R. v. Tung and Guzzi Date:, 2012 BCPC 289

Citation: R. v. Tung and Guzzi Date: 20120412 2012 BCPC 0289 File No: 179968-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HARPREET SINGH TUNG and AMBER PAULINE MARIE GUZZI RULING ON VOIR DIRE OF THE HONOURABLE JUDGE K. W. BALL Counsel for the Crown: E. Albrecher Counsel for the Defendants: R. Dhanu (for Tung); C. Sicotte (for Guzzi)

Place of Hearing: Surrey , B.C. Date of Hearing: August 31, 2011, March 26,2012 Date of Judgment: April 12, 2012 [ 1 ] THE COURT : These are reasons on a voir dire that was held a couple of weeks ago. I regret that we had to delay this long to provide you reasons.

I INTRODUCTION [ 2 ] The two accused, Harpreet Singh Tung and Amber Pauline Marie Guzzi, are charged under the Controlled Drugs and Substances Act with unlawfully producing cannabis marihuana and unlawfully possessing cannabis marihuana for the purpose of trafficking. [ 3 ] At the request of counsel, I declared a voir dire to consider the admissibility of evidence that defence counsel argued was obtained by way of a breach of the s. 8 rights of the accused under the Charter and that that evidence should therefore be excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms . [ 4 ] The defence further submitted that the search warrant that was obtained was based on incomplete information in the Information to Obtain and that the critical evidence in that document was also obtained through an illegal search, and that therefore the warrant should be quashed. [ 5 ] Crown counsel submitted that there was no initial breach of the Charter rights of the accused because police have the common- law duty to enter the accused's private residence without a warrant pursuant to the decision in R. v.

Godoy (1999), SCR 311, and that the ITO contained sufficient information to survive scrutiny. [ 6 ] The only witness on the voir dire was Cst. Roberts, who was one of the investigating officers for the abandoned 9-1-1 call on a cell phone which gave rise to this case. Cst. Roberts also prepared the Information to Obtain a Search Warrant and was present during the execution of the warrant after a marihuana grow operation had been found during the prior warrantless search. [ 7 ] In his evidence, Cst.

Roberts stated that on January 2nd, 2010, around 3:38 in the morning, RCMP Dispatch received an abandoned 9-1-1 call from a cellular telephone which had the number 604-719-8656. An abandoned call is a call where no information was conveyed before the call was disconnected. Cst. Roberts was informed by Dispatch to the approximate longitude and latitude from which the call originated, with an accuracy of approximately one square kilometre, based apparently on cellular telephone tower locations. He was also given an address to investigate, that being 14826 Fraser Highway. [ 8 ] Upon cross-examination, Cst.

Roberts stated that the particulars that he was given in association with the call were obtained because Ms. Guzzi's name, phone number and address were already in the Police Records Information Management Environment, PRIME, in relation to a previous abandoned 9-1-1 call. That call had occurred on October 7th, 2009, and the PRIME database showed that at that time, no emergency was associated with the prior call. From his evidence, it did not appear as though Cst. Roberts was aware of these facts before he entered the residence, because the information was determined by Dispatch.

However, based on the information that Cst. Roberts could see on the laptop contained in his police vehicle, he was aware that a previous 9-1-1 call had been made and that this cellular number was connected to Ms. Guzzi at this address from some time earlier. [ 9 ] Upon arriving at that address, Cst. Roberts waited a few minutes for the arrival of another member, Cst. Eric Wilson, who was also dispatched to the location. Together they approached the home. In his evidence, Cst. Roberts stated that the two officers listened at the home from the outside, which was silent. They then knocked on the door.

When no one answered, they looked around the sides of the house, but there was nothing creating any disturbance and nothing suspicious. [ 10 ] They returned to the front of the house to see a woman peering through a window, so they knocked again. The woman, later identified as Ms. Guzzi, answered the door. Ms. Guzzi appeared to be surprised to see the officers, was dressed in nightwear and was holding a young child in her arms, with a cell phone in one hand. In his evidence, Cst. Roberts stated that Ms. Guzzi was asked if she had called 9-1-1 and she replied that she had not. Cst.

Roberts then stated in his original evidence that Ms. Guzzi was asked if the above phone number, 604-719-8656, was her number and she replied yes, it was. However, in cross-examination by defence counsel, Cst. Roberts also stated that Ms. Guzzi was asked what her phone number was and she recited the above number from memory. Whether the officer offered the cell phone number or Ms. Guzzi recited it from memory is uncertain, but ultimately is of no particular significance. [ 11 ] Ms. Guzzi then showed Cst.

Roberts the phone in her hand and stated that this was the cellular phone that was attributed to the phone number and that she must have dialled 9-1-1 accidentally. Ms. Guzzi told Cst. Roberts that no police assistance was required by her. In his evidence, Cst. Roberts said that at this point Cst. Wilson and himself told Ms. Guzzi that they still needed to enter the residence, based on the common-law duty expressed in R. v. Godoy , to ensure the safety of everyone inside the residence. Ms.

Guzzi told the officer she did not want them to enter the residence and asserted that she knew her rights and that they would need a search warrant to search the premises. Before this point, the door had been open a comfortable distance to allow the parties to speak, and Cst. Roberts gave evidence that Ms. Guzzi attempted to physically block their way and that he had to hold the door open. There is no evidence that she attempted to close the door. [ 12 ] The officers entered the residence and Ms. Guzzi backed up to allow them in. Upon entering, Cst.

Roberts stated that he observed, to his immediate right, a living room with what appeared to be three East Indian males passed out on couches and the floor. Cst. Roberts observed the men were unconscious, but breathing, and did not appear to be in any distress. [ 13 ] Cst. Roberts continued through the house, while Cst. Wilson stayed with Ms. Guzzi at the front door. While Cst. Roberts

continued to clear the home, he detected an odour of fresh marihuana in the dining room, although on cross-examination, Cst. Roberts admitted to a faint smell of marihuana being present in the rest of the home. Cst. Roberts stated that the smell of marihuana was very strong at this point, but he did not think much of it at the time and continued to clear the house. [ 14 ] Cst. Roberts then cleared two bedrooms, one of which was empty, where Ms. Guzzi had been sleeping with her child, and the other bedroom contained two children and a male later identified as Mr. Tung. [ 15 ] Cst.

Roberts then continued through the kitchen and saw next to the laundry room that there was a curtain tacked up above the door. Cst. Roberts moved the curtain and opened the door to find several marihuana plants growing in this room. At this point, Cst. Roberts radioed that a possible grow operation had been located. Ms. Guzzi and the rest of the occupants of the home were then placed under arrest. [ 16 ] Upon returning to the police station, Cst. Roberts prepared the ITO and a judicial justice of the peace issued a search warrant.

He then returned to the residence at 10:21 a.m. and entered the residence to execute the warrant at 10:37. The search warrant and ITO were filed together as Exhibit A in these proceedings. II POSITIONS OF THE PARTIES [ 17 ] The Crown submits that Cst. Roberts and Cst. Wilson had a duty to enter the residence of Ms. Guzzi without her permission, based on a common-law duty as stated in R. v. Godoy. Indeed, Cst. Roberts stated as much to Ms. Guzzi when entering the home. [ 18 ] In Godoy , officers arrived at an apartment building in response to an abandoned 9-1-1 call, similar to that in the case at hand.

However, in Godoy, when the officers knocked on the door a male, the accused, answered the door, said everything was fine and began to close the door on the officers. This raised a suspicion in the officers, and one officer stuck his foot out to stop the door and forced entry into the home. As soon as the officers entered, they heard a woman crying and found the accused's common-law wife in a fetal position in one of the bedrooms, with a black eye. The woman stated that the accused had hit her, and based on those observations, the accused was arrested.

She had apparently been the 9-1-1 caller. [ 19 ] The Supreme Court of Canada stated, at paragraph 22, that: The importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 9-1-1 caller. The court goes on to emphasize that this duty is limited and that when investigating a 9-1-1 call, police authority extends only so far as to locate the 9-1-1 caller and determine the reasons for making the call. The court clearly states that: The police authority for being on private property in response to a 9-1-1 call ends there.

They do not have further permission to search premises or otherwise intrude on a resident's privacy or property. Furthermore, if the 9-1-1 caller can be identified without entering the home with force, then this course of action is the prudent one. [ 20 ] In Godoy , the court found that the forced entry was justified in the circumstances of that case.

The factors considered there were as follows: the nature of distress was unknown, they had a common-law duty to protect life and safety, acceptance of the accused's assertion of "no problem" was insufficient to satisfy this duty, the police had the power to enter the apartment to verify this statement, the accused closing the door increased the suspicion of the officers, once inside the apartment, the officers heard a woman crying and they had a duty to search for and find her. [ 21 ] The Crown further submits that where the courts have found that warrantless Godoy searches were justified in the circumstances of each case, even though they led to the discovery of grow operations, a 9-1-1 call led to a search of a residential home which resulted in the discovery of a grow operation, and subsequently a search warrant was obtained.

Those cases are R. v. Purchase

(2011) BCSC 153, and R. v. Patterson

(2008) BCPC 251. [ 22 ] Defence submits a number of cases where officers have searched private residences in response to 9-1-1 calls and the courts have found the searches infringe in individual's s. 8 rights under the Charter . Those cases are R. v. Brunskill (2010), BCSC 187; R. v. Mann (2003), BSCS 1725; R v. Kirkham (2004), BCSC 1150; R v. Vickers (2002), BCPC 389; R. v. Vaughan (2011), BCPC 20; and R. v. Marks (2005), ABPC 18.

In these cases, the evidence was excluded under the Charter . [ 23 ] Defence also submits two cases where the court found the officer committed a serious breach of his duties by not fully disclosing the information that he relied upon to obtain the search warrant, which prevented the justice from adequately assessing the reliability of the information. Those two cases are R. v. Ling (2009), BCCA 70, and R. v. Chiursky (phonetic) (2009), BCSC 1467.

III ANALYSIS OF THE GODOY SEARCH [ 24 ] The Crown submits that the warrantless search was justified under the leading case of Godoy, which provides officers with a common-law duty to enter private residences in order to carry out their duty to protect life. [ 25 ] At paragraph 7 the court, in Godoy , refers to the test laid out in R. v. Waterfield (1963) 3 All England Reports 659 , which sets out two criteria to be met when determining whether police conduct has interfered with an individual's rights.

Those are 1) the police were acting in the course of their duty when they effected the interference; 2) the conduct did not involve an unjustifiable use of powers in the circumstances. Godoy supports the conclusion that there is a police duty to protect life and safety and therefore to locate a 9-1-1 caller to assure their safety and wellbeing. However, the question then becomes whether the use of the power was unjustified in circumstances of the case.

The court goes on further to state, at paragraph 22: A reasonable interference in circumstances, such as an unknown trouble call, would be to locate the 9-1-1 caller in the home. If this can

be done without entering the home with force, obviously such a course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances. [ 26 ] While there are similarities in the circumstances between Godoy and the case at bar, there are also important distinguishing factors. In the case at bar, Ms. Guzzi was identified at the front door of the residence by the officers as the owner of the phone which made the 9-1-1 call, the phone number was hers and was attributed to the cell phone that she was carrying with her when she answered the door.

According to Godoy , the officer's duty to ascertain the safety and wellbeing of the 9-1-1 caller was complete and in this case, at that point in time, they had no further right to enter the residence. Ms. Guzzi needed no police assistance and she told the police that. [ 27 ] Furthermore, in Godoy , the accused gave a brief statement before closing the door on the officers, and upon forcing entry, the officers heard a woman crying immediately. However, in the case at hand, the officers circled the home and heard nothing suspicious.

They identified the caller at the home and she was willing to stand there and speak to the officers, provide them her cell phone, and she made no motion to close the door until they forced entry in spite of her spoken assertion of her s. 8 right. At that point, she simply backed away. Upon entering the home, the officers saw no signs of distress. The home sounded quiet.

There were no objective circumstances to support the continued search of the home beyond that of the abandoned 9-1-1 call. [ 28 ] In the cases of Purchase and Patterson noted above, the court found that the warrantless searches were justified in the circumstances of those cases. In Purchase , a third party had called 9-1-1 to report that her brother was being threatened by a man with a gun at a rental property, and she had been unsuccessful in reaching him on the telephone for the past 15 to 20 minutes. When the officers arrived at the rental property, a man exited the home with a gun.

These circumstances justified the detention of the man and search of the home to locate the caller's brother. In Purchase , the court states, at paragraph 103: The officers were authorized to conduct a Godoy search to satisfy that there was no potentially dangerous person nor injured person in the residence. [ 29 ] In Patterson , the officer was investigating an abandoned 9-1-1 call. There was nothing suspicious about the home, but when the accused answered the door, he stated he did not make the call, that no one else was home and the phone was not working. Obviously the phone was working.

The officer searched the first floor, and upon approaching the basement, was told not to go down. This increased his suspicion and he entered the basement to find a grow operation. In Patterson , the court found the grow operation was discovered in a lawful search for the 9-1-1 caller. [ 30 ] In both Purchase and Patterson , the search was conducted to locate the 9-1-1 caller or third party identified as having been threatened. These are important distinctions from the case at bar where Ms.

Guzzi was identified as the caller at the front door and had stated to the police that their assistance was not required and that no one was in distress. In his evidence, Cst. Roberts stated there were no circumstances to cast doubt on this fact. He further stated that outside of the abandoned 9-1-1 call, there was nothing else he observed to warrant an immediate entry into the home. [ 31 ] R. v. Godoy is not supportive of the proposition that following an abandoned 9-1-1 call, police have carte blanche authority to search premises where the call originated.

The police are authorized to search for the 9-1-1 caller to determine what that caller might require, if anything. Any other search is, according to Godoy , not justifiable. [ 32 ] I have also been assisted in reviewing a case which counsel did not submit, and I do not fault counsel, as it is a slightly different set of facts. It is the case of R. v. Larson , a decision of our Court of Appeal, cited at 2011 BCJ 2123 . In the Larson case, Mr. Larson was convicted at trial of charges involving a marihuana grow operation.

He was found by police, swimming in a lake, reciting, what seemed to all concerned, and he had had dealings with others prior to the police, that he was delusional and believed that there were people after him and people had been shooting at him and that someone had entered his home and they should not have done so. His language was described as being frantic and not making sense. The police actually stated that they believed he was in a state of drug- induced paranoia. He was originally apprehended under the Mental Health Act and transported to the Shuswap General Hospital to be examined by a physician.

During the drive to the hospital, he told one of the constables that two men had invaded his home, and again repeated the assertion that people were trying to harm him. He pointed to various people in the vicinity, alleging that they were from the same group of people who had gone to his home. He also said that people were shooting at him, and ducked as they passed other vehicles. He asked the constable to drive very quickly and not stop at stoplights.

He ducked down when they passed other vehicles and he said he was afraid to go back to his home. [ 33 ] Based on that information, and some time later, the two constables went to Mr. Larson's residence. They looked around the house and they looked through large windows into the house. They saw no signs of a crime having been committed. They checked the entrances to the home and there was no sign of forced entry. They found a sliding glass door that was not locked. They entered the house, announcing "police" several times; there was no answer.

They did not detect any unusual sounds or any signs of movement in the house. They then searched all three levels in the house, found there was no one in the dwelling, detected no evidence of forced entry, no bloodstains, no furniture or other articles appeared to be disturbed, there was no other sign of a struggle. When they entered the basement, they came upon a marihuana grow operation.

Based on their sight of that operation, they applied for a search warrant and re- entered the residence pursuant to the warrant to investigate the grow operation. [ 34 ] At trial, the judge found that the warrantless entry into Mr. Larson's home was lawful under the common-law police power to protect the public and individual safety. On appeal, the Court of Appeal found that there was absolutely no basis for the warrantless entry to have been lawful.

The court, at paragraphs 17 through 25, reviews the same paragraphs in Godoy that I have recited above, and cites thereafter a series of cases where warrantless entries have been found to be lawful. At paragraph 35 of the judgment, the court begins to consider the lawfulness of the warrantless search.

The Court of Appeal accepted that the police conduct fell within the general scope of duties relating to the report of a home invasion, but then said this: The trial judge in this case cited several justifications for entry into the residence at paragraph 40 of his judgment, "investigating the claim of a home invasion and whether or not it had occurred," "to determine if an assault had occurred," "to determine if anyone was in the house," and "to determine if there was any public safety concern and concerns related to the safety of Mr. Larson." The first two

justifications cited by the trial judge relate only to investigating completed crimes. While they might provide a basis for obtaining asearch warrant, they cannot justify a warrantless entry. The suggestion that the police had to enter the dwelling to determine if anyonewas in the house must be examined in the context of the evidence of the case.

While officers in the course of their testimony mentionedseveral times they were concerned that people might be in the house, the context of their statements make it clear the only people theywere referring to were those who participated in the purported home invasion. [35] The court concluded with the following at paragraph 44: It is difficult to understand how the search could have been based on such considerations. There does not appear to have been anyobjective basis for their belief that people might remain in the premises.

Some two hours had passed between the latest possible time forthe home invasion and the moment the police entered the house. The police did not detect any movement, noise or disturbance in thehome while they waited outside, when they peered in the windows and when they first entered the unlocked door. The possibility therewere people in the home was very remote. Those circumstances are very similar to the circumstances in the case at bar, notwithstanding there were people in the house, and theywere in no distress.

At paragraph 48: There is no suggestion that "exigent circumstances" connected with the preservation of evidence or the need to apprehend criminals werepresent, such that a warrantless entry under s. 529 of the Criminal Code might be justifiable. The police did not give evidence of whatrisk of safety they were worried about. It is perhaps conceivable that if the purported home invaders had really been "out to get" Mr.Larson, they might have remained in the house or might have set traps for him. Paragraph 49: Given the strong reasons to discount Mr.

Larson's account, however, and the lack of any urgency to enter the building, it is hard tocountenance such concerns as justifying entry into the building. It would have been a straightforward matter to interview Mr. Larsononce his paranoid symptoms had subsided and determine whether the allegation of a home invasion continued to be of concern. Equally,the police could have sought his consent to enter.

Neither of these courses of action was adopted. [36] I adopt, but will not read into the record, the contents of paragraphs 51 through 54, but 54 is a conclusion that there was no basisfor the trial judge holding that the warrantless search of the home was lawful. In the circumstances, the Court of Appeal concluded thatthe search warrant, based on the results of that search, could not be sustained, and that the evidence, after considering R. v. Grant(2009), 2009 SCC 32 , 2 SCR 353 and the three considerations set out therein, would not be admitted into evidence .

I amsatisfied that that reasoning applies in the case that is before me. [37] I will just say a few more words about the failure to disclose information in the Information to Obtain. Cst. Roberts has been amember of the Surrey RCMP for two years and was working as a general duty officer at the time the events occurred. Cst. Robertsprepared the ITO and while he had attended two previous marihuana grow operations, this was his first time preparing an ITO. Defencecounsel submitted that Cst.

Roberts failed to provide full disclosure of the facts in the ITO which were necessary for a justice todetermine whether or not the search warrant should be issued. At paragraph 4 of the ITO, Cst. Roberts wrote: At 0338 hours, the Surrey RCMP received a report of an abandoned 9-1-1 from a mobile home. The originating phone number was 604-719-8656.

Surrey Dispatch completed checks on the phone number, which revealed the number was associated with Amber Guzzi at14826 Fraser Highway in Surrey, British Columbia. [38] There was no mention in the information given by the officer of the actual location; that is, the longitude and latitude, of the calllocation and that that call location only had an accuracy of approximately one square kilometre. In other words, there was no way toattribute that cell phone call to a specific residence.

As a result, there was no mention that the abandoned call may not have originatedfrom the residence at 14285 Fraser Highway where Ms. Guzzi was ultimately located. [39] At paragraphs 9 and 10 of the ITO, Cst. Roberts wrote: The door was opened by a female in her 20s. The female was holding a young child who appeared to be about two years old. Cst.Wilson asked the female if there was any trouble and if she had called 9-1-1. The female stated that there was no problem and that shedidn’t call 9-1-1. Cst. Wilson asked, "Is your phone number 719-8656," to which the female replied, "Yes." Cst.

Wilson asked thefemale if her name was Amber, and the female confirmed that her name was Amber Guzzi. There was no mention that Ms. Guzzi statedthat she must have called 9-1-1 accidentally. There was no mention of the fact she was holding the cell phone in her hand and had toldthe officers that this was the cell phone associated with that number. At paragraph 13 of the ITO, Cst. Roberts wrote: Cst. Roberts cleared the bedroom where Guzzi was sleeping. Guzzi advised Cst. Roberts that her daughters were sleeping in thebedroom on the left. Cst. Roberts walked through the kitchen towards the room where Ms.

Guzzi had mentioned. As Cst. Robertswalked through the room, an odour of growing marihuana could be detected. There is no mention of marihuana being detected prior to walking through the kitchen, despite the fact that Cst. Roberts had previouslygiven evidence and written in his notes "smell of marihuana was faint and present in the rest of the home." [40] Crown counsel submitted that the court should rely here on the case of R. v. Wilson (2011), BCCA 252. In Wilson, the courtfound that the test to be applied to determine whether a search warrant was properly issued is set out in R. v. Garofoli (1992), SCR 142.

At paragraph 37, the court quotes Mr. Justice Donald's succinct

summary in that test in his decision in R. v. Bacon (2010), BCCA 135:

The trial judge's role in reviewing the validity of a search warrant is to consider whether the material filed in support of the warrant, as amplified on review, could support the issuance of the warrant. While evidence of fraud, material non-disclosure or misleading information are all relevant to the inquiry, their sole impact is to determine whether there is a continuing basis to support the warrant. [ 41 ] In the case at bar, the appropriate consideration is whether "a warrant could, not would, have been issued on the basis of the amplified record." (Paragraph 40 of Wilson ).

Wilson clarifies the case of Ling where a telewarrant was found to be improperly issued because "a very material fact was not mentioned in the ITO." This material fact was that the officer who wrote the ITO received information from a confidential informant that Mr. Ling was growing marihuana and had firearms in his residence. Wilson clearly states that this does not mean "failure to make full, fair and frank disclosure will, in and of itself, invalidate a warrant or give rise to a breach of the Charter ." In accordance with that statement, the court goes on to quote Mr.

Justice Proulx from the Court of Appeal of Quebec who said, in R. v. Beason (1994), 84 CCC (3d) 440: The true approach consists of determining what are the consequences of this non-disclosure with respect to the affidavit considered as a whole, and even with respect to the remaining part of it. In Wilson , the Court of Appeal found the trial judge erred in ruling that the search warrant was invalid solely by reason of material non- disclosure in the ITO. [ 42 ] While Wilson sets out the law for this issue well, the facts of Wilson case are materially different from the facts in the case at bar.

In Wilson , there was no initial warrantless search for the 9-1-1 call that led to the collection of information used in the ITO. Furthermore, there was independent evidence such as heat detection from anonymous or confidential sources to support the finding that a justice of the peace could still find that marihuana could reasonably be found in the premises. [ 43 ] A more similar fact pattern to the case at bar is found in the case of R. v. Vaughan 2011 BCPC 20 .

In Vaughan , there was a 9- 1-1 call to support suspicious activity that led the police to chase and then arrest six individuals and subsequently enter and search a private residence. The court quashed the search warrant obtained in Vaughan on the basis that the information in the ITO did not amount to full and frank disclosure, and because crucial evidence in the ITO, the odour of marihuana, was obtained through an illegal entry of a private residence.

The ITO was prepared by an officer who was not present at the scene and who did not participate in the events, nor had he previously prepared an ITO nor had any training to do so. Furthermore, the ITO did not contain all the information and some of the information contained in the ITO was inconsistent with the evidence of the officers. [ 44 ] At paragraph 82 of Vaughan , Judge Hicks set out the law as set out in R. v. Rowe

(2002) SCR 992 and repeated in R. v. Morelli

(2010) SCJ 8 in regards to amplification evidence. Such evidence is not a means for police to adduce additional information so as to retroactively authorize a search that was not originally supported on reasonable grounds. It should be used to correct some minor technical error in drafting on the affidavit material.

The focus must be on the information available to the police at the time of the application. [ 45 ] The court goes on to state that in order to be justified in entering the residence, the police must have an honestly-held suspicion that someone was at risk in the residence, which was objectively reasonable on the information known to the police at the time.

At paragraph 87, the court found that there was no objectively reasonable grounds in the case of Vaughan , and therefore: When analyzed in light of the evidence of witnesses, the ITO does not provide reliable information on the basis of which one could reach that conclusion. [ 46 ] Therefore, in finding the initial entry to the residence was unlawful, which was when the marihuana odour was detected, the evidence of the odour should be excluded from the ITO, which removed the basis for the issuance of the warrant. [ 47 ] Similarly, in the case at hand, the information in the ITO was obtained while in the process of a warrantless and unjustifiable search of the private residence of Mr.

Tung and Ms. Guzzi. The information in the Information to Obtain was inconsistent with that of the evidence that was provided by Cst. Roberts on the voir dire , specifically as to when he first detected the odour of marihuana. Furthermore, material facts were not disclosed to allow the justice to accurately conclude that there were objectively reasonable grounds for the officer to enter the property. [ 48 ] Therefore, I find that paragraphs 13, 15 and 16 should be excised from the ITO on the basis that the information was obtained through an illegal search of the private residence at 14825 Fraser Highway.

In doing so, I find there is no longer a factual basis for the search warrant to have been issued. The subsequent search of that property, relying on the warrant to obtain evidence of the grow operation was itself warrantless and a continued breach of Mr. Tung's and Ms. Guzzi's s. 8 rights. [ 49 ] In finding that s. 8 rights of Mr. Tung and Ms. Guzzi have been breached, I must consider whether the evidence obtained following the breach should be admitted under s. 24(2) of the Charter . This analysis requires a consideration of the test which I have set forth above in R. v.

Grant ; that is, the seriousness of the breach, the impact that the breach has on Charter -protected rights of the accused, and society's interest in having the case adjudicated on its merits. [ 50 ] These inquiries should encompass all the circumstances of the case and lead the judge to conclude, on balance, whether the admission of evidence would bring the administration of justice into disrepute. [ 51 ] A private residence has long been viewed by the courts and the public as having a special degree of sanctity and a warrantless intrusion without justification is always a serious Charter breach.

Furthermore, like in R. v. Vaughan , this intrusion was more than fleeting or technical. The breach resulted in the arrest of Mr. Tung and Ms. Guzzi and a continued intrusion on their homes through another search, relying on a flawed search warrant that was obtained through an incomplete Information to Obtain. [ 52 ] Lastly, while society's interest in adjudicating matters of marihuana grow operations is significant and has had particular significance in this community, there is also a parallel interest in ensuring that police intrusions into private homes are limited and that

evidence is obtained legally in accordance with Charter rights. Therefore, on balance, the evidence obtained following the s. 8 breach should be excluded, because the admittance of that evidence would bring the administration of justice into disrepute. [ 53 ] The result is the evidence of the grow operation both obtained initially by Cst. Roberts on his walk through the house, and the evidence obtained pursuant to the search warrant, will not be admitted into evidence. (RULING CONCLUDED)