ONTARIO COURT OF JUSTICE

CITATION: R. v. Lieu, 2021 ONCJ 428

DATE: 2021 08 06

COURT FILE No.: Newmarket 4911 998 19 03599

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TIEN LIEU

Before: Justice A. A. Ghosh

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

Reasons for Judgment released on: August 6, 2021

Counsel: S. Montefiore .......................................................................................... counsel for the PPSC R. Rusonik ...................................................................................... for the applicant 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).

[2] 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]

Summary of the Grounds for Judicial Authorization:

[3] The RCMP in British Columbia (BC) was issued production orders that sought to obtain “records at a national level” from Health Canada to “draw a pattern of companies or corporations that divert ephedrine.” While possession of ephedrine is legal, it can be illegally used in the illicit manufacturing of methamphetamine.

[4] On November 28th, 2018, the PPSC advised the RCMP that these production orders were “invalid”, due to the primary fact that no offence was disclosed. Shortly before receiving this advice, the RCMP had used information derived from these orders to identify shipments of ephedrine from BC to Ontario. The RCMP in Ontario conducted surveillance and tracked the delivery of identified shipments to an “address of interest” in Vaughan.

[5] The RCMP observed that a portion of the shipment in question was delivered by Tien Lieu to a second Vaughan address. A confidential informant had previously informed authorities that Mr. Lieu was a member of a criminal group involved in clandestine drug activity. The confidential informant had provided information to the authorities on eight previous occasions over the year preceding the authorizations. The information had not supported any prior authorizations, nor had it been acted on by the police.

[6] On December 18th, 2018, police observed an unknown Asian male in a Honda Civic attending one of the Vaughan addresses. The informant had advised that another male involved in this criminal group matched the description of this male and his car. This male was later observed to be in possession of several tin baking trays, which are commonly used in illegal drug production facilities to “dry” finished drug product.

[7] On December 21st, 2018 tracking warrants were issued for two vehicles that were registered to Mr. Lieu. He had been observed by the police to have driven from certain locations in a manner supporting that he was conscious of being followed. On December 31st, 2018, another shipment of ephedrine was tracked by the authorities to a property in Mississauga. Mr. Lieu’s vehicle was observed there, along with a rental truck that was later followed to a self-storage unit in Vaughan. Police observed a compressed gas cylinder inside this unit, commonly associated with “clandestine drug production facilities”.

[8] Several tracking and general warrants were issued and executed as a result of the submitted grounds. Over 9 kilograms of methamphetamine was seized from the storage locker which was connected to the applicant.

Analysis:

Review of a Judicial Authorization: Legal Principles

[9] The issuing justice of a warrant must have reasonable grounds to believe an offence has been committed and that the place to be searched will afford evidence of the offending.

[10] Where the ITO[^2] is based on information obtained from a confidential informant, as was the case here, the issuing justice must conduct three related inquiries:

1. Was the informant credible?
2. Was the information provided compelling?
3. Was the information sufficiently corroborated by the authorities before pursuing the authorizations?

Weaknesses in one area may be compensated by strengths in the others. The “totality of the circumstances” must be considered to ensure the standard of reasonable probability is satisfied. [^3]

[11] The principles related to the s.8 Charter freedom from unreasonable search and seizure apply to the judicial review of issued authorizations to ensure that they were based on reasonable grounds. This challenge navigates the common tension between Mr. Lieu’s right to disclosure and to make answer and defence against the interests of law enforcement and the protection of informer privilege. An authorization is presumed to be valid. The onus is on the applicant to establish a violation of the s.8 Charter right on the balance of probabilities.

[12] The reviewing justice does not perform the same function as the issuing justice. This is not a rehearing of the applications for judicial authorization. I must determine whether, based on the evidentiary record as amplified on review, the authorization could have issued. If it could have issued, I must uphold it and not interfere. Determining whether a judicial authorization violated an applicant’s s.8 Charter right engages a contextual analysis, bearing in mind the totality of the circumstances.[^4]

Reliance On “Invalid” Production Orders – Scope of Excision

[13] Section 487.14 of the Criminal Code permits a judicial officer to issue an order on reasonable grounds directing a party to produce records that “will afford evidence” of an offence. A statutory and constitutional requirement for issuance of a production order is that the justice reasonably believes that “an offence has been or will be committed.” This basic requirement was not satisfied during the information gathering process that eventually informed this investigation.

[14] The RCMP in B.C. were issued production orders on November 22, 2017 and July 11, 2018. These orders permitted the RCMP “to obtain ‘records at a national level’ from Health Canada to “draw a pattern of companies or corporations that divert ephedrine….” On November 28th, 2018, The PPSC advised the RCMP that these production orders were “invalid, due to the primary fact that no offence had been or would be committed.” As the affiant for the applications under review noted, while ephedrine can be unlawfully used in the illicit manufacturing of methamphetamine, “there are no limits to the amount an entity can legally possess.”

[15] Prior to receiving the advice the production orders were invalid, the RCMP had used information from these orders to identify an Ontario “address of interest” that had received large shipments of ephedrine. Mr. Lieu was observed attending this address, informing the grounds. The affiant for the ITO under review noted the following:

To be clear, I am not relying on the fact that the RCMP in British Columbia indicated the shipments contained ephedrine. The initial information received from British Columbia indicated the address of interest being Maye Transport located at 3422 Davis Drive in East Gwillimbury, Ontario. This information was supplied on October 22, 2018. The CLEAR Team conducted a substantial amount of investigative work, identified targets and formulated grounds between the receipt of this information and November 29, 2018, being the date I learned that the BC Production Orders were deemed invalid.

I have not relied on the fact that the information from BC says “ephedrine”. I have relied on the address of interest. Again, all actions taken and grounds developed subsequent to learning the BC Production Orders were deemed invalid, was done so in good faith. The grounds detailed in this affidavit, on which I base my beliefs that the activities in which identified targets are involved are illicit in nature, are derived from investigative work undertaken not only on the actions undertaking in good faith, but also on additional information learned subsequent to learning the BC Production Orders were deemed to be invalid.

[16] A review of the impugned production orders themselves is unnecessary to find that they were improperly issued. The affiant acknowledged that the orders were obtained to collect Health Canada records revealing commercial entities that lawfully divert ephedrine. The PPSC soon advised the RCMP that the related ITO’s did not disclose an offence – a finding which is apparent from the affiant’s description of their purpose.

[17] The affiant relied on unconstitutionally obtained information to identify an “address of interest” suspected of criminal activity. Mr. Lieu attended that address and engaged in suspicious activity. The Crown submitted that the RCMP should be permitted to rely on the orders deemed invalid as a preliminary investigative step, akin to a crime-stoppers tip. While I accept that a crime stoppers tip is untested while the police here properly pursued judicial approval, I do not find the submitted analogy helpful. The RCMP had actively pursued orders that they should have known failed to satisfy a basic constitutional requirement. The investigation against Mr. Lieu did not progress without the records.

[18] Where information in an ITO was obtained due to a Charter violation, that information must be excised by the court reviewing the sufficiency of the authorization. [^5] The address receiving a large shipment of ephedrine was identified by the police as a result of a Charter violation. The information related to these shipments must be excised, including the receiving “address of interest”.

[19] Even if I declined to excise the results of the police surveillance stemming from the initial address that led to the identification of Mr. Lieu, these observations could hardly sustain a reasonable suspicion of specific criminal activity. On its own, the surveillance could not support issuance of the authorizations. It must be determined if the authorizations could have issued based on this and the remaining information deemed reliable. The evidence of the confidential informant against Mr. Lieu becomes central.

Confidential Informant Information:

[20] In assessing the reasonableness of the reliance on information from a confidential informant, the Debot criteria must be applied in assessing whether the source was sufficiently “credible”, and the information was “compelling” and “corroborated”. Again, I must assess the totality of the circumstances to determine whether the standard of reasonableness was met while allowing for strengths in one area to compensate for weaknesses in others.[^6] I will first conduct a facial review of the redacted authorization as supplemented by the judicial summary explaining the nature of the redactions.

“Credible” informant?

[21] Several factors support a finding that the credibility of the informant is low. Despite having provided information to the police on eight separate occasions within a year of the applications, no authorizations had previously been issued based on the information. It had not even been previously acted upon by the police. The police handlers noted that the informant had “not been entirely truthful about one specific claim”.

“Compelling” Information from the Confidential Informant?

[22] The information provided by the confidential informant that Mr. Lieu was involved in a criminal group engaged in clandestine drug activity was reasonably compelling and current.

“Corroborated” Information?

[23] I find that the corroboration of the informant’s information was poor. Notably, the informant’s representations about “Event X” was investigated and deemed demonstrably false to some degree. The “handlers concluded that CI#1 was clearly not being entirely truthful about this series of events.”

[24] This is an exceptionally negative fact detracting not only from the credibility of the informant but also from any efforts to corroborate the information provided. The other efforts to corroborate the information confirmed largely biographical information and some suspicious movements of the applicant.

Garofoli Step-Six, Sub-Facial Review and Debot Factors Applied

[25] Where the redacted ITO as amplified during the review process is unable to sustain the authorization, the reviewing jurist may conduct a sub-facial review of the redactions to determine Charter compliance. This is “step six” as outlined by the Supreme Court at paragraph 79 in Garofoli:

If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function.

[26] I need not determine here whether the applicant has been made sufficiently aware of the nature of the redactions, as my sub-facial review only magnifies the concerns raised by the defence. I acknowledge, however, that the judicial summary may not satisfy the threshold ability of Mr. Lieu to properly challenge the ITO.

[27] In applying the Debot analysis to a sub-facial review of the ITO, the compelling quality of the information is predictably heightened. However, the other two factors are notably weakened further. The already problematic credibility of the informant is confirmed. One of the more significant steps taken by the police to corroborate information provided by the informant yielded a significant and highly troubling falsehood. Much of the balance of the corroboration supports suspicious and surveillance-conscious activity that would not satisfy the reasonable suspicion threshold. The rest of the corroboration was largely biographical in nature.

[28] Assessing the evidence of the informant in its totality, it cannot afford reasonable grounds. This is supported by the fact that the investigators had not acted on the information before obtaining the address of interest and connecting it to Mr. Lieu. Again, this address of interest was obtained through a Charter breach that involved a failure to satisfy the most basic statutory and constitutional requirement.

Conclusion: s.8 Violated

[29] Reviews of the redacted and unredacted ITO both independently support on the balance of probabilities that the authorizations could not have issued. A s.8 violation is found.

Section 24(2) of the Charter and Balancing the Grant Factors

[30] In determining whether to exclude the seized drugs pursuant to s. 24(2) of the Charter, I must assess the effect of admission of the evidence on societal confidence in our justice system. In doing so, I am required to balance the seriousness of the Charter-infringing State conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in adjudication on the merits.[^7]

Seriousness of the Violations

[31] The s.8 violation was exceptionally serious. The address tied to the applicant was identified through Health Canada records collected as a result of issued authorizations that failed to satisfy the core statutory requirement of an identified offence.

[32] The affiant’s transparency with the issuing justice about the submitted scope of the reliance on these orders does not equate with investigatory good faith. The conduct of the broader RCMP investigation into the lawful diversion of ephedrine must be assessed fulsomely. The identification of the address of interest in Ontario could not have occurred without the records arising from the invalid orders.

[33] More than that, the RCMP pursued private Health Canada records of palpably innocent parties engaged in otherwise lawful activity. An application for judicial authorization must be grounded in an offence. Again, this is basic.[^8] The justice system must distance itself, in this case through evidentiary exclusion, from State conduct seeking to elicit private information without even a reasonable suspicion of criminality.

[34] The informant information was weak and could not substantiate reasonable grounds on its own, as illustrated by the fact that the RCMP had not meaningfully acted on it prior to its reliance on unconstitutionally obtained information. This compounds the seriousness of the violation and supports exclusion of the seized drugs.

Impact of Any Breaches on Charter-Protected Interests

There was a significant impact on Mr. Lieu’s privacy interests. He was subjected to warrants that tracked his movements. Search warrants were executed on his home and a storage locker, places that attract distinct but heightened privacy interests.[^9]

Societal Interest in Adjudication on the Merits

[35] There is a strong societal interest in investigating traffickers and producers of illegal drugs. Judicial authorizations are necessary tools that support law enforcement in investigating such criminality that often transpires in the shadows. A tremendous quantity of drugs was seized. The evidence is critical to the Crown case.

Balancing the Grant Factors

[36] The serious violation and the substantial impact of the breach on the privacy interests of the defendant strongly support exclusion. When consideration of two of the Grant factors strongly support exclusion, the societal interest will rarely support admission on its own.[^10] In balancing these factors, the evidence must be excluded. Mr. Lieu is acquitted. My thanks to counsel.

Released: August 6, 2021

Signed: Justice A. A. Ghosh

[^1]: R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115 [^2]: “Information to obtain” a judicial authorization [^3]: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, para. 53 [^4]: Garofoli; R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109; R. v. Reid, 2016 ONCA 524, [2016] O.J. No. 3554, para. 73 R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, para. 51 [^5]: R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223, para. 50; R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3 [^6]: Debot, para. 53 [^7]: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 [^8]: R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34, paras. 139-40, 149 [^9]: R. v. Feeney, [1997 1997 342 (SCC), 2 S.C.R. 13; R. v. Lam, [2014] O.J. No. 3645, paras. 340-342 [^10]: R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504