IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. Kostecki,
	2008 BCSC 551

Date: 20080502
Docket: 49822-2
Registry: Chilliwack

Between:

Regina

And

Jason Anthony Kostecki

Before:  The Honourable Mr. Justice Truscott

Ruling on Voir Dire

Counsel for the Crown:	S. Price
Counsel for the defence:	G.J. Harris
Date and Place of Trial/Hearing:	March 27 and 28, 2008
	Chilliwack, B.C.

[1]                Mr. Kostecki stands charged with one count of possession of marihuana for the purpose of trafficking and one count of unlawfully producing the drug.

[2]                He challenges the search and seizure of the marihuana on the basis that it was a violation of his Charter rights under s. 8 to be secure against unreasonable search or seizure.

[3]                On November 20, 2003, Mr. Trustham, the bylaw enforcement officer for the District of Mission, attended the premises at Unit 36-32929 Mission Way, for the purpose of inspecting the premises to determine if any business was operating at those premises that required a business licence.

[4]                Mr. Trustham was operating under the authority of the Business Licence Bylaw of the District of Mission that authorized him as a licensed inspector to enter any land, building or other place at any reasonable time for the purpose of ascertaining whether the regulations and provisions of the bylaw, including the necessity for a business licence, were being complied with.

[5]                Unit 36 was an industrial warehouse unit, one of many that were part of an industrial warehouse strata complex.  The business licence for the previous year 2002 had been issued for that unit in the name of Metal Mountain Enterprises, but it had not been renewed for 2003.

[6]                Mr. Trustham arrived at the unit at approximately 2:40 p.m. on November 20, 2003.  The unit had two doors to it, one a typical person door and the other a garage door.  The unit inside consisted of an office area to one side and a garage area beside it.

[7]                Mr. Trustham says he could not see into the windows as something was covering them.  He knocked on the person door twice and a man appeared after a second knock which he believes was Mr. Kostecki.  The name Metal Mountain Enterprises was still printed on the door and Mr. Trustham asked Mr. Kostecki if it was still operating there.  Mr. Kostecki replied that it was not and Mr. Trustham asked if there was any other business operating there as he was the bylaw enforcement officer checking on business licenses.

[8]                Mr. Kostecki stated that he was there with friends working on cars and Mr. Trustham asked him if he could come in and see what they were doing.

[9]                Mr. Kostecki replied that he would check with his friends inside but he thought it would be okay.

[10]            Mr. Kostecki went back into the building and Mr. Trustham says he waited outside.  After approximately 15 minutes of waiting Mr. Trustham began to wonder about his own safety.  Fifteen minutes for Mr. Kostecki to talk to his friends was a long time and he had been told there were other males inside.  He could not see inside and he concluded it probably was not the safest situation for him to inspect on his own.  He wanted to do an inspection and if there was another authorized business there to require a licence or if the business was unauthorized to so advise the occupants.  Automotive repair was not an authorized business by the zoning.

[11]            Mr. Trustham was worried that if he proceeded with an inspection by himself no one else could see inside the unit and his safety might be compromised.

[12]            As he had done in the past from time to time, Mr. Trustham contacted the Mission detachment of the RCMP and asked if an officer could be sent to ensure the peace.

[13]            Roughly ten or 15 minutes later after he had made this telephone call, Cst. Bali of the RCMP arrived.

[14]            Mr. Trustham says that before Cst. Bali arrived he had banged on the door a couple of times and Mr. Kostecki had returned.  Mr. Kostecki said he had spoken to the other guys and they were busy building a mezzanine.

[15]            Mr. Trustham knew a building permit would be needed for construction of a mezzanine and he had concerns about fire and safety issues.  He told Mr. Kostecki that he would like to inspect the mezzanine.

[16]            Mr. Kostecki seemed to be deliberately vague and said he was putting a mattress in for a place to reside.  That also was an unauthorized use and it appeared to Mr. Trustham that Mr. Kostecki was avoiding providing access to him without directly saying so.

[17]            Mr. Trustham told Mr. Kostecki that he had the authority to inspect.  It was at that point Cst. Bali arrived and when he did Mr. Trustham says he told Mr. Kostecki that Cst. Bali was there just to keep the peace but he had the authority to inspect and intended to.

[18]            According to Mr. Trustham, Mr. Kostecki did not say ‘yes’ or ‘no’ to this request but turned around and swung the door open and Mr. Trustham and Cst. Bali walked in behind him.

[19]            Cst. Bali says he also does not recall Mr. Kostecki saying anything before he opened the door and walked through.  He says he followed into the office area through the door to keep the peace if anything happened inside.  He agrees he had no reason at that point to keep the peace as Mr. Kostecki displayed no animosity but he was concerned that might change.

[20]            In cross-examination however Cst. Bali was directed to his evidence on preliminary inquiry where he said that when Mr. Trustham asked Mr. Kostecki if he could do his inspection now that the police were present, Mr. Kostecki indicated “no”.  He confirms this evidence and confirms that at no time did Mr. Kostecki give him consent to come into the unit.

[21]            Cst. Bali says that he does not think he had any statutory authority to go inside.  When he did go inside he stayed by the front door while Mr. Kostecki and Mr. Trustham went towards a transport trailer that was parked inside approximately 15 to 20 feet away from the front door.  There was no other business activity apparent in the unit and no one else present.

[22]            Cst. Bali says that Mr. Trustham asked Mr. Kostecki if he could look inside the trailer and Mr. Kostecki asked if they had to.  Mr. Trustham said he wanted to look inside to make sure there was no business being run inside the trailer.

[23]            Mr. Trustham recalls asking Mr. Kostecki if all three of them could look inside as he expected Cst. Bali would stay with him as he moved around.  He says Mr. Kostecki muttered something but he did not catch what he said and then Mr. Kostecki walked to the back of the trailer and opened it.

[24]            Mr. Trustham says he looked in the trailer but it was too dark in that area to see anything.  He asked Cst. Bali to shine his flashlight into the trailer.  Cst. Bali came over from his position by the front door and shone his flashlight into the trailer.

[25]            Cst. Bali says he did not give Mr. Trustham his flashlight to use, rather than use it himself, because he never lets go of his tools.  When he shone the flashlight into the trailer he discovered a marihuana grow operation in progress.  Up to that point in time he had no indication whatsoever of this operation.

[26]            Cst. Bali immediately arrested Mr. Kostecki and read him his Charter rights.  This was at approximately 3:12 p.m.  Cst. Bali arranged for another officer to transport Mr. Kostecki to detachment while he remained at the scene for security purposes without searching further.  When another officer arrived and the unit was secured Cst. Bali returned to the detachment and prepared his information to obtain a search warrant.

[27]            Cst. Bali submitted his ITO for a search warrant for the premises at 6:15 p.m. by fax and received an executed warrant at 6:20 p.m.

[28]            In his affidavit in support of the ITO Cst. Bali said his presence was to assist the bylaw officer in the execution of his duty, that his duty was to keep the peace and protect the wellbeing of the bylaw officer.

[29]            In his affidavit he also recited that the male occupant was reluctant to give access to the unit, that Mr. Trustham explained to the male that he had legal authority to enter the building and inspect it, and that the male then gave verbal consent for access to the unit.

[30]            Cst. Bali received a warrant to enter the unit to seize the trailer and marihuana grow operation contained therein.  This he did subsequently.

[31]            Mr. Kostecki was lodged in the police cells after his arrest and Cst. Bali says he showed Mr. Kostecki a copy of the warrant shortly after he received it before he returned to the unit to remove the trailer and marihuana grow operation.

[32]            Cst. Bali did not release Mr. Kostecki on a Promise to Appear until approximately 9:00 a.m. the following day, November 21, 2003, although the Promise to Appear was available at approximately 8:00 p.m. the night before.  Cst. Bali has no idea why Mr. Kostecki was not released the night before.  Mr. Kostecki was his prisoner but other officers were entitled to deal with Mr. Kostecki.  He says that when he released Mr. Kostecki he asked him if he had spoken to legal aid and Mr. Kostecki said he had, although he did not say when he had.

Analysis

[33]            A bylaw officer does not need consent to enter premises for the purpose of ascertaining compliance with the bylaws, if the bylaws authorize such entry.  The bylaw officer does not need a search warrant as the entry does not violate protection against unreasonable search and seizure covered by s. 8 of the Charter.

[34]            Here Mr. Trustham was given the authority to enter at any reasonable time by the bylaw and the bylaw itself does not offend s. 8.  (See R. v. Bichel (1986), 29 C.C.C. (3^rd) 438 (B.C.C.A.))

[35]            Here Mr. Trustham sought to inspect for bylaw compliance at a reasonable time and his actions did not offend s. 8.

[36]            The issue of Cst. Bali also entering, without a warrant, is a little more cloudy.  Cst. Bali admits that Mr. Kostecki verbalized his denial of entry to both he and Mr. Trustham.  That denial did not affect Mr. Trustham’s right to enter to inspect for bylaw compliance but the issue is whether Cst. Bali had any authority to enter without a warrant.

[37]            Cst. Bali says in his evidence that he did not have any statutory authority to enter but he says he entered as part of his responsibility to keep the peace if anything untoward happened during Mr. Trustham’s inspection inside.  The question is whether that gave Cst. Bali any authority to enter without a search warrant regardless of Mr. Kostecki’s lack of consent.

[38]            I conclude that Cst. Bali had the right to enter to ensure the peace while Mr. Trustham performed his duties.  Whether his authority came from statutes directly or from the general duties of a police officer to keep the peace, I am satisfied that he had that authority to enter for that purpose.

[39]            When Cst. Bali was inside he had no warrant authority to search or seize anything and the issue then becomes whether or not as a police officer he was in breach of s. 8 of the Charter in searching the trailer without a warrant, or whether he was not acting in any capacity as a police officer when he searched the trailer with his flashlight, but was rather acting only as Mr. Trustham’s assistant in carrying out Mr. Trustham’s duties as the bylaw officer.

[40]            There is no doubt that Cst. Bali did not have Mr. Kostecki’s consent to search the trailer.  At most it was passive acquiescence given by Mr. Kostecki to Mr. Trustham to inspect the trailer.

[41]            If Cst. Bali was entitled to be in the unit with Mr. Trustham to keep the peace and Mr. Trustham had used Cst. Bali’s flashlight and discovered the marihuana grow operation himself, he would likely have reported that to Cst. Bali standing by and Cst. Bali would have had grounds to arrest Mr. Kostecki and grounds for a search warrant.

[42]            As it was, it was Cst. Bali who discovered the marihuana grow operation himself and then arrested Mr. Kostecki.

[43]            I conclude that Cst. Bali overstepped his authority as a police officer in searching the trailer with his flashlight.  He did not say in his evidence that he was doing so as part of his responsibility to ensure the peace.  The only evidence is that he did this at the request of Mr. Trustham to assist in his inspection of the trailer.

[44]            I conclude that Cst. Bali breached Mr. Kostecki’s rights under s. 8 of the Charter to be free of unreasonable search of the trailer.

[45]            The only reason given by Cst. Bali for not giving the flashlight to Mr. Trustham to use was his policy of not lending out his tools.  He was not challenged on this evidence with any suggestion that he had any ulterior motive in looking himself, so I accept his reason as given.

[46]            Since the subsequent search warrant was based substantially on the grounds of Cst. Bali’s own observation of the marihuana grow operation in the trailer, and as I have determined that the search violated Mr. Kostecki’s rights under s. 8, the warrant must be set aside.

[47]            Accordingly, both the search and seizure violated Mr. Kostecki’s s. 8 rights.

[48]            I turn next to a consideration of s. 24 of the Charter.

[49]            Section 24(1) gives Mr. Kostecki the right to apply to have the evidence of the marihuana grow operation excluded from the evidence at trial.

[50]            Section 24(2) requires the court to exclude the evidence if it is satisfied that the admission of it in the proceedings would bring the administration of justice into disrepute.

[51]            The circumstances to be considered under s. 24(2) fall into three categories:  (1) the effect of admitting the evidence on the fairness of the subsequent trial; (2) the seriousness of the breach and; (3) the effect of admitting the evidence on the reputation of the administration of justice.

1.  The effect of admitting the evidence on the fairness of the subsequent trial

[52]            The concept of trial fairness is concerned with the right against self-incrimination of an accused, so that conscriptive evidence where an accused is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples is generally considered to affect the fairness of the trial, while non-conscriptive evidence which existed independently of the violation of the Charter will not affect adjudication fairness.

[53]            Here the evidence of the marihuana is non-conscriptive evidence that would not affect the fairness of the trial and as a consequence is not excluded on that basis.

2.  The seriousness of the Charter violation

[54]            This issue concerns whether the violation was committed in good faith, was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant.  The obtrusiveness of the search and the individual’s expectation of privacy in the area searched are also to be considered.

[55]            Here there is no suggestion that Cst. Bali acted in bad faith in shining his flashlight into the trailer without a search warrant.  He did that to aid the bylaw officer in doing his inspection.  It was an inadvertent or merely technical breach of s. 8 when Cst. Bali could have obtained the same information from Mr. Trustham if he had given the flashlight to Mr. Trustham to use, because undoubtedly Mr. Trustham would have informed Cst. Bali of what he saw by use of the flashlight.

[56]            I also do not consider that Mr. Kostecki had any significant expectation of privacy in the unit or in the trailer.  This was an industrial unit, and residency was not authorized by the applicable zoning and although there was evidence of accommodation such as a mattress, chairs, a couch, TV and stereo, according to Mr. Trustham, Mr. Kostecki had told him that he was putting in a mattress to be able to reside there so that on that evidence it was not yet his residence.

[57]            In any event a transport trailer could not be considered by anybody’s imagination to be part of a residence.

[58]            Counsel submits that bad faith on the part of Cst. Bali is shown by the fact he allowed Mr. Kostecki to languish in the cells over night when there was no apparent reason to do so and when the Promise to Appear was ready at 8:00 p.m. the night before.

[59]            Cst. Bali could not answer why this was allowed to happen.  I am unable to conclude, however, that it was as a result of bad faith on the part of the police.  My sense from Cst. Bali’s evidence is that he simply could not remember back to 2003 why this happened.

[60]            In any event, it is a matter that is completely unconnected to the obtaining of the marihuana evidence, which is the subject of the Charter issue.

[61]            Counsel also questions at what time Mr. Kostecki was entitled to contact counsel, but there was no answer to that question in the evidence and no basis for imputing any improper conduct on the part of the police in that regard.

[62]            I conclude the Charter violation was not serious in all the circumstances covered by the evidence.

3.  The effects of admission on the administration of justice

[63]            In this category the seriousness of the offence and the importance of the evidence to the case for the Crown are to be considered.

[64]            Possession of a marihuana grow operation for the purpose of trafficking and the unlawful cultivation of it are serious offences in this society where drug use is becoming a bigger problem every day.

[65]            The marihuana evidence is undoubtedly crucial to the Crown’s case against Mr. Kostecki.

[66]            I conclude that the admission of this evidence at trial would not bring the administration of justice into disrepute.

[67]            The marihuana evidence is therefore admissible at trial.

“Truscott J.”