



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. MacDuff
,









2011 BCCA 2




Date: 20110106

Docket: CA036919

Between:

Regina

Respondent

And

John William
MacDuff

Appellant






Before:



The Honourable Madam Justice Kirkpatrick





The Honourable Mr. Justice Tysoe





The Honourable Madam Justice Bennett




On appeal from: 
Provincial Court of British Columbia,
(
R. v. MacDuff
, Kelowna Docket 63050)




Counsel for the Appellant:



N. Cobb





Counsel for the Respondent:



P. Eccles





Place and Date of Hearing:



Vancouver, British
  Columbia

September 29, 2010





Place and Date of Judgment:



Vancouver, British
  Columbia

January 6, 2011









Written Reasons by:





The Honourable Madam Justice Bennett





Concurred in by:





The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Tysoe




















Reasons for Judgment of the Honourable
Madam Justice Bennett:

[1]

John MacDuff was convicted in the Provincial Court of production of
marihuana contrary to s. 7(1) of the
Controlled Drugs and Substances Act
(
CDSA
), possession of marihuana for the purpose of trafficking,
contrary to s. 5(2) of the
CDSA,
and theft of electricity, contrary to
s. 326(1)(a) of the
Criminal Code.

[2]

The police executed a search warrant at Mr. MacDuffs residence which
was issued for theft of electricity.  They found a sophisticated, multiple room
grow operation in the basement.  There were 1,619 marihuana plants in two
stages of production.  The plants were valued between $94,000 - $141,000 per
crop.  The operation was capable of producing several crops per year.

[3]

The police also found a hydro bypass which was how the theft of
electricity was committed.

[4]

The trial judge quashed the search warrant, but admitted the evidence
pursuant to s. 24(2) of the
Charter of Rights and Freedoms
(the 
Charter
). 
Mr. MacDuff appeals the decision to admit the evidence pursuant to s. 24(2) of
the
Charter.


Overview

[5]

On January 4, 2006, two employees of FortisBC Inc. (Fortis) conducted
a service check at premises in Kelowna.  The check revealed that electricity
was being stolen by the occupant.  They conducted a test that lasted 6.2 seconds
and disclosed that 19,225 watts of electricity was stolen during that brief
time.  They submitted a report to the RCMP which stated the amount of wattage
which they believed was being stolen.

[6]

Constable Bellamy of the Kelowna RCMP applied for a telewarrant to
search the premises on the basis of the theft report from Fortis as well as
other investigations he conducted.  The Information to Obtain the warrant (ITO)
stated that Constable Bellamy was applying for a telewarrant because it is
impracticable for the Informant to appear personally because: There are no
JJPs available at the local courthouse today, or any time this week.

[7]

At trial the evidence of the impracticability of appearing in person was
amplified by Constable Bellamy.  He testified that he called the Kelowna Courthouse
prior to commencing the paperwork for the warrant to see if there was a JJP
(Judicial Justice of the Peace) available.  He was told, as he wrote in the
ITO, that there were none available that day nor would there be any available
for the rest of the week.  Constable Bellamy was asked if he inquired about the
availability of a judge to hear the warrant.  He replied that he did not.  He
said:

A          Ive been advised
that the procedure is to contact the courthouse for a local JJP.  If they are
not available, then we are to contact the JJP centre because they are to screen
the
Criminal Code
warrants and
CDSA
warrants so that the judges
are not inundated during the day.  They have more important things to do than
just the warrant applications.

[8]

Constable Bellamy did not say who advised him that judges were not
available.  He did not refer to the practice directive of the Chief Provincial
Court Judge issued on March 4, 2005 which states that [u]nder no circumstances
may a search warrant application be referred to a judge by a judicial
administrative assistant or a court registry without the approval of the
applicable Administrative Judge.  The Crown did not refer to the practice
directive and it was not before the judge who heard the trial.

[9]

The trial judge set aside the telewarrant on the following basis:

[12]      Section 487.1(4) provides
that the officer must include a statement of the circumstances that make it
impracticable for the peace officer to appear personally before a justice. 
Cst. Bellamy failed to do this.

However, the trial judge admitted the evidence pursuant to
s. 24(2) of the
Charter
.

Issues on Appeal

[10]

Mr. MacDuff submits that the trial judge erred in admitting the evidence
pursuant to s. 24(2).  He submits that the decision was made prior to the
decisions of the Supreme Court in
R. v. Grant
, 2009 SCC 32

and
R.
v Harrison
, 2009 SCC 34.  He submits that under the revised analysis, the
evidence must be excluded.

[11]

The Crown takes the position that the trial judge erred when he quashed
the warrant and that there was no breach of the
Charter
.  The Crown also
submits that if the trial judge was correct in his decision to quash the
warrant, he was correct in his conclusion that the evidence obtained as a
result of the search was admissible under s. 24(2).

Quashing the search warrant

[12]

The Crown submits that the trial judge erred in quashing the search
warrant by finding that Constable Bellamy had to inquire whether any judges
were available to hear the application before he applied for a telewarrant. 
The Crown submits that Constable Bellamy referred indirectly to the practice
directive when he stated that it was his understanding that judges would not
hear these applications.

[13]

The Crown at trial did not put the practice directive before the judge
nor was Constable Bellamy asked about the source of his knowledge regarding
judges being unavailable for search warrants.

[14]

Despite finding a breach of s. 8 in the obtaining of the warrant, the
trial judge admitted the evidence based on s. 24(2).  As I would not interfere
with his decision to admit the evidence, I find it unnecessary to address the
issue of whether he was correct in his decision regarding the breach of s. 8

[15]

However, because the seriousness of the breach is something which must
be considered in a s. 24(2) analysis, I would make the following observations
regarding the practice directive.

[16]

The practice directives as issued by the Chief Judge of the Provincial Court
have been referred to in several judgments.  Although there have been several
practice directives issued since 2002, I reproduce below the directive which
was in force at the time Constable Bellamy applied for the telewarrant.  The
directive was provided to the court without objection.  It is also set out in
the reasons of Humphries J. in
R. v. Passon
,

2009 BCSC 192:

Directive of March 4,
2005

Practice Direction

Pursuant to Section 11 of the Provincial Court Act

Daytime Search Warrant Applications

This Practice Direction confirms and clarifies the
information contained in a
Practice Note dated June 6, 2003
sent to the
Provincial Judiciary, and a memorandum of the same date sent to police
agencies, Administrative Judges, the Ministry of the Attorney General,
Department of Justice, and Court Services Branch.  Copies of these
documents may be obtained from the office of the Chief Judge.

Pursuant to section 11 of the Provincial Court Act, search
warrant applications made during court sitting hours (daytime search
warrants), other than applications that are required by the relevant statutory
provisions to be heard by a judge (judge warrants), are assigned to be heard
in person by available judicial justices of the peace (JJPs), at the Justice
Centre in Burnaby and in all court locations in which JJPs are normally
resident or regularly preside in traffic court.  This does not include
circuit courts where there is no registry.

Police agencies within a reasonable distance of a location
where there is or may be a JJP presiding are instructed that when they
contemplate applying for a daytime search warrant, before they prepare the
paperwork, they are required to telephone the judicial administrative assistant
or court registry in the relevant location to inquire whether a JJP is
available to hear the application in person.

JJPs are considered to be available to hear applications in
person when court is not sitting during scheduled court sitting hours, but
not
during scheduled breaks or lunch adjournments, when presiding in court, or
outside sitting hours.
Judges are not assigned to hear
any
daytime
search warrant applications other than judge warrants.  Under no
circumstances may a search warrant application be referred to a judge by a
judicial administrative assistant or a court registry without the approval of
the applicable Administrative Judge.  Judge warrants must be referred to
the Justice Centre or the Administrative Judge in the applicable district.

If a JJP is not available to hear a daytime search warrant
application in person, either because there is no JJP in or near the location
or because inquiry has been made and no JJP is available, and the application
is one that may be made by telewarrant, application may be made to the Justice
Centre at the number below.  The application must set out the reasons that
it cannot be heard in person.

In rare cases, a daytime search warrant application must
be heard in person by a judge for specific reasons of sensitivity or
security.  Requests for a judge to be assigned to the specific application
must be made through the Office of the Chief Judge or the Justice Centre at the
numbers shown below.

Office of the chief Judge (604)
660-2864     Justice Centre (604) 660-3263

Carol Baird Ellan, Chief Judge

March 4, 2005

[Emphasis added.]

[17]

As can be seen above, Constable Bellamy complied with the directive;
however, it is unfortunate that the directive was not placed before the trial
judge.  Issues relating to the directive itself are not on appeal and the
reference to the directive should not be read beyond the scope of these
reasons.

Admission of the evidence

[18]

The trial judge gave two sets of reasons in relation to the s. 24(2)
issue.  In his first set of reasons, he stated that there was no evidence that
the police officer had received training in the preparation of an ITO, nor was
there evidence that he was supervised by a more experienced officer.  He also
found that the police officer did not intentionally try to avoid the
requirements of the telewarrant provisions.  As a result, he did not find that
there was bad faith by the police officer.

[19]

The trial judge added other comments in relation to the reputation of
the administration of justice.  He said:

[43]      In a similar vein, an unfulfilled pre-condition to
a telewarrant was a defect that should have been obvious to the justice.  The
consideration and granting of the warrant implies that the justice did not know
the pre-conditions to considering a telewarrant or was not paying attention to
what he or she was doing.

[44]      This incompetence is
inconsistent with the reputation of the administration of justice.  It allows
searches where searches are not justified and opens the door for successful
defences for reasons apart from the merits of the case.

[20]

In my respectful opinion, the JJP would have been well aware of the
directive of the Chief Provincial Court Judge.  I appreciate that the trial
judge was not provided with that directive; however, in the face of the reality
of the situation, there was nothing incompetent about the actions of the JJP. 
The Chief Judge had given express directions that JJPs were to hear all day time
search warrant applications unless there was a special and overriding reason
why a judge had to hear the application.  While the directive was before this
Court, it was not introduced as fresh evidence.  Therefore, I am considering
the appeal on the basis of the findings of fact made by the trial judge.

[21]

The trial judge concluded, in his first set of reasons, that the
Collins
factors had been met (see
R. v. Collins
, [1987] 1 S.C.R. 265).  The
offence was serious, the evidence was real evidence and the breach of the
Charter
was unintentional and not serious.  He admitted the evidence.

[22]

This ruling was given on November 19, 2007.  The trial judge permitted
the application to be re-opened for further argument which was heard on August
22, 2008.  On September 18, 2008, the trial judge again dismissed the
application to exclude evidence but provided more reasons.  The basis for
re-opening the motion, which was consented to by the Crown, was that the trial
judge had overlooked or misstated some evidence in his original ruling.  In
particular he overlooked the evidence that an officer senior in rank to
Constable Bellamy did review the ITO before it was submitted to a JJP and that the
trial judge failed to take into consideration Constable Bellamys considerable
experience with the RCMP.

[23]

The trial judge concluded that the two investigators for Fortis misled
Constable Bellamy by:

i)        failing
to comply with company policy that two tests should be taken before determining
that electricity was stolen;

ii)        overstating the amount
of missing electricity;

iii)       failing
to advise that the missing electricity was worth less than a cent; and

iv)       failing
to advise that there could be non-criminal explanations for the discrepancy.

[24]

In his second set of reasons, the trial judge made several gratuitous statements. 
He stated that Constable Bellamy should have treated the two investigators for
Fortis as informants of an unknown reliability.  However, had Constable
Bellamy said this in the ITO, he would have misled the JJP.  He had known one
of the investigators for over 20 years and knew of the second investigator, as
both were retired RCMP officers.  In my respectful view, the trial judges statement
that the investigators were of unknown reliability was an error in favour of
Mr. MacDuff.

[25]

Next, he stated that the informants (referring to the Fortis investigators),
claimed not to have known that their alleged theft was for less than a
penny.  He further said:

[12]      ... Their excuse for
exaggerating the amount of missing electricity was that Fortis commonly dealt
with electricity in terms of kilowatt hours.  The Informants were hired
specifically to investigate electricity thefts.  I do not accept that they did
not know the value of the very thing they were hired to investigate.

[26]

I have read the transcript of the trial.  Neither investigator said that
they did not know that their alleged theft was for less than a penny.  One
investigator agreed with defence counsel that it would be a fraction of a cent
and the other investigator agreed with defence counsel that it would have been
around $1.50.  What the investigators did not do was state in their report that
the measurement relied on to demonstrate that electricity was being stolen was
only 6.2 seconds long.  This evidence was sufficient to give grounds to believe
that there was a bypass, which is what the search warrant was issued for.  The small
value of the 19,225 watts stolen during the 6.2 second measurement period was
irrelevant because with a bypass, the theft is on-going.

[27]

The next statement is that [t]he Informants gave only the flimsiest
excuse for why they did not do two measurements as was required by policy. 
They also did not explain why they kept the policy breach a secret.  There is
no evidence that there was a policy to take two measurements.  The
investigators testified that sometimes they take two measurements, and sometimes
they do not.  This is another error in favour of Mr. MacDuff.

[28]

The trial judge then said:

[14]      The explanations of the
informants were unsatisfactory.  They showed themselves to be at best
unreliable and at worst intentionally misleading.  In future Information from
them should not be relied on.

[29]

As noted above, the trial judges comments were based on his
misapprehension of the evidence.  His comments regarding the investigators, and
in particular, any future treatment of their evidence,  were in my opinion, not
founded on the evidence.  It was an unfair comment and may well have had a
deleterious effect on their careers.

[30]

He then characterized Constable Bellamys investigation as sloppy
because he did not investigate the matter further than the report he was
given.  In fact, Constable Bellamy testified to several other steps he took in
the course of investigating this matter prior to seeking the telewarrant. 
Again, in my view, this comment was based on the trial judges misapprehension
of the evidence.

[31]

Despite his findings, the trial judge found again that the police
officer did not act in bad faith, that the evidence was real, and that the
seriousness of the offence weighed in favour of admitting the evidence.

[32]

Since this decision was rendered, the Supreme Court of Canada released
its decisions in
Grant
and
Harrison
where a revised approach to
s. 24(2) was developed.  I will now turn to analyzing the findings of the trial
judge through this new lens.

[33]

In summary, the trial judge quashed the telewarrant to search Mr.
MacDuffs premises because the police officer did not confirm that a judge
would not hear the daytime search warrant application.

[34]

There was nothing on the face of the warrant, save the lack of reference
to the impracticality of having a judge hear the application, which would
render the warrant otherwise unlawfully or improperly obtained.

[35]

On amplification, the only evidence that appears to not have been
disclosed to the JJP was the time it took to test the meter and the cost of the
theft for that timeframe.  As noted above, in my view, that information is
irrelevant in the circumstances of this case.

[36]

Under the framework for the application of s. 24(2) of the
Charter
established in
Grant
(paras. 72-86) and
Harrison
, a court must
consider:

i)    the seriousness of the
Charter
-infringing
state conduct

ii)   the
impact of the breach on the
Charter
-protected interests of the accused;
and

iii)  societys interests in an adjudication
on the merits.

Seriousness of the
Charter
-infringing state
conduct

[37]

The trial judge concluded that this was a relatively minor
Charter
violation.  I agree.  The police officer obtained a warrant from a member of
the judiciary.  He provided the JJP with all of the information he had
obtained.  He ensured that there was no JJP who could hear his application in
person within a reasonable time frame.  His only error was to fail to confirm
that a judge was unavailable to hear the application, based on his (correct)
understanding that judges were not to be asked to issue daytime warrants.  The
trial judge found no bad faith on the part of the officer.  This conduct is at
the minor end of the
Charter
breach spectrum (
Grant
at para. 74).

The impact of the breach on the
Charter
-protected
interests of the accused

[38]

Here, the unreasonable search intruded on the privacy interests of Mr.
MacDuff.  The police searched his home, where his privacy interests are
significant.  Therefore, the impact of the breach is serious from this
perspective (
Grant
at para. 78).

Societys interests in an adjudication of the case on its
merits

[39]

Several factors are examined under this heading of analysis which takes
into account the truth-seeking function of the criminal trial process.  They
include the reliability of the evidence and the importance of the evidence to
the Crowns case.  The evidence seized is highly reliable and is key to the
case against Mr. MacDuff.  Without the evidence from his home, there is no case
against Mr. MacDuff.

Conclusion

[40]

All of these factors weigh in favour of the inclusion of evidence and I
would not interfere with the finding of the trial judge in admitting the
evidence.

[41]

Therefore I would dismiss the appeal.

The Honourable Madam Justice Bennett

I agree:

The Honourable Madam Justice
Kirkpatrick

I agree:

The Honourable Mr. Justice
Tysoe


