R. v. Gelowitz, 2023 BCSC 1169

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Gelowitz, 2023 BCSC 1169 Date: 20230510 Docket: 74036-2 Registry: Prince George Rex v. Tyler Aaron James Gelowitz Before: The Honourable Mr. Justice Kirchner Oral Ruling on Voir Dire #2 Re s. 24(2) Charter Application Counsel for the Crown: I. Ferbey Counsel for the Accused: T.E. La Liberté, K.C. K.B. Wilkinson Place and Date of Hearing: Prince George, B.C. May 9, 2023 Place and Date of Judgment: Prince George, B.C.

May 10, 2023 Introduction [ 1 ] THE COURT: The accused, Tyler Gelowitz, is charged with five counts of possessing prohibited substances for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act [ “CDSA” ]. He is also charged with one count of possession of a prohibited substance, GHB, contrary to s. 4(1) of the CDSA , and one count of possession of a loaded restricted firearm, contrary to s. 95(1) of the Criminal Code . [ 2 ] These charges arise from the results of a search warrant that was executed on August 1, 2019 in an apartment unit on 1 st Avenue in Prince George.

The search found, among other things, 169.27 grams of drugs containing fentanyl, 169 tablets containing fentanyl, 281.24 grams of drugs containing cocaine, 51.91 grams containing MDMA, and 27.45 grams of drugs containing GHB. Also found and seized were $92,740 in cash, two handguns, one of which was loaded with one round and had the serial number removed, and a large collection of items that may be characterized as drug trafficking paraphernalia, such as zip-lock bags. [ 3 ] The Crown concedes that Mr.

Gelowitz has a privacy interest in the 1 st Avenue apartment from which these items were seized, although it is not his residence. His residence was also searched on the same day pursuant to a separate warrant that was granted on the basis of the same information used to obtain the warrant to search the 1 st Avenue apartment. [ 4 ] The Crown does not propose to tender evidence generated from the search of the residence.

However, given the relationship between the two searches, the Crown acknowledges they must be considered together, even though the application to exclude evidence only pertains to evidence obtained from the 1 st Avenue apartment. [ 5 ] Also searched at the same time, based on warrants obtained under the same information to obtain, were two other apartment units, one at 152 McIntyre Crescent and one at 166 McIntyre Crescent, and also a residence located on Eaglenest Crescent.

These three residences, along with the 1 st Avenue apartment, were searched on the basis that Constable Chamberlain, who swore the affidavit for the ITO, believed that these were safehouses where Mr. Gelowitz stored money or drugs in residences rented in the names of others to avoid detection by police or other drug traffickers. However, none of the searches of these other three locations or Mr.

Gelowitz's residence generated evidence that the Crown intends to lead at trial. [ 6 ] In a ruling I made on May 8, 2023, in this voir dire , and which I will call the "Search Warrant Ruling", I found the search warrants respecting the 1 st Avenue apartment and Mr.

Gelowitz’s residence were invalid because, while the evidence in the ITO raised a suspicion – and even a strong suspicion – that drugs or evidence of drug trafficking would be found in at least some of the locations searched, the evidence was not sufficient to cross the required threshold to a reasonable belief or credibly-based probability that evidence of an offence would be found in those locations. [ 7 ] Consequently, there was a breach of Mr. Gelowitz's right to be free from unreasonable search and seizure under s. 8 of the Charter .

[ 8 ] Mr. Gelowitz now seeks exclusion of the evidence under s. 24(2) of the Charter . In accordance with that section, I must decide whether the admission of the evidence seized from the 1 st Avenue apartment in what is now a warrantless search would bring the administration of justice into disrepute. [ 9 ] Mr.

Gelowitz asserted no privacy interest in the other three locations searched, and the Search Warrant Ruling did not consider or set aside those warrants, although the evidence relating to those warrants was considered in the analysis since there was a single ITO filed in support of all five search warrants. The Validity of the Search Warrant [ 10 ] I will not attempt to summarize my findings on the Search Warrant Ruling in any detail. Very briefly though, I found the evidence in the ITO provided good reason to suspect or even strongly suspect that Mr.

Gelowitz was involved in drug trafficking, but it was not sufficient to provide a credibly-based probability that he had committed an offence or that evidence of the offence would be found at the five locations searched. [ 11 ] I summarized the grounds for that evidence in the Search Warrant Ruling as follows, although this may not be an exact quote:

a) Mr. Gelowitz was seen interacting in short-duration encounters with two persons on separate occasions shortly before each of those persons was found to be in possession of a reasonably sizeable amount of cocaine;

b) There were a significant number of observations of Mr. Gelowitz coming and going to the four locations that were suggested to be safe houses and the subject of the search warrant, plus his own residence. The stops at the four locations, putting aside his own residence, were often short duration and Mr. Gelowitz frequently, though not invariably, was seen to carry a bag in or out of the place where he stopped. The contents of the bags were never seen;

c) Mr. Gelowitz had his own key to two of the four locations, plus his own home;

d) During one of the longer stops of 45 minutes at the 1 st Avenue property, Mr. Gelowitz had a short-duration visit from a Mr. Cardinal, whom Mr. Gelowitz let into the 1 st Avenue property. One of the confidential informers had described Mr. Cardinal as a drug dealer; and

e) The RCMP had received advice from two confidential informants that Mr. Gelowitz was dealing drugs, but the informers provided no more particulars about this, apart from the kind of drugs they believed he was dealing. As noted, one of those informers also provided information about Mr. Cardinal. [ 12 ] A much more detailed

summary of this evidence can be found in the Search Warrant Ruling. [ 13 ] As I have said, I found this evidence insufficient for the issuing justice to have granted the search warrants, applying the objective standard of reasonable probability or reasonable belief. I did not find that Constable Chamberlain had acted in bad faith or that he had tried to misrepresent the evidence in the ITO.

Rather, it was a case where I found Constable Chamberlain's subjective beliefs, as stated in the ITO, could not be sustained on the objective standard of probable grounds to search the five locations. [ 14 ] In short, Constable Chamberlain executed a search warrant on the five locations, a warrant that he had obtained based on an ITO that did not set out to mislead the issuing justice.

When the warrant was executed, Constable Chamberlain continued to subjectively believe that he had reasonable grounds for the search and this belief was, at the time of the search, endorsed by what Constable Chamberlain understood to be a valid warrant issued by a Judicial Justice. [ 15 ] I did, however, note two points of concern relating to Constable Chamberlain's belief that all four locations – and again I put aside Mr. Gelowitz's own residence – were safehouses. [ 16 ] I found there was evidence in the ITO to suggest two of these locations could well have been occupied by persons other than Mr.

Gelowitz, contrary to Constable Chamberlain's stated belief. Constable Chamberlain had stated in the ITO that, based on his experience as a police officer and his observations of Mr. Gelowitz, at least the four locations searched were safehouses rented in the names of third parties. Constable Chamberlain believes Mr. Gelowitz did this to evade detection of him having care and control of those locations. [ 17 ] I found there may be reason to believe this for two of the locations for which Mr.

Gelowitz had a key, but I noted that the evidence in the ITO for two other locations provides a reasonable basis to believe that persons other than Mr. Gelowitz might be living in those residences. In particular, I noted there was no observation of Mr. Gelowitz using a key to enter either the Eaglenest Crescent residence or the apartment at 152 McIntyre Crescent. I noted that on July 11, 2019: Mr. Gelowitz was seen entering the Eaglenest Crescent property with his spouse and then departing with two other people.

Those other people were not seen entering the residence, and thus it is reasonable to infer they were there before Mr. Gelowitz arrived. This suggests there may have been residents living in the home, or at least that persons other than Mr. Gelowitz had access to the home. [ 18 ] I noted this diminished – that is, it undermined – Constable Chamberlain's belief that this was a safehouse registered by Mr. Gelowitz in somebody else's name. [ 19 ] An even stronger case could be made that there was a resident living in Unit 195 of 152 McIntyre.

According to the ITO, a Douglas Morin was the registered tenant of the apartment. On July 31, 2019, a person later identified as Mr. Morin was seen to leave that unit and drive off in a car that was registered in his name. Mr. Gelowitz did not have a key to that unit. In my view, this very much undermines Constable Chamberlain's belief that 152 McIntyre was rented in Mr. Morin's name to evade detection that Mr. Gelowitz was

using it as a safehouse. There was good reason on the face of the ITO to believe that it was occupied by others. [ 20 ] In my view, these facts ought to have led Constable Chamberlain to question his own belief that all four of the locations were safehouses. I do not find or suggest that he misstated facts in the ITO or that he attempted to mislead the Judicial Justice. As noted, these are all facts contained in the ITO. However, I do find that these facts ought to have led Constable Chamberlain to more carefully question his own belief that all four of these places were safehouses that Mr.

Gelowitz put in someone else's name to evade detection. This should also have caused him to question whether he should be seeking a warrant to search all five locations or whether further investigatory work should have been done to determine if the effect of the warrants might be to search the private residences of persons who are not the target of the investigation. Other Charter Breaches [ 21 ] I will briefly comment on other Charter breaches. The Crown agrees that, as a result of the search warrants being invalid, other Charter breaches followed. First, Mr.

Gelowitz was detained without charge or process on August 1, 2019, from 8:00 in the evening (or 20:00 hours), until 11:54 (or 23:54) that same night. The purpose of the detention was to hold Mr. Gelowitz while the search warrants were executed. Since I have now found the search warrants to be invalid, the Crown acknowledges there is no longer a legal basis for the detention and it violated Mr. Gelowitz's rights to be free from arbitrary detention under s. 9 of the Charter . [ 22 ] Mr. Gelowitz's pockets were also searched during the detention, which is now revealed to be a further breach of his s. 8 rights.

However, as the Crown notes, the fact these are now recognized as Charter breaches arises solely out of my finding that the search warrants were not validly issued. [ 23 ] In addition to this, the Crown acknowledges that I can consider a breach of s. 490 of the Criminal Code that occurred between August 1, 2020 and September 30, 2020 in this s. 24(2) analysis. As set out in detail in my ruling on the first voir dire , the items seized from the 1 st Avenue apartment were detained for more than a year without authorization of a superior court judge contrary to s. 490(3) of the Criminal Code .

While the RCMP obtained necessary extensions to detain these items from the Provincial Court in October 2019 and April 2020, these authorizations lasted only to August 1, 2020 when it became necessary to either lay a charge or seek an order for further detention of the things seized from a judge of this court. The RCMP did neither until September 30, 2020, when a charge was laid. [ 24 ] The Crown admitted the s. 490(3) breach and that this constitutes a breach of Mr. Gelowitz's s. 8 rights under the Charter .

However, I held in the first voir dire that despite that breach and the wrongful continued detention of the items, the evidence was nevertheless admissible under s. 24(2) of the Charter . Crown acknowledges that despite that ruling, I can now consider that breach again in the context of the entirety of the RCMP's conduct in this s. 24(2) application.

Section 24(2) [ 25 ] Section 24(2) of the Charter requires that evidence obtained in a manner that infringes Charter rights of an accused person is to be excluded at trial if it establishes that, having regard to all the circumstances, the admission of that evidence in the proceeding would bring the administration of justice into disrepute. [ 26 ] I reviewed the applicable legal principles in my ruling on Voir Dire #1.

Essentially the burden is on the accused to show that admission of the evidence would bring the administration of justice into disrepute, having regard to three lines of inquiry set out by the Supreme Court of Canada in: R. v. Grant , 2009 SCC 32 . [ 27 ] The objective of the analysis is to maintain the long-term integrity and public confidence in the justice system. It is not directed at punishing the police or compensating the accused: R. v. McColman , 2023 SCC 8 at para. 59 . [ 28 ] The analysis is objective and evaluated from the perspective of a reasonable person: Grant , para. 68 ; McColman , para. 53 .

The Seriousness of the Charter -Infringing Conduct [ 29 ] The first line of inquiry assesses the seriousness of the state conduct that led to the Charter breach. It focuses on the extent to which that conduct deviates from the rule of law and whether it is conduct from which the court should dissociate itself. The court is to "situate the conduct on a scale of culpability": McColman at para. 58 . Minor or inadvertent violations are at one end of the spectrum while wilful, deliberate, or reckless disregard to Charter rights are at the other: Grant at para. 74 , R. v.

Sunner , 2017 BCSC 2444 at para. 11 . [ 30 ] The inquiry is fact specific and the court must ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the conduct: McColman , para. 58 . [ 31 ] For this stage of the analysis, the Crown relies heavily on Sunner . There, Justice Riley considered whether to admit evidence under s. 24(2) that had been obtained pursuant to a search warrant that he had found invalid in an earlier ruling. The earlier ruling is R. v. Sunner , 2017 BCSC 2445 .

There, Riley J. found the officer who swore the affidavit for the ITO had complied with his duty to make full, frank, and fair disclosure, and that the ITO was not improperly drafted. There was one error that had to be excised and two paragraphs that contained conclusory statements, but once excised, these did not undermine the validity of the warrant. [ 32 ] However, Riley J. found that one key element of the ITO was based on speculative information and thus was insufficient to meet the objective standard of credibly-based grounds to support the issuing of the warrant.

He therefore found that the issuing justice could not have been satisfied that there were reasonable grounds to believe evidence of drug trafficking would be found in the accused's

residence, and he held that the warrant was invalid. [ 33 ] This meant that the officers had conducted a search of the accused's home using what was then understood to be a validly-issued search warrant, based on grounds that the officer honestly believed to be sufficient to ground the warrant, but which Riley J. later found were insufficient.

There are obvious parallels to this case. [ 34 ] Analyzing these circumstances under the first line of inquiry in Grant , Riley J. found that the officer could not be found to have been acting in good faith because, despite his honest subjective belief, he did not have objectively reasonable grounds for the search warrant. However, nor was the officer acting in bad faith, given his genuine belief there were adequate grounds for the warrant. Citing R. v. Vanhorn , 2017 BCSC 379 at para. 34 , and R. v.

Voong , 2013 BCCA 527 at para. 94 , Riley J. observed that the absence of good faith does not mean the officer's conduct was in bad faith, and the absence of bad faith does not equate with good faith. He found the officer's conduct therefore fell in the middle of the spectrum. [ 35 ] Justice Riley noted there is a considerable volume of case law to support the proposition that Charter -infringing conduct that violates s. 8 is less serious when the police believe they are acting under a valid warrant.

He said the constable in the case before him "made a bona fide attempt to comply with the legal requirements for this search of a residence" and the warrant was valid on its face when the search was conducted. Thus, this was not a deliberate or flagrant violation of the right. Again, there are strong parallels to the present case. [ 36 ] Justice Riley further noted that the ITO was not misleading or poorly drafted. It did not overlook the key statutory requirement and the police took no shortcuts.

Rather, police made a reasonable effort to gather the necessary evidence, including surveillance that lasted over a month, and conducted undercover drug purchases. [ 37 ] The accused in that case argued that there was no urgency demonstrated for the warrant and that police could have taken more time to get the investigation right. However, Riley J. noted that police were investigating an ongoing dial-a-dope operation that was trafficking dangerous and addictive drugs, which was conduct harmful to the community.

The investigation had reached the point where the officer believed he had sufficient grounds for a warrant and therefore applied for the warrant. Justice Riley observed that a reasonably-informed member of the public might have fairly asked why the drug activity under investigation would be allowed to continue without taking enforcement measures in those circumstances.

In his view, this provided an adequate explanation for the officer's conduct, and he found that while the officer acted with what later proved to be inadequate basis for the warrant, he did not act precipitously in light of his sincere beliefs. [ 38 ] Weighing all of this under the first line of inquiry, Riley J. found that the Charter -infringing conduct was "by no means a trivial or minor breach". The grounds for the warrant, he said, were deficient in one key respect, but he said they were not woefully deficient.

He assessed the conduct as weighing slightly in favour of admitting the evidence. [ 39 ] In the present case, the Crown argues that the circumstances in Sunner largely capture what happened here, and the nature of the Charter -infringing conduct in this case should similarly weigh in favour of admission. The Crown says this is also true of the unlawful detention and search of Mr. Gelowitz, since all that activity emanated from the issuance of and reliance on the search warrant that the police believed to be valid. [ 40 ] The Crown also relies on R. v.

Wong , 2010 BCCA 160 , where the facts are different, but where the police were found to have acted in good faith which strongly influenced the s. 24(2) analysis, particularly under the first line of inquiry in Grant . [ 41 ] Mr. Gelowitz argues there are important factors to distinguish Sunner . First, his counsel points out that Riley J. said he had "no difficulty concluding that there was a basis on which the issuing justice could be satisfied that Mr.

Sunner was involved in the drug activity under investigation." Here, however, I found in the Search Warrant Ruling that there was not sufficient evidence to reach that conclusion about Mr. Gelowitz. [ 42 ] I agree with counsel for Mr. Gelowitz that this point of distinction has some sway, but I also note that I found there was very good reason to suspect, even strongly, that Mr. Gelowitz was involved in drug trafficking, though this did not rise to the standard of objectively-reasonable grounds.

It was, however, the genuine belief of Constable Chamberlain and there was at least some evidence in the ITO to give rise to that belief. [ 43 ] Mr. Gelowitz also points out that Riley J. found that "the issuing justice could have been satisfied that drug offences had occurred", whereas here I found the evidence of drug transactions was lacking. I agree this is an important distinguishing feature. In Sunner , the investigation included a number of undercover drug purchases from a Mr. Brar, who was one of the targets of the investigation. He, along with Mr. Sunner and a Mr.

Dhatt, had been identified as being associated with the same dial-a-dope phone line that had been the centre of the investigation. Through these undercover purchases, police came to believe that both Mr. Brar and Mr. Sunner were involved in selling drugs in the dial-a-dope operation using the same phone line. [ 44 ] Here there were no undercover purchases of drugs nor attempts to do so. As the Crown pointed out during the challenge on the search warrant, since Mr.

Gelowitz was being investigated as a mid-level supplier rather than a street-level dealer, it is not surprising that there is not evidence of those kinds of transactions, undercover or otherwise. I agree that the nature of what might be expected in a dial-a-dope investigation may be different to this one, but I still consider the shortage of observed transactions to be noteworthy, particularly in light of my finding in the Search Warrant Ruling that the evidence in the ITO of Mr.

Gelowitz being a mid-level supplier is quite weak. [ 45 ] In my view though, the fact that most significantly distinguishes this case from Sunner is that in Sunner the investigation focused on three persons of interest, and the warrants authorized the search of only two residences and a car. One of those residences was Mr. Sunner's and the other was Mr. Brar's. The car searched was Mr. Brar's. As noted, both these gentlemen were the target of the investigation. [ 46 ] Here there were five different residences searched in respect of an investigation that was focused only on Mr. Gelowitz. The

justification to search these five residences advanced in the ITO was the belief that Mr. Gelowitz was a mid-level supplier and four of the five locations (again Mr. Gelowitz's home being the exception) were believed to be safehouses where Mr. Gelowitz stored drugs or cash. The ITO specifically asserts that Mr. Gelowitz rented these residences in the names of others to evade detection.

As I have said earlier, there is significant evidence in the ITO to suggest that at least two of these residences may have been occupied by others, and rather compelling evidence for one of those that the person in whose name the apartment was registered was in fact the occupant.

Despite this evidence, Constable Chamberlain sought a search warrant for all five locations without conducting further surveillance or investigations to better understand whether at least these two alleged safehouses were empty or occupied. [ 47 ] Constable Chamberlain ought to have recognized the evidence that undermined his belief that all four locations were safehouses, yet he used almost identical language to describe his belief that all four were rented in the names of third parties so Mr. Gelowitz could evade detection. With the exception of noting that Mr.

Gelowitz was seen to have a key to the 1 st Avenue apartment and the apartment at 166 McIntyre, Constable Chamberlain treated the evidence of all four alleged safehouses as being equally compelling, without contemplating the evidence that cast doubt on that belief for at least two of the alleged safehouses. [ 48 ] Counsel for Mr. Gelowitz argues this is a form of misrepresentation. They do not suggest that Constable Chamberlain set out to deliberately mislead the issuing justice since the underlying facts are stated in the ITO and can be scrutinized.

However, they do say that Constable Chamberlain's largely similar description of each safe house without reference to potentially contrary evidence had the effect of misleading or potentially misleading the issuing justice. They also say this represents a “scattergun” approach to the search that ought to have been more refined, with more focused surveillance, to determine if, in fact, all four of these locations were actually vacant or if any of them may be occupied. [ 49 ] I find this latter submission more persuasive.

In my view, the evidence in the ITO discloses no good reason to seek a warrant to search either the Eaglenest Crescent residence or 152 McIntyre. The evidence in the ITO relating to Mr. Gelowitz's attendance at those two locations amounted to this:

a) He attended the Eaglenest Crescent residence three times during the nine days of direct surveillance for short-duration stops, carrying a bag as he went in and out of the residence. On one of those occasions, the bag appeared light going in and weighted coming out. He was not seen to use a key to enter. On one occasion, there were people already at the residence when he arrived who left at the same time as he did. Mr. Gelowitz also potentially attended Eaglenest Crescent once during the four additional days of vehicle tracking.

b) Mr. Gelowitz attended at 152 McIntyre on three or perhaps four occasions during the nine days of direct surveillance on short-duration stops. (I say perhaps four, because on July 31, he was let into 152 McIntyre, left shortly thereafter, went back to 166 McIntyre, but returned to 152 two minutes later. Arguably this might be said to be a fourth occasion when he attended there.) On one of the attendances, he was seen bringing a black and brown package into the building, and on the other two occasions he was seen carrying a duffel bag.

On what might be considered a fourth attendance, he was carrying nothing when he left and nothing when he returned. On that occasion, he was let into the building by another person who came out from the unit and let him into the building and then returned to the unit with him. It is also possible that he attended 152 McIntyre once during the additional vehicle tracking surveillance, although he could have been at 166 McIntyre which is in the same building complex. Since there were no direct observations or no direct surveillance during the vehicle tracking, this cannot be determined.

As I noted earlier, another person was seen to leave the unit at 152 McIntyre at one point and drive off in a car registered to that person's name. That person was also the registered tenant of the unit. [ 50 ] Mr. Gelowitz has no privacy interest in either the Eaglenest Crescent residence or the 152 McIntyre apartment. He has no standing to challenge the validity of the warrants to search them. However, those warrants were issued under the same ITO and in the same process as the three other warrants. The target of the investigation for all five warrants, as I have said, was Mr. Gelowitz and only Mr.

Gelowitz. [ 51 ] In my view, the search of all five residences, and the inclusion of Eaglenest Crescent and 152 McIntyre in particular, is a significant overreach in the investigation. The RCMP have conducted searches of two residences that, on the face of the ITO, could well have been occupied by persons other than Mr. Gelowitz. They did so without conducting specific surveillance or investigations to better understand whether these were truly empty residences or whether they were someone's home.

While the evidence does not disclose whether these residences were in fact occupied by others, that inference is certainly patent on the ITO and suggests the need for further investigation before obtaining a warrant to search what is potentially the home of a person who is not the target of the investigation. [ 52 ] The result of this conduct was that warrants were issued under a single ITO that permitted invasive searches on at least two residences to which Mr. Gelowitz had no independent access (i.e. a key) and for which there was evidence that others might actually be living there.

This means that persons who are not the subject of the investigation could well have had their homes and their own privacy invaded and their own s. 8 Charter rights breached for no other reason than that Mr. Gelowitz was let into their homes on three or four occasions for short-duration stops carrying a bag. [ 53 ] As I said in the Search Warrant Ruling, I would not suggest how the RCMP should conduct its investigations, but it does seem that more scrutiny of the state of occupancy of at least these two locations was called for. Although Mr.

Gelowitz himself has no privacy interests in these locations and no standing to challenge those warrants, the overreach in searching these locations on the basis of the evidence in the ITO and in an investigation that targeted only Mr.

Gelowitz is, in my view, state conduct from which the court should distance itself. [ 54 ] In my view, the court cannot sanction an overly broad search of what could reasonably be the private residences of persons who are not the subject of the investigation, absent compelling grounds. [ 55 ] Since the warrants to search those places were based on the same ITO that supported the searches of the 1 st Avenue apartment and Mr.

Gelowitz's residences, this conduct cannot be ignored in considering the broader context of the seriousness of the Charter -infringing conduct. [ 56 ] In my view, this is a significant factor that distinguishes the present case from Sunner . I accept that Constable Chamberlain did

not act in bad faith and my finding that the warrants at issue, namely the 1 st Avenue and Mr. Geolowtiz’s residence, were invalid was substantially a matter of the evidence in the ITO falling short of the required standard. However, I find the overbreadth of the exercise that resulted in the search of at least Eaglenest Crescent and 152 McIntyre ought not be condoned. [ 57 ] I find this makes the Charter -infringing conduct more serious than it was in Sunner and weighs in favour of excluding the evidence. [ 58 ] I would add that I have considered what must now be accepted as an arbitrary arrest of Mr.

Gelowitz during the execution of the warrants. I agree with the Crown, though, that this was done in reliance on what was believed to be a valid warrant and that this does not significantly impugn the police conduct any more than conducting the searches themselves. The Impact of the Breach on Mr. Gelowitz’s Charter-Protected Interests [ 59 ] The second line of inquiry under Grant focuses on the effect of the breach specifically on the accused's Charter -protected interests.

It seeks to assess a concern that admitting evidence obtained through a Charter breach could send a message to the public that Charter rights are of little actual value to citizens. The Charter -protected interest is considered from the perspective of the accused and the court must evaluate the extent to which the breach actually undermines the accused's interests. [ 60 ] I need not say much here. The breach in this case included a search of Mr. Gelowitz's private residence which is well recognized as a highly-intrusive search. In Wong , it was observed to be second only to a search of the person.

This makes the breach in this case unquestionably serious. The arbitrary detention and incidental arrest of Mr. Gelowitz's pockets adds to the seriousness of the impact. [ 61 ] I agree with the Crown, though, that Mr. Gelowitz had a lesser expectation of privacy in the 1 st Avenue apartment. He does not live there and, given the nature of the items that were found there, I agree with counsel for the Crown that the expectation of privacy for that location is more in the nature of a place of business than a private residence.

Since the evidence to be tendered all comes from that location, this might dampen somewhat the pull towards exclusion under this second line of inquiry, but it cannot overcome the very serious invasion of privacy occasioned by the search of Mr. Gelowitz's home. Society’s Interest in the Adjudication of the Case on its Merits [ 62 ] The third line of inquiry focuses on the truth-seeking function of the criminal trial process and asks whether that function is better served by the admission or the exclusion of the evidence.

Relevant factors include the reliability of the evidence, the importance of the evidence to the prosecution's case, and the seriousness of the offence at issue: Grant , paras. 79 to 85 . [ 63 ] There is no question that this factor pulls heavily towards inclusion in the present case. The evidence is highly reliable and essential to the Crown's case. The offences at issue are very serious. The volume of fentanyl – 163 grams plus some 150 tablets – together with the other drugs and trafficking paraphernalia seized, is indicative of a high-volume drug trafficking operation: see for example, R. v.

Kim , 2022 BCSC 518 at paras. 6-13 . [ 64 ] The public interest in a trial on the merits in this case is significant. The Court of Appeal has recognized that the opioid crisis has sparked a public safety emergency in British Columbia and that every day fentanyl continues to claim lives in our communities: R. v. Smith , 2017 BCCA 112 at para. 44 . [ 65 ] The Supreme Court of Canada has said that trafficking in fentanyl and its analogues has "altered the landscape of the substance abuse crisis in Canada revealing itself as public enemy number one": R. v.

Parranto , 2021 SCC 46 at para. 93 . [ 66 ] Given the large volume of fentanyl in this case, not to mention the other drugs, there is a strong public interest in seeing a trial on the merits that would include the admission of this evidence. [ 67 ] Likewise, it is widely recognized that offences concerning handguns, particularly loaded ones, are very serious: R. v. Le , 2019 SCC 34 at para. 298 .

As I have said, one of the handguns in this case was loaded with one round. [ 68 ] On the other hand, as Riley J. pointed out in Sunner at para. 33, the seriousness of the offence can cut both ways in that for more serious charges there is also a greater public expectation that the charges will be properly investigated in a Charter -compliant manner. In this case, the ITO stated that Constable Chamberlain expected to find cocaine in the search. Evidently the fentanyl was not expected and was not even mentioned by the confidential informants.

In this respect, it might be said that even the police did not expect the alleged offence would be as serious as it has turned out to be. However, since Constable Chamberlain believed that Mr.

Gelowitz was a mid-level supplier, he had to have anticipated finding a large amount of drugs and the public would expect an investigation of that nature to be properly conducted. [ 69 ] There is also an expectation of the public that search warrants for people's homes will not be lightly sought and the basis for search warrants of such residences, particularly homes that may be occupied by persons who are not the target of the investigation, will be carefully considered and investigated. [ 70 ] That said, having regard to the loaded firearm, the large volume of drugs seized (particularly the large amount of fentanyl), and the drug crisis from which this province cannot seem to escape, I find that society's interest on the adjudication of this case on its merits pulls strongly in favour of admission, despite the compelling public interest in a properly-conducted Charter -compliant investigation.

Balancing [ 71 ] I turn then to the balancing stage where these three lines of investigation are weighed and balanced by the court.

[ 72 ] At the balancing stage, the first two lines of inquiry will typically work in tandem and pull towards exclusion of the evidence, although it is not necessary for both to support exclusion for a court to determine that the administration of justice would be brought into disrepute if the evidence were admitted: R. v. Le , 2019 SCC 34 at para. 141 .

As stated in that case: "It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion." [ 73 ] The third line of inquiry will typically pull towards a finding that admitting the evidence will not bring the administration of justice into disrepute. As I have said, it does so strongly in this case.

That said, the third line of inquiry cannot turn the assessment into a rubber stamp or overwhelm the analysis: see Le at para. 142 and Sunner at para. 35. [ 74 ] Fundamentally, the balancing exercise focuses on the long-term implication for the repute of the administration of justice, rather than the public's short-term desire for a conviction: R. v. Reddy , 2010 BCCA 11 at para. 94 .

As stated in Grant at para. 84 , “the goals furthered by s. 24(2) ‘operate independently of the type of crime for which the individual stands accused’” . . . [ 75 ] Looking at the circumstances of this case, there is no question that the second inquiry pulls heavily towards exclusion and the Crown properly concedes as much. As I have said, I find the third line of inquiry pulls strongly towards inclusion. This leaves the first line of inquiry – the seriousness of the Charter -infringing conduct – as effectively the determining factor.

As Justices Brown and Martin said in Le : Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility . . . [ 76 ] I find the Charter -infringing conduct in this case is sufficiently serious that, when combined with the impact of the Charter breach on Mr. Gelowitz, the admission of this evidence would bring the administration of justice into disrepute. I make this determination with considerable reluctance.

I recognize that the exclusion of the evidence means the Crown will be unable to proceed with its case. It is a serious case with a serious offence. The evidence suggests a sophisticated and high-volume trafficking operation in many types of drugs, but especially one – fentanyl – that kills highly vulnerable British Columbians on a daily basis. And there was a substantial volume of fentanyl found here. [ 77 ] The Crown makes a compelling case that the Charter -infringing conduct is not dissimilar to that found in Sunner .

However, the breadth of the search of residential properties, including the two for which there was substantial and patent risk that they were the private homes of persons not targeted by the investigation, makes for a strong pull towards exclusion. [ 78 ] When considered alongside the impact of the Charter -infringing conduct of Mr.

Gelowitz, being a search of his own private residence, I find the long-term implications for the repute of the administration of justice requires the evidence be excluded, despite the weight of a third factor pulling heavily in the other direction. [ 79 ] The long-term repute of the administration of justice is undoubtedly aided by pursuing the adjudication of offences relating to trafficking in fentanyl. However, the path to this important objective cannot intrude through the living rooms or the bedrooms of those who might find themselves innocently in the way of a drug investigation.

The long-term repute of the administration of justice calls for greater investigatory scrutiny when the police seek to cast a net as wide as the one set in this case. [ 80 ] For these reasons, I find the evidence should be excluded under s. 24(2) and I grant Mr. Gelowitz's application to that effect. “Kirchner J.”