HMTQ v. Nguyen et al




2001 BCSC 1869



Registry:  Vancouver


Oral Ruling on Voir Dire

Mr. Justice Catliff

February 26, 2001











Counsel for the Crown

A. Chan

Counsel for the accused, Nguyen

N. Cobb

Counsel for the accused, Dang

D. Soga




s. 539(1) C.C.C.


[1]            THE COURT:  I am going to deal with the submissions that have been made on the admissibility of these exhibits.

[2]            The two accused were found in a house which the police discovered contained a marihuana grow operation in the basement.  They were arrested and taken to the police station late at night or in the early hours of the morning of the 28th/29th October 1998.  They were "booked in," as the phrase goes, fingerprinted and photographed.

[3]            As the agreed statement of facts outlines, the procedure in the police station in Vancouver is that Crown counsel review reports submitted by the police to determine what, if any, charges are appropriate.  Charge-approval Crown counsel come into the Provincial Court building for this purpose at 7:30 a.m. on weekdays, and apparently came in on this morning at 7:30 a.m. and shortly afterwards the present charges were laid against these two accused.  That is a practise that has existed for some time and, I understand, continues.

[4]            The Crown's case is based in part on a comparison of the accused Nguyen's fingerprints taken at the police station with those found at the scene of the marihuana grow operation and also photographs of him and the co-accused, Dang, taken after arrest as compared to descriptions of clothing and, I believe, other descriptions given by the police at the time of arrest.  Dang is additionally sought to be implicated by the Crown on the basis of fingerprints that were taken, on notice, prior to 1995, obviously in connection with another matter, which expert opinion on the voir dire matched with some fingerprints found at the scene of the grow operation.

[5]            All this evidence on the voir dire went in and the trial was set to resume on the 9th of January last when defence counsel, having been alerted to a decision of Mr. Justice Boyle, rose to object to the admission of the fingerprints and photographs as having been taken before the accused were charged with the offences in question.  Since then Crown counsel has filed written argument in support of the admissibility of the fingerprints and photographs, and I have heard argument today from defence counsel on the matter.  The two cases to which I am obliged to pay particular attention are the decisions of the Court of Appeal in R. v. Connors and the decision of Mr. Justice Boyle in R. v. Nicholson.

[6]            In Connors, the Court of Appeal was dealing with fingerprints taken before charge.  All three justices of appeal gave reasons for their decision.  Mr. Justice Cumming gave lengthy reasons in which he held, amongst other things, that there was a common law right in the police to take fingerprints after arrest.  The other two justices did not follow his decision and appear to have disagreed with him that the Identification of Criminals Act merely augmented, rather than displaced, police powers at common law.  Neither, however, came clearly to the decision - because they considered it unnecessary to do - that fingerprinting before charge was unlawful, although Mr. Justice Donald seems to have come close to saying that.

[7]            Mr. Justice Boyle in Nicholson was faced with a similar problem, although in his case there were two issues as he described them in the first of his two rulings.  He said this in the course of his first ruling:

The defendant’s argument for exclusion is two-fold:  first, that the arrest was unlawful, having been made without reasonable and probable grounds; and second, if lawful, then the photograph taken prior to a charge being laid offended the intention of the Act and so could not be advanced in evidence by the Crown. 


The Crown in reply did not contest that, if the arrest were found to be unlawful, that would end the matter because the photograph subsequently and consequently obtained fit the definition of conscriptive, not otherwise discoverable, evidence.  (See R. v. Stillman (1997), 1 S.C.R. 607).


[8]            Mr. Justice Boyle concluded in his first reasons that the arrest was lawful.  The next day he filed additional reasons, the hearing itself having taken place some few days beforehand.  This time he dealt with whether the photograph that had been obtained before the accused was charged was admissible in evidence.  The burden of his second set of reasons deals with an analysis of Connors in which he deals with the reasons of Mr. Justice Cumming who, as I say, held that there was a common law right of fingerprinting before charge.  He then referred to the reasons of Mr. Justice Donald to the effect that it was neither necessary nor appropriate to declare a common law power to take fingerprints incidental to a lawful arrest.  He quoted Mr. Justice Donald as follows:

This would greatly expand the power of the state to gather and retain information about individuals and would make redundant the Identification of Criminals Act and its predecessors, which have controlled compulsory fingerprinting since the procedure began.


That latter sentence certainly seems to indicate Mr. Justice Donald’s disagreement with the notion that the Act had augmented, rather than displaced, the previous common law right if there was one.  Mr. Justice Boyle then dealt with the reasons of Madam Justice Newbury who found the Act:

… has displaced the power “there may well have been” at common law to take fingerprints as part of the general powers of search at the time of arrest.


Mr. Justice Boyle then concluded:

With great respect, I am left uncertain as to the breadth of Madam Justice Newbury’s conclusion - whether it is limited to summary conviction offences or extends to those on indictment - and I am not sufficiently presumptuous to make an assumption that she joins either Donald J.A. or Cumming J.A. in her judgment on that question.  She expresses caution about deciding the unnecessary. 


For those reasons I cannot say Connors binds this court to either decision, that of Mr. Justice Donald or that of Mr. Justice Cumming. 


My own conclusion - driven in part by Madam Justice Newbury’s reference to the Charter - is that the Act has occupied the field and, therefore, the condition of charge in the Act not having been met, the photo and photo line-up evidence is not admissible.  I have reached that conclusion by asking what mischief and defect Parliament had sought to cure by passing the Act.  What stands out as the answer to that is Parliament’s requirement that there be either a charge or conviction before photographs or fingerprints can be taken.  An arrest is not enough.


That is the burden of Mr. Justice Boyle’s reasons in Nicholson, which were filed in June 1999.

[9]            Ms. Chan on behalf of the Crown says those reasons are wrong and I should follow Mr. Justice Cumming in Connors.  Mr. Cobb refers me to the well-known principles in Hansard Spruce Mills and says that I should not attempt to question the decision of Mr. Justice Boyle.

[10]        I agree with Mr. Cobb.  I consider that the reasons given by Mr. Justice Boyle for concluding that he was not bound by Connors to any particular decision, to be a well-reasoned argument based on a consideration of the relevant authorities and principles in question.  I am certainly not prepared to say that he was wrong:  in fact, I think he was right and I believe I would come to the same conclusion myself;  namely that the Identification of Criminals Act plainly requires that there be a charge before the police are entitled to fingerprint or photograph, except in the case set out in s. 2 of the Act which is an exception that does not apply in this case.

[11]        That is not the end of the matter.  This is an application by the accused to exclude evidence as having been obtained in breach of their Charter rights and although not dealt with by Crown counsel, I feel I must consider the application of s. 24(2) in this case.  In Connors, Mr. Justice Donald dealt with the matter as follows:

If the correct view is that the fingerprinting was unlawful and therefore unreasonable because it was not done strictly according to the Act, then the inquiry turns to s. 24(2) of the Charter.  I acknowledge that deference must be given to trial judges in the exercise of their discretion whether to exclude evidence under s. 24(2).  However, I am respectfully of the opinion that it was plainly wrong to exclude this evidence.  This was conscriptive evidence, but only in the most technical sense because it was ultimately compellable under the statute.  The fairness of the trial would not have been affected by its admission, notwithstanding that the evidence emanated from the accused.  The good faith of the officer was not successfully impugned.  He took Mr. Connors’ prints according to his interpretation of the RCMP policy manual which in turn uses language from the Act.


[12]        In this case there was no question asked of the officers or the persons taking the fingerprints or photographs that raised any suggestion of bad faith and none has been raised in argument.  The photographing and fingerprinting was taken here only months after the decision in ConnorsConnors itself, as exemplified by the reasons of Mr. Justice Boyle, is not clear as to whether there exists a common law power to fingerprint and photograph after arrest, but before charge.  I am certainly unable to find that there was any act of bad faith in the police continuing what seemed otherwise to be the sensible practise of having reports referred to Crown counsel before charges are considered.

[13]        In my view, therefore, it would bring the administration of justice into disrepute not to admit this evidence on the basis that, although conscriptive, it was compellable, in any event, some short few hours after the fingerprints were taken, or, alternatively, upon the issuance of a notice as set out in s. 2 of the Act.

[14]        The only question remaining, is whether the consideration of s. 24(2) was made by Mr. Justice Boyle in Nicholson so that my consideration of it is affected.  That has been the subject of some debate this afternoon.  Mr. Cobb relies on the passage I have referred to in which Mr. Justice Boyle said that the Crown did not contest that if the arrest were found to be unlawful, that would end the matter because the photograph subsequently and consequently obtained fit the definition of conscriptive.  That compares to the description of the matter made by Mr. Justice Donald in Connors when he talks of the conscriptive evidence as only to be described as such in the most technical sense because it was ultimately compellable under the statute.  The difference between the situation here and in Connors, as I understand it, as contrasted with the situation in Nicholson, was that the primary issue in the latter case was whether the initial arrest was lawful.  If the arrest was found to be unlawful there should have been no photograph. 

[15]        In this case, although there was a prior issue concerning the accused’s Charter rights, for the purposes of the present application there was no issue concerning the lawfulness of the arrest, so that the words of Mr. Justice Donald, namely that the conscriptive evidence was only so in the most technical sense, applies here.  It is also curious to me that there is no mention made of s. 24(2) in either of the reasons for his rulings given by Mr. Justice Boyle, nor, I believe, even a mention of the Charter.  But if Mr. Justice Boyle is to be said to have considered it, then I think the facts in his case must be distinguished from those in the case before me.

[16]        For those reasons my ruling is that the exhibits should be admitted into evidence. 

[17]        I should say one more thing.  Mr. Soga has sought to exclude the evidence of the fingerprinting of Mr. Dang in 1995, on the basis that s. 2(1) was not then in existence.  But, as Crown counsel points out, there was then authority under s. 501(3) of the Criminal Code, as illustrated in Connors, for the police to do what they did.  In my view, the evidence concerning Dang being photographed and fingerprinted in 1995 is likewise admissible at this trial.

“M. Catliff, J. per P.D. Dohm, A.C.J.”
The Honourable Mr. Justice M. Catliff
per The Honourable Associate Chief Justice P.D. Dohm