R. v. Bugaci et al. Date:, 2013 BCPC 290

Citation: R. v. Bugaci et al. Date: 20130913 2013 BCPC 0290 File No: 217418-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ZEQIR BUGACI, ROLAND BUGACI, AND RODOLF BUGACI RULING ON VOIR DIRE EXCERPT FROM PROCEEDINGS (RE GRANTING OF SEARCH WARRANT OF THE HONOURABLE JUDGE W. KITCHEN Counsel for the Crown: H. Pineo Counsel for the Accused Zeqir Bugaci : R. Mansoori-Dara Counsel for the Accused Roland Bugaci : R. Basra Counsel for the Accused Rodolf Bugaci : J. Narwal Place of Hearing: Vancouver , B.C. Date of Hearing: September 13, 2013 Date of Judgment: September 13, 2013

[ 1 ] THE COURT: We are continuing with the charge before the three accused that on August 2nd, 2012, they possessed marihuana for the purpose of trafficking. We are at the voir dire stage. I have previously concluded in this matter that it is appropriate for the court to inquire into certain Charter issues concerning the charge. In particular, relevant to this voir dire, I have concluded that s. 8 search issues may be raised by the defence.

I have further concluded that the defence may challenge the validity of the search warrant as a result of the execution of which these charges were laid. [ 2 ] The defence has been permitted to cross-examine the affiant to the ITO and another witness - the ITO, of course, that resulted in issuing of the search warrant. For consideration at this time is whether the authorizing judge or justice of the peace could have granted the search warrant based on reliable evidence in the record before them as amplified on this review.

The defence has the onus of rebutting the presumption that the authorizing judge could have granted the authorization. [ 3 ] The Information to Obtain the warrant asserts in a conclusory statement that the smell of marihuana was determined to have originated from the premises at 7203 Broadway Avenue in Burnaby and the search warrant should issue to search those premises.

I have concluded that this inquiry must examine the rest of the Information to Obtain to determine whether that conclusory statement is justified. [ 4 ] The Information to Obtain the warrant deals primarily with the investigations of Constable Lee of the RCMP from July 27th through August 1st, 2012.

There are some investigations by other officers assisting Constable Lee that were related by Constable Lee and the evidence of Constable Lee in the Information to Obtain must be looked to in understanding their investigations, also. [ 5 ] In examining the Information to Obtain the warrant to determine whether the conclusory statement is justified, there are several statements by Constable Lee where he makes observations concerning the direction of the wind. The majority of these observations relate to winds he concluded were from the west or from the east.

Another observation concerned a wind from the southeast and there was another concerning wind from the west. [ 6 ] The reader of the Information to Obtain must take these wind observations and, with some understanding of the geography of the area described by Constable Lee, determine if the smell of marihuana on certain winds detected in certain locations justified the conclusory statement that marihuana was determined to be in the premises at 7203 Broadway. [ 7 ] When cross-examined as to the meaning of "from the north," Constable Lee asserted that by that, he meant the wind was northbound or moving from south to north.

It was clear that the bewildered cross-examiner, Mr. Mansoori, thought that Constable Lee must be mistaken or confused or that he himself was confused. The matter was pursued at length by Mr. Mansoori and it was confirmed by Constable Lee without any equivocation or doubt that this was exactly what he meant. [ 8 ] The cross-examination went on concerning several possible locations for this occurrence of the wind from the north and it was similarly further confirmed by Constable Lee with regard to the wind from the east.

In Constable Lee's mind, that meant a wind that was eastbound or moving from west to east. [ 9 ] With regards to winds from the northeast, it became more complicated. Constable Lee said the direction of such a wind depended on the position of the body. He said it would not be from the opposite compass point, the southwest, but rather from the southeast and it would depend on the position of his body. [ 10 ] In submissions concerning the evidence of Constable Lee, Ms. Pineo for the Crown said that the evidence was inconclusive in part due to the confusion of the affiant and the inconsistency in terminology.

At another point, she said that the affiant's articulation was not the greatest. His ability to explain wind direction orally was confusing and did not assist the court. He could have elaborated better. [ 11 ] I, unfortunately, must conclude that Ms. Pineo is quite wrong about that. I found Constable Lee quite articulate and able to explain and demonstrate many other events and observations he had made. Nor was he confused. I was at first concerned that that may be the case, but it became very clear that he well understood what was being asked and what he was saying.

He even physically demonstrated what he was saying to support his oral testimony by pointing to parts of the courtroom and moving his body about in the witness box. [ 12 ] As a consequence, when one uses Constable Lee's explanation when interpreting and understanding the Information to Obtain the search warrant, it must be concluded that the smell of marihuana came from just about everywhere but the subject premises at 7203.

If the authorizing JP had understood that, the search warrant could not have issued. [ 13 ] I conclude that, unfortunately, the authorizing JP would not have known Constable Lee's special meaning of the phrase used through the Information to Obtain, but rather would have understood simply that "from the north" means what it says.

Because Constable Lee had a special meaning for the phrase and that meaning was not spelled out in the Information to Obtain, the result was that the justice of the peace was misled as to the understanding of Constable Lee and would have had in mind wind patterns exactly the opposite of Constable Lee's understanding. [ 14 ] Given the evidence of Constable Lee which must be considered when interpreting the meaning of the ITO, I conclude that the ITO could not support the issuance of the search warrant.

The search was warrantless and unreasonable under s. 8 of the Charter . [ 15 ] That disposes of the matter, but counsel had been careful to deal with the alternate possibility of considering the Information to Obtain the warrant in isolation from the evidence of Constable Lee, in other words, on its face.

I will briefly comment on that. [ 16 ] As defence have submitted, there is precious little in the Information to Obtain the warrant describing the subject premises and surrounding properties other than "a residential area." By inference, in Constable Lee's narrative, one discerns the presence of five or six other residences and their direction from the subject residence, but little more. It ensued in evidence that the area seems to consist of average sized lots of 50 or 60-foot width with houses in close approximation and outbuildings on most of the properties consisting

mostly of carports or garages, but on some properties such as the subject property, other outbuildings, as well. [ 17 ] Defence says this information should have been included in the Information to Obtain the search warrant in order to properly inform the issuing justice of the peace. They are right.

The observations of Constable Lee can only be understood if one has good information concerning the other properties. [ 18 ] In particular, in the investigations of Constable Lee, there is a real concern that if there had been an east wind from the east and if Constable Lee had smelled marihuana on the west sidewalk of the subject property, then the odour could equally well have come from the house or outbuildings directly next door to 7203 Broadway or even the house next door to that which was just behind and in view or the house just behind that. [ 19 ] It appears that Constable Lee made efforts to exclude the first of those possibilities.

He said he went "on the house" to the east, but he did not state where on that property he investigated. When he went back to that property to provide further disclosure just a few weeks ago, he did not go on the property because he was concerned about the privacy of the residents. [ 20 ] Therefore, a fair assumption would be that at the time of these investigations when he went "on the house," he may have just stood in front of the lot or in front of the building.

If such were the case, he would have been to the south as much as to the east and likely not have excluded that house and would certainly not have excluded the other houses or outbuildings to the east. [ 21 ] There is also a concern from reading the Information to Obtain that Constable Lee reaches conclusions about the direction of scent on the wind depending on the direction he is facing.

That is clear from the passage in the Information to Obtain where he states he cannot smell marihuana until he has turned his body. [ 22 ] Had I considered the Information to Obtain the warrant without the benefit of the amplification by Constable Lee's evidence, I would have concluded that the evidence concerning the source of the smell of marihuana was equivocal at best and could not have supported the issuance of the search warrant. [ 23 ] Those are my comments with regard to that situation, in the result that I have determined the search warrant could not have issued.

I will not comment further on the Information to Obtain at this time. So that is my determination concerning this. [RULING ON VOIR DIRE RE GRANTING OF SEARCH WARRANT CONCLUDED]