R. v. Wilson (N.R.),

• Jurisdiction: British Columbia
• Judge: Rowles, Chiasson and Frankel, JJ.A.
• Neutral Citation: 2011 BCCA 252
• Citation: 2011 BCCA 252,(2011), 305 B.C.A.C. 254 (CA),272 CCC (3d) 269,305 BCAC 254,(2011), 305 BCAC 254 (CA),305 B.C.A.C. 254
• Date: 27 May 2011
• Court: Court of Appeal (British Columbia)

R. v. Wilson (N.R.) (2011), 305 B.C.A.C. 254 (CA);

    515 W.A.C. 254

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. MY.055

Regina (respondent) v. Nolan Ross Wilson (appellant)

(CA038202; 2011 BCCA 252)

Indexed As: R. v. Wilson (N.R.)

British Columbia Court of Appeal

Rowles, Chiasson and Frankel, JJ.A.

May 27, 2011.

Summary:

Police obtained a search warrant for the accused's "residence and outbuilding", citing reasonable grounds to believe that there was a marijuana grow operation in the outbuilding. The search found 594 plants in the residence and 687 plants in the outbuilding. The accused was charged with production of marijuana and possession of marijuana for the purpose of trafficking. The trial judge ruled that the residence search was unreasonable (Charter, s. 8), as the information to obtain (ITO) did not disclose reasonable grounds to believe marijuana would be found in the residence. The evidence of plants in the residence was excluded under s. 24(2). The outbuilding search was also unreasonable due to material non-disclosure in the ITO. However, evidence of the outbuilding plants was admitted and the accused was convicted on both counts. The accused appealed the admission of that evidence. The Crown argued that the trial judge erred in finding that the outbuilding search was unreasonable, submitting that there was no non-disclosure vitiating the warrant.

The British Columbia Court of Appeal dismissed the appeal. The outbuilding search was not vitiated by non-disclosure in the ITO. Accordingly, there was no unreasonable search contrary to s. 8, making it unnecessary to consider whether the evidence obtained should have been excluded or not.

Criminal Law - Topic 3111

Special powers - Setting aside search warrants - General - The British Columbia Court of Appeal stated that "when an accused seeks to challenge a warrant there is no right to a voir dire and a trial judge should generally be able to decide whether to hold one on the basis of the submissions of counsel ... Understandably, if the parties agree there should be a voir dire, then it is likely one will be held, although a judge is certainly not bound by such an agreement. However, if a voir dire is declared, then it does not automatically follow that witnesses will be called. A trial judge may decide that it is appropriate to limit a voir dire to arguments regarding, for example, the scope of the warrant or the facial sufficiency of the ITO. Every case will depend on its particular facts. Further, an accused does not have a right to cross-examine the informant, but must obtain leave to do so. ... Again, if the parties agree cross-examination should be permitted, whether at large or on a limited basis, then a trial judge may well accede to that agreement. However, the fact that an accused is granted leave to cross-examine does not give the Crown the ability to examine the informant in-chief with respect to the contents of the ITO. More specifically, it does not provide the Crown with an opportunity to do what occurred here, namely, to attempt to "amplify" the ITO. Indeed, I am not aware of another case in which the voir dire has proceeded in this way. The granting of leave to cross-examine allows an accused to challenge the basis on which a search warrant was granted. The warrant having been obtained on the basis of an ITO, that document stands as the informant's evidence in-chief. Although an accused in entitled to challenge the correctness of the statements in an ITO, and to bring out other facts that undermine the efficacy and reliability of those statements, the Crown is not entitled, in the first instance, to seek to bolster an ITO or to correct errors in it. In my view, the Crown is limited to re-examining the informant on matters arising in cross-examination. The Crown is not entitled to supplement, qualify, or otherwise explore areas not raised in cross-examination" - See paragraphs 63 to 67.

Criminal Law - Topic 3117

Special powers - Setting aside search warrants - General - Cross-examination of affiant - The British Columbia Court of Appeal stated that "when an accused seeks to contest the validity of a search warrant by challenging the ITO through cross-examination of the informant, the matter should generally proceed as follows: (a) The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted; (b) If the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused must obtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination; (c) Cross-examination should proceed to the extent permitted by the order granting leave; (d) Re-examination, if any, should follow the cross-examination; and (e) The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant." - See paragraph 69.

Criminal Law - Topic 3118

Special powers - Setting aside search warrants - General - Evidence (incl. amplification evidence) - [See Criminal Law - Topic 3184 ].

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - Police obtained a warrant to search the accused's outbuilding - The information to obtain (ITO) disclosed that there were two anonymous tips (one in person and quite detailed) of a marijuana grow operation, evidence that a Forward Looking Infrared examination (FLIR) detected significant heat emanating from the outbuilding and evidence that the investigating police officer detected a brief smell of marijuana coming from the direction of the outbuilding - A warrant issued - The trial judge held that without the "smell evidence", the officer lacked reasonable grounds to believe that the outbuilding contained a grow operation - The trial judge held that the warrant was vitiated by material non-disclosure of facts respecting steps taken to isolate the source of the marijuana smell (eg., officer did not disclose that he spent 30-40 minutes there over two days and only briefly smelled marijuana) - The British Columbia Court of Appeal held that "the trial judge erred in ruling the search warrant invalid solely by reason of what he found to be material non-disclosure in the ITO" - The proper test was "the trial judge's role in reviewing the validity of a search warrant is to consider whether the material filed in support of the warrant, as amplified on review, could support the issuance of the warrant. While evidence of fraud, material non-disclosure, or misleading information are all relevant to this enquiry, their sole impact is to determine whether there is a continuing basis to support the warrant" - The court stated that a warrant "could" have been issue based on the record, as amplified on review - See paragraphs 37 to 55.

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevance - Voir dire - General - [See Criminal Law - Topic 3111 ].

Criminal Law - Topic 5214.93

Evidence and witnesses - Admissibility and relevancy - Voir dire - Use of evidence taken during - The British Columbia Court of Appeal stated that "when evidence is ruled admissible on a voir dire at a judge-alone trial and the parties agree there is no need to repeat it, care must be taken to ensure that only evidence that is admissible on the trial proper becomes part of the trial record" - See paragraph 71.

Cases Noticed:

R. v. Ling (M.D.) (2009), 266 B.C.A.C. 281; 449 W.A.C. 281; 241 C.C.C.(3d) 409; 2009 BCCA 70, leave to appeal refused [2009] 2 S.C.R. ix; 399 N.R. 400; 285 B.C.A.C. 320; 482 W.A.C. 320, refd to. [para. 31].

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. 37].

R. v. Bisson (J.) et autres, [1994] 3 S.C.R. 1097; 173 N.R. 237; 65 Q.A.C. 241, refd to. [para. 37].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 37].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

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. 37].

R. v. Bacon (J.D.) et al. (2010), 285 B.C.A.C. 108; 482 W.A.C. 108; 2010 BCCA 135, leave to appeal refused [2010] S.C.C.A. No. 213, refd to. [para. 37].

Quinn v. Leathem, [1901] A.C. 495 (H.L.), refd to. [para. 41].

R. v. Bisson (J.) et autres (1994), 60 Q.A.C. 113; 87 C.C.C.(3d) 440 (C.A.), refd to. [para. 50].

R. v. Whitaker (D.P.) (2008), 254 B.C.A.C. 234; 426 W.A.C. 234; 2008 BCCA 174, leave to appeal refused [2008] 3 S.C.R. x; 391 N.R. 394; 279 B.C.A.C. 320; 473 W.A.C. 320, refd to. [para. 52].

R. v. Cook, [1990] B.C.J. No. 37 (C.A.), refd to. [para. 56].

R. v. Caissey (L.M.) (2007), 422 A.R. 208; 415 W.A.C. 208; 227 C.C.C.(3d) 322; 2007 ABCA 380, affd. [2008] 3 S.C.R. 451; 382 N.R. 198; 446 A.R. 397; 442 W.A.C. 397; 2008 SCC 65, refd to. [para. 57].

R. v. Neubert (J.S.) (2001), 150 B.C.A.C. 15; 245 W.A.C. 15; 2001 BCCA 88, refd to. [para. 60].

Lahaie et al. v. Canada (Attorney General) (2010), 267 O.A.C. 135; 101 O.R.(3d) 241; 2010 ONCA 516, leave to appeal refused (2011), 420 N.R. 400 (S.C.C.), refd to. [para. 60].

R. v. Vukelich (M.) (1996), 78 B.C.A.C. 113; 128 W.A.C. 113; 108 C.C.C.(3d) 193 (C.A.), leave to appeal refused [1997] 2 S.C.R. xvi; 216 N.R. 239; 98 B.C.A.C. 80; 161 W.A.C. 80, refd to. [para. 62].

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; 149 C.C.C.(3d) 449; 2000 SCC 65, refd to. [para. 68].

R. v. Jir (D.P.) (2010), 295 B.C.A.C. 231; 501 W.A.C. 231; 264 C.C.C.(3d) 64; 2010 BCCA 497, refd to. [para. 71].

R. v. Ballendine (K.D.) (2011), 304 B.C.A.C. 20; 513 W.A.C. 20; 2011 BCCA 221, refd to. [para. 71].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), §§ 16.183, 16.184 [para. 67].

Counsel:

J.W. Green, for the appellant;

W.P. Riley, for the respondent.

This appeal was heard on April 11, 2011, at Vancouver, B.C., before Rowles, Chiasson and Frankel, JJ.A., of the British Columbia Court of Appeal.

On May 27, 2011, Frankel, J.A., delivered the following judgment for the Court of Appeal.