R. v. Metzgner Date:, 2011 BCPC 138

Citation: R. v. Metzgner Date: 20110530 2011 BCPC 0138 File No: 201192-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHANIEL BRIAN METZGNER RULING ON VOIR DIRE II OF THE HONOURABLE JUDGE G. M. RIDEOUT Counsel for the Crown: K. Guest Counsel for the Defendant: A. Nelson Place of Hearing: Vancouver, B.C.

Dates of Hearing: Mar. 28, 2011 Date of Judgment: May 30, 2011 INTRODUCTION [ 1 ] On November 20, 2008, members of the Vancouver Police Department “Grow Busters’ Team” entered a residence at 4989 MacKenzie Street in the City of Vancouver, pursuant to a warrant issued by a Justice of the Peace on November 19, 2008. At the time of entry the residence was essentially unoccupied. There were some pieces of furniture. The cupboards were empty and there was no food in the refrigerator. [ 2 ] Located in the basement of the residence was a marijuana grow operation totalling 850 plants.

Paraphernalia consistent with a marijuana grow operation were also located in various grow rooms. [ 3 ] The accused challenged the constitutional validity of the search under s. 8 of the Canadian Charter of Rights and Freedoms . In a ruling pronounced November 10, 2010, and found at 2010 BCPC 275 (CanLII) , 2010 BCPC 0275 , the argument advanced by the accused prevailed and this Court found that the search of the MacKenzie Street residence was not authorized by law.

ISSUE [ 4 ] The issue to be determined at this stage of the trial is whether or not the evidence located within the MacKenzie Street residence is admissible pursuant to s. 24(2) of the Charter . OVERVIEW OF THE EVIDENCE [ 5 ] The investigation of the residence on MacKenzie Street in the City of Vancouver commenced with an anonymous tip through Crime Stoppers. Following receipt of that anonymous tip Constable Schmiedt of the Vancouver Police Department, Drug Squad, commenced an investigation of the subject property. Her investigation included the attendance at the property on several occasions

where she made observations which, in her experience, were consistent with the presence of a marijuana grow operation.

Those observations were reduced to affidavit form in her Information to Obtain (I.T.O.) and presented to a Justice of the Peace on November 19, 2008. [ 6 ] A discussion of her observations and the reliability of her I.T.O. relating to the s. 8 argument are reviewed at length in this Court’s ruling pronounced November 10, 2010. [ 7 ] It is significant that when Constable Schmiedt submitted her I.T.O. for the issuance of a warrant she set out that the target residence from which an odour of marijuana was emanating was the residence at 4989 MacKenzie Street.

During the first voir dire on the s. 8 challenge she conceded at trial in cross-examination that when she made the observation of the odour of marijuana that she could not rule out that the odour may have come from an adjacent residence located between herself and 4989 MacKenzie Street. [ 8 ] The significance of this evidence was discussed by this Court in the following language at para. 63: Most problematic, and ultimately fatal, was the failure of Detective Constable Schmiedt to advise the Judicial Justice of the Peace that it was possible that the private residence to the west of the Mackenzie Street residence was also a possible target of the marijuana grow operation.

Both in cross-examination and upon questioning by the Court in relation to that issue, Detective Constable Schmiedt testified that she had not “eliminated” the western bearing property as possibly containing the marijuana grow operation.

That significant piece of evidence would, in my view, have an impact on the Judicial Justice of the Peace as to whether or not to grant the issuance of a Search Warrant of a dwelling house. [ 9 ] Ultimately, this Court questioned the reliability of Constable Schmiedt’s evidence in the s. 8 Ruling at para. 65 in the following language: There were numerous points in which Detective Constable Schmiedt confirmed there were omissions or errors in the Information to Obtain, for which she was unable to provide any satisfactory explanation.

Her evidence raises a real concern respecting the reliability of her evidence contained in the Appendix to the Information to Obtain a Search Warrant. I note that Detective Constable Schmiedt’s Affidavit to Obtain did not elaborate on some of the omissions noted in this Ruling when she appeared before the Judicial Justice of the Peace.

In particular, had the Judicial Justice of the Peace known that Detective Constable Schmiedt could not rule out the residence to the immediate west of the target residence as the grow operation, that the Judicial Justice of the Peace would not have issued the warrant to search the target property. POSITION OF THE PARTIES [ 10 ] It is not disputed by either Crown counsel or the accused that the inquiry under s. 24(2) of the Charter requires an analysis of the elements set out in R. v. Grant , 2009 SCC 32 (CanLII) , [2009] S.C.J.

No. 32 . [ 11 ] Crown counsel submits that the conduct of the police in this case was not severe or deliberate which would require that this Court disassociate itself from their conduct. [ 12 ] It is further submitted that if there were errors or omissions in relation to the application for the issuance of a search warrant, those errors or omissions were technical and inadvertent and did not establish bad faith. [ 13 ] It is further submitted that marijuana grow operations are of significant concern to the residence of the City of Vancouver and that the potential for violence and property damage could not be understated. [ 14 ] It is further argued that at the time the MacKenzie Street residence was entered, the various police officers involved in the investigation believed that they had a valid warrant; therefore the entry was with lawful authority. [ 15 ] Lastly, on this leg of the argument, Crown counsel pointed out that if the evidence is excluded the Crown would essentially have no case against the accused. [ 16 ] In relation to the impact of the breach of the Charter -protected interests of the accused, Crown counsel notes that at the time of entry by the police, the residence was essentially unoccupied and therefore any privacy interests enjoyed by the accused were significantly reduced. [ 17 ] It was noted that this was a rental property and that the accused had last been seen at the property by the landlady in August 2008. [ 18 ] Lastly, in relation to society’s interests in the adjudication of the case on its merit, Crown counsel submitted that the truth finding function of the court is a relevant consideration in the application of the Grant inquiry. [ 19 ] It was submitted that in relation to this third leg of the Grant inquiry that there must be a balance in the “interests of society in an investigatory process which has been used to ferret out serious crime in a residential neighbourhood”. ( See R. v.

Wong 2010 BCCA 160 at para 43 ). [ 20 ] Cases relied upon by Crown counsel to support their argument are indexed at Appendix A to this decision. [ 21 ] The accused submits that as this Court found that the search of the MacKenzie Street residence was not authorized by law, then the burden to establish admissibility rests squarely on the shoulders of the Crown. [ 22 ] In particular, the accused argues that the sanctity of the dwelling house elevates the expectation of the privacy. [ 23 ] In relation to the seriousness of a Charter -infringing conduct, it is argued that as the search was of a private residence that the Charter -infringing conduct of the police was not just misleading but rather should be considered as gross negligence, if not outright bad

faith.

In particular, it was noted that Constable Schmiedt did not bring to the attention of the Justice of the Peace that she could not rule out two residences as containing the marijuana grow operation and that omission alone could not be viewed as inadvertent or technical. [ 24 ] In relation to the impact of the breach on the Charter -protected interest of the accused, the accused argues that the protected interest of privacy in relation to the accused’s residence on MacKenzie Street was compromised by the unauthorized entry and search of his residence. [ 25 ] In relation to society’s interests in the adjudication of the case on its merits, the accused argues that those interests could not trump the Charter -protection issues enjoyed by the accused in this case.

On this point, the accused made reference to the recent decision of the Supreme Court of Canada in R. v. Morelli , 2010 SCC 8 (CanLII) , [2010] S.C.J.

No. 8 at para. 109 where the Supreme Court comments as follows: In my view, the repute of the administration of justice will be significantly undermined if criminal trials are permitted to proceed on the strength of evidence obtained from the most private "place" in the home on the basis of misleading, inaccurate, and incomplete Informations upon which a search warrant was issued. [ 26 ] Cases relied upon by defence to support their argument are indexed at Appendix B to this decision. ANALYSIS [ 27 ] The Court in R. v.

Grant has settled the analysis for exclusion or inclusion of evidence where Charter breaches have been established at para 74 as follows: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a 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 the justice system condones serious state misconduct), (2) the impact of the breach of the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [Emphasis added] 1. SERIOUSNESS OF THE CHARTER -INFRINGING STATE CONDUCT [ 28 ] At this stage of the Grant inquiry the actions by the police must be scrutinized in relation to the s. 8 breach finding.

This is not an assessment of fixing blame but a determination and review of the actions taken by the police ensure the public at large remains confident in their actions within the rule of law. In the Morelli case, the residence of the accused and his personal computer were searched pursuant to a warrant that was issued relating to a charge of child pornography.

Justice Fish in examining the evidentiary foundation for the issuance of the original warrant found that the Information to Obtain the search warrant contained false statements given by the police officer as well as an incomplete and misleading account of the facts. In commenting on the impact of such conduct, Justice Fish noted the following at para. 100: The officer who prepared the ITO was neither reasonably diligent nor mindful of his duty to make full and frank disclosure. At best, the ITO was improvidently and carelessly drafted.

Not only did the ITO fail to specify the correct offence ( assessing rather than possession of child pornography); it was also drafted in a misleading way, resulting in the issuance of a warrant on insufficient grounds. [ 29 ] Indeed, there is authority for the proposition that where, in the preparation of an ITO, it is found that the investigation was sloppy then that can result in exclusion rather than inclusion. On this point, the court in R. v.

Mitchell 2010 BCSC 1228 notes that near reckless conduct can result in exclusion as noted at para. 52 in the following language: The Charter -infringing state conduct was not purposeful, but it was at least negligent, bordering on reckless, in a context that demanded a much higher standard of care on the affiant investigator's part. [ 30 ] I note that in this case, Constable Schmiedt was an experienced drug investigator and has attended upon numerous grow operations and was familiar with the smell of bulk marijuana.

She, likewise, was experienced with respect to paraphernalia consistent with a grow operation which included the sound of industrial fans, window coverings and the apparent elevated power use of a hydro meter. [ 31 ] While this Court did find that Constable Schmiedt’s omissions contained in the affidavit to obtain a search warrant to be “significant”, I cannot find that her conduct was deliberate or negligent nor “bordering on reckless”. [ 32 ] Constable Schmiedt gave her evidence in a clear and forthright manner and she readily agreed that upon reflection and review that there were omissions in relation to the affidavit presented to the Justice of the Peace.

However, she thought that at all material times she was acting in good faith. I do find that her conduct does not amount to any improper motive nor that she acted with malice or in bad faith. This is not a case in which the conclusions contained in the Information to Obtain affidavit would be described as a “good guess”. Neither were the reasons to obtain the search warrant farfetched nor illogical, nor were they designed to mislead the approving Justice of the Peace. The actions of Constable Schmiedt and the subsequent actions of the entry team do not amount to a serious abuse of state power. ( See R. v.

Lavender , 2010 BCSC 1413 and R. v. Vu 2010 BCSC 1260 ). [ 33 ] Accordingly, I find that the state conduct in this case favours inclusion rather than exclusion of the evidence. 2. THE IMPACT OF THE BREACH ON THE CHARTER -PROTECTED INTERESTS OF THE ACCUSED

[ 34 ] The second factor identified in Grant calls for an evaluation of the extent to which the breach intruded upon the “privacy, bodily integrity and human dignity of the accused”. ( See Grant at para. 109 ). The more serious the impact on those interests then the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. [ 35 ] As noted in Grant at para. 76 : The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

In this case the former would apply rather than the latter as the accused was not residing at the MacKenzie Street property. Indeed, he was last seen at the property in or about August 2008. Were the MacKenzie Street residence the actual private dwelling place for the accused, then he would enjoy a high expectation for privacy. The search conducted by the Vancouver Police Department clearly did not interfere with anyone’s dignity in relation to the MacKenzie Street residence. Accordingly, this finding favours inclusion rather than exclusion of the evidence. 3.

THE PUBLIC INTEREST IN HAVING THE CASE ADJUDICATED ON ITS MERITS [ 36 ] The third factor identified in Grant requires a consideration of the effect of admitting the evidence and the public evidence in having a case adjudicated on its merit. What is in issue here is the admission of highly reliable evidence which is clearly critical to the prosecution. [ 37 ] As noted in R. v. Chuhaniuk 2010 BCCA 403 the reasons of Mr. Justice Frankel are instructive at para. 90: This brings me to the final factor: society's interest in the adjudication on the merits.

What is in issue here is highly reliable evidence, critical to the determination of the case on its merits. Although marihuana is not a "hard" drug, its production and distribution are serious offences: Mann at para. 57; Grant (1993) at 261; R. v. Buhay , 2003 SCC 30 , [2003] 1 S.C.R. 631 at para. 68 . The public clearly has an interest in the successful prosecution of those who engage in large-scale commercial marihuana-related activity. [ 38 ] In this case the marijuana grow operation was located in a concentrated residential area of Vancouver.

The problems associated with marijuana grow operations within the Lower Mainland are a problem that was identified by Mr. Justice Brown in R. v. Purchase 2011 BCSC 154 where the court notes at para. 150: The final branch of the analysis requires consideration of society's interests. Marijuana grow operations are an insidious problem within the lower mainland area, and the associated dangers of fire and violence are well documented: R. v. Ly , October 19, 2009, unreported judgment, New Westminster Registry XO70655; R. v. Wallis , 2007 BCCA 377 .

In the case at bar, the evidence obtained by the police is concrete, highly reliable evidence and essential to the Crown's case.

Were this evidence to be excluded, the Crown's case would be seriously hampered, and most likely would collapse. [ 39 ] While the accused argues that the evidence obtained from the MacKenzie Street residence was as a result of “misleading, inaccurate and incomplete Informations”, I find that a reasonable and well-informed public aware of the location of the MacKenzie Street residence in Vancouver and understanding the fact that this residence was unoccupied and not owned by the accused would accept the need to admit the evidence in the face of this Court’s ruling that there was a s. 8 breach, especially so where there is no finding of bad faith by the police in relation to securing of the warrant and the subsequent search of the residence. [ 40 ] Accordingly, I find that society’s interests in the adjudication of this case on its merits favours admission of the evidence. 4.

BALANCING THE FACTORS [ 41 ] In balancing all of the factors in the Grant inquiry I conclude that, in the long term, the repute of the administration of justice would be adversely affected by excluding the evidence obtained from a search of the MacKenzie Street residence. _________________________________ The Honourable Judge G. M. Rideout Provincial Court of British Columbia