 of the decision. 4.

Evidence that a Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[7] With regard to the second avenue of enquiry, the impact of the breach on the Charter-protected rights of the accused, the Courtmade the following points: 1. This enquiry requires an evaluation of the extent to which the breach actually undermined the interests protected by the rightinfringed. The more serious the impact on the accuseds' protected interests, the greater the risk that admission of the evidence may signalto the public that Charter rights are of little actual avail to the citizen, bringing the administration of justice into disrepute. 2.

For example, the interest engaged in the case of a statement obtained in breach of the Charter includes the s. 7 right to silence.The more serious the incursion on these interests the greater the risk that admission of the evidence would bring the administration ofjustice into disrepute. 3. Similarly, a breach of s. 8 of the Charter may impact on protected interests of privacy.

An unreasonable search that intrudes onan area in which the individual reasonably enjoys a high expectation of privacy or that demeans his or her dignity is more serious thanone that does not. [8] The third avenue of enquiry requires an assessment of whether the truth-seeking function of the criminal trial process would bebetter served by admission of the evidence or by its exclusion. Factors to consider are the reliability of the evidence in question, theimportance of the evidence to the prosecution's case, and the seriousness of the case.

At issue is the long-term repute of the justicesystem, not the narrow interest of a few in a conviction in a particular case. [9] In R. v. Côté, 2011 SCC 46 , [2011] 3 S.C.R. 215 [Côté] the Court reinforced the notion that s. 24(2) is generallyconcerned with "whether the overall repute of the justice system viewed in the long term will be adversely affected by admission of theevidence".

The Court there is citing Grant, at para. 68. [10] The Court must ultimately balance the assessments under each of the three lines of enquiry and determine based on all of thecircumstances whether the admission of the evidence would bring the administration of justice into disrepute. As Mr. Justice Cromwellstated at para. 48 of Côté: [48] ... There is no "overarching rule" that governs how a court must strike this balance (Grant, at para. 86).

Rather, "[t]he evidenceon each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of theevidence would bring the administration of justice into disrepute" (R. v. Harrison, 2008 ONCA 85, 89 O.R. (3d) 161, at para. 36). Noone consideration should be permitted to consistently trump other considerations.

For instance, as this Court explained in Harrison, theseriousness of the offence and the reliability of the evidence should not be permitted to "overwhelm" the s. 24(2) analysis because this"would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under theCharter and, in effect, declare that in the administration of the criminal law 'the ends justify the means’”(para. 40, citing 2008 ONCA 85,89 O.R. (3d) 161, at para. 150, per Cronk J.A., dissenting). [11] In all cases, courts must assess the long-term repute of the administration of justice. [12] Applying the Grant analysis to the case at bar, with regard to the first line of enquiry, I would assess the seriousness of thepolice conduct at the lower end of the scale.

The police did not act in a manner that was flagrant, deliberate, or in wilful disregard of theaccuseds' privacy rights under s. 8 of the Charter. [13] They proceeded by obtaining a search warrant. However, I ultimately found that the warrant was not justified based on theInformation to Obtain ("ITO"). The police were experienced officers who had particular experience in the investigation of drug offences,but I found that they were deficient in their investigation of and reporting of the odour of marihuana.

The Information was deficient inthat it did not reliably associate the odour of marihuana to the residence in question. [14] In my view, however, the police conduct, while not flagrant or deliberate, was more than mere inadvertence.

The investigationfailed to come up to Charter standards insofar as the warrant was based substantially or heavily on the detection of the odour ofmarihuana. [15] I also found that the inclusion in the ITO of information concerning the accuseds' association with a previous investigation intoa marihuana grow operation was objectionable on the grounds of its prejudice to the accused, but I am not satisfied that the informationwas included in the ITO with an intention to mislead.

I am not satisfied that the police engaged in a pattern of abuse resulting in theobtaining of the evidence such as to raise the level of seriousness on that basis. [16] The police conduct in this case cannot be said to be so serious that it strongly supports the exclusion of evidence on that basis.On the other hand, the substandard efforts of the police that resulted in the warrant being set aside should not be rewarded orencouraged.

For these reasons, I would assess the seriousness of the police conduct at the lower end of the spectrum of seriousness andthat end of the scale would favour admissibility. [17] With regard to the second avenue of enquiry, I find that the impact of the breach on the accuseds' Charter-protected rights is atthe very high end of the scale, strongly favouring exclusion of the evidence. [18] The accused were removed from their home in the early morning, dressed in their bedclothes, and made to stand in front of theirhome while their home was searched, all without lawful justification. [19] Citizens are entitled to a very high expectation of privacy with respect to their homes.

They are entitled to expect and theCharter is there to protect the right to be free from intrusion into and a search of their home unless it is justified either by a valid searchwarrant or other lawful reason. Inclusion of evidence obtained in breach of such an important Charter-protected privacy interest creates aserious risk of bringing the administration of justice into disrepute. [20] As for the third part of the analysis, the impugned evidence is reliable and it is crucial to the Crown's case. The production of

marihuana in residential premises is hardly an insignificant or inconsequential crime. Depending on the particular nature of the operation, it may create serious risks of fire as well as criminal activity on the part of those who may seek to engage in what is commonly termed a "grow rip".

These other criminal activities are certainly in addition to the fundamental offence which is created by Parliament. [ 21 ] This particular grow operation I would describe as relatively small and certainly far from the most serious example of the offence of production of marihuana or possession of marihuana for the purpose of trafficking. [ 22 ] As C ôt é made clear, the reliability of the evidence and its importance to the truth-finding function must not overwhelm a s. 24(2) analysis for fear that the Charter protections over time may give way to the proposition that the end justifies the means.

The long-term effect on the public confidence in the rule of law and the administration of justice is key. [ 23 ] I must put my assessments with regard to the three avenues of enquiry into the balance to decide whether the scale is tipped in favour of or against the exclusion of the evidence. [ 24 ] My assessment under the first avenue of enquiry would tend to support inclusion. My assessment under the second avenue of enquiry strongly supports exclusion. My assessment under the third avenue is somewhat nearer the middle of the scale.

These assessments cannot be determined with perfect precision and no one factor will trump another. It is an overall balancing of the factors to decide whether inclusion of the evidence would bring the administration of justice into disrepute. [ 25 ] Amongst the several cases referred to by Crown and defence which provided examples of s. 24(2) at work but really add nothing to the fundamental principles laid down in Grant , Crown counsel referred me to R. v.

Blake , 2010 ONCA 1 [ Blake ] , in which the Court upheld the trial judge's decision to include evidence discovered as a result of s. 8 breach concerning the accused's residence notwithstanding the impact on the accused's privacy rights. [ 26 ] In that case, the police had obtained a search warrant, but the validity of the warrant was challenged. In seeking to uphold the validity of the warrant the Crown relied solely on a version of the ITO had been redacted to protect the identity of confidential sources. The trial judge found that the redacted ITO could not support the warrant.

However, the trial judge made a finding that the police acted in good faith which the Court of Appeal accepted. There was no suggestion of negligence or ignorance of any applicable Charter requirements. [ 27 ] The first avenue of enquiry therefore militated in favour of inclusion. The Court also held that society's interest in an adjudication on the merits, in this case possession of cocaine for the purpose of trafficking, militated in favour of admission.

As to the second avenue of enquiry, the Court held that the impact of the breach on the accused's privacy rights strongly pointed towards exclusion. [ 28 ] The Court in that case found compelling the argument that exclusion of reliable, crucial evidence in circumstances where the propriety of the police conduct stands unchallenged would, viewed reasonably and from a long-term perspective, have a negative effect on the repute of the administration of justice.

That is found at para. 32 of the judgment. [ 29 ] The Court went on to say that: "If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests" ( Blake , at para. 33 ). [ 30 ] That distinction drawn in Blake is a distinction I see in this case.

Conduct of the police in this case while not particularly egregious is not free of disapproval as it was in Blake . [ 31 ] When I put my assessments on the balance scale, I find that it tips towards the conclusion that inclusion of the evidence viewed reasonably and from a long-term perspective would have a negative effect on the repute of the administration of justice. [ 32 ] I, therefore, exclude the evidence discovered as a result of the s. 8 and s. 9 Charter breaches. “B.M. Joyce J.”