VANCOUVER – The British Columbia Court of Appeal has overturned ten drug trafficking and firearms convictions against Kien Trung Pham and ordered a new trial, finding that the trial judge made a critical legal error in analyzing the role courier company employees played in a police investigation1. The appeal court concluded that the judge failed to apply the correct legal test to determine if the employees of a Loomis Express depot in Nanaimo were acting as agents of the state when they set aside packages containing methamphetamine for the RCMP.
To read our article regarding the original case that gave rise to this appeal, click here.
The case began on May 7, 2019, when officers with the Canada Border Services Agency intercepted two packages at the Vancouver International Airport. The packages, which were destined for New Zealand, were found to contain methamphetamine. An investigation later uncovered a fingerprint belonging to Mr. Pham inside one of the packages. The CBSA notified the Nanaimo RCMP, as the packages had been shipped from a Loomis Express depot in that city.
RCMP investigators visited the Loomis depot and spoke with employees. They learned that a man named William McGuire had shipped the intercepted packages, as well as several similar ones previously, on behalf of a fictitious company called Essential Nutrition Wholesale. Following this police visit, the nature of the investigation changed significantly. On May 15 and 17, 2019, Mr. McGuire returned to the Loomis depot to ship two more packages to New Zealand. Following what the appeal court noted were instructions from the police, Loomis employees processed the transactions as normal but then secretly set the packages aside instead of sending them into the mail stream. The RCMP seized the packages from Loomis without a warrant and later, with a warrant, confirmed they contained several kilograms of methamphetamine.
Surveillance of Mr. McGuire revealed his connection to Mr. Pham. After dropping off the package on May 15, Mr. McGuire was seen getting into a Mercedes registered to Mr. Pham. After the May 17 delivery, he entered a Ford F-150 pickup truck, also registered to Mr. Pham. Police had also observed Mr. Pham driving both vehicles.
The investigation culminated on May 23, 2019. Mr. McGuire arrived at the Loomis depot again to ship another package while RCMP officers conducted surveillance from inside the building. As before, the package was processed and then withheld for police. When Mr. McGuire left the depot, he got into a silver Ford F-150 driven by Mr. Pham. The RCMP intercepted the truck and arrested both men. A search of Mr. Pham incident to his arrest revealed $4,750 in cash and an invoice for the package he and Mr. McGuire had just dropped off. A search of the truck uncovered four mobile phones, waybills for previously seized packages, and keys to a suite in Nanaimo located at 1805 Summerhill Place. The package from that day was also seized and found to contain nearly two kilograms of methamphetamine.
Armed with this evidence, the RCMP obtained search warrants for the Summerhill Place suite and Mr. Pham’s primary residence. The search of the suite uncovered 177 grams of fentanyl, 28 grams of cocaine, two semi-automatic handguns, and a pump action shotgun.
At his trial in the Supreme Court of British Columbia, Mr. Pham’s defence argued that much of the evidence against him should be excluded. His lawyers claimed it was obtained in violation of his rights under the Canadian Charter of Rights and Freedoms, particularly the right to be free from unreasonable search and seizure. The defence contended that the Loomis employees were acting as state agents when they intercepted the packages on May 15, 17, and 23, making the warrantless seizures from the depot unconstitutional. This, they argued, tainted all subsequent evidence, including the items found during his arrest and the searches of the residences.
The trial judge dismissed most of these arguments. He found that the Loomis employees were not state agents. In his ruling, he stated that the employees were “simply going about their normal business, which included, of course, refusing to ship illegal goods once they became aware of the likelihood that they had been doing so unwittingly.” He characterized their actions as those of “reasonable, responsible and self-interested corporate citizens” and concluded that there was nothing unconstitutional about police “enlisting the assistance of members of the public in the investigation, detection and prevention of crime.” He ruled the evidence was admissible and, based on the totality of that evidence, found Mr. Pham guilty of ten offences, describing him as the “master of the operation.”
However, the Court of Appeal found that the trial judge’s analysis of the state agent issue was flawed. In a unanimous decision written by Madam Justice DeWitt-Van Oosten, the court determined that the trial judge applied the wrong legal test and misapprehended crucial evidence. The correct legal question, the court explained, was not whether it is generally permissible for police to enlist public help. Instead, the judge should have asked whether the Loomis employees’ actions “would have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents.”
The appeal court pointed to significant evidence from the trial that the judge failed to consider in his reasons. The Loomis operations supervisor, Sean Roden, testified unequivocally that police had instructed him and his staff to set the packages aside. He stated that the police told them to process the transactions normally so as not to alert the shipper, to take photographs of the suspect and his vehicle if possible, and to notify the RCMP. Mr. Roden testified that these actions were “outside of [their] regular job description” and were done specifically “because of the RCMP’s instruction.” He and another employee, Margo Erhart, even developed a code phrase, “the package for Roden is in holds,” to covertly signal when the suspect was at the counter. Ms. Erhart also testified that if the police had not become involved, the packages would have remained in the mail stream.
This testimony from the employees conflicted with the evidence of the RCMP officers, who testified that they did not give specific instructions and were careful not to make the employees into agents. The appeal court found that the trial judge failed to resolve these profound contradictions or grapple with the evidence suggesting the employees were acting under police direction. Justice DeWitt-Van Oosten wrote that the judge’s conclusion that the employees were “simply going about their normal business” failed to account for their testimony that they would not have refused to ship the packages or taken covert surveillance measures without police involvement.
The court explained that this error was material and could have a significant “downstream” impact on the entire case. If, on a new trial, the Loomis employees are found to have been acting as state agents, the initial seizure of the three packages from the depot could be ruled an unconstitutional, warrantless seizure by the state. Such a finding could invalidate the grounds for Mr. Pham’s arrest, the search of his truck, and the warrants used to search the two residences, as information from the packages was used to justify those further investigative steps.
Given the nature of the error, the Court of Appeal declined to conduct a fresh analysis of the evidence itself. Instead, it determined that the appropriate remedy was to set aside all ten convictions and order a new trial where a judge can properly assess the evidence, apply the correct legal test for state agency, and determine the constitutional validity of the entire police investigation that followed.
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