The Lloydsmith case centered around an alleged marijuana grow operation found in a residence in Mission, British Columbia, and the application of Charter principles to the manner in which evidence for a civil forfeiture action is obtained.
A police officer knocked on the door of the Defendant’s residence after a 911 call was traced to that address. The Defendant told the officer that nobody had called 911 and there were no problems at the residence. Rather than accepting this, the officer forced his way into the residence, injuring the Defendant in the process. As a result of this forced entry, a marijuana grow operation was allegedly discovered.
Mr. Justice Leask of the BC Supreme Court ordered a bifurcated trial in which Charter issues would be addressed separately. In considering the Charter issues, he accepted that erroneous 911 calls are sometimes received as a result of technical malfunctions in the telecommunications infrastructure.
Justice Leask further confirmed that the Charter applies to the manner in which evidence is obtained for civil forfeiture actions:
“ The search conducted by Corporal Chung and constable Sabo was a warrantless search which is prima facie unreasonable and a breach of s. 8. The burden is on the state, in this case the Director, to establish exigent circumstances.”
In conclusion, Justice Leask determined that illegally-obtained evidence should be excised from the Information to Obtain, and that the police therefore lacked reasonable grounds to enter Mr. Lloydsmith’s residence.
“ In terms of the contents of the warrant, of course because of my finding that the warrantless search was not justified by exigent circumstances, I would delete from Corporal Chung’s ITO the reference to what Constable Sabo and himself saw in their warrantless search. The result is with those particulars deleted, there is nothing left in the Information to Obtain to make the warrant valid, so I find that the warrant could not have been properly issued.”
This is one of a growing number of authorities in British Columbia and other provinces in which evidence has been excluded in the civil context as a result of Charter violations.
Decided by the BC Supreme Court on April 2, 2013.
Click here for the full text of the decision.