R. v. Galbaiti Date:, 2012 BCPC 378

Citation: R. v. Galbaiti Date: 20120830 2012 BCPC 0378 File No: 90078 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID MICHAEL GALBIATI RULING ON VOIR DIRE OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. Clarke Burnett Counsel for the Accused: Mr. Mike Smith Place of Hearing: Kamloops , B.C. Date of Hearing: October 19, 2011, May 17, 2012 Date of Judgment: August 30, 2012

[ 1 ] David Michael Galbiati is charged with possession for the purpose of trafficking and with the storage of firearms and ammunition contrary to regulation. Both charges are advanced pursuant to a search warrant executed on June 2, 2010 with respect to property owned by Mr. Galbiati. [ 2 ] The trial opened within this voir dire pursuant to an application by Mr. Galbiati under s. 8 of the Charter of Rights and Freedoms that his constitutional right to be secure against unreasonable search and seizure was violated on the following basis: 1.

The supervising RCMP officer failed in his duty to ensure that the officers involved in this search seized only the items specified in the search warrant. 2. The supervising RCMP officer failed in his duty to direct the investigating officers to obtain further warrants under the Criminal Code to seize items not specified in the original warrant. 3. The supervising RCMP officer failed to ensure that the Information to Obtain used by the affiant contained a check with Health Canada to ensure that the premises in question did not contain a legal marijuana production operation. 4.

The investigating officers in this case acted outside of the scope of the warrant in making seizure of vehicles and firearms that were not authorized by the warrant. SCOPE OF WARRANT: [ 3 ] The warrant issued by the Judicial Justice at the Justice Centre on June 2, 2010 authorized entry of the residence and garage of David Michael Galbiati at 5879 Campbell Creek Road, Kamloops, BC between the hours of 9:40 a.m. and 7:00 p.m. on June 2, 2010. The investigation was pursuant to allegations of production of a controlled substance and possession for the purpose of trafficking.

The scope of the warrant was to search that residence and garage for marijuana plants and production equipment; lights, ballast timers and irrigation systems; documentation of occupancy, notes and records pertaining to marijuana growing; and cash, scales and cell phones. [ 4 ] A great deal more than this was seized during the course of the execution of the search warrant. It is all documented in several binders of material admitted in evidence.

Generally, the categories and specific items include a computer; a PVR hard drive; imitation police riot shield; 28 firearms; several thousand rounds of ammunition; heavy duty equipment including a bobcat and excavator; a Corvette; a Kevlar vest; a Dodge Durango; tax documents; bank documents; a rocket launcher; a quad and an ATV; various documents in the name of the accused; close to 20 pounds of marijuana; and marijuana root bulbs. [ 5 ] Mr. Galbiati takes no issue with respect to the validity of the search warrant.

He seeks exclusion of the items seized under the search warrant based on the unreasonable search and seizure. Mr. Galbiati argues that many items were not properly subject to seizure under the plain view doctrine and ought not to have been seized without the police obtaining a further search warrant. [ 6 ] Sergeant Senner testified that while executing the search warrant, including obtaining copies of documents to prove occupancy of the residence, income tax returns for the years 2002 to 2006 were discovered.

Based upon the size of the home, the assets located on the property and the contents of the home, Sergeant Senner determined that the lifestyle exceeded the apparent income stated in those income tax returns. [ 7 ] Based upon the comparison between the evident lifestyle and the apparent income of Mr. Galbiati, Sergeant Senner determined that it would be appropriate to commence a proceeds of crime investigation. As a result, a number of items were seized from the property, which are otherwise properly the property of Mr. Galbiati. [ 8 ] Mr.

Galbiati submitted that there was no right to examine the tax documents in the first instance. The Income Tax Act s. 241 recognizes that tax information is confidential. Such an examination as undertaken by Sergeant Senner goes beyond looking at the face of the document to see if there are documents relating to occupancy. Even if they were properly examined, the documents were so dated that Sergeant Senner should not have reached the conclusion that Mr. Galbiati’s income did not support his apparent lifestyle. Sergeant Senner had no idea what inheritances or lottery winnings Mr.

Galbiati may have had to explain his relative wealth. Sergeant Senner did not turn his mind to whether Mr. Galbiati had a wife or girlfriend with an income source that would justify the assets. [ 9 ] It did not occur to Sergeant Senner to leave the property and obtain a further search warrant to cover a proceeds of crime investigation. Mr.

Galbiati argued that while the search warrant permits a search for documents relating to residency and occupancy, it did not permit a blanket authority to search for anything else that was not offence related. [ 10 ] Vehicles and equipment located on the property were searched without a warrant as part of the seizures. They were taken from the property. Mr. Galbiati was never charged with any offence relating to any vehicle seized or any item taken from the property apart from the information relating to these charges before me.

Some of those vehicles and equipment turned out to be stolen. [ 11 ] There are also a number of items seized from the home, including firearms and ammunition, some of which was locked and some of which was in plain view. Mr. Galbiati argued that the firearms and ammunition properly stored should not have been seized. He also argued that the police had to establish the ammunition was for the firearms that were improperly stored before seizing it. There is no logical correlation proved between the ammunition and guns seized. [ 12 ] Mr.

Galbiati also complained that his that PVR hard drive and computer hard drive were searched. The search warrant does not contemplate the search of hard drives. These items have not been returned to Mr. Galbiati to this day. [ 13 ] There were four distinct investigations ongoing during the course of the execution of the search warrant. There was the

investigation related to the marijuana grow operation which was the subject of the search warrant; there was the investigation related to the proceeds of crime evidence; there was the investigation with respect to the breach of the Firearms Act and Regulations ; and there was the evidence related to the stolen equipment investigation. Mr. Galbiati argued that all of the evidence seized pursuant to all of the investigations is to be excluded under

section 24 to of the Charter of Rights and Freedoms because of the manner in which the search warrant was executed. [ 14 ] The Crown argued that the officers were present at the location by judicial authority. The search warrant was valid. All of the items seized were in plain view. A number of weapons were found on the property as well as thousands of rounds of ammunition, which was not safely stored.

Some of the weapons were properly stored; others were not. [ 15 ] Of the large equipment seized from the property, the Crown argued that the officer could see the vehicle identification numbers in plain view without entering the equipment. When the vehicle identification numbers were searched, the results revealed the equipment was stolen. Once the officers determined the equipment was stolen, they were entitled to seize it. The Crown agreed that if the police had to enter the vehicle in order to obtain the V.I.N. that would not be a proper search.

That was not what occurred here. [ 16 ] With respect to the tax documents, the Crown argued that the search warrant allowed examination of documents to determine occupancy and to go toward proving whether a grow operation was present. The law does not prevent the officers examining the documents. The Crown rightly argued that the search of documents does not stop at the first page.

It is proper for the police officers to inspect all of the documentation to determine whether the evidence they are authorized to find pursuant to the search warrant is contained within those documents. [ 17 ] The Crown concedes that it is a more difficult leap to seizing all of the vehicles on the property, including those that were not stolen.

He argued that Sergeant Senner believed, perhaps in error, that because of his observation of the documents and the assets, a proceeds of crime investigation ought to be commenced. [ 18 ] The police had discovered pursuant to the search warrant what appeared to be a well constructed, albeit small, marijuana grow operation concealed in the garage and a large quantity of marijuana. Coupled with tax documents showing the income was not sufficient in view of the assets present, the decision to proceed with a proceeds of crime investigation was a reasonable one. THE LAW: [ 19 ] Mr. Smith referred me to R. v.

Ciachurski [2009] B.C.J. No. 2139 . This case involved an application by two accused for exclusion of evidence based on violations of their right against unreasonable search and seizure. The police attended the property to investigate a firearms complaint. As they approached the property, one of the officers noted the smell of marijuana. The police continued with their firearms investigation. Based upon their observations, a warrant was sought. The warrant authorized search of the non-residential building on the property for marijuana and of the residence for ownership documents.

The court held that the police had a legitimate purpose in going to the property to address the firearms complaint. Upon smelling the marijuana through, the police no longer had consent to enter the property under the invitation to knock doctrine. The court held the police ought to have withdrawn immediately to apply for a search warrant to enter. However, the court found that even without the information obtained during the warrantless search, the odour of marijuana would have been sufficient in and of itself for the issuance of the search warrant.

The court also found there was material nondisclosure in issuing a warrant, which justified quashing of it. Nonetheless, the evidence seized from the non-residential buildings was reliable and did not result from an egregious breach of the rights of the accused. The court found that the preconditions for a plain view search did not exist. Therefore, the Charter breaches related to the search of the residence were egregious, resulting in exclusion of that evidence. [ 20 ] The court considered R. v. Grant , 2009 SCC, 32 , and R. v. Harrison , 2009 SCC 34 .

In Grant , the test is set out as follows at paragraph 71: ...(1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights counts for little), and (3) society’s interest in adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 21 ] As set out in Grant , the more severe or deliberate the state conduct leading to the violation of the Charter , the greater the need for the courts to disassociate themselves from that conduct by excluding the evidence in order to preserve public confidence and ensure state adherence to the rule of law. [ 22 ] The court also considered R. v.

Cook (2008), 182 C.R.R. (2d) 158, [2008] O.J. No. 2765 which sets out the preconditions for a plain view seizure: (

a) when the intrusion on a reasonable expectation of privacy occurs, the police are lawfully in the location or place by virtue of presence under warrant authority or otherwise present in circumstances consistent with s. 8 Charter principles (

b) the searcher(

s) are lawfully positioned when discovery and observation of the things occurs, for example, opening a receptacle of a size consistent with it containing a thing listed for seizure on the search warrant and yet to be seized (

c) the things in question are discovered unexpectedly – where their existence was anticipated and reasonable grounds pre-existed the search, warrant authority ought to be obtained

(

d) the criminal character of the thing is readily apparent to the searcher on seeing the thing without investigative examination, testing orother manipulation – the searcher must, on observation, have reasonable grounds to believe the thing has been obtained by or used in thecommission of a criminal offence or will afford evidence of a crime. [23] Referring to Harrison at paragraphs 35-43, the court emphasizes that balancing those factors is a qualitative exercise and not aquantitative one.

The evidence in each line of inquiry must be weighed in the balance to determine whether, having regard to all of thecircumstances, admission of the evidence would bring the administration of justice into disrepute. [24] Mr. Smith argued that the seizures in this case should not receive judicial acceptance. Sergeant Senner admitted that he did notturn his mind to obtaining further warrants. He agreed that the circumstances were not urgent and he could have obtained a warrant bytelecommunications or otherwise if necessary. Mr.

Smith argued that those income tax documents, as dated as they were, would nothave been sufficient for a search warrant relating to a proceeds of crime investigation. [25] Compounding the breach is that no charges resulted from the unlawful seizure from the investigation of the proceeds of crimeor the stolen property. There has been a significant delay returning the vehicles with no explanation for that delay. Money subsequentlyseized from Mr. Galbiati when he was arrested at the airport has never been returned.

The computer and PVR hard drive have neverbeen returned. [26] The Crown argued that the warrant authorized a search of the residence and the garage. This was where the searches weredone. No one was present when the police arrived. They found in plain view in the residence a number of weapons not in a locked safe. They found thousands of rounds of ammunition. These were seized because they were not safely stored. [27]

Section 5 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations provides as follows: 5(1) An individual may store a non-restricted firearm only if (

a) It is unloaded; (

b) It is (

i) rendered inoperable by means of a secure locking device, (ii) rendered inoperable by the removal of the bolt or bolt-carrier, or (iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be brokenopen or into; and [28] In R. v. L.V.R. 2011 BCSC 1158, the court considered seizure of firearms pursuant to a warrant to search for evidence ofmaking and possession of child pornography. The police had originally sought a warrant extending to firearms but the judicial justicedeclined to issue the warrant to that extent.

In addition to seizing the items permitted under the warrant, the officers also seized a numberof firearms and related equipment, including ammunition. The accused sought exclusion of all of the evidence seized pursuant to warrant [29] The Crown agreed in L.V.R., as in the case at bar, that a warrantless search of a person’s dwelling house and computers is avery serious breach of that person’s s. 8 Charter rights.

However, the Crown submits that, as in L.V.R., the “public interest inquiries”finding is of paramount importance in this case: [38] With respect to the second branch of inquiry, it cannot be doubted, and the crown did not dispute, that a warrantless search of aperson’s dwelling house and computers is a very serious breach of that person’s

section 8 rights: See R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. [39] Turning to the third branch of inquiry, I find that the public interest in truth-finding is of paramount importance in this case. Twofactors to be considered are the reliability of the evidence, and the importance of the evidence in the crown’s case.

The reliability of theevidence in question is unimpeachable, and it is crucial to the crown’s case against the accused on the child pornography counts (11 and12), as well as to the counts alleging ongoing sexual abuse of MH (counts 1-3). [30] As in L.V.R. the reliability of the evidence is unimpeachable and crucial to the Crown's case. In that case, the court held that aplain reading of s. 5 of the Regulation makes it clear that even firearms rendered inoperable were not properly stored if there was readyaccess to ammunition not locked separately in a secure manner.

[31] The Crown referred to R. v. Fawthorp (January 25, 2002). In that case, Mr. Fawthorp was convicted of possession of childpornography. The evidence was seized pursuant to a search warrant later determined to be partially invalid. At trial, the judge severedthe warrant and admitted that evidence which was properly seized. [32] On appeal, the court considered s. 489 (1) and (2) of the Criminal Code. At paragraph 27, the court said this: [27] Little attention has been accorded to s. 489 or its predecessors in the case law.

The trial judge stated that he considered s. 489 tobe the codification of the plain view doctrine. However, as I have said, it is not necessary for the purpose of this appeal to determinewhether the trial judge was correct. Nevertheless, in my opinion it is clear that because neither subsection (1), nor subsection (2),authorizes a warrantless search, the power of seizure which they authorize necessarily is confined to what police officers locate in theexecution of a valid search warrant under subsection (1) or where an officer is lawfully present in a place under subsection (2).

Therefore, read as a whole, s. 489 authorizes police officers to lawfully seize items which they locate in the circumstances provided forin subsections (1) and (2). [28] Turning to the common law plain view doctrine, in R. v. Spindloe (2001) 2001 SKCA 58 , 154 C.C.C. (3d) 8 at 29-37(Sask. C.A.), Jackson J.A., in thorough and careful reasons in which she reviewed the American and Canadian authorities, analyzed theplain view doctrine.

She began at p. 29 with the following definition of “plain view”: Fontana in The Law of Search and Seizure in Canada (3rd ed.), defines “plain view” (at p. 602) in this way: “Plain view” occurs when evidence falls into the view of an officer who has a right to be in the position he is in to have the view he hashad; such items have been held to be subject to seizure. [29] At p. 33, Jackson J.A. adopted the requirements necessary to justify a plain view seizure stated by the Supreme Court of theUnited States in Texas v. Brown, 460 U.S. 730 (1983), although not without some modification.

She stated at pp. 33-34: Returning again to [R. v. Belliveau and Losier (1986), 60 C.R. (3d) 361 (N.B.C.A.)], the New Brunswick Court of Appeal relying onTexas v. Brown, suggested that a plain view seizure to be reasonable must satisfy these requirements: (

i) the police must have gainedentry or be in the premises lawfully; (ii) the nature of the evidence must be “immediately apparent” as constituting a criminal offence;and (iii) the evidence must have been discovered inadvertently. [33] Anything seized by the officers in the execution of this warrant must either be contemplated by the warrant, or it must have beenimmediately obvious to and discovered inadvertently by them while executing that lawful warrant. ANALYSIS: Trial Fairness [34] Mr.

Galbiati should not be in a position to defend charges which arise from the search and seizure of assets not covered by thesearch warrant. The issue is whether despite the lawful warrant those items lawfully searched and seized should be excluded because ofthe extend and seriousness of the breach of Mr. Galbiati’s rights.

Seriousness of the Breach [35] All of the evidence seized with respect to Count 1 is evidence obtained by virtue of a lawful warrant. [36] All of the evidence seized with respect to Count 2 relates to the unlawful storage of firearms and ammunition which was in plainview of the officers executing a lawful warrant. This evidence was inadvertently discovered while executing a warrant and the criminaloffence was immediately apparent.

It would have been extremely difficult for the police not to notice this offence, it was so extensiveand pervasive throughout the residence. [37] While the equipment determined to be stolen was not seized pursuant to a properly issued warrant, all of the stolen equipmentwas in plain view. The police are entitled to seize the evidence that has been discovered inadvertently, and the nature of that evidence isimmediately apparent as constituting a criminal offence. The V.I.N.s were searched because they were visible. They were not searchedpursuant to the search warrant respecting the marijuana grow operation.

It was not immediately apparent that the vehicles or equipmentwere stolen. Similarly, it cannot be said that evidence was discovered inadvertently. What ought to have occurred at this point was forthe officers to write down the vehicle identification numbers because they were readily visible. They were entitled to conduct theirsearches of those numbers to determine if the equipment belonged to Mr. Galbiati. [38] Upon discovering that the equipment was stolen, the police ought to have obtained a search warrant pursuant to an investigationfor stolen goods.

Instead, they took the results of the vehicle identification number searches and simply seized the property. It is onlythis final step of seizure which constitutes a breach of Mr. Galbiati’s rights. The breach occurred because of the erroneous belief of thepolice that because the vehicle identification numbers were in view they were entitled to seize the items upon receiving the searchresults. The seizure was done in good faith. I have no doubt that if a search warrant had been sought it would have been granted, given

the vehicle identification number search results. As a result, I find that the breach was not a serious one and, if such charges were before me, I would not exclude the evidence. As it happens, charges are not before me because there was no evidence that Mr. Galbiati acquired the equipment improperly or was aware that the equipment was stolen. [ 39 ] The product of the proceeds of crime investigation is entirely another matter. On one hand, the conclusions reached and the steps taken were done entirely in good faith on the part of Sergeant Senner. However, Mr.

Smith is correct that the dated income tax returns could not logically lead to a search warrant for a proceeds of crime investigation without significantly greater investigation first. I agree with the Crown that the review of the tax documents was not limited to reviewing the front page. I also do not agree that the police were not entitled to peruse the documents more thoroughly. However, I do entirely agree with Mr.

Smith that upon reaching the suspicion that was reached, a further investigation ought to have been undertaken and a search warrant obtained before any further assets pursuant to that investigation were seized. This was a much more egregious breach than that of the stolen equipment. If there was a proceeds of crime charge before me, I would exclude the evidence pursuant to s. 24(2) of the Charter of Rights and Freedoms .

No such charge is before me. [ 40 ] The final issue remaining under the seriousness of the breaches is whether the breach is so serious that it would bring the administration of justice into disrepute if any of the evidence seized, whether lawfully or otherwise, was admitted into evidence. Effects on the Administration of Justice [ 41 ] Admitting evidence pursuant to a willful and unlawful breach would bring the administration of justice into disrepute. The unlawful seizure of items seized in connection with the proceeds of crime investigation were seized on the erroneous belief of Sergeant Senner.

The over seizure of some items was a serious breach. This should not lead necessarily to an exclusion of all of the evidence, including that which is seized lawfully. [ 42 ] It would bring the administration of justice into disrepute if the evidence obtained pursuant to the unlawful seizure in the proceeds of crime investigation were allowed into evidence. I would, if it were before me, exclude it. It would not bring the administration of justice into disrepute if the evidence unlawfully seized pursuant to a lawful investigation into stolen property was not admitted into evidence.

If such evidence were before me, I would not exclude it. [ 43 ] There was no wilful disregard of Mr. Galbiati’s rights. [ 44 ] The evidence lawfully seized pursuant to the plain view doctrine respecting the improperly stored firearms was properly seized. Similarly, all of the evidence seized pursuant to the investigation into the marijuana grow operation was properly seized. Each of these transactions under all four investigations are easily discernable and allocated to those investigations.

That being the case, it would bring the administration into disrepute if that discrete evidence respecting those discrete charges was not admitted into evidence. DECISION: [ 45 ] As with the evidence that was seized pursuant to a partially invalid search warrant in R. v. Fawthorp , supra , I am satisfied that it would not bring the administration of justice into disrepute if I admitted the properly seized evidence relating to the marijuana grow operation and the properly seized evidence relating to the firearms offences into evidence. There were no breaches of Mr.

Galbiati’s rights in respect of either of those charges under s. 8 of the Charter of Rights and Freedoms . Therefore, there should be no remedy available to him pursuant to s. 24(2) of the Charter of Rights and Freedoms . _______________________ S.D. Frame Provincial Court Judge