R. v. Grant

2005 BCSC 1792 R. v. Grant IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Grant 2005 BCSC 1792 Date: 20050428 Docket: 23352 Registry: Vancouver Regina v. Kerry Allen Grant Before: The Honourable Mr. Justice Wong Ruling on validity of search warrant and admissibility of evidence seized on Voir Dire April 28, 2005 Counsel for the Crown: E.W. Froess Counsel for the Accused: R.C. Reid Place of Trial: Vancouver, B.C. [1] THE COURT: The accused, Kerry Allen Grant, is charged on a two count indictment alleging possession of cannabis marihuana in an amount exceeding three kilograms for the purpose of trafficking and unlawfully producing cannabis marihuana. The dates for both counts refer to January 18, 2004, at North Vancouver. [2] An expanded voir dire review was conducted regarding the validity of the search warrant used to enter commercial premises leased and controlled by the accused for which a marihuana grow operation was found. Two issues were raised: 1. Whether the warrant was obtained by telecommunication in circumstances in which it was not impracticable for the peace officer to attend in person before a justice; 2. Whether the Information to Obtain before the justice was insufficient to support the issuance of the warrant. The defence argues that it is full of misleading and incomplete information of little probative value. 1. The Telecommunication - The Telewarrant Issue [3] The deponent in the Information to Obtain was Constable Cheryl Thomas of the North Vancouver RCM Police. [4] The police, having commenced an investigation one-half hour after receiving an anonymous tip that a marihuana grow operation may be found at 182 Pemberton Avenue, attended and examined the building exterior and the interior common area of the premises. This was Saturday, January 17, 2004, at 1:30 p.m. [5] Constable Thomas, having completed her investigation, returned to the police detachment at 5:00 p.m. to prepare her Information to Obtain. [6] An application for a telewarrant by fax to a duty Justice of the Peace in Surrey, pursuant to s. 487.1 of the Code, was applied by Constable Thomas at 1:10 a.m., Sunday, January 18, 2004. The reason given for impracticability to appear personally before a Justice was no presiding judge available on the weekend. [7] In light of the fact that urgency and/or exigent circumstances are not prerequisites to a telewarrant under the legislation, the only question is whether the justice was satisfied that there were reasonable grounds for dispensing with an Information presented personally. [8] The evidence presented in the voir dire disclosed that generally after court hours and on weekends no Justices of the Peace are on duty in North Vancouver, except at justice centres in the Lower Mainland designated by the Chief Judge of the Provincial Court. [9] Geographic distance, lengthy driving time and need to secure the targeted premises being investigated by the police clearly required resort to telewarrant applications. [10] Recent case authorities of this court such as R. v. Phillips, (February 16, 2004) New Westminster Registry No. X062230, a decision of Justice Bernard, and R. v. Martens, [2004] B.C.J. No. 2300, 2004 BCSC 1450, 2004 BCSC 1470 Addendum, a decision of Justice Davies, have upheld telewarrants obtained under similar circumstances as in the case at bar. [11] The test for impracticability under s. 487.1 means something less than impossible and imports a large measure of practicability and what might be termed as common sense. [12] Clearly, in this case, considering the time and place where Constable Thomas was during her ongoing investigation, immediate access to a judicially authorized search warrant process was required. Accordingly, the Justice was justified in not requiring personal presentation of the Information by Constable Thomas and was entitled to proceed by fax to telecommunication format. 2. The Sufficiency of the Contents of the Information to Obtain [13] The salient parts of the Information to Obtain are as follows: 12. On January the 17th, 2004, at approximately 1:05 p.m., Constable Johnk received the following information from a confidential source of unknown reliability, the identity of whom cannot be revealed for security reasons ("Source A"). Source A has not provided information in the past that has resulted in searches or seizures of controlled drugs and substances. Source A does not have a criminal record. Source A's motivation in providing information was as a concerned citizen. Constable Johnk was advised by Source A that: (a) There was a possible marihuana grow operation at 182 Pemberton Avenue by a tenant at that location; and (b) Source A has smelt the strong odour of marihuana lingering in the hallway of the building. 13. On January 17, 2004, at approximately 1:30 p.m., Constable Johnk attended to the hallway connected to 182 Pemberton Avenue and made the following observations: (a) There was a strong odour of fresh growing marihuana in the hallway of the second floor; (b) The odour became stronger as Constable Johnk approached the last door on the left-hand side of the hallway; (c) Constable Johnk could hear a humming noise coming from inside the glass door on the left-hand side of the hallway; (d) Constable Johnk then went to the first floor to look at the door which connected to this business; (e) This door contained a peephole; (f) Constable Johnk noted a large pile of construction debris outside the bay door; (g) Constable Johnk noted large pieces of very thick foam in this debris; and (h) Outside the first floor door with a peephole was a new white single-axle trailer bearing British Columbia licence plate 403670. 14. On January the 17th, 2004, at approximately 2:10 p.m., Constable Johnk spoke to R. Zirpke, the owner of the warehouse complex. R. Zirpke advised: (a) That the business associated to the last door on the left‑hand side of the hallway located on the second floor was identified as 3925 Investment Ltd.; (b) 3925 Investment Ltd. was doing business as First Flight Paragliding with a mailing address of 987 Premiere Street, North Vancouver, B.C.; (c) The owner/operator of the business was Kerry Grant; (d) Kerry Grant leases approximately 2200 square feet of warehouse and retail space designated as 182 Pemberton Avenue; (e) 3925 Investment Ltd. provided a post-dated cheque to cover rent; (f) The cheque was drawn from account no. 10-090-548-9 of the North Shore Credit Union, 110 Melville Street, Vancouver, B.C., V6E 4E6; (g) The lease document was signed for a term of three years commencing on May 2003; (h) Constable Johnk observed the lease document and believed the signature was made in the name of Kerry Grant; and (i) R. Zirpke described Grant as approximately 40 years of age, five feet, nine inches in height. 16. On January the 17th, 2004, at approximately 3:16 p.m., I accompanied Constable Johnk to the business located at 182 Pemberton Avenue. While there, I made the following observations: (a) I noted that the building was a two-story structure which contained multiple units; (b) These units were made up of various businesses, one of which was 182 Pemberton Avenue; (c) I proceeded to the electrical room, which contained hydro boxes for all units at that location; (d) In this room, I met R. Zirpke; (e) I noted the hydro meter for unit 182 was running faster than any other meter at that location; (f) There are approximately six hydro meters in this room; (g) I then proceeded to the second floor of the building; and (h) In the hallway on the second floor, I noted a strong and distinct odour of vegetative marihuana. 17. I then spoke with the owner of the warehouse complex, R. Zirpke, who stated that: (a) She has a three-year agreement with a tenant, Kerry Grant, of 182 Pemberton Avenue; (b) She advised that this three year agreement was for the unit which ran from the first to second floor; (c) This business was run by Grant and called "First Flight Paragliding"; (d) She advised that the door on the second floor where the odour of marihuana was emanating was connected to First Flight Paragliding; (e) Grant had changed locks on all doors and installed a peephole in the ground floor door; (f) Grant is associated to a green Windstar van; and (g) Grant has an investment company, 3925 Investment Ltd. It should be noted that the unit associated to First Flight Paragliding has the address of 182 Pemberton Avenue. The other units within this building have a separate and distinct numbered address. Therefore, any reference made in this my Information to Obtain is related solely to the unit belonging to First Flight Paragliding. During my investigation at this location, I did not enter or trespass onto any property associated to 182 Pemberton Avenue. 18. On January the 17th, 2004, at approximately 3:45 p.m., I re‑attended to the second floor to make further observations and noted that: (a) I conducted elimination processes whereupon I proceeded to each door in the hall and determined that the smell of vegetative marihuana was coming from the door belonging to First Flight Paragliding; (b) While standing by that door, I noted the low hum of what I believed to be a fan; and (c) As I was leaving, I confirmed the name on the door on the first floor was First Flight Paragliding. 19. I have been involved in the investigation of drug related offences throughout the past three-and-a-half years. I have attended to two indoor marihuana grow operations and I have made several street level seizures of partially smoked marihuana joints. As a result of my experience, I am able to recognize and differentiate the odour of vegetative marihuana and burnt marihuana. 20. On January 17, 2004, at approximately 5:00 p.m., surveillance was commenced on the building which houses 182 Pemberton Avenue. This surveillance has continued and will continue through the execution of this search warrant. 29. I have received training and instruction in the composition of indoor marihuana grow operations by attending a drug workshop presented by the North Vancouver RCMP drug section. In addition, I have conversed with RCMP officers who have experience in marihuana grow operations. From this knowledge base, I have found that a substantial amount of effort is usually applied to the construction of the grow area. Financial expenses are incurred for materials and physical modifications are often made to the residence to construct a healthy indoor growing atmosphere. I believe that the discarded foam observed outside of 182 Pemberton Avenue is consistent with the material used to insulate the walls or cover the windows for the marihuana grow operation. 30. In addition, unique construction is usually done to the interior of the grow rooms. Venting is installed and hydro wiring is adapted. For these reasons, indoor marihuana grow operations are usually a semi-permanent operation. Crops are continuously being propagated and vegetated. This allows for continuous operation, thus enabling the cultivator to have a perpetual supply of flowering marihuana plants. The operations are usually not moved unless discovered by the police, a landlord or otherwise. The changing of the locks and installing of the peephole is consistent with someone attempting to avoid detection of the marihuana grow operation. 31. That from my experience I have found that it is very common for cannabis marihuana to be grown in buildings. As a result, I have found that in order to grow marihuana indoors high intensity discharge lamps, usually 1000 watt lamps or similar wattage, fans, blowers, water pumps, air pumps, ionizers, dehumidifiers, air conditioners and heaters are normally used. This type of equipment requires a large amount of electricity and will cause a hydro meter to spin at a rapid rate. I believe that my observation at the hydro meter at 182 Pemberton Avenue was consistent with a large amount of electricity being used. The humming noise I detected at 182 Pemberton Avenue appeared to me to be originating from a large fan. This is consistent with a marihuana grow operation. 32. Based on all the foregoing information received from Source A, R. Zirpke, two police officers' observations of the foam insulation, the hydro meter, the humming noise and the distinct odour of vegetative marihuana relative to 182 Pemberton Avenue, which is associated to Kerry Grant, I have reasonable and probable grounds to believe and do believe that there is presently a cannabis marihuana grow operation within the business of First Flight Paragliding situated at 182 Pemberton Avenue in the District of North Vancouver, in the Province of British Columbia, contrary to s. 7(1) of the Controlled Drugs and Substances Act. Further, that recovery of the specified items will afford evidence with respect to the commission of the aforementioned offence. [14] Vigorous arguments by the defence were raised about the probative value of a spinning hydro meter pertaining to unit 182 without expert opinion interpretation or sinister interpretations about the accused changing locks and installing a peephole and the presence of foam insulation when their presence could equally infer a legitimate use. However, it must be remembered that these items are merely part of the whole contextual matrix. The definitive uncontroverted evidence was the presence of a strong and pronounced smell of vegetative marihuana emanating from behind the second floor hallway door of unit 182 together with the humming sound of a fan for which alone would justify the issuance of a valid search warrant. [15] Accordingly, the search warrant was valid and the evidence seized pursuant to it is admissible. "R.S.K. Wong, J." The Honourable Mr. Justice R.S.K. Wong