R. v. Vaughan Date:, 2011 BCPC 20

Citation: R. v. Vaughan Date: 20110124 2011 BCPC 0020 File No: 172805 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARREN MITCHELL VAUGHAN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: Andrea Turton Counsel for the Defendant: Marvin N. Stern Place of Hearing: Surrey, B.C.

Dates of Hearing: November 29, December 1, 2010 Date of Judgment: January 24, 2011 [ 1 ] Darren Mitchell Vaughan is before this court for his trial on two charges set out in Information 172805: firstly that he did unlawfully produce a controlled substance being Cannabis (Marijuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act ; and secondly that he possessed that substance for the purpose of trafficking, contrary to Section 5(2) of the C.D.S.A. [ 2 ] The events occurred on December 17, 2008, in Delta, British Columbia. [ 3 ] At the outset of the trial, I declared a voir dire to address a defence challenge to the admissibility of evidence seized during the entry by police officers to the accussed’s residence at 8749 – 112 th Street in Delta.

Mr. Vaughan says the search and subsequent seizure of evidence was unreasonable under s.8 of the Charter and that to admit the evidence would bring the administration of justice into disrepute. [ 4 ] At issue in this case are entries without warrant by police, first to the upper level of the 2-storey residence, and then to the lower level during which a marijuana grow operation was located, and then a subsequent entry several hours later, pursuant to a warrant granted substantially on the basis of the two warrantless entries. Mr.

Vaughan was the tenant of both levels. [ 5 ] The defence says the Crown has failed to establish the warrantless entries were justified and so has failed to rebut the presumption that they were unreasonable. [ 6 ] The defence further argues the warrant was obtained based on an Information to Obtain (ITO) which did not provide full and frank disclosure, was inaccurate and was misleading. The defence says the warrant must be quashed. [ 7 ] The Crown says the initial entries were justified based on the police duty to preserve peace, prevent crime and protect life.

Those searches therefore, the Crown says, were reasonable. The Crown says the ITO is consistent with evidence given on the voir dire and is supportive of the warrant. [ 8 ] Two witnesses gave evidence on the voir dire . Cst. Clayton Ennis was the initial investigator at the scene. Cst. Sukjheet Sidhu was the informant who prepared the ITO relied on to support the application for the search warrant.

[ 9 ] In his evidence, Cst. Ennis said at 00:31 hours, December 17, 2008, he was dispatched to 11100 block of Patricia Drive. He was informed that a woman living in that cul-de-sac had observed two vehicles parked there. She saw five people walk from those vehicles and down a walkway. The caller said she had seen the same two vehicles in the area earlier in the evening and they were unrelated to the neighbourhood. Cst. Ennis described this as suspicious activity. [ 10 ] Cst. Ennis arrived at the cul-de-sac at 00:44 hours. He observed a Honda Civic and a F150 Ford pick-up. Cst.

Ennis checked the licence plate using computer databases available to him and learned the F150 was registered to Ryan Fitzpatrick who he said had an extensive record and a warrant outstanding from Ontario. The Honda Civic was registered to Joseph Quesnel. [ 11 ] Due to the time of night, the information he had respecting Ryan Fitzpatrick and suspicious behaviour observed by the caller, Cst. Ennis thought the five individuals might be about to do a break-in or a grow-rip. [ 12 ] He called for backup. Cst. Garnham and Cst. Gomes arrived. It was snowing heavily.

The officers followed prints which they saw in the snow down the pathway. [ 13 ] No map or aerial photos of the area have been provided. There is no information as to where the pathway begins or its direction other than that it goes towards Nordel Way, passing the back of the property at 8749 – 112 th Street. [ 14 ] There is no evidence that the caller was spoken to following police arrival. [ 15 ] There is no evidence confirming the caller was referring to this pathway or whether the tracks go from the vehicles to the pathway or where the vehicles were parked relative to the pathway. [ 16 ] Cst.

Ennis’ evidence is that the prints in the snow proceeded from the walkway to a point where it appeared the individuals jumped the fence into the backyard of 8749 – 112 th Street. [ 17 ] Cst. Garnham remained at the point where the prints indicated the subjects went over the fence. Csts. Ennis and Gomes proceeded further along the pathway. The evidence is unclear to me whether their route continued along the same path or whether they eventually turned down to one side of the property. In any event, as they proceeded along the perimeter of the property, Cst.

Ennis said he observed three males at a door to the lower level of the residence at 8749 – 112 th Street. It appears at the same time those three males saw the police and they fled. Cst. Ennis said the males went back the way they came. Ennis and Gomes went around the fence into the backyard and caught these three males at the rear fence. They were taken into custody at gun point for trespass by night and break-and- enter. [ 18 ] Cst. Ennis observed a set of tracks which fled North. He concluded a fourth suspect had left that way.

With this information, he concluded two suspects were not in custody. [ 19 ] No photographs of the residence building are in evidence. From Cst. Ennis’ evidence, it appears this is a two-storey building. Stairs lead up to a doorway on the second level. A layer of snow covered the stairway and footprints were visible to Cst. Ennis in the snow on the stairs. [ 20 ] In his direct evidence, Cst. Ennis said the footprints led to an insecure door. In cross-examination, he said insecure meant that the door was closed but unlocked. [ 21 ] Cst. Ennis was cross-examined about the prints he saw on the stairway.

He does not recall exactly what he saw but he says it was likely there were more than one set of tracks on the stairs. He was referred to the occurrence report he prepared. The timing of the preparation of that report is unclear. It seems that it is updated and added to over time. Having reviewed that report, Cst. Ennis then said there were tracks leading to and from the backdoor. He could not recall what the prints looked like. Those tracks were observed before he and Cst. Gomes and two other police officers went up the stairs to the door. [ 22 ] Cst.

Ennis observed vehicle tracks in the snow in the driveway of the residence. The exact location of the driveway was not described. He concluded that a vehicle left the driveway just prior to the arrival of Fitzpatrick and his party. The basis of that conclusion is uncertain. [ 23 ] Cst. Ennis stated that having observed footprints in the snow on the stairs and having the initial belief that the males were present to do a break-in or grow-rip, he and other members entered the upper floor of the residence via the insecure door to clear the residence.

He said this was done for their safety and to determine the safety of any occupants. He said he was concerned because two people of the original five were unaccounted for. He pointed out that on initial arrival at the scene he suspected a break-in or grow-rip. Once he saw three males at the rear lower door and they fled, he had no doubt of that. Because he did not know where the other two were, he felt it unsafe to go around the house checking windows to see if there were other occupants in the house. [ 24 ] Cst. Ennis stated that he or one of the other officers announced themselves.

They then entered the upper floor by the insecure door with firearms drawn. They moved cautiously, methodically, slowly and safely. He observed that someone appeared to live there. There was no internal stairway to the lower level. He did not observe any other door allowing entry to the upper level. He can’t say how long they were inside the upper level. No one was present. [ 25 ] While in the upper level, Cst. Ennis detected an odor leading him to conclude there was likely a marijuana grow operation in the lower portion of the residence.

He did not detect any noise coming from the lower level or anything else untoward. [ 26 ] The officers went outside and proceeded to the lower level door. The lower level door was locked and there was no evidence of damage. It appears on the evidence that some form of announcement of police presence was made but Cst. Ennis has no precise recollection of the manner or words used or by whom. The officers then entered the lower level through the locked door. No one was inside. The marijuana grow operation was found inside this lower level.

[ 27 ] Cst. Rothwell searched the two vehicles. She found walkie-talkies and an empty holster. Cst. Ennis cannot say when that search occurred or when he learned of it relative to the observation of the three males or entry to the residence. [ 28 ] A police dog attended but Cst. Ennis cannot describe what if any track the dog performed relative to the vehicles, the individuals arrested or the residence. [ 29 ] The males arrested were later released without charge. [ 30 ] Cst. Sukjheet Sidhu had been with the Delta Police Department four years at the time of these events. He was assigned to patrol duties.

He was on duty in the early hours of December 17, 2008. He was not present at the scene and so did not participate in any events there. He was assigned the responsibility of preparing the ITO for the search warrant because no other resources were available. The events which occurred at the scene were therefore provided to him at least second-hand. [ 31 ] Cst. Sidhu had never previously prepared an ITO. He had not received any training in this area. He had received some instructions on search and seizure law during his academy training in 2005 but none since.

He had seen marijuana grow operations but he had never been involved in the investigation of one. [ 32 ] In preparing this ITO, he received some assistance from Sgt. Hall. He also spoke to Constables Ennis and Rothwell. He reviewed an occurrence report prepared by Cst. Ennis. From these sources, he prepared the ITO which he says was proof read by Cst. Ennis and Sgt. Hall. [ 33 ] In cross-examination, Cst. Sidhu stated that some portions of the ITO were dictated by Cst. Ennis. He can’t recall if he asked any questions. [ 34 ] Exhibit A on the voir dire is the ITO sworn by Cst. Sidhu. In paragraphs 5 and 6, Cst.

Sidhu stated that the complainant called at 00:31 hours, described the vehicles parked in front of her home and said two people were in the Honda and three in the Ford pick-up. She then updated the police that there were now six white males walking towards the pathway by her residence which exits at Nordel Way. [ 35 ] Paragraphs 7, 8 and 9 relate the arrival of Cst. Ennis and his enquiries of the CPIC system respecting the two vehicle plate numbers.

Paragraph 9 includes information that Fitzpatrick, registered owner of the Ford pick-up, “had an extensive history for vehicle theft, theft, drugs and other Criminal Code offences. Cst. Ennis suspected the males were in the area to do a break-and-enter or a marijuana grow-rip.” [ 36 ] In cross-examination, Cst. Sidhu stated that Cst. Ennis provided all of the information contained in paragraphs 9 through 13. [ 37 ] Paragraphs 11, 12 and 13 are as follows: 11. Cst. Ennis waited the arrival of Constable Roy Garnham (“Cst. Garnham”) and Constable Felipe Gomes (“Cst. Gomes”).

Upon their arrival all three police officers followed the foot prints in the fresh snow to an area where the suspects had climbed over the fence to gain access to the rear yard of the residence. 12 Cst. Ennis observed several suspicious males in the backyard of the residence. The residence is a two floor above ground structure with separate living areas in the upper and lower floors. Cst. Ennis approached the six males and they fled on foot. Cst. Ennis initiated a foot pursuit and three males were taken into custody by Cst. Garnham who was at the west end of the residence.

Three other males fled on foot in different directions. Canine services attended the area but were unable to locate the suspects. 13. Cst. Ennis located foot prints in the fresh snow on the rear stairs of the residence that lead to an insecure door. Cst. Ennis observed that there was no forced entry and the door was insecure. Cst. Ennis and other members of the Delta police went into the upstairs portion of the residence to see if anyone was home or if there were any victims of a crime. While inside the upstairs portion of the residence, Cst. Ennis and Sergeant Ryan Hall (“Sgt.

Hall”) noted the odour of freshly grown, vegetated marijuana. There were no marijuana plants in the upstairs portion of the residence and no one was home. The upstairs portion of the residence was separate from the main floor with the only access being from the upstairs porch door. The residence had been modified preventing access between the upper and lower floors through the inside of the residence. [ 38 ] Several issues arise in respect of these paragraphs. [ 39 ] Paragraph 12 refers initially to the presence of “several suspicious males in the backyard of the residence”. There is then reference to Cst.

Ennis approaching six males who then fled. Three were apprehended and three fled in different directions and were not located. [ 40 ] The observation of six males in the yard is consistent with the earlier paragraphs of the ITO in which the caller described seeing six white males on the pathway. [ 41 ] It is significantly at odds with Cst. Ennis’ evidence in which he said he believed there were five males involved. Further, his evidence is that he saw only three males in the backyard who were positioned at the lower rear door.

The ITO does not suggest three males were at the lower rear door or at any other particular position relative to the residence. They were simply “in the backyard of the residence”. [ 42 ] Further, Cst. Ennis’ evidence is that he concluded from tracks present that a 4 th male fled and the 5 th male was unaccounted for.

[ 43 ] The evidence before the Judicial Justice of the Peace was that six males were observed in the backyard, three were apprehended and three fled in different directions. The only reasonable conclusion based on the ITO is that all six males were accounted for. [ 44 ] I note here that this is a paragraph which Cst. Sidhu said he drafted based on information provided by Cst. Ennis and proof read by him. In his evidence, Cst. Sidhu said that he was told by Cst. Ennis about six males. In his evidence, Cst.

Ennis stated that he did not see six intruders, he saw only three. [ 45 ] In the circumstances, I conclude it is impossible to say which version, the one given by Cst. Ennis in evidence or the one Cst. Sidhu says was given to him by Cst. Ennis and set out in paragraph 12, is accurate. [ 46 ] Notwithstanding this uncertainty, the version considered by the Judicial Justice of Peace in granting the warrant described six suspicious males present outside the residence when police attended. [ 47 ] Paragraph 13 opens with the following: “Cst.

Ennis located foot prints in the fresh snow on the rear stairs of the residence that lead to an insecure door.” [ 48 ] No further description of these footprints is provided in the ITO. The clear implication or

interpretation of this sentence is that the footprints lead up to the insecure door. A reader is left to speculate as to whether the maker of those prints had gone through the insecure door and was perhaps still in the residence. [ 49 ] That is the evidence that was before the Judicial Justice of the Peace. [ 50 ] Cst. Ennis’ evidence on the voir dire however is that there was likely more than one set of prints on the stairs and that those prints went in both directions.

He agreed he had to have made the observations before any members went up the stairs to check the door and ultimately entered the residence because otherwise they would be obscure. Thus on this evidence, members entering via the insecure door must have been aware that at least one set of prints went down the stairs, a circumstance which might argue against an intruder’s continuing presence inside. [ 51 ] Further in his evidence, Cst.

Ennis expressed the conclusion based on tracks in the snow that an occupant had left the residence just prior to the arrival of the suspicious males and driven a vehicle out of the driveway. This too might argue against the continuing presence of a person in the premises. This observation is not described anywhere in the ITO. [ 52 ] In his evidence, Cst. Sidhu said he did not know that any police officer believed occupants left the residence nor did he know that tracks led down the stairs.

He understood tracks led up the stairs only. [ 53 ] Thus there is a failure to provide full information in the ITO for the benefit of the issuing Justice respecting the footprints on the stairs. The single reference quoted above from paragraph 13 is misleading on a point of significance relative to the police decision to enter the premises without a warrant. [ 54 ] Further, the ITO refers to the door as insecure. In his evidence Cst. Ennis said this meant to him that the door was closed but unlocked. Cst. Sidhu said he believed this meant the door was open. Cst.

Sidhu said he would be surprised to learn the door was in fact closed and unlocked. No further description of the state of the door, other than that it was undamaged, is provided in the ITO. Cst. Sidhu did not ask any questions to clarify what Cst. Ennis meant when he said the door was insecure. [ 55 ] In my view, the word “insecure” could cover either of the

interpretations provided by Cst. Ennis and Cst. Sidhu. How the Judicial Justice of the Peace interpreted that word is unknown. Where precision is important, words which might anticipate several

interpretations should not be used or a more complete description provided. The situation must be sufficiently described to allow the reviewing Justice to fully appreciate the circumstances assessed by the police. That was not done in this case by using the single word “insecure” to describe the state of this door. [ 56 ] Paragraph 13 of the ITO then states: “Cst. Ennis and other members of the Delta police went into the upstairs portion of the residence to see if anyone was home or if there were any victims of a crime.” [ 57 ] In his direct evidence, Cst.

Ennis said police members entered because they were concerned for the safety of any occupants. He referred to his belief this was a home invasion or grow-rip and that two suspects were not accounted for. His evidence in this respect is at odds with the evidence set out in the ITO that all suspects were accounted for, either in custody or having been seen to flee. Again, the failure to disclose fully the details of the footprints, and the state of the door, and the absence of any disclosure respecting Cst.

Ennis’ belief that an occupant or occupants had recently left the premises by vehicle, detract from the ability of a reviewing Justice to fully assess the circumstances facing police and their decision to enter the premises. [ 58 ] I repeat here that Cst. Sidhu stated the information set out in paragraph 13 was provided by Cst. Ennis and proof read by him. [ 59 ] In paragraph 14, Cst. Sidhu set out the results of a search by Cst. Rothwell carried out on each of the two suspicious vehicles found in the cul-de-sac.

Mace, an empty holster and two Cobra two-way radios were found in the Honda and one two-way radio was found in the Ford truck. Cst. Rothwell informed Sgt. Hall of this. [ 60 ] No information is provided in paragraph 14 as to the timing of these searches or whether the officers had the information in hand at the time they assessed the circumstances and decided to enter either the upper or lower level of the residence. Cst.

Ennis is unable to say when that information reached him and he does not rely on it in his evidence as one of the considerations he took account of in deciding to enter. [ 61 ] It is reasonable to conclude that at the time the ITO was drafted, this could have been determined and clarification provided in the ITO in order to ensure that it is clear on the face of the ITO how this information should be viewed by the issuing Justice relative to the decision to enter the premises.

[62] Paragraph 18 states that Sgt. Hall and Cst. Gomes forced entry into the lower level of the residence “to ensure no one was thevictim of a crime and located a marijuana growing operation which they suspected existed from the odour of marijuana upstairs.” [63] All the evidence in the ITO and on amplification establishes that the lower residence door was locked. There was no means ofaccess to the lower floor from the upper level.

Other than the odour of marijuana detected while police were inside the upper level, therewere no sounds or any other untoward observations made respecting what might be inside the lower level. [64] I repeat here there is no evidence provided in the ITO suggesting that any of the males observed in the backyard were at thelower level door as Cst.

Ennis described in his evidence. [65] On the basis of the ITO, a Judicial Justice of the Peace issued a search warrant for the premises at 8749 – 112th Street, Delta,B.C. [66] In submissions, Crown Counsel acknowledged that the entries to the upper and lower levels were searches carried out withoutwarrant and that the right to be secure against unreasonable search protected by s.8 of the Charter was engaged. (R. v.

Jamieson, 2002BCCA 411, para. 27 and 28.) [67] The Crown argues these entries were justified on the basis of the common law and statutory duty under the Police Act placed onthe police officers to preserve peace, prevent crime and protect life. [68] In R. v. Dedman, (SCC), [1985] 2 SCR 2 at pages 11 and 12, the Supreme Court of Canada stated that thecommon law duties now codified in the Police Act include “preservation of the peace, the prevention of crime and the protection of lifeand property”.

The Court confirmed that the duty to protect life was a general duty which is not limited to protecting the lives of victimsof crime. [69] In R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, at paragraphs 11 and 12, the Supreme Court of Canada stated thefollowing: 11. In my view, public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether theymay enter dwelling houses in the course of such an investigation depends on the circumstances of each case. 12.

The accepted test for evaluating the common law powers and duties of the police was set out in Waterfield, supra (followed bythis Court in R. v. Stenning, (SCC), [1970] S.C.R. 631, Knowlton v. The Queen, (SCC), [1974] S.C.R.443, and Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2).

If police conduct constitutes a prima facie interference witha person’s liberty or property, the court must consider two questions: first, does the conduct fall within the general scope of any dutyimposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involvedan unjustifiable use of powers associated with the duty. [70] The Court went on to adopt the following meaning for justifiable use of police power taken from the Ontario Court of Appealdecision in R. v.

Simpson (1993), (ON CA), 79 C.C.C. (3d) 482: …The justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which someinterference with liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good,the liberty interfered with and the nature and extent of the interference. [71] In conducting this review, I have in mind that I must not substitute my opinion as to the sufficiency of the grounds for issuing thewarrant for the opinion of the issuing Justice.

The scope of this enquiry is to determine whether there was any basis on credible evidenceupon which the issuing Justice could be satisfied the required statutory conditions were met. (R. v. Morelli, 2010 SCC 8 , 2010S.C.C. 8 at para. 175, 176.) [72] In the present case, the ITO at paragraph 13 states that the officers entered the upper level of the residence “to see if anyone washome or if there were any victims of a crime”. [73] Entry for the purpose of seeing if anyone was at home is not in itself a basis that would justify a warrantless entry by the policeto a private residence.

By virtue of the use of the word “or” that reason appears to be offered as a justification for entry separate andapart from the words that follow which relate to determining if any victims of crime are present. [74] I might speculate that the phrase was intended to be read conjunctively with concern for the presence of victims of crime, but thatis not how it is phrased and it is not otherwise clarified on amplification. [75] The analysis then focuses on the balance of the sentence reflecting concerns for the possible presence of victims of crime in theresidence. [76] There is no dispute that addressing concerns for the safety of the individuals who might be the victims of crime falls within thegeneral scope of police duties recognized by law.

The duty to protect life recognized in R. v. Dedman (supra) includes suchcircumstance. [77] Police members are also justified in taking reasonable steps to protect their own safety which may, depending on thecircumstances, include entry to premises. (R. v. Chuhaniuk, [2010] BCCA 403, para. 59.) However, that justification is not referred toin the ITO. It is alluded to in the evidence of Cst. Ennis. In these circumstances, even were I to assume it can be considered as ajustification for entry, it falls to be resolved on the same considerations as does entry to protect victims of crime.

[ 78 ] The evidence set out in the ITO accounts for all six alleged suspects. On this basis, there is no one from the suspect group who could reasonably be assumed to be inside the residence and therefore a risk to any one inside. Further, all six are initially observed in the backyard, not in the residence. There is no evidence as to the passage of time from initial sighting by the caller until police observation. There is no evidence provided beyond speculation that any of the suspects actually went upstairs to the upper level rear door.

The ITO is unclear in using the word “insecure” as to whether that door was ajar or closed but unlocked. Although there is some evidence about this from Cst. Ennis, it does not clarify the issue for the benefit of the issuing Justice and its confusing nature is highlighted by the different

interpretation placed on that word by Cst. Ennis and Cst. Sidhu. [ 79 ] Although it appears police attended following a call of suspicious activity, this is not similar to a 911 call made by a person from within the subject property who might be at risk as was the case, for example, in R. v. Godoy , supra . [ 80 ] Indeed, on amplification, it appears Cst.

Ennis concluded that the prints went up and down from the insecure door, and based on vehicle tracks in the driveway, he had concluded that an occupant had earlier left the residence. [ 81 ] There is no evidence of lights on in the premises or sounds from inside nor any answer to the police announcement suggesting someone in distress. There is no evidence of a call from those premises to police. [ 82 ] In assessing evidence provided on this voir dire , I must bear in mind the limited scope to be given amplification evidence. As stated in R. v. Araujo and repeated by the Supreme Court of Canada in R. v.

Morelli (supra), such evidence “is not a means for the police to adduce additional information so as to retroactively authorize a search that was not originally supported on reasonable and probable grounds.” It should be used to correct “some minor, technical error in the drafting of the affidavit material”.

The focus must be on the information “available to the police at the time of the application” (para. 42). [ 83 ] So for the purposes of determining whether the entry to the upper level by police was justified on reasonable grounds to protect life, I must assess the circumstances as they were presented to the Justice, that six males were believed to be involved and that all six were seen in the backyard and that all were either arrested or fled. [ 84 ] The evidence at trial assists me in concluding that the information provided in the ITO respecting the footprints on the stairs and the state of the door does not amount to full and frank disclosure and is misleading. [ 85 ] The failure to set out the belief that an occupant left the premises and drove away before the suspects arrived and the basis for that amounts to material non-disclosure. [ 86 ] In order for entry to be justified, there must be present an honestly held suspicion that someone in the residence is at risk and that suspicion must be objectively reasonable on the information known to the police at the time. ( R. v.

Brunskill , 2010 BCSC 187 , Truscott, J., para. 38.) [ 87 ] It is not enough that Cst. Ennis simply wished to be safe rather than sorry. There must be objectively reasonable grounds present to suspect someone inside was at risk. When analysed in light of the evidence of the witnesses, the ITO does not provide reliable information on the basis of which one could reach that conclusion. The past record of Mr. Fitzpatrick, their presence in the backyard, the time of day and Cst.

Ennis’ suspicion of their purpose, is not sufficient to provide objectively reasonable grounds to enter the premises without a warrant. [ 88 ] Thus the entry to the upper level was not lawful. [ 89 ] It was during that entry that the odour of marijuana was detected. [ 90 ] Entry to the lower level was gained by forcing the locked door. There was no access from the upper level. The lower level door was undamaged. There is no evidence presented to the issuing Justice in the ITO that any of the suspects were seen at or near this door. Cst.

Ennis’ evidence that he saw three males at the door on initial arrival, in these circumstances, exceeds the bounds of proper amplification evidence. It is substantive evidence tending to bolster the narrative and contributing to an ex post facto justification of the entry. There were no noises or sounds of distress from inside.

There was simply no objective evidence supporting a reasonable suspicion that someone might be at risk inside the lower level. [ 91 ] On this basis, the forced entry to the lower level of the residence was not justified. [ 92 ] The odour of marijuana was detected during the initial illegal entry of the upper level. The grow operation was discovered following the illegal forced entry of the lower level.

This is the crucial evidence set out in the ITO on the basis of which the Judicial Justice of the Peace would find the grounds to issue the search warrant. [ 93 ] When this evidence is excluded, no basis remains for the issuance of the search warrant. ( R. v. Collings, 2010 BCSC 1658 at para 147 .) [ 94 ] The subsequent search by police and seizure of evidence was without warrant and unreasonable.

The s.8 Charter right of the accused to be secure against unreasonable search and seizure was breached. [ 95 ] When determining whether evidence obtained following a breach of a Charter right should be admitted under s.24(2) of the Charter, the Court must “assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to: 1. The seriousness of the Charter infringing state conduct (admission may send the message that the justice system condones serious state misconduct); 2.

The impact of the breach on the Charter protected interests of the accused (admission may send the message that individual’s

rights count for little); and 3. Society’s interest in the adjudication of the case on its merits.” ( R. v. Reddy, 10 BCCA 11 ; R. v. Chuhaniauk, 2010 BCCA 403 .) [ 96 ] At issue in this case are two warrantless entries into a private residence which I have found were not justified at law. Entry by state authorities into a person’s private home is a serious intrusion into a space which the Courts have long identified as entitled to special protection. A proper analysis of the information readily available at the scene in this case fails to support the presence of any exigent circumstance.

Although honestly motivated, these entries demonstrate a failure by officers present to conduct a reasonable assessment of that readily available information with the Charter right of the accused in mind. [ 97 ] There were, in addition, significant omissions and misleading entries in the ITO, and, on amplification, confusion as to the actual observations made by members on arrival.

Either the evidence at trial as to the number of individuals involved and their whereabouts is inaccurate or, if accurate, there was a complete absence of care in ensuring the ITO submitted accurately described those circumstances. [ 98 ] The forced entry to the second level was entirely unjustified based on information available. [ 99 ] In respect of the second factor, this was not a fleeting or technical breach of the accused’s right, nor was the impact fleeting. The initial entries were highly intrusive, one requiring forced entry.

The 3 rd entry was then carried out pursuant to a warrant issued on misleading and uncertain information in material respects. [ 100 ] The evidence itself is central to the Crown’s case. There is a significant interest in seeing cases like this prosecuted on their merits. The community has a significant interest in addressing the negative effects of illegal marijuana grow operations and the criminal conduct they generate. Significant deterrent sentences often follow conviction on these charges.

The community also has an interest in ensuring that the crucial evidence in these cases is obtained lawfully and that significant violations of basic Charter rights involving intrusion into a private residence were not simply disregarded in the pursuit of a conviction. [ 101 ] In this case, on balance, I conclude that to admit the evidence generated by these warrantless entries would bring the administration of justice into disrepute. [ 102 ] The evidence will be excluded. _________________________________ The Honourable Judge M. B. Hicks Provincial Court of British Columbia