R. v. Pontes Date:, 2014 BCPC 19

Citation: R. v. Pontes Date: 20140206 2014 BCPC 0019 File No: 191766-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARLENE PONTES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: Stephen Price Counsel for the Defendant: Matthew Nathanson Place of Hearing: Surrey , B.C. Dates of Hearing: December 13, 19, 20, 2013 Date of Judgment: February 6, 2014

[ 1 ] After the police executed a search warrant at her residence, the accused was charged with production of marijuana; possession of marijuana for the purpose of trafficking, and theft of electricity. She now seeks exclusion of the evidence discovered in the search. She argues that the Information to Obtain Search Warrant (ITO) failed to disclose reasonable grounds to believe that an offence had been committed. She submits that the search was therefore unreasonable. [ 2 ] The accused did not seek to cross-examine the affiant. Instead, her argument focuses solely on the wording of the ITO.

That is, it is a "facial" as opposed to a "sub facial" challenge to the validity of the warrant. [ 3 ] The argument is that the ITO relied completely upon hearsay evidence – a report from someone at BC Hydro.

The accused says that the ITO failed to disclose information which could permit the authorizing justice to independently evaluate the basis for the informant’s belief that electricity was being stolen at her residence. [ 4 ] The defence points to the following alleged deficiencies in the ITO: 1) failure to disclose who was the author of the document faxed by BC Hydro or any information from which that fact could be inferred; 2) failure to disclose whether the informant had even read the document received from BC Hydro; 3) failure to adequately describe the qualifications of the Hydro employees who conducted a test at the accused’s residence and who detected that electricity was being stolen. [ 5 ] The Crown replies that while the ITO could have been better drafted, a common sense approach to reviewing the ITO discloses that there was enough evidence upon which the authorizing justice could have issued the warrant.

Relevant Legal Principles [ 6 ] Section 487 (1) (

a) of the Criminal Code provides that a justice may issue a warrant to search a place if the justice is " satisfied on information under oath that there are reasonable grounds to believe that there is in that place anything on or in respect of which an offence against the Criminal Code or any other act of Parliament has been or is suspected to have been committed ." Emphasis added. [ 7 ]

Section 8 that the Canadian Charter of Rights and Freedoms provides that "everyone has the right to be secure against unreasonable search or seizure." Section 24 (2) of the Charter of Rights and Freedoms states: “where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” [ 8 ] A trial judge who reviews a search warrant must not substitute his or her own opinion for that of the issuing justice.

The test to be applied was set out by the Supreme Court of Canada in R. v. Garofoli (1990), 60 C.C.C. (3d) 181 at page 188: The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, he or she should not interfere. [ 9 ] The scope of a hearing which challenges the facial validity of a warrant is narrow. As Watt, J.A., stated in R. v.

Sadikov : A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant. The record examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record. R. v. Sadikov , 2014 ONCA 72 at paragraph 37 . [ 10 ] The reviewing judge must examine the ITO as a whole and must not analyze it on a “piece by piece” basis. The police officer who drafts an ITO must not be held to the same standard as one might require, for example, of a lawyer drafting a statute.

After all, a search warrant is an investigative tool often being the first step in an investigation. As Frankel, J.A., stated in R. v.

Whitaker 2008 BCCA 174 at paragraph 42 : "Further, the assessment of the facts relied upon to establish reasonable grounds is made on a practical non- technical and common sense basis." [ 11 ] The standard which an informant must meet in seeking a warrant is one of “credibly based probability.” That is, the standard is much lower than proof beyond a reasonable doubt in a criminal trial or even the standard required for a judge to commit a person for trial after a preliminary inquiry.

But, an informant is required to make “full frank and fair” disclosure of the evidence used to seek the warrant. [ 12 ] Hearsay evidence may be used in an information to obtain to establish reasonable grounds. The essential question in assessing hearsay evidence is its reliability. Important questions are, for example: Who was the source of the hearsay evidence? Was that evidence within the personal knowledge of the person relied upon by the informant or was that person in turn passing on something he or she had learned from a third person? What is the reliability of the source or sources of the information?

How specific is the hearsay

evidence? Did the informant quote directly from the source of the evidence or did the informant instead summarize what the source told the informant? Circumstances [ 13 ] The ITO sets out the background to this investigation. The informant was Constable Lamoreux of the Langley RCMP. The officer had received an anonymous tip that there was a marijuana grow operation at the accused’s residence. He was, however, unable to corroborate the tip. He stopped any active investigation but did pass on to someone at BC Hydro his suspicion that there may have been an ongoing theft of electricity at the accused's residence.

On February 1, 2011, Constable Lamoreux received information from BC Hydro that an ongoing theft had been discovered there. [ 14 ] On February 5, 2011, Constable Lamoreux obtained a search warrant based upon that information from BC Hydro. The search was conducted on the same day. The officers who searched the premises discovered that it contained a large marijuana grow operation including hundreds of marijuana plants in various stages of growth as well as the usual equipment which accompanies such enterprises. They also discovered an electrical bypass. There was no one at the house when the search was done.

Information to Obtain Search Warrant [ 15 ] In the ITO, Constable Lamoreux depended completely upon the document received from BC Hydro to establish reasonable grounds to believe that the offence of theft of electricity had occurred at the residence in question. All of that evidence is set out in paragraph 10 of the ITO. None of the other paragraphs contain any evidence to support the issuance of the warrant.

Paragraph 10 [ 16 ] The informant states at the beginning of paragraph 10 the following: "On February 1, 2011, Jim Silver, an employee of Accenture Business Services, (Security Services for British Columbia Hydro), sent a fax to the Langley RCMP Drug

Section that advised of the following:" [ 17 ] The ITO does not disclose what Mr. Silver’s position is at Accenture nor does it describe the actual document other than saying it was a fax. Most importantly, the informant does not state who wrote this document received from BC Hydro. [ 18 ] The rest of paragraph 10 contains seven subparagraphs lettered a to g. It states that two employees of BC Hydro – Chuck Leek and Art Giesbrecht – had performed a service check at the accused’s residence.

They measured the amount of electricity actually going into the house and compared it to the amount being recorded on the house’s electrical meter. They discovered that more electricity was entering the house than was being recorded. The service check showed that at the time 7794 watts of electricity were being stolen. [ 19 ] The informant describes the qualifications of the two BC Hydro employees in almost exactly the same wording (except for stating that Giesbrecht had worked for BC Hydro since July 11, 2007 and Mr. Leek had worked for BC Hydro since January 2011 – one month before the search).

The informant states the following about both men's qualifications: "He has been trained in the detection of electrical theft. He has reviewed numerous records and field-tested numerous electrical services. He has found electrical thefts and reported them to police." [ 20 ] The last paragraph – g – merely states that the current Hydro subscriber for the house was the accused. Analysis [ 21 ] The fundamental problem with this ITO is that nowhere does it disclose who wrote the document that was faxed to the Langley RCMP. Various questions arise from the failure to name the author of the report.

Was it written by one of the men who did the service check? Or, did one of the men who performed the service check telephone someone at BC Hydro who then filled in a document and faxed it. Or did the person who got the information from the men who did the service check pass that information on to someone else who did the report? What knowledge did the person who wrote the report have about the actual service check and about the procedures used by BC Hydro to detect theft of electricity?

One can only speculate. [ 22 ] Second, the ITO purports to describe the qualifications of the two men who did the service check, but succeeds only in obscuring the issue. It describes their qualifications in essentially the same “boilerplate" language. It suggests that they both have extensive experience, yet Mr. Leek had only been working at the job for one month before the test was done. He obviously did not have the same level of experience as Mr. Giesbrecht. [ 23 ] The ITO does not actually state that either or both of these men had done service checks before.

That in itself may not be particularly significant. However, paragraph 10 refers to both of them as having: "…field-tested numerous electrical services." [ 24 ] What does the verb” field-test” mean? The Webster's New World College dictionary (fourth edition) defines "field test" as follows: “ to test a device method etc. under actual operating conditions. ” This is not synonymous with someone doing a routine service check of the supply of electricity into a particular premise.

I have no idea what the relevance of doing a "field-test" is to this investigation. [ 25 ] Third, the informant does not state in the ITO whether he is quoting directly from the document received from BC Hydro or whether he has even read it. The ITO says that the fax "advised" the facts referred to in the ITO. For example the ITO contains a detailed description of what is involved in a service check. What is the source of that definition? It is not at all clear. [ 26 ] Was the officer quoting directly from the faxed document or was the officer providing an explanation for a term used in the document.

Was he relying on his own personal knowledge? In any event, because the ITO does not state who wrote the document, the authorizing justice would have no way of determining how reliable or accurate that particular description of a service check was.

[ 27 ] Thus, the informant’s failure either to attach a copy of the faxed document or to explain whether he was quoting directly from it or whether he had read it, left the authorizing justice with little or no information about how accurate paragraph 10 was. Was the officer quoting directly from document? Was he summarizing what he had read? Was he providing a

summary given to him by someone else? Was he providing a

summary of someone else's

summary? Once again, one can only speculate. [ 28 ] One might ask: is it not improbable that BC Hydro would send out unqualified people to detect a possible theft of electricity? Is it not improbable that a qualified and responsible police officer would not read and carefully describe the contents of any document received from BC Hydro? Is it not improbable that BC Hydro could not communicate accurately the results of such a simple investigation? [ 29 ] There is little doubt that BC Hydro knows how to detect electricity theft.

Most police officers are well-trained professionals who investigate cases carefully and responsibly. The point is, however, that a police officer who applies for a search warrant must communicate the basis for his or her belief that there are reasonable grounds to believe that a crime has been committed. [ 30 ] The officer must disclose to the authorizing justice the evidence upon which that belief is based and disclose why he or she believes that the evidence is credible and trustworthy. This permits the justice to independently assess the basis of the officer’s belief.

Where the officer as an informant does not provide evidence which permits the authorizing justice to independently assess the evidence, it is hardly different from an officer merely asserting his or her belief. [ 31 ] I conclude therefore that the ITO failed to disclose objective evidence to justify the officer’s belief that there were reasonable grounds to believe that a theft of electricity had occurred at the residence of the accused.

The authorizing justice could not independently assess the reliability of the contents of the document sent to the Langley RCMP from BC Hydro. [ 32 ] I find therefore that the ITO did not contain sufficient reliable credible evidence to permit the warrant to be issued. The warrant is quashed. The search of the accused’s residence was therefore a warrantless search and violated the accused’s right to be free from unreasonable search and seizure under

section 8 of the Charter of Rights and Freedoms . Should the Evidence be Excluded? [ 33 ] The criteria that a trial judge must consider in addressing this issue have been set out by the Supreme Court of Canada in R. v. Grant 2009 SCC 32 . These are: 1) What is the seriousness of the breach? 2) What was the actual impact of the breach on the Charter protected interest of the accused? 3) What is the effect on society’s interest in the adjudication of the case on its merits? Seriousness of the Breach [ 34 ] The breach was neither a deliberate nor a reckless disregard of the rights of the accused.

Nonetheless, in my view it is a very serious breach of the accused rights. It is best described, as unacceptably negligent conduct.

This is not a case where an officer was confronted with some changing legal rules or a new case from the Supreme Court of Canada, decided after the search had been done, and which required a significant change in police practices. [ 35 ] The unacceptable negligence in the drafting of this ITO deprived the authorizing justice of any opportunity to independently assess the reliability of the evidence tendered to support the officer’s assertion that there were reasonable grounds to believe that a theft of electricity had occurred or was occurring at the accused’s residence.

The ITO essentially invited the authorizing justice to assume or presume that there must be a basis for the informant’s belief because the source of the information was BC Hydro, a large sophisticated Corporation. But, the ITO did not provide a basis for the authorizing justice to draw any reasonable inferences about the reliability of the evidence. [ 36 ] There is no reasonable explanation for the officer making such fundamental omissions in drafting the ITO. It can only be the result of serious negligence or carelessness.

Such carelessness cannot be countenanced by the court, particularly where it relates to the search of the person’s residence - a place where everyone has a very high expectation of privacy. [ 37 ] Consideration of this branch of the test in R. v. Grant , supra , therefore favours exclusion of the evidence. The Impact of the Breach on the Charter Protected Interest of the Accused [ 38 ] There can be no doubt that this warrantless search of the accused’s home had a serious impact on the high expectation of privacy that she and everyone has in his or her home.

Courts have stated many times that this is one of the most important and fundamental rights of a citizen in Canada – that is, the right to be left alone in one’s home. A person acting on behalf of the state cannot enter and search a person’s home unless it is done according to law. [ 39 ] Consideration of this branch of the test also favours exclusion. Society’s Interest in the Adjudication of a Case on its Merits [ 40 ] The evidence discovered by police in the search was reliable. It is relevant, probative and is absolutely necessary for the crown to prove its case. The offences alleged are very serious.

Without this evidence the Crown’s case must fail. [ 41 ] Thus a consideration of this branch of the test favours inclusion of the evidence. Conclusion [ 42 ] In balancing the above factors, I must consider the long-term effect on the repute of the administration of justice. Admission of the evidence in this case would essentially ignore the importance of the prior authorization process for the issuance of warrants. It has long been a central tenet of the common law that “a person’s home is his or her castle.” Agents of the state are not entitled to enter or

search a person’s home unless explicitly authorized by law. [ 43 ] The high expectation of privacy in a person’s home is recognized by the long-standing practice in common law jurisdictions that in most circumstances searches of a dwelling house cannot be done without a warrant. A warrant can only be obtained on the basis of “credibly based probability” by making a formal application to a justice who reviews the evidence tendered by the state agent. A warrant can only be issued if the state agent complies with basic and well-known legal rules.

In this case, complying with those rules was neither an onerous nor complex task. [ 44 ] The process of requiring prior judicial authorization for a search warrant is thus a central and vitally important part of the administration of justice in Canada. The vital interests that are protected by the prior authorization process would be seriously compromised if the evidence were admitted in this case. The court should not associate itself with state misconduct that would compromise such an important interest.

Even though the case at bar involves quite serious charges and exclusion of the evidence will be fatal to the Crown’s case, that consequence is outweighed in importance by the nature and seriousness of the Charter breach in this case. [ 45 ] I find therefore that admission of the evidence obtained by the breach of the accused’s rights under

section 8 of the Charter of Rights and Freedoms would bring the administration of justice into disrepute. I order that the evidence discovered in the search of the accused’s residence be excluded. The Honourable Judge P.D. Gulbransen Provincial Court of British Columbia