R. v. Wong, 2017 BCSC 1170

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Wong, 2017 BCSC 1170 Date: 20170707 Docket: 26748-3 Registry: Vancouver Regina v. Shu Tshung Wong Before: The Honourable Mr. Justice Kent Reasons for Judgment ( Voir dire #4 – Arrest, Incidental Search, Access to Counsel) Counsel for the Crown: Shannon D. Gerrie Leslie P. LeClair Counsel for the Accused Shu Tshung Richard Wong: Neil L. Cobb Julia Hung Counsel for the Accused Lena Truong: D. Isaac Ferbey Place and Dates of Hearing: Vancouver, B.C. February 14–17, June 19, 21–22, 2017 Place and Date of Judgment: Vancouver, B.C.

July 7, 2017 Table of Contents INTRODUCTION .. 3 Arrests Without Warrant .. 4 Applicable Legal Principles . 4 Arrest of Mr. Wong . 7 Arrest of Ms. Truong . 16 Search Incidental to Arrests .. 19 Right to Counsel .. 24

Summary and Conclusion .. 31 INTRODUCTION [ 1 ] The accused are charged with seven offences arising from the discovery of a methamphetamine lab and a loaded firearm at 2906 East 15th Avenue, Vancouver B.C., on June 15, 2012. On that date the Vancouver Police Department ("VPD"), together with members of the RCMP Clandestine Lab Team searched the premises pursuant to a search warrant issued under s. 11 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the " CDSA ").

The two accused were the occupants of the house and had been under investigation by the police for several months before the execution of the warrant. [ 2 ] The search warrant was issued on June 14, 2012. An "operations plan" was devised by the police in respect of the search. It contemplated arresting the two accused and detaining them in custody before the search was carried out. They were in fact arrested shortly after 11:00 p.m. on June 14, 2012.

Search incident to the arrests resulted in the seizure of various items including two cell phones which were extensively examined by technical experts at a later date. Both accused were then detained in jail for some 15 hours before being released from custody at approximately 2:30 p.m. on June 15, 2012.

[ 3 ] Both accused assert various breaches of the Canadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the " Charter "). They seek orders excluding from trial certain evidence proposed to be adduced by the Crown and/or a judicial stay of proceedings. Various voir dire s have been held in respect of the alleged Charter breaches. [ 4 ] This is voir dire #4.

The accused seek a declaration that: 1. there were insufficient grounds to justify their arrest on the evening of June 14, 2012 and their s. 9 Charter rights not to be arbitrarily detained or imprisoned have been violated; 2. by virtue of their arrest being unlawful, the search purportedly incidental to that arrest, including the extensive search of the cell phones, violated their s. 8 Charter rights to be secure against unreasonable search or seizure; and 3. following their arrest, the accused were denied the right to retain and instruct counsel without delay in violation of s. 10(

b) of the Charter . Arrests Without Warrant Applicable Legal Principles [ 5 ] Sections 7 and 9 of the Charter read: Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. ... Detention or imprisonment 9.

Everyone has the right not to be arbitrarily detained or imprisoned. [ 6 ] While the burden is on the accused to establish on a balance of probabilities that a violation of their Charter rights has occurred, the mere fact that the arrests of the accused were effected without a warrant establishes a prima facie case of arbitrary detention and the onus shifts to the Crown to prove the lawfulness of the arrests. The standard of proof is the same, i.e. , the lawfulness of the arrests must be proved on a balance of probabilities. [ 7 ] Section 495(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46 ("the Code "), permits a peace officer to arrest without warrant a person who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence. With respect to the requirement of "reasonable grounds to believe" the relevant law can be summarised as: 1. The "reasonable grounds to believe" standard requires something more than mere suspicion; it is a standard of "reasonable probability".

It is not equated with the "proof beyond a reasonable doubt" standard, or even the requirement of a " prima facie case." Indeed, it is a standard less than that applicable in civil cases, namely, proof on the balance of probabilities. The phrase "reasonable belief" approximates what is required and envisions a practical, non-technical, common-sense assessment of the totality of the circumstances at the time the arrest decision was made. 2. The arresting officer's subjective belief that he or she has the requisite reasonable grounds is insufficient by itself for an arrest under s. 495(1) (

a) of the Code to be lawful. Those grounds must also be justifiable from an objective point of view. 3. Determining whether the arresting officer's grounds for belief were objectively reasonable involves an assessment of the factual matrix existing at the time the arrest was made. Whether other information, had it been available, might have strengthened or weakened those grounds is not a relevant consideration. 4. A police officer's training and experience can play an important role in assessing whether the reasonable belief standard has been met. Police officers are trained to detect criminal activity.

That is their job. They do it every day. Matters which may have no significance to the layperson may attract considerable significance in the eyes of a trained and experienced police officer. 5. The assessment of whether objectively reasonable grounds for arrest existed involves placing a reasonable person in the position of the officer and having that person assess the circumstances through the lens of someone who has the same experience, training, knowledge and skills as the officer.

If that reasonable person would reach the same conclusion as the police officer, then the grounds for arrest will be considered to be objectively reasonable. 6. The expertise and experience of a police officer must never be an excuse for arbitrary arrest, even if the subsequent search of an accused uncovers evidence of a crime. The fact that incriminating evidence is subsequently found will not give any more substance to the officer's grounds for belief.

Something in the pre-arrest circumstances observed or learned by the officer, placed in appropriate context, must lend objective justification or verification to the officer's belief. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer's subjective perceptions. Where the police officer has nothing but hunch or suspicion and no legal way to obtain other evidence, it follows that the officer must leave the suspect alone and not charge ahead to obtain evidence illegally or unconstitutionally.

7. To the extent that the pre-arrest circumstances involved reliance on a tip, whether from a confidential informant or from ananonymous person, the court must consider a variety of factors including: the degree of detail provided by the tipster; information as tothe tipster's source of knowledge; and indicia of the tipster's reliability, including confirmation of some of the information provided. Inthat regard, weakness in any one area may be compensated for by strengths in other areas. See R. v. Debot, (SCC), [1989] 2 S.C.R. 1140; R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241; R. v.Garofoli, (SCC), [1990] 2 S.C.R. 1421; R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3; R. v. Luong, 2010BCCA 158; R. v. Jir, 2010 BCCA 497; R. v. Chehil, 2013 SCC 49; R. v. MacKenzie, 2013 SCC 50; and R. v. Wu, 2015 ONCA 667. [8] Voir dire #3 addressed the validity of: (

i) warrantless searches and seizures of garbage at or near the accused's residence andelsewhere; (ii) ion swabbing of the door handles of Mr. Wong's vehicle in May 2012; (iii) covert and warrantless video surveillance ofthe backyard and rear of the accused's residence in June 2012; and (iv) the search warrant respecting that residence issued June 14, 2012and executed the following day. In reasons indexed at 2017 BCSC 306, I determined that the search of the accused's garbage did notamount to a breach of s. 8 of the Charter. However, I also held that the warrantless swabbing of Mr.

Wong's vehicle and the covertcamera surveillance of the accused's backyard amounted to unreasonable search and seizure within the meaning of s. 8 of the Charterand that the accused's Charter rights had been breached in that regard. [9] The search warrant for the residence was issued pursuant to s. 11 of the CDSA based on reasonable grounds to believe thatevidence respecting offences under the CDSA could be found in the residence. The 'Information on Oath' ("ITO") for that warrant wasprovided by Det. Cst. Munro. That ITO contained various deficiencies which were either excised or disregarded in the warrant review.

However I held that there was "nevertheless more than sufficient reliable information remaining [in the ITO] upon which the searchwarrant in this case could have been issued" (para. 87). In other words, I held that, in effect, Det. Cst. Munro did indeed have sufficient"reasonable grounds to believe" that evidence respecting an offence under the CDSA could be found in the accused's residence. [10] Det. Cst. Monroe was not the individual who effected or directed the arrest of the accused in this case. Rather, Mr. Wong wasarrested by Det. Cst. Griffiths and Ms. Truong was arrested by Det. Cst. Young.

The arrests were carried out at the direction of the 'leadinvestigator' on the file, Det. Cst. Smart. The parties agree that the lawfulness of the arrests in this case hinge on the determination ofwhether Det. Cst. Smart had "reasonable grounds to believe" the accused committed or were about to commit an indictable offence,namely the production of methamphetamine in the East 15th Avenue residence. [11] The findings in voir dire #3 do not necessarily validate the existence of reasonable belief on the part of Det. Cst. Smart. It doesnot necessarily follow that all of the information of Det. Cst.

Munro had been shared with Det. Cst. Smart. An independent analysis ofDet. Cst. Smart's grounds for belief is required, bearing in mind that the onus for justifying the warrantless arrests in this case lays withthe Crown and not with the accused. Arrest of Mr. Wong [12] Det. Cst. Smart has been a member of the VPD since 2002. He joined the drug squad in 2009 and in 2010 he attended a two-week RCMP course in Ottawa respecting clandestine laboratories and the manufacture of illicit drugs, including methamphetamine.

Hehas since received ongoing training and certification from the RCMP on such matters. [13] On March 29, 2012 Det. Cst. Smart was assigned by Sgt. Stadler as the 'lead investigator' and 'file coordinator' for amethamphetamine manufacturing investigation which came to be known as "Project Tent". As lead investigator he was in charge of the"flow and direction" of the investigation. His role as file coordinator related to the collection and maintenance of evidence. [14] Det. Cst. Munro was assigned to the role of "affiant" for the project.

In that role, she was tasked with preparing the ITOsrequired to obtain the various warrants deemed necessary to advance the investigation of Project Tent. [15] Project Tent originated from a tip a confidential informant provided to Det. Cst. Stephens to the effect that an Asian male called"Ricky Wong" was "cooking meth". The confidential informant had provided a cell phone number associated with this person and alsoadvised the type of car he was driving. After speaking with Det. Cst. Stephens, Det. Cst.

Smart conducted various CPIC and other policefile checks and learned: • Richard Wong was a name associated with a person called Shu Tshung Wong; • Mr. Wong had a criminal record arising from a conviction in Winnipeg for Possession for the Purposes of Trafficking incontrolled substances for which he was sentenced to five years in jail and in respect of which he was released from custody in 2006; • Mr. Wong was the owner of a white Toyota Echo motor vehicle, bearing licence plate 178 JSW, and registered to him at anaddress of 3161 East 22nd Avenue; • Mr.

Wong also had a B.C. driver's licence showing the same address; and • Mr. Wong was associated with a certain Ms. Lena Truong, who was believed to be the former's girlfriend. [16] Det. Cst. Smart prepared a "Target Sheet" for both Mr. Wong and Ms. Truong to enable police surveillance of their activities. He obtained copies of Mr. Wong's arrest photographs from the Winnipeg police, as well as his passport photograph from PassportCanada. For the purposes of Ms. Truong's Target Sheet, he used photographs taken in respect of her previous arrest by the Delta PoliceDepartment.

These target sheets were duplicated and distributed to all members of the surveillance team, all of whom were required tosign a "Master Target Sheet" confirming receipt and review of the information in question. [17] The Project Tent team conducted some 31 days of surveillance of Mr. Wong and Ms. Truong. A "Surveillance Report" wasprepared for each period of surveillance. Each report was compiled in the office by a scribe and reflected the information broadcasted by

the surveillance members. The various observations in each report were reviewed by each member of the surveillance team who then initialled each of their respective observations to verify its accuracy and attached their signature to the end of each report. [ 18 ] Det. Cst. Smart was himself involved in the surveillance activity on various days. He also reviewed all of the Surveillance Reports. [ 19 ] The surveillance started at the address on East 22nd Avenue where Mr. Wong and his vehicle were located and identified.

This surveillance quickly led to the discovery of a second address in the same neighbourhood at which Mr. Wong and Ms. Truong were living, namely 2906 East 15th Avenue. This was a two-story single-family dwelling with a small rear yard, a detached garage and a vehicle tent in the rear driveway. [ 20 ] On April 20, 2012, a warrant was obtained by Det. Cst. Munro authorizing the installation and monitoring of a tracking device on Mr. Wong's vehicle for the period of April 21, 2012 to June 19, 2012. [ 21 ] On May 8, 2012, Det. Cst.

Smart retrieved some garbage left for garbage pickup in the back lane of the East 15th Avenue premises. Various items of the garbage were subjected to ion scanning by Det. Cst. Smart, who had been trained on the use of such a device. Trace amounts of cocaine, heroin and methamphetamine were detected. [ 22 ] On May 17, 2012, Mr. Wong and Ms. Truong were observed driving from their residence on East 15th Avenue to a Fido store at 6596 Victoria Drive. Mr. Wong, who was wearing gloves at the time, removed a black garbage bag from the trunk of his vehicle and deposited it in a dumpster at the rear of the Fido store.

The garbage bag was retrieved and retained by the police shortly thereafter. The contents included a piece of flexible aluminum "venting hose" and a quantity of carbon pellets. There was also a strong chemical odour emanating from the bag. Ion scanning was again performed by Det. Cst. Smart and trace particles of heroin, cocaine and methamphetamine were found on the bag and the vent hose. [ 23 ] On May 22, 2012, Det. Cst. Smart met with a representative from Health Canada to test the carbon pellets retrieved from the garbage bags which had been recovered from the dumpster behind the Fido store.

Testing of the pellets revealed results that could be consistent with the presence of nitric acid, which Det. Cst. Smart determined via internet research to be a possible ingredient in the manufacture of methamphetamine. [ 24 ] On May 30, 2012 two other detectives from the Project Tent team recovered three bags of garbage from the bin in the back lane of the East 15th Avenue premises. One of the bags was found to contain some tile, silver ducting, and two pairs of latex gloves.

Ion scanning revealed the presence of methamphetamine on all three bags as well as the gloves. [ 25 ] On June 1, 2012, a video camera was installed on a utility pole in the alleyway behind the accused's residence, angled so that it could record a view of the backyard, the tent garage, and the rear of the house. A network video recorder was installed approximately two blocks away. Video of the backyard and any activities in that area was then taken continuously from June 6, 2012 until the day of the equipment's removal on June 26, 2012.

Another detective constable on the project team was assigned the task of reviewing the video footage and preparing a log of noteworthy observations. Det. Cst. Smart reviewed these logs, noting that on various occasions Mr. Wong moved items from his vehicle into the garage and/or from the garage into the rear entrance to the residence. Among other things, the items included a large white bucket capable of holding several litres of liquid. [ 26 ] On June 5, 2012, the surveillance team observed Mr.

Wong attending a Home Depot store in Burnaby where he purchased two cans of a solvent/cleaning product known as "Xylene". From his training, Det. Cst. Smart was aware that Xylene was capable of being used as a finishing product in the final stages of methamphetamine production. [ 27 ] On June 7, 2012 the GPS tracking device installed on Mr. Wong's vehicle indicated his attendance at a Home Depot on Henning Drive in Burnaby. Det. Cst. Frail attended that store and reviewed security video footage showing Mr. Wong purchasing three cans of Xylene.

She confirmed the purchase by reviewing the checkout transaction records at the store and viewing Xylene on the shelf at the same location where the video footage depicted Mr. Wong's attendance. [ 28 ] On May 25, 2012, Ms. Truong was observed by the surveillance team exiting the residence on East 15th Avenue, walking a block away, entering a vehicle which then circled the block, exiting the vehicle and returning to the residence. Det. Cst. Smart formed the opinion, based on his experience as a police officer familiar with drug transactions, that these actions of Ms.

Truong were consistent with drug-trafficking activities. [ 29 ] On May 29, 2012, the surveillance team observed Ms. Truong entering a white minivan a block away from the East 15th Avenue premises. The van drove a short distance to a nearby pizza restaurant and returned to the area of the residence some 23 minutes later. Det. Cst. Smart again formed the opinion that this activity was similar to the May 25, 2012 occurrence and was consistent with drug trafficking on the part of Ms. Truong. [ 30 ] By June 12, 2012 Det. Cst.

Smart had formed the belief that: (1) crystal methamphetamine was being manufactured at the East 15th Avenue premises; (2) both Mr. Wong and Ms. Truong were "involved" in that manufacture; and (3) both were therefore "arrestable" in that regard. He listed the various factors grounding his belief that both accused were arrestable including: • the tip from a confidential informant considered to be reliable identifying Mr. Wong as a methamphetamine cook; • corroboration of the information provided respecting phone numbers, ownership of the vehicle, and identity of Mr.

Wong's girlfriend; • discovery of a criminal record for drug-related offences on the part of both Mr. Wong and Ms. Truong; • both accused were living at the East 15th Avenue premises and each had access and control of the property, as confirmed by both the police and video surveillance;

• testing of the garbage discarded at the rear of the premises on two separate occasions revealed the presence of methamphetamine on the garbage bags and their contents; • discarding garbage in a dumpster by Mr. Wong who was wearing gloves and who was accompanied by Ms. Truong, the contents of which tested positive for the presence of methamphetamine and which also included carbon pellets and flexible vent hosing of a sort that could be used to remove odour associated with drug manufacturing; • Mr.

Wong's attendance at various Home Depot stores and his purchase on two occasions of cans of solvent; • observations of Mr. Wong carrying various items, including a large bucket, from car to garage to house; • Ms. Truong's 'meetings' in vehicles a short distance from the house, which were considered to be consistent with drug activity; and • the absence of any obvious employment on the part of either Mr. Wong or Ms. Truong. [ 31 ] On June 13, 2012, Det. Cst. Smart drafted an "Operations Plan" in the form of a memo to, and for the approval of, Insp. Cumberworth of the VPD.

The memo indicated that an ITO to support a CDSA search warrant for the East 15th Avenue premises was being compiled and it was anticipated that the warrant would be executed on June 15, 2012. The anticipated charges were said to include Possession for the Purpose of Trafficking, Possession of a Controlled Substance, and "potentially" Production of a Controlled Substance. [ 32 ] The memo focused on the activities and observations by the police of Mr. Wong. Ms. Truong's name appeared only once in the document in the

section identifying as one "objective of the mission" the "lawful obtaining of evidence for criminal charges against Wong and/or Truong".

Among other things, the memo states: • source information had been received indicating Wong was actively cooking meth in a clandestine lab at the East 15th Avenue premises; • Wong had previously been convicted of drug offences for which he had received a five-year sentence; • "follow-up investigation" had led investigators to believe that Wong was operating a clandestine lab at the premises; • Wong's vehicle had attended several hardware stores where he "has been purchasing large amounts of solvents and other construction items consistent with building and running a [clandestine] lab"; • covert video footage had shown Wong unloading items into the garage on the property and at later times bringing items to and from the residence in bags; • garbage seized from outside the residence "did not have apparent evidence of a [clandestine] lab but ion scan of several items tested moderate to high for meth"; • Wong was also noted to have dumped garbage in a commercial dumpster some distance from his residence, which garbage "contained a large amount of carbon pellets and a short length of flexible vent hose" and which garbage bags and pipe "tested high for meth" and "an initial analysis of the pellets by Health Canada indicated presence of acid with properties consistent with nitric acid, not commonly found in the home but identified as used in clan labs". [ 33 ] The Operations Plan contemplated that drug squad members would conduct daytime surveillance of Mr.

Wong the day before the warrant would be executed and that "if the opportunity presents itself, Wong will be arrested when he leaves the residence and [held pending investigation] until the warrant is executed". [ 34 ] The Operations Plan was approved on June 14, 2012. The CDSA search warrant was also issued that day authorizing a search of the premises between the hours of 5:00 a.m. on June 15, 2012 until 11:59 p.m. on June 15, 2012. [ 35 ] Det. Cst. Griffiths and Det. Cst. Young were partners on the surveillance of the East 15th Avenue premises on the evening of June 14, 2012. Det. Cst. Griffiths observed Mr.

Wong departing the residence at approximately 10:40 p.m. and heading towards the Skytrain station at 29th Street Avenue. Ms. Truong was observed emerging from the Skytrain station and getting into Mr. Wong's vehicle which then made a U-turn. Det. Cst. Smart had authorized the arrest of both Mr. Wong and Ms. Truong for the CDSA offence of "Production of a Controlled Substance". At approximately 11:00 p.m., Det. Cst. Griffiths initiated a "traffic stop" of the Wong vehicle and after requesting Mr. Wong to step out of his vehicle, Det. Cst. Griffiths formally arrested Mr. Wong for the production offence. [ 36 ] Det.

Cst. Young effected the arrest of Ms. Truong. She too advised Ms. Truong that she was under arrest for the offence of producing a controlled substance. Upon performing a pat-down incidental to the arrest, Det. Cst. Young discovered a "small dime baggy" of a substance that appeared to be crystal methamphetamine in the pocket of Ms. Truong's jacket, and so Det. Cst. Young also thereupon formally arrested Ms. Truong for the CDSA offence of possession of a controlled substance. [ 37 ] Mr. Wong challenges the credibility of Det. Cst. Smart. He submits Det. Cst.

Smart exaggerated his grounds for belief and was simply engaging in unreasonable speculation as to the existence of a methamphetamine lab. He failed to take notes of certain steps in the investigation. He failed to consider exculpatory, neutral or equivocal information including: (

i) Ms. Truong was a known user of methamphetamine, hence explaining her street meetings and the presence of the drug on garbage; (ii) Xylene, a common paint thinner, was the only chemical actually observed; and (iii) there was no objective indicator of the presence of a methamphetamine lab such as odours, the sound of fans, covered windows and the like. [ 38 ] Mr. Wong also submits that it is the (illegal) video surveillance depicting the to-and-fro garage activity which was considered the most significant foundational factor for Det. Cst. Smart's subjective belief that a methamphetamine lab operation was underway.

Once that illegally and unconstitutionally obtained evidence is excised or disregarded, as Mr. Wong submits it must be, there is no credibly-based probability to sustain any belief that Mr. Wong was committing the offences in question. [ 39 ] I do not agree with the submissions. I find that Det. Cst.

Smart has neither lied nor provided the Court with an ex post facto reconstruction of the grounds on which he believed the two accused to be "arrestable". [ 40 ] In my view, a practical, non-technical and common-sense assessment of the cumulative effect of the factors identified in para. [30] above, viewed through the lens of a reasonable person with the same experience, training and knowledge as Det. Cst. Smart, would reach the same conclusion, i.e. , that objectively reasonable grounds existed for the arrest of Mr.

Wong for the production of methamphetamine. [ 41 ] I acknowledge that many of the points raised by Mr. Wong might raise reasonable doubt respecting the commission of the alleged offences if the evidence at trial were limited to the pre-arrest circumstances observed or referred to by Det. Cst. Smart in this voir dire . But that, of course, is not the standard nor, indeed, is the standard proof beyond a reasonable doubt or the requirement of a prima facie case.

The "reasonable grounds to believe" standard requires more than simply hunches or suspicion, whether based on police officer experience or otherwise and sufficient objective justification or verification for the officer's belief is required. [ 42 ] I rather doubt that excision or disregarding the evidence respecting the video surveillance is required for the present analysis. This is not a review of an ITO but, rather, a determination of whether Det. Cst. Smart held a subjective belief that was objectively reasonable.

In any event, even after excising or disregarding any evidence respecting the warrantless video surveillance, the cumulative effect of the tip received from a reliable informant, the criminal records for drug-related offences, the presence on three separate occasions of methamphetamine on items originating from the house, the discovery of carbon pellets, vent hose, gloves and chemical fumes in/from garbage discarded in a distant dumpster, the glove-handed dumping of that garbage, and the purchase of several cans of a known solvent, all powerfully combine to yield an objectively reasonable belief that methamphetamine production was occurring at the East 15th Avenue premises and that Mr.

Wong was actively involved in same. Accordingly, I find that the arrest of Mr. Wong for the offence of production of a controlled substance contrary to the provisions of the CDSA was lawful and did not contravene his rights under s. 7 or 9 of the Charter . Arrest of Ms. Truong [ 43 ] Det. Cst. Smart's grounds for arresting Ms. Truong are undeniably weaker than his grounds for the arrest of Mr. Wong. He had no knowledge of, nor any evidence to the effect that, Ms. Truong was the person actually producing, i.e. , "cooking", the methamphetamine in the East 15th Avenue premises.

The tip from the confidential informant identified Mr. Wong as the "cook" and Ms. Truong was (vaguely) identified as Mr. Wong's girlfriend. The "Operations Plan" for the raid prepared by Det. Cst. Smart on June 13, 2012 for the raid on the East 15th Avenue premises identifies only Mr. Wong as the person "actively cooking meth" and was completely silent about any activities on the part of Ms. Truong. It was only Mr.

Wong who was seen purchasing supplies from hardware stores and who was seen discarding methamphetamine-contaminated garbage and moving items into and from the detached garage at the rear of the property. [ 44 ] Det. Cst. Smart testified that he believed both Mr. Wong and Ms. Truong were "involved" in the production of methamphetamine at the East 15th Avenue premises and that both were "arrestable" on that account. The factors he identified as substantiating Ms.

Truong's "involvement" in the production activity included: • the conclusion based on the evidence set out above that methamphetamine was actually being produced in the house; • that Ms. Truong had control over the premises as evidenced by the fact that Ms. Truong was living in the house, was seen entering and leaving the premises on various occasions (including locking the door with the key; • the household garbage from the house, including food containers, tested positive for the presence of methamphetamine and other drugs; • on at least two occasions Ms.

Truong was seen leaving the residence and entering a vehicle some distance away, circling the block/going to a nearby restaurant, exiting the vehicle, again some distance away from the residence, and returning to the house, activities which Det. Cst. Smart considered to be consistent with drug-trafficking transactions and also a desire to keep the precise location of the house confidential; • the fact Ms. Truong accompanied Mr. Wong on at least one visit to the hardware store and to the Fido store dumpster in which Mr.

Wong discarded methamphetamine-contaminated items consistent with the presence of a methamphetamine lab (gloves, hose, carbon pellets, et cetera ); and • the fact that Ms. Truong appeared not to have any obvious employment. None of these factors corroborate or even suggest that Ms. Truong was directly involved in "cooking" methamphetamine at the East 15th Avenue premises. They suggest only that methamphetamine-production activity was taking place inside the house, that Ms.

Truong must have been aware of it, and that she might have been involved in street-level drug transactions on two occasions. [ 45 ] For sure, even if Ms. Truong was not herself actually producing methamphetamine in the residence, she can be guilty of that offence pursuant to s. 21 of the Criminal Code if she aids (assists) or abets (encourages) any other person, i.e. Mr. Wong, to commit that offence. When Det. Cst. Smart expresses the subjective belief that Ms. Truong was "involved" in the production, there is little doubt he is suggesting that Mr. Wong and Ms.

Truong had a common intention to produce methamphetamine in the house and that Ms. Truong was somehow assisting in that production. [ 46 ] The inference of knowledge on Ms. Truong's part about methamphetamine production in the East 15th Avenue premises is very

strong, particularly when one makes a practical, non-technical, common-sense assessment of the totality of the circumstances. But mereknowledge that, and mere presence when, another person is producing methamphetamine in a house both occupy does not, without more,constitute aiding or abetting that production. [47] The law in this area is discussed in R. v. Ngo, 2009 BCCA 301 at paras. 52–53: As previously noted, in Powell, Esson J.A. held that possession is not an included offence in cultivation, and that the gravamen of theoffence of cultivation is active participation in the growing of prohibited plants.

See also Vu (S.V.), at para. 27. However, an individualmay be found guilty of production as either a principal, or as a party who aids or abets the principal: Hubble, at paras. 10, 15; CriminalCode s. 21. In a grow op case, an accused may be found to have aided or abetted in the production of marijuana by maintaining theenvironment in which the marijuana is produced, with the purpose or intent to assist in the crime. The Crown may prove the essential elements of an offence through direct or circumstantial evidence, or a combination of both.

Wherethe case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is theonly reasonable inference to be drawn from the facts ... [48] In Ngo the accused resided in a home where a large grow operation was being undertaken in the basement.

The trial judgefound that at the very least, the accused must have known of the grow operation being carried on within the home and that he wouldhave been a party to the production offence by aiding the production whether by lending a "veneer of normalcy" to allay suspiciousneighbourhoods, a monitoring capability should anything unexpected occur, or a form of security by preventing someone breaking andentering. The court concluded, "[T]here really is no discernible reason for Mr.

Ngo to live in that home except as someone who wasinvolved in assisting in some way in the growing of that marijuana." [49] The Court of Appeal declined to interfere with the decision of the trial judge.

In doing so it acknowledged that his findings weresupported by the Crown's expert evidence about the manner in which persons who "occupy" a marijuana grow operation house are in aposition to provide assistance to the grower including the very factors relied on by the trial judge – "veneer of normalcy", providingaccess to those involved in actively tending the plants, monitoring capability in the event of equipment malfunction, providing a measureof security. [50] In R. v.

Serban, 2017 BCSC 16, a husband and wife were charged with the unlawful production of marijuana and possession ofsame for the purposes of trafficking when a large-scale grow operation was found in the basement of their residence in Maple Ridge. The husband effectively admitted liability for the offences but the wife contended the charges against her had not been proved beyond areasonable doubt.

The court declined to convict, holding: • Ngo was distinguishable because the accused did not testify and there was no expert evidence tendered in Serban similar to theevidence adduced in Ngo ... hence to draw similar inferences in the Serban case "would be based on speculation, not evidence"(para. 33); • Ms.

Serban had obvious reasons unconnected with the grow operation to occupy the home ... it was her residence and that of herfamily ... hence it could not be said she "had no discernible reason to live in that home except as someone who is involved in assisting insome way in the growing of the marijuana" (para. 34); • Ms. Serban testified that she neither participated in nor in anyway assisted her husband in the grow operation in the basement …her husband had the only key to the basement and she had neither access nor control over that area; and • Mr.

Serban carried on the grow operation against his wife's wishes. [51] I recognize that each case turns on its own facts and that each of the Ngo and Serban decisions involved trial outcomes and notvoir dires respecting reasonable grounds for arrest. Nonetheless, in the present case the Crown could have led expert evidencerespecting the operation of clandestine labs in personal residences and the manner in which persons who occupy such premises are in aposition to provide assistance to any principal who might be "cooking" or producing the drug. No such evidence was provided. Nor infact did even Det. Cst.

Smart articulate the particulars of any role he believed Ms. Truong to have played in aiding and abettingMr. Wong. As such, I am obliged to conclude there is insufficient objective justification for Det. Cst. Smart's subjective belief thatMs. Truong was assisting or encouraging Mr. Wong with the production of methamphetamine. Hence her arrest for that offence on theevening of June 14, 2012 lacked sufficient grounds and constituted a breach of her rights under s. 9 of the Charter.

Search Incidental to Arrests [52] The common law power to search incidental to arrest permits a warrantless search of both the person arrested and the immediatesurroundings within that person's control. The three main purposes of any such search are: (1) to ensure the safety of the police and thepublic; (2) the protection of evidence from destruction at the hands of the arrestee or others; and (3) the discovery of evidence of theoffence for which the accused is being arrested and which can be used at the arrestee's trial: R. v. Caslake, (SCC),[1998] 1 S.C.R. 51. [53] The arrest of Ms.

Truong was made without sufficient grounds and was therefore unlawful. Any searches and seizures said tobe incidental to that arrest were therefore also unlawful. [54] Upon completion of her search incident upon Ms. Truong's arrest, Det. Cst. Young seized a plastic baggie subsequentlydetermined to contain 1.418 grams of methamphetamine and Ms. Truong's cell phone. [55] Following his arrest of Mr. Wong, Det. Cst. Griffiths searched both Mr. Wong and his vehicle. It was acknowledged on thisvoir dire by counsel for Mr. Wong that if the arrest of Mr.

Wong was lawful, then the searches of his person and his vehicle at the time

of the arrest were also lawful. Items seized from Mr. Wong and his vehicle following the arrest included: • two boxes containing 12 blister packs of Reactine, a product that can be used in the process of making methamphetamine; • an invoice for the Ephedrine, one of three primary substances used in methamphetamine synthesis; • documents describing the process for methamphetamine synthesis and Ephedrine reduction; • keys from the ignition of the vehicle; and • an iPhone. [ 56 ] On August 6, 2012 Det. Cst.

Smart completed an "Exhibit Submission Form" requesting the Technological Crime Unit ("TCU") of the VPD examine Ms. Truong's cell phone for "contacts/text messages/calls dialled and received". On September 6, 2012, Det. Cst. Smart completed a similar form requesting the same examination in respect of Mr. Wong's iPhone. [ 57 ] The examination of the two cell phones was eventually carried out by Det. Cst. Ward who testified at the voir dire and who was qualified as an expert witness in the area of forensic examination and

interpretation of data recovered from digital devices including cell phones, computers and digital storage media. [ 58 ] Det. Cst. Ward was asked if there was a queue to get cell phones analysed by the TCU and he replied, "Very much so". He testified that prioritization of TCU assistance requests was done by the TCU sergeants. In this particular case, Det. Cst. Ward received the two cell phones on May 24, 2013, some 11 months following the arrests of Mr. Wong and Ms. Truong. [ 59 ] Once the phones were charged, Det. Cst. Ward used forensic software to extract data from them.

This allowed him to extract SIM card contacts, "phonebook" information respecting names and phone numbers in the cell phone's contact list, the "call history" showing incoming and outgoing calls, Short Message Service ("SMS") text messages sent as part of the phone's data plan, "Apple iMessages" (text messages sent by the Apple program via cellular data or Wi-Fi), and "WhatsApp Messages" (text messages sent by a messaging application). [ 60 ] One may well ask whether the 11-month gap between the date of cell phone seizure and the date the phones' data was accessed means the data search was no longer "incidental to arrest".

In Caslake , Lamer C.J. stated, at para. 24: The temporal limits on search incident to arrest will also be derived from the same principles. There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer be said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest. A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest.

Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay. [ 61 ] In R. v. Montgomery , 2016 BCCA 379 , the TCU attempted to access data from a seized Blackberry approximately one month following arrest but were unable to do so because the device was password protected. It was therefore sent to another unit in Ontario where, for some unstated reason, the forensic examination was not undertaken until one year later.

The same issue arose – whether the delayed access to data impugned the search for and seizure of the device some 16 months earlier. The Court referred to the passage in the Caslake judgment set out above and stated: [171] ... Of course, what the Chief Justice was discussing was the timing of the post-arrest search leading to the seizure of an item, not the later forensic examination of a lawfully seized item. In the present case, the physical seizure of the BlackBerry from Mr. Montgomery's vehicle occurred very shortly after he was lawfully arrested and was incidental to that arrest. ... [175] ...

I consider what occurred in Ottawa to be part of a continuum of forensic examination that began within a few days of Mr. Montgomery's arrest. [ 62 ] Of course, the problem in Montgomery , as it is in the present case, was the changed legal landscape arising from the seminal Supreme Court of Canada decision in R. v. Fearon , 2014 SCC 77 . In that case two men had robbed a jewelry merchant at gunpoint and fled the scene in a vehicle. They were arrested later that evening. During the pat-down search of one of the suspects, conducted incident to arrest, a cell phone was found in the suspect's pocket.

The police searched the phone at that time and then again less than two hours following the arrest. The cell phone contained a draft text message respecting the jewelry theft and a photo of a handgun. Months later the police applied for and were granted a warrant to search the contents of the phone but no new evidence was discovered upon the subsequent search.

The Court held that the search of the cell phone breached s. 8 of the Charter , however the evidence obtained through that search was admissible nonetheless. [ 63 ] Fearon established that the common law power to search incident to a lawful arrest permits the search of a cell phone and similar electronic devices which are found on a suspect. However, Justice Cromwell noted that searches of such devices permit much more significant invasions of privacy than the typical search incident to arrest.

Fearon therefore prescribed the following guidelines to ensure compliance with s. 8 of the Charter during cell phone searches incident to arrest: • first, the arrest must be lawful; • second, the search of the cell phone must be truly incidental to the particular arrest for the particular offence and it must be performed promptly upon arrest;

• third, such searches are only permitted for the purposes of: (

i) protecting the police, the accused or the public; (ii) preserving evidence; and (iii) if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence. If the purpose of the search is the discovery of evidence, there must be some reasonable prospect of finding evidence of the offence for which the accused is being arrested; • fourth, the nature and the extent of the search must be tailored to its purpose. Investigators must be able to explain what they searched and why they did so.

They must also be able to explain why it was not practical, in all the circumstances of the investigation, to postpone the search until they could obtain a warrant; • fifth, as a general rule, only recently sent or drafted emails, texts, photos and the call log may be examined, although other searches may be justified in some circumstances; and • sixth, the police must take detailed notes of what they examined on the device and how they examined it.

These should include the applications searched, the extent of the search, the time of the search, its purpose and its duration. [ 64 ] In Fearon , the Court held that the search in that case met all of the conditions of the new regime except for the last, i.e. , detailed evidence about precisely what was searched, how and why. Despite that breach, however, the Court ruled that the evidence obtained through the cell phone search should not be excluded. In weighing the various factors identified in R. v.

Grant , 2009 SCC 32 , as governing the application of s. 24(2) of the Charter , the Court noted the inconsistent case law on the question of whether the power of search incident to arrest permitted the search of cell phones and other similar devices found on a suspect: [2] Canadian courts have so far not provided a consistent answer. At least four approaches have emerged. The first is to hold that the power to search incident to arrest generally includes the power to search cell phones, provided that the search is truly incidental to the arrest: ... The second view is that "cursory" searches are permitted: ...

A third is that thorough "data-dump" searches are not permitted incident to arrest: ... Finally, it has also been held that searches of cell phones incident to arrest are not permitted except in exigent circumstances, in which a "cursory" search is permissible: ... These divergent results underline both the difficulty of the question and the need for a more consistent approach. [Internal citations omitted.] [ 65 ] In the present case, the Crown concedes that the police search of the cell phones belonging to Mr. Wong and Ms.

Truong following their arrest does not meet the criteria subsequently imposed by the Fearon regime and that, accordingly, the searches breached the accused's right, under s. 8 of the Charter , to be secure against unreasonable search or seizure. I agree that such a breach occurred. The arrest of Ms. Truong was not lawful. The searches of the cell phones were not carried out promptly upon arrest. There was no reason why a warrant could not have been obtained before the search was conducted 11 months following the arrest.

The search was also excessively broad and was not confined to material recent to the arrest. [ 66 ] While the search of the cell phones constituted a breach of the Charter , it is not yet clear what is the material derived from that search that the Crown wishes to enter into evidence at trial. Whether that evidence should be excluded from trial is a matter which will be more fully addressed at the "omnibus" s. 24(2) hearing contemplated as the final stage of these various voir dires . Right to Counsel [ 67 ] The Crown concedes that there occurred in this case a breach of the accused's rights under s. 10(

b) of the Charter to retain and instruct counsel without delay. The accused were arrested at approximately 11:00 p.m. on the evening of June 14, 2012. They were immediately informed of the reasons for their arrest and they were also immediately informed of their right to retain and instruct counsel without delay. When asked if they wish to exercise that right, both accused replied in the affirmative. [ 68 ] It is clear that, if the opportunity presented itself, the police intended to arrest the accused before the search warrant on their residence was executed.

The police also intended to hold the accused incommunicado between the time of the arrest and the execution of the warrant, which, as it turns out, was at least six hours in this particular case. This was a deliberate strategy known not only to Det. Cst. Smart and all members of the search warrant execution team, but also a strategy expressly approved beforehand by senior VDP management, including Insp. Cumberworth. [ 69 ] The "Operations Plan" prepared by Det. Cst. Smart on June 13, 2012 and expressly approved by Insp.

Cumberworth the following day, contemplated that the search warrant would be executed at approximately 5:00 a.m. on June 15, 2012 and that briefings would be provided beforehand to the various personnel involved including the Drug Squad, the Emergency Response Team, the RCMP provincial Clandestine Lab team, Health Canada, the Vancouver fire and hazmat team, among others.

The Operations Plan also stated: Drug squad members will conduct daytime surveillance of WONG the day before (currently ongoing), if the opportunity presents itself WONG will be arrested later in the day when he leaves the residence and held HPI until the warrant is executed; this is to prevent the possibility of barricaded suspect in a Clan Lab [sic]. [ 70 ] The VPD have created a document entitled "Vancouver Jail Arrest Report" which is used to document various details respecting an arrestee and that person's personal property at the time of both arrest and any subsequent discharge or transfer.

The form documents the arrestee's personal particulars (name, address, time of arrest, physical appearance, et cetera ), the "charges" against the accused, particulars of any warrants that have been issued, remarks respecting medical conditions and circumstances of arrest, description of clothing and other personal property, and the like. Some of the information is filled out by the arresting officer and some of it is completed by the "jail officer". [ 71 ] In the present case, the circumstances of arrest included the notation "Project Tent drug squad file, HPI as per 2361 Griffiths". The "Charges"

section of the document is the same for both accused and reads, "HPI production of a controlled substance, possession of

firearm, unsafe storage of firearm". The last two charges were added to the document after the search warrant had been executed and the discovery of firearms within the residence had been made. [ 72 ] Both jail arrest reports bear two highlighted notations. The first reads "HPI", meaning 'held pending investigation' in large letters at the top of the document. The second reads "*NO PHONE CALLS*" on the bottom of the document. The form contains a box in which the identity of the non-commissioned officer authorizing the "HPI" status is to be inserted. On Mr. Wong's form the name of Sgt. Stadler appears. In Ms.

Truong's form, the badge number for Det. Cst. Griffiths appears. [ 73 ] In his testimony, Det. Cst. Smart confirmed that he hoped to have the accused arrested, hopefully outside or away from the residence, before the search warrant was executed. He says the purpose was to prevent the accused from setting fire to the premises thereby destroying evidence. [ 74 ] Det. Cst.

Smart also confirmed that following the anticipated arrest, the plan was for the accused to be taken to the city jail and 'held pending investigation' during which time there would be no access to counsel until after the search warrant had been executed. The purpose of holding the accused incommunicado between the time of the arrest and the time of the search was "to prevent any outside communications to destroy evidence". [ 75 ] Det. Cst.

Griffiths confirmed that "HPI" status was a common feature on these "project" investigation files and that it was a common practice to arrest people before a premises search was executed. He testified that the "*NO CALLS*" notation was not as common a feature as "HPI" but it was to prevent both access to counsel and the passing on of information to others until after a search warrant had been executed. The goal for such a practice was "officer safety" and "evidence preservation". [ 76 ] Sgt. Sadler was one of two non-commissioned officers in the VPD drug squad at the time of Project Tent.

He was not, however, part of the investigation team for that project, even though he was noted as "team commander" on the Operations Plan prepared by Det. Cst. Smart. It was Sgt. Sadler who actually received and forwarded Det. Cst. Smart's Operations Plan to Insp. Cumberworth. [ 77 ] Sgt. Sadler testified that "HPI" designation reflects the process of arresting and holding persons without charge. It is a technique used by the department before a search warrant is executed. [ 78 ] Mr. Eric Ip was the Vancouver jail guard on duty on June 15, 2012.

Part of his duties included facilitating a prisoner's access to counsel and maintaining the "Lawyer's Logbook" detailing steps taken in that regard. [ 79 ] Mr. Ip testified that ordinarily after prisoners are turned over by the police to the jail guards, the prisoners are searched. Thereafter the guard will facilitate the prisoner's access to counsel. There is a room at the Vancouver jail with a telephone that allows the jail guard to see a prisoner but not to overhear the prisoner's conversation.

The prisoner is placed in the room and the jail guard dials a specific lawyer's telephone number or calls Legal Aid, and then the guard transfers the call to the telephone in the room for the prisoner to participate. [ 80 ] Mr. Ip has no recollection of the events of June 15, 2012 respecting Mr. Wong and Ms. Truong. However, he confirmed that he was the author of the first two entries in the Lawyer's Logbook respecting Mr. Wong's communication with counsel between 5:13 to 5:18 a.m. and Ms.

Truong's communication to counsel between 5:26 to 5:28 a.m. on that day. [ 81 ] The Wong logbook entry reads "(cannot hold lawyer) Legal Aid (as per Sgt.)". Mr. Ip explained this entry means that he was unable to contact a lawyer identified by Mr. Wong and so he put Mr. Wong in touch with Legal Aid at that time. [ 82 ] The entry respecting Ms. Truong reads "(message) lawyer". Mr. Ip explained that this meant Ms. Truong had left a telephone message with a lawyer. [ 83 ] Thereafter, the entries in the logbook indicate Mr. Wong was put in contact with his selected lawyer (Mr.

Cobb) on two occasions, namely at 8:31–8:43 a.m. and 12:51–1:07 p.m. [ 84 ] The Lawyers' Logbook notes that Ms. Truong again tried to contact her selected lawyer (Mr. Albert) at 9:28 a.m. but he was in a meeting and that it was not until 10:30 a.m. that she was able to have a six-minute conversation with Mr. Albert. [ 85 ] Ms. Truong did not testify on the voir dire . However, Mr. Wong gave evidence respecting his arrest and the timing of his efforts to gain access to counsel. [ 86 ] Mr. Wong confirms that when he was arrested by Det. Cst. Griffiths he was asked whether he wished to speak to a lawyer.

He says he replied in the affirmative and that he told Det. Cst. Griffiths that his lawyer's card was in the center console in his car. After Det. Cst. Griffiths placed him under arrest for production of methamphetamine, he asked Mr. Wong where he lived and told him that he had been under investigation for a while. He also asked "if there was any cook going on" and if it was safe to enter the house, inquiring about traps and barricades. [ 87 ] Mr. Wong initially said he did not remember any phone call occurring with lawyers at 5:13 a.m. on June 15, 2012.

He testified that no one said anything to him about speaking to a lawyer when he got to the jail "until much later". He then denied that any phone call occurred at 5:13 a.m. and stated that he gave Mr. Cobb's name to the jail guard at 8:30 a.m. which is what prompted the phone call at that time. Thereafter, in further cross-examination, Mr. Wong conceded it was "possible" he was given access to counsel at 5:13 a.m. [ 88 ] Mr. Wong's testimony was inconsistent and ambiguous. In contrast, Mr. Ip was a credible witness and I accept the accuracy of his notes.

I find the accused were both provided the opportunity to contact counsel at the times set out in the "Lawyer's Logbook". [ 89 ]

Section 10(

b) of the Charter guarantees "a right to retain and instruct counsel without delay and to be informed of that right". The purpose of the right to counsel is:

… To allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights …The right to retain and instruct counsel is also meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination ... Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy is able to make a choice to speak to the police investigators that is both free and informed ...: R. v. Taylor , 2014 SCC 50 , at para. 21 . [Internal references omitted.] [ 90 ]

Section 10(

b) of the Charter imposes three subsidiary duties on police when a person is detained or arrested: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of emergency or danger): Taylor at para. 23 . [ 91 ] Taylor also holds, at para. 24 that "the duty to inform a detained person of his or her right to counsel arises 'immediately' upon arrest or detention ... and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel…". [ 92 ] In the present case, there can be no doubt that a serious and inexcusable breach of the accused's s. 10 Charter rights occurred.

Further, the breach was intentional and seemingly authorized by the highest echelon of the VPD. More egregious still is the fact that there existed no reasonable ground for the police to believe the safety of police officers or members of the public was at urgent risk or that the destruction of evidence was imminent or even possible. [ 93 ] The police had the house under surveillance and the execution of the search warrant was scheduled shortly following the arrest. There was no evidence suggesting anyone other than Ms. Truong and Mr. Wong was occupying the premises.

Any police suggestion of urgent and imminent danger to person or evidence rings exceedingly hollow. All the more so since the denial of right to counsel could only have been based on the cynical assumption that any lawyer (an officer of the court) consulted by the accused would breach both the law and their ethical duties by somehow triggering the destruction of the evidence at the accused's residence. [ 94 ] In R. v.

Yee , PCBC No. 217867-1, unreported, February 17, 2016, the Provincial Court of British Columbia addressed a carefully crafted, deliberate and pre-planned delay of access to counsel as part of the execution of a search warrant. No mention was made in the ITO for the search warrant of the plan to delay access to counsel. The delay turned out to be two hours from the time of arrest for one of the accused and five hours for the other. The court characterized the police conduct as an "extremely serious" Charter breach from which there was "a great need for the Court to disassociate itself".

It is a sentiment equally applicable to the present case. [ 95 ] I would also note other Charter breaches occurred at and following the arrests. [ 96 ] Det. Cst. Griffiths continued making inquiries of Mr. Wong at the scene respecting the "cook" at the premises despite being advised that Mr. Wong wished to speak with counsel. I do not accept his stated rationale for those inquiries, i.e. , police safety. He was clearly attempting to elicit an admission from Mr.

Wong. [ 97 ] Both accused were interviewed at the jail even though they had spoken to counsel and advised the police they did not wish to be interviewed without counsel being present. Both were re-arrested in jail for firearms' offences when firearms were discovered during the search of the East 15th Avenue premises. Both wished to speak to counsel. Mr. Wong was given the opportunity to do so. Ms. Truong was not. [ 98 ] The two accused were released from custody without charges at approximately 2:30 p.m. on June 15, 2012.

They had been detained for approximately 15 1/2 hours. [ 99 ] It is not clear what evidence was obtained by the police as a result of the planned denial of the accused's rights under s. 10(

b) of the Charter . Even if access to counsel had been granted immediately upon their arrest, and assuming counsel abided by their legal and ethical obligations, any evidence at the East 15th Avenue premises would have remained intact until the search warrant was executed in any event. As before, however, the determination of an appropriate remedy for the s. 10(

b) Charter breaches in this case has yet to be made following the submission of the parties in the last phase of these voir dire s .

Summary and Conclusion [ 100 ] In the result I conclude that: • the warrantless arrest of Mr. Wong was lawful; • the warrantless arrest of Ms. Truong was unlawful and amounted to a breach of her rights under s. 9 of the Charter ; • the search of Mr. Wong's person and his vehicle incident to his arrest was lawful, excepting only the scope and extent of the iPhone search which ran afoul of the Fearon criteria for Charter compliance; • the search of Ms. Truong's person and the cell phone purportedly incidental to the arrest to her arrest was unlawful and a breach of her rights under s. 8 of the Charter ; and

• while both accused were promptly informed of the reasons for their arrest and of their right to retain and instruct counsel without delay, they were nonetheless wrongly denied those rights contrary to s. 10(

b) of the Charter . [ 101 ] The appropriate remedy for the Charter breaches identified above will be determined in due course following submissions from counsel. "KENT J."