R. v. Le (T.D.) et al., (2006) 228 B.C.A.C. 73 (CA)

• Judge: Southin, Donald and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 16, 2006
• Jurisdiction: British Columbia
• Citations: (2006), 228 B.C.A.C. 73 (CA);2006 BCCA 298

R. v. Le (T.D.) (2006), 228 B.C.A.C. 73 (CA);

    376 W.A.C. 73

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. JN.034

Regina (appellant) v. Thi Da Le (respondent)

(CA033369)

Regina (appellant) v. Tuan Dua Nguyen (respondent)

(CA033370)

Regina (appellant) v. Manh Tien Tran (respondent)

(CA033383)

(2006 BCCA 298)

Indexed As: R. v. Le (T.D.) et al.

British Columbia Court of Appeal

Southin, Donald and Kirkpatrick, JJ.A.

June 16, 2006.

Summary:

A justice of the peace issued a search warrant on the basis of an information to obtain in which a police officer stated that he had reasonable grounds to believe that an indictable offence had been committed based, in part, on a facsimile received from an employee of B.C. Hydro (the theft report). The warrant was executed. Le and Nguyen were each charged with production of a controlled substance, possession for the purpose of trafficking and theft of electricity. Le and Nguyen applied to have the evidence that was obtained pursuant to the warrant excluded on the basis that their s. 8 Charter rights had been infringed.

The British Columbia Provincial Court held that the justice of the peace did not have sufficient grounds to issue the warrant. The court concluded that the search was warrantless and excluded the resulting evidence pursuant to s. 24(2) of the Charter. The court acquitted Le and Nguyen. The Crown appealed, asserting that the Provincial Court erred in holding that the theft reports could not support the issuance of the warrant. The identical issue arose in an appeal in the case of R. v. Tran. By agreement between the parties the appeals were argued on the facts presented in R. v. Le and R. v. Nguyen.

The British Columbia Court of Appeal allowed the appeals, set aside the acquittals and ordered new trials.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - A police officer stated in an information to obtain that he had reasonable grounds to believe that an indictable offence had been committed based, in part, on a facsimile received from a B.C. Hydro employee (the theft report) - A justice of the peace issued a search warrant - The warrant was executed - The accused were charged with drug offences and theft of electricity - The trial judge held that there had been insufficient grounds to issue the warrant and excluded the resulting evidence (Charter, ss. 8 and 24(2)) - The British Columbia Court of Appeal allowed the accused's appeals - The justice of the peace had before him information from technicians with specialized skill and training who were employed by the very entity complaining about the theft - He was justified in finding that the source of the information was reliable - The technicians' measurements disclosed that more electricity was being used than was being recorded for billing purposes - Based on that discrepancy, the technicians stated that they believed that pre-metered theft was occurring - This was sufficient to give rise to a reasonable grounds to believe that a crime was probably occurring.

Cases Noticed:

R. v. Lam (N.T.) et al., [2004] B.C.T.C.1799; 2004 BCSC 1799, agreed with [para. 9].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 15].

Sabour v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 69; 9 Imm. L.R.(3d) 61 (T.D.), refd to. [para. 15].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 254 D.L.R.(4th) 200, refd to. [para. 15].

Restaurant Le Clémenceau Inc. v. Drouin, J., et al., [1987] 1 S.C.R. 706; 77 N.R. 72; 42 D.L.R.(4th) 761, refd to. [para. 19].

R. v. Al-Maliki (A.) (2005), 210 B.C.A.C. 161; 348 W.A.C. 161; 2005 BCCA 157, refd to. [para. 22].

Counsel:

S.D. Frankel, Q.C., for the appellant;

R.C.C. Peck, Q.C., S. Sugarman and N.E. Harris, for the respondents.

These appeals were heard at Vancouver, British Columbia, on May 16, 2006, by Southin, Donald and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. Kirkpatrick, J.A., delivered the following reasons for judgment for the court on June 16, 2006.