R. v. Carstairs, 2020 BCPC 300

Citation: R. v. Carstairs 2020 BCPC 300 Date: 20200520 File No: 107246 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATHEW MICHAEL JAMES CARSTAIRS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Crown: A. Varesi Counsel for the Accused: D. Gagnon Place of Hearing: Kamloops , B.C. Date of Hearing: January 17, 2020 Date of Judgment: May 20, 2020 A Corrigendum was released by the Court on March 14, 2022. The changes have been made to the text and the Corrigendum is

appended to this document. [1] The accused, Mr. Carstairs, is on trial on a 4 count Information. The Crown has proceeded by Indictment.

The charges are asfollows: Count 1, possession of Fentanyl for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; Count 2, possession of methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; Count 3, possession of cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act; Count 4, possession of stolen property, contrary to s. 354(1) of the Criminal Code. [2] All four counts are alleged to have occurred in Kamloops, British Columbia on December 10, 2018. [3] In conformance with the Garofoli procedures as set out in R. v.

Wilson, 2011 BCCA 252 , 2011 B.C.C.A. 252 atparagraph 63, and with the agreement of the Crown, the accused sought and was granted a voir dire and an opportunity cross examinethe Informant in order to determine whether the Search Warrant in this case was validly issued and executed. [4] The accused has submitted in particular that the s. 487.1 Search Warrant by telecommunication authorizing a search of his motelresidence (“Unit 120”) between the hours of 2:30 a.m. and 6:00 a.m. was not granted in conformance with the requirements of s. 488 ofthe Criminal Code.

He argues that his right to be secure against unreasonable search or seizure as granted by

section 8 of the CanadianCharter of the Rights and Freedoms was thereby violated. [5]

Section 488 of the Criminal Code states as follows: A warrant issued under

section 487 or 487.1 shall be executed by day, unless (

a) the justice is satisfied that there are reasonable grounds for it to be executed by night; (

b) the reasonable grounds are included in the information; and (

c) the warrant authorizes that it be executed by night. “Day” is defined in s. 2 of the Criminal Code, which states that: “day” means the period between six o’clock in the forenoon and nine o’clock in the afternoon of the same day; [6] If a s. 8 Charter violation is found, the accused argues, the court should exclude the evidence under s. 24(2) of the Charter. TheCrown responds that no violation of the accused’s s. 8 Charter rights occurred but that if there was such a violation, an exclusion of theevidence obtained is not warranted in these circumstances.

The Evidence Generally [7] The present counts arose out of events occurring in Kamloops, British Columbia on or about December 10, 2018. The evidenceplaced before this court included an agreed statement of facts in both the voir dire and the trial proper, a copy of the Information toObtain presented to the Judicial Justice and a copy of the Search Warrant subsequently issued. [8] It should be pointed out that the copy of the Information to Obtain a s. 487.1 Search Warrant exhibited in these proceedings hadbeen vetted and contained some redactions.

Also, the exhibited copy of the Information did not show the signature of the Informant, Cst.Jean Francois Lapierre of the Kamloops RCMP. Mr. Varesi, Crown counsel, and Mr. Gagnon, counsel for the accused, both stated thatthey were content to have the court proceed with this copy of the Information to Obtain as if it had been signed in conformance with therequirements of the Criminal Code. I have agreed to proceed with it on that basis. [9] In addition, oral evidence was given by Cst. Lapierre, who was produced to be cross-examined by defence counsel.

The accusedalso gave brief evidence in direct examination. [10] On December 10, 2018, at about 1:48 a.m., Cst. Lapierre sent the Information to Obtain a Search Warrant to the Justice Centreby facsimile transmission. The Impracticability of a Personal Attendance before a Justice [11] At paragraph 26 of the Information to Obtain, Cst.

Lapierre set out his belief that “it would be impracticable” in thecircumstances to appear personally before a Justice or a Judge to make application for a warrant, that no Judge or Judicial Justice wasthen available in the City of Kamloops and none would be available until December 10, 2018 “in the morning.” [12] It is clear that Judicial Justice Padron found, by the terms of the s. 487.1 Search Warrant signed by her, that there werereasonable grounds for dispensing with an Information presented personally and in writing. [13] In these circumstances, I am not prepared to say that the Judicial Justice was wrong in finding such grounds existed. [14] Madam Justice Saunders, speaking for our Court of Appeal in R. v.

Erickson, 2003 BCCA 693 , 2003 B.C.C.A. 693, atparagraph 33, stated the following with respect to the use of the word “impracticable” as it appears in s. 487.1(1): Parliament has chosen to use the word “impracticable”, and clothed the process with extra protection for an accused through the

requirement to file a transcription of the conversation. It is reasonable to conclude that “impracticable” means something less than impossible and imports a large measure of practicality, what may be termed common sense. [ 15 ] It strikes me, that with a modest measure of practicality and common sense, a local Judge or Judicial Justice might be spared a personal appearance by an Informant at their doorstep at 2:00 a.m. with all that that entails.

The Chief Judge has made provision, where allowed by law, for such matters to be heard remotely by a Judicial Justice designated for that purpose in accordance with s. 487.1 of the Code . Evidence of the Commission of an Offence [ 16 ] The Information to Obtain alleged that there were reasonable grounds to believe that the offence of possession property obtained by crime had been committed on December 9, 2018. On that date, at 4:00 a.m., Cst. Lapierre conducted a curfew check on the accused at Unit 120 and observed that the accused was wearing a gold necklace.

The officer confirmed that the necklace worn by the accused December 9 was identical to one which the accused was advertising for sale on the internet. [ 17 ] The Information to Obtain set out details of the police investigation into the theft of a distinctive gold chain from Fifth Avenue Jewellers in Kamloops, British Columbia on September 17, 2018. [ 18 ] In brief, the allegation was that the chain, offered for sale at $4,095, had been taken from the jewellery store by a male who tried it on and then ran off without paying for it.

High quality video images from the store resulted in identification of the thief, by police officers who knew him, as Danny Solomonson. Officers also knew Solomonson to be an associate of the accused. [ 19 ] On December 7, 2018, the accused was advertising a gold necklace for sale for $2,000 on Facebook Market Place using his full name. The chain, which was depicted on the website, was identified by the police officer investigating the theft and by employees of the jewellery store as the same one stolen on September 17.

The chain was described by the employees as “unique”. [ 20 ] The accused also had the same necklace, with the same images, offered for sale on Kijiji. The Kijiji ad was posted December 5, 2018. An undercover officer made an offer on the Kijiji account without response from the account holder as of December 9, 2018, though the necklace ads remained in place on the accounts on both platforms as of 9:06 p.m. on that date. [ 21 ] On the basis of the Information to Obtain sworn by Cst.

Lapierre, there were strong grounds to believe that the accused had been in possession of the stolen chain during the December 9, 2018 curfew check and that seizure of the chain and the other listed items would afford evidence of the specified offence. The Granting of the Search Warrant The Search Warrant was granted by the Judicial Justice and authorised a search of motel Unit 120 located at the Motel 6, 1763 East TransCanada Highway in Kamloops, British Columbia.

The signed Search Warrant was returned by the Judicial Justice at 2:28 a.m. and authorized an entry and search of the premises at night, specifically between 2:30 a.m. and 6:00 a.m. on December 10, 2018. [ 22 ] The Search Warrant also recorded that Judicial Justice found there were reasonable grounds to believe that: • on December 9, 2018 the offence of possession of property obtained by crime had been committed, contrary to s. 354(1) of the Criminal Code . • the items listed, including the 24” gold chain as particularised, would afford evidence of the commission of the offence. • the listed items, or some part of them, were at Unit 120. [ 23 ] The listed items authorized to be searched for included 1) a 10 kt yellow gold chain described as OG curb link, 24 inch chain with lobster style clasp, 2) identification papers and documents bearing the unit and motel address, and 3) electronic devices, including computers and or smartphones used to place advertisements on Facebook and Kijiji.

Authorization to Execute the Warrant by Night [ 24 ] The lawful execution of a Search Warrant by night requires compliance with s. 488 of the Criminal Code as previously mentioned. To summarize the three requirements, it will be justified where there are reasonable grounds for nighttime execution, where those reasonable grounds are included in the Information and where the warrant authorizes an execution by night. In paragraph 34, the Informant, Cst. Lapierre, addressed his justification for the nighttime execution.

In that paragraph he mentioned the time sensitive nature of the investigation, specifically that the necklace “is being sold” on two separate web sites and that the necklace could be sold at any time. Cst. Lapierre stated in sub-paragraph 34(

a) that: The further this Search Warrant is delayed, the more chance that the necklace and any other evidence may be lost, preventing Kamloops RCMP from investigating this crime; [ 25 ] In cross-examination during the voir dire , Cst. Lapierre agreed that the phrase “is being sold” may have been a less accurate choice of words than saying that the necklace was “advertised” for sale. He noted that English is his second language. His word choice did not, in my view, detract from his point that the necklace could have been sold at any time, even at 4:00 a.m.

[ 26 ] At sub-paragraph 33(

i) of the Information Cst. Lapierre referred to the fact that one of his colleagues, Cst. Kings, had confirmed with Central Monitoring, that the accused was then currently at Unit 120 and was abiding by his bail curfew. At sub-paragraph 34(

b) Cst. Lapierre proposed that the night search would be timed with the accused’s curfew check and would “guarantee” his presence inside the unit. [ 27 ] In cross-examination on the voir dire , Cst. Lapierre also conceded that “guarantee” may have been the wrong word to use, but that a search by night during curfew hours would have increased the likelihood that the accused would be present inside his room.

Clearly there would be less cause to expect the accused to be present in the room with the necklace outside curfew hours. [ 28 ] I am satisfied that the Judicial Justice was entitled to find, as she did, that there were reasonable grounds for nighttime execution of the s. 487.1 Search Warrant. The necklace had in recent days been put up for sale on two websites and was apparently still listed for sale.

It was an easily moveable piece and indeed had been worn by the accused during the early morning curfew check on December 9. [ 29 ] Given the circumstances as set out in the Information, the Judicial Justice was entitled to find reasonable grounds to authorise the warrant and to provide for execution of the warrant by night.

The evidence heard on the voir dire disclosed no errors of significance in the Information put before the Judicial Justice or any evidence of bad faith. [ 30 ] Once reasonable grounds for authorising a night warrant are established and those reasonable grounds are included in the Information, the test is met. All that remains is to ensure that the warrant authorizes execution by night.

Unlike s. 185 of the Code , s. 488 does not require the Informant to establish that other investigative procedures have been tried and failed, or otherwise to establish the investigative necessity element required of an affiant in a wiretap application. The Execution of the Warrant [ 31 ] The Search Warrant was executed by police officers at 3:15 a.m. on December 10, 2018. The accused answered the door and was observed to be wearing the gold chain necklace that had been reported stolen on September 17, 2018.

The accused was arrested for possession of stolen property and was removed while the room was searched. [ 32 ] The parties have further agreed that the accused was one of the renters of the motel room. The accused was on a recognizance at that time on unrelated charges.

A condition of that recognizance required the accused to reside at the motel room and to obey a curfew from 9 pm to 6 am each day. [ 33 ] In executing the Search Warrant, officers found items in Unit 120 including: - a bank card in the name of the accused, - a laptop computer with “Matt” on the login screen, - income tax and employment insurance forms in the name of the accused, - an air gun resembling a semi-automatic firearm, - $950 cash - 7.3g fentanyl - 14g methamphetamine - 5.3g cocaine - and a variety of drug paraphernalia as set out in the agreed statement of facts. [ 34 ] The value of the drugs was admitted by the parties to be approximately $1,850.

Conclusion [ 35 ] For the reasons set out above, I cannot find that the Search Warrant was improperly granted or that the accused’s s. 8 Charter rights were infringed by the execution of the s. 487.1 Search Warrant. [ 36 ] Accordingly, it is not necessary to embark on a s. 24(2) Charter analysis to determine whether, in the event I had found such an infringement, the evidentiary results of the search should be excluded as inadmissible. [ 37 ] The evidence relating to the search of the accused’s motel unit and the items found is admissible on the trial proper. ____________________________ S.R.

Harrison Provincial Court Judge CORRIGENDUM - Released March 14, 2022

In the Ruling on Voir Dire dated May 20, 2020, the following change has been made: [1] Paragraph 36 should read as follows: [36] Accordingly, it is not necessary to embark on a s. 24(2) Charter analysis to determine whether, in the event I had found such an infringement, the evidentiary results of the search should be excluded as inadmissible. ____________________________ The Honourable Judge M. Shaw Provincial Court of British Columbia