R. v. Duong, 2022 BCPC 259

Citation: R. v. Duong 2022 BCPC 259 Date: 20220909 File No: 31222-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. CHRISTOPHER TANGEMAN DUONG RULING RE APPLICATION TO CROSS-EXAMINE AFFIANT ON SECTION 490(9.1) CRIMINAL CODE APPLICATION OF THE HONOURABLE JUDGE D. PATTERSON Appearing for the Attorney General of Canada: P. Shyba appearing by videoconference Counsel for the Defendant: I. Gauthier appearing by videoconference Place of Hearing: Prince Rupert, B.C.

Date of Hearing: September 9, 2022 Date of Judgment: September 9, 2022 [ 1 ] THE COURT: All right, so we are going to deal with just the s. 490(9.1) Criminal Code application. [ 2 ] I seem to recall, Mr. Gauthier, and you can tell me if I am wrong, but I think the officer was correct and pointed out in his affidavit that when he was before me on August 18, 2022, I opined that it sounded like the officer was trying to comply with R. v. Booth , 2021 BCPC 169 , and was acting in good faith.

[ 3 ] CNSL I. GAUTHIER: And he was, Your Honour, yes. [ 4 ] THE COURT: All right. And that is always my concern. I think you get the flavour from Booth that technicalities being what they are, if the officers are trying in good faith, that is a consideration on the 490(9.1) application I can take into consideration along with the affidavit. [ 5 ] But I take your point, Mr. Gauthier, is that you would like the opportunity to cross-examine or, at the very least, proceed with your application for the return of the items? [ 6 ] I must tell you this.

Based on the affidavit as it is, I am inclined to grant the s. 490(9.1) application, Mr. Gauthier. And if I do so, obviously, I am rejecting Mr. Duong's application for a return order. My opinion might be changed somewhat after cross-examination of the officer, especially if you elicit information that is different than what is set out or is more fulsome as the case might be. [ 7 ] I can think of the case of R. v. Le and Nguy , 2018 BCPC 48 , which is a decision by Judge Sudeyko. It was one of the last files I was on when I was still counsel.

I seem to recall that we had multiple police officers cross-examined during that hearing, and ultimately, Judge Sudeyko allowed the detention order. But the point being is that I have been involved where cross-examination has occurred based on counsel saying, "I would like that opportunity." [ 8 ] So Mr. Shyba, I appreciate that you would like an opportunity to look at that a little further.

Still, I think the best way for us to deal with it moving forward is I adjourn you to the judicial case manager's office specifically to fix a half-day hearing for the s. 490(9.1) hearing. [ 9 ] And I have not heard your whole argument yet, Mr. Gauthier. I appreciate that. I have only read the application. But that said, based on the affidavit, I am inclined to grant the s. 490(9.1) application because I see the check-offs of the boxes that the superior courts say need to be checked off on an s. 490(9.1) application. But you are telling me you do not believe the affidavit is accurate.

That causes the court some genuine concern, quite frankly, if the affidavit is inaccurate. Viva voce evidence can sometimes enlighten the court greatly. [ 10 ] So I know Mr. Duong would like his return order application done. Still, I am saying to you, Mr. Gauthier, that without the benefit of cross-examination on the affidavit, I will consider the affidavit as it is written.

You will probably lose your application, and the A.G. for Canada will get their s. 490(9.1) order. [ 11 ] So, the hope I am holding out for you is that you see that it is probably in your client's best interest for you to cross-examine the officer and I am prepared to allow that to happen. (RULING CONCLUDED)