IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Ly,

 

2012 BCSC 504

Date: 20120405

Docket: 68651

Registry: Kelowna

Regina

v.

Cheuk Bun Lee, Kiet Tu Ly and Siu Shing Wong

Before: The Honourable Mr. Justice Barrow

Reasons for Judgment

Counsel for the Crown:

C. Burnett

Counsel for the Accused, K.T. Ly:

N.L. Cobb

Place and Date of Trial/Hearing:

Kelowna, B.C.
January 4 and 6,
February 28 - March 2, 2011

Written Submissions:

March 17 and May 16, 2011

Place and Date of Judgment:

Kelowna, B.C.
April 5, 2012


 

[1]             Kiet Ly is one of three individuals charged with possession of marijuana for the purpose of trafficking and cultivation of marijuana, contrary to s. 5(2) and s. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He has applied to have evidence excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

[2]             The charges arise as a result of a search the police carried out on rural property on September 3, 2008. On that day, a large number of police executed a search warrant on property civically known as 8405 Highway 33. The property is just less than 39 acres in size and located about 30 kilometres from Kelowna near the community of Beaverdell. On executing the search warrant, the police found 15 large greenhouses containing 5,102 marijuana plants. They also found generators, fertilizers and water pumps. According to the admitted expert evidence, this marijuana growing operation was capable of producing one crop of marijuana per year. When seized, all of the plants were approximately one to two weeks from maturity. At maturity, they would have yielded just less than seven ounces of bud marijuana per plant. The entire crop would have produced about 2,212 pounds of marijuana. Sold at the pound level and at prices prevailing in 2008, the crop would have yielded approximately $4.8 million (and significantly more if sold at the ounce level).

[3]             Five people, including Mr. Ly, were arrested at the property on the day the police executed the search warrant. Three are charged in the indictment now before the court. One of those, namely, Siu Shing Wong, has pleaded guilty. Cheuk Bun Lee has pleaded not guilty but has not advanced an application to exclude evidence.

[4]             On behalf of Mr. Ly, Mr. Cobb alleges seven distinct violations of Mr. Ly’s Charter rights. In addition, he argues that the police violated the Charter rights of others in two instances. These latter allegations are said to be relevant to the s. 24(2) analysis that must be carried out if any of the alleged breaches of Mr. Ly’s rights are established.

[5]             As to the alleged breaches of Mr. Ly’s rights, Mr. Cobb argues first that his s. 10 rights were violated initially when the police did not tell him the reason for his arrest or advise him promptly of his rights under s. 10(b) . Second, the police required Mr. Ly to have his picture taken at the scene in the company of the officer who arrested him and before he had been advised of or had an opportunity to exercise his rights under s. 10(b). In a related submission, he argues that he was asked to provide identification before his rights had been explained to him and before he had an opportunity to exercise those rights. Third, he was not given an opportunity to exercise his right to counsel until several hours after his arrest. Fourth, after his arrest, and while he was in police custody at the scene, he was bitten by a police service dog. This, it is argued, amounts to a violation of either s. 7, s. 8 or s. 12 the Charter. Fifth, when an attempt was made to explain to Mr. Ly his rights under the Charter, the police did not do so in a language that Mr. Ly could understand. Sixth, the day after his arrest, Mr. Ly was compelled to return to the scene and retrieve his identification from a house on the property the police had searched. Finally, Mr. Ly was not taken before a judicial justice of the peace until some 28 hours after his arrest, in violation of s. 503 of the Criminal Code.

[6]             The two matters that did not involve a violation of Mr. Ly’s Charter rights, but to which Mr. Cobb points in support of his s. 24(2) argument, are the following. First, in mid‑August 2008, the police went to the area of the property with a view to determining what was being grown in the greenhouses. On that day, they inadvertently trespassed on the property. In addition, when the police flew to the area of the property on August 7, 2008, they may have actually flown over part of the property. Second, on the day the police executed the search warrant, a second police service dog bit another of the individuals arrested, specifically Mr. Wong.

[7]             Before dealing with these specific allegations, I will set out some of the background.

General Circumstances

[8]             The police interest in the property began in July 2008 when, by chance, a police helicopter flew over the area, and the pilot noticed a significant number of large greenhouses in the middle of a forested area near Highway 33. The pilot thought the structures were new, and given their location, his suspicion was aroused. As a result, he reported the matter to Corporal Collins, who was then attached to the General Investigation Section of the Southeast District RCMP office. Corporal Collins had the pilot fly him to the area on August 7, 2008. On that flight, he took some photographs and some global positioning system readings. On returning to his office, he used Google Earth software and the GPS co-ordinates he had taken during the fly over to plot the location of the property on a map. He then made inquiries of the Regional District and learned that the property was owned by a company known as Mission Control Corporation. He conducted a search of that company and learned that its sole director was deceased and that the company itself had been dissolved due to non-payment of taxes. He made inquiries of the utility provider in the area, FortisBC, and learned that no hydro service was being provided to the property.

[9]             On August 14th, Corporal Collins and Sergeant Jacklin drove to the area. As earlier noted, the property is approximately 39 acres in size. It is, for the most part, forested and undeveloped and surrounded by forested and undeveloped Crown land. Improvements on the property consist of a driveway, a residence, a large barn‑like structure, several outbuildings, and the 15 large greenhouses. The bulk of the property and all of the improvements are on the west side of Highway 33; a small portion of the property is to the east of the highway. To access the property, Corporal Collins and Sergeant Jacklin hiked over Crown land. Then, using a handheld GPS and the coordinates Corporal Collins had obtained on August 7th, they located a corner pin marking the south east corner of the property. The corner pin had an “L” on the top, which the officers took to represent the angle of property boundary at the location of the pin. The angle also seemed to correspond generally with the map Corporal Collins had earlier referenced. The officers went to the property that day to attempt to determine what was being grown in the greenhouses. To that end, Corporal Collins took a number of photographs from a rock outcropping. Sergeant Jacklin was using a spotting scope and Corporal Collins was using a camera with a telephoto lens. From their vantage point, some several hundred metres from the greenhouses, they made various observations which were later used to obtain the search warrant. The rock outcropping from which the photographs and observations were taken is not on the property.

[10]         The police went to the property on three other occasions, specifically August 21st, August 22nd and August 25th. They made various observations on those days and took some photographs but were not able to significantly advance their investigation.

[11]         On August 28, 2008, Corporal Collins sought and was granted a general warrant, which allowed the police to go on the property for purposes of taking photographs and conducting other investigation. When he and other officers returned to the property, they saw and photographed five Asian males. In addition to the 15 greenhouses (in two clusters - one consisting of 10 greenhouses and the other of five), they observed a house and several outbuildings. The only vehicle access to the property is from Highway 33 by way of a long driveway which intersects the highway some distance north of the house, the outbuildings and the greenhouses. The house is located in a clearing. It is the first structure on the property to which the driveway gives access. Some distance south and west of the house is another clearing in which there are a number of outbuildings. Some distance further west of these buildings is another clearing where the greenhouses are located. In addition to being reasonably heavily forested, the surrounding property is quite uneven. The land to the south and west of the greenhouses is significantly higher than the developed areas of the property. The rock outcropping from which the police took some photographs is in that area.

[12]         On August 28th, Corporal Collins saw four of the five men he observed that day working in and around the greenhouses. Based on all of the observations and other investigation the police carried out, they applied for and were granted a search warrant, which authorized them to search the property on September 3rd. No challenge is made to that search warrant or the general warrant that was obtained in August.

[13]         The police expected to find at least five Asian males on the property when they carried out their search. Their plan was to send an advance group of officers, including a dog handler and Emergency Response Team members to the property before the main group of officers arrived to execute the warrant. The advance group were to hike around to the western boundary of the property and remain there until the main group of officers arrived. The main group of officers planned to enter the property using the driveway. The purpose of deploying the advance group was, among other things, to deal with the possibility that individuals on the property may attempt to leave by way of the surrounding bush. Once the property had been secured, the police planned to have the officers who arrested individuals on the property brought to Corporal Smart, who was to provide the arrestees with their Charter rights. Corporal Smart was going to do that at a central location on the property.

[14]         Corporal Arnold was an Emergency Response Team member and part of the advance group. When the cue was given to begin making arrests, he went into a greenhouse that he had earlier seen an Asian male enter. Once inside he saw Mr. Ly who was watering marijuana plants. Corporal Arnold was dressed in camouflage clothing and armed with an M16 rifle. He ordered Mr. Ly to the ground, both orally and by gesture. Mr. Ly obliged and lay on the ground. This occurred shortly after 8:40 a.m.

[15]         Corporal Arnold handcuffed Mr. Ly and took him out of the greenhouse and sat him on the ground to await the arrival of a uniformed officer. That officer turned out to be Constable Whitbread who arrived shortly after Mr. Ly had been handcuffed. Constable Rattan is a dog handler and, like Constable Whitbread, was part of the main group of officers who executed the search warrant. He had his police service dog, Bak, with him that day. He assisted in searching and clearing the various greenhouses. Once the greenhouses had been searched, he approached Corporal Arnold to chat. Constable Whitbread arrived shortly after. As Constable Rattan was chatting with Corporal Arnold, Bak, who was on a leash with about six to eight feet of line, suddenly and without warning lunged at and bit Mr. Ly who was sitting quietly on the ground. Mr. Ly was bitten on the calf. Constable Rattan physically restrained his dog, and Mr. Ly was then taken by Constable Whitbread to Corporal Smart’s location. Before being presented to Corporal Smart, the police took a photograph of Mr. Ly in Constable Whitbread’s presence.

[16]         Corporal Smart testified that Mr. Ly was the fourth of the five people he dealt with that day. It was his responsibility to explain the search warrant and to explain to the various individuals the reason for their arrest and their rights under the Charter. He did that in relation to Mr. Ly at approximately 9:45 a.m. After Corporal Smart finished dealing with Mr. Ly, Constable Whitbread drove Mr. Ly to the hospital in Kelowna to have the wounds left by the police dog dealt with. He left the property shortly after 10 a.m. and arrived at the hospital just before 11 a.m. After his wounds were treated, Mr. Ly was taken to the detachment where he was booked into cells.

[17]         In the meantime, Corporal Smart completed his duties at the scene and departed for Kelowna at about noon. On arriving at the detachment, he set about making inquiries to confirm Mr. Ly’s identity. When Mr. Ly was arrested, he did not have any identification with him. Corporal Smart made inquiries of various databases to which the police have access. He learned that Mr. Ly had a driver’s licence which contained his address and some minimal physical descriptors, all of which corresponded to the information Corporal Smart had obtained from or through Mr. Ly. By 5 p.m., Corporal Smart was still not satisfied that he had adequately confirmed Mr. Ly’s identity, and thus he sought the assistance of Constable Li, a Cantonese speaking member of the Kelowna detachment. Corporal Smart learned from Constable Li’s conversation with Mr. Ly that Mr. Ly had a wallet containing his identification in a pocket of a pair of his pants which were in the house at the property. Mr. Ly was then lodged in cells.

[18]         The next morning, Corporal Smart and another officer (not Constable Li) took Mr. Ly back to the property. Mr. Ly retrieved his wallet and Corporal Smart returned him to the detachment, arriving there at about 10:15 a.m. At 11:07 a.m., Mr. Ly was brought before a judicial justice of the peace. The hearing concluded at 11:26 a.m., and Mr. Ly was released from police custody at 12:16 p.m.

Specific Allegations of Breaches

[19]         I will deal with the s. 10 issues together and then address the other allegations individually.

(a)      The Section 10 Issues

[20]         There are three issues raised in relation to s. 10. The first involves the delay between Mr. Ly’s arrest and when he was told of the reasons for his arrest and advised of his rights under s. 10(b). The second relates to the informational component of s. 10, and specifically whether the police explained to Mr. Ly his rights under that section in a way that he could understand. The final issue relates to the implementation of s. 10(b), and specifically whether Mr. Ly was given an opportunity to exercise his right to counsel in a timely way.

[21]         Mr. Ly was arrested shortly after 8:40 a.m. He was presented to Corporal Smart at about 9:45 a.m. Corporal Smart dealt with him until 9:53 a.m. Section 10(a) of the Charter of Rights provides that everyone has the right on arrest “to be informed promptly of the reasons” for their arrest. Whether an accused has been “promptly” informed of the reason for his or her arrest and provided with the informational component necessary to comply with s. 10(b) will depend, to some degree, on the circumstances. The circumstances of note in the matter at hand are the geography of the area, the magnitude of the investigation the police were in the process of conducting, and the anticipated language barrier. As to the former, the police were searching a large rural property on which they arrested a number of people. It took time to simply secure the property, something that was not unreasonable to do, before moving the various individuals who had been arrested, around the property. As to the language barrier, the police anticipated language difficulties, but they did not know its extent or its precise nature. I will deal with the adequacy of the efforts they made to address this problem later in these reasons. For present purposes, I simply note that, in my view, it was reasonable for the police to attempt to provide the individuals who were arrested that day with their Charter rights and the other information the police are obliged to explain through a single officer who would attempt to convey this information in a language the arrestees could understand. Proceeding in that matter necessarily occasioned some delay inasmuch as five people were processed by that officer. Mr. Ly was the fourth. In these circumstances, the delay of just over one hour between the time of Mr. Ly’s arrest and when the police attempted to comply with s. 10(a) and (b) does not amount to a breach.

[22]         The next issue is whether the police complied with their obligation to inform Mr. Ly, in a meaningful way, of his rights under s. 10(b).

[23]         As earlier noted, the police anticipated they would face a language barrier when dealing with the people they expected to find on the property. They did not know what language those people spoke. All they knew was that the individuals that had previously been seen at the property appeared to be of Asian descent. Corporal Smart was assigned the task of ensuring that those arrested were properly informed of the reasons for their arrest and their rights as under s. 10(b) of the Charter. With a view to discharging that duty, he downloaded several documents from an internal RCMP website. He testified that he understood the documents he downloaded contained the informational component of s. 10(b) written in a variety of Asian languages. He downloaded ones that he believed were written in Japanese, Korean, Vietnamese and simple or simplified Chinese.

[24]         The plan the police settled upon was that Corporal Smart would remain at a central location - a staging area - near the residence on the property. Each person arrested would then be brought to him by the arresting officer. Corporal Smart planned to deal with each individual separately. He planned to ask each person whether he understood English, and for those who indicated they did not, he planned to put before them, one at a time, the documents he had downloaded from the police website. He hoped that the individuals arrested would indicate to him when he came to a document written in a language the person could understand.

[25]         Corporal Smart followed the plan. When Mr. Ly was presented to him, he said that he had only a very rudimentary understanding of English. Corporal Smart then began placing the foreign language documents in front of him, one at a time. Mr. Ly indicated that he did not understand the Korean document, nor did he understand the document written in Japanese. When the simplified Chinese document was placed before him, however, Mr. Ly indicated that he understood it. Corporal Smart then told Mr. Ly, in English, what he was being arrested for and gave him a copy of the search warrant which was also in English.

[26]         The accused argues that when there are circumstances from which it may be concluded that an accused person does not understand the English language, then the police have an obligation to make reasonably sure the accused understands the rights guaranteed by s. 10 of the Charter. That is so because s. 10 guarantees to everyone the right to be “informed” of the rights guaranteed by the section. Informed means “meaningfully informed”. All of this was expressed by Stortini D.C.J. in R. v. Michaud (1986), 45 M.V.R. 243 (Ont.Dist.Ct.). Mr. Cobb argues that on the evidence, it was obvious to all concerned that Mr. Ly did not speak or understand English. He argues that what the police did fell short of “meaningfully informing” him of his rights.

[27]         Mr. Cobb points to several cases in support of his position in addition to Michaud. Specifically, he references R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont.C.A.); R. v. S.L.H., 2004 BCSC 410; R. v. Ly, [1993] O.J. No. 268 (Ont.C.J.); R. v. Shmoel, [1998] O.J. No. 2233 (Ont.C.J.); and R. v. Bath (2007), 47 M.V.R. (5th) 203 (Ont.C.J.).

[28]         In Michaud, Stortini D.C.J. explained:

            The police may not be required to go to the extreme means in order to respect an accused's rights under S. 10 of the Charter. It is necessary, however, in order to comply with the section that an accused be meaningfully informed of the rights. The accused must understand what is being said to him or her and understand what the options are in order that he or she may make a choice in the exercise of the rights guaranteed by the Charter.

            It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by S. 10 of the Charter. As s. 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.

            If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances.

These observations were endorsed by Lacourciere J.A. on behalf of the Ontario Court of Appeal in Vanstaceghem, which was in turn applied by Melnick J. in S.L.H.

[29]         Before turning to the application of these principles in the context of this case, it is important to note one further principle: the onus is on the accused to establish a breach of his Charter rights if he wishes a remedy under s. 24(2). In Michaud, the accused testified and said that he did not understand much, if anything, of what the police had told him about his rights under s. 10(b). So, too, in Vanstaceghem, where the accused testified that he understood only “slightly” what had been explained to him by the police. In R. v. Ly, the accused testified that he did not understand much of what he had been told by the police (para. 7). In S.L.H., which unlike Michaud and Vanstaceghem did not involve a language barrier, the accused testified that she did not understand the information given to her by the police. Melnick J. noted at paragraph 8 the onus on an accused who asserts a violation of his or her rights to establish or call evidence to that effect. It is not necessary that an accused testify in order to establish a breach of s. 10(b) as Bath and Shmoel demonstrate, but there must be some evidence of a lack of understanding.

[30]         It is clear that there were “special circumstances” in this case. Mr. Ly had little understanding of English. The issue is whether, given those circumstances, he has established a breach of his s. 10(b) rights. I am not satisfied that he has.

[31]         I note and am troubled by the fact that there is no translation of the simplified Chinese script that was presented to Mr. Ly by Corporal Smart. In fact, the script that was tendered in evidence is not even a copy of the one that was shown to Mr. Ly. I accept Corporal Smart’s evidence that he downloaded a script from the R.C.M.P. internal website and he believed it to contain a recitation of the s. 10(b) rights. In addition, I am satisfied that Mr. Ly understood what was written on that script when it was presented to him. Although there is no proof that what was written in Chinese characters on the script that was shown to Mr. Ly contained the informational component of s. 10(b), nor is there any evidence that it did not. Given this, I am not satisfied that the accused has discharged the burden on him to establish a breach of the informational component of his s. 10(b) rights.

[32]         In terms of s. 10(a), Corporal Smart prepared what he referred to as an “arrest script”. It was in English and set out the fact that the person to whom it was directed was under arrest for possession for the purposes of trafficking and cultivation of marijuana. Corporal Smart showed and read this document to Mr. Ly. I am satisfied that, at the scene, Mr. Ly did not understand either what he was told or what he was shown in relation to the reasons for his arrest.

[33]         Mr. Ly was returned to the detachment after first going to the hospital. He arrived sometime in the early afternoon. Corporeal Smart also returned to the detachment. He next dealt with Mr. Ly shortly after 5 p.m. when he sought the assistance of Constable Li. Constable Li can speak and understand Cantonese, but he cannot read or write it. Corporal Smart gave Constable Li the two documents that he had shown to Mr. Ly at the scene, that is, the one that he believed contained the s. 10(b) Charter information in Chinese and the arrest script in English. Constable Li testified, and I accept, that he and Mr. Ly spoke to each other in Cantonese. Constable Li translated the arrest script into Cantonese for Mr. Ly. He said that he was “confident” that Mr. Ly understood this information. I am satisfied that he did. As to the s. 10(b) document, written in Chinese characters, Constable Li could not say what it said because he could not read it. He did not translate the informational component of the s. 10(b) rights from his Charter card which he had with him. He said that he “would have” ‘summarized’” from memory those rights and translated them, along with the police caution, into Cantonese to the best of his ability. He did not specifically ask whether Mr. Ly understood any of what he had been shown or told but he, that is, Constable Li, believed that he did understand.

[34]         The delay of almost nine hours before Mr. Ly was told in a language he could understand of the reasons for his arrest amounts to a breach of his right to be told that information promptly.

[35]         The final issue relates to the implementational aspect of s. 10(b). The breach asserted is the failure of the police to arrange for an opportunity for Mr. Ly to contact counsel from the scene, as opposed to waiting until he was returned to Kelowna. There is no admissible evidence as to when Mr. Ly was first given an opportunity to contact a lawyer. Corporal Smart testified that he read in the prisoner log book an entry to the effect that Mr. Ly had spoken to a lawyer at about 1:20 p.m. that day. The log book is not in evidence.

[36]         One of the duties imposed on the police as a corollary to s. 10 of the Charter is the duty to provide a detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay (R. v. Manninen, [1987] 1 S.C.R. 1233 at para. 22). In Manninen, the accused was detained during the course of a search of an office. There was a telephone available in the office, but the accused was not given permission to use it. The court held that amounted to a breach of his rights under s. 10(b). In doing so, Lamer J. noted at para. 21, “...where a telephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until arrival at the police station.”

[37]         The evidence in this case is that because of the remote location of the property, there was no cellular telephone service there. There is no evidence one way or the other as to whether there was a conventional telephone on the property. Absent that evidence, I am not satisfied that Mr. Ly’s right to consult counsel without delay was infringed by the police waiting until he had been returned to the detachment before giving him access to a telephone.

(b)      Compelling Mr. Ly to have his picture taken with the arresting officer

[38]         Before Mr. Ly was provided with an explanation of the reason for his arrest or his rights under the Charter, he, like all of the individuals arrested that morning, was photographed in the presence of the arresting officer.

[39]         Mr. Cobb argues that this process is tantamount to compelling an accused to provide self-incriminatory evidence without first having been given an opportunity to consult with counsel. He argues that it violates s. 10(b) of the Charter as the right guaranteed in that subsection is explained in R. v. Manninen. As noted above in Manninen, Lamer J., on behalf of the unanimous court, held that s. 10(b) imposes at least two duties on the police in addition to the obligation to inform a detained person of his or her rights. First, the police must afford the detained person a reasonable opportunity to exercise the right to retain and instruct counsel without delay; and second, they must “cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel” (at para. 23). Mr. Cobb likens the photographing of Mr. Ly in the company of the officer who arrested him to eliciting evidence and thus, he argues, it was a violation of s. 10(b). In support of this proposition, he cites R. v. Ross, [1989] 1 S.C.R. 3, and R. v. Vu, [1998] B.C.J. No. 986 (S.C.).

[40]         In Ross, the appellants were arrested as suspects in a break and enter. Following their arrest, but before they had an opportunity to consult counsel, they were compelled to participate in a physical lineup during which they were identified as the individuals responsible for the break and enter by several eye witnesses. The eye-witness identification was tendered and admitted at trial. At issue when the matter reached the Supreme Court was whether their participation in the physical lineup, which gave rise to the identification evidence, amounted to a violation of their rights under s. 10(b). Lamer J., on behalf of the majority of the court, held that it did.

[41]         I do not consider the matter at hand to be parallel to or analogous with the situations in Ross or Vu. In Ross, the evidence at issue was the identification of the accused by various eye witnesses. In connection with that evidence, the crown sought to lead evidence of the identification that various witnesses had made of the accused at a physical lineup. The case turned on whether that evidence should have been excluded under s. 24(2) of the Charter inasmuch as it had been obtained prior to the accused having been given an opportunity to consult with counsel. The court held that the police cannot have a detainee participate in a process that “...could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise [his or her right to counsel]” (para. 17). Evidence of the out of court identification of the accused in a lineup, whether a physical lineup or a photographic lineup, may be admissible as original evidence of identification, or as evidence necessary to assess the probative value of an in-court identification made by a witness (see generally R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont.C.A.) per Doherty J.A.). Whatever the basis of its admissibility, it is evidence created through or by the compelled participation of the accused.

[42]         What the police did in this case is record the evidence at the scene of what they believed to be a crime. The appearance and identify of the people found there was recorded as part of that process. In doing so, the police did not violate Mr. Ly’s rights as guaranteed by s. 10(b) of the Charter. First, the police are entitled to investigate what they reasonably believe to be a crime. There is no question but that they were entitled to enter on the property that day. Once there, they were entitled to record the scene as they found it. Mr. Ly was part of that scene, as were the other men found there that day. Viewed from this perspective, the police were not attempting to elicit evidence from Mr. Ly, rather they were attempting to record, as accurately as they could, the evidence they already had. The police did not take the photographs for the purpose of later preparing a photographic lineup to show to witnesses, nor did they use the photographs in that way. Finally, this conclusion is fortified when viewed from the perspective of the purpose of s. 10(b). In Manninen, Lamer J. noted at para. 23 by way of explanation for the two duties that s. 10(b) places on the police:

...The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights...

[43]         In Ross, Lamer J. picked up on that theme at paragraph 19. He left for another day the question of whether an accused person has a positive right to refuse to participate in a lineup but concluded that there was certainly no obligation to participate, and thus there was a choice to be made which choice may have consequences for the eventual trial. In those circumstances, the ability to access counsel and seek advice on whether and if so how to participate in the requested process was important. In my view, the accused in this case did not have a right to decline to have his picture taken. To the extent that is so, the purpose that s. 10(b) seeks to serve would not be advanced by affording access to counsel prior to the photographs being taken.

[44]         As to Vu, the accused had been arrested as part of a “buy and bust” investigation. An undercover police officer purchased cocaine from him, or someone the officer thought was him. Sometime later (although precisely how much later is not set out in the decision), Mr. Vu was arrested, presumably along with others from whom the undercover officer claimed to have purchased drugs. He was then presented to and photographed with the undercover officer. These actions tainted the undercover operator’s eye witness identification. They did that in a manner similar to that which occurs when the police confirm to a witness during a photographic or live lineup that the person the witness identified is the suspect in the event. The evidence was admissible but Romilly J. found the weight to be accorded it was diminished by the process the police had employed. Whether and if so to what degree, the procedure followed by the police in this case affects the weight of the identification evidence is not a matter to be decided on this voir dire.

[45]         In conclusion, I am not persuaded that the procedure used by the police, whereby they took a photograph of Mr. Ly in the company of Constable Whitbread, violated Mr. Ly’s Charter rights to the extent that photograph was used by Constable Whitbread to refresh his memory of the physical appearance of Mr. Ly.

(c)      The Dog Bite

[46]         Mr. Ly was bitten by police service dog Bak shortly after he was arrested. The Crown characterizes the event as an “unfortunate accident” involving not much more than momentary contact between the police service dog and Mr. Ly. Mr. Cobb describes it in markedly different terms:

...The fact of the matter is that a prone, handcuffed and defenceless individual who had complied meticulously with every police direction to that point in time was subjected to an unprovoked and prolonged attack which, according to the best available evidence was both terrifying and extremely painful.

[47]         These divergent characterizations stem, in part, from the evidence of the four officers who witnessed the event. Those officers are Constable Whitbread, Constable Dodds, Constable Rattan and Corporal Arnold. All of the witnesses testified that Mr. Ly was sitting quietly with his head down and his hands cuffed behind his back near the entrance to the greenhouse in which he had been apprehended. In addition, they all said that police service dog Bak was on a leash held by his handler, Constable Rattan, throughout the event. Finally, all of the witnesses agree that Mr. Ly did not do anything to provoke the dog, nor did the dog give any advance warning that he was about to attack.

[48]         According to Constable Whitbread, the dog bit Mr. Ly on the leg. Mr. Ly yelled and Constable Rattan immediately pulled the dog off. Constable Whitbread’s memory of the event was not particularly sharp. He could not recall Constable Rattan having to straddle the dog or having to force the dog’s mouth open or, for that matter, admonishing the dog following the event. Corporal Arnold was facing Constable Rattan, chatting with him. Mr. Ly was off to the side and perhaps somewhat behind him. Corporal Arnold saw Constable Rattan’s arm being jerked out to the side as a result of the dog pulling on the leash. He heard a loud painful scream, and turned around and observed Constable Rattan, whose back was towards him, pulling the dog off of Mr. Ly. Like Constable Whitbread, he could not recall Constable Rattan having to pry the dog’s jaws from Mr. Ly’s calf, but he recalled Constable Rattan yelling loudly at the dog. Constable Rattan testified that he approached Corporal Arnold that morning simply to chat. He was not there for the purpose of using his police service dog to advance the investigation in any way. He testified that he had been chatting with Corporal Arnold for about 30 seconds when, without warning, his dog lunged at and bit Mr. Ly. He said that Mr. Ly yelled, but not particularly loudly, following which Constable Rattan commanded his dog to release, and the dog complied. He denied that he had to pry his dog’s jaws open to force him to release Mr. Ly. He acknowledged that he did scold his dog and may have administered correction through the choke chain the dog was wearing.

[49]         Constable Dodds’ account of the event is both more detailed and at variance with the accounts of the other officers. He testified that he approached Corporal Arnold’s location in Constable Rattan’s company. The three officers were discussing clearing the greenhouses when Constable Dodds noticed the police dog jump on something in the debris that was on the ground in the vicinity of the officers. Until that point, Constable Dodds was not aware that Mr. Ly was even present. He said that Constable Rattan yelled at the dog and had to physically remove the dog’s head from Mr. Ly’s leg. He described Constable Rattan as wrestling with the dog who would not let go of Mr. Ly’s leg when commanded to do so. He said Constable Rattan was very upset and screaming at his dog. As to Mr. Ly, Constable Dodds said he was screaming and crying and obviously extremely afraid.

[50]         Mr. Ly suffered perhaps four or five puncture wounds to his right calf as a result of this incident. Constable Dodds removed Mr. Ly’s boots and examined and photographed the wounds. He testified that they were not bleeding profusely and that, in his opinion, Mr. Ly did not require immediate first aid. He then comforted Mr. Ly and attempted to calm and reassure him. Shortly after the dog bit Mr. Ly, Constable Whitbread walked Mr. Ly over to Corporal Smart’s location which was some distance away. He testified that Mr. Ly did not have any difficulty walking. As earlier noted, Mr. Ly was taken to the hospital for treatment. There is no evidence of what treatment he required, apart from the secondhand account offered by Corporal Smart to the effect that he received some pain medication.

[51]         At the time of these events, Constable Rattan had been a dog handler in the RCMP for about four years. He began working with Bak when Bak was a puppy. Bak is the only dog that Constable Rattan has worked with, and he continues to work with him today. He testified, and I accept, that this event is the only occasion in which his dog has behaved aggressively otherwise than on command.

[52]         I agree with Mr. Cobb that, to the extent this event has Charter implications, those implications fall to be assessed either under s. 8 (the right to be secure against unreasonable search or seizure), s. 7 (the right to security of the person), or s. 12 (the right not to be subjected to cruel and unusual treatment). Further, I agree that in the circumstances of this case, it does not particularly matter which section is used to provide the analytical framework.

[53]         I have considered the authorities cited by Mr. Cobb, including R. v. Lewis, 2001 BCPC 426, [2001] B.C.J. No. 2856; R. v. Spannier, [1996] B.C.J. No. 2525 (S.C.); R. v. Bell, 2009 BCPC 193, [2009] B.C.J. No. 1261; R. v. Edwardson, 2005 BCSC 463, [2005] B.C.J. No. 777; and R. v. Livingstone, 2004 BCPC 602, [2004] B.C.J. No. 2999. In each of these cases, evidence was excluded on the basis that the accused rights had been violated. While in most cases there were other violations, they all involved either the intentional application of unnecessary force by the police to a detained person, or in the case of Edwardson, the use of unreasonable force in the execution of a search warrant.

[54]         The Supreme Court of Canada addressed the constitutional implications of the excessive use of force by the police in the context of an arrest and subsequent detention in R. v. Nasogaluak, 2010 SCC 6, [2101] 1 S.C.R. 206. They did so on the basis that it amounted to a breach of s. 7 of the Charter. Lebel J. wrote at pp. 229 and 230:

...I accept the Court of Appeal's determination that the trial judge had made no palpable and overriding error in his findings that the police had used excessive force at the time of Mr. Nasogaluak's arrest. Further, I believe that a breach is easily made out on the facts of this case. The substantial interference with Mr. Nasogaluak's physical and psychological integrity that occurred upon his arrest and subsequent detention clearly brings this case under the ambit of s. 7...

[55]         I will assume for purposes of this analysis that exposing a compliant and defenceless prisoner to a police dog which then, in an unprovoked act of aggression, bites the prisoner amounts to a violation of the accused rights under s. 7. The event under consideration was not intentional; given the dog’s prior history, it may not have even been negligent or careless. On the other hand, there is some risk that a police service dog may behave in an aggressive manner towards a defenceless prisoner. Although Bak’s history may not support that conclusion, it is arguably a common sense conclusion and one supported by the conduct of the only other police service dog on the property that day. In these circumstances, I consider it appropriate to assume the event amounted to a breach of s. 7 and will address the implications of the breach under s. 24(2).

(d) Breach of Section 503 of the Criminal Code

[56]         Section 503 of the Criminal Code, R.S.C. 1985, c. C-46, provides in part that:

A peace officer who arrests a person with or without warrant...shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period...

[57]         Mr. Ly was apprehended at approximately 8:40 a.m. on September 3, 2008. He was taken before a justice of the peace at 11:07 a.m. on September 4, 2008, some two-and-a-half hours beyond the outer limit set in s. 503. This amounts to a breach of s. 9 of the Charter (R. v. Chung, 2011 BCCA 131, [2011] B.C.J. No. 446).

(e) Returning Mr. Ly to the Property

[58]         According to Corporal Smart at least one of the reasons for the delay in bringing Mr. Ly before a justice of the peace was his desire to confirm Mr. Ly’s identity. When Mr. Ly was arrested, Corporal Smart searched him and could not find any documentary identification. He asked Mr. Ly his name, address and date of birth, and Mr. Ly provided that information (Mr. Ly had a rudimentary understanding of English). Once back at the detachment, the officer checked Mr. Ly on various police information systems. The only information that exercise generated was that he had a driver’s licence in his name and with the address he had given the officer. The information also included a general physical description although not a photograph.

[59]         Later that afternoon, Corporal Smart explained to Mr. Ly that they needed to confirm his identity and, through Constable Li, asked him if he had any identification documents. Mr. Ly said that he did and that they were in his wallet, which was in a pair of his pants which were in the house on the property. Corporal Smart made inquiries to see if there were any police officers still at the scene, but they had all left by that point. The next morning, he and another officer drove Mr. Ly back to the property and the wallet was retrieved. They arrived at the property at 9:20 a.m. and left at 9:26 a.m. They then went directly back to the police station arriving at 10:15 a.m. Mr. Ly was brought before the justice of the peace at 11:07 a.m. and he was released at 12:16 p.m. that day.

[60]          Mr. Cobb argues that this trip violated a number of Mr. Ly’s Charter rights. First, he argues that “the trip involves a warrantless search of the property for which no evidence has (or could be) tendered to rebut the presumptive violation of [Mr. Ly’s] section 8 rights”. Further, he argues that because Corporal Smart did not know whether Mr. Ly had been able to contact counsel and because he did not provide him with a supplementary warning about whether he was obliged to co‑operate with the police, and if so what the implications of that might be, taking him back to the property amounted to a further violation of Mr. Ly’s s. 10(b) rights. Finally, he argues that in telling the police where his wallet was in the house and, more generally, in participating in the trip to retrieve it, the accused was providing a “statement by conduct” which the Crown is obliged to prove was voluntary.

[61]         Corporal Smart was asked whether he thought about getting another warrant before returning to the house on September 4th. He was asked about whether he thought of providing Mr. Ly with a supplementary caution before seeking his assistance in securing the wallet. His answer to these questions, and others in a similar vein, was that he did not consider doing these things because, from his point of view, he was not trying to gather evidence, he simply wanted to establish Mr. Ly’s identity as he was required to do.

[62]         The Crown argues that there is no basis upon which to conclude that Mr. Ly had a reasonable expectation of privacy in the residence, and thus his s. 8 rights were not engaged by the trip on September 4th.

[63]         I understand Mr. Ly’s argument to be that he had a privacy interest in the residence, although that is not entirely clear. Although any evidence derived from the attendance at the residence is inadmissible for reasons unrelated to whether what happened there amounted to a violation of Mr. Ly’s s. 8 rights, it is necessary to consider the issue of s. 8 because if established, it is a matter to be considered in the mix when determining whether a s. 24(2) remedy is appropriate. Whether Mr. Ly had a reasonable expectation of privacy falls to be determined on the basis of the principles set out in R v. Edwards, [1996] 1 S.C.R. 128. Cory J. listed some of the factors to be considered at para. 45. They include:

(i)         presence at the time of the search;

(ii)        possession or control of the property or place searched;

(iii)       ownership of the property or place;

(iv)       historical use of the property or item;

(v)        the ability to regulate access, including the right to admit or exclude others from the place;

(vi)       the existence of a subjective expectation of privacy; and

(vii)      the objective reasonableness of the expectation.

[64]         There is no evidence as to whether the accused had a subjective expectation of privacy in the residence. He was, of course, on the property when the search was carried out but that does not, given the nature of the property, lead inexorably to the conclusion that he had a reasonable expectation of privacy in the residence. There is no evidence that he owned the property or that he had any historical connection to it. The only evidence from which it might be inferred he lived there is the presence of his wallet and pants. In all the circumstances, that is sufficient, it seems to me, to establish a reasonable expectation of privacy. There is no question but that the “search” of the property was unreasonable in the sense that it was not authorized by law. Moreover, it is not suggested that the accused consented to it.

[65]         I use the word “search” advisably. I accept Corporal Smart’s evidence that his purpose in returning to the property was to retrieve Mr. Ly’s identification. His conduct before, during and after is consistent with that asserted purpose and inconsistent with an attempt to secure evidence. As I understand his evidence, he did not even photocopy the contents of the wallet, something that is typically done if there is an intention to use it as evidence. In fact, I accept that it was not until he was being cross examined that the idea that what he had done might amount to an evidence-gathering exercise even occurred to him.

[66]         Although it did not occur to Corporal Smart that Mr. Ly’s actions in assisting in the retrieval of his wallet might have evidentiary value, I accept that it is open to the Crown to lead that evidence in an effort to tie Mr. Ly to the residence and, by extension, to the grow operation. It would be evidence in much the same way as the actions of one of the accused in R. v. Larsen, 2002 BCCA 633, were evidence. I pause to note that there is no suggestion the Crown intended to do that. I will, however, deal with its admissibility in the context of s. 24(2).

Should any evidence be excluded under s. 24(2)?

[67]         In summary, the violations that I find have been proven are as follows: a violation of s. 7 in the police service dog’s attack on Mr. Ly; a violation of s. 10(a) in not promptly informing Mr. Ly of the reasons for his arrest in a language he could understand; a violation of s. 9 by not bringing Mr. Ly before a justice of the peace within the time limited by s. 503 of the Criminal Code; and a violation of his s. 8 rights in returning to the property on September 4th. Before turning to the issue of whether a remedy is appropriate, I will deal with the other conduct that Mr. Cobb points to, which does not involve a breach of any of Mr. Ly’s Charter rights but which should be considered in determining whether a remedy is warranted.

[68]         The first of these matters involve two allegations of trespass. Of those, the first relates to the police flyover of the property on August 7, 2008. Constable Collins used the police helicopter so that he could observe and photograph the greenhouses from the air. The greenhouses and all the buildings in the vicinity of them lie to the west of Highway 33. Constable Collins assumed that all of the property associated with the greenhouses was to the west of the highway. He had the helicopter pilot fly near the property while remaining to the east of the highway. It was only sometime later, after he made inquiries through the Regional District, that he realized that the property actually included a small piece of land on the east side of the highway. He said on cross-examination that they may have flown over that section of the property on August 7th. I am not satisfied that it has been proven that the police did, in fact, fly over any portion of the property on August 7th. I am satisfied that they were careful to avoid doing that, and for all the evidence establishes, they may have been successful.

[69]         The second trespass to which Mr. Cobb points did occur. As noted above, it happened on August 14th when Corporal Collins went to the property in the company of Sergeant Jacklin. They went there to take pictures. As between the two officers, Sergeant Jacklin was more familiar with the operation of the handheld GPS unit they had, and as a result, he kept it in his possession most of the time. When the officers parted company at one point, Sergeant Jacklin kept the GPS with him. When they reunited, Corporal Collins expressed concern that he may have inadvertently trespassed onto the property. The handheld GPS unit the officers had was equipped with a feature that, when activated, can be used to recreate the precise route over which the unit is carried. Corporal Collins activated that feature and then attempted to recreate the route that he had just travelled. On returning to the detachment, the officers downloaded the data the handheld GPS had accumulated and were able to create a rough map showing the route they had travelled. This exercise confirmed that Corporal Collins had, in fact, trespassed onto the property. Corporal Collins testified, and the photographs confirm, that there is no fence in the vicinity of the boundary of the property, nor is there anything else on the surface of the land, aside from the corner pin the officers located, to indicate where the boundary is. Although the trespass was confirmed by the track created by the GPS unit, the precise extent of the trespass is not in evidence. Corporal Collins did not measure it. He testified that while he recalled where he went that day, he did not know where the boundary was and thus was unable to measure the length of his trespass on the ground. From the rough map created by the GPS software, some general sense of the extent of the trespass can be gleaned. That evidence, in conjunction with the evidence of Corporal Collins, satisfies me that the trespass was not significant either in terms of dimension (it appears to have been about10 or 20 meters) or duration.

[70]         The second Charter breach that did not involve Mr. Ly’s Charter rights involved another police service dog. Constable Kreed was among the advance group of officers that went to the property on the day in question. He had his police service dog with him. He was with Constable Foidart when the signal was given to enter the property. At the time, they were in the bush hidden from view. When the main group of police officers entered the property, two men began running into the bush and in the direction of Constable Foidart and Constable Kreed. The officers emerged from cover and told the men to lie on the ground which they did. Constable Foidart handcuffed one man but needed Constable Kreed’s handcuffs to secure the second man. Constable Kreed’s dog was on a 20-foot tracking leash. The officer put the leash down and stood on it while he got his handcuffs out and threw them to Constable Foidart. When he did that, his dog broke towards Mr. Wong, the man that Constable Foidart was about to handcuff. The ground that Constable Kreed was standing on was rough gravel and when the dog broke towards Mr. Wong the leash slipped under Constable Kreed’s foot. The dog bit Mr. Wong, who was prone on the ground, on the neck. Mr. Wong had done nothing to provoke the dog. Mr. Wong was taken to the hospital where his wounds were treated. To the extent one can determine from the photographs, his injuries consisted of several puncture wounds to the neck and the back of his head.

[71]         Constable Kreed said there was no explanation for the dog’s behaviour. He did not expect his dog to react in the way that it did. The officer explained that while he thought the dog was securely restrained, he realized after the fact that due to the nature of the ground, the dog was able to pull his leash from under Constable Kreed’s foot. Constable Kreed immediately restrained his dog but, unfortunately, not before Mr. Wong was injured. He said that his dog had never bitten anyone before or since, except when commanded to do so.

[72]         In R. v Spence, 2011 BCCA 280, [2011] B.C.J. No. 1110, Chaisson J.A. reviewed some of the jurisprudence on the cumulative effect of Charter breaches, including R. v. Lauriente, 2010 BCCA 72, 251 C.C.C. (3d) 492. At para. 51 he wrote:

In Regina v. Bohn,2000 BCCA 239, this Court confirmed that consideration of cumulative Charter breaches is appropriate when undertaking a s. 24(2) analysis because it may show a pattern of disregard of the Charter. Bohn concerned a single individual. In Lauriente, the proposition was extended to multiple breaches involving the accused and others...

It is in this context that violations of the Charter rights of others, aside from the accused making a s. 24(2) application, may be relevant.

[73]         While the breach of someone else’s Charter rights may show a pattern of disregard for the Charter by the police, they will not always support such a conclusion. In this case, the trespass was minor and entirely inadvertent. Further, it occurred in spite of police efforts to avoid it. It does not support a conclusion that that the police were either causal or cavalier about the Charter; rather, it supports the conclusion that they were alive to the importance of the rights enshrined in the Charter and attempted to respect them. I will deal with the incident involving Mr. Wong when I address the bite that Mr. Ly received.

[74]         In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and the companion decision of R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, the Supreme Court of Canada revisited the analysis to be applied in assessing whether a remedy under s. 24(2) is warranted. Frankel J.A. summarized the analysis in R. v. Reddy, 2010 BCCA 11, 251 C.C.C. (3d) 151, as follows:

[92]      With respect to the first factor -- seriousness of the breach -- the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion: paras. 71-74. Further, as the Chief Justice and Charron J. noted (at para. 75):

"Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: [citations omitted].

[93]      As for the second factor -- impact of the breach on the accused -- it was observed that "[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive". The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted: paras. 76, 77.

[94]      The last factor -- society's interest in a decision on the merits -- involves the question of "whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion": para. 79. The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial. Although "seriousness of the offence" remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction: para. 84.

[75]         In R v. Côté, 2011 SCC 46, Cromwell J.A. said this about the analysis:

[45]      This Court established a revised approach to the exclusion of evidence under s. 24(2) in Grant. It explained that s. 24(2) was generally concerned with "whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence" (para. 68). As noted earlier, this Court held that three avenues of inquiry were relevant to an assessment of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute...

[47]      The first line of inquiry involves an evaluation of the seriousness of the state conduct. The more serious the state conduct constituting the Charter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked to the conduct. The second line of inquiry deals with the seriousness of the impact of the Charter violation on the Charter-protected interests of the accused. The impact may range from that resulting from a minor technical breach to that following a profoundly intrusive violation. The more serious the impact on the accused's constitutional rights, the more the admission of the evidence is likely to bring the administration of justice into disrepute. The third line of inquiry is concerned with society's interest in an adjudication on the merits. It asks whether the truth-seeking function of [page240] the criminal process would be better served by the admission or exclusion of the evidence. The reliability of the evidence and its importance to the prosecution's case are key factors. Admitting unreliable evidence will not serve the accused's fair trial interests nor the public's desire to uncover the truth. On the other hand, excluding reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public's perspective. The importance of the evidence to the Crown's case is corollary to the inquiry into reliability. Admitting evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the whole of the prosecution's case, but excluding highly reliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to "gut" the prosecution's case.

[48]      After considering these factors, a court must then balance the assessments under each of these avenues of inquiry in making its s. 24(2) determination. There is no "overarching rule" that governs how a court must strike this balance (Grant, at para. 86). Rather, "[t]he evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute"...

[76]         Turning to the specific breaches in this case, the dog bite and the resultant breach of Mr. Ly’s s. 7 or s. 12 rights was the result of carelessness. It was not a deliberate breach, nor even one that I would characterize as reckless. The dog’s behaviour was unexpected. It had no history of aggressive behaviour and gave no indication on the day in question that it was about to bite Mr. Ly. In fact, Constable Ruttan did not realize that his dog was in the vicinity of a prisoner until it was too late. It was careless of him not to but no more than that. The impact of this breach on Mr. Ly was serious. The dog bites were painful. They broke the skin on his right shin in at least three places.

[77]         Corporal Smart took Mr. Ly back to the property in order to establish Mr. Ly’s identity. While the exercise may have generated potential evidence, I accept it was not done for that purpose. I say potential evidence because the Crown has not indicated any intention to call evidence obtained as a result of the exercise. Were it to do so, it is almost inevitable that it would be excluded. I am not called upon to make that determination now. A consequence of returning Mr. Ly to the property was that it delayed his appearance before the justice of the peace, which resulted in a violation of the s. 503 time limits. There was no need for that to have happened. Even accepting that returning to the property was the only way of confirming Mr. Ly’s identity, a proposition that is itself not free from doubt, it could have been done earlier and within the time limited by s. 503. The violation of s. 503 and the resultant Charter breach was careless. In terms of the impact of that breach on Mr. Ly, he was brought before a justice of the peace two-and-a-half hours beyond the outer limit set by s. 503. While it ought not to have happened, measured temporally, and that is the only measure of moment in this situation, it was not particularly significant.

[78]         Failing to inform Mr. Ly of the reasons for his arrest is more serious. It would have been an easy matter for the police to have engaged the translating services of Constable Li as soon as Mr. Ly arrived at the detachment. There is no explanation for why that was not done. There is, however, no evidence that the delay impaired Mr. Ly’s ability to obtain appropriate advice from counsel.

[79]         There is one further aspect of the first two components of the Grant analysis that bears mention. While there is no need for a causal or even a temporal link between the breach or breaches and the evidence whose admissibility is challenged, that remains of some significance on the analysis. As Cromwell J. noted in Côté:

The more serious the state conduct constituting the Charter breach, the greater the need for courts to distance themselves from that conduct by excluding evidence linked to the conduct.

(emphasis added)

Whether viewed collectively or individually, and leaving aside the evidence associated with Mr. Ly’s return to the property to retrieve his identification, there is no connection between the breaches and the evidence the Crown seeks to have admitted.

[80]         As to the third factor, the search of the premises produced reliable evidence in the sense that concept is employed in this framework. It is essential to the Crown’s case. It is evidence unconnected to the Charter breaches. The admission of the evidence would advance the truth seeking function of the criminal trial process, and its exclusion would compromise that function.

[81]         As to the other breaches, I will deal first with the dog bite. I would not characterize it as particularly serious in terms of the first aspect of the Grant analysis. Like Constable Ruttan’s dog, Constable Kreed’s dog did not have a history of biting other than when commanded to do so. His dog gave no advance warning that it would act aggressively on the day in question. Unlike Constable Ruttan, Constable Kreed knew there was a prisoner in the vicinity of his dog, and he took steps to ensure the dog was restrained. His steps proved inadequate. This happened during developing events and falls to be judged in that context. As with Mr. Ly, Mr. Wong should not have been bitten. As with Mr. Ly, Mr. Wong’s injuries are not detailed in the evidence. From the photographs, they appear more serious than Mr. Ly’s. He was bitten on the face and head. His skin was broken in four or five places. As to the trespass, it was not a serious violation either. It did not last long and did not involve a significant intrusion onto the property. It happened in spite of police efforts to avoid it. The privacy interest in a section of property significantly removed from any developed area of the land is also to be factored into the assessment.

[82]         Weighing these factors and taking account of the other conduct to which Mr. Ly points, and looking at the matter from the long-term implications for the criminal justice system, I am not persuaded that the admission of the results of the search of the property on September 3, 2007, would bring the reputation for the administration of justice into disrepute, and I therefore dismiss the application as it relates to that evidence.

“G.M. Barrow, J.”

The Honourable Mr. Justice Barrow