R. v. Chaif-Gust Date:, 2011 BCPC 29

Citation: R. v. Chaif-Gust Date: 20110110 2011 BCPC 0029 File No: 201536-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA BENNET CHAIF-GUST EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE and REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE F.E. HOWARD Counsel for the Crown: S. Manery Counsel for the Defendant: A. King Place of Hearing: Vancouver , B.C.

Date of Hearing: January 10, 2011 Date of Judgment: January 10, 2011 [ 1 ] THE COURT: This accused is charged with three offences: Count 1: unlawful possession of a controlled substance, cannabis marihuana, in an amount exceeding three kilograms for the purpose of trafficking; Count 2: unlawful production of a controlled substance, to wit, cannabis marihuana; and Count 3: possession of a stolen generator valued in excess of $5,000. OVERVIEW

[ 2 ] Members of the Vancouver Police Department had reasonable grounds to believe that a marihuana production operation (the "marihuana grow-op") was occurring at 2484 McGill Street, Vancouver, British Columbia. They applied for and successfully obtained a warrant to search this residence for evidence of this offence. [ 3 ] On July 23rd, 2009, under the direction of Detective Constable Mah, the police attended at the target residence to execute the search warrant. D/C Mah was responsible for the initial entry into the residence. 1.

The Detention, Arrest, and Search of the Accused [ 4 ] The front and rear of the target residence were under police surveillance for some 20 to 30 minutes prior to entry into the residence. No one entered or left the residence during this time. Prior to entry, the police stationed a marked police vehicle outside the front of the residence along with several uniformed officers who stood in plain view of the residence. Sergeant Monroe used his public address system to announce the police presence. With the volume up high, he broadcast his message: Occupants of 2484 McGill, this is the Vancouver Police.

We have a search warrant. Come to the front door now. [ 5 ] Some 30 to 60 seconds after this announcement, police officers who were performing containment duties at the rear of the residence observed the accused and the co-accused, Thomas, who is not before me, step out onto the back porch via the rear door of the residence. Once they had come down the stairs, these two men were told to get on the ground and crawl to the laneway where the officers were waiting. Constable Wong, one of the rear containment officers, took the accused into custody.

He put the accused in handcuffs and then placed him in a locked compartment of a waiting police wagon. He did not search him. He then returned to the rear of the residence to collect Thomas. Thomas was also handcuffed and placed into another locked compartment in the police wagon. [ 6 ] The two suspects came out of the house at approximately 9:38 a.m. Both were in the police wagon by 9:46 to 9:51 a.m. [ 7 ] Constable Wong then spent some 15 to 20 minutes at the front of the residence while other officers went inside to clear the residence.

Upon learning over the police radio that the residence had been cleared and that a marihuana grow-op had been found inside, Constable Wong returned to the police wagon to arrest his two suspects. [ 8 ] The constable advised the accused that he was under arrest for marihuana production and PPT marihuana. He obtained the accused's name, birth date, and address. He advised the accused of his right to counsel. The accused indicated that he did indeed wish to speak to a lawyer. It was now 10:20 a.m. Constable Wong then conducted a search of the accused and found two keys in his pants pocket.

Thereafter, he proceeded to formally arrest the second suspect, Thomas. Constable Wong also located keys on Thomas during the search of this man. Both men were then transported to the police station. Constable Wong remained at the scene. [ 9 ] The evidence located in the residence was photographed and collected. Fingerprint tests were conducted. The operation was dismantled and carried away. Once the search and forensics teams had completed their work, Constable Wong secured the residence by locking the back door with one of the keys that he had found in the accused's pocket.

This was at 1:15 p.m. [ 10 ] In the meantime, the accused had been formally booked into the jail at 12:20 p.m. by Constable Stewart. He photographed and fingerprinted the accused. The accused was eventually allowed to contact a lawyer, but not until 4:04 p.m. Constable Wong subsequently returned to the jail and released the accused on an appearance notice. 2. The Results of the Search [ 11 ] The residence at 2484 McGill Street is a two-story building with a basement.

Upon entry, the police discovered that the entire residence was dedicated to a marihuana grow-op save for three areas on the main floor: the kitchen, a living room area, and a bathroom. The operation consumed the basement where the police located four 'grow rooms' and an electrical area. The main floor contained two 'grow rooms'.

The two-room attic contained one 'grow room' and a room that housed a large generator that was connected to the gas line running up from the basement gas furnace. [ 12 ] The usual production equipment was present in the residence including fluorescent lights, shrouds with high intensity lights, plastic reflective sheeting, a second circuit box, air-conditioners, and ducting throughout the rooms, the stairways, and the hallways of the residence. The two 'grow rooms' on the main floor each contained a carbon filter and fan that were operating, but not connected to any vents or ducting.

They simply circulated the air through the filters and back into the rooms. [ 13 ] The police located a total crop of 819 plants, inclusive of 350 clones. The total estimated value of the crop, assuming three ounces of marihuana per plant, is between $276,372 (if sold at the gram level) and $696,546 (if sold at the pound level). If sold at the ounce level ($200 per ounce) the value was somewhere in between.

The 21 lamp assemblies found in the residence have a total estimated value of $5,250. [ 14 ] No personal items were found in the residence that might have connected any particular individual to that residence or the illegal operation. The fingerprints of the accused, Thomas, were found on pieces of equipment associated to the grow-op. Fingerprints of the accused were not located anywhere in the residence. [ 15 ] Upon entering the residence, the police discovered that the front door was barricaded by a wooden brace and then further blocked by a sofa that was placed on its end against the door.

The ground-floor rear door leading from the basement to the back yard was also sealed shut. No one could get in or out through the front door or the rear-basement-level door. This would explain why the accused and Thomas defied the police instructions to come to the front door. They had no choice but to come out the upper-rear door leading from the main-floor kitchen. 3. The Proceedings [ 16 ] A voir dire was declared to canvass the defence application under s. 24(2) of the Charter to exclude evidence of the key located

in the accused's pocket and evidence relating to the identity of the accused that was created at the jail during the booking procedure with Constable Stewart. This latter evidence would include the booking report containing the accused's name and photograph. [ 17 ] This application was predicated on the allegation that there were breaches of ss. 8 and 9 of the accused's Charter rights. The defence position was that the detention of the accused and the arrest of the accused were unlawful and arbitrary.

The search of the accused which yielded the key to the residence was itself unreasonable in that it was conducted incidental to an unlawful arrest. [ 18 ] The defence also alleged that the accused's rights under s. 10(

a) and (

b) of the Charter were infringed. The Crown concedes these two points. It is clear that the accused was never advised of the reasons for his detention when he was handcuffed and locked in the police wagon, where he stayed for some 42 minutes until his arrest.

During the subsequent arrest procedure, the accused was finally advised of his right to retain and instruct counsel without delay, but he was not given access to counsel until some five-and-a-half hours later. [ 19 ] After hearing argument on the remaining voir dire issues, I advised counsel of my conclusion that the application for exclusion of the evidence was denied. The trial continued. The evidence heard on the voir dire became the evidence on the trial. No further evidence was called. I then heard submissions on innocence or guilt.

My reasons relating to the voir dire issues are set out below, followed by my reasons for judgment on the trial proper. I. RULING ON THE VOIR DIRE: SECTIONS 8 and 9 OF THE CHARTER [ 20 ] The issues are as follows: i. Were there reasonable grounds to suspect that the accused was implicated in the marihuana grow-op so as to entitle the police to detain him for investigative purposes? ii. Did the initial detention of the accused, which lasted some 42 minutes, amount to a de facto arrest? iii.

Were there reasonable grounds to believe that the accused was a party to the marihuana grow-op so as to entitle the police to subsequently arrest him and thereafter conduct a search incidental to arrest? iv. If the detention and arrest and search of the accused were contrary to the Charter , should the house key and identification evidence (the booking sheet with a photo of the accused) be excluded from the trial under s. 24(2) of the Charter ? 1. The Evidence: Grounds for Detention and Arrest (

a) D/C Mah [ 21 ] D/C Mah was the officer assigned to supervise the entry into the residence under the authority of the search warrant. His instructions to his entry team at the morning briefing prior to the execution of the warrant were as follows: Anyone "associated with the house" was to be taken into custody. Here, he was referring to anyone "found in the residence or seen leaving the residence" during the execution of the warrant. [ 22 ] During cross-examination, D/C Mah acknowledged that, in general, anyone coming out of a targeted residence during the execution of a search warrant would be detained.

However, he confirmed that the actual process was a fluid one and adjustments could and would be made as events unfolded. For example, if children were found in the residence, they would not be detained. [ 23 ] As to whether a person taken into custody after leaving the residence during the execution of a search warrant should be handcuffed and put into a police wagon, this is a matter that he would leave to the discretion of the detaining officer. He confirmed that from his perspective anyone seen "fleeing" a residence during the execution of a search warrant was arrestable.

However, he stressed that every case is different and discretion would have to be exercised based on the dynamics of the particular situation facing the officers. [ 24 ] The gist of D/C Mah's testimony was as follows. In this particular case, it was his belief that the target residence was uninhabited. He believed that the residence was being used solely to house the marihuana grow-op that was the subject of the search warrant. From his perspective, anyone who did attend at this residence likely did so only for the purpose of tending to the marihuana grow-op that was inside.

These beliefs were grounded on a number of observations made prior to execution of the warrant. The residence was in a state of disrepair. It was worn and uncared for. The lawns were brown and untended. During surveillance, no activity had been seen in or about the residence. [ 25 ] During his own drive-by on the day prior to execution of the warrant, D/C Mah saw no activity at the residence. There were no items in the yards, no patio or garden furniture, children's toys, et cetera, that would suggest that anyone lived in the residence.

The windows were all covered with drapes or sheets. [ 26 ] Upon his arrival at the residence at 9:30 on July 23rd, 2009, D/C Mah received an update. He learned that no activity had been seen at the residence during the 20 to 30 minute observation period prior to his arrival. [ 27 ] After the public announcement of the police presence, D/C Mah heard a broadcast indicating that someone was leaving from the rear door of the residence. His

interpretation was that someone was fleeing via the back door in defiance of his instructions that the occupants come to the front door. [ 28 ] He went to the rear of the residence and saw the two suspects being taken into custody. He saw that the upper rear door of the residence was ajar. He approached the steps leading to this rear door. At the bottom of the steps, he could immediately smell the strong odour of marihuana coming from the residence. It was so strong that he instructed his entry team to put on their respirator masks. [ 29 ] D/C Mah led the entry team in the residence. He entered the kitchen. It was sparsely furnished and filthy. There was soil

tracked along the kitchen floor. There were no signs of cookware, utensils, or food. He proceeded into the main-floor hallway. His waywas impeded by a washing machine, plastic tubes, and an air conditioner. [30] There was a cramped living room area that was itself in a mess. There were a couple of couches. On top of one couch, therewere a few dirty clothes, a towel, and a Samurai sword. Sheet metal elbows suitable for use in the grow-op were scattered on the floor. There were tools. The coffee table was cluttered with cereal boxes and other items. There was a flat screen TV.

The front window wascovered with a bed sheet. [31] The washing machine in the hallway made it very difficult to get into the bathroom. There were a few items on the counter bythe bathroom sink. Otherwise, the usual toiletry items were not present. There were no towels in this room. He described the bathroomas filthy, like the kitchen. [32] He noted that the front door was barricaded shut in the manner described above. He walked through the grow rooms on the mainfloor. He then went upstairs to the attic grow room. The stairs and upper hall were cluttered with insulation, foam, soil, and lumber.

There were some holes in the floor that he had to watch for. [33] He went downstairs to the basement and discovered the four grow rooms and the electrical space. He had to make his wayaround wires, hoses, and ducting. [34] As a result of this initial sweep of the residence, D/C Mah was satisfied that there was no one else in the residence. He noted thathis initial belief that the residence contained a grow-op was confirmed. He was also satisfied that the condition of the residence wasconfirmatory of his initial belief that no one was living in the residence. There were no beds or sleeping quarters of any kind.

A fewpieces of clothing were found in the living room, but no clothing was found elsewhere in the residence. At best, the living room area wasbeing used by people who came to tend the marihuana plants, but for no other apparent purpose. [35] Other police members were advised by radio that the residence had been cleared and that a marihuana grow-op had been found. According to D/C Mah, any officer outside the residence would have understood from this information that, "We have an offence.

People are arrestable." [36] D/C Mah was of the view that he had the necessary grounds required to arrest the accused as soon as the latter had fled out therear door and the presence of marihuana had been confirmed by the strong odour of marihuana wafting out the open rear door. (

b) Constable Wong [37] Constable Wong was the officer who detained and subsequently arrested the accused. He did so primarily on the basis ofinstructions delivered by D/C Mah at a briefing that occurred prior to the police attendance at the residence. [38] Constable Wong was a three-year member of the police force. Although he had participated in three search warrant executionsprior to this one, he had just been assigned to the drug unit that was going to execute this search warrant.

I am satisfied that this officerhad little to no knowledge of the facts underlying this investigation and that he exercised little independent judgment during the detentionand arrest of the accused. He simply followed the general instructions that had been given by his supervisor, D/C Mah. [39] Constable Wong described the instructions given at the briefing. A search warrant had been obtained based on the belief thatthere was a marihuana grow-op at the house. The police were not sure if anyone was at the residence. If anyone did come out: We would be taking them into custody.

We were to secure such persons until the investigation could confirm that an offence wasoccurring at the residence. Upon receiving confirmation of an offence, persons in the residence were to be arrested and chartered. [40] In accordance with the above instructions, Constable Wong took the two suspects who had come out of the rear of the residenceinto custody. He asserted that he handcuffed them and put them into the police wagon for police safety reasons.

He knew he wasexpected to go to the front of the residence to act as the containment officer at that location while the other officers entered and clearedthe residence. He explained that he could not attend to these duties and maintain custody of the two suspects at the same time. [41] Once the entry team came out of the residence and confirmed that it had been cleared and that there was a marihuana grow-opinside, Constable Wong left the front of the residence and returned to the police wagon to arrest the suspects.

Again, this was inaccordance with Constable Mah's instructions, as Constable Wong understood them. [42] Constable Wong had his own view, as well. He believed that the two suspects were arrestable. The marihuana grow-op hadbeen discovered. He believed that the two suspects were connected to the operation because of their conduct. They had come out of therear of the residence, notwithstanding the direction that they come to the front door.

He explained that, based on his past experience,persons who leave the residence through the back door rather than the front door in these circumstances "... are trying to run away. Theyare trying to avoid police detection." 2. The Law (

a) Investigative Detention [43] The police may detain a suspect for investigative purposes even in the absence of reasonable grounds to arrest; however, thispower is a limited one. The twofold test for when this power may be invoked is discussed by the Supreme Court of Canada in R. v.Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59 at paragraph 34. [44] Firstly, there must be reasonable grounds for the investigative detention: "The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s

suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence." [45] Secondly, the reasonableness of the decision to detain must then be examined in context with all of the circumstances: "The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notablythe extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and thenature and extent of that interference ..." [46] The court in Mann, supra, added the following caution at paragraph 35: 35.

Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, theyare not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to theCanadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do nothave carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest. (

b) De Facto Arrest [47] On the issue of what constitutes a de facto arrest, I have been directed to a number of cases including R. v. Latimer, (SCC), [1997] 1 S.C.R. 217 (S.C.C.); R. v. Orr, 2010 BCCA 513 (B.C.C.A.) and 2008 BCPC 367 , [2008] B.C.J. No. 2470(B.C.P.C.); R. v. Hoang, 2010 BCPC 230; and R. v. Thi, So, and Young, Vancouver Registry Number 192130, May 4th, 2009,(B.C.P.C.). [48] The facts in the Latimer case, supra, are unique. The police indicated that they did not want to "arrest" Latimer even though theybelieved there were reasonable and probable grounds to do so.

Instead, they told him that he was detained, that he was underinvestigation in relation to the death of his daughter, and that the matter was a serious one. He was transported to the police station sothat he might be interviewed. He was advised of his right to counsel and his right to remain silent on a number of occasions. TheSupreme Court of Canada was satisfied that reasonable grounds to arrest Latimer were clearly present and that in the circumstances ofthe case, the detention of Latimer amounted to a de facto arrest. At paragraph 24, Mr. Justice Lamer stated: 24.

However, notwithstanding what the intention of the officers may have been, their conduct had the effect of putting Mr. Latimer underarrest. To understand why, we need only turn to the definition of arrest offered by this Court in R. v. Whitfield, (SCC),[1970] S.C.R. 46. Judson J., speaking for the majority of the Court, held that an arrest consists either of (

i) the actual seizure or touchingof a person’s body with a view to his detention, or (ii) the pronouncing of “words of arrest” to a person who submits to the arrestingofficer. The term “words of arrest” was not defined in that judgment. However, in my mind we should decline the invitation to adoptthe narrow view of that term proposed by the appellant, i.e. that only the word “arrest” will suffice. [49] In Thi, So, and Young, supra, I had occasion to consider the law relating to de facto arrests.

In this 2009 decision, I expressed theview that the notion of a de facto arrest, as defined in Latimer (1997), must be "tempered" by the recognition in Mann (2004) that adetention short of arrest is a legitimate investigatory tool, as is a protective pat-down search of a detainee in appropriate circumstances. [50] At paragraphs 49 and 50, I concluded: 49. It can no longer be said that in all cases "the actual seizure or touching of a person's body with a view to his detention" amounts toa de facto arrest.

If a police officer conducts a justifiable pat-down search of a detainee during an investigatory detention, this willobviously include a "touching" of the suspect in a controlling fashion. There may well be occasions when the handcuffing of a suspectdetained for investigatory purposes is legitimate, so long as it is for a brief period and the basis for such an action is reasonable in thecircumstances. In neither case will these doctrines amount to a de facto arrest under the Mann doctrine of investigatory detention. Onthe other hand, the purported detention in Latimer, supra, would likely not pass muster.

Applying the test in Mann, supra, the detentionof Latimer was clearly a de facto arrest. 50. It seems to me that post-Mann, the question of whether an investigatory detention has passed into the realm of a de facto arrestcan only be answered by a consideration of all of the circumstances, including the events surrounding the detention, the purpose for thedetention, the words used by the detaining officer and the length of the detention.

The fact that a detainee was handcuffed or otherwise"touched" for the purpose of effecting a detention are factors to take into accounts, but they are not determinative of the issue. [51] In Thi, et al, supra, I concluded that the takedown, at gunpoint, of the three occupants of the residence that was the subject of amarihuana grow-op search warrant and their subsequent confinement to the dining room of the residence in handcuffs for a one to two-minute period prior to their arrest did not constitute a de facto arrest. [52] On the other hand, in similar circumstances, the trial judge in Orr, supra, concluded that the takedown and handcuffing of theaccused on the front porch of the residence moments prior to the execution of the search warrant did amount to a de facto arrest.

Moments after entering into the residence, an officer had yelled out that there was a marihuana grow-op inside. The accused was thenimmediately arrested for marihuana production. The Court of Appeal declined to interfere with the trial judge's conclusion that the initialdetention of the accused, Orr, amounted to a de facto arrest (para. 11). [53] In Orr, supra, there was evidence from the police that "everyone who answered the door would be arrested and handcuffed".

Moreover, the accused was arrested immediately upon discovery of the marihuana grow-op for the simple reason that he was inside theresidence at the time that the police attended. This was itself an unlawful arrest there being no evidence that the accused had any controlover the operation. The arrest was at least consistent with the stated police position: Anyone who answered the door would be arrested.

In this context, the characterization of the brief initial detention of the accused as a de facto arrest is understandable. [54] One month after the decision in Orr, supra, our Court of Appeal handed down its decision in R. v. Trieu, 2010 BCCA 540. Inthis case, the RCMP obtained a search warrant relating to a suspected theft of hydro electricity at a residence registered in the appellant'sname. They attended to execute the warrant. Before entering the residence, they observed a car leaving the garage of the property.

Sergeant Smith stopped that car and told the driver, who was subsequently identified as the appellant, that he was being detained for atheft of hydro investigation pending execution of a search warrant at the home he had just left. He was advised of his right to counsel,but he was not permitted to call counsel at that time. At the time of the appellant's initial detention, the police took possession of his carkeys and garage door opener, which were then used to gain access to the residence for the purpose of executing the search warrant.

Upon entry into the home, the RCMP discovered a large marihuana grow operation with several documents linking the appellant with theresidence. When Sergeant Smith was advised of the preliminary results of the search, he immediately placed the appellant under arrestfor production of marihuana.

The arrest occurred approximately 25 minutes after the initial detention. [55] On appeal in Trieu, supra, the defence alleged a breach of s. 9 of the Charter, arguing that there were no reasonable grounds forthe initial detention of the appellant and, even if there were, that detention became unlawful given the unreasonable passage of timebetween the detention and arrest. It was argued that the detention had turned into a de facto arrest at a time when there were noreasonable grounds to suspect that the appellant had committed the offence under investigation. These issues had not been argued attrial.

The Court of Appeal was satisfied that there was a sufficient evidentiary basis before them to permit them to arrive at their owndecision on the questions now being raised. [56] Speaking for the court in Trieu, supra, Prowse J.A. concluded that the evidence did not support the defence position that theappellant was detained only as a result of an "automatic and indiscriminate policy whereby mere presence for any length of time at ornear the premises triggered automatic detention or arrest" without regard for any other circumstances. (para. 65) The actualcircumstances gave rise to an objectively reasonable suspicion that the appellant was involved in the criminal offence of theft ofelectricity in the residence.

He had been seen driving a car out of the garage for the residence. When Sergeant Smith stopped thevehicle, he obtained the driver's licence which bore the name of the homeowner, Trieu. The address on the licence coincided with theaddress of the residence named in the search warrant. [57] Defence counsel's alternative submission was that the original investigative detention, assuming it was justified, became arbitrarywhen the appellant was detained for approximately 25 minutes "pending the execution of the search warrant." Madam Justice Prowsesummarized the defence position, "In effect, Mr.

Trieu says that his further detention pending execution of the search warrant amountedto a de facto arrest." (para.7) [58] On this de facto arrest issue, Madam Justice Prowse referred to the Court of Appeal's decision in R. v. Greaves, 2004 BCCA484. In this latter case, 40 minutes had elapsed between the appellant's original detention (during which time he was in handcuffs) andhis arrest.

The Court of Appeal examined the reasons for the delay and concluded that the extended detention was justified because ofthe appellant's own disruptive behaviour. [59] In Trieu, supra, the Prowse J.A. conducted a similar analysis of the circumstances surrounding the detention of Trieu andconcluded that the 25-minute delay between detention and arrest did not convert the lawful detention of Trieu into a de facto arrest. Atparagraph 73: 73. In the result, primarily for the reasons relied on by the Crown, I am not persuaded, on the requisite balance of probabilities, thatthe continued detention of Mr.

Trieu gave rise to an arbitrary detention in these circumstances, or that it amounted to a de facto arrest. Inmy view, the further relatively short period of detention was necessary to ensure that the police were not placed in jeopardy should Mr.Trieu alert any occupants of either his own or the other residences of the impending searches. It is also significant that his furtherdetention was only until the police safely entered and secured the residence. At that point, given their discovery of an active growoperation, Mr. Trieu was arrested. (

c) The Power of Arrest [60] Section 495(1) of the Criminal Code authorizes an "arrest without warrant" when a police officer has reasonable grounds tobelieve that a suspect is committing or has committed or is about to commit an offence. The applicable principles are follows: i. In order for an arrest to be lawful, the arresting officer must subjectively believe that he has reasonable grounds to arrest. Thosegrounds must in addition be justifiable from an objective point of view.

A reasonable person "standing in the shoes of the police officer"must be able to conclude that there were, in fact, reasonable grounds for the arrest. Skill and knowledge of the arresting officer must betaken into account. R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 (S.C.C.) at page 249; R. v. To, [1998] B.C.J. No. 1323(B.C.C.A.) at para. 11; R. v. Juan, 2007 BCCA 351 at paras. 18-19. ii. The term "reasonable grounds" has been equated with "credibly-based probability." The police need not demonstrate anythingmore than this.

Specifically, they are not required to establish a prima facie case for conviction before making an arrest. Hunter v.Southam, (SCC), [1984] 2 S.C.R. 145 at page 167; R. v. Grunwald, [1991] B.C.J. No. 235. iii. The onus is upon the Crown to establish that a warrantless arrest of an accused was in accord with the requirements of s. 495(1) ofthe Code. A warrantless arrest that does not comply with s. 495(1) is an unlawful arrest. If the unlawful arrest is found to be"capricious, despotic, or unjustified," it will also be an "arbitrary" detention and contrary to s. 9 of the Charter. R. v.

Whitaker, 2008BCCA 174 , [2008] B.C.J. No. 725 (B.C.C.A.). iv. Finally, a search conducted pursuant to an unlawful arrest is an unreasonable search and contrary to s. 8 of the Charter. [61] I have been provided with numerous authorities dealing with the lawfulness of the arrest of an individual found in or around aresidence during the execution of a search warrant. These authorities suggest that police officers executing a search warrant at aresidence may well be justified in detaining persons found in the residence.

Their presence on the property will usually be a sufficientbasis for reasonably suspecting that they may be implicated in the offence covered by the search warrant. Such persons may be lawfullydetained for a short period of time, but for limited purposes: to obtain their identity, to prevent them from interfering with a search ordestroying or hiding evidence, to determine if there is any evidence in the residence to connect them to the offences under investigation. [62] Police officers executing a search warrant generally are not justified in arresting all persons present in the residence at the time of

the search. Mere presence on the property by itself does not constitute reasonable grounds for arrest. There must be additional factsgiving rise to the reasonable belief that such persons are parties to the offence covered by the search warrant. Mere suspicion that this isso is not sufficient to justify an arrest. Whitaker, supra, at para. 60. [63] In Whitaker, supra, the police attended at a residence to assist in the execution of several search warrants for the property. Theywere told by a supervising officer that everyone found in the property was to be arrested.

One constable saw four men standing in frontof the garage and a fifth man, Whitaker, coming out of the garage. He arrested all five men for trafficking in a controlled substance. The accused, Whitaker, was unknown to the constable at the time. His identity and his link to the residence were only established afterthe arrest.

Whitaker and the other four men standing outside the garage were arrested "because they were there." (para. 55) The Courtof Appeal concluded that the arrest of Whitaker was unlawful, there being no grounds to support an objectively reasonable belief that hewas connected to any illegal activities going on in the residence or outbuildings. Still, the application to exclude evidence was denied. See also R. v. Bui and Do, 2006 BCSC 832 , [2006] B.C.J. No. 1219 (B.C.P.C.); R. v. Nguyen, Abbotsford Registry Number663317-1, September 24, 2008, (B.C.P.C.); and R. v.

Hoeree, Surrey Registry Number 16112-2-C, January 26, 2009, (B.C.P.C.). [64] There are also a number of decisions upholding arrests of persons found in residences that were the subjects of search warrants. In each instance, there were facts known to the police officers that gave rise to a reasonable inference that the arrestees had some measureof control over the residence and its content. For example: In R. v. Le, 2009 BCCA 14, the police observed the garage door open and a van drive out just prior to executing the search warrant. Thepolice arrested the driver of the van.

The trial judge found that the police reasonably inferred that the driver had some control over thehome. The arrest was found to be lawful. The Court of Appeal upheld this finding. In R. v. Lam, 2009 BCPC 56 , 2009 BCPC 0056 (B.C.P.C.), the police had information from a neighbour that the onlyindividual associated with the residence was an Asian male. Just prior to executing the search warrant, the police observed the accused,an Asian male, exit the residence from the front door to shovel snow on the front sidewalk. The police arrested the accused prior toentering the residence.

The trial judge found that the facts supported a reasonable conclusion that the accused was exercising controlover the property. The arrest was therefore lawful. [65] There are some circumstances in which the arrest of all persons found in a residence may be justified. This may occur where thepolice have reasonable grounds to believe that a premise is being used as a drug house where people go to purchase their drugs or wherethey have reasonable grounds to believe that a premise is being used solely for the purpose of growing marihuana and not as a residence.

In these circumstances, it may be reasonable to infer that all persons in the residence are likely parties to the illegal activities occurringwithin, there being no other obvious reason for their presence. Some of these decisions are discussed in Whitaker, supra, at paragraphs56 to 59, see the following. In R. v. Le, 2001 BCCA 658, the police had reasonable grounds to believe that a "brisk drug trafficking operation" was being conductedat the residence. Just prior to the execution of a search warrant, the police observed a dozen people coming and going quickly from thepremises.

Madam Justice Rowles concluded that the police had grounds to arrest everyone whom they found in the premises.

Atparagraphs 32 and 33, she concluded: [32] Taking into account the information the police had to which I have already referred and the nature of the area in which thepremise was located, it would also be reasonable to infer that the premises were probably not being used as a residence but as a placefrom which those in the premises were able to conduct a drug dealing business. [33] In the circumstances I have just described, I am of the opinion that the police did have reasonable grounds to arrest the appellant,and could therefore search him as an incident of his lawful arrest. In R. v.

Le, 2006 BCCA 658, the police believed, based on surveillance, that no one lived in the target residence, that the residencecontained a marihuana grow-op, and that someone attended the residence every few days for the purposes of attending to the grow-op. The Court of Appeal concluded that the police had both subjective and objective grounds for their belief that anyone leaving the housewas arrestable. (paras. 21-29) In R. v.

Shokar, 2006 BCSC 770, the police believed that a building held a large marihuana grow-op and that "anyone who might comeout of the building was part and parcel of that illegal grow-op." Hence, anyone found in or coming from the building was arrestable.(para. 22) The trial judge was satisfied that there were objective grounds to support this belief: The building was isolated; it was notresidential in design; during surveillance, no activity had been observed of the building; there were no vehicles in the vicinity suggestiveof visitors attending at the building for innocent purposes.

In these circumstances, the court was satisfied that the arrest of the accused,who had been seen leaving the residence, was lawful. At para. 31: [31] In short, I conclude there were reasonable grounds to conclude that there was a reasonable probability that anyone seen leavingthe building that morning not only had knowledge of what was going on inside, but had been in the building in order to assist in theillegal operation and was therefore guilty of an indictable offence. 3. Analysis and Conclusions Re Alleged Charter Breaches (

a) Was the Investigative Detention Lawful? [66] The investigative detention of the accused was lawful and not arbitrary. There were ample grounds to justify this detention: i. The police had reasonable grounds to believe that a marihuana grow-op was inside the residence. This was established by theissuance of a search warrant to search the residence for this purpose. ii. The presence of the accused inside this residence and his departure from the residence via the rear door of the residence in apparentdefiance of the police direction that the occupants come to the front door gave rise to a reasonable suspicion that the accused might have

been implicated in the illegal grow-op inside the residence. I note here that, at the time of the accused's detention, neither D/C Mah nor Constable Wong were aware of the fact that the front door was barricaded shut, such that the accused could only come out of the rear door. [ 67 ] Although I will discuss this issue further when dealing with the grounds for arrest, I pause to note that, in my view, D/C Mah's belief that the residence was uninhabited and was being used solely for the purpose of housing the grow-op was a reasonable one in this case.

This belief and the facts underlying it provide a further justification for the investigative detention of the accused. D/C Mah's belief that anyone present at the uninhabited residence was likely there for the purpose of tending to the grow-op was also a reasonable inference to draw in these circumstances. (

b) Was the Investigative Detention a De Facto Arrest? [ 68 ] In this case, some 42 minutes elapsed from the time that the accused was detained until the time of his arrest. This is not typical of the type of detention contemplated in Mann , supra , that being a detention that is "brief in duration". (Iacobucci J. at para.45) In contrast to what occurred in the Greaves case, supra , the accused in the present case did nothing to trigger such a lengthy detention.

These circumstances require some inquiry into the events surrounding the detention, including the "extent to which the interference with liberty was necessary to perform the officer's duty." [ 69 ] I begin by noting that the "nature and extent" of the interference with the accused's liberty was significant in this case. In addition to being detained for some 42 minutes, the accused was handcuffed behind his back and locked in the police wagon throughout the entire detention.

This is so notwithstanding the fact that he was compliant throughout. [ 70 ] As to whether this interference with the accused's liberty was justifiable in this case, it is appropriate to consider the surrounding circumstances and, in particular, the nature of the duties being performed by Constable Wong. The detention of any suspects found in or seen leaving the residence during the execution of the warrant was assigned to Constable Wong. He was initially advised that the police did not think that there was anyone in the residence.

In fact, two suspects came out of the residence. [ 71 ] He was responsible for taking both of those parties into custody. The safety of his fellow officers was of concern to him. It would have been difficult for him to adequately maintain control over both of these suspects without using handcuffs.

Moreover, after he had taken the two suspects into custody he was required to attend at the front of the residence to assume containment duty in that location while the rest of the entry team went inside to clear the residence. [ 72 ] I accept Constable Wong's explanation that he placed both suspects into the wagon because he could not have safely controlled both suspects at the same time that he was performing his containment duties at the front of the residence.

In these circumstances, I am satisfied that the handcuffing of the accused and his fellow suspect and the decision to lock them in the police wagon while the constable attended to his other duties was a necessary and reasonable step in the circumstances. [ 73 ] In my view, the real difficulty arises from the fact that the detention was of such a long duration. On this issue, I note the original intention of the police, as expressed by D/C Mah.

It was his intention that any persons found in or seen leaving the residence would be detained only while the police gained entry into the residence and ensured that it was clear of all other occupants. Once the residence had been cleared and confirmation was obtained that there was an illegal grow-op in the residence, any suspects who had been taken into custody would then be arrested. [ 74 ] In my view, the detention of any suspects while the police perform the above operations is reasonable in a case involving the execution of a search warrant.

It is fair to say that the task of entering and clearing a residence of occupants, under the authority of a search warrant, is likely to result in a longer period of detention for any suspects taken into custody than one might expect in other circumstances, such as a simple street check. [ 75 ] In the present case, the task of clearing the residence was actually complicated by the condition of the interior. Movement throughout the house was slow.

It was impeded by the condition of the residence, including blocked hallways and stairs, dangerous wiring, and holes in the floor. [ 76 ] In assessing the overall reasonableness of the detention in this case, including the extent to which a longer-than-usual detention was necessary, I am also mindful of the following facts. Firstly, I accept that it was not the intention of the officers to arrest the accused and his fellow suspect, Thomas, immediately upon taking them into custody. In other words, this was not an arrest disguised as a detention as seemed to be the case in Latimer , supra .

Secondly, during the course of the detention, no officer attempted to extract any evidence from the accused by way of interrogation or otherwise. Indeed, the accused was not even searched prior to being locked in the police wagon. Finally, as soon as the police cleared the residence and confirmed the presence of a grow-op, these facts were broadcast to Constable Wong.

He immediately attended to the arrest of the accused. [ 77 ] A consideration of all of the circumstances discussed above has led me to the conclusion that the 42-minute detention of the accused during which time he was handcuffed and locked in the police wagon was neither unlawful nor arbitrary. I am also satisfied that the 42-minute delay between the detention of the accused and his eventual arrest did not convert the lawful detention of the accused into a de facto arrest. (

c) Was the Arrest of the Accused Lawful? [ 78 ] The police had reasonable grounds to believe that a marihuana grow-op was inside the residence. Again, this fact was established by the issuance of a warrant to search the residence for this purpose. [ 79 ] I note D/C Mah's expressed desire to enter the residence and confirm the presence of a grow-op before making any arrests.

While there might be practical reasons for taking such an approach in the field, I am of the view that, with a search warrant in hand, it was not necessary for the police to enter the residence and visually confirm the existence of a grow-op before arresting any person whom they reasonably believed was a party to this illegal enterprise.

[ 80 ] The more important question is whether there were reasonable grounds to believe that the accused was a party to the illegal production operation. More specifically, were there reasonable grounds to believe that the accused not only knew about the marihuana grow operation, but also had some measure of control over the operation. [ 81 ] On this issue, I am satisfied that the focus should be on the facts known to the supervising officer, D/C Mah.

He was the officer who had instructed Constable Wong to arrest anyone found in or seen leaving the residence once it was confirmed that a marihuana grow-op had been located. [ 82 ] Even prior to attending to execute the search warrant, D/C Mah believed that the target residence was uninhabited. This belief led him to conclude that the residence was likely being used solely to house the marihuana grow-op that was the subject of the search warrant and that anyone who did attend at this residence likely did so only for the purpose of tending to the marihuana grow-op inside.

In my view, these beliefs were objectively supported by the following facts: i. The target residence was in a state of disrepair. It was worn and uncared for. The windows were all covered with drapes or sheets. ii. The lawns were brown and unattended. iii. There were no items in the yards (patio furniture, garden furniture, or children's toys) to suggest that anyone lived in the residence. iv. During surveillance, no activity had ever been seen in or about the residence.

During his own drive-by on the day prior to the execution of the warrant, D/C Mah saw no activity at the residence. [ 83 ] The photographs of the exterior of this residence were filed as exhibits. These photographs confirmed the very shoddy condition of the residence and its yards in comparison to the neighbouring homes.

In my view, the residence depicted in the photographs appears to be an abandoned and uncared-for residence. [ 84 ] In the circumstances, it was reasonable to infer that anyone found inside this apparently uninhabited residence was probably there to care for the marihuana grow-op believed to be inside. In my view, this was an objectively reasonable belief. Obviously, a person attending to care for the grow-op has knowledge of and some measure of control over the operation.

Such a person is arrestable. [ 85 ] In very similar circumstances, the Court of Appeal in the 2006 decision in Le ( supra) concluded that anyone who was seen leaving an uninhabited residence containing a marihuana grow-op "was arrestable." In Shokar , supra , Mr.

Justice Joyce came to the same conclusion: a person seen leaving an isolated non-residential structure containing a large grow-op where no activity had been observed was arrestable as a likely party to the operation. [ 86 ] In conclusion, I am satisfied that the accused in the present case was subject to lawful arrest both at the time that he was actually arrested and also at the time that he was initially detained, that being when he was observed leaving this apparently uninhabited residence that the police believed, on the strength of the search warrant, contained a marihuana grow-op. [ 87 ] The grounds for a lawful arrest of the accused were only strengthened when D/C Mah entered the residence and discovered that it was effectively consumed by the marihuana grow-op and was otherwise uninhabitable.

Indeed, he found no evidence to indicate that anyone was, in fact, living in the residence. The arrest of the accused subsequent to this initial cursory search by D/C Mah was clearly lawful, there being ample reasonable grounds for the following inferences: (

i) the accused must have known about the marihuana operation in the residence that he had just left and (ii) he was most likely in the residence for the purpose of caring for the marihuana plants found within. [ 88 ] In so far as the arrest of the accused was lawful, the search of the accused incidental to the arrest was also lawful. (d) S. 24(2) and the SS. 10(

a) and (

b) Breaches [ 89 ] When Constable Wong handcuffed the accused and placed him into the police wagon, he failed to advise the accused of the reason for his detention or his right to counsel. When he subsequently arrested the accused 42 minutes later, the constable did advise the accused of the reasons for his arrest and of his right to counsel; however, the accused was not permitted access to counsel for some five- and-a-half hours thereafter. [ 90 ] These breaches of the accused's rights under s. 10(

a) and (

b) of the Charter were temporally connected to the discovery of the key in his pocket and the development of the booking sheet with photo on which the Crown purports to establish the identity of the accused. An analysis under s. 24(2) of the Charter is therefore warranted. [ 91 ] These s. 10 breaches were serious and flagrant. No explanation was forthcoming other than the fact that Constable Wong was woefully inattentive to his obligations under s. 10. On the other hand, there were no other breaches of the accused's Charter rights.

Hence, it could not be said that there was in this case a pattern of disrespect for the accused's constitutional rights. [ 92 ] The impact of the Charter breaches on the accused was, in my view, minimal. One might reasonably infer that the accused was under some stress when he was locked in the police wagon without being told the reason for his detention and when he was told of his right to counsel, but given no opportunity to exercise that right.

However, no attempt was made to extract incriminating evidence from him by way of interrogation or otherwise during the initial detention or while he waited for his opportunity to call his lawyer. [ 93 ] In the present case, there is a strong societal interest in the adjudication of the case on its merits. The offences are serious. The evidence in issue, that being the key found in the accused's possession and the identification evidence, are both reliable pieces of evidence that are critical to the Crown's case.

The s. 10 breaches did nothing to undermine the reliability of this evidence. [ 94 ] Balancing all of the above considerations, I am satisfied that admission of the above-noted evidence on the trial would not bring the administration of justice into disrepute. The application for exclusion of evidence is denied.

II. REASONS FOR JUDGMENT ON THE TRIAL 1. Identification [95] No officer was able to identify the accused in court. Constable Wong did describe the man whom he arrested. That manidentified himself by the name of Joshua Chaif-Gust, with a date of birth of November 27th, 1990. He was a white male withpockmarked skin, blond hair, weighing 140 pounds, and approximately five-foot-eight to six-feet tall. This very generic description fitsthe accused before me. [96] Constable Stewart, the booking officer, took custody of a male at the jail on the offence date of July 23rd, 2009.

That maleidentified himself to Constable Stewart by the same name, Joshua Chaif-Gust, and provided the same date of birth, November 27th,1990. I am satisfied that the male who was arrested by Constable Wong was the same male who was booked in by Constable Stewart. Constable Stewart took a photograph of this male which appears on the booking sheet. It is an excellent photograph. It is clearly aphotograph of the accused before me. I am satisfied beyond a reasonable doubt that the accused is the man who was arrested byConstable Wong at the McGill Street residence on July 23rd, 2009. 2.

Knowledge and Control [97] The VPD attended at the above-noted McGill Street residence to execute a search warrant on July 23rd, 2009. The evidencerelating to the condition of the residence is described above. I will not repeat that evidence here. Suffice it to say that the house was arundown structure that was even a greater mess on the inside. [98] Once inside the residence, the police located a marihuana grow-op that appeared to consume most of the residence. In the growrooms located on the main floor, in the attic, and in the basement, the police discovered 819 marihuana plants.

Depending on how it wassold (gram, ounce, or pound), the value of the crop was between $276,372 and $696,546. [99] Both the front door and the basement-level rear door of the residence were barricaded shut. The only functioning door was theback door leading to the porch. [100] There were no signs inside the residence to suggest that anyone actually lived there. Again, the evidence in this regard has beennoted above.

Suffice it to say that there were no apparent sleeping quarters in the residence. [101] No personal items were found in the residence that might have connected any particular individual to the residence or the illegaloperation within. The fingerprints of the accused, Thomas, were found on pieces of equipment associated to the grow-op. Fingerprintsof the accused were not located anywhere in the residence. [102] However, the accused was observed leaving from the rear door of the residence when the police arrived to execute the searchwarrant. He was arrested and searched. He was in possession of two keys.

One of these keys was used by Constable Wong to lock theback door of the residence when the police departed. [103] In my view, there is no doubt that the accused must have known of the presence of the marihuana grow-op that occupied allthree floors of the residence and that gave off an odour that was so strong that D/C Mah told his team to put on their respirators beforethey entered the residence.

The real issue is whether the Crown has established beyond a reasonable doubt that the accused had anymeasure of control over the grow-op inside the residence. [104] I have been provided with numerous decisions dealing with the question of whether the Crown has proven the element of controlover a marihuana grow-op. While these cases have been instructive, I am of the view that this case must be decided based on theevidence that is before me. [105] In this case, given the condition of the residence, both outside and inside, I am satisfied beyond a reasonable doubt that no onewas actually living at the residence.

Its only purpose was to house the marihuana grow-op. [106] I am also satisfied beyond a reasonable doubt that, in the absence of any other explanation, the only reasonable inference to bedrawn from the accused's presence at this residence was that he was there to attend to the grow-op inside. I am mindful of the fact thathis fingerprints were not found in the residence and no other evidence was led to connect him to the residence. However, the fact is thatthe accused was in possession of a key to the residence.

His unexplained possession of this key is a strong indicator of control over thecontents of the residence. Given all of the circumstances, I am satisfied beyond a reasonable doubt that the accused had control of themarihuana grow-op inside the residence to which he had a key and that he was a party to this illegal operation. [107] I am also satisfied that there is no basis in the evidence that would allow me to surmise that the accused might possibly havebeen at this residence for some innocent purpose. Such an inference would be speculative at best; see R. v. Dillman, [1979] B.C.J.

No.1794 (B.C.C.A.) at para. 10: 10. I pause here to point out that it has been said on more than one occasion in discussing circumstantial evidence that there must besome evidentiary base for another rational conclusion – you cannot found another rational conclusion on possibilities. [108] See also R. v. Todd [2005] B.C.J. No 2652 (B.C.S.C. at para 22: 22. A trier of fact is not entitled to speculate on ‘conjectural possibilities’ not reasonably inferable from the evidence, and, more so,must not speculate on evidence not called. R. v. Noble (SCC), [1997] 1 S.C.R. 874 and R. v.

Wild (SCC), [1971] SCR 101 CONCLUSION

[ 109 ] I find the accused guilty on Count 1, possession of marihuana for the purposes of trafficking and Count 2, production of marihuana. The Crown has led no evidence to establish that the generator found in the attic was stolen. I find the accused not guilty on Count 3. [RULING ON VOIR DIRE AND REASONS FOR JUDGMENT CONCLUDED]