R. v. Chapman and Honeyman Date:, 2016 BCPC 275

Citation: R. v. Chapman and Honeyman Date: 20160516 2016 BCPC 275 File No: 49741-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KYLE DAVID CHAPMAN and CHAD HONEYMAN RULING ON APPLICATION OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: A. Bayliss Counsel for the Defendant: (for Kyle Chapman) J. Avis Place of Hearing: Vernon , B.C.

Date of Hearing: April 14, 2016 Date of Judgment: May 16, 2016 INTRODUCTION [ 1 ] The police executed a search warrant at a house in Spallumcheen B.C. on November 19, 2014. They discovered a marijuana grow operation, and charged Kyle David Chapman and Chad Honeyman with production of marijuana. Mr. Chapman now applies under the Charter of Rights to have a voir dire declared so that he can challenge the admissibility of evidence to be used against him. Mr.

Chapman says that there is a reasonable basis upon which the Court could find a breach of the Charter , and that there is a reasonable likelihood that the evidentiary hearing can assist in determining the issues before the court. [ 2 ] The Crown is opposed to Mr. Chapman’s application to have a voir dire declared. The Crown takes the position that the Information to Obtain was detailed and complete, and will inevitably be upheld upon review. [ 3 ] Mr. Honeyman is taking no position on this application, and has said that he would not join Mr.

Chapman’s Charter application if a voir dire was declared. [ 4 ] Following the submissions of counsel, I ordered that a voir dire be declared at the trial, with reasons to follow. THE BASIS OF THE WARRANT TO SEARCH [ 5 ] The search of the residence was authorized by a search warrant granted by a Judicial Justice of the Peace on November 19, 2014. The application was based on an Information to Obtain sworn by Constable Tyler Jackson.

In his Information to Obtain, Constable Jackson pointed to a number of facts which he said supported his belief that there was a marijuana grow operation in the residence to be searched. The most significant facts were: 1. About four months earlier, an anonymous person told police that he or she thought marijuana was being grown at the residence because of an odor of skunk, and vehicles coming and going. 2. An odor of marijuana was detected near the residence. Ten days earlier, on November 9, Constable Jackson detected the slight odor of marijuana when standing 7-10 m from the residence.

Constable Jackson and a second officer detected a light but steady odor of marijuana on November 16. A third officer detected an odor of marijuana on November 18. 3. On November 12, Mr. Chapman was detained in a traffic stop. The officer conducting the traffic stop smelled the odor of marijuana on Mr. Chapman’s clothes and person. 4. The electrical consumption and use of air conditioning at the residence was inconsistent with Constable Jackson’s personal experience as a homeowner.

The amount of electricity being used, and the manner in which the air conditioning was used, appeared to Constable Jackson to be consistent with the presence of a marijuana grow operation. 5. The wall above the foundation on the northeast side of the residence was unusually warm, and there were signs of unusual warmth along the eastern and southern sides of the residence, where the structure of the dwelling connected to the foundation. The unusual warmth was consistent with the presence of a marijuana grow operation. [ 6 ] Constable Jackson included other observations in his Information to Obtain.

He referred to seven occasions on which he had conducted surveillance at the residence, and had not detected any unusual odor. He also referred to occasions on which surveillance had been conducted by a team of two officers, and only one had detected an odor of marijuana while the other had not.

APPLICATION TO DECLARE A VOIR DIRE : THE “VUKELICH APPLICATION” [ 7 ] The law is clear that trial judges have the authority to declare a voir dire in which the accused can challenge the admissibility of evidence to be used against him or her, or to decline to embark upon an evidentiary enquiry when the accused is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. The decision is made following what in British Columbia is known as a “Vukelich Hearing”. The hearing is so named for the leading case in the area, R. v. Vukelich

(1998) C.C.C. (3d) 383 (B.C.C.A.). [ 8 ] The rigour with which the law in R. v. Vukelich is applied and the way in which a trial judge exercises his or her discretion in relation to an application for a voir dire is case-specific and highly contextual.

At least three factors will shape the exercise of the trial judge’s discretion: 1. the extent to which the anticipated evidence underlying the alleged Charter breach is legitimately in dispute; 2. the state and clarity of the law on the issue sought to be litigated, and 3. the infinite number of practical considerations that will arise in any particular case. [ 9 ] An accused person is not entitled as of right to a voir dire to challenge the admissibility of evidence on constitutional grounds. However, the threshold for embarking on a voir dire is low.

The Vukelich hearing itself was never intended as a mechanism to prevent investigation of alleged Charter breaches where a sufficient foundation for the alleged breach could be demonstrated, nor was the Vukelich hearing itself intended to be a protracted examination of the precise details of the accused’s proposed Charter application.

[ 10 ] What underlies the Vukelich enquiry is the need to balance the accused’s fair trial interests against the public interest in the efficient management of criminal trials by avoiding lengthy and unnecessary pretrial applications in circumstances where the remedy sought could not reasonably be granted. [ 11 ] A review of rulings following Vukelich hearings suggests that the following procedural steps should be observed: 1. The Vukelich application must be made before or at the time when the evidence is tendered.

Counsel may provide a copy of the Information to Obtain in question to the trial judge, in advance of the application. 2. The procedure should be flexible and should be adapted to the circumstances of the case. 3. The onus is on the accused applying to have a voir dire declared. 4. The application should be determined upon the statements of counsel, if possible. 5. Counsel for the accused should summarize the facts that the accused is relying on in support of his or her submission that there has been a Charter breach. 6.

The Court should assume for the purposes of the Vukelich application that the facts as alleged by counsel are true. 7. If the trial judge declines to declare a voir dire on the basis of the statements of counsel, counsel for the accused must either choose to go further, or to accept the Court’s ruling, subject to his or her eventual right of appeal. 8. When counsel for the accused chooses to go further, a more formal approach will be required. That may include the filing of affidavits or an undertaking to adduce evidence.

In essence, there must be some factual basis supporting the application before the trial judge can declare a voir dire . 9. The accused is not required to file an affidavit, as it may expose him or her to cross-examination. 10. Ultimately, if the statement of counsel or the evidence adduced on the Vukelich application do not disclose a basis on which the court could reasonably make the order sought, the application to declare a voir dire should be dismissed. APPLICATION TO THE CASE AT BAR [ 12 ] In the case at bar, counsel for Mr.

Chapman has stated that he seeks to cross-examine Constable Jackson with respect to a number of issues, but primarily about the steps taken to identify the source of the odors of marijuana and the weight to be given to those observations. The observations of odors vary depending on the date and the person observing or not observing the smell. There may be a reasonable explanation. However, the evidence with respect to the presence of an odor may be in dispute, if one officer could smell an odor and an officer standing next to him could not.

In the absence of the evidence of odors, it is possible that the warrant could still have been issued, but there could also be a reasonable basis on which to find a violation of the Charter . [ 13 ] I note as well that the time required for a challenge to the sufficiency of an Information to Obtain is not substantial, particularly since Mr. Honeyman is not joining in the application. This is a practical consideration that militates in favour of declaring a voir dire . [ 14 ] In all the circumstances, there is a reasonable likelihood that a hearing of Mr.

Chapman’s Charter application could assist in determining the issues to be decided on the trial, and I order that a voir dire be declared. ___________________________ The Honourable Judge R. Hewson