Court of Appeal for Ontario

Citation: R. v. Liew, 2015 ONCA 734

Date: 20151102

Docket: C55450

Simmons, Tulloch and Huscroft JJ.A.

Between

Her Majesty the Queen

Appellant

and

Soon Fat Liew and Wen Tung Yu

Respondent

Counsel:

Kevin Wilson, for the appellant

Alan D. Gold and Melanie J. Webb, for the respondent Wen Tung Yu

Heard: April 7, 2015

On appeal from the acquittals entered by Justice R. Cary Boswell of the Superior Court of Justice, sitting without a jury, on April 19, 2012.

Tulloch J.A.:

A. Overview

[1] The respondent, Wen Tung Yu, was acquitted of importing cocaine and possession of cocaine for the purpose of trafficking following a blended voir dire and trial. His co-accused, Soon Fat Liew, was acquitted of possession of cocaine for the purpose of trafficking. The Crown abandoned the appeal against Liew, but maintained the appeal against the respondent.

[2] The respondent and Liew brought pre-trial motions that attacked the admissibility of much of the Crown’s evidence. The Crown had sought to lead evidence discovered during a search of the respondent’s home. The respondent argued that the warrant should not have been issued for two reasons. First, the affidavit sworn to obtain it contained evidence of calls between Liew and the respondent gathered during an unconstitutional search of Liew’s cell phone upon his arrest. Second, the affiant failed to make full and frank disclosure about Wendy Yu’s connection to the residence. Wendy Yu is the respondent’s aunt. The Crown had also sought to use statements made by the respondent and Liew to the RCMP to challenge the credibility of both accused should they testify at trial. The respondent and Liew alleged that the RCMP breached their right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

[3] The trial judge found that the investigating RCMP officers committed numerous breaches of the respondent and Liew’s ss. 8 and 10(b) Charter rights in his ruling on the pre-trial motions, dated March 27, 2012, with reasons reported at 2012 ONSC 1826. He then excluded the videotaped statements, the evidence derived from the warrantless search of Liew’s cell phone, and the evidence flowing from the search of the respondent’s residence in a brief endorsement on April 17, 2012, with written reasons following on May 25, 2012 and reported at 2012 ONSC 2990, 289 C.C.C. (3d) 225. Without this evidence, the Crown invited acquittals on all charges.

[4] The Crown now appeals from the respondent’s acquittal, and makes the following related arguments:

1. In light of the Supreme Court’s decision in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 631, the trial judge erred in holding the search of Liew’s cell phone incident to arrest was unconstitutional;

2. As the evidence from the search of Liew’s cell phone was constitutionally obtained, the trial judge erred in excising it from the information to obtain (ITO) the warrant to search the respondent’s home;

3. Once the evidence from the cell phone search is included in the ITO, it supports the issuance of the warrant to search the respondent’s home;

4. The evidence obtained from the search of the respondent’s home should be admitted; and

5. The trial judge erred in some of his findings of s. 10(b) violations and in excluding the respondent and Liew’s statements.

[5] As a preliminary matter, I will briefly address the search of Liew’s cell phone incident to his arrest. The trial judge determined that the arresting officer, Cst. Gallop, was entitled to seize Liew’s cell phone incident to arrest because he had an objectively reasonable basis for believing it would afford evidence of the offence, such as evidence of other suspects. However, he was not entitled to search the cell phone incident to arrest absent exigent circumstances or a warrant. He had neither. The trial judge held that even if a cursory search were permissible, the search performed by Cst. Gallop exceeded that limit.

[6] The trial judge’s decision on the cell phone evidence was made before the Supreme Court provided guidance on this issue in Fearon. In Fearon, at paras. 69-71, the majority of the Supreme Court rejected the approach taken by Boswell J. in the present case and concluded that a search of a cell phone may be conducted incident to arrest even if there are no exigent circumstances, provided certain criteria are met.

[7] The trial judge erred in his approach to the cell phone evidence. However, for purposes of this appeal it is not necessary to determine whether the search complied with s. 8 under the principles set out by Justice Cromwell, writing for the majority, at para. 83 of Fearon. This is because I have concluded that even if this evidence were included in the ITO, the ITO could not support issuance of a warrant to search the respondent’s residence. The search of the respondent’s residence was therefore warrantless, and the evidence obtained from that search must be excluded.

[8] This conclusion is dispositive of the appeal, as the Crown fairly conceded in oral argument that without the evidence obtained from the search of the house, the Crown has no case against the respondent. It is therefore not necessary to address whether the trial judge erred in his treatment of the statements.

B. Facts

[9] In January 2010, Canada Border Service Agency officers found over 30 kilograms of cocaine hidden in a shipment of wood. The wood was supposed to be delivered to the Sunny Trading Company in Markham, Ontario. RCMP officers removed the cocaine from the wood and replaced it with a benign substance. They tracked the shipment to its destination, a commercial complex on Yorktech Drive with a number of different units. The shipment was to be delivered to Unit 4, though the complex does not have a Unit 4.

[10] On February 4, 2010, RCMP officers waited at the Yorktech complex and watched as the shipment arrived shortly after 1:15 p.m. Two men, Liew and Jim La, exited a vehicle parked nearby. As La and Liew unloaded the wood from the truck, RCMP officers intervened and arrested them. Upon Liew’s arrest, Cst. Gallop searched his cell phone. The call history revealed that at 1:25 p.m., someone named “Dono” had called Liew’s cell phone from the number 416-738-8172. Liew’s cell phone also showed an outgoing call to “Dono” at 2:02 p.m. The respondent is also known as Donald Yu and is connected to the above phone number.

[11] The RCMP continued their investigation into the persons suspected of being involved in the shipment. A search warrant for 18 Eden Avenue was sought and obtained on the basis of an ITO sworn by Cst. Cobey on February 26, 2010. The ITO was justified on the grounds that Wendy Yu and the respondent lived at that address.

[12] The ITO set out compelling evidence that connected Wendy Yu to the cocaine shipment. She was named as the contact person for the shipment and her social insurance number was given to the shipping company. She was also the named contact on a wood shipment intercepted by the United States Border Patrol in 2009 that contained 142 kilograms of cocaine.

[13] In order to link Wendy Yu to 18 Eden Avenue, the affiant explained that Wendy Yu’s passport application referred to a driver’s licence to support her identity. That driver’s licence was registered to her alias and provided 18 Eden Avenue as her address. Further, an RCMP officer had positively identified Wendy Yu leaving 18 Eden Avenue on February 24, 2010. At approximately 12:09 p.m., an officer saw an unknown female depart from the residence driving a silver Mercedes. A second officer, Cst. Verma, later identified this woman as Wendy Yu.

[14] The affidavit sworn in support of the ITO did not mention the serious difficulties in connecting Wendy Yu to 18 Eden Avenue. The passport application was made in 2006 and also contained a different address for her in Ottawa, not Markham. Her SIN number was affiliated with yet another address in Toronto. The phone number associated with her information on the shipping documents was registered to a fourth address. In February 2010, officers searched all the usual sources to find Wendy Yu’s current address but were unable to find it. None of this was mentioned in the ITO.

[15] The frailties in the late February identification were also omitted. Cst. Verma tailed the Mercedes, pulled up beside it, and identified the driver as Wendy Yu. He had seen one photograph of Wendy Yu before this identification. The officer took no notes on the details of the identification or the physical description of the driver. The circumstances of the identification were not set out in the ITO.

[16] The respondent’s connection with 18 Eden Avenue was clear: he owned and resided at that property. However, the evidence connecting him to the shipment was limited. Surveillance established that the respondent’s minivan was parked at the Yorktech complex on the day of the delivery, beginning at 11:40 a.m. The affiant acknowledged in the ITO that the respondent operates a legitimate business out of two units in the complex. The respondent was also identified as “Dono” and had exchanged phone calls with Liew after Liew and La began to unload the shipment on February 4, 2010. To further establish the respondent’s involvement in the offence, the ITO claimed that the respondent lived at the same address as Wendy Yu, whose SIN number was associated with both cocaine shipments.

[17] On the basis of the above information, the police claimed to have established reasonable grounds to believe that an offence had been committed and that evidence of that offence would be found at 18 Eden Avenue. A warrant was issued. The RCMP executed the warrant on March 1, 2010, and arrested the respondent at the scene.

C. Decisions Below

[18] The trial judge concluded that evidence of the calls between Liew and the respondent was obtained in violation of Liew’s s. 8 rights. That evidence was excluded under s. 24(2) and excised from the ITO to search 18 Eden Avenue.

[19] He held that the evidence in the ITO, as revised on review, was insufficient to establish reasonable grounds to believe that evidence of an offence would be found at 18 Eden Avenue.

[20] The trial judge reviewed the content of the ITO in light of the evidence presented during the voir dire, including the cross-examination of the affiant, Cst. Cobey. Certain aspects of the ITO were challenged as being erroneous, misleading, or insufficient in terms of the obligation on the police to make full and frank disclosure. In addition to the challenge to the cell phone evidence, the respondent attacked the evidence about Wendy Yu’s address. First, he argued that the police had evidence connecting his aunt to several different addresses, but only referred to the 18 Eden Avenue address in the ITO. Second, the affiant stated that Cst. Verma had identified a female driver that left the residence as Wendy Yu. However, this driver was likely the respondent’s wife and the issuing justice would have been unable to assess the frailties of the identification because the circumstances in which it was made were not explained in the ITO.

[21] The trial judge found that Cst. Cobey failed to make full and frank disclosure in the ITO of the following material facts: i) An RCMP officer searched all the usual sources the police would normally check for a person’s address and could not locate an address for Wendy Yu; ii) Her passport application in February 2006 indicated an address in Ottawa; iii) A search of her SIN disclosed a different address in Toronto; iv) Constable Verma had never met Wendy Yu before he identified her and his identification was based on a comparison of a woman he saw driving an SUV to one photograph; and v) Constable Verma only glimpsed a female driver in traffic and could not otherwise describe any of the surrounding conditions at the time he made his identification. He took no notes of those circumstances.

[22] Therefore, while there was reliable evidence that Wendy Yu was involved in the offence, there was insufficient reliable evidence on which to conclude she resided at 18 Eden Avenue when the warrant was sought. The police failed to make full and frank disclosure about Wendy Yu’s connection to 18 Eden Avenue. They failed to disclose the difficulty they had in determining Wendy Yu’s address and the frailties in the officer’s identification. The trial judge determined that, in all likelihood, the woman identified by the officer as Wendy Yu was not Wendy Yu.

[23] On the other hand, while there was reliable evidence that the respondent lived at 18 Eden Avenue, absent the evidence of the calls with Liew, there was insufficient evidence connecting him to the offence. After holding that the warrant could not stand and the search of the respondent’s home was therefore warrantless, the trial judge excluded the evidence obtained from the search of the respondent’s home.

D. Analysis

[24] In my view, while the trial judge erred in his approach to whether the search of the cell phone incident to arrest violated s. 8, this error did not have a material bearing on the acquittal. Whether or not the evidence of the phone calls between the respondent and Liew was included, the ITO, as altered on review with respect to other issues, could not have supported the warrant to search the respondent’s home.

(1) The Burden on the Crown on an Appeal from an Acquittal

[25] Section 676(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides that the Attorney General may appeal against a judgment or verdict of acquittal on any ground of appeal that involves a question of law alone.

[26] To obtain a new trial, the Crown must satisfy the court that the verdict would not necessarily have been the same had the error not been made: Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277, at p. 292. The Supreme Court elaborated at para. 14 in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609:

[A]n appeal by the Crown cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown … to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal.

The burden on the Crown is a heavy one, as acquittals are not lightly overturned: R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, at para. 2.

(2) The Validity of the Warrant to Search the Respondent’s Residence

[27] The conclusion that the trial judge erred in his approach to the cell phone evidence in light of Fearon is not dispositive of this appeal. The Crown must persuade the court that the verdict would not necessarily have been the same absent the error.

[28] Whether the Crown can meet its burden turns on whether the evidence gathered during the search of 18 Eden Avenue should have been admissible. The issue is whether, even assuming the evidence of the calls were included, the ITO was sufficient to support the issuance of a warrant to search 18 Eden Avenue. If it was not, the evidence from the search of 18 Eden Avenue must be excluded, as the Crown concedes, and the Crown cannot meet its burden on an appeal from an acquittal.

[29] The Crown submits that if the evidence of the calls between Liew and the respondent is included in the ITO, the evidence in the ITO as a whole supports the warrant. On appeal, the Crown does not challenge the trial judge’s holding that the affiant failed to make full and frank disclosure with respect to the issues surrounding Wendy Yu’s address. Nor does it challenge the trial judge’s decision to excise all references to Wendy Yu.

[30] The Crown argues, however, that the remaining evidence provided reasonable grounds to believe that evidence of the offence would be found in the respondent’s residence. In support of this submission, the Crown notes that the delivery was made to the Yorktech complex where the respondent owns two units, the respondent’s van was seen at Yorktech on the day of the delivery, and Liew and the respondent phoned each other around the time of the delivery.

[31] I reject the Crown’s arguments. In my view, even with the evidence of the calls between Liew and the respondent included in the ITO, there was insufficient evidence to provide reasonable grounds to believe that evidence of an offence would be found in the respondent’s residence.

[32] The search warrant was issued under s. 11(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”), which provides:

11. (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) anything in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) anything that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

[33] In other words, in order to obtain a warrant in this case, the RCMP were required to have reasonable grounds to believe that an offence under the CDSA had been committed and that a search of 18 Eden Avenue would afford evidence of the offence: see R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. The reasonable grounds standard does not require proof beyond a reasonable doubt, but rather a credibly based probability that evidence will be found in the place sought to be searched: Sadikov, at para. 81.

[34] The reviewing judge must ask “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (emphasis in original): R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 962, at para. 54. It is not the role of the reviewing judge to decide whether he or she would have issued the warrant. Appellate courts should defer to the findings of a reviewing judge “[a]bsent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence”: Sadikov, at para. 89.

[35] There is no doubt that the RCMP had reasonable grounds to believe that an offence under the CDSA had been committed. A substantial shipment of cocaine had been intercepted and was to be delivered to the Yorktech complex.

[36] The main issue is whether the RCMP had reasonable grounds to believe that a search of 18 Eden Avenue at the relevant time would afford evidence of the offence. I conclude that they did not.

[37] First, in my view, the trial judge did not implicitly decide that if the evidence of the phone calls were included then the warrant could have issued. The Crown relies on para. 167 of the trial judge’s pre-trial motions reasons to argue that he concluded the warrant could be upheld if the evidence of the phone calls were included in the ITO. The trial judge stated:

The warrant may be saved if the evidence of the phone call between Mr. Liew and Mr. Yu is not excised. There were certainly reasonable grounds to believe that Mr. Yu lived at 18 Eden. There were reasonable grounds to believe that a person involved in the importation of cocaine would have customs records or other documentation connected to the offences charged. But without the evidence of the phone call apparently made by Mr. Liew to Mr. Yu at the time the shipment was being unloaded, there was insufficient evidence in the ITO connecting Mr. Yu to the offence. I have deferred the fate of the phone call evidence to the s. 24(2) hearing. Subject to that evidence surviving, however, in my view the ITO could not possibly have afforded reasonable grounds that evidence of the offences charged in this case could be found at 18 Eden.

[38] The Crown submits this paragraph means the trial judge decided that if the evidence of the calls were included, the ITO would provide sufficient evidence to support issuance of the warrant.

[39] I do not read this paragraph as the Crown suggests. In my view, the trial judge decided only what he was required to decide at the time: that certainly without the evidence of the phone calls, the ITO was inadequate. He left open the possibility that the ITO could be sufficient if the evidence of the calls were not excised. He conducted no analysis of whether the ITO was sufficient with the calls included. The trial judge later decided that he was required to excise the evidence of the calls from the ITO. He was never called upon to decide the sufficiency of the ITO with the cell phone call evidence included, and did not do so. As the trial judge did not decide this issue, it is not possible to give his decision the deference that it would otherwise be owed.

[40] Second, I reject the Crown’s submission that the evidence of the phone calls saves the warrant.

[41] As discussed, the trial judge held that there was no reliable evidence on which to conclude that Wendy Yu resided at 18 Eden Avenue at the relevant time. The Crown does not challenge the decision to excise all references to her in the ITO. The validity of the warrant therefore hinges on the evidence of a connection between the respondent and the offence. The ITO contained three pieces of circumstantial evidence connecting the respondent to the offence:

1. He owned and operated a legitimate business out of two units in the Yorktech complex where the delivery occurred;

2. His car was seen parked near his business on the day the delivery occurred; and

3. He and Liew phoned each other around the time the delivery occurred.

[42] In my view, this circumstantial evidence, considered together, might raise suspicion about a potential connection between the respondent and the offence, but it is not enough to establish reasonable grounds.

[43] The Crown asks this court to infer that Liew called the respondent to discuss the delivery and that the respondent was therefore involved in the offence, and that evidence of the offence would therefore be found at his residence. There is no evidence in the ITO about the content of the calls. The inferences that can be made from the evidence of the calls are speculative and, without more to indicate a connection between the respondent and the offence, insufficient to meet the threshold of credibly based probability.

[44] Despite a significant investigation, police had uncovered no further evidence pointing to the respondent’s involvement and had considerable evidence about the involvement of other individuals in organizing the offence. With the exception of the excised information about Wendy Yu, none of these other individuals were linked to the respondent’s residence.

[45] In considering the evidence in the ITO as a whole, the inference that Liew (as opposed to La) would have called anyone to arrange a pick-up or drop-off of the cocaine is weak. The evidence suggests that Liew’s involvement in the offence was limited and that La had a leadership role. The ITO disclosed that: (1) La also made a phone call at the time of the delivery; (2) La may have been involved in other aspects of the offence; and (3) La loaded the wood into his own vehicle. On the basis of the evidence disclosed in the ITO, Liew may have been no more than a hired hand. His limited role diminishes the strength of any inference that the phone calls between him and the respondent related to the delivery.

[46] While the circumstantial evidence of the respondent’s involvement must be considered cumulatively, the potential innocent explanation for his connection to the Yorktech complex and the presence of his car at the complex on the day in question cannot be disregarded. There was no evidence that there was any interaction between La and Liew with the respondent’s vehicle. The surveillance of the respondent conducted after the controlled delivery indicated he was often at the complex conducting his legitimate business.

[47] For the warrant to be valid there must have been evidence to support a credibly based probability that the respondent was involved in the offence and that evidence of the offence would be found through a search of his residence. The main evidence connecting the respondent to the offence was the phone calls with Liew. In my view, the bare fact of the calls is not enough. The additional evidence does not help to establish a connection between the respondent and the offence that amounts to more than a suspicion. Considering the evidence in the ITO as a whole, the credibly based probability standard was not met. A warrant based on the ITO, as altered on review, could not have been issued.

[48] The warrant to search the respondent’s residence was therefore invalid and the search was warrantless. The Crown does not argue that the evidence obtained from the search should nonetheless be admitted in evidence. Without this evidence, the Crown has no case against the respondent, and cannot meet its burden.

E. Disposition

[49] In all the circumstances, it is my view that the Crown has not met its onus on its appeal from the respondent’s acquittal. Accordingly, I would dismiss the appeal.

Released: “MT” NOV 2, 2015

“M. Tulloch J.A.”

“I agree. J. Simmons J.A.”

“I agree. Grant Huscroft J.A.”