R v Richards, 2016 ABQB 176

Court of Queen ’ s Bench of Alberta Citation: R v Richards, 2016 ABQB 176 Date: 20160322 Docket: 130379449Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Christopher Brian Richards Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice S.L. Hunt McDonald _______________________________________________________ Introduction [ 1 ] The accused, Christopher Brian Richards, brought an application to exclude evidence on the basis that the police violated his

rights under sections 8, 9 and 10 of the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the " Charter "). [ 2 ] The evidence and submissions in the voir dire were heard between January 4 and 8, 2016. On January 12, 2016, I dismissed the application and ruled the evidence admissible. I indicated that written reasons would follow. These are my written reasons. [ 3 ] Mr. Richards is charged with possession for the purpose of trafficking contrary to section 5(2) of the Controlled Drug and Substances Act , SC 1996, c 19 (the " CDSA ") following his arrest and a search of his residence on February 7, 2013, in Calgary. [ 4 ] The

section 8 argument of the defence challenged the validity of the warrant that was issued pursuant to

section 11 of the CDSA . [ 5 ] Regarding

section 9, the defence submitted that the officer instructing Mr. Richards’ arrest did not have reasonable and probable grounds to believe that Mr. Richards had committed the offence. [ 6 ] With respect to

section 10(

b) of the Charter , the defence contends that this right was violated when the police did not permit Mr. Richards to contact counsel for an extended period of time while in custody. While the Crown concedes that the delay by the police in facilitating access to counsel constitutes a breach of

section 10(b), the Crown and defence disagree as to the length of the delay and whether the impugned evidence ought to be excluded under section 24(2) of the Charter . [ 7 ] The following individuals testified on the voir dire : Cst. Pearson; Cst. Braun; Cst. Kelly; Cst. Christie; Det. Lindemann; Det. Mills; RCMP Cst. Matthies; Det. Tudor; Sgt. Johnson; and Det. Mohan. [ 8 ] I found all the police officers to be forthright when providing evidence and in giving their responses in cross-examination. Timeline of Events [ 9 ] The timeline of events on February 7-8, 2013, the dates of Mr.

Richards’ arrest and the search of his residence, is as follows: February 7, 2013 9:30 a.m. (approximately): Detective Mohan of the Camrose Police Service requests assistance from Sargeant Leckie of the Calgary Police Service (CPS) regarding its investigation of Mr. Richards; Sgt. Leckie calls in CPS Constable Pearson early to assist with the Camrose investigation; CPS Cst. Pearson speaks with Det. Mohan who provides him with a brief overview of the Camrose police’s investigation, including Mr. Richards’ Calgary address on Pantego Way. Det. Mohan informs Cst.

Pearson that the Camrose Police had received information that Mr. Richards was a drug dealer and supplier in the Camrose and surrounding areas. Additionally, Det. Mohan had received information that Mr. Richards had plans to attend a drug meeting in Red Deer that day. 10:00 a.m. (approximately): Cst. Pearson asks a CPS analyst to create a target sheet on Mr. Richards for identification purposes and also to provide any addresses and vehicles relating to Mr. Richards; Cst.

Pearson calls Red Deer RCMP Officer Matthies to form a team to assist with a drug meet that may unfold in Red Deer that day. 10:15 a.m. (approximately): Cst. Pearson forms a team and briefs them with an overview of the assistance request from Det. Mohan from Camrose. He advises them the objective is to follow Mr. Richards and track any activity relating to drug trafficking, and to document any information that may give grounds leading to an arrest or grounds to obtain a CDSA

section 11 search warrant. 11:32 a.m.: A covert surveillance team is set up at Mr. Richards’ residence on Pantego Way. 11:36 a.m.: CPS Cst. Da Silva-Spence of the surveillance team sees a Caucasian male unknown to her exit the residence, remove a license plate from a brown Acura and install it on a white Dodge Caravan. The Caravan left the residence and another unknown Caucasian male individual installed a different license plate onto the brown Acura. 11:36-11:50 a.m.: The Dodge Caravan is followed by some of the members of the surveillance team.

At one point the team loses the Caravan, but it is then located by CPS Sgt. Leckie at a car wash in North East Calgary. The driver is identified as the registered owner of the Caravan. 12:42 p.m.: A black Ford F-150 truck with a Saskatchewan licence plate pulls up in the driveway of Mr. Richards’ residence. The driver is an unknown male. 12:59 p.m.: Constable Kelly/1:15 pm Cst. Pearson: CPS Cst. Lindemann observes Mr. Richards leaving his residence and get into the passenger seat of the F-150 truck.

The recently arrived unknown male drives the truck. 1:00 - 2:15 p.m.: The surveillance team follows the F-150 from Mr. Richards’ Calgary residence to Red Deer. 2:15 p.m.: Cst. Lindemann observes the F-150 enter the parking lot of Costco located on Gasoline Alley in Red Deer. 2:17 p.m.: Cst. Lindemann observes the F-150 leave the Costco parking lot. 2:19 p.m.: Red Deer RCMP relay over police radio that while in the parking lot of Costco, Mr. Richards exited the F-150 and walked

with his hands in his pockets to a tan GMC Jimmy. Mr. Richards entered and sat in the passenger seat of the Jimmy and was observed to be there for approximately one minute. He then exited the Jimmy and returned to the F-150. 2:20-2:21 p.m. (approximately): The F-150 drove to a gas station in Gasoline Alley of Red Deer. The driver exited the truck and went into the store. 2:22 p.m.: The driver is observed to be back in the F-150. 2:25 p.m.: Mr.

Richards is observed to be in the passenger seat of the F-150. 2:26-3:32 p.m.: The surveillance team follows the F-150 returning from Red Deer to Calgary. 2:44 p.m. (approximately): The tan GMC Jimmy (observed in the Costco parking lot) is pulled over by the RCMP in Red Deer, the driver is arrested and approximately three ounces of cocaine is seized from the glove compartment of the vehicle. 3:08 p.m.: Information regarding the arrest is relayed by phone from the Red Deer RCMP to Cst. Pearson while he is travelling back to Calgary following the F-150 truck. 3:10 p.m. (approximately): Cst.

Pearson orders officers dressed in uniform to stop the F-150 and to arrest Mr. Richards for possession for the purpose of trafficking. 3:30 p.m.: The F-150 is stopped by Cst. Going and Cst. Braun of the CPS Tac Team at the off ramp on Stoney Trail and Harvest Hills Boulevard in North East Calgary. 3:31 p.m.: Officer Braun arrests Mr. Richards for possession of controlled drugs for the purpose of trafficking and provides him his Charter rights. Mr. Richards expresses his wish to contact counsel. 3:45 p.m.: At the arrest site, Officer Braun turns Mr. Richards over to CPS Cst.

Christie, who arrived at the scene soon after the arrest. 4:19 p.m.: Cst. Christie transports Mr. Richards to Westwinds CPS headquarters. Mr. Richards is searched and placed in a holding room by Cst. Christie. 4:20 p.m.: Cst. Kelly takes over custody of Mr. Richards at Westwinds from Cst. Christie. 4:32 p.m.: Cst. Kelly cautions Mr. Richards and provides him his Charter rights. Again, Mr. Richards asks to contact counsel. Cst. Kelly advises Mr. Richards that he may contact counsel once the police obtain entry on the pending search warrant. 5:45 p.m.: Joshua Fader, a roommate of Mr. Richards, arrives at Mr.

Richards’ Pantego Way residence and is arrested. 7:13 p.m.: The first telewarrant application is sent by fax by Det. Mohan to the Justice of the Peace Hearing Office in Edmonton. 8:40 p.m.: Jonathan Furey, a roommate of Mr. Richards, arrives at Mr. Richards’ residence and is arrested. 9:01 p.m.: Cst. Kelly allows Mr.

Richards to call his lawyer. 9:22 p.m.: The first telewarrant application is rejected on the basis that Appendix A is not deemed to be part of the Information to Obtain Warrant request. 9:40 p.m.: The second telewarrant application is made by fax to the Justice of the Peace Hearing Office in Edmonton. 10:00 p.m.: The search warrant is signed by Justice of the Peace Wilson of the Hearing Office in Edmonton. 11:55 p.m.: The search warrant is executed by CPS at Mr. Richards’ residence on Pantego Way. February 8, 2013 1:02 a.m.: Cst. Lindemann enters the Pantego Way residence.

He took a video of the interior of the residence. He then was assigned as an exhibit handler – other police officers conducted a search and he was called over to seize anything relevant to the investigation. He made notes of items seized and noted their location in either the basement or main floor diagram he made of the residence. He then returned to the Westwinds police headquarters and sent samples of the drugs seized to Health Canada for analysis, and entered the balance of the exhibits into the property unit at Westwinds. 1:05 a.m.: Det. Mill arrives at residence.

At 1:27 a.m. he is assigned as the exhibit handler for the second floor of the residence. He returned to Westwinds. He sent 28.5 grams of suspected cocaine to Health Canada for analysis. The other relevant documents and drug paraphernalia he seized that were related to the investigation were placed by Det. Mills in a locker of the property unit at Westwinds.

Section 9 - Reasonable and Probable Grounds Accused’s Position [ 10 ] Counsel for the defence submits that Cst. Pearson did not have reasonable and probable grounds to arrest Mr. Richards. She argues that, at best, Cst. Pearson, in directing his arrest, may have been suspicious of the short meet Mr. Richards had conducted with

the driver of the GMC Jimmy in the Costco parking lot. Counsel submits that jumping to the conclusion that it was a drug meet was premature given the limited verified information within Cst. Pearson’s knowledge. Arrest based on suspicion, a hunch or pure hope and nothing more is not reasonable and is therefore illegal. Crown’s Position [ 11 ] The Crown submits that the police had reasonable grounds to arrest Mr. Richards. Compelling, corroborated and credible source information amassed over 15 months from 13 separate confidential sources indicated Mr.

Richards was supplying a drug distribution network involving at least nine different individuals. On the day of the arrest, Mr. Richards drove to Red Deer from Calgary for a brief one to two minute personal meeting clearly suggesting an exchange of something valuable. Given the source information on Mr. Richards, it was likely drugs. On this basis alone, the Crown submits the police had reasonable grounds to arrest Mr. Richards. [ 12 ] In addition to these grounds, the Crown submits that prior to Mr.

Richards’ arrest the Red Deer RCMP arrested the driver of the GMC Jimmy and located approximately three ounces of cocaine. The police had reasonable grounds to believe that the interaction between Mr. Richards and the driver of the GMC Jimmy (Mr. Baylis) was a drug transaction; therefore Mr. Baylis’ arrest was valid, and he was searchable incident to arrest. As such the evidence of the three ounces of cocaine in Mr. Baylis’ GMC Jimmy is a factor that the police could properly consider when determining their reasonable grounds to arrest Mr. Richards.

Summary of relevant evidence [ 13 ] On February 7, 2013, Cst. Pearson was a member of the Calgary Police Service Gang Enforcement Team. He is currently an acting detective and is assigned to the General Investigations Section. Cst. Pearson had been with the CPS Gang Enforcement Team since August 2010, and held the position until June 2015. Over that time he was involved in over 50 high level drug investigations. He is also trained as an undercover officer and also in covert surveillance. [ 14 ] On February 7, 2013, at the direction of Sgt. Leckie, Cst.

Pearson was called into work early and told to contact a detective of the Camrose Police Service. He believed the detective was called Mahon (the detective is actually Det. Mohan). Det. Mohan gave Cst. Pearson a “brief overview” of an investigation he had been conducting into Mr. Richards for over two years. Cst. Pearson understood that Det. Mohan had an address in Calgary where he believed Mr. Richards resided and Det. Mohan “was looking to try to execute” a CDSA search warrant at that address on Pantego Way. Cst. Pearson was not aware of what type of drug investigation it was. [ 15 ] Cst.

Pearson was told that Mr. Richards was a drug dealer and he was known to meet drug runners just outside of Camrose or in Red Deer to supply illicit drugs. [ 16 ] The Camrose Police Department requested assistance with surveillance. The ultimate goal was for the CPS to observe Mr. Richards for activity consistent with drug trafficking and to help finalize the grounds for a CDSA warrant. It was not pre-determined that Mr. Richards would be arrested that day. [ 17 ] Cst. Pearson was tasked with setting up a team to provide surveillance to follow the movements of Mr.

Richards for a possible drug trafficking offence anticipated to occur that day at a drug meeting planned in Red Deer. The RCMP in Red Deer was contacted by Cst. Pearson to assist Det. Mohan with surveillance as well, as the Camrose Police Department did not have a full surveillance team. [ 18 ] After his conversation with Det. Mohan, Cst. Pearson instructed an analyst to prepare a target sheet. At 10:15 am, he met with his team to review the objectives. The objective was to follow Mr. Richards to observe any drug related activity.

If they did view drug related activity they would then make a determination on the arrest at that point. The team members were provided with the target sheet relating to Mr. Richards. The surveillance team went to the address at Pantego Way and covert surveillance was set up at approximately 11:45 a.m. Cst. Pearson did not accompany them at this point. He was acting as a liaison between the team and Det. Mohan. [ 19 ] At approximately 1:15 p.m. on February 7, 2013, Mr.

Richards was observed by the surveillance team leaving his residence and entering as a passenger into a black Ford 150 truck with a Saskatchewan driver’s license plate. It was being driven by an unknown party. [ 20 ] Cst. Pearson joined the surveillance team as they travelled northbound on Alberta Highway 2 towards Red Deer. [ 21 ] Mr. Richards drove directly to the Costco parking at the south end of Red Deer on Gasoline Alley. [ 22 ] Cst. Pearson was not directly observing Mr. Richards but was being relayed pertinent surveillance information by RCMP Officer Matthies from Red Deer over his cell phone.

Officer Matthies was either viewing, or had a team member viewing the arrival of the black Ford F-150 as it pulled up to a tan GMC Jimmy in the Costco parking lot at 2:15 p.m. Cst. Pearson maintained contact with Det. Mohan and RCMP Officer Matthies of the Red Deer RCMP by 3-way radio. [ 23 ] At 2:15 P.M., Cst. Pearson was still in a vehicle driving towards Red Deer. He was receiving observations over the phone from RCMP Officer Matthies who was relaying information he was receiving from one of his team members. [ 24 ] It was reported to Cst. Pearson by Officer Matthies that Mr.

Richards exited the Ford F-150 and entered into the passenger side of the GMC Jimmy for approximately a minute. His hands were in his pockets on the walk between the vehicles. After a minute, he exited the GMC Jimmy, returned to the Ford F-150 and the Ford F-150 left the Costco parking lot. The GMC Jimmy left in a different direction. [ 25 ] At about 3:08 p.m., Officer Matthies called Cst. Pearson to advise that the GMC Jimmy was stopped in Red Deer. He advised that the driver was arrested and approximately three ounces of cocaine was seized from the glove compartment.

[26] Based on the information that Cst. Pearson received from Det. Mohan regarding Mr. Richards, the trip taken and the shortduration of the meet, Cst. Pearson testified that that he thought the situation was consistent with a drug meet. Specifically, he stated: So my information I received, from Det. Mohan, in regards Mr. Richards supplying drugs in Camrose: meeting a vehicle, being a-- orone of his runner vehicles or a vehicle associated to somehow associated to the drug trafficking in Camrose, being a GMC Jimmy:meeting that vehicle in Red Deer, which is consistent with the information I received from Det.

Mohan; the direct trip there; the shortmeet in the vehicle and both vehicles leaving after that, in my mind leads up to be consistent with drug dealing. [27] At this point, based on what Cst. Pearson saw or heard and the way the events had transpired, coupled with the information hereceived from Officer Matthies that there were approximately three ounces of cocaine found in the glove compartment of the GMCJimmy, Cst. Pearson was satisfied that a drug deal had taken place. He contacted CPS to arrange for uniformed officers to stop the FordF-150 during its return trip from Red Deer and to arrest Mr.

Richards for possession for the purposes of trafficking. Cross-Examination of Cst. Pearson [28] Cst. Pearson testified that he did not confirm the information he received from Det. Mohan. He conceded that he did not knowwho was relaying the information to Officer Matthies about the meeting in the Costco parking lot in Red Deer. Additionally, Cst.Pearson testified he did not know where his team was in relation to Mr. Richards, the Ford F-150 truck and the GMC Jimmy in theCostco parking lot. Legal Principles [29]

Section 9 of the Charter protects an accused from arbitrary detention and imprisonment. [30] In this case, the arrest was made without a warrant. Peace officers are authorized to arrest persons under s. 495 of theCriminal Code, RSC 1985, c C-46, without a warrant.

Section 495 provides as follows: 495.1

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence, [31] The Supreme Court of Canada set out the legal test to apply in determining whether a police officer had reasonable andprobable grounds to arrest a person: R v Storrey, (1990) (SCC), 1 SCR 241 at para 14. Cory J, speaking for themajority, stated at paras 16 and 17: There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she hasreasonable and probable grounds to make an arrest.

Rather, it must be objectively established that those reasonable and probable groundsdid in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable andprobable grounds existed to make the arrest. See R. v Brown (1987), (NS CA), 33 C.C.C. (3d) 54 (N.S.C.A.), at p. 66;Liversidge v Anderson, [1942] A.C. 206 (H.L.), at p. 228. In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. [32] The objective component of the test requires that a reasonable person, standing in the position of the arresting police officer,would have concluded that there were reasonable and probable grounds to make the arrest. [33] In the absence of reasonable grounds that the person has committed an offence, the police have no power to arrest a person forthe purpose of collecting further evidence.

This principle was established by the Ontario Court of Appeal in R v Duguay (1985), (ON CA), 18 CCC (3d) 289 (Ont CA), aff’d on other grounds (1989), (SCC), 46 CCC (3d) 1 (SCC). [34] Cst. Pearson was the police officer who made the decision to have Mr. Richards arrested. His evidence must be analysed todetermine whether he had the subjective grounds for directing the arrest of Mr. Richards. The information before Cst. Pearson was: • Cst. Pearson was told by Det. Mohan that Mr. Richards had been the subject of a drug investigation for over two years; • • Det. Mohan said Mr.

Richards met runners outside of Camrose and Red Deer to supply them with drugs. • • Mr. Richards travelled in the Ford F-150 directly to Red Deer, which was one of the places indicated by Detective Mohan whereMr. Richards often met his drug runners; • The short one minute meeting in the Costco parking lot and the immediate return to Calgary;

• During the meeting, Mr. Richards exited his vehicle and walked to the GMC Jimmy, with his hands in his pocket, he entered theGMC Jimmy passenger seat for approximately one minute and then immediately returned to the F-150; • The seizure of three ounces of cocaine from the GMC Jimmy just subsequent to the Costco meeting between Mr. Richards and thedriver of the GMC Jimmy. • Mr. Richards returned directly to Calgary in the F-150 truck after a short stop for gas and driving through a KFC restaurant atGasoline Alley. [35] Cst. Pearson testified that “based on the information that he received from Det.

Mahon [sic], in regards to Mr. Richards andthe trip taken and the short time of the meet, I’d say it was consistent with a drug meet.” As a result of the information, Cst. Pearsontestified that he believed he had the necessary reasonable and probable grounds to arrest Mr. Richards. [36] I am entitled to take Cst. Pearson’s experience and training into account in assessing his subjective grounds for the arrest. Cst.Pearson has been with the CPS since May 2005. In February 2013, he was working in the Gang Enforcement Team. Over the course ofhis five years with Gang Enforcement, Cst.

Pearson testified he participated in more than 50 drug investigations or investigationsinvolving drug activity. The scope of the drug investigations varied but he testified they typically targeted higher-level druginvestigations. As a general rule, he said he was involved in more complex drug investigations. [37] With respect to drug investigations, Cst. Pearson is trained as undercover operator and also in covert surveillance. Hedescribed “covert surveillance” as following a suspect in a capacity where the officer would not be observed by the suspect. [38] When I review the evidence provided by Cst.

Pearson, I find Cst. Pearson had the requisite subjective belief to arrest Mr.Richards. The information he received, combined with his experience in complex drug investigations and covert surveillance, gave himthe requisite reasonable and probable grounds to direct the arrest. [39] Did Cst. Pearson have the objective reasonable grounds to arrest Mr. Richards?

In analyzing this question I must determinewhether there were objective facts from which a reasonable person could infer that there were reasonable and probable grounds to makethe arrest. [40] Recently in R v De Jong, 2016 ABQB 116, Justice Manderscheid stated at para 59: The objective standard for examining the officer's subjective belief requires the Court to consider: whether "a reasonable person placedin the position of the officer must be able to conclude that there were indeed reasonable and probable grounds" for forming the opinionthat the Accused has committed the offence: Can v Calgary (Police Service), 2014 ABCA 322 at para 3, 560 AR 202 [Can v C(PC)].The Court should not evaluate the pieces of evidence separately, but "should [determine] whether the circumstances upon which theCrown relied as objective justification for the arrest, considered cumulatively, amounted to reasonable and probable grounds for thearrest": R v Bracchi, 2005 BCCA 461 at paras 4, 20-21 [emphasis added], citing R v Debot (1989), (SCC), 52 CCC (3d)193 (SCC) at 206ff. [41] In my view, a reasonable person in the shoes of Cst.

Pearson on February 7, 2013, would have formed the reasonable andprobable grounds to make an arrest. The objective constellation of factors are listed above. Those factors including the fact that Cst.Pearson was told that Mr. Richards was the subject of a drug investigation for over two years and that he travelled to Red Deer, where heoften met drug runners. Further, the short duration of the meet in the Costco parking lot before he headed back to Calgary would lead areasonable person in Cst. Pearson’s shoes to believe that a drug transaction had taken place.

These factors taken together were sufficientin their cumulative effect to constitute reasonable and probable grounds to order the arrest of Mr. Richards.

Section 8 - Validity of the Search Warrant; Sufficiency of theInformation to Obtain and Legality of the Warrant [42] The police executed the search warrant at Mr. Richards’ residence at 11:55 p.m. on February 7, 2013. The search locateddrugs, cell phones, cash, bear spray and drug paraphernalia. The police also found a passport belonging to Mr. Richards, anddocumentation and certificates tying him to the location. [43] Mr. Richards argued that the search warrant was deficient and that the search of his property was therefore warrantless andunreasonable and constituted a breach of his rights under

section 8 of the Charter. [44] The warrant in this case was a telewarrant, obtained pursuant to

section 529.5 of the Criminal Code, which states: If a peace officer believes that it would be impracticable in the circumstances to appear personally before a judge or justice to make anapplication for a warrant under

section 529.1 or an authorization under

section 529 or 529.4, the warrant or authorization may be issuedon an information submitted by telephone or other means of telecommunication and, for that purpose,

section 487.1 applies, with anymodifications that the circumstances require, to the warrant or authorization. The Evidence in the Information to Obtain

[ 45 ] The ITO is a 17-page document compiled by Det. Mohan. In it Det. Mohan outlines his background as a police officer and his experience in drug-related investigations. He details the foundation on which he believed there were reasonable and probable grounds to search Mr. Richards’ residence on Pantego Way. Det. Mohan prepared the ITO in Camrose, Alberta, on February 7, 2013 and submitted it by fax. The ITO was certified by a Justice of the Peace in Edmonton on that date at 10:00 p.m. [ 46 ]

Section 1 sets out the reasons why Det. Mohan sought a telewarrant; namely that there was no Provincial Court Judge or Justice available, that he was unsuccessful in his attempt to contact the Judge residing in Camrose, that other Judges and Justices do not wish to be contacted after hours, and that time was of the essence to prevent the destruction of evidence. [ 47 ]

Section 2 enumerates the alleged offenses against Mr. Richards and the specific items expected to be located at the search: cocaine, steroid capsules, MDMA powder, capsule pressing machines, packaging materials, scales, scoresheets, residency documents, cash (Canadian currency), cellular phones, phone SIM cards, phone billing information, laptops, hard drives and thumb drives. [ 48 ] The ITO then details the address and nature of the location that was the subject of the search, as well as Mr. Richards’ name and city of residence. Det.

Mohan provides his background as a drug investigator with the Camrose Police Service at paragraphs 1 and 2. He describes the nature of his position as investigating, disrupting and suppressing illicit drug trafficking activity in the Camrose area. Paragraph 3 is a brief overview of the sources for the information presented, and paragraph 4 explains that some of the information in the ITO is generalized or redacted in order to protect identities of informants. Paragraphs 5 and 6 state the reasons Det.

Mohan believed the facts in the ITO to be true, including documentation procedures of the Camrose Police Department and the legal and moral obligation of every police officer to only relate true events. [ 49 ] Paragraphs 7 (a) – (

g) provide the details of the databases used in the investigation to identify places of residence, vehicles, involvement with police and criminal records: The Canadian Police Information Centre; the Alberta Motor Vehicle System; The Police Information Retrieval System; Police Reporting and Occurrence System; The Justice Online Information Network; the Police Information Management System and the Alberta Government Corporate Registries System. [ 50 ] Paragraphs 8 and 9 give another general overview of the alleged offenses and CDSA authority. Paragraphs 10 and 11 state that Mr.

Richards has been known to Camrose Police since 2008, and that he uses the nickname or alias “Bean.” [ 51 ] In paragraphs 12 - 68 Det. Mohan set out the history of police communication with a variety of confidential informants. Between 2009 and 2013 there were a total of 13 informants (Informants “A” – “M”) who spoke with Det. Mohan or another member of the Camrose Police about the drug business conducted by Mr. Richards. These paragraphs detail: a. the sale of crack cocaine, powder cocaine, marijuana and ecstasy; b. shipping of drugs and weapons into Alberta from other provinces; c. arrests of Mr.

Richards’ alleged associates; d. seizure of drugs from behind Mr. Richards’ residence, and; e. the locations around Camrose, Alberta where Mr. Richards sells drugs and the area around Camrose “controlled” by Mr. Richards and his crew of drug runners. [ 52 ] Det. Mohan went on to detail the events of February 7, 2013, in paragraphs 69-70, consistent with the timeline I have already provided above. [ 53 ] Det. Mohan described additional grounds for the warrant in paragraphs 71-94, including the following: a. Mr. Richards’ history of encounters with police and possession of illegal weapons in Nova Scotia; b. Mr.

Richards’ criminal record; c. Arrest of Mr. Richards’ brother and police reports that Mr. Richards sent drugs from western Canada to his brother in Halifax, Nova Scotia; d. Confirmation from Bell Mobility that a certain phone number known by the police to be connected to the drug trade in Camrose was registered to Mr. Richards; e. Registration of Mr. Richards’ business, “No Regret Laser Removal” at the same address as the property in Calgary named on the ITO as the dwelling house the police intended to search; f. Previous police surveillance and observations conducted by Det.

Mohan and 12 other members of the Calgary and Camrose police forces of Mr. Richards’ associates and Mr. Richards himself at that property, and; g. Various vehicles registered to Mr. Richards and his associates at that property. [ 54 ] Det. Mohan concluded the ITO by highlighting the relevant reasonable grounds on which he believed the offences charged had taken place and why a search of the property detailed in the ITO would reveal a large quantity of evidence relevant to the charges under the CDSA .

He listed the following grounds for why it was necessary that the execution of the search warrant take place at night, without the police announcing their entry. Det. Mohan wrote as follows: a. There is an imminent threat to the members conducting the search and the destruction of vital evidence. b. Should the warrant not be executed with a night time provision, vital evidence will be destroyed.

c. Should this condition not be granted, the loss of vital evidence and injuries to the members involved could occur. d. In the context of Controlled Drugs and Substances Act investigations, Detective Mohan stated, “it has been my experience thatoften those involved in drug trafficking often have access to weapons in the event that they are encountered by law enforcementpersonnel or other drug rivals. Unannounced entry is imperative in preventing injuries to officers and subjects.

As well, it has also beenmy experience that when encountered by law enforcement personnel, those involved in drug activities will make attempts to destroydrugs and other trafficking related materials in order to evade being charged with serious offences, which carry lengthy periods ofincarceration if convicted. Unannounced entry is imperative in order to prevent the destruction of vital evidence pertinent to thisinvestigation.” [55] The evidence in the ITO falls into two categories.

Ultimately the reviewing judge must consider the evidence as a wholerather than in a piecemeal fashion, though it is necessary to recognize these categories for the legal assessment of the evidence later on. [56] The first category is the informer-based evidence. According to the ITO, the earliest information regarding Mr. Richards’drug activities was provided to the Camrose Police Department by Informants A and B in January 2009. Informant B spoke with Det.Mohan directly. Informant A spoke to Sergeant Corbett of the Camrose Police Department, who made a report of the conversation.

Det.Mohan reviewed that report in December 2011. Informants C and D spoke directly with Det. Mohan in March and April 2009, whileInformant E and F’s information was recorded in a report by Sgt. Corbett in April 2009, and was reviewed by Det. Mohan in December2011. Informants G and H were initially in contact with Sgt. Brisson and Sgt. Fraser of the Camrose Police Department in June andSeptember of 2009. Det. Mohan later spoke to Informant G himself, and reviewed the reports of Sgt. Brisson and Sgt. Fraser. InformantsI and K spoke with Det.

Mohan in June 2010 and May 2011, respectively, while Informant J spoke to Cst. McDonald of the CamrosePolice Department. Det. Mohan reviewed Cst. McDonald’s report. The final Informants, L and M, communicated with Cst. Steil of theCamrose Police Department in March and December 2012, respectively. Those reports were reviewed by Det. Mohan on February 7,2013, the date the ITO was written. [57] Some of the informants, particularly C and K, provided information to Det. Mohan on multiple occasions between May 2011and January 2012. [58] The second category of evidence Det.

Mohan points to in the ITO are the observations of 12 police officers made betweenJuly 2012 and February 2013. Det. Mohan offered this information in support of the details about Mr. Richards’ activities provided bythe informants. Det. Mohan also drew on his own experience in investigating “a multitude of mid-to-high level drug dealers,” to drawconclusions on the nature of the evidence he presented. Essentially, Det. Mohan alleged there was a nexus between Mr. Richards, thedwelling house for which the warrant was sought and the trafficking of prohibited substances. Cross Examination of Det.

Mohan [59] The ITO formed the basis for the warrant to search Mr. Richards’ residence. While cross-examination of the affiant of an ITOis not automatically available, if there is a basis for the view that “the cross-examination will elicit testimony tending to discredit theexistence of one of the preconditions of the authorization” then a cross-examination is warranted: R v Garofoli, (SCC),[1990] 2 SCR 1421 para 112; R v Lising, 2005 SCC 66 , [2005] 3 SCR 343 at para 10. [60] Det.

Mohan was cross-examined on the ITO, though the cross-examination was limited to questions aimed at attacking thebasis for issuing the warrant. Because the warrant was issued via fax by a Justice of the Peace in Edmonton, Det. Mohan did not swear aformal oath when the application was made. He was clear in his evidence, however, that the assertions made in the ITO were binding onhis conscience as if they had been sworn to. [61] Det. Mohan made two warrant applications on the evening of February 7, 2013. The first application was submitted at 7:13p.m.

He received a rejection notice from the Justice of the Peace at 9:00 p.m. The rejection notice cited “Appendix ‘A’ not part of swornInformation to Obtain, no reasons for night entry.” He went on to make the necessary changes to the second draft of the ITO; namely, toinclude “Appendix ‘A’” in the proper main

section of the ITO rather than attaching it as an Appendix, and to give reasons for nightentry. Det. Mohan re-used the original fax cover sheet from the first application when sending the second application. In amending theapplication, he forgot to change the entry on the coversheet that asks whether there had been any previous warrant applications. I amsatisfied that this was mere oversight, and was not intentional on the part of Det. Mohan. [62] The second application was successful.

On the issuing page of the ITO containing the signature of the Justice of the Peace,the box indicating that “a prior application has been made in this matter” was ticked. The issuing justice was therefore aware that theITO application was not the first in the matter. [63] In cross-examination Det. Mohan gave further evidence on Cst. McDonald, who authored one of the reports cited in the ITO.He was aware at the time he wrote the ITO that Cst. McDonald had been suspended from duty and that there was an investigationunderway regarding Cst. McDonald’s suspension. Det.

Mohan was not aware of the precise nature of the inquiry, though he believed itwas concerned with deceit. He did not know the exact date the suspension began, and stated that the investigation was “pretty quiet.” Hedid not turn his mind to the status of the investigation nor Cst. McDonald’s suspension when mentioning his report in the ITO. The Law [64] In order for a search to be valid, some form of prior authorization is required. Under the CDSA, a valid search requires awarrant.

Section 11 of the CDSA sets out the requirements for a warrant:

(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) anything in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) anything 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. [65] There is a duty on police to act reasonably and on the issuing Justice of the Peace to act judiciously when granting a warrant.The starting presumption of a reviewing court is therefore that a warrant is valid.

The onus is on the party challenging the warrant toestablish invalidity: Québec (Procureur général) c Laroche, 2002 SCC 72 at para 88. [66] A police search will be lawfully valid if there are “reasonable and probable grounds, established upon oath, to believe that anoffence has been committed and that there is evidence to be found at the place of the search,” Hunter v Southam Inc, (SCC), [1984] 2 SCR 145 at para 43. This is the minimum standard required for a search to be valid under

section 8 of the Charter.Suspicion and speculation are not sufficient. [67] The standard of proof to assess reasonable grounds for a search is “reasonable probability rather than proof beyond areasonable doubt,” R v Debot, (SCC), [1989] 2 SCR 1140 at para 54.

This standard has also been described as“credibility-based probability,” which requires the ITO to disclose “a substantial basis for the existence of the affiant's belief,” R vMorris, 1998 NSCA 229 at para 31. [68] When reviewing a warrant’s underlying ITO, a reviewing court should consider the following principles as summarized byFish J in R v Morelli, 2010 SCC 8: [40] In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued" (R v Araujo, 2000 SCC 65, [2000] 2 SCR 992, at para54 (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. [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).

Furthermore, thereviewing court may have reference to "amplification" evidence — that is, additional evidence presented at the voir dire to correct minorerrors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. [69] The Supreme Court is clear that a reviewing court must not quash a warrant simply because it would not have issued thewarrant.

A warrant should only be quashed if the reviewing court considers the totality of the evidence and finds there was no valid basisupon which the warrant could have been issued in the first place. [70] Like any affiant on an ex parte application, the officer who swears the ITO is under a duty of full and frank disclosure. Theofficer must not “pick and choose” among the relevant facts to produce a favourable narrative; rather the obligation is to disclose allmaterial facts, favourable or not.

The only permissible omissions are irrelevant or insignificant details: Morelli para 58. [71] Ultimately, the reviewing judge must consider all the evidence that was available to the issuing Justice of the Peace andcontextually analyze the ITO as a whole.

Piecemeal evaluation of the evidence is insufficient, “because each piece of evidence coloursthe other pieces… and a fuller picture emerges by considering all of the evidence together”; R v Clow, 2012 ABQB 656 at para 19. [72] Because a reviewing judge does not engage in a de novo assessment of the evidence provided in support of the warrant,validity can be challenged on facial and sub-facial basis.

A facial validity challenge requires examination of the ITO and a determinationwhether, on the face of the information disclosed, the Justice of the Peace could have issued the warrant: R v Araujo, 2000 SCC 65 atpara 19.

Neither the ITO nor any other record can be amplified on a facial examination: R v Wilson, 2011 BCCA 252 at para 39. [73] Sub-facial challenges go behind the form of the ITO to attack the reliability of its content: Araujo at para 50; Wilson at para40. “Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitutehis or her view for that of the authorizing judicial officer”: R v Sadikov, 2014 ONCA 72 at para 38; Araujo at para 51.

Issues [74] There are numerous issues at play in assessing validity of the ITO and the subsequent search warrant: Facial Validity: a. Was there reliable evidence in the ITO, which might reasonably be believed, on the basis of which the warrant could have beenauthorized? b. Based on the totality of the circumstances does the evidence revealed in the ITO meet the statutory requirements set out in section11 of the CDSA for issuing the warrant? c. Does the ITO disclose reasonable and probable grounds to believe that items related to the offence would be found at the dwelling

house? Sub-Facial Validity a. Does the ITO written by Det. Mohan, excised of any misleading or erroneous information, altered so as to include any relevantinformation improperly omitted, and amplified, if necessary, on review, provide the reasonable grounds required to issue a warrant for asearch of Mr. Richards’ home? Discussion [75] For the reasons discussed below, I find that the ITO contained sufficient evidence such that the Justice of the Peace validlyissued the search warrant on February 7, 2013. The search of Mr. Richards’ home was therefore warranted and reasonable and did notbreach his rights under

section 8 of the Charter. [76] I also note that this was a telewarrant application; therefore Det. Mohan did not formally swear the ITO as he would havedone if he appeared before the issuing Justice in person. I accept that Det. Mohan was aware and mindful of the duty of a police officerto be true and accurate in preparing an ITO. Facial Validity [77] As discussed above, assessing a warrant on its face or surface level restricts the reviewing judge to consider only theinformation that was available to the issuing Justice of the Peace.

The evidence called on the voir dire cannot be considered; rather theanalysis is limited to the information provided in the ITO to determine if there was sufficient credible and reliable evidence for theJustice to have issued the warrant. [78] The defence challenges the ITO on the grounds that it provided insufficient reliable evidence for connecting the offencealleged and the things to be found at the dwelling house. It argues that the ITO therefore failed to disclose the requisite reasonablegrounds to justify the issuance of a search warrant.

Defence further argues the information in the ITO was vague, dated, unsubstantiatedand of little to no probative value. It points to issues such as narrative form, inclusion of the criminal histories of Mr. Richards and someof his associates, and offender generalization as being particularly problematic. [79] The Crown argues that the ITO it is sufficient when examined in its totality, and that it contains reliable evidence on whichthe Justice of the Peace could have issued the warrant.

Specifically the Crown refers to the cumulative strength of informer information,received month after month, which the Crown argues when, considered together, and is internally corroborative. [80] While I appreciate counsels’ submissions on the above points, I have focused my analysis on the reliability of second-handpolice reports and of informant information.

These areas form the majority of the ITO now before me, and informant evidence inparticular is the subject of significant discussion in the relevant case law. [81] I agree with the Crown that, on its face, the ITO details sufficient evidence such that the issuing Justice could have reliedupon in granting the warrant. Det.

Mohan included some second-hand information he obtained from other officers’ reports, but suchhearsay evidence is permissible in ITOs so long as the investigator discloses the source of the evidence so its weight can be assessed. [82] The case law states that if the source of ITO evidence is a report compiled by a different officer, the affiant should providedetails outlining the nature of the report, how the information was obtained and why it should be considered credible and reliable; see ReRestaurant Le Clémenceau Inc v Drouin et al, (SCC), [1987] 1 SCR 706 at para 7.

It is apparent from the analysis inDrouin that where the facts are not disclosed within the ITO, the judge has nothing to verify the reasonableness of the belief. It must besupplied by admissible evidence. [83] In R v Pastro, (SK CA), [1988] SJ No 412 (Sask CA), the Court ruled on the sufficiency of the material tojustify a warrant under the then Narcotic Control Act. Vancise J stated at para 58: It is not enough that the police officer swears he has reasonable and probable grounds for so believing the facts stated.

There must befacts given on oath from which the justice can judicially satisfy himself that there are rational grounds for the requisite belief. [84] I am satisfied as to the reliability of Det. Mohan’s description of the second-hand reports relied upon in the ITO. In eachinstance, he specifies the date on which he read each report and who authored it. He also included the date the report was written. Validissuance does not require more than this; indeed, it is necessary for an ITO affiant to synthesize and convey evidence in a concisemanner.

No further details were necessary. [85] The Supreme Court in Garofoli discussed the requirements for reliability of an ITO when the ITO affiant relied oninformation obtained from an informant. The reliability of the information must be apparent and is to be assessed in light of the totality ofthe circumstances. The relevant principles are set out at paras 81-86: (

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;

(

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. [86] The requirement set out in step (ii) above strengthens the reliability of the informant information in this ITO which wouldotherwise be relatively weak evidence. The lack of contemporaneity between the date of the warrant application and the discussions withsome of the informers is significant. Assessed individually, the evidence of the informants is not very probative.

However, I am requiredto assess reliability of the informant information in the “totality of the circumstances.” This means that I must acknowledge the links andcommonalities between the evidence of many of the informers. The details that Mr.

Richards was a high-up figure in the Camrose andsurrounding area drug trade, that he trafficked drugs inter-provincially, that he used various cell phone numbers, that he employedrunners, that he used aliases and that he tended to move around often were all independently corroborated by Informants C, K and I. [87] It is true that the information provided by some of the informants, as relayed in the ITO, is not heavy in detail. These frailtiesundoubtedly affect the weight that can be placed on the individual pieces of information. But none of these frailties necessarily result inthe information having no value.

The law does not mandate an approach to the assessment of reasonable grounds where each individualpiece of evidence is weighed in a vacuum: see R v Wynter, 2016 ONSC 143 at para 38; R v Caissey, 2007 ABCA 380 at paras 12 and24. [88] While several portions of the ITO were vetted or redacted, I do not find those portions affect the overall reliability of the ITO.Considered as a whole, there is a strong link of continuity that connects the informant evidence. Further, Det.

Mohan included in the ITOdetails that, in some cases, the same informant information had led to successful arrests and convictions of other persons in the drugtrade. These facts add to the credibility and reliability of informant details which may otherwise appear insignificant. [89] I find the details in the ITO regarding the surveillance by police of Mr. Richards’ activities and accomplices to be probativeand reliable information. Det. Mohan was thorough in his review and provided the names and ranks of twelve individual officers whowere involved in the various surveillance efforts.

The details provided are anything but vague, and add to the overall strength of the ITOevidence by setting a strong historic context for the events which took place on February 7, 2013. [90] Finally, I find that Det. Mohan’s review of the events of February 7, 2013, is reliable and credible evidence. It was veryrecent; he compiled it on the same day that the application for the warrant was made. The details are well set out and reliable, as Det.Mohan was himself involved in some aspects of the day’s activities. When he was not personally present, Det.

Mohan was able toprovide details of the officers who were involved. [91] I am satisfied that there was a sufficient nexus between the events of February 7, 2013, as relayed in the ITO, and theevidence the police expected to discover to support the necessary standard of reasonable and probable grounds for the search. [92] This analysis is focused on reviewing the ITO as a whole. I must reject any suggestion to part and parcel the informantevidence from the surveillance evidence, and so on.

The approach described in Debot and Garofoli does not suggest that an unsourcedtip, or a tip from an untested informant invariably has no value. The value of a tip can only be evaluated upon an examination of all of thecircumstances.

The current state of the law in this regard was succinctly stated by Dambrot J in R v Riley, (ON SC),[2009] OJ No 738 at para 126: The totality of the circumstances approach endorsed by the Supreme Court generally, and in relation to informant information inparticular, does not require me, as the reviewing judge, to examine each piece of information provided by each of the informantsindividually and consider whether each is sufficiently sourced, detailed or otherwise shown to be reliable to be taken into account inassessing the existence of reasonable and probable grounds.

Fulfilling such a task in the circumstances of this application would beendless, and I will not pretend to have done it. [93] The information provided in the ITO is, on its face, more than sufficient to meet the requisite reasonable and probablegrounds for validity.

Sub-facial Validity [94] A sub-facial challenge permits the reviewing judge to look at the factors behind the ITO to assess the validity of its contents.The evidence heard on voir dire must be considered in determining whether to amplify the ITO with material that was missing or exciseincorrect or misleading evidence that was initially included by the affiant. [95] Excision is a remedy at the discretion of the reviewing judge to remove erroneous or illegally obtained evidence that wasincluded in the ITO and which justified the issuance of the warrant by the Justice of the Peace.

Amplification is the opposite; it is theconsideration of additional evidence presented at the voir dire to correct minor errors in the ITO: Morelli para 41. Amplification requiresa delicate balance, because if taken too far it risks circumventing the Charter requirement of prior authorization for a warrant: Araujopara 59.

Amplification must only correct good faith errors of the police in preparing the ITO, rather than deliberate attempts to misleadthe authorizing Justice. [96] The test for assessing validity of a warrant on a sub-facial challenge was set out by Sopinka J in Garfoli: If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that theauthorizing judge could have granted the authorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is todetermine whether there continues to be any basis for the decision of the authorizing judge. [97] The defence submits Det. Mohan knew or ought to have known that the report by Cst. McDonald of the Camrose PoliceService was not a reliable source. Defence further points out that the duty of frank and full disclosure means that the unreliable nature of

this information ought to have been included in the ITO so it could have been considered by the reviewing Justice of the Peace. Defencealso argues that evidence of trafficking from the search of the GMC Jimmy does not amount to grounds to search a residence; thatwithout more on amplification review, an issuing Justice could not conclude that drugs were being stored at a residence. [98] The Crown states that the standard of diligence on the part of the affiant of an ITO is not so high as to have required Det.Mohan turn his attention to the allegations against Cst. McDonald.

It further submits that the nexus is strong between surveillance of Mr.Richards leaving the dwelling house and driving to the Red Deer meeting with the GMC Jimmy, and the subsequent seizure of drugsfrom the GMC Jimmy. [99] I cannot agree with defence counsel that Det. Mohan was required to turn his mind to the background of each police officerwhose reports were cited in the ITO. I am not convinced that, had the issuing Justice been aware that Cst. McDonald was at the time ofissuance under some sort of review, he would have on that basis alone refused to issue the warrant.

Only one informant, “Informant J,”was reported by Cst. McDonald. The remaining 12 informants were either spoken to by Det. Mohan directly, or were in contact withofficers other than Cst. McDonald. [100] Perhaps, if all of the reports of informant communication relied on by Det. Mohan were authored by Cst. McDonald, the issuewould loom larger before the issuing Justice and before me on review. That is not, however, the case before me.

The standard remainswhether there were reasonable and probable grounds; the outcome of one police officer’s subsequent employment history with the policeforce is not necessarily determinative. [101] While the record before me was slightly amplified by Det. Mohan’s evidence on cross-examination that he was aware of somedisciplinary action with regard to Cst. McDonald, I accept that he did not turn his mind to it when authoring the ITO.

I do not find thisevidence to affect the overall reliability of the evidence in the ITO. [102] Finally, I do not find the inclusion of the evidence retrieved from the GMC Jimmy to be problematic. Read in context of Det.Mohan’s account of the events of February 7, 2013, it follows that a description of what was seized from the GMC Jimmy would beincluded in the ITO. I do not find it necessary to amplify this information with any further evidence upon review. Conclusion [103] Overall, I am satisfied that the ITO provided the issuing Justice of the Peace with reliable and credible evidence.

There weresufficient reasonable and probable grounds to lawfully issue a warrant. The search of Mr. Richards’ home was therefore reasonable andthere was no breach of his

section 8 rights under the Charter.

Section 10(b) - Right to Counsel [104]

Section 10(

b) of the Charter states: 10. Everyone has the right on arrest or detention… (

b) to retain and instruct counsel without delay and to be informed of that right; [105] The defence contends that Mr. Richards'

section 10(

b) right was violated when the police did not allow him to contact hislawyer subsequent to his arrest. [106] The Crown conceded that Mr. Richards'

section 10(

b) right was breached while he was in police custody at Westwinds onFebruary 7, 2013, under the supervision of Cst. Kelly. However, there is disagreement between Crown and defence as to the length ofthe delay; defence argued that the delay began upon arrest at 3:31 p.m., while the Crown argued it began after the “very public” arrest ofMr. Fader at 5:45 p.m. This is a difference of about two hours and 15 minutes. The Crown maintains that the delay between 3:31 p.m.and 5:45 p.m. was justified on the basis of the “exceptional circumstance” of needing to maintain continuity of the Pantego Wayresidence of Mr. Richards by ensuring no one was allowed to enter or leave the residence. [107]

Section 10(

b) of the Charter gives every person the right to retain and instruct counsel without delay, and to be informed of thisright upon arrest. In R v Bartle, (SCC), [1994] 3 SCR 173, Lamer CJ explained why the right to counsel must befacilitated without delay at para 17: The purpose of the right to counsel guaranteed by s. 10(

b) of the Charter is to provide detainees with an opportunity to be informed oftheir rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil thoseobligations: R. v Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because,when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has thisperson suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself.

Accordingly, a person who is"detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206, R v Hebert, (SCC), [1990] 2S.C.R. 151, at pp. 176-77, and Prosper. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" andupon request. As this court suggested in R v Clarkson, (SCC), [1986] 1 S.C.R. 383, at p. 394, the right to counselprotected by s. 10(

b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [108] The corresponding duties on police to facilitate

section 10(

b) were originally set out in R v Manninen, (SCC),[1987] 1 SCR 1233 at para 21. The police must advise the arrestee of his or her 10(

b) right. This is the informational component of theduty on police. The police must also provide the individual with a reasonable opportunity to exercise the right. This requires the police tofacilitate contact with counsel by providing the accused with a telephone and reasonable privacy. This is the implementation aspect of theduty. The police are also under a duty to cease or avoid any questioning the arrestee and must not elicit evidence from the individual

until he or she has had a reasonable opportunity to retain and instruct counsel. [109] Where access to counsel is not immediately provided, the burden is on the Crown to justify the delay: R v Taylor, 2014 SCC 50at para 24. Lamer J, as he then was, acknowledged at para 22 of Manninen that there may be instances when “urgent” circumstancesinterrupt the facilitation of the right to counsel. In R v Suberu, 2009 SCC 33, the Court recognized that safety concerns must be takeninto account in assessing a delay in access to counsel.

The Court stated at para 2: “The immediacy of this obligation is only subject toconcerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.” Length of Delay [110] It is accepted that the suspension of the right to counsel may be justified in some special circumstances: if the security of thepolice or the public is threatened, if there is an imminent risk that evidence would be destroyed or lost or that another ongoing policeoperation could be jeopardized: R v Archambault, 2012 QCCA 20 at para 26. [111] Police justifications must be closely assessed on a case-by-case basis.

In R v Heng, 2014 ABCA 325, the Court of Appealemphasized at para 11 the importance of determining whether a delay is in fact justified, or whether it is police practice to withholdcounsel: The trial judge made no finding on whether denying the appellant access to counsel pending execution of the search warrant was ageneral policy or a one-off decision (and, if the latter, whether it was justified in this case by exceptional circumstances)…It might wellbe a significant factor in assessing the bona fides of police conduct: R v Saeed, 2014 ABCA 238 at para 68, [2014] AJ No 739 (QL); R vPatterson, 2006 BCCA 24 at paras 40-42, 206 CCC (3d) 70 [Patterson].

More particularly, it bears on whether the breach in this casereflected a willful or reckless (and as such grave) disregard of Charter rights, and on whether it implicates systemic or institutionalproblems: R v Harrison, 2009 SCC 34 at para 25, [2009] 2 SCR 494; R v Harrison, 2008 ONCA 85 at para 60, 89OR (3d) 161. [112] General concerns or vague reasons provided by police for withholding the right to counsel will not be acceptable justification.At para 29 of Archambault, the Quebec Court of Appeal upheld the trial judge’s finding that the accused’s

section 10(

b) right wasbreached. The police in that case attempted to justify the delay because they feared that such contact would put the ongoing policeinvestigation at risk. The police believed that the preservation of certain evidence would be threatened if the respondents were able tocontact their lawyer. These reasons, while having the benefit of being candid, had no basis; see para 37. There was no specific evidenceto support the fear that officer safety was at risk or that evidence may be destroyed; rather the police attempted to justify the delay byreferring to past experience when such events did occur.

The Court of Appeal affirmed the following paragraph from the trial decision,2010 QCCQ 4710: [24] The authorities do not support the existence of a discretionary power in the police to suspend the right to counsel of a person whomthey have arrested for tactical considerations related to the advancement of an investigation by other means. Unless there are exigentcircumstances of urgent and pressing necessity, the police are obliged to comply with

section 10(

b) according to its terms as interpretedby the jurisprudence. Quite apart from the authorities, however, I cannot readily imagine a point of principle that would justify theexistence of an ancillary power to suspend the right to counsel for tactical reasons. That right exists to ensure the availability of promptassistance to those whom the state has put in jeopardy. A power to suspend the right to counsel would imply the ability of the state to putsomeone in jeopardy by arrest or detention and, at the same time, the power to deny the right to legal assistance of those in conspicuousneed. [113] Cst.

Kelly is a police officer with CPS. At the time of the voir dire, she had been a police officer for 11 years. Currently, sheworks as a uniformed patrol officer. On February 7, 2013 she was a member of the gang enforcement team and was involved in thesurveillance operations and custody of the accused following his arrest. [114] Cst. Kelly’s involvement commenced at approximately 11:30 a.m., shortly after the surveillance was set up. She was taskedwith the role of scribe, which meant that she made notes of observations that were aired by team members and specific times in relationto their observations. [115] Cst.

Kelly formed part of the surveillance team that went to Red Deer to the Costco parking lot. Her final scribe entry was at3:32 p.m., which was the traffic stop and arrest of Mr. Richards. At that time she left the surveillance team and attended at theWestwinds Police Campus to take over custody of Mr. Richards. [116] Mr. Richards was brought into the holding area at Westwinds at approximately 4:16 p.m. At that time she read Mr. Richards hisCharter rights and advised that he was under arrest for possession for the purposes of trafficking in a controlled substance and forpossession of the proceeds of crime.

She stated during direct examination: When I asked if he understood, he stated, Yes. And when I asked if he wanted to contact a lawyer, he said, Ah yeah. I read the cautionfollowing that, and he did not make any – stated he didn’t want to say anything. And I advised him that he would be able to contactcounsel pending the entry of the search warrant. [117] During her voir dire testimony, the Crown asked Cst. Kelly about the extent of her knowledge of the status of the investigationat the time she decided to delay Mr. Richards’ right to counsel.

She reiterated the surveillance timeline from earlier that day, and stated: Based on...information based on the fact that I knew that this was a drug investigation, that a search warrant was being sought, that therewas unknown occupants in that residence, I delayed Mr. Richards contact to counsel on the basis that I was concerned that he couldmake a call to someone other than counsel and, therefore, there would be a risk of destruction of evidence. [118] She then stated:

In almost all of the warrants that I have participated in, the Tactical Unit has been .. for the drug warrants, sorry, that I’ve participated in,the Tactical Unit has been utilized. I didn’t know exactly what the tactic they would be using to go in, but I was concerned that ifsomebody was in the residence, that they may be able to prepare for their entry, and I didn’t know if their safety could be affected withsomebody knowing that they were going inside. [119] Shortly before 9:00 pm she became aware that a very public arrest had been made of the fourth person and she felt that the riskof Mr.

Richards making a call to anybody to either prepare a safety risk or destroy evidence was not greater than the risk that was nowposed because of a very public arrest outside of the house. At 9:01 p.m. Mr. Richards was given the opportunity to contact counsel. [120] During this period of time, Cst. Kelly asked him no questions other than if he had any medical concerns. A sandwich and waterwas offered to him. [121] Although I find Cst. Kelly to be a credible witness, other than these generalities, there were no details provided as to why Cst.Kelly had concerns over officer safety or destruction of evidence.

As in Archambault, this explanation is insufficient to justify denial ofan accused person’s rights under the Charter. Without specific concerns based on actual events surrounding an investigation, the delaycannot be justified. [122] Cst. Kelly admitted during cross-examination that she was not provided with any information that would indicate that Mr.Richards was a dangerous individual and should not be provided with access to counsel on arrest.

She was not advised of the very publicarrest of an individual at approximately 5:45 p.m. [123] There is some variation in the case law on whether delay in facilitation of an accused’s 10(

b) right is justified in “reasonablecircumstances” or “exceptional circumstances.” Crown and defence disagree as to which of these standards ought to apply in the presentcase. The Crown cites Taylor, where the standard discussed is whether the delay was reasonable in the circumstances: para 24. In thesame year as Taylor, however, the Supreme Court applied the exceptional circumstance standard to determine whether the delay tocounsel was justified in R v Mian, 2014 SCC 5 at para 74. I am inclined to endorse the latter standard, as it is more consistently appliedin case law and was applied in early 10(

b) jurisprudence, including Manninen and Strachan. [124] I do not find it necessary, however, to dissect the distinction between reasonable and extraordinary or exceptional circumstanceshere. Even if the lower standard of reasonable circumstances applies, I do not find Cst. Kelly’s justification for the delay to bereasonable. I certainly do not find the circumstances to have been exceptional. While Cst. Kelly testified that she had concerns for officersafety due to the nature of the investigation, these were general concerns that she was not able to connect to the actual events takingplace throughout the delay.

She admitted that she made no notes as to the ongoing surveillance or actions of the tactical team, despitebeing required by law “to prepare accurate, detailed, and comprehensive notes as soon as practicable;” see Wood v Schaeffer, 2013 SCC71 at para 67. It is not reasonable to delay the right of an arrested person to contact counsel on the basis of an ongoing investigation andthen fail to follow up with a record of the investigation. [125] The Crown argued that the delay started at 5:45 p.m. when Mr.

Fader was arrested, as the delay was justified up to that point onthe basis of officer safety and the risk that evidence may have been destroyed. Cst. Kelly testified, however, that she was not aware ofthis arrest at the time, and only noted Mr. Fader’s arrival at Westwinds at 6:55 p.m. She stated “I don’t recall knowing the specifics ofhis arrest until -- and of the fact that anything public had taken place until I was contacted closer to 9 p.m.” [126] It is inconsistent to argue that the breach started at 5:45 p.m. when the person responsible for the ongoing delay, Cst.

Kelly, wasnot aware of the arrest until hours later. [127] I do note, however, that based on the evidence before me, there was no evidence that Cst. Kelly’s decision to delay the right tocounsel was as a result of a standard practice within her team to withhold access to counsel. This has been found in other cases involvingthe CPS including R v Lim and R v Celestin, 2013 ABPC 242, However, I decline to make that finding in this case as there is noevidence to support the fact that it was a standard. [128] The defence contends that the breach started immediately upon arrest at 3:31 p.m.

Submissions regarding the use of cell phonesto contact counsel were made by the defence. There is case law to suggest that police must provide a cell phone to an arrested person incertain circumstances to facilitate the right to counsel. Here, Mr. Richards was arrested at 3:31 p.m. and did not arrive at Westwinds until4:19 p.m. Cst. Kelly assumed custody of Mr. Richards at 4:20 p.m. [129] I do not accept that the officers who transported Mr. Richards from the site of the arrest to Westwinds were obliged under theCharter to allow Mr. Richards to use a cell phone to contact counsel.

Though defence counsel referenced trial decisions from variousjurisdictions where the right to use a cell phone was granted, namely R v Edwards, 2009 NLTD 167 and R v Camacho, 2011 BCSC 175,the Supreme Court was clear in Taylor that police are not obliged to provide their own cell phone to an accused to contact counsel.

Inoverturning the Court of Appeal’s ruling that a cell phone ought to have been provided to the accused by police, the Supreme Court heldat para 27 of Taylor that “in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to adetained individual.” [130] Whether an accused may use his or her own cell phone to contact counsel is less settled. In this case, I am not convinced thatthe requisite privacy element of 10(

b) would have been satisfied if Mr. Richards called counsel while he was in transit from the scene ofthe arrest to Westwinds. In consulting counsel, detained or arrested persons must be allowed to converse with a lawyer without theconversation being overheard.

The legal rationale for the privacy requirement is straightforward, and was explained by the Ontario Courtof Appeal in R v Playford, (ON CA), [1987] OJ No 1107, 40 CCC (3d) 142 at para 40: It would defy common sense to expect an accused person to instruct counsel properly when his instructions can be overheard by otherpersons and in particular by police officers. Such lack of privacy might even seriously prejudice his ability to retain counsel.

Retention ofcounsel usually requires some explanation by the accused of the circumstances which have led to his arrest. ...While contacting counseldoes not require “absolute privacy,” calling a lawyer from a police vehicle could undermine the privacy accorded to the accused whenconsulting counsel.

[131] Aside from the privacy consideration, courts have also found it reasonable to prohibit the use of cell phones by an accusedfollowing arrest. In R v Montgomery, 2009 BCCA 4, the British Columbia Court of Appeal upheld the trial judge’s conclusion that itwas neither reasonable nor practical to allow the appellant to use a cell phone at the scene of his arrest.

The Court stated at para 35: “Itwould have been difficult for the police to ensure that the call was not used for an improper purpose and to provide the appellant withprivacy at the scene of his arrest while ensuring that he was secure.” I agree with this assessment. [132] I find that the breach began at 4:20 p.m., the time that Mr. Richards arrived at Westwinds, had been searched and was in OfficerKelly’s custody. The length of the delay is the time that elapsed between 4:20 p.m. and 9:01 p.m., totalling four hours and 41 minutes. [133] Mr. Richards’ right to counsel was violated by the delay.

I now turn to whether the impugned evidence should be excludedpursuant to section 24(2) of the Charter. Section 24(2) [134] Section 24(2) of the Charter states that where evidence was obtained in a manner that infringes Charter rights, that evidenceshall be excluded if it is established that, having regard to all of the circumstances, the admission of the evidence in the proceedingswould bring the administration of justice into disrepute. [135] The analysis of whether the evidence ought to be excluded is two pronged; first, I must determine whether the evidence wasobtained in a manner that infringed Mr.

Richards’ Charter rights. If that query is answered in the affirmative, I must go on to balance thefactors under section 24(2) enumerated by the Supreme Court in R v Grant, 2009 SCC 32. A balance of the Grant factors is used todetermine whether the admission of the impugned evidence would bring the administration of justice into disrepute. [136] The defence seeks to exclude the evidence located during the search of Mr. Richards' home, including his identificationdocuments, controlled substances and drug paraphernalia. A. Was the evidence obtained in a manner that infringed Mr.

Richards’ Charter rights? [137] Evidence can be excluded pursuant to section 24(2) only where it has been obtained in a manner that breached the accused’sCharter rights. Here, the 10(

b) breach in question occurred for the time period between 4:20 p.m. and 9:01 p.m. on February 7, 2013.The search of Mr. Richards’ home that led to the discovery of the impugned evidence occurred commencing at 11:55 p.m. [138] The connection between the breach and the collection of evidence can be causal, temporal, contextual or a combination of thethree: R v Wittwer, 2008 SCC 33 at para 21, R v Plaha, (ON CA), [2004] OJ No 3484 (Ont CA) at para 45. Aconnection that is merely “remote” or “tenuous” will not suffice: R v Goldhart, (SCC), [1996] 2 SCR 463 (SCC) atpara 40; Plaha, at para 45.

Although a non-remote causal connection between the breach and the discovery of the evidence will satisfythis requirement, a causal connection is not strictly required. Instead, a broad, generous approach is to be taken when courts assesswhether the breach and the discovery are part of the same course of conduct by the state. Temporal, contextual and any other relevantfactors ought to be considered in this assessment.

This is a case-specific inquiry, explained by the Supreme Court in Wittwer at para 21: In considering whether [evidence] is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. Itis unnecessary to establish a strict causal relationship between the breach and the subsequent statement.

The statement will be tainted ifthe breach and the impugned statement can be said to be part of the same transaction or course of conduct. [139] In R v Strachan, (SCC), [1988] 2 SCR 980, the police executed a valid search warrant but did not allow theaccused to contact counsel until after the search had taken place and the evidence in question was obtained. The Supreme Cour

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