R. v. Croft and Croft Date:, 2013 BCPC 260

Citation: R. v. Croft and Croft Date: 20130306 2013 BCPC 0260 File No: 184000-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANE STEVEN CROFT and SCOTT GORDON CROFT RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: N. Gulamhussein Counsel for the Defendants: O. Snowdon (for Dane Croft) J.W. Conroy, Q.C. (for Scott Croft)

Place of Hearing: Surrey , B.C. Date of Hearing: March 5, 2013 Date of Judgment: March 6, 2013 [ 1 ] THE COURT : This is an application by the accused, pursuant to the Charter of Rights , to exclude evidence that was discovered during the execution of a search warrant at their residence. The primary argument advanced by the defence is that the employees of BC Hydro were acting as agents for the police in this investigation.

Even if I accept that, I have some other concerns or there are other factors that should not be overlooked. [ 2 ] The Information to Obtain discloses the history of the Hydro bill, if I can put it that way. The Hydro security conducted a service check at the residence on July the 7th and the load was higher than would be expected for a residence of that size. Now, clearly they had been tipped off about this by the police, but the electrical meter assigned to the property by BC Hydro was not in the meter base.

In its place was an electrical meter that bore no identifiable numbers, which is presumed to be a stolen electrical meter. They attended again on July the 20th, two BC Hydro security investigators, and measured the consumption and once again the hydro meter was not in the meter base and an unidentifiable, untraceable electrical meter was in use.

This obviously had the effect of cheating BC Hydro out of what they should have been paid. [ 3 ] Once again, on July 27th in the afternoon, two Hydro investigators conducted another service check and measured the consumption, which was higher than would normally be expected for a residence and on this occasion the meter base was in use. They have advanced an explanation for that, saying that meter replacement or switching is a common method of committing a theft of electricity because the electrical consumption is recorded on an electrical meter that would normally be seen or read by a meter reader.

In this case, the electrical meter was scheduled to be read by a Hydro meter reader on the following day and the customers are informed of when their meter is to be read.

In the Information to Obtain, it is stated that the customer, aware of the meter read date, simply replaces the stolen meter with the assigned meter until after the meter has been read and then replaces the assigned meter with the stolen meter once again, ensuring that electrical consumption for billing purposes is an absolute minimum, saving the customers large amounts of money. [ 4 ] The Hydro investigator goes on to say that in 99.9 percent of the cases, this is consistent with a marihuana grow operation. I attach no weight to that.

There is no evidentiary foundation or statistical foundation for that conclusion. But that aside, I am being asked to exclude evidence where, in my view, Hydro had every right to be on the property and the customer is informed of that. If I am wrong in that, it is the exterior of the residence that they are checking and the police officer candidly admitted in cross-examination that he did not have a foundation to seek a warrant for a marihuana grow operation, but I had found that there was an evidentiary foundation to support the belief that there was theft of electricity going on in that home.

If I am wrong in that I rely on s. 24(2), that it would be contrary to the public interest to exclude the evidence, to simply allow people to rip off Hydro in these types of circumstances. [ 5 ] I am not going to rule at this point that the evidence is admissible because I understand there are other Charter issues to be raised, but I am not agreeing with the defence submission that there has been a Charter breach here and that the evidence should be excluded at this point. Thank you. (RULING CONCLUDED)