R. v. Ho, 2011 BCPC 186

Citation: R. v. Ho, Hou, Huang, Li and Zhou Date: 20110621 2011 BCPC 0186 File No: 51239 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TIN LIK HO, QING HOU, SHAO WEI HUANG, YI FENG KEVIN LI, KAI LAI KYLE ZHOU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.R. MEYERS Counsel for the Crown: M. Le Dressey Counsel for the Defendant Ho: C. Johnson Counsel for the Defendant Hou: M. Foster Counsel for the Defendant Huang: B. Vase Counsel for the Defendant Li: M. Smith Counsel for the Defendant Zhou: R. Dhanu Places of Hearing: Richmond and Vancouver , B.C.

Dates of Hearing: February 2, 3, 4, 6, 9, 10, 11, 12, September 21, 22, 23, 24, 30, October 1, 2, December 1, 2, 3, 4, 2009; January 20, March 6, 24, November 18, 19, 24, 25, 2010; and February 3, 2011 Date of Judgment: June 21, 2011 [ 1 ] The Accused, Tin Lik Ho (“Ho”), Qing Hou (“Hou”), Shao Wei Huang (“Huang”), Yi Feng Kevin Li (“Li”) and Kai Lai Kyle Zhou (“Zhou”) are jointly charged with producing ecstasy and possessing ecstasy for the purpose of trafficking, on or about January 29, 2007. [ 2 ] The theory of the Crown was that ecstasy was synthesized at some unknown location; the synthesized ecstasy was moved to and stored at Unit 107 – 7480 Gilbert Road, Richmond, BC (“Gilbert Rd.”); the synthesized ecstasy was then taken to 3671 Raymond Avenue, Richmond, BC (“Raymond Ave.”) where it was mixed with additives (including; procaine, ketamine, caffeine and methamphetamine); the mixture was coloured, dried and then pressed into ecstasy tablets using automated pill presses; still at Raymond Ave., the ecstasy tablets would then be packed into foil bags marked as bulk “Chinese tea”; the foil bags would be sealed and taken to a transport company in Vancouver and shipped to Toronto and elsewhere, under the guise of being Chinese tea. [ 3 ] The Richmond RCMP Drug Squad was involved in this investigation for approximately 14 months.

During that time, they watched the comings and goings of people, cars and packages from three residential locations: Raymond Ave., Gilbert Rd. and Halifax St. They suspected that there was a very large and well organized ecstasy production, storage and distribution business carried on at these residential locations. There was an additional residence on Melbourne St. where they believed they would find important documentation related to the ecstasy operation plus large amounts of cash. [ 4 ] By the end of their 14 month investigation, the police had seven suspects, two cars (a white Chevrolet van and a blue Honda

Civic) both registered in one of the suspect’s (Huang) name, and four residences that they suspected were involved. The seven suspects (later to be the Co-Accused persons) were Ho, Hou, Huang, Li, Zhou, Sonata and Tse.

The residences searched, were Raymond Ave., Gilbert Rd., Halifax St. and Melbourne St as well as the white Chevrolet van registered to Huang; [ 5 ] The charges against Tse and Sonata were severed from the other Co-Accused and their trial was concluded separately. [ 6 ] What brought the long investigation and surveillance to an abrupt and unexpected end, was the surveillance team saw two men take two large plastic garbage bags from Raymond Ave. on January 28, 2007, and dump them into a garbage dumpster away from the Raymond Ave. house.

The police searched the garbage and found evidence of what they thought to be, the sudden dismantling of the production plant. The garbage included ecstasy tablets, ecstasy powder, methamphetamine, ketamine power, and other ecstasy production paraphernalia. The police suspected that the targets may have spotted the police and decided to quickly shut down their illegal operation and dispose of the evidence. [ 7 ] Cpl. Michaud, was the officer in charge of the investigation and he decided that the police should apply immediately for Search Warrants; [ 8 ] Cpl.

Michaud explained in his ITO, that in his experience, a Richmond Judge nor a Judicial Justice of the Peace (“Justice”) would be available until the Richmond Courthouse opened at 9:30 a.m. that morning; [ 9 ] Cpl. Michaud testified on the Voir Dire that he believed it would not give him enough time to organize all the simultaneous Search Warrants, should he wait until 9:30 a.m. to apply for the Search Warrants; [ 10 ] Cpl.

Michaud testified on the Voir Dire, that he applied to an out of town Justice at 6:07 a.m. for the Telewarrants for the four residences and the one car (the white Chevrolet van). [ 11 ] In the ITO, Cpl. Michaud said that he wanted the Search Warrants to permit the searches to take place between 8:00 a.m. – 5:00 p.m. on January 29, 2007. In testimony he said that he wanted to have all the Warrants executed simultaneously at noon on January 29, 2007. [ 12 ] The Telewarrants were granted at 8:11 a.m. January 29, 2007 and were ordered to be executed between 8:12 a.m. – 1:00 p.m. on January 29, 2007. [ 13 ] Cpl.

Michaud organized the Search Warrants to be executed simultaneously at noon on January 29, 2007. [ 14 ] Because they suspected the Raymond Ave. property would have toxic chemicals there, the fire department and the Clandestine Lab Department (“CLD”), were notified to be at Raymond Ave. for safety and decontamination purposes; [ 15 ] All the residences and the white Chevrolet van were searched.

Entry of Gilbert Rd. was gained by way of a “dynamic entry”; the other three locations were entered without a dynamic entry; [ 16 ] The searches of Gilbert Rd., Raymond Ave. and Halifax St., as expected, yielded evidence of a large scale ecstasy production, storage and distribution operation which the police believed were being operated by the seven Co-Accused. The search of Melbourne St. netted no important documentation nor were large sums of money found there; [ 17 ] The police laid charges jointly against the seven individuals.

As previously mentioned Tse and Sonata had their charges severed from the others and were tried separately from the others. Their house was the one on Halifax St. [ 18 ]

Section 487.1(9) of the Criminal Code requires that the Telewarrant be filed in the Clerk of the Court’s registry within seven days of execution. The police allowed this time period to lapse without filing the required Forms in the Richmond Court Registry. [ 19 ] This trial commenced with a Voir Dire to decide if the Search Warrants were lawfully granted and executed and to decide if any or all of the Rights of the Accuseds under Sections 8 and 10 of the Charter , were breached; [ 20 ] The police used a “dynamic entry” into Gilbert Rd. The two residents, Huang and Hou, were at home at the time.

A large amount of drugs, packaging and drug paraphernalia were found inside their residence; [ 21 ] The police did not use a “dynamic entry” to gain entry to Raymond Ave. Zhou and Li, the two residents, were at home at the time. A large amount of drugs and drug production and packaging paraphernalia relating to ecstasy were seized. Zhou and Li had to be “decontaminated” by the fire fighters using their water hoses; [ 22 ] The police did not use a “dynamic entry” into Melbourne St. The resident, Ho, was home at the time.

The police did not find any large amounts of cash there and the documents seized did not readily relate to the ecstasy production and distribution enterprise. [ 23 ] The entry, search and seizures at Halifax St. were the subject of the severed trial against Sonata and Tse. Suffice to say that a large amount of drugs and drug paraphernalia relating to ecstasy (and some other drugs) were discovered at this residence also; [ 24 ] The search of the white Chevrolet van resulted in the seizure of more drugs and paraphernalia related to the production, distribution and sale of ecstasy.

The van was registered to Huang. [ 25 ] In the opinion of the expert police witness, given the quantity of ecstasy pills, ecstasy powder, methamphetamine, usual ecstasy pill additives, together with all the production and packaging equipment found at Raymond Ave., Gilbert Rd. and in the white Chevrolet van, in his opinion, $10 million worth of ecstasy pills would eventually be made to be sold on the streets and in the clubs. [ 26 ] Some of the Defence arguments focused on specific breaches of the Charter rights of one specific Accused; other Defence arguments focused on the same breaches, simultaneously, of the Charter Rights of two specific Co-Accuseds; and other Defence

arguments focused on the Charter breaches (mainly the Telewarrant procedures, pre- and post-actions) that simultaneously affected all of the Co-Accuseds rights. [ 27 ] Only the Accused Ho (of Melbourne Ave.) and the Accused Huang and Zhou (of Gilbert Rd.), argued that the Warrants were unlawfully granted by the Justice based on a lack of sufficient information in the ITO. The arguments were that there were not the requisite objective reasonable grounds in the ITO to have granted the Warrant to search Ho’s home (Melbourne St.) or his white Chevrolet van.

The same argument was advanced as to the Gilbert Rd. residence on behalf of Huang and Zhou. [ 28 ] In dealing with each of the Defence arguments, I will set out which Accused argued that his specific Charter Rights were breached or will state when the alleged breach is submitted to be a breach simultaneously, of some or all of the Accuseds Rights; 1 ST ARGUMENT: OBTAINING OF A TELEWARRANT INSTEAD OF A FACE TO FACE APPLICATION TO A JUDGE OR A JUSTICE AS PER S. 481.1(1) OF THE CRIMINAL CODE; THIS ALLEGED BREACH SIMULTANEOUSLY WOULD AFFECT ALL ACCUSED [ 29 ] On Monday, January 29, 2007, at or about 5:00 a.m., the police decided to obtain Warrants to search the four residences, the garage attached to Raymond Ave., and Huang’s white Chevrolet van.

The Richmond Courthouse was closed and in the ITO, Cpl. Michaud said that he knew from past experience, that the Richmond Courthouse would not be open until 9:30 a.m. that morning. On the Voir Dire, he corrected that to “9:00 a.m.”. He said that he knew from past experience that there were no Richmond Judges or Judicial Justices of the Peace (“Justice(s)”) “on call” or available at the Richmond Courthouse, “after hours”. Cpl.

Michaud testified that he knew that there was a 24 hour/7 days a week Justice Centre in Burnaby but he said that it would take 2 – 2 ½ hours to drive from Richmond to Burnaby and back and he couldn’t wait that long to get the Warrants. [ 30 ] Cpl. Michaud testified that he needed to obtain a Search Warrant quickly because he believed that the suspects were starting to dissemble the ecstasy operations at Raymond Ave. and Gilbert Rd. He believed this because on January 28, 2007 his surveillance team saw the dumping of ecstasy pills, paraphernalia and mixers, into dumpsters off site.

His officers had observed two separate dumpings taking place, one emanating from Raymond Ave. and the other from Gilbert Rd. He surmised that the suspects might have discovered that they were under police surveillance and decided to quickly close down their operations. [ 31 ] Cpl. Michaud testified that after he decided that there was no Justice or Judge immediately available in Richmond and there was not enough time to drive to the Burnaby Justice Centre and back, he decided to fax his ITO to a Justice in Logan Lake. The Justice faxed back copies of the granted Warrant at 8:12 a.m.

The search Warrants authorized the searches to be done between 8:12 a.m. and 1:00 p.m. on January 29, 2007. [ 32 ] In the ITO, Cpl. Michaud outlined the surveillance observations which caused him to believe that the suspects were suddenly dismantling the ecstasy lab. He wrote: i. On January 28, 2007 at 6:17 p.m. a blue Honda left Raymond Ave.; it was followed to Colonial Drive where two unidentified males took garbage out of the car and dumped it into a dumpster there; the police seized the garbage; ii.

On January 28, 2007 at 11:02 p.m. a blue Honda drove from Gilbert Rd. to the Seafair Mall; two men, one of whom was Huang, took garbage out of the Honda and dumped it in the dumpster there; the police seized the garbage; the blue Honda returned to Raymond Ave. at 11:04 p.m. and Huang went inside the Raymond Ave. residence. [ 33 ] Paragraph 100 of the ITO set out the following items seized from both garbage dumpsters: “several food saver bags with white powder with a gross weight of 965 grams; a cardboard box labeled to contain a Dawn Bakery Magic liquid Food Colour, Blue, 4 liters; the instruction manual for a TDP single punch pill press; 7 Clubhouse brand food colouring bottles, including red, yellow, and green colours; a 230 gram bag of yellow dolphin logo tablets believed to be Ecstasy; 3 plastic bags containing pink and blue powder all believed to be Ecstasy totalling approximately 3.47 kgs; approximately 720 empty bottles labelled to contain Caffeine tablets.” Cst.

Hsieh told the Court that caffeine and food colouring are common adulterant used in the production of Ecstasy. [ 34 ] The ITO, told of a previous seizure (January 2, 2007) from the contents of a garbage can and three plastic garbage bags, which they had observed being placed in the driveway outside of Raymond Ave., to await the regular weekly garbage pick up.

The garbage seized included: white paper sheets with Chinese characters; a plastic baggy with ecstasy and caffeine residue inside, two baggies with Chinese characters written on them; one luggage tag from an Air Canada flight from Toronto to Vancouver bearing the name, “HO” and one empty 2’X1’ cardboard box containing a five gallon Home Depot plastic bucket. [ 35 ] The relevance of this garbage was explained in paragraph 62 of the ITO, as follows: “Investigative finding: I was advised by Cst.

HSEIH on January 20 2007 that he had had the Chinese characters translated with the assistance of Constable Sammy WU (hereinafter referred to as Cst. WU) from the Richmond Serious Crime Unit. Cst. WU speaks Chinese and also can write and read Chinese characters. Cst. WU translated the Chinese characters on the white paper sheets as Chinese proverbs or poetry. However, Cst.

WU reported that the two Chinese characters on the plastic baggy with the white powder residue were translated into “Match” which in a drug producing/trafficking context could also mean “cutting agent” such as a substance that might be matched or mixed into a Controlled Substance.” [ 36 ] On the front page and in Paragraph 112 of the ITO, Cpl. Michaud stated why he was requesting a Telewarrant rather than attending face to face with a Justice or a Judge: “This application is being made by telewarrant for a Search Warrant to search the locations mentioned in paragraph 110.

The Court house is currently closed and will not open until Monday morning January 29 2007 at 0930 hours. I believe that it is in public interest and public safety to execute a Search Warrant as soon as practible.” [ 37 ] The questions that arise from making the choice to use the Telewarrant procedure rather than an “in person” application are:

1) Was there an urgent need to use the telewarrant process rather than the usual “in person” application for the Search Warrants? 2) Did Cpl. Michaud have the obligation to make specific inquiries as to the availability of a Justice or Judge in Richmond during the early hours of the morning before 9:30 a.m. that day (Monday) or was he able to rely on his prior experience with respect to the operating hours and availability of Judges and Justices in Richmond, “after hours”? 3) Would a two or two and a half hour delay which would be occasioned by having to drive from Richmond to Burnaby (the Justice Centre) return, constitute the type of “impracticality” mentioned in s. 487(4) (

a) of the Criminal Code ? [ 38 ] The starting points for answering these three questions are sections 481.1(4) (

a) and 487.1(5) (6) of the Criminal Code . These sections provide for Telewarrants to be resorted to in situations where it is “impractical” for the Affiant to present the ITO “face to face” with a Judge or Justice.

Section 487 makes it mandatory for the Affiant to state (orally or in writing) when applying for the telewarrant, just why it is impractical in the circumstances to present the ITO to a Judge or Justice, in person; [ 39 ] I must decide whether or not the simple statements of Cpl.

Michaud in the ITO (front page and paragraph 110), as amplified (elaborated) by him on the Voir Dire, adequately make the case for the Court to conclude that “ objectively ,” it was ‘impractical’ in the circumstances, for him to have applied for the warrants by personally attending face to face with a Justice or a Judge either in Richmond, the Justice Centre in Burnaby or at another close-by Registry (example 222 Main Street)? [ 40 ] The cases which I have considered in my deliberations were: R. v. Ling [2009] BCCA 70; R. v. Koprowski [2005] BCPC 657; R. v. Nguyen [2006] BCPC 398; R v.

Nguyen [2006] BCPC 453; R. v. Passon [2008] BCSC 1067; R. v. Hill [2006] NSSC 401. [ 41 ] The Defence have heavily relied on the R. v. Ling case (supra). In that case, the Affiant from the Grand Forks RCMP detachment, made no inquiries at all as to the availability of a Justice at the Grand Forks Courthouse. It was 4:50 p.m. on a Wednesday. The Affiant did not explain why it was impractical to drive to other towns or cities close by, so as to apply in person before a Justice who might still have been at the Courthouse in one of those other court locations.

Chief Justice Bauman said as follows (at page 10): “Section 487.1(4)(

a) of the Code contains this mandatory language: An Information submitted by telephone or other means of telecommunication shall include (1) a statement of the circumstances that make it impractical for the peace officer to appear personally before a justice. The absence of any effort to actually confirm the unavailability of a JJP, this case is unlike an R. v. Berry

(2002) BCSC 1742 or R. v. Young 2008 BCCA 513 . In those cases, the affidavits of the officers made it clear that there were in fact, no JJPs ever present in the respective communities. See also R. v. Smith 2005 BCCA 334 ” [ 42 ] The Telewarrant in the R. v. Ling (supra) case was quashed due (in part) to the failure of the RCMP officer to make specific inquiries as to the availability of Judges or Justices at the Grand Forks Courthouse or at the Courthouses in the nearby surrounding areas. [ 43 ] In the case of R. v.

Koprowski (supra), as in the case at Bar, the Affiant did not make specific inquiries as to the availability of a Judge or Justice at his local Courthouse but instead, he relied on his past experience that at that time of day, Justices and Judges were never there. In that case, as in the case at Bar, the Affiant said that time was of the essence and it was impractical if he wanted to meet the deadline for the searches to take place, to have to drive round trip between his home Courthouse and another courthouse. In the case at Bar, Cpl.

Michaud said that it would take too much time for him to drive to and from the Burnaby Justice Centre and accordingly he applied for the Telewarrant. [ 44 ] In the Koprowski case, Devitt, PCJ, ruled that although the ITO on its face, contained an adequate explanation for not requesting a warrant by personal attendance, on amplification at the trial, the evidence disclosed a “sub-facial defect”. Devitt, PCJ ruled that because (

a) the Affiant had not made any specific inquiries at the time, as to the availability of a Surrey Judge or Justice (his home Courthouse); (

b) that the Affiant could have driven to the Burnaby Justice Centre and immediately radioed back to his Surrey Detachment, the moment he had the signed warrant, in order to save time; and (

c) the Affiant had not made any inquiries as to the availability of a Judge or Justice at the nearby Richmond Courthouse, Devitt, PCJ concluded there was a breach of the mandatory provisions of Section 487 (4) (a). He ruled that this was not just a “technical breach” but rather, it was a breach that went to the heart of the power of the Justice to grant a Telewarrant application.

Specifically, Devitt, PCJ said this in Paragraph 11: “.... the Justice must be satisfied he or she has from the officer sufficient subjective and objective factual reliable information that it was impractical for the officer to appear personally. Under S. 487.1(1) the informant must believe an indictable offence has been committed and it would be impractical to attend. In addition, under S. 487.1(5) there must be reasonable grounds for dispensing with personal attendance by the informant. See R. v. Pederson [2004] BCJ No. 229 , R. v.

Breland [2000] AJ No. 939 ” Devitt, PCJ quashed the Telewarrant. [ 45 ] In the case of R. v. Nguyen [2006] BCJ No.1222 , Young, PCJ followed the R. v. Koprowski case (supra) and ruled that the Telewarrant in that case was unlawful because the Affiant did not first make specific inquiries as to the availability of a Judge or Justice at his home Courthouse of Chilliwack. Young, PCJ, ruled that this pre-condition for a telewarrant to issue, was missing in the ITO and accordingly the telewarrant was not lawfully issued. [ 46 ] In the case of R. v.

Nguyen (supra), Lemiski, PCJ adopted the reasoning of Devitt, PCJ in the R. V. Koprowski case (supra) and ruled that under the same circumstances in that case, the Telewarrant was not lawfully issued. [ 47 ] In the case at Bar, Cpl. Michaud testified that from his past experience, he knew that Richmond Judges and Justices were never available after hours and that they would only be available starting from the time that the Richmond Courthouse opened at 9:30 a.m. (which he changed to 9:00 a.m. in his vive voce testimony). He testified that driving to and from Richmond and the Justice Centre in

Burnaby, which he knew would be open and with Justices in attendance, would take him 2 – 2 ½ hours and that simply was just toomuch of a delay, in the circumstances. [48] Cpl. Michaud did not set his mind to the possibility that there might be “on call”, Justices or Judges at the Vancouver Courthouseon Main Street, which is actually closer to the Richmond RCMP Detachment and Richmond Courthouse, than the Justice Centre inBurnaby. [49] Cpl. Michaud did not say how “up to date” his information was, as to the precise times in the mornings that Judges and/orJustices would be available at the Richmond Courthouse.

He simply told the issuing Justice that his experience was that the RichmondCourthouse opens at 9:30 a.m. (and told the Court it was 9:00 a.m.), and that would be the first available opportunity for him to be ableto access a Richmond Judge or Justice. [50] In his testimony, Cpl. Michaud testified that he wanted to conduct the searches as close to noon on January 29, 2007 as waspossible.

In his evidence, he did not provide an opinion as to why, if he had received the Warrant in person at say 10:00 a.m., therewould not have been sufficient time to assemble and instruct his co-officers, members of the fire department and CLD members, by12:00 p.m. or 12:30 p.m. Although on the surface, 2 or 2 ½ hours would seem to be a very short time for setting up everything for theexecution of Search Warrants, it is not up to this Court to speculate on whether 2 – 2 ½ hours would or would not be sufficient time toprepare. Cpl.

Michaud did not tell the Court that it would have been impractical to organize the searches within a 2 – 2 ½ hour time line. That was not addressed by Cpl. Michaud either in the ITO or when he testified on the Voir Dire. [51] In fact, in the ITO, Cpl. Michaud specifically stated that he wanted the Search Warrants for execution between 8:00 a.m. and6:00 p.m. on January 29, 2007. His exact words were: “Paragraph 113. Should a Search Warrant be granted, I am requesting entry between the hours of 0800 and 1700 hours on January27/07.

Entry between these hours will provide police time to gather the appropriate resources and locate a Health Canada Chemist toattend the residence in support of the Warrant execution....” [52] However, it is interesting that Cp. Michaud, in the witness stand, said that he wanted to execute the Warrant (gain entry) by noonand yet in the ITO he specifically asks for the right to gain “entry” as late as 6:00 p.m. [53] It should be noted that the Justice did not give Cpl.

Michaud the time that he had requested, but instead abbreviated the entrytimes to between 8:12 a.m. and 1:00 p.m. on January 29, 2007. [54] The three observations in paragraphs 51, 52 and 53 hereof, beg the question: Did Cpl. Michaud really need to execute all theWarrants at noon or was he forced to execute them at noon because the Justice tightened up the time?

I am concerned that when he wasapplying for the Warrants, there was no mention of the urgency of executions by noon and yet the reason he gave in Court for using theTelewarrant procedure, was that he wanted to execute the Warrants at noon and had no time to waste by waiting until the RichmondCourthouse opened at 9:00 a.m. (or 9:30 a.m.) nor to drive out to the Burnaby Justice Centre which he knew would in fact, be staffed at6:00 a.m. [55] When I combine: the reasoning and precedent of the R. v.

Ling case (supra) and the other authorities referred to; that Cpl.Michaud did not make any specific inquiries to ascertain whether a Richmond Judge or Justice was then “on call” or at what time onewould become available; that Cpl. Michaud did not consider checking if the Vancouver Courthouse at 222 Main Street had a Justice orJudge “on call” or arriving soon; that Cpl. Michaud did not consider that it would have been practical to drive the one hour (he said) tothe Justice Centre in Burnaby and radio or fax the Warrants back to the Detachment as soon as they were granted by the Justice (inperson).

The conclusion that I have come to, is that the Crown have not satisfied me that “objectively” it was “impractical”, for Cpl.Michaud to have applied for the Search Warrants in person. [56] Each of the cases that I have referred to, did not consider this type of breach to be simply a ‘technical’ breach, having no realsubstance to it. This type of breach is considered to be serious. In the case of R. v.

Deallapenna (BC CA), [1995] 62BCAC 32 (BCAA), Madam Justice Southin, JA commented at paragraph 37: “....If the prior authorization process is not vigorously upheld by the courts, it will lose its meaning and effectiveness. That process is inplace to protect everyone from unreasonable intrusions by the State.” [57] In the case of R. v.

Hill (supra), MacAdam, J. said this about obtaining search warrants by Telewarrant rather than by in personapplications: “Paragraph 31 31 However, it would not seem to be a long-term solution to have all warrants obtained in this manner, since it precludes theopportunity for the issuing Judge or Justice to examine the officer on whose information the warrant is being sought, in person, and toraise whatever questions may be considered appropriate. Although a telewarrant would not preclude such an exchange it obviouslywould make it les practicable and less likely to occur.

The serious invasion of the privacy of the citizenry that arises from the executionof a search warrant, necessitates that before granting such a warrant, it be done after careful consideration and, where necessary,questioning of the officer seeking this authority. This is particularly so in view of the fact that there is no one appearing to question oroppose the issuance of the warrant.” [58] This particular breach was not due to deliberate bad faith or callous disregard by the police, in not following the legalrequirements of s. 487 of the Criminal Code.

However, the breach is not simply a technical and unimportant one, it is a significantomission. I will say more about the consequences later in this Judgment during the section 24(2) Charter Analysis. ALLEGED VIOLATION OF S. 487.1(9) OF THE CRIMINAL CODE: FAILURE TO FILE A REPORT WITHIN 7 DAYSFOLLOWING THE EXECUTION OF THE WARRANTS (THIS ARGUMENT APPLIES TO ALL CO-ACCUSED PERSONS)

[ 59 ] In the case at Bar, the police did not file a written Report with the Richmond Court Registry until approximately one month subsequent to the execution of the first Search Warrants issued on January 29, 2007. There was a second Search Warrant issued on January 30, 2007 to permit the continued search of the Raymond Ave. property and for that Search Warrant, the police did not ever file a s. 487.1(

a) Report with the Richmond Court Registry. [ 60 ]

Section 487.1(9) requires that the police file a written Report to the local Court Registry as soon as practicable but within a period not exceeding seven days after the execution of the search warrant. [ 61 ]

Section 487.1(9) sets out mandatory parts of the written Report to be as follows: (

a) a statement of the time and date the warrant was executed or, if the warrant was not executed, a statement of the reasons whys it was not executed; (

b) a statement of the things, if any, that were seized pursuant to the warrant and the location where they are being held, and; (

c) a statement of the things, if any, that were seized in addition to the things mentioned in the warrant and the location where they are being held, together with a statement of the peace officer’s grounds for believing that those additional things had been obtained by, or used in, the commission of an offence. [ 62 ] Once the Report has been received by the Registry,

Section 487.1(8) requires that: The clerk of the court shall, as soon as practicable, cause the report, together with the information and the warrant to which it pertains, to be brought before a justice to be dealt with, in respect of the things seized referred to in the report, in the same manner as if the things were seized pursuant to a warrant issued, on an information presented personally by a peace officer, by that justice or another justice for the same territorial division. [ 63 ] The Justice in the case at Bar granted the Search Warrants, using the Criminal Code Forms, which very clearly stated on the Forms, in writing, the direction to Cpl.

Michaud as follows: and to report thereon as soon as practicable but within a period not exceeding seven days after the execution of the warrant to the Clerk of the Court for Richmond 7577 Elmbridge Way, Richmond, British Columbia _______________________________________________________________________ (Court Registry) (Address) [ 64 ] Also, clearly on the Forms, in bold black print, was the following advice to the Occupant(

s) of the residences being searched: TO THE OCCUPANT: This search warrant was issued by telephone or by means of telecommunication that produces a writing. If you wish to know the basis on which this warrant was issued, you may apply to the Clerk of the Court for the territorial division in which the warrant was executed, at the Court Registry noted above to obtain a copy of the information on oath. You may obtain from the Clerk of the Court a copy of the Report filed by the Peace Officer who executed this warrant.

That report will indicate the things, if any, that were seized and the location where they are being held. NOTE: If access is denied because a sealing order has been made, you may apply to the Court for access. 1. Justice of the Peace 2. Police 3. Premises [ 65 ] These two parts of the Search Warrants are important.

It is fundamental to the Courts’ ability to supervise the proper execution of warrants and it is fundamental to the rights of people who are about to have their homes searched by the police, to know that the Courthouse in their area, will have all of the legal documents pertaining to the intrusion of their privacy, available for them to inspect. This advice to the occupant(

s) assures the occupant(

s) that the search of their home(

s) has been authorized by a Court of Law and the basis upon which a Justice granted permission to the police officers to search their home(s).

The Warrant specifically advises them that they can go down to their local Courthouse and see exactly what the Justice read and considered to justify him/her issuing the Search Warrant. [ 66 ] It is not only an important legal right which is assured by virtue of our Criminal Code , but also, carries with it, a practical effect of calming and assuring the residents of the house, that the search was not simply an arbitrary police interference with their right to privacy within their own home. [ 67 ] The obvious question is, what was the reason that one Report was filed three weeks late and the other report was not filed at all?

Sgt. Bhatti testified that his role included making sure that the RCMP policies and all the legal requirements, were complied with during the investigation. Surprisingly, he said that he did not know at all, anything about requirements to fill out and file Reports (Form 5.1) in the Richmond Registry nor did he know about there being any time limits for filing. [ 68 ] Sgt. Bhatti testified that the first time he had even heard about these filing requirements was when the Crown, on March 7, 2007, asked him if the Reports had been filed.

On March 7, 2007, immediately after that meeting with the Crown, he did file a Report regarding the January 29, 2007 (issued and executed) Search Warrants. He never did file a Report with respect to the second Search Warrant (issued and executed on January 30, 2007), for the continuing search of the Raymond Ave. residence.

[ 69 ] Other than ignorance, Sgt. Bhatti offered no explanation for not filing the first Report on time. Sgt. Bhatti offered no explanation at all, as to why he didn’t bother filing the second Report after being told of the requirement by Crown counsel. One can only assume that he forgot. [ 70 ] “Ignorance of the law”, is no excuse for a lay person and it certainly is not an excuse for a police officer in charge of assuring adherence to legal requirements before, during and after search warrants are executed. [ 71 ] A number of cases were cited to the Court.

The cases contained divergent views as to whether the failure to file the Report on time or the failure to file the Report at all, were but trivial and insignificant infractions or were important and critical infractions of the Criminal Code and Charter . [ 72 ] Fortunately, our B.C. Supreme Court canvassed these divergent views and cases and provided guidelines for the Courts in British Columbia to follow. The BC cases were: R. v. Martens [2004] BCSC 1450 and R. v. VanZeperen [2009] BCSC 350. These cases basically say “it depends on the facts of the particular case”.

Sometimes breaches of the procedural requirements of s. 487.1 can be viewed as “technical breaches” and as such, not give rise to a

section 8 breach or if it did, it would not render the evidence obtained in the search, to be Ruled inadmissible after a s. 24(2) analysis. In other fact patterns, the failure to file properly completed Reports on time or at all, could be viewed as a violation of an essential and integral part of a lawful residential search, thereby causing a serious breach of a person’s s. 8 Charter rights. The result would then, be the severe consequence to the Crown, that all of the evidence acquired in the search, would be ruled inadmissible under s. 24(2) of the Charter . [ 73 ] The R. v.

Martens case (supra) specifically said that a simple failure to file a Report or simply making an error in the Report, would not “automatically” translate into a finding of a s. 8 breach and requiring a s. 24(2) analysis. [ 74 ] What are the facts in the case at Bar that are relevant to this issue? (

a) one Search Warrant Report was filed 3 weeks late and the other Search Warrant Report was never filed; (

b) the reasons that Reports for the January 29, 2007 Searches, were not filed on time, was because the senior officer in charge of assuring compliance with legal procedures, was ignorant of the requirements of s. 487.1. The requirements of s. 487.1 are stated clearly on the face of each of the Search Warrants which he had in his possession that day and would have been the same standard Form 5.1 which he presumably would have had for all of his previous search warrant cases; (

c) in

section “B” of the Form 5.1 filed (although after the time limitation), there was an error. In

section “B” of the Form, the officer was supposed to record where and in what manner the goods which were seized, were being held.

Section “B” was left blank in the Report; (

d) neglecting to file the Report for the second search; and (

e) not correcting the error in the first Report (albeit a less important factor). [ 75 ] In view of the law and the facts in this case, I find that the breaches of the Criminal Code requirements as to filing Reports within 7 days of the January 29, 2007 searches, and not filing a Report at all for the January 30, 2007 search constitute breaches of the Charter Rights of all the Co-Accused in this case. [ 76 ] What will be the effect these Charter breaches, will be left to the s. 24(2) analysis to be done later in this Judgment. ARGUMENT THE

SECTION 10(

a) AND

SECTION 10(

b) CHARTER Rights OF LI were reached when those Rights were read to him in the English language but he lacked the proficiency in English to understand what the POLICE officer was TELLING him . [ 77 ] Li did not testify on the voir dire but when Cst. Summer testified, he said that after he read all of the Charter Rights to Li in English, he asked Li if he understood and Li said “No”. Cst. Summer agreed that Li seemed to have a very difficult time with English and thought that he probably only understood bits and pieces of English. Cst.

Summer said that he did not seek out an interpreter to help explain Li’s Rights to him. [ 78 ] The police investigation of the “ecstasy ring” extended over a 14 month period.

By the end of that time, the police had a pretty good idea that one or more of the people who they would be accosting, detaining and arresting, would have English as their (very distant) second language and could have significant difficulty, understanding, speaking and reading English, especially when it involved the complicated wording used in explaining the Charter Rights to an Accused. [ 79 ] The police had the names, birthdates and addresses of each of their suspects, in advance of the searches.

The police had access to C.P.I.C., P.I.R.S., the Motor Vehicle Branch records and a myriad of other sources from which to glean extensive profiles of their suspects.

In addition to the foregoing, common sense should have alerted them to the potential problem they would be encountering if they did not prepare to have Mandarin and Cantonese speaking police officers or translators available to assist them when it came time to explain to their suspects, that the police were entering their homes lawfully by virtue of a Search Warrant and then explain to them, the complicated array of legal rights which they had, pursuant to The Charter of Rights . [ 80 ] Cpl.

Michaud acknowledged that he had a pretty good suspicion that all of the accused would be primarily Mandarin or Cantonese speaking but thought they might speak “some English” as well. Cpl. Hsieh agreed in cross-examination, that as the “File Coordinator”, he did consider the possibility that the people who were to be arrested may need assistance in English in order to ensure that they would understand what was being told to them when they were arrested.

He also acknowledged that he knew that, in some of the garbage which they had seized, they had found papers written in Chinese script and also, on one of the days during the surveillance, he had heard the occupants of one of the target residences, loudly singing songs in Chinese.

[81] The police basically just closed their eyes to this real, potential problem, by doing nothing in advance to plan for it. The day ofthe searches arrived and the anticipated problem, immediately became a real problem. [82] In advance of executing the Warrants, the police ought to have made, at least some of these preparations: (

i) have had the Search Warrants translated into Chinese characters (which characters are the same for Mandarin or Cantonese); (ii) have had the “arrest scripts” that they would be reading in English, also printed in Chinese characters, on paper or cards, for thedetainees to read; (iii) have had both Mandarin and Cantonese speaking police, either as part of the arrest team or on “stand by” to be called over as soonas it became apparent that they had even one person under arrest, who was not sufficiently capable of understanding English; (iv) have had arranged for both Cantonese and Mandarin speaking interpreters, to be waiting outside the residences or at the very least,to be on “stand by”, so they could quickly call upon them to assist in explaining to the detainees, in a language which they couldunderstand, that the police had a Search Warrant; that the Search Warrant was issued by a Justice; what charges they were facing; whytheir houses were being searched; explain to them their right to call a private lawyer or a free Legal Aid lawyer; explain their right toconsult with the lawyer in private; explain their right to remain silent should they choose to do so; explain their right to have aninterpreter present if they did not understand English sufficiently. [83] The police did none of the foregoing.

In this case, the only preparation the police had made for the probable languagedifficulties, was to have one Mandarin speaking police officer on duty, but simply waiting at the RCMP detachment at the beginning ofthe scheduled searches and thereafter. The police did not call that officer out to either residence, where he could have been of assistancein conveying the vital information to those accused who spoke and understood little English because their native language wasMandarin. [84] All members of the police search team were given the same “script sheet” to read the Charter Rights to each accused.

The arrestscripts were all written in English. The script sheets could easily have been, but were not, duplicated in Chinese characters, in advance. [85] The case of R. v. Ng and Yen [2006] BCPC No. 1922 (Young, PCJ) involved the execution of a Search Warrant. The resident(Accused) clearly did not speak English. There was a young child (a relative) there who translated whatever the police said in English,into the Accused’s native language. Young, PCJ ruled that simply reading the Charter warning in English amounted to a violation ofthe Accused’s Charter rights.

At paragraph 107, Young, PCJ said the following: 107 In my view, the accused was not given her s. 10(

b) rights in a proper manner. There are several aspects to the informationcomponent of s. 10(b). It is important that the s. 10(

b) rights be conveyed in a language that is understood by the accused. Here, ayoung child said something to the accused while the officer was reading the s 10(

b) rights, and at best, the accused simply nodded herhead. Here was no attempt by the officer to delay the reading of the s. 10(

b) rights until an interpreter could be enlisted, to ensure theaccused clearly understood her s. 10(

b) rights. [86] Counsel cited a number of relevant cases from Ontario: R. v. Vanstaceghem (ON CA), [1987] 36 CCC(3rd)142 (Ont CA); R. v. Ly [1993] OCJ No. 268; R. v. Uppal [2001] OJ No. 2688 (Ct. of Justice); and R. v. Silva 2005 ONCJ 2 ,[2005] OJ No. 65. [87] In the R. v. Vanstaceghem case (supra), the Accused was read the breathalyzer demand in both official languages but his CharterRights were only told to him, in English.

The Accused testified at trial that he did not understand what the officer was saying to himregarding retaining a private lawyer, using Legal Aid, having a right to privacy, and having the right to remain silent when the policequestioned him. At the scene, he had told the arresting officer that he did understand English, but later he told the second officer at thepolice station (the Technician) that he did not understand English very well. That second officer had an immediate obligation to re-explain his Charter Rights in such a way and in a language which he could understand.

In ordering an acquittal, Lacourie, J. atparagraph 8, said the following: “Having regard to the officer’s knowledge that the respondent was French, that the respondent certainly was not at ease with the Englishlanguage in that he did not understand the breathalyser demand, I am of the view special circumstances existed which required the officerto reasonably ascertain that the respondent’s constitutional rights were understood by him...” [88] In the case of R. v. Uppal (supra) which was also a breathalyzer case, at the roadside the accused told the police officer that hecould understand English.

The officer then read him his s. 10(

a) and 10(

b) Rights from a standard police issued card. The Rights wereread to him in English. When taken before the technician, he was re-chartered again, in English. This time, the accused told theTechnician that he had difficulty with the English language. DeFillipis, J. held that the accused’s Charter Rights to counsel had beenviolated. He ruled that the accused had difficulty with the English language and so advised the technician, the technician then had theobligation to make reasonable efforts to ensure that the accused was advised in a way that he would be able to understand what his rightswere. The failure to do so amounted to a breach of his

Section 10(

b) Charter Rights. [89] In the R. v. Lukavecki case (supra), also a breathalyzer case, after being told of his right to counsel, the accused told thetechnician, that “I don’t speak the best English.” Previously at the scene, the accused had told the police officer that he understood boththe right to counsel information and the breathalyzer demand, both of which had been read to him, in English. At trial however, hetestified that he did not understand “the right to counsel” information given to him by the officer at the scene nor did he understand whatthe technician was trying to tell him at the police station.

On appeal, Feldman, J.A. directed that an acquittal be entered, reasoning thatthe police had an obligation to ensure that an accused understands their right to counsel and that the technician was obliged to makefurther inquiries, to be sure that the accused’s English was sufficient for him to understand those rights being explained to him inEnglish. That obligation arose as soon as the accused told the technician (assuming that the technician didn’t think he was lying), thathis English was poor.

[90] In R. v. Silva (supra), a breathalyzer technician could plainly see that the accused had difficulty with English and he had indeed,told the technician that he only spoke English, “a little bit”. MacDonnell, OCJ said this at paragraph 12: 12 Each case must be determined on its own facts. However, the case at bar has many similarities to the two cases cited, both ofwhich are binding on me. While I have rejected the accused’s evidence concerning the extent of his inability in the English language, Iaccept that it was plain to the breathalyser technician that English was not the accused’s first language.

Indeed, the officer testified thathe had to speak slowly to the accused in order for the accused to comprehend what he was saying. In those circumstances, I concludethat when the accused told the breathalyser technician that he spoke English “a little bit”, there was an obligation to make further inquiryas to the accused’s understanding of the content of the right to counsel. The accused should have been asked whether he desired to havean interpreter present to translate his rights for him.

That was not done, and on the particular facts of this case I conclude that theaccused has established a violation of his rights on a balance of probabilities. [91] Still dealing with the R. v. Silva case, the accused’s first language was Portuguese and he testified that he did not understandwhen the police officer read his Charter Rights to him in English. The Charter card was written in English and read in English. Afterreviewing the case law; the Court enumerated the following principles: (

i) The burden of showing a breach of Charter Right to counsel, is upon the applicant, on a balance of probabilities; (ii) The “right to counsel” encompasses a right to be informed of that right in a comprehensible and meaningful way and the right toexercise that right in a meaningful and comprehensible manner; (iii) Where special circumstances exist that would reasonably alert the officers who were engaged in informing the accused of his rightto counsel, that there may be linguistic difficulty with comprehending the right, then officers are required to take reasonable steps toascertain whether those constitutional rights being given, are actually understood by the accused; (iv) The questions, whether these are: special circumstances, the adequacy of the steps taken to ensure actual comprehension andwhether or not he was afforded meaningful and comprehensible access to counsel, are questions of mixed fact and law; (

v) Special circumstances may arise where it is clear to the officer that an accused person’s first language is not English and there is adifficulty comprehending the demand for samples of breath; and (vi) A necessary concomitant of the right to counsel is the opportunity to meaningfully exercise that right. Effective communication isthe cornerstone of the solicitor-client relationship. Evidence of a working knowledge of day-to-day English usage will not necessarilyextinguish the concern for meaningful comprehension.

Police will proceed at the peril of a successful prosecution where there areindicia of a language comprehension problem and an interpreter is neither offered nor made available. [92] In the case of R. v. Evans (SCC), [1991] 1 SCR 869, the Supreme Court of Canada dealt with a situation where aconfession was made by an accused who had a diminished mental capacity. In ruling that the accused’s right to counsel was violated,the Court commented that when dealing with a person of diminished mental capacity, the police cannot simply read the person’s Charterof Rights from a prepared generic card.

The police officers are obligated to modify their words and explanations so as to meet whateverthe person’s apparent abilities to understand, are. The Court went on to emphasize that this obligation was particularly so, if when thepolice asked an accused if he understood the Rights which were just read to him, he said “No”. The Court ruled that the accused’s s.10(

a) and (

b) Rights were breached. [93] In my view, although the R. v. Evans case (supra) dealt with an inability to understand English due to a diminished mentalcapacity, the logic applied in R. v. Evans would be the same logic as would apply to the case of an accused, who was unable tounderstand English for some other reason, such as never having studied English or being deaf, to give just two such examples. [94] The cases of R. v. Ross (SCC), [1989] 1 SCR 3; R. v. Manninan (SCC), [1987] 1 SCR 1233and R. v.

Sherwood [1991] BCJ No. 4041(BCCA) are all cases setting out the importance of informing the accused of his right tocounsel. They held that it was a basic principle of law, that an accused be told of his right to counsel, right to silence and how he couldexercise those rights, and be told in such a way as he could understand those Rights. This is essential in order to ensure both the fairnessand the integrity of the entire criminal process in Canada. [95] The cases of R. v. Harris [2008] BCJ 2322 (para. 34 and 35) and R. v.

Nedelau [2008] BCPC 175 (para. 11 – 15) discuss theneed for the “informational component” to be told to the Accused in such a way that he can understand the full range of his options andhow he can go about exercising those options. A partial disclosure or partial understanding of those Rights amounts to an insufficientcompliance with the police officer’s obligations pursuant to the Charter. [96] Charter Rights are of no value if they are not understood by an accused.

If an accused does not understand, how can theypossibly decide whether or not they should exercise their Rights? [97] It really is a fairly simple and straightforward matter of common sense and law, that if someone appears not be understanding thecomplicated matters you are telling them about in English, then an interpreter should be called in. The interpreter could attend in personor by telephone.

It really is, as simple as that. [98] Certainly, it is not possible in every circumstance, to require that a police officer call an interpreter to the scene, no matter whenor where an Accused is, if he doesn’t appear to understand English well enough.

This Court recognizes that there are practical exigenciesthat occur in day to day policing, that make it unreasonable, to always obtain an interpreter immediately to attend the arrest scene. [99] However, in the particular case at Bar, given the advanced notice as to the prospect of language difficulties, the police should inadvance, have prepared to bring Chinese speaking officers or interpreters with them, or at the very least, to have brought with them,Search Warrants and arrest scripts, which were also written in Chinese characters.

[100] In Li’s case, his English was obviously poor, and indeed, he did say that he didn’t understand when the police officer read himhis Rights, in English. In my view, Li’s

Section 10(a) & (

b) Rights were violated. I will, later in the Judgment, deal with theconsequences of this breach when the s. 24(2) analysis is made. ARGUMENT: LI AND ZHOU’S

SECTION 8 CHARTER RIGHTS WERE BREACHED WHEN THE POLICE DID NOTSHOW OR READ THE CONTENTS OF THE SEARCH WARRANT TO THEM AT THE RAYMOND AVENUERESIDENCE (AND THIS BREACH CAN HAVE A RELEVANCE TO ALL THE OTHER CO-ACCUSED WHEN DEALINGWITH THE SECTION 24(2) ANALYSIS) [101]

Section 587.1(7) of the Criminal Code makes it mandatory for the police to show the actual Search Warrant to the occupants ofthe house which they are about to search. It is important that people know that the violation of their privacy is not at the mere whim ofthe police but rather, it is the result of a Judicial Officer authorizing the police to legally enter their private home. [102] Li was at the top of the stairs, wearing only his underwear when the police entered his residence on Raymond Ave.

They hadtheir guns drawn, they escorted him outside and then handcuffed him; [103] At no time did the police either show, read or explain the Search Warrant to Li (or his co-Accused Zhou, who had exited thehouse seconds before). [104] The starting point for this analysis, is the mandatory provision of s. 487.1(7) of the Criminal Code:

(7) A peace officer who executes a warrant issued by telephone or other means of telecommunication, other than a warrant issuedpursuant to subsection 256(1), shall, before entering the place or premises to be searched or as soon as practicable thereafter, give afacsimile of the warrant to any person present and ostensibly in control of the place or premises. [105] The case of R. v. Bohn 2000 BCJ 239 (BCCA), involved a situation where the police forgot to bring the Search Warrant withthem when they went to the targeted residence. Mme. Justice Ryan delivered the Judgment for the Court.

She quoted with approval, thefollowing points made by the Nova Scotia Court of Appeal, in the case of R. v. B. (J.E.) (1989) (NS CA), 52CCC (3rd) 224 at page 232: A search by police officers under a search warrant of private premises is a derogation from common law rights of ownership. Thenecessary formalities in the execution of the warrant must therefore, be strictly observed. One of these formalities is that the officerexecuting the warrant must have it in his possession at the time he executes it. [106] Mme.

Justice Ryan also quoted this statement from “The Search and Seizure Law in Canada” textbook at page 17.5: The reason for the requirement that an officer executing the warrant have it available for production, is to allow the occupant of thesearched premises to know: (1) why the search is being carried out, so as to enable the occupant to properly assess his or her legalposition; and (2) that there is, at least, a colour of authority for the search and that forcible resistance is improper.

This last rationale alsoplays a role in the second procedural requirement for a valid search, that the peace officers announce themselves before entering thepremises to be searched. [107] The BCCA concluded that a breach of the mandatory requirement that the police produce the Search Warrant, constituted aserious breach of the accused’s rights. Ryan, JA said at paragraph 34: 34 In my view these cases demonstrate the seriousness with which the privacy rights of the resident of a dwelling house must betreated.

A breach of the s. 29(1) duty imposed on the police deprives the resident of the home to see the legal authority on which theinvasion of his privacy is based. Although the police officers in this case advised the appellant of the existence of the warrant and thereason for their presence, they could not produce the warrant which confirmed that the search had prior authorization from anindependent body. Failure to produce the warrant on request, without good reason, is in my view a significant breach of s. 8. [108] In the case at Bar, the police did not forget to bring the Search Warrant with them.

They did bring the Search Warrant with thembut simply did not bother to show or read the Search Warrant to Li (or his co-Accused, Zhou). Accordingly, I find that the policebreached s. 29(1) of the Criminal Code and thereby breached Li and Zhou’s

section 8 Charter Rights. [109] I will deal with the consequences of this Charter breach later on in the Judgment during the Section 24(2) analysis with respectto Li, Zhou and the other Co-Accused. ARGUMENT: ZHOU’S

SECTION 10(

a) and (

b) CHARTER RIGHTS WERE BREACHED WHEN THOSE RIGHTS WEREREAD TO HIM IN ENGLISH BUT HE LACKED THE PROFICIENCY IN ENGLISH TO UNDERSTAND WHAT THEPOLICE OFFICER WAS TELLING HIM (THIS IS OF COURSE DIRECTLY RELEVANT TO ZHOU, BUT MAY ALSO BEINDIRECTLY RELATED TO THE OTHER CO-ACCUSED WHEN THE S. 24(2) ANALYSIS IS ADDRESSED. [110] As already discussed, the police arrived at Raymond Ave. to execute the Search Warrant, but just before they entered the house,Zhou came out of the front door; the police told him to get down on the grass; he did and he was immediately handcuffed. Zhou wasthen formally placed under arrest by Cst.

Summer. [111] Cst. Summer agreed that Zhou seemed to be “confused” when he was arrested. Cst. Summer testified that it was clear to himthat English was not Zhou’s first language; he spoke only a few words in English; and had a heavy accent. Cst. Summer did not hear himspeak enough English nor did he inquire how well he spoke or understood, English. Cst. Summer read Zhou his Charter Rights from the“arrest script”, which of course, was in English. Furthermore, Cst. Summer did not ask Zhou if he understood what had just been read tohim. [112] Interestingly, on the Voir Dire, when Cst.

Summer was asked why he did not ask Zhou if he understood or why he did not try to

explain things differently and more simply, he replied that, they had all been told to “stick to the script”. He said that ordinarily, heprobably would have tried to simplify the Charter warning for Zhou. [113] Zhou chose to testify on the Voir Dire. He testified using an interpreter.

Nothing can be inferred one way or the other by virtueof his choosing to use an interpreter in Court; [114] He told the Court that he moved to Canada when he was 14 years of age and that he had been here for 11 years; [115] He told the Court that his native language was Mandarin (Houwai dialect); that he only understood very simple and basicEnglish; and that he speaks only Mandarin with his family and friends; [116] He said that he had taken 2 separate ESL classes over a 2 ½ year period, although he did not successfully complete either ofthem; [117] He testified that his English was not proficient enough to understand most of what Cst.

Summer was saying to him. He said thathe did not know what the terms, “retain and instruct” meant, nor did he understand what, “Legal Aid duty lawyer” or his “right to remainsilent”, meant. He explained that the reason that he asked to call a friend rather than a lawyer, was because he did not understand that hecould (that is, that he had the right to) call a lawyer right then; [118] Another police officer, Cst. Hutton, testified that in his opinion, Zhou’s English abilities were poor; [119] Another police officer, Cst. Quan, was at the police station when Zhou arrived.

He testified that it was apparent to him thatZhou’s English was poor, so he asked him if he needed a Mandarin interpreter. Zhou said that he did. [120] This language issue concerning Zhou, is the same as was the language issue for Li. As I have already set out the reasoning andcase law in the portions of this Judgment dealing with Li’s English Language problems, I will not repeat them, here. [121] The conclusion with respect to Zhou is the same as it was for Li. There was a breach of Zhou’s 10 (

a) and (

b) Charter Rights,when the police failed to advise him of his Rights in a manner or in a language, that he could understand. [122] I will of course, say more about this later in the Judgment, when dealing with the consequences of this breach during the s. 24(2)analysis for Zhou whose Rights were directly affected and the other Co-Accused whose Rights might have been indirectly affected.

ARGUMENT: THE MANNER OF CARRYING OUT THE DECONTAMINATION PROCESS FOR LI AND ZHOU WASDONE WITHOUT ANY ATTEMPTS AT ALL TO PRESERVE THEIR PRIVACY AND DIGNITY AND THAT AMOUNTEDTO AN UNREASONABLE MANNER OF EXECUTING THE WARRANT AND THEREFORE A BREACH OF THEIRSECTION 8 CHARTER RIGHTS (BUT CAN ALSO AFFECT INDIRECTLY, ALL OF THE OTHER CO-ACCUSED WHENIT COMES TO THE SECTION 24(2) ANALYSIS) [123] The CLD arrived at Raymond Ave. at the same time as the police.

Their responsibility was to disassemble the ecstasy lab and topreserve the safety of the police, public, both Accused (Zhou and Li), the fire fighters and themselves. [124] As previously mentioned, when Zhou came out of the Raymond Ave. house, he was wearing only boxer shorts and a T-shirt.

When Li was arrested at the top of the stairs, inside the Raymond Ave. house, he was wearing only boxer shorts. [125] The police forced both Zhou and Li to lay down on the front lawn, on their stomachs; they were handcuffed; after severalminutes the police allowed them to sit up and wait on the front lawn until the fire fighters arrived. Zhou and Li were still wearing onlytheir underwear.

Zhou testified that because he didn’t understand English very well, he had no idea why he was waiting there out in thecold and half naked. [126] As previously discussed, each Accused’s English was too poor to understand the meaning of the word “decontaminate”; so theyjust sat there, not knowing what was going to happen next. They waited on the front lawn for about ½ an hour until the fire trucksarrived. [127] The reason that Li and Zhou had to be decontaminated was because they had been exposed to all the toxic chemicals present inthe ecstasy lab operating at Raymond Ave.

The method of decontaminating was to spray the men’s bodies with cold water from the firehoses. This was done on the city street in front of their Raymond Ave. home, mid-day, in late January and while they were half naked. [128] When Zhou testified on the Voir Dire, he said that quite a few members of the public were looking at them through the gapsbetween the parked fire trucks; he said that he felt very “ashamed” and he said that he saw people laughing. Although Cst.

Summer didnot notice anyone laughing, he agreed that it could have happened. [129] It would have been quite a simple matter to have provided blankets for Li and Zhou while they waited for the “hose down”. Itwould have also been quite simple, to have brought portable privacy screens to the scene. Cst.

Roe from the CLD said that they did havedifferent types of privacy screens which were kept at their Detachment but they didn’t bring any with them, even though they knew inadvance that they would be doing decontamination of the people who would be found inside the Raymond Ave. property; [130] As soon as the hosing down was finished, both Accused were allowed to dry themselves and then were given one piece paperjump suits to put on; [131] It is not an insignificant thing to force someone to stand or sit, half naked while being hosed down in front of their neighbours, inthe middle of the day and in the middle of winter.

This humiliation so easily could have been avoided, had the smallest of forethoughtbeen used by the police officers, the members of the fire department or the members of the CLD. [132] The cases of R. v. Collins (SCC), [1987] 1 SCR 265 and R. v. Golden both address the issue that if the manner a

Search Warrant is executed is unreasonable, that can amount to an violation of an accused’s s. 8 Charter Rights and thereby require a s. 24(2) Charter analysis. [ 133 ] I find that in the case at Bar, part of “the manner of execution” of the Search Warrant, included leaving the two men standing outside in their underwear and the manner the decontamination process was carried out. All of that, was an unreasonable part of the execution of the Search Warrant.

Accordingly, I find that both Li and Zhou’s s. 8 Charter Rights were breached. [ 134 ] I will say more about this later in the Judgement, when I deal with the Section 24(2) analysis with respect to Li and Zhou directly and to all the other Co-Accused, indirectly. ARGUMENT: THE POLICE HAD PLANNED TO USE A DYNAMIC (KNOCK BUT NO ANNOUNCEMENT PRIOR TO CRASHING IN THE DOOR) OF RAYMOND AVE. AND THIS WAS AN UNNECESSARY AND UNACCEPTABLE PLAN OF EXECUTING THE SEARCH WARRANT.

THIS ARGUMENT DIRECTLY AFFECTS THE TWO ACCUSED, LI AND ZHOU (BUT OF COURSE CAN INDIRECTLY AFFECT ALL OF THE CO-ACCUSED WHEN IT COMES TO THE S. 24(2) ANALYSIS) [ 135 ] Raymond Ave. was the only residence where the police expected to find an active ecstasy lab. It was the only residence where the CLD and fire fighters, were asked to attend with the police for the execution of the Search Warrant. [ 136 ] The Defence argued that a “dynamic entry” of Raymond Ave. was planned for in advance.

A “dynamic entry” is a situation where the police just arrive at the house and crash the door in (usually with a quick knock first and a few second wait before breaching the door).

In this type of entry, they do not announce, “Police, Open Up”, as compared with the usual execution of a residential Search Warrant, where the police first knock and announce “Police” wait a few seconds and then, if the police hear a positive response coming from the people inside, will wait until somebody comes to the door but if they suddenly hear sounds which sound like people running around or disposing of evidence, they immediately, without further notice, crash in the door. [ 137 ] Which manner of entry is used, will depend upon whether the police believe that the occupants are armed (in which case, they would use a “knock and announce” method); believe that the occupants have drugs or evidence in the house that could easily be disposed of or hidden if the parties inside were given any advance notice (even a minute’s notice of the police being at their door), they might knock, wait a couple of seconds and then bust in.

These are two examples of what are called “exigent circumstances” and would justify a dynamic entry into a house. [ 138 ] In this case, there certainly were contradictions between the various officers as to whether or not, in advance, a dynamic entry was planned for Raymond Ave. [ 139 ] Cst. Hsieh, Cpl. Michaud, and Sgt. Bhatti had differing views as to whether or not concrete plans were in place in advance, for a dynamic entry.

There was also a disagreement as to whether or not, the Richmond Detachment had a Policy to always use a dynamic entry (a quick knock and no announcement) in cases where “hard” drugs were involved, as opposed to when “soft” drugs were expected to be found inside the house. [ 140 ] The Defence cited a number of cases which clearly held that “a knock, announce and demand to open” technique, is always to be used, except in “exigent circumstances”.

The cases describe “exigent circumstances” as including circumstances where a knock and announce could prove dangerous to the police officers and/or the occupants of the house or where the police suspect that the type of drugs and/or the type of drug equipment in the house, could easily be destroyed or discarded if the occupants were given even just a half of minute, forewarning. See the cases of: R. v. McAllister 2000 BCSC 23 ; R. v. Vadon [2002] BCJ No. 2081 ; R. v.

Lau [2003] BCCA 337. [ 141 ] The Defence argued that the police were primarily interested in seizing ecstasy production equipment, ecstasy pills and mixers, at the Raymond Ave. residence. The large equipment that is normally used for the production of ecstasy couldn’t be disposed of or thrown out windows for example and certainly packaged ecstasy could not be flushed. Furthermore, the police were stationed all around the outside of the house and would see anything thrown out of any windows. The Defence argued that the police had no specific knowledge or concerns that these occupants would have weapons with them.

The Defence argued that it should be considered an exercise in bad faith that the police planned in advance, to use a dynamic entry in this case, or if indeed they had a Standing Policy always to use dynamic entry for any case involving “hard drugs”. The Defence argued that there was no doubt that a plan was in place to use a dynamic entry but the plans were only thwarted by the sudden discovery of an impenetrable steel gate at the front door, combined with the coincidence of Mr.

Zhou suddenly coming out of the front door. [ 142 ] I agree however, with learned Crown counsel, that the Defence argument turns out to be strictly academic, given that a dynamic entry was never used at Raymond Ave. [ 143 ] If a dynamic entry was not used to carry out the search, in my view any argument that it was planned or may have been planned, or was police Policy, is of no importance in deciding whether or not the manner of search used in this case, was a reasonable one or not. A dynamic entry was never used.

Here the entry was not dynamic, so whether they had or had not planned for a dynamic entry, is of no consequence when deciding if Charter Rights were breached.

One cannot breach another’s Charter Rights by just thinking about doing so. [ 144 ] In the alternative, the Defence argued that if the police Policy was to always use a dynamic entry for hard drug searches, that would be contrary to the Charter and should be considered at least, if not a breach in itself, should be considered as some evidence of overall “bad faith” and taken into account in the section 24(2) analysis. [ 145 ] However, I was not satisfied that the plan “probably” was to do a dynamic entry nor was I satisfied that it was probably a matter of established Richmond RCMP Policy to always do “dynamic entries” in cases where “hard drugs” were involved. [ 146 ] Accordingly, I do not find that there was a breach of Li and Zhou’s

Section 8 Rights by virtue of a planned or pre-ordained

Policy of the Richmond RCMP to make a dynamic entry into Raymond Ave. ARGUMENT: A CHALLENGE TO THE SEARCH WARRANT THAT WAS ISSUED FOR 107 – 7480 GILBERT ROAD, RICHMOND, BC.

THIS ARGUMENT DIRECTLY AFFECTS THE ACCUSED HOU AND THE ACCUSED HUANG (BUT CAN OF COURSE INDIRECTLY AFFECT ALL OF THE CO-ACCUSED WHEN IT COMES TO THE SECTION 24(2) ANALYSIS) [ 147 ] Counsel for both accused, Hou and Huang, argued that the ITO presented to the Justice was insufficient for a lawful Search Warrant to have been issued by the Justice, to search the specific Unit 107, of the condominium complex at Gilbert Rd. in Richmond. [ 148 ] Unit 107 Gilbert Rd. is where the Crown alleged that the synthesized ecstasy was stored before being shipped to Raymond Ave. and then to Toronto and elsewhere. [ 149 ] Hou and Huang were found at Unit 107 Gilbert Rd. on the day that the Search Warrant was executed. [ 150 ] Four large boxes containing individually wrapped packages of ecstasy pills, ecstasy powder, weigh scales, packaging material, vacuum sealers and invoices from a transport company which the police believe that the Co-Accuseds were using to send drugs to destinations outside of Vancouver, were found at Unit 107 of the Gilbert Rd. property. [ 151 ] Defence Counsel argued that Search Warrants are supposed to be “location specific”, meaning that the specific location which the police wish to search, must be shown to be connected with one or more of the Accused and be shown to be sufficiently linked to the illegal operation under investigation. [ 152 ] The argument advanced conceded that there were ample observations set out in the ITO to establish the movement of various Accused and two vehicles (registered to Huang), going and coming from 7480 Gilbert Rd. to Raymond Ave. and Halifax Ave. [ 153 ] However, Defence Counsel argued that the ITO lacked any observations of any of the Accused or any of the people driving Huang’s vehicles, ever going into or out of unit 107, specifically.

Defence argued therefore, that the material in the ITO was not “location specific” and accordingly the Justice could not reasonably, grant a warrant to search that specific unit. [ 154 ] I cannot agree. The ITO contained sufficient observations for the Justice to have reasonably concluded that a warrant be issued to search Unit 107, specifically.

The following are the observations which were set out in the ITO which show the necessary connection of Unit 107 to the alleged drug operation by Huang, his Co-Accuseds and to the two other residences alleged to be locations involved, namely, Raymond Ave. and Halifax St. in Richmond: (

i) Paragraph 16E of the ITO identifies Huang (through his BC Driver’s licence) as residing at 107-7480 Gilbert Rd; (ii) Paragraph 16(

E) of the ITO identifies Huang (through his Motor Vehicle Registrations at the Motor Vehicles Branch) as being the registered owner of both the white Chevrolet van and the blue Honda Civic which the police had under surveillance over the 14 month period, and saw coming and going between the 3 residences; (iii) Huang’s addresses on both Motor Vehicle Registration documents, showed that his residence was 107-7480 Gilbert Rd. Richmond; (iv) Paragraph 56 stated that Huang filed an ICBC Accident Report concerning an accident involving the white Chevrolet van in November 2006 and the residential address shown for Huang on the Accident Report was, 107-7480 Gilbert Rd.; (

v) Paragraph 86 stated that on January 24, 2007, Huang was seen driving his blue Honda Civic from Gilbert Rd. to Raymond Ave. and back to Gilbert Rd.; (vi) Paragraph 89 stated that on January 25. 2007, Huang was seen driving his blue Honda Civic to Raymond Ave., where he got out and delivered 56 flattened cardboard boxes to the Raymond Ave. residence; (vii) Paragraph 90 stated that on January 26,2007 Huang was seen leaving Raymond Ave. and driving to Gilbert Rd. with Zhou as his passenger; (viii) Paragraph 90 stated that on January 26, 2007 Huang was observed leaving Gilbert Rd. in his white Chevrolet van, driving to Raymond Ave., loading 8 cardboard boxes into his van from the Raymond Ave. house, delivering them to a transport company, driving to Halifax St. and then driving back to Gilbert Rd.; (ix) Paragraph 90 stated that on January 26, 2007, Huang was seen driving his blue Honda Civic to Raymond Ave., going into Raymond Ave., coming out with a shopping bag, driving to a nearby parking lot, giving the shopping bag to a unidentified man and then driving back to Gilbert Rd.; (

x) Paragraph 90 stated that later in the evening of January 26, 2007, Huang drove his white Chevrolet van to Raymond Ave., his passenger was Zhou; they both went into Raymond Ave. together; shortly thereafter Zhou brought out a heavy box, loaded it into the white Chevrolet van; then, Huang and Zhou drove over to Gilbert Rd. and entered the building; (xi) Paragraph 99 stated that on January 28, 2007, Huang, Zhou, and an unidentified male, left Gilbert Rd. in the blue Honda Civic; they all went into Safeway and bought 14 bottles of food colouring; they drove to Raymond Ave.; Huang and the others, carried the Safeway bags into Raymond Ave.; shortly thereafter Huang came out and went to the trunk of his blue Honda Civic and took out 6 plastic bags containing white powder, put them into a gym bag and took the gym bag into Raymond Ave.; all 3 men then left Raymond Ave. and drove back to Gilbert Rd.; they parked beside the white Chevrolet van in the underground parking lot of Gilbert Rd.; (xii) Huang then, briefly went into the white Chevrolet van, came out quickly and got back into the blue Honda Civic, drove back

to Raymond Ave. where Huang unloaded some heavy object from the blue Honda Civic and took it into Raymond Ave.; Huang and the others exited Raymond Ave. within a short time, Huang was carrying a large heavy box which he put in the blue Honda Civic and then drove back to Gilbert Rd.; (xiii) The ITO set out some other observations involving Huang’s blue Honda Civic, although Huang was not in the car.

The police observed unknown males drive the blue Honda Civic from Raymond Ave. to a dumpster in Richmond, where they threw out two bags of garbage; when the police collected the garbage, they found it to contain a large number of ecstasy pills, a large quantity of ecstasy powder, 2 large empty boxes labelled “Procaine” (which is an adulterate used to make ecstasy pills), an instruction manual for a pill press, 7 food colouring bottles, 720 empty bottles labelled “caffeine tablets” (which are also used as an adulterate to make ecstasy pills), and an empty electronic sealer box. [ 155 ] The conclusion that I reach, is that there was an overwhelming amount of evidence contained in the ITO to link Huang, his cars and his activities to the overall drug organization under investigation involving the three residences of Gilbert Rd., Raymond Ave. and Halifax St.

The Defence argument as to there not being any evidence which could be said to have been “location specific” is rejected. ARGUMENT: THE DEFENCE ARGUED THAT THE DYNAMIC ENTRY OF THE RESIDENCE OF HUANG AND HOU AT THE GILBERT RD.

PROPERTY DEMONSTRATED AN UNREASONABLE AND UNLAWFUL MANNER OF CARRYING OUT OF THE SEARCH WARRANT AND THEREFORE CONSTITUTED A DIRECT BREACH OF HUANG AND HOU’S S. 10 RIGHTS (AND AN INDIRECT BREACH OF THE OTHER CO-ACCUSED’S RIGHTS FOR CONSIDERATION IN THE S. 24(2) ANALYSIS [ 156 ] Case law has decided that in the absence of some “exigent circumstances”, the usual manner of executing a residential Search Warrant must be the non-dynamic entry method.

The dynamic entry method should only be resorted to when there are exigent circumstances which require the police to “bust down” the door quickly without alerting the occupants that they are about to enter the house. [ 157 ] As previously discussed, the cases describe “exigent circumstances” as situations where a knock and announce, could prove dangerous to the police officers and/or the occupants of the house; or situations where the police expect that the type of drugs or the type of drug e

[…]