R. v. Farrell

2013 BCSC 2534 R. v. Farrell IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Farrell, 2013 BCSC 2534 Date: 20130118 Docket: 21385 Registry: Salmon Arm Regina v. Darren Roy Farrell and Tammy Ann Glazebrook Before: The Honourable Mr. Justice Meiklem in Chambers Corrected Judgment: The text of the judgment was corrected at para. 21 on August 1, 2017 Oral Ruling on Voir Dire (Re the Accused Farrell) Counsel for the Crown: T.D.A. Fletcher, Q.C. Counsel for the Accused: J. van der Walle Place and Date of Trial/Hearing: Salmon Arm, B.C. January 14, 2013 Place and Date of Judgment: Salmon Arm, B.C. January 18, 2013 [1] THE COURT: I am going to read my ruling on the voir dire. I have made copies so counsel can rest their writing hands, if they wish, and I will hand the copies to you afterwards. It is not an official copy, it should not be treated as a transcript. I might well release it in due course as a publication, but this will be just for your own use. [2] A voir dire was declared in order to hear the defence application for exclusionary relief under s. 24(2) of the Canadian Charter of Rights and Freedoms (the "Charter") on the grounds that Mr. Farrell's s. 8 rights were violated by a search and seizure of his marihuana grow-op that was conducted pursuant to a search warrant which should be set aside on review as insufficiently supported after illegally obtained information and information that is misleading and unreliable is excised from the Information to Obtain ("ITO"). [3] Leave of the court was granted for defence counsel to cross-examine Constable Micklefield, the affiant on the ITO, and Constable Chan, the operator of a FLIR thermal detection device whose April 13, 2011 observations from a roadway bordering the accused's property formed part of the ITO sworn by Constable Micklefield on April 15, 2011. [4] No other evidence was called on the voir dire, although reference was made to admissions and photographs which were marked as exhibits on the voir dire in anticipation they would become trial exhibits, as well, in due course. [5] The ITO sets out Constable Micklefield's reasonable grounds to believe that evidence relating to offences of production of cannabis and possession of cannabis for the purpose of trafficking and related documents would be found in the accused's dwelling house and a brown barn building located in Sorrento, British Columbia. [6] The grounds of belief set out, in paragraphs 14 to 19 of the ITO, Constable Micklefield's observations on April 8, 2011. On that date, while attending the subject property in an attempt to speak to Mr. Farrell regarding a firearm that had been seized from him (several previous attempts to contact Mr. Farrell by telephone were unsuccessful) Constable Micklefield noted a large wooden barn that was emitting a humming noise. He noted several extension cords and several water hoses leading up to the barn and he was downwind from the barn and detected the strong odour of growing marihuana from the barn. On the barn was a sign stating, "Smile for the Camera," and a motion-activated light. A female identified herself and confirmed Mr. Farrell lived there, but was not at home. The two officers left the property. [7] Defence counsel argues that paragraphs 14 to 19, which deal exclusively with observations on April 8, 2011, should be excised as being improperly obtained by a warrantless search. It is submitted the Constable Micklefield's ulterior purpose in going to Mr. Farrell's property on April 8 was to do a snoop-and-sniff because he suspected Mr. Farrell was growing marihuana on the property. If the defence can establish that the police attendance was an intentional snoop-and-sniff which went beyond the scope of the implied invitation to knock, then the smell evidence was illegally obtained and Constable Micklefield's observations must be excised from the ITO. [8] The defence seeks the inferential finding of an ulterior purpose based on the following circumstances: 1. by the time of the April 8, 2011, visit, Constable Micklefield was aware of the fact that Mr. Farrell had previously been involved in a marihuana grow operation in Quesnel, and was aware that, in October 2010, another officer from the Salmon Arm detachment, who had attended the Farrell residence in connection with a missing person investigation and seized an unsecured firearm Mr. Farrell had at the time, observed a building with its "Smile" sign and covered windows; 2. Constable Micklefield had spoken to Mr. Farrell on the telephone on January 15, 2011, to inform him of the requirements for having his seized firearm returned, and the defence argued it is difficult to believe his true purpose for taking the long drive out to his property was to repeat that information; 3. paragraph 14 of the ITO, which sets out the reason for the April 8 visit, includes the statement, "Several previous attempts to contact Farrell by phone were unsuccessful." The defence submitted that in light of the unmentioned fact of the January 15, 2011 telephone contact, that statement is a calculated falsehood which belies any innocent explanation for the April 8 visit. [9] The defence's written submissions include the following quote: By strategically withholding any information in the ITO about Cst. St. Amand's observations of the barn on October 28, 2010 and by lying in the ITO about not being able to reach Mr. Farrell to tell him about his gun, the affiant effectively concealed his true purpose for attending the property. The combined effect of withholding the observations made on the prior police visit and lying about not being able to communicate with Mr. Farrell was that the JP reading the ITO would not have their suspicion raised about the lawfulness of the April 8, 2011 visit. The affiant set out to delude the JJP when he drafted the ITO and he was unsuccessful. [10] Constable Micklefield was not confronted in cross-examination with the suggestion that he strategically withheld information about Constable St. Amand's October 2010 observations or that he lied about not being able to communicate with Mr. Farrell. He was confronted with the snoop-and-sniff allegation and denied it. He was asked why he did not mention the successful telephone contact with Mr. Farrell on January 15, 2011, and he said he had no reason for not including it. He testified that his statement in paragraph 14 of the ITO was true. There had been several unsuccessful attempts to contact Mr. Farrell by telephone and the January contact has been about the need for a firearms licence whereas renewed contact was to be about destruction of the rifle because considerable time had lapsed. [11] Constable Micklefield agreed in cross-examination that paragraph 14 of his statement, which stated the firearm was seized from him, did not make it clear that it was seized from his residence in October 2010 while he was absent and the police were granted entry by a friend of Mr. Farrell's. He also agreed that there was no mention of any previous police visits to Mr. Farrell's property. The evidence adduced through Constable Micklefield was that Constable Micklefield previously attended there on October 27, 2010, to attempt to contact Mr. Farrell in connection with a missing person investigation Constable St. Amand had done in October 2010 and Constable Chan had been there on September 17, 2010, to deliver a letter to Mr. Farrell regarding his options in connection with the seizure of property used in the Quesnel area grow operation. [12] The defence has not persuaded me that Constable Micklefield had an ulterior or subsidiary purpose of snooping and sniffing on his April 8, 2011, attendance on Mr. Farrell's property. Constable Micklefield impressed me in cross-examination as an honest forthright witness and I believe his denial of the snoop-and-sniff allegation. At the time of the swearing of the ITO, he had been an RCMP member for only 19 months and had only been the affiant on one prior ITO. The omission of mentioning his unsuccessful telephone call to Mr. Farrell in January does not necessarily make his paragraph 14 untrue, much less a lie, when the circumstances he testified to and the reasons for contact are considered. He was not simply attending to repeat the same information as the defence postulated before hearing his evidence. [13] I, therefore, do not accede to Mr. Farrell's first argument that paragraphs 14 to 19 should be excised in their entirety as setting out illegally obtained facts. [14] The accused's next argument addresses the affiant's obligations to make full and frank disclosure of all material facts and the functions of the judge reviewing the warrant to excise all material in the ITO that is false and misleading and consider any omissions of material which affect the reliability of the information set out and then determine if sufficient reliable information remains upon which the warrant could have been issued. In this regard, the cases of R. v. Araujo, [2000] 2 S.C.R. 223, and R. v. Ling, 2009 BCCA 70, are cited. Ling makes it clear that: An obligation to make full and frank disclosure of all material facts, whether pro or con the issuance of the warrant, best guards against the evil of misleading the authorizing justice by omission. [15] Mr. Farrell's counsel suggests that paragraphs 23 and 24 of the ITO are misleading and should be excised. Paragraph 23 simply sets out Hydro consumption records for the subject property on a bimonthly basis or, in one case, a four-month basis for billings from December 2009 to February 18, 2011. Paragraph 24 states: Although the most recent Hydro Consumption Reading shows average usage compared to earlier readings, I have suspicion the sharp decline in hydro usage is due to the implementation of a Hydro Diversion. [16] What is omitted from the ITO is the fact that on April 11, 2011, Constable Micklefield consulted a Mr. Finlayson, a BC Hydro employee with expertise in Hydro consumption, and was provided with his opinion that the consumption records were not indicative of illegal use. Constable Micklefield acknowledged he had no expertise in Hydro consumption interpretations to support his suspicions set out in paragraph 24. [17] I agree with the defence argument that the expressed suspicion is an unsubstantiated and bald conclusory statement. The consumption data set out in paragraph 23 is potentially useful information if used in conjunction with other reliable evidence for interpretation, but, absent the latter, is of no evidentiary value. [18] The omission of Mr. Finlayson's opinion that the data did not indicate illegal use was a significant omission which left Constable Micklefield's unsupported speculation as the only suggested explanation; obviously, the two paragraphs taken together are misleading. They should be excised. Constable Micklefield testified that this omission was due to his inexperience in preparing ITOs. [19] Paragraph 26 of the ITO set out the results of Constable Chan's examination of the barn outbuilding on the subject property with a FLIR device from the public roadway at approximately 4:44 a.m. on April 13, 2011. There are four subparagraphs to paragraph 26 and the defence takes issue with subparagraphs (c) and (d). Subparagraph (c) reports an abnormal heat signature when compared with the walls of a "similarly constructed" outbuilding to the west of the barn. The defence refers to the photographs in evidence to suggest there are differences in construction such as size, type of foundation, slope of roof, and that neither the affiant nor Constable Chan know anything about how either building was insulated or heated or what the layout was inside the buildings. Therefore, it is argued, there is no factual basis for saying the other outbuilding was similarly constructed to the barn. [20] The defence properly withdrew an argument that there was an omission of mention of no heat signature from a Hydro service pole in light of Mr. Chan's evidence that the service box on the pole would not have been in direct view of his device. [21] Paragraph 25 of the ITO sets out that this was Constable Chan's fourth FLIR examination of a structure since his thermographer training. It also sets out examples of unique heat signatures found in marihuana production facilities, one of which is surfaces of structures that are hot in comparison to surfaces of other structures similar in substance and construction. Clearly, the fact of similarity in substance and construction is a requirement for a valid comparison. [22] On cross-examination, Constable Chan agreed that he had no knowledge of either building's construction, heating, or insulation. He disagreed with the suggestion there was nothing similar about them pointing out they both had metal roofs and were constructed of wood. These similarities are obviously innocuous. His examination naturally occurred in darkness. [23] In my view, the type of foundation on each building is a meaningless distinction, but I agree with the defence argument that there was no factual basis for saying the two buildings were similarly constructed and subparagraph 26(c) is misleading and unreliable and should be excised. [24] The second sentence of paragraph 26(d) states that the walls on the west side of the building were not indicating a large heat transfer. Constable Micklefield acknowledged in cross-examination that this misstated Constable Chan's report which indicated no heat transfer on the west side. The second sentence of subparagraph 26(d) should therefore be excised. [25] I do not accept the defence argument that the photographs in evidence belie Constable Micklefield's observations of several extension cords and hoses leading up to the barn. The filed admissions state that the pictures depict the scene as of the date of the offence and during the period of surveillance and the photographs do show only one hose and one extension cord, but I cannot be sure that they depict the entire relevant area observed by the affiant on April 8. [26] Paragraph 20(b) reports that a PRIME query identified Mr. Farrell had secured a stay of proceedings on production charges out of Quesnel after an illegal marihuana grow operation was found on a property registered to him. In light of the Crown's concession that this information was of no legitimate use to the JJP and considering the discretion and case references regarding unproven charges in R. v. Nguyen, 2012 BCSC 1758, I will also notionally excise paragraph 20(b). [27] This takes me to the defence arguments dealing with paragraphs 13 and 16 of the ITO. [28] Paragraph 13 is a stand-alone paragraph under the heading, "Investigational Summary." The second sentence states, and I quote: Upon entering the property, police observed a brown shed that was emitting the odour of marihuana - it is believed the shed is housing a marihuana grow operation. [29] The objection is that this sentence, which follows the first informing that the affiant and another officer attended, implies that both Constable Micklefield and Constable Leverrier observed the odour of marihuana emitted and both believed the shed was housing a grow operation, whereas it was only Constable Micklefield that did. It is perhaps unfortunate that Constable Micklefield chose to use the first person voice in the first sentence, but not the second sentence of the investigational summary which leaves the question open as to which "police" made the observation, but I do not agree that it is implied that both the affiant and Corporal Leverrier did. Paragraph 16 is unambiguous in attributing that observation to the affiant. Nowhere else in the ITO is it suggested that anyone else made the observation. What is omitted, however, is a specific statement that Corporal Leverrier did not, in fact, smell the odour of growing marihuana. [30] Constable Micklefield asserted that he had no reason for failing to mention that Corporal Leverrier did not make the same observation and he now agrees it would have been appropriate to include that information. It is a material omission. I doubt that any JJP would have been misled on reading the entire ITO into believing both officers smelled marihuana, but this omission still amounts to a lack of full disclosure which is of some significance given the other undisclosed fact that there were other properties on the street known to be growing marihuana. Constable Micklefield's evidence on the voir dire was that it was possible that the odour came from another property, but in his view, not likely given the strength of the odour. Nevertheless, if that information had been combined with express mention that Corporal Leverrier did not notice the odour and information about the prevalence of trees and the proximity of trees and buildings, Constable Micklefield's observations would have been placed in a far more accurate context in keeping with the requirement to disclose information both pro and con as it is expressed in Ling. [31] As pointed out by defence counsel, there is a dearth of information in the ITO as to how Constable Micklefield determined the wind direction or how he isolated the smell to the barn. There is no information about how close to the barn he was when he observed the odour. Constable Micklefield's testimony in cross-examination was that he felt the wind against his body implying it was reasonably strong. This explains how he determined its direction, but is also increases the possibility of that odour from neighbouring properties being carried to the subject property in noticeably strong form. [32] I do not accept defence counsel's argument that paragraph 16 should be excised as misleading because the failure to mention that Corporal Leverrier did not smell marihuana carries over into the misleading impression in paragraph 13 that both officers smelled marihuana. I agree, however, that the reliability of paragraph 16 is reduced on a full consideration of material information that was omitted which includes the failing to disclose the neutral opinion of Mr. Finlayson, failing to state the distance the affiant was from the barn when he detected the odour, failing to advise of known grow-ops nearby, and failing to specify that Constable Leverrier did not detect the odour. [33] After the excisions I have notionally made and the amplification from cross-examination evidence, we are left with the isolated smell observation by one of two officers which possibly could have come from another grow operation, a humming noise, and the FLIR observations which indicate no anomalies from the roof, but a bay door on the east side that was transferring much more heat than other surfaces nearby. That specific FLIR observation is of no evidentiary value as to the likelihood of a marihuana grow operation, as common sense tells us that bay doors commonly are not insulated as well as walls. [34] The question boils down to whether paragraph 15 and paragraph 16, with its reliability seriously undermined by the noted omissions, provide sufficient reliable information to justify the search warrant. In my view and on a consideration of the comparable cases of R. v. Monroe, [1997] B.C.J. No. 1002 (B.C.C.A.), and R. v. Tran, 2004 BCPC 136, they do not. I would set aside the warrant. There was no suggestion by the Crown that a warrantless search was otherwise reasonable and I find the search unreasonable and a breach of s. 8 of the Charter. [35] I will now turn to a consideration of s. 24(2) of the Charter. [36] The pertinent test to be applied is, of course, that stated in R. v. Grant (2009), 245 C.C.C. (3d) 1, at para. 71 as follows: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [37] The defence argument concedes that the third factor, that is, society's interest in the adjudication of the case on its merits, favours admission of the evidence obtained in breach of s. 8 Charter rights. The evidence obtained was real evidence that existed independently of the Charter breach and the offence is still considered a relatively serious one, warranting in the case of medium and large operations a term of incarceration. I would note, however, that we are seeing an increasing number of licenced marihuana production operations and society's view of the seriousness of the offence may be changing. [38] As to the impact of the breach on the Charter-protected interests of the accused, the search included the accused's home and is, therefore, to be considered a serious violation of s. 8 rights not to be subject to unreasonable search and seizure. [39] As to the seriousness of the Charter-infringing state conduct, I have found that the defence did not prove the allegation that the April 8 visit to Mr. Farrell's property was done with the ulterior purpose of snooping and sniffing which would clearly have amounted to bad faith on the part of the police. It would also constitute bad faith if I had found that Constable Micklefield deliberately intended to mislead and deceive the issuing JJP with the misstatements and omissions in the ITO that I have mentioned. While I am not able to make that finding in light of Constable Micklefield's relative inexperience as a police officer and, specifically, his inexperience in respect of ITO preparation, it is plausible that he was simply inadequately trained and did not understand the obligation of full and frank disclosure. Nevertheless, this amounts to an absence of good faith. [40] The totality of the shortcomings of the ITO in this case amounts to negligence of a degree that, in my view, the court should not condone. There was an absence of good faith which aggravates the seriousness of the breach. There were no other reasonable grounds for a search warrant aside from those set out in the ITO that might be seen as mitigating the seriousness of the Charter violation. [41] While negligence or carelessness in preparing ITOs is less morally blameworthy than deliberate deception, the impact on the Charter-protected rights of an individual is the same in each case. It is very difficult to unmask deception disguised as carelessness, so the court must be diligent in guarding against both with appropriate remedies. Condoning carelessness by state agents of the level present in this case may indeed send the message that individual rights count for little. [42] I find that the potential long-term effects of admission of the seized evidence in this case would bring the administration of justice into disrepute. Although excluding the real evidence means that the Crown's case against a guilty accused is bound to fail, I conclude that exclusion is required in order not to erode society's confidence in the justice system. [43] MR. FLETCHER: The Crown is not calling any further evidence, My Lord. [44] THE COURT: With the Crown not calling further evidence, I have to find Mr. Farrell not guilty. "I.C. Meiklem J." MEIKLEM J.