R. v. Leong Date:, 2014 BCPC 406

Citation: R. v. Leong Date: 20140610 2014 BCPC 0406 File No: 57187 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MING HEY LEONG RULING ON VOIR DIRE NUMBER 2 OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: C. Hough Counsel for the Defendant: M. Rowan Place of Hearing: Richmond , B.C. Dates of Hearing: April 22, May 15, 2014 Date of Judgment: June 10, 2014

[ 1 ] Mr.

Leong is charged with six counts of importing into Canada, on July 21, 2010, animals, (various types of corals,) otherwise then under the authority of and in accordance with a permit issued under section 10(1) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (the “ Act ”), and thereby committing an offence under s. 22(1) of the Act . [ 2 ] By way of Notice of Motion filed on January 21, 2014, he sought Charter relief in the form of an order excluding certain items obtained from him by Wildlife Officers on July 21, 2010 from evidence at trial, as well as two statements.

Following a ruling partly in his favour, (reasons delivered on February 27, 2014), he next sought Charter relief in the form of an order excluding certain evidence obtained by Wildlife Officers on July 22, 2010. He describes this second application at the first paragraph of his written submissions dated May 14, 2014: The Defendant, Mr. Leong applies for remedy under section 24(2) of the Charter of Rights and Freedoms for the exclusion of evidence seized by Wildlife Officers during a warrantless search of the Defendant’s personal property on July 22, 2010.

Furthermore, he is applying for exclusion of all evidence derived from the said warrantless search. [ 3 ] The evidence Mr. Leong seeks to exclude on this second V oir Dire is coral that he had had imported from Indonesia to Vancouver; the coral had been shipped via China Airlines, arrived at the Vancouver International Airport on July 21, 2010 and was in the bonded area of a Customs warehouse associated with the airport on July 22, 2010. The shipment had not been released to Mr. Leong by Customs at the time of the challenged examination by Wildlife Officers. [ 4 ] In

summary, Mr. Leong’s position is as follows: i. the July 22, 2010 search involved a breach of

section 8 of the Charter ; ii. the search of the boxes of coral would not have occurred, but for the Charter breaches that occurred on July 21, 2010 in relation to Mr. Leong, personally; iii. closely connected to the second point, above, is that the evidence was obtained on July 22 nd as a result of a number of Charter breaches that had occurred during the prior twenty-four hours in relation to Mr. Leong, including breaches of

section 8 , 9 , 10(

a) and 10(

b) of the Charter . (This argument arises from certain findings I made in relation to events that occurred in the public area of the Customs warehouse on July 21, 2010. [see: R. v.

Leong , Voir Dire #1 Reasons: 2014 BCPC 99 ]); iv. the Wildlife Officers were not conducting an ‘inspection’ within the meaning of the Act but were, rather, conducting a penal investigation, when they examined the coral shipment on July 22 nd ; v. the evidence should be excluded pursuant to section 24(2) of the Charter , particularly in light of the cumulative Charter breaches in this case. [ 5 ] The Crown opposes the application upon the following bases: i. Mr. Leong has not established any expectation of privacy vis-à-vis the items subject of the application - a prerequisite to a successful

section 8 Charter challenge; ii. the Wildlife Officers were lawfully entitled to inspect the shipment, pursuant to

section 14 of the Act ; iii. the items examined on July 22, 2010 are not “derivative evidence”; that is, their discovery did not flow causally and temporally from actions taken by state agents which infringed the Charter ; iv. if a breach is found, the evidence ought not to be excluded. BACKGROUND [ 6 ] As mentioned above, Mr. Leong had arranged for the importation from a foreign country of live marine animals into Canada.

This was a regulated, commercial transaction. [ 7 ] Such an activity is subject to a number of laws and at least one international convention, including the Convention on International Trade in Endangered Species of Wild Fauna and Flora, (“CITES”) ; the Act , and the Customs Act . The relevant provisions of CITES and the Act are set out at pages 2 - 5 of Reasons re: Voir Dire No. 1 . For ease of reference,

section 12 of the Customs Act is set out below: 12(1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. [ 8 ] There is no issue that the marine animals were transported by air from Indonesia, crossing Canada’s international border at some point and arriving on Canadian soil at the Vancouver International Airport.

They were then taken by Customs as is the usual and expected course of such international shipments. [ 9 ] As noted at paragraph 20 of the Reasons on Voir Dire No. 1 , upon being advised of the coral importation at approximately 12:30 pm on July 21, 2010, Wildlife Officer Butchart decided that the shipment would be inspected by Wildlife Officers. Such inspections are provided for under

section 14 of the Act . [ 10 ] As intimated above, and dealt with in detail in the Reasons re: Voir Dire No. 1 , the Wildlife Officers had dealings with Mr. Leong later in the day of July 21, 2010 in the public area of the Customs warehouse. I ruled that a statement made by him to the Wildlife

Officers, as well as documents held by him which were seized by them, were inadmissible pursuant to s. 24(2) of the Charter, havingfound breaches of his rights guaranteed by

section 8, 9 and 10 of the Charter. These are the events and findings which Mr. Leong says combine to render the Wildlife Officers’ examination of the coral on July 22nd an unlawful search. [11] After concluding their dealings with Mr.

Leong in the evening of July 21st, the Wildlife Officers returned to the Customswarehouse to examine the coral shipment around 11:00 o’clock the following morning, along with a number of re-enforcements and amarine biologist from the Vancouver Public Aquarium, whose presence was enlisted to help identify species as well as care for theanimals. [12] During the July 22nd examination, which was conducted in the bonded Customs warehouse, the Wildlife Officers located coralwhich was not covered by the CITES permits which Mr. Leong had obtained. [13] The offending coral had been listed in one of the documents which Mr.

Leong had possessed on July 21st and which I ruledinadmissible. [14] During cross-examination on this voir dire, Wildlife Officer Butchart denied discovering the illicit coral as a result of thedocument; rather, she testified that the identification of the offending corals was not made on the basis of the invoices seized from Mr. Leong on July 21st. ISSUES i. Is

section 8 of the Charter triggered in the circumstances of this case? ii. If it is triggered, was it breached? iii. If it was breached, should the evidence gathered as a result of the breach be excluded pursuant to section 24(2) of theCharter? DISCUSSION First Issue: Is

section 8 of the Charter triggered in the circumstances of this case? [15]

Section 8 of the Charter states: “Everyone has the right to be secure against unreasonable search or seizure.” [16] In R. v. Edwards, (SCC), [1996] 1 SCR 128, the Supreme Court of Canada made it clear that, in order toengage the protection of

section 8 of the Charter, an accused must establish that s/he had a reasonable expectation of privacy: [33] It is important to emphasize that generally, the decision as to whether an accused had a reasonable expectation of privacy must bemade without reference to the conduct of the police during the impugned search. There are two distinct questions which must beanswered in any s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whetherthe search was an unreasonable intrusion on that right to privacy. See Rawlings v. Kentucky, 448 U.S. 98 (1980).

Usually, the conductof the police will only be relevant when consideration is given to this second stage. (Textual bolding added). [17] In Edwards, supra, the court held that the answer to that first

section 8 line of inquiry was ‘no’; this finding was dispositive ofthe application in the case: [39] In the case at bar, there is no need to consider the reasonableness of the search since the appellant has not established the requisiteexpectation of privacy…. [18] In Edwards, supra, Cory, J summarized the principles relevant to a

section 8 analysis: [45] A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicableto the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure againstunreasonable search or seizure can be derived. In my view, they may be summarized in the following manner: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, (SCC), 1987] CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619. 2.

Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra. 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. See Pugliese, supra. 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra. 5.

A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, atp. 54, and Wong, supra, at p. 62. 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search;

(ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.” See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256. 7.

If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determinewhether the search was conducted in a reasonable manner.” [19] When the factors set out in sub-paragraph 45(6) of Edwards are examined in this case, the only factor militating in favour of afinding that Mr. Leong had an expectation of privacy is the third, in that he owned the coral; he did not, however, own (or control) theplace of the search: (

i) Was Mr. Leong present at the time of the search? No. (ii) Possession or control of the property or place searched? None. (iii) Ownership of the property or place? Of the coral, yes; of the search place, no. (iv) Historical use of the property or item? None. (

v) The ability to regulate access, including the right to admit or exclude others from the place? None. (vi) The existence of a subjective expectation of privacy? Here, the evidence was not particularly strong and, in my view, given the context of the incident (examination/search) on the 22nd ofJuly, the objective reasonableness of any subjective expectation of privacy was lacking. (See: (vii), below). (vii) The objective reasonableness of the expectation? Not applicable. [20] Edwards, supra, was applied in R. v. Cole, 2012 SCC 53, wherein the “totality of the circumstances” test in relation to

section 8was described as requiring four lines of inquiry: [39] Whether Mr. Cole had a reasonable expectation of privacy depends on the “totality of the circumstances” (R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, at para. 45). [40] The “totality of the circumstances” test is one of substance, not of form.

Four lines of inquiry guide the application of the test: (1) anexamination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in thesubject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) anassessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of thecircumstances (Tessling, at para. 32; Patrick, at para. 27)…. [21] The “subjective expectation of privacy” factor, and the assessment of its reasonableness, brings into focus the importance ofcontext in the analysis: In Cole, supra, the court stated: “[22] The respondent argues that the appellant had a low expectation of privacy because the bus companies owned the lockers and had amaster key so they “could access the lockers at any time”.

True as this may be, it does not remove the reasonable expectation ofprivacy. A reasonable expectation of privacy is contextual. The expectation does not have to be of the highest form of privacy totrigger the protection of s. 8. For example, someone who rents a hotel room does not own the room, and very likely understands thathotel management has a master key. A reasonable understanding is that hotel staff will access the room, but for limited purposes. There is therefore a reasonable expectation of some privacy in the room, which can be enhanced by the display of a sign requestingprivacy. (R. v.

Buhay, 2003 SCC 230, per Arbour, J., bolding added).” [22] In R. v. Nagle, 2012 BCCA 373, (lv to SCC dismissed (SCC)), the British Columbia Court of Appealapplied the contextual analysis to international airports: [32] It is now well-established that a contextual analysis applies to Charter issues. (R. v. Jacques, (SCC), [1996] 3SCR 312, at 323 - 24). It is also well-established that persons entering Canada understand that they will be asked routine questionsand that their bags may be searched randomly. Interference with their independence and privacy is expected.

This is justified onthe basis of protecting Canadian borders from the perspective of national security, sovereignty, importation of illegal substancesincluding drugs, and excess amounts of currency, invasive species and a myriad of other matters contained in both federal and provincialstatutes, (per Bennett, JA, bolding added). [23] At paragraph 34, Bennett JA stated: [34] In the context of border crossings, routine questioning, the search of baggage and pat-down searches are standard practices,applicable to every ordinary traveller, and is expected and tolerated by anyone wishing to travel internationally.

This conduct by

border agents does not engage constitutional rights, including detention, the right to counsel or a reasonable expectation of privacy. (Bolding added). [ 24 ] In my view, these principles are apposite to regulated, commercial importations where any sense of personal privacy is even more attenuated. [ 25 ] While Mr. Leong urged me to find that the Wildlife Officers’ statutory inspection powers under

section 14 of the Act were spent as of the night of July 21 st and that, as a result, he had a reasonable expectation of privacy vis-à-vis the Wildlife Officers, I was not referred to any case law supporting this proposition. In the result, I am not persuaded that, in the context of a regulated, commercial shipment of live marine animals imported into Canada and still in a Canada Customs bonded site, Mr. Leong had any reasonable expectation of privacy in relation to his imported coral that triggers the protection of

section 8. [ 26 ] Referring back paragraph 33 of Edwards , supra , quoted above, it seems that the Wildlife Officers’ actions in relation to Mr. Leong, personally, on July 21 st , are not relevant to his reasonable expectation of privacy, which is the issue to be determined at this first stage of the

section 8 inquiry: that is to say, the actions of the Wildlife Officers on July 21 st do not result in Mr. Leong having a higher subjective expectation of privacy in relation to the regulated commercial shipment of live marine animals he had imported into Canada, than he had before the events of July 21, 2010. [ 27 ] There is no evidence coming close to a balance of probabilities that Mr. Leong had any reasonable expectation of privacy in the imported coral held in the secure, bonded Customs warehouse on July 22, 2010. To use the language of Nagle , supra , Mr.

Leong must have expected that his imported commercial shipment was going to be inspected as he sought to bring it into Canada over the country’s sovereign border. [ 28 ] Given that the answer to the first issue is “No, Mr. Leong did not have a reasonable expectation of privacy and, therefore,

section 8 is not engaged,” it is not necessary to consider the second and third issues raised in this application. [ 29 ] The application is dismissed. ______________________________ L. SMITH, P. C. J.