R v Nguyen, 2014 ABQB 766

Court of Queen ’ s Bench of Alberta Citation: R v Nguyen, 2014 ABQB 766 Date: 20141210 Docket: 111047486Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Son Van Truong Nguyen Accused Editorial Notice: The Court directed that this judgment be released. The accused was sentenced on May 10, 2016. _______________________________________________________ Voir Dire Decision #1 of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ Table of Contents I. Introduction and

Summary . 3 II. Background Facts . 4 III. Reliability and Credibility . 6 IV. The Law .. 6 V. Issue on Stage 1 of the Application . 9

VI. Review of the ITO – Stage 1 . 9 1. Paragraph 5 . 10 2. Paragraph 9 . 13 3. Paragraph 10 . 16 4. Paragraphs 11-12 . 17 5. Paragraph 13 . 25 VII. Conclusion . 26 APPENDIX “A” Indictment 27 APPENDIX “B” Modified ITO .. 28 I. Introduction and

Summary [ 1 ] This is the first part of a decision on an application by Son Van Truong Nguyen (the “Accused”) to exclude evidence seized at or near to the time of his detention and arrest and also seized under a search warrant obtained pursuant to s 11 of the Controlled Drugs and Substances Act (“ CDSA ”) in relation to alleged breaches of s 5(2) of the CDSA and s 355 of the Criminal Code of Canada (“ CCC ”). The application was dealt with in a “global” voir dire and evidence was received on March 26 and 27, 2014.

Oral argument was heard on March 28, 2014 and the Crown and the Accused then submitted written submissions in respect to the review and proposed modifications to the Information to Obtain a Search Warrant (“ITO”). [ 2 ] The ITO was sworn on September 2, 2011by Constable David Graham, Badge # 2384. Some of the members of the Edmonton Police Service (“EPS”) involved in the investigation that resulted in this matter coming before the Court, including Constable Graham, have been promoted and to the extent they are mentioned, I have attempted to reflect their current rank.

In this decision I refer to Constable Graham as Sgt. Graham to reflect his current rank, while recognizing that in the ITO, Sgt. Graham is identified as Cst.

Graham. [ 3 ] On September 2, 2011 a Justice of the Peace (the “JP”) issued a warrant (the “Warrant”) to search the residence of the Accused located at 14611 52 Street, Edmonton, Alberta (the “Residence”). [ 4 ] On this application, the Accused submits that his ss 8 and 9 rights of the Canadian Charter of Rights and Freedoms (the “ Charter ”) were breached at the time of his detention and arrest and at the time of the obtaining and execution of the Search Warrant.

He applies pursuant to s 24(2) of the Charter to exclude from his trial on the charges outlined in Appendix “A” all evidence gathered in the course of the searches done at or after his arrest and in executing the Warrant. [ 5 ] The Accused asserts that the ITO does not disclose reasonable grounds to support the authorization of the Warrant and therefore the Warrant was not lawfully issued as required. In asserting that the ITO does not disclose reasonable grounds to support the authorization of the Warrant, the Accused relies upon the following alleged defects in the ITO: (

i) inclusion of information obtained in breach of the Charter ; (ii) misleading statements and an absence of full and frank disclosure; (iii) unsupported inferences and conclusory statements; and (iv) lack of reliability of the confidential informant. [ 6 ] In the course of carrying out what I describe as the first stage of review of the ITO, I examine the alleged Charter breaches of ss. 7 , 8 , 9 and 10(

b) and have decided that the allegations in respect to ss 8 and 9 have not been made out, the alleged s. 7 breach is subsumed by my consideration of ss 8 and 9 and s 10(

b) was not included in the Charter Notice filed on behalf of the Accused. [ 7 ] For the reasons which follow, I have decided on this part of the application that the ITO should be amplified upon review. In the next phase of this application (which is yet to be argued and decided) the ITO, as modified, will be assessed as to whether in its revised state it is sufficient to support the granting of the Warrant by the JP. The modified ITO, after amplification upon review, is shown in Appendix “B”.

II. Background Facts [ 8 ] Sgt. Graham was a member of the Edmonton Drug and Gang Enforcement Unit (“EDGE”). At the relevant time, he had been an officer with the EPS for nine years, and had served on EDGE for two years. He was a trained undercover operator and had been involved in numerous drug-related investigations in the City of Edmonton, Alberta. His involvement in those other investigations included surveillance and execution of search warrants. [ 9 ] In the months and days leading up to September 2, 2011, Sgt.

Graham received ongoing direct information from a confidential informant (“DG1”) that the Accused was selling cocaine from a blue car. The ITO makes reference to the blue car being an Acura. In his viva voce evidence, Sgt. Graham stated that the information received from DG1 was that the Accused sold cocaine from a blue car, but did not identify the vehicle as being an Acura. In oral submissions counsel for the Accused pointed out this discrepancy which I now resolve in the following way. During his testimony, Sgt.

Graham indicated that he needed to refresh his memory by reference to the ITO so that he could speak to certain details of the investigation. The ITO was prepared during the course of the investigation at or near the time when DG1 provided the information to Sgt. Graham and I find it to be the more accurate description. I conclude that the information provided by DG1 to Sgt. Graham was to the effect that the Accused was selling cocaine from a blue Acura car. [ 10 ] From his experience with EDGE and previous investigations into gang activity in Edmonton, Sgt.

Graham knew that the Accused was involved in the illegal drug trade. [ 11 ] Sgt. Graham had known DG1 for less than one year when DG1 provided the information about the Accused and had not used information supplied by DG1 to obtain judicial authorizations prior to obtaining the Warrant. However, in his viva voce evidence Sgt. Graham indicated that DG1 had provided other information that had been corroborated even though it did not lead to an arrest or the judicial authorization of a search warrant.

He declined to expound on that other information, explaining that to do so might reveal the identity of DG1. [ 12 ] DG1 identified the Accused using a photograph supplied by Sgt. Graham. [ 13 ] Sgt. Graham was the lead investigator during the investigation into the information received from DG1. As part of the investigation, Sgt.

Graham conducted several database checks including the Motor Vehicle System (M.O.V.E.S), the Edmonton Police Reporting and Occurrence System (E.P.R.O.S.), the Canadian Police Information Computer (C.P.I.C.), and he also requested and received a statement from EPCOR regarding the provision of and payment for utilities at the Residence. [ 14 ] The EPS, including members of EDGE, conducted surveillance on the Accused on September 2, 2011 commencing at approximately 17:30 hours and continuing until the Accused was detained at 19:08 hours. During the surveillance activity, Sgt.

Graham recorded observations made by the members of the surveillance team (including themselves) and other information relayed via the police. He styled himself as the “scribe”. To ensure accuracy in the notes of the scribe, each member of the surveillance team signs off on those portions of the notes of the scribe that deal with that member’s observations and reports. [ 15 ] At 1730 hours on September 2, 2011, members of the EPS located a blue Acura bearing Alberta licence number J AZ 470 (the plate being registered to an individual who resided at the Residence), and followed it to that Residence.

The Accused was observed getting out of the blue Acura with a black plastic bag and entering that dwelling. [ 16 ] A little more than a half hour later, members of the EPS observed the blue Acura driving to the parking lot behind Northtown Mall. The driver was identified as the Accused. Members of the EPS observed a white male with bushy hair and wearing overalls get into the passenger seat of the blue Acura after the Accused signalled him to do so. The meeting between the white male and the Accused lasted for approximately one minute.

The Accused then drove away alone and proceeded to an alley between 68 Street and 69 Street north of 119 Avenue. [ 17 ] Approximately 15 minutes later, members of the EPS observed the Accused drive to 107 Avenue and park in the alley north of that road between 110 Street and 111 Street. The Accused met with a female who, after getting into the blue Acura for a few moments, was observed exiting the blue Acura and placing a small item in her purse. She drove away in a silver Dodge Caravan. [ 18 ] On the instructions of Sgt.

Graham, other members of the EPS stopped the Accused approximately five minutes thereafter at 102 Street and 107 Avenue. Sgt. Graham arrested the Accused and conducted a pat-down or frisk search, finding nothing of note. [ 19 ] While Sgt. Graham was with Accused, Sergeant Dreichel, also a member of EDGE, searched the blue Acura, and found a Blackberry cell phone, $855.00 CAD, 3 other cell phones and 0.7 grams of marijuana. [ 20 ] Sgt. Graham put the Accused into his unmarked police vehicle and proceeded to drive away. A few moments later, he stopped the vehicle and “chartered” and cautioned the Accused.

Under cross-examination, Sgt. Graham could not remember exactly why he “chartered” and cautioned the Accused when and where he did, other than to say that 107 Avenue is busy with pedestrian and vehicle traffic and that he thought that it would be better to get to a less busy area. After being cautioned, the Accused expressed a desire to speak to a lawyer. [ 21 ] Sgt. Graham then drove the Accused to EPS Headquarters. At EPS Headquarters, Sgt. Graham told the Accused that he was going to conduct a strip search and explained the procedure.

The Accused then pulled out from his underwear a clear bag containing thirteen 0.3 gram “spitballs” of crack cocaine (totalling 3.7 grams), each spitball individually wrapped in clear plastic wrap, twisted and knotted at the top. Inside the rear right pocket of the Accused’s jeans, Sgt. Graham located $205.00 CAD along with the Accused’s driver’s licence. [ 22 ] After completing the strip search, Sgt. Graham proceeded to draft the ITO and subsequently obtained the Warrant from the JP. Members of the EPS executed the Warrant and searched the Residence. The tactical team assisted in the execution of the Warrant.

Photographs were taken at the Residence but nothing was seized. [23] On September 3, 2011, the blue Acura was again searched, but without a warrant and a black armrest was seized. Thearmrest appeared to be modified from its factory condition to include a concealed cavity. Nothing further was seized from this vehicle. III. Reliability and Credibility [24] Sgt. Graham gave evidence that is pertinent to this decision in the context of the “global” voir dire. The Accused questionedSgt.

Graham’s reliability because of the discrepancy about the make of the blue vehicle and because of a portion of his oral evidencewherein he referred to the surveillance commencing at 1930 hours, when the ITO states that it began at 1730 hours. I have alreadyfound that the vehicle was a blue Acura. I further find that Sgt. Graham’s oral evidence that the surveillance commenced at 1930 hourswas a slip of the tongue. This is corroborated by the fact that, in other parts of his oral evidence, Sgt. Graham made references to thecorrect time frames set out in the ITO. [25] I accept Sgt.

Graham as a credible witness and that his evidence is reliable. IV.

The Law [26] There are two stages involved in the examination of this ITO, and that is done with the ultimate aim of determining whetherthe JP who issued the Warrant in this case acted on reasonable and probable grounds: R v Morelli, 2010 SCC 8 at para 13, [2010] 1 SCR253 (SCC) at 265. [27] The first stage covered in this Voir Dire Decision #1, involves a review of the ITO in relation to the various defects which areasserted by the Accused and a determination of whether any defects which may be found to exist can be remediated in whole, in part, orat all: R v Filice, 2013 ABQB 141 at para 15 [Filice #1].

The second stage, which is not covered by this decision, will involve adetermination of whether the ITO (as modified), could form the basis for the issuance of the Warrant by the JP. [28] The review of the authorities which now ensues encompasses the law dealing with both stages of the application before me.

Some of the authorities referred to in this Voir Dire Decision #1 will also be considered in the second stage of the review. [29] The Accused bears the burden of demonstrating that the ITO is insufficient: R v Campbell, 2011 SCC 32 at para 14, [2011] 2SCR 549 (SCC) [Campbell]. [30] The Alberta Court of Appeal has set out the considerations to be taken into account by a reviewing Court when examininginformations to obtain and search warrants in R v Dionisi, 2012 ABCA 20, 519 AR 313 [Dionisi]: [20] ... In a voir dire as to a

section 8 Charter breach, the onus is not upon the claimant to merely show that there were defects in theITO, the claimant must establish the breach of

section 8 on a balance of probabilities. This can be done only by showing that it is likelythat the search warrant would not have issued based upon the content of the ITO. It is not enough to persuade the trial judge that shewould not have been inclined to issue the warrant on the grounds thus provided. The trial judge must be satisfied that thewarrant is invalid, not that the trial judge would not have authorized it.

The trial judge does not re-try the warrant: R v Schindler,2001 ABCA 22, 277 AR 98 (Alta CA) at para 18, citing R v Araujo, 2000 SCC 65 [2000] 2 SCR 992 (SCC). [21] Even if it is established that there are flaws in the ITO, such as that information is inaccurate, or a material fact is not disclosed,this will not necessarily detract from the existence of the statutory pre-conditions: see R v Lising, 2005 SCC 66 (SCC) at para 30, [2005]3 SCR 343 (SCC).

As the trial judge noted, the fact that the confirmatory information in the ITO related to details other than the actualobservations of drugs in the house or the fact of appellant's trafficking, that confirmation still has value on the totality of thecircumstances: R. v. Caissey, 2007 ABCA 380 (Alta. C.A.) at para 23, (2007), 227 C.C.C. (3d) 322 (Alta. C.A.), aff'd 2008 SCC 65,[2008] 3 S.C.R. 451 (S.C.C.); R. v. Hillgardener, 2010 ABCA 80, 252 C.C.C. (3d) 486 (Alta. C.A.).

Here the ITO said that theinformant had provided reliable information in the past and that he had been compensated for it, and also that he had a relationship withthe handler. The fact that the informant had given specific details about non-offence particulars was still consistent with the informantproviding information on which reliance could be placed. There would in such a context be support for the idea that the informant had nogrudge against the appellant but a motive to work with the police. [22] The trial judge appears to have felt that the information from the informant might have been dated.

There is no rule as to howrecent information has to be in order to be relevant. In any event, the ITO alleged the information in the present tense. These avermentsprovided no room for the conjecture that the information provided was not recent enough to be relevant. The trial judge also speculatedas to whether the information provided by the ITO was information that the informant learned rather than seeing personally. An ITO isto be read in a practical, non-technical, commonsense basis: see R v Whitaker, 2008 BCCA 174 (BC CA) at paras 41-42, (2008), 254BCAC 234 (BC CA), leave refused [2008] 3 SCR x (note) (SCC).

There was no foothold for the assumption that the information wassecond-hand. Even if it were second-hand, the police experience with the informant was such that his information had been found to bereliable in the past. [23] More generally, it would not be correct for a trial judge to assume that any observations made by that trial judge as to possiblequestions about the content of the ITO from looking at the text would be such as would have escaped the notice of the authorizing judge.

For example, at one point she questioned whether the grammar in the ITO was identifying more than one informant. This court does notshare her concern in that respect, but in any event the law does not assume that the trial judge is smarter than the authorizing judge inthat sense. Rather, the search warrant is presumed to be valid: R v Pitre, 2011 NBCA 106 (N.B.

C.A.) at para 34 citing Québec(Procureur général) c Laroche, 2002 SCC 72 (S.C.C.) at para 68, [2002] 3 SCR 708 (SCC). [24] The case law has said repeatedly that the function of the trial judge is not to substitute her opinion for that of the authorizingjudge: R v Campbell, 2011 SCC 32 (SCC) at para 14, [2011] 2 SCR 549 (SCC) ("The question for a reviewing court is 'not whetherthe reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence' topermit an issuing justice to authorize the warrant (Morelli, at para. 40).").

Also see R v Lee, 2011 ABCA 310 (Alta CA) at para 14("The function of the reviewing judge is not to conduct a rehearing; rather, that judge should not interfere if the authorizing judge couldhave granted the authorization: R v Garofoli, (SCC), [1990] 2 SCR 1421 (SCC), at 1452, (1990), 60 CCC (3d) 161(SCC); R v Araujo, 2000 SCC 65, [2000] 2 SCR 992 (SCC), at 1016 -1017."). [25] A search warrant should issue only on a credibly-based probability, having regard to the whole of the circumstances, but aspointed out in Lee: 15 The proof sufficient to meet the standard of credibly based probability is whether the totality of the relevant circumstances support theinference.

Here the appellant invites us to examine individual circumstances in isolation, and suggests other inferences are possible. Weare satisfied that a collective assessment of the circumstances supports the finding of the reviewing judge that there was sufficientevidence that the authorizing judge could properly have granted the search warrant in this case. [26] The Court in Pitre explained that it is not for the trial judge to decide if the warrant would have necessarily issued on the ITO,but whether it could have been authorized by a judge acting judicially: see likewise R. v.

Ebanks, 2009 ONCA 851, 249 C.C.C. (3d) 29(Ont. C.A.) at paras 21, 33. (Ebanks was applied by ONCA majority in its decision later affirmed in Campbell.) It is apparent from thereasons of the trial judge, notably at paras 35 to 37, that she adopted a totality test, contended for by counsel for the appellant, that theITO had to provide "compelling" information. Her concerns about the conclusory nature of what the ITO contained overlooked thespecific detail of the manner and price at which the appellant allegedly was selling cocaine.

The suggestion that this may be "mererumour or gossip" is not grounded in anything but the argument of counsel. She dismissed the averments about the 2004 incident asunhelpful. She concluded her analysis with the observation that "I find that the edited ITO contains insufficient grounds ..." by referenceto the "compelling" test. That was not the question.

The question was whether no judge, acting judicially, could have chosen togrant the authorization on the information remaining after redaction. (Emphasis added.) [31] As noted by me in R v Verret, 2014 ABQB 186 at para 6, the legal test on the second stage of this application is laid out in thelast sentence of paragraph 26 of Dionisi (emphasized in the citation above), which can be read in a slightly modified form adapted to thiscase as: The question [is] whether no judicial officer, acting judicially, could have chosen to grant the [Warrant] on the information remaining [inthe ITO] after redaction. [32] The focus at the second stage of the review is not whether I would have granted the Warrant but whether the ITO containssufficient credible and reliable evidence to have permitted the JP in this case to authorize the issuance of the Warrant. [33] The reviewing court should not look at individual elements of an information to obtain in isolation without properconsideration of the whole of the information contained in that form of affidavit. [34] While it may be that some of the information contained in this ITO viewed in isolation would be insufficient to ground asearch warrant, the requirement to view the ITO in the totality of the circumstances ensures that this Court gives appropriate deference tothe authorizing judicial officer.

Indeed, the Alberta Court of Appeal has recognized that a “constellation of little bits, each inadequate initself, may well furnish” reasonable and probable grounds for granting the search warrant: R v Kanak, 2008 ABCA 179, [2008] A.J. No.499 at para 10. [35] In R v Fares, 2014 ABQB 160, Tilleman J summarized the standard to be considered by a court reviewing a search warrant: 67 … [T]he standard to be applied by the issuing justice, and considered by the reviewing court, is far less onerous than trial.

It is thecredibly based probability, not proof beyond a reasonable doubt; it is not a balance of probability, nor even a prima facie case (emphasis in the original). V. Issue on Stage 1 of the Application

[ 36 ] Considering the totality of the circumstances revealed in the evidence, should the alleged flaws in the ITO be remediated? VI. Review of the ITO – Stage 1 [ 37 ] Only some portions of the ITO are in dispute on this first stage of review. To the extent there is a request by the Accused for amplification upon review, or I decide that a modification is otherwise necessary, those portions of the ITO will be examined as follows: (

a) The paragraphs of the original ITO found in Exhibit V1 which may be subject to modification are set out in italics; (

b) The positions of the Accused, as applicant, and the Crown, as respondent, are summarized on a paragraph-by-paragraph basis; (

c) An analysis of the complaints made by the Accused in respect to the particular paragraph is performed and a conclusion is stated, including a direction as to what specific deletions and wording changes are to be made, if any; and (

d) Finally, the particular paragraph, if modified, is re-stated with any changes highlighted by bolding in the case of additions and strikeouts in the case of deletions. [ 38 ] No revisions are requested by the Accused or the Crown in respect to a number of the paragraphs appearing in the original ITO. The paragraphs of the ITO in respect to which there is no debate are not included in the body of this decision. They will, however, appear in the modified ITO in their original state.

Those paragraphs are 1 – 4 inclusive, 6 – 8 inclusive and paragraph 14. [ 39 ] The modified version of the ITO is presented in its entirety in Appendix “B” to this decision and will form the basis for the next stage of the hearing as to whether the JP could have issued the Warrant based upon the revised ITO. [ 40 ] I turn now to a review of the disputed paragraphs. 1. Paragraph 5 [ 41 ] Paragraph 5 states: INVESTIGATION 5) I received ongoing information from a Confidential Informant within the past few months to recent days.

The information has been generalized to protect the identity of the Confidential Informant.

This information that the Confidential Informant received was in one of the following ways: • The source personally witnessed the event described in this Information to Obtain; • The source had the information disclosed to him/her as a result of a conversation he or she had with the individual being investigated; • The source overheard a conversation where the information was disclosed by the individual noted in this investigation; Information provided by Confidential Informant DG1: • Son Nguyen is a cocaine drug dealer • Son Nguyen deals cocaine from a blue Acura car History with Confidential Informer DG1 I have known Confidential Informant DG1 for less than 1 year.

Confidential Informant DG1 has provided information to me that I have been able to corroborate via Police Computer Systems, experience and additional information provided by Confidential Informants on the illegal drug trade in Edmonton. I have not used information provided by Confidential Informant DG1 to obtain Judicial Authorizations in the past. I believe the information provided to me by Confidential Informant DG1 because the information provided to me has been proven to be true.

Confidential Informant DG1 confirmed Son Nguyen’s identity via photograph. [ 42 ] The Accused identifies two areas of concern in paragraph 5 and they are taken directly from the written submissions of the defence. These concerns include suggestions on how to modify the ITO: • Redaction of the

section “Information Provided by Confidential Informant DG1”, in its entirety, alleging that it is a conclusory statement without basis for the information • Editing of “History of Confidential Informant DG1” to include that DG1 has never been relied upon for any previous arrests. [ 43 ] With respect to the suggestion that the ITO be modified to state that DG1 has never been relied upon for previous arrests, the Crown agrees to this proposed modification. I accept these submissions and the change will be reflected in Appendix “B”. [ 44 ] However, the Crown disagrees that the

section titled “Information Provided by Confidential Informant DG1” requires complete redaction; the Crown’s position is that the

section should not be modified at all. The Crown submits that the contents of

paragraph 5 are not misleading and the viva voce evidence of Sgt. Graham establishes that he did not intend to mislead the issuing JP.

Moreover, the Crown contends that second sentence of paragraph 5 lays out that the information being provided has been generalized toprotect the identity of the confidential informant and that there is nothing wrong with this approach, relying on Filice #1 at para 37. [45] In R v Debot, (SCC), [1989] 2 SCR 1140, [1989] SCJ No. 118 (SCC) [Debot], Wilson J outlined certainrequirements that the court must consider in evaluating information received from confidential informants (at para 60): In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.First, was the information predicting the commission of a criminal offence compelling?

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

Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [Emphasis added.] [46] In looking at the “three C’s” identified in Debot, (i.e. whether the information is compelling, credible and corroborated) Imust ensure that the support for the confidential information is more than mere rumour or gossip: R v Phung, 2013 ABCA 63 at para13. I must satisfy myself that the EPS did not simply act on uncorroborated tips but that they did something more. [47] With respect to the first “C”, namely whether the information was compelling, I find that it was.

The information that theAccused (identified by name and photograph) was dealing cocaine from a blue Acura was sufficient to prompt the police to act. I havehad the opportunity to look at many of the cases provided by the Accused and the Crown and other cases. More information could havebeen provided by the drafter of the ITO and it is likely that would have made it more compelling. That said I find that the informationwhich was received is compelling. [48] The Accused places great emphasis on the fact that DG1 had not been relied upon for previous judicial authorizations orarrests.

This would go towards the second “C” or credibility of the information received. Sgt. Graham was forthright in the original ITOand in his viva voce evidence that he had not used information from DG1 previously for judicial authorizations or arrests. That such wasthe case may mean that the credibility factor is weaker than if DG1 had previously provided information that grounded a judicialauthorization or arrest. However, I do not find that the provision of prior information leading to judicial authorizations is the foundationfor credibility.

I note that every confidential informer needs to have a “first time” in providing information and so it only makes sensethat this cannot be the only factor in determining credibility or reliability. Sgt. Graham testified he had corroborated other informationfrom DG1 which turned out to be true and I accept that testimony from him. In addition, DG1 was able to identify the photograph of theAccused, thereby giving some assurance as to his/her credibility, and also had a corroborative effect.

This leads into the nextconsideration. [49] Most importantly in respect to the third “C” (corroboration), the information provided by DG1 about the Accused wasconfirmed through Sgt. Graham’s familiarity with the Accused, through other investigations in which Sgt. Graham was involved,through information deduced from searches of the MOVES, EPROS and CPIC databases, and through the surveillance activitiesdescribed earlier in this decision. [50] Viewed in isolation, the statements under the heading “Information Provided by Confidential Informant DG1” may seemconclusory.

However, when considered in the context of the entire ITO and the totality of the circumstances, as amplified by the vivavoce evidence of Sgt. Graham, they are not conclusory or without basis. Rather, they are succinct statements that summarize theinformation received from DG1. They will not be modified in any way. [51] The Crown also suggests certain other changes to paragraph 5 which have the effect of making it clear what Sgt. Graham’sevidence is, and to provide the proper context for the information overall.

I accept all of these proposed changes and in the resultparagraph 5 of the ITO shall be modified as follows: INVESTIGATION 5) I received ongoing information from a Confidential Informant within the past few months to recent days. The information has beengeneralized to protect the identity of the Confidential Informant.

This information that the Confidential Informant received was in one ofthe following ways: • The source personally confidential informant witnessed the event described in this Information to Obtain Son Nguyen dealcocaine from a blue Acura car; • The source confidential informant had the information disclosed to him/her as a result of a conversation he or she had with theindividual being investigated Son Nguyen; • The source confidential informant overheard a conversation where the information was disclosed by the individual noted in thisinvestigation Son Nguyen; Information provided by Confidential Informant DG1: • Son Nguyen is a cocaine drug dealer

• Son Nguyen deals cocaine from a blue Acura car History with Confidential Informer DG1 I have known Confidential Informant DG1 for less than 1 year. Confidential Informant DG1 has provided information to me that I havebeen able to corroborate via Police Computer Systems, experience and additional information provided by Confidential Informants onthe illegal drug trade in Edmonton. I have not used information provided by Confidential Informant DG1 to arrest individual(

s) or obtain Judicial Authorizations in the past. I believe the information provided to me by Confidential Informant DG1 because theinformation he/she has provided in other matters to me has been proven to be true. Confidential Informant DG1 confirmed SonNguyen’s identity via photograph. 2.

Paragraph 9 [52] The next area of dispute arises in respect to paragraph 9 which reads as follows: 9) On September 2, 2011 Members of the Edmonton Drug and Gang Enforcement Unit Squad #2 conducted surveillance on Son Nguyenwith the following pertinent observations: 1730 hours – blue Acura bearing Alberta licence plate JAZ470 located at 118 Avenue/84 Street and followed to 14611 52 Street 1745 hours – Son Nguyen is observed exiting the Acura and entering into 14611 52 Street carrying a black plastic bag. 1821 hours – blue Acura bearing Alberta licence plate JAZ470 is observed driving to 137 Avenue/97 Street from 14611 52 Street withSon Nguyen driving into the back parking lot behind Northtown Mall 1833 – 1834 hours – A white male wearing overalls with bushy hair enters into the passenger seat of the Acura for a short period oftime behind Northtown mall.

Son Nguyen immediately drives east out of the parking lot (***Suspected Drug Deal***) 1847-1848 hours – Son Nguyen drives from Northtown Mall to the alley between 68 Street and 69 Street and north of 119 Avenue andparks for a short period of time. 1901 – 1903 hours – Son Nguyen then drives to 107 Avenue and parks in the alley north of 107 Avenue between 110 Street and 111Street. Son Nguyen meets up with a female who enters into his Acura and exits a short time later placing a small item into her purse.

Son Nguyen drives immediately away east on 107 Avenue and the female leaves in a silver Dodge Caravan registered to Sheila Swansonborn in 1972 (*** Suspected Drug Deal***) 1908 hours – Son Nguyen is stopped and arrested for Possession of cocaine for the Purpose of Trafficking at 102 Street and 107 Avenue [53] The concerns of the Accused in respect to paragraph 9 are found in the written submissions of the defence as follows: • Failure to disclosure [sic] to authorizing justice that there were a number of vehicle [sic] associated with the household, whichwere not queried for association to the household (this is relevant for the assessment regarding the scope of the intrusion on privacyinterests); • Failure to disclosure [sic] that no positive identification was generated with respect to first surveillance observation (leaves amisleading impression that the Applicant is observed in all operations of the vehicle); • Failure to disclosure [sic] that the bag, purportedly carried by the Applicant did not appear to weighed [sic] down or full (thecurrent description of the bag has the potential of a misleading impression such that it paints a potential sinister association to thehousehold); • Failure to disclosure [sic] that there were no observations of hand-to-hand exchanges; • Failure to disclose that the male passenger in Interaction No. [sic] was no [sic] observed to be acting suspiciously or placing anyitems into his pockets nor with items in his hands • Failure to disclose that, at 1833-1834 hours, as disclosed in the evidence of Graham, no significant or sinister observations aremade of the Applicant upon departure from the mall and once observed in the alley [54] The Accused submits that paragraph 9 of the ITO should be deleted in its entirety. [55] The Crown responds that paragraph 9 is neither misleading nor that it fails to satisfy Sgt.

Graham’s duty of full and frankdisclosure to the issuing judicial officer. In making these submissions, the Crown relies upon R v Araujo, 2000 SCC 65[2000] 2 SCR 992 at 1014-1015 and R v Coulbourne, (ON CA), 149 OAC 132, [2001] OJ No 3620 (CA) at para 43[Coulbourne] for the proposition that the ITO need not disclose every observation “non-observation”, and detail of the policeinvestigation. [56] In Coulbourne, the police officer who swore the information to obtain a search warrant identified two indicia of impairmentthat he had observed. He did not include indicia of impairment that he had not observed.

The Ontario Court of Appeal held atparagraph 43 that: Constable Henry described the indicia of impairment that he observed. It was implicit that he did not observe any other indicia ofimpairment. His failure to specifically enumerate the things that he did not see does not constitute non-disclosure.

[ 57 ] In Araujo , the Supreme Court stated that: Ideally, an affidavit should be not only full and frank but also clear and concise .

It need not include every minute detail of the police investigation… A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its reader… There is nothing wrong – and much right – with an affidavit that sets out the facts truthfully, fully and plainly . (at 1015, emphasis in the original) [ 58 ] Therefore the law is that an affidavit in support of an application for a warrant must contain facts that favour granting of the warrant, facts that militate against granting the warrant (see R v Hatton , 2011 ABQB 242 at para 74 ) and also be drafted in a plain, clear and concise manner. [ 59 ] In addition to the facts contained in the ITO, I have considered the evidence provided by Sgt.

Graham in the voir dire . Sgt. Graham could have included additional information in his ITO – whether they would have been material, I cannot say at this juncture. I am reminded that even if there were further material facts that should have been disclosed, such failure to disclose may not mean that the ITO is insufficient: Dionisi at para 21 . Additionally, my function is not to substitute my opinion for the opinion of the authorizing justice: Campbell at para 14 . [ 60 ] That Sgt.

Graham could have included more (or less) information in the ITO is not the relevant determination; it is whether what he did disclose is full and frank.

I am satisfied that it is and therefore the defence submission that paragraph 9 should be entirely deleted is rejected. [ 61 ] The Crown does acknowledge that there may be some ambiguity in paragraph 9 which could be remediated by modifying the paragraph as follows: 9) On September 2, 2011 Members of the Edmonton Drug and Gang Enforcement Unit Squad #2 conducted surveillance on Son Nguyen with the following pertinent observations: 1730 hours – blue Acura bearing Alberta licence plate JAZ470 located at 118 Avenue/84 Street and followed to 14611 52 Street 1745 hours – Son Nguyen is observed exiting the Acura and entering into 14611 52 Street carrying a black plastic bag. 1821 hours – blue Acura bearing Alberta licence plate JAZ470 is observed driving to 137 Avenue/97 Street from 14611 52 Street with Son Nguyen driving into the back parking lot behind Northtown Mall 1833 – 1834 hours – A white male wearing overalls with bushy hair enters into the passenger seat of the Acura for a short period of time behind Northtown mall.

Son Nguyen was observed by members of the Edmonton Police Service to immediately drive s east out of the parking lot . Police believed this brief interaction to be a (***Suspected Drug Deal ***) 1847-1848 hours – Son Nguyen drives from Northtown Mall to the alley between 68 Street and 69 Street and north of 119 Avenue and parks for a short period of time. 1901 – 1903 hours – Son Nguyen then drives to 107 Avenue and parks in the alley north of 107 Avenue between 110 Street and 111 Street. Son Nguyen meets up with a female who enters into his Acura and exits a short time later placing a small item into her purse.

Son Nguyen was observed by members of the Edmonton Police Service to drive s immediately away east on 107 Avenue . The and the female leaves in a silver Dodge Caravan registered to Sheila Swanson born in 19 72 . Police believed this brief interaction to be a (***Suspected Drug Deal ***) 1908 hours – Son Nguyen is stopped and arrested for Possession of cocaine for the Purpose of Trafficking at 102 Street and 107 Avenue [ 62 ] I agree with the Crown’s suggested changes and they will be incorporated into Appendix “B”. 3.

Paragraph 10 [ 63 ] Paragraph 10 of the ITO reads as follows: 10) The above observations are consistent with cocaine trafficking or a “dial-a-dope” cocaine trafficking operation. In my experience it is common for drug traffickers to drive vehicles not registered to them, meet with individuals for short periods of time to exchange cocaine for cash, use cell phones as a means of communication and hide cocaine in vehicles or on their person.

This was the case in this investigation and I believe that Son Nguyen was in Possession of Cocaine for the Purpose of Trafficking because of the information provided by the Confidential Informant, Son Nguyen’s criminal convictions and the surveillance conducted. [ 64 ] The Accused submits that paragraph 10 should be redacted in its entirety because of “overstatement[s] and conclusory statement[s] without foundation, largely in part because of the relevant omission[s] from paragraph 9”. The Crown responds that paragraph 10 expresses an opinion of Sgt.

Graham, that it is not a misleading statement and that it must be considered in context with the preceding paragraphs of the ITO. The Crown further submits that any uncertainty or ambiguity associated with this paragraph could be remedied very easily by making the following minor change which is highlighted: 10) I believe the The above observations are consistent with cocaine trafficking or a “dial-a-dope” cocaine trafficking operation. In my experience it is common for drug traffickers to drive vehicles not registered to them, meet with individuals for short periods of time to

exchange cocaine for cash, use cell phones as a means of communication and hide cocaine in vehicles or on their person. This was thecase in this investigation and I believe that Son Nguyen was in Possession of Cocaine for the Purpose of Trafficking because of theinformation provided by the Confidential Informant, Son Nguyen’s criminal convictions and the surveillance conducted. [65] In light of my conclusion in respect to paragraph 9, I find that paragraph 10 is not a misleading statement; it represents thebelief of Sgt.

Graham, relying upon his training and experience, and the observations of the members of the surveillance team, includinghis own. The Crown’s suggested changes to paragraph 10 will be incorporated into Appendix “B”. 4. Paragraphs 11-12 [66] Paragraphs 11-12 inclusive read as follows: 11) I read Son Nguyen the Charter of Rights at 1913 hours. I then transported Son Nguyen to Police Headquarters where I conducted asearch. I located 13 “spitballs” or (13) 0.3 gram pieces of crack cocaine that were individually wrapped in clear plastic wrap, twistedand knotted at the top.

These “spitballs” were held together in a clear plastic sandwich baggie and were hidden in Son Nguyen’sunderwear. I also located $205.00 in Canadian Currency in Son Nguyen’s rear right jeans pocket with his Alberta Operator’s licence. 12) Reg. #2025 Sgt. DREICHEL of the Edmonton Drug and Gang Enforcement Unit conducted a search of the Acura finding thefollowing: • Blackberry cell phone device • $855.00 Canadian Currency •

(3) Cellular telephones • 0.7 grams of Marijuana Sgt. DRIECHEL advised me that he had read the following drug related text message on one of the Blackberry devices from the Acurafrom phone number 780-333-8644: “Could I get like 40 buk worth of green or do you have a line on that?” [67] The Accused submits that these paragraphs 11 and 12 should be excised in their entirety as the evidence referred to wasobtained unconstitutionally because of alleged breaches of the Accused’s Charter rights.

The Crown’s position is that any considerationof these two paragraphs must await my ruling on the Charter arguments which were advanced as part of the “global” voir dire on March28, 2014 and I now turn to that discussion. [68] The Accused alleges that his Charter rights were breached when he was detained and arrested arbitrarily and subjected to awarrantless search of his person and his vehicle. The evidence obtained by such actions formed some of the grounds in the ITO that theJP relied upon in granting the Warrant. [69]

Section 9 of the Charter protects individuals from arbitrary detention or imprisonment while s 8 of the Charter protectsindividuals from unreasonable search or seizure. Similar to the decision which I rendered in R v McCargar, 2007 ABQB 30[McCargar], the reasonableness of the seizure of evidence from the Accused’s person and the vehicle he was driving flows from thevalidity of the detention and arrest in the first instance since the Crown asserts that the searches were reasonable as incidental to arrest.

Accordingly, I will address the alleged s 9 breach before addressing the s 8 breach issue. [70] However, before moving to these questions I will comment on the two sections of the Charter which were raised in thewritten materials of the Accused provided to me during oral argument. Sections 7 and 10(

b) were not referred to or relied upon in theCharter Notice, but found their way into the Accused’s written materials. The Crown took issue with the references to these sections, asthey were not included in the Charter Notice. The law has been settled since our Court of Appeal decision of R v Dwernychuk, 1992ABCA 316, 135 AR 31 (CA) that the Accused must give fair and reasonable notice of any Charter issue arising. While I agree with theCrown’s concern that ss 7 and 10(

b) were not properly before the Court, I make the following observations. [71]

Section 7 ensures that everyone “has the right to life, liberty and security of the person and the right not to be deprived thereofexcept in accordance with the principles of fundamental justice.”

Section 10(

b) ensures that everyone has the right on arrest or detention“to retain and instruct counsel without delay to be informed of that right.” [72] As I noted in McCargar: [7]

Section 7 has a unique connection to the rest of the legal rights [in the Charter] since the legal rights in ss. 8-14 represent aspectsof s. 7 itself. In the seminal case of Reference Re Motor Vehicle Act (British Columbia) s 94(2), (SCC), [1985] 2 SCR486 at para 28, the Supreme Court of Canada explained that “[s]ections 8 to 14 [of the Charter] are illustrative of deprivations…”contemplated by s. 7. In other words, ss. 8-14 of the Charter may be seen as examples of deprivations of the right to life, liberty orsecurity of the person not in accordance with the principles of fundamental justice.

Where there is a breach of a legal right in ss. 8-14and that particular right may be seen as an example of s. 7, there has not been a breach of two separate Charter rights. Therefore there isno need to engage both analyses: R v Rodgers, 2006 SCC 15 [2006] 1 SCR 554.

… [9] I come to a similar conclusion in this case as Charron J in Rodgers. Although s. 7 may be triggered by the actions of the police inthis case, it is only to the extent that a violation of other legal rights may be seen as examples of s.7. The s. 7 analysis is thereforeredundant on the facts of this case… [I]t is unnecessary to look beyond ss. 8, 9 and 10(

b) since the s. 7 rights will be dealt withadequately by the analyses of the other provisions listed in the Charter Notice of Motion. [Emphasis added.] [73] While the Charter Notice in the case at bar is silent as to any alleged s 7 breaches, I can dispose of the Crown’s concerns as Idid in McCargar by saying that my analysis of the alleged ss 8 and 9 breaches will cover any s 7 concerns which might exist. [74] As for the alleged s 10(

b) breach that was not included in the Charter Notice and therefore it is not properly before the Court. The Accused did not provide advance notice of any alleged s 10(

b) breach. Accordingly, I will not address any alleged breaches of his s10(

b) rights. [75] As with all alleged Charter breaches, the onus is on the Accused to persuade the Court that his Charter rights were breached:R v Vollrath, 2010 ABQB 196 at para 9 [Vollrath]. [76]

Section 495 of the CCC permits peace officers to arrest someone without warrant: 495(1) Arrest without warrant by peace officerA peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence, (

b) a person whom he finds committing a criminal offence, or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in PartXXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. 495(2) LimitationA peace officer shall not arrest a person without warrant for (

a) an indictable offence mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or (

c) an offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealtwith according to law. 495(3) Consequences of arrest without warrantNotwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of hisduty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peaceofficer did not comply with the requirements of subsection (2). R.S.C. 1985, c. 27 (1st Supp.), s. 75. [77] The reasonableness of detaining an individual is based on the grounds that the police had prior to the detention or arrest andmust be assessed on both a subjective and objective basis: R v Storrey, (SCC), [1990] 1 SCR 241, R v Mann, 2004SCC 52, [2004] 3 S.C.R. 59 [Mann].

An officer detaining an individual must subjectively have reasonable and probable grounds todetain an individual and those grounds must be justifiable on an objective basis: McCargar, at para 14.

[78] In the unreported oral decision of R v Truong and Tio (February 6, 2014), Edmonton, 120274428Q1 (Alta QB) [Truong],Greckol J discussed the subjective-objective interplay: For an arrest to be valid on the basis of reasonable and probable grounds, it is not sufficient for the police officer to subjectively believethat he has reasonable and probable grounds to make the arrest.

Rather, it must also be shown that a reasonable person standing in theshoes of the officer would have believed that reasonable and probable grounds existed to make the arrest… If there are no reasonableand probable grounds for arrest then the detention is unlawful. An unlawful detention is necessarily arbitrary within the meaning ofSection 9 of the Charter… [79] The reasonable person who is “in the shoes” of the police officer can take into account the officer’s training and experience:R v Phung, at para 10.

The reason this is so is because what may seem to be innocent to the general public may have a very differentmeaning to an officer experienced in drug operations: R v Rajaratnam, 2006 ABCA 333 at para 25.

When assessing whether the policeofficer had reasonable and probable grounds to make the arrest and subsequent search, the court cannot take into account what is laterseized from an accused: Truong. [80] With respect to the police officer’s training and experience, Sanderman J noted in the unreported, oral decision of R v Islow(October 29, 2013), Edmonton, 110597234Q1 (Alta QB) [Islow], that “Experience and training counts for a lot but [it is] the informationthat is accepted or gathered by the officer and how he then applies it to his experience and training that is important.” Thus, theparamount focus is on the information received and interpreted and not on the experience and training of the officer. [81] In the case at bar, Sgt.

Graham’s sworn evidence reflected in the ITO and as amplified by his viva voce evidence in the voirdire, based on his training and experience, was that short meetings (i.e. one to two minutes in duration) with different individuals areconsistent with cocaine transactions. He further described general characteristics of those involved in the drug trade including drivingvehicles registered in someone else’s name, using cell phones as a means of communication and hiding cocaine in vehicles or on theirperson. Sgt.

Graham’s experience and knowledge of the above-described activities coupled with the information received from DG1, theAccused’s prior criminal convictions and the surveillance conducted by the EPS were the grounds on which he made the decision toarrest the Accused. [82] The Accused submits that I should place weight on the fact that the surveillance conducted on the Accused lasted for less thantwo hours.

I am mindful of the Supreme Court of Canada’s statement that “police officers must be empowered to respond quickly,effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing” (Mann, at para 16). The relevantconsideration therefore is what is observed during the surveillance, not the duration of the surveillance. [83] Furthermore, the Accused submits because neither Sgt.

Graham nor the other members of the surveillance team actually sawany transactions or hand-to-hand exchanges taking place that, from an objective viewpoint, it was unreasonable to conclude that illegalactivity had taken place. Relying upon Islow, the Accused submits that there was nothing that objectively solidified Sgt. Graham’sbelief that drug transactions had occurred. [84] I disagree. It is not for courts to “engage in precise margin definition regarding the

interpretation of physical movements bytrained police officers”: Phung at para 14. During the voir dire, Sgt. Graham was unwavering in his belief that drug transactions hadoccurred in the brief meetings between the Accused and each of the bushy haired male and the female driving the Dodge Caravan. Here-iterated that his belief was grounded in his training and experience in numerous drug investigations. [85] Based on the grounds articulated in the ITO and amplified by Sgt. Graham’s viva voce evidence, I am satisfied and I find thatSgt. Graham subjectively had the grounds to arrest the Accused.

Moreover, there is an objective basis for a reasonable person in theshoes of Sgt. Graham to believe that drug transactions were occurring and therefore, there were reasonable and probable grounds to makethe arrest. [86] In the result, I find no breach of s. 9 of the Charter. [87]

Section 8 of the Charter ensures that everyone has the right to be secure against unreasonable search or seizure. To establishan infringement of s 8, the person raising the claim must first establish that he or she had a reasonable expectation of privacy in the thingsearched or seized, which reasonable expectation is to be determined on the basis of the totality of the circumstances: R v Buhay, 2003SCC 30 at para 18, [2003] 1 SCR. 631.

Intrusions into a person’s privacy must be reasonable: R v Dhaliwal, 2014 ABQB 717 at para184. [88] Searches without a warrant are prima facie unreasonable and the burden of proving that the search was not unreasonable is onthe party seeking to justify the warrantless search: R v Golden, [2001] 3 SCR 679, 2001 SCC 83 (at para 84) [Golden]. [89] In order that a warrantless search may be found to be lawful, three conditions must be met: (1) the arrest must be lawful, (2) the search must have been conducted as an “incident” to the lawful arrest, and (3) the manner in which the search is carried out must be reasonable (R v Stillman, (SCC), [1997] 1 SCR 607, 1999 CarswellNB 107 (SCC) at para 27 [Stillman], Golden at paras 91-93). [90] A search is considered incidental to arrest if it relates to the purpose for the arrest: Golden at para 92, R v Caslake, 1998

838 (SCC), [1998] 1 SCR 51, 1998 CarswellMan 1 at para 17 [Caslake]. There are three main purposes for searches incident toarrest: “ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, andthe discovery of evidence which can be used at the arrestee's trial” (Caslake, at para 19). [91] A police officer is not obligated to suspend a search incidental to arrest until a detained individual retains counsel.

Theexceptions to this occur when, by its nature, the search is dependent upon an individual’s consent, or a statute gives the individual a rightto seek review of the decision to search,: Debot at para 3. ripsearches (see Golden, at para 26). That a warrantless search was allowed in one case does not mean, however, that warrantless searcheswill always be allowed.

Each case must be examined on its own facts and there can be no formulaic determination of the reasonablenessof a warrantless search in the abstract. [93] The power to conduct a strip search (or any warrantless search for that matter) is not without limits. Due to their inherentlyhumiliating and degrading nature, strip searches must not be carried out simply as a matter of routine policy: Golden, at para 90.

Even astrip search done in good faith breaches s 8 of the Charter if there are no compelling reasons to conduct the strip search: Golden at para95. [94] In addition to the three conditions described in Stillman and Golden which apply to all warrantless searches incidental toarrest, in order for a strip search to be justified, there is one additional requirement, namely that there must be reasonable and probablegrounds to conduct the strip search: R v Saeed, 2014 ABCA 238 at paras 23-24, per McDonald JA, Golden at para 99. [95] In this case, members of the EPS conducted five searches, described in chronological order as follows: (1) pat down or frisksearch immediately following the Accused’s detention; (2) search of the blue Acura at the time of arrest; (3) strip search of the Accusedat police headquarters; (4) search of the Residence; (5) search of the blue Acura on September 3, 2011. [96] The Crown submits that the searches identified above as #1-3 and 5 were undertaken incidental to the arrest of the Accused.

The Accused contends that both searches of the blue Acura were unnecessary as the vehicle was secured by members of the EPS andtransported to a secure location; therefore, the EPS should have obtained a warrant to search the vehicle. [97] The Accused contends further that the search of the vehicle on September 3, 2011 (search #5) was not incidental to arrest andsince it was done without a warrant, the evidence collected at that time should be excluded.

I note that since the ITO was sworn onSeptember 2, 2011 and the Warrant was issued the same day, it is clear that the evidence obtained from that search was not included inthe grounds relied upon by the JP in granting the Warrant. [98] While my considerations as to whether to exclude the evidence obtained in the September 3, 2011 search of the blue Acura(search #5) are not necessary for this decision, I can see no reason why the vehicle was searched on that date without a warrant.

I agreewith the Accused that search #5 was not incidental to the arrest, and therefore, a warrant to search the vehicle the second time could havebeen obtained. I conclude that the evidence obtained as a result of the warrantless search of the vehicle on September 3, 2011 isexcluded.

My decision in respect to the first search of the vehicle, which occurred at or near the time of the Accused’s arrest, isexplained below. [99] As my decision lies solely with whether the ITO contained sufficient grounds for the judicial authorization of the Warrant, itis unnecessary for me to consider at this time whether the Accused’s s 8 rights were infringed during the execution of the Warrant(search #4); that is a decision for another day. [100] However, I am able to determine whether searches #1-3 breached the Accused’s right to be secure against unreasonable searchand seizure, as set out in s 8 of the Charter.

In other words, the determination which I must make is whether the searches were lawful, asthey were undertaken without a warrant. [101] Having already determined that the Accused’s arrest was lawful, the first condition is satisfied for each of searches #1-3. As towhether searches #1-3 are “incidental” to arrest, I must look at circumstances of the arrest. The arrest was for trafficking in narcotics. Insuch a situation, the location and preservation of evidence is of utmost importance.

I am satisfied that each of searches #1-3 relates to thepurpose of the arrest and they are therefore incidental to the Accused’s arrest. [102] The third condition is that of the reasonableness of the search. I am satisfied that the pat down or frisk search was reasonable. Sgt.

Graham testified that this was done to ensure that the Accused had no weapons on him and that he was attempting to locateevidence. [103] As for the initial search of the blue Acura (search #2), the Accused submits that once the vehicle was under the control of thepolice, there ought to have been no fear of the loss of evidence and therefore the police should have obtained a warrant prior to searchingthe vehicle. There is some merit to the Accused’s submissions. However, I must not lose sight of the three purposes of searchesincidental to arrest identified in Caslake, namely to (

i) ensure police safety, (ii) protect evidence from destruction and (iii) discoverevidence that could be used against the Accused at trial: Caslake at para 19, and R v Hillgardener, 2010 ABCA 80 at para 29. Therefore, considering the totality of the circumstances leading up to the arrest of the Accused, including that the pat down search didnot turn up anything, I find that it was reasonable to search the blue Acura at that time.

The police had reasonable grounds to believe thatthe Accused was involved in the trafficking of illegal drugs and therefore, the initial search of the vehicle was reasonable. [104] For the reasons which follow I am also satisfied that the strip search was reasonable and that reasonable and probable grounds

existed for the strip search to be undertaken – namely preservation and discovery of evidence. [ 105 ] Sgt. Graham testified that the strip search procedure is uncomfortable for the individual and uncomfortable for the police officer. This may be putting things mildly. Indeed, the Supreme Court of Canada has described the process as “humiliating, embarrassing and degrading for those who are subject to them” ( Golden at para 89 ).

Because of the seriousness of the privacy invasion, courts must be extremely cautious in determining the reasonableness of a strip search, applying the factors identified above. [ 106 ] Sgt. Graham testified that it is his normal procedure to conduct a strip search at police headquarters after he arrests an individual in a drug investigation. He does this because in his experience in drug investigations, drug traffickers often store drugs in their underwear. In fact, when Sgt.

Graham told the Accused that he was going to conduct a strip search, the Accused removed a plastic bag containing cocaine from the flap of his underwear. [ 107 ] I find that there were reasonable and probable grounds for conducting the strip search of the Accused because of the nature of the offences for which he was arrested (trafficking in cocaine) and because of Sgt.

Graham’s experience that drug dealers often hide drugs in their underwear or on their person. [ 108 ] I have concluded that the Accused’s s 8 rights were not infringed with respect to the pat down or frisk search, the initial search of the blue Acura, or the strip search, as they were all conducted incidental to arrest. Having reached this conclusion, paragraphs 11 and 12 will appear in their original form in Appendix “B”. 5.

Paragraph 13 [ 109 ] Paragraph 13 currently reads as follows: 13) Son Nguyen was observed leaving 14611 52 Street by members of Squad #2 of the Edmonton Drug and Gang Enforcement Unit driving the Acura directly to a suspected drug deal. I believe that Son Nguyen stores cocaine and Canadian Currency at this location where he lives, 14611 52 Street, because of this observation.

I also believe that Son Nguyen stores cocaine and Canadian Currency at 14611 52 Street because Son Nguyen was found to be in possession of 3.7 grams of cocaine “spitballs” that are packaged for resale in small amounts and Canadian Currency. [ 110 ] The concerns of the Accused in respect to paragraph 13 and suggested remedial measures are: • Excision, in its entirety, on the basis of the purported Charter breaches and reliance on unconstitutionally obtained evidence; • Removal, in its entirety, because of overstatements and conclusory statements without foundation for search of the Residence; • Unsupported inferences without factual underpinnings and therefore incapable of correction upon review. [ 111 ] The Crown submits that this paragraph “clearly expresses the opinion” of Sgt.

Graham, that it is not a misstatement and that “it must be considered in context with the preceding paragraphs.” [ 112 ] In light of my finding that the strip search was incidental to the arrest of the Accused, and that the Accused’s s 8 rights were not breached, the evidence referred to in this paragraph was not obtained unconstitutionally and therefore the reference to it should remain in this paragraph. I agree with the Crown that this paragraph must be considered in the context of the ITO as a whole.

With the modification of some of the other paragraphs, as identified in this decision, I find that the paragraph is not an overstatement or a conclusory statement without foundation. I further find that the paragraph does not contain “unsupported inferences without factual underpinnings”. On the basis of finding the evidence on the Accused’s person and in the blue Acura (which I have already found to have been obtained without breaching the Accused’s constitutional guarantees), it was reasonable for Sgt.

Graham to have believed that the Accused stored cocaine and Canadian currency at the Residence. [ 113 ] Paragraph 13 does not require modification and will be rolled into the modified ITO in its entirety and without revision. [ 114 ] This completes the review and modification of the ITO. VII. Conclusion [ 115 ] The modified ITO is presented in Appendix “B”. [ 116 ] There will now be further argument as to whether the modified ITO could form the basis for the issuance of the Warrant.

Argument may be limited to written submissions and a final decision on how to proceed will be dealt with on the date set for pronouncing this decision, which is 9:00 a.m. January 12, 2015. Heard on the 26 th , 27 th , 28 th days of March, 2014 and written submissions filed by the Crown and the Defence. Dated at Edmonton, Alberta this 10 th day of December, 2014

D.R.G. Thomas J.C.Q.B.A. Appearances: Ms. Shivani Naidu-Barrett (Public Prosecution Service of Canada) For the Crown Ms. Aleksandra Simic (Moustarah & Company) For the Accused APPENDIX “A” Indictment In the Indictment before the Court, Son Nguyen is charged with the following offences: (

a) Unlawfully possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; (

b) Unlawfully possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . * * * * * APPENDIX “B” Modified ITO The modified Information to Obtain a Search Warrant is set out as follows: INTRODUCTION 1) I am a Peace Officer in my 9 th year of policing with the Edmonton Police Service. Currently I hold the position of Constable working in the Edmonton Drug and Gang Enforcement Unit (EDGE Unit).

I have conducted and been involved in numerous drug related investigations throughout my service with the Edmonton Police Service including Downtown Division Patrol, Downtown Division Special Projects Team and Edmonton Drug and Gang Enforcement Unit where I have worked for the past two years. I have conducted numerous drug related investigations as well as executed numerous Controlled Drugs and Substances Act Search Warrants. I have been the primary investigator on a recent

part VI wiretap investigation of cocaine trafficking. I am a trained Undercover Operator and have spent numerous hours conducting surveillance on illegal drug transactions and personally purchasing illegal drugs while acting in this capacity. I have knowledge and experience of the facts and matters hereinafter set forth and where based upon information I believe to be true.

All addresses mentioned are in the city of Edmonton in the Province of Alberta. 2) Where information is stated in the Affidavit to have been received by me or other peace officers, I truly believe such information in each and every case, because the peace officers giving, receiving or relying on the information in each and every case were acting in the

execution of their duties as peace officers. In doing so they were under a legal and moral obligation to relate only the truth in relation to the events perceived or transmitted to them, insofar as that was possible for them to do. This includes, but is not limited to, police surveillance information, notes and reports prepared by peace officers, source information received and data from computerized police information networks. 3) During the course of this investigation I have utilized and relied upon computer databases with respect to the subject(

s) of this investigation to identify their place of residence and to determine vehicles registered to the individuals involved in this investigation. These databases include but are not limited to: • M.O.V.E.S. (Motor Vehicle System) is a provincial database, which contains information regarding summonses and traffic tags.

It also contains registered owner information including phone numbers, addresses, driver’s license information and vehicle license plate information; • E.P.R.O.S. (Edmonton Police Reporting and Occurrence System) is an E.P.S. database which contains information from all incidents reported to the E.P.S. and all ongoing investigations. • C.P.I.C. (Canadian Police Information Computer) is a national police computer system with input from all municipal and provincial police departments in Canada as well as the R.C.M.P. It maintains criminal records on subjects as well as outstanding charges and warrants.

C.P.I.C. also accesses the motor vehicle and driver’s license registration data banks maintained by the respective Provincial and Territorial governments throughout Canada OVERVIEW 4) This investigation pertains to the illegal trafficking of cocaine by Son Nguyen born December 15, 1983. INVESTIGATION 5) I received ongoing information from a Confidential Informant within the past few months to recent days. The information has been generalized to protect the identity of the Confidential Informant.

This information that the Confidential Informant received was in one of the following ways: • The confidential informant witnessed Son Nguyen deal cocaine from a blue Acura car; • The confidential informant had the information disclosed to him/her as a result of a conversation he or she had with Son Nguyen; • The confidential informant overheard a conversation where the information was disclosed by Son Nguyen; Information provided by Confidential Informant DG1: • Son Nguyen is a cocaine drug dealer • Son Nguyen deals cocaine from a blue Acura car History with Confidential Informer DG1 I have known Confidential Informant DG1 for less than 1 year.

Confidential Informant DG1 has provided information to me that I have been able to corroborate via Police Computer Systems, experience and additional information provided by Confidential Informants on the illegal drug trade in Edmonton. I have not used information provided by Confidential Informant DG1 to arrest individual(

s) or obtain Judicial Authorizations in the past. I believe the information provided to me by Confidential Informant DG1 because information he/she h as provided in other matters has been proven to be true. Confidential Informant DG1 confirmed Son Nguyen’s identity via photograph. 6) I have known Son Nguyen to be involved in the illegal drug trade from previous investigations into the Cheng Gang that I have been a part of.

I conducted queries of Son Nguyen via EPROS and MOVES finding the following • Son Nguyen is listed as living at 14611 52 Street in Edmonton since July 19, 2009 • Son Nguyen has a class 5 Alberta Operators License registered to 14611 52 Street in Edmonton • A blue 2007 Acura CSX bearing licence plate JAZ470 is registered to 14611 52 Street with the owner being Huong Nguyen born July 1, 1961 7) I then conducted a criminal record check of Son Nguyen finding that he has criminal convictions for: • Assault in 1997 • Assault in 1999 • Possession of a Scheduled Substance for the Purpose of Trafficking in 2000 • Possession of a

Schedule Substance for the Purpose of Trafficking in 2002 • Obstruct a Peace Officer in 2005 • Obstruction in 2005

8)I conducted an EPCOR check on 14611 52 Street finding that EPCOR services are registered to a female Hien Nguyen born December 29, 19 87 at that address. Hien Nguyen is currently an Inmate on full parole.

Hien Nguyen was convicted of Possession of Cocaine for the Purpose of Trafficking in 2009 and is serving 33 months. 9) On September 2, 2011 Members of the Edmonton Drug and Gang Enforcement Unit Squad #2 conducted surveillance on Son Nguyen with the following pertinent observations: 1730 hours – blue Acura bearing Alberta licence plate JAZ470 located at 118 Avenue/84 Street and followed to 14611 52 Street 1745 hours – Son Nguyen is observed exiting the Acura and entering into 14611 52 Street carrying a black plastic bag. 1821 hours – blue Acura bearing Alberta licence plate JAZ470 is observed driving to 137 Avenue/97 Street from 14611 52 Street with Son Nguyen driving into the back parking lot behind Northtown Mall 1833 – 1834 hours – A white male wearing overalls with bushy hair enters into the passenger seat of the Acura for a short period of time behind Northtown mall.

Son Nguyen was observed by members of the Edmonton Police Service to immediately drive east out of the parking lot . Police believed this brief interaction to be a Drug Deal 1847-1848 hours – Son Nguyen drives from Northtown Mall to the alley between 68 Street and 69 Street and north of 119 Avenue and parks for a short period of time. 1901 – 1903 hours – Son Nguyen then drives to 107 Avenue and parks in the alley north of 107 Avenue between 110 Street and 111 Street. Son Nguyen meets up with a female who enters into his Acura and exits a short time later placing a small item into her purse.

Son Nguyen was observed by members of the Edmonton Police Service to drive s immediately away east on 107 Avenue . The female leaves in a silver Dodge Caravan registered to Sheila Swanson born in 1972 . Police believed this brief interaction to be a Drug Deal 1908 hours – Son Nguyen is stopped and arrested for Possession of cocaine for the Purpose of Trafficking at 102 Street and 107 Avenue 10) I believe the above observations are consistent with cocaine trafficking or a “dial-a-dope” cocaine trafficking operation.

In my experience it is common for drug traffickers to drive vehicles not registered to them, meet with individuals for short periods of time to exchange cocaine for cash, use cell phones as a means of communication and hide cocaine in vehicles or on their person. This was the case in this investigation and I believe that Son Nguyen was in Possession of Cocaine for the Purpose of Trafficking because of the information provided by the Confidential Informant, Son Nguyen’s criminal convictions and the surveillance conducted. 11) I read Son Nguyen the Charter of Rights at 1913 hours.

I then transported Son Nguyen to Police Headquarters where I conducted a search. I located 13 “spitballs” or (13) 0.3 gram pieces of crack cocaine that were individually wrapped in clear plastic wrap, twisted and knotted at the top. These “spitballs” were held together in a clear plastic sandwich baggie and were hidden in Son Nguyen’s underwear. I also located $205.00 in Canadian Currency in Son Nguyen’s rear right jeans pocket with his Alberta Operator’s licence. 12) Reg. #2025 Sgt.

DREICHEL of the Edmonton Drug and Gang Enforcement Unit conducted a search of the Acura finding the following: • Blackberry cell phone device • $855.00 Canadian Currency •

(3) Cellular telephones • 0.7 grams of Marijuana Sgt. DRIECHEL advised me that he had read the following drug related text message on one of the Blackberry devices from the Acura from phone number 780-333-8644: “Could I get like 40 buk worth of green or do you have a line on that?” 13) Son Nguyen was observed leaving 14611 52 Street by members of Squad #2 of the Edmonton Drug and Gang Enforcement Unit driving the Acura directly to a suspected drug deal. I believe that Son Nguyen stores cocaine and Canadian Currency at this location where he lives, 14611 52 Street, because of this observation.

I also believe that Son Nguyen stores cocaine and Canadian Currency at 14611 52 Street because Son Nguyen was found to be in possession of 3.7 grams of cocaine “spitballs” that are packaged for resale in small amounts and Canadian Currency. 14) I believe that there is cocaine and Canadian Currency or evidence to support the offences of Possession of Cocaine for the Purpose of Trafficking (Section 5(2) Controlled Drugs and Substances Act) and Possession of Proceeds of Crime (Section 355 of the Criminal Code of Canada) at 14611 52 Street in Edmonton.

I believe that Son Nguyen is in possession of these things because of: • Son Nguyen’s drug convictions for Possession of Controlled Substances for the Purpose of Trafficking • Information provided by the Confidential Informant that Son Nguyen is a cocaine trafficker • The cocaine and Canadian Currency located on Son Nguyen’s person and in the Acura • Observations made of Son Nguyen consistent with cocaine trafficking from the Acura