R. v. Pipping and Summers Date:, 2018 BCPC 10

Citation: R. v. Pipping and Summers Date: 20180112 2018 BCPC 10 File No: 213677-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. SCOTT THEODOR PIPPING and ADAM ROSS SUMMERS RULING ON SECTION 24(2) APPLICATION OF THE HONOURABLE JUDGE G.S. GILL Counsel for the Crown: J.M. Le Dressay Counsel for the Defendant Pipping : N. Cobb and R. Basra Counsel for the Defendant Summers : M. Sandhu Place of Hearing: Surrey , B.C. Date of Hearing: December 6, 7, 2017 Date of Judgment: January 12, 2018

INTRODUCTION [1] The accused, Pipping and Summers are each charged with 27 counts on various dates in the months of January, February andMarch 2016 with various offences alleging trafficking as well as possession for the purpose of trafficking in narcotics. [2] This ruling addresses the defence application for exclusion of evidence pursuant to s. 24(2) of the Charter. [3] An earlier ruling, Voir Dire No. 1 (unreported and dated March 3, 2017) upheld the validity of a General Warrant relied on toobtain a search warrant at the Prenter St. location but nonetheless invited further submissions at this s. 24(2) stage of the hearing. [4] In a subsequent ruling, Voir Dire No. 2 reported at [2017] B.C.J.

No. 2532, I concluded that: 1. The search warrant in respect of the Surrey property was invalid, resulting in a warrantless search of that residence infringingthe s. 8 Charter rights of the accused to be free from unreasonable search and seizure; 2. The search warrants in respect of the Richmond and Prenter St. properties were valid, after excision and amplification of theInformations to Obtain (ITOs); 3. The police breached the s. 8 Charter rights of the accused arising from the late filing of the required Form 5.2 reports to aJustice; 4. The police breached the s. 10 (

b) Charter rights of the accused arising from a delayed access to counsel. [5] In addition to dealing with the s. 24 (2) issues arising from the aforementioned Charter breaches, this ruling will also addressresidual issues from my ruling in Voir Dire No. 1.

Despite that Warrant having been upheld, this ruling will further address the absenceof the notice clause in the General Warrant as well as an additional issue now raised by defence regarding the failure of the Warrant tomore specifically limit the parameters of the search to be authorized, thereby going to the warrant’s facial validity. [6] Some material was excised from the ITOs in support of the search warrants. None of the warrants were invalidated based onthese excisions. Regardless, those excisions must now also be examined with reference the s. 24(2) analysis.

See in this regard R. v.Lauriente, 2010 BCCA 72: [47] The court in Goldhart, however, rejected the argument raised by the Crown on this appeal that the fact a warrant obtained usinginformation obtained in breach of Charter rights was subsequently upheld as valid operated as an intervening event severing the nexusbetween the breaches and the evidence obtained as a result of the search. At para. 39 of Goldhart, Sopinka J., speaking for the majority,stated: In R. v. Grant (1993), (SCC), 84 C.C.C. (3d) 173, [1993] 3 S.C.R. 223, 24 C.R. (4th) 1, R. v.

Wiley (1993), (SCC), 84 C.C.C. (3d) 161, [1993] 3 S.C.R. 263, 24 C.R. (4th) 34, and R. v. Plant (1993), (SCC), 84 C.C.C. (3d)203, [1993] 3 S.C.R. 281, 24 C.R. (4th) 47, the information obtained as a result of unconstitutional warrantless perimeter searches wasincluded in the material upon which the police relied to obtain search warrants. While it was material before the issuing justice, thiscourt concluded that if the illegally obtained information were expunged from the affidavits presented to the justice, the residue was asufficient basis for the issue of the warrants. The warrants were, therefore, valid.

The searches were, however, tainted by illegalwarrantless searches which formed an integral part of a single investigatory transaction. The temporal and tactical connections weresufficiently strong to permit the court to conclude that it was not realistic to view the perimeter searches as severable from the totalinvestigatory process.

In these cases, given the strength of the factors that I have mentioned, it was not necessary to consider specificallythe strength of the causal connection. [Emphasis added.] In other words, the fact that the validity of the warrant was ultimately upheld did not sever the connection between the breach and theimpugned evidence. [48] In R. v. Grant, (SCC), [1993] 3 S.C.R. 223, (1993), 84 C.C.C. (3d) 173 ("Grant, 1993"), the same point wasemphasized by Mr.

Justice Sopinka, speaking for the court, at pp. 254-55 of the decision: The Crown argued that to the extent that the searches were reasonable within the meaning of s. 8 of the Charter, in that the issuing justicecould properly have allowed the warrant to issue even without the information gleaned through the warrantless perimeter searches, thereshould be no consideration of exclusion pursuant to s. 24(2) of the Charter.

I disagree with that submission on the basis that aninfringement of s. 8 of the Charter has occurred in the investigatory process in the case at bar, quite apart from the fact that a reasonablesearch was undertaken subsequently pursuant to a valid warrant.

LAW [7] Section 24(2) of the Charter provides as follows: 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [8] Counsel for the Crown and the Accused placed before me a large volume of case authorities.

While I have not referred to eachof them in these Reasons, I have read and consider all of them. They are listed in the Appendix to these Reasons. [9] In R v. Grant, 2009 SCC 32, the Court laid down a revised framework for a s. 24(2) analysis. Pursuant to that decision, stateconduct infringing Charter rights of an accused is to be measured under three lines of inquiry, having regard to the seriousness of the

Charter infringing state conduct, its impact on the protected interests, and then weighed against society’s interest in adjudication on themerits to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justiceinto disrepute. [10] The focus under s. 24(2) is not on punishing police or compensating the accused.

What is meant by “bring the administration ofjustice into disrepute,” was explained in para 68 of Grant, [68] The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by admission of the evidence.

The inquiry is objective. It askswhether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute. [11] In R. v.

Wong, 2010 BCCA 160, the Appeal Court at paras 28 to 31 set out important principles articulated in Grant: [28] After addressing trial fairness, the Court in Grant turned to clarifying "the criteria relevant to determining when, in 'all thecircumstances', admission of evidence obtained by a Charter breach 'would bring the administration of justice into disrepute'".

TheCourt articulated three avenues of inquiry stating: [71] …When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidenceon society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interestsof the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of thecase on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry todetermine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s.24(2) determination as enunciated in Collins and subsequent jurisprudence. [29] As to the first avenue of inquiry, the Court observed: [72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence wouldbring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for theadministration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits ofthat unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for thecourts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence inand ensure state adherence to the rule of law. [74] State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtainedthrough inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other endof the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negativeeffect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [75] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of policeconduct that results in a Charter breach: R. v. Silveira, (SCC), [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the partof the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charterstandards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3, at pp. 32-33,per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those verypersons who are charged with upholding the right in question may require that the court dissociate itself from such conduct.

It followsthat deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also bekept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because theydid not turn up relevant evidence leading to a criminal charge.

In recognition of the need for courts to distance themselves from thisbehaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion. [30] Concerning the second avenue of inquiry the Court stated: [78] ... an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, humandignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or thatdemeans his or her dignity, is more serious than one that does not. [31] The Court's comments on the third avenue of inquiry include these observations: [81] ... public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is animportant factor in this line of inquiry.

If a breach (such as one that effectively compels the suspect to talk) undermines the reliability ofthe evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused'sinterest in a fair trial nor the public interest in uncovering the truth.

Conversely, exclusion of relevant and reliable evidence mayundermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing theadministration of justice into disrepute. ... [83] The importance of the evidence to the prosecution's case is another factor that may be considered ... the exclusion of highly reliableevidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[12] R. v. Robertson, 2017 BCSC 965 provides a useful and comprehensive

summary of pertinent principles guiding a s. 24(2)analysis. The weighing process, in particular, is described at para. 23: [23] These factors do not operate as a three-part test. There are no particular findings under the three lines of inquiry that mandateparticular results, and it "is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case" (R.v. Harrison, 2009 SCC 34 at para. 36). The balancing mandated by s. 24(2) is "qualitative in nature and therefore not capable ofmathematical precision" (Grant at para. 140).

Rather, the court must weigh its considerations under all three factors to determinewhether, on balance and having regard to all the circumstances, admitting the impugned evidence would bring the administration ofjustice into disrepute in the long-term, from the perspective of a reasonable person (Grant at paras. 68 and 85-86; R. v. Côté, 2011 SCC46 at para. 48). I will describe each factor in further detail below. [13] In R. v.

Harrison, 2009 SCC 34 , 2009 SCJ No. 34, the arbitrary detention and arrest of the accused at the road side,followed by an unlawful search of the car incident to arrest was found to constitute serious breaches, but mitigated because themisconduct was not as a result of any deliberate plan to breach the Charter and was not indicative of any systemic or institutional patternof abuse and the detention itself being brief, not physically coercive and involving the relatively lower privacy interests associated withthe search of a motor vehicle.

It was further noted that part of the officer’s evidence had actually been misleading, an important factor inthe first branch of the s. 24(2) test. The impact on the accused’s protected rights to privacy in his car, while not egregious wasnonetheless described as significant. [14] The court in Harrison concluded that despite the finding of 35 kg of cocaine in the car being a very serious matter, it should notbe given disproportionate significance in the weighing process.

Under all of the circumstances its exclusion from the trial was deemedjustified. [15] State conduct can also be characterized as being exercised in bad faith, good faith or somewhere in between. In Grant, supra,the court at para. 75, equated good faith to the kind of police conduct that reduced the need for the court to disassociate itself from,keeping in mind that ignorance of Charter standards should not be rewarded or encouraged and that negligence or wilful blindnesscannot be equated with good faith. [16] Good faith can sometimes be found to exist despite police carelessness. In R. v.

Wong, supra, police prepared an ITOcontaining a significant error by wrongly stating the accused had been arrested at another residence where a drug lab had been found. The error was significant enough that the search warrant could not stand without this information. Despite this error being significant,and being of their own making, police nonetheless believed they were searching pursuant to a valid warrant and the error in the ITO wasupheld as an honest, inadvertent or careless mistake and done in good faith. [17] In R. v.

Caron, 2011 BCCA 56 the Appeal Court discussed the concepts of good faith and bad faith at para. 38: [38] "Good faith" and its polar opposite, "bad faith" (or "flagrant" disregard), are terms of art in the s. 24(2) lexicon: Kokesch at 30. The absence of bad faith does not equate to good faith, nor does the absence of good faith equate to bad faith. To fall at either end of thisspectrum requires a particular mental state. In discussing these two concepts in R. v. Smith, 2005 BCCA 334, 199 C.C.C. (3d) 404,Madam Justice Ryan stated: [61] To sum up, good faith connotes an honest and reasonably held belief.

If the belief is honest, but not reasonably held, it cannot besaid to constitute good faith. But it does not follow that it is therefore bad faith. To constitute bad faith the actions must be knowingly orintentionally wrong. [Emphasis added.] [18] In R. v. Paterson, 2017 SCC 15 , [2017] 1 SCR 202, police improperly entered a private dwelling relying on urgentcircumstances, when none were found to have existed. The resulting breach involved an intrusion infringing the highest expectation ofprivacy and having significant impact on the protected interests.

At para. 44 the court said this about police acting in good faith: [44] My colleague Moldaver J. recalls the trial judge's finding that the police were acting in good faith (para. 66; trial reasons, at para.79). While "'[g]ood faith' on the part of the police will ... reduce the need for the court to disassociate itself from the police conduct"(Grant 2009, at para. 75), good faith errors must be reasonable (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59). This Courthas cautioned that negligence in meeting Charter standards cannot be equated to good faith (Grant 2009, at para. 75).

Even where theCharter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted forclear violations of well-established rules governing state conduct (R. v. Harrison, 2009 SCC 34, , [2009] 2 S.C.R. 494, at paras.24-25). [19] In assessing the second branch of the test, the court noted that just as with assessing the seriousness of the breach under the firstbranch, the impact of the breach can fall on a spectrum: [76] … The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact onthe accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, howeverhigh-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [20] Grant also indicates, at para. 86 that the weighing required by s. 24(2) is a flexible and not a mathematical exercise. ANALYSIS - VOIR DIRE NO. 2 [21] The Crown tendered expert testimony regarding the narcotics discovered at the three locations searched by police.

As well, theparties filed qualified admissions of fact outlining the items found and seized incidental to the arrest of the accused and at the threeproperties. [22] Evidence gathered from the Surrey location included fentanyl/heroin, heroin, cocaine, and oxycodone pills having an estimatedstreet value of $129,880. Police also found over $1,500,000 in cash and firearms, some of them loaded.

[23] Evidence gathered from the Richmond property included the narcotics furanyl fentanyl, fentanyl/heroin, heroin, cocaine,oxycodone pills, ketamine and methamphetamine having a total estimated street value of $14,170. [24] Evidence gathered from the Prenter St. location included the narcotics furanyl fentanyl, fentanyl, fentanyl/heroin, heroin,cocaine, W18 and methamphetamine having a total estimated street value of $1,366,160. There was also a collection of cutting agentsand other chemicals such as acetone, acetic acid and dimethyl sulfoxide and a number of firearms, a firearm silencer, and ammunition.

Some of the firearms were loaded. There were also a number of kitchen blenders, bottles of flavoring and food coloring, a discolouredkitchen stove containing a fry pan of white material in the oven, and a large press that could be used to make kilogram sized bricks.

Photographs of the Prenter location depict what is essentially a drug manufacturing, storage and assembly lab in a residential complex,and having sufficient health and safety concerns associated to toxicity of some of the items that police were required to take specialprecautions, including consultations with Health Canada in the course of handling them. [25] Evidence seized from the searches incidental to the arrest of both accused included 7 cell phones and the keys to the above-noted properties.

THE SURREY RESIDENCE [26] I will next address the s. 8 Charter breach found in connection with the search of the Surrey residence.

Although that searchwas conducted pursuant to a warrant, I concluded the ITO did not set out a credibly based probability on which the issuing Justice couldhave granted the authorization, that evidence of the alleged crimes would be found in the subject premises, thereby rendering the searchwarrantless. [27] In light of this finding, both Crown and Defence counsel have invited that the court consider excluding all of the evidenceobtained as a result of that search. [28] The reason the warrant was invalidated was solely due to an insufficient credibly-based probability upon which the authorization could have issued.

Importantly, there were no findings of police misconductand, to the contrary, I find the police were acting in good faith, having presented to the authorizing justice a body of material, includingpossibly material subsequently redacted to protect informants, and upon which the issuing justice had concluded a warrant could issue. [29] As noted in Grant, any evaluation part of the s. 24(2) analysis requires a consideration of the privacy interests involved: [113] With respect to the second inquiry, the Charter breach most often associated with non-bodily physical evidence is the s. 8protection against unreasonable search and seizure: see, e.g., Buhay.

Privacy is the principal interest involved in such cases. Thejurisprudence offers guidance in evaluating the extent to which the accused's reasonable expectation of privacy was infringed. Forexample, a dwelling house attracts a higher expectation of privacy than a place of business or an automobile. An illegal search of ahouse will therefore be seen as more serious at this stage of the analysis. [30] In R. v. Silveira, (SCC), [1995] 2 S.C.R. 297 the Court described the sanctity of a private dwelling as follows: [148] The police, without warrant or authority, entered a dwelling-house.

This was not a simple perimeter search as in Kokesch, but anentry into the dwelling itself. It is hard to imagine a more serious infringement of an individual's right to privacy. The home is the oneplace where persons can expect to talk freely, to dress as they wish and, within the bounds of the law, to live as they wish. Theunauthorized presence of agents of the state in a home is the ultimate invasion of privacy. It is the denial of one of the fundamentalrights of individuals living in a free and democratic society.

To condone it without reservation would be to conjure up visions of themidnight entry into homes by agents of the state to arrest the occupants on nothing but the vaguest suspicion that they may be enemies ofthe state. This is why for centuries it has been recognized that a man's home is his castle. It is for this reason that the Narcotic ControlAct prohibits entry into a private dwelling-house without a warrant and it is for this reason that a search warrant must be obtained from ajudicial officer on the basis of reasonable and proper grounds.

Despite the historical importance attached to the privacy interest of anindividual in his or her home, and the significance attached to a dwelling-house by s. 10 of the Narcotic Control Act, the police enteredthe appellant's home without a warrant. [31] Despite the presence of good faith, a warrantless search involving a private dwelling heavily impacts long-standing privacyinterests that are recognized as being amongst the highest order. [32] Notwithstanding good faith in the obtaining and execution of this search warrant, and the narcotics, firearms and large amountof cash found pursuant to it, I agree with the submissions of all counsel that this evidence, clearly collected in a manner that seriouslyinfringed Mr.

Pipping’s privacy interests protected by s. 8 of the Charter, must be excluded to preserve the long term public confidencein the rule of law. I conclude that to admit it, even in support of what are serious charges faced by the accused, would bring theadministration of justice into disrepute. THE BREACH OF RIGHT TO COUNSEL [33] At paras. 182 to 212 of Voir Dire No. 2, I concluded that police breached Mr. Pipping and Mr. Summers right to counselpursuant to s. 10(

b) of the Charter. The accused were arrested at the side of the road at 1432 hours. After allowing for delayed accessto counsel for a period of time to allow for evidence preservation and officer safety, I found that the delay resulting in infringement ofthe right occurred between 1500 hours until 1709 hours when the first call to counsel was facilitated at the main RCMP detachment inSurrey. [34] The Charter infringing delay is for a period of approximately two hours and nine minutes.

In my prior ruling I concluded thatthis police operation, despite being justifiably regarded as a high-risk arrest and search precluding immediate access to counsel, wassufficiently scripted such that this script could and should have also included better planning for such access when such access could beprovided.

[ 35 ] Regarding the nexus between this breach and the evidence gathered, it is now clear that this link is not limited to being only causal but can include other modes such as, for example, temporal or contextual connections. [ 36 ] In R. v. Bohn , 2000 BCJ No. 867 the Appeal Court concluded that the temporal link between the breach of the accused’s right to counsel, arising from the delay in transporting him from his residence to the police detachment, and the gathering of evidence of a grow operation at his residence was a sufficient nexus to trigger a consideration under s. 24(2).

That link, combined with a breach of his s. 8 Charter right arising from police failure to produce a copy of the warrant at the time of its execution as required by s. 29 of the Criminal Code , was determined to be a sufficient basis to exclude the evidence of the grow operation. I note that Bohn employed a pre- Grant analytical framework and involved the police failure to better consider facilitating access to counsel at a residence, as opposed to a busy roadside as in the present case. [ 37 ] In R. v.

Chaif-Gust , 2011 BCCA, a breach of the accused’s s.10 right to counsel arose during his 42 minute detention in the back of a police van while a search warrant was being executed at the location he had just left. Despite this breach being described as serious and flagrant, the trial judge’s decision to admit the evidence was upheld given its minimal impact on the accused and the strong societal interest in a merits based adjudication using reliable evidence. [ 38 ] In R. v.

Ly , [2012] BCSC 504, Barrow J admitted evidence of a marijuana grow operation despite breach of the accused’s s.7 Charter right arising from a police dog bite during the search, his s.8 Charter right arising from police having improperly brought him back to the search property to find his identification, his s.10 Charter right arising from a 9-hour delay in advising of his right to counsel in a language he could understand and his s.9 Charter right arising from delay in having him brought before a Justice of the Peace. [ 39 ] At para. 77, and relying on the guidance provided by Cromwell J in R. v.

Cote , the court observed that although a causal or even temporal link between any breach or breaches and the evidence at issue is not needed, the absence (or the strength, I would infer) of any such links must still be considered in the first two components of the Grant analysis. [ 40 ] In R. v.

LeFaive , 2015 BCJ No. 3063 , regarding the Charter breach application and 2015 BCSC 1284 regarding the Charter s. 24(2) application, an accused found sleeping in a car stopped at the side of the road was approached by an officer who observed in plain sight a messy interior and a large bundle of currency in the centre console, along with several cell phones and what he felt was a strong odor of vegetative marijuana. The court, finding the officer to have had insufficient grounds to arrest, determined the arrest to be in violation of the s.9 Charter right of the accused.

The subsequent search of the car and taking of fingerprints, all being incidental to the unlawful arrest, were thereby found in breach of s. 8 of the Charter . [ 41 ] The court also found a breach of the accused’s s.10 Charter right to counsel, arising from a 26-minute detention of the accused in the back of the police cruiser while the officer searched his car before even advising him of his right to counsel.

This was aggravated by access to counsel being then provided without sufficient privacy, the officer holding a phone to the ear of the accused as he sat in the police car, and finally by the officer asking the accused questions before the right to counsel had been fully implemented. [ 42 ] It is important to note that despite the Crown in LeFaive not seeking to tender the results of the warrantless search of the accused’s cell phone, the police conduct still constituted a Charter breach requiring consideration as part of the s. 24(2) analysis providing there was a sufficient nexus between that conduct and any evidence the Crown did otherwise seek to tender. [ 43 ] In R. v.

Pino , the accused was placed in a cell without access to counsel for nearly five and one half hours after her arrest, conducted by police in an aggressive fashion which they were found to have lied about. While a portion of the time she was isolated in cells was determined to have been connected to protecting the integrity of the search of a residence, almost 3 hours of it was not, the trial judge having observed that police were quick to initially suspend her right but were far less focused on later ensuring its implementation, and constituting a serious breach of her s.10 Charter right to counsel.

This temporal connection between the s. 10 Charter breach and the collection of the evidence from the search was determined to be sufficient to trigger the application of s. 24(2), on the basis that the nexus was found to be not too remote and occurred in the course of a single transaction. For the purposes of establishing the existence of the required nexus, it mattered not whether this temporal breach occurred before or after the discovery of the evidence. [ 44 ] In R. v.

Wong and Truong , 2017 BCSC 1643 , evidence of a methamphetamine lab and loaded firearms was excluded on the basis of 8 Charter breaches, summarized at para. 13: [13] And so it is we arrived at the present omnibus application under s. 24(2) of the Charter to determine an appropriate remedy for the eight Charter breaches found to have occurred in this case as well as for additional police "misconduct" alleged by the accused. For ease of reference, the breaches include: • covert video surveillance of the accused's backyard; • swabbing of Mr.

Wong's vehicle; • the search of the garage at the accused's residence; • the unlawful arrest of Ms. Truong; • the unlawful search of Ms. Truong incidental to her arrest; • the search of Mr. Wong's cell phone incidental upon his arrest; • the search of data within the electronic devices seized following execution of the search warrant at the accused's residence; and • the continued detention of seized property following non-compliance with the Form 5.2 procedures set out in the Code .

[ 45 ] In Wong and Truong , the accused were arrested at their residence under circumstances where the Court rejected any notion that the delay in their resulting access to counsel was due to any concerns for officer safety or evidence preservation. That delay extended from the time of their arrest until sometime later, during which time they were held totally incommunicado for over 14 hours before access to counsel was allowed. Evidence was improperly sought to be elicited from one of the accused immediately after he was informed of his right to counsel, and after his clear assertion of that right.

The breach of right to counsel for the other accused was further aggravated by the fact that her arrest triggering that right was also found to have been unlawful. The explanation by the police in attempting to justify this conduct was found to be dissembling and the breaches to be wilful and flagrant. This case involves breaches of Charter rights found to be far more serious and impactful than the index matter. [ 46 ] Having regard to the foregoing cases I conclude there to be a sufficient temporal nexus in the index case, between the collection of the evidence and the breach of the s. 10(

b) Charter right, the two events occurring essentially concurrently and between roughly 1500 hours until 1709 hours on the date in question. [ 47 ] Having regard to the seriousness of the resulting breach, it bears recognition that the absence of a better plan to facilitate access to counsel cannot be fairly equated to there being no plan for such access.

It would appear on the evidence that from the time they left the arrest scene, until access was actually provided, the police officers accompanying the accused were engaged in no other activity other than transporting the accused to the detachment where that access would be provided. [ 48 ] That they facilitated access to counsel inefficiently should not be equated with police deliberately impeding access to counsel, or with having no plan to facilitate it whatsoever. While in the course of completing that task, police did not seek to elicit any evidence from the accused, by way of statements or otherwise.

At all times from their departure from the arrest scene, following the search and securing of the accused which necessarily took some time, both accused could have been under no other reasonable impression than that they were being transported directly to the detachment where they could exercise that right. [ 49 ] I regard the seriousness of the Charter breach as not being anywhere close to the high end of the range. The police conduct in not having a better plan does not constitute bad faith and is, at worst, careless or with insufficient attention to detail. Access to counsel was not denied, but delayed.

The seriousness of this breach in my view falls considerably below the middle of the range. [ 50 ] The impact arising from the s.10 breach must be considered. In R. v. LeFaive , the court noted at para. 8 that: Further, it is impossible to know what conversation the accused might have had with his lawyer 26 minutes earlier and what advice he might have received and how any of that might have, if at all, impacted upon the search or perhaps on the decision of the officer to leave the accused in the vehicle.

Those are not things that we know or are entitled to know or speculate about. [ 51 ] On the question of impact arising from breach of a s.10 Charter right, I agree one ought not to speculate what advice an accused may or may not have received had such access been more timely facilitated.

Equally, however, it would be wrong to necessarily assume high impact where none has been specifically identified. [ 52 ] It seems that the conduct in LeFaive was particularly serious because of the manner in which evidence was gathered, all the while no attempt being made to even inform the accused, while he was confined to the police car, of his right to counsel, much less to implement it.

Indeed, the court concluded that while the s. 8 breaches, involving no finding of bad faith, were on their own insufficient to merit exclusion, the manner in which the additional breach of the s.10 Charter rights of the accused was committed required the s.24(2) remedy. [ 53 ] The impact of this Charter infringement on the protected interests of the accused before the Court is similarly at the lower end of the range. There is no evidence the accused were in any way mistreated.

They were advised of their right to counsel immediately upon arrest and were also at that time told such right would indeed be delayed, and why and for how long it would be delayed.

It is reasonable to infer they would have realized such access would, for those reasons, likely not be occurring at the roadside. [ 54 ] Unlike in some of the cited cases, the accused were not forced to wait while police were engaged in other activities but rather all of their dealings, including transport to the detachment was a commonly recognized and necessary process including booking in, all of which took longer than anticipated because of the heavy traffic en route, and the line-up at the booking counter, which of course could have been avoided with better planning to expedite transport and booking in procedures.

The accused were placed in cells only after counsel access had been implemented. THE FORM 5.2 BREACH [ 55 ] I will next address the s. 8 Charter breach found arising from the late Form 5.2 filings. [ 56 ] In R. v. De Bortoli , 2012 BCJ No. 2233 , the police, having lawfully obtained blood samples from an accused failed to renew the detention order facilitating the blood analysis. In rejecting the Crown submission that the breach was merely technical, the court at para. 115 observed that under Grant, state misconduct can still be considered serious even if it is not intentional or malicious.

Having regard to the balancing required under s. 24(2) and given the item in question involved bodily substances and its resulting impact on the Charter protected interests of the accused, the evidence was excluded despite its reliability and relevance to the Crown’s case and the societal interests in a merits-based adjudication. [ 57 ] In R. v. Paterson , [2011] B.C.J.

No. 2617 (BCSC) , Blok J. found a s. 8 Charter breach owing to the late (by over 2 months) and incomplete police filing of the required Form 5.2 reports to a Justice, which he attributed to the lack of knowledge and experience on the part of one officer as well as inattention to detail on the part of another officer who failed to follow up to ensure the report had been filed. The evidence was nonetheless not excluded pursuant to s. 24(2). [ 58 ] At para. 103 the Court observed that British Columbia cases tend to regard issues around the filing of Form 5.2 reports as largely technical:

[103] The consequences of a failure to file a 5.2 Report have been considered in a number of cases, not all of which are easily reconcilable. Davies J. undertook an extensive analysis of these cases in R. v. Martens , 2004 BCSC 1450 (" Martens ") . In that case police officers executed a warrant at the accused's residence and seized a number of items but they did not, at any time , file a 5.2 Report.

Davies J. observed that, to that date at least, courts in Ontario and Nova Scotia tended to treat the failure to file a return as being fatal to the search warrant process, while those in British Columbia tended to treat such a failure as a mere technical breach of that process. [ 59 ] At paras. 119 and 120 the Court also distinguished the difference in seriousness between a late filing and not filing at all, noting that even in the latter instance, Davies J. had declined to exclude the evidence under s. 24(2).

Paras. 122 and 123 discuss the relatively low impact on the accused, which I find of guidance to the present case. [ 60 ] The present case involves late filing as opposed to no filing whatsoever. As noted in my prior ruling, it involved approximately 1000 exhibits, some of them very dangerous, seized from a number of different locations. At least some portion of the filing delay was occasioned by the high toxicity of some of the narcotics police encountered.

The reports were ultimately filed within approximately 3 months by a police officer tasked to perform this function along with his other daily responsibilities. [ 61 ] The nexus between this s. 8 Charter breach and the evidence collected, while sufficient to qualify for a s. 24(2) analysis, is not a causal one but rather temporal, and arising well after the discovery of the evidence. No evidence is before the court regarding any specific impact of this breach on the protected rights of the accused, other than that which might be inferred from the fact of the delay itself.

I do not infer that impact to be other than low. [ 62 ] Having regard to the case authorities as applied to the circumstances of this case I regard the associated s.8 Charter breach to be at the low end of the range of seriousness and impact. POLICE MISCONDUCT ALLEGED IN THE ITOs [ 63 ] The defence submission included a number of references to findings made in earlier rulings regarding the contents of the ITOs and the police conduct referenced thereby. In those rulings I excised a number of entries sourced from a police database found to be conclusive, poorly sourced or unproven.

The majority of these entries were attributed not directly to the accused but rather to others. See in this regard para. 40 of the Ruling for the complete listing. [ 64 ] I removed from the ITOs a reference to Cst. Cessford having inadvertently seen the name of Mr. Summers associated with a particular dwelling unit on the computer screen of the manager of the Richmond property during his visit at that office. [ 65 ] I read in additional observations provided by police testimony on the voir dire that had not been included in the ITOs.

This included the observation that when police were executing the General Warrant on March 10 th , resulting in their observation of Mr. Pipping entering Unit 407 at the Prenter property with an unknown female, both of them smelled strongly of marijuana. [ 66 ] I also read into the ITOs, with reference to the application to obtain a search warrant for the Prenter property, the police observation that the accused Summers had been seen the day before keying into a particular unit at the Richmond property. [ 67 ] I accepted Cst.

Cessford’s testimony and concluded that he had simply become temporarily confused when he apparently told the Richmond RCMP that he had a warrant when attending there with the permission of the building manager to pick up a key fob for the Richmond apartment property. [ 68 ] Overall, I concluded that the above-noted reductions or amplifications were not designed to mislead the issuing justice nor did they cast any taint on the substantial body of material where it otherwise supported a credibly based probability to issue the search warrants.

THE GENERAL WARRANT [ 69 ] In an earlier ruling I found that the warrant authorizing police to observe the accused from the hallway of a condominium complex to determine which suite he was accessing was valid notwithstanding that it lacked a notice clause. [ 70 ] The parties filed qualified admissions of fact outlining the purpose for which police sought the general warrant on March 10 th , as well as details of police surveillance of the accused, Pipping, immediately prior to execution of that warrant on March 11 th . [ 71 ] The defence suggests there to a further defect on the face of the warrant in that it should have but did set out any limiting conditions, such as specifying at what times police could enter the building, where they could go within it, that the observations would not be recorded, or that it would terminate as soon as suite entry was determined. [ 72 ] I do not agree that under the circumstances of the obtaining of this General Warrant and its manner of execution, the failure to include any such limits is fatal to its validity.

The issuing Justice determined that under the circumstances of the application before him, no specific limiting terms and conditions were required and furthermore, it was in fact executed by police entirely within the parameters they sought as set out in the ITO, and nothing more.

S. 24(2) ANALYSIS PERTAINING TO THE GENERAL WARRANT [ 73 ] In the event I am wrong in my conclusion regarding the validity of the general warrant, I will also consider the question of whether the evidence, even if the warrant had been found invalid, should be excluded pursuant to s. 24(2). [ 74 ] The evidence gathered from the warrant is that of the accused, Mr. Pipping being seen entering Unit 407. That observation was relied to subsequently obtain a warrant to enter and search that unit. I find there to be a causal connection, between the police presence in the hallway and the observation of Mr.

Pipping accessing a particular suite, sufficient to trigger a s. 24(2) analysis.

[ 75 ] In R. v. Blizzard , the court excluded evidence gathered pursuant to a General Warrant lacking the mandatory provision requiring notice of the search following its execution. At para. 18 of the decision, the court relied on R. v. Mero , 2003 BCSC where Parrett J. at para. 31 excluded evidence, characterizing the notice provision as mandatory and in that case not cured by actual notice given 6 days later to the spouse of the accused. [ 76 ] It should be noted that Blizzard was decided under the s. 24(2) framework pre-dating Grant .

As well, and unlike the present case, the search authorized was not from a common hallway having very low privacy, but rather a hotel room having significantly higher privacy interests. [ 77 ] The facts in Mero also deserve closer analysis and comparison with those in the present case.

In Mero , the defects relating to the General Warrant were multiple, involving not only the lack of a notice clause but many more, as noted at para. 38 of the decision: [38] Specifically – 1) there is no authority or justification for the purported authorization of a "surreptitious entry"; 2) the warrant, on its face, purports to give to the police power greater than that provided in s. 487.01; 3) there is no authority for issuing a warrant under s. 487.01 without specific terms detailing the required notice period and terms; 4) the authorized activities in this case amounted to little more than the gathering of evidence believed to be present, and 5) the circumstances do not and cannot satisfy the requirements of s. 487.01(1)(c). [ 78 ] In R. v.

Coderre , 2016 ONCA 276 , police were required to give notice of execution of a General Warrant within 180 days. They failed to do so and also did not apply for any extension of time to do so. The Appeal Court found the police conduct in failing to give notice to be the result of a deliberate choice, but initially motivated by a desire to not jeopardize the ongoing investigation. Despite the police having failed to give the required notice even after the investigation had been completed, the court nonetheless found this to not constitute bad faith.

Furthermore, the link between the breach and the gathering of the evidence was described as arguably weak but not tenuous. [ 79 ] In R. v. Whipple , 2016 ABCA 232 , an accused was stopped in his vehicle pursuant to a General Warrant authorizing police to not inform him about their entire basis for the stop and search.

The Appeal Court noted the trial judge’s observation that even if this withholding of notice constituted a breach of the accused’s s. 8 Charter right, he was aware of the search and seizure in any event as it occurred in his presence. [ 80 ] In my view, the facts in the present case are significantly less serious and impactful than those in the above-cited cases.

In terms of seriousness, even if the police presence in the hallway were to be regarded as warrantless, it occurred in circumstances where the privacy interests of the accused, in a hallway of a condominium complex, were very low. [ 81 ] The lack of a notice clause, even if it were to have been required, is also attenuated in a number of ways.

Firstly, the very requirement of a notice clause, which was in this case connected to my finding the search to have been “covert” pursuant to s.487.01(1) (c), did not appear to have been directly considered in any prior cases and may well be subject to further development in the case law. [ 82 ] I consider the police in this respect to have proceeded in good faith, not believing their hallway presence to be covert.

And finally the impact was minimal, given the low privacy interests protected, and given that both accused were provided actual notice of the general warrant within days after its execution via disclosure by Crown counsel provided the day after they were taken into custody. [ 83 ] The search was conducted entirely within the parameters sought, restricted to a momentary, non-recorded, visual observation during reasonable hours. It is entirely possible that during this time Mr.

Pipping could have been seen by anyone in that portion of the building. [ 84 ] I do not see any of the police conduct referenced above as constituting bad faith.

They submitted information before a Justice to obtain permission to conduct a very limited search, were granted such permission and proceeded entirely in good faith within the confines of what they sought to do, and not more. [ 85 ] Overall, I would characterize the seriousness as well as the impact of any breaches, if they occurred, associated with the General Warrant to be fleeting and falling at the lowest end of the range, involving privacy interests sufficient to qualify for standing to challenge, but little more.

CUMULATIVE EFFECT OF THE BREACHES [ 86 ] The state conduct at issue must be examined both individually as well as collectively with reference to s. 24(2), including whether or to what extent it can be regarded as being indicative of a pattern indicating police disregard for Charter protected rights. [ 87 ] In R. v. Spence , 2011 BCCA 280 , Chiasson J.A. at paras. 50 to 53 provided this guidance on the matter of cumulative breaches: [50] I turn now to consider the cumulative effect of the Charter breaches. [51] In Regina v.

Bohn , 2000 BCCA 239 , this Court confirmed that consideration of cumulative Charter breaches is appropriate when undertaking a s. 24(2) analysis because it may show a pattern of disregard of the Charter . Bohn concerned a single individual. In Lauriente , the proposition was extended to multiple breaches involving the accused and others. In this case, it would have been appropriate for the trial judge to consider the s. 8 and 10(

b) violations of the rights of Mr. Neill and the violation of the s. 10(

b) rights of the appellant. It is not clear that she did so, although she did comment in para. 21 of her reasons on the second voir dire on the possible violation of the Charter rights of Jesse Charlie.[1]

[52] In Lauriente this Court recognized that whether there is a temporal connection between Charter breaches and impugned evidenceusually is addressed before considering "the significance of multiple Charter breaches on the question whether the admission of theimpugned evidence could bring the administration of justice into disrepute" (para. 22). [53] Referring to R. v. Strachan, (SCC), [1988] 2 S.C.R. 980, this Court held that a causal connection test was toorigorous, but a temporal link "while not determinative, figures prominently" in the analysis (Lauriente, para. 43). As noted by Mr.Justice Doherty in R. v.

Plaha (2004), (ON CA), 188 C.C.C. (3d) 289, 24 C.R. (6th) 360 (Ont. C.A.), it must beestablished that "[t]he impugned evidence [was] obtained "in a manner that infringed" a right under the Charter" or as was stated inStrachan, the "Charter violation occurred in the course of obtaining the evidence".

The Supreme Court also cautioned that the entireevents leading to the discovery of the evidence must be considered and that situations must be dealt with on a case by case basis. [88] I have not identified any of the police conduct in these reasons to have occurred in bad faith or with any deliberate planning orintent to mislead.

I have similarly not identified any of the breaches to be serious, having regard to the context and all of thecircumstances in which they occurred. [89] Each of the situations of impugned police conduct arose more or less independently from the others, and was explained. [90] The evidence collected, while clearly forming a nexus to the breaches, must be recognized as having varying degrees ofconnection to the evidence gathered thereby, the nexus being for the most part temporal but in some cases causal. [91] Pursuant to LeFaive, supra, even conduct relating to evidence that has been excluded or that is not otherwise being sought bycrown to be tendered due to a Charter breach must still be evaluated as part of the s. 24(2) analysis. [92] In the instance involving the search of the Surrey residence, where the nexus is directly causal to the breach and involving highprivacy interests, the result has been the exclusion of the evidence gathered thereby.

However, insofar as I have found the police conductassociated to that breach as being done entirely in good faith, it cannot, in my view, be considered to weigh significantly in respect of theconsideration of the rest of the defence application to exclude. Balancing the Factors [93] The balancing process mandated by s. 24(2) is long term and qualitative. In Harrison, supra, the court noted at para. 36: [36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision.

It is not simply a questionof whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must beweighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring theadministration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true.

In all cases, it is the long-term repute of the administration ofjustice that must be assessed. [94] As noted at para. 20 of LeFaive, [20] The balancing of the factors and of the three prongs is not a mathematical exercise. Different prongs will need to be given moreweight and emphasis on different occasions depending upon the case. This must be assessed on a case-by-case basis. [95] In R. v.

McGuffie, Doherty J.A. wrote about the process whereby the various factors under the s. 24(2) analysis should beweighed: [62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of theclaim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant.

The third inquiry, society's interests in anadjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where theevidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34. [63] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward theexclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v.

Jones, 2011 ONCA 632, 107 O.R. (3d) 241,at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom,if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli,2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion ofthe evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g.

Grant, at para. 140. [96] The impugned police conduct related to the gathering of this evidence, both in terms of seriousness and impact, when examinedcumulatively, is of some concern. However, I do not take the view that it pushes strongly towards exclusion. Moreover, even to theextent that it may merit some consideration of exclusion, it must still be weighed against the societal interests of a merits-basedadjudication, without giving undue weight to that third branch of the s. 24(2) analysis. [97] In R. v.

Wong, 2010 BCCA 160, the Appeal Court notes the role played by real evidence at para. 15, and the importance of notgiving to it a disproportionate weighing in the analysis: [15] As a result of the decisions in Grant and Harrison, trial courts have been directed to take a view of all relevant circumstances inmaking a decision about admissibility of evidence under s. 24(2) of the Charter. The distinction between conscriptive and non-conscriptive evidence set out in Stillman is no longer as significant in analyzing admissibility.

Reliability, which is often a hallmark ofreal evidence will always be a cogent consideration but will not be dispositive. … [98] The charges faced by the accused are serious. The evidence is real, reliable and important to the most serious aspects of the

Crown case. Admission of the evidence against these accused would not result in an unfair trial against them. Some of the narcoticsinvolved are particularly dangerous, alleged to be possessed in significant amounts and, at the manufacturing or assembly scale. There isa high societal interest in adjudicating these issues on the merits. [99] For the reasons set out above, I conclude that it will not bring the administration of justice into disrepute if the remainder of theimpugned evidence were admitted.

I am unable to conclude that the police conduct, taken individually or in the collective, to be soegregious in its seriousness and impact on the accused that it should outweigh societal interests in a merits-based adjudication. Admission of the subject evidence would not bring the administration of justice into disrepute. The Honourable Judge Gill Provincial Court of British Columbia Appendix: 1. R. v. Ali-Kashani et al., 2016 BCPC 482 2. R. v. Beaulieu, 2010 SCC 7 , [2010] 1 S.C.R. 248 3. R. v. Blake, 2010 ONCA 1 , [2010] O.J. No. 48 4. R. v. Blizzard, [2006] N.B.J. No. 217 5. R. v. Bohn, 2000 BCCA 56 6. R. v.

Caron, 2011 BCCA 56 7. R. v. Chaif-Gust, 2011 B.C.J. No. 2455 8. R. v. Coderre, 2016 ONCA 276 9. R. v. De Bortoli, [2012] BCJ No. 2233 10. R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 11. R. v. Fearon, 2013 ONCA 106 , 114 O.R. (3d) 81 12. R v. Grant, 2009 SCC 32 13. R. v. Harrison, 2009 SCC 34 , 2009 SCJ No. 34 14. R. v. Herman, 2017 BCSC 2097 15. R. v. Lauriente and Catalano, 2008 BCSC 187, aff’d 2010 BCCA 72 16. R. v. LeFaive, 2015 BCJ No. 3063 and 2015 BCSC 1284 17. R. v. Ly, [2012] B.C.J. No. 683 18. R. v. McGuffie, 2016 ONCA 365 19. R. v. Mero, 2003 BCSC 964 20. R. v. Paterson, [2011] B.C.J. No. 2617 (BCSC) 21.

R. v. Paterson, 2017 SCC 15 , [2017] 1 SCR 202 22. R. v. Paterson, [2009] B.C.J. No. 145 23. R. v, Pelucco, 2013 BCSC 1909, aff’d 2015 BCCA 370 24. R. v. Pino, 2016 ONCA 389 25. R. v. Spence, 2011 BCCA 280 26. R. v. Strachan, (SCC), [1988] 2 S.C.R. 980 27. R. v. Stanton, 2010 BCCA 208 28. R. v. Trieu, [2010] B.C.J. No. 2387 29. R. v. Welsh and Iannuzzi (No. 6), (1977), (ON SC), 14 O.R. (2d) 97

30. R. v. Whipple , 2016 ABCA 232 31. R. v. Wittwer , 2008 SCC 33 32. R. v. Wong and Troung , BCSC 1643 33. R. v. Wong , [2010] B.C.J. No. 557