R. v. Nguyen and Ngo Date:, 2011 BCPC 224

Citation: R. v. Nguyen and Ngo Date: 20110727 2011 BCPC 0224 File No: 172840-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HOANG NGUYEN and NGOC NGO VOIR DIRE RULING RE: APPLICATION BY HOANG NGUYEN s. 8, 9, 10(

b) and 24(2) of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS OF THE HONOURABLE JUDGE J. D. BAHEN Counsel for the Crown: J. Lapionte (for Federal Crown) Counsel for the Defendant: M. Fortino (for Hoang Nguyen) Place of Hearing: Surrey, B.C. Dates of Hearing: July 4, 5, 6, 21, 27, 2011 Date of Judgment: July 27, 2011 [ 1 ] The accused, Hoang Nguyen, and a co-accused have been jointly charged with offences under the Controlled Drugs and Substances Act.

The charges arose on March 26, 2009, after police, using a search warrant, located a large marijuana cultivation operation inside a residence in Delta, B.C. [ 2 ] This application by counsel, on behalf of Hoang Nguyen, seeks the exclusion of evidence obtained by police following a road- side arrest of the applicant. [ 3 ] The evidence at this trial was heard within a voir dire, to determine the issues raised by Nguyen. The court heard from nine police officers from the Delta Police Department. The initial issue in this voir dire is whether the arrest of the applicant was unlawful.

If the arrest was unlawful, the further issues are whether the resulting road-side search, detention, identification and access to counsel involved any violations of the rights protected by sections 8 , 9 and 10(

b) of the Charter . The final issue, if any violations are established, concerns the scope of any remedies, such as exclusion of evidence by the application of section 24(2) . Position of Counsel [ 4 ] Mr. Fortino, on behalf of Hoang Nguyen, argues the arrest at road-side of the applicant was without reasonable grounds and in violation of

section 9 of the Charter . The resulting search and identification procedures used by police following the arrest are characterized as a further violation of the

section 8 Charter protections against unreasonable search and seizure. Also, the applicant’s access to counsel was delayed, and it is argued this delay was unreasonable and a violation of

section 10(b). The prolonged and serious nature of the violations of Charter rights are submitted to be factors favouring exclusion of evidence obtained following the arrest. The balancing of interests in section 24(2) is submitted to lead to an exclusion of evidence in this case, when all the relevant factors are considered. [ 5 ] For the Crown, Ms. Lapointe says there were reasonable grounds, objectively and subjectively, to allow the lead investigator, Sgt. Naidu, of the Delta Police drug squad to direct other patrol officers to complete the lawful arrest of the applicant, for the offence of theft of hydro.

The Crown says the arrest and resulting search were both lawful, and any delay in implementing access to counsel was limited in duration and reasonable in the circumstances. The access to a specific counsel requested by the applicant led to delay, when

that lawyer was not available. The applicant carries some obligation to inform the police of counsel of choice and further asserts his right to counsel if a specified counsel is not available. There was no effort to subvert the applicant’s rights, the police acted in good faith and therefore, the Crown argues, the remedy of exclusion of evidence is not appropriate if any breaches are identified. Discussion of the Evidence [ 6 ] In this voir dire, the relevant evidence of police witnesses is briefly summarized as follows. Constable Vaughn-Smith was the lead investigator.

On March 25, 2009 at about 1:30 p.m., he was on duty at the Delta Police detachment office. He received a letter by fax from B.C. Hydro informing the police of a suspected hydro theft occurring at a residence in Delta located at 9070 – 119A Street. The fax referred to a quantity of watts of electricity that Hydro suspected had been stolen. There was not any reference to a hydro by-pass in this report. These reports come regularly from B.C. Hydro to the police, and Cst. Vaughn-Smith said the reports are usually brief, about two pages. There had been no prior investigation of this house.

He contacted municipal government staff and learned the name of the owner of this property. The owner’s surname was Nguyen, his other names were different from the applicant’s names. Cst. Vaughn- Smith directed other officers to conduct surveillance at the address.

At about 4 p.m. on March 25 th , another officer, Constable Formby, reported there were vehicles at the address, including a Ford, a Toyota with license 950 LDR, a red van in the driveway with license 099 LDS and another van without a visible license. [ 7 ] After further checks by the police through motor vehicle registration records, the registered owner of the Toyota was identified as the applicant Hoang Nguyen. There was no overnight surveillance of the residence. The next day, March 26, 2009, the investigation continued, as Cst.

Vaughn-Smith drafted the Information to Obtain a search warrant, using the contents of the Hydro letter and the surveillance reports. He went to the Surrey Court House shortly after 12 noon and was granted a warrant to search this residence by a Judge at 12:26 p.m. Constable Vaughn-Smith did not consider this search involved any urgent time requirements. He briefed other Delta drug

section officers on the pending search at about 13:30 while at the police headquarters. The search team went to the residence at 9070 – 119 A Street, arriving there at 14:20. It was a two storey single family home in a residential neighbourhood, located on a cul de sac. The search team had a house key to open the door of the residence. Cst. Vaughn-Smith said he believed the key had been taken from the applicant on his arrest earlier that day.

Inside the residence the search team found a commercial-scale marijuana grow operation on two levels within the house, with quantities of sophisticated equipment to support the cultivation. The house appeared to be lived in, based on the contents of some rooms and the kitchen. There was no one present when the police searched the premises. Constable Vaughn-Smith agreed with the suggestion that Sgt.

Naidu, head of the Delta Police drug section, made the arrest decision and directed the process of arresting the applicant. [ 8 ] Constable Gallamore conducted surveillance at the residence on 119A Street, on March 26 from 10:35 in the morning. He saw a man at 12:19 in the afternoon leaving the residence. This man put garbage in a can, and appeared to lock the front door, before leaving the premises in the red van, license 099 LDS. Cst. Gallamore was inside a vehicle when making these surveillance observations, he could not recall how far away he was from the residence while observing.

He returned to the residence with the search team at 14:16 on the 26 th . He used a key given to him by another officer to open the front door of the residence while executing the search warrant. He subsequently interviewed the applicant in cells at the Delta Police office, and identified the applicant in court. He could not recall if the man seen leaving the residence was the same man who he interviewed in cells later on March 26 th . [ 9 ] Constable Formby was assigned to surveillance of the residence, beginning at 8:24 a.m. on March 26 th . At 12:18 he saw a man leave from the front door of the residence. Cst.

Formby believed the man locked the door with a key. He saw this man drive away in the red van, license 099 LDS. His observations were made from a distance of 70 metres. He knew the man had keys in his hand. The man had his back turned to Formby as the man was facing the front door. The man’s body position was consistent with locking a door. Cst. Formby could not see keys used to lock the door. He recalled speaking to Sgt. Naidu on police radio. Sgt. Naidu instructed patrol officers to stop and arrest the man who left in the red van. Cst.

Formby followed the red van and saw patrol officers stop the van and speak with the male driver. The driver was the same man Cst. Formby had seen leave the house. There was no identification in court of the applicant by Cst. Formby. He recalled the man at the door was short. He also recalled that Sgt. Naidu gave directions to arrest the man for theft of hydro. [ 10 ] Sergeant Naidu was in charge of the Delta Police drug section. He said he conducted a briefing with drug

section officers on March 26 th to prepare for the execution of the search warrant at 9070 – 119A Street. He said his instructions to the team included the direction that if anyone left the residence and was seen entering and driving away in any of the vehicles seen at the residence on the previous day, surveillance was to be maintained until the vehicle was a reasonable distance away from the residence. At that point, patrol officers would be called in to conduct a stop of the vehicle and arrest the person seen leaving the residence.

He said that the sighting of the van, license 099 LDS at the residence on March 25 th , led him to believe that anyone inside the van or using the van on March 26 th was associated with the residence. All members of the police were on the same radio channel. Soon after the applicant was stopped and arrested by patrol officers on March 26 th , Sgt. Naidu was at the scene of the arrest. He said he was at the scene at 12:35 and seized keys from the vehicle and also seized identification documents of the applicant. He said the keys were in the ignition of the red van when he seized them. He gave these keys to Cst.

McKie of the drug section. At the Delta Police office Sgt. Naidu used the telephone to contact legal aid for the Nguyen at 19:06 hours. Sgt. Naidu said he did not know if Nguyen was the same person as the man who had been arrested earlier at the road side. Sgt. Naidu had prepared the release documents, and he said he was satisfied that Nguyen had been provided with access to counsel while in custody awaiting release. [ 11 ] Constable Strandt was in training as a new officer in March 2009. He arrested the applicant, as part of his duties as a uniformed patrol officer on March 26 th .

His supervising officer that day was Constable Uppal. The drug

section assigned the task of stopping a red van, license 099 LDS. The applicant was the driver. Cst. Strandt photographed and fingerprinted the applicant. The original arrest at road-side had been for the offence of theft of hydro. After a CPIC computer check revealed a driving prohibition, the second arrest was conducted for the Motor Vehicle Act offence. At 12:32 hours, Cst. Strandt provided the applicant with his

section 10(

a) and 10(

b) rights information. The applicant said he understood and he wanted to call a lawyer. Cst. Strandt recalled that the applicant was interviewed at the road-side briefly by a drug

section officer. The access to counsel was provided by Cst. Uppal, as Cst. Strandt recalled. The patrol officers transported the applicant from the scene of his arrest at 13:14 hours and arrived at the Delta Police office at 13:48. Cst. Strandt

also assisted in accessing the telephone for the applicant to leave a message for his counsel at 15:04 hours. Constable Strandt said the instructions from the drug

section that afternoon had been to stop the red van, 099 LDS, and identify the driver. The instructions to arrest came after the stop. The stop was at 12:27, the arrest was at 12:28. The second arrest for prohibited driving was at 12:51. Cst. Strandt recalled that Sgt. Naidu was talking to the applicant at the road-side arrest location for some portion of the time between 12:31 and 12:54. The conversation between the applicant and Sgt. Naidu was longer than one minute. Cst. Strandt’s evidence was not entirely clear on the question of whether the instructions from the drug

section were to stop the vehicle and arrest the driver, or if the instructions were to stop, and identify, with subsequent instructions to arrest. [ 12 ] Constable McKie said he was a member of the Delta Police drug

section search team on March 26 th . He was given keys to the house at 9070 – 119A Street by Sgt. Naidu. Cst. McKie said Sgt. Naidu told him the keys had been seized from a male who was seen leaving the house by the front door. Cst. McKie gave these keys to Cst. Gallamore, who used them to open the front door of the house when the search warrant was executed. [ 13 ] Constable Uppal was the supervising or training officer for Cst. Strandt. He was present for the vehicle stop and arrest of the applicant. Although Cst.

Uppal believed the original arrest of the applicant was for the M.V.A . offence of driving while prohibited, it seems likely he was mistaken on this point. The arrest was originally for theft of hydro, based on the surrounding circumstances and evidence of officers directly involved. Cst. Uppal described a request from Nguyen at 15:00 to contact his legal counsel of choice. Cst. Uppal called the lawyer’s office and left a message with a secretary. He told Nguyen he had left the message. Cst. Uppal was not involved in the investigation after this point and did not follow up on the access to counsel.

He agreed with the suggestion that Sgt. Naidu may have directed an arrest for hydro theft as a part of the vehicle stop. He agreed that Cst. Strandt was more directly involved in the arrest and had more contact with Nguyen at the road-side stop. Cst. Uppal described Nguyen as polite and co-operative. There were no officer safety issues from his behaviour after the initial stop and arrest. Cst. Uppal had a photo of the applicant in his notebook. This was obtained while dealing with Nguyen prior to his release from custody. Cst. Uppal agreed with the suggestion that Sgt.

Naidu attended at the road-side stop and arrest location. After Cst. Uppal left the message for counsel regarding the applicant’s in-custody request for legal advice, he did not know what happened in response to the message. The Law [ 14 ] I have considered the cases provided by counsel, including R. v. Whitaker, R. v. Huynh, R. v. Comacho, R. v. Orr, R. v. Trieu, R. v. Pham, R. v. Hoang, R. v. Caron . In addition, I have considered the recent decision of the B.C. Court of Appeal, R. v. Spence , 2011 BCCA 280 .

The requirements for a lawful arrest involve subjective and objective evaluation of the grounds for arrest. The probability of the commission of an offence by the accused must be assessed in light of the experience and knowledge of the arresting officer, as well as a measured analysis in an objective assessment of the likelihood that an offence has been committed by the accused. In this case, the B.C Hydro letter sets in motion a series of events.

None of the investigatory steps taken in the short period of time, slightly less than 24 hours, between the receipt of the Hydro fax letter and the arrest of the applicant add significantly to the original report of suspected theft of electricity. Although the investigation moved very quickly from the initial report to the arrest of the applicant and execution of the search warrant, it has not been shown that exigent or dangerous circumstances were dictating a rapid

schedule in this instance. I find that the investigatory steps did not provide a stronger or clarified probability of the commission of an offence by anyone, including the applicant. The observations of the applicant, as the man leaving the front door and placing the garbage in a can, as well as his dealings with the front door mechanism and entry into the red van seen at the premises one day before, do not create an objective basis to conclude that an offence had probably, or more likely than not, been committed by this individual.

Even on the balance of probabilities, a standard less than required for a lawful arrest, I find that the arrest was not supported by objectively ascertainable criteria. It seems clear from the evidence and case law that the arresting officer in this case relied upon, and was entitled to rely on, the opinion of Sgt. Naidu concerning the basis for an arrest. But, I conclude that the opinion of Sgt. Naidu is not supported by an assessment of what he could have known at the time, nor is it supported by the objective analysis of the circumstances.

The use of a door key, the dealings with a bag of garbage, may have come to Sgt. Naidu over police radio transmissions. It is not established in evidence that this did occur. But even if it did occur, I find that the evidence strongly supports a different

interpretation: that Sgt. Naidu instructed patrol officers to arrest anyone who was seen leaving the house, if they were also seen to enter and depart from the area in any of the vehicles identified as associated to the house from the previous surveillance on the afternoon of March 25 th . This is simply an inadequate basis to establish the grounds for an arrest.

The brief period of time involved in these observations of vehicles by police, the uncertainty of the connection and placement of the vehicles in relation to the residence, and the lack of any sustained period of observation to indicate the level of association to the residence are unresolved sources of uncertainty.

The inferred, although not directly observed, use of a door key upon departure does not provide sufficient basis for the grounds of arrest, as a link to the house by the key is consistent with authorized entry for a myriad of persons, who may be only temporarily related to the premises for maintenance, employment or social visits. The motor vehicle is not connected to the house by registration, but by parking location. This is too limited, both in time and in purpose, to form a logical or coherent basis to assert the powers of arrest for the operator of the vehicle. I cannot infer that the B.C.

Hydro faxed letter received by the police on March 25 th is more than what it was described to be by the officers; a report of suspected hydro theft. Although it is reasonable to infer that B.C. Hydro utilizes technical methods of observation and measurement, and does not simply relay idle gossip, this reasonable assumption about the methods and purpose of a large public utility does not elevate the probative force and certainty of their brief reports to police. The report establishes a suspicion of an offence. There is no more certainty shown on the evidence at this voir dire.

As to the central question of the linkage of a specific individual to the suspected offence, the observations of the police surveillance are not sufficient to create additional probability to the original report of a suspicion. [ 15 ] An unlawful arrest is not necessarily arbitrary. If the stop of the vehicle was justified for purposes of detention, the arbitrariness of the detention following arrest may be lessened or eliminated. But here, there was little, if any, consideration of the grounds for arrest.

The direction to arrest anyone seen leaving the house, if they were using one of the vehicles seen in the vicinity of the residence one day before, is an indication that the decision to arrest was not well considered or evaluated in the circumstances of the individual applicant. I conclude that the detention following arrest was arbitrary and in violation of

section 9 of the Charter . An unlawful arrest leading to an arbitrary detention creates an infringement of

section 8, as the ensuing search was unreasonable. It should be noted that the search involved some conflicting evidence that may be relevant to the availability of a remedy under section 24(2). Although Sgt. Naidu recalled that he seized the keys from the ignition of the van, and also said he could not recall the appearance of the man at the road-side arrest scene or compare that man to the man held in Delta police cells later that day, there is evidence from the other officers at the scene

suggesting that a drug

section member, possibly Sgt. Naidu, was involved in a brief form of interview or conversation of some kind with the applicant at the arrest location. The keys were understood by other officers to have been seized from this applicant, rather than from the ignition, although the evidence is not clear or sufficient to make any finding as to the precise location of the keys when seized. It is suggested by some of the evidence that the applicant was the subject of some direct form of questioning by a drug

section member at the road-side arrest location, but it is not possible to be certain if this occurred and if so, who was involved. [ 16 ] The delay in implementing the

section 10(

b) rights to counsel are inexplicable in this case. After the initial stop and arrest of the applicant, the concerns as to officer safety were reduced or eliminated entirely. A phone call at the road side to counsel of choice seems to be a feasible option, subject to the police investigation needs to control the telephone access and verify the call was placed directly to a lawyer’s office. The decision to wait until arrival at the police office is not unusual, but becomes problematic in this case, due to the long delay between arrival and access to a phone.

There is nothing to suggest the applicant contributed to the delay once he arrived at the police office. He was described as polite and co-operative. But the booking process and identification procedures were not a sufficient explanation for delays from arrest at 12:28, arrival at police office at 13:48, message for counsel at about 15:04, follow up by another officer at 19:06 and finally contacting counsel through legal aid at 19:15.

Although this period is not identified as a means of influencing the applicant to provide incriminating evidence, it is an indication of a casual and almost random series of efforts to implement the request to speak to counsel that was expressed at 12:32 and was never subsequently withdrawn or qualified in any way by the applicant. I find that

section 10(

b) was violated by the unjustified and prolonged period of delay in accessing counsel. [ 17 ] The potential remedy for violations of Charter protected rights mandates an analysis of whether the evidence sought to be excluded was obtained in a manner that infringed or denied the applicant’s rights. If the admission of the evidence would bring the administration of justice into disrepute, the evidence must be excluded. The R. v.

Grant decision requires the Court to assess and balance the effect of admitting the evidence obtained as a result of the Charter breach on society’s confidence in the justice system, while considering these factors: (1) the seriousness of the state conduct which caused the breach; (2) the impact of the breach of the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

There is a clear direction in Grant to also include consideration of additional factors, including: − extenuating circumstances; − police acting in good faith, although negligence or wilful blindness cannot equate to good faith; − whether the breach is wilful or flagrant; and − whether there was a pattern of abuse of Charter rights. [ 18 ] In the circumstances of this case, the decision to arrest was made by an experienced police officer. I have concluded it was not objectively or subjectively reasonable to arrest the applicant.

After that police decision, there are indications that no urgent or extenuating circumstances arose to justify any departures from Charter mandated requirements. There was not an emergency at the residence prior to the search warrant execution, and this applicant was not presenting any form of alarm or heightened safety concern beyond the usual initial concerns at the first police intervention. The uncertain evidence of police efforts to interview the applicant or obtain evidence from him at road-side is inconclusive, but there is not a basis to find good faith here.

I conclude that there was a wilful action to arrest and investigate this applicant, regardless of the strength of any inferences or probabilities of his involvement in the commission of an offence. The subsequent arrest for a Motor Vehicle Act offence is not a relevant factor and does not lessen the inference that the police actions were wilfully undertaken without regard to issues of Charter compliance. The pattern of breaches here is extensive, from the arrest to the road-side evidence gathering to the inexplicable delays in implementing the access to counsel.

The applicant did not actively contribute to these delays, but I cannot find the applicant should have done more, when it is reasonable to conclude he was held in custody in a police holding cell throughout this period of delay at the police office. The public interest in the adjudication on the merits of this case would likely support the admission of the evidence that is the subject of this application.

But the public is also interested in preserving confidence in the rule of law. [ 19 ] I consider the state conduct here forms a pattern within this investigation of expediency or short-cuts, leading to a deviation from practices that are well-known and long established police responsibilities in ensuring access to Charter protected rights. What I have termed expedient are measures that were likely taken without any animus or malevolence to an individual accused person.

But these measures, to effect an unlawful arrest, to utilize that arrest in an evidence gathering process, probably to facilitate the execution of a lawful search warrant, and to delay or ignore the implementation of access to counsel, engages this Court in a consideration of the need to clearly dissociate the courts from such sustained and purposeful conduct.

I have concluded that the evidence sought to be excluded by the applicant must be excluded from evidence at trial, including: identification evidence, cards, fingerprints, photographs, statements as to identity, and subsequent identification, including in court identification, as that identification is based on the actions of the applicant in identifying himself to police when stopped and arrested on March 26, 2009, at 12:27 and following; and evidence of a key seized from the applicant or from the ignition of a vehicle operated by the applicant on March 26, 2009; and any statements made by the applicant to police when stopped, arrested or processed in custody at the police station.

_________________________________ The Honourable Judge J. D. Bahen Provincial Court of British Columbia