R. v. Churchland and McGuire Date:, 2014 BCPC 137

Citation: R. v. Churchland and McGuire Date: 20140122 2014 BCPC 0137 File No: 191787-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES CHRISTOPHER CHURCHLAND and WENDY JEAN McGUIRE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: Federal Crown: S. Price Counsel for James Churchland : M. Klein

Counsel for Wendy McGuire : M. Jette Place of Hearing: Surrey , B.C. Date of Hearing: January 21, 2014 Date of Judgment: January 22, 2014 [ 1 ] THE COURT : This is a ruling on a voir dire . The defence argues that there are fatal flaws in the Information to Obtain the Search Warrant which has resulted in a warrantless search. The application was presented to the Justice via fax at the Burnaby Call Centre at 8:01 a.m. on Thursday, January 19th, 2012. The warrant was issued 19 minutes later.

The Information to Obtain a Warrant was presented as a result of an investigation into theft through diversion of electrical services from B.C. Hydro. [ 2 ] I will read out from the Information to Obtain which has been challenged by the defence. Paragraph 6 states that: On January 12th, 2012, Vince Arsenault (phonetic), a B.C. Hydro security investigator, sent an e-mail to the Langley RCMP Drug

Section advising of the following: At approximately 0012 hours on the 22nd of November 2011, B.C. Hydro security investigators, Vince Arsenault and Jerry Myers (phonetic), attempted a service check at the property located at 25154 48th Avenue, Aldergrove, B.C. A service check involves qualified personnel determining whether the total amount of electricity being used at a property is being recorded by the electrical meter that measures the consumption for billing purposes.

An ammeter is placed on the service line to the property ahead of the meter in order to measure the actual electricity delivered to the property. A stopwatch is used to determine one complete revolution of the meter. Using a mathematical formula, the results are then converted into units of power known as watts and then compared. If the amount of electricity being delivered to the property is greater than the amount of electricity being measured by the electrical meter, that discrepancy indicates that a theft of electricity is taking place.

Security Investigator Vince Arsenault placed an ammeter on the service line to the property and, using a mathematical formula, he recorded 19,200 watts being consumed at this property. Due to the property being fenced off, a closed gate at the driveway and the risk of being compromised, the security investigators were unable to access the meter to compare the ammeter readings with the actual meter readings at that time. Notwithstanding, the security investigators advised that this reading of 19,200 watts was excessively high. The investigators reviewed the most recent B.C.

Hydro consumption records for this property and noted that the recorded meter consumption was far less than the results of their ammeter check. At approximately 1045 hours on the 21st of December 2011, B.C. Hydro Security Investigators Vince Arsenault and Bob Kirkwood attended at 25154 48 Avenue, Aldergrove, B.C., for the purpose of conducting a service check. Security Investigator Vince Arsenault placed an ammeter on the service line to the property and, using a mathematical formula, he recorded a reading of 21,288 watts being consumed at this property.

Due to a closed gate at the property, the property being fenced off and the risk of being compromised, the security investigators were unable to access the meter to compare the ammeter readings with the actual readings at that time. Notwithstanding, the security investigators advised that this reading of 21,288 watts was excessively high. The investigators examined the most recent B.C. Hydro consumption records for this property and observed and that the recorded meter reading was the 25th of October 2011 to the 21st of December 2011, were 5,821 kilowatt, or KWH, for this 57-day period.

This equates to 102.12 KWH per day. Arsenault also examined the billing period immediately prior to the commencement of this investigation, which included the 23rd of August 2011 to the 25th of October 2011, and observed that the recorded meter readings were 3,406 KWH for that 63-day period. This equates to an average consumption of 54.04 KWH per day. At approximately 1120 hours on the 6th of January 2012, B.C. Hydro Security Investigators Arsenault and Myers attended at that same address for the purpose of conducting a service check.

Security Investigator Arsenault placed an ammeter on the service line to the property and, using a mathematical formula, recorded a reading of 26,880 watts being consumed at this property. Due to a closed gate at the driveway, the property being fenced off and the risk of being compromised, the security investigators were unable to access the meter to compare the ammeter readings with the actual meter readings at this time. Notwithstanding, the security investigators advised that the reading of 26,880 watts was excessively high.

Having read all that into the record, I am reminded of the letter that Mark Twain wrote to a friend, "Please excuse the length of this letter. I don't have time to be brief." [ 3 ] The defence argues that the ITO contains bald assertions of the fact, which are really opinions that have no factual foundation to support such beliefs. For example, in paragraph 6(g): Even though the investigators were unable to access the meter to compare the ammeter readings with the actual meter readings, they state that the readings were 'excessively high'.

That opinion was formed even though they did not observe any physical evidence of any electrical bypass being in place. [ 4 ] Another disturbing aspect of the ITO, it is submitted, is contained in paragraph 6(j), which states: I (Vince Arsenault) therefore believe that an ongoing theft of electricity is occurring at the residence. [ 5 ] The affidavit, of course, is framed by Cst. Cook. Mr. Arsenault is a former RCMP officer who served for 33 years; 25 of those years were spent in drug enforcement.

In any event, the thrust of the defence argument is that the Information to Obtain simply states that the usage was excessively high, but excessive compared to what? There is no evidence as to what was being used on January 19th. Furthermore, paragraph 15 states that: The diversion is not usually ceased unless discovered by the police, a landlord, B.C. Hydro or otherwise. [ 6 ] It is argued there are other explanations such as people vacating a residence or being on vacation. Personally, I might add that the phrase "or otherwise" is open to a number of

interpretations. [ 7 ] The governing principles for such an application have been set out by our Court of Appeal in R. v. Wilson , a 2011 decision where Mr. Justice Frankel states: A search warrant is presumed to have been properly issued and an accused bears the burden of proving otherwise. I'm reading from paragraph 63. When an accused seeks to challenge a warrant there is no right to a voir dire and a trial judge should generally be able to decide whether to hold one on the basis of the submissions of counsel.

However, if a voir dire is declared, then it does not automatically follow that witnesses will be called. A trial judge may decide that it is appropriate to limit a voir dire to arguments regarding, for example, the scope of the warrant or the facial sufficiency of the ITO. Every case will depend on its particular facts. He goes on to say at paragraph 65: However, the fact that an accused is granted leave to cross-examine does not give the Crown the ability to examine the informant in- chief with respect to the contents of the ITO.

More specifically, it does not provide the Crown with an opportunity to do what occurred here, namely, to attempt to "amplify" the ITO. In paragraph 66, he states: The granting of leave to cross-examine allows an accused to challenge the basis on which a search warrant was granted. The warrant having been obtained on the basis of an ITO, that document stands as the informant’s evidence in-chief.

Although an accused is entitled to challenge the correctness of the statements in an ITO, and to bring out other facts that undermine the efficacy and reliability of those statements, the Crown is not entitled, in the first instance, to seek to bolster an ITO or to correct errors in it. He then deals with the issue of amplification at paragraph 68: It is important to keep in mind that in R. v. Araujo , [citation given] the discussion with respect to amplification arose in the context of "new" facts being brought out through cross-examination. As discussed by Mr.

Justice LeBel in Araujo , amplification cannot be used to circumvent the need for the informant to satisfy a justice of the peace that the requirements for the issuance of a search warrant have been met. [ 8 ] The defence has also referred the court to the decision of the Supreme Court of Canada in R. v. Garofoli , which states at

paragraph 56: 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 the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [ 9 ] The defence has also relied upon the Supreme Court of Canada decision in R. v. Araujo , which states at paragraph 52: ...the reviewing judge must carefully consider the existence of sufficient reliable information, that is, information that may reasonably be believed on the basis of which the authorization could have issued.

Other appellate court jurisprudence confirms this understanding. The court states at paragraph 53: In the context of reviewing a search warrant, appellate courts have looked to whether the authorization could have issued. But they look at this in context. For example, in R. v.

Monroe [citation given], Esson J.A. stated that, after looking for whether there was sufficient grounds on which the judge could have authorized a warrant, "The judge was then required to assess the evidence placed before the justice, in the light of the evidence brought out at trial, in order to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support the warrant." [ 10 ] The defence has also relied on the decision of Mr. Justice Romilly in R. v. Russell et al where Mr.

Justice Romilly states at paragraph 66: A "mere conclusory" statement made by an informer to a police officer would not, without more, constitute reasonable and probable grounds to issue a warrant. He quotes from R. v. Greffe , a 1990 decision of the Supreme Court of Canada: The bald assertion rule states in effect that belief by itself without a foundation for it is not acceptable as it does not cross the threshold from the speculative to the probative. He quotes Mr. Justice Lamer in Greffe , who had quoted from Mr. Justice Martin in Debot v.

The Queen : I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search... highly relevant... are whether the informer's "tip" contains sufficient detail to ensure that it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.

He quotes from the Supreme Court of Canada case in Re Restaurant Le Clemenceau Inc. and Drouin et al , a 1987 decision, where: ...the court had to review material which was said to authorize a search under the Quebec Revenue Act . On a Writ of Evocation, which in Quebec is a writ to strike out a search, the headnote reads in part as follows: In determining whether or not to authorize the search or seizure under s. 40 of the Act, the judge of the Court of the Sessions of the Peace exercises a judicial function.

In order to perform his duty the judge was required to determine whether the facts upon which the informant's belief was based were such that his belief was, in fact, reasonable. Since none of the facts were disclosed in the information to obtain the authorization, the judge had the duty to ask for further information which, however, in this case he elected not to do.

On the material that was in fact before the judge, he could not have verified the reasonableness of the informant's belief and his approval of the warrant accordingly gives rise to the writ of evocation. [ 11 ] The defence has also referred me to the decision of Madam Justice Koenigsberg in R. v. Sharpe , a 1997 decision of our

Supreme Court. She dealt with a

summary issue and at paragraph 18, she states: On the basis that a plain reading of the information before the Justice of the Peace would demonstrate a below average consumption of electricity at the residence of the accused, the Crown conceded there was insufficient evidence for the Justice of the Peace to grant the warrant and therefore the search of the accused's residence was illegal. She goes on to say at paragraph 28, that: Paragraph 8 -- She is referring, of course, to the Information to Obtain. -- is the product of sloppy and careless police work.

On the basis of the evidence in the possession of the police or stated in the information to obtain a warrant, and the evidence given at trial by Constables Woroniak and Desrosiers, the police did not have any evidence, as opposed to assumptions or inferences, that the hydro consumption at the accused's residence was higher or lower than average for that type of dwelling. They had no direct comparisons and no facts with which to compare what the consumption was - that is, was it high or low for that residence. Further the police had no evidence as to what billing period "2000 ave kwh" meant.

It could have been 1 month or 2 months. This information , it was conceded by the Crown, was essential to justify a warrant. [ 12 ] I have also been referred to a decision of Mr. Justice Williamson in R. v. Vadon , a 2000 decision of our Supreme Court, where once again, Mr. Justice Williamson was dealing with a similar issue. The next item was the consumption of electricity. He says at paragraph 9: As I said, the police officer from a neighbouring yard observed the hydroelectric meter.

He timed the rotations of the disc and from this, using a formula that someone had given him, which had apparently come from someone at BC Hydro, he did a calculation of the usage at that particular moment and concluded that it was high and that this was consistent with a marihuana grow operation. I observed to counsel during submissions that I was unable to discern any probative value in this evidence. I remain of that view. He goes on to say at paragraph 10: I might say that the watts that were calculated by the officer in this case were 6,201.

Many of the other reasons for the consumption of electricity, baseboards, ovens, appliances and so forth, at a particular moment were conceded in the case at bar by the officer concerned. In any case , one does not need an expert to conclude that one reading of the level of consumption of electricity at a particular moment, or, I suppose, a particular five seconds, tells one nothing about the average consumption of electricity over time.

The probative value of such information, if any, is miniscule, yet the officer emphasized this factor in the information to obtain the warrant. “High” in the expression “high electricity consumption” is the only word in that document placed in bold capital letters. [ 13 ] The Crown argues that any errors that are alleged in the Information to Obtain have to be clear and demonstrative. The affidavit sets out the experience of Mr. Arsenault and, based upon that evidence, he found the hydro consumption to be excessively high. The Crown distinguishes R. v.

Monroe in that the Information to Obtain in that case was found to be misleading and deceptive, which is not present in the case at bar. [ 14 ] The Crown agrees with the passage of the decision in R. v. Wilson and refers the court to paragraph 37 of that decision which states: The test to be applied in determining whether a search warrant (or wiretap authorization) was properly issued is well-known. It is often referred to as the Garofoli test, as it was first articulated by the Supreme Court of Canada in R. v. Garofoli ...

That test has been affirmed and applied by that Court in a number of cases [citations given]. Recently, in R. v. Bacon , [citation given], Mr. Justice Donald adopted the following as a succinct statement of that test: 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 this enquiry, their sole impact is to determine whether there is a continuing basis to support the warrant. [ 15 ] The Crown also relies on the decision of R. v. Araujo and refers the court to paragraph 53 of that decision. Starting with the sentence before in paragraph 52: As this Court confirmed in Bisson , supra , the reviewing judge must carefully consider the existence of sufficient reliable information,

that is, information that may reasonably be believed on the basis of which the authorization could have issued. Other appellate court jurisprudence confirms this understanding. In the context of reviewing a search warrant, appellate courts have looked to whether the authorization could have issued… But they look at this in context. For example, in R. v.

Monroe , Esson J.A. stated that, after looking for whether there was sufficient grounds on which the judge could have authorized a warrant, "The judge was then required to assess the evidence placed before the justice, in the light of the evidence brought out at trial, in order to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support the warrant." [ 16 ] On considering the evidence before me, as well as the relevant case law that I have been referred to and the submissions of counsel, I agree with the defence submissions that the Information to Obtain simply contained bald assertions and/or opinions which did not have any meaningful factual foundation to support such conclusions.

I have, therefore, concluded that there was insufficient evidence before the justice to reasonably conclude and validly support the issuance of a warrant. It follows that any subsequent search was unreasonable within s. 8 of the Charter. (RULING CONCLUDED)