R. v. Bohn (J.A.),

• Jurisdiction: British Columbia
• Judge: Hollinrake, Ryan and Huddart, JJ.A.
• Neutral Citation: 2000 BCCA 239
• Citation: (2000), 136 B.C.A.C. 263 (CA),2000 BCCA 239,145 CCC (3d) 320,33 CR (5th) 265,136 BCAC 263,(2000), 136 BCAC 263 (CA),136 B.C.A.C. 263
• Date: 28 October 1999
• Court: Court of Appeal (British Columbia)

R. v. Bohn (J.A.) (2000), 136 B.C.A.C. 263 (CA);

    222 W.A.C. 263

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. JN.008

Regina (respondent) v. Jeffery Arthur Bohn (appellant)

(CA023885; 2000 BCCA 239)

Indexed As: R. v. Bohn (J.A.)

British Columbia Court of Appeal

Hollinrake, Ryan and Huddart, JJ.A.

May 2, 2000.

Summary:

The accused was convicted of one count of theft of electricity, one count of unlawful cultivation of marijuana and one count of possession of marijuana for the purpose of trafficking. The accused appealed against conviction.

The British Columbia Court of Appeal allowed the appeal, set aside the convictions and entered acquittals on all three counts.

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure defined - Police officers executed a Criminal Code warrant of a private residence without being in possession of the actual warrant - There was no urgency respecting the timing of the search - The British Columbia Court of Appeal held that although the officers advised the owner of the existence of the warrant and the reason for their presence, they could not produce the warrant, which confirmed that the search had prior auth­orization from an independent body - The court held that failure to produce the war­rant on request, contrary to s. 29 of the Criminal Code, was a significant breach of s. 8 of the Charter - See paragraphs 34 to 36.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - Police breached ss. 8 and 10(b) of the Charter in searching the accused's residence - The evidence obtained was non-conscriptive - The s. 8 breach was serious (the police failed to bring the Criminal Code warrant with them and thus breached s. 29 of the Code) - There was an absence of good faith because their mistake was not reasonable -The s. 10(b) breach was also serious because it also demonstrated the police's inattention to the accused's rights - The British Columbia Court of Appeal held that the cumulative effect of the Charter breaches was serious and excluded the evidence obtained, rather than bring the administration of justice into disrepute by its admission - See paragraphs 42 to 47.

Civil Rights - Topic 4605

Right to counsel - Denial of - Due to lack of time or opportunity - While conducting a search of the accused's home, police advised him of his right to counsel but told him he could not consult a lawyer until he reached the police station - The reason for this, uncommunicated to the accused, was that police could not afford the accused privacy because of the nature of the ongoing search - The British Columbia Court of Appeal affirmed that the ac­cused's s. 10(b) Charter right to counsel was denied, although no statements of any importance were made as a result of the search - See paragraphs 37 to 41.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Exe­cution of - General - Section 29(1) of the Criminal Code referred to the duty of every one executing a process or warrant to have it with him, where feasible to do so, and produce it when requested to do so - The British Columbia Court of Appeal held that s. 29(1) was imperative - Absent exigent circumstances, i.e., where it was not feasible, the section imposed a duty on police officers which must be fulfilled - It was one of the requirements for the lawful execution of a Criminal Code warrant - See paragraph 28.

Cases Noticed:

R. v. Lamoureux, [1988] O.J. No. 976 (Dist. Ct.), refd to. [para. 19].

R. v. George (1934), 63 C.C.C. 225 (B.C.C.A.), refd to. [para. 26].

Gallaird v. Laxton (1862), 2 B. & S. 363; 31 L.J.M.C. 123; 9 Cox C.C. 127; 121 E.R. 1109 (Q.B.), refd to. [para. 26].

Codd v. Cabe (1876), 1 Ex. D. 352; 45 L.J.M.C. 101, refd to. [para. 26].

R. v. Linder, [1924] 2 W.W.R. 646; 42 C.C.C. 289 (Alta. C.A.), refd to. [para. 26].

R. v. J.E.B. (1989), 94 N.S.R.(2d) 312; 247 A.P.R. 312; 52 C.C.C.(3d) 224 (C.A.), consd. [para. 30].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 32].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 33].

R. v. Playford (1987), 24 O.A.C. 161; 40 C.C.C.(3d) 142 (C.A.), refd to. [para. 37, footnote 3].

R. v. Standish (1988), 41 C.C.C.(3d) 340; 24 B.C.L.R.(2d) 323 (C.A.), refd to. [para. 37, footnote 3].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 41].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 42].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163, refd to. [para. 44].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 117 C.C.C.(3d) 193 (C.A.), refd to. [para. 46].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 10(b) [para. 3]; sect. 24(2) [para. 40].

Criminal Code, R.S.C. 1985, c. C-46, sect. 29 [para. 23].

Authors and Works Noticed:

Hutchison, Scott, Morton, James, and Bury, Michael, Search & Seizure Law in Canada, p. 17-5 [para. 31, footnote 2].

Counsel:

N.L. Cobb, for the appellant;

P.R. La Prairie, for the respondent.

This appeal was heard at Vancouver, British Columbia, on October 28, 1999, before Hollinrake, Ryan and Huddart, JJ.A., of the British Columbia Court of Appeal. On May 2, 2000, Ryan, J.A., delivered the following judgment for the court.