R. v. Parker and McNeil Date:, 2014 BCPC 413

Citation: R. v. Parker and McNeil Date: 20140930 2014 BCPC 0413 File No: 23587-2 Registry: Castlegar IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DALE ELLIOTT PARKER JOANNE CAROL McNEIL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: R. Brown Counsel for the Defendant: (for Dale Elliott Parker) J.S. Gelber Counsel for the Defendant : (for Joanne Carol McNeil) D. White Place of Hearing: Castlegar , B.C.

Date of Hearing: September 30, 2014 Date of Judgment: September 30, 2014 [ 1 ] This is a ruling following a voir dire. The applicants are Dale Elliott Parker and Joanne Carol McNeil. They stand charged together with production of marijuana, possession of marijuana in an amount exceeding 3 kg for the purpose of trafficking, and possession of methamphetamine. In addition, Mr. Parker is charged individually with a second count of possession of methamphetamine. [ 2 ] At the commencement of their trial, Mr. Parker and Ms. McNeil made an application under section 24 (2) of the Canadian Charter of Rights and Freedoms .

They seek an order excluding evidence seized when the police executed a search warrant at [omitted for publication] in Pass Creek, B.C. on February 15, 2013. [ 3 ] The warrant to search at [omitted for publication] was issued by a Judicial Justice of the Peace, on the basis of an Information to Obtain submitted by fax by Constable Jeffrey Roberts. The warrant was issued under

section 487.1 of the Criminal Code . [ 4 ] Constable Roberts summarized the basis for his application in paragraph 34 of the Information to Obtain. He wrote: 34) In

summary, I believe that Marijuana is being produced indoors at the Target Property and I base this on the following:

a) The conditions at this time of the year preclude the outdoor production of plants.

b) I believe that the excessive power consumption at the Target Property can be attributed to the electrical equipment required for the production of indoor Marijuana.

c) I believe that the odour of growing Marijuana that I detect on January 5, January 17, and which I recently isolated with Constable Cavazzon on February 15, is an indicator that Marijuana is being produced indoors at the Target Property. [ 5 ] In the course of the search of the residence, police seized 345 marijuana plants, 7 g of methamphetamine, 18.2 g of hashish, 13 marijuana seeds, 4 marijuana cookies, and drug trafficking and production paraphernalia. [ 6 ] Both applicants allege that their rights to be free from unreasonable search and seizure, as guaranteed by

section 8 of the Charter , were infringed because the search was authorized on the basis of evidence in an Information to Obtain which should be found to be insufficient. [ 7 ] Constable Roberts was the lead investigator and the principal witness on the voir dire. I heard evidence from three other officers who participated in search. They were Constable Fudge, Constable Cavazzon and Corporal Orr.

Finally, I heard the evidence of Constable Wicentowich, who was qualified to give expert opinion evidence. [ 8 ] The applicants did not call evidence. [ 9 ] I am grateful for the careful and thorough submissions of all three counsel. Following consideration of their arguments, the issues appear to me to be as follows: 1) Validity of the search warrant, which requires an analysis of three sub issues:

a) Did the circumstances before Constable Roberts meet the conditions precedent for the use of the tele-warrant provisions in

section 487.1 (1)?

b) Should the reference to a document entitled “BC Hydro 2007 Conservation Potential Review” be excised from the Information to Obtain?

c) Could the Information to Obtain, as amplified on the review, be capable of supporting the issuance of the search warrant? 2) If the search warrant could not have been validly issued, should the evidence obtained in the course of the search be excluded from the trial? This also requires an analysis and balancing of three sub issues, involving the factors set out in Grant , 2009 SCC 32 . Those factors are:

a) the seriousness of the Charter infringing state conduct

b) the impact of the breach on Charter protected interests of the applicants

c) society’s interest in the adjudication of the case on its merits Issue One: the Tele-Warrant [ 10 ] The warrant authorizing the search of the residence was issued pursuant to

section 11 of the Controlled Drugs and Substances Act and

section 487.1 of the Criminal Code . It was issued on Friday, February 15, 2013. After an initial application had been rejected

earlier on that date, Constable Roberts submitted the Information to Obtain upon which the warrant was issued at 7:31 PM. [ 11 ] There was no particular urgency in conducting the search. Constable Roberts testified that the application was made at the time it was made because he and his

section were working night shift that week. [ 12 ] In his Information to Obtain, Constable Roberts included information about the steps that he took to determine whether it would be practicable to appear personally before a justice to make application for the warrant. The information was that he had phoned the Nelson Court Registry at 4:31 PM on February 15 and was told that there was no Provincial Court Judge or Justice of the Peace available to hear the application.

He then phoned the Rossland Court Registry and heard a voicemail indicating that the Registry was closed until the following Monday at 9:00 AM. [ 13 ] Mr. Parker submits that it would not have been impracticable for the police to have waited until the following Monday to seek a warrant to search the residence. Had they done so, he argues, they would not have had to rely upon a warrant issued by a justice in some other part of the province. Ms. McNeil adopts this submission. [ 14 ]

Section 487.1(1) authorizes the submission of any information on oath by telephone or other means of telecommunications where “it would be impracticable to appear personally before a justice to make application for a warrant”.

Section 487.1 (4)(

a) adds a requirement that the information submitted include “a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice”. [ 15 ] In R. v. Erickson , [2003] B.C.J. No. 367 (B.C.C.A.) the Court of Appeal dealt with this issue. Saunders JA stated: “Impracticable” is not a word commonly used as a legal standard. More common words include reasonable, urgent, emergent, exigent, necessary, and reasonably necessary.

Parliament has chosen to use the word “impracticable”, and clothed the process with extra protection for an accused through the requirement to file a transcription of the conversation. It is reasonable to conclude that “impracticable” means something less than impossible and imports a large measure of practicality, what may be termed common sense.

In the circumstances disclosed, particularly the fact that there was no justice of the peace in Kimberly, which is some distance from the community with the nearest source of the search warrant, I see no basis to interfere with the trial judge’s conclusion that the test was met for issuance of a tele-warrant. [ 16 ] All three counsel referred to another decision of the Court of Appeal, a case called R. v. Ling , [2009] B.C.J. No. 267 (B.C.C.A.) . In that decision, the Court of Appeal considered a warrant authorizing the search of a property in Grand Forks.

In the information to obtain the search warrant, the affiant made no reference to having made attempts to determine whether it was impracticable to appear before a local justice. The Court of Appeal ruled that the evidence gathered in the execution of the warrant ought not to have been admitted under section 24 (2) of the Charter of Rights and Freedoms , and entered an acquittal. [ 17 ] In the case at bar, there was evidence of an attempt to locate a local justice. R. v.

Ling is distinguishable on the basis that the Court of Appeal found that the police made no inquiry whatsoever as to the availability of a justice. [ 18 ] The issue is whether waiting from Friday afternoon until Monday morning to apply for the warrant was impracticable. As Saunders JA said, impracticable means something less than impossible and imports a large measure of common sense. At the time that Constable Roberts applied for the search warrant, he believed that he had reasonable grounds to believe that there was evidence of an offence at the place to be searched.

A group of police officers were available to execute the search warrant immediately. Police officers are not expected, as a matter of common sense, to confine the execution of their duties to bankers’ hours. The Honourable Judge Smith said as much in R. v. Johnson , [2005] BCJ No. 2169 at para 14 . I find that, although it would not have been impossible, it would have been impracticable for Constable Roberts to wait until Monday to appear personally before a justice to make the application for the warrant, and that it was appropriate for him to make use of the telewarrant provisions of the Criminal Code .

The BC Hydro Document [ 19 ] In paragraphs 16 and 17 of his Information to Obtain, Constable Roberts wrote the following: 16) In 2007 BC HYDRO published a document entitled “BC HYDRO 2007 Conservation Potential Review.” In their documents, BC HYDRO refers to a study conducted by Marbek Resources Consultants Ltd.; a study which outlined the average electricity used per dwelling for the Southern Interior during the year 2006. I received a copy of this document by email from Sgt.

Wicentowich, who was in charge of the Regional General Investigative Section. 17) In BC HYDRO’s document, the average yearly power consumption for an electrically heated household single-family dwelling was listed as 20,167 kilowatt hours (“KWH”) per year; this equals 55 kWh per day (20,167/365). The average power consumption for a home that is not heated electrically is 29 kWh per day. [ 20 ] Constable Roberts said nothing more in the Information to Obtain about the reliability or source of this document.

Counsel for both applicants suggest, and the Crown concedes, that this document is identical to the document at issue in R. v. Voong , 2013 BCCA 527 . [ 21 ] R. v. Voong involved an investigation and trial that occurred before the investigation in the case at bar. At Mr. Voong’s trial, the warrant was upheld. Mr. Voong appealed his conviction. Later, after the investigation in the case at bar had been completed, the court hearing Mr. Voong’s appeal held that the power consumption comparison evidence based on the document should have been excised from the information to obtain. The evidence against Mr.

Voong was excluded and an acquittal was entered.

[22] In the case at bar, the Crown concedes that paragraphs 16 and 17 of the Information to Obtain should be excised. In addition,the Crown concedes that the comparison of the power consumption at a neighboring residence to the average provided in the BC Hydrodocument in paragraph 18 should be excised, but not the comparison between the neighboring residence and the residence at which thesearch warrant was executed.

Finally, the Crown concedes that the comparison of the power consumption at the residence at which thesearch warrant was executed to the average provided in the BC Hydro document in paragraph 21 should be excised. [23] I accept that those concessions are appropriate, on the basis of the Court of Appeal’s decision in R. v. Voong. References to theBC Hydro document and comparisons to the average power consumption levels referred to in that document will be excised from theInformation to Obtain.

Could the information to obtain, as amplified on the review, be capable of supporting the issuance of the search warrant? [24] In R. v. Bacon, 2010 BCCA 135 at paragraph 25, Donald JA said: The trial judge’s role in reviewing the validity of a search warrant is to consider whether the material filed in support of the warrant, asamplified on review, could support the issuance of the warrant.

While evidence of fraud, material non-disclosure, or misleadinginformation are all relevant to this enquiry, their sole impact is to determine whether there is a basis to support the warrant. [25] In the case at bar, following amplification on the review and the excision of certain information discussed above, theinformation in support of the search warrant amounted to electrical consumption which was higher than the electrical consumption at theneighboring address, and faint odours of marijuana detected on three of the dates on which he patrolled by the residence. [26] In his Information to Obtain, Constable Roberts wrote that power consumption at the residence to be searched was 185.2 kWhper day.

He wrote that power consumption at the account for a neighboring property was 55.7 kWh per day. [27] In response to the reasons for which the justice declined to issue a search warrant on the first application, Constable Robertsprovided additional detail about the neighboring residence. He wrote that the neighboring property was a single residence, approximately100 m from the residence for which he sought the search warrant.

There was no information with respect to the size of the neighboringresidence, or whether it was occupied. [28] On the voir dire, Constable Roberts testified that he had seen smoke coming from the chimney of the neighbouring house. [29] In addition, while under cross-examination by counsel for Ms. McNeil, he was asked whether he would agree that theneighboring residence looked smaller than the residence for which he was seeking a search warrant.

He answered, “it does look a littlesmaller, yes.” The witness answered a leading question by opposing counsel, but the Crown submits that the evidence so adduced mayproperly be used as amplification evidence. [30] In R. v. Voong, supra, the Court of Appeal said that “the police must make their case to the issuing judge” at para 55, and atpara 56, “amplification is not a means to adduce additional information so as to retroactively authorize a search that was not initiallysupported by reasonable grounds”. The Court cited R. v. Araujo, 2000 SCC 65 and R. v. Morelli, 2010 SCC 8. [31] In R. v.

Voong, the Court was considering evidence called by the Crown to support the issuance of the search warrant. In thiscase, the evidence was led by the applicant. In that regard, this case is similar to the case of R. v. Madrid et al, (BCCA), [1994] BCJ No. 1786 (B.C.C.A.), cited in R. v. Morris, [1998] N.S.J. No. 1492 (N.S.C.A.). In R. v. Madrid, at para 75,MacEachern C.J.B.C. said, “In some cases, where counsel’s purpose is to show fraud or non-disclosure, there may be no alternative tocross-examination.

But if the attack is really upon the sufficiency of the affidavit, cross-examining counsel must accept the risk that thecase for admissibility will indeed be ‘amplified.’” [32] The evidence led by the applicant in cross-examination to the effect that the neighboring residence was “a little smaller” isproperly considered as amplification evidence. [33] The answer with respect to the size of the neighboring house was not the only cross-examination about the neighboringresidence. While under cross-examination by counsel for Mr.

Parker, Constable Roberts was asked the following question and gave thefollowing answer, with respect to the neighboring residence: Q. And was there any light lighting up that house that night? A. No. That house always seemed to be dark.

The evidence after amplification on the review was that the residence to be searched had an electrical consumption that was three timeshigher than the neighboring residence, which was a little smaller, may have been heated with wood and always seemed to be dark. [34] On the basis of the information provided to the justice on the second application for a search warrant, as amplified on thereview, I find that there was insufficient detail about the size or use of the neighboring residence to permit it to be used as a comparisonfrom which one might infer that electrical consumption at the residence for which the warrant was sought was unusually high. [35] The evidence with respect to the odor of marijuana was gathered by Constable Roberts on three of the five or six occasions onwhich he patrolled near the residence. [36] On January 5, 2013 Constable Roberts was on patrol with Corporal Orr.

Constable Roberts detected a slight odor of growingmarijuana from the roadway as he drove by. After getting out of his vehicle, both he and Corporal Orr were able to smell what Constable

Roberts described as a faint odor of growing marijuana. [ 37 ] In the early morning of January 17, 2013 Constable Roberts went to the area with Constable Fudge. Constable Roberts again smelled a faint odor of growing marijuana. Constable Fudge was unable to smell this faint odor.

Later that night, the two officers returned to the area but neither of them were able to smell any marijuana. [ 38 ] On February 1, 2013 Constable Roberts and Corporal Orr returned to the area but they were unable to smell any marijuana. [ 39 ] Two weeks later, on February 14, 2013, Constable Roberts returned to the area with Constable Fudge. Neither of them were able to smell any marijuana. [ 40 ] Finally, in the early morning of February 15, 2013, Constable Roberts returned once more to the location, this time with Constable Cavazzon.

Constable Roberts noted what he described as a faint odor of growing marijuana. Constable Roberts said that Constable Cavazzon told him that he could smell a subtle odour of marijuana. When he testified on the voir dire , Constable Cavazzon agreed that the odour was “less than faint.” [ 41 ] In R. v.

Johnson [2005] BCJ No. 2169 (BCPC) the Court said: The law is clear that each case turns on its own facts, but where a strong smell of marijuana order is the primary evidence, an authorizing judge could reasonably conclude that there was reliable evidence of the marijuana being located on the property in question. [ 42 ] In R. v. Cortner , [1998] BCJ No. 3158 (BCSC) , Sinclair Prowse J. upheld the issuance of a warrant on the basis of smell alone.

In that case though, the smell was said to be so strong that the witness could almost taste it. [ 43 ] In the case at bar, the information, as amplified on the review consists of an odour of marijuana that was detected on three of the five or six occasions upon which Constable Roberts patrolled near the residence. The odour was described variously as subtle, faint and even “less than faint”. On one occasion, the officer accompanying him was unable to detect an odor of marijuana that Constable Roberts believed he smelled.

Roughly half the time that Constable Roberts went to the residence, there was no odor of marijuana at all. The investigation was being conducted in a neighborhood in which marijuana had been discovered growing at other addresses in the past. There were other buildings in the general neighborhood, although only one within 100 m. [ 44 ] In the circumstances, a suspicion that marijuana was being grown at a particular place might be justified, but there could not be reasonable grounds to believe that fact.

The information presented to the justice, as amplified by the review, could not justify the issuance of a search warrant. The execution of the search warrant constituted a violation of the applicants’ right to be secure from unreasonable search and seizure. Should the evidence be excluded? [ 45 ] Evidence may be excluded from the trial under section 24 (2) of the Charter when 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. Should the evidence be excluded? Since the decision of the SCC in R. v.

Grant , 2009 SCC 32 , answering this question requires a consideration of three sub- questions. They are:

a) the seriousness of the Charter infringing state conduct

b) the impact of the breach on Charter protected interests of the applicants, and

c) society’s interest in the adjudication of the case on its merits [ 46 ] I conclude that the Charter infringing state conduct was serious, because it involved the search of a home when there was insufficient information upon which to conclude that a search warrant could issue. The matter was a simple investigation and not urgent, yet the police employed a serious investigative tool with very few second thoughts. There was no “bad faith” on the part of the investigating police officers, but the absence of bad faith does not equate to good faith.

I find that the first stage of the enquiry favors exclusion of the marijuana plants and growing equipment. [ 47 ] The second question is the impact of the breach on the Charter protected interests of the applicants. The applicants were the residents of the home that was searched. The unauthorized search of a private residence is unquestionably a serious intrusion. As the Court of Appeal said in R. v.

Voong , supra, “The more serious the incursion on the accused’s Charter -protected interests, and the extent to which the breach undermined those interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.” The impact of the breach also favors exclusion of the marijuana plants and growing equipment. [ 48 ] The third question involves a consideration of society’s interest in adjudication of the case on its merits.

The factors to be considered include the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the offence, although that consideration has the potential to cut both ways. In the course of the search, police seized 345 marijuana plants, 7 g of methamphetamine, and drug trafficking and production paraphernalia. That is reliable evidence which is crucial to the Crown’s case.

The offence of trafficking in marijuana is serious. [ 49 ] In the case at bar, I am satisfied that the evidence should be excluded because its admission would, in the long-term, devalue and would diminish the integrity of the administration of justice, and impact the public’s confidence in it. Society’s interest in an

adjudication of this case on its merits does not outweigh the impact of the breach on Ms. McNeil and Mr. Parker’s Charter -protected rights, or the seriousness of conducting a search of their home in the absence of reasonable grounds. [ 50 ] The evidence will be excluded. ___________________________________ The Honourable Judge R. Hewson