ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-90000411
DATE: 20120514
B E T W E E N:
HER MAJESTY THE QUEEN
Chris de Sa for the Crown
Respondent
- and -
BIN CHEN and ZHOU YE
David Bayliss for Bin Chen
Applicants
Kim Schofield for Zhou Ye
HEARD: September 19, 20, 21, 22, 2011, January 25, 2012
Corrick J.
RULING ON APPLICATION TO EXCLUDE EVIDENCE
Introduction
[ 1 ] The Applicants, Bin Chen and ZhouYe, are jointly charged with possession of ketamine, a controlled substance, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19.
[ 2 ] The Applicants claim that the police violated their rights guaranteed by sections 7, 8, 9, 10(a), 10(b), 14 and 15 of the Charter in investigating this matter, and seek an order pursuant to s. 24(2) of the Charter excluding all evidence obtained as a result of those violations. As a result of my conclusion that the Applicants’ rights guaranteed by sections 8, 9, 10(a) and 10(b) were violated, and that the evidence obtained as a result of those violations must be excluded pursuant to s. 24(2), it is unnecessary to deal with the submissions related to sections 7, 14 and 15.
[ 3 ] On April 27, 2012, I granted the application and gave a brief oral summary of my reasons. I informed the parties that written reasons would follow. These are my reasons for granting the application.
Procedure on the Voir Dire
[ 4 ] On consent, the following material was filed as evidence on the voir dire :
the transcript of evidence taken at the preliminary inquiry held before Mr. Justice B. Knazan on April 20, 21, and 22, 2010 and
copies of the notes written by Officers Deabreu, Eliadis, Loria, Ryan, St. George, Coulthard and Wang.
[ 5 ] In addition, I heard evidence from both Applicants and from Officers Eliadis, Loria, Ryan, St. George, and Wong. Counsel agreed that the evidence of the officers heard on the voir dire would ultimately be applied to the trial, if necessary.
Overview
[ 6 ] The Crown alleges that the Applicants were operating a drug lab in the basement of a house they rented at 252 Timberbank Boulevard in Toronto. On December 19, 2008, more than 14 kilograms of ketamine were seized from the house, along with other hazardous chemicals and precursors used to extract ketamine. The estimated street value of the ketamine is $1,437,200.00.
[ 7 ] On December 18, 2008, police followed and stopped an SUV driven by Mr. Chen. Mr. Ye and his twin brother were passengers. The occupants of the SUV were detained while police officers went to 252 Timberbank, conducted a perimeter search, and ultimately entered the house. Once inside the house, they discovered a drug lab. A search warrant was obtained for the property and was executed on December 19, 2008.
[ 8 ] The Applicants assert that they were arbitrarily detained in the SUV and were not given their rights to counsel or told why they were being detained. They also assert that the initial search of 252 Timberbank was unlawful and that the search warrant was issued on the basis of information that had been obtained in violation of their Charter rights. As a result, they seek the exclusion of their utterances made to the police, the information seized by the police at the roadside, and the drugs and other evidence of the chemical lab found in 252 Timberbank.
[ 9 ] Although the events in question occurred over a brief period of time between 2:47 p.m. and 3:12 p.m. on December 18, 2008, it is helpful to set them out and examine them individually.
(Full decision continues exactly as provided in the source HTML.)
Corrick J.
Released: May 14, 2012
COURT FILE NO.: CR-10-90000411
DATE: 20120514
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
BIN CHEN and ZHOU YE
Applicants
RULING ON APPLICATION TO EXCLUDE EVIDENCE
Corrick J.
Released: May 14, 2012