R. v. Nguyen

R. v. Nguyen

After expunging the unverified Hydro meter observation and amplifying the ITO to record the tip as a 'possible' grow op and the sound as 'consistent with one or more fans', the remaining admissible information—the odour of bulk marihuana emanating from the accused's residence, covered basement windows preventing light inspection, the fan noise, and the police tip—constituted reasonable grounds for the justice to issue the search warrant; the warrant was therefore valid and the results of the search admissible. A subsequent breach of s.10(b) rendered any statements inadmissible but did not vitiate the warrant or the physical evidence.

Citation
2004 BCSC 1467
Parties
Crown: Her Majesty the Queen; Accused: Duc Van Nguyen
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
10 November 2004
Procedural Posture
Criminal / Voir Dire (pre Trial)
Outcome
Search warrant upheld; evidence from the search admissible; statements obtained in breach of s.10(b) inadmissible
Legal Topics
Search Warrant, Section 8 Charter, Section 10(b) Charter, Exclusion of Evidence, Drug Offences, Marihuana Grow Operation, Probable Cause, Affidavit Full and Frank Disclosure
Source Language
English
Criminal Law Constitutional Law Search and Seizure Evidence Search Warrant Section 8 Charter Section 10(b) Charter Exclusion of Evidence +4 more

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Parties

Her Majesty the Queen

Crown

Duc Van Nguyen

Accused

Procedural Posture

Criminal / Voir Dire (pre Trial)

Legal Issues

  1. 1 Whether the information to obtain (ITO) for the search warrant was full, frank and fair
  2. 2 Whether statements in the ITO were vague, misleading or insufficient to support reasonable grounds
  3. 3 Whether the police breached s.10(b) of the Charter and effect on admissibility

Ratio Decidendi

After expunging the unverified Hydro meter observation and amplifying the ITO to record the tip as a 'possible' grow op and the sound as 'consistent with one or more fans', the remaining admissible information—the odour of bulk marihuana emanating from the accused's residence, covered basement windows preventing light inspection, the fan noise, and the police tip—constituted reasonable grounds for the justice to issue the search warrant; the warrant was therefore valid and the results of the search admissible. A subsequent breach of s.10(b) rendered any statements inadmissible but did not vitiate the warrant or the physical evidence.

Court Disposition

Search warrant upheld; evidence from the search admissible; statements obtained in breach of s.10(b) inadmissible

Orders

  • Search warrant declared valid and not set aside
  • Physical evidence seized under the warrant admitted at trial