COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

United States of America v. Lopez-Turatiz,

2014 BCCA 39

Date: 20140131

Docket:  CA039463

Between:

Attorney General
of Canada

on behalf of the
United States of America

Respondent

(Applicant/Requesting State)

And

Leandro Lopez-Turatiz

a.k.a. Chino

Appellant

(Respondent/Person
Sought)

And Between:

Leandro Lopez-Turatiz

a.k.a. Chino

Applicant

And

Minister of
Justice

Respondent

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Tysoe

On appeal from:  An
order of the Supreme Court of British Columbia, dated October 7, 2011 (
U.S.A.
v. Lopez-Turatiz
, 2011 BCSC 1336,
Vancouver Docket No. 25414), and

On
judicial review from:  An order of surrender issued by the Minister of Justice
on April 3, 2012

Counsel for the Appellant/Applicant:

M.B. Rankin

Counsel for the Respondents:

S.M. Repas

Place and Date of Hearing:

Vancouver, British
  Columbia

October 21, 2013

Place and Date of Judgment:

Vancouver, British Columbia

January 31, 2014

Written Reasons by:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Tysoe

Summary:

The United States sought
L.-T.s extradition on a charge of premeditated first degree murder.  The
prosecution is based on circumstantial evidence.  Following L.-T.s committal
by an extradition judge, the Minister of Justice ordered his surrender on that
charge.  L.-T. appealed the committal and sought judicial review of the
Ministers decision.  Held:  Appeal and application for judicial review
dismissed.

The extradition judge did
not err in refusing to order disclosure with respect to the forensic evidence
contained in the record of the case (i.e., the collection and analysis of blood
samples and fingerprint examination).  L.-T. was unable to point to anything
that could undermine the accuracy and reliability of that evidence.

The Minister did not err in
declining to weigh the strengths and weaknesses of the evidence.

The possibility that the
prosecutor might seek to amend the charge to include an allegation of felony
murder was so remote that it was not a basis for refusing surrender.  It was,
accordingly, unnecessary to decide whether the fact that the constructive
murder provisions of the Criminal Code, the Canadian equivalent of felony
murder, have been held unconstitutional, precludes surrender on a felony murder
charge.  On the arguments presented it was both unnecessary and impossible to
decide whether the rule of specialty would preclude the prosecutor from seeking
to amend without Canadas consent.

Reasons for Judgment of the Honourable
Mr. Justice Frankel:

INTRODUCTION

[1]

The United States of America seeks to extradite Leandro Lopez-Turatiz to
stand trial in the State of Nevada on a criminal complaint charging him with premeditated
first-degree murder.  After Mr. Lopez was committed for extradition on the
Canadian offence of Murder, the Minister of Justice ordered his surrender on
the charge set out in the complaint.

[2]

Pursuant to s. 49 of the
Extradition Act
, S.C. 1999,
c. 18, Mr. Lopez appeals from the order of committal on the basis
that the extradition judge erred in dismissing his application for additional
disclosure relating to forensic evidence tendered at the extradition hearing.
In addition, he applies, pursuant to s. 57 of the
Extradition Act
, for
judicial review of the order of surrender.  His primary ground on the review is
that the Minister erred by surrendering him for trial in a jurisdiction where a
person can be convicted of murder under the felony murder rule, a rule which
has been held unconstitutional in Canada.  Mr. Lopez further says the
Minister erred by declining to consider the weakness of the prosecutions case.

[3]

For the reasons that follow, I would dismiss both the appeal and the
application for judicial review.

THE
PROSECUTIONS CASE

[4]

The State of Nevada alleges Mr. Lopez shot and killed Francisco
Lambert-Cordero at a residence in Las Vegas and then moved Mr. Lamberts
body to another location. The evidence against Mr. Lopez is circumstantial.
There are no witnesses who can give evidence directly implicating him in the
shooting.

[5]

The record of the case (ROC) and supplemental record of the case (SROC)
filed by the Attorney General of Canada at the extradition hearing set out, in
summary form, the evidence available to the Nevada prosecutor.  That evidence
discloses the following:

(a)      Mr. Lopez and Mr. Lambert
were friends who arrived in Florida from Cuba in January 2007.  Mr. Lambert
remained in the Miami area and Mr. Lopez moved to Las Vegas;

(b)      In December 2008, Mr. Lopez
travelled to Miami to meet Leonardo Torres-Machado along with Mr. Lambert.
Mr. Lopez and Mr. Lambert used Mr. Torres to purchase a white,
2001 four-door Mercedes-Benz, which the three of them used to drive to Las
Vegas;

(c)      Mr. Torres rented a
residence on Collingwood Street in Las Vegas for Mr. Lopez and Mr. Lambert
because neither of them had proper identification.  Mr. Torres never
returned to the residence after that;

(d)      Mr. Torres
registered the Mercedes-Benz in his own name in Nevada, using the Collingwood
Street address;

(e)      The Mercedes-Benz was the only
vehicle the landlord of the Collingwood Street residence saw being driven by Mr. Lopez,
Mr. Lambert, and Mr. Torres;

(f)       On May 19, 2009, police
officers who responded to a report of a fire in the Las Vegas Valley found burnt
bed sheets with blood stains.  The person who reported the fire had seen a white
vehicle leaving the area;

(g)      On May 21, 2009, a civilian
discovered Mr. Lamberts body in a remote area near Las Vegas covered with
pine boughs.  That area is some distance from where the burning sheets were
found.  Based on the state of the body, detectives with the Las Vegas
Metropolitan Police Department (the LVMPD) who attended at the scene
estimated it had been placed there within the preceding 48 hours;

(h)      An autopsy conducted by a
forensic pathologist determined that Mr. Lambert died from a bullet wound
to the back of his head;

(i)       On May 21, 2009, Mr. Lopez
called Mr. Torres and told him to discontinue the utilities, electricity
and gas services at the Collingwood Street residence because Mr. Lambert
had returned to Florida;

(j)       Mr. Lopez introduced
Yurisleivy Morales to the landlord of the Collingwood Street residence as the
person who would be taking over the lease as of May 23, 2009;

(k)      On May 27, 2009, Mr. Lopez
went to Mr. Torress residence wanting to sell him the Mercedes-Benz.  Mr. Lopez
again told Mr. Torres that Mr. Lambert had returned to Florida;

(l)       On May 29, 2009, LVMPD
detectives executed a search warrant at the Collingwood Street residence, where
they found:

(i)       Mr. Morales;

(ii)      a dirty and unkempt premises;

(iii)      a
marihuana grow-operation;

(iv)     in the dining room area which
appeared to have been recently cleaned, blood spatter (i.e., a pattern
consistent with the movement of a body or object shedding blood); and

(v)      a latent handprint, in blood, on
a garage wall;

(m)     A LVMPD crime-scene investigator
collected swabs of blood from the walls, baseboards, staircase carpet and
handprint at the Collingwood Street residence;

(n)      A LVMPD forensic scientist determined
that the blood from the residence and the burnt sheets matched that taken from Mr. Lamberts
body at the autopsy;

(o)      A LVMPD latent-print examiner
determined that prints in the blood on the garage wall matched those of Mr. Lopez;
and

(p)      On
July 13, 2009, LVMPD detectives located the Mercedes-Benz.  In the trunk they
found two suitcases which contained identification and clothing belonging to Mr. Lopez
and Mr. Lambert.

COMMITTAL APPEAL

Reasons for Committal

(2011 BCSC 1336)

[6]

The extradition hearing took place in the Supreme Court of British
Columbia before Associate Chief Justice MacKenzie (as she then was).  She
committed Mr. Lopez for extradition on October 7, 2011.

[7]

In opposing committal, Mr. Lopez took the position that the
evidence referred to above was not sufficient to warrant his committal for the
Canadian offence of murder (
Criminal Code
, R.S.C. 1985, c. C-46,
s. 229).  More particularly, he submitted that it was lacking with respect
to the issues of identification and
mens rea
.  As Mr. Lopez no
longer advances those arguments, I will only refer to a few passages of the
extradition judges reasons.

[8]

With respect to identification, the judge stated:

[47]      The evidence permits the following reasonable
inferences:  Mr. Lambert was killed at the Residence; Mr. Lopez and
very few others had ties to the Residence; Mr. Lopez was present at the
Residence at the time, or close to the time of Mr. Lamberts death; Mr. Lopez
had contact with a significant amount of Mr. Lamberts blood; and that Mr. Lopez
controlled access to the vehicle used to transport Mr. Lamberts body to
the remote location.

[48]      This hearing is not a
trial where guilt must be proved beyond a reasonable doubt; instead it is a
proceeding which requires the application of the s. 29(1)(a
) prima facie
test (as amplified by [
United States of America v. Ferras
, 2006 SCC 33,
[2006] 2 S.C.R. 77) to the summary of the evidence.  All the evidence discussed
above properly forms the basis for reasonable inferences upon which a
reasonable, properly instructed jury could find that Mr. Lopez was the
offender.

[9]

With respect to
mens rea
, she stated:

[49]      Again, based on the evidence
summarized in the Records, Mr. Lopezs assertion that the Requesting
States evidence consists of mere conjecture and speculation is without merit.
This was a homicide in which a jury could infer that the offender had the
intent to kill Mr. Lambert.  Mr. Lambert was shot in the back of the
head; there could be little suggestion of accident, or self-defence.  The
offender then tried to conceal his involvement in the homicide in the manner
described above.

The evidence of the post-offence
conduct is circumstantial evidence of guilt of manslaughter but is not evidence
on which a jury could infer
the
mens rea
for murder.  However, the nature of the wound (gunshot) and its location
(through
the back of the head) is evidence from which the
specific intent required for murder could be inferred.

[50]      Finally, a strong inference arises
that Mr. Lopez knew of Mr. Lamberts death because his handprint
depicted in Mr. Lamberts blood was on the garage wall of the Residence.
Also, more than a week after Mr. Lamberts death, Mr. Lopez told Mr. Torres
that Mr. Lambert had left for Miami.  In all the circumstances, it is
reasonable to infer therefore that he did so because he killed Mr. Lambert.

. . .

[52]      Although
other inferences may be open on the evidence, it is reasonable to infer that Mr. Lopez
shot Mr. Lambert in the back of the head, tried to clean up blood from the
crime scene, transported the body away in the white Mercedes and dumped it in a
remote location.  Furthermore, it is reasonable to infer that he lied to Mr. Torres
about the whereabouts of Mr. Lambert in order to hide his role in Mr. Lambert's
homicide.

The Disclosure
Application

[10]

During the extradition hearing Mr. Lopez sought an order for
disclosure with respect to the forensic evidence relating to the fingerprints
and blood found on the garage wall.  That evidence was set out as follows in the
ROC:

7.         Crime Scene Investigator Sheree Norman will
testify she processed the scene at [address omitted] Collingwood Street and
collected swabs of apparent blood from walls, baseboards, staircase carpet, and
a hand print in apparent blood on the garage wall.

. . .

10.       Kristina Paulette, LVMPD Forensic Scientist II, will
testify that DNA comparison analysis will identify the hand print in apparent
blood, found at [address omitted] Collingwood Street and recovered from the
garage wall, as the blood of Lambert-Cordero.

11.       Marnie Carter, LVMPD
Latent Print Examiner, will testify that the latent prints in Lambert-Carderos
blood recovered from the garage wall match the exemplar prints of Lopez-Turatiz
obtained from Canadian authorities.

[11]

Additional information was provided in the SROC:

8.         With respect to paragraph 10 of
the original Record, the following information is provided:  the detectives
will testify that the blood recovered from [address omitted] Collingwood Street
was that of Lambert-Cordero through a DNA analysis which compared blood recovered
from the residence with Lambert-Corderos blood collected at autopsy.  Kristina
Paulette will testify that she is a recognized expert as a forensic scientist
with the Las Vegas Metropolitan Police department forensic laboratory, having
testified as such in Nevada and other state courts.  Ms. Paulette will
testify that she conducted the analysis of the victims blood from the autopsy
and matched it to the blood recovered at the residence.

9.         With
respect to paragraph 11 of the original Record, the following information is
provided:  Officer Clarence Lo, with the Canadian Border Services Agency, is
expected to testify that he arranged to have a full set of prints collected of
Lopez-Turatiz once he was detained by CBSA.  Officer Lo transmitted the
collected prints, which included palm prints, to Detective Hanna
electronically.  The detective will testify that he provided the prints to
Marnie Carter, a recognized expert in latent print examinations, who conducted
the fingerprint analysis.

[12]

In his written submissions on the application, Mr. Lopez described what
he was seeking as follows:

(1)        Notes of Sheree Norman, including her C.V., who
processed the scene (undated), and a copy of the lift of a handprint in
apparent blood on the garage wall.  Described in number 7 from the certificate
of Record of the Case for the Prosecution;

(2)        Reports and Notes of Kristina Paulette, LVMPD
Forensic Scientist II, including her C.V., who will testify on DNA and will
identify the hand print in apparent blood on the garage wall.  Described in
number 10 from the certificate of Record of the Case for the Prosecution; and

(3)        Report and Notes of
Marnie Carter, LVMPD Latent Print Examiner, including her C.V., who will
testify latent prints and apparent blood on the garage wall match the
exemplar prints of Lopez-Turatiz obtained from Canadian sources.  Described in
number 11 certificate [
sic
] of the Record of the Case for the
Prosecution.

[13]

In dismissing the application, the extradition judge said (
U.S.A. v.
Lopez-Turatiz
(September 6, 2011), Vancouver 25414 (B.C.S.C.)):

[23]      Mr. Lopez only argues that
the disclosure requested is relevant to whether the fingerprint and DNA
evidence, as summarized in the ROC and SROC, is reliable
.

He says
that the
disclosure is
necessary
to challenge the reliability
of that forensic evidence.

[24]      In my view, Mr. Lopezs
argument overlooks the effect of the certification of the evidence as
summarized in the ROC and SROC. The certification creates a presumption of
reliability and availability of that evidence.  Mr. Lopez has neither
demonstrated any apparent defect in the ROC or SROC through his submissions,
nor adduced any evidence for an air of reality to his assertion that the
certified evidence is manifestly unreliable or unavailable.

. . .

[27]      There is
no merit to
Mr.
Lopez's application for disclosure that
goes
beyond the certified evidence because he has not adduced evidence
or advanced argument to rebut the presumptions of reliability and availability
arising from certification of the Records of the Case.

[28]      Mr. Lopez's application
amounts to an attempt to garner evidence to challenge the ultimate reliability
of the forensic evidence at issue as discussed at para. 58 of [
United
States v. Rosenau
, 2010 BCCA 461, 262 C.C.C. (3d) 515, leave to appeal
refd [2011] 1 S.C.R. x].

[29]      This
request is a classic fishing expedition to attack presumptively reliable
evidence and therefore is beyond the scope of an extradition hearing which is
limited to determining threshold reliability of evidence as a requirement of
s. 29(1) of the
Extradition
Act
.

Appeal
from the Refusal to Order Disclosure

[14]

Mr. Lopez did not address the committal appeal in oral argument; he
relied solely on his factum.

[15]

Mr. Lopez submits the extradition judge applied too stringent a test.
He says given the importance of the forensic evidence the judge ought to have
given him more latitude in obtaining disclosure.  While acknowledging that it
falls to him to demonstrate an air of reality supporting the need for the requested
information and material, Mr. Lopez, citing
United States of America v.
Ferras
, 2006 SCC 33, [2006] 2 S.C.R. 77, says the application of that test
must reflect his right to probe the reliability and availability of crucial
evidence.

[16]

The difficulty with this argument is that it was rejected by this Court
in
United States of America v. Rosenau
, 2010 BCCA 461, 262 C.C.C. (3d)
515, leave to appeal refd [2011] 1 S.C.R. x, a case not mentioned in Mr. Lopezs
factum.  In
Rosenau
, Madam Justice Smith undertook an extensive review
of the law relating to disclosure in the extradition context and considered
whether
Ferras
which deals with the limited scope an extradition judge
has to weigh evidencehad expanded the right to disclosure.  She concluded
Ferras
had not done so:  para. 53.

[17]

In
Rosenau
the only evidence identifying Mr. Rosenau as a
participant in drug-related offences came from an accomplice, Kip John
Whelpley.  The SROC in that case contained a summary of Mr. Whelpleys
evidence.  At the extradition hearing, Mr. Rosenau unsuccessfully sought
an order for disclosure of:  (a) copies of Mr. Whelpleys statements
to the American authorities; (b) his plea agreement with American
authorities; (c) the indictment to which he had pleaded guilty; and
(d) his criminal record.  Mr. Rosenau was committed and the dismissal
of the disclosure application was his principal ground of appeal.  In
dismissing that appeal, Smith J.A. held the extradition judge had not erred.
In part, she stated:

[58]

In
this case, the disclosure requested was made for the sole purpose of attempting
to challenge the direct evidence of Mr. Whelpley.
His evidence was
certified in the SROC and there was no evidence adduced that was able to
demonstrate that his evidence was manifestly unreliable.
The appellants
disclosure application was effectively an attempt to garner evidence with which
to challenge the credibility of Mr. Whelpley, an issue which goes to the
ultimate reliability of Mr. Whelpleys evidence.

[Emphasis added.]

[18]

In the present case, the ROC and SROC set out in summary form the tasks and
tests performed by Ms. Norman (the Crime Scene Investigator), Ms. Paulette
(the Forensic Scientist II), and Ms. Carter (the Latent Print
Examiner).  That these persons
prima facie
have the expertise necessary
to properly carry out their duties is evinced by their respective titles. In
addition, both Ms. Paulette and Ms. Carter are referred to in the
SROC as recognized expert[s] in their fields.  Mr. Lopez has not pointed
to anything that could undermine the accuracy or reliability of the evidence these
witnesses are said to be able to give.

[19]

I would not accede to this ground.

JUDICIAL REVIEW APPLICATION

The Offence for which
Surrender was Ordered

[20]

The order of surrender signed by the Minister, the Honourable Rob
Nicholson, refers to the criminal complaint charging Mr. Lopez with murder
in Nevada.  That complaint reads:

The Defendant above named having
committed the crime of MURDER WITH THE USE OF A DEADLY WEAPON (Felony  NRS
200.010, 200.030, 193.165), in the manner following, to-wit:  That the said
Defendant, on or between May 18, 2009 and May 21, 2009, at and within the
County of Clark, State of Nevada, did then and there wilfully, feloniously,
without authority of law, and with premeditation and deliberation, and with malice
aforethought, kill FRANCISO LAMBERT-CORDERO, a human being, by shooting at and
into the body of the said FRANCISO LAMBERT-CORDERO, with a deadly weapon,
to-wit:  a firearm.

Submissions
in Opposition to Surrender and the Ministers Decision

[21]

Following surrender, Mr. Lopezs counsel wrote to the Minister
advancing several arguments in opposition to surrender.  I need discuss only those
relevant to this application for judicial review.  However, I note the Minister
has received assurance from the United States that the death penalty will not
be sought or imposed should Mr. Lopez be surrendered.

[22]

Mr. Lopezs counsel submitted that the weakness of the committal
evidence weighed against surrender.  He referred to the ROC and SROC as outlining
a highly circumstantial case and urged the Minister to consider the
considerable weaknesses in the case in assessing whether extradition is just in
all the circumstances.

[23]

The Minister responded to that submission in a letter dated April 3,
2012, setting out his reasons for signing the order of surrender that day:

You submit that the Record of the Case and the Supplemental
Record of the Case outline a highly circumstantial case linking Mr. Lopez-Turatiz
to the murder and as such, I should consider the weakness of the United [Statess]
case when assessing whether to surrender is just in all of the circumstances of
this case.

You are effectively asking me to revisit the decision of the
extradition judge in ordering Mr. Lopez-Turatizs committal.  It is not my
role to do so.

The judicial phase of the extradition process is separate and
distinct from my responsibilities in deciding whether to surrender a person who
has been committed for extradition.

The extradition judge determined that there was sufficient
evidence upon which to order Mr. Lopez-Turatizs committal.  In her
reasons for judgment, the extradition judge specifically addressed the
circumstantial nature of the evidence against Mr. Lopez-Turatiz and
concluded that the evidence was sufficient to justify his committal.

I must assess Mr. Lopez-Turatizs case from the
perspective that the

committal order was
properly issued.  There is nothing in the Act, the Treaty, or elsewhere that
allows me to review this decision.  It is the authority of the appellate courts
to do so.  Indeed, Mr. Lopez-Turatiz has appealed the decision of the
extradition judge based on,
inter alia
, the judges assessment of the
evidence contained in the Record of the Case and Supplemental Record of the
Case.

It
is also beyond my function to review the sufficiency of the American evidence
in considering whether surrender would be justified.
To embark on such
an assessment would require me to assume the role of trier of fact.  Such an
approach would be inconsistent with the aim and purpose of extradition.  The
trier of fact in the United States is best placed to consider the sufficiency
of the evidence at Mr. Lopez-Turatizs trial.

[24]

After the order of surrender was signed, Mr. Lopez retained new
counsel who made further submissions to the Minister.  Counsel contended that it
would be unjust and oppressive, and contrary to s. 7 of the
Canadian
Charter of Rights and Freedoms
, Part I of the
Constitution Act, 1982
,
being Schedule B to the
Canada Act 1982
(U.K.), 1982, c. 11, to
surrender Mr. Lopez on the charge of premeditated murder because of the
potential that the Nevada prosecutor might seek to support a conviction for
murder on what in the United States is known as the felony murder rule.  Mr. Lopezs
counsel asked the Minister to seek assurances from the United States that the
Nevada prosecutor would not rely on the felony murder rule.

[25]

Under the felony murder rule an accused can be convicted of murder for a
killing that occurred in the course of committing or attempting to commit
certain other crimes, even though he or she lacked a subjective intent to kill.
In Canada, the equivalent provisions of the
Criminal Code
, which
provided for what was known as constructive murder, were declared inoperative
by the Supreme Court of Canada on the basis they infringed the principles of
fundamental justice guaranteed by s. 7 of the
Charter
:
R. v.
Vaillancourt
, [1987] 2 S.C.R. 636;
R. v. Martineau
, [1990] 2 S.C.R.
633.

[26]

Mr. Lopezs counsel provided the Minister with a detailed legal
opinion prepared by Guyora Binder, a criminal law professor at the State
University of New York Buffalo Law School, with respect to the felony murder
rule in Nevada.  That opinion contains the following summary:

1.         Felony
murder liability is murder liability for killing in the perpetration or attempt
of certain felonies, notwithstanding the lack of intent to kill.  American
felony murder rules are independent in origin and authority.  They vary in
operation and scope among jurisdictions, but most felony murder rules condition
liability on objective foreseeability of death.  Participants in the felony who
do not kill are usually liable for deaths objectively foreseeable to them.

2.         Nevada
imposes felony murder liability.

3.         Nevadas
felony murder rule does not require subjective foresight of death.  It does
require whatever subjective mental state is required for the predicate felony.

4.         Nevada
Prosecutors can amend charges but only if this does not prejudice the
defendants right to be informed of charges with sufficient specificity and
sufficiently early to be able to prepare a defense to the new charges.

5.         In Nevada, a
participant in a fatal predicate felony who does not personally commit the act
causing death is probably liable for felony murder on the basis of the same
mental state required of the killer.  In most cases this will be objective
foreseeability of death.  For certain predicate felonies, objective
foreseeability of death is not required.  Objective foreseeability of death is
arguably entailed in participating in most of these felonies, but not
necessarily all.

With respect to point 4, in the
body of his opinion, Professor Binder stated:

Amendment of the information to
set forth added alternative theories of the mental state required for
first-degree murder does not charge an additional or difference offence.

[27]

In a letter dated April 18, 2013, the Minister confirmed his
decision to surrender Mr. Lopez.  While recognizing that constructive
murder is unconstitutional in Canada, the Minister stated it was neither unjust
nor oppressive to surrender a person to face prosecution in a jurisdiction
where the rules governing the trial process do not accord with our own.  The
Minister noted that as Mr. Lopez is not charged with felony murder the
concerns raised with respect to the felony murder rule did not arise on the
facts of his case.

[28]

The Minister further stated that by reason of the rule of specialty, the
State of Nevada would have to obtain Canadas consent to proceed under the
felony murder rule.  That rule provides that a person who has been extradited
may only be prosecuted for the offence(s) for which he or she was surrendered,
subject to certain exceptions.  It is embodied in Article 12 of the
Extradition Treaty Between Canada and the United States of America
, Can. T.S. 1976, No. 3, as amended
, which reads (in
part):

(1)        A person extradited under the present Treaty shall
not be detained, tried or punished in the territory of the requesting State for
an offense other than that for which extradition has been granted nor be
extradited by that State to a third State unless:

(iii)    The requested State has consented to his detention,
trial, punishment for an offense other than that for which extradition was
granted or to his extradition to a third State, provided such other offense is
covered by Article 2.

[29]

With respect to the rule of specialty, the Minister stated:

Moreover, I note
that the request for Mr. Lopez-Turatizs extradition is for the
substantive offence of murder and not for felony or constructive murder.
As such, the concern you raise does not arise on the facts of this case.  I am
advised that the Nevada prosecutors office does not intend to prosecute Mr. Lopez-Turatiz
for felony murder.  Furthermore, I note that the Office of International
Affairs, United States Department of Justice, has advised that should Nevada
change its mind after surrender and seek to prosecute Mr. Lopez-Turatiz on
felony murder, Nevada would have to amend its
criminal
complaint
.  In order to prosecute Mr. Lopez-Turatiz
on a different offence than the one for which he was ordered surrendered, the
United States would also have to seek a waiver of specialty from Canada.
Should such a request be made, it would be assessed at that time on the basis
of the applicable facts.

[30]

The Minister stated that assurances were
unnecessary with respect to the felony murder rule because, by reason of the
rule of specialty, [w]ithout the consent of Canada, the United States could
not prosecute Mr. Lopez-Turatiz for any offence other than the offence for
which he was surrendered.

Challenges
to the Ministers Decision

Failure to Consider the
Weakness of the Case

[31]

Mr. Lopez submits there is only a tenuous case against him and
that the Minister improperly fettered his discretion by declining to take the
overall weakness of the evidence into consideration.  He says that the
Ministers error in this case is virtually identical to the error identified
by this Court in
United States of America v. Lucero-Echegoyen
, 2013 BCCA
149, 336 B.C.A.C. 188.  I disagree.  As I will explain,
Lucero-Echegoyen
is distinguishable and does not support the broad proposition Mr. Lopez
seeks to draw from it.

[32]

Mr. Luceros extradition was sought on drug-related charges.  The ROC
stated that several witnesses would give evidence regarding the activities of a
person known to them as Elmer.  A number of them had been shown photographs
of Mr. Lucero and identified him as Elmer.  Mr. Luceros position
was that those witnesses who identified him were mistaken as he had alibi
evidence, including Canadian government records, that showed he was in Canada
during the time the offences were alleged to have been committed.

[33]

At his extradition hearing, Mr. Lucero sought to tender the alibi
evidence.  Following a
voir dire
the extradition judge ruled that
evidence inadmissible.  Mr. Lucero was committed.  In dismissing his
committal appeal, this Court held that the judge had not erred in refusing to
admit the evidence:  paras.  17  19.

[34]

Mr. Lucero provided his alibi evidence to the Minister.  In
ordering Mr. Luceros surrender, the Minister declined to consider that
evidence stating, in part, that it was beyond [his] function to review the
ultimate reliability of the evidence on which the committal was based:  para. 22.
On judicial review, this Court set aside the order of surrender and referred
the matter back to the Minister for reconsideration.

[35]

Mr. Lopez points to the fact that the reasons given for ordering
surrender in his case (reproduced in para. 23 above) are strikingly
similar to those which the Minister gave in Mr. Luceros case.  While
this is correct, Mr. Lopezs submission ignores the context in which
Lucero-Echegoyen
was decided.

[36]

The issue in
Lucero-Echegoyen
was whether the Minister should
have taken into consideration alibi evidence that was not admissible at the
extradition hearing and which would be difficult to adduce before the American
trial court; evidence which this Court described as substantial and very
strong:  paras. 7, 25.  In finding that the evidence should have been
considered, Mr. Justice Groberman said this:

[23]

In
my view, the Minister misapprehended the scope of his role in the extradition
process.  He was not being asked to review the decision of the extradition
judge.  Rather, he was being asked to consider,
in light of evidence that
was inadmissible before the extradition judge
, whether the surrender of Mr. Lucero-Echegoyen
would be oppressive or unjust. His role was quite distinct from that of the
judge on the committal hearing.

[24]

Neither
was the Minister being asked to usurp the role of the trial court in the United
States.  The Minister was not being asked to determine guilt or innocence,
per
se
, but was being asked to evaluate whether, in the circumstances, it would
be oppressive or unjust to surrender Mr. Lucero-Echegoyen.  The apparent
strength of the alibi evidence was one factor that should have been considered
in making that evaluation.

[25]

Mr. Lucero-Echegoyen
produced very strong evidence showing he was in Canada during the period when
the requesting state alleges he was in Denver.  That evidence includes official
records of the Canadian government.
Mr. Lucero-Echegoyen might face
serious obstacles in bringing his alibi evidence before a court in Wyoming
,
given his very limited financial resources.  I note that the alibi evidence
comes from witnesses and business records located in Vancouver.  It is not
clear how Mr. Lucero-Echegoyen will go about getting that evidence before
the U.S. District Court for the District of Wyoming.

[29]

I
do not suggest that the Minister must, in every case, come to a preliminary
assessment of the strength of the requesting states case before surrendering
the individual who is sought.  Where, however, the weakness of the requesting
states case is evident and where serious hardship may face the individual if
that person is surrendered, the scope of the Ministers inquiry should not be
artificially narrowed.

[Emphasis added.]

[37]

That
Lucero-Echegoyen
does not stand for the proposition that the
Minister is under a general obligation to consider the strength of the evidence
which supports a committal is discussed in
United Kingdom of Great Britain
and Northern Ireland v. Aziz
, 2013 BCCA 414, 342 B.C.A.C. 305.

[38]

Mr. Azizs extradition was sought for an offence corresponding to
the Canadian offence of possession of stolen property (
Criminal Code
,
s. 354).  The allegation related to a large quantity of pharmaceutical
drugs.  Mr. Aziz was arrested when he attempted to sell those drugs to a
private investigator employed by the company from which they were stolen.

[39]

At the extradition hearing, Mr. Aziz sought to tender his own
affidavit and that of another person to provide his version of the events,
namely that he was an innocent broker who did not know the drugs were stolen.
The extradition judge refused to admit the affidavits and went on to commit Mr. Aziz.
In dismissing his committal appeal this Court held that the judge had not erred
in refusing to admit the affidavits, citing, among other cases,
Lucero-Echegoyen
:
Aziz
at paras. 35, 40.

[40]

Mr. Aziz provided the affidavits to the Minister who, in ordering
surrender, declined to consider them.  After noting that Mr. Aziz was
raising the admissibility of the affidavits as a ground on his committal
appeal, the Minister continued:

Furthermore, it is beyond my function to review the
sufficiency of the United Kingdoms evidence in considering whether surrender
would be justified.  To embark on such an assessment would require me to assume
the role of trier of fact.  Such an approach would be inconsistent with the aim
and purpose of extradition.  The extradition process is neither equipped nor
intended to determine the guilt or innocence of the person sought but rather to
ascertain whether surrender to the requesting state is justified in the
circumstances of a particular case (
Kindler v. Canada (Minister of Justice)
,
[1991] 2 S.C.R. 779;
Argentina v. Mellino
, [1987] 1 S.C.R. 536).

While
my function in deciding the issue of surrender is broader than the principles
applied at the committal stage of extradition, I am in no better position to
weigh the strengths and weaknesses of the foreign evidence against Mr. Aziz.
 In the event that Mr. Aziz is surrendered, he will have the opportunity
to present his defence and challenge the evidence against him before a trier of
fact in the United Kingdom.

[41]

In dismissing Mr. Azizs application for judicial review of the
Ministers decision, this Court held that the Ministers failure to consider
the affidavits did not amount to an undue narrowing of matters he is required
to consider.  In particular, Mr. Justice Harris, in discussing
Lucero-Echegoyen
,
stated:

[63]      [Paragraph 29] makes it clear that
Groberman J.A. was not laying down a universal rule that inadmissible
defence evidence,
or the evidence in the case generally
, must be
assessed on a preliminary basis before the Minister can conclude that it would
not be unjust to order surrender.
Rather, such an inquiry is required where
two conditions are met: first, the weakness in the requesting states evidence
must be evident; and second, surrender may face the person sought with serious
hardship.

[Emphasis added.]

[42]

Mr. Lopez is unable to satisfy either of the two conditions just
mentioned. First, in my view, the case against him, while circumstantial, is
not one I would describe as weak.  If unanswered, then a trier of fact may
well be satisfied beyond a reasonable doubt that Mr. Lopez intentionally
killed Mr. Lambert.  Second, Mr. Lopez has not advanced anything which
could support a finding that he would face serious hardship if surrendered.

[43]

For completeness, there is one further decision of this Court I wish to
mention, namely,
Canada (Minister of Justice) v. Narayan
, 2008 BCCA 280,
257 B.C.A.C. 121, leave to appeal refd [2008] 3 S.C.R. viii.

[44]

Mr. Narayans extradition was sought on drug-related charges.  In
his submissions to the Minister he argued the evidence against him was so weak
that it would be unjust and oppressive to order his surrender.  In ordering
surrender, the Minister declined to assess the cogency of the evidence.  After
noting that the issue of the sufficiency of the evidence was being raised by Mr. Narayan
on his appeal from committal, the Minister stated:

Similarly, it is not my function to engage in a separate
analysis of whether the American evidence is adequate as this would require me
to assume the role of the foreign trier of fact.  Such an approach would be
inconsistent with the aim and purpose of extradition.  The extradition process
is neither equipped, nor intended to determine the guilt or innocence of the
person sought.  Its purpose is to ascertain whether surrender to a requesting
state is appropriate in the circumstances of a particular case
.  I am not in
a position to weight the strengths and weaknesses of the foreign evidence.  The
U.S. trial courts are best placed to consider this question in the venue of Mr. Narayans
trial.

Therefore, in my view, it would not be unjust or oppressive,
or contrary to the principles of fundamental justice to surrender Mr. Narayan
to the United States, notwithstanding your concerns with the strength of the
prosecutions case.

[Emphasis added.]

[45]

In dismissing Mr. Narayans application for judicial review, this
Court held that the Minister had not erred by failing to assess the strength of
the evidence.  In doing so, Mr. Justice Low reviewed a number of
authorities, including
Germany (Federal Republic) v. Schreiber
(2006),
206 C.C.C. (3d) 339 (Ont. C.A.), leave to appeal refd [2007] 1 S.C.R. xiv,
wherein Mr. Schreiber argued that the Minister erred by refusing to
consider the credibility of the prosecutions principal witness.  In rejecting
that argument, Mr. Justice Sharpe, in a passage which Mr. Justice Low
quoted with approval, said:

[64]      To the extent that the
Extradition Act
relaxes the rules of evidence, the Act does not alter the jurisdiction,
responsibility or authority of the extradition judge or that of the Minister
with respect to the assessment of the evidence.
It is for the extradition
judge to determine whether or not there is sufficient evidence to warrant
committal.  Once that determination has been made, weighing the evidence or
assessing its reliability are matters for trial in the foreign jurisdiction.
There [
sic
] are not matters for the Minister to address when considering
whether to surrender the appellant.
The Minister retains a residual
discretion to refuse surrender where it would be unjust or oppressive.
However, the exercise of that discretion is accorded a high level of deference
on judicial review. In view of the substantial body of evidence led in support
of the committal, I am far from persuaded that there is any basis for this
court to interfere on this ground.

[Emphasis added.]

[46]

Mr. Justice Low went on to state:

[17]      I would not accede to the first ground [i.e., that
the Minister erred in declining to assess the strength of the committal
evidence].  The applicant submitted that in undertaking an assessment of his
interests, including his liberty interests under the
Charter
, it was
necessary for the Minister to consider the evidence involved in the case
against him.  He says that the strength or weakness of that evidence is a
factor to speak to the fairness of the applicants surrender.
However, the
case law above demonstrates that the sufficiency of evidence is properly
considered by the extradition judge, with subsequent deference to that finding
by the Minister.  Here, the Minister properly deferred to the courts
conclusion that the case against the applicant was sufficient to justify his
committal.
Although the Minister retains a residual discretion to decline
to surrender a person sought if, as stated in [
United States of America v.
Earles
, 2003 BCCA 20, 171 C.C.C. (3d) 116 (B.C.C.A.)], the reliability of
the requesting states evidence is such that to surrender that person would
shock the conscience of Canadians, this discretion is not engaged in the
circumstances of the present case, where the only issue raised is the relative
strength or weakness of evidence that has been found to be sufficient by the
extradition court.

[Emphasis added.]

[47]

For the above reasons, I would not accede to this ground.

The
Felony Murder Rule

[48]

Mr. Lopez acknowledges that currently he is charged with premeditated
first-degree murder, an offence that requires proof of subjective
mens rea
,
i.e., an intent to kill.  His arguments are based on what he submits is the
potential that if he is surrendered, then the prosecutor might seek to rely
on the felony murder rule as a means of imposing liability for first-degree
murder.  Under that rule, a person can be convicted of murder absent proof of a
subjective intent to kill.

[49]

Citing
United States v. Burns
, 2001 SCC 7 at para. 60,
[2001] 1 S.C.R. 283, Mr. Lopez says the Minister was required to consider
his surrender on the basis that there is a possibility that the prosecutor
might seek to rely on the felony murder rule.  In
Burns
, Mr. Burns
and Mr. Rafay were charged with three counts of aggravated first degree
murder.  Aggravated first degree murder is punishable either by the death
penalty or life imprisonment without possibility of parole.  The Supreme Court
of Canada held that Mr. Burns and Mr. Rafay could not be surrendered
without assurances that the death penalty would not be sought or imposed, even
though the prosecutor had yet to decide which penalty to seek.  Assurances were
required because capital punishment was one of the potential consequences of
extradition and the case did not involve exceptional circumstances that would
permit surrender without assurances.

[50]

Mr. Lopez submits that although the Nevada prosecutor has indicated
he does not intend to prosecute for felony murder, he has not unequivocally
committed to never seeking to do so.  Mr. Lopez says there is a realistic
possibility he may advance a defence at trial that would result in the prosecutor
applying to amend the charge to engage the felony murder rule.  In what he
describes as a reasonable hypothetical, Mr. Lopez says he could testify that
Mr. Torres killed Mr. Lambert in circumstances that would expose Mr. Lopez
to criminal liability for first degree murder under the rule.

[51]

Mr. Lopez takes the position that a person can never be surrendered
to stand trial for murder if there is a possibility that the prosecutor might
seek to obtain a conviction on the basis of the felony murder rule.  Based on
Professor Binders opinion, he further argues that felony murder would not be
considered a different offence and, therefore, the rule of specialty would not
operate to preclude an amendment without Canadas consent.

[52]

The Ministers position is that it is open to him to surrender a person
to be tried for felony murder.  However, he says that the issue of surrender
for felony murder does not arise in this case because:  (a) Mr. Lopez
is not charged with felony murder; (b) the Nevada prosecutor has indicated
he does not intend to prosecute Mr. Lopez for felony murder; and (c) in
any event, by reason of the rule of specialty, Mr. Lopez could not be
tried for felony murder without Canadas consent.

[53]

It is unnecessary to decide whether the Minister is precluded from ever surrendering
on a charge of felony murder.  Mr. Lopez is charged with premeditated
murder and there is no air of reality to his submission that the prosecutor might
change his position and seek to rely on the felony murder rule.  Accordingly,
there is no need for me to discuss the cases the Minister cites as support for
his position that a person can be surrendered for felony murder:
United
States of America v. Chong
(1996), 91 O.A.C. 319, leave to appeal refd [1997]
1 S.C.R. vi (
sub nom. Chung v. The Queen
);
DesFoss
és v. Canada (Minister of Justice)
(1996), 120 F.T.R. 294, appeal
dismissed (1997), 216 N.R. 152 (F.C.A.), leave to appeal refd [1997] 3 S.C.R.
viii.

[54]

Mr. Lopez relies on the statement in
Burns
(at para. 60)
that, Section 7 [of the
Charter
] is concerned not only with the act of
extraditing, but also the
potential
consequences of the act of
extradition (emphasis in original).  However, that sentence has to be read
with the immediately preceding one, in which the Court stated, This Court has
recognized from the outset that the punishment or treatment
reasonably
anticipated
in the requesting country is clearly relevant (emphasis
added).

[55]

As the Supreme Court noted in
Burns
, the crimes alleged in that
case were brutal and shocking cold blooded murder[s]:  para. 9.
Further, s. 7 was engaged because the only possible punishments that could
be imposed on Mr. Burns and Mr. Rafay were the death penalty or life
imprisonment without possibility of parole:  para. 28.  In other words, surrender
without assurances would reasonably expose them to being tried for a capital
offence.  I note this Court has held it is open to the Minister to surrender
without formal assurances for an offence for which capital punishment could be
imposed when the requesting state has indicated it will not seek the death
penalty; in other words, when that penalty is not reasonably anticipated
:
Gervasoni v. Canada (Minister of Justice)
(1996), 72 B.C.A.C. 141 at paras. 25
 29, leave to appeal refd [1996] 2 S.C.R. vii;
Hong Kong Special
Administrative Region of the Peoples Republic of China v. Dia
, 2006 BCCA
179 at paras. 8  14, 267 D.L.R. (4th) 49.

[56]

In the present case, it cannot be said that an application by the
prosecutor to amend the charge against Mr. Lopez to allege felony murder
is reasonably anticipated.  As the matter presently stands, there is no
evidence to support a theory of criminal liability under the felony murder
rule.  Mr. Lopezs submission that this could change if he testifies is no
more than conjecture, based on the supposition that he might recount a version
of events that would bring the rule into play.

[57]

Further, based on Professor Binders opinion, it appears doubtful that
an application to invoke the felony murder rule on the basis of evidence given
by Mr. Lopez would succeed.  That opinion cites two decisions of the
Supreme Court of Nevada in which it was held that the prosecution should not
have been allowed to invoke the rule at the eleventh hour.  In
Alford v.
State
, 906 P. 2d 714 (Nev., 1995), there was no mention of felony
murder in the indictment, but the trial judge, at the request of the
prosecutor, improperly gave the jury a felony murder instruction.  In
Jennings
v. State
, 998 P. 2d 557 (Nev., 2000), Professor Binder describes the impermissible
amendment to the indictment as having been made,

mid-trial, after the defendant
testified that he had summoned the victim to approach him by motioning with a
gun.  The State amended its information to add a felony-murder theory alleging
Jennings kidnapped the victim before shooting him.

[58]

The last matter I wish to mention is the rule of specialty.  As indicated
above, Mr. Lopez and the Minister disagree as to whether that rule would
preclude Mr. Lopez being tried for felony murder without Canadas consent.
It is both unnecessary and impossible to resolve this question.  It is
unnecessary, because the possibility of the present charge being amended to
include an allegation of felony murder is remote.  It is impossible, because
the matter was not fully argued.  Professor Binder was not asked for an opinion
on this rule and we have not received submissions on whether the United States
or the State of Nevada hold the same view of it as does the Minister.  There is
also the question of whether Mr. Lopez would have standing before the
Nevada court to raise the rule of specialty in opposition to an application by
the prosecutor to amend the charge.

[59]

Notwithstanding the possibility of the prosecutor seeking to rely on the
felony murder rule is remote, I would expect that on Mr. Lopezs
surrender, the current Minister, the Honourable Peter MacKay, will inform the
United States of Canadas position on the rule of specialty, as expressed by
Minister Nicholson.

DISPOSITION

[60]

I would dismiss both the appeal and the application for judicial review.

The
Honourable Mr. Justice Frankel

I AGREE:

The Honourable Mr. Justice
Lowry

I AGREE:

The Honourable Mr. Justice
Tysoe


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Bains,

2014 BCCA 43

Date: 20140203

Docket: CA040443

Between:

Regina

Respondent

And

Jaswinder Singh
Bains

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Willcock

On appeal from:  An
order of the Provincial Court of British Columbia,
dated July 4, 2012 (
R. v. Bains
, Vancouver Docket No. 202092-1).

Counsel for the Appellant:

S.E. Pinx, Q.C.
K. Smith

Counsel for the Respondent:

W.P. Riley

Place and Date of Hearing:

Vancouver, British
  Columbia

November 8, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

February 3, 2014

Written Reasons by:

The Honourable Madam Justice Neilson

Concurred in by:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Willcock

Summary:

The appellant appeals his
conviction on a charge of conspiracy to import heroin, the evidence for which
was based on wiretap authorizations. The appellant challenged the admissibility
of the evidence on the basis that the police had only learned of his identity
for the authorizations through an unlawful traffic stop. On voir dire the trial
judge agreed the appellants s. 8 and s. 9 Charter rights had been
violated. However, the judge ruled the evidence admissible under s. 24(2)
of the Charter. The appellant challenges this finding, arguing the judge erred
by permitting the Crown to lead evidence to amplify its position on the s. 24(2)
application, wrongly speculated about discoverability and gave this factor
undue weight, and gave inordinate weight to his finding of good faith.

Held: appeal dismissed.
Absent an error in principle or an unreasonable finding an appellate court owes
considerable deference to a trial judges s. 24(2) determination. The
trial judge did not err in considering the police constables evidence on the
s. 24(2) hearing; his evidence was potentially relevant to good faith and
to discoverability. The trial judge concluded the telephone numbers were
otherwise discoverable based on findings of fact and credibility and did not
give discoverability inordinate weight. On the evidence at trial, the trial
judges finding of good faith was reasonable.

Reasons for Judgment of the Honourable
Madam Justice Neilson:

[1]

The appellant, Jaswinder Singh Bains, appeals his conviction by a
Provincial Court judge on a charge of conspiracy to import heroin between
August 7 and September 20, 2007. The charge was based on evidence
gained through police surveillance and private communications intercepted
pursuant to a series of wiretap authorizations granted under s. 186 of the
Criminal Code
, R.S.C. 1985, c. C-46.

[2]

On a
voir dire
held prior to trial, the appellant challenged the
admissibility of the intercepted communications on the basis the police had only
been able to learn evidence of his identity through an arbitrary and unlawful
traffic stop. The trial judge agreed that his right to be free from arbitrary
detention under s. 9 of the
Charter
had been violated by that stop,
and excised the paragraphs identifying the appellant from the affidavit used to
obtain the wiretap authorization. There then being no reasonable grounds for
naming him as a primary target, the trial judge found the interception of the
appellants communications also violated his right to privacy under s. 8
of the
Canadian Charter of Rights and Freedoms
, Part 1 of the
Constitution
Act, 1982
, being Schedule B to the
Canada Act 1982
(U.K.), 1982,
c. 11 [
Charter
].

[3]

These communications were central to the Crowns case, and so it applied
under s. 24(2) of the
Charter
to have them admitted into evidence,
arguing their admission would not bring the administration of justice into
disrepute. The trial judge granted the application, admitted the intercepted
communications, and ultimately relied on this evidence to convict the
appellant.

[4]

On appeal, the appellant challenges the trial judges s. 24(2)
ruling, and contends he erred in three respects. First, he permitted the Crown
to lead evidence at the hearing to amplify its position. Second, he wrongly
speculated on the discoverability of critical evidence and then gave this
factor undue weight. Third, he unjustifiably gave inordinate weight to his
finding of good faith in mitigating the
Charter
-infringing state
conduct.

Background

[5]

On August 9, 2007, the Combined Forces Special Enforcement Unit
(CFSEU) obtained authorization P.40/2007 (P.40), the sixth of seven
authorizations in an ongoing drug investigation. P.40 named the appellant as a
primary target and authorized the interception of his private communications.

[6]

The grounds for issuing P.40 were set out in a 325-page affidavit sworn
by Cst. Murphy on August 9, 2007. This described private communications
intercepted under two earlier authorizations, P.32/2007 (P.32) and P.23/2007
(P.23); surveillance evidence stemming from those communications; voice
identification; corporate and vehicle searches; and the arbitrary traffic stop
identified above. I summarize the key evidence in the affidavit as follows.

[7]

It recounted numerous telephone conversations between Ranjit Singh Khakh
(Khakh) and Ravinder Singh Dhanda (Dhanda), intercepted under P.32, which
had been granted on June 27, 2007. Both were primary targets under P.32,
and these calls described arrangements for an ultimately unsuccessful attempt
to export 230 lbs of marihuana to the United States. In the course of this
transaction Dhanda spoke several times to an unknown male using phone number
778-861-9373 (UM 9373), who was sometimes referred to as Jetti. The calls
indicated that Jetti accompanied Dhanda in a vehicle that followed the
commercial truck carrying the marihuana across south eastern B.C. to the
American border, where state agents seized the vehicle, and arrested its driver.
Cst. Murphy summarized this at para. 444 of the affidavit:

Based on the intercepted
communications and investigation summarized in paragraphs
445
to
469
I believe that KHAKH arranged to pick up and transport marihuana for Thai. I
believe that KHAKH utilized the trucking contacts of DHANDA and BAINS to export
230 pounds of marihuana. I believe that DHANDA and BAINS traveled to the
interior of British Columbia following the commercial truck in which the
marihuana was hidden until it approached the United States border crossing where
the marihuana was located and the driver was arrested.

[8]

On July 12, 2007, an intercepted conversation between Dhanda and UM
9373 indicated they would meet at a location in Surrey. CFSEU surveillance at
that site observed Dhanda meet with a man driving a green Volkswagen Touareg
with licence plate 241APJ.

[9]

A photo of the man driving the Volkswagen, obtained from the police surveillance,
was then shown to Sgt. McLean of the Vancouver Police Department. He was able
to identify this person as the appellant from earlier dealings he had had with
him on January 6, 2007, when he had pulled his vehicle over on a traffic
check. At that time, he obtained the appellants name, address, drivers
licence number 5387305 and date of birth. Sgt. McLean checked the appellant for
signs of impairment and then allowed him to proceed. This account, set out in paras. 90
and 91 of the affidavit, was the only information that established the
appellant was UM 9373 or Jetti, and provided the basis for identifying him by
name in the affidavit.

[10]

Communications intercepted under P.32 also indicated that, between
August 3 and 7, 2007, Dhanda, Ken Shien Ho (Ho), and Karn were
involved in a conspiracy to import cocaine. On August 3, 2007, Dhanda discussed
the terms of this deal with UM 9373, who provided advice on the transaction.

[11]

A civil wiretap monitor working for the CFSEU investigation listened to
all telephone calls involving UM 9373 and determined that each had the same
voice.

[12]

The affidavit also recorded police searches of various databases on
August 8, 2007, which provided the following information:

a)       the
subscriber to the telephone number 9373 was Surjit Bains of 16322 92

Ave,
Surrey;

b)       Canadian
Pacific Information Centre (CPIC) revealed that Jaswinder Singh Bains had
B.C. drivers licence number 5387305, resided at 15532 89B Ave in Surrey, and
was born on August 17, 1966;

c)       a
corporate search of Marathon Transport Ltd. listed its registered office as
15532 89B Ave in Surrey and listed its director as Surjit K. Bains and vice president
as Onkar Singh Bains, of the same address. The company was dissolved on
April 28, 2007 for failing to file annual reports; and

d)       a
corporate search of Marathon Express Ltd. revealed it was incorporated on
May 3, 2007, had a registered office on Kingsway in Vancouver, and a
delivery address in Delta. Its director was listed as Onkar Singh Bains of
16322 92 Ave, Surrey.

[13]

Authorization  P.40 was granted on August 9, 2007. It named Dhanda,
Ho, and the appellant as primary targets, among others. It included a resort
to clause at para. 5.56, which provided for the interception of
communications using any other mobile telephone in Canada where there were
reasonable grounds to believe that at least one of the people using the phone
was a primary target under the authorization.

[14]

On August 18, 2007, a private communication was intercepted under
P.40 between Ho and an unidentified male using phone number 778-858-2428
(2428). Ms. Gurpreet Chahal, a civilian police monitor for the
investigation, was able to identify the voice using 2428 as the same person as
UM 9373.

[15]

On August 20, 2007, the CFSEU wrote to Rogers Communications compelling
interception of the calls on 2428 pursuant to the resort to clause in P.40.

[16]

During the currency of P.40, the CFSEU intercepted private
communications of the appellant regarding a scheme to import heroin from India,
in which he discussed acquisition of the heroin, travel arrangements for the drug
couriers, and methods of concealing the drugs. Police surveillance captured the
appellant meeting with co-conspirators, and his encounter with the drug couriers
on their arrival in Toronto. The CFSEU apprehended the couriers and seized
seven kilograms of heroin.

The
Ruling

on the
Voir Dire

[17]

The appellant attacked the validity of authorization P.40 on two
grounds. First, he argued that his identity had not been established by lawfully
obtained evidence because Sgt. McLeans vehicle stop in January 2007 was an
arbitrary detention. He maintained paras. 90 and 91 of P.40 must therefore
be excised from the affidavit, leaving no reasonable grounds to identify him as
Jetti or UM 9373. Second, the appellant argued that the affidavit did not
reveal reasonable grounds to support Cst. Murphys belief that
intercepting the private communications of UM 9373 or Jetti would assist in
the ongoing investigation.

[18]

The trial judge reviewed Sgt. McLeans evidence about his dealings with
the appellant on January 6, 2007. He found it so lacking in detail that
the only reasonable conclusion to be drawn was there had been no justification
for him to stop and detain the appellant. He accordingly concluded this traffic
stop had been arbitrary and unlawful, and had violated the appellants rights
under s. 9 of the
Charter
. The judge excised paras. 90 and 91 from
the affidavit.

[19]

The trial judge rejected the appellants second argument. He found the
evidence implicating Jetti and UM 9373 was sufficient to support a reasonable
belief that this person was involved with Dhanda and had accompanied him on the
trip with the truck that had attempted to carry marihuana across the border.

The
s. 24(2) Hearing and Decision

[20]

The trial judge acknowledged that there were two related
Charter
breaches.
The first, under s. 9, arose from the arbitrary traffic stop. This led to
an absence of reasonable grounds for the police to identify the appellant by
name in the affidavit and in P.40, which violated his privacy rights under
s. 8.

[21]

Over the objections of the defence, the trial judge permitted the Crown
to lead evidence from Cst. Murphy and Ms. Chahal. He found both to be
credible witnesses. He accepted Ms. Chahals evidence that the user of
2428 was the same person as the user of 9373. He also accepted Cst. Murphys
testimony that, before he swore his affidavit, he had identified the appellant as
the driver of the Volkswagen Touareg observed during the surveillance on
July 12, 2007, but he had inadvertently omitted this from the affidavit.

[22]

The trial judge noted that the parties agreed the interceptions of 2428,
as well as those of 9373, would be subject to his ruling. He rejected the
defence argument that the police required a new authorization to intercept the
former, holding both their compliance with the preconditions of the resort to
clause in P.40, and Ms. Chahals voice identification, provided reasonable
grounds to intercept 2428.

[23]

The trial judge then turned to the three-pronged s. 24(2) analysis
established in
R. v. Grant
, 2009 SCC 32.

[24]

With respect to the seriousness of the
Charter
-infringing state
conduct, the trial judge accepted the appellants arbitrary detention was
serious, but found Sgt. McLeans vehicle stop was at the less serious end
of the spectrum due to several mitigating factors. These included the fact the
stop was not related to the drug investigation or executed for some other
ulterior motive. Nor had the appellant been surreptitiously photographed or
videoed. The stop itself had been brief and the appellant was not taken from
his vehicle. Moreover, the trial judge found it was reasonable for Cst. Murphy
to rely on information from another officer, and accepted he did not know the
details of the stop until trial. He also found nothing to suggest Cst. Murphy
had purposely withheld or mischaracterized the circumstances of the stop when
he prepared the affidavit.

[25]

The trial judge referred to Cst. Murphys evidence that he had had other
information identifying the appellant as Jetti or UM 9373 that was omitted
from the affidavit due to oversight. He accepted this explanation as leaving
this out of the affidavit provided no advantage to the police.

[26]

The trial judge also reiterated his earlier findings on the
voir dire
that, even without knowing the appellants identity, the police had information
that met the necessary standard to obtain an authorization for the user of
9373, the person known as Jetti, and the user of 2428 as legitimate unnamed
targets.

[27]

The trial judge rejected the defence submission that the authorities had
acted in bad faith, holding that when they implemented P.40 they believed they
were acting pursuant to a valid order of the Supreme Court. He found Cst.
Murphy had not been careless, reckless, or negligent in preparing the
affidavit, stating:

[39]      While the defence submits there was bad faith on
the part of the authorities, that submission is in part based on the use of the
Resort to Clause. Here Cst. Murphy testified and explained how he gathered the
information for the affidavit and how he would verify information with
investigators. Cst. Murphy was forthright in his evidence. Cst. Murphy made
reasonable effort to ensure the accuracy of the information in his affidavit so
that the Authorizing Justice would have all of the relevant information upon
which to consider the issuance of the Authorization. Murphy was not careless,
reckless or negligent in the preparation of the affidavit, He did not purposely
withhold relevant information. In the circumstances Murphy acted in good faith
in the preparation of the affidavit and in the presentation of the information
to the issuing justice.

[43]      The seriousness of the
breach will depend on all of the circumstances and in particular the conduct of
the police The affidavit in support of the Authorization was not perfect but
nor was it the product of carelessness, recklessness, or negligence. Cst.
Murphy did not purposefully withhold relevant information nor did he
purposefully include misleading information. Cst. Murphy and the authorities
acted in good faith in obtaining the Authorization and relying upon that
Authorization once it was obtained.

[28]

Turning to the impact of the breach on the appellants
Charter
-protected
interests, the trial judge acknowledged there is a high expectation of privacy
for private communications, but accepted the Crowns submission that the impact
of the breach was less serious in this case because the evidence obtained was
otherwise discoverable. He referred to his earlier finding that the police
could have lawfully obtained an authorization to intercept the communications
of UM 9373 by virtue of the calls made between that number and other authorized
targets. The communications intercepted on 2428 were also discoverable as the
initial calls on that number were made to Ho, who was a target under P.40. Ms. Chahal
identified the voice on 2428 as the same person as UM 9373. Since UM 9373 could
have been named as a target, interception of the calls of 2428 was justified
under the resort to clause in P.40.

[29]

As to societys interest in the adjudication of the case on its merits,
the trial judge noted it was common ground the offence was serious and the
evidence had a degree of reliability. He concluded its exclusion would
undermine the interests of the justice system and bring the administration of
justice into disrepute.

[30]

In balancing the three factors, the trial judge contrasted this case
with
R. v. Stanton
, 2010 BCCA 208, and found the
Charter
breaches
here had not been deliberate, negligent, and unreasonable; there was no pattern
of abuse; and the evidence was otherwise discoverable. He observed the breaches
in
Stanton
were more serious, yet the Court had admitted the intercepted
communications as real and reliable evidence that was important to the Crowns
case and to the societal interests at stake. He concluded the evidence should
not be excluded.

Reasons
for Judgment on Conviction

[31]

During the appellants 14-day trial the Crown led evidence of the intercepted
communications of 9373 and 2428 in which the appellant discussed the heroin
importation scheme with his co-conspirators, as well as the surveillance
evidence of the appellant and the co-conspirators meeting and going to the
airport to meet the couriers arriving with the heroin. The trial judge found
this evidence cogent, compelling, and persuasive and, on July 4, 2012, convicted
the appellant of conspiracy to import heroin.

Issues on
Appeal

[32]

This appellant raises these issues on appeal:

1.       Did the trial judge err by
allowing the Crown to lead evidence on the s. 24(2) hearing, and in his
assessment of this evidence?

2.       Did the trial judge err in
considering the discoverability of the appellants identity by:

a) finding his identity was otherwise discoverable; and

b) placing too much weight on discoverability?

3.       Did the trial judge err in
finding the police acted in good faith?

Analysis

[33]

The trial judge properly adopted the well-established approach developed
in
Grant
for considering whether evidence should be excluded under
s. 24(2) of the
Charter
. This requires an analysis of three
factors: the seriousness of the
Charter
-infringing state conduct; the
impact of the breach on the accuseds
Charter
-protected interests; and
societys interest in the adjudication of the case on its merits. After
considering these independently, the judge must balance the assessments of each
to determine whether, in all the circumstances, the admission of the evidence
would bring the administration of justice into disrepute:
Grant
at para. 71

[34]

Where the trial judge has considered these factors, and has not made any
unreasonable findings, an appellate court must approach its determination under
s. 24(2) with considerable deference, unless there has been an extricable
error in principle in characterizing the standard or in its application. In
particular, the trial judges findings of fact must be respected, absent
palpable and overriding error:
Grant
at paras. 86, 129;
R. v.
Beaulieu
, 2010 SCC 7, at para. 5.

1.       Did the trial judge err by allowing the Crown to lead
evidence on the s. 24(2) hearing, and in his assessment of that evidence?

[35]

The focus of this ground of appeal is Cst. Murphys testimony that,
before he swore the affidavit, he knew the appellant was the person driving the
Volkswagen Touareg seen by surveillance at the meeting with Dhanda on July 12,
2007, but he inadvertently omitted this information from his affidavit. The
appellant argues the trial judge erred in permitting the Crown to recall Cst.
Murphy to testify to this at the s. 24(2) hearing. As well, he says the
judge misapprehended this evidence and, as a result, wrongly found it minimized
the severity of the s. 8 breach.

[36]

To assess these arguments it is necessary to set out Cst. Murphys
evidence on this point in some detail.

[37]

It is common ground that the police prepared a surveillance report of
the July 12, 2007 meeting that included information about the Volkswagen, and
forwarded this to Cst. Murphy before he swore the affidavit. Cst. Murphy first mentioned
a link between the appellant and the vehicle during his cross-examination at
the
voir dire
, when he was asked how he obtained the necessary
information to do a CPIC search on the appellant and answered:

A          That's -- I can't
say which I used to -- to make this query, but if you're asking -- well, for
instance when -- when this unknown male met Dhanda on July 12th the vehicle he
was in was leased to Jaswinder Singh Bains and the primary operator driver's
licence number was -- was attached to the -- to the registered owner
information.  So I would've been aware from the beginning when the -- when Mr. Bains'
name first came to my attention I would've been aware of his name and his
driver's licence number.  Which path I took on this date, no, I can't say one
or the other.

[38]

This was not pursued further by either party at that time. In his
voir
dire
ruling, the trial judge observed this information was not in the affidavit,
the vehicle was not listed in the searches done by the CFSEU, and the source
and timing of the information was unclear. He accordingly found it of little
evidentiary value.

[39]

At the s. 24(2) hearing, the Crown sought to recall Cst. Murphy to
give further details about the relationship between the appellant and the
Volkswagen to support its position that the seriousness of the s. 8 breach
was mitigated by the fact the police had had this alternative means of
identifying the appellant as UM 9373. The trial judge permitted Cst. Murphy to
testify over the objection of the defence.

[40]

Cst. Murphy gave the following evidence in-chief. He received the surveillance
report shortly after July 12, 2007, which provided the registered owner
information. This identified the appellant as the lessee of the vehicle and
gave the primary operators drivers licence number, but did not include the
operators name. He ran that drivers licence and found it was issued to the
appellant. He knew this before he swore the affidavit. It was his practice to
confirm information from such searches just before swearing an affidavit. He
did so on August 6, 2007, and these confirmatory searches were listed in para. 86
of the affidavit. The searches related to the Volkswagen were not included in that
paragraph due to oversight on his part, most likely due to the large volume of
information collected during the investigation.

[41]

On cross-examination, Cst. Murphy agreed he had no notes of the vehicle searches
he did on August 6, but said all of these were set out in para. 86. This exchange
then took place:

Q         Yes, okay.  I just -- and I'm just really
trying to be clear on this.  When you referred to the Touareg registered owner
information not being included in the affidavit and you said "That was an
oversight on my part," I take it that the oversight was the non-inclusion
-- or sorry, the oversight was in part you didn't run the same kinds of checks
that we see at paragraph 86 on that plate number on August 6th.  Correct?

A          I can't say offhand.  No, I'd -- I'm sure
that would be captured within the computer system, but I can't recall, so
whether I -- I had made the query and then omitted to put it in the affidavit
or just forgot about it completely, I really can't say.

Q         Okay, but let me -- let me get it to what
document you do rely on for the plate number and lessee information.  It's a
surveillance report, correct?

A          Initially, yes.  That was the first time --

Q         Yeah.

A          -- I learned of
that -- that information, so I knew it at that time.  Whether I confirmed it,
like I said I just don't recall whether I confirmed it again in August.

[42]

The trial judge made these findings with respect to this evidence:

[13]      Cst. Murphy testified how he prepared his
affidavit. He said his practice was to review surveillance reports from
investigators. In a report from July, 2007 it was reported that Dhanda was seen
meeting with a person ultimately identified as Mr. Bains. That person was
driving a Volkswagen Touareg automobile with license plate number 241 AJP. The
report also included information that Mr. Bains was the lessee of the vehicle
and the primary operator with a BC driver license number of 5387305.

[14]      Cst. Murphy testified his practice was to review
information such as the surveillance reports when he received them. It was also
his practice to confirm information prior to swearing the affidavit in support
of the Authorization. Cst. Murphy said the information regarding the Touareg
automobile including the registration information was omitted from his
affidavit due to an oversight on his part. He explained the oversight was the
result of the volume and complexity of the information involved in the
preparation [of] his affidavit.

[15]      Cst. Murphy was [a] credible
witness. I am satisfied that he was aware of the information regarding the
Touareg from the surveillance report and before he swore his affidavit. His
explanation for omitting the information regarding the Touareg was credible and
understandable in the circumstances. The omission of this information was an
inadvertent oversight on the part of Cst. Murphy.

[43]

Turning to the appellants first argument, he points out the evidence linking
the appellant and the Volkswagen was effectively ignored by both parties on the
voir dire
, and the trial judge found it of little value. The appellant contends
it was an unprecedented and significant error of law for the trial judge then to
allow the Crown to recall Cst. Murphy to expand on this evidence at the
s. 24(2) hearing, and says this wrongly permitted the judge to reconsider his
testimony on this issue and make an inconsistent finding as to its import.

[44]

In support, the appellant relies on cases such as
R. v. Wilson
,
2011 BCCA 252, which impose limits on the Crowns ability to lead evidence to
amplify the contents of an information to obtain, because this would subvert
the prior judicial authorization requirement. He maintains the same principle must
apply to an attempt by the Crown to amplify its position on a s. 24(2)
hearing. As well, he points to
R. v. Dhillon
, 2010 ONCA 582, a case in
which the accused successfully appealed the trial judges decision to admit
evidence obtained as a result of a breach of his rights under s. 8 of the
Charter
.
In allowing the appeal, the Court, at para. 63, commented that because the
Crown had acknowledged it was not entitled to amplify the record in a manner
that circumvented the prior judicial authorization requirement, there was no
basis for holding it was entitled to amplify the record for the s. 24(2)
application.

[45]

I am unable to accept that evidence led by the Crown on a s. 24(2)
hearing in an effort to mitigate the seriousness of a
Charter
breach is
analogous to evidence presented to amplify an information to obtain. At the
s. 24(2) stage, the breach has been established, and there can be no
complaint that the evidence is directed to circumventing prior judicial
authorization. The comment to the contrary in
Dhillon
was
obiter
,
and is contrary to authority in other jurisdictions. For example, in
R. v.
Blizzard
, 2002 NBCA 13, the New Brunswick Court of Appeal held the trial
judges refusal to allow the Crown to lead evidence at a s. 24(2) inquiry
to explain an error in the affidavit and mitigate the seriousness of the breach
was a reversible error of law. This Court condoned a similar strategy in
Stanton
,
and upheld the trial judges decision to permit the Crown to lead evidence
indicating an error in the authorization did not stem from a pattern of abuse
by state agents.

[46]

Nor do I agree that permitting the Crown to recall Cst. Murphy led the trial
judge to reach inconsistent decisions on the same testimony. His observation in
his
voir dire
ruling that he found Cst. Murphys cursory evidence about
the Volkswagen of no help in amplifying the information to obtain is of no
moment to his assessment of the officers more comprehensive evidence on this
topic at the s. 24(2) hearing. The substance, purpose, and import of the
evidence in each case were entirely different.

[47]

I conclude the trial judge made no error in admitting and considering
Cst. Murphys evidence on the s. 24(2) hearing. It was potentially
relevant to the good faith of the police in naming the appellant as a primary
target in the affidavit, and to discoverability as a factor in assessing the
seriousness of the
Charter
-infringing state conduct and the impact of
the breach on the appellants
Charter
rights.

[48]

The appellants second point arises from the trial judges conclusions
at paras. 13-15 of his ruling, set out above. He argues that, in finding Cst.
Murphy a credible witness and accepting his testimony that the appellant was
known to the police as the operator of the Volkswagen before the affidavit was
sworn, the trial judge misapprehended the officers testimony. The appellant
says on a proper interpretation of this evidence, the surveillance report only
set out the vehicle licence and drivers licence numbers and did not name the
appellant. Further, Cst. Murphys evidence on cross-examination demonstrates he
did not do a search that linked the appellant to the Volkswagen before he swore
the affidavit. The appellant says the fact the Volkswagen is not listed with
the other vehicle searches in the affidavit supports this interpretation. He
maintains there was thus no evidentiary foundation for the trial judges
conclusion that Cst. Murphy knew of the connection between the appellant and
the vehicle before he swore the affidavit, and the judge erred in using this
evidence to mitigate the severity of the s. 8 breach. When the state
conduct on this point is properly assessed, he submits the evidence must be
excluded.

[49]

I do not agree that the trial judge misapprehended Cst. Murphys
evidence in any significant way. Instead, his evidence read as a whole supports
the trial judges findings at paras. 13-15 of his reasons with one
insignificant exception. The trial judge did err in finding, at para. 13,
that the surveillance report named the appellant as the Volkswagens operator.
That error has no impact on the substance of his conclusions, however, since it
is clear the report set out registered owner information that named the
appellant as the Volkswagens lessee and gave a drivers licence number for its
primary operator. Cst. Murphy searched that number before he swore the
affidavit, thereby identifying the appellant as the vehicles operator. The
search he neglected to do was the later confirmatory search that he typically
performed immediately before swearing the affidavit. This lapse led him to inadvertently
omit the information linking the vehicle and the appellant.

[50]

I would not accede to this ground of appeal.

2.       Did
the trial judge err in considering the discoverability of the appellants
identity?

[51]

The concept of discoverability in a s. 24(2) analysis refers to
whether the evidence under review could have been discovered by the police
using lawful means that did not breach the accuseds
Charter
rights.
Discoverability is relevant to both the seriousness of the
Charter
-infringing
state conduct and the impact of the breach on the rights of the accused. With
respect to the former, discoverability may cut both ways. If the police deliberately
ignore an alternative lawful means of obtaining the same evidence, the
Charter
-breaching
state conduct becomes more egregious; if there was a legitimate reason for
excluding that avenue, the state conduct will be viewed less severely. As to
its impact on the accused, a breach will be viewed as less intrusive where the
evidence could have been obtained by other lawful means, but the extent of the
accuseds expectation of privacy remains an important consideration:
R. v. C
ô
t
é
, 2011 SCC 46, at paras. 71-73.

[52]

The appellants arguments on this ground of appeal arise from these
comments of Justice Cromwell, writing for the Court, at para. 70 of
C
ô
t
é
:

While discoverability may still
play a useful role in the s. 24(2) analysis, it is not determinative. A
finding of discoverability should not be seen as necessarily leading to
admission of evidence. Nor should courts engage in speculation. As stated in
Grant
,

where it cannot be determined with any confidence whether evidence would
have been discovered in the absence of the
Charter
breach,
discoverability will have no impact on the s. 24(2) inquiry. ...

[53]

The appellant argues, first, that the trial judge wrongly engaged in
speculation in finding that the police could have obtained an authorization to
lawfully intercept communications from UM 9373. He submits the trial judge
should have excised not just paras. 90 and 91 from the affidavit due to the
s. 9 breach, but everything else that referred to him as well, such as the
searches in paras. 87d and 92 describing his familys trucking business, and
all references to the conspiracy to export marihuana, in paras. 444-469. Once
that information is eliminated, he contends that the involvement of UM 9373 was
at best incidental, or unknown, when the police applied for the authorization,
and it cannot be determined with any confidence that they would have applied to
name this person as a target, or that an authorization would have been granted
to intercept his communications. Moreover, he contends the conversations
between UM 9373 and Dhanda were innocuous; other similarly-involved individuals
were not named as targets; and the conversations between UM 9373 and
Dhanda were known to police when they applied for P.32, yet UM 9373 was
not named as a target then.

[54]

Further, the appellant submits that once the police decided to name the
appellant as a primary target they were stuck with that choice and cannot now
use their knowledge of UM 9373 or Jetti to rely on the resort to clause in
P.40 to intercept the calls of 2428.

[55]

I see no merit in this ground of appeal. The trial judges conclusions
that evidence of the communications on telephone numbers 9373 and 2428 were
otherwise discoverable were based on his findings of fact and credibility. There
was evidentiary support for those conclusions, and they cannot be described as speculative.
Further, I am not persuaded that the breach of the appellants rights under
s. 8 required the trial judge to excise the references to UM 9373 and
Jetti from the affidavit. Nor am I convinced that excising the references to
the corporate searches would have had any significant impact on the trial
judges findings on this point.

[56]

The trial judge initially addressed the evidence describing the role of
UM 9373 in his ruling on the
voir dire
, when he rejected the defence
contention that, absent the appellants identity, the affidavit revealed no
reasonable basis on which to infer that interception of the communications of
UM 9373, or Jetti, would assist in the investigation of the offences
contemplated by P.40. In reaching that conclusion, the judge reviewed the contents
of the affidavit, and was satisfied UM 9373 had accompanied Dhanda on the
lengthy trip related to the attempt to export marihuana, and the CFSEU
investigation did not end when that scheme was aborted. Those findings are not
challenged on appeal. The trial judge revisited this issue, albeit in a
somewhat different context, in considering discoverability in his s. 24(2)
ruling, and reached the same result. His conclusions were based on his assessment
of the affidavit, and the evidence of Cst. Murphy and Ms. Chahal, both of
whom he found credible. The appellant has not pointed to a palpable and
over-riding error in the trial judges findings, and I would not interfere with
them.

[57]

The interception of communications using 2428 had nothing to do with the
naming of the appellant. It arose from communications between that number and
Ho, a primary target under P.40, Ms. Chahals identification of 2428 as UM
9373, and the resort to clause in P.40.

[58]

The appellant also asserts the trial judge gave too much weight to
discoverability in minimizing both the seriousness of the
Charter
-infringing
state conduct and the impact of the s. 8 breach on the appellants right
to privacy. He says the result was an overly superficial analysis that wrongly
led to admission of the evidence, and maintains the trial judge should instead
have followed
R. v. Sanghera
, 2012 BCSC 541, a case in which an
authorization permitted interception of calls made by the accused from a mobile
phone that was obtained in an unlawful search. In assessing the impact of this
breach on the accuseds
Charter
rights in her s. 24(2) analysis, the
trial judge declined to give significant weight to the fact the calls would
have been discoverable in any event through the resort to clause in the
authorization. She contrasted the fleeting nature of wiretap interceptions
obtained through a
Charter
breach with more concrete evidence that
exists apart from the breach and remains available for discovery:

[29]      Wiretap interception,
by contrast, operates as an ongoing process which either captures
communications as they occur or loses them forever.  The concept of inevitable
discovery therefore has little meaning in a practical or actual sense, and
instead amounts to an assertion that the police could have taken alternative
steps to ensure that the interceptions in issue fell within the scope of valid
portions of the Authorization.

[59]

In
Sanghera
, the judge was not convinced the police could have taken
steps to meet that high standard. By contrast, the trial judges findings here
produce greater certainty that the alternative steps referred to in
Sanghera
were available to the police, independent of the s. 8 breach.

[60]

Nor am I persuaded that the trial judge gave inordinate weight to discoverability.
He recognized the high expectation of privacy in private communications, and
considered the intrusiveness of electronic surveillance. He did not conclude
that discoverability trumped these features, only that it diminished the impact
of the breach in the circumstances. It was for the trial judge to weigh this
factor, and this finding was open to him, given the strength of the evidence
that UM 9373 was involved in the drug conspiracy.

3.       Did
the trial judge err in finding the police had acted in good faith?

[61]

The appellant challenges the trial judges finding that the police acted
in good faith in pursuing this investigation. He says it is more accurately
described as a finding that Cst. Murphy did not act in bad faith, and the trial
judge failed to appreciate that the absence of bad faith cannot be equated with
good faith. As well, the appellant asserts the judge erred by placing
unreasonable reliance on his finding of good faith.

[62]

In support of these arguments, the appellant points to several aspects
of the investigation that he describes as sloppy and incomplete. The most
significant relate to Cst. Murphys unquestioning reliance on Sgt. McLeans traffic
stop without further inquiry; Cst. Murphys failure to confirm and include in
the affidavit his investigation of the appellants link to the Volkswagen; and the
unauthorized interception of 2848. The appellant maintains these features of
the investigation cannot be equated with good faith.

[63]

I earlier dealt with the appellants complaints concerning the
information derived from the Volkswagen and the interception of 2848. For the
reasons previously expressed, I am satisfied the trial judges findings of fact
and credibility as to the validity of these aspects of the investigation
preclude the appellant from relying on them as evidence of bad faith.

[64]

With respect to the appellants complaint that Cst. Murphys reliance on
Cst. McLeans traffic stop was unwarranted, he points to the findings of
the trial judge as to the many defects in Cst. McLeans investigation and
report of the traffic stop. In essence, he found Cst. McLean had no useful
recollection of his dealings with the appellant, and his minimal notes provided
no justification for stopping him on suspicion of impairment. The appellant
argues that if Cst. Murphy had made proper inquiries and read Cst. McLeans
report, it would have been obvious that the stop was unlawful and could not
form the basis for identifying the appellant in the affidavit. The appellant
maintains the officers failure to take these steps establishes negligence and
is inconsistent with good faith, particularly since para. 98 of the affidavit
demonstrates Cst. Murphy confirmed the accuracy of information provided by
other participants in the investigation.

[65]

The difficulty in assessing this contention is that it was not raised
below, and Cst. Murphy was not cross-examined about it. On the evidence
available, the trial judge found it was reasonable for him to rely on
information from another officer, and accepted the nature of the stop was not
known until trial. Without further knowledge of this aspect of the
investigation, I would not interfere with those findings.

[66]

The trial judge made clear and repeated findings consistent with his
conclusion that the police acted in good faith. These were based on his assessment
of the facts and Cst. Murphys credibility. In
C
ô
t
é
, at para. 51, the
Supreme Court reminds us that an appellate court may not re-characterize the
evidence or substitute its own view of police conduct for that of the trial
judge in the absence of any clear and determinative error. I am not persuaded
the appellants complaints on this ground of appeal demonstrate such an error.

Conclusion

[67]

I would dismiss the appeal.

The
Honourable Madam Justice Neilson

I AGREE:

The Honourable Madam Justice
Newbury

I AGREE:

The Honourable Mr. Justice
Willcock