



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Mandziak,









2014 BCCA 41




Date: 20140203

Docket:
CA040499

Between:

Regina

Respondent

And

Ted Henry Mandziak

Appellant




Before:



The Honourable Madam Justice Levine

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Garson




On appeal from:  An
order of the Provincial Court of British Columbia,
dated November 27, 2012 (
R. v. Mandziak
, Kelowna Docket 75606).




Counsel for the Appellant:



S.J. Tessmer





Counsel for the Respondent:



P. Eccles





Place and Date of Hearing:



Vancouver, British
  Columbia

December 4, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

February 3, 2014









Dissenting Reasons by:





The Honourable Madam Justice Garson





Majority Reasons by:





The Honourable Mr. Justice Chiasson (
page 21, para. 59
)





Concurred in by:





The Honourable Madam Justice Levine








Summary:

The
appellant was convicted of producing and possessing a controlled substance.  He
appeals the decision of a Provincial Court judge to admit three documents into
evidence.  The documents were seized by police when they searched the
appellants residence pursuant to a search warrant.  The warrant limited
seizure to documents addressed to the residence.  The documents in issue were
not so addressed.  The seizing officer admitted that he knew seizure of the
documents was not authorized by the warrant.  No evidence was led as to why he
seized them.  The judge rejected the Crowns submission that the seizure was
authorized by s. 489 of the Criminal Code or pursuant to the plain view
doctrine and held that the seizure was unlawful.  She admitted them into evidence
pursuant to s. 24(2) of the Charter.

Held:
appeal allowed, per Chiasson J.A., Levine J.A. concurring.  The fact
that there was no evidence or a paucity of evidence to support the Crowns
attempt to justify the unlawful seizure was not per se probative of
whether the police acted in bad faith.  It merely left the seizure as unlawful
with no explanation for it.  In the absence of any explanation, the officer was
acting with wilful or reckless disregard of Charter rights.  Having established
the police flagrantly ignored the warrant, the appellant had no obligation to
provide an explanation for the officers conduct.  The documents included a
passport and birth certificate.  Seizure of such documents was a serious
intrusion into the appellants privacy interests.  Garson J.A. would have
dismissed the appeal.

Dissenting
Reasons for Judgment of the Honourable Madam Justice Garson:

Introduction

[1]

After a trial
before a provincial court judge, the appellant, Mr. Mandziak, was
convicted on one count of unlawfully producing a controlled substance contrary
to s. 7(1) of the
Controlled Drugs and Substances Act
, S.C. 1996,
c. 19 (the 
CDSA
), and one count of unlawful possession of a
controlled substance for the purpose of trafficking, contrary to s. 5(2)
of the
CDSA
. Both counts referred to cannabis marihuana.

[2]

Mr. Mandziak appeals
his conviction on both counts. At issue is the trial judges decision to admit
into evidence documents seized from the appellants home despite the fact that
their seizure exceeded the scope of the search warrant, thereby infringing the
appellants rights under s. 8 of the
Canadian

Charter of Rights
and Freedoms,
Part I of the
Constitution Act, 1982
, being Schedule B
to the
Canada Act 1982
(U.K.), 1982, c. 11. Section 8 ensures
that all Canadians have the right to be secure against unreasonable search and
seizure.

[3]

The trial judge declined
to exclude the documents pursuant to s. 24(2) of the
Charter
. Section 24
is a remedial clause. It reads:

24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and just
in the circumstances.

(2) Where, in proceedings under
subsection (1), a court concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by this 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.

[4]

On appeal,
Mr.
Mandziak asserts that the
Charter
-infringing
conduct on the part of the police was deliberate. He contends that the judge
erred in her application of
s.
24(2) by deciding
that the admission of the documents would not bring the administration of
justice into disrepute, given the deliberate nature of the police conduct
.

[5]

For the reasons
that follow, I would dismiss the appeal on both counts.

Background Facts

[6]

The background
facts underlying the appeal are not in dispute and may be described quite
briefly.

[7]

The RCMP obtained
a search warrant for 3325 McQueen Road in Kelowna on June 22, 2011. The
warrant authorized the search for marihuana, marihuana plants, [and]
documents
addressed to
3325 McQueen Road, West Kelowna (emphasis added). The
underlined words were substituted by the Judicial Justice of the Peace for the
language proposed by the police which was, documents identifying ownership
and/or residency of 3325 McQueen Road In the basement of the house, the
police discovered a marihuana grow operation consisting of 236 marihuana
plants.

[8]

The police seized
a number of documents that were addressed to 3325 McQueen Road, as well as
three documents that were not but which bore the name of the appellant: a
passport, insurance documents, and a birth certificate.

[9]

A
voir dire
was not held to determine the admissibility of the three documents; rather, the
judge ruled on their admissibility at the conclusion of the trial. She admitted
all three documents. I will
return
below to a discussion of
this clearly improper procedure and its possible impact on the record.

[10]

The evidence, on
which the appellant says the judge ought to have found bad faith and thus
excluded the documents, is the evidence of two officers, Constables Boyle and
Rode.

[11]

Constable Boyle
was the lead investigator and the officer responsible for obtaining the search
warrant. With other officers he attended at 3325 McQueen Road to execute the
warrant. Constable Boyle was aware of the restriction contained in the search
warrant. He assigned Constable Rode the role of Exhibit Officer. He drew
Constable Rodes attention to the restriction in the warrant but after that,
left it to him as to what documents he seized.

[12]

Constable
Rode testified that as Exhibits Officer he was responsible for seizing
documents. He testified that he was aware of the warrants parameters. He
admitted that the warrant did not authorize seizure of the passport, the birth
certificate, or the insurance documents addressed to Ted Mandziak at a
different address. The entirety of Constable Rodes testimony on this point is
found in the following passage:

Q         Did you review the search warrant prior to conducting
your search and seizure at this address at 33 --

A          Yes, I did.

Q         -- 25. Okay. You knew by looking at that
search warrant that the only documents you were entitled to seize, pursuant to
the warrant, were the documents addressed to 3325 McQueen Road, correct?

A          Correct.

Q         Passports got no address on it, does it?

A          That is correct.

Q         Birth certificates got no address on it,
right?

A          Yes.

Q         Mail addressed to a Ted Mandziak at a
different address does not have the address of 3325 McQueen Road on it,
correct?

A          Correct.

Q         You knew that the warrant did not authorize
the seizure of those documents, correct?

A          That is correct.

Q         Your senior officer there was Corporal Jolley,
was it?

A          That is correct.

Q         Did you talk to Corporal Jolley about seizing
these items that were not listed on the search warrant, these documents?

A          We talked about it --

Q         Yes.

A          -- but I did not document that, no.

Q         You -- you didnt doc -- well, do you recall
having a conversation with him as to whether or not, for instance, Geez,
Corporal, it says here documents addressed to 3325, but I really want to seize
this guys passport. Is that all right if I do it?

A          Mm-hmm.

Q         Did you have that conversation?

A          No, I do not.

Q         No. So you didnt check with any of the
senior officers whether it would be okay to seize documents that fell outside
the document listing in the search warrant.

A          That is correct.

Q         You know that a search warrant is a document
that authorizes the police to do certain things?

A          Correct.

Q         In particular, to search for certain things
and to seize them.

A          Correct.

Mr. Tessmer:   No further questions, Your Honour.

The Court:       Any re-examination?

Ms. McParland:    No.

[13]

He
was not asked for any further explanation concerning his seizure of the three
impugned exhibits.

Trial Judges Ruling on the Admissibility of Exhibits

[14]

The
judge adopted, after Crown counsel refused to consent to a
voir dire
and
defence counsel suggested one was not necessary, a somewhat unusual procedure
at trial. Rather than declaring a
voir dire
on the question of the
admissibility of the three impugned documents, the judge heard all the evidence
in the trial, allowed the documents to be entered as exhibits, and ruled on
their admissibility after the conclusion of argument. Ultimately, she decided
that the exhibits should not be excluded pursuant to s. 24(2).

[15]

As
will be seen in the discussion below, this procedure may have impacted the
examination and cross-examination of the police witnesses, particularly
Constable Rode, as neither the Crown nor defence explored (as they might have
done in a
voir dire
) his reasons for seizing exhibits that were outside
the scope of the search warrant.

[16]

The
judge described the testimony of the officers concerning the search warrant and
the seizure of the documents in her ruling. She wrote:

[11]      Constable Boyle showed the search warrant to the
other officers, including Constable Rode and Corporal Jolley, at the briefing
before the execution of the warrant. He pointed out the constraints of the
search warrant.

[12]      Constable Boyle was present with a number of
officers when the warrant was executed at 3325 McQueen Road. A marihuana grow
operation was found in the basement of the residence. No one was present when
the police arrived to execute the warrant.

[13]      Constable Rode was the exhibits officer. He read
the warrant at the briefing. He made the determination to seize a number of
items: weigh scales, books on growing marihuana, cash, a money-counting
machine, a notebook with entries regarding the marihuana crop.

[14]      In the kitchen on the table were located a number
of documents: a TD Bank Visa statement addressed to Ted Mandziak at 3325 McQueen
Road, which was Exhibit 3; an unopened envelope addressed to Ted Mandziak
at 3325 McQueen Road, Exhibit 4; ICBC documentation relating to insurance for
a vehicle, addressed to Ted Mandziak at 40 − 2065 Boucherie Road,
Westbank, Exhibit 5; a Canadian passport issued to Ted Mandziak with the
bearer's permanent address listed at 3325 McQueen Road, which was Exhibit 6;
and a British Columbia birth certificate in the name of Ted Mandziak, Exhibit 7.

[15]      Constable Rode agreed
in cross-examination that the search warrant did not authorize the seizure of
documents not addressed to 3325 McQueen Road. He did have a general discussion
with Corporal Jolley about seizing exhibits that day, but could not recall the
particulars of that discussion. He did agree that he did not consult with his
superior officers with respect to his decision to seize any particular items.

[17]

At
paras. 19−20 of her ruling the trial judge said:

... It is clear that Exhibit 7, the birth certificate,
and Exhibit 5, the ICBC insurance documents, are not documents
specifically authorized for seizure by the search warrant.

What
of the passport?  On examination, the passport at page 4 does have the
address of 3325 McQueen Road. Under the instruction Bearers permanent address
is written in handwriting, 3325 McQueen road, Westbank, VHT [
sic
] 1B7. The
instructions in the passport, if the document is found, are to return the
passport to the local police or mail the document to Passport Canada in
Gatineau, Quebec. Based on this, I cannot conclude the passport is a document
addressed to 3325 McQueen Road.

[18]

Having
concluded at para. 31 that seizure of Exhibits 5, 6, and 7, infringed
Mr. Mandziaks s. 8 right to be free of unreasonable search and
seizure, the trial judge turned to the analysis for exclusion under s. 24(2).

[19]

Using
the framework set out in
R. v. Grant
, 2009 SCC 32, the judge considered
whether the admission of the evidence would bring the administration of justice
into disrepute. In accordance with
Grant
, she instructed herself that
she should consider: first, the seriousness of the
Charter
breach; second,
the impact of that breach on the accuseds
Charter
-protected rights; and
third, the societal interest in having criminal matters adjudicated on their
merits: at para. 33.

[20]

In
considering the seriousness of the
Charter
-infringing conduct, she found
that the officer responsible for seizing exhibits was inexperienced, and that
the evidence did not support an inference that he acted in bad faith. The judge
found that the
Charter
breach was serious but not egregious. She noted
that the officers were already lawfully inside the appellants home when they seized
the impugned exhibits. She also found that the three exhibits in question were
all found in the open on a kitchen table.

[21]

Next,
she determined that the impact on Mr. Mandziaks
Charter
rights was
minimal. He had argued that he had been without his passport and birth
certificate for a significant period of time. But the judge found that there
was no evidence that his mobility had been affected by the seizure of these documents.
Moreover, he had not brought an application seeking the return of the documents
despite being entitled to do so: at paras. 39−41.

[22]

Finally, at para. 43, she concluded that the societal
interest in having this case adjudicated on its merits was high. In support of
her conclusion she noted that the allegations were serious, and that the exhibits
were important to the Crowns case, real evidence that was reliable and not
conscripted.

[23]

Accordingly,
the trial judge concluded that, after balancing the
Grant
factors,
admitting the documents into evidence would not bring the administration of
justice into disrepute.

Trial Judgment

[24]

In
her reasons for trial judgment, based on all the evidence seized by the police,
including other lawfully seized documents addressed to Mr. Mandziak at
3325 McQueen Road, the judge found that Mr. Mandziak resided in, and
controlled the house at 3325 McQueen Road. She convicted him of unlawfully
producing marihuana and unlawfully possessing marihuana for the purpose of
trafficking.

[25]

In
reaching her conclusion that Mr. Mandziak resided at 3325 McQueen, in West
Kelowna, she relied on the documents seized at the house as evidence that Ted
Henry Mandziak occupied the house and that he was the same person charged with
the offences. She mentioned the birth certificate as well as the passport in
reaching this conclusion. In her reasons for judgment she says:

[7]        I have considered that a number of documents,
namely a TD Canada Trust document, a TD Visa statement, a Rogers bill, and a
birth certificate all in the name of Ted Henry Mandziak were found in the
residence. The bills and bank documents were all current documents in that they
were not old or dated.

[8]        Also found was a passport in the name of Ted Henry
Mandziak. In that document someone has written that the bearer's permanent
address is 3325 McQueen Road. I have examined the passport. The photograph of
the person in that passport is the individual seated in court today. I conclude
that the accused person in court is the same person as is depicted in the
passport.

[9]        Given the uniqueness
of Mr. Mandziaks name, I conclude that the accused is the owner of the
other documents found at the residence; namely, the bank statements, bills, and
insurance documents.

Discussion

Issue on Appeal

[26]

The
central issue in this case is whether the trial judge erred in finding that there
was a paucity of evidence on which to infer bad faith on the part of Constable
Rode despite the officers admission that he was aware of the limitations
contained in the search warrant. The appellant argues that while it is true
that there is no testimony that speaks to
why
Constable Rode seized the
impugned documents, his unequivocal admission that he knew the specific
documents in question could not be lawfully seized is enough to satisfy the
accuseds burden of proving the facts necessary for exclusion of the evidence,
namely that the officer willfully violated the accuseds
Charter
rights.

[27]

The
appellant further argues that the officers knowledge that he was breaching the
accuseds
Charter
rights is evidence of conduct that may be characterized
as deliberate police conduct in violation of established
Charter
standards [tending] to support exclusion of the evidence (
Grant
at para. 75),
and consequently the evidence should not have been admitted under s. 24(2).

Standard of Review

[28]

The
standard of review of a trial judges findings under s. 24(2) is a
deferential one. Where a trial judge has considered the proper factors and has
not made any unreasonable finding, his or her determination is owed
considerable deference on appellate review:
R. v. Côté
, 2011
SCC 46 at para. 44;
R. v. Beaulieu
, 2010 SCC 7 at para. 5;
R. v. Vu
, 2013 SCC 60 at para. 67. Absent a palpable and
overriding error, an appellate court should not interfere with the decision of
the trial judge to admit or exclude evidence under s. 24(2).

The
Grant
Test for Exclusion of Evidence under Section 24(2)

[29]

Grant
not only articulates a three part inquiry to determine the
admissibility of the evidence obtained in breach of the
Charter
, but
situates that inquiry in the context of the courts role in assessing the
overall concern for the reputation of the administration of justice. McLachlin C.J.C.
and Charron J., speaking for the majority, explain:

[67]      The words of s. 24(2) capture its purpose: to
maintain the good repute of the administration of justice. The term
administration of justice is often used to indicate the processes by which
those who break the law are investigated, charged and tried. More broadly,
however, the term embraces maintaining the rule of law and upholding
Charter
rights in the justice system as a whole.

[68]      The phrase bring the administration of justice
into disrepute must be understood in the long-term sense of maintaining the
integrity of, and public confidence in, the justice system. Exclusion of
evidence resulting in an acquittal may provoke immediate criticism. But
s. 24(2) does not focus on immediate reaction to the individual case.
Rather, it looks to whether the overall repute of the justice system, viewed in
the long term, will be adversely affected by admission of the evidence.
The
inquiry is objective. It asks whether a reasonable person, informed of all
relevant circumstances and the values underlying the
Charter
, would
conclude that the admission of the evidence would bring the administration of
justice into disrepute
.

[69]      Section 24(2)s focus is not only long-term, but
prospective. The fact of the
Charter
breach means damage has already
been done to the administration of justice. Section 24(2) starts from that
proposition and seeks to ensure that evidence obtained through that breach does
not do further damage to the repute of the justice system.

[70]      Finally, s. 24(2)s focus is societal. Section 24(2)
is not aimed at punishing the police or providing compensation to the accused,
but rather at systemic concerns. The s. 24(2) focus is on the broad impact
of admission of the evidence on the long-term repute of the justice system.

[71]      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 societys 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) societys interest in the adjudication of the
case on its merits. The courts 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
.

(a) Seriousness of the
Charter
-Infringing State
Conduct

[72]      The first line of inquiry relevant to the s. 24(2)
analysis requires a 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, in order to preserve public
confidence in and ensure state adherence to the rule of law.

[73]      This inquiry therefore necessitates an evaluation
of the seriousness of the state conduct that led to the breach. The concern of
this inquiry is not to punish the police or to deter
Charter
breaches,
although deterrence of
Charter
breaches may be a happy consequence. The
main concern is to preserve public confidence in the rule of law and its
processes. In order to determine the effect of admission of the evidence on
public confidence in the justice system, the court on a s. 24(2) application
must consider the seriousness of the violation, viewed in terms of the gravity
of the offending conduct by state authorities whom the rule of law requires to
uphold the rights guaranteed by the
Charter
.

[74]      State conduct resulting in
Charter
violations
varies in seriousness. At one end of the spectrum, admission of evidence
obtained through inadvertent or minor violations of the
Charter
may
minimally undermine public confidence in the rule of law.
At the other end
of the spectrum, admitting evidence obtained through a wilful or reckless
disregard of
Charter
rights will inevitably have a negative effect on
the public confidence in the rule of law, and risk bringing the administration
of justice into disrepute
.

[75]      Extenuating
circumstances, such as the need to prevent the disappearance of evidence, may
attenuate the seriousness of police conduct that results in a
Charter
breach:
R. v. Silveira
, [1995] 2 S.C.R. 297, per Cory J.
Good faith on the part of the police will also reduce the need for the court
to disassociate itself from the police conduct. However, ignorance of
Charter
standards must not be rewarded or encouraged and negligence or wilful blindness
cannot be equated with good faith:
R. v. Genest
, [1989] 1
S.C.R. 59, at p. 87, per Dickson C.J.;
R. v. Kokesch
,
[1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.;
R. v. Buhay
,
2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59.
Wilful or flagrant
disregard of the
Charter
by those very persons who are charged with
upholding the right in question may require that the court dissociate itself
from such conduct. It follows that deliberate police conduct in violation of
established
Charter
standards tends [page396] to support exclusion of
the evidence
. It should also be kept in mind that for every
Charter
breach that comes before the courts, many others may go unidentified and
unredressed because they did not turn up relevant evidence leading to a
criminal charge. In recognition of the need for courts to distance themselves
from this behaviour, therefore, evidence that the
Charter
-infringing
conduct was part of a pattern of abuse tends to support exclusion.

[Emphasis added to paras. 68,
71, 74, and 75.]

Seriousness of the Breach

[30]

The
appellant argues that the Crown did not lead any evidence from Constable Boyle
or Constable Rode as to why the items were seized;  whether they were
discovered inadvertently; or if there was any belief that the documents would
afford evidence with respect of an offence. The officers, he says,
intentionally disregarded the scope of the warrant. He argues that the judge
minimized the seriousness of the breach, particularly in light of the express
limitation contained in the warrant. Noting that the officers did not hold an
honest and reasonable belief that they were authorized to seize the exhibits,
he argues that the judges failure to find that the officers acted in bad faith
is a palpable and overriding error.

[31]

I
have set out above Constable Rodes evidence concerning his seizure of the
impugned exhibits.

[32]

As
noted by the trial judge, neither of the officers were asked any questions
about the reasons for, or explanation why, Constable Rode seized documents
apparently exceeding the scope of the warrant. Constable Rode was not asked any
questions from which the judge could draw conclusions about the officers state
of mind or whether he had a genuine belief in the lawfulness of the seizure:
R. v. Ward
,

2010 BCCA 1 at para. 14. The evidence was sufficient for the judge to
conclude that Constable Rode
knew
the documents exceeded the scope of
the warrant. But based on that sole admission, without more, she was not able
to draw the inference that the officers acted in bad faith. She concluded that,
in the circumstances, the breach was serious but not egregious. After rejecting
the applicability of the plain view doctrine she said (at para. 37):

the paucity of the evidence
also does not permit an inference of bad faith as opposed to the lack of
experience of the exhibits officer.

This finding that bad faith was not established − that
in turn contributed to the judges conclusion that the administration of
justice would not be brought into disrepute if she admitted the three documents
− is at the heart of this appeal. Is the officers admission that he knew
the limits of the search warrant, and knew that he was not authorized to seize
the three documents, knowing conduct sufficient to ground a finding of egregious
conduct which would, in turn, tend to favour exclusion of the evidence?

[33]

Before
I consider further the seriousness of the breach, I turn to the question of the
seizure of the passport. Although the judge did not mention it as a factor in
respect to her conclusion that there was no bad faith, the passport did contain
the appellants address at 3325 McQueen Road. The judge said:

[19]      What of the passport?
On examination, the passport at page 4 does have the address of 3325
McQueen Road. Under the instruction Bearers permanent address is written in
handwriting, 3325 McQueen Road, Westbank, VHT [
sic
] 1B7. The
instructions in the passport, if the document is found, are to return the
passport to the local police or mail the document to Passport Canada in
Gatineau, Quebec. Based on this, I cannot conclude the passport is a document
addressed to 3325 McQueen Road.

[34]

The
fact that the passport did contain the appellants address, is relevant to the
question of seriousness of the breach, and ultimately to the question of
whether the admission of this evidence would bring the administration of
justice into disrepute.

[35]

Returning
to the question of the trial judges treatment of bad faith, I take from her
comment about the paucity of the evidence that she could find neither bad faith
nor good faith. She was of the view that there was simply insufficient evidence
of the officers state of mind to enable her to do so.

[36]

(The
fact that the officer was asked no questions about his state of mind, apart
from his knowledge that the exhibit was not within the terms of the search
warrant, may stem from the procedure adopted in which the question of
admissibility, was determined in the trial not at a
voir dire
. This may
have constrained counsel in their examination and cross-examination of the
witness.)

[37]

The
question of good faith when examining an officers conduct in breach of the
Charter
is not determinative of the first stage of the inquiry; but in
Grant
it
was clearly identified as attenuating conduct. The absence of evidence of good
faith in the case at bar is troublesome because without any explanation for the
breaching conduct the assessment of the seriousness of the breach must tend
towards exclusion, or at the very least it would constitute a neutral factor.

[38]

Although
R. v. Smith
, 2005 BCCA 334, pre-dates
Grant
, it remains
useful authority on the question of the bounds of good and bad faith under
s. 24(2):
R. v. Caron
,

2011 BCCA 56 at para. 38.
Smith
establishes an objective/subjective test for both good and bad
faith conduct. In dealing with the seriousness of the breach, at para. 33,
Ryan J.A. quoted with approval from
Watts Manual of Criminal Evidence
(Toronto: Thomson Carswell, 2004) at pp. 683−84 as to the type of
factors that may be relevant:

Consideration of the seriousness of a
Charter
violation may involve, but is not limited to questions like the following:

i.      How
serious was the
Charter
infringement?

ii.     Was the
Charter
infringement
committed in good faith, inadvertently or as a result of a momentary error of
judgment?

iii.    Was the
Charter
infringement
deliberate, wilful or flagrant?

iv.    Was the
Charter
infringement
isolated or part of a larger pattern of law enforcement disregard for
Charter
rights?

v.     Were other investigatory techniques
available, equally viable and without
Charter
infringement?

vi.    Was the
Charter
infringement of
one or more than one
Charter
right?

vii.   Was the
Charter
infringement a
significant departure from the
Charter
standard?

viii.  What, if any, justification is
asserted for the
Charter
infringement and what, if any, evidence is
relied on to support it?

ix.    Did the
Charter
infringement
occur as a result of reliance on earlier judicial precedent or statutory
provisions?

x.     Was the
Charter
infringement
accompanied by any other statutory violation or abuse of common law powers?

xi.    Was
there any urgency or danger to life, health or property?

xii.   What
Charter
right was violated?

[39]

She
continues to expand on her discussion about the bounds of the test for the
seriousness of the breach at paras. 55−61:

The
test for determining the seriousness of a
Charter
violation was refined
in
R. v. Collins
, [1987] 1 S.C.R. 265. In that case Lamer J.
adopted the words of Le Dain in
R. v. Therens
, [1985] 1
S.C.R. 613, at p. 652, where he said:

The
relative
seriousness of a
constitutional violation has been assessed in light of whether it was committed
in good faith, or was inadvertent or of merely a technical nature, or whether
it was deliberate, wilful or flagrant.

[Emphasis
added.]

[56]
As I understand the
case-law that has followed, good faith on the part of the offending police
officers mitigates the seriousness of the offence while a deliberate or
flagrant disregard will enhance its seriousness. It is a question of degree.
The cases have not equated a finding of no good faith with a finding of bad
faith. I would suggest that this is because of the way good faith has been
defined.

[57]
In
R. v. Kokesch
,
[1990] 3 S.C.R. 3, 61 C.C.C. (3d) 207, Mr. Justice Sopinka juxtaposed the
terms good faith and flagrant. He said, at p. 228:

An
equally important aspect of the seriousness of the violation is the manner in
which the police conducted themselves in deciding to execute this warrantless
perimeter search. Was the s. 8 violation committed in good faith, or was
it flagrant? Both are terms of art in s. 24(2) cases.

[58]
In
Kokesch
, Mr. Justice
Sopinka seemed to accept that good faith is a state of mind, an honestly held
belief, but he also found that to constitute good faith the belief must be
reasonably based. The evidence in
Kokesch
established that the police
officers were mistaken about their authority to trespass on a homeowners
property. Writing for the majority, Sopinka J. said this about the finding
of the trial judge that the officers acted in good faith (at p. 230):

Secondly,
even if Judge Cashman found that the constable
honestly but mistakenly
believed
that he had the power to search, it is my view that in these
circumstances the constable simply cannot be heard to say that he
misapprehended the scope of his authority. As Chief Justice Dickson has amply
demonstrated in his reasons in this appeal, [t]his court consistently has held
that the common law rights of the property holder to be free of police
intrusion can be restricted only by powers granted in clear statutory language
(p. 13) [ante, p. 218]. The contrary contention is, in Chief Justice
Dicksons words, without foundation. The police must be taken to be aware of
this courts judgments in
Eccles v. Bourque
, [1975] 2 S.C.R. 739] and
Colet
v. The Queen
, [1981] 1 S.C.R. 2, and the circumspection of police to expand
on her discussion about the bounds of the test for the seriousness of the
breachpowers that those judgments represent.

Either the police knew that they were
trespassing, or they ought to have known
. Whichever is the case, they cannot be said
to have proceeded in good faith, as the term is understood in s. 24(2)
jurisprudence.

[Emphasis
added by Ryan J.A.]

[59]
Sopinka J. found
support for this proposition in
R. v. Genest
, [1989] 1 S.C.R.
59. He continued:

... Chief Justice Dickson, speaking for the
court, held that the Crown could not argue that the police officers failure to
recognize obvious defects in a search warrant was inadvertent.
Even in the
absence of evidence of bad faith
, the seriousness of the
Charter
violation in that case was enhanced, because the defects in the search warrant
were serious and the police officers
should have noticed them
 ....

[Underlining
added by Ryan J.A.]

[60]
Thus, Sopinka J. does
not equate a lack of good faith with bad faith. It seems to follow from this
passage that in order to qualify as bad faith the actions of the police must
be knowingly or intentionally wrong.

[61]
To sum up, good faith
connotes an honest and reasonably held belief. If the belief is honest, but not
reasonably held, it cannot be said to constitute good faith. But it does not
follow that it is therefore bad faith. To constitute bad faith the actions must
be knowingly or intentionally wrong.

[40]

In
R. v. Perjalian
, 2011 BCCA 323, Neilson J.A., speaking
for the Court, said that the finding of good faith or bad faith is not
determinative of the analysis, (at para. 62):

While the trial judges treatment of these
breaches in his s. 24(2) analysis was brief, I find no error in his
assessment of them.
There is nothing in
Grant
to suggest a finding of
good or bad faith on the part of the police is decisive in that analysis. That
question is just one of several factors relevant to assessing the seriousness
of the violation
. The trial judge did not make an express finding as to the
severity of the breaches, but it is implicit in his reasons that he viewed them
as resting at the lower end of the spectrum. I am satisfied that assessment was
justifiable. There was nothing deliberate or flagrant about the brief delay in
informing Mr. Perjalian of the reason for his initial detention, his
arrest, or his right to counsel. He was detained for about three minutes before
that information was provided, and events moved quickly during that time,
refocusing the object of the investigation. These
Charter
violations
were thus fleeting and, while Mr. Perjalian argues they undercut his
ability to make an informed decision about how to conduct himself with the
police, it is difficult to envisage how prompter attention to his s. 10
rights would have altered his conduct in any meaningful way.

[Emphasis added.]

[41]

More
recently this Court has discussed the manner in which findings of bad or good
faith fit within the
Grant
inquiry. In
R. v. Voong
,
2013 BCCA 527, MacKenzie J.A., speaking for the Court, considered the
question of the seriousness of the breach of the accuseds
Charter
protected rights by a junior police officer, (at para. 94):

Although the judge found Constable
LaValley to be an honest and credible witness, the absence of bad faith does
not equate to good faith, nor does the absence of good faith equate to bad
faith [citations omitted]. Here, the errors were apparently due to lack of
supervision and inexperience.

[42]

MacKenzie
J.A. noted the lack of experience, and lack of adequate supervision over the
inexperienced officer, the lack of urgency in seeking the warrant, and that the
trial judge had found the officer credible. She found that the first stage of
the
Grant
inquiry ought to have favoured exclusion of the evidence. Ultimately,
she held that the evidence should not be admitted under s. 24(2).

[43]

It
should be remembered, though, that
Grant
does not speak of bad faith,
but rather of deliberate and egregious conduct that disregards the rights of
the accused while emphasizing that the inquiry is one that seeks to balance
all of the relevant factors: at paras. 107−108. The conduct here in
question was deliberate. Although the evidence did not permit the judge to conclude
that the officer did not act in bad faith, neither could she conclude that he
acted in bad faith. There was simply not sufficient evidence before her to make
either finding.

[44]

The
knowing or deliberate nature of the conduct would tend to place the police
conduct on the more serious end of the spectrum under the first branch of the
Grant
inquiry. On the other hand, the seizure of the passport, while not specifically
addressed
to
Mr. Mandziak at McQueen Road, did contain this address
as his permanent address. The remaining impugned exhibits were his birth
certificate and motor vehicle insurance papers related to a vehicle parked in
the driveway. All these documents were on a table. The police officers could
have noted the particulars from them even if they had not been seized. Nonetheless,
the deliberate nature of the officers conduct remains a concern on the first
branch of the
Grant
test. I shall return to the impact of the
seriousness of the breach when I consider the balancing of factors dictated by
the
Grant
analysis.

Impact on the Charter Protected Rights of the Accused

[45]

The
appellant focuses his argument under the second part of the
Grant
analysis on the high expectation of privacy that an individual has in his or
her home. Further, he says that the judge failed to recognize the impact on him
of the seizure of intensely private documents such as his passport and birth
certificate.

[46]

The
Crown argues that the judge did not err in finding that the intrusion into the
appellants
Charter
protected rights was not significant. The Crown
points out that the police were lawfully in the appellants residence in any
event, were authorized to review the readily visible documents, and could have
simply noted the contents without seizing the documents. These factors, the
Crown says, support the trial judges conclusion that the impact on the
appellants
Charter
rights was minimal.

[47]

I
agree. The judge did not err in concluding that the impact on the appellants
rights was minimal.

Societys Interest in Adjudication on the Merits

[48]

At
para. 82 of
Grant
, the Supreme Court describes the third part of
the test for exclusion:

The
fact that the evidence obtained in breach of the
Charter
may facilitate
the discovery of the truth and adjudication of a case on its merits must
therefore be weighed against factors pointing to exclusion, in order to balance
the interest of truth with the integrity of the justice system.... The court
must ask whether the vindication of the specific
Charter
violation
through the exclusion of evidence exacts too great a toll on the truth-seeking
goal of the criminal trial [citation omitted].

[49]

The
appellant argues that the societal balance in this case favoured exclusion. He
says there was no basis for the trial judges statement that the societal
interest in having this case adjudicated on its merits is high.

[50]

The
trial judge determined that the marihuana grow operation was a substantial
illegal operation and that the societal interest favoured exclusion for the
reasons she stated, and that I have already mentioned.

[51]

In
R. v. Perjalian
, 2011 BCCA 323, this Court held (at para. 60):

Whether
evidence should be excluded under s. 24(2) of the
Charter
is a
question of law, reviewable on a standard of correctness. The factual findings
underlying that determination, however, deserve appellate deference, absent
palpable and overriding error:
Grant
at para. 129,
R. v. Lauriente
,
2010 BCCA 72, 251 C.C.C. (3d) 492 at para. 19.

[52]

The
trial judges finding in regard to the societal interest in prosecuting this
case on its merits is consistent with this Courts jurisprudence on the question:
R. v. Larson
, 2011 BCCA 454 at para. 64. I would not
accede to the appellants argument on the third branch of the
Grant
analysis.

Administration of Justice

[53]

Finally
Grant
dictates an overarching determination as to whether the
administration of justice would be brought into disrepute by the inclusion of
the impugned evidence having regard to all the relevant circumstances. The
appellants final submissions are directed to this balancing requirement. He argues
that the judge improperly balanced the factors discussed above.

[54]

The
concern for the reputation of the administration of justice requires the court
to examine and balance the need to dissociate itself with what, in this case,
is a knowing or deliberate, if minimally impairing, breach of the appellants
Charter
rights, with the Courts truth seeking functions.

[55]

In
my view, the seizure of the passport was so close to the terms of the search
warrant that its admission into evidence could not possibly bring the
administration of justice into disrepute. As to the other two exhibits, the officers
were lawfully in the appellants residence and the birth certificate and
insurance papers were visible on a table. The birth certificate and insurance
papers were not determinative of the guilt of the accused.

[56]

As
I have already said, the fact that the judge could not find that the officer
acted in good faith does not and did not lead her to conclude that he acted in
bad faith. A balancing of the factors is required and, in this case, it is not
clear that the knowing breach was sufficient to outweigh the other factors
tending towards inclusion. The officers conduct was not a significant
departure from
Charter
values.

[57]

Notwithstanding
the deliberate conduct of Constable Rode, and applying the deferential standard
of review, I am not persuaded that the trial judge erred in principle in the
manner in which she balanced the relevant factors.

Conclusion

[58]

I
would dismiss the appeal.

The Honourable Madam Justice Garson

Reasons for Judgment of the Honourable Mr. Justice Chiasson
(concurred in by the Honourable Madam Justice Levine):

Introduction

[59]

I have had the opportunity to read the reasons for judgment of Madam
Justice Garson.  With respect, I disagree with her conclusion and would allow
this appeal.

Background

[60]

The police sought a warrant to seize marihuana, marihuana plants and
documents identifying ownership and/or residency of a specific address in
Kelowna, British Columbia.  On the face of the warrant that was obtained, the
words identifying ownership and/or residency of were struck out and the words
addressed to were substituted therefor.  In the result, the warrant
authorized the seizure of documents only if they were addressed to the
Kelowna address.

[61]

The documents in issue on this appeal  a passport, a birth certificate
and insurance papers  were not addressed to the Kelowna address.

[62]

The officer in charge of the operation confirmed that the justice of the
peace who issued the warrant made the change and that he was aware of that fact. 
He went over the search warrant with the officer who was to be the exhibit
officer, the person who physically seized the documents, and drew his attention
to the limitation in the scope of authorized seizure.

[63]

As my colleague notes, Constable Rode, the officer who seized the
impugned documents, testified as follows:

Q         You knew that the warrant did not authorize
the seizure of those documents, correct?

A          That is correct.



Q         You know that a search warrant is a document
that authorizes the police to do certain things?

A          Correct.

Q         In particular,
to search for certain things and to seize them.

A          Correct.

[64]

The Crown tendered no evidence to explain why the officers seized the
documents.  It argued that the seizure could be justified on the basis of the
plain view doctrine or s. 489 of the
Criminal Code
, R.S.C. 1985,
c. C-46.  These contentions were rejected by the trial judge.

[65]

The judge held that the seizure was unreasonable and that the
appellants rights under s. 8 of the
Canadian Charter of Rights and Freedoms
,
Part I of the
Constitution Act, 1982
, being Schedule B to the
Canada
Act 1982
(UK), 1982, c. 11 [
Charter
],

were infringed. 
She then addressed whether the admission of the documents would bring the
administration of justice into disrepute.  The judge concluded that [w]hile
the
Charter
breach was serious, it was not egregious.  She held that
the impact on the appellants
Charter
rights was minimal and that there
was a high societal interest in having the case adjudicated on its merits. 
Balancing these factors, the judge concluded that the admission of the
documents would not bring the administration of justice into disrepute.

Discussion

[66]

Warrantless searches are
prima facie
unreasonable under s. 8
of the
Charter
, and the party seeking to justify a warrantless search
has the onus of rebutting this presumption (
Hunter v. Southam Inc.
,
[1984] 2 S.C.R. 145).  The same onus applies where items that are outside the
scope of a search warrant are seized (
R. v. Jones
, 2011 ONCA
632).

[67]

In the present case, the Crown had the onus of rebutting the
presumption.  The Crowns attempt to justify the seizure on the plain view
doctrine or s. 489 of the
Criminal Code
were both rejected by the
judge on the basis that there was no evidence to support either.  She first
dealt with the plain view doctrine stating at para. 24:

there is no evidence before me
to conclude that the evidentiary nature of these documents was immediately
apparent to Constable Rode and that the evidence was discovered inadvertently.

At
para. 29, the judge dealt with s. 489 as follows:

[29]      I must conclude there
is no evidence that these particular documents were seized because either
Constable Boyle or Constable Rode had reasonable grounds to believe that they
either were obtained by the commission of an offence, had been used in the
commission of an offence, or would afford evidence in respect of an offence.

She
concluded at para. 30:

[30]      Therefore, neither
under s. 489 of the
Criminal Code
nor the common-law plain view doctrine
can it be said that the seizure of these three documents was lawful.  The
evidence before me provided an insufficient foundation to make findings of fact
necessary to justify the seizure under either basis that would make it lawful.

[68]

The circumstances at the threshold of the
Charter
s. 24
analysis in this case were as follows:

1.  documents were seized unlawfully in violation of the appellants
rights under s. 8 of the
Charter
;

2.  the officers involved in the seizure were aware fully that their
request to seize such documents had been rejected by a justice of the peace;

3.  the officer who physically seized the documents knew that the
purpose of a warrant is to authorize seizure;

4.  he also knew that the warrant under which he was operating did not
authorize seizure of the documents;

5.  the police proffered no explanation for the unlawful seizure;

6.  there was no
evidence to support findings of fact that were required to sustain the only
justifications proposed by the Crown.

[69]

The judge undertook the analysis mandated by
R. v. Grant
,
2009 SCC 32.  In
Grant
, the Court set out at para. 71 the three
factors to be considered in determining whether the admission of unlawfully
obtained evidence would bring the administration of justice into disrepute:

When faced with an application
for exclusion under s. 24(2), a court must assess and balance the effect
of admitting the evidence on societys 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) societys interest in the adjudication of the
case on its merits.

[70]

The first inquiry is the seriousness of the
Charter
breach.  In
Grant,
the Court stated at paras. 72-74:

[72]
The first line of inquiry relevant to
the s. 24(2) analysis requires a 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, in
order to preserve public confidence in and ensure state adherence to the rule
of law.

[73]      This inquiry therefore necessitates
an evaluation of the seriousness of the state conduct that led to the breach.
The concern of this inquiry is not to punish the police or to deter
Charter
breaches, although deterrence of
Charter
breaches may be a happy
consequence. The main concern is to preserve public confidence in the rule of
law and its processes. In order to determine the effect of admission of the
evidence on public confidence in the justice system, the court on a s. 24(2)
application must consider the seriousness of the violation, viewed in terms of
the gravity of the offending conduct by state authorities whom the rule of law
requires to uphold the rights guaranteed by the
Charter
.

[74]      State
conduct resulting in
Charter
violations varies in seriousness. At one
end of the spectrum, admission of evidence obtained through inadvertent or
minor violations of the
Charter
may minimally undermine public
confidence in the rule of law. At the other end of the spectrum, admitting
evidence obtained through a wilful or reckless disregard of
Charter
rights
will inevitably have a negative effect on the public confidence in the rule of
law, and risk bringing the administration of justice into disrepute.

[71]

In the present case, the judge stated at para. 37:

[37]      While
there is insufficient evidence to find that the plain view doctrine and
s. 489 apply, the paucity of the evidence also does not permit an
inference of bad faith as opposed to the lack of experience of the exhibits
officer.

I do not agree with the judges analysis.

[72]

The fact that there was no evidence or a paucity of evidence to support
the Crowns attempt to justify the unlawful seizure was not
per se
probative
of whether the police acted in bad faith.  It merely left the seizure as
unlawful with no explanation for it.  What was probative was the fact the
seizing officer acted knowing that he was seizing documents he was not
authorized to seize; in fact, documents he specifically had not been authorized
to seize.  In the absence of any explanation, how can it be said that the
officer was not acting with wilful or reckless disregard of
Charter
rights?

[73]

In my view, the conduct of the police fits the observation of the Court
at para. 75 of
Grant
:

[75]      Extenuating
circumstances, such as the need to prevent the disappearance of evidence, may
attenuate the seriousness of police conduct that results in a
Charter
breach:
R. v. Silveira
, [1995] 2 S.C.R. 297,
per
Cory J.
Good faith on the part of the police will also reduce the need for the court
to disassociate itself from the police conduct. However, ignorance of
Charter
standards must not be rewarded or encouraged and negligence or wilful
blindness cannot be equated with good faith:
R. v. Genest
,
[1989] 1 S.C.R. 59, at p. 87,
per
Dickson C.J.;
R. v. Kokesch
,
[1990] 3 S.C.R. 3, at pp. 32‑33,
per
Sopinka J.;
R. v. Buhay
,
2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant
disregard of the
Charter
by those very persons who are charged with
upholding the right in question may require that the court dissociate itself
from such conduct. It follows that deliberate police conduct in violation of
established
Charter
standards tends to support exclusion of the
evidence. It should also be kept in mind that for every
Charter
breach
that comes before the courts, many others may go unidentified and unredressed
because they did not turn up relevant evidence leading to a criminal charge. In
recognition of the need for courts to distance themselves from this behaviour,
therefore, evidence that the
Charter
-infringing conduct was part of a
pattern of abuse tends to support exclusion.

The documents in issue in this case were seized by
deliberate police conduct in violation of established
Charter
standards.

[74]

There is nothing in the evidence to suggest that the officer seized the
documents because he lacked experience.  He knew a warrant was required; he
knew the warrant expressly did not authorize the seizure he made.

[75]

I see no relevance to whether the documents were not hidden or to the
fact that the police were lawfully in the premises.  They were entitled to
search for the category of documents stated in the warrant.  Seizure of the
documents in issue was not lawful.

[76]

Counsel for the appellant established that the conduct of the police
flagrantly ignored the warrant.  He had no obligation to go further.  Counsel
for the Crown acknowledged that had there been a
voir dire
, Crown
counsel should have asked the officer why he seized the documents.  Counsel on
appeal suggested that Crown counsel at trial could not have done so because the
documents were dealt with in a trial rather than a
voir dire
.  I do not
know why this would be so, but Crown counsel at trial was not in favour of a
voir
dire
.  In any event, even if that was a problem for the Crown, in the
circumstances of this case, it does not shift the obligation to provide an
explanation to the defence or to erode the fact that the defence established
that the police flagrantly ignored the warrant.

[77]

At the end of the day, the inquiry is objective.  As was said in
Grant
,
the question is whether the admission of evidence, despite the
Charter
-infringing
conduct of the police in obtaining it, will send a message to the public that
the court condones state deviation from the rule of law.  In my view, on the
facts of this case, admission of the unlawfully obtained documents would send
such a message.

[78]

In the context of the second prong of the
Grant
analysis, defence
counsel contended that the appellants ability to travel was affected by the
seizure of his birth certificate and passport.  The judge rejected this
contention stating that there was no evidence to conclude that the [appellants]
mobility has been affected by the seizure of these documents.  She agreed with
the Crown that the appellant could have applied for the return of the
documents, which the appellant did not do.  The judge concluded that the
impact on the [appellants]
Charter
rights was minimal.  I do not agree
with that conclusion.

[79]

In my view, consideration of the effect of the seizure on the
appellants ability to travel led the judge away from the real concern: the
appellants privacy interest in his passport and birth certificate.  Such
documents are highly personal.  In my view, the unlawful seizure of them was a
serious intrusion into the appellants privacy interests.

[80]

I would not interfere with the judges assessment of the third factor,
societys interest in having the matter proceed on its merits.

[81]

In my view, the judge erred in her analysis of the
Grant
factors.  The admission of the documents was likely to bring the administration
of justice into disrepute.  The conduct of the police is such that the court should
be disassociated from it.  The invasion of privacy was serious.  I would not
admit the documents.

[82]

The appellant asserts that this Court should acquit him because the
judge relied on the documents, particularly the passport, to convict him.  He
says that identity was in issue and the passport was the only link between him
and the premises where the growing operation was found.

[83]

I agree that the trial judge relied on the passport to link the
appellant to other documents and to the premises, but I am not prepared to find
that he would have been acquitted but for the passport.

[84]

The Crown contends that the curative provision s. 686(1)(b)(iii) of
the
Criminal Code
should be applied and the conviction sustained because
conviction was inevitable on the evidence that is admissible.  I reject this
proposition.  The trial judge relied heavily on the passport; evidence that
linked the appellant to the premises.  Whether that link can be forged in the
absence of the passport is not obvious.

[85]

In my view, a new trial is required.

Conclusion

[86]

In my view, the passport, birth certificate and insurance documents
should have been excluded from the evidence.  I would allow this appeal and
direct a new trial excluding these documents.

The Honourable Mr. Justice Chiasson

I agree:

The
Honourable Madam Justice Levine


