R. v. L.V.R.

2011 BCSC 1158 R. v. L.V.R. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. L.V.R., 2011 BCSC 1158 Date: 20110610 Docket: X073465 Registry: New Westminster Regina v. L.V.R. Ban on publication pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46 Before: The Honourable Mr. Justice Grauer Oral Reasons for Judgment on Voir dire Counsel for the Crown: M. Stacey Counsel for the Accused: L. A. Wall Place and Date of Hearing: New Westminster, B.C. June 6-8, 2011 Place and Date of Judgment: New Westminster, B.C. June 10, 2011 INTRODUCTION [1] The accused has pleaded not guilty to an indictment setting out 11 counts. Counts 1-3 allege sexual offences committed against MH, the daughter of the accused's former common-law partner, between September 1, 2003, and June 1, 2008. MH turned 16 in March of 2008. Counts 4-6 allege sexual offences committed on May 30, 2008, against DO, a person under the age of 16 who was a friend of MH. Count 7 is not relevant to this voir dire. Counts 8-10 allege firearms offences while counts 11 and 12 allege the making and possession of child pornography. [2] These charges stem from information that first came to light on June 2, 2008, when SH, the accused's former common-law partner, reported to the Surrey RCMP information e-mailed to her by DO concerning events that allegedly occurred on May 30, 2008. This led the police to interview, in short order, SH and MH, as well as a friend of MH, HH. DO was not immediately available. The interviews were conducted by Cst. Kerins, who had been a police officer for three years, and Cst. Cucheran, who had served for only one month. [3] On the basis of the information obtained from these interviews, Cst. Kerins did two things. She directed officers to arrest the accused on charges of sexual assault relating to events that allegedly occurred on May 30 and June 1, 2008. LVR was arrested at 7:42 PM on June 3. Cst. Kerins also applied for a warrant authorizing the police to search the accused's dwelling house in Surrey between the hours of 11:35 PM on June 3, 2008, and 5:00 AM on June 4, 2008, and to seize a number of items, including computers and any other devices capable of storing or recording digital photographs, any hardcopy photographs of MH, and firearms, believed to be long guns, registered to the accused, together with any ammunition. [4] Cst. Kerins swore an Information to Obtain the Warrant (ITO) on the evening of June 3, 2008, which was duly submitted to the judicial justice of the peace. It was the first ITO she had ever prepared. The JJP initially rejected the application on the ground that it did not set out grounds to justify a night search as required by section 488 of the Criminal Code, R.S.C. 1985, c. C-46. The ITO was then amended at the Justice Centre with grounds to support a night search being added in handwriting, and the ITO was re-sworn. [5] The JJP then issued the warrant at 12:07 AM on June 4, 2008, after striking out the reference to firearms and ammunition on the ground that no nexus had been provided as to how those items would afford evidence of the alleged offences, being sexual assault pursuant to section 271 of the Criminal Code committed on May 30 and June 1, 2008. [6] The search was carried out beginning shortly after the warrant was issued.. The computers and various digital storage devices were seized in accordance with the warrant. In addition, the officers who executed the warrant seized a number of firearms and related equipment, including ammunition, which they located while carrying out the search authorized by the warrant. [7] From the computers, the police were able to obtain evidence which I have not seen, but which it is agreed includes a number of photographs of a naked female, and a video of a male and female having sexual intercourse. MH has identified herself as the female in all of these, and the accused as the male in the video. [8] The accused maintains that all of the evidence seized under the warrant should be ruled inadmissible at his trial pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms because the search of his house and the seizure of the evidence violated his rights under section 8 of the Charter. He advances four principal grounds to support this position. [9] The first is that the material set out in the ITO, if properly considered by the JJP, could not on its face support the issuance of the warrant as it established no nexus between the items sought and the offences stated as believed to have been committed. The ITO was therefore facially invalid. This defect, the accused submitted, was recognized by the JJP in relation to the firearms and ammunition, but existed also in relation to the computer/photographic evidence. [10] The second is that even if the material set out in the ITO established a nexus between the items sought and the offences stated, it was deficient by reason of material omissions and misstatements. As a result, the accused argued, the picture presented to the JJP was so erroneous as to make it impossible for him to exercise his discretion properly. [11] The third is that the search was conducted at night, notwithstanding that the ITO did not meet the statutory requirements of section 488 of the Criminal Code. [12] The fourth, in relation to the firearms and ammunition, is that they were seized pursuant to a warrantless search, having been expressly excluded from the warrant, without reasonable grounds for belief that an offence has been committed. [13] On the basis of these assertions, the accused applied for a voir dire. The crown did not oppose the application. I considered it appropriate to declare a voir dire in the circumstances, particularly given the second and fourth grounds. I also granted leave for the accused, through counsel, to cross examine Cst. Kerins, who swore the ITO, Cst. Cucheran, who was the officer who seized the items, and Cpl. Johansson, who took photographs during the search. Once again, the crown did not oppose the accused's application in this regard. [14] The crown argues that no breach of the accused's section 8 Charter rights occurred here, in that the search was authorized by a warrant, and the ITO set out sufficient evidence that might reasonably be believed to support the issuance of the warrant. If any breach did occur, then the circumstances were such that section 24(2) of the Charter does not require the evidence to be excluded. [15] For the reasons that follow, I have concluded that all of the evidence seized during the search in question is admissible. LEGAL PRINCIPLES [16] There is no dispute between the parties as to the applicable law. [17] The principles for determining whether a search warrant was properly issued are set out most helpfully by Frankel J.A. for the Court in R. v. Wilson, 2011 BCCA 252 at para. 37, applying R. v. Garofoli, [1990] 2 S.C.R. 1421, R. v. Morelli, [2010] 1 S.C.R. 253, and R. v. Bacon, 2010 BCCA 135, leave to appeal ref'd [2010] S.C.C.A. No. 213. The onus is on the accused to demonstrate that the ITO is insufficient. The trial judge's role in reviewing the validity of the search warrant is to consider whether the material filed in its support, as amplified on review, could support the issuance of the warrant. [18] Section 24(2) of the Charter provides, of course, that where evidence ... was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [19] The Supreme Court of Canada has made it clear in R. v. Grant, [2009] 2 S.C.R. 353, that a court facing an application for exclusion must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct: The first line of inquiry relevant to the s. 24(2) analysis requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct.... [Grant, para 72] (2) the impact on the charter-protected interests of the accused: This inquiry focuses on the seriousness of the impact of the charter breach on the charter-protected interests of the accused. That calls for an evaluation of the extent to which the breach actually undermined the interests protected the right infringed. The impact of a charter breach may range from fleeting and technical to profoundly intrusive. [Grant, para 76] and (3) society's interest in an adjudication on the merits: Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. [Grant, para 79] [20] The court reviewing the application is required to balance the assessments under each of these three lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. THE FIRST GROUND - FACIAL INVALIDITY [21] This ground requires a facial-validity review. As indicated in Wilson at para.39, this ground of validity must be determined solely on the basis of the information contained in the ITO. No amplification may be taken into account. [22] The accused's argument is simple and concise. [23] The warrant sought referred to the existence of reasonable grounds for believing that two offences had been committed: sexual assault contrary to section 271 of the Criminal Code on May 30, 2008, and sexual assault contrary to section 271 of the Criminal Code on June 1, 2008. [24] The items sought, as noted, consisted of computers, hard drives, memory sticks, computer disks, digital cameras, memory cards and any other device capable of storing and recording digital photographs, and any hardcopy photos depicting MH or any other minor in a sexual manner. [25] The information relating to photographs, however, consisted solely of the following: ... 11(g) [MH] told [HH] that last year, [LVR] took pictures of [MH]from the neck down with his digital camera and that the pictures were on his computer. ... 12(b) [MH] confirmed to Constable Cucheran that [LVR] had taken "a lot" of naked pictures of her in various positions with his digital camera; 12(c) the one position that [MH] can remember is one where she is on "all fours" which was taken sometime between June 2007 and September 2007; 12(d) [MH] stated that the photos are on [LVR]'s computer and that she believes that it is the computer with the white screen in the living room at [LVR]'s house; 12(e) [MH] stated that she was not positive about which computer that the photos are on and that there are two Dell laptops and another desktop computer in the residence; 12(f) [MH] also believes that there were photos taken of her when she was 13 as well; 12(g) [MH] stated that she has a small freckle near her belly button that may be visible in the photos and that she was much skinnier when the photos were taken. [She] also believes that she may have been wearing a necklace with a pink heart-shaped pendant in some of the photos; ... [26] The accused argues that none of this information is capable of establishing any nexus between the items sought and the offences set out, given that the offences related to events occurring on May 30 and June 1, 2008, and there was no information whatsoever to suggest that any photographs were taken during that time, or that the computers might disclose evidence relating to those two occasions. Rather, the information concerning what photographs might be on the computers related to previous occasions which were not the subject of any offence described in the warrant. [27] The ITO indeed set out facts that could have supported a belief that other offences, to which the items sought could have been directly relevant, had been committed in the past. That information included the following: ... 10(f) [LVR] began touching [MH] when she was 10 years old while she was visiting him in Ontario but she doesn't remember exactly what happened; 10(g) [LVR] and [MH] did not have sex until she was 13, since then [LVR] and her had been "doing it" (clarified by [MH] as meaning having sexual intercourse); 10(h) Before [MH] was 13 [LVR] made her give him "blow jobs or something"; 10(i) the first time [LVR] had sex with her it "hurt a lot"; 10(j) [MH] has told [LVR] to stop when he has began to advance on her however he has simply told her to calm down and refused to stop; 10(k) [LVR] has paid [MH] after sex; ... [28] Those alleged events are now the subject of counts in the indictment. The accused points out, however, that there was no reference to any such offences in the materials put before the JJP. The warrant sought referred only to sexual assault allegedly committed on May 30 and June 1, 2008. [29] I agree with Ms. Wall, for the accused, that the information in the ITO concerning photographic evidence does not directly relate such evidence to the offences allegedly occurring on May 30 and June 1, 2008. There is nothing that would provide any basis for concluding that there was a prospect of locating photographic evidence of the events of those two days. The question is whether it follows from this that the ITO was facially invalid. To find that it does, I must be satisfied that there was nothing in the ITO from which the JJP could have reasonably concluded that the materials to be seized would assist in proving the offences charged. Neither counsel was able to refer me to any authority of direct application to this question. [30] The crown relies on the cases of CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, and Nowegijck v. The Queen, [1983] 1 S.C.R. 29, to support the proposition that the phrase "evidence with respect to the commission of an offence" found in section 487(1)(b) is a broad statement to be given the widest possible scope, encompassing all materials that might shed light on the circumstances of an event which appears to constitute an offence. [31] The crown argued that at this investigative stage, the police are not required to decide what essential elements of an offence are made out. Rather, section 487(1) was designed to allow them to unearth and preserve as much relevant evidence as possible. Given the elements involved in sexual assault, including touching, the sexual nature of the touching, the absence of consent, wilful blindness to a lack of consent, or abusing a position of trust, power or authority, it would be wrong to say that the items sought (in particular, photographs taken on previous occasions) could not afford evidence that "could be of assistance" in establishing the sexual assault alleged (see R. v. Wiens (1974), 24 C.R.N.S. 341 at para. 13 (Man. Q.B.), and R. v. Grewall, 2000 BCSC 820 at para. 57). [32] I find the question as it arises in the circumstances of this case to be a difficult one. Upon reflection, I am inclined to accept the crown's analysis as correct, and I conclude that the accused has failed to satisfy the burden upon him of establishing that the ITO was facially invalid. [33] One can never be sure what will be found, of course, until the evidence is actually seized and reviewed. But I find that given the wide scope referred to in the authorities, a Justice could reasonably have concluded that the items sought could be of assistance in proving the offences described. In this case, it is clear that the learned JJP was alive to the issue of nexus, given his refusal to include the firearms and ammunition in the warrant for lack of it. [34] If I am wrong in that conclusion, if the seizure should be considered to have been, in effect, warrantless due to facial invalidity, I have no hesitation in finding that the evidence is nevertheless admissible in relation to this ground after consideration of section 24(2) of the Charter. [35] Turning to the first of the three inquiries mandated by Grant, I find on the evidence that the seriousness of the alleged charter-infringing state conduct was neither severe nor deliberate. [36] I found Cst. Kerins and Cst. Cucheran to be both credible and reliable witnesses and I am satisfied that Cst. Kerins was acting in good faith in her preparation of the ITO. It was her first experience in that regard, and she clearly felt considerable time pressure given the seriousness of the allegations and the need to preserve the evidence. Nevertheless, she took the time to prepare a lengthy ITO and to apply for and obtain a search warrant, consistent with respect for the accused's Charter rights. [37] The information Cst. Kerins recorded on the ITO disclosed facts that would constitute a number of sexual offences besides sexual assault, including sexual interference with a minor (section 151), sexual exploitation of a minor (section 153), making child pornography (section 163.1(2)) and possession of child pornography (section 163.1(4)). The only error she made was in not recording those as offences that she had probable grounds to believe had occurred. That such probable grounds existed cannot be disputed. The error, then, was not in nondisclosure or misstatement, but rather was at best an inadvertent failure to specify other potential offences that would have firmly established the necessary nexus. Although unspecified, those offences were nevertheless readily apparent on the face of the ITO. [38] With respect to the second branch of inquiry, it cannot be doubted, and the crown did not dispute, that a warrantless search of a person's dwelling house and computers is a very serious breach of that person's section 8 rights: see R. v. Morelli, [2010] 1 S.C.R. 253. [39] Turning to the third branch of inquiry, I find that the public interest in truth-finding is of paramount importance in this case. Two factors to be considered are the reliability of the evidence, and the importance of the evidence to the crown's case. The reliability of the evidence in question is unimpeachable, and it is crucial to the crown's case against the accused on the child pornography counts (11 and 12), as well as to the counts alleging ongoing sexual abuse of MH (counts 1-3). [40] When I balance these assessments, I am unable to conclude that admission of the evidence would bring the administration of justice into disrepute. [41] Although it is not necessary for my decision, I cannot help but observe that exclusion of the photographic and video evidence would have a very undesirable impact on the complainant MH. The transcript of her interview demonstrates the difficulty MH has in articulating her experience. Exclusion of the photographic and video evidence would deprive her of potentially highly reliable corroboration, and convert the process into a much more intimidating trial of her word against the accused's. [42] In my view, the court should be wary of excluding evidence on the basis of section 24(2) when to do so would crush the rights of the alleged victim - here the subject of the photographs in question. To do so in this case would surely bring the administration of justice into disrepute. The question, as always, is one of balance, and the balance here weighs heavily in favour of the admission of the evidence. THE SECOND GROUND - OMISSIONS AND MISSTATEMENTS [43] The accused submits that the ITO is filled with misstatements, and that there were material omissions, the result of which so affects the reliability of the evidence that the JJP might reasonably have refused to issue the warrant if apprised of all the correct information. [44] I find there to be no merit in the accused's submissions in this regard. I will refer to a few of the alleged deficiencies to demonstrate the desperation of the argument. [45] Among the paragraphs impugned by Ms. Wall were paragraphs 10(h) and 10(k) quoted above. [46] The complaint relating to paragraph 10(h) was that the words used by MH in her interview which this subparagraph purported to quote were "blow jobs or something like that", but Cst. Kerins omitted the words "like that". I am unable to see how so insignificant an omission could possibly be considered material. [47] The complaint relating to paragraph 10(k), to the effect that the accused has paid MH after sex, is that MH's statement did not support the information. In her interview, MH said, among other things, the following: ... I mean he bribed me with like money or something. Like and he give... kind of gave me like no choice. But then it was like... a little, like he'll give me money or something. ... But then he'd like give me money or something after and make... and he think that would like to make it go away or something. But it did not, no. That actually would make it worse. [48] Once again, I am unable to discern any material omission or misstatement in what Cst. Kerins wrote. It was fairly supported by what MH had said. [49] In paragraph 10(l), Cst. Kerins described MH's reason for not wanting to tell anyone about what was happening, in that she did not want her little brother to lose his father, she was afraid of what her mother would think of her "and she was afraid of [LVR]". Ms. Wall submitted that MH never actually said specifically that she was afraid of LVR, and that this was a misstatement, particularly given the evidence of DO that MH liked to go over to her stepfather's house because she could do anything she wanted there, including smoking, drinking and drugs. [50] Once again, reviewing MH's statement as a whole, I am unable to agree that this constituted a material omission or misstatement. MH referred a number of times to being scared in the accused's presence, to him forcing her, and to telling him, when he asked, that she would not tell anyone about what had happened "'cause I was... I was too scared". I find that what Cst. Kerins recorded was a fair summary of MH's evidence. The reference of DO was in relation to partying, and not to MH's alleged sexual experience with the accused. [51] In paragraph 10(n), Cst. Kerins indicated that MH had advised that the accused always wore a condom, the accuracy of which is not disputed, and then went on to say that he "flushes it down the toilet after sex". In her statement, however, MH was not sure about this and said that he "probably" flushed it down the toilet after sex. To the extent that this was a misstatement, I am unable to find that it was material. [52] The strongest point raised by Ms. Wall is her assertion that Cst. Kerins failed to communicate the uncertainty that appears to have permeated much of MH's statement in relation to the events of May 30 and June 1, 2008. An example relates to the events of June 1, 2008: Q1. Can you tell me about last night A. I don't...remember...a thing. Well he um...I remembered um... we use smoke marijuana and then I don't remember anything after that, no. Q1. No little...tidbits? A. Oh I was watching TV, on the computer, because of the little I don't know the satellite was not working. So I was watching it on...watching TV on You tube. Q1. Okay, then what happened? A. And then I don't...I don't remember because I don't...I don't remember anything. Q2. So how do you know that... A. I just...I just remember that he had a...intercourse and...then I went to sleep. Q1. Um. A. I think...I think was 45 minutes later. Q1. So the intercourse lasted 45 minutes? A. Yeah. Q1. Okay. A. I don't remember how long it lasted, but I remember...I think I went to sleep like 45 minutes after it happened. [53] Cst. Kerins, who conducted this interview with the assistance of Cst. Cucheran, testified that in her view, having been present throughout MH's statement, MH did not in fact have a memory problem about having intercourse that night, but was having difficulty articulating what had occurred. Having reviewed the transcript as a whole, I believe that Cst. Kerins was correct in that regard, but I note that even if all of the evidence impugned on this basis were excised, there would be more than enough reliable evidence left to support the ITO in relation to the event in question. [54] I have reviewed all of the other references raised by Ms. Wall as constituting material omissions or misstatements, and I am unable to find that they were anything of the kind. In this regard, it is important to remember that the source of the information upon which Cst. Kerins relied was not a transcript, or notes, or summaries from notes. The source was her recollection of the interview as aided by notes and summaries. No transcript then existed. Similarly, Cst. Cucheran's summary of the conversation she had with MH was not based upon her notes, but upon her recollection as aided by her notes. Consequently, it is entirely artificial to get caught up in differences between the words in the transcript and the information in the ITO that are more apparent than real. [55] I am satisfied that both officers were doing their best to be accurate, and were in fact accurate on all material matters. But even if they were not, and all of the impugned paragraphs were removed, there was more than enough credible material in the ITO as amplified on review to justify the issue of the warrant; see, for instance, Wilson at paras. 52 et seq. THE THIRD GROUND - NIGHT SEARCH [56] Section 488 of the Criminal Code provides 488. A warrant issued under section 487 or 487.1 shall be executed by day, unless (a) the justice is satisfied that there are reasonable grounds for it to be executed by night; (b) the reasonable grounds are included in the information; and (c) the warrant authorizes that it be executed by night. [57] It will be recalled that the Justice initially declined to issue the warrant because no grounds for a night search had been included in the information. As a result, the following paragraph was added to the ITO: 27. I am re-submitting this application for a search warrant requesting night time execution for the following reasons: a) [LVR] is currently in custody and will go before a Provincial Court Justice tomorrow (June 4, 2008) therefore the evidence that I am seeking in this search warrant is required prior to his appearance. b) There are currently police officers maintaining continuity of the residence located at [address], Surrey, BC. c) As this is my last night shift I will be unavailable until 10th of June, 2008 and fear that in this time there would be an opportunity for loss of evidence if the search warrant is not executed prior to [LVR]'s release from custody. [58] The accused argued that these grounds were not sufficient to justify a night search, asserting that the RCMP could have delayed the search until 6:00 AM at which point they would have been able to complete it without any fear that the accused would return home and destroy the evidence before they could seize it. [59] Ms. Wall relied upon the well-known case of R. v. Sutherland (2000), 52 O.R. (3d) 27, 150 C.C.C. (3d) 231 (C.A.). There, at para. 23, the Ontario Court of Appeal adopted the words of Justice Marshall of the United States Supreme Court in dissent in Gooding v. United States, 416 U.S. 430 (1974): In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be left alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the home in the middle of the night - frequently, in narcotics cases, without knocking and announcing their purpose - rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a 'police state' lacking in respect for...the right of privacy dictated by the U.S. Constitution. [60] In this case, of course, there was nobody home that night as LVR had already been arrested, and his son was staying with SH. The police and the JJP were both aware that the house would be empty during the time requested for the warrant. Consequently, the expectation of privacy referred to by Justice Marshall is, on any principled approach, neither reasonable nor demanding of constitutional protection in the circumstances. Whether the warrant was executed at midnight or at 6:00 AM made no difference to any constitutionally protected right. [61] The gist of Cst. Kerins' concern in seeking authorization of a night search was preservation of the evidence in relation to the photographic materials, and public safety concerning the firearms. She testified that although she had requested of crown counsel that LVR be remanded in custody when he appeared in court, she was worried that he might instead be released, and would then destroy the computer evidence. [62] It is true that, in retrospect, the search and seizure could have been undertaken after 6:00 AM and completed before the accused could reasonably have been expected to return home even if released after his Provincial Court hearing. But that is not something that would or should have been apparent at the time. The time requested for the execution of the warrant was 5 1/2 hours. It was not possible to know in advance what would be found when they entered the house, or how difficult the search might be. [63] The JJP was doubtless familiar with the provisions of section 516 of the Criminal Code when he accepted the grounds as sufficient. I am unable to say that it was unreasonable for him to do so. This was a very serious matter, the evidence was capable of being quickly destroyed, and it was certain that there would be no one home when the search warrant was executed. [64] But even if the grounds were not sufficient, I am satisfied that the evidence should not be excluded on this ground pursuant to section 24(2) of the Charter. [65] The seriousness of the charter-infringing state conduct was in my view minimal. At best, it consisted of a poor articulation of the grounds upon which Cst. Kerins sought to justify a night search. Again, there was no bad faith or deliberate misconduct. [66] The impact of the breach on the charter protected interests of the accused was also minimal given that what is at issue here is the timing of the search rather than the grounds justifying entry of the dwelling place. The timing made no difference to the accused. He was in custody. [67] The assessment I made above of society's interest in adjudication on the merits applies to this ground with equal force. [68] Balancing these assessments, I can find no sensible basis for concluding on this ground that the admission of the evidence would bring the administration of justice into disrepute. THE FOURTH GROUND - THE FIREARMS AND AMMUNITION [69] When the police officers entered the accused's residence pursuant to the warrant to search for and seize the accused's computers, storage devices and any photographs of MH, they saw, in plain view, a number of rifles in the accused's bedroom, and ammunition and self-loading materials scattered throughout the house, particularly in the bedroom, the kitchen and the living room. All of these items were seized, although such seizure was not authorized by any warrant. [70] Ms. Wall, for the accused, acknowledges that "plain view" seizures are permitted under particular circumstances both by section 489 of the Criminal Code, and at common law: R. v. Spidloe, 2001 SKCA 58. Ms. Wall submits, however, that the seizure in this case of the firearms, ammunition and related materials cannot be saved by either section 489 or the common law because the seizing officer, Cst. Cucheran, did not have reasonable and probable grounds to believe that an offence had been committed. Instead, she simply undertook a blanket seizure of all of the firearms and related materials. [71] Ms. Wall's argument is founded principally on Cst. Cucheran's evidence as to her understanding of the effect of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209. Cst. Cucheran testified that she believed that the regulation required that firearms had to have trigger locks or their bolts removed, and be locked in a gun safe in order to be securely stored within the meaning of the regulation, and that ammunition had to be stored separately as well. This, Ms. Wall asserted, was a misinterpretation of the law. In fact, the regulation did not require that a firearm be both disabled and locked in a gun safe. One or the other was sufficient. [72] As for ammunition, Ms. Wall submitted that there was insufficient reliable evidence of the existence of live ammunition loose in the house. Cst. Cucheran agreed under cross-examination that she had seized anything that looked like ammunition whether or not it was in fact a live round. Yet it was clear that LVR was a self-loader who would make his own ammunition from casings, bullets, powder and primer. [73] What the regulation provides is this: STORAGE OF NON-RESTRICTED FIREARMS 5. (1) An individual may store a non-restricted firearm only if (a) it is unloaded; (b) it is (i) rendered inoperable by means of a secure locking device, (ii) rendered inoperable by the removal of the bolt or bolt-carrier, or (iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and (c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into. [Emphasis added] [74] By section 86(2) of the Criminal Code, contravention of that regulation is an offence. [75] Several of the rifles seized had been rendered inoperable by means of either a trigger lock or the removal of the bolt. Those that had not been rendered inoperable contravened the regulation. Moreover, a plain reading of section 5 of the regulation makes it clear that even those rifles that had been rendered inoperable were not properly stored if there was ready access to ammunition that was not locked separately in a secure manner. [76] The evidence of the photographs taken during the search, together with the evidence of Cpl. Johansson and Cst. Cucheran, satisfies me that Cst. Cucheran had reasonable grounds for believing that there was readily accessible and unsecured live ammunition scattered about the house , and therefore that an offence had been committed with respect to each and every firearm. [77] It follows that the requirements of section 489 were met, as were the requirements of the common law doctrine of "plain view seizure". Although Ms. Wall sought to distinguish R. v. Gorr, [2003] O.J. No. 3209 (On. C.J.), arguing that I should have regard instead to R. v. Guo, 2009 ONCJ 184, it is my view that it is Gorr that is on point, and Guo that is distinguishable. [78] Once again, even if I were unable to find that Cst. Cucheran had reasonable grounds to believe that an offence had been committed, I would have found that section 24(2) of the Charter did not require the firearms and associated items to be excluded from evidence. [79] The first two branches of inquiry are much affected, in my view, by three factors: the police had a valid search warrant to be in the residence, there was no evidence of bad faith on the part of the police, and there were obvious safety concerns particularly given that a child was known to stay in the house from time to time. Accordingly, I conclude that both the seriousness of the Charter-infringing state conduct and the impact of the purported breach on the Charter-protected interests of the accused were minimal. [80] With respect to the third branch of inquiry, society in these days of violence obviously has a keen interest in the proper and safe storage and licensing of firearms; moreover, excluding these items would deprive the crown of evidence that is crucial to counts 8-10. [81] I find that the balancing of these assessments leads to only one conclusion. Under no circumstances would the admission of this evidence bring the administration of justice into disrepute. CONCLUSION [82] The accused's application pursuant to section 24(2) of the Charter for an order excluding from evidence at trial the items seized by the RCMP from the accused's residence on June 4, 2008, is dismissed. We will now proceed with the trial. "GRAUER, J."