R v Bacon: BC Gangster Granted Leave to Appeal to SCC in Unlawful Search Case

The Supreme Court of Canada (“SCC”) has granted leave to appeal in R v Bacon, 2010 BCCA 135, a case in which an accused British Columbia man says that his Charter rights were violated by police who found drugs and weapons in his house and car. The decision will be of significance as it will further clarify the state of the law with respect to the review standards necessary for determining the validity of search warrants.

How It Started

Jonathan Bacon, his girlfriend Rayleene Burton, and Godwin Cheng were arrested on August 4, 2005. Police believed they had just witnessed a drug deal be conducted between Bacon and Cheng. The interaction took place at an Abbotsford, British Columbia townhouse in which Bacon and Burton lived. Bacon, believed to be a member of the notorious “Red Scorpion” gang in British Columbia, had been under constant police surveillance after police had received multiple complaints from neighbours of frequent short visits by vehicles to the house.

After initiating the surveillance (but before the arrest) the police were certain the house was a drug transfer facility and applied for a search warrant. A Judicial Justice of the Peace (“JJP”) refused the search warrant, justifying his decision on the basis that the police lacked reasonable grounds to believe drugs would be found. The head investigator tried to get a warrant however, and was in the process of applying for one when he received a call from the surveillance officers on the case. Despite not having the warrant in hand, the head investigator instructed the surveillance officers to arrest Bacon. The warrant was subsequently approved as it was supported with evidence from the seizures incidental to the arrest.

On arrest, Chen’s vehicle was searched which led to the seizing of 500 grams of marijuana, 92 methamphetamine pills, 15 ecstasy pills, 4 packages of cocaine and $2,600 in cash. In Burton’s vehicle, the police found $88,000. And finally, in the townhouse, officers discovered “24 pounds of prepackaged marijuana, score sheets, a quantity of cash, four firearms (two automatic and two semi-automatic), illegal ammunition, silencers, a bulletproof vest, a police uniform, and a police scanner,” according to the appeal court ruling.

A Miscarriage of Justice At Trial

The issues at trial came down to the following problems.

(1)   Were the arrests of Bacon and Cheng lawful?

(2)   If the arrests of Bacon and Cheng were lawful, then did the product of the incidental search after the arrest provide an adequate basis for a valid search warrant of the house?

Gardner J. held that the arrest was unlawful. In order to justify this finding, he found that Constable Forster (the head investigator) did not have the necessary subjective belief that there were “reasonable and probable” grounds that an offence had been committed.  The reasoning indicated that the denial of an initial search warrant meant that the Constable could not reasonably believe a second warrant was justified. Secondly, Gardner J. reviewed the validity of the search warrant and, ruling it invalid, set it aside, relying on R v Sismey, [1990] 55 CCC (3d) 281 (BCCA) [Sismey], which established a test for determining the validity of search warrants.

The Court of Appeal Finds the Arrest was Lawful

The law surrounding lawful arrests is fairly simple. For an officer to authorize an arrest, the officer must have a subjective belief that there are sufficient grounds for an arrest. According to the trial judge, receiving a report from his officers stating that they saw Cheng and Bacon handling boxes and a suspicious looking garbage bag did not give Constable Forster the necessary belief to order the arrest, despite the constable’s testimony that he believed a drug exchange had just taken place.

Donald J. at the Court of Appeal disagreed with the trial judge’s findings. On appeal, the Crown argued that the finding that a prior search warrant refusal precluded Constable Forster from having reasonable belief to authorize an arrest was incorrect. This argument was accepted by Donald J., who held that a prior warrant denial cannot bind anyone, since the police always have the option to make another application without regard to a previous decision (established in R v Duchcherer; R v Oakes, 2006 BCCA 171). Additionally, Donald J. convincingly wrote that police officers cannot be expected to alter their beliefs to conform with a JJP’s opinion. Instead, the validity of an arrest must be judged according to the well-established terms set out in R v Storrey, [1990] 1 SCR 241. This decision in itself led Donald J. to order a new trial for Bacon and Cheng.

The Court Goes on to Discuss the Search Warrant

In obiter, Donald J. pointed out the trial judge’s error in invaliding the search warrant. By relying on Sismey, the trial judge made a fundamental error since the case is now bad law. It was overtaken by R v Garofoli, [1990] 2 SCR 1421.

The trial judge was understandably concerned with certain aspects of the supporting materials for the warrant. Specifically, one account stated,

the people Bacon meets are generally young East Indian males driving high-end sport utility vehicles. However, Donald J. stated the trial judge’s role is not to completely invalidate a warrant based on statements such as these. Instead, the trial judge’s role in reviewing the validity of a search warrant is to consider whether the supporting materials could support the issuance, while disregarding any objectionable features.

Thoughts on the Pending SCC Decision

I hope the SCC upholds the Court of Appeal’s decision in favour of the Crown.  Upon examining the Court of Appeal’s decision, the reasoning does not appear to have any obvious weaknesses – indeed, the trial judge’s decision to rely on bad law is certainly not defendable!

The one issue I can see being given significant attention is the controversial statement made in the supporting reasons for the search warrant by the police with respect to the race of those Bacon was allegedly conducting drug deals with. The statement could be interpreted as using racial stereotyping to direct police to the drug house. There have been cases in Canada where racial profiling has led to drug charges being dropped (see R v Campbell, 2005 CanLII 2337 (QCCQ)). However, in an interesting twist, the accused (Jonathan Bacon) is not in the minority group identified in the statement at issue. While the issue of racial profiling was not discussed in the Court of Appeal reasons, it is quite possible the SCC will emphasize it at Bacon’s hearing.

However, as Donald J. pointed out, one statement suggesting racial profiling should not be enough to completely invalidate a warrant. Ultimately, it makes sense that an officer could believe that a known gangster with vehicles constantly visiting his house might be engaging in illegal activities and would provide the requisite suspicion for a search warrant. No hearing date has been set as of publication, however, so we will have wait to see what our highest court does to finally decide this matter.