2004 BCSC 76 R. v. Nguyen et al

BAN ON PUBLICATION 539(1)

Before: The Honourable Mr. Justice Halfyard

Reasons for Judgment

(on the issue of the constitutional validity

of s. 492.2(1) of the Criminal Code)

Counsel for the Crown	M. Krotter
Counsel for Accused Thanh Van Nguyen	M. Griffith-Zahner
Counsel for Accused Loi Van Nguyen	S. Narbonne
Chung Sze Trieu appearing in person
Counsel for Accused My Phuong Cao	D. O'Byrne
Date and Place of Hearing:	January 5, 6, 7, 8, 9, and 12, 2004
	Prince Rupert, B.C.

[1] I gave an oral ruling on January 12, 2004, which included my decisions that s. 492.2(1) of the Criminal Code is inconsistent with s. 8 of the Charter of Rights, that it was not saved by s. 1 of the Charter of Rights and that the statute was therefore of no force or effect, to the extent of the inconsistency. I gave only the briefest of reasons for these decisions, and said that I would file written reasons later. These are the reasons.

[2] It was argued by defence counsel that s. 492.2(1) was inconsistent with s. 8 of the Charter, because it authorizes searches and seizures of information to be made in criminal investigations, on warrants based only on reasonable suspicion. S. 492.2 reads as follows:

"492.2(1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(a) to install, maintain and remove a number recorder in relation to any telephone or telephone line; and

(b) to monitor, or to have monitored, the number recorder.

(2) When the circumstances referred to in subsection (1) exist, a justice may order that any person or body that lawfully possesses records of telephone calls originated from, or received or intended to be received at, any telephone give the records, or a copy of the records, to a person named in the order.

(3) Subsections 492.1(2) and (3) apply to warrants and orders issued under this section, with such modifications as the circumstances require.

(4) For the purposes of this section, "number recorder" means any device that can be used to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or is intended to be received. 1993, c. 40, s. 18; 1999, c. 5, s. 19."

The provisions referred to in ss. (3) are:

"492.1 (2) A warrant issued under subsection (1) is valid for the period, not exceeding sixty days, mentioned in it.

(3) A justice may issue further warrants under this section."

[3] The four accused persons are jointly charged with conspiracy to traffic in cocaine, and conspiracy to traffic in heroin. The two offences are both alleged to have been committed between May 9, 2000 and May 10, 2001, at Prince Rupert, Vancouver and other places in British Columbia.

[4] On May 9, 2000, at Prince Rupert, the Honourable Judge Point granted a number recorder warrant and an order for production of telephone records, on the application of then Cst. Jo Ann Pearson of the R.C.M.P. The warrant authorized Cst. Pearson "to install, maintain, remove, monitor or have monitored a Number Recorder", with respect to three telephones in Prince Rupert. The term of the warrant was from May 9, 2000 until July 7, 2000. The offences under investigation were trafficking in a controlled substance, possession of a controlled substance for the purpose of trafficking, and conspiracy to traffic in a controlled substance. The target person was the accused, Thanh Van Nguyen.

[5] A great many telephone numbers were recorded by the number recorder, and numerous telephone records were obtained from Prince Rupert City Tel, under the production order.

[6] From the definition of "number recorder" in ss. 4, it is evident that the information that can be obtained by means of a number recorder, will provide the telephone numbers of telephones that are called "from" the target telephone, and the telephone numbers of telephones that are used to call "to" the target telephone.

[7] From monitoring a number recorder, without direct observation by surveillance, the police cannot know whether the target person, or someone else, is using the target telephone at any particular time, to make a call or to answer a call. Nor can the police know who answers any telephone that is called from the target telephone, or who is using a non‑target telephone to call the target telephone.

[8] The Crown had argued that subsection (2) enabled the police to seize telephone records from telephone companies which would enable them to identify the names and addresses of the subscribers to all telephones that had received a call from the target telephone, or that had been used to make a call to the target telephone. Crown counsel submitted that the telephone numbers alone, would be useless to the police. I rejected that argument and ruled that only telephone records for the target telephones identified in the warrant, could be obtained under ss. 2.

[9] From the evidence presented in this case, the records kept for regular (land-line) telephones are different than those kept for cellular telephones. The records for land‑line telephones include long distance calls made from the target telephone (and presumably long distance "collect" calls made to the target telephone), but do not include "local" calls made from or to the target telephone. The records kept for cellular telephones include all calls made from the target cell phone, whether local or long distance, but no record is kept of incoming calls.

[10] There is another distinction between land‑land telephones and cellular telephones, concerning the publication of telephone numbers. All land‑line telephone numbers, except those owned by subscribers who pay to have their telephone number "unlisted", are published with the name and address of the subscriber, in the telephone directory that is circulated to members of the public. By contrast, no cellular telephone numbers are published in any such directory.

[11] In my opinion, the objective of s. 492.2 is to help the police find out whether there is any telephone communication going on, between the target person and other persons who may be involved in the suspected criminal activity with the target person. To my mind, that is the only way the information that can be obtained, could "assist in the investigation" of the suspected offence.

[12] It is apparent that, before a justice can issue a number recorder warrant, he or she must be satisfied that the following facts are established:

(a) That the applicant suspects, and has reasonable grounds to suspect, that a federal "offence ... has been or will be committed" by some person or persons; and

(b) That the applicant suspects, and has reasonable grounds to suspect, "that information that would assist in the investigation of the [suspected] offence could be obtained through the use of a number recorder."

[13] In Hunter v. Southam Inc. (1984) 14 C.C.C 3d 97 (S.C.C.), the court defined what have become known as "the minimal prerequisites for reasonable searches and seizures in connection with the investigation of any criminal offence", as follows (p. 115):

"In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure."

[14] As stated in Hunter (at p. 109): "... the purpose of s. 8 ... is ... to protect individuals from unjustified state intrusions upon their privacy." From the discussion on p. 108, it is apparent that s. 8 "... only protects a reasonable expectation of privacy", and that it "protects people, not places."

[15] In my earlier ruling on the voir dire, I concluded that a person has a reasonable expectation of privacy in his or her "unlisted" telephone number and in information which would disclose, or enable the police to discover, the names of the persons who the target person was communicating with, by telephone. In my opinion, this is information of a "personal and confidential" nature, and a person's expectation of privacy is protected by s. 8 of the Charter against unreasonable searches.

[16] It was submitted by the Crown that persons subjected to searches and seizures under s. 492.2 have a very low privacy interest in the information that can be obtained. On that basis, it was contended that the lesser standard of "reasonable suspicion" was constitutionally permitted. It was argued that the statements made by Cory, J. in R. v Wise (1992) 70 C.C.C. 3d 193 provided support for this position, by analogy.

[17] In Wise, the police obtained a search warrant to search the home and vehicle of the accused, who was a suspect in a multiple homicide investigation. No evidence was discovered in these searches, but while the accused's vehicle was in their possession, the police installed an electronic tracking device in the vehicle. However, when they did so, the search warrant had expired. The police then returned the vehicle to the accused, and used the tracking device to help them keep almost constant surveillance on him.

[18] Speaking through Cory, J., the majority of the court held that the installation of the tracking device constituted a search, and that the tracking of the accused's vehicle was also an unreasonable search and seizure, notwithstanding the lesser expectation of privacy in a motor vehicle. Since the tracking device had been installed and monitored without prior judicial authorization, the search was unreasonable and in violation of the accused's s. 8 rights. However, it was decided that the evidence obtained as a result of the search should nevertheless be admitted. At the end of his judgment (p. 229), Cory, J. said this:

"I agree with my colleague that it would be preferable if the installation of tracking devices and the subsequent monitoring of vehicles were controlled by legislation. I would also agree that this is a less intrusive means of surveillance than electronic audio or video surveillance. Accordingly, a lower standard such as a "solid ground" for suspicion would be a basis for obtaining an authorization from an independent authority, such as a justice of the peace, to install a device and monitor the movements of a vehicle."

[19] A few years after Wise, s. 492.1 of the Criminal Code was enacted, apparently in response to the comments of the majority in that case. At the same time, s. 492.2 was enacted. The Crown argues that, because the lesser standard of "reasonable suspicion" in s. 492.1 is implicitly approved by the Supreme Court of Canada with respect to tracking devices, similar reasoning should be applied to the constitutional assessment of the same lesser standard, in s. 492.2.

[20] Crown counsel also referred me to the case of R. v. Monney (1999) 133 C.C.C 3d 129 (S.C.C.). In that case, Canada Customs officers detained the accused for questioning on his arrival in Canada by aircraft. Eventually, they suspected that he had ingested illegal drugs, and kept him under close watch. The accused later eliminated a quantity of heroin wrapped in condoms. The issue was whether the accused had been subjected to unreasonable search and seizure contrary to s. 8 of the Charter. Section 98 of the Customs Act purported to authorize Customs officers to search travellers on reasonable suspicion that contraband has been "secreted on or about his person", and without prior judicial authorization.

[21] Speaking for the seven member panel, Iacobucci, J. held (at para. 29) that, because prior authorization is a necessary pre-condition to a constitutionally valid search and seizure (under Hunter), the admittedly warrantless search and seizure was presumed to be unreasonable, and the onus shifted onto the Crown to rebut the presumption. By reason of Collins, that required the Crown to demonstrate that the search and seizure was authorized by law, that the law itself was reasonable and that the search was carried out in a reasonable manner.

[22] In Monney, the Crown argued that the search was authorized by s. 98 of the Customs Act. Iacobucci, J. expressly stated in para. 30 that "The constitutionality of s. 98 itself is not in issue in this appeal." The court went on to hold (in reliance on R. v. Simmons (1988) 45 C.C.C. 3d 296 (S.C.C.)) that the Hunter standard was inapplicable to border searches, and that the standard of reasonable suspicion set by s. 98, was constitutionally permissible. It was then held that the search of the accused was authorized by law (s. 98), that s. 98 was a reasonable law, and that the search was carried out in a reasonable manner (see para. 58). The court concluded that no violation of the accused s. s. 8 rights had occurred.

[23] I conclude from Monney that, subject to prior judicial authorization, border searches of the persons of travellers, based only upon reasonable suspicion, are constitutionally permissible. The reason for this appears to be that national interests may be involved in preventing the flow of contraband across the country's borders, and therefore "the degree of personal privacy reasonably expected at customs is lower than in most other situations." (See the discussion in Monney at paras. 34-37.)

[24] Counsel also referred me to R. v. Fegan (1993) 80 C.C.C. 3d 356 (Ont. C.A.) and R. v. Hackert [2000] O.J. No. 3495 (Ont. C.A.). I found those cases to be of no assistance. Unfortunately, the decision of Salhany, J. in R. v. Dickson (referred to in Hackert), could not be found.

[25] It is apparent from other decisions of the Supreme Court of Canada that there is a second exception to the Hunter standard, where searches are conducted in connection with a known and ongoing regulatory scheme. See the discussion of Sopinka, J. in R. v. Grant (1993) 84 C.C.C. 3d 173 at 187, and also see R. v. Potash (1994) 115 D.L.R. 4d 702; [1994] 2 S.C.R. 406.

[26] I do not accept the argument of the Crown that, because the search involved here is less intrusive than most other searches, and because it should be presumed that searches by way of a number recorder will be done at a very early stage in any criminal investigation, a lesser standard than "reasonable and probable grounds to believe" should be constitutionally permitted. Although the information that is provided by a number recorder, and by telephone records for target telephones, may not produce direct evidence of guilt, it can provide evidence which will enable the police to obtain more evidence that may be used to prove guilt, directly or indirectly.

[27] In Thomson Newspapers Ltd. v. Canada (1990) 54 C.C.C. 3d 417 (S.C.C.) La Forest, J. said, in part (at pp. 476-477) that: "... when the state seeks information ... in the course of a criminal investigation ... the citizen has a very high expectation of privacy in respect of such investigations." He gave what I think are compelling reasons for that conclusion.

[28] In R. v. Grant, Sopinka, J., speaking for the full court, said this (at p. 187):

"The present searches arose in the context of criminal investigations and must be assessed in strict accordance with the approach set out in Hunter ...."

[29] In the course of his judgment in R. v. Simmons (1989) 45 C.C.C. 3d 296, Dickson, C.J.C. said this (at p. 319):

"In light of the importance in preventing unjustified searches, departures from the Hunter v. Southam Inc. standards that will be considered reasonable will be exceedingly rare."

[30] In my opinion, the Hunter standards must apply. If that is correct, then s. 492.2(1) is inconsistent with s. 8 of the Charter, because it authorizes searches and seizures of information to be made in criminal investigations, under warrants based on reasonable suspicion, rather than on reasonable belief.

[31] The Crown did not make any additional submissions to support the position that s. 492.2(1) is a reasonable limit on the rights guaranteed by s. 8 of the Charter. Accordingly, I find it unnecessary to consider the issue of whether s. 492.2(1) could be justified as being a reasonable limit on the rights guaranteed by s. 8 of the Charter. I would add that I find it difficult to see how the apparent objective of this law could be of sufficient importance to justify overriding the rights protected by s. 8.

[32] On the question of the appropriate remedy, defence counsel submitted that s. 492.2(1) should be "read down" rather than struck out in its entirety. It was submitted that this could be done by substituting the word "believe" for the word "suspect". After reading the discussions of this issue by Sopinka, J. in Baron v. Canada (1993) 78 C.C.C. 3d 510 (S.C.C.) at pp. 536 - 537, and in R. v. Grant at pp. 190 – 191, I accede to the submission of defence counsel. That would import the Hunter standards into the section, and prevent the issuance of number recorder warrants and production orders, based only on reasonable suspicion.

[33] By operation of s. 52(1) of the Constitution Act, 1982, s. 492.2(1) is of no force or effect, to the extent of the inconsistency with s. 8 of the Charter of Rights.

“D.A. Halfyard, J.”
The Honourable Mr. Justice D.A. Halfyard

Citation:	*R.v. Nguyen et al*
	2004 BCSC 76