IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. Mero
	2003 BCSC 964

Date: 20030619

Docket: 20331-3-C

Registry: Quesnel

Regina

v.

Robert Dennis Mero

Before: The Honourable Mr. Justice Parrett

VOIR DIRE RULING

Counsel for the Crown:	C. Lawlor
Counsel for the accused:	S. Sinclair
Date and Place of Voir Dire:	June 11 to 13,16,17, 2003
	Quesnel, B.C.

INTRODUCTION

[1]            The accused, Robert Dennis Mero, is charged with producing a controlled substance and possession of a controlled substance for the purpose of trafficking.  Both counts arise under the Controlled Drug and Substances Act and in turn flow from the discovery of an underground marijuana grow operation near Quesnel on September 8, 2000.

[2]            In the present voir dire, the accused challenges the validity of the general warrant issued pursuant to s. 487.01 of the Criminal Code and seeks, under s. 24(2) of the Canadian Charter of Rights and Freedoms, the exclusion of the evidence obtained as a result of the execution of the warrant.

BACKGROUND

[3]            In or about April 2000, members of the R.C.M.P. in Quesnel received information that the accused, Robert Mero, was involved in a marijuana grow operation on Allcock Road.  Over the ensuing months, police officers, led by Cpl. Vinet and Cst. Collister, gathered information and on September 6, 2000, having completed an information to obtain, Cpl. Vinet applied to a Provincial Court judge under s. 487.01 of the Criminal Code for a general warrant.

[4]            A Provincial Court judge issued the general warrant authorizing the surreptitious entry and search of the specified property located off Allcock Road; and on September 7, 2000, Cpl. Vinet, Cst. Collister and Cst. Parmar executed the warrant, entering the property and observing two males on the property near a trailer before the two males left the area.  They then located a concealed generator, with cables running underground, and a concealed stairway, apparently leading to an underground bunker.  Within the stairway they observed freshly cut marijuana plants.

[5]            Based on these observations added to their earlier material the officers sought and obtained a search warrant and, on September 8, 2000, officers entered the property locating two underground bunkers in which marijuana was being grown.  The bunkers were powered by a diesel generator, and had a timing system and watering system installed.

[6]            The burden of proof lies on the accused in this case to show, on a balance of probabilities, that his s. 8 rights were breached.  He submits that a review of the information to obtain, in the context of the evidence led on the voir dire, reveals numerous defects and failures to meet the requisite requirements and standards.  In the end, he submits, that the court should conclude that there was no sufficiently reliable evidence upon which the issuing judge could have been satisfied that there were reasonable and probable grounds to issue the warrant.

[7]            Counsel also submit that in this case the warrant is defective on its face in that it fails to comply with the notice required of s. 487.01(5.1).

[8]            Turning to the first of these submissions, the principles which govern a review of a warrant and the function of the reviewing judge were addressed by the Supreme Court of Canada in R. v. Garofoli[1].  At p. 1452 the court said:

The reviewing judge does not substitute his or her view for that of the authorizing judge.  If, based on the record which was 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 this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[9]            The law relating to search and seizure is grounded upon the values that respect a person’s reasonable expectation of privacy.  An accused person who alleges a violation of s. 8 must establish, on a balance of probabilities, a reasonable expectation of privacy in relation to the place subjected to the search[2].

[10]        In determining whether there has been a breach of s. 8, the court must determine two issues; firstly, whether there was a reasonable expectation of privacy, and secondly, whether the search in question was an unreasonable intrusion on that right to privacy.  In considering the first of these issues the court must look to and consider the whole of the circumstances, including the ownership of the property, its historical use, the persons present at the time of the search, possession or control of the property, the expectation of privacy and the reasonableness of that expectation[3]. 

[11]        The Crown, in the present case, as I understand their position, does not challenge the assertion that the accused had a reasonable expectation of privacy with respect to the property entered by members of the R.C.M.P.

[12]        Equally it is not contested that the entry and search of private property, in this case property owned by the accused, is unlawful absent some proper authority. In this case the crown submits that authority is found in the warrant issued under s. 487.01.

THE VALIDITY OF THE GENERAL WARRANT

[13]        In 1993 parliament, responding to two decisions of the Supreme Court of Canada[4], enacted s. 487.01 of the Criminal Code.  The material portions of this section provide:

487.01(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.

. . .

(3)   A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.

(4)   A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.

(5)   The definition “offence” in section 183 and sections 183.1, 184.2, 184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and 194 to 196 apply, with such modifications as the circumstances require, to  warrant referred to in subsection (4) as though references in those provisions to interceptions of private communications were read as references to observations by peace officers by means of television cameras or similar electronic devices of activities in circumstances in which persons had reasonable expectations of privacy.

(5.1) A warrant issued under subsection (1) that authorizes a peace officer to enter and search a place covertly shall require, as part of the terms and conditions referred to in subsection (3), that notice of the entry and search be given within any time after the execution of the warrant that the judge considers reasonable in the circumstances.

(5.2) Where the judge who issues a warrant under subsection (1) or any other judge having jurisdiction to issue such a warrant is, on the basis of an affidavit submitted in support of an application to vary the period within which the notice referred to in subsection (5.1) is to be given, is satisfied that the interests of justice warrant the granting of the application the judge may grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.

[14]        These sections, in essence, address the issues raised in Duarte and Wong, supra, in a manner which appears to have elevated the seriousness of an application brought under this section.  Two elements of the procedure point, in my view, to this conclusion.  The first of these is the fact that a warrant under this section may only be issued by a Provincial Court judge or a Superior Court judge; it cannot be issued by a justice of the peace.

[15]        In obtaining a warrant under this section the peace officer must satisfy the judge on oath and in writing that:

a)    there are reasonable grounds to believe that an offence has been or will be committed;

b)    there are reasonable grounds to believe that information concerning the offence will be obtained through the use of a technique, procedure or device;

c)    it is in the best interests of the administration of justice to issue a warrant; and

d)    there are no other Federal Acts that would provide for a warrant.

The second element pointing to the difference in this procedure is the fourth element listed which requires the peace officer to establish that a warrant is not available on the basis of other federal legislation.

[16]        The Controlled Drug and Substances Act, s. 11(1), provides for the issuance of a search warrant covering the investigation of offences against that Act.  It provides:

11(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a)  a controlled substance or precursor in respect of which this Act has been contravened,

(b)  any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c)  offence-related property, or

(d)  any thing that will afford evidence in respect of an offence under this Act

[17]        In all but the case of a future offence it is difficult to see the circumstances in which the reasonable and probable grounds needed to justify a warrant under s. 487.01 would not also justify the issuance of a warrant under s. 11(1)(d).

[18]        In the present case that is particularly so where all of the evidence presented indicated the presence of an established and ongoing marijuana grow operation.  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).

[19]        In my view, it is important in the present case to examine the language of the warrant itself and what it purports to authorize.  I set out the entire body of the warrant:

CANADA                              IN THE MATTER OF an information to

                                    Obtain a General (Surreptitious Entry)

PROVINCE OF BRITISH COLUMBIA        Warrant pursuant to the provisions of

                                    Section 487.01 of the Criminal Code of

                                    Canada.

GENERAL (SURREPTITIOUS ENTRY) WARRANT

UPON READING the Affidavit and Information dated the 06^th day of September, 20002, of Constable Carl VINET, a Peace Officer, to obtain a General (Surreptitious Entry) Warrant for a period not to exceed thirty (30) days, pursuant to the provisions of Section 487.01 of the Criminal Code of Canada.

1.    AND upon being satisfied that there are reasonable grounds to believe that one or more offenses against an Act of Parliament, namely:

a.    Possession of a Controlled Substance, to wit: Cannabis (Marihuana) for the Purpose of Trafficking, Contrary to Section 5(2) of the Controlled Drugs and Substances Act;

b.    Production of a Controlled Substance, to wit:  Cannabis (Marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act;

have been or will be committed and that information that would assist in the investigation of these offenses may be obtained through the use of the procedures authorized in this General (Surreptitious Entry) Warrant that would, if not authorized, constitute an unreasonable search and seizure in respect of a person or person’s property.

2.    AND upon being satisfied that the requirements of Section 487.01 of the Criminal Code of Canada have been met.

3.    AND upon being satisfied that the General (Surreptitious Entry) Warrant is to be used in respect of the following offenses:

a.    Possession of a Controlled Substance, to wit: Cannabis (Marihuana) for the Purpose of Trafficking, Contrary to Section 5(2) of the Controlled Drugs and Substances Act;

b.    Production of a Controlled Substance, to wit: Cannabis (Marihuana), Contrary to Section 7(1) of the Controlled Drugs and Substances Act;

4.    AND upon being satisfied that there is no other applicable provision in the Criminal Code of Canada or any other Act of Parliament that would authorize all of the investigative techniques and procedures authorized in the General (Surreptitious Entry) Warrant.

5.    IT is hereby ordered that Constable Carl VINET of the Quesnel General Investigation Section and any other Peace Officers, acting in good faith, in aid thereof, are hereby authorized to surreptitiously enter and search the property and outbuildings, excluding any residences, permanent or temporary of Robert D. MERO situated on Allcock Road, legally described as Cariboo Land District 05, District Lot# 12447 near Quesnel, British Columbia (hereinafter referred to as “the premises”) for the purpose of video-taping and/or photographing any structures, vehicles and equipment used on the said property, without entering any such structures, vehicles and equipment used if they exist on the said premises, to gather evidence relating to the criminal offenses pursuant to the provisions of Section 487.01 of the Criminal Code of Canada.  No notice to any person is required prior to, during, or subsequent to any such entry.

6.    IT is further ordered that the surreptitious entry and search of the outbuildings on the premises and the video-taping and photographing of information be done in accordance with the following:

a.    Any surreptitious entry and search pursuant to this General (Surreptitious Entry) Warrant be undertaken by Constable Carl VINET of the Quesnel General Investigation Section and any Peace Officers acting in good faith, in aid thereof, and shall take place between the 07^th day of September 2000, up to and including the 14^th day of September, 2000, a period not exceeding thirty (30) days.  The entry shall not be limited to one entry during this period.  The Officers may re-enter if they cannot effectively disable the locking mechanism(s) or alarm(s) that inhibit the successful execution of this General (Surreptitious Entry) Warrant and such problems could only be realized after the first entry.

b.    That Constable Carl VINET of the Quesnel General Investigation Section and/or any Peace Officers, acting in good faith, in aid thereof, shall retain in his/her custody all photographs and video tapes pending their production into evidence of a court of law.

7.    THAT Constable Carl VINET of the Quesnel General Investigation Section and/or any Peace Officers, acting in good faith, in aid thereof, shall make reasonable effort to repair any physical damage occurring as a result of the surreptitious entries of the premises.

8.    IT is further ordered that this General (Surreptitious Entry) Warrant shall be valid from the 07^th day of September, 2000, up to and including the 14^th day of September, 2000, a period not exceeding thirty (30) days.

DATED at the City of Quesnel, British Columbia, this 06^th day of September, 2000.

______________________________

A Judge of the Provincial Court

  Of British Columbia    

[Emphasis added]

[20]        I have highlighted certain passages in this warrant for reasons which will become readily apparent.

[21]        I want to initially deal with the designation of this warrant as a General (Surreptitious Entry) Warrant.  I observe at the outset that there is no such warrant created or authorized by the Criminal Code, and in particular by s. 487.01.

[22]        Next, I observe that the word “surreptitious” appears nowhere within s. 487.01.  The closest language is found within subsection 5.1 where the word “covertly” appears.  This is no minor difficulty touching on a title placed on the warrant for the word “surreptitious” or “surreptitiously” occurs throughout the body of the warrant and most importantly in paragraphs 5 and 6 which specifically authorize the officer’s activity and characterize the authorized activity by means of that word. 

[23]        The Shorter Oxford English Dictionary defines “covert” as:

Covert . . . 1. Covered, hidden; sheltered. . . . 2. Concealed, secret; disguised. 3. Secretive; sly . . . b. Of words: Of hidden meaning.  . . . 4 Law. Said of a married woman: Under the cover, authority, or protection of her husband.

. . . Hence Covert-ly . . . -ness.

[24]        The complete absence of the word “surreptitious” from the provisions of s. 487.01 is patently clear when one examines its definition in the same dictionary:

Surreptitious . . . 1. Obtained by ‘surreption’, suppression of the truth, or fraudulent misrepresentation.  2.  Secret and unauthorized; clandestine . . . b. Of a passage or writing: Spurious, forged.  Of an edition or copy of a book: Pirated.  . . . Acting by stealth or secretly; stealthy, crafty, sly.

. . . The old man’s look . . . betraying his s. curiosity.  Hence Surreptitious-ly, -ness.

[25]        Concerns about the wording of a warrant cast in similar terms were expressed by Oppal, J., in R. v. Kuitenen[5].  I note in passing that although the written decision in this case was released on May 25, 2001, the ruling finding the general warrant in question invalid was delivered in Williams Lake on July 18, 2000, nearly two months before the present warrant was prepared and issued.  At paras. 21 to 23, Oppal J. writes:

21    Under the general warrant provisions Parliament has given the police extremely broad powers to engage in highly intrusive investigative surveillance.  The section goes so far as condoning a contravention of s. 8 of the Charter.  The police now have considerably greater authority to engage in investigative activities that are more intrusive in scope than those authorized at either common law or under s. 487.

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 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.  . . .

23    The fact remains, however, that on its face the warrant purports to give the police greater power than what is contemplated in the section.

[26]        While the decision on the validity of the warrant in Kuitenen turns on other factors, most importantly the trial judge’s conclusion that the police officer “ . . . did not have reasonable grounds to believe an offence had been committed”.  I share the view expressed in that decision at para. 24 in relation to the present case:

. . . It is difficult to believe how he could have concluded that he lacked the reasonable grounds to obtain a warrant under s. 487 and under s. 11 and had reasonable grounds to obtain a warrant under the general warrant section.  In order to obtain a warrant under the latter section greater safeguards are required in light of the highly intrusive nature of the authorization.

[27]        Oppal J, in the circumstances before him, did not go on to analyze in specific terms the use of the word “surreptitious”; but I note that his concern about yet another use of language “ . . . may be obtained . . .” is repeated in the present warrant.

“. . . ACTING IN GOOD FAITH . . .”

[28]        Although it is a minor point in comparison, in my view, it is not proper to include the phrase “acting in good faith” within the authorization portion of such a warrant.  At best, these words are surplusage, for it is surely to be presumed that police officers acting on the direction and with the authorization of the court will do so in good faith; and at worst, it purports to predetermine the issue of good faith which may well be a live issue. Perhaps more importantly it is difficult to see how a “surreptitious” entry can be carried out in good faith.

THE NOTICE PROVISION

[29]        The last sentence of para. 5 of the warrant provides that:

No notice to any person is required prior to, during, or subsequent to any such entry.

[30]        With the greatest of respect to the issuing judge, it is not possible to read the whole of s. 487.01 let alone the combined provisions of s-ss. 5.1 and 5.2 as authorizing the complete elimination of notice with respect to a warrant issued under s. 487.01.

[31]        Subsection 5.1 is cast in mandatory terms and requires the issuing judge to fix a time for notice to be given that is “ . . . reasonable in the circumstances”.  If I was in any doubt concerning that interpretation it is laid to rest by the terms of s-s. 5.2 which authorizes the extension of time for giving the requisite notice but prohibits any extension for a period exceeding three years.

[32]        The provisions of s. 487.01 effectively provide a mechanism for authorizing activities which constitute a breach of s. 8 of the Charter, and, in this case, what would otherwise be an unlawful entry on private property.  The rights recognized and protected are fundamental rights which can only be interfered with on the basis of strict judicial authorization within the parameters of the section.

THE AUTHORIZED ACTIVITIES

[33]        Para. 5 of the warrant authorizes the police officers:

“. . . to surreptitiously enter and search the property and outbuildings . . .

. . . for the purpose of video-taping and/or photographing any structure, vehicle and equipment used on the said property . . . to gather evidence relating to the criminal offenses . . .

[34]        Para. 6(b) directs the officers to:

. . . retain in his/her custody all photographs and video tapes pending their production into evidence of a court of law.

[35]        It seems clear that what purports to be authorized in this case is not the use of any “technique, procedure, or device” to gather information and certainly not the installation of a camera or a tracking device but plain and simply the gathering of evidence.  The use of the video camera taken onto the property by the officers did little but supplement their observations and, in reality, did little of that.

[36]        The two individuals observed on the property are not recorded because of Cpl. Vinet apparently accidentally turning the camera off at the critical moments.  Although the pickup truck is video-taped, it is taped at a distance that does not seem to allow one to view the licence plate and the camera was off when the vehicle with the two men drove past the officers surveillance position.

[37]        In my view it is unnecessary to proceed with an analysis at this stage of the material within the information to obtain and the submission made by the defense concerning that material.  The general warrant in this case is defective for a number of reasons and those defects are fatal to the validity of the warrant.

[38]        Specifically - -

1)    there is no authority or justification for the purported authorization of a “surreptitious entry”;

2)    the warrant, on its face, purports to give to the police power greater than that provided in s. 487.01;

3)    there is no authority for issuing a warrant under s. 487.01 without specific terms detailing the required notice period and terms;

4)    the authorized activities in this case amounted to little more than the gathering of evidence believed to be present, and

5)    the circumstances do not and cannot satisfy the requirements of s. 487.01(1)(c).

[39]        As a result of the invalidity of the warrant, the entry and search of the property by Cpl. Vinet, Cst. Collister and Cst. Parmar on September 7, 2000 was unlawful.

SECTION 24(2) ANALYSIS

[40]        The next issue to be determined is whether the evidence obtained as a result of the unlawful search on September 7, 2000 is inadmissible under s. 24(2) of the Charter.  In R. v. Collins[6], the Supreme Court of Canada held that determining whether the admission of evidence would bring the administration of justice into disrepute, a court must consider all the circumstances in relation to three main factors - -

1)    the fairness of the trial;

2)    the seriousness of the breach;

3)    whether the administration of justice would be brought into disrepute in the event the evidence was excluded.

[41]        Lamer J. (as he then was) broke these three factors down into a series of specific questions:

a)    What kind of evidence was obtained?

b)    What Charter right was infringed?

c)    Was the Charter violation serious or was it of a merely technical nature?

d)    Was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?

e)    Did it occur in circumstances of urgency or necessity?

f)    Were other investigatory techniques available?

g)    Would the evidence have been obtained in any event?

h)    Is the offence serious?

i)    Is the evidence essential to substantiate the charge?

j)    Are other remedies available?

[42]        In R. v. Stillman[7] the test laid down in Collins was further refined by holding that in determining the fairness of the trial the court must consider whether the evidence was conscriptive or non-conscriptive.  Non-conscriptive evidence, by its nature, will not render the trial unfair.  If the evidence is non-conscriptive the court must go on to consider the seriousness of the breach and the effect the exclusion of that evidence would have on the repute of the administration of justice.

[43]        In this case the entry of the property on September 7, 2000 resulted in observations which were recorded in paras. 24, 25 and 26 of an expanded information to obtain.  As a result of the information to obtain the officers were issued a search warrant under s. 11 of the Controlled Drug and Substances Act.

[44]        The officers’ observations and the evidence gleaned from their entry onto the property on September 7, 2000 was obviously non-conscriptive.  The evidence was real evidence which existed irrespective of the breach.  In my view, the breach and the defects in this case are serious.  The police officers were extremely careless in not fully informing themselves of the requirements of a general warrant and taking advice with respect to it. The fact is that s. 487.01 was enacted to provide the police with expanded powers of investigation. In granting those expanded powers parliament recognized the existence of privacy and property rights and enacted a procedure designed to provide some level of protection for them.  Rather than follow-up with conventional investigative techniques the police here chose to proceed with a general warrant in circumstances when its use and availability was questionable.  The warrant itself was defective in critical ways and the language within it as well as the notice provision fail to comply with the section.  The delivery of a copy of the general warrant to the accused’s wife six days after their entry does not cure the defect in the notice provision of the warrant.

[45]        The officers’ evidence and observations on September 7, 2000 must be excluded under s. 24(2).

“W.G. Parrett, J.”
The Honourable Mr. Justice W.G. Parrett