R. v. Karim, 2012 ABQB 470

Court of Queen ’ s Bench of Alberta Citation: R. v. Karim, 2012 ABQB 470 Date: 20120720 Docket: 060508074Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Mohamed Ali Karim and Robert Elliot Deer Accused Restriction on Publication Identification ban – See the Criminal Code ,

section 486.5. By Court Order, information that may identify any of the undercover officers in this case must not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. NOTE: This judgment is intended to comply with the restriction so that it may be published. Corrected judgment: A corrigendum was issued on July 26, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment.

Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Decision on Voir Dire Honourable Madam Justice E.A. Hughes _______________________________________________________ I. Introduction [ 1 ] On January 16, 2006 Jack Beauchamp was shot to death in his downtown Calgary office shortly before 8:00 a.m.

A homicide investigation began almost immediately into his death and before 9:00 a.m. that morning, the Calgary Police Service (CPS) had the name, “Bob Deer”, as a possible suspect. The homicide investigation began to focus on Mr. Deer and as a result of information the police obtained, Mr. Deer was arrested at 11:20 a.m. outside of his home for uttering threats to Mr. Beauchamp. [ 2 ] At approximately noon that day, Det. Jennings began to draft an Information to Obtain (ITO) a search warrant for the search of Mr. Deer’s home and motor vehicle.

A Justice of the Peace granted the search warrant at 6:33 p.m., and a search of Mr. Deer’s home and vehicle began later that evening and concluded the following day. [ 3 ] Mr. Deer alleges his arrest and subsequent detention until the morning of January 17, and the search of his home and vehicle breached a number of his rights under the Charter of Rights and Freedoms . As a result of the alleged breaches, Mr. Deer seeks the exclusion of numerous pieces of evidence. II.

Chronology of Events [ 4 ] At the outset of any homicide investigation, many police officers are responsible for various investigative tasks, which means many investigative steps are occurring at the same time. Both Charter applications of Mr. Deer challenge the reasonable grounds of the police to take the investigative steps they did: the arrest of Mr. Deer and the search of his home and vehicle. In addition, Mr. Deer alleges the ITO did not provide full and frank disclosure as required at law. Thus, to my mind, it is key to set out who knew what information, at what time, in assessing these applications.

Attached as Appendix A to my decision is a Chronology of Events I have compiled from the evidence in the voir dire , which are findings of facts. [ 5 ] There are discrepancies in the evidence, but I find the vast majority of them are attributable to the passage of time. This is not surprising in a re-trial that occurs six years after the homicide itself. A not uncommon example of the sort of discrepancy I am referring to is as follows: Det. Utigard was asked in cross examination:

Q Now, you and Detective Jennings were in touch with the SFU, the Strike Force Unit, in an attempt to locate Mr. Deer. A Jennings was for sure. I don ’t have any note that I was. I don ’t believe I was . [Emphasis added.] Q Did you discuss with Detective Jennings that he should contact strike force? A Yes, or often people will just offer. I mean, it’s not like you direct people, "You do this," but he may have offered, and that was his task. Q Right. Well, there had to be some discussion because Detective Jennings wouldn’t know what you were thinking, right? A Yes, there was discussion. Q Sure.

And after that discussion, then, your indication is Detective Jennings then contacted strike force. A Yes. Q Okay. And I think you discussed with my friend already that it was at 11:15, approximately, that you directed the arrest of Mr. Deer; is that right? A Well, just before that probably, but that’s when he was arrested. Q Yeah, a couple minutes beforehand. A Yes. Q Okay. And did that request go from you to Jennings or from you to strike force? A Through Jennings. Det. Jennings testified as follows on this same issue: Q ...

Sergeant, with respect to your involvement in this matter, I’m given to understand that you were asked by Detective Matthews or, sorry, Acting Staff Sergeant Matthews at the time, at 8:50 AM on January the 16th, 2006, to arrange Strike Force and Tac Units to be deployed at [...] Mount Douglas Point South East to apprehend Mr. Deer and arrest him for a charge of threats. ... A Yes, sir. I recall it was around 9 AM but that -- the entirety of that statement isn’t accurate.

I was asked to be the liaison to Strike Force and to get them deployed at that address, but there was no direction to effect any arrest at that point. A ... -- in my notes at 1108 hours on January 16th, there is an entry that says "IAP pass on to support." And that’s an immediate action plan that since I was the point of contact for the Strike Force Unit and in turn to the Tactical Support Unit, I was asked to relay the decisions of the investigative team to those units. Now, at 1108 hours that morning, what I was instructed to pass on was that Mr.

Deer was to be arrested for threats, and that’s what I passed on to Strike Force and they in turn passed on to the tactical unit. It was my belief that that was all that we had the grounds for, for the remainder of the day, as far as charges went. [ 6 ] In this example, I have accepted the specific evidence of Det. Jennings where his evidence differs with Det. Utigard’s

evidence because he was the officer directly responsible for the task, while Det. Utigard was not. In each case, unless otherwise specified, I have accepted the specific evidence of the officer who was tasked with a specific investigative responsibility over the evidence of other officers who received the information if the evidence differs. III. Issues [ 7 ] The issues and subissues before me in this application are as follows: 1. Issue #1 : Did the arrest and subsequent detention of Mr. Deer violate his

section 7 , 8 or 9 Charter rights? 1. Subissue #1: Did the police have reasonable and probable grounds to arrest Mr. Deer for uttering threats to Mr. Beauchamp? 2. Subissue #2: Did the arrest of Mr. Deer for murder make the prior lawful arrest unlawful? 3. Subissue #3: Did the intention of the police to continue the investigation on both the threats offence and the murder offence after Mr. Deer ’s arrest, invalidate the initial arrest? 4. Subissue # 4: Did Mr. Deer ’ s detention during the cell shot constitute an arbitrary detention? 5. Subissue #5: Was the “ inventory ” search of Mr.

Deer ’ s wallet an unlawful search and seizure? 2. Issue #2: Did the search of Mr. Deer ’ s home and/or motor vehicle violate his

section 8 Charter rights? 1. Subissue #1: Was there sufficient credible and reliable evidence to permit the issuing justice to authorize the warrant? a. Sub-subissue #1: Erroneous Information b. Sub-subissue #2: Material Non Disclosure c. Sub-subissue #3: Reasonable and Probable Grounds d. Sub-subissue #4: Search of the Computers e. Sub-subissue #5: The Search Warrant was over broad 2. Subissue #2: Was the search unreasonable because the search warrant did not authorize a search at night? 3. Subissue #3: Did the failure to make a Report to Justice render the search unreasonable?

3. Issue #3: Should the evidence obtained in violation of s.8 of the Charter be excluded? 1. Subissue #1: The TD Canada Trust Withdrawal Slip 2. Subissue #2: The evidence seized pursuant to the Search Warrant and other derivative evidence IV. Law and Analysis Issue #1 : Did the arrest and subsequent detention of Mr. Deer violate his

section 7 , 8 or 9 Charter rights? [ 8 ] Counsel for Mr. Deer filed an Amended/Amended Application (A/A Application) that set out the alleged Charter violations and the facts counsel intended to rely on to support the application. The A/A Application formed the outline of counsel’s oral argument but counsel, quite properly, abandoned certain allegations in oral argument where the evidence did not support the allegations. My decision will track the issues raised specifically in the oral submissions of counsel. There are five sub-issues under Issue #1: 1.

Subissue #1: Did the police have reasonable and probable grounds to arrest Mr. Deer for uttering threats to Mr. Beauchamp? 2. Subissue #2: Did the arrest of Mr. Deer for murder make the prior lawful arrest unlawful? 3. Subissue #3: Did the intention of the police to continue the investigation on both the threats offence and the murder offence after Mr. Deer ’s arrest, invalidate the initial arrest? 4. Subissue # 4: Did Mr. Deer ’ s detention during the cell shot constitute an arbitrary detention? 5. Subissue #5: Was the “inventory ” search of Mr.

Deer ’s wallet an unlawful search and seizure? [ 9 ] If I find a breach or breaches, the evidence Mr. Deer seeks to be excluded is a TD Canada Trust withdrawal slip seized from the inventory search of his wallet, and Mr. Deer’s conversation in cells with an undercover officer. [ 10 ] The parties agree Mr. Deer bears the evidentiary burden to satisfy the court on a balance of probabilities there has been a breach of Charter right. Subissue #1: Did the police have reasonable and probable grounds to arrest Mr. Deer for uttering threats to Mr. Beauchamp? [ 11 ] To determine whether Mr.

Deer was arbitrarily detained, it is necessary to review both the Criminal Code offence Mr. Deer was arrested upon and the

section of the Criminal Code that allows an arrest without a warrant. [ 12 ] Mr. Deer was arrested without a warrant. Section 495(1) of the Code states:

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; ... [13] Mr. Deer was arrested for the offence of uttering threats.

Section 264.1 is the relevant

section and provides: 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; (

b) to burn, destroy or damage real or personal property; or (

c) to kill, poison or injure an animal or bird that is the property of any person. [14] The relevant elements of this offence are: i. Mr. Deer made a threat; ii. The threat was to cause bodily harm or death to Mr. Beauchamp; iii. Mr. Deer made the threat knowingly. [15] Section 495(1) required the police to have reasonable grounds to believe that Mr. Deer committed the offence of utteringthreats to Mr. Beauchamp before Mr. Deer could be arrested for this offence. [16] The Supreme Court of Canada in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at para. 17 set out the legal testto apply in determining whether a peace officer had reasonable grounds to arrest a person: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. [17] R. v.

Golub, (ON CA), [1997] O.J. No. 3097(C.A.) in considering this same issue held at para. 21: In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. Theofficer must take into account all information available to him and is entitled to disregard only information which he has good reason tobelieve is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), (SCC), 48 C.C.C. (2d) 34 at 56 (S.C.C.); R. v. Hall (1995), (ON CA), 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v.

Proulx (1993), (QC CA), 81 C.C.C. (3d) 48 at 51 (Que. C.A.).

[ 18 ] Det. Utigard made the decision to have Mr. Deer arrested. His evidence must be analysed to determine whether he had the subjective grounds for directing the arrest of Mr. Deer for uttering threats to Mr. Beauchamp. The information before Det. Utigard was: • Det. Utigard, was called in by S/Sgt. Matthews at 8:50 a.m. and was given the name “Bob Deer” as a suspect in the murder investigation of the death of Jack Beauchamp. • Det. Utigard was assigned as the primary investigator into the death of Mr. Beauchamp, meaning he had overall responsibility for the case from “start to finish”. • Det.

Utigard received information from co-workers of Mr. Beauchamp at Morbank Financial, Mr. Beauchamp’s wife and daughter, and the ex-wife of Mr. Deer, Tanis Deer, that Mr. Beauchamp had received, what he believed to be, threatening emails from Mr. Deer in relation to a business deal. • Mr. Beauchamp made a call in mid-December to the non emergency police line respecting the threatening emails. • When asked what his grounds for arrest where Det. Utigard testified: Well, I had enough specific information through the witnesses that Jack Beauchamp felt he had been threatened.

He had warned a number of his employees, even to the extent that, if something happens, this is what ’ s happened. This is where these emails are. He took the step of calling the Police Service. He even told his daughter Jennifer to be cautious going home. Like this was more than just a passive threat, in my opinion. [6] As a result of this information, Det. Utigard testified he believed he had the necessary reasonable grounds to arrest Mr. Deer for uttering threats to Mr. Beauchamp. The belief was also held by his fellow detectives and staff sergeant. After the decision to arrest Mr. Deer was made, Det.

Jennings was directed at 11:08 a.m. to advise the Strike Force Unit (SFU), who were working with the Tac team, to arrest Mr. Deer on the threats charge. [7] When I review the elements of the offence and Det. Utigard’s evidence, I find Det. Utigard held the requisite subjective belief to arrest Mr. Deer. [8] Did Det. Utigard have objective reasonable grounds to arrest Mr. Deer? In analysing this question, I must consider the fact Det. Utigard did not have the emails to read until after the arrest.

Thus, I must determine whether were there were objective facts from which a reasonable person could infer that the emails contained threats to cause harm to Mr. Beauchamp. [9] The evidence establishes that Det. Utigard knew: • There was a business relationship between Mr. Deer and Mr. Beauchamp. • Mr. Deer sent Mr. Beauchamp emails in relation to this business relationship. • Mr. Beauchamp told his co-workers he received threatening emails from Mr. Deer.

• Mr. Beauchamp called the police non emergency line about the emails. • Mr. Beauchamp warned his employees about Mr. Deer. • Mr. Beauchamp told his daughter to be cautious going home. [7] From this information, I find a reasonable person could infer that the emails were perceived by Mr. Beauchamp asthreatening to cause some sort of harm to him. If it was not some sort of harm, why else would he warn his daughter and co-workers withrespect to Mr. Deer? The evidence as a whole satisfies me there were the requisite objective grounds for the arrest of Mr.

Deer. [8] In conclusion, I find the evidence establishes that Det. Utigard had both the subjective and objective grounds upon which hecould instruct other officers to arrest Mr. Deer. Subissue #2: Did the arrest of Mr. Deer for murder make the prior lawful arrest unlawful? [9] After Mr. Deer was arrested for uttering threats, he was transported by Detectives Lang and Mercer to an interview room on the 10th floor of the Andrew Davison Building; the 10th floor held the offices of the Homicide Unit. At 12:38 p.m., Det. Utigard advisedMr. Deer he was arresting him for the murder of Mr.

Beauchamp and advised him of his right to counsel. Mr. Deer exercised his right tocounsel between 12:55 p.m. and 1:26 p.m. [10] Det. Utigard testified that at the time he arrested Mr. Deer for murder, he did not have the requisite reasonable and probablegrounds for the arrest. He also testified that “really he [Mr. Deer] should be at least chartered and cautioned ...” for the murder. Thequestion arises: did this arrest for murder make the prior lawful arrest, unlawful? To my mind the answer is no. Rather, Mr. Deer, waslawfully arrested for the threats and Det. Utigard “by arresting” Mr.

Deer was complying with his Charter duty to inform a detainedperson of the true extent of his or her jeopardy. See R. v. Black, (SCC), [1989] 2 S.C.R. 138; R. v. Evans, (SCC), [1991] 1 S.C.R. 869. [11] I rely on the reasoning of the Court of Appeal in R. v. Nelson 2010 ABCA 349 to support my conclusion. In Nelson, the policein the course of a murder investigation came to believe Mr. Nelson, his brother or a friend was the shooter. The police investigation alsodetermined that Mr. Nelson was involved in some fights prior to the shooting. The police learned Mr.

Nelson was about to leave thejurisdiction so went to the Edmonton International Airport and arrested him for assault. Once he was at police headquarters, Mr. Nelsonwas re-arrested for murder although the officer did not have reasonable grounds to do so. Mr. Nelson was questioned and ultimatelyconfessed to being the shooter. [12] On appeal, the court was asked to find the trial judge erred in not finding a Charter breach when the officer re-arrested Mr.Nelson for murder without reasonable grounds.

The court held at paras. 26 and 27 as follows: [26] The detective testified that he advised the appellant that he was under arrest for murder to bring home to the appellant the fulljeopardy he faced when he was questioned. The trial judge accepted the detective’s evidence on this point. Presumably the appellantadvised his counsel that he was facing murder charges, and the counsel presumably provided advice with charges of murder in mind.Since, at latest, the Supreme Court’s decision in R. v. Smith, [1991] S.C.R. 714, s. 10(

b) of the Charter has been interpreted as requiringpolice to generally inform persons being questioned of the jeopardy the person faces. This enables the person to make an informeddecision regarding whether to speak with counsel and obviously enables counsel to tailor the advice given to meet the circumstances ofthe real jeopardy.

If the police initially arrest a person for one charge, but then change the focus of their investigation towards a differentand unrelated offence, or a significantly more serious offence, the police are required to advise the person of that change of focus and tore-state the person’s right to counsel: R. v. Evans, [1991] S.C.R. 869; R. v. Black, (SCC), [1989] 2 S.C.R. 138. [27] In our view, a person is not arbitrarily detained when they are arrested for a second offence while already under lawful detentionrespecting another charge.

We conclude that the appellant was not arbitrarily detained under s. 9 of the Charter. We also conclude that

althought it would have been preferable that the detective waited to arrest the appellant for murder until after the detective hadreasonable and probable grounds, no harm was done. The arrest for the murders left the appellant with full knowledge of the crimes thepolice suspected he had committed and that he would be questioned with respect to those crimes. In R. v. Sinclair, 2010 SCC 35 at para32, the Supreme Court noted that, in the context of a custodial detention, the purpose of s.10(

b) of the Charter is to support thedetainee’s right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the“situation” he is facing. In this case there is no doubt that the appellant knew the situation he was facing and was able to get adviceregarding that situation before he was questioned by police. Subissue #3: Did the intention of the police to continue the investigation on both the threats offence and the murder offence after Mr.Deer’s arrest, invalidate the initial arrest? [13] Mr.

Deer submits that the uttering threats arrest was made to further the murder investigation and not the uttering threatsinvestigation. The arrest was a ruse and therefore, was for an improper purpose. [14] In R. v. Storrey the court addressed the issue whether it was improper for the police to have arrested the accused in order toput him in a line up. At paras. 25 and 28 the court held: 25 On the contrary, it has long been the rule in Canada and the United Kingdom that the police can continue their investigationsubsequent to an arrest. The essential role of the police is to investigate crimes.

That role and function can and should continue after theyhave made a lawful arrest. The continued investigation will benefit society as a whole and not infrequently the arrested person. It is inthe interest of the innocent arrested person that the investigation continue so that he or she may be cleared of the charges as quickly aspossible. 28 An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation afterthe arrest. To repeat, in the case at bar the police had reasonable and probable grounds on which to base their decision to arrest theappellant.

Further, there was nothing improper about the police intention to continue their investigation of the crime after they had madethe arrest. Neither that intention nor the continued investigation made the arrest unlawful. The circumstances of the arrest of theappellant did not constitute an infringement of s. 9 of the Charter. [15] While the language of Storrey does encompass the facts before me, I note the Court’s comments were in relation to onecontinuing investigation, not two investigations albeit both with the same victim and the same suspect.

Nelson, which involved twodifferent offences arising out of the same melee, does not specifically address this issue but the reasoning in Nelson is consistent withStorrey. [16] There is authority that holds a police investigation of a second offence, while an individual is detained on a first offence, maybe justified. [17] The seminal case on this issue is Brown v. Durham Regional Police Force (1998), (ON CA), 116 O.A.C.126 (C.A.). In that case, the Durham Regional Police Force set up checkpoints on roads that led to a property owned by a member of theParadise Riders Motorcycle Club.

Sixty-five officers set up the checkstops and asked all motorists wearing club garb to produce theirlicence, proof of ownership and insurance documents. Members of the club brought a lawsuit alleging their s. 9 rights were breached.Durham police relied on the Ontario Highway Traffic Act as providing authority for the checkstops and subsequent detentions. [18] Doherty J.A. held that when police have a legitimate purpose to stop and detain a vehicle, they may take that opportunity toexplore another legitimate police interest so long as that purpose is not improper.

Commenting on Storrey, Doherty J.A. added at para.33: The reasoning in Storrey is equally applicable where the police intend, within the confines of the stop and detention authorized by s.216(1) of the HTA, to avail themselves of the opportunity to further some other legitimate police interest: See also R. v. Annett (1984), (SCC), 17 C.C.C. (3d) 332 (Ont. C.A.); leave to appeal to S.C.C. refused, (1985), 17 C.C.C. (3d) 332n (S.C.C.).

[19] Doherty J.A. described improper police purposes as follows at para. 39: When I refer to improper police purposes, I include purposes which are illegal, purposes which involve the infringement of a person'sconstitutional rights and purposes which have nothing to do with the execution of a police officer's public duty. Officers who stoppersons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stopsomeone to vent their personal animosity toward that person, all act for an improper purpose.

They cannot rely on s. 216(1) of the HTAeven if they also have highway safety concerns when making the stop. See also R. v. Dhuna, 2009 ABCA 103. [20] The Supreme Court of Canada in R. v. Nolet, 2010 SCC 24 cited Brown with approval. The court stated at paras. 38 and 39: 38 In Brown v. Durham Regional Police Force (1998), (ON CA), 43 O.R. (3d) 223 (C.A.), the police used theOntario equivalent H&TA powers to stop and question bikers attending a gathering of the Paradise Riders Motorcycle Club, suspected tobe a criminal organization.

The police took advantage of the stop to gather information about the individuals and the gathering. DohertyJ.A., for the court, while upholding as valid the police conduct in that particular case, stated: While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stopto further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additionalimproper purpose.

Highway safety concerns are important, but they should not provide the police with a means to pursue objects whichare themselves an abuse of the police power or are otherwise improper. 39 Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates theCharter rights of an accused. This is a better framework of analysis, in my opinion, than the “predominant purpose” test applied here bythe trial judge. If the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes.

A validregulatory purpose, whether predominant or note, would not sanitize or excuse a Charter violation. [21] Based on the reasoning found in Storrey, Brown, and Nolet, I find that police may investigate a further or second offence, afteran accused is arrested on a first offence, so long as the further investigation was not for an improper purpose. [22] The relevant evidence on this issue comes from the cross examination of Detectives Utigard and Minello, as well as the factsthat underpin the arrest for the uttering threats charge. Det.

Utigard testified: Q And am I correct that when you spoke of this matter earlier, that you were of the view that the threats charge were not the charge thatyou -- the charges that you wanted? A Well, I guess as a police officer, you investigate all complaints; but specifically I was in the Homicide Unit, and we were investigatingthe murder of Jack Beauchamp. Q Right. Homicide was the charge that you were interested in. A Yes. Q Not the threats charge. A Well, I was interested in it, but it wasn’t the main thrust or the main focus.

Q It wasn’t the object of what you hoped to get. A It was a start, but it wasn’t what I wanted -- Q Okay. A -- to be the finish. Q Would it be fair to suggest that the threats charge was more a means to detain Mr. Deer? A Well, I think as an investigator you wait for opportunities to be able to take action, and Mr. Deer provided me with an opportunity to take some action. [ 23 ] Det. Minello’s testimony was as follows: Q...I gather you attended Arrest Processing shortly after Mr. Deer to monitor the cell shot that was being conducted; is that fair? A I recall being there for some of it. Q Right.

And this cell shot was in relation to the homicide investigation. A In relation to the totality of what was being investigated, everything that day. [ 24 ] In addition to the above evidence, the following facts were known to both detectives: • Mr. Beauchamp had been shot dead at his office just before 8:00 a.m. on January 16, 2006 • The police had information from Mr. Beauchamp’s co-workers and family that he had received what he perceived to be threatening emails in relation to a business deal with Mr. Deer. • Mr.

Beauchamp was sufficiently concerned about the emails to warn his staff, his daughter and call the police. [4] With these facts, there was a nexus between the two investigations in that the victim was the same victim, the suspect was the same person and Mr. Deer’s emails in the uttering threats investigation provided motive in the murder investigation. I find one of the purposes of the uttering threats arrest was to investigate the murder, but I do not find the arrest was a ruse nor for an improper purpose.

I make this finding based upon the facts that the victim was the same in both cases and the possible motive linked the two investigations. Subissue # 4: Did Mr. Deer ’ s detention during the cell shot constitute an arbitrary detention? [5] The evidence in the voir dire was that Mr. Deer was interviewed by Detectives Utigard and Minello; it appears the interview was for a period of approximately 12 hours, not including the time periods the police officers were absent from the interview room. The interview concluded at 5:28 a.m. on January 17, following which Det. Minello made arrangements for Mr.

Deer to be taken to the Arrest Processing Unit (APU). [6] During the evening of January 16 and into the early morning hours of January 17, arrangements were made for Mr. Deer to be placed into a cell with an undercover officer when he was brought to APU. Mr. Deer entered the cell at 6:09 a.m. where Cst. K., the undercover operator, had been placed earlier. The two shared the cell and spoke from time to time. At 6:43 a.m. Mr. Deer left the cell to go for fingerprinting and subsequently returned. At 9:58 a.m. he left and was taken before a Justice of the Peace who released Mr. Deer

on an undertaking to appear with conditions. [7] In Storrey, the accused was detained for 18 hours before the charge was laid. The evidence of the investigating policeofficer clearly indicated the delay was caused by the need to bring the victims to the police station to conduct an identification parade.The officer conceded that although he had the basis to arrest Mr. Storrey, he did not have sufficient evidence to warrant a convictionwithout further identification. He also agreed that if Mr. Storrey had not been identified, he would have been released.

The issue for thecourt was whether in the circumstances, the detention of Mr. Storrey for a period of 18 hours, primarily for the purpose of furthering thepolice investigation, constituted a breach of s. 9 of the Charter. [8] The court accepted that s. 503 of the Criminal Code does not give a police officer “an unqualified right to keep a person incustody for the purposes of investigation for a period of 24 hours before taking such person before a justice”. Instead, the

section statesthat the police must take a person in custody before a justice without unreasonable delay and 24 hours is simply the outer limit of thetime span. The court stated at paras. 32 and 33: 32 However, in the circumstances of this case the elapsed time was not unreasonable. It will be remembered that over six days hadelapsed from the time of issuing the bulletin for the appellant's arrest until the moment that the arrest was made. This is clearly not a casewhere the victim could, for example, be taken to the place of employment of the suspect to see if an identification could be made.

Anidentification parade seemed not only the fairest means of identification, but also the sole practical means of identification. Further, thevictims themselves lived outside the jurisdiction. It was necessary to make arrangements to bring them across the border to attend theline-up. It will be recalled that the appellant was arrested at 7:25 at night. It would be unlikely that the victims could be found andbrought to the line-up before the next morning. The appellant was brought before the justice immediately following the line-up whichwas held shortly after 1:44 p.m.

This was a little more than 18 hours after the arrest. 33 In R. v. Precourt (1976), (ON CA), 39 C.C.C. (2d) 311 (Ont. C.A.), Martin J.A. considered a somewhat similarfactual situation. In that case the accused was arrested for robbery at 4:30 p.m. He gave an exculpatory statement to the police at 11:30p.m. and was kept in detention overnight so that he could be placed in a line-up the next morning.

On these facts, Martin J.A. at p. 319stated: It could not be suggested that there was anything improper in the investigation conducted by the police on the evening of August 21,1973, with the apparent assistance of the appellant, or that the investigating officers were not justified in holding the appellant at thepolice station overnight with a view to placing him and [his co-accused] in a line-up the following morning. [9] In the end, the court found the delay was not unreasonable, nor offended s. 503 the Code or s. 9 of the Charter. [10] It appears from Storrey and subsequent cases on this issue, a court must examine the reasons for the delay.

The only directevidence on this point is Det. Minello’s evidence, set out above which, spoke of Mr. Deer being kept in custody so that the investigationscould continue by means of an undercover cell shot. Based on this evidence, I do not find the delay was unreasonable. Subissue #5: Was the “inventory” search of Mr. Deer’s wallet an unlawful search and seizure? [11] Det. Lang took custody of Mr. Deer from Cst. Going, a member of the Tac team who arrested Mr. Deer. Det. Lang alsoreceived from Cst. Going a clear plastic bag that contained personal property of Mr. Deer, including his wallet. [12] After Det.

Lang placed Mr. Deer in an interview room at the Andrew Davison Building, Det. Lang searched Mr. Deer’swallet. He testified the purpose of the search was to “...just itemize the items that were in [Mr. Deer’s] wallet”. Det. Lang described thisas his usual procedure so that in the event a person claimed an item was missing at a later date, he would be able to refer to his notes,where the all the contents itemized were listed, and advise whether the item was in fact present on the arrest date. One of the items listedin Det.

Lang’s inventory is a TD Canada Trust withdrawal receipt dated January 16, 2006 at 09:52 hours in the amount of $500.00.

[13] The Crown conceded Det. Lang’s inventory search was not a search incident to arrest and therefore was an unreasonablesearch. See Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158; R. v. Caslake, (SCC), [1998] 1 S.C.R.51. [14] I will consider whether this evidence should be excluded pursuant to s. 24(2) of the Charter in the last part of my judgment. Issue #2: Did the search of Mr. Deer’s home and/or motor vehicle violate his

section 8 Charter rights? [15] The sub issues under this issue are: 1. Subissue #1: Was there sufficient credible and reliable evidence to permit the issuing justice to authorize the warrant? a. Sub-subissue #1: Erroneous Information b. Sub-subissue #2: Material Non Disclosure c. Sub-subissue #3: Reasonable and Probable Grounds d. Sub-subissue #4: Search of the Computers e. Sub-subissue #5: The Search Warrant was Over Broad 2. Subissue #2: Was the search unreasonable because the search warrant did not authorize a search at night? 3.

Subissue #3: Did the failure to make a Report to Justice render the search unreasonable? [16] On January 16 at 6:33 p.m. a search warrant was issued by a Justice of the Peace for the search of Mr. Deer’s home andmotor vehicle. The search warrant authorized the police to search both places for: • shell casings • bullets • firearms • binder and loose papers • biological material • blood • date/time stamped receipts or documents • computers • yellow towels

[10] Items seized from the house and motor vehicle pursuant to the search warrant were a box of latex gloves, a Greyhound busticket, a Walmart receipt dated January 15, 2006, hair cuttings, a Walmart tag, a London Drugs receipt dated January 15, 2006, 22caliber ammunition, six 22 caliber ammunition rounds, a package of disposable razors, two computers, and a Calgary Parking Authorityreceipt dated January 16, 2006. [11] A search of one of the computers found emails from Mr. Deer’s computer to Mr.

Beauchamp, a calendar that includedappointments at Morbank Financial and dealings with “Mohamed”, and an Excel spreadsheet with payments to “Mohamed”. [12] Mr. Deer submits the search warrant should be quashed because:

i) there were not reasonable grounds to issue the warrant; ii) there were deficiencies in the ITO that include material non disclosure, erroneous information and/or misstatement of facts, nonexus between believing an offence had been committed and that evidence of a commission of the offence would be found on thepremises to be searched, and the warrant was overly broad; and iii) the warrant did not authorize a search of the contents of Mr. Deer’s computer [13] Further, Mr.

Deer submits that the search was unreasonable because the search warrant did not authorize a search at night,and no Return to Justice was made following the search and seizure of the items. [14] The Crown submits there is no basis to quash the warrant, nor does the evidence disclose any s. 8 breaches. [15] I will first set out the general legal principles relevant to this subissue and then analyse each specific sub-sub-issue. Subissue #1: Was there sufficient credible and reliable evidence to permit the issuing justice to authorize the warrant?

The Purpose of a Search Warrant [16] The search warrant was issued pursuant to s. 487 of the Criminal Code which provides that a justice may issue a searchwarrant if he or she is satisfied by information on oath, there are reasonable grounds to believe there is in a building, receptacle or placeanything that will afford evidence with respect to the commission of an offence. [17] The purposes of a search warrant were described in R. v.

Vu, 2011 BCCA 536, leave to appeal granted 2012 SCCA No. 94.The court observed at para. 29 that a search warrant may be used to “... obtain ‘evidence' of criminal activity ... [as well as] to gatherinformation to assist in the investigation of such activity.” Frankel J.A. writing for the court relied on Descôteaux v. Mierzwinski, (SCC), [1982] 1 S.C.R. 860, CanadianOxy Chemicals Ltd. v. Canada (Attorney General), (SCC), [1999] 1S.C.R. 743 and R. v. Canadian Broadcasting Corp. (1992), (ON SC), 77 C.C.C. (3d) 341 (Ont. Ct. Of Jus.(G.D.)) tosupport the above statement.

His reliance on the legal principles in the latter two cases are relevant to this case; at paras. 30 and 31 hewrote: [30] In CanadianOxy Chemicals Ltd. v. Canada (Attorney General), (SCC), [1999] 1 S.C.R. 743, Mr. JusticeMajor said this in discussing the search warrant provisions of the Criminal Code: 20 ... The point of the investigative phase is to gather all the relevant evidence in order to allow a responsible and informed decision

to be made as to whether charges should be laid. 21 At the investigative stage the authorities are charged with determining the following: What happened? Who did it? Is the conductcriminally culpable behaviour? Search warrants are a staple investigative tool for answering those questions, and the

section authorizingtheir issuance must be interpreted in that light. 22 The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensurethat the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all theevidence relevant to events which may have given rise to criminal liability. It is not the role of the police to investigate and decidewhether the essential elements of an offence are made out – that decision is the role of the courts.

The function of the police, and otherpeace officers, is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether chargesshould be laid, and then present the full and unadulterated facts to the prosecutorial authorities. To that end an unnecessary and restrictiveinterpretation of s. 487(1) defeats its purpose. [citation omitted.] [31] Also apt is the following from R. v. Canadian Broadcasting Corp. (1992), (ON SC), 77 C.C.C. (3d) 341at 351 (Ont. Ct. (G.D.)), wherein Mr.

Justice Moldaver, as he then was, rejected a submission that a justice of the peace must besatisfied, on reasonable grounds, that the items sought would afford evidence of the actual commission of the offence underinvestigation: The proper

interpretation [of s. 487(1)(

b) of the Criminal Code] was set out many years ago by Chief Justice McRuer in the case of ReBell Telephone Company of Canada (1947), (ON SC), 89 C.C.C. 196, 4 C.R. 162, [1947] O.W.N. 651 (Ont. H.C.). Atp. 198, the Chief Justice said: As I view it, the object and purpose of these sections is to assist the administration of justice by enabling the constable or otherproperly designated person to go upon the premises indicated for the purpose of procuring things that will in some degree affordevidence of the commission of an alleged crime.

It is not necessary that the thing in itself should be evidence of the crime, but it must besomething either taken by itself or in relation to other things, that could be reasonably believed to be evidence of the commission of thecrime. [Italic emphasis by Moldaver J.] See also: Weins v. The Queen, reflex, (MB KB), [1973] 6 W.W.R. 757 at 763 (Man. Q.B.). Reasonable Grounds and the Requirements for a Search Warrant [18] The reasonable grounds standard is “... the point where credibly-based probability replaces suspicion.” Hunter v. SouthamInc., (SCC), [1984] 2 S.C.R. 145 at p. 167. [19] R. v.

Morris (1998), 1998 NSCA 229 , 173 N.S.R. (2d) 1 (C.A.) summarized the key elements of what must beshown to establish “credibly based probability” at para. 31: (

i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that anoffence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at aspecked place: (R.. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at 365). (ii) The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents withoutlegal assistance, should not be held to the “specificity and legal precision expected of pleadings at the trial stage.”(Sanchez, supra, at364)

(iii) The affiant’s reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totalityof circumstances, disclose a substantial basis for the existence of the affiant’s belief: R. v. Yorke (1992), (NS CA),115 N.S.R. (2d) 426 (C.A.); affd (SCC), [1993] 3 S.C.R. 647. .... [20] A Justice of the Peace is entitled to draw reasonable inferences from the material in the ITO. See R. v. Durling, 2006 NSCA124 at paras. 27-28; see also R. v.

Vu at para. 40. [21] Before granting a search warrant, the Justice of the Peace must be satisfied there is a nexus between the grounds for believingan offence has been committed and that evidence of the commission of the offence or information that assists in the investigation of theoffence will be found on the premises to be searched. R. v. Turcotte (1987), (SK CA), 39 C.C.C. (3d) 193 (Sask.C.A). [22] In R. v.

Du, 2004 ABQB 849 Justice Macklin summarized the law respecting the description of things to be seized in awarrant at para. 12: [12] The description of the things to be searched for operates as a guide for the officers conducting the search. A jurisdictional error ismade where the description is either so broad or so vague so as to essentially allow the officers conducting the search carte blanche tosearch for any evidence wherever it may be found within the building.

Some of the applicable principles set out in the cases include: 1. peace officers should be given some latitude in describing things as they are still at the investigative stage; 2. the description may be limited to classes of documents if it is sufficiently limited to the crime for which they are alleged to affordevidence; 3. the Information sworn to obtain the Search Warrant must be read together with the Search Warrant; 4. the nature of the offence(

s) must be considered; 5. in considering all of the factors, appropriate inferences may be made; 6. there need not always be a time limit set out with respect to the documents sought; 7. overly broad or vague descriptions can be severed leaving validly described things remaining; 8. each case must be considered on its own facts. (see R. v. Church of Scientology, supra; Re: Lubell and The Queen (1973), (ON SC), 11 C.C.C. (2d) 188 (Ont.H.C.J.); R. v. Silverstar Energy Inc., [2004] B.C.J. No. 1767 (B.C.S.C.); R. v. Sanchez and Sanchez (ON SC), (1994),93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.); R. v.

PSI Mind Development Institute Ltd. (1977), (ON SC), 37 C.C.C. (2d)263 (Ont. H.C.)). See also R. v. Soloway and Mills (1930), (AB CA), 24 Alta.L.R. 410 (Alta. S.C.A.D.). Standard of Review [23] The legal principles to be applied in the review of an ITO were summarized most recently in R. v. Campbell, 2011 SCC 32 atpara. 14: 14 The relevant legal principles are not at issue in this appeal. Juriansz J.A. correctly followed the approach to reviewing thesufficiency of a warrant application recently reviewed by this Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.

In order tocomply with s. 8 of the Charter, prior to conducting a search the police must provide “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” (Hunter v. SouthamInc., (SCC), [1984] 2 S.C.R. 145, at p. 168). The question for a reviewing court is “not whether the reviewing courtwould itself have issued the warrant, but whether there was sufficient credible and reliable evidence” to permit an issuing justice toauthorize the warrant (Morelli, at para. 40). In conducting this analysis, the reviewing court must exclude erroneous information fromthe ITO and may have reference to material properly received as “amplification” evidence R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R.992, at para. 58; Morelli, at para. 41). The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (AttorneyGeneral) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; Morelli, at para. 131). [24] The Court of Appeal in R. v. Dionisi, 2012 ABCA 20 at para. 21 provided additional guidance by way of

summary of otherapplicable legal principles to consider on a review: 21 Even if it is established that there are flaws in the ITO, such as that information is inaccurate, or a material fact is not disclosed,this will not necessarily detract from the existence of the statutory pre-conditions: see R. v. Pires, 2005 SCC 66 at para 30, [2005] 3 SCR343.

As the trial judge noted, the fact that the confirmatory information in the ITO related to details other than the actual observations ofdrugs in the house or the fact of appellant's trafficking, that confirmation still has value on the totality of the circumstances: R. v.Caissey, 2007 ABCA 380 at para 23, 227 CCC (3d) 322, aff'd 2008 SCC 65, [2008] 3 SCR 451; R. v. Hillgardener, 2010 ABCA 80, 252CCC (3d) 486. Here the ITO said that the informant had provided reliable information in the past and that he had been compensated forit, and also that he had a relationship with the handler.

The fact that the informant had given specific details about non-offenceparticulars was still consistent with the informant providing information on which reliance could be placed. There would in such acontext be support for the idea that the informant had no grudge against the appellant but a motive to work with the police. a. Sub-subissue #1: Erroneous Information [25] Mr. Deer submits there is erroneous information in the following paragraphs of the ITO: 1. The phrase “recent repeated conflicts” in paragraph 2 d); 2. Paragraph 14; 3. Paragraph 16; 4. Paragraph 9; and 5. Paragraph 19.

Paragraphs 2d) and 14 of the ITO [26] Det. Jennings testified S/Sgt. Matthews relayed the contents of paragrah 2

d) to him. In cross examination, Det. Jenningstestified: Q And you indicate and use the term "recent repeated conflicts." Would you agree with me that that in fact is misleading? A Well, given what I know now, sir, yes, there’s one ongoing conflict. [27] I do not find the phrase “recent repeated conflicts” to be misleading in light of the number of emails between Mr. Beauchampand Mr. Deer in December 2005, which this phrase relates to.

However, I will excise the word “repeated” in paragraph 2 d). [28] Paragraph 14 of the ITO relates to a yellow towel found by the police on a board room table in the Morbank Financial officeafter the death of Mr. Beauchamp. The paragraph states: On 2006/01/16 at 15:27 hours I spoke with A/S/Sgt. Bill STURGEON of the CPS Crime Scenes Unit. He informed me of the following:

a) The towel, described earlier by Sgt. ANDERSON, is a solid yellow towel. It is rolled up and appears out of place. I have known Sgt. STURGEON for several years and I know him to be a highly competent Crime Scenes investigator. I verily believe the details he has provided.

I believe that the towel may have been used to conceal the firearm and, since towels are generally sold in sets, a similar YELLOW TOWELS will be found within the residence at [...] Mount Douglas Point, SE. [ 29 ] The evidence before me established the towel referred to in paragraph 14 of the ITO was a cloth towel left by EMS the morning of the shooting. In cross examination, Det.

Jennings testified that while he read one of the EMS personnel’s statement that stated, “We took Judy back into the boardroom and asked CPS if we could clean blood off Judy’s face and hands with towels, cloths, swipes from our unit,” it never occurred to him the yellow towel was the towel described in the statement. He explained that in all of his “hundreds of interactions with EMS personnel” he never recalled seeing a cloth towel. [ 30 ] I accept Det. Jennings’ evidence that this was an honest mistake. In light of his evidence, I have excised paragraph 14 from the ITO as it was based on an erroneous assumption.

Paragraph 16 of the ITO [ 31 ] The Crown conceded the information in paragraph 16 of the ITO is in error as the sequence of events is backwards; Mr. Deer made the comments about Mr. Beauchamp before being chartered by Det. Utigard. In light of this error, I have excised paragraph 16. Paragraph 9 of the ITO [ 32 ] Mr. Deer submits the information in paragraph 9 should be excised because it is information obtained as a result of a warrantless search. For the purpose of this application, I will assume the information Det. Dooks received from TD Security was as a result of a warrantless search.

A warrantless search is presumed to be an unreasonable search that violates s.8 of the Charter . [ 33 ] Upon review of the withdrawal slip itself, the date, time, amount of the withdrawal and the machine number are recorded on the slip. The information Det. Dooks was provided at the time of this call was the location of the machine and the withdrawal amount. The withdrawal amount was information already in the possession of the police prior to Det. Dooks calling TD Security. Based on the time of the withdrawal in relation to the time Mr.

Deer was arrested, the police would have been able to infer the location of the machine was in Calgary or a location surrounding Calgary. [ 34 ] As the police were in possession of all but one piece of the information - the exact location of the machine - prior to Det. Dooks calling TD Security, and I find they could have inferred the location was Calgary or a location surrounding Calgary, nothing comes of this warrantless search. See R.v. Weir, 2001 ABCA 181 at para. 12 . There is no basis to excise this paragraph. Paragraph 19 of the ITO [ 35 ] Paragraph 17

c) of the ITO stated that Tanis Deer was told Brad [Caspick] smuggled a gun across the border from the United States and “Bob” paid him $400.00. In paragraph 19, information was set out that Brad Caspick denied selling any guns to Mr. Deer. At the conclusion of paragraph 19, Det. Jennings opined “Based upon the information from Tanis DEER that ‘Brad’ may have smuggled a gun across the border I believe CASPICK would be reluctant to admit selling any such weapon to Robert DEER. [ 36 ] Mr. Deer submits this is an unreasonable conclusion and ought to be excised.

I do not accede to this submission in that individuals do not always make an admission against interest, especially if there livelihood is based upon crossing international borders as was Mr. Caspick.

b. Sub-subissue #2: Material Non Disclosure [37] Mr. Deer submits the ITO is incomplete, misleading and/or misrepresented the investigation because Det. Jennings wassequestered, kept away or was purposely secluded from the investigation. Mr. Deer submits this led the police to be able to “pick andchoose” the relevant facts for the ITO to achieve their desired outcome of a search warrant rather than presenting all material facts,favourable or not. See for example R. v. Morelli at para. 58. [38] Mr. Deer likened Det. Jennings situation to that in R. v. M(NN) (2007), (ON SC), 223 C.C.C. (3d) 417(Ont. Sup.

Ct. of Jus.) where the affiant was described at para. 354 “... as a straw man affiant apparently deliberately kept in the dark ...”.This submission is based upon Det. Jennings’ evidence where he described his role as the affiant this way: Q In this team of officers you have, you all work together, right?

A Well, we do, sir, but the role of the affiant is a little unusual in that the investigative lead partnership, which in this case is DetectivesUtigard and Minello, they -- all information comes to them and they control the speed, tempo and direction of the investigation and anytactics that relate to the next steps in the investigation. As the affiant I’m removed from most of the goings-on, and the officers, primarily that investigative partnership, to a large degree it’ssubjective, but they bring information to me to add to my Information to Obtain and -- or other officers do typically at their direction.

SoI’m not in the loop on everything because I’m very focused on my task of compiling that Information to Obtain, and the officers come tome with information. So I wasn’t privy to absolutely everything that was going on. ... Q ... Are you saying that you were not partnered with Detective Dooks on January the 16th, 2006? A I wouldn’t say I was partnered with anybody, sir. As the designated affiant, like I say, you’re more or less detached from the group andworking on your own.

Q Well, within this, again, investigation, the free flow of information between all of the parties, and by all the "parties" I mean theinvestigators and the people who were carrying out the investigation, of course the tech crimes, Crime Scene Unit, this is all exchangeamongst the members who were present in the briefings and during the course of the investigation; is that correct? A Yes, sir. When the briefings occur though they occur in what we call the "war room," which is a larger conference room that’s not inthe cubical area of where I would be writing.

So I know I made it to portions of some briefings, but I was more or less secreted away intomy cubical and receiving information as officers brought it to me. [39] As of January 16, Det. Jennings estimated he had “... probably written somewhere in the order of 125 - 150 orders. The vastmajority ... [were] production orders. Search warrants specifically, probably about 50 at the time ...”. [40] From Det. Jennings’ evidence and the evidence of the other investigating officers, I find that all information obtained that firstday of the investigation went to the primary investigator - Det. Utigard.

As the officer who had overall responsibility for the file, he wasin the best position to assess the relevance of any particular piece of evidence at the time he was apprised. It is important to rememberthat one cannot look back through the lens of a completed investigation to determine the relevance of any particular piece of information.Rather, the information and its relevance must be assessed in relation to what information the police had at that time. [41] I do find Det. Jennings worked on the ITO in an area separate from the other homicide investigators. This makes sense.

Histask was to carefully review and synthesize the information that was brought to him; careful review and synthesizing for mostindividuals requires concentration and some quiet. In addition, a review necessitates questioning the officers who bring the informationto the affiant. Any affiant with the experience possessed by Det. Jennings in January 2006 would understand it is they who will be crossexamined in the Garifoli application; thus, it is critical they question and understand the information they are brought by other officers.

[ 42 ] Mr. Deer submits Det. Jennings was purposely secluded so that the investigators could “pick and choose” the relevant information for the ITO amounting to material non disclosure. The three pieces of evidence he submits should have been included in the ITO are: 1. The GSR test conducted upon Mr. Deer at the Andrew Davison Building; 2. The photos of Mr. Deer’s hands taken at the Andrew Davison Building; and, 3. Det. O’Brien’s observations from the security video footage of the various entrances to the office tower where Morbank Financial was situated.

The GSR test [ 43 ] A gun shot residue (GSR) test is a test that swabs, with an adhesive stub, a person’s clothing, hands and/or face and the analysis of the adhesive stub may indicate if someone has used a firearm or had been in close proximity to a firearm that was used. This test is carried out by members of the CSU at the Calgary Police Service. Det. Jennings testified it is a standard procedure to have the test conducted in a shooting investigation. In this case, Cst. Sutton of the CSU administered the test to Mr. Deer. [ 44 ] Mr.

Deer submits the omission of the information respecting the test amounts to material non disclosure. This submission is based upon Det. Utigard’s testimony that he understood the test results were negative: Q Did Constable -- did the constable who performed the GSR test confirm to you the results of that test? A I believe at some point. I’m not sure if it was immediate or -- Q Isn’t the GSR test one that’s done and the results are immediately apparent? A I’m not certain, actually, but I was aware that -- to my understanding, it was negative.

Q And that information came right back from the officer who had conducted the test? A I would -- I would think so. Q And would you agree with me that it happened shortly after this 12:44 period? A I don’t specifically recall, but I would think it probably would. Q And you’d be interested in that. I mean, that’s obviously something of significant interest to you. A Yes. [ 45 ] A/Sgt. Dueck, a member of the CSU, testified the adhesive stub must be sent away for analysis at a forensic lab. Det. Minello testified he did not know the results of the GSR test upon Mr.

Deer because his “... understanding, it takes several months to get these results back.” Det. Jennings evidence was similar to Det. Minello’s. Det. Dooks was only asked if the GSR test results were negative to which he replied, yes. Det. Dooks’ evidence is neutral on this point as he was not asked when he came to learn this information. [ 46 ] I accept the evidence of A/Sgt. Dueck whose unit was and is responsible for conducting these tests as well as the evidence of Det. Minello and Det. Jennings. Thus, at the time the ITO was drafted, the police did not have the results of the GSR test.

[ 47 ] I do not accept Det. Utigard’s evidence on this issue. His evidence suggested to me on this point, as well as others, that he had forgotten a number of details of the investigation due to the passage of time. [ 48 ] I do not find the omission of this information was material non disclosure because the police did not possess the test results at the time the search warrant was obtained. The photos of Mr. Deer ’s hands [ 49 ] Cst. Sutton took photos of Mr. Deer’s hands at the Andrew Davison Building.

Again, this was described as a standard procedure to determine whether or not a person had any wounds, including defensive wounds, to their hands. The photos of Mr. Deer’s hands revealed he had no injuries. [ 50 ] I fail to see how this information was material. The photos of the crime scene as well as the information at paragraph 13

a) suggest a passive scene with no evidence of any physical altercation between Mr. Beauchamp and the shooter. Det. O ’Brien ’s observations of the security video at 635 - 8 th Avenue S.W. [ 51 ] Det. O’Brien was given the investigative task of reviewing all the security video footage at 635 - 8 th Avenue S.W., the street address of the office building the Morbank Financial office was situated. [ 52 ] He arrived at the building at 12:55 p.m. and spoke to a security officer regarding arrangements for him to view the videos for the building. At 1:28 p.m., he went to the Morbank offices to view Mr.

Beauchamp, his clothing and the scene. Det. O’Brien left the scene at 1:37 p.m. and then began to review the security video footage at 1:46 p.m. After he began to review the footage, he observed Mr. Beauchamp enter the building via a Plus 15 at 7:49 a.m. on January 16. [ 53 ] At 2:19 p.m., Det. O’Brien began to review the security video footage of the main floor elevator area and observed a male enter the 8 th Avenue front door at 7:53 a.m. and enter an elevator. The same man was observed exiting the building at 7:57 a.m.

On both occasions, the man was wearing gloves, dark sunglasses, dark coloured clothing, had a full beard, and was carrying a bag. Det. O’Brien called S/Sgt. Matthews with this information. There is no evidence before me respecting what, if anything, S/Sgt. Matthews did with this information. [ 54 ] At 3:05 p.m. Det. O’Brien received five CDs containing all the security video footage for the building. [ 55 ] At 4:00 p.m. Det. O’Brien recalled briefing Det. Utigard and Det. Minello at the homicide office respecting his observations. Det.

O’Brien testified he continued to view the videos “well into the evening and well past that”, looking for individuals that may be suspects. [ 56 ] Det. Jennings testified he took the ITO to the duty inspector at 5:45 p.m., and he did not learn of Det. O’Brien’s observations until after the search warrant was granted. [ 57 ] I accept the evidence of both Det. O’Brien and Det. Jennings as both were involved in the two activities in question: watching the security video footage and drafting the ITO. [ 58 ] Det. Utigard was questioned on this point. His testimony in cross examination is set out below:

[ 58 ] Det. Utigard was questioned on this point. His testimony in cross examination is set out below: Q There’s a point in the afternoon, ... - that you speak to Detective O’Brien, who indicates that he noted a suspicious looking individual on security footage at the scene. That’s fair? A I recall something about that, yes. Q And again Detective O’Brien, the task he had was to review the security footage at this particular Morbank office, and he called from this particular site to indicate what he had, in fact, seen. Is that fair? A Yes. It may have been the next day.

I can’t seem to find it in my notes, but I recall that. Q So do you recall having a discussion with Detective O’Brien about what he was tasked with that day or not? A Yes, I recall he was checking the video, and we eventually retrieved the video. Q And I understand what you’re saying is that you physically have the video and you may have it at a later time, but certainly the contents of it were made aware to you that day via Detective O’Brien. A Have you got an exact time? I can’t seem to find it, but I recall what you described, a suspicious person. I just can’t remember specifically when that was. Q Okay.

That doesn’t sound like something unusual, though? That sounds like something you would have been made aware of? A Yes. Q All right, that’s fine. Now, did Detective O’Brien describe to you that individual in any detail that you’re aware of that you can recall today? A I believe he would have. Q And if I was to suggest this - and if you agree or don’t agree, please do so - a male wearing gloves, dark sunglasses, dark-coloured clothing, full beard, carrying a bag, does that sound like something that was familiar to what Detective O’Brien would have conveyed to you on that day? A Yes, that’s familiar.

Q And that individual Detective O’Brien described to you as a dark-skinned or a darker skinned male. Is that fair? A Yes. Q And would this information then have been shared amongst the other officers who were working on the case? A Yes. ... Q Okay. And do you also get further video surveillance from Detective O’Brien on a CD format that you view with the other detectives in the unit? A Eventually, yes.

Q And would it be fair to say that at this point you had another suspect in this matter, and this is the man entering the building that you’ve described? A Yes. ... Q By the early afternoon of January the 16th, 2006, would it be fair to say that you knew Mr. Deer was not present at the site of the shooting at the Morbank offices? A Well, there wasn’t any video that showed him. Q Yeah. And there was no other information from any of the investigators that placed Mr. Deer at this building at the time of the offence. A That’s right.

Q So I’d suggest it would be fair to say that by the afternoon, you’ve come to the conclusion that you couldn’t place Mr. Deer at this building at the time of the offence. A Yes. [ 59 ] Mr. Deer submits the ITO required the inclusion of the following information for it to be fair and balanced. He submits its non-inclusion amounts to material non disclosure: 1. The ITO did not include the time Mr. Beauchamp entered the building at 635 - 8 th Avenue S.W. 2. The ITO did not include Det.

O’Brien’s observation of a man, he believed to be suspicious, coming and going from the building at times that were linked temporally with the shooting. 3. The ITO did not state the police had no evidence that would place Mr. Deer at the building. In essence, Mr. Deer’s submission is that if this information had been included, the warrant would not have issued. [ 60 ] The position of the Crown begins with its reliance on paragraph 22 of the ITO which states: I verily believe that Robert DEER had a hand in the killing of Jack BEAUCHAMP.

I believe he either committed the murder himself or had it orchestrated. [ 61 ] The Crown submits that in light of the alternative theories of participation set out in paragraph 22 of the ITO, the police were not misleading the Justice of the Peace nor would any of the above information have affected Det. Jennings’ belief that Mr. Deer had “a hand in the killing of Jack Beauchamp in that he had it orchestrated.” [ 62 ] It is important to remember that one of the purposes of a search warrant is to gather, examine and preserve relevant evidence to assist in the investigation of a crime.

It is also important not to view what information the investigators have at a particular point in time with 20/20 hindsight.

[ 63 ] The information the police had was that Mr. Deer had threatened Mr. Beauchamp with respect to a business deal, and that according to Mr. Beauchamp, Mr. Deer owed money as a result of the business deal. Mr. Beauchamp felt sufficiently threatened to place Mr. Deer’s emails in one location and advised a co-worker, Calvin Volk, where the emails were stored “in case something happened”. [ 64 ] By the time Det. Jennings went before the justice of the peace, the police knew: 1. The 911 call was made at 8:02 a.m.; 2. The police could not place Mr. Deer in the building; 3.

The police had observed a male they believed looked suspicious enter and exit the building shortly before the 911 call. The homicide investigators had no information about this male including his identity. [ 65 ] In assessing the information that was not included in the ITO, I find that including the time Mr. Beauchamp entered the building would have added very little to the evidence before the issuing justice because the key piece of information is the time of the 911 call, which was in the ITO. [ 66 ] I am of the view it would have been better had Det.

Jennings included in the ITO that at that point in time, the police could not place Mr. Deer in the building. Having said that, I believe paragraph 22 clearly sets out for the issuing justice that the police were operating on two theories: Mr. Deer caused Mr. Beauchamp’s death, or Mr. Deer was a party to the death. As the police were operating with a theory of Mr. Deer being a party to the homicide, the omission of this information does not amount to material non disclosure. [ 67 ] I am unsure as to the evidentiary value, if any, had Det.

Jennings been given the information about the “bearded man with sunglasses” and it was included in th ITO. At best, Det. Jennings would have only been able to attest to a bearded man wearing dark sunglasses enter and exit a busy downtown office tower shortly before the 911 was received. The police did not know the identity of the man, if there was any link between the man and Mr. Deer, or if there was any link between the man and Mr. Beauchamp. In light of the police theory that Mr. Deer was either a principal or a party, this information did not detract from Mr.

Deer being a party. [ 68 ] In conclusion, I do not find these three omissions constituted material non disclosure at the time the police applied for the search warrant. c. Sub-subissue #3: Reasonable and Probable Grounds [ 69 ] Mr. Deer submits the police lacked any connection of him to the shooting. Thus, there were no reasonable grounds and/or nexus upon which the issuing justice could grant the search warrant for his home and motor vehicle. [ 70 ] The Crown submits the information before the issuing justice established a homicide and provided a nexus between Mr. Deer and the homicide and Mr.

Deer and his home and motor vehicle. [ 71 ] In my view, the position of Mr. Deer is too narrow.

A search warrant may be granted if the police provide reasonable and probable grounds, established under oath, that there is evidence to be found at the place of the search so long as the issuing justice is satisfied there is a nexus between the grounds for believing an offence has been committed and that evidence of the offence or evidence to assist the investigation will be found at the place to be searched. [ 72 ] In analysing this issue, I must also exclude the erroneous information set out above and determine whether there was sufficient remaining evidence upon which the search warrant could issue.

[ 73 ] The Crown’s written material set out its submissions on this issue at paragraphs 14 through 20. I agree with their submissions at paragraphs 14, 15, 16, and 18. As I have excised paragraph 14 of the ITO, I place no weight on their submissions found at paragraph 17. [ 74 ] Paragraph 19 of the Crown’s written material provides: Police in paragraph 13 of the ITO lay out their grounds for believing that blood would be found in the home or car of someone involved in the shooting of Jack Beauchamp. [ 75 ] There was no evidence that attacked Sgt. Anderson’s evidence found at paragraph 13

a) b) and

c) of the ITO. Thus, I accept the Crown’s submission in paragraph 19. [ 76 ] Taking into account the Crown’s submissions I adopt and the remaining paragraphs of the ITO before the issuing justice, I find there was sufficient credible and reliable evidence to permit the issuance of the search warrant. The information before the issuing justice was that: 1. There was business conflict between Mr. Beauchamp and Mr. Deer wherein Mr. Deer was alleged to owe Mr. Beauchamp money. From this, an inference could be drawn that Mr. Deer had a motive. 2. Mr. Deer had threatened Mr. Beauchamp in the past and Mr.

Beauchamp took those threats seriously. 3. Mr. Deer had access to firearms and a firearm had been used to kill Mr. Beauchamp. Firearms were in Mr. Deer’s home. 4. Mr. Deer had a computer in his home and at least some of the threats were sent by email. 4. Mr. Deer was located in his vehicle as he arrived at his home. He was in possession of papers and a binder when arrested just 3 hours after the shooting. This information establishes reasonable grounds to believe there is evidence to be found at the home or vehicle of Mr.

Deer in relation to a homicide in where there is evidence of motive and animus between the deceased and Mr. Deer. d. Sub-subissue #4: Search of the Computers [ 77 ] Mr. Deer submits that the search warrant only allowed for the seizure of the computers. It did not allow the police to examine the contents of the computer. Alternativley, he submits that if the warrant did allow the police to examine the contents of the computer, the search warrant itself required the police to search the contents of the computer during the time period set out in the warrant. Cst.

Hattjas, the officer who searched the computer, testified his search of the computer took place after January 17, 2006. [ 78 ] This warrant was issued in 2006. At that time the law in Alberta, and indeed Canada, respecting searches of computers was R. v. Weir , 2001 ABCA 181 . Weir stated at paras. 18 and 19 : 18 Under the authority of the search warrant the police seized the appellant's CPU and several diskettes. The extraction of data occurred at a later date.

The warrant authorized the seizure of "things", described, in part, as "computer equipment including magnetic or other machine readable storage equipment... or any other device... used or capable of being used to create, store or manipulate electronic

documents, records or graphic files..." This definition is broad enough to cover the CPU. 19 The appellant argues that subsequent amendments to the Criminal Code in 1997 allowing for on-site data collection preclude off-site data collection. This is untenable. The police had a warrant to seize the computer from the appellant's home. That is exactly what they did. As long as the CPU was seized properly, the information contained in it could be extracted at a later date.

To adopt the analogy used by the trial judge, this is not unlike the seizure of blood in which police do not want the blood, but rather, the information that the blood can provide. [ 79 ] I am obviously bound by Weir . See also R. v. Franko, 2012 ABQB 282 . [ 80 ] Based on the Weir decision, I find the search warrant allowed the police to seize the computers and search the contents of the computer after the warrant was executed. [ 81 ] Weir was recently followed in R. v. Ballendine , 2011 BCCA 221 .

One of the issues before the court was whether a second warrant was required to search the hard drive of the computer seized from the accused’s home. The court’s reasoning on this issue is found at paragraphs 65, 69 and 70: 65 The trial judge dealt with this issue as follows: [80] ... The warrant was executed within the time frame set forth by its terms.

It was not and could not be contemplated that the review and analysis of the contents of the computers would or could be accomplished within that time. [81] In my view, the seizure of computers, where authorized, is akin to the seizure of large volumes of documents in, for example, a commercial fraud investigation where documents may number in the thousands or even the hundreds of thousands and may be seized with the contemplation that their content will be reviewed or analyzed after the execution of the warrant.

In such circumstances, there is no need for subsequent warrants to review the contents of what was authorized to be searched for and, if found, seized. ... 69 The situation in the case at bar is far removed from Vu . Here there were reasonable grounds to believe that the Old Esquimalt Road premises were being used as a residence. There were also reasonable grounds to believe that a computer used in the commission of the offence being investigated would be found there. As well, the justice of the peace was made aware that an on-site forensic examination of any computer would be impracticable.

Far from being implicit, the warrant expressly authorized the police to "search for and seize", amongst other things, computers. 70 In this case, the police were authorized, on the basis of the warrant, to remove the computer and related equipment from the Old Esquimalt Road premises and to examine them for the purpose of locating any electronically-stored data covered by the warrant: see R. v. Weir , 2001 ABCA 181 , 156 C.C.C. (3d) 188 at paras. 18 , 19. [ 82 ] The first appellate authority to question Weir is R. v.

Jones, 2011 ONCA 632 where the Ontario Court of Appeal was asked to provide “guidance on the appropriate scope of examination of computers seized under warrant.” Jones was decided after Morelli , and is presently before the Supreme Court of Canada. [ 83 ] In Jones , the police were investigating Mr. Jones for fraud. A search warrant was issued authorizing the seizure of “any electronic data processing and storage devices, personal computer and computer systems”. The police seized Mr. Jones’ computer and in the course of examining its contents for fraud, found evidence of child pornography.

Based on legal advice, the police did not obtain a second warrant and continued their investigation into the offence of child pornography which included finding video files which would

not have been accessed had the search been confined to the evidence of fraud. [ 84 ] The Ontario Court of Appeal found the seizure of the image files containing child pornography did not constitute a s. 8 breach but did find the seizure of the video files containing child pornography to be a breach. [ 85 ] In its analysis of the issues before it, the court made certain statements with respect to the warrant at paras. 32, 34, 42 - 44 that are applicable to the facts before me: 32 First, I do not read the warrant as authorizing a comprehensive review of the entire contents of the appellant's com

[…]