R. v. Hatton, 2011 ABQB 242

Court of Queen ’ s Bench of Alberta Citation: R. v. Hatton, 2011 ABQB 242 Date: 20110407 Docket: 090559584Q1 Registry: St. Paul Between: Her Majesty the Queen Respondent / Crown - and - Royce Andrew Hatton Applicant / Accused Corrected judgment: A corrigendum was issued on April 13, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Voir Dire Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________

I. Introduction [ 1 ] The Crown charged Royce Andrew Hatton (the “accused”) with several counts of possession of drugs for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act , S.C. 1996, c. 19, ss. 5(2) and 4(1) . The accused applies to have this Court exclude evidence that members of the Royal Canadian Mounted Police in Bonnyville, Alberta (“RCMP”) obtained while executing a warrant to search (the “Warrant”).

The Warrant is titled “Telewarrant” because the RCMP obtained the Warrant from a Justice of the Peace (“JP”) in Edmonton, Alberta, by submitting an Information to Obtain a Search Warrant by facsimile transmission (the “ITO”) to the JP. [ 2 ] The accused argues that the basis on which the RCMP obtained the Warrant breached his rights under

section 8 of the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “ Charter ”). Charter s. 8 provides: 8. Everyone has the right to be secure against unreasonable search or seizure. [ 3 ] If the Warrant is defective then the search would be, ipso facto , unreasonable.

The accused argues that the Warrant was defective in two different ways: 1. the RCMP submitted the ITO by facsimile transmission (“fax”), when it was practicable for them to present the ITO in person before a JP or Provincial Court Judge (“PCJ”), and 2. parts of the information in the ITO were inaccurate or of uncertain reliability, and the correct and reliable information formed an inadequate basis on which the JP could issue the Warrant on reasonable grounds. [ 4 ] Presumptively, evidence that the RCMP obtained in breach of a Charter right is inadmissible.

The accused argues that this Court should exclude that evidence under Charter s. 24(2). II. Facts A. Procedure Leading up to the Obtaining of the Warrant [ 5 ] Cst. Sophie Lebel was the RCMP officer who prepared the ITO. She testified that, at the time she prepared the ITO, she had been an RCMP officer and stationed in Bonnyville for approximately three and one-half years. Cst.

Lebel was the only RCMP officer who testified during the voir dire . [ 6 ] She also testified that there is no presiding PCJ or JP permanently located in Bonnyville, but that there was a presiding PCJ in Bonnyville every second Tuesday and Thursday. She had prepared the ITO on a Friday. Cst. Lebel testified that the Provincial Court

schedule was common knowledge in the Bonnyville RCMP detachment. The closest Alberta Judicial Centre to Bonnyville is St. Paul, which is about 45 minutes to one hour from Bonnyville by automobile. [ 7 ] Cst. Lebel started preparing the ITO around midnight on May 8, 2009. She was on the night shift, which went from 6:00 p.m. until 4:00 a.m. Another member of the RCMP, Cst. Ernst, was present when she started preparing the ITO. Cst. Ernst provided Cst. Lebel with a great deal of the information that found itself into the ITO. Cst. Lebel kept no separate notes of the information that Cst.

Ernst provided to her; she typed the information directly into the ITO as Cst. Ernst provided it to her. Cst. Ernst left after he provided Cst. Lebel with the information. Cst. Lebel then completed the ITO, which took her another three to four hours.

[ 8 ] Cpl. Bouvier reviewed the ITO the next morning. As well, Cst. Lebel testified that she was quite confident that Cst. Ernst had reviewed the ITO, but she could not be absolutely certain. She recalled having a discussion with Cst. Ernst about the ITO that morning, but Cst. Lebel did not maintain any notes concerning this discussion. Cst. Lebel testified that she made some changes to the original ITO draft after these reviews, but she did not retain a copy of the original draft, nor did she make notes concerning the changes. [ 9 ] At 10:09 a.m. on May 8, 2009, Cst.

Lebel faxed the final version of the ITO to the hearing office in Edmonton, where the JP received it. She did not inquire if there was a JP or PCJ in Bonnyville before she faxed the ITO to the hearing office in Edmonton. As well, she did not give any thought to telephoning St. Paul to determine whether a JP or PCJ was present in the court house at that time. Cst.

Lebel felt that there was some urgency in obtaining the Warrant because the RCMP had knowledge that there were illegal substances in the accused’s house and the RCMP wanted to seize and preserve that evidence before the substances were destroyed, relocated, or sold. [ 10 ] Cst. Lebel did not know how long it would take for the RCMP to receive the Warrant from the hearing office in Edmonton. In fact, it took almost seven hours for the hearing office to return the Warrant to Cst. Lebel. [ 11 ] Once she obtained the Warrant, Cst. Lebel put together a team and executed the Warrant. At 5:15 p.m. on May 8, 2009, Cst.

Lebel and her team conducted a search of the residence and seized the contraband. They recovered substantial amounts of marijuana and marijuana products from the accused’s home. B. The ITO [ 12 ] The ITO contains 28 paragraphs. There would be no useful purpose in reciting all of the paragraphs. However, this Court will refer to and quote from some of the provisions contained in the ITO and discuss their impact. [ 13 ] Cst. Lebel was the affiant or informant.

At ITO para. 1 she swears, among other things, that: I am a Peace Officer and have personal knowledge of the matters herein deposed to, save, and except where so stated to be [on] information and belief, and where so stated, I believe them to be true. [ 14 ] This statement provides the foundation on which the entire ITO is built. Unfortunately, it is also inaccurate. Cst. Ernst provided much of the information that is contained in the ITO, but that fact is not acknowledged. Thus, the house that is built on this foundation is not very sturdy. [ 15 ] This foundational issue might be less serious had Cst.

Lebel acknowledged that Cst. Ernst was the source of much of the information contained in the ITO. In ITO para. 2, Cst. Lebel indicates that the ITO will identify the source of information she received via conversations with other members of the RCMP. However, there is no information that falls into that category. Cst. Ernst is never mentioned in the ITO. [ 16 ] ITO para. 3 provides: THAT Informant “A” is a confidential source who has provided information to Bonnyville RCMP for the past [redacted] months. Informant “A” has been an extremely reliable source in the past. Informant “A” is considered to be truthful.

Previous information supplied by Informant has been acted upon and verified. Other information provided by Informant “A” that has not been acted upon, but believed to be true has been verified through other sources and is consistent with other information received. Informant “A” in not being paid for providing information. Informant “A” has supplied information related to other individuals involved in the drug trade which has been confirmed by other sources. Informant [redacted]. Informant A’s information is based on personal knowledge, which I define as the following: i Informant “A” spoke to the person

ii Informant “A” overheard a conversation with the person iii Informant “A” saw items described [ 17 ] The ITO does not explain why Informant “A” has been an extremely reliable source in the past, and why Informant “A” is known to be truthful. For example, the ITO does not provide information on situations where the RCMP has acted on, or verified, information from Informant “A”, or situations where the RCMP has verified through other sources, information that Informant “A” has supplied. When questioned during cross-examination, Cst.

Lebel stated that Informant “A” was “100% reliable.” When asked further, she said she knew this because Cst. Ernst had told her. [ 18 ] Cst. Lebel certainly could have had personal knowledge of the information contained in the first sentence of ITO para. 3. However, she did not. That information came from Cst. Ernst. [ 19 ] ITO paras. 4-6 and 8-13 provide substantive information on the accused’s drug-related activities from October, 2007 through May, 2009.

The descriptions are detailed, but there is no indication that the RCMP ever followed up these tips by arresting the accused, or further wiretap, surveillance, or search warrant investigations. As well, Cst. Lebel testified that she does not know how Informant “A” came to possess this information, although she did say in ITO para. 3 that it was through Informant “A”’s personal knowledge, as defined. [ 20 ] ITO para. 14 describes a further informant, Informant “B”. It says: Informant “B” is a confidential source who has provided information to the Bonnyville RCMP on one occasion.

Informant “B” is of an unknown reliable source and is a member of the community who expressed concerns about the drug dealers in the Town of Bonnyville. The information has not been acted upon, but believed to be true as it has been verified through other sources and is consistent with other information received. Informant “B” in not being paid for providing information. Informant “B” has [redacted].

Informant “B”’s information is based on personal knowledge, which I define as the following: i Informant “B” spoke to the person ii Informant “B” overheard a conversation with the person iii Informant “B” saw items described Cst. Lebel testified that she does not know how Informant “B” came to possess this information, or, for that matter, anything at all about Informant “B”. Furthermore, Cst. Lebel explained that the “other source” used to verify Informant “B” was Informant “A”.

That fact is not disclosed in the ITO. [ 21 ] ITO paras. 15 through 18 detail the information from Informant “B” on the accused’s November 2008 drug-related activities. These descriptions are relatively detailed, but not as detailed as the information that Informant “A” provided. As with the information that Informant “A” provided, there is no indication that the RCMP ever followed up with investigations or by arresting the accused. [ 22 ] The other relevant ITO paragraphs are: ITO para. 20 - Cst. Lebel undertook a Canadian Police Information Centre (“CPIC”) search of the accused.

The CPIC search showed that the accused had a conviction of possession of a narcotic in September 7, 1977, and a conviction for unlawful possession or use of a credit card in September 15, 1982; ITO para. 21 - the accused does not have a valid firearm possession or acquisition license, and has no firearms registered in his name;

ITO para. 22 - the accused is believed to reside at the address set forth in the ITO; and ITO para. 24 - a Town of Bonnyville employee advised Cst. Lebel that at the date of the swearing of the ITO the accused owned the property identified in the ITO, and had owned that property since 2005. [ 23 ] At trial, Cst. Lebel confirmed she did not know either Informant “A” or Informant “B”. All information concerning Informant “A”’s reliability came from Cst. Ernst. Cst.

Lebel further testified that she was “100% positive” that Informant “A” had no criminal record involving crimes of dishonesty, because “this is what Cst. Ernst told [her].” C. Warrant [ 24 ] Based on “reasonable grounds,” the Warrant authorizes Cst. Lebel and other peace officers in Alberta to enter the address identified in the ITO, and search for “marihuana, scales, scoresheets, monies, cellular phones and all drug related paraphernalia.” III. Issues [ 25 ] This voir dire involves two issues: 1. Whether Cst.

Lebel breached the accused’s Charter s. 8 rights by obtaining the Warrant and exercising the powers that the Warrant grants, viz. , entering the accused’s home and seizing the drugs; and 2. if so, whether this Court should exclude the drugs pursuant to Charter s. 24(2). IV. Analysis A. Introduction [ 26 ] Before discussing the issues that are before this Court, this Court considers it necessary to outline the foundational principles that will guide its analysis. [ 27 ] The Criminal Code , R.S., 1985, c. C-46 (“ Code ”) authorizes a JP or PCJ (defined in Code s. 2 as a “justice”) to issue a search warrant. Cst.

Lebel obtained a “telewarrant.” Code s. 487.1 governs the obtaining of such a warrant. It provides: 487.1

(1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with

section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

(2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed,

with the clerk of the court for the territorial division in which the warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents.

(2.1) The justice who receives an information submitted by a means of telecommunication that produces a writing shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the information certified by the justice as to time and date of receipt. ...

(3.1) A peace officer who uses a means of telecommunication referred to in subsection (2.1) may, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to his or her knowledge and belief and such a statement is deemed to be a statement made under oath.

(4) An information submitted by telephone or other means of telecommunication shall include: (

a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice; (

b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure; (

c) a statement of the peace officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and (

d) a statement as to any prior application for a warrant under this

section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge.

(5) A justice referred to in subsection (1) who is satisfied that an information submitted by telephone or other means of telecommunication: (

a) is in respect of an indictable offence and conforms to the requirements of subsection (4); (

b) discloses reasonable grounds for dispensing with an information presented personally and in writing; and (

c) discloses reasonable grounds, in accordance with subsection 256(1) or paragraph 487(1)(a), (

b) or (c), as the case may be, for the issuance of a warrant in respect of an indictable offence. may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued by a justice before whom the peace officer appears personally pursuant to subsection 256(1) or 487(1), as the case may be, and may require that the warrant be executed within such time period as the justice may order. ... [ 28 ] Because Code s. 487 plays an important role in the analysis that this Court intends to undertake, it is worthwhile to provide its provisions as well, which are as follows: 487.

(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place:

(

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed; (

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament; (

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant; or (c.1) any offence-related property; may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (

d) to search the building, receptacle or place for any such thing and to seize it; and (

e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with

section 489.1. ... [ 29 ] When a peace officer applies for a search warrant by telephone, fax machine or some other telecommunications device, Code s. 487.1(4) says that the information the peace officer submits “shall” contain the listed information. Is this information mandatory or permissive? In R. v. Gow , 2010 ABQB 564 , 259 C.C.C. (3d) 364 , Ouellette J. dealt with this issue in a dangerous offender application under Code s. 752.1. Code s. 752.1(1) says that when a prosecutor makes a dangerous offender application: 1.

The court “shall ... remand the offender, for a period not exceeding 60 days” to the custody of a person who can perform an assessment; and 2. that person “shall” provide the court with their report within 30 days after the assessment period. [ 30 ] Ouellette J., after conducting a thorough review of the case law, Code sections that are in pari materia with the one he was considering and scholarly writings on the topic, found that the 60-day time limit was mandatory, and not permissive. Importantly, Ouellette J. also examined recent amendments that Parliament enacted with respect to the

section in question. One such amendment was the addition of a 30-day extension for the filing of the report. Ouellette J. held: 71 ... This change, in my opinion, can only be interpreted as mandatory. To rule otherwise would mean going against the clear intent of Parliament and the intent of the section. ... 72 If the reporting time frames in s. 752.1(2) and (3) are mandatory, it is only logical that the assessment time limit is also mandatory. Again, had Parliament wanted, it could have extended the assessment period to 90 days or 6 months or a year, with the possibility of an extension, but it chose not to.

I suggest the reason that it chose not to is because it intended 60 days to mean 60 days . [Emphasis added]. [ 31 ] Ouellette J.’s reasoning correlates with legislation that governs the

interpretation of legislation. The

Interpretation Act , R.S.C. 1985, c. I-21 provides:

11. The expression "shall" is to be construed as imperative and the expression "may" as permissive. 12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as bestensures the attainment of its objects. [Emphasis added]. [32] In Ruth Sullivan, Statutory

Interpretation, 2d ed. (Toronto: Irwin Law, 2007) at 78, the author said: Often the legislation itself stipulates what the consequences are, but when the legislation is silent, the courts or other interpreters mustdecide. If "shall" is judged to be mandatory, the result of the breach is total nullity. If "shall" is judged to be directory, the result is anirregularity that can be cured. [Emphasis added]. The author goes on at 223: Penal legislation includes not only offences set out in the Criminal Code but any prohibition or restriction on the freedom of the subjectthat is enforced through punishment.

Under the strict construction doctrine, penal legislation is strictly construed; any doubts concerningthe application of the legislation are resolved in favour of the accused. [Emphasis added]. [33] In Gow, Ouellette J. also looked at these principles in arriving at his conclusion. [34] This Court finds that the requirements of Code s. 487.1 are mandatory. A peace officer must comply with the Codeprovisions, regardless of whether the officer obtains a search warrant in the physical presence of the justice, or by telephone or othertelecommunications mechanism. In R. v.

Pastro (1988), (SK CA), 66 Sask.R. 241, 42 C.C.C. (3d) 485 (Sask. C.A.),the Saskatchewan Court of Appeal said: 71 ...

The police officer wishing to obtain ... a warrant must bring himself strictly within the terms of the authorizing legislationand: (1) provide information upon oath about the nature of the grounds for belief; (2) where a confidential informer providesinformation to the police, set out in as much detail as possible the informer's basis of knowledge; (3) substantiate the credibility, veracityor reliability of a confidential informer; and (4) disclose how knowledge of any facts was acquired. [35] Why are these terms so strict?

A search warrant, by its nature, allows the state to invade a person’s privacy, whether theirhome, a motor vehicle, or their person. Thus, the Code and the courts must be vigilant to ensure that search warrants are not issued onmere suspicion or allow the state to undertake a “fishing expedition”: R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 29; R. v.Kokesch, (SCC), [1990] 3 S.C.R. 3 at 29-30, 121 N.R. 161. [36] When a peace officer appears in person before a justice to obtain a search warrant, the justice may question directly the peaceofficer, who is under oath, about the four Pastro factors, if any matters require clarification or amplification: Araujo at para. 29.

Thesame is true where a peace officer appears before the justice by closed circuit television or computer programs such as “Skype” whichallow both parties to see and hear each other in real time. [37] Similarly, when a peace officer communicates with a justice by telephone, the justice can question the officer and obtainadditional information where any matters requires clarification or amplification. The difference, however, is that the justice cannot seethe peace officer.

Thus, during a telephone application for a search warrant, there is a heightened standard for information that the peaceofficer must provide to the justice to ensure that the justice is satisfied that there are “reasonable grounds” to issue the search warrant. [38] Moving along this continuum, the Code and courts require the highest standard of disclosure when the peace officer appears

before the justice by “means of telecommunication that produces a writing.” Currently, a peace officer makes this kind of search warrantapplication by sending an information to obtain a search warrant form (“Information”) through a fax machine. Conceivably, it could alsobe done by way of a document exchange through a computer using, for example, a portable document format. [39] Why is a higher standard of disclosure required? The justice neither sees nor hears the peace officer.

Unless the justiceidentifies something in the text of the Information that requires clarification or amplification, the justice will, quite rightly, assume thatthe matters that the peace officer has outlined in the Information are true and accurate. [40] Because, in many cases, a peace officer is seeking a search warrant to search for evidence, the peace officer will appearbefore, or submit the Information to, the justice ex parte. In Metropolitan Life Insurance Co. v.

Hover, 1999 ABCA 123, 237 A.R. 30,Fruman J.A. said: 23 In an ex parte proceeding, in order to enable the court to make an informed decision, counsel has an obligation to make full, fairand candid disclosure of all non-confidential, non-privileged material facts known to the lawyer, including those which are adverse to hisposition. [Emphasis added, citations excluded]. [41] More recently, in the criminal law context, Lebel J. said in Araujo: 46 Looking at matters practically in order to learn from this case for the future, what kind of affidavit should the police submit inorder to seek permission to use wiretapping?

The legal obligation on anyone seeking an ex parte authorization is full and frank disclosureof material facts ... So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as à la recherche dutemps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully andfrankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legaltest for the authorization.

Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include everyminute detail of the police investigation over a number of months and even of years. [Emphasis added, citations excluded]. Araujo was a wiretap case. However, courts of appeal across this country have applied the principle that the Araujo court provides tosearch warrant cases: reviewed in R. v. Ling, 2009 BCCA 70, 266 B.C.A.C. 281 at paras. 32-33, leave refused [2009] S.C.C.A. No. 165.The Supreme Court of Canada also applied this approach to search warrants in R. v.

Morelli, 2010 SCC 8 at paras. 44, 58-60, [2010] 1S.C.R. 253. [42] The Supreme Court of Canada in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, 116 N.R. 241 provides thestandard of review a trial judge applies when evaluating the decision of the justice to issue a search warrant: 68 The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which wasbefore the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. See also R. v. Caissey, 2007 ABCA 380 at para. 15, 422 A.R. 208, affirmed 2008 SCC 65, [2008] 3 S.C.R. 451; R. v. Carrier (1996),1996 ABCA 145 , 181 A.R. 284 at para. 51, 36 C.R.R. (2d) 310 (Alta. C.A.). [43] The Garofoli court permits the record before the trial judge to be “amplified.” What does this mean?

The Morelli court said: 41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. ...[T]he reviewing court may have reference to "amplification" evidence — that is, additional evidence presented at the voir dire to correctminor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather thandeliberate attempts to mislead the authorizing justice. [Emphasis added].

[44] The Araujo court indicated the limits for amplification evidence: 59 ... The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement.Since a prior authorization is fundamental to the protection of everyone's privacy interests ..., amplification cannot go so far as to removethe requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham.

On the otherhand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable andprobable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the draftingof their affidavit material.

Courts must recognize (along with investigative necessity) the two principles of prior authorization andprobable grounds, the verification of which may require a close examination of the information available to the police at the time of theapplication for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in anaffidavit on a wiretap application attempts to reconcile these principles.

Courts should take a similar approach to amplification.[Emphasis added]. [45] Interestingly, the Morelli court might have opened the door to allow the parties to adduce more substantive evidence during avoir dire, when it said: 60 ... [W]here, as in this case, the police fail to discharge their duty to fully and frankly disclose material facts, evidence adduced atthe voir dire should be used to fill the gaps in the original ITO. B. Unreasonable Search and Seizure, Charter s. 8 [46] In this case, Cst. Lebel complied with Code s. 487.1(4), by providing the mandatory information.

The question then becomes,whether she provided enough information, such that the JP should have issued the Warrant. If the JP should not have issued the Warrant,this Court must find that the subsequent search violated Charter s. 8: Morelli at para. 97; Pastro at para. 65. The fact that the RCMPfound the drugs that form the subject-matter of the charges against the accused does not make the Warrant and the search pursuant to theWarrant Charter-compliant. As Justice Dickson said in Canada (Director of Investigation & Research, Combines InvestigationBranch) v.

Southam Inc. (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641: ... Such a post facto analysis would, however, be seriously at odds with the purpose of [Charter] s. 8. That purpose is, as I have said, toprotect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searchesbefore they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view,can only be accomplished by a system of prior authorization, not one of subsequent validation. [Emphasis in original].

In other words, the ends do not justify the means. [47] For this Court to determine the sufficiency of the information contained in the ITO, it is useful to examine several sub-issues. 1. Impracticability [48] For the reasons discussed earlier, the usual procedure for a peace officer to apply for a search warrant is by physicallyattending before a justice. If that is “impracticable,” the peace officer may apply using telecommunications facilities. Recall that Codess. 487.1(1) and 487.1(4)(

a) provide: 487.1

(1) Where a peace officer believes ... that it would be impracticable to appear personally before a justice to make application for awarrant ... ...

(4) An information submitted by telephone or other means of telecommunication shall include (

a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice; ... [Emphasis added]. [ 49 ] A number of British Columbia cases have discussed what Parliament meant by the word “impracticable.” In R. v. Berry , 2002 BCSC 1742 at para. 25 , 56 W.C.B. (2d) 630 , the court held that because it was the “practice” of the police always to apply for “telewarrants” does not lead to the conclusion that it was impracticable to do otherwise. This Court agrees.

However, in Berry , the court found that it would be impracticable to appear personally before a justice because in Gibsons, British Columbia, there was no local justice and the nearest place at which the peace officer could appear personally before a justice was Vancouver, which was almost 2 hours away and included one ferry ride. [ 50 ] In R. v. Young , 2008 BCCA 513 , the British Columbia Court of Appeal upheld the trial judge’s decision that peace officers could rely on information they received in 2004 that there were no judicial justices of the peace in the locale in which the peace officers were located.

Furthermore, the peace officer did not have to check “each time with the registry to confirm that that was so”: Young at para. 23 . It should also be noted that the Chief Judge of the British Columbia Provincial Court has issued a directive that “in-person search warrant applications would only be assigned to available judicial justices of the peace not to judges of the Provincial Court”: ibid. [ 51 ] In R. v.

Phillips , 2004 BCSC 1797 , 65 W.C.B. (2d) 471 the peace officer testified that there were no judicial justices of the peace sitting in the peace officer’s immediate locale, and the peace officer would need to travel 45 minutes to 1 hour to a place where he could find one. The court held that even though there was no urgency or exigent circumstances, those “are not prerequisites to the issuance of a telewarrant” (at para. 20).

Based on the court’s finding at para. 23 that impracticability “is a relatively low threshold to meet,” the court held it would be impracticable for the peace officer to travel that distance, or wait until a justice was available in the peace officer’s location. [ 52 ] These cases are distinguishable from the one before this Court. There was no evidence presented to this Court that the Chief Judge of the Provincial Court of Alberta has ever issued a practice note that only justices of the peace would be able to issue warrants.

The travel requirements in Berry are significantly greater than the distance between Bonnyville and the nearest available PCJ or JP. In Young , the peace officer checked with a registry to see if judicial justices of the peace were available the officer’s locale, and was advised that there were not. There was no evidence presented to this Court that the Bonnyville RCMP ever checked with the registry. [ 53 ] The British Columbia Court of Appeal distinguished Berry and Young on these same bases in R. v. Ling at paras. 26-27 . In R. v.

Ling the court found that the peace officer’s lack of effort to confirm that no judicial justice of the peace was available contributed to the seriousness of the Charter breaches. [ 54 ] While these cases provide some examples of when a peace officer is required to be physically present during application for a search warrant, the actual language in Code s. 487.1 is critical. For this Court to understand what Parliament meant when it used the word “impracticable,” it might be useful to examine the meaning of the term.

The Oxford Dictionaries , online: <http://www.oxforddictionaries.com/definition/impracticable?view=uk>, defines impracticable as “(of a course of action) impossible in practice to do or carry.” Using this definition, it seems that Parliament might have intended to use the term “impractical.” For a peace officer to show that it is “impracticable” to appear personally before a justice would be a standard that a peace officer could rarely meet. For example, a peace officer located in Northern Canada could not say that it is “impossible in practice” to appear before a justice.

The peace officer could wait for several days for an airplane to take them to, say, Yellowknife, and wait for several more days before an airplane could return them to their home region to exercise the warrant.

Based on this definition, this procedure is clearly impractical , but not impracticable . [ 55 ] A better definition might be the one that appears in the Oxford Advanced Learner’s Dictionary , online: <http://www.oxfordadvancedlearnersdictionary.com/dictionary/impracticable>, which defines “impracticable” to mean, “impossible or very difficult to do; not practical in a particular situation.” In this sense, the peace officer must show only that the circumstances made it very difficult to obtain the warrant. [ 56 ] It is interesting to note that the Oxford Dictionaries online also contrasts the appropriate use of the term “impracticable”and

“impractical.” It says: Although there is considerable overlap, impracticable and impractical are not used in exactly the same way. Impracticable means ‘impossible to carry out’ and is normally used of a specific procedure or course of action, as in poor visibility made the task difficult, even impracticable . Impractical, on the other hand, tends to be used in more general senses, often to mean simply ‘unrealistic’ or ‘not sensible’, as in, in windy weather an umbrella is impractical .

The example the Oxford Dictionaries uses to describe “impracticable” shows that poor visibility does not make the task impossible; only virtually impossible. [ 57 ] This Court finds that Parliament’s use of the term “impracticable” is that as defined in the Oxford Advanced Learner’s Dictionary . Parliament could not have intended that peace officers can only use Code s. 487.1 in situations where physical attendance is virtually impossible. A peace officer need only show that it would be “very difficult or not practical in a particular situation” to appear personally before a justice.

It is interesting to note that in the ITO, Cst. Lebel used the word “impractical,” rather than “impracticable.” However, this Court must examine the reasons she gave, and apply the appropriate definition of “impracticable,” rather than the wording used by Cst. Lebel. [ 58 ] The Phillips court said at para. 24 , that “the telewarrant legislation was intended to incorporate the use of modern technology to bridge gaps over time and distance.” This Court agrees with that statement.

However, this Court, with respect, does not agree with the Phillips court’s statement that impracticability is a “relatively low threshold to meet.” Because of the privacy rights on which a search warrant, of its nature, impinges, and the fact that the peace officer who uses the telewarrant procedure applies ex parte , this Court finds that a peace officer must provide cogent reasons why a personal appearance before a justice is impracticable. A mere statement that personal attendance is impracticable is not enough.

The peace officer must explain why it is impracticable and the efforts they made to evaluate possible alternatives to obtaining a search warrant by telephone or other means of telecommunication. [ 59 ] In this case, the ITO says that “The Bonnyville judicial area does not have a presiding justice of the peace or judge.” Cst. Lebel testified that there was no JP or PCJ in Bonnyville on the day she submitted the ITO to the hearing office in Edmonton. St. Paul, the nearest place at which Cst. Lebel could obtain the Warrant in person, was 45 minutes to one-hour away. Cst. Lebel did not call the St.

Paul court house to determine if there was a PCJ available at 10:00 a.m., see R. v. Breland , 2000 ABPC 110 . Nor did she ask the hearing office whether there was a JP in the area of Bonnyville or St. Paul. [ 60 ] There may be circumstances where a 45 minute to one-hour delay may be impracticable. However, in this case there was no urgency, except that Cst. Lebel said she was concerned that evidence might disappear. However, from the balance of the ITO, it appears that the RCMP had evidence of the accused dealing with drugs for many years before the date on which Cst. Lebel prepared the ITO. It took Cst.

Lebel about 7 hours from the time she submitted the ITO, to her receipt of the Warrant. Where was the urgency? Did she call the hearing office? Did she advise the hearing office of the urgency? [ 61 ] Must a peace officer show that they have made inquiries to determine whether a justice resides near a detachment, or that a court house 45 minutes or one hour away has a justice present, or that there is urgency in the obtaining of the warrant? That is not the test that Parliament requires peace officers to meet.

The test is whether it is “impracticable for the peace officer to appear personally before a justice.” [ 62 ] This Court concludes that the appropriate test is contextual. Significant travel distances and times may make a personal appearance impracticable, depending on, for example, weather conditions. Uncertainty as to whether a JP or PCJ is available may make a personal appearance impracticable. Where a warrant is urgently required or relates to a developing situation, then that too may make personal appearance impracticable.

An officer is not expected to ‘turn over every rock’ and search for alternatives, so reliance on known standard court procedures and schedules is valid. When an officer has a reasonable basis to conclude that a JP or PCJ is not available within a relatively short travel distance, then personal deposition of an Information is “impracticable,” particularly in the light of the fact Parliament has provided a telecommunications-based alternative. [ 63 ] In this case, for this Court to require Cst. Lebel to travel between one and a half to two hours to and from St. Paul, assuming that there was a JP or PCJ in St.

Paul at that time, or the further four and a half hours to travel to and from Edmonton, would be very difficult and not practical in the circumstances. Peace officers should not have an obligation to travel from community to community, on a hunt for a justice, when legislation provides for an efficient and centralized mechanism to file an Information and obtain a warrant.

[ 64 ] The difficulty in this case is that the ITO did not provide the JP with that explanation. It says simply, “The Bonnyville judicial area does not have a presiding justice of the peace or judge.” In fact, the Alberta Provincial Court sits in Bonnyville every second Tuesday and Thursday. It does not sit in Bonnyville on Fridays, which was the day that Cst. Lebel completed and submitted the ITO to the hearing office. Cst. Lebel should have told the hearing office this fact, as well.

Even adding the words at the end of the sentence, “on Fridays” might have been a sufficient circumstance that would make personal attendance “impracticable.” Furthermore, it was possible that there was a sitting PCJ in Bonnyville, but Cst. Lebel did not telephone the Bonnyville court house to determine that fact. Although this Court would not require Cst. Lebel to “turn over every rock,” it agrees with Ling that the peace officer has to make some effort or, at least, explain why that effort is not necessary or required in the circumstances. [ 65 ] The British Columbia Court of Appeal in R. v.

Nguyen , 2009 BCCA 89 at para. 18 , 267 B.C.A.C. 91 said “the onus was on the [accused] to demonstrate that the standard of impracticability was not met.” Based on the circumstances in this case, the accused has met his onus. Cst. Lebel did not provide the JP with an explanation of the circumstances that made her situaton impracticable. [ 66 ] As mentioned earlier in these reasons, a better approach would be for Cst. Lebel to speak with a JP via telephone and provide the information in that manner. Cst. Lebel did not explore this possibility with the hearing office.

This is not, however, a requirement of Code s. 487.1. That provision only tests the telewarrant against appearance in person . [ 67 ] Finally, this Court has already noted that Cst. Lebel used the term “impractical” rather than “impracticable.” It also notes a couple of other things with respect to the form that the Bonnyville RCMP is using. The French version says, Les circonstances suivantes m’empêchent actuellement de comparaître en personne devant un juge pour présenter une demande de mandat:” The term “m’empêchent actuellement” sets a much higher standard than “impracticable.” If Cst.

Lebel did not meet the “impracticable” requirement, she clearly did not meet the “m’empêchent actuellement” requirement. [ 68 ] The Bonnyville RCMP might want to consider changing the form that it uses. The French version of Code s. 487.1(4) reads: (

a) un énoncé des circonstances qui rendent peu commode pour l’agent de la paix de se présenter en personne devant le juge de paix; The phrase “peu commode” sets a lower standard than the one the Bonnyville RCMP is using. Even using this as the test, however, the ITO does not meet that requirement. Cst. Lebel provided a statement, but not the circumstances why the absence of a presiding justice of the peace or judge makes this “impracticable,” “m’empêchent actuellement,” or “peu commode.” 2. Grounds for Belief [ 69 ] Recall that Code s. 487.1(4) provides: 487.1

(4) An information submitted by telephone or other means of telecommunication shall include ... (

b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure; (

c) a statement of the peace officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found

in the place or premises to be searched; ... [70] The peace officer could provide information that they have obtained through their own investigations and of which the peaceofficer has direct knowledge. Often, however, the peace officer provides information that is gleaned from other sources. In fact, theSupreme Court of Canada contemplated this type of information in Garofoli when it said at paras. 81-86: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tipfrom an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances." There is no formulaic test as to whatthis entails. Rather, the court must look to a variety of factors, including: (

a) the degree of detail of the "tip"; (

b) the informer's source of knowledge; and (

c) indicia of the informer's reliability, such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [71] The Garofoli statement essentially expands on an earlier approach to informant tips that the Supreme Court of Canada used inR. v.

Debot, (SCC), 1989 CarswellOnt 111 at para. 60, [1989] 2 S.C.R. 1140, 102 N.R. 161: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a"tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test.

Rather, Iconcur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [72] Cst. Lebel testified that almost all of the substantive information she inserted into the ITO originated from Cst. Ernst.Garofoli permits hearsay information and, in fact, Cst.

Ernst’s information would provide reasonable grounds, if that information werereliable and compelling, and the information source was credible. [73] The second factor that Debot identifies suggests that any “tip” from a police officer would be credible. However, courts mustsubject even police information to a rigorous analysis to ensure its reliability; especially when a police officer is simply conveyinginformation obtained from an outside non-police source. In other words, information which is “double hearsay” is not, ipso facto,unreliable, provided that information can withstand a rigorous analysis.

In brief, Cst. Ernst is credible and arguably reliable. However, isthat also true of his “source”? [74] The case law provides us with certain principles that might assist us in conducting a Garafoli/Debot analysis: 1. It is the justice who makes the determination as to whether there are reasonable grounds to issue the search warrant: Pastro atpara. 55.

2. The peace officer must not simply swear that they have reasonable grounds for believing the alleged facts presented in theInformation. The peace officer must present facts on which the justice can judicially satisfy themself that reliable grounds exist for thepeace officer’s belief and that the information is true and accurate: Pastro at para. 58; R. v. Debot (1986), (ON CA), 17O.A.C. 141, 30 C.C.C. (3d) 207 (Ont C.A.) at para. 17, affirmed (SCC), [1989] 2 S.C.R. 1140, 102 N.R. 161. Such factsmight include: (

a) from where or whom the peace officer obtained the information: ibid.; Ling at paras. 42, 44; (

b) the informant’s reliability and veracity, and complimentary information that will allow the justice to test the informant’sreliability. That includes both corroborating evidence independently collected by peace officers, and whether that informant haspreviously proven reliable: R. v. Caissey, 2007 ABCA 380 at para. 22, 299 D.L.R. (4th) 432; R. v. Koppang, 2004 ABCA 334 at para. 7,357 A.R. 383; Debot at para. 17 (Ont. C.A.); (

c) the mechanisms and foundation on which the informant based their information: Pastro at para. 60. In particular, the justice willwant to know whether the informant obtained the information through personal observation, rumour, or second-hand: ibid.; Debot atpara. 17 (Ont. C.A.); (

d) the means by which the informant came into possession of the information: Pastro at para. 60; (

e) the “age” of the information: Caissey at para. 25; R. v. Hosie (1996), (ON CA), 107 C.C.C. (3d) 385 at para.14, 91 O.A.C. 281 (Ont. C.A.); (

f) the amount of detail that the informant provides, particularly where details help test whether the alleged facts are rumour orgossip: Caissey at paras. 24-25; Hosie at para. 14; Debot, at para. 17 (Ont. C.A.); and (

g) whether the informant has a criminal record and the nature of the that record: R. v. Sutherland (2000), (ONCA), 52 O.R. (3d) 27, 139 O.A.C. 53 (Ont. C.A.). 3. The most reliable basis on which the justice might confirm the information that the informant provides is where a peace officercan swear as to further investigation undertaken by that peace officer or others which confirms the informant’s data: Hosie at para. 15;Plant at para. 28; R. v. Wiley, (SCC), [1993] 3 S.C.R. 263 at para. 20, 158 N.R. 321; R. v.

Caissey, 2007 ABCA 380 atpara. 25, 299 D.L.R. (4th) 432, affirmed 2008 SCC 65, [2008] 3 S.C.R. 451; Koppang at para. 7; Debot at 1168 (S.C.C.). 4. The peace officer who provides the Information must attribute the source, if any, from which the information was received.Otherwise, the opening words of the usual Information where the deponent states that they have “personal knowledge” is meaningless:Hosie at para. 27. 5. The peace officer must think about the statements being sworn.

The habitual and careless use of “boilerplate” language, without aproper understanding of its meaning, application and effect, may be misleading: Araujo at para. 47; Hosie at para. 31. 6. Full and frank disclosure of facts requires disclosure of both those facts that favour the granting of the search warrant and thoseagainst: Morelli at para. 58; Ling at para. 38. 7. The peace officer seeking the search warrant should give some thought into obtaining an Information from each peace officerwho has first-hand knowledge of the facts that would support the justice issuing the search warrant: Araujo at para. 48-49.

8. An Information may be misleading, without being intentionally misleading, and a Information deponent should be sensitive tothat possible effect: Morelli at para. 59. [75] In addition to these criteria, it should be noted and emphasized that the courts do not require precision in the drafting of anInformation, provided the imprecision does not lead to a misstatement or result in evidence that would be misleading: Plant at para. 30;R. v. Carrier (1996), 1996 ABCA 145 , 181 A.R. 284 at para. 72, 36 C.R.R. (2d) 310 (Alta. C.A.). [76] How do these principles apply to the ITO and Warrant? Cst.

Lebel relied heavily on the information that Cst. Ernst providedto her. She did not accurately attribute the information contained in the ITO to Cst. Ernst. Although no evidence was provided to indicatethe number of Informations that Cst. Lebel had previously prepared, it was clear from her testimony that she had not prepared many. Shewas, comparatively, a relatively new peace officer, having been a member of RCMP for three and one-half years when she prepared theITO. Her conduct shows she was sensitive to her inexperience. She ensured that Cst. Ernst and Cpl.

Bouvier checked her work before shefaxed it to the hearing office in Edmonton. [77] The ITO contains 28 paragraphs. Of those paragraphs, 16 relate to the facts that provide the foundation for the ITO. Thosebreak down into 11 paragraphs that describe Informant “A” and the information that Informant “A” provided to Cst. Ernst. Nine of thoseparagraphs relate to information that Informant “A” provided to Cst. Ernst in 2007 and 2008, significantly before the date the ITO wasprepared. Cst. Lebel testified that the RCMP did not follow-up on this information by surveillance or other investigations.

In other words,the RCMP did not confirm any of the information that Informant “A” provided. Only one paragraph described comparatively ‘fresh’information about the accused and his drug-related activities; a tip that Informant “A” provided 72 hours before Cst. Lebel prepared theITO. [78] Many of the statements contained in ITO para. 3 are conclusory without supporting evidence. Those statements in thatparagraph that are not conclusory have no justification or corroboration. These conclusory and unsupported statements are particularlytroubling because Cst.

Lebel had no personal, actual knowledge of the facts to which she had sworn. In other words, even if she were topresent the ITO personally to a justice, and that justice posed questions that required substantive or amplification responses, Cst. Lebelwould not have been able to provide a useful answer. That is precisely what occurred during the voir dire. Many times, she responded bysaying that “Cst. Ernst would have that information” or “you will have to ask Cst.

Ernst.” [79] With respect to Informant “B,” the ITO para. 14 says the following: Informant “B” is a confidential source who provided information to the Bonnyville RCMP on one occasion. Informant “B” is of anunknown reliable source and is a member of the community who expressed concerns about the drug dealers in the Town of Bonnyville.The information provided has not been acted upon, but believed to be true as it has been verified through other sources and is consistentwith other information received. Informant “B” is not being paid for giving information. Informant “B” has [redacted].

Informant “B”’sinformation is based on personal knowledge, which I define as the following: i Informant “B” spoke to the person ii Informant “B” overheard a conversation with the person iii Informant “B” saw items described [80] Many of this Court’s concerns about Informant “A” also apply to Informant “B”. The information that Informant “B”provided to Cst. Ernst is old, and was not the subject of RCMP action or investigation. Cst. Lebel testified that the only other source whoconfirmed the information provided by Informant “B” was Informant “A”.

Neither informant’s information had been confirmed byfurther RCMP investigation. [81] Although much of the information provided by Informant “A” and Informant “B” was not of a comparatively recent origin,that data still could provide a useful basis for a search warrant had Cst. Ernst sworn to the contents of the ITO. Cst. Lebel simply couldnot confirm this information, even though she swore that she had “personal knowledge” of the relevant facts. When reviewing an ITO,the JP could not, in these circumstances, directly test Cst. Lebel’s reliability, the reliability of Cst.

Ernst, the actual source for much ofthe ITO substance, or probe the reliability of either Informant “A” or Informant “B” with other information in the ITO.

[82] Another concern is the presence of much “boilerplate” language in the ITO. The language that causes this Court the mostconcern is the opening paragraph in which Cst. Lebel says that she has “personal knowledge” of the information in the ITO. Clearly, shedid not, and admits that is the case. This

preamble continues. Cst. Lebel swears that if she does not have personal knowledge but relaysinformation from another person, then she believes those statements of other persons to be true. Cst. Lebel does not, however, indicate anexample of that, even though almost all the substantive information in the ITO is not her personal knowledge, but rather that of Cst.Ernst. [83] The most troubling aspect of this ITO is that the RCMP did not conduct any further investigation into the allegations thatInformant “A” and Informant “B” provided to them.

As mentioned earlier, this is the best way for the RCMP and the justice to evaluatethe reliability of the information that third party informants provide. Furthermore, this is information that might speak in favour of thejustice not issuing the warrant. As such, it must be disclosed. [84] As is typical when peace officers obtain search warrants, this was an ex parte application. Thus, the peace officer swearingthe Information is required to provide disclosure that is both full and frank. The fact that Cst.

Lebel did not have personal knowledge ofmany of the facts to which she swore is not simply a drafting error; that misstatement goes to the heart of the ITO. Furthermore, theRCMP did not take steps to test the reliability of the information that Informants “A” and “B” provided, which could provide a basis forthe justice to evaluate the reliability of those informants. [85] Informant “A” and Informant “B” provided significant detail in the information they provided, such as where the accusedlives, the name of the accused’s son, and the vehicle that the accused drives.

These details are particularly relevant for the informationthat Informant “A” provided about 72 hours before the RCMP exercised the Warrant. [86] There are many facts that would have been very relevant and helpful: what is the basis of the informant’s knowledge, howmany warrants have been issued based on the informant’s tips, how successful were the police in recovering the items to which theinformants had referred, how accurate was their information, who verified the information, was it verified through police investigation?These are only a sample of the indicia of reliability (or unreliability) that Cst.

Lebel might have included in the ITO. Or, better still, Cst.Ernst could have prepared his own Information based on the information he had received. Alternatively, Cst. Ernst could have presentedthe information to the justice through a telephone application. 3. The Warrant [87] The accused argues that the wording in the Warrant that describes the items that Cst. Lebel expected to find while conductingthe search was too vague and too general, which illustrates her carelessness in drafting the documents and seeking the Warrant in the firstplace.

He specifically refers to her reasonable grounds for believing that she would find “scales, scoresheets ... and drug relatedparaphernalia” in the accused’s home. [88] In Lubell (Re) (1973), (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C. J.), Zuber J. said: 4 ... [O]ne has to remember that at this stage the authorities are still at an investigative stage in their procedure and by virtue of thatfact are likely not able to name the things for which they are looking with precision.

A search warrant is not intended to be a carteblanche, but at the same time the applicants must be afforded a reasonable latitude in describing the things that they have reasonableground to believe they might find. ... 5 ...

It may be that in a given case where it would be extremely difficult to envisage why certain things should be searched for, itmight be necessary to spell out the reasons but, in my opinion, where the connection between the items sought and the offence is one thatmight be gathered easily by inference from the very nature of the offence and the material sought, the informant is not obliged tounderline the obvious. This Court agrees with that statement. Cst. Lebel listed items and materials that would logically be present if the accused was engaged inthe alleged illegal activities.

4. Totality of the Circumstances [89] The onus is on the accused to establish, on balance of probabilities, that the RCMP have infringed his Charter rights: R. v.Collins, (SCC), [1987] 1 S.C.R. 265 at 277-78, 38 D.L.R. (4th) 508; R. v. Luong, 2000 ABCA 301 at para. 9, 271 A.R.368. With respect to the Warrant itself, courts have held that a warrant is presumed to be valid: R. v. Campbell, 2010 ONCA 588, 261C.C.C. (3d) 1 at para. 45.

With the exception of the wording of the Warrant, the accused does not challenge the validity of the Warrantitself. [90] Thus, the question in this case is whether the accused has established that the JP had no basis to authorize or issue theWarrant in the first place. Without that basis the Warrant would be invalid: Quebec (A.G.) v. Laroche, 2002 SCC 72 , [2002] 3S.C.R. 708 at para. 68, 219 D.L.R. (4th) 723; Garofoli at para. 62.

If the accused is able to establish this, the burden then shifts to theCrown to show that the warrantless search was, on a balance of probabilities, reasonable: Collins at para. 33, Quebec (A.G.) v. Larocheat para. 68. [91] A warrantless search is prima facie unreasonable: Canada (Director of Investigation & Research, Combines InvestigationBranch) v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145 at para. 30, 11 D.L.R. (4th) 641. [92] While undertaking this analysis, courts must look at the totality of the circumstances and not “lose the forest for the trees.” InLing at para. 36, the court, referring to an earlier decision of that court involving a marijuana grow operation, R. v. Nguyen, 2007 BCCA264, 241 B.C.A.C. 244 said: 36 The confidential source who provided the critical tip was a fellow police officer of the officer completing the ITO. That fact wasnot disclosed in the ITO although the existence of the source and his information was.

The trial judge found no grounds for quashing thewarrant. Madam Justice Saunders, for the Court, repeated without criticism this portion of the trial judge's reasons dealing with hisreview of the ITO: [9] In conducting this review, it is not appropriate to conduct a microscopic analysis of the affidavit. Rather, I must examine thetotality of the circumstances. Nor is it necessary for the affiant to disclose all of the information in the hands of police nor need theaffiant disclose every fact which might possibly be relevant.

The obligation is on the affiant to make a full, fair and frank disclosure. [Citations excluded]. [93] The Newfoundland and Labrador Court of Appeal used stronger language in R. v. Saunders, 2003 NLCA 63, 181 C.C.C.(3d) 268. In that case, the court found that the trial judge “deconstructed” every paragraph in the Information and provided an exampleof such deconstruction.

It said: 11 Unimportant in itself, the foregoing is an example of how the trial judge engaged in a critique of the information to obtain –almost as if he were correcting a student's term paper – and not an assessment of the sufficiency of the information in the "totality of thecircumstances". The approach taken by the trial judge was like that of a person who views a painting square centimetre by squarecentimetre to identify defects – which has its place – but then fails to step back and view the painting as a whole. See also R. v.

Schindler, 2001 ABCA 22, 277 A.R. 98 at para. 17; Morelli at para. 129. [94] What is it, then, that will allow a justice to issue a warrant? In Araujo, the Supreme Court of Canada phrased the question as: 51 In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simplywhether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.

As the Alberta Court of Appeal stated in Caissey at para. 23, the reviewing court does not require a guarantee that the informant is telling the truth. [ 95 ] However, the reviewing court still must undertake a rigorous review of the Information that was before the justice to determine whether, in the totality of the circumstances, there existed reasonable grounds.

This includes an inquiry into the source and reliability of the information found in the Information, which takes us back to the earlier discussion under the heading “Grounds for Belief.” [ 96 ] As the Supreme Court stated in Southam Inc. at para. 43 : ...

The state's interest in detecting and preventing crimes begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. ... [ 97 ] Here, when we test the information contained in the ITO against the criteria outlined in Debot (S.C.C.) in reverse order, we find, the information was not corroborated by police investigation prior to making the decision to conduct the search. Second, we do not know whether the sources outside the police were credible, because the person who had contact with the sources, Cst.

Ernst, did not provide that information to Cst. Lebel. Finally, we do not know how compelling the information from the ITO itself was in predicting the commission of a criminal offence because of the failure of the police even to attempt to obtain corroborative evidence through investigation. As a consequence the JP had no information that would allow him to test the credibility of Informant “A” or Informant “B”. 5. Review of JP’s Decision to Issue the Warrant [ 98 ] The standard of review of the JP’s decision is that set forth in Garofoli , supra .

What is the record that this Court must review when conducting its analysis? Morelli at para. 5 tells us that the way in which to analyze this case is to remove the portions of the ITO that are questionable and then determine, in the totality of the circumstances, whether what remains would have been sufficient for the JP to issue the Warrant: see also R. v. Cheng , 2010 BCCA 135 at para. 26 , 285 B.C.A.C. 108 , leave refused [2010] S.C.C.A.

No. 213. [ 99 ] To be Charter -compliant, Southam Inc. at para. 43 , told us that the minimum standard for authorizing a search and seizure, must be “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search.” If we excise the information contained in the ITO where Cst. Lebel did not have direct contact with either Informant “A” and Informant “B” and, in particular, the information contained in ITO para. 3, which was all provided by Cst.

Ernst, there is little left in the ITO on which the JP could have issued the Warrant. [ 100 ] There might be one saving provision.

Even though this Court might be overly “deconstructing” ITO para. 2, it reads as follows: That I am presently involved in an investigation into activities of Royce Andrew HATTON, hereinafter referred to as HATTON, concerning violations of Section 5(1) and Section 5(2) of the Controlled Drugs and Substance [ sic. ] Act and in such capacity have access to and have reviewed the files and reports of other members of this police force who have been involved in this investigation, and that the information received from them and referred to herein as based upon these files and reports and/or conversation [ sic. ] with them, and believe that information to be accurate.

This paragraph is not elegantly drafted. Arguably, Cst. Lebel was referring to Cst. Ernst when she said “conversation with them” and that the information contained in the ITO was based on that conversation. That might have the effect of saving the ITO and providing at least some of the direct information for which this Court is looking. The difficulty, however, is that the paragraph itself says, “the information received from them and referred to herein as based upon these files and reports and/or conversation with them” [emphasis added]. There is nothing in the ITO which says that Cst.

Lebel based her information on her conversation with Cst. Ernst. This is not a drafting error. It goes to the heart of the ITO.

[101] Can one police officer rely on another police officer to arrive at reasonable grounds? In R. v. Richter, (SKCA), [1994] 7 W.W.R. 753, 120 Sask. R. 257 (C.A.), the Saskatchewan Court of Appeal agreed with the trial judge’s approach whichwas: 5 A Justice of the Peace receiving such details could be expected to feel some confidence in the credibility of the police informant,as could the police officer who based his reasonable grounds for belief upon these details. I find that the Search Warrant is valid. Cst. Lebel, therefore, did not commit a fundamental error when she relied on Cst. Ernst. [102] Cst.

Lebel testified she “was quite confident” that Cst. Ernst reviewed the ITO before she faxed it to the hearing office. This istroubling, because Cst. Ernst, who presumably had direct contact with Informant “A” and Informant “B”, could provide Cst. Lebel withthe information necessary to satisfy the Debot criteria. He did not. Nor did he provide that information to Cst. Lebel when he reviewedthe ITO, if he indeed reviewed it. If he did not review the ITO, Cst. Lebel would be negligent in not having Cst. Ernst review it. [103] In R. v.

Hillgardener, 2010 ABCA, 252 C.C.C. (3d) 486, the Alberta Court of Appeal said: 21 The trial judge did not say what followup investigation might have corroborated the credibility of what the tipster had told theofficer. Nor did he relate the fact that the informer had been reliable on multiple occasions ... Later it said: 22 ...

The issue in this appeal is not whether the officer could have done more but whether the trial judge erred in law in applyingthe Debot test to what the officer knew and did. [104] In the case before the Court, the lacunae is in the lack of detail that would indicate that the informants are reliable or truthful.An example of the type of detail that Cst. Lebel (or, preferably, Cst. Ernst) could have provided is outlined in Saunders at para. 12,where the court provided chronological retrospective of what was in the Information.

One such example is: Source "A" had been a confidential source to the police for 10 years and to the particular policeman who swore the affidavit for a periodof 1 year and 10 months. Information he had provided in the past "has been corroborated by other means" (what means are unstated). Hehad provided information on the drug trade; 12 searches leading to 11 seizures had resulted from information he had provided. [105] This is the type of detail that was missing from the ITO.

As well, the RCMP could have conducted surveillance, to confirmthat the accused lived at the residence stated in the ITO, to observe people coming and going from that residence and to observe thecomings and goings of the accused. They could have interviewed the individuals to whom the accused was selling drugs and they couldhave attempted to wiretap the accused’s telephone. None of this was done, despite the fact that the RCMP had informant information fortwo years before the Warrant issued. 6.

Conclusion [106] There are many cases from every level of court in this country, that consider the requirements necessary for a peace officer toobtain a search warrant with an Information. Although each case is different, there are certain features that arise time and again.Strangely, peace officers continue to make the same mistakes. [107] Neither this Court nor any other court in this land should countenance mistakes that peace officers can easily avoid. Whetherdue to carelessness, negligence, ignorance, laxity or laziness, certain defects appear far too often.

Preparation and issuance of a searchwarrant pursuant to an Information requires care and thought. The absence of either can result in the evidence for which an officer

prepared the Information being excluded. [108] Exclusion of evidence collected under a defective warrant often represents loss of critical evidence for which the Informationdeponent and other members of the police force have laboured long and hard. Crown counsel, peace officers and the public becomeangry with the courts, and criticize the courts’ application of the Charter. This is sometimes described as a criminal being released “on atechnicality.” [109] That criticism is misplaced; neither the courts nor the Charter cause this problem. The peace officer who prepared theInformation is to blame.

The Supreme Court of Canada has provided clear and flexible guidelines on the necessary elements of anInformation. Broadly, those instructions can be reduced to a simple maxim: tell the judge what you believe that your search will find,and then explain to the judge honestly and objectively why you believe that is what will be found. [110] Stripped of its defects and deficiencies, this Court finds that the ITO was insufficient to permit the JP, acting reasonably, tofind adequate grounds for the issuance of the Warrant.

Thus, because the JP should not have issued the Warrant, the subsequent searchviolated Charter s. 8 and the Crown cannot rebut the presumption of an unreasonable warrantless search. C. Charter s. 24(2) 1. Introduction [111] Inasmuch as this Court has found that the RCMP officers breached the accused’s Charter rights, it must determine whether,pursuant to Charter s. 24(2), the Court should exclude the evidence that they found. In other words, would the admission of the evidencebring the administration of justice into disrepute? [112] Charter s. 24 provides: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [113] To conduct this analysis, we must turn to the lines of inquiry that the Supreme Court of Canada provided us in R. v. Grant,2009 SCC 32, [2009] 2 S.C.R. 353.

Grant said: 71 ...When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidenceon society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interestsof the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of thecase on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determinewhether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute ... [114] While this Court is undertaking its Charter s. 24(2) analysis, it must be mindful of the fact that it is the accused who mustprove on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute: R. v.Sandhu, 2011 ONCA 124 at para. 42, quoting R. v. Duarte; R. v.

Sanelli, (SCC), [1990] 1 S.C.R. 30 at 59, 65 D.L.R.(4th) 240.

1. Seriousness of the State Misconduct [115] The majority in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 353, said that when a court attempts to determine theseriousness of the state misconduct: 23 ... The metaphor of a spectrum used in R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), perDoherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor: Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard forCharter rights. ...

What is important is the proper placement of the police conduct along that fault line, not the legal label attached to theconduct ... [116] Similarly, in Grant, the court said: 74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtainedthrough inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other end ofthe spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effecton the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [117] Courts that have considered this aspect of the Grant analysis, describe the level of seriousness of state misconduct that wouldtend to support the exclusion of the evidence as: · wilful or reckless disregard for Charter rights: ibid.; Harrison at para. 24; · severe or deliberate, Grant at para. 72; · significant carelessness: R. v.

Dhillon, 2010 ONCA 582 at para. 51, 270 O.A.C. 107; · systemic or institutional abuse: Harrison at para. 25; and · blatant or flagrant disregard for Charter rights: Grant at para. 75; Harrison at para. 27. [118] Specifically with respect to the preparation of an Information, courts describe the level of seriousness of state misconduct thatwould tend to support the exclusion of the evidence as: · unacceptable police conduct (in relation to the preparation of an Information): Morelli at paras. 102-103; and · absolutely no basis in the Information for the stated belief: R. v.

Kelly, 2010 NBCA 89 at para. 48. [119] On the other hand, the court in Grant went on to say: 75 ... "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith ... [Citations excluded.] [ 120 ] This Court does not find that Cst. Lebel was acting in bad faith when she prepared the ITO. She relied on the information that Cst. Ernst provided to her. She might have been careless, but not significantly so. Sh

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