J. 2000 SKQB 355 Q.B.J. A.D. 1998 No. 32 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and BYRON LESLIE DERKSEN Q.B.J. A.D. 1998 No. 32 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and KERRY PAUL BEGRAND-FAST Mark Brayford, Q.C. Hugh M. Harradence, Q.C. for the applicants W. Rod Donlevy for the Crown FIAT LAING J. August 16, 2000 [1] The applicants, who are charged separately with cultivating marihuana and possession of marihuana have plead not guilty to the charges. They are scheduled for separate trials this fall before Judge and jury. As is the practice in this jurisdiction, defence counsel have brought a Charter motion in advance of jury selection to set aside: (1) A section 186 CCC 60 day authorization for electronic surveillance on each accused dated January 30, 1997 primarily directed at their residences and their cell phones. (2) A section 487.01(4) 9 day video surveillance authorization dated March 19, 1997 for the residence of the applicant Derksen authorizing the observance of the applicant Begrand-Fast. (3) A search warrant to search the residence of the applicant Derksen dated April 1, 1997 which resulted in the seizure of 365 marihuana plants and led to the present charges. [2] number of grounds were advanced by defence counsel which will be dealt with more specifically hereinafter. In general terms it is the position of the applicants that the authorization for electronic surveillance should be set aside, and as information obtained from the electronic surveillance was utilized in obtaining the video surveillance warrant and the subsequent search warrant both of these warrants should also be set aside on the basis they are derivative of the electronic authorization which is alleged to be unlawful. The applicants seek to have the evidence obtained pursuant to the authorizations and warrant excluded from trial, and state it is also an appropriate case to direct a stay of proceedings on all charges against both applicants. [3] In addition the applicants seek to set aside the search warrant on the basis that police officers allowed two news media camera crews onto the Derksen premises to film during the course of the search. It is alleged that this action on the part of the police rendered the search unreasonable under s. 8 of the Charter. In this respect the applicants rely on the British Columbia Court of Appeal decision of R. v. West (1998), 1997 CanLII 3792 (BC CA), 12 C.R. (5th) 106. Preliminary Inquiry Evidence [4] At the outset of the hearing Crown counsel took exception to the fact that applicants’ counsel were relying on portions of questions and answers from the preliminary inquiry in support of their application. indicated to applicants’ counsel that preliminary inquiry evidence could not be considered for admissibility until it was made evidence on this application which would require that those portions of the preliminary inquiry transcript sought to be relied upon should be made evidence in this proceeding by way of an affidavit attaching the same. Applicants’ counsel undertook to do so and the argument proceeded on the assumption they would, and this undertaking has been complied with. [5] Crown counsel’s position was that evidence tendered at this hearing is part of the trial evidence and as such should be tendered viva voce, and in any event evidence given at the preliminary inquiry should not be used as trial evidence in the absence of any of the exceptions justifying admission of preliminary inquiry evidence. Crown counsel candidly agreed that the Crown often consents to the use of preliminary inquiry evidence on Charter applications such as this, but maintains that where the Crown does not agree, the Court should apply the normal rules of evidence. [6] Applicants’ counsel stated that in his experience the Crown usually agreed to the admissibility of preliminary inquiry evidence on this type of Charter application and also relied on an earlier fiat of Grotsky J. of this court in Stensrud v. R., 1986 CanLII 3310 (SK QB), [1987] W.W.R. 234. That was case that dealt with the old “Wilson” type of application where it was necessary for applicant defence counsel to establish prima facie case of fraud, material non-disclosure or misleading disclosure before the sealed authorization packet could be opened up to determine whether in fact there had been such conduct on the part of the police officers obtaining the authorization. Grotsky J. relied on previous Ontario decisions to point out that if defence counsel was not entitled to explore such matters at the preliminary inquiry it would be difficult if not impossible in most cases to establish the necessary prima facie grounds for opening up of the sealed packet. He held that it followed that once such cross-examination had occurred at the preliminary inquiry that evidence may be used on the application for review of the authorization. [7] The Ontario Court of Appeal in the recent decision of R. v. Dawson (1998), 1998 CanLII 1010 (ON CA), 123 C.C.C. (3d) 385 ruled that preliminary inquiry judge does have the right to grant leave to allow the cross-examination of witnesses with respect to an authorization for electronic surveillance using the same criteria set out by Sopinka J. in R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) at p. 198. At p. 198 Sopinka J. stated: With respect to prolixity, am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds. When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted. The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised. While leave to cross-examine is not the general rule, it is justified in these circumstances in order to prevent an abuse of what is essentially ruling on the admissibility of evidence. Carthy J.A. speaking on behalf of the Court in R. v. Dawson, supra, concluded: My conclusion is that given the 1993 amendments to s. 187 of the Code, there is no reason that the granting of leave to cross-examine should be the preserve of the trial judge. Why should legitimate discovery be delayed? Why should provincial court judge not be permitted to apply very simple test to assure against prolixity, irrelevance, and well-known policy concerns? can see none and s. 540(1)(a) is strong directive to that end. This should not be considered as usurpation of the trial judge’s function. Cross-examination will disclose facts to the accused, but they will only become admissible at trial by leave of the trial judge. [8] Where leave is granted at the preliminary inquiry stage to conduct cross-examination of police witnesses with respect to an authorization as it was in this case, it is not obvious why such evidence should not be admissible on an application at trial to set aside the authorization, bearing in mind the Crown has the right to call evidence to expand, explain or add to the evidence elicited at the preliminary inquiry. It would appear to be an absolute waste of time and money to require duplication of such evidence on the Charter hearing. [9] It was ruled that the evidence given at the preliminary inquiry relevant to this application was admissible, subject to the right of the Crown to call amplification evidence. In this case the Crown did not do so. The Edited Transcript [10] In this matter, the Crown produced to defence counsel an edited copy of the affidavits used to obtain the electronic surveillance and video surveillance warrants as part of its disclosure. The editing included deletion of all dates on which the police obtained information and certain other material presumably deleted to protect the identity of the one principal source of information that there was “grow” operation at the Derksen residence located on an acreage in the Vanscoy district of Saskatchewan. Applicants’ counsel did not apply pursuant to s. 187(7) for better disclosure of the edited portions of the affidavit. [11] In R. v. Garofoli, supra, Sopinka J. in outlining the procedure to be followed noted at p. 351 that if the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed. However, if the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. No such application was made by the Crown in this instance. The affidavit in support of the authorizations in this matter are therefore to be considered solely on the basis of the edited copies. Authorization for Electronic Surveillance [12] The primary ground advanced by the applicants in their submissions to set aside the authorization for electronic surveillance is the police did not try any investigative procedures available to them before applying for the authorization, and as the matter was not urgent s. 186(1)(b) of the Criminal Code was not complied with. The Affidavit in Support [13] The affidavit in support of the authorization in this matter was not lengthy consisting of eight pages, only three and one half of which deal with factual information. Leaving aside information related to addresses, telephone numbers, vehicles, etc., the portions of the affidavit that identify the commission of an offence or the identity of persons who might be involved in such offence are set out hereafter. 2. THAT on 1996, was informed by Cst. Keith ATKINSON of the Saskatoon Police Service, who verily believed this to be true, that on the 1996, confidential and reliable source advised him that Les DERKSEN is slum landlord and lives on an acreage off the Cominco Mine road on the south side near the top of the hill. DERKSEN has paved race track on his property which he paid cash for and recently purchased new Harley Davidson motorcycle which he also paid cash for. DERKSEN’s only work is as slum landlord and he doesn’t make enough money to afford his lifestyle. 3. THAT on 1996, was advised by confidential and reliable source, who verily believe to be true, that: a) Les [Derksen] and Kerry FAST large marihuana grow site at Les’ residence. Les’ girlfriend, Debbie, is aware of the grow site. b) Les lives on an acreage off the Cominco Mine road about three miles West of Vanscoy, Saskatchewan. d) The residence is white house with large deck sitting on hill surrounded by race track, about three miles West of Vanscoy. e) The heat generated from the grow site is used to heat quonset on the property. f) When the grow site was originally built, Les bypass the electrical meter. THAT have known this source since 1994 and have been the source’s principal handler. This source has been used on numerous occasions and has been accurate and reliable. Throughout this affidavit, in every case where information comes from this informant, has personal knowledge. 8. THAT on 1996, conducted inquiries with Saskatchewan Power Corporation who advised that the account on the acreage located at the R.M. of Vanscoy #345, South-East 1/4, Section 3, Township 35, Range 8, West of the 3rd Meridian is registered to Leslie DERKSEN. The power consumption is read yearly and the yearly consumption rate fluctuated uncharacteristically from 20,093 kw/hr. in 1993; 22,548 kw/hr. in 1994; 40,082 kw/hr. in 1995; and 29,131 kw/hr. in 1996. 9. THAT on 1996, was advised by confidential and reliable source, who verily believe to be true, the same source previously referred to in Paragraph 3, that: a) Les DERKSEN marihuana grow operation at his residence near Vanscoy. The balance of this paragraph consisting of sub-clauses (b) to (h) have been edited out. 13. THAT on 1997, was advised by confidential and reliable source, who verily believe to be true, the same source previously referred to in Paragraph 3, that: a) Les DERKSEN has marihuana plants It will be noted the foregoing factual information with respect to an offence consists of the same source on two occasions in 1996 communicating information about marihuana grow site at the Les Derksen residence, and on one occasion in 1997 advising that Derksen has marihuana plants. Applicants’ counsel suggested that as result of the editing the information in the edited affidavit does not disclose current offence. In their submission, until the blanks were filled in the references could be to the past or to the future. It is not obvious why the Crown edited out the period to which the information relates. With respect to para. 3(a) and 9(a), supra, the edited portion consists of more than one word as evidence by the length of the deletion. However, on the basis of para. 3(a) which states that Les’ girlfriend, Debbie, is aware of the grow site and para. 13(a) that Les Derksen has marihuana plants, hold that the affidavit does disclose current offence. [14] The affidavit goes on in paras. 18 21 to explain why an authorization is being requested. These paragraphs state as follows: 18. THAT am of the opinion that Byron Leslie DERKSEN and Kerry Paul FAST represent an impregnable group of associates and any attempt to have an undercover operator penetrate this group would fail as Byron Leslie DERKSEN and Kerry Paul FAST will only conduct drug business with people they have known for some time. 19. THAT the sources mentioned throughout this affidavit have limited knowledge of Byron Leslie DERKSEN and Kerry Paul FAST’s criminal activity. None of these sources desire to introduce an undercover police officer to Byron Leslie DERKSEN and Kerry Paul FAST as they fear for their safety once their identity becomes known as police agent. 20. THAT surveillance in rural setting will produce limited evidence in relation to Byron Leslie DERKSEN and Kerry Paul FAST’s operations and will immediately tip Byron Leslie DERKSEN and Kerry Paul FAST off that they are under investigation and we would certainly not discover where they transport the marihuana to or from, where they process the marihuana in preparation for sale, how the marihuana is paid for and what money laundering techniques are utilized other than by the interception of private communications. 21. THAT the execution of any search warrant will produce limited evidence in relation to Byron Leslie DERKSEN and Kerry Paul FAST’s operations and will immediately tip Byron Leslie DERKSEN and Kerry Paul FAST off that they are under investigation and we would certainly not discover where they transport the marihuana to or from, where they process the marihuana in preparation for sale, how the marihuana is paid for and what money laundering techniques are utilized other than by the interception of private communications. The four foregoing paragraphs are all “boilerplate” as evidenced by the fact that the same four clauses were used by the same officer at about the same period of time in the case of R. v. Dosch (1998), 1998 CanLII 13840 (SK QB), 176 Sask. R. 21 (Sask. Q.B.). It is with respect to the foregoing “boilerplate” paragraphs that the applicants’ counsel cross-examined police officers at the preliminary inquiry. [15] Paragraph 22 of the affidavit then went on to request an authorization permitting the interception of private communications at the residences of each of the accused with view to obtaining evidence in respect of offences contrary to s. (trafficking or possession for the purpose of trafficking), (cultivation), 19.1 (proceeds of crime) and 19.2 (laundering proceeds) of the Narcotic Control Act and “any conspiracy, or attempt to commit, or being an accessory after the fact, or any counselling, procuring or inciting in relation to such offences.” [16] In the cross-examination of Constable Martens as reflected in the preliminary inquiry transcript at pp. 249-250 the following questions and answers appear with respect to the information provided by this source. The in the last well, since you’ve met that source, how many times would you have talked to the source up until January 30th of 1997? Oh, hundreds. Sometimes it was several times day, and then wouldn’t hear anything for weeks. Would you talk to him on the telephone or in person? Both. And when say him, just I, mean person, don’t not necessarily him or as opposed to her. The in relation to this information that this source provided, was it in relation to both Les Derksen and Kerry Begrand-Fast, the source that you got information from directly? Yes. And was it as, if can put it, as general as, as the information that you’d typically been getting? No. The did you consider the information specific enough that you could act upon it to go and do an arrest? The potential was there. That would have been an option, guess. [17] At p. 253 of the transcript Constable Martens confirmed there was not any investigation done other than confirming residences, telephone numbers, and preliminary work done with respect to any application for an authorization for electronic surveillance prior to applying for the authorization on January 30, 1997. At p. 253 of the transcript the following questions and answers appear: Okay, so yeah, that’s, that’s basically it. was wondering, you’ve got the information and basically you didn’t do lot of investigation besides the information that you obtained? And verifying it and confirming and The so, don’t want to belittle this, but you sort of lucked into some information and then as result, chose to then go get an electronic surveillance order to follow that up, is that basically what happened? In nutshell. [18] Constable Martens at p. 341 of the transcript indicated the information received from the source was not acted upon when first received because R.C.M.P. personnel were involved in number of matters and the resources available to install and carry out an electronic surveillance operation were otherwise occupied. At p. 341 of the transcript the following questions and answers appear: So, basically, the police were busy, it was anticipated that this authorization was put was going to take lot of time so it was thought, put it over? Just the resources, not the amount of time it was going to take wasn’t really an issue. Once we are committed to do it, once we had the resources to do it, however long it took. Well Once it started, you don’t stop. Obviously, sir, that the amount of time had an impact because you didn’t have the resources because everybody was busy in 1996. don’t know if follow. think know what you’re saying, but mean, had time to develop the file, but other resources weren’t available. So it got put on hold until such time as resources were available. [19] Constable Martens confirmed that neither of the targets had criminal records, nor were they personally known to him prior to receiving the information from the source. This is why he contacted the police officers referred to in para. of the affidavit. It will be noted this police officer source did not have information indicating Mr. Derksen was involved in the drug trade, although the information he supplied would make this an inference that was available. At pp. 309-310 of the transcript Constable Martens acknowledged: The one of the things that you discovered in this case was there was decided lack of material on police databases about any of these three targets. I’m not saying that there was absolutely nothing about them, but there was very little data about them, is that correct? They were relatively unknown, sure. [20] Constable Martens confirmed in the transcript that no attempt was made to conduct surveillance of the acreage in question. He stated it would have been practically difficult to conduct such surveillance directly on the residence because of the location, and the fact it was the middle of winter. However he agreed that as there was only one road off the main highway to this residence, it would not have been difficult to conduct surveillance of automobiles using this road to determine if any persons known to the drug trade were frequenting the road, or to follow any known vehicle at distance to see if the same entered the acreage area owned by Derksen. He confirmed this was in fact done after the electronic eavesdropping was in effect. At pp. 264-265 of the transcript the following questions and answers appear: Okay. So as far as assessing the connection of either of these two targets to that acreage, that could have been done fairly easily. That goal may have been accomplished quite easily, but there were other objectives. Okay. And as far as assessing just the level of vehicular traffic to the acreage, that could have been done fairly easily as well, how many cars are coming and going to the acreage, that could be done quite easily? Yeah, not knowing who or why, but you probably could have counted cars from distance, sure. And it would be fairly easy to have then monitored that traffic as it came back into Saskatoon as it passed through Vanscoy, to pick those cars up and, and check their plate numbers and perhaps even who was in them. If that was your objective, sure, that’s possible. Okay. And it’s often practice to see whether or not known drug dealers are associating with potential targets. Sure. So take it there wasn’t any attempt to see whether there was any association physically observed between these two targets and known drug dealers? Prior to January 30th? Prior to January 30th, 1997. No. The other objectives referred to by Constable Martens in question 214 are the objectives he referred to in paras. 20 and 21 of the affidavit submitted in support of the authorization. [21] With respect to the use of an undercover police officer or police agent, Constable Martens indicated he did not consider this possible. His evidence in this respect appears at pp. 265-266 of the transcript in the following questions and answers: Okay. The now, prior to January 30th of 1997, take it no attempt was made to approach either of these individuals, Mr. Begrand-Fast or Mr. Derksen as an undercover police officer to see whether or not they might be able to [be] induced to sell drugs to an undercover police officer? No, there was no effort. Okay. Likewise, no agent was employed or requested to go and approach them to see if they would sell drugs to him? knew of no one willing to act in that capacity, that could or would. I’m not necessarily talking about something from which charge would necessarily initially result, but I’m simply talking about someone who would do at least confirmatory initial attempt to purchase from either or [sic] those individuals, that wasn’t attempted? Again, knew nobody that was in that position of willing to become an agent. take it from that answer, is that wasn’t attempted? It would have been considered if knew of somebody, but didn’t know anybody that was willing to participate in that fashion. And you would agree with me that you’d have to do considerable amount of background checks to figure out who an appropriate agent might be? Well, it’s, it’s usually somebody that’s known to the targets that’s built up rapport and credibility and then comes to the police willing to make these purchases and tells us who they can buy from. Okay. So I, knew of no one that knew Les and Kerry in that fashion, think, to buy. [22] The Crown relies on recent decision of this court in R. v. Dosch, supra, in support of the authorization, and in support of its position that it is not necessary that other means of investigation be resorted to prior to applying for an authorization. In the Dosch case Dovell J. of this court concluded there was investigative necessity for the issuance of an authorization based on the four boilerplate paragraphs referred to in para. [14], supra, combined with the goal of the investigation which was to try and learn the supplier of the drugs that Dosch was dealing. Dovell J. noted at para. 13: .The focus of the investigation was not on the people who were buying the drugs from Mr. Dosch but was on who Mr. Dosch’s supplier was. The Drug Unit had an idea of where he was getting the drugs from in British Columbia but they were hoping to gather more evidence regarding his source. [23] The information that had been presented in the affidavit in support of the authorization in the Dosch case is summarized by Dovell J. at para. 12 of her fiat: Some of the information received from informants who had all proven reliable in the past included the following: (1) Leland Dosch was dealing in large amounts of marihuana and cocaine in the summer of 1996. (2) Leland Dosch was travelling to British Columbia to purchase drugs and was bringing it back to Saskatchewan to sell. (3) Leland Dosch had sold one source some cocaine in 1996 and Leland Dosch usually had two ounces of cocaine sitting on his kitchen table, as well as up to two pounds of marihuana on hand. (4) Leland Dosch was also cultivating marihuana. (5) Leland Dosch was surveillance conscious and believed that his phone might be tapped. (6) People were coming and going from the Dosch farm to purchase cocaine and marihuana. The foregoing case is distinguishable from the present case by the fact the information in the affidavit in support disclosed extensive dealing in both marihuana and cocaine by Dosch and addressed the recognized difficulty of normal police investigative activity ever identifying the source of supply, particularly with surveillance conscious target. [24] The fact pattern in this matter was the reverse of that in Dosch. The police knew, if the information received proved accurate, that the applicant’s were the suppliers of marihuana and the authorization was requested to determine anyone else with whom they might be dealing. Constable Martens as noted above at para. [17] admitted that once he received the information of marihuana grow operation, applying for an authorization became the investigative tool of choice. No investigation was conducted by Constable Martens other than investigation to verify some of the information he had received from the informant. [25] The information in this case is limited to the existence of marihuana grow operation on rural acreage owned by the applicant Derksen with which the applicant Begrand-Fast was supposed to be involved. The affidavit in support admits that nothing is known about the two individuals previous involvement, if any, in the drug trade, and Constable Martens acknowledged that neither person had criminal record. As a result, the boilerplate paragraphs offered on why other investigative procedures were unlikely to succeed had or have no factual basis. These paragraphs are simply assumptions in the form of an opinion that might be justified if factual information disclosed that these persons were experienced drug dealers, or were part of an organization that carried on drug dealing, but there is total absence of any such information. As result, there are no facts to support the assertion or supporting an inference that the two individuals form “an impregnable group”, or supporting the statement that they will not deal with anyone they do not know, or on why the source might fear for his or her safety if his or her identity became known, or supporting the statement that the two individuals targeted were surveillance conscious. [26] The case law to this point supports the position that the standard to be met under s. 186(1)(b) of the Criminal Code is not “the last resort” but one of no real practical alternative. (Vide: R. v. Araujo (1998), 1998 CanLII 6287 (BC CA), 127 C.C.C. (3d) 315 at p. 325 (B.C.C.A.) on appeal to S.C.C. decision reserved April 12, 2000). There is simply no information contained in the affidavit in support of the authorization or in the amplification evidence of Constable Martens which could support an objective standard that other investigative procedures were unlikely to succeed. To the extent these boilerplate paragraphs conveyed the impression there was factual information justifying the conclusions on why other investigative procedures were unlikely to succeed, that impression was false and misleading. [27] am satisfied that if the issuing judge had been aware of the amplification evidence of Constable Martens, the judge would have concluded that the statutory conditions contained in s. 186(1)(b) had not been established. In the end result, the applicant’s have satisfied the burden of proof on the balance of probabilities that the pre-conditions for the granting of an authorization set out in s. 186(1)(b) were not met. As a result the authorization dated January 30, 1997 is set aside. [28] The interceptions which occurred pursuant to the authorization of January 30, 1997 constituted a search and seizure within the meaning of s. 8 of the Charter, and as the search was not authorized by law the search was unreasonable and in breach of that section (Vide: R. v. Garofoli, supra, per Sopinka J. at p. 187). Whether the evidence of the interception should be excluded from evidence pursuant to s. 24(2) will be dealt with later herein. Authorization for Video Surveillance [29] The affidavit in support of warrant for video surveillance pursuant to s. 487.01(1) of the Criminal Code relied exclusively on communications intercepted as result of the issuance of the electronic surveillance warrant. Intercepted information indicated the applicant Derksen would be away on holidays from March 29 to April 5th, 1997, and that it was likely the applicant Begrand-Fast would check on the premises while he was away. The relevant paragraph in the affidavit states as follows: 8. THE intercepted calls under the current Authorization has revealed little direct evidence to prosecute Kerry FAST. Les DERKSEN plans for holiday between the 29th day of March A.D., 1997 and the 5th day of April A.D., 1997 will provide the opportunity to gather evidence by means of television camera or other similar electronic device against Kerry FAST as he cares for the marihuana cultivation in DERKSEN’s absence. As result of the warrant which issued police officers were successful in installing video camera equipment in the grow area which was located in bunker adjacent to the basement of the house and which was accessible through door in the basement. Mr. Begrand-Fast was photographed by the camera in the grow room during the period of time Mr. Derksen was away from the residence. [30] Applicants’ counsel submit that as the information used to obtain the video surveillance warrant consists entirely of excerpts from the intercepted conversations obtained pursuant to the electronic surveillance authorization, the video surveillance warrant should also be set aside, on the basis there is no other information submitted in the affidavit in support of the warrant that could provide reasonable and probable grounds for its issuance. Before addressing this position, it is necessary to address the Crown’s position that the applicant Begrand-Fast lacked privacy interest in the Derksen residence and therefore his right pursuant to s. of the Charter to be secure against unreasonable search or seizure was not infringed. [31] The Crown concedes that Mr. Derksen had privacy interest in his residence and the attached bunker but submits on the basis of the law cited in R. v. Edwards (1996), 1996 CanLII 255 (SCC), 45 C.R. (4th) 307 (S.C.C.) and in R. v. Belnavis (1998), 1997 CanLII 320 (SCC), 10 C.R. (5th) 65 (S.C.C.) Mr. Begrand-Fast did not. R. v. Edwards, supra, dealt with warrantless search of premises with which the accused had connection, and R. v. Belnavis dealt with warrantless search of vehicle in which the accused was passenger. In each case the Supreme Court held the accused did not have privacy interest. At pp. 319-320 of the Edwards decision Cory J. noted that claim for relief under s. 24(2) can only be advanced by person whose Charter rights have been infringed, and that all Charter rights, including s. 8, is personal right which protects people and not places. Cory J. in this decision concluded that the right to challenge search depended upon the accused establishing that he or she had personal right to privacy with respect to the area searched. [32] The video surveillance warrant issued in this case was not directed at the “grow” room located in the Derksen residence in general with the object of observing who might show up as was the object in the case of R. v. Wong (1991), 1990 CanLII 56 (SCC), C.R. (4th) (S.C.C.). It was specifically directed at the applicant, Begrand-Fast as indicated in para. of the affidavit quoted above. In other words, the “grow” room place was target, but only incidentally to obtaining video evidence of Begrand-Fast in that place during the period of time the owner would be away. [33] In the Edwards decision, supra, at p. 320 Cory J. noted in part as follows: 5. reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62. 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of subjective expectation of privacy; and vii) the objective reasonableness of the expectation. [34] Before applying the foregoing criteria to the facts in this case it is worth noting that the criteria referred to above are to be applied without regard to the fact illegal activity was allegedly taking place on the premises. This is made clear by La Forest J. speaking on behalf of the majority in R. v. Wong, supra, at p. 12 where he stated: By way of expansion on my earlier references to Sanelli, would note that that decision places considerable emphasis on the fact that the answer to the question whether persons who were the object of an electronic search had reasonable expectation of privacy cannot be made to depend on whether or not those persons were engaged in illegal activities; see [[1990] S.C.R.] pp. 51-52. If reliance were to be placed on such ex post facto reasoning, and the courts to conclude that persons who were the subject of an electronic search could not have had reasonable expectation of privacy because the search revealed that they were in fact performing criminal act, the result would inevitably be to adopt system of subsequent validation for searches. [35] Applying the criteria set out by Cory J. to this case the applicant Begrand-Fast was in de facto possession and control of the Derksen premises while the applicant Derksen was away. He was the only person who had the right to admit or exclude persons from the premises during this period. He was clearly present at the time the search was in progress as evidenced by the fact his image was captured on film. With respect to the existence of subjective expectation of privacy he was in the same position as any person who agrees to look after neighbour’s house while the neighbour is away. In this capacity it is not obvious why the person who is in the position of caretaker should not be able to expect the same level of privacy as the owner or permanent occupant of the premises for the simple reason the premises are private, in the same way hotel room is private (Vide: R. v. Wong, supra, at p. 15). This is so whether the person stays in the private premises over which he or she has temporary control for five minutes or five hours. The privacy of the premises also makes the expectation of privacy objectively reasonable. The totality of the foregoing circumstances establishes that the applicant Begrand-Fast did have reasonable expectation of privacy in the Derksen residence during the period of time covered by the surveillance warrant, and is therefore entitled to exercise his s. Charter right to challenge the validity of the warrant. [36] With respect to the use that might be made of the unlawfully intercepted conversations that form the basis of the information to obtain the video surveillance warrant the case of R. v. Evans (1996), 1996 CanLII 248 (SCC), 104 C.C.C. (3d) 23 (S.C.C.) is determinative. At p. 35 Sopinka J. noted: .As this court pointed out in R. v. Kokesch (1990), 1990 CanLII 55 (SCC), 61 C.C.C. (3d) 207, [1990] S.C.R. 3, C.R. (4th) 62, warrants based solely on information gleaned in violation of the Charter are invalid. [Emphasis in original] Such is the case with respect to the video surveillance warrant in this case. No information was offered in support of the warrant other than the tainted evidence of the intercepted conversations obtained in breach of the applicant’s s. Charter right. The video surveillance warrant therefore must be set aside. Application of Section 24(2) With Respect to the Electronic Authorization and the Video Warrant Fairness of Trial [37] number of the Saskatchewan cases quoted by defence counsel pre-date and have been pre-empted by R. v. Stillman (1997), 1997 CanLII 384 (SCC), C.R. (5th) (S.C.C.) and the cases which have followed, at least insofar as the distinction between conscriptive and non-conscriptive evidence is concerned. Conscriptive evidence is now limited to statements deemed compelled because the accused’s Charter rights were infringed in the process of obtaining the statement and to the use of the body or the production of bodily samples (Vide: R. v. Stillman, supra, at p. 36). Unlawfully intercepted communications or video images are not conscripted evidence and do not affect the fairness of the trial (Vide: R. v. Wijesinha (1996), 1995 CanLII 67 (SCC), 42 C.R. (4th) (S.C.C.) at p. 18). The Alberta Court of Appeal in R. v. Pope (1999), 1998 ABCA 267 (CanLII), 129 C.C.C. (3d) 59 with respect to third party interceptions noted at p. 62: Wijesinha was case of participant surveillance. The case at bar is one of third party surveillance. In our view, this distinction has no effect on the character of the evidence or the impact of its admission on the fairness of the trial. In both situations, the accused’s statements were made independently and voluntarily. They were not compelled. The fact that in both cases the words of the accused were captured by recording device does not change their intrinsic character from non-conscriptive to conscriptive. The court then went on to endorse the Ontario Court of Appeal decision in R. v. Lauda (1998), 1998 CanLII 2776 (ON CA), 122 C.C.C. (3d) 74 which dealt with the visual surveillance of the accused tending marihuana plants made in violation of s. of the Charter wherein Borins J. noted at p. 87: The evidence which the trial judge excluded was non-conscriptive. The respondent was not conscripted, or compelled, to participate in the creation or discovery of the evidence. He was cultivating the marijuana, and came to the farm to tend to it on the day the police were conducting visual surveillance, not as result of any form of police coercion, but of his own free will. He would have attended at the field to tend to the marijuana regardless of any police investigation. Therefore, the admission of the evidence would not have rendered the trial unfair. The foregoing rationale with respect to visual surveillance applies equally to surreptitious video surveillance. Seriousness of the Breach of s. of the Charter [38] The breach of the applicant’s s. Charter rights with respect to the obtaining of the electronic authorization was serious. In many of the seminal cases with respect to s. of the Charter the police were found to have acted in good faith because they had followed accepted practice up until that point in time, or when they had acted with warrant that was subsequently declared to be invalid they had no prior notice that this would happen. Such is not the case in this matter. At the time the electronic surveillance authorization was obtained in this matter on January 30, 1997 there was considerable body of case law interpreting s. 186(1)(b) of the Criminal Code (e.g., in Saskatchewan R. v. Stacey (L.J.) (1996), 1996 CanLII 7084 (SK QB), 140 Sask. R. 60 (Q.B.)). The decision to rely on “boilerplate” statements that other investigative procedures were unlikely to succeed, which statements when explored in cross-examination turned out to lack factual basis cannot be described as inadvertent, nor minor or technical breach of the requirements. The decision to proceed in this matter was intentional in circumstances where there was no urgency to the investigation, and no other investigation techniques had been resorted to. The authorization could not have been obtained without the breach of the s. 186(1)(b) Criminal Code provisions. [39] With respect to the video surveillance warrant, the information submitted to establish reasonable and probable grounds was exclusively information obtained from the electronic surveillance authorization. A good faith argument is not available because the information submitted in support of the warrant was tainted by the conduct utilized to obtain the electronic surveillance authorization. The evidence obtained is equally a product of a serious infringement of the applicant’s s. 8 Charter rights because once the tainted evidence was excised from the affidavit in support there was no evidence supporting the issuance of the warrant. Administration of Justice [40] As noted by Lamer J. in R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) (S.C.C.) at p. 20, the ultimate question under s. 24(2) of the Charter is whether the systems repute will be better served by the admission or exclusion of the evidence. In R. v. Stillman, supra, Cory J. at p. 50 emphasized the words of Iacobucci J. in R. v. Burlingham, (1995), 1995 CanLII 88 (SCC), 38 C.R. (4th) 265 where at p. 290 he stated: .It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2). [41] Not every search leads to the same degree of intrusion of privacy. While the nature of the privacy interest intruded is relevant in assessing the seriousness of the breach of s. 8 of the Charter, it is also relevant in addressing whether the admission of the evidence obtained in the trial proceedings would bring the administration of justice into disrepute. The intrusiveness of electronic and video surveillance is recognized in the judicial authorization protocols outlined in Part VI of the Criminal Code which applies to both, and includes the requirement that the provisions of s. 186(1)(b) be satisfied. The rationale for these special provisions it is submitted was articulated by La Forest J. in R. v. Wong, supra, at p. 11 where he stated: the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities. Reference may also be made to the remarks of Cory J. in R. v. Wise (1992), 1992 CanLII 125 (SCC), 70 C.C.C. (3d) 193 at p. 219 with respect to the electronic beeper attached to the accused’s vehicle: .It must be remembered as well that the device was attached to the appellant’s vehicle, not to the appellant. How very different device such as this is, in its operation and in its effect on the individual, from hidden video camera or an electronic monitor that surreptitiously intercepts private communications. [42] Thus in this case, the privacy interest unlawfully intruded is one in which the expectation of privacy is comparatively high. As noted above the nature of the constitutional breach was major, not minimal. Based on Constable Martens admission that other avenues of investigation were not attempted in favour of applying for an electronic authorization the breach was not one that was made in good faith. The means of obtaining the authorization was misleading because the reasons offered for not conducting a further investigation lacked a factual basis. [43] On the basis of the foregoing it is concluded that the integrity of the justice system would be compromised as would the goal of promoting decent investigation techniques if the evidence obtained from the unlawful interceptions and video surveillance was ruled admissible. I conclude it is more likely than not the administration of justice would be brought into disrepute. The nature of the charges and the possibility that the prosecution’s case against Mr. Begrand-Fast may be fatally weakened by the exclusion of the evidence is taken into account. [44] The evidence obtained pursuant to the electronic surveillance authorization and the video surveillance warrant is ruled inadmissible at trial. The Search Warrant [45] The search warrant for the Derksen residence is dated April 1, 1997 and authorized search of his premises to take place between 7:00 a.m. April 2, 1997 and midnight on April 4, 1997 during which period of time he was away. The search was conducted on April 2, 1997. [46] Counsel for the applicant submits that much of the information used to establish reasonable and probable grounds for the issuance of the warrants consisted of intercepted communications pursuant to an authorization that has since been set aside, and for this reason the search warrant should also be set aside and the evidence consisting mainly of the marihuana plants seized at the Derksen residence should be excluded from evidence at trial. [47] Applicants’ counsel also takes the position that the search of the Derksen residence was conducted in an unreasonable manner because two television news crews were allowed on the premises during the time of the search. Validity of the Search Warrant for the Derksen Residence [48] In R. v. Evans, supra, Sopinka J. held that warrants based solely on tainted information are invalid, but went on to state at p. 35: .However, where the warrant was issued only partially on the strength of tainted evidence, and partially on evidence that was properly obtained, the court must “consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant”: R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 at p. 195. [49] The information to obtain the search warrant for the Derksen residence contains information that is not derived from the unauthorized intercepts, and consists largely of the same information used to obtain the electronic authorization previously set out herein. The Information was also in an edited form and the relevant paragraphs alleging criminal offence are hereinafter set out: 2. THAT was advised by confidential and reliable source, who verily believe to be true, that: Les lives on an acreage off the Cominco Mine road about three miles West of Vanscoy, Saskatchewan. Les has been growing marihuana. Apparently there was break and enter at Les’ residence and small fire started. The residence is white house with large deck sitting on hill surrounded by race track, about three miles West of Vanscoy. Les had contacts in where he possibly distributes the marihuana. One associate is a, who has also been in marihuana cultivation for years. Les is described as 5'10", 180 pounds, brown hair, ponytail, stocky build, glasses, former Radio Cab driver, girlfriend Debbie, associate of Kerry FAST. Saskatchewan licence DYM-966 was observed in the yard. THAT have known this source since 1994 and have been the source’s principal handler. This source has been used on numerous occasions and has been accurate and reliable on every occasion where the information was able to be confirmed. Throughout this affidavit, in every case where information comes from this informant, he/she has personal knowledge. 8. THAT, was advised by confidential and reliable source, who verily believe to be true that: Les DERKSEN is [sic] marihuana grow operation at his residence near Vanscoy. DERKSEN still has one pound of marihuana out on the streets. 11. THAT was advised by confidential and reliable source, who verily believe to be true, that: a) Les DERKSEN has marihuana plants. The information for the search warrant was edited electronically and therefore it is not possible to determine where information was deleted by the Crown. infer the confidential source referred to in paras. 2, 8, and 10 is the same source based on the fact the history of the reliability of the source is only commented on in para. and not thereafter, and the fact that there was only one source who was quoted in the Information for the electronic authorization. [50] In R. v. Wiley (1994), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161, Sopinka J. on behalf of the court reviewed the requirements for the establishment of reasonable and probable grounds for search warrant where the information identifying an offence emanates from an informant. He noted at p. 170: In R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193, [1989] S.C.R. 1140, 73 C.R. (3d) 129, this court determined that the reliability of the tip of an informant depends on an assessment of the totality of the circumstances and specified three areas of concern (at p. 215): First, was the information predicting the commission of criminal offence compelling? Secondly, where that information was based on “tip” originating from source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? review of the Information in support of the search warrant indicates that while two of the foregoing requirements are arguably met as evidenced by the credibility endorsement provided by Constable Martens with respect to the source, and the confirmatory investigation done by him to ascertain the accuracy of some of the information provided, the third dealing with the compellability of the information is not. [51] Martin J.A. in R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 articulated what was necessary to have an informer’s information qualify as reasonable and probable grounds. His statement in this respect was adopted by Bayda C.J.S. in R. v. Pastro (1988), 1988 CanLII 214 (SK CA), 66 Sask. R. 241 at p. 246, and appears to have been endorsed on appeal to the Supreme Court of Canada (1990), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.). Martin J.A. stated at pp. 218-219: Consequently, mere statement by the informant that he or she was told by reliable informer that certain person is carrying on criminal activity or that drugs would be found at certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. am of the view that such mere conclusory statement made by an informer to police officer would not constitute reasonable grounds for conducting warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify warrantless search or an arrest without warrant are whether the informer’s “tip” contains sufficient detail to ensure it is based on more than mere rumour or gossip. [52] The information supplied by the informer in this case, at least in the edited Information on the basis of which the case was argued, does not provide any information that would establish he or she did not learn the information through rumour or gossip. All that is presented are conclusory statements as noted from the Information quoted above. It is possible the source viewed the Derksen residence from the exterior based on his description of it and his observance of car belonging to Debbie in the yard, but this does not provide detail with respect to the offences alleged. [53] As the affidavit provides no indication of the source of the informer’s knowledge, there was no ability on the part of the issuing justice to assess the reliability or the credibility of the information. The fact the source is credible does not mean the information provided is reliable. When the source does not have first hand knowledge, it is necessary to identify the source of the information and provide information on the credibility of that source. (Vide: R. v. Pastro, supra; R. v. Pippin (S.D.), (1994), 1994 CanLII 4659 (SK CA), 116 Sask. R. 275 (Sask. C.A.)). [54] The absence of compellable detail of the alleged offence and the absence of the source of the informer’s knowledge means the information supplied for the Derksen search warrant did not provide a basis for the issuing justice of the peace to conclude reasonable and probable grounds existed for the issuance of the warrant, and the warrant must be set aside. Section 24(2) of the Charter [55] In R. v. Pastro, supra, and R. v. Pippin, supra, the majority in each case excluded the evidence of drugs discovered in the course of the search. However, in each case the majority equated the unlawful search with compelled testimony and concluded admissibility of the evidence would render the trial unfair (Vide: R. v. Pastro, supra, at p. 265 and R. v. Pippin, supra, at p. 287). The minority in each case would have admitted the evidence. As noted above, since R. v. Stillman, supra, it is only conscripted evidence which engages the “fairness of trial” issue, and therefore these cases are not conclusive on the issue of admissibility of evidence obtained as result of search warrant being declared invalid. [56] review of the case law since R. v. Stillman, supra, suggests that where the crime charged is serious, and the real evidence obtained as result of the unlawful search is crucial to the prosecution’s case, that only the most egregiously serious breaches of the Charter will result in exclusion of the evidence. (Vide: R. v. Puskas (1998), 1997 CanLII 1159 (ON CA), 120 C.C.C. (3d) 548 (Ont. C.A.); R. v. Lauda (1998), 1998 CanLII 2776 (ON CA), 122 C.C.C. (3d) 74 (Ont. C.A.)). [57] I do not consider the seriousness of the breach in this case to be at the high end of the scale. There was an attempt to comply with the requirements of the Criminal Code, and as noted above two of the three requirements were met. Whether there was additional information available to the issuing justice in the unedited information submitted to him or her is unknown to me. am not in position to conclude that the police could not have supplied the required information in form that would satisfy the Criminal Code requirements. To the extent tainted information was offered in support of the warrant, the police officer was obliged to include this information in the interests of making full disclosure. While good faith was not found with respect to the information offered in support of the electronic authorization, there is nothing in the information presented with respect to the search warrant that leads to a conclusion of bad faith in applying for the search warrant. As a result, on balance I conclude the administration of justice would not be brought into disrepute with the admissibility of this evidence. However, before making such ruling it is necessary to next consider the reasonableness of the search. Reasonableness of the Search [58] Counsel for the applicant, Derksen submits the search of the Derksen residence was unreasonable because two television camera crews were on his premises for up to an hour during the course of the search. [59] At the preliminary inquiry Corporal Wilde of the R.C.M.P. who is the Community Services/Media Relations Officer for the Saskatoon area testified as to why this had occurred. He indicated he had received request earlier from two television stations in Saskatoon that television camera crews be allowed to accompany drug members on drug search. He indicated that he thought it was good idea from the community relations perspective and went on to say at p. 571 of the transcript: The rationale that gave to the drug section was that the philosophy of policing in the 1990s is community based, deal working with the community to help deter and prevent crime. felt by taking the media along it would give the opportunity for them to show the public what grow operation looks like as indications are that grow operations are becoming more prevalent in this province. So having said that, taking the media along, we could through video or through television show the public what grow operations look like, and also requesting or encouraging them to report anything of suspicious nature in their community. By taking them along, felt it also could act as deterrent for other would-be persons to show that police are out there working and detecting these grow operations. [60] Corporal Wilde indicated he had attended media workshop in Vancouver in April 1996 attended by officers from across Canada, and at this conference an officer from Vancouver indicated that news media had been brought along on drug search in Vancouver, and that the Crown had been successful in defending the practice in one case in which it was challenged. (It is possible this was the trial decision subsequently overruled by the British Columbia Court of Appeal in R. v. West (1998), 1997 CanLII 3792 (BC CA), 12 C.R. (5th) 106 (B.C.C.A.)). Corporal Wilde indicated that he obtained copy of the information used to obtain the search warrant in the Vancouver case and noted that it included information on the intention to have the news media accompany the police officers on the search. He stated he gave this information to the drug section in Saskatoon. [61] Corporal Wilde indicated that he had advised the two television media persons that he required the names of persons who would accompany police officers on drug search, and told them that such persons would have to be available on short notice when an appropriate search which the media persons could attend was about to be conducted. In fact the names of the media persons were included in the information to obtain the search warrant, but did not appear in the search warrant. Defence counsel suggested this meant the justice who issued the search warrant declined to allow the media to attend and that they had attended anyway. In the absence of any evidence of what took place before the issuing justice am not prepared to draw this conclusion. The Criminal Code makes no provision to add the names of civilians to search warrant. Section 487(1) states search warrant should authorize peace officers or public officers only. [62] The British Columbia Court of Appeal decision in R. v. West makes it clear that having civilians accompany police officers on the search of private premises has no statutory basis and is unreasonable. The reasoning applies equally to this case and the search conducted of the Derksen residence was therefore conducted in an unreasonable manner contrary to s. of the Charter. However, with respect to the inclusion or exclusion of the evidence obtained in the search including approximately 365 marihuana plants Collins analysis favours inclusion. [63] There are many factual differences between the West case and this one, most of which flow out of the fact the accused, Derksen, was not present during the search of his premises, and the fact the media personnel were supervised and restricted as to what they were allowed to film. Part of the main floor area of the house was videotaped as the news camera men passed through, but most of the videotaping was restricted to the marihuana plants and the grow room. As noted earlier, the grow room was in bunker attached to the basement, which bunker was single purpose facility divorced from the remainder of the residence in the same way that garage or storage shed can be. The television cameras were not allowed upstairs into the bedroom area of the house. Corporal Wilde had set ground rules that the residence could not be identified in any broadcast and it wasn’t. What was broadcast was presented generically as search of marihuana cultivation operation. [64] The West fact situation was more serious breach of the Charter, as it was far more unreasonable exercise of discretion on the part of the police officers in that case who allowed the news media to film whatever they wished, including the arrest of the accused. An aggravating factor in the West case was that police allowed the news media to return to the accused’s apartment and film after they knew the accused had indicated he did not wish news media persons to be present. review of the case indicates the seriousness of the breach was the overwhelming consideration for excluding the evidence. [65] In this case the police proceeded in good faith based on the case they had obtained from British Columbia and the fact that Corporal Wilde had attended media conference where apparently no one thought there was anything wrong with inviting the media along in this way. The police were attentive to privacy issues in supervising and restricting the television cameras that were on the premises. [66] Defence counsel submitted that the combination of an invalid warrant and an unreasonable search should be viewed as most serious in view of the fact there were two separate breaches of Mr. Derksen’s s. Charter rights with respect to the same search. Normally there would be some force to this argument, but am influenced by the fact that the drug section was not the initiator of inviting the media along on search, and it was coincidence that Corporal Wilde did so on search where the warrant was subsequently held to be invalid. In other words the two events did not amount to course of conduct. This coincidence does not trigger concern for the propriety of ongoing police investigations. [67] In the end result, the seriousness of the charge combined with the real evidence of the marihuana plants obtained, which is crucial to any successful prosecution of Mr. Derksen, outweighs the breach of his s. 8 Charter rights to be secure from unreasonable search and seizure. I conclude it is more likely than not that exclusion of the evidence obtained from the search of his premises would bring the administration of justice into disrepute. [68] The evidence obtained as result of the search of Mr. Derksen’s residence on April 2, 1997 is admissible at trial. [69] Defence counsel also applied for stay of proceedings based on alleged police misconduct outlined in the foregoing, as well as an allegation that the electronic authorization was not complied with in its monitoring provisions, and an allegation that police officers improperly seized certain personal items of Mr. Derksen at the time of the search and refused to return them despite defence counsel’s view there was no evidence to support the proceeds of crime justification. With respect to the lack of monitoring allegation, the intercepted conversations have already been excluded from evidence and there is no need to deal with this issue. With respect to the improper seizure and retention of personal property of the accused, this is a collateral matter and does not affect the fairness of the trial. The application for a stay of proceedings is dismissed. [70] Order accordingly.
FIAT. The applicants, charged separately, plead not guilty to cultivation and possession of marijuana and sought to have the evidence obtained pursuant to the authorizations for electronic surveillance and search warrant be excluded from trial and requested a stay of proceedings on all charges.  They argued the search warrant, which resulted in the seizure of 365 marijuana plants, should be set aside on the additional grounds police officers allowed two news media camera crews onto the premises to film during the course of the search thereby rendering the search unreasonable pursuant to s.8 of the Charter. The primary ground was that the police did not try any available investigative procedures before applying for a surveillance authorization. As the matter was not urgent s.186(1)(b) of the Criminal Code was not complied with. The Crown objected to the defences' reliance on portions of the preliminary inquiry. The Crown produced an edited copy of the affidavits in support of the electronic and video surveillance warrants wherein all dates and other information were deleted to protect the identity of a principal source of information. HELD: The application for a stay of proceedings was dismissed. The evidence obtained pursuant to the electronic surveillance and the video surveillance warrant were ruled inadmissible at trial. The search warrant respecting the residence was set aside. The seriousness of the charge combined with the real evidence of the 365 marijuana plants outweighed the breach of the Charter s.8 right to be secure from unreasonable search and seizure. The exclusion of the evidence obtained from the search of the premises would bring the administration of justice into disrepute. 1)The portions of the preliminary inquiry transcript were allowed by way of affidavit subject to the right of the Crown to call amplification evidence.  2)The affidavit in support of the authorizations were considered solely on the basis of the edited copies. 3)The affidavit did disclose a current offence. It was not obvious why the Crown edited out the dates. 4)The 1997 authorization was set aside. The search was unreasonable and in breach of s.8 of the Charter. The s.186(1)(b) pre-conditions for granting an authorization were not met. There was no information contained in the affidavit or the amplification evidence which could support an objective standard that other investigative procedures were unlikely to succeed. The impression given the issuing judge was false and misleading. The fact pattern was the reverse of that in Dosch. The information was limited to the existence of a marijuana grow operation on a rural acreage owned by Derksen with whom Begrand-Fast was alleged to be involved. Neither had a criminal record. The boilerplate paragraphs as to why other investigative procedures were unlikely to succeed had no factual basis.  5)The information submitted to establish reasonable and probable grounds was exclusively information obtained from the electronic surveillance authorization. A good faith argument was not available because the information submitted in support of the warrant was tainted by the conduct utilized to obtain the authorization. The evidence obtained was equally a product of a serious infringement of the applicant's s.8 Charter rights because once the tainted evidence was excised for the affidavit in support there was no evidence supporting the issuance of the warrant. The privacy interest was comparatively high. The nature of the constitutional breach was major. The means of obtaining the authorization was misleading because the reasons offered for not conducting a further investigation lacked a factual basis. 6)The residence search warrant was set aside. The affidavit provided no indication of the source of the informer's knowledge. The issuing justice was therefore unable to assess the reliability or the credibility of the information. The fact the source is credible does not mean the information provided is reliable. 7)The seriousness of the breach was not at the high end of the scale. There was an attempt to comply with the Criminal Code and two of the three requirements were met. While good faith was not found with respect to the information offered in support of the electronic authorization, there was nothing in the information presented with respect to the search warrant that lead to a conclusion of bad faith. On balance the administration of justice would not be brought into disrepute with the admissibility of this evidence.  8)The Criminal Code makes no provision to add the names of civilians to a search warrant. The reasoning in R. v. West applied and the search of the Derksen residence was conducted in an unreasonable manner contrary to s.8 of the Charter. A Collins analysis favoured the inclusion of the evidence including the plants. The police were attentive to privacy issues in supervising and restricting the television cameras. The officer set grounds rules that the residence could not be identified in any broadcast. The drug section was not the initiator of inviting the media along. It was coincidence that the corporal did so on a search where the warrant was subsequently held to be invalid. The two events did not amount to a course of conduct. 9)The improper seizure and retention of personal property of the accused was a collateral matter and did not affect the fairness of the trial.