R. v. Kang, 2018 BCPC 304

Citation: R. v. Kang 2018 BCPC 304 Date: 20180815 File No: 219278-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. GARY SINGH KANG ORAL RULING ON VOIR DIRE #3 OF THE HONOURABLE JUDGE D. JAHANI Federal Crown Counsel: D. Patterson Counsel for the Defendant: J. Ray, QC Place of Hearing: Surrey, B.C. Date of Hearing: August 15, 2018 Date of Ruling: August 15, 2018

[ 1 ] This is an oral ruling with respect to Mr. Kang's application to exclude evidence pursuant to s. 24(2) of the Charter . [ 2 ] On June 1st, 2016, the police executed a search warrant on Mr. Kang's residence located at Unit 506 - 3168 River Walk Avenue in the City of Vancouver. As a result of this search a quantity of drugs (cocaine, heroin/fentanyl mixture and methamphetamine) were seized, along with weapons such as brass knuckles, paint ball gun, taser, ammunitions, and other drug paraphernalia. [ 3 ] Mr.

Kang was charged with three counts of possession for the purposes of trafficking with respect to the subject drugs, as well as three counts of possession of weapons and one count of unlawful storage of ammunition. [ 4 ] In an earlier voir dire ruling, I have found that there was lack of factual underpinning in the ITO to support that evidence of these offences would be found at the above residence, based on which the issuing justice could have authorized the warrant.

I therefore found that the warrant could not properly have issued and that the search of the residence was a warrantless search and hence, a breach of s. 8 of the Charter . [ 5 ] I have further made the finding that the Form 5.2 was not filed as soon as was practicable. As such, the continued detention of the items resulted also in the breach of Mr. Kang's rights pursuant to s. 8 of the Charter . [ 6 ] On this basis, Mr. Kang is seeking to exclude the evidence resulting from the search pursuant to s. 24(2) of the Charter . It is the Crown's position that the evidence ought to be admitted.

Section 24(2) Charter Hearing [ 7 ] A separate voir dire was declared in which the Crown called five officers as part of the s. 24(2) hearing who were involved in the search, along with an officer who provided expert opinion to the court relating to the possession of the drugs for the purposes of trafficking. [ 8 ] Defence did not call any evidence in the voir dire . [ 9 ] The entry into the premises was done at 20:45 p.m. In total, 12 officers participated in the execution of the warrant (including Vancouver Police Department Emergency Response Team).

All officers participating in the search of the residence read and signed the warrant prior to conducting the search. The Emergency Response Team was involved because of the Vancouver Police Department's protocol, as the residence was within their jurisdiction. [ 10 ] The VPD entered the residence using a key. There is no evidence based on which I can make a finding that damage was done during and as a result of the search to the premises. The search of the residence was extensive and concluded shortly after midnight. In total, six or seven officers participated in the search of the residence. [ 11 ] Mr.

Kang was not home when the residence was searched. The residence appeared to be lived in. The kitchen was used. I will not go through the list of all that was found in the apartment but there was glassware, a Magic Bullet, utensils containing what officers believed to be drug residue, empty pizza boxes, documents such as a car rental agreement, contact list, eviction notice, business cards and other appliances such as a scale, NutriBullet motor, coffee grinder with residue, found in the cupboard and/or drawers at the kitchen.

Car keys, sandwich baggies, a bag labelled “SB” containing what is believed to be a cutting agent for drugs were also found in the apartment along with an empty box and manual for a revolver, a CO2 canister, a pellet gun and a bag of pellets. Cst. Johnny [ 12 ] Cst. Johnny was the exhibit officer in charge of delegating to other officers the search of different parts of the residence. He was also responsible for collecting, handling and cataloguing the documents and exhibits. [ 13 ] He testified that he would be making the decision as to whether or not to seize an item as evidence.

He also took photographs of the items seized. Cst. Johnny stated that although he was aware that the search for drugs was not part of the enumerated items to search for pursuant to the warrant, upon seeing a Pyrex containing what he believed to be drug residue, he believed drugs would be found in the premises. [ 14 ] He testified that other members of the search team also saw the Pyrex. Cst. Parent [ 15 ] Cst. Parent was one of the officers who participated in the search of the residence. She was tasked with searching the kitchen assisted by Cst. Tomalia (phonetic).

She described the kitchen as messy, dirty and used. She searched the kitchen along with all the cupboards and drawers. I will not go over all the items seized from the kitchen, its cupboards and drawers, however, of note is that there was a bag containing what appeared to be Oxycodone pills on the kitchen counter in plain view as one enters the kitchen. The analysis of the pills, after seizure, revealed that they did not contain drugs. Also on the counter, in plain view, a GPS tracker, a baton, brass knuckles, butter knife with residue and cell phone were located. [ 16 ] Cst.

Parent was searching for evidence relating to possession for trafficking of drugs, residency and other items set out in the warrant. Cst. Parent was not aware at the time of the search that the warrant did not permit for the search of drugs. Cst. Torudag [ 17 ] Cst. Torudag, assisted by Cpl. Lachuk (phonetic) was assigned to search the master bedroom. He described the bedroom as somewhat messy, with men's clothing laying on the ground. The drawers of the night tables were searched.

In one drawer, a closed glasses case was located in which the officer found a dialer bag containing various drugs. [ 18 ] Other evidence relating to the weapons and ammunition charges were located in other parts of the master suite, such as in the

closet and under the bed. An unlocked safe was also located containing nothing of significance. [ 19 ] Cst. Torudag stated that in his communication with other officers during the search, he was aware that some of the officers had located drug-contaminated material in the search. Having read the warrant and signed it prior to commencing the search, he was not aware that the warrant did not grant authorization for the search of drugs. Cst. Cimaglia [ 20 ] Cst. Cimaglia was tasked with searching the kitchen and the closet. I will not recite again all the items seized from the kitchen or its cupboards and drawers.

Of note, he found a money counter, a top blade of a Magic Bullet with residue, and a dehydrator on the kitchen countertop, a Pyrex with residue in the sink, and a glass bowl with residue in plain view on the counter. [ 21 ] He stated that Cst. Johnny tested the substance within the bowl and it was believed the residue to be heroin and as such, the item was seized. [ 22 ] Cst. Cimaglia was also involved in the earlier investigation of this case.

He was an affiant tasked with preparing orders to seek Transmission Data Recorder (TDR), Tracking Warrants and production orders for the three drug lines. [ 23 ] This was the first time Cst. Cimaglia was an affiant seeking such orders, although he had been previously involved in such investigations a half dozen times.

He testified that a TDR provides subscriber information on the incoming and outgoing calls; it provides customer names, patterns of calls and generally assists with an understanding of the scope of the drug line. [ 24 ] The Tracking Warrant assists with the surveillance and tracking of the phone, identifying locations of interest such as stash houses, reloading sites, et cetera. [ 25 ] When he first applied for the production orders, the TDR and Tracking Warrants on March 21, 2016, he was only able to obtain the production orders (on March 22nd, 2016).

The TDR and the Tracking Warrants could not be granted because the dates were retroactive. They were granted on the next day, on March 23, 2016, however the justice changed the locations to an address for the TDR. She further provided reasons for her decision. At the top of the decision, the words, "Do not Purge- Retain with File", are marked in title font capital letters in bold. [ 26 ] The decision is mainly on the first page. There is one line of the decision on the second page before the signature line wherein the justice confirms that she had granted the other warrants previously.

After this last line, the signature line appears. The issuing justice required that this application be referred to and a copy of her decision to be appended to any re-application. The direction was located at the end of her decision, below her signature, underlined and in bold font. [ 27 ] On or about April 1, 2016, Cst. Cimaglia received information from one of the telephone companies informing him that the subject line was with another carrier. As such, Cst. Cimaglia had to re-apply for the TDR and Tracking Warrant for that line. The re- application was made to a different justice.

In his re-application, although he followed the previous justice's previous decision including the address and not the location, he failed to append that justice's decision as directed.

He acknowledged that the second justice may not have known about the reasons behind the first application. [ 28 ] He testified that he did not know he needed to append the decision and only became aware of it two months prior to this trial when informed by the Crown, and maintained that this was an oversight on his part, as he had clearly read the decision to have made the appropriate changes, but did not recall the last two lines of the direction.

He stated that his focus was on the first page of the decision which contained the main reasons and what he cannot ask for, but may not have fully grasped the content of the second page when he skimmed through it. He denied ignoring the justice's decision. [ 29 ] He further testified that if he had not obtained the warrants, the investigation would not have been impacted: for example, he stated that the police went to the River Rock Casino not because of the results from the TDR, but because they were there already.

They had done searches on the rental car and noted that the renter was the same individual involved in the hit and run. The vehicle matched the one involved in an undercover drug buy and the renter would have been discovered once the officer would have followed up with the rental company. [ 30 ] Cpl.

Blecker, the lead investigator, made an application in May 2016 for a search warrant relating to the Blackberry phone found as belonging to Ghikerman, (phonetic) as it was believed to be a “work phone” for the drug line, along with a Tracking Warrant in relation to different phone numbers and a production order. [ 31 ] Cst. Cimaglia was not aware that Cpl. Blecker made such an application in May of 2016. He had no recollection, but believed he would have told Cpl. Blecker about the justice's direction as he was the lead investigator.

Beyond that, he was not aware of any official methods to record judicial justices' decisions within the detachment, but stated that digital copies are sent to the master file and there is a record of their applications and documents from justices. He further stated that it is incumbent upon members to load copies of documents onto the master file for each investigation so as to have it available to other members. Cpl. Blecker [ 32 ] Cpl. Blecker has been a member of the RCMP since February 2006 and at the time of this hearing, he was a member of the ERT in the Lower Mainland.

During the course of this investigation, he had been with the Surrey Drug Squad. He has extensive experience in drug investigations, having a variety of roles such as affiant, exhibit officer, undercover member, surveillance member and the like. [ 33 ] During the search of the residence, he found a conductive energy baton and flashlight under the bed in the smaller of the two bedrooms. [ 34 ] With respect to his application for TDR and warrant in May of 2016, he did not append the justice's decision to this application

as he was not told of any documents needing to be appended. He did not recall seeing the justice's decision otherwise he would have appended it to his application. [ 35 ] He stated that he was not aware of an RCMP policy dealing with such issues and believed that team briefings and word of mouth enable officers to become aware of such documents. He was not concerned that the ERT was involved in the execution of the search warrant as they are a specialized team equipped to deal with issues if something were to happen and in this particular case, jurisdictional issues required it. Cst.

Babala [ 36 ] By consent of defence, Cst.

Babala was declared an expert to provide expert opinion in the areas of possession of cocaine, methamphetamine, heroin and fentanyl for the purposes of trafficking, consumption, packaging, distribution, pricing practices, terminology/street language and the trends with respect to a dial-a-dope operations, including roles of the participants in dial-a-dope operations with regard to cocaine, methamphetamine, heroin and fentanyl. [ 37 ] The total drugs seized in this case are 24 grams of powdered cocaine, 1.5 grams of methamphetamine, 1.5 grams of crack cocaine, 1.31 grams of heroin/fentanyl residue.

The street value of the powdered cocaine, depending on the gram denomination sale was opined to be between 1,920 to $2400. The value of the crack cocaine, appeared to be 20 rock pieces, was approximately $120. The street value of the methamphetamine seized was between $75 to $150 as they were packaged at 0.5 gram level and could sell anywhere between $25 to $50 per half gram. The street value of the 1.3 grams of heroin/fentanyl mixture, if sold at 0.1 gram level, would be $260.

The total value of the drugs was approximately $2900. [ 38 ] The expert provided opinion that the baggie of drugs in the glasses case was consistent with it being a dialer bag as the street trafficker will usually have all the drugs in one container. That the scales were used to weigh and package the drugs, the money counter to count monies, seen in operations involving a lot of cash.

Baggies and empty vials to packaged drugs. [ 39 ] That the back of the cutting agent Super Buff (492 grams), (typically a mixture of baking soda and/or caffeine), would be used to increase the volume of the product so as to increase profit. The content of the bag was analysed and found to be a substance used for fever and cold medication and not a prohibited drug under the CDSA . [ 40 ] The cell phones are there to enable traffickers to communicate with their clients.

Weapons are there to protect against others, enforce compliance within the group and to collect debts. [ 41 ] The officer stated that the business cards found on the premises, which consisted of a thousand cards with a fictitious business name and a drug line telephone number, were typically used in more sophisticated operations. That the rental car agreement found in the apartment was for cars rented which facilitate a trafficker's drug transport to a client. The rented car offers protection against the police and other rivals and if seized, will not be a loss to the organization.

That a GPS tracker with a magnet is used by traffickers to track their rivals in an effort to preserve their territory, and to also track and monitor the whereabouts of their own line workers. [ 42 ] The officer agreed that the residue of the drugs found in different appliances, which were mainly a mixture of heroin/fentanyl, was minimal in this case-approximately one gram in total as between the residue found in the glass bowl, on the butter knife, the Magic Bullet and the dehydrator. She also agreed that such residue is generally not in a usable state.

She gave opinion that nothing was found in the residence that supported fentanyl/heroin being found in amounts suitable for distribution. [ 43 ] With respect to the bag of what was believed to be Oxycodone pills, the analysis later determined that the pills were not oxy nor a prohibited drug. Based on the material found in the kitchen and the apartment, it was the opinion of the expert that the residence was a processing site to make and package drugs and sell them through the dial-a-dope method. The Law [ 44 ]

Section 24 of the Charter provides, 24(1): Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 45 ] Section 24(2): Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 46 ] The person seeking a Charter remedy under s. 24(2), bears the burden of demonstrating on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.

The analysis involves a consideration of all the circumstances as per R. v. Grant , 2009 SCC 32 . [ 47 ] The court must consider the seriousness of the Charter -infringed state conduct, the impact on the Charter -protected interest of the accused and the significance of excluding evidence for society's interest in adjudicating the case on its merits. R. v. Grant , para. 71 . [ 48 ] A s. 24(2) inquiry is objective.

The question to be answered is whether a reasonable person informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute. (para. 68) [ 49 ] The purpose of s. 24(2) is to maintain the good repute of the administration of justice which involves maintaining the rule of law and upholding Charter rights in the justice system as a whole ( Grant , paragraph 67 ).

[ 50 ] The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system: (para. 68) [ 51 ] A s. 24(2) inquiry focus is not only long-term, but perspective. The inquiry starts from the position that the fact of the Charter breach means that damage has already been done to the administration of justice and seeks to ensure that evidence obtained through that breach does not cause further damage to it: (para. 69). [ 52 ] The s. 24(2) inquiry focus is also societal.

It is to focus on the broad impact of the admission of the evidence on the long-term repute of the justice system, not aimed at punishing the police or compensating the accused: para 70. (

i) The Seriousness of the Charter -Infringed State Conduct [ 53 ] The first line of inquiry involves an evaluation of the seriousness of the state conduct. The more serious the state conduct constituting the Charter breach, the greater the need for the courts to distance themselves from that conduct by excluding evidence linked to the conduct, where a failure to do so would bring the administration of justice into disrepute. This will serve to preserve public confidence in and ensure state adherence to the rule of law. ( R. v.

Grant , para. 72 ). [ 54 ] In Grant , the court recognized that state conduct resulting in Charter breaches covers a wide spectrum, from minor or inadvertent violations on the one end to wilful or reckless disregard for Charter rights on the other. As this state conduct approaches the more serious end of the spectrum, admission of the evidence obtained through the wilful or reckless disregard of Charter rights will inevitably have a negative effect on public confidence in the rule of law and bring a risk that the administration of justice will be brought into further disrepute. ( R. v.

Grant , para. 74 ). [ 55 ] “Good faith” on the part of the police will reduce the need for the court to disassociate itself from the state conduct at issue; however it must be kept in mind that ignorance of Charter standards “must not be rewarded or encouraged” and that “negligence or wilful blindness cannot be equated with good faith”. ( R. v. Grant , para. 75 ). [ 56 ] The court in Grant also recognized that extenuating circumstances may attenuate the seriousness of the state conduct that led to the Charter breach.

Such circumstances can include the need to prevent a disappearance of evidence or where the authorities have acted in good faith. ( R. v. Grant , para. 75 ) [ 57 ] Evidence that Charter -infringed conduct was part of a pattern of abuse by the state tends to support exclusion of evidence arising as a result of that conduct. ( R. v.

Grant , para. 75 ) [ 58 ] It is the defence position that the police engaged in serious misconduct during this investigation, that there is a pattern of disregard for Charter interests by the police and that their conduct amounts to negligence and not in good faith. [ 59 ] Defence argues that we are not dealing with only two s. 8 Charter breaches in accordance with my prior ruling, but that in fact there are numerous breaches in this case; that the police had breached Mr. Kang's right by searching for items not specifically authorized by the warrant, by Cst.

Cimaglia not disclosing to the second justice the direction of the first justice, or making the other officers aware of the direction, and by lack of police protocol or policy in making members aware of decisions made by justices in general. [ 60 ] It is the Crown's position that only two breaches, s. 8 Charter breaches, in accordance with my prior rulings are before the court and that no hearings were specifically had with the balance of the issues raised by defence.

Crown concedes that the court can consider the remaining two items raised by defence as “police conduct” in assessing the seriousness of the breach, but Crown denies that the police engaged in deliberate negligent misconduct. Insufficiency of the ITO - Invalid Warrant [ 61 ] Defence submits that Cpl.

Blecker ought to have known that the ITO lacked sufficient information and objective grounds. [ 62 ] I have reviewed a series of case law provided by both defence and Crown. [ 63 ] The ITO in this case failed to disclose, in many respects, information to support that evidence of the offences to have been occurring, would be found at Mr. Kang's residence. [ 64 ] I echo Harris J.’s comments in R. v. Problete et al , 2018 BCPC 152 , at paragraphs 12 and 13 : [12] … A search warrant is a specialized tool which permits the state's access into the most private corners of an individual's life.

For these reasons, there are strict requirements that must be met before a search warrant is issued. These requirements serve to safeguard the process and individual privacy by ensuring that search warrants are only issued in the correct circumstances. Paragraph 13: [13] The importance of search warrants require that those involved in the issuing process must perform their responsibilities with diligence and attention to detail.

An ITO is not merely an exercise of stating conclusions; rather the informant must critically assess all of the information in the ITO and ensure that there is full and frank disclosure, further, that the information is accurate and that the material supports their ultimate belief. [ 65 ] I do appreciate Crown argument that the search warrant was issued by the justice based on the ITO as it was, and that the execution of the warrant was on the understanding that the warrant was valid. This, however, does not excuse or justify the lack of attention to detail and/or hasty investigation.

The police is expected to know the law so that their conduct would be in accordance with the law. [ 66 ] The ITO was woefully lacking. It invited inferences based on incomplete foundation. There was no evidence, for example, in

the ITO, supporting the belief that computers, electronic storage devices, tablets, smart phones, cameras and other electronic devicescapable of storing data would be found in Mr. Kang's residence. [67] There was no evidence anywhere in the ITO suggesting that any of the other workers frequented Mr. Kang's residence offeringthe inference of obtaining drugs and/or dropping off monies, and there was nothing in the ITO supporting the assumption and conclusionthat one of the individuals whose car was located in the area of Mr. Kang's residence and subsequently arrested leaving the area(Farroghi), had attended at Mr.

Kang's residence, let alone substantiating that the drugs found on him came from Mr. Kang's residence. [68] There was no evidence in the ITO suggesting that Mr. Kang keeps a score sheet or a tally of drugs or monies or that any of thebuy monies were given by other workers to Mr. Kang. The ITO was drafted with insufficient information. The residence at the time ofthe application to grant the warrant was believed to be vacant. Further investigation could have been done to establish a properfoundation in the ITO before seeking the warrant.

The ITO was drafted in haste. [69] As to the manner of search, there was no dynamic entry. The police had valid reasons to request entry by night which was tominimize the inconvenience to the public and the residents of the building. Notwithstanding the definition of “Night” in the CriminalCode, s. 2, the warrant permitted entry between the hours of 8:00 p.m. to 2:00 a.m. and therefore the police entered the residence inaccordance with the time set out in the warrant. [70] Mr. Kang was not home and it was believed that the unit was unoccupied. We are therefore not dealing with a case such as wasthe case in R. v.

Diep, 2013 BCSC 2447, or in R. v. Dionisi, 2012 ABCA 20 , [2012] A.J. No. 65. Furthermore, I accept theevidence that due to jurisdictional issues of the residence being in the Vancouver area, the VPD policy required ERT’s attendance. [71] I do not find that the police engaged in inappropriate conduct during the search even though I do take note that a safe wasremoved and the wall may have been damaged. However, I do not have any evidence to suggest that the wall was not already damagedimmediately prior to the search.

Search of Items outside the Scope of the Warrant [72] It is the defence position that the officers in the search of the residence wilfully ignored the limits of the warrant and searchedfor items not authorized by the warrant.

The warrant permitted the recovery, hence the search and seizure of the following: cellular phones; tablets; computers; cameras or other electronic storage devices; cash, including “buy money”, score sheets, rentalreceipts for a 2016 Jeep Patriot; electronic and paper documents that will afford evidence of residency at unit 506-3168 River WalkAvenue, Vancouver, B.C. [73] Therefore, the warrant did not authorize for seizure or search of drugs and drug-related paraphernalia or equipment. [74] It is the Crown's position that the officers may have been inattentive but have not wilfully ignored the limits of the warrant.

Crown argues that the officers were entitled to seize items not specified in the warrant pursuant to s. 489(1) of the Code. It is clear fromthe testimony of all officers who participated in the search that prior to the search occurring they all read and signed the warrant. [75] Cst. Johnny was the lead exhibit officer. It was at his direction that items were seized. For example, Cst. Parent testified thatshe would point an item to Cst. Johnny who would determine whether the item should be seized or not. [76] Cst.

Johnny stated that drugs were not the subject of search but that items were seized because they were searching for drugsonce he saw the empty Pyrex containing what he believed to be drug residue. He stated that when he saw the Pyrex, he knew of theexistence of drugs on the premises.

Reasonable grounds were not clearly articulated as to how what he saw gave him reasonable groundsto believe in the existence of drugs. [77] I agree with defence that the provisions of s. 489(1) of the Code is the codification of the plain view doctrine. [78] Plain view doctrine allows for seizure of items where there is no reasonable expectation of privacy due to the lawful intrusion ofthe state authority pursuant to statutory authority, judicial authorization or common-law.

The doctrine requires that the evidence bediscovered inadvertently, that the evidence be in plain view through the unaided use of the officer's senses and that it be immediatelyapparent to the officer that the evidence was probably connected to criminal activity. [79] Section 489(1) of the Code is not as broad as its s. 11(6) or s. 11(8) of the CDSA counterpart in that it does not permit seizure ofitems that are solely for evidentiary value (without reasonable grounds).

Section 489(1) of the Code permits plain view seizures wherereasonable grounds exist and the items are not mentioned in the warrant. [80] Although s. 489(1) of the Code gives officers permission to seize items not in the warrant, it does not give them permission tosearch for items not in the warrant. [81] The search warrant permitted the search and seizure of certain enumerated items. I agree with the comments of Mr. JusticeSilverman in R. v. McNeil, 2014 BCSC 723, at paragraph 97: The Crown is wrong when it argues that a search warrant cannot restrict the authority granted to police under s. 489.

In my view, it canand does do precisely that when it does so clearly and expressly as it did in this case. Where the two are in direct conflict, the searchwarrant will always prevail.

Section 489 is permissive. It says the police officers "may" seize certain items where there are reasonablegrounds to do so. The search warrant is not permissive; it is mandatory. The police must comply. [82] In the case at bar, the officers were under the impression that the warrant was valid even though a determination has been madein the court's prior ruling that it was not. Some of the items seized outside of the scope of the warrant were in plain view, such as brassknuckles, the Pyrex and glassware with residue, the money counter. However, other items such as scale and NutriBullet motor and

coffee grinder with residue, business cards for the drug line, which were found in the kitchen cupboards and drawers were not in plain view and therefore should not have been seized. [ 83 ] The search of the premises took approximately three hours. Once the residue of what was believed to be drugs was discovered by Cst.

Johnny, the police should have had ample time to obtain a warrant at that point to search for drugs so as to legally seize drugs and/or any other drug-related paraphernalia. [ 84 ] While the Crown submits that it was reasonable for the officer to look into the glasses case to find one of the enumerated items in the warrant, such as buy money, hence arguing the inadvertent discoverability of the drugs, it was that officer's evidence that he was looking in the case to search for drugs.

This, by definition, negates the prerequisite element for the applicability of the plain view doctrine, if Crown was relying on this principle for the purposes of the sunglasses search. [ 85 ] It is troubling that some of the search officers who testified at the s. 24(2) hearing, stated that they were searching for drugs and were not aware that the warrant did not authorize such a search, even though they all read and signed the warrant prior to the search. [ 86 ] Defence suggests that this is an indication of bad faith on the part of the officers, when they searched for drugs, having read the warrant and knowing that it did not permit such search or seizure. [ 87 ] I am not prepared to make a finding of bad faith.

It was clear through these officers' evidence that they found out about the lack of such authorization in court, and I accept their evidence. Clearly the officers did not pay attention while reading the warrant. This, however, does not place such a conduct on the lower end of the spectrum as I am concerned about their lack of attention to the details of the warrant especially one that involves the search of a home where the occupier, here Mr. Kang, holds a high degree of expectation of privacy.

The Form 5.2 - Report to a Justice [ 88 ] This form was completed incorrectly for a warrant under the CDSA as opposed to under the Criminal Code . Furthermore, it was submitted 25 days after seizure as opposed to as soon as practicable, when the constable could have completed the form prior to leaving for his pre-approved course. Therefore the continued detention of the items was a breach of Mr. Kang's s. 8 Charter rights. Judicial Justice of the Peace’s Direction [ 89 ] Defence submits that Cst.

Cimaglia's failure to follow the justice's direction in appending her decision to a future re-application, which was submitted eight days after the first, is a serious and deliberate misconduct especially when the existence of the decision or direction was not communicated to other officers, one of whom made a subsequent application to a different justice a few months later. [ 90 ] Taking this one step further, defence argues that it is a serious concern that the Surrey Drug Unit of the RCMP does not have a system in place in which the members would be made aware of such decisions.

Defence ultimately argues that such misconduct and deficiency is so serious as to warrant disassociation by the courts. [ 91 ] Crown submits there is no deliberate attempt by the officer to subvert the justice's direction and that the officer was flustered and embarrassed about the oversight. Crown concedes that there appears to be no mechanism for the police to inform each other of the JJP decisions.

However, Crown states that no evidence relating to these applications will be led at trial, therefore, even if the remedy of exclusion were to be ordered, such evidence is technically excluded as it is not being led by the Crown. [ 92 ] The judicial justice of the peace's decision and direction to append deals with “re-application”, not specifically a new application or any further application within that investigation. [ 93 ] Based on the direction provided, I am not satisfied that the justice intended her decision to be appended to any and every application and/or any application within that investigation. [ 94 ] In considering the seriousness of the state conduct, I must also consider its impact.

This is not a situation where Cst. Cimaglia failed to provide a corrected version in subsequent re-application. He was clear in his testimony that he made the correction but failed to append. [ 95 ] As for Cpl. Blecker, his application was independent from that of Cst. Cimaglia's, even though part of the same investigation.

His application was properly made and his warrants and production orders were granted. [ 96 ] Based on the facts before me, I cannot conclude that the impact of the failure to append or disclose led to serious consequences. [ 97 ] What I am prepared to conclude is that I do find that the officer was inattentive to the documents before him.

Careful attention must be paid to documents and orders in general and especially ones that involve intrusion on privacy rights. [ 98 ] The corrections were made according to the justice's decision, however the re-application when made was to a different justice who should have been made aware of the first justice's decision.

Generally speaking, police should have a mechanism or a system of keeping track of such decisions, however even though the apparent lack of such a system is concerning, it does not amount to misconduct by the police. [ 99 ] While some police conduct in and of themselves are not egregious (such as the late filing of the 5.2 form or lack of appending the JJP direction), a review of the totality of the police conduct is concerning as it shows a series and a pattern of repeated lack of attention to detail (the 5.2 form, the judicial justice's direction, not paying attention to the limits of authorization of the warrant), hasty actions (drafting insufficient ITO) and inaction (not getting a warrant for drugs when became aware of the drugs). [ 100 ] There was no urgency in the conduct of the investigation in this case (ex: disappearance of evidence) for the police to not draft

an ITO with proper foundation, or to not obtain a warrant for search of drugs once at the premises. Lack of evidence of bad faith is notexistence of good faith. Negligence, recklessness and/or carelessness, in this case by the police, cannot be equated with good faith. [101] Looking at the totality of the circumstances, this favours exclusion in the first prong of the Grant analysis. (ii) The Impact of the Charter-protected Interests of the Accused [102] The second line of inquiry deals with the seriousness of the impact of the Charter violation on the Charter-protected interests ofMr. Kang.

The impact may range from that resulting from a minor technical breach to that following a profoundly intrusive violation. [103] The more serious the impact on the accused's constitutional rights, the more the admission of the evidence is likely to bring theadministration of justice into disrepute. [104] To determine the seriousness of the breach from this perspective, a court is to look at the interests engaged by the infringedrights and examine the degree to which the violation impacted those rights or those interests.

The more serious the incursion on theseinterests, the greater the risk of bringing the administration of justice into disrepute by admission of the evidence. (R. v. Grant, para. 77) [105] For example, a search contrary to s. 8 may impact on the “protected interests of privacy and, more broadly, human dignity”. Such a search that intrudes on an area in which a citizen enjoys a high expectation of privacy or that demeans his or her dignity, is moreserious than one that does not. (R. v.

Grant, para. 78) [106] Crown argues that privacy interests in one's personal computer is perhaps higher than privacy interests in one's home. I havereviewed the case law provided by Crown. In R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, paragraph 105, the court seemsto equate the privacy interests in home and in one's computer: ...it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. [107] I find that Mr. Kang does hold a high expectation of privacy in his home. Mr.

Kang was not in the residence, therefore theexecution of the warrant in that sense did not impact him as it did in R. v. Diep, and R. v. Dionisi, nor was the execution of the warrantsuch that it caused damage upon entry or turned Mr. Kang's residence into a disorganized state. [108] Based on the facts before me, the intrusion on Mr. Kang's home and privacy was attenuated by the fact that he was not at homeat the time of the execution of the warrant.

Furthermore, although the Form 5.2 was filed late and there was a continued detention of theitems seized, I do not have any evidence before me that searches of electronic devices were done for information purposes during thiscontinued detention. This factor favours admission of the evidence. (iii) Society's Interest in an Adjudication on the Merits [109] The third line of inquiry is concerned with society's interest in an adjudication on the merits.

It asks whether the truth- seekingfunction of the criminal process would be better served by the admission or exclusion of the evidence. [110] The reliability of the evidence and its importance to the prosecution's case are key factors. Admitting unreliable evidence wouldnot serve the accused's fair trial interests nor the public's desire to uncover the truth.

On the other hand, excluding reliable evidence mayundermine the truth-seeking function of the justice system and render the trial unfair from the public's perspective. [111] The importance of the evidence to the Crown's case is corollary to the inquiry into reliability.

Admitting evidence ofquestionable reliability is more likely to bring the administration of justice into disrepute where it forms the whole of the prosecution'scase, but excluding highly reliable evidence may more negatively affect the truth-seeking function of the criminal law process where theeffect is to “gut” the prosecution's case. [112] As set out in R. v. Wong and Truong, 2017 BCSC 1623, at paragraph 23: These factors do not operate as a three-part test.

There are no particular findings under the three lines of inquiry that mandate particularresults, and it “is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case” (R. v.Harrison, 2009 SCC 34 at para 36). The balancing mandated by s. 24(2) is “qualitative in nature and therefore not capable ofmathematical precision”(Grant at para.140).

Rather, the court must weigh its considerations under all three factors to determinewhether, on balance and having regard to all the circumstances, admitting the impugned evidence would bring the administration ofjustice into disrepute in the long-term, from the perspective of a reasonable person. [113] Crown's case relies entirely on the evidence seized from the residence. The offences before the court are serious offences. Theyinvolve hard drugs and addictive drugs and the evidence in this case is reliable in that it existed independently of Mr. Kang.

However, acourt analysing this factor must be careful not to allow the seriousness of the offence and the reliability of the evidence to overwhelm thes. 24(2) analysis, because this would afford lesser Charter protections to those charged with more serious crimes (Harrison, at paras. 34and 40; Côté, at para. 48; Wong, at para.15): Wong, para. 39. [114] The public does have a heightened interest in seeing a case adjudicated on its merits where the offence charged is serious, butthe public “also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accusedare high” (R. v.

Grant, at para. 84; see also R. v. Reddy, 2010 BCCA 11 at para. 94). [115] The balancing exercise under s. 24(2) is fact-dependent and case-specific. In balancing these factors I have to look at the long-term repute of the administration of justice and maintaining the public's confidence in the justice system. [116] It is concerning and fatal that there have been many instances of misconduct by the police. It is further concerning that out of allthe officers involved in this search with various degrees of experience, not one suggested halting the search to seek a warrant for the

search of drugs, when there was ample time to do so while the residence was unoccupied and under police control. [ 117 ] In addition, considering again that they all read and signed the warrant, it was not appreciated that it did not permit for the search of drugs. [ 118 ] Section 24(2) analysis does not involve punishing the police, however this is the type of conduct that the court should disassociate itself with, and it is the type of conduct that will affect the long-term repute of the administration of justice. [ 119 ] Balancing all the factors and looking at all the circumstances, I am satisfied that the admission of the evidence will bring the administration of justice into disrepute.

Hence, the evidence is excluded. (RULING ON VOIR DIRE # 3 CONCLUDED)