Ontario Court of Justice
Date: 2025-04-16
Court File No.: Central East - Newmarket 4911-998-20-07014-00
Between:
His Majesty the King
— and —
Jian Chen
Before Justice Paul M. Cooper
Heard on March 11, 12, 13, 2024, April 9, 2024, May 2, 2024, June 17 and 25, 2024, October 10, 2024 and December 20, 2024
Oral Reasons for Judgment given on June 25, 2024 and December 20, 2024
Written Reasons for Judgment released on April 16, 2025
Counsel:
A. Ghosh — counsel for the Crown
C. Szpulak — counsel for the accused Jian Chen
Reasons for Judgment
COOPER J.:
[1] Jian Chen (“Jian”) was charged on an information alleging that he trafficked one (1) kilogram of ketamine, contrary to s. 5(1) of the Controlled Drugs and Substances Act.
[2] In June of 2020, the York Regional Police opened an investigation of a suspected ketamine trafficker. The defendant was not the target of the investigation. In fact, he was not known to the police nor was he on any police intelligence radar.
[3] By happenstance on June 26, 2020, through an evolving series of multiple but separate events, Jian Chen quickly became discovered. He was observed driving a black Audi SUV in the parking lot of the Pacific Mall in Markham, Ontario. Police surveillance outlined the defendant’s vehicle came to a stop while driving in a row perpendicular to the parked vehicle of the initial target of the police investigation. The police observed their target approach the passenger window of the defendant’s Audi, reach in and retrieve a noticeable item that is then taken directly back to the target’s own vehicle. Both the target and Jian Chen were quickly stopped, detained, and arrested. This noticeable and identifiable item contained one kilogram of ketamine.
[4] Jian Chen entered a plea of not guilty. He challenges the admissibility of the evidence and asserts that the evidence should be excluded pursuant to s. 24(2) of the Charter as a result of breaches of his 10(a) and 10(b) rights.
[5] The blended voir dire/trial began on March 11, 2024. Evidence on the application was heard together with submissions on the alleged breach and s. 24(2) relief within the three days scheduled for the matter. Counsel for Jian Chen informed the Court no evidence would be called on the voir dire. Additionally, counsel advised that the defendant would not call any evidence on the trial.
[6] After adjourning the matter for my ruling, I decided during deliberation that it would be important to hear thorough submissions on the applicability of s. 24(1) of the Charter from the parties as the defendant had requested “such further and other relief” that the Court may “deem just and appropriate”. I heard those submissions on May 2, 2024.
[7] On June 25, 2024, I informed the parties of my decision. I indicated to the Crown and defence that I had found a breach of both s. 10(a) and s. 10(b) but determined that I would not exclude the evidence under s. 24(2) of the Charter. Further, I indicated that as a potential remedy under 24(1) of the Charter specifically, should the defendant be found guilty, consideration would be given on sentencing. The remedy was appropriate given the minor breach of s. 10(a) and the more troublesome breach of s. 10(b). A stay of proceedings or exclusion of evidence under 24(1) of the Charter was not warranted.
[8] I further went on to provide brief reasons on the trial proper. I determined that on the record before me on the trial proper that the Crown had discharged its burden of proof beyond a reasonable doubt and found Jian Chen guilty of trafficking in ketamine. Mr. Jian Chen was sentenced on December 20, 2024. As indicated on the record, the brief oral submissions were provided with reasons to follow. These are the reasons.
Facts
[9] The York Regional Police Guns, Gangs and Drug Enforcement Unit had concern regarding the influx of ketamine being available in the Region. From information obtained they suspected that Yang Chen (the “Target”) [no evidence of any relation to the defendant] was trafficking in ketamine. The Unit in their daily briefing decided to conduct surveillance on the Target’s residence. As part of the investigation, an undercover police officer (“U/C”) would attempt to engage the Target to provide or sell a sample of ketamine to the U/C.
[10] What unfolded next came as an unexpected surprise. After commencing surveillance just after 6:00 p.m. on June 26, 2020, the police witnessed consecutive but separate acts of trafficking. The surveillance team had limited members. Once the first observation of trafficking was observed a takedown was called. Some of the observation team followed a female involved and arrested her. She was found in possession of a large quantity of marijuana and $100,000 in cash. The female apprehended only spoke Mandarin.
[11] The second unexpected crime observed in short order involved a pickup truck and the loading of garbage bags. Believing another incident of trafficking occurred, the team decided to call for a second takedown. As the full team had not returned back to the Target’s residence, one officer, P.C. Colson, followed the pickup which pulled into a neighbourhood plaza a short distance away. P.C. Colson witnessed another person now in attendance and, being alone, the officer was faced with the possibility of the impossible task of now following two separate suspects. He determined that notwithstanding he was alone he would have to act quickly. He called for backup and proceeded on his own to approach both suspects, grabbed their keys to their vehicles and placed them under arrest. Both of these suspects also only spoke Mandarin.
[12] Concurrent with the surveillance team having the Target’s residence under surveillance, the undercover police officer had been communicating with the Target in an attempt to obtain the ketamine sample from him. The Target provided an opportunity well beyond the undercover’s objective and offered to transact a full kilogram of ketamine. That deal was set up quickly. The transaction was to occur around 8:30 p.m. that evening, near a bank located in the parking lot area of the Pacific Mall.
[13] The Target left his home around 7:15 p.m. and was followed. The police had not made provisions for this large purchase. It became important to follow the Target, who only had a small black pouch with him that he had retrieved from a white vehicle at his residence, prior to driving off to the Pacific Mall in a black BMW.
[14] While the team had the Target under surveillance, the undercover was informed by the Target he needed five further minutes before he could meet for the agreed transaction at 8:30 p.m.
[15] It is during these five minutes that Jian is observed driving his black Audi SUV up to where the Target had parked in the mall parking lot. The officers watched as the Target went up to the front passenger window of the defendant’s vehicle, reached in the opened window and retrieved what looked like a bag the size of a shoebox, and immediately returned to his own vehicle as the black Audi SUV drove off.
[16] The surveillance team split and a takedown was called. The Target had the item described as a bag the size of a shoebox in his vehicle. The police found one kilogram of ketamine secreted in the package. The Target spoke Mandarin. There were no other items, let alone any type of similar items, in the Target’s vehicle.
[17] Jian was stopped a short distance away on Kennedy Road, north of Denison Drive, by Detective Constables Simard-Caron and Hamburg at 8:37 p.m. Constable Hamburg went to the driver’s side of the vehicle and advised the accused that he was under arrest for trafficking. He asked the defendant, who had a cell phone in hand, to get out of the car and he complied and moved off the roadway to the sidewalk area. D.C. Simard-Caron handcuffed Jian Chen. The officers performed a cursory search incident to arrest and requested a transport vehicle. D.C. Hamburg read rights to counsel but recognized a language issue as the defendant responded, “No English; no English.” The officers requested an officer who could speak Cantonese or assist with language interpretation to attend as the prisoner transport officer. They believed this officer would be able to attend in minutes.
[18] D.C. Hamburg was shocked when Police Constable Adams attended. Constable Adams was to transport Jian Chen to Five District, minutes away, as the requested officer who could assist with language interpretation was helping the booking Sergeant with the earlier arrests.
[19] P.C. Adams, unfortunately, did not bring police property bags with her to the scene, so the desired transport to have the defendant obtain and understand rights to counsel now encountered a second delay in time.
[20] A third delay in delivering rights to counsel occurred after transport at the station while P.C. Adams and the defendant waited outside the sally port at Five District. She was advised to wait with Jian as three other individuals arrested by the Guns, Gangs and Drug Unit earlier that evening all needed interpretation to complete their booking process prior to the defendant being assisted.
[21] By 9:46 p.m. Jian Chen had been brought into the police station at Five District for processing. P.C. Tong assisted the booking Sergeant. P.C. Tong, who is fluent in Mandarin, informed the defendant of the reason for his arrest and cautioned him. He further read him his rights to counsel and provided a secondary caution. P.C. Tong was told by the defendant that he had an immigration lawyer. P.C. Tong told Jian Chen that he needed a criminal lawyer, not an immigration lawyer. As P.C. Tong relayed some of the information to the Staff Sergeant, the Staff Sergeant instructed P.C. Tong that the defendant will be “going with” duty counsel. Duty counsel service was contacted at 10:07 p.m. At 10:20 p.m., duty counsel called back and were able to assist and provide advice accommodating the language barrier. Jian spoke to duty counsel in private at 10:22 p.m.
Position of the Parties – Charter Application
I. The Defence
A. Section 10(a) and Section 10(b) of the Charter
[22] Mr. Chen was detained at 8:37 p.m. on June 26, 2020 and waited at least one hour and nine minutes before being provided his rights to counsel. The Guns, Gangs and Drug Enforcement Unit were aware the Target of their investigation spoke Mandarin and was communicating in Mandarin with the undercover officer. They must have realized that at some point if an arrest was to happen they would need the assistance of Officer Tong to provide rights to counsel in Mandarin. Further, as their objective was not just the Target but discovering the ‘back-end’ source or the ‘bigger fish’, it was reasonable for the police to make provisions for rights in Mandarin for any other arrestee found during their investigation.
[23] The police failed to make reasonable provisions or be aware of alternatives to ensure rights to counsel were provided immediately upon arrest. Additionally, when rights to counsel were provided, the defendant had the right to speak to counsel of choice and not to be steered to duty counsel by a booking Sergeant, who knew better.
B. Section 24(2) Remedy
[24] The defendant requests that all evidence seized from and through the course of his arrest be excluded. First, the seriousness of the Charter-infringing conduct must not be understated. The police were on an active investigation involving surveillance of a Target and the assistance of an undercover officer in contemporaneous communication with the Target. From experience the team must have known there was a possibility of arrest, and the need for resources to assist with the likely need to interpret rights to counsel, in order to ensure no delay in satisfying immediacy requirements. The police casual approach was exacerbated by the booking Sergeant’s perfunctory steering of the defendant to duty counsel.
[25] The breaches were very serious and the police action displays a reckless disregard for the Charter. The defence suggests this case illustrates what is seemingly a systemic problem with the York Region Police.
[26] Secondly, the impact on the Charter-protected interest of Mr. Jian Chen is not technical or minor. The detention without rights provided, for an hour and nine minutes, is significant. An arrestee is vulnerable and requires counsel not just for liberty but as a lifeline to the outside world.
[27] Thirdly, the public would be outraged to learn that the police have a non-compliant approach. The negative impact would effect the public’s confidence in the administration of justice and the rule of law.
C. Section 24(1) Remedy
[28] The Court should consider a stay of proceedings or in the alternative the exclusion of evidence against the defendant. The integrity of the justice system, access to justice and trial fairness would be negatively affected if the Court fails to impose a stay of proceedings. Canada prides itself on being a diverse and multicultural nation and the breaches of Jian’s rights are troubling. He or others who do not speak English should not be afforded a lesser protection under the Charter. Should the Court not view this as the clearest of cases, s. 24(1) provides jurisdiction that is flexible and responsive for the Court to exclude evidence.
II. The Crown
A. Section 10(a) and Section 10(b) of the Charter
[29] There were no breaches of Mr. Jian Chen’s rights. Upon his arrest, an officer immediately read the defendant his rights to counsel. The officer quickly recognized that there was a language barrier. The officer requested a Cantonese-speaking officer attend. There was a delay in the delivery of the rights to counsel as a result of multiple arrests each requiring the assistance of P.C. Tong, a Cantonese/Mandarin speaking officer on duty. This was an unforeseen and dynamic situation justifiable in the circumstances as rights to counsel were indeed provided in the defendant’s chosen language as soon as it was feasible to do so. Additionally, Mr. Jian Chen was not steered toward duty counsel.
B. Section 24(2) Remedy
[30] The trafficking is wholly disconnected from any alleged breach. Mr. Chen was arrested after the traffic and no evidence was obtained or attempted to be obtained subsequent to the arrest. If the Court were to find a Charter breach, the breach itself is technical in nature given the dynamics at play. The police displayed no bad faith and the public interest in a case alleging trafficking of ketamine in a public place being determined on its merits is highly important. The evidence should be included.
C. Section 24(1) Remedy
[31] A stay of proceedings is a drastic remedy. Here the test in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 is not met. The alleged breach does not affect fair trial rights nor affect trial fairness. Similarly, the residual category is not engaged. If a remedy is to be considered by the Court, then the flexible approach taken should limit the remedy to a possible sentence reduction should the defendant be found guilty.
Charter Analysis
[32] “Everyone has the right on arrest or detention to be informed promptly of the reason therefor” (s. 10(a) Charter). This informational component does not engage magical words, but simply requires sufficient information to properly instruct counsel. An individual who is detained or arrested is at the mercy of the state (see R. v. Nguyen, 2008 ONCA 49, at para. 21).
[33] Section 10(b) of the Charter states, “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
[34] This right is triggered at the commencement of an individual’s detention (see R. v. Suberu, 2009 SCC 33, 2009 2 S.C.R. 460). This informational component must be fulfilled immediately subject to “concerns for officer or public safety, or limitations prescribed by law and justified under s. 1 of the Charter.”
[35] The significance of the interplay is observed in Nguyen (supra) at para 20:
“[W]hile the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way.”
[36] In Suberu the key issue before the Supreme Court was whether the words “without delay” permitted a brief interlude between the detention and the conveyance of her right to counsel. The Supreme Court held “without delay” to mean “immediate” as this was consistent with its purpose to have access to a lawyer in situations where an individual experiences significant deprivation of liberty on detention or arrest leaving the individual vulnerable and in a position of jeopardy. This right is to assist detainees with the ability or path to regain their liberty and to protect against the risk of involuntary self incrimination.
[37] Further, the “immediate” is not necessarily or always synonymous with instantaneously. The facts require a lens of context recalling safety concerns, legal limitations and/or justification under s. 1 of the Charter.
[38] Once a detainee has requested to speak to counsel it is well settled that “the police are obliged to ‘hold off’ from attempting to elicit any incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel” (see R. v. Prosper, 1994 SCC 65, [1994] 3 S.C.R. 236 at p. 269). In R. v. Ross, 1989 SCC 134, [1989], 1 S.C.R. 3 at p. 11, the Court confirmed detainees have the right to choose their counsel and they are not expected to choose another lawyer if the chosen lawyer is available within a reasonable time. Although duty counsel may be readily available, this cannot be used as a means to “trump a detainee’s right to counsel of choice” (see R. v. Kumarasamy, 2002 O.J. No. 303 at para. 21).
[39] Jian Chen was arrested at 8:37 p.m. on June 26, 2020. Immediately, he was informed that he was being arrested for trafficking and after moving Jian out of his vehicle to a sidewalk area for safety, Detective Constable Hamburg read Jian his rights to counsel. It is the defendant’s response of “No English, no English” in my view that crystalized that there was a language barrier and concern that not only did he not understand his 10(b) rights but also his 10(a) rights. The team of officers were aware that the undercover’s communication with the Target was in another language, however for D.C. Hamburg he experienced compliance from the defendant once the officers were at his window; including Jian passing the vehicle’s keys and following the request to exit the vehicle and to move towards the sidewalk. The officer I find acted based on Jian Chen’s response appropriately to reading the defendant’s rights to counsel. Again, it is at the point the rights are being read that it is realized an alternative needs to be had and the officers acted in a way which would be appropriate. The officer called for an officer to attend for both translation and transport. Five District, as the evidence disclosed, has a diverse population and the police force is reflective of their community. On each shift there is an officer who is fluent in both Mandarin and Cantonese. Requesting the officer to attend to help with translation, given the believed availability of an officer, as well as Five District being in close proximity and there was the underlying need for a transport officer was done to ensure best practices.
[40] However, this was a compliant plan until it was not. The transporting officer sent could not assist with translation. This in itself would delay rights, and the delay was further exacerbated as the vehicle did not have its stock of police property bags.
[41] The delay continued after the transport of the defendant as he waited for an extended period in the “sally port” area prior to eventually being brought into the booking hall and speaking to P.C. Tong in Mandarin.
[42] The one hour and nine minutes of delay did not occur in a vacuum. The other arrests, which were unforeseen, created a unique circumstance adding to the delay as each of the four other individuals arrested by the drug team all required the assistance of P.C. Tong for rights and booking. Three of those individuals arrived at Five District in advance of Jian Chen.
[43] In 2020 the police had at their disposal an interpreter telephone line that they could call and could be utilized as a means to ensure rights to counsel are provided as required. In fact, the members of the team that arrested the Target used this to ensure Charter compliance. In the evidence before me, I also was made aware that the Google Translate technology was known to the police. I do accept that both the interpreter line and Google Translate were new resources known to some police officers and they had not yet become widely known. I cannot say that had the arrest occurred today that I would not expect officers in complex and unexpected situations to utilize these now well-known and easy to navigate services to ensure complying immediately with a detainee’s s. 10(a) and s. 10(b) Charter rights.
[44] The facts involving the providing of 10(a) and 10(b) rights in this case are uniquely context driven. The events of June 26, 2020 display a series of remote events which I find were not foreseeable. The core objective for the targeted drug investigation was to attempt to arrange a sample buy while observations were placed on a single suspect (and not Jian Chen). Given the situation and its array of dynamics, I find that a short delay for use of a translation officer, or a short delay to transport to a district to facilitate translation, or the use at the roadside of an interpreter’s line or Google Translate would have complied with informational rights. However, the fact that no officer on the evidence before me accepted a lead role in supervising this team of officers, guiding them with the simple use of radio communication to ensure that all detainees that evening, once it became apparent and obvious there might be a language issue or barrier in the officers’ obligation to provide 10(a) and 10(b) rights, in my view assist me in coming to the conclusion that Mr. Jian Chen’s 10(a) and 10(b) informational rights were breached.
[45] Additionally, and notwithstanding the backlog in processing the individuals arrested and requiring information, the booking Sergeant should have also assisted. He was aware of the incoming detainees and instead of undertaking a linear role, which I am sure was stressful and possibly administratively challenging, he could have, given his role, as I understand it, done more, including getting phones connected to the translation line to the detainees while they waited so that officers at a minimum could offer them rights even if there was a short subsequent delay to exercise those rights in a private setting.
[46] The backlog of prisoners and the delay in the booking process can never abrogate an individual’s right to counsel of choice. P.C. Tong was wrong to respond to Jian Chen, when Jian indicated he had an immigration lawyer, that he needed a criminal lawyer. This shut down an opportunity to find counsel of choice. This information should have been shared and considered by the booking Sergeant, but it was not and Jian Chen was steered, in my view, to duty counsel, violating his s. 10(b) rights. The booking Sergeant did not act with reasonable diligence.
[47] In R. v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789, Justice Stribopoulos discussed the standard:
If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. (at para. 43)
[48] In R. v. Ali, 2018 ONCJ 203, [2018] O.J. No. 1662, the Court succinctly stated the following, which I adopt contextually. Justice Burstein said, at para. 59:
59 Notwithstanding my concerns about how best to phrase the legal test, I fully agree with the proposition that when the police choose to maintain control over the tools necessary for a detainee to exercise their s. 10(b) rights, the police thereby assume constitutional responsibility for using those tools in the same manner as any reasonable detainee facing an urgent need to contact counsel. In my view, the issue of whether the police discharged their duty to facilitate contact with a detainee’s counsel of choice should be determined by what a reasonable detainee would likely have done to contact counsel had the police provided them with the tools for doing so. That is exactly how Stribopoulos J. approached his assessment of the constitutional adequacy of the police efforts to contact counsel of choice in Maciel 28:
…[W]here the police have assumed the responsibility to contact counsel of choice, I think it sensible to outline the sort of steps that should be undertaken to obtain counsel’s contact details in order to satisfy the reasonable diligence standard. In my view, common sense suggests that at a minimum this should include:
- Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;
- Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer’s number stored on such a device;
- Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;
- Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada’s Paralegal and Lawyer Directory.
- Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).
In my view, in this day and age, these are the sorts of very basic steps that any reasonably diligent individual who was attempting to contact a lawyer would undertake. These are entirely in keeping with the Supreme Court’s direction that the police are required to take proactive steps to turn the right to counsel into access to counsel…[Emphasis added.]
In deciding what efforts are “reasonable”, a court must not lose sight of the fact that the methods available today for locating counsel of choice are undoubtedly different today than what was available to a detainee in the past. Accordingly, the standard of care required of the police today must not be defined by what may have seemed reasonable ten years ago.
[49] The booking Sergeant should have made fulsome inquiries of what was being said to P.C. Tong. Had that occurred, knowledge of the existence of the immigration lawyer and the proper inference that access of contact information within Jian Chen’s cell phone could have been easily obtained through controlled access of Jian’s phone without any fear of losing potential evidence. The right to counsel of choice rests fully with the defendant and not in some false belief that counsel of choice is restricted to a criminal lawyer.
Section 24(2) of the Charter
[50] As I have found a breach of the defendant’s s. 10(a) and s. 10(b) rights the applicant bears the onus of establishing on a balance of probabilities that the evidence sought to be excluded would bring the administration of justice into disrepute.
[51] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada set out an analysis comprised of three lines of inquiry. The analysis is on the overall generally held belief in the administration of justice and the public’s confidence.
[52] The first line of inquiry addresses the seriousness of the state infringing conduct. I note the Court’s guidance at paras. 74 and 75:
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 SCC 89, [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 SCC 109, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 SCC 55, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[53] In my finding of a breach of both s. 10(a) and s. 10(b) the police failed to provide Jian Chen both his informational and implementational rights. The defendant was without understanding what he was charged with or his ability to seek a ‘lifeline’ for over one hour and nine minutes.
[54] The facts though need to be placed in context. D.C. Hamburg tried to immediately provide rights, only upon doing so he discovered a language barrier restricting his ability to dispense his duty. He acted diligently in my view in that time frame. He sought a solution to have an officer attend to provide 10(a) and 10(b) Charter rights so that they could be understood by the defendant. Five District have an officer on each platoon who can speak Mandarin and/or Cantonese. Other alternatives to access interpretation, such as an interpreter line or an available internet tool, were available, however in 2020 were not well-known nor frequently employed. This, together with the myriad of unforeseen arrests that came out of a single investigation over an extremely short period of time make this not a case where, in my view, the police failed or neglected to make contingencies for a takedown of multiple suspects as part of a project investigation.
[55] I also look at the actions of the booking Sergeant in light of the arrest date being approximately three months into lockdowns due to the onset of the Covid-19 world-wide pandemic. The Sergeant should have known better to both expedite translation for the defendant but to also take appropriate steps to access counsel of choice. His choice to steer Jian Chen, I infer, was not out of bad faith but his need to manage efficiently those coming into a type of congregate setting while attempting to keep individuals apart. My finding would be skewed if not applying a lens of common sense as to what was occurring not only in the regional community but also world-wide. As a result, my findings do not equate to a finding of bad faith. No officer utilized the breaches in any manner to obtain any further evidence, admissions or a statement from the defendant. In my view this line of inquiry favours inclusion of the impugned evidence.
[56] The second line of inquiry assesses the violation’s impact on the defendant’s Charter-protected interest. This favours exclusion.
[57] Jian Chen was entitled upon detention to be informed of his 10(a) and 10(b) rights. He was entitled to obtain advice and entitled to be provided a reasonable opportunity to access his own lawyer for that legal advice. This is simply fundamental.
[58] The last line of inquiry assesses society’s interest in the adjudication of matters on their merit. In this line, I ask whether vindication of a Charter violation exacts too great of a toll on the truth-seeking function of the trial process (see R. v. Kitaitchik (2002), 2002 ONCA 45000, 166 C.C.C. (3d) 14 (Ont. C.A.) at para. 47) and in my view it would. This line of inquiry tips toward inclusion.
[59] I conclude that when I balance the three lines of inquiry, and consider all the circumstances and in context, that I am satisfied that the admission of the evidence will not bring the administration of justice into disrepute.
Section 24(1) of the Charter
[60] In 1989, Justice Lamer of the Supreme Court stated that “to create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur” (see Nelles v. Ontario, 1989 SCC 77, [1989] 2 S.C.R. 170 at p. 196).
[61] In R. v. Omar, 2019 SCC 32, the Supreme Court articulated the possibility that judges should consider the availability of non-exclusionary remedies. Brown J. stated at para. 1:
…The majority adds this. It may be that consideration should be given to the availability, under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of evidence when dealing with s. 24(2), but the majority would leave this question for another day.
[62] The s. 10(a) and s. 10(b) Charter breaches, as I have found, were discreet to the facts and context. In my view they do not include a breach of s. 7 of the Charter. Nothing before me indicates any prejudice to the defendant’s right to a fair trial, nor does it assail the integrity of the justice system.
[63] The test in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 is not met on my findings for this court to grant a stay of proceedings or for the exclusion of the evidence of trafficking. The more appropriate and proportionate remedy is a sentence reduction. This mitigation adopts a flexible approach as the Supreme Court followed in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.
The Trial Proper
[64] The definition of trafficking includes sell, administer, give, transfer, transport, send or deliver.
[65] The Crown must prove beyond a reasonable doubt,
(i) the substance was a controlled substance, namely ketamine;
(ii) the defendant trafficked in ketamine;
(iii) the defendant knew the nature of the substance; and
(iv) the defendant had the intent to traffic.
[66] The evidence before me arises from the oral evidence, exhibits and admissions heard on the blended voir dire.
[67] On the record before me there exists sufficient evidence that the substance was ketamine. The substance was tested by Health Canada and found to be ketamine, which is a controlled substance.
[68] The evidence is clear and uncontested that Jian Chen was the driver of the black Audi SUV that on June 26, 2020 arrived at the Pacific Mall in Markham, stopping briefly perpendicular to the Target’s vehicle. That the Target went up to Jian Chen’s passenger side of the car and the ketamine that had been transported and delivered was transferred and given to the Target through the passenger window. The package was quickly discovered when the police stopped and arrested the Target. There was no other item in the Target’s possession but the package delivered and transferred from the defendant to the Target. There were continuous and congruous observations and I find complete continuity.
[69] The Crown must also prove beyond a reasonable doubt that Jian Chen knew the package contained ketamine and that he had the intent to traffic ketamine.
[70] From the totality of the evidence I draw the only reasonable inference available, that he was aware of the specific controlled substance and he intended to give it to the Target as part of the Target’s pre-arranged sale of one kilogram of ketamine to the undercover police officer.
[71] In coming to the conclusion, I have included the following in my consideration:
(i) The objective of the day included the undercover request to purchase a sample of ketamine from the Target.
(ii) At 7:42 p.m. the undercover requested one kilogram of ketamine from the Target. The Target agrees but needs 30 minutes. Meeting is set.
(iii) The Target is home and remains under complete and continuous surveillance. Officers observe removal of a small pouch from one of the vehicles at the Target’s residence and he leaves to attend the Pacific Mall. He is followed and is under police watch at all times.
(iv) At 8:25 p.m. the Target informs the undercover he needs five further minutes.
(v) The Target is observed to drive north of the 8:30 p.m. agreed meeting location, and at 8:29 is north of the TD Bank in a different area of the Pacific Mall. The Target parks his vehicle in a defined parking spot.
(vi) At 8:33 Jian Chen arrives and stops his vehicle in a live lane perpendicular to the Target’s vehicle.
(vii) The Target approaches Jian Chen’s vehicle and reaches at the passenger window where the package is passed to him. The Target next moves straight back to his vehicle. Jian Chen quickly leaves.
(viii) The location of this transfer is not at an identifiable municipal address or location.
(ix) The Target is arrested and the only package found resembling what was viewed contains one kilogram of ketamine.
(x) At 8:37 Jian Chen is stopped and arrested.
(xi) The one kilogram of ketamine has a significant value.
[72] Jian Chen attended in quick response to obvious communication from the Target. This deal was going to occur and occur quickly. Jian arrives and passes a package that is not sealed but in an obviously used Japanese Mochi Ice Cream box and has a large dollar value. Jian Chen stops his vehicle at the Target’s vehicle, a random location not connected to a defined address or location. The Target had said he needed a further five minutes and in the interim short wait period Jian arrives with the drugs. It is fair to conclude that he was aware of the contraband, and he purposely attended in a means of limited contact as part of a trafficking to minimize his own exposure.
[73] In my view this is the only reasonable inference and conclusion that can be drawn from the evidentiary record. Di Luca J. concisely writes in R. v. Lu, 2021 ONSC 7889 at para. 117 as follows:
Where the evidence in relation to an offence or an essential element of an offence is circumstantial, the Crown must prove that the defendant’s guilt is the only reasonable inference available, see R. v. Villaroman, 2016 SCC 33. Consideration of circumstantial evidence requires the drawing of reasonable inferences based on logic, experience and common sense. Speculation and conjecture are impermissible, but the line between speculation and reasonable inference may be, at times, difficult to draw. However, the ease of drawing the inference is not the standard. The standard is whether the inference is based in logic and reason. The analysis must be based on the totality of the evidence before the court.
[74] I have turned my mind to whether the defendant was just a hired unsuspecting delivery dupe. In my view this makes no sense given the facts itemized from which I drew my conclusions. It is not reasonable to suggest Jian Chen was simply delivering ice cream in the last week of June in the summer of 2020 to a random location in a mall where most members of the community would attend such commercial establishments to purchase like items.
[75] Jian Chen was aware the substance was ketamine and chose to traffic. In my view his intention was clear. The defendant not only trafficked, but had knowledge and control, and dominance over the ketamine when he trafficked.
[76] The Crown has proven the charge beyond a reasonable doubt and a conviction will be registered on the one count of trafficking.
Released: April 16, 2025
Signed: Justice Paul M. Cooper