R. v. Chau, 2020 BCPC 290

Citation: R. v. Chau 2020 BCPC 290 Date: 20200924 File Nos: 87833-3-C; 87833-4 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. OLIVER CHAU and ANH QUOC NGUYEN RULING ON VOIR DIRE #7 SECTION 24(2) APPLICATION OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: J. Le Dressay Counsel for the Defendant Chau: W. Jessop Counsel for the Defendant Nguyen: C. Muldoon Place of Hearing: Kelowna , B.C. Dates of Hearing: August 31, September 1, 2, 3, 11, 2020 Date of Judgment: September 24, 2020 Introduction

Introduction [ 1 ] Mr. Nguyen applies to this Court pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms for the exclusion of several bodies of evidence. They are as follows: 1. All evidence flowing from the use of a tracking device that was installed on cell phone number 250.307.6738 (the “Phone” hereafter) between September 27, 2017 and November 21, 2017; 2. All evidence seized from Unit 311 – 883 Academy Way Kelowna, BC on November 2, 2017 (“Academy Way” hereafter); 3.

All evidence seized from #203-3550 Woodsdale Road Lake Country, BC on November 2, 2017 (“Woodsdale” hereafter); 4. 6 cell phones seized from his person and the vehicle he was in on November 21, 2017; 5. Any data extracted from the 6 above cell phones. Background Facts [ 2 ] The police commenced a lengthy investigation into an alleged drug trafficking organization in or about September 2017. One of the first investigative techniques employed was the application for a tracking warrant to track the Phone. Confidential informants suggested that this number was associated to “Jerry’s drug trafficking group”.

The police suspected “Jerry” to be Mr. Nguyen. In Voir Dire #1 , R. v. Chau , 2019 BCPC 200 , this Court held that this tracking warrant ought not have been issued and set it aside. I concluded then, as I do now, that the use of that tracking device was a breach of Mr. Nguyen’s s. 8 Charter rights, namely his right to be secure against unreasonable search or seizure. [ 3 ] As the investigation unfolded, the police followed the trail to Academy Way. On November 2, 2017, they sought and were granted a search warrant.

The state of the apartment suggested that someone was living there, and the police found the following items inside: • Rental car agreements in the name of Anh Nguyen, some dating back to March 2017; • Hand written document with Selina Mitchell’s name on it; • Greyhound boarding ticket in the name of Oliver Chau; • Receipts related to cell phones; • Bank deposit receipts with the names of the owners of Academy Way; • Documents related to the purchase of a vehicle involved in this investigation; • Residential tenancy agreement for Academy Way, listing Donald Nguyen and Tony Chau as tenants [Cpl.

Fradette believed Donald Nguyen to be Mr. Anh Quoc Nguyen]; • Score sheets; • 43 packages of controlled substances; • New cell phones. [ 4 ] In Voir Dire #4 ( R. v. Chau , 2019 BCPC 304 ), counsel agreed that, since the tracking warrant was set aside in Voir Dire #1 , and the fruits of that tracking warrant ought to be excised from the Information to obtain a search warrant (ITO) for Academy Way, that search warrant should also be set aside as it pertains to Mr. Nguyen. In the result, it was conceded that the search of Academy Way was also a breach of Mr.

Nguyen’s s. 8 rights. [ 5 ] In the same voir dire , however, this Court concluded that the search warrant with respect to Woodsdale ought to be upheld. This is because even after excising the fruits of the tracking warrant from the Woodsdale ITO, there remained sufficient grounds on which the warrant could have been issued.

The search warrant at Woodsdale was also executed on November 2, 2017 at which time the police found the following: • Individually packaged pieces of suspected cocaine, heroin/fentanyl, and methamphetamine, the total weight of which was approximately 16 ounces; • Items related to the preparation or sale of drugs (Pyrex glass bakeware dishes, razor blades, folded playing cards, sandwich bags, etc.) • Car rental agreement in the name of Anh Nguyen; • Vehicle registration documentation in the name of Shawn Stone; • Sale receipt related to a cell phone. [ 6 ] On November 21, 2017, the police were again monitoring the tracking device.

They realized that the Phone had returned to the Okanagan Valley. In the days/weeks prior, it had travelled to and from the Metro Vancouver area. The police conducted surveillance and followed the Phone which led them to a white jeep that was being driven by Mr. Leonard Ngo, with Mr. Nguyen as a passenger. The police intended initially to conduct surveillance, however, when they realized that Mr. Ngo was a prohibited driver, they decided to stop

the vehicle for public safety reasons. At the same time, the police were mindful that the Phone was in the vehicle and wanted very much to seize it. When the jeep was stopped, Cpl. Fradette, the main investigator in this case, detained Mr. Nguyen for the drug trafficking investigation. Cpl. Fradette seized 4 cell phones from Mr. Nguyen’s sweater pocket, and 2 more cell phones from the jeep. In Voir Dire #5 , I held that the seizure of the cell phones from Mr. Nguyen was a breach of Mr. Nguyen’s s. 8 rights since at the time, he was not under arrest. Cpl.

Fradette had merely detained him and the authority to search and seize evidence did not flow from an investigative detention. The search and seizure of the cell phones went beyond a pat down for safety reasons. [ 7 ] After the 6 cell phones were seized, Cpl. Fradette sought and was granted a search warrant on November 23, 2017 which authorized the extraction of the data from those devices. In Voir Dire #6 , counsel for the Crown conceded that, with the excision of the fruits of the tracking warrant, the warrant to extract data could not stand. This is because the subject of the warrant is the Phone itself.

Deleting any reference to the Phone renders the entire process nonsensical. With that concession, I concluded then, as I do now, that extracting the data from the cell phones without a warrant was a breach of Mr. Nguyen’s s. 8 rights. The law on s. 24(2) [ 8 ] The factors set out in R. v. Grant , 2009 SCC 32 dealing with s. 24(2) of the Charter are now well known. They consist of three considerations which place focus on the state, the accused, and the trial process.

Specifically, courts must take into account all of the following when deciding, on balance, whether the admission of the impugned evidence would bring the administration of justice into disrepute: 1. Seriousness of the Charter- infringing state conduct; 2. Impact on the Charter- protected rights of the accused; and 3. Society’s interest in adjudicating the case on its merits. [ 9 ] With respect to the first inquiry, the court is focussed on the state’s conduct, but the goal here is not to punish the police.

Rather, the objective throughout this, and the other inquiries, must remain on the public confidence in the administration of justice. As with many aspects of law, there will be a continuum of state conduct that could result in a Charter breach. They will range from minor inadvertent lapses, to intentional fraudulent deceit. At para. 73 of Grant , the Supreme Court of Canada said: [73] This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach.

The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.

In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter . [ 10 ] Regarding the second line of inquiry, the court must examine the extent to which the Charter- protected interests of the applicant were actually impacted by the constitutional violation.

Just like seriousness of Charter -infringing state conduct, impacts will also vary in severity. At para. 76 of Grant , the Supreme Court of Canada said: [76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [ 11 ] Regarding the third inquiry under Grant , this Court must assess whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion (see para. 79 of Grant ).

Informing that inquiry are the following non-exhaustive considerations: reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the allegations. Reliable evidence, all else being equal, favours admission. A body of evidence that is crucial to the Crown’s case may militate in favour of admission since, without it, society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law” may be prejudiced ( Grant at para. 79 ).

It has also been said that the seriousness of the allegations is also a valid consideration since, the more serious an allegation, the higher society’s interest in the adjudication of the case on its merits. However, this last factor has been said to cut both ways. The more serious an allegation, the higher the society’s expectation that state conduct be constitutionally compliant. Certainly, in the jurisprudence that has developed since Grant , evidence has been excluded even in the most serious of allegations.

It is important not to let the seriousness of the allegations overwhelm, or even play an unduly predominant role, when weighing all the factors on the balance. [ 12 ] The interplay between these three lines of inquiry above was enlighteningly discussed in R. v. McGuffie , 2016 ONCA 365 . At para. 62, Doherty J.A. said this: [62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state- infringing conduct and the greater the impact on the Charter - protected interests, the stronger the pull for exclusion.

The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant . The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494, at paras. 33-34 . [63] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g.

Harrison , at paras. 35-42 ; Spencer , at paras. 75-80 ; R. v. Jones , 2011 ONCA 632 , 107 O.R. (3d) 241 , at paras. 75-103 ; Aucoin , at paras. 45-55 . If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 , at paras. 81-89 ; R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 , at paras. 98-112 . Similarly, if both of the first two inquiries provide weaker support for

exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant , at para. 140 . [ 13 ] Having reviewed the relevant considerations on an application for exclusion of evidence under s. 24(2) , I now turn to the specific bodies of evidence Mr. Nguyen seeks to exclude and apply the framework above. Evidence arising from the tracking warrant [ 14 ] The police applied for, and were granted, a warrant to track the Phone for a period of 60 days, commencing September 27, 2017. At all material times, the police thought they were acting under lawful authority.

And although I found during Voir Dire #1 that the warrant should not have been issued, I did so on the basis that the information contained in the ITO, in my view, did not provide sufficient grounds to satisfy the statutory prerequisite for the tracking warrant. At no time did I find the affiant Cpl. Fradette deceitful or misleading. On the contrary, during Voir Dire #5 , Cpl. Fradette testified for the better part of two days, at the end of which I found him to be a credible witness.

Accordingly, the seriousness of the Charter- infringing state conduct could not be said to be significant in this case. [ 15 ] Additionally, it would appear that the issue raised in Voir Dire #1 on the requirements of s. 487.1 of the Criminal Code had not previously been litigated. I was told that what the police did in this case, and the information contained in the tracking ITO, were fairly common in these investigations at the time. Under these circumstances, the Supreme Court of Canada has endorsed some latitude to be given to the police. At para. 95 of R. v.

Fearon , 2014 SCC 77 , the Court said: [95] In my view, the first factor favours admission of the evidence. There is not here even a whiff of the sort of indifference on the part of the police to the suspect’s rights that requires a court to disassociate itself from that conduct. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence.

That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence. [Emphasis added.] [ 16 ] For these reasons, the first inquiry into the tracking evidence favours admission. [ 17 ] Regarding the second inquiry, I find that the impact on Mr. Nguyen’s privacy interests was extremely serious. Over the course of almost 2 months, the police were authorized to track the Phone electronically. Unlike physical surveillance, electronic surveillance of this nature is around the clock. The tracker operates 24/7 and narrows the Phone’s location to within an 11 metre range.

There is then an electronic record generated from this surveillance which was archived so that the police could look back on where the Phone had been after the fact. In addition, the police could pull up live surveillance remotely, using an iPad or a similar device. This method of surveillance is very intrusive both in terms of its reach and the method by which the police could access the information. [ 18 ] From September 27, 2017 until the execution of the Academy Way and Woodsdale search warrants on November 2, 2017, the police monitored very closely the comings and goings of the Phone.

From the tracking device, they were able to detect the comings and goings of Mr. Nguyen. They found out that he travelled to Surrey and Burnaby on October 12, 2017. Thereafter, they learned of Mr. Nguyen’s residential address, in a large part, because of the tracker. They also learned that he returned to the Okanagan area on a number of occasions, including being in the Lake Country/Vernon area on November 21, 2017. By way of example, Cpl.

Fradette learned, in part, the following: • The Phone travelled from Burnaby, BC [from the area of Metrotown Mall and Anh Quoc Nguyen’s residence on Silver Street] to the Okanagan in the afternoon of November 8; • The phone was located in Vernon, BC on a number of occasions between November 8 and 10, 2017.

The phone appeared to be located at or near a motel at the intersection of Highway 97 and Highway 33 in Kelowna on the evenings of November 8 and 9, 2017; • In the evening of November 10, 2017, the phone returned to the area of the Metrotown Mall in Burnaby, BC; • In the afternoon of November 13, 2017, the phone departed the area of the Metrotown Mall in Burnaby, BC and travelled to the Okanagan.

The phone appeared to be located in the area of the Super 8 Motel in Lake Country, BC on the evening of November 13, 2017; • In the early morning hours [approximately 2:15 am] of November 15, 2017, the phone returned to the area of the Metrotown Mall in Burnaby, BC. [ 19 ] The above is only a superficial and partial overview of what the police learned using the tracker. In reality, the police knew where the Phone was every minute to within an 11 metre radius during this period.

The information was also made available after the fact as well as capable of being live-monitored. [ 20 ] It goes without saying that the Charter protects citizens from this type of state surveillance without proper judicial authorization. Knowledge of where a person is, where they go, at what time they are there, and for long are very intimate information. From them, one can draw all manners of readily available inferences into a person’s personal life and activities. The use of the tracking device in this case intruded very seriously into the privacy interests of Mr.

Nguyen. [ 21 ] The Crown very able argued that, in this case, the tracking of the Phone, was somewhat divorced from the tracking of Mr. Nguyen. There were only two occasions on which there was a marriage of surveillance on Mr. Nguyen and the tracking information showing Mr. Nguyen at the same location. Once when Mr. Nguyen was seen on CCTV footage leaving Academy Way and traveling to Surrey on October 12, 2017.

And then again when he was arrested near Vernon on November 21, 2017. [ 22 ] Although this Court set aside the tracking warrant on the basis that there was no objective basis to believe that the Phone was something ordinarily carried by Mr. Nguyen, the evidence, as it unfolded after the fact, tends to suggest otherwise. For good portions of October 2017, the Phone was located at 6333 Silver Ave. in Burnaby, the known address for Mr. Nguyen. The incidents on October 12, and November 21, 2017 simply bookended those observations.

As such, I conclude that tracking the Phone, practically speaking and for the most part, was the equivalent of tracking Mr. Nguyen.

[23] In further answer to the Crown’s submission, although there were only two occasions on which surveillance confirmed that Mr.Nguyen was at the same location as the Phone, I think I would be right to assume that those are the very occasions from the trackingevidence on which the Crown wishes to rely at trial. On both of those occasions, the Crown is likely to argue that the tracker providesvery strong circumstantial evidence that Mr. Nguyen is indeed guilty of the charges laid against him. On November 21, 2017, the use ofthe tracker actually led to Mr.

Nguyen’s detention for these offences, resulting in the seizure of multiple cell phones from him, includingthe Phone. Both of these incidents touch on the very privacy interest concerns that I alluded to above. Moreover, the Court is entitled,indeed required, to look not just narrowly at the evidence proffered by the prosecution at trial, but rather at the broader picture of howthe accused’s Charter-protected interests had been impacted.

Just because an unauthorized strip-search revealed nothing, it does notmean the Court should ignore that a strip search was conducted when considering how an accused’s privacy rights had been breached.Returning to the case at bar, Mr. Nguyen was tracked unlawfully from September 27 to November 21, 2017. Under those circumstances,I cannot agree that the impact on Mr. Nguyen’s privacy interest was minimal. For those reasons, this line of inquiry militates very muchin favour of exclusion. [24] With respect to the third inquiry, these are very serious offences before the Court.

There was a significant amount of controlledsubstances found at Woodsdale. As such, society’s interest in adjudicating the matter on its merits is high. The evidence is also reliable.There is no suggestion that the electronic information gathered from the tracking device is anything but. I do note, however, that thetracking evidence is merely one small piece of the puzzle for the Crown. By their own

summary, there were only two occasions arisingfrom the tracker that places Mr. Nguyen with the Phone. The prosecution’s case does not rise or fall on the tracking evidence. Thisinquiry does not, to use the McGuffie paradigm, pull heavily back in favour of admission. [25] When everything is placed on the balance, I find that the serious degree in which Mr. Nguyen’s privacy rights were impactedfavour exclusion. And the combined weight of the first and third inquiries are not sufficient to tip the scale back.

In coming to thisconclusion, I am mindful that the reason the tracking warrant was set aside was because the requisite grounds were missing. To reiterate,I found that there were no reasonable and probable grounds to believe that the Phone was something ordinarily carried by Mr. Nguyen.This was not just a technical or minor deficiency. It goes to the very core of the constitutional basis of this investigative technique. Atpara. 37 of R. v. Sunner, 2017 BCSC 2444, Mr.

Justice Riley offers this observation: [37] In my view, a court must proceed with extreme caution in considering whether to admit evidence obtained as a result of a searchwarrant that is found to be invalid based on a lack of reasonable grounds. As Justice Sopinka noted in R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3: “…the Crown would happily concede s. 8 violations if they could routinely achieve admission unders. 24(2) with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds…”.

On thisreasoning, one can safely say that the routine admission of evidence obtained from the search of a dwelling house under animproperly-issued search warrant would trivialize s. 8 of the Charter and thus bring the administration of justice into disrepute. Indeed, Iwould think that admission of evidence obtained in such circumstances would be unusual. [26] For the foregoing reasons, all evidence flowing from the use of the tracking device on the Phone will be excluded from the trial. Academy Way [27] The police conducted a search of the Academy Way apartment on November 2, 2017.

They did so under the authority of a searchwarrant. For reasons expressed above, the Charter-infringing state conduct was not serious in this instance. The police thought they wereacting lawfully at the time, and it was only because of jurisprudence developed subsequently that this search resulted in a breach of Mr.Nguyen’s s. 8 rights. [28] Regarding the degree of its impact, however, this breach was very serious. Academy Way is a private residence. It is a unit in asecure building which required key or fob access to the building and to the parking garage.

There are video surveillance camerasthroughout the building. Although he used a pseudonym (that of Donald Nguyen), Mr. Nguyen was one of two registered tenants ofAcademy Way. On looking at the contents of the apartment, the police concluded that “someone was living there”. There weredocuments connecting Mr. Nguyen to the apartment. There was at least one occasion on which Mr. Nguyen was observed going to andleaving the apartment (on October 12, 2017). The expectation of privacy at Academy Way was, therefore, extremely high. Although theCrown is right in saying that the evidence, on balance, shows that Mr.

Nguyen did not live at Academy Way on a full time basis, I cannotconclude that his expectation of privacy therein was materially reduced. It has been said many times that private residences are wherecitizens enjoy the highest level of privacy. An intrusion into that right is always a serious matter. For that reason, this line of inquiryfavours strongly in favour of exclusion. [29] Regarding the third inquiry, the Crown concedes that the search of Academy Way did not provide any linchpin evidence asagainst Mr. Nguyen. It is, however, otherwise reliable evidence used to prosecute a very serious offence.

When I consider how heavilythe second inquiry militates in favour of exclusion, I conclude that the third inquiry does not operate to bring the needle back with respectto Academy Way. All evidence flowing from the search of Academy Way on November 2, 2017 will, therefore, be excluded from thecase against Mr. Nguyen. Woodsdale [30] Mr. Nguyen applies to exclude evidence derived from the search of the Woodsdale apartment on November 2, 2017. I concludehere that a s. 24(2) analysis is not required. This is not just because that, in Voir Dire #4, I upheld that particular search warrant. AsProwse J.A. said in R. v.

Lauriente, 2010 BCCA 72 at para. 47, “the fact that the validity of the warrant was ultimately upheld did notsever the connection between the breach and the impugned evidence”. The proper test, rather, is to consider whether there is a sufficientnexus (temporal, causal, or contextual), to trigger the application of s. 24(2). In Voir Dire #4 at para. 19, I held that this was a multi-faceted investigation with many avenues that led the police ultimately to Woodsdale.

Considering the entirety of the investigation, Iconclude that there was not a sufficient nexus between the search of Woodsdale and the breach arising from the use of the trackingdevice. Any purported connection is simply too remote for the purposes of the threshold analysis. In the words of s. 24(2), this was notevidence “obtained in a manner that infringed or denied any rights or freedoms”. Evidence from Woodsdale will be admitted at the trialagainst Mr. Nguyen.

6 cell phones seized [ 31 ] The use of the tracking device on the Phone allowed the police to locate Mr. Nguyen on November 21, 2017. Mr. Nguyen was in a vehicle driven by Mr. Leonard Ngo, a prohibited driver at the time. The police initiated a traffic stop and detained Mr. Nguyen for the drug trafficking investigation. Cpl. Fradette did not arrest Mr. Nguyen at the time but nevertheless went onto seize the cell phones from both Mr. Nguyen’s person and from the vehicle Mr. Nguyen was in.

The Crown conceded that the authority to search on an investigative detention did not authorize the officer to seize the phones from Mr. Nguyen’s sweater pocket or the vehicle. For that reason, the Crown conceded that Mr. Nguyen’s s. 8 rights were breached in this regard. [ 32 ] In this case, I find that the first line of inquiry favours exclusion. Cpl. Fradette is an experienced officer. If he did not know, then he should have known, the extent of his authority when detaining an individual, as opposed to when arresting an individual. Unlike the tracking warrant issue, this is not a novel area of the law.

The distinct powers that pertain to the two different procedures have been well- settled since R. v. Mann , 2004 SCC 52 . Even if the officer had been ignorant of the distinction, he cannot claim that he acted in good faith. Consequently, I find that the Charter -infringing state conduct was very serious in this case. At para. 44 of R. v.

Paterson, 2017 SCC 15 , the SCC said this: Even where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct. [ 33 ] It is true that in Voir Dire #5 , I found that Cpl. Fradette had in fact the subjective and objective criteria to effect an arrest. Nevertheless, as was said in R. v. Whitaker , 2008 BCCA 174 , the police are “to be judged on what they did, and not what they could have done” (see para. 65).

I point out also that this is not simply a matter of using the wrong word. Cpl. Fradette’s decision to detain, rather than arrest, was deliberate and that he specifically turned his mind to which he was going to do. I recall the relevant portions of his evidence to be as follows: • I immediately informed Mr. Nguyen he was being detained for a drug trafficking investigation. • I believe I could have arrested Mr. Nguyen. I wanted to ensure that the stop had been for a dual-purpose. We knew there was a prohibited driver driving it.

But at the same time, we knew that the drug-trafficking phone was there. • I wanted to ensure that he was aware of the investigation and that he was afforded his Charter rights. • At that point, I wasn’t thinking in terms of seizure of evidence. I wasn’t thinking in terms of anything else. • So that was why I made the decision to detain him. [ 34 ] Accordingly, the error is much more fundamental than using the wrong word to describe what he did or wanted to do. It was a deliberate choice in terms of which route the officer was going to take.

And the excerpt above suggests that the officer understood that search and seizure of evidence would not be permitted upon a detention. Presumably this is why he detained, rather than arrested, since “he wasn’t thinking in terms of seizure of evidence”. Nevertheless, he went on to do exactly that. Nor can it be said that the presence of the Phone caught him by surprise since the location of the Phone was the very thing that brought the officer to Mr. Nguyen.

In my view, this exacerbates greatly the seriousness of the Charter -infringing state conduct and this inquiry militates strongly in favour of exclusion. [ 35 ] Regarding the second factor, 4 cell phones were seized from Mr. Nguyen’s sweater pocket. Two were seized from the vehicle. Although not as intrusive as some bodily searches, there was a degree in which Mr. Nguyen’s bodily integrity had been interfered with. This also happened at the side of the highway in public in broad daylight. The impact on Mr. Nguyen’s constitutional right to be protected from unreasonable search or seizure was not insignificant.

Although pre- Grant , the Supreme Court of Canada said this in Mann , supra , at para. 56 which I find to be a useful reminder: While a frisk search is a minimally intrusive search, as noted by this Court in Cloutier , supra , at p. 185, the search of the appellant’s inner pocket must be weighed against the absence of any reasonable basis for justification. Individuals have a reasonable expectation of privacy in their pockets.

The search here went beyond what was required to mitigate concerns about officer safety and reflects a serious breach of the appellant’s protection against unreasonable search and seizure. [ 36 ] In addition to how and from where the items were seized, it is proper for the Court to consider what was seized. There is no question that cell phones contain tremendously personal information.

In Fearon , supra , at para. 51 , the Court said: [51] It is well settled that the search of cell phones , like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places”: R. v. Vu , 2013 SCC 60 , [ 2013] 3 S.C.R. 657 , at paras. 38 and 40-45 . It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest.

As outlined in Vu , computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search: paras. 41-44. [ 37 ] While Fearon was mostly about searching of the cell phone in the forensic sense, the above comments are no less true.

And at this stage of the analysis, I am deciding only on the admissibility of the cell phones themselves, as opposed to the data extracted therefrom. Nevertheless, the fact that they were cell phones, and not items that are much less personal, add to the impact of Mr. Nguyen’s privacy interests. This is so even if the police did not end up extracting their data.

When I consider where these items were seized from, and what these items were, I conclude that the second inquiry in Grant favours exclusion as well. [ 38 ] Regarding the third inquiry, the Crown advises that the Phone contains evidence essential to the Crown’s case. Without it, there is no reasonable prospect of conviction for these very serious charges. The evidence is clearly reliable. These factors favour admission. Otherwise, society’s interest in seeing this case be adjudicated on its merits would be prejudiced. This concern is admittedly mitigated to

some degree, as Mr. Muldoon points out, by the fact that the Crown’s case remains very much alive against Mr. Chau. But over all, this third line of inquiry favours admission. [ 39 ] It was said in McGuffie that the third inquiry will rarely tip the scale in favour of admission if the first two favour the contrary. And so it is with this case. I find that the seriousness of the state conduct along with the impact it had on Mr. Nguyen’s privacy interest mandate that this evidence be excluded, notwithstanding the fact that it may spell the end of the Crown’s case against Mr.

Nguyen. [ 40 ] The 6 cell phones seized from Mr. Nguyen will be excluded from the trial. Data Extraction from the 6 cell phones [ 41 ] Given my ruling on the admissibility of the cell phones themselves, a ruling on the admissibility of the data extraction is not necessary. Should I be wrong in my treatment of the cell phones, however, I would have found that the data extraction of the cell phones also to be inadmissible. [ 42 ] Following the physical seizure of the cell phones, the officer applied two days later for a warrant allowing them to be forensically analyzed.

By consent, that warrant was set aside in Voir Dire #6 , following the excision of the tracking information from its respective ITO. While the Crown maintains that there were nevertheless reasonable grounds upon which the warrant could have been issued, without any reference to the Phone, the ITO (and therefore the warrant) became non-starters. Quite rightly, it was conceded in the end that the warrant for the data extraction ought to be set aside. [ 43 ] As was said in Fearon , the privacy interest in the content of one’s cell phone is immense.

Since 2014 (when Fearon was decided), our lives have become even more and more inextricably entwined with the digital, cyber, and virtual world. There is almost no aspect to today’s existence that does not leave a footprint on our cell phone. These machines carry our deepest and most personal secrets. I suspect some, if not most, Canadians would sooner permit a stranger to look through their house, than the contents of their cell phone.

If the state forensically examined someone’s personal electronic device without the proper judicial authorization, I cannot imagine a greater impact on one’s constitutionally protected right to privacy. For that reason, there is no question that the administration of justice would be brought into disrepute if evidence thus obtained were to be admitted. [ 44 ] Should it be necessary to make such a ruling, the data extraction from the 6 cell phones would also be excluded from the trial.

Summary [ 45 ] In

summary, I order as follows: 1. All evidence flowing from the use of a tracking device on the Phone between September 27 and November 21, 2017 is excluded; 2. All evidence seized from the Academy Way apartment on November 2, 2017 is excluded; 3. All evidence seized from the Woodsdale apartment on November 2, 2017 is admitted; 4. All cell phones seized from Mr. Nguyen on November 21, 2017 are excluded; 5. All data extracted from the above cell phones are excluded. ______________________ The Honourable A. Tam Provincial Court Judge