R. v. Kovesdi and Luzny, 2018 BCPC 148

Citation: R. v. Kovesdi and Luzny 2018 BCPC 148 Date: 20180507 File No: 23729 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FRANK TOTH KOVESDI AND BETTY ANN LUZNY RULING ON APPLICATION OF THE HONOURABLE JUDGE W.F.M. JACKSON Counsel for the Crown: A. Murray Counsel for the Accused: M. Murphey Counsel for B. Luzny : I. Lawson Place of Hearing: Smithers , B.C. Date of Hearing: April 24, 2018 Date of Judgment: May 7, 2018

History [ 1 ] This is a ruling on a notice of application and constitutional issue filed by the accused Betty Ann Luzny on October 5 th , 2017. The accused Frank Toth Kovesdi subsequently joined in the application.

The application is for a finding that the search of the residence of the accuseds was unlawful and unreasonable contrary to sections 7 and 8 of the Charter of Rights and Freedoms . [ 2 ] The accuseds are jointly charged with possession of cocaine for the purpose of trafficking, possession of psilocin for the purpose of trafficking and possession of a prohibited weapon, a nunchaku, all on November 4 th , 2016. [ 3 ] A voir dire was held for the application. [ 4 ] The search warrant in question was issued by telephone. [ 5 ] In the voir dire, four RCMP officers and both accuseds testified.

Testimony [ 6 ] The first officer was Cst. Djuric. He was the exhibit custodian. He testified that he had the search warrant in a secure tote-bag in his police vehicle outside the residence of the accuseds. He added that the plan was for him to produce the search warrant to the accuseds after the residence was secure.

That was for police safety. [ 7 ] In cross-examination he testified that he did not bring the search warrant with him into the residence as things moved too quickly because the officers had to secure an unexpected male just outside the entrance to the residence, then immediately after secure two other unexpected males inside the vestibule and deal with the elderly mother of Mr. Kovesdi who was found in the kitchen which was immediately adjacent to the vestibule. [ 8 ] Cst. Djuric testified that, in the kitchen, the accused Kovesdi was turned over to him to arrest.

He added that he arrested him for possession for the purpose of trafficking. He quoted Mr. Kovesdi as responding “Ya” to the question if he understood. He testified that he then read Mr. Kovesdi

section 10 of the Charter of Rights and the “Brydges” information. He stated that Mr. Kovesdi indicated that he understood. In response to his question, “Do you want to call a lawyer?” the constable quoted Mr. Kovesdi as saying “You bet”. Finally, the constable stated that Mr. Kovesdi acknowledged that he understood the police warning. [ 9 ] Cst. Djuric testified that he had no memory of Mr. Kovesdi asking to see the search warrant but if he had been asked he would remember it. The officer read him the search warrant after a telephone hearing with a JP at 8:47 that evening.

The officer stated that the entrance to the accuseds’ residence occurred around 11:00 p.m. the day before. He had no recollection of ever showing the search warrant to the accused Ms. Luzny. [ 10 ] Cst. Djuric testified that after the residence was secure he brought the search warrant into the residence. He testified that he was the last officer to leave the residence after it had been searched and that he had placed copies of the search warrant at three sites in the residence.

Those sites were on the kitchen fridge (photos 18 and 19), on a laptop in the bathroom (photos 30 and 32), and on a laptop in the master bedroom (photo 33). Photographs of the three copies of the search warrant left at the three sites were referenced from Exhibit B. [ 11 ] Cst. Reid then testified that he was part of the entry team during the search of the accuseds’ residence. He stated that upon entry he yelled, “Police, Search Warrant”. The residence was cleared room by room from the entrance to the final room, which was the master bedroom. The two accused were found in the master bedroom.

He stated that both accuseds were advised they were under arrest for possession for the purpose of trafficking and simple possession. The accuseds were then instructed to lie on the floor on their stomachs and were hand-cuffed. [ 12 ] In cross-examination, Cst. Reid stated that he was at the accuseds’ residence for approximately six hours and left at 6:00 a.m. November 5 th , 2016. It was also suggested to Cst. Reid that both accuseds had asked to see the search warrant. He responded that if that had happened he would have noted it and had someone produce the warrant.

The officer continued that the accused Luzny was swearing and screaming that she wanted to get up but that was not done as there were potential weapons such as knives, scissors and what was thought to be a firearm in the room. Later in cross-examination he stated that he had no recollection of Ms. Luzny saying, “I want to see your fucking warrant”. [ 13 ] In cross-examination Cst. Reid stated that he had yelled “Police, search warrant approximately four or five times as he proceeded to “clear” the rooms. The last time he yelled that was at the entrance of the master bedroom. [ 14 ] Cst.

Moleski testified that he arrived at the residence at 11:08 p.m. November 4 th , 2016 and was involved in securing the persons found outside the residence door and inside the vestibule and kitchen. He transported Ms. Luzny to the detachment. [ 15 ] At the detachment he asked Ms. Luzny if she wanted a lawyer. He quoted Ms. Luzny as saying “Lawson”. Accordingly, he phoned Mr. Lawson’s office and left a message. He added upon telling Ms. Luzny that he had left a message he asked if she wanted other counsel and she declined. She was then lodged in a cell. [ 16 ] At 2:10 a.m.

November 5 th , 2016 he returned to the residence and assisted in the search. The search was completed at 5:44 a.m. [ 17 ] Cst. Moleski had no memory of showing either accused the search warrant. He also stated that he had no recollection to being

asked to see the search warrant but would recall if he had been asked to produce the search warrant. [18] In cross-examination by Mr. Murphey Cst. Moleski stated that he had no firm memory of whether someone asked to see thesearch warrant and that it was possible that someone could have asked to see the search warrant. [19] Cst. Niazi testified that he was assigned as the “rear guard” for the entry. In cross-examination he testified that he read Ms.Luzny her Charter rights and police warning.

His noted that responded to the question if she wished to speak to counsel, “Yes fuckers”. [20] In cross-examination by Mr. Murphey, Cst. Niazi stated that he had no note of either accused asking to see the search warrantand it would be his practice to note such a request. However, he added that he was not certain that the accuseds did not ask to see thesearch warrant. [21] Ms. Luzny testified that she asked if the officers had a warrant when Constables Reid and Djuric entered the master bedroom. She did not remember what they said in response. After she and Mr.

Kovesdi had been placed on the floor on opposite sides of the bedshe was not sure if Cst. Djuric was still in the room. However, she added that she specifically asked Cst. Reid, “Where’s the fuckingwarrant?” She indicated that she was annoyed and “pissed off” by being placed on the floor. [22] Ms. Luzny testified that she asked “maybe three times” to see the warrant over the twenty minutes she was on the floor. Shestated that her only conversation with Cst. Reid was asking to be taken off the floor and “where’s the warrant”.

She testified that Cst.Reid kept responding, “just calm down, you’ll be up soon.” She stated that the officer explained that she had to stay on the floor as theremay be weapons in the room. She described his attitude as arrogant. [23] In cross-examination by Mr. Murphey, Ms. Luzny testified that she could not remember if Mr. Kovesdi asked to see the searchwarrant. She stated that she was never shown the search warrant either in her residence or at the detachment. She stated that she wasreleased before Mr. Kovesdi and returned home before him. She stated the residence was not secured, when she returned. [24] Mr.

Kovesdi testified that after the police entered the master bedroom, Ms. Luzny was placed on the floor and he was stood upon the other side of the bed. He added that he was not placed on the floor as he reminded the constable that he had a broken rib. Hestated that he asked to see the search warrant and repeated that request after Ms. Luzny had asked. He added that he also repeated herrequest to let her up off the floor and reminded the officer that they always cooperated with the police. He stated that the officer wasquite agitated and that he was trying to calm the officer down. [25] Mr.

Kovesdi testified that he could not remember if he asked to see the search warrant more than once. He stated that he wasnot shown the warrant while in the residence. As well, he was not given a copy of the warrant at the detachment or upon release fromcustody. He stated that he first saw the search warrant in the photograph of the refrigerator with his lawyer (Exhibit b-18) as part ofCrown disclosure. [26] Mr. Kovesdi testified that he heard Ms. Luzny swearing and asking to see the search warrant at least twice. Law [27]

Section 29 of the Criminal Code states: It is the duty of every one who executes a process or warrant to have it with him, whereit is feasible to do so, and to produce it when requested to do so. [28]

Section 487.1(7) of the Criminal Code states: A peace officer who executes a warrant issued by telephone or other means oftelecommunication,…shall, before entering the place or premises to be searched or as soon as practicable thereafter, give a facsimile ofthe warrant to any person present and ostensibly in control of the place or premises. [29] The defence submitted that this court should follow our Court of Appeal decision R v. Bohn (2000) 2000 BCCA 239 ,145 CCC 3d 320. In that case the police had a warrant to search for theft of electricity.

That search produced evidence used to obtain asecond warrant to search for a marijuana grow operation. In paragraph 20 of this decision it is noted that “it was part of the plan toobtain the warrant for theft of electricity and to execute it without taking it to the premises to be searched.” [30] In paragraph 30 of the Bohn decision the court held that: “Although the police officers in this case advised the appellant of theexistence of the warrant and the reason for their presence, they could not produce the warrant which confirmed that the search had priorauthorization from an independent body.

Failure to produce the warrant on request, without good reason, is in my view, a significantbreach of

section 8.” [31] In paragraph 41 the court noted that unlike narcotics such as heroin or cocaine grow-ops do not have a strong need for speed topreserve evidence. In paragraph 41 of the Bohn decision it noted that a subsequent breach of the right to counsel did have a “temporal”link to the discovery of the “real” evidence during the search and was considered in determining whether the admission of the evidencewould bring the administration of justice into disrepute under s24(2) of the Charter. [32] The Court of Appeal applied the then law of R. v.

Stillman (SCC), 113 CCC 3d 321 to exclude the evidenceobtained in the search in the s24(2) analysis. [33] The Bohn decision was followed by this court in R. v. Hidber and Parnell 2006 Smithers Registry 18927.

In paragraph 19, HisHonour Judge Milne found that the police had the warrant with them during the search and “briefly” showed it to the occupants but didnot produce it to them by either providing a copy or allowing them to read it. [34] He went on in paragraphs 25 and 26 to quote paragraph 43 of the Bohn decision that “There is an absence of good faith in thiscase not because the mistake was deliberate, but because it was not reasonable. On that basis he excluded the evidence under s24(2) ofthe Charter.

[35] Subsequently, the Supreme Court of Canada in R. v. Grant 2009 SCC 32 laid out a new test to determine the admissibility ofevidence under s24(2) of the Charter.

Paragraph 71 reads: When faced with an application for exclusion under s24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter protected interestsof the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication ofthe case on its merits. [36] Both the Crown and defence referred the court to R. v.

Cornell 2010 SCC 31 , 2010 2 SCR 142. At paragraph 43 itexplains that the purpose of s29(1) of the Criminal Code “is to allow the occupant of the premises to be searched, to know why thesearch is being carried out, to allow assessment of his or her legal position and to know as well that there is a colour of authority for thesearch, making forcible resistance improper.” [37] In the Cornell decision the police did not have the search warrant with them when they entered the residence.

The warrant wasin the hands of the lead investigator who waited outside the residence and brought it into the residence within four minutes of the initialforced entry. While the court held that the search was lawful in the Cornell decision, no one asked to see the warrant. [38] In R. v. Chuhaniuk 2010 BCCA 403 , 2010 BCJ 1815 our Court of Appeal applied the three part Grant test. The policehad searched out-buildings not included in the original search warrant and specifically denied by the JP granting the warrant.

Frominformation gathered in the out-buildings a second warrant was obtained and evidence of a grow-op obtained. The trial judge’sdetermination was that the breach of the accused’s rights by search of the garage was not as serious as the entry into the summer house. The trial judge further concluded that the police were not acting in bad faith in searching the outbuildings. Finally the trial judgeconcluded that the exclusion of the highly reliable evidence obtained that was critical to the Crown’s case would bring the administrationof justice into greater disrepute than would its admission.

The trial judge’s assessments were upheld by the Court of Appeal. [39] In the Chuhaniuk case Mr. Justice Frankel in paragraph 83 cites R. v. Harrison 2009 SCC 34 in paragraph 75. This reads:“‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However,ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with goodfaith.” [40] The Crown referred this court to the decision of R. v. Fan et al 2013 BCSC 1534. In that case the court found five separatebreaches of the accuseds’

section 8 Charter rights. One of those breaches was the failure to produce a copy of the warrant as required bys487.1(7) of the Criminal Code. In paragraph 33 the court stated “In my view, this was a simple oversight on the part of police and notpart of a systemic problem or a pattern of disregard of the accused’s rights. In addition, this is not a case like R. v.

Bohn 2000 BCCA 239where the police deliberately did not bring the search warrant with them to the property.” [41] At paragraph 71 the trial judge stated, “In particular, looking at the breaches cumulatively, in my view, they do not demonstratethat the police either acted in a cavalier fashion or disregarded the rights of the accused. I do not see a pattern in the various breachesthat I have identified.

Rather, in some cases, the breaches were the result of simple oversight (failure to produce the warrant), while inother cases the breaches arose from isolated errors in judgment, and still in other cases, the breaches occurred because the policebelieved that they had the right to search pursuant to a valid warrant.” [42] The convictions in the Fan decision were upheld by the Court of Appeal R. v. Fan 2017 BCCA 99. In paragraph 71, the courtnoted “that “good faith” and “bad faith” are terms of art which connote mental states at the opposite poles of a spectrum….

Importantly,the absence of bad faith does not equate to good faith nor does the absence of good faith equate to bad faith.” [43] Conversely, in R. v. MacNeil 2014 BCSC 723 Mr. Justice Silverman found five separate breaches of the Charter including afailure to present the warrant contrary to both sections 29 and 487.1 of the Criminal Code. In paragraph 129, in applying the first of thethree-part Grant test the judge stated, “This search could generously be described as somewhere between disorganized and out ofcontrol. He found the police did not act in good faith.

He further quoted in full paragraph 75 of the Grant decision, but relied speciallyon this passage, “ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot beequated with good faith….” [44] R. v. Bohn was mentioned in paragraph 36 of R. v. Chen 2016 BCCA 506. There a Justice of the Peace had approved twosearch warrants and phoned to advise the lead investigator of same. However, the warrants had not been signed by the JP.

The trialjudge ruled that the warrant was valid but that the absence of the signature meant that the accused was not provided with proper noticethat the warrant was authorized as required by sections 29 and 487 of the Criminal Code.

Accordingly, the trial judge found a breach ofs8 of the Charter but admitted the evidence seized as he found there was no “willful blindness” on the part of the police and society’sinterest in having a trial on the merits. [45] In paragraph 40 of the Chen decision, Madam Justice Newbury accepts the trial judge’s finding that society had a “stronginterest” in having the charges decided on their merits, “that the evidence was reliable and necessary to the Crown’s case and that factsignified that the repute of the justice system would be harmed if the evidence were excluded.” [46] Conversely in paragraph 39 of R. v.

Wong 2017 BCSC 1643, Mr. Justice Kent noted that, “a court analyzing this factor (societyinterest) must be careful not to allow the seriousness of the offence and the reliability of the evidence to overwhelm the s24(2) analysisbecause this would afford less Charter protection to those charged with more serious crimes. [47] Finally, R. v. Bohn was considered in R. v. Pipping 2018 BCPC 10. The trial judge had found four breaches of Charter rightsincluding a delay in access to counsel. There was no issue as to production of the warrant to the occupants.

After a lengthy review of thecase law and application of the three-part Grant test the evidence was admitted. Paragraph 98 states, “The charges faced by the accusedare serious. The evidence is real, reliable and important to the most serious aspects of the Crown case. Admission of the evidenceagainst these accused would not result in an unfair trial against them. Some of the narcotics involved are particularly dangerous, alleged

to be possessed in significant amounts and, at the manufacturing or assembly scale. There is a high societal interest in adjudicating these issues on the merits.” Analysis [ 48 ] In this application the onus is upon the applicants/accuseds to establish a breach of their respective rights on the balance of probabilities. [ 49 ] The Crown rightly conceded that s487.1(7) was not complied with. Accordingly the warrant was invalid and the accuseds’ rights under

section 8 of the Charter had been breached. [ 50 ] The original application for Charter relief alleged a failure by the police to produce the search warrant when requested to do so as required by s29 of the Criminal Code . Ms. Luzny testified that she asked Cst. Reid at least three times to see the warrant. Mr. Kovesdi testified that he heard her ask Cst. Reid at least twice. [ 51 ] Cst. Reid testified that he did not remember being asked to produce the warrant and would have noted such a request and would have asked the officer with the warrant to produce it. [ 52 ] Cst.

Djuric had the search warrant and had no memory of being asked to produce the warrant. According to all testimony he would have been in the master bed-room when Ms. Luzny said she asked to see the warrant. At 8:47 p.m. (several hours after the arrest of the accuseds in their residence) he read the search warrant to Mr. Kovesdi, who had no glasses. [ 53 ] After the accuseds had been taken to the detachment, Cst. Djuric left three copies of the search warrant in the residence as displayed in the photographs in exhibit B. [ 54 ] Cst. Moleski transported Ms. Luzny to the detachment and assisted Ms.

Luzny in exercising her right to counsel. He had no memory of being asked to see the search warrant and would recall if someone had asked to see it. However, in cross-examination he stated that someone could have asked to see the search warrant. [ 55 ] Cst. Niazi testified that he had chartered Ms. Luzny. He had no memory of being asked to produce the search warrant and if asked would have recorded it in his notes. However, in cross-examination he agreed that he was not certain the accuseds did not ask to see the warrant. [ 56 ] There is no evidence that Cst. Moleski or Cst.

Niazi were ever asked to produce the search warrant. If as Ms. Luzny stated she asked to see the warrant soon after Cst. Reid and Cst. Djuric entered the master bedroom then both officers should have heard the request. As well, if Mr. Kovesdi repeated her demand to see the warrant while he was still in the master bedroom with Cst. Djuric both officers should have heard it. [ 57 ] It is illogical that Cst. Djuric would have brought the search warrant, plan to take it inside the residence upon entry, read it to Mr.

Kovesdi hours later and leave three copies in the residence if he had heard a request to produce the search warrant. Such a request would certainly trigger his memory to fetch the warrant from his police vehicle. [ 58 ] There is also an inconsistency between the testimony of Ms. Luzny and Mr. Kovesdi in where he was in the master bedroom after detention by the police. She has him on the floor on the other side of the bed and he placed himself standing by the wall because of a broken rib. [ 59 ] The issue boils down to Ms. Luzny’s assertion that she asked Cst.

Reid to produce the warrant and his assertion that she did not. If she was determined to see the authority for the police to be in the residence, logically she would have repeated that request to other police officers such as Cst. Moleski. [ 60 ] On a consideration of the evidence as a whole on the balance of probabilities I am not satisfied that the applicants have established that a demand to produce the warrant was made. [ 61 ] As there was a breach of the accuseds’

section 8 rights under the Charter , I must now determine under s24(2) whether to exclude the evidence obtained during the search. [ 62 ] Concerning the first leg of the Grant test, in the case at hand Cst. Djuric had the warrant available outside the residence but in haste to secure unexpected persons and the residence itself did not bring the search warrant into the residence until after the accuseds had been taken to the detachment. Later he read the search warrant to Mr. Kovesdi. [ 63 ] The evidence is that the plan was to bring the search warrant into the residence.

There is no evidence that the police intended to not comply with s487.1(7) of the Criminal Code . Unlike paragraph 41 of the Bohn decision this search required speed as cocaine is relatively easy to dispose of, unlike a grow-op. [ 64 ] The failure to produce the search warrant is a technical breach caused by negligence but not part of a deliberate plan to deny the accuseds their Charter rights. A lawful search warrant existed but was not produced.

This negligence is neither evidence of bad faith or good faith. [ 65 ] Concerning the second leg of the Grant test, the accused’s security of their residence from interference by the executive branch of the government has been held to be the second most intrusive after interference with bodily integrity. The Common Law, long before the Charter held that a person’s home should be safe from state interference unless it was authorized by and reviewable by an independent agency, the judiciary.

The unlawful search, while serious does not render the trial unfair. [ 66 ] Concerning the third leg of the Grant test, the exclusion of all of the evidence would, as the Crown Counsel said, gut the

Crown’s case. As was said in the Wong case, “the court must be careful not to let the seriousness of the charges and reliability of the evidence overwhelms the other two legs of the Grant test. ” The court must balance all three considerations. [ 67 ] On a consideration of all three parts of the Grant test, I conclude that the charges are serious, the evidence is real, reliable and critical to the Crown case. Admission of the evidence would not result in an unfair trial. There is a strong societal interest in having a trial on the merits of the case.

To exclude the evidence would more likely bring the administration of justice into disrepute than would its admission, both in the short term and in the long term. [ 68 ] The application is dismissed. _______________________________ W. F. M. Jackson Provincial Court Judge