



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Liew, 2015 ONCA 734

DATE: 20151102

DOCKET: C55450

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Soon Fat Liew and
Wen Tung
    Yu

Respondent

Kevin Wilson, for the appellant

Alan D. Gold and Melanie J. Webb, for the respondent Wen
    Tung Yu

Heard: April 7, 2015

On appeal from the acquittals entered by Justice R. Cary
    Boswell of the Superior Court of Justice, sitting without a jury, on April 19,
    2012.

Tulloch J.A.:

A.

Overview

[1]

The respondent, Wen Tung Yu, was acquitted of importing cocaine and
    possession of cocaine for the purpose of trafficking following a blended
voir
    dire
and trial. His co-accused, Soon Fat Liew, was acquitted of possession
    of cocaine for the purpose of trafficking. The Crown abandoned the appeal
    against Liew, but maintained the appeal against the respondent.

[2]

The respondent and Liew brought pre-trial motions that attacked the
    admissibility of much of the Crowns evidence. The Crown had sought to lead
    evidence discovered during a search of the respondents home. The respondent argued
    that the warrant should not have been issued for two reasons. First, the
    affidavit sworn to obtain it contained evidence of calls between Liew and the
    respondent gathered during an unconstitutional search of Liews cell phone upon
    his arrest. Second, the affiant failed to make full and frank disclosure about
    Wendy Yus connection to the residence. Wendy Yu is the respondents aunt. The
    Crown had also sought to use statements made by the respondent and Liew to the
    RCMP to challenge the credibility of both accused should they testify at trial.
    The respondent and Liew alleged that the RCMP breached their right to counsel
    under s. 10(b) of the
Canadian Charter of Rights and Freedoms
.

[3]

The trial judge found that the investigating RCMP officers committed
    numerous breaches of the respondent and Liews ss. 8 and 10(b)
Charter
rights in his ruling on the pre-trial motions, dated March 27, 2012, with
    reasons reported at 2012 ONSC 1826. He then excluded the videotaped statements,
    the evidence derived from the warrantless search of Liews cell phone, and the
    evidence flowing from the search of the respondents residence in a brief endorsement
    on April 17, 2012, with written reasons following on May 25, 2012 and reported
    at 2012 ONSC 2990, 289 C.C.C. (3d) 228. Without this evidence, the Crown
    invited acquittals on all charges.

[4]

The Crown
    now appeals from the respondents acquittal, and makes the following related
    arguments:

1.       In light of the Supreme Courts decision in
R. v.
    Fearon
, 2014 SCC 77, [2014] 3 S.C.R. 631, the trial judge erred in holding
    the search of Liews cell phone incident to arrest was unconstitutional;

2.       As the evidence from the search of Liews cell phone
    was constitutionally obtained, the trial judge erred in excising it from the
    information to obtain (ITO) the warrant to search the respondents home;

3.       Once the evidence from the cell phone search is
    included in the ITO, it supports the issuance of the warrant to search the
    respondents home;

4.       The evidence obtained from the search of the
    respondents home should be admitted; and

5.       The trial judge erred in some of his findings of s.
    10(b) violations and in excluding the respondent and Liews statements.

[5]

As a preliminary matter, I will briefly address the search of Liews
    cell phone incident to his arrest. The trial judge determined that the
    arresting officer, Cst. Gallop, was entitled to seize Liews cell phone
    incident to arrest because he had an objectively reasonable basis for believing
    it would afford evidence of the offence, such as evidence of other suspects.
    However, he was not entitled to search the cell phone incident to arrest absent
    exigent circumstances or a warrant. He had neither. The trial judge held that
    even if a cursory search were permissible, the search performed by Cst. Gallop
    exceeded that limit.

[6]

The trial judges decision on the cell phone evidence was made before
    the Supreme Court provided guidance on this issue in
Fearon
. In
Fearon
,
    at paras. 69-71, the majority of the Supreme Court rejected the approach taken
    by Boswell J. in the present case and concluded that a search of a cell phone
    may be conducted incident to arrest even if there are no exigent circumstances,
    provided certain criteria are met.

[7]

The trial judge erred in his approach to the cell phone evidence. However,
    for purposes of this appeal it is not necessary to determine whether the search
    complied with s. 8 under the principles set out by Justice Cromwell, writing
    for the majority, at para. 83 of
Fearon.
This is because I have
    concluded that even if this evidence were included in the ITO, the ITO could
    not support issuance of a warrant to search the respondents residence. The search
    of the respondents residence was therefore warrantless, and the evidence
    obtained from that search must be excluded.

[8]

This conclusion is dispositive of the appeal, as the Crown fairly
    conceded in oral argument that without the evidence obtained from the search of
    the house, the Crown has no case against the respondent. It is therefore not
    necessary to address whether the trial judge erred in his treatment of the
    statements.

B.

Facts

[9]

In January 2010, Canada Border Service Agency officers found over 30 kilograms
    of cocaine hidden in a shipment of wood. The wood was supposed to be delivered
    to the Sunny Trading Company in Markham, Ontario. RCMP officers removed the
    cocaine from the wood and replaced it with a benign substance. They tracked the
    shipment to its destination, a commercial complex on Yorktech Drive with a
    number of different units. The shipment was to be delivered to Unit 4, though the
    complex does not have a Unit 4.

[10]

On
    February 4, 2010, RCMP officers waited at the Yorktech complex and watched as
    the shipment arrived shortly after 1:15 p.m. Two men, Liew and Jim La, exited a
    vehicle parked nearby. As La and Liew unloaded the wood from the truck, RCMP
    officers intervened and arrested them. Upon Liews arrest, Cst. Gallop searched
    his cell phone. The call history revealed that at 1:25 p.m., someone named
    Dono had called Liews cell phone from the number 416-738-8172. Liews cell phone
    also showed an outgoing call to Dono at 2:02 p.m. The respondent is also
    known as Donald Yu and is connected to the above phone number.

[11]

The
    RCMP continued their investigation into the persons suspected of being involved
    in the shipment. A search warrant for 18 Eden Avenue was sought and obtained on
    the basis of an ITO sworn by Cst. Cobey on February 26, 2010. The ITO was
    justified on the grounds that Wendy Yu and the respondent lived at that
    address.

[12]

The
    ITO set out compelling evidence that connected Wendy Yu to the cocaine
    shipment. She was named as the contact person for the shipment and her social
    insurance number was given to the shipping company. She was also the named
    contact on a wood shipment intercepted by the United States Border Patrol in
    2009 that contained 142 kilograms of cocaine.

[13]

In
    order to link Wendy Yu to 18 Eden Avenue, the affiant explained that Wendy Yus
    passport application referred to a drivers licence to support her identity.
    That drivers licence was registered to her alias and provided 18 Eden Avenue
    as her address. Further, an RCMP officer had positively identified Wendy Yu
    leaving 18 Eden Avenue on February 24, 2010. At approximately 12:09 p.m., an
    officer saw an unknown female depart from the residence driving a silver
    Mercedes. A second officer, Cst. Verma, later identified this woman as Wendy
    Yu.

[14]

The
    affidavit sworn in support of the ITO did not mention the serious difficulties
    in connecting Wendy Yu to 18 Eden Avenue. The passport application was made in
    2006 and also contained a different address for her in Ottawa, not Markham. Her
    SIN number was affiliated with yet another address in Toronto. The phone number
    associated with her information on the shipping documents was registered to a
    fourth address. In February 2010, officers searched all the usual sources to
    find Wendy Yus current address but were unable to find it. None of this was
    mentioned in the ITO.

[15]

The
    frailties in the late February identification were also omitted. Cst. Verma
    tailed the Mercedes, pulled up beside it, and identified the driver as Wendy
    Yu. He had seen one photograph of Wendy Yu before this identification. The officer
    took no notes on the details of the identification or the physical description
    of the driver. The circumstances of the identification were not set out in the
    ITO.

[16]

The
    respondents connection with 18 Eden Avenue was clear: he owned and resided at that
    property. However, the evidence connecting him to the shipment was limited. Surveillance
    established that the respondents minivan was parked at the Yorktech complex on
    the day of the delivery, beginning at 11:40 a.m. The affiant acknowledged in
    the ITO that the respondent operates a legitimate business out of two units in
    the complex. The respondent was also identified as Dono and had exchanged
    phone calls with Liew after Liew and La began to unload the shipment on
    February 4, 2010. To further establish the respondents involvement in the
    offence, the ITO claimed that the respondent lived at the same address as Wendy
    Yu, whose SIN number was associated with both cocaine shipments.

[17]

On
    the basis of the above information, the police claimed to have established
    reasonable grounds to believe that an offence had been committed and that
    evidence of that offence would be found at 18 Eden Avenue. A warrant was
    issued. The RCMP executed the warrant on March 1, 2010, and arrested the
    respondent at the scene.

C.

Decisions Below

[18]

The
    trial judge concluded that evidence of the calls between Liew and the
    respondent was obtained in violation of Liews s. 8 rights. That evidence was
    excluded under s. 24(2) and excised from the ITO to search 18 Eden Avenue.

[19]

He
    held that the evidence in the ITO, as revised on review, was insufficient to
    establish reasonable grounds to believe that evidence of an offence would be
    found at 18 Eden Avenue.

[20]

The
    trial judge reviewed the content of the ITO in light of the evidence presented
    during the
voir dire
, including the cross-examination of the affiant, Cst.
    Cobey. Certain aspects of the ITO were challenged as being erroneous,
    misleading, or insufficient in terms of the obligation on the police to make
    full and frank disclosure. In addition to the challenge to the cell phone
    evidence, the respondent attacked the evidence about Wendy Yus address. First,
    he argued that the police had evidence connecting his aunt to several different
    addresses, but only referred to the 18 Eden Avenue address in the ITO. Second,
    the affiant stated that Cst. Verma had identified a female driver that left the
    residence as Wendy Yu. However, this driver was likely the respondents wife
    and the issuing justice would have been unable to assess the frailties of the identification
    because the circumstances in which it was made were not explained in the ITO.

[21]

The
    trial judge found that Cst. Cobey failed to make full and frank disclosure in
    the ITO of the following material facts: i) An RCMP officer searched all the
    usual sources the police would normally check for a persons address and could
    not locate an address for Wendy Yu; ii) Her passport application in February
    2006 indicated an address in Ottawa; iii) A search of her SIN disclosed a
    different address in Toronto; iv) Constable Verma had never met Wendy Yu before
    he identified her and his identification was based on a comparison of a woman
    he saw driving an SUV to one photograph; and v) Constable Verma only glimpsed a
    female driver in traffic and could not otherwise describe any of the
    surrounding conditions at the time he made his identification. He took no notes
    of those circumstances.

[22]

Therefore,
    while there was reliable evidence that Wendy Yu was involved in the offence,
    there was insufficient reliable evidence on which to conclude she resided at 18
    Eden Avenue when the warrant was sought. The police failed to make full and
    frank disclosure about Wendy Yus connection to 18 Eden Avenue. They failed to
    disclose the difficulty they had in determining Wendy Yus address and the
    frailties in the officers identification. The trial judge determined that, in
    all likelihood, the woman identified by the officer as Wendy Yu was not Wendy
    Yu.

[23]

On
    the other hand, while there was reliable evidence that the respondent lived at
    18 Eden Avenue, absent the evidence of the calls with Liew, there was
    insufficient evidence connecting him to the offence. After holding that the
    warrant could not stand and the search of the respondents home was therefore
    warrantless, the trial judge excluded the evidence obtained from the search of
    the respondents home.

D.

Analysis

[24]

In
    my view, while the trial judge erred in his approach to whether the search of
    the cell phone incident to arrest violated s. 8, this error did not have a
    material bearing on the acquittal. Whether or not the evidence of the phone
    calls between the respondent and Liew was included, the ITO, as altered on
    review with respect to other issues, could not have supported the warrant to
    search the respondents home.

(1)

The Burden on the Crown on an Appeal from an Acquittal

[25]

Section
    676(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, provides that the
    Attorney General may appeal against a judgment or verdict of acquittal on any
    ground of appeal that involves a question of law alone.

[26]

To obtain a new trial, the
    Crown must satisfy the court that the verdict would not necessarily have been
    the same had the error not been made:
Vézeau v. The Queen
, [1977] 2
    S.C.R. 277, at p. 292. The Supreme Court elaborated at para. 14 in
R. v.
    Graveline
, 2006 SCC 16, [2006] 1 S.C.R. 609:

[A]n appeal by the Crown cannot succeed on an abstract or
    purely hypothetical possibility that the accused would have been convicted but
    for the error of law. Something more must be shown. It is the duty of the Crown
     to satisfy the appellate court that the error (or errors) of the trial judge
    might reasonably be thought, in the concrete reality of the case at hand, to
    have had a material bearing on the acquittal.

The burden on the Crown is a heavy one, as acquittals
    are not lightly overturned:
R. v. Sutton
, 2000 SCC 50, [2000] 2 S.C.R.
    595, at para. 2.

(2)

The Validity of the Warrant to Search the Respondents Residence

[27]

The
    conclusion that the trial judge erred in his approach to the cell phone
    evidence in light of
Fearon
is not dispositive of this appeal. The
    Crown must persuade the court that the verdict would not necessarily have been
    the same absent the error.

[28]

Whether
    the Crown can meet its burden turns on whether the evidence gathered during the
    search of 18 Eden Avenue should have been admissible. The issue is whether, even
    assuming the evidence of the calls were included, the ITO was sufficient to
    support the issuance of a warrant to search 18 Eden Avenue. If it was not, the
    evidence from the search of 18 Eden Avenue must be excluded, as the Crown
    concedes, and the Crown cannot meet its burden on an appeal from an acquittal.

[29]

The
    Crown submits that if the evidence of the calls between Liew and the respondent
    is included in the ITO, the evidence in the ITO as a whole supports the
    warrant. On appeal, the Crown does not challenge the trial judges holding that
    the affiant failed to make full and frank disclosure with respect to the issues
    surrounding Wendy Yus address. Nor does it challenge the trial judges
    decision to excise all references to Wendy Yu.

[30]

The
    Crown argues, however, that the remaining evidence provided reasonable grounds
    to believe that evidence of the offence would be found in the respondents
    residence. In support of this submission, the Crown notes that the delivery was
    made to the Yorktech complex where the respondent owns two units, the
    respondents van was seen at Yorktech on the day of the delivery, and Liew and
    the respondent phoned each other around the time of the delivery.

[31]

I
    reject the Crowns arguments. In my view, even with the evidence of the calls
    between Liew and the respondent included in the ITO, there was insufficient
    evidence to provide reasonable grounds to believe that evidence of an offence
    would be found in the respondents residence.

[32]

The
    search warrant was issued under s. 11(1) of the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19 (the CDSA), which provides:

11. (1)

A justice who,
    on
ex parte
application, is satisfied by
    information on oath that there are reasonable grounds to believe that


(
a
) a controlled substance or precursor
    in respect of which this Act has been contravened,

(
b
) anything in which a controlled
    substance or precursor referred to in paragraph (
a
) is contained or
    concealed,

(
c
) offence-related property, or

(
d
) anything that will afford evidence in
    respect of an offence under this Act or an offence, in whole or in part in
    relation to a contravention of this Act, under section 354 or 462.31 of the
Criminal
    Code

is in a place may, at any time, issue a warrant
    authorizing a peace officer, at any time, to search the place for any such
    controlled substance, precursor, property or thing and to seize it.

[33]

In
    other words, in order to obtain a warrant in this case, the RCMP were required to
    have reasonable grounds to believe that an offence under the CDSA had been
    committed and that a search of 18 Eden Avenue would afford evidence of the
    offence: see
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at
    para. 81. The reasonable grounds standard does not require proof beyond a
    reasonable doubt, but rather a credibly based probability that evidence will be
    found in the place sought to be searched:
Sadikov
, at para. 81.

[34]

The
    reviewing judge must ask whether there was reliable
evidence
    that might reasonably be believed on the basis of which the authorization could
    have issued
 (emphasis in original):
R. v. Araujo
, 2000 SCC 65,
    [2000] 2 S.C.R. 962, at para. 54. It is not the role of the reviewing judge to
    decide whether he or she would have issued the warrant. Appellate courts should
    defer to the findings of a reviewing judge [a]bsent an error of law, a
    misapprehension of evidence, or a failure to consider relevant evidence:
Sadikov
,
    at para. 89.

[35]

There
    is no doubt that the RCMP had reasonable grounds to believe that an offence
    under the CDSA had been committed. A substantial shipment of cocaine had been
    intercepted and was to be delivered to the Yorktech complex.

[36]

The
    main issue is whether the RCMP had reasonable grounds to believe that a search
    of 18 Eden Avenue at the relevant time would afford evidence of the offence. I
    conclude that they did not.

[37]

First,
    in my view, the trial judge did not implicitly decide that if the evidence of
    the phone calls were included then the warrant could have issued. The Crown
    relies on para. 167 of the trial judges pre-trial motions reasons to argue
    that he concluded the warrant could be upheld if the evidence of the phone
    calls were included in the ITO. The trial judge stated:

The warrant may be saved if the evidence of the phone call
    between Mr. Liew and Mr. Yu is not excised. There were certainly reasonable
    grounds to believe that Mr. Yu lived at 18 Eden. There were reasonable grounds
    to believe that a person involved in the importation of cocaine would have customs
    records or other documentation connected to the offences charged. But without
    the evidence of the phone call apparently made by Mr. Liew to Mr. Yu at the
    time the shipment was being unloaded, there was insufficient evidence in the
    ITO connecting Mr. Yu to the offence. I have deferred the fate of the phone
    call evidence to the s. 24(2) hearing. Subject to that evidence surviving,
    however, in my view the ITO could not possibly have afforded reasonable grounds
    that evidence of the offences charged in this case could be found at 18 Eden.

[38]

The
    Crown submits this paragraph means the trial judge decided that if the evidence
    of the calls were included, the ITO would provide sufficient evidence to
    support issuance of the warrant.

[39]

I
    do not read this paragraph as the Crown suggests. In my view, the trial judge
    decided only what he was required to decide at the time: that certainly without
    the evidence of the phone calls, the ITO was inadequate. He left open the
    possibility that the ITO could be sufficient if the evidence of the calls were not
    excised. He conducted no analysis of whether the ITO was sufficient with the
    calls included. The trial judge later decided that he was required to excise
    the evidence of the calls from the ITO. He was never called upon to decide the
    sufficiency of the ITO with the cell phone call evidence included, and did not
    do so. As the trial judge did not decide this issue, it is not possible to give
    his decision the deference that it would otherwise be owed.

[40]

Second,
    I reject the Crowns submission that the evidence of the phone calls saves the
    warrant.

[41]

As
    discussed, the trial judge held that there was no reliable evidence on which to
    conclude that Wendy Yu resided at 18 Eden Avenue at the relevant time. The
    Crown does not challenge the decision to excise all references to her in the
    ITO. The validity of the warrant therefore hinges on the evidence of a
    connection between the respondent and the offence. The ITO contained three
    pieces of circumstantial evidence connecting the respondent to the offence:

1.       He owned and operated a legitimate business out of two
    units in the Yorktech complex where the delivery occurred;

2.       His car was seen parked near his business on the day
    the delivery occurred; and

3.       He and Liew phoned each other around the time the
    delivery occurred.

[42]

In
    my view, this circumstantial evidence, considered together, might raise
    suspicion about a potential connection between the respondent and the offence,
    but it is not enough to establish reasonable grounds.

[43]

The
    Crown asks this court to infer that Liew called the respondent to discuss the
    delivery and that the respondent was therefore involved in the offence, and
    that evidence of the offence would therefore be found at his residence. There
    is no evidence in the ITO about the content of the calls. The inferences that
    can be made from the evidence of the calls are speculative and, without more to
    indicate a connection between the respondent and the offence, insufficient to
    meet the threshold of credibly based probability.

[44]

Despite
    a significant investigation, police had uncovered no further evidence pointing
    to the respondents involvement and had considerable evidence about the
    involvement of other individuals in organizing the offence. With the exception
    of the excised information about Wendy Yu, none of these other individuals were
    linked to the respondents residence.

[45]

In
    considering the evidence in the ITO as a whole, the inference that Liew (as
    opposed to La) would have called anyone to arrange a pick-up or drop-off of the
    cocaine is weak. The evidence suggests that Liews involvement in the offence
    was limited and that La had a leadership role. The ITO disclosed that: (1) La
    also made a phone call at the time of the delivery; (2) La may have been
    involved in other aspects of the offence; and (3) La loaded the wood into his
    own vehicle. On the basis of the evidence disclosed in the ITO, Liew may have
    been no more than a hired hand. His limited role diminishes the strength of any
    inference that the phone calls between him and the respondent related to the
    delivery.

[46]

While
    the circumstantial evidence of the respondents involvement must be considered
    cumulatively, the potential innocent explanation for his connection to the
    Yorktech complex and the presence of his car at the complex on the day in
    question cannot be disregarded. There was no evidence that there was any
    interaction between La and Liew with the respondents vehicle. The surveillance
    of the respondent conducted after the controlled delivery indicated he was often
    at the complex conducting his legitimate business.

[47]

For
    the warrant to be valid there must have been evidence to support a credibly
    based probability that the respondent was involved in the offence and that
    evidence of the offence would be found through a search of his residence. The
    main evidence connecting the respondent to the offence was the phone calls with
    Liew. In my view, the bare fact of the calls is not enough. The additional
    evidence does not help to establish a connection between the respondent and the
    offence that amounts to more than a suspicion. Considering the evidence in the
    ITO as a whole, the credibly based probability standard was not met. A warrant
    based on the ITO, as altered on review, could not have been issued.

[48]

The
    warrant to search the respondents residence was therefore invalid and the
    search was warrantless. The Crown does not argue that the evidence obtained
    from the search should nonetheless be admitted in evidence. Without this
    evidence, the Crown has no case against the respondent, and cannot meet its
    burden.

E.

Disposition

[49]

In
    all the circumstances, it is my view that the Crown has not met its onus on its
    appeal from the respondents acquittal. Accordingly, I would dismiss the
    appeal.

Released: MT NOV 2, 2015

M. Tulloch J.A.

I agree. J. Simmons J.A.

I agree. Grant Huscroft J.A.


