Court File and Parties

Court File No.: CR-19-90000531-0000 Date: 2023-03-24 Superior Court of Justice - Ontario

Re: His Majesty The King And: Manh Bui

Before: P. J. Monahan J.

Counsel: S. Gardezi, for the Crown R. Pillay, for the Defendant

Heard: December 14, 2022

Ruling on Charter Application

[1] On August 14, 2018, an unidentified male fired gunshots at the respondent, Mr. Bui, as he ran away from his motor vehicle, near the intersection of Black Creek Drive and Lawrence Avenue West in Toronto. Police subsequently located Mr. Bui’s vehicle parked nearby, and seized it.

[2] On August 26, 2018, police obtained a search warrant and searched Mr. Bui’s vehicle. Inside the vehicle police located several pieces of Mr. Bui’s identification, 2.7 grams of cocaine, 4 grams of what appeared to be MDMA, and $830 in cash.

[3] On August 28, 2018, police obtained a second search warrant and searched Mr. Bui’s apartment, where they located a loaded firearm, as well as a quantity of cocaine.

[4] Mr. Bui was subsequently charged with a number of firearms and drug offenses.

[5] Mr. Bui argues that the evidence obtained through these searches was obtained in violation of his Charter s. 8 right to be free from unreasonable search and seizure. He further argues that the admission of the evidence would tend to bring the administration of justice into disrepute, and that the evidence should therefore be excluded pursuant to s. 24(2) of the Charter.

[6] Mr. Bui challenges the reasonableness of the searches on three separate grounds.

[7] First, he alleges that the seizure of his motor vehicle on August 14 of 2018, was without warrant and that the Crown has failed to justify or provide grounds for that seizure. The seizure on August 14, 2018 was therefore unlawful, as was the continued detention of the vehicle for the next 12 days before a search warrant was obtained. As a result, any actions taken by the police based on, or following on from that seizure would also be unlawful, including the search of his motor vehicle on August 26, 2018 and the subsequent search of his apartment on August 28, 2018.

[8] Secondly, Mr. Bui challenges the validity of the warrant that was issued authorizing the search of his motor vehicle on August 26, 2018. Mr. Bui argues that even if the seizure of his motor vehicle was lawful, the ITO did not provide a sufficient basis for the issuance of a warrant to search his vehicle. Therefore, the search of the motor vehicle was without warrant and was unjustified, and any evidence found was obtained unlawfully.

[9] Third, Mr. Bui challenges the issuance of the second warrant to search the apartment. He argues that even if the search of the motor vehicle was lawful, the ITO purporting to authorize the search of his apartment did not provide a proper basis for the issuance of the second warrant. Therefore, the search of the apartment was warrantless and was also unlawful.

[10] Mr. Bui further argues that the evidence obtained from the searches should be excluded pursuant to s. 24(2), relying on the framework governing s. 24(2) set out in R. v. Grant, 2009 SCC 32.

[11] The Crown’s position is that the role of this Court is merely to ascertain whether the two search warrants could have issued and it is not for this court to substitute its view for the view of the issuing justice. In the Crown’s submission, the two ITOs provided a sufficient basis for the issuance of the two warrants. Given that the warrants could have issued, the evidence was lawfully obtained pursuant to those warrants and there was no violation of Mr. Bui’s rights under s. 8 of the Charter. In the alternative, even if the evidence was obtained in a manner contrary to s. 8 of the Charter, the Crown argues that the evidence should nevertheless be admitted because its admission would not bring the administration of justice into disrepute. The Crown advances this alternative argument on the basis of the seriousness of the offences, the large amount of cocaine found in Mr. Bui’s apartment, along with a loaded prohibited firearm. If the evidence is not admitted, the prosecution would be brought to an end which, in the Crown’s view, would undermine public confidence in the administration of justice.

[12] Let me deal first with the warrantless seizure of the motor vehicle on August 14, 2018.

[13] The Crown has not produced any evidence supporting the reasonableness of the seizure Mr. Bui’s motor vehicle. The Criminal Code, as well as the common law, does provide authority for police officers to seize evidence without warrant. Crown counsel pointed out that s. 489(2) of the Criminal Code permits a peace officer to seize anything which the officer believes, “on reasonable grounds”, will afford evidence in respect of an offence against an Act of Parliament, even without obtaining a warrant.

[14] The requirement that the peace officer have “reasonable grounds” before seizing property reflects the common law test, as set out by Brooke JA of the Court of Appeal in R. v. Mac:

Absent a warrant or some other statutory authority, unless the officer had reasonable and probable grounds for believing that a crime had been committed and the moneys were the fruit of that crime or were material evidence of that crime, he had no authority to seize them.

[15] Brooke JA further points out that mere suspicion is insufficient to justify a warrantless seizure of property, and that property seized unlawfully must be returned to its lawful owner:

While [the officer] had good reason to be suspicious, I doubt that he had the requisite probable grounds empowering him to seize the moneys. If there was no authority to seize the money, there is no authority to retain it. Accordingly, it should be returned.

[16] Thus, both at common law and under s. 489(2) of the Criminal Code, peace officers cannot seize property simply because they think it might possibly afford evidence of a crime. Rather, they must have reasonable grounds to believe that the seizure of the property will afford evidence in respect of an offence.

[17] Applying this test to the facts of the present case, I note that the Crown has not provided any information as to who decided to seize Mr. Bui’s motor vehicle, or on what grounds. The only explanation of the seizure in the first ITO is a reference to the fact that Mr. Bui’s motor vehicle was driven a short distance from the location of the shooting to the area of Keele Street and St. Clair Avenue West, where it was parked. It is further stated that police located Mr. Bui’s motor vehicle and impounded it for further investigation.

[18] It is important to recognize that at this time the only offence that was being investigated was a shooting by an unidentified male, who had fired a handgun towards the driver of the subject motor vehicle. The police had no evidence to show that the driver of that motor vehicle had committed any crime. In fact, at the time of the seizure, the police did not even know the identity of the registered owner of the motor vehicle. I therefore see no basis upon which I could conclude that the police had reasonable and probable grounds to believe that seizure of this vehicle would provide evidence of the crime that was being investigated, namely the shooting by an unidentified male towards the driver of the subject motor vehicle.

[19] I am also troubled by the fact the motor vehicle was held for 12 days before a search warrant was sought in respect of the vehicle. Moreover, on August 16, 2018, two days after the seizure, Mr. Bui presented himself at the police station and identified himself as the owner of the seized motor vehicle. The ITO states that Mr. Bui did not consent to the search of his motor vehicle. But what the ITO does not explain is why the motor vehicle was not returned to Mr. Bui, its lawful owner, at that time. As Brooke JA noted in R. v. Mac, where there is no authority to seize property, there is no authority to retain it once the lawful owner is identified. Thus, not only was the original seizure unlawful, but the failure to return the motor vehicle to Mr. Bui two days later was also without legal authority.

[20] Quite apart from the lack of authority for the initial seizure of the vehicle, I further agree with Mr. Bui that the ITO did not provide a sufficient basis for the subsequent issuance of a search warrant to search the vehicle. The ITO describes Mr. Bui as having an extensive criminal record, and that he is believed to be involved in organized crime. But at this stage, there is no evidence that Mr. Bui has committed any crime. Obviously, the mere fact that Mr. Bui may have committed crimes in the past does not justify the police obtaining a warrant to search his motor vehicle.

[21] Perhaps in recognition of that fact, the ITO further claims that searching the vehicle may provide the police with evidence of the identity of the unidentified shooter. The ITO claims that it is possible that Mr. Bui’s vehicle may have been struck by shots fired by the shooter, and that evidence of same might be obtained through a search.

[22] The difficulty with this argument is that there is no evidence in support of the assertion that Mr. Bui’s vehicle was struck by the shots fired by the shooter. Witnesses at the scene did not suggest that Mr. Bui was in or around the vehicle when the shots were fired. Instead, Mr. Bui was running away across the street.

[23] No one saw the shooter touch the motor vehicle nor is there any evidence that the shooter was in the vehicle. It is speculative at best to suggest that the search of the vehicle would provide evidence leading to the identification of the shooter.

[24] The ITO offers a further justification for the search on the basis that in a number of previous investigations, individuals involved in organized crime have attached global positioning devices on a rival member’s vehicle. Given the fact that the police believed that Mr. Bui might be involved in organized crime, it was also possible that rival gang members might have attached a GPS device to his vehicle. Thus, the search of his vehicle might result in seizure of such a GPS device, which would then enable the police to identify persons who were attempting to shoot Mr. Bui.

[25] There is no evidence to suggest that that anyone had placed a GPS device on Mr. Bui’s motor vehicle. At its highest, the police might have had a suspicion that such a GPS device might be located But, as Dickson C.J. established in Hunter v. Southam, [1984] 2 SCR 145, a mere suspicion, or the possibility of finding evidence, is not the proper constitutional standard under s. 8 of the Charter. Rather, as Dickson CJ stated, “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure.”

[26] The fundamental difficulty with the ITO in this case is that it applied the wrong constitutional standard. The ITO proceeded on the basis that a mere possibility that evidence relevant to the crime under investigation (namely, the shooting) would be found through a search of Mr. Bui’s motor vehicle. But there was no reasonable or probable ground to believe that any such evidence of the crime under investigation would in fact be obtained.

[27] I therefore find that had the proper constitutional standard been applied, the warrant to search the vehicle could not have issued. Therefore, the search of Mr. Bui’s vehicle was warrantless, and the evidence was obtained in breach of Mr. Bui’s rights under s. 8 of the Charter.

[28] I turn now to consider whether the warrant for the search of Mr. Bui’s apartment was lawfully obtained. The ITO for this warrant relied on the fact that Mr. Bui was a drug trafficker and that drug traffickers tend to store drugs at their premises. Because Mr. Bui was likely a drug trafficker, it’s likely that there would be evidence of his drug trafficking at his residence.

[29] The basis for the statement that Mr. Bui was a drug trafficker in the ITO was the following:

i) the vehicle search yielded a quantity of cocaine and MDMA that was inconsistent with personal use;

ii) the cocaine and MDMA found in the motor vehicle was packaged for sale; and

iii) the drugs were found in a “hidden compartment” in the motor vehicle.

[30] At the voir dire, the drafter of the ITO acknowledged that the quantity of drugs seized could have been for personal use. He acknowledged that the statement in the ITO that the quantity of drugs found was inconsistent with personal use was in error.

[31] The statement in the ITO that the drugs found had been packaged for sale was also acknowledged by the affiant to be misleading. The affiant agreed that the cocaine was found in two or perhaps three bags, that it could have been purchased that way by Mr. Bui, and was not necessarily packaged for sale.

[32] The ITO’s reference to the drugs having been found in a “hidden compartment” was also misleading. The drugs were found in a compartment on the dashboard of the vehicle that was accessible simply by pressing on the dashboard. The compartment appears to have been installed by the manufacturer of the vehicle and, once pressed, opened up above the radio in the middle of the dashboard. It was therefore misleading to describe this compartment as being “hidden”.

[33] In short, the evidence that Mr. Bui was a drug trafficker based on the drugs seized in his motor vehicle was equivocal at best and a number of the statements in the ITO were either misleading or incorrect. There was a relatively small quantity of drugs which might have been purchased by Mr. Bui for his personal use, and the drugs were found in a compartment that was easily accessible on the dashboard, all of which should have been explained in the ITO.

[34] In her submissions, Crown counsel suggested that it was possible to excise these misleading statements, and yet the ITO would still have provided a sufficient basis for the issuance of a search warrant. The Crown relied upon a recent Court of Appeal decision, R. v. Kalonji, 2022 ONCA 415, where there was evidence that the target of the search, one Donaldson, had multiple firearms including a handgun, and that he resided in a particular location. The Court of Appeal held that it was reasonable to draw inferences based on the known facts, namely, that Donaldson had these firearms and that he resided at this location. It was reasonable to infer that evidence of these firearms would be found at the residence to be searched, and the warrant to search the residence was therefore lawfully issued.

[35] But Kalonji only assists the Crown in this case if there is credible evidence showing Mr. Bui to be a drug trafficker. As noted above, the evidence in that regard is equivocal at best, and the statements supporting that conclusion in the ITO are misleading or incorrect. In my view, if the misleading statements in the ITO are excised, then there are no reasonable and probable grounds to believe that Mr. Bui was a drug trafficker and, by extension, that evidence of his drug trafficking will be found at his apartment.

[36] I conclude, therefore, that the search warrant for the apartment could not have issued on the basis of a properly drafted ITO. The consequence is that the search of the apartment was without a proper warrant and was unreasonable, and a breach of Mr. Bui’s s. 8 Charter rights.

[37] The remaining issue is whether the evidence obtained should be excluded based on s. 24(2). I have little difficulty in concluding that the evidence should be excluded. The breaches in this case were extremely serious and occurred at all stages of the police investigation. Moreover, the result was a search of Mr. Bui’s apartment. It is well established that there is a high degree of privacy associated with one’s personal residence.

[38] In coming to the conclusion that the drugs obtained and the handgun should be excluded, I acknowledge the importance of combatting drug trafficking and gun crime, and that my ruling will inevitably result in the withdrawal of the charges in this case. But what tips the balance in favour of exclusion of the evidence is the number and the seriousness of the Charter breaches that occurred in the course of this investigation.

[39] Therefore, the evidence seized from the search of the motor vehicle or from Mr. Bui’s apartment cannot be admitted at trial.

P. J. Monahan J.

Orally Released: December 14, 2022

Endorsement Released: March 24, 2023