R. v. Cheung, 2023 BCPC 283

Citation: R. v. Cheung 2023 BCPC 283 Date: 20231208 File No: 255105-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. WINSTON MAN-JON CHEUNG NICHOLAS JAMES ADAMS ORAL RULING ON APPLICATION FOR EXCLUSION OF EVIDENCE (Re Accused Cheung) OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: T. Lattimer Counsel for the Accused: M. Shamess

Place of Hearing: Vancouver , B.C. Date of Hearing: December 8, 2023 Date of Judgment: December 8, 2023 [ 1 ] THE COURT : Winston Cheung is before the Court on an Information charging him with six offences: Trafficking in Fentanyl and Heroin on four occasions between February 22, 2018, and May 1, 2018, and offences of Possession for the Purpose of Trafficking in Fentanyl and Heroin and of Cocaine on September 28, 2018.

Voir dires were held challenging the facial validity of a search warrant issued for his residence on September 28, 2018, and the police failures with respect to their reporting obligations to judicial authorities subsequent to the seizures. [ 2 ] With respect to the facial validity argument, I was satisfied that the search warrant needed to be quashed. The police had been surveilling Mr. Cheung to and from his residence for a period of time and believed that he lived in the basement suite of a residence in Burnaby. He was seen to enter and leave the residence only through a street-level side door.

A multigenerational family also clearly resided in the residence. They were seen to enter and exit the residence only through a front door. No member of the family was ever seen to use the side door and Mr. Cheung was never seen to use the front door. [ 3 ] The affiant of the Information to Obtain the Search Warrant drafted the search warrant that issued seeking to search the entire residence and not just the portion of the residence occupied by Mr. Cheung. In his evidence, the officer purported not to know if the residence was actually suite-ed, notwithstanding that he believed it to be.

It would have beyond easy for him to make that determination. A search of the Burnaby property tax information would likely have indicated so. What makes his failure to search even worse is that, if a phone call had not sufficed, Burnaby City Hall and the Burnaby RCMP are housed in the same complex. It would have been the briefest of walks to conduct an in-person search. [ 4 ] With respect to the post-search reporting requirements, prior to the execution of the search warrant, the search team was assigned roles.

The officer assigned as the exhibit officer was also the officer assigned to complete the Reports to a Justice. Notwithstanding that she prepared the exhibit list attached to the Report to Crown Counsel immediately, she failed to meet her reporting requirements to a Justice as soon as was reasonably practicable. She had plenty of opportunity to do so and apparently did not get around to it. [ 5 ] Additionally, Mr.

Cheung was not charged with any offences within one year of the search and seizure of the residence, necessitating an application to the Supreme Court of British Columbia to seek judicial authorization for the continued detention of some of the seized items. [ 6 ] On September 28, 2018, the police searched Mr. Cheung's bedroom and located 52 individually wrapped packages of heroin, fentanyl, and caffeine for a total weight of 13.83 grams, $9,325 in Canadian currency, $10 in foreign currency, suspected scoresheets, identification, a broken cellular telephone, and two laptop computers.

From his person, they seized an iPhone, 21 packages of heroin, fentanyl, and caffeine with a total weight of 2.57 grams, and four packages of cocaine weighing 1.89 grams, and a flip cellular phone. It took 10 months for the officers to bother to apply for search warrants for the electronic devices seized. [ 7 ] The non-controlled substances remaining in the possession of the RCMP after the expiration of the year included a flip phone, a broken cellular telephone, and a laptop computer. [ 8 ] Defence counsel seeks to exclude the evidence located during the execution of the search warrant on September 28, 2018.

She argues, among other things, that seeking a search warrant for residences other than Mr. Cheung's was a serious Charter violation and argues that warrants that permit more intrusive or extensive searches than are properly supported by grounds present a serious threat to public interest and represent serious state misconduct. She argues that the Court needs to disassociate itself from that conduct. She argues that it was blameworthy inattention to basic Constitutional standards. [ 9 ] She argues that failure to seek a search warrant for Mr.

Cheung's residence only, combined with the breaches of the post-seizure reporting obligations, show a pattern of disregard for Charter rights. She argues that the officer knew that the house was suite-ed and attempted to downplay that knowledge in his evidence on the voir dire . [ 10 ] I concluded that he absolutely believed there to be two separate residences and failed to easily check if the house was lawfully suite-ed.

The answer would have required no more than two sentences in the Information to Obtain a Search Warrant, an explanation that a warrant was required for the entire residence because no suite was registered with the Burnaby property tax office or that a search warrant was required for the suite only. Search warrants cannot become instruments of abuse and must therefore be limited only to the specific property for which there are grounds to search. [ 11 ] With respect to the impact on Mr. Cheung's Charter -protected interests, defence counsel argues that the impact is significant and pulls strongly toward exclusion.

She argues that admission would send the message that individual rights count for little. Because I have quashed the search warrant, the search here was a warrantless entry into Mr. Cheung's residence. Those in multi-unit dwellings have the same expectation of privacy as those individuals who reside in a single-unit dwelling. [ 12 ] Additionally, among other things, Mr. Cheung's personal laptop computer and passport were seized from him.

Defence counsel argues that the non-compliance with post-seizure reporting requirements and the over-holding are not technical errors but are a substantive breach of Constitutional protections. The failures in compliance demonstrate a casual, at best, attitude toward the requirements the Criminal Code and the Controlled Drugs and Substances Act place on police officers. The law is neither uncertain nor difficult to comply with.

It is an unacceptable disregard for the judicial authorization process. [ 13 ] Notwithstanding that there was no requirement to go before the Supreme Court at the end of the year with respect to the controlled substances, I conclude that Mr. Cheung has a privacy interest in them as they were seized both from his residence and from his person. Laptop computers and cellular telephones contain our most private and intimate of details and the seizing officer failed completely to seek the judicial authorization to continue detaining such significantly private items.

[ 14 ] Defence counsel acknowledged in argument that society's interest in adjudication of the case on its merits pulls less strongly toward exclusion of the evidence but points out that the seriousness of the alleged offence is a valid consideration in assessing the public's interest and can cut in both directions in the ultimate weighing process. [ 15 ] Crown counsel argues that notwithstanding the violations of Mr. Cheung's rights under s. 8 of the Charter that the seized evidence should nonetheless be admitted into evidence at trial.

He argues that the inquiry I conduct is an objective one: would a reasonable person conclude that admission of the evidence would bring the administration of justice into disrepute? There is a continuum of seriousness, and it is a sliding-scale analysis. [ 16 ] The police had sufficient grounds to obtain a search warrant for Mr. Cheung's residence. Crown counsel argues that that, in and of itself, permits the Court to conclude that it was near good faith on the officer's part. He sought a search warrant and went through the judicial process.

In any event, he argues that the failure to seek a warrant specifying Mr. Cheung's unit in the residence was not

an act of bad faith. He points out that the Court cannot find a pattern of abuse from that failure. The police honestly and reasonably believed they were acting lawfully at the time of the breach. [ 17 ] He does acknowledge, however, that the belief does not fix ignorance of Charter standards. He argues that while the failure to include the words, "The residence of Winston Cheung" in the draft search warrant was not good faith nor was it

an act of bad faith, it is a grey zone where the police had good reason to believe that what they were doing was perfectly legal. He argues that it is a grey zone because the Information to Obtain contained specific references to Mr. Cheung's suite. He argues that, from the admissions of fact, I am able to conclude that the police [indiscernible] the non-target residents in the residence prior to executing the search warrant. [ 18 ] The search warrant was ostensibly valid at the time of its execution. Additionally, he points out that Mr.

Cheung acknowledges that the police had reasonable grounds to search his residence. The fact that the police knew they had a search warrant is a factor weighing in favour of admissibility. Applying for and obtaining a search warrant is the antithesis of ignoring Charter rights. In doing so, there was no attempt to subvert the judicial process. [ 19 ] He argues, as well, that failing to include the specific reference to Mr. Cheung’s residence in the search warrant was not

an act designed to mislead the Justice of the Peace who issued the Search Warrant. There was nothing in the Information to Obtain that would have led the Justice of the Peace astray. He argues that the search warrant cannot be categorized as egregious police behaviour because the police believed they had a valid search warrant at the time of the search and that fact favours admission in the first stage of the Grant analysis. [ 20 ] With respect to the second stage, there is a continuum that the court must analyze. [ 21 ] He argues that the third stage of the Grant analysis favours admission of the evidence.

There is not a quantum of breaches in this case that would compel this Court to exclude the evidence. Each breach must be looked at individually before any cumulative analysis of the breaches. He argues that the failure to seek a search warrant for Mr. Cheung's specific residence only was a minor breach and would therefore push the factors toward admission of the seized evidence. A search warrant is an investigative tool, and the police got that tool here. He argues that the outcome of the execution of the search warrant would have been exactly the same had the police sought to search Mr.

Cheung's residence only. [ 22 ] He argues that there was no bad faith and that the police did not deliberately seek to subvert Mr. Cheung's rights.

He argued that the police officer's evidence in court was not misleading, but it, I have concluded, in fact, was because the officer tried to minimize before me his belief that the house was suite-ed. [ 23 ] Crown counsel argued that the officer's failure to check the property tax records was very minor in light of the fact that the officer had reasonable grounds to search the residence. [ 24 ] With respect to the impact on the Charter rights, Crown counsel argue that there was no state interference beyond what was authorized in a presumptively valid search warrant and that this is therefore sufficient in attenuating any impact upon Mr.

Cheung's Charter rights. He argues that the third phase of the Grant analysis favours admission of the evidence because the evidence is not conscriptive, it is the basis of Counts 10 and 11 of the Information, and the two counts are very serious drug offences. Mr. Cheung would face a very significant period of incarceration if convicted. [ 25 ] With respect to the over-holding, Crown counsel pointed out that there was a 35-day period of time before the Report to a Justice was filed, at which point in time judicial oversight of the seizure began.

With respect to the Controlled Drugs and Substances Act violation, there was a five-day period of time. He argued that the fact that the report was filed attenuates the breach. He argued, as well, that the failure to seek continued judicial oversight in the Supreme Court is at the low end of the spectrum of violations because the warrant was, to the officers' minds, validly issued. He argued that the residual privacy interest remained only in the laptop computer and therefore was a minimal violation of Mr.

Cheung's Charter -protected rights. [ 26 ] With respect to the third prong of the Grant analysis, he argued that excluding the evidence would not gut the case for the Crown on the possession for the purpose of trafficking charges because the Crown can prove its case without the information on the laptop that it wishes to use. [ 27 ] Finally, he argued that because the police sought a search warrant at all that the Court need not disassociate itself from the subsequent breaches. He argued that the breaches were merely technical violations.

He argued that, overall, the Grant factors favour admission. [ 28 ] The parties filed a joint book of authorities providing the Court with the following authorities for consideration: R. v. Bacon , 2012 BCCA 323 ; R. v. Bottomley , 2023 BCSC 603 ; R. v. Buhay , 2003 SCC 30 ; R. v. De Bortoli -- pardon me, Bottomley should be Rex, R. v. De Bortoli , 2012 BCSC 1528 ; R. v. Fan , 2017 BCCA 99 ; R. v. Gill , both decisions, first on the breaches and second on exclusion, 2021 BCSC 152 and 2021 BCSC 377 ; R. v. Goodkey , 2015 BCCA 64 ; R. v. Grant , 2009 SCC 32 ; R. v. Kramshoj , 2017 ONSC 2951 ; R. v.

Mandziak , 2014 BCCA 41 ; R. v. Montgomery , 2016 BCCA 379 ; R. v. Morelli , 2010 SCC 8 ; R. v. Pampena , 2022 ONCA 668 ; R. v.

Pawar , 2020 BCCA 251 ; R. v. Rocha , 2012 ONCA 707 ; R. v. Schirmer , 2020 BCSC 2259 ; R. v. Sunner , 2017 BCSC 2444 ; R. v. Tim , 2022 SCC 12 ; and R. v. Ting , 2016 ONCA 57 . [ 29 ] The judgment of the Supreme Court of Canada in Grant is the leading guide with respect to the determination of the admissibility or otherwise pursuant to s. 24(2) of the Charter .

Overall, courts are directed to analyze the Charter violations as follows: The phrase “bring the administration of justice into disrepute” must be understood in the long - term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. At paragraph 68. Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. At paragraph 69.

The factors to consider and weigh are … (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. That is from Bottomley at paragraph 37 . [ 30 ] With respect to the forward-looking process, in Flintroy , quoting R. v.

Robertson , 2017 BCSC 965 , the court ruled: Although wilful violations are undoubtedly more serious than unintentional ones, reckless or careless violations that demonstrate insufficient regard for Charter rights also inevitably undermine the public's confidence in the rule of law … [ 31 ] The breaches in this particular case are completely inexplicable. Having conducted a months-long investigation, having surveilled Mr.

Cheung over that period of time, having determined that he most likely resided in a separate suite in a residence, it defies all logic that the Affiant could not be bothered to determine if that was the case. The failure to do so left a significant potential for the residences of non-involved parties to be violated. [ 32 ] The failure to file the Report to a Justice within the prescribed periods of time and then the failure to seek a continuing detention order in the Supreme Court are equally inexplicable. The officer was assigned as the seizing officer.

Both the Criminal Code of Canada and the Controlled Drugs and Substances Act clearly set out her obligations. No explanation has been proffered for her failure to seek initially judicial oversight and then continuing judicial oversight. [ 33 ] In both instances, significant Charter -protected rights have been infringed. For centuries, the sanctity of an individual's home has been recognized and equal protection is given to the intimate details people store on their digital devices.

Admission of the evidence when there has been a complete nonchalance toward and therefore disregard of such significant privacy interests cannot be condoned. Doing so would only tell people that courts will not remedy violations of their privacy. [ 34 ] The evidence seized from Mr. Cheung's residence must therefore be excluded and the evidence seized from his person on September 28, 2018, must also be excluded. (RULING CONCLUDED)