



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Tan
,









2014 BCCA 9




Date: 20140110

Docket: CA039392

Between:

Regina

Respondent

And

Kien Beng Tan

Appellant



Restriction
on Publication: There is a ban on publication under s. 486.5(2) of the
Criminal
Code
, which prohibits the publication, broadcast or transmission of any
information that could identify the undercover officers in this case.




Before:



The Honourable Mr. Justice Hall

The Honourable Madam Justice Bennett

The Honourable Madam Justice MacKenzie




On appeal from: Supreme
Court of British Columbia, dated February 11, 2011,
(
R. v. Tan
, 2011 BCSC 335, Vancouver Docket 24821).




Counsel for the Appellant Kien Beng Tan:



H. Patey





Counsel for the Respondent:



M.J. Brundrett





Place and Date of Hearing:



Vancouver, British
  Columbia

June 19, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2014





Written Reasons by:





The Honourable Madam Justice Bennett





Concurred in by:





The Honourable Mr. Justice Hall

The Honourable Madam Justice MacKenzie










Summary:

The appellant was convicted
of second-degree murder by a judge alone. His appeal focussed on three issues:
(1) whether the RCMP breached the Charter in the process of collecting evidence
abroad, (2) whether the statements he made to an undercover police officer
posing as his cell mate were admissible, and (3) whether the confession he made
during a police interrogation was voluntary.

Held: appeal dismissed;
conviction upheld. Subject to two exceptions and the overriding requirement of
trial fairness, the Charter does not apply to Canadian officers acting in a
foreign jurisdiction. In this case, there was insufficient evidence to
establish that Malaysia had provided positive consent to the application of the
Canadian Charter to an investigation on their soil. Therefore the Charter did
not apply. The trial judge properly admitted the appellants statements to the
undercover officer and his confession. The appellant spoke freely to the
undercover officer and there was no evidence of oppression or trickery that
would shock the conscience of Canadians.

Reasons
for Judgment of the Honourable Madam Justice Bennett:

I.

Introduction

[1]

The appellant, Kien Beng Tan, appeals his conviction for the
second-degree murder of Sonny Le. On February 11, 2011, Mr. Tan was
convicted following a judge alone trial.

[2]

Mr. Tan challenges a number of rulings decided in two
voir dires
made by the trial judge, all of which concern the evidence gathered by police
throughout the investigation, and at times went beyond the borders of Canada. Mr. Tan
argues that the actions of the police within Canada and beyond demonstrate a
pattern of conduct that violated his rights under the
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 (the 
Charter
).
He asks that his conviction be set aside and that a new trial be ordered.

[3]

The trial judges rulings are indexed at 2010 BCSC 1948
(
Voir Dires
Nos. 1, 2 and 4) and 2011 BCSC 334 (
Voir Dire
No. 3).

[4]

This appeal raises complex issues regarding the application of the
Charter
beyond Canadas borders. It raises the issue of the admissibility of evidence
spoken in Cantonese and gathered by an officer posing as a cell plant. Finally,
it raises the issue of the voluntariness of a confession made during a police
interrogation.

[5]

I have concluded that the trial judge made no error in his rulings on
the
voir dires
. I would dismiss the appeal.

II.

Background

[6]

Sonny Le was the proprietor of
Lees
Jewellers and Loans
, a pawn shop in Richmond, British Columbia. On May 7,
2004, his body was discovered in his store  stabbed three times in his chest.
The stab wounds were concentrated in a small group in and around his heart.

[7]

The police discovered a latent thumb print and
palm print from the glass display case next to Mr. Les body. The two
prints were later identified as belonging to the appellant, Kien Beng Tan. Mr. Tan
was a customer and had frequented the store several times before the death of Mr. Le.
The police also discovered five pawn receipts that were in Mr. Tans name,
including one dated May 5, 2004, the day that Mr. Le was killed.

[8]

Following the death of Mr. Le, Mr. Tan
travelled to Malaysia. In 2006, two RCMP officers travelled to Malaysia. They
contacted Malaysian authorities to seek permission to interview Mr. Tan.
The Malaysian law enforcement authorities, the Royal Malaysian Police (RMP),
contacted Mr. Tan, asking him whether he would submit to RCMP questioning.
He agreed. Mr. Tan was interviewed by the RCMP in a hotel in Penang. A
member of the RMP translated. Mr. Tan agreed to provide the RCMP with
fingerprints, and did so without the physical guidance of the officers.

[9]

The fingerprints taken in Malaysia matched those
taken at the crime scene. Back in Canada, however, Crown counsel was of the
opinion that, under the prevailing law of the day (
R. v. Cook
, [1998] 2
S.C.R. 597), the conduct of the RCMP would not pass
Charter
scrutiny. At
trial, Crown counsel did not tender any evidence (statements or fingerprints)
obtained by Canadian police in Malaysia. Mr. Tan would subsequently provide
further sets of fingerprints in the course of the investigation.

[10]

Sometime after the interview, the RCMP learned
that Mr. Tan was in custody in Belgium on unrelated charges. Pursuant to
an international legal assistance request, the Belgian police forwarded Mr. Tans
finger and palm prints to the RCMP. These matched the latent prints on the
display case. The RCMP swore an information and issued a warrant for Mr. Tans
arrest. Two RCMP officers, Sergeant Dhillon and Corporal Wellington, flew to
Belgium, took Mr. Tan into custody and escorted him to Canada. The plane
landed in Toronto and the party cleared customs there. While in Toronto, police
obtained another palm print from Mr. Tan.

[11]

Sergeant Dhillon attempted to record his
conversations with Mr. Tan during their journey to Vancouver. His digital
audio recording device, however, stopped at some point during the
Belgium-Toronto leg of the journey. No notes were taken until after they
arrived in Toronto. Corporal Wellington testified later that nothing was
discussed on the flight in relation to the investigation. Sergeant Dhillon was
unable to recall the conversations he may have had with Mr. Tan on the
flights from Belgium to Toronto or from Toronto to Vancouver, but stated he did
not discuss the investigation. At trial, however, an audio recording was played
for Sergeant Dhillon in which he said to Mr. Tan, [b]ut I told you before
in this case youre not going home for a long time (
Voir Dire
No. 3,
at paras. 9-12).

Sergeant Dhillon could also not recall whether Mr. Tan
asked to speak with counsel in Toronto, but a recording was put to him in which
this request was made.

[12]

When the group first arrived in Richmond,
British Columbia the police took additional fingerprints, which were used for
comparison purposes, in addition to the palm print taken in Toronto.

[13]

Once in Vancouver, Mr. Tan spoke to
counsel. He was then transported with an undercover officer, posing as another
individual in police custody. They were lodged in the same cell, and Mr. Tan
spoke to the undercover officer before, during and after he was interviewed by
Sergeant Dhillon. The officer spoke Mr. Tans first language, Cantonese,
but was not a formally trained translator, and admitted to having some
difficulty understanding Mr. Tan at times. He said his Cantonese was good
enough to understand Mr. Tan at the critical junctures. Mr. Tan also
spoke English occasionally. Audio recordings were made of their discussions.

[14]

The next day, Sergeant Dhillon of the RCMP interrogated
Mr. Tan over an eight-hour period. This was video-recorded. Sergeant
Dhillon began by confirming that Mr. Tan had slept and eaten and no one
had disturbed him the night before. Sergeant Dhillon added that he could not
threaten or make an offer and that anything Mr. Tan said would be on his
own accord. During the interview, Sergeant Dhillon showed Mr. Tan pictures
of the crime scene and played a pre-recorded emotional statement from the
victims daughter. Eventually, Mr. Tan confessed to killing Mr. Le,
and provided details of the killing, including his motivation: the victim was
allegedly charging him extra money for the return of pawned items; this was a
matter of respect. He also drew a picture of the knife he used. Mr. Tan
agreed to write an apology letter to Mr. Les daughter, which was later
given to police.

Police subsequently indicted Mr. Tan for
second-degree murder.

[15]

After the interview, Mr. Tan returned to
his cell and made further incriminating statements to the undercover officer.

III.

Rulings on
Voir Dire

[16]

During the course of the trial, Mr. Tan
applied for certain
voir dires
to determine whether the RCMP breached
his
Charter
rights in the course of the investigation. The issue before
the trial judge was whether there was some basis on which holding a
voir
dire
might assist the Court in resolving an issue. The trial judge
summarized the issues before him at para. 5 (
Voir Dires
Nos. 1, 2
and 4):

Tan says that there are at least four breaches of his
Charter
rights arising from the police investigation:

1.         Records including
registration and telephone records concerning Tan which were obtained from the
Comfort Inn without a warrant (the Hotel Registration Records and the Hotel
Telephone Records);

2.         Airline Ticketing
Information concerning Tan were obtained from Campbell Travel without a warrant
(the Airline Ticketing Information). Those matters are both the subject of
the application for
Voir Dire
No. 1;

3.         Fingerprints were
obtained from Tan while he was in Malaysia in 2006 (the Malaysian Fingerprints).
That matter was the application for
Voir Dire
No. 2; and

4.         There was a warrantless interception of his
private telephone conversation without prior judicial authorization (the Telephone
Wiretap).

[17]

Aside from the Hotel Registration Records and
Airline Ticketing Information, the Crown did not seek to introduce any of the
impugned information as evidence. Mr. Tan argued, however, that there was
a temporal and causal connection between the alleged infringement of his
Charter
rights in collecting evidence that was not being relied on and the evidence
that was ultimately relied on by the Crown. Furthermore, he submitted that the
record indicated a consistent pattern of police conduct ignoring his rights.

[18]

The trial judge refused to hold the
voir dires
on issues 1-4. His rulings on issues 1, 2 and 4 are not before this Court. On
issue 3, the judge refused to hold a
voir dire
to consider whether the
RCMP breached Mr. Tans rights in Malaysia because, as the
Charter
did not apply to the actions of the RCMP officers abroad and no consent of the
Malaysian state was demonstrated, the events in Malaysia could not establish a
Charter
breach. In paras. 33-40 (
Voir Dires
Nos. 1, 2 and 4), the trial
judge considered the law on the extraterritorial application of the
Charter
and the issue of whether Malaysian officials consented to its application:

[33]      Counsel for Tan cross-examined the Canadian
investigating officers at length regarding matters informing Malaysian
sovereignty. They sought to demonstrate that Canadian law applied in the
circumstances so as to open the Malaysian interview and the Malaysian
Fingerprints to
Charter
scrutiny.

[34]      Despite that very capable cross-examination, in my
view it established no more than the officers intended that their actions, and
those of anyone else during the process, in relation to Tan would pass
Charter
scrutiny. The officers were acting under the authority of the RMP and the
applicable law was Malaysian law, i.e., the RMP made it clear that Tan could
only be questioned if he consented to such questioning, could only be
questioned where he wanted to be questioned, and regardless of the outcome of
the questioning, Tan was not subject to arrest.

[35]      At the time of these events the accepted law in
Canada on the extra-territorial operation of the
Charter
is that
reviewed in
R. v. Cook
, [1998] 2 S.C.R. 597, 57 B.C.L.R. (3d) 215. In
Cook
the court held that the
Charter
applies to the actions of Canadian
police interviewing an accused in the United States, and its application there
did not interfere with the sovereign authority of the United States. The law in
Cook
, however, was reconsidered by the Supreme Court of Canada in
R.
v. Hape
, 2007 SCC 26.

[36]      In
Hape
the majority concludes that the
Charter
does not apply to the actions of police officers who are operating on the
territory of other states except in exceptional circumstances. Those
exceptional circumstances are that the foreign state grants permission for
Canadian law to be applied on its territory. This is supported by a
consideration of section 32 of the
Charter
, which in its relevant
respect restricts the
Charter
s territorial reach and limits to matters ...within
the authority of Parliament.... This is consistent with the reasoning in
R.
v. Terry
, [1996] 2 S.C.R. 207, 135 D.L.R. (4th) 214 and
R. v. Harrer
,
[1995] 3 S.C.R. 562, 128 D.L.R. (4th) 98.

[37]      In my opinion, the evidence falls well short of
establishing even a
prima facie
case that there was agreement to apply
Canadian law. The Crown raises, quite rightly in my view, the fact that the
actors here are simply police officials operating on the ground floor. There is
no suggestion of any diplomatic accord, or agreement between authorized government
officials.
The majority in
Hape
discusses the issue
generally as follows
[Quotation omitted.]

[38]      As noted in
Hape
at para. 117 [a]
cooperative effort involving police from different countries does not make the
law of one country applicable in the other country:
Terry
, at para. 18.
A cooperative effort, in any event, does not give rise to conferring
jurisdiction for
enforcement
, which the court in
Hape
finds
necessary for a matter to fall within the authority of Parliament and the
provincial legislatures:
Hape
, para. 69.


[39]      It is suggested that because of the majorities
involved in the respective decisions,
Hape
cannot and does not overrule
Cook
.
The Supreme Court of Canada in
Hape
is expressly reconsidering
Cook
.
If
Cook
is not expressly or impliedly overruled it must be considered by
this trial court to be confined to its own facts.

[40]      In the circumstances,
as the
Charter
has no extra-territorial application, and there is no
evidence of an agreement to apply the
Charter
extra-territorially
between Canada and Malaysia, no breach of a
Charter
right can be shown
by the events in Malaysia. It therefore is unnecessary to hold a
voir dire
regarding the obtaining of the Malaysian Fingerprints.

[19]

A
voir dire
was held to determine whether
to exclude evidence obtained from the undercover officer, who is referred to in
the judges reasons as Constable N.

[20]

Before the trial judge, Mr. Tan argued that
the evidence of the undercover officer should not be admitted for three
reasons: (1) the transcript is unreliable because the officer was not a
qualified translator, and the probative value of the evidence was outweighed by
its prejudicial effect; (2) the evidence was tainted by Sergeant Dhillons interrogation;
and (3) the undercover officer elicited the evidence.

[21]

The judge admitted the evidence. He found that
the probative value of the statement was not outweighed by its prejudicial
effect, concluding at para. 71 that there was only some chance that an
inexpert translation might [have affected his] perception of the evidence. He
then found that there was no tainting of the discussions in the cell by reason
of the fact that some evidence was obtained after Mr. Tans interview with
Sergeant Dhillon. At paras. 101-103, the judge turned to elicitation, and
concluded as follows:

[101]    Considering the totality of the circumstances,
including the sequencing with the prior interrogation, I am satisfied that Tan
made a free choice to speak to his cell mate. Constable N did not guide the
conversation to sensitive matters. In fact, the evidence shows that it was Tan
who often controlled the conversation and who willingly
,
returned again
and again to the subject of the investigation, his statements and the letter he
was trying to write to the victims daughter.

[102]    It therefore follows that I do not find that any
part of the conversation amounted to the functional equivalent of an
interrogation. In reaching this conclusion, I have considered that there was no
relationship of trust between Constable N and Tan, such as existed between the
police agent and the accused in
Broyles
[[1991] 3 S.C.R. 595]. Constable
N acted in the role of a cell mate who had befriended a stranger and who showed
interest in him. He played his role well and within the bounds of what is permissible
under the
Charter.

[103]    In the circumstances, in my opinion, the statements
made by Tan to Constable N were
not elicited
, in violation of Tans
Charter
right to silence.

[Italics in original.]

[22]

In a separate
voir dire
(
Voir Dire
No. 3), Mr. Tan argued that his confession to the police was not
voluntary. He argued that the record of his interaction with officers was
incomplete over the course of the return flight to Canada, which, he claimed,
raised a reasonable doubt as to whether there was a threat or inducement.

[23]

Mr. Tan did not testify on the
voir dire
.

[24]

The trial judge concluded that the confession to
police was voluntary, even though there were some gaps in the evidence as to
what may have been said to Mr. Tan while he was in custody before his
interrogation. The trial judge found that the confessions were a result of the
evidence being presented to Mr. Tan and that the Crown established beyond
a reasonable doubt that Mr. Tans statement to police was voluntary  that
is, it was made without improper inducements or threats, in an atmosphere free
of oppression, by an accused with an operating mind, and without impermissible
police trickery (at para. 93). Mr. Tans constitutional right to
remain silent was not breached. The trial judge concluded that evidence of the
confession was admissible.

[25]

In his reasons for judgment, the trial judge
found that there was no issue as to who killed Mr. Le. He came to this
conclusion on the basis of the fingerprints found in Mr. Les blood and Mr. Tans
confession.

[26]

The main issue was whether Mr. Tan had the
requisite level of intent for second-degree murder. The Crowns theory was that
Mr. Tan stabbed Mr. Le once from across the counter, and then, in
quick succession, stabbed him twice more from behind the counter. The Crown
argued that these actions were consistent with an individual who means to cause
the death of another. This theory was supported by a re-enactment given by Mr. Tan
to police during his interrogation. The defence accepted that the wounds were
made in quick succession, but argued this was consistent with a provoked
attack, thus providing evidence of something less than the
mens rea
required for murder.

[27]

The trial judge accepted the Crowns theory. He
also rejected the submission of the defence that the stab wounds were
insufficient evidence to infer that Mr. Tan had the requisite intent to
commit murder. He found beyond a reasonable doubt that Mr. Tan had the
requisite intent. On this basis, the trial judge concluded that Mr. Tan
was guilty of second degree murder.

IV.

Issues on appeal

[28]

Mr. Tan raises the following grounds of appeal:

1.         The learned trial judge erred in
law by refusing to hold a
voir dire
to determine whether or not the
Appellants rights as protected by section 8 of the
Charter
were
infringed by the RCMPs actions in Malaysia in 2006.

2.         The learned trial judge erred in
admitting the English transcript of the cell plant operation into evidence
without considering whether that evidence met the threshold for admissibility
of expert evidence.

3.         The
learned trial judge erred in ruling that the Crown had proven beyond a
reasonable doubt that the Appellants statement to Sgt. Dhillon was voluntary.

V.

Discussion

A.

Did the trial judge err in refusing to hold a voir dire into whether
Mr. Tans s. 8 rights were violated in Malaysia?

1.

Positions of the Parties

[29]

The trial judge concluded that no
voir dire
was necessary because
Mr. Tans
Charter
rights were not engaged extraterritorially when
Canadian police interviewed him. In his view, there was no evidence that
Malaysia had agreed to the application of Canadian constitutional law to the
interrogation  the testimony of Canadian officers establishes only their own
views on the matter. Rather, in the view of the trial judge, consent had to be
demonstrated through the agreement of authorized Malaysian government
officials.

[30]

He applied the test in
R. v. Vukelich
(1996), 108 C.C.C. (3d) 193
at para. 26 (B.C.C.A.), where this Court held that an accused is not
always entitled to a
voir dire
to challenge the constitutionality of the
admission of evidence.

[31]

Mr. Tan argues that the trial judge erred in admitting the
Malaysian evidence without first holding a
voir dire
to determine
whether his s. 8
Charter
rights were infringed by the RCMPs
actions in Malaysia. He says there was evidence to show Malaysian officials
consented to the application of the
Charter
and the trial judge erred in
finding otherwise. At a minimum, a
voir dire
should have been held.

[32]

The Crown says the trial judge made no error and was correct in
concluding that the
Charter
, absent the consent of an authorized
official, does not apply extraterritorially. It says the judge was correct in
concluding there was insufficient evidence that Malaysian officials consented
to the application of the
Charter
in their territory.

2.

Analysis

a)

The Extraterritorial Application of the
Charter

i.

Overview

[33]

The starting point for the application of the
Charter
is s. 32, which states:

32.
(1) This Charter
applies

(
a
)   to the
Parliament and government of Canada in respect of all matters within the
authority of Parliament including all matters relating to the Yukon Territory
and Northwest Territories; and

(
b
)   to the legislature and government
of each province in respect of all matters within the authority of the
legislature of each province

[34]

Section 32 defines the parameters of the application of the
Charter
extraterritorially.
The
Charter
does not have
extraterritorial application over the actions of foreign authorities:
R. v.
Harrer
, [1995] 3 S.C.R. 562 at para. 35 (McLachlin J., concurring
reasons).

However, evidence
gathered by such authorities may still be subject to
Charter
scrutiny and
will be excluded where this is necessary to preserve the fairness of the trial
that is ultimately held in Canada: see generally
Harrer
;
R. v. Terry
,
[1996] 2 S.C.R. 207;
Schreiber v. Canada
, [1998] 1 S.C.R. 841. The test
is trial fairness and the standard is whether
the
admission of the evidence would be so grossly unfair as to repudiate the
values underlying our trial system and condone procedures which are anathema to
the Canadian conscience (
Harrer
, at para. 51).

[35]

The above cases concerned the actions of foreign
authorities  not Canadian ones  acting in foreign territory. In
Harrer
and
Terry
, the Supreme Court contemplated the latter situation, and
refused to foreclose the possibility of the application of the
Charter
to
an investigation by Canadian authorities abroad (
Harrer
, at para. 11).
This situation was considered by the Supreme Court in
R. v. Cook
, which
held that the
Charter
applied to the actions of Canadian law enforcement
officers, despite the fact that they were outside the territorial jurisdiction
of Canada, so long as their actions did not have an objectionable
extraterritorial effect.

[36]

In
R. v. Hape
,

2007 SCC 26, [2007]
2. S.C.R. 292
, the Supreme Court of Canada
effectively
overruled
Cook
:
Peter Hogg,
Constitutional Law of Canada
,
5th ed. (Looseleaf) (Toronto: Carswell, 2007) at 37-38;
Robert
J. Currie,
International & Transnational Criminal Law
(Toronto:
Irwin Law, 2010) at 531. Since
Cook
,
Hape
has been the
jurisprudential centre of gravity for the law on extraterritorial application
of the
Charter.
For this reason, I will set out the facts in more
detail.

[37]

The accused, Richard Hape, was prosecuted for
money laundering, which he conducted out of the island state of Turks and
Caicos. The RCMP began its investigation by contacting the Turks and Caicos
police. One detective superintendent agreed to help, provided that the
investigation would fall under his authority. The RCMP conducted a number of
searches of Mr. Hapes office on the islands, which were apparently
authorized by a warrant, though none was adduced into evidence at trial. The
RCMP also conducted perimeter searches without warrants, which would have been
required under Canadian law, but were not required by Turks and Caicos law. Mr. Hape
applied to have the evidence excluded on the basis that the searches violated
his s. 8 rights.

[38]

Justice LeBel, writing for himself and four
others, dismissed the appeal. The four other justices would also have dismissed
the appeal, but for different reasons.

[39]

Justice LeBel articulated a sweeping review of
international law principles and their application to the Canadian
constitution. He concluded that the
Charter
could not apply to govern
the actions of Canadian officials abroad. He reasoned as follows: principles of
customary international law, general practices and rules that are accepted by
states as law, are adopted by Canadian common law. The principles of
sovereignty and non-intervention are cornerstones of international customary
law. Section 32 of the
Charter
, which says that the
Charter
only
applies to matters within the authority of Parliament and the provincial
legislatures, must be read to comply with these principles of customary
international law. Applying the
Charter
to a Canadian investigation in a
foreign territory would do unacceptable violence to the principle of
sovereignty, as well as the non-binding principle of the comity of nations.
Applying the
Charter
to an investigation abroad would, by its very nature,
constitute an objectionable extraterritorial application of Canadian
enforcement jurisdiction. This enforcement jurisdiction is what was at issue
for LeBel J., and is what made the prior jurisprudence questionable:

[85]      The
Cook
approach therefore puts the focus in the wrong place, as it involves looking
for a conflict between concurrent jurisdictional claims, whereas the question
should instead be viewed as one of extraterritorial enforcement of Canadian
law. The issue in these cases is the applicability of the
Charter
to the
activities of Canadian officers conducting investigations abroad. The powers of
prescription and enforcement are both necessary to application of the
Charter
.
The
Charter
is prescriptive in that it sets out what the state and its
agents may and may not do in exercising the states powers. Prescription is not
in issue in the case at bar, but even so, the
Charter
cannot be applied
if compliance with its legal requirements cannot be enforced. Enforcement of
compliance with the
Charter
means that when state agents act, they must
do so in accordance with the requirements of the
Charter
so as to give
effect to Canadian law as it applies to the exercise of the state power at
issue. However, as has already been discussed, Canadian law cannot be enforced
in another states territory without that states consent. Since
extraterritorial enforcement is not possible, and enforcement is necessary for
the
Charter
to apply, extraterritorial application of the
Charter
is impossible.

[40]

Justice LeBel conceded that if the only
consequence of a
Charter
breach was the exclusion of evidence at the
ultimate Canadian trial, there would be no infringement on a foreign states
sovereignty (at para. 91). He opined, however, that because the
Charter
aims to
prevent
infringements before they occur, extraterritorial
enforcement jurisdiction would
always
be at issue, thus infringing the
sovereignty of the foreign state (at para. 84). In any event, the
Harrer-Terry
trial fairness analysis would apply to ensure minimum standards for evidence
tendered at trial (at paras. 108-111).

[41]

Finally, LeBel J. posited that while the
Charter
could not apply extraterritorially to limit investigations, the principle of
comity may give way where the participation of Canadian officers in
investigative activities sanctioned by foreign law would place Canada in
violation of its international obligations in respect of human rights (at para. 101).

[42]

LeBel J. summed up his approach at para. 113:

[113]

The methodology for determining whether the
Charter
applies
to a foreign investigation can be summarized as follows. The first stage is to
determine whether the activity in question falls under s. 32(1) such that
the
Charter
applies to it. At this stage, two questions reflecting the
two components of s. 32(1) must be asked. First, is the conduct at issue
that of a Canadian state actor? Second, if the answer is yes, it may be
necessary, depending on the facts of the case, to determine whether there is an
exception to the principle of sovereignty that would justify the application of
the
Charter
to the extraterritorial activities of the state actor. In
most cases, there will be no such exception and the
Charter
will not
apply. The inquiry would then move to the second stage, at which the court must
determine whether evidence obtained through the foreign investigation ought to
be excluded at trial because its admission would render the trial unfair.

[43]

Put simply, the
Hape
principle is this:
the
Charter
does not apply extraterritorially to Canadian authorities.
This is subject to two exceptions. The first exception is state consent. If the
foreign state consents to the application of the Canadian constitution, then
s. 32 is not an issue and the
Charter
may apply. The Court did not
define the meaning of consent. The second exception, described above, suggests that
even without consent of the foreign state, violations of Canadas international
human rights obligations may justify a remedy under the
Charter
(at para. 101).

[44]

Turning to the facts before him, LeBel J. found that
the cooperation of the Turks and Caicos Islands police did not amount to
consent to the exercise of Canadian enforcement jurisdiction, and therefore the
application of the Canadian
Charter
, within its territory. At para. 106,
he noted that consent was neither demonstrated nor argued on the facts, and
he declined to consider when and how it might be established. Later, Lebel J. stated
that [i]t is not reasonable to suggest that Turks and Caicos consented to
Canadian extraterritorial enforcement jurisdiction (at para. 115), but he
nonetheless undertook a factual analysis of the circumstances of the
investigation at paras. 115-117. I shall return to this analysis below.

[45]

Several courts, including the Supreme Court of Canada,
have since considered
Hape
, though not on the issue of foreign consent
(see for example
Re Canadian Security Intelligence Services Act
, 2008 FC
301). There is a paucity of cases from provincial appellate and trial courts
considering the
Hape
principle and the meaning of consent in the
circumstances of an investigation carried out by Canadian authorities extraterritorially.

[46]

One of the few cases to consider consent was
Amnesty
International Canada v. Canada (Canadian Forces)
, 2008 FC 336, affirmed
2008 FCA 401, leave to appeal dismissed, [2009] S.C.C.A. No. 63. In that
case, Madam Justice Mactavish dealt with the application of Amnesty
International and the British Columbia Civil Liberties Association for an order
that the
Charter
applied to Canadian Forces operating in Afghanistan.
Canadian Forces were handing over captured Taliban insurgents to Afghan
authorities. There were allegations that the detainees were subject to abuse
and even torture once in the hands of these authorities. There were two
questions before the Court, which I paraphrase: (1) does the
Charter
apply during armed conflict in Afghanistan to the detention of non-Canadians by
Canadian Forces or their transfer to Afghan authorities?; (2) if the answer to the
first question is no, would the
Charter
apply if the applicants
established that the detainees were subject to torture, such that Canada would
be in breach of its international human rights obligations? In other words, the
applicants sought to distinguish
Hape
and demonstrate consent on the one
hand, and, if that failed, they sought to rely on the international human
rights exception from
Hape
.

[47]

Amnesty
is an
important case for the purposes of this case because it engages in one of the
more extensive discussions of what is required for a sovereign state to consent
to the application of another states constitutional law.

[48]

Justice Mactavish engaged in a comprehensive
analysis of the various bilateral and multilateral agreements between
Afghanistan and Canada, and Afghanistan and the international community. The
applicants argued that because Afghanistan had, pursuant to several agreements
between the countries, ceded to Canada the power to detain and use deadly force
on its citizens at will, Afghanistan had consented to the application of the
Charter
.
Justice Mactavish rejected this argument. She found that while Afghanistan did
cede some rights to foreign powers, it did not consent to the wholesale
forfeiture of its sovereignty. She found that general agreements providing Afghanistans
consent for Canadian Forces to operate in Afghanistan, and specific, technical
agreements on assistance in the armed conflict, training, stabilization and law
enforcement activities did not provide for the application of Canadian
constitutional law, but instead provided for the application of the Afghan
Constitution and international law. Also, the more specific agreements
regarding detainees only provided for the application of the Geneva Convention.
On this basis, she concluded that Afghanistan did not consent to the
enforcement or application of the Canadian
Charter
over the conduct of
Canadian Forces in Afghanistan in relation to the detainees.

[49]

The Supreme Court of Canada has considered the
international human rights exception to the
Hape
principle on two
occasions and has accepted the availability of that exception:
Canada
(Justice) v. Khadr
, 2008 SCC 28, [2008] 2 S.C.R. 125;
Canada (Prime
Minister) v. Khadr
, 2010 SCC 3, [2010] 1 S.C.R. 44.

[50]

In sum, the state of the law is this: the
Charter
does not apply to Canadian state actors engaging in official duties
extraterritorially (
Hape
). This is subject to two exceptions: (1)
consent of the foreign state to the application of Canadian law in its
territory, though, as LeBel J. stated, [i]n most cases, there will be no such exception
and the
Charter
will not apply (
Hape
at para. 113); (2) the
participation of Canadian officials in activities that violate Canadas
international human rights obligations (
Hape
;
Khadr
2008;
Khadr
2010). Of course, any evidence tendered in a Canadian trial is always subject
to
Charter
scrutiny to determine if its admission would render the trial
unfair:
Harrer
;
Terry
.

ii.

Consent

[51]

I turn now to an analysis of the major issue in
relation to this ground of appeal: whether there was evidence that Malaysia
consented to the application of the
Charter
in its territory and whether
the
Charter
applies in this case to the actions of Canadian officials
abroad evoking the need for a
voir dire
. Accordingly, I will consider
the nature and requirements of consent.

[52]

LeBel J. considered the consent exception at para. 106, stating:

In some cases, the
evidence
may
establish that the foreign state consented to the exercise of Canadian
enforcement jurisdiction within its territory. The
Charter
can apply to
the activities of Canadian officers in foreign investigations where the host
state consents. In such a case, the investigation would be a matter within the
authority of Parliament and would fall within the scope of s. 32(1).
Consent
clearly is neither demonstrated nor argued on the facts of the instant appeal,
so it is unnecessary to consider when and how it might be established.
Suffice
it to say that cases in which consent to the application of Canadian law in a
foreign investigation is demonstrated may be rare.


[Emphasis added.]

[53]

LeBel J. then went on to analyze, in some
detail, the circumstances of the investigation of Mr. Hape in Turks and
Caicos Islands at paras. 115-117:

[115]     Without evidence of consent, that is enough to
conclude that the
Charter
does not apply. It is not reasonable to
suggest that Turks and Caicos consented to Canadian extraterritorial
enforcement jurisdiction in the instant case. Nonetheless, I will say a few
words on the factual circumstances of the investigation.

[116]    The trial judge made several significant findings of
fact, and the appellant has not attempted to argue that they were based on a
palpable and overriding error. Those findings are that:

-     Detective
Superintendent Lessemun agreed to allow the RCMP to continue its investigation
on the Islands, but was adamant he was going to be in charge, and that the RCMP
would be working under his authority (para. 4);

-     the RCMP
officers were, and understood that they were, operating under the authority of
Detective Superintendent Lessemun (para. 25);

-     the RCMP
officers were subject to Turks & Caicos authority (para. 25);

-     the Canadian
police, in this case, were operating under and subject to the authority of
Detective Superintendent Lessemun (para. 29); and

-     the
propriety and legality of the entries into the private premises in the Turks
& Caicos Islands ... are subject to Turks & Caicos criminal law and
procedures and the superintending scrutiny of the Turks & Caicos courts (para. 29).

As those findings demonstrate, Turks and Caicos clearly and
consistently asserted its territorial jurisdiction in the conduct of the
investigation within its borders. It controlled the investigation at all times,
repeatedly making it known to the RCMP officers that, at each step, the
activities were being carried out pursuant to Turks and Caicos authority alone.
As found by the trial judge, the RCMP officers were well aware that, when
operating in Turks and Caicos, they were working under the authority and
direction of Detective Superintendent Lessemun. Although much of the planning
took place in Canada, and Canada contributed much of the human and
technological resources, Turks and Caicos law and procedure applied to all the
searches: it applied to the perimeter searches in February 1998, to the covert
entries in March 1998, and to the overt entries in February 1999.

Finally, warrants were sought in Turks and Caicos courts, and
that countrys authorities prevented the seized documents from being removed to
Canada.

[117]

The appellant
took issue in this appeal with the trial judges finding that the RCMP and
Turks and Caicos officers were engaged in a co-operative investigation. There
is no magic in the words co-operative investigation, because the issue
relates not to who participated in the investigation but to the fact that it
occurred on foreign soil and that consent was not given for the exercise of
extraterritorial jurisdiction by Canada. When investigations are carried out
within another countrys borders, that countrys law will apply. A co-operative
effort involving police from different countries does not make the law of one
country applicable in the other country:
Terry
, at para. 18.

[54]

In para. 106, LeBel J. leaves the question
of the nature of sovereign, foreign consent to another day and another case.
One guideline provided by
Hape
is that consent to the extraterritorial
application of Canadian law will be rare, which implicitly accords with an
assumption that something more than indications from on-the-ground officials
can suffice for consent. However, LeBel J. does rely on the actions of the
on-the-ground official to find that there was no consent.

[55]

At paras. 115-117, LeBel J. turns to
consider all the circumstances to see if Turks and Caicos consented to the
application of the
Charter
. His analysis here suggests that non-consent
to the exercise of Canadian enforcement jurisdiction and the application of the
Charter
may be determined by looking at all the circumstances of the
interaction between Canadian and foreign officials.

[56]

Justice LeBel justifies the legal conclusion in
Hape
on the principle of sovereignty. He then turns to consider whether there were
any facts on which to conclude that the Turks and Caicos officers did not
consent to the application of the
Charter
. He did not conclude that the
officers had the authority to give consent to the exercise of Canadian
enforcement jurisdiction within its territory, but he did conclude that they
could give evidence of a lack of consent.

[57]

In my opinion,
Hape
stands for the
proposition that in order for the
Charter
to apply, the foreign state
must consent. In order for a state to consent to the extraterritorial
application of Canadian constitutional law, the expression of consent must be from
a valid sovereign authority of that state.

[58]

This position seems to have been assumed in
post-
Hape
authorities, including the trial decision in this case and in
Amnesty
.
Those cases assumed that evidence of consent of a foreign state requires an
expression of sovereign authority, often in the form of a bilateral agreement.
In
Amnesty
, for example, Mactavish J. closely examined the bilateral and
multilateral treaties between Afghanistan and Canada to determine the issue of
consent to the application of Canadian constitutional law. The trial judge in
this case was clearly uncomfortable with the idea of ground level law
enforcement officers consenting on behalf of the entire state; something along
the lines of a diplomatic accord would suffice to demonstrate consent in his
view. The position adopted in these cases is consistent with
Hape
. If I
am correct that
Hape
stands for the proposition that the principle of
sovereignty and non-interference preclude the extraterritorial application of
the
Charter
, then only officials with the authority to bind the state in
question, or an expression of that states sovereign will, can establish
consent.

[59]

Principles of customary international law also support
this view. I start by reiterating the proposition that states are sovereign
from within their territorial boundaries; no other state may exercise
enforcement jurisdiction within those borders (
Hape
at para. 65,
citing
The Case of the S.S. Lotus
(1927), P.C.I.J. Ser. A, No. 10).

[60]

Under international law, however, states may
consent to activities that would otherwise constitute violations of their
sovereignty. The nature of consent between states has been considered by the
International Law Commission (ILC) with respect to the doctrine of state
responsibility, that is, whether and how a state is held responsible for a
breach of an international obligation. The ILCs scholars and jurists have set
out codified, authoritative statements on the law of state responsibility in
the articles on the
Responsibility of States for Internationally Wrongful
Acts,
G.A. Res. 56/83, UN GAOR, 56th Sess., UN Doc. A/RES/56/83 (2001)

[
Articles
of State Responsibility
]. These articles have been adopted by the UN
General Assembly, used by the International Court of Justice and are generally
considered a restatement of customary international law (John H. Currie,
Public
International Law
, 2nd ed. (Toronto: Irwin Law, 2008) at 535-536).

[61]

In international law, one of the major issues with a states
consent is related to the establishment of true and valid consent, as well as
the scope of that consent. Article 20 of the
Articles on State
Responsibility
states: 
Valid consent by a State to the commission
of a given act by another State precludes the wrongfulness of that act in
relation to the former State to the extent that the act remains within the
limits of that consent.

[62]

The ICL has also published commentaries on the
Articles of State
Responsibility
:
see
Commentaries to the Draft Articles on
Responsibility of States for Internationally Wrongful Acts
in Report of
the International Law Commission on the Work of its Fifty-Third Session, UN
GAOR, 56th Sess., Supplement No. 10 (A/56/10) [
Commentaries
]. The commentary
to Article 20 provides a number of issues to consider in relation to consent (
Commentaries
,
at page 73):

(4)        In order to preclude wrongfulness, consent
dispensing with the performance of an obligation in a particular case must be valid.
Whether consent has been validly given is a matter addressed by international
law rules outside the framework of State responsibility.
Issues include
whether the agent or person who gave the consent was authorized to do so on
behalf of the State (and if not, whether the lack of that authority was known
or ought to have been known to the acting State), or whether the consent was
vitiated by coercion or some other factor. Indeed there may be a question
whether the State could validly consent at all.
The reference to a valid
consent in article 20 highlights the need to consider these issues in certain
cases.

(5)        Whether a particular person or entity had the
authority to grant consent in a given case is a separate question from whether
the conduct of that person or entity was attributable to the State for the
purposes of chapter II. For example, the issue has arisen whether consent
expressed by a regional authority could legitimize the sending of foreign
troops into the territory of a State, or whether such consent could only be
given by the central Government, and such questions are not resolved by saying
that the acts of the regional authority are attributable to the State under
article 4. In other cases, the legitimacy of the Government which has given the
consent has been questioned. Sometimes the validity of consent has been
questioned because the consent was expressed in violation of relevant
provisions of the States internal law.
These questions depend on the rules
of international law relating to the expression of the will of the State, as
well as rules of internal law to which, in certain cases, international law
refers.

(6)        Who has authority to consent to a departure from a
particular rule may depend on the rule. It is one thing to consent to a search
of embassy premises, another to the establishment of a military base on the
territory of a State.
Different officials or agencies may have authority in
different contexts, in accordance with the arrangements made by each State and
general principles of actual and ostensible authority.
But in any case,
certain modalities need to be observed for consent to be considered valid.
Consent must be freely given and clearly established. It must be actually
expressed by the State rather than merely presumed on the basis that the State
would have consented if it had been asked. Consent may be vitiated by error,
fraud, corruption or coercion.
In this respect, the principles concerning
the validity of consent to treaties provide relevant guidance
.

[Emphasis added. Footnotes
omitted.]

[63]

From the
Commentaries
, it is clear that law relating to treaties
and treaty-making is relevant. Treaties need not be a formal, high-level
exchange; they may be a simple exchange of diplomatic notes (J.H. Currie at
137). This engages, to some extent, the
Vienna Convention on the Law of
Treaties
, 23 May 1969, 1155 U.N.T.S. 331, which represents international
law on the subject. The
Vienna Convention
provides general rules as to
which state actors may express the binding will of a state: see Articles 7 and
8.

[64]

For our purposes, rather than delve into the principles related to the
law of treaties, it is more useful to set out a general framework that can guide
a court in determining whether consent to the application of Canadian
constitutional law over a Canadian investigation was given. These requirements
are informed by international law on treaties and state responsibility, and
general principles relating to consent:

·

The foreign official or entity purporting to give consent to the
application of Canadian constitutional law must be an agent or state organ of
the foreign state (Articles 4-6 of the
Articles on State
Responsibility
);

·

The foreign official or entity purporting to give consent must
have apparent or actual authority to consent to the application of the Canadian
Charter
to an investigation by Canadian authorities in that foreign
territory. Obviously, officials with full powers to make international
treaties suffice (Articles 7 and 8 of the
Vienna Convention
), but in
most cases, the issue will not be as clear. The Court must determine whether
the official or entity at issue
is able to
agree to the Canadian
investigation and the application of Canadian law. In other words, the question
is whether this official or entity purporting to proffer consent has the
apparent or actual authority to give a binding expression of the sovereign will
of the state.

·

Consent of the foreign state must be informed and freely given; error,
coercion, fraud or corruption vitiate consent (
Commentaries
on
Articles of State Responsibility
);

·

The consent must be in accordance with any domestic laws of the
state purporting to give consent (see
Amnesty
); and

·

The foreign state must specifically consent to the application of
the Canadian
Charter
(see
Amnesty
).

[65]

This is not an exhaustive list, but simply an overview. All of the
circumstances of each case must be analyzed. However, the focus of the analysis
should not only fall on whether there is evidence that foreign officials consented.
While that is a factor to consider, the focus should also be on who those
officials are and the nature of their authority within the foreign state and
under international law. The consent analysis must be done with a view to
determining the will of the sovereign foreign state. In short, the law of
consent to the extraterritorial application of the
Charter
must be
grounded in international law principles relating to sovereignty. In my view, this
approach is consistent with the principles articulated in
Hape
, and
accords with the subsequent jurisprudence in
Amnesty.

[66]

In many cases, consent will be demonstrated through a treaty or binding
international law agreement. Mutual Legal Assistance Treaties (MLAT), like
the
Treaty Between the Government of Canada and the Government of the United
States of America on Mutual Legal Assistance in Criminal Matters
, Can. T.S.
1990 No. 19, are examples. These treaties allow a state to request its
partner state to conduct an investigation within its own borders and then send
that evidence to the requesting state. MLATs generally designate a central
authority to deal with investigation requests. These treaties are usually
explicit that the request and the consequent investigation are governed by the
law of the requested state (R. Currie at 483).

[67]

While a treaty or a binding international agreement that provides
for consent to Canadian investigations and the application of Canadian
constitutional law are obvious examples, the principle of sovereign consent can
be established with evidence that an authorized official or entity in the
foreign state validly consented to the extraterritorial investigation and the
application of the
Charter
to that investigation. (For an example of a
states consent to the application of Canadian law, albeit not the
Charter
,
see the judgment of this Court,
R. v. Dorsay
, 2006 BCCA 117, though the
facts are unique.)

iii.

Did the state of Malaysia consent in this case?

[68]

The appellant argues that the trial judge
misapprehended the law by concluding that a formal agreement between authorized
government officials akin to a diplomatic accord is necessary for a finding
that the foreign state has consented to the application of the
Charter
.
He argues that the trial judges finding that the evidence fell well short of
establishing an agreement to apply Canadian law was incorrect, and that there
was considerable evidence before the court on this point. Mr. Tan
summarizes this evidence as follows:

The request for
permission went through a liaison officer with the Canadian diplomatic mission
in Malaysia. The RCMP communicated their expectations to a senior Interpol
official in Malaysia that the investigation would comply with Canadian legal
guidelines. He granted permission for the RCMPs official visit to take place
and explicitly agreed that the interview would be conducted in accordance with
the Canadian
Charter of Rights and Freedoms

[69]

Mr. Tan points to the testimony of Corporal
Ferreira, who was initially conducting the investigation. He testified that he
contacted the liaison officer, Wade Oldford, in the Canadian mission in Kuala
Lumpur to seek permission for the RCMP to travel and speak to Mr. Tan. Mr. Oldford
contacted Chief Inspector Singh, an official with Interpol in Malaysia. By
letter dated June 15, 2006, Chief Inspector Singh informed Mr. Oldford
that the RCMPs request had been approved by the Director of the Criminal
Investigation Unit of the RCMP. This letter was tendered at trial.

[70]

Corporal Ferriera testified that he expected the
interview to be conducted in accordance with Canadian law, and told Mr. Oldford
that the RCMP were acting within Canadian legal guidelines. He also testified
that Chief Inspector Singh agreed that the interview was to be conducted in
accordance with the
Charter.


[71]

The Crown submits that the trial judges
conclusion was correct. It concedes in its factum that Malaysian authorities
allowed the RCMP to conduct the interview and take the Appellants fingerprints
in a manner that RCMP believed would be admissible in a Canadian court. The
Crown, however, points to evidence that suggests Malaysian authorities did not
consent to the application of Canadian constitutional law. It says the RCMP had
to request permission at the outset for the interview, and had to comply with
Malaysian law at all times. Pointedly, the RCMP had to respect Malaysian law
that required the following: an accused could not be interviewed unless he
consented, the interview could not go past 6:00 p.m. and, regardless of what an
accused said in the interview, he could not be arrested as a result of it.

[72]

With respect, as I have explained above, this
analysis misconstrues the central theme in
Hape
: respect for sovereignty
of the host state. The Crown errs in its assumption that because Malaysian law
was enforced, the
Charter
could not be applied. While an analysis of all
the circumstances (including the authority of the official, the scope of his or
her agreement, the nature and effect of that agreement and so on) can support a
finding that a foreign state has consented, the fact that foreign officials
have asserted that their law applies merely reflects a presumption in
international law. The crux of the analysis is the determination of whether
there is any positive, authoritative and effective consent by the foreign state
to the application of the
Charter
.

[73]

Herein lies the problem with the argument of the
appellant. In my respectful opinion, it would not respect the sovereignty of
Malaysia to conclude on the basis of the testimony of a RCMP officer that
Malaysia consented to the application of the
Charter
. The evidence here
is scant. Aside from the second-hand statements of Chief Inspector Singh, of
whom no evidence with respect to his authority to grant consent was adduced,
there is no evidence of any consent that would satisfy the
Hape
principle of sovereign non-interference. There is, furthermore, no evidence
that Malaysian law enforcement entities or officials  for example, the
Director of the Criminal Investigation Unit  consented. Nor is there evidence
that that official was in a position to consent. In short, there is no evidence
that the officials named by the appellant are in a position to express the
sovereign will of the Malaysian state.

[74]

In my view, the trial judge was correct in his
conclusion that the evidence fell well short of establishing even a
prima
facie
case that there was any agreement to apply Canadian law. To engage
the application of the
Charter
to the conduct of Canadian officials
operating in a foreign state, an accused must tender evidence that a foreign
official, possessed of the proper authority, consented to the application of
the
Charter
.

[75]

In my view, the trial judge did not err in
concluding that the
Charter
was inapplicable to the RCMPs conduct in
Malaysia. As such, he was correct to decline to hold a
voir dire
into
whether the RCMP breached Mr. Tans
Charter
rights by failing to
obtain a warrant before requesting Malaysian assistance to collect his fingerprints.

[76]

If I am wrong, and law enforcement officials
with no authority may consent to the application of the
Charter
, I would
still conclude the
Charter
does not apply to the extraterritorial
activities of the RCMP in this case, given the findings of fact by the trial
judge.

[77]

There is insufficient evidence that Malaysian
officials consented to the application of the
Charter
. At its highest,
there is the alleged consent of a Malaysian Interpol-RMP liaison officer. All
of the other circumstances appear to suggest that Malaysian authorities did not
consent. The trial judges findings of fact are at para. 34 (
Voir Dires
Nos. 1, 2 and 4):

Despite that
very capable cross-examination [of trial counsel for Mr. Tan], in my view
it established no more than the officers intended that their actions, and those
of anyone else during the process, in relation to Tan would pass
Charter
scrutiny. The officers were acting under the authority of the RMP and the
applicable law was Malaysian law, i.e., the RMP made it clear that Tan could
only be questioned if he consented to such questioning, could only be
questioned where he wanted to be questioned, and regardless of the outcome of
the questioning, Tan was not subject to arrest.

[78]

In short, the evidence indicates that Malaysian
authorities viewed their law relating to searches and seizures as operative, and
not the
Charter
. The evidence Mr. Tan points to as indicating
consent reflects the views of Canadian law enforcement officials and diplomatic
authorities  not Malaysian ones. Nowhere in
Hape
is it expressed that
Canadian law enforcement officials can impose the
Charter
on their
investigation by stating their belief as to its application. If this were the
case, this would undermine the very principle that
Hape
stands on.

[79]

At its highest, this investigation was an
example of lower, enforcement-level police cooperation. In
Hape
, Lebel
J. found that
[a] cooperative effort involving police from different
countries does not make the law of one country applicable in the other country
(at para. 117, quoting
Terry
at para. 18).

[80]

Finally, I note that Mr. Tan did not argue
the
Charter
applied on the basis of any other exception from
Hape
(e.g., the international human rights exception), nor did he argue that his
trial would be rendered unfair if the evidence obtained outside of Canada were
admitted. Accordingly, I decline to address any possible application of the
Charter
on these grounds. Even if Mr. Tan did raise the issue of the fairness of
the trial in Canada, the possible effect of the evidence gathered in Malaysia
falls well short, in my view, of being anathema to the conscience of Canadians.

[81]

I would not give effect to this ground of
appeal.

B.

Did the trial judge err in concluding that the evidence of the undercover
officer was admissible?

1.

Positions of the Parties

[82]

Mr. Tan argues that the trial judge erred in admitting the English translation
of the Cantonese conversation between himself and the undercover officer. Before
the trial judge, the defence objected to this evidence because of concerns with
the undercover officers lack of qualifications as a translator and the
translations reliability. Mr. Tan says the officer corrected crucial
aspects of the transcript; he had no formal training (in translation or
Cantonese) and had some difficulty understanding Mr. Tan. Furthermore, he
says, there were inconsistencies between two overlapping translations of the
same conversation, which were brought out in cross-examination of the officer.

[83]

Despite these challenges to the translation, the trial judge admitted
the evidence. Mr. Tan says this was an error. He argues before this Court
that the transcript of the undercover officers interaction with Mr. Tan
is classified as expert evidence. The undercover officer was not a properly
qualified expert in speaking Cantonese and its admission into evidence was
contingent on his ability to authenticate it. The trial judge erred by failing
to consider whether the transcript was admissible expert evidence. In addition,
Mr. Tan submits that there were significant concerns as to the reliability
of the transcript, especially given its importance to the issues at trial and
the frailties shown on cross-examination. Mr. Tan relies on
R. v.
Sanghera
, 2012 BCSC 995 as an example. In this case a police officer, who
was fluent in both English and Punjabi, had formal schooling in the latter, and
had provided interpretation services before, was refused as an expert on the
basis that there was insufficient evidence to establish that he had the
necessary qualifications as a translator and interpreter.

[84]

The Crown submits that Mr. Tans argument on the reliability of the
translation goes to the weight given to Mr. Tans statements, not to
admissibility. It says Mr. Tans argument on reliability is somewhat
misplaced given that the majority of the translation for the trial was not done
by the undercover officer, but by civilian translators. In the end, two
Cantonese speaking individuals, including the officer, confirmed the
transcript.

[85]

The Crown says admissibility of the English translation is not an issue
of expert evidence; it is an issue of the admissibility of a hearsay statement
of an accused at trial, which is subject to the admission exception to the
hearsay rule. This rule is premised on the adversarial system and admissibility
is determined on the basis of the statements authenticity, not reliability:
R.
v. Evans
, [1993] 3 S.C.R. 653. Once admissible, the weight of the statement
and quality of the translation were an issue for the trial judge, whose finding
that the probative value of the transcript outweighed any prejudicial effect
should be afforded deference from this Court. In any event, the trial judge was
justified in placing some weight on the translated statements as there were ample
indicators of trustworthiness surrounding the statement. For example, the
allegation that the undercover officer corrected crucial aspects of the
transcript amounted to the officer making very minor changes on very few
pages.

[86]

The Crown also likens Mr. Tans argument on the English translation
to partial statement cases. In those cases, only a part of a statement is
recorded or tendered as evidence. The issue for the trier of fact becomes one
of weight, not authenticity. The trial judge was aware of the language issue,
but was not concerned with the statements accuracy.

[87]

Finally, the Crown submits that even if the trial judge erred in
admitting the English translation, the curative proviso applies.

2.

Analysis

[88]

I agree with the Crown that this is not an issue of admissibility of
expert evidence under
R v. Mohan
, [1994] 2 S.C.R. 9. With respect, I do
not find
Sanghera
applicable or instructive. That case was addressing an
application to have a police officer accepted as an expert witness to translate
portions of intercepted communications. The undercover officer in this case was
a participant in a conversation; he was a contemporaneous listener and could
relate that content to the trial judge. He was also cross-examined on that
evidence.

[89]

The trial judge was correct to view the shortcomings of the
translation as only going to weight. In my view, the trial judge properly
admitted the statements. The quality and accuracy of the undercover officers
evidence went to the weight to be given to the statements at trial. On both
these determinations, I see no error in the trial judges analysis requiring
the intervention of this Court.

[90]

I would not accede to this ground of appeal.

C.

Did the trial judge err in concluding that the confession was voluntary?

1.

Positions of the Parties

[91]

Mr. Tan argues that the trial judge erred in his conclusion that
the confession to Sergeant Dhillon was voluntary. He says that this Court may
overturn a finding of voluntariness where the trial judge failed to properly
consider all the relevant circumstances.

[92]

Mr. Tan first points to an incomplete evidentiary record with
respect to his dealings with police and the circumstances surrounding his
confession.

[93]

Mr. Tan then argues the trial judge erred by failing to adequately
consider relevant evidence in his ruling, including:

a.         Sgt.
Dhillons inability to remember the Appellants request for counsel at Toronto
Pearson Airport despite being played an audio recording;

b.         Sgt.
Dhillon was a member of the forensic interview team, was chosen because he
spoke the Appellants language, and agreed that he started to build rapport
with the Appellant during the transport;

c.         The
Appellant was in handcuffs for the duration of the transport;

d.         Sgt.
Dillons [sic] was unable to recall the context or details of the
conversation between himself and the Appellant during the flight from Toronto
to Vancouver.

e.         Sgt.
Dhillons repeated references (in the statement) of speaking to the Appellant
in Antwerp despite his and Officer Wellingtons recollection that the first
interaction took place at Brussels International Airport  and

f.          The Appellants
statement to [the undercover officer] during the cell plant operation to the
effect that the police had told him he wasnt going home for a long, long
time, on the flight and that as a result he was expecting what was going to
happen.

[94]

Mr. Tan submits that the trial judge erred in placing too little
importance on discrepancies between the recollections of Sergeant Dhillon and
Corporal Wellington during the journey from Belgium. He says that while the
trial judge did reference Sergeant Dhillons statement to Mr. Tan that he
was not going home [for a] long, long time, the judge did not consider
whether this was a threat, or whether Sergeant Dhillons inability to recall
the statement without hearing a recording of it went to his credibility in
asserting that nothing regarding the investigation was discussed. Sergeant
Dhillon was also unable to recall whether Mr. Tan asked to speak to a
lawyer in Toronto. In the circumstances, Mr. Tan argues there is no way of
knowing whether threats or inducements were made.

[95]

Mr. Tan also takes issue with an alleged misstatement of evidence
made by Sergeant Dhillon during his interview. Mr. Tan says Sergeant
Dhillon deceived him with respect to evidence relating to a thumb print found
on the open/closed sign of the store and a thumb print found in the victims
blood on the display counter. The judge referred to and dismissed the first
misstatement, but did not refer to Sergeant Dhillons alleged deception
regarding the display counter. Mr. Tan argues that in all the
circumstances, Sergeant Dhillons presentation of this false evidence amounts
to a deception and the trial judge misapprehended this evidence.

[96]

Finally, Mr. Tan argues that the alleged deception, combined with a
lengthy interview, Sergeant Dhillons repeated references to the strength of
the case and creation of a false sense of urgency, fostered an atmosphere of
oppression. Furthermore, Mr. Tan says that the judge only considered
Sergeant Dhillons misstatements under the heading of police trickery, and
failed to consider whether they contributed to an atmosphere of oppression.

[97]

Considering all these circumstances, Mr. Tan says the trial judges
conclusion that voluntariness was established beyond a reasonable doubt is
undermined.

[98]

The Crown states that the trial judges ruling on the
voir dire
is a factual determination and entitled to deference on appeal; this Court may
not intervene unless it finds a palpable and overriding error. It says that the
issues going to the evidentiary record and the discrepancies with the officers
recollection are issues going to the assessment of the evidence, the province
of the trial judge. While there were misstatements by police, the trial judge
was entitled on all of the evidence to conclude that they did not amount to
trickery or oppression and did not impact voluntariness. Finally, the Crown
argues that the trial judge correctly found that there was no atmosphere of
oppression: Mr. Tan was treated well and in a position of relative
comfort; Mr. Tans demeanour was relaxed. He laughed and, at times,
contradicted Sergeant Dhillon. The Crown submits that these findings are
supported by the evidence. The circumstances do not support the conclusion that
this was an atmosphere of oppression compared to other cases.

2.

Analysis

a)

Confessions Rule

[99]

In my view, the trial judge accurately set out the law on the
confessions rule at paras. 13-14 of his ruling on
Voir Dire
No. 3:

[13]      The common law confessions rule is that where an
accused makes a statement to a person in authority, the Crown bears the onus of
proving the voluntariness of the statement beyond a reasonable doubt as a
prerequisite to its admission into evidence:
R. v. Spencer,
2007 SCC 11.
The rule addresses concerns about the reliability of confessions and the
dangers of false confessions. The rule aims to protect an accuseds rights
without unduly limiting societys need to investigate and solve crime:
R. v.
Oickle
, 2000 SCC 38 at para. 33. The classic formulation in
Ibrahim
v. The King
, [1914] A.C. 599 (P.C.) also continues to have application:

...no statement by an accused is
admissible in evidence against him unless it is shewn by the prosecution to
have been a voluntary statement, in the sense that it has not been obtained
from him either by fear of prejudice or hope of advantage exercised or held out
by a person in authority.

[14]
Oickle
is now
the leading case on the test for determining voluntariness of statements made
to persons in authority. In
Oickle
, Iacobucci J., for the majority, held
that application of the rule requires a contextual approach that considers all
relevant factors. Four factors to be considered are whether the statement was
made (1) without threats or promises by a person in authority, (2) in an
atmosphere free of oppression, (3) by an accused with an operating mind, and
(4) without impermissible police trickery that would shock the community:
Oickle
at paras. 47-67;
Singh
at para. 35. The use of police trickery
is a distinct inquiry.

[100]

There is no suggestion from Mr. Tan that the trial judge erred in
law with respect to voluntariness or the factors to be taken into account from
R. v. Oickle
, 2000 SCC 38, [2000] 2
S.C.R. 3
. In
R. v. Spencer
,

2007 SCC 11,
[2007] 1 S.C.R. 500, Madam Justice Deschamps set out the standard of review in
such a circumstance:

[16]      In
Oickle
, Iacobucci J. stated
the following about the standard of appellate review of a trial judges
decision on whether a statement is voluntary (at paras. 71 and 22):

If a trial court
properly considers all the relevant circumstances, then a finding regarding
voluntariness is essentially a factual one, and should only be overturned for some
palpable and overriding error which affected [the trial judges] assessment of
the facts. . . .

. . .

. . . a disagreement
with the trial judge regarding the weight to be given various pieces of
evidence is not grounds to reverse a finding on voluntariness. [Emphasis
deleted.]

[17]      Where a
trial judge considers all the relevant circumstances and properly applies the
law, deference is owed to the judges determination on the voluntariness of the
statement at issue.  Thus, [trial judges] are in the best position to draw
conclusions from the evidence both because of this expertise and because of
their privileged position in assessing the evidence as a whole.

[101]

In my respectful opinion, the trial judge reviewed
all of the relevant circumstances of the confession to determine its
voluntariness. It appears that what Mr. Tan really takes issue with is the
trial judges weighing and assessment of the evidence, claiming that he
misapprehended the evidence by not referring to certain aspects of the record
or that the judge misstated evidence around Sergeant Dhillons alleged
deception. This allegation takes issue with the judges failure to highlight
minor pieces of evidence of the overall interaction. This Court is not entitled
to re-weigh evidence in the manner suggested by Mr. Tan:
R. v. Benham
,
2013 BCCA 276 at para. 30. Nonetheless, with this in mind, I will consider
Mr. Tans allegations.

i.

Incomplete Record

[102]

The trial judge addressed the completeness of the record of the trip to
Canada at paras. 28-36 (
Voir Dire
No. 3). He agreed with
counsel that the entire context had to be considered and that the Crown must
establish an adequate record. In this case, the judge found that despite the
lack of a recording, there was evidence from the police officers and continued:

[29]      Defence counsel points to contradictions between
the officers notes and recordings taken at Pearson International Airport to
establish that the record is insufficient or incomplete. With one exception,
discussed below, I place little importance on these discrepancies. The officers
thought they were being recorded during the flights. They therefore did not
take notes and now, almost three years later, have an incomplete memory of what
was said.

[30]      A further and perhaps more significant distinction
between the facts of
Barreda
[[1999] B.C.J. No. 2259 (S.C.)] and
the present case is the time lapse between the gap in the record and the
Statement on which the Crown seeks to rely.

[31]      In
Barreda
, an unreported conversation
occurred, the police discovered a grow-op and the accused is alleged to have
made the incriminating statement that she was the occupant of the house all
within approximately 20 minutes. Here, I am told the recording equipment failed
on the flight between Belgium and Canada. There was a stopover in Toronto and
recordings were made at the airport there. These were commercial flights.

[32]      This leaves a long travel period during which there
is only a sporadic record of what transpired between the officers and Tan. Tan
was transferred to police cells in Richmond at 10:00 p.m. He slept and ate. Tan
confirms on videotape that he was not bothered during the night. Dhillon began
interrogating him some 17 hours after their arrival in Richmond. The
interrogation lasted eight hours. Several topics are canvassed before Dhillon
refers to the murder. Only after six hours of questioning does Tan make
comments which could be characterized as a confession. During the eight hours
no allusion is made to any promise or threat made by Dhillon, Wellington or
anyone else.

[33]      The cell plant
evidence, which I have found to be admissible and which forms part of the
relevant context, also does not reveal that anything occurred either in Belgium
or during the trip to Canada which led Tan to later confess. In fact, the cell
plant evidence indicates quite the opposite. Tan tells the undercover officer
that Tan made the Statement because he was presented with evidence by Dhillon
during the recorded interrogation that is the subject matter of this
voluntariness inquiry. There is no evidence that anything untoward occurred in
Belgium.

[103]

The judge
stated at para. 36 that where there is a gap in the record, an explanation
is owed and, in this case, one was provided. He concluded there was nothing in
the evidence that raised a reasonable doubt as to the voluntariness of Mr. Tans
statements.

[104]

A
statement may be excluded on the basis of lack of completeness if the judge is
not able to determine voluntariness. (
R. v. Richards
(1997), 6 C.R. 5th
154 at para. 33 (B.C.C.A.)). The fact that an investigating officer is
unable to recite the exact words spoken does not, however, necessarily render a
statement inadmissible. The possibility of incompleteness is generally a matter
of weight for the trier of fact. There is no suggestion that the officers
intentionally edited the statements in a way unfavourable to Mr. Tan. Mr. Tan
did not testify to having said something that was omitted (
Richards
at para. 31;
R. v. Kennealy
(1972), 6 C.C.C. (2d) 390 (B.C.C.A.);
R. v. Lessard
(1982), 10 C.C.C. (3d) 61 (Que. C.A.);
R. v. Lapointe
(1983), 9 C.C.C.
(3d) 366 at 377−82 (Ont. C.A.), affirmed [1987] 1 S.C.R. 1253;
R. v.
Howard
(1983), 3 C.C.C. (3d) 399 at 412 (Ont. C.A.);
R. v. Ferris
(1994), 27 C.R. (4th) 141 at 153 (Alta. C.A.), affirmed [1994] 3 S.C.R. 756).

[105]

Traditional
methods of assessing credibility and reliability may be used to assess
voluntariness:
R. v. Crockett
, 2002 BCCA 658 at para. 20. This is
what the trial judge did here. In this case, the impugned gap in evidence was
not the actual confession, which was recorded. Only peripheral, contextual
matters were missed, but with reasonable explanation. The trial judge could,
and did, assess the voluntariness of the statement despite the gap in the
evidence. In my view, there is nothing meriting the intervention of this Court
on the trial judges assessment of the sufficiency of the overall record.

ii.

Misapprehended / Ignored Evidence

[106]

Mr. Tans
argument that the trial judge ignored or misapprehended important pieces of
evidence also relates to his submissions on the incomplete record. In my view,
this argument, at its core, amounts to asking this Court to re-weigh the
evidence before the trial judge. The trial judges reasons on the
voir dire
reveal that he was clearly alive to the frailties of the officers memories and
took that into account on his final assessment of the circumstances of the
confession. But the judge naturally focused his attention on the circumstances
of the interview with Sergeant Dhillon, and he was still mindful of all the
relevant events leading up to the interview. The fact that not every piece of
evidence was recorded does not impugn the overall conclusion. It is not for
this Court to point to individual pieces of evidence that are not explicitly
referenced to impugn the trial judges reasons on the
voir dire
.

[107]

In my
view, the trial judges conclusion that there was no evidence of threats or
inducements (no
quid pro quo
) is supported on the evidence.

iii.

Presentation of False Evidence

[108]

The trial
judge addressed Mr. Tans allegation of police deception or trickery
arising from Sergeant Dhillons misstatements at paras. 63-71, and found
that Sergeant Dhillon did misstate the evidence to Mr. Tan (probably
inadvertently). The judge found that the misstatements did not give rise to
the confession, distinguishing
R. v. Hammerstrom
, 2006 BCSC 1700. Mr. Tan
says the trial judge misapprehended this evidence, and says there is ample
evidence, some of which was even referred to by the trial judge, that the misrepresentations
had the effect of compelling him to confess.

[109]

I do not agree that this amounts to police trickery or oppression on the
level that would call into question the voluntariness of Mr. Tans confession.
The trial judge concluded that the Sergeants misstatement was inadvertent and
insignificant. In the context of the entirety of the evidence, and in my view,
it cannot be said he erred. This was not a case where police exaggerated or
fabricated the balance of their case against the accused. There was ample
evidence on which police could have put their case to Mr. Tan, and they
did so; the trial judge was aware of this too (at para. 68). In other
words, in my respectful opinion, this was not a case where police were tricking
the accused into confession.
Oickle
, in any event, is clear that even if
the evidence is not put to the accused accurately, it is not necessarily
grounds for excluding a statement (at para. 61). Police conduct in this
case certainly does not rise to the level of conduct that would be so appalling
as to shock the community:
Oickle
at para. 67. As stated by Lamer
J. (as he then was) in
Rothman v. The Queen
, [1981] 1 S.C.R. 640 at 697:

It must also be borne in mind
that the investigation of crime and the detection of criminals is not a game to
be governed by the Marquess of Queensbury rules. The authorities, in dealing
with shrewd and often sophisticated criminals, must sometimes of necessity
resort to tricks or other forms of deceit and should not through the rule be
hampered in their work. What should be repressed vigorously is conduct on their
part that shocks the community.

In my view, the trial judges assessment of the
circumstances of the confession discloses no reviewable error.

iv.

Atmosphere of Oppression

[110]

Again, in a related argument, Mr. Tan points out that evidence
relating to Sergeant Dhillons misstatement, while considered under police
trickery, was not considered in the context of what he says was an oppressive
interview. The trial judge carefully considered the transcript and the
circumstances of the interview. He compared this case to
R. v. Ciliberto
,
2005 BCSC 1859, where police interviewed an accused with a mental illness. They
used intense, loud interview tactics. They left the accused alone with the
victims relatives for an hour. They used false evidence. The judge then
summarized his impressions of this case at para. 54:

[54]      In this case there is
no evidence that Tan has any special vulnerability similar to mental illness.
Tan did not know the victims family and knew the victim only slightly, through
his pawn shop dealings. There is no physical presence, as the recording was
shown on a computer screen. There is no evidence of any shouting or aggressive
behaviour by Dhillon. Dhillon appears polite. The accused appears relaxed. Tan
laughs, burps, and at various times sprawls on the couch or sits on the floor
while eating. At times Dhillon presses for an answer but his demeanor and
manner are not aggressive. I therefore find that, on these facts, showing a
recorded plea of the victims daughter to Tan did not constitute oppressive
conduct or create an atmosphere of oppression.

[111]

In the
next paragraph, he considered the implication of police trickery:

[55]      With respect to police
trickery as a factor in determining whether there has been oppression, I
discuss that matter below. As noted, I accept that Dhillon made some
misstatements of evidence. In my opinion, however, taking all of those matters
into consideration, there was no oppressive conduct or atmosphere surrounding
the making of the Statement.

[112]

In my
respectful opinion, the trial judge was clearly alive to how police trickery
could potentially contribute to an atmosphere of oppression. Mr. Tan was
treated appropriately while in police custody (he was fed, he slept, had
washroom breaks and he had a cigarette). There was no excessive aggression and
the interrogation was not inordinately long. The judge considered the
circumstances of the interview, Mr. Tans demeanour and his responses to
Sergeant Dhillons evidentiary, moral and emotional propositions, and found
that the atmosphere was not oppressive. This conclusion was open to him and I
would not interfere with it.

b)

Conclusion on Voluntariness

[113]

In my
respectful opinion, I can see no error in the analysis of the trial judge
requiring this Courts intervention. He considered all relevant elements of the
voluntariness analysis and all the relevant circumstances to determine whether Mr. Tans
confession was voluntary. His factual conclusions and the inferences he drew
from them are supported on the evidence. While there were certainly gaps in the
record and the trial judge did not refer to every piece of evidence, in my
view, none of this affects the ultimate conclusion that Mr. Tans confession
was voluntary. The trial judge did not err by admitting that evidence.

[114]

I would
not accede to this ground of appeal.

VI.

Conclusion

[115]

I would dismiss the appeal.

The Honourable Madam Justice Bennett

I agree:

The
Honourable Mr. Justice Hall

I agree:

The Honourable Madam Justice MacKenzie


