Date: 20101029

Docket: X073015

Registry: New Westminster

Regina

v.

Duc Binh Truong

Before: The Honourable Mr. Justice Stewart

Oral Reasons for Judgment on Voir Dire

[1] THE COURT: (Oral)  The accused stands charged as follows.

Duc Binh Truong stands charged

Count 1:

That on or about the 28th day of August, 2008, at or near the City of Surrey in the Province of British Columbia, did unlawfully produce a controlled substance, to wit:  Cannabis (marihuana), contrary to s. 7(1) of the Controlled Drugs and Substances Act.

Count 2:

That on or about the 28th day of August, 2008, at or near the City of Surrey in the Province of British Columbia, did unlawfully possess a controlled substance, to wit:  Cannabis (marihuana), in an amount greater than 3 kilograms, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

Count 3:

That between the 1st day of December, 2007 and the 28th day of August, 2008, inclusive, at or near the City of Surrey, in the Province of British Columbia, did fraudulently abstract, consume, use or cause to be diverted electricity, the property of the British Columbia Hydro and Power Authority of a value exceeding five thousand ($5,000) dollars and did thereby commit theft, contrary to s. 326(1)(a) of the Criminal Code of Canada.

[2] We are at the conclusion of a voir dire.  The submissions of counsel for the applicant and the Crown ended this morning.  I do not need to hear from counsel for the applicant in reply.

[3] As things have developed, the only issues left to me to be decided on the voir dire related to Charter s. 24(2) and an application by the accused to suppress evidence.

[4] My task in preparing reasons for judgment at the end of this voir dire has been settled by the Supreme Court of Canada in a series of cases that encompasses R. v. Sheppard, [2002] 1 S.C.R. 869; R. v. Dinardo, 2008 SCC 24; R. v. R.E.M., 2008 SCC 51; and R. v. H.S.B., 2008 SCC 52.  In brief, I am not to produce a form of transcript of the evidence.  That is what the taping system is for:  R. v. Yang, 2004 BCCA 235; and R. v. McDonald, 2007 BCCA 224, paragraph 7.  Nor am I to articulate the “machinations of my mind”:  R. v. Jordan, 2004 BCCA 70.  Instead I must give reasons for judgment responsive to the live issue or issues and, having regard to the particular circumstances of the case, reasonably intelligible to the parties and productive of a basis for a meaningful appellate review of the correctness of my decision by an appellate court armed with the combined effect of what I say in these reasons for judgment and the record of the trial, or in this case the voir dire.

[5] Against the background of the record, I find as follows:

(a)      The case is one of a warrantless entry by the police of a house situated at 18095 – 64th Avenue in Surrey on August 28, 2008, followed by an entry on the basis of a search warrant grounded in turn on what had been seen by the police in the house during the warrantless search.

(b)      What the police saw and eventually seized and is proffered in evidence by the Crown, and a subject of this 24(2) application to suppress evidence, is real evidence establishing that what is usually referred to as a “marihuana grow” was in full swing in the crawl space of that house.

(c)      The search warrant is no better than the warrantless search, as the warrantless search was central to the information to obtain that resulted in the granting of the search warrant.

(d)      The onus is on the Crown to establish that the warrantless entry was based on law.

(e)      In that connection during submissions the Crown referred to two bases:  (1) express consent to enter, and (2) exigent circumstances and the case of R. v. Godoy, [1999] 1 S.C.R. 311.

(f)       I made a ruling during Crown counsel’s submission that the law with respect to exigent circumstances has no application to the case at bar.

(g)      We moved on to whether the Crown had established on a balance of probabilities that the accused consented to the police entering the house.

(h)      The courts must never let the process deteriorate inch by inch to the point where the court becomes nothing more than a rubber stamp for conclusory opinions provided by police officers.

(i)       Recognizing that fundamental proposition the law demands that where the onus is on the Crown, the Crown must establish in evidence what occurred in sufficient detail that the judge can pass separate judgment on the import of what, in this case, passed between the accused and his wife and the police, basically Constable Stewart, as the accused and his wife sat in their van parked at the side of the road, and back outside the house at 18095 – 64th Avenue.

(j)       In the present case Crown counsel, properly in my opinion, conceded that the record in the case is such that a finding by me of express consent by the accused to the entering of the house could not be made.

(k)      I underline that her conceding the point was not just reasonable, but, in my opinion, absolutely the correct thing to do.  I add only that the absence of a decent record makes it equally impossible for me to decide objectively whether Constable Stewart’s belief that the accused had consented was reasonable.  Such a finding would be of interest when we reach the latter portion of s. 24(2) of the Charter.

(l)       That takes the case straight to the last 30 words of Charter s. 24(2) and the decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32.

(m)     I do not intend to read extracts from R. v. Grant, supra, into the record.  I will take it as read.  I am bound by what the Supreme Court of Canada has said.  I must apply it to what is thrown up by this case.

(n)      Before going straight to R. v. Grant, I note that this is a case in which an additional Charter breach – beyond the breach of s. 8 – was made out.  That is not to be ignored in applying R. v. Grant to what is thrown up by this case, and I have not forgotten that.  Against the background of the record, it is sufficient that I say here that I ruled during submissions of counsel that a statement made by the accused to Constable Keo was obtained in a manner that infringed the rights of the accused under Charter s. 10(b).  In short, the statement in question is one with respect to which the Crown conceded it could not prove voluntariness and, in addition, I ruled that it had been elicited from the accused by Constable Keo’s priming the pump at a time when – as the accused had said he wished to speak to a lawyer but had not yet had a reasonable opportunity to do so – the police were by law to refrain from eliciting evidence from the accused, who was then under arrest:  R. v. Manninen, [1987] 1 S.C.R. 1233.  Constable Keo’s doing as she did was either deliberate or reckless conduct.  No other conclusion makes sense on the basis of her evidence.

(o)      I return to R. v. Grant and the “three avenues of inquiry” dealt with by the Supreme Court of Canada, commencing at paragraph 67.  As noted, I take the case of R. v. Grant as read.

(p)      I look at the seriousness of the Charter infringing state conduct.

(q)      Here the entry occurred in the context of the police responding to a report of what proved to be an attempted breaking and entering at 10895 – 64th Avenue.  The police, Constable Stewart, located the occupants of that house – who had fled the house – in a van parked a few minutes away.  The accused and his wife were in the van.  Other police attended at the scene where the van had been located.  Constable Stewart is the officer who matters.  Eventually the accused and his wife drove back to the house.  So did the police.  The police and the accused and his wife were outside the house.  Again it is Constable Stewart who matters.  Constable Stewart’s communicating with the accused and his wife was very difficult because of their problem with the English language.  Constable Stewart concluded from what had passed between her and these two people since she first encountered them that they consented to the police entering the house to make sure no danger awaited them within the house.  The accused opened a garage door and the police entered and searched the house.  In the course of the search they found the marihuana grow operation.  The accused says he did what he did only because he was ordered to, not because he consented.

(r)       The sin in the case at bar is the failure by the police after they found the marihuana grow operation and arrested the accused to sit down and do their best – here Constable Stewart is of interest – to put themselves in a position later to tell a judge what went on, the back and forth, the problems, as Constable Stewart dealt with the accused and his wife.  As noted, the Crown properly concedes that it cannot provide a decent body of evidence on which I can pass independent judgment on whether the upshot of what passed between the officers and these two people amounted to a consent to enter the house.  Any alleged consent entry resulting in the finding of drugs and the arresting of an accused screams Charter attack.  That is not a secret.

(s)      The “sin”, as I have referred to it, is a serious thing.  We are 28 years into the life of the Charter.  It is reasonable for the courts to expect any officer in the position of the police in this case – after the discovering of the marihuana grow operation and the arresting of the accused – to act on the assumption that someday in the future a court may very well have to pass separate judgment on the effect of what was said and done and gesticulated that night.  I emphasize that that is not a counsel of perfection.  It is, in my opinion, entirely reasonable.

(t)       In the circumstances of this case, for the police this far into the life of the Charter not to sit down at the earliest opportunity to do their best to record the detail of what had passed between the police and the accused and his wife was inexcusable.

(u)      R. v. Harrison, 2009 SCC 34, makes clear that in assessing the seriousness of the police conduct, I may look at what the police did, or I say did not do, after the events in issue.

(v)      I find the seriousness of the police conduct to be significant.  The rule of law demands that the police recognize the fact that they operate within a world overlaid with the provisions of the Charter and that they must, wherever possible, take reasonable steps so that on some date in the future a court may, if necessary, be in a position to apply the law to the facts of the case, and not simply to their conclusory opinion.  In this case the police did nothing.  Twenty-eight years after the advent of the Charter, that is far from an insignificant transgression.

(w)     I turn to the impact on the Charter-protected interests of the accused.

(x)      The situation thrown up by the case at bar is different from the usual.  The accused is the owner of the house, but he did not reside there.  Neither did his wife.  He told me that he drops by the house once in a while.  Why?  Because, as he told me from the witness box on the voir dire, he and another man were growing marihuana in that house.

(y)      I find that – to employ some of the analysis revealed by R. v. Edwards, [1996] 1 S.C.R. 128 – the totality of the circumstances reveals that the accused’s security interest in the house was that of one who had control of the property and exercised control from time to time and had been in the house when the events on the night in question commenced.  He had a reasonable expectation of privacy when in the house, but his security interest was nothing like that of one who resided in the house.  In that context, there was certainly an intrusion on his Charter right, secured by s. 8, but what was done, the way it was done – simply making sure no one was in the house – and his limited security interest in the house, leads me to the conclusion that the impact on the protected interest was, at most, moderate.

(z)      I turn to society’s interest in an adjudication on the merits.  The charges are serious.  R. v. Grant says that that cuts both ways.  The Crown tells me that without evidence of the proceeds of the search of the house, it has no case on any of the three counts on the indictment.  R. v. Grant makes clear that the fact I am dealing with “real evidence” is determinative of nothing.  In law it is just another factor to be considered.  Society’s interest in an adjudication on the merits is high.  But society’s interest in having a justice system that protects its ability to do its job independently of the police is, in my opinion, greater.

(aa)    I now focus on paragraphs 85 and 86 of R. v. Grant.  I have weighed the “various indications”.  I have considered the three lines of inquiry dealt with above.  In my opinion, on balance, the admission of the evidence obtained by the breach of Charter s. 8, would bring the administration of justice into disrepute.  The fact that the result of the suppressing of the evidence will be that a man who was not only caught cold but confessed to committing the offence while in the witness box will be acquitted is simply the short-term price that must be paid for the long-term maintenance of the rule of law.

(bb)    The evidence of the proceeds of the search is excluded.

“Stewart J.”