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In the Provincial Court of British Columbia Regina v. Defelice, Middlemiss and Cantwell
Written by Nelson Registry No.15302   
Friday, 09 April 1999
The Defendants, Messrs. Defelice ("Defelice"), Middlemiss ("Middlemiss") and Cantwell ("Cantwell") are charged with possession and possession for the purpose of trafficking of psilocin and cannabis marihuana on October 15, 1997. The Defendants made an application to exclude evidence seized from the business premises of the Holy Smoke Culture Shop at 422 Herridge Lane, Nelson, British Columbia ("Shop"). They allege a breach of the right to be free from unreasonable search and seizure as stated in Section 8 of the Charter and pray the evidence be excluded pursuant to Section 24(2).

I. Facts

1. After receiving a complaint that drug transactions may be occurring at the Shop Detective Grant ("Grant") and Sgt. Maluta ("Maluta") set up surveillance.

2. A youth exited the Shop, was arrested by Maluta and found to possess a small amount of marijuana.

3. The youth said he smoked marijuana in the Shop immediately before his arrest.

4. The Shop consisted of public and private areas.

5. Grant and Maluta entered the Shop a short time later.

6. On entry the officers smelled what they thought to be marijuana.

7. Maluta arrested Cantwell and detained 2 customers.

8. Mr. Campbell, a customer, surrendered a small amount of marijuana to Maluta.

9. Maluta released the Cantwell and the customers.

10. About this time Middlemiss entered the Shop, was arrested by Grant and was found to possess a small amount of cannabis.

11. The police testified that before Cantwell left the Shop Grant discovered a baggie of marijuana on a table "in plain sight"("Drugs") and Cantwell was rearrested.

12. The defence contends that the police released Cantwell, evicted him from the Shop, found the marijuana not "in plain sight" and rearrested him outside.

13. Cantwell testified that when he was outside he saw the police looking in private areas of the Shop.

14. After the Drugs were found Maluta used this information to help obtain a warrant to search the Shop ("Warrant").

15. Under the authority of the Warrant the police found more marijuana ("Other drugs") in the Shop.

The seizures of drugs that are disputed are the:

(a) Drugs; and

(b) Other drugs.1

The Defendants have the burden to prove on the balance of probabilities that Section 8 of the Canadian Charter of Rights and Freedoms was breached and that the exclusion of the evidence is justified under Section 24(2).

II. Breach of Section 8 of the Charter

1. The Drugs

Grant testified that he saw the Drugs on a table in the private area. He said that they were easily seen from the public area.

The Defendants contend that the police found this evidence after they illegally searched the private areas of the Shop. The Defendants further contend that the Drugs were not "in plain sight" when discovered by Grant.

Grant took pictures of the interior of the Shop2 but no pictures of the Drugs inside the Shop. He gave no satisfactory explanation for this omission. This is an anomaly but recent concoction is answered by the recitation of the location of the Drugs in the Information To Obtain A Search Warrant ("Information").3

Grant said he cleared the Shop of people then he went outside between 1230pm and 1235pm. He remained outside until the Warrant arrived at 2:55pm except once when he used the Shop telephone to call Maluta.

Grant had radio contact with Maluta but said he lost contact at some point. He gave no other explanation about why he had to use the telephone. The Defendants contend the telephone is located in the private area.

Grant initially said he did not ask to use the telephone. In cross-examination he said he asked Mr. Defelice for permission to use the telephone.

Grant initially said he used the telephone because Maluta asked him to call. Later he agreed that he asked to use the telephone because he was expecting a call from Maluta.

Grant said that at 115pm Maluta radioed that he released Cantwell and Middlemiss. It was after this that he spoke to Maluta for 1-2 minutes on the telephone.

Ms. Nelson, a witness called by the defence, said she called the Shop at 12:45pm and a male person who identified himself as a police officer answered. Grant said he could not remember answering the telephone but that it may have happened.

How was it that Grant could be in the Shop to answer the call from Ms. Nelson at least 30 minutes before he talked with Maluta? This was not explained.

Ms. Nelson, Mr. Skof and Cantwell testified for the defence. No substantial contradictions were revealed by cross-examination.

Cantwell testified that the Drugs were not in ''plain sight." He said that he was arrested immediately after the police entered the Shop then released and sent outside.

While outside Cantwell said he saw the police looking in the private areas of the Shop. A short time later Maluta came outside and rearrested him.

Grant did not recall if Cantwell was rearrested outside. Maluta said that Cantwell never left the Shop before he was rearrested.

Mr. Skof testified that he spoke to Cantwell outside the Shop before he was rearrested. This tends to confirm the evidence of Cantwell.

Grant discovered the Drugs. The determination that Grant is a reliable witness is a precondition to finding that the Drugs were found "in plain sight." I cannot make that determination. In all the circumstances I find the evidence of the defence more compelling. I find that the discovery of the Drugs came from of an illegal search.

2. Other drugs

A search pursuant to the Warrant led to the discovery of the Other drugs. The Defendants attack the validity of the Warrant.

" the task ofthe reviewing judge is to examine the record before the authorizing judge, as amplified in review, thereby to determine whether there remains any evidence upon the basis of which the authorizing judge could have given the order."4

Maluta swore the information consisting of 7 paragraphs to secure the issuance of the Warrant:

1. "The source felt that the proprietors were selling drugs, as there were transactions seen and a high volume of traffic to and from the store.5"

The "feeling" that that drugs were being sold was not based on fact. The use of "proprietors" was wrong since Maluta could not recall if the source said he saw more than one Defendant and no Defendant was specifically identified. This paragraph did not assist to determine whether a crime was being committed or that evidence would likely be found in the Shop.

2. "The Holy Smoke Culture Shop is a store devoted to the sale of drug paraphernalia, specifically cannabis products, and the promotion of marihuana and its derivatives."

Maluta denied that this paragraph was drafted to falsely suggest that cannabis products were sold at the Shop but the awkward punctuation could allow that interpretation. Information that the Shop sold paraphernalia used in the consumption of cannabis and materials promoting the legalization of marihuana is not probative ofthe issues.

3. The proprietors of the Holy Smoke Culture Shop openly advocate therepeal of Canadian drug laws pertaining to cannabis.

This paragraph is not probative ofthe issues.

4. Subsequent to the initial information obtained, on October 15, 1997, Sgt. Maluta received information that more than one person was smoking marihuana in the Holy Smoke Culture Shop with the consent of the owner.

Maluta only had information that the youth informant smoked in the Shop that day. The statement that "more than one person" smoked marihuana in the Shop was a misrepresentation.

The use of the present tense and the omission of the information that the youth informant used his own marihuana made this paragraph capable of being misunderstood to mean that there were drugs and ongoing criminal activity in the Shop.

This paragraph should be read down to be that the youth informant was arrested after leaving the Shop and he admitted to using marihuana while inside with Cantwell present.

5. At 1215 hours, October 15, 1997, Sgt. Maluta and Det. Grant attended the Holy Smoke Culture Shop. Immediately upon entry both officers noted a heavy smell of marihuana smoke ... Det. Grant subsequently noted a bag of marihuana (bud) lying in plain view on the counter used by the employees. ... Cantwell was at the counter when the officers entered ...

The smell was consistent with the youth informant using marihuana in the store shortly before. It did not necessarily imply the present existence of marihuana on the premises.

I have found that Grant did not find the bag of marihuana in plain view and I delete this from consideration.

6. ... Middlemiss entered the store and was arrested by Det. Grant. He was searched and found to be in personal possession of a small quantity of marihuana.

Grant arrested Middlemiss because he was an owner of the Shop and the smell of marihuana was detected in the Shop. Middlemiss entered the Shop after the police. Grant did not know when he last saw him in the Shop. Grant did not have sufficient grounds to arrest Middlemiss. The arrest was without proper grounds which made the search illegal.

I will not consider this paragraph in determining whether a search warrant should have been granted.

Paragraph 7 does not add information which may be useful in determining whether a search warrant should have been granted.

Maluta said that there was urgency in the preparation of the Information and that he was hurried in its preparation. The Crown submits that the information should be amplified to include that:

(a) the youth informant was a know drug user;

(b) the breath and clothes of the youth informant smelled of marihuana;

(c) Cantwell was convicted of cultivation in late 80's and early 90's;

(d) Middlemiss was convicted of trafficking;

(e) Cantwell in March, 1997 complained that someone had stolen some of his marihuana plants;

(f) On March 27. 1997 Grant smelled marihuana inside the Shop and on the person of Defelice; and

(g) Cantwell and Defelice had a disrespectful attitude towards the law making possession and use of marihuana illegal.

Without consideration of the Drugs in the Shop the Information lacks evidence on which to infer that drugs or criminal activity will be found in the Shop. Without adopting Morris 7, I find that the extra information does not assist the Crown. I find that the Warrant is invalid.

III. Reputation of the Administration of Justice

The Drugs and Other drugs are real evidence but without further evidence the police could not legally gain access to the Shop to discover it.

The search was of the private areas of a business rather than a dwelling house.

The arrests of Cantwell, Middlemiss and the customers was without a proper basis to believe they were in possession of a drug demonstrates a cavalier attitude towards the laws of arrest and search.

The draughting ofthe Information was troubled by the inclusion of mildly inflammatory non-probative facts and the shading of phrases through the use of punctuation and verb tense which subtly introduced the possibility of prejudicial construction.

The police cannot claim the benefit of good faith. This was lost by the staging of the Drugs, the misrepresentations in the Information, the misrepresentations at trial and the disregard of the Charter.

The possession and the trafficking of illegal substances is a serious concern of the public, particularly when young persons are victims. In this case the trafficking of illegal substances to young persons was hypothesized but never proven.

The search warrant procedures have been established to balance the concerns of the citizens to:

1. arrest, prosecute, and where appropriate, to convict people who are breaking the law; and

2. to be free from unreasonable invasion of their privacy by the police.

The administration of justice in this case cannot endorse the behaviour of the police without a loss of reputation.

I rule that the evidence adduced on the voir dire be excluded.

(Signed)

M. Takahashi, A Judge of the Provincial Court of British Columbia

April 9, 1999

1. The drugs found on Middlemiss are subject to further argument

2. Exhibit B.

3. Exhibit I. Para. 5.

4. R. v. Araujo et al.,(BCCA) Victoria Registry V2936-45; June 30, 1998; para. 10.

5. Paragraph 1 of the Information

6. R. v. Morris [1998] N.S.J. No. 492 (N.S.C.A.)

7. Without having read the B.C. authorities I would have considered a modified approach allowing amplification of facts set out in the Information to Obtain but excluding allegations not related to those facts.

Last Updated ( Monday, 12 January 2009 )
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