Ontario Court of Justice

Citation: R. v. Lieu, 2021 ONCJ 401

Date: July 20, 2021

Court File No.: Central East - Newmarket - 4911 998 19 03599

Between:

Her Majesty the Queen

— and —

Tien Lieu

Before: Justice A. A. Ghosh

Ruling re: Disclosure

Heard: March 15, 21, April 14, 22, 28, May 10, July 12, 20, 2021

Reasons for Judgment released: July 20, 2021

S. Montefiore, counsel for the Crown

R. Rusonik, counsel for the defendant Tien Lieu

Ghosh J.:

Overview:

[1] Mr. Tien Lieu is being tried before me for possession of methamphetamine for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act (CDSA). The defence has conceded that Mr. Lieu committed the offence. An acquittal is sought through a multi-step s.8 Charter challenge to various judicial authorizations, applying the principles outlined by the Supreme Court in [R. v. Garofoli][^1].

[2] In furtherance of this application, counsel has applied for the disclosure of application materials in support of two arguably unrelated production orders from British Columbia (B.C.). These orders were issued to assist the RCMP in obtaining records on a national scale revealing the diversion of large amounts of ephedrine, a key ingredient used in the illicit production of methamphetamine. This investigation apparently led to the identification of shipments of ephedrine from B.C. to Ontario, some of which were allegedly connected to the applicant and informed the grounds to pursue the authorizations that are being challenged before me.

[3] The applicant also seeks disclosure of the date the RCMP was informed by prosecuting counsel that the two production orders were invalid, due to the primary fact that no offence was disclosed. I provided summary reasons ordering the disclosure of all submitted information. These are my final reasons.

Disclosure – Garofoli applications and Evidentiary Hearings in General:

[4] It is accepted that the defendant has a general right to disclosure of all relevant evidence in the State’s possession in order to make full answer and defence at trial. While this right also exists for evidentiary hearings, the scope and operation of the right is contextualized by the admissibility focus of the hearing. The right to disclosure for such a hearing may have to be balanced against other interests. Justice Campbell of our Superior Court summarized the disclosure right in the context of a s.8 Garofoli Charter application in [R. v. McKenzie][^2] at paragraph 15:

“In the specific context of an evidentiary hearing conducted pursuant to R. v. Garofoli to determine the validity of an authorization or search warrant and the admissibility of the evidence obtained by the police pursuant to ss. 8 and 24(2) of the Charter, the right to disclosure entitles the accused to virtually automatic access to: (1) all documents that were put before the authorizing or issuing justice; and (2) all other relevant materials in the "investigative file" concerning the accused.”

[5] The materials being sought were not “put before” the issuing justice, so the focus here is on the content of the “investigative file”. Justice Campbell further outlined the scope of the disclosure obligation as it relates to the “investigative file” at paragraph 18:

“If the material is part and parcel of the “fruits of the investigation” against the accused, and is thereby part of the “investigative file”, then it must be disclosed to the accused, upon request, subject only to issues of privilege, unless the Crown is able to establish that the materials clearly irrelevant… On the other hand, if the material is not part of the “investigative file” against the accused, then it is presumptively irrelevant and need not be disclosed unless the accused can establish that there is a reasonable possibility that disclosure will be of assistance to the court in relation to a material issue on the application to quash the search warrant or set aside the authorization.”

Positions of the Parties:

[6] In furtherance of the application for s.8 Charter relief, the defence seeks disclosure of production orders and related ITO’s[^3] issued in B.C. on November 22, 2017 and July 11, 2018. The affiant in the ITO’s currently being challenged disclosed that he had reviewed “information” from RCMP investigations in B.C. “generated” from these orders.

[7] These orders were sought by the RCMP “to obtain “records at a national level” from Health Canada to “draw a pattern of companies or corporations that divert ephedrine…’.” At some point these authorizations were deemed constitutionally invalid by the Crown, informing the applicant’s position that they are relevant to determining whether the RCMP knowingly relied on improperly obtained information in order to pursue evidence and authorizations related to him. The date the RCMP learned of the Crown position is thus submitted to be relevant as well.

[8] The Crown opposed the application to disclose the production orders. It was submitted they were irrelevant, as they did not form part of the affiant’s grounds and were not put before the issuing justice. It was submitted the orders were not part of the “investigative file”. The Crown asserted solicitor client privilege over the date the RCMP was advised by the PPSC[^4] that the orders were invalid.

Application to the Case:

The B.C. Authorizations: Police Seeking Records of Diversion of Ephedrine

[9] In applying the analysis to determine the disclosure of the two production orders from B.C., I centre on their potential relevance to the Charter challenge before me. In doing so, I consider their purpose, results, and prospective bearing on the orders under review.

[10] The B.C. authorizations were applied for by the RCMP in order “to obtain ‘records at a national level’ from Health Canada to ‘draw a pattern of companies or corporations that divert ephedrine…’.” As the affiant observed, possession of ephedrine is legal, but it is often used for the illegal manufacturing of methamphetamine.

[11] A timeline was provided by the affiant detailing dates when these suspicious shipments were identified, soon followed by the notification that the PPSC had “deemed” the production orders being relied upon were “invalid”. The opinion was grounded in the “the primary fact that no offence had been or would be committed.”

[12] Given the language and organization of the ITO’s under review, two reasonable inferences arise for disclosure purposes. Firstly, the RCMP sought these records in order to conduct an interprovincial investigation into the criminal use of ephedrine in the illicit production of methamphetamine. Secondly, these records then contributed to the investigation of identified shipments of ephedrine from B.C. to Ontario. At least one of these shipments were then tracked to the applicant.

[13] For the purpose of disclosure, I make no distinction between invalidity being either “deemed” by the Crown or “ordered” by the court. In either case, the legal opinion is a potential signal to the affiant and the issuing justice that some reliance might be made on unconstitutionally obtained information. This is potentially relevant to determining whether these orders in Ontario could have issued, and, minimally, for the remedy analysis in the event a violation is found. Consequently, I find that the application materials for the B.C. orders form part of the “fruits of the investigation” and thus the “investigative file”. They are not “clearly irrelevant”.

[14] Alternatively, I am persuaded for the same reasons that the applicant has established a reasonable possibility that the B.C. authorizations will assist in determining whether the RCMP knowingly relied upon unconstitutionally obtained information in identifying shipments traced to the applicant and then seeking related orders. Subject to redactions of privileged material, the authorizations and related applications are ordered disclosed.

Disclosure of the date the PPSC “advised” the RCMP the BC orders were invalid

[15] The same analysis also supports an order that the Crown disclose the date the PPSC informed the RCMP that the B.C. orders were constitutionally invalid. This information is part of the investigative file and is relevant to assessing the scope of any reliance by the affiant and the issuing justice on unconstitutionally obtained information.

[16] I accept that this information relayed from the prosecution to the investigation might be characterized as solicitor-client communications between the Crown and police.[^5] Disclosure is subject to the rules of privilege. I do not find, however, the Crown claim of solicitor client privilege persuasive.

[17] The thrust of the “advice” itself was disclosed in the ITO under review. No privilege was asserted over this information. Had it been, I would have found that it was waived in pursuit of authorizations targeting the applicant. No reasonable claim of privilege over the date of the “advice” could be made in such circumstances, nor was one offered.

[18] For the purpose of disclosure, I find the date of the “advice” of the Crown of the constitutional invalidity of seminal authorizations relevant in assessing any ensuing reliance made on the records obtained as a result. To this point, I am not persuaded that the date the affiant was personally informed of the advice to be dispositive, nor am I convinced that it is sufficient of the affiant to inform the issuing jurist that he was “not relying on the initial information from the RCMP in British Columbia as grounds…”.

[19] Firstly, in assessing relevance, it is reasonable to infer that some use of this tainted information was made in gathering evidence that led to the relevant shipments of ephedrine to Ontario. The applications here were not prospectively insulated from scrutiny by the affiant’s appropriate candour that these orders were deemed invalid.

[20] Secondly, the affiant is an investigator with the RCMP, the prevailing national investigative service, that had sought and obtained records under circumstances that the Crown had deemed problematic. These records informed an interprovincial investigation into commercial entities diverting ephedrine. This same overarching investigation, or its tributary, identified shipments of ephedrine to Ontario that were linked to the applicant. Again, the advice was a potential signal to the RCMP that any reliance at any time on the fruits of the authorizations deemed invalid could taint any related investigations.

[21] The date the RCMP was advised by the PPSC of the invalidity of the B.C. orders is relevant, unprotected by privilege, and is ordered disclosed to the applicant.

Disclosure: First-Party or Third-Party Status of RCMP and PPSC

[22] The RCMP in B.C. is not a third party for this disclosure application. I am mindful of the Supreme Court’s clarification in [R. v. McNeil][^6] that records in possession of one Crown entity should not be deemed to be in possession of another and that Crown entities other than the prosecuting Crown are third parties for disclosure purposes.

[23] I accept that the disclosure I have ordered was generated in another province. However, it is in the possession of the same investigative and prosecutorial services involved in the national investigation into the commercial diversion of ephedrine: The RCMP and the PPSC. That investigation directly informed the present prosecution. I find that this is first party disclosure subject to the disclosure regime in [R. v. Stinchcombe][^7].

[24] The application for disclosure is granted.

Released: July 20th, 2021

Signed: Justice A. A. Ghosh

[^1]: 1990 CanLII 52 (SCC), [1990] S.C.J. No. 115 [^2]: 2016 ONSC 242, [2016] O.J. No. 293 [^3]: “Information to obtain” a judicial authorization [^4]: The Public Prosecution Service of Canada [^5]: R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565 (SCC), paragraph 15 [^6]: R. v. McNeil 2009 SCC 3, [2009] S.C.J. No. 3, paragraph 13 [^7]: 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.