R. v. Cowley Date:, 2013 BCPC 308

Citation: R. v. Cowley Date: 20131017 2013 BCPC 0308 File No: 23503 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PHILLIP BRUCE COWLEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MROZINSKI Counsel for the Crown: H. M. McSheffrey QC Counsel for the Defendant: D. W. Skogstad Place of Hearing: Nelson , B.C. Date of Hearing: March 12, June 12, 2013

Date of Judgment: October 17, 2013 Introduction [ 1 ] Phillip Bruce Cowley pleads not guilty to charges that on or about November 17 th , 2011, he did unlawfully produce marijuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act ( CDSA ), and that he did unlawfully possess marihuana in an amount exceeding 3 kilograms for the purpose of trafficking contrary to s. 5(2) of the CDSA . These charges arise out of two searches conducted on Mr. Cowley’s property (the “Property”), pursuant to two search warrants, in which various evidence including marihuana plants was seized. [ 2 ] Mr.

Cowley seeks an order excluding the evidence obtained by police from the Property pursuant to s. 24(2) of the Charter on the grounds that its admission would bring the administration of justice into disrepute. Specifically, Mr. Cowley submits that conduct of police in this case was subversive in that they obtained the evidence on which these charges are based by trespassing on his property before obtaining an initial warrant to search his residence and barn. While on the Property pursuant to their first warrant, Mr.

Cowley submits that police engaged in a further trespass to obtain grounds to seek their second warrant after which the bulk of evidence at issue in this application was found. [ 3 ] Mr. Cowley raises other objections to the search warrants and they are as follows: first, that the incorrect address on the warrants coupled with Mr.

Cowley’s semi-literate status makes the searches egregious: second, that the applicant, Constable Roberts, did not comply with s. 487.1 of the Code by stating why it was impracticable for him to attend at the Grand Forks Registry to make an in- person application for his first search warrant; thirdly, that the ITO contained information from the RCMP PRIME data base that is not entirely correct; and fourthly that police did not disclose to the Judicial Justice of the Peace (“JJP”) the presence of other houses near the Property that could have been the source of the odour of marijuana. [ 4 ] The hearing of this voir dire concluded on June 12, 2013 with leave granted to the parties to provide written submissions on July 19, August 9 and September 9, 2013.

These are my written reasons on this voir dire . The Incorrect Address [ 5 ] The warrants issued in this case describe the Property as having a civic address of 1610 Mannix Road, Castlegar, British Columbia. While Mr. Cowley admitted to using 1610 Mannix Road as his address from time to time, the formal or official address for the Property is 1610 Highway 3, Castlegar, British Columbia. [ 6 ] Mr. Cowley raised this issue in an earlier voir dire in which he sought a ruling that the warrants were invalid because they misidentified his address. In a ruling dated November 27, 2012, I held the warrants were valid.

Despite that ruling, Mr. Cowley now submits that the fact police got the address wrong on both search warrants is so egregious, particularly given his semi-literate status, that the evidence ought to be excluded. In reply submissions, Mr. Cowley directly invited the court to revisit its earlier decision based on what Mr. Cowley characterized as new evidence – that being the fact the warrants referred to Castlegar. Mr.

Cowley now argues his residence is not in Castlegar and submits that fact makes the searches all the more egregious. [ 7 ] In my view, at this juncture I am functus in regard to the question of the facial validity of either warrant. However, I would note that in the first voir dire , Mr. Cowley took the stand and testified that the civic address for his Property was not 1610 Mannix Road, Castlegar, as set out in each of the warrants but rather, was 1610 Highway 3, Castlegar. Moreover, that address appears in at least one of the bills sent to Mr.

Cowley’s residence, shown in photograph number 18 of Exhibit D. [ 8 ] Even if I am not functus, I would not exclude the evidence on this ground whatever the state of Mr. Cowley’s ability or inability to read. The Telewarrant [ 9 ] In Constable Roberts’ first ITO, he swore it was necessary to obtain a telewarrant because he had been advised there was no Judge or JJP available in either Castlegar, Rossland or Nelson on November 16 to hear his application in-person.

Though he applied for his search warrant on November 16, Constable Roberts sought authority to search the Property between 08:00 am to 8:59 pm on November 17, 2011. Constable Roberts testified that he needed this extra time between the time of obtaining the warrant and its execution to plan for the search. [ 10 ] In Constable Roberts’ second ITO, he swore to being advised by the Court Registry in Nelson that no judges or JJP’s were available in Nelson, Castlegar or Rossland as all were attending a conference.

Clearly this would have applied to the Grand Forks Registry as well which would explain why the focus of Mr. Cowley’s argument on this ground has been on Constable Roberts’ first ITO. [ 11 ] Mr. Cowley submits that on November 16 Constable Roberts failed to comply with s. 487.1 of the Code because he did not check to determine whether a JJP was available in Grand Forks, a short drive from Mr. Cowley’s Property, before seeking a telewarrant.

He also submits that police had a duty to attempt to determine whether there was a JJP in the area on the day of the search and, if so, to then apply or re-apply for a warrant in-person. [ 12 ] I agree with Crown that it would be contemptuous of police to have applied for and obtained a telewarrant on November 16 and to then have applied for a second warrant on November 17 without having executed the first. Mr. Cowley’s submissions really amount to an argument that police should not have sought a warrant on November 16 to search the Property on November 17. In my view, once

police obtained the warrant on November 16, there could have been no possible obligation to seek a second warrant before conducting the search the next day. [ 13 ] I have been provided with no authorities to suggest that police cannot seek a warrant to search at a future point in time. How far ahead in time would be a matter for the authority issuing the warrant to decide.

In this case, I see no basis on which this court could interfere with the decision of the JJP to issue the first warrant and as such I can find no basis to interfere with the warrant on the grounds police did not seek a second warrant on November 17, 2011. [ 14 ] This then leaves the question whether police failed to comply with the telewarrant provisions under s. 487.1 of the Code and, if so, whether the warrant must be found invalid on that ground. [ 15 ]

Section 487.1(4) of the Code does provide that an information submitted by telephone or other means of telecommunication shall include a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice. In this case, Constable Roberts made no such statement regarding the Grand Forks Registry, though he did for the Registries in Nelson, Castlegar and Rossland. [ 16 ] In R. v.

Ling , Judge Carlgren’s decision to quash a warrant on the grounds that police made no inquiry to determine the availability of a Judicial Justice of the Peace in Grand Forks was upheld on appeal: R. v. Ling , [2009] BCJ No. 267 . In Ling , the police made no inquiries at any Registry. Mr. Cowley submits that this case is indistinguishable from Ling . [ 17 ] The Crown submits that there is no obligation on Constable Roberts to either have driven to Grand Forks or phoned that Registry to inquire about the availability of a Justice authorized to issue a warrant before calling the JP Centre.

In support, the Crown relies on R. v. Erickson , 2003 BCCA 693 , R. v. Phillips , 2004 BCSC 1797 , and R v. Placek , 2012 BCSC 1175 . [ 18 ] In R v. Erickson , the question was whether an ITO complied with s. 487.1(1) of the Code as the informant simply wrote that it was impracticable to obtain a warrant in person “because there are no local J.P. services available.” The Court of Appeal upheld the trial judge who found on the evidence that it was in fact impracticable for the officer to appear personally before a justice of the peace to seek a warrant in Kimberley at 11:39 pm.

In Erickson , at a minimum, the officer had given an explanation as to why he thought it was impracticable to try to find a justice of the peace at that hour in that part of the Province. [ 19 ] In R. v. Phillips , Mr. Justice Bernard considered an ITO in which an officer stated that it was impracticable to make an in- person application for his search warrant because there was no Provincial Court Justice or Justice of the Peace available at the Surrey Provincial Court at that time. As Mr.

Justice Bernard noted at para 21, Phillips was not a case in which the applicant had failed to provide a statement as required. [ 20 ] In this case, what is at issue is whether Constable Roberts failed to comply with s. 487.1 by failing to provide a statement as to why it was impracticable for him to attend in person at the Grand Forks court registry to make his warrant application. Phillips does not really address that issue. [ 21 ] It is however an issue that is addressed directly by Mr. Justice McEwan in R. v. Placek , 2012 BCSC 1175 .

The question in Placek was whether the applicant had adequately justified his resort to a telewarrant by calling the Nakusp Court Registry and not the Court Registries in Nelson, Castlegar, or Rossland. It is virtually the same question at issue herein except in this case the applicant called the Registries in Nelson, Castlegar and Rossland and he is faulted for not calling the Registry in Grand Forks to determine if a JJP was available there to hear his application. [ 22 ] As in this case, the accused in Placek relied on the reasons of the Court of Appeal in R. v. Ling . [ 23 ] Mr.

Justice McEwan’s reasons for refusing to strike out the warrant on the grounds the officer in Placek did not call other Registries in the West Kootenay are set out at paras. 4 through 10 of his decision. Of particular note is para. 9 in which Justice McEwan comments on the Ling decision, and the court’s comments that the officer in Ling made no inquiry whatever as to the availability of a JJP at the Grand Forks Court house: The Court of Appeal appears to have understood that justices are actually available in one place or another in the Kootenays.

Corporal Hill, the officer who prepared the Information to Obtain in this case, testified that this was his first attempt to secure a "telewarrant" in the Kootenays, but that he had only once or twice out of "hundreds" of occasions in his career as a police officer participated in an in- person hearing on a warrant. In the circumstances, I do not think Cpt. Hill can be faulted. The problem is that the present system is designed to make getting before a justice impracticable.

It does nothing for the repute of the administration of justice to behave as if this is not so, and to ground the courts' legal analysis on a question of whether the officer has made a convincing show of the fiction that the system still operates as contemplated in the Code . Accordingly, I will not invalidate the warrant on the grounds that the officer did not show enough effort in establishing that justices known to be generally unavailable were, in fact, unavailable. [ 24 ] Given that Justice McEwan refused to quash a search warrant on a near identical argument, I find I am bound by his reasoning.

I would not find the first warrant invalid on this ground. The Information in the ITO [ 25 ] Mr. Cowley takes issue with some of the information provided in the ITO and as such his concerns must be addressed - though it is the case that for the most part, Mr. Cowley does not seek to expunge information, nor, but for the question of odour, does he suggest police failed to disclose significant information. [ 26 ] The circumstances giving rise to the search in this case began, as Mr. Skogstad submits, as far back as June, 2011.

On that date, Constable Roberts, the officer who swore the ITO in support of both warrants in this case, received documentation from a fellow officer, Constable Orr, related to properties in the Castlegar area that Constable Orr had investigated for offences under the CDSA. As the Crown noted in its submissions, there is no evidence any of these other properties were located near the Property.

[ 27 ] Among the documents provided to Constable Roberts were power records for 1610 Mannix Road, Castlegar. Constable Roberts believed this to be the proper civic address for the Property and ultimately obtained two warrants to search at that address as I have noted. He reviewed those power records and formed the view that they showed considerable power consumption. The records were in the name of Tawny Tarr, a one time common law spouse of Mr. Cowley. Ms. Tarr was apparently licensed to grow marijuana in June, 2011 though this fact was not noted in the ITO.

There is, however, no evidence that Constable Roberts knew this and deliberately failed to disclose it to the JJP. [ 28 ] Constable Roberts also queried the address of the Property on the police “PRIME” data base. The PRIME file stated that on March 13, 2005, Mr. Cowley had refused to allow the Fire Department access to the Property to extinguish a fire. It stated also, according to the Fire Chief, that once Mr. Cowley learned that police were en route to the Property, he ran and closed all the doors to a shed. [ 29 ] Mr. Cowley denied this description of events as stated in the PRIME database.

He testified that he had called the Fire Department to the Property to assist in what might have become an out of control fire of a building he was intentionally burning. When the Fire Department attended, he refused them access as he did not want to be charged for their services. He testified that when they said they would phone the police, he let them on his property. [ 30 ] Mr. Cowley denied running around closing the doors on the Property. He admitted that one door to the shed was open and it was possible to look inside where a number of motorcycles were visible. Mr.

Cowley testified that he reasoned at the time that if police saw the motorcycles “there would be a bunch of trouble about it” as police had apparently accused him of stealing a motorcycle. In the end, it appears that Mr. Cowley may have allowed police on the Property but it would appear also that he was reluctant to do so and that would have been evident to the firemen present. It would also appear that Mr. Cowley did shut his shed door as reported. [ 31 ] The PRIME entries are but one aspect of the ITO application. Clearly on their own they could not support a search warrant.

They are not entirely reliable but nor can it be said they are entirely unreliable. So long as they are not treated as gospel, and there is no evidence that was the case here, the PRIME files can provide some context or background. I have no doubt that the authority issuing the warrants knew of the frailties of the PRIME database. I cannot say that Constable Roberts unreasonably relied on them, nor is there any evidence that he misrepresented what was stated in the files. [ 32 ] Constable Roberts checked the power records for the Property on November 15, 2011.

Those records, which showed two separate accounts, one for a barn and one for Mr. Cowley’s residence, demonstrated, based on the officer’s calculations, that the power consumption in Mr. Cowley’s residence was 1.87 time higher than an average, comparable household. The use in his barn was 1.36 times higher than average use in an electrically heated single family dwelling. [ 33 ] Mr.

Cowley does not take serious issue with these figures except to argue that once police noticed a third building on his property not referred to in the power records, namely his garage, they should have determined that this provided an explanation for the above average power usage and left the property. I will return to this issue below. [ 34 ] Though submissions were made regarding the PRIME information, the absence of Ms.

Tarr’s licence in 2011 and the power records, it is not seriously argued that Constable Roberts intentionally misled the JJP, or that information concerning the PRIME or power records should be redacted. Mr. Cowley’s real issue seems to lie with Constable Roberts’ assertion in the ITO that the Property was geographically isolated and that the odour of marijuana he and a fellow officer detected could only have come from his Property. Mr. Cowley submits that Constable Roberts either intentionally misled the JP or was grossly negligent in not noticing other residences or structures in the vicinity.

Efforts to Isolate the Odour of Marijuana to the Property [ 35 ] On November 15, 2011, the same day he checked power records for the Property, Constable Roberts travelled with Constable Fudge, also of the Castlegar RCMP, to the area along Highway 3 adjacent to the Property. The windows of their vehicle were rolled down. In his ITO, Constable Roberts swore that he and Constable Fudge detected a moderate odour of growing marijuana as they drove by the Property.

Constable Roberts then outlined in the ITO the steps he and Constable Fudge took to determine whether that odour was coming from the Property. [ 36 ] In the voir dire , Constable Fudge testified that Constable Roberts dropped him off along the shoulder of Highway 3 at a location southwest of the Property. He then walked back in a north easterly direction along the highway past the Property. At some point, when traffic came his way, he stepped onto the shoulder of the road. [ 37 ] As he walked by the Property, Constable Fudge lit a cigarette lighter to determine the direction of the wind.

He ascertained that it was blowing from the west, and travelling directly from the Property toward his location on the highway. On this occasion, Constable Fudge described the odour as strong. [ 38 ] At some location to the north of the Property, Constable Fudge rejoined Constable Roberts and the two drove past the Property twice more.

In one such instance, Constable Roberts re-acquired a moderate odour of marijuana he felt was coming from the Property. [ 39 ] Though it is not entirely clear on the evidence whether this occurred before or after Constable Fudge walked along the highway, and nothing turns on this, the officers turned off the highway onto the Merry Creek Forest Service Road which wound in behind the Property. Constable Fudge recalled they drove approximately two kilometres before turning back. Constable Roberts recalled it was no less than two kilometres.

As they drove along the road with the windows in the vehicle rolled down, neither saw structures nor properties that could account for the odour they detected along the highway. Neither detected an odour of marijuana anywhere along the road. [ 40 ] Mr. Cowley testified that a Mr. Doug Bradshaw lived about a quarter of a kilometre up the Merry Creek Road. Mr. Cowley suspected that Mr. Bradshaw’s driveway would have been ploughed. Mr. Cowley did not know and could not say if Mr. Bradshaw grew marijuana.

[ 41 ] Constable Roberts did not disclose to the JJP the presence of either Mr. Bradshaw’s residence or other residences that are shown in the photograph entered as Exhibit H in this voir dire . I do not doubt the officers’ testimony that neither saw nor detected any other property in the vicinity that could account for the odour other than Mr. Cowley’s Property. This question in my view comes down to a matter of credibility. Both officers were cross examined on their observations and their efforts to isolate the odour. Whether other homes were in the area, such as Mr.

Bradshaw’s or across the highway, I accept that as the officers drove up Merry Creek Road which wound in behind the Property they satisfied themselves there was no other residence or structure that could account for the odour they had detected in front of the Property. I do not find Constable Roberts misled the JJP or failed to disclose evidence known to him such that the evidence of the odour outside the Property must be excised from the ITO. The First Alleged Trespass [ 42 ] Mr.

Cowley submits that when Constable Fudge got out of the police vehicle and walked along the highway he was, at some point, trespassing on the Property. Photographs of a portion of Highway 3 outside of the Property, on which Constable Fudge walked, were entered into evidence. In one such photograph, marked as photograph number 13 of Exhibit D in the voir dire , Constable Fudge identified the approximate location on the highway where he left the police vehicle and walked north towards Merry Creek Road. [ 43 ] Photograph number 13 depicts the beginning of Mr.

Cowley’s driveway as well as the Merry Creek Road at a distance. Mr. Cowley submits that it is evident from this photograph that Constable Fudge was trespassing on the Property as he walked down the highway toward the Merry Creek Road. Mr. Cowley testified that his property line is located thirteen feet from the centre line so that “most” of what is shown in photograph 13 is his property. [ 44 ] I cannot be sure what Mr. Cowley means by “most” of what is shown in the photograph as being his. It is obvious that a great deal of what is shown in the photograph is a public highway with a shoulder area.

There is, to be sure, a ditch but Constable Fudge testified that he walked on the highway until he heard a vehicle and then along the shoulder of the highway. His evidence that he did not ever walk onto or into the ditch went unchallenged. As such, I do not find the evidence sufficient to conclude that Constable Fudge trespassed on Mr. Cowley’s Property as he walked by it on November 15, 2011. [ 45 ] I find no trespass with regard to the efforts of Constable Roberts and Constable Fudge to investigate Mr. Cowley’s Property on November 15, 2011.

Additionally, I find no evidence of a failure to disclose material facts or to otherwise provide full and frank disclosure to the JJP in the first ITO. I find the first warrant was valid and lawfully authorized police to be on the Property on November 17, 2011 to search Mr. Cowley’s residence and his barn. [ 46 ] It follows that Mr. Cowley’s application to exclude evidence lawfully obtained pursuant to the first warrant is denied. The evidence of the marijuana plants and other grow related items found in the barn are admitted as evidence in the trial.

The Second Alleged Trespass [ 47 ] This then brings me to what is the substance of Mr. Cowley’s application to exclude evidence. His fundamental objection to the evidence the Crown seeks to enter in this case, the marijuana plants and growing equipment found in his garage, is that police obtained this evidence by breaching his s. 8 Charter right against unreasonable search and seizure while they were on his property executing the first search warrant. [ 48 ] When police arrived at Mr. Cowley’s Property, he and his teenage son were present. Both peacefully surrendered. Mr.

Cowley, who was inside his residence, was provided a copy of the first warrant and police attended at his barn to begin their search. There they found fourteen marijuana plants in poor condition, yet still alive and bearing green leaves. Along with the plants, police found items associated with a marijuana grow operation. There was no evidence of a marijuana grow operation inside Mr. Cowley’s residence. [ 49 ] Before executing the first search warrant, police were not aware of a garage located on the Property behind Mr. Cowley’s residence.

However, at various times during the search, police officers either noticed the garage or pointed it out to other officers. [ 50 ] Both Constable Roberts and Constable Fudge testified that they had not seen the garage from the road during their investigation, though each had seen both the house and barn. In addition, because of the direction in which he entered Mr. Cowley’s residence, Constable Roberts testified that he had not even seen the garage before he had arrested Mr. Cowley and transported him to the Castlegar RCMP detachment office.

He first saw the garage when he returned to the Property after having lodged Mr. Cowley in police cells. [ 51 ] Constable Roberts arrived at the Property on the day of the search with Constable Plotnikoff, another member of the Castlegar RCMP. Constable Plotnikoff had been assigned earlier that morning to drive Constable Roberts to the Property and to transport a prisoner back to Castlegar if that became necessary. [ 52 ] Constable Plotnikoff testified that he and Constable Roberts parked below the house and walked up an embankment whereupon they were met by Mr. Cowley’s son. Constable Roberts advised Mr.

Cowley’s son what was occurring and the three proceeded into Mr. Cowley’s residence. Constable Plotnikoff testified that he saw Constable Roberts serve the warrant on Mr. Cowley and recalled that Mr. Cowley was trying to find a place for his son to go to. Constable Plotnikoff testified that he remained inside Mr. Cowley’s residence with Constable Roberts, Mr. Cowley and his son, until he left with Mr. Cowley and Constable Roberts to transport Mr. Cowley to Castlegar. [ 53 ] He had no clear recollection as to when he became aware of Mr. Cowley’s garage. He thought it could have been before he left to transport Mr.

Cowley to Castlegar or after he returned to the Property with Constable Roberts. He recalled only handing a flashlight to an officer and watching that officer look under the garage door which was slightly ajar. He did not recall seeing any other door of the garage open. [ 54 ] Mr. Cowley testified that before he left his home for police cells in Castlegar he saw an officer in uniform look inside a side door to his garage which he had left partially open as he went back and forth between his garage and home doing some home repairs.

[55] The evidence in this voir dire which I accept is that only one of the officers attending at the search that day was in uniform. That officer was Constable Plotnikoff. Though it was never directly put to Constable Plotnikoff, it is clear from his evidence that he didnot recall seeing any door of the garage open but for the large sliding door which he saw only when he returned to the Property aftertransporting Mr. Cowley to Castlegar.

I am not prepared to find on the evidence that Constable Plotnikoff looked through a door he didnot see open, particularly given his testimony, which went unchallenged, that he stayed with Constable Roberts and Mr. Cowley insideMr. Cowley’s residence before transporting Mr. Cowley to Castlegar. [56] I agree also with the submissions of Crown that it seems unlikely a side door had been open as Mr. Cowley testified given thatpolice had to use a flashlight to see inside the garage through the narrow opening under the sliding garage door. To find for Mr.

CowleyI would have to assume that Constable Plotnikoff not only looked through the side door, but turned off the garage light (which I agreehad to have been on if Mr. Cowley’s evidence that he was working in the garage that morning is to be believed), and closed the door andneglected to tell his fellow officers about this causing them to peer under the sliding garage door. It stretches the imagination to find inthis regard for Mr. Cowley. There was nothing in the testimony of Constable Plotnikoff to suggest he was lying to the court. He gavehis evidence clearly, directly and with no hesitation.

Moreover, as I have noted, it was never put to him that he peered through a sidedoor of the garage. [57] Mr. Cowley bears the onus of proving a breach of his Charter rights and in regard to the allegation that Constable Plotnikoffunlawfully searched his garage through a side door entrance, I find he has not met the onus. [58] There is of course no question that before seeking the second warrant, Constable Roberts did look into Mr. Cowley’s garagethrough a small space under the slightly ajar sliding garage door.

He saw no evidence of marijuana grow operation. [59] However, by the time Constable Roberts and Constable Plotnikoff had returned from Castlegar, Constable Fudge had alreadywalked around the perimeter of the garage and detected a strong odor of marijuana, particularly as he moved a board from the side of thegarage exposing some venting.

Constable Roberts was advised of this, and after looking under the slightly ajar garage door, he toowalked the perimeter of the garage and noted an odour and venting outlets. [60] Based on the odour, his observations of the venting, footprints in the snow leading from the garage to the barn where policelocated the fourteen marijuana plants they believed had recently been placed there, and the electrical consumption which police believedrelated to a grow operation in the garage, Constable Roberts sought and obtained a second warrant to search the garage.

Clearly the bulkof the evidence obtained in support of Constable Roberts’ second ITO was obtained when police searched the perimeter of Mr. Cowley’sgarage. [61] The question is whether police breached Mr. Cowley’s s. 8 rights against unreasonable search and seizure by searching theperimeter of his garage, and moving the board so as to expose vents. [62] The Crown submits that police were acting legally. First it is submitted that the authority to search the residence and barnnecessarily implied an authority to enter upon and search lands immediately associated with those buildings.

Otherwise, submits theCrown, police could not have moved from the Property line to either building or from the house to the barn. [63] The Crown submits further that since police were lawfully present in the immediate vicinity of the house and the garage, theyhad lawful authority to approach and inspect the vents and outside walls of the garage.

The Crown likens this case to that in R. v.Kwaitkowski, 2010 BCCA 124, wherein the court found at para. 38 that the accused, who did not testify, had established no expectationof privacy in a “translucent non-residential structure located a long distance from the residence with no actual road leading to it.” [64] In this case, Mr. Cowley testified that he was using his garage, located within a few feet of his residence that day for awoodworking project. It was clearly a location he used, and that he owned. I do not agree that Mr.

Cowley’s garage, directly adjacent tohis residence, is the equivalent of a greenhouse located in a distant field. [65] I am satisfied that Mr. Cowley did have a reasonable expectation of privacy in his garage, and of the perimeter of his garage. [66] Mr. Cowley submits that this case cannot be distinguished from the reasoning of the court in R. v. Kokesch, (SCC), [1990] SCJ No. 117. There, the entire court found that police had breached the accused’s s. 8 Charter right when they conducteda perimeter search of his property without any authority.

The court split in Kokesch only on the question of remedy. [67] In this case, police were on Mr. Cowley’s property lawfully pursuant to the first warrant. They were entitled to search hisresidence and his barn, and the perimeter of each. They were clearly entitled to travel from the perimeter of the property to the house andbarn, and even in between. However, the garage was not on the way from the house to the barn.

It was located behind the house; so farin fact that neither Constable Roberts nor Constable Plotnikoff saw the garage, or detected any odour coming from the garage thoughthey were in the residence right beside the garage. [68] It is apparent that once police searched the barn and residence, and saw footprints from the garage to the barn, they suspectedthere may have been a grow operation in the garage.

Constable Fudge testified that he detected an odour of growing marijuana comingfrom the garage but it was not clear on the evidence where he or the officer he was with were standing when they detected this odour. [69] Because they suspected a grow operation could have been in the garage, police searched the perimeter of that building and indoing so moved a board which exposed the vent system in the garage. It had the effect also of allowing out a strong odour of marijuana. [70] Police knew, as they testified, that they could not search the garage because they did not have a warrant.

Yet, each officer feltentitled to search the perimeter of the garage for no reason other than to investigate their suspicion of a grow operation. [71] These searches were not incidental to the searches of Mr. Cowley’s residence or his barn. They were done in aid ofinvestigation and not further to a warrant. While police were lawfully on Mr. Cowley’s Property, they were not lawfully entitled tosearch the perimeter of his garage; there were no safety reasons for this search; it was not on the way to any building police were entitled

to search; and it was not necessary to search the perimeter of the garage in order to search the residence. Police knew when they searched the perimeter of the garage that there was no marijuana grow operation in Mr. Cowley’s residence. [ 72 ] I find, bearing in mind the reasons in R. v. Wilson , 2011 BCCA 252 and R. v. Cheng , 2010 BCCA 135 , that police could not have obtained the second warrant without the evidence of the odour of marijuana coming from the garage and the presence of the venting. This evidence was obtained by what I have found to have been an unlawful search of the perimeter of Mr.

Cowley’s garage. It cannot form part of the ITO and, as noted, without it, no JJP acting judicially could have issued a search warrant for the garage. As such, the search of the garage was warrantless and prima facie unreasonable. [ 73 ] Mr.

Cowley has established a breach of his s. 8 right against unreasonable search and seizure. [ 74 ] It remains to be determined whether the evidence ought to be excluded under s. 24(2) of the Charter . [ 75 ] As counsel acknowledges, in the case of a warrantless search the Crown bears the onus of proving, on balance, that the admission of evidence obtained by a breach would not bring the administration of justice into disrepute.

At para. 31 of its submissions, the Crown has made a desultory argument that the evidence ought not to be excluded but that is prefaced by the comment that the matter of exclusion must be dealt with outside this voir dire . [ 76 ] Although I would have preferred to have addressed the question of remedy in these reasons, it is apparent the Crown was left with the impression that it could argue the question of remedy if this court found a breach. As such, and despite Mr. Cowley’s extensive arguments on s. 24(2) it appears that the issue of remedy must await a further submission by the Crown. _________________ L.J.

Mrozinski