



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


