Her Majesty the Queen v. Soon Fat Liew and Wen Tung Yu, 2012 ONSC 1826

COURT FILE NO.: 1-611646

DATE: 20120327

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SOON FAT LIEW and WEN TUNG YU

Defendants

Sarah Egan and Jeremy Streeter, for the Crown

Robert Richardson, for the Defendant, Soon Fat Liew

Alan Gold and Vanessa Arsenault, for the Defendant, Wen Tung Yu

HEARD: January 9, 10, 11, 16, 17, 18, 19, 20 and February 13 and 15, 2012.

ruling on pre-trial motions

boswell j.

Index

Page

Introduction 2

General Overview 2

The Issues 3

The Facts 4

Analysis

A. Admissibility of Statements 13

(i) Charter Breaches 14

(ii) Voluntariness 23

B. Lawfulness of Cell Phone Search 25

(i) Reasonable Expectation of Privacy 27

(ii) Intrusion on Mr. Liew’s Privacy Interest 28

C. The Search of 18 Eden Avenue 36

D. The Return of the Seized Computers 42

Conclusions 43

INTRODUCTION:

[1] The accused each face one count of importing cocaine and one count of possession of cocaine of the purpose of trafficking. Their trial is scheduled to begin in Newmarket before a jury on April 23, 2012. This ruling addresses a number of issues raised in pre-trial motions including the admissibility of statements made to police by each of the accused following their arrests, the lawfulness of a search of Mr. Liew’s cell phone incident to his arrest and the lawfulness of a search of Mr. Yu’s personal residence in Markham, Ontario.

GENERAL OVERVIEW:

[2] On January 18, 2010, officers of the Canada Border Service Agency (“CBSA”) found more than 30 kg of cocaine hidden in a shipment of Peruvian wood destined for Markham, Ontario. The cocaine was removed and the shipment tracked by RCMP investigators. On February 4, 2010 Mr. Liew and another male were arrested in Markham as they unloaded the shipment from a tractor trailer.

[3] At the time of his arrest Mr. Liew was carrying a cell phone. The arresting officer, Constable Rod Gallop, seized the phone and immediately conducted what he called a “cursory search” of it. He checked the call history feature of the phone and wrote down the five phone numbers listed in it. One reflected a very recent call to a number that was later identified as corresponding to Mr. Yu’s cell phone.

[4] Mr. Liew was conveyed from Markham to the Milton detachment of the RCMP. During the hour long drive, Constable Gallop conversed with Mr. Liew in an effort to build up a rapport with him. About two hours after arriving in Milton, Mr. Liew was able to speak to duty counsel. Sometime later, Constable Gallop conducted a videotaped interview of Mr. Liew. The interview was conducted in the English language, without the assistance of a translator, even though Mr. Liew’s first language is not English.

[5] RCMP officers believed – for reasons explored further below – that there was a connection between the shipment of drugs and one or more occupants of a residence at 18 Eden Avenue in Markham (“18 Eden”). On February 26, 2010, they obtained a warrant to search 18 Eden. Featured prominently in the Information to Obtain the warrant (the “ITO”) were two elements: (1) the belief of investigators that Mr. Yu’s aunt, Wendy Yu, resided at 18 Eden. She was the contact person listed on the customs documentation connected to the Peruvian wood shipment; and (2) the call between Mr. Liew’s phone and Mr. Yu’s phone that took place while Mr. Liew was unloading the contents of the shipment on February 4, 2010. The warrant was executed by RCMP officers on March 1, 2010. A number of items were seized from the home, including two computers. Mr. Yu was arrested at the scene. He was advised of the reason for his arrest, read his right to counsel and cautioned. He was then asked what his cell phone number was and where Wendy Yu could be found. He was conveyed from Markham to the Milton detachment of the RCMP. Four hours after his arrest he was put in touch with a Cantonese speaking duty counsel. A videotaped statement was subsequently obtained from Mr. Yu by Constable Gallop who again conducted the interview in English, without the assistance of a translator, even though Mr. Yu’s first language is not English.

THE ISSUES:

[6] The issues raised by the applications before the court may be sorted into four groups. Within each group, specific questions arise for determination:

A. The admissibility of the statements of both Mr. Liew and Mr. Yu is in issue. As a prerequisite to admissibility, the Crown must establish, beyond a reasonable doubt, that the statements were made voluntarily. Intertwined with the matter of voluntariness, however, are numerous alleged breaches of the accused’s Charter protected right to counsel. The Court is asked to decide the following:

(i) Has either accused established, on a balance of probabilities, that his s. 10(b) right to counsel was breached?

(ii) Has the Crown established the voluntariness of the statement of each accused, considering all the surrounding circumstances, including any Charter breaches?

(iii) Even if the voluntariness of the statements is established, should they be excluded under s. 24(2) of the Charter?

B. The lawfulness of the search of Mr. Liew’s cell phone is in issue. The Court must decide:

(i) Did Mr. Liew have a reasonable expectation of privacy in the contents of his cell phone?

(ii) Was the “cursory search” conducted by Constable Gallop an unreasonable intrusion on Mr. Liew’s expectation of privacy? In answering this question, the Court must address the limits of a search of a cell phone incident to a lawful arrest.

C. The lawfulness of the search of 18 Eden is contested by Mr. Yu. In particular, Mr. Yu asserts that the police did not have reasonable and probable grounds to obtain the warrant authorizing the search. His challenge involves a review of the ITO edited in light of evidence adduced during the voir dire, to determine if it contains sufficient evidence upon which the issuing justice could have found that there were reasonable grounds to believe that evidence of an offence under the CDSA could be found in 18 Eden.

D. Finally, Mr. Yu seeks the return of computers seized from 18 Eden, on the basis that the disclosure of the contents of the computers provided by the RCMP has been inadequate. This is a disclosure application and the question is whether the electronic disclosure provided by the Crown is reasonably accessible to the Defence.

[7] A more detailed review of the facts and circumstances of this case will be necessary in order to fully appreciate the issues raised by the applications. Evidence was introduced during the hearing of the applications by way of a blended voir dire that took place over eight days in January and February 2012, followed by two days of legal argument. Oral testimony was adduced through seven RCMP officers involved in the investigation. In addition, and on consent, evidence from the preliminary inquiry is relied upon. What follows is a summary, in chronological form, of the essential evidence adduced during the voir dire.

THE FACTS:

The Investigative Team

[8] Seven RCMP officers testified during the voir dire. Each was involved in the investigation in one form or another. All worked, at the relevant times, out of the Toronto West detachment located in Milton, Ontario. They were:

• Corporal Blair Fuhrman. He was the lead investigator. He attended the controlled delivery on February 4, 2010 and arrested a suspect, Mr. La, who is not presently before the Court. He was also in charge of the execution of the search warrant at 18 Eden and he arrested Mr. Yu there;

• Constable Rod Gallop. He arrested Mr. Liew in Markham and transported him to the Milton detachment. He took videotaped statements from both Mr. Liew and Mr. Yu;

• Constable Eltion Cuko. He assisted Constable Gallop with the arrest and transportation of Mr. Liew;

• Constable James De Dieu. He was present at the controlled delivery on February 4, 2010. He assisted in transporting Mr. La from Markham to Milton. He placed a call to duty counsel for Mr. La and, possibly, for Mr. Liew. He also assisted with the search at 18 Eden on March 1, 2010. He and Constable Cobey arrested Mr. Yu[^1] and transported him to Milton;

• Constable Sashin Verma. He assisted at both the controlled delivery on February 4, 2010 and the execution of the search warrant at 18 Eden on March 1, 2010. More significantly, perhaps, he was credited, in the ITO, with identifying Wendy Yu as the driver of an SUV observed by police leaving 18 Eden on February 24, 2010;

• Constable Jean-Sebastien Renaud. He acted primarily as an exhibits officer in the course of the investigation. He conducted a warrantless full search of Mr. Liew’s cell phone on February 23, 2010; and,

• Constable David Cobey. He assisted at the controlled delivery on February 4, 2010 and with the execution of the search warrant on March 1, 2010. He assisted Constable De Dieu in transporting Mr. Yu from Markham to Milton. Most significantly, however, he prepared and swore the ITO.

The Controlled Delivery

[9] On January 18, 2010 CBSA officers, at Montreal’s Marine and Rail Services, found some 31 kg of cocaine in a shipment of Peruvian wood destined for the Sunny Trading Company at 17 West Beaver Creek Road in Markham, Ontario. The RCMP was contacted. The cocaine was removed from the shipment by RCMP officers and replaced with a benign substance. The shipment was permitted to continue on to its destination, with RCMP officers tracking it all the way. Initially it was delivered to a warehouse in Mississauga, then re-routed to Unit 4, 290 Yorktech Drive in Markham on February 4, 2010. The Yorktech Drive address is a commercial complex with a number of different units, but curiously, no Unit 4.

[10] The delivery was to be made at 1:00 p.m. RCMP officers watched and waited. At 11:40 a.m., an officer noted that a silver minivan registered to Mr. Yu was parked at the rear of 290 Yorktech Drive. This is not an independently sinister fact. Mr. Yu operates a business from units 6 and 7 at that address. At 12:30 p.m. officers noted a black Nissan Pathfinder arrive and park near 290 Yorktech. Inside were two male occupants. Shortly after 1:15 p.m., the transport truck bearing the subject shipment arrived. The two male occupants exited the Nissan and directed the driver of the transport where to park. The two males removed bags from the Nissan and entered the transport trailer. As they began to unload the benign substance from the trailer, RCMP officers swooped in and arrested them. They were quickly identified as Jim La and Soo Fat Liew.

The Arrest of Mr. Liew

[11] Constable Rod Gallop arrested Mr. Liew at gunpoint at approximately 2:12 p.m. as he was coming out of the back of the trailer. Constable Gallop testified that he told Mr. Liew he was under arrest for the importation of cocaine. He asked Mr. Liew if he understood and Mr. Liew said no. He told Mr. Liew that someone at the police station would be able to explain it in his language.

[12] He gave Mr. Liew his right to counsel, initially from memory and then by reading from his notebook. Although the written right to counsel as contained in his notebook refers to the availability of free advice from Legal Aid duty counsel, he did not give Mr. Liew the 1-800 number for Legal Aid at the time of his arrest. He asked if Mr. Liew wanted to call a lawyer “now” and Mr. Liew replied that he did. Nevertheless, a phone call was not arranged for Mr. Liew to speak to duty counsel until he was at the RCMP station in Milton.

[13] Officer Gallop testified that he conducted two searches of Mr. Liew at the arrest scene. The first was a quick pat down for officer safety, which occurred not far from the trailer. Shortly thereafter, when Mr. Liew was secured in the police cruiser, he had Mr. Liew empty his pockets. He found a wallet, miscellaneous papers and a cell phone. He seized all items. He said he seized the cell phone because he believed that it may contain evidence of the offence.

The Cell Phone Search

[14] The cell phone was a Sony Erikson slide phone, meaning it had a slide out full keyboard. Officer Gallop was not sure if it was a smart phone. He said it was not an iPhone or Blackberry, but it was more than just an “over-the-counter flip phone with basic communication features only.” Officer Gallop conducted what he called a “cursory search” of the phone. He said there were two principal reasons for his search. First, he wanted to know about other possible suspects - people who might be coming to meet up with Mr. La and Mr. Liew - or people whom they were going to deliver the drugs to. Second, he didn’t want evidence to be lost. He said it’s his understanding that someone can send a “kill signal” remotely to a phone to wipe out its contents. He did not elaborate on how that might be done, or how he came to have the understanding that it could be.

[15] The “cursory” search conducted by Constable Gallop involved opening the phone and looking at it. He said the writing on the screen was “Chinese”, so he could not read what the options were. He noted red and green buttons, which he assumed were the “send” and “end” features. He said he “played with the phone to try to get into it.” His intention was to find “immediate phone calls and immediate texts.” He pushed the send button and a list of recent calls appeared. There were five numbers displayed and he made notes of the times, dates and numbers called. Some of the numbers had names associated with them and he made note of that too.

[16] The most recent call indicated in the cell phone was at 2:02 p.m. on February 4, 2010, to someone named “Dono”, at the number 416-738-8172. The second most recent call was at 1:25 p.m. This time it was a call received from “Dono”. Officer Gallop believed it was from the same number as the outgoing call to Dono, but he didn’t make a note of it in his notebook.

[17] Officer Gallop then attempted to find text messages, but the menu buttons on the phone were in Chinese characters and he didn’t know what they said. He pushed a number of buttons. He became nervous because he didn’t want to destroy evidence by pushing the wrong button so he eventually stopped his search. The search lasted anywhere from five to seven minutes.

The Implementation of Mr. Liew’s Right to Counsel

[18] Officer Gallop left 290 Yorktech with Mr. Liew at approximately 2:22 p.m. He was accompanied by Officer Cuko. They arrived in Milton at about 3:27 p.m. During the hour long drive, Officer Gallop engaged in conversation with Mr. Liew, none of which was recorded. He said he knew he would be talking to Mr. Liew later and so he used this opportunity to form some kind of a bond with him.

[19] Constable Gallop testified that Mr. Liew began to ask him questions about why he had been arrested. He said he advised Mr. Liew that he was under arrest for the importation of drugs. Mr. Liew said, “drugs?” He said “yes, in this case cocaine. Cocaine is a white powder people sometimes snort up their nose.” Mr. Liew responded, “this is bad”, which Constable Gallop understood to mean that Mr. Liew knew what the drugs were. He noted that Mr. Liew had “a look of defeat on his face”. Mr. Liew went on to talk about his personal life and a refugee hearing he was having the next week. Constable Gallop emphasized that he did not ask Mr. Liew questions about the offence. When Liew raised issues about the offence, Constable Gallop told him that he should wait until he talked to his lawyer. Mr. Liew respondend, “I understand”.

[20] Both Constable Gallop and Constable Cuko formed the opinion during the car ride to Milton that Mr. Liew’s English language skills were sufficient to understand what they were talking about. Constable Cuko testified that he did not have any conversation with Mr. Liew during the car ride to Milton, but confirmed that Constable Gallop did. He did not make notes of the conversation save to record that Mr. Liew indicated that he understood the bricks removed from the trailer contained cocaine.

[21] When they arrived at the station, Mr. Liew was taken in a side door, searched by Officer Cuko and immediately lodged in a cell. It is not at all clear in the evidence presented during the voir dire, how duty counsel came to be contacted for Mr. Liew. Constable Cuko said Constable De Dieu gave him the contact information for duty counsel, but he could not recall placing the call. He could not recall telling Mr. Liew that duty counsel would be, or had been, contacted for him. It appears, however, according to Constable De Dieu’s evidence, that Mr. Liew spoke to duty counsel sometime between about 4:50 p.m. and 5:10 p.m., almost three hours after he was arrested. Constable De Dieu was not clear about who Mr. Liew spoke to. It is possible that he spoke with an English-speaking duty counsel, Mr. Burka, first and then was referred to another duty counsel with Cantonese or Mandarin language skills. Mr. Liew told Constable Gallop, however, that he only spoke with one lawyer. Constable De Deiu’s notes have a reference to a Mr. Chan, but Constable De Dieu could not recall specifically placing a call to duty counsel for Mr. Liew. He did not know whether Mr. Chan spoke any of the languages Mr. Liew is fluent in, namely Malay, Mandarin or Cantonese. His usual practice is to ask a prisoner, after he has spoken with duty counsel, whether he is satisfied with the information he obtained. But he could not recall doing so on this occasion. In the result, it was never established, during the voir dire, that Mr. Liew had an opportunity to speak to counsel in his own language.

The Interview of Mr. Liew

[22] Constable Gallop began an interview with Mr. Liew at 6:50 p.m. At least that’s when the recorded part of the interview starts. It is clear from the opening question, “Okay, so where would you go if you could?”, that the officer and the prisoner have been engaged in some discussion before they enter the interview room. The recorded interview was conducted in the English language, without an interpreter. There is no dispute that an interpreter could have been arranged in the almost five hours since Mr. Liew’s arrest. Constable Gallop, in fact, told Mr. Liew at the time of his arrest that someone at the station would explain things to him in his own language. He did not make any such arrangements, however, because he decided, based on his discussion with Mr. Liew during the drive to Milton, that Mr. Liew’s English language proficiency was adequate without assistance.

[23] The extent to which Mr. Liew understood Constable Gallop during his interview is debatable. At times he appears to be engaged in the conversation and aware of its significance. At other times, not so much. In my view, it is clear that he should have had an interpreter. In fact, the need for an interpreter should have been patently obvious to Constable Gallop based on the following exchange that took place at the outset of the interview:

Gallop: …you’re under arrest in an investigation for importing cocaine, okay?

Liew: Mm-Hmm.

Gallop: Okay, and that doesn’t mean you’re um…convicted or that you’re guilty or that you’re admitting it that you’ve done it, okay, but that just means that’s what you’ve been arrested for. Okay, do you understand what that means?

Liew: Half-half.

Gallop: Half and half? Okay…

Liew: Uh-huh.

Gallop: …tell me what you…tell me what you understand.

Liew: I understand I under arrest like cocaine.

Gallop: Yeah.

Liew: But before that I also don’t know what is cocaine. Okay, after that inside the car you explain with me drug.

Gallop: Yeah.

Liew: Yeah. But I…

Gallop: Oh, Okay.

Liew: …that’s what I____with that…

Gallop: Yeah. But right now…

Liew: Right now,

Gallop: …you understand what’s going on, right? You understand that there was drugs that we’re investigating and that you’re arrested, because of our investigation into those drugs. Do you understand that?

Liew: But so far I never see the thing.

Gallop: Okay, I’m not…I’m not…I just want you to understand that that’s why you’re here and that’s why you got arrested.

Liew: Okay.

Gallop: Okay, so do you understand that part?

Liew: Now I understand.

Gallop: And saying you understand doesn’t mean that you’re saying that yes, you did it. It just means that that’s why you’re here.

Liew: No I understand why I here.

Gallop: You do understand, can you tell me…tell me what it is that…I just wanna make sure you understand, right?

Liew: Okay.

Gallop: So what is it that in your mind what do you think is happened? For as far as why you’re here right now?

Liew: No, can I use Chinese?____I…I…

Gallop: Ah…you can use Chinese, but I’m not gonna understand it, ‘cause I don’t speak any. (Chuckles)

Liew: Ah…

Gallop: I think I understand.

Liew: I think I understand, but so far, I scare I misunderstanding.

[24] During the course of the interview, Mr. Liew described his role in unloading the transport trailer. He indicated that his role was very limited. He said he was just hired at $11/hr to help unload some wood. Constable Gallop expressed disbelief in Mr. Liew’s story. He falsely suggested to Mr. Liew that the RCMP had video from inside the tractor trailer and audio from telephone intercepts that proved Mr. Liew was more involved than he let on. Eventually, Mr. Liew indicated that he had helped put packages of what he thought was “special wood” into bags that Mr. La had brought. He then passed the bags out of the trailer to Mr. La.

[25] The interview ended at 8:50 p.m.

The Subsequent Search of the Cell Phone

[26] Constable Renaud took control of Mr. Liew’s cell phone on February 4, 2010 shortly after Mr. Liew arrived at the Milton detachment. He placed the phone, and other personal items belonging to Mr. Liew, in an exhibits vault. On February 23, 2010, at about 9:00 a.m., he retrieved the phone and took it back to his desk for analysis. He asked another officer, Constable Ting, to assist him by changing the language on the phone to English. He also received some translation assistance from two RCMP employees who work at the Milton station. He spent the whole day with the phone conducting what he called a “fairly extensive search” of phone numbers and text messages found within it. The RCMP had not yet sought a warrant to search the phone.

The Search Warrant for 18 Eden

[27] The warrant to search 18 Eden was obtained on February 26, 2010. It was issued on the strength of an ITO sworn by Constable Cobey on that same date. To obtain the warrant it was, of course, necessary for Officer Cobey to satisfy the issuing Justice that he had reasonable grounds to believe an offence had been committed under the CDSA and that evidence of that offence could be found at 18 Eden. Those reasonable and probable grounds largely rested on the belief that both Donald Yu and Wendy Yu resided at 18 Eden. The evidence connecting each of Donald Yu and Wendy Yu to the offence and to the residence at 18 Eden was set out in the ITO. I think a fair summary of Mr. Yu’s position is that the evidence connecting Wendy Yu to the offence was strong, but the evidence connecting her to 18 Eden was very weak. On the other hand, the evidence connecting Mr. Yu to 18 Eden was strong, while the evidence otherwise connecting him to the offence was weak.

[28] The evidence tying Wendy Yu to the offence was indeed compelling. She was listed as a contact person for the wood shipment intercepted by CBSA officers in January 2010. Her Social Insurance Number was given to Hecny Transportation – the company Sunny Trading Company hired to deliver the shipment. Wendy Yu was also the named contact on another wood shipment intercepted by the United States Boarder Patrol in September 2009, which contained 142 kg of cocaine.

[29] The evidence connecting Donald Yu to the offence was much less compelling. His van was spotted near the delivery location of the impugned shipment. As I indicated, this fact is not independently sinister, since Donald Yu operates a business from units 6 and 7 at 290 Yorktech. In addition, there were calls between Mr. Liew’s cell phone and Mr. Yu’s cell phone at or around the time the trailer was being unloaded. Mr. Liew contends, of course, that the search of his cell phone was unconstitutional. In turn, Mr. Yu asserts that unconstitutionally obtained evidence should be excised from the ITO.

[30] The evidence connecting Mr. Yu to 18 Eden was relatively clear. He is a registered owner of the property and he was seen coming and going from the residence during police surveillance. There is no dispute that Mr. Yu lived at 18 Eden at all material times.

[31] The evidence connecting Wendy Yu to 18 Eden is very much contested and so I will review it in detail. Officer Cobey expressed his belief that Wendy Yu lives at 18 Eden at paragraph 3 of the ITO. He based that belief on the following:

(i) A passport application filed by Wendy Yu with Passport Canada listed her driver’s license as a supporting piece of identification. A search of the Ministry of Transportation’s records revealed that her license was registered to “Kiu-Sang Leung”, a pseudonym of Wendy Yu, with an address of 18 Eden Avenue, Markham;

(ii) On February 24, 2010, RCMP officers were conducting surveillance on 18 Eden. At 12:09 p.m., Constable Cuko saw an unknown female depart the residence in a silver Mercedes SUV. Constable Verma tailed the SUV and identified the female driver as Wendy Yu.

[32] Mr. Yu’s counsel vigorously challenged the evidence relating to Wendy Yu’s purported address. He established the following through cross-examination of Constable Cobey:

(i) On February 2, 2010, another officer searched all the usual sources the police would normally check to find someone’s address and no address for Wendy Yu could be located. Constable Cobey agreed the police were having trouble finding Wendy Yu’s address;

(ii) The passport application for Wendy Yu, as relied upon by Constable Cobey in the ITO, was dated February 28, 2006. It did refer to Wendy Yu’s driver’s license, but it also contained an address for Wendy Yu as 88 Elm Street in Ottawa;

(iii) Constable Cobey’s notes of February 22, 2010 indicate that he had a Social Insurance Number for Wendy Yu, with an address of 13 Military Trail in Toronto;

(iv) Constable Cuko was conducting surveillance evidence at 18 Eden on February 24, 2010. He saw a woman leave the residence in a Mercedes SUV, but he did not get a good look at her face and he could not identify her;

(v) Constable Verma picked up the SUV and followed it for some time after it left 18 Eden. The officer’s notes do not reflect what streets he was on. He testified that he remembered pulling up beside the SUV and having a view of the person driving, though none of that is in his notes either. He remembered looking into the driver’s side window and identifying the driver as Wendy Yu. But he could not remember any of the surrounding circumstances – where he was or what the traffic conditions were. His identification was based on having seen one photo of Wendy Yu provided by Corporal Fuhrman;

(vi) The contact person for Sunny Trading Company was noted on customs documents as Wendy Yu. The listed phone number was 416-829-7896. This was a pre-paid Rogers Communications account registered to “John Chang” at 453 Broadview Avenue in Toronto; and,

(vii) The address for Sunny Trading Company was 174 West Beaver Creek Road, Markham and the phone number associated with that company was also 416-829-7896.

[33] RCMP officers conducted further surveillance of 18 Eden on February 25, 2010. Again, they tailed the SUV leaving the residence and they followed it to 290 Yorktech Drive where they photographed two women leaving the vehicle, neither of whom was Wendy Yu. The information obtained during the February 25surveillance suggests it is very likely that the woman observed by Constable Verma in the SUV on February 24, was, in fact, Mr. Yu’s wife and not Wendy Yu. None of the information set out in subparagraphs (i) to (v) in the preceding paragraph was included in the ITO.

The Arrest of Mr. Yu

[34] The warrant to search 18 Eden was executed March 1, 2010. Corporal Fuhrman was the officer in charge of the search. At about 11:15 a.m. on March 1, 2010 he knocked on the screen door at the front of the house and opened it. The inside door was open. He walked in and found Mr. Yu in the front foyer, with a cell phone in his hand. He seized the cell phone and directed Mr. Yu to sit on the couch in the living room. He arrested Mr. Yu. He gave him his right to counsel and caution in his own words and asked him if he wished to call a lawyer now. He did not give Mr. Yu the toll free number for Legal Aid duty counsel. Mr. Yu’s son sat beside him on the couch and assisted with translation. Mr. Yu said he did wish to call a lawyer, but a call to counsel was not arranged at 18 Eden. Corporal Fuhrman said it was impractical to arrange a call at 18 Eden because there were so many people in the house.

[35] Corporal Fuhrman asked Mr. Yu if the cell phone he’d had in his hand was Mr. Yu’s phone. Mr. Yu confirmed that it was. Corporal Fuhrman used the phone to call his own cell phone, so as to create a record of Mr. Yu’s phone number. He then asked Mr. Yu, “where’s Wendy”? Mr. Yu had a puzzled look on his face. He then asked Mr. Yu, “Who is Wendy”? He responded that Wendy is his aunt. Police would later learn that Wendy Yu fled the country on March 1, 2010, heading for China, via New Jersey.

[36] Custody of Mr. Yu was turned over to Constables De Dieu and Cobey. Mr. Yu was placed in the back seat of a police cruiser in the driveway of 18 Eden. Constable De Dieu re-arrested Mr. Yu and again gave him his right to counsel and caution, by reading the script on the inside cover of his notebook. He did not have the 1-800 number for Legal Aid, but told Mr. Yu he would provide that to him at the police station. He asked Mr. Yu if he would like to call counsel “now”. Mr. Yu said yes.

The Implementation of Mr. Yu’s Right to Counsel

[37] Constables De Deiu and Cobey departed 18 Eden with Mr. Yu at 11:50 a.m. and arrived at the Milton detachment at 12:35 p.m. There was no conversation with Mr. Yu on the drive to Milton. He was searched and placed into a cell. Duty counsel was contacted on his behalf at 12:45 p.m. Mr. Yu was not asked if he wished to contact a lawyer of his own choosing. At 1:20 p.m., a lawyer named Bill Pye returned the duty counsel call. Mr. Yu spoke to Mr. Pye briefly and then was placed back in his cell at 1:25 p.m.

[38] At 1:50 p.m., a phone call was received in the cells area. Corporal Fuhrman was looking for a key to a safe found during the search of 18 Eden. Constables De Dieu and Cobey attended in Mr. Yu’s cell and asked him to call his father to speak to him about the safe. Constable De Dieu loaned Mr. Yu his cell phone to make the call. Mr. Yu apparently also asked his father about a lawyer.

[39] Constable Cobey testified that at about 2:09 p.m., he spoke to Mr. Yu at the door to his cell. Mr. Yu asked him questions about a lawyer. Constable Cobey was concerned that Mr. Yu may not have understood what Mr. Pye had told him. He therefore asked Constable De Dieu to contact another duty counsel on Mr. Yu’s behalf – someone who spoke Mandarin or Cantonese. Constable De Deiu placed that call at about 2:20 p.m. and subsequently Mr. Yu had a discussion with a lawyer named Patrick Sun at about 3:00 p.m.

The Interview of Mr. Yu

[40] At 9:54 p.m. on March 1, 2010, Constable Gallop commenced an interview of Mr. Yu at the Milton station. Again, the interview was conducted in English, without the benefit of an interpreter. By this point, Mr. Yu had been in police custody for over 10 hours. Again, there is no dispute that an interpreter could have been arranged.

[41] The interview with Mr. Yu was an hour in length – about one-half the length of the one conducted with Mr. Liew. Mr. Yu repeatedly asserted his desire to speak with counsel before answering questions posed to him by Constable Gallop. Though Mr. Yu’s proficiency in the English language exceeded that of Mr. Liew, the need for an interpreter remained apparent. Indeed Mr. Yu expressed to Constable Gallop that he would feel more comfortable speaking in his own language, to which Constable Gallop replied, “there’s nothing wrong with your English.”

ANALYSIS

A. The Admissibility of the Statements of the Accused

[42] Each of the accused gave a videotaped statement to the police following his arrest. The Crown seeks a ruling as to the admissibility of the statements, though it is not clear yet whether they will form part of the Crown’s case, or whether they will be used for impeachment purposes only. In either event, as a prerequisite to admissibility, the Crown must prove that a statement made by an accused to the police was made voluntarily.

[43] The accused argue that their statements should be excluded from evidence because they were not voluntary and/or as a remedy for a number of Charter breaches. The two issues overlap. I intend to begin the analysis by reviewing the general principles of voluntariness. Then I will examine the alleged Charter breaches, and ultimately assess whether, in light of any established breaches and all other surrounding circumstances, the Crown has established the voluntariness of the statements beyond a reasonable doubt. To be clear, the alleged Charter breaches are advanced as both a stand-alone reason to exclude the statements and as a basis on which to raise a reasonable doubt about voluntariness. It was agreed, during the hearing of the applications, that any arguments about remedies under s. 24(2) of the Charter should be deferred until after the Court’s ruling on whether any breaches of the Charter have been established. It remains necessary, however, to determine at this stage whether any alleged breaches of the s. 10(b) rights of the accused undermine the voluntariness of either of their statements. I begin, therefore, with a consideration of the general principles of voluntariness.

The Principles of Voluntariness

[44] The leading case on the issue of voluntariness is Mr. Justice Iacobucci’s decision in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.). The basic idea is simple: a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. At paragraph 69 of the decision, Justice Iacobucci wrote:

Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[45] In assessing the voluntariness of a statement, the court must examine and evaluate all of the circumstances surrounding the making of the statement, including, but not limited to the following factors: threats; promises; oppression; the requirement of an operating mind; and police trickery.

[46] It is important to remember that the court must look at all the circumstances in a contextual fashion. Again, as Justice Iacobucci stated in Oickle, at para. 71:

[T]he analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule...

[47] As Mr. Justice Deschamps subsequently observed in R. v. Spencer, (2007), 2007 SCC 11, 217 C.C.C. (3d) 353 (S.C.C.), decisions in this area of the law are very fact-driven. It is necessary, therefore to look closely at the interactions between the RCMP and each of the accused prior to and during the making of the statements in issue. RCMP actions prior to the making of the statements engage the first question the Court is asked to determine in terms of the issue of voluntariness:

(i) Has either accused established, on a balance of probabilities, that his s. 10(b) right to counsel was breached?

[48] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The accused each assert multiple breaches of this right.

[49] The nature and scope of s. 10(b) rights have been the subject of significant Supreme Court jurisprudence: see, for instance, R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190; R. v. Bartle, (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289; R. v. Prosper, [1994] 2 S.C.R. 236; and R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217.

[50] Over the course of R. v. Manninen, R. v. Brydges and R. v. Bartle, former Chief Justice Lamer refined a number of duties imposed on state authorities who arrest or detain a person, in an effort to foster fair treatment of the accused person and to promote the purpose of s. 10(b). That purpose was described at para. 16 of Bartle, which I reproduce here in full, though I have removed the internal citations:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. The right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.

[51] The duties imposed on state authorities designed to foster the purpose of s. 10(b) include both informational and implementational aspects. These duties, enumerated at para. 17 of Bartle, are as follows:

(i) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(ii) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and,

(iii) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

The Alleged 10(b) Breaches

[52] Each accused asserts that his s. 10(b) rights were breached in numerous ways. The alleged breaches may be summarized as follows:

(i) Neither accused was provided with the 1-800 number for Legal Aid duty counsel at the time of his arrest. Each asserts that this was a breach of the informational duty imposed on the RCMP at the time of arrest;

(ii) Neither accused was afforded an opportunity to contact counsel at the arrest location. Each was transported to the Milton detachment of the RCMP and there was a significant delay between the time of arrest and the time that a call to duty counsel was facilitated. Each asserts that the delays were unacceptable;

(iii) Mr. Yu submits that he was not afforded an opportunity to speak to the counsel of his choice;

(iv) Mr. Liew submits that Constable Gallop began to interview him during the drive from the arrest scene in Markham to the police station in Milton. He argues that Constable Gallop failed to refrain from eliciting evidence from him, in breach of his obligation to “hold off”;

(v) Similarly, Mr. Yu says that Corporal Fuhrman elicited evidence from him at 18 Eden, before he had spoken to counsel; and

(vi) Each accused asserts that the RCMP failed to confirm, before interviewing them without the assistance of an interpreter, that they had received advice about their constitutional rights and that they had understood those rights.

[53] I will review the alleged breaches in turn.

The 1-800 Number

[54] At the time of the arrests of Mr. Liew and Mr. Yu, it was not the practice of any of the involved RCMP officers to include the 1-800 number for Legal Aid duty counsel as part of the right to counsel and caution printed on their notebooks. Consequently, Mr. Liew and Mr. Yu were not provided with the 1-800 number at the time of their arrests.

[55] Constable Gallop arrested Mr. Liew. He testified, under cross-examination, that he read the 10(b) right exactly as printed in his notebook. The 1-800 number for Legal Aid is not part of the pre-printed form so he did not immediately provide it to Mr. Liew. He said he told Mr. Liew that he could provide a phone number to get in touch with somebody. He could not recall exactly what he said, whether it was a lawyer or Legal Aid.

[56] Constable De Dieu arrested Mr. Yu. He testified that he read Mr. Yu his right to counsel and caution from the back of his notebook. He did not read the 1-800 number because he did not have it.

[57] Mr. Yu’s counsel submitted that the provision of the 1-800 number at the time of arrest is an integral part of the informational component of the s. 10(b) right. He relied on the following comments of former Chief Justice Lamer at para. 37 of R. v. Bartle, as above:

The 1-800 number, or at least the existence of a toll-free telephone number, should have been conveyed to the appellant upon his arrest at the roadside even though there were no telephones available. Indeed, the police should have explained to the appellant that, as soon as they reached the police station, he would be permitted to use a telephone for the purpose of calling a lawyer, including duty counsel which was available to give him immediate, free legal advice. It can hardly be described as an undue hardship on police to require them to provide detainees with this basic information, especially when the toll-free number is already printed on their caution cards. I am satisfied that the 1-800 number was part of the informational requirement under s. 10(b) of the Charter. I agree with counsel for the appellant that, in today's highly technological and computerized world, 1-800 numbers are simple and effective means of conveying the sense of immediacy and universal availability of legal assistance which the majority of this Court in Brydges said must be conveyed as part of the standard s. 10(b) warning in jurisdictions where such a service exists.

[58] The Crown argued, in response, that it is sufficient if the arrestee is advised of the existence of a 1-800 number that will allow immediate access to free duty counsel. In other words, the actual 1-800 number is not, itself, a critical part of the information to be provided at the time of arrest.

[59] In R. v. Davis, [1991] O.J. No. 141, the Ontario Court of Appeal, citing R.v Bartle as authority, held that it was sufficient that an arrestee be informed that free Legal Aid is available on a 24 hour basis and that a Legal Aid number will be provided upon request in the event the accused wished to call counsel immediately.

[60] A similar view was expressed by the British Columbia Court of Appeal in R. v. Lancaster, [1995] B.C.J. No. 2267, released shortly after R. v. Bartle was decided. In that case, Proudfoot J.A. held, at para. 8, that “it is not a question of whether a 1-800 number is given to the appellant that seems to be the argument, it is a question of whether sufficient information is provided for the appellant to be able to access a lawyer and that such access is available immediately.”

[61] In my view, based on the ruling in Bartle and subsequent Court of Appeal cases, it is sufficient that a detainee be advised of at least the existence of a toll-free number to access free and immediate legal advice. The provision of this information will adequately inform the accused person that s/he is able to immediately access free legal advice.

[62] In this case, the 1-800 number was not provided to either accused at the time of his arrest. Each was, however, assured that he would be provided with access to free legal advice, as that information was a part of the pre-printed forms recited by arresting officers. I am satisfied, in the circumstances, that the police complied with the informational component of the s. 10(b) rights of the accused. That said, it is a poor practice for the RCMP not to have the 1-800 number available for all accused at the time arrests are made. The Charter is now 30 years old. R. v. Bartle was decided almost 20 years ago. They’ve had more than ample time to include the number in their notebooks. Nevertheless, I am not persuaded that their shortcomings, in this instance, rise to the level of a constitutional infringement.

The Implementation of the Right to Counsel

[63] Each accused was arrested in Markham. Each was transported to Milton before being placed in contact with duty counsel. In Mr. Liew’s case, he was not able to speak with counsel until almost three hours after his arrest. In Mr. Yu’s case, he was not able to speak to duty counsel until about two hours after his arrest. He was not able to speak to duty counsel in his own language until almost four hours after his arrest. Each accused asserts that the delay in facilitating access to counsel was a breach of the implementational duties imposed on the RCMP by s. 10(b) of the Charter.

[64] Section 10(b) assures that an accused person can retain and instruct counsel without delay. The meaning of the phrase “without delay” was recently examined by the Supreme Court in R. v. Suberu, 2009 SCC 33, where the Court confirmed that the interpretation of the phrase must be consistent with the purpose of s. 10(b), as discussed in R. v. Bartle, as above. Specifically, the right is meant to assist accused persons to regain their liberty and to guard against the risk of involuntary self-incrimination. Accused persons are in a vulnerable situation immediately upon detention. Chief Justice McLachlin and Justice Charron held, therefore, that the phrase “without delay” must be interpreted as “immediately”. To ensure that the purpose of s. 10(b) is served, and subject to concerns for officer or public safety, the police must immediately inform detainees of the right to counsel as soon as the detention arises and they must immediately facilitate that right.

[65] In the circumstances of the arrests of both Mr. Liew and Mr. Yu, and taking into account any concerns about officer or public safety, I find that neither accused was provided access to counsel without delay. In my view, the delays in facilitating access to counsel were impermissible and breached the s. 10(b) rights of both accused.

[66] In the case of each accused, RCMP officers were well aware that they would be making arrests in Markham. They were well aware that they would be transporting each accused from Markham to Milton and that it was approximately a one hour drive. They knew that their suspects were, or likely were, of Asian descent. They made no attempt to arrange for a method for the accused to access counsel in a timely way. They made no attempt to arrange for Cantonese or Mandarin speaking counsel to be available.

[67] In Mr. Liew’s case, I accept that it may not have been safe, or practical, to arrange for him to contact counsel at the scene of his arrest. But that is far from the end of the inquiry. As Justice Doherty held in R. v. Devries, 2009 ONCA 477, whether the steps taken by the police to permit a detainee to contact counsel comply with the implementational requirements of s. 10(b) turns on the facts of each specific case.

[68] On the facts of this specific case, Mr. Liew’s vulnerability was particularly acute, given the combination of his difficulty with the English language and Constable Gallop’s decision to have conversation with him during the hour long car ride from Markham to Milton. Given the acutely vulnerable position the police put Mr. Liew in, I find that the delay of 3 hours in facilitating access to counsel was far from immediate and not compliant with the implementational duties of the RCMP. Quite apart from the delay caused by the car ride to Milton, there was no reasonable explanation offered as to why it took two hours to put Mr. Liew in touch with duty counsel once he was safely secured in Milton. In fact, none of the officers who testified during the voir dire could reliably say who called duty counsel for Mr. Liew and when.

[69] In Mr. Yu’s case, I am not satisfied that an arrangement could not reasonably have been made for him to speak with counsel at his home at the time of his arrest. The RCMP had been planning the execution of the warrant for some time. They should have anticipated and considered how their duties under s. 10(b) of the Charter could be discharged. None of the officers who testified persuaded me that an arrangement could not have been made to permit Mr. Yu to have some privacy in his own home, in order to speak with counsel.

[70] RCMP officers were in Mr. Yu’s home conducting a search for more than 8 hours. There was no urgency to remove Mr. Yu from the premises. There were no evident safety concerns, nor any practical reason why Mr. Yu could not have contacted counsel from his home. A detainee’s s. 10(b) right cannot be suspended simply because of the ongoing execution of a search warrant: R. v Soto, 2010 ONSC 1734. In my view, the scene at 18 Eden was under control very quickly after the RCMP arrived. There were no exigent circumstances that prevented the RCMP from affording Mr. Yu the opportunity to contact counsel from his own home.

[71] Again, quite apart from the time it took to transport Mr. Yu to Milton, a four hour delay in facilitating access with a language appropriate duty counsel was not, in my view, compliant with the RCMP’s duties under s. 10(b) in all the circumstances of this case. The delay in contacting duty counsel may be contrasted in rather dramatic fashion with the immediate way in which the police were able to arrange a call for Mr. Yu to confirm where the key to the safe was.

[72] Mr. Yu asserted a further breach of his s. 10(b) right by virtue of the failure of police to afford him an opportunity to speak with counsel of his choice. I find that Corporal Fuhrman did advise him, at the time of his initial arrest, that he had the right to retain and instruct counsel without delay – either his own counsel or duty counsel for free. At no time thereafter did Mr. Yu indicate to the police that he had a particular lawyer in mind that he would like to speak to. When the police provided him with a cell phone in his cell in order to call his father about the key to the safe, he asked if he might also speak to his father about a lawyer. Constable Cobey agreed that he could do so. Nevertheless, after the call, Mr. Yu did not ask that a particular lawyer be contacted on his behalf. He was then put in contact with a Cantonese or Mandarin speaking duty counsel, following which he still did not ask that any particular lawyer be contacted on his behalf. I do not find, in the circumstances, that the police failed to provide Mr. Yu with access to his counsel of choice.

The Failure to Hold Off

[73] The question of when the police began to elicit evidence from each of Mr. Liew and Mr. Yu is critical to the determination of whether there was a breach of the duty to hold off.

[74] I find that, in Mr. Liew’s case, Constable Gallop began to elicit evidence on the car ride from Markham to Milton on February 4, 2010. I say this for two reasons.

[75] First, the attempt to establish a rapport with Mr. Liew was the initial stage of the interviewing technique employed by Constable Gallop. Constable Gallop was asked by Mr. Gold, during cross-examination, whether he utilized the Reid Technique when interrogating Mr. Liew and Mr. Yu. He said he was not specifically trained in that technique, but agreed there were similarities between it and the technique he used with the accused in this case. The Reid Technique was described in some detail by Justice Moreau in R. v. Minde, 2003 ABQB 797. While it is not necessary to explore the technique in detail here, it generally involves the interviewer establishing a rapport and level of trust with the subject, then confronting him or her about the crime. All the while an active deceit is ongoing that the police know the crime happened, know the subject was involved and they have evidence to prove it. There is a display of sympathy and understanding and a minimization of moral responsibility, coupled with an effort to persuade the subject that he or she would feel better or relieved by telling the truth. The technique involves extensive monologues on the part of the investigator. Constable Gallop utilized all of the core features of the Reid Technique during his interviews of the accused.

[76] Constable Gallop acknowledged that he decided to speak with Mr. Liew during the car ride to Milton because he knew he would be talking to him later and wanted to use the opportunity to form some kind of bond with him. He also acknowledged that the first step of his interviewing technique is to establish a rapport with the accused. The upshot of these facts is that Constable Gallop got a head start on the first step of his interview of Mr. Liew during the car ride to Milton, prior to Mr. Liew’s opportunity to speak to counsel.

[77] Second, evidence was indeed elicited from Mr. Liew during the car ride. There is no record of what was discussed between Mr. Liew and Constable Gallop in the police car during the one hour ride to Milton. That alone is cause for concern. But the evidence provided by Constables Gallop and Cuko is that there was a discussion about cocaine and about Mr. Liew’s knowledge of it. Mr. Liew admitted that “this is bad” - a comment that Constable Gallop considered significant. Constable Cuko noted that Mr. Liew expressed a knowledge that the packages he removed from the trailer contained cocaine. This may be an incriminating comment. Or it may not. Even if it is not ultimately incriminating, it may have put Constable Gallop on inquiry in terms of a line of questioning he wished to pursue during the videotaped interview. Whether intentional or unwitting, it is my view that the police elicited evidence from Mr. Liew at the time when he was most vulnerable, before he had had an opportunity to speak to counsel. The duty to hold off was breached.

[78] My conclusion in Mr. Yu’s case is the same.

[79] Corporal Fuhrman entered 18 Eden on March 1, 2010 pursuant to the warrant. He found Mr. Yu in the front foyer. He immediately took his cell phone from him. He instructed Mr. Yu to go and sit on the couch in the living room. Mr. Yu complied. A short time later he called Mr. Yu into another room. Again, Mr. Yu complied. He arrested Mr. Yu. He gave him his right to counsel and caution. He asked if Mr. Yu wished to speak to counsel now. Mr. Yu said he did. He then asked Mr. Yu a series of questions including, (1) whose cell phone was it that Corporal Fuhrman seized; (2) where was Wendy; and (3) who Wendy was.

[80] Clearly Mr. Yu had been detained at the time he was questioned. Indeed, the arrest of Mr. Yu was never in doubt. It had been orchestrated well before the attendance at 18 Eden to execute the warrant. Clearly the questions asked by Corporal Fuhrman were intended to elicit evidence. The connection between Mr. Yu’s cell phone and Mr. Liew’s cell phone was of great significance to the case. The connection between Donald Yu and Wendy Yu was also of great significance.

[81] Mr. Yu’s s. 10(b) rights were engaged at the time he was detained: R. v. Suberu, as above. The attempt to elicit evidence after the detention, but before Mr. Yu had a chance to speak with counsel, was a breach of the obligation on the police to hold off.

The Failure to Ensure the Accused Understood Their Rights

[82] Rights guaranteed by the Charter are not meaningful if they are not understood. As Justice McLachlin, as she then was, observed in R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, a person who does not understand his or her right cannot be expected to assert it. She explained this concept at para. 44, of her decision as follows:

Dealing first with the initial arrest, I am satisfied that the police did not comply with s. 10(b). It is true that they informed the appellant of his right to counsel. But they did not explain that right when he indicated that he did not understand it. A person who does not understand his or her right cannot be expected to assert it. The purpose of s. 10(b) is to require the police to communicate the right to counsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the police are required to go no further (unless the detainee indicates a desire to retain counsel, in which case they must comply with the second and third duties set out above). But where, as here, there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that understanding.

[83] The Court of Appeal for Ontario held, some 25 years ago, that once investigating officers are alerted that there are special circumstances relating to a detainee’s comprehension, then they must reasonably ascertain that the detainee’s constitutional rights are understood by him: see R. v. Vanstacegham, 1987 CanLII 6795 (ON CA), [1987] O.J. No 509. This principle has been re-affirmed continuously since then: see for instance, R. v. Lukavecki, [1992] O.J. No. 2123 (Gen. Div.), R. v. Karnakov, [1996] O.J. No. 1822 (Gen. Div.), and more recently, R. v. Nguyen, [2011] O.J. No. 6252 (S.C.J.).

[84] Having this principle in mind, a brief review of the circumstances surrounding Mr. Liew’s statement is warranted:

(i) At the time of his arrest, Constable Gallop advised him that he was under arrest for the importation of cocaine. He asked if Mr. Liew understood why he was under arrest and Mr. Liew said no. He nevertheless went on to read him his s. 10(b) right and told Mr. Liew that someone would explain his rights to him when they got back to the police station. He said under cross-examination that he did not know if there would be anyone at the station who could speak Chinese but he would find someone. He changed his mind, however, after speaking with Mr. Liew during the car ride to Milton. He did not have anyone explain his rights to him;

(ii) No one could say precisely who called duty counsel for Mr. Liew, or when. Constable De Dieu noted that Mr. Liew spoke to a Mr. Chan at somewhere between 4:50 p.m. and 5:10 p.m. on February 4, 2010. This is at odds with Constable Cuko’s evidence that he was guarding Mr. Liew in the cells area between 4:30 and 5:25 p.m. Constable Cuko said he got duty counsel contact information from Constable De Dieu at 5:25 p.m., but he could not recall exactly what information he got and he could not recall anyone placing a call to duty counsel;

(iii) No one inquired of Mr. Liew whether he had understood the information provided to him by duty counsel. Constable De Dieu testified that it is his usual practice to ask a prisoner, once s/he has spoken to duty counsel, if s/he is satisfied with the information s/he received. He could not recall doing so on this occasion. He could also not say if Mr. Chan, the duty counsel he said he put Mr. Liew in touch with, spoken Cantonese, Malay or Mandarin, or any of them;

(iv) Constable Gallop confirmed that Mr. Liew had spoken to one lawyer, but did not ask what language their conversation was in, or even if Mr. Liew understood what was said by the lawyer; and,

(v) During the videotaped interview with Mr. Liew, it is apparent that he was having difficulty understanding some of what Constable Gallop said. He clearly expressed concerns about his level of comprehension and was afraid he was misunderstanding Constable Gallop. At one point he asked if he could answer in Chinese.

[85] I have grave concerns about whether Mr. Liew understood his rights before speaking with Constable Gallop. The police should have ensured that Mr. Liew spoke to a duty counsel who could speak his native language. They should have properly recorded to whom he spoke and when. They should have ensured that he understood the information provided to him. They should have obtained and utilized the services of an interpreter during the interview of Mr. Liew.

[86] There were clearly special circumstances here that required the police to ascertain that Mr. Liew understood his constitutional rights. They failed in that obligation. I have no confidence that Mr. Liew’s constitutional rights were understood by him. Proceeding to interview Mr. Liew, without an interpreter, in all the circumstances, demonstrated poor judgment on the part of the RCMP.

[87] Mr. Yu’s experience was not unlike that of Mr. Liew. Again, a brief review of the circumstances surrounding his statement is warranted:

(i) At the time of Mr. Yu’s arrest, his son volunteered to act as an interpreter for him, during the time that Corporal Fuhrman was speaking to him. Mr. Yu’s son would be familiar with his capacity to converse in the English language. The fact that he so quickly stepped in to assist with interpretation is circumstantial evidence from which one might reasonably infer that Mr. Yu has meaningful deficits in English language comprehension;

(ii) Mr. Yu was put in touch with an English speaking duty counsel. Subsequently, Constable Cobey had sufficient concerns about Mr. Yu’s level of understanding the initial discussion with duty counsel, that he facilitated a second call – this time to a Chinese speaking duty counsel;

(iii) Constable Gallop testified that he did not believe an interpreter was necessary for Mr. Yu because Mr. Yu, in a previous police occurrence in Toronto, acted as an interpreter for another suspect. The occurrence report was put to Constable Gallop in evidence. I find that it does not support the conclusion that Mr. Yu ever acted as an interpreter for another suspect;

(iv) Constable Gallop did not recall whether anyone had told him that Mr. Yu spoke with a Chinese speaking duty counsel. He did not make that inquiry. In fact, it appears no one inquired as to whether Mr. Yu understood the information he was given by duty counsel; and,

(v) When Mr. Yu expressed concerns about his ability to comprehend and converse in English during his interview, Constable Gallop rebuked him and told him his English was perfect.

[88] Again, there were special circumstances here that required the police to ascertain whether Mr. Yu understood his constitutional rights. They failed to do so. Instead, they proceeded to interview him without an interpreter and ignored his expressed concerns about his lack of proficiency in the English language.

Summary of s. 10(b) Breaches

[89] In summary, while I find no breach of the informational component of the s. 10(b) rights of the accused, I do find that the following breaches have been established, on a balance of probabilities:

(i) The police failed to implement the right to counsel of either accused without delay;

(ii) The police failed to refrain from eliciting evidence from each accused before he had spoken with counsel; and,

(iii) The police failed, in the special circumstances of this case, to ensure that each accused understood his constitutional rights before questioning him.

[90] Having concluded that the s. 10(b) rights of the accused were breached, I return to the issue of voluntariness and the next question the Court is asked to determine:

(ii) Has the Crown established the voluntariness of the statement of each accused, considering all the surrounding circumstances, including any Charter breaches?

[91] Recall that when assessing the voluntariness of a statement made by an accused person, the court must evaluate the circumstances in which the statement was made, having regard to factors that include, but are not limited to, threats, promises, oppression, the requirement of an operating mind, and police trickery: R. v. Oikle, as above.

[92] Neither accused asserts that he was induced to make a statement to the police on the basis of threats or promises. Neither asserts oppression, or that he was subjected to police trickery of a nature or kind that would undermine the integrity of the criminal justice system: see R. v. Spencer, (2007), 2007 SCC 11, 217 C.C.C. (3d) 353 (S.C.C.), at para. 12. Moreover, neither accused argues that his statement was made in the absence of an operating mind, acknowledging that the concept of an operating mind requires little, if anything, more than an awareness of what he is saying and that he is saying it to police officers who can use it to his detriment: Oikle, para. 63.

[93] The accused submit, essentially, that even though none of the classic factors referenced in R v. Oikle are made out on distinct inquiries, the court should still have a reasonable doubt about the voluntariness of their statements, when all the circumstances are collectively taken into account. These circumstances include the language deficits of the accused and the numerous Charter breaches committed by the RCMP. The argument recalls the direction of Justice Iocabucci in R. v. Oikle, as above, that the court should strive to understand all of the circumstances surrounding the statement and ask if those circumstances, taken together, give rise to a reasonable doubt as to the statement’s voluntariness.

[94] The Crown’s submissions on voluntariness focussed largely on the language issue, which is not surprising since that was the main thrust of the Defence position. The Crown submits, relying on R. v. Lapointe, 1983 CanLII 3558 (ON CA), [1983] O.J. No. 183 (C.A.), that the determination of whether an accused’s capacity to make a statement was undermined by language difficulties is a matter for the ultimate trier of fact – in this case, the jury. At para. 43 of Lapointe, Lacourciere J.A. held as follows:

In my opinion, the proper test to arrive at the determination whether the statements (otherwise held to be voluntary) were admissible, was whether the Respondent’s understanding and ability to communicate in the English language was so deficient that it was impossible for them to have understood the police or to have made any statements in English. Only then could it be said by the judge that the statements did not amount to their statements. This test, in my opinion, has nothing to do with mental condition or operating mind. It involves the judge on the voir dire applying a legal test to his findings of fact regarding the accused’s ability to comprehend and communicate in the language of the statement. It is difficult to conceive of a situation where the prosecution would be tendering such a statement for, on a voir dire, the first prerequisite would be to adduce some evidence that the statement tendered is the accused’s statement. The determination whether the suspect had the capacity to make a particular statement, by reason of language difficulties, is one for the trier of fact.

[95] Lacourciere J.A. specifically held, amongst other things, that it is an error in principle to hold that language comprehension and expression are relevant concerns in the voluntariness analysis, as opposed to issues of weight for the jury.

[96] I have trouble accepting that the language difficulties of the accused in this case are not a relevant consideration in terms of the voluntariness of their statements. Those difficulties impact significantly on their understanding of why they were arrested, the comprehension of their right to counsel and, perhaps most profoundly, their right of silence. I agree with the view expressed by Watt J., as he then was, in R v. Worrall, [2002] O.J. No. 2711, at para. 106, that “voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them.” I am concerned about the level of awareness that each accused had in this case, particularly Mr. Liew.

[97] Ultimately, the difficult question is whether the language issue should be dealt with as a matter of voluntariness or whether, on the facts of this case, it is more appropriately dealt with as a factor to consider in the analysis under s. 24(2) of the Charter. In other words, whether it is better left to consider as part of the assessment of an appropriate remedy for the identified Charter breaches. After anxious consideration, I have concluded that I must follow the Court of Appeal’s direction in R. v. Lapointe. Findings about the language comprehension of the accused and the reliability of their answers given in response to police questioning are matters that should be left to the ultimate trier of fact.

[98] An exception to the general rule that language deficits go to weight and not admissibility arises where the comprehension of the accused is so deficient that it was not possible for him to understand anything the police said or to make any statements in English. That was not the case here. Moreover, I find that the various breaches of the accused’s s. 10(b) rights, troubling as they may be, did not undermine the voluntariness of their statements. In the result, and in the absence of other oppressive circumstances, I find that the statements of the accused were made voluntarily. It remains to be determined, however, apart from the matter of voluntariness, whether the statements of the accused ought to be excluded as a remedy for the identified Charter breaches. I defer that issue to the s. 24(2) hearing.

[99] Before moving on to examine Mr. Liew’s challenge to the lawfulness of the search of his cell phone, I pause to comment on one last argument advanced by Mr. Yu’s counsel concerning the admissibility of his statement. Mr. Gold submitted that the Court ought to exercise its residual discretion to exclude his client’s statement to police on the basis that its prejudice will exceed its probative value. I defer this issue until trial. It is, at this stage, unclear how, if at all, the Crown intends to use the statement. Mr. Gold’s position was advanced on the basis of a concern about the number of times Constable Gallop declares, during his interview of Mr. Yu, that the police have irrefutable evidence of Mr. Yu’s involvement in the offence. It is very difficult to assess the probative value of the statement at this stage, given the uncertainty about how the Crown intends to use it. It is similarly difficult to assess the matter of prejudice. It may ultimately be that the statement can be edited, or that a suitable instruction can be given to the jury that addresses any potential prejudice. I will be better able to address the issues in the context in which the statement arises, if at all, during the trial.

B. The Lawfulness of the Cell Phone Search

Overview

[100] Section 8 of the Charter guarantees that everyone has the right to be secure against unreasonable search and seizure. Mr. Liew asserts that the seizure and search of his cell phone were unreasonable and, by extension, unlawful. He seeks to exclude any evidence emanating from the search. In other words, evidence of calls between his cell phone and Mr. Yu’s phone. The exclusion of that evidence may have a significant impact on the prosecution of both accused. In his statement to Constable Gallop, Mr. Liew indicated that he did not know that the trailer he was unloading contained cocaine. He said, in essence, that he was simply an unsuspecting labourer hired on at $11/hr to assist in unloading some wood from a truck. Mr. Liew’s precise role in events may, however, be called into question if it is established that he called Mr. Yu while the truck was being unloaded. The evidence of that call was subsequently used as a critical part of the ITO filed in support of the application for the search warrant with respect to 18 Eden. Mr. Yu challenges the basis on which the warrant was issued, in part by asserting that any evidence emanating from Mr. Liew’s cell phone was obtained unconstitutionally and should be excised from the ITO.

[101] There were, in fact, two cell phone searches: (1) The so-called “cursory search” conducted by Constable Gallop at the time of Mr. Liew’s arrest; and (2) the detailed search conducted by Constable Renaud on February 23, 2010. The Crown concedes that Constable Renaud’s warrantless full search was unconstitutional, but it contends that Constable Gallop’s search was lawfully conducted as a part of a search incident to arrest. The Crown’s concession is not a profound one – the key piece of evidence obtained from the cell phone was the call to Mr. Yu’s cell phone number, which was found by Constable Gallop in the search incident to arrest.

[102] Cell phones are now ubiquitous at all levels of Canadian society. They are capable of storing significant amounts of data about their users: call histories, text and instant messages, photographs, emails, contacts lists, banking information, web browsing histories and much more. They may provide portals to other applications, such as Facebook and Twitter, where information is stored remotely. As technology has advanced, cellular phones have progressively added features to the phone call functionality, so much so that they are now akin to hand held computers with cellular phone capabilities. Cell phone use and ownership is so widespread that I would suggest there is a strong likelihood that any person detained by the police is going to have one in his or her possession. The power of the police to search a cell phone, incident to arrest, is an issue of emerging importance and the law is far from settled.

[103] The power of the state to encroach upon the privacy of its citizens is a well-recognized concern. As Justice Binnie observed in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 13:

Few things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization. As La Forest J. stated in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 427-28, "[t]he restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

[104] The extent to which the police may invade the confidential and private information located within a cellular phone without judicial authorization is squarely in issue in this application. Crown and Defence counsel took very different positions on the limits, if any, on the authority of the police to search the contents of a cell phone incident to arrest. Their disparate positions reflect a clear division in the existing case law. One thing they did agree on, however, is that the analysis must be purposeful and animated by Charter values.

The Issues

[105] Mr. Liew’s s. 8 challenge raises two distinct questions, as identified above. To recap:

(i) Did Mr. Liew have a reasonable expectation of privacy in the contents of his cell phone?

(ii) Was the “cursory” search conducted by Constable Gallop an unreasonable intrusion on that expectation of privacy?

See R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, para. 33.

[106] The first question is relatively easily answered. The second presents significantly greater challenges.

(i) Did Mr. Liew have a Reasonable Expectation of Privacy in the Contents of his Cell Phone?

[107] Canadian courts have distinguished a number of privacy interests protected by s. 8 of the Charter, including territorial privacy, privacy of the person, and informational privacy: R v. Tessling, as above. In any given case these protected privacy interests may overlap. That said, not all conceivable privacy interests are afforded constitutional security. The s. 8 guarantee against unreasonable search and seizure protects only reasonable expectations of privacy: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at page 159.

[108] The Supreme Court has established that the existence of a reasonable expectation of privacy is determined contextually, by looking at all of the surrounding circumstances: see Edwards, para. 45 and Tessling, para. 19.

[109] An analytical framework for assessing the assertion of a reasonable expectation of privacy was provided by Justice Binnie in Tessling and repeated, more recently, in R. v. Patrick, 2009 SCC 17, at paras. 26-27. The framework involves looking carefully at the context of a search and its subject matter and determining whether the accused had a direct interest in the subject matter, whether s/he had a subjective expectation of privacy in the subject matter, and whether that expectation was objectively reasonable.

[110] In this case, the subject matter of the search was the information stored in the cell phone, including the call history and text messages. The application proceeded on the basis that the cell phone is the sole property of Mr. Liew. There is no question, under the circumstances, that Mr. Liew had a direct interest in the information stored on the phone.

[111] The Court did not hear directly from Mr. Liew about his subjective expectation of privacy. That said, such an expectation may be readily presumed from all the circumstances: see R. v. Patrick, as above, at para. 37 and R. v. Little, 2009 CanLII 41212 (ON SC), [2009] O.J. No 3278 (S.C.J.) at para. 120. Establishing a subjective expectation of privacy is not a high hurdle. I am prepared to presume that Mr. Liew had such a subjective expectation of privacy in the information contained in his phone.

[112] I am also prepared to find that Mr. Liew’s subjective expectation of privacy was objectively reasonable. There is no evidence that anyone other than Mr. Liew used the phone. Although the content of the phone was not password protected, there is no evidence that anyone other than Mr. Liew had access to the phone, or that Mr. Liew shared the contents of his phone with anyone else. While the presence of a password is not by any means irrelevant, in my view it is the content of the phone that is more significant. One could easily envision instances where phones containing little confidential information are password protected, while, conversely, phones containing a great deal of sensitive information are not so protected. In this instance, much of the information stored in the phone was in Mr. Liew’s native language, which may well have functioned as a proxy for password protection. More importantly, the phone contained information that falls, in my view, within the scope of core biographical information that attracts a significant expectation of privacy. It contained details of Mr. Liew’s private life, including a history of calls he had recently made, as well as the dates, times and content of text messages he had sent and received.

[113] As Justice Sharpe recently observed in R. v. Manley, 2011 ONCA 128, [2011] O.J. No. 642, at para. 39, “[c]ell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information.” The evidence on the voir dire was not as fulsome as it might have been in terms of the actual contents of Mr. Liew’s phone. That said, Officer Renaud did testify that he spent a full day reviewing the contents of the phone. That admission, together with the evidence of the call history and text messages contained in the phone, satisfies me that the phone indeed contained significant amounts of the sensitive, personal, private and confidential information referred to by Sharpe J.A. in Manley. I am satisfied that Mr. Liew did have an objectively reasonable expectation of privacy in the informational content of his cell phone.

(ii) Was Constable Gallop’s Search an Unreasonable Intrusion on Mr. Liew’s Reasonable Expectation of Privacy?

[114] Having found that Mr. Liew had a reasonable expectation of privacy in the information stored in his cell phone, the analysis turns to the question of whether the warrantless search performed on the phone by Constable Gallop was an unreasonable intrusion on Mr. Liew’s privacy interests.

[115] Mr. Liew’s position is essentially twofold. First, he argues that the police did not have reasonable grounds to seize his phone and, as such, any subsequent search of it was unreasonable. In the alternative, he argues that even if the seizure of the phone was lawful, as an incident to arrest, the police were entitled, at most, to a cursory search of it. He says Constable Gallop’s search went beyond the parameters of a “cursory” search and was therefore unreasonable.

[116] The Crown’s position is that the search was lawfully performed as a search incident to arrest. Even if the current state of the law limits the extent of a search incident to arrest to a cursory search only, the Crown submits that Constable Gallop’s search was nothing more than cursory and, as such, was reasonable.

[117] In Canada, there is a general rule that warrantless searches are prima facie unreasonable under s. 8 of the Charter. Searches incident to arrest, however, are an established exception to this general rule: R. v. Golden, 2001 SCC 83, at para. 84. The right to search arises from the fact of the arrest which, of course, requires reasonable grounds. As a stepping off point, therefore, for a search incident to arrest to be lawful, the arrest itself must be lawful: Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158.

[118] As Justice Cory summarized in R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 27, three conditions are, in fact, necessary for a search incident to arrest to be valid: first, the arrest must be lawful; second, the search must be conducted as an incident to the lawful arrest; and, finally, the manner in which the search is carried out must be reasonable.

[119] There is no dispute that the arrest of Mr. Liew was lawful, so the first hurdle is easily cleared. It is the scope of the power to search incident to a lawful arrest that is squarely in issue here. That scope is not unlimited. One obvious limitation is that the search must be truly incidental to the arrest. Former Chief Justice Lamer discussed this limitation in detail in R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, where he said, at para. 17:

In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy.

[120] For a search to be truly incidental to arrest, the police must be attempting to achieve some valid purpose connected to the arrest. These purposes were discussed in Cloutier, as above, at para. 61, and include the discovery of an object that may be a threat to the safety of the police, accused or public, or that may facilitate escape, or that may provide evidence against the accused. Clearly, there must be a connection between the evidence sought and the offence for which the accused was arrested. An arrest for outstanding traffic fines would not, for instance, justify the search of a vehicle’s trunk, as in R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA), 107 C.C.C. (3d) 195 (C.A.); see also R. v. Finnikin, [2009] O.J. No. 6016 (S.C.J.) for an example of this principle engaged in the context of a search of a hand held computing device.

[121] The police must have one of the valid objectives in mind when the search is conducted. In Mr. Liew’s case, there was no issue of public or officer safety, nor a threat of escape. The stated objective of Constable Gallop was to secure evidence against Mr. Liew. It is therefore necessary that Constable Gallop had some reasonable belief in the prospect of securing evidence of the offence for which Mr. Liew was being arrested: Caslake, at para. 22.

[122] To be clear, as Justice Lamer said in Caslake, the officer does not have to have reasonable and probable grounds to conduct the search, only a reasonable basis for doing what s/he did. This is a less demanding standard.

[123] Mr. Liew argues that in this case the police did not have a reasonable basis to even seize his phone. He says the seizure of his phone was unlawful because the police lacked a reasonable belief that there was a prospect it would yield evidence relating to the offence of drug importation. He points out that there was no evidence that any of the RCMP officers involved in the controlled delivery observed him using his phone in the course of the commission of the offence. While that may be so, the police were aware that the importation of cocaine in this instance was an organized undertaking involving numerous individuals. In modern society, it is extremely common for individuals to communicate with one another by cell phone, whether through phone calls, texts, or instant messages. Constable Gallop testified that he believed there was a reasonable prospect that Mr. Liew was communicating with other individuals about the arrival of the shipment and where it was ultimately to be delivered. I accept that evidence and find that Constable Gallop’s stated belief was reasonable in the circumstances. Accordingly, I find that the seizure of the phone was lawful as part of a search conducted incident to Mr. Liew’s lawful arrest.

[124] The inquiry does not end there, however, because Constable Gallop not only seized the phone, he searched its contents. The seizure of the phone goes a long way towards achieving the objective of ensuring that evidence against the accused is secured. Once the phone is safely in the custody of the police, the issue becomes whether it is reasonable for them to look at its contents in the absence of a warrant. I have concluded that, save in exigent circumstances, it is not.

[125] I return to Justice Lamer’s comments in Caslake, as above, that the authority for a search incident to arrest arises out of a need for the police to gain control of things or information – a need that outweighs the accused person’s privacy interest. The language of Caslake illustrates that there is a balancing exercise in play. Historically, to tilt the balance in favour of the state, and to establish the lawfulness of the search, it has been sufficient to demonstrate that the search was truly incidental to a lawful arrest. But the ubiquitous nature of cell phones and their capacity to contain such substantial amounts of sensitive, confidential, personal information creates new and difficult issues to grapple with in the context of this balancing of interests: on the one hand, the state’s legitimate interest in detecting and preserving evidence of criminal activity, and on the other, the individual’s heightened expectation of privacy in the contents of the cellular phone. Justice Sharpe recognized the changing landscape in his recent comments in R. v. Manley, as above, where he said, at para. 39:

I would observe it is apparent that the traditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of modern technology…Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information - all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.

[126] The limits on the scope of a cell phone search incident to arrest have been addressed by a number of trial courts, with inconsistent results. The results, I suggest, demonstrate the tension between the traditional sufficiency of establishing only that the search was truly incidental to the arrest, and a more rigorous, modern approach that recognizes the similarity between cell phones and computers and the particularly significant privacy interests that these devices engage.

[127] As Justice Fish recently said in R. v. Morelli, 2010 SCC 8, at para. 105:

[I]t is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

[128] Justice Fish’s comments focused on a computer’s capacity, perhaps tendency even, to contain highly sensitive and personal information. Traditional computers do not have a monopoly on such a capacity. Remember that, in their infancy, computers occupied large, dedicated rooms. Eventually they came to occupy space on a desktop, then they became portable, as “laptop” devices. Now, significant computing power can be found in the palm of one’s hand. People now routinely carry around in their hands, pockets or holsters, devices that hold the very same confidential information referred to by Justice Fish in Morelli.

[129] Cases decided, I suggest on traditional lines, tend to hold that where a cell phone was validly seized as an incident to arrest, its contents may be lawfully searched. In other words, provided the search was truly incidental to arrest, it was limitless. In R. v. Giles, 2007 BCSC 1147, [2007] B.C.J. No. 2918, for instance, Justice McKenzie of the British Columbia Supreme Court held that the seizure of a Blackberry phone was meaningless without the ability to examine its contents. Similarly, in R. v. Otchere-Badu, 2010 ONSC 1059, Justice Bielby of this court found that a fulsome search of a cell phone seized from an accused as an incident to his arrest on drug trafficking charges was entirely lawful. Justice Bielby found that the phone was lawfully seized as part of a search incidental to arrest, which fact alone justified a search of its contents. In R v. Fearon, 2010 ONCJ 645, police seized a cell phone from an accused arrested for armed robbery. They searched the phone intermittently over several days. They found incriminating photos and text messages. Justice Oleskiw, of the Ontario Court of Justice, found that there was no breach of the s. 8 right of the accused. The phone was lawfully seized incidental to arrest, which justified its search in the circumstances. Justice Oleskiw gave detailed reasons which involved a review of the capacities of the phone in issue and the precise nature of its contents, and concluded, at para. 51:

In my view, an ordinary cell phone objectively commands a measure of privacy in its contents. However, the expectation of privacy in the information contained in the cell phone is more akin to what might be disclosed by searching a purse, a wallet, a notebook or briefcase found in the same circumstances. The evidence in this case is that the LG cell phone appears to have had the functions of cell phone operation, text messaging, photographs and contact lists. While certainly private, the information stored is not so connected to the dignity of the person that this court should create an exception to the police ability to search for evidence when truly incidental to arrest and carried out in a reasonable manner.

[130] It is important to remember that a search incident to arrest is an exception to the basic rule that searches require prior authorization to be s. 8 compliant. In light of the high expectation of privacy in the contents of a cell phone, the question becomes whether the principles justifying warrantless searches incident to arrest remain compelling enough to override that heightened privacy interest. Where the valid objective of a search incident to arrest is truly to secure evidence against an accused, that objective can be adequately met once the phone is seized. Thereafter, again, in light of the heightened privacy interest in the contents of the phone, requiring the police to obtain a warrant to search the contents of the phone strikes, in my view, an appropriate balance between the crime fighting interests of the state and the privacy interests of the individual.

[131] I am not alone in this view. The Giles line of cases may be contrasted with a line of cases that include R. v Polius, [2009] O.J. No. 3074, R v. Little, 2009 CanLII 41212 (ON SC), [2009] O.J. No. 3278 and R. v. D’Annunzio, [2010] O.J. No. 433, all decisions of this court. In each of the cases in this line, the Court found a high degree of privacy in the contents of a cell phone. Each found that once the particular device was safely in the custody of the police, a warrant was required to search its contents. Each, therefore, imposed a further limit on the authority of police to search the phone incident to arrest, beyond simply justifying the search as “truly incidental” to the arrest. The further limitation arises from the heightened expectation of privacy in the contents of the phone.

[132] The Court of Appeal, in Manley, identified R. v. Polius as the leading Ontario case in this area. For the most part I agree with, and follow, the reasoning in Polius, though I am concerned about the concept of allowing the police the opportunity to conduct a warrantless “cursory search”, which I will discuss momentarily.

[133] I pause to comment on a tendency in the cases to focus on the functional capacities of the devices in issue. For instance, whether the device was a “smart phone”. I do not mean to suggest that the functional capacity of the device in issue is an irrelevant consideration. But in my view, it should not be over-emphasized. The real issue is the nature of the information on the phone. The privacy interest being protected relates to the individual’s information. The relevance of the functional capacities of any particular device is really a matter of the device’s capacity to store information of a sensitive, personal, confidential nature. In this context, even a device that nowadays might be considered a relatively basic cell phone has the capacity to store a call history, text messages, a contacts list, a schedule, and photographs – all information that, in my view, attracts a significant expectation of privacy. Moreover, given the pace at which technology in this area is developing, for the law to remain current and relevant, it must anticipate where this technology is heading and develop rules that contemplate the rapidly expanding capacities of these devices.

[134] I return to R. v. Polius. In that case, the accused was charged with counselling murder. At the time of his arrest, officers of the Toronto Police Service (“TPS”) seized his cell phone. They immediately viewed a video contained in the phone, which they thought was connected with the offence. The next day, the phone was delivered to the Intelligence Services-Technological Crime Unit of the TPS where it was searched, without a warrant. The content of the phone was used to obtain a production order for the cell phone records of Virgin Mobile, relating to the defendant’s phone. The Virgin Mobile records were, in turn, of significance in the prosecution.

[135] Justice Trafford reviewed and considered the authority to search incident to arrest in the context of cell phones. He rejected the Crown’s submission that the power to lawfully seize a cell phone incident to arrest includes a warrantless power to examine its contents. In other words, he rejected the Giles line of authority. He found, instead, that “the values underlying s. 8 of the Charter are best cared for by limiting the power to search incidental to arrest and to seize a cell phone to a power to seize it, where there is a reasonable basis to believe it may contain evidence of the crime, for the purpose of preserving its evidentiary value, pending a search of its content under a warrant.” He concluded, specifically, at paras. 32-34:

First, the power of a police officer to search an arrestee for evidence of the crime that is the subject of the arrest, and seize any such evidence, requires an objective reason to support the belief that the item may be evidence of the crime.

Second, the objective reason to believe the item may be evidence of the crime must be apparent in the circumstances of the arrest without anything more than a cursory inspection of the item. The standard governing the manner and scope of a SITA is a reasonable prospect of securing evidence.

Third, the power to seize a cell phone during a SITA where there is reason to believe it may afford evidence of the crime does not include a power to examine the contents of the cell phone without a prior judicial authorization, absent exigent circumstances.

[136] For the most part, I agree with and adopt Justice Trafford’s conclusions. In my view, the police may, in the course of a search incident to an arrest, seize a cell phone where they have a reasonable belief that there is a prospect that the phone may contain evidence of the offence the accused has been arrested for. This power is consistent with the traditional power to search incident to arrest as described in R. v. Caslake, as above. But given the high expectation of privacy in the contents of a cell phone, it is appropriate that a limitation be placed on the power to conduct a warrantless search of the phone, once it is safely in the custody of the police. This limitation is consistent with this court’s rulings in Polius, Little and D’Annunzio. It is also consistent with the comments of Sharpe J.A. in Manley, at para. 39, as above.

[137] Where I part company somewhat with the ruling in Polius, is on the matter of the cursory inspection that Justice Trafford would allow to assist the police in forming their reasonable belief that there is a prospect the phone will contain evidence of the offence. I have difficulty with this concept for two reasons:

(i) First, the reasonable prospect standard is a low threshold. In my view, based on the nature and circumstances of a given offence, it should be possible for the police to form the reasonable belief in the prospect that a phone will contain evidence of an offence without having to view its contents. An encroachment on privacy cannot be used to justify itself. Indeed, a system permitting after-the-fact justification runs the risk of countenancing an unlimited number of unjustified encroachments; and,

(ii) The concept of a “cursory inspection” is difficult to define precisely in terms of its scope. The argument of this application involved five experienced and highly competent counsel. Yet defining the scope of a “cursory search” proved to be a real struggle. Justice Trafford, to be fair, did not use the phrase “cursory search”. He said “cursory inspection”, which may be materially different. That said, Justice Trafford approved of the immediate search by TPS officers who viewed a video on the phone as soon as they seized it. This approval would suggest that at least some limited search of the contents of the phone was contemplated in the concept of a “cursory inspection”. Presumably, given the Charter values in play, a cursory inspection would be one that is minimally intrusive to the privacy interests being protected. Perhaps, on the facts of Polius, Justice Trafford was satisfied that the initial TPS search was minimally intrusive. One could certainly argue that in Manley, the limited search done by the police to determine ownership of the phone, in circumstances where the offence charged involved the theft of cell phones, was minimally intrusive. That said, the practical problem is that police need to have something of a judicial guideline that they can follow in order to ensure that they do not abridge the s. 8 rights of detained persons and jeopardize the admissibility of evidence collected during the course of their investigations. The concepts of “cursory search” or “minimally intrusive searches” are not, in my view, generally very helpful because they do not provide clear guidance as to their limits. While Charter rights must be interpreted purposively and contextually, from a day-to-day policing perspective, an elegant rule would be preferable – in other words, one that is simple and with few adjustable factors.

[138] The balancing of individual privacy interests against the legitimate law enforcement interests of the state, in the context of s. 8 of the Charter, can be traced back to Hunter v. Southam, as above. In that case, Dickson, J., as he then was, considered when the balancing of interests should optimally be performed, in order to give effect to the purpose of s. 8 of the Charter. That purpose, he said, was to protect individuals from unjustified state intrusions upon their privacy. “[It] requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place.” In Justice Dickson’s view, the prevention of unjustified searches, before they happened, could only be accomplished by a system of prior authorization, not one of subsequent validation. Searches incident to arrest have long been an exception to this general requirement of prior authorization. But in my view, given the heightened privacy interests associated with the informational contents of cell phones, the balance between privacy interests and state interests tilts back in favour of a requirement of prior authorization once a cell phone has been lawfully seized and is safely in the control of the police.

[139] To repeat Justice Sharpe’s comments in Manley, “if the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.” I would go so far as to say that, save in exigent circumstances, any search of the contents of a cell phone should have prior authorization.

[140] I recognize that in Manley, Justice Sharpe approved of a cursory search conducted by the police to determine whether the phone seized had been stolen. On the surface, this finding might suggest that the Court of Appeal has approved, generally, of the practice of conducting cursory searches of cell phones seized at the time of arrest. But I do not believe that Manley establishes such a general rule. First of all, Justice Sharpe specifically said that he was not attempting to provide a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest. Secondly, Manley can readily be seen to turn on its own peculiar set of facts. Section 8 of the Charter protects the informational privacy interest of the person who owns the phone and whose information is contained in it. If Mr. Manley was not the owner of the seized phone, then he had no reasonable privacy interest in it. In the unique circumstances of the case, the police were justified in taking the minimally intrusive step of determining whether the phone belonged to Mr. Manley and whether, in the result, he had a reasonable expectation of privacy in it. Their search did not go beyond making that determination.

[141] Ultimately, I prefer the position of Nova Scotia Provincial Court Justice A.S. Derrick, as set out in R. v. Cater, 2012 NSPC 2, at para. 52. Specifically, that “police should not conduct cursory searches of cell phones seized incident to arrest where it is not urgent to do so.”

[142] Accordingly, I would adopt and follow the conclusions of Justice Trafford in Polius, save that I would modify his second conclusion, so that the governing principles would read as follows:

First, the power of a police officer to search an arrestee for evidence of the crime that is the subject of the arrest, and seize any such evidence, requires an objective reason to support the belief that the item may be evidence of the crime.

Second, the objective reason to believe the item may be evidence of the crime must be apparent in the circumstances of the arrest. The standard governing the manner and scope of a SITA is a reasonable prospect of securing evidence.

Third, the power to seize a cell phone during a SITA where there is reason to believe it may afford evidence of the crime does not include a power to examine the contents of the cell phone without a prior judicial authorization, absent exigent circumstances.

[143] In the result, I find the search conducted on Mr. Liew’s cell phone by Constable Gallop to have been unconstitutional because it was warrantless and it exceeded the proper limits of a search incident to arrest. Constable Gallop described his search as “cursory”. Even if a cursory search were permissible - and in my view it is not, save in exigent circumstances - this search exceeded that limit. It involved reviewing the call history of the phone and writing down all entries, followed by an unsuccessful attempt to search and review the phone’s text messages. In my view, this was not a minimally intrusive search. It went immediately into contents of the phone that attract a significant expectation of privacy. There were, in my view, no exigent circumstances present that created an urgency to conduct a warrantless search of the phone. I am not sure what the limits of a “cursory search” are. But I am confident that the search conducted by Constable Gallop was an intrusion into information that attracted a high expectation of privacy. In the circumstances, I find that the search breached Mr. Liew’s s. 8 right to be free from unreasonable search and seizure.

[144] I should comment on the matter of exigent circumstances in this case. Constable Gallop testified that he was concerned that an unknown third party may have had the ability to remotely wipe the content of Mr. Liew’s cell phone clean. He did not elaborate on how that might be done. Under cross-examination, he was asked why, if he had such a concern, he did not simply remove the battery from the phone. He agreed that taking out the battery would disable the phone, unless it had a second, hidden battery. There was no evidence that Mr. Liew’s phone had such a hidden battery. I am not, under the circumstances, satisfied that exigent circumstances existed here that would justify the warrantless search of Mr. Liew’s phone after its seizure.

[145] I appreciate that requiring the police to obtain a warrant to conduct a search of a cell phone, absent exigent circumstances, will mean that they will need to demonstrate reasonable and probable grounds that the phone contains evidence of an offence, before they can search its contents. It is not my desire to unduly handcuff the police in their efforts to detect and investigate crime. But again, in my view, the appropriate balance is struck between the interests of the state and the privacy interests of individuals by requiring the police to demonstrate such reasonable and probable grounds before looking through the contents of personal cell phones.

[146] Having found the cell phone search to be a breach of Mr. Liew’s s. 8 right, I leave the issue of the appropriate remedy for the breach to the s. 24(2) hearing. I will move on to Mr. Yu’s application to exclude evidence obtained from the search of his residence at 18 Eden Avenue.

C. The Search of 18 Eden

[147] A search of Mr. Yu’s residence could only lawfully be conducted after the police established, on oath, that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence of that offence to be found at 18 Eden: R. v. Morelli, as above, at para. 39. In this instance, the police established that belief, to the satisfaction of a Justice of the Peace, on the basis of an ITO sworn by Constable Cobey on February 26, 2010.

[148] Mr. Yu challenges the sufficiency of the warrant application. He ultimately seeks to exclude from his trial, any evidence gathered during the execution of the warrant.

Statutory Framework

[149] The search warrant was issued on February 26, 2010 pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). That section provides as follows:

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

(c) offence-related property, or

(d) any thing 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.

[150] The first statutory pre-requisite to a successful application for a search warrant under the CDSA is that the police have reasonable grounds that, amongst other things, evidence of an offence under the CDSA is in the place sought to be searched.

[151] The standard of proof required to establish reasonable grounds is one of reasonable probability and not proof beyond a reasonable doubt: R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.) at para. 47. As Hill J. observed in R. v. Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260 (Gen. Div.) the standard is one of “credibly based probability”. Mere suspicion, conjecture, hypothesis or "fishing expeditions" do not meet the requisite standard.

[152] A warrant issued under s. 11 of the CDSA is presumptively valid. A reviewing court is restricted in its ability to interfere with a presumptively valid search warrant. The determinative question is whether the issuing judge could (not should) have granted the warrant. Sopinka J. outlined the test clearly in R v. Garofoli 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at para. 56:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

[153] Accordingly, Mr. Yu’s application challenging the warrant requires the Court to review the content of the ITO to determine if it contains sufficient evidence upon which the issuing justice could have found that there were reasonable grounds to believe that evidence of an offence under the CDSA could be found in 18 Eden Avenue. The ITO is to be considered, however, in the light of the evidence presented during the voir dire. As Fish, J. said in R. v. Morelli, as above, at para. 41:

The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire to correct minor errors in the ITO -- so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

[154] No amplification evidence was introduced during the voir dire. But 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. During the course of the blended voir dire, Mr. Gold sought leave to cross-examine Constable Cobey on the content of the ITO, which I granted, for reasons given orally. Mr. Yu challenges parts of the ITO for the following reasons:

(i) Evidence about contact between Mr. Liew’s cell phone and his cell phone was unconstitutionally obtained and ought to be excised, in Mr. Yu’s submission;

(ii) Full and frank disclosure was not made in relation to evidence regarding the address of Wendy Yu; and,

(iii) The statement that Officer Verma identified a female driver seen leaving 18 Eden on February 24, 2010 was wrong. Moreover, Constable Cobey did not refer to the circumstances under which the purported identification was made, which would have made the issuing justice alive to the frailties of the identification.

[155] It is well settled that inaccurate information in an affidavit, omitted facts, inadvertent or even fraudulent errors do not lead to automatic vitiation of the authorization: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.CR. 1097; R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.). The test on review is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued: R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.); R. v. Morelli, as above. In looking for such reliable evidence, the reviewing Court must exclude erroneous information as well as information unconstitutionally obtained.

[156] I have found that the police breached Mr. Liew’s s. 8 Charter right when they searched his cell phone both at the time of his arrest and later back at the Toronto West detachment. It was during what I found to be an unconstitutional search of his phone at the time of his arrest that the connection between his phone and Mr. Yu’s phone was discovered. The ultimate fate of that evidence, however, remains to be determined during the s. 24(2) hearing to be convened following the release of these reasons. Accordingly, I defer the excising of this evidence from the ITO until after counsel’s submissions have been received during the 24(2) hearing. I will move on to issues raised by Mr. Yu in relation to the address of Wendy Yu and the issue of full and frank disclosure.

Full and Frank Disclosure

[157] A significant aspect of Mr. Yu’s attack on the reliability of the ITO is the assertion that Constable Cobey failed to be full, frank and fair in the manner he presented the evidence relating to Wendy Yu’s purported residence at 18 Eden.

[158] Applications for search warrants are made on an ex parte basis. Ex parte applications lack the usual checks and balances present in the adversarial system of litigation. The risk of injustice is always present when orders are made against parties who have not been able to make submissions to the court, nor even been put on notice that relief against them is being sought. As Sharpe J. (as he then was) described in United States of America v. Friendland, [1996] O.J No. 4399 (O.C.G.D.):

[T]he law imposes an exceptional duty on the party who seeks ex parte relief. That party is not entitled to present only its side of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to make a balanced presentation of the facts in law. The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side. The duty of full and frank disclosure is required to mitigate the obvious risk of injustice inherent in any situation where a Judge is asked to grant an order without hearing from the other side…

The duty of full and frank disclosure is, however, not to be imposed in a formal or mechanical manner. Ex parte applications are almost by definition brought quickly and with little time for preparation of material. A plaintiff should not be deprived of a remedy because there are mere imperfections in the affidavit or because inconsequential facts have not been disclosed. There must be some latitude and the defects complained of must be relevant and material to the discretion to be exercised by the Court. (citations omitted)

[159] Though Friedland was a civil case, the duty to make full and frank disclosure has been expressly adopted in the context of ex parte applications for wiretap authorizations – and, by analogy, search warrants. In R. v Araujo, as above, the Supreme Court confirmed that the legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of all material facts.

[160] A failure to make full and frank disclosure will not automatically vitiate the search warrant, but the failure may certainly be considered in the context of assessing the credibility of the affiant and the reliability of the content of the ITO. Non-disclosed material information may of course be considered when assessing the sufficiency of the information as part of the review process.

[161] Mr. Yu attacks the evidence about Wendy Yu’s address on two fronts. First, he argues that the police had evidence connecting Wendy Yu to several different addresses, but only referred in the ITO to the 18 Eden address. Second, Constable Cobey made a statement in the ITO at para. 30, that Constable Verma had identified a female driver departing from 18 Eden as Wendy Yu, which was problematic for two reasons: (1) the female driver, in all likelihood, was not Wendy Yu, but rather Mr. Yu’s wife; and (2) the circumstances in which the identification was made were not laid out in the ITO, which means that the reviewing justice would not have been able to assess the frailties of the identification.

[162] I have already reviewed the evidence relating to Wendy Yu’s address. I find that Constable Cobey failed to make full and frank disclosure in the ITO of the following material facts:

(i) On February 2, 2010, an RCMP officer searched what Constable Cobey described under cross-examination as “all the usual sources the police would normally check for a person’s address” and could not located an address for Wendy Yu;

(ii) Her passport application in February 2006 indicated an address for Wendy Yu of 88 Elm Street, Ottawa;

(iii) A search of Wendy Yu’s social insurance number disclosed an address of 13 Military Trail in Toronto;

(iv) Constable Verma had never met Wendy Yu before he identified her. His identification was based on a comparison of a woman he saw driving an SUV to one photograph that Corporal Fuhrman had shown him; and,

(v) Constable Verma had only a fleeting glimpse of a female driver in traffic. He could not otherwise describe any of the surrounding conditions at the time he made his identification and had no notes of those circumstances.

[163] Eyewitness identification has many frailties, well known to the law. It is a type of opinion evidence, the reliability of which can be difficult to assess: R. v. Miaponoose, 1996 CanLII 1268 (ON CA), [1996] O.J. No. 3216 (C.A.). The weight to put on a purported identification varies depending on the circumstances. In R. v. Powell, 2007 CanLII 45918 (ON SC), [2007] O.J. No. 4196 (S.C.J.), Ducharme J. described a number of factors that courts will consider when assessing identification evidence. Those factors include:

(i) Whether the suspect was a complete stranger or known to the witness;

(ii) Whether the opportunity to see the suspect was fleeting or something more substantial;

(iii) Whether the setting was darkness or well-illuminated conditions;

(iv) The condition of the witness at the time of the sighting;

(v) Whether the witness committed a description of the suspect to writing;

(vi) Whether the description was vague and general or whether the description was detailed including any distinctive features of the suspect;

(vii) Whether there were intervening circumstances capable of tainting or contaminating the independence of the identification evidence;

(viii) Whether cross-racial identification is involved. If so, the trier of fact must be alive to at least the possibility that this might cause the witness some difficulty; and,

(ix) Whether there is any other reliable circumstantial evidence capable of confirming or supporting the identification evidence of the eye witness.

[164] None of the circumstances surrounding Constable Verma’s purported identification were provided in the ITO, making it impossible to assess the reliability of that identification. The ITO merely stated as a fact that Constable Verma had identified the female driver as Wendy Yu, as though there could be no doubt about the identification. In fact, the circumstances in which the identification took place should have given any reviewing justice pause to consider its reliability. Indeed, other surveillance evidence adduced during the voir dire (which was available to the police before the ITO was sworn) satisfies me that, in all likelihood, it was not Wendy Yu who Constable Verma saw driving the SUV.

Conclusions about the Sufficiency of the ITO

[165] It is important to recall that this is not a hearing de novo. A reviewing court need only be satisfied that, after editing, there remains sufficient, reliable material in the record such that the issuing justice could have granted the warrant. It is not for me to substitute my own view for what should have or might have been done differently.

[166] In summary, though there was reliable evidence on which one could readily conclude that Wendy Yu was involved in the commission of the offences charged, there was insufficient reliable evidence on which one could reasonably conclude that she resided at 18 Eden at the time the warrant was sought. The evidence identifying Wendy Yu as the female driver leaving 18 Eden was not reliable, for the reasons I have set out. The evidence that Wendy Yu lived at 18 Eden, therefore, consisted only of the address recorded on her driver’s license. This evidence, left on its own, was not sufficiently reliable either. Constable Cobey conceded under cross-examination that people often do not update the information on their driver’s licenses as promptly as they should. In other words, a driver’s license does not necessarily provide an accurate record of a person’s current address. Moreover, the police had at least two other possible addresses for Wendy Yu, connected with two other pieces of identification, and they had no reliable surveillance evidence connecting her to 18 Eden.

[167] 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 possibility have afforded reasonable grounds that evidence of the offences charged in this case could be found at 18 Eden.

[168] I move on to the last pre-trial application argued – the return of the computers seized by the RCMP during the search of 18 Eden.

D. The Return of the Seized Computers

[169] When RCMP officers searched 18 Eden, they seized two computer towers. As part of their disclosure obligation, the Crown has delivered mirrored copies of the hard drives of both computers to counsel for Mr. Yu. In total, five mirrored drives have been provided to Mr. Yu’s counsel. But there are problems with those drives. Counsel has filed an affidavit setting out their difficulties. They are unable to open three of the hard drives, marked drives #12, 13 and 15 in the Crown’s disclosure. Drives #12 and 13 apparently come from a computer identified by the Crown as Mr. Yu’s computer.

[170] Defence counsel, Ms. Arsenault, deposed that they are simply unable to open drives #12 and #13 and that, in fact, drive #13 began to smoke when plugged in. With respect to the mirrored drives that do open, counsel deposed that the contents of the drives disclosed is not a true mirror of the original hard drives.

[171] Defence counsel submits that they have no confidence that re-disclosed mirrored drives will provide them with proper disclosure and they argue that they need to have the original drives delivered to them for inspection.

[172] This is obviously a disclosure issue. In R. v. Dunn, 2009 CanLII 75397 (ON SC), [2009] O.J. No. 5749, a case involving substantial Crown disclosure delivered in electronic form, I ruled that the standard for electronic disclosure involves the following principles:

(i) The Crown’s obligation to effect meaningful disclosure flows from the constitutional right of the accused to make full answer and defence;

(ii) Electronic disclosure is meaningful disclosure if it is reasonably accessible; and,

(iii) Reasonable accessibility is a matter to be assessed contextually on a case by case basis, but certainly to be accessible disclosure must be reasonably organized and searchable.

[173] The Affidavit of Ms. Arsenault makes it apparent that the disclosure provided by way of the mirrored hard drives is not reasonably accessible. As such it is not meaningful disclosure.

[174] While a Defendant has a constitutional entitlement to disclosure, the form of disclosure remains a matter of Crown discretion: R. v. Blencowe (1997), 1997 CanLII 12287 (ON SC), 118 C.C.C. (3d) 529. The contents of the seized computers needs to be re-disclosed in a format accessible to Mr. Yu’s counsel. I am prepared to leave the form of re-disclosure to the Crown’s discretion, provided accessible disclosure of the contents of the computers is made on or before April 5, 2012. Should that re-disclosure not be completed by April 5, 2012, then the matter may be re-addressed before me on April 10, 2012 when this case is next set to be spoken to.

CONCLUSION

[175] In summary, while I have found the statements made by each accused to Constable Gallop to have been voluntarily, I have found the following breaches of Mr. Liew’s Charter rights:

(i) He was not provided with access to counsel without delay, thereby infringing his s. 10(b) right to counsel;

(ii) Constable Gallup elicited evidence from him prior to his having the opportunity to speak to counsel, thereby infringing his s. 10(b) right to counsel;

(iii) Despite the presence of special circumstances surrounding his language comprehension, the police failed to ensure that he understood the information about his rights provided to him by duty counsel, thereby breaching his s. 10(b) right to counsel;

(iv) The police conducted a warrantless search of his cell phone at the time of his arrest that exceeded their right to do so as a search incident to arrest and thereby infringed his s. 8 right to be secure against unreasonable search and seizure;

(v) Subsequently, the police conducted a further warrantless (and more detailed) search of his cell phone in further breach of his s. 8 right to be secure against unreasonable search and seizure.

[176] I have also found the following breaches of Mr. Yu’s Charter rights:

(i) He was not provided to access to counsel without delay, thereby breaching his s. 10(b) right to counsel;

(ii) Corporal Fuhrman elicited evidence from him before he had had an opportunity to speak to counsel, in breach of his s. 10(b) right to counsel;

(iii) Despite the presence of special circumstances surrounding his language comprehension, the police failed to confirm that he understood the information provided to him about his rights and proceeded to interview him without the benefit of an interpreter, in breach of his s. 10(b) right to counsel.

[177] The matter is otherwise adjourned to April 10, 2012 to, amongst other things, address any remedies sought by defence counsel pursuant to s. 24(2) of the Charter.

Boswell J.

Released: March 27, 2012

[^1]: Mr. Yu was, in fact, arrested twice: initially by Corporal Fuhrman and then again by Constable De Dieu.