R. v. Sagmoen, 2022 BCPC 36

Citation: R. v. Sagmoen 2022 BCPC 36 Date: 20220308 File No: 55174 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CURTIS WAYNE SAGMOEN RULING ON APPLICATION OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: S. McCallum Counsel for the Defendant: L. Helps Place of Hearing: Vernon, B.C. Dates of Hearing: February 23, March 1, 2022 Date of Reasons March 8, 2022

RULING ON VUKELICH HEARING [ 1 ] On March 1, 2022, I gave my decision on an application made at the outset of this trial to determine whether voir dires should be held to ascertain whether Mr. Sagmoen’s Charter rights had been violated. I held that Mr. Sagmoen could have a voir dire with respect to the sub-facial validity of the search warrant relied on by police to enter Mr. Sagmoen’s property. I stated I would provide a written decision with my reasons. These are my reasons. Charge and Allegations [ 2 ] Mr. Sagmoen is charged with assaulting Cpl.

Kovacs, a police officer engaged in the execution of their duty, on October 29, 2020. [ 3 ] The evidence expected to be called at the trial is that on the afternoon of October 29, 2020, police attended at Mr. Sagmoen’s residence, where he lived with his parents, to execute a facially valid search warrant and to arrest him for allegations of breaching two court orders. The alleged breaches were using devices capable of accessing the internet, which may have included a cell phone. The search warrant related to the investigation of those alleged offences. Cpl.

Kovacs was the directing mind behind the execution of the search warrant and the anticipated arrest of Mr. Sagmoen. [ 4 ] Mr. Sagmoen and his parents lived at a rural location. On the date in question, the police had to climb over a locked gate on the driveway to get to the residence. When the police arrived at the front door, they knocked and Mr. Sagmoen’s mother answered. Cpl. Kovacs told her of the warrant to search the residence. Apparently the police were let into the residence by Mr. Sagmoen’s mother and police saw Mr. Sagmoen sitting in the living room. Cpl. Kovacs saw Mr.

Sagmoen’s mother reach for a cell phone that was on a chair in the living room and told her that the device would be seized. Mrs. Sagmoen gave it to Cpl. Kovacs. Shortly after, Cpl. Kovacs went outside the residence with Mrs. Sagmoen and her husband, where Cpl. Kovacs discussed the process of executing the search warrant. [ 5 ] Other police officers remained inside the residence and tried to arrest Mr. Sagmoen but had difficulty doing so. Mr. Sagmoen stated that arresting him would lead to a fight, that he would assault one of the police officers and demanded that the one officer leave the house.

That officer left and eventually Mr. Sagmoen cooperated, was arrested and handcuffed. There is no issue that police afforded Mr. Sagmoen his Charter rights in a timely way. Almost all of the interaction between the police and Mr. Sagmoen was video recorded, and all of the significant interaction, for the purposes of this hearing, was recorded. [ 6 ] When Mr. Sagmoen was led out of the residence to where his parents and Cpl. Kovacs were, Mr. Sagmoen deviated from the path leading away from the residence and as he approached Cpl.

Kovacs, he lowered his body and lunged toward her with his left shoulder in what was described as a body check, pushing her into the wall of the house. That is the offence alleged. Alleged Charter Violations [ 7 ] Mr. Sagmoen provided sufficient notice with respect to several alleged violations of his rights under the Canadian Charter of Rights and Freedoms [1] (“ Charter ” ). Although if Mr. Sagmoen is convicted, there may be a Charter argument alleging an abuse of process, it was clear that issue was not being litigated at this stage.

The defence wishes to challenge the validity of the search warrant and seeks to establish that Mr. Sagmoen was arbitrarily detained. [ 8 ] If I find that Mr. Sagmoen’s Charter rights were violated, no remedy is sought other than a finding that Cpl. Kovacs was not acting in the execution of her duty at the time of the alleged assault. If that finding is made, Mr. Sagmoen would then only be facing a charge of assault under s. 266 of the Criminal Code , since that is an included offence of the charge he faces. Mr. Sagmoen sought to have two separate voir dires , one for each alleged Charter violation.

Vukelich Hearing [ 9 ] The Crown requested a Vukelich hearing [2] to determine whether the voir dires should proceed. By agreement, the Crown made its submissions first, as Crown counsel had prepared a detailed account of the anticipated evidence at the trial, summarized above. Although that was very helpful in setting the stage for the arguments, in the end it appeared that the Crown made a number of arguments with respect to issues the defence was not raising.

Had the defence gone first as is usual, the nature of the Charter breach allegations would have been clearer and the Crown’s submissions would have undoubtedly been more focussed. I will deal only with the issues pursued by Mr. Sagmoen. [ 10 ] I also note that my

summary of the facts and submissions is precisely that and may not reflect all of the nuances made by counsel. If facts and submissions are not addressed in these reasons, I have nonetheless considered them. After setting out the law governing this hearing, I will deal with each aspect of the request for a voir dire in turn. Law [ 11 ] The purpose of a Vukelich hearing is to screen pre-trial applications. In R. v. Orr, [3] the Court of Appeal summarized the general principles that I must consider and apply. First, the applicant has the burden of proving a violation of his Charter rights on a balance of

probabilities; second, there must be a factual foundation for the application; and third, there is no automatic entitlement to a voir dire . The court framed the test as follows: [46] Third , there is no automatic entitlement to an evidentiary voir dire in a Charter claim.

As a result, where there is no reasonable likelihood that a voir dire can assist in determining the issues before the court, or no reasonable prospect of success in proving an infringement or obtaining the sought-after relief, a trial judge has clear jurisdiction to decline an evidentiary voir dire and to summarily consider and dismiss the application. [Citations omitted . ] [ 12 ] In addition, I can revisit a Charter ruling made during the trial when necessary because the interests of justice require it. [ 13 ] To justify a voir dire , Mr.

Sagmoen must demonstrate a reasonable basis on which the court could find a breach of his rights that will assist in determining the issues in this trial. [4] Mr. Sagmoen must state with reasonable precision the grounds for the application by way of submissions that include references to facts that support the submissions, although the threshold he must meet is low. [5] I have to assume the facts sought to be proved as true, and assess whether those facts could support the finding and granting of the remedy sought.

If the remedy could not follow, I should not permit a voir dire on the issue. [6] On the other hand, where there is a reasonable basis for the alleged Charter violation, there should be a voir dire. [7] Arbitrary Detention [ 14 ] Mr. Sagmoen alleged that he was arbitrarily detained because his arrest was not made with objectively reasonable and probable grounds. Mr. Sagmoen says, and the Crown acknowledges, that Cpl. Kovacs had previously directed other officers to arrest Mr. Sagmoen and those officers arrested him based on her directions. Defence Position [ 15 ] Relying on R. v. Debot, [8] Mr.

Sagmoen argued it is Cpl. Kovacs’ state of mind and knowledge that governs the lawfulness of Mr. Sagmoen’s arrest. The defence alleged Cpl. Kovacs knew she did not have reasonable and probable grounds to arrest Mr. Sagmoen for the offences but despite that, still directed the other officers to arrest him. Accordingly, the arresting officers were not acting in the execution of their duty when arresting Mr. Sagmoen. The defence argued that if Cpl. Kovacs’ presence at the Sagmoen residence was for the purpose of effecting Mr. Sagmoen’s arrest, then she also was not in the execution of her duty.

Crown Position [ 16 ] The Crown argued that the arbitrary detention argument did not apply because Cpl. Kovacs was not engaged in arresting Mr. Sagmoen. Her presence at the scene had nothing to do with his arrest. Accordingly, any alleged Charter violation related to his arrest has no impact on whether Cpl. Kovacs was in execution of her duty and therefore will not assist in the determination of the issues at trial. Analysis and Conclusion [ 17 ] The purpose of the defence argument is to remove a lawful basis for Cpl. Kovacs’ presence at the time she was allegedly assaulted.

The Crown is not relying on the arrest as a basis for establishing that Cpl. Kovacs was properly engaged in her duties. [ 18 ] On the second day of submissions, with the Crown’s acknowledgment that they would not argue that Cpl. Kovacs was involved in Mr. Sagmoen’s arrest at the time of the alleged assault, Mr. Sagmoen agreed that a voir dire was not needed. [ 19 ] Accordingly, there is no need for a voir dire to establish that Mr. Sagmoen was arbitrarily detained to raise a doubt about whether Cpl. Kovacs was in the execution of her duties.

That has been established, so there is no point in pursuing a hearing if it would only be potentially to a remedy for a Charter violation. [9] Since Mr. Sagmoen already has what he seeks, his application for a voir dire on this issue is dismissed. Validity of Search Warrant [ 20 ] Mr. Sagmoen wanted to argue that the Information to Obtain (“ITO”) the search warrant was invalid on its face. The search warrant is also sought to be challenged on the basis that Cpl.

Kovacs, who was a sub-affiant, was less than forthcoming, leading to material non-disclosure that would affect the issuance of the search warrant to the extent that it could not properly have been issued. If established, both may result in a finding that Mr. Sagmoen’s rights under s. 8 of the Charter were breached. I will deal with each proposed challenge separately. Facial Invalidity Crown Position [ 21 ] The Crown submitted that there was nothing on the face of the ITO that could lead to a viable allegation of a breach of Mr. Sagmoen’s

section 8 Charter right. A warrant is presumed valid since it is issued by a justice. If it is being executed properly, that is, the police officers who are executing it stay within the parameters of the search warrant, the Crown submitted it could never be said that officers were not in the valid execution of their duty. If it is later found that the search warrant was invalid, then a Charter remedy of

excluding seized evidence could be obtained, but not a remedy that simply says an officer was not in the execution of their duty. Defence Position [ 22 ] With respect to the facial-validity challenge, defence counsel acknowledged that the challenge was limited to the ITO because the search warrant was valid on its face. The defence argument would be that since Cpl. Kovacs was fully aware of material non- disclosure, she knew or ought to have known that the search warrant could not have been granted and therefore was invalid. And if that was so, Cpl.

Kovacs was not acting in the execution of her duty at the time that Mr. Sagmoen is alleged to have assaulted her. [ 23 ] Defence counsel agreed that for their argument, there would have to be some evidence that Cpl. Kovacs saw the ITO before going to or while at Mr. Sagmoen’s residence, before the alleged assault. There was an issue with disclosure of information relating to an entirely different allegation which defence counsel needed to review. If no such evidence was within that disclosure, Mr. Sagmoen would not pursue the facial-invalidity challenge. It was not clear that such evidence was found.

Analysis and Conclusion [ 24 ] Where the facial validity of an ITO is put in issue, the court must examine the ITO and determine whether the issuing justice could have issued the search warrant based on the contents of the ITO. [10] That may include excising information that on its face does not support the warrant. [11] For Mr. Sagmoen’s facial-invalidity argument, there would have to be some evidence in the voir dire confirming Cpl. Kovacs saw the ITO.

If there is evidence required, other than the ITO and the search warrant, it is no longer a challenge on the face of the documents: it is a sub-facial challenge. [ 25 ] No submissions were made regarding alleged deficiencies on the face of the ITO. I am not satisfied that Mr. Sagmoen has identified or demonstrated a problem with the facial validity of the ITO and I dismiss his application for a voir dire on that alleged Charter violation.

Sub-facial Invalidity Crown Position [ 26 ] The Crown’s position on the sub-facial validity mirrored that on the other Charter issues: none of them could affect the outcome of the trial on its merits. Despite significant research, the Crown was unable to find much case law where “execution of duty” was considered in the context of an assault. In the end, the Crown appeared to rely in the main on two cases from British Columbia. [ 27 ] R. v. Lord [12] was a Chambers’ decision on an Application for Leave to Appeal by Donald J.A. on November 27, 1997. Mr.

Lord was convicted of resisting a peace officer in the execution of his duty. The officer had to try to arrest Mr. Lord on an outstanding arrest warrant. Mr. Lord refused to leave his car and told the officer the warrant had been looked after. Mr. Lord had to be forcibly removed from his car. He challenged the validity of the warrant at trial. The trial judge held that as far as the arresting officer knew, the warrant was valid on its face and the officer did not have to look behind it.

For that reason, the trial judge found that the officer was in the lawful execution of his duty. [ 28 ] In subsequent civil proceedings instituted by Mr. Lord, a Supreme Court Justice presiding over a

summary hearing concluded that the warrant was invalid. Mr. Lord appealed his conviction, claiming it was necessary to redress a serious injustice given the conflicting findings.

Donald J.A. referred to a prior decision of the Court of Appeal that held that a warrant of arrest that was valid on its face could not be subject to what would be, in effect, a collateral attack, and stated that the police officer was obliged to act on the warrant that was facially valid. [ 29 ] The Crown in this case raised the policy concern that if police who were simply engaged in the proper execution of a facially- valid search warrant were assaulted, and later at trial the accused was able to avoid conviction with an ex post facto justification, then police would face increased risks in their execution of search warrants.

The Crown’s argument with respect to public policy is encapsulated at paragraph 18 of Lord , where Mr. Justice Donald said: 18 . . . [I]f the validity of warrants or orders could be questioned on the street and ignored by enforcement authorities and those subject to the order alike, the orderly processes of the law would break down. It would not have been proper for the arresting officer here to walk away from Mr. Lord simply on Mr. Lord's assertion that the warrant had been taken care of. [ 30 ] The second case relied on by the Crown was R. v.

Henry. [13] It too was an application for leave to appeal by the accused, although heard by a full panel at the hearing on the merits. Leave to appeal was granted to allow the court to consider whether Charter challenges amounted to an improper collateral attack on the facial validity of an arrest warrant. [ 31 ] An arrest warrant for Mr. Henry had been issued by a justice of the peace. At trial, Mr. Henry made a Charter challenge to the validity of the warrant.

The trial judge found that the justice of the peace could not have properly issued the arrest warrant, so the police were without authority to arrest and search Mr. Henry. The seized evidence was excluded and Mr. Henry acquitted. The

summary conviction appeal judge found that the trial judge had erred in excluding the evidence and Mr. Henry appealed that finding. [ 32 ] The Crown on appeal raised an argument that the Charter challenge to the issuance of the arrest warrant was an impermissible collateral attack on the facially valid arrest warrant. The court made an important distinction between the issues in Lord and Henry : in Lord, the issue was whether the arrest was unlawful; in Henry, the issue was whether the justice of the peace who issued the arrest warrant had violated Mr. Henry’s Charter rights in doing so.

The court noted that an arrest warrant places a duty on a peace officer to execute it. Accordingly, the police officer in Henry was acting in the lawful execution of his duty when he arrested Mr. Henry on the

arrest warrant, which was valid on its face. That position is adopted by the Crown in these proceedings, which leads to their proposition that the Charter challenges are irrelevant at this point. [ 33 ] The Crown also argued that no Charter remedy is sought by Mr. Sagmoen, and since nothing was seized, there is nothing to exclude under s. 24(2) of the Charter . Defence Position [ 34 ] The defence relied on well-known principles and case law. Mr. Sagmoen submitted that Cpl. Kovacs was the main sub-affiant and that there was significant and material non-disclosure in the ITO.

Paragraph 33 of the ITO was referred to as an example. The ITO did not include the following facts: when the police attended on a prior occasion, the gate to the Sagmoen property was locked, the computer that the police say they saw on that date was not observable from the front door where the police impliedly may have had permission to go, and the police walked around the property looking for Mr. Sagmoen. The defence argued those were separate violations of Mr.

Sagmoen’s Charter rights that would result in the evidence gathered being excised from the ITO. [ 35 ] As I understood it, the defence would also want to show that Cpl. Kovacs did not have objectively reasonable and probable grounds to direct other officers to arrest Mr. Sagmoen, which would impact Cpl. Kovacs’ credibility.

The defence argued those examples, and other points of material non-disclosure, were sufficient to satisfy me that there was a factual basis for a voir dire into the sub-facial validity of the search warrant. [ 36 ] With respect to the Crown’s argument that the validity of the warrant was irrelevant, the defence argued that if the search warrant was improperly issued, then Cpl. Kovacs was not in the execution of her duty when she was on the property because there was no other basis in law for her and the other police officers to be on the property.

The defence advocated that the distinction between the issues in Lord and Henry identified by the Court of Appeal favoured holding a voir dire . [ 37 ] Finally, the defence submitted that the material non-disclosure alleged may involve an element of fraud. It is arguable that a collateral attack is permissible where there is fraud [14] , as alleged by Mr. Sagmoen. Analysis [ 38 ] The first issues to address are whether the validity of the search warrant is an immaterial issue in the trial. Related to that is whether it is a permissible or an impermissible collateral attack.

In my view, it is potentially material and likely legally permissible. I will first deal with permissibility, then set out why it appears to be material to the issues at trial. The Challenge to the Search Warrant may be Permissible in Law [ 39 ] In Henry , the court grappled with the question of whether a trial judge could use the Charter to review the decision to issue an arrest warrant, or whether doing so would be a collateral attack on a court order, which is generally impermissible.

A collateral attack is an attack made in proceedings which are not specifically aimed at the reversal, variation, or nullification of the order or judgment in question.

In effect, the court in which a collateral attack is made has no jurisdiction to adjudicate the issue. [15] [ 40 ] The Crown in Henry noted, in arguing it would be a collateral attack, that there was a fundamental difference between an arrest warrant and a search warrant: search warrants were permissive and did not have to be executed, whereas arrest warrants commanded all of the peace officers within the territorial division of the issuing justice to arrest the accused. The Crown argued it was for that reason a police officer must execute a facially valid arrest warrant.

The court agreed with that proposition. [ 41 ] That difference between the two kinds of warrants is a reasonable basis for an argument that the principle articulated in Henry that was adopted by the Crown in this case – a facially valid arrest warrant results in the officer being in the execution of their duty – is irrelevant to the case at bar. Cpl. Kovacs did not have an arrest warrant but a search warrant, which did not have to be executed, so there was no requirement that Cpl.

Kovacs be on the property to execute it. [ 42 ] Further, the court in Henry noted that the Crown’s argument did not recognize the real issue, which was not the lawfulness of the arrest but whether the issuance of the warrant was constitutionally sound. After analysing various cases, the court’s conclusion regarding whether a Charter challenge is an impermissible collateral attack on the facial validity of a warrant is set out at paragraph 41: [41] This reasoning applies equally to a constitutional challenge to an arrest warrant.

When an accused applies to exclude evidence under s. 24 of the Charter because the issuance of an arrest warrant has violated his Charter rights, the trial judge must first consider whether the arrest warrant meets constitutional requirements . As a court of competent jurisdiction, a trial judge cannot decline to conduct such a review on the basis of lack of jurisdiction . [Emphasis added.] It is arguable that the same would apply to a search warrant. [ 43 ] R. v. Plamondon [16] was not provided but is relevant. The decision was issued three days after Lord , though Donald J.A. was not part of the panel. Mr.

Plamondon was convicted of assaulting a police officer in the execution of their duty. The first issue on appeal was whether the officer was in the execution of her duty at the time of the assault. [ 44 ] Mr. Plamondon and a neighbour lived in separate trailers on the same property and had been drinking together. There was a dispute between them, the neighbour was injured and police were called. The police officer knocked on Mr. Plamondon’s trailer door loudly and announced her presence. There was no response so she opened the trailer door and again announced she was there.

She was not sure if anybody was in the trailer. She entered the trailer, approached Mr. Plamondon who was asleep or passed out, identified

herself and asked Mr. Plamondon to sit up and talk to her. She told him that he was under investigation for an assault. The officer testified that she entered the trailer only to see if he was there and if so, to question him. Mr. Plamondon was alleged to have attacked the police officer, which led to the charge. [ 45 ] For the purpose of my analysis, the most relevant aspects of the decision are set out at paragraphs 29 [17] and 30: 29.

In order to establish the actus reus of the offence under s. 270(1)(a), the Crown must establish that, at the time of the assault, the complainant was in the execution of his or her duty. If the officer's actions exceed his or her powers, the offence as charged is not made out . 30. Most of the cases in which an offence under s. 270(1) (

a) of the Criminal Code is charged are concerned with the issue of whether the complainant was in the execution of his or her duty and, for that reason, include an analysis of the general duty of peace officers to prevent and investigate crime and to bring offenders to justice.

That often involves an ex poste facto search for specific authority, whether in federal or provincial legislation or at common law, to support a characterization of the actions of the peace officer at the time of the assault as being performed "in the execution of his duty ". [Emphasis added.] [ 46 ] The court concluded that because there was no evidence the officer entered the trailer to arrest Mr. Plamondon and there were no exigent circumstances, there was no authority for the officer to enter the trailer.

She was not in the execution of her duty in entering the trailer and as a result, in law, the charge left was assault simpliciter. In this case, Mr. Sagmoen seeks to show that Cpl.

Kovacs exceeded her powers by being on the property without the proper authority. [ 47 ] In addition, the Supreme Court of Canada said some 29 years ago: [18] In Kokesch , supra , this Court determined that evidence obtained during a search under warrant had to be excluded under s. 24(2) of the Charter where the warrant was procured through an information which contained facts solely within the knowledge of police as a result of a Charter violation .

However, in circumstances such as the case at bar where the information contains other facts in addition to those obtained in contravention of the Charter , it is necessary for reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra . In this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event.

Accordingly, the warrant and search conducted thereunder in the case at bar will be considered constitutionally sound if the warrant would have issued had the observations gleaned through the unconstitutional perimeter searches been excised from the information . It has been admitted that the police had reasonable grounds for the issuance of a warrant before undertaking either of the perimeter searches.

This admission on the part of the respondent is eminently proper given the following independent reasonable grounds identified in the information sworn to obtain the warrant. [Emphasis added.] [ 48 ] That supports Mr.

Sagmoen’s argument and what he seeks to have excised from paragraph 33 of the ITO referred to above, as well as other aspects of the ITO he seeks to exclude from consideration. [ 49 ] From the above referenced cases I conclude that a challenge to the issuance of a warrant is not necessarily a challenge to what the officer is doing; rather, it can be a challenge alleging the judicial officer who issued the warrant violated the accused’s rights. That appears to be permissible in law.

Conclusion [ 50 ] At this point, it is not for me to decide whether in fact a collateral attack on the search warrant through the Charter is permissible in this case. I cannot say the issue is settled. There are the cases to which I have referred indicating that a Charter challenge is not a collateral attack.

On the other hand, the collateral attack rule is very alive and was applied recently by the Supreme Court of Canada, [19] where at paragraph 24 they pointed out the competing interests at play: [24] In sum, two principles underlie the approach to collateral attacks on court orders: (1) the importance of maintaining the rule of law and preserving the repute of the administration of justice; and (2) ensuring that individuals have an effective means to challenge court orders, particularly when these orders are challenged on the basis that they are not Charter compliant. . . . [ 51 ] I can only determine the collateral-attack issue, whether based on fraud or otherwise, after full argument.

The Challenge to the Search Warrant is Material to Issues at Trial [ 52 ] In this case, an essential element of the offence the Crown must prove beyond a reasonable doubt was that Cpl. Kovacs was in the lawful execution of her duty. They propose to do so by showing that she possessed a valid search warrant that entitled her to be on the property to execute that search warrant.

If there is a reasonable doubt that the officer was in the execution of her duty, the Crown has not met its burden. [ 53 ] If the answer to the ex post facto analysis sought by the defence is that the search warrant could not have properly issued, then it is arguable that Cpl. Kovacs was not in the execution of her duty when she was allegedly assaulted. That in turn may create a reasonable doubt on an essential element of the offence, which links the challenge to the issues at trial. [ 54 ] With respect to the Crowns argument that no Charter remedy is sought by Mr.

Sagmoen, that may be so at this stage, but that does not prevent the defence seeking a remedy later, for example, at the sentence stage, should that occur, [20] or mid-trial, should counsel consider it appropriate to change strategy. The defence is not required to maintain the same defence position throughout trial.

Further, if his Charter rights were violated, Mr. Sagmoen may be entitled to a remedy, but he does not have to seek one. Finally,“remedy” has been construed broadly: it can simply be a declaration that a person’s Charter rights were violated.[21] [55] With respect to the Crown argument that because nothing was seized there is nothing to exclude under s. 24(2) of the Charter,that

section refers to evidence being excluded where it was “obtained in a manner” that violated the accused’s rights. The evidence doesnot have to be seized. If the challenge to the issuance of the search warrant is successful, it is arguable that the search warrant itself was“obtained in a manner” that violated Mr. Sagmoen’s Charter rights, and the search warrant is evidence upon which the Crown seeks torely to prove its case. Furthermore, evidence does not have to be physical evidence.[22] I do not accede to the Crown’s argument on thispoint.

Conclusion [56] In essence, the defence approach is about raising a reasonable doubt on an essential element of the offence. That is somethingthey are entitled to do in making full answer and defence. There is of course no onus on the defence to prove anything, but attacking thevalidity of the search warrant is a way to achieve an end: providing an evidentiary record that would support a finding that there is areasonable doubt on an essential element of the offence charged. It is material to the issues at trial. Mr. Sagmoen has met the Test for a Voir Dire [57] At this stage, Mr.

Sagmoen does not have to meet the test for being granted leave to cross-examine an affiant or sub-affiant,[23]but I must consider that test in considering whether he has shown a reasonable basis on which the search warrant can be challenged andthe court could find a breach of s. 8 of the Charter. Leave should be granted if I am satisfied that cross-examination will likely elicittestimony that tends to discredit one of the preconditions for the search warrant and that it will enable Mr. Sagmoen to make full answerand defence. I have already determined the latter point in his favour. [58] Counsel for Mr.

Sagmoen provided examples of information not set out in the ITO, which information may have been unlawfullyobtained. If so, it is reasonable to posit that it would be excluded from the ITO. Cross-examination is likely the only route to provide thatevidence. Assuming as I must that it is shown that Cpl.

Kovacs knowingly withheld material information that could invalidate theissuance of the search warrant, I would be obliged to excise those parts of the ITO that were materially affected and determine, based onwhat was left, whether the search warrant could have issued. [59] If it could not, then there is a viable argument that the Crown has not proven beyond a reasonable doubt that Cpl. Kovacs was inthe execution of her duty when on the property.

That is sufficient to meet the test, even if there are other bases upon which she mightlawfully have been there, because I must analyze the police actions based on what they did, not what they could have done.[24] Conclusion [60] Mr. Sagmoen has established that he is entitled to a voir dire with respect to the sub-facial validity of the search warrant. _____________________________ The Honourable Judge J. Guild Provincial Court of British Columbia [1] The Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [2] So named after the decision in R. v. Vukelich, (1996) (BC CA), 108 CCC (3d) 193 [3] 2021 BCCA 42 at para.’s 44-47 [4] R. v. Frederickson, 2018 BCCA 2 [5] R. v. Frederickson, at para.’s 32-33 [6] R. v. Johnston, 2021 BCCA 34, at para. 403 [7] R. v. Johnston at para. 404 [8] (SCC), [1989] 2 SCR 1140 [9] R. v. Bennett, 2017 ONCA 780, at para.’s 51-53

[10] R. v. Reilly, 2020 BCCA 369 [11] See for example R. v. Bennett, supra [12] [1997] B.C.J. No. 2739 [13] 1999 BCCA 247 [14] Wilson v. The Queen, (SCC), [1983] 2 SCR 594, at pp. 599-600 [15] R. v. Bird, 2019 SCC 7 [16] (1997) (BC CA), 121 CCC (3d) 314 (BCCA) [17] Cited with approval in R. v. Alex, 2017 SCC 37, at para. 48 [18] R. v. Grant, (SCC), [1993] 3 SCR 223 [19] R. v. Bird, supra [20] R. v. Nasogaluak, 2010 SCC 6 [21] Canada (Prime Minister) v. Khadr, 2010 SCC 3 [22] Section10 Charter violations are the usual basis for excluding statements, but not the only source. Self-identification was excludedin R. v.

Langthorne, 2012 BCSC 2023, where police were not acting in the lawful execution of their duty and violated the accused’s s. 9Charter right. [23] Set out in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, at 1452 [24] R. v. Whitaker, 2008 BCCA 174 (leave to appeal refused, [2008] S.C.C.A. No. 296)