R v McClean, 2012 ABQB 612

Court of Queen ’ s Bench of Alberta Citation: R v McClean, 2012 ABQB 612 Date: 20121003 Docket: 110415692Q2 Registry: Edmonton Between: Her Majesty the Queen - and - Kory Daniel McClean and Brent Sean McGill Accused Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Voir Dire Ruling of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Mr. McClean and Mr. McGill are jointly charged with 2 offences: 1 - possession of ketamine for the purpose of trafficking

2 - possession of ecstasy for the purpose of trafficking Mr. McClean is charged alone with 1 further offence: 3 - possession of cocaine for the purpose of trafficking Mr. McGill is charged alone with 2 further offences: 4 & 5 - two counts of breach of probation [ 2 ] All the offences are alleged to have occurred on January 27, 2011 in Edmonton. [ 3 ] They all result from a search conducted of the apartment in which both Mr. McClean and Mr. McGill lived. [ 4 ] The search was conducted pursuant to a search warrant issued by Judge Michael Allen of the Provincial Court of Alberta on January 27, 2011.

The search warrant was issued on the basis of evidence contained in an Information to Obtain a Search Warrant sworn by Cst. Thinh Huynh of the EPS before Judge Allen also on January 27, 2011. The warrant authorized the police to search apartment # [...] at 42[...] - 139 Avenue Edmonton. [ 5 ] When the search warrant was executed police found 31 tablets of ecstacy, 37.2 gms of ketamine, and 160 gms of cocaine, and other items which the Crown suggests indicate involvement in drug trafficking, in the bedroom of Kory McClean in the apartment.

They also found 21.1 gms of ketamine, and other items which the Crown suggests indicate involvement in drug trafficking, in the bedroom of Brent McGill in the apartment. [ 6 ] Mr. McClean and Mr. McGill allege that their respective rights to be secure against unreasonable search guaranteed by the Charter s. 8 were violated and that the evidence obtained as a result should be excluded. [ 7 ] The Crown called Cst. Thinh Huynh and counsel for the Applicants was given opportunity to cross-examine him. The Crown also called another police officer who received information from an informer which was included in Cst.

Huynh ’ s ITO. That witness provided some information of a type which had been before Judge Allen but which had been edited from the ITO for the purposes of this application. It had been edited in order to protect the identity of the informer.

The witness was able to provide some part of the information without compromising the protection of the informer ’ s identity. [ 8 ] The Applicants say that the ITO did not contain information sufficient to support the issuance of the warrant – that, on a balance of probabilities, no judicial officer could reasonably have concluded that there were reasonable grounds to believe that a search of the apartment would reveal evidence of possession of drugs for the purpose of trafficking. [ 9 ] The police applied to Judge Allen for a search warrant authorizing searches of two residences.

One was the residence of Sam Lee. The other was the apartment of Mr. McClean. At the time of the application the police did not know of Mr. McGill or that he lived at the apartment. [ 10 ] Much of the ITO was directed to establishing reasonable grounds for a warrant authorizing a search of Mr. Lee ’ s residence. It included information from a police informant called Source KB1, that, among other things: 1. Mr. Lee was involved in trafficking large amounts of cocaine.

2. He lived in a particular Edmonton neighborhood. 3. He supplied drugs to other drug dealers. 4.

He kept his supply of drugs and money at his residence. [ 11 ] The ITO provided information relevant to the assessment of the credibility of Source KB1 including: - that though he has a criminal record, it does not include convictions for obstruction or perjury; - that he had provided information to the police on a previous occasion when a search warrant was obtained and illegal drugs were seized and people were charged; - that he had provided information to the police which had been used in connection with an additional 4 Criminal Code warrants; - that his police contact knows him to have intimate knowledge of the illegal drug trade in Edmonton; and - that he has been compensated for information in the past. [ 12 ] The ITO provided information which police had learned independently from Source KB1 which corroborated the information provided by Source KB1 concerning Mr.

Lee, in particular: - from data base checks, that Mr. Lee lived at a certain address in the neighborhood Source KB1 had identified; - that when shown a photograph of Mr. Lee, Source KB1 identified him as Mr. Lee; - from a data base check, that Mr. Lee had been with a group of men, including Kory McClean, in a disturbance at a bar in April 2010. One of the group had been arrested in 2008 for possession of a controlled substance. Another of the group, Kory McClean, was a subject in a previous drug investigation; and - surveillance notes which indicate that on January 23, the vehicle registered to Mr.

Lee ’ s father arrived at Mr. Lee ’ s house. The Asian male driving it entered the house and 3 minutes later returned to the car and drove to the apartment building where Mr. McClean ’ s apartment is located, and parked. The Asian male and a passenger entered the building and the lights of Mr. McClean ’ s apartment went on. [ 13 ] As to Mr. McClean the ITO evidence indicated that another informer, Source DG1, had informed his police contact that: 1. Mr. McClean is a cocaine drug dealer. 2. Mr. McClean is in possession of an amount of cocaine that he keeps at his residence. 3. Mr.

McClean lives at apartment [...], 42[...] - 139 Avenue. 4. Mr. McClean is supplied his cocaine from Sam Lee who is a high level cocaine trafficker. 5.

Same Lee lives with his parents and drives a blue Honda Civic. [ 14 ] The ITO provided information relevant to the assessment of the credibility of Source DG1, in particular: - his police contact has known him for under 1 year; - he has provided information to his police contact on a previous occasion and his police contact had been able to corroborate it; - the information previously supplied was successfully used to obtain a search warrant; - Source DG1 has a criminal record “ but has not been convicted of Perjury ” ; and - Source DG1's police contact believes that the information provided by Source DG1 is true.

[ 15 ] The ITO also provided information which police had learned independently from Source DG1 which corroborated the information provided by Source DG1 concerning Mr. McClean, in particular: - Kory McClean was convicted in February 2008 of possession of a scheduled substance for the purpose of trafficking and was sentenced to a 20-month CSO; - a data base check indicated that Kory McClean lived at the address provided by Source DG1; - Kory McClean had prior association with Mr. Lee – in October 2009 Mr. McClean had been charged with disqualified driving while operating the vehicle registered to Mr.

Lee ’ s father and Mr. Lee had been a passenger in the vehicle at the time; and - in police surveillance on January 26 Mr. Lee had been seen driving the vehicle to Mr. McClean ’ s apartment. Mr. Lee parked. Mr. McClean exited his apartment and got into Mr. Lee ’ s car. They drove to Costco. Mr. McClean exited the vehicle. Another Asian male exited from the rear passenger side, walked to and got into another vehicle. Mr. Lee and Mr. McClean entered the Costco store. [ 16 ] Cst. Huynh swore that on the basis of this information he believed that Mr. Lee ’ s residence and Mr.

McClean ’ s apartment contained cocaine and cocaine was being processed for trafficking at those premises. [ 17 ] The Applicants submit that on a balance of probabilities the information sworn by Cst. Huynh did not establish reasonable grounds to believe that there was cocaine at Mr. McClean ’ s apartment. They submit that a judge could not reasonably conclude on the basis of the ITO information that a warrant to search the apartment should be issued. [ 18 ] They submit that there was no reasonable basis for concluding that Source DG1 was reliable.

In particular they note: - that though the ITO says that the source either saw what he reports himself, was told what he reports by Mr. McClean or overheard Mr. McClean telling someone else what he reports, the ITO does not indicate by which of these three means the source learned the information. The three possibilities are in decreasing order of reliability. - that there is not much detail in the information provided. Beyond the information concerning the possession of drugs at his home, the information is not of a nature that suggests that the source has close familiarity with Mr. McClean.

The more distant the connection between Mr. McClean and the source, the less reliable the source ’ s information. That the source does not mention Mr. McClean ’ s apartment mate, Mr. McGill, suggests that he doesn ’ t know Mr. McClean very well. It is less likely, therefore, that he knows what Mr. McClean has in his apartment. - that there had not been a long term relationship between Source DG1 and his police contact. Its actual duration is not in the evidence. All that is stated is that it was less than a year in duration.

That could be very short indeed. - that information from the source had been used once before to obtain a search warrant. But there is no information as to whether the information proved to be true. The ITO is silent as to whether the search revealed what the source said it would. - that though the information given as to the source ’ s criminal record says he had no convictions for perjury, there is no indication whether he had been convicted of other offences which involve dishonesty. By contrast the source relied on in respect of Mr.

Lee is said to have had no convictions for obstruction or perjury. - that there is little indication as to when the source got the information he passed on to police. The evidence indicates that the source ’ s police contact got the information from the source between January 24 and January 27. But there is no indication beyond the use of the present tense (Kory McClean is a drug dealer) to indicate that the information is current.

Given numerous errors in the grammar and number agreement between subjects and verbs elsewhere in the ITO, reliance on the use of the present tense as indicating current information is not justified.

- that it is apparent that Cst. Huynh believed that what was observed in the Costco parking lot was a drug transaction. The Crown on this application does not rely on that conclusion. It is to be excluded when considering the sufficiency of the ITO information. The Crown accepts this point. [ 19 ] The Crown observes, in response, that the following features of the information in the ITO provide sufficient basis for Judge Allen ’ s conclusion: 1. Source DG1 obtained his information directly in that he either witnessed it himself, was told it by Mr. McClean or overheard Mr. McClean telling it to someone else.

Though the ITO does not reveal in which of these manners Source DG1 learned the information, and though they may not all be of the same level of reliability, whichever one it was is a direct method. The source ’ s information was not obtained second hand. 2. The information from Source KB1, a source of established reliability, was that Mr. Lee supplied drugs to other drug dealers. This provided corroboration of the first half of Source DG1's statement that Sam Lee supplied drugs to Kory McClean.

That the first half (Sam Lee supplies drugs to other drug dealers) was corroborated, provides some basis for relying on the second half (he supplied drugs to Mr. McClean). 3. The investigation as a whole, as detailed in the ITO, established 4 instances of association over the course of 2 years, between Mr. Lee and Mr. McClean – in particular: 1 - Mr. McClean was arrested and charged with disqualified driving when he was driving the vehicle associated with Mr. Lee and in which Mr. Lee was a passenger in October 2009. 2 - Mr. Lee and Mr.

McClean and several others were involved in a disturbance at a bar in April 2010. 3 - An Asian male who was driving the vehicle associated with Mr. Lee drove to Mr. McClean ’ s apartment, parked, and went into the apartment on January 23, 2011. 4 - Mr. Lee picked Mr. McClean up on January 26, 2011 and they drove to Costco. So there was reasonable corroboration of the source ’ s information that Mr. Lee and Mr. McClean were associates. 4. Mr. McClean was convicted in 2008 of possession of drugs for the purpose of trafficking. This provided a basis for believing that Mr.

McClean could be involved in drug trafficking. 5. The information developed independently of Source DG1 confirmed that Mr. McClean lived where the source said he did. [ 20 ] The Crown submits that these features of the ITO provided a reasonable basis for Judge Allen to conclude that Source DG1's information provided reasonable grounds to authorize the search. It cannot therefore be concluded that on a balance of probabilities the warrant could not be justified. [ 21 ] I agree with the Crown ’ s analysis.

In my view, though the Applicants have shown several bases upon which a judicial officer might conclude that the ITO information did not justify issuing a search warrant, they have not shown, on a balance of probabilities, that a judicial officer could not reasonably come to the conclusion that a search warrant should be issued.

[ 22 ] Put another way, in my view the Applicants have not shown that a judge assessing both the points in favour of concluding that a warrant was justified and the points which question the reliability of the confidential source ’ s information, could not reasonably conclude that the former outweighed the latter, that the source information was not sufficiently compelling, credible and corroborated to justify issuing the warrant. [ 23 ] I conclude therefore that the warrant was properly issued.

There was no violation of the Applicants ’ Charter s. 8 rights. [ 24 ] Counsel also made submissions on the s. 24(2) issue – that is if there was a s. 8 breach would it be necessary to exclude the evidence in order to prevent the administration of justice being brought into disrepute? It is not necessary, however, for me to deal with that issue since I have found there was no s. 8 breach. [ 25 ] I dismiss the application. Heard on the 1 st day of October 2012. Dated at the City of Edmonton, Alberta this 3 rd day of October 2012. Brian R. Burrows J.C.Q.B.A.

Appearances: Ian Fraser for the Crown Michael Danyluik for Kory Daniel McClean Ted Croll for Brent Sean McGill