R. v. Mitchell Date:, 2013 BCPC 214

Citation: R. v. Mitchell Date: 20130626 2013 BCPC 0214 File No: 76357 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT RALPH MITCHELL REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE W.W. KLINGER Counsel for the Crown: Clarke Burnett Counsel for the Defendant: Stanley Tessmer Place of Hearing: Kelowna , B.C. Dates of Hearing: May 13 and 14, 2013

Date of Judgment: June 26, 2013 [ 1 ] The accused is before the court in respect of an information charging him as follows: Count 1 : Robert Ralph Mitchell and Tina Marie Potter, on or about the 2 nd day of February, 2012, at or near the City of Kelowna, in the Province of British Columbia, 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.

Count 2 : Robert Ralph Mitchell and Tina Marie Potter, on or about the 2 nd day of February, 2012, at or near the City of Kelowna, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Cannabis (Resin) for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Count 3 : Robert Ralph Mitchell and Tina Marie Potter, on or about the 2 nd day of February, 2012, at or near the City of Kelowna, in the Province of British Columbia, did unlawfully produce a controlled substance, to wit: Cannabis (marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act.

Count 4 : Robert Ralph Mitchell and Tina Marie Potter, on or about the 2 nd day of February, 2012, at or near Kelowna, in the Province of British Columbia, did fraudulently abstract, consume, use or cause to be diverted electricity, the property of Fortis BC, of a value not exceeding five thousand ($5,000.00) dollars and did thereby commit theft, contrary to Section 326(1) (

a) of the Criminal Code . [ 2 ] Proceedings against Tina Marie Potter have been stayed. THE EVIDENCE [ 3 ] On September 9, 2011, the Kelowna RCMP Detachment received an anonymous tip to the effect that the accused was growing marihuana at a residence on Spencer Road. [ 4 ] On November 7, 2011, Constable Joy viewed Fortis electrical records relating to the address in question, namely, 6442 Spencer Road, Kelowna, B.C.

He testified that those records revealed inordinately low electrical consumption. [ 5 ] On February 1, 2012, Constable Joy and Constable Dyck walked past the front of 6442 Spencer Road and both stated that they could smell the odour of vegetative marihuana coming from that residence. They had not consulted any City of Kelowna or Regional District maps to determine whether the residence was in fact located in the City of Kelowna. Signs are in place along roadways leading to the residence, indicating Kelowna city limits.

Those signs would inform anyone who looked at them that the property on Spencer Road was beyond the city limits of Kelowna. The constables stated that they did not notice those signs. Constable Joy agreed that he knew that it was important to be accurate in describing the location of the property for Search Warrant purposes. He stated that he did not know where the boundaries of Kelowna were located. [ 6 ] Constable Joy testified that a motor vehicle, registered to the accused, was at the residence; however the address of the accused on the motor vehicle registration was not 6442 Spencer Road, Kelowna.

Constable Joy had not ascertained the legal description of the accused’s property prior to obtaining the search warrant and had made no effort to determine the property boundaries. He and Constable Dyck went to the rear of the property and stood beyond a fence which was located at the perimeter of what appeared to be a garden area. Constable Joy assumed that the fence marked the property line and that they were on public land. The evidence establishes that he and Constable Dyck were then in fact on the accused’s property and not on public land.

Constable Dyck conducted a FLIR examination of the property and found a heat anomaly in the basement area all along the east side of the residence. Constable Dyck told Constable Joy that the heat signature in the basement area was consistent with a marihuana grow operation. Constable Joy formed the opinion that there was in fact a marihuana grow operation in that location and also speculated that there may be an illegal electrical bypass to the residence. He stated that he came to that conclusion based on his knowledge that marihuana grow operations require a large amount of electrical power.

There did not appear to be any other source of power to the residence and based on the inordinately low power usage which he had previously noted, he believed that an electrical bypass was being used by the operators of the marihuana grow operation. [ 7 ] On February 2, 2012, Constable Joy obtained a search warrant for the premises described as 6442 Spencer Road, Kelowna, B.C. The evidence establishes that in fact the premises are not within the city limits of Kelowna. At approximately 7:13 p.m., he attended that residence along with Constables Dyck, Vance and Elliott and Corporal Robideau.

Constable Joy went to the front door of the residence and knocked loudly, identifying himself as a police officer and stating that he had a search warrant. The accused came to the door at approximately 7:14 pm. The accused was clothed only in a bathrobe. On direct examination Constable Joy stated that he told the accused that he had a search warrant and that he was detaining the accused for production of a controlled substance. Constable Joy stated that he showed the search warrant to the accused and after he had handcuffed the accused he put the search warrant in the accused’s bathrobe pocket.

Constable Joy asked the accused to identify himself and obtained identification particulars. He also asked the accused if there were any other persons in the residence and received an affirmative reply. Subsequently, Constable Joy was advised by other police officers that a marihuana grow operation was found in the residence. He then told the accused he was under arrest for production of a controlled substance and at 7:20 p.m. gave him the usual Charter and police warning. The accused told police that he wished to speak to a legal aid lawyer.

The other occupant of the house, Miss Potter, was then brought to Constable Joy by Constable

Dyck who then arrested her as well. When the police officers determined that the premises were secure, in that there were no other occupants of the residence, a search was conducted and police seized eighty-four marihuana plants along with seventy-eight clones as well as quantities of ground marihuana mash, jars of marihuana oil, and 0.36 kilograms of marihuana bud. Police seized from a suit jacket pocket in the master bedroom $900 in fifty dollar bills and $1,100 in 20 dollar bills. The police also seized two rifles, a shotgun and a pellet gun from the residence.

An electrical by-pass was located behind a wall panel located behind a shelving unit in the residence. [ 8 ] The defence has admitted that the substance seized was in fact cannabis resin and cannabis marihuana. [ 9 ] At 7:35 p.m., Constable Joy left the residence transporting the accused and Miss Potter to Kelowna RCMP detachment cells, arriving there at approximately 8:00 p.m. The accused was taken first to the “cabs” room to be photographed, then to a room where he was searched and at 8:22 p.m. he was taken to the telephone room where he then spoke to legal aid defence counsel from 8:26 p.m. to 8:30 p.m.

At 8:33 p.m. he was lodged in cells. [ 10 ] Constable Joy stated that the accused was not permitted to use a cell phone at the scene because he could not be provided with privacy while he spoke to legal counsel and in addition, the constable did not have the telephone number for legal aid with him at that point. [ 11 ] Constable Joy returned to the residence and assisted in the search which was then under way by the other officers. He left the residence at 10:50 p.m. returning to the detachment where he released the accused at 1:30 a.m. February 3 rd on a promise to appear.

Constable Joy stated that he believed that at the detachment he showed and then gave a copy of the search warrant to the accused. On cross examination he stated that he was not absolutely sure that he put a copy of the search warrant into the pocket of the accused’s robe at the residence. Constable Joy made no notes relating to the showing of the search warrant to the accused at the residence or of putting the search warrant into the accused’s pocket at that time.

Constable Joy testified that following the accused’s arrest at the residence and after he advised him of his Charter rights, the accused did not request his cell phone. I accept Constable Joy’s evidence that the accused did not ask for his cell phone. During the search of the residence an employee of Keldon Electric attended in connection with the electrical bypass that was discovered in the premises, and at some point Kelowna City by-law officers also attended. [ 12 ] The accused testified on the voir dire .

He stated that he was the owner of the residence located at 6442 Spencer Road and that it is located outside of the city limits of Kelowna in the Regional District of Central Okanagan. He conceded that on February 2 nd , 2012, he heard loud pounding on the door of his residence and attended downstairs. Immediately after he opened the door his hand was taken by Constable Joy and he was pulled outside where Constable Joy read some rights to him and placed him in handcuffs. He then testified that since he was in bare feet he asked if they could go back inside the residence.

He stated that he wished to speak to a lawyer. He was subsequently taken upstairs where he clothed himself. His evidence was that he asked if he could take a cell phone with him and that this was refused. I accept Constable Joy’s evidence that that conversation did not take place. The accused testified that he was then taken to the police vehicle and later transported to cells.

The accused’s evidence is that he was not given a copy of the search warrant until later at the detachment. [ 13 ] Based on all of the evidence I find that Constable Joy did not show the search warrant to the accused prior to the accused’s attendance in the detachment and that the accused was not given a copy of the search warrant until he was released from custody. I have arrived at this conclusion based upon the following. On direct examination Constable Joy testified that he placed a copy of the search warrant in the accused’s bathrobe pocket.

On cross-examination he stated that he was not absolutely sure that he had done that. The accused testified that Constable Joy did not do that, and that the search warrant was not shown or given to him until he was released at the detachment. My concern with Constable Joy’s evidence is that if he is wrong, as he concedes that he might be, about putting the search warrant in the accused’s pocket, I can have no assurance that he is correct about showing the search warrant to the accused. ISSUES ON THE VOIR DIRE 1.

Was the search of 6442 Spencer Road a Warrantless Search? [ 14 ] The accused argues that the search of his residence at 6442 Spencer Road was not authorized and constituted a warrantless search in that the search warrant authorized a search of 6442 Spencer Road, Kelowna, B.C. when in fact the property in question was not located in the City of Kelowna, being some distance outside Kelowna city limits. Defence argues that since the search warrant authorized a search of an address different than set out in the search warrant, the search conducted at the address in question was unauthorized.

Defence argues that the accused’s residence at 6442 Spencer Road which was searched by the police is entirely different from 6442 Spencer Road, Kelowna, B.C. There is no evidence that there is not in fact in existence a civic address in Kelowna known as 6442 Spencer Road, Kelowna, B.C.

The accused argues since this property was not described in a way so as to differentiate it from property located within the City of Kelowna, the search of the accused’s residence was not authorized by the search warrant and accordingly, the search conducted was warrantless. [ 15 ] The Crown argues that the address on the warrant was a reasonable description of the property.

They argue that it corresponded with the information provided in the Crimestoppers tip, Fortis BC electrical records for the property, and various documents seized from the accused’s residence as well as BC Land Title Office records and real estate property listing forms. The Crown further argues that even if the address was in error on the face of the warrant, such an error does not cause the warrant to become invalid or result in a breach of the accused’s

Section 8 Charter rights. The Crown argues that an error with respect to an address on a search warrant is not fatal provided that the warrant, which includes the information to obtain, sufficiently describes the property to be searched such that there is no reasonable likelihood of the wrong property being searched. 2. Did police trespass on the accused’s property and thereby violate his

Section 8 Charter rights? [ 16 ] Defence argues that in conducting the FLIR examination of the accused’s residence, the police trespassed on the accused’s property and so violated the accused’s

Section 8 Charter rights. The accused argues that the area in which the police officer stood while conducting their FLIR examination was an area which he maintained by periodically mowing it and it was an area in which trespassers

had not been observed previously. The accused argues that although the area in question was not gated, the accused did have a reasonable expectation to privacy in regard to that portion of his property. He testified that he used that portion of the property for recreational purposes, namely sun tanning. Defence further argues that the police made no attempt whatsoever to locate the property lines of the accused’s property and had no reasonable basis to believe that they were not in fact trespassing on his property.

He argues that they were not entitled to assume based on a hedge and fence that the property in question was not his property. [ 17 ] In response to this argument, the Crown concedes that Cst. Dyck and Cst. Joy did enter on to the accused’s property during the course of their investigation, however, the Crown argues that the accused’s

Section 8 Charter rights were not affected by those actions since the accused did not have a reasonable expectation of privacy over that portion of the property. 3. Were the accused’s

Section 9 Charter rights violated by an arrest made without reasonable and probable grounds? [ 18 ] The accused argues that he was arrested immediately upon meeting Cst. Joy at the door of the residence at a time when Cst. Joy would not have had reasonable grounds to believe that the accused had committed a criminal offence and therefore the accused’s

Section 9 Charter rights were violated. [ 19 ] The Crown argues that the police officers had reasonable grounds to believe that a marihuana grow operation was present at the residence and in addition that the officers had reasonable and probable grounds to believe that the accused was involved with the grow operation and accordingly had the necessary grounds to detain and then arrest the accused for the commission of the offence of production of marihuana. 4. Did the police fail to serve a copy of the search warrant as required by

Section 487.1(7) of the Criminal Code and did they fail to properly prepare a Return to the Justice pursuant to

Section 481.1(9) and so breach the accused’s

Section 8 Charter rights? [ 20 ] The accused argues that the police did fail to serve the search warrant on him as required pursuant to

Section 487.1(7) of the Criminal Code . He also argues that the police failed to properly prepare a Return to Justice pursuant to

Section 481.1(9) of the Criminal Code. With respect to the failure of the police to serve the accused with the facsimile of the search warrant, defence argues that the officer was aware of his duty to serve the search warrant but nevertheless failed to do so. The accused argues that this is particularly serious in the case at bar since had the accused been properly served with the search warrant, he could have objected to the search on the basis that the location of the property was mis-described in the warrant.

With respect to the failure of the police to properly complete the form 5.2 Return to Justice following the search, defence argues that had the police officer properly advised the justice of the peace that a number of items not authorized by the warrant and not evidence in relation to any crime were seized, the justice would not have authorized their continuing detention. [ 21 ] The Crown argues that Cst.

Joy placed a copy of the search warrant in the accused’s bathrobe at about the time of his arrest and also gave him a copy of the search warrant when he was released from the RCMP detachment. [ 22 ] The Crown also argues that in the event that there was a failure to provide a copy of the search warrant to the accused upon his arrest, this should not result in a finding that the accused’s

Section 8 Charter rights were breached. The Crown argues that the failure to show the accused the search warrant at the residence was not a serious breach. [ 23 ] With respect to the argument that the police failed to properly prepare a Return to Justice pursuant to

Section 481.1(9) of the Criminal Code , the Crown concedes that Cst. Vance failed to articulate in his report to the justice that additional items were seized pursuant to

Section 489 of the Criminal Code, however, Cst. Vance’s failure to do so was a mere oversight and not intentional with a view to mislead the justice. Furthermore the Crown argues that there is no evidence that the 5.2 form was not filed with the court registry within the time limits prescribed by the Criminal Code. The Crown further submits that even if the court finds that the accused has established that there was a failure to file the 5.2 form with the court registry within the time limits required by the Code, this was merely a technical error and should not result in a finding that the accused’s

Section 8 Charter rights were infringed. 5. Was there an unlawful search for an electrical by-pass? [ 24 ] The defence argues that the search warrant authorized a search for evidence of a marihuana grow and it did not authorize a search for evidence regarding a theft of electricity. The accused argues that the electrical bypass was not in plain view, rather, it was behind a book shelf which was screwed to the wall concealing the cut in the wall which led to the electrical bypass.

Hence the accused argues that the plain view doctrine would not permit the search for the electrical bypass since it was not visible and an exploratory search to find evidence of a bypass was not permitted by the plain view doctrine. [ 25 ] The Crown argues that the actions of Cst. Dyck in locating the electrical bypass were lawful. He argues that Cst.

Dyck’s belief that an electrical bypass was present was reasonable based on the FLIR examination and that upon the search of the residence, he observed a cut out immediately below the area where the meter on the exterior of the residence was located and properly suspected that he would find a bypass. The Crown argues that the cut out below the interior electrical panel was sufficient to allow Cst. Dyck to conclude that he was observing in plain view an offence, namely, the theft of electricity.

Crown argues that had the cut out not been present, then the presence of the bypass would not have been in plain view. 6. Was there “over seizure” resulting in a violation of the accused’s

Section 8 Charter rights? [ 26 ] The defence also argues that there was over seizure in that certain firearms and a pellet gun were seized by police when there was no evidence that they were in any way connected to any offence. [ 27 ] The Crown argues that

Section 489 of the Criminal Code authorizes police to seize in addition to things mentioned in the warrant, (

a) anything that the person believes on reasonable grounds has been obtained by the commission of an offence (

b) has been used in the commission of an offence or (

c) will afford evidence in respect of an offence. The Crown argues that since none of the firearms seized were stored in a secure room or container or rendered inoperable by removing components and since two of the firearms were found without installed trigger locking devices, the police were authorized to seize them in respect of an offence under Section

86(2) of the Criminal Code and

Section 117(

h) of the Firearms Act . 7. Were the accused’s

Section 10 Charter Rights violated? [ 28 ] Defence argues that Cst. Joy failed to provide the proper informational component to the accused immediately upon his detention. Defence argues that he was questioned as to his name, date of birth, phone number and whether there were other people on the premises before the proper informational component of

Section 10 of the Charter of Rights and Freedoms was complied with. Defence further argues that Cst. Joy should have provided the accused with access to counsel immediately. [ 29 ] The Crown argues that the accused’s

Section 10(

b) Charter rights were not violated, rather, that they were respected throughout the course of this investigation. The Crown argues that police officers are entitled to ask persons for their name and what they are doing at the scene of an investigation without triggering the accused’s

Section 10(

b) Charter rights. The Crown argues that in asking the accused questions relating to his identity, date of birth and telephone number, and whether there were others in the residence, Cst. Joy was not eliciting evidence from the accused. [ 30 ] The Crown further argues that there was a very short period of time from the accused’s detention to the residence being cleared by police and the discovery of the grow operation and that police were entitled to ensure that the residence was properly cleared before attending to the accused’s 10(

b) Charter rights. [ 31 ] With respect to the defence position that the accused should have been permitted to contact counsel by means of the officer’s cell phone at the scene, the Crown takes a position that the police were not required to provide him access to counsel using a cellular phone and that it was reasonable to wait until the accused had been returned to the detachment. The Crown argues that this was not a case where Cst.

Joy intended to limit the accused access to counsel, rather it was his intention to provide the accused with access to counsel at the earliest opportunity which he considered to be at the police detachment. Crown argues that Cst.

Joy’s reasoning was intended to protect the accused’s Charter right to speak to counsel in privacy and in those circumstances, there was no breach of the accused’s Charter rights. [ 32 ] With respect to the defence argument that the accused should have been provided access to counsel immediately upon arriving at the detachment rather than waiting until after the booking in and searching procedures were completed, Crown argues that this did not constitute a breach of the accused’s

Section 10(

b) Charter rights. Crown argues that Cst. Joy was obligated to refrain from eliciting evidence during that period of time and that taking booking in information from the accused did not violate that duty because those statements are not an attempt to obtain evidence from the accused. 8. Did police violate the accused’s

Section 8 Charter Rights by permitting persons other than police officers on the property during the execution of the search warrant? [ 33 ] Defence argues that by allowing persons other than police officers on to the property during the execution of the search warrant, the accused’s

Section 8 Charter rights were breached. The accused alleges that Cst. Dyck or other police called both Kelowna City bylaw officers and Keldon electricians to attend the premises. Defence argues that since the bylaw officers and Keldon electricians were not peace officers, they had no authority to attend the premises.

In addition, since the search warrant did not authorize a search for an electrical bypass, the accused submits that it was not open for the police to call Keldon Electric to investigate and prepare a report concerning the bypass. [ 34 ] Regarding the attendance of Kelowna City bylaw officers, the Crown argues that the accused has simply failed to prove any breach of his Charter rights.

The Crown argues that the accused has not produced any evidence or called any representative of the City of Kelowna to determine what authority they relied on to enter the property or what they did while they were on the property and under those circumstances, it is impossible to determine whether a Charter breach arose. [ 35 ] With respect to the attendance of the electrician, the Crown argues that the police were entitled to enlist the assistance of an electrician to address safety concerns with respect to the grow operation and the hydro bypass that were found at the property.

The Crown argues that the evidence does not support a finding that Cst. Dyck’s sole purpose in calling an electrician was so that the electrician could prepare a report. The Crown’s position is that the police do have authority to retain such assistance as may be reasonable to ensure the same execution of the search warrant. ANALYSIS 1. Was the search of 6442 Spencer Road a Warrantless Search? [ 36 ] It is clear that the area in which the residence is located is not within the City of Kelowna.

It is in fact, located in the Ellison area which is northeast of the City of Kelowna and within the Central Okanagan Regional District. There is no evidence as to whether there is an address of 6442 Spencer Road in the City of Kelowna, Province of British Columbia. The city limits of the City of Kelowna are well marked on both roadways leading to the area in question yet the police officers conceded that they did not see the signs and were unaware that the area was in fact outside the City of Kelowna. In R. v.

Kenneth James Wickes , a decision of this Court rendered April 27, 2006, this Court dealt with a residence on Anderson Road, which is located in the same general area as Spencer Road, northeast of the City of Kelowna. The evidence in that trial also consisted of several police officers testifying that notwithstanding the fact that they passed the same city limit signs on multiple occasions they did not see them and did not note that the Anderson Road was outside of the City of Kelowna. As indicated above, the city limit signs are there to be seen.

Those signs would have been passed by Constable Joy and Dyck when they went to surveil the property as well as when they went to execute the search warrant. If the officers did not in fact observe the signs they were at a minimum careless as to the existence of the signs. I find that the officers either knew or ought to have known through simple observation that the premises in question were not located in the city of Kelowna. If the officers were in doubt as to where the property was located they could have easily checked a number of sources to determine the location of the property.

They chose not to. [ 37 ] I note that this is a not a case where the police have simply made a mistake as to the street address such as apartment number,

street number, or the failure to add an “A” to an address. Counsel have referenced a number of decisions including R. v. Charles (2010)2010 QCCQ 9178 , QJ No. 10824, R. v. Sparks

(2006) NLCA 6, and R. v. Semeniuk

(2005) BCSC 1922, wherein the courtfound that the errors did not amount to a breach of the accused’s

section 8 Charter rights. In R. v. Charles, (supra), the Quebec Courtlisted factors relevant to the

section 8 analysis as follows:

a) Whether there was carelessness by the affiant in identifying the premises to be searched;

b) Whether the affiant could have better described the location of the apartment in the house;

c) Whether the search warrant was nonetheless directed towards the residence intended and was executed with care;

d) Whether there was honesty to the evidence relied upon in obtaining the warrant and to the execution of the warrant;

e) Whether the officers exercised restraint in the execution of the warrant;

f) Whether the evidence was pre-existing and not created by the search;

g) Whether the search was conducted in a decent way; and

h) Whether the honest man on the street would say that not to admit the narcotics in all the circumstances would bring theadministration of justice into some level of disrepute. [38] In my view, there was carelessness bordering on wilful blindness by Constable Joy in identifying the premises to be searched. He did nothing apart from consulting a Google map to ascertain the location of the property and repeatedly ignored signs informing himwhere the city limits were located. He certainly could have described the location of the residence in a more accurate manner.

It is tritelaw that search warrants are place specific and it is necessary to describe the place both specifically and accurately. The search warrantin question authorized the search of the premise located in Kelowna, British Columbia. The police certainly intended to search theaccused’s residence but they obtained a search warrant authorizing them to search at another location, namely one in Kelowna, BritishColumbia. The search warrant specifically refers to offences taking place in Kelowna, British Columbia, and to the residence of RobertMitchell in Kelowna, British Columbia.

I conclude that this search warrant authorized a search of premises within Kelowna, BritishColumbia. It did not authorize the search of premises near Kelowna, British Columbia. Therefore the search that was conducted was awarrantless search. 2. Did police trespass on the accused’s property and thereby violate his

Section 8 Charter Rights? [39] Constables Joy and Dyck did trespass on the accused’s property when they did their surveillance and obtained the FLIRreadings. The issue is whether or not the accused had a reasonable expectation of privacy over that area of his property on which theconstables trespassed. The officers made their observations from a field which was separated from the accused’s residence by a fenceand a row of shrubs. In fact the accused’s property extended some distance beyond that area. Prior to entering the area in question thepolice did nothing to ascertain where the property lines were.

They simply assumed because there were no fences or gates in the area inquestion, the field was simply a public area. In my view there was no reasonable basis for the officers to hold that opinion. There wasno evidence that the public traversed that area. There is some evidence from the accused that he maintained that area by cutting grassfrom time to time and that he also used it for recreational purposes, namely sun bathing. Crown counsel has referred the Court to R. v.Edwards (1996) (SCC), 1 SCR 128, at para. 45.

The Supreme Court stated that a reasonable expectation of privacy isto be determined on the basis of the totality of the circumstances. The Court listed then some factors to be considered when assessingwhether the accused had a reasonable expectation of privacy. The factors listed are: 1. Presence at the time of the search; 2. Possession or control of the property or place searched; 3. Ownership of the property or place; 4. Historical use of the property or item; 5. The ability to regulate access including the right to admit or exclude others from the place; 6.

The existence of the subjective expectation of privacy; and 7. The objective reasonableness of the expectation. [40] Mr. Mitchell lived on the property in question. He was present on his property at the time of the search. In my view he neednot be present on all portions of his property at all times, since that of course would be impossible. This is not a case of a very largeproperty. It is clear that he had possession and control of the property and exercised use of it. He was the owner of the property. Thereis no evidence as to the historical use of the property.

The accused as owner and occupant of the property had the ability and the legalright to regulate access including the right to admit or exclude others from his property. There is no evidence that members of the publicregularly trespassed on that property or indeed that anyone other than the owners of the property in that area had access to their property. The absence of a gate or fence surrounding the entire property does not imply an invitation to trespass. In my view the accused had asubjective expectation of privacy. Under all of the circumstances, viewed objectively, that expectation was reasonable.

Accordingly, inusing the FLIR technology on the accused’s property, the police were violating the accused’s

section 8 Charter rights. 3. Were the accused’s

Section 9 Charter rights violated by an arrest made without reasonable and probable grounds? [41] In my view the evidence does not disclose a breach of the accused’s s. 9 Charter rights. The accused does not deny that thepolice had reasonable and probable grounds to believe that a marihuana grow was located in his residence. Defence argues that at the

point when Constable Joy arrested the accused he did not have reasonable and probable grounds to believe that the accused was involvedwith that marihuana grow. I accept the evidence of Constable Joy that he initially detained the accused and arrested upon receivinginformation from officers conducting the search that a grow operation had been discovered. Other officers testified with respect to thearrest of the accused but they were not directly involved in the dealings between Constable Joy and the accused.

I agree with thesubmission of Crown counsel that Constable Joy had reasonable and probable grounds to believe that the accused was involved in thegrow operation at the point where the accused answered the door upon the knock of the police officer.

Constable Joy was in possessionof information regarding that fact through a tip; had accessed electrical subscriber information for the residence showing that the accusedwas the subscriber; had observed the vehicle registered to the accused at the residence the day previous; the accused responded to theofficer’s knock at the door in a bathrobe at a time when the smell of marihuana was present in the residence that he occupied.

In myview all of the circumstances indicate that it was both subjectively and objectively reasonable for Constable Joy to believe that theaccused had committed the indictable offence of possession of or production of marihuana. 4. Did the police fail to serve a copy of the search warrant as required by

Section 487.1(7) of the Criminal Code and did they failto properly prepare a Return to Justice pursuant to

Section 481.1(9) and so breach the accused’s

Section 8 Charter rights? [42]

Section 487.1(7) states as follows:

(7) A peace officer who executes a warrant issued by telephone or other means of telecommunication, other than a warrant issuedpursuant to subsection 256(1), shall, before entering the place or premises to be searched or as soon as practicable thereafter, give afacsimile of the warrant to any person present and ostensibly in control of the place or premises. [43] As indicated above, I have found that Constable Joy did not either show or provide a copy of the search warrant to the accusedin compliance with

section 487.1(7). Providing a copy to him upon his release some hours after his arrest does not constitute compliancewith

Section 487.1(7). The accused was thus left in a position where he was unable to lawfully object to the incursion by the state intohis residence on the basis that the warrant did not comply with the provisions of the Criminal Code for any one of a number of reasons. It is important to note that the obligation on the police to give a facsimile of the warrant to the accused is not by statute limited to thoseoccasions where the accused asks for a copy of the warrant. Constable Joy may very well have had a copy of the warrant with him butunless he produces it to the accused, the accused has no way of ensuring that in fact a search warrant exists or that it applies properly tohis residence. [44]

Section 29.1 of Criminal Code reads as follows: 29.

(1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce itwhen requested to do so. [45] As noted by MacDonald J.A. in R. v. B (J.E.) (1989) (NS CA), 52 CCC 3rd 224, at page 232: A search by police officers under a search warrant of private premises is a derogation from common law rights of ownership. Thenecessary formalities in the execution of the warrant must therefore be strictly observed. [46] In R. v. Bohn

(2000) BCJ 867, at para. 31, Ryan J.A. speaking for the Court stated as follows: [31] The authors of Search & Seizure Law in Canada say this about the purpose of s. 29(1), at p. 17 - 5: The reason for the requirement that an officer executing the warrant have it available for production, is to allow the occupant of thesearched premises to know: (1) why the search is being carried out, so as to enable the occupant to properly assess his or her legalposition; and (2) that there is, at least, a colour of authority for the search and that forcible resistance is improper.

This last rationale alsoplays a role in the second procedural requirement for a valid search, that the peace officers announce themselves before entering thepremises to be searched. [47] In my view the same rationale relates to the obligation of the police to comply with

section 487.1(7). [48] The Crown argues that the failure to show and give to the search warrant to the accused was not a serious breach. I disagree. Inmy view the failure to comply with

section 487.1(7) constituted, in these circumstances, a serious breach of the accused’s

section 8Charter rights. [49] With respect to the return to justice pursuant to

section 487.1(9) of the Criminal Code, I am of the view that Constable Vance’sfailure to include all items seized was a mere oversight and not an intentional attempt to mislead the justice. In addition, the evidencedoes not establish that there was a failure to file the 5.2 Form with the court registry within the time limits required by the Code. 5. Was there an unlawful search for an electrical bypass? [50] There is no doubt that Constable Dyck believed that there was an electrical bypass in the premises based on his FLIRexamination.

The police then obtained the search warrant to search for the offences of production of a controlled substance andpossession for the purpose of trafficking. The warrant did not authorize a search for evidence relating to the theft of electricity. Theevidence is that directly under the wall area on which the premises’ electrical panel was located, a book shelf was screwed to the wall

concealing a cut in the gyproc. Constable Dyck found the electrical bypass behind the gyproc. I am satisfied that the electrical bypasswas discovered when Constable Dyck unscrewed the book shelf thus observing the cut on the wall which led to the bypass. In R. v.Jones (2011) 2011 ONCA 632 , O.J. 4388, Blair J.A. speaking for the Ontario Court of Appeal stated as follows, at para. 56: The plain view doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfullyauthorized search with respect to one crime and evidence of another crime falls into plain view.

Resort to this common law power issubject to the following restraints however: 1. The officer must be lawfully in the place where the search is being conducted (lawfully positioned in the language of the authorities); 2. The nature of the evidence must be immediately apparent as constituting a criminal offence; 3. The evidence must have been discovered inadvertently; 4. The plain view doctrine confers a seizure power not a search power. It is limited to those items that are visible and does not permitan exploratory search to find other evidence of other crimes. [51] In addition.

Section 489 of the Criminal Code states: 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. [52] It is important to note that

section 489 refers to the seizure of items. It does not refer to the search for items, and neither doesthe “plain view doctrine”. In R. v. Sipes, 2011 BCSC 1763 , 2011 B.C.S.C. 1763, at para. 191, Smart, J. stated as follows: 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.

At para. 206, Smart, J. states as follows: To permit a more extensive search than that necessary to search for the things authorized by the warrant would be inconsistent with thepurpose of s. 8 of the Charter and the principles articulated in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, 14C.C.C. (3d) 97. Otherwise, once in the place to be searched, the police could search anywhere and for anything.

This would result in avery significant intrusion into the privacy interests of the occupants and permit the police to engage in a “fishing expedition” to see whatevidence they might find relating to any offence, committed at any time, by anyone, without pre-authorization and without establishingreasonable grounds to do so. At para. 209, Smart, J. states:

Section 489 of the Code is not confined to “inadvertent” discovery of other evidence. The police may seize things not authorized by thewarrant when they are found during a search for the things that are authorized. This is so even though the police considered before thesearch that additional things may be found. (my emphasis) Finally, at para. 210, Smart J. deals with the potential for abuse if s. 489 is misused by police. While s. 489 of the Code enhances efficient law enforcement, it does create the potential for abuse if the

section is misused. A searchwarrant must not be used as a “Trojan Horse” to enter a place to search for things not disclosed in the ITO. In other words, the primary

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. [53] Considering the conditions precedent referred to in R. v. Jones (supra) it is clear that Constable Dyck was lawfully in the placewhere the search was being conducted. The discovery of an electrical bypass would be immediately recognized as evidence of criminalactivity. However this evidence was not discovered inadvertently, rather it was as a result of a deliberate search by Constable Dyck.

Thecut in the drywall leading to the electrical bypass was not visible until the book shelf which obscured it was unscrewed from the wall. Itis clear that Constable Dyck was conducting an exploratory search to find the evidence of the crime of theft of electricity. This searchwas not authorized by the search warrant. Accordingly, the search for the electrical bypass was conducted in breach of the accused’ssection 8 Charter rights. 6. Was there “over seizure” resulting in a violation of the accused’s

Section 8 Charter Rights? [54] With respect to the over seizure alleged by the accused, I am not satisfied that a breach of the accused’s

section 8 Charter rightshad been established. Given the facts of this case, I agree with Crown counsel’s submission that the police were entitled to seize thefirearms as evidence in respect of offences under

section 86 of the Criminal Code and

section 117(

h) of the Firearms Act. 7. Were the accused’s

Section 10 Charter Rights violated? [55] While the accused argues that his

section 10(

b) rights were violated, the evidence does not support such a finding. The accusedhas failed to establish on a balance of probabilities that his

section 10(

b) rights were violated. Constable Joy, upon the accused’sdetention, told him that he had the right to legal counsel and was given the police warning. Upon his arrest, Cst. Joy read from theappropriate card outlining in detail those rights. Under all of the circumstances it was reasonable to provide access to counsel at thedetachment. The accused could not properly be given privacy at the scene or in the police officer’s vehicle. In this regard I agree withthe reasoning with Judge Burdett in R. v. Tierney

(2012) BCPC 341, para. 52: Here I note that Mr. Tierney was handcuffed before being placed in the back of the police car. It would have been impossible for him touse the officer’s cell phone unless the handcuffs were removed and the officer’s safety compromised. Mr. Tierney did not ask to use theofficer’s cell phone. The residence and the out buildings were still being searched. It is reasonable that a cell phone not be provided to asuspect at the scene in the middle of an investigation.

Calls could be made to others still on the property warning them of the policepresence or calls could be made to other criminal associates warning them of the drug bust. To ensure that improper calls were not madethe police would need to monitor the call closely which would not afford Mr. Tierney privacy. I note that Mr. Tierney was notquestioned after he received his

section 10 rights and before he was given access to counsel. I conclude there is no requirement thatofficers provide access to available cell phones to accused persons at the scene of an investigation provided there is no excessive delay inproviding access to counsel. There was no excessive delay in this case even taking into account the booking- in and search times at thedetachment. Mr. Tierney’s

section 10 rights were not infringed. [56] Similarly, in the case at bar, Mr. Mitchell did not ask to use Constable Joy’s cell phone and there was no excessive delay inproviding access to counsel. I am simply not satisfied that in these circumstances where transport to the detachment was relativelyprompt and the booking-in and search procedures were not lengthy, that the accused’s

section 10(

b) Charter rights were infringed. 8. Did police violate the accused’s

Section 8 Charter Rights by permitting persons other than police officers on the propertyduring the execution of the search warrant? [57] It is conceded by the Crown that one of the officers must have notified bylaw officers to attend. They did so on the assumptionthat the property was located within the City of Kelowna when in fact it was not. However the evidence in respect of the attendance ofbylaw officers is vague. What is clear is that they did attend the property and posted a bylaw notice and a few days later the accused wasable to have the bylaw notices lifted.

There is no evidence that the bylaw officers assisted the police in any manner or that the policeassisted the bylaw officers in any manner. In my view this attendance does not in and of itself establish a

section 8 Charter breach. [58] The evidence is that the police contacted an electrician of the firm Keldon Electric to attend to deal with the marihuana growand electrical bypass which was discovered. I do not conclude from the evidence that this was done for the purpose of having theelectrician prepare a report. It was done in order to address safety concerns which could reasonably be present in respect of policesearching the premises which contained an unauthorized electrical bypass and marihuana grow operation.

It is notorious that electricalcomponents of marihuana grow operations and electrical bypasses create fire risks and safety hazards for investigating officers. Policeare not electricians and I agree with the comments of Dhillon J. in R. v. Wall

(2004) BCPC 21, at para. 106: As to the lack of a specific assistance order allowing for BC Hydro attendance on the property I accept that there is a general authority toretain such assistance as is reasonable in the save execution of the warrant. In coming to this conclusion I rely on the cases of R. v. Strachan (1988) (SCC), 46 CCC (3rd) 479, which permits the use of unnamed assistance in the search if properlysupervised. [59] In conclusion a breach of the accused’s

section 8 Charter rights has not been established. Section 24(2) Analysis Should the evidence obtained by police be excluded pursuant to section 24(2) of the Charter? [60] Section 24(2) states:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or deniedany rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [61] In R. v. Grant 2009 SCC 32 , [2009] 2 SCR 353, the Supreme Court of Canada considered the framework forexclusion. The Supreme Court held that in considering section 24(2) the court must have regard to the following: 1.

The seriousness of the Charter-infringing state conduct (admission may send the message that the justice system condones seriousstate conduct); 2. The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little); and 3.

Society’s interest in the adjudication of the case on its merits. [62] The task of the Court is to balance its assessments in respect of each of these factors in order to determine whether in thecircumstances of this particular case the admission of the evidence in the proceedings would bring the administration of justice intodisrepute. As stated by McLachlin, C.J. in Grant (supra), at para. 67: The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice.

The term “administration ofjustice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly,however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. [63] At paragraph 68, the Chief Justice states as follows: The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism.

But s.24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system,viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonableperson, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidencewould bring the administration of justice into disrepute. [64] At paragraph 69, the Chief Justice states: Section 24(2)’s focus is not only long-term, but prospective.

The fact of the Charter breach means damage has already been done to theadministration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach doesnot do further damage to the repute of the justice system. [65] At paragraph 70, the Chief Justice states: Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, butrather at systemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justicesystem. [66] At paragraph 71 in Grant (supra) the Chief Justice states as follows: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter-protected interestsof the accused (admission may send the message that individual rights count for little); and (3) society’s interest in the adjudication ofthe case on its merits. [67] With respect to the first factor, namely the seriousness of the conduct, the Chief Justice at paragraph 73 states as follows: The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be ahappy consequence.

The main concern is to preserve public confidence in the rule of law and its processes. [68] At paragraph 74, the Chief Justice states: State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained throughinadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the

spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect onthe public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [69] The Chief Justice goes on to state that extenuating circumstances such as the need to preserve evidence and good faith on thepart of the police will reduce the need for the Court to disassociate itself from the police conduct but that ignorance of Charter standardsmust not be rewarded or encouraged and negligence or wilful blindness can not be equated with good faith. [70] Regarding the factor of impact of the breach on the Charter protected interests of the accused, the Chief Justice at paragraph 76had this to say.

This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls foran evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of aCharter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [71] At paragraph 78, the Chief Justice states: Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly,human dignity.

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. [72] In respect of the third factor, namely society’s interest in the adjudication on the merits, the Chief Justice had this to say atparagraph 79: Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevant to thes. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are broughtto trial and dealt with according to the law”: R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20.

Thus the Courtsuggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence onthe repute of the administration of justice, but the impact of failing to admit the evidence. [73] At paragraph 83 the Chief Justice stated: The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. LikeDeschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense.

The admission of evidenceof questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the caseagainst the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of theadministration of justice where the remedy effectively guts the prosecution. [74] At para. 84, the Chief Justice considers the matter of the seriousness of the offence at issue and states as follows: In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways.

Failure toeffectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. [75] Finally, the Chief Justice in para. 86 stated as follows: In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck.Mathematical precision is obviously not possible. [76] In the case at bar the Court has found a number of Charter breaches.

The first breach relates to the mis-description of the placeto be searched on the warrant, resulting in a warrantless search. Applying R. v. Grant analysis to that Charter breach, it is my view that,were this the only Charter breach before the court, and considering the three Grant factors it would be my conclusion that the evidenceshould not be excluded pursuant to s. 24(2) of the Charter. As noted above, however, I am concerned with the wilful blindness of thepolice in repeatedly failing to observe the city limit signs and in failing to make diligent inquiries in respect of the location of theproperty.

Notwithstanding that however, the officers conducted the search pursuant to what they thought was a valid warrant andconducted the search basically appropriately, with the exception of the search for the electrical bypass. I would have concluded thatsociety’s interest in the adjudication of the matter on its merits, when considered in these particular circumstances, would not lead to theexclusion of the evidence.

[ 77 ] The second Charter breach relates to the trespass on the accused’s property by police conducting their FLIR examination. That breach was more serious in that the police completely neglected to take any steps to ensure that they did not trespass on the accused’s property. They believed that the accused’s property extended to the fence that separated the rest of the property from the accused’s residence. The police assumed that they were no longer on the accused’s property.

With respect to the consideration of the impact of the Charter breach on the Charter -protected interests of the accused it would seem that the impact was fleeting and not at all profoundly intrusive. Here as well the truth-seeking function of the trial process would be better served by the admission of the evidence than by its exclusion.

Accordingly, were I considering only this Charter breach I would not conclude that the evidence should be excluded pursuant to s. 24(2). [ 78 ] The third Charter breach relates to the failure of the police to provide to the accused or to even show him the search warrant upon their attendance at the residence as required by s. 487.1(7) of the Criminal Code . In my view this is a more serious breach s. 8 Charter breach in that it deprived the accused of any opportunity to satisfy himself that this search was in fact authorized by law and that he was required to acquiesce to the search.

It is true that the police believed that they had a lawful search warrant and the failure to provide a copy to the accused at that point did not result in evidence being discovered which would not otherwise be discovered. However when assessing the impact of the breach on the Charter -protected interests of the accused, in my view, admission of the evidence may send the message that the accused’s rights count for little. There was simply no reason why the accused could not be given a copy of the search warrant at the time of his arrest at his residence.

Notwithstanding society’s interest in the adjudication of criminal trials on their merits, in my view, this was a Charter breach which could be considered as bringing the administration of justice into disrepute. [ 79 ] The fourth Charter breach relates to the search conducted by Constable Dyck for an electrical bypass in circumstances where the search warrant did not authorize such a search resulting in s. 8 Charter breach.

In the circumstances of this case it is my view that the Charter -infringing conduct was not particularly serious in that the police discovered the marihuana grow operation upon their entry into the residence quite independent of any search for the electrical bypass. There is concern however that unauthorized searches should not be condoned by the courts and there is some danger that the Charter -protected interests of the accused may be seen as counting for little if police are permitted to conduct themselves in this fashion. [ 80 ] Upon a consideration of all of the factors listed in R. v.

Grant , I am not persuaded that based on this single Charter breach the evidence should be excluded as bringing the administration of justice into disrepute. [ 81 ] I must, however, consider whether, taken together, the Charter breaches which I have identified, should, in these particular circumstances, result in exclusion under s. 24(2). I must determine whether on balance the admission of the evidence obtained by the Charter breaches would bring the administration of justice into disrepute. My conclusion is that it would.

The public is entitled to have confidence that the police in their investigation of crime will do so in accordance with law. The facts in this case indicate that the police, in executing their duties, were prepared to make unwarranted assumptions and take shortcuts which led to unnecessary errors. This casual approach resulted in the rights of the accused being violated. When viewed in their totality and viewed from a long-term perspective, this should not be permitted to continue.

It is unfortunate that the result in this particular case will be that the accused, who undoubtedly operated a marihuana grow operation, will walk free. However as Chief Justice McLachlin pointed out in R. v. Grant ( supra ), it is the long-term interests that we all have in the administration of justice that necessitates such a result. Accordingly the evidence is excluded. _________________________________ The Honourable Judge W.W. Klinger