R v Hoelscher, 2016 ABQB 263

Court of Queen ’ s Bench of Alberta Citation: R v Hoelscher, 2016 ABQB 263 Date: 20160512 Docket: 130486905Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Jordan Michael Hoelscher Applicant Restriction on Publication This judgment may not be published, broadcast, or transmitted in any manner before the jury, at this time not yet selected, retir es to consider its verdict. NOTE: This judgment is available from the court file, and it may be published after the jury retires to consider its verdict. See Order of May 12, 2016.

Editorial Notice: The restriction on publication ended September 16, 2016. _______________________________________________________ Reasons for Judgment on the Voir Dire of the Honourable Mr. Justice E.J. Simpson _______________________________________________________

Table of Contents I. Introduction . 4 II. Facts . 4 III. The November 9, 2012 Production Order 5 Background . 5 Crown’s Position re Production Order 6 Defence’s Position re Production Order 6 Issues re Production Order 6 Decisions re Production Order 6 Law re Production Order 6 Analysis re Production Order 8 Conclusion re Production Order 9 IV. The Arrest of Jordan Hoelscher 9 Background . 9 Analysis re Arrest 9 V. Search of Jordan Hoelscher Incident to Arrest 10 Background . 10 Analysis re Search Incident to Arrest 10 VI.

Reasonable and Probable Grounds to Search 32 Adamson Avenue . 10 Background . 10 Position of the Parties . 11 Issue re Reasonable and Probable Grounds to Search 32 Adamson Avenue . 11 Decision re Reasonable and Probable Grounds to Search 32 Adamson Avenue . 11 Law re Reasonable and Probable Grounds to Search 32 Adamson Avenue . 12 Analysis re Reasonable and Probable Grounds to Search 32 Adamson Avenue . 12 1.

The ITO did have sufficient information to support a reasonable probability that the offences of conspiracy to traffic cocaine and/or the offence of committing an offence for a criminal organization had been committed. 12 2. The December ITO contained reliable evidence supporting a reasonable belief that at least one of the listed items existed and would be found in 32 Adamson Avenue on December 19, 2012. 13 Money . 13 Cellular Telephones . 14 Cellular Telephone Records . 14 Residency Documents . 14 3.

The December ITO after amplification and excision supported a reasonable belief that the cellular telephones, cellular telephone records and residency documents would afford evidence of Jordan Hoelscher’s participation in a conspiracy to traffic cocaine and commit an offence for a criminal organization. 15

Summary re Reasonable and Probable Grounds to Search 32 Adamson Avenue . 15 VII. Reasonableness of Entry at 32 Adamson Avenue . 16 Background . 16

Issue re Reasonableness of Entry . 16 Decision re Reasonableness of Entry . 16 Law re Reasonableness of Entry . 17 Analysis re Reasonableness of Entry . 17

Summary re Reasonableness of Entry . 17 VIII. Reasonableness of Seizure and Search of the Lincoln Navigator 18 Background . 18 Analysis re Reasonableness of Search and Seizure of Lincoln Navigator 18 IX. Delay in Implementational Rights Regarding Retaining and Instructing Counsel 18 Background . 18 Issue re

Section 10 Charter Rights . 21 Decision re

Section 10 Charter Rights . 21 Law re

Section 10 Charter Rights . 21 Analysis re

Section 10 Charter Rights . 22

Summary re

Section 10 Charter Rights . 24 X. Abuse of Process . 24 Background . 24 Issue re Abuse of Process . 24 Decision re Abuse of Process . 24 Law re Abuse of Process . 24 Analysis re Abuse of Process . 25

Summary re Abuse of Process . 26 XI. Lost Evidence . 26 Background . 26 Issue re Lost Evidence . 27 Decision re Lost Evidence . 27 Law re Lost Evidence . 27 Analysis re Lost Evidence . 27

Summary re Lost Evidence . 29 XII. Section 24(2) 29 I. Introduction [ 1 ] The Applicant, Jordan Michael Hoelscher, brings an application for remedies under the Canadian Charter of Rights and Freedoms (the Charter ) in relation to charges he faces on a five-count indictment regarding trafficking cocaine, conspiracy to traffic cocaine and participating in a criminal organization. [ 2 ] The evidence portion of a pre-trial voir dire to deal with his application commenced in September of 2015. Two judgments have issued, one with respect to disclosure of information and another regarding the amplification of three information(

s) to obtain (“ITO”). [ 3 ] January 22, 2016, a third judgment, a written one, R v Hoelscher , 2016 ABQB 44 , dealt with a production order granted to the Red Deer RCMP October 12, 2012 to obtain the content of text messages and dialing details of the text messages. (Throughout these

Reasons I refer to the January 22, 2016 judgment using its citation, 2016 ABQB 44) II. Facts [ 4 ] The following facts from 2016 ABQB 44 are relevant to this decision (at paras 6-12): [6] During an investigation of Mr. Hoelscher, the Red Deer RCMP obtained production orders for text messages on October 12, 2012 and November 9, 2012 based on two ITO sworn on October 12, 2012 and November 9, 2012.

All were sworn by Constable Joshua Matthies. [7] The October production order required Telus to produce text messages and other details with respect to cellular telephone numbers 587 679-0221 and 403 896-3778 for the period from April 1, 2012 to October 22, 2012. [8] The November production order required Rogers Communications (Rogers) to produce text messages and other details regarding cellular telephone number 403 848-0995 for the period from May 1, 2012 to November 8, 2012. [9] Both Telus and Rogers complied and copies of their data became exhibits in this hearing.

Telus supplied the written content of the text messages as the company retained the content for billing purposes for 150 days. Rogers did not retain the written content and therefore provided only the other details ordered to be produced such numbers as dates, rates, times and subscriber information. [10] The text messages obtained from the execution of the production orders became part of an ITO sworn on December 19, 2012.

On the strength of the December ITO, the RCMP obtained a Search Warrant to search three residences in Red Deer. [11] Copies of the production orders and search warrant became Exhibits VD2-16 and VD2-17 respectively. [12] Counsel for Mr. Hoelscher examined Cst. Matthies on certain paragraphs as agreed by the Crown and Defence. I issued a ruling on October 26, 2012 with respect to the amplification of the ITO. The ITO as amended became Exhibits VD2-18, 19 and 20. [ 5 ] The January 22, 2016 judgment ( 2016 ABQB 44 ) dealt only with the October 12, 2012 production order.

It held that the police had sufficient grounds to obtain the October production order but ought to have obtained a Criminal Code

Part VI warrant to acquire the content of the text messages and the related information. In the result this Court set aside the production order. [ 6 ] As the decision impacted some of the rulings to follow on the remaining Charter motions, counsel were permitted a further opportunity to provide written submissions on those outstanding motions. Counsel have completed their submissions, and the following deals with remaining issues excepting only consideration of the application of s 24(2) of the Charter . III.

The November 9, 2012 Production Order Background [ 7 ] The ruling in 2016 ABQB 44 , setting aside the October 12, 2012 production order, applies for the same reasons to the November 9, 2012 production order. It too must be set aside as the RCMP required a

Part VI warrant rather than a production order. [ 8 ] The Crown concedes the seizures of the historical text messages and related number information are warrantless and therefore prima facie unreasonable as the seizures cannot be justified under the common law. The Crown also concedes therefore the judgment makes the seizure of the text messages unreasonable and a breach of the Applicant’s

Section 8 Charter rights. [ 9 ] The Crown does not concede the insufficiency of grounds regarding the seizure of the text messages by way of the production order of November 9, 2012. Crown’s Position re Production Order [ 10 ] The Crown takes the position that although the RCMP obtained a production order rather than a

Part VI warrant, the police had sufficient reasonable grounds for the granting of the production order. Defence’s Position re Production Order [ 11 ] The defence argues that as the seizure required a

Part VI warrant addressing reasonable grounds need only be done for the purpose of any possible impact on arguments under s 24(2) of the Charter . Moreover, even if sufficient grounds existed, the November 9, 2012 production order extended far beyond the time period for which grounds existed. Issues re Production Order [ 12 ] Two issues pertain: 1. Did the November 9, 2012 ITO (Exhibit VD2-19, the “November ITO”) contain sufficient grounds to support the granting of the November 9, 2012 production order?

2. Did the production order cover a time period beyond which the reasonable grounds existed? Decisions re Production Order [13] The answers to these issues are: 1. The November ITO contained sufficient grounds for the granting of the November 9, 2012 production order. 2. The production order covered a reasonable time period for which sufficient grounds existed.

Law re Production Order [14] As this part of this judgment deals with reasonable grounds (as did 2016 ABQB 44), the law from that decision applies, asfound in paragraphs 26-36: [26] The Supreme Court in R v Collins, (SCC), [1987] 1 SCR 265, [1987] SCJ No 15 held that a search is reasonableif: 1) it is authorized by law; 2) the authorizing law is reasonable; and 3) the manner in which the search was conducted was reasonable. [27] A court reviewing the sufficiency of an authorization for a search must determine 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 at para 54, [2000] 2 SCR992. [28] The reviewing court does not determine if it would have issued the authorization, but whether there was credible and reliableevidence to permit the authorizing Justice of the Peace or Judge to find reasonable and probable grounds to believe that an offence hadbeen committed and that evidence of the offence would be found at the specified time and place: R v Morelli, 2010 SCC 8 at para 40,[2010] 1 SCR 253. [29] The reviewing court undertakes its review of the ITO after excluding erroneous information and adding any amplificationevidence: Morelli at para 41. [30] The requirements for granting of a production order under the Criminal Code at the time of the issuing of the two productionorders in this case were found in s. 487.012(3) and (4): 487.012(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing informationon oath in writing, that there are reasonable grounds to believe that (

a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; (

b) the documents or data will afford evidence respecting the commission of the offence; and (

c) the person who is subject to the order has possession or control of the documents or data. 4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including termsand conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyeror a notary and their client. [31] The Court is bound by R v Fedossenko, 2014 ABCA 314, [2014] AJ No 1046, leave denied [2014] SCCA No 516.

Section487.012(3) does not require the police to have reasonable and probable grounds to believe an offence was in fact committed. However,the majority of the Court of Appeal in that decision did not expressly decide the constitutionality of that provision. For the purposes ofthis application, counsel agree the test with respect to ss. 3(

a) is reasonable grounds to believe rather than a reasonable suspicion. [32] The evidentiary standard of reasonable grounds to believe requires something more than mere suspicion but less that the civilstandard of proof on the balance of probabilities: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para114, [2005] 2 SCR 100.

It is a standard of “reasonable probability” or “reasonable belief” rather than “proof beyond a reasonable doubt”or “prima facie case”: R v Debot, (SCC), [1989] 2 SCR 1140 at 1165, [1989] SCJ No 118. [33] The Court must address three issues outlined in Debot at 1165 in weighing whether information received from a confidentialinformer supports reasonable grounds: 1. Was the information with respect to the commission of a criminal offence compelling? 2. Was the source credible? 3.

Was the information corroborated by the police? [34] The Court must consider whether the informant's tip contained sufficient detail to ensure it was based on more than mere rumouror gossip.

[35] Corroborating information does not necessarily have to relate to the alleged crime itself in order to substantiate the reliability of the informant's information: R v Caissey , 2007 ABCA 380 at para 25 , [2007] AJ No 1342, aff'd 2008 SCC 65 , [2008] 3 SCR 451. [36] The Court must consider the totality of the circumstances. The three Debot factors do not form three separate tests; weakness in one may be compensated by strength in the others.

Analysis re Production Order [ 15 ] The November ITO supporting the granting of the November 9, 2012 production order contains the same information as the October ITO (Exhibit VD2-18, the “October ITO”). Additional information in the November ITO came from Informer “A.” Informer “A” was found credible in the previous decision, 2016 ABQB 44 .

In addition, the information was found compelling and corroborated by other information. [ 16 ] On the whole of the information in the October ITO, the information supported a reasonable probability with respect to the offences alleged and the allegation that the data sought would afford evidence regarding the commission of those offences, such that the authorizing judge could have issued a production order for the information contained in cellular phone records for the two phone numbers for which the order was sought. [ 17 ] The November ITO references the same offences, possession of cocaine for trafficking and possession of property, money, obtained by crime.

In addition to the information with respect to those two phone numbers it adds information in paragraphs 30 to 32 from Informer “A” with respect to another phone number. [ 18 ] Informer “A” advised that Jordan Hoelscher changed his cell phone number to 403 848-0996. Upon carrying out a subscriber information check, the police found that a previous telephone number, 587 679-0221, dealt with in the October ITO was no longer in service. A further subscriber check found the new number, 403 848-0996, to be subscribed to by Ashley Johnston at an address in Rockyford, Alberta.

The police also determined that Jordan Hoelscher had family connections in Rockyford, Alberta. [ 19 ] The investigator’s comments contained in the ITO relates that as a police officer-drug investigator he is aware drug traffickers often change cell phone numbers in an effort to make it difficult for law enforcement officers to monitor the phone numbers used by a drug trafficker to conduct transactions. Furthermore, the officer was able to determine from his experience that drug traffickers register phones in names which do not exist.

The officer swearing the information knew Jordan Hoelscher had family in Rockyford, Alberta and concluded Mr. Hoelscher had registered a new phone number, 403 848-0996 under a fictitious name and address out of Rockyford, Alberta. [ 20 ] I agree with the Crown’s argument that this information from Informer “A” should be considered credible and reliable in light of my findings of the credibility of Informer “A” regarding the October ITO.

The new information that Jordan Hoelscher’s previous telephone number, 587 679-0221, was no longer in service corroborated the information of Informer “A.” [ 21 ] Accordingly, I find sufficient grounds to support a reasonable belief that Jordan Hoelscher was using telephone number 403 848-0996 in relation to the offences and evidence from that telephone number would afford evidence with respect to those offences. [ 22 ] Regarding the argument of the defence that the time period overreaches a reasonable time period, I do not accept that argument. The original information with respect to Mr.

Hoelscher started in April of 2012. The initial ITO requested information dating back to May 1, 2012. Although the new number came from Informer “A” in September or October as a number used by Jordan Hoelscher, that does not mean Jordan Hoelscher did not keep multiple telephone numbers and switch back and forth between the numbers in an effort to avoid detection by law enforcement personnel.

To require the police to provide information as to particular time periods a telephone might have been used during investigation would provide an insurmountable hurdle for the police to parse out various time periods when the suspect was alleged to have used the telephone and then not used it as he switched between telephones. Accordingly, the request for information dating back to May 1, 2012 to mirror the request in the October ITO based on the information that trafficking activities of Jordan Hoelscher went back to April of 2012 does not set out an unreasonable time period to request information.

Conclusion re Production Order [ 23 ] Although the previous judgment, 2016 ABQB 44 , effectively rendered the seizure pursuant to the November 9, 2012 production order warrantless and thus unreasonable, there were reasonable grounds for the granting of the production order for a reasonable period of time. IV. The Arrest of Jordan Hoelscher Background [ 24 ] Constable Smith of the Red Deer RCMP arrested Jordan Hoelscher at the Swollen Goat Tattoo Shop in Red Deer December 19, 2012.

He did so under the direction of Constable Matthies, who relied on information he obtained from the seizure of the text messages pursuant to the production orders and surveillance from a surveillance team. Analysis re Arrest [ 25 ] The Crown acknowledges that as Constable Matthies testified in the voir dire that he relied on the text messages seized

pursuant to the two production orders, these text messages must be excised from Constable Matthies’ grounds for arrest, pursuant to the decision in 2016 ABQB 44 . The evidence remaining for Constable Matthies to support his arrest of Jordan Hoelscher came from surveillance. The Crown acknowledges that the surveillance did not provide sufficient information so as to amount to reasonable grounds to believe Jordan Hoelscher was conspiring to traffic cocaine. [ 26 ] Accordingly, the Crown acknowledges a breach of the Applicant’s s 9 Charter rights. V.

Search of Jordan Hoelscher Incident to Arrest Background [ 27 ] Upon the arrest of Jordan Hoelscher by Constable Smith, Constable Smith conducted a cursory pat-down search of Jordan Hoelscher incidental to the arrest before placing him in the police vehicle. Officer Smith then transported Jordan Hoelscher to the RCMP police detachment. At the detachment his personal effects were seized, his photograph taken and his fingerprints may also have been taken. All of these searches and seizures were carried out incidental to his arrest.

Analysis re Search Incident to Arrest [ 28 ] The Crown acknowledges the arrest of Jordan Hoelscher was without reasonable grounds and any search incidental to arrest is only reasonable if it follows a lawful arrest. As the grounds for the arrest are insufficient and do not support a lawful arrest, the Crown acknowledges that the searches of the Applicant incidental to his arrest breached his s 8 Charter rights. VI.

Reasonable and Probable Grounds to Search 32 Adamson Avenue Background [ 29 ] On December 19, 2012 the Red Deer RCMP obtained a search warrant for 32 Adamson Avenue in Red Deer, Alberta, the residence of Jordan Hoelscher.

The police obtained the search warrant on the strength of an information to obtain (the “December ITO”) sworn by Constable Matthies on the same day. [ 30 ] The officer deposed that he believed the offences of conspiracy to traffic cocaine and committing an offence for criminal organization had been committed. [ 31 ] He also deposed that he believed the following items to be searched for would be found at 32 Adamson Avenue: 1. money; 2. money counters; 3. debt ledgers; 4. cellular telephones; 5. cellular telephone records including ownership information; 6. documentation relating to the occupant of the residence. [ 32 ] The December ITO contained information from text messages obtained as a result of the seizures by way of the October, 2012 production order, which 2016 ABQB 44 set aside. [ 33 ] Counsel for the Crown and defence agree information relating to these text messages must be excised from the December ITO before the Court determines whether reasonable grounds existed for the search warrant authorized to search 32 Adamson Avenue. [ 34 ] The Crown has taken no issue with the excision of paragraphs 42, 51, 61 and part of 66 as suggested by counsel for the Applicant.

Accordingly, the three paragraphs and a portion of paragraph 66 as follows will be excised and not be considered in support of reasonable grounds to issue the search warrant. 66. Based on my experience as a drug investigator I believe that drug trafficking is a cash only business. (Portion excised) I know that counting large sums of money can be made more efficient by employing the use of a money counter and that mid to high level drug traffickers will often use money counters to count money.

I have been involved in drug investigations in the past where a search of the drug traffickers residence has yielded the seizure of one or more money counters. I know that drug traffickers will keep track of money owed to them by other drug traffickers on score sheets or debt ledgers. I know that these debt ledgers will be kept by

drug traffickers so they know who still owes them money. I also know that in the drug trafficking business some drug traffickers willcarry long outstanding debts with other drug traffickers before the debts are eventually paid off. I have been involved in many druginvestigations where a search of a drug traffickers residence has enabled police to seized debt ledgers. I have also debriefed manyconfidential informants as to how a drug trafficker will conduct business and have been told by confidential informants that money owedby one drug trafficker to another will be kept track of on a debt ledger or score sheet.

I know that cellular telephones are use by drugtraffickers to communicate with prospective buyers regarding the location, time, amount, and price of drugs to be purchased. (Portion excised) In relation to the occupant documentation sought with this search warrant, I know that Jordan HOELSCHER, Croft MONROE-BOWES,and Jason STEMAN are the occupants of the dwelling houses mentioned in this application however I do not know if they are the soleoccupants of the dwelling houses or the persons in possession of the money and other items to be searched for at the dwelling houses.

Assuch I am searching for the documentation relating to the occupants to prove who has possession of the money and other things to besearched for at the dwelling houses to aid my investigation. (Portion excised) Position of the Parties [35] Counsel on behalf of Mr. Hoelscher argues the December ITO, as excised, is without reasonable grounds to believe the itemsproviding evidence of the alleged offences would be found at 32 Adamson Avenue. Therefore, the search proceeded without lawfulauthority breaching Mr.

Hoelscher’s s 8 Charter rights. [36] The Crown disagrees, arguing that notwithstanding the excisions, the December ITO contains sufficient information to makeout reasonable grounds for the search. Issue re Reasonable and Probable Grounds to Search 32 Adamson Avenue [37] On the whole of the information contained in the December ITO, did it provide reasonable grounds to justify authorizing asearch warrant for 32 Adamson Avenue? Decision re Reasonable and Probable Grounds to Search 32 Adamson Avenue [38] The December ITO did provide reasonable grounds to authorize the search.

Law re Reasonable and Probable Grounds to Search 32 Adamson Avenue [39] The law set out above under the heading “Law re Production Order”, regarding reasonable search, review of an authorization,standard of reasonable and probable grounds and confidential informants also applies to the authorization of a warrant to search theresidence. [40] Counsel in their supplemental briefs provided summaries with respect to the requirements for information in the modifiedDecember ITO to support a reasonable belief.

From their materials and with reference to R v Adams, [2004] NJ No 105, (NFLD Prov Ct), I summarize the requirements as follows with respect to reasonable grounds: a. The offence of conspiracy to traffic cocaine and/or the offence of committing an offence for criminal organization have beencommitted; b. At least one of the listed items (money, money counter, debt ledger, cellular telephone, cellular telephone records or residentialdocuments) exist and would be found in the residence at 32 Adamson Avenue on December 19, 2012; c. The specified items would afford evidence of the offences.

Analysis re Reasonable and Probable Grounds to Search 32 Adamson Avenue [41] In order to determine whether there was reliable evidence that might reasonably be believed on the basis of which theauthorizing judge could have issued the search warrant for 32 Adamson Avenue, this Court must consider the totality of the evidenceavailable with respect to the search warrant granted December 19, 2012. The applicable standard is reasonable probability. [42] An analysis of each of the three requirements follows. 1.

The ITO did have sufficient information to support a reasonable probability that the offences ofconspiracy to traffic cocaine and/or the offence of committing an offence for a criminal organization hadbeen committed.

[ 43 ] The information contained in the December ITO (Exhibit V2-20) in paragraphs 1-27 generally repeats the information from paragraphs 1-29 of the October ITO (Exhibit VD-18). This information provided compelling, credible and corroborated evidence in the October ITO that Jordan Hoelscher had committed the offences of possession of cocaine for the purpose of trafficking and possession of money obtained by crime. [ 44 ] The December ITO alleged the offences of conspiracy to traffic cocaine and committing an offence for criminal organization.

In this ITO, paragraphs 16, 18, 23, 28, 33, 39, 40 and 46 establish the two alleged offences. All of this information, with the exception of paragraph 46, came from Informer “A.” The information in paragraphs 16, 18 and 23 I have already dealt with in 2016 ABQB 44 , which information I found compelling, credible and corroborated, and accordingly I will not repeat my reasons with respect to that information. [ 45 ] To that information, Informer “A” adds the following information regarding events in October of 2012: 1. “Jordan” (Jordan Hoelscher) was trafficking one to one-half kg of cocaine per week; 2.

Cam loads (gets) the most cocaine from Jordan; 3. Jordan was using a new telephone number, 403 848-0996; and 4. Jordan reloaded (obtained) cocaine and sold lots of cocaine during the weekends. [ 46 ] From events of November 2012, Informer “A” adds this information: 1. Croft picked up cocaine for Jordan; 2. Jordan supplies Croft with a couple ounces of cocaine; 3.

Jordan reloads (obtains) with cocaine every Friday or Saturday. [ 47 ] Then in December 2012, Informer “A” adds that Jordan was looking to reload (obtain) with cocaine. [ 48 ] This is compelling evidence that Jordan Hoelscher agreed with at least two other people to traffic cocaine. [ 49 ] In addition to the reasons for finding Informer “A” credible and his information corroborated in my previous judgment, the December ITO contains further information corroborating the information of Informer “A” and supporting his credibility. [ 50 ] Informer “A” advised that Jordan Hoelscher was using a new telephone number.

A subscriber search showed that one of Jordan Hoelscher’s previous numbers, 587 679-0221, to be out of service. [ 51 ] Informer “A” knew “Croft” drove a white van and surveillance confirmed this information. [ 52 ] Surveillance confirmed the informer’s information connecting Jordan Hoelscher, “Croft”, “Cam” and “Shane”, observing them in the company of one another or in attendance at the three addresses of 29 Shaw Close, 31 Shaw Close, and 32 Adamson Avenue. [ 53 ] A search of the garbage at 11 Landry Gate, a residence connected to “Cam”, turned up what appeared to be a score sheet with the name “Cam” on it. [ 54 ] Considering the foregoing, the December ITO contains sufficient reliable evidence to support a reasonable belief regarding the commission of the offences of conspiracy to traffic cocaine and committing an offence for a criminal organization. 2.

The December ITO contained reliable evidence supporting a reasonable belief that at least one of the listed items existed and would be found in 32 Adamson Avenue on December 19, 2012. [ 55 ] Of the six items listed in the December ITO to be found at 32 Adamson Avenue, the Crown only offers argument in support of four as to whether the December ITO contains sufficient information for reasonable grounds. The Crown lists include money, cellular telephones, and cellular telephone records, residential documents. Money [ 56 ] Constable Matthies testified that the drug business operates on cash.

This being the case, one would expect that the drug trafficker would be in possession of large amounts of cash. Accordingly when the ITO refers to money, I take that to mean significant amounts of cash, not merely any amount of money; smaller amounts of money could probably be found at any residence at any time. The Crown urges me to make a number of inferences with respect to how Jordan Hoelscher may handle cash. However, the information in the December ITO has the cash at a number of locations but not at the residence of Mr. Hoelscher at 32 Adamson Avenue.

If there were evidence of Jordan Hoelscher holding significant amounts of cash at his residence, the inference could follow that significant amounts of cash could be found at his residence on December 19, 2012. The ITO contains no such information. The ITO has the cash at stash houses or at the Swollen Goat Tattoo Shop. The ITO lists one of the safe houses as 31 Shaw Close where Jordan Hoelscher keeps drugs and money.

Information in the ITO does connect 32 Adamson Avenue with the storage of drugs but not with money, therefore the ITO does not contain sufficiently reliable evidence to satisfy me on a reasonable probability that on December 19, 2012 significant amounts of cash connected would be found at 32 Adamson Avenue. [ 57 ] With respect to the other three items, there is sufficiently reliable evidence to satisfy me on a standard of reasonable probability that they did exist and would be found in the residence on December 19, 2012, as set out below.

Cellular Telephones [ 58 ] The December ITO connected three cellular telephones to Jordan Hoelscher in relation to his trafficking of cocaine. The numbers included 587 679-0221, 403 896-3778 and 403 848-0996. Jordan Hoelscher at sometime prior to December had allegedly switched to telephone number 403 848-0996. He also possessed telephones related to the other two numbers.

The information in the December ITO connected Jordan Hoelscher to trafficking in cocaine and these telephones. [ 59 ] It is reasonable to infer that on December 19, 2012 Jordan Hoelscher would not likely carry all three telephones with him at the same time. In particular, it is reasonable to infer he would not carry a telephone not in service. [ 60 ] Cell phones retain valuable contact information on them which an alleged trafficker would wish to keep.

As such, it is a reasonable inference that at least one, if not two, of the cell phones could be found at the residence of Jordan Hoelscher at 32 Adamson Avenue on December 19, 2012; it was a logical storage location. [ 61 ] A drug dealer may indeed carry two active telephones with him but it is a reasonable inference that the one not in service would be left in safe storage at his residence.

Cellular Telephone Records [ 62 ] Although the reasonable inference above supports at least one or two telephones at Jordan Hoelscher’s residence, a stronger inference can be made that the records for all of the telephones could be found at the residence. In the ordinary course of an individual’s life, one can expect to find these documents at his or her residence. Accordingly, there was a reasonable probability that the records for the three cell phones connected to Jordan Hoelscher could be found at his residence.

Residency Documents [ 63 ] The Applicant has taken no issue with the suggestion that 32 Adamson Avenue was his residence. Indeed the December ITO contains significant information connecting him to that residence. [ 64 ] Documents such as utility statements, internet or cable television invoices and title documents of either a fee simple or leasehold interest could reasonably be expected to be located in one’s residence. [ 65 ] As a result, it is reasonable to believe residency documents regarding the Applicant would be found at 32 Adamson Avenue. 3.

The December ITO after amplification and excision supported a reasonable belief that the cellular telephones, cellular telephone records and residency documents would afford evidence of Jordan Hoelscher’s participation in a conspiracy to traffic cocaine and commit an offence for a criminal organization. [ 66 ] The December ITO connected three cellular phones to the Applicant with respect to his sale of cocaine. It is common knowledge that cellular telephones store contact information including names of contacts, calls sent and received, dates and times of calls, text messages and dates and times of text messages.

This information could reasonably be expected to be information connecting Jordan Hoelscher to customers and co-conspirators by way of discussions relating to drug trafficking. Such information comprises evidence of the offences. In due course, if the police wished to obtain the information, another search warrant would be required.

However, searching for and seizing the telephones was a necessary step before seeking the next search warrant to examine the information on the telephones. [ 67 ] Therefore, the December ITO supported a reasonable belief that the cellular telephones would provide evidence of the two offences. [ 68 ] Similarly with the cellular telephone records in connection to the telephone seized, they also could provide evidence of the listed offences. Seizing the telephones would be but one step connecting them to Jordan Hoelscher. The police required proof of possession of the telephones by him.

Seizure of the cellular telephone records could reasonably be expected to connect the cell phones to Jordan Hoelscher or another person who, on the whole of the evidence, may in turn connect the cellular telephones to Mr.

Hoelscher. [ 69 ] Therefore, the cellular telephone records would also afford relevant evidence regarding the offences. [ 70 ] Although the December ITO contained a significant amount of information connecting Jordan Hoelscher to 32 Adamson Avenue, possession of the cell phones and cell phone records would be an issue in any prosecution of the offences. [ 71 ] Any residency documents seized in the search of 32 Adamson Avenue could reasonably be expected to assist in establishing possession of those items by the fact that the Applicant lived at the residence and exercised control with respect to the residence and the control of utilities and other services such as television and internet.

Accordingly, the residency documents could afford evidence of the listed offence.

Summary re Reasonable and Probable Grounds to Search 32 Adamson Avenue [ 72 ] Based on the totality of the evidence available with respect to the search warrant granted on December 19, 2012, the December ITO provided reliable evidence that might reasonably be believed such that the authorizing judge on a standard of reasonable probability could have issued the search warrant for the residence. Because the police had lawful authorization to search 32 Adamson Avenue and to seize pertinent items from the residence, no breach of the Accused’s Charter rights occurred.

VII. Reasonableness of Entry at 32 Adamson Avenue Background [ 73 ] On the afternoon of December 19, 2012, after the arrest of Jordan Hoelscher, the Red Deer RCMP carried out searches of 32 Adamson Avenue and two other residences. [ 74 ] At 32 Adamson Avenue, the police carried out a “dynamic entry”. [ 75 ] From the evidence it is unclear exactly how many officers were involved, although Constable Miller who led the entry in uniform described the number as “several”. For certain, Constable Matthies, Constable Miller and one other uniformed officer attended at 32 Adamson Avenue.

Constable Smith, after delivering Jordan Hoelscher to the detachment, joined the search. [ 76 ] Upon arrival at the residence, Constable Miller tried the door and found it unlocked. The officers entered. Some of the officers had their side arms drawn as they entered. Constable Miller announced “Police, search warrant” and ordered the occupants of the residence to lie on the floor.

The occupants were Christina Hoelscher and Ashley Johnston. [ 77 ] The lead investigator, Constable Matthies, had information which led him to believe that the residence was generally occupied by Jordan Hoelscher, his sister, Christina Hoelscher, and on occasion, the daughter of Christina Hoelscher who lived at times with her mother and at times with her father. An ex-girlfriend of Jordan Hoelscher named Nakita on occasion attended at the residence. [ 78 ] Constable Matthies explained the reason for the dynamic entry used at 32 Adamson Avenue was for the purpose of officer safety and the preservation of evidence.

Constable Matthies was aware that during previous searches on other files, weapons had been found close at hand. Constable Matthies also knew that home invasions occur in the context of the drug trade and plainclothes officers could be mistaken for individuals carrying out a home invasion.

Accordingly, the police usually attend with some uniformed officers, but Constable Matthies indicated he can never be certain what the occupant of the residence observes. [ 79 ] From his knowledge and experience with respect to drug investigations, he knew that weapons were often used in the drug trade and a dynamic entry was important for the protection of the officers.

In this case, the December ITO contained information at paragraph 19 of confidential informer indicating that Jordan sells guns with a partner. [ 80 ] Constable Matthies testified a speedy entry prevents occupants from accessing any weapons. [ 81 ] The officer was also concerned that items included in the search warrant such as debt ledgers (score sheets) and cell phones could be destroyed. He considered these items valuable items in the investigation. Issue re Reasonableness of Entry [ 82 ] Did the police carry out the search of 32 Adamson Avenue in a reasonable manner?

Decision re Reasonableness of Entry [ 83 ] The Red Deer RCMP conducted the search of 32 Adamson Avenue in a reasonable manner. Law re Reasonableness of Entry [ 84 ] The Supreme Court of Canada in the case of R v Cornell , 2010 SCC 31 , laid down the standards a police officer must meet with respect to a reasonable search carried out by police pursuant to a search warrant. Except in exigent circumstances the police are required to make an announcement before forcing entry into a dwelling house. Ordinarily they should give: 1. Notice of their presence by knocking or ringing a doorbell; 2.

Notice of authority by identifying themselves as law enforcement officers; 3. Notice of purpose by stating their lawful purpose for entry. [ 85 ] If the police depart from this approach, there is an onus on the police to explain, by way of an evidentiary foundation, reasonable grounds for their concern for officer safety, the safety of the occupants, or about the destruction of evidence.

The greater the departure from these principles of announced entry, the greater the onus on the police to justify their conduct. [ 86 ] The Court stated at paragraph 20: I respectfully agree with Slatter, JA when he said in the present case that “

Section 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present.” Analysis re Reasonableness of Entry [ 87 ] In the context of the circumstances known to the police at the time of the search at 32 Adamson Avenue, the police acted in a reasonable manner in conducting a dynamic entry into 32 Adamson Avenue.

[ 88 ] Constable Matthies, who directed the search, knew from experience the connection with weapons and the drug trade. He knew from previous searches weapons had been found in connection with a search warrant executed in relation to a drug investigation. The ITO contained information that connected Jordan Hoelscher to the sale of guns. [ 89 ] Recent notorious events in and about Edmonton regarding the killing of a police officer in St.

Albert and another in West Edmonton while carrying out routine duties unrelated to the drug trade provide further support for the wisdom in the statement of Slatter JA that the police are not required to put their lives at risk if there is even a low risk of weapons present. Considering what Constable Matthies knew about the drug trade, regarding the use of weapons in the drug trade, he directed the team in a reasonable manner as to their dynamic entry for the safety of the police officers. [ 90 ] As in Cornell , Mr.

Hoelscher had already been arrested but the police had no means of knowing for certain who, if anyone, was in the residence. By way of surveillance, the police had observed Mr. Hoelscher in contact with numerous individuals, some coming to 32 Adamson Avenue. A live concern was that someone in the residence might destroy some of the items for which the police intended to search. Very little effort would be required by any occupant of the residence to drop a cell phone into water or other harmful substances, thereby possibly destroying the evidence contained within it.

Summary re Reasonableness of Entry [ 91 ] Accordingly, for the reasons set out, the police entered the residence in a reasonable manner. VIII. Reasonableness of Seizure and Search of the Lincoln Navigator Background [ 92 ] Constable Rose of the Red Deer RCMP testified that during the briefing on the morning of December 19, 2012, he was directed to stop Jordan Hoelscher while driving a black Lincoln Navigator motor vehicle. The purpose of the stop was to arrest Mr.

Hoelscher for conspiracy to traffic cocaine and committing an offence for a criminal organization. [ 93 ] Subsequent and incidental to the arrest, the police intended to search the Lincoln. [ 94 ] Officers carrying out surveillance of Mr. Hoelscher advised that he drove the motor vehicle to the Swollen Goat tattoo shop. He left the Lincoln Navigator before the police could stop it and arrest him. [ 95 ] The police waited outside the tattoo shop and observed the motor vehicle leave. The officer observing the motor vehicle believed Mr.

Hoelscher occupied it so the police decided to stop and arrest the occupants. [ 96 ] When Constable Rose arrived at the location of the arrest, two individuals were under arrest – a male and female. Constable Rose realized neither were Jordan Hoelscher, and he directed the immediate release of both. [ 97 ] However, the police did not release the vehicle. Rather, Constable Rose drove it to a warehouse used for the storage of exhibits.

Upon his arrival at the warehouse he made a cursory examination of the interior of the vehicle in order to observe any items in the vehicle which he ought to inventory to avoid a dispute later as to the loss of personal items. Other than this, he performed no search of the vehicle. [ 98 ] The police did not obtain a search warrant for the vehicle and eventually the police released it.

Analysis re Reasonableness of Search and Seizure of Lincoln Navigator [ 99 ] The Crown acknowledges that once the police observed they had arrested the wrong individuals, the individuals ought to have been allowed to drive the vehicle away as the police had no authority to seize or search it. [ 100 ] Accordingly, the Crown acknowledges that the seizure of the Lincoln Navigator was a breach of Jordan Hoelscher’s rights under s 8 of the Charter . IX.

Delay in Implementational Rights Regarding Retaining and Instructing Counsel Background [ 101 ] As the Applicant’s alleged breach regarding his right to implement his s 10 Charter rights turns a good deal on the timing of events, the following time line sets out the relevant circumstances. All of the following times relate to December 19, 2012. 2:30 pm (approximately) Constable Smith arrests Jordan Hoelscher, provides him from memory his s 10 Charter rights

2:49 pm After a brief pat-down search of Mr. Hoelscher and placing him in his police vehicle, Constable Smith reads Mr. Hoelscher a police caution and read from a card Mr. Hoelscher’s s 10 Charter rights. 2:51 pm Constable Smith turns Mr.

Hoelscher over to Constable Szucki for transport to the south Red Deer detachment because Constable Smith’s vehicle did not have a silent patrolman security device between the passenger seat and the prisoner’s seat. 3:08 pm Constable Szucki and Constable Smith arrive at the detachment, Constable Smith takes over custody of Jordan Hoelscher and turns him over to Corporal Dickman. 3:21 pm Dynamic entry at 32 Adamson Avenue by the RCMP. 3:36 pm The police have secured the residence and have the two occupants, Christina Hoelscher and Ashley Johnston, under arrest. 3:36 to 3:58 pm (approximately) The police are involved in allowing Christina Hoelscher to arrange child care for her child shortly returning home from school and arrange for the safekeeping of a dog found at the residence. 3:58 pm The police start the search of 32 Adamson Avenue. 3:58 to 4:00 pm Constable Matthies calls Corporal Dickman, advises him to provide phone calls for all of the individuals held in custody, Jordan Hoelscher, Christina Hoelscher, Ashley Johnston, Lindsay Albert, Croft Monroe- Bowes and Jason Steman. 4:08 pm Corporal Dickman arrives at the cellblock. 4:12 pm Corporal Dickman notes the booking of Christina Hoelscher into cells. 4:19 pm Corporal Dickman puts Christina Hoelscher into cell C5 to use the washroom. 4:21 pm Corporal Dickman reads Christina Hoelscher a secondary caution. 4:24 pm Christina Hoelscher is escorted to a telephone room. 4:25 pm Corporal Dickman contacts Jake Chadi’s office at a phone number provided and the secretary at the office advises that Jake Chadi will contact Corporal Dickman on his cell phone. 4:29 pm Christina Hoelscher requests that Corporal Dickman contact Jake Chadi again.

Corporal Dickman again attempts to contact Jake Chadi; no answer. Christina Hoelscher advises she does not want to call another lawyer and she would wait for Jake Chadi to return the call. 4:30 pm Christina Hoelscher returns to her cell. 4:31 pm Jordan Hoelscher is removed from his cell and placed in the phone room. 4:32 pm Corporal Dickman reads Jordan Hoelscher his s 10(

a) and 10(

b) Charter rights, and Jordan Hoelscher requests an opportunity to speak to counsel. 4:34 pm Corporal Dickman reads Jordan Hoelscher a caution. 4:35 pm Corporal Dickman reads Jordan Hoelscher a secondary caution. 4:38 pm Corporal Dickman tries to contact Jake Chadi on his cell phone; no answer so he leaves a message. 4:40 pm Corporal Dickman contacts Jake Chadi’s office at the request of Jordan Hoelscher to inquire whether another lawyer would speak to Mr. Hoelscher.

Corporal Dickman speaks with Anthony Vretenar. 4:42 pm (approximately) Corporal Dickman passes the telephone to Jordan Hoelscher and exits the room. 4:47 pm Jordan Hoelscher exits the telephone room and in response to Corporal Dickman’s inquiry as to whether he had spoken to a lawyer, advises yes. 4:49 to 6:16 pm Corporal Dickman provides an opportunity to the four others in custody to contact legal counsel. 6:16 pm Corporal Dickman speaks to Jake Chadi and advises him that Jordan Hoelscher and Christina Hoelscher were in custody.

Jake Chadi requests he receive a call back when the members know the police position on bail. 7:55 pm Corporal Dickman advises Jake Chadi that bail would not be dealt with for Jordan Hoelscher until the morning, and Jake Chadi advises that he wished to have Mr. Hoelscher call him in the morning. 9:00 pm Corporal Dickman ends his shift. [ 102 ] Chronology on December 20, 2012 is as follows: 7:00 am Corporal Dickman commences his shift. 8:27 am Corporal Dickman tries to contact Jake Chadi on his cell phone.

8:29 am Corporal Dickman calls Jake Chadi’s office and a receptionist advisesthat Jake Chadi was driving to Desmarais and she suggests he try before10:00 am when court would start. [103] After 8:29 am Corporal Dickman did not contact Jake Chadi or attempt to contact him, nor did he provide Jordan Hoelscheranother opportunity to contact Jake Chadi. [104] The Red Deer detachment has one fully equipped telephone room containing the necessary counsel contact information and atelephone. There are two interview rooms with telephones. Issue re

Section 10 Charter Rights [105] Did the police provide Jordan Hoelscher with a reasonable opportunity to implement his s 10 Charter rights? Decision re

Section 10 Charter Rights [106] The police provided Jordan Hoelscher with a reasonable opportunity to implement his s 10 Charter rights. Law re

Section 10 Charter Rights [107]

Section 10 of the Charter reads: 10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [108] Regarding the implementational duties which arise upon a detainee indicating a desire to exercise his right to counsel, the firstduty is to provide the individual with a reasonable opportunity to exercise the right (except in urgent and dangerous situations): R vLuong, 2000 ABCA 301; R v Bartle, [1994] 3 SCR 173, (SCC). [109] The following passage from R v Strachan, [1988] 2 SCR 980, (SCC) at para 34, provides some assistanceregarding “reasonable opportunity”: 34 The trial judge rejected the argument that Constable Bisceglia needed to get the situation “under control” before allowing anytelephone calls and held that the violation of the right to counsel occurred as soon as the Constable refused to let the appellant telephonehis lawyer.

Esson J.A. disagreed with the trial judge on this point and held that Constable Bisceglia’s concern to stabilize the situationwas a proper one. Although it is not necessary to decide the point in this case, I would be inclined to agree with Esson J.A. Thecombination of an arrest in the accused’s home, the presence of two unknown people, and the knowledge that two restricted weaponswere in the apartment, was a potentially volatile situation.

It is true the accused had the proper registration permits for the weapons, butnotwithstanding, the possibility of their use was a serious matter for a police officer to consider while taking a person into custody. In myopinion, Constable Bisceglia was justified in preventing any new factors from entering the situation until some of the unknowns had beenclarified. Thus I would say that the violation of s. 10(

b) did not occur when Constable Bisceglia initially prevented the appellant fromtelephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police wereclearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that thedenial of counsel began from that point. [110] In R v Taylor, 2014 SCC 50, the Supreme Court of Canada further clarified that s 10(

b) guarantees that an individual will haveaccess to a phone to exercise his or her right to counsel “at the first reasonable opportunity” (at para 28, emphasis in original). Thisreduces the possibility of accidental self-incrimination and ensures that police refrain from eliciting evidence from the individual beforeaccess to counsel has been facilitated. [111] The Supreme Court of Canada case of R v Suberu, 2009 SCC 33, is also instructive as to the meaning of the words “withoutdelay” in s 10(

b) of the Charter. There the Court explored whether police duties under s 10 “must be executed immediately at the outsetof a detention, or whether these duties manifest at some point subsequent to the start of a detention” (at para 39). Writing for themajority, McLachlin CJ and Charron J held that the words “without delay” mean “immediately”, subject only to concerns for officer orpublic safety, and such other limitations as prescribed by law and justified under s 1 of the Charter (at para 42). The Alberta Court ofAppeal has further explored the meaning of the word “immediately”, holding that “immediate” does not mean “instantaneous”: R vNelson, 2010 ABCA 349 at para 17. Analysis re

Section 10 Charter Rights [112] The Applicant alleges the police did not permit Jordan Hoelscher to contact counsel as soon as reasonably possible as requiredby s 10(

b) of the Charter. The Applicant submits the delay amounted to approximately two hours 12 minutes, without any reasonableexplanation for the delay. [113] Considering that two hours and 12 minutes more or less passed from the time of his arrest until Mr. Hoelscher spoke to a lawyerdoes raise some questions as to the reasonableness of the delay in order to allow him to contact counsel. However, when one looks at the

events which transpired during that period of time, the delay appears reasonable. [ 114 ] The first time period runs from 2:30 pm to 3:08 pm, the time of the arrest until the arrival of Jordan Hoelscher at the Red Deer detachment. Ordinarily detainees are provided an opportunity to contact counsel in a secure, private phone room.

There may be circumstances which would permit a detainee to call before the arrival at the detachment, but in this situation there is no evidence to support a finding that the Accused could have been allowed to make a call before his arrival at the detachment. [ 115 ] The next time period is from 3:08 until 3:21. During this time the police did not place Mr. Hoelscher in a phone room for the purpose of preventing him making a call to anyone who might destroy evidence prior to the search or do anything to create a safety risk to the officers who planned on searching the residence, another reasonable delay.

Once a detainee is placed in the phone room, he is at liberty to make any call he wants. It takes little imagination to conclude that a detainee might well call someone in the residence in an effort to have evidence destroyed or, worse, place the persons in the residence on notice that the police are on the way and thereby place the officers’ safety at risk. [ 116 ] The next delay occurs from 3:21 to 3:36. During this time the police entered the residence at 32 Adamson Avenue arrested the two individuals found in it and removed them.

During these 15 minutes the police were involved in a dynamic situation, the circumstances of which are such that I find it reasonable that Constable Matthies did not contact Corporal Dickman to advise him that the detainee could now contact his counsel. The police were involved in gaining control of the situation—a reasonable course of action: Strachan . [ 117 ] The next time period which passes occurs from 3:36 until 4:00 pm, more or less. Constable Matthies thought that he had contacted Corporal Dickman at approximately 3:58 pm to advise that Mr.

Hoelscher should be allowed to contact counsel whereas in the agreed statement of facts Corporal Dickman indicated that it occurred at 4:00 pm. Little turns on the difference of two minutes. For purpose of analysis, I will treat the time as 4:00 pm more or less. During these 22 to 24 minutes the police did not search the residence. They were involved with arranging child care for the child of Christina Hoelscher and trying to secure a dog found on the premises.

As Constable Matthies testified, “there was no down time.” During this period of time if one looked for perfection rather than reasonableness, the police could be criticized for the delay in calling Corporal Dickman to advise that the situation was now under control and Mr. Hoelscher could contact counsel. However, the Court looks for reasonableness not perfection, and in these circumstances the police were still involved in bringing the situation under control: Strachan . Again, this was a reasonable delay. [ 118 ] The next time period runs from 4:00 pm until 4:31 pm when Mr. Hoelscher enters the phone room.

During these 31 minutes the police were now dealing with a number of detainees including the sister of the Accused, Christina Hoelscher. The police permitted her the first opportunity to contact counsel. [ 119 ] Constable Matthies describes one suitable telephone room at the detachment for the individuals to contact counsel.

There was evidence of two other interview rooms with telephones but without the necessary information to allow a detainee to look for phone numbers with respect to available counsel. [ 120 ] The officer could not recall these rooms having ever been used for a detainee to contact counsel. [ 121 ] In this situation with six detainees, the police faced a situation with choosing which individual to place into the telephone room first.

To follow the logic of finding a delay during this time period for the individuals left to wait their turn would place the police in the impossible situation of causing a breach of the other detainees’ rights unless they could place all six of the individuals into a telephone room at the same time. The police in these circumstances proceeded in an organized and reasonable manner to allow each detainee to contact counsel. [ 122 ] At 4:31 Mr. Hoelscher was placed in a telephone room and interacted with Corporal Dickman in circumstances with which the Applicant takes no issue.

During the next 11 minutes the corporal provided advice with respect to Mr. Hoelscher’s s 10(

b) rights and provided a caution. Attempts were made to contact counsel in a manner with which the defence takes no issue. At 4:42, Mr. Hoelscher eventually had the opportunity to begin speaking with counsel.

Summary re

Section 10 Charter Rights [ 123 ] In all of the circumstances, the police provided a reasonable opportunity for Jordan Hoelscher to implement his right to counsel. At most the police could be criticized for a 22-minute delay while dealing with a child and a dog, but in light of all of the circumstances I am satisfied the police were acting reasonably. Accordingly, with respect to this issue, the Applicant has not satisfied me on a balance of probabilities that the police breached his s 10(

b) Charter rights. X. Abuse of Process Background [ 124 ] On December 19, 2012 when the Red Deer RCMP searched the three residences at 29 Shaw Close, 31 Shaw Close and 32 Adamson Avenue, Constable Matthies directed the officers to arrest all persons found therein for conspiracy to traffic cocaine. [ 125 ] Upon the search of the residences, five individuals—two males and three females—were arrested. Of those individuals the police charged only one, Croft Monroe-Bowes. The other four they released without charges. Ashley Johnston and Lindsay Albert were interviewed and released.

Jason Steman gave a statement to the police before his release. [ 126 ] After a period of detention, Christina Hoelscher (the sister of Jordan Hoelscher) was interviewed by Constable Matthies. She provided a statement, a portion of which became an exhibit in these proceedings.

[ 127 ] The Applicant alleges the police arrested the five individuals without grounds and carried out interviews under the cloud of possible prosecution. This was done, the Applicant alleges, in an effort to interview them and take statements from each so as to obtain evidence against him. He alleges the police acted improperly in an effort to obtain the evidence, thereby breaching Mr. Hoelscher’s s 11 or s 7 Charter rights. Issue re Abuse of Process [ 128 ] Did the conduct of the police with respect to the other five individuals breach the Charter rights of Mr. Hoelscher?

Decision re Abuse of Process [ 129 ] The conduct of the police did not breach Mr. Hoelscher’s Charter rights. Law re Abuse of Process [ 130 ] For the purpose of this proceeding, the Applicant raises his s 11(

d) rights which are as follows: 11 Any person charged with an offence has the right ... (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent impartial tribunal. Analysis re Abuse of Process [ 131 ] Setting aside for the moment any consideration of the circumstances surrounding the arrest of Christina Hoelscher, the evidence with respect to the other individuals does not support any allegation of a breach of their rights let alone the rights of Mr. Hoelscher.

The Court heard little evidence with respect to the grounds for their arrest, nor anything of the circumstances with respect to the taking of any statements, or the supplying of any information by Jason Steman, Lindsay Albert or Ashley Johnston. Such a lack of evidence cannot found anything near to proof on a balance of probabilities regarding a breach of their rights or Mr.

Hoelscher’s rights arising from an abuse of process. [ 132 ] The Applicant takes no issue with respect to the police conduct regarding Croft Monroe-Bowes, as the police charged him. [ 133 ] Regarding Christina Hoelscher, her situation became clearer to the Court from the evidence of Constable Matthies. She provided a statement to Constable Matthies, a portion of which the Court heard. [ 134 ] Ordinarily for an individual to gain a remedy for a Charter breach, that person must allege a breach of one of his or her own Charter rights.

However, that does not mean the conduct of the police regarding a third person or persons could never rise to a level that would be so outrageous that the Court could find a breach with respect to an accused because it affected the right to a fair trial. This may be a relevant consideration in a s 24(2) Charter analysis. [ 135 ] The Crown argues the facts supported the arrest of Christina Hoelscher. Constable Matthies testified he had information regarding her from an informer vetted from the source debriefing notes.

We do not have this information and cannot have it without a hearing as to her rights. [ 136 ] From the evidence, the Court knows the police found her at 32 Adamson Avenue, she and sometimes her child lived there, the police targeted the residence as the residence of a possible drug trafficker and surveillance of it showed activity which could be consistent with drug trafficking. [ 137 ] Whether or not Christina Hoelscher had any privacy interests in a text message advising she should be given cocaine, it said nothing more than that she should be given a small amount of cocaine.

Such information could not support grounds for her arrest. [ 138 ] Constable Matthies directed the arrest of everyone found in the residence.

A proper hearing as to the Charter rights of Christina Hoelscher might provide better evidence, but what this Court has heard provides nothing more than a suspicion for the arrest of Christina Hoelscher. [ 139 ] Regarding the circumstances surrounding the taking of the statement from Christina Hoelscher, the Court did not hear from her in person. [ 140 ] Notwithstanding the foregoing, the conduct of the police relating to Christina Hoelscher does cause me some unease from what we do know. [ 141 ] Although the police had decided not to charge her and had no reason to detain her before the commencement of the taking of the statement, they did not give her that information.

As far as she knew, even though the police assured her she could stop the statement at any time and did not have to give one, she was not free to go. Well into the statement process when she said she wanted to go home, Constable Matthies assured her that she would not be charged and that she would leave “today.” [ 142 ] Although he told her they would not charge her and she could go home, Constable Matthies did not tell her she could leave without providing a statement.

[143] If the Crown calls Christina Hoelscher in these proceedings as a witness, she may have her own reasons to raise a breach of herCharter rights. At that time the Court, perhaps on hearing from her, may find a breach of her Charter rights. Whether that hearingprovides a remedy beneficial to Jordan Hoelscher remains for another day. However, at this time without a fulsome hearing into apossible breach of the Charter rights of Christina Hoelscher, regarding her arrest, and the taking of the statements, I am not persuadedthat the Charter rights of Jordan Hoelscher have been breached by way of an abuse of process on the part of the police.

Summary re Abuse of Process [144] On the evidence there is no proof on a balance of probabilities the police treatment of Christina Hoelscher or the other detaineesbreached Jordan Hoelscher’s Charter rights. [145] If Christina Hoelscher becomes a witness in the trial of this matter and counsel become aware of her intention to raise an issueregarding a breach of her Charter rights and seek a remedy, then she and her counsel should be advised, if possible and if proprietypermits, to bring her application before the trial commences. XI.

Lost Evidence Background [146] Constable Matthies, lead investigator in this case, made inquiries of various databases before preparing the December ITO. Hedid not retain a copy of each of his searches. He testified the information he thought relevant found its way into the December ITO. [147] He could not be certain if the searches could be duplicated to display the exact information as he found it on the date of hissearches.

He explained the databases have information regularly updated either by removal or addition. [148] The officer could not recall what information he did not retain. [149] Constable Smith, the RCMP officer who arrested Jordan Hoelscher, returned to the residence of Jordan Hoelscher to assist inthe search of 32 Adamson Avenue. [150] While in the residence, Officer Smith took photographs of the main floor and upstairs areas, the basement, and the exhibitsseized.

He testified his usual practice in the handling of such photographs included taking the pictures on a camera, transferring them to acomputer and then burning a CD of the photographs. [151] To the best of his recollection he followed that practice in this case and placed a CD with the photographs on the desk ofConstable Matthies. [152] When Constable Matthies examined the CD to look at the photographs, none appeared of the basement or the exhibits.

No onecould provide an explanation of what may have become of the photographs of the basement and exhibits. [153] The Applicant alleges a breach of his s 7 Charter rights with respect to the information retrieved from the databases and the lossof the photographs,. Issue re Lost Evidence [154] Did the failure of Constable Mathies to retain copies of the database inquiries or the loss of the photographs amount to a breachof the Applicant’s s 7 rights? Decision re Lost Evidence [155] The failure to retain the searches and the loss of the photographs did not amount to a breach of Mr. Hoelscher’s s 7 Charterrights.

Law re Lost Evidence [156]

Section 7 of the Charter states as follows: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [157] Under the principles established in Stinchcombe, an accused is “entitled to all material in the possession or control of the Crownthat is potentially relevant to a case, whether favourable to the accused or not” (R v Lising, 2005 SCC 66 at para 26).

Part of the duty todisclose entails a corollary duty to preserve information, exhibits, recordings, investigation notes and any other relevant evidence:Charkaoui v Canada (Minister of Citizenship and Immigration), 2008 SCC 38 at para 49; R v La, [1997] 2 SCR 680, (SCC); R v Egger, [1993] 2 SCR 451, (SCC). Analysis re Lost Evidence

[158] Regarding the database searches counsel for Mr. Hoelscher acknowledges that he cannot point to any particular item ofevidence in this case that is distinguishable from the evidence in the case of R v Croft, 2014 ABQB 23, wherein Justice Burrows stated(at para 68): The evidence did not establish, however, that the failure to print and retain a hard copy of the database search had any consequence. Itdid not establish that the information obtained by the officer’s database search would not be obtained if the database search in questionwere repeated now.

There is nothing to suggest that the original source of the information included in the affidavit, the database, is nolonger available to be searched. [159] In this case, however, I would go further than Justice Burrows in Croft. These circumstances are closer to those in La, whereinSopinka J states: “The police cannot be expected to preserve everything that comes into their hands on the off-chance it will be relevantin the future” (at para 21, CanLII). [160] The officer testified he kept relevant information, and such information made its way into the December ITO.

Apparently theRCMP process may be changing so that officers keep copies of screen shots of information from databases queried. However, the officerwill still not be required to provide information not relevant to the case. [161] In any event nothing in the evidence persuades me that the failure to keep copies of the queries on the database amounted to abreach of Mr. Hoelscher’s s 7 rights. [162] However, the loss of the photographs is of greater concern.

This loss requires the application of the two-stage inquiry in La. [163] The Court is first required to decide whether or not the evidence lost was relevant: La at para 17 . The definition ofrelevance means whether the information could reasonably be used by the Accused in meeting the case put forward by the Crown orotherwise in making a decision which might affect the conduct of the defence. [164] In this case the photographs are relevant even though the original evidence has not been lost.

Evidence of the location of theexhibits at the time of the search or the position of other items in the basement during the search might be of assistance to the defence.Accordingly at stage one, the photographs are found relevant and the analysis must move to the next stage. [165] At the second stage the Court assesses the reason for the loss of the evidence: La at para 21 . The Crown then has theonus to provide an explanation for the loss.

The Court must decide whether the loss was due to unacceptable negligence or abuse ofprocess: La at paras 20, 22 . [166] Writing for the majority, Sopinka J stated at para 20 : ... The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yetdespite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. Theprinciple in Stinchcombe (No. 2), supra, recognizes this unfortunate fact.

Where the Crown’s explanation satisfies the trial judge that theevidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached... [167] Exactly what comprises unacceptable negligence remains unclear from that case. Sopinka J goes on to state, “The mainconsideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve theevidence for disclosure” (at para 20, CanLII).

The relevance of evidence determines the “degree of care for its preservation that isexpected of the police” (at para 21, CanLII). [168] Where the police act reasonably to preserve the evidence, I take it there will be no unacceptable negligence. [169] This Court must also ensure that no abuse of process has led to the loss of evidence. As Sopinka J noted at para 22 ofLa, the type of conduct that falls into abuse of process includes: ... conduct on the part of governmental authorities that violates those fundamental principles that underlie the community’s sense ofdecency and fair play.

The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating theCrown’s obligation to disclose the material will, typically, fall into this category. An abuse of process, however, is not limited to conductof officers of the Crown which proceeds from an improper motive... Accordingly, other serious departures from the Crown’s duty topreserve material that is subject to production may also amount to an abuse of process notwithstanding that a deliberate destruction forthe purpose of evading disclosure is not established.

In some cases an unacceptable degree of negligent conduct may suffice. [Citations omitted] [170] In this case, Constable Smith believes he took the pictures, transferred them to his computer and burned a CD as testified per hisusual practice. [171] He did not testify that he checked the CD for the photographs of the basement and the exhibits. From the evidence I cannotmake a reasonable inference that he double-checked the CD.

He placed the CD on the desk of Constable Matthies, the lead investigator. [172] Eventually it came to the attention of Constable Matthies that the photographs of the basement and the exhibits were not on theCD. No amount of inquiry between the two officers could provide an explanation of what became of them. [173] I accept the officer’s evidence that he took photographs of the basement and the exhibits.

I accept he followed his usual practiceand burned a CD of what he thought was all of the photographs. [174] From there, however, the trail goes cold and a number of competing explanations might explain the loss of the photographs. Amalfunction may have occurred in the camera such that the camera did not record the images in the basement and the exhibits. Although

unlikely, the officer may have made two CDs, and the one with the photographs of the basement and the exhibits was lost. [ 175 ] The computer may have malfunctioned and not burned the photographs to a CD. [ 176 ] Overall, however, it appears that the officer took the photographs, followed his ordinary practice and the photographs have disappeared. [ 177 ] These circumstances fall into the case where the police took reasonable steps and notwithstanding their best efforts, the photographs of the basement and exhibits have been lost.

Summary re Lost Evidence [ 178 ] The loss does not amount to unacceptable negligence or abuse of process. Therefore, there has been no breach of the s 7 Charter rights of the Accused. XII. Section 24(2) [ 179 ] There remains for argument, after counsel consider these rulings, the matter of s 24(2) of the Charter . As soon as reasonably possible I would ask that counsel arrange to appear before me to make those submissions and provide any further written briefs. [ 180 ] The Crown during argument with respect to the production orders for the seizure of the text messages raised s 492.2 of the Criminal Code . I have not yet taken the

section into consideration. The issue of the seizure of the text messages ought to be dealt with in terms of either a production order on reasonable grounds and in compliance with s 8 of the Charter , or a

Part VI warrant. [ 181 ] This

section as a fall-back position may have relevance with respect to the s 24(2) submissions. Whether the Crown wishes to advance any further argument regarding it remains in the discretion of the Crown. Heard on the 13 th through the 28 th days of October, 2015. Dated at the City of Edmonton, Alberta, this 12 th day of May, 2016. E.J. Simpson J.C.Q.B.A. Appearances: S.M. Renouf, Q.C. Simon Renouf Professional Corporation for the Appellant

Dennis C. Hrabcak Public Prosecution Service of Canada for the Respondent