R v Gilmour, 2017 ABQB 735

Court of Queen’s Bench of Alberta Citation: R v Gilmour, 2017 ABQB 735 Date: 20171201 Docket: 151363850Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Allison Veronica Gilmour Accused _______________________________________________________ Memorandum of Decision respecting a s. 8 Voir Dire of the Honourable Mr. Justice W.N.

Renke _______________________________________________________ [ 1 ] Allison Veronica Gilmour pleaded not guilty to 10 charges relating to trafficking in controlled substances, weapons offences, possession of a lock pick set, and possession of property derived from an indictable offence. [ 2 ] The Crown seeks to rely on certain evidence seized from Ms. Gilmour’s residence on September 23, 2015 pursuant to a search warrant granted under the Controlled Drugs and Substances Act . The evidence is described in the Crown’s Brief at paras 1 and 5- 13 (the Seized Evidence).

The Defence applied to exclude the Seized Evidence on the basis that the granting of the search warrant violated Ms. Gilmour’s rights protected under s. 8 of the Charter . Specifically, the Defence contended that the Information to Obtain a Search Warrant (the ITO) did not set out reasonable and probable grounds supporting the granting of the search warrant and the Seized Evidence must be excluded under s. 24(2) of the Charter. [ 3 ] The Defence challenged the facial validity of the ITO only. There was no application to cross-examine the affiant and no amplification of the ITO. [ 4 ] The ITO was sworn by Cst.

Kendall Kowalchuk, a member of the Edmonton Police Service, on September 23, 2015. Cst. Kowalchuk sought a warrant authorizing searches of Ms. Gilmour’s residence located in Enoch, Alberta and of a blue Honda Prelude vehicle. Cst. Kowalchuk stated that, among other things, methamphetamine, GHB, cash, and drug paraphernalia would be located in these places, providing evidence of possession for the purposes of trafficking contrary to s. 5(2) of the CDSA and possession of proceeds of crime

contrary to s. 355 of the Criminal Code . The focus of the ITO was Ms. Gilmour. She was the subject of the tip that commenced the investigation and she was the subject of surveillance and historical information set out in the ITO. Cst. Kowalchuk did state his belief that the Enoch residence was being used by Ms. Gilmour and Michael Daniel Reigate (more on him below) to store and traffic controlled substances (para 47). Cst. Kowalchuk, though, specified that he believed that a search of the residence would provide evidence to support charges against Ms. Gilmour (para 48). In para 49 of the ITO, Cst.

Kowalchuk requested a “no knock entrance” because Ms. Gilmour was bound by a firearms prohibition and because she associates with violent offenders, and also to preserve evidence in the premises to be searched. [ 5 ] I will consider governing principles, the sufficiency of the ITO - that is, whether it properly supported the granting of the search warrant - and whether, if the ITO was not constitutionally sufficient, the Seized Evidence must be excluded under s. 24(2) of the Charter . Table of Contents A. Principles . 3 1. Burden of Proof 3 2. Overall Test on Review .. 3 3. Reasonable and Probable Grounds . 4 4.

Totality of the Circumstances . 5 5. Drawing Inferences . 6 B. Sufficiency of the ITO .. 6 1. Confidential Informant 6 (

a) Age of Information . 6 (

b) Contents . 7 (

i) Offence . 7 (ii) Other Matters (Non-Offence Matters) 7 (

c) Sources of Information . 7 (

d) The Confidential Informant 7 (

i) Reliability . 7 (ii) Credibility . 8 (

e) Corroboration . 8 2. Reputation Evidence . 9 (

a) Criminal Record . 9 (

b) Associations . 9 3. Surveillance . 11 4. Traffic Stop . 12 C. Must the Seized Evidence be excluded under s. 24(2) of the Charter ? . 13 1. Society’s interest in the adjudication of the case on its merits . 14 2. Impact of the breach on the Charter -protected rights of the accused . 15 3. Seriousness of the Charter -infringing conduct 15 4. On balance, does s. 24(2) require the exclusion of the Seized Evidence? . 17 A. Principles [ 6 ]

Section 8 of the Charter (“Everyone has the right to be secure against unreasonable search or seizure”) requires that a search warrant be issued before a proposed search or seizure by an independent judicial officer based on a finding of credibly based probability

(or reasonable and probable grounds) that the sought-for evidence is present in the location to be searched: Hunter v Southam Inc, (SCC), [1984] 2 SCR 145 at 168; R v Morelli, 2010 SCC 8 at para 39. I have approached the issue of whether the ITOdisclosed reasonable and probable grounds for granting the search warrant with the following principles in mind: 1.

Burden of Proof [7] The accused bears the burden of demonstrating that the ITO is insufficient: Quebec (Attorney General) v Laroche,2002 SCC 72 at para. 68; Morelli at para. 131; R v Campbell, 2011 SCC 32 at para 14; R v Clow, 2012 ABQB 656, S Martin J, as shethen was, at para 15 (“A warrant issued by a competent issuing justice is presumptively valid and the onus is on the party challenging itto establish otherwise on a balance of probabilities”). 2.

Overall Test on Review [8] In Morelli, Justice Fish wrote as follows at para 40: [40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether therewas sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place. In R v Garofoli, (SCC), [1990] 2 SCR 1421 at 1452, Justice Sopinka stated: 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 …. See Campbell at para 14; R v Koppang, 2004 ABCA 334, leave app denied [2005] 1 SCR xi at para 4; Clow at paras 9, 10, 16 – 17; R vGore, 2017 ABQB 167, Graesser J at paras 9-10; R v Uppal, 2017 ABQB 373, Moreau J, as she then was, at para 54. 3.

Reasonable and Probable Grounds [9] Reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would befound at a specified time and place refers to a level of proof that is • less than proof beyond a reasonable doubt - that is, the guilt of the suspect is not the only reasonable inference based on theevidence; reasonable and probable grounds for belief do not exclude inferences that the suspect is innocent: Clow at para 13. • less than proof on a balance of probabilities - that is, the guilt of the suspect is not more likely than his or her innocence; reasonableand probable grounds to believe do not depend on a comparison of the respective weights of the inferences of guilt and innocence:Mugesera v Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 100, 2005 SCC 40 at 114.

In my opinion, both thereasonable grounds and proof on a balance of probabilities standards share a requirement that the requisite inferences be probable – i.e.,more than trivially likely and not unlikely. The reasonable grounds standard, though, does not involve a comparison of the requisiteprobabilities to the probabilities of other competing inferences. The balance of probabilities standard, in contrast, does involve thiscomparison. That is, the reasonable grounds standard does not require that the inferences sought be the most likely or the more likelyinferences arising from the evidence.

No particular degree of probability or likelihood is specified by the reasonable grounds standard.Probability, of course, may range from low to high. In my view, the degree of probability must be approached normatively.

The issue iswhether the inferences sought are sufficiently probable to justify State interference with reasonable expectations of privacy. • more than reasonable suspicion (and certainly more than mere suspicion) - that is, the evidence supports a reasonable likelihood,not only a possibility, that an offence has been committed and that evidence of that offence will be found as specified: Mugesera vCanada at 114; R v Kang-Brown, 2008 SCC 18 at para 75; R v Chehil, 2013 SCC 49 at para 27; R v Sanchez, 1994 CarswellOnt 97,, 93 CCC (3d) 357 (Gen.

Div), Hill J at paras 30-32 (CarswellOnt); Uppal at para 29. [10] In a word, reasonable and probable grounds to believe entail a finding of credibly-based probability, an inference with someappreciable or non-trivial likelihood based on the evidence that does not exclude other competing inferences: Hunter v Southam at 167-8; Sanchez at para 30 (CarswellOnt).

According to Justice Martin in Clow at para 90, [90] ….While certain conduct of the Accused may be open to various inferences, including innocence, it is sufficient if the issuingjustice reasonably relied upon one of those available inferences in finding reasonable and probable grounds to issue the warrant. [11] The belief, finding, or inference that it is probable that an offence has been committed and that evidence of that offence wouldbe found as specified must be based on “credible” evidence: the standard is one of credibly-based probability: Clow at para 10.Mugesera refers in para 114 to “compelling and credible” information.

Morelli and Aranjo refer to “reliable” evidence that mightreasonably be believed and to credible and reliable evidence. [12] The belief, finding, or inference is objective. The perspective is that of the reasonable person. More precisely, the perspectiveis that of the reasonable person “standing in the shoes of a police officer:” Sanchez at para 32 (CarswellOnt).

Police training andexperience may permit an appreciation of the significance of facts that persons without that training and experience would miss. [13] In R v Quilop, 2017 ABCA 70 at para 27, the Court of Appeal reminded reviewing judges not to degrade the reasonableprobability standard into the reasonable possibility standard:

[27] …. It is not enough to suspect that a targeted individual is engaged in criminal activity. A suspicion is no more than a feeling that anassumed set of facts might possibly obtain. Reviewing judges must not substitute the more demanding reasonable grounds standard withthe less onerous standard of reasonable suspicion. The evidence properly relied on must show a reasonable likelihood or probability that the suspect is or was engaged in the allegedcriminal activity and that evidence of that criminal activity is reasonably likely to be found at the place to be searched. 4.

Totality of the Circumstances [14] The determination of whether an ITO supports a belief on reasonable grounds that an offence has been committed and thatevidence of that offence would be found as specified must rely on an assessment of the totality of the circumstances disclosed in the ITO:R v Caissey, 2007 ABCA 380, affd [2008] 3 SCR 452 at para 18 (CA); Clow at para 18.

A piecemeal approach to factual allegationsmust be avoided, as Justice Martin instructed in Clow at para 19: [19] Ultimately, the reviewing judge will consider all evidence available to the issuing justice and engage in a contextual analysis of thewhole document. This means that the ITO is to be examined as a whole and not one piece of evidence at the time, because each piece ofevidence colours other pieces of evidence and a fuller picture emerges by considering all of the evidence together. See R. v. Lam, 2000BCSC 1820; R. v. Saunders, 2003 NLCA 63 , 2003 N.C.L.A 63, 232 Nfld. & P.E.I.R. 22, and R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 .... See also Clow at paras 20 – 22; R v Hatton, 2011 ABQB 242, Yamauchi J at para 92; Gore at para 14. 5. Drawing Inferences [15] Justice Martin confirmed in Clow at para 13 that “an authorizing judge is entitled to draw reasonable inferences frominformation presented in an ITO according to R. v.

Durling, 2006 NSCA 124, at paras. 27-28.” A reviewing judge should be entitled todraw inferences as well, as Justice Martin also noted in Clow at para 25: Whether information contained in the ITO meets the reasonable grounds standard, is to be approached by a practical, non-technical basisand justices are entitled to draw commonsense inferences from its contents. See R. v. Whitaker, 2008 BCCA 174, [2008] B.C.J.

No. 725at para. 42 (BCCA). [16] With these principles in mind, the question is whether the sources of evidence in the ITO permitted the learned Justice of thePeace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would befound at the specified place. B.

Sufficiency of the ITO [17] The reasonable and probable grounds analysis demands consideration of the elements of the ITO, without neglectingconsideration of the interaction and interconnection of these elements in their totality. [18] The ITO has four main elements – information from the Confidential Informant, reputation evidence respecting Ms. Gilmour,surveillance evidence respecting Ms. Gilmour, and the “traffic stop” evidence. [19] I note that there was undisputed evidence that Ms.

Gilmour was a tenant of the Enoch address (paras 22-24 of the ITO), andthat she was the registered owner of a blue Honda Prelude as well as a black Mazda coupe (para 21). 1. Confidential Informant [20] Cst. Kowalchuk deposed that he received information from a Confidential Informant (CI) in the summer of 2015. Theinformation was that Ms.

Gilmour “sells Meth at the kilogram level in Edmonton,” she “sells a lot of GHB”, and she “operates a darkblue Honda Prelude.” [21] Five aspects of information from a confidential informant are important – the age of the information, the content of theinformation (respecting both alleged offences and other matters), the sources of the information, the reliability and credibility of theinformant, and corroboration: see Gore at para 40 and Hatton at para 74.

These five aspects are elaborations of the canonical“compelling,” “credible,” and “corroborated” factors drawn from Justice Wilson’s decision in R v Debot, (SCC), [1989]2 SCR 1140 at 1168. (

a) Age of Information [22] The information was provided by the CI to Cst. Kowalchuk in the summer of 2015. While that does not precisely date theinformation, the ITO was sworn in September. The information would not have been more than about 4 months old at the time the ITOwas sworn. While the information was not fresh, neither was it significantly stale-dated. (

b) Contents (

i) Offence

[23] A more serious or significant concern is that descriptions of Ms. Gilmour’s criminal activity were “bare bones” descriptionsonly, amounting to mere or bare assertions or conclusory statements. The CI provided no detail, nothing of the when, where, or how ofthe alleged drug transactions. There were no details that might have been corroborated by independent investigation. See Quilop at paras11(1) and 29; Gore at para 24; Uppal at para 55. (ii) Other Matters (Non-Offence Matters) [24] The CI displayed no “deep knowledge” of Ms. Gilmour.

In contrast, see R v Piasecki, 2017 ABQB 192, Germain J at para 76.In this case, the CI reported only that Ms. Gilmour had a particular type of car. The CI stated only that she operated it, not that it wasused in drug transactions. This information was “generic.” Defence counsel pointed out a danger with the type of allegations made by theCI against Ms. Gilmour. The CI coupled easily obtainable and verifiable information about Ms. Gilmour’s car with unconnectedassertions of drug trafficking. (

c) Sources of Information [25] The CI’s sources of information were not specified. Paragraph 15 of the ITO stated that the information of the ConfidentialInformant “comes from personal knowledge of the event described,” unless otherwise noted. But “personal knowledge” meant that theconfidential informant personally witnessed the event, had the information disclosed through a conversation with a third party, oroverheard a conversation in which the information was disclosed.

The approach taken in the ITO embraced personal knowledge basedon personal observations as well as two types of hearsay, and did not exclude information sourced in mere rumour or gossip. I accept thattoo precise a recitation of the source of knowledge might put a CI in physical danger or might eliminate the operational value of the CI.However, there was no reference to these issues in the ITO and how the particular mode of generalization protected the CI. There shouldbe maximum disclosure of source consistent with the protection of the CI’s safety and operational value. See Quilop at para 11(1). (

d) The Confidential Informant [26] The reliability and credibility factors respecting the confidential informant go to the issue of whether the CI should bebelieved on his or her word or at least whether what he or she said supports reasonably probable conclusions. As Justice Graesser statedin Gore at para 34, “[t]his is an area that might best be described as a spectrum. The more trustworthy the informant, the more reliablehis or her information is likely to be.” (

i) Reliability [27] The ITO did not support a finding that the CI’s information was strongly reliable. Cst. Kowalchuk had known the CI for lessthan a year. Cst. Kowalchuk did state that the CI had “provided reliable, actionable information in the past, subsequently used twice inCDSA warrants to seize drugs.” Moreover, the CI “has provided information on other individuals involved in criminal activity,” and “hasbeen used as intelligence and has been corroborated through various investigations and techniques” (para 19). However, Cst.

Kowalchukdid not disclose whether any convictions or even any charges arose from the CI’s information. See Uppal at para 55. The reference to“various investigations and techniques” was too vague to be useful. [28] In terms of testing of the CI’s information, the CI was not a first-time untested source; but the evidence does not point toindependent or authoritative confirmation of the CI’s information. (ii) Credibility [29] Cst.

Kowalchuk stated that the CI “does not have any convictions for Fraud, Obstruct[ion of] Justice, Public Mischief orPerjury.” This recitation was more useful than a simple claim that the CI had no convictions that would cause an affiant “to doubt theauthenticity of the information provided” (Gore at para 18). Nevertheless, more complete criminal record information could have beenprovided, including whether the CI had any criminal record. See Uppal at para 55.

Protecting CI safety or operational value woulddemand that a criminal history not be so detailed that it would serve as identifying information. [30] The nature of the CI’s allegations, the lack of specification of the CI’s sources of information, and the inadequate informationabout the CI’s reliability and credibility entail that the CI’s information can be given little weight. As in Quilop at para 29, Given the frailties of this informant’s information, the focus must be on what the police actually observed or at least on additional independent information. (

e) Corroboration [31] The proper approach to corroboration of confidential informants was described by the Court of Appeal in Caissey at paras 23and 24: [23] The issue on review is whether there was some evidence that might reasonably be believed to support the issuance of the warrant,not whether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity. Informationof a crime itself being committed does not have to be confirmed: Koppang at para. 8.

I agree with the comments of Doherty J.A. in R. v.Lewis (1998), (ON CA), 38 O.R. (3d) 540, 107 O.A.C. 46 at para. 22: In concluding that the totality of the circumstances did not provide reasonable grounds for an arrest, I do not suggest that there must be

confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistentwith elevating one circumstance to an essential prerequisite to the existence of reasonable grounds .... [24] We agree with the Crown’s submission that the trial judge applied the correct test and made no error in concluding that the searchwarrant could have been issued on the evidence provided.

The trial judge considered whether the information provided was “sufficientlydetailed to preclude the possibility that it’s based on mere rumour.” Regarding the aspect of reliability of the informant, the trial judgerelied on the evidence confirming some aspects of the information provided.

In this respect, she stated: “We are looking for thisconfirmation because if the tipster is proven correct about some details it might be safe to rely on other information provided” ....[emphasis added] [32] This approach to corroboration is consistent with the common sense approach to corroboration described by Justice Dickson,as he then was, in Vetrovec v. The Queen, (SCC), [1982] 1 SCR 811 at 826: “We therefore want some other piece ofevidence which tends to convince us that he is telling the truth.

Evidence which implicates the accused does indeed serve to accomplishthat purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice” [or in this case, the CI]: see Rv Khela, 2009 SCC 4 at paras 40-43. [33] Was there other evidence that tended to show that what the CI said was at least probable, that it was safe to rely on what theCI said? [34] Ms. Gilmour’s ownership of the blue Honda Prelude was definitely corroborated. That, however, did not invest the CI’sconclusory statements about her drug activities with any weight. The CI’s accuracy respecting Ms.

Gilmour’s vehicle did not permit aninference that the CI is also accurate about her participation in drug transactions. This is because these are two different sorts of claimsdealing with very different types of information, drawing on different and independent sources of information. One could not say thatcorrectness on one point enhances correctness on the other. [35] The difficulty with the CI’s claims about Ms. Gilmour’s drug dealing is that these were bare assertions, mere conclusions. Ifthere is other evidence that supports the reasonable probability of Ms.

Gilmour’s involvement in drug trafficking, that inference relies onthat other evidence. That inference is not buttressed or assisted by the CI’s claims. The “corroborative” evidence is actually thefoundational evidence for the drug involvement inference. This is not to say that the CI evidence was improperly considered. It was theinferential equivalent of a “hunch” that spurred an inquiry. This equivalent of a hunch, however, acquired no greater probative value asthe investigation progressed – the additional evidence acquired would be the source of better proof. 2.

Reputation Evidence [36] Two sorts of reputation evidence were deployed against Ms. Gilmour in the ITO, respecting her personally and respecting herassociations. (

a) Criminal Record [37] Ms. Gilmour does have one conviction for possession for the purposes of trafficking, dated July 6, 2011. That convictionpredated the present charges by a little over four years. No details respecting the circumstances or sentence were provided. [38] Ms. Gilmour committed two administration of justice offences, and in 2008 was convicted of 9 property offences. Theseoffences have no or very little probative value on the issue of her disposition to commit a drug trafficking offence. [39] A single four-year old related conviction does not have no probative value on the reasonable grounds issue, it is not irrelevant,but its weight is low. (

b) Associations [40] Evidence of association with individuals involved in the drug trade could support the probability that Ms. Gilmour too wasinvolved in the drug trade: Debot at 1169-1170; R v Mayor, 2013 ABQB 598, Macklin J at paras 38-40. [41] Cst. Kowalchuk referred to • an August 3, 2009 incident, when Ms. Gilmour was found, along with 5 others (including Carole Sather) in a fortified drug house.It was not indicated whether Ms. Gilmour or anyone else was charged with any offence (para 30). • a May 9, 2015 incident, when Richard and Dale Whitford were seen standing near Ms. Gilmour’s Mazda.

It appears that neitherwas charged with an offence (para 31). Ms. Gilmour was not stated to be present at this time. A comment following this paragraph statedthat the licence plate on the Mazda had previously been used by Cody McKinnon, who appears to have been (at some point) Ms.Gilmour’s boyfriend. The comment also stated, without providing details, that Richard Whitford is a prolific offender and has beencharged (at least) with trafficking in marijuana. • a May 31, 2015 incident when the EPS had Cody McKinnon under surveillance (para 28). Again, Ms. Gilmour was not stated to bepresent. The link to Ms.

Gilmour was that Mr. McKinnon was seen leaving an Edmonton address described as Ms. Gilmour’s residence,although Ms. Gilmour was described as Mr. McKinnon’s “ex-girlfriend.” A comment following this paragraph indicated that onNovember 1, 2014, Mr. McKinnon was charged with trafficking methamphetamine.

• a June 7, 2015 incident, when Ms. McKinnon was seen looking out of the balcony window of the Edmonton address (para 29). Ms. Gilmour’s Honda Prelude was parked at the rear of the address. Carole Sather’s vehicle was parked beside Ms. Gilmour’s vehicle. A comment following para 30 stated that Ms. Sather was charged with possession for the purposes of trafficking on August 5, 2015. • a September 9, 2015 incident, when Ms. Gilmour’s Honda Prelude was observed to be parked near the Edmonton address (para 32). About 6 years before the ITO was sworn Ms. Gilmour was found in a drug house, along with others.

That sheds little light on her activities in 2015. There was no evidence that she was in business with the Whitfords or with Cody McKinnon. The Whitfords were seen by her car but Mr. McKinnon had been using the licence plate on that car. There is no way of knowing which of Mr. McKinnon or Ms. Gilmour (if either of them) was associated with the Whitfords. Ms. Gilmour was linked to her Edmonton residence but that could not be surprising or sinister.

She may have had contact with Carole Sather but there was no suggestion on the evidence that she was involved in drug transactions with her in 2015. [ 42 ] As for the references to Mr. McKinnon, the Whitfords, and Ms. Sather, I am put in mind of para 11 of Quilop : [11] The determination of whether reasonable grounds exist is determined by having regard to objective facts supported by evidence. Deciding what facts should be considered is critical. In this case, the Crown adduced a set of facts involving the activities of three parties, other than the appellant, a year prior to his arrest.

These parties were suspected but never proven to be drug traffickers and the only evidence of a prior connection between the appellant and these others was that “years earlier” the appellant was seen in the company of one or two of them. The inclusion of these facts in the trial judge’s analysis may have been necessary to provide context, but the only facts that can properly be relied upon are those involving the appellant . [emphasis added] [ 43 ] In all, it could be safely concluded that Ms.

Gilmour had ongoing associations with individuals in the drug trade but that would not make her a trafficker of methamphetamine or GHB and none of this would be evidence that the Enoch residence was used to traffic drugs. [ 44 ] The traffic stop that occurred late on September 22, 2015 is on a different footing. I will consider that evidence below. 3. Surveillance [ 45 ] Aside from the traffic stop, there were only two surveillance incidents involving Ms. Gilmour in an active role.

Properly speaking, there was just one observed incident potentially consistent with trafficking. [ 46 ] One of the observed incidents had no evidential value. On October 11, 2014, Ms. Gilmour was found in her Prelude in an alley in Edmonton. The police report indicated that she had “no good reason to be there” (para 27). She was not, of course, obliged to account for herself to the police.

It would have been more accurate to have reported that she “provided no reason to be there.” But that phrasing of the report would simply confirm that this fact does not have probative value on the issue of whether she was involved in drug trafficking. [ 47 ] The second incident occurred in the parking lot of her Enoch residence (para 37). On September 16, 2015, at 14:20 hours, a third party (later identified as Marek Repa) parked his truck in the parking lot. He appeared to be texting on a cellphone. At 14:24 hours, Ms. Gilmour left the residence with a dog. She had a cellphone and was holding it to her ear.

She went south from the residence. At 15:20 hours, Ms. Gilmour came into the parking lot from the north. She met with the third party in the truck: “GILMOUR met the male on the front passenger side and the male reached over through the open window while GILMOUR hands the male an object in his hand.” He drove off and she walked with her dog southbound. The comment following this paragraph stated that Mr. Repa has an extensive criminal history. No drug convictions were mentioned. Mr. Repa was not stopped and searched on this day. [ 48 ] This incident did involve both Mr. Repa and Ms. Gilmour using cellphones.

That, in 2015, was not remarkable and not indicative of drug trafficking. A minor point is that as she was leaving her residence with the dog, Ms. Gilmour was seen to be listening to her phone not checking texts. [ 49 ] This incident did involve Ms. Gilmour handing an object to Mr. Repa. Mr. Repa was not observed to have handed anything to Ms. Gilmour. I grant that perfect or complete observation is not required. The exchange point aside, objectively speaking, characterization of the transaction as a drug-related transaction has evidential challenges. In particular, Ms.

Gilmour took nearly an hour to go around from her residence to Mr. Repa’s truck. While the physical interaction between Mr. Repa and Ms. Gilmour was quick, Mr. Repa was sitting out in the open for a long time, possibly waiting. That would not be prudent drug purchaser conduct. If Ms. Gilmour were supposed to have taken drugs from her residence, she was walking with them for nearly an hour. I grant that her dog (a pit bull) could have provided some protection, but this would not be prudent vendor conduct. Moreover, the walk around the building does not suggest that Ms.

Gilmour took anything from her residence in the building. A quick exit and transit to Mr. Repa’s truck would have provided weight to the inference that what she gave him was something from her residence. As it is, we do not know where Ms. Gilmour went and we cannot, without jumping to conclusions or speculating, characterize what the object was that she handed to Mr. Repa or where she got it.

I am put in mind of the Court of Appeal’s comment in Quilop at para 26 : [26] With respect, we are of the view that the trial judge erred in concluding that the facts he found amounted to reasonable and probable grounds for arrest. It is important to note that there were very few surveillance observations: two, to be exact. And not only were they consistent with lawful behaviour, but there was also nothing in the observed behaviour which objectively suggested the appellant had committed or was about to commit an indictable offence. The police simply suspected drug trafficking.

Mere suspicion cannot justify an arrest. See also Gore at para 104-105 and Uppal at para 56 .

4. Traffic Stop [ 50 ] Evidence was gathered respecting Ms. Gilmour in the course of a traffic stop that occurred late on September 22, 2015. I considered the traffic stop in a prior voir dire dealing with whether certain evidence gathered through the traffic stop should be excised from the ITO. I declined to excise any information from the ITO relating to the traffic stop, save for some information relating to Ms. Gilmour’s cellphone that the Crown rightly conceded should be excised. [ 51 ] Ms. Gilmour and Mr. Reigate were in the Honda Prelude. They were detained in a valid traffic stop. Mr.

Reigate, who had been driving, was arrested for obstruction since he lied to the investigating officer about his name and he was arrested on an “unlawfully at large” warrant. Ms. Gilmour was initially arrested for possession of a weapon for a purpose dangerous to the public peace. A can of bear spray was located in plain view near where she was sitting in the Prelude after Ms. Reigate got out. She was not subsequently charged with this offence. [ 52 ] Mr. Reigate was found with $2,030 cash in his possession, in $20 and $100 bills. From Mr.

Reigate’s statements and independent evidence from the Enoch residence building manager, he, it may be inferred, was a co-tenant with Ms. Gilmour of the Enoch residence. [ 53 ] The comment following para 42 of the ITO stated that “REIGATE has an extensive criminal history including violence, drugs, property crimes and frauds …. On [November 14, 2012] REIGATE was convicted of possession of a scheduled substance for the purpose of trafficking.” [ 54 ] The centre console of the Prelude was found to contain a white plastic grocery bag with empty sandwich bags. [ 55 ] Ms.

Gilmour’s purse was searched incident to her arrest. I found that this search was lawful. In her purse was found a “score sheet” relating to drug debts and two empty “dime bags” or baggies. [ 56 ] While bags that could have held drugs were found in the vehicle and in Ms. Gilmour’s purse, the ITO did not disclose that any controlled drugs or any drugs were found in the vehicle or Ms. Gilmour’s purse. [ 57 ] Mr. Reigate had cash with him that might have been the proceeds of drug sales or some other offence.

Drug sales might be indicated by the presence of the baggies – keeping in mind that these were empty and that there was no evidence of drugs found in the vehicle. But even if it were reasonably probable that Mr. Reigate were trafficking drugs, that would not, by itself, be evidence that Ms. Gilmour was trafficking drugs. [ 58 ] In my opinion, the empty baggies in Ms. Gilmour’s purse do not assist in supporting the inference that she was trafficking with Mr. Reigate. There were only two baggies. Again, there was no evidence of actual drugs. [ 59 ] We do know that Mr. Reigate and Ms.

Gilmour were co-tenants in the Enoch residence, that he was seen in her company, and that he may have been involved in drug-related criminal activity. We do not know how long they were together or the nature of their relationship. What of the score sheet found by Cst. Clemens? This was referred to in the ITO but not detailed or exhibited to the ITO. Whether Cst. Clemens’

interpretation of the document was reasonable was not a matter that could be explored within the evidential confines of the ITO. Moreover, even if it were an actual score sheet - a record of drug transactions - and given that it was found in Ms. Gilmour’s purse, would that, along with the other evidence, make it at least reasonably probable that she was dealing drugs out of her Enoch residence? [ 60 ] In my opinion, even with the addition of the document interpreted as a score sheet, what is raised is at its highest reasonable suspicion that Ms.

Gilmour was (somehow) involved in drug trafficking. [ 61 ] I have taken the following into account: the comments of the CI that initiated the investigation, Ms. Gilmour’s 2011 conviction for possession for the purposes of trafficking, the single observation of the transaction in the Enoch residence parking lot, Ms. Gilmour’s association with Mr. Reigate, the presence of the document claimed to be score sheet in her purse, and the presence of some empty baggies that could have held drugs but did not in fact hold drugs when seized.

In my opinion, again, what the evidence in the ITO properly supports is, at the highest, a reasonable suspicion that Ms. Gilmour was somehow involved in some sort of drug trafficking through mechanisms that could not be ascertained. The evidence in the ITO fell short of establishing reasonable grounds for believing that Ms. Gilmour was conducting drug trafficking (let alone trafficking in methamphetamine or GHB) from her Enoch residence and that evidence relating to drug trafficking and related Criminal Code offences could be found at her Enoch residence.

The constitutional standard for granting the search warrant was not met. Ms. Gilmour’s rights protected under s. 8 of the Charter were violated. C. Must the Seized Evidence be excluded under s. 24(2) of the Charter ? [ 62 ]

Section 24 of the Charter provides as follows: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction 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 any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. An accused bears the burden of establishing exclusion of evidence under s. 24(2). The s. 24(2) argument has three elements. The accused

must establish the infringement or denial of a Charter right; the evidence in question must have been “obtained in a manner that infringed or denied” rights or freedoms guaranteed by the Charter ; and the admission of the evidence in the proceedings would bring the administration of justice into disrepute. [ 63 ] The violation of Ms. Gilmour’s Charter rights has been established. The Seized Evidence was “obtained in a manner that infringed or denied any rights or freedoms guaranteed by [the] Charter ” since the evidence was seized based on a warrant that lacked the constitutionally required evidential foundation.

The remaining question is whether the admission in the trial of the evidence would “bring the administration of justice into disrepute.” [ 64 ] In R v Grant , 2009 SCC 32 Chief Justice McLachlin and Justice Charron identified three overarching purposes of s. 24(2) to be considered when assessing whether admitting evidence obtained through a Charter violation would “bring the administration of justice into disrepute.” First, decisions to exclude or not to exclude evidence under s. 24(2) should promote the integrity of the justice system and public confidence in the justice system.

Second, decisions should have a “prospective” focus, preserving the repute of the justice system from further injury. Third, decisions should address societal or systemic concerns, the impact of admitting the evidence on the long-term repute of the justice system. In addressing these matters, there should not be a “focus on immediate reaction to the individual case.” Rather, a long-term perspective must be adopted.

The perspective should be that of the reasonable person informed of all relevant circumstances and the values underlying the Charter : Grant at paras 68 - 70 . [ 65 ] In Grant , the Supreme Court also identified three avenues of inquiry to guide courts in determining whether the admission of evidence would bring the administration of justice into disrepute: • the seriousness of the Charter infringing state conduct; • the impact of the breach on the Charter protected interests of the accused; and • society’s interest in the adjudication of the case on its merits.

A judge deciding a s. 24(2) application must balance factors considered under these headings. According to Chief Justice McLachlin in R v Harrison , 2009 SCC 34 at para 36 , the balancing is qualitative and case-specific and does not involve simply stacking factors on the side of exclusion or admission: “In all cases, it is the long-term repute of the administration of justice that must be assessed.” [ 66 ] I will go through the avenues of inquiry in reverse order. The avenues of inquiry are not sequential; one is not a threshold test for the others.

This approach should assist in highlighting the issues at stake in this case. 1. Society’s interest in the adjudication of the case on its merits [ 67 ] According to Grant at para 79 , this line of inquiry concerns “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or its exclusion.” Factors relevant to this avenue of inquiry are the reliability of the evidence and its importance to the Crown’s case: Grant at para 139 ; Harrison at paras 33 and 34 . [ 68 ] In this case, the Seized Evidence is comprised of physical objects.

This is reliable evidence. The physical nature of the evidence was unaffected by any Charter breaches: Grant at para 115 . [ 69 ] The Seized Evidence is essential to the Crown’s case. Its exclusion would “gut” the Crown’s case. The exclusion of highly reliable and essential evidence may negatively affect the repute of the administration of justice. 2. Impact of the breach on the Charter -protected rights of the accused [ 70 ] This avenue of inquiry calls for an evaluation of the extent to which the Charter violation actually undermined the interests protected by the right infringed.

The inquiry looks to the effect of the Charter violation on the person whose rights were violated – the Charter violation is assessed from the perspective of the impact on the accused rather than from the perspective of the conduct of the police.

The impact of a Charter violation on an accused may range from fleeting and technical to profoundly intrusive: Grant at para 76 . [ 71 ] The Court of Appeal emphasized the importance of this avenue of inquiry in Quilop at para 43 : [43] This branch of the Grant test must not only consider the appellant in assessing the impact of the breach on him, but it must also consider the circumstances of an ordinary, innocent citizen subjected to the same Charter -infringing conduct.

To employ the words of the Supreme Court in Grant , it is the extent to which the breach undermined the interest protected which must be evaluated under this branch of the three-part test (para 76), not just the appellant’s interest in the protected right. The seriousness of the infringement must be looked at from the perspective of the importance of the interest impacted by the infringement. Not just the accused’s interest, but the interests of all citizens.

And the more serious the impact on the protected interest, the greater the risk that admission of evidence “may signal to the public that Charter rights, however high-sounding, are of little avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” (para 76).

Justice Graesser in Gore at para 100 and Chief Justice Moreau in Uppal at paras 64 and 70 confirmed and reminded us that in a case like the present, when the search was of a private residence, a very high level of privacy, that is to say, a strongly elevated reasonable expectation of privacy, was engaged. [ 72 ] Hence, the adverse impact of the Charter violation on Ms. Gilmour’s privacy interests was significant, as would have been the impact on the interests of any ordinary citizen subject to the same Charter ​-infringing conduct. 3. Seriousness of the Charter -infringing conduct

[73] This line of inquiry considers the Charter violation or violations by looking to the conduct of the State actors. The minimumnecessary wrongful conduct must have occurred to warrant a finding of Charter violation. The actual wrongful conduct may have beenonly that minimum or may have involved more serious or significant improper activity. The more serious the Charter-violating conductof the State actors, the stronger the case for exclusion of evidence. This is because admitting the evidence despite the wrong-doing wouldamount, in effect, to the court condoning or ignoring the wrong-doing.

It would amount, in effect, to the court disregarding the rule oflaw, the requirement that the State abide by the rule of law. See Grant at paras 72 and 74. The seriousness inquiry, then, involvesjudicial self-reflection on the constitutional tolerability of the Charter violation. [74] Yet s. 24(2) does not establish an automatic exclusion rule so that every Charter violation requires the exclusion of evidence.Rather, s. 24(2) recognizes that the administration of the law is a human activity, subject to error and imperfection. Not every bareCharter violation will result in the exclusion of evidence.

In addition to considering the other avenues of inquiry, the present avenue ofinquiry requires consideration of the nature of the State actors’ Charter-violating conduct - whether it was inadvertent or in good faith,based for example on legal advice or legal understanding that turned out to be wrong, whether it involved the intentional or recklessviolation or disregard of rights, whether it was part of a pattern of wrongful conduct, or whether the conduct resulted from improper orarbitrary motivations: Harrison at para 25.

Another relevant consideration might be whether the purpose of the conduct was to preservea third party from imminent harm or to reduce the risks that others would be exposed to imminent harm. The State actors’ conduct mustbe assessed in the totality of the circumstances: R v Belnavis, (SCC), [1997] 3 SCR 341 at para 41. [75] While I did not find that the ITO met the constitutional standard, I did not find factual errors or negligence or evidence of badfaith.

The ITO, however, did contain some elements of what might be regarded as at least hyperbole or of what might regarded asemotive (as opposed to evidential) tactics for persuading the issuing justice. I do recognize that, within this and other ITOs, a distinctionis drawn between facts deposed to and “Investigator Comments.” The flagging of propositions as “comments” does indicate that less (orperhaps no) independent weight should be attached to the comments. Comments may be for the purpose of (e.g.) clarifying the evidenceto be actually relied on.

Nonetheless, the comments are present in the ITO, will be read, and do have rhetorical or persuasive effect. Icannot say whether these sorts of elements are common features of ITO writing. I do suggest that the inclusion of the sorts of elementsfound in this case should discouraged – or at least should be corrected through linkage to proper evidence. I have in mind the followingelements of the ITO: • para 24: the affiant indicated that the Enoch building manager “complained of drug activity and that there were several drugdealers living in the building.” This comment did not identify Ms.

Gilmour as one of those drug dealers. The comment had no probativevalue respecting Ms. Gilmour. • para 29(d): the affiant stated that “Both GILMOUR and SATHER are believed to be actively selling dope based on previous streetcheck reports and investigations.” This comment may be an accurate report of a Street Check submitted by another officer but it is aconclusion that is not supported by particularized evidence; moreover, it follows the observation that Ms. Sather’s vehicle was found byMs. Gilmour’s Edmonton residence.

The bare conclusion serves as a means of rendering sinister an otherwise unexplained parkedvehicle – the only evidence of contact between Ms. Gilmour and Ms.

Sather since 2009, at least as set out in the ITO. • after para 30(g), comment: the affiant stated that “GILMOUR has made a habit of associating with sophisticated people involved inthe drug trade.” That conclusion was not based on particularized evidence. • after para 30(g), comment: the affiant also stated that “It’s believed GILMOUR recently moved because she felt police were awareof her association with SATHER, her involvement in the drug trade and to avoid additional police attention.” That comment involvessignificant inferences about Ms. Gilmour’s knowledge and motivations.

Again, the conclusions are not based on particularized evidence. • after para 31(c), comment: the affiant stated that “It’s believed GILMOUR has a second vehicle registered so she can lend it torunners (drug dealers).” It is not at all remarkable to own two vehicles, especially if one is an early 1990s Prelude. The commentelevated Ms. Gilmour into a sort of drug crew chief with employees. No evidence supported such conclusions. The comment followsobservations concerning the Whitfords. The comment has the effect of transforming the Whitfords into Ms. Gilmour’s employees.

Thatconclusion was not warranted even as a possibility on the evidence. • after para 42(f), comment: the affiant stated that “It’s believed REIGATE and GILMOUR are working together and are activelytrafficking drugs.” This is a conclusion or bare assertion on a par with the CI’s allegations. This would have been a legitimate conclusionof the ITO if supported by evidence. Mr. Reigate and Ms. Gilmour were seen together and were co-tenants. That does not mean that theywere working together. The evidence did not show that either Mr. Reigate or Ms.

Gilmour were “actively trafficking drugs” (recall thatthere was only one suspicious transactional observation of Ms. Gilmour). The comment gives the impression of further evidence knownto the police that (for some reason) was not disclosed in the ITO but that should be relied on. This other implicit evidence is pulled intothe ITO through the conclusion that rests on it. And, in this case, illegitimately pulled into the ITO. [76] I find that the improper rhetorical tactics I have identified elevate the seriousness of the Charter-infringing conduct of theaffiant. [77] I do take into account that Ms.

Gilmour was charged with serious offences. However, the seriousness of charges, by itself,does not mitigate the seriousness of Charter-violating conduct. It is not that there is one set of Charter rules for “serious” offences andanother for “less serious” offences: R v Williamson, 2016 SCC 28 at para 34. The seriousness of the offence, which would generallyentail exposure to more severe penalties and greater stigma, might be argued to require greater constitutional scrupulousness rather thanless.

In any event, as Justice Cronk has wisely observed, what must avoided is “ends justify the means” reasoning - [40] As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysiswould deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under theCharter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’” (para. 150).

Charter protectionsmust be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences ...: Harrison atpara 40.

4. On balance, does s. 24(2) require the exclusion of the Seized Evidence? [ 78 ] I have taken into account the impact of the admission or exclusion of the Seized Evidence on the long-term repute of the administration of justice, from the perspective of a reasonable person informed of all the circumstances and informed of Charter values. I have taken into account the truth-seeking objectives of trial and society’s interests in adjudicating this case on its merits. Specifically, I have taken into account that the Seized Evidence is comprised of physical evidence, unaffected by any Charter violations.

I appreciate that excluding the evidence would “gut” the Crown’s case. I have taken into account the impact of the violations on Ms. Gilmour’s Charter -protected rights to privacy, her right and our right to be left alone by the State and not to be subject to search without legal grounds. I have taken into account the seriousness of the State conduct, particularly what I view as the improper inclusion of unsubstantiated opinion in the ITO. The seriousness of the charges faced by Ms.

Gilmour does not attenuate the seriousness of the police violations of her rights. [ 79 ] Taking into account the totality of the circumstances, in my opinion, the long-term repute of the administration of justice demands that the Seized Evidence be excluded from the trial. Ms. Gilmour has established that the admission of the Seized Evidence in the trial would bring the administration of justice into disrepute. The Seized Evidence is therefore excluded from trial under s. 24(2) of the Charter . Heard on the 27 th day of November , 2017. Delivered on the 28 th day of November, 2017.

Signed at the City of Edmonton, Alberta this 1 st day of December, 2017. W.N. Renke J.C.Q.B.A. Appearances: Jared Bialowas Director of Public Prosecutions Public Prosecution Service of Canada for the Crown R. Douglas Vigen Barrister and Solicitor for the Accused