R. v. Chen (I.Y.Y.) et al., (2004) 190 Man.R.(2d) 286 (CA)

• Judge: Philp, Kroft and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 30, 2004
• Jurisdiction: Manitoba
• Citations: (2004), 190 Man.R.(2d) 286 (CA);2004 MBCA 194

R. v. Chen (I.Y.Y.) (2004), 190 Man.R.(2d) 286 (CA);

    335 W.A.C. 286

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. DE.027

Her Majesty The Queen (respondent) v. Ingrid Yin Yu Chen (accused/appellant)

(AR 04-30-05878)

Her Majesty The Queen (respondent) v. Emilio Gonzales Guevarra (accused/appellant)

(AR 04-30-05897)

(2004 MBCA 194)

Indexed As: R. v. Chen (I.Y.Y.) et al.

Manitoba Court of Appeal

Philp, Kroft and Hamilton, JJ.A.

December 17, 2004.

Summary:

The accused Chen, a lawyer, and the accused Guevarra, a realtor, were convicted at trial before a judge sitting alone of conspiring "to bring Ferdinand Gutierrez unlawfully into the United States of America contrary to the Immigration and Nationality Act, Title 8 United States Code, ss. 1324 and 1325" contrary to s. 465(1)(c) and 465(3) of the Criminal Code. Chen was sentenced to a term of imprisonment of one year, to be served in the community, and Guevarra was granted a conditional discharge. The accused appealed their convictions and Chen appealed against sentence.

The Manitoba Court of Appeal dismissed the appeals.

Aliens - Topic 5074

Offences - Illegal entry - Assisting illegal entry - A trial judge found the accused Chen, a lawyer, and the accused Guevarra, a realtor, guilty of conspiring to illegally assist one Gutierrez to cross the United States border - The accused appealed arguing that they were not charged with "assisting" Gutierrez in entering the United States illegally; rather they were charged with a conspiracy "to bring" him unlawfully into the United States - They argued that "bringing" was an essential element of an offence under s. 1324 of the Immigration and Nationality Act, Title 8, United States Code and that the finding of the trial judge did not correspond with that requisite element (i.e., one of the essential ingredients of the charge was not established) - The Manitoba Court of Appeal rejected this ground of appeal - See paragraphs 19 to 38.

Aliens - Topic 5210

Offences - Sentences - Smuggling illegal aliens - The accused Chen, a lawyer, and the accused Guevarra, a realtor, were convicted of conspiring to illegally assist one Gutierrez to cross the United States border - Chen was sentenced to a term of imprisonment of one year, to be served in the community, and Guevarra was granted a conditional discharge - Chen appealed against sentence, arguing that it was too harsh and excessive and that the appeal court should impose a conditional discharge - The Manitoba Court of Appeal dismissed the appeal and refused to interfere with the sentence imposed by the trial judge - See paragraphs 39 to 41.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused Chen, a lawyer, and the accused Guevarra, a realtor, were convicted at trial before a judge sitting alone of conspiring to illegally assist one Gutierrez to cross the United States border - The accused appealed, arguing that the trial judge did not properly direct himself as to the unsavoury nature of the Crown's principal witness, Gutierrez (i.e., the judge erred in not giving himself a Vetrovec warning) - The Manitoba Court of Appeal dismissed the appeal, holding that there was no merit in this ground of appeal - The court noted that a Vetrovec warning was a matter of a trial judge's discretion and was not required in all cases of unsavoury witnesses - See paragraphs 16 to 18.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications - Application for - Evidence in support - The accused Chen, a lawyer, and the accused Guevarra, a realtor, were convicted at trial before a judge sitting alone of conspiring to illegally assist one Gutierrez to cross the United States border - The accused appealed, arguing that the trial judge erred in admitting evidence of the interception of their private communications and in failing to find that their s. 8 Charter rights were violated - The trial judge ruled that the affidavits met the prerequisites for granting authorizations prescribed by the Criminal Code, i.e., that there was reliable evidence that might reasonably be believed on the basis of which the authorizations could have issued - The Manitoba Court of Appeal dismissed the appeal, holding that there was no basis for interference with the trial judge's decision that the authorizations were valid and that the interceptions did not violate the accused's s. 8 Charter rights - See paragraphs 10 to 15.

Cases Noticed:

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 10].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48 (C.A.), refd to. [para. 10].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 12].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 16].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [para. 17].

Bolduc v. Quebec (Attorney General) et al., [1982] 1 S.C.R. 573; 43 N.R. 185, refd to. [para. 23].

United States v. Sanchez-Vargas (1989), 878 F.2d 1163 (9th Cir.), refd to. [para. 26].

United States v. Anaya (1980), 509 F. Supp. 289 (S.D. Fla.), refd to. [para. 26].

United States v. Zayas-Morales (1982), 685 F.2d 1272 (11th Cir.), refd to. [para. 26].

United States v. Washington (1973), 471 F.2d 402 (5th Cir.), refd to. [para. 26].

United States v. Ramirez-Martinez (2001), 273 F.3d 903 (9th Cir.), refd to. [para. 26].

United States v. Aguilar (1989), 883 F.2d 662 (9th Cir.), cert. denied 111 S. Ct. 751, refd to. [para. 26].

United States v. Raghunandan (1984), 587 F. Supp. 423 (W.D. N.Y.), refd to. [para. 33].

Authors and Works Noticed:

Phelps, William G., Annotation, Validity, Construction and Application of §§ 274(a)(1)(A)(i) and 274(a)(2) of Immigration and Nationality Act (8 U.S.C. § 1324(a)(1)(A)(i) and (a)(2)), Making It Unlawful to Bring Alien to United States, 136 A.L.R. Fed. 511, para. 5 [para. 26].

Counsel:

G.G. Zazelenchuk, for the appellants;

P.L. Jensen, for the respondent.

These appeals were heard on September 30, 2004, before Philp, Kroft and Hamilton, JJ.A., of the Manitoba Court of Appeal. Philp, J.A., delivered the following judgment for the court on December 17, 2004.