COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., LASKIN J.A. and BLAIR R.S.J. (ad hoc)

DATE: 20001222

DOCKET: C31982

BETWEEN:

HER MAJESTY THE QUEEN ) James W. Leising, for the respondent

(Respondent) )

–and– )

CHI FAI CHAU ) Frank Addario, for the appellant

(Appellant) )

) Heard: October 17 and 18, 2000

On appeal from the conviction and sentence imposed by Justice Michael R. Dambrot, sitting without a jury, dated December 3, 1997.

LASKIN J.A.:

Background facts

[1] After a trial before Dambrot J. the appellant Chi Fai Chau (“Chau”) was found guilty of importing heroin into Canada. He was sentenced to 13 years imprisonment. He appeals his conviction.

[2] On his appeal, Chau makes one argument: the trial judge erred in admitting under s.24(2) of the Charter evidence seized from Chau’s hotel room. Chau contends that the trial judge’s s.24(2) ruling reveals several errors of law. He argues that the trial judge relied on the seized evidence to conclude that Chau had knowledge of the heroin. Chau therefore asks for a new trial. For the reasons that follow, I have concluded that the trial judge did not err in law in admitting the evidence seized from the hotel room. Accordingly, I would dismiss the appeal.

[3] The Crown alleged that Chau and another person, Liu Sun Kong, conspired to import the heroin by concealing it inside automobile transmissions shipped from Thailand.

[4] Liu had entered Canada at Vancouver on February 2, 1997. He was inspected by a Canada Customs officer, who discovered a bill of lading for the delivery of the automobile transmissions to Chau. The address for delivery shown on the bill of lading was an apartment in Scarborough, Ontario.

[5] Canada Customs officers suspected that Liu was a member of the Triad, a criminal organization in the Far East. They asked the Toronto Police to investigate. The police learned that the automobile transmissions had been released to Chau, and that the delivery address had been changed to a warehouse in Scarborough. In arranging for the delivery, Chau had given as his own address a hotel room at the Scarborough Inn.

[6] On February 14, 1997, Detective Yates of the Toronto Police Department was told by the Royal Hong Kong Police that Liu was believed to be a high-ranking Triad member, suspected of supplying heroin and wanted for murder in Hong Kong. Yates suspected a connection between Liu and Chau. He decided to arrest them both under the Immigration Act on the ground that they represented a danger to the public.

[7] On February 15, 1997, members of the Toronto Police entered Chau’s hotel room at the Scarborough Inn without a warrant. They arrested Chau and Liu. They then gathered up Chau’s and Liu’s belongings, including papers and documents strewn about the hotel room. Among the documents seized was the bill of lading. After the arrest, the police obtained a warrant to search the warehouse. They found the truck transmissions, disassembled them and discovered traces of heroin.

The trial judge’s ruling

[8] The trial judge held a voir dire to determine the admissibility of the evidence seized from the hotel room. He concluded that the warrantless arrest of Chau violated his rights under s.9 of the Charter. Although the trial judge accepted that Detective Yates personally believed he had reasonable grounds to arrest Chau under the Immigration Act, he held that objectively those grounds fell “far short of amounting even to a reasonable suspicion”. Because the arrest of Chau was unlawful, the trial judge held that the search in the hotel room violated Chau’s rights under s.8 of the Charter and the subsequent statement Chau gave to the police violated his rights under s.10(b).

[9] Despite these findings, the trial judge admitted the seized evidence under s.24(2). He held that though the Charter breach was serious, its seriousness was “blunted to some degree”; that the admission of the evidence would not affect trial fairness; and indeed, that “the exclusion of this evidence would have a greater negative effect on the reputation of the administration of justice than would its admission”.

[10] The main issue at trial was whether Chau knew the transmissions contained heroin. The Crown’s case consisted mainly of an agreed statement of facts. The defence called no evidence. In concluding that Chau had the requisite knowledge, the trial judge relied on the following: the scope of the importing operation; the value of the heroin ($350,000); the improbability of leaving Chau in possession of such valuable contraband if he was not a party to the offence; Chau’s renting of a basement apartment and warehouse while living at a hotel with Liu; Chau’s application for an import license; his purchase of tools; and his receipt of an electronic scale, delivered to him personally from Hong Kong.

Discussion

[11] The trial judge’s ruling under s.24(2) of the Charter is entitled to deference on appeal. However, appellate review may be warranted when the ruling is based on an unreasonable finding of fact or where it reflects an error of law. Here, Chau submits that the trial judge committed four errors of law. These four alleged errors relate to the second and third Collins factors: the seriousness of the violations and the effects of exclusion. R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.). On the first Collins factor, Chau does not attack the trial judge’s finding that the admission of the evidence would not affect the fairness of the trial. I will briefly review each of Chau’s four submissions.

First submission: The trial judge erred in concluding that the search of the hotel room would have been lawful if the arrest had been lawful

[12] The trial judge held that the search of Chau’s hotel room without an arrest warrant and without reasonable grounds for a warrantless arrest amounted to a serious constitutional violation. Nonetheless, he found that the seriousness of the violation was “blunted to some degree” for three reasons:

If the absence of a warrant had been the only basis to conclude that s.8 had been violated, the breach would have been serious, because of the intrusion into a dwelling, albeit a hotel room, but would have been understandable, and made in good faith, given that Feeney had not yet been decided. The breach here is more serious, however, because of the absence of objective reasonable grounds to suspect that Chau and Liu were persons referred to in paragraphs 27(2)(b), (e), (f), (g) or (h) of the Act. On the other hand, the seriousness is blunted to some degree in view of my finding that Detective Yates honestly believed that he had such grounds, my finding that his grounds for believing that both men posed a danger to the public were reasonable both subjectively and objectively, and my finding that, had the arrest been lawful, the seizure of the papers in the room would have been reasonable. In all these circumstances, while I cannot consider this a case of bad faith, neither can I equate Yates’ mistaken view of the sufficiency of his grounds as good faith. (Emphasis added.)

[13] In his first submission, Chau attacks the third “blunting” consideration relied on by the trial judge: “had the arrest been lawful the seizure of the papers in the room would have been reasonable”. The trial judge concluded that if the arrest had been lawful the seizure would have been a valid search incident to arrest:

But in the end, it does not matter, because I find that the seizure would also have been a valid search incident to arrest if the arrest itself had been lawful.

In my view the seizure of papers strewn around the hotel room complies with the principles set out by the Supreme Court in Cloutier v. Langlois (1990), 1990 CanLII 122 (SCC), 53 C.C.C. (3d) 257, at p. 278. In particular, it was for a proper object – a search for material relevant to the immigration matter under investigation. The fact that the police knew that the material might also shed light on the heroin investigation does not lead me to conclude that the search for the stated purpose was a pretext.

[14] Chau, however, points to Detective Yates’ own evidence in which he expressly disavowed that he was searching the hotel room either to protect evidence from being destroyed or to discover evidence for use in Immigration Act proceedings. Instead, Yates testified that he searched the room to protect Chau’s and Liu’s property. He denied that he was looking for evidence.

[15] But the trial judge took a different view. He found that the police were also looking for evidence to support the alleged violations of the Immigration Act:

The police then gathered up and removed their prisoners’ belongings, including papers and documents which were strewn around the room. Documents fitting into some 35 categories were seized. Detective Yates testified that this was done because the police had a legal obligation to look after a prisoner’s property, and for not other purpose initially. It is apparent, however, that the police also intended to review this material for potential evidence in support of the alleged violations of the Immigration Act, and that to some extent that happened in the hotel room. Yates himself, for example, examined Chau’s passport in the room to confirm his identity. A further review of the documents in connection with the arrest under the Immigration Act took place later when Earl Gray, an officer attached to the Immigration Investigative Service arrived at 41 Division. He reviewed these documents for the purpose of preparing himself to interview Liu and Chau in order to ascertain their status in Canada and to determine if they should be further detained for an inquiry under the Immigration Act.

And:

I find as a fact that the seizure of papers and documents in the hotel room shared by Liu and Chau was done both because the police believed that they had a legal obligation to look after a prisoner’s property, and for the purpose of ascertaining whether they afforded evidence of the alleged violations of the Immigration Act.

[16] In the light of what the police did – and not just what Detective Yates said – I am not persuaded that the trial judge’s finding is unreasonable. I would therefore not give effect to this submission.

Second submission: The trial judge erred in concluding that the seriousness of the violation was “blunted to some degree” because Detective Yates honestly believed he had grounds for the arrest

[17] This submission attacks the first “blunting” consideration relied on by the trial judge: Yates honestly believed that he had grounds to arrest Chau.

[18] A police officer’s subjective belief is generally relevant in assessing whether the officer breached the Charter in good or bad faith. An honest though mistaken belief may not show good faith but will generally refute a finding of bad faith. This is the view the trial judge took.

[19] The trial judge accepted Detective Yates’ evidence that he believed he had reasonable grounds to arrest Chau for violating the Immigration Act. The trial judge also recognized that the police investigation took place before the Supreme Court of Canada’s decision in R. v. Feeney (1997), 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129, holding that a warrantless arrest in a private dwelling is unlawful save in exceptional circumstances. At the time of this investigation the law therefore did not clearly tell the police what they could and could not do. Still, the trial judge found the breach of the Charter “more serious” because the police lacked objective reasonable grounds to suspect Chau and Liu had violated the Immigration Act. He concluded that the various considerations cancelled each other out – neither good faith nor bad faith was shown. He held: “In all the circumstances, while I cannot consider this a case of bad faith, neither can I equate Yates’ mistaken view of the sufficiency of his grounds as good faith”. In other words, the breach was still serious but “blunted to some degree”.

[20] In weighing the relevant considerations and concluding that the breach, though serious, was “blunted to some degree” by Yates’ honest belief, the trial judge did not commit any error of law. Instead, he conducted the kind of analysis called for by s.24(2). Accordingly, I would not give effect to this submission.

Third submission: The trial judge erred in holding that the existence of lawful means to discover the evidence tended to favour its admission rather than its exclusion

[21] The trial judge listed “discoverability” as a consideration favouring admission of the evidence seized from the hotel room. He concluded that the police could have obtained a warrant to search the warehouse, developed grounds to arrest Chau and Liu and then obtained a warrant to search the hotel room:

Once again I note that this is a serious offence. I am uncertain whether any of the evidence seized in this instance is essential to the Crown’s case, but certainly the finding of the bill of lading is significant. I also note that this is a case where the evidence was discoverable in any event. I have already determined that the warrant for the search of the warehouse could have been obtained without the fruits of the statements or the search incident of arrest. Had that happened, the police would have developed the grounds to arrest Liu and Chau for importing heroin, and to obtain a warrant to search their hotel room. Since they already knew about the bill of lading, this would obviously have been one of the items that the warrant could have permitted them to search for. The discoverability of the evidence in the circumstances here favours admissibility.

[22] Chau submits that that the discoverability of the evidence favoured its exclusion, not its admission. He relies on the proposition that where the police deliberately choose unconstitutional methods to obtain evidence and ignore constitutional methods, the Charter violation is more, not less, serious and the court should favour the exclusion, not the admission, of the evidence. The trial judge accepted this proposition but found that it did not apply on the facts:

… This is not a case like R. v. Collins where other investigative techniques which would have permitted the seizure of the evidence were available at the time of the seizure, and where the police knew or ought to have known that they could have proceeded otherwise and obtained the evidence by those lawful means. In such circumstances, disregard for the Charter would support exclusion.

[23] This finding is reasonably supported by the evidence. No officer testified that the police had reasonable and probable grounds to search the warehouse on February 15, 1997, the day Chau’s hotel room was searched. The trial judge accepted the officer’s testimony. Thus, Chau cannot point to any evidence showing that the police chose unconstitutional methods of investigation over constitutional ones. I would therefore not give effect to this submission.

Fourth submission: The trial judge erred in failing to consider the pattern of Charter violations in his assessment of the seriousness of the s.8 infringement

[24] The trial judge found that three constitutional rights of Chau had been violated. His s.9 right to be free of arbitrary arrest or detention was violated by the warrantless arrest in the hotel room; his s.8 right to be secure against unreasonable search or seizure was violated by the warrantless search after the arrest; and his s.10(b) right to counsel was violated by the police’s failure to advise him, while in custody, of the extent of his jeopardy before he gave a statement. Chau characterized the violations of these three rights as a “pattern” of Charter violations. He submits that the trial judge failed to consider this pattern of violations when assessing the seriousness of the s.8 breach.

[25] There are two answers to Chau’s submission. First, only one violation – not a pattern of violations – was relevant to the admissibility of the evidence seized from the hotel room: the s.9 violation. But for that violation, the hotel room search would have been reasonable. Second, the trial judge did consider the cumulative effect of the violations when he considered the evidence seized from the warehouse. He categorized “all of the breaches which I have found to exist to be serious”. However, they did not warrant excluding the evidence largely because of “the absence of a causal connection between the breaches and the finding of this evidence”. As the Crown points out, if these Charter violations did not favour excluding the evidence obtained during the last search, the warehouse search, likely they would not favour excluding the evidence obtained during the first search, the hotel room search. Thus, I would not give effect to Chau’s final submission.

Conclusion

[26] I have concluded that the trial judge did not err in law in exercising his discretion to admit the evidence seized from Chau’s hotel room under s.24(2) of the Charter. It is therefore not necessary to consider the other arguments raised by the Crown. I would dismiss the appeal.

Released: DEC 22 2000 Signed: “John Laskin J.A.”

RRM “I agree R.R. McMurtry C.J.O.”

“I agree R.A. Blair R.S.J. (ad hoc)”