R v Lam, 2016 ABQB 736

Court of Queen’s Bench of Alberta Citation: R v Lam, 2016 ABQB 736 Date: 20161223 Docket: 150002731Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Steven Van Lam Accused _______________________________________________________ Reasons for Decision on Voir Dire #1 of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is my ruling on a blended voir dire arising out of Mr. Lam’s applications under sections 8, 9 and 10 of the Charter . [ 2 ] Mr.

Lam was charged with possession of cocaine for the purposes of trafficking, possession of the proceeds of crime and possession of GHB arising out of his arrest on October 4, 2014 for possession of cocaine for the purposes of trafficking. [ 3 ] Mr. Lam argues that his arrest was unlawful and a breach of his

section 9 rights, as the arresting officer lacked reasonable and probable grounds to believe he had committed an offence. He argues that the searches of the vehicle he was arrested in incidental to his arrest were thus unlawful and breaches of his

section 8 rights. Mr. Lam argues that a search of the contents of a cell phone he was holding when he was arrested was unlawful, and was also a breach of his

section 8 rights. He further argues that his

section 10(

b) rights were violated when he was detained for more than nine hours after his arrest without being allowed to contact a lawyer. [ 4 ] As a result of these breaches, Mr. Lam seeks the exclusion of evidence seized as a result of the searches.

Background [ 5 ] As a result of information from a confidential informant, an investigation commenced into Mr. Lam’s activities. Constable Semotiuk was put in charge of the investigation as primary investigator. He testified that he has been with EPS for eleven years. At the relevant time, he was a member of the Drug and Gang unit, which investigated and gathered intelligence on organized crime and drug trafficking in Edmonton. [ 6 ] Constable Semotiuk estimated that at the time of Mr.

Lam’s arrest he had been involved in at least thirty drug investigations. [ 7 ] His team included Detective Perka, Constable Korobanik, Constable Mathewson and Sergeant Graham. Detective Perka had been told that Steven Van Lam was trafficking in cocaine and was using a white Ford F-150 to do so. A licence plate number was given by the informant. [ 8 ] Detective Perka did some checks on the information received from the confidential informant and learned that the white Ford F-150 was registered to Trang Do. He obtained an address of 7307 152C Avenue in Edmonton.

On checking title to that property, he learned that the property was owned by Trang Do and Steven Van Lam. Utility bills showed the same information. He believed that Steven Lam and Trang Do were in a relationship from this information. He also learned from searches that Steven Lam and Trang Do had children together. [ 9 ] This information was shared with Constable Semotiuk and the team. Detective Perka described his source as a reliable one, which meant to Constable Semotiuk that previous information had been verified or corroborated.

Constable Semotiuk had no personal knowledge of the source or his credibility. [ 10 ] Detective Perka did not testify, and the information provided about the source by Constable Semotiuk was entirely hearsay from Detective Perka. There was no information given by Detective Perka about the source, any further details about his reliability, or the currency of the information. [ 11 ] As a result of this information, Constable Semotiuk and the team decided to do surveillance. In the late afternoon on October 2, 2014, surveillance began at the 152C Avenue residence.

Out in front of it was the white Ford F-150. [ 12 ] At some stage during the surveillance, an Asian male was seen to get into a white Mitsubishi Lancer, registered to Trang Do. The team followed the Mitsubishi until sometime after 6:00 pm, when it was determined that the driver was not Mr. Lam. Surveillance on the Mitsubishi ended, and the team returned to the 153C Avenue residence. [ 13 ] Nothing of note occurred for the rest of the evening, and surveillance that day ended. Nothing on December 2, 2014 was observed to include Mr. Lam. [ 14 ] Surveillance continued in the late afternoon on October 3.

At 6:15 pm, an Asian male and a female were seen to get into a blue Kia Spectra. That vehicle too was registered to Trang Do. The team followed the Kia, and it returned to the 152C Avenue address at about 6:28 pm. The team was unsure if the male involved was Mr. Lam. [ 15 ] A male came to the Kia at about 9:47 pm, and left the area. The team could not identify the driver. The team followed. At a location on 117 Street and 138 Avenue, the Kia parked at the curb. A female got into the passenger seat for a minute or so and then walked away.

This sequence of events lasted about two minutes. [ 16 ] Constable Semotiuk believed from his experience doing drug investigations that the activity observed was consistent with a drug transaction. [ 17 ] The team then followed the Kia to 105 Street and 81 Avenue, where it parked in a parking lot. A man got inside the Kia and a couple of minutes later, the man left and went into a nearby bar. That sequence of events lasted about four minutes. [ 18 ] Constable Semotiuk believed that this too was consistent with a drug transaction. [ 19 ] The team followed the Kia to 66 Avenue and 94 Street, where it parked.

The team lost sight of the Kia for fifteen to thirty seconds, and when it was observed again, a man was seen to leave the Kia and enter a nearby house. [ 20 ] Constable Semotiuk believed that this activity was consistent with a drug transaction. [ 21 ] The team then followed the Kia back to 152C Avenue. At about 11:30 pm, an Asian male left the vehicle and entered the house. Surveillance for the day ended. [ 22 ] During the surveillance on October 3, the team suspected that it was Mr. Lam who was driving the Kia based on brief incomplete sightings, but no positive identification was made.

Constable Semotiuk testified that he “strongly suspected” that it was Mr. Lam who had been driving. [ 23 ] The team decided to continue surveillance the next day, and arrived at the 152C Avenue address shortly after 5:00 pm. Shortly after that, the Kia arrived and parked on the south curb. Mr. Lam was identified by Constable Korobanik as the driver. [ 24 ] At 5:46 pm, Constable Korobanik saw Mr. Lam get into the Kia and drive off. The team followed it to 19 Street and 147 Avenue.

There, Constable Mathewson saw an unknown male leave suite 44 at an apartment complex near that address and get into the passenger seat of the Kia. The male left the passenger seat two minutes later and went back into suite 44. [ 25 ] At that stage, Constable Semotiuk believed that the observed activity was consistent with a drug transaction. That fit the

pattern of behaviour observed on May 3. He decided that Mr. Lam was arrestable for possession for the purposes of trafficking because Mr. Lam had been positively identified that evening as the driver. [ 26 ] The Kia was followed to Millwoods Road and 64 Street where it parked in front of a restaurant. Constable Semotiuk believed that the Kia was there to participate in another drug transaction. Constable Semotiuk and Sergeant Graham approached the Kia and arrested Mr.

Lam for possession of cocaine for the purposes of trafficking. [ 27 ] Constable Semotiuk described his grounds for arrest as being a combination of the reliable confidential informant information that had been provided by Detective Perka, the observations connecting Mr. Lam to the 7307 152C Avenue address and the Kia, the observations of the activities involving the Kia on October 3 where Mr. Lam was suspected of being the driver but not actually observed, the three interactions on October 3 consistent with drug trafficking, the positive identification of Mr.

Lam getting into the Kia on October 4, the interaction consistent with a drug transaction and Mr. Lam driving to another location where Constable Semotiuk believed that Mr. Lam was going to conduct another drug transaction. [ 28 ] Following the arrest, Mr. Lam was Charter ed and cautioned at 6:55 pm. He indicated that he wanted to speak to a lawyer. He was taken to EPS headquarters in downtown Edmonton, arriving there at 7:36 pm. There, Mr.

Lam was strip-searched. $215 in cash was found in his wallet, which Constable Semotiuk believed to be the proceeds of crime. [ 29 ] Constable Mathewson was tasked with searching the Kia. He testified that he conducted a preliminary search of the Kia at the arrest site on Millwoods Road. The Kia was “clean”, although Constable Mathewson believed, from what he had seen that day, that there must be some evidence of drug trafficking in the Kia. He had it towed to the EPS impound lot.

Once there, he arranged to have a service dog inspect it, but before the service dog arrived, Constable Mathewson located two canisters magnetically attached to the underside of the driver’s and passenger’s seat. [ 30 ] The canisters contained what Constable Mathewson believed to be 37 spitballs (individually wrapped pieces of cocaine base). When eventually tested, the contents of the canisters were confirmed to be cocaine. [ 31 ] The vehicle search at the site of the arrest and at the police impound lot were done without a search warrant.

Constable Mathewson testified that he conducted these searches incidental to Mr. Lam’s arrest for possession of cocaine for the purposes of trafficking to find evidence of that crime. He did not address his mind to the potential need for a search warrant. [ 32 ] The initial search at the arrest site took place around 6:41 pm. The search at the police impound lot was completed at about 8:36 pm. [ 33 ] Mr.

Lam was not allowed to contact a lawyer until 4:30 am on October 4, more than nine hours after he had said he wanted to contact a lawyer. [ 34 ] Constable Semotiuk explained the delay as being related to the decision to seek a search warrant for the residence at 153C Avenue. Another member of the team had been tasked with preparing the Information to Obtain. Constable Semotiuk did not know who else might be present in the home and was concerned that evidence might be lost, and did not want Mr.

Lam to have telephone access before the search warrant was executed. [ 35 ] Constable Semotiuk testified that a weapon had been found in the car and observed that drug traffickers often carry weapons to protect themselves from being ripped off by others. He said he was concerned for officer safety if Mr. Lam were allowed to alert people inside the residence that police were coming. [ 36 ] The search warrant was approved at 1:53 am on October 5, but took some time to execute. Once the warrant had been executed and the residence searched, Mr.

Lam was allowed to call a lawyer at 4:30 am. [ 37 ] Constable Semotiuk testified that between the arrest and allowing Mr. Lam to contact a lawyer, there was no attempt to take a statement from Mr. Lam. His observations were that Mr. Lam was not under the influence of drugs, and was cooperative. [ 38 ] On cross-examination, Constable Semotiuk said that he felt the interactions on October 3 were drug transactions because of his experience with drug investigations, the short duration of the meetings, the time of day and the fact that these interactions took place in public areas.

All of these were, in his experience, consistent with drug transactions. [ 39 ] He confirmed that he saw no exchanges, no one clenching anything in their fists, no movements in the vehicle, and did not see the people leaving the Kia holding anything or with something weighing down their pockets. [ 40 ] Constable Semotiuk also confirmed that none of the people seen to have entered and left the Kia on October 3 or 4 were questioned and nothing is known about them.

He confirmed that while following the Kia, there was no sense that the driver of the Kia was “heat checking” (driving in a fashion to try to detect if it was being followed or observed). [ 41 ] Constable Korobanik testified next. He is an eleven-year veteran with EPS. At the time of the arrest here, he had been with the gang and drug unit for two years. He had been involved with over 100 drug investigations. [ 42 ] He testified as to his involvement with surveillance on October 2, 3 and 4. He was the officer who positively identified Mr. Lam as the driver of the Kia on October 4.

On cross-examination, he confirmed that the driver of the Mitsubishi on October 2 was not Mr. Lam, based on the photograph of Mr. Lam provided to the team. The October 2 driver was a young looking Asian male. [ 43 ] Constable Mathewson testified as to his involvement in the surveillance as well as with the search of the Kia. He testified that at the time of the arrest, he had been involved in hundreds of drug investigations. He observed the interactions on October 3, and was of the opinion that they were all consistent with drug transactions, based on his experience with drug investigations.

[ 44 ] During the search of the Kia at the arrest site, starting shortly after 6:41 pm, Constable Mathewson was looking for drugs, money, weapons and evidence against Mr. Lam. His initial search located nothing. He had the Kia towed to the police yard, arriving there at 8:16 pm. There, he searched it again before the police dog arrived, and located the canisters and the individually-wrapped cocaine pieces therein. These canisters were found by him at 8:36 pm. [ 45 ] He was involved in the search of an apartment on 144 Avenue, where he found nothing of interest.

He then assisted with the search of the 153C Avenue house, and after that, searched the white F-150 truck, where he found a collapsible baton in the driver’s door compartment. That was about 3:55 am on October 5. [ 46 ] Sergeant Graham testified about his involvement in the surveillance, Mr. Lam’s arrest and his role in handling the exhibits seized. He described his experience and stated that at the time of Mr.

Lam’s arrest he had been involved in hundreds of drug investigations. [ 47 ] Sergeant Graham saw the interactions on October 3 involving the Kia, and believed these all to be consistent with drug transactions. [ 48 ] When Mr. Lam was arrested, Sergeant Graham noticed that Mr. Lam was holding a cell phone. Sergeant Graham seized the cell phone and checked the text messages. He may have looked at the photographs saved in the cell phone. He did not recall if he made any other searches of the cell phone or looked through any of the applications on it other than text messages.

His notes described only several text message conversations. [ 49 ] Two of the conversations were consistent with communications about drug transactions. The most recent text message was from a “Sam J” referencing meeting at Millwoods Bo’diddly’s (near where the Kia was parked). Sergeant Graham continued the text conversation with Sam J and saw someone approaching the Kia. When Sergeant Graham texted Sam J to “come over to the blue car” and “turn around”, the person did so.

When Sergeant Graham identified himself, the man was unwilling to cooperate. [ 50 ] Sergeant Graham was involved in the searches, and testified that a quantity of GHB was found in the apartment on 144 Avenue, along with a hydraulic press, money counter, baggies, a dinner plate with cocaine residue on it and a digital scale. Documents tying Mr. Lam to the apartment were also found. He testified that he was able to gain access to the apartment using a key seized from Mr. Lam. [ 51 ] When the 152C Avenue residence was searched, a total of nearly $30,000 in cash was found, as well as a taser.

The cocaine found by Constable Mathewson was weighed and totaled 17 grams. Reasonable and probable grounds for arrest [ 52 ]

Section 495 of the Criminal Code requires that a peace officer making a warrantless arrest have reasonable and probable grounds to do so. Mr. Lam argues that while Constable Semotiuk objectively believed he had reasonable and probable grounds to arrest Mr. Lam, those grounds do not stand up to objective scrutiny. [ 53 ] Mr. Lam cites a number of cases in support of his arguments: R v Lim , 2015 ABQB 273 ; R v Truong , [2014] AJ No 1519 (QB) ; R v NO , 2009 ABCA 75 ; R v Rahmani-Shirazi , 2008 ABQB 145 ; R v Ottenbreit , 2016 ABPC 77 ; and R v Cook , 2014 ABPC 70 . [ 54 ] Mr.

Kerber for the Crown responds with a number of cases: R v Nicholson , 2010 ABQB 379 ; R v Nicholson , 2011 ABCA 218 ; R v Gooz , 2011 ABPC 248 ; R v Phong , 2013 ABCA 63 ; R v Parchment , 2007 BCCA 326 ; R v Caravaggio , 2012 ONCA 248 ; and R v Richards , 2016 ABQB 176 . [ 55 ] From a review of these and other cases, for my analysis here, the Alberta Court of Appeal cases are the most significant ones to consider.

As stated by Greckol J (as she then was) in R v Truong , the assessment of whether reasonable and probable grounds exist for arrest is highly factual, and depends more on the circumstances of each case rather than comparisons with other cases (at para 27).

[56] That being said, the Court of Appeal has in some ways placed bookends on the subject in Alberta with R v NO at one end andR v Nicholson and R v Phong at the other, at least in circumstances involving observed interactions believed by police to be drugtransactions and information from confidential informants. [57] In NO, the Court of Appeal concluded that the accused’s

section 9 rights had been breached. The arresting officer hadsubjective grounds, but viewed objectively, he did not. There, shortly after midnight, the arresting officer saw the accused stop in front ofan apartment building. He entered the building and had a brief hand-to-hand exchange with a man who had been sitting on the stairsinside the apartment building. The man inside disappeared into the building; the other man returned to his car. [58] The arresting officer’s grounds were that he had received complaints from residents about drug transactions occurring in theneighbourhood.

With his existing knowledge about the neighbourhood, the complaints about drug transactions from neighbours, the timeof night and what he observed, the officer concluded that he had witnessed a drug transaction. [59] The Court of Appeal held the detention to be unlawful. [60] At the other end of the argument, in R v Nicholson, the accused was put under surveillance after two tips were received abouta man named Josh selling drugs in Okotoks. Surveillance observed five encounters involving a vehicle owned and operated by theaccused.

When being followed by the police, the accused did what police described as a “heat check” manoeuver. When the vehiclestopped in a parking lot, and police observed what they believed to be another drug transaction, the accused was arrested. [61] The Court held at paragraphs 15 and 16: [15] The legality of a search incident to arrest is derived from the legality of the arrest: R v Stillman, (SCC), [1997]1 SCR 607 at para 27, 113 CCC (3d) 321.

The person instructing the arrest must subjectively believe that there are reasonable grounds tomake the arrest and those grounds must be objectively reasonable: R v Debot, (SCC), [1989] 2 SCR 1140, 52 CCC (3d)193. [16] The trial judge noted that Constable Soetaert testified that he believed the accused was engaged in drug trafficking and instructeda uniformed officer to arrest him.

The trial judge referred at paragraphs 41 and 42 of his Reasons for Judgment to seven instances ofevidence which gave rise to that conclusion (the tips from two confidential informants, the five exchanges with other vehicles on April 1,2008 and the exchange with the black Acura on April 17, 2008) in concluding that Constable Soetaert had reasonable and probablegrounds for the arrest.

While the trial judge did not use the word “objectively reasonable”, these seven instances can logically beinterpreted as meeting the objective component of the test. [62] In R v Phung, the Court of Appeal set out the tests in this area of the law at paragraphs 7 to 11: 7 For a search incidental to an arrest, the arrest itself must be lawful: R. v. Stillman, (SCC), [1997] 1 SCR 607 atpara 27, 113 CCC (3d) 321. This requires reasonable and probable grounds: s. 495(1)(

a) of the Criminal Code. That raises a question oflaw as to the overall effect of the facts found by the trial judge: R. v. Shepherd, 2009 SCC 35 at para 20, [2009] 2 SCR 527. This courtdoes not sit to second guess specific fact determinations at trial B such as good faith or honest belief B unless they are infected withpalpable and overriding error. 8 This Court has discussed the characteristics of reasonable and probable grounds in R. v. Biccum, 2012 ABCA 80 at para 10, 522A.R. 310; R. v. Nicholson, 2011 ABCA 218 at para. 14, 510 A.R. 308, leave denied, [2011] SCCA No 394 (QL); R. v.

Mehari, 2011ABCA 67 at paras 13-14, 499 A.R. 161; R. v. Loewen, 2010 ABCA 255 at para. 6, 490 A.R. 72, aff'd 2011 SCC 21, [2011] 2 S.C.R.167; R. v. Harding, 2010 ABCA 180 at paras 12-13, 482 A.R. 262; R. v. Abdo, 2009 ABCA 340 at para 5, 464 A.R. 147 and R. v. Dill,2009 ABCA 332 at para 4, 464 A.R. 92. The furrows of that area of law have been thoroughly plowed here. 9 The arresting officer must 1) subjectively have reasonable and probable grounds to make the arrest and 2) those grounds must bejustifiable from an objective point of view: R. v. Storrey, (SCC), [1990] 1 SCR 241 at 250-251, 53 CCC (3d) 316.

Thetrial judge found subjective belief by MacKenzie. She also found his grounds were objectively reasonable. 10 The existence of objectively reasonable grounds for arrest requires that a Court consider whether a reasonable person would findreasonable and probable grounds for arrest: Storrey at 251. However, the reasonable person is “in the shoes” of the police officer, andcan take into account the officer's training and experience: R. v. Rajaratnam, 2006 ABCA 333 at para 25, 397 AR 126; Biccum at para21; R. v. Lawes, 2007 ONCA 10 at para 4, 2007 CarswellOnt 56; R. v.

MacKenzie, 2011 SKCA 64 at para 27, [2011] 12 WWR 102,reserved (January 22, 2013) [2011] SCCA No. 359 (QL); R. v. Wilson, 2012 BCCA 517 at paras 18-44, 2012 CarswellBC 4009. 11 As for what “reasonable grounds” itself means, the standard was first described in Hunter v. Southam, (SCC),[1984] 2 SCR 145, 14 CCC (3d) 97 at 114-115 as “the point where credibly-based probability replaces suspicion”. It has since beencharacterized in terms of “reasonable probability”: R. v.

Debot, (SCC), [1989] 2 SCR 1140 at 1166, 52 CCC (3d) 193.This is a standard higher than a reasonable suspicion but less than a prima facie case: R. v. Shinkewski, 2012 SKCA 63 at para 13,[2012] 9 WWR 674. Reasonable suspicion, by contrast, exists where there is “a constellation of objectively discernible facts which givethe detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”: R. v.Simpson (1993), (ON CA), 12 OR (3d) 182 at 202 (CA), cited in R. v. Jacques, (SCC), [1996] 3SCR 312 at para 24, 139 DLR (4th) 223 and R. v.

Mann, 2004 SCC 52 at para 27, [2004] 3 SCR 59. [63] At paragraph 14, the Court contrasted the circumstances before it with those in NO, and noted that NO did not involve aninformant. Nor did Rahmani-Shirazi, also relied on by Mr. Lam. [64] The Court of Appeal likened the case to R v Nicholson, and approved R v Parchment from the British Columbia Court ofAppeal and R v Caravaggio from the Ontario Court of Appeal. [65] Two recent cases in Queen’s Bench have considered similar circumstances.

[ 66 ] In Truong , decided by Greckol J (as she then was), Mr. Truong was arrested and charged with possession for the purposes of trafficking. The arresting officer was an experienced drug investigator. He had received information from another officer that Mr. Truong was a drug trafficker, operating a black Toyota truck and was moving ounces of cocaine. The arresting officer was familiar with Mr. Truong through general criminal intelligence reports generated within EPS. [ 67 ] Surveillance on Mr. Truong began. The arresting officer saw Mr. Truong park on a street. Another vehicle parked directly behind it.

The driver of the other vehicle walked towards Mr. Truong’s vehicle, got in briefly and left carrying a Holt Renfrew gift bag. The arresting officer believed that the bag contained cocaine and arrested Mr. Truong. [ 68 ] On cross-examination, the officer confirmed that the two drivers were driving normally and had not been seen doing “heat check” manoeuvers. [ 69 ] Greckol J concluded that the arrest was unlawful. She gave little weight to the information provided to the arresting officer by his colleague, noting that the source had a criminal record and was vague.

No notes were made of the information from the colleague. As for the officer’s own knowledge of Mr. Truong, there was nothing specific in that knowledge or in the intelligence gathered by EPS that could be characterized as “nefarious”. [ 70 ] Greckol J considered R v Phung as well as R v NO . She concluded at para 27- 30: 27 ...Though this case is close or difficult, in my view, the evidence does not quite meet the standard required by the jurisprudence. I draw this conclusion because a major reason relied upon by Sergeant Lewis to support his grounds was the information of the informant.

However, Sergeant Lewis could not testify with sufficient certainty as to the age of the information that was given to him by Detective Berg. I do not know how recent the information was considering Truong's alleged drug activities. It could have been early August or weeks or months prior to this event. People do change their lives. If the police are to rely on informant information to support reasonable and probable grounds for arrest, it should be sufficiently precise to show reliability. 28 Secondly, we are told the informant had a criminal record, that he did not have a record for perjury.

I do not know whether there are previous convictions for deceit-related offences such as fraud, theft, obstruction of justice, and so on. This, too, goes to the reliability of the source information. Sergeant Lewis also relied upon general intelligence information that he and other EPS officers had accumulated, but no specific incidents of alleged criminal activity were given. So all that I am left with is that members of the EPS at that time thought Truong was a drug trafficker.

Sergeant Lewis subjectively believed he had the grounds, but there is very little upon which to base an objective determination. 29 Finally, with respect to exchange of gift bags, I heard anecdotal evidence that drug dealers sometimes use gift bags, but it would not be uncommon for anyone in society to exchange such bags, though I acknowledge the circumstance of the exchange are extremely suspicious. However, I refer back to the passage I read from the decision of R. v.

N.O. which I think is a similar type of circumstance. 30 I am not satisfied on a balance of probabilities that the totality of circumstances that Sergeant Lewis relied upon to justify the arrest and search meet the objective standard of reasonable grounds to justify that arrest and search. The accused’s rights guaranteed by

Section 8 and 9 of the Charter have been breached. Since this is an unlawful arrest, it follows that the search of the vehicles incident to arrest cannot be justified on reasonable and probable grounds for the same reasons. [ 71 ] In R v Lim , the accused was arrested by an experienced drug investigator after he had been seen getting into the passenger side of another vehicle, leaving that vehicle shortly after carrying a cardboard packing box. He looked around, as if to check to see if he was being watched. He was arrested shortly after he drove away. Police had received a report that Mr.

Lim was a dial-a-doper, although that information was more than 18 months old. Police had also seen Mr. Lim’s vehicle near where a known drug dealer lived, and was seen with that drug dealer on a previous occasion. [ 72 ] Erb J concluded that the arrest was based on what the RCMP hoped to find in the cardboard box, and held that there were insufficient reasonable and probable grounds to arrest Mr. Lim. Analysis [ 73 ] Viewed through these cases, I am faced with weak confidential informant information.

No information was provided as to the source, the reliability of the source or the currency of the information that Mr. Lam was trafficking in cocaine. Constable Semotiuk believed that the source was reliable, and that it was current information, but no bases for these beliefs were articulated. [ 74 ] It is notable that the information came from a detective in the gang and drug team and was not entirely anonymous.

The team, led by Constable Semotiuk, accepted the information as reliable enough to begin surveillance. [ 75 ] The source information was to some extent verified, as the white Ford F-150 was associated to Mr. Lam’s address and was seen there during surveillance. [ 76 ] Mr. Gill ably argues that any corroboration of the source information fails because the F-150 was never seen involved in any suspicious activity, nor was Mr. Lam ever seen driving it. [ 77 ] He also challenges the relevance of the activities of the blue Kia on October 3, as there was no identification of Mr.

Lam as being the driver. [ 78 ] As for the one interaction observed on October 4 that involved Mr. Lam, Mr. Gill says that one ambiguous interaction together with unconfirmed source information is simply not enough to constitute objectively reasonable and probable grounds.

[ 79 ] Mr. Lam does not challenge the subjective beliefs of Constable Semotiuk, and I confirm that I accept Constable Semotiuk’s evidence on that point. [ 80 ] There is no doubt that this case falls into a challenging range. Just as police officers have to make judgment calls in their line of work, so do trial judges. [ 81 ] In making my finding on reasonable and probable grounds, I am mindful that the onus is on Mr. Lam to prove on a balance of probabilities that there was a Charter breach; namely, that Constable Semotiuk did not have reasonable and probable grounds when he arrested Mr.

Lam. [ 82 ] I also note the test for analyzing reasonable and probable grounds, as articulated by the Court of Appeal in Phung at paragraph 11 : Reasonable probability is a standard higher than reasonable suspicion but less than a prima facie case. [ 83 ] My task is to determine if on an objective basis Constable Semotiuk had only reasonable suspicion: the constellation of objectively discernible facts which gave him reasonable cause to suspect that the person is criminally implicated in the activity under investigation.

Or had the constellation of objectively discernible facts moved to reasonable probability? [ 84 ] Reliance on informant information starts with R v Greffe , 1990 1 SCR 775 and was considered in Phung . None of the cases say that uncorroborated informant information cannot be considered; weight is in my view a sliding scale.

The less corroboration, the less information available about the informant and his or her reliability, the less details about how and why the informant knows of the suspected activities, the less weight to be given. [ 85 ] When viewing the entire constellation of objectively discernible facts, the judge must be alive to the issue of the weight to be given to this, and any other, factor. [ 86 ] Here, the informant information is relevant and should be considered, but must be given less weight because of the very limited knowledge of Constable Semotiuk. [ 87 ] I disagree with Mr.

Gill’s characterization of the significance of the white Ford F-150. He argues that the lack of involvement by the F-150 weakens the informant information and the fact that it remained stationary is a factor that weighs against giving weight to the informant information and the surveillance of October 3. [ 88 ] In my view, the F-150 is relevant, as it clearly ties the informant information to Mr. Lam and his residence. The fact that the F - 150 was not used by Mr. Lam between October 2 and 4 is curious, but does not mean that observations of other vehicles tied to Mr.

Lam and his residence are not relevant. [ 89 ] There were three vehicles associated to the residence owned partly by Mr. Lam and Trang Do. All were registered to Trang Do. The Mitsubishi was driven by another Asian male associated with the residence. No suspicious activities were noted concerning it or the driver. Suspicious activities were noted concerning the Kia. While police suspected that Mr. Lam was the operator on October 3, they did not confirm that.

Nevertheless, they observed three interactions that day, which the three experienced drug investigators on the team, including Constable Semotiuk, characterized as being consistent with drug transactions. [ 90 ] The next day, Mr. Lam was positively linked to the Kia. When followed, they observed an activity essentially the same as the three interactions observed the night before. Mr. Kerber for the Crown characterized this as a marriage of the factors. [ 91 ] I might describe it myself as the constellation of factors coming together. With weak informant information, observations of a vehicle associated with Mr.

Lam’s address having interactions consistent with the informant information – drug transactions – and then Mr. Lam being identified as the driver of the Kia and involving himself in a nearly identical interaction, Constable Semotiuk considered that his reasonable suspicions had been converted into reasonable and probable grounds for arrest. [ 92 ] I agree, on an objective basis. None of the factors by themselves would be sufficient here. Nor would any two of them. Observing interactions as described on October 3 and 4, without more, would not be more than highly suspicious.

And weak informant information with what was seen on October 4 would be almost identical to the circumstances in Truong and Lim . But adding weak informant information to the mix, or adding the October 3 observations to the mix, when viewed through the eyes of experienced drug investigators, meets the threshold test for arrest. [ 93 ] It is the eyes of someone with their experience, background and knowledge through which objective reasonableness is to be tested. No doubt such a person’s experience gives them heightened awareness of things that to an untrained eye might be entirely innocuous.

But it would be inappropriate to discount their experience, especially when they are conducting surveillance on someone on whom they have information that he is engaging in a certain type of unlawful behaviour. To them, location, time of day, manner of driving and other things become more relevant than they otherwise might appear to someone whose radar has not been activated. [ 94 ] Mr. Gill did an excellent job probing areas of weakness, and casting doubt by reason of factors such as the absence of heat checks and the potential that the observed interactions were innocuous.

But in the end, it is not reasonable doubt that matters in the analysis; it is whether reasonable probability exists. [ 95 ] Here, when viewing the interactions through the eyes of a trained drug investigator, his belief that he had observed drug transactions was more likely than not reasonable. That passes the objective reasonable and probable grounds test. In the result, Mr. Lam has failed to demonstrate on a balance of probabilities that his

section 9 rights were violated, or that the police did not have the necessary basis to arrest him under s 495 of the Criminal Code . I therefore find the arrest lawful.

Search incidental to arrest [ 96 ] As I have found the arrest lawful, police were entitled to conduct reasonable searches incidental to the arrest. Certainly Constable Mathewson’s vehicle search at the site of the arrest was reasonable and clearly incidental to arrest. [ 97 ] No law was cited suggesting that search of a vehicle for evidence relevant to the subject matter of the arrest could only be conducted at the scene of the arrest, or could only be conducted in one operation. [ 98 ] Mr. Lam objects to the second search of the vehicle in the police impound lot, and says it was a warrantless search, and is presumptively unlawful and a violation of his

section 8 rights. [ 99 ] Here, the facts satisfy me that the search of the vehicle was a continuous operation, conducted initially at the site of the arrest and continued where it could be done with greater care and using more resources such as light and a sniffer dog. The search was conducted by the same officer with no delay. He searched the vehicle at the site of the arrest, and then continued the search himself as soon as it arrived at the police lot.

The entire operation took approximately two hours. [ 100 ] The search was in my view a continuous search initiated by an officer involved in the surveillance of Mr. Lam and his arrest; it was reasonably conducted and the time involved in the search keeps the search activities connected temporally to the arrest.

This was a legitimate search incidental to arrest. [ 101 ] Even if a search warrant might have been obtained, and there were no exigent reasons to complete the search as there were no officer safety concerns or evidence destruction concerns with the vehicle, the failure to obtain a search warrant (which in my view was not necessary) would be a minor Charter breach and would not result in the exclusion of the evidence found in it in any event. [ 102 ] The search of the Kia was therefore lawful, both at the site of the arrest and at the police impound lot. 10(

b) breach [ 103 ] To the Crown’s credit, no attempt was made to justify the over nine-hour delay in providing Mr. Lam with his Charter - protected right to counsel and the police obligation to facilitate that without unreasonable delay. [ 104 ] The delay was unreasonable and unjustified. Indeed, I was not impressed with Constable Semotiuk’s attempt to justify the delay on the basis of the baton found during the execution of the search warrant. The baton was found just before 4 am, after the house and the apartment had been searched. It was found in the F-150 and not the Kia.

Any connection between the baton and Mr. Lam’s arrest or weapon-related fears concerning a search of his residence was fabrication. [ 105 ] No exigent circumstances existed. The mindset of the officers was that the residence was occupied by Mr. Lam and his family. No one else had been seen during surveillance. The house was easily observed. Routinely withholding access to counsel so that search warrants can be executed is unacceptable and unlawful.

What appears to underlie concerns is a belief by some police officers that counsel will tip off a client’s associates once a recently arrested person has contacted his lawyer. [ 106 ] I know of no objective basis for this concern, other than stereotypical distrust of lawyers by police. It is not difficult for police to ensure that telephone contact is with a lawyer or Legal Aid, and no one else. [ 107 ] In my view, the deliberate withholding of a recently arrested person’s right to contact a lawyer is egregious. The longer the delay the worse it is. Here, nine hours of delay constitutes a serious Charter breach.

That is compounded by the deliberate nature of it and the complete absence of any objectively reasonable purpose. [ 108 ] Mr. Gill argues that the consequences under s 24(

s) should be the exclusion of all evidence seized, including the drugs found in the Kia. He cites R v Lim , where indeed all items seized were excluded. [ 109 ] However, in that case, the arrest itself was unlawful so exclusion essentially followed from that, and not the s 10(

b) breach. [ 110 ] There is no causal connection between the s 10(

b) breach and the search of the Kia. I do not think the balance between the public interest in adjudication and respecting the accused’s Charter protected rights is served by excluding evidence not connected with the

section 10(

b) breach. That evidence was found and would have been found in any event. [ 111 ] I acknowledge that the law no longer requires that there be a causal connection between the Charter breach and the evidence sought to be excluded. Exclusion of such evidence may occur in exceptional circumstances. I do not view the circumstances here to be so exceptional as to warrant exclusion of evidence that would have been found regardless of the Charter breach. [ 112 ] I do agree, however, that there is a temporal connection between the 10(

b) breach and the search warrant that was used to justify the search of the residence, the apartment and the F-150. While those searches too were likely inevitable and would have occurred whether or not Mr. Lam had timely access to counsel, it is not inappropriate to deny admission into evidence the things that were located while Mr. Lam was kept incommunicado so the police could perfect and act on a search warrant. [ 113 ] I do exclude items located at the apartment, the residence, and in the F-150. Cell phone

[ 114 ] The cell phone search was conducted on the scene of the arrest, and incidental to the arrest. Sergeant Graham was an honest and forthright witness. He appreciated at the time of the search that there were issues concerning the search of cell phones and electronic devices.

R v Fearon , 2014 SCC 77 , had not yet been decided by the Supreme Court of Canada, but a decision is expected on the subject imminently. [ 115 ] The main challenge to the admissibility of the evidence as to what Sergeant Graham saw on the cell phone and what he did with it is that he did not take careful notes as to what applications he searched through, as required by Fearon . He did take accurate notes of the text messages relevant to the investigation. [ 116 ] There is no evidence that Sergeant Graham went further into the cell phone than he described in his evidence.

He had no memory of looking at saved photos, and made no notes of that, but testified that his standard practice was to look at text messages and at photographs to look for evidence of drug trafficking activities. [ 117 ] Sergeant Graham was not shown to be incredible on cross-examination, and I do not think his failure to take detailed notes as to the messages he created and received from Sam J while pretending to be Mr.

Lam is problematic. [ 118 ] In hindsight, it may be problematic that Sergeant Graham made no notes or reports of things he did not do, such as look through other applications, but I do not think that note-taking requires notes of things not done or not seen. [ 119 ] Thus, I do not find the search or use of the cell phone to be problematic. Mr.

Lam has not proven a Charter breach on a balance of probabilities, so Sergeant Graham’s evidence as to the text messages he observed and what he did concerning Sam J is admissible in the trial proper, for what it is worth on an evidentiary basis. [ 120 ] This is not a situation where the phone was torn apart, or was searched for evidence of other criminal activity. Strip search [ 121 ] While Mr. Gill argued that the strip search of Mr. Lam was unlawful, I agree with Mr. Kerber that the issue is not properly before me.

No Charter notice concerning that search was provided, and there was no evidence on the subject, other than that it occurred. While routine strip searches are problematic from a Charter point of view, they are not always unlawful and there is insufficient information for me to conclude that the search here was unlawful. [ 122 ] Nothing was found as a result of that search, such that there is no evidence to exclude even if the search was held to be unlawful. Conclusion [ 123 ] The arrest was lawful, as was the search of the vehicle.

The exhibits resulting from the search of the vehicle are properly in evidence. [ 124 ] The cell phone was not unlawfully searched, so the evidence concerning the text messages and communications with Sam J are admissible. [ 125 ] Mr. Lam was denied his s 10(

b) rights for a lengthy period of time. As a result, the items seized under the search warrant concerning his residence, the apartment and the F-150 are excluded. This breach may also be relevant to sentencing if Mr. Lam is ultimately convicted, pursuant to the principles in R v Nasogaluak , 2010 SCC 6 . [ 126 ] I am indebted to counsel for their very able and articulate arguments. This was indeed a close case, and required careful thought on my part. [ 127 ] As an endnote, I note the trial concluded on December 16, 2016. The analysis above was delivered in court on December 15.

I advised counsel then that they would have the full decision at the commencement of proceedings on December 16, and these reasons (unsigned) were given to counsel then. As at the time of signing this decision, the matter has been resolved. Heard on the 14 th day of December, 2016. Dated at the City of Edmonton, Alberta, this 23 rd day of December, 2016. Robert A. Graesser J.C.Q.B.A.

Appearances: Jonathan Kerber Public Prosecution Service of Canada for the Crown Rajpreet Gill Moustarah & Company for the Accused