R. v. Owens and Essex Date:, 2011 BCPC 351

Citation: R. v. Owens and Essex Date: 20111004 2011 BCPC 0351 File No: 71794-2c Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL OWENS and KATHERINE ESSEX RULING OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Crown: R. Randhawa Counsel for the Accused: (Owens), K. Beatch Counsel for the Accused: (Essex), D. Schultz Place of Hearing: Abbotsford , B.C.

Date of Hearing: October 4, 2011 Date of Ruling: October 4, 2011 [ 1 ] THE COURT : On February the 18th, 2010, police executing a search warrant discovered an extensive marihuana grow operation in the chicken barn of a large rural property. The two accused seen leaving the property were detained for investigation, although that meant being handcuffed, searched and taken back to police cells, before being formally arrested and allowed access to counsel.

BC Hydro attended to dismantle the hydro bypass. [ 2 ] The evidence in this case went in by way of an omnibus voir dire, this predating the Court of Appeal decision in R. v. Wilson 2011 BCCA 252 . All counsel did agree to the procedure. Defence challenges the admissibility of various forms of evidence supporting charges of production of marihuana, PPT and theft of hydro, alleging breaches of s. 8, 9 and 10(

b) of the Charter . More specifically, the issues are: 1. The sufficiency of the Information to Obtain a search warrant, based on smell of marihuana alone. 2. Was the detention of the accused a de facto arrest, and in breach of s. 9, the right not to be arbitrarily detained? 3. Was the roughly two-hour delay in providing access to counsel in breach of s. 10(b), the right to retain and instruct counsel without delay?

4. Did the failure to obtain a Criminal Code search warrant for the attendance of a BC Hydro employee constitute a warrantlesssearch, in breach of s. 8? As always, the onus is on the defence to establish the Charter breach on a balance of probabilities, before raising the issue of exclusionof evidence pursuant to 24(2). [3] I will start with the sufficiency of the Information to Obtain. The Supreme Court of Canada has fully established the test.

A trialjudge is required to examine the evidence that was placed before the justice, as amplified at trial, and after expunging any misleading orerroneous information, to determine whether sufficient reliable information remains to support the warrant. I caution myself not tosubstitute my own view for that of the authorizing justice, but simply to determine whether there remains some evidence that mightreasonably be believed upon which a search warrant could have issued. Garofoli, (1990) (SCC), 60 C.C.C. (3d) 161;Araujo, (2000) 2000 SCC 65 , 149 C.C.C. (3d) 449.

As well, the standard to be applied in assessing reasonable grounds is notproof beyond a reasonable doubt or even a prima facie case, but one of reasonable probability, also termed credibly based probability, R.v. Storrey, (SCC), [1990] 1 S.C.R. 241. [4] As I referred to earlier, this ITO was based on smell of growing marihuana alone. A number of cases have referred to thesubjective and transitory nature of smell, largely incapable of objective verification. Our Court of Appeal in R. v. Monroe, (BC CA), [1997] B.C.J.

No. 1002, stated that: ... reliable evidence of an odour of marihuana having been detected outside a building might be a sufficient basis to support the issuanceof a warrant, although one would generally expect an explanation for other factors not being established. [5] A decision of the British Columbia Supreme Court is very much on point and particularly helpful. R. v.

Hennessy, 2005 BCSC408 at paragraph 25: Bearing in mind the caution with which evidence of olfactory observations must be approached, the issue is whether, in thecircumstances before the issuing Judicial Justice of the Peace, there was reliable evidence of a smell of vegetative marijuana, whetherthat smell was satisfactorily isolated to the house that the officer sought to search, and whether there was an explanation for the absenceof any other indicia to support the application. More broadly put, the issue is whether these circumstances constitute a sufficient basis toissue a warrant.

The reliability of the evidence as to the presence of smell will be enhanced if it is confirmed by more than one person. And going on to the next paragraph: A further consideration relevant to the issue of reliability is the opportunity that the witness had to detect the smell.

Reliability may beenhanced if the smell is detected on a number of different occasions. [6] The ITO in this case states that the odour of marihuana was detected just outside the target property on a number of differentoccasions throughout February, by four experienced police officers (in addition to a similar report from a confidential source). Theinvestigating officer, Cst. Burrows, smelt growing marihuana six times over four days. The other officers once each.

All four are able todistinguish the smell of growing marihuana, the investigating officer having been involved in over a hundred marihuana grow operations,and the others 40, 120 and 150. Applying the analysis of the Hennessy decision, there was highly reliable evidence as to the smell ofvegetative marihuana. [7] Was the smell satisfactorily isolated to the target property? This requires an understanding of the layout of this rural property, asdescribed in the ITO and amplified at trial.

According to the investigating officer, the target property is about four acres in size, its westproperty line fronting onto Riverside Street, which runs north/south. On Riverside, there is an operating automotive shop to the south ofthe target property and a one-acre residential property to the northwest. The Fraser River and the Matsqui Trail are to the north of theproperty, with the Matsqui Trail running east/west, while fields and the CN train tracks lie to the east.

There is a small cluster of houseson Page Road some distance away, to the southeast. [8] On all but one occasion, officers detected growing marihuana when standing on Riverside near the middle of the west propertyline of the target residence. The investigating officer isolated the smell to the target residence in three ways: 1. The wind was travelling constantly east to west over the three outbuildings that appear to be chicken barns. 2. The officer could see beyond the barns to the east and there are no visible houses, farms or marihuana crops to the east.

Tothe east is a railway that runs north/south and Matsqui Trail that runs east/west. 3. The officer travelled over one kilometre along the Matsqui Trail that runs east/west viewing the area to the east of the targetresidence. He did not detect odour of growing marihuana or any marihuana crops or buildings to the east. [9] On one occasion, two officers detected the smell while standing northwest of the target property, at the end of Riverside where itmeets the Matsqui Trail. Again, the investigating officer gave his reasons for isolating the smell to the target residence: 1.

The wind was intermittent travelling northwest. 2. The intervening residential property, (6576 Riverside), did not appear to be a marihuana grow operation, as all the windowson the ground and upper level were not draped and furniture could be seen inside. 3. Seven minutes later, after the wind changed now going east to west, odour was only detected at the west property line of thetarget residence.

[10] On behalf of his client Mr. Beatch challenges the reliability of this conclusion isolating the smell to the target residence. Hecorrectly emphasizes the affiant's duty of full and frank disclosure of all material facts, to be communicated in a manner that does notmislead or create a false impression. After carefully analyzing the ITO as amplified at trial, I cannot agree with his concerns. First, winddirection, being the ITO's statement that the wind was travelling east to west over the three outbuildings. Cst.

Burrows acknowledged hecould not see where the wind was coming from; only know its direction by the time it reached him. However, he was standing just 50 to70 metres from the chicken barns. His statement concerning the wind's direction was reasonable and not misleading. [11] Second, the ITO's statement that there were no visible houses or farms to the east, only the train tracks and the Matsqui Trail. Inamplification, it was established that the train tracks are raised by ten to 12 feet, but not enough to prevent a person from seeing anybuildings beyond.

As well, the officer travelled two-and-a-half kilometres on the Matsqui Trail and confirmed there were no buildings inthe direction he was referring to as east. Defence has pointed to the small residential area on Page Road and to even more distant farms,all to the southeast, some distance away. It was neither misleading nor inaccurate to not mention these distant buildings that were in adifferent direction than the one being pointed to. In R. v. Shokar, 2006 BCSC 770, at paragraph 24, Mr. Justice Joyce made a findingthat is equally applicable here.

In that case the constable: ... was able to get within 30 metres of the building from which spot he clearly detected the odour of fresh marihuana, an odour withwhich he was very familiar. The building in question is separated by considerable distance from any other structure (sic) leading to thereasonable inference the smell must have been coming from the building in question. [12] Third, the ITO's statement about the neighbouring residence: all the windows on the ground and upper level were not draped.

Inamplification, it was acknowledged that it was possible there was an underground basement that was not visible, and that the officers didnot walk around the house and look at all the windows. Nevertheless, it cannot be said that the observations as stated were misleading orunreliable, or in any way give a false impression. [13] I do agree with two points raised by the defence about the amplification evidence at trial. Cst. Young testified to making hisobservations of smell at 6487 Riverside, not 6570, the target property. I am satisfied from the whole of his evidence, when taken withthat of Cst.

Burrows, that he has incorrectly stated the address and that he was indeed at the target property. I note from Exhibit J thatthere is no 6487 Riverside. If I am wrong about that, the correct procedure would be to excise the ITO's reference to Cst. Young. Regarding Cst. Nicholson, the ITO says he also noticed there were no buildings, et cetera, that could have generated the odour to theeast.

This was not confirmed at trial, so the last sentence in paragraph 17 should be excised. [14] Having done so, I find nothing in the ITO as amplified at trial which would cause me to question the reliability of the officers'observations. Like the Hennessy case, the isolated, heavily treed location (not to mention the chicken barns), provide adequateexplanation for the failure to gather some of the other usual evidence of marihuana grow operations. And, as Cst. Burrows testified, hethought he had enough evidence to support the issuance of a search warrant, without waiting for Hydro records. I agree.

Reviewing theITO in light of amplification at trial, there remains more than sufficient reliable information upon which the search warrant could haveissued. The search warrant which located the extensive marihuana grow operation was valid; search and seizure from the property didnot violate s. 8 rights. [15] Was the detention of the accused a de facto arrest, and in breach of s. 9, the right not to be arbitrarily detained? Half-an-hourbefore the search warrant was issued, the two accused were seen driving out of the target property. The man was identified as beingthere for 15 minutes to one hour.

The woman was just seen as a passenger in the truck as she was leaving. It was assumed that the manwas exerting some form of control over the property when he got out by the locked gate, but the surveillance officer acknowledged hewas unable to actually see if it was the accused or a third party who dealt with the gate.

In any event, instructions were given to stop anddetain the two, and all officers proceeded on the basis of this being an investigative detention. [16] The principles of investigative detention were established by the Supreme Court of Canada in R. and Mann, 2004 SCC 52, [2004] S.C.J. 49 at paragraph 45: ... police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstancesthat the individual is connected to a particular crime and that such a detention is necessary.

In addition, where a police officer hasreasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search ofthe detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, Inote that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answerquestions posed by the police.

The investigative detention and protective search power are to be distinguished from an arrest and theincidental power to search on arrest... [17] The handling of the two accused in this case clearly was not an investigative detention notwithstanding the stated intentions ofthe police. Both accused were handcuffed and searched, and given their Charter rights; both saying they wanted a lawyer. Referring tothe flowchart, I am satisfied keys were seized from the truck, and Mr. Owens was asked questions about the target property. The timingthereafter is significant. They were stopped and "detained" at 3:52 p.m.

At 4:08 they were placed in locked compartments of the policewagon. Because the jail cells were busy, they were confined for an hour in the wagon in the police parking lot. During that time, thesearch warrant was actually issued at 4:25 and executed at 5:00 p.m. At 5:32, Owens was formally arrested, Ms. Essex not 'til 5:52. Itwas only then they were provided access to counsel. The total time from "detention" to arrest was one hour 40 minutes for Mr. Owens,with 71 minutes of that time locked and handcuffed in the paddy wagon. The total time for Ms.

Essex was two hours, with 104 minutesof that time similarly confined within the wagon. [18] Our Court of Appeal in R. and Strilec, 2010 BCCA 198, held that placing a detained person in handcuffs in the back of a lockedpolice car for under ten minutes was to place a person under de facto arrest. Further, this was not a minimally intrusive detention, butrather "significant and coercive", placing that person "in a vulnerable position having been taken into the effective control of the police.” Far more so, then, the circumstances of this case.

Viewed reasonably in all the circumstances, there is no question that Owens and Essexat 3:52 were both under de facto arrest.

[ 19 ] All of the officers involved testified they did not have reasonable and probable grounds to effect an arrest at that point. In other words, the subjective basis was missing, as was the objective basis as well. The search warrant had not yet been issued and the marihuana grow operation had not yet been found. The accused were only seen leaving the large rural property. Aside from assumptions, neither were in fact seen exerting control over the property by locking or unlocking the gate.

Nor was there surveillance tying them to the property, or more particularly, to the building where the marihuana grow operation was believed to be. [ 20 ] As stated by Mr. Justice Frankel in R. and Whitaker , 2008 BCCA 174 : The fact that a person is at, or inside, a place believed to contain drugs, and in respect of which a search warrant has been issued, does not, without more, provide objective grounds for his or her arrest.

The police are not entitled to arrest first and then determine whether the person arrested is connected to the offence under investigation. [ 21 ] The de facto arrest in this case was unlawful, but was it arbitrary within the meaning of s. 9? This depends on the extent of the departure from the standard of reasonable and probable grounds.

Here, the surveillance officer who gave the instructions to "detain", and from here on in I will refer to him as the instructing officer, testified that he was not aware of any difference between an arrest and an investigative detention, and thought he had the same powers under both. To him, the only difference were the words spoken by police; this in spite of the fact that the Mann decision was released seven years ago. Two of the police officers apparently had been told a search warrant had been issued, when that was not in fact the case, and indeed it had twice been refused.

There was also some evidence from one of the officers that, at the briefing, they were instructed to arrest anyone leaving the property, not just those exercising control. [ 22 ] Given the whole of the circumstances, I am satisfied on a balance of probabilities that the accused were both arbitrarily detained in breach of s. 9. The search of the truck with seizure of the keys was not incident to a lawful arrest, and accordingly in breach of s. 8, as was the subsequent warrantless search of the truck at the ident bay. [ 23 ] Was the two-hour delay in providing access to counsel in breach of s. 10(b)?

The short answer is yes. Notwithstanding both accused immediately indicating their desire to contact counsel, it took more than two hours for the police to afford Ms. Essex that right, and just under two hours for Mr. Owens. Regarding Owens, the police had a clear obligation to refrain from eliciting evidence until he had a reasonable opportunity to consult counsel. Questions at the scene breached that right. There was no urgency; time was not running out on the execution of the search warrant. Indeed, it had not even been issued.

Owens' statements at the police station, both before and after accessing counsel, followed the one on the road, so as to be tainted by it. The statements were all causally and contextually linked so as to be part of the same transaction. [ 24 ] I am not so concerned about Mr. Owens being unable to reach counsel of choice. Following R. v. Willier , 2010 SCC 37 , I am not persuaded the police interfered with his right to a reasonable opportunity to consult with counsel of choice. It seems to be more they were simply unable to find a contact number, and Owens did speak with duty counsel. The breach of 10(

b) comes through the initial questioning before being given access to counsel, and the tainting of subsequent statements thereafter. As well, for both accused, I am not satisfied that security concerns justified the delay in providing access to counsel for as much as two hours. Preventing them from talking to others before the search warrant was executed might well be reasonable, but not from accessing a lawyer. Owens made two statements to the police before he was afforded his right to counsel. They both made one videotaped statement after, but also after their 10(

b) right to retain and instruct counsel without delay had been breached. [ 25 ] Did the failure to obtain a Criminal Code search warrant for the attendance of a BC Hydro employee constitute a warrantless search, in breach of s. 8? Without first obtaining a Criminal Code search warrant to investigate theft of electricity, police called in an electrician contracted by BC Hydro. His purpose for attending was to ensure police safety by dismantling any bypass, and to investigate possible theft of electricity. By his actions upon attending, he did both.

Crown relies on the Tariff, which gives BC Hydro the right to attend on private property to check its own equipment "to ascertain the quantity or method of use of service." I question whether this is available, in that it was not referred to by the witness, and I do not believe there is evidence that this equipment actually belonged to BC Hydro. I may well be wrong about that, but I cannot be satisfied the Tariff applies. [ 26 ] Defence relies on several cases which held that CDSA warrants do not authorize a search for evidence of Criminal Code theft offences.

A further warrant would be required to authorize such a search, without which the search was unreasonable. However, those cases also indicate that it depends on the real or primary purpose of the attendance. The search without a Criminal Code warrant is unreasonable when the primary purpose is to investigate theft of electricity, and the safety of the police an unsubstantiated concern. R. v. Pete , [1990] B.C.J. No. 607 ; R. v. Nguyen , 2001 BCPC 235 . [ 27 ] In this case, safety concerns were both real and significant.

The accused had told the police the power had to be turned off by 8:00 p.m. and that it would light up on fire if not turned off properly. He had said not to touch the power down breakers or it would start a fire. The police responded seriously to this warning. Fire trucks attended, as did the electrician with BC Hydro, who from his evidence immediately started the process of turning off the power appropriately. Unlike those other cases, he did not just investigate the theft.

Given the circumstances, I am satisfied the attendance of the BC Hydro employee without Criminal Code search warrant was not an unreasonable search. To put it another way, I am satisfied there were exigent circumstances. [ 28 ] To summarize, the search warrant for the property was valid, as was the attendance of the BC Hydro employee. The detaining of the two accused was a de facto arrest, both unlawful and an arbitrary detention breaching s. 9. The search and seizure from the truck breached s. 8.

The delay in providing access to counsel breached s. 10(b). [ 29 ] The question still remains, should the evidence flowing from those breaches be excluded pursuant to 24(2)? Rather than continue on and deal with specific breaches, as discussed earlier I believe all counsel are in agreement that I should adjourn and give counsel an opportunity to present further submissions regarding 24(2), given the findings I have made. ________________________

C.J. Rounthwaite Provincial Court Judge