R v Hussein, 2016 ABQB 703

Court of Queen’s Bench of Alberta Citation: R v Hussein, 2016 ABQB 703 Date: 20161213 Docket: 140531179Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Mohamed Abdiwahid Hussein Accused _______________________________________________________ Ruling on Voir Dire by the of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] The Crown charged the Accused Mohamed Abdiwahid Hussein with the following: That he on or about the 13th day of May, 2014, at or near Calgary, Alberta, did unlawfully possess a controlled substance to wit: cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act .

That he, on or about the 13th day of May, 2014, at or near Calgary, Alberta, did have in his possession a loaded prohibited firearm (or a restricted firearm, or an unloaded prohibited or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm) for which he did not have an authorization or licence and registration certificate, contrary to section 95(1) of the Criminal Code of Canada . [ 2 ] On the first day of the trial, Mr. Hussein made an application pursuant to section 24(2) 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 [ Charter ], to exclude certain evidence. He argues that members of the Calgary Police Service (“CPS”) breached his rights under the Charter ss 8 and 10(b). Those sections provide as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 10. Everyone has the right on arrest or detention ... (

b) to retain and instruct counsel without delay and to be informed of that right; II. Agreed Statement of Facts [ 3 ] The parties provided this Court with an agreed statement of facts (“Agreed Statement”). The content of the Agreed Statement provides a background of this case, so this Court transcribes it in its entirety as follows, with minor changes to anonymize certain

addresses and certain persons: 1. The Calgary Police Gang Enforcement Team (“GET”) received information in January of 2014 about a person of interest (“POI”) that had relocated from Toronto to Calgary. GET members began looking for the POI and on January 29, 2014 Cst. Brad MacLean of GET received a call that the POI was at the Marquee Beer Market on Macleod Trail. 2. He and other GET members attended the Marquee Beer Market and observed the POI leaving the area with a group of people. The POI left in the passenger seat of a rented GMC Terrain (the “Terrain”). The Accused, Mr. Hussein was driving the Terrain. 3.

Surveillance was continued on the Terrain through that night and at one point the Terrain met up with a black Ford Edge (the “Edge”). CPIC checks confirmed the Edge to be registered to an [AA]. It is not clear who drove the Edge that night. 4. Cst. MacLean later contacted the rental company and confirmed that the Accused had rented the Terrain but since had returned it and rented a Ford Taurus. 5. Cst. MacLean began looking into [AA] and ascertained that the Accused was known to GET as an associate of [AA]. [AA’s] address was found to be Apt. […] Springbank Boulevard SW [“the Springbank Property”]. 6. Cst.

MacLean spoke with the residence manager for [the Springbank Property] and ascertained that [AA] and [MN] had rented suite […]. On January 30, 2014, Cst. Maclean observed the Edge parked in stall 55. 7. It should be noted that [AA] was never observed during this investigation. 8. On Feb. 11, 2014 the Accused was seen driving a white rental Jeep Cherokee the (“White Jeep”) which was parked outside of an African restaurant on 17 th Avenue. He met with an unknown male there and eventually returned to the White Jeep. He drove a few blocks away and drove to a nearby residence on 49 th street.

He left the White Jeep, entered the residence and left three minutes later. He then drove to a cul-de-sac near 16 th Ave and 19 th St. NE and met with occupants of a green minivan, again for only for a few minutes. 9. After the two short meetings he drove to [the Springbank Property], walked through the front doors, and then returned with some suitcases which he threw into a dumpster. He then returned back inside [the Springbank Property]. Later the same day he left the complex, got back into the White Jeep and drove into the parkade.

Later still he left the parkade in the White Jeep and surveillance was lost. 10. In Cst. Maclean’s experience these short meetings were consistent with drug trafficking. 11. On February 19 th , Cst. Maclean observed the Accused drive the White Jeep into the parkade at [the Springbank Property] and also observed the Accused key his way into suite [...]. 12. On February 24 th , Cst. Maclean and other GET members followed the Accused from [the Springbank Property] to Boston Pizza at the Westbrook Mall driving the White Jeep. They then observed an unknown male enter Hussein’s vehicle only to get out minutes later.

That person then went to a black Acura and placed a bag in the trunk. That Acura was registered to [RJ] who had a criminal history, including entries for drugs. 13. In Cst. Maclean’s experience this short meeting was consistent with drug trafficking. 14. Subsequent to the observations of Feb. 11, 19 and 24 Cst. Maclean ascertained from the rental company that the White Jeep had been returned with front-end damage and replaced by a Blue Nissan Altima (the “Blue Altima”).

15. On March 1, 2014, members of the Calgary Police Strike Force Unit (“SFU”) observed the Accused driving the Blue Altima from [the Springbank Property] to the Kensington PetroCanada station where he began driving in an erratic and circular pattern. This was in Cst. Maclean’s opinion an effort at counter-surveillance. 16. On March 11, 2014 members of the GET made observations of the Accused driving the Blue Altima to [the Springbank Property] and enter the parkade. Later he was seen leaving, this time driving the Edge. 17.

Later that day, GET members located the Accused back in the Blue Altima and driving to a residence at […] 43 rd Street SW, where he exited the Blue Altima, walked into the residence and returned to the car one minute later. Another vehicle parked outside was registered to a [ZN], who had a criminal history related to drugs. In Cst. Maclean’s experience this short meeting was consistent with drug trafficking. 18. On March 21, 2014 the Accused was observed driving the Blue Altima from CrossIron Mills back to [the Springbank Property] and meet up with a green Toyota Tercel.

That vehicle was registered to [HAB], who had a drug-related history including trafficking. Earlier that day an unknown male had been observed exiting [the Springbank Property] and placing a black gym bag into that same Tercel. 19. On March 27, 2014, the Accused was observed leaving [the Springbank Property], now driving another Jeep Cherokee, this time blue in colour (“Blue Jeep”) with a passenger and followed all the way to Edmonton. The first stop was at an apartment where the passenger exited the Blue Jeep and returned shortly thereafter.

Then they drove to another apartment where two unknown persons exited an apartment and got into the Blue Jeep for 17 minutes. They then drove back to Calgary. In Calgary they drove to a house on 41 st street and went inside. 20. In Cst. Maclean’s experience these two short meetings were consistent with drug trafficking. 21. Later that evening Cst. Maclean observed a red Dodge Caliber drive up the house on 41 st street and its occupants entered the house. Later in the investigation that same car was found with a bullet hole in the glass. 22.

On April 8, 2014 the Accused was seen leaving [the Springbank Property] in the Blue Jeep and drove to a house at […] 15 th Ave, where an unknown male exited the residence and got into the vehicle which then drove to a nearby Esso station. The unknown male went into the Esso station briefly before being driven back to the house. 23. Later that same day the Accused was seen driving the Blue Jeep with a number of occupants. They drove to a pizza restaurant and the occupants left the vehicle.

Eventually the lights on the Blue Jeep flickered and an older white male got into the back seat of the Blue Jeep and the vehicle drove a short distance before letting the unknown white male back off. 24. In Cst. Maclean’s experience these two short interactions were consistent with drug trafficking. 25. On May 10 th , 2014 SFU members observed the Accused being driven as a passenger in another Nissan Altima, this time Black in colour (“Black Altima”) from [the Springbank Property] and travelling to the Ramada Inn in the Calgary Motel Village.

Both occupants entered a hotel room for a few minutes before getting back into the Black Altima and driving away. 26. On May 11 th , SFU members again observed the Accused, this time driving the Black Altima from [the Springbank Property] to the Holiday Inn in the Calgary Motel Village where an unknown male exited a hotel room, got into the Altima for less than a minute before going back. 27. In Cst. Maclean’s experience both interactions on May 10 th and 11 th were consistent with drug trafficking.

28. The Police observed the Applicant on 11 days of surveillance between January 30-May 17, 2014. There were 17 additional days where surveillance took place but no pertinent observations were made. 29. On May 13, 2014 CDSA search warrants were sought and obtained for the following locations: a. [The Springbank Property], suite […]; b. The Ford Edge; c. The Black Nissan Altima; d. […] 40 Street SE. 30. Location A ([the Springbank Property]) was entered by TAC at 9:30 and the Accused was located in bed.

He was arrested first by TAC officer Dery who turned him over to uniformed officers Ryder and Vink, who took him to Westwinds for holding. 31. Det. Pearson searched the residence beginning at 9:30. He located: a. 7g of cannabis; b. $4,590 cash; c. 2 gun cleaning kits; d. LG flip phone; e. iphone 5; f. The accused’s driver’s licence; g. The accused’s passport; h. Auto insurance for the Ford Edge; i. Rolling papers; j. Keys for the Black Altima. 32. At 6:32AM Cst. Leckie observed the two vehicles in the parkade. Continuity of the vehicles was turned over to Cst. Kelly who in turn passed over continuity to Cst.

Taylor at 9:49 for scene security. 33. At 10:37 Det. Pearson began searching the Black Altima and located: a. 37.7g of crack cocaine located in the driver’s side door; (*Crack is for the purpose of trafficking as defined the CDSA ) b. A digital scale; c. $60; d. A key for the Ford Edge; e. A rental contract in the name of the Accused for the Altima; f. A driver’s licence in the name of [LE]. 34. At 10:51 Det. Da Silva Spence began searching the Ford Edge, using the keys found in the Black Altima. In the trunk, within a black

computer bag on the driver’s side he located a black garbage bag. Found within that garbage bag were: a. 2 boxes of .45 ammunition; b. 2 boxes of .380 ammunition; c. An green cloth bag containing a loaded .45 semi-automatic pistol with a clip of 7 bullets (*gun meets definition of Firearm in Criminal Code ); A second computer bag contained: d. 4 cellphones; e. A bill of sale for the Ford Edge. 35. At 10:45AM TAC made entry into location “D” and at 10:56AM the residence was cleared. Numerous occupants were arrested and processed by GET members, but ultimately not charged. The search was completed at 1pm.

Nothing of evidentiary value was found. 36. At 9:34AM Cst. Ryder provided the Accused with his 10b) rights. When asked if he would like to speak with a lawyer he indicated “yes”. The Accused was allowed to put on proper clothing and at 9:48 was driven to Westwinds. They arrived at 10:26AM and at 10:30 he placed into a holding cell. 37. At 11:10 AM the accused was formally re-arrested with new charges based on the search warrants by Cst. Chernecki and at 11:13 he indicated again that he would like to speak with a lawyer.

He was given water on request and at 11:59 he was told that once other warrants were completed that he could use a phone. At 1:39pm he was given a phone. III. Testimony [ 4 ] Cst. Brad MacLean was the primary officer for the investigation that forms the subject-matter of these reasons. It was a 4- month investigation. His role was to direct the investigation, control the speed and flow of the investigation, and make investigative decisions concerning this matter. There were a number of police officers involved in this investigation including Cst. Lena Chernecki and Cst.

Simion Da Silva-Spence. [ 5 ] The “targets” of the investigation included Mr. Hussein. Mr. Hussein was tracked to the Springbank Property. [ 6 ] Cst. Chernecki was the affiant in the information to obtain a search warrant which she swore on May 12, 2014 (the “ITO”). Cst. MacLean received the signed warrants on May 12, 2014.

Based on the ITO, the justice of the peace issued 6 search warrants, involving the following locations and items: • […] 40 ST SE (the “40 th Street Property”) • 2004 Nissan Maxima BKX[…] • 1997 White Dodge caravan: BLN[…] (the “White Van”) • the Springbank Property • 2013 Ford Edge Black BLF[...] (the “Ford Edge”) • Altima K[…] Black (the “Altima”) [ 7 ] As the primary investigator, Cst. MacLean would set up an operational plan for execution of the warrants. One aspect of his operational plan involved dealing with persons who officers might arrest during the execution of the warrants.

When executing the search warrants, the CPS Tactical Unit would assist in effecting entry into the residences and other uniformed CPS officers would be present to take control of the locations and items to be searched to ensure the continuity of those locations and items. As well, a uniformed CPS officer would take control of any individuals they arrested as part of this investigation, and transport them to CPS Headquarters, otherwise known as Westwinds. It was at Westwinds that Cst. Chernecki would ensure continuity of the arrested individuals. Those individuals would be held until Cst.

MacLean arrived at Westwinds. [ 8 ] In this investigation, Cst. MacLean was concerned about the arrested persons having access to telephones before the warrants were fully-executed, as this was a gang investigation involving drugs and weapons. As well, he had concerns about the destruction of evidence, and the risk to which the officers executing the warrants might be exposed if the arrested persons were able to contact other targets. Thus, he wanted their telephone calls limited until the warrants were fully-executed. This was a common procedure in these types of investigations. He made Cst.

Chernecki aware of his concerns. He specifically did not instruct Cst. Chernecki to dial the telephone, ensure there was a lawyer on the line, and then pass the telephone to the accused person.

[ 9 ] Part of investigation involved arresting Mr. Hussein and another individual, AW. [ 10 ] Cst. MacLean was present when the warrant for the Springbank Property was being executed. The CPS Tactical Unit entered the premises at 9:20 AM and arrested Mr. Hussein. Mr. Hussein was “ Chartered and cautioned” at 9:33 AM. Cst. MacLean does not recall whether Mr. Hussein advised the arresting officer that he wanted to contact counsel, although the Agreed Statement indicated that he did. Mr. Hussein was the only person located at that residence. Mr.

Hussein was cooperative and made no attempts to use a telephone or destroy evidence. As well, no one tried to come into the Springbank Property. By this time, the warrant on the Springbank Property had been executed and it was secure. [ 11 ] Cst. MacLean then went to the parkade of the Springbank Property and located the Ford Edge. He observed a pistol in the back of that vehicle. Earlier in the day, he observed the Altima parked in visitor parking. There were no occupants in either the Ford Edge or the Altima.

Both were now under surveillance, so they were secure; the warrants on those vehicles were executed. [ 12 ] At 9:54 AM, Cst. MacLean left the Springbank Property and headed towards the 40 th Street Property. Although his notes did not indicate when he arrived at the 40 th Street Property, he estimates that it took him about thirty minutes to arrive there. He was not the first person to arrive at the 40 th Street Property. Cst. Kelly and Cst. Perkins were already there. Cst. MacLean is unsure when the search of the 40 th Street Property began, or when it was completed. He did speak with Csts.

Kelly and Perkins, who advised that there were 3 people occupying the 40 th Street Property, and that they were in police custody. Beyond that, Cst. MacLean could not tell this Court if the 40 th Street Property was secured by the time he arrived, or at some later time, as he was called away from that location. [ 13 ] One of the warrants involved the White Van. It was associated with the Springbank Property, but Cst. MacLean saw it parked in northeast Calgary at 6:15 AM on the day on which the warrants were to be executed. He was on his way to the Springbank Property.

He told SFU to conduct surveillance on the White Van. Later that morning, he learned that the White Van was moving. He was notified of this and directed uniformed CPS officers to conduct a traffic stop of the White Van. Cst. MacLean was advised of the traffic stop at 11:30 AM, so he left the 40 th Street Property to deal with the White Van. He arrived at the location where the White Van had been stopped. AW was driving the White Van, and the uniformed CPS officers had arrested him. The White Van was secured. Cst.

MacLean dealt with this matter directly, as other GET team members were busy executing the other warrants. Cst. MacLean searched the White Van. He completed his search at 12:29 PM, and then proceeded to conduct an interview of AW, as AW smelled strongly of marijuana. The interview ended at 1:00 PM. [ 14 ] After that, Cst. MacLean began travelling back to Westwinds to take continuity of Mr. Hussein. On his way to Westwinds, he stopped to get food for Mr. Hussein, as Mr. Hussein had been in police custody for about 4 hours. Mr. Hussein had not asked for food, but it was police policy to feed the accused person.

He arrived at Westwinds at 1:35 PM. On his arrival, he gave Mr. Hussein the food and then placed him into the telephone room so he could call a lawyer. This occurred at approximately 1:39 PM. [ 15 ] Cst. MacLean confirmed that by 12:29 PM, there was no longer the risk of destruction of evidence, but he did not contact Cst. Chernecki to advise her of this. Why? Cst. MacLean was still speaking with AW at this time, for the purpose of officer safety and in an effort to obtain evidence. He confirmed on cross-examination that he could have contacted Cst.

Chernecki at that time, but he did not because of his involvement with AW. [ 16 ] After Mr. Hussein used the telephone, he advised Cst. MacLean that he did speak with a lawyer and that he was satisfied. Cst. MacLean tried to obtain a statement from Mr. Hussein, but his lawyer told him not to say anything. Cst. MacLean obtained no statement from Mr. Hussein. [ 17 ] Cst. MacLean confirmed that all of the warrants had been executed by at least 11:59 AM. He did not, however, place a telephone call to Cst. Chernecki to advise her of this. [ 18 ] In May of 2014, Cst.

Lena Chernecki was a member of GET and was involved in the investigation involving Mr. Hussein. [ 19 ] Cst. Chernecki was the affiant who was seeking the search warrants. Accordingly, she had considerable knowledge of this investigation. [ 20 ] Cst. Chernecki first met Mr. Hussein at 11:10 AM at Westwinds. Her role was, among other things, to ensure that Mr. Hussein was provided his right to counsel. She confirmed his identification with him and at 11:13 AM, and provided him with a “ Charter and caution,” which included her advice that he was able to contact counsel.

He told her, at that time, that he wanted to speak with a lawyer. She was unaware, nor had she inquired of the arresting officer whether Mr. Hussein might have expressed his desire to contact counsel on his arrest at 9:33 AM. She then told Mr. Hussein that there were other warrants that were being executed and once they were executed, she would permit him to contact a lawyer. She testified that she did not want Mr.

Hussein to telephone others who might compromise the execution of the warrants by destroying evidence or otherwise putting the safety of the officers executing the warrants at risk. [ 21 ] Her instructions were to wait until Cst. MacLean advised her that the CPS officers had executed the warrants. At that point, she would allow Mr. Hussein to use the telephone to contact a lawyer. She was not able to advise this Court of the various times that the warrants were executed. Again, she was simply awaiting the call from Cst. MacLean.

She took no proactive steps to determine the status of the execution of the warrants. [ 22 ] At the time she “ Chartered and cautioned” Mr. Hussein, she knew from a telephone conversation with officers at the scene where the warrants were being executed, that the officers had seized certain contraband and a firearm. She could not identify the officer with whom she had spoken. [ 23 ] At 11:59 AM, Cst. Chernecki checked on Mr. Hussein. He told her that he wanted a glass of water, so she accommodated him. She explained what was going on and he, again, told her that he wanted to use the telephone.

She did not allow this, as she had not

yet heard from Cst. MacLean. [ 24 ] The telephone call for which she was waiting never came. Cst. Chernecki met with Cst. MacLean at Westwinds at 1:39 PM. She did not know when he arrived at Westwinds. At that time, Cst. MacLean gave her the “all-clear,” so she allowed Mr. Hussein to use the telephone. She still did not know whether all the warrants had been executed, but she relied on Cst. MacLean’s instructions to allow Mr. Hussein to make his call. [ 25 ] Cst.

Chernecki confirmed the following during cross-examination: • she made no telephone calls to anyone to determine the status of the execution of the warrants, • she had no notes or indication as to when the execution of the warrants had concluded, • she received no telephone calls which advised her that random people were showing up at the search locations, • she was unaware of any safety concerns or any other dangerous situations expressed by officers executing the warrants, • she had no information that all weapons and contraband had already been seized, • she had no information about whether each scene that was subject to a warrant was under control, • she had no information concerning the loss or destruction of evidence, • she had no information that anyone’s safety would be compromised if Mr.

Hussein were allowed to use the telephone, and • she did not contact Cst. Maclean or other officers to tell them that their execution of the warrants was taking too long. [ 26 ] As well, Cst. Chernecki confirmed that Mr. Hussein was cooperative with her and she received no information that he was uncooperative at any time during or after his arrest. He did not attempt to use a telephone after the police approached him. [ 27 ] She described the telephone room in which she placed Mr. Hussein as a small room, that had a table on which there was a telephone, telephone books and telephone numbers.

The door was solid, although it did have a “peep hole” in it. Whatever was occurring in the telephone room was videotaped, but there was no audio of the sounds emanating from that room. The accused person would be placed in the telephone room by themselves. The accused person was allowed to dial the telephone by themselves, and the police could not see the numbers they were dialing. At the end of the telephone call, the accused person would let them know when they were finished in that room. [ 28 ] Once Mr. Hussein had made his telephone call, Cst. Chernecki transferred continuity of Mr. Hussein to Cst.

MacLean. [ 29 ] Cst. Chernecki confirmed during cross-examination that her practice was to allow the accused person to dial the telephone while in the telephone room. Her practice was not to dial the telephone, ensure there was a lawyer on the line and then hand the telephone to the accused person. With the videotape of the room, she or another officer could watch the accused person to ensure that they did not make any other telephone calls while they were sitting in the telephone room. [ 30 ] During the entire time that Mr. Hussein was in her custody, he made no statement to her. IV.

Discussion [ 31 ] There are 3 issues involved in this voir dire . They involve standing, the facial validity of the ITO which relates to the Charter s 8 argument, and Mr. Hussein’s right to counsel. This Court will discuss each of these issues separately. The Crown has conceded that the CPS breached Mr. Hussein’s rights under Charter s 10(b). Thus, this Court will discuss whether it will exclude the evidence under Charter s 24(2). A. Standing [ 32 ] The Crown concedes that Mr. Hussein has standing with respect to the Altima. Because no evidence was recovered from the Springbank Property, Mr.

Hussein takes no issue as to whether he has standing with respect to that property. The only issue before this Court is whether Mr. Hussein has standing with respect to the Ford Edge. [ 33 ] The Crown argues that the only evidence before this Court concerning the Ford Edge is the fact that Mr. Hussein was not the registered owner of that vehicle. However, that is not the only evidence before this Court. The ITO contains information that relates to the Ford Edge. In the ITO para 4.b., Cst.

Chernecki describes one of the places where she feels the CPS will find, among other things, a controlled substance: A motor vehicle, a black 2013 Ford Edge with Alberta license plate BLF[…] (2013 black Ford Edge) owned by [AA] and used by Mohamed Hussein [emphasis added]. [ 34 ] The ITO paras 15 and 16, then provide an overview of the following observations extracted from the covert video camera that the CPS installed in the parkade of the Springbank Property, that was fixed on parking space numbered 55: 15.

The scope of the investigation then shifted to Hussein who was observed on multiple occasions engaging in activity consistent with drug trafficking while operating rental vehicles. Throughout surveillance, members of GET identified Hussein regularly using a variety

of rental vehicles and accessing [AA's] 2013 black Ford Edge parked in parking stall 55 of the underground parkade located at [the Springbank Property] . 16. In April 2014, covert cameras were installed to monitor the activity at [the Springbank Property] and the 2013 black Ford Edge parked in the underground parkade.

Review of the footage obtained showed persons attending and leaving the unit with duffle bags and Hussein accessing the 2013 Ford Edge for very brief periods of time indicating that the vehicle is being used as a storage location. [Emphasis added]. [ 35 ] Through computer searches, the CPS confirmed that AA was the registered owner of the Ford Edge and that the registered address was the Springbank Property: ITO para 22.b. [ 36 ] On March 1, 2014, Mr. Hussein was observed driving the Ford Edge: ITO para 43.e. [ 37 ] ITO para 61 transcribes the findings of Cst.

MacLean after he reviewed the surveillance footage of the covert camera that was trained on parking stall 55. It provides as follows: 61. I read the notes of Cst. Maclean dated April 22, 2014, and May 12, 2014, and learned: a. Cst. Maclean reviewed surveillance footage of a covert camera focused on stall 55 of the underground parkade located at [Springbank Property] between April 10, 2014, and April 17, 2014. The following is a

summary of what was observed: i. On April 17, 2014, at 4:17 pm, Hussein and an unknown black female got into the 2013 black Ford Edge parked in stall 55 and left the area. The 2013 black Ford Edge returned to stall 55 at 6:10 pm. Hussein and the unknown black female exited the vehicle. ii. On April 17, 2014, at 9:02 pm, the blue Jeep Cherokee parked behind the 2013 black Ford Edge. Hussein exited the blue Jeep Cherokee and accessed the driver's side of the 2013 black Ford Edge. He sat in the vehicle for one minute and then exited toe [ sic ] 2013 black Ford Edge and returned to the blue Jeep Cherokee and left; b.

Cst. Maclean reviewed the surveillance footage of a covert camera focused on stall 55 of the underground parkade located at [the Springbank Property] between May 8, 2014, and May 12, 2014, at 6:59 am. The following is a

summary of what was observed: i. On May 11, 2014, at 12:58 am, Hussein accessed the driver's door of the 2013 black Ford Edge and leaned in the vehicle. He then closed the door and got into the passenger door of a Nissan Altima. At 1:01 am, Hussein exited the Nissan Altima, guided it as it did a u- turn, accessed the 2013 black Ford Edge briefly before returning to the Nissan Altima and leaving; ii. On May 11, 2014, at 8:16 pm, Hussein exited [the unit of the Springbank Property]. At 8:19 pm, he accessed the 2013 black Ford Edge parked in the underground parkade.

Hussein then accessed he driver's side briefly before going to the trunk of the vehicle and removing a black satchel bag. Hussein then got into the driver's seat of the 2013 black Ford Edge for approximately 1 minute before exiting and returning to unit […]; iii. On May 11, 2014, at 9:09 pm, Hussein accessed the 2013 black Ford Edge carrying the black satchel and a white garbage bag. He placed the satchel into the trunk and then left carrying the white bag; iv. On May 11, 2014, at 10:51 pm, a dark grey Nissan Altima parked behind the 2013 black Ford Edge.

Hussein exited the Nissan Altima and accessed the trunk of the 2013 black Ford Edge where he removed the black satchel. He walked the satchel over to the Nissan Altima passenger door and leaned in the vehicle briefly before returning the satchel to the trunk of the 2013 black Ford Edge. At 10:52 pm, Hussein got back into the Nissan Altima and left. He was the lone occupant; [ 38 ] Interestingly, the Crown’s brief that it filed in response to Mr. Hussein’s Charter notice says the following: 40.

What becomes clear to the GET and the Affiant is that the Residence is connected to stall 55 in the parkade, and that the Applicant accesses the Ford Edge parked that stall. It is true that he doesn’t use the Ford Edge that often, but it was parked in stall 55 on March 11 and the Applicant drove it that same day. Covert camera footage also showed the Edge being operated by the Applicant on April 17. Finally, on May 11 the Applicant is seen accessing the Edge four times, including when he transfers a satchel from the Altima to the Edge.

[39] The reason why this issue has some importance in the case at bar emanates from the Supreme Court of Canada’s decision inCanada (Director of Investigation & Research, Combines Investigation Branch) v Southam Inc, (SCC), [1984] 2 SCR145, 33 Alta LR (2d) 193 (SCC) [Southam, cited to SCR], where the court said the following: The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.

This limitation on the rightguaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlementto a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’sinterest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order toadvance its goals, notably those of law enforcement. Southam at 159-60 [emphasis in original]. [40] Thus, if Mr.

Hussein does not have a reasonable expectation of the privacy in the Ford Edge, he has no standing to argue thatthe CPS has breached his Charter s 8 rights. Mr. Hussein must demonstrate that the police infringed his personal right to privacy: R vNolet, 2010 SCC 24, [2010] 1 SCR 851 at 870-71 [Nolet]. If he is successful, the Crown bears the onus of establishing that its interests,in the circumstances, were superior to those of Mr.

Hussein: R v Edwards (1994), (ON CA), 91 CCC (3d) 123, 34 CR(4th) 113 (Ont CA) [Edwards, cited to CCC] at 135 aff’d (SCC), [1996] 1 SCR 128, 104 CCC (3d) 136 [EdwardsSCC, cited to SCR]. [41] The Supreme Court of Canada provides the framework within which courts must analyze an alleged breach of an accused’sCharter s 8 rights, when it said the following: A review of the recent decisions of this Court and those of U.S.

Supreme Court, which I find convincing and properly applicable to thesituation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure againstunreasonable search or seizure can be derived. In my view, they may be summarized in the following manner: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. ... 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. ... 3.

The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. ... 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy.Second, if he has such an expectation, was the search by the police conducted reasonably. ... 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. ... 6.

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. 7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determinewhether the search was conducted in a reasonable manner.

Edwards SCC at 145-50 [Citations excluded]. [42] When undertaking this analysis, a court must look to the “totality of the circumstances,” and not simply examine certainfactors in making its determination: R v Belnavis, (SCC), [1997] 3 SCR 341 at para 22, 118 CCC (3d) 405 [Belnavis]. [43] In R v Nesbeth, 2008 ONCA 579, 238 CCC (3d) 567 at para 22 [Nesbeth], leave denied, [2009] 1 SCR xi (note), RosenbergJA said that when a court is considering the “totality of the circumstances” that the Supreme Court of Canada provided in Edwards SCC,“[n]ot all factors will be applicable in any particular case and some will be more important than others.” [44] When examining the totality of the circumstances, the Supreme Court of Canada in Edwards SCC said that this Court mayconsider the place of the search as one of the factors.

In particular, it said that this Court may consider possession and control of theproperty or place, its ownership and the ability to regulate access. The Supreme Court of Canada said that the following comments ofFinlayson JA were “apposite” to this issue: When an accused ... asserts at his trial that there has been a breach of his s. 8 Charter right to be secure from unreasonable search orseizure, he is asserting a particular right to privacy which may, on occasion, be unrelated to any recognized proprietary or possessoryright.

Section 8 of the Charter is directed to the protection of the security of the person, not the protection of his property, and it is theappellant’s personal exposure to the consequences of the search and seizure that gives him the right to challenge, not the search warrantitself, but the admission into evidence at his trial of the fact of the search and the account of what was seized. . . . This is not to say that property rights do not confer privacy rights in a given case. They obviously do. But the appellant must assert apersonal privacy right, whatever be the foundation of his assertion.

And, since this reasonable expectation of privacy is a Charterprotected right, the burden of providing an evidentiary basis for any violation rests with the appellant. Edwards SCC at 143-44. [45] Part of Finlayson JA’s quotation that the Supreme Court of Canada articulated in Edwards SCC said the following:

Section 8 guarantees a broad and general right to be secure from unreasonable search and seizure which at least protects a person’sentitlement to a reasonable expectation of privacy. Accordingly, s. 8 is available to confer standing on an accused person who had areasonable expectation of privacy in the premises where the seizure took place, even though he had no proprietary or possessory interestin the premises or in the articles seized. Edwards SCC at 143. [Emphasis added]. [46] In the case at bar, Mr. Hussein was not the registered owner of the Ford Edge.

The observations that were recovered from thecovert video camera indicate that he had access to the Ford Edge, and that no other person, during the time of the covert video camerasurveillance accessed the Ford Edge. As well, Mr. Hussein was the only person seen driving the Ford Edge. He placed and removeditems from the Ford Edge and the Ford Edge was associated with the Springbank Property, the place where Mr. Hussein was found onthe date that the warrants were executed. [47] Accordingly, this Court finds that Mr. Hussein has shown this Court that he had a reasonable expectation of privacy in theFord Edge.

Accordingly, he has standing to make the Charter s 8 argument in relation to it. B. Charter s 8 and the ITO [48] Before discussing the issues that are before this Court, it necessary to outline the foundational principles that will guide itsanalysis. Criminal Code, R.S., 1985, c. C-46 [Code] authorizes a justice of the peace or a provincial court judge (defined in Code s 2 as a“justice”) to issue a search warrant. Code s 487 is the provision that allows a justice to issue a search warrant. It provides as follows: 487.

(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in abuilding, receptacle or place: (

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have beencommitted;

(

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will revealthe whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament; (

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against theperson for which a person may be arrested without warrant; or (c.1) any offence-related property; may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer orenforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who isnamed in the warrant (

d) to search the building, receptacle or place for any such thing and to seize it; and (

e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to,the justice or some other justice for the same territorial division in accordance with

section 489.1. . . . [49] A search warrant, by its nature, allows the state to invade a person’s privacy, whether their home, a motor vehicle, or theirperson.

Thus, the Code and the courts must be vigilant to ensure that search warrants are not issued on mere suspicion or allow the stateto undertake a “fishing expedition”: R v Araujo, 2000 SCC 65, [2000] 2 SCR 992 at para 29; R v Kokesch, (SCC),[1990] 3 SCR 3 at 29-30, (1990), 121 NR 161. [50] Because, in many cases, a peace officer is seeking a search warrant to search for evidence, the peace officer will appearbefore, or submit the information to obtain a search warrant, to a justice ex parte.

In Hover v Metropolitan Life Insurance Co, 1999ABCA 123 at para 23, 237 AR 30, Fruman JA said the following: In an ex parte proceeding, in order to enable the court to make an informed decision, counsel has an obligation to make full, fair andcandid disclosure of all non-confidential, non-privileged material facts known to the lawyer, including those which are adverse to hisposition. [Emphasis added, citations excluded]. [51] In the criminal law context, Lebel J. said in Araujo: ... The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts ...

So long as theaffidavit meets the requisite legal norm, there is no need for it to be as lengthy as à la recherche du temps perdu, as lively as the KamaSutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge inorder that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally,an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigationover a number of months and even of years.

Araujo at para 46 [emphasis added, citations excluded]. [52] Araujo was a wiretap case. However, courts of appeal across this country have applied the principle that the Araujo courtprovides to search warrant cases. See e.g. R v Ling, 2009 BCCA 70, 266 BCAC 281 [Ling] at paras 32-33, leave refused [2009] SCCANo 165, where the court provides a survey of those cases.

The Supreme Court of Canada also applied this approach to search warrants inR v Morelli, 2010 SCC 8, [2010] 1 SCR 253 [Morelli] at paras 44, 58-60. [53] The Supreme Court of Canada in R v Garofoli, (SCC), [1990] 2 SCR 1421, 116 NR 241 [Garofoli, cited toSCR] provides the standard of review a trial judge applies when evaluating the decision of the justice to issue a search warrant: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. Graofoli at 1452.

See also R v Caissey, 2007 ABCA 380, 422 AR 208 [Caissey] at para 15, aff’d 2008 SCC 65, [2008] 3 SCR 451; R v Carrier (1996),1996 ABCA 145 , 181 AR 284, 36 CRR (2d) 310 (CA) [Carrier] at para 51. [54] In the case at bar, the question is whether Cst. Chernecki provided enough information in the ITO, such that the justice of thepeace who issued the warrants should have issued them.

If the justice should not have issued the warrants, this Court must find that thesubsequent search violated Charter s 8: Morelli at para. 97; R v Pastro (1988), (SK CA), 66 Sask R 241, 39 CRR 108(CA) [Pastro, cited to Sask R] at para 69. The fact that the CPS found the drugs, weapons, and ammunition that form the subject-matterof the charges against Mr. Hussein does not make the warrants and the search pursuant to the warrants Charter-compliant. Dickson Jsaid the following in Southam: ... Such a post facto analysis would, however, be seriously at odds with the purpose of [Charter] s. 8.

That purpose is, as I have said, toprotect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches

before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view,can only be accomplished by a system of prior authorization, not one of subsequent validation. Southam at 160 [emphasis in original]. In other words, the ends do not justify the means. [55] The peace officer could provide information that they have obtained through their own investigations and of which the peaceofficer has direct knowledge. Often, however, the peace officer provides information that is gleaned from other sources. In fact, theSupreme Court of Canada contemplated this type of information in Garofoli when it said the following: (

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

a) the degree of detail of the “tip”; (

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

c) indicia of the informer’s reliability, such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

Garofoli at 1456-57. [56] The Garofoli statement essentially expands on an earlier approach to informant tips that the Supreme Court of Canada used inR v Debot, (SCC), [1989] 2 SCR 1140, 102 NR 161 [Debot, cited to SCR], when it said the following: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a“tip” originating from a source outside the police, was that source credible?

Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, Iconcur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. Debot at 1168. [57] The second factor that Debot identifies suggests that any “tip” from a police officer would be credible.

However, courts mustsubject even police information to a rigorous analysis to ensure its reliability; especially when a police officer is simply conveyinginformation obtained from an outside non-police source. In other words, information which is “double hearsay” is not, ipso facto,unreliable, provided that information can withstand a rigorous analysis. [58] In the ITO, Cst. Chernecki deposes that she received information from confidential informants, and the conditions on whichthose confidential informants provided information.

She provides specific information that the confidential informants provided to theCPS in relation to the POI. The confidential informants and the information they supplied to the CPS meet the tests set forth in Garofoliand Debot. The information is detailed and the confidential informants identified the POI. Cst. Chernecki confirmed some of theinformation that the confidential informants provided on different computer databases. While conducting surveillance on the POI, theinterest of the CPS conducting surveillance on the POI turned to Mr.

Hussein. [59] The case law provides us with certain principles that might assist this Court in conducting a Garofoli / Debot analysis: 1. It is the justice who makes the determination as to whether there are reasonable grounds to issue the search warrant: Pastro at para 58. 2. The peace officer must not simply swear that they have reasonable grounds for believing the alleged facts presented in the informationto obtain a search warrant.

The peace officer must present facts on which the justice can judicially satisfy themself that reliable groundsexist for the peace officer’s belief and that the information is true and accurate: Pastro at para 64; R v Debot (1986), (ON CA), 17 OAC 141, 30 CCC (3d) 207 (Ont CA) at para 17, aff’d (SCC), [1989] 2 SCR 1140, 102 NR 161. Suchfacts might include: (

a) from where or whom the peace officer obtained the information: ibid; Ling at paras 42, 44; (

b) the informant’s reliability and veracity, and complimentary information that will allow the justice to test the informant’s reliability.That includes both corroborating evidence independently collected by peace officers, and whether that informant has previously provenreliable: Caissey at para 22, (2008); R v Koppang, 2004 ABCA 334 [Koppang] at para 7; Debot at para 17; (

c) the mechanisms and foundation on which the informant based their information: Pastro at para 64. In particular, the justice will wantto know whether the informant obtained the information through personal observation, rumour, or second-hand: ibid; Debot at para 17; (

d) the means by which the informant came into possession of the information: Pastro at para 64; (

e) the “age” of the information: Caissey at para 25; R v Hosie (1996), (ON CA), 107 CCC (3d) 385, (1996), 91 OAC

281 (Ont CA) [Hosie, cited to CCC] at 392; (

f) the amount of detail that the informant provides, particularly where details help test whether the alleged facts are rumour or gossip:Caissey at paras 24-25; Hosie at 392; Debot at para 17; and (

g) whether the informant has a criminal record and the nature of the that record: R v Sutherland (2000), (ON CA),52 OR (3d) 27 at para 11, 139 OAC 53 (CA). 3. The most reliable basis on which the justice might confirm the information that the informant provides is where a peace officer canswear as to further investigation undertaken by that peace officer or others which confirms the informant’s data: Hosie at 392; Caissey atpara 25; Koppang at para 7; Debot at 1168. 4.

The peace officer who provides the information to obtain a search warrant must attribute the source, if any, from which theinformation was received. Otherwise, the opening words of the usual information to obtain a search warrant where the deponent statesthat they have “personal knowledge” is meaningless: Hosie at 396-97. 5. The peace officer must think about the statements being sworn. The habitual and careless use of “boilerplate” language, without aproper understanding of its meaning, application and effect, may be misleading: Araujo at para 47; Hosie at 398-99. 6.

Full and frank disclosure of facts requires disclosure of both those facts that favour the granting of the search warrant and thoseagainst: Morelli at para 58; Ling at para 38. 7. The peace officer seeking the search warrant should give some thought into obtaining an information to obtain a search warrant fromeach peace officer who has first-hand knowledge of the facts that would support the justice issuing the search warrant: Araujo at para 48-49. 8.

An information to obtain a search warrant may be misleading, without being intentionally misleading, and a Information deponentshould be sensitive to that possible effect: Morelli at para 59. [60] In addition to these criteria, it should be noted and emphasized that the courts do not require precision in the drafting of aninformation to obtain a search warrant, provided the imprecision does not lead to a misstatement or result in evidence that would bemisleading: Carrier at para 56. [61] The standard of review of the justice of the peace’s decision is that set forth in Garofoli.

What is the record that this Courtmust review when conducting its analysis?

This Court must remove the portions of the ITO that are questionable and then determine, inthe totality of the circumstances, whether what remains would have been sufficient for the justice of the peace to issue the warrants:Morelli at para 5; R v Cheng, 2010 BCCA 135 at para. 26, (2010), 285 BCAC 108, leave refused [2010] SCCA No. 213. [62] To be Charter-compliant, the minimum standard for authorizing a search and seizure, must be “reasonable and probablegrounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of thesearch”: Southam at 168. [63] Can one police officer rely on another police officer to arrive at reasonable grounds?

In R v Richter, (SKCA), [1994] 7 WWR 753, 120 Sask R 257 at para 5 (CA), the Saskatchewan Court of Appeal agreed with the trial judge’s approachwhich was as follows: A Justice of the Peace receiving such details could be expected to feel some confidence in the credibility of the police informant, ascould the police officer who based his reasonable grounds for belief upon these details.

I find that the Search Warrant is valid. [64] In R v Hillgardener, 2010 ABCA 80 at para 21, 252 CCC (3d) 486 [Hillgardener], the Alberta Court of Appeal said thefollowing: The trial judge did not say what followup investigation might have corroborated the credibility of what the tipster had told the officer.Nor did he relate the fact that the informer had been reliable on multiple occasions ... Hillgardener at para 21. [65] Later it said: ... The issue in this appeal is not whether the officer could have done more but whether the trial judge erred in law in applying the Debottest to what the officer knew and did.

Hillgardener at para 22. [66] The ITO says that Cst. Chernecki has reasonable grounds to believe that certain listed items will be located in the SpringbankProperty, the Altima, and the Ford Edge. It then provides Cst. Chernecki’s background, which includes the facts that she is a CPS officer,and is a member of GET.

At the time she swore to the contents of the ITO, she had obtained training in drug investigations and hadexperience in approximately fifty such investigations, using such things as covert surveillance and undercover techniques. [67] She attested to the fact that she had personal knowledge of the facts related to the subject investigation, and if she did not havesuch personal knowledge, she believed the information provided by others was true. Finally, she reviewed the notes of CPS officers andothers who had been involved in the investigation.

She provides a list of the individuals from whom she received information. [68] Cst. Chernecki outlines the computer databases that she accessed to obtain some of the information contained in the ITO, andexplains the content of those computer databases.

[ 69 ] In the ITO, Cst. Chernecki describes the surveillance reports that she examined, and, as well, confirms that she participated in some of the GET surveillance. [ 70 ] The surveillance of Mr. Hussein and his activities took place between February 11, 2014, and May 11, 2014. As well, covert video surveillance cameras were installed in the hallway of the Springbank Property, trained on the entrance door of the subject unit. Another covert video surveillance camera was installed in the parkade of the Springbank Property, trained on parking stall 55. [ 71 ] During the surveillance of Mr.

Hussein, he was seen driving a number of different vehicles, most of which were rented vehicles. In the ITO, Cst. Chernecki associated those vehicles with the Springbank Property, as they were parked there and Mr. Hussein would enter and exit the Springbank Property from and to those vehicles. The CPS officers who were conducting surveillance noted that Mr. Hussein attended residences and had individuals enter the vehicles he was driving for short periods of time. Ms.

Chernecki deposed, with respect to 2 of those locations, as follows: I believe that Hussein's four minute meeting at [...] 49 Street SE as described by Cst. Maclean in paragraph 29.e and 29.f is behavior consistent with drug trafficking. From my experience as a police officer, I have learned that individuals engaged in selling controlled substances will often meet buyers for very short periods of time.

Drug traffickers have been known to attend the residences of persons familiar to them for the purposes of selling drugs as a matter of convenience to their customers and to ensure the sale of the controlled substance occurs away from public view. I believe that Hussein's short meeting with an unknown male as described by Cst. Kelly in paragraph 3B.b is behavior consistent with drug trafficking. From my experience as a police officer, I have learned that individuals engaged in selling drugs will often meet with buyers for very short periods of time.

Vehicles are also often used for meets as the location can be controlled or changed to suit their safety concerns and conduct multiple sales quickly. Often drugs and/or money will be exchanged in vehicles for the purpose of ensuring the sale of controlled substances occurs away from the public view. ITO paras 30, 34. [ 72 ] As can been seen from the Agreed Statement, Mr. Hussein had a number of these different meetings. As well, people who were travelling with Mr. Hussein, similarly, had brief meetings with others. [ 73 ] Through Cst.

Chernecki’s further investigations, she determined that one individual with whom Mr. Hussein met had criminal histories that included violence and drugs. As well, 2 of the residences had histories of drugs and one of them had a history of firearms, although this history was about 4-months old. [ 74 ] There were several days of surveillance in which no drug-related activity was observed to be undertaken by Mr. Hussein. Cst. Chernecki openly revealed this fact in the ITO. [ 75 ] Cst. Chernecki reported on the results of the covert surveillance videos of the hallway as follows: 61.b. Cst.

Maclean reviewed surveillance footage of a covert camera focused on the front door of [the Springbank Property] for May 11, 2014. The following is a

summary of what was observed: i. On May 11, 2014, at 6:43 am, Hussein and an unknown black male were observed carrying a bag into [the Springbank Property], ii. On May 11, 2014, at 3:43 pm, an unknown black male appeared to knock on the door of [the Springbank Property] and was let in. One minute later, the male exited carrying a black satchel; iii. On May 11 2014, at 5:47 pm, an unknown black male entered [the Springbank Property] carrying a white bag; iv. On May 11, 2014, at 9:06 pm, Hussein exited [the Springbank Property] carrying a white garbage bag and a black satchel.

At 9:07 pm, Hussein returned to the unit carrying nothing in his hands; c. Between April 17, 2014, at 8:21 pm and May 9, 2014, at 3:16 am, no movement at [the Springbank Property] was noted. [ 76 ] Cst. Chernecki reported on the results of the covert surveillance videos of the parkade, to which this Court previously referred during its discussion of Mr. Hussein’s standing. [ 77 ] Cst. Chernecki deposed that Mr. Hussein was in Toronto from April 17, 2014 through May 9, 2014: ITO para 64. [ 78 ] Mr.

Hussein argues that his use of the Ford Edge and Altima were limited, and even when he did use them, the CPS made no observations consistent with drug activity. He also argues as follows: During the limited occasions when the police observed brief meetings between [Mr. Hussein] and other individuals, a. The police observed no phones; b. The police observed no exchanges; c. The police observed no one carrying items; d. The police observed no one attempting to conceal any Items;

e. The police conducted no investigation in relation to the suspected 'purchasers'; and f. At no time did the police observe the Applicant engage in a series of short meets in any one day, more typically seen during druginvestigations. [79] This might be so, but the importance of what is contained in the ITO is what the CPS officers did see, and, as importantly,how they interpreted what they saw.

Cory J said the following in R v Storrey, (SCC), [1990] 1 SCR 241 at 250-51, 53CCC (3d) 316, 75 CR (3d) 1 … It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest.Rather, it must be objectively established that those reasonable and probable grounds did in fact exist, that is to say, a reasonable person,standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest ... 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. [80] Cst.

Chernecki in the case at bar must not only subjectively believe that the transactions that she viewed while conductingsurveillance and those that her fellow officers reported to her involved drug trafficking. As well, the justice of the peace had to determinewhether a reasonable person, standing in the shoes of the police officer, would have reasonable and probable grounds to believe thatthose transactions involved drug trafficking. [81] The justice of the peace relied on an affidavit prepared by a CPS officer, who had experience in drug enforcement, and whorelied on the reports of other CPS officers.

This was not a situation where Cst. Chernecki relied on a confidential informant to obtaininformation concerning Mr. Hussein. Having reviewed the ITO in its entirety, and the basis on which the justice of the peace issued thewarrants, this Court is of the view that there was a credibly-based probability that contraband would be found in the locations identifiedin the ITO, and not merely a suspicion. [82] Accordingly, this Court finds that there has been no breach of Charter s 8. C. Charter s 10(b) [83] The Supreme Court of Canada summarized the contours of the Charter s 10(

b) right in R v Bartle, (SCC),[1994] 3 SCR 173 [Bartle] at 191-92, where Lamer CJC said the following: This Court has said on numerous occasions that s. 10(

b) of the Charter imposes the following duties on state authorities who arrest ordetain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legalaid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise theright (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [84] The Crown concedes that Mr. Hussein’s rights under Charter s 10(

b) were breached. In particular, it concedes that it breachedthe second requirement. It framed its concession as a “minor, technical breach,” but it is this Court’s view that it will determine whetherthe breach was minor and technical. The Crown does not concede either the first or third requirements, and Mr. Hussein does not seek hisremedy based on those requirements. Accordingly, this Court will analyze the effect of this breach when it discusses Charter s 24(2),below. D. Charter s. 24(2) 1. Introduction [85] Inasmuch as the Crown concedes that the CPS officers breached Mr. Hussein’s Charter s 10(

b) rights, this Court mustdetermine whether, pursuant to Charter s 24(2), it should exclude the evidence that they found. In other words, would the admission ofthe evidence bring the administration of justice into disrepute? [86] Charter s 24(2) provides as follows:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [87] To conduct this analysis, we must turn to the lines of inquiry that the Supreme Court of Canada provided in R v Grant, 2009SCC 32, [2009] 2 SCR 353 [Grant] .

It said the following: ...When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests ofthe accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of thecase on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry todetermine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute... Grant at para 71. [88] While this Court is undertaking its Charter s 24(2) analysis, it must be mindful of the fact that it is Mr.

Hussein’s burden toprove on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute: R vSandhu, 2011 ONCA 124 at para 42, quoting R v Sanelli, (SCC), [1990] 1 SCR 30 at 59, 65 DLR (4th) 240. a. Seriousness of the State Misconduct [89] The majority in R v Harrison, 2009 SCC 34, [2009] 2 SCR 494 [Harrison], said the following: ... The metaphor of a spectrum used in R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont.

C.A.), perDoherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor: Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard forCharter rights. ... What is important is the proper placement of the police conduct along that fault line, not the legal label attached to theconduct ... Harrison at para 23. [90] Similarly, in Grant, the court said: State conduct resulting in Charter violations varies in seriousness.

At one end of the spectrum, admission of evidence obtained throughinadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of thespectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect onthe public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

Grant at para 74. [91] Courts that have considered this aspect of the Grant analysis, describe the level of seriousness of state misconduct that wouldtend to support the exclusion of the evidence using the following: • wilful or reckless disregard for Charter rights: ibid; Harrison at para 24; • severe or deliberate: Grant at para 72; • significant carelessness: R v Dhillon, 2010 ONCA 582 at para 51, (2010), 270 OAC 107; • systemic or institutional abuse: Harrison at para 25; and • blatant or flagrant disregard for Charter rights: Grant at para 75; Harrison at para 27. [92] On the other hand, the court in Grant went on to say: ... “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However,ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith... Grant at para 75 [citations excluded.] [93] It might be worthwhile to repeat the evidence concerning Mr. Hussein’s Charter s 10(

b) rights. Mr. Hussein was arrestedshortly after the CPS Tactical Unit entered the Springbank Property. He was then “Chartered and cautioned” at 9:33 AM. Cst. Cherneckifirst met Mr. Hussein at 11:10 AM. At 11:13 AM, she provided him with her “Charter and caution,” which included her advice that hewas able to contact counsel. He told her, at that time, that he wanted to speak with a lawyer. This Court was presented with no evidenceas to whether Mr. Hussein might have expressed his desire to contact counsel on his arrest at 9:33AM, although the Agreed Statementdoes. Cst. Chernecki then told Mr.

Hussein about the other warrants that CPS officers were executing and once they were executed, shewould permit him to contact a lawyer. She did not want Mr. Hussein to telephone others who might compromise the execution of the

warrants by destroying evidence or otherwise putting the safety of the officers executing the warrants at risk. [94] She was going to await a telephone call from Cst. MacLean to advise her that the CPS officers had executed the warrants. Shenever received that call and she took no proactive steps to determine the status of the execution of the warrants. [95] At 11:59AM, Cst. Chernecki checked on Mr. Hussein. He told her that he wanted a glass of water, so she accommodated him.She explained what was going on and he, again, told her that he wanted to use the telephone.

She did not allow this, as she had not yetheard from Cst. MacLean. Cst. MacLean showed up at Westwinds at 1:39 PM, at which time Cst. Chernecki allowed Mr. Hussein to usethe telephone. [96] As the primary investigator, Cst. MacLean travelled to the various locations where the warrants were being executed. Fromhis testimony, it was clear to this Court that the various locations were secure and the warrants were being executed at all locations by the time he reached the 40th Street Residence, which was around 10:30 AM. To his knowledge, the White Van had not yet been securedand executed.

At 11:30 AM he was advised that the White Van was the subject of a traffic stop. He was not advised when the White Vanwas actually stopped. Cst. MacLean left the 40th Street Residence to deal with the White Van. He arrived at the location where theWhite Van had been stopped. AW was driving the White Van, and the uniformed CPS officers had arrested him. The White Van wassecured, as was AW. Cst. MacLean searched the White Van. He completed his search at 12:29 PM, and then proceeded to conduct aninterview of AW, as AW smelled strongly of marijuana. The interview ended at 1:00 PM. [97] After that, Cst.

MacLean began travelling back to Westwinds to take continuity of Mr. Hussein. On his way to Westwinds,purchased food for Mr. Hussein. Cst. MacLean arrived at Westwinds at 1:35 PM. [98] Mr. Hussein argues that the breach of his rights began at 9:33 AM. This Court disagrees. There were valid reasons for theCPS holding off in allowing Mr. Hussein to exercise his rights for the purposes of officer safety and protection of evidence. Thosereasons no longer existed once Cst. MacLean confirmed that the White Van and its sole occupant, AW, were secure.

That occurred sometime after 11:30, when he left the 40th Street Property and arrived at the location of the White Van, where he saw that AW had beenarrested. It was at point that Cst. MacLean should have contacted Cst. Chernecki. He did not. Thus, this Court finds that Mr. Hussein’srights were breached for between 1-hour and thirty-nine minutes and 2 hours and 9 minutes. [99] During the entire time that Mr.

Hussein was in police custody, no one attempted to extract a statement from him, or have himotherwise incriminate himself. [100] Because of the number of warrants that the CPS were executing, this Court finds that Mr. Hussein’s implementational rights tocontact counsel were justifiably suspended, as there were “exceptional circumstances”: Grant at para 75; R v Manninen, (SCC), [1987] 1 SCR 1233 at 1244; R v Strachan, (SCC), [1988] 2 SCR 980 at 998-99. [101] Cst. Chernecki was justified in waiting for the telephone call from Cst. MacLean, and this Court finds that her waiting was not abreach of Mr.

Hussein’s Charter s 10(

b) rights. If it was, it was only minor. Why? There were 6 warrants being executed, and it wouldnot be reasonable for her to be contacting Cst. MacLean constantly to try and determine whether the warrants had been executed. Onecan only imagine problems that police officers face when executing warrants, and she was required to respect the police officers whilethey were exercising their duties. [102] Cst. MacLean, however, did breach Mr. Hussein’s Charter s 10(

b) rights when he failed to telephone Cst. Chernecki themoment he arrived at the location of the White Van. However, this Court does not find that Cst. MacLean’s breach would fall on themore serious end of the spectrum. It was not wilful, blatant, deliberate, flagrant, or egregious. As well, there was no “consciousdetermination to take advantage of the accused before allowing him to speak to counsel”: R v Strachan, (SCC), [1988] 2SCR 980 at 1007-08. Finally, Cst. MacLean was not distracted by a different investigation or ignoring Mr. Hussein.

In fact, he was stillin the midst of this investigation. [103] As a result, Cst. MacLean’s breach would “minimally undermine public confidence in the rule of law.” b. Impact on Ms. Hussein’s Charter-Protected Rights [104] The second line of inquiry, as set out in Grant, requires this Court examine the Mr. Hussein’s Charter rights, and determine theimpact of any Charter violations on those rights. The more serious or intrusive the breach on his rights, the more likely that society willsee his Charter-protected rights as meaningless.

Society will direct courts to exclude such evidence. [105] In Bartle, Lamer CJC, for the majority, emphasized the importance of Charter s 10, when he said the following: 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. Bartle at 191. [106] This, perhaps, explains why courts have held that there need not be a causal connection between the evidence the police collect

and the breach (although this Court acknowledges that there must be a temporal connection). Of course, if there is a causal connection, such as when an accused person provides an incriminatory statement before being advised of or before being able to contact counsel, the seriousness of the Charter breach is exacerbated: Grant at para 122 . However, this causal connection is not a necessity, see e.g. Strachan at1000-02; R v Mian , 2014 SCC 54 , [2014] 2 SCR 689 [ Mian ] at para 83 .

But it might be a factor for the court to consider when assessing the impact of a breach on the accused person’s Charter -protected rights. In Mian Rothstein J for the court said the following: … [W]ith respect to non-bodily physical evidence, the trial judge found that the s. 10 Charter violations had little impact on Mr. Mian's privacy interest in the contents of his car, in part because of the lack of causal connection between the breach and the evidence. It was appropriate to consider the causal connection at this stage ( Grant , at para. 122 ).

In this context, it is difficult to see how the trial judge could be said to have overstated the impact of the breach on Mr. Mian's Charter -protected interests. I do not see any reason to disturb the trial judge's findings with respect to the second Grant factor. Mian at para 87 . [ 107 ] Recently, the Ontario Court of Appeal commented that the connection between the Charter breaches “may be casual, temporal, or contextual, or any combination of these three connections” R v Edwards (appeal by Pino ), 2016 ONCA 389 , 337 CCC (3d) 402, 28 CR (7 th ) 268 [ Pino ] at para 72 .

It went on to say the following: I take "contextual" … to mean pertaining to the surroundings or situation in which something happens. In this case, the something that happened is Ms. Pino's arrest. And the two s. 10(

b) breaches and the s. 8 breach surrounded her arrest or arose out of it. Indeed, the trial judge found that the s. 10(

b) breaches form "part of the context" in which the s. 8 breach occurred. Pino at para 74 . [ 108 ] In the case at bar, the contraband that the CPS discovered during their searches did not have a causal connection to the Charter s 10(

b) breach. It did, however, have a temporal connection inasmuch as the breach and the exercise of the warrants were relatively close in time and part of the same “transaction”: Pino at para 73 . As well, because the delay in allowing Mr. Hussein to consult counsel was tied to Cst. MacLean contacting Cst. Chernecki to advise her that the warrants had been executed, there is a contextual connection. [ 109 ] Given the importance of Mr. Hussein’s Charter -protected rights under Charter s 10(

b) as articulated in Bartle , and the temporal and contextual connection between the seized items and the Charter s 10(

b) breach, this would favour the exclusion of the evidence. c.

Society’s Interest in an Adjudication on the Merits [ 110 ] The third line of inquiry, as set out in Grant , requires this Court to determine whether the truth-seeking function of the criminal trial process is better served by admitting the evidence or excluding it, having regard to “society’s interest in the adjudication of the case on its merits.” It is at this stage that courts consider factors such as the reliability of the evidence and the importance of that evidence to the Crown’s case: Harrison at para. 33 . [ 111 ] The evidence in the case with which this Court is dealing is cannabis marijuana, cocaine, a loaded firearm, and ammunition.

There can be no doubt that society has an interest in having this matter adjudicated

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