R v Clow, 2012 ABQB 656

Court of Queen ’ s Bench of Alberta Citation: R v Clow, 2012 ABQB 656 Date: 20121026 Docket: 100384692Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Richard Steven Bruce Clow Dylan Benjamin Pouponneau Accused 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 a Voir Dire of the Honourable Madam Justice S.L. Martin _______________________________________________________ 1.

Introduction [ 1 ] The Accused Richard Stephen Clow and Dylan Benjamin Pouponneau were arrested and charged with one count of possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drug and Substances Act, 1996, c. 19 , the

(“CDSA”) and one count of production of cocaine contrary to section 7(1) of the CDSA. [2] They were charged after the police executed a search warrant issued on March 30, 2010 pursuant to

section 11 of the CDSAat [...] Tarington Close NE, (“the House”). The Calgary Police Service (CPS) found Mr. Clow at that address, as well as 289.6 grams ofcocaine; about $11,00.00 in cash; a BB gun; a note book said to be a score sheet; bowls and pots containing drug residue; and cellphones. The CPS also seized various documents, papers and possessions which appear to tie both Accused to this location. [3] The Accused seek the exclusion of all of this evidence. Both argue that the ITO in support of the search warrant wasdeficient such that this was a warrantless and prima facie unreasonable search in breach of their

section 8 Charter right to be secureagainst unreasonable search and seizure. Both also argue, and the Crown concedes that each was deprived of their right to retain andinstruct counsel for over seven hours, in breach of their

section 10(

b) Charter rights. In addition, the Crown concedes that Mr.Pouponneau was subject to an illegal strip search without reasonable and probable grounds in violation

section 8. [4] I turn first to the impugned warrant and its underlying Information to Obtain (“ITO”). 2. The Sufficiency Of the Information to Obtain and the Legality of the Warrant [5] Both Crown and Defence agreed upon the legal standards and principles against which this ITO is to be assessed. A. Legal Principles [6] Prior authorization, where feasible and usually in the form of a search warrant, is required for a valid search and seizure. [7]

Section 11 of the CDSA states:

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to acontravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlledsubstance, precursor, property or thing and to seize it. [8] The Officer who swears an ITO before an issuing justice is under a duty of full and frank disclosure, like any affiant on an exparte application. The affiant must state its own case fairly and inform the court of any facts or points of law known to it which favourthe other side. At paras. 58 and 59 of R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (“Morelli”), Fish J. addressed the requirement offull disclosure on an application to obtain a search warrant: When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularlycareful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to presentall material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, butnot by material non-disclosure.

This means that an attesting officer must avoid incomplete recitations of known facts, taking care not toinvite 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.) [9] The minimum standard required to authorize search and seizure was stated by Dickson J. in Canada (Director ofInvestigation & Research, Combines Investigation Branch) v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th)641 (“Southam”) at p 167-168: The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point wherecredibility 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. ...

In cases like the present, reasonable and probable grounds,established upon oath, to believe an offence has been committed and that there is evidence to be found at the place of the search,constitutes the minimum standard, consistent with

section 8 of the Charter, for authorizing search and seizure. [10] The standard is therefore reasonable and probable grounds, established upon oath, to believe that an offence has beencommitted and that there is evidence to be found at the place of the search. The reasonable grounds standard also involves the pointwhere credibility-based probability replaces suspicion. [11] In R. v. Morris (1998), 1998 NSCA 229 , 173 N.S.R. (2d) 1 (C.A.), the Nova Scotia Court of Appeal laid out theelements required in an ITO to establish a “credibility-based probability” at para. 30: (

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 a

specified 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 totality ofcircumstances, disclose a substantial basis for the existence of the affiant’s belief: R. v.

Yorke (1992), (NS CA), 115N.S.R. (2d) 426 (C.A.); aff’d (SCC), [1993] 3 S.C.R. 647. [12] A valid search warrant must be based on facts rather than belief. An assertion by the applicant that he or she believes groundsexist to authorize a search warrant is insufficient to grant a warrant. In Restaurant le Clémenceau Inc. c.

Drouin, (SCC),[1987] 1 S.C.R. 706, 42 D.L.R. (4th) 761, the Supreme Court confirmed that a search cannot be authorized based on an assertion ofbelief without the disclosure of information sufficient to substantiate that belief. [13] Despite the expectation that authorities present a well founded, credible and judicious case, an ITO is not required to establishgrounds for a search beyond a reasonable doubt, or prove with absolute certainty that an offence has been committed (see: R. v. Caissey,2008 SCC 65, [2008] 3 S.C.R. 451 (“Caissey (SCC)”)).

Furthermore, an authorizing judge is entitled to draw reasonable inferences frominformation presented in an ITO according to R. v. Durling, 2006 NSCA 124, at paras. 27-28. [14] The Crown and Defence also agree about the role of the justice reviewing the validity of a search warrant. B. Function of the Reviewing Judge [15] A warrant issued by a competent issuing justice is presumptively valid and the onus is on the party challenging it to establishotherwise on a balance of probabilities. In Québec (Procureur général) c.

Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, Lebel J.confirmed this approach at para. 68: The reviewing judge will begin the analysis by recalling that the law regards the authorization as facially valid, and that it is the task ofthe applicant, on review, to demolish that appearance of validity. [16] A judge reviewing the validity of a search warrant does not engage in a de novo assessment, retry the search warrantapplication or substitute his or her view for that of the authorizing judge.

The test to be applied by a judge reviewing the adequacy ofinformation used to obtain a search warrant was articulated by Sopinka J. at para. 68 of R. v. Garofoli, (SCC), [1990] 2S.C.R. 1421, 60 C.C.C. (3d) 161 (“Garofoli”): 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. [17] If there was evidence such that a justice of the peace could have granted the search warrant, the reviewing judge will notgenerally interfere with the decision of the authorizing judge. In the recent Supreme Court decision R. v.

Morelli, 2010 SCC 8, [2010] 1SCR 253 (“Morelli”), Fish J. stated at para. 40: In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably bebelieved on the basis of which the authorization could have issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54(emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether there wassufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place. [18] On review, the reviewing justice must consider the “totality of the circumstances”, according to the Supreme Court of Canadain R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (“Araujo”). [19] Ultimately, the reviewing judge will consider all evidence available to the issuing justice and engage in a contextual analysisof the whole document. This means that the ITO is to be examined as a whole and not one piece of evidence at the time, because eachpiece of evidence colours other pieces of evidence and a fuller picture emerges by considering all of the evidence together. See R. v. Lam2000 BCSC 1820; R. v. Saunders, 2003 NLCA 63 , 2003 N.C.L.A 63, 232 Nfld. & P.E.I.R. 22,, and R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 (“Debot”). [20] As indicated by Charron J.A. (as she was then) at para. 25 of R. v. Grant (1999), (ON CA), 132 C.C.C.(3d) 531, 117 O.A.C. 345, the reviewing judge will not focus on an isolated passage or paragraph of the ITO; instead, courts willconsider the entire document.

Failings within the confines of a single paragraph may be compensated for when considered in the contextof the entire document and weaknesses in one area may be compensated for by strength in others. [21] At para. 54 of Araujo, Lebel J. elaborated on the approach a court should take when reviewing a search warrant: The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from ourCourt cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the

material submitted to the authorizing justice of the peace. These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant. This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiationof the warrant, there remains the need to protect the prior authorization process.

The cases just referred to do not foreclose a reviewingjudge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking priorauthorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventivefunction it serves. [Emphasis added.] (R. v. Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539 (N.S.

C.A.), at p. 553.) An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need forjudicial finality and the need to protect prior authorization systems.

Again, the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, theapplication should have been granted at all by the authorizing judge. [22] In Morelli, Fish J. considered the effect of errors and omissions in an ITO at para. 41: The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace.

Rather,"the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58). [23] The validity of a search warrant does not necessarily rise and fall on the basis of erroneous statements or the failure to disclosematerial facts however. Instead, the reviewing judge is entitled to hear viva voce evidence for the purpose of delving into the validity of awarrant. This process is known as “amplification”.

At paras. 57 and 58 of Araujo, Lebel J. discussed how courts will employamplification sparingly, generally only after erroneous information is excised from the ITO: Where the erroneous information results from a simple error and not from a deliberate attempt to mislead the authorizing judge,amplification may be in order. Nonetheless, there would be no need to seek to amplify the record if sufficient reliable material remainseven after excising the erroneous material.

Thus, in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewingcourt must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplificationmay correct this information. [24] The reviewing judge considers the ITO before the issuing judge in the context of the evidence heard at the review hearing.Any illegally obtained, incorrect or flawed evidence must be excised from the document on review.

The reviewing judge then examineswhat remains after excision to determine if the warrant could still have been issued. [25] Whether information contained in the ITO meets the reasonable grounds standard, is to be approached by a practical, non-technical basis and justices are entitled to draw commonsense inferences from its contents. See R. v. Whitaker, 2008 BCCA 174, [2008] B.C.J.

No. 725 at para.42 (BCCA). [26] If the Information to Obtain a Search Warrant (the “ITO”) is defective, deceptive or lacking to the extent that the issuingjustice should not have issued the warrant, the ensuing search will be unreasonable and in violation of

section 8 (Morelli at para. 97) . C. The Evidence in the ITO [27] The ITO was a 26 page document sworn by Constable Jason Schindel. In it Constable Schindel outlined his experience indrug related investigations and the grounds on which he believed there were reasonable and probable grounds to search the House. [28] While the ITO contains much information, in paragraph 52 Constable Schindel sets out and summarizes his grounds tobelieve that a search of the House will afford evidence to support charges under the CDSA, including possession of cocaine and cashproceeds from trafficking in that substance.

Specifically, Constable Schindel points to the following items: a. This investigation began based on confidential source information in regards to drug trafficking which has proven to becorroborated. b. Source A provided information that “Ricky” Clow is a male who is a drug dealer. Through PIMS (Police InformationManagement System, a CPS computer databank containing data from all occurrences reported to the CPS for which a report has beensubmitted) it has been corroborated that Richard Clow is known as Ricky Clow. c. Source A stated that Mr. Clow is in his twenties.

Through PIMS and CPIC (Canadian Police Information Centre, a nationalrepository for police information within Canada) it has been corroborated that Mr. Clow was born [...], 1988, making him 20 years old. d Redacted e. On December 8, 2008, members of the District 4 Special Duties Team (“4 SDT”) observed an “exchange” between Mr. Clow andan Asian male in an Infiniti bearing Alberta license plate KAX[...]. Constable Schindel said “ this exchange is consistent with an ouncelevel cocaine deal.” f. Source B stated that Mr. Clow drives a silver Acura RSX (“RSX”).

This has been corroborated by a PIMS query and observationsof members of 4 SDT.

g. Source B stated that Mr. Clow is a black male, skinny, approximately 5'9" or 5'10" and approximately 25 years old. This has beencorroborated by a PIMS query and the observations of members of 4 SDT. h. Source B was shown a photograph of Mr. Clow and confirmed that he was the male known as Ricky. i. Redacted h. Redacted j. Source B indicated that Mr. Clow is a drug trafficker. Constable Schindel states this has been corroborated by the observations ofthe 4 SDT, although he offers no specific observations or evidence in support of this claim. k.

On March 29, 2010, members of 4 SDT observed an Asian male exit [...] Manora Drive NE with Mr. Pouponneau. Both maleswere observed entering the House. The Asian male exited the House, entered a grey 1994 Ford Explorer, and was observed on twoseparate occasions involved in activity consistent with drug trafficking. l. Constable Schindel stated that the activity observed at [...] Manora Drive NE by the 4 SDT on March 29, 2010 and a PIMS queryare consistent with a stash house. [29] The ITO also describes surveillance observations from March 29, 2010 involving Mr. Clow’s RSX.

On that date, ConstableSchindel alleges that Mr. Clow’s vehicle was involved in a drug transaction. [30] Finally, the ITO refers to an anonymous tip made to the drug information hotline on July 10, 2009. The tipster reported whatappeared to be a drug deal involving Mr. Clow’s RSX. The tipster witnessed two vehicles pull into the far corner of a parking lot. Aperson who appeared to be a “crack-head” came out of the first vehicle and went into the RSX. [31] The evidence offered by Constable Schindel in the ITO is thus of two different types, although both are to be consideredtogether.

First, he offers information provided by two different confidential informers (“CIs”). Second, he points to the observations of 4SDT officers obtained between 2008 and 2010 as supportting the CI information. Constable Schindel also draws on his experience inover 40 drug-related investigations in both undercover and surveillance capacities, stating that a drug trafficker’s residence will usuallycontain drugs, paraphernalia and money and asserting that certain observations are consistent with a drug “transaction” or “exchange”.Essentially, Constable Schindel alleges there is a nexus between Mr.

Clow, the House and the trafficking of prohibited substances. D. Issues [32] Given the above authorities there are therefore numerous ways to frame the relevant issues: based on Araujo, was therereliable evidence that might reasonably be believed on the basis of which the authorization could have issued ? Based on the totality ofthe circumstances does the evidence revealed in the ITO meet the statutory requirements set out in

section 11 CDSA for issuing thewarrant? Does the ITO disclose reasonable and probable grounds to believe the items listed in the ITO would be found at the targetedhouse? Does the ITO contain some evidence that might reasonably be believed to support the issuance of the warrant? Does the ITOsworn by Constable Schindel, excised of any misleading or erroneous information, altered so as to include any relevant informationimproperly omitted, and amplified, if necessary, on review, provide the reasonable grounds required to issue a warrant for a search of theHouse? E.

The Arguments of the Parties [33] The Accused attack the ITO on the grounds there was no reliable evidence for issuing a search warrant of the House and theITO failed to disclose the requisite reasonable grounds to justify the issuance of a search warrant. The Accused argue the information inthe ITO was vague, dated, and not credible, compelling or corroborated. Specifically, the Accused point to information in the ITOprovided by CIs of unspecified credibility and reliability.

Additionally, the ITO contained police surveillance evidence revealing noevidence of suspicious or illegal activity taking place in respect of the House. They claim the resulting search of the House wasconducted without warrant or other lawful authority, and is accordingly contrary to

section 8. [34] The Crown argues that while the ITO is not perfect, it is sufficient when examined in totality and contains reliable evidenceon which the issuing Justice of the Peace could have issued the warrant. F. Analysis of the Information Obtained from Informers i. Legal Principles [35] Typically, as in the case at bar, ITOs present two types of information: confidential informer statements and policesurveillance evidence.

A critical aspect related to the review of a search warrant, and a contested issue in the case at bar, is theassessment of CI information. [36] A great deal of jurisprudence provides guidance on how to assess the reliability of informant evidence in the totality of thecircumstances. In Debot, Wilson J. endorsed the approach of Martin J.A. in his judgment from the Ontario Court of Appeal (R. v. Debot(1986), (ON CA), 30 C.C.C. (3d) 207, 26 C.R.R. 275, 17 O.A.C. 141) (“Debot (ON CA)”). In that case, Martin J.A.stated at para. 17:

I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable groundsfor conducting a warrantless search or for making an arrest without warrant.

Highly relevant to whether information supplied by aninformer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer's "tip"contains sufficient detail to ensure that it is based on more than mere rumour or gossip, whether the informer discloses his or her sourceor means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the pastor confirmation of part of his or her story by police surveillance. [37] Wilson J. added at para. 53, that certain factors that should be considered when a tip comes from a source outside of thepolice: First, was the information predicting the commission of a criminal offence compelling?

Second, where that information was based on a"tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, Iconcur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness.

Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [38] Wilson J.’s “three C’s” - compelling, credible and corroborated - form the backbone of any assessment of informer evidence. [39] Reviewing the Court’s decisions in Debot and R. v. Greffe, (SCC), [1991] 1 S.C.R. 755, 75 C.R. (3d) 257, atparas. 81 to 86 of Garofoli, Sopinka J. drew the following principles governing the assessment of the reliability of information receivedby police: (

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

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

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

c) indicia of the informer's reliability, such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [40] In assessing the reliability of information disclosed by the informant, courts will consider a variety of factors.

Martin J.A. setout some of these considerations in Debot (ON CA), at 218, which were subsequently approved by the Supreme Court of Canada inDebot, supra: Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide thenecessary "reasonable ground to believe" to justify the granting of a search warrant (...) On an application for a search warrant, theinformant must set out in the information the grounds for his or her belief in order that the justice may satisfy himself or herself thatthere are reasonable grounds for believing what is alleged (...) Consequently, a mere statement by the informant that he or she was toldby a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be aninsufficient basis for the granting of the warrant.

The underlying circumstances disclosed by the informer for his or her conclusion mustbe set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged (...)Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrestwithout warrant are whether the informer's “tip" contains sufficient detail to ensure that it is based on more than mere rumour or gossip,whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such asthe supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.

I do not intend to implythat each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of thenecessary reasonable grounds for belief. [41] A key concern is whether CI information, especially information provided by potentially unreliable sources such as first timeCIs, is corroborated by other sources of information. Doherty J.A. of the Ontario Court of Appeal stated at para. 19 of R. v.

Lewis (1998), (ON CA), 122 C.C.C. (3d) 481, 38 O.R. (3d) 540: Absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by anuntested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search. [42] Similarly, the Alberta Court of Appeal in R. v. Caissey, 2007 ABCA 380, 84 Alta.

L.R. (4th) 226 (“Caissey”), held at para.16: On a review that challenges the validity of a search warrant, it may be necessary to inquire into the source and quality of the informationprovided to the police at the time of the search in order to establish that there were reasonable and probable grounds for the search. Mereconclusory statements by an informant are insufficient to constitute reasonable and probable belief. [43] The Court differed, however, on the extent to which corroborating evidence must substantiate CI information. At paras. 22 -23, the majority held:

Reliability of an informant may be established by past performance as an informant or by confirmation from other investigative sourcesof part, or all, of the information provided by the informant. ... The issue on review is whether there was some evidence that might reasonably be believed to support the issuance of the warrant, notwhether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity. Information of acrime itself being committed does not have to be confirmed: Koppang at para. 8.

I agree with the comments of Doherty J.A. in R. v.Lewis (1998), (ON CA), 38 O.R. (3d) 540, 107 O.A.C. 46 (Ont. C.A.) at para. 22: In concluding that the totality of the circumstances did not provide reasonable grounds for an arrest, I do not suggest that there must beconfirmation of the very criminality of the information given by the tipster.

The totality of the circumstances approach is inconsistentwith elevating one circumstance to an essential prerequisite to the existence of reasonable grounds. [44] In his dissent, Martin J.A. disagreed and proposed that corroborating evidence must establish that the accused was committingan offence. On appeal, the majority’s position was adopted by the Supreme Court in Caissey (SCC), where the Court held at para. 2: The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessaryassurance for the issuance of the warrant.

This is the question of law that brings the appeal before us. On this issue, we agree with thetest adopted by the majority. [45] The Alberta Court of Appeal recently considered the validity of a search warrant based solely on information provided by a CIin R. v. Dionisi, 2012 ABCA 20 (“Dionisi”). In that case, the CI told the police handler that the Accused trafficked in ounce-levelquantities of cocaine, which he allegedly sold for around $1500. The CI also provided information pertaining to the Accused’s height,weight, racial background, hair colour and style, address, phone number and vehicle.

This information was independently corroboratedby police. The redacted ITO also stated that cocaine was observed in the Accused’s residence, although the ITO did not state when or bywhom.

Finally, the ITO provided information relating to the Accused’s 2004 involvement in a drug investigation, in which 287 grams ofmarijuana, scales and bundles of cash were seized from the Accused’s home, although the Accused was never charged. [46] In Dionisi, the trial judge held that the warrant was invalid and that the search thus breached the Accused’s s. 8 rights.However, the trial judge found that the evidence was admissible under the test set out in R. v. Grant, 2009 SCC 32, 245 C.C.C. (3d) 1(“Grant”).

While the Court of Appeal agreed that the evidence was admissible, it also held at para. 3 that the trial judge erred in finding abreach of

section 8. The Court took issue with the trial judge’s focus on supposed ambiguities in the ITO and the emphasis placed on thefailure of the ITO to clearly state when or whom had observed cocaine in the Accused’s residence. The Court held at para. 22 that “therewas no foothold for the assumption that the information was second-hand.

Even if it were second-hand, the police experience with theinformant was such that his information had been found to be reliable in the past.” The Court also considered the issue of when thecocaine had been observed, noting, again at para. 22, that “there is no rule as to how recent information has to be in order to be relevant.” [47] That being said, more recent information is obviously more persuasive than older, out-of-date evidence. Still, olderinformation is not necessarily indicative of a faulty ITO.

Dufour J. of the Saskatchewan Court of Queen’s Bench canvassed case lawrelating to the issue of timing in R. v. Wonitowy, 2010 SKQB 346, 358 Sask. R. 303, and concluded at para. 37: It is not just the number of days or weeks or months that have elapsed since the date of the most recent evidentiary basis in the ITO thatis determinative.

The currency of the information is but one factor to be considered in the totality of the circumstances of each particularcase. [48] The question a court must determine then is whether there is, to borrow a useful phrase from para. 5 of the Ontario Court ofAppeal’s decision in R. v. Soto, 2011 ONCA 828, 99 W.C.B. (2d) 94, “an obvious nexus among a person, drug and location”. In thatcase, the appellant alleged that a tip from a CI was neither compelling nor sufficiently corroborated.

However, in addition to the tip, theITO included surveillance evidence of the appellant leaving his building, getting into a car and engaging in what police believed to betwo hand-to-hand drug transactions. The Court dismissed the application finding that the CI was credible and that police surveillanceconfirmed many of the factual details provided by the CI. [49] Similarly, Ross J. of this Court, found at para. 67 of R. v.

Elkadri, 2008 ABQB 55, [2008] A.W.L.D. 2776, that extensivecorroboration of a Crimestoppers tip that included some compelling information but nothing to support the credibility of the anonymousinformant, was sufficient to form the reasonable grounds required to grant a search warrant. In that case, the ITO included surveillanceevidence in which police observed a man leave the Accused’s apartment and engage in a series of drug transactions.

With regards to thequality of surveillance, Ross J. noted at para. 28 that “(t)he notes and the officers' recollections did not indicate that any hand-to-handtransactions, passing drugs or cash, were observed at any time.” Ross J. determined that such highly detailed observations were notrequired, noting at para. 70: These observations, in the opinion of the police witnesses including Constable Thomas, who were familiar with drug investigations,were, as stated in the ITO, "very consistent with a dial-a-dope operation." These observations corroborated the most crucial part of theinformation, that relating to the criminal activity itself.

Even though no hand-to-hand exchanges were observed, this series ofobservations easily meets the standard of a "sequence of events actually observed [that] conforms sufficiently to the anticipated pattern toremove the possibility of innocent coincidence.": R. v. Debot, supra, at 1172.

Considering the totality of the circumstances, theinformation provided by the anonymous informant was sufficiently compelling, and was sufficiently corroborated, to be credible andproperly included in the ITO. [50] A more reliable CI providing more detailed information may require less substantial surveillance evidence to corroborate

allegations in an ITO. For example, in R. v. Nguyen , 2008 ABQB 721 , 462 A.R. 240, a CI provided detailed information regarding “the composition of the drug trafficking group, the make and type of Nguyen's car, and the location of Nguyen's drug trafficking activities” (at para. 361). The CI identified the Accused and police confirmed source information by citing an informal complaint obtained several years prior referring to the Accused as a drug dealer. Police also observed the Accused’s red Corvette at a known drug house, as well as coming and going from a condominium that was alleged to be a stash house.

At para. 361, Graesser J. found these observations to be “suspicious but not on their own conclusive of anything.” Still, the somewhat scant surveillance evidence, when coupled with the CI information, was sufficient to form reasonable grounds. [ 51 ] In contrast, a warrant is on shaky ground when police fail to substantiate weaker CI information with any surveillance evidence. Yamauchi J. of this Court addressed the adequacy of a warrant based almost entirely on CI information of questionable reliability in R. v. Hatton , 2011 ABQB 242 .

At para. 83, Yamuchi J. addressed the lack of corroboration, stating that “(t)he most troubling aspect of this ITO is that the RCMP did not conduct any further investigation into the allegations that Informant A and Informant B provided to them. As mentioned earlier, this is the best way for the RCMP and the justice to evaluate the reliability of the information that third party informants provide.” Ultimately, Yamuchi J. held that the warrant should not have been granted and the search violated the applicant’s

section 8 rights, and that consequently, evidence obtained as part of the search should be excluded under section 24(2). [ 52 ] In order to determine whether the standard of reasonableness has been met, an ITO must be considered in light of the totality of the circumstances. Minor defects in one area may be offset by stronger evidence in other areas. Information provided by CIs must be read in conjunction with surveillance evidence. Highly detailed information from a reliable source may require little corroboration, while general information from an untested source may require extensive surveillance.

Similarly, information from different sources that do not independently form reasonable grounds, may be combined to formulate a compelling factual nexus. Police investigation does not have to confirm or guarantee the existence of criminal activity. Instead, information in the ITO, when considered as a whole, is sufficient if it provides reasonable grounds for the issuing justice to have issued a search warrant. ii. Application of these Principles to this Informer Information [ 53 ] Two preliminary observations.

First, the fact that CPS found articles in the search that were mentioned by Constable Schindel in the ITO is not relevant as the results of the search cannot, ex post facto , provide evidence of reliability of the information. [ 54 ] Second, the case at bar involves tips from two CIs who gave information at different times, an anonymous tip, as well as surveillance evidence from 2008 and March of 2010.

The combination of multiple tips and these two forms of evidence means that the case at bar does not involve a circumstance in which a tip from an informer, by itself, is proffered to establish reasonable and probable grounds. [ 55 ] Source A provided information to CPS on four different occasions between October and December 2008. Source A had provided CPS with information in the past that resulted in the seizure of cocaine and marijuana and cash proceeds.

The information from Source A is summarized at paragraphs 9-12 of the ITO. [ 56 ] In October of 2008 Source A told Constable McKenzie: Ricky Clow, aka George is a drug dealer; Ricky Clow is a black male in his twenties, approximately 5'9"; Ricky Clow drives a red Honda Civic; Ricky Clow has a phone number of 390 4[...]; Ricky Clow lives at [...] Falshire Close NE.; and Ricky Clow is an ounce level dealer. [ 57 ] In November of 2008 Source A told Constable MacKenzie that: Ricky Clow is an extremely active ounce level cocaine dealer; Ricky Clow uses the phone number 390 4[...] to sell cocaine and uses the name George when speaking on the phone and Ricky Clow drives a red Honda Civic. [ 58 ] In November further information was that: Ricky Clow is an extremely active ounce level cocaine dealer; Ricky Clow sells an ounce of crack for $1400; and Ricky Clow uses the phone number 669 2[...] to sell drugs. [ 59 ] In December of 2008 Source A once again told Constable MacKenzie that Ricky Clow was an extremely active one ounce level cocaine dealer who sells an ounce of cocaine for $1500 to $1600. [ 60 ] The information received from Source B is found in paragraph 35 of the ITO.

It was given to Constable Pearson in March of 2010 and includes statements that Ricky is a black guy, skinny, short, shaved hair, approximately 5'9" or 5'10", approximately 25 years old; Ricky drives a silver Acura RSX; Ricky moves a lot of cocaine; and Ricky lives in Taradale.

[ 61 ] The ITO indicates that Source B had never been charged with obstruction or perjury but does not indicate whether Source B had ever provided CPS with reliable information in the past. Source B presumably had no track record with CPS. Constable Pearson showed Source B a photograph of Ricky Clow and Source B confirmed that Richard Clow was the person known as Ricky. [ 62 ] In general, the Accused submit that the ITO was based on vague, dated, and unreliable source information.

They claim that any allegations related to criminal activities of the Accused are nothing but “mere statements” and are not sufficient to grant a search warrant. They claim that CI information was not meaningfully corroborated and that surveillance evidence hardly constituted evidence of trafficking. Given the lack of reliable, credible evidence, the Accused submit that the ITO failed to establish the reasonable grounds needed to grant a search warrant. [ 63 ] There is potentially some confusion in the ITO. Constable Schindel states in paragraph 52(

a) that “This investigation began based on reliable, confidential source information in regards to drug trafficking which is proven to be corroborated”. The Accused argue that the characterization of confidential source information as reliable is unfounded and that there has not been the stated corroboration. In my view this statement is ambiguous. It could be a general statement about a different investigation at a previous point in time that led to the investigation of or at [...] Tarington Close NE. If read this way, there is no real way to test it.

If the affiant is suggesting that the investigation concerning [...] Tarington Close began with informant information that has been corroborated, then for the reasons that follow it overshoots the mark and is misleading. [ 64 ] Constable Schindel also states “I’ve received information relevant to this investigation from two confidential informants”. However, his recitation at paragraph 8 summarizes that Source A talked to Constable MacKenzie and Source B talked to Constable Pearson.

Constable Schindel notes that he believes the information to be true, but makes no representations about his beliefs concerning the credibility of either Source A or Source B. [ 65 ] Both Source A and Source B offered similar information relating to Mr. Clow’s age, race, height, and physique. Such information was all confirmed by PIMS. Some of this information consists of neutral facts, but they are baseline facts and they are at a level of detail, with verified accuracy, to establish at least some minimal level of credibility and reliability. The Police also verified the phone number provided by Source A as Mr.

Clow gave that number to police when he reported a theft from his vehicle. The Police only confirmed the nickname provided by Source A. [ 66 ] Both sources also correctly identify Mr. Clow’s vehicle. In October and November 2008, Source A stated that Mr. Clow drove a red Honda Civic. A PIMS inquiry indicated that Mr. Clow was the registered owner of a 1993 Honda Civic bearing the licence plate #LAN[...] and that same vehicle was observed parked outside [...] Falshire Close NE, seemingly Mr. Clow’s residence during the surveillance period in December 2008. Source B stated that Mr. Clow drives an RSX and indeed Mr.

Clow has been associated with that vehicle since the surveillance period in late 2008. A December 8, 2008 CPIC inquiry indicated that Mr. Clow’s grandmother Donna Foley had registered that vehicle on December 5, 2008. During both surveillance periods in December 2008 and March 2010, Mr. Clow and no one else was seen driving the RSX. Furthermore, a March 25, 2010 PIMS query on the RSX revealed that Mr. Clow had been issued traffic summons on four separate occasions while operating it. Finally, on March 3, 2010, Mr.

Clow attended the CPS District Four Office to report a theft from that same vehicle. [ 67 ] Source B also states that Mr. Clow lives in Taradale. Although Mr. Clow has been connected to different addresses in the past, such as [...] 44 St SE and [...] Falshire Close, surveillance evidence indicates that in March 2010 Mr. Clow had a strong connection to [...] Tarington Close NE, located in Taradale. Mr. Clow is observed coming and going from that address throughout the entire surveillance period in late March 2010. In particular, he moved in and out of the House freely without knocking.

Surveillance evidence supports Source B’s information as to Mr. Clow’s place of residence. [ 68 ] The Accused are correct that the informer information lacks certain of the factors and features identified in the case law that govern the assessment of the reliability of information received by police. Particularly, there is no evidence concerning either informer’s source of knowledge and the CIs do not reveal specific details as to the source or timing of the information.

It is possible that the information from the informers came from direct observation or was close in time to when they provided the information to the police. It is also possible that it is hearsay, perhaps many times removed and far distant in time. However, case law supports the proposition that hearsay statements of an informant can provide reasonable and probable grounds to justify a search. The timeliness of statements is also not determinative. There is no foothold to assume either that the information was direct or hearsay, or either older or new.

Furthermore, there is no basis on which to suggest that the issuing judge did not appreciate the existence of these various possibilities but nevertheless found that, in the totality of the circumstances, the confidential information, as verified by the police record searches and in addition to

the surveillance satisfied the reasonable and probable grounds requirement. [ 69 ] The Accused also point to certain information that is missing. The ITO does not provide any representations about any officer’s belief regarding the credibility of either CI. Specifically, the ITO fails to include particulars regarding the CIs’ criminal records or charges against them, their motives or details as to their reliability, especially with regards to Source B.

For example, the ITO fails to disclose any criminal history or criminal charges involving the informers, and any motive or payment they may have had or been offered, all factors which are often used to help assess credibility. In addition, the Accused argue that the police did not take steps to corroborate certain of the information, like phoning the 390 4[...] number to see whether they could purchase drugs.

Further, the Accused argue that some of the information provided by the sources could not in fact be corroborated. [ 70 ] However, not every factor referred to in the case law must be present and the matter is to be considered taking into account the totality of the circumstances. Source A, who had previously provided reliable information stated that Mr. Clow was an ounce level cocaine dealer.

I find that the degree of detail about the quantity (ounce-level) and price (around $1500 per ounce), while not extensive, provides additional elements that go beyond the mere assertion of criminal activity, rumour or gossip, or the type of knowledge that is commonplace or otherwise available. [ 71 ] The information cited to Source A in the ITO is somewhat dated and stems from nearly a year and a half before the search of the House. None of the information from Source A has any direct bearing on [...] Tarington Close NE or the RSX, although it does clearly involve Mr. Clow, who is associated with both.

The Crown recognizes that this information is somewhat dated and would alone be insufficient to support the issuance of a search warrant. However, the Crown argues that it does establish a pattern of behaviour which is properly part of the overall context and totality of the circumstances. [ 72 ] Further, the case law does not elevate the timing of the information to the status of precondition or determinant. It is one variable in assessing the reliability of the information.

The Accused argue that while the Court of Appeal has stated that timeliness is not an absolute rule, the evidence must be recent enough to satisfy the issuing justice that it is probable the things sought will still be at the location, not that it is possible that they are still there. In the case at bar the information provided by Source A is similar to the more recent information provided by Source B.

This consistency not only shows a pattern, it increases the reliability of the evidence on a probability-based analysis as similar information was obtained from two separate sources at two different times. [ 73 ] The information provided by Source B has less reliability. It would appear Source B is an untried informant with no prior history of reliability. According to Debot , where the police relied on an anonymous tip or an untried informant, the quality of the information and corroborative evidence must compensate for the inability to assess credibility.

Further, much of this information lacks detail and is innocuous in the sense that it could be known by many people. The assertion that Mr. Clow moves a lot of cocaine is very close to a simple assertion of criminal activity: the only detail being the particular type of drug being sold. G. The Surveillance Evidence [ 74 ] The ITO contains surveillance information on Mr. Clow from 2008 and March 2010. [ 75 ] On December 8, 2008 an event was observed by members of 4 SDT at [...] Falshire Close NE. At 1:36 PM, a grey Infiniti SUV driven by a young Asian male parked in front of that address. At 1:37 PM, Mr.

Clow exited the front door, walked directly to the Infiniti, and got inside. At 1:38 PM, Mr. Clow exited the Infiniti with a white Sobey’s plastic bag concealed in his jacket. At 1:39 PM, Mr. Clow re-entered the residence at [...] Falshire Close NE and the Infiniti drove away. In the ITO, Constable Schindel states that these observations are indicative of an ounce level cocaine deal. [ 76 ] A PIMS inquiry from that same day revealed that while the Infiniti was registered to Alicia Burns, it was associated with a Hai Giang, who had received a speeding ticket while driving that motor vehicle in September 2008.

The PIMS inquiry revealed that on February 7, 2008, Giang was arrested for possession for the purpose of trafficking when he was stopped and found to have $44,382.00 and 686.9 grams of crack cocaine worth approximately $68,690.00 and 557 grams of powdered cocaine worth approximately $55,700.00 in his vehicle. [ 77 ] The 2010 surveillance evidence concerned four dates: March 24 and 25, and March 29 and 30. In the voir dire the court heard from various members of 4 SDT, who testified to the movements of both Accused and the RSX and Ford Explorer during those

days. Every officer who was part of the surveillance team stated on cross-examination that they did not see either Mr. Clow or Mr. Pouponneau engage in any activity that was illegal, or even suspicious. [ 78 ] However, two events that occurred on March 29, 2010 are important. [ 79 ] The first event involved Mr. Clow’s RSX. That evening, 4 SDT observed Mr. Clow’s RSX enter the driveway of the House at 4:29 PM. Mr. Clow exited the vehicle and entered the House. At 6:32 PM, the RSX left the House, arriving at a Gas Plus located at Dover Ridge Drive and 26 Street SE.

At 6:55 PM, a Caucasian male entered the vehicle, which travelled approximately 20 feet before stopping in a parking stall. The Caucasian male exited the vehicle and the RSX was driven away. The encounter took approximately 20 seconds. Constable Schindel states in the ITO that these observations are consistent with a drug transaction. The surveillance team did not see drugs or money change hands and could not say who was driving the RSX during this encounter. [ 80 ] About half an hour later, at 7:23 PM, the RSX was located at the Calgary Casino parking lot at 1420 Meridian Road NE. At around 7:27, Mr.

Clow exited the casino, removed an unknown item from the passenger side of the RSX and returned to the casino. [ 81 ] The second observation occurred later that evening. At 9:03 PM, Mr. Pouponneau exited the House and entered a 1994 Ford Explorer. At 9:49 PM, the Explorer parked in front of [...] Manora Drive NE. At 10:05 PM, a minivan parked across the street and an unknown male got out and approached the Explorer. At 10:15 PM, a Chevrolet Trailblazer parked behind the Explorer although no one was observed exiting that vehicle. At 10:25 PM, Mr.

Pouponneau and an Asian male exited the residence at [...] Manora Drive NE. The Asian male placed a bag in the back seat of the Explorer. Mr. Pouponneau and an unknown male returned to the House in the Explorer, arriving at 10:40 PM. Later that night, the Explorer was involved in two alleged drug transactions observed by the 4 SDT, although neither Accused was in the vehicle at that time.

Constable Schindel states in the ITO that he believes [...] Manora Drive is being used as a stash house, to store drugs and money. [ 82 ] The Accused challenge Constable Schindel’s conclusions and statements relating to both the alleged drug transactions described above, and the events in December 2008. They argue there was no reason to believe a transaction of any sort occurred given that officers did not witness any sort of exchange and the ITO does not report anything changing hands nor does it report any observation of drugs, money or drug paraphernalia.

Not only was there no direct evidence as to what occurred in the two vehicles, there is no evidence as to who was driving either vehicle. [ 83 ] The Accused argue that the use of the terms “transaction” and “exchange” in the ITO are misleading in these circumstances and exaggerate the facts to create an erroneous impression. They claim the affiant’s use of inflammatory language had the effect of making the case appear stronger than it actually was.

They further argue that the ITO was silent on a number of material facts that would have been critical for the issuing justice to consider. [ 84 ] However, this wording is based on Constable Schindel’s experience in drug investigations. Regarding the December 8, 2008 observations, Constable Schindel does not use the terminology of “transaction” or “exchange”. Only at paragraph 22 of the ITO does Constable Schindel describe those observations as a transaction.

There, he states: This transaction between Richard CLOW and the Asian male driver of the Infiniti bearing Alberta Plate # KAX[...] is indicative of an ounce level cocaine deal. [ 85 ] While the March 29, 2010 events are described as a “transaction” at paragraph 46(

e) of the ITO, at paragraph 46(e)(

i) Constable Schindel qualifies his description. There, he states: “It is my opinion that based on the observations made and my experience that the activities were consistent with a drug transaction.” [ 86 ] It appears that Constable Schindel, as well as other officers, were expressing opinions they had formed from witnessing or hearing about certain events. Nowhere is there an assertion of a direct observation of a hand-to-hand drug transaction or any other type of exchange. However, the officers may draw attention to Mr.

Clow concealing a white plastic bag under his coat when in the presence of a person previously found in possession of drugs and money and the suspicious ways in which the RSX and Ford Explorer were being used on March 29, 2010. It is understood that the use of terms such as “transaction” and “exchange” in this context contain, incorporate

and communicate the opinion evidence of a police officer. [ 87 ] Even if I were to accept the Accuseds’ position that the words "transaction" and "exchange" were misleading, and consequently excise those words from the ITO, I fail to see how such a minor amendment would sway the issuing justice. There still remained a series of highly suspicious observations and the officers’ opinions as to what they were seeing would remain unchanged. An issuing justice remains free to accept the evidence of the officers as reliable and may draw reasonable inferences from those observations.

In so doing, the issuing justice would not be amiss to rely on Constable Schindel's expertise and his opinion that the impugned events were consistent with drug transactions. Based on the totality of the circumstances, including CI information, Mr. Clow's involvement with known drug traffickers, and his strong association to the RSX, it would not be unreasonable to infer that the December 8, 2008 and the March 29, 2010 observations were consistent with drug transactions. [ 88 ] In para. 52(

j) the affiant stated that: “Source B indicated that Ricky Clow was a drug trafficker. This has been corroborated by the observations of members of 4 SDT.” The Accused argue that this is a misleading statement and I agree if “corroborated” means that the police directly observed drug-related behavior by Mr. Clow. There was no direct observation of criminal activity by Mr. Clow or Mr. Pouponneau. To repeat, all of the surveillance officers admitted that at no time did they see either Accused engage in any criminal activity, or even anything that was remotely suspicious.

What they observed was the Accused going to and from the House engaged in what appeared to be commonplace activities. [ 89 ] Even if viewed as an over-statement requiring excision, there remains reliable evidence that links Mr. Clow and the House to drug dealing, even though its probative value depends upon whether the issuing justice is prepared to accept the description of certain events as drug transactions and is prepared to draw certain inferences from the following established surveillance evidence: a.

Both Accused had a connection to [...] Tarington Close NE as each was observed going to and from this location over the four days of surveillance in March 2010. b. Mr. Clow drives a Silver Acura RSX. c. Mr. Pouponneau drives a Ford Explorer. d. That RSX was seen earlier in the day on March 29, 2010 at the House and was later seen at Gas Plus engaged in conduct said to be consistent with a drug transaction by an experienced police officer e. That Ford Explorer left the Tarrington house on March 29, 2010 and then made two quick stops in succession.

An experienced police officer said the first was consistent with a drug transaction and the second may also be. [ 90 ] Such evidence may fall short of proving guilt beyond a reasonable doubt. However, the Crown points out that this is not the test. A search warrant is a tool used to advance a police investigation by allowing them to search a specified place on reasonable and probable grounds.

While certain conduct of the Accused may be open to various inferences, including innocence, it is sufficient if the issuing justice reasonably relied upon one of those available inferences in finding reasonable and probable grounds to issue the warrant. [ 91 ] For the purpose of the ITO and the issuance of this warrant, an issuing justice would have been free to accept that the RSX and the Ford Explorer were engaged in drug trafficking activities. [ 92 ] The issuing justice would also be free to infer or conclude that Mr.

Clow was driving the RSX during the March 29, 2010 Gas Plus event based on evidence that only he was observed driving this vehicle and that he was seen going into the car shortly after the alleged drug sale at the Gas Plus. Mr. Clow has been linked to the RSX since December of 2008 when his grandmother registered the vehicle. Mr. Clow, and only Mr. Clow, was observed driving the RSX during both surveillance periods, in December 2008 and March 2010. Mr.

Clow was observed parking the RSX outside the House on the afternoon of March 29 and was seen entering the vehicle at the Calgary Casino a half an hour after the events at the Gas Plus. It would not be unreasonable to infer that Mr. Clow was in the vehicle when it was seen participating in suspicious activity indicating a drug transaction at the Gas Plus. Further, the same RSX was reported to be engaged in similar drug transaction by an anonymous tipster in July 2009. [ 93 ] Even if Mr.

Clow was not driving the RSX, the issuing justice could still infer that there was a sufficient relationship or nexus between the RSX, the House and illegal drug activity.

[ 94 ] Similarly, given all of the surrounding circumstances, the fact that the Ford Explorer left the Tarington Close house and was then involved in at least one, and possibly two drug transactions may be a sufficient connection between the House and illegal activity to support a warrant to search the House for drug-related items, even knowing that Mr. Pouponneau was not in the vehicle at the time. H. Conclusion [ 95 ] I am not to consider whether I would have granted the search warrant, but instead, whether there was sufficient information such that the issuing justice could have granted it.

An ITO does not have to prove that an individual was committing an offence; it must simply offer information that is sufficiently persuasive to establish reasonable and probable grounds that an offence has been, or is being committed. Noone argues that the ITO in the case at bar is a flawless document. [ 96 ] The CI information is problematic but remains probative. Source A had proven to be reliable in the past but provided information that while accurate, corroborated and detailed, was somewhat dated. The information established an alleged pattern of behavior and some historical context.

This information was similar to that given by Source B, but that can be explained in part because the information provided by Source B related to matters such as Mr. Clow’s description and vehicle. Source B did, however, know the area in which Mr. Clow lived and alleged dealing of a named drug: being cocaine. The police confirmed most, but not all of the non- criminal aspects of the informer information and the case law states that there is no requirement that there must be corroboration of some criminal particular of the offence. While the surveillance evidence did not directly corroborate that Mr.

Clow was a drug trafficker, it did provide some evidence on which an issuing justice could link criminal activity to the House, and maybe even to the Accused. [ 97 ] While the ITO is very close to the line, the problem faced by the Accused is that the warrant is presumptively valid; they bear the burden of demonstrating the insufficiency of the ITO and the illegality of the warrant; and the case law sets a relatively low standard of review.

Even taking into consideration the problematic features of the ITO, when ambiguities are considered and any misleading evidence is excised, there still remains some evidence, based on a totality of the circumstances, on which an issuing justice could have found reasonable and probable grounds to approve this warrant. There was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. 3. There has been a Breach of both Accused ’s s. 10(

b) Right to Counsel [ 98 ] Mr. Clow and Mr. Pouponneau were arrested on the evening of March 30 and taken into custody. Mr. Pouponneau was arrested by Constable Geerlof while he was driving the Ford Explorer at about 8:30PM on March 30, 2010. He was informed of his right to counsel at 8:39 PM . Constable Geerlof, who had custody of Mr. Pouponneau immediately following his arrest, testified that he initially denied him access to counsel due to concerns for the Accused’s privacy, as well as officer safety should Mr.

Pouponneau attempt to break windows in the police cruiser if they removed his handcuffs. [ 99 ] Constable Weppler took continuity of both Accused on the evening of March 30. Mr. Pouponneau was transferred into her custody after he was strip searched and Mr. Clow was transferred from Constable Vriend into her custody at about 10:10 PM.. She informed Mr.

Clow of his right to counsel at 10:36 PM and he said he wished to call a lawyer at that time. [ 100 ] Constable Weppler eventually facilitated access to counsel the next morning at about 5:39 AM. [ 101 ] Once in custody, therefore both Accused were informed of their right to counsel but actually denied access to counsel for over 7 hours, until early on the morning of March 31. [ 102 ] Upon detention, an accused has an immediate right to counsel, subject to concerns about public and officer safety. This immediate right to retain and instruct counsel upon detention was recently affirmed in R. v.

Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460, where the Supreme Court stated at para. 42:

In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety,and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or herright to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [103] Constable Weppler testified that she was concerned Mr. Clow would inform others of the investigation which could result inlost evidence. According to Constable Weppler this was a “suspension” of the Accused’s s. 10(

b) rights and it was designed to allow thepolice to execute two other search warrants over and above the one for Tarington Close, as part of their overall investigation into drugtrafficking. She testified that the Accused’s rights “were suspended pending the investigation and the outcome of two search warrantsthat were going to be executed to preserve any evidence that may be found within those other residences.” [104] Constable Weppler and other officers did not attempt to elicit information from either of the Accused while their right tocounsel was being “suspended”.

In fact, she had very little interaction with the Accused other than to confirm that their basic needs werebeing met. [105] When asked on cross-examination why she did not dial a lawyer for the Accused in order to ensure they did not alert others tothe impending searches, Constable Weppler insisted that she would never call a lawyer on behalf of an accused.

She explained that shewould not interfere with the practice of allowing an accused “to contact whatever lawyer they wish, to seek whatever advice was given”and that she would “never get in between (...) a lawyer and their client’s conversations.” As the Crown admitted a breach there is no realpurpose exploring the very real problems raised by this explanation. [106] Constable Weppler allowed the Accused to contact counsel soon after all the search warrants were executed, when in her words“there was nothing else that could possible jeopardize the investigation”.

At the same time, when Constable Weppler finally allowed Mr.Clow to contact counsel, she noted that he dialled the 1-866 phone number for Legal Aid. [107] The Crown conceded that both Accused’s

section 10(

b) rights were breached but suggested the breaches were minor and did notsupport the exclusion of the evidence obtained from the execution of the search warrants. [108] Authority for suspending or delaying the facilitation of an accused’s

section 10(

b) rights for the purpose of executing a searchwarrant has its roots in R. v. Strachan, (SCC), [1988] S.C.J. No. 94, 56 D.L.R. (4th) 673 (“Strachan”). In that case,Dickson C.J. held at para. 34 that an accused’s

section 10(

b) rights could be suspended to allow officers to assess and contain “apotentially volatile situation”. Dickson C.J.’s comments were subsequently applied in R. v. Schultz (1991), (BC CA),67 C.C.C. (3d) 360 (B.C.C.A.), R. v. James, [2001] Q.J. No. 5232 (Q.C.A.), and R. v. Kiloh (2003), 2003 BCSC 209 , 57W.C.B. (2d) 528 (B.C.S.C.), to justify delays of several hours in facilitating access to counsel. [109] The British Columbia Court of Appeal summarized the Strachan line of cases in R. v. Patterson, 2006 BCCA 24, 206 C.C.C.(3d) 70 (“Patterson”), in its discussion of the types of circumstances justifying a temporary suspension of s. 10(

b) rights at paras. 40 and41: Strachan, Schultz, James, and Kiloh share certain characteristics not present in this case. All of them dealt with investigations in progress,involving high risk, volatile situations where firearms were known to be involved. The police had identifiable reasons for concerns aboutthe potential for violence and a risk that evidence may disappear or be destroyed. In Strachan, the police encountered not only theaccused, but two other unknown persons, during a search for known firearms. In Schultz, the accused was involved, with accomplices, ina violent armed kidnapping.

In James, the accused and accomplices were involved in the violent murder of a security guard, and wereknown to be trading in firearms. In Kiloh, the accused were arrested in a volatile situation for armed robberies of jewellery stores whereshots had been fired at civilians. In this case, the trial judge accepted that Constable Richmond had concerns about officer safety and the preservation of evidence.

Butthe concerns were of a general nature; there was no evidence that the police knew there were weapons in the residence, or that theappellant had accomplices in his drug dealings that were at large or in the residence. There was no investigation in progress until after theappellant's arrest, which arose initially from a roadside stop for a driving prohibition. It took an unexplained three-and-a-half hours toobtain the search warrant, and another fifty minutes until the search of his home began.

The "suspension" of the appellant's right tocounsel extended over a total of six-and-a-half hours. [110] From Patterson, it is evident that the suspension of an accused’s

section 10(

b) rights requires fairly serious circumstances.

Common features in cases where courts have upheld the suspension of

section 10(

b) rights have included potentially volatile and high risk situations where lives are at stake and firearms are present. Lacking such exigent circumstances, an accused has the right to counsel immediately upon arrest.

However, in light of the facts as stated above, in addition to the Crown’s concession of the breach and the absence of any evidence concerning the two other search warrants, this is not the case to determine the extent to which police may suspend an accused’s right to counsel in accordance with Strachan. [ 111 ] I also note that there was evidence that a person arrested in relation to the investigation was released at 10:30PM on March 30, 2010.

There is little detail about this fact but it does raise certain questions that were left unexplored any further in the evidence. [ 112 ] An accused has a right to counsel immediately upon arrest. The denial of this right for over 7 hours is significant. Yet, there is little indication that the denial of counsel to the Accused in the case at bar was carried out in bad faith, even though it was clearly an intentional choice. [ 113 ] Constable Weppler’s behaviour seems to confirm her perception of the events. She did not elicit information from the Accused while they were held without accessing counsel.

She also provided access to counsel soon after she learned that the two other warrants had in fact been executed. [ 114 ] As conceded by the Crown the denial of the Accused’s access to counsel for over 7 hours was unreasonable and a breach of their

section 10(

b) rights. 4. The Unlawful Strip Search of Mr. Pouponneau [ 115 ] The CPS conducted a traffic stop on a vehicle driven by Mr. Pouponneau, who was arrested for trafficking in a controlled substance on March 30, 2010. [ 116 ] Mr. Pouponneau was arrested by Constable Geerlof. Upon arrest, Mr. Pouponneau was cooperative and never made any attempt to conceal anything. Three bundles of money and a driver’s licence were found on his person. Constable Geerlof testified that another officer, Constable Pearson, told him he was sure Mr. Pouponneau had cocaine and advised Constable Geerlof to perform a strip search of Mr.

Pouponneau when he returned him to the District 4 office. However, upon both examination-in-chief and cross- examination, Constable Geerlof testified that his notes were unclear regarding whether Constable Pearson instructed him to strip search Mr. Pouponneau. He also conceded that he did not observe Mr. Pouponneau trafficking in drugs and had no details regarding 4 SDT surveillance activities. Constable Pearson testified that he did not instruct Constable Geerlof to strip search Mr. Pouponneau. [ 117 ] Mr.

Pouponneau was searched twice at the station prior to being strip searched: his pockets were searched and he was frisk searched, neither of which revealed anything. Constable Geerlof then placed Mr. Pouponneau in an interview room and asked him to remove his clothing. Constable Geerlof asked Mr. Pouponneau to lift his penis to display the area between his penis and scrotum. He also asked Mr. Pouponneau to turn around, bend over and spread his buttocks so he could inspect that area. [ 118 ] In R. v.

Golden , 2001 SCC 83 , [2001] 3 S.C.R. 679 (“ Golden ”), the leading case on strip searches, the Supreme Court revisited the issue of the common law power of search incident to arrest and modified the law by adding limitations on the circumstances under which police may conduct strip searches.

In Golden , the Court acknowledged at para. 90 that strip searches are “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy.” [ 119 ] At para. 99, the Court summarized the requirements for a lawful strip search in accordance with

section 8: In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and

probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe

section 8 of the Charter . [ 120 ] The Court also set out a framework at para. 101 enumerating factors police should follow when conducting a strip search in order to comply with the Charter . These factors emphasize the dignity of the person being searched and focus heavily on aspects such as the privacy, health and safety of the detainee, and the use of minimum force and physical contact.

Additionally, at para. 95 the Court confirmed that the reasonable grounds standard would apply to all strip searches regardless of the nature of the offence. [ 121 ] The Crown conceded that, in the circumstances there were no reasonable and probable grounds to conduct the strip search of Mr. Pouponneau and that there has therefore been a violation of his

section 8 rights. 5. Remedy for the Admitted Charter Breaches [ 122 ] The Accused submitted that the unlawful search of the House was sufficient to justify the exclusion of all evidence and statements under section 24(2). They also proposed that taken cumulatively, the Charter breaches are such that the evidence gathered pursuant to the search of the House should be excluded under section 24(2). [ 123 ] While the Crown concedes the denial of counsel to both Accused following arrest violated

section 10(

b) and that the strip search of Mr. Pouponneau violated

section 8, the Crown submits that the circumstances of the case favour admission of the evidence upon a proper weighing of the factors that should be considered under section 24(2). [ 124 ] The revised test for the exclusion of evidence under section 24(2) was set out by the Supreme Court in Grant .

In that case, the Court held at para. 71 that when determining whether to exclude evidence under section 24(2), courts must balance the effect of admitting the evidence on society’s confidence in the justice system, having regard for the following factors: 1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. [ 125 ] The Court added in para. 70 that the predominate focus of section 24(2) “is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The section 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.” [ 126 ] The Court then went on to discuss factors relevant to each

section of the revamped section 24(2) analysis. When considering the seriousness of the Charter -infringing state conduct, courts are required to consider whether the admission of the evidence would send a message that courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The Court noted at para. 75 that this analysis should address the following factors: (

a) Extenuating circumstances, such as the need to prevent the disappearance of evidence; (b) "Good faith" on the part of the police, with the caveat that negligence, ignorance of Charter standards and willful blindness cannot be equated with good faith; (

c) Wilful or flagrant disregard of Charter rights; and, (

d) Whether Charter -infringing conduct was part of a pattern of abuse.

[ 127 ] The second stage of the Grant analysis focuses on the impact of the breach on the Charter -protected interests of the accused. A more serious breach runs a greater risk of signalling to the public that Charter rights are of little actual avail to the citizen. When determining the seriousness of a Charter breach, courts must consider “the interests engaged by the infringed right and examine the degree to which the violation impacted those interests” according to para. 77 of Grant .

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen. At the second stage, court are to consider whether the impact of the breach was fleeting and technical or profoundly intrusive. [ 128 ] In regards to the interests protected by

section 8, the Court stated at para. 78: An unreasonable search contrary to

section 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one th

[…]