R. v. Nguyen, 2012 BCPC 58

Citation: R. v. Nguyen, Ta and Vu Date: 20120207 2012 BCPC 0058 File No: 15400-2-C Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NGOC XUAN NGUYEN TAN DUY TA TUAN MINH VU ORAL REASONS FOR JUDGMENT (RE ACCUSED TA AND ACCUSED VU) OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: P. Whyte Counsel for the Accused Ta: J. Flemming Counsel for the Accused Vu: M. Smith Place of Hearing: Sechelt , B.C.

Date of Judgment: February 7, 2012 [ 1 ] THE COURT: Tan Duy Ta and Tuan Minh Vu are charged with unlawful production of marihuana, possession of marihuana for the purpose of trafficking, and theft of electricity. [ 2 ] This is an application by both individuals for exclusion of evidence on the grounds that their Charter rights under ss. 8 , 9 , and 10(

b) of the Canadian Charter of Rights and Freedoms have been infringed. [ 3 ] I will first briefly summarize the facts as I have determined them for the purposes of this application. I will then review the arrest of Mr. Ta and Mr. Vu with reference to the principles I must follow. Then I will review the search of each individual, followed by my analysis of the delay by the police in allowing both individuals to call lawyers. I will then conclude with my determination of Mr.

Vu's application to exclude the evidence found on him, and the application by both to exclude the evidence seized from the house. [ 4 ] On November 26, 2009, members of the RCMP went to a house in Langdale, intending on searching the house pursuant to a warrant to search. Constable Mylymok and Constable Joslin went to the front door, knocked on the door, and announced, "Police, search warrant". The door was answered by Mr. Vu and he was arrested. Mr. Ta then came to the door and he was arrested. Both individuals were advised of their Charter rights and both stated they wanted to call a lawyer.

Some time in excess of 12 hours elapsed before they were allowed to call a lawyer. [ 5 ] I will now deal with the arrest of Mr. Ta and Mr. Vu. [ 6 ] The power of the police to arrest a person without a warrant is set out in s. 495(1) of the Criminal Code . In R. v. Storrey , 1990 CanLII 125 (SCC) , [1990] 1 S.C.R. 241 , the Supreme Court of Canada clarified this provision: . . . the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the

arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. [ 7 ] Although the wording of the

section has changed since Storrey , this remains the guiding principle: see R. v. Chaif-Gust , 2011 BCCA 528 . [ 8 ] In the present case, the police had established the existence of an indictable offence, once they located the grow operation. The only link between this offence and Mr. Ta and Mr. Vu, however, was their presence on the property.

The question, therefore, is whether mere presence at the site of the offence constitutes subjective and objective reasonable and probable grounds for arrest in the circumstances of this case. [ 9 ] The objective component of the test requires that a reasonable person standing in the position of the arresting officer would have concluded that there were reasonable and probable grounds to make the arrest. The objectively reasonable person is presumed to have the same level of experience and knowledge as the arresting officer: see R. v.

To (1998), 109 B.C.A.C. 242 . [ 10 ] Thus, the arresting officer's experience can be taken into account in determining whether reasonable grounds exist: see R. v. Luong , 2010 BCCA 158 . [ 11 ] The standard of reasonable grounds to believe is lower than the threshold required for a prima facie case for conviction and is less than the civil standard of proof on a balance of probabilities: see R. v.

Debot (1986), 1986 CanLII 113 (ON CA) , 17 O.A.C. 141 , affirmed 1989 CanLII 13 (SCC) , [1989] 2 S.C.R. 1140 . [ 12 ] The arresting officer is not expected to conduct an inquiry of the kind demanded of a justice faced with an application for a search warrant: see R. v. Polashek (1999), 1999 CanLII 3714 (ON CA) , 45 O.R. (3d) 434 , a decision of the Ontario Court of Appeal. [ 13 ] In deciding whether there is objective justification for an arrest, the court is to consider the evidence cumulatively, and each case is determined on the totality of the particular circumstances: see R. v.

Bracchi , 2005 BCCA 461 . [ 14 ] Constable Mylymok arrested Mr. Ta and Mr. Vu on the following grounds: 1. he had a warrant to search the residence; 2. Mr. Nguyen had been at the house earlier in the day and he was involved in a grow operation at a different house; 3. the smell of marihuana before the door to the house opened; 4. once the door to the house opened, a smell of vegetative marihuana wafted out; 5. sounds of fans humming, which amplified when the door opened; 6. Mr. Ta and Mr. Vu were in the residence. [ 15 ] Crown counsel submits that I should also take into account that Mr.

Vu opened the door and that he was dressed in shorts and a T-shirt and was barefoot, and that Mr. Ta, who came from the kitchen/living room area of the house also was wearing a T-shirt. [ 16 ] I accept that Constable Mylymok held the subjective belief that Mr. Ta and Mr. Vu were committing an indictable offence. However, even considering the additional factors as submitted by Crown counsel, there is nothing that links these individuals to the property, other than their presence in the house.

I also find that the police had no basis to infer the property was being used solely for drug-related activity. [ 17 ] The fact that a person is inside a place believed to contain drugs and in respect of which a search warrant has been issued does not, without more, provide objective grounds for arrest. The police are not entitled to arrest first and then determine whether the person arrested is connected to the offence under investigation: see R. v. Whitaker , 2008 BCCA 174 , and R. v. Chaif-Gust , 2011 BCCA 528 . [ 18 ] The warrantless arrests of Mr. Ta and Mr.

Vu were arbitrary and unlawful. [ 19 ] I will now deal with the search of Mr. Ta and Mr. Vu. [ 20 ] Nothing was found on Mr. Ta during his unlawful arrest. [ 21 ] Having regard to my conclusion that Mr. Vu's arrest was arbitrary and unlawful, the search of Mr. Vu and the seizure of two receipts and a business card were in violation of Mr. Vu's s. 8 Charter right. [ 22 ] I will now deal with the failure of the RCMP to allow Mr.

Ta and Vu to contact counsel for some time in excess of 12 hours after their arrest and stated request to contact counsel. [ 23 ] After Constable Mylymok arrested both individuals, they were taken to the RCMP detachment by another police officer and put into cells. After executing this search warrant, the police were going to execute a search warrant at another house. I have concluded that the RCMP refused to allow Mr. Ta and Vu to contact counsel as requested, because the police felt that if Mr. Ta and Mr.

Vu spoke with lawyers, this would jeopardize the search of the second house. [ 24 ] I infer from the evidence of Constable Mylymok that the police believed that if Mr. Ta and Mr. Vu spoke with lawyers, officer safety at the second house would be jeopardized and evidence could be destroyed.

[ 25 ] According to Constable Mylymok, this decision not to allow Mr. Ta and Mr. Vu to speak with lawyers was likely made by a corporal at the detachment. In coming to that decision, the police violated both individuals's s. 10 (

b) right to retain and instruct counsel without delay. [ 26 ] I will now deal with the application to exclude evidence pursuant to s. 24(2) of the Charter . [ 27 ] The approach to be taken by the court in determining the admissibility of evidence obtained in breach of a Charter right is set out in R. v. Grant , 2009 SCC 32 . [ 28 ] In R. v. Reddy , 2010 BCCA 11 , Justice Frankel summarized the Grant factors at paragraphs 91 to 94 , and I quote: [91] The Grant factors are succinctly stated at paragraph 71 of that decision.

In deciding whether to admit or exclude evidence, a court must now assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: 1. the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); 2. the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little); and 3. society's interest in the adjudication of the case on its merits. See also: R. v.

Harrison , [2009 SCC 34] . . . [92] With respect to the first factor—seriousness of the breach—the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion . . . Further, as the Chief Justice and Charron J. noted . . . "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith . . . [93] As for the second factor—impact of the breach on the accused—it was observed that "[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive".

The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted . . . [94] The last factor—society's interest in a decision on the merits—involves the question of "whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" . . . The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial.

Although "seriousness of the offence" remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction . . . [ 29 ] Any unlawful arrest is a serious trespass by the state of a citizen's liberty. A search of one's person without lawful justification constitutes an intrusion where the privacy interest is at the very high end of the spectrum: see R. v. Godbout , 2011 BCSC 1722 . [ 30 ] In this case, Mr.

Vu was arrested because he was present in the residence. I do not consider the s. 8 and 9 breaches to be merely technical or fleeting. There was no evidence of extenuating circumstances or inadvertent errors on the part of the police. [ 31 ] The court should dissociate itself from police conduct that fails to comply with the Charter or otherwise amounts to a marked departure from Charter standards: see R. v. Harrison . [ 32 ] Mr. Vu had a rightful expectation of liberty and privacy. The impact of the breaches upon those fundamental Charter -protected interests was serious and significant.

In my view, the first and second branches under the Grant framework favour exclusion of evidence: see again R. v. Godbout . [ 33 ] The evidence seized from Mr. Vu is reliable and is a significant part of the Crown's case. The public has an interest in the prosecution of those who illegally produce marihuana and possess it for the purpose of trafficking. That said, these factors are not conclusive. [ 34 ] Society also has an interest in ensuring that police respect the highly-valued rights of liberty and privacy of its citizens. [ 35 ] In weighing the violation of Mr.

Vu's rightful expectation of liberty and privacy and society's interest in adjudication of the charges on their merits, I conclude that, despite its reliability, admission of the evidence obtained in these circumstances would have an adverse effect on the reputation of the administration of justice at large in the long term. [ 36 ] The two receipts and one business card, Exhibit C, seized from Mr. Vu must be excluded. [ 37 ] I will now deal with the application by Mr. Ta and Mr. Vu for the exclusion of the marihuana plants and all other items seized as a result of the search of the residence. [ 38 ] Mr.

Ta and Mr. Vu were unlawfully arrested and arbitrarily detained. They were also denied the right to contact counsel without delay. While these infringements of their rights were occurring, the police were searching the residence and seizing items. The question of whether there is a requisite nexus between a Charter breach and the obtaining of evidence in relation to the breach is a threshold issue to be determined under s. 24(2) .

[ 39 ] As stated by Mr. Justice Doherty speaking for the court in R. v. Plaha (2004), 2004 CanLII 21043 (ON CA) , 188 C.C.C. (3d) 289 , a decision of the Ontario Court of Appeal, at paragraph 44 Justice Doherty noted: There are two components to s. 24(2). The first is a threshold requirement. The impugned evidence . . . must be obtained "in a manner that infringed" a right under the Charter .

If the threshold is crossed, one then turns to the evaluative component of s. 24(2) – could the admission of the impugned evidence bring the administration of justice into disrepute? [ 40 ] The threshold issue here, therefore, is whether the breaches of Mr. Ta and Mr. Vu's Charter rights or any of them are sufficiently linked to the evidence sought to be excluded to trigger the application of the second stage of the s. 24(2) analysis. [ 41 ] In my view, the breaches of Mr. Ta's s. 9 and 10 (

b) rights and Mr. Vu's s. 9 and 10 (

b) rights occurred while the police were searching the house. The temporal link between the discovery of the evidence and the breaches of these rights is sufficient to trigger the application of s. 24(2): see R. v. Bohn , 2000 BCCA 239 , and R. v. Lauriente , 2010 BCCA 72 . [ 42 ] I have already referred to the fact that an unlawful arrest is a serious trespass by the state of a citizen's liberty. The refusal by the police to allow Mr. Ta and Mr. Vu to contact counsel for in excess of 12 hours is also serious. Not only does it demonstrate a pattern of disregard for Charter rights, it was a deliberate decision.

Fearing that if counsel were contacted, another investigation would be jeopardized, the police made a flagrant bad-faith decision to not allow Mr. Ta and Mr. Vu to speak to lawyers. [ 43 ] I note that the police fear was that the lawyers, once they spoke to their client, would be responsible for interfering with the investigation. My finding of fact is that the police believed that if Mr. Ta and Mr.

Vu exercised their right to counsel, one or both of the lawyers they spoke to would alert those involved in another house the police intended to search of the investigation, and as a result officer safety and evidence could be destroyed. Not surprisingly, Crown counsel did not lead any evidence to support this assertion. [ 44 ] Further compounding this is the fact that once the other investigation concluded, it was still hours before the police allowed Mr. Ta and Mr.

Vu to speak to counsel. [ 45 ] I have concluded the state conduct was deliberate, flagrant, egregious, and in bad faith. [ 46 ] As stated earlier, the court should disassociate itself from police conduct that fails to comply with the Charter or otherwise amounts to a marked departure from Charter standards. This was a marked departure from Charter standards: see R. v. Harrison , 2009 SCC 34 . [ 47 ] Both of these individuals had a rightful expectation of liberty and privacy and the expectation they could call counsel once arrested.

The impact of these breaches upon these fundamental Charter interests was serious and significant. [ 48 ] In my view, the first and second branches under the Grant framework favour exclusion of the evidence. However, the evidence seized from the house is reliable, would have been discovered in any event, and is absolutely critical to the Crown's case. These are serious charges and society has an interest in the prosecution of those who illegally produce marihuana and possess it for the purpose of trafficking. [ 49 ] I also note that the house is not the residence of Mr. Ta and Mr. Vu.

This does favour admission. [ 50 ] That said, this is a case of multiple Charter breaches. The police were not attentive to the rights of Mr. Ta and Mr. Vu. There is a pattern of disregard for Charter rights. The s. 8 and 9 breaches were serious. I would not characterize them as having been in bad faith, although there was clearly an absence of good faith. [ 51 ] The s. 10 breach is also serious, flagrant, egregious, and was in bad faith. I must consider the impact of the multiple Charter breaches on the long-term administration of justice: see R. v. Bohn and R. v. Lauriente . [ 52 ] In R. v.

Golub (1997), 1997 CanLII 6316 (ON CA) , 117 C.C.C. (3d) 193 , a decision of the Ontario Court of Appeal, Justice Doherty writing for the court emphasized the importance of respect for constitutional rights in the context of s. 24(2) of the Charter . He said at paragraph 60: In addressing the effect of the exclusion of the evidence on the repute of the administration of justice, I bear in mind the comments of Iacobucci J. in R. v.

Burlingham (1995), 1995 CanLII 88 (SCC) , 97 C.C.C. (3d) 385 [a decision of the Supreme Court of Canada] at [page] 408 [Justice Iacobucci noted]: . . . we should never lose sight of the fact that even a person accused of the most heinous crimes . . . is entitled to the full protection of the Charter . Short-cutting or short- circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system.

It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques, are of fundamental importance in applying s. 24(2). Iacobucci J. reveals the heart of the third part of the s. 24(2) inquiry in this passage. The moral authority to apprehend and punish those who commit crimes rests on the community's commitment to the rule of law. Convictions procured by state violations of our most fundamental law lack that moral authority.

Respect for the rule of law and the long term viability of the justice system suffers where the police engage in "short cuts" or fail to respect the constitutional rights of those they encounter in the course of the exercise of their duties.

The long term harm to the justice system is not worth the short term gain made by the admission of evidence which was obtained in a manner that ignores the rule of law. [ 53 ] I have concluded that there is a pattern of disregard of Charter rights that is serious, characterized by bad faith and an absence of good faith. [ 54 ] In weighing the violation of the rights and society's interest in adjudication of the charges on their merits, and despite the

reliability and the discoverability of the evidence, and the fact that it was not the residence of Mr. Ta or Mr. Vu, it is my judgment that the long-term harm to the justice system is not worth the short-term gain made by the admission of the evidence which was obtained in a manner which ignores the rule of law. [ 55 ] I have concluded, therefore, that the truth-seeking function of the criminal trial process would be better served by the exclusion of all of the evidence from the house. Accordingly, the evidence is excluded. [ 56 ] MR. WHYTE: Thank you, Your Honour.

The Crown tenders no further evidence. [ 57 ] THE COURT: Defence is obviously calling no evidence? [ 58 ] MR. SMITH: Not calling any evidence for Mr. Vu. [ 59 ] MR. FLEMMING: Nor Mr. Ta, Your Honour. [ 60 ] THE COURT: Yes. There will be acquittals on all three counts on Information 15400-2-C, there being no evidence against the three of them. Thank you. [ 61 ] MR. FLEMMING: Thank you, Your Honour. [ 62 ] MR. SMITH: Thank you, Your Honour. (REASONS CONCLUDED)