R. v. Sordini Date:, 2013 BCPC 14

Citation: R. v. Sordini Date: 20130108 2013 BCPC 0014 File No: 32251-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH GRECO RICARDO SORDINI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: J. Swales, Q.C. Counsel for the Defendant: J. LeBlond Place of Hearing: Fort St. James , B.C. Date of Judgment: January 8, 2013 [ 1 ] THE COURT: This is my ruling on Voir Dire Number 2, on the Charter applications filed by the defence on Information 32251, an information which charges Mr. Sordini that:

. . . on or about the 5th day of November, 2010, at or near Fort St. James, in the Province of British Columbia, [he] did unlawfully produce a controlled substance, to wit: Cannabis (marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act.

And Count 2, at the same time and place he did unlawfully possess a controlled substance, Cannabis (marihuana), for the purpose of trafficking. [ 2 ] As is not uncommon in cases such as this, the defence has filed a detailed list outlining numerous alleged Charter breaches and seeking ultimately the exclusion of the majority of the Crown's evidence. [ 3 ] The trial commenced on February 21, 2012, in Fort St. James, and lurched along on March 6th, May 1st, August 14th, September 24th, November 26th, and now January 8th, 2013.

A number of rulings have already been made, including the voluntariness of the statements of the accused. [ 4 ] This Voir Dire Number 2 deals with the alleged s. 8 breaches before, during, and after the search of the property of the accused, as well as the 10(

b) right of the accused alleged to have been breached; that is, his right to counsel arising out of the delay in allowing the accused to contact counsel. Facts [ 5 ] On November 5, 2010, Constable McWhinnie of the Fort St. James RCMP detachment learned that one Hilda Schielke, who was serving a conditional sentence, had received permission from her conditional sentence supervisor to stay with the accused, Mr. Sordini, at his residence at 10635 Pinchi Road near Fort St. James. As part of her conditional sentence order, Ms.

Schielke was subject to a curfew and curfew checks by peace officers. [ 6 ] Constable McWhinnie had long suspected that Mr. Sordini was cultivating marihuana. The constable had been conducting an investigation into Mr. Sordini's activities from in or about August of 2009. Constable McWhinnie had examined hydro records and other information that led him to conclude that Mr.

Sordini was probably growing marihuana. [ 7 ] In October 2009, in the company of other officers, Constable McWhinnie conducted a FLIR, that is a forward-looking infrared, heat imaging exhaust examination of the Sordini property with no positive results. As well, Constable McWhinnie testified that during this FLIR investigation, he could smell vegetative marihuana, but could not definitely say it was coming from the 10635 Pinchi Road address of Mr. Sordini. [ 8 ] By November 5, 2010, Constable McWhinnie had suspicions but no real proof of the existence of a grow operation at the Sordini residence.

Therefore, when the opportunity came to enter on the property for the lawful purpose of checking on Hilda Schielke's curfew compliance, Constable McWhinnie enlisted the services of Constable Lance as backup and travelled to 10635 Pinchi Road. On arrival there, Mr. Sordini met the officers and invited them into his residence. [ 9 ] Constable Lance dealt with Ms. Schielke and a second female, Donna Roberts. While Constable Lance was dealing with the two women, Mr. Sordini and Constable McWhinnie engaged in small talk about dogs and the new shop that Mr. Sordini had constructed. Eventually Mr.

Sordini extended an invitation to the constables to have a look inside the shop. The constables readily accepted the invitation. [ 10 ] Upon entering the shop, Constable McWhinnie testified that he smelled the odour of green marihuana, but within a few minutes the odour or smell disappeared. The constables looked around the 30-by-40-foot outbuilding that had a main floor and a loft. The officers examined some of the tools in the shop and a BB gun that was hanging on the wall. During this conversation, Constable Lance went up to the loft and noted that it was being used as sleeping quarters. Mr.

Sordini confirmed that the loft was where he would sleep when he had ladies over at the house (see the transcript March 6, 2012, page 45, lines 19 to 28). He went on to confirm that at times he lived up there. [ 11 ] As the officers looked about the outbuilding, Constable McWhinnie noticed a woodstove and asked if he could look inside it. He received permission to do so, and when he opened the door he saw what he believed to be marihuana plants or stalks. Mr.

Sordini blurted out words to the effect that these stalks were from an outdoor grow op that he should have burned some time ago. [ 12 ] While standing in front of the woodstove, Constable McWhinnie noted some landscaping fabric on the floor. He kicked at the fabric and it rustled. He moved the fabric with his foot, and once the fabric was moved away, the constable saw a green dried leaf-like material commonly called shake. It is at this point that Constable McWhinnie arrested Mr.

Sordini for possession of marihuana. [ 13 ] The Crown conceded that these latter actions by Constable McWhinnie, kicking and moving the fabric to see what was underneath it, constituted a warrantless search for the purposes of gathering evidence against the accused, and was a breach of his s. 8 rights to be secure from unlawful search and seizure. [ 14 ] However, before I move on to consider s. 24(1) and 24(2) and the exclusion, if any, of evidence, certain other facts need to be set out to fully address the Charter issues and alleged breaches in the case at bar. [ 15 ] Immediately after arresting the accused, he was taken outside and placed into a police vehicle after being chartered and warned.

The two officers, Constable McWhinnie and Constable Lance, then proceeded to go to the residence where they arrested both Hilda Schielke and Donna Roberts for "officer safety". Once these ladies were under arrest and placed into a police vehicle, the two officers then searched the residence and the outbuildings, again for “officer safety”. [ 16 ] Constable McWhinnie and Constable Lance then returned to the Fort St. James detachment, where Mr. Sordini was lodged in cells. Constable McWhinnie then took steps to obtain a search warrant for the Sordini residence. Both the information to obtain and the

warrant are in evidence, the warrant is marked Exhibit B and the information to obtain is attached to Exhibit B. [17] The warrant authorizes the search of the outbuildings of 10635 Pinchie, P-i-n-c-h-i-e, Road, Fort St. James. The information toobtain refers to 10635 Pinchi, P-i-n-c-h-i, no e, Lake Road, Fort St. James. [18] Photograph 33 of Exhibit G, the photograph booklet, shows a Revenue Canada document with the Pinchi, no e, Lake Roadaddress as Mr. Sordini's. [19] The officers prepared to return to the Sordini residence to conduct a search for marihuana while the search warrant was beingprepared. Mr.

Sordini was questioned by Sergeant Peterson and I found his utterances to be voluntary within the meaning of the law, butI also ruled that their admissibility would be subject to any Charter application for exclusion. Those utterances confirmed that therewere no booby traps, that the electrical connections were good, as Mr. Sordini was an electrical engineer, and that the main breaker boxwas at the main panel, not in the house. [20] Constable McWhinnie and other constables of the Fort St.

James detachment returned to the Sordini property and seized over235 plants from three grow rooms, together with a substantial amount of paraphernalia such as lights, ballasts, et cetera. [21] The warrant only authorized the search of the outbuildings, it did not authorize the search of the residence itself. At theconclusion of the search, Constable McWhinnie returned to the detachment where, amongst other things, he released Mr. Sordini fromcustody on a promise to appear. Prior to driving Mr. Sordini back to his residence at about 3:40 a.m., Constable McWhinnie alsofingerprinted him.

It is of note that at the time this fingerprinting took place, Mr. Sordini was neither charged with nor convicted of anindictable offence relating to these matters. Charter Issues [22] Amongst the defence Charter issues raised are the following: (1) that the search warrant was invalid due to the wrong address contrary to s. 8; (2) that there was an arbitrary detention pursuant to s. 9, due to the fact there was no reasonable and probable grounds to arrest theaccused; (3) that Mr. Sordini's right to counsel under 10(

b) was breached and, as a result of that, his statements were obtained from him;and (4) there was an unlawful search of the residence by the peace officers for officer safety, prior to the search warrant being appliedfor. Position of the Crown [23] The Crown in its submissions points to the fact that the officers were lawfully engaged in the execution of their duties by doinga conditional sentence order curfew check of Ms. Schielke. The fact that the officers may have had a secondary purpose is not a Charterbreach: see R. v. Nolet, 2010 SCC 24. [24] I agree with the position of the Crown.

Further, I find that at all times up to the point of the conceded s. 8 breach by ConstableMcWhinnie, the constables were invitees, there with the permission of Mr. Sordini. Even at the point of opening the woodstove, I findthat Constable McWhinnie sought and received permission to do so. [25] I pause to note that the defence has raised in their submissions today the issue of whether or not this was a Kokesch situation,that is where the officers were trespassing for the purposes of obtaining evidence. I find that that sort of circumstance does not applyhere.

In Kokesch there was no right to be on the property - here the officers were present with the permission of Mr. Sordini. [26] Following the moving of the fabric with his foot, the s. 8 breach that is conceded, all of the subsequent actions by the policehave to be examined in light of that breach. [27] Any search incidental to arrest could only have been lawful for officer safety if the search was limited to the person ofMr. Sordini or his immediate surroundings. For the police to conclude that a search incidental to arrest in an outbuilding gave them theright to search a dwelling house is preposterous.

Even more egregious is the fact that not only did they do a warrantless search ofSordini's dwelling house, they arrested Ms. Schielke and Ms. Roberts, and those arrests are totally without any legal justification andthey further demonstrate the absolute flagrant disregard by the police for the Charter rights and freedoms of anybody at the Sordiniresidence that evening. [28] As to the lawfulness of the arrest of these two women as found ins: see R. v. Bui and Nguyen, 2006 BCPC 47 , 2006BCPC 0047; R. v. Bui and Do, 2005 BCPC 210 , 2005 BCPC 0210; and also R. v.

Whitaker, 2008 BCCA 174. [29] I note that the arrests of Ms. Schielke and Ms. Roberts were not direct violations of any Charter rights of Mr. Sordini, but Iinclude them at this time as an indication of the total lack of good faith demonstrated by the RCM Police in the case at bar. Also withinthis category is the s. 8 breach of Mr. Sordini's rights when he was fingerprinted before being charged. [30] Other courts have considered this issue without providing any specific remedy: see R. v. Lee, 2012 BCSC 1548, paragraph 68,where Mr.

Justice Romilly found that because the wrongful obtaining of fingerprints and photographs were not used to incriminate theaccused, the issue was moot; and also see R. v. Truong, [2011] B.C.J. 2067 at paragraph 29 where the Supreme Court justice concludedthat the accused's rights had been breached by fingerprinting and photographing him without lawful authority, but the breach had noconnection, either causal or temporal, with any evidence the Crown relied on.

[31] I note in the cases provided to me by Mr. LeBlond today, the court in the case of R. v. Huynh, cited as [2010] B.C.J. No. 2140,Madam Justice Wedge commented on the fact of the fingerprinting being one of the factors considered as a Charter breach. [32] Given the concession of the Crown that Constable McWhinnie did breach the accused's s. 8 rights by kicking and moving thefabric over the shake, I must now examine what remedies, if any, are appropriate following that breach pursuant to s. 24. [33] The starting point is the consideration of R. v.

Grant, 2009 SCC 32, Suberu, 2009 SCC 33, and Harrison, 2009 SCC 34, as setout by Mr. Justice Frankel in R. v. Reddy, 2010 BCCA 11. Commencing at paragraph 91, Mr. Justice Frankel commented: [91] The Grant factors are succinctly stated at paragraph 71 of that decision.

In deciding whether to admit or exclude evidence, acourt must now assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statemisconduct); (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little); and (3) society's interest in the adjudication of the case on its merits.

See also: Harrison at para. 2 [92] With respect to the first factor — seriousness of the breach — the greater the level of state misconduct, the greater will be the needof the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to supportexclusion . . . Further, as the Chief Justice and Charron J. noted (at para. 75): "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 wilful blindness cannot be equated with goodfaith . . . [93] As for the second factor—impact of the breach on the accused — it was observed that "[t]he impact of a Charter breach may rangefrom fleeting and technical to profoundly intrusive".

The more serious the impact is on the rights of the accused, the more likely it willbe that exclusion is warranted . . . [94] The last factor — society's interest in a decision on the merits — involves the question of "whether the truth seeking function of thecriminal trial process would be better served by admission of the evidence, or by its exclusion" . . . The reliability of the evidence is animportant consideration, as is the importance of the evidence to the truth-seeking function of the trial.

Although "seriousness of theoffence" remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on thelong-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction . . . [34] Dealing then with the seriousness of the Charter-infringing state conduct, in the case at bar the initial warrantless search byConstable McWhinnie was a violation of the right of Mr. Sordini to be secure from unreasonable search and seizure.

These policeactions being without a warrant are unreasonable. [35] It follows, therefore, that the arrest of Mr. Sordini was based solely on an unreasonable search and seizure. Equally obvious,therefore, is that any subsequent search of his person and most certainly his dwelling house was unreasonable. The law is clear thatabsent any exigent circumstances, and none existed here, a warrantless search of a dwelling house is one of the most serious Charterbreaches and a serious invasion of a person's privacy interests. [36] In my view, these searches constituted serious state misconduct.

The conduct of the police in the case at bar was furtherexacerbated when they did not inform the justice of the peace issuing the search warrant that they had already entered the dwelling houseand conducted a room-by-room search. As well, the error by the police in failing to obtain a warrant for the correct address furtherunderscores the lack of care and attention to detail that is required to obtain and execute a valid search warrant. (As to other cases thatconsider the effect of a wrong address on a warrant to search see: Parent, (YK CA), (YK CA), 47 C.C.C. (3d) 385;Silvestrone, (B.C.

CA), Silverstrone, [1991] B.C.J. No. 2259 (B.C. CA); Charlie, [1992] Y.J. No. 97 (YK TC).) [37] In the case at bar, I find that the incorrect address is a further breach of the rights of Mr. Sordini.

[ 38 ] Therefore, given all of the foregoing, I find that on the first Grant test, the many breaches of the Charter rights of the accused constituted serious state misconduct that ought not to be condoned. [ 39 ] Further, I would pause to note on the good faith issue, the recent decision of the Supreme Court of Canada in Aucoin , dated November 30, 2012, and the citation is given as 2012 SCC 66 . In that case, the Supreme Court of Canada was dealing with a person who had been detained and placed in the back seat of a police car to be given a traffic ticket.

In the course of being placed in there and searched, they found some cocaine, and the matter proceeded on whether or not the cocaine should be admissible. [ 40 ] It was conceded that the officer had no right to arrest the accused and put him in the back seat of a car for the purposes of writing him a ticket.

However, the Supreme Court of Canada, in dealing with whether or not this was done in good faith allowed the evidence in, five to two, commenting in the headnote as follows: Where the police act in good faith and without deliberate disregard for or ignorance of Charter rights . . . the seriousness of the breach may be attenuated. [ 41 ] Dealing now with the second Grant test, I find the impact of these breaches on Charter protected rights and interests is high.

If, as Grant sets out, the admission of evidence may send a message that individual rights count for little, then this is a case that must clearly underscore that. Here the actions of the agents of the state towards Mr. Sordini and his houseguests are actions where the courts must disassociate themselves from that conduct. [ 42 ] As was stated in Reddy in paragraph 92 : . . . the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct.

Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion . . . [ 43 ] I find no evidence would support any good faith on the part of the state agents. As stated earlier, in their actions towards Ms. Schielke and Ms. Roberts, plus the inappropriate fingerprinting of Mr.

Sordini, while not providing separate Charter relief, these actions speak volumes about the absence of good faith on the part of the police. [ 44 ] The third and last Grant test is set out in paragraph 94 of Reddy , which I will repeat for fullness: The last factor — society's interest in a decision on the merits — involves the question of "whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" . . .

Although "seriousness of the offence" remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction . . . [ 45 ] Given my conclusions on the first two Grant points, that the actions of the state agents were profoundly intrusive and conduct that the court must disassociate itself from, I find that all of the evidence following from the conceded s. 8 breach by Constable McWhinnie moving the fabric must be excluded. [ 46 ] I also find that the incorrect address on the warrant resulted in the warrant being invalid.

Therefore, the search of the property that followed, found the marihuana plants and paraphernalia, is also invalid and all of that evidence is to be excluded. [ 47 ] Given my ruling above, I do not have to deal with the statements of the accused and any 10(

b) breach. As well, the other outstanding issue related to the expert opinion evidence as to the smell of marihuana by Constable Breckon, again for the reasons above, I find I do not need to decide that point at this time. [ 48 ] So what I have done is basically excluded all of the Crown's case. [ 49 ] MR. SWALES: Yes, I understand that, Your Honour. [ 50 ] THE COURT: Yes. [ 51 ] MR. SWALES: I have one further witness to call.

He would be the expert witness, but without any factual basis upon which to ask his opinion, there seems little point in doing that, and so I would close the Crown's case and invite my friend to make an application. [ 52 ] MR. LEBLOND: Application for an acquittal to be entered, Your Honour, on the grounds that there is no evidence to support a conviction. [ 53 ] THE COURT: Given the Charter ruling I have just made, the Crown has taken the prudent course and has closed its case. The defence makes an application of, I will say, insufficiency, no proof beyond a reasonable doubt. [ 54 ] Stand up, Mr. Sordini.

The Charter protects everybody. Accordingly, I find you not guilty, sir. You are free to go. (REASONS CONCLUDED)