Introduction
[1] Following a trial in the British Columbia Supreme Court, the appellant, Kien Trung Pham, was found guilty of ten offences involving illicit drugs and firearms: four counts of trafficking in methamphetamine; two counts of possession for the purpose of trafficking (fentanyl and cocaine, respectively); two counts of possession of a prohibited firearm; and two counts of possession of a firearm without a licence.
Background
Evidence at trial
[4] On May 7, 2019, officers with the Canadian Border Services Agency (“CBSA”) intercepted two packages at the Vancouver International Airport that were destined for New Zealand and found to contain methamphetamine. Mr. Pham’s fingerprint was eventually lifted from a plastic container in one of those packages.
[5] The CBSA shared the results of its investigation and the intercepted packages with the Royal Canadian Mounted Police (“RCMP”) in Nanaimo. The two packages had been shipped from a Loomis Express depot in Nanaimo (“Loomis”). The RCMP made inquiries of employees at the depot and learned that similar packages had previously been shipped from the same location. Most of them were delivered to Loomis by someone named William McGuire. They had been shipped on behalf of Essential Nutrition Wholesale, which was subsequently discovered to be a fictitious company.
[6] After the police spoke with the Loomis employees, Mr. McGuire delivered further packages on May 15 and 17, 2019. These packages were also destined for New Zealand. They were processed by Loomis employees at the counter in accordance with their usual procedure, but then set aside and seized by the RCMP without a warrant on May 16 and 17, respectively. The packages were subsequently searched with a warrant and found to contain multiple kilograms of methamphetamine.[Emphasis by PJM]
[7] After the May 15 delivery, Mr. McGuire was seen by Loomis employees to get into the passenger seat of a Mercedes determined to be registered to the appellant. After the May 17 delivery, he entered the passenger seat of a silver Ford F-150 pickup truck. During surveillance, the RCMP saw the appellant driving the Mercedes, as well as a silver truck consistent with the one entered by Mr. McGuire. The truck was registered to the appellant.[Emphasis by PJM]
[8] On May 23, 2019, Mr. McGuire delivered another package to Loomis. It was processed, withheld from the regular mail stream, and provided to a police officer. The RCMP were conducting surveillance from within Loomis at the time. Mr. McGuire left in a silver Ford F-150 driven by the appellant. The RCMP intercepted the vehicle and both men were arrested. The appellant had $4,750 cash in his possession….
First ground – reasonable expectations of privacy
[31]….The judge did not rule that the appellant had no reasonable expectation of privacy in the packages delivered on May 15, 17, and 23….
[32] To the contrary, his analysis of the appellant’s s. 8 challenges to the May 15, 17, and 23 packages assumed that Mr. Pham had standing to advance a Charter claim….
Second ground – Loomis employees as state agents
[35] The second ground of appeal focuses on the interaction between the RCMP and the Loomis employees when those employees set aside packages that were delivered by Mr. McGuire on May 15, 17, and 23. These packages were later seized by the police and their contents were adduced as evidence at trial.
Judge’s conclusion re: agency relationship
[36] In the first voir dire, the judge declined to find an agency relationship between the police and the Loomis employees, concluding that “at most”, the RCMP asked the employees to “temporarily hold back the packages” that the police had authority to seize under s. 489(2) of the Criminal Code:
[19] As for the May 15, 17 and 23, 2019 packages, there is nothing at all wrong or unconstitutional with the police enlisting the assistance of members of the public in the investigation, detection and prevention of crime. As I conceive it, all the police did in this case was to communicate to Loomis employees that their service was being abused by criminals to send highly illegal narcotic drugs across the world. The Loomis employees were understandably concerned by this news and motivated to put a stop to it. The RCMP asked the Loomis employees to notify them if “William” returned with more “Essential Nutrition Wholesale” packages, to process each transaction as usual, and to set aside such packages for RCMP retrieval.
[20] In my view, there is nothing wrong with any of this….
Evidence on the voir dire
[43] To resolve this ground of appeal, it is necessary to review some of the evidence on the first voir dire, beginning with the Loomis employees. The excerpts are lengthy, but necessary to fully appreciate the factual context for the judge’s ruling.
Legal principles on state agency
[84] The Supreme Court of Canada’s decision in R. v. Buhay, 2003 SCC 30, is a leading authority on the legal test for state agency for purposes of a s. 8 Charter analysis. In that case, a private security guard smelled a strong odour of marijuana coming from a bus depot locker. An employee of the bus line opened the locker. The guard removed a duffel bag, opened it, and found marijuana. The items were placed back in the locker and the police were called. The bus line had a policy authorizing locker entry if an employee believed the locker contained something dangerous or was “giving off a bad odour or something like that”: at para. 8.
[85] Two police officers responded to the call and were directed to the locker. They too smelled marijuana. The bus line employee opened the locker for them. One of the officers seized the marijuana and placed it in the back of his police vehicle. He did not have a warrant.
[86]….To determine the existence of an agency, a court must ask: “would the exchange between the accused and the [alleged agent] have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?”: at para. 25, emphasis added, citing Broyles.[Emphasis by PJM]
[87] In Buhay, the private security guards did not meet the test for state agents. The evidence was clear that they “acted totally independently of the police in their initial search”. Their relationship with the police developed after they searched the locker. They “started an investigation on their own initiative, without any instructions or directions from the police”: at para. 29, emphasis added. The Supreme Court went on to hold that:
30 Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens to participate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter. Rather, the intervention of the police must be specific to the case being investigated … In the case at bar, there is nothing in the evidence which supports the view that the police instructed the security guards to search locker 135 and therefore the security guards cannot be considered state agents.
[Emphasis added, internal citations omitted.]
See also R. v. Johal, 2015 BCCA 246 at paras. 37, 41.
[88] M. (M.R.), cited earlier, is another Supreme Court of Canada decision commonly referred to on the issue of state agency. In that case, the Court considered whether a high school vice-principal acted as a state agent when he searched a 13-year-old student and found marijuana in his possession.
[89] The vice-principal was told a particular student was selling drugs on school property. He saw the student at a school dance and called the police, asking that an officer come to the school. He then asked the student and a friend to come to his office. They were each asked if they possessed drugs and the vice-principal said he was going to search them. At this point, the police officer arrived. He spoke with the vice-principal, identified himself to the students, and sat down. The vice-principal conducted the search. He discovered marijuana on one of the students and gave it to the officer, who promptly told the student he was under arrest: at para. 6.
[90] A Supreme Court majority found that the vice-principal did not act as a state agent when he searched the student. The vice-principal knew that if drugs were found, it would be a criminal matter. He called the police before he engaged in the search, and he allowed an officer to be present while the search unfolded. When drugs were located, they were immediately handed over to the police. The viceprincipal had clearly “cooperated” with the police: at para. 27. However:
28….There is no evidence of an agreement or of police instructions to [the vice-principal] that could create an agency relationship.
29 … it must be determined whether the search of the appellant would have taken place, in the form and in the manner in which it did, but for the involvement of the police….
….There is nothing in the evidence to suggest that the vice-principal initiated the search or conducted it differently because of police intervention. It is thus apparent that the vice-principal was not acting as an agent of the police.
[91] R. v. Dorfer, 104 C.C.C. (3d) 528, 1996 CanLII 10214 (B.C.C.A.), a decision from this Court, offers an example of when a state agency has been found to exist. In Dorfer, the appellant was convicted of two incidents of breaking and entering. The investigating police were in search of DNA evidence that would connect him to one or both scenes. The appellant was in custody and the police became aware he needed dental care. They decided to obtain dental material that would allow for forensic analysis: at para. 8. Writing for this Court, Justice Macfarlane explained what happened next:
[9] The police approached the deputy director of the prison where the appellant was being held and asked for information concerning his dental treatment. The appellant had already been to the dentist to have a preliminary examination and had made a further appointment. The prison official reluctantly informed the police of the time and place where the appellant would have further dental treatment. The appellant was unaware that this information had been provided to the police.
[10] The dental appointment was scheduled for September 20, 1993. Before the appointment the police met with the dentist and his assistant, and arranged that the dentist and his assistant would set aside any material with Dorfer’s bodily substances on it. The police instructed the dentist and his assistant that otherwise the dental procedure should be conducted in a normal fashion.
[11] After having made these arrangements the police applied for and obtained a search warrant.
[12] During the dental procedure on September 20, 1993, the dentist and his assistant set aside material which contained blood and saliva residue.
[13] The blood and saliva was examined and compared with the semen sample taken from [one of the victims]. The samples were matched …
[Emphasis added.]
[92] The trial judge in Dorfer concluded that the dentist and his assistant acted as state agents in setting aside material containing the appellant’s bodily substances. This Court agreed: at para. 30. The Court went on to hold that the “warrantless seizure” of bodily substances by the dentist could not be “converted into a lawful seizure by obtaining a warrant after having made arrangements with state actors to acquire possession of material so it can be seized under a warrant”: at para. 34, emphasis added. As per Justice Macfarlane:
[40] In my opinion, the preservation of the dental residue by state actors for law enforcement purposes and the seizure of the residue by the police violated the rights of the appellant under s. 8 of the Charter.
[Emphasis added.]
[93]….As aptly noted in R. v. Norgan, 2024 BCPC 187, relevant factors to consider may include:
[36] … i) whether there was a causal connection between the actions of the police and the actions of the third party; ii) whether the third party was acting under their own independent authority or initiative; iii) the degree and nature of any collaboration and cooperation between the police and third party; iv) whether there were direct or implied instructions provided by the police to the third party; and v) the motives of the police and the third party.
This is not an exhaustive list. The state agent inquiry is individualized and fact intensive.[Emphasis by PJM]
Application of principles to this case
[97] First, I agree with the appellant that the judge did not make the legal inquiry mandated of him in assessing whether the Loomis employees were state agents. Rather than ask whether the employees would have conducted themselves the way they did but for the involvement of the police, the judge asked whether there is anything wrong (generally) with the police “enlisting the assistance of members of the public in the investigation, detection and prevention of crime”: at paras. 19, 20, 22. That is not the proper focus of a state agency analysis, which must examine the entirety of the circumstances surrounding the interaction between the police, alleged agent(s), and the suspect, as borne out by the evidence, and then apply the Buhay and M. (M.R.) legal framework to the assessed facts. The judge’s admissibility ruling….
….,the reasons reveal the application of an approach to the agency issue that does not align with the proper legal test. A failure to identify and apply the right legal test to the underlying facts is an error of law and reviewed on a standard of correctness: R. v. Crocker, 2009 BCCA 388 at para. 55, citing R. v. Shepherd, 2009 SCC 35 at para. 20.
[98] Second, and more critically, I also agree with the appellant that the judge misapprehended the record by failing to consider evidence relevant to the agency issue: R. v. Morrissey, 22 O.R. (3d) 514, 1995 CanLII 3498 (O.N.C.A.); R. v. Osinde, 2021 BCCA 124 at para. 17. This evidence was material to resolving the agency claim under s. 8, which formed an integral part of the overall Charter challenge to critical parts of the evidentiary foundation underlying the Crown’s case.
[99] For purposes of the agency analysis, the judge found as a fact that the RCMP asked the Loomis employees to “set aside” packages delivered by Mr. McGuire under the name of Essential Nutrition Wholesale “for RCMP retrieval”: at paras. 19, 20. On appeal, the Crown accepts that such is the case and says this finding was “reasonable on the facts” (respondent’s factum at paras. 53–54). To make this finding, the judge must have rejected the evidence of Cst. Cathro and Cpl. Lloyd, both of whom testified that they made no such request.
[100] Having reached this conclusion (consistent with the evidence of Mr. Roden and Ms. Erhart), there were other parts of the employees’ testimony that were highly relevant to the agency issue and required close judicial analysis to fully assess whether what occurred in this case was “[v]olunteer participation in the detection of crime by private actors” or “sufficient direction by the police to trigger the application of the Charter”: Buhay at para. 30, emphasis added.[Emphasis by PJM]
[101] For example, as set out above, Mr. Roden testified that not only were the Loomis employees asked to withhold packages delivered by Mr. McGuire and to notify the police, but they were also asked to take photographs and obtain a vehicle licence number and told to conduct themselves in a way that would not raise Mr. McGuire’s suspicion. Mr. Roden said they did all these things because the police asked them to. He also testified that these things were “outside [their] regular job description” (emphasis added). He said the cooperation between Loomis and the RCMP was “high”, at least in part, because there was “no reason for [Loomis] to go against what the RCMP [was] asking [the employees] to do” (emphasis added).[Emphasis by PJM]
[102] Ms. Erhart similarly testified that but for the involvement of the RCMP, the packages delivered by Mr. McGuire would have remained in the mail stream. Furthermore, she would not have divulged details about past shipments. Mr. Leyland initially had a different version of events, testifying that the Loomis employees independently became suspicious about the packages after opening one of them and that he was the individual who suggested the packages be held back. He also said he took photographs of his own accord. However, his suggestion that the Loomis employees opened one or more of the packages found no support elsewhere in the evidence. In cross-examination, Mr. Leyland acknowledged that the things he did in relation to this matter likely took place after he had spoken to Mr. Roden. It was Mr. Roden who interacted with the RCMP on May 15, and he testified that he gave instructions to the other employees.[Emphasis by PJM]
[103] I take no issue with the judge’s finding that, having learned of the content of the packages intercepted by the CBSA, the Loomis employees were “concerned by this news and motivated to put a stop to it”: at para. 19. However, his finding that in conducting themselves as they did, the employees “were simply going about their normal business, which included, of course, refusing to ship illegal goods” (at para. 21), fails to account for their evidence that but for the involvement of the RCMP they would not have refused to ship the packages delivered by Mr. McGuire, developed a plan to covertly intercept and retain those packages for police retrieval, divulged otherwise private information about previous shipments, attempted to make observations that would assist the police with identifying the shipper(s), or had police surveillance operating from within the depot.
[104] Unlike the situation in Buhay, the evidence in this case was not that the Loomis employees acted completely independently from the police. Nor did their relationship with the police develop after they had already started withholding packages. Until their interaction with the RCMP on May 15, they were processing Mr. McGuire’s packages in the ordinary course. In Buhay, the private security guards began an “investigation on their own initiative, without any instructions or directions from the police”: at para. 29. On the face of it, the same cannot be said here.[Emphasis by PJM]
[105] This case also appears to be materially different from M. (M.R.). There, the Supreme Court found “no evidence of an agreement or of police instructions to [the vice-principal] that could create an agency relationship”: at para. 28. There was no evidence the vice-principal “initiated the search” of the accused student or “conducted it differently because of police intervention”: at para. 29. Again, on the testimony of the Loomis employees in this case (not rejected by the judge), the same cannot be said here.
[106] In my view, the evidentiary record before us is arguably more closely aligned to the circumstances in Dorfer, in which the police arranged with the dentist and his assistant beforehand to set aside material that might contain the suspect’s bodily substances, but to otherwise conduct themselves in a “normal fashion”: at para. 10. In Dorfer, this Court found the dentist and his assistant were state agents.
[108] The evidentiary foundation relevant to the agency issue was one that had to be grappled with. There were inconsistencies between the testimony of the Loomis employees, inconsistencies between the testimony of the police officers, and these two groups of witnesses had profoundly different perspectives on the nature of their interaction and the extent to which police instructions formed part of that interaction. Without assessing the whole of this evidence and making the necessary findings, I fail to see how it could be determined whether the withholding of packages from shipment for subsequent seizure by the RCMP and providing police with additional information that assisted in their investigation “would have taken place, in the form and in the manner which it did, but for the involvement of the police”: M. (M.R.) at para. 29.
[109] Accordingly, I would accede to the appellant’s second ground of appeal.
[112] If the Loomis employees withheld and took possession of the third, fourth, and fifth packages as state agents, s. 8 of the Charter was engaged, and the judge would have had to determine whether those seizures were authorized by law….
Disposition
[115] For the reasons provided, I would allow the appeal in CA49722 and CA49740 and order a new trial in each based on reversible error in the judge’s analysis of whether the Loomis employees were state agents for purposes of challenging evidence under ss. 8 and 24(2) of the Charter.
[116] Appeal file CA49740 involves an appeal from four convictions for firearm offences that arose out of the same circumstances at issue in the trial underlying CA49722. The appellant was found guilty of the additional four offences based on the factual findings reached in that trial. The two appeal files are inextricably linked; consequently, the same result must ensue for both.
