R. v. Beren and Swallow

R. v. Beren and Swallow

After excising the evidence obtained by trespass, the remaining reliable circumstantial evidence (notably unusually high and sustained electricity consumption for the detached garage, recent purchases of equipment consistent with a grow operation, physical alterations to the garage and third‑party observations)...

Source-derived case information.

Citation
2005 BCSC 1633
Parties
Crown: Regina; Accused: Mathew David Beren; Accused: Michael Andrew Swallow
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
23 November 2005
Procedural Posture
Criminal Controlled Drugs and Substances Act / Voir Dire (warrant Admissibility)
Outcome
Search warrant upheld; evidence seized pursuant to the warrant admissible; voir dire dismissed
Legal Topics
Search Warrant Validity, Section 8 Charter (unreasonable Search), Section 24(2) Charter (exclusion of Evidence), Police Trespass and Good Faith, Use of Electricity Records as Indicia of Grow Operations
Source Language
english
Criminal Law Constitutional Law Search and Seizure Evidence Law Search Warrant Validity Section 8 Charter (unreasonable Search) Section 24(2) Charter (exclusion of Evidence) Police Trespass and Good Faith +1 more

Source-derived case record

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Parties

Regina

Crown

Mathew David Beren

Accused

Michael Andrew Swallow

Accused

Procedural Posture

Criminal Controlled Drugs and Substances Act / Voir Dire (warrant Admissibility)

Legal Issues

  1. 1 Whether, after excising information obtained by police trespass and any misleading material, the remaining information provided reasonable and probable grounds to issue the search warrant
  2. 2 Whether the evidence seized pursuant to the warrant should be excluded under s.24(2) of the Charter due to the earlier trespass by police
  3. 3 Whether the police trespass was made in good faith such that exclusion is not required

Ratio Decidendi

After excising the evidence obtained by trespass, the remaining reliable circumstantial evidence (notably unusually high and sustained electricity consumption for the detached garage, recent purchases of equipment consistent with a grow operation, physical alterations to the garage and third‑party observations) provided reasonable and probable grounds for issuance of the warrant; the police trespass was inadvertent and made in good faith and therefore exclusion under s.24(2) was not justified; the real evidence seized pursuant to the valid warrant is admissible.

Court Disposition

Search warrant upheld; evidence seized pursuant to the warrant admissible; voir dire dismissed

Orders

  • Search warrant issued by Honourable Judge Palmer is validated
  • Real evidence obtained under the search warrant is admissible at trial