COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
R. v. Ford, |
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2008 BCCA 94 |
Date: 20080304
Docket: CA034396
Between:
Regina
Respondent
And
David Michael Ford
Appellant
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Before: |
The Honourable Madam Justice Saunders |
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The Honourable Madam Justice Kirkpatrick |
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The Honourable Mr. Justice Frankel |
| P. Jensen and J. Jensen |
Counsel for the Appellant |
| J.A. Mauro Bowers, Q.C. |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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11 January 2008 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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4 March 2008 |
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Written Reasons by: |
| The Honourable Mr. Justice Frankel |
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Concurred in by: |
| The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick |
Reasons for Judgment of the Honourable Mr. Justice Frankel:
OVERVIEW
[1] This conviction appeal concerns the validity of two general warrants issued under s. 487.01 of the Criminal Code, R.S.C. 1985, c. C-46, which were used to investigate drug-related activity on property belonging to the appellant, David Michael Ford. The police detected evidence of a marihuana grow operation when they entered onto the Ford property pursuant to these warrants. This information was later used to support the issuance of a search warrant for the property under s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Marihuana and other items seized during the execution of this search warrant resulted in Mr. Ford’s conviction on drug-related and weapons offences.
[2] Mr. Ford says that the general warrants are facially invalid, and that the information acquired by the police when they entered onto his property pursuant to them was obtained in violation of his rights under s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Further, he says that as the information gathered under the general warrants was used to obtain the search warrant, it too is invalid, and its execution violated his s. 8 rights. He submits that, in the result, the evidence seized from his property should be excluded under s. 24(2) of the Charter.
[3] First, Mr. Ford contends that the general warrants are invalid because of one word that appears in them. Both warrants contain a recital stating that the respective issuing judges were satisfied that “information, or evidence, that would assist in the investigation … could be obtained through a General Warrant”. Mr. Ford submits that this wording indicates that these judges acted without being satisfied that the supporting material met the statutory requirement that “information concerning the offence will be obtained” by the investigative technique being authorized.
[4] Mr. Ford further argues that the provision in the general warrants permitting the police to enter onto his property to “verify the presence of [drugs]” is invalid because such investigative action cannot be authorized under s. 487.01, when the police already have sufficient information with which to obtain a search warrant under either s. 487 of the Code, or s. 11 of the Controlled Drugs and Substances Act.
[5] The trial judge, Mr. Justice Blair of the Supreme Court of British Columbia, ruled against Mr. Ford on both these points following a voir dire held to determine the admissibility of the evidence seized from the property: 2006 BCSC 305, 216 C.C.C. (3d) 65.
[6] Like the trial judge, I would not accede to either argument and, for the reasons that follow, would dismiss the appeal.
FACTUAL BACKGROUND
[7] Seymour Arm is an isolated community located on Shuswap Lake, east of Kamloops, British Columbia. It is accessible by a single road, or by boat. It has a very small number of permanent residents. During the summer months its population increases substantially.
[8] In the fall of 2002, officers drawn from several police agencies commenced an investigation into the production of marihuana on a number of properties in Seymour Arm. Mr. Ford is a registered co-owner of one of these properties: a four and one-half acre parcel of land located in a wooded area on a dead end road. The investigation was code-named “Project Amazon”.
[9] On April 8, 2003, Detective Constable Catherine Lorraine Geddes of the Delta Police Department, sought and obtained several general warrants from Judge Weitzel of the Provincial Court. These warrants authorized investigative steps to be taken with respect to the Ford property and 16 other properties. However, when the police subsequently discovered that the supporting information to obtain contained a number of typographical errors, they decided that it would be improper to execute those warrants. Rather, Detective Constable Geddes “reapplied” before Judge Weitzel with a new information to obtain, in which she disclosed and corrected the errors in the earlier one. Her previous information to obtain was attached to the new one as an exhibit.
[10] The new information to obtain, together with its attachments, is 143 pages long. It contains information from police officers and other sources, including confidential informers. One of these informers had direct personal knowledge of a marihuana grow operation on the Ford property.
[11] Detective Constable Geddes included a summary of Project Amazon in the information to obtain. In it she states, in part:
5. Seymour Arm is an unincorporated settlement located at the northern end of Shuswap Lake with approximately 50-60 permanent residents, who occupy approximately 25 properties. There are a number of vacation homes in the area and as a result, the population of Seymour Arm increases to approximately 350 during the summer months, not unlike many of the surrounding communities. Information provided to investigators by confidential informants during the course of Project Amazon has identified as many as 19 separate locations where marihuana is being grown within houses that have been renovated or buildings constructed solely for that purpose, as well as within large containers (“bunkers”) that are buried underground. Based on the information received from confidential informants and the investigation conducted since September 2002, the particulars of which are detailed in this Information to Obtain, I believe that there is a criminal infrastructure involving numerous residents of the Seymour Arm community who cooperate in overcoming significant logistical problems inherent in large scale marihuana cultivation in a rural environment and that once the marihuana is harvested it is trafficked in Calgary, Alberta and Vancouver and exported to the United States of America.
[12] Mr. Ford and 22 other persons were specifically named in the information to obtain as the known persons under investigation. In a section of the information to obtain entitled “Logistical Difficulties”, Detective Constable Geddes set out a number of problems faced by the police in trying to verify the involvement of these persons, and their associates, in drug-related criminal activities. One problem was that the nature of the community and the geography of the area made it impossible for the police to conduct physical surveillance of the suspected properties without risking detection. Another was that the cellular telephone technology used by service providers in the area was such that police communications over cellular telephones could be intercepted by means of scanners available to the general public.
[13] Under the heading “Scope of the Warrants”, Detective Constable Geddes sought approval for the police to covertly enter onto the properties under investigation to do several things, including to verify the presence of controlled substances. She deposed that the nature of the investigation was such that execution of search warrants at the present time would not provide evidence with respect to the full scope of the criminal activities believed to be taking place on the properties:
203. A conventional warrant issued pursuant to s. 487 of the Criminal Code or s. 11 of the Controlled Drugs and Substances Act authorizing peace officers to search the subject properties would expose this investigation to the individuals named in paragraph 6 herein and their associates. While searches conducted under the authority of warrants issued under those statutory provisions might result in seizures that could culminate in charges being laid, it is my belief that rather than assisting the investigators to expose the full scope of the criminal organization, or organizations, involved with the production, trafficking and exportation of marihuana in Seymour Arm, investigators’ efforts in that regard would be undermined by the fact that [the Organized Crime Agency of British Columbia’s] investigation of the targets of Project Amazon will be revealed, as will the investigation being conducted by the [Calgary Police Service Drug Unit].
[14] On April 2, 2004, Judge Weitzel granted separate general warrants for each property under investigation. The warrant for the Ford property reads, in part:
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF AN APPLICATION FOR
A GENERAL WARRANT PURSUANT TO
SECTION 487.01(1) OF THE CRIMINAL CODE
AND
IN THE MATTER OF AN APPLICATION FOR AN ORDER TO SEAL
THE MATERIAL IN SUPPORT OF AND RESULTING FROM THIS
APPLICATION PURSUANT TO SECTION 487.3
OF THE CRIMINAL CODE
BEFORE THE HONOURABLE ) TUESDAY, THE 27 DAY OF
JUDGE H.F. WEITZEL ) APRIL, 2004.
GENERAL WARRANT AND ORDERS
UPON THE APPLICATION of Detective Constable Catherine Lorraine GEDDES, Peace Officer, in support of a General Warrant pursuant to Section 487.01(1) and related Sealing Order pursuant to Section 487.3 of the Criminal Code AND UPON READING the Information to Obtain of Detective Constable Catherine Lorraine GEDDES, Peace Officer, sworn on the 8th day of April, 2004; AND UPON READING the Information to Obtain of Detective Constable Catherine Lorraine GEDDES, Peace Officer, sworn on the 27 day of April, 2004;
AND UPON BEING SATISFIED that there are reasonable grounds to believe offences contrary to the Controlled Drugs and Substances Act and the Criminal Code, including:
[trafficking; possession for the purpose of trafficking; production, conspiracy to produce, conspiracy to traffic, conspiracy to export; possession of property obtained by crime]
have been, are or will be committed and that information, or evidence, that would assist the investigation of these offences could be obtained through a General Warrant authorizing members of the Organized Crime Agency of British Columbia and any other peace officers whom [sic] may assist them, to make covert entri(es)/search(es) onto the property of Lot 6, Block 4, Plan 562, District Lot 663, Kamloops Division of the Yale Land District (“Lot 6”);
AND UPON BEING SATISFIED that it is in the best interests of the administration of justice to issue the General Warrant;
AND UPON BEING SATISFIED that there are no other provisions in the Criminal Code or any other Act of Parliament that would provide for a warrant, authorization or order that permits the entri(es)/search(es), as required, of the property of Lot 6;
THIS COURT ORDERS THAT:
1. Members of the Organized Crime Agency of British Columbia and any other peace officers who may assist them, may make covert entri(es)/search(es) onto Lot 6 in order to:
a. Identify other persons associated with those individuals named in paragraph 6 of Appendix A to the Information to Obtain sworn by Detective Constable GEDDES on the 8th day of April 2004, in the production, distribution and exportation of marihuana grown at Lot 6;
b. Conduct physical surveillance of the activities of persons on Lot 6;
c. Use photography (digital or otherwise) and/or video equipment to document observations of people who attend on Lot 6 and their activities as they relate to the offences enumerated in paragraph 6 of Appendix A to the Information to Obtain sworn by Detective Constable GEDDES on the 8th day of April 2004;
d. Verify the presence of a substance on Lot 6, which is believed, on reasonable grounds to be a Controlled Substance, as defined in the Controlled Drugs and Substances Act;
e. Take a sample of anything on the subject properties, which is believed on reasonable grounds to be a Controlled Substance within the meaning of the Controlled Drugs and Substances Act, for the purposes of having the substance analyzed;
f. Utilize a Thermal Imaging Camera on any building, bunker or dwelling house situated on Lot 6;
g. Utilize a handheld Global Positioning System unit in order to determine the exact coordinates of Lot 6, in the event that investigators apply pursuant to the provisions of s. 492.1 of the Criminal Code for authorization to utilize a tracking device on a motor vehicle identified as being associated to one of the targets of Project Amazon identified in paragraph 6 of Appendix A to the Information to Obtain sworn by Detective Constable GEDDES on the 8th day of April 2004.
AND THIS COURT FURTHER ORDERS THAT:
1. This General Warrant is valid from 1:00 p.m. on April 27, 2004 through to 1:00 p.m. on July 24, 2004;
2. Peace officers engaged in the execution of this General Warrant shall carry a copy on their person;
3. As part of the terms and conditions of this General Warrant notice of the search(es) shall be given to the registered owner of Lot 6 within a period not exceeding two years after the execution of the warrant unless a further order for an extensions of notification has been made … .
[Emphasis added]
[15] Police officers acting under the authority of this general warrant entered onto the Ford property at 4:00 a.m. on June 4, 2004. They discovered two wooden frame buildings side-by-side. The larger one was approximately 20 feet square; the smaller one was approximately eight feet by 12 feet.
[16] The larger building had two vent holes near the roof. The officers saw white light coming from under a wall at ground level. Upon removing some dirt and gravel at the base of this wall they could see that (a) the interior walls and floor were lined with clear plastic, (b) there was a lower level beneath the clear plastic floor, and (c) the white light was being emitted from beneath the plastic floor. One of the officers detected the odour of growing marihuana at the base of the wall. The officers could hear the sound of a diesel generator running in the smaller building. While the officers were on the property, the white light ceased to shine from under the wall and approximately one and one-half hours later the generator stopped running. The generator restarted after about 12 hours had passed.
[17] The officers took digital photographs and video recordings of the buildings and the surrounding area. They obtained the coordinates for the larger building using a global positioning device.
[18] On September 3, 2004, Detective Constable Geddes applied for a second set of general warrants for the Ford property and the16 other properties. The 169-page information to obtain she swore was an updated version of the one she had prepared in support of the April 27, 2004, warrants. It contained additional information obtained by the police from confidential informers and other sources, and information that had been gathered during the covert entries onto the various properties.
[19] Under the heading “Strategy of Investigation and Scope of Orders Sought”, Detective Constable Geddes set out the operational plan that had been devised by the police to bring the investigation to a conclusion:
451. Members of [the Combined Forces Special Enforcement Unit – British Columbia Quick Response Team] intend to apply for Search Warrants pursuant to the provisions of the Controlled Drugs and Substances Act and s. 487 of the Criminal Code and to execute them on the Real Properties (“Search Warrants”). The execution of such warrants in Seymour Arm will involve extensive logistics and numerous personnel, including several Emergency Response Teams drawn from throughout the province. It is necessary to conduct surveillance on the Real Properties prior to applying for the Search Warrants so that investigators can determine the optimum routes of entry onto the properties, the layout of the structures, and the number and location of any occupants. This is essential in order to ensure officer safety as well as the safety of the persons occupying the properties during the execution of search warrants.
452. On August 4, 2004, Sergeant Patrick FOGARTY, a regular members of [the Combined Forces Special Enforcement Unit – British Columbia] who is the officer in charge of Project Amazon, informed me that on July 14, 2004, he and Cpl. LEONARD met with Inspector Steven LEE, the Officer in Charge of Operations for the Kamloops Subdivision of the RCMP to discuss the preliminary operational requirements for the execution of Search Warrants in Seymour Arm. It has been decided to delay applications for the Search Warrants until early October 2004, or to a subsequent date on which all the necessary resources are available, for a number of reasons. The population of Seymour Arm increases significantly during the summer months and investigators believe that it is not feasible to conduct the searches during the peak vacation period. Further, the extreme forest fire hazard in the area also poses a risk to everyone involved.
[20] With respect to why the police wanted access to the properties to verify the presence of marihuana, Detective Constable Geddes stated:
454. I believe, based on my experience as a police officer and all of the evidence obtained during the course of Project Amazon, that those involved with the production of marihuana on the properties referred to in paragraph 453 herein (“subject properties”) are continuing to grow marihuana. However, it is necessary for investigators to confirm that to be the case so that when the applications are made for Search Warrants pursuant to the Controlled Drugs and Substances Act and the Criminal Code the information in that regard is current.
[21] Judge Blair granted the second general warrant for the Ford property in the following terms:
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF AN APPLICATION FOR
A GENERAL WARRANT PURSUANT TO
SECTION 487.01 OF THE CRIMINAL CODE
AND
IN THE MATTER OF AN APPLICATION FOR AN ORDER TO SEAL
THE MATERIAL IN SUPPORT OF AND RESULTING FROM THIS
APPLICATION PURSUANT TO SECTION 487.3
OF THE CRIMINAL CODE
BEFORE THE HONOURABLE ) FRIDAY, THE 3 DAY OF
JUDGE BLAIR ) SEPTEMBER, 2004.
GENERAL WARRANT AND ORDERS
UPON THE APPLICATION of Detective Constable Catherine Lorraine GEDDES, Peace Officer, in support of a General Warrant pursuant to Section 487.01(1) and related Sealing Order pursuant to Section 487.3 of the Criminal Code AND UPON READING the Information to Obtain of Detective Constable Catherine Lorraine GEDDES, Peace Officer, sworn on the 3 day of September, 2004;
AND UPON BEING SATISFIED that there are reasonable grounds to believe offences contrary to the Controlled Drugs and Substances Act and the Criminal Code, including:
[trafficking; possession for the purpose of trafficking; production, conspiracy to produce, conspiracy to traffic, conspiracy to export; possession of property obtained by crime]
have been, are or will be committed and that information, or evidence, that would assist the investigation of these offences could be obtained through a General Warrant authorizing members of the Combined Forces Special Enforcement Unit of British Columbia and any other peace officers whom [sic] may assist them, to make covert entri(es)/search(es) onto the property of Lot 6, Block 4, Plan 562, District Lot 663, Kamloops Division of the Yale Land District (“Lot 6”);
AND UPON BEING SATISFIED that it is in the best interests of the administration of justice to issue the General Warrant;
AND UPON BEING SATISFIED that there are no other provisions in the Criminal Code or any other Act of Parliament that would provide for a warrant, authorization or order that permits the entri(es)/search(es), as required, of the property of Lot 6;
THIS COURT ORDERS THAT:
1. Members of the Combined Forces Special Enforcement Unit of British Columbia and any other peace officers who may assist them, may make covert entri(es)/search(es) onto Lot 6 in order to:
a. To determine optimum routes of entry onto Lot 6, the layout of structures, and the number and location of any occupants.
b. Conduct physical surveillance of the activities of persons on Lot 6.
c. Use photography (digital or otherwise) and/or video equipment to document observations of people who attend on Lot 6 and their activities as they relate to the offences enumerated in paragraph 6 of the Information to Obtain sworn by Detective Constable GEDDES on the 3 September, 2004.
d. Verify the presence of a substance on Lot 6, which is believed, on reasonable grounds to be a Controlled Substance, as defined in the Controlled Drugs and Substances Act.
f. Utilize a Thermal Imaging Camera on any building, bunker or dwelling house situated on Lot 6.
AND THIS COURT FURTHER ORDERS THAT:
1. This General Warrant is valid from 1:00 p.m. on September 3, 2004 through to 1:00 p.m. on October 17, 2004;
2. Peace officers engaged in the execution of this General Warrant shall carry a copy on their persons;
3. As part of the terms and conditions of this General Warrant notice of the search(es) shall be given to the registered owner of Lot 6 within a period not exceeding six months years after the execution of the warrant unless a further order for an extensions of notification has been made … .
[Emphasis added]
[22] Police officers entered onto the Ford property under the authority of the second general warrant at 4:38 a.m. on September 8, 2004. They detected the strong odour of growing marihuana near the residence on the property. They also heard a diesel engine running, and then heard it stop.
[23] On October 1, 2004, Detective Constable Geddes applied under s. 11 of the Controlled Drugs and Substances Act, for warrants to search the Ford property and 13 others, and a number of motor vehicles. In the 210-page information to obtain that she swore, she detailed the history of the investigation, including the information that had been gathered by means of the previously issued general warrants. Judge Blair issued the search warrants.
[24] The police searched the Ford property on October 6, 2004. They discovered a sophisticated marihuana grow operation in the residence and outbuildings. One of the outbuildings housed a large diesel generator providing the electricity for the equipment being used to grow the marihuana. The police seized over 300 marihuana plants.
RELEVANT STATUTORY PROVISION
[25] Section 487.01 states, in part:
(1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
[Emphasis added]
VOIR DIRE RULING
[26] At trial, Mr. Ford sought exclusion of the drugs and other items seized from his property on several bases. In particular, he submitted that the two covert entries onto his property under the general warrants, and the later execution of the search warrant, violated his rights under s. 8 of the Charter.
[27] The trial judge rejected Mr. Ford’s contention that the use of the words “could be obtained” rendered the general warrants invalid:
[39] I conclude that to authorize a general warrant the granting judge must find that the standard of proof is one of reasonable probability, a standard more than a flimsy suspicion, but less than the civil test of balance of probabilities and much lower than proof beyond a reasonable doubt. The granting judge need be satisfied that there are reasonable grounds to believe that information will, could or may be obtained, not with absolute certainty as urged by the defence.
[40] I find that Provincial Court Judges Weitzel and Blair applied the appropriate test when determining whether they should grant the general warrants being satisfied:
… that there are reasonable grounds to believe offences … have been, are or will be committed and that information, or evidence, that would assist in the investigation of these offences could be obtained through a general warrant ….
[Bold in original]
[28] The trial judge also rejected Mr. Ford’s argument that s. 487.01 of the Code does not permit a judge to authorize the police to enter onto property to “verify” the presences of drugs (i.e., clause (d) in both warrants). In this regard the trial judge stated, in part:
[71] The defence submits that if the police want to obtain evidence of a tangible nature, then they must obtain a warrant under s. 487 of the Criminal Code. I do not comprehend that Parliament’s intention in enacting s. 487.01 was to have it act in tandem with s. 487 requiring police to obtain warrants under both sections.
[72] The defence interpretation would limit police when executing general warrants to obtaining information which could not then become evidence. I do not apprehend the legislation to be so restrictive in its meaning of the word information. I would construe s. 487.01(1)(a) as providing police with authority to gather that which at first might be just information but, in time, might become evidence. I view the addition of the words “or evidence” in the general warrants to be in the circumstances nothing more than surplusage.
. . .
[82] I conclude that Provincial Court Judges Weitzel and Blair complied with the provisions of s. 487.01 in authorizing the two general warrants, including provision 1(d) found in both warrants. I further conclude that although police could have pursued the issuing of warrants under s.487 of the Code and s.11 of the CDSA, such warrants would not permit use of the devices and techniques sought by police, nor did they permit delay in notice of execution as permitted under s. 487.01 and which allowed the police investigation to continue.
[29] The trial judge further found that, as amplified on review, each information to obtain sworn by Detective Constable Geddes contained sufficient reliable information capable of supporting the issuance of the resulting warrant for the Ford property. This finding is not challenged on appeal.
ANALYSIS
“Could be Obtained”
[30] Mr. Ford argues that the general warrants are facially invalid because of the use of the words “could be obtained”. He says these words evince that the respective issuing judges failed to apply the proper test – “will be obtained” – for determining the likelihood of the police obtaining information concerning the offences under investigation under the general warrant.
[31] Mr. Ford submits that the expression “could be found” is equivalent to “may be found”. In support of his argument, he refers to Baron v. Canada, [1992] 1 S.C.R. 416. In that case, Mr. Justice Sopinka discussed the fact that, in a statute authorizing the issuance of a warrant, the use of “may” to describe the prospect of finding evidence is constitutionally impermissible, because it requires the applicant to establish only the mere possibility of finding evidence: 448, 449.
[32] The wording of this recital in a general warrant has been raised in a number of cases. In R. v. Kuitenen, 2001 BCSC 677, 45 C.R. (5th) 131, the warrant stated, “that information that would assist the investigation of this offence may be obtained through the use of the procedures authorized in this General (Surreptitious Entry) Warrant”: para. 14. Although the warrant was ruled invalid for several reasons, the use of the words “may be obtained” was not considered to be fatal in and of itself. In this regard, Mr. Justice Oppal, as he then was, stated:
[22] The general warrant issued in this case is defective for a number of reasons. At the outset it should be noted that it is worded incorrectly. The form is wrong. There is no “General (Surreptitious Entry) Warrant”. Furthermore, the wording of the warrant exceeds the scope of the section in that it authorizes a peace officer to search the property for evidence which “may be obtained” as opposed to “will be obtained”. That in [and] of itself is not fatal in light of the reasoning in Baron v. Canada (1993), 78 C.C.C. (3d) 510 (S.C.C.). Sopinka J. at p. 534 made the following comments:
I conclude, therefore, that the standard “may afford evidence” when coupled with a requirement of credibly based probability that the things sought are likely to be found, passes constitutional muster. I find support for this conclusion in the fact that, at common law, "may afford evidence" was considered a sufficient test for the issue of a warrant. ...
[33] With respect, I do not find Oppal J.’s reasoning apt. Baron concerned a challenge, brought under s. 8 of the Charter, to the former s. 231.3 of the Income Tax Act, S.C. 1970-71-72, c. 63, as amended by S.C. 1986, c. 6, s. 121. Under this provision, a judge could issue a search warrant if satisfied, amongst other things, that there were reasonable grounds to believe that “a document or thing that may afford evidence of the commission of the offence is likely to be found”. What Sopinka J. held is that using “may” to describe the potential evidentiary value of an item was constitutionally acceptable in light of the requirement that there be reasonable grounds to believe that the items sought would “likely” be found in the place to be searched.
[34] Unlike Baron, Kuitenen did not involve a constitutional challenge to legislation. The “will be obtained” threshold in s. 487.01(1)(a) clearly complies with s. 8 of the Charter. The issue in Kuitenen, as in the case at bar, was whether a recital on the face of a general warrant expressing the likelihood of finding information in terms of whether it “could be found” should be taken to mean that the issuing judge granted the warrant on less than the statutorily mandated requirements. In my view, Baron does not shed light on this issue.
[35] Kuitenen was referred to in R. v. Mero, 2003 BCSC 964, 109 C.R.R. (2d) 34, where the words “that information that would assist the investigation of this offence may be obtained through the use of the procedures authorized in this General (Surreptitious Entry) Warrant”, again appeared on the face of the warrant: para. 19. In that case, Mr. Justice Parrett found the warrant was facially defective in a number of ways: paras. 37, 38. He does not deal with the use of the words “may be obtained” other than in passing: para. 25.
[36] Lastly, there is the decision of Judge Arnold, as she then was, in R. v. Guilbride, 2003 BCPC 177, 10 C.R. (6th) 243. Although that case does concern a general warrant using the words “could be obtained”, it is of no assistance as there the Crown conceded this wording rendered the warrant invalid: para. 24.
[37] As I see the issue here, it is whether the use of the word “could” as opposed to “will” casts doubt on whether the issuing judges applied the proper test, or whether they granted the respective general warrants without being satisfied that the statutory requirements had been met. Having regard to the wording of the warrants in their entirety I have no such doubt.
[38] Mr. Ford seeks to have the validity of the warrants determined upon a reading of the impugned words in isolation. This is not the correct approach. As Mr. Justice Gibbs stated in Simonyi-Gindele v. British Columbia (Attorney General) (1991), 2 B.C.A.C. 73, “it is not appropriate, when testing the validity of a warrant, to parse and microscopically examine words, phrases or paragraphs in isolation”: para. 21.
[39] To begin this exercise in semantics, it is important to note that the meaning to be given to the word “could” depends on the context in which it is used. In the English language “could” is used both to indicate a possibility (i.e., something closer to “may”) or a probability (i.e., something closer to a certainty). “Will”, on the other hand, is used to express an inevitability or probability.
[40] “Could” is the past tense of “can”. The following definitions of “can” illustrate its various usages:
1 be able to. ► [neg. or in questions] used to express doubt or surprise: he can’t have finished. ► used to indicate that something is typically the case: he could be very moody. 2 be permitted to.
Concise Oxford English Dictionary, 11th ed. (Oxford University Press: 2004)
1 a in reported speech (she said she could come to the party). b to express the conditional mood (he could have been on time if he had left earlier). 2 to express a question or polite request (could you please shut the window?). 3 to express a probability (that could be the right answer). 4 to ask permission (could I leave early?). 5 to offer a suggestion, advice, etc. (you could try looking in the encyclopedia for more information). 6 to express habitual action (when I was a child, I could not play hockey because of my asthma).
Canadian Oxford Dictionary (Oxford University Press: Toronto, 1998)
[Emphasis added]
[41] “Will” is the present tense of “would”. It is defined as follows in the above mentioned dictionaries:
1 expressing the future tense. ► expressing a strong intention or assertion about the future. 2 expressing inevitable events. 3 expressing a request. ► expressing desire, consent, or willingness. 4 expressing facts about ability or capacity. 5 expressing habitual behaviour. 6 expressing probability or expectation about something in the present.
Concise Oxford English Dictionary, 11th ed.. (Oxford University Press: 2004)
1 expressing the future tense in statements, commands, or questions (you will regret this; they will leave at once; will you go to the party?). 2 expressing a wish or intention (I will return soon). 3 expressing desire, consent or inclination (will you have a sandwich?; come when you will; the door will not open). 4 expressing ability or capacity (the jar will hold a kilo). 5 expressing habitual or inevitable tendency (accidents will happen; will sit there for hours). 6 expressing probability or expectation (that will be my wife).
Canadian Oxford Dictionary (Oxford University Press: Toronto, 1998)
[Emphasis added]
[42] As reflected in these definitions, “could” and “will” can both be used to express habitual action or probability; in other words, something greater than a mere possibility. The question here is whether “could” was used in this sense in the general warrants. I find that it was for the following reasons.
[43] It is apparent from reading the general warrants that the issuing judges turned their minds to the criteria in s. 487.01(1)(a), including the need for the existence of reasonable grounds to believe that the execution of a general warrant was likely to yield information concerning the offences under investigation. The reasonable grounds standard, which is sometimes expressed as “credibly-based probability”, is well known, and is regularly considered and applied by judges at all stages of the criminal law process.
[44] It is also apparent from the face of the general warrants, that the issuing judges turned their minds to the criterion set out in s. 487.01(1)(b), namely, whether the granting of the warrants was in “the best interests of the administration of justice”. The Supreme Court of Canada has held that in the search and seizure context this criterion embraces the constitutional requirement that an issuing judge be satisfied that there are reasonable grounds to believe that the interceptions being authorized will afford evidence of the offences under investigation: R. v. Garofoli, [1990] 2 S.C.R. 1421 at 1444. Once again, this is an aspect of the law well known to the judiciary.
[45] In light of the fact that the legal principles applicable to the issuance of warrants are well known, the presumption that judges know the law has application here. Although R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. CA.), deals with this presumption in the context of appellate review of a trial judge’s reasons for judgment, the following from the judgment of Mr. Justice Doherty (at 203) is nonetheless apposite:
Even if the passage set out above was ambiguous and could bear either the interpretation I place on it or the interpretation advanced on behalf of the appellant, I would adopt my interpretation. Trial judges are presumed to know the law: R. v. Burns (1994), 89 C.C.C. (3d) 193 at pp.199-200, [1994] 1 S.C.R. 656, 29 C.R. (4th) 113 sub nom. R. v. B. (R.H.). That presumption must apply with particular force to legal principles as elementary as the presumption of innocence. Where a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law: R. v. Smith (1989), 95 A.R. 304 (C.A.) at pp. 312-13; affirmed [1990] 1 S.C.R. 991, 109 A.R. 160, 111 N.R. 144.
[Emphasis added]
[46] In the case at bar, I can come to no conclusion other than that the word “could” evinces that the issuing judges were satisfied there was a credibly-based probability or likelihood that the execution of the general warrants would assist in advancing the investigation. In the present context, “could be obtained” and “will be obtained” have similar meanings. Both general warrants are, therefore, facially valid.
[47] Although this disposes of the first ground of appeal, I wish to add a comment. To my knowledge, there are no pre-printed forms for general warrants in use in this province, as there are for search warrants under s. 487 of the Code and s. 11 of the Controlled Drugs and Substances Act. In this case, the body of both general warrants is typewritten except that on the first page the name of the issuing judge and part of the date are filled in by hand. This leads me to believe that the warrants were prepared by the police, possibly with the assistance of Crown counsel, and presented for signature when the applications were made. While ultimate responsibility for the form of any order rests with the judicial officer who signs it, the practical reality is that in many instances the drafting is left to others. I cannot help but note that the issue of the significance of the wording of the document raised in this case, and in the others to which I have referred, would never have arisen had the person who prepared the general warrants followed the salutary practice of ensuring that recitals in an order track the language of the applicable statutes.
Verifying the Presence of Drugs
[48] This next ground of appeal is based on s. 487.01(1)(c), which limits the availability of general warrants to situations where there is no provision in any federal statute “that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done”.
[49] Mr. Ford submits that it was not open to the police to obtain a general warrant for the purpose of verifying the presence of drugs on his property because they already had reasonable grounds to believe drugs were present. He says that in these circumstances, the police were limited to seeking a search warrant under the Criminal Code or the Controlled Drugs and Substances Act. In support of this contention, Mr. Ford relies on the statement by Parrett J. in Mero (at para. 18), that “the availability of a warrant under s. 11(1) of the Controlled Drug and Substances Act would preclude the issuance of a warrant under s. 487.01 by operation of s. 487.01(1)(c)”. In ruling against Mr. Ford on this point, the trial judge opined that this statement was obiter and had no binding effect on him: para. 76.
[50] I agree with the trial judge that there is nothing in the language of s. 487.01(1)(c) that precludes a peace officer from obtaining a general warrant solely because he or she has sufficient information to obtain a search warrant. Resort to a general warrant is only precluded when judicial approval for the proposed “technique, procedure or device or the doing of the thing” is available under some other federal statutory provision.
[51] That the police are in a position to obtain a search warrant does not prevent them from continuing to investigate using all other lawful means at their disposal. Having regard to the requirements of s. 487.01(1)(a), I expect that in many cases the information the police present in support of an application for a general warrant would also support an application for a search warrant. I see nothing wrong in utilizing a general warrant to obtain information with a view to gathering additional and possibly better evidence than that which could be seized immediately through the execution of a search warrant. In addition, I expect there will be some cases in which investigative action taken under a general warrant will result in an investigation, or an aspect of it, being abandoned; e.g., where a covert entry reveals that a property does not contain a marihuana grow operation.
[52] Although in April, 2004, the police had reasonable grounds to believe marihuana was being grown on the Ford property, the nature and scope of the investigation was such that it was not practicable for them to carry out a full search of the property until some months later. In my view, their decision to seek to “verify” the presence of marihuana on the property during the course of their continuing investigation was a reasonable one. However, in light of R. v. Kokesch, [1990] 3 S.C.R. 3, and R. v. Evans, [1996] 1 S.C.R. 8, covert entry onto the property for this purpose would constitute an unreasonable search in the absence of prior judicial approval. As judicial approval for such an entry cannot be granted under s. 487 of the Code, s. 11 of the Controlled Drugs and Substances Act, or any other federal statute, a general warrant under s. 487.01 was available.
[53] This does not mean that it will be open to the police to obtain a general warrant in every case in which they have information to support the issuance of a search warrant. Assuming the criteria in s. 487.01(1)(a) and (c) are met, the judge before whom an application is made still has to consider whether issuing a general warrant is “in the best interests of the administration of justice”. Mr. Ford does not argue this requirement was not met in this case.
CONCLUSION
[54] I would dismiss this appeal.
“The Honourable Mr. Justice Frankel”
I AGREE:
“The Honourable Madam Justice Saunders”
I AGREE:
“The Honourable Madam Justice Kirkpatrick”