R. v. Moore et al. Date:, 2013 BCPC 131

Citation: R. v. Moore et al. Date: 20130227 2013 BCPC 0131 File No: 84998-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WESLEY ALBERT MOORE, MATTHEW ALBERT CHARLES JESSON and RANDY MICHAEL GOUGH ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE DYER Counsel for the Crown: A. Smith Counsel for Accused Moore : L. Kompa Counsel for Accused Gough : J. Thorhaug Appearing as agent for J. Conroy, Counsel for the Accused Jesson : L. Kompa

Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: June 18, 19, 20, September 4, 5, October 12, December 11 and 17, 2012 Date of Judgment: February 27, 2013 [ 1 ] THE COURT: The three accused persons before the Court, Mr. Gough, Mr. Jesson, and Mr. Moore, are jointly charged on an eight-count Information with inter alia unlawfully producing and unlawfully possessing marihuana for the purposes of trafficking, contrary to s. 7(1) of the Controlled Drugs and Substances Act , and theft of electricity, contrary to s. 326(1) (

a) of the Criminal Code of Canada . [ 2 ] The charges are said to have arisen from events which occurred on September 17th, 2010 when at or about 8:30 a.m. the Ridge Meadows RCMP executed a search warrant granted on September 16th, 2010 by a judicial justice of the peace on premises located at 9553 285th Street in Maple Ridge (hereinafter referred to as "the residence"), and shortly after entry therein, located some 719 plants said to be marihuana in the basement together with various accoutrements. [ 3 ] At about 10:30 a.m., a B.C.

Hydro representative attended and located what was described as a Hydro by-pass in a crawlspace in the residence. [ 4 ] The trial commenced before me on June 18th, 2012. Early on in the trial, counsel for Mr. Jesson and Mr. Moore indicated that there were certain Charter issues that they wished to raise. Mr. Thorhaug, acting for Mr. Gough, said that he was raising none. [ 5 ] These Charter issues arising under ss. 8 and 9 of the Charter are as follows: 1. Were Mr. Moore's and Mr. Jesson's s. 8 Charter rights to be free from unreasonable search and seizure infringed or denied?

Do the requisite grounds exist for the issuance of the search warrant on September 16th, 2010?

Section 8 provides that everyone has the right to be secure against unreasonable search or seizure. 2. Did the manner in which the RCMP executed the search warrant on September 17th, 2010 violate Mr. Moore's and/or Mr. Jesson's s. 8 Charter rights? 3. Were Mr. Moore and/or Mr. Jesson arbitrarily detained contrary to s. 9 of the Charter ?

Section 9 provides that everyone has the right not to be arbitrarily detained or imprisoned. 4. If Mr. Moore's and/or Mr.

Jesson's s. 8 or s. 9 Charter rights were infringed or denied, should evidence be excluded pursuant to s. 24(2) of the Charter ? [ 6 ] It is trite law to state that the onus and burden of proof in establishing an alleged Charter breach is on the defence and proof must be on the balance of probabilities. [ 7 ] A voir dire was declared at the outset of the trial before any witness testified for purposes of my dealing with the Charter issues. [ 8 ] The Crown called seven witnesses, all RCMP officers on the voir dire. [ 9 ] Constable Russell prepared and swore the Information to Obtain ("ITO") in this matter, sworn on September 16th, 2010 (see Exhibit B on voir dire). [ 10 ] I intend to deal with the relevant evidence first, then consider each Charter issue in turn and outline the submissions made by Crown and defence with respect to same and render my decision on same before moving on in the same fashion to deal with the next alleged Charter breach. [ 11 ] It will be convenient to summarize the evidence relating to the first alleged Charter breach and deal with facts relating to the manner of the search and whether or not a de facto unlawful arrest occurred later in my reasons. [ 12 ] I turn now to the evidence on the first alleged Charter breach. [ 13 ] Constable Russell swore in the ITO that he had reasonable grounds to believe that a theft of telecommunication service, electricity, contrary to s. 326(1) (

a) of the Criminal Code was being committed in essence as outlined in his affidavit (Appendix A). He said he had reasonable grounds to believe that this offence was being committed (see para. 5 and his conclusion). Paragraph 6 in his ITO (Appendix

A) states verbatim as follows: 6. On September 6, 2010 I received and read a document from Rob Barber an employee of British Columbia Hydro security. The faxed documents contained the following information: (

a) A service check involves qualified personnel determining whether the total amount of electricity being used at a property is being recorded by the electrical meter that measures consumption for billing purposes. A stopwatch is used to time one complete revolution of the meter. An ammeter is placed on the service line to the property ahead of the meter and is used to measure the actual electricity delivered to the property. Using a mathematical formula, the results are converted into units of power known as watts and then compared to the readings at the electrical meter.

[ 14 ] He further deposed in para. 6(

b) to (

j) as follows: (

b) On April 29th, 2010, Rick Kondrashoff of B.C. Hydro attended 9553 285th Street, Maple Ridge and performed a service check. Kondrashoff measured the electricity flowing to the primary service line. These measurements were then converted into watts. The measured consumption was 34,560 watts. The electrical meter was not accessed at this time due to a locked gate. The electricity being delivered to this property is far above normal for a residence of this size. (

c) On June 15th, 2010 at 1410 hours, Kondrashoff attended 9553 285th Street and conducted a service check. This check indicated a usage of 30,240 watts. Again, the meter could not be accessed due to a locked gate. (

d) On July 8th, 2010 at 1145 hours, Rob Barber, an investigator for B.C. Hydro, attended 9553 285th Street and conducted a service check. This check indicated a usage of 34,560 watts. Again, the meter could not be accessed due to a locked gate. (

e) On July 16th, 2010 at 1500 hours, Rick Kondrashoff attended 9553 285th Street and conducted a service check. This check indicated a usage of 24,480 watts. Again, the meter could not be accessed due to a locked gate. (

f) On September 3rd, 2010 the meter at 9553 285th Street, Maple Ridge, was read by a B.C. Hydro meter reader. The register on the meter indicated that the customer was paying for 5,436 kilowatt hours over an 84-day period. This indicated that the customer was consuming an average of 64.71 kilowatt hours per day. (

g) For the four service checks conducted between April 29 and July 16, the residence at 9553 285th Street, Maple Ridge, consumed an average of 30,960 watts. Based on the consumption of all four service checks, the residence would consume 31,207 kilowatt hours in an 84-day period. This is approximately five times what the customer is paying for. (

h) The above indicates that electricity is being used without being recorded for billing purposes. As a result, a theft of electricity is occurring as per paragraph 7(a). At this time it is unknown how the customer is stealing electricity, however, the reasons have been listed in paragraph 7(a)(i)(ii)(iii) and (iv):

i) The faxed documents from Rob Barber contained a

summary of the meter readings for 9449 285th Street, Maple Ridge, which are as follows: February 11, 2010 meter reading equals 52,335 kilowatt hours referenced in the fax as "KWH". ii) April 13, 2010 meter reading equals 55,749 kilowatt hours. iii) June 11, 2010 meter reading equals 59,771 kilowatt hours. iv) September 3, 2010 meter reading equals 65,207 kilowatt hours. (

j) The documents received by Rob Barber provided information that Wesley Moore, date of birth 1984-03-14 is the subscriber to B.C. Hydro for 9449 285th Street, Maple Ridge, with Account No. 7500837 and that Moore has been the customer since April 30, 2010. B.C.

Hydro records indicated that the previous Hydro subscriber was Jim Stearn [phonetic] since October 2008. [ 15 ] In para. 7, Russell deposed that the "report above" by which it would seem he was referring to the document alluded to in para. 6 of the ITO indicated that there was a theft of electricity occurring at 9553 285th Street in Maple Ridge, the residence, and that on September 16th, 2010 it was unknown how the residence was stealing electricity.

He then set out the four possible ways this could occur, one being the use of a by-pass. [ 16 ] In para. 8 of Appendix A, he set out the qualifications of the persons who did the service check as follows: (

a) Rob Barber has worked for B.C. Hydro since June 2008. He has been trained in the detection of electrical theft. He has reviewed numerous electrical consumption records and tested numerous electrical services. (

b) Rick Kondrashoff has been employed by B.C. Hydro for over 25 years. He has been trained in the detection of electrical theft. He has investigated hundreds of electrical diversions. He has given evidence in both Provincial and Supreme Courts on electrical consumption and B.C. Hydro records. [ 17 ] It seems clear that he ought to have referred to service check in light of para. 6(b)-(

e) inclusive in Appendix A of the ITO. There is no suggestion in the evidence before me in the voir dire that Mr. Barber and Mr. Kondrashoff were other than properly qualified and experienced employees of B.C. Hydro, the owner of the electricity said to have been stolen, and really the complainant as far as Count 3 in the Information before the Court or that their opinion or investigation was flawed or wrong. I find that they were so qualified. Likewise, there is also no suggestion in the evidence that the report that they did which was considered by Russell and the other police officers was somehow inaccurate. [ 18 ] Constable Russell in para. 9 of Appendix A sets out in a

summary way what observations he made on September 16th, 2010 of the residence and the property on which it was situate. In addition, he set out the results of what I would call certain searches he did relating to the Hydro subscriber for the residence and the owners of the property, for example, on PRIME, CPIC, and with respect to drivers' licences. I think it is fair to say that all police investigation in this matter including reviewing written communications from B.C. Hydro were done on September 16th, 2010 and not earlier. This was of course the day the ITO was drafted by Constable Russell.

[ 19 ] The conclusion in the ITO, Appendix A, paras. 14 to 17 is as follows verbatim: Based on the information contained hereinafter, I have reasonable grounds to believe that the following offence is being committed: Section 326(1) (

a) Criminal Code of Canada , theft of telecommunication service (electricity). 14. I have learned through my personal experience with past theft of telecommunication investigations that theft of Hydro is almost always associated with illegal marihuana growing operations. Due to various electrical dangers associated with marihuana growing operations and theft of Hydro investigations, the assistance of B.C. Hydro is requested in order to ensure a safe environment for police officers. The following is therefore requested: (

a) Pursuant to s. 487.02 of the Criminal Code of Canada , it is hereby requested that a representative of B.C. Hydro provide whatever assistance is required to give effect to this warrant (see Appendix B). 15. Based on the above noted information, there is no reason to believe the investigation has been detected and I believe a theft of telecommunication is presently occurring at 9553 285th Street, Maple Ridge. 16.

I have been involved in more than 35 search warrant investigations in either the primary investigator, exhibit custodian, and/or assisting in the search where theft of telecommunications has been occurring. In the vast majority of these investigations I have seized the following items which I believe will be located in the residence of 9553 285th Street, Maple Ridge, and will afford evidence of theft of telecommunications: (

a) The assigned B.C. Hydro meter and conducting material used to divert electricity from the Hydro meter to alter proper Hydro consumption readings (jumpers). (

b) I believe these items will be located as it is my experience that when a theft of Hydro is occurring involving the meter there are four possible ways a theft could occur. The four ways are listed in paragraph 7(a)(i)(ii)(iii) and (iv). 17. I further believe that documents that indicate proof of residency will be located inside the residence. I have been involved in over 35 search warrants where documents are commonly found such as Tenancy Agreements, B.C. Hydro, Terasen bills, and phone bill records that establish who has control or residency over a particular residence. [ 20 ] Mr. Kompa and Mr.

Conroy appearing for Mr. Moore and Mr. Jesson respectively, allege that Constable Russell either left out certain material information in the ITO or alternatively misrepresented same, and in the result allege that it cannot be said that the ITO made full, fair and frank disclosure to the justice of the peace.

Therefore the search warrant should never have issued, and would never have been issued by the justice of the peace if accurate and complete information had been provided. [ 21 ] Implicit in the submission made by both counsel is that but for the misrepresentations or non-disclosures of various facts, the justice of the peace would have refused to issue the search warrant. [ 22 ] As I understand Mr. Kompa's written submission which Mr. Conroy fully adopts, there are seven problem areas in the ITO. These seven problem areas are my own

summary of the content of both counsel's written arguments dealing with the first alleged Charter breach and they are: 1. Constable Russell did not attach the B.C. Hydro fax transmission from Accenture to the ITO. 2. Constable Russell did not "verbatim" the information the fax transmission contained, that is to say he misquoted it. He used different language, different wording, and interpreted certain information in the fax without in essence stating in the ITO that he was so doing thereby alerting the justice of the peace. Mr. Conroy says on point in his written argument at p. 7 the following: 1.

Russell misled the judicial justice of the peace by overstating and inaccurately reporting the evidence he had been provided by Hydro and therefore did not provide full, fair, and frank disclosure. (

a) Mr. Kompa gives as an example at p. 26 of his argument Constable Russell deposing in the ITO what a "service check involves". He states "a stopwatch is used to time one complete revolution of the meter". He submits that the Hydro fax makes no mention of a stopwatch being used to time revolutions of the meter during any of the service checks on the residence. Very importantly there is no evidence this sentence is wrong in fact, only that it is not in the fax. (

b) Constable Russell in the same paragraph of the ITO also describes what a service check consists of. It has two components: the first involves obtaining a reading from service lines running towards the property and the second involves the comparison of the service line readings to the Hydro meter located on the property. The sense of Mr. Kompa's submission is that this information is not set out in the B.C. Hydro fax sent to the RCMP on September 16th, 2010. (

c) Mr. Kompa says in p. 26 "In the fax material" (by which I think he means in the ITO) Constable Russell deposes that the electricity being delivered is "far above normal for a residence of this size" whereas the Accenture fax content is that the consumption is above normal residential consumption. Mr.

Kompa submits that without Constable Russell being able to describe the size of the residence, number of rooms, the square footage of the residence, the number of occupants, or potential indoor or outdoor explanations for high consumption, that Constable Russell's above statement is misleading and I take his submission to mean in comparison to what the fax states. 3. Constable Russell added information to the ITO that the B.C. Hydro fax did not contain. 4. Constable Russell did not disclose to the justice of the peace in the ITO that the police were investigating theft of electricity

relating to what Mr. Kompa describes as "an adjoining or adjacent property" sharing one driveway having a locked gate. Nothing concerning this second concurrent investigation (also involving theft of electricity at 9449 285th Street in Maple Ridge) including an application for a search warrant via a separate ITO before a different or second judicial justice of the peace was disclosed. Mr.

Kompa says this on point at p. 26-7 of his written argument: Without disclosing the fact that two properties are involved with one common driveway and one locked gate and which power lines were being examined and measured for electrical consumption readings, the data provided or placed before the judicial justice of the peace was misleading. I think there is a suggestion in this submission that maybe somehow the B.C. Hydro people got their investigation wrong. I find there is no evidence at all that this was so. Mr. Conroy says this on point at p. 7 of his written argument: 2.

He failed to fully inform the judicial justice of the peace of the companion warrant to the adjacent property that shared the same driveway and apparently the same electrical pole on the street. Crown's response Ms. Khan points out that there is no evidence that 9449 and 9553 285th Street are adjoining properties, but rather they were neighbouring properties adjacent to one another. I do not agree with this point. Constable Russell said they were located “side-by-side”. In any event, in my view nothing particularly turns on this fact and how it is characterized. Ms.

Khan also points out that the ITO pertaining to 9449 285th Street was not an exhibit on the voir dire or in fact disclosed by Crown in the case at bar and asserts what is mentioned in this other ITO is beyond the knowledge of the parties to this matter. This is correct. As in R. v. Orr , 2008 BCPC 367 as I read the reasons, this other ITO was not before the Court on the voir dire . 5. Mr.

Kompa seems to complain that Constable Russell's ITO contains double hearsay in the sense that the cover page of the Accenture fax was authored by Rob Barber and he appears to rely on information provided by Rick Kondrashoff said to be a meter technician. 6. Constable Russell did not contact any member of B.C. Hydro security for additional information or communicate with anyone to clarify the information contained in the fax. 7.

Constable Russell sets out opinion evidence about how electricity is stolen without having the necessary foundation or expertise to offer such an opinion. [ 23 ] It will be seen immediately that there is some overlap in these categories of facts said to be misrepresented or not disclosed to the judicial justice of the peace. [ 24 ] Crown's position put generally with respect to all arguments advanced by defence counsel as to the validity of the ITO and whether it is so defective as to result in the warrant being in essence improperly issued is that the ITO was sufficient in that it included really the entirety of the relevant evidence the police had including from B.C.

Hydro. To the extent that the affiant Constable Russell made any errors in either summarizing or interpreting the B.C.

Hydro information in Exhibit B, that the errors were minor, inadvertent, and technical, and made in good faith and that minor errors were corrected by Constable Russell when he testified on the voir dire in amplification. [ 25 ] I should state that having considered all the evidence relevant to the ITO, I do not find that Constable Russell acted in bad faith in preparing it. [ 26 ] Crown submits in the event I should find any of the ITO content is misleading or erroneous, and she notes as do I, that defence have not specified which statements ought to be excised, that the remainder of the ITO will still provide a continuing and sufficient basis on which the search warrant could have issued (see paras. 25 and 26 of Crown argument). [ 27 ] I observe that it would have been most helpful had defence counsel provided some form of

schedule or clear statement as to the precise material misrepresentations, non-disclosed matters or errors they assert Constable Russell made when he prepared his ITO together with some clear statement as to how or why they were material, that is to say, how do defence counsel assert for example the fact not disclosed was material or important and if correctly given to the judicial justice of the peace it could or might have affected his decision to grant the search warrant? A simple example will do to demonstrate this point.

In point 4 above, defence counsel allege in essence that Constable Russell's failure to set out in the ITO with respect to the residence in question, 9953 285th Street, that the police were also investigating contemporaneously the theft of electricity at 9449 is a material non-disclosure, yet there is no submission made as to why this fact might have mattered to the judicial justice of the peace. The onus is on the accused to demonstrate that the evidence was insufficient (see R. v. Dueck , 2005 BCCA 448 at para. 11 ). [ 28 ] It is convenient to deal with this point now.

Constable Russell testified on the voir dire that on or about September 16th, 2010 the Ridge Meadows RCMP was involved in investigating two separate allegations. They were simultaneous and ongoing. [ 29 ] A Constable Granaman was tasked with respect to preparing an ITO regarding the residence at 9449 285th and Russell authored the ITO of course for 9553 285th Street. [ 30 ] B.C.

Hydro had done two reports, one being the Barber fax, Exhibit B on the voir dire, and a second with respect to an alleged theft of electricity at 9449. [ 31 ] Russell testified that he had seen both reports and had been involved in some part of the preparation by way of assisting Constable Granaman with the ITO for 9449 285th Street said to be a property located side-by-side to 9553 285th Street.

[ 32 ] Both search warrants were applied for the same day, on September 16th, 2010, and the two officers attended upon likely two different judicial justices of the peace that afternoon. Russell admitted he made no investigation of whether one Hydro line in essence served both residences No. 9449 and No. 9553. He testified B.C. Hydro determines what line goes where. He had no reason to believe one line served the two residences. Nothing in two B.C. Hydro reports indicated this was so. He did not know where B.C.

Hydro measured the line, by which I think he meant where they took their consumption related readings. [ 33 ] He made it clear that for purposes of the 9553 investigation that the RCMP was satisfied that the B.C. Hydro report, Exhibit B, was true and accurate and that it was correct in content. He was not challenged on any of this testimony in essence being that B.C.

Hydro had done an accurate report which the police relied on. [ 34 ] In the result, there is no evidence on the voir dire that would for example suggest that by reason of this contemporaneous second investigation that was ongoing with respect to 9449 that somehow Exhibit B is in error in factual content or conclusions set out therein. I have dealt with Exhibit B above. [ 35 ] It follows that I am unable to find that the failure -- if I can properly call it that -- on the part of Constable Russell to set out any facts with respect to the second investigation to use Mr. Justice Hood's turn of phrase in R. v.

Readhead , 2006 BCSC 776 is a "critical misrepresentation" which would have caused the judicial justice of the peace to reach a different conclusion upon consideration of the totality of all the evidence placed before him if this fact had been present. [ 36 ] I find it is neither an actionable or material non-disclosure in the same sense. I find it would not, had the information been disclosed, caused the judicial justice of the peace to make a different decision.

Defence counsel have not suggested any possible basis as to how this fact might have influenced or how had the information been disclosed, the judicial justice of the peace might have reasonably relied on it together with all other evidence before him to reach a different decision concerning the issuance of the search warrant. [ 37 ] I will now deal with the several references in the ITO to 9449 285th Street found in paragraphs 6(

i) and (j). [ 38 ] These are clearly errors and I find I accept Constable Russell's evidence in amplification that they were in essence clerical or typographical in nature and made by him with no intent to be untruthful. He said in each case the correct street address should have No. 9553.

I am satisfied that these errors can be corrected in the amplification process and further that on a reading of all of the ITO, they could not reasonably have misled the judicial justice of the peace and particularly in light of paras. 7, 9, and 16 therein. [ 39 ] I intend now to deal with the other problem areas identified by defence in their written submissions. [ 40 ] I have attempted to compare the B.C. Hydro fax of September 16th, 2010 (Exhibit

D) line-by-line with the content of the ITO with a view to making a proper decision on this voir dire with respect to the very general allegations made above by both defence counsel.

I repeat that in my view in a case of this nature this task was counsel's job, not that of the Court. [ 41 ] Defence as to point 1 above assert Constable Russell ought to have attached Exhibit D to the ITO and seem to suggest, and here absent a clear submission on point I may be guessing to some extent, that his failure to do so perhaps amounted to non-disclosure. [ 42 ] I observe that there is much to be said for the obvious common sense in the proposition that a police affiant of an ITO might consider appending the B.C. Hydro report, here Exhibit D, to the ITO in its entirety.

Constable Russell was not really cross-examined as to why he did not do this. Absent some very compelling reason and had this attachment of Exhibit D been done, it might well have saved hours of Court time on this voir dire .

Some time spent in Court with defence counsel cross-examining Constable Russell, not to mention judicial time spent comparing what Exhibit D actually says to what Constable Russell may have deposed it said in his ITO. [ 43 ] That said, defence counsel does not refer to any case authority binding on me that stands for the proposition that it is fatal to an ITO and a search warrant issued in reliance on same for the ITO not to exhibit the whole B.C. Hydro report.

It would however seem to be a best practice. [ 44 ] Where it is not exhibited and as here the affiant chooses to attempt to summarize it, an issue can arise and in this case it has arisen in spades, as to whether or not the police officer got the

summary right in his ITO or did he make material errors, misrepresentations, or leave important things out that may well have influenced the reviewing judicial justice of the peace in his decision to grant or refuse the search warrant. This I think is the real point taken by defence counsel in the case at bar in points 2 and 3 above. [ 45 ] I find that the failure on the part of Constable Russell to exhibit the B.C. Hydro fax, Exhibit D, to the ITO is not in itself fatal and should not result in the search warrant being set aside.

It cannot be seen in itself in my view as a material misrepresentation or non- disclosure. [ 46 ] I turn now to a consideration of points 2 and 3 above. Did Constable Russell make material misrepresentations or non- disclosures or errors in the ITO such that the search warrant should be set aside? I will attempt to deal with the B.C. Hydro report, Exhibit D, first and cross-reference it as best I can to the ITO, a process that I repeat might well have been wholly and completely unnecessary had Exhibit D been appended in the first place to the ITO when it was sworn. [ 47 ] At p. 2 of Exhibit D, Mr.

Barber explains what a service check is in a six-line paragraph. All of this paragraph is set out in paragraph 6(

a) of Constable Russell's ITO with one exception: line 6, Exhibit D, concludes: "which I then compared to the billed consumption". Paragraph 6(

a) of the ITO concludes instead, "and then compared to the readings at the electrical meter". In addition, paragraph 6(

a) of the ITO states, "A stopwatch is used to time one complete revolution of the meter". This statement does not appear in Exhibit D. [ 48 ] Constable Russell said in cross-examination he got this fact from B.C. Hydro in their reports received during previous investigations concerning theft of Hydro. He agreed he had no facts to say a stopwatch was ever used in the No. 9553 investigation. While there is no evidence that the above statement is wrong, out of an abundance of caution I am of the view that this is the type of fact that cannot be corrected in amplification.

[ 49 ] In the result, I am of the view that this sentence should be excised under the circumstances, whether or not it is accurate. While it cannot be saved on amplification, I do not find this excision is fatal to the ITO or validity of the search warrant. [ 50 ] As to the first point, the change in the last line 6's conclusion phrase, I note this is not expressly raised in argument to be of concern to the defendants. [ 51 ] Based on all the evidence on this voir dire , it seems to me that what Constable Russell deposed to is merely another manner of stating the concluding phrase in the B.C.

Hydro report at line 6. It is not a critical, material or actionable misrepresentation that would in my view have caused the judicial justice of the peace on a review of all the ITO to have acted differently than he did. [ 52 ] Exhibit D refers to four service checks being done on the residence, mostly by Rick Kondrashoff, on April 29, June 15, July 8, and July 16, 2010. The report states with respect to each that the amount of electricity being delivered to the property, and here I summarize, "is far above normal for residential consumption". [ 53 ] In para. 6(

b) of his ITO in dealing with the April 29th, 2010 service check, Constable Russell states: "The electricity being delivered to this property is far above normal for a residence of this size". In addition, although Constable Russell referred to the last three above service calls in the ITO, he left out any reference whatsoever to the above B.C. Hydro opinion found in each case in Exhibit D.

I will deal with this omission first. [ 54 ] Clearly, it is an omission that favoured the accuseds or might be seen to be of benefit to them, the whole point of the service checks being of course to establish whether or not an uncommonly large or above average amount of electricity was being delivered to the residence in question.

Thus, in my view, it cannot reasonably be argued that the failure to include these three references hurt the accuseds or could reasonably be seen to be a material non-disclosure which would have had the effect of causing the judicial justice of the peace when considered with all other evidence to issue a search warrant when had the statements been included, he might not have done so. [ 55 ] I turn to the first point, Constable Russell's replacement of the B.C.

Hydro report more general reference "residential consumption" with a more specific reference namely "a residence of this size". [ 56 ] In cross-examination Constable Russell readily admitted that he was not aware of whether or not No. 9553 had any sheds, outbuildings, or hot tubs. Nor was he aware of the size or square footage of the residence or the number of occupants therein.

No written submission is made as to why this modest change amounts to a material misrepresentation and why it might have affected the judicial justice of the peace in the sense that had the more general phrase been included, he would have acted differently than he did. [ 57 ] In my view, the term "a residence of this size" is subsumed in the concept of residential consumption which I think is a general enough phrase to include a residence of any size: big, small, or in between. [ 58 ] In the result, what Constable Russell included in para. 6(

b) cannot be seen to be a material misrepresentation of what B.C. Hydro told him in Exhibit D. The difference between the two phrases is in my opinion insignificant.

I find had the more general phrase been included in the ITO once or four times as per Exhibit D, it would not have caused the judicial justice of the peace upon consideration of all the evidence before him and the circumstances to act differently than he did. [ 59 ] I have noted that four similar references relating to the above four service checks in Exhibit D do not appear in the ITO, namely, the references to electrical load measured in amps, namely, 2.4, 2.1, 2.4 and 1.7 primary amps respectively.

It is not argued that these omissions are material and I have not overlooked them. [ 60 ] Of a similar vein is the omission in the ITO of the facts set out in Exhibit D that on July 8th, 2010 Mr. Barber attended the property accompanied by a B.C. Hydro powerline technician who was not named. Again, the defence does not properly I think argue this omitted fact was material nor have I overlooked it. There is as well the omission of the last line in Mr. Barber's qualifications set out in Exhibit D not included in para. 8 of the ITO. My finding is the same.

None of these points are material in my view. [ 61 ] Exhibit D deals with the September 3rd, 2010 service check and then concludes as follows and I quote verbatim: On September 3rd, 2010, the B.C. Hydro meter was read by a meter reader employed by B.C. Hydro for that purpose. The reading disclosed that the consumption being seen by the meter and therefore paid for by the customer was 5,436 kilowatt hours for the last 84 days [I note the reference is to "KWH" which I understand to mean throughout this document to be kilowatt hours].

The average electrical load measured during the four service checks was 30,960 watts or 30.96 kilowatts. The paid consumption for 84 days with a load of 30.96 kilowatts would have been 31,207 kilowatt hours. However, the paid consumption was 5,436 kilowatt hours. Therefore, a theft of electricity has taken place at this residence. [ 62 ] This ground is covered above in para. 6(f). [ 63 ] In cross-examination, Mr. Kompa elicited an admission from Constable Russell that nowhere in Exhibit D above does the noun "customer" appear whereas in the ITO para. 6(

f) Constable Russell uses it. In my view, this is not an entirely accurate response. Constable Russell did not state in para. 6 "the customer Wesley Moore". As well the noun "customer" appears in line 4 of Exhibit D above. I am satisfied that the ITO para. 6(

f) in the first two sentences fairly summarizes the content of the four lines in Exhibit D commencing "on September 3rd, 2010 ..." and hence I find there is neither a material misrepresentation nor a non-disclosure on this point. [ 64 ] Neither defence counsel cross-examined Constable Russell on any other aspect of para. 6(

f) in the ITO or expressly suggested in argument that other portions of same amounted to error, a material misrepresentation, or material non-disclosure.

[65] The last paragraph below the above reference to the service check on September 3rd, 2010 in Exhibit D was clarified in certainreply questions put to Constable Russell by Ms. Khan on the voir dire. [66] Constable Russell agreed he had not set it out verbatim in his ITO but rather had paraphrased it in para. 6(

f) and (

g) of the ITO. He also explained that his reference in para. 6(

g) last line "this is approximately five times what the customer is paying for" resultedfrom in essence a simple arithmetical calculation taking the Exhibit D estimate of what paid consumption ought to have been, namely,31,207 kilowatt hours, and dividing it by the actual paid consumption 5,436 kilowatt hours to get the result of “approximately fivetimes” referred to in para. 6(g). [67] I find that Constable Russell accurately summarized the above facts relating to the September 3rd, 2010 service check andfollowing opinion in Exhibit D in para. 6(

f) and (

g) of his ITO and that his simple calculation above is neither erroneous nor misleadingor any form of material misrepresentation. [68] Constable Russell was cross-examined as to the first two sentences set out in para. 6(

h) in his ITO. No express submission ismade by defence counsel that this is erroneous or amounts to a material misrepresentation. He testified these statements merely flowedfrom his

interpretation of two facts: (

a) the paid consumption should have been 31,207 kilowatt hours, but (

b) was only 5,436 kilowatt hours. [69] His conclusion set out in para. 6(

h) is precisely the conclusion found at p. 3 of Exhibit D. [70] As to point 5 above, that the B.C. Hydro report contains double hearsay, and again defence counsel do not clearly submit whythis is a problem, no case authority is provided by defence counsel that specifically states that this is an issue that can or does affect thevalidity of the search warrant. I agree with Ms. Khan's submission on point (para. 15) where she refers to the case of R. v. Lam, 2004BCSC 1799 approved in R. v.

Le, 2006 BCCA 298 at para. 16, leave to appeal to the Supreme Court of Canada denied where MadamJustice Satanove addressed this same point in paras. 15 to 16 of her reasons as follows: [15] I find from the totality of the evidence that Constable Massie had reasonable grounds for her subjective belief that a theft ofhydro was probably occurring.

She had the facsimile from BC Hydro which, in my view, is sufficient on its own to support the warrant.The fact that the facsimile was first sent to Staff Sergeant Elton (sic) and passed on to Sergeant Spooner, who then passed it on toConstable Massie, does not make the facsimile secondhand hearsay. The facsimile itself is documentary hearsay, but the number ofhands it passed through is irrelevant to this fact. What is relevant is the compelling nature of the contents of the document and its source. [16] This is not a case where the information came from an anonymous tip or an informant.

It was coming from a complainant. Thefacsimile specifically states that the author is a BC Hydro security employee and it is detailed as to where the theft occurred, the date andtime it took place, the amount of hydro that was stolen and how the theft was determined. Constable Massie does not need to have theexpertise herself to make those observations; she is entitled to rely on the observations and complaint of the owner that claims its hydropower has been stolen. Thus, this case is distinguishable from those cases such as R. v. Witter, [2003] B.C.J. No. 3035, 2003 BCSC1977, and R. v.

Monroe (1997), (BC CA), 8 C.R. (5th) 324 (B.C.C.A.), upon which the accused rely. [71] I am bound to follow both R. v. Lam, supra, and R. v. Le, supra. These decisions fully dispose of point 5 in my view which Ifind lacks merit and is again not a reason to set aside the search warrant in question. [72] I observe as well that in R. v. Lam, supra, there is no suggestion that before a police officer investigating theft of electricity canrely on a B.C. Hydro report concerning same, that he or she must first call the B.C.

Hydro representative and discuss the report. [73] The issue of Constable Russell not doing so is raised in point 6 above which I will now deal with. [74] I am aware that in some cases dealing with theft of electricity and ITOs and search warrants concerning same, there is someevidence that the police affiant of the ITO in receipt of a B.C.

Hydro report outlining probable theft of electricity has contacted a B.C.Hydro employee. [75] I am not aware of any case authority (and none is submitted by defence counsel in the case at bar) that says a failure to seekadditional information or so clarify information given is fatal to the ITO and following search warrant which issues. [76] In the event it could be shown that the B.C.

Hydro report, here Exhibit D, was so unclear in the ITO when and if it was putbefore the judicial justice of the peace that it would on its face likely be confusing, then perhaps the failure of the affiant police officer tomake the call to the author of the B.C. Hydro report to seek clarification might become evidence of his or her failure to make full andfrank disclosure to the judicial justice of the peace. I make no finding on this intriguing point. [77] Perhaps the issue raised in point 6 is that in the circumstance of this case, Constable Russell ought to have made the call beforecompleting his ITO.

If it is, defence has not said in argument as to precisely what facts or opinions he should have sought clarification. Ishould not guess. I have attempted to deal with this point to some extent above in my comments on defence counsels' points 2 and 3. Ido not find any merit in point 6 and it is not a reason to set aside the search warrant. [78] I turn to point 7 above which challenges essentially para. 7 of the ITO. [79] Constable Russell's evidence on the voir dire was that this paragraph was his own work. It is clear it is not set out in Exhibit Din this fashion or at all.

He testified that this content in the ITO was based on his own experience including in essence input that he hadearlier received in speaking to B.C. Hydro's Rick Kondrashoff and as well his review of previous B.C. Hydro reports and other cases.

[80] He said he set out this paragraph in the ITO as he wanted to make it clear to the judicial justice of the peace how in his view thetheft of electricity could occur. He underlined in his testimony that he had not said in his ITO by which method the RCMP felt a theft ofelectricity was occurring.

Constable Russell alludes to his experience dealing with investigations relating to theft of telecommunicationsand this of course includes electricity which had been occurring in para. 16 of his ITO. [81] On the voir dire he testified that by September 16th, 2010 he had about two-and-a-half years' experience since his departurefrom RCMP Depot training, all with the Ridge Meadows RCMP and was for some six months prior to September 16th, 2010 on themarihuana enforcement team.

Of the 35 investigations he had there done, he estimated that in seven to ten he was the ITO affiant. [82] This evidence was not challenged on the voir dire hence the judicial justice of the peace had some information as to ConstableRussell's experience available to him when he read the ITO. It has not been shown that this information in para. 7 is false or erroneous inany way. I observe that in para. 7 Constable Russell did not state that the four instances by which electricity might be stolen clearlyemanated from the content of the Barber document.

He did not try to state this as I have read the ITO. [83] It is true that in para. 7 Constable Russell did not attribute the basis for the information to be: (

a) telephone discussions with Mr. Kondrashoff; or (

b) his review of certain B.C. Hydro reports no doubt bearing on other cases of theft of electricity; or (

c) his own experience or all three of these sources. [84] In a perfect world perhaps this content might have preceded the sentence in the sixth line of para. 7 beginning "There are fourinstances...." [85] In my view, Constable Russell's failure to set out this information does not amount to a material misrepresentation or non-disclosure in the sense that had it been made, the judicial justice of the peace might have given pause as to whether or not to issue asearch warrant. [86] I do not accept that Constable Russell did not on September 16th, 2010 have the necessary foundation or knowledge to offer thisopinion as to how electricity could be stolen, nor do I find on the evidence he lacked the expertise to do so.

The judicial justice of thepeace knew he was reading an ITO prepared by a police officer and not an electrical engineer or employee of B.C.

Hydro. [87] The fact that Constable Russell admitted in his cross-examination on the voir dire that he had never been qualified in court togive opinion evidence with respect to the theft of Hydro in my view is neither here nor there, nor persuasive as to the utility of hisopinion offered in the ITO. [88] In my view, even a person with a very modest understanding of electrical power, for example, the bald-headed man in the backof the Clapham omnibus would have no difficulty with the opinion expressed certainly in para. 7(iv). [89] Finally, in my view what would have mattered to the judicial justice of the peace on September 16th, 2010 was the first sentencein para. 7, "The report above indicates that there is a theft of electricity occurring at 9553 285th Street, Maple Ridge" not the precisemeans by which it was occurring.

Hence, the methodology of the theft cannot be seen as a matter of crucial or likely any significance inthe process and any opinion offered on same or facts left out concerning same would not in my view likely have caused the judicialjustice of the peace to act differently than he did. Conclusion [90] As stated by Bruce P.C.J. (as she then was) in R. v. Dao, 2006 BCPC 71 at para. 22 of her reasons relying on R. v. Lyon, [2002]B.C.J. No. 1895 a judgment of Romilly J. at paras. 20 to 23 "A review of a search warrant should not amount to a microscopic analysisof each paragraph of the ITO".

Instead, the Court should be concerned with the totality of the circumstances before the justice. [91] Certainly as I have stated above, the review could be more straightforward, perhaps if the affiant appends the B.C. Hydro reportas an exhibit to the ITO. I do not say this is legally necessary but I reiterate my above point that this might have been most helpful. [92] Mr. Justice Donald of our Court of Appeal in R. v.

Pettit, 2003 BCCA 522 I think makes the same point as did Bruce P.C.J. atpara. 28 of his decision as follows: [28] The remaining points of argument on the sufficiency of the evidence to obtain are nothing more than a quarrel over the quality ofthe evidence. The trial judge was in the position of a reviewing judge whose mandate was to examine the whole of the material and todetermine whether the justice of the peace could have issued the warrant. It was not his role to substitute his discretion for that of theissuing justice.

He asked himself the right question: The question that must be answered is, after a complete analysis of the information to obtain, is there enough remaining that a justice ofthe peace could, acting judicially, grant a search warrant? [93] Bruce P.C.J. said this in para. 23 and 24 of her reasons in Dao, supra: [23] Third, the reviewing judge does not substitute his or her opinion for that of the Justice. If, based upon the record before theJustice, as amplified by oral evidence, the reviewing judge concludes the Justice could have granted the search warrant, the Court shouldnot interfere: Regina v.

Garofoli (1991), (SCC), 60 C.C.C. (3d) 161 (S.C.C.). In Regina v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) LeBel J. reiterated the test as follows:

In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. (at pp. 471- 2; emphasis in original) [24] Lastly, the reliable information before the Justice must meet the test of credibly based probability: Lyon at paras. 39-42. This means the ITO must set out sworn evidence sufficient to establish reasonable grounds for believing the offence alleged has been committed.

Although in a different context, the Supreme Court of Canada addressed the meaning of reasonable grounds to believe in Mugesera : ... "the reasonable grounds to believe" standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities ... In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information ... ...

The "reasonable grounds" for belief standard of proof applies only to questions of fact. [It does not apply to questions of law]. (at p. 270) [ 94 ] I am alive to the fact that Dao , supra , was not strictly speaking a case wherein as here the issuance of the search warrant was challenged on the basis that material facts had been either left out or misrepresented. [ 95 ] As stated by Hood J. (as he then was) in R. v.

Readhead , supra , at para. 184 relying on the Garofoli , supra , case and I paraphrase a little: [184] The ultimate question I must decide on this voir dire is whether on a consideration of the totality of the circumstances there continues to be any basis for the decision of the judicial justice of the peace based on the record before him as amplified by evidence on the voir dire and review after taking into account the non-disclosed information. [ 96 ] This task would I think also require the excision of the single line in para. 6(

a) which I have done. [ 97 ] I am satisfied and find based on my review of the totality of circumstances related to this ITO that there was reliable evidence remaining after this excision that might reasonably be believed on the basis of which the search warrant and authorization could have issued (see R. v. Al-Maliki , 2005 BCCA 157 , para. 19 ). I find the requisite grounds did exist for the issuance of the search warrant. [ 98 ] In the result, I find that Mr. Moore and Mr. Jesson have failed to establish a breach of s. 8 of the Charter for this reason.

The second above Charter issue also relates to an alleged breach of s. 8 of the Charter . [ 99 ] I turn now to a consideration of the facts relating to the remaining alleged Charter breaches set out above before returning to a discussion of the second alleged breach, namely, whether or not in the manner in which the RCMP executed the search warrant on September 17th, 2010 were Mr. Moore and/or Mr. Jesson's s. 8 Charter rights violated? [ 100 ] There are two points that I wish to make before doing so. Firstly, in a number of B.C. decisions all binding on me as a Provincial Court judge, judges of both B.C.

Superior Courts have stated that marihuana grow operations are potentially dangerous operations, certainly viewed from a community perspective. For example, in R. v. Su , 2000 BCCA 480 I think one of the leading cases on sentencing following grow operation convictions, Mr. Justice Lambert makes this point clear in para. 10 of his reasons stating that violence in essence can be attracted to this type of crime. Mr. Justice Braidwood in para. 17 in his reasons in Su seemed to be accepting of this proposition. [ 101 ] In R. v. Tran , 2001 BCCA 503 , Mr.

Justice Mackenzie of our Court of Appeal in para. 9 of his reasons spoke of the risk of violence associated with grow op activity. [ 102 ] In R. v. Readhead , 2006 BCSC 1566 Hood J. in sentencing Mr. Readhead following his conviction described a grow operation business as a very lucrative business and "an industry which also has a negative impact on local communities and constitutes a serious danger to those communities". [ 103 ] Presiding as I do as a Provincial Court judge in the Lower Mainland, I have heard similar evidence in other grow op or grow rip cases.

This type of judicial experience was relied upon in part by Hood J. in Readhead , supra , at para. 53. I take judicial notice of the fact that active grow operations carry with them risks of potential danger including violence, certainly for those investigating them. [ 104 ] The search warrant in the case at bar was applied for not to ascertain whether or not a grow operation was being conducted at the residence, but rather because B.C.

Hydro and the police believed electricity was being stolen thereat. [ 105 ] Importunately however Constable Russell deposed in his ITO at para. 14 that he had learned through his personal experience with past theft of telecommunication investigations that theft of Hydro is almost always associated with illegal marihuana growing operations.

This is neither a novel nor extreme thought and certainly this portion of Constable Russell's ITO was not challenged in cross- examination in the hearing of the voir dire before me. [ 106 ] Constable Russell said on point in the voir dire that when he and certain fellow officers were first on the front wooden deck of the residence that their firearms were not down when they looked through the windows to see if any threats were visible. At this time they were in a shooter's position, ready to engage in essence a threatening target.

He said he had been trained to do so and observed that he and his fellow officers were then sitting ducks by reason of the windows looking out onto the deck. He felt there was then a huge officer safety risk as I understood his evidence as any occupants in the residence could see the police from inside but the police could not

see such occupants from outside. [ 107 ] I understood the essence of his evidence to be that the police on the morning of the search were on the deck of the residence and before it was cleared were in a dangerous environment and carried various weapons for their own protection against potential very serious risks materializing, for example, people inside possessing guns and choosing to use them. Constable Russell touched upon this issue in his cross-examination concerning the use of his own gun in the morning in question as follows: Mr. Kompa: Demonstrate the low and ready position.

A So the low and ready would be at a 45 degree angle pointed downwards and it would be at my waist around my duty belt area. The Court: All right. A Pointed downwards. The Court: 45 degree angle to your torso. A That's correct. Now depending on whether we are room clearing or you know if we're doing a high risk takedown on individuals we will be pointing our firearm at them or up in the position – the shooting position – or the shooter's stance. We refer to it as where it's up and ready because if we're engaging targets inside, let's say this residence, we want to be ready to shoot. That's the purpose.

We don't want to be caught without firearms pointing downwards when we are facing an active threat per se . In this case with the individuals coming to the front door we had our firearms or I had my firearm in the low ready position. There was no – there was no pointing firearms at them. I didn't feel the need especially them being in their underwear coming to the door but we did have them out and ready to be deployed should there be, you know, the fourth unknown suspect within the residence.

And shortly thereafter guessed all the police officers on the deck had their guns drawn. [ 108 ] The following exchange then occurred and here again I refer to Russell's evidence: The Court: Well, you – A However I can't. The Court: -- ought not to be guessing in court but I suppose if you have some life experiences as an investigating officer in a situation like this as to what likely was so you can tell me about that. A Yes, Your Honour, and that's – that's what I'm referring to.

I apologize for using the word guess however in my experience as a police officer executing search warrants on an unknown residence with unknown occupants especially given the nature of a theft of Hydro with the potential for there being a marihuana grow operation, in my experience all officers have their firearms drawn at that point for safety reasons. [ 109 ] Secondly, and I think very unusually, Constable Russell was able to gain access to a mechanical device, a video recorder forming part of the surveillance system in place at the alleged grow operation at the residence, and which was seized as part of the police search, Exhibit H, item 20. [ 110 ] This recorder captured images on three of four channels and Constable Russell on the third day of the voir dire before me June 20th, 2012 was able to play a film essentially taken by exterior mounted and likely motion activated cameras of the police executing their search warrant on September 17th, commencing at about 8:25 a.m. (using the built-in timer in the video recorder which I find is modestly out of sync with, for example, Constable Russell's own watch by likely three to five minutes).

I have not performed an exact arithmetical calculation as to the time difference between Constable Russell's watch and the timer on the video recorder for exactly the same event as nothing in my view turns on it. [ 111 ] In the result, the Court was able to watch significant portions of the search and detention or arrest which occurred which is said to have violated certainly Mr. Moore's and Mr. Jesson's s. 8 Charter rights for purposes of the second Charter issue. [ 112 ] Mr. Conroy at para. 12 of his written argument appears to emphasize the helpfulness of this evidence. I agree with this point.

It is most helpful. He also relies on Mr. Kompa's recital of the material facts relating to the second issue. I now refer to Mr. Kompa's statement of facts that bear upon the second issue found at pp. 4-6 of his written submission as follows: Ten members of the Maple Ridge RCMP were involved with respect to the execution of the search warrant pertaining to the subject residence. Two officers armed with shotguns and a number of others with their semi-automatic handguns cradled in the low and ready position came onto the wooden deck of the property.

Constable Auger knocked on the front door of the residence on the south side of the property at 0832 hours. Located inside the property were Mr. Wesley Moore, Randy Gough, and Matthew Jesson. Very shortly after 0832 hours the three males were directed to come outside of the residence in their underwear. All were placed in handcuffs. All were handcuffed prior to the police ascertaining their identities, discovering a theft of electricity, or the marihuana grow operation. At that time in the morning all three individuals were directed barefoot in their underwear onto the patio.

The video tendered during the course of the voir dire indicates that the wooden patio was wet from rain that had previously fallen. [ 113 ] I note that there is some dispute in this voir dire as to whether the patio was wet from prior rain. Mr. Kompa continues: Police officer testimony indicated that the three males appear to have just gotten out of bed, and were sleeping when police arrived.

Ultimately during the course of the search of the residence a marihuana grow operation comprising of 719 plants was located. In addition, during the course of the search, documentary evidence a wallet and identification evidence in the name of Mr. Moore was found inside the residence. Mr. Moore was placed in the back of a marked police cruiser at 0848 hours. He was formally Chartered and arrested for theft of Hydro, production of a controlled substance, and possession of a controlled substance for the purposes of trafficking at the time. Ultimately the Hydro by-pass or diversion was located in a crawlspace.

The Hydro by-pass or diversion was not located until sometime after 10:00 o'clock in the morning. Mr. Moore and the other two occupants of the house were directed or ordered out of the house at gunpoint. They were directed in underwear and bare feet to stand on a front porch on the patio. Each was individually handcuffed. They were then directed by the police and placed in the back of police vehicles. [ 114 ] Ms.

Khan refers directly to the above video surveillance in her responding submission. [ 115 ] There is little dispute as to the following factual points she makes or as can be seen on a review of the surveillance video or as appear in the testimony of police officers on the voir dire in my view: 1. There is no evidence that the patio was wet from rain, nor could this fact be gleaned from the video. I think this is correct.

Nonetheless, the state of the surface of the wooden patio at the front of the residence where the majority of the action relating to the detentions and arrests occurred depending on how they are characterized is clearly not a significant fact bearing on the accused's allegation in my view. 2. Very early on in the search, Constable MacDonald, initially stationed near the garage door and while moving towards the rear of the residence, detected an immediate and overwhelming odour of fresh marihuana and could hear the sound of humming from the rear of the residence.

Constable Russell said there was an obvious smell of vegetative marihuana when he first entered the residence and stood about one meter from the front door. He gave in evidence not relying on the video surveillance timer as the time of his entry into the residence to be between 8:32 and 8:34 a.m., at most a few minutes after Constable Auger had performed his initial “knock and announce”. 3. Constable Auger performed a knock and announce at 8:29 a.m. About two seconds later, a male person, the first person came out, later identified as Mr.

Jesson who appeared at the door in his underwear and shortly came out at the direction of Constable Russell to the front porch. Russell said in evidence that Mr. Jesson was handcuffed at 8:29:21 a.m. by Constable Sprott. Before he came out of the residence, he asked if he could put the dogs away, words to this effect, and he did so. At this time, Constable Russell estimated there were between five to seven officers, on the deck the majority in plain clothes. In cross-examination, he said there were at least eight at the front door but did not state precisely when this was so.

Russell said this male person was told to stay on the porch once handcuffed. This was before the two other males came out. 4. Russell testified that Mr. Jesson was initially barefoot. He could not recall at this time whether it was raining but he felt the sun was out. 5. Russell entered the residence as per the video surveillance film at about 8:29:20 and about three seconds later, a second male came out with his hands up, wearing black knee-length shorts, but no top or shoes. On viewing the video on June 20th, 2012 Russell could not identify this person, but on cross-examination by Mr. Kompa, said it was Mr.

Moore. When I describe the times as I have, the first number is the hour, the second number is the minutes, and the third number is the number of seconds as per the well-known usage. 6. At 8:29:41, Russell left the residence with Mr. Gough also apparently in underwear who was handcuffed at about 8:29:48. He said there were then three police officers on the deck and by 8:29:52 all three accused persons were detained in handcuffs. 7. Constable Russell testified that he directed all three accused persons to step out onto the deck and that he then immediately detained them for theft of Hydro or electricity.

He agreed that when he did so certainly with respect to Mr. Moore, he had no physical evidence of the theft of electricity occurring, other than the B.C. Hydro report being Exhibit D on the voir dire . He said he was the police officer in charge of detaining all three of these people. All three men were immediately placed in handcuffs once they had been directed to the barbecue area on the front porch. He agreed that when they came out they did not then pose much of a threat to the police as they were all in their underwear and were all very cooperative.

Evidence was given on the voir dire that at this point the police interacting with the three accused felt they appeared to have just gotten out of bed and were sleeping when the police arrived. Russell's evidence given on point in cross-examination and not apparently found in R. v. Orr , supra , is as follows: Q Okay, prior to Mr. Moore being detained by you for theft of Hydro, there is no evidence of a Hydro theft occurring. A Well, the evidence would have been provided by B.C. Hydro in the form of a fax which led to my Information to Obtain. There was evidence that a theft was occurring.

Physical evidence that I could observe on the property on entrance into the property, no. There wasn't any evidence to support a theft, however, you know, this was done by a line, several line reads over a period of time by B.C. Hydro. There wouldn't be any physical evidence short of, you know, uncovering the by-pass or further inspecting the Hydro meter once it was pulled off the house, but – Q And specifically at the time that you are detaining Mr. Moore, directing his movements, and having him handcuffed, you have not discovered the marihuana grow operation in the basement. A That's correct.

Q And there is no smell of vegetative marihuana that you can smell in the front porch area on the outside of the residence at the time that you are detaining and having these individuals handcuffed. A Yes, that's correct.

Q And would you agree that these individuals are being detained and handcuffed even before their identities are being ascertained? A That's correct, yes. Q In other words, all you have is three Caucasian males. You don't know whether any one of them may be Mr. Moore or these other homeowners or the male homeowner prior to them being placed into handcuffs. A That's correct. Q They are, I'm going to suggest, systematically handcuffed before you even figure out whether they have any connection to the property. A Well, I wouldn't say I didn't have any knowledge of what their connection was to the property.

They attended the doorway in their underwear. One individual, the first individual had come to the door advised or asked us if he could put the dogs away which means that, you know, dogs are present within the residence. All three of them appeared once they came to the door to be in their underwear which to me, you know, I interpreted that as they were sleeping at the time or, you know, lying down or doing whatever inside the residence so you know to me I believe there was a connection to the residence. At that time did I know what that connection was?

No, which is why the purpose of detention was necessary prior to figuring out their identity and their subsequent involvement in the property. Q Would you agree that in terms of before you are telling these people "you are detained" and you are placing them in handcuffs, all you had is the fact that they were physically present in a residence. That's all you had. A That they are physically present in the residence? Q Right. A And that we are acting on information of a theft of Hydro that was occurring at that residence. Yes.

Q There was no evidence of a theft of Hydro occurring, no evidence of a theft of Hydro taking place or a marihuana grow operation before these three individuals are placed in handcuffs behind their back. A Well, again I would like to reiterate that B.C. Hydro provided us a report that the residents or, you know, the Hydro subscriber at that residence was stealing Hydro. Now at that very instance I'm not a B.C. Hydro expert and I could not physically prove that there was a theft occurring at that time. I attended the residence.

That to me does not necessarily suggest that there isn't a theft occurring at that very instant. I would need a, you know, I need specialized equipment to be able to determine that which is why B.C. Hydro was active in the investigation. I am acting in good faith on evidence that I received from B.C. Hydro that told me there was a – who in turn provided me a report that the report was stealing electricity so I did have an offence at that very instant. Did I believe that offence to be occurring? Absolutely.

And then these three individuals that I found in the residence well, I didn't know that their connection was to the residence at that time I detained them which is why they were detained and then B.C. Hydro was subsequently allowed on the property to determine the theft. Q Is your position Officer the fact that you had a search warrant gave you the power to automatically arrest every single person on the property? A Well, I would say it doesn't give me the power to arrest an individual.

It certainly affords me the authority to detain an individual until I can determine what their involvement in the residence is and to confirm that various offences have occurred, you know. In this particular case all three individuals were detained and upon entering the residence to clear it we located a marihuana grow operation. Before I Chartered and warned and ultimately arrested all three individuals I did ask for their names and determined that Mr. Moore was in fact the Hydro subscriber. So at that point I can, you know, determine their connection in the residence or to the residence.

It gives me the authority to enter that residence and they are detained until I can determine what their connection is. Q Is your position that the warrant enabled you to detain and handcuff every single person inside the residence? A I would say yes; I would say absolutely. These latter answers pertaining to Constable Russell's understanding of the effect of a search warrant would not appear necessarily be in line with some higher court decisions bearing on point, but a trial and testimony given therein in direct or cross-examination is not a law school examination and the police officer is not the candidate.

His knowledge of the law may well go to whether or not he acted in good faith, but what matters I think is whether he acted in accordance with established legal principles including for example a common law power to detain a person for investigation of a crime. The above latter answers can be put in further context when Constable Russell's earlier evidence on cross-examination is reviewed relating to the police briefing on September 17th before the search warrant was executed. Q Okay.

Now in terms of the briefing, was there a decision made and did you give directions to the officers that anybody located inside of the residence would be arrestable and was to be placed in handcuffs? A Everyone at the time was detainable for a theft of Hydro and the reason why I say detainable is because the only one arrestable in this case would be either the homeowner or the Hydro subscriber in the case and the reason for that is because is because the Hydro subscriber or the homeowner would be the person best suited to know that there is a theft of electricity occurring at that residence.

They are the ones who have control over the theft in my eyes anyways, therefore there would be – there would be reasonable grounds to believe that they're committing the offence of theft of electricity therefore they would be arrested. Now, having said that we didn't know who we were going to find in the residence so anybody who we could not identify as the homeowner or the Hydro subscriber was

detainable because we only had a suspicion at that point that they would have knowledge or would be committing that offence. Q Okay, and again was there a direction that everybody in the residence was to be placed in handcuffs? A Yes. I think what Constable Russell is saying here is that he as the lead investigator on this search gave this direction in essence that found-ins should be detained for purposes of investigation. He did not state, nor was he asked, if this was RCMP standard practice or policy in all searches for theft of electricity unlike in the case of R. v. MacIsaac , [2001] O.J.

No. 2966 at para. 63 . 8. By 8:31 the video does not show police officers with guns drawn and certainly Russell, by say, 8:29:42 is putting his firearm away. 9. By approximately 8:31:40 the residence was cleared by the police. 10. Shortly before he left the residence, I find at about 8:30 to 8:31 a.m., Constable Russell detected a grow op in the basement of the residence during the process of clearing it. He noted there were three bedrooms on the main floor. All appeared to be in use.

The lights were on in one of the two basement grow rooms and the access thereto from the main floor of the residence was unlocked. 11. At 8:31:59 Russell went outside the residence on the deck, took control of the three accused persons and had a brief conversation with them during which he believes they asked for some shoes. The video shows two fellow officers at about 8:32 a.m. coming out onto the deck with shoes for two of the accused. 12. At about 8:33:39 the three are taken down off the deck to the police vehicles.

Constable Russell estimated they were on the deck for five to ten minutes before being taken off and put in police cars. I find it was closer to five minutes that they were on the deck and before they were taken to the police cars. 13. At approximately 8:38 a.m., Constable Russell went out to the police cars and commenced to formally and individually arrest all three males for production and possession of a controlled substance for the purposes of trafficking, and theft of electricity. Ms. Khan notes that Constable Manning noted the arrest times for Moore and Jesson to be 8:40 a.m. and 8:44 a.m., respectively.

They were then Chartered and warned. 14. At about 8:56 to 8:57 a.m. two officers are seen to leave the residence with what according to Russell appears to be clothing in their hands and go down off the deck. Ms. Khan submits this clothing was provided to each of the three males in a timely way which I find borne out by the evidence in this case. 15. The three males were transported to cells at about 9:19 a.m. 16.

Constable Nelson testified that in the investigation in issue the police were looking for theft of Hydro but acknowledged that in all the investigations he had done for theft of Hydro, a grow operation had been involved. Constable Auger gave similar evidence and said he had decided to take a shotgun with him on September 17th when the search warrant was being executed because theft of electricity could be linked to a grow operation.

Again, the sense of his evidence on point was that he armed himself for safety reasons in the event an active grow operation was found to be part and parcel of the theft of Hydro investigation. 17. Russell agreed that while Jesson was a stranger when he first met him, he was also a suspect, and the sense of his evidence was with respect to theft of electricity. He agreed when he first detained him, he had no evidence of what he had to do with the residence other than being present and had nothing to tie him to the theft of electricity other than the home or the B.C. Hydro information. 18.

The police did not attempt to elicit evidence from any of the three men while they were detained save their names and possibly addresses. 19. The police had no idea of the number of occupants in the residence immediately before executing the search warrant on September 17th. 20. Russell could not while on the deck prior to Constable Auger's knock and announce detect the smell of marihuana. 21. I have earlier stated that the by-pass located in the crawlspace I believe was not detected until about 10:30 a.m.

Russell testified that in his experience typically a Hydro by-pass is not visible upon the police first entering a suspect residence. [ 116 ] Mr. Kompa's submission on behalf of Mr. Moore on the second issue is as follows and I quote it verbatim: In addition, it is respectfully submitted the manner of the execution of the search and the treatment of Mr. Moore also involves breaches or infringements of his s. 8 Charter rights.

There have been cases in the past that have held that in certain specific situations it is necessary from an officer safety perspective to utilize night time search entry or in certain specified situations the use of battering rams has been acknowledged as justified. In the instant case however this case involved the execution of a Criminal Code search warrant for alleged theft of electricity. It is respectfully submitted that the usage of so many officers with guns and shotguns drawn, the directing of the occupants in their underwear and bare feet onto the patio involved serious breaches of Mr.

Moore's s. 8 Charter rights. [ 117 ] Mr. Conroy's submission on behalf of Mr. Jesson on the same point is and again I quote from it verbatim: 15. No evidence of any prior threat was disclosed regarding the premises or the people expected to be found there. There was no evidence adduced that they suspected there were any guns at the premises or that any of the individuals had prior significant histories or where connected to any gangs. There was no application for the use of an emergency response team ("ERT"). Some ten or more officers

appear to have been involved in the execution of the warrant. Few seemed to initially recall having with them or drawing and using the shotguns including the pointing of them at individuals but fortunately the security camera captures a significant amount of that and it speaks for itself (Video Exhibit Q). [ 118 ] In cross-examination by Mr.

Conroy, Constable Russell admitted when they checked out the residence on PRIME -- and he did not make it clear to me precisely how he did this – that there were no threats to officers identified with the residence nor did they have any evidence that guns were there or that any occupant or I suppose the residence itself had any gang affiliation. He testified that the enquiries the police made prior to executing the search warrant turned up no significant history relating to this property. [ 119 ] No case law on the second point is provided by either Mr. Kompa or Mr.

Conroy to the Court. [ 120 ] Crown's position is that there is nothing unreasonable, excessive, or untoward in the way the search was conducted or in the manner they dealt with the three accused individuals. Ms. Khan describes what is conveyed in the video as follows at para. 33 of her written argument as follows: 33. The video tendered by the defence as an exhibit in the voir dire captures the conduct of the officers in a fortuitous and clear way.

It depicts the officers cautiously and slowly approaching the residence, performing the require knock and announce and thereafter dealing with the accused in the absence of a physical takedown or excessive use of force, including pointing their weapons to the ground once the accused came out of the residence. [ 121 ] I find this is an accurate description of what the video evidence on this voir dire portrays. I agree with Ms. Khan's assessment of it. [ 122 ] I do not find that defence has proven on the balance of probabilities that the manner of how the search was conducted constituted a breach of Mr.

Moore's or Mr. Jesson's s. 9 Charter rights on September 17th, 2010. There was no undue force used at all directly on any accused person. The video makes this conclusion very clear in my view. [ 123 ] Based on Constable Russell's evidence outlined above about police concerns about risks, for example, from the presence of unknown persons at the residence and as well my taking judicial noti

[…]