Criminal

The following cases are examples where our firm garnered acquittals for our clients, either by successfully applying to exclude the evidence gathered by the police due to charter violations or by proceeding to trial on the substantive merits.

ON APPEAL

R v. Lai, 2012 BCCA 202

At trial our client was convicted at trial of production of marijuana. Our argument that our client was merely a “found in”, who’s connection to the site of the marijuana grow operation was not proven beyond a reasonable doubt was accepted by the Court of Appeal. In a brief judgment, the Court of Appeal found that the guilt of our client was not proven beyond a reasonable doubt and overturned the conviction as being an “unreasonable verdict”.



R v. Vi, 2010 BCCA 496

After the successful appeal in 2008, our client was once again convicted at the Provincial Court. We appealed a second time, on the grounds that the trial judge erred in refusing to allow us to cross-examine the officer on the contents of the affidavit used to obtain the search warrant. Our appeal was successful once again, and a new trial was ordered. At the next trial, all charges were dropped against our client after we successfully argued the proceedings were subject to an unreasonable delay, contrary to the Charter.



R v. Vi, 2008 BCCA 481

At trial, the Judge found that our client did not have a reasonable expectation of privacy in the property where the grow operation was found, and therefore did not have standing to attack the search warrant on Charter grounds. On Appeal, the Court held that the ruling was an error at law, and that our client had the right to attack the search warrant for Charter violations. The conviction was reversed and a new trial was ordered.



R v. Vu, 2004 BCCA 230

At trial, the Judge refused to hold a voire dire, and, holding that the search of a car on the property was properly included in the scope of the warrant, convicted our client. On appeal, the Court held that the ruling that the search of the car was not authorized by the warrant and that the breach was serious, as the officers involved showed a casual disregard for our client’s rights. The appeal was allowed and a new trial was ordered.



SUBSTANTIVE ACQUITTALS

R v. Nguyen, June, 2013

Our client was charged with possession for the purposes of trafficking after being observed driving a vehicle in what appeared to be a dial-a-dope operation. After a voire dire, the Court held that our client’s charter rights were violated, but declined to exclude the evidence obtained. Despite the evidence being admitted, our client was acquitted on the basis that the crown had not proven that he had knowledge of any drugs and was not proven to be a party to the crime.



R v. Tran, 2012

A meth lab was found in a house owned by our client. The Court found that the manner of entry by the fire services and RCMP led to problems showing what materials were where on entry to the premises. This uncertainty raised a reasonable doubt that any of the materials involved in the production of methamphetamine, or the lab itself, was in plain view. As it could not be proven that our client knew of the existence of the meth lab in the premises, he was acquitted of all counts.



R v. Nguyen, 2009 BCPC 343

A marijuana grow operation was found in a house rented by our client after police attended to a report of a break and enter. Though the house was rented by our client, there was no fingerprint evidence linking him to the grow operation in the basement and no evidence that showed our client was living there at the time. The Court found that the circumstantial evidence was insufficient to convict our client and he was acquitted.



R v. Truong, 2008 BCPC 73

Our client was charged with refusing to comply with an approved screening device (refusing to blow into a breathalyzer). The Court found that an odour of liquor and glassy eyes was insufficient grounds for the police to suspect a person was over the legal limit of alcohol consumption. As the demand was not lawful, the refusal did not constitute a crime. Our client was acquitted.



R v. Do & To, 2006 BCPC 385

Our clients were found in a house with a 308 plant marijuana grow operation. Our clients had documentation linking them to the residence, and were clearly living in the house. Despite finding the circumstances suspicious, at trial the Judge found that, in part due to sloppy police work, he did not have the evidence before him to convict our clients. Both clients were acquitted.



R v. Tran, 2006 BCSC 1504

Police attended at a residence after a 911 call reporting an assault. Upon attendance, our client answered the door and the RCMP smelled bulk marijuana coming from the residence and located a very substantial grow operation. Mr. Solomon argued that our client had merely spent the previous night in the premises, and was not in control of the grow operation. The Court found that our client must have been aware of the presence of a grow operation; however, there was insufficient evidence to show that he was in control of the grow operation. Our client was acquitted on both counts.



CHARTER CASES

R v. Pham & Badilla, unreported, October 22, 2008, Vancouver Registry, 182476

Police noticed a car idling on the roadside and learned there was no valid insurance on the car. They pulled over our clients and one of the officers smelled a strong smell of fresh bulk marijuana coming from the car. Our client informed the police, when asked, that there was marijuana in the car. The Court held that the initial investigative detention of our clients quickly became an investigation into an suspected offence. The Court held that our client’s charter rights were breached as they were not told they were under investigation for marijuana offences and were not given their charter rights until after the car was searched. Breaches of s. 8 and s. 10(a) and (b) were found and the evidence was excluded.



R v. Mak, 2005 BCPC 485

Police executed a search warrant on our client’s rental business apartment. The warrant was challenged on the grounds that it did not provide a sufficient basis to believe that there was a grow operation in our client’s apartment. Additionally, we submitted that our client’s s. 10 rights were violated when he was questioned prior to receiving the standard Charter warning. The Court found that the warrant was invalid and that the manner of entry of the police, with guns drawn, was unreasonable in this case. The Court found that the multiple breaches, combined with the manner of entry and lack of a valid warrant mandated that the evidence be excluded.



R v. Nguyen, 2004 BCPC 465

Our client was arrested leaving a residence that the police suspected was stealing hydro. After his arrest, the police seized keys to the residence from our client and obtained a search warrant for the residence. The Court held that the arrest of our client was unlawful, the seizure of the keys was unlawful and the police additionally violated our client’s right to counsel. The keys linking our client to the house were excluded from evidence, as was his statement to police.



R v. Luu, 2002 BCPC 67

A search warrant was granted to search our client’s residence based on an anonymous tip and the observations of an officer who had surveilled the premises. We challenged the search warrant on the grounds that it did not include reasonable grounds to believe a marijuana grow operation was present at the premises. The Court held that the search warrant was invalid and that entry into the premises was a breach of our client’s s. 8 Charter rights. The breach was found to be serious, and the evidence of the grow operation was excluded.



R v. Nguyen, 2000 BCPC 103

Police entered our client’s business residence without a warrant, to search for stolen property and our client’s son, who was wanted by the police. Police observed our client throw a bag of marijuana out the back door. At trial, the Crown conceded the search was a violation of our client’s rights, but submitted that the evidence (the bag of marijuana) should be admitted into evidence nonetheless. The Court held that the violation was serious and excluded the evidence.



APPLICATIONS

R v. Wu - unreported, May 24, 2012, Vancouver Registry, 202364
Successful application for production of a Vancouver Police Constable’s disciplinary record in relation to an unlawful search and seizure performed by him. Production of the record was strongly contested. Production was granted, as the records were found to have potential relevance to the upcoming Charter application.