Citation:R v. Nickason and Lothrop
Date:20040518

2004 BCPC 0316 File No:21458
Registry: Quesnel

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA v.WESLEY GEORGE NICKASON
and CHERYL LOTHROP

RULING ON VOIR DIRE OF THE HONOURABLE JUDGE E. C. BLAKE
Counsel for the Crown:
Michael Gray, Esq.
Counsel for Wesley George Nickason:
Wesley G. Nickason
Counsel for Cheryl Lothrop:
S. Hutchison, Esq.
Place of Hearing:
Quesnel, B.C.
Date of Hearing:
March 25, 2004
Date of Judgment:
May 18, 2004
INTRODUCTION:

[1] The Defendants are on trial before me charged with four counts of causing or permitting animals to be in distress, contrary to Section 24 (1) of the Prevention of Cruelty to Animals Act ("the Act"). The animals are horses.

[2] During the course of the trial a voir dire was held to determine the admissibility of evidence obtained by the Crown as a result of a search conducted upon the Defendants' premises at Nazko, British Columbia on August 24, 2002. It appears that the search produced the discovery of three horses in a field. The alleged physical condition of those horses led to three of the four charges against the Defendants.

GENERAL LAW APPLICABLE:

[3] The Defendants' challenge to the search is based upon Section 8 of the Charter, which reads:

8. Everyone has the right to be secure against unreasonable search or seizure.

[4] The governing principles for assessing the reasonableness of any search or seizure are set out in R v. Collins reflex, (1987), 33 CCC (3d) 1 (SCC), as follows:

A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which it was carried out was reasonable.

APPLICATION OF LAW TO EVIDENCE:

[5] In the present case, the search was conducted pursuant to a search warrant purportedly issued under Section 13 of the Act. The Defendants raise no question about the reasonableness of the legislation itself. Thus, one of the three branches of the Collins test must be considered satisfied. The other two branches of the test are in question.

[6] The Defendants submit that the form of warrant issued in this case was fatally flawed, such that it cannot be said to have been authorized by the Statute. The Defendants further submit that in any case the search was executed in an unreasonable fashion. I will deal with each of these arguments in turn.

(i) THE ALLEGEDLY DEFECTIVE WARRANT:

[7] The warrant in this case refers to the place to be searched in the following manner:

9990 Nazko Road, Rural Route, British Columbia

[8] The Defendants maintain that such a description, containing no reference to a municipality, county or district, is fatally defective. The Crown agrees that the description of the location is less than perfect, but says that the warrant's validity is saved by the fact that the investigator who obtained the warrant is the same person who had led the investigation all along and was the same person who ultimately supervised the search. She was under no misapprehension whatsoever about the identification of the place to be searched. The Crown also notes that the premises were more properly and fully described in the Information to Obtain the warrant, which the Defendants have not challenged.

[9] The Defendants' argument must prevail. As was noted in R v. Parent reflex, (1989), 47 CCC (3d) 385 (YTCA), the sufficiency of the description of the place to be searched is to be assessed having regard to the face of the warrant, independent of the contents of the Information to Obtain and independent of the manner in which the search was eventually executed.

[10] The wisdom of the principle set forth in Parent is apparent when applied to the facts of this very case. The warrant here is directed to "peace officers in the Province of British Columbia and to authorized agents of the British Columbia Society for the Prevention of Cruelty to Animals appointed as Special Constables under the Police Act." Seen in that light, it is purely fortuitous that the warrant was actually executed by the same person who swore the Information to Obtain. Such fortuitousness cannot be determinative of the validity of the warrant document itself.

[11] It must be remembered that the rationale for requiring specificity of location on the face of a warrant is to avoid warrants becoming an instrument of abuse: Re McAvoy (1971), 12 CRNS 56 (NWT Terr. Ct.). The best way to protect that principle is to ensure that any person who is authorized to execute the warrant should, by looking at the warrant itself, be able to obtain a reasonably precise conception of the place which is to be searched. The warrant in this case plainly does not meet that test. I agree with the Defendants that this warrant is so seriously defective concerning the description of the place to be searched that it is void.

[12] The search which occurred here must therefore be categorized as warrantless. It is prima facie unreasonable. It falls to the Crown to advance some other ground or grounds from which a finding of reasonableness could be made, as, for example, the Defendants' consent or the fact of a lawful arrest occurring simultaneously with the search. The Crown has advanced no such alternative grounds, nor are any apparent to me. Therefore, the search was unreasonable, within the meaning of Section 8 of the Charter.

[13] The Defendants are, of course, entitled to explore the full extent of the "unreasonableness" of the search in order to lay a proper foundation for any submissions concerning an appropriate remedy. Thus, even though I have already found the search to be unreasonable I will address the arguments arising out of the manner in which the search was executed.

(ii) THE EXECUTION OF THE SEARCH WARRANT:

[14] The Defendants submit that the search here was conducted contrary to law in two respects. First, it is said that Special Constable Morse improperly brought onto the Defendants' premises persons who were not authorized by the warrant to be there. Second, the defence contends that some of those persons who accompanied Special Constable Morse acted beyond the scope of the warrant in taking photographs and videotape footage of the Defendants' premises. The defence says that these unlawful acts augment the unreasonable nature of the search. The view which I take on the matter leads me to deal with the two arguments together.

[15] When Special Constable Morse attended at the Defendants' premises to execute the warrant on August 24, 2002 she was accompanied by a total of five persons. Those persons, and their apparent respective functions at the scene, may be described as follows:

1. Constable Keibel of the Royal Canadian Mounted Police was there to maintain order if necessary. His presence is specifically mandated by Section 21 of the Act and is not in issue;

2. Patricia Colbourne, a former manager of the Quesnel SPCA office and an ongoing volunteer worker in that office, was asked by Special Constable Morse to attend for the purpose of taking still photographs. She had no experience with horses and did not assist in any way to examine any of the horses discovered during the search. Nor did she assist in loading any of those animals into the horse trailer once the decision had been made to remove the animals from the premises;

3. Fawna Eyford was asked by Special Constable Morse to attend to take video footage of the scene and of the allegedly distressed animals in particular. She took about 20 minutes of footage of the animals and of the premises generally. She then assisted in loading the animals aboard the horse trailer. She had agreed on the day before the search that she would board any distressed horses upon her property if the need should arise, and she did so for a period of months following the search and seizure of August 24, 2002;

4. Dr. Magnowski, a veterinarian, attended at Special Constable Morse's request to assess the health of any horses discovered during the search and to advise her about appropriate courses of action from a medical perspective. Special Constable Morse had no medical or veterinary training herself; and

5. A driver, whose name was not disclosed in evidence, attended at Special Constable Morse's request to assist in loading any seized animals into the horse trailer, and to transport any such animals to a place of sanctuary.

[16] During the course of submissions, counsel directed my attention to various case authorities which deal with the propriety of bringing persons not specifically named in a warrant onto the property to be searched for purposes of providing assistance to the searchers in one form or another. After reviewing those cases, I am satisfied that the weight of authority permits the use of unnamed persons, so long as any such persons are in attendance for a purpose directly authorized by the warrant, and so long as they operate under the direction of the person or persons actually named in the warrant as authorized to search. See especially R v. Heickel and MacKay (1984), 57 AR 221 (CA); R v. Fekete reflex, (1985), 17 CCC (3d) 188 (Ont CA); Strachan v. The Queen 1988 CanLII 25 (S.C.C.), (1989), 46 CCC (3d) 479 (SCC); and R v. J.E.B. reflex, (1989), 52 CCC (3d) 224 (NSSCAD).

[17] Counsel sought to distinguish the authorities to which I have referred above on the basis that each of them deals with legislation authorizing specifically named persons to execute the warrant, whereas the warrant before me is in a prescribed form authorizing a broadly-defined group of people to search. The significance of the differing legislative provisions was not fully developed in argument, however, and I must confess that it is not readily apparent to me. The rationale of the cases to which I was referred would seem to apply equally to the case before me.

[18] In the present case, the evidence satisfies me that all of those who attended at the Defendants' premises conducted their assigned duties entirely, or virtually entirely, under the direction of Special Constable Morse. She plainly was viewed as the person in charge during the execution of the warrant.

[19] The difficulty which I see, however, stems from the relatively restricted nature of the warrant issued in this case. The warrant reads in part as follows:

This authorizes you to enter the Premises between the hours of 2:00 pm on Aug 24/02 to 12:00 am on August 25/02 and to take any action authorized by the Act to relieve the animals' distress.

[20] That wording must be read in conjunction with the provisions of Section 13 of the Act:

13 (1) An authorized agent who believes, on reasonable grounds,

(a) that there is an animal in distress in any premises, vehicle, aircraft or vessel; or

(b) that an offence under section 24 has been committed an that there is in any premises, vehicle, aircraft or vessel, any thing that will afford evidence of that offence, may enter the premises, vehicle, aircraft or vessel with a warrant issued under subsection (2) for the purposes of:

(c ) determining whether any action authorized by this Act should be taken to relieve the animal's distress, or

(d) searching for any thing that will afford evidence of an offence under section 24.

[21] Taken together, the wording of the statute and the warrant itself make it plain that those who execute the warrant were not intended to go onto the Defendants' property to gather evidence concerning an alleged offence, but solely for the purpose of taking such actions as may be authorized by the Act to relieve the distress of any needy animal. This was a warrant whose wording tracked Section 13 (1)(c ), not Section 13 (1)(d).

[22] Section 11 of the Act then becomes of importance in determining the scope of activities which those executing a warrant may perform in order to relieve an animal's distress. That section reads as follows:

If an authorized agent is of the opinion that an animal is in distress and the person responsible for the animal does not promptly take steps that will relieve the distress, or cannot be found immediately and informed of the animal's distress, the authorized agent may, in accordance with sections 13 and 14, take any action that the authorized agent considers necessary to relieve the animal's distress, including, without limitation, taking custody of the animal and arranging for food, water, shelter and veterinary treatment of it.

[23] The warrant in this case thus differs significantly from the types of warrant issued under Section 487 of the Criminal Code or Section 11 of the Controlled Drugs and Substances Act. The execution of a warrant issued under those provisions necessarily involves a search for evidence to be used for prosecutorial purposes. Not so with a warrant issued under Section 13(1)(c) of the Prevention of Cruelty to Animals Act.

[24] It is obvious that the presence of the veterinarian and the trailer operator was necessary for due execution of the warrant. But the presence of photographers and video camera operators cannot be justified as being within the scope of the warrant. When pressed on this point in cross-examination during the voir dire, Special Constable Morse conceded that the attendance of neither Ms. Eyford nor Ms. Colbourne assisted in any material way in assessing the conditions of the animals or determining what course of action to take to relieve the animals' distress. The involvement of Ms. Eyford and Ms. Colbourne in loading the animals onto the horse trailer appears to have been entirely incidental to the real reason for their presence at the scene, namely to document evidence for possible later use in court.

[25] For the reasons stated above, it is my view that the involvement of a photographer and a video camera operator in the execution of this warrant was unnecessary and improper. To that extent, the execution of the warrant in this case was carried out in an "unreasonable" fashion, within the meaning of Section 8 of the Charter.

[26] As a final note, it is wise to remember why the law regarding the execution of warrants limits the use of "assistants" to those actually required for the purpose of fulfilling the warrant's objectives. In the first place, the execution of a warrant necessarily involves state intrusion into the privacy of one or more members of the citizenry, and as a matter of principle any such intrusion should be kept to a minimum. Second, it is obvious (or it should be) that the person or persons whose privacy is being invaded are far more apt to respond in a hostile manner when confronted with unnecessary "hangers-on" than they would be in circumstances where a warrant is executed with a minimum of fanfare and personnel. The law traditionally abhors behaviour that has the potential to lead to civil unrest and has always promoted and encouraged courses of action which minimize such risks.

REMEDIES:

[27] What remedies, if any, are appropriate in this case of unreasonable search? The Defendants submit that all evidence obtained as a result of the execution of the warrant should be excluded, while the Crown maintains that all of it should be admitted notwithstanding the flaws in the process.

[28] In order to assess appropriate remedies, I have examined the evidence in accordance with the principles set forth in R v. Collins, above, and R v. Stillman 1997 CanLII 384 (S.C.C.), (1997), 113 CCC (3d) 321 (SCC). As a result, I have concluded that the videotape footage and the photographs taken on the Defendants' property should be excluded, but that the remaining evidence should be admitted. I will briefly explain my reasoning.

[29] None of the evidence resulting from the execution of the warrant in this case can be categorized as "conscriptive evidence", as that term is explained in Stillman. Its admission would not render the trial process unfair, and so I must proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.

[30] One of the most significant features of this case, in assessing the seriousness of the breach, is the inexperience of the Special Constable who applied for the warrant and ultimately executed it. Special Constable Morse testified that this was the first warrant which she had ever prepared or executed. Conducting her duties in a small town far removed from colleagues to assist her, she telephoned her superiors in the Lower Mainland seeking guidance, but was simply told to disclose as much material as possible when making her warrant application. It is not clear whether or not she sought help with the wording of the warrant document itself (which she prepared), although surely the Justice of the Peace issuing the warrant bears equal responsibility to ensure that such matters as the description of the location to be searched should be described properly on the document.

[31] All things considered, I am firmly of the view that Special Constable Morse acted in good faith throughout the warrant process, even bearing in mind the Courts' cautions over the years that the term "good faith" ought not to be used so as to simply put a premium on police officers remaining in ignorance of the law: See R v. Harris and Lighthouse Video Centres Ltd. reflex, (1987), 35 C.C.C. (3d) 1 (Ont. CA) and R v Kokesch (11990), 61 CCC (3d) 207 (SCC). The consequences flowing from a lack of knowledge are somewhat more excusable in the case of an investigator preparing and executing her first warrant than they might be in the case of an experienced officer.

AAS: Note: A well-meaning amateur is how the judge described SPCA Special Constable Drever's bringing of Global TV to the seizure in Regina v. Kenneth Roos and Lori Stevens (Cross-examination of Eileen Drever: Voir dire, and Evidence of Dr Bates (veterinarian), re: SPCA seizure of cattle in Harrison Lake, BC) in 1998, and giving Global the SPCA video of the seizure which it aired on TV that night. Eileen Drever was an old hand and still she trampled citizens rights. The SPCA got around $50,000 in immediate revenue from this seizure and then there are the on-going years of donations from the public who saw the video that can't be calculated. But it was a near thing. The lawyer for Roos and Stevens, Jack Harris, argued that the video was inadmissible because of Drever's illegal use of it, but the judge was one of many judges who believe that the SPCA could not possibly be acting in bad faith and he did not "(bear) in mind the Courts' cautions over the years that the term "good faith" ought not to be used so as to simply put a premium on police officers remaining in ignorance of the law". Drever almost ruined this case of real cruelty because of "playing to the media". But, as is being shown all over North America, playing to the media to get donations is what "Cruelty Seizures" is really about, not animal welfare. If the seizures were about animal welfare, most animals would not be seized but would be left in their familiar surroundings and improvements enforced through fines.  If the seizures were about animal welfare, none of the animals would be summarily killed by the SPCA. If seizures were about animal welfare, they would not be made until the SPCA had standards of care guidelines in place (for pet breeders at least), but then that would mean that breeders might know what was expected of them by the SPCA.  Instead of doing the lawful and honest thing, the SPCA told dog breeders on one inspection that they (the breeders) were doing nothing wrong and on the next inspection they swooped in and seized the dogs. Two plus two makes four SPCA, and even animal lovers can add, to say nothing of vets, lawyers, and more and more judges. The BC SPCA is seizing animals from people it alleges inflict suffering on animals and then sometimes it really does inflict suffering on those animals.

[32] I also bear in mind, in assessing the seriousness of the breach, that there plainly were reasonable and probable grounds for the issuance of the warrant in this case. The significance of that fact, which was never in issue on the voir dire, was discussed in R v. Sieben, 1987 CanLII 85 (S.C.C.), [1987] 1 SCR 295 and R v. Duarte 1990 CanLII 150 (S.C.C.), (1990), 53 CCC (3d) 1 (SCC).

[33] In dealing with the seriousness of the breach, I note also that there was no actual confusion or misunderstanding about the location to be searched. That is a relevant factor to consider when assessing remedies, even though (as I indicated above) it is quite irrelevant in determining whether or not the warrant document itself is valid.

[34] Finally, on this issue, I have taken into account the exact location to be searched. The location was a farmyard, not the interior of any residence occupied by the Defendants. While the animals in question were not visible from the public road on this occasion, the evidence discloses that other animals were visible on other occasions. Thus, this search was not of the highly intrusive sort normally associated with the execution of warrants on residential property.

[35] With respect to the effect of exclusion of evidence upon the repute of the judicial system, I am satisfied that the pattern of facts of this case generally favours admissibility rather than exclusion. The offences alleged are relatively serious and a good portion of the evidence obtained is essential to the Crown's case. The element of good faith comes into play in assessing this aspect of the matter as well.

[36] There is only one aspect of the evidence which falls outside the general conclusion which I have reached. I am referring to the videotape footage and the photographs taken at the location of the search. That evidence resulted from actions which, in my view, plainly fall outside the proper scope of the warrant. Inexperienced or not, Special Constable Morse had a basic duty to acquaint herself with the limits of the authority granted to her by the warrant. When confronted in cross-examination with the issue about the propriety of photographers at the scene of the search, she readily understood that she had overstepped the mark. That realization should have come before the search, not after.

[37] I am all too aware of a growing tendency to create public fanfare when high-profile searches are being conducted, although I hasten to say that such was not the motivation here. The general problem was discussed in R v. Peet, [1990] BCJ No. 607 (Prov. Ct.) I wish to discourage the trend in any reasonable way that I can, because I view it as bringing grave disrepute of the judicial system, as well as giving rise to an unnecessary potential for confrontation and hostility.

CONCLUSION:

[38] For the above reasons, the photographic and videotape evidence obtained at the Defendants' property will be excluded from evidence upon this trial; the balance of the evidence obtained as a result of the execution of the warrant will be admitted.

______________________

E.C. BLAKE, P.C.J.