R. v. Bacon (J.D.) et al., (2010) 285 B.C.A.C. 108 (CA)

• Judge: Donald, Kirkpatrick and Tysoe, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 18, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 285 B.C.A.C. 108 (CA);2010 BCCA 135

R. v. Bacon (J.D.) (2010), 285 B.C.A.C. 108 (CA);

    482 W.A.C. 108

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. MR.057

Regina (appellant) v. Jonathan David Bacon (respondent)

(CA036241)

Regina (appellant) v. Godwin Kai-Yan Cheng (respondent)

(CA036242)

Regina (appellant) v. Rayleene Melony Burton (respondent)

(CA036243; 2010 BCCA 135)

Indexed As: R. v. Bacon (J.D.) et al.

British Columbia Court of Appeal

Donald, Kirkpatrick and Tysoe, JJ.A.

March 18, 2010.

Summary:

The three accused were acquitted on a 15 count information charging drugs and weapons offences, after the trial judge excluded evidence seized incidental to an arrest that was found to be unlawful and evidence gathered pursuant to a search warrant that he found to be invalid. The Crown appealed, arguing that the trial judge erred in treating the rejection of a prior search warrant application as a determination binding on the police that rendered the arrest unlawful, and in taking the wrong approach in reviewing the validity of the warrant.

The British Columbia Court of Appeal agreed that the trial judge committed the alleged errors, allowed the appeal and directed a new trial.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - The accused were charged with drug and weapons offences - The trial judge acquitted the accused, holding that the search warrant was invalid because of inflammatory material and objectionable features in the information - The Crown appealed, arguing that the trial judge erred in taking the wrong approach in reviewing the validity of the warrant - The British Columbia Court of Appeal agreed with the Crown's argument and allowed the appeal - The court stated that the judge should have stripped away the objectionable features and examined the sufficiency of what remained - He did not engage in that exercise and thereby committed reversible error - The court stated that there might be, as the accused proposed, a residual discretion to strike down a warrant for abuse of process; however, any mistakes by the affiant in this case were a long way from an abuse of process - See paragraphs 23 to 29.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - [See Police - Topic 3063 ].

Criminal Law - Topic 3048

Special powers - Search warrants - Validity of - Severability of partially defective warrant or information - [See first Criminal Law - Topic 3046 ].

Criminal Law - Topic 3051

Special powers - Search warrants - Narcotic control - [See first Criminal Law - Topic 3046 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See first Criminal Law - Topic 3046 ].

Criminal Law - Topic 3106

Special powers - Issue of search warrants - Discretion of judge - [See first Criminal Law - Topic 3046 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See first Criminal Law - Topic 3046 ].

Narcotic Control - Topic 2028

Search and seizure - Search warrants - Issuance of - [See first Criminal Law - Topic 3046 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See first Criminal Law - Topic 3046 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Police - Topic 3063 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - Shortly after a justice of the peace (JP) refused an initial request for a search warrant, a police surveillance team made certain observations which caused them to believe they had reasonable and probable grounds to arrest the accused for drug offences - Constable Forester, the lead investigator, authorized arrests - In incidental searches, the police discovered further evidence which led to issuance of a search warrant on a second application by Constable Forester - The trial judge acquitted the accused on drug and weapons offences, holding that the police lacked adequate grounds to arrest and the second warrant should not have been authorized - The Crown appealed, arguing that the trial judge effectively treated the JP's warrant refusal as a binding pronouncement such that it was simply not open to Constable Forester to believe that there were grounds to authorize the arrest - The British Columbia Court of Appeal allowed the appeal - The court held that the JP's decision did not bind anyone - The validity of the arrest had to be judged according to whether there was a subjective belief and objectively reasonable grounds - The judge in this case acted upon a presumed absence of subjective belief, based on the binding effect of the JP's decision - The trial judge might also have fallen into the error of running together both subjective and objective elements - See paragraphs 12 to 22.

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Police - Topic 3063 ].

Cases Noticed:

R. v. Sismey (1990), 55 C.C.C.(3d) 281; 1 C.R.R.(2d) 381 (B.C.C.A.), refd to. [para. 11].

R. v. Duchcherer (D.E.) et al. (2006), 224 B.C.A.C. 251; 370 W.A.C. 251; 208 C.C.C.(3d) 201; 2006 BCCA 171, refd to. [para. 19].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [para. 20].

R. v. Charlton (T.S.) (1992), 15 B.C.A.C. 272; 27 W.A.C. 272 (C.A.), refd to. [para. 20].

R. v. Crocker (L.) (2009), 275 B.C.A.C. 190; 465 W.A.C. 190; 247 C.C.C.(3d) 193; 2009 BCCA 388, refd to. [para. 21].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161, refd to. [para. 23].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 23].

R. v. Nguyen (K.T.) (2007), 241 B.C.A.C. 244; 399 W.A.C. 244; 2007 BCCA 264, refd to. [para. 23].

R. v. Johnston (L.L.) (2004), 196 B.C.A.C. 19; 322 W.A.C. 19; 183 C.C.C.(3d) 157; 2004 BCCA 148, refd to. [para. 23].

Counsel:

W.P. Riley and C.F. Hough, for the Crown/appellant;

K.S. Westlake, Q.C., for the respondent, Jonathan David Bacon;

M.R. Jetté, for the respondent, Godwin Kai-Yan Cheng;

J.R. Ray, for the respondent, Rayleene Melony Burton.

This appeal was heard in Vancouver, British Columbia, on February 1-2, 2010, by Donald, Kirkpatrick and Tysoe, JJ.A., of the British Columbia Court of Appeal. The following written reasons for judgment of the court were delivered on March 18, 2010, by Donald, J.A.