R. v. Chuhaniuk (B.D.), (2010) 292 B.C.A.C. 89 (CA)

• Judge: Frankel, D. Smith and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 10, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 292 B.C.A.C. 89 (CA);2010 BCCA 403

R. v. Chuhaniuk (B.D.) (2010), 292 B.C.A.C. 89 (CA);

    493 W.A.C. 89

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. SE.017

Regina (respondent) v. Brent Douglas Chuhaniuk (appellant)

(CA036513; 2010 BCCA 403)

Indexed As: R. v. Chuhaniuk (B.D.)

British Columbia Court of Appeal

Frankel, D. Smith and Bennett, JJ.A.

September 16, 2010.

Summary:

The police had a warrant to search the "residence" of the accused for evidence of theft of electricity. He pleaded guilty to production of marijuana and possession of marijuana for the purpose of trafficking, following a voir dire ruling admitting evidence of a marijuana grow-operation discovered by the police during a "security check" of the shed and garage. The accused appealed his conviction. He sought to challenge the voir dire ruling and, to that end, applied to withdraw his guilty pleas. He submitted that the police breached his s. 8 Charter right to be free from unreasonable search and seizure, and that evidence seized from the shed and the garage after a second warrant was obtained should have been excluded under s. 24(2) of the Charter.

The British Columbia Court of Appeal dismissed the appeal. While the court agreed with the accused that his rights were breached, the court would not exclude the evidence. The repute of the administration of justice would be adversely affected by the exclusion of the evidence seized from the shed and the garage. The error on the part of the police was essentially one of judgment.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - A search warrant was limited to the accused's residence, for evidence of theft of electricity - A shed and a garage were located some 50 feet to the left of the residence - Some 65 feet to the right of the residence was a summer home - On arriving at the property, to allay officer "safety concerns", Corporal Lynch checked the outbuildings to the left of the residence; Corporal Osborne dealt with the summer house - Corporal Lunch discovered a marijuana grow-operation in a bunker beneath the garage; Corporal Osborne noticed marijuana and paraphernalia associated with marijuana production - The British Columbia Court of Appeal held that the security checks of the outbuildings were, from the outset, unlawful and violated s. 8 of the Charter - There was nothing in the record that supported a finding that officer-safety concerns were objectively reasonable - Accordingly, the common law power to minimize any risks associated with the execution of a warrant was not engaged - See paragraph 74.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - A search warrant was limited to the accused's residence, for evidence of theft of electricity - A police officer checked the shed and the garage ("security checks" in the interests of officer safety) and discovered a marijuana grow-operation - The police obtained a second search warrant, authorizing them to search the "Residence and Outbuildings" - They re-entered and fully searched the outbuildings - The trial judge held that the evidence seized from the shed and the garage was not obtained in breach of s. 8 of the Charter because those seizures were made pursuant to the second search warrant - The British Columbia Court of Appeal held that there were two flaws in that reasoning - First, the second warrant was not valid with respect to the shed and garage, because the grounds in relation to those premises (electrical meters and odour of marijuana) had been obtained as a result of unreasonable security checks - Second, given the close connection between the unauthorized entries and the execution of the second warrant, the evidence seized from those buildings pursuant to that warrant was obtained in violation of s. 8 - See paragraphs 78 to 81.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - The British Columbia Court of Appeal stated that s. 11(7) of the Controlled Drugs and Substances Act "is one of many 'exigent circumstances' exceptions to warrant requirements Parliament has enacted" - The court mentioned two other exceptions, both of which were in the Criminal Code, namely, s. 117.02(1) and s. 487.11 - "Section 487(1) is one of the most commonly used search warrant provisions in the Criminal Code. Such warrants are available to assist in the investigation of any federal offence even when a warrant can be obtained under another statute" - See paragraph 68.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - The British Columbia Court of Appeal stated that "[c]learly, when police officers have the grounds necessary to obtain a warrant and a reasonable basis to believe that the evidence being sought will be lost or destroyed before a warrant can be obtained, they can act without a warrant ... Similarly ... there will be situations where safety concerns will satisfy an exigent circumstances exception to a warrant requirement ... While safety concerns can trigger a statutory exigent circumstances exception to a warrant requirement, it does not follow that such concerns will always satisfy those exceptions. Those concerns must make obtaining a warrant impracticable ... However, I do not accept that officer-safety concerns that arise only upon, and as a result of, the commencement of a search are sufficient to justify that search being conducted without a warrant" - See paragraphs 70 to 73.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - A search warrant was limited to the accused's residence - A shed and a garage (the outbuildings) were located some 50 feet to the left of the residence - On arriving at the property, Corporal Lynch went to the outbuildings (officer-safety concerns) and discovered a marijuana grow-operation in a bunker beneath the garage - The British Columbia Court of Appeal disagreed with the Crown's submission that the "exigent circumstances" exception in s. 11(7) of the Controlled Drugs and Substances Act provided Lynch with authority to search the outbuildings - First, Lynch began his security checks before he had reasonable grounds to believe they contained drugs or evidence of drug-related offences - Accordingly, the first requirement of that provision (reasonable grounds to obtain a warrant) was not met - As for the second requirement (the impracticability of obtaining a warrant), even after Lynch detected the odour of marijuana outside the shed and garage, there was nothing to indicate that any evidence in those buildings could be lost or destroyed before a warrant could be obtained - See paragraph 75.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police obtained a warrant to search the accused's residence - They searched a garage and a shed on the property and discovered a marijuana grow-operation - The police did not re-enter and fully search the outbuildings until after they had obtained a search warrant for those premises - The trial judge was satisfied that the officers had acted out of an honest, albeit mistaken, belief that it was necessary in the interests of officer safety to check the outbuildings and that they had the authority to do so - The British Columbia Court of Appeal, balancing all the factors, concluded that, in the long-term, the repute of the administration of justice would be adversely affected by the exclusion of the evidence seized from the shed and the garage - The error on the part of the police was essentially one of judgment - See paragraphs 82 to 93.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - When the police attended at the accused's property, they had a warrant authorizing them to search only his "Residence" for evidence of theft of electricity - They discovered a marijuana grow-operation in a bunker beneath one of the outbuildings on the property - At issue was the authority of the police to examine and enter the outbuildings solely out of concern for their safety - The British Columbia Court of Appeal began by stating that the actions of the officers, from the outset, amounted to a "search" - Of particular note was the fact that it was evident from cross-examination of one of the officers that the odour of marijuana was not a factor in his decision to enter the outbuilding - The court did not agree that the warrant clothed the officers "with unfettered authority to 'survey' the entire property and 'clear' all structures on it" - See paragraphs 53 to 55.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - The British Columbia Court of Appeal stated that it knew of no authority for the Crown's proposition that a warrant to search one building on a property, without more, gave the police the right to examine the exterior and interior of other buildings on that property without entering them - "This is no doubt because to reach such a conclusion would be to seriously diminish the privacy interests the Charter is intended to protect. To accept the Crown's submission would mean that officers could attempt to look into every building on a property, even ones located a considerable distance away from the building named in the warrant and with no apparent connection to the criminal activity under investigation" - See paragraph 57.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - The British Columbia Court of Appeal recognized that the execution of warrants could give rise to officer-safety concerns -"However, the interests of law enforcement must be balanced with the rights of members of the public. ... [W]hen a warrant has been issued to search one place or premises on a particular property, the police, in the course of executing that warrant, have the authority, at common law, to inspect and enter other places or premises on that property to the extent reasonably necessary to protect themselves and others. However, they cannot take such action as a matter of course, or on the basis of generalized, non-specific, concerns. Before acting, they must have a reasonable basis for believing there is a possibility that their safety, or the safety of others, is at risk" - See paragraphs 58 and 59.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - The British Columbia Court of Appeal stated that "[t]here can be no question that police officers are acting in the exercise of a lawful duty when they execute a search warrant. The critical issue is whether conducting what I would call 'security checks' of places or premises on the same property as the place or premises covered by a warrant is a justifiable use of a power associated with that duty. In my view it is. ... [I]f police officers have reasonable grounds to be concerned that there is a possibility that someone who poses an immediate risk to their safety or the safety of others is in such other place or premises, then they can take reasonable steps to minimize that risk" - See paragraph 65.

Criminal Law - Topic 3051

Special powers - Search warrants - Narcotic control - [See third Civil Rights - Topic 1650.3 ].

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See all Civil Rights - Topic 1650.3 ].

Criminal Law - Topic 3154

Special powers - Power of search - Evidence obtained - Admission of - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 4228

Procedure - Pleas - Guilty plea - Effect of - The accused pleaded guilty to charges following a voir dire ruling - He then sought to challenge the ruling and, to that end, applied to withdraw his guilty pleas - Neither the accused nor his then counsel was aware of the jurisprudence dealing with the finality of guilty pleas - The Crown did not object to the accused being allowed to challenge the voir dire ruling - The British Columbia Court of Appeal stated that "[t]he proper procedure to follow when an accused wishes to preserve his or her right to appeal an adverse voir dire ruling is to admit the facts alleged by the Crown and invite the judge to convict ... Unfortunately ... there appears to be a continuing lack of understanding amongst some members of the criminal bar with respect to how to properly deal with this situation" - In the end result, the court agreed to hear the appeal on its merits - See paragraphs 45 to 49.

Narcotic Control - Topic 2023

Search and seizure - Search warrants - Scope of authority - [See both Civil Rights - Topic 1646 ].

Narcotic Control - Topic 2067

Search and seizure - Warrantless searches - Existence of exigent circumstances - [See all Civil Rights - Topic 1650.3 ].

Police - Topic 4

General - Effect of statutes - [See first and third Civil Rights - Topic 1650.3 ].

Police - Topic 3024

Powers - Common law - Scope of - [See third Criminal Law - Topic 3045 ].

Police - Topic 3186

Powers - Search - Private property - [See first Criminal Law - Topic 3045 ].

Police - Topic 3245

Powers - Seizure - Without arrest or warrant - [See second Civil Rights - Topic 1650.3 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, consd. [para. 33].

R. v. Carter (J.L.) (2003), 190 B.C.A.C. 178; 311 W.A.C. 178; 2003 BCCA 632, refd to. [para. 47].

R. v. Duong (T.) (2006), 228 B.C.A.C. 183; 376 W.A.C. 183; 2006 BCCA 325, refd to. [para. 47].

R. v. Bowman (B.D.) (2008), 261 B.C.A.C. 285; 440 W.A.C. 285; 2008 BCCA 410, refd to. [para. 47].

R. v. Webster (B.L.) (2008), 262 B.C.A.C. 168; 441 W.A.C. 168; 238 C.C.C.(3d) 270; 2008 BCCA 458, refd to. [para. 47].

R. v. N.M., [2007] O.T.C. Uned. H01; 223 C.C.C.(3d) 417 (Sup. Ct.), refd to. [para. 51].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, consd. [para. 56].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, consd. [para. 60].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 60].

R. v. Lau (C.F.) (2003), 186 B.C.A.C. 3; 306 W.A.C. 3; 175 C.C.C.(3d) 273; 2003 BCCA 337, consd. [para. 62].

R. v. Schedel (B.C.) (2003), 184 B.C.A.C. 166; 302 W.A.C. 166; 175 C.C.C.(3d) 193; 2003 BCCA 364, consd. [para. 62].

R. v. Cornell (J.M.) (2010), 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, consd. [para. 62].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, consd. [para. 63].

R. v. Johnson, 2005 BCPC 432, consd. [para. 66].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, consd. [para. 68].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 68].

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. 69].

R. v. McCormack (R.D.) (2000), 133 B.C.A.C. 44; 217 W.A.C. 44; 143 C.C.C.(3d) 260; 2000 BCCA 57, refd to. [para. 70].

R. v. Narayan (M.) (2007), 245 B.C.A.C. 243; 405 W.A.C. 243; 2007 BCCA 429, consd. [para. 71].

R. v. Store, 2008 BCPC 259, folld. [para. 77].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 79].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 80].

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. 82].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 245 C.C.C.(3d) 1; 2009 SCC 32, refd to. [para. 82].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 82].

R. v. Wong (J.S.) (2010), 285 B.C.A.C. 157; 482 W.A.C. 157; 253 C.C.C.(3d) 315; 2010 BCCA 160, refd to. [para. 82].

R. v. Ramage (R.) (2010), 265 O.A.C. 158; 2010 ONCA 488, refd to. [para. 82].

R. v. Reddy (C.J.) (2010), 282 B.C.A.C. 51; 476 W.A.C. 51; 251 C.C.C.(3d) 151; 2010 BCCA 11, appld. [para. 83].

R. v. Vu (H.M.) (2004), 200 B.C.A.C. 59; 327 W.A.C. 59; 184 C.C.C.(3d) 545; 2004 BCCA 230, refd to. [para. 84].

R. v. LaPlante (1987), 59 Sask.R. 251; 40 C.C.C.(3d) 63 (C.A.), refd to. [para. 84].

R. v. Hall (S.W.), [2003] B.C.T.C. 1433; 2003 BCSC 1433, refd to. [para. 84].

R. v. Nguyen (N.D.) et al. (1999), 17 B.C.T.C. 81 (S.C.), refd to. [para. 84].

R. v. Le (2005), 127 C.R.R.(2d) 277; 2005 BCPC 47, dist. [para. 85].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 88].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 90].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2) [para. 23].

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11(1), sect. 11(7) [para. 24].

Criminal Code, R.S.C. 1985, c. C-46, sect. 117.02(1), sect. 487.11 [para. 68].

Counsel:

N.L. Cobb and N. Seto, for the appellant;

W.P. Riley, for the respondent.

This appeal was heard on May 10, 2010, at Vancouver, British Columbia, by Frankel, D. Smith and Bennett, JJ.A., of the British Columbia Court of Appeal. In written reasons by Frankel, J.A., the Court of Appeal delivered the following reasons for judgment, dated September 16, 2010.