R. v. Edwardsen, 2017 BCSC 1578

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Edwardsen, 2017 BCSC 1578 Date: 20170906 Docket: 30870-2 Registry: Terrace Regina v. David Harry Edwardsen Before: The Honourable Mr. Justice Punnett Reasons for Judgment Vukelich Application Counsel for the Crown: J.N. Walker Counsel for the Defence: B. Anderson Place and Date of Hearing: Prince Rupert June 6, 2017 Terrace June 7, 2017 Place and Date of Judgment: Terrace, B.C. September 6, 2017 Introduction [ 1 ] The defence has filed, on the fourth day of trial, an application for extensive relief under the Charter . A Vukelich hearing was held.

I dismissed the application and ordered that the trial proceed with reasons to follow. These are those reasons. [ 2 ] I will first review the background, then assess the application on its merits and finally address the broader issue of delay raised by the Crown. Background [ 3 ] Mr. Edwardsen is charged with numerous drug and firearms offences. The indictment is dated May 6th, 2014 and relates to offences alleged to have occurred in 2012. [ 4 ] After many delays the trial of this matter commenced on June 9, 2016, and continued on June 10, 2016 and June 26, 2016.

It was to continue on June 27, 2016 and thereafter however on that day the trial was adjourned in the middle of cross-examination of a Crown witness after Mr. Edwardsen discharged his counsel, Mr. Westlake, Q.C. and Mr. Song. [ 5 ] Mr. Edwardsen retained new counsel, Mr. Silverman, in early September 2016. A new trial date was set and the trial was to proceed for one week in January 2017 and one week in February 2017. [ 6 ] The week before the trial was to commence Mr. Silverman withdrew as counsel as Mr. Edwardsen was not providing him with instructions. On the first day of trial Mr.

Edwardsen appeared on his own behalf and sought an adjournment. The January week was adjourned to enable Mr. Edwardsen to retain new counsel. The February week was not adjourned. [ 7 ] However, the weeks of February 6, 2017 and February 20-22, 2017 were adjourned on February 6, 2017 because on Friday, February 3, 2017, just before 4:00 p.m., Mr. Edwardsen retained Mr. Anderson. Prior to granting Mr. Edwardsen’s adjournment, the Court heard from Mr. Anderson. Mr.

Anderson indicated that he was available for a week in June 2017 that had been reserved after the January week was lost and would make himself available for an additional week. While Mr. Anderson did not have the disclosure or have a complete understanding of the history of the matter, it was clear that the trial had commenced and that the intention was to continue for two weeks in June, 2017 (June 12-16 and June 19-23). [ 8 ] On April 28, 2017, the Crown first became aware that it was possible that Mr. Edwardsen did not intend to proceed with the trial as scheduled. In correspondence to the Crown, Mr.

Anderson indicated it was his intention to bring Charter applications. In reply, on May 1, 2017, Crown counsel advised that he was opposed to any Charter applications proceeding. In addition, as requested, Crown counsel provided a list of witnesses that the Crown intended to call at trial. [ 9 ] During the pre-trial conference held on May 9, 2017, Mr. Anderson outlined his proposed Charter motions for the first time. Again, the Crown voiced its objection to the hearing of any Charter motions and asked the Court to set time aside for Mr. Edwardsen’s

Vukelich application. June 6 and 7, 2017 were reserved for that purpose. [10] During the pre-trial conference Crown counsel also expressed concern that if the applications were granted witnesses wouldhave to be recalled. Counsel for Mr. Edwardsen advised that he anticipated that only the witnesses the Crown intended to call at trialwould be required. Upon review of the Charter notice, it is apparent that many other witnesses may in fact be required, including theaffiant Constable (now Corporal) Etele.

None of these witnesses work in or near Terrace, and other than the witnesses set out in theCrown’s letter of May 1, 2017 no other witnesses have been notified. Concerns were also expressed that the time set for trial for the lasttwo weeks of June would no longer be adequate. [11] The Crown objects to any Charter motions being heard as the trial has commenced and any such applications could and shouldhave been heard well in advance of trial.

The Defence Application [12] The court has an obligation to control the course of proceedings before it in the interests of the effective and efficient operationof the justice system (R. v. Pires; R. v. Lising, 2005 SCC 66 at para. 35). In recognition of that obligation a court may decline a requestedevidentiary hearing unless the defence meets the threshold requirement that an evidentiary hearing will assist in the “proper trial of thereal issues”: R. v.

Vukelich (1996), 108 C.C.C. (3d) (B.C.C.A.). [13] The accused must with reasonable particularity provide the grounds upon which the application to exclude evidence is madeand the facts in support that are alleged to disclose a Charter violation: see R. v. Wilder, 2004 BCSC 304 at para. 31, citing R. v. Hamill(1984), 14 C.C.C. (3d) 388 (B.C. C.A.), aff’d on other grounds, (SCC), 33 C.C.C. (3d) 110 (S.C.C.). [14] The defence seeks:

a) An order quashing the general warrant, (General Warrant #1), issued on April 24,2012 with respect to Lot B, Plan 9106B, DistrictLot 5130, Range 5, Coast Range 5 Land District, Except Plan 10550: PID 006-364-390 (hereinafter “Plan 9106B”);

b) An order setting aside the General Warrant #2 and General Video Warrant both issued July 27, 2012 with respect to Plan 9106B;

c) An order setting aside the Search Warrant to search Plan 9106B issued September 18, 2012;

d) An order granting leave to cross-examine the Affiant, Corporal Michael Etele;

e) An order declaring the Applicant’s rights as protected by

section 8 of the Charter were breached; and,

f) An order pursuant to section 24(2) for the exclusion of all evidence gathered at Plan 9106B, 4410 Bohler Road, Terrace, B.C.(“4410 Bohler”), and 604 Old Lakelse Lake Drive, Terrace B.C. (“604 OLLD”). [15] As a result he seeks to enter into a voir dire for the purposes of challenging General Warrant #1, General Warrant #2, and thePlan 9106B Search Warrant. An Order Quashing General Warrant #1 Issued April 24, 2012and Setting Aside General Warrant #2 and General VideoWarrant issued July 27 2012 Respecting Plan 9106B [16] Plan 9106B is properly registered to the accused’s son, Dustin Edwardsen.

It is located approximately one-quarter mile off OldLakelse Lake Drive in Terrace, B.C. There is a large cleared area with about 50 vehicles in disrepair, one house and another outbuilding.It is not visible from Old Lakelse Lake Drive and is entirely surrounded by woodland and swamp. [17] Initially the police obtained from a Provincial Court Judge, General Warrant #1, to covertly enter Plan 9106B to conductsurveillance and to install a video camera on the property.

However the police realized that General Warrant #1 was obtained under s.487.01(1) of the Criminal Code and should have been obtained under s. 487.01(4) before a Superior Court Judge. As a result theysubsequently obtained General Warrant #2 and General Video Warrant, both issued on July 27, 2012. [18] Over the subsequent months the accused was observed attending at the property and working on a new structure being built. Inaddition he was seen entering the residential building where the marihuana grow operation was conducted.

He was also connected to theproperty by paperwork relating to Plan 9106B found in his home office at 604 Old Lakelse Lake Drive and by a key which opened thepadlock on the grow operation building. [19] The accused alleges that his reasonable expectation of privacy has been breached with respect to Plan 9106B because both hisinformational and territorial privacy interests were engaged. He submits he was present on at least 14 occasions when the policeconducted their searches and was not in public view. [20] The Crown submits that, firstly, Mr.

Edwardsen has not established that he has standing to challenge the authorizationsrespecting this property and even if he does, the issues he raises are not of sufficient merit to warrant an inquiry. Law on Expectation of Privacy and the Search Warrant to Search Plan 9106B

Standing [21] The accused must establish that he has “standing” with respect to the place searched or the item or items seized if he is to seek avoir dire challenging the search. As s. 8 of the Charter protects people and not property, standing does not relate to a proprietary interestin the place searched or the item or items seized but only “a reasonable expectation of privacy” with respect to it: R. v. Plant, (SCC), [1993] 3 S.C.R. 281. [22] The onus is on Mr. Edwardsen to demonstrate an evidentiary basis capable of supporting a conclusion that he had a reasonableexpectation of privacy: R. v.

Stein, 2010 BCCA 173 at para. 22. [23] R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, 104 C.C.C. (3d) 136, is the leading authority on the right of anaccused to challenge the admissibility of evidence obtained as a result of a search of a third party’s premises. The applicable principleswere found to be: [45] … 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 619. 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra. 3.

The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. See Pugliese, supra. 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation ofprivacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra. 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, atp. 54, and Wong, supra, at p. 62. 6.

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256. 7.

If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determinewhether the search was conducted in a reasonable manner. [24] The accused argues that he was in fact in control referring to evidence that he controlled the activities of others on the property,evidence of Dustin Edwardsen that his father made the payments on the property and the accused’s knowledge of the receipts relating tothe property that were in his possession. [25] The defence submits that there are different privacy interests that may be at play in any given case. In R. v.

Tessling, 2004 SCC67, [2004] 3 S.C.R. 432, the Court stated that privacy interests protected by s. 8 include: personal privacy, territorial privacy, andinformational privacy. These privacy interests may overlap depending on the nature of the search.

At para. 23 the Court noted thatinformation privacy has been defined to include “the claim of individuals, groups, or institutions to determine for themselves when, how,and to what extent information about them is communicated to others”. [26] Whereas Edwards focused on territorial privacy, the Court in Tessling provided additional factors relevant to the analysis ofinformational privacy. The additional factors are:

a) The subject of the search;

b) Whether the applicant has a direct interest in the subject matter;

c) Whether the subject matter was in public view;

d) Whether the police technique was intrusive to the privacy interest; and (

e) Whether the search revealed any intimate details or information of a biographical nature about the applicant. [27] The applicant submits that both his informational and territorial privacy interests are engaged.

[ 28 ] As noted Mr. Edwardsen submits that he was present on at least 14 occasions when the police conducted their searches and that he was not in “public view” when the searches were conducted. He argues that the technique employed was invasive and extraordinary given it involved multiple covert entries, the surreptitious installation of static video cameras and the surreptitious collection of real evidence.

As a result the searches revealed personal information about him, who he was associating with, the manner in which he was communicating with them, his activities at Plan 9106B and the police examination of items he was storing there. He also submits the isolated nature of the property itself confirmed a reasonable expectation of privacy. [ 29 ] He particularizes the police observations of his presence at the premises and other evidence showing his connection to the property as follows:

a) On June 12, 2012, Cst. Richards covertly entered the property and observed a Caterpillar excavator registered to Skeena Disposal with the applicant listed as the primary operator;

b) On June 19, 2012, Cst. Couture observed the applicant working with Dustin Edwardsen on the new structure;

c) On July 13, 2012, Sgt. Arsenault observed the applicant drive his White Chevrolet Pickup into the access driveway at Plan 9106B. On July 18, 2012, Cst. Richards observed the applicant’s white Chevy Pick-up parked on the property;

d) The applicant’s Blue F-350 Pick-up was tracked to the property on April 19th, 20th, May 4th, and July 18, 2012;

e) On August 12, 2012, the applicant was observed on video attending the property at Plan 9106B and unloading items in the new structure ;

f) On August 13, 2012, the applicant was observed on video attending the property and entering the new structure ;

g) On August 14, 2012, the applicant was observed on video attending the property and working on the new structure. He appeared to be “directing” an unidentified male also working on the structure ;

h) On August 17, 2012, the applicant was observed on video unloading a generator into the new structure;

i) On August 19, 2012, the applicant was observed on video working on the new structure;

j) On August 20, 2012, the applicant was observed on video working on the new structure and cleaning up items;

k) On August 21, 2012, the applicant was observed by video opening and entering the new structure. He appeared to be giving instructions to another male who was present;

l) On August 23, 2012, the applicant was observed on video attending the property;

m) On August 24, 2012, the applicant was observed on video carrying a large green water tank into the new structure with another male ;

n) On August 26, 2012, the applicant was observed on video cleaning, attending the property twice, cleaning up and unloading a fuel tank at the new structure;

o) On August 28, 2012, the applicant was observed on video attending the property;

p) On August 29, 2012, the applicant was observed on video operating a crane at the new structure. The applicant “appeared to be directing” other males who were present;

q) On September 9, 2012, the applicant was observed on video attending the property, and specifically entering the residential type building where the marihuana grow operation was ultimately recovered ( ITO Plan B Search Warrant at 222.4);

r) On September 11, 2012, the applicant was observed on video attending the property and loading items into the new structure ;

s) On September 12, 2012, the applicant was observed on video at the grow operation on the property. The applicant unlocked the door to the building, and locked the door when he left. He was observed on video connecting a hose to the exterior of that building;

t) On September 19, 2012, upon execution of the search warrant at the applicant’s dwelling house, investigators seized an envelope labelled “dustin’s property” which was located on the top left hand side of a desk in the office area of the residence. Inside the envelope were numerous receipts made out in the name of Dustin Edwardsen, as well as one receipt made out in the name of the Applicant.

u) A key was also seized from a desk drawer in the office area, in the same drawer as the applicant’s medical marihuana license. That key was described by Cpl. Christenson as a “master key”. Corporal Christenson unlocked a padlock that had been found by the police on the marihuana grow operation at Plan 9106B using that key. In addition:

a) Mr. Edwardsen was the listed principle operator (but not the owner) of a backhoe located on the property;

b) The state of title certificate for the property was located in Mr. Edwardsen’s residence. [ 30 ] However, the evidence also reveals that:

a) The owner of the property was Dustin Edwardsen;

b) The receipts for payment in relation to the property were made out to Dustin Edwardsen;

c) Other people were observed inside the grow operation including Dustin Edwardsen, Dillon Edwardsen, Monja Wilson, Stephen Meier, and Michael Glover;

d) Monja Wilson was observed using a key to access the grow operation;

e) Dustin Edwardsen was observed using a key to access the grow operation;

f) Dustin Edwardsen accessed the grow operation four times;

g) Monja Wilson six times, and the accused four times. [ 31 ] The accused notes that according to Informant G, upon whose information Cpl. Etele relied, the defence had historically used to the property to “store cars and hide things.” In addition the accused submits that the police observations illustrate that he was directing other individuals at the property.

He also argues that given the property was described by the police as “impossible” to observe by way of conventional surveillance techniques, the nature of the property itself confirms a reasonable expectation of privacy. [ 32 ] The evidence demonstrates that the accused and several other people were involved in the production and possession of marihuana. While Mr. Edwardsen had a key which gave him the ability to access the grow operation, there is no evidence that he had the ability to regulate access. He did not have exclusive access to the grow building: R. v. Merelles, 2016 ONCA 647 at paras. 18-23 .

Mere presence coupled with a key, documents in his possession, but in the name of the owner, is not sufficient to establish a reasonable expectation of privacy: R. v. Novak, 2000 BCCA 257 at paras. 24-30 ; see also: R. v. Khuc, 2000 BCCA 20 at paras. 10 and 22-31 . [ 33 ] Mr. Edwardsen may have had a subjective expectation of privacy in that he possessed a key and could come and go as he pleased. However, this is not the issue. As seen in Edwards , the accused also, likely, had a subjective expectation of privacy in his girlfriend’s apartment. While this was a factor, it was not determinative.

Rather, the test requires that the expectation be objectively reasonable. [ 34 ] The fact that Mr. Edwardsen was a target of the investigation does not give him standing nor does the Crown theory respecting his involvement in the grow operation establish standing ( Stein , para. 21 ). [ 35 ] In addition to the substantive arguments raised in respect of the issue of standing, the procedural history is also relevant:

a) On April 24, 2015, on behalf of Mr. Edwardsen, Mr. Westlake provided Charter notice to the Crown that he intended to challenge the general warrants and search warrant issued in relation to this property.

b) On June 8, 2015, Crown counsel wrote to Mr. Westlake and advised that the Crown did not concede that Mr. Edwardsen had standing to challenge the warrants issued in relation to Plan 9106B.

c) On April 4, and April 21, 2016 Crown counsel wrote to Mr. Westlake and Mr. Song suggesting that available court time be used for Mr. Edwardsen’s standing application. Crown counsel did not receive a response to this suggestion.

d) On April 25, 2016, counsel appeared before the Court to argue the validity of the tracking warrant. One week of court time had been set aside but it was agreed that less than two days would be required. In Court on April 25, 2016, Crown counsel suggested that the remaining time that week be used for Mr. Edwardsen’s standing argument. Defence counsel declined to advance the argument. [ 36 ] Despite the above the accused now seeks to challenge these warrants. He was told by the Crown over two years ago that if he intended to challenge the warrants that the Crown would oppose his standing to do so.

He was encouraged to make the application. There was court time available to do so. He chose not to, effectively abandoning the application. Now that the trial has started, he seeks to interrupt and adjourn the trial to advance an argument that he abandoned. Retaining new counsel does not give him the right to start over. [ 37 ] I conclude in the circumstances that he does not have standing and as a result, neither does he have an expectation of privacy in the subject of the warrants.

As a result his application is dismissed. [ 38 ] In the event that I am incorrect in that conclusion, and he does have standing to challenge General Warrant #1, the following is my consideration of the issues raised by Mr. Edwardsen. Application to Quash General Warrant #1 [ 39 ] The accused seeks to quash General Warrant #1 issued on April 24, 2012, and advances the following arguments:

a) a Provincial Court Judge did not have the jurisdiction to issue the warrant:

b) it was issued without regard to the wiretap provisions; and

c) it was issued without reasonable and probable grounds. The accused argues that since one portion of the warrant was improperly issued the entire warrant ought to be quashed. [ 40 ] Notice of an intention to challenge this warrant was previously given and then abandoned. In fact, the argument proposed to be advanced now was identified in the notice dated April 23, 2015, at page 9. It was alleged that because the warrant was defective in relation to authorizing video surveillance, the entire warrant ought to be quashed. [ 41 ] Turning to the issues raised respecting General Warrant #1. [ 42 ] While

section 487.01(1) of the Criminal Code authorizes a Provincial Court Judge to issue a general warrant, the Crown concedes that only a Superior Court Justice can issue a general video warrant under s. 487.01(4).

[ 43 ] A judge who issues a general warrant authorizing video surveillance in circumstances where a person has a reasonable expectation of privacy must be satisfied that the affiant has demonstrated “investigative necessity”. The affidavit sworn in support of this warrant did not address “investigative necessity.” [ 44 ] In any event, the investigators did not use the video surveillance obtained as a result of the first general warrant because they recognized that the warrant was not properly obtained. Nor of course does the Crown seek to tender this evidence. As a result there is no evidence to exclude.

In addition in subsequent applications for warrants the affiant disclosed what had transpired but did not rely on any of the video. [ 45 ] The notice to challenge this authorization on the above basis was given April 23, 2015. No particulars were provided hence the accused failed to articulate in that application a basis for entering into a voir dire . [ 46 ] Further, in respect of the issue concerning invalidity arising from an erroneous, severable video authorization, I noted that an invalid portion of a warrant does not mean the entire authorization should be quashed: R. v. Whitaker , 2008 BCCA 174 .

General Warrant #2 and the Search Warrant [ 47 ] The defence relies on the fact that evidence from the first flawed warrant was relied on for General Warrant #2. This argument however assumes that the observations made by the police under General Warrant #1 were unlawful. Since the evidence relied on did not relate to anything gathered by the unauthorized video and the fact that such evidence can be severed, there is no merit to this submission.

An Order Respecting Breach of s. 8 of the Charter - Other Alleged s. 8 Charter Breaches [ 48 ] The defence raises a further 14 alleged Charter breaches in their notice of application. Warrantless Video Surveillance at Mr. Edwardsen’s Residence (604 Old Lakelse Lake Drive) [ 49 ] On December 14, 2011 a video camera was installed to conduct surveillance of Mr. Edwardsen’s residence. It was removed on September 19, 2012. The camera allowed investigators to conduct surveillance of the dwelling remotely. [ 50 ] A similar static camera was also directed at a property used by Mr.

Edwardsen on River Drive. [ 51 ] The defence submits that since Cpl. Etele relied on such ongoing video surveillance in his applications for judicial authorizations, he was required to disclose that such was the manner in which he observed the properties. That is that he relied on video not personal observations at the location. They also submit that the police failed to obtain a judicial authorization to use such ongoing video surveillance. [ 52 ] The defence relies on R. v.

Wong , 2017 BCSC 306 , in which the court found that a camera focussed on the back yard of the accuseds’ residence and which was recording 24 hours a day, 7 days a week, violated their s. 8 Charter rights. Wong is a recent case and has only been considered in R. v. Piasecki , 2017 ABQB 192 at paras. 57-58 . [ 53 ] The ratio decidendi of Wong is based on the fact that the video camera was recording all the time and thereby creating a permanent record of the accuseds’ movements (see paras. 38-41, 46 and 47). This

interpretation is confirmed in Piasecki . [ 54 ] In the case at bar no recordings were made. As a result Wong is distinguishable on its facts. In my view a warrant was not required to conduct surveillance of 604 Old Lakelse Lake Drive and the River Drive property in the manner utilized here. The cameras were not located on the properties in question and provided a view the same as would be available to an officer conducting physical surveillance. There is no merit to this aspect of the Charter challenge.

Trespass by Constable Christensen on July 23, 2012 on River Drive Property [ 55 ] The defence argues that the River Drive property was surrounded by a dense shrub and submits that Cst. Christensen could not have seen the front porch or lawn without trespassing. The defence observes that Cst. Christensen did not state in his notes whether or not he was on the property. He also argues that the photos indicate the observations could not be made without trespassing. [ 56 ] This assertion is based on speculation and as a result the accused has not shown a basis for a voir dire on the issue.

Warrantless Entry to a Shed at Plan 9106B [ 57 ] As noted earlier Mr. Edwardsen does not have standing to challenge the execution of the warrant at Plan 9106B. In addition the allegation that the officers entered a shed during execution of General Warrant #2 on May 23, 2012 is based on speculation and therefore lacks merit. Seizure of Marihuana Plant on June 12, 2012 Search at Plan 9106B

[58] Firstly, Mr. Edwardsen does not have standing to challenge the execution of General Warrant #2 at Plan 9106B. While he hasnot provided any authority for the proposition that officers cannot seize a marihuana plant located outside in plain view the Crown hasaccepted this may be an arguable issue. However, as the excision of the impugned conduct does not invalidate the warrant and theCrown is not tendering the evidence, a voir dire is not justified.

While the defence argues it is relevant as part of the cumulative nature ofthe breaches, given my findings on the alleged breaches generally that argument fails. [59] As a result Mr. Edwardsen has failed “to show a reasonable likelihood that the hearing can assist in determining the issuesbefore the court”: see Pires at para. 35. Search Warrant: Knock and Announce issue [60] The defence submits that the police failed to knock before entering and announcing their presence.

The primary difficulty withthis application is that the evidence the accused now seeks to exclude as a result of the alleged breach has already been tendered in thetrial. [61] On September 19, 2012, Cpl. Christenson prepared a “Search Warrant Planning Report” for the search of 604 Old Lakelse LakeDrive. In an entry opposite “Forced Entry?” Corporal Christenson wrote, “YES (if needed), Knock and announce.” [62] On September 19, 2012, at approximately 11:10 hours Cpl.

Christenson together with five members of the North CoastEmergency Response Team with firearms drawn executed the search warrant at 604 Old Lakelse Lake Drive. [63] As the door had a glass pane the police could see two people standing by the door. As their presence was apparent the policechose not to knock. They were also aware from information from an informer that Mr. Edwardsen kept a rifle by the front door that wasbelieved to be loaded. They did not conduct a “hard entry”. They opened the door and announced their presence allowing Mr.

Edwardsento walk down the stairs to be arrested without incident. [64] The defence submits the failure to knock and announce their presence was a departure from the “knock and announce rule” andas a result the entry was unreasonable. The accused relies on R. v. Fan, 2013 BCSC 1406. In Fan the police knocked at the door to theresidence. The issue was whether they provided sufficient time for the occupants to respond before entry. The rule respecting entry whenexecuting a warrant is found in Eccles v.

Bourque, (SCC), [1975] 2 S.C.R. 739 at 746, where the Court stated: Except in exigent circumstances, the police officers must make an announcement prior to entry … In the ordinary case police officers,before forcing entry, should give (

i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifyingthemselves as law enforcement officers and (iii) notice of purpose by stating a lawful reason for entry. [65] In R. v. Cornell, 2010 SCC 31, the Court stated: 24. Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannotbe expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45.

It is often said of security measures that, if something happens, themeasures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair andinappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluidcircumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balancethe rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback. [66] In R. v.

Kwiatkowski, 2010 BCCA 124 at para. 58, the Court of Appeal noted that on entry to a greenhouse where the policeofficer simply walked through an open door and announced his presence, it was not necessary to first alert the individual inside findingsuch was impractical, and an invitation to those present to flee, destroy evidence or set up an ambush. While it did not relate to aresidence the principal of reasonableness applies. [67] In this case those inside would be aware of the police at the door as they were in uniform and could be seen through the door.The police waited for Mr.

Edwardsen to come to them. [68] The purpose of knocking is to give residents notice that the police are present and to give the inhabitants an opportunity torespond. Given the glass pane in the door through which the police could see the inhabitants and they could see the police, the policefound it unnecessary to knock as such would be superfluous. At most the failure to knock would only be a technical violation of the rule.The actions of the police were not unreasonable. [69] In addition there were concerns respecting the allegation of a possible loaded firearm by the door. Failure to Allow Mr.

Edwardsen to Read a Copy of the Warrant [70] The defence asserts that the police officer at the time of Mr. Edwardsen’s arrest failed to provide a copy of the warrant to himforthwith. Upon Mr. Edwardsen coming down the stairs to the entrance to the house he was placed on the floor and placed under arrest.After the residence was secure and Mr. Edwardsen had been placed in a police vehicle he was provided with the warrant. Mr.

Edwardsenrequested his reading glasses and a police officer obtained them for him from the residence. [71] The defence submits this raises a significant issue noting the obligation of the police to have the warrant with them at the time itis executed and their obligation to produce it when requested to do so. They refer to Fan at para. 78 which B.J. Brown J. noted: In the case at bar, while the police had a search warrant with them, they neglected to show or read it to the accused.

Thus, by not giving afacsimile of the search warrant “as soon as practicable” after entering the place or premises, the police breached s. 487.1(7) of the

Criminal Code and thereby breached s. 8 Charter rights. [ 72 ] The Crown argues that the warrant was provided as soon as practicable. In this case the police were executing a warrant for a large residence, on a large property. A number of people were present in the residence and there were firearms in plain view. They submit that given the nature of the offences under investigation and the information the police had about Mr. Edwardsen it was reasonable to conclude they had safety and security concerns to address. As a result they searched the entire residence before addressing Mr.

Edwardsen’s request to see the warrant. The police treated Mr. Edwardsen and others in his residence with respect and the actions of the police were cognizant of those individual’s Charter rights. Mr. Edwardsen read the warrant within 26 minutes of his arrest. [ 73 ] The defence has not provided any authority requiring the police to permit an accused to read a warrant forthwith. Nor does s. 29 of the Criminal Code require such. [ 74 ] In my view given the circumstances noted, the warrant was provided to Mr.

Edwardsen “as soon as practicable.” It was not unreasonable for the police to complete their search of the home given the presence of others, the anticipated presence of firearms and their knowledge of Mr. Edwardsen’s involvement in the drug trade. Overseizures [ 75 ] Mr. Edwardsen seeks to argue that items were seized during the execution of the search warrant at Mr. Edwardsen’s residence, that were not authorized by the warrant, in breach of the Charter. This application was already brought and then abandoned by Mr. Edwardsen .

In addition the evidence to be tendered from the search of this residence has already been tendered in the trial. Warrantless Entry and Search of Three Locked Trailers on the Property [ 76 ] There is no material supporting this allegation. In any event given the Crown is not tendering any evidence arising from such searches, if they occurred, there is no evidence to exclude. Conservation Officer Attendance at Property [ 77 ] The search of the accused’s residence revealed numerous stuffed animals, which may have been obtained unlawfully. The police enlisted a conservation officer to assist.

The officer attended and took 21 photographs including a photo of the accused’s hunting licence. The defence asserts that doing so “constitutes a clear breach of the Applicant’s rights.” No authority for that assertion is provided. [ 78 ] The defence argues that the conservation officer was not there for the purposes of the warrant and his presence had nothing to do with why the police were there. [ 79 ]

Section 12 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, provides as follows: For the purpose of exercising any of the powers described in

section 11, a peace officer may (

a) enlist such assistance as the officer deems necessary; and (

b) use as much force as is necessary in the circumstances. [ 80 ] The scope of s. 12(

a) was considered in R. v. Tran , 2006 BCPC 54 , as follows: 18. These decisions are contrary to the conclusions in Huang and Bui . The differences in the result is the reliance placed on other provisions of the CDSA . Particularly s. 11(6) (c)(

d) and s. 11(8). These sections, including s.12 (

a) read as follows: S. 11(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant, (

c) any thing that the peace officer believes on reasonable grounds is offence-related property; or (

d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act. S. 11(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, in addition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence. S. 12 For the purpose of exercising any of the powers described in

section 11, a peace officer may (

a) enlist such assistance as the officer deems necessary 19. In R. v. Huang , Schmidt J. reviewed s 11.(8) and stated the following at paragraphs 44 and 45: In the absence of case authority, a reading of section 11 (8) appears to permit the seizing of evidence that an officer believes on reasonable grounds will afford evidence in respect of an offence. The measuring of the amount of electricity stolen by way of the bypass is seizing evidence related to an offence under the Criminal Code . Other subsections in

section 11 refer to offences under the Controlled Drugs and Substances Act but subsection (8) does not and it must be concluded that the intention of Parliament in s. 11(8) was to authorize the seizure of evidence with respect to offences other than offences under the Controlled Drugs and Substances Act only.

The court finds that the rights of the accused to be free from unreasonable search and seizure were not infringed by the measuring of the amount of electricity being bypassed and not registered on the usage meter in the grow operation, but were the legitimate exercise of the duties contained in s.11 (8) of the Controlled Drugs and Substances Act only. 20. R. v. Bui adopted a different approach and focused on s. 11(6) and s. 12. Again Waddell was present when the residence searched. Edwards, J. said this at paragraphs 133 to 135, 139 and 140: Mr.

Waddell removed a bypass in this case and turned it over to Constable Leeson. Constable Leeson testified that the bypass was discovered and photographed by police before Mr. Waddell arrived. He noted Mr. Waddell removed it and turned it over to him at 08:35. He acknowledged that Mr. Waddell assisted the police in the execution of the warrant. In cases such as this an expert electrician is used to check "grow op" related electrical equipment and remove bypasses because these can be dangerous. Mr.

Waddell also participated in the investigation in order to catalogue the electrical equipment and estimate the amount of electricity stolen through the bypass. That is to provide a report to support a charge of theft of electricity. The involvement of Mr. Waddell in this capacity, two or three hours after the initial police entry, and after the bypass and other electrical equipment related to the "grow op" were discovered by police, cannot have compromised any reasonable privacy expectation of the accused. He did not discover any evidence. He catalogued and analyzed evidence already discovered by the police.

The evidence establishes that electricity bypasses are commonly associated with "grow ops". They are therefore evidence subject to seizure under s.11 (6) of the CDSA . In light of this evidence and the possible danger associated with such a seizure, and the evidence that electricians are routinely involved in the execution of warrants to remove bypasses safely, it is a fair inference that the peace officers executing the warrant deemed it necessary to enlist Mr.

Waddell to remove the bypass safely and to determine what lights and fans were connected to the bypass, that is, to isolate and identify "offence related property". I find Mr. Waddell's presence for that purpose is authorized by the provisions of the CDSA just cited. I find it did not transform the search and seizure pursuant to the warrant into one which was unreasonable under s 8 of the Charter . In short, Mr. Waddell was legally present at the request of the police during the execution of the warrant. 21.

It is of note that Bui is a Supreme Court decision and was not referred to in any of the other Provincial Court cases. As a point of interest Waddell is the same witness in all of these cases. In the Bui and the Huang decisions, Waddell's evidence was found to be admissible, but for different reasons based on the operation of s. 11(6)(c) (

d) and s. 11(8) . A review of these two decisions do not put them in conflict with one another. Indeed their

interpretation of the respective subsections [complement] each other. In order to carry out their duties the police, through s. 12 (a), are given the legal authority to enlist the help of others for the purpose of collecting evidence, not only for offence related property but as well evidence for other potential charges other than that contained in the CDSA . For the hydro representative the evidence gathered was relevant not only to the CDSA charge but as well the Criminal Code offence of theft of electricity.

In either instance the hydro representative had not stepped beyond the bounds authorized by legislation whether it be his discovery of the electrical bypass or his making an assessment of the evidence as discovered by the police for the purposes of determining the excess electrical consumption. 22. Furthermore, the ambit of the assistance provided also includes safety considerations. The police are entitled to ensure that their work is conducted in as safe a manner as possible.

Having secured the residence there are, in this instance, obvious dangers in the collection of evidence given the extensive electrical alterations, structural changes from the venting system and the presence of abundant quantities of plant nutrient chemicals. It was a prudent step to enlist the help of a hydro representative, the fire department and the by law enforcement officers to ensure a safe environment in the collection of evidence. The police cannot reasonably be expected to have the expertise of electricians or firemen.

They do not possess the knowledge or necessary equipment to address any potential electrical, fire, chemical or structural hazards. 23. It is noted the police did not directly supervise these individuals who were enlisted to assist them. In spite of this I do not find that the search was thus rendered unreasonable. It was not as if there was a complete void of control over their conduct. The residence was very crowded with 5 officers involved in the search.

It is reasonable to state there would be some measure of scrutiny as they would have crossed paths with the police in the course of rendering assistance. 24 Upon the whole of the evidence I find the evidence was lawfully procured by operation of s. 11 (6)(c)(

d) and s. 11(8) as enabled through s. 12. On the balance of probabilities the defendant has failed to establish that his s. 8 Charter r ights have been infringed. [ 81 ] In my view enlisting a peace officer with expertise to determine whether the stuffed animals would afford evidence pursuant to s. 11(8) with respect to a non- CDSA offence does not make the execution of the search warrant unreasonable. A voir dire will serve no useful purpose with respect to this issue. B.C. Hydro Attendance at 4410 Bohler Road [ 82 ] The defence submits that since it took three and a half hours for the police to call in B.C.

Hydro, it was not a true safety issue. They further submit that the B.C. Hydro employee was not permitted access pursuant to s. 12(1) as they were not attending for a purpose incidental to the grow operation search. As a result he submits their entry was warrantless. [ 83 ] The Crown relies on Tran noted above and the fact that it was readily apparent that there had been a grow operation at 4410 Bohler Road. They note the photographs showing what appears to be haphazard wiring. In their submission it is readily apparent why the police requested the attendance of a qualified electrician. The fact that a B.C.

Hydro representative was not called in immediately does not negate the existence of a safety issue. The degree of a safety issue will vary case by case. [ 84 ] The defence has not shown that the attendance of a B.C. Hydro representative would possibly invalidate the search, the seizure or the warrant. A voir dire will not assist the proper trial of the real issues.

Seizure of Firearms from Bohler Road [85] The defence submits that the warrant to search 4410 Bohler Road did not authorize the search for any firearms. This argumentwas part of the notice given by previous counsel on June 2, 2016 and was premised on the argument to be advanced over the seizures at604 Old Lakelse Lake Drive; however previous counsel abandoned this challenge as well. [86] The warrant in question authorized the police to search for marihuana, equipment used to grow marihuana and documentsrelated to the production of marihuana.

As it turned out, no marihuana was found growing in the building but it was clear that it had beenused for that purpose.

The Crown submits the fact it was not currently being grown does not prevent the police from searching for theother items enumerated in the warrant. [87] The Crown also submits that once one of the black boxes was opened and numerous firearms were located, it was reasonableand in fact required that the police open the remaining boxes and seize the unlawfully possessed firearms. [88] Section 11(8) of the CDSA and s. 489(1) of the Criminal Code permit the police to seize items not specified in the warrant ifcertain conditions are met.

Section 11(8) of the CDSA states: A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, inaddition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds hasbeen obtained by or used in the commission of an offence or that will afford evidence in respect of an offence. [89] The accused asserts that the firearms were not in plain view, they were safely stored and it was only afterwards that theyinquired whether the accused had a Firearms Acquisition Certificate, hence, it was not apparent that the firearms related to an offence. [90] In CanadianOxy Chemicals Ltd. v.

Canada (Attorney General), (SCC), [1999] 1 S.C.R. 743 at paras. 15-24,the Court stated: A. The Ordinary Meaning of the Words 15. On a plain reading, the phrase "evidence with respect to the commission of an offence" is a broad statement, encompassing allmaterials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinarymeaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and theirpotential culpability falls within the scope of the warrant. 16.

This reading is supported by Dickson J.'s

interpretation of almost identical language in Nowegijick v. The Queen, (SCC), [1983] 1 S.C.R. 29, at p. 39: The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "withreference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey someconnection between two related subject matters. [Emphasis added.] 17.

We can assume that Parliament chose not to limit s. 487(1) to evidence establishing an element of the Crown's prima facie case.To conclude otherwise would effectively delete the phrase "with respect to" from the section. While s. 487(1) is broad enough toauthorize the search in question even absent this phrase, the inclusion of these words plainly supports the validity of these warrants. 18. The respondents urged that s. 487(1) be given a restrictive reading in accordance with the principle that an ambiguous penalstatute should be interpreted in a manner most favourable to an accused: see R. v.

McIntosh, (SCC), [1995] 1 S.C.R.686, at para. 39. That argument was rejected as, in our opinion, this

section is neither ambiguous, nor the type of penal provisions towhich the rule should apply. Instead, s. 487 should be given a liberal and purposive

interpretation;

Interpretation Act, R.S.C., 1985, c. I-21, s. 12. 19. While s. 487(1) is part of the Criminal Code, and may occasion significant invasions of privacy, the public interest requiresprompt and thorough investigation of potential offences. It is with respect to that interest that all relevant information and evidenceshould be located and preserved as soon as possible. This

interpretation accords with the purposes underlying the Criminal Code and thedemands of a fair and expeditious administration of justice. B. Purpose of the Search Warrant Provisions of the Criminal Code 20. A primary, though not exclusive, purpose of the Criminal Code, and penal statutes in general, is to promote a safe, peaceful andhonest society. This is achieved by providing guidelines prohibiting unacceptable conduct, and providing for the just prosecution andpunishment of those who transgress these norms. The prompt and comprehensive investigation of potential offences is essential tofulfilling that purpose.

The point of the investigative phase is to gather all the relevant evidence in order to allow a responsible andinformed decision to be made as to whether charges should be laid. 21. At the investigative stage the authorities are charged with determining the following: What happened? Who did it? Is the conductcriminally culpable behaviour? Search warrants are a staple investigative tool for answering those questions, and the

section authorizingtheir issuance must be interpreted in that light. 22. The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensurethat the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all theevidence relevant to events which may have given rise to criminal liability. It is not the role of the police to investigate and decidewhether the essential elements of an offence are made out - that decision is the role of the courts.

The function of the police, and otherpeace officers, is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether chargesshould be laid, and then present the full and unadulterated facts to the prosecutorial authorities. To that end an unnecessary and restrictive

interpretation of s. 487(1) defeats its purpose. See Re Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449, p. 475: Police work should not be frustrated by the meticulous examination of facts and law that is appropriate to a trial process .... There may beserious questions of law as to whether what is asserted amounts to a criminal offence .... However, these issues can hardly be determinedbefore the Crown has marshalled its evidence and is in a position to proceed with the prosecution. 23.

Moreover, extrinsic factors such as the accused's motive or the failure to exercise due diligence are often relevant to determiningwhether the event which triggered the investigation in the first place is criminally culpable. Everyone, including accused persons, wholacks the means of obtaining and preserving evidence prior to trial has an interest in seeing that these facts are brought to light. It wouldbe undesirable if a narrow reading of s. 487(1) resulted in either inculpatory or exculpatory evidence being lost because of theinvestigators' inability to secure it. See R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241, per Cory J., at p. 254: The essential role of the police is to investigate crimes. That role and function can and should continue after they have made a lawfularrest. The continued investigation will benefit society as a whole and not infrequently the arrested person. It is in the interest of theinnocent arrested person that the investigation continue so that he or she may be cleared of the charges as quickly as possible. 24. It is important that an investigation unearth as much evidence as possible.

It is antithetical to our system of justice to proceed onthe basis that the police, and other authorities, should only search for evidence which incriminates their chosen suspect. Suchprosecutorial "tunnel vision" would not be appropriate: see The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1(1998), per the Honourable F. Kaufman at pp. 479-82. [91] In R. v. Le, 2011 MBCA 83 at paras. 101-113, the court considered the scope of a search warrant and the seizure of items notspecifically identified in the warrant. The court stated as follows: 103.

Before this court, the appellant argued that the trial judge erred in rejecting his argument that the plain view doctrine did notapply because the words of the documents were not in plain view and therefore the police, in effect, conducted an unauthorized search.The Crown relied, as did the trial judge, on s. 489(1)(c), as well as the plain view doctrine. 104. Of assistance on this issue is the

summary of the law taken from Fontana & Keeshan. In particular: Where it was alleged that the search was overly broad in that some items may have been seized that fell outside the described items to beseized, the New Brunswick Court of Appeal held that an "oversearch" could not affect the initial jurisdiction to authorize the warrant.The appropriate remedy lay under s. 490 of the Code: R. v. Tomah [(1996), (NB CA), 183 N.B.R. (2d) 232 (C.A.),leave to appeal to S.C.C. dismissed, [1997] S.C.C.A.

No. 81 (QL)]. [p. 103] Historically, a common difficulty facing an officer whose duty was to execute a search warrant, was whether or not he could seize goodsother than those specifically described on the face of the document. The additional goods discovered might pertain to a different kind ofoffence altogether or to an offence related to the one which is the reason for his search. [p. 210]

Section 489 is an answer to this problem, authorizing any person executing a warrant (implicitly under any statute or section) to seize, inaddition to the goods specified in the search warrant, anything that the person believes on reasonable grounds has been obtained by orhas been used in the commission of an offence, or which will afford evidence in respect of an offence. .... [p. 211] Apart from the expanded power given to the officer under s. 489, the additional prospect of the "plain view" doctrine arising in thecourse of a search under warrant remains a possibility.

The provisions of s. 489, and the test set out therein, are quite distinct from whatis normally taken into account on "plain view". .... [p. 213] There is no requirement [in s. 489] that the thing be found in plain view, .... Even at common law, the plain view doctrine confers aseizure power not a search power, and does not permit an exploratory search to find other evidence: R. v. Fawthrop [(2002), (ON CA), 166 C.C.C. (3d) 97 (Ont. C.A.)]. [p. 213] 105.

With respect to the plain view doctrine, the authors note (at p. 670): "Plain view" occurs when items fall into the view of an officer who has a right to be in the position he is in to have the view he has had;and such items have been held to be subject to seizure. When an officer finds such evidence - contraband, stolen property or crime evidence - unexpectedly in the course of his duties, incircumstances where it is at once obvious and visible without positive action on the officer's part to make it observable, he has the rightto seize it. .... 106. Section 489(1)(

c) contains the phrase "will afford evidence in respect of an offence." A virtually identical phrase ("will affordevidence with respect to the commission of an offence") appears in s. 487(1)(

b) of the Code. In CanadianOxy Chemicals Ltd. v. Canada(Attorney General), (SCC), [1999] 1 S.C.R. 743, Major J., writing for the court, opined as follows with respect to themeaning of the phrase in s. 487(1)(b) (at para. 15): On a plain reading, the phrase "evidence with respect to the commission of an offence" is a broad statement, encompassing all materialswhich might shed light on the circumstances of an event which appears to constitute an offence.

The natural and ordinary meaning of thisphrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potentialculpability falls within the scope of the warrant. 107. There can be no doubt that the police, when executing a search warrant for specific items like guns or clothing, cannot riflethrough personal papers at their discretion (see Re Gillis and The Queen (1982), (QC CS), 1 C.C.C. (3d) 545 at 555(Qc. S.C.)). Nonetheless, there are a number of cases where the seizure of documents not identified in a search warrant has been upheld(see R. v.

Budai, [1995] B.C.J. No. 1091 (S.C.) (QL), R. v. Murray and Naples, 2007 BCSC 1480, and R. v. Masterson, [2009] O.J. No.

2868 (S.C.J.) (QL) ). 108. With respect to the plain view doctrine, it is important to recall that s. 489 and the plain view doctrine are not co-extensive (see R. v. Spindloe , 2001 SKCA 58 at para. 42 , 154 C.C.C. (3d) 8). 109. In Spindloe , Jackson J.A., writing for herself on this issue, noted that "[o]ver seizure, in and of itself, however, does not change a seizure which would be otherwise reasonable into one which is unreasonable" (at para. 52).

With respect to the s. 24(2) analysis flowing from a breach of s. 8, she observed that "a Court would be reluctant to admit evidence unreasonably seized if the evidence is not necessary to make out the offence charged" (at para. 56). 110. While it certainly would have been possible for the search warrant to have been more clearly worded, it is essential to put the disputed evidence in perspective. It is apparent that the documentation seized from on top of the fridge had very little, if anything, to do with the appellant's eventual arrest and conviction.

Before the warrant was even issued, the police had evidence that he co-owned the property. 111. In this context, a particularly helpful decision is the Ontario Court of Appeal's judgment in R. v. Bottineau , 2011 ONCA 194 , 269 C.C.C. (3d) 227. In this instance, one of the issues on appeal was the admissibility of the accused's journals, which were not specifically included within the search warrant issued.

Counsel for Bottineau took the position that the police did not have authority to seize the journals, that it was a serious breach of s. 8 and the evidence should therefore be excluded under s. 24(2) of the Charter . 112. Interestingly, the Ontario Court of Appeal, after reviewing the trial judge's rulings, found that it was not clear whether the seizure of the journals was acceptable under s. 489; for the purposes of the judgment, the court assumed that the journals were not properly seized pursuant to s. 489(2) of the Code and that they should have been excluded under s. 24(2).

Nonetheless, the court had no hesitation in applying the curative provision of the Code (s. 686(1)(b)(iii)), noting that a "single excerpt from the journals was but a small drop in a sea of evidence" (at para. 83). 113. In my opinion, the trial judge was right to conclude that the documents in question were properly seized under s. 489(1)(

c) of the Code. CanadianOxy Chemicals provides clear authority for a broad

interpretation of this

section to include documents such as the ones in issue in this case. In any event, I would have no hesitation, if it were necessary to do so, to apply the proviso in s. 686(1)(b)(iii) of the Code as the evidence, even if wrongly admitted, could have had no effect on the eventual outcome of the trial. Given this result, I will refrain from commenting on the application of s. 24(2) of the Charter . [ 92 ] Given the nature of the search and the firearms located I am satisfied that the seizure of the firearms was lawful and a voir dire would not assist this Court with the proper trial of the real issues.

Search of Cell Phones Without a Warrant [ 93 ] The cell phones were seized during the search of 604 Old Lakelse Lake Drive. The Crown does not seek to tender any evidence derived from any search of the cell phones. As a result there is nothing to exclude. A voir dire will not assist either with respect to the cell phone search or with the broader pattern of Charter breaches alleged by the accused. An Order Granting Leave to Cross-Examine the Affiant [ 94 ] This issue arises only if I permit the defence to challenge one or more of the authorizations.

In light of the dismissal of the Vukelich application it does not arise. However, if I am incorrect in refusing the defence application to challenge one or more of the authorizations I will address the application for leave to cross-examine. [ 95 ] The defence does not limit the application to one affidavit. As a result it is not possible to assess the utility of cross-examination in the context of a specific authorization. [ 96 ] In addition, notice of this application was previously given, pursued and allowed. Now, Mr. Edwardsen seeks to cross-examine the affiant on two further issues.

The first issue arises from the recent trial decision in Wong rendered nearly five years after the application for the authorizations were made. The application for cross-examination turns on the defence’s perceived importance of the Wong decision as it relates to the use of video surveillance. Following Wong , it could be argued that it might be important for an affiant to advise an authorizing justice whether or not the surveillance observations were made through the use of video.

Prior to the Wong decision this year the technique used was lawful. [ 97 ] In any event, even if the affiant ought to have advised the authorizing justice that some surveillance observations were made with the aid of a video camera, and that this omission was a material omission, cross-examination could not assist the Court in determining whether the authorization should have been issued. Particularly since there is no basis to allege that the observations themselves ought to be called into question.

Cross-examination that is merely a prelude to arguments that can be made based on the statements in an affidavit should not be permitted: R. v. MacNeil , 2013 BCCA 162 at para. 34 . Even an omission determined to be material will not necessarily lead to cross-examination: R. v. Edwardsen, 2015 BCSC 1660 at para. 19 . [ 98 ] Mr. Edwardsen also seeks to cross-examine Cpl. Etele on his alleged material misrepresentations of Cst. Couture’s surveillance reports. In his Notice of Application, at para. 9, he states: CpI. Etele also advised in the ITO that he had reviewed surveillance reports authored by Cst.

Couture about observations made of Plan 9106B from a remote observation post situated off the property. The surveillance reports do not disclose that Cst. Couture was off of the property when he made those observations nor do Cst. Couture’s notes. From photographs taken by Cst. Couture from that location, it appears to the Applicant Cst. Couture was located on the property when he made those observations.

[99] The suggestion that Cst. Couture must have trespassed and that Cpl. Etele must have known that Cpl. Couture trespassed, as Inoted earlier, is speculative. Indeed it is likely, given the role that Cpl. Etele played in the investigation that he knew where theobservation post was, may have been to the location himself, or had conversations with Cst. Couture. [100] The proposed cross-examination will not illicit evidence of probative value relevant to the issue for the reviewing judge: see R.v. Edwardsen, 2015 BCSC 1660, at paras. 9-11, 15-17. [101] The application to cross-examine the affiant Cpl.

Etele is dismissed. [102] As a result I need not address the application for an order excluding evidence respecting Plan 9106B and 604 Old Lakelse LakeDrive. [103] If I am incorrect in these findings I would in any event exercise my discretion to deny the accused’s application given hisconduct in these proceedings to which I now turn. Objection to the Admissibility of Evidence, the Conduct of theAccused, and Delay [104] The accused seeks to exclude evidence tendered during the search of Mr. Edwardsen’s residence at 604 Old Lakelse Lake Drive.The evidence he seeks to exclude has already been tendered in the trial.

The evidence was tendered, not without objection while senior,experienced counsel represented Mr. Edwardsen. [105] It is trite that “save in unusual and unforeseen circumstances”, objections to the admissibility of evidence are to be taken beforeor when that evidence is tendered, not afterwards: R. v. Jir, 2010 BCCA 497 at para. 9. [106] A court may exercise its discretion to revisit the admissibility of evidence already tendered. However, an accused must establish“special circumstances” to justify the late application and the court must be satisfied that the interests of justice require it: R. v.

Luksicek,[1993] B.C.J. No. 524, (C.A.) at para. 11; see also, R. v. Kutynec, (ON CA), 7 O.R. (3d) 277.Special circumstances do not include previously known yet unpursued Charter applications or a change in counsel: Jir at para. 9;Kutynec at 294; and Bunbury, 2005 YKTC 51 at paras. 11-14. [107] Mr.

Edwardsen has not provided justification for now seeking to pursue Charter arguments which, for the most part, arearguments previously announced and then abandoned, nor has he established any special circumstances. [108] To permit the accused to now litigate the lawfulness of the seizure of evidence already tendered at trial would undermine thecourt process, be unfair to the Crown and contrary to the public interest in having the trial heard on its merits. [109] Previously, the Crown was not able to lead its case in the manner it preferred because of late Charter notices. For example, theCrown called Cst.

Fulcher (exhibits officer for 604 Old Lakelse Lake Drive) as the first witness because he was present and required totestify if the defence was able to establish that a voir dire was required. Defence counsel had provided notice of an intention to argue thatsome exhibits seized were alleged to be “overseizures” because these items were not authorized for seizure by the warrant. However,without advising the Court or the Crown in advance, this application was abandoned during oral submissions by previous counsel. [110] Mr. Edwardsen terminated his previous counsel in the middle of their cross-examination of Cst.

Fulcher. If the currentapplication was permitted Cst. Fulcher would be a required witness. His evidence was led by the Crown in the trial proper and wouldhave been led differently if his evidence was now required in a voir dire. In this case it would be inappropriate and would prevent a fairhearing to permit retroactive challenges to the admissibility of his evidence given he has completed his testimony in chief. [111] This matter was extensively case managed. It is the Court’s duty to ensure that judicial resources are effectively utilized as partof its inherent jurisdiction to control the process.

As noted by the court in R. v. Singh, 2015 ONSC 7092 at para. 14: 14. The case management powers of a trial judge are broad and well established in common law. These powers derive from theinherent power of trial courts to control their own process and to ensure a fair trial. Their purpose is to ensure that proceedings areconducted with effectiveness, fairness, and efficiency. This becomes especially important in light of the scarcity of judicial resources andthe increasing length and complexity of criminal trials.

This has been a long criminal trial and I am becoming concerned at motions thathave been brought at the last minute. Further, and as noted above, the Court in Pires stated the following at para. 35: 35. The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago whenGarofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedings beforethem.

One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when thatparty is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. [112] It was clear to all involved that the Charter applications were to proceed as pre-trial motions before the trial commenced. Whilethe Court has the discretion to entertain Charter applications at this stage, in the context of this case, that is not a discretion that should beexercised in the accused’s favour. This is because the way in which Mr.

Edwardsen has conducted his litigation has resulted in theCourt’s resources not being well utilized. [113] He now wishes to advance Charter arguments during the time set for trial, thus potentially requiring that the court set asideadditional time in the future for continuation of the trial proper. It is not even clear whether the proposed Charter motions can take placeduring the time set, nor is it clear that they will conclude.

[114] The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, emphasized the importance of trials taking place within areasonable time. The court expressed concern with a culture that seemed to tolerate excessive delay and announced a new framework forassessing s. 11(

b) Charter claims. The Court recognized that not only does an accused suffer from delays in the proceedings but theCanadian public expects their criminal justice system to bring accused persons to trial expeditiously. The public, whose interest is servedby promptly bringing an accused to trial, is justifiably frustrated by watching years pass before a trial occurs (paras. 2 and 25-27). [115] More recently, the Supreme Court of Canada revisited the Jordan decision and the issue of delay in R. v. Cody, 2017 SCC 31.The court stated: 1.

This leads us to stress, as the Court did in Jordan, that every actor in the justice system has a responsibility to ensure that criminalproceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time. … 31. The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "firstinstance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show acorrespondingly high level of deference thereto.

While trial judges should take care to not second-guess steps taken by defence for thepurposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate todo so. 32. Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it isconducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstancessurrounding the action or conduct may therefore be considered.

The overall number, strength, importance, proximity to the Jordanceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations.Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(

b) application if it is designed to delay orif it exhibits marked inefficiency or marked indifference toward delay. 33. As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extendto omissions as well as acts (see, for example in another context, R. v. Dixon, (SCC), [1998] 1 S.C.R. 244, at para. 37).Accused persons must bear in mind that a corollary of the s. 11(

b) right "to be tried within a reasonable time" is the responsibility toavoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within areasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138). … 35. We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defencecounsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct.

Instead, legitimacytakes its meaning from the culture change demanded in Jordan. All justice system participants -- defence counsel included -- must nowaccept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed bys. 11(

b) of the Charter. … 38. In addition, trial judges should use their case management powers to minimize delay. For example, before permitting anapplication to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defencecounsel to summarize the evidence it anticipates eliciting in the voir dire and, where that

summary reveals no basis upon which theapplication could succeed, dismissing the application summarily (R. v. Kutynec (1992), (ON CA), 7 O.R. (3d) 277(C.A.), at pp. 287-89; R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where anapplication is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss"applications and requests the moment it becomes apparent they are frivolous" (Jordan, at para. 63). This screening function appliesequally to Crown applications and requests.

As a best practice, all counsel -- Crown and defence -- should take appropriate opportunitiesto ask trial judges to exercise such discretion. [Emphasis added.] [116] In this case there are a number of reasons why this Court should not exercise its discretion to hear the Charter applications now:

a) The applications now sought to be made were contemplated by former counsel but not pursued;

b) The proceedings are already lengthy due primarily to the number of Charter-related applications;

c) The accused was represented by two experienced criminal law lawyers during the previous Charter applications and the firstdays of trial, one of whom is a noted criminal law specialist with over 40 years of experience;

d) The timing of applications by Mr. Edwardsen throughout have affected the efficiency of the process;

e) The timing by Mr. Edwardsen’s repeated terminations of counsel. [117] The history of Mr. Edwardsen’s prior Charter applications is illustrative:

a) On April 23, 2015, Mr. Edwardsen provided Charter notice to the Crown. This notice followed a disclosure application thatwas not brought in advance of the scheduled voir dires but instead during the time set for the hearing of Charter motions in March 2015.The late disclosure application resulted in the loss of three weeks of voir dire time.

b) Mr. Edwardsen provided notice of his intention to challenge the following authorizations: i. A Tracking Warrant issued on February 7, 2012; ii. Dial Number Recorder Warrants issued on February 9, 2012; iii A Production Order issued on February 29, 2012; iv. A Production Order issued on April 24, 2012; v. A General Warrant issued on April 24, 2012; vi. A Production Order issued on May 2, 2012; vii.

A One Party Consent Authorized on July 12, 2012; viii A General Warrant issued on July 27, 2012; and ix The five Search Warrants issued on September 17, 2012. [ 118 ] As was self-evident over two years ago, it was Mr. Edwardsen’s intention to bring the Charter applications that he is now attempting to bring and court time was set aside to hear these applications. Mr. Edwardsen chose to bring some of those applications and other applications that were not set out in this notice. Trial counsel employed certain strategies and exercised their professional judgment in this regard. Properly, Mr.

Anderson does not call into question Mr. Westlake’s professional judgment and there is no basis to do so. [ 119 ] In addition, it is not as if Charter motions were not pursued. Mr. Edwardsen focussed his attack on informer issues. Some of the scheduled voir dire time was consumed by these issues, which required this Court to render four separate rulings. Further, on behalf of Mr. Edwardsen, Mr.

Westlake advanced vigorous arguments in support of his application to cross-examine the affiant, his application to cross-examine sub-affiants and his application to quash a tracking warrant. [ 120 ] The current applications of the accused could and should have been brought well in advance of the trial during the time that was set aside for the defence applications. Indeed, as is apparent from these reasons, many of the motions now sought to be brought were contemplated by former defence counsel but were abandoned.

Substantial court time was set aside for the hearing of the extensive motions sought to be brought by former counsel. Most of the court time was not used because the accused was not ready to proceed with his applications and requested adjournments to prepare. Although Charter notice had been given, most of the applications brought were not contemplated in the notice, which also caused delay. [ 121 ] Mr. Edwardsen has not articulated nor provided a basis for why this Court should hear his Charter applications now.

All that has changed since the trial commenced is that he has new counsel who takes a different view of matters than had previous counsel. As noted in R. v. Bunbury , new counsel is not in itself a reason to reengage in pre-trial applications. I will address this issue in more detail later in these reasons. [ 122 ] Of broader concern is the history of this matter which reveals that Mr. Edwardsen has throughout taken steps to frustrate and delay the trial of this matter on the merits. In my view this is clearly the case as demonstrated by:

a) The conduct of the Charter litigation which resulted in multiple adjournments;

b) Mr. Edwardsen discharging Mr. Cranston on the eve of the preliminary inquiry;

c) Mr. Edwardsen discharging Mr. Westlake and Mr. Song during the trial;

d) Mr. Edwardsen causing Mr. Silverman to withdraw on the eve of the trial continuation;

e) Mr. Edwardsen retaining new counsel on, effectively, the day before th

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