ISSUES
Summary of Issues and the Crown's Position
- The Accused in the present case has raised several issues in the Charter voir dire. The Crown's position with respect to those issues are as follows:
- The search warrant for 7238 Knight Street, Vancouver, B.C. (the "Accused's Residence") issued on June 6, 1999 is valid and the search of the Accused's Residence did not violate s. 8 of the Charter. In particular,
- Upon amplification on review, the Information to Obtain a Search Warrant sworn by Cst. Houghton contained sufficient grounds to support the issuanceH of the search warrant; and
- The police were entitled to obtain a telewarrant.
- Even if the police violated s. 8 of the Charter, the evidence should not be excluded under s. 24(2) of the Charter. The Information to Obtain Contained Sufficient Grounds
- The Crown submits that Cst. Houghton's Information to Obtain a Search Warrant contained sufficient grounds to support the issuance of the search warrant on June 6, 1999
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In the afternoon on Sunday, June 6, 1999, Constable Bruce-Thomas responded to a 911 call that there was a male with a gun in the area of East 57th Avenue and Ninth Street. His search for the suspect and the gun led him to the front lawn of Mr. Fraser's residence. There, Constable Bruce-Thomas detected a strong odor of bulk or growing marijuana. He also observed the windows of Mr. Fraser's residence were covered with fabric and that there was condensation on one of the windows.
After finishing the search for the gun, Constable Bruce-Thomas told Constable Houghton what he observed at Mr. Fraser's residence. Constable Houghton returned to his office in Vancouver and prepared an information to obtain a search warrant for Mr. Fraser's residence. In the information, Constable Houghton correctly stated that Constable Bruce-Thomas smelled marijuana while standing on Mr. Fraser's front lawn, and that the windows of the residence were covered. Constable Houghton, however, stated that the windows were covered with plastic and that there was condensation on all of the windows.
The only on-duty justice of the peace was in New Westminster, a thirty-minute drive from Constable Houghton's office. Because it was a Sunday, Constable Houghton's squad was staffed at the minimal level acceptable under police guidelines. He was concerned that if he drove to New Westminster to obtain the search warrant there would not be enough police officers . . .
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