R. v. Carpio Date:, 2013 BCPC 305

Citation: R. v. Carpio Date: 20130924 2013 BCPC 0305 File No: 23404 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LEO RAPHAEL CARPIO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: A. Varesi Counsel for the Defendant: B. Suffredine, Q.C., B. Westlake, Q.C. Place of Hearing: Nelson , B.C. Date of Hearing: June 17, 18, 2013, July 26, August 16, 26, 2013

Date of Judgment: September 24, 2013 Introduction [ 1 ] Leo Raphael Carpio is charged with possession of over 3 kilograms of marijuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ( CDSA ) and possession of the proceeds of crime, namely $57,450.00 in Canadian currency, contrary to s. 355 (

a) of the Criminal Code . [ 2 ] In the course of Mr. Carpio’s trial, a voir dire was declared to determine the admissibility of the expert opinion of Sergeant Andrew that the monies found in the home occupied by Mr. Carpio and his wife, Patricia McLaughlin (against whom charges were stayed prior to the commencement of trial), was proceeds of crime. Mr. Carpio acknowledges that Sergeant Andrew is an expert qualified to give an opinion regarding the proceeds of crime. However, Mr.

Carpio submits that the Canadian cash, which is the subject of the officer’s expert opinion, is inadmissible on the grounds that police did not file a proper Form 5.2 Report in accordance with s. 487.1 of the Criminal Code . Specifically, though a Form 5.2 Report was filed, police neglected to list the cash as an item seized and the grounds on which the cash was seized. [ 3 ] Mr. Carpio submits that because police did not comply with s. 487.1 of the Code , the monies were unlawfully seized and thereafter unlawfully detained. He seeks an order that they be excluded from the evidence at trial and returned to him.

The application is not made pursuant to s. 24(2) of the Charter . Rather, Mr. Carpio seeks an order in the nature of certiorari quashing the search warrant and a further order, presumably in the nature of mandamus requiring police to return the monies to him. [ 4 ] Crown submits that the failure to file a Form 5.2 on time or in full is a technical error at best for which the remedy, particularly in the absence of any Charter violation, is not to exclude the evidence from trial.

The Warrant [ 5 ] On May 16, 2011, police obtained a warrant by telecommunication that produces a writing pursuant to s. 11 of the CDSA and s. 487.1 of the Criminal Code in Form 5.1. [ 6 ] The warrant authorized police to search of Mr. Carpio’s residence for cannabis marijuana and other items association with the production of cannabis marijuana, and the possession of marijuana for the purposes of trafficking. The warrant did not authorize police to search for cash or other proceeds of crime as police expected to find a grow operation at Mr. Carpio’s home.

Instead, they found 21 pounds of marijuana in half pound increments sealed in baggies, and the aforementioned Canadian currency. Report to a Justice [ 7 ] On June 12, 2011, police filed a Report to a Justice Following a Seizure in Form 5.2. On the face of the Report the applicant, Constable Long, indicated that police had conducted a search pursuant to a warrant issued under s. 11 of the CDSA . He attached at

section 3 of the Report an exhibit list in which he listed the marijuana and cash that was seized from Mr. Carpio’s residence as well as various other sundry items that were listed in the search warrant. [ 8 ]

Section 1(

c) of Form 5.2 provides the applicant with a space to list items seized pursuant to s. 489 of the Criminal Code additional to those listed in the warrant. It also provides space for the applicant to explain why, when the warrant was issued pursuant to .s 487.1 of the Code , those things that were seized and not listed in the warrant have been obtained or used in the commission of an offence. [ 9 ] Pursuant to s. 490 of the Code , a Justice reviewing this Report must consider whether to order the detention of the things seized.

In this case, the grounds for detention were so that the items seized could be dealt with according to law by way of this trial. What is missing is an explanation on the face of the Form 5.2 of why police thought the cash seized was obtained or used in the commission of an offence. That left the reviewing Justice with no basis on which to issue a detention order of the things seized outside of the warrant. [ 10 ] These facts raise several questions. The first is whether the warrant, having been issued pursuant to s. 11 of the CDSA , requires police to fill out s. 1(

c) of Form 5.2. If so, the second question is whether the remedy for the failure to fill out the Form as required, being a breach of statute, is to exclude the evidence seized. If so, the third question is whether Sergeant Andrew’s opinion regarding the nature of cash seized is admissible if the cash itself is excluded from the evidence. The Statutory Scheme [ 11 ]

Section 11 of the CDSA authorizes courts to issue a warrant to search a residence or other location in respect of offences under the Act. The relevant provisions of the CDSA for the purposes of this application are as follows: 11.

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to a contravention of this Act, under

section 354 or 462.31 of the Criminal Code

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

(2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with

section 487.1 of the Criminal Code , with such modifications as the circumstances require. ...

(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant, (

a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has been contravened; (

b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to in paragraph ( a ); (

c) any thing that the peace officer believes on reasonable grounds is offence-related property; or (

d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act. 13.

(1) Subject to subsections (2) and (3), sections 489.1 and 490 of the Criminal Code apply to any thing seized under this Act.

(2) Where a thing seized under this Act is offence-related property, sections 489.1 and 490 of the Criminal Code apply subject to sections 16 to 22 of this Act. [ 12 ] The authority granted to police to apply for a telewarrant is provided for by s. 11(2) of the CDSA . It incorporates s. 487.1 of the Cod e by reference. It does not appear that by applying for a telewarrant pursuant to s. 11(2) of the CDSA that police are doing anything more than acting pursuant to that Act . The CDSA does not provide explicitly at least that in doing so police are acting under s. 487.1 of the Code .

Moreover, on a strict reading of s. 11(2) of the CDSA , Parliament has authorized the incorporation by reference of the provisions of s. 487.1 of the Code for the purpose of applying for a warrant but there is no reference to that

section of the Code for the purpose of dealing with things seized. [ 13 ] Instead, s. 13 of the CDSA explicitly provides that ss. 489.1 and 490 of the Code apply to anything seized under the Act. [ 14 ] In this case, in filling out Form 5.2 it is evident that Constable Long was proceeding under s. 489.1(1)(b)(ii) and (3) of the Code . [ 15 ] The relevant sections of s. 489.1 of the Code dealing with things seized under a telewarrant are as follows:

(9) A peace officer to whom a warrant is issued by telephone or other means of telecommunication shall file a written report with the clerk of the court for the territorial division in which the warrant was intended for execution as soon as practicable but within a period not exceeding seven days after the warrant has been executed, which report shall include (

a) a statement of the time and date the warrant was executed or, if the warrant was not executed, a statement of the reasons why it was not executed; (

b) a statement of the things, if any, that were seized pursuant to the warrant and the location where they are being held; and (

c) a statement of the things, if any, that were seized in addition to the things mentioned in the warrant and the location where they are being held, together with a statement of the peace officer’s grounds for believing that those additional things had been obtained by, or used in, the commission of an offence.

(10) The clerk of the court shall, as soon as practicable, cause the report, together with the information and the warrant to which it pertains, to be brought before a justice to be dealt with, in respect of the things seized referred to in the report, in the same manner as if the things were seized pursuant to a warrant issued, on an information presented personally by a peace officer, by that justice or another justice for the same territorial division.

(11) In any proceeding in which it is material for a court to be satisfied that a search or seizure was authorized by a warrant issued by telephone or other means of telecommunication, the absence of the information or warrant, signed by the justice and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the search or seizure was not authorized by a warrant issued by telephone or other means of telecommunication. [ 16 ] It is evident that while s. 487.1 has a reporting requirement, it does not require police or other applicant to file the Report in Form 5.2. [ 17 ] Nevertheless, s. 489.1(3) does provide that in filing a Report to the Justice, the applicant must, in the case of a telewarrant, include the statements referred to in s. 487.1(9) of the Code . [ 18 ] In the result, even though s. 487.1 is not strictly speaking applicable to a warrant issued under s. 11 of the CDSA , s. 489.1 of the Code is and that

section requires that the applicant file a Form 5.2 and include the statements referred to in ss. 487.1(9) of the Code . [ 19 ] In the result, it is clear that police did not comply with the Code and the CDSA in this case by failing to list those items that were seized outside the warrant. [ 20 ] The question is whether these items, specifically the Canadian cash, must be excluded as evidence in the trial and if so on what

grounds. Should the Evidence be Excluded [21] Counsel for Mr. Carpio submits that the cash at issue herein should be excluded as evidence because police committed threeerrors in regard to their Form 5.2 Report. First, Mr. Carpio submits that police failed to file the Report in the time period required by theCode. The warrant was executed on May 17, 2011, and the Form. 5.2 filed on June 12, 2011 even though s. 487.1(9) of the Codeprovides that such returns must be filed within 7 days of the execution of a warrant. Moreover, s. 487.1(9)(

a) provides the Report mustindicate the date and time the warrant was executed. In this instance, Mr. Carpio points out that police omitted to state the time of thesearch on their Report. Finally, and most significantly for Mr. Carpio is the failure by police to list the cash as an item seized and thegrounds on which the cash was seized which are requirements of s. 487.l(9)(

c) of the Code. [22] Counsel for the Crown takes issue with the first two alleged errors as they were not raised in argument before leave was grantedto file written submissions. Put another way, Crown submits it had no notice of these two issues and therefore the court ought not toconsider these omissions in determining Mr. Carpio’s application to exclude the evidence. [23] I agree with Crown that the failure to list the time of the search on the Form 5.2 is of no moment and could never on its ownlead to an exclusion of evidence. Mr.

Carpio submits that the 27 day delay in filing the Form 5.2 Report in this case was significantbecause it extended the time during which police usurped the role of the judiciary in determining whether the cash seized could bedetained. As I understand the submissions of Mr. Carpio, it is the general failure of police to abide by the requirements of the Form butmost specifically their failure to list the items seized and the reasons for the seizure that should lead to the order on this voir direexcluding the evidence seized from Mr. Carpio’s home. [24] Counsel for Mr.

Carpio emphasized the purpose of the Report following the execution of a warrant and relies on the reasons inR. v. Guiller (1995), 25 C.R.R. 273 at para. 41 wherein it is stated that the making of a return is “an integral and essential aspect of thelegal execution of a search warrant” because such a process allows the courts and not police to assess the grounds for the detention ofseized items. Mr. Carpio submits that non-compliance with the requirements of s. 487.1(9) is so egregious that it must invalidate thesearch itself and taints any evidence obtained therein.

The late filing in this case did not serve to correct the ultimate error alleged by Mr.Carpio which is the failure of police to list the cash as items seized outside the warrant and the grounds for doing so. In my view, thesignificant error in this application must be that omission though clearly notice or no, it is apparent on the face of the Form 5.2 that it wasnot filed within the time required under the Code. The Effect of the Omissions in this Case [25] Crown relies on R. v.

Arason, (1992), (BC CA), 78 C.C.C. (3d) 1 (BCCA) as binding authority for theproposition that the failure to file a Form 5.2 properly or at all is more a matter of administration such that non-compliance cannot affectthe validity of the search itself. The Crown submits that Arason has not been overruled and is binding authority on this court. [26] Arason was followed in R. v. Tam, [1993] B.C.J. No. 781 (BCSC) by Justice Low, as he then was, who denied an application toexclude evidence on the basis that police had failed to file a Form 5.2 Report.

Justice Low held as follows at paras. 32 and 33 of Tam: 32 The search warrant sections of the Criminal Code require the police to bring the items seized before a justice of the peace or to filea report in a specified form with the justice of the peace. In R. v. Arason and Derosier, (BC CA), [1992] B.C.J.

No.2558, December 2, 1992 (B.C.C.A.), the court described those steps as "administrative procedure" after the search is concluded andadded that failure to comply "ought not to affect the validity of the search itself" (p. 37). 33 There are situations in which failure of the police to make a return in the one form or the other will affect the validity of the seizureor the continued detention of the goods by the police. But that is not the case here. The items seized in all the searches are not perishableand are now, I am sure, in the same form they were when seized.

They have always been available for inspection by the accused and thelack of returns to a justice of the peace has in no way affected the ability of the accused to conduct their respective defences. Therefore,the lack of returns is inconsequential and does not affect the legality or reasonableness of any of the searches or seizures. [27] Similar findings were made with regard to the failure to file a Form 5.2 on time and/or with the requisite information in R v.Cam and Phun, 2007 BCPC 38 , 2007 BCPC 0038, at paras. 39 to 41, and by Justice McEwan in R. v. Placek, 2012 BCSC 1175at para. 30.

There Justice McEwan agreed with Justice Blok that a failure to file a Form 5.2 Report did not go to the root of policeauthority to enter a premises and thus did not invalidate a search warrant. [28] However, there are a number of authorities in British Columbia which hold that a failure to comply with the entirety of thesearch warrant process provided for by the Code, including the requirements of s. 487.1(9), does constitute a breach of both the CriminalCode and s. 8 of the Charter.

In each of these cases, the courts have considered applications to exclude pursuant to s. 24(2) of theCharter and in doing so have entered upon the requisite balancing set out in the test for exclusion under that provision. [29] As examples, in R. v. Paterson, 2011 BCSC 1728, Justice Blok denied an application to exclude evidence obtained by police inthe execution of a search warrant because of a failure by police to comply with the rules governing the filing of a Form 5.2.

As in thiscase, in Paterson police seized items not listed in the warrant and failed to file a Form 5.2 Report within the time allowed under theCode. It was argued that the failure to file the Report on time rendered the search unconstitutional and a violation of the defendant’s s. 8right. In denying the application to exclude the evidence obtained in the search on this and other grounds, Justice Blok adopted thereasons of Justice Davies in R. v.

Martens, 2004 BCSC 1450 where at para. 273 it was held that: “...except in highly unusual cases, the failure to comply with the search warrant process will result in a breach not only of the authorizingstatute but also a breach of s. 8 of the Charter. It will then fall to a s. 24(2) analysis to determine whether the evidence that resulted fromthe breach was obtained in a manner that infringed the accused person’s Charter rights...” [30] Justice Blok ultimately determined that on balance the actual breach or breaches found in that case relating to the Form 5.2

Report did not warrant the exclusion of evidence. [31] As the Crown notes in its submissions, the courts in British Columbia have for the most part, except in egregious instances ofmultiple Charter violations, declined to exclude evidence on the basis of a failure to comply with the Form 5.2 alone. Again to quotefrom Justice McEwan in R. v. Placek at para. 29: As noted by Davies J. in Martens, cases where evidence is excluded under s. 5.2 are often cases where the context includes a moregeneral disregard of, or multiple breaches of Charter rights. Here there was no such conduct.

The failure to file was inadvertent, and notpart of a pattern of abuse of or disregard for the rights of the accused. While analytically I have felt bound by Martens and Paterson, thiscase is at the more innocuous end of the spectrum, of a kind described as a matter of "administrative procedure" in the pre Grant case ofR. v. Arason & Derosier, (BC CA), [1992] B.C.J. No. 2558 (B.C.C.A.), relied upon by Low J. (as he then was) in R.v. Tam, [1993] B.C.J. No. 781.

In that case, Low J. observed: 35 If I had been persuaded that any s. 8 Charter rights of any of the accused had been breached with respect to any or all of the searches, Iwould have found that admission of the evidence would not bring the administration of justice into disrepute. The searches yielded realevidence. They did not create any evidence that did not already exist. They did not give rise to the creation of any self-incriminatingevidence.

There was no misconduct on the part of the police in obtaining the various warrants or in carrying out any of the searches. [32] The Crown relied on additional cases in which evidence was not excluded pursuant to s. 24(2) of the Charter on the groundsthat police had failed to comply with the Form 5.2 requirements fully or at all. Those include R. v. Steeves, 2002 BCSC 551, R .v.Stervinou, 2005 BCSC 1768, R. v Mitchell, 2013 BCPC 214, in which the court found no s. 8 breach, R. v. Mann, 2012 BCSC 1247,which involved the absence of any Form 5.2 and, finally, R. v.

Pickton, 2006 BCSC 1098. [33] There are, however, other cases relied on by Mr. Carpio in which evidence has been excluded pursuant to s. 24(2) of theCharter in cases involving non compliance with Form 5.2. These include R. v. Poulin, [2004] O.J. No. 1354, a case involving awarrantless search of a vehicle and a failure to file a Form 5.2 Report, and R. v. Ho, 2011 BCPC 186, which counsel for Mr. Carpioacknowledges involved multiple Charter violations and would, for that reason, fall within that category of cases identified by JusticeMcEwan as evidencing a general disregard of the Charter. [34] Mr.

Carpio also relies on R. v. Cunliffe, [2006] O.J. No. 3580 in which Justice Corbett of the Ontario Superior Court issued anorder quashing a warrant for failure to comply with Form 5.2. In Cunliffe, police obtained a warrant to obtain internet accountinformation but neglected to make Form 5.2 Report after executing the warrant. At para 3, Justice Corbett noted as follows: If this had been merely an oversight in this one case, I would not have viewed it as a basis for exercising my discretion to quash thewarrant in the balancing exercise under the Charter. However, that was not the case.

The police evidence was that routinely warrantssuch as these were not returned to the judicial officer who issued them and that the officer in question did not realize that it wasnecessary to do so. This is a fundamental shortcoming in the training and supervision of police engaged in this sort of investigativetechnique. That sort of fundamental misunderstanding about the nature and extent of police search powers and their responsibilities tomake returns to judicial officers is a matter of institutional concern.

In those circumstances it is appropriate that the Court exercise itsdiscretion to quash the warrant. [my emphasis] [35] As this brief review of the authorities indicates, the case law overwhelmingly supports the proposition that in the absence of anyCharter violation other than a failure to comply with Form 5.2, it would be a most unusual case in which the court would excludeevidence. That is the case assuming Arason is no longer good law. [36] If this were an application to exclude pursuant to s. 24(2) of the Charter, the evidence would not likely be excluded. Nevertheless, Mr.

Carpio submits that the evidence ought to be excluded not because of any Charter violation, but because police failedto comply with some of the statutory requirements under s. 487.1(9) of the Code. If this were the case it would follow that in some casesthe remedy for a violation of s. 8 of the Charter in circumstances such as this would not be the exclusion of evidence, while in this casethe remedy for the breach of statute, excluding any Charter considerations, would be the exclusion of evidence. [37] In this case, Mr. Carpio has suffered no prejudice by the failure of police to file a complete Form 5.2.

It was disclosed to himthat police had seized the cash which is the subject of his application. As the court observed in Tam, there is no suggestion that thefailure to articulate the items seized outside the warrant has any consequences for the defence. Also as in Tam, the items are in the sameform today as when they were seized. [38] It is correct, as counsel for Mr. Caprio submits that there is no evidence as to why police did not file the Form 5.2 in full. Iagree with Crown that this evidence was not called because Mr. Carpio did not raise any Charter issues. [39] Mr.

Carpio submits at para. 41 of his submissions that although since the advent of the Charter virtually all breaches involvingsearches have been argued as violations of s. 8 of the Charter, it is unnecessary to do so since noncompliance with a statutory provisionalone is sufficient to issue an order in the nature of certiorari quashing a warrant. [40] The difficulty with this argument is that the Criminal Code itself provides no remedy for a breach of s. 487.1: see R. v. Berube(1999), (QC CA), 139 C.C.C. (3d) 304, at para. 40.

As a statutory court, this court may exclude evidence pursuantto s. 24(2) of the Charter and it may exercise any other power provided by statute. In the absence of any statutory authority, the courthas no jurisdiction to exclude evidence and it has no jurisdiction, not being a superior court having inherent jurisdiction, to issue an orderin the nature of certiorari or mandamus. In short, the remedy sought by Mr. Carpio is simply unavailable in this court. [41] If I am wrong, I would not exercise my discretion to quash the warrant.

At best, on the evidence in this application, there hasbeen an oversight in this case. It is not, as was the case in Cunliffe, a matter of continuous oversights. For that reason, and given thatMr. Carpio has suffered no prejudice as a result of this oversight, I would decline to quash the warrant. [42] The evidence of the Canadian currency seized at the home of Mr. Carpio will be admitted as evidence in the trial, as will the

opinion of Sergeant Andrew. _______________ L.J. Mrozinski