R. v. Smith Date:, 2013 BCPC 211

Citation: R. v. Smith Date: 20130807 2013 BCPC 0211 File No: 75215 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Everett Ross Smith RULING ON VOIR DIRE OF THE HONOURABLE JUDGE E.M. BURDETT Counsel for the Crown: Ashley Bayliss Counsel for the Defendant: Richard Hewson Place of Hearing: Kelowna , B.C. Date of Hearing: July 10, 2013 Date of Judgment: August 7, 2013

[ 1 ] Everett Ross Smith is charged with production of cannabis and possession of cannabis for the purpose of trafficking on April 27, 2011 in Kelowna, B.C. [ 2 ] The charges arise from the execution of a search warrant on April 27, 2011 of 11900 Greystokes Road, Kelowna, B.C. This rural property has a residence and a workshop on it, and the warrant authorized a search of both buildings. A marijuana grow operation with 75 plants was found in one room of the residence. The workshop contained a second grow operation with 371 marijuana plants. Apart from the plants, the police seized a number of documents and other materials. [ 3 ] The defence argues that: (

a) there was misleading and inaccurate information in the Information To Obtain a Warrant, which once excised would leave insufficient evidence for the Judicial Justice of the Peace (JJP) to grant the warrant; (

b) The manner in which the search was carried out was unreasonable because the RCMP seized things not authorized by the warrant, thereby breaching the accused’s

section 8 Charter rights; (

c) The conduct of the police showed a consistent and continuing pattern of disregard for the accused’s constitutional rights; (

c) The evidence obtained from the search should be excluded pursuant to section 24(2) of the Charter . [ 4 ] A voir dire was held to determine the validity of the search warrant. THE EVIDENCE ON THE VOIR DIRE [ 5 ] Constable Wong has been a member of the R.C.M.P since 2008. He prepared the Information to Obtain a Search Warrant (ITO), exhibit 1, as well as a draft Warrant to Search. The Warrant ultimately granted by the JJP was marked as exhibit 2. Constable Zuccollo, a police officer for six years, was the exhibit officer. Both he and Constable Wong seized a number of things when the search warrant was executed.

Among those items were marijuana plants, bills and invoices with the accused’s name and the Greystokes address on them; other documents in the accused’s name, but with a different address; and documents that had no name or address on them. [ 6 ] Mr. Everett was not present when the warrant was executed. Was there misleading information in the ITO? [ 7 ] Defence argues that the manner in which Constable Wong characterized the hydro consumption for the residence and the workshop was misleading. [ 8 ] Paragraphs 11, 13, 14, 15 and 32 of the ITO sets out the hydro evidence.

In paragraph 11 Constable Wong set out the average annual hydro consumption for electrically heated and non electrically heated 2000 square foot residences, namely 20,167 kHz and 10,628 kHz, respectively. He calculated the average 60 day usage to be 3361 kHz and 1771 kHz. [ 9 ] In Appendix A, paragraph 30 (

b) he set out his estimate of the square footage of the residence at 2500-2800 square feet. In paragraph U, he stated that he could not see the north side of the shop, but estimated the size as approximately 23 feet by 30 feet, or 600 square feet. [ 10 ] In paragraphs 13 and 14 Constable Wong disclosed that the Fortis billing report showed the property had two meters, both in the accused’s name. One meter was for the residence and the other for the shop. Constable Wong set out the billing history and hydro usage for the residence for 18 months.

He noted that the residence was consuming an above average amount of electricity, more than twice the amount of an average electrically heated home, and noted the latest 61 day reading disclosed what one would normally see for five months of electrical consumption.

Constable Wong stated in paragraph 15 that the shop was also consuming an above average amount of electricity, specifically the most recent reading disclosed consumption in a 61 day period of 18,495 kHz, equal to one year’s consumption of electricity of an average residence. [ 11 ] Constable Wong had earlier applied for a search warrant of this location. On March 16, 2001 he made an application which was considered by JJP Patron, the same JJP who ultimately granted this search warrant.

Paragraph 32 of the ITO sets out JJP Patron’s reasons for denying the March 16 warrant application, namely that Constable Wong did not provide any reasonable “comparables” with respect to the shop hydro usage. Constable Wong provided further information to answer JJP Patron’s query, namely he spoke to Constable Moore who owns a five acre property and has a shop, an electrically heated 2800 square foot home, a 40 foot mobile home, various outbuildings and water troughs with electrical heaters in them all under one electrical meter.

Constable Moore uses his shop for farm equipment, equipment repairs, welding and has air compressors and generators. His electrical consumption for all these uses was 6456 kHz for 60 days. Constable Wong provided another comparable, “shop B”, which had a hydro usage of 161 kHz for a 56 day period. [ 12 ] During cross examination Constable Wong stated that he overestimated the square footage of the residence in an effort to be fair. His estimate was based on his viewing of the residence from the property line. He couldn’t see all sides of the residence and could not determine if the house had a basement.

Constable Wong described his experience in estimating square footages and testified that in his opinion, after he was able to see inside the residence, the size was actually closer to 2200 square feet. [ 13 ] Defence counsel suggested to Constable Wong that if one divided yearly kilowatt hours by the square footage of the target residence the hydro consumption per square foot was 1.6 kilowatt per square foot. The same exercise for the average comparable is 1.7 kilowatt per square foot. Defence suggested that on a square footage basis, the hydro consumption was below average. While Constable

Wong agreed with the calculations put to him, he maintained that the yearly hydro consumption for the target residence was still morethan twice the average of normal electrically heated building. [14] Mr. Hewson also suggested to Constable Wong that the comparables he provided for the shop were misleading in that the firstcomparable came from Constable Moore, who was engaged full time as a police officer and as such would not have used his shop forbusiness purposes.

The second comparable, according to defence, had very low hydro usage, the equivalent to a two 200 watt light bulbsrunning constantly for two months. [15] Constable Wong testified that Constable Moore uses his shop for maintenance of farm equipment, which includes suchactivities as welding, using air compressors and generators.

With respect to the second comparable, Constable Wong testified that heclearly set out the usage of the second shop which was located on a farm and had similar activities – welding, air compression and theuse of a generator. [16] Constable Wong also relied on a FLIR (Forward Looking Infra Red camera) reading and the opinion of the FLIR operator thatthe shop exhibited a heat signature consistent with a marijuana grow operation. The FLIR information is set out in paragraphs 34 to 37 ofthe ITO. [17] Mr.

Hewson submitted that Constable Wong failed to ask the FLIR operator if the heat signature was consistent with otherthings, such as hot tubs. Mr. Hewson argued that in doing so, Constable Wong was “cherry picking” the information he put before theJJP. THE LAW – Standard of Review [18] In R. v. Garofoli (1990), (SCC), 60 C.C.C. (3d) 161 (S.C.C.), Sopinka J. stated that the reviewing judge shouldnot review an authorization de novo. A court, in reviewing the authorization, does not substitute its view for that of the authorizingjudge.

It does not re-hear the application, rather its task is to determine whether, on the evidence, there is any basis upon which theauthorization could have been granted. [19] The scope of review is very narrow. In R. v. Araujo (2000), 2000 SCC 65 , 149 C.C.C. (3d) 449 (S.C.C.) at paragraph51, LeBel J. adopted the Supreme Court’s earlier ruling in Garofoli. In discussing the starting point for any reviewing judge: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge [emphasis added by LeBel J.]. [20] At paragraph 54, the Court emphasized the need for a contextual analysis.

LeBel J. noted: The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from ourCourt cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in thematerial submitted to the authorizing justice of the peace. These cases stress that errors, even fraudulent errors, do not automaticallyinvalidate the warrant. This does not mean that errors, particularly deliberate ones, are irrelevant in the review process.

While notleading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred todo not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conductof the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect theprocess and the preventive function it serves. [R. v.

Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539, at p. 553] An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need forjudicial finality and the need to protect prior authorization systems.

Again, the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, theapplication should have been granted at all by the authorizing judge. [21] LeBel J., also noted the obligation of anyone seeking an ex parte order was to make full and frank disclosure of material facts,they should avoid boiler plate language and should wherever possible submit an affidavit directly from those with first hand knowledge. [22] If there are misstatements, misleading information, and omissions in an ITO, the evidence obtained in the search can beexcluded if the misstatement was part of a deliberate intent to mislead: R. v.

Melenchuk (1993), (BC CA), 24B.C.A.C. 97 (B.C.C.A.). However, even a deliberate attempt to deceive the JJP may not necessarily lead to an exclusion of the evidence: R. v. Bisson (1994), (SCC), 94 C.C.C. (3d) 94 (S.C.C.) [23] Constable Wong was a credible witness.

Further, there is no evidence to conclude that he deliberately attempted to mislead theissuing JJP. [24] It is important to note that the ITO in this case disclosed Constable Wong’s earlier applications for a warrant, the reasons fromthe JJPs denying those applications, and Constable Wong’s further information provided in an effort to answer the queries posed by theJJPs in their rejections. It is clearly apparent that hydro usage was an important issue, in particular the comparables or “averagereadings”.

It is also clear that JJP Patron, in his reasons rejecting the first ITO, was aware of the seasonal variations in hydro usage. While the hydro consumption per square foot of the target property may have been “average” or even below average as suggested bydefence counsel, it is clear that some months of consumption were significantly higher than an average residence, even taking into

account seasonal variations. In light of all the hydro information provided and JJP Patron’s previous dealings with this matter, it is difficult to conclude that the hydro information for the residence and Constable Wong’s characterization of it as “high” would have been misleading to JJP Patron. [ 25 ] With respect to the “comparables” for the shop, Constable Wong provided information regarding the activities that occurred in each shop and the hydro billing history for Shop B. Constable Moore’s Shop A’s hydro usage was included on the same bill as his two residences and some outbuildings on the same site.

He set out that Shop B was used on a daily basis for maintenance of equipment and included the use of an air compressor, welding machine and power tools. Shop B is bigger than the target shop. [ 26 ] There is no question that the hydro consumption for Shop B is low. However there was evidence before the JJP that Shop B was used daily for certain activities which consumed electricity.

Further, although Constable Wong agreed in cross examination that the hydro usage in Shop B was similar to two 200 kilowatt light bulbs burning 24 hours a day, there is no evidence before me to support the defence contention that an “average” shop would use far more electricity. Consequently I cannot conclude that the use of Shop B as a comparable was misleading. [ 27 ] Constable Wong also relied upon the FLIR readings. In the ITO he set out the FLIR operator’s training and expertise.

He relied on the FLIR operator’s expert opinion that the observations both men made while in the helicopter were consistent with an indoor marijuana growing operation located in a portion of the shop. The JJP was able to assess that opinion in light of the FLIR operator’s experience. I do not find the failure of Constable Wong to ask the FLIR operator if the heat signature on the building was consistent with a hot tub or other type of business to be an omission that could have mislead the JJP.

There is no evidence that Constable Wong deliberately chose not to ask the FLIR operator about alternate theories as to what might have caused the heat signature. There is no obligation on an affiant to set out all the possible explanations for a particular observation. As Lebel J. stated in Araujo at paragraph 46 : “So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as A la recherché du temps perdu , as lively as the Kuma Sutra , or as detailed as an automotive repair manual.

All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should not only full and frank but also clear and concise . It need not include every minute detail of the police investigation over a number of months and even years. [ 28 ] As well as the hydro and FLIR information, Constable Wong described an odour of vegetative marijuana both he and Constable Williamson noted coming from the subject property.

An odour of vegetative marijuana alone has been held to be sufficient grounds upon which to issue a search warrant: R. v. Readhead 2006 BCSC 776 , on appeal, 2008 BCCA 193 . [ 29 ] After assessing the ITO, as amplified on review, I must determine whether the JJP could have issued the Warrant. I must assess the evidence in a common sense manner and consider the totality of the circumstances, including reasonable inferences that could be drawn from the evidence.

Here there was evidence capable of supporting a conclusion that there was excessive hydro consumption, the smell of vegetative marijuana coming from the property and the opinion of the FLIR operator. I conclude that the JJP could have issued the warrant on the evidence in the ITO. Was the search carried out in a reasonable manner? [ 30 ] Mr. Hewson argues that the police conduct was such that it demonstrated a fundamental disregard for the law when they ignored the restriction in the search warrant to seize only certain documents. He argues this “overseizure” violated the accused’s

section 8 Charter rights. [ 31 ] Constable Wong provided a draft Warrant to Search with the ITO. In the draft warrant he sought permission to seize “marijuana, marijuana plants, documents identifying ownership and/or residency of 11900 Greystokes Road, Kelowna”. In granting the warrant, the JJP altered the draft and allowed the seizure of: “marijuana, marijuana plants and documents bearing an address of 11900 Greystokes Road, Kelowna.” [ 32 ] Constable Wong took the Warrant to a briefing meeting with other officers who were to be involved in the search. Constable Zuccollo was present.

Each officer read the warrant and then signed the back of warrant. [ 33 ] Once they gained entry to the residence and the shop a number of items were seized. Some of the documents had the address of 11900 Greystokes Road on them, others did not. Constable Wong located a Telus mobility bill with the accused’s name and the Greystokes address on it, a set of scales on the kitchen counter and the marijuana plants. These were handed over to Constable Zuccollo, the exhibit officer. [ 34 ] Constable Zuccollo seized the balance of the materials namely: 1. A black binder with papers inside it.

Constable Zuccollo was of the opinion that it could contain documents showing ownership of the residence. Constable Zuccollo testified he “flipped through” the binder at the residence before seizing it. It contains calendars, some sticky notes and diagrams of construction work to be done in another residence. One loose page for January 23 has a budget for what appears to be a marijuana grow operation. (Exhibit 7 on the voir dire.) 2. A receipt dated 01/04/2011 with the accused’s name and the Greystokes address was seized from the coffee table in the living room. (Exhibit 8 on the voir dire); 3.

A record of employment with the accused’s name and an address in Ontario was seized from a bedside table, along with a payroll deposit document. Constable Zuccollo seized this document as he was of the opinion that the presence and nature of this document showed its owner would have been living in the residence; (Exhibit 9 on the voir dire);

4. A CD (he planned to have it analyzed for fingerprints); 5. Four documents were found in a kitchen drawer (Exhibit 10 on the voir dire):

i) A GST document indicating a credit in the name of the accused dated January 5, 2011 with an Ontario address on it; ii) A Fortis bill in the accused’s name with the Greystokes address on it dated April 18, 2011; iii) A certificate of electrical inspection for 411900 Highway 33 east dated September 17, 2010. (Constable Zuccollo was of the opinionthis document was related to the subject property); iv) a document in the accused’s name, with an Ontario address dated January 12, 2011 discussing outstanding debts owed to the BCMedical Plan; Constable Zuccollo testified that all these documents were seized because they were the types of documents a person would have in their residence; 6.

A Telus bill in the accused’s name and the Greystokes address was located on the kitchen counter. (Exhibit 6 on the voir dire); 7. An amendment to an agreement for sale in the accused and his wife’s names, to purchase property in Dunsford, Ontario, signedon February 14, 2011 was located. Constable Zuccollo seized these documents because he was of the opinion that they were importantdocuments and of such a nature that a person would take them with them if they moved from a residence. (Exhibit 11 on the voir dire); 8. High Times magazine.

This was seized because Constable Zuccollo was of the opinion that it showed a person living in theresidence may have been growing marijuana and using the magazine for growing tips. (Exhibit 12 on the voir dire); 9. Ammunition. He seized this for safety reasons; 10. A plant feeding plan found on the wall in the shed showing dates to apply fertilizer and chemicals. Constable Zuccollo seized thisbecause he thought it showed the person responsible for the marijuana grow operation was organized in its production (Exhibit 15 on thevoir dire); 11. A calendar showing a

schedule for tending the grow operation. This was seized because it showed, in Constable Zuccollo’sopinion, that someone was coming in to tend the marijuana grow operation regularly. (Exhibit 16 on the voir dire); 12. A Fortis bill in the accused’s name and with the Greystokes address, dated October 21, 2010 was found in the shop. (Exhibit 17on the voir dire); 13. Dried marijuana and marijuana plants. [35] Mr. Hewson argues that the police, in conducting this search, ignored the restriction in the search warrant to seize only“documents bearing an address of 11900 Greystokes Road”.

He argues that the police wanted “documents identifying ownership and/orresidency” and when they received a more restrictive search warrant, they ignored it. He argues their conduct showed a fundamentaldisregard for the law. Mr. Hewson argues that the proper course for the police to follow was, upon the discovery of the other documents,to secure the premises and then apply to a justice for a new warrant to seize the additional documents. He argues that the police conductwas a serious breach of the accused’s

section 8 Charter rights and relies on the decision of R. v. Liu, 2011 BCSC 1266. [36] The Crown argues that this case involves an analysis of what was permitted under the search warrant as well as the applicabilityof the plain view doctrine and

section 489 of the Criminal Code. Ms. Bayliss argues that while the warrant sets out what the police cansearch for, it does not restrict what they can seize, and Constable Zuccollo had legitimate reasons for seizing each item and believed thatthe evidence was relevant to the offence. The Crown relies on the cases of R. v. Annett (1984) (SCC), 17 C.C.C. (3d)332 (Ont. C.A.); R. v. Daigle (1994) 49 B.C.A.C. 25 (B.C.C.A.) and R. Middleton, 2000 BCCA 660. [37]

Section 489 of the Criminal Code provides: 489.

(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the personbelieves on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament.

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provinciallaw and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to awarrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[38] In R. v. Sipes [2011] B.C.J. 2761 Mr. Justice Smart dealt with a search warrant where the police sought to search for, amongother things, a computer and documents that proved residency. The issuing justice did not allow the search for a computer and restrictedthe documents to “documents that proved residency at 1077 Fairweather Road”. The police seized a number of things, includingcomputers, during the search. Defence argued that the police conducted a “massive” overseizure and thereby breached the accuseds’section 8 rights. Defence argued that upon discovering the computer and other evidence, the police were required to obtain anothersearch warrant. It was argued that

section 489 of the Criminal Code was simply a codification of the plain view doctrine. [39] Smart J. reviewed the plain view doctrine. He concluded at paragraph 191: In sum, the plain view doctrine is a common law power that permits the police to seize contraband, stolen property or evidence of acrime, without a warrant, when they discover it in plain view when lawfully carrying out their duties. It is a power to seize, not search. [40] He went on to discuss the history of

section 489 of the Criminal Code and concluded at paragraph 203: The history, wording and stated purpose of s. 489 of the Code all support that the

section is not merely a codification of the plain viewdoctrine. Rather, s. 489(1) of the Code authorizes the police to seize things they find during a lawful search without delaying to apply foranother warrant. This

interpretation is consistent with decisions from our Court of Appeal (Yue and Daigle) and the Alberta Court ofAppeal (Makhmudov). (Emphasis added) [41] Smart J. added that

section 489 delegates to the police the authority to seize evidence not authorized by the warrant providedthey have the reasonable grounds to do so. He stated that

section 489 shifts the onus of demonstrating the required grounds to after thesearch rather than before: It is, in this sense no different than the plain view doctrine. The

section does not require the police to obtain a second warrant when they"discover" things not authorized by the warrant, but the discovery must be made in the course of searching for the things that areauthorized by the warrant. This is again consonant with the first requirement of the plain view doctrine: namely, the officer mustlawfully be in the position from which he or she discovers the evidence that is plainly in view. 205 A search warrant permits the police to enter a place to search for the things authorized by the warrant. The search must beconducted in a manner consistent with the things authorized.

For example, if the warrant only authorized the police to search for a 51"television set, it would not be reconcilable for the police to search the drawers of a desk. If they did and found a quantity of drugs, s.489(1) of the Code would have no application because the television could not have been secreted in a desk drawer. 206 To permit a more extensive search than that necessary to search for the things authorized by the warrant would be inconsistentwith the purpose of s. 8 of the Charter and the principles articulated in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R.145, 14 C.C.C. (3d) 97.

Otherwise, once in the place to be searched, the police could search anywhere and for anything. This wouldresult in a very significant intrusion into the privacy interests of the occupants and permit the police to engage in a "fishing expedition" tosee what evidence they might find relating to any offence, committed at any time, by anyone, without pre-authorization and withoutestablishing reasonable grounds to do so. [42] Smart J. went on to consider the question of whether

section 489 only applies when the police inadvertently find evidence, orwhether it is also applicable if the police thought in advance they might find certain evidence: 207 The question still remains, however, of whether s. 489 of the Code only applies when the police inadvertently find the evidence orcontraband.

In other words, if the officer thought he or she might find the contraband or evidence in advance of discovering it, does thesection still permit its seizure? 208 In Daigle and Yue the British Columbia Court of Appeal held that a search did not become "unreasonable" because the police alsoanticipated or expected to find evidence of other offences not identified in the warrant.

The Court made this clear at para. 5 of Yue: • I add to what the trial judge has said by referring to the submission made in the respondent's factum that the lawful search for the itemslisted was not converted into an unreasonable search simply because the officers expected or hoped that counterfeiting and goodsobtained through credit card fraud might be found as well as those items listed. The authority for that proposition is R. v. Annett (1984), (ON CA), 6 O.A.C. 302; (SCC), 17 C.C.C. (3d) 332 (C.A.). I agree with this submission. [43] Smart J. concluded: 209

Section 489 of the Code is not confined to "inadvertent" discovery of other evidence. The police may seize things not authorizedby the warrant when they are found during a search for the things that are authorized. This is so even though the police considered beforethe search that additional things may be found. 210 While s. 489 of the Code enhances efficient law enforcement, it does create the potential for abuse if the

section is misused. Asearch warrant must not be used as a "Trojan Horse" to enter a place to search for things not disclosed in the ITO. In other words, theprimary purpose of the warrant must be to search for the things that are authorized by the warrant, not to search for things that are not. 211 This view reflects what was said by Salhany J. in R. v. Warren, [1990] O.J. No. 2604 (Ct. J. (Gen. Div.)) at p. 5:

• In my view, a seizure conducted in the exercise of

section 487 cannot be attacked as being an unreasonable search so long as the dominant purpose of the search is for those articles listed in the search warrant and the ambit of the search is within that portion of the premises searched [where] the articles listed might reasonably be found. It is also consistent with what was decided in R. v. Lam , 2004 BCSC 1799 . 212 If the police do not have reasonable grounds to believe that things will be found that will afford evidence of the offences listed in the warrant, the police will not be granted a warrant to search for those things.

If they find such things and seize them pursuant to s. 489 of the Code , they will have to demonstrate at trial that they had reasonable grounds for doing so if the Crown seeks to introduce them into evidence. Whether the police had the required grounds can be challenged by cross-examination and the introduction of other evidence. The result is that while the police need not demonstrate the requisite grounds before seizure, they may be required to after seizure; and when they are, those grounds can be thoroughly challenged by the accused. 213 Section 489(1) is not merely a codification of the plain view doctrine.

It permits the police to seize things not authorized by the warrant without obtaining a second warrant, even when the police suspect that those things may be found. [ 44 ] Here, the search warrant authorized a search for marijuana, marijuana plants, and documents bearing an address of 11900 Greystokes Road, Kelowna B.C. Under

section 489 of the Criminal Code , the police were entitled to seize evidence not authorized by the warrant provided they have the reasonable grounds to do so. In this case the search was carried out in a manner consistent with the things authorized, namely a search for marijuana, marijuana plants and documents with a certain address on them. The search warrant was not used as “Trojan Horse” to enter the property to search for things not disclosed in the ITO.

Constable Zuccollo testified with respect to his belief as to why he seized the documents with an address different than that of the subject property - namely they were important documents and as such, were the type of documents one would have with them in their residence. These documents had potential relevance to the investigation of the alleged offence.

Other documents such as the calendar, the feeding schedule, the High Times magazine reasonably could afford evidence of the offence of production of a controlled substance. [ 45 ] I do not find that the police conducted an “overseizure” of items they were not authorized to seize. I find the search of the residence and shop was reasonable and the evidence seized is admissible. _________________________________ The Honourable Judge E.M. Burdett