ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1-611646
DATE: 20120525

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: April 10, 2012

ruling on s . 24(2) Hearing

boswell j.

INTRODUCTION:

1 The accused were charged with the importation of roughly 30 kg of cocaine as well as possession of cocaine for the purpose of trafficking. In advance of their trial, they brought applications to exclude evidence they say was obtained unconstitutionally. In particular:

(i) Each gave a videotaped statement to the police following his arrest. Each argued that his s. 10(b) rights were violated in advance of his statement. Each sought to exclude his statement from evidence;

(ii) Mr. Liew’s cell phone was seized at the time of his arrest and searched by the police – first by Officer Gallop coincident to the arrest, then later by Officer Renaud at the police station. Both searches were warrantless. Mr. Liew sought to exclude any evidence found on the phone;

(iii) Finally, Mr. Yu’s Markham residence was searched by police pursuant to a warrant. Mr. Yu challenged the basis upon which the warrant was issued. He argued that the Court should find that the Information to Obtain the warrant (the “ITO”), as amplified during the hearing of the applications, was insufficient to provide a basis on which the issuing Court could have found that there were reasonable grounds to believe that evidence of an offence could be found in the residence. He submitted that in the absence of a valid warrant, any evidence obtained during the search of his home ought to be excluded.

2 The applications were heard over two weeks during January and February, 2012. A comprehensive ruling was issued on March 27, 2012, in which I concluded, amongst other things, that the police had infringed the Charter rights of the accused in a number of respects. Subsequently, on April 10, 2012, a further hearing was conducted, during which the parties made submissions about what, if any, remedies ought to be imposed, pursuant to s. 24(2) of the Charter. The trial was scheduled to commence on April 23, 2012, before a jury. Accordingly, I indicated to the parties that I would release a brief endorsement setting out my conclusions on the remedies issue, to be followed by written reasons for those conclusions.

3 On April 17, 2012, I released a short endorsement in which I imposed the following remedies:

(i) The videotaped statements of each accused were excluded from evidence at trial;

(ii) Any evidence derived from the warrantless searches of Mr. Liew’s cell phone was excluded from evidence at trial; and,

(iii) The unconstitutionally obtained evidence from Mr. Liew’s cell phone was excised from the ITO. I concluded that the ITO, as amplified on review, could not have supported the granting of the warrant. The Crown conceded that, with this finding, the search of Mr. Yu’s residence was warrantless and any derivative evidence flowing from that search was excluded from the trial.

4 What follows are my reasons for the remedies imposed.

FINDINGS OF FACT

5 In my March 27, 2012, ruling, I made factual findings surrounding the alleged Charter breaches. I will not repeat all of those findings here. But since those facts provide the necessary context for the remedies imposed I will briefly review them. A full account of the facts and the conclusions I drew from them is found in the March 27 ruling, reported at 2012 ONSC 1826.

The Controlled Delivery

6 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 RCMP were contacted. They removed the cocaine and replaced it with a benign substance. Then they made a controlled delivery of the shipment. In other words, they allowed it to proceed to its ultimate destination, under surveillance, with the goal of apprehending the recipients of the cocaine.

7 On February 4, 2010, the shipment arrived at a commercial complex at 290 Yorktech Drive in Markham. Mr. Liew and another male began to unload the benign substance from the truck and were arrested at gunpoint by RCMP officers.

Breaches of Mr. Liew’s s. 10(b) Right

8 Mr. Liew was arrested by Constable Rod Gallop at about 2:12 p.m. Officer Gallop advised him he was under arrest for the importation of cocaine and asked if he understood. Mr. Liew said no. Officer Gallop told him that someone would be able to explain things to him in his own language when they arrived at the police station. No one ever did.

9 Constable Gallop went on to advise Mr. Liew that he had a right to retain and instruct counsel without delay. He told Mr. Liew there was a toll free number he could call for free legal advice, but did not provide him with the number. He asked Mr. Liew if he wanted to call a lawyer “now” and Mr. Liew said he did. A call was not arranged with duty counsel, however, for another three hours.

10 In the meantime, Mr. Liew was placed in the back of Officer Gallop’s police car and driven to the police station in Milton. During the one hour drive, Officer Gallop engaged in conversation with Mr. Liew. The conversation was not recorded in any format, but it is apparent that during the conversation evidence was elicited from Mr. Liew.

11 Back at the station, someone placed a call to duty counsel for Mr. Liew, though it is not clear who made the call. Mr. Liew did have a chance to speak to a duty counsel in his own language. [1] Not knowing who placed the call, however, it was unclear in the evidence what, if anything, duty counsel was told about Mr. Liew’s jeopardy. Sometime after speaking with duty counsel, Mr. Liew was interviewed by Constable Gallop. Despite Mr. Liew’s obvious difficulties with the English language, an interpreter was not provided. No one confirmed, moreover, before the interview began, that Mr. Liew had understood his rights following his discussion with duty counsel, particularly his right to silence. The interview was videotaped. It was apparent that Constable Gallop began the interview before the recorded portion, then continued it once he and Mr. Liew were in the interview room. The interview had already been underway for several minutes before Constable Gallop remembered to caution Mr. Liew that he had a right to silence.

12 I concluded that RCMP officers breached Mr. Liew’s s. 10(b) right in three ways. First, they failed to implement his right to counsel without delay. Second, they failed to hold off eliciting evidence from him until after he had spoken with duty counsel. Third, they failed, in the special circumstances of this case, to ensure that he understood his rights before conducting their interview of him – a fact that was particularly important in light of the decision not to provide an interpreter for the interview.

13 I also found that Mr. Liew’s s. 8 right to be secure against unreasonable search and seizure was breached.

Breach of Mr. Liew’s s. 8 Right

14 At the time of his arrest, Mr. Liew had a cell phone in his possession. Constable Gallop seized the phone and searched it, purportedly as an incident to Mr. Liew’s arrest. I held that the search was not a lawful search incident to arrest. The law in this area is unsettled. Constable Gallop, in testimony during a voir dire, described the extent of his search as being “cursory”. He testified that his understanding was that he was entitled to conduct a “cursory” search of a cell phone as an incident to arrest. I found that the limits of a search of a cell phone, incident to arrest, are more narrow than that, but even if Constable Gallop’s view was correctly held, I found that his search exceeded what might reasonably be considered cursory. He opened the phone and brought up its call history, which showed five recent calls. He wrote down the particulars of those calls – dates, times, names, and numbers. He then tried to search the phone’s text message history. He was stymied, however, because the phone utilized Chinese characters and he could not understand it. After trying unsuccessfully for some time, he gave up, for fear that he might erase important evidence. When he got back to the station he turned possession of the phone over to Constable Jean-Sebastien Renaud who would later have a Chinese-speaking officer change the language on the phone so that he could conduct a full, but warrantless, search of the phone’s contents.

15 Of particular significance, the call history of Mr. Liew’s phone showed that his phone had contacted Mr. Yu’s cell phone at the time the shipment was being unloaded just prior to Mr. Liew’s arrest. That evidence provided an important link between Mr. Liew and Mr. Yu.

The Warrant

16 On February 26, 2010, the police applied for a warrant to search 18 Eden. A statutory pre-requisite to the issuance of a warrant under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CSDA”), is that the police establish, on oath, that they have reasonable grounds to believe that, amongst other things, evidence of an offence under the CDSA is in the place sought to be searched.

17 The ITO in support of the warrant application rested primarily on two pillars. First, the police relied on the unconstitutionally obtained evidence of the phone call between Mr. Liew and Mr. Yu to connect Mr. Yu to the shipment arriving at 290 Yorktech. Mr. Yu ran a legitimate business from 290 Yorktech. His van was spotted parked near the location where the transport truck ultimately delivered the shipment – a fact that was innocuous in the absence of the phone call between Mr. Yu and Mr. Liew. Second, they relied on an assertion that Mr. Yu resided at 18 Eden with his aunt, Wendy Yu. Wendy Yu was strongly suspected in the importation of the cocaine because her name appeared on customs documentation connected to the wood shipment from Peru.

18 Regrettably, the RCMP failed to make full and frank disclosure in the ITO. They indicated that Wendy Yu’s driver’s license disclosed her address as 18 Eden. But they failed to indicate that her passport application disclosed a different address and a search of her social insurance number disclosed yet a third possible address. They failed to be candid about the fact that they were having difficulty determining where she currently lived. They bolstered their view that Wendy Yu lived at 18 Eden with surveillance on that residence. Constable Cobey, who swore the ITO, deposed that another officer identified Wendy Yu as a person seen driving away from 18 Eden while it was under police surveillance. But Constable Cobey failed to set out the circumstances in which that purported identification was made. Those circumstances cast considerable doubt on the reliability of the identification. Constable Cobey also failed to note that surveillance conducted the day after the purported identification put the identification in real doubt. Indeed, I found that the woman identified as Wendy Yu was, in all likelihood, not her.

19 I concluded that the ITO, as amplified on review, was so deficient that the issuing justice could not have granted the warrant on what was left. With that finding, the Crown conceded that the search of 18 Eden was warrantless and that all derivative evidence ought to be excluded.

20 It remains important, however, to consider events as they unfolded during the search, particularly as they relate to the arrest of Mr. Yu, which occurred when officers entered 18 Eden to exercise the warrant.

Breaches of Mr. Yu’s s. 10(b) Right

21 Corporal Fuhrman knocked on the front door of 18 Eden on March 1, 2010. He opened the screen door and walked into the front hallway (the inner door was open). He confronted Mr. Yu, seized his cell phone (which Mr. Yu had in his hand) and arrested him. He gave him his right to counsel and told him that free legal advice was available from a toll free number, but he did not provide the number. He asked Mr. Yu if he wanted to call a lawyer and Mr. Yu said yes. But Mr. Yu was not provided with a lawyer for several hours. Instead, Corporal Fuhrman sat Mr. Yu down and elicited evidence from him. He asked him whose cell phone it was that he had seized from Mr. Yu and he asked him questions about Wendy Yu.

22 Mr. Yu was then conveyed from 18 Eden in Markham, to the Milton detachment – again a drive of about one hour in length. He was lodged in a cell. He was provided access to an English speaking duty counsel about two hours after his arrest. About 30 minutes later, an officer concluded that Mr. Yu had not understood the content of the discussion with duty counsel and a second call was arranged, this time with a lawyer who spoke Mandarin and/or Cantonese. It had been four hours since his arrest by the time Mr. Yu was able to speak to a language appropriate duty counsel.

23 Again, despite the presence of special circumstances, officers failed to confirm that Mr. Yu ultimately did understand his rights. Officer Gallop interviewed him without an interpreter and ignored Mr. Yu’s protestations about his lack of proficiency in the English language.

24 Similar to the situation with Mr. Liew, I concluded that RCMP officers breached Mr. Yu’s s. 10(b) right in three ways. First, they failed to implement his right to counsel without delay. Second, they failed to hold off eliciting evidence from him until after he had spoken with duty counsel. Third, they failed, in the special circumstances of this case, to ensure that he understood his rights before conducting their interview of him – again, a particularly important fact, in light of the decision not to provide an interpreter for the interview.

ANALYSIS:

25 I intend to examine the remedies sought by the Defendants in four distinct parts. I will begin with a consideration of Mr. Yu’s challenge to the warrant the police obtained to search 18 Eden. I will deal with it first because it is the easiest to deal with and does not directly engage s. 24(2) of the Charter. I will then briefly discuss the principles applicable to an application to exclude evidence under s. 24(2). Those principles will then be applied to the facts and circumstances of this case, starting with the request to exclude the statements of the accused, followed by the request to exclude the evidence obtained from Mr. Liew’s phone.

Part One: The Challenge to the Warrant

26 A warrant issued pursuant to the provisions 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] 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.

27 In my March 27, 2012, ruling I summed up my analysis of Mr. Yu’s challenge to the warrant as follows, at para. 167:

…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.

28 The law appears clear: unconstitutionally obtained evidence must be excised from an ITO: see R v. Plant, [1993] 3 S.C.R. 281 at para 26; R. v. Mahmood, 2011 ONCA 693 at para. 116; and R. v. Sonne, 2011 ONSC 6743 at para. 23. Following these authorities, I must excise the evidence obtained from Mr. Liew’s phone from the ITO. Absent that evidence, as I have already found, the ITO, as amplified on review, did not contain sufficient evidence to support the issuance of the warrant. In other words, I find that the issuing justice could not have granted the authorization and the warrant falls. As I noted above, the Crown conceded that if the warrant fell, the warrantless search of 18 Eden was unlawful and any evidence obtained from that search must be excluded from the trial.

29 I will move on to a consideration of the s. 24(2) remedies sought by the Defendants.

Part Two: The Principles Applicable to s. 24(2) of the Charter

30 Section 24 of the Charter provides as follows:

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

31 To determine whether evidence obtained as a result of a Charter breach should be excluded under s. 24(2) of the Charter, Courts are bound to apply the test recently articulated by the Supreme Court in R v. Grant, 2009 SCC 32 (“Grant”) at para. 71:

[U]nder s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

32 I will consider these three branches in turn. In doing so, I will be mindful that the purpose of s. 24(2), as described by the Supreme Court in Grant, is to maintain the good repute of the administration of justice, and not to punish the police or compensate the accused: R. v. Little, 2009 O.J. No. 3385 (S.C.J.). As Justice Cromwell confirmed in R. v. Cote, 2011 SCC 46, section 24(2) is “generally concerned with whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence” (para. 45).

33 Assessing the seriousness of a breach involves a consideration of whether admitting the evidence in question would send a message to the public that the Court condones serious misconduct (Grant, para. 72). Sometimes it is necessary that Courts dissociate themselves from unlawful conduct – and the fruits of such unlawful conduct - where failing to do so would bring the administration of justice into disrepute. It follows that “the more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the Courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law” (Grant, para 72).

34 The majority in Grant recognized that misconduct by state agents covers a wide spectrum, from inadvertent or minor violations at one end, to wilful or reckless disregard for the Charter rights of accused persons at the other end. As misconduct approaches the wilfulness end of the spectrum, exclusion of evidence flowing from such misconduct approaches a level of inevitability. In addition, “evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion” (Grant, para. 75).

35 Certain conduct may have the effect of attenuating the seriousness of state misconduct. For instance, where there is a need to prevent the disappearance of evidence or where the police have acted in good faith. Where police have acted in a wilfully blind manner, however, they cannot be said to have acted in good faith. Nor should the concept of good faith be used to excuse or encourage ignorance of Charter standards (Grant, para. 75).

36 Consideration of the second branch of the s. 24(2) analysis requires the court to evaluate the extent to which the breach actually undermined the interests protected by the Charter right that was infringed. Again, there is a spectrum of possible impacts, ranging from “fleeting” or “technical” all the way to “profoundly intrusive” (Grant, para. 76). Again, the closer the impact falls towards the “profoundly intrusive” end of the spectrum, the more likely Courts are to exclude the evidence. As the majority in Grant recognized, “the more serious the impact…the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” (Grant, para. 76)

37 A s. 24(2) analysis necessitates consideration of the interests of society as well as those of the accused. The accused is not the only one whose interests are affected by a determination to admit or exclude evidence. Canadian society generally expects that criminal charges will be adjudicated on their merits and that those who transgress the law will be brought to trial and dealt with according to the law (Grant, para. 79). There are frequent cries of disappointment and, sometimes, even outrage, when evidence is excluded in serious trials, or where charges do not proceed – as in this case – where evidence has been excluded. It is possible to do more harm than good to the long term reputation of the criminal justice system by excluding evidence rather than admitting it, notwithstanding the presence of misconduct on the part of the state.

38 But this third branch of the s. 24(2) analysis is not about appealing to one interest group or another. It is, at its heart, concerned with promoting the very purpose of a trial – to seek out the truth. Ultimately, therefore, the question to be answered is whether “the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (Grant, para. 79). The Court must consider factors which include, but are not limited to, the reliability of the evidence in question, as well as the importance of the evidence to the prosecution’s case. The public interest is not, for instance, served by admitting unreliable evidence, as may be the case where a Charter breach compels a person to talk. On the other hand, the exclusion of highly reliable evidence may impact more negatively on the reputation of the justice system where the prosecution’s case is gutted in the result (Grant, para. 83).

39 At the end of the day, it is the Court’s task to consider the evidence under all three branches of the Grant analysis and to determine, on balance, whether the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute (Grant, para. 85). There is no mathematical formula to be applied, though patterns do tend to emerge, as the Supreme Court recognized in Grant, with respect to particular types of evidence.

40 One final note before I proceed to apply the principles articulated in Grant. The standards set out in Grant are to be assessed objectively. In other words, by considering “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute” (Grant, para. 68).

Part Three: The Principles Applied – Statements of the Accused

41 Statements taken from accused persons, in breach of the Charter, are frequently excluded from evidence. As the majority in Grant noted,

There is no absolute rule of exclusion of Charter-infringing statements under s. 24(2), as there is for involuntary confessions at common law. However, as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter, on the ground that admission on balance would bring the administration of justice into disrepute.

42 There are many parallels in the circumstances of the taking of statements from Mr. Liew and Mr. Yu. Neither was provided with a right to counsel without delay. In fact, significant delays occurred in arranging contact with duty counsel in the case of each accused. Moreover, the RCMP failed to hold off eliciting evidence from each accused pending their contact with counsel. Subsequently, each accused was interviewed, without the benefit of an interpreter, and without the RCMP confirming that he had understood his rights before being questioned.

43 Crown counsel conceded that the failure to implement the right to counsel without delay and the failure to hold off were serious breaches of the s. 10(b) rights of the accused. She asserted, however, that the breaches were attenuated by the fact that each accused had an opportunity to speak to duty counsel in his own language prior to making a statement. She argued that the phone call to duty counsel created a break in the causal chain between breaches and statements. In other words, the Crown submitted that, while the breaches were serious, the statements are saved by the intervening phone calls with counsel. The Court can assume, she argued, that the accused would have been advised not to speak to the police and yet each voluntarily decided to do so anyways.

44 There is much to be said for the Crown’s argument. It is indeed significant that each accused ultimately did have an opportunity to speak with counsel before making their statements. But I am not persuaded that the discussions with duty counsel are sufficient to save the statements of either accused.

45 My difficulty with the circumstances of this case is with the overall pattern of conduct on the part of the RCMP. This was an extensively planned operation involving numerous officers. In the case of each accused, the police knew in advance that they would be making arrests in Markham and transporting detainees to Milton. They knew, or ought to have known, that they were dealing with individuals of Asian descent. Yet, apparently, no consideration was given as to how to implement the right to counsel for the accused without delay. Not a single one of the officers involved in the operation – at least none who gave evidence – had the 1-800 number for Legal Aid duty counsel in his notebook. No prior arrangement was made, or apparently even considered, in terms of arranging language-appropriate duty counsel. No arrangement was made for the accused to have the services of an interpreter, even though, in the case of Mr. Liew, Officer Gallop indicated that one would be made available at the station.

46 The eliciting of evidence from each accused immediately following his arrest was also an obvious and serious breach of the Charter-protected rights to counsel and to silence of each accused. What is particularly troubling is that all of the breaches that occurred in Mr. Liew’s case, in terms of his s. 10(b) rights, were repeated a month later when Mr. Yu was arrested. There was apparently no recognition that mistakes had been made and no effort made to do better.

47 I am satisfied that the actions of the RCMP in relation to this operation demonstrate, at the very least, a serious lack of training. Constable Gallop – who played a central role in the operation – was asked under cross-examination by Mr. Gold if he understood the informational and implementational components of the s. 10(b) rights of the accused. He conceded that he was not familiar with those terms. The Charter is 30 years old. R. v. Bridges, [1990] 1 S.C.R. 190, was decided over 20 years ago. These are not abstract concepts. The public is entitled to expect that police officers arresting suspects at gunpoint and subsequently questioning them in relation to serious criminal offences will be familiar with their obligations under s. 10(b) and that they will discharge their duties in a manner that does not jeopardize investigations and prosecutions.

48 In relation to the first branch of the Grant analysis, I find the Charter-infringing conduct of the police to have been very serious indeed.

49 The second branch of the analysis – the actual impact on the interests of the accused – is perhaps where the Crown’s arguments are more applicable. The assertion of the Crown was that the impact on the rights of the accused was not that significant or compelling because of the intervening calls to duty counsel. I am unable to accept that submission for the following reasons:

(i) Both accused experienced considerable delays in speaking to counsel. During those delays, evidence was elicited from each of them. The Crown concedes that such evidence, elicited prior to consultation with counsel, must be excluded. But that is not, in my view, a sufficient remedy in the circumstances of this case. Perhaps, had the implementational delays been the only breaches, the statements might have been saved by the eventual discussions with counsel. They were not, however, the only breaches and must not be viewed in isolation. The cumulative impact on the accused, arising from all breaches, must be assessed. I find that the cumulative impact on each accused was significant. Moreover, in the face of so many breaches, a failure by the Court to signal that the conduct of the police in this case was unacceptable, would run the risk of instead signalling to the public that Charter rights are, in the final analysis, hollow; and,

(ii) The Charter breaches, as I have indicated, did not end prior to the calls each accused had with duty counsel. I found, in the case of each of Mr. Liew and Mr. Yu, that the police, in the special circumstances of this case, had an obligation to ensure that the accused had understood their rights before questioning them. They failed to do so. The accused were then questioned extensively by Officer Gallop. The transcripts of those interviews demonstrate that each expressed considerable concern about his ability to understand and communicate in the English language. Neither was provided with the assistance of an interpreter, even though Officer Gallop indicated that it would not have been difficult to make such an arrangement. Each accused ultimately made inculpatory comments in their statements.

50 In summary, with respect to the first two branches of the Grant analysis, I am satisfied that the Charter breaches were very serious and that the impact on both accused was also serious. I must now weigh into the balance, the societal interest in the adjudication of this case on its merits.

51 The third branch of the Grant analysis involves an assessment of the public’s interest in having the charges determined on their merits. In this instance, there are reliability concerns in relation to the statements of each accused. Those concerns arise because (1) there is no assurance that the accused understood their rights before they were questioned; and (2) there was an absence of interpretation during the interviews of the accused. In the voluntariness inquiry, reliability of the statements was in issue, but was ultimately accepted as a matter going to the weight to be given to the statements, rather than a function of voluntariness. But in the s. 10(b) analysis, reliability is an issue to be considered in the context of the Defence applications to exclude the statements. The public interest, and the truth-finding function of the trial, is not served by admitting evidence of questionable reliability.

52 The inculpatory statements made by each accused while being interviewed by Constable Gallop were not, as I understand it, critical components of the Crown’s case. The statements were not meant to be used as part of the Crown’s case, in chief, but only intended to be utilized for impeachment purposes had the accused testified. Accordingly, they were at once of debatable reliability and of limited impact to the Crown’s case.

53 In my view, the balancing exercise mandated by Grant is easily done in terms of the statements of the accused. The Charter-infringing conduct of the police was very serious. The impact on the rights of the accused was also serious. Concerns under the first two branches of the analysis far outweigh any attenuating factors considered under the third branch. In the result, the statements must be excluded.

54 I will go on to consider the evidence obtained from Mr. Liew’s cell phone.

Part Four: The Principles Applied – Search of Mr. Liew’s Cell Phone

55 The same Grant analysis must be applied to the evidence obtained from Mr. Liew’s cell phone, but I intend to examine the three branches of the analysis in reverse order.

56 There is little, if any, dispute that the evidence obtained from the phone – specifically the call history – is reliable. It was also critical evidence to the Crown’s case. Without it, the warrant to search Mr. Yu’s residence was successfully challenged and any evidence obtained from the search of the residence lost to the Crown. In fact, when I initially advised counsel that I was not going to admit the cell phone evidence, the Crown indicated that, in the circumstances, they would not be calling any evidence at trial. The Crown invited the Court to immediately arraign the accused and enter acquittals on all charges.

57 Unlike the situation surrounding the statements of the accused, there are very compelling reasons not to exclude the cell phone evidence, under the third branch of the s. 24(2) analysis. The charges against the accused are serious. This case involves the importation of over 30 kg of cocaine into Ontario. Illicit drugs, like cocaine, the crimes that tend to be associated with its trade, and its devastating effects on the lives of those who become addicted to it, are a scourge on Canadian society. There is a strong public interest in seeing those individuals involved in the importation and trafficking of cocaine found out and prosecuted. There is a strong societal interest in preserving evidence that is reliable and crucial to the prosecution of those charged with serious offences of this nature.

58 At the same time, however, police misconduct can, at times, rise to a level where it is, on balance, necessary for the Court to dissociate itself from the fruits of the unlawful conduct, notwithstanding the otherwise compelling societal interests. This, in my view, is such a case.

59 There is no dispute that the impact on the Charter-protected right of Mr. Liew to be free from unreasonable search was significant. He had a high expectation of privacy in the personal contents of his phone. But what ultimately tips the balance in this instance is the seriousness of the breaches. Again, it is necessary to consider the breaches as a whole, rather than simply individually, when considering the Defence applications.

60 Viewed in isolation, the cell phone search was, arguably, not at the more serious end of the spectrum of misconduct. The Crown argues that this is a similar situation as that facing the Court in R. v. Little, as above. The law is clearly unsettled in terms of the limits of a search of a cell phone incident to an arrest.

61 In Little, the police seized a handheld computing device known as a Treo. Strictly speaking, Little was not a case involving a search incident to arrest. Instead, the police lawfully had the device in their possession. They conducted a warrantless search, which Justice Fuerst found to be unlawful. Fuerst J. went on to hold, however, that the actions of the police in searching the Treo without a warrant fell at the lower end of the spectrum of police misconduct. She characterized the conduct of police as follows, at para. 24:

…the conduct of the police in committing the Charter breach was not deliberate, brazen, flagrant, or egregious. It was imprudent. The police acted as they did because they failed to treat the Treo as a personal electronic storage device or "mini-computer", distinct in nature from a notebook, briefcase or purse. They could have taken a more cautious approach to the Treo and obtained a warrant, as they did before searching computers they seized. In fairness to them, there was no clear binding jurisprudence that would have directed them to treat the Treo in that way. Their conduct cannot be characterized as illustrative of bad faith. And, as in Grant, this decision will render similar conduct by the police less justifiable in the future.

62 I accept and agree with the Crown’s submission that the unsettled state of the law is an attenuating circumstance. That said, there are differences between this case and Little that are not only significant, but in my view are determinative.

63 First, the search of Mr. Liew’s cell phone occurred in February 2010. At that time, the RCMP would have had the benefit of not only the decision in Little, but also the Superior Court decision in R. v Polius, [2009] O.J. No. 3074. In Polius, Justice Trafford held that police could conduct a “cursory search” of a cell phone, at the time of arrest, to establish an objective reason to support the belief that the item may afford evidence of a crime. Absent exigent circumstances, however, Trafford J. directed that the police must obtain a warrant before searching the contents of a cell phone.

64 Office Gallop used the language of Polius when he testified. He said he conducted a “cursory search”. I found otherwise. He looked at and made a record of the entire call history in Mr. Liew’s phone. He attempted to look at other contents of the phone, including text messages, but was thwarted because of the language barrier. The law may very well be unsettled. At the time of Mr. Liew’s arrest, Constable Gallop understood that he was entitled to conduct a cursory search incident to arrest. But he went much farther than that, either deliberately, or without any real consideration of what the limits of a cursory search were. Of course the problem was compounded when Officer Renaud subsequently conducted a very fulsome search of the phone, again without a warrant.

65 Second, and as I have said above, the breach of Mr. Liew’s s. 8 right cannot be viewed in isolation. It is part of a pattern of misconduct. By way of brief summary:

(i) Mr. Liew was arrested at gunpoint. He was informed of the charges against him and said he didn’t understand. He was told someone would explain them to him at the station in his own language. No one ever did;

(ii) His cell phone was seized and searched at the time of arrest. Officer Gallop mis-described the search as “cursory”, when in fact he conducted as full a search as circumstances would allow. Subsequently, a further full search was conducted by another officer without a warrant;

(iii) After his arrest Mr. Liew was placed in the back of a police car and driven from Markham to Milton. During the one hour drive the police breached his s. 10(b) right by eliciting evidence from him before he had a chance to speak to counsel;

(iv) Despite knowing well in advance that an arrest would be made in Markham, the police made no prior arrangements for contact between the detained person and counsel. They breached Mr. Liew’s s. 10(b) right to counsel by taking 3 hours to put him in touch with duty counsel;

(v) Following the discussion with duty counsel, the police failed to ensure that Mr. Liew understood his rights and proceeded to interview him. No interpreter was provided despite Mr. Liew’s obvious language difficulties;

(vi) The police obtained a warrant to search Mr. Yu’s residence. They obtained the warrant on the basis of an ITO that failed to provide full and frank disclosure. In addition, they relied upon the evidence unlawfully obtained through the cell phone search;

(vii) Mr. Yu was arrested in his home and questioned before he had a chance to speak with counsel, thereby breaching his s. 10(b) right;

(viii) He was transported from Markham to Milton and, despite the police having had substantial time to make arrangements to implement his contact with counsel, they failed to do so for about four hours, thereby further breaching his s. 10(b) right; and,

(ix) The police then interviewed Mr. Yu, without an interpreter and without having confirmed that he understood his rights.

66 The pattern of misconduct referenced above demonstrates, in my view, either a serious lack of training, or a cavalier attitude towards the Charter-protected rights of accused persons, or both. Whatever arguments might be marshalled in favour of admitting the cell phone evidence, it is inextricably caught up in the overall pattern of misconduct evident here. The circumstances are such that the Court must dissociate itself from all of the fruits of that misconduct. A failure to do so would undoubtedly undermine public confidence in the rule of law.

CONCLUSION:

67 In the result, the statements of the accused are excluded, as is any evidence emanating from Mr. Liew’s cell phone. The unlawfully obtained cell phone evidence must be excised from the ITO. In turn, I find that there was not sufficient evidence in the ITO, as amplified on review, to support the granting of the warrant to search Mr. Yu’s personal residence. Given that finding, on consent, all derivative evidence flowing from the execution of the warrant is excluded.

68 The pre-trial applications in this case were challenging. I would be remiss if I did not thank all counsel for their thorough and thoughtful preparation and for their vigorous, but highly professional and effective advocacy.

Boswell J.

Released: May 25, 2012

[1] I found, in my March 27, 2012, ruling, that there was no evidence during the voir dire that the duty counsel arranged for Mr. Liew, namely Mr. Chan, spoke a language that Mr. Liew understood. Counsel have corrected me and confirm that an agreed fact was that Mr. Chan spoke one of the several Chinese dialects that Mr. Liew was fluent in.