R. v. Arason (R.H.) and Derosier (G.L.), (1992) 21 B.C.A.C. 20 (CA)

• Judge: Cumming, Proudfoot and Goldie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 02, 1992
• Jurisdiction: British Columbia
• Citations: (1992), 21 B.C.A.C. 20 (CA);1992 CanLII 1008 (BC CA);[1993] BCWLD 190;78 CCC (3d) 1;21 BCAC 20;[1992] CarswellBC 814;[1992] BCJ No 2558 (QL);13 CRR (2d) 248;37 WAC 20

R. v. Arason (R.H.) (1992), 21 B.C.A.C. 20 (CA);

    37 W.A.C. 20

MLB headnote and full text

Regina (respondent/appellant) v. Richard Herman Arason and Gary Louis Derosier (appellants/respondents)

(CA014617; 014618; 014716; 014763; 014764)

Indexed As: R. v. Arason (R.H.) and Derosier (G.L.)

British Columbia Court of Appeal

Cumming, Proudfoot and Goldie, JJ.A.

December 2, 1992.

Summary:

On a five count indictment charging the accused with cultivation of marijuana and possession of marijuana for the purpose of trafficking, the two accused were convicted of the cultivation charges and acquitted on the possession charges. The accused appealed their convictions. The Crown appealed the acquittals.

The British Columbia Court of Appeal dismissed the accused's conviction appeals and allowed the Crown's appeal from acquittal, entering convictions against each accused for possession for the purpose of trafficking.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - The accused was stopped in his vehicle and arrested for cultivation of marijuana and advised of his right to counsel - A set of keys was seized from the accused's truck - Another accused was also apprehended in his vehicle, "detained" and keys seized from his person - The keys linked the accused to two commercial premises where marijuana was being cultivated - The British Columbia Court of Appeal held that the searches resulting in the seizure of the keys were lawfully conducted - The searches were incidental to the arrests, whether they occurred before or after, as the grounds for the arrests existed prior to the searches - See paragraphs 129 to 130.

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - Acting on a tip, police approached a particular unit in a commercial building, the exterior of which was generally accessible to the public, the front doors of the building being only the width of a sidewalk away from the public parking lot - The rear garage doors opened directly onto an alley - The officers entered a compound and, using a ladder leaning against a wall, climbed to the roof of the unit, there detecting the odour of marijuana through an exhaust vent - They also peered through a mail slot but saw nothing suspicious - The British Columbia Court of Appeal held that there was no impermissible search of the building perimeter, as there was no infringement of any privacy rights of the accused, who were neither owners nor lessees of the building - The court noted that the roof search was technically a civil trespass against the owner, but was not criminal - See paragraphs 87 to 89.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1559 ].

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - Application of - Persons protected - The accused were arrested and convicted of cultivation of marijuana following the discovery of a growing operation in the unit of a commercial building - The building was owned by and leased to others - The British Columbia Court of Appeal held that the accused lacked standing to challenge the validity of a warrantless search of the exterior of the premises or of the execution of a search warrant respecting the interior of the premises - See paragraphs 81 to 86.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Acting on a tip, police approached a particular unit in a commercial building and did a search of the exterior of the unit, looking through windows and a mail slot - The officers entered a compound and, using a ladder leaning against the wall, climbed on the roof of the unit and detected the odour of marijuana through an exhaust vent - Police then obtained a search warrant under the Narcotic Control Act (normally pertaining only to dwelling-houses) - The British Columbia Court of Appeal held that even if the perimeter search was unreasonable, or if the form of the warrant was improper, the evidence obtained (discovery of marijuana cultivation) was still admissible under s. 24(2) of the Charter - See paragraphs 107 to 118.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues - [See Civil Rights - Topic 8305 ].

Criminal Law - Topic 10.2

General principles - General and definitions - Possession defined - The accused were charged with possession of marijuana for the purpose of trafficking - Possession was defined in s. 4(3) of the Criminal Code - The British Columbia Court of Appeal held that an accused need not have a "possessory" interest in a marijuana crop to be in possession of the plants - The court held that one can be found in possession of something without having a proprietary interest in it - Ownership was irrelevant to the issue of possession - See paragraphs 163 to 172.

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - The accused were convicted of cultivation of marijuana but acquitted of possession of marijuana for the purpose of trafficking - The British Columbia Court of Appeal held that the trial judge failed to properly direct himself to the application of the "parties" provisions of the Criminal Code (s. 21(1)) - The court held that the evidence disclosed a continuum of activity of a commercial nature, and even if the main offence of possession for the purpose of trafficking was being committed by a person or persons unknown, the accused were liable as principals by reason of their aiding and abetting the commission of the offence - See paragraphs 173 to 186.

Criminal Law - Topic 3051

Search warrants - Narcotic control - A warrant could only be issued under the Narcotic Control Act where the place to be searched was a "dwelling-house" - For other locations the appropriate statute was the Criminal Code, s. 487 - A warrant was issued on forms under the Narcotic Control Act authorizing a search of commercial premises, with the wording being changed where appropriate - The British Columbia Court of Appeal held that s. 487(1)(e) of the Code operated to authorize, in this case, the omission of a requirement to report respecting or return the thing seized before a justice - The court held that the use of the Narcotic Control Act warrant was valid in this case - See paragraphs 96 to 106, 134 to 138.

Criminal Law - Topic 3183

Search warrants - Setting aside search warrants - Information - Sufficiency of form and content - The accused on appeal attacked the sufficiency of the information used to obtain a search warrant of premises found to contain a marijuana cultivation operation - The British Columbia Court of Appeal held that the information could not be dissected line by line, word by word, but must be examined having regard to the "totality of the circumstances" - The court declined to interfere with the conclusion reached by the trial judge that the information provided reasonable and probable grounds to support the warrant - See paragraphs 90 to 95.

Criminal Law - Topic 4358

Procedure - Jury charge - Directions regarding circumstantial evidence - The British Columbia Court of Appeal referred to a trial judge's jury charge on circumstantial evidence which constituted an adequate instruction - See paragraphs 156 to 157.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or question of law alone - The accused were convicted of cultivation of marijuana but acquitted of possession of marijuana for the purpose of trafficking - A Crown appeal from acquittal must raise a question of law alone - The British Columbia Court of Appeal held that the trial judge's misdirection on the law respecting the meaning of possession of the marijuana crop and his failure to give proper effect to those facts constituted a question of law alone under s. 676(1)(a) of the Criminal Code - Similarly, the failure of the trial judge to properly direct himself respecting the application of s. 21(1) of the Code raised a question of law alone - See paragraphs 182 to 185.

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - Two accused were charged with cultivating marijuana, which operation was found in a unit of a commercial building - Another growing operation in a nearby unit resulted in similar charges against one of the accused - Evidence respecting the operation in the nearby unit was admitted as similar fact evidence respecting the first charge - The British Columbia Court of Appeal affirmed that the trial judge correctly admitted the evidence, to rebut a likely innocent explanation and "to show system" - The court noted that the trial judge correctly balanced the probative value of the evidence and the potential prejudice to the accused, and appreciated that the two operations were not identical - See paragraphs 139 to 150.

Narcotic Control - Topic 575

Offences - Possession - Elements of - [See Criminal Law - Topic 10.2 ].

Cases Noticed:

R. v. Kokesch (1988), 46 C.C.C.(3d) 194; 43 C.R.R. 364 (B.C.C.A.), revd. [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207; 1 C.R.(4th) 62; [1990] 1 W.W.R. 193; 51 B.C.L.R.(2d) 157; 50 C.R.R. 285, refd to. [paras. 36, 81, 87, 109, 111].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 41].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 75 C.R.(3d) 1; 53 C.C.C.(3d) 316, refd to. [para. 42].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129; 45 C.R.R. 99, refd to. [paras. 43, 90].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257, refd to. [para. 43].

R. v. Sismey (1990), 55 C.C.C.(3d) 281 (B.C.C.A.), refd to. [paras. 48, 92].

R. v. L.E.D. (1989), 97 N.R. 321; 50 C.C.C.(3d) 142 (S.C.C.), refd to. [paras. 60, 146].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449; 79 C.R.(3d) 273; 49 C.R.R. 1; 74 D.L.R.(4th) 355; 75 O.R.(2d) 673, refd to. [para. 76].

R. v. Fraser (1990), 55 C.C.C.(3d) 551 (B.C.C.A.), refd to. [para. 83].

R. v. P.(E.K.) (1989), 72 C.R.(3d) 182 (B.C.S.C.), refd to. [para. 83].

R. v. Pugliese (1992), 52 O.A.C. 280; 71 C.C.C.(3d) 295 (C.A.), consd. [para. 84].

R. v. Leaney and Rawlinson (1987), 81 A.R. 247; 38 C.C.C.(3d) 263 (C.A.), affd. in part 99 N.R. 345; 99 A.R. 291; 50 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 84].

R. v. MacKay (1992), 17 B.C.A.C. 100; 29 W.A.C. 100 (C.A.), refd to. [para. 84].

R. v. Ramsay (1992), 13 B.C.A.C. 172; 24 W.A.C. 172, refd to. [para. 84].

R. v. Garofoli et al., [1990] 2 S.C.R. 1241; 116 N.R. 241; 43 O.A.C. 1; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 93].

R. v. Rao (1984), 4 O.A.C. 162; 12 C.C.C.(3d) 97 (C.A.), leave refused [1984] 2 S.C.R. ix; 57 N.R. 238; 4 O.A.C. 241, refd to. [paras. 99, 105].

R. v. Nicholson (1990), 53 C.C.C.(3d) 403 (B.C.C.A.), revd. 124 N.R. 400; 5 C.R.R.(2d) 384 (S.C.C.), refd to. [para. 99].

R. v. Grant (1992), 14 B.C.A.C. 94; 26 W.A.C. 94; 73 C.C.C.(3d) 315 (C.A.), dist. [para. 105].

R. v. Wiley (1991), 9 B.C.A.C. 271; 19 W.A.C. 271 (C.A.), refd to. [paras. 109, 111].

R. v. Lamb, [1989] 1 S.C.R. 1036; 96 N.R. 238; 97 A.R. 398, affing. 78 A.R. 252 (C.A.), consd. [para. 112].

R. v. Généreux (1992), 133 N.R. 241; 70 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 115].

R. v. Duncanson, [1992] 1 S.C.R. 836; 135 N.R. 117; 97 Sask.R. 96, affing. 93 Sask.R. 193 (C.A.), refd to. [para. 115].

R. v. Harris & Lighthouse Video Centre Ltd. (1987), 20 O.A.C. 261; 35 C.C.C.(3d) 1 (C.A.), leave refused [1987] 2 S.C.R. vii; 86 N.R. 400; 25 O.A.C. 240, refd to. [para. 115].

R. v. Fish (1989), 35 O.A.C. 245; 44 C.R.R. 115 (C.A.), refd to. [para. 115].

R. v. Neubauer (1989), 75 Sask.R. 109 (C.A.), refd to. [para. 115].

R. v. Ottenbreit (1989), 77 Sask.R. 3 (C.A.), refd to. [para. 115].

R. v. Bailey (1988), 87 N.S.R.(2d) 245; 222 A.P.R. 245; 39 C.R.R. 378 (C.A.), refd to. [para. 115].

R. v. Siddall (1992), 110 N.S.R.(2d) 117; 299 A.P.R. 117 (C.A.), refd to. [para. 115].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), refd to. [para. 123].

R. v. Charlton (T.S.) (1992), 15 B.C.A.C. 272; 27 W.A.C. 272 (C.A.), refd to. [paras. 124, 129].

R. v. Guberman (1985), 37 Man.R.(2d) 219; 23 C.C.C.(3d) 406 (C.A.), refd to. [para. 124].

R. v. Walker (G.B.) (1992), 15 B.C.A.C. 138; 27 W.A.C. 138 (C.A.), refd to. [para. 125].

R. v. Ullrich (1991), 9 B.C.A.C. 304; 19 W.A.C. 304; 69 C.C.C.(3d) 473 (C.A.), refd to. [para. 125].

McEvoy et al. v. Capital Motors (Pouce Coupe B.C.) Ltd. et al. (1991), 8 B.C.A.C. 1; 17 W.A.C. 1; 62 B.C.L.R.(2d) 161 (C.A.) refd to. [para. 125].

R. v. Upston (1988), 86 N.R. 16 (S.C.C.), refd to. [para. 127].

R. v. C.R.B. (1990), 107 N.R. 241; 55 C.C.C.(3d) 1, refd to. [para. 146].

Hong Kong (Attorney General) v. Shing (1989), 111 N.R. 306 (P.C.), consd. [para. 147].

R. v. Cooper, [1977] 1 S.C.R. 860; 14 N.R. 181; 34 C.C.C.(2d) 18, refd to. [para. 153].

Hodge's Case (1838), 168 E.R. 1136, refd to. [para. 157].

R. v. To (W.H.) (1992), 16 B.C.A.C. 223; 28 W.A.C. 223 (C.A.), refd to. [paras. 157, 159, 166].

R. v. Stanley (1990), 65 Man.R.(2d) 213 (C.A.), refd to. [para. 157].

R. v. Powell (1983), 9 C.C.C.(3d) 442 (B.C.C.A.), consd. [paras. 163, 164].

R. v. Barreau (1991), 9 B.C.A.C. 290; 19 W.A.C. 290 (C.A.), refd to. [paras. 168, 179].

R. v. Miller et al. (1984), 12 C.C.C.(3d) 54 (B.C.C.A.), refd to. [paras. 170, 171, 177].

R. v. Perdue (1974), 16 C.C.C.(2d) 231 (Alta. A.D.), refd to. [para. 171].

R. v. Woodward (1975), 23 C.C.C.(2d) 508 (Ont. C.A.), refd to. [para. 171].

R. v. Mete, [1973] 3 W.W.R. 709; 22 C.R.N.S. 387 (B.C.C.A.), consd. [para. 178].

R. v. Ryckman, Connors and Lynn (1981), 64 C.C.C.(2d) 192 (Ont. C.A.), consd. [paras. 180, 186].

Thambiah v. R., [1966] A.C. 37 (P.C.), refd to. [para. 180].

R. v. Paragon Computer Group Ltd. & Stesco International Ltd. (1985), 12 C.E.R. 185, refd to. [para. 180].

R. v. Baker and Allan (1974), 21 C.C.C.(2d) 572 (B.C.C.A.), refd to. [para. 182].

R. v. Ward (1979), 25 N.R. 514; 44 C.C.C.(2d) 498 (S.C.C.), refd to. [para. 182].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142; 77 C.R.(3d) 370; 56 C.C.C.(3d) 200, refd to. [para. 184].

R. v. Morin (1992), 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 184].

R. v. Fuller (1973), 1 N.R. 110 (S.C.C.), refd to. [para. 186].

R. v. Jackson (1977), 35 C.C.C.(2d) 331 (Ont. C.A.), refd to. [para. 186].

R. v. Roan, Brown and Sande (1985), 57 A.R. 296; 17 C.C.C.(3d) 534 (C.A.), refd to. [para. 186].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 119]; sect. 9 [paras. 119-121]; sect. 10 [para. 125]; sect. 10(a) [para. 119]; sect. 10(b) [paras. 28, 119]; sect. 11(b) [paras. 7, 75]; sect. 24(2) [paras. 41, 43, 107, 109, 114, 130].

Criminal Code, R.S.C. 1985, c. C-46, sect. 4(3) [para. 164]; sect. 21 [para. 79]; sect. 21(1) [paras. 173, 176-177]; sect. 487 [paras. 96, 100-101]; sect. 487(1) [para. 105]; sect. 487(1)(e) [paras. 103-104, 106]; sect. 495(1) [para. 123]; sect. 676(1)(a) [para. 184]; sect. 686(1)(a)(i) [para. 159]; sect. 686(1)(b)(iii) [para. 128]; sect. 686(4)(b)(ii) [para. 186].

Food and Drugs Act, R.S.C. 1985, c. F-27, sect. 42(1), sect. 51 [para. 99].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 6(1) [para. 120]; sect. 10 [para. 99]; sect. 12 [para. 100].

Counsel:

S. David Frankel, Q.C., for the respondent/appellant, Attorney General of Canada;

Robert E. Williamson, for the appellants/respondents, Arason and Derosier.

This appeal was heard in Kamloops, British Columbia, on October 27, 28 and 29, 1992, before Cumming, Proudfoot and Goldie, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered in Vancouver, British Columbia, by Cumming, J.A., on December 2, 1992.