R. v. Van Diep (M.), 2015 BCCA 264

• Judge: Bauman, C.J.B.C., Neilson and Savage, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 27, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 264;(2015), 373 B.C.A.C. 230 (CA)

R. v. Van Diep (M.) (2015), 373 B.C.A.C. 230 (CA);

    641 W.A.C. 230

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JN.038

Regina (respondent) v. Mai Van Diep (appellant)

(CA41136; 2015 BCCA 264)

Indexed As: R. v. Van Diep (M.)

British Columbia Court of Appeal

Bauman, C.J.B.C., Neilson and Savage, JJ.A.

June 11, 2015.

Summary:

A BC Hydro employee reported the theft of electricity occurring on a property. The RCMP obtained and executed a search warrant for two buildings on the property. The search revealed a large marijuana grow operation in one of the buildings and the accused hiding in that building. The accused was charged with production of marijuana and possession of marijuana for the purpose of trafficking. The accused asserted that omissions and errors made by an RCMP officer (Davies) in the information to obtain (the ITO) demonstrated that there had been insufficient grounds for the warrant's issuance, and the search was therefore unlawful and a breach of his s. 8 Charter rights.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 1435, ruled that the warrant had been properly issued (the voir dire ruling).

The British Columbia Supreme Court found the accused guilty on both charges. The accused appealed, asserting that the trial judge's voir dire ruling was based on a misapprehension of material evidence (on which building the hydro meters were located). He also asserted that the judge wrongly found that an error made by Davies in paragraph 15 of the ITO (that both meters, instead of just one, had been tested) was a minor mistake made in good faith, and that she erred in permitting amplification of that paragraph.

The British Columbia Court of Appeal dismissed the appeal. Although the trial judge misapprehended the meters' location, placing them on the trailer instead of the outbuilding, and she erroneously excised the paragraph of the ITO as a result of the misapprehension, the factual error had no impact on her reasoning or her conclusion that there remained reasonable grounds for the warrant's issuance. Further, the judge made no reversible error in finding that Davies' error was made in good faith, and in permitting amplification of paragraph 15 of the ITO.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - See paragraphs 33 to 42.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - See paragraphs 43 to 50.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - See paragraphs 43 to 50.

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - See paragraphs 43 to 50.

Cases Noticed:

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, refd to. [para. 30].

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. 31].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 31].

R. v. Morelli - see R. v. U.P.M.

R. v. Smith (L.K.) (2005), 213 B.C.A.C. 286; 352 W.A.C. 286; 199 C.C.C.(3d) 404; 2005 BCCA 334, refd to. [para. 32].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514; 97 C.C.C.(3d) 193 (C.A.), dist. [para. 35].

R. v. Lohrer (A.W.) (2004), 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 35].

Counsel:

M. Bozic, for the appellant;

T. Gerhart, for the respondent.

This appeal was heard at Vancouver, British Columbia, on January 27, 2015, by Bauman, C.J.B.C., Neilson and Savage, JJ.A., of the British Columbia Court of Appeal. Neilson, J.A., delivered the following reasons for judgment for the court on June 11, 2015.