R. v. Reilly, 2018 BCPC 362

Citation: R. v. Reilly 2018 BCPC 362 Date: 20181224 File No: 249342-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LIAM REILLY RULING ON CHARTER VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: Mark Myhre Counsel for the Defendant: Colleen Elden Place of Hearing: Vancouver , B.C. Dates of Hearing: December 4, 5, 2018 Date of Judgment: December 24, 2018 A Corrigendum was released by the Court on January 17, 2019. The corrections have been made to the text and the Corrigendum is appended to this document. I.

INTRODUCTION [ 1 ] Liam Michael Reilly (the “applicant”) has been charged in a multi-count Information that on November 3, 2017, he allegedly committed a robbery, while using a firearm or an imitation of a firearm, of an e-cigarette business known as Boss Vapes, located in

Burnaby, British Columbia. [ 2 ] In addition, the applicant has been charged in the same Information that on November 16, 2017, he allegedly committed a robbery, while using a firearm or an imitation of a firearm, of Deer Lake Market, located in Burnaby, British Columbia. [ 3 ] On November 17, 2017, a member of the Metro Vancouver Transit Police (the “MVTP”), in conjunction with members of the Burnaby Royal Canadian Mountain Police (the “RCMP”), arrested the applicant without a warrant inside his residence located at 7375 Canada Way, Burnaby, British Columbia (the “residence”). [ 4 ] After the arrest of the applicant, police members conducted a clearing search of the residence.

During the clearing search, police officers observed several items, including a black mask with a white skeleton logo that was associated with the two robberies. [ 5 ] Following the clearing search, the residence was secured and Constable Emond of the RCMP drafted an Information to Obtain (the “ITO”) in support of a search warrant for the residence, pursuant to s. 487 of the Criminal Code of Canada (the “ Code ”). [ 6 ] A Judicial Justice of the Peace (the “Justice”) granted the application and authorized members of the RCMP to search the residence between the hours of 9 AM and 3 PM on November 18, 2017. [ 7 ] The search warrant was executed.

During the execution of the search warrant various items were seized, including: • several packages of “Belmont” cigarettes; • various “vape” products; • a pair of grey sweatpants; • a black mask with a white skeleton logo; • a pair of black gloves; • a black Under Armour hoodie; • two pairs of Nike running shoes; • a CZ 858 model rifle; and • a loaded magazine. [ 8 ] On November 26, 2018, the applicant filed Notice that he would be seeking an order to exclude evidence obtained as a result of the above arrest and searches pursuant to s. 8 and s. 24(2) of the Canadian Charter of Rights and Freedoms (the “ Charter ”). [ 9 ] In the alternative, the applicant asserted that as a result of breaches of his s. 8 Charter right, a judicial stay of proceedings ought to be directed pursuant to s. 24(1) of the Charter .

The applicant did not pursue this ground in his submissions. [ 10 ] The Crown (the “respondent”) admits that there were breaches of the applicant’s s. 8 Charter right when he was arrested without a warrant in his residence on November 17, 2017. [ 11 ] As a result of the s. 8 breaches, the respondent submits that “anything” relating to the arrest of the applicant on November 17, 2017, should be excised from the ITO (Appendix A). Based on the remaining information contained in the ITO, the court ought to find, based on the totality of the circumstances, that the ITO remained facially valid. II.

ADMISSIONS OF FACT [ 12 ] Pursuant to s. 655 of the Code , the following admitted facts are relevant to this ruling: 1.

Between October 3, 2017, and November 27, 2017, the applicant was bound by a court order that included the following conditions: • You must not be outside your place of residence between the hours of 7 PM to 6 AM seven days per week except with the written permission of your bail supervisor, and such permission must be carried on your person and presented upon request to a peace officer or bail supervisor or his or her designate; • You must present yourself at the doorway of your residence to a peace officer, correction officer or bail supervisor who intends to ensure your compliance with your curfew. 2.

On November 2, 2017, the applicant advised his bail supervisor that he would be residing at 7375 Canada Way. 3. On November 13, 2017, the applicant presented himself for curfew check at the above address. 4. On November 16, 2017, the applicant advised his bail supervisor that he was back at 7375 Canada Way and would be residing there through the weekend. 5. The residence at 7375 Canada Way was searched by members of the Burnaby RCMP at 12:40 PM on November 18, 2017. III. CIRCUMSTANCES RELATING TO THE ARREST OF THE APPLICANT

[ 13 ] On November 16, 2017, the robbery of the Deer Lake Market took place. The perpetrator brandished a firearm. Investigators determined that the perpetrator of the Deer Lake Market robbery had identifiers consistent with those of the perpetrator brandishing the firearm at the Boss Vapes robbery. [ 14 ] On November 17, 2017, Timothy Duliepre (“Duliepre”) was arrested by RCMP members at 7:13 AM, at a bus station in Langley, British Columbia. He was arrested for armed robbery relating to the Boss Vapes robbery.

At 11:38 AM, Duliepre provided a statement to the police in which he identified the applicant as one of the co-perpetrators of the Boss Vapes robbery. [ 15 ] At an afternoon briefing on November 17, 2017, convened by Sergeant Aitkin at the Burnaby RCMP detachment, members of the RCMP and members of the MVTP were advised that the applicant was arrestable for the Boss Vapes robbery and the Deer Lake Market robbery. [ 16 ] The meeting included Constable Adzijaj of the MVTP.

He had become involved in the robbery investigation relating to the applicant because he had had prior dealings with the applicant and would be in a position to identify him. [ 17 ] Constable Adzijaj had contacted one of the applicant’s probation officers. The probation officer advised that the applicant was living at 7375 Canada Way in Burnaby. [ 18 ] The probation officer advised Constable Adzijaj that he occasionally would perform curfew checks on the applicant.

The probation officer told Constable Adzijaj that when he conducted a curfew check, he would generally contact the applicant by cell phone to have him come to either the back door or back sliding glass door of the residence. [ 19 ] The probation officer also advised Constable Adzijaj that there were other occupants living in the residence who were unaffiliated with the applicant, so discretion was important in performing a curfew check to avoid disturbing the other occupants. [ 20 ] Constable Adzijaj testified that this information was relayed to members of the RCMP at the meeting convened by Sergeant Aitken on the afternoon of November 17, 2017.

This meeting included Constable Sinclair. [ 21 ] Constable Sinclair is a member of the RCMP. In November 2017, he had been a police officer for approximately three years. Constable Sinclair formed part of a “team” of fellow RCMP officers, in conjunction with members of the MVTP, investigating the applicant’s involvement in the robbery of the Boss Vapes Store and the Deer Lake Market. [ 22 ] At the meeting, a plan for the arrest of the applicant was developed. Various police members were tasked to establish surveillance at the residence.

Constable Sinclair and Constable Adzijaj were tasked to go to the rear door located at the southwest corner of the residence, as it was believed that that door was connected to the applicant’s suite. [ 23 ] Constable Sinclair and Constable Adzijaj were to perform a “knock and announce” curfew check on the applicant. It was the expectation that the applicant would come to the door of the residence and Constable Adzijaj would be able to identify him from prior dealings.

The applicant would then be arrested for the two robberies. [ 24 ] As noted at para. 12 of this ruling, the applicant was living at the residence and was also subject to a curfew of a 7:00 PM through 6:00 AM seven days per week, subject to certain exceptions. [ 25 ] Shortly after 8:00 PM on November 17, 2017, with the other police surveillance in place, Constable Sinclair and Constable Adzijaj positioned themselves at the southwest rear door of the residence.

They both testified that they individually knocked and announced their presence as police on the rear door over a period of time. [ 26 ] There was no response to the knocking, and both police officers could hear music coming from the interior, along with barking from a dog. [ 27 ] Then, without any consultation with Constable Adzijaj, or any senior members (all of the police officers on scene were connected by radio transmitters), Constable Sinclair tried the sliding glass door on the patio next to the rear door, and discovered that the door was not secured.

He slid the door open and entered the residence. [ 28 ] Constable Adzijaj had no notice that Constable Sinclair was going to unilaterally change the arrest plan. He testified that he became very nervous and fearful, thinking, “I hope this doesn’t go south”. He felt it was necessary to follow Constable Sinclair into the residence.

This would make sense, as he would be able to provide protection for Constable Sinclair and himself if things went awry. [ 29 ] Constable Sinclair was aware of information from a co-accused involved in the alleged robberies that the applicant would be willing to shoot a police officer. [ 30 ] Constable Sinclair testified that he entered the residence because he thought that the applicant would use the loud music as a defence to explain why, if he was charged with a breach, he did not present himself at the door of his residence in compliance with his court-imposed curfew condition.

It was with this specific thought in mind that Constable Sinclair entered the residence to knock on the second door: Transcript, December 4, 2018, p. 57, ll. 18-34. [ 31 ] Once Constable Sinclair was in the residence, he went directly to a door that he believed accessed the applicant’s suite and began to knock on the door, announcing, “Police.” The applicant opened the door and Constable Sinclair asked him for some identification. [ 32 ] Before the applicant could provide any identification, Constable Sinclair entered the applicant’s suite, advising him that he was under arrest for robbery.

Then he, “… kind of wrapped him up, because I did not want him reaching for any guns or weapons”: Ibid , p. 55, ll. 17-19.

[ 33 ] Constable Sinclair testified that he was 235 pounds and 195 cm in height at the time he arrested the applicant. He described the applicant as cooperative at the time he was arrested. [ 34 ] Constable Sinclair testified that the applicant was searched, including having him remove his Nike running shoes so his socks could be searched.

When the applicant was taken out of the residence within a minute or two of his arrest, his Nike running shoes were left behind, though he was permitted to put his socks back on. [ 35 ] After the arrest, Constable Adzijaj conducted a cursory search of the upper portion of the residence with the “sole intention” of seeing whether there was anyone else in the residence that may have access to firearms. Upstairs, he found a South Asian male who was not associated with the applicant.

That person was asked to leave the residence. [ 36 ] When Constable Adzijaj was in the upper portion of the residence, he saw a closet that he described as being “propped open.” He felt it was possible that someone might be hiding in the closet. As the closet door was ajar, he did not need to open the door. He testified he could see in the entirety of the closet, and noticed a cardboard flat containing what he believed to be vape juice that is used for e-cigarettes. [ 37 ] Corporal Weiping Chen is a 15-year member of the RCMP.

On November 17, 2017, he attended the briefing at the detachment to discuss the plan to arrest the applicant for the two robberies. [ 38 ] Corporal Chen testified that after the residence was cleared, it was secured pending the issuance of a search warrant. The applicant was transported to the Burnaby RCMP detachment. [ 39 ] Corporal Chen testified that, while he did not have a specific memory of the length of time the police officers were in the residence, typically the arrest of an individual and the clearing of a residence takes between 5 and 10 minutes.

It was his opinion that the arrest of the applicant and the clearing of the residence was typical. [ 40 ] Constable David Pare was a new recruit with the RCMP on November 17, 2017.

He was partnered with Constable Sinclair on that date. [ 41 ] Constable Pare attended the briefing convened by Sergeant Aitken to discuss strategy in relation to the arrest of the applicant. [ 42 ] Constable Pare testified that at the briefing, police members were provided with the address of the applicant’s residence, the circumstances surrounding the robbery, a description and photograph of the applicant, and a description of the clothing worn by the applicant at the time of the robbery.

They were also told that if an arrest was made, they should keep a “lookout” for a black mask with a skeleton on it. [ 43 ] Constable Pare was tasked with the role of establishing surveillance at the rear of the residence. [ 44 ] Constable Pare testified that after he arrived at the residence, he positioned himself at the rear and observed Constable Sinclair and Constable Adzijaj taking up a position at a door connected to the rear of the residence. [ 45 ] Constable Pare believed that Constable Adzijaj was knocking on the door.

He heard one of the police officers say words to the effect of, “Police”. [ 46 ] Constable Pare testified that he next saw Constable Sinclair and Constable Adzijaj enter the residence, and he recalled hearing one of the police officers stating, “You are under arrest”. [ 47 ] Constable Pare testified that he went into the residence for a quick “look around” to make sure there were no other occupants in the residence. He did not observe anyone other than Constable Sinclair, Constable Adzijaj and the applicant in the lower level of the residence.

He did not go upstairs. [ 48 ] Constable Pare testified that he saw a small room connected to the living room that he believed contained an office. He went inside to make sure there was no one in that room. Once he was inside the room he observed, in plain view, a black mask on top of a drawer. He did not touch the mask. He left the mask on top of the drawer. IV. LEGAL FRAMEWORK [ 49 ] The British Columbia Court of Appeal (the “BCCA”), in R. v. Liu , 2014 BCCA 166 , at para. 39 , provides a succinct

summary of the main points developed from the jurisprudence relating to judicial review of the validity of a search warrant: 39 I would summarize the main points from this jurisprudence in the following way: • The trial judge's role in reviewing the validity of a search warrant is to consider whether the material filed in support of the warrant, as amplified on review, could support the issuance of the warrant. • The trial judge should examine the information in its totality, not on a piecemeal basis, but on a "practical, non-technical, and common-sense basis". • The question is not whether the reviewing judge would have granted the order, but whether there was an objective basis on which the issuing justice could have done so. • The appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or " prima facie case".

The phrase "reasonable belief" also approximates the requisite standard. • Reasonable grounds may be said to exist at "the point at which credibly-based probability replaces suspicion".

[50] In this case, the applicant challenges the search warrant on the basis of the facial validity of the ITO.

The applicant contendsthat the substantive contents of the ITO are such that the issuing Justice could not have issued the search warrant. [51] In circumstances where there is an attack on the facial validity of an ITO, the court is required to examine the entire ITO todetermine whether the issuing Justice could have issued the search warrant based upon the contents of the ITO, and only the ITO: R. v.Boussoulas, 2014 ONSC 5542, at para. 9. [52] The impact of excision on the validity of a search warrant where there has been a s. 8 Charter breach was explained in R. v.Wiley, (SCC), [1993] 3 S.C.R. 263, at para. 18: 18 Having concluded that the warrantless perimeter search violated s. 8 of the Charter, it is necessary to determine the effect whichinclusion of facts [page 274] obtained during the unconstitutional search in the information in support of the warrant has on its validity.

In R. v. Garofoli, (SCC), [1990] 2 SCR 1421, this Court concluded that a search warrant issued in reliance, in part, onfacts which are found to be inadmissible on review will continue to be valid if it can be shown that the warrant would have issued even ifthe inadmissible facts had been excised from the information sworn to obtain the warrant. (Emphasis Added) [53] Information obtained by unconstitutional means must be excised from the ITO and what remains, as amplified on review, mustbe assessed to determine whether the search warrant could have issued: R. v.

Mahmood, 2011 ONCA 693, at para. 116. [54] I adopt the written submission of the applicant that, “[a] search warrant cannot issue on the basis of bald statementsunsupported by objective facts”: para. 29. [55] I also adopt the written submission of the applicant that, “[i]t is insufficient for an affiant to simply state conclusions, opinionsand facts without including sufficient information on the source or origin for such conclusions, opinions and facts”: ibid. [56] In cases involving informant source information that amounts to no more than a bald conclusory statement, that will generallynot establish grounds of reasonable probability: R. v.

Tetreault, [2007] B.C.J. No. 2409. [57]

Section 8 of the Charter provides that: Everyone has the right to be secure against unreasonable search or seizure. [58] Section 24(2) of the Charter provides that: 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or deniedany rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [59] The Supreme Court of Canada (the “SCC”) articulated a “revised approach” to s. 24(2) of the Charter in R. v.

Grant, 2009 SCC32, at para. 71, which reads: 71 … When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting theevidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct(admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in theadjudication of the case on its merits. … [60] The SCC addresses the approach to the seriousness of the Charter-infringing state conduct, at para. 72: 72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence wouldbring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for theadministration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits ofthat unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for thecourts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence inand ensure state adherence to the rule of law. [61] State conduct that infringes Charter rights will extend over a broad spectrum. At the one end of the spectrum, the breach maybe inadvertent or minor, and at the other end of the spectrum, wilful or reckless.

The more severe the state misconduct, the greater theneed for the court to disassociate itself from the conduct by excluding evidence obtained as a result of the Charter violation: ibid, atpara. 74. [62] “Good faith” on the part of the police will reduce the seriousness of a Charter breach. “However, ignorance of Charterstandards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith”: ibid. [63] The second Grant factor calls for an “… evaluation of the extent to which the breach actually undermined the interests protectedby the right infringed”: ibid, at para. 76. [64] The impact of the Charter breach may, at one end of the spectrum, be fleeting and technical, or may, at the other end of thespectrum, be profoundly intrusive.

The more serious the impact on an accused’s Charter-protected interests, the greater the need toexclude, to avoid public cynicism that may bring the administration of justice into disrepute: ibid. [65] The third Grant factor identifies society’s interest in the adjudication of the case on its merits, and “… asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: ibid, at para. 79. [66] Important factors under this line of inquiry are the relevance and reliability of the evidence, and the importance of the evidence

to the Crown’s case. The exclusion of evidence that is real, reliable and important to the Crown’s case “… may undermine the truth- seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”: ibid, at para. 81. V. ANALYSIS AND FINDINGS (

i) The Facial Validity of the ITO [ 67 ] The position of the applicant in relation to the facial validity of the search warrant can be summarized as follows: • that Duliepre is in a position no different from that of an informant, and therefore his warned statement to the police as summarized in the ITO does not establish compelling, credible evidence that was corroborated and that would connect the applicant to the two robberies; • that there is nothing contained in the ITO that would establish the reliability of Duliepre as an informant, whether he has been an informant to the police in the past and whether or not he has a credible track record in providing information to the police; • that Duliepre had every reason to point the finger at other individuals to reduce or minimize his role in the Boss Vapes robbery; • that Duliepre told the police that the applicant resided at 7373 Canada Way and then 7375 Canada Way, which has not been corroborated in any reliable way; and • that the affiant’s belief that the applicant robbed the Deer Lake Market wearing clothing that he states is the same as that worn by the applicant at the Boss Vapes store is uncorroborated and conclusory.

At best, the most that could be said is that the clothing is “similar”. [ 68 ] The position of the respondent in relation to the facial validity of the search warrant can be summarized as follows: • that the evidence in the ITO respecting the co-accused, Duliepre, in relation to the Boss Vapes robbery establishes a credibly-based probability that it was the applicant who was a party to that robbery; • that Duliepre provided a warned statement against interest to the police after he received independent legal advice, and that statement establishes a corroborated connection between the applicant and the Boss Vapes robbery; • that it is reasonable to believe that the same person robbed the Boss Vapes store and the Deer Lake Market based upon the belief of the affiant that the slim young Caucasian males wearing an Under Armour hoodie, a skull mask and black gloves, and brandishing a firearm, are one and the same person; • that it is reasonable for the Justice to rely on the affiant’s belief, as it is supported by the opinion of Constable Sharein, who had the opportunity to view the video footage of both robberies; • that it is reasonable to believe evidence relating to the two robberies, including a firearm, clothing worn at both robberies, and the Belmont cigarettes stolen from the Deer Lake Market, would be found at the applicant’s residence; and • that there would be a common-sense inference that evidence relating to the two robberies might be discovered at premises under the control of the applicant, and that the length of time between the robberies and the issuance of the search warrant was not sufficient to rebut that inference: R. v.

Seo , 2016 BCSC 2672 , at paras. 14 & 15 . [ 69 ] At paras. 48(

b) and (

c) of the ITO, the affiant deposes that the same person robbed both the Boss Vapes store and the Deer Lake Market. This conclusion is based largely on distinctive clothing and the brandishing of a handgun. [ 70 ] Constable Sharein viewed video surveillance from both the Boss Vapes store and the Deer Lake Market.

After reviewing the video surveillance, it was his opinion that the “matching clothing with unique identifiers and the matching slim stature of the person” indicated that the robbers were the same person: para. 37(xiv) and (xv). [ 71 ] On November 16, 2017, Constable Ciccozzi responded to the report of the robbery of the Deer Lake Market.

He viewed the video surveillance and observed “… a male, wearing a black Under Armour pullover hoody, black jogger style pants, grey runners, holding a black handgun”: ibid, at para. 35(c). [ 72 ] Constable Ciccozzi also took an audio statement from W.X.Y., a witness to the robbery, in which the witness noted, “the male was wearing a black mask with a white skull and a black hoody”: ibid, at (d)(iii). [ 73 ] Constable Jean attended at the scene of the Boss Vapes robbery and took an audio statement from K.G., a witness to the robbery, in which the witness noted, “… the Persian/Caucasian guy was wearing a black North Face puffy jacket, a black hoody with the hood up and grey sweatpants with a black mask covering their [sic] lower face … the Persian/Caucasian guy was holding a silver gun”: ibid, at para. 17(b)(vi) and (vii). [ 74 ] Corporal Bhandar attended at the scene of the Boss Vapes robbery and obtained a statement from the Boss Vapes cashier, A.T., in which he describes one of the robbers as a “… white male… 6 feet tall, skinny build, wearing a black and white skeleton bandana (or mask) over the lower portion of his face”, and this same “… male brandished a silver revolver” which he pointed at his face: ibid, at para. 18(a)(iv) and (v). [ 75 ] Constable Chen attended at the scene of the Boss Vapes robbery and obtained a statement from J.C., who was in his car driving past the Boss Vapes store when he observed four men running out of the Boss Vapes store.

J.C. advised Constable Chen that the men

“… were wearing face masks and bandanas”: ibid, at para. 20(a)(ii). [76] Based on the foregoing, the affiant’s belief contained at para. 48(

b) and (

c) of the ITO is not simply conclusory, but ratherobjectively supported by other evidence contained within the ITO. [77] I find that paras. 48(

b) and (

c) of the ITO are not to be excised. [78] I agree with the applicant that there is no objective foundation to support the belief of the affiant contained at para. 48(

g) of theITO. It is therefore excised from the ITO. [79] The applicant has characterized Duliepre as an informant and says that his evidence identifying the applicant as one of therobbers of the Boss Vapes store and identifying the applicant’s residence as 7375 Canada Way in Burnaby is not credible, compelling, orcorroborated. [80] An informant takes a great risk in providing information to the police. Accordingly, police forces across Canada haveestablished protocols to protect the identity of informants.

Some police forces have established specialized units to handle informants, asit has been described as a complex area of policing: R. v. Mak, 2018 BCPC 288 , at paras. 50-52. [81] Current appellate authority emphasizes the need to prohibit disclosure of any information which may tend to reveal the identityof an informant: R. v. McKay, 2016 BCCA 391 (leave to appeal to the SCC refused April 20, 2017). [82] In this case, Duliepre was not cloaked with informant privilege. Rather, he was a co-perpetrator with others who robbed theBoss Vapes store.

Once he was identified and arrested, he gave a warned statement to the police after receiving independent legaladvice. [83] Duliepre provided a detailed statement to the police respecting his involvement with the other perpetrators of the robbery of theBoss Vapes store. Details of that statement were incorporated into the ITO, ibid, at para. 41. [84] Much of what Duliepre told the police was corroborated.

The Ford Focus that the perpetrators used was recovered; Duliepre’sright thumb print was found on a broken passenger side mirror of the Ford; prior to committing the robbery of the Boss Vapes store, theperpetrators tried to rob a drug dispensary, but the doors were locked; the perpetrators bought gloves to commit the robbery from a storedescribed by Duliepre; the applicant (known to Duliepre as “Steve Savage”) brandished a handgun; one of the perpetrators used bearspray when they left the Boss Vapes store; and Duliepre identified himself from photographs that were circulated to other policemembers prior to his arrest. [85] Duliepre also told the police that he had been at the applicant’s residence in the past.

As noted in the ITO, Duliepre was able toidentify the applicant’s residence from Google Maps as a duplex situated on Canada Way. The west side of the duplex had the addressof 7373 Canada Way.

After adjusting Google Maps, Duliepre was able to identify the applicant’s residence at the address of 7375Canada Way: ibid at para 42. [86] As noted in the ITO, the Burnaby Community Corrections Office confirmed that the applicant was living at 7375 Canada Way,Burnaby, as of November 16, 2017, and was expected to reside there throughout the weekend: ibid, at para. 42(a). [87] Duliepre described accessing the applicant’s residence through a door at the rear of his residence.

He told the police that theapplicant lived in the residence with his wife and a black, brown, and white Chihuahua. [88] Constable Sinclair and Constable Adzijaj both heard a dog barking behind the rear door of the residence on November 17,2017. Constable Adzijaj associated the barking with a small dog. [89] I find that paras. 40-42 of the ITO establish the reasonable grounds for the statement of the affiant contained in para. 48(a), andare not excised from the ITO. [90] The applicant has challenged the search warrant issued by the Justice on the basis of the facial validity of the ITO.

Subject tothe excision noted in this ruling, I find that the Justice could have issued the warrant to search the residence for those items contained inthe warrant, but excluding the property and identification of M.G. (ii) Section 24(2) of the Charter (

a) Discussion [91] I find that the applicant’s s. 8 Charter right was breached on November 17, 2017, on three occasions. First, when ConstableSinclair entered the residence through the glass patio door. Second, when Constable Sinclair entered the bedroom of the applicant toarrest him. Third, when the police conducted the clearing search following the arrest of the applicant. [92] There is no question that the conduct of Constable Sinclair resulted in a serious violation of the applicant’s s. 8 Charter right.

That being said, it is necessary to assess the totality of the police conduct at the time the applicant’s s. 8 Charter right was violated. [93] Constable Sinclair’s unlawful entry into the residence and unlawful arrest of the applicant resulted in the necessity of the policeconducting a clearing search to ensure there was no one else in the residence. [94] I find from the evidence that the police were in the residence for approximately 10 minutes. I also find that no property wasmoved or removed from the residence during the course of the clearing search.

The residence was then secured and a search laterconducted after the issuing Justice granted the application for a warrant to search. At all material times, the police believed that thewarrant issued by the Justice was a valid warrant.

[ 95 ] But for the conduct of Constable Sinclair, the police otherwise conducted themselves in a professional manner. In particular, I find Constable Adzijaj conducted himself professionally. His rejected suggestion that they contact the applicant by cell phone and request that he present himself at the door of his residence would have been a far preferable, and safer, strategy. (

b) Seriousness of the Charter - Infringing Conduct [ 96 ] I find that Constable Sinclair acted unilaterally and contrary to senior officers’ directions by entering the residence through the patio door. This was not part of the plan. His entry into the residence, while opportunistic, was potentially dangerous. Not only did he endanger himself, but he also endangered Constable Adzijaj. [ 97 ] Constable Sinclair is physically an imposing individual. In fact, he testified that he is often used in curfew checks because of his size.

However, I had a clear impression as he testified that he is not particularly sophisticated when it comes to strategic planning. In addition, he appeared to lack insight into the importance of warrants and the importance of the right guaranteed by s. 8 of the Charter . [ 98 ] It is the conduct of Constable Sinclair that calls into question whether the court ought to disassociate itself from the police conduct at the time of the s. 8 Charter breaches. [ 99 ] In my assessment, I note that, while not the best plan, the curfew check was not illegal.

The applicant was subject to a court- ordered curfew. [ 100 ] In addition, I take into account that there was a sense of urgency in planning the arrest of the applicant. Two robberies had taken place involving a firearm allegedly brandished by the applicant. The most recent robbery, of the Deer Lake Market, had occurred one day prior to the arrest of the applicant. [ 101 ] I find that Constable Sinclair’s conduct while opportunistic, was not wilful. He tried the patio door and found that it was not secure. Constable Sinclair did not have to apply any significant force to open the door.

While I am dubious, I am not prepared to reject Constable Sinclair’s evidence that he entered through the patio door to give the applicant the opportunity to present himself at the door of his suite to confirm curfew compliance. [ 102 ] I find that, while unlawful, Constable Sinclair’s entry into the applicant’s room and his subsequent arrest of the applicant did not entail conduct that was inhumane or degrading. [ 103 ] I do not find that Constable Sinclair’s conduct is indicative of a pattern of systemic or institutional police disregard of constitutional rights.

In Constable Sinclair’s mind he believed his conduct was appropriate. His conduct was negligent and therefore cannot be equated to good faith. I am supported in this finding from his evidence in cross-examination that he would not do anything differently under similar circumstances. [ 104 ] In conclusion, Constable Sinclair’s Charter- infringing conduct was serious. It impacted on the privacy interests of the applicant. Constable Sinclair acted contrary to, or without, senior officers’ directions.

Had Constable Sinclair’s conduct in entering the residence had the approval, either implicitly or expressly, of a senior officer, then the overall state conduct would fall at the serious end of spectrum and would likely result in the court having to disassociate itself from the state conduct by excluding the evidence obtained from the search of the residence. [ 105 ] When assessing the totality of the state conduct in this case, I am not prepared to find that the admission of evidence obtained from the search of the residence will likely have a negative impact on the public’s confidence in the rule of law and will, thereby, risk bringing the administration of justice into disrepute. [ 106 ] This factor favours inclusion. (

c) Impact of Charter Breach on Accused’s Charter - Protected Interests [ 107 ] The applicant asserts that the unwarranted police intrusion into his residence was significant and unjustified. The respondent has essentially conceded that point. [ 108 ] The case law more or less universally recognizes that an individual is entitled to a high expectation of privacy in his or her home: R. v. Vanhorn , 2017 BCSC 379 , at paras. 38-39 . [ 109 ] In considering the impact of the warrantless entry, I note that the applicant was alone in his room.

The presence of other family members, and the possibility of the unlawful intrusion causing an impact on the applicant’s relationship with them, is not a factor in this case: R. v. Sunner , [2017] BCJ No. 2708 , at para. 26 . [ 110 ] In addition, the warrantless entry did not result in the seizure of any property from the residence until such time as the warrant was issued by the Justice. [ 111 ] Another factor to consider is the nature of the intrusiveness of the warrantless entry into the residence.

Apart from the intrusion on the applicant’s privacy interests, there is no evidence of any further impact upon the applicant’s dignity. [ 112 ] I find that the unwarranted police intrusion into the residence of the applicant was significant and unjustified. However, I do not find that it was profoundly intrusive to the extent of establishing that the state conduct would bring the administration of justice into disrepute. [ 113 ] This factor favours inclusion. (

d) Society’s Interest in Adjudication of the Case on its Merits

[ 114 ] Under this line of inquiry, the court must assess “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion”: Grant , supra , at para. 79 . [ 115 ] One of the factors to be considered under this line of inquiry is the reliability of the evidence.

In this case, the evidence in question is real evidence and highly reliable. [ 116 ] In addition, I take in account the fact that the evidence in question existed independent of the s. 8 Charter breaches. [ 117 ] The seriousness of the charges is another factor that I take into account. The more serious the charges, the stronger the public expectation that those charges should be tried and determined on the merits.

The seriousness of the charges tends to weigh in favour of admitting the evidence, particularly where it is reliable and could have a significant impact on the case: Sunner , supra , at para. 33. [ 118 ] At the same time, I do not allow this conclusion to overwhelm the s. 24(2) analysis. I recognize that the third line of the Grant inquiry requires that I take into account the “… long-term implication for the repute of the administration of justice, and not the public’s short-term desire for a conviction”: Vanhorn , supra , at para. 47 . [ 119 ] This factor favours inclusion. VI.

CONCLUSION [ 120 ] In balancing the Grant factors, I find that the evidence obtained from the search of the applicant’s residence is admissible. _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia CORRIGENDUM – Released January 17, 2019 In the Ruling on Charter Voir Dire dated December 24, 2018, the following change has been made: [1] On page 20, at paragraph 96, third sentence, the word “and” should be deleted.

The sentence should now read as follows: [96] … His entry into the residence, while opportunistic, was potentially dangerous. … _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia