COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
R. v. K.T. Nguyen; R. v. N.T. Nguyen, |
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2007 BCCA 264 |
Date: 20070426
Docket: CA033954
CA033955
Between:
Regina
Respondent
And
Kien Tam Nguyen
Appellant
CA033955
Between:
Regina
Respondent
And
Nga Thuy Nguyen
Appellant
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Before: |
The Honourable Madam Justice Huddart |
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The Honourable Madam Justice Saunders |
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The Honourable Mr. Justice Chiasson |
Oral Reasons for Judgment
| J. I. Solomon, A.L. Smith |
Counsel for the Appellants |
| W.P. Riley |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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25 April 2007 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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26 April 2007 |
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[1] SAUNDERS, J.A.: Mr. and Mrs. Nguyen appeal from convictions, each, of one count of production of marihuana and one count of possession of marihuana for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act. They contend that evidence essential to their conviction should have been excluded from the trial. They say that the Information to Obtain the search warrant was fatally flawed, that the search was therefore warrantless and breached section 8 of the Charter of Rights and Freedoms, and that the evidence ought to have been excluded pursuant to section 24(a) of the Charter.
[2] The flaw in the Information to Obtain, they say was the failure by the police constable affiant to disclose the police source of some of the information contained in it. Mr. and Mrs. Nguyen contend further that the Information to Obtain inaccurately set out other information and that if that improperly included information is expunged, there is not enough information remaining upon which the search warrant could be issued.
[3] The charges arise from what is commonly called a marihuana grow operation, in a residence. The matter came to be investigated following receipt by a member of the RCMP, Constable Anderson, of an e-mail message from a person he knew, a fellow RCMP officer, Blair Andrew. In the e-mail Blair Andrew asked Constable Anderson to look into a possible grow operation at a house in his neighbourhood owned by Mr. Nguyen. He provided information about Mr. Nguyen, including Mr. Nguyen’s name and his history of involvement with police that included dismissed charges. He said that the neighbourhood reeked of pot and that the residence in question had a two by four barricading the front door. He referred to a check of his drivers licence and ended with the statement, “I really don’t want some Surrey goof picking the wrong house to kick in”.
[4] Constable Anderson, who was relatively new to the drug investigation unit, opened a file and conducted some investigation. He spoke to Constable Andrew and learned that the information concerning the two by four came from another person. Constable Anderson did not complete the investigation, however, and turned it over to another member of the RCMP, Constable Cartier. Constable Anderson provided Constable Cartier with a copy of the e-mail but not advise him that the tipster was a police officer.
[5] Constable Cartier completed the investigation and obtained the search warrant. The Information to Obtain was a 13 page document, of which the reference to the source comprised less than a page. In the Information to Obtain Constable Cartier referred to information coming from “a confidential source of believed reliability, who wishes to remain anonymous for fear of reprisal”. He did not identify the source as a police officer. He related information coming from the source including that “there is a marihuana grow operation” at the residence, “that an odour of marihuana is prevalent on the street in the vicinity”, that Mr. Nguyen had been charged with growing marihuana in the past, and that a two by four barricades the front door. He did not say that the source for the information about the two by four came from a person other than the source as he was not told that by Constable Anderson. Constable Cartier related as well, and at length, the results of the investigation by Constable Anderson, himself and other members of the RCMP, including a description of the premises, accounts of surveillance, results of enquiries into hydro consumption that were said to demonstrate a marked increase in power consumption, a quickly whirling power meter, observations of condensation on a window, and observations of two officers of the smell of marihuana coming from the residence. He set out as well details of the charges previously laid against Mr. Nguyen which he had verified independent of the e-mail.
[6] The search warrant was granted and the police found a moderately-sized marihuana grow operation in the basement of the residence.
[7] In admitting the evidence, Mr. Justice Josephson reviewed the information to obtain and case authority including R. v. Garafoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) and R. v. Araujo (2000), 149 C.C.C. (3d) 449 (S.C.C.). He said:
[9] In conducting this review, it is not appropriate to conduct a microscopic analysis of the affidavit. (R. v. Melenchuk (1993) B.C.A.C. 97 and R. v. Chan (1998) O.J. 453). Rather, I must examine the totality of the circumstances (R. v. Arason (1993) 78 C.C.C. (3d) 1). Nor is it necessary for the affiant to disclose all of the information in the hands of police (R. v. Kelly (1995) 99 C.C.C. (3d) 367) nor need the affiant disclose every fact which might possibly be relevant (R. v. Chambers (1984) 9 C.C.C. (3d) 132). The obligation is on the affiant to make a full, fair and frank disclosure (R. v. Araujo (2000) 149 C.C.C. (3d) 449).
[10] In my capacity as reviewing judge I must not rehear the application nor substitute my own view. The standard of review approved in R. v. Garofoli at page 119 quotes from Mr. Justice Martin at the appellant level. If the reviewing judge:
-- concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter
. . .
If, based on the record which is before the authorizing judge, as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
In Araujo Madam Jusice LeBel, endeavouring to simplify the test, stated for a unanimous court the following:
In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.
[11] Here the defence capably tested every aspect of the circumstances leading to the issuance of the warrant. As mentioned earlier, that process revealed an instance of what was capable of misleading the justice of the peace to some extent with respect to the exact nature of the information obtained from the informer. That must be corrected by way of amplification. This is not a case of deliberate misleading by the affiant by way of any statement or lack of statement, or any deception on the part of the affiant in any respect.
[12] I do note that in R. v. Hutchings, a decision of the British Columbia Court of Appeal number CA019029, they express disapproval of including the dismissed charges in an information sworn in support of an application for a search warrant. However, the justice of the peace is a judicial officer and quite capable of assessing what weight, if any, should be attached to various assertions in the information in support of the application for the search warrant in the context of the circumstances assessed as a whole, rather than pieced by piece in isolation.
[13] With the exception I have mentioned, the information was a full, fair and frank disclosure of the relevant information in the hands of the investigators. Despite the able submissions of Ms. Connell, it is my view that the application has fallen markedly short of meeting the standard as set out in Araujo and Garofoli and I will decline to grant the relief sought in the application.
[8] On appeal, Mr. Solomon contends on behalf of Mr. and Mrs. Nguyen that the learned trial judge erred in finding that “this was not a case of deliberate misleading by the affiant by way of any statement or lack of statement, or any deception on the part of the affiant in any respect”. He submits further that deception on the Judicial Justice of the Peace was practiced, that the entire Information to Obtain was thus tainted and the search warrant must be found to be fatally flawed. In the alternative he contends that expunging the tainted information leaves an insufficient basis for the warrant. Lastly, he says that the search thus being in law warrantless, the evidence should be excluded pursuant to s. 24(2) of the Charter.
[9] I am not persuaded that the trial judge erred so as to permit this Court to intercede.
[10] The first ground raised addresses the conclusion that there was no deliberate misleading and no deception. That is a finding of fact by the trial judge. It is well known that in order for this Court to interfere with a finding of fact, we must be satisfied that the trial judge made a palpable and overriding error. In other words, the finding of fact must be unsupported by evidence.
[11] Mr. Solomon refers us to evidence from Constable Anderson that he knew the police identity of the tipster, and evidence of Constable Cartier that it “could be a police officer providing information”. He says that it was thus deceptive for Constable Cartier to refer to the source as a “confidential source of believed reliability” without disclosing the nature of the source’s occupation. He says further that it was incorrect to say that the reason for the desired anonymity of the source was ‘fear of reprisal”.
[12] Constable Cartier testified that he did not know the police character of the source, although he realized it “could be a police officer”. He also testified that he considered the e-mail demonstrated security concerns. The trial judge, who heard the evidence, accepted this testimony. He was entitled to reach that conclusion, and on that conclusion, his finding of fact is one that the trier of fact could reach taking the evidence as a whole, and considering the text of the e-mail. In my view, there was a sufficient basis upon which the trial judge could conclude that there was no deliberate misleading of the Judicial Justice of the Peace. That being so, in my view the issue of the effect of a deliberately misleading statement in an Information to Obtain suggested by cases such as R. v. Sismey, [1990] B.C.J. No. 757 (Vancouver Registry, CA009735) of March 30, 1990, cited in R. v. Donaldson, [1990] B.C.J. No. 1857 (BCCA) does not arise.
[13] In any event, I agree with the Crown that subsequent jurisprudence, starting with Garafoli, has overtaken those cases. A recent expression of this newer approach is found in Araujo, citing with approval R. v. Monroe (1997), 8 C.R. (5th) 324 (B.C.C.A.) where, at p. 333 Mr. Justice Esson stated:
The judge was then required to assess the evidence placed before the justice, in the light of the evidence brought out at trial, in order to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support the warrant.
[14] In Araujo the Supreme Court of Canada made it clear that any analysis must be contextual, citing a passage from R. v. Morris (1998), 134 C.C.C. (3d) 539 at p. 533, that stated that even fraudulent errors do not automatically invalidate a warrant, although they are relevant to the review process.
[15] It follows that I find no basis upon which to conclude that the approach taken by Constable Cartier to the information provided by Constable Andrew was either deliberately misleading, or a basis upon which to find the search warrant should be rejected.
[16] At most, had the appellant persuaded me that the Information to Obtain was flawed in that Constable Cartier was required to disclose the police identity of the tipster in these circumstances, the proper route on review would be to expunge the portions of the Information to Obtain which related the information known to the tipster and then to determine whether sufficient information remained to support the warrant.
[17] As an alternative argument to his submission that the search warrant should fail simply on the basis of misleading information, Mr. Solomon urged us to consider the remaining information insufficient. He addressed the various components of the remaining information, contending that each of them, of which the smell of marihuana, condensation on the windows and hydro consumption are the most significant, each could be explained in a way unrelated to a marihuana grow operation at the residence.
[18] I think that Mr. Solomon said all that could be said for the appellants. But in the final analysis, in my view, the evidence taken as a whole amply supports the search warrant. While there could be other explanations for each of the observations, taken as a whole they present support for the warrant. As the trial judge noted, Mr. and Mrs. Nguyen fell “markedly short of meeting the standard as set out in Araujo and Garafoli.”
[19] It follows that I find no error in the ruling on the voir dire as to the admissibility of items seized during the search which was conducted on the authority of the impugned warrant. I would dismiss the appeal.
[20] HUDDART, J.A.: I agree.
[21] CHIASSON, J.A.: I agree.
[22] HUDDART, J.A.: The appeal is dismissed.
“The Honourable Madam Justice Saunders”