Alberta (Justice) v Wong, 2012 ABQB 498

Court of Queen ’ s Bench of Alberta Citation: Alberta (Justice) v Wong, 2012 ABQB 498 Date: 20120731 Docket: 1001 11690 Registry: Calgary Between: Minister of Justice and Attorney General for Alberta Respondent(Applicant) - and - Alex Chun-Yip Wong and Yen Chen Huang and the Minister of Public Works and Government Services Applicant(Respondent) 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 Judgment of the Honourable Mr. Justice C. M. Jones _______________________________________________________ I. Introduction

[ 1 ] Yen Chen Huang (“Ms. Huang”), seeks a review of a restraint order granted by Madame Justice Strekaf on August 4, 2010 (the "RO"), pursuant to

section 5 of the Victims Restitution and Compensation Payment Act , SA 2001, c. V-3.5 (the "VRCPA"). The RO was issued in respect of property, specifically a large amount of cash, seized from her home at [...]-[...] Garry Crescent N.E., Calgary, Alberta ("Residence"). [ 2 ] The Minister of Justice and Attorney General for Alberta (the “Minister”) has made an application for an Order of this Court directing forfeiture to Her Majesty the Queen in Right of Alberta of Ms. Huang’s interest in the seized property.

That application has been adjourned, pending the outcome of this application for review of the RO. [ 3 ] Ms. Huang alleges that the search of her home and the seizure of her property were improper. Consequently, she believes that information seized as a result of that search, which formed the evidentiary basis for the RO, should have been excluded from Justice Strekaf's deliberations. [ 4 ] She asserts that this Court should set the RO aside because, absent the excluded evidence, there is insufficient evidence to sustain it.

Consequently, she seeks to have the RO set aside and her property returned to her. [ 5 ] She asks this Court to conclude that the warrant authorizing a search of her residence ("Original Warrant") was improperly obtained. She asserts that it was obtained in breach of her rights under

section 8 of the Canadian Charter of Rights and Freedoms (the " Charter "). That

section provides that: Everyone has the right to be secure against unreasonable search or seizure. [ 6 ] Ms. Huang challenges the propriety of the Original Warrant on two grounds. First, she asserts that her

section 8 Charter rights have been infringed because the police had insufficient grounds to obtain a search warrant for the Residence. [ 7 ] Second, she asserts that her

section 8 Charter right to privacy has been infringed because police improperly divulged information about her, obtained in furtherance of a criminal investigation, to the Minister. She alleges that disclosure of this information to the Minister was improper because it was utilized by the Minister for a purpose unrelated to the enforcement of criminal law. Additionally, she asserts that the Original Warrant was defective because the police failed to advise the issuing Justice of the Peace, William Shiplett ("Shiplett") that they intended to turn information seized over to the Minister for use in civil forfeiture proceedings. [ 8 ] Having asserted that her

section 8 Charter rights were breached, she then invites this Court to conclude that, in its review of the RO, it would be appropriate for the Court to exclude evidence thus obtained as to do otherwise would bring the administration of justice into disrepute. [ 9 ] Finally, she would have this Court conclude that, absent such excluded evidence, there would have been no basis for issuance of the RO. The RO should be set aside and this Court should order return of her property. [ 10 ] For the reasons discussed below, I find that Ms. Haung’s

section 8 Charter rights were not breached. I find that the Original Warrrant was not improperly obtained. Evidence seized pursuant to the Original Warrant was properly before Justice Strekaf and the RO stands. II. Background (

a) The Information to Obtain ("ITO") and the Original Warrant

[ 11 ] On July 2, 2009, Shiplett granted the Original Warrant pursuant to the provisions of

section 11 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ("CDSA").

The Original Warrant was issued in response to an ITO sworn by Constable Robbi Mackenzie of the Calgary Police Service ("Mackenzie"). [ 12 ] Mackenzie stated at page 1 of the ITO that he had reasonable grounds to believe and did believe that, inter alia , offence-related property or a thing that will afford evidence in respect of an offence under the CDSA , including cash and documents relating to ownership/occupancy of the Residence (collectively, the "Offence Related Property"), would be found in the Residence. [ 13 ] Further, Mackenzie deposed at the bottom of page 1 of the ITO with regard to the particular offence in respect of which the Offence Related Property would be evidence.

He stated as follows: On the 2nd day of July, 2009, at or near Calgary, Alberta, Bobby YUN, did unlawfully possess a controlled substance, to wit; cocaine, for the purposes of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . The ITO encompassed some 49 paragraphs. Its contents are discussed in detail below. [ 14 ] Yun was believed to be trafficking in drugs.

Information received by the Calgary Police Service ("CPS") in March of 2009 suggested that Yun was engaged in cocaine trafficking from a location in Chestermere. [ 15 ] Information received by the CPS in April of 2009 gave further indication of Yun's activities, their extent and his mode of operation, including the use of his vehicle and the involvement of his wife and children in the execution of his activities. Yun's drug related activities are briefly referred to at page 4 of Ms. Huang's brief.

She concedes, at para. 42a of her brief that "There are sound reasons to believe that he is a drug dealer …" [ 16 ] In contrast to Ms. Huang's brief recitation of Yun's involvement with criminal activity, the ITO describes these activities in much more detail under the heading "Investigative

Summary", being paras. 7 to 43, inclusive. It describes in detail: 1. Mackenzie's experience in the investigation of drug related criminal activities; 2. various law enforcement databases and resources utilized to amass information regarding Yun's extensive drug related activities; 3. the involvement of various law enforcement personnel in this investigation, as well as their respective backgrounds and contributions; 4. the use of informants; and 5. surveillance procedures. [ 17 ] As discussed in more detail below, notwithstanding Ms.

Huang's acknowledgment that Yun was likely engaged in drug trafficking, she challenges the sufficiency of any evidence that would responsibly have lead the police or Shiplett to conclude there were reasonable and probable grounds to justify a search of the Residence. (

b) Key aspects of the investigation leading to the request for the Original Warrant

[ 18 ] Further surveillance of Yun was conducted in May and June of 2009. Police observations on June 30, 2009 are pivotal in assessing the adequacy of the evidence forming the basis for the ITO and the issue of the Original Warrant. [ 19 ] As noted at para. 35c. of the ITO, on June 30, 2009, Yun was observed driving to the building ("[...] Garry Crescent N.E." ) in which the Residence was located. Mackenzie states at that paragraph that Yun was observed by Det. Hatchette carrying a "man bag" over his shoulder. The man bag was described by Det.

Hatchette as "bursting full". [ 20 ] Yun was observed entering [...] Garry Crescent N.E. at 9:13 p.m. that evening. Approximately 20 minutes earlier, Det Hatchette observed Yun: 1. access the rear passenger seat of his BMW vehicle; 2. exit his BMW vehicle carrying a white grocery bag; 3. access his Mercedes vehicle; and 4. drive to and enter [...] Garry Crescent N.E. [ 21 ] As noted at para. 35d. of the ITO, approximately five minutes after Yun entered the building, Cst. Schindel observed a Suzuki vehicle pull up beside Yun's Mercedes vehicle, which had been parked on Garry Crescent.

Yun exited the Suzuki vehicle and returned to his Mercedes vehicle. [ 22 ] A check of the Suzuki vehicle by Cst. Kelm disclosed that it was registered in the name of Alex Wong ("Wong"). Police had attended at the Residence on January 12, 2009 in connection with a domestic dispute involving Wong.

The Residence, a condominium unit, was actually owned by Jacqueline Hayes. [ 23 ] At para. 42 of the ITO, Mackenzie deposed that on July 2, 2009, the CPS determined through a check of the Police Information Management System ("PIMS") that Wong had been involved in two occurrences where he is listed as an accused in drug trafficking in December of 2001 and in November of 2007. Those events are described in more detail below. [ 24 ] Shiplett issued the Original Warrant on July 2, 2009, and it was executed at the Residence that day by members of the CPS.

The CPS seized $171,841 in Canadian (“Cdn”) currency and $6,583 in United States (“U.S.”) currency. The currency was scattered among various locations inside the Residence, with some $149,710 Cdn and $5,900 U.S. located in a safe in the bedroom and a further $24,180 Cdn on a speaker in the living room. [ 25 ] The CPS also seized a copy of a residential tenancy agreement identifying Wong and Ms. Huang as tenants of the Residence. (

c) The Charges and the RO [ 26 ] Ms. Huang and Wong were charged with possession of property obtained by crime pursuant to

section 354 of the Criminal Code of Canada (the " Criminal Code ") Ms. Huang notes at para. 67 of her brief that the federal Crown Prosecutor withdrew that charge on the date set for trial. She goes on to state that, at that time, the Crown indicated that they intended to pursue forfeiture of the seized currency via section 490(9) of the Criminal Code ; however, the Crown later abandoned that application once the Minister secured his Ex Parte Restraint Order. [ 27 ] The Minister made application for the RO. The RO was granted on an ex parte basis by Justice Strekaf on August 4, 2010.

The RO directed that $186,321.92 Cdn., seized from the Residence, be deposited with the Clerk of the Court, pending an application, which the Minister intended to bring, for forfeiture of the Offence Related Property.

[ 28 ] Affidavits from each of Sergeant Stephen Scott and Mackenzie, both dated July 22, 2010, were considered by Justice Strekaf in granting the RO. III. Nature of and grounds for relief sought by Ms. Huang (

a) Relief Sought [ 29 ] Before the Minister may proceed with his application for forfeiture of the Offence Related Property, the application for review of the RO must take place. Ms. Huang commenced her application for review of the RO by Notice of Motion [tab 1 of Ms. Huang's Book of Supporting Materials]. In her Notice of Motion, Ms. Huang seeks: 1. revocation of the RO; 2. return of the Offence Related Property; and 3. compensation for costs resulting from the restraint of the Offence Related Property. [ 30 ] Justice Phillips granted a Consent Order dated November 8, 2010, pursuant to which inter alia : 1.

Any interest in the Offence Related Property belonging to Wong was forfeited; and 2. Offence Related Property in the amount of $26,689.92 Cdn., to which Ms. Huang asserts no claim, was forfeited to the Minister. Accordingly, Ms. Huang seeks return of Offence Related Property in the amount of $159,630.00. [ 31 ] Her Notice of Motion sets forth grounds for her application for review. It states as follows: AND FURTHER TAKE NOTICE that Yen Chen Huang is seeking an Order revoking the restraint and declaring that the seizure of the Property was illegal and contrary to

section 8 of the Charter of Rights and Freedoms . Yen Chen Huang is seeking an Order excluding all evidence relied upon by the Applicant that was obtained in a manner contrary to the Charter of Rights and Freedoms pursuant to section 24(2) of the Charter . AND FURTHER TAKE NOTICE that this motion is made on the grounds that: 1. The restraint and seizure of Yen Chen Huang's property was unlawful and unreasonable because the evidence filed in support of the application was obtained in breach of

section 8 of the Charter of Rights and Freedoms . (

b) The VRCPA [ 32 ] Review of the RO is governed by the provisions of the VRCPA .

Section 8 of the VRCPA provides as follows:

Review of restraint order 8(1) A request for a review of a restraint order must be supported by an affidavit by the person requesting the review setting out (

a) any evidence with respect to any matters before the Court that were not before the Court at the time of the granting of the restraint order, and (

b) any other matters that the affiant considers relevant to the request for the review.

(2) On conducting a review of a restraint order, the Court may do one or more of the following: (

a) confirm the restraint order; (

b) revoke the restraint order and order that the restrained property be returned to any person that the Court considers appropriate and may provide for compensation for actual loss, if any, resulting directly from the restraint of the property; (

c) vary any of the terms of the restraint order if the Court considers it appropriate in the circumstances to do so; (

d) direct the release of all or a portion of the restrained property if there is deposited with the Court a sum of money or other security in an amount that the Court considers appropriate to take the place of all or a portion of the restrained property; (

e) make any ancillary order that the Court considers appropriate in the circumstances; (

f) subject to

section 48, award costs in respect of the review and, if the Court considers it appropriate in the circumstances, provide for the payment of expenses incurred in respect of the property as a result of the restraint order.

(3) Notwithstanding anything in this section, the Court may dismiss an application for a review of the restraint order if the Court, on considering the supporting affidavit or other representations made to the Court, is satisfied that (

a) the evidence before the Court with respect to the application to review the restraint order is the same or substantially the same as the evidence that was before the Court at the time of the granting of the restraint order, or (

b) there is not sufficient reason set out in the affidavit to cause the Court to vary or revoke the restraint order. [ 33 ] Section 8(1) requires Ms. Huang to support her request for a review of the RO by Affidavit. That Affidavit must set out (1) any evidence pertaining to the review which was not before the Court at the time of granting the RO and (2) any other matters that Ms. Huang considers relevant to the review of the RO. [ 34 ] The Minister asserts that Ms. Huang has failed to meet the requirements of

section 8 of the VRCPA . He alleges that Ms. Huang’s Affidavit, found at Tab 1 of her Book of Supporting Materials, does not comply with the requirements of section 8(1)(

a) because it discloses no new evidence.

[ 35 ] The Minister quotes from the decision in Alberta v Pazder , 2009 ABQB 450 . At paragraph 17, the Court noted as follows: The first issue which arises is whether the Applicant has submitted evidence which was not before the issuing. [ 36 ] I do not believe that decision to stand for the proposition that a review of a restraint order cannot proceed unless Ms. Huang has produced an affidavit reflecting “new” evidence. It simply requires new evidence, if any , to be set forth in such an affidavit. [ 37 ] There is a difference between (

i) requiring any “new” evidence to be set forth in an affidavit and (ii) requiring the production of “new” evidence as a condition precedent to introduction of a restraint order review. I believe section 8(1)(

a) is directed at (

i) but not (ii). [ 38 ] Section 8(3) of the VRCPA contemplates that this Court may, having considered submissions from Ms. Huang and the Minister, dismiss the application if the evidence before the Court is substantially the same as the evidence before the Court at the time the restraint order was granted. That

section does not provide that an application for review cannot proceed without new evidence. It states that an application may not succeed without new evidence. [ 39 ] If I am wrong and Ms. Huang is required to file an affidavit setting forth “new” evidence that “new” evidence would be found at clause 5. where she states: I believe that the police unlawfully entered and searched my home at [...]-[...] Garry Crescent on July 2, 2009.

I further believe that the police unlawfully seized my property; and at clause 6. where she states: That I swear this Affidavit in support of my application to review the restraint order issued with respect to my property seized by the Calgary Police Service on July 2, 2009 pursuant to

section 19.7 of the Victims Restitution and Compensation Payment Act and

section 8 and 24(2) of the Charter of Rights and Freedoms . [ 40 ] The “new evidence” set before the Court on review of the RO, would be evidence of a breach of Ms. Huang’s

section 8 Charter rights. [ 41 ]

Section 19.7 of the VRCPA is virtually identical to

section 8 . It appears in

Part 1.1, which deals with instruments of illegal activity, as opposed to

Part 1, which contains

section 8, and which deals with property acquired by illegal means. The Minister's brief suggests at para. 21. that Ms. Huang's

section references are incorrect because they refer to

Part 1.1 of the VRCPA, rather than the applicable sections in

Part 1. [ 42 ] The Minister is suggesting that Ms. Huang's references are incorrect because her action is an action for review of the RO in connection with property belonging to her which was seized and which, allegedly, is property acquired by illegal means. The Minister infers that her action is not an action under the virtually identical provisions of

section 19.7 because that

section deals with reviews of restraint orders issued in respect of property allegedly constituting an instrument of illegal activity. [ 43 ] Ms. Huang's Notice of Motion does refer to section 8(2) (

f) of the VRCPA , which deals with an award of costs and which is contained in

Part 1 of that Act (property acquired by illegal means). It does not refer to the parallel provisions of

section 19.7(2)(

f) which are contained in

Part 1.1 of that Act (instrument of illegal activity). That fact would suggest that Ms. Huang's brief should have referred to the applicable provisions of

Part 1, dealing with reviews of restraint orders in connection with property alleged to be proceeds of crime.

[ 44 ] However, Ms. Huang may have felt compelled to make reference to various sections of

Part 1.1 in response to the Minister's Originating Notice issued in connection with his application for a forfeiture order pursuant to

Part 1. At page 2, that Originating Notice alleges that Ms. Huang's property was used to carry out an illegal act. That characterization would appear to constitute Ms. Huang's property as an instrument of illegal activity, properly bringing proceedings in respect of it under

Part 1.1 of the VRCPA . In that regard, see the interpretive provisions of section 1(3.1) (

a) of the VRCPA. [ 45 ] I will proceed on the basis that Ms. Huang is seeking a review of the RO under

section 8 of the VRCPA and, to the extent applicable, under

section 19.7 . (

c) Ms. Huang's Challenge [ 46 ] At this juncture, to set the stage for more detailed analysis below, Ms. Huang's argument might briefly be summarized as follows: 1. Shiplett did not have reasonable and probable grounds for issuing the Original Warrant and it was therefore improperly issued; 2. reasonable and probable grounds did not exist for the issue of the Original Warrant because the evidence put before Shiplett in the form of the ITO was, for reasons discussed in detail below, incomplete, inaccurate and misleading; 3. since the Original Warrant was improperly issued, the ensuing search and seizure was unreasonable; 4.

section 8 of the Charter guarantees the right to be secure against unreasonable search or seizure; 5. Charter rights apply with as much force in a civil context (such as forfeiture of property) as they do in a criminal context; 6. since her right to be protected from unreasonable search and seizure has been infringed, she is entitled to seek a remedy under section 24(1) of the Charter ; 7. if this Court concludes that her

section 8 Charter rights were infringed, Section 24(2) of the Charter would allow this Court to decide that the Offence Related Property, seized as a result of an unreasonable search premised on an improper warrant, should have been excluded from Justice Strekaf's consideration of the Respondent's application for the RO. To admit it would, having regard to all the circumstances, bring the administration of justice into disrepute; 8. on review of a restraint order, this Court must excise all references to illegally obtained evidence, leaving the remaining evidence to be evaluated for sufficiency by this Court; 9.

If the Offence Related Property is excluded from evidence in considering whether to grant the RO, there would have been insufficient evidence to grant it; 10. The RO should thus be set aside; and 11. The Offence Related Property should be returned to Ms. Huang. Accordingly, Ms. Huang's procedural path involves:

1. engaging the restraint order review provisions of

section 8 of the VRCPA ; 2. in the course of that engagement, engaging certain protections afforded by the Charter ; and 3. applying the protections afforded by the Charter to effect a specific outcome, being revocation of the RO, in connection with the RO review. [ 47 ] If this Court concludes that Ms. Huang's Charter rights were not breached then the Offence Related Evidence would not be excluded from my review of the RO. In those circumstances, while I could still consider Ms.

Huang's request for review and find the basis for granting the RO somehow deficient, a determination that her Charter rights were not breached upon issue of the Original Warrant would appear to effectively end the analysis, with the validity of the RO being upheld. [ 48 ] It is important, however, to distinguish the standards for (

i) determining the validity of the Original Warrant and for (ii) reviewing the decision to issue the RO. As discussed in detail below, in determining if the Original Warrant was properly issued, I must determine if Shiplett could have issued the Original Warrant had alleged defects in the ITO not been present. [ 49 ] In reviewing the decision of Justice Strekaf to issue the RO, my focus is different. My views regarding the validity of the Original Warrant are not determinative of the issue. [ 50 ] Rather, as noted in Quebec (Attorney General) v.

Laroche , 2002 SCC 72 , at paras 66-67 : The judge must decide whether he or she would have made the same decision as the authorizing judge, having regard to all of the evidence in the judge’s possession following the hearing of the application for review. If the reviewing judge does not share the opinion of his or her colleague, the authorizing judge, the reviewing judge must correct the previous judge’s error. [ 51 ] Ultimately, a review pursuant to

section 8 of the VRCPA results in a determination of the validity of the RO. There is no appeal from that determination.

Section 19 of the VRCRA provides that: Appeal 19(1) No application or order made or step or process taken under this Part, other than a property disposal order or an ancillary order made in respect of a property disposal order, may be appealed.

(2) An appeal under this Part (

a) is to be made to the Court of Appeal, (

b) may be commenced only by a party to the action, and (

c) must be filed and served within 30 days from the day that the order being appealed was served on the party appealing. [ 52 ] At para. 12 of its brief, the Minister argued that Ms. Huang's approach should more properly be characterized as a request for

relief under section 24(2) of the Charter , rather than review of a restraint order under

section 8 of the VRCPA . The Minister frankly acknowledged that characterization as a request for Charter relief might afford opportunities for appeal of this Court's determination which a review pursuant to

section 8 of the VRCPA would not. [ 53 ] This Court takes Ms. Huang's application as it finds it and does not concern itself with how that application might or should have been characterized to facilitate or impede subsequent appellate review. The parties are at liberty to consider what further proceedings they believe might be available to each of them, based on their reaction to this Court's decision. IV. Detailed Submissions of Ms. Huang and the Respondent (

a) Ms. Huang's Submissions [ 54 ] Ms. Huang alleges that the Original Warrant was improperly issued because it was issued upon insufficient grounds. A breach of her

section 8 Charter rights arose upon execution of the Original Warrant. Before considering this argument in detail, it is necessary to consider the threshold question of whether the Charter has any application to these proceedings. (

i) Does the Charter apply in these circumstances? [ 55 ] The Minister, while respecting the determination of this Court in Alberta (Justice and Attorney General) v. Petros , 2011 ABQB 541 (" Petros ") confirming that the Charter does apply to forfeiture proceedings, raises doubt in that regard. [ 56 ] If the Charter does not apply to civil proceedings, Ms. Huang's challenge of the legality of the RO on the basis of

section 8 of the Charter must fail. Her application would be dismissed. [ 57 ] In Petros , the Minister and Mr. Petros disputed the applicability of the Charter in civil forfeiture proceedings taken under the VRCPA . After careful consideration, Mr. Justice W.P. Sullivan concluded at para 37 that: …I find Charter protection and remedies pursuant to s. 24 apply in order to insulate the fairness of civil forfeiture proceedings under the Act. [ 58 ] As noted above, the Minister does not challenge the determination in Petros that the Charter applies to forfeiture proceedings.

Rather, assuming a breach of Charter rights has been found to have arisen in a civil forfeiture matter, the Minister asserts that there remains a distinction between (

i) the policy underlying the manner in which section 24(2) of the Charter should be applied as a remedy in criminal matters and (ii) the policy underlying the manner in which it should be applied in civil proceedings. [ 59 ]

Section 24 of the Charter provides as follow:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction 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 any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 60 ] The Minister asserts at para. 25 of his brief that:

Petros suffers from the fact that previous case law from our Court of Appeal, which we believe to be dispositive of this case, wasapparently not brought to the Court's attention. In R. v. Daley [2001 ABCA 155], the Court of Appeal held that the Charter applies toforfeiture proceedings brought under the Criminal Code but took care to distinguish the significance of unlawful search in proceedingswhere a person is charged with an offence from its significance in forfeiture cases, where only property rights are at issue.

The Courtadmitted into evidence cash alleged to be proceeds of crime, which had been obtained through a legally unreasonable search. The cashwas forfeited to the federal Crown. [61] It only becomes necessary to consider this argument if a Charter breach is found to have occurred. For reasons which will bediscussed below, I do not find such a breach to have occurred. Therefore it is unnecessary to consider (

i) if evidence obtained as a resultof execution of the Original Warrant should be excluded by virtue of section 24(2) of the Charter or (ii) the possibility of differentialapplication of section 24(2) of the Charter to civil matters as opposed to criminal matters. [62] However, if a Charter breach had occurred, I would not be persuaded by the Respondent's arguments in this regard. Daleywas decided in 2001. At that time, the appropriate protocol for applying the remedial provisions of section 24(2) of the Charter was asarticulated by the Supreme Court of Canada in R. v.

Collins, (SCC), [1987] 1 S.C.R. 265 (“Collins”). That protocol wassuperseded by one articulated by the Supreme Court in the decision in R. v. Grant, 2009 SCC 32 (“Grant”). [63] The protocol articulated in Collins asserted a firm rule excluding "conscriptive" evidence, obtained in violation of the Charter,in circumstances involving an offence.

Daley noted at para. 36 that: It is the conscriptive nature of the evidence which permits the "trial fairness" branch of the Collins test to trump the other two branches.If the evidence is of a non-conscriptive nature, those other branches, seriousness of the breach and the effect of exclusion on theadministration of justice, must then be considered. and at para. 40: The element of trial unfairness must necessarily lose its force when no one is charged with an offence. [64] In applying the remedial provisions of section 24(2) of the Charter, the Court of Appeal allowed evidence seized in violationof Charter rights to be admitted in forfeiture proceedings. [65] The Minister points to the "revised" protocol articulated in Grant which, in applying 24(2), focuses on whether the overallrepute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.

In essence, it advocatesemphasis on a modified articulation of the third of three branches of the Collins protocol, that being the effect of exclusion on theadministration of justice. [66] The "Grant protocol" engages three avenues of enquiry, being: 1. the seriousness of the Charter-infringing conduct; 2. the impact of the breach on the Charter-protected interests of the accused; and 3. society's interests in the adjudication of the case on its merits. [67] The Minister asserts that, in applying the Grant protocol to the application of section 24(2) in an effort to determine if

admitting improperly obtained evidence would adversely affect the overall repute of the justice system, it continues to be reasonable todifferentiate between civil and criminal proceedings. He takes that position because he believes that Grant was decided wholly in thecontext of an action involving criminal prosecution and therefore does not alter the fundamental justification for the Court of Appeal'sview in Daley that, if no criminal proceedings are involved, admission of otherwise improperly obtained conscriptive evidence will notautomatically operate to bring the administration of justice into disrepute.

As noted in para. 37 of his brief: We say that use of evidence in civil forfeiture proceedings is in principle less able to damage the reputation of the justice system in theeyes of a reasonable person. [68] While Justice Sullivan did not find it necessary to discuss the Court of Appeal's reasoning in Daley in his Petros decision, hediscussed it at length in Alberta (Minister of Justice and Attorney General) v. Squire, 2012 ABQB 194 ("Squire").

In that case, alsoinvolving forfeiture, the Crown, pointing to Daley, argued that the factors considered under a section 24(2) analysis do not apply with thesame force when the respondent's liberty is not at risk. [69] His Lordship noted at paragraph [60]: In my view, Daley is distinguishable given the Supreme Court's restatement of the s. 24(2) analysis in R. v. Grant, 2009 SCC 32, [2009]2 SCR 353. Daley was premised on a prior version of the s. 24(2) test set out in R. v. Collins, (SCC), [1987] 1 SCR 265and R. v. Stillman, (SCC), [1997] 1 SCR 607.

The Collins/Stillman framework was explicitly replaced by the Court'sdecision in Grant. [70] My respectful

interpretation of His Lordship's reasoning may be set forth as follows: 1. the reasoning in Daley supported the conclusion that a distinction remains between criminal and civil proceedings in determininghow to apply section 24(2); 2. however, the reasoning in Daley arose in the context of a Collins test which placed primary importance on the significance ofconscriptive evidence in the context of the trial fairness branch of that test; 3. the reasoning in Daley ceased to be applicable when the Supreme Court of Canada replaced the Collins test with the Grant test; 4.

Grant articulated a new paradigm for applying section 24(2); and 5.

Grant did so by shifting the focus away from the predominant consideration of trial process fairness to a new focus, being thequestion of whether or not admission of evidence would bring the administration of justice into disrepute. [71] The following comments of His Lordship, found at para. 63, are particularly worthy of note: Under the Grant paradigm it is difficult to accept the proposition that State conduct somehow becomes less egregious if the judicialcontext changes from criminal to civil, or where an individual's at-risk interest is something other than liberty.

The State's conduct isfixed. [72] Restated, the fundamental question of whether admission of evidence could cause the administration of justice to be broughtinto disrepute need not be confined to circumstances in which an individual's liberty is at stake.

[73] I accept Justice Sullivan's analysis and conclude that application of (

i) Charter considerations relating to the legality ofevidence seizure and (ii) the remedial provisions of section 24(2), apply to civil matters with the same force as in criminal matters. [74] Given that conclusion, I must now consider Ms. Huang's challenge to the legality of the search, and its implications for theevidence seized. (ii) Legality of the Search [75] Ms. Huang asserts that the Original Warrant was invalid. In her view, the ITO presented to Shiplett omitted certain relevantinformation relating to Wong. Consequently, it did not establish sufficient reasonable grounds to believe that Ms.

Huang and Wong wereinvolved in drug trafficking or that there would be evidence of illegal activity at the Residence. [76] She also suggests, at para. 12 of her brief, that Yun's presence at [...] Garry Crescent N.E., Calgary on June 30, 2009, shouldnot have raised sufficient suspicion to justify the Original Warrant authorizing a search of the Residence. [77] Ms. Huang argues that this Court, in its review of Shiplett’s decision to issue the Original Warrant, is required to excisemisleading material in the ITO. [78] What is required to issue a valid search warrant?

A subjective belief, or hunch, do not form the grounds required to issue avalid search warrant. The grounds must be objectively reasonable: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at 250. Asnoted by Sullivan, J. at para. 47 of his decision in Petros, a hunch that ultimately proved correct does not satisfy the test. [79] Ms. Huang draws attention to the words of Justice Fish in the decision in R. v. Morelli, 2010 SCC 8.

She quotes his Lordshipat paragraphs 58-59: When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly carefulnot to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present allmaterial facts, favourable or not…This means that an attesting officer must avoid incomplete recitations of known facts, taking care notto invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. [Emphasis in original.] [80] Ms. Huang also quotes the decision in R. v. G.B., 197 C.R.R. (2d) 294. There, the Court noted at paras. 11-12 as follows: …the obligation of full and frank disclosure means that the affiant must disclose in the affidavit facts known to the affiant which tend todisprove the existence of either reasonable and probable grounds or investigative necessity in respect of any target of the proposedauthorization.

The obligation of full and frank disclosure also means that the affiant should never make a misleading statement in the affidavit, eitherby means of the language used or by means of strategic omission of information. [81] Ms. Huang also quotes from the decision of the Supreme Court of Canada in Hunter v. Southam Inc. (SCC),[1984] 2 S.C.R. 145. There, Dickson J. (as he was then), noted as follows: The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where

credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold forsubordinating the expectation of privacy to the needs of law enforcement. [82] How is this Court to approach its review of Shiplett's decision to issue the Original Warrant? Ms. Huang quotes from theSupreme Court of Canada's decisions in Morelli and in R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421. [83] At para. 40 of the decision in Morelli, the Supreme Court noted as follows: The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible andreliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committedand that evidence of that offence would be found at the specified time and place. [84] At para. 68 of the decision in Garofoli, the Supreme Court noted as follows: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing 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. [85] Based on the discussion above, the following preliminary conclusions seem reasonable.

First, a warrant requires evidence tobe presented to the issuing judge which is both credible and suggestive of criminal activity.

Second, when seeking a warrant, police mustnot proffer an ITO that includes misleading statements or fails to disclose material information (“Defective Information”). [86] Third, doing so compromises the integrity of the warrant because the presence of Defective Information will be an importantconsideration in the reviewing judge's determination of whether the issuing judge had reasonable and probable grounds to issue thewarrant. [87] Fourth, in determining to uphold or strike down the warrant, the reviewing judge must, having corrected for the impact thatDefective Information may have had on the issuing judge, conclude that the issuing judge had reasonable and probable grounds to issuethe warrant. [88] How does the reviewing judge “correct” for the impact that Defective Information may have had on the issuing judge?

Atpara. 55 of its decision in R. v. Araujo 2000 SCC 65 the Supreme Court of Canada cites with approval the approach taken by the NovaScotia Court of Appeal in R. v. Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539 (1998 Carswell NS 489). [89] In that case, Cromwell, J.A., as he then was, delivered the judgment of the Court. He noted at para. 19 that, in deciding iferrors and absence of material make a warrant invalid: This question gives rise to two related issues about the proper basis for the review of the warrant.

The first is whether inaccurate ormisleading material must be excised from the Information to obtain the warrant and its adequacy assessed on what remains. I will callthis the excision issue. The second is whether the reviewing court is (in this case the trial judge) entitled to take into account materialadduced on the review but which was not placed before the issuing justice. I will call this the amplification issue. [90] Cromwell, J.A. offered the following helpful

summary at para 92 of the decision in Morris:

It may be helpful to summarize the principles I have adopted to the review in a s. 8 voir dire at trial of a warrant supported by an Information to obtain which is valid on its face: 1. The trial judge is to determine whether the justice of the peace could have validly issued the warrant; 2. In conducting that review, the trial judge may hear and consider evidence relevant to the accuracy of and motivation for the material included in the Information to obtain a search warrant; 3. Fraudulent or deliberately misleading material in the Information does not automatically invalidate the warrant.

However, it may have this effect if the reviewing judge concludes, having regard to the totality of the circumstances, that the police approach to the prior authorization process was so subversive of it that the warrant should be invalidated. In addition, fraudulent and deliberately misleading material should be excised from consideration; [Emphasis added.] 4. In assessing the validity of the warrant, the trial judge, generally, is entitled to consider all evidence bearing on the existence in fact of reasonable and probable cause shown to be in the knowledge of the police at the time the warrant was sought.

However, such evidence cannot be used if it was obtained by unconstitutional means or (I am inclined to think) to amplify fraudulent or intentionally misleading material in the Information to obtain. [ 91 ] The central question that emerges from the discussion above is whether information in the ITO relating to Wong was misleading, not, to again refer to Morelli at para. 59 , “whether it was intentionally misleading”, and should it therefore have been excluded from Shiplett’s considerations? [Emphasis in original.] [ 92 ] Ms.

Huang’s primary challenge to the ITO is that relevant information relating to Wong was omitted. Those omissions are referred to at para. 57 of her brief as “strategic omissions”, by virtue of which Mackenzie misled Shiplett by failing to provide a full and complete picture of the material facts. [ 93 ] Ms. Huang challenges the ITO at para. 11 and paras. 15 through 17 of her brief, noting that: 1.

Yun, according to an informer, was, as of June 4, 2009, not actively dealing in drugs and would not be doing so until police attention on him became focused elsewhere; 2. a search of Wong's residence in 2001, while yielding cocaine on Wong's person, did not result in conviction of Wong for any offence relating to this incident; and 3. a search of Wong's residence in 2007, while yielding cocaine and $99,000 in cash, ended with the Crown staying all charges against Wong and return of cash in the amount of $75,546. [ 94 ] At para. 42 of her brief, Ms.

Huang offers eleven reasons why she believes there to have been a lack of objective grounds to issue the Original Warrant. They include the following: 1. Much of the ITO involves a description of Bobby Yun's activities. He did not live at the Residence. He did not frequent the Residence. The police had no information to link him to the Residence. 2. Police informants had indicated that in June of 2009, Yun had suspended his drug trafficking activities because he believed he was under investigation.

3. There was no information to suggest that Ms. Huang or Wong were involved in drug trafficking on or around July 2, 2009. 4. There was no information or evidence to suggest that illegal drugs were present at the Residence. 5. There was no surveillance of the Residence suggesting that there were illegal drugs in the residence on the day the Original Warrant was executed. 6. There had been no complaints to the police about illegal activities at the Residence. 7. On June 30, 2009, the police did not follow Yun to the Residence after he entered the building. 8.

The police do not know what was in Yun's man bag and did not arrest him or search the man bag. 9. Yun exiting Wong's car and getting back into his car, five minutes after entering the building, was not suspicious because it took place in the middle of the street and appeared to involve no exchanges of anything visible to police. 10. Despite being found in possession of cocaine and large sums of cash, Wong, though charged with trafficking and possession of the proceeds of crime in 2007, was not convicted and a significant portion of this cash, being $75,546 of $99,000, was returned to him. 11.

Wong's possession of a small amount of cocaine in 2001 does not lead to a reasonable inference that drugs or other evidence would be in the Residence on July 2, 2009. [ 95 ] Ms. Huang asserts that Shiplett, had he acted "judicially", could not, based on the above considerations, have been satisfied that there were reasonable and probable grounds to believe that illegal drugs, money or other evidence would be found at the Residence. [ 96 ] Ms. Huang alleges that the ITO was obtained, in large measure, as a consequence of “strategic omission” by the police.

The alleged strategic omission arose in connection with items 10 and 11 above and in connection with their failure to advise Shiplett of the exact amount (or denominations) of money they noticed in Wong's residence when they attended there at a domestic dispute in January of 2009. [ 97 ] With respect to item 10, Ms. Huang alleges that police strategically omitted to advise Shiplett that charges arising in connection with Wong's possession of cocaine were stayed and that approximately ¾ of this cash was returned. With respect to item 11, Ms.

Huang alleges that police strategically omitted to advise Shiplett that Wong was not convicted of the offence arising from the fact that 2.2 grams of cocaine were found on his person. [ 98 ] Ms. Huang's plea to set aside the RO succeeds or fails, depending on the efficacy of the ITO. Ms. Huang's brief indicates at para. 55 that: In considering the ITO, the reviewing judge examines the whole of the document and does not focus upon an isolated passage or paragraph. The reviewing judge examines what remains after "excision" to determine if the order "could" still have been issued.

Furthermore, where a warrant's issuance was based on Charter violations, that warrant will be invalid. [ 99 ] At para. 48 of the Minister’s brief the Minister challenges Ms. Huang’s characterization of the contents of the ITO as they relate to Wong.

[ 100 ] The Minister takes the position that statements regarding Wong at subparas. a., b., c. and d. of para. 42 of the ITO are not misleading.

The Minister argues they simply state the fact that: 1. at para. 42.a., Wong was accused of drug trafficking; 2. at para. 42 b., in 2001, Wong was in a residence found to have over a kilogram of cocaine and personally had 2.2 grams of cocaine in his pocket; 3. at para. 42 c., police searched his residence in 2007 finding 85 grams of cocaine and approximately $100,000 in cash; and 4. at para. 42 d., police found three inch thick stacks of cash in his home in 2009. [ 101 ] I agree. These statements are factually correct. Ms. Haung does not dispute that fact. Mindful of the quotations earlier from Morelli and R .v.

G.B ., I do not believe that the ITO was misleading, intentionally or otherwise. Both Wong and Yun had documented histories of involvement in the illegal drug trade. Mackenzie was an experienced officer with a keen understanding of illegal drug transactions. The evidence presented to the issuing judge was credible and highly suggestive of criminal activity. [ 102 ] Additionally, the allegedly misleading information contested by Ms. Huang formed only a small part of the relevant facts used by Shiplett to authorize the Original Warrant.

Taken together, the 19 pages of (otherwise uncontroverted) detail in the ITO are strongly suggestive of the existence of evidence to be found in the Residence on July 2, 2009 that would implicate Yun in the possession of cocaine for the purpose of trafficking. [ 103 ] More particularly, the uncontroverted detail included in the ITO would have established to Shiplett's satisfaction that: 1. Mackenzie was experienced in the policing of drug trafficking and related criminal activity and in identifying the indicia of such activity; 2.

Mackenzie would have relied on information from a number of officers actively involved in policing in formulating his beliefs; 3. Mackenzie would have availed himself of a number of databases in his attempts to confirm details which might support the notion that evidence of criminal activity was present in the Residence; 4. Mackenzie relied on information from two confidential informants who have provided accurate information in the past; 5. Mackenzie was, through various investigations, able to reliably conclude that Yun was actively involved in criminal drug activity; 6.

Wong, though not convicted of a drug offence, had been implicated in activities involving illegal drugs on two prior occasions; and 7. Wong's interaction with Yun on June 30, 2009 would, in the context of Yun's past drug related activities and Wong's previous interactions with police in the context of drug related activity, lead to a reasonable and probable conclusion that controlled substances and/or proceeds of crime would be found in the Residence.

[ 104 ] The ITO was not misleading, intentionally or otherwise. Accordingly, because the police had sufficient and credible grounds to obtain a search warrant for the Residence, I am unable to find that Ms. Huang's

section 8 Charter rights have been infringed. [ 105 ] If the ITO is not misleading I need not apply the process of excision to comments in the ITO regarding Wong, as the protocol articulated by Cromwell, J.A. in Morris , might otherwise require. [ 106 ] However, were I required, for purposes of my review of Shiplett’s decision to issue the Original Warrant, to excise para. 42 of the ITO to properly address Defective Information, I conclude, based on the excised ITO (“Amended ITO”) that: 1. Shiplett: (

a) could (as contemplated in Garofoli ) have issued the Original Warrant; and (

b) would (as contemplated in Morelli ) have had before him sufficient credible and reliable evidence to permit him to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the Residence on the day the Original Warrant was executed, had he based his decision on the Amended ITO; and 2. the need, as articulated in Southam , to ensure that warrants are only issued if there is credibly-based probability, would, in my view, have been fulfilled had Shiplett had before him the Amended ITO. [ 107 ] The Amended ITO, corrected for allegedly Defective Information, would, in my view, have alerted Shiplett to sufficient credible and reliable evidence.

As stated above, the Amended ITO would have provided Shiplett with 19 pages of uncontroverted detail relating the ongoing police investigation into, and lengthy criminal histories of, Yun and Wong. This information alone not only could have, but almost undoubtedly would have been sufficient to permit Shiplett to issue the Original Warrant. (iii) The Right To Privacy [ 108 ] I now turn to Ms. Huang's assertion that her

section 8 Charter right to privacy has been infringed because police improperly divulged to the Minister information about her obtained in furtherance of a criminal investigation. [ 109 ] As noted above, Ms. Huang alleges that disclosure of this information to the Minister was improper because it was utilized by the Minister for a purpose unrelated to the enforcement of criminal law.

More specifically, she asserts that the Original Warrant was defective because the police failed to advise Shiplett that they intended to turn information seized over to the Minister for use in civil forfeiture proceedings. [ 110 ] Ms. Huang asserts at para. 66 of her brief that warrants are issued to obtain evidence of a crime, not to pursue civil actions. [ 111 ] I accept that observation but would note that Section 4(2) (

c) of the VRCPA specifically contemplates that an application for a restraint order must be supported by an affidavit deposing, inter alia , to “the illegal act this is alleged to have been carried out that resulted in the property being acquired by illegal means”.

[112] Accordingly, the existence of an illegal act is a necessary condition for the application of legislation which provides for a civilremedy (restraint order). Therefore, it cannot be the policy of the Alberta Legislature that evidence obtained in connection with what isthought to be criminal activity must not be used to pursue a civil remedy. On the contrary, section 4(2)(

c) of the VRCPA and, as pointedout in the Minister’s brief at para. 27, section 3(2) of the VRCPA, specifically require for their application the existence of an illegal actand the submission of details pertaining to that illegal act. [113] It should be noted that actual criminal charges are not required to find the existence of an illegal act, and are, accordingly, notrequired for the Minister to bring an action under the VRCPA. As stated by Justice MacLeod at para. 4 of (Alberta (Minister of Justice)v. Chau, 2010 ABQB 758: "The Act expressly does not require that the owner of the interest to be forfeited be charged or convicted". [114] Ms. Huang’s

interpretation would effectively render inoperative the provisions of sections 3(2) and 4(2)(

a) of the VRCPA. Sheasserts at para. 66 of her brief, that failing to advise Shiplett that evidence acquired would be used in a civil proceeding seriouslyundermines the integrity of the prior judicial authorization process and that failure to advise the issuing justice that the informationgathered will be used for a civil claim also represents non-disclosure of a material fact and breaches Mackenzie's duty of full disclosure. [115] I have difficulty accepting the categorical nature of this observation because: (

a) no authority is cited for these propositions; (

b) no evidence is offered to support the assertion that the police contemplated (let alone knew) that evidence seized in connectionwith a criminal investigation would be used in a civil proceeding; and (

c) even if it is contemplated that evidence seized will be used in civil forfeiture proceeding, the fact that section 4(2)(

c) of theVRCPA requires an illegal act as a condition precedent to the civil remedy of a restraint order implies that the issuing judge may bepresumed to know that a civil proceeding may ensue from evidence seized in a criminal matter. [116] Ms. Huang implies at para. 67 of her brief that the federal Crown's decision to withdraw charges against her, when viewed inconjunction with its decision to abandon its own forfeiture proceedings in circumstances which allowed the Minister to initiate hisforfeiture proceedings, is somehow indicative of a conspiracy which offends rights to privacy.

I assume that the federal Crown and theMinister acted wholly within their jurisdiction in pursuing their respective courses of action or Ms. Huang would have drawn myattention to some contrary authority. [117] Ms. Huang asserts at para. 81 that she has a Charter-protected right to privacy, separate and distinct from her

section 8 right tobe protected from unreasonable search and seizure. During argument, she cited the decision of the Supreme Court of Canada in R.v. Cote2011 SCC 46 , [2011] 3 S.C.R. 215. At para. 72, the Court said:

Section 8 of the Charter protects an individual’s reasonable expectation of privacy. [118] Of course Ms. Haung has a reasonable expectation of privacy and of course an unreasonable search and seizure would infringethat expectation. However, even a lawful search and seizure obviously interferes with a person’s expectation of privacy. That is aninevitable consequence of a search and seizure found not to infringe the

section 8 Charter right to be protected from unreasonable searchand seizure. [119] If a search is justified on reasonable and probable grounds, such that

section 8 of the Charter is not infringed, I know of noreason why use of evidence seized in proceedings under the VRCPA would violate a Charter protected right to privacy. [120] In conclusion, I find that the ITO was not misleading, intentionally or otherwise. Consequently, Shiplett had reasonable andprobable grounds for issuing the Original Warrant. Even the Amended ITO, excised of all allegedly Deficient Information as proposedby the Ms. Huang, would have provided Shiplett with a wealth of uncontroverted evidence detailing the involvement of Wong and Yun

in the illegal drug trade and strongly suggesting the existence of evidence to be found in the Residence on July 2, 2009 that would implicate Yun in the possession of cocaine for the purpose of trafficking. [ 121 ] Accordingly, the search of the Residence was not unreasonable having been executed on the basis of a valid warrant. Evidence thus seized was not improperly obtained. That evidence was properly before Justice Strekaf on application for the RO. The RO is confirmed. Heard on the 2nd day of April, 2012. Dated at the City of Calgary, Alberta this 31st day of July, 2012. C. M. Jones J.C.Q.B.A.

Appearances: Karen Molle and Michael G. Bates for the Applicant (Ms. Haung) Christine Nugent and Roderick Witshire for the Respondent (Alberta Justice)