R. v. Vanhorn, 2017 BCSC 379

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Vanhorn, 2017 BCSC 379 Date: 20170303 Docket: 64581-2 Registry: Chilliwack Regina v. Jeffery James Vanhorn Tanya Christensen Before: The Honourable Madam Justice DeWitt-Van Oosten Oral Ruling re: s. 24(2) of the Charter Counsel for Federal Crown: James M. Whiting Counsel for Accused Vanhorn: Marvin N. Stern Counsel for the Accused Christensen P. Michael Bolton, Q.C. Place and Date of Hearing: New Westminster, B.C. February 23, 2017 Place and Date of Judgment: New Westminster, B.C. March 3, 2017 I.

INTRODUCTION [ 1 ] Jeffery James Vanhorn and Tanya Christensen are jointly charged with unlawful possession of a loaded, restricted firearm contrary to s. 95(1) of the Criminal Code , R.S.C. 1985, c. C-46. [ 2 ] The charge arises out of a search of their residence at 12720 Carr Street in Mission. Ms. Christensen is a registered owner of the property. Mr.

Vanhorn is her common-law partner. [ 3 ] In April 2013, the Royal Canadian Mounted Police (the "RCMP") received information from a medical clinic in Pitt Meadows questioning the authenticity of several applications made to Health Canada for authorization to produce, store and possess marihuana for medicinal purposes. After making enquiries based on this information, police learned of 12720 Carr Street and the fact that it had three Health Canada licences attached to it allowing for the production and storage of marihuana.

These licences were in the name of Cynthia Parry, Jeffery Vanhorn, and Rheanna Parry. [ 4 ] From the documents produced by the medical clinic, police came to believe that the applications made in support of the licences held by Cynthia Parry and Jeffery Vanhorn contained a forged physician's signature, and/or were stamped with a physician's stamp that was stolen from the clinic.

As a result, police viewed these applications as "fraudulent" and the Health Canada licences flowing from them as "invalid". [ 5 ] In light of the validity concerns; the cumulative volume of the plants and dried marihuana bud that was authorized under the licences; and BC Hydro readings for 12720 Carr Street, police concluded that the property housed a "large scale, sophisticated marihuana grow operation" that was illegal, at least in part.

From their perspective, any marihuana on the property exceeding the amount allowable under the third Health Canada licence in the name of Rheanna Parry was being produced and stored contrary to the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the " CDSA ") . [ 6 ] On April 29, 2013, the RCMP obtained a search warrant for the property on grounds that the search would afford evidence of production of a controlled substance and possession for the purpose of trafficking contrary to the CDSA . [ 7 ] The search was executed the next day.

Among other things, a loaded 9mm Smith & Wesson handgun was seized, as well as two bulletproof vests and two additional rounds of ammunition. [ 8 ] At trial, the accused applied to have these items excluded from evidence on the basis that they were obtained in violation of s. 8 of the Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the " Charter "). The application had two aspects to it: (1) a challenge to the validity of the search warrant; and (2) a challenge to the manner in which the search was conducted based on the use of a battering ram to enter the residence. [ 9 ] On December 22, 2016, I ruled that the search warrant could not properly have issued because the Information to Obtain ("ITO"), as amplified on review, did not meet the test for reasonable grounds under s. 11(1) of the CDSA . Accordingly, the warrant was set aside. This rendered the search of 12720 Carr Street a warrantless search within the meaning of the Charter and presumptively

unreasonable in violation of s. 8 . [ 10 ] I rejected the argument that by using a "hard entry", the manner in which the search was conducted was unreasonable. This second aspect of the constitutional application was dismissed. [ 11 ] My reasons on the s. 8 ruling are indexed as 2016 BCSC 2546 (the "Ruling"). After the Ruling, the accused abandoned a third challenge that they contemplated bringing against the search warrant, but had not yet advanced (see paragraphs 10, 11 and 96 of the Ruling).

Instead, they elected to move directly to submissions under s. 24(2) of the Charter . [ 12 ] On February 23, 2017, I heard the s. 24(2) submissions. These are my reasons on the final stage of the application to exclude the seized evidence. For a full appreciation of the issues raised and determined under s. 8, these reasons should be read in conjunction with the Ruling. II. POSITIONS OF THE PARTIES [ 13 ] The accused describe the s. 8 violation as very serious.

Police entered and searched a dwelling house using a forced entry based on a warrant that was insufficient. [ 14 ] Moreover, the warrant was obtained through an ITO that was poorly drafted; factually inaccurate; and, it stated conclusions about 12720 Carr Street and the Health Canada licences attached to it that were unfounded and misleading. [ 15 ] The accused say that rather than present all known facts to the authorizing justice in a full and frank manner, the affiant prepared the ITO as an "advocate".

The affiant was selective in the facts that were included and the information was put before the justice in a way that left a profoundly misleading (and erroneous) impression about the validity of the Cynthia Parry and Jeffery Vanhorn licences. [ 16 ] The accused say that although I did not find in the Ruling that the affiant deliberately misled the authorizing justice, this case falls just shy of "bad faith" and to admit the evidence under s. 24(2) would irreparably taint the administration of justice.

In its effect, it would render the requirement for reasonable and probable grounds for a warrant meaningless. [ 17 ] Within the context of an ex parte process and the search of a dwelling house, the accused argue that the approach taken by police should be strongly rebuked. In support of their submissions, they rely on R. v. Grant , 2009 SCC 32 , as well as a number of decisions out of the Court of Appeal for British Columbia in which firearms were excluded from evidence because of a warrantless search that violated s. 8. These cases include (but are not limited to): R. v. Caron , 2011 BCCA 56 ; R. v.

Reddy , 2010 BCCA 11 ; and R. v. Ling , 2009 BCCA 70 . [ 18 ] The Crown acknowledges that "the ITO of [the affiant] was not prepared with the caution and attention to detail which is to be expected of law enforcement officers". However, it stresses that the presence of mistakes in an ITO does not automatically lead to the exclusion of evidence. [ 19 ] The Crown argues that the affiant was "not making things up" when completing the ITO and that this attenuates the breach. The affiant received information from a medical clinic describing Cynthia Parry's application for a Health Canada licence as a "forgery".

The clinic also raised questions about the application made by Jeffery Vanhorn. The affiant was correct, based on the Marihuana Medical Access Regulations , SOR 2001-227 (the " Regulations "), that licences obtained by fraud are subject to revocation by Health Canada. Finally, the Hydro readings from the property were factually high, even though a reliable comparative baseline specific to the buildings was not available. [ 20 ] The affiant referenced extrinsic evidence in support of the conclusions drawn.

The Court has found that the affiant did not articulate this information clearly; pay close attention to the details to ensure that the whole of the picture was put before the justice; and that the assumptions drawn were premature. However, there was no finding of intent to mislead; no pattern of misconduct on the part of the police; and, there is no indication that police flagrantly disregarded the Charter rights of the accused. [ 21 ] According to the Crown, the Court need not be concerned about distancing itself from the affiant's conduct to maintain public confidence in the administration of justice.

Instead, the societal interest in adjudicating this case on its merits should be given considerable weight in the s. 24(2) analysis. The Crown points out that admitting non-conscriptive evidence, such as a firearm, does not affect the fairness of the trial: R. v. Whitaker , 2008 BCCA 174 . III.

ANALYSIS [ 22 ] The s. 24(2) analysis engages three distinct avenues of enquiry: (1) the seriousness of the Charter -infringing state conduct; (2) the impact of the breach on the Charter- protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits ( Grant , at para. 71 ). [ 23 ] The "greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct" ( Reddy , at para. 92 ).

The more serious the impact of the Charter breach, in either its duration or intrusiveness, the "more likely it will be that exclusion is warranted" ( Reddy , para. 93 ).

For the third of the Grant enquiries, the focus should be on the "long-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction" ( Reddy , at para. 94 ). [ 24 ] Ultimately, the role of the Court under s. 24(2) of the Charter "is to balance the assessments under each of these lines of enquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute" ( Grant , at para. 71 ).

A.

The seriousness of the Charter- infringing state conduct [ 25 ] In assessing whether the warrant withstood scrutiny under s. 8, I made a number of findings about factual errors and misleading information contained within the ITO, including: 1. the affiant mischaracterized the Health Canada licence in the name of Jeffery Vanhorn as having been "fraudulently" obtained, when, at best, the evidence from the medical clinic showed that questions had been raised about its validity, but were not yet answered; 2. the affiant repeatedly described the Health Canada licences in the name of Cynthia Parry and Jeffery Vanhorn as "invalid" when, in fact, Health Canada considered the licences "valid" at the material time; 3. as a whole, the ITO left the distinct impression that the licences for both Cynthia Parry and Jeffery Vanhorn were going to be revoked by Health Canada because they had been issued "on the basis of false and misleading information"; however, at the time the warrant was obtained, no such revocation had occurred; 4. moreover, based on what was relayed to police by Health Canada, the affiant knew or ought to have known that commencement of the revocation process required a report from police, which was not submitted to Health Canada until the warrant had already been executed; 5. the affiant held out revocation of the licences of Cynthia Parry and Jeffery Vanhorn as a fait accompli based on the information from the medical clinic alone, without telling the authorizing justice about a statutory condition precedent to revocation that is contained within the Regulations ; that is, written notice to the licence holders and an opportunity for them to be heard; and, 6. the affiant's statements in the ITO that the property at 12720 Carr Street had "extremely high hydro consumption" consistent with a "large scale, sophisticated marihuana grow operation" were unreliable with specific reference to the property's outbuilding because of the lack of any comparative baseline for an objective assessment of the readings. [ 26 ] Once the erroneous and/or misleading information was excised from the ITO, I concluded there was no basis for finding a credibly-based probability that marihuana was being grown and stored at 12720 Carr Street in contravention of the CDSA , or that it was possessed there for the purpose of trafficking. [ 27 ] Indeed, on the voir dire , the affiant acknowledged that police had no direct evidence that marihuana was actually on site at 12720 Carr Street or, if it was on site, that it exceeded the amount allowable under the third Health Canada licence in the name of Rheanna Parry.

Police took no issue with the validity of this third licence. [ 28 ] I was satisfied, based on the voir dire , that the affiant did not intentionally mislead the authorizing justice and included information within the ITO that both supported and detracted from the grounds for a search warrant.

For example, although the affiant repeatedly described the licences of Cynthia Parry and Jeffery Vanhorn as "invalid", the ITO also included the fact that Health Canada stated the licences were "valid". [ 29 ] I was also satisfied that the affiant genuinely, but mistakenly, believed that the two licences would be revoked by Health Canada, based on the information received from the medical clinic and the affiant's reading of the Regulations . [ 30 ] However, this conclusion was premature and it is readily apparent from the ITO that it shaped everything that followed.

As I noted at paragraph 87 of the Ruling: [P]olice came out of the gate over-estimating, and perhaps misconstruing, the strength and meaning of the material received from the medical clinic; drew inferences that were not objectively warranted in respect of Jeffery Vanhorn's Licence; and then allowed those inferences to shape what flowed thereafter, including the premature assumption that the Licences for both Cynthia Parry and Jeffery Vanhorn would be revoked.

Rather than waiting to see whether any of the three Licenses associated with the property were actually revoked, based on the report of alleged fraud submitted by Cpl.

Hawes, or otherwise, police sought a warrant. [ 31 ] Given the critical role that the validity and status of the Health Canada licences played in supporting this warrant, I agree with counsel for the accused that the s. 8 violation is very serious. [ 32 ] The RCMP sought a warrant to search a property, including a dwelling house, on grounds that the property housed an illegal marihuana grow operation, knowing that at the time they applied for the warrant there were three Health Canada licences for the production of medicinal marihuana attached to the property, each of which was still considered valid by the issuing authority and had not been revoked.

Cumulatively, these three licences allowed for 634 indoor plants and 28,530 grams of dried marihuana bud to be on the property. [ 33 ] Moreover, police had no idea how much marihuana was actually on the property, whether it exceeded this amount, or, even assuming two of the three licences were problematic, that the quantity of any marihuana housed at 12720 Carr Street went beyond the amount allowed for by the third licence. [ 34 ] I did not make a finding of "bad faith" on the part of the affiant (sometimes described as a "flagrant disregard" for the Charter rights of an accused); however, the absence of such a finding does not equate to "good faith" and thereby mitigate the seriousness of the breach ( Caron , at para. 38 ). [ 35 ] In light of the licences attached to the property, which exempted the holders from criminal culpability for the production and storage of marihuana, it was imperative that any ITO crafted in support of a search warrant in the circumstances of this case be factually correct, carefully identify the objectively verifiable evidence in support of the warrant and, most importantly, make full and frank disclosure about the status of the Health Canada licences and what steps, if any, Health Canada had confirmed it was taking in response to the validity concerns raised by the medical clinic and police.

[ 36 ] In the absence of reliable evidence showing that the amount of marihuana on the property exceeded the cumulative amount allowable by the three licences (which did not exist in this case), this was the only way in which the authorizing justice could make a fully informed determination on whether a search warrant could properly issue on the basis of suggested fraud and resultant licence invalidity, or whether it was premature. [ 37 ] For the reasons provided, the ITO fell well below the standard required and presented a foundation for the issuance of a warrant that not only overstated the grounds for the alleged offending, but left a seriously misleading impression about the true state of affairs.

B. The impact of the breach on the Charter- protected interests of the accused [ 38 ] It is incontrovertible that a dwelling house attracts a high expectation of privacy. Appropriately, the Crown takes no issue with this proposition. As noted in R. v. C ô t é , 2011 SCC 46 , a dwelling house is "typically a place where individuals have the greatest expectation of privacy" (at para. 82). [ 39 ] In this case, police interfered with a high expectation of privacy without sufficient basis.

They forced entry into the residence of the accused using a battering ram; they conducted a search of both the residence and an outbuilding on the property; and, there were 10 to 12 police officers in attendance. In R. v.

Voong , 2013 BCCA 527 , the Court of Appeal held that the "unauthorized search of a private residence is unquestionably a serious intrusion" (at para. 99). [ 40 ] This was not a brief intrusion with privacy interests; one that arose out of exigent circumstances; or one that was the result of uncertainty in the law. [ 41 ] To the contrary, based on the evidence, the RCMP had ample time to make the enquiries they needed to make in clarifying the status of the three licences registered to 12720 Carr Street, including any revocation steps that Health Canada might take upon receipt of a report from police, and to ensure that whatever the results of those enquiries might be, they were correctly framed and articulated for the consideration of the authorizing justice.

They also had time to gather the baseline information that was missing in support of the inferences drawn from the BC Hydro readings, to ensure that the supporting foundation for the inferences was reliable. [ 42 ] Instead, they rushed to the conclusion that they were facing a "large scale, sophisticated marihuana grow operation" in contravention of the CDSA , without fully accounting for and, more importantly, resolving the unique feature known to them; namely, the existence of three Health Canada licences that were still considered to be appropriately in place by the issuing authority. C.

Society's interest in the adjudication of the case on its merits [ 43 ] Based on my knowledge of the case thus far, the evidence seized from 12720 Carr Street is critical to the prosecution. Without the firearm, there will be no ability to prove the offence against the accused. The Crown has confirmed in its written argument that such is the case. [ 44 ] In support of admission under s. 24(2), the Crown has put cases before me that speak to the serious nature of firearms offences. For example, in R. v.

Holt , 2015 BCCA 302 , the Court recognized that "the possession of a loaded firearm does pose a serious threat, and a growing one, to communities across Canada" (at para. 18). See also R. v. Guha , 2012 BCCA 423 , at para. 30 and R. v. Nguyen , 2005 BCCA 115 , at para. 5 . [ 45 ] The Crown also points out that the firearm seized by police constitutes non-conscriptive evidence, is inherently reliable and the Court of Appeal has held that the introduction of this type of evidence in the face of a Charter breach does not adversely-impact "the fairness of the trial" ( Whitaker , at para. 71 ).

Reliability has been cited by the Supreme Court of Canada, post- Grant, as a factor that legitimately weighs in favour of the admission of evidence relating to firearms that was obtained in violation of s. 8: R. v. Beaulieu , 2010 SCC 7 , at para. 8 . [ 46 ] I accept that these are relevant factors for my consideration under the third avenue for enquiry. However, they are not determinative.

As noted in Voong , "the reliability of evidence – even evidence determinative of guilt – is not the sole factor to consider at the third stage of the test" (at para. 105, emphasis added). [ 47 ] Society's interest in adjudicating cases on their merits cannot be assessed on this basis alone. Instead, a broader lens must be brought to bear.

As noted, the third avenue of enquiry under s. 24(2) must take into consideration the "long-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction" on a particular set of facts ( Reddy , at para. 94 ). [ 48 ] This is why there have been cases in which firearms have been excluded from evidence, notwithstanding the serious nature of the offences alleged to have been committed. [ 49 ] For instance, in Caron , a warrantless search of a digital camera resulted in the exclusion of a loaded pistol that was located in the vehicle operated by the accused.

Justice Frankel said, at para. 66: [W]hile the public has an unquestionable interest in the successful prosecution of persons who unlawfully carry loaded firearms, it also expects those engaged in law enforcement to respect the rights and freedoms we all enjoy by acting within the limits of their authority. [ 50 ] It was made clear in Caron that exclusion of a firearm under s. 24(2) does not require the showing of "egregious" conduct by police (at para. 64). [ 51 ] In Reddy , the Court of Appeal excluded handguns from evidence that were obtained by way of a search incident to an investigative detention that was found to violate s. 8.

Although the majority acknowledged that the guns were "highly reliable evidence"

and "critical to the prosecution of serious offences", it was nonetheless satisfied that admitting the guns would adversely affect the repute of the administration of justice (at paras. 107–109). The majority held that "the price paid by society for an acquittal in [the circumstances of Mr. Reddy] is outweighed by the importance of maintaining Charter standards" (at para. 108, citing R. v. Harrison , 2009 SCC 34 , at para. 42 ). [ 52 ] See also R. v. Ahmed-Kadir , 2015 BCCA 346 ; R. v.

Dhillon , 2012 BCCA 254 ; and Ling . [ 53 ] In the circumstances of this case, once considered in their entirety, I am satisfied that a balancing of the assessments made under each of the three Grant lines of enquiry leads to the conclusion that the admission of the impugned evidence would bring the administration of justice into disrepute. [ 54 ] Consistent with the determination made in Voong , the search of the residence at 12720 Carr Street required a "better effort at full, frank and fair disclosure, even when not intentionally misleading" (at para. 97).

In my view, to admit the items seized by police would "send the message that when the charges are serious, individual rights count for little" ( Ahmed-Kadir , at para. 111 ). I am not prepared to do so. IV. DISPOSITION [ 55 ] For the reasons provided, I have concluded that admitting the items seized from 12720 Carr Street on April 30, 2013 would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter . As such, they are excluded from evidence at trial. "DeWitt-Van Oosten J."