R. v. Nguyen et al Date:, 2014 BCPC 28

Citation: R. v. Nguyen et al Date: 20140127 2014 BCPC 0028 File No: 57690 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THANH TAM NGUYEN, THANG THANH NGUYEN and PHI THI LIEU RULING ON VOIR DIRE OF THE HONOURABLE JUDGE W. YOUNG Counsel for the Crown: C. Khangura Counsel for the Accused: K. Beatch Place of Hearing: Chilliwack , B.C. Date of Hearing: January 15 th , 16 th , 17 th , and December 5 th , 2013 Date of Judgment: January 27 th , 2014 OVERVIEW

OVERVIEW [ 1 ] THE COURT: The three accused are charged as follows: Count 1 : Nguyen, Thanh Tam (aka: Nguyen, Tam Thanh), Nguyen, Thang Thanh (aka: Nguyen, Tony T., aka: Nguyen, David), Lieu, Phi Thi, on or about the 31 st day of March, 2011, at or near the City of Chilliwack, in the Province of British Columba, did unlawfully produce a controlled substance, to wit: Cannabis (marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act .

Count 2 : Nguyen, Thanh Tam (aka: Nguyen, Tam Thanh), Nguyen, Thang Thanh (aka: Nguyen, Tony T., aka: Nguyen, David), Lieu, Phi Thi, on or about the 31 st day of March, 2011, at or near the City of Chilliwack, in the Province of British Columba, did unlawfully possess a controlled substance, to wit: Cannabis (marihuana), for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The accused apply to have the evidence discovered as a result of the search warrant excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms [ Charter ] on three grounds: 1.

Mr. Thanh Tam Nguyen (hereinafter referred to as Mr. Nguyen) and Ms. Lieu argue that the Information to Obtain a Search Warrant (ITO) does not provide sufficient grounds to authorize the issuance of the warrant, and that the search of the residence was an unreasonable one in breach of their s. 8 Charter rights. 2. Mr. Nguyen and Ms. Lieu further allege that the police did not have the necessary grounds to arrest them contrary to s. 9 of the Charter ; 3. Thirdly, they allege that the police breached their s. 10(

b) Charter rights by failing to inform them of their right to retain and instruct counsel, or at least that the evidence fails to disclose that they had been informed of that right, and by failing to inform them of their s. 10(

b) Charter rights in their native language, so that they understood adequately their s. 10(

b) Charter rights. [ 3 ] The police obtained a telewarrant pursuant to s. 487.1 of the Criminal Code in order to search a residence in Chilliwack. A marihuana grow operation was subsequently found in the basement. Two of the three accused, Mr. Nguyen and Ms. Lieu, were present during the search. However, both accused argue that the telewarrant provisions of the Criminal Code were not followed, in that the affiant, Cst. Farmer, failed to determine the availability of a justice or judge at the local Chilliwack Courthouse before requesting the telewarrant. [ 4 ] Cst.

Farmer assumed that the Chilliwack Courthouse was not open when she faxed the application for a warrant at 8:25 am to the Judicial Justice Centre in Burnaby. The defence argues that if the affiant had attended the Chilliwack Courthouse, she may well have found a judge available in the Courthouse at that hour of the morning. She simply made no inquiries. [ 5 ] The defence further argues that the arresting officer knew nothing of the accused, Mr. Nguyen, before he arrested him, and before he detected the odor of marihuana in the residence. Cst. Rae arrested Ms. Lieu. She arrested Ms.

Lieu because she smelled an odor of marihuana in the house, but she had no prior knowledge of Ms. Lieu. She did not have any knowledge of her connection with the property. Nor did she know her name. She arrested Ms. Lieu based on her presence on the property at the time the police arrived. The defence argues that the police had not discovered any evidence to implicate either accused with respect to the offence under investigation. Furthermore, the police did not invoke the common law power of investigative detention. [ 6 ] Lastly, the defence argues that both accused, Mr. Nguyen and Ms.

Lieu, may or may not have had their s. 10(

b) Charter rights read to them, and thus the Crown has not proven that the informational component has been provided. There is no evidence of what words the police used to convey to the accused their s. 10(

b) Charter rights. [ 7 ] Furthermore, the defence argues that the two accused found inside the house had difficulty with the English language, and thus there is no evidence either accused clearly understood what was said to them regarding their s. 10(

b) Charter rights. [ 8 ] The defence invites the court to exclude the evidence of the marihuana grow operation, and any statements made to the police, pursuant to s. 24(2) of the Charter , after considering the three factors set out in R. v. Grant , 2009 SCC 32 . FACTS [ 9 ] Cst. Farmer was involved in an investigation into a possible marihuana grow operation located at 9835 Hazel Street in Chilliwack. She was the affiant of the ITO. She obtained the warrant to search by telecommunication.

The warrant gave the authorization to enter the residence at 9835 Hazel Street, in Chilliwack, on March 31 st , 2011, between the hours of 9:30 am and 6:00 pm. [ 10 ] According to the ITO, the persons under investigation were Thanh Tam Nguyen, and Phi Thi Lieu. The ITO sets out that on November 21 st , 2010, the Chilliwack RCMP received a report of a marihuana grow operation at this address. The police attended the area and smelled an odor of growing marihuana emanating from the residence on four occasions.

Also, the hydro records indicated that the hydro being used at the residence was high for an average home of that size. [ 11 ] In para. 10 of the ITO, Cst. Farmer stated the following: “Presently, there are no judicial justices of the peace or Provincial Court judges presiding in the City of Chilliwack [or elsewhere] as the Chilliwack Law Courts are presently closed.” She goes on to request that the ITO be heard by Telecommunication that Produces a Writing. [ 12 ] Cst.

Farmer advises that the police received information from an informant about this particular residence, in which an elderly couple resided, who had a son named Tony. He visits often and drives a white Acura. The residence had been the subject of a grow operation “bust” about 4 years prior, and the same family was living there. The informant advised that the smell of growing marihuana was strong on March 8 th , 2011.

[ 13 ] Cst. Farmer received information from the City of Chilliwack to the effect that Phi Thi Lieu was the registered owner of the residence, and had been so since October 25 th , 2001. The hydro subscriber’s surname is Nguyen, and the first name was not provided by BC Hydro. The residence’s energy consumption was considered three times as high as that of an average household. [ 14 ] On December 30 th , 2010, at 21:00 hours, Cst. Farmer, Cst. Nicholson and Cst.

Lane conducted surveillance of the residence from surrounding streets, and observed that there was a white Acura in front of the residence and the window blinds were closed. Cst. Farmer read a report written by Cst. Fisher, that on February 24 th , 2011 he and Cst. Murdy observed the same white Acura on the street in front of the residence. On March 23 rd , 2011, Cst. Farmer walked by the residence and observed the white Acura parked on the street in front of the residence. [ 15 ] On December 30 th , 2010, at 21:00 hours, Cst. Farmer and Cst.

Nicholson conducted surveillance of the residence from surrounding streets and neighboring properties, and noted a faint smell of growing marihuana at the southeast corner of the property. The smell lingered for approximately 30 seconds before dissipating. Cst. Farmer could not determine the exact residence from which the smell was emanating. [ 16 ] Cst. Farmer read a report written by Cst. Fisher that on February 24 th , 2011, Cst. Fisher and Cst. Murdy obtained a moderate to strong odor of growing marihuana emanating from the residence.

They smelled the strong odor of growing marihuana for approximately 30 seconds. Cst. Fisher and Cst. Murdy then walked to the southwest side of the residence and smelled a moderate odor of growing marihuana for approximately 30 seconds. They then attended the east and north side of the residence, and did not detect an odor of growing marihuana. Cst. Fisher believed the odor of growing marihuana was coming from the residence. [ 17 ] On March 23 rd , 2011, at 19:50 hours, Cst. Fisher and Cst.

Farmer attended the area of the residence and observed that while standing on the south side of the residence for approximately one minute, they could smell growing marihuana. Then on March 31 st , 2011, at 07:14 hours, Cst. Fisher and Cst. Farmer attended the area of the residence, and observed on the northeast side of the residence, the smell of growing marihuana at 07:14 hours and 07:15 hours, each for 10 seconds. The smells were short in length but strong in odor. They then attended the south and north side of the residence and did not obtain an odor of marihuana.

Based on the strength and direction of the wind being northeast, Cst. Farmer believed the smell was emanating from the residence. [ 18 ] On March 29 th , 2011, Cst. Farmer and Cpl. Bosnell attended the area of the residence and seized garbage which was on the street in front of the residence. They found a home depot financial account

summary in the name of Phi Lieu associated to an address in Surrey, dated February 16 th , 2011; and a CITI credit card

summary in the name of Phi Lieu associated to an address in Surrey, dated February 16 th , 2011. [ 19 ] Cst. Farmer also queried the BC license plate 633 GSM (the white Acura) and found that the vehicle’s registered owner was Thang Thanh Nguyen. The address listed on the vehicle registration was 9835 Hazel Street, Chilliwack. Also, Thang Thanh Nguyen had a valid BC driver’s license and the address on the license was listed as 9835 Hazel Street, Chilliwack. [ 20 ] Cst. Farmer queried Phi Thi Lieu on Prime and CPIC but there was no birth date for her, and no entries located.

There had been a prior marihuana grow operation in the same residence in 2004. At that time Thang Thanh Nguyen (1985 birthdate) was arrested leaving the residence, and both Thanh Tam Nguyen and Tony Nguyen (1981 birth date) were arrested inside the residence. Both Tony Nguyen and Thang Thanh Nguyen were charged with production but the charges were dismissed at trial. I am mindful the reference to the prior charges and acquittals should not have been included in the ITO. [ 21 ] Cst.

Farmer concluded her ITO by affirming that she had reasonable grounds to believe that the residence was housing a marihuana grow operation due to the odor of growing marihuana smelled by the police coming from the residence, the information provided by Informant A, and the high hydro consumption at the residence. [ 22 ] After the search warrant was executed, Cst. Farmer found a grow operation located in the basement. There was no door separating the basement from the upper floor area. She found an electrical room, a drying room, a nutrient room and a clone room in which there were 364 clones.

There was another drying room and clone room that had no marihuana plants in it. There was a grow room that had 137 plants. The police also seized a nutrient chart, in addition to 1000 watt HPS high pressure sodium lights in the drying room. There was other equipment located consistent with a marihuana grow operation. [ 23 ] The Crown did not lead any expert evidence as to the value of the marihuana grow operation, which evidence might have informed the seriousness of the offence in a s. 24(2) Charter analysis. [ 24 ] Cst. Farmer seized a hydro bill in the name of Tony T.

Nguyen, a visa statement in the name if Phi Lieu, and a Fortis BC bill in the name of Tony T. Nguyen, from the kitchen counter on the main floor. She seized a prescription bottle with a label in the name of Tam T. Nguyen from the coffee table in the living room. The police also seized a photo album on the dresser in the master bedroom, with a photo of two persons who appeared to be Tam Nguyen and Phi Lieu. The police found a Hub International document written to Phi Lieu of 9835 Hazel Street, and an insurance document issued to Phi Thi Lieu of 9835 Hazel St.

They also found an ICBC document addressed to Nguyen, Thanh Tam at a Surrey address. The police seized an HSBC document addressed to Thang Nguyen found in the one bedroom, an Acura document addressed to Thang Nguyen of 9835 Hazel Street located in the same room, and a postcard dental reminder in the name of David Nguyen of 9835 Hazel Street. The police located a Rogers bill addressed to Thang T. Nguyen, as well as several other documents in the same name in the mailbox on the front porch. [ 25 ] The following admissions of fact were filed, with respect to the operation of the Chilliwack Courthouse.

Those admissions are as follows: firstly, the office of the Judicial Case Manager (JCM) in Chilliwack opens at 8:00 am. Occasionally an RCMP member will contact the Chilliwack JCM regarding the availability of a judge or justice to grant a warrant. It is not unusual for a judge to be at the Courthouse at 8:30 am or a few minutes later.

[ 26 ] There was a further admission that all the plants located were marihuana plants, which were possessed for the purpose of trafficking, and which were being produced for the purposes of s. 7(1) of the Controlled Drugs and Substances Act (hereinafter referred to as the CDSA ). [ 27 ] Paragraph 10 of the ITO states the following: Presently there are no judicial justices of the peace or Provincial Court judges presiding in the City of Chilliwack [or elsewhere] as the Chilliwack Law Courts are presently closed.

The Judicial Justice Center is located approximately 92 kilometers from Chilliwack with and in minimal traffic is a 1 hour and 10 minute driving time one way. With the overall distance, driving time and time to review the application it is felt that it is not practical for this application to be heard in person. As such, it is requested that this Information to Obtain a Search Warrant be heard by Telecommunication that Produces a Writing. [ 28 ] Cst. Farmer agreed that she wanted to execute the warrant early in the morning in the hope that someone would be at home.

She also was not aware if the police had been seen by the occupants earlier that morning outside the residence, such as might require urgent action on the part of the police in obtaining the warrant. [ 29 ] Cst. Farmer agreed she had not made a phone call to see if a justice or judge was present early that morning in the Chilliwack Courthouse. Her belief was that the Chilliwack Courthouse did not open until 9:30 am. Cst. Farmer did not believe any judicial officer was at work until 9:30 am. The 31 st of March, 2011 was a Thursday, and the Chilliwack Courthouse was open that day. Cst.

Farmer made the decision to send the material to the Judicial Justice Centre in Burnaby for a telewarrant, because she was concerned about the possibility of evidence being destroyed. There was also added pressure due to police surveillance being in place at the residence. She testified on page 59, line 7: “Our resources were in place. I didn’t see any need to – to wait.” She further testified on page 59, line 35: “As soon as I returned to the office I finished the ITO and faxed it as soon as possible.” Her notes indicate that she faxed the ITO at 08:25 hours.

The reference to 7:43 am at the top of the faxed copy of the ITO was in error for time faxed. [ 30 ] The warrant was issued at 9:05 am by JJ Lim, at the Judicial Justice Center in Burnaby. Cst. Farmer got the search warrant back at 09:13 hours. A police briefing occurred at 10:05 am, and the team arrived at the residence on Hazel Street at 10:48 am. [ 31 ] Cst. Farmer agreed that the information she had received was that the two suspects at the residence were Vietnamese. She expected the occupants to be Vietnamese. She was aware that the RCMP possessed arrest scripts in the Vietnamese language.

She did not bring the arrest script with her to the residence. Cpl. Bosnell, who conducted the briefing prior to the execution of the search warrant, knew the suspects were likely to be Vietnamese. [ 32 ] Cpl. Bosnell was one of the police officers assigned to clear the residence. He was part of the entry team which was to clear the residence of any occupants, and then to secure the residence for the police to conduct the search. He was one of the officers at the doorway when Cst. Nicholson knocked on the door. His other role was to assist with the search of the residence.

He also led the pre- attendance briefing at the detachment. [ 33 ] Cpl. Bosnell arrived at the residence at 10:48 am. He went to the door with his brother officer, Cst. Nicholson. An older male, Mr. Nguyen, answered the door. The male was wearing pyjamas. Cpl. Bosnell took hold of Mr. Nguyen’s arm. Cpl. Bosnell identified himself as a police officer, and stated that they had a search warrant and the accused was under arrest. Mr. Nguyen was then escorted outside to Cst. Fisher, who was the one conducting the arrests of the occupants. Cpl. Bosnell’s role was not to deal with the occupants.

His part was to secure the residence. Cpl. Bosnell handed a copy of the search warrant to Cst. Fisher, so that he could explain it further to the accused. Cst. Fisher then handed the search warrant to Mr. Nguyen, who appeared to look at it briefly. [ 34 ] Cpl. Bosnell entered the residence and located a woman within the entrance almost immediately thereafter. The woman was Phi Thi Lieu. She was escorted outside. Cpl. Bosnell provided her with a copy of the warrant as she was being escorted. Cpl. Bosnell went through the upper floor of the house, and then moved downstairs to clear the basement. Cpl.

Bosnell went to the basement, and observed the grow operation. The upstairs appeared to be lived in, with more than one occupied bedroom. There was a vehicle, a Trailblazer, in the garage. It was registered to Thanh Tam Nguyen at a Surrey address. [ 35 ] Cpl. Bosnell was of the view that the male who answered the door was one of the subjects known to reside there. The male came from within the residence and opened the door. Cpl. Bosnell believed that the male would be arrestable for production of marihuana. He knew Cst. Fisher would advise the male of his Charter rights and police warning. [ 36 ] Cpl.

Bosnell also located a house key from a small table in the younger person’s bedroom, and tried it in the front door lock. It worked in the front door lock. [ 37 ] Cpl. Bosnell agreed that the documents seized from the garbage in the name of Phi Thi Lieu indicated a Surrey address. Cpl. Bosnell agreed that he had been given the name of the possible suspects before the search warrant was executed. One person was Phi Thi Lieu, who was an older Vietnamese female born in 1952, the other was Thanh Nguyen. Ms. Lieu was believed to be the registered owner of the residence at 9835 Hazel Street. There was no indication Ms.

Lieu was involved in the prior 2004 investigation. [ 38 ] Cpl. Bosnell believed the two older persons lived at the residence, but he had never seen them there. Nor did he recall what they looked like from prior photos. Those two individuals had not been seen at the residence in any prior surveillance. It was believed that they had been associated with the residence about 6 years before. Thus Cpl. Bosnell had no independent knowledge of who the suspects were. The only information he had about the occupants was from an untested informant.

He also understood that there were two young adult males connected with the residence, being one born in 1981 and the other born in 1985. [ 39 ] Cpl. Bosnell did not read Mr. Nguyen his s. 10 Charter rights. He assumed that would be done by Cst. Fisher. He did not see any officer read the s. 10(

b) Charter rights to the woman who was found inside the residence. Cpl. Bosnell handed a copy of the search warrant to the woman, but she made a comment to him about not having her glasses, so he was not sure if she was ever able to read the

warrant. Cpl. Bosnell did not have any other conversation with her. [ 40 ] Cpl. Bosnell did have access to the s. 10(

b) Charter rights and arrest script in the Vietnamese language. He did not use such a script, nor was he aware if a Vietnamese translator assisted the accused at the residence or later at the detachment. [ 41 ] Cpl. Bosnell did not notice any smell of marihuana earlier on that day at the residence. He did not hear the sound of fans, and made no observations that were consistent with the presence of a grow operation. Inside the residence Cpl.

Bosnell observed that one of the bedrooms contained male and female clothing, which was different in appearance from what was found in the other bedroom, where he found clothing that appeared to be for a younger person. [ 42 ] Cst. Fisher attended the residence. He was the arrest officer. He arrested both Mr. Nguyen and Ms. Lieu. He also had done some surveillance prior to the warrant being executed. He had seen a white car in the past parked outside the residence. The house did not appear to be occupied. He had made smell observations on two specific occasions. One occasion was February 24 th , 2011.

On that day he observed a car parked outside the residence with BC license plate 663 GSM. He walked the property, and was able to obtain a smell of fresh growing marihuana coming from 9835 Hazel Street. The next time he attended was March 23 rd , 2011. On that occasion there was a slight odor of marihuana detected to the south side of the residence. [ 43 ] Cst. Fisher was part of the “stack” of officers who attended the residence on March 31 st , 2011. He observed the accused, Mr. Nguyen, answer the door. Cpl. Bosnell approached Mr.

Nguyen first and told him he was under arrest for production of a controlled substance. Mr. Nguyen was barefoot. The police assisted in finding shoes for the accused. Cst. Fisher took custody of Mr. Nguyen and walked him to the waiting police car. Once the accused was passed to Cst. Fisher, he placed him in handcuffs. Cst. Fisher took custody of Mr. Nguyen between 10:48 am and 10:53 am. Mr. Nguyen appeared to understand what Cst. Fisher said to him. The accused did not ask for an interpreter. [ 44 ] Cst. Fisher was able to detect an odor of fresh growing marihuana when the door opened.

The team clearing the house notified him via radio that a grow operation had been located inside the residence, and at that point Cst. Fisher read Mr. Nguyen his Charter rights. The accused did not ask for the assistance of an interpreter. The accused provided his name and birth date. Cst. Fisher searched the accused. [ 45 ] Cst. Fisher read Mr. Nguyen his Charter rights at 10:53 am, but he was never asked by Crown Counsel to testify as to the content of the Charter rights which he read to Mr. Nguyen. Cst. Fisher read the Charter rights to Mr. Nguyen inside the police car.

He also told him he was under arrest for production of a controlled substance. After he read the s. 10(

b) Charter rights to the accused, Cst. Fisher asked him if he understood, and the accused’s answer was “yes”. Cst. Fisher asked the accused if he wanted to call a lawyer, and his answer was “yes”. Cst. Fisher then read the police caution to Mr. Nguyen and asked him if he understood, and he said “No, I don’t understand --- understand English well.” [ 46 ] The accused was then driven to the detachment, where he was brought into the booking area and thereafter to cells. Mr.

Nguyen arrived at the detachment at 11:22 am, and a call was placed to Legal Aid at 11:49 am, for a Vietnamese Legal Aid person to contact the accused. Mr. Nguyen also requested to speak with Mr. Neil Cobb, who called back first and spoke with both accused. Then the Vietnamese Legal Aid call came in and Mr. Nguyen was placed in the phone room. That call lasted between 12:18 pm and 12:25 pm. Ms. Lieu then spoke with the Vietnamese translator at 12:27 pm. [ 47 ] Cst. Fisher took a statement from Mr. Nguyen. There was no Vietnamese interpreter in attendance for the taking of that statement, as Cst.

Fisher did not feel that the accused needed an interpreter. He was able to converse well in English. The accused understood Cst. Fisher’s questions. Cst. Fisher also did not provide an interpreter for Ms. Lieu. Cst. Fisher felt that Ms. Lieu had a good grasp of the English language. [ 48 ] Cst. Fisher took a 20 minute oral statement from Mr. Nguyen. Cst. Fisher did not believe the accused had any difficulty understanding his questions. The accused did respond appropriately to the questions.

The accused would not respond to the questions about the grow operation, but rather referred the officer to his lawyer. [ 49 ] However, some of the answers given by the accused are equivocal, and it appears from a careful review of the statement that the accused may not have understood what was asked of him. For example, the following exchange occurred between Cst. Fisher and Mr. Nguyen: SF: Okay. Alright you understand why you’re here today. For production of, of a Controlled Substance. For, for growing marihuana, you understand that? TN: Well not so yet. SF: Pardon me? TN: Not so yet.

SF: You don’t understand or you do understand. TN: I us…er…not… SF: That’s why you’re here. I just want to make sure you understand why you’re here. TN: Yeah that’s all I’m again I know, I know why I’m here and it. Then at page 3:

SF: Alright. Um. You grow those plants downstairs. How come? TN: Uh, you can talk to my lawyer, I’d donna understand that. (correction during playing of the tape) SF: Okay. TN: Yeah,-------- SF: You don’t understand what I’m asking? TN: Yeah you, you can talk to my lawyer. I have no idea. [ 50 ] Cst. Fisher also spoke with Ms. Lieu, who told him her name and date of birth. She did not have any identification with her. Cst. Fisher provided the Charter rights translated into Vietnamese to both accused in the booking room. Cst. Fisher was confident that Ms.

Lieu understood what he was saying, but there was still somewhat of a language issue. [ 51 ] Cst. Fisher entered a document which he referred to as the Vietnamese Charter . An English translation of the document entitled Vietnamese was never entered, so it is unclear what the Vietnamese Charter states. Also, both accused advised Cst. Fisher they could not read the Vietnamese Charter without their reading glasses. [ 52 ] Cst. Fisher did obtain an address from Ms. Lieu of 167 th Street in Surrey. She advised she was not living at the Hazel Street address.

She advised in her statement that she was living in Surrey with a male named Hai Nguyen. Cst. Fisher did experience a language barrier with Ms. Lieu. The accused was clearly not fluent in the English language. She said several times during her interview that she did not understand. And Mr. Nguyen advised Cst. Fisher that he did not understand the secondary warning. [ 53 ] Also troubling is that the police arrested both accused in their pyjamas, and did not allow them to change before taking them to the detachment. [ 54 ] Cst. Fisher acknowledged that he had never dealt with Mr.

Nguyen prior to March 31 st , 2011, nor did he recall dealing with Ms. Lieu. Mr. Nguyen gave the name Tam Nguyen to Cst. Fisher. [ 55 ] Cst. Rae was requested to assist in the arrest of any persons located inside the residence. She attended the briefing beforehand. She was present when the search warrant was executed. Cst. Rae was at the back of the “stack” of officers going into the residence. [ 56 ] Cst. Rae observed Cst. Nicholson knock on the door, and advise they were executing a search warrant. The door then opened and the members walked inside. When she got to the entrance, Cst.

Rae smelled a strong odor of marihuana. She then saw the other officers pass the accused, Ms. Lieu, through the line. Cst. Rae escorted her out of the residence and advised her that she was under arrest for production of marihuana. She escorted Ms. Lieu to her police vehicle. Cst. Rae then provided Ms. Lieu with her Charter rights from memory. The accused had a confused looked, and continued to say she did not understand. Cst. Rae placed Ms. Lieu in a police vehicle and transported her to the detachment. [ 57 ] Cst. Rae could not recall if she provided Ms. Lieu with a copy of the search warrant. Cst.

Rae also did not confirm the identity of the woman she arrested, as the woman had not provided picture identification. The accused did provide the name of Phi Lieu. Cst. Rae had difficulty understanding the accused correctly. Cst. Rae arrested the accused at 10:50 am. They returned to the detachment at 11:11 am. [ 58 ] Cst. Rae did not recall if another officer had shown Ms. Lieu a copy of the search warrant. [ 59 ] Cst. Fisher logged Ms. Lieu into custody in the booking area. Cst. Rae just assisted with searching Ms. Lieu. [ 60 ] In cross examination, Cst. Rae testified that she arrested Ms.

Lieu after she had smelled a strong odor of marihuana inside the residence. The accused was returned to the detachment in her pyjamas. Cst. Rae agreed that she did not know how the accused was connected to the residence other than by her mere presence. [ 61 ] Cst. Nicholson attended 9835 Hazel Street to assist with the execution of the search warrant. He set up surveillance on the property ahead of time. He then assisted with the entry. He knocked on the front door and shouted: “Police, search warrant”, numerous times. He heard a male voice inside. Mr. Nguyen presented himself at the front door. Cst.

Nicholson directed him to come out of the residence, and towards the officers behind him in the “stack”. The accused did not say anything to Cst. Nicholson. The officer did not restrain Mr. Nguyen. [ 62 ] When he entered the residence, Cst. Nicholson saw the female accused exiting from a bedroom. Cst. Nicholson also said: “Police, search warrant” to her. He directed the woman past himself to the officers at the front door. He did not have any conversation with her. [ 63 ] Cst. Nicholson assisted in disassembling the grow operation in the basement. POSITIONS OF THE PARTIES [ 64 ] Defence counsel submits that Cst.

Farmer did not comply with s. 487.1 of the Criminal Code . Cst. Farmer did not make any inquiry of the JCM, who commenced work at 8:00 am, if a justice or judge was available at the time the Chilliwack Courthouse opened to the public at 8:30 am. The officer automatically assumed the Chilliwack Courthouse did not open until 9:30 am, and so did not make any effort to appear before a justice or judge. She simply requested a search warrant from the Judicial Justice Centre in Burnaby. She faxed the ITO and copy of the search warrant to the Centre at 8:25 am, and received the signed warrant at 9:13 am.

[65] The defence thus invites me to quash the search warrant on the grounds that it did not comply with the requirements forobtaining a telewarrant, and thus was not properly issued. By way of admissions, the defence established that the JCM office opens at8:00 am; and that it is not unusual for a judge to be at the Courthouse at 8:30 am, or shortly thereafter. [66] Counsel submits that Cst. Farmer made no inquiry as to the presence of a judicial officer to grant the search warrant in person atthe Courthouse. Counsel relies on R. v. Ling, [2009] B.C.J. No. 267. Defence argues that Cst.

Farmer’s failure to make any effort toconfirm the availability of a judge puts the circumstances here on all fours with Ling. [67] The defence also relies on R. v. Nguyen, 2007 BCSC 335, R. v. Ho, 2011 CarswellBC 2112, R. v. Huynh, 2010 CarswellBC2945, and one of my decisions from 2006, R. v. Nguyen, [2006] B.C.J. No. 1992. A recent decision of Mr. Justice Joyce in R. v. Nguyen,2012 BCSC 1758 is helpful authority, as well as his further analysis with respect to the exclusion of evidence.

That later decision, R. v.Nguyen, is found at 2013 BCSC 611. [68] The defence further argues that if the court does not quash the search warrant, it is open to the court to find the arrest of the twoaccused was invalid. Cpl. Boswell arrested Mr. Nguyen before he detected an odor of marihuana inside the residence. Mr. Nguyen wasarrested simply because he was found inside the residence of a suspected marihuana grow operation. There was no other evidenceconnecting the accused to that residence prior to his arrest. [69] Likewise, the defence argues that Ms. Lieu was wrongly arrested by Cst.

Rae, who smelled the odor of marihuana when thedoor was opened and prior to the arrest. However, Cst. Rae had no knowledge of Ms. Lieu’s connection to the property. Again, Ms. Lieuhad not been seen in or around the property by any of the officers. Ms. Lieu was arrested based on ‘mere presence’ at the residence. [70] The defence relies on R. v. Whitaker, 2008 BCCA 174 to argue that the arresting officers did not know how the two accusedwere connected to the property or who they were, and so did not have objective grounds to arrest either Mr. Nguyen or Ms. Lieu.

Thepolice are not entitled to arrest first, and then determine the connection between the accused and the offence under investigation. Counselfurther relies on R. v. Orr, 2010 CarswellBC 3508, to argue that when the arrests took place, the police had not conducted aninvestigation as to the use of the residence generally, despite the odor of marihuana or the connection of the accused to that residence. [71] Lastly, the defence argues that there is no evidence with respect to the informational component of s. 10(

b) of the Charter, withrespect to either accused. The Crown never lead any evidence as to what, if anything, was said to the accused regarding their entitlementto retain and instruct a lawyer without delay. There was no evidence as to the availability of Legal Aid, and whatever duty counselservice was then available. The accused needed to be advised of their right to have access to free, immediate legal advice through theapplicable duty counsel service.

The accused were also entitled to be advised of the means of access to duty counsel services. [72] Counsel argues that given the difficulty that both accused clearly had with the English language, it is also difficult to know ifthey ever understood what was said to them regarding their s. 10(

b) Charter rights. There is no English translation of the allegedVietnamese Charter information which was filed as an exhibit, and seemingly shown to the two accused. [73] Lastly, the defence submits that Mr. Nguyen did not understand his jeopardy when he was interviewed by Cst. Fisher. A carefulexamination of the exchange during the interview might well lead to the conclusion that the accused did not understand he was underarrest for production of a controlled substance, and that he was being interviewed to gain evidence against him. [74] Cst. Rae provided Ms. Lieu with her s. 10(

b) Charter rights from memory. Cst. Rae never testified as to what words she actuallyused. Furthermore, Ms. Lieu looked confused, and spoke poor English. Ms. Lieu stated she did not understand her s. 10(

b) Charter rights.When Ms. Lieu was given the alleged Charter script in Vietnamese, she did not read it because she did not have her reading glasses. [75] In conclusion, defence counsel invites the court to find a breach of s. 8, s. 9 and s. 10(

b) of the Charter. [76] Defence invites the court to examine the three factors set out in R. v. Grant [supra] and to exclude the evidence of themarihuana grow operation, as well as the statement of Mr. Nguyen, pursuant to s. 24(2) of the Charter. [77] Counsel submits that the failure of the police to comply with the mandatory conditions of s. 487.1 of the Criminal Code is aserious breach, and not technical in nature. The decision of Cst. Farmer not to contact the Chilliwack Courthouse was a deliberate one,and was not made in good faith. As stated in Ho [supra], this type of breach is considered to be a serious one. Furthermore, defencesubmits, the failure to comply with s. 10(

b) of the Charter is equally serious. [78] Secondly, the defence argues, if the court finds the search to be warrantless, then such a warrantless search is a profoundintrusion on the accuseds’ right to privacy. The defence relies on Huynh [supra] to argue that the search and subsequent detention had aserious impact on the accuseds’ liberty and privacy interests. [79] Thirdly, the defence argues that while the reliability of the evidence and seriousness of the charges are important factors, theyare far from determinative with respect to the third Grant factor.

In essence, the defence invites the court to find that the repute of theadministration of justice would be adversely affected by admitting the evidence of the marihuana grow operation. The defence cites R. v.Reddy, 2010 BCCA 11, as well as R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494. [80] The Crown argues that the failure on the part of Cst. Farmer to telephone the Chilliwack Courthouse to inquire about theavailability of a judge is not fatal to the issuance of the search warrant.

There is no evidence that there was actually an opportunity forthe officer to appear before a judge at 8:25 am, being the time the ITO was faxed to the Judicial Justice Centre in Burnaby, or shortlyafter. Accordingly, Cst. Farmer was not being deliberately misleading. In her analysis, Crown counsel relies on the reasoning of Joyce J.in R. v. Nguyen [supra], where he sets out the factors for the court to consider in determining whether a telewarrant has been validlyissued. [81] The Crown relies on R. v. Nguyen, 2009 BCCA 89.

In Nguyen, at para. 18, Kirkpatrick J.A. held that the onus was on theapplicant to demonstrate that the standard of impracticability was not met. In Nguyen, the appellants had not tendered any evidence to

demonstrate that a justice of the peace was available to receive in-person applications. Also, the Court in Nguyen accepted theobservation in R. v. Phillips, 2004 BCSC 1797 that “impracticability is a relatively low threshold to meet, and that the legislation wasintended to incorporate technology to bridge gaps over distance and time (paras. 23-24).” [82] The Crown also relies on R. v. Johnson, 2005 BCPC 432, R. v. Smith, 2005 BCCA 334, and R. v. Farewell and Farewell, 2006BCSC 372. [83] In conclusion, the Crown submits that Cst.

Farmer complied with all the requirements set out in s. 487.1(4) of the CriminalCode. [84] The Crown further argues that the police had reasonable and probable grounds to arrest the two accused at the residence. TheCrown submits that Cpl. Bosnell had an objective basis to believe that the accused, Mr. Nguyen, had an apparent connection to theresidence and thus to the offence being investigated. The Crown relies on R. v. Le, 2009 BCCA 14. Crown counsel argues that that Mr.Nguyen’s arrest was accordingly lawful. [85] Likewise, the Crown argues that the arrest of Ms. Lieu was lawful. Cst.

Rae smelled a strong odor of marihuana from inside theresidence. The accused, Ms. Lieu, was likewise located inside the residence, wearing pyjamas. Cst. Rae escorted Ms. Lieu outside andadvised her she was under arrest. [86] Crown counsel relies on the additional authorities of R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, R. v. Tran(L.V.), 2007 BCCA 491 , 2007, 247 B.C.A.C. 109, R. v. Dinh, 2011 BCPC 222 , 2011 BCPC 0222, R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, R. v. Schulz, 2001 BCCA 601, R. v. Dubois, 2004 BCCA 589, R. v. Shokar, 2006 BCSC 770,and R. v.

Whitaker [supra]. [87] Lastly, with respect to the alleged s. 10(

b) Charter breach, the Crown seems to appreciate that she did not call any evidence asto what exactly the police said to either accused with respect to the information component of their right to counsel. Despite languagebeing an issue for both accused, the Crown submits that the police provided both accused with a s. 10(

b) Charter translation in theVietnamese language. Also, prior to speaking to Legal Aid, with the aid of a translator, both accused requested to speak with Mr. Cobb. [88] In essence the Crown invites the court to find that given the nature of the accuseds’ responses, there is evidence that they bothappreciated their rights regarding access to legal counsel. She invites the court to infer that both accused were fully informed of theirsection 10(

b) Charter rights. DISCUSSION [89] I will turn to the Charter sections raised by the defence, and the applicable law relating to those sections, especially s. 8 of theCharter. Sections 8 and 9 [90] Here the police officer, Cst. Farmer, made no inquiry as to whether or not a justice or a judge was available at the Chilliwack Courthouse at approximately 8:30 am on March 31st, 2011. Cst. Farmer wrongly concluded that the Courthouse was not open until 9:30am. She testified that she typically calls the judicial justice (in Chilliwack) but did not do so on this occasion.

She simply concluded thata justice was not in the Courthouse until 9:30 am. [91] She was anxious to obtain the warrant as soon as possible, and she did not see any need to wait until the Courthouse opened. Shecompleted the ITO and faxed it as soon as possible to the Judicial Justice Centre. [92] At para. 10 of the ITO, Cst. Farmer stated that there was no justice or Provincial Court judges presiding at the Chilliwack LawCourts, and that the Judicial Justice Centre is located approximately 92 kilometres from Chilliwack.

It would thus take over an hourdriving time one way to reach the Judicial Justice Centre in Burnaby. [93] Counsel made the further admissions that the office of the JCM opens at 8:00 am, and that it is not unusual for a judge to be atthe Courthouse at 8:30 am or a few minutes later. [94] I believe I can take judicial notice of the fact that the Chilliwack police station is no more than a 5 to 10 minute drive to theChilliwack Courthouse. [95]

Section 487.1(4)(

a) of the Code contains the following mandatory language; 487.1(4) An information submitted by telephone or other means of telecommunication shall include (

a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice; [96] Humphries J. discussed s. 487.1(4) at paras. 25-30 in R. v. Farewell and Farewell [supra].

At para 25 she stated the following: [25] Based on the reasoning in Smith, then, I conclude that the failure to make inquiries in itself is not fatal to the warrant unless theaccused establishes on the amplified review either that the officer was deliberately misleading the authorizing justice, or that there was infact an opportunity to appear in person before a justice, whether or not the officer was aware of it at the time.

However, the failure toinquire is still relevant if it affects the consideration of the sufficiency of the words used to communicate the officer’s belief that it isimpracticable to appear in person, because this is a question of fact dependent on the circumstances of each case. [97] In Farewell and Farewell, Humphries J. concluded that the officer had no particular knowledge of the availability of thejustices or judges, and made no effort to inquire about that availability. Humphries J. did not conclude that the officer did not honestly

believe what she had written in the ITO, but she had no way of knowing if the words were true or not (para. 26). [ 98 ] At para. 27 of Farewell and Farewell , Humphries J. stated: [27] In other circumstances, depending on the evidence that is available on the amplified review as to the state of knowledge of the affiant and the basis for it, these very words might be sufficient, but in the circumstances here they are not.

They do not properly inform the authorizing justice as to the reasonableness of the officer’s belief, which is an essential prerequisite for issuing a telewarrant, because the officer who provided the information had no knowledge, personal or otherwise, as to whether the statement that it was impracticable to appear in person was accurate or not. [ 99 ] Humphries J. concluded that if the authorizing justice had known that the officer had no direct or indirect knowledge as to the truth of the information contained in the ITO, the justice would not have issued the warrant.

Humphries J. concluded that the warrant was deficient on the amplified review. She quashed the warrant, and found that the search was in violation of s. 8 of the Charter . She then considered the pre- Grant analysis to conclude that the administration of justice would not be brought into disrepute by the admission of the evidence regarding the search. [ 100 ] In R. v. Nguyen [supra] Joyce J. reviewed the authorities up to 2006, and concluded that the law is as follows with respect to s. 487.1 of the Criminal Code : 1.

In order to obtain a search warrant by telecommunication the informant must honestly believe that it would be impracticable to appear personally before a justice or provincial court judge. 2. “Impracticable” means something less than impossible and imports a large measure of practicality, what may be termed common sense. 3. The informant must have a reasonable basis for his or her belief. 4. The informant must set out in the information to obtain the warrant the circumstances that make it impracticable to personally appear. 5.

In order to grant the warrant the authorizing justice must be satisfied that the information to obtain discloses reasonable grounds for dispensing with a personal appearance. 6. If the accused alleges a breach of his or her Charter rights based upon a search that is allegedly unlawful because a telewarrant does not comply with the requirements of s. 487.1 of the Criminal Code , the accused bears the onus of proving the violation on a balance of probabilities. 7.

The failure on the part of the informant to make inquiries in itself is not fatal to the warrant unless the accused establishes on the amplified review either that the officer was deliberately misleading the authorizing justice, or that there was in fact an opportunity to appear in person before a justice, whether or not the officer was aware of it at the time. 8. Whether an information to obtain a search warrant contains sufficient material to meet the requirements of the Criminal Code is a finding of fact that will depend on the circumstances of each case. 9.

The failure to inquire may be relevant if it affects the consideration of the sufficiency of the words used to communicate the officer’s belief that it is impracticable to appear in person, i.e. it shows that there was no basis upon which the informant could believe the statement made in the ITO and the statement is therefore misleading. [ 101 ] In Nguyen , Joyce J. was satisfied the informant police officer honestly believed that it was impractical for him to appear in person, because no justice was available.

Nor did the defence in Nguyen call any evidence to establish that a justice or judge was in fact available on that occasion. The informant’s statement in the ITO that no justice or judge was available was not shown to be an incorrect statement. The authorizing justice was entitled to grant the search warrant. [ 102 ] In R. v. Ling [supra] Bauman J.A. dealt with the same issue. In Ling , the police officer had not made any inquiry as to the availability of a justice at the Grand Forks Courthouse.

The officer also made no effort to explain why it was impracticable to travel to nearby jurisdictions, to appear before a justice who might have been present in one of those locations. At para. 27 Bauman JA stated the following: [27] In the absence of any effort to actually confirm the unavailability of a JJP, this case is unlike that in R. v. Berry , 2002 BCSC 1742 , or R. v. Young , 2008 BCCA 513 . In those cases the affidavits of the officers made it clear that there were, in fact, no JJPs ever present in the respective communities (see also R. v.

Smith , 2005 BCCA 334 , 199 C.C.C. (3d) 404, at para. 43-46 ). [ 103 ] In Ling there had also been a failure by the affiant police officer to disclose a material fact, being Source A and his or her information. So there were other errors made by the police, in addition to the failure to check on the availability of a justice. After a consideration of the jurisprudence on s. 24(2), the Court excluded the evidence. [ 104 ] In R. v. Nguyen [supra], the Court of Appeal had a similar matter as in Ling . The Court decided Nguyen one week after Ling .

However in Nguyen , the affiant officer applied for a telewarrant on a Sunday. The officer stated in the ITO that it was impracticable for him to appear personally because he was unable to access the services of a judge or a justice. The Provincial Courthouse was closed.

The trial judge concluded that given the application for the warrant was being made on a Sunday, at 5:00 pm, and given that the officer had been told by a person at the Judicial Justice Centre to fax the materials to the Centre, it was reasonable for the officer to follow the procedure that the Centre wished him to follow. [ 105 ] Kirkpatrick J.A. found there was no merit in the appellants’ argument that the trial judge erred. The onus was on the appellants

to demonstrate that the standard of impracticability was not met. The appellants tendered no evidence to demonstrate that a justice was available to receive in-person applications. Accordingly, the Court did not accede to that ground of appeal. [ 106 ] I had a similar argument in R. v. Nguyen [supra]. I found the officer did not comply with s. 487.1 of the Criminal Code . The officer in Nguyen also had made no inquiry if a justice was available in Chilliwack.

He immediately sent the ITO to the Judicial Justice Centre without making any inquiry as to whether or not it was impracticable for him to appear in person before a justice in Chilliwack. I followed the reasoning of Devitt P.C.J. in R. v. Koprowski , [2005] B.C.J. No. 2940 . I found there was no foundation for the issuance of the telewarrant, and that the subsequent search contravened s. 8 of the Charter . [ 107 ] In R. v. Ho [supra], Meyers P.C.J. considered R. v. Ling , R. v. Koprowski , my decision in R. v. Nguyen , as well as other authorities in a similar set of circumstances.

The affiant police officer stated in the ITO that he was requesting a telewarrant rather than attending face to face with a justice or a judge, because the Richmond Courthouse was closed, and would not open until Monday morning. Meyers P.C.J. concluded in the facts of that case that the Crown had not satisfied him that objectively it was impractical for the affiant officer to have applied for the warrants in person.

Meyers P.C.J. found a breach of s. 8 of the Charter , and further found that the breach was not simply a technical and unimportant one, but rather was a significant omission. [ 108 ] Meyers P.C.J. considered the cumulative violations in Ho , and balancing all of the “ Grant Factors”, he concluded that the repute of the administration of justice would be adversely affected by admitting the evidence (para. 261). [ 109 ] In this case I am satisfied that Cst. Farmer may have honestly believed that it was impractical for her to appear in person before a justice or a judge in the Chilliwack Courthouse.

She testified that there was a degree of urgency. She agreed with her statement in the ITO that there were no justices or Provincial Court judges presiding in the City of Chilliwack, or elsewhere, as the Chilliwack Courthouse was closed. [ 110 ] However, Cst. Farmer wrongly believed that the Courthouse did not open until 9:30 am. The day in question was a Thursday. In the past she would call the justice at the Courthouse. She did not bother to do so on March 31 st , 2011. She simply took the position that a justice or a judge would not be available until 9:30 am. Cst.

Farmer was concerned about the police resources in place doing surveillance at the residence. She did not see any need to wait. [ 111 ] She testified that after she did some preliminary investigation in the morning at the residence, she returned to the office, finished the ITO, and faxed it as soon as possible to the Judicial Justice Centre. [ 112 ] According to the admissions of fact, the office of the JCM was open at 8:00 am (that day). It would not be unusual for a judge to be at the Courthouse at 8:30 am or a few minutes later.

And occasionally an RCMP member does contact the JCM regarding the availability of a judge or a justice to grant a warrant. [ 113 ] Accordingly, I find that Cst. Farmer neglected to confirm the unavailability of a justice or a judge on a morning when the office of the JCM was open for inquiries by the police. I find her failure to inquire is relevant. Cst. Farmer did not have a reasonable basis for her belief that it was impracticable, or might have been impracticable, to appear personally before a justice or a judge in the Chilliwack Courthouse.

I find she did not turn her attention to the local Courthouse being open and that the JCM was available to assist her. [ 114 ] I find a breach of s. 8 of the Charter . I further find that the breach is not simply a technical and unimportant one. It was a significant omission. There is no foundation for the issuance of the telewarrant. I find the warrant to be invalid. The police had no authority to enter the residence and conduct the search. [ 115 ] It was only by entering the residence that the police had the authority to arrest the two accused found inside the residence.

Accordingly, their arrest was in breach of their s. 9 Charter rights. It is not necessary for me to decide the issue raised by the defence that the police lacked the grounds to arrest the accused. It is also not necessary for me to deal with the defence application that there was no evidence with respect to the informational component of s. 10(

b) of the Charte r with respect to either accused, and thus a breach of their s.10(

b) Charter rights. Admissibility of the evidence pursuant to s. 24(2) of the Charter [ 116 ] The framework for the s. 24(2) analysis was established in R. v. Grant [supra]. The most recent articulation of the s. 24(2) analysis is found in R. v. Vu , 2013 SCC 60 .

The Court in Vu confirmed the articulation set out in Grant , at para. 68 : [68] Section 24(2) of the Charter requires that evidence obtained in a manner that infringes the rights of an accused under the Charter be excluded from the trial if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. The burden is on the party seeking exclusion to persuade the court that this is the case. In R. v.

Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, the Court established that [w]hen faced with an application for exclusion under s. 24(2), a court must 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 state misconduct), (2) the impact of the breach on Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. [para 71] [ 117 ] The Court in Grant stated at para. 72 : “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law”. 1 .

Seriousness of the Charter -infringing state conduct [ 118 ] Joyce J. in Nguyen [supra] reviewed the framework for the three avenues of inquiry. With respect to the first, Joyce J.

summarized the following with respect to the Grant analysis at para 6 : 1. The concern of this part of the enquiry is not to punish the police or to deter Charter breaches. The main concern is to preserve public confidence in the rule of law and its processes. I take that from para 73 of the decision. 2. State conduct resulting in Charter violations varies in seriousness. Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

Admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute. I take that from para. 74 of the decision. 3. Extenuating circumstances, such as the need to prevent the disappearance of evidence may attenuate the seriousness of police conduct. Good faith on the part of the police will also reduce the need for the Court to disassociate itself from police conduct.

However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. Deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence, and I take that from para. 75 of the decision. 4. Evidence that a Charter -infringing conduct was part of a pattern of abuse tends to support exclusion. [ 119 ] On the first factor, I conclude the Charter -infringing state of conduct was serious. Cst. Farmer was required to comply with the mandatory conditions of s. 487.1 of the Code .

Her failure to make inquiries about the availability of a justice or a judge at the Chilliwack Courthouse is not technical in nature. While I find that Cst. Farmer’s actions do not amount to bad faith, there is an absence of good faith in not making the requisite inquiry. She concluded that once the ITO was completed, the expedient route to obtain the search warrant was to fax the ITO to the Judicial Justice Centre, rather than making an inquiry of the JCM about the availability of a justice or a judge in Chilliwack. The JCM was available at 8:00 am that day. [ 120 ] Cst.

Farmer’s statement at para. 10 of the ITO that “presently there are no judicial justices of the peace or Provincial Court judges presiding in the City of Chilliwack [or elsewhere] as the Chilliwack Law Courts are presently closed”, thus making it impracticable for her to appear personally before a justice, as required by s. 487.1 (4) (

a) of the Criminal Code , was erroneous. The Courthouse was not closed when she faxed the ITO to the Judicial Justice Centre. She was incorrect when she thought the Courthouse did not open until 9:30 am. She did not take reasonable steps to make the necessary inquiry about the availability of a justice. [ 121 ] The police failed to come up to Charter standards in complying with s. 487.1(4) of the Code . 2. The impact of the breach on Charter -protected interests of the accused [ 122 ] With respect to the second avenue of inquiry, Joyce J. in Nguyen [supra] had the following helpful

summary of the impact of the breach on the Charter -protected rights of the accused as set out in Grant , at para 7 : 1. This enquiry requires an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, bringing the administration of justice into disrepute. 2.

For example, the interest engaged in the case of a statement obtained in breach of the Charter includes the s. 7 right to silence. The more serious the incursion on these interests the greater the risk that admission of the evidence would bring the administration of justice into disrepute. 3. Similarly, a breach of s. 8 of the Charter may impact on protected interests of privacy.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy or that demeans his or her dignity is more serious than one that does not. [ 123 ] Turning then to second stage of the s. 24(2) inquiry, this incident involved an unauthorized search of a private residence. Such an unauthorized search is a serious intrusion, as set out in R. v. Jones , 2013 BCCA 345 , at para 48 . [ 124 ] MacKenzie J.A. in R. v.

Voong , 2013 BCCA 527 , stated the following under the second stage of the s. 24(2) inquiry, at para. 100 of her reasons: [100] The more serious the incursion on the accused’s Charter -protected interests, and the extent to which the breach undermined those interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. Thus, in my view, in this case, the inquiry also favours exclusion. [ 125 ] I find the impact of the breach on the accused’s Charter -protected rights is at the high end of the scale, and strongly favours exclusion of the evidence. 3.

Society’s interest in the adjudication of the case on its merits [ 126 ] In R. v. Vu [supra], the Supreme Court considered this third stage of the s. 24(2) inquiry. At para. 73, the Court stated the following: [73] The third stage of the s. 24(2) inquiry requires the Court to consider society’s interest in the adjudication of the case on its merits. The relevant question here is whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion : Grant at para. 79 .

The factors to be considered are the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the offence, although this consideration has the potential to cut both ways: Grant , at paras. 81, 83 and 84 .

[127] There is a societal interest in the adjudication on the merits of charges of production and possession for the purpose oftrafficking. As the MacKenzie J.A. stated in R. v. Voong [supra], at para. 102: [102] As this Court noted in R. v. Whitaker, 2008 BCCA 174 at para. 74, “...the Supreme Court of Canada has consistently held thatoffences involving the distribution of marihuana are ‘serious’: Mann [R. v.Mann, 2004 SCC 52] at para. 57, R. v.

Buhay, [2003]1 S.C.R.631, 2003 SCC 30 at para. 68.” [128] As in Voong, the Crown here did not adduce evidence as to the value of the grow operation, which evidence could have assistedthe court in determining the seriousness of the offence. Such value would be relevant to the consideration of “all the circumstances”, asto whether the admission of the evidence would bring the administration of justice into disrepute. [129] In oral submissions, counsel seem to have agreed that the operation was a medium sized one.

The admission of fact states thatthe plants were possessed for the purpose of trafficking, and that they were being produced for the purposes of s. 7(1) of the ControlledDrugs and Substances Act. [130] Thus this was a commercial grow operation, involving an electrical room, a drying room, a nutrient room and a clone room inwhich there were 364 clones. There was also a grow room that had 137 plants. There was another drying room and clone room that hadno marihuana plants. There was equipment consistent with a marihuana grow operation. [131] In R. v.

Voong, MacKenzie J.A. considered the reliability of the evidence, even as might be determinative of guilt, as not beingthe sole factor to consider at the third stage of the test.

She stated at para 105: [105] The Court held in Grant at para. 84, “While the public has a heightened interest in seeing a determination on the merits where theoffence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakesfor the accused are high.” [132] In Voong, MacKenzie J.A. held at para. 87 that there was not sufficient evidence on review to support the issuance of thewarrant.

Accordingly, the police in Voong obtained evidence in a manner that breached the accused’s right to be free from unreasonablesearch and seizure under s. 8 of the Charter. [133] In considering the third stage of the Grant analysis, MacKenzie J.A. held at para. 106 of Voong that “the evidence should beexcluded because its admission would, in the long term, diminish the integrity of the administration of justice and the public’sconfidence in it.” [134] Likewise, in Ling, Bauman J.A. considered the effect of excluding the evidence gathered in that search.

He stated at para. 54 thefollowing: [54] While the effect of excluding the evidence gathered on the search will devastate the Crown’s prosecution of these serious charges,in the balance is the need for police to diligently, most carefully, and fully make out the case for a search warrant’s issuance. [135] Bauman J.A. then considered R. v. Bohn, 2000 BCCA 239, at paras. 46-47, where Ryan J.A. agreed with the comments ofDoherty J.A. in R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743, quoting the remarks of Iacobucci J. in R. v.Burlingham (1995), (SCC), 97 C.C.C. (3d) 385 (S.C.C.) at 408.

Bauman concluded at para. 55 of Ling that to admit theevidence gathered pursuant to the warrant would bring the administration of justice into disrepute and he excluded the evidence. [136] I am mindful in Ling that there were other errors made by the police, in addition to the failure to check as to the availability of ajustice or judge. [137] Here, I conclude that to admit the evidence gathered in contravention of the requirements of s. 487.1(4) of the Criminal Codewould bring the administration of justice into disrepute, although society does have an interest in having the charges adjudicated on theirmerits. [138] Accordingly, I exclude the evidence discovered as a result of the s. 8 and s. 9 Charter breaches.

W. Young Provincial Court Judge