R. v. Shah, 2021 BCPC 47

Citation: R. v. Shah 2021 BCPC 47 Date: 20210204 File No: 256136-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BOBBY SHAH aka BAHMAN DJEBELIBAK RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: James D. Bird and Peter M. Campbell Counsel for the Defendant: Marvin N. Stern and Michael A. Beckett Place of Hearing: Vancouver , B.C. Dates of Hearing: July 20; August 17, 18, 19, 20, 25, 27; November 18; December 21, 22, 2020 Date of Judgment: February 4, 2021 [ 1 ] Bobby Shah, also known as Bahman Djebelibak (Mr.

Shah), is charged with fraud-related offences under ss. 334 and 380 of the Criminal Code . Specifically, the most common allegation is that Mr. Shah persuaded young adults to cash cheques for his “business” that would later turn out to be fraudulent, or have them open lines of credit for his benefit which he had no intention of covering.

[ 2 ] This is a ruling after a Voir Dire . The Voir Dire was held to address some alleged breaches of Mr. Shah’s rights under s. 8 of the Charter . [ 3 ] Evidence and submissions were heard over the course of some nine days. Cst. Gooding is an RCMP Constable with the Economic Crime Unit (ECU) and was the affiant of the Information to Obtain two search warrants (ITO). One warrant was for the search of Mr. Shah’s residence and one was for his business. [ 4 ] Cst.

Gooding, as well as several other officers involved in the execution of the search warrants, testified with respect to obtaining the warrants, executing the warrants and what happened after the warrants were executed. Applications on Voir Dire [ 5 ] Mr. Shah makes applications for the following orders (for the sake of consistency I will follow the listing of raised issues contained in the accused’s Amended Notice of Application filed November 18, 2020): 1) An order quashing the search warrant granted pursuant to s. 487 of the Criminal Code on March 13, 2018 authorizing the search of Mr.

Shah’s business (Hollywood Vape Labs in Port Coquitlam) because the ITO did not, sub-facially and as amplified on review, contain sufficient grounds to justify its issuance (The Defence had originally sought the same order with respect to the warrant authorizing the residence search but abandoned that application); 2) A declaration that Mr. Shah’s s. 8 rights under the Charter were violated when the search warrants were executed at the residence and the business on March 15, 2018 on the grounds that:

a) The manner of search in which the warrants for the residence and the business were executed: i. Went beyond the scope of what was articulated within the ITO and the warrant itself and cannot be saved under either s. 489 of the Code or the “plain view” doctrine; ii. Resulted in the mistreatment of Mr. Shah’s infant child;

b) The ITO did not, sub-facially and as amplified on review, contain sufficient grounds to authorize the search of the business;

c) The police’s releasing of seized items to alleged complainants without complying with the process for doing so under s. 490 of the Criminal Code ;

d) The warrantless gathering of aerial photographic evidence of the residence. [ 6 ] If breaches are established, Mr. Shah seeks an order excluding all the evidence obtained during the execution of the two search warrants at the residence and the business pursuant to s. 24(2) of the Charter . Crown’s Position [ 7 ] The Crown maintains that the warrants were properly issued and executed. The Crown states that the police were justified in seizing a large majority of the contents of the residence due to the nature of the allegations. The Crown states that s. 489 of the Code authorized such a seizure.

As the Crown submitted, “ultimately, while looking for needles, the police seized the haystack. The needles being evidence of fraud relating to a specific complainant, and the haystack, the proceeds of crime or property obtained by crime”. [ 8 ] The Crown maintains that no core biographical information was obtained (or sought to be obtained) by the aerial surveillance and that therefore there was no breach of s. 8 when the police engaged in that endeavour. [ 9 ] As far as the non-compliance with s. 490 of the Code , the Crown says that Mr.

Shah would have to establish a residual reasonable expectation of privacy in the subject items. Even if this is established the Crown says that this breach is minor and that the subject items are not part of this trial in any event. Brief Factual Background [ 10 ] The factual background here is largely set out by the Crown. I will summarize the fraudulent scheme alleged but note that the allegations are disputed by Mr. Shah of course. [ 11 ] Cst. Nancy Essery, a 12 year veteran RCMP officer with the ECU was the primary investigator. The investigation here involved allegations that Mr.

Shah committed fraud over $5,000.00 by ostensibly “hiring” young adults to work for him. These people came to Mr. Shah in a variety of different ways. Twenty-nine individuals are named complainants. [ 12 ] Mr. Shah would apparently persuade these individuals that he was a very wealthy businessman and that he required assistance from them in order to avoid paying taxes. He would ask them to purchase high end goods, give him cash or open lines of credit for his benefit. In exchange he would give them cheques to deposit into their accounts to cover the cost of the transactions.

They were told they could keep a percentage of the excess amount of money. [ 13 ] Notably, the cheques, however, were not issued in Mr. Shah’s name (or whatever alias he was using) and the payee was generally not the recipient complainant as well.

Despite this, the Crown theory is that the complainants are properly characterized as victims in that they were largely unsophisticated young males who asserted that they did not know the cheque scheme was illegal in any way. [ 14 ] Ultimately, it is alleged, the cheques were fraudulent and the complainants were left with deficits in their (or their parents) bank accounts or they were left with an unpaid credit card debt.

[15] Eventually, Mr. Shah would then cut off communications with that complainant and move onto another one. [16] Some of the named complainants in this matter were able to provide receipts of the purchased items (or at least some description)and a list was developed by investigators. [17] Investigators were also aware of other investigations involving, what they believed, was the same accused using a very similarscheme in other jurisdictions. [18] Again, the date range of these alleged activities was between May 2015 and January 2018. Cst. Gooding’s application to searchMr.

Shah’s residence and business was made on March 13, 2018. [19] Once the warrants were issued they were executed on March 15, 2018. The police employed the assistance of a civilian logisticscompany to assist in the removal and storage of items from the house and business. Officers involved in the search had access to, what isnow Exhibit N on the Voir Dire, the warrant to search.

The warrant contained Exhibit B which was a list of the items to be searched forand seized (the List). [20] Paragraphs 1-4 of that Exhibit is a relatively detailed list of the items that the complainants had advised the police werepurchased in this scheme. Paragraph 5 however is entitled “Jewellery/Miscellaneous Items”. This list contains a less detailed list of itemsto search for. [21] Many officers were involved in the execution of the search warrants. However, Cst.

Nancy Essery, and to a lesser extent Cst.Bojic, were responsible for making any decisions at the scene as to what items were properly the subject of some kind of seizure. [22] Once the search had commenced, and due to a number of factors that will be discussed shortly, Cst. Essery authorized the seizureof a large majority of all the items in the residence. Analysis [23]

Section 8 of the Charter guarantees everyone "the right to be secure against unreasonable search or seizure". A search will passconstitutional muster under s. 8 only if it satisfies three requirements: First, the search must be authorized by law; second, the law itselfmust be reasonable; finally, the manner in which the search is carried out must be reasonable: R. v. Collins, (SCC),[1987] 1 S.C.R. 265, at p. 278. [24] The power of the state to obtain a search warrant to search a citizen’s residence and their business premises can only be describedas an awesome power.

There is a very high standard expected in the issuance of search warrants especially when the execution of thewarrant will result in police intrusion into one's home (Hunter et al. v. Southam Inc., (SCC), [1984] 2 SCR 145).However, while the standard is high it is not one of perfection and it is an error for the courts to expect perfection. Scope of Search [25] Any seizures that are outside of the scope of the items that a judicial officer has authorized to be seized in the warrants ischaracterized as a warrantless seizure.

The Crown has the onus of justifying the reasonableness of a warrantless seizure using the Collins(above) standard. [26] Our Court of Appeal in the case of R. v. Mandziak, 2014 BCCA 41 said this at para. 66: Warrantless searches are prima facie unreasonable under s. 8 of the Charter, and the party seeking to justify a warrantless search has theonus of rebutting this presumption (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145). The same onus applies whereitems that are outside the scope of a search warrant are seized (R. v.

Jones, 2011 ONCA 632). [27] With respect to the scope of the search, and the items that have been judicially authorized to be searched for and seized, thewarrant should clearly delineate that in the warrant itself (i.e. without the benefit of any reference to the ITO). The warrant should satisfythe "fellow officer" test which states that "a fellow officer be able to understand the items sought and the location to be searched as aresult of reviewing the face of the warrant". (See R. v. Neill, 2018 ONSC 5323 at para. 16). [28] In R. v.

Bishop, 2013 BCSC 522 Justice Bruce made these comments in relation to the execution of a search warrant: 175 Whether or not the search warrant was properly issued by the justice, a violation of the accused's rights under s. 8 of the Chartermay occur if the police execute the search warrant in an unreasonable manner. The police must confine their search to those items thatare expressly or implicitly included within the terms of the warrant.

Seizure of items that go beyond the scope of the warrant constitutesan unreasonable search and seizure. … 179 In addition to the items expressly or implicitly included within the scope of the warrant, s. 489 of the Code authorizes the police toseize offence related items. Section 489(2) of the Code provides that a police officer who is lawfully present in a place pursuant to awarrant, or otherwise in the course of his duties, may seize, without a warrant, anything he believes on reasonable grounds: (

a) has beenobtained by the commission of an offence against the Code or any other act of Parliament; (

b) has been used in the commission of anoffence against the Code or any other act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other act ofParliament. [29] There are two sources of legal authority that officers who are executing a search warrant may seize items not specificallydelineated in the warrant itself. [30] The first is the plain view doctrine, founded in the common law. This doctrine provides a power to seize (not search for) evidence

found unexpectedly in the course of an officer’s duties. Such a situation may arise when the officer is executing a warrant in the courseof his or her duties. [31] In R. v.

Gill, 2019 BCCA 260 the court summarized the four requirements for the application of the plain view doctrine asfollows (at para 33): a. the police had lawful prior justification to be at the place where the evidence was found; b. the police discovered the evidence inadvertently while exercising a lawful police power or performing a lawful police duty; c. the evidence was in plain view in the sense that it was detected through the unaided use of the officer's senses; and d. it was immediately apparent to the officer that the evidence was probably connected to criminal activity. [32] The second source is the authority provided in s. 489 of the Criminal Code which says:

(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believeson reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [33] The Crown in this case relies upon the authority contained in s. 489 to justify the seizure of items that were not specificallydelineated in the search warrant itself. [34] A search does not become unreasonable simply because, during the execution of the warrant, the police are anticipating to findevidence of other offences. (See R. v. Daigle at para. 21 (BCCA) and R. v.

Yue at para. 5 (BCCA)). [35] In dealing with allegations of a “significant over seizure” of items not specified in a warrant, Justice Smart in R. v. Sipes, 2011BCSC 640 states that s. 489 does not merely codify the plain view doctrine, but rather, it authorizes police to seize things found during alawful search without delaying to apply for another warrant. The distinction with the plain view doctrine is that the items need not bediscovered inadvertently. [36] Justice Smart in Sipes (above) summarizes this rationale as follows: 204 The

section delegates to the police the authority to seize evidence not authorized by the warrant provided they have the requiredreasonable grounds to do so. It shifts the onus of demonstrating the required grounds to after the search rather than before. It is, in thissense no different than the plain view doctrine. The

section does not require the police to obtain a second warrant when they "discover"things not authorized by the warrant, but the discovery must be made in the course of searching for the things that are authorized by thewarrant. This is again consonant with the first requirement of the plain view doctrine: namely, the officer must lawfully be in theposition from which he or she discovers the evidence that is plainly in view. 205 A search warrant permits the police to enter a place to search for the things authorized by the warrant. The search must be conductedin a manner consistent with the things authorized.

For example, if the warrant only authorized the police to search for a 51" television set,it would not be reconcilable for the police to search the drawers of a desk. If they did and found a quantity of drugs, s. 489(1) of theCode would have no application because the television could not have been secreted in a desk drawer. … 209

Section 489 of the Code is not confined to "inadvertent" discovery of other evidence. The police may seize things not authorized bythe warrant when they are found during a search for the things that are authorized. This is so even though the police considered beforethe search that additional things may be found. 210 While s. 489 of the Code enhances efficient law enforcement, it does create the potential for abuse if the

section is misused. Asearch warrant must not be used as a "Trojan Horse" to enter a place to search for things not disclosed in the ITO. In other words, theprimary purpose of the warrant must be to search for the things that are authorized by the warrant, not to search for things that are not. 211 This view reflects what was said by Salhany J. in R. v. Warren, [1990] O.J. No. 2604 (Ct. J. (Gen. Div.)) at p. 5: In my view, a seizure conducted in the exercise of

section 487 cannot be attacked as being an unreasonable search so long as thedominant purpose of the search is for those articles listed in the search warrant and the ambit of the search is within that portion of thepremises searched [where] the articles listed might reasonably be found. It is also consistent with what was decided in R. v. Lam, 2004 BCSC 1799. 212 If the police do not have reasonable grounds to believe that things will be found that will afford evidence of the offences listed in thewarrant, the police will not be granted a warrant to search for those things.

If they find such things and seize them pursuant to s. 489 ofthe Code, they will have to demonstrate at trial that they had reasonable grounds for doing so if the Crown seeks to introduce them intoevidence. Whether the police had the required grounds can be challenged by cross-examination and the introduction of other evidence.The result is that while the police need not demonstrate the requisite grounds before seizure, they may be required to after seizure; andwhen they are, those grounds can be thoroughly challenged by the accused.

(Emphasis added) [ 37 ] The Crown points out that the offences being investigated here that justify the seizure of items not specifically related to any particular complainant are: 1) Possession of property obtained by crime (s. 354) or 2) Laundering proceeds of crime (s. 463.31). [ 38 ] The Crown maintains that the combined effect of having both of these sections in play during a search like the one here means that any property where there are grounds to believe that it was fraudulently obtained or purchased with fraudulently obtained cash could be lawfully seized. [ 39 ] In addition the Crown submits that for items not connected via documentary evidence to a fraud complainant in these proceedings, the Crown will not seek to tender those items.

In that case, they state that there will be no need for a ruling on any application under s. 24(2) of the Charter with respect to the admissibility of those items. [ 40 ] The Defence does not dispute that this authority exists in the appropriate circumstances.

However, the Defence submits that here there is no basis for the seizure of up to 85-95 percent of the contents of the house and business given the facts that existed in this case. [ 41 ] The items delineated in the warrant as being judicially authorized for seizure are contained in Appendix B of the Search Warrants (the List). [ 42 ] I have considered the additional defence argument that there was a lack of particularization with respect to the List.

I find, however, that while paragraph 5 of that document is somewhat broad, in that it lists categories of items, they are still, for the most part, reasonably specific and are linked to the information contained in the ITO. [ 43 ] Therefore, the impugned paragraph within the List (paragraph 5 entitled “Jewellery/Miscellaneous Items”) broadly meets the “fellow officer” test in that a fellow officer looking at the warrant would be able to understand the items sought and the location to be searched as a result of reviewing the face of the warrant. ( See R. v.

Townsend , 2017 ONSC 3435 at para. 53 ). [ 44 ] The real issue is whether the warrantless seizure of items (over and above the List) that occurred in this case was done so with the requisite grounds being established under s. 489 of the Code . [ 45 ] Cst. Essery was the officer in charge of the search. Cst. Essery (and to a lesser extent Cst.

Bojic) was in charge of making decisions as to what was to be seized. [ 46 ] The Defence submits that she made three decision during the course of the Search warrant execution on March 18, 2018 that resulted in the scope of the search being greatly expanded. [ 47 ] Those decisions related to: 1) Receipts that were located in a pickup truck that related to a VPD Fraud investigation involving Khoa Do; and 2) The seizure of a number of vehicles that were not listed in the List; and 3) The location of some Tax Returns, specifically, the 2015 Tax return for Mr.

Shah and the 2015 and 2016 Tax Returns for his wife, Ramina Shah indicating a stated income of $25,446.00. The impact of the Tax Returns [ 48 ] Briefly put, tax returns for Mr. Shah (2015) and Mrs. Shah (2015 and 2016) were found during the search. The stated incomes on those tax returns led Cst. Essery to believe that the Shah’s did not possess a sufficient income to support the apparent lifestyle that they were living. [ 49 ] This was a very important basis (but not the only one, others are discussed below) upon which Cst.

Essery decided to greatly expand the scope of the search due to her conclusion that essentially all (or almost all) of the items in the house were linked to criminal activity. [ 50 ] However, Cst. Essery made some important and candid concessions during the course of her evidence: 1) She agreed that one could not possibly judge a person’s wealth in March of 2018 from their tax returns years earlier; 2) It was known that Mr. and Mrs.

Shah owned or co-owned several private (apparently legitimate) business enterprises; 3) She did not investigate the income being generated from these business enterprises; 4) She was unfamiliar with whether the Shah’s possessed or had access to any family wealth; 5) She agreed that the RCMP does have experts that can do lifestyle/revenue determinations but that no expert had been asked to conduct such a determination or conduct a net worth assessment in this case; 6) She agreed that without knowing revenue streams she could know whether their lifestyle could be facilitated or not; [ 51 ] Despite the concessions made above Cst.

Essery concluded in the last paragraph of the ITO:

141. I do not believe that his legitimate businesses, nor those businesses owned by his wife Ramina would provide the type of lifestyle that would allow for the purchase of all these high end luxury items. [ 52 ] Given the concessions made in evidence, this conclusion is left with very little basis upon which it could be supported. [ 53 ] In addition, I should note, that there is no explanation proffered in the evidence to suggest that the six figure bank balances that Mr. Shah was allegedly showing to multiple complainants on his phone app was not real (or legitimate for that matter).

Receipts [ 54 ] The search team entered the house at 0818 hours and were looking for the items contained in the List. At approximately 1330 hours a number of receipts were found that were in the name of Do Khoa and Bui Thi Kim. These receipts referenced the Brick store. [ 55 ] Cst. Essery knew that a person named Khoa Do was the complainant in a VPD Fraud investigation where Cst. Nash was the main investigator. She did not know the other name on the receipts. [ 56 ] A decision was made to expand the search to take the items that were indicated on these receipts.

As a result, virtually all of the furniture in the home was seized as it may have been purchased from the Brick (a well-known retail furniture outlet). [ 57 ] As part of the evidence on this Voir Dire is a synopsis authored by Cst. Nash in relation to the VPD investigation. It is dated February 11, 2018. Cst. Essery had access to this document prior to the search in question. That document indicates that a man named Hoang Do met a man named “Robert Laurent” and engaged in some transactions that are similar to the scheme that has been described in this case. Mr. Shah was presumed to be Robert Laurent.

Khoa Van Do (actually written as Khao Van Do in the synopsis) is the father of Hoang Do. [ 58 ] However, there is also an e-mail from Cst. Nash to Cst. Essery on March 9, 2018 (6 days prior to the search). That document summarizes the state of the investigation being conducted by Cst. Nash. The e-mail indicates that Van Khoa DO has never provided a written statement to the police and had actually never even reported the incident to the police as a crime nor spoken to Cst.

Nash despite his repeated requests for information. [ 59 ] I am prepared for the purposes of this analysis to conclude that it was reasonable for Cst. Essery to believe that Khoa Do, Do Khoa or Van Khoa Do could be the same person. [ 60 ] Cst. Essery testified that she had spoken to Cst. Nash on the phone with respect to Mr. Shah and the VPD investigation that Cst. Nash was conducting.

She said that that conversation, however, was prior to the March 9th e-mail that she received. [ 61 ] A criminal fraud requires an objectively dishonest act and proof that the prohibited act has resulted in a deprivation or risk of deprivation to a victim's economic interests. Notably, actual economic loss by a victim is not an essential element of the offence of fraud. Khoa Do, according to Cst. Nash, had never even reported the incidents to the police.

Given the nature of the scheme and the fact that the persons depositing cheques etc. may, without knowing the details of their participation, be co-conspirators in any alleged fraud it is crucial to have information from the putative victims. [ 62 ] It is clear that that search warrant application based on Cst. Nash’s provided information could never have been granted. Essentially the court is being asked to conclude that the discovery of some receipts found in the house that are in the name of Khoa Do, in the circumstances described above, support reasonable grounds to believe that the items in those receipts: (

a) have been obtained by the commission of an offence; or (

b) have been used in the commission of an offence; or (

c) will afford evidence in respect of an offence. [ 63 ] That conclusion is simply not justified given the evidence on this Voir Dire . At the time of the search, it must be found that there existed very little basis for Cst. Essery’s belief that Khoa Do was a victim in a fraudulent scheme and that a seizure of all the furniture and a subsequent “sorting out” of what items, if any, might be the subject of a proceeds of crime investigation or are consistent with fraudulent activity was justified. Vehicles [ 64 ] A number vehicles were on the List to be seized.

However in addition to those vehicles others were also seized. They included a grey or black Dodge Ram pickup truck, a red Honda motorbike and a red Pontiac G6 sedan. [ 65 ] Cst. Essery made the decision to seize all of these vehicles. [ 66 ] With respect to the Dodge pickup she said that a similar vehicle was mentioned in a Port Coquitlam file in 2015 involving the same suspect. In addition she stated that this vehicle could possibly be associated to fraudulent Home Depot purchases and a complainant named Shokhooi. Cst.

Essery had viewed store video footage that showed a similar vehicle allegedly conveying the subject goods away from the store. That particular incident occurred on March 30, 2017. While this incident is summarized in the ITO at page 17 there is no mention of a Dodge pickup. In fact the vehicle associated to Mr. Shah at the Home Depot that day was a white Porsche SUV. [ 67 ] The red Pontiac was seized despite there being no evidence that it was related to any unlawful activity. The basis provided was that it was not registered in Mr.

Shah’s name and it was seized to “further the fraud investigation to determine if a victim had purchased that vehicle”. [ 68 ] The Honda motorbike was seized because the accused apparently had asked certain complainants to purchase Honda

motorcycles. This information, however, was not part of the ITO. [69] Had any of these vehicles been included in the ITO with a request to seize them, on the evidence that was available to the affiantat the time, there is little doubt that the authorizing justice could not have granted the authority to seize these vehicles. There is simplytoo tenuous a connection between any alleged criminal activity and these particular vehicles. [70] Again, the question is was there anything discovered at the search scene that would elevate what must have been a suspicion onCst. Essery’s part to reasonable grounds that these particular vehicles: (

a) had been obtained by the commission of an offence; (

b) had been used in the commission of an offence; or (

c) would afford evidence in respect of an offence. [71] It must be remembered that the test is not that the items are suspected of being involved, or may possibly be involved or that afterthe seizure it may be established that they were involved. The question is was there a reasonably objective basis for Cst.

Essery tobelieve that they were involved. [72] The answer must be in the negative. [73] Sipes (above) makes it clear that permitting a more extensive search than necessary to search for the things authorized by thewarrant would be inconsistent with s. 8 of the Charter, and expressly warns against the police engaging in a “fishing expedition” to findevidence of an offence without establishing reasonable grounds to do so (at para 206).

Section 489 bestows an important power upon thepolice to seize items beyond the scope of the warrant. [74] However, whether the police here were justified under s. 489 turns on whether they had reasonable grounds to believe that itemsnot contained on the List were obtained by, used in, or afford evidence in respect of an offence. Ultimately, amplification, upon review,has clearly shown that the belief held by Cst.

Essery that most of the items in the house (not on the List) were seizable under s. 489 wasobjectively an unreasonably held belief. [75] The Crown has not rebutted the presumption of unreasonableness with respect to the seizure of items that cannot reasonably becharacterized as falling within the items described in the List. This amounts to a breach under s. 8 of the Charter. Aerial Surveillance [76] The Defence challenges the warrantless gathering of aerial photographic evidence of the accused residence. [77] It was Cst. Gooding (the ITO affiant) who requested the aerial surveillance.

She was not aware of how high the plane would bewhen making observations and taking photographs and did not know what kind of camera would be employed. The surveillance wasspecifically targeted at the back porch (covered and uncovered) and back yard areas immediately adjacent to the rear portion of thehouse. [78] Exhibit A on the Voir Dire is an Agreed Statement of Facts in relation to this issue. Cst. Burridge took photos with a Nikondigital SLR with a zoom lens on February 8, 2018 at approximately 12:30 p.m. He was in a helicopter circling around the Shahresidence.

The helicopter was at 1,500 feet above the ground when the photos were taken. He also returned to residence and took photosof the residence from 1,000 feet on January 26, 2020. These later photos, being taken after the execution of the warrant on March 15,2018, are not referred to in the ITO. [79] Cst. Gooding used the resultant photos of Mr.

Shah’s backyard to assist in drafting the List. [80] In 1990 the Supreme Court of Canada held that in the absence of a warrant, there is a violation of s. 8 of the Charter whereagents of the state engage in surreptitious video surveillance of a person where that person has a reasonable expectation of privacy (inthat case, a hotel room). (See R. v.

Wong (SCC). [81] In 1993 the “General Warrant” provisions in 487.01 were added to the Criminal Code to allow a provincial or superior courtjudge to grant police the general power to "use any device or investigative technique, or procedure" or otherwise do anything described inthe warrant which would constitute an unreasonable search or seizure. [82]

Section 487.01(4) refers to video surveillance. It authorizes a peace officer to observe, by means of a television camera or othersimilar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation ofprivacy. The authorization shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of theperson or of any other person is respected as much as possible.

A warrant is only needed when video or photographic surveillance is set-up in such a way that it collects information for which there is a reasonable expectation of privacy. [83] While in Canada there has been no determination by the Supreme Court of Canada regarding the right to privacy on open,privately owned land, the weight of the case law dealing with manned aerial video or photographic surveillance by the police over aresidential lot where an expectation of privacy does exist is that a warrant will be required. (See R. v. Kelly, (NBCA), [1999] NBJ No. 98 (NBCA) at par. 49-50; R. v.

Kwiatkowski, [2010] BCJ (BCCA) No. 428 at par. 35 and 41). [84] In the case of R. v. Lauda (ON CA), [1999] OJ No. 2180 at par. 66 (Ont. C.A), Mr. Justice Moldaver notedthat persons in lawful possession of unoccupied lands in Canada have the right to exclude members of the public from their property, andthat an expectation of privacy which society is prepared to recognize as reasonable, can exist even if the property is visible to the public.(See also R. v. Wong, [2017] BCJ No. 360 (BCSC) in relation to an occupied residential backyard.)

[85] While Lauda is not an aerial surveillance case, Justice Moldaver’s finding that there may be a reasonable expectation of privacyin an open field was not overturned by the Supreme Court of Canada in the appeal of that case found at (SCC), [1998]S.C.J. No. 71.

The Supreme Court of Canada simply found that the accused, who was a trespasser on the unoccupied fields in questionhad no reasonable expectation of privacy. [86] In light of these authorities, can there be any question that a reasonable expectation of privacy exists in this particular case, wherethe space in question is the accused’s backyard deck and porch immediately adjacent and attached to his private residence? [87] The cases differentiate between situations where aerial surveillance can be found akin to a warrantless perimeter search (SeeKelly above) as opposed to situations where the surveillance is of areas that are away from a dwelling house where there was no private,personal or core biographical information at risk or obtained (See Kwiatkowski at par. 40). [88] What of the Supreme Court of Canada’s 2004 ruling in R. v.

Tessling 2004 SCC 67 , [2004] SCJ No. 63 (SCC)? In thatdecision, the Court determined that police did not need a warrant to conduct surveillance of the patterns of heat distribution on theexternal surfaces of a private residence from an airplane using an infrared radar camera (FLIR) designed only to take photos of heat andnot images of people and things.

In reaching this conclusion, the Court noted that FLIR technology was, at that point, non-intrusive in itsoperations and mundane in the data it is capable of producing (at par. 55, emphasis added). [89] Here, the risk that private and personal information was at risk of being obtained is very real. The backyard is where people go toengage in activities that they may not otherwise do in their front yards or areas that are more visible to the public. An attached deckingsurrounding a residence is an extension of indoor living space.

It is a space where residents may choose to allow their children orthemselves to be exposed to the sun while they may be in varying stages of undress and be confident that they are doing so while in theprivacy of their own backyard. [90] There was evidence from the applicant’s wife, Ms. Ramina Shah, that the property is approximately one acre large. They have ahigh fence around the property to stave off bears. They have trees along the fence line on one side of the house. She indicated thatbackyard deck is private to even the immediately adjacent neighbours. I accept this evidence.

The backyard was not an area that is easilyviewable by anyone at ground level. [91] Even residents who reside in apartment buildings can have a reasonable expectation of privacy (albeit a reduced one) in thehallways and some other common areas that are outside of their own unit. (See R. v. Pipping, [2020] BCJ No. 570 (BCCA) and R. v. Yu2019 ONCA 942 , [2019] OJ No. 6098 (Ont.

C.A.)). [92] It may be argued that those cases still involve areas that are “inside” an edifice, however, I adopt the following remarks ofJustice Drapeau in the Kelly case (above) where he states at paragraphs 49 and 50: 49 In Kokesch, Wiley and Grant, the Supreme Court ruled that a warrantless search of the perimeter of a residence violated s.8 of theCharter. The fact that the perimeter of a residence is an open space did not preclude a finding that the accused had a reasonableexpectation of privacy in the area.

In Evans, the Supreme Court gave constitutional recognition to the expectation of privacy all residentshave in the approach to their homes. It did so despite the fact that the approach to the home is open.

Kokesch, Wiley, Grant and Evans donot invite the application of the open fields doctrine to the open spaces in an occupied residential lot. 50 For my part, I reject the suggestion that the application of s. 8 to such areas is contingent on the presence of viewproof walls or roofs.Such an approach would deny s.8 rights to most open spaces in residential properties, and it would limit s.8 rights to the few who canafford such privacy shields.

As a rule, lawful occupants have an expectation of privacy in all open spaces within their residential lots thatis qualitatively sufficient to invest them with s. 8 protection against unlawful aerial as well as terrestrial searches. [93] The police have the power to obtain a warrant in order to obtain evidence like that which they sought to obtain in this case. Withthe advent of un-manned surveillance drones it will be even easier for the police to engage in this kind of surveillance.

We must, as asociety, however, remain vigilant to the “pernicious threat to privacy” (See Wong, 1990 above) that these kind of state activities entail. [94] In my view, the residents (including Mr. Shah) in this dwelling would have a reasonable expectation of privacy in this particulararea of their property and that expectation is objectively reasonable. It follows that I find that the warrantless aerial surveillance in thisinstance constituted a breach of his rights under s. 8. [95] The aerial phots and references to those photos in the ITO (specifically, par. 88) should be excised on this review.

Failure to Comply with

Section 490 of the Criminal Code [96] The hundreds of items seized from both the residence and the business of Mr. Shah were noted in Exhibits Reports and stored bythe police pending the laying of an Information containing charges and pending this trial. [97] The police, after coming to the conclusion that certain items could be returned to putative complainants in this matter, did, in fact,proceed to return items to various individuals. The evidence is that the police took steps to ensure that items were being returned to theappropriate complainants. However, it is conceded that the personal cell phone of Mr.

Shah was returned to a complainant in error. [98] It is also conceded that the process set out in s. 490 to ensure the fairness for determining the lawful ownership/possession ofitems seized pursuant to the execution of a search warrant was not complied with or followed in any respect. [99] It should be noted at the outset that the weight of authority in British Columbia is that a failure to comply with the mandatoryprovisions found in s. 490 of the Criminal Code will usually constitute a breach of s. 8 of the Charter of Rights.

The leading case is R. v.Martens, 2004 BCSC 1450, which has consistently been followed in trial courts in British Columbia. [100] Once goods or things are seized, the impact on privacy rights does not end there. The Crown submits that while the failure to

strictly comply with the statutory provisions of the Criminal Code may result in a Charter breach the accused must show that he had anongoing residual privacy interest. (See R. v. Craig 2016 BCCA 154 , [2016] BCJ No. 699 (BCCA)). Of course that caseinvolved a determination as to whether the continuing detention in the absence of an order under s. 490 was unreasonable. [101] This case is different. The items are no longer in the custody of the police. There has been an ex post facto determination that theitems were stolen from certain individuals and that the items should be returned to those people.

With the greatest of respect, that iscompletely antithetical to the purpose of the protections contained in s. 490. It is for a judicial officer during a trial (or a hearing under s.490) to determine whether seized items were “stolen” or whether the complainants were the victims of any kind of fraud or theft. [102] The

section imports crucial aspects of procedural fairness in cases of seizures (especially seizures from a personal residence). Itallows a person from whom a thing is seized or a person who claims to be the lawful owner of a thing an opportunity to establish that heis, in fact, lawfully entitled to the possession of that thing. [103] The negligent failure of the police to follow the important post search procedure set out in s. 490 constitutes a clear breach of theapplicant’s rights under s. 8 of the Charter. Manner of search resulted in the mistreatment of Mr. Shah’s infant child [104]

Section 8 of the Charter protects an individual against unreasonable search or seizure. The execution of a search warrant may bedeemed unreasonable simply by how it is carried out. A search must be carried out in a reasonable manner (see Collins above). [105] Here, the applicant asserts that there was a breach of that requirement in that the police had entered his home while he was alonewith his one year old infant child. Mr. Shah was immediately arrested around 0818 hours. The infant child was then watched by severalpolice officers. Ms. Shah is the applicant’s wife and mother of the child.

She was in Vancouver at UBC at the time of the search. Shewas just about to start an exam when she was called and advised of the situation. She immediately left the exam and started on her wayhome. She also called her friend Jennifer to ask her to go to the residence and pick up the infant. Jennifer did do this but was not allowedby the police to pick up the child. Ms. Shah testified that she had been told by officers at her home that her friend could in fact gather thechild. The fact that this was not allowed caused Ms.

Shah to become even more upset than she already was. [106] UBC is quite a distance from the subject residence and it took Ms. Shah about 80 minutes to make the trip. She arrived at thehome just after 10:00 a.m. She was barred from entering the residence by investigators. From the moment she arrived she beganrequesting that her infant child be brought to her. [107] Cst. Guevera testified that the child awoke at 0904 hours (after Mr. Shah had been taken into custody). It was his perception thatthe child was provided to her mother “within minutes” of her arrival.

In fact the child was not returned to her mother until 1049 hours. Hewent outside at 1000 hours to speak to Ms. Shah. When it was suggested to him that she was immediately adamant about getting her babyback he testified at first that he did not recall speaking with her about the baby at all and then admitted that of course, mom would havewanted to see her baby. He said that they did not allow Ms. Shah to go into the house over concerns that she could interfere or tamperwith the search. [108] I find that Cst. Guevera, despite being an honest and candid witness, had a limited memory of his interaction with Ms.

Shah.However, there remains no credible reason as to why Ms. Shah could not have either been escorted into the residence for the purpose ofgathering her infant or why the infant could not have been immediately brought outside. [109] I accept the evidence of Ms. Shah and her mother, Ms. Gilda Shirazi, on these points. That is, Ms. Shah states that she wasimmediately loud and insistent on gaining back custody of her infant child. That evidence seems very consistent with what couldreasonably be expected in the circumstances. [110] When the child was eventually returned to Ms.

Shah the evidence was that she was “wet from head to toe” with urine asapparently no one had changed her diaper. [111] It are these circumstance that lead the Defence to submit that the manner in executing the warrant was unreasonable. [112] The requirement that the search be conducted reasonably limits potential abuse of the authorization to search. [113] I am fully cognizant of the fact that police must be granted the appropriate flexibility when executing a search warrant to ensuretheir own safety and to secure the evidence sought.

However courts have a duty to ensure that the police respect the legal andconstitutional requirements and parameters that they are bound to follow. This is not a matter of judicial micromanagement of policeoperations (as was found in R. v. Cornell 2010 SCC 31 , [2010] SCJ No. 31 at para. 31). It is about a principled and balancedenforcement of the rule of law. [114] Nor should this incident be dismissed as only constituting a possible breach of the rights of the mother and/or the child as theCrown asserts. It was Mr. Shah who had immediate custody of the child upon entry of the police.

It was fair to expect that in executingthe warrant that the police would take all reasonable measures to ensure that the child was passed, at the earliest opportunity, on to hiswife, the mother, as they knew she was enroute to the residence to effect that very purpose. [115] Here, there is absolutely no credible explanation (if one could distill an explanation at all) as to why a one year old child was notimmediately reunited with her mother when she arrived on the scene of the search warrant execution.

The failure is part and parcel ofhow the search warrant was executed. [116] The unexplained failure to immediately reunite the infant child with a parent who has attended the search warrant scene goes tothe reasonableness of the manner in which the search warrant was executed and is therefore properly characterized as an s. 8 breach. The ITO did not, sub-facially and as amplified on review provide sufficient grounds to justify the issuance of a search warrant

for the “Business” Sub-Facial Review of Search Warrant [117] Where on a review application the submissions by defence counsel are with respect to a record that extends beyond the fourcorners of the ITO that is sometimes referred to as an issue of sub-facial validity. When what is set out in an ITO has been “amplified”, itis clear from R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421 that a trial judge’s task is still to consider whether a warrantcould (not would) have issued on the basis of the amplified record. [118] The Supreme Court of Canada summarized the correct approach to reviewing the sufficiency of a warrant in R. v. Campbell, 2011SCC 32 , [2011] 2 SCR 549 at par. 14: 14 The relevant legal principles are not at issue in this appeal. Juriansz J.A. correctly followed the approach to reviewing the sufficiencyof a warrant application recently reviewed by this Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.

In order to comply with s. 8of the Charter, prior to conducting a search the police must provide "reasonable and probable grounds, established upon oath, to believethat an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 168). The question for a reviewing court is "not whether the reviewing court would itselfhave issued the warrant, but whether there was sufficient credible and reliable evidence" to permit an issuing justice to authorize thewarrant (Morelli, at para. 40).

In conducting this analysis, the reviewing court must exclude erroneous information from the ITO andmay have reference to material properly received as "amplification" evidence (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para.58; Morelli, at para. 41).

The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (Attorney General) v.Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; Morelli, at para. 131). [119] With respect to “amplification evidence”, the reviewing court may have reference to additional evidence called within the VoirDire, however this evidence has limited use. It can be used to correct minor errors in the ITO as long as this additional evidence correctsgood faith errors of the police in preparing the ITO rather than deliberate attempts to mislead the authorizing Justice. As the Court said inR. v.

Morelli 2010 SCC 8 at paras. 42 and 43: 42 It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo.Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that wasnot initially supported by reasonable and probable grounds.

The use of amplification evidence cannot in this way be used as "a means ofcircumventing a prior authorization requirement" (Araujo, at para. 59). 43 Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "some minor,technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police had therequisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made" such errors (para.59).

In all cases, the focus is on "the [page273] information available to the police at the time of the application" rather than informationthat the police acquired after the original application was made (para. 59). [120] Cst. Gooding was the affiant of the ITO. At the time of her application the applicant was at least a co-owner of a business calledHollywood Vape Labs Inc. (the Business). Cst. Gooding sought in the ITO to obtain a search warrant for the Business. [121] Paragraphs 122-128 in the ITO are under a heading entitled “Search of Hollywood Vape Labs Inc. Rationale”.

Cross-examinationon these paragraphs amplified the bases upon which the statements therein were considered by the affiant, Cst. Gooding. [122] With respect to paragraph 122 Cst. Gooding knew that a complainant named Benavides purchased three large Husky metal racks.The same style racks were said to be seen in an internet photo of the Business. [123] Furthermore, however, she also read about a visit that Cst. Sall had made to the Business in October of 2017 where he reportedseeing a “large number” of metal racks inside.

A complainant by the name of Shokoohi had told police that he had purchased HomeDepot cards in relation to the alleged fraud. Cst. Gooding concluded in the ITO that she believed that these cards were used to purchasemore racks as that would account for the “large number” reported by Cst. Sall. [124] Cst. Gooding conceded in cross-examination that she didn’t actually know what was purchased with those same gift cards. Shesaid it was “just a belief”. She was asked what, if any, evidence did she have to support her belief in that regard.

She admitted that she didnot have any. [125] Complainants (Shokoohi and Cheema) had reported purchasing clear plastic boxes with red lids. Cst. Gooding attested in the ITOthat while Cheema was not sure where the containers were going he “remembers the containers were going to a “warehouse inCoquitlam”. Cst. Gooding then asserted her belief (par. 123 of the ITO) that the containers were headed to the Business. [126] In fact Cheema’s statement indicated that a cab had come to get “like a hundred” plastic containers and “take it back towherever”.

Cheema notes that he was not told where the boxes were going to but that he assumed that is was to “his supposed warehousein Coquitlam”. [127] On the basis of that information Cst. Gooding concluded that the containers were all going to the Business. [128] Open source photos of the Business show perhaps a couple of plastic containers with red lids. Cst. Sall does not report seeing anycontainers with red lids. [129] However, it is a significant overreach to conclude that the one open source photo (at par. 81(

b) of the ITO) that was observed(after some 150 plastic boxes with red lids were purchased by the complainants) likely contained one of the same containers purchasedby the complainants. (par. 124 of the ITO).

[ 130 ] In paragraph 126 of the ITO Cst. Gooding asserts a belief that at least one of the fraudulently obtained computers purchased (HP desktop and at least one of the Apple Lap-top products) by the Langley RCMP complainants will be found in the Business office. [ 131 ] In cross-examination she said, with respect to the HP desktop computer, that “those kinds of things are used in officer settings”.

She agreed that it was simply a general belief and that any other grounds would have been articulated in the ITO. [ 132 ] With respect to the Apple Laptop she agreed with the suggestion that she had no indication at all that the Apple laptop would make its way to the Business. [ 133 ] At paragraph 127 Cst. Gooding asserts a belief that at least one of the fraudulently purchased TV’s is in the lounge simply due to the fact that the visit of Cst. Sall to the Business revealed that a television was installed on the wall in the lounge. [ 134 ] Cst. Gooding admitted she should have said “may” be present.

She admitted that it was an unintentional misrepresentation. [ 135 ] Paragraph 128 it is asserted by Cst. Gooding that it is “possible” that some of the items fraudulently purchased such as the dishwasher, picnic table and cell phones purchased by the complainants could be inside the lounge area. Again, there is no basis for this statement contained in the evidence. [ 136 ] While there was some reliable evidence that Mr.

Shah was associated to the Business the other assertions supporting the granting of a search warrant for the business were, upon amplification, left sorely wanting. [ 137 ] I agree with the Defence that paragraphs 122(

d) and (h), 124, 126, 127 and 128 should be excised from the ITO. I do not find that paragraphs 139-141 relate, in any material way to the granting of the search warrant for the Business.

Given Defence counsel’s admission that grounds existed for the issuance of the warrant for the residence I decline to consider the excision of those particular paragraphs. [ 138 ] As indicated above, the reviewing court must exclude erroneous information from the ITO and may have reference to material properly received as "amplification" evidence to determine that issue. [ 139 ] Ultimately, even after excision, the question is still not whether the reviewing court would itself have issued the warrant, but whether there remains sufficient “credible and reliable evidence" to permit an issuing justice to authorize the warrant ( see Campbell above). [ 140 ] There may very well have been a proper basis for seeking a search warrant for the Business in this investigation.

However, if there was it was certainly not articulated in any reliable or compelling manner. [ 141 ] In my view, nothing substantive remains which could validly support the issuance of the warrant to search the Business. It follows that the search of the Business was unreasonable within the meaning of s. 8 of the Charter . CONCLUSION Scope of Search [ 142 ] The Crown has not rebutted the presumption of unreasonableness with respect to the seizure of items that cannot reasonably be characterized as falling within the items described in the List. This amounts to a breach under s. 8 of the Charter .

Aerial Surveillance [ 143 ] In my view, the residents (including Mr. Shah) in this dwelling would have a reasonable expectation of privacy in the area of the property in question and that expectation is objectively reasonable. It follows that I find that the warrantless aerial surveillance in this instance constituted a breach of Mr. Shah’s rights under s. 8 . [ 144 ] The aerial photos and references to those photos in the ITO (specifically, par. 88) should be excised on this review. Failure to Comply with

Section 490 of the Criminal Code [ 145 ] The negligent failure of the police to follow the important post search procedure set out in s. 490 constitutes a clear breach of the applicant’s rights under s. 8 of the Charter . Failure to Return Child to Parent in a Timely Manner [ 146 ] The unexplained failure to immediately reunite the infant child with a parent who has attended the search warrant scene goes to the reasonableness of the manner in which the search warrant was executed and is therefore properly characterized as an s. 8 breach.

Sub-Facial Challenge to Warrant for Business [ 147 ] In my view, after considering the amplification evidence with respect to the Business Search Warrant, there remains insufficient credible and reliable evidence to permit an issuing justice to authorize the warrant. The warrant for the Business must be quashed. It follows that the search of the Business was unreasonable within the meaning of s. 8 of the Charter . [ 148 ] With these findings being made the parties are directed to set down a hearing in order to deal with the balance of the defence application under s. 24(2) of the Charter .

____________________________ The Honourable Judge D. St. Pierre Provincial Court of British Columbia