



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Galbiati,









2014 BCCA 5




Date: 20140108

Docket: CA040368

Between:

Regina

Respondent



And

David Michael
Galbiati

Appellant






Before:



The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry




On Appeal from an Order
of the Provincial Court of British Columbia, dated
August 30, 2012 (
R. v. Galbiati
, 2012 BCPC 378, Kamloops Registry No.
90078).




Counsel for the Appellant:



N.L. Cobb
R. Thirkell





Counsel for the Respondent:



P. Eccles





Place and Date of Hearing:



Vancouver, British
  Columbia

December 5, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 8, 2014









Written Reasons by:





The Honourable Madam Justice Newbury





Concurred in by:





The Honourable Mr. Justice Donald





The Honourable Mr. Justice Lowry








Summary:

Police executed a search
warrant at the appellants residence that authorized them to search for a
marihuana grow-op, related notes and records and documents re occupancy.  They
found marihuana and grow-op items and perused the appellants income tax
returns.  In so doing, police became suspicious that a proceeds of crime
offence may have taken place, and seized various vehicles belonging to the
appellant, as well as two stolen vehicles.  They also saw various firearms and
ammunition in plain view, which they seized.

The appellant was charged
only with the possession of marihuana for the purposes of trafficking and
improper storage of firearms.  He argued at trial that the search warrant had
been improperly executed and that
all
the evidence seized should be
excluded.  The trial judge agreed that the appellants vehicles had been
improperly seized, but admitted the evidence relating to the marihuana and
firearms charges.  She found that the police had not wilfully disregarded the
appellants rights.

On appeal: the trial judge
had not been shown to have erred, even if one regarded the police conduct as
one transaction, as opposed to four distinct investigations as the trial judge
suggested.  The evidence admitted had been obtained by means of a valid search
warrant and the admissibility of that evidence would not bring the
administration of justice into disrepute.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

Mr. Galbiati appeals his convictions on one charge of possession of marihuana
for the purpose of trafficking, and one charge of unsafely storing firearms
contrary to the
Firearms Act
, S.C. 1995, c. 39 and
Regulations
. 
These charges followed a search by police of his rural property on June 2,
2010.  The only substantive issue at trial was whether the evidence gathered by
the police at that time was admissible or whether it should be excluded as
contravening the appellants rights under s. 8 of the
Charter
.

[2]

Members of the Kamloops RCMP searched Mr. Galbiatis property outside
Kamloops on June 2, 2010 under the authority of a valid search warrant. 
The warrant was directed solely to evidence of a marihuana grow-operation in
the residence and garage, notes and records relating to the growing of marihuana,
and documentation relating to occupancy.  The police found a pair of
concealed rooms that had previously housed a grow operation, and 19.1 pounds of
marihuana packaged for sale.  In addition to the grow-op items, they noticed
and seized 28 firearms and a great deal of ammunition that was unsafely stored
throughout the house and readily visible.

[3]

The officers also noted a Case backhoe and a Bobcat excavator on the
property.  Evidently, the VIN numbers were plainly visible on these vehicles. 
The police searched the numbers and discovered that both vehicles were stolen
property.  The police seized them.

[4]

After the dismantled grow operation and marihuana had been located,
Sgt. Senner also perused copies of Mr. Galbiatis income tax returns
between 2002 and 2008 that were found in the house.  The sergeant formed the
opinion that the obvious high quality of Mr. Galbiatis home and assets
indicated an income well in excess of that reported in the tax returns, and decided
it would be appropriate to commence a proceeds of crime investigation.  The
police thereupon proceeded to seize various other vehicles and property
belonging to Mr. Galbiati on the basis that these items were evidence in
plain view relating to this new investigation.  They did not believe it was
necessary to obtain a new search warrant.

[5]

Mr. Galbiati was never charged with any offence relating to the
vehicles seized or any item taken from the property, nor with being in
possession of proceeds of crime.

[6]

Mr. Galbiati argued on the
voir dire
that
all
the
evidence seized, including the marihuana and the guns and ammunition, should be
excluded under s. 24 of the
Charter
on the basis that the officers
had gone far beyond the terms of the search warrant in seizing the two stolen
vehicles, in reading his income tax returns, and in seizing the other vehicles
(the ones that were
not
stolen) on the basis of a proceeds of crime
investigation.  In his submission, the search warrant had not been properly,
or reasonably, executed and all the evidence was in effect tainted.

[7]

In her ruling on the
voir dire
, the trial judge found that the
decision to pursue a proceeds of crime investigation was a reasonable one
undertaken in good faith.  At the same time, she found that the officers
belief that the further investigation did not require a new warrant was
mistaken, and that the resulting seizures had violated Mr. Galbiatis
rights under s. 8 of the
Charter
to be free from unreasonable
search or seizure.  This finding is not under appeal.

[8]

The trial judge said at para. 13 of her ruling that four distinct
investigations had occurred in the course of the execution of the search
warrant  the first, relating to the marihuana grow operation which was the
subject of the warrant; the second relating to the proceeds of crime evidence;
the third relating to the
Firearms Act
and
Regulations
; and the
fourth, a stolen equipment investigation.  Then, turning directly to the law
regarding s. 24, she described the appellants submission thus:

[Defence counsel at trial] argued that the seizures in this
case should not receive judicial acceptance. Sergeant Senner admitted that he
did not turn his mind to obtaining further warrants. He agreed that the
circumstances were not urgent and he could have obtained a warrant by
telecommunications or otherwise if necessary. [Counsel] argued that those
income tax documents, as dated as they were, would not have been sufficient for
a search warrant relating to a proceeds of crime investigation.

Compounding the breach is that no
charges resulted from the unlawful seizure from the investigation of the
proceeds of crime or the stolen property. There has been a significant delay
returning the vehicles with no explanation for that delay. Money subsequently
seized from Mr. Galbiati when he was arrested at the airport has never been
returned. The computer and PVR hard drive have never been returned.  [At paras.
24-5.]

[9]

The trial judge referred to
R. v. L.V.R.
2011 BCSC 1158, which
like this case involved the execution of a search warrant followed by the
seizure of items falling outside the parameters of the warrant.  In
L.V.R
.,
the warrant had been directed to the making and possession of child pornography,
but the police also seized a number of firearms and related equipment.  The
Court ruled that the evidence of the existence of the firearms was admissible
given the public interest in truth-finding, the reliability of the evidence,
and its importance to the Crowns case.

[10]

The judge also mentioned
R. v. Fawthrop
(2002) 161 O.A.C. 350
(C.A.), in which the Court considered s. 489(2) of the
Criminal Code
. 
It allows the seizure of items not specified in a warrant where the person
executing the warrant believes on reasonable grounds that the items have been
obtained by or used in the commission of an offence.  The Court cited with
approval a definition of the common law plain view doctrine referred to by
Madam Justice Jackson in
R. v. Spindloe
2001 SKCA 58 as follows:

Plain view occurs when evidence
falls into the view of an officer who has a right to be in the position he is
in to have the view he has had; such items have been held to be subject to
seizure.  [At para. 29.]

From
Fawthrop
, the trial
judge in the case at bar concluded that:

Anything seized by the officers
in the execution of this warrant must either be contemplated by the warrant, or
it must have been immediately obvious to and discovered inadvertently by them
while executing that lawful warrant.  [At para. 33.]

[11]

The trial judge then formulated the question before her as whether
despite the lawful warrant those items lawfully searched and seized should be
excluded because of the [extent] and seriousness of the breach of Mr.
Galbiatis rights.  (Para. 34.)  Applying the well-known factors formulated in
R. v. Grant
2009 SCC 32, she emphasized that the evidence relating to
the grow operation had been obtained by virtue of a lawful warrant.  The firearms
and ammunition had been in plain view and were inadvertently discovered when
the police were executing the warrant, and the offence had been immediately
apparent.  (Para. 36.)

[12]

In connection with the stolen goods, she observed that their discovery
could not be described as inadvertent.  She continued:

What ought to have occurred at this point was for the
officers to write down the vehicle identification numbers because they were
readily visible. They were entitled to conduct their searches of those numbers
to determine if the equipment belonged to Mr. Galbiati.

Upon discovering that the
equipment was stolen, the police ought to have obtained a search warrant
pursuant to an investigation for stolen goods. Instead, they took the results
of the vehicle identification number searches and simply seized the property.
It is only this final step of seizure which constitutes a breach of Mr.
Galbiatis rights. The breach occurred because of the erroneous belief of the
police that because the vehicle identification numbers were in view they were
entitled to seize the items upon receiving the search results. The seizure was
done in good faith. I have no doubt that if a search warrant had been sought it
would have been granted, given the vehicle identification number search
results. As a result, I find that the breach was not a serious one and, if such
charges were before me, I would not exclude the evidence. As it happens,
charges are not before me because there was no evidence that Mr. Galbiati
acquired the equipment improperly or was aware that the equipment was stolen.  [At
paras. 37-8.]

[13]

The product of the proceeds of crime investigation was another matter:
although again the police had acted in good faith and, the trial judge stated, they
had been entitled to peruse the tax returns, the breach in this regard had
been more egregious.  She found that the police should have sought and obtained
another search warrant once they became suspicious.  Accordingly, she said, she
would have
excluded
this evidence pursuant to s. 24(2) of the
Charter
had a charge relating to proceeds of crime been before her.

[14]

As far as the evidence related to  the marihuana grow operation and the
firearms storage charge was concerned, however, the trial judge concluded that the
police had not wilfully disregarded Mr. Galbiatis rights and that:

The evidence lawfully seized
pursuant to the plain view doctrine respecting the improperly stored firearms
was properly seized. Similarly, all of the evidence seized pursuant to the
investigation into the marijuana grow operation was properly seized. Each of
these transactions under all four investigations are easily discernable and
allocated to those investigations. That being the case,
it would bring the
administration [of justice] into disrepute if that discrete evidence respecting
those discrete charges was not admitted into evidence.
[At para. 44;
emphasis added.]

and further:

As with the evidence that was
seized pursuant to a partially invalid search warrant in
R. v. Fawthrop,
supra
, I am satisfied that it would not bring the administration of justice
into disrepute if I admitted the properly seized evidence relating to the
marijuana grow operation and the properly seized evidence relating to the
firearms offences into evidence.
There were no breaches of Mr. Galbiatis
rights in respect of either of those charges under s. 8 of the
Charter
of Rights and Freedoms
.
Therefore, there should be no remedy available
to him pursuant to s. 24(2) of the
Charter of Rights and Freedoms
.  [At
para. 45; emphasis added.]

The Court proceeded to find the appellant guilty on the two
charges for reasons delivered on the same day as the reasons on the
voir
dire
.

On
Appeal

[15]

In this court, the appellant argues that the trial judge erred in
failing to find the appellants rights under s. 8 of the
Charter
were
breached, and  in failing to exclude all of the evidence seized on
June 02, 2010, pursuant to s. 24(2).  In his overview, Mr. Galbiati
submits that in notionally dividing what occurred into four distinct investigations
and in concluding that no
Charter
breach had occurred in respect of the
discovery of the marihuana and firearms, the trial judge erred in law by
requiring Mr. Galbiati to, in essence, establish a causal link between
the clear breach of his rights and the evidence upon which the Crown sought to
rely at trial on charges which they chose to prosecute.

[16]

On the latter point, counsel for the appellant, Mr. Cobb, argues
that an accused who is seeking to have evidence obtained in breach of the
Charter
excluded need not establish a causal connection between that evidence and the
violation; rather, he or she need establish only that a
Charter
violation
occurred in the course of obtaining the evidence.  Counsel drew our attention
to
R. v. Strachan
[1988] 2 S.C.R. 980, where the Court rejected the
argument that a strict causal nexus was required.  Instead, the Court said:

all of the pitfalls of causation may be avoided by adopting
an approach that focuses on the entire chain of events during which the C
harter
violation occurred and the evidence was obtained.  Accordingly, the first
inquiry under s. 24(2) would be to determine whether a
Charter
violation
occurred in the course of obtaining the evidence.
A temporal link between
the infringement of the
Charter
and the discovery of the evidence
figures prominently in this assessment
, particularly where the
Charter
violation
and the discovery of the evidence occur in the cause of a single transaction.
The
presence of a temporal connection is not, however, determinative.  Situations
will arise where evidence, though obtained following the breach of a
Charter
right, will be too remote from the violation to be obtained in a manner
that infringed the
Charter
There can be no hard and fast rule for
determining when evidence obtained following the infringement of a
Charter
right
becomes too remote.

If a
Charter
violation has
occurred in the course of obtaining the evidence, the analysis will proceed to
the second, and in my view
the more important, branch of s. 24(2)
,
whether the admission of the evidence would bring the administration of justice
into disrepute.  [At 1005-6; emphasis added.]

(See also
R. v. Plaha
(2004) 188 C.C.C. (3rd) 289 at paras.
44-5 and
R. v. Lauriente
2010 BCCA 72 at para. 36.)

[17]

The Crown does not challenge the fact that a causal link between the
infringement and the discovery of the evidence is unnecessary for a breach of
s. 8 to be established, but submits that the trial judge did not require
one.  It argues that a more general remoteness analysis is mandated by the
case law, under which the court must consider all the connections between the
breach and the discovery of evidence: see
R. v. Perjalian
2011 BCCA 323
at para. 66,
R. v. Pettit and Pranic
2003 BCCA 522, at paras. 20-1.
Relying on these authorities, the Crown contends that there was obviously a
temporal connection between the evidence in question
−
the marihuana and related items and the
firearms and ammunition
−
and the subsequent breach(es), but that the connection was sufficiently remote
that the admission of this evidence would not bring the administration of
justice into disrepute.

[18]

It seems to be implicit in the Crowns submission that this case turns on
the second branch of the analysis described in
Strachan
−
whether the admission
of the evidence would bring the administration of justice into disrepute, rather
than whether a breach of s. 8 occurred at all.  However, I do not think it
was unreasonable for the trial judge to posit four separate investigations
based on the four different kinds of offences they suspected.  In this regard,
the Crown cited various cases in which the severability of valid portions of
a search warrant from invalid portions was approved: see
Fawthrop
,
supra
,
and
R. v. Chuhaniuk
2010 BCCA 403, where an all or nothing approach
was said not to be appropriate.  (At para. 92.)  On this basis, there is
some doubt in my mind as to whether the evidence relating to the charges
brought against Mr. Galbiati was obtained in a manner that infringed his
s. 8 rights, notwithstanding the breach(es) with respect to the seizure of
his vehicles.  As the judge observed, the marihuana and firearms evidence was
obtained on the strength of a valid search warrant that had been executed prior
to any breach.

[19]

Even if one assumes, however, that the marihuana items, firearms and
ammunition were found and seized as part of one overall transaction in which
the other items were also seized, I am not persuaded we should interfere with
the trial judges conclusion that the admission of the marihuana items and firearms
into evidence would bring the administration of justice into disrepute.  The
Courts review of the
Grant
factors in this case has not been shown to
be erroneous.  The Court found that the items of property seized by the police
had been in plain view, and that the RCMP had acted in good faith.  As the
Crown submits, if the RCMP had stopped and obtained a warrant before searching
the VIN numbers on the two vehicles, they almost certainly would have obtained
one.  There was no suggestion their conduct was part of an overall pattern of
short-cuts or failures to respect the constitutional rights of persons
encountered by the police in the course of their exercise of their duties. 
(See
R. v. Burlingham
(1995) 2 S.C.R. 206, at para. 50.)  The
trial judge found no wilful disregard of Mr. Galbiabtis rights.

[20]

On a more general level, the impact on the accused, societys interests
in the adjudication of the criminal charges on their merits, and the overall balancing
of the public interest in admitting or excluding the evidence in question must
also be considered.  While there can be no doubt that, as Mr. Cobb contends, a
search warrant should not be turned into an unfounded general inquisition or
an unreasonable search (see
R. v. Mellenthin
[1992] 3 S.C.R. 615 at
624, discussing random stop programs), I find it difficult to disagree with
the trial judges conclusion that it would bring the administration of justice
into disrepute if the evidence relating to the two charges were excluded. 
Society has an interest in having the charges adjudicated, and even if the
firearms charges were regulatory and at the less serious end of the spectrum
as counsel suggests, the consequences of Mr. Galbiatis failing to store
the guns and ammunition properly could be serious indeed.  Nor do I agree that
societys interest in a trial on the merits is comparatively low as Mr. Cobb argues.

[21]

In all the circumstances, including the deference owed to the findings
of the trial judge, I see no basis on which we should interfere.  I would
therefore dismiss the appeal.

The
Honourable Madam Justice Newbury

I AGREE:

The Honourable Mr. Justice
Donald

I AGREE:

The Honourable Mr. Justice
Lowry


