R v McDonald, 2017 ABQB 778

Court of Queen’s Bench of Alberta Citation: R v McDonald, 2017 ABQB 778 Date: 20171214 Docket: 150725513Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Jeffery McDonald Accus ed _______________________________________________________ Voir Dire Decision of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Introduction [ 1 ] Mr. McDonald is charged with drug trafficking and weapons offences. The Indictment against him reads: ...

(3) That he, on or about the 18th day of June, 2015, at or near Calgary, Alberta, did possess a firearm, to wit: a colt gold cup trophy handgun without being the holder of a licence under which he may possess it (and in the case of a prohibited or restricted firearm, a registration certification for the firearm), contrary to section 91(1) of the Criminal Code of Canada .

(4) That he, on or about the 18 th day of June, 2015, at or near Calgary, Alberta, did unlawfully possess a controlled substance, to wit: cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

(5) That he, on or about the 18 th day of June, 2015, at or near Calgary, Alberta, did possess a firearm, to wit: a Smith and Wesson M&9 9 millimeter handgun without being the holder of a licence under which he may possess it (and in the case of a prohibited or restricted firearm, a registration certification for the firearm), contrary to section 91(1) of the Criminal Code of Canada .

(6) That he, on or about the 18 th day of June, 2015, at or near Calgary, Alberta, did unlawfully possess an unloaded prohibited or restricted firearm, to wit: a Smith and Wesson M&9 handgun, together with readily accessible ammunition that is capable of being discharged in the firearm, at unit [ ], 1010 1 Street SW, without being the holder of an authorization or licence under which he could possess the firearm in that place, contrary to section 95(1) of the Criminal Code of Canada . [ 2 ] His co-accused relating to counts 1-2 is being dealt with separately. [ 3 ] Based on surveillance and a tip, police observed the Accused.

On June 18, 2015, the police stopped a black Malibu car and arrested the Accused. That arrest led to a search that revealed a small amount of a white substance. Several hours later, the police obtained a warrant to search a residence thought to be the Accused’s (#[ ], 1010-1 st Street SW, the “1010 residence”) and apparently found handguns, ammunition and 200g of a white substance thought to be cocaine. Charter Challenge [ 4 ] The Accused alleges his rights were breached under sections 8 and 9 of the Canadian Charter of Rights and Freedoms,

part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 ( Charter) and he seeks relief under s 24(2) of the Charter . The first 37 paragraphs of this decision deal with s 8 and the search of the residence. Paragraphs 38-49 deal with s 9 and the arrest. The steps for this challenge are explained more in the procedure below. [ 5 ] Following a voir dire , I gave oral reasons excluding seized items from the residential search with a promise to deliver written reasons. These are the reasons.

Procedure [ 6 ] Crown and Defence agreed at a pre-trial conference held by Hughes, J. that the following procedure would be applied to this voir dire : i. A redacted “Information to Obtain” (ITO) would be provided to the Court; ii. Arguments would be made on whether or not the ITO before the Court is sufficient to justify the issuance of the warrant in relation to the 1010 residence; • The Defence position is that there is no basis upon which the search warrant could have been issued in this case, and that what resulted was a warrantless search in violation of the Accused’s rights under s 8 of the Charter .

More specifically: a. There were no grounds to believe that any illicit substances or evidence of criminal wrong-doing would be found in the place to be searched; b. There were no grounds to believe that the Accused had committed any criminal offence; c. The Affiant failed to discharge his obligations of full, frank and fair disclosure; d. The ITO contains insufficient evidence upon which the issuing justice could have made a proper judicial assessment of whether the information received from the sources was compelling, credible or corroborated.

Furthermore, the tip is conclusory in nature and does not contain sufficient detail to ensure that it is not based on mere rumor or gossip. • The Crown’s position is that the ITO as redacted is sufficient to have justified the issuance of the warrant and that there is no violation of s 8. iii.

As the grounds for the arrest of the Accused are the same as those set out in the ITO, counsel have agreed to deal with the s 9 Charter notice application on the basis of the information contained in the ITO as well. • The Defence position is that there was no lawful basis upon which the police could conduct a warrantless arrest of the Accused and that the arrest was therefore warrantless (and so too was the search incident to arrest). • The Crown’s position is that the police had the requisite grounds to conduct a warrantless arrest of the Accused and that the search incident to arrest was lawful. [ 7 ] Additionally, Crown and Defence subsequently signed an Agreed Statement of Facts (ASF) that states: 1.

Cst. Galbraith (the Affiant) did not disclose to the issuing justice that Informant A was paid for the information that he or she provided to police. 2. On June 2, 9, 10 and 11, 2017 Cst. Galbraith conducted searches of police computer databases to determine which vehicles were associated with Jeffery McDonald and Michael Oria. No Nissan Altima was identified in any of the searches.

Burden of Proof [8] In challenging the ITO, the Accused bears the burden of proof, on a balance of probabilities, that it is invalid: R v Morelli,2010 SCC 8 at para 131. Renke J. recently summarized the details of how the warrant evidence is scrutinized in R v Gilmour, 2017ABQB 735 at para 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. [9] Both counsel agree to the test, which is that of a credibly-based probability.

Gilmour summarizes it at paras 11-13 asfollows: The belief, finding, or inference that it is probable that an offence has been committed and that evidence of that offence would be foundas specified must be based on “credible” evidence: the standard is one of credibly-based probability: Clow at para 10. Mugesera refers inpara 114 to “compelling and credible” information. Morelli and Aranjo refer to “reliable” evidence that might reasonably be believedand to credible and reliable evidence. The belief, finding, or inference is objective. The perspective is that of the reasonable person.

More precisely, the perspective is that ofthe reasonable person “standing in the shoes of a police officer:” Sanchez at para 32 (CarswellOnt). Police training and experience maypermit an appreciation of the significance of facts that persons without that training and experience would miss. In R v Quilop, 2017 ABCA 70 at para 27, the Court of Appeal reminded reviewing judges not to degrade the reasonable probabilitystandard 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. [10] Both counsel also submitted, and I agree, the assessment of the validity of the ITO is to be based on a totality of the ITO andnot individual pieces in it. The ITO [11] The Affiant swears he has reasonable grounds to believe drugs and related items support trafficking and proceeds chargesagainst the Accused.

For the purposes of the voir dire, only one residential warrant is relevant and that is the warrant to search the 1010residence. That is important because the other residence, “Erin Meadows,” is not the subject of this warrant but is mentioned about 24times in the ITO. [12] Statements are made in the ITO about the Accused doing “dial-a-dope” and trafficking out of the 1010 residence. Reference ismade to quick transactions in Calgary.

Also, there is a statement that the accused has a “limited” criminal history but to repeat, the surveillance consistent with drug trafficking is “...out of McDonald’s primary residence – [the ITO points to] [ ]-1010, 1st Street SouthWest...” [13] The conclusion of the ITO culminates with the accused trafficking out of the 1010 residence. [14] Regarding Informant A, the confidential informant (CI), the Affiant relied on him because: • The CI witnessed the event(

s) personally; • The CI gained the information from a conversation with a person directly involved in the reported events; • The CI overheard a conversation with persons directly involved in the reported event(s). [15] That said, the officer would not disclose whether the CI had a criminal record. The Affiant gave limited information about theCI, for example, that he “...has never been charged with an offence of obstructing a peace officer, perjury or any other offence which

relates to dishonesty.” Finally, the Affiant relies on the CI’s information that the accused sells cocaine and marijuana in Calgary out of ablack Chevrolet Malibu with dark tint and black rims, and goes by the name George Jung on Facebook.[1] [16] To summarize the investigation, it happened over a month and a half, boiled down to seven days, from which the investigationwas active about three days. The Surveillance Activity [17] The ITO surveillance uncovers several short meetings in East Calgary between the Accused and several identified andunidentified people.

Many of these meets or greets were in the Accused’s car (the black Malibu). That car was seen driving randomly orerratically in traffic. The surveillance also showed meets with persons from other cars. [18] The ITO mentions several occasions of the Accused or others bringing a shoulder bag in or out of another residence or car andthe Accused shifting something in the trunk.

Also, the Accused met briefly with unidentified people as well as with two knownindividuals, one (Shad) who has criminal convictions for uttering threats and possession of a weapon in 2012, and the other (Marquis)who has a trafficking conviction from 30 years ago and a $500 fine for possession of cocaine nine years ago. [19] There was an occasion where the black Malibu (the Accused may have been driving), picked up and dropped off an unknownmale who had $20 bills in his hand. The Law The Controlled Drugs and Substances Act, SC 1996, c19 (CDSA) states as follows: 11.

(1) Information for search warrant – A justice who, on ex parte application, is satisfied by information on oath that there arereasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

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

a) is contained or concealed, (

c) offence-related property, or (

d) anything that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to acontravention of this Act, under

section 354 or 462.31 of the Criminal Code is in place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlledsubstance, precursor, property or thing and to seize it. [Emphasis added.] [20] In looking at the ITO that gave rise to the CDSA warrant, I remind myself of the proverb that one cannot be preoccupied withminor details and lose the totality of the forest for the individual trees.

Yamauchi J. in R v Hatton, 2011 ABQB 242, discusses thisimportant principle at para 92: While undertaking this analysis, courts must look at the totality of the circumstances and not “lose the forest for the trees.” In Ling atpara. 36, the court, referring to an earlier decision of that court involving a marijuana grow operation, R. v. Nguyen, 2007 BCCA 264, 241 B.C.A.C. 244 said: 36 The confidential source who provided the critical tip was a fellow police officer of the officer completing the ITO. That fact wasnot disclosed in the ITO although the existence of the source and his information was.

The trial judge found no grounds for quashing thewarrant. Madam Justice Saunders, for the Court, repeated without criticism this portion of the trial judge's reasons dealing with hisreview of the ITO: [9] In conducting this review, it is not appropriate to conduct a microscopic analysis of the affidavit. Rather, I must examine thetotality of the circumstances. Nor is it necessary for the affiant to disclose all of the information in the hands of police nor need theaffiant disclose every fact which might possibly be relevant.

The obligation is on the affiant to make a full, fair and frank disclosure. [Citations excluded]. [21] Yet, in considering the totality of the evidence, there still needs to be a thorough reasonable grounds analysis of the “trees”making up the proverbial “forest” to see if the forest is a forest. If there are no trees there can be no forest. Argument The Defence

[22] Generally, the Defence argues that there were no reasonable grounds to believe the Accused committed the offence oftrafficking cocaine or proceeds of crime. Specifically, the Accused challenges the position that the evidence was linked to the 1010residence at the time the warrant was issued.

The Accused defends his argument on the basis of the sanctity of the home, a principleprotected for hundreds of years and recently by the Supreme Court of Canada in R v Silveira, (SCC), [1995] 2 SCR 297,and R v Tessling, 2004 SCC 67. [23] The Accused and the Crown identify that the issue in this case is really the nexus to the place to be searched. In other words,there should be a credibly-based probability between the anticipated drug activities and the location where the police want to search. TheAccused relies on several cases to exclude the evidence that was taken from the search of the 1010 residence.

In particular, the Accusedrelies on two cases with similar results in Alberta: R v Gore, 2017 ABQB 167, and R v Uppal, 2017 ABQB 373. Among other things, theAccused argues that the Affiant in the ITO did not make full and frank disclosure as required by law, and that there are several problemswith the CI in this particular ITO. Among them is that the language in the ITO suggests a criminal record and that is important because itgoes to credibility.

Also, it is not enough to say as in this case “... informant A has never been charged with the offence of obstructing apolice officer, perjury or any other offence which relates to dishonesty.” The Accused, citing R v Floyd, 2012 ONCA 417 at para 53,points out that the credibility of the CI is on the line and any criminal conviction is relevant under the Canada Evidence Act, RSC 1985,c C-5, because it goes to the credibility of the CI witness. [24] The Accused challenges the CI’s information on the basis that he or she witnessed the events personally or gainedinformation from conversations from others or overheard such conversations.

The Accused relies on Gore which similarly described thiskind information as “bare bones.” Additionally, the Accused points to the weakness of the tip itself. For example, whether or not theAccused was known as Niko was not corroborated. The information related to the Accused is that he sells cocaine at the ounce level, at$100 per gram, and has people working under him selling drugs, typically a young Asian male passenger. But that is it, and there is nodetail on the origin of that information, nor is there support for the reference to the Accused’s name being Jung.

Nor were there any cellphones in spite of this being a “dial-a-dope” operation. Again, relying on Gore at para 37, short meetings is very generic information andoften criticized by our courts as potentially innocent circumstances between two people: R v NO, 2009 ABCA 75; R v Quilop, 2017ABCA 70 at para 32. [25] Finally, the ITO is silent on motive for the CI. The Accused points out that the CI was paid for the information and this wasnot disclosed to the issuing justice at the time.

Although it is not dispositive, omitting this fact is dishonest, which raises concerns that theissuing justice did not have all the information, including motivation. The Crown [26] The Crown argues that on the totality of the evidence, there is enough information to conclude as a whole that the Accusedwas trafficking drugs out of his residence. This information includes a confidential informant, physical surveillance around Calgary forabout six weeks, and coordination of addresses including the black Malibu with apparent drug transactions around the city.

Additionally,a new one-year tenancy agreement shows the Accused is listed with another tenant in the 1010 address and this is sufficient to authorizethe issuance of a warrant for a residential search of that location. [27] The Crown relies on Garofoli at para 56 to remind the Court the reviewing judge does not substitute his or her view for theauthorizing judge.

Instead, the test as per Morelli is whether there was reliable evidence that might reasonably be believed on the basis ofwhich the authorization could have been issued. [28] The Crown argues the Accused needs to do more than show the defects in the ITO ​– the Accused must establish the breachof s 8 on a balance of evidence, meaning it is likely that the search warrant would not have issued based on the content of the ITO. Evenif there are flaws, this can be made up in other ways on the whole of the evidence.

Among other things, the police do not have to provethat a crime is being committed: R v Caissey, 2007 ABCA 380 at para 23. Weakness in one area of the ITO may be compensated bystrengths in other areas: R v Debot, (SCC), [1989] 2 SCR 1140, aff’d [1989] 2 SCR 1140. Analysis [29] Similar to Uppal and Gore, the CI’s record, if it exists, is ambiguous and more information even by way of a redacted recordshould have been given to the authorizing justice to access the credibility of the CI. Simply saying the CI has never been charged withcertain things does not mean he has not been charged or convicted of other crimes.

Any record might be important: see Floyd at para 53.Whether or not the informant was reliable or credible was undermined by the failure to state that he was paid for the information he gave. [30] Additionally, having the CI witness events personally is one thing if true, but the ITO in this case suggests other evidencegathering options existed, meaning they could have been used. If this is true, this ITO is either permissible hearsay or weaker and lessreliable double hearsay (hearing someone else say it or hearing someone else say something about the events).

Similar to other cases,much of the information was generic. As Justice Graesser said in Gore at para 37: While police were able to corroborate that Ms. Gore was connected to the residence (by way of record searches) and that she owned theblue Dodge truck, that is very generic information. [31] In this case, there was information about the black Malibu and several short stops but it was never connected to the 1010residence searched except through the hospital trip from the garage which had nothing to do with drugs. Plus, there was no link to theresidence in any event.

To the credit of the Crown, he said: there is very little, there’s little to connect him actually to that particular [1010] apartment... that’s absolutely conceded. My point it’s adifferent... its apples and oranges...

As Yamauchi J. said in Hatton at para 74, the peace officer must present sufficient facts on which the justice can judicially satisfyhimself that reliable grounds exist.

Those facts include but are not limited to the mechanisms and foundation on which the informantbased their information, the means by which the informant came into the possession of the information, (R v Pastro, (SK CA), 42 CCC (3d) 485 at para 60), and details, particularly where those details help test whether the alleged facts are rumor orgossip (Caissey at paras 24-25, Debot at para 17). [32] Regarding the tip in this case, many aspects of it are general and conclusory. Other aspects of the tip, such as the nickname“Niko,” were not corroborated.

Ultimately, the biggest concern with the tip is the lack of a nexus with the 1010 residence. Theinformation in the tip does rise to the level of suspiciousness but that is not enough: Uppal at para 57. As stated by Justice Graesser inGore at para 73: In the absence of an observation about an exchange, I conclude that the two interactions were ambiguous enough to constitute only weakevidence of drug dealing.

Reasonable suspicion may have resulted, but not reasonable and probable grounds. [Emphasis added.] [33] On totality, the ITO indicates the black Malibu having several short meetings with people with handbags or gym bags in EastCalgary (not in Southwest Calgary where 1010 residence is). The ITO might rise to the level of reasonable suspicion but not reasonableand probable grounds, certainly not enough to search the Accused’s residence with no surveillance on it except the hospital trip of anunknown female in a parking lot. There was no link to the offence and the evidence.

Regarding the Accused, the only link was the newtenant’s agreement and the co-tenant whose car was registered to the residence (para 21(

b) of the ITO) but she was not identified as thewoman taken to the hospital from its parkade. At the end of the day, if there was anything compelling, it was not to the residence. [34] Ultimately, police should not be cherry picking details and feeding in boiler plate if it gives an oblique picture, see R v. Phung2013 ABCA 63 at para. 16. Also, suspiciousness from quick meetings is not enough: Gore at para 99. As the Court of Appeal said in R vNO at paras 41 – 42: [41] The Crown points to the hand-to-hand exchange which, in the officer’s experience, was typical of drug transactions.

But inmany innocent circumstances one person may hand a small object (such as a key or an earring) to another. Without information aboutthe individuals or the building, the fact of a hand-to-hand exchange shortly after midnight does not elevate the circumstances to theobjectively reasonable level necessary to justify detention. [42] The trial judge appears to have placed some weight on the fact that there was no conversation as the exchange took place.

Buta quick innocent exchange of, say, a key, might have been preceded by an earlier telephone conversation; a jilted boyfriend might handover an apartment key or a ring to his former partner without conversation. [35] And to repeat, from Quilop (commenting on the arrest) 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 andprobable grounds for arrest. It is important to note that there were very few surveillance observations: two, to be exact.

And not onlywere they consistent with lawful behavior, but there was also nothing in the observed behavior which objectively suggested the appellanthad committed or was about to commit an indictable offence. The police simply suspected drug trafficking. Mere suspicion cannot justifyan arrest. [36] The evidence or suspiciousness from the black Malibu surveillance and computer searches did not provide grounds to searchthe 1010 residence of the Accused, a residence mentioned once in the ITO, but with no evidence linking it to drugs. Both parties refer meto the case of R v Schmidt, 2010 ABQB 349.

In that case, at para 110, I said this about failed surveillance attempts on a residence inanother drug case: [110] In result, if the MHP’s specific reference to dwelling unit #[...] and the first searches on September 10, 2007 is left out, all thatis remains on the day in question is references to “Southland Drive” which could be imputed to be the residential complex. But with oneexception out of eight surveillance attempts, there is no direct link to the specific dwelling of the accused. [Emphasis in original.] [37] The evidence was excluded in Schmidt because of the weak link to the drugs and the dwelling.

But in that case, compared tothe present case, there was at least one plausible evidentiary surveillance of the residence. In this case there is none. Arrest – The Traffic Stop Law [38]

Section 9 of the Charter provides: Everyone has the right not to be arbitrarily detained or imprisoned. [39] For a warrantless arrest, s. 495(1) of the Criminal Code, RSC 1985, c C-46 applies. It states: 495(1) a peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence;

[40] For a warrantless search, the Crown has the onus to show on a balance of evidence, it was reasonable. [41] Focusing on the arrest, the Supreme Court in R v Storrey, (SCC), [1990] 1 SCR 241 at para 17 states theremust be reasonable and probable grounds, justifiable from both the officer’s subjective belief and from an objective point of view: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds.

Specifically theyare not required to establish a prima facie case for conviction before making the arrest. [42] Though the standard is not a prima facie case, the question is whether the police objectively had reasonable grounds to arrestthe Accused. As the Alberta Court of Appeal said in R v Nguyen, 2010 ABCA 146 at para 18: The legal threshold to establish reasonable grounds to arrest does not require a prima facie case but rather that the grounds for arrest inall the circumstances are reasonable.

The question is whether a reasonable person standing in the position of the officer could concludethat based on all the factors known or observed there were reasonable grounds to arrest. This means something more than meresuspicion, but less than proof on the balance of probabilities: see R v. Storrey, (SCC), [1990] 1 S.C.R 241 at para. 17.Moreover, the standard must be interpreted contextually, having regard to the circumstances in their entirely, including the timinginvolved, the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest.

In evaluating whetherobjectively reasonable grounds exist, the evidence must be viewed cumulatively. Crown [43] The Crown argues the legal threshold has been met.

Taken as a whole, and cumulatively, and from a common-senseperspective, the short meetings (usually in a car owned by the Accused, driven to meet with two known individuals with drugconvictions, including one for trafficking) do establish reasonable grounds. [44] The Crown does not necessarily rely on the CI to form the reasonable grounds, but more on the collective actions of theAccused, with others moving in and out of cars and homes and elsewhere, to establish reasonable grounds.

Defence [45] The Defence challenges the grounds mostly on the objective test, saying there is nothing compelling or credible about themany meets and greets. Citing the cases of Quilop, R v NO, and Uppal, Defence properly points out many of these interactions, onceisolated, are capable of an innocent explanation. Defence also points out none of these “interactions” surveilled or uncovered: drugs,cellphones, or any identifiable transaction with something specific exchanged. She refers to R v.

Tieu 2016 ABQB 344 (para. 96) to pointout the police grounds to arrest should include what the evidence says, but also what it does not say. Analysis [46] The Defence concedes that the short meetings are suspicious but not enough to give rise to reasonable and probable grounds.It is true that if these events are isolated and evaluated piecemeal, several if not many of these meetings are capable of innocentexplanations. But cumulatively, the picture is quite different. [47] Taken as a whole, and using the constellation method, all of the pieces add up to grounds that are reasonable.

The meetingswith unknown males and females are hard to explain in any other way. Indeed, and acknowledging this is not a mathematical exercise,the sheer number of these meetings: (1) indicates a pattern of buying or likely selling something, and (2) the constant repetition ofmeeting so many people, two with a criminal record, sets a pattern of questionable conduct that swamps any possibility of innocentexplanation.

The bullet points below paint a good picture of the events: • The Accused leaves the black Malibu and carries a black shoulder bag; • The Accused drives or has care and control over the black Malibu; • The Accused and an unknown male leave the residence and the unknown male has a black bag; they leave together in thevehicle; • An unknown male, buzz cut, brown hair and leather jacket enter the black Malibu passenger seat, and then the car leaves; • The unknown male leaves and the black Malibu does a u-turn; • The black Malibu parks in front of a different address.

The Accused leaves the car, goes into a home with unidentified male; andleaves 30 seconds later; • The black Malibu parks by a different car (Nissan) and an unknown female gets out of her car and into the rear of the Malibu andabout 30 seconds later gets out of Malibu and re-enters her car; • Two minutes later, another officer saw the black Malibu park in the middle of the road and pick up an unknown male with $20bills in his hand.

He gets in the back seat and the Malibu drove a short distance and dropped him off in an alley; • About 20 minutes later, the Accused and the co-accused leave the Malibu and go in a residence and leave 10 minutes later;

• The Malibu goes to the gas station where an unknown black male leaves the back seat; • The Malibu went to a business address and the Accused went inside and left two minutes later; • The Malibu parked in an alley elsewhere but with the same previously seen male enter and leave the car 20 seconds later; • The unknown male goes to a BMW, which car is checked on CPIC to be registered to one of the previously known criminals, associated by this surveillance to meetings with the Accused; • The Accused leaves and the Malibu does a “California lane change.” • The Accused is at Denny’s restaurant with an unknown male, standing by the driver’s door.

The Accused left Denny’s and put a bag in the trunk; • The Accused gets in the Malibu car and stops to interact with a man at a restaurant. Both leave. The other man gets in a BMW; • After this a different car is involved, a Taurus car, and that car is checked on the PIMS system and it belongs to the other known convicted person with whom The Accused interacts. The police watch the Malibu park by the Taurus which was occupied by an unknown driver and dog in the rear. The Accused exited the black Malibu, walked to the trunk of his vehicle, and retrieved the shoulder bag he previously placed in the trunk.

He then entered the passenger side front seat of the Ford Taurus. McDonald remained in the Taurus for approximately three minutes before exiting, placing the shoulder bag over his shoulder, and walking back to the Malibu.

Both vehicles drove away from the area; • The officer sees one of the previously known convicted men meet with the Accused at Denny’s restaurant; • Following a u-turn, the car parks in a different pub parking lot of the lounge; • Within minutes the Malibu, parks again by the Taurus and the Accused leaves and goes into the Taurus for a few minutes; • The Accused again meets with the co-accused and within seconds or minutes both individuals go in and out of car trunks; • The Accused and co-accused leave, go into their car, do a u-turn and return, and the Accused places something in the trunk; • The Accused parks the Malibu, leaves the car and walks a few steps to a residence, meets with an unknown male, and both go to the car with the unidentified man holding a plastic bag; • At this point the Affiant reviews a report from someone else relative to June 15, and; • At a different location the driver and passenger including the co-accused change places in the Malibu car; • Not long after that, the officer sees the car, the Accused leaves with another individual and a bag goes into the rear seat of the Taurus.

The Accused stays in the Taurus for a minute. Both cars left; • After a loss of continuity, and about 20 minutes later, the police see the other known convicted person drive the Taurus previously identified; • The Accused leaves the Malibu and walks to a residence with a bag. Both he and the co-accused enter the rear of the home; • The Accused and his co-accused get in the Malibu, and left 3 minutes later. They stop and an unknown female left her Ford Fusion and enters the Accused’s Malibu. She leaves the Malibu within two minutes. (The Fusion is a rental car).

Both cars left; [ 48 ] Taken as a whole, there were reasonable grounds for the arrest. The constellation of this factual matrix and surveillance evidence propping it up is instructive. First, the experience of the officer is relevant. This Affiant has 12 years of experience with the RCMP, five of which deal with organized crime and drug trafficking.

In the case of R v Wilson , 2012 BCCA 517 , leave to appeal to SCC refused, 35237 (November 17, 2013), Justice MacKenzie said this about police experience at para 21: In interpreting the Storry test, this Court has consistently held that an arresting officer’s personal experience is relevant to whether the officer’s subjective belief in grounds to arrest is objectively justified: R v. To (1998), 109 B.C.A.C. 242 ; R v. Juan , 2007 BCCA 351 , 222 C.C.C. (3d) 289; R v. Tran , 2007 BCCA 491 , 247 B.C.A.C. 109; R v. Luong , 2010 BCCA 158 , 286 B.C.A.C. 53.

At para 22, Justice MacKenzie also quoted R v To (1998), 109 BCAC 242 : For example, in R v. To , Madam Justice Ryan, for the Court, said: [11] As for the objective test I am satisfied that there is ample evidence to establish reasonable and probable grounds. The red Talon was engaged in activity which would baffle a layman. What was the vehicle doing in these brief, obviously prearranged street encounters? The police officers testified that they are aware, through experience, of a custom which has arisen in the drug trade which they describe as “dial-a-doper”. The activity of Mr. To fit that profile.

As Professor LaFave has described it – “Objective grounds must be measured from the standpoint of the officer with his skills and knowledge rather from the standpoint of the average citizen.” (LaFave W.R., Search and Seizure, A Treatise on the Fourth Amendment (3 rd ed.), vol. 2, p. 38).

Second, although no drugs, cell phones or transactions were seen, surveillance observations did include an unidentified male with a handful of cash; there were about 30 short meets or stops, with or without bags, getting in or out of trunks, and meetings with two men with convictions, one for trafficking and possession, albeit dated. The short stops were usually separated by minutes. Individuals were observed getting in and out of back seats, the driver and passenger switched seats, cars made u-turns or crossed four lanes of traffic, and

the car returned to the Accused’s former or current residence via the front or rear or garage, just to leave again, sometimes to pick uppeople or bags. What does an individual do with dozens of stops and short meetings such as these? As stated previously and even if the ITO reliance is placed on small pieces of the tip, (like the Accused drives a black Malibu car) thesum of all of the observations swamp the innocent explanation. In other words, on the objective standard, what is the reasonable personin the officer’s shoes to think?

In R v Rajaratnam, 2006 ABCA 333, the Court of Appeal said this at para 25 about the officer’sperspective: ... a judge is entitled to consider a police officer’s training and experience in determining objective reasonableness. See R v. Smith, 1998ABCA 418. 219 A.R. 109 at para. 30; R v. Sinclair, 2005 MBCA 41, 192 Man.R. (2d) 283 at para. 14. What may appear to be innocentobjects to the general public may have a very different meaning to an officer experienced in drug operations: R v. Kluczny, 2005 ABQB350, 385 A.R. 182 at para. 51. [49] In

summary, taken as a whole and in the cumulative, reasonable grounds to arrest existed objectively. Officers are entitled(and actually should) use their training to observe and derive conclusions from the cumulative collection of suspicious facts. And judges,when exercising evidentiary responsibilities, should not park our common sense at the courtroom door when considering the experiencedofficer’s conclusions: see R v Twohey, 2009 BCCA 428 at para 18. For these reasons, the arrest was lawful as was the search incident toit. Grant Analysis [50] The home search is different.

Because the officers searched the home without reasonable grounds to believe an offence wascommitted linked to the house, the evidence was obtained in a way that violates the Accused’s Charter rights and must be excluded. [51] In the Grant analysis I must consider the following three factors: 1. The seriousness of the Charter-infringing state conduct; 2. The impact of the breach on the Charter-protected interests of the accused; and 3.

Society’s interest in the adjudication of the case on its merits. [52] Then I need to apply a balance and ask myself: whether a reasonable person, knowing all of the relevant circumstances andthe Charter’s values, would conclude the admission of this evidence brings the admission of justice into disrepute? [53] First, regarding the seriousness of the State conduct. The ITO does not have to be a perfect document but it should haveincluded the fact that the CI was paid for his information. Far more important, I am concerned with the repeated conclusory statementsof the Affiant in paras 1 (Investigative

Summary) and 27 (Conclusion) where he believes trafficking occurred out of the 1010 residencewhen there was no evidence (cocaine, marijuana, scales, score sheets, phones, etc.) pointing to 1010 residence. There was no mention atall in the ITO of anything linking the 1010 residence to the Accused aside from the hospital trip with an unidentified woman, and thatwas from the garage, not the residence. I do not find this to be bad faith but it is misleading, conclusory, and careless. This factor favoursexclusion. [54] The impact on the accused’s Charter protected rights was serious.

The warrant allowed the search of the Accused’s residencewith no link, surveillance, or follow up to tie the activities to this residence which, again, was possibly a residence and, if so, a new co-tenant in that residence. Canadian’s homes require a high level of privacy and the accused’s privacy interest in a home is high: see Goreat para 100, Uppal at para 70, Gilmour at paras 71-72, Schmidt at paras 85, 105 and Hatton at para 4. As I said in Schmidt: [85] To be fair to police, I note they have to act quickly because drug arrests and what happens next to the accused and drugs, is allunpredictable.

However, entering a home on hunches without a warrant would not be the first option. The right to be protected againstunwarranted searches in one’s home is the hallmark of citizen privacy and with very few exceptions, some of which I have mentioned,home is a “man’s (or woman’

s) castle” and a warrant is needed to enter it. As our Court of Appeal said in R. v. Gomboc, 2009 ABCA276 , 460 A.R. 150: It has been famously said that “the state has no business in the bedrooms of the nation.” The actual prohibition is much broader: in oursociety, absent exigent circumstances, the state has no business in the homes of the nation without invitation or judicial authorization. This expectation of privacy in one’s home is encompassed with the constitutional protection to be free from unreasonable search andseizure.

Indeed, it ranks among the primary objects of s. 8 of the Charter of Rights and Freedoms. Courts have rigorously enforced thisprotection by requiring that the state leave the citizen in peace unless, in the opinion of a judicial officer, there is sufficient justification to intrude: Hunter v. Southham, (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, R. v. Kokesch, (SCC),[1990] 3 S.C.R. 3, 61 C.C.C. (3d) [...], R. v. Evans, (SCC), [1996] 1 S.C.R. 8, 104 C.C.C. (3d) 23, and R. v. Duarate, (SCC), [1990] 1 S.C.R. 30, 53 C.C.C. (3d) 1. The matter was recently discussed by Abella J. in R. v.

Patrick, 2009SCC 17 at paras. 78-79: The protection of privacy is a central feature of the Canadian constitutional system. In R. v. Dyment, (SCC), [1988] 2S.C.R. 417, La Forest J. wrote:

Grounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it isworthy of constitutional protection but it also has profound significance for the public order. The restraints imposed on government topry into the lives of the citizen go to the essence of a democratic state [pp. 427-28] The Supreme Court has consistently observed that the home is the most private of places. In R. v.

Silveira, (SCC),[1995] 2 S.C.R. 297, Cory J. wrote: “There is no place on earth where persons can have a greater expectation of privacy than within theirdwelling-house” (para. 140). And in R. v. Tessling, 2004 SCC 67 , [2004] 3 S.C.R. 432, Binnie J. referred to the home as “beingthe place where our most intimate and private activities are most likely to take place” (para 22). There is no question this factor also favours exclusion. [55] Finally, the adjudication of the case on its merits is also important.

The evidence is real (weapons and powder thought to becocaine) and with the societal problems of drugs and weapons on the rise, this factor favours the inclusion of this evidence. [56] When I balance the Grant factors against all of the circumstances, I find the evidence should be excluded. Heard on the 4th, 5th, 6th and 7th days of December, 2017. Dated and signed at the City of Calgary, Alberta this 15th day of December, 2017. W.A. Tilleman J.C.Q.B.A. Appearances: John A. Oman for the Crown Kaysi Fagan for the Accused