R. v. Taylor Date:, 2012 BCPC 470

Citation: R. v. Taylor Date: 20120309 2012 BCPC 0470 File No: 202725-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEREK CHARLES TAYLOR REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE J.O'C. WINGHAM Counsel for the Crown: K. Guest Counsel for the Defendant: J. Allingham Place of Hearing: Vancouver , B.C. Date of Hearing: March 9, 2012 Date of Judgment: March 9, 2012

[ 1 ] THE COURT: This is a ruling on a voir dire.

The accused is charged with multiple offences which include the production of methamphetamine, possession of methamphetamine for the purpose of trafficking and various counts relating to credit card and identification fraud. [ 2 ] At the beginning of the trial a voir dire was declared to determine whether a warrantless entry into the accused's residence at 8230 Manson Drive in Burnaby, British Columbia on April 4th, 2011, was contrary to s. 8 of the Canadian Charter of Rights and Freedoms . [ 3 ] The Crown says that the warrantless entry into the accused's residence was authorized by s. 11(7) of the Controlled Drugs and Substances Act or, in the alternative, pursuant to s. 487.11 of the Criminal Code , on the basis that at the time of the entry there were grounds for obtaining a search warrant but by reason of exigent circumstances, it would be impractical to obtain a warrant. [ 4 ] Counsel for Mr.

Taylor says that the conditions for obtaining a warrant to enter and search the residence did not exist and that if there were exigent circumstances, which he does not agree there were, those circumstances were created by police conduct and that, as a result, the warrantless entry was not authorized by either section.

Counsel for the accused also submits that the police could have obtained a warrant on the facts of this case. [ 5 ] The evidence on the voir dire consisted of a set of admissions, a brief of photographs and the evidence of Corporal Rettie of the RCMP. [ 6 ] Corporal Rettie was the officer in charge of a unit of the RCMP which investigates synthetic drug labs in British Columbia. He was the officer who made the decision to enter the accused's residence on April 4th, 2011.

His evidence as to the investigation which led to that decision was as follows. [ 7 ] On March 11th, 2011, he received information from the Abbotsford Police that a source had informed them that one Darryl Peterson was attending a residence in Burnaby to cook methamphetamine on a nightly basis. Corporal Rettie's unit took up surveillance of Mr. Peterson for several days. He described the surveillance as challenging. On one evening, March 25th, 2011, the police followed Mr. Peterson from the Surrey/Langley border into Burnaby.

They lost sight of him but then located the vehicle in which he had been a passenger parked in front of the accused's residence on Manson Drive in Burnaby. They also noted a black Eagle Talon parked in the driveway of that residence. They subsequently observed Mr. Peterson leave the residence and depart in the vehicle he arrived in. At that point, surveillance of Mr. Peterson was discontinued and the decision was made to focus on the residence at 8230 Manson Drive in Burnaby. [ 8 ] A check revealed that the residence was being rented.

A further check of police records indicated that police had received information in April 2009 that a Derek Taylor was cooking methamphetamine at the residence but no authorizations had been sought and that matter appears not to have been followed up. [ 9 ] The Burnaby RCMP had also received information on March 1st, 2011 that stolen property was being fenced from that residence. [ 10 ] More detailed, exhaustive checks were run on Derek Taylor. Corporal Rettie learned that Mr.

Taylor had been charged in Vancouver in relation to a methamphetamine lab but those charges were still outstanding. [ 11 ] The investigation then focused on the accused, Mr. Taylor. [ 12 ] Covert surveillance was undertaken of the residence. Corporal Rettie said that there were times he could hear voices from the residence and that on one occasion he heard a mechanical stirring sound coming from the rear basement door of the residence. He described it as being like a hand drill with a mixer attached, hitting the sides of a plastic bucket.

After about 10 minutes he left because a dog from the residence began barking at him and he was concerned he would be discovered. [ 13 ] Corporal Rettie observed the Eagle Talon in the driveway. Again, he checked and found it was registered to a numbered company from Lumby, British Columbia. The address was one where a significant synthetic drug lab had been previously discovered. The principal operator of the Talon was listed as one Brent Eddy. A check on Mr.

Eddy indicated that he was a Surrey firefighter who had had his identification and badge stolen and had reported he was the victim of identity theft. [ 14 ] On April 4th, 2011, Corporal Rettie was given the assistance of the RCMP's special surveillance team. One of Rettie's team members, Constable Hartnett [phonetic] rode along with the surveillance team and was in contact with Corporal Rettie by telephone. Hartnett observed two females leave the residence on Manson Drive in a silver Hyundai.

The Hyundai had a temporary insurance sticker on it which led Rettie to learn that the registered owner was one Kailey Anderson, who was a prohibited driver. Arrangements were made to have a marked police cruiser pull over the Hyundai to determine the status of the driver. When the Hyundai was pulled over, the driver initially lied about her identity but it was determined that she was Kailey Anderson. Her passenger was identified as Bertha Palladino [phonetic]. Ms.

Anderson was issued a promise to appear for prohibited driving and the vehicle was towed. [ 15 ] After 2 p.m., the two females were observed arriving at the Manson Drive address again, this time by taxi. Twenty minutes later, at 2:19 p.m., a male and a female were seen leaving the residence on Manson Drive and departing in the Eagle Talon. They were followed by Hartnett and a surveillance officer. Hartnett identified the driver as the accused, Derek Taylor. The female was the passenger. [ 16 ] The Eagle Talon was described as being driven in an aggressive manner, running red lights and speeding excessively.

Hartnett reported that the vehicle went to the GF Strong Rehabilitation Centre in Vancouver and that Taylor and the female went inside. Arrangements were made for a Vancouver police department officer to stop Taylor when he came out of the GF Strong Rehabilitation Centre.

[ 17 ] When Mr. Taylor came outside, he was stopped by the Vancouver police department officer. He identified himself to the officer as Brent Eddy and produced Mr. Eddy's driver's licence. When he was confronted, he admitted that he was Derek Taylor. He was arrested for possession of stolen property (the driver's licence), impersonation and uttering a false document. His arrest took place in the parking lot of GF Strong Rehabilitation Centre. The female, whom turned out to be Ms.

Palladino, whom he had gone into GF Strong with, was not seen again. [ 18 ] Corporal Rettie said that this caused him concern because Ms. Palladino had been at the residence on Manson Drive on two occasions and he believed that she might have witnessed the arrest. He testified that he had formed the opinion that he had grounds to apply for a search warrant of the residence at Manson Drive for possession of stolen property and forged documents. [ 19 ] Constable Rowe, a member of Corporal Rettie's team, had been tasked to prepare the information to obtain and he was updating it on a regular basis.

Corporal Rettie instructed Rowe to apply for a warrant for those offences and had Taylor transported to the Burnaby RCMP detachment. [ 20 ] Mr. Taylor arrived there at 5:54 p.m. and exercised his right to counsel. He then complained of chest pains and was transported to hospital.

Corporal Rettie instructed his three remaining team members to maintain surveillance of the Manson Drive residence and instructed them to stop and arrest anyone leaving the residence for possession of stolen property, possession of forged documents and impersonation. [ 21 ] At approximately 9 p.m., or shortly before that time, a male and a female emerged from the house on Manson Drive. They were carrying bags which they placed in a taxi. Members of Corporal Rettie's team arrested them. When Corporal Rettie arrived at the scene he parked a few houses away as he was not sure if the surveillance was still covert.

He saw that Constable Innes [phonetic] had a male in custody who had provided a driver's licence in a third party's name. When the male was confronted, he admitted that he was Michael James Brede. Corporal Rettie was aware that Mr. Brede was a suspect in a methamphetamine lab operation in Mission, British Columbia, from a few days earlier and that he had allegedly fled when police arrived. He was arrested for fraud, possession of stolen property and for production of a controlled substance which related to the Mission drug lab. [ 22 ] Corporal Rettie then heard Constable Westwick [phonetic] yell, "Gun".

He ran to where Constable Westwick was and was advised that Constable Westwick had found a handgun in one of the bags carried out to the taxi by the two individuals, the male and the female. The gun was loaded. Also in one of the bags was five pounds of a substance which Rettie believed could be methamphetamine and a smaller quantity, 250 grams, of a substance he believed was methamphetamine. Brede and the woman were also arrested for possession of the handgun and the suspected methamphetamine found in the bag.

The female was identified as Kailey Anderson. [ 23 ] Corporal Rettie testified that, at that point, he believed he had grounds to apply for a warrant to search the residence for drugs and weapons. He said, however, that he had a fear that the covert surveillance had been exposed and that there was a risk that someone who may be inside the residence might destroy evidence or escape. He said he was also concerned about the safety of himself and his fellow officers. He said there were lights on in the residence. He thought that Ms.

Palladino might have told the people at the residence of Taylor's arrest and that given the drugs and gun found in the bag, there was a good possibility that they were removing things from the residence because they feared police attendance. [ 24 ] Corporal Rettie made the decision to enter the premises, to secure the scene and to "clear it" for other people, to prevent any destruction of evidence and the escape of any person who might remain in the residence.

He believed he had grounds for a Controlled Drugs and Substances Act search warrant and called Constable Rowe, provided him with the new information and directed him to apply for a search warrant. Before entering the premises, Corporal Rettie asked for marked police cruisers for safety reasons. He said he wanted anyone who might be inside the residence to know that it was the police who were there, as he and his fellow officers, at that time, were in plainclothes. [ 25 ] He told his team that they were entering the residence to search for persons, not evidence.

He and two other officers entered the residence at 2136 hours, which was 29 minutes after Corporal Rettie arrived at the scene. [ 26 ] His evidence was that he and his team cleared the top floor in 30 to 60 seconds and the basement in 30 to 60 seconds and that, in total, they were in the residence for under two minutes. They looked in closets, under beds, in the shower and in any other place in which he believed a person might be able to hide. When he entered the basement he was overcome by the odour of solvent and chemicals. He observed chemicals, containers, acids and solvents.

Pictures of what he observed were taken later after a search warrant was executed. The photos showed a roomful of plastic buckets, laboratory type glass cooking vessels, tubing and chemicals, all in plain sight. Corporal Rettie said he believed he was entering a synthetic drug lab. He did not stop to examine anything.

He told his team, "Let's clear as soon as possible and get out." [ 27 ] Corporal Rettie testified that he was aware that he could have applied for a telewarrant but he did not believe that it was feasible in that case. [ 28 ] The issue for determination on this voir dire is whether the entry by Corporal Rettie and his team on April 4th, 2011, to the accused's residence was one which was authorized by s. 11(7) of the Controlled Drugs and Substances Act or s. 489.11 of the Criminal Code . [ 29 ] S. 11(7) of the Controlled Drugs and Substances Act provides: A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. [ 30 ] S. 487.11 of the Criminal Code contains a similar provision. [ 31 ] S. 11(7) of the Controlled Drugs and Substances Act was considered by the B.C.

Court of Appeal in R. v. McCormack , [2000] B.C.C.A. 57. In that case, police entered a residence without a warrant in circumstances where an unknown female drove by police who

were in the process of arresting the accused. The female's behaviour was such that it indicated she knew the accused, who wassuspected to have drugs in his residence. The police were concerned the female might destroy evidence in the accused's residence. Thepolice entering the residence were instructed to search for people only and then to leave the residence immediately.

The trial judgefound that the entry was one which was authorized by s. 11(7) of the Controlled Drugs and Substances Act and that, therefore, there hadbeen no breach of the accused's rights under s. 8 of the Charter. [32] At paragraph 17 the Court of Appeal reiterated that there are two conditions for a warrantless search to fall within s. 11(7).

First, the conditions ordinarily required to obtain a search warrant must be present and second, exigent circumstances must exist whichmake it impracticable to obtain a search warrant. [33] The court in McCormack referred to the decision of the Supreme Court of Canada in R. v. Grant, [1993] 24 C.R. (4th) page 1,for the test for exigent circumstances. At paragraphs 19 to 20, Madam Justice Saunders, in the McCormack case stated: The term "exigent circumstances" was discussed in R. v. Grant'[citation provided].

In that case, the Supreme Court of Canada held thatsection 10 of the Narcotics Control Act, which authorized a warrantless search, must be read down. Writing for the court, Sopinka J. setthe standard now found in s. 11(7) at p. 18: ...I have concluded that warrantless searches pursuant to s. 10 of the NCA must be limited to situations in which exigent circumstancesrender obtaining a warrant impracticable.

At pp. 19-20 Sopinka J. then discussed the test for exigent circumstances: Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance ofthe evidence if the search or seizure is delayed. While the fact that the evidence sought is believed to be present on a motor vehicle,water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for suchconveyances. [34] The court upheld the trial judge's ruling in McCormack that exigent circumstances existed. [35] In R. v.

Phommaviset [2003] B.C.S.C. 81, the court considered a case with facts not dissimilar to the facts in this case. Information had been received that a marihuana grow operation was inside the accused's residence. Three police officers were sent tosurveil the residence. They knew that their supervisor was preparing an information to obtain a search warrant but not the details of theinformation. They observed three males exit the residence holding six large garbage bags. They placed them in a van and were about todrive away when the police blocked them in the driveway and arrested them.

The police found keys to the residence on one of theaccused and used them to enter the premises. The evidence from the officers was that they wanted to look for other occupants toeliminate any potential threat to officers and to prevent the loss or destruction of evidence. [36] The officers entered the residence and conducted a cursory search for persons. They did not open drawers or handle any items.

They did not unlock a door which was locked from the outside, which they suspected had a grow room behind it. [37] Madam Justice Dillon determined that, in that case, the conditions required for a search warrant existed at the time the entrywas made. With respect to the issue of whether exigent circumstances existed, the court stated at paragraphs 17 and 18: "Exigent circumstances" exist if immediate action is required for the safety of the police or if there is an immediate danger of the loss,removal, destruction or disappearance of the evidence if the search is delayed (R. v. Grant, R. v. Feeney, R. v.

McCormack, R. v Duongand Tran). Exigent circumstances involve the subjective belief of the police as well as an objective basis for the belief (R. v.McCormack, R. v. Duong and Tran). The exigent circumstances asserted by police must be objectively reasonable. In R. v. McCormack,exigent circumstances were established because the police had a reasonable basis to believe that a female seen in an automobile was theaccused’s girlfriend, that she had access to his apartment, and that there was evidence in the apartment that could be destroyed.

In R. v.Feeney, however, exigent circumstances did not exist when there was no apparent jeopardy to safety of the police and when police hadno knowledge of evidence at the premises but only suspected or had a hunch that evidence might be found. [38] Paragraph 18: In this case, there were not exigent circumstances arising from a concern for safety of the police or the public. Although ConstableLeeson testified that weapons are often found at marijuana grow operations, he did not suggest that he believed that weapons werepresent at 13380 67A Avenue.

If any safety concerns existed, the officers falling back away from the house and maintaining a watchover the premises could have met them. With respect to a concern for the destruction of evidence, it was reasonable to assume that therewould be documents and other evidence at the location based upon the information from the informant and the observation of thegarbage bags.

It was also reasonable to assume that there could be others in the house when there was no information on the number ofsuspects, the element of surprise was gone, and the officer had been unable to determine that there were no others in the house. As in R.v. Duong and Tran, Constable Leeson’s expectation of documentary evidence to link the accused or others to the residence and to thegrow operation was realistic and not just based upon a hunch or suspicion given all of the circumstances.

There were exigentcircumstances arising from concern for the destruction of evidence. [39] The court concluded that the entry was one which was justified under s. 11(7) of the Controlled Drugs and Substances Act anddetermined there had been no Charter breach. [40] Counsel for the accused in this case has referred to three cases, R. v. Larson [2011] B.C.J. No. 2123, B.C.C.A., R. v. Mann 2003BCSC 1725 , [2003] B.C.J. No. 2603 B.C.S.C., and R. v. King [2006] B.C.J.

No. 1407, Provincial Court. [41] In Larson, the accused was found swimming in a dangerous area and was suspected to be suffering from a drug inducedparanoia. He told police two men had invaded his home. Police attended the home and did not note any signs of forced entry or a crimebeing committed. The police entered the home and did not detect any signs of movement. They searched the home and found a

marihuana grow operation in the basement. The court determined that there were no exigent circumstances in that case. That there was no objective basis for a belief that the home invaders were still in the house. At paragraphs 44 to 46 the court said: It is difficult to understand how the search could have been based on such considerations. There does not appear to be any objective basis for their belief that people might remain in the premises. Some two hours had passed between the latest possible time for the home invasion and the moment the police entered the house. Mr.

Larson had not suggested that the home invaders had expressed an intent to become an occupying force in his home. Rather, he claimed that they were after him personally. The police did have a suspicion that Mr. Larson had a marihuana grow operation at his home, and this might have been a plausible motive for people to invade his home. It is entirely unlikely, however, that any invaders would have remained in the home for two hours, particularly given that Mr. Larson would have had knowledge of their entry into the premises, and would have had escaped them.

The unlikelihood of the invaders remaining in the home was heightened by the fact that the police did not detect any movement, noise, or disturbance in the home when they waited outside, when they peered in the windows, and when they first entered through an unlocked door. The possibility that there were people in the home at that point was very remote. No basis for the suspicion that people were holed up inside was put forward, other than the fact that Mr.

Larson had said that he did not know whether the invaders had remained at his premises or not. [ 42 ] In my view, the facts in Larson are clearly distinguishable from those in the case at bar. There was a two hour delay in Larson and the police did not detect any movement, noise or disturbance in the home. In this case, the entry was 29 minutes after the arrest and the location of the suspected drugs and loaded handgun. Various people had been coming and going from the residence at different times of the day and there were lights on in the residence.

There was an objective basis for the belief that there might be someone still in the residence. [ 43 ] In R. v. Mann , police responded to a 9-1-1 call concerning a break and enter. Police arrested a suspect in a van and saw another escape from the residence. The accused, whose residence it was, told police that the only persons left at the residence was himself and his father and no further police assistance was required. Police received information that there was a marihuana grow operation in the residence and one officer had noticed the smell of marihuana at the front of the house.

They charged Mann with cultivation, went into the house and when they found the basement locked they broke a window to gain entry. A marihuana grow operation was found in the basement. The court found that there were no exigent circumstances and on the facts of the case, there was no reasonable prospect that, as the police claimed, there were further suspects in the break and enter in the house. This case, too, is distinguishable, in my view, on the facts from this case. [ 44 ] In R. v.

King , the court found that the police had themselves created the exigent circumstances which they relied on to enter the accused's residence. The court found there was an absence of good faith on the part of the police and that there were clear alternatives available to the police that did not include a Charter breach. [ 45 ] The evidence in each case must be considered to determine if the conditions for a warrantless entry falls within the category authorized by s. 11(7) of the Controlled Drugs and Substances Act or s. 487.11 of the Code .

If the conditions required to obtain a search warrant exist and the existence of exigent circumstances must be considered both subjectively, i.e., did the police have that belief and objectively, i.e., was the belief reasonable. [ 46 ] In relation to the existence of conditions required for a search warrant, in my view, the evidence establishes that at the time Corporal Rettie made the decision to enter the residence, the conditions existed for a search warrant. He had information about a person, Mr. Peterson, who was said to be going to a residence in Burnaby to cook meth.

Surveillance of that person led to the accused's residence on Manson Drive. That residence was suspected to have had a meth lab in 2009 and the cook was said to be Taylor. Taylor had outstanding charges in Vancouver for similar offences. A vehicle, the Eagle Talon, parked in the driveway, was registered to a numbered company which was associated to a methamphetamine lab in Lumby, British Columbia. Persons coming and going from the residence, a female and Taylor, used false identification when stopped by police. Taylor was in the residence.

A suspect who had fled a methamphetamine lab in Mission, British Columbia a few days before was arrested with a female coming out of the residence. They had in their possession bags which contained a loaded handgun and a large quantity of what was suspected to be methamphetamine. [ 47 ] I conclude that the first part of the test under s. 11(7) of the Controlled Drugs and Substances Act has been satisfied.

The conditions required to obtain a search warrant were present at the time that Corporal Rettie made his decision to enter the premises. [ 48 ] The second part of the test is whether there were exigent circumstances which made it impracticable to obtain a search warrant. As stated, there is both a subjective and an objective component to that analysis. Did Corporal Rettie have a subjective belief and if so, was that belief objectively reasonable? [ 49 ] Corporal Rettie's evidence was that he had recently arrived at the scene and was dealing with Mr. Brede. He was about two houses away from the arrest scene.

He heard Constable Westwick yell, "Gun", and he ran to where Constable Westwick was, which was right in front of the accused's residence. He believed that the covert nature of the surveillance had been blown. He said there were lights on in the residence and he believed that there was a risk that someone in the residence might destroy evidence or escape. He also had a concern for officer safety, given that a loaded handgun had been found.

The fact that suspected drugs and the gun were found in the bags caused him to believe that there was a good possibility that things were being moved from the residence because of fear police might attend. [ 50 ] Corporal Rettie's evidence was that the entry to the residence was for the sole purpose of clearing it for other people to prevent escape, to prevent any destruction of evidence and for officer safety. He called for uniformed officers in marked police cars to attend and then entered the premises. He and his team were in the residence for a maximum of two minutes. All they did was search for persons.

The evidence of a drug lab was overwhelming. They could not have helped but notice it. [ 51 ] I am satisfied that Corporal Rettie had a subjective belief that exigent circumstances existed which made it impracticable to

apply for a search warrant. His evidence was that he instructed Constable Rowe to apply for a Controlled Drugs and Substances Act warrant once the gun and suspected drugs were found but that he did not believe he had the time to wait for a warrant, even a telewarrant to be issued. [ 52 ] I am also of the view that Corporal Rettie's belief was objectively reasonable. While there might be some issue that the risk to officer safety had diminished somewhat during the passage of 29 minutes, that risk was still present.

The concern that someone else might be in the residence and could destroy evidence was reasonable, given the facts that people had been coming and going from the residence throughout the day, that two people were just arrested coming out of the residence with a large quantity of suspected drugs and a handgun and that there were lights on in the residence. [ 53 ] I conclude that the second part of the test under s. 11(7) of the Controlled Drugs and Substances Act has also been met and that the warrantless entry of the accused's residence was one which was authorized under s. 11(7) of the Controlled Drugs and Substances Act . [ 54 ] The evidence on the voir dire will be evidence on the trial proper.

Exhibits A, B and C will be Exhibits 1, 2 and 3. (RULING ON VOIR DIRE CONCLUDED)