R. v. Truong

2011 BCSC 1483 R. v. Truong IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Truong, 2011 BCSC 1483 Date: 20110907 Docket: 25490 Registry: Vancouver Regina v. Van Dang Truong Before: The Honourable Mr. Justice N. Smith Oral Reasons for Judgment Counsel for the Crown P. Mann Counsel for the Accused N. L.Cobb Place and Date of Trial: Vancouver, B.C. July 6-8, 2011 Place and Date of Judgment Vancouver, B.C September 7, 2011 [1] THE COURT: The accused is charged with two offences under the Controlled Drugs and Substances Act, production of marihuana and possession of marihuana for the purposes of trafficking. He was arrested and charged after he was found to be the only person present in a house where police executed a search warrant and found what was clearly a marihuana growing operation. Following a voir dire, the accused seeks the exclusion of all evidence found in the search based on what he says was a series of violations of his Charter rights beginning with the process by which the search warrant was obtained and continuing through the search and arrest. [2] The search warrant was issued and executed on May 22, 2009. The property in question was a two-story house with an attached garage in Gibsons, B.C. On entering the house, police found a total of more than 500 marihuana plants on the lower level along with the fans, lights, and other equipment commonly found in grow-ops. The accused was arrested either in or as he was leaving a bathroom on the upper floor. [3] The accused alleges, first of all, a breach of his rights under s. 8 of the Charter to be secure from unreasonable search and seizure, and challenges the validity of the search warrant. The warrant was issued by fax by a judicial justice of the peace pursuant to the telewarrant procedure in s. 487.1 of the Criminal Code. It was based on an Information to Obtain prepared by Constable McNeil who at that time had been a member of the RCMP for about 10 months. [4] A search warrant is issued when a justice is satisfied based on the Information to Obtain that there are reasonable grounds to believe that the building to be searched contains evidence of the commission of an offence; s. 11 of the Controlled Drugs and Substances Act. My duty as the trial judge is to determine whether there was evidence on which the warrant could have been granted. I am not to substitute my view of that evidence for that of the issuing justice nor am I to pass judgment on the general quality or thoroughness of the police investigation that led to the warrant. Although further investigation may or may not have produced additional evidence or qualified the evidence that was obtained, the focus must be on the evidence that was actually put before the justice. I am also not to examine each piece of evidence in isolation, but to consider the information as a whole on a practical non-technical basis. That standard of review is established by a long line of authority including the decision of the Supreme Court of Canada in R. v. Araujo, [2000] 2 S.C.R. 992; and that of the B.C. Court of Appeal in R. v. Whitaker, 2008 BCCA 174. [5] The search warrant in this case was based primarily on Constable McNeil's evidence that she and other police officers had detected the odour of vegetative marihuana and determined that odour to be coming from the property in question. Although the ITO also referred to certain additional facts, I do not need to review them because, in my view, they added very little to the grounds for issuance of a warrant and would not, either individually or together, have amounted to reasonable grounds in the absence of the odour evidence. [6] The property in question was at 1119 Chaster Road in Gibsons. A map that was included in the ITO indicates that Chaster Road runs east to west. Number 1119 Chaster is on the south side of the street and to the west of the nearest intersection which is with Pratt Road. There are four other houses or lots between number 1119 and the intersection. Another street, Rosamund Road, runs parallel and to the south of Chaster. No lane separates the properties on the south side of Chaster from those on the north side of Rosamund. [7] Constable McNeil stated in the ITO that while on patrol during the evening of May 12, 2009, she detected the odour of vegetative marihuana in the area of the intersection of Pratt Road and Chaster Road. After getting out of her police car and walking along Pratt Road, she says she detected the smell about 30 metres south of the intersection with the wind blowing from the west at the time. In other words, she identified the odour as coming from the general direction of the subject property, but at that point had no evidence to identify any specific property as the source of the odour. Constable McNeil returned to the area with Constable McKenna about four hours later. The ITO describes their entry onto a vacant lot on Rosamund and the points at which they did and did not smell vegetative marihuana. [8] Six days later, in the early morning hours of May 19, 2009, Constables McKenna and McNeil returned to the area, this time accompanied by Constable Wiebe. Of the three officers, Constable McKenna was the most experienced having been on the force for approximately two years and having worked as a volunteer auxiliary constable for some time before that. The three of them entered onto the vacant lot on Rosamund and formed the opinion that the smell of marihuana was not coming from the property at 1110 Rosamund. They came to a fence that separated 1110 Rosamund from three properties on Chaster including 1119. Constable McNeil says they walked west along the fence,indicating they entered the property at 1110 Rosamund on that occasion, if that had not been done earlier, and found the smell to be getting stronger. Constable McNeil eventually jumped over the fence into the back yard of 1111 Chaster and walked along the fence separating that property from 1119. She stated in the ITO at paragraph 1.8(r): While walking south along the fence line to return to Constable McKenna and Constable Wiebe, I observed that the soffit on the garage had approximately one metre cut out at the southeast corner leaving a hole exposing the wood framework underneath. I stood on the fence in an attempt to position my head at the height of the soffit. I could detect a strong odour of vegetative marihuana at this position. [9] Although the ITO refers to Constable McNeil's observations of 1119 Chaster, she did not, in fact, confirm the address until she consulted maps and aerial photos on the regional district website. She initially prepared an ITO stating that based on that material, she and Constable McKenna determined, "That we were on 1119 Chaster." An application for a search warrant based on that ITO was rejected because that statement, in the opinion of the JJP, conflicted with Constable McNeil's statement that she had jumped over the fence into the yard next door. In response, Constable McNeil revised and resubmitted the ITO changing that reference to read: Constable McKenna and I determined that the property where the odour of vegetative marihuana was originating from was, in fact, 1119 Chaster Road. [10] The revised ITO also refers to the fact that the initial application was denied and draws attention to the change that was made in the paragraph noted by the JJP. However, another paragraph in the affidavit containing an identical reference to the officer's being "on" 1119 Chaster was not changed. The search warrant was granted by a different JJP than the one who had rejected the first application. [11] Defence counsel asks me to find that the police officers trespassed on 1119 Chaster in order to obtain evidence for the search warrant. Had they done so, it would have been a clear violation of the accused's rights under s. 8 of the Charter; see R. v. Kokesch, 61 C.C.C. (3d) 207. However, I am not persuaded that such a trespass occurred. It is true that the final ITO contained a reference to the officer's being on 1119, but a reading of those paragraphs detailing the actual movement of the officers does not indicate any entry onto the subject property, although they did enter onto the neighbouring properties. [12] Defence counsel points out that while investigating these properties in the dark, the officers had no information about the location of the property lines and says they had no way of knowing whether they were trespassing or not. I do not think they were obliged to conduct their investigation in the company of a surveyor and I find that it was reasonable for them to rely on the location of fences as indications of the property boundaries. [13] Turning to the issue of reasonable grounds, evidence of odour standing alone must be treated with some caution given its transitory and subjective nature, but can provide reasonable grounds in a proper case; see R. v. Maton, 2005 BCSC 330, at paragraph 39. In this case, there was evidence of the smell being detected on more than one occasion and from more than one vantage point. I particularly note Constable McNeil's evidence of the smell being detected from a position directly across the fence near an opening in the soffit of the subject house. [14] The test is whether there were reasonable grounds to believe marihuana was being grown in the house at 1119 Chaster, not whether there was at that stage proof beyond a reasonable doubt. I find that the evidence of the odour of vegetative marihuana and the efforts to identify its source provided reasonable grounds on which the search warrant could be issued in this case. [15] The accused alleges a further violation of his s. 8 rights in the manner of the police entry into the house which occurred approximately 90 minutes after the search warrant was received. Constables McNeil and McKenna and Corporal Newman approached the front door. Constable McNeil said she knocked on the door three times and stated, "Police." When there was no reply after about 15 seconds, Corporal Newman also knocked and announced. [16] Constable McNeil said that at some point she noticed a slight movement of the blinds in a window next to the door. When she mentioned that observation to Corporal Newman, he immediately used a battering ram to break open the door. On cross-examination, Constable McNeil agreed that the events at the door took place "within a few seconds." Corporal Newman said the information of the blinds moving indicated to him that someone was inside and that it would not be prudent for reasons of officer safety to stand outside any longer. He estimated that the time from Constable McNeil's first knock to his use of the battering ram was about 45 seconds. [17] In the absence of exigent circumstances, police executing a search warrant are required to knock first, announce their presence and purpose, and allow a reasonable time for any occupants to respond. In R. v. Cao, [2008] B.C.J. No. 181, Madam Justice Bruce said, and I quote from paragraph 25: Where there are no exigent circumstances justifying a dynamic entry, as in the circumstances of this case, the police are required to knock, announce their presence and their lawful purpose for entry, and allow a reasonable amount of time for a response by any occupants. She continued at paragraph 30: One of the underlying purposes of the "knock and announce" rule is to allow any occupants a reasonable period of time to permit entry to the police. In most cases, one or two minutes would clearly be sufficient time for an occupant to respond to a demand for entry. [18] In R. v. Tran, (10 November 2008), New Westminster X069686-2, (B.C.S.C.) a decision of Mr. Justice Crawford, he said at paragraph 57: There is a plain good reason for the knock and announce rule. It was interesting to me in reading the many cases that there is very little evidence as to harm occurring to the police. What the case law does seem to indicate is from time to time the surprised occupant of the house behaves incorrectly. They might have a television clicker in their hand, they might have a toy pistol; they might think it's a joke; and the occupants unwittingly then become exposed to police response. Most people, if they have the police knocking at the door will respond. It allows for the reasonable wait time for the police to then enter the house using such force as they consider necessary if there is no response. [19] In Tran, the use of the battering ram after only 30 seconds was found to be a serious breach of the "knock and announce" rule. In this case, the wait was at most 45 seconds according to Corporal Newman and on the evidence of Constable McNeil probably less than that. There could be no magic period of time after which forced entry is deemed reasonable in all cases and the police are not expected to execute a search warrant with a stopwatch in hand. What is reasonable will depend on the circumstances of each case including the nature of the property and the amount of time an occupant might need to come to the door. In that regard, it is significant that this was a two-story house which, in itself, may require a longer wait for a response than would a smaller house. [20] Corporal Newman's evidence was that he acted quickly based on Constable McNeil's statement that she had seen the blinds move which indicated the presence of someone inside the door. Given the importance of that fact in determining the manner of entry, it is troubling that there is nothing about it in Constable McNeil's notes. This court has stressed the importance of police notes in assisting the court to determine what occurred. For instance, in R.v. Truong, 2010 BCSC 1956, Mr. Justice Stewart said: The rule of law demands that the police recognize the fact that they operate within a world overlaid with the provisions of the Charter and that they must, wherever possible, take reasonable steps so that on some date in the future a court may, if necessary, be in a position to apply the law to the facts of the case, and not simply to their conclusory opinion. [21] The evidence of the blinds having moved in a window beside the front door is also inconsistent with the fact that when entry was made, the only occupant of the house was found upstairs. Corporal Newman said he was concerned about the general risks inherent in grow-op raids, such as the possible presence of weapons or booby traps. The police had no information to indicate any risk associated with this property. They had not, for example, engaged in surveillance prior to executing the warrant. [22] In R. v. Vadon, [2000] B.C.J. No. 208, Mr. Justice Williamson said at paragraph 21: To attempt to justify the routine use of a battering ram to violate, unannounced, a private residence on the grounds that there have been weapons found in some homes where there have also been marihuana grow operations does not come close to meeting the onus upon the police to show why they concluded such force and surprise were necessary in a particular entry. [23] Also in R. v. Mai, 2005 BCSC 29, Mr. Justice Joyce said at paragraph 57: It is not, with respect, sufficient for the police merely to chant the mantra "officer safety" without some basis being shown to support it. [24] On all of the evidence, I conclude that the police in their eagerness to execute the warrant treated the "knock and announce" rule as a formality to get out of the way as quickly as possible rather than as a sincere attempt to give any occupants a reasonable opportunity to respond and cooperate. It was, therefore, a breach of the accused's s. 8 Charter rights. [25] The accused was arrested and handcuffed as soon as he was found on the upper floor of the residence. His counsel argues that was a breach of his right under s. 9 of the Charter to not be arbitrarily detained or imprisoned. I do not accept that submission. By the time police encountered the accused, they had clearly seen that the house was being used as a marihuana grow-op and no one other than the accused was found to be present. In the circumstances, I find that was sufficient to constitute reasonable grounds for arrest under s. 495(1) of the Criminal Code. [26] After the accused was placed under arrest, Constable McKenna read him his Charter rights from the standard police card. There was some uncertainty about how much the accused understood, but when asked if there was a lawyer he wished to contact, the accused clearly stated the name "Cobb." Mr. Cobb was counsel for the accused before me and there is no reason to doubt that is who the accused was referring to. Constable McKenna turned the accused over to Constable Ellerbrok who took him to the police station. There is no evidence that Constable McKenna told Constable Ellerbrok or anyone else of the accused's request to speak to a specific lawyer. At the police station, the accused was eventually put into telephone contact with a Legal Aid lawyer and a Vietnamese interpreter. This occurred more than 90 minutes after his arrest. Therefore, although the accused was given an opportunity to consult counsel, his clear request to speak to a specific lawyer was ignored. I find that to be a significant breach of his rights under s. 10(b) of the Charter. [27] By the time the accused asked to speak to Mr. Cobb, the physical evidence of the grow-op had already been discovered and there is no evidence of any statement made by the accused either before or after he was put in contact with Legal Aid. There is, therefore, no direct causal link between the breach of his s. 10(b) rights and the obtaining of any evidence. However, there is a close temporal link in that the breach occurred during a search which was itself unreasonable due to the manner of entry. [28] The situation is therefore comparable to what was before the Court of Appeal in R. v. Bohn, 2000 BCCA 239. In that case, the police failed to produce a copy of the search warrant on request contrary to s. 29 of the Criminal Code, then told the accused he would not be permitted to contact counsel until he had been taken to the police station. Madam Justice Ryan said at paragraph 41: The trial judge was correct in noting that no statements (of any importance) were made as a result of the s. 10(b) breach. But, with respect, that did not end the matter. The s. 10(b) breach occurred while the police were conducting a search of the appellant's home. The temporal link between the s. 10(b) breach and the discovery of the "real" evidence was sufficient to drive the trial judge to the conclusion that the fruits of the search had been obtained in a manner that infringed the Charter. Thus, the s. 10(b) breach should have been considered by the trial judge when determining whether the admission of the evidence could bring the administration of justice into disrepute under s. 24(2) of the Charter. [29] I am not going to deal with the accused's submission of a further breach arising from the fact he was fingerprinted and photographed shortly before he was formally charged and released on a promise to appear. That sequence of events does appear to have been contrary to s. 2 of the Identification of Criminals Act which permits photographs and fingerprinting of a person who is "in lawful custody charged with or convicted of" an indictable offence. However, those events in this case occurred more than five hours after the accused's arrest and have no connection either causal or temporal with any of the evidence the Crown relies on. [30] I have, therefore, found two significant breaches of the accused's Charter rights, the lack of adequate warning before a forced entry and the denial of his right to speak to counsel of his choice. The question then becomes whether those breaches require exclusion of the evidence under s. 24(2) of the Charter. The evidence is to be excluded if its admission would bring the administration of justice into disrepute. [31] In R. v. Grant, the Supreme Court of Canada said at paragraph 68: The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. [32] In determining that issue, Grant makes clear that the court must consider and balance three factors, the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and society's interest in the adjudication of the case on its merits. On the first question, the Supreme Court of Canada in Grant pointed out at paragraph 74 that state conduct resulting in Charter violations varies in seriousness, At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [33] Here, we have a forcible entry into a private dwelling house without proper notice. Any unreasonable forced entry into a private dwelling is a serious breach of a Charter right, although in this case, it might also be characterized as technical in that the police did have a valid warrant and the breach involved only a failure to wait for an additional minute or so. But in my view, any uncertainty about the seriousness of that breach standing alone disappears when it is combined with the breach minutes later of the accused's right to retain and instruct counsel of his choice under s. 10(b). Although the police went through the motions of informing the accused of his right to counsel, they paid no attention to the substance of his response and the manner in which he wished to exercise that right. The combination of those two violations places this case closer to the more serious end of the spectrum referred to in Grant. [34] On the second branch of the inquiry, the court in Grant said at paragraph 76: The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. Again, we are dealing with an improper entry into a dwelling house in which the accused had a high expectation of privacy combined with an interference with his right to counsel. Those protected rights are fundamental and I find they were seriously undermined. Consideration of only the first two Grant factors would support the exclusion of the evidence. [35] The third factor, society's interest in the adjudication on the merits, looked at in isolation, would obviously favour its admission. The offences charged are serious and many decisions of this court and others have referred to the harm that marihuana grow operations do to the neighbourhoods and communities in which they are located. Exclusion of the evidence will likely leave the Crown with no case against the accused. However, in R. v. Harrison, the Supreme Court of Canada said at paragraph 40: As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis "would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means'" Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences. [36] In this case, I have found the police took what can best be called a casual approach to the accused's rights under the Charter, doing the minimum necessary to honour them in form while effectively ignoring them in substance. The long-term effect of condoning such an approach would, in my view, have a more serious negative impact on the administration of justice than would the exclusion of evidence in this particular case. Balancing the considerations set out in Grant and considering the authorities, I am driven with some reluctance to the conclusion that admission of the evidence would bring the administration of justice into disrepute. On that point, I quote again the words of Mr. Justice Stewart in Truong: The fact that the result of the suppressing of the evidence will be that a man who was not only caught cold but confessed to committing the offence while in the witness box will be acquitted is simply the short-term price that must be paid for the long-term maintenance of the rule of law. [37] In the result, the evidence obtained in the search of the property must be excluded. [38] MR. BICK: Thank you, My Lord. I am instructed by Ms. Mann that there is no further evidence in this matter. [39] THE COURT: All right. [40] MS. LEWIS: We ask for the case to be dismissed -- [41] THE COURT: Yes. [42] MS. LEWIS: -- on the basis of no evidence. [43] THE COURT: The case, accordingly, against Mr. Truong is dismissed. "N. Smith J."