Alberta (Director of Law Enforcement) v Carpenter, 2021 ABQB 373

Court of Queen’s Bench of Alberta Citation: Alberta (Director of Law Enforcement) v Carpenter, 2021 ABQB 373 Date: 20210511 Docket: 2104 00179 Registry: Grande Prairie Between: The Director of Law Enforcement Applicant - and - William Carpenter Respondent _______________________________________________________ Decision of the Honourable Mr. Justice G.S. Dunlop _______________________________________________________ 1.

Overview [ 1 ] The Director of Law Enforcement applies for a community safety order with respect to a house William Carpenter owns in Grande Prairie, including the following terms: • termination of all tenancy agreements and leases; • eviction of all occupants; and • closure from use and occupation for 90 days. [ 2 ] The governing legislation is the Safer Communities and Neighbourhoods Act, SA 2007, c. S-0.5 . [ 3 ] The Director filed his originating application and supporting affidavits on April 1, 2021 and sent them by email to Mr. Carpenter on April 6, 2021.

The application was returnable April 12, 2021 in morning chambers. On April 12, 2021, Mr. Carpenter did

not attend in Court. The Director’s counsel and Kevin Stolth did attend. Mr. Stolth lives in the house. The Director sought an orderabridging the time for service on Mr. Carpenter, and Mr. Stolth sought leave to address the application. Neufeld, J. dismissed theDirector’s application to abridge the time for service and adjourned the originating application to May 3, 2021, granting leave to Mr.Stolth to address the originating application then, and setting a deadline of April 28, 2021 for Mr. Carpenter and Mr. Stolth to file andserve affidavits with any evidence they wished to rely upon.

No affidavits were filed by Mr. Carpenter or Mr. Stolth. [4] On May 3, 2021, the Director’s counsel and Mr. Stolth attended in morning chambers. Mr. Carpenter did not. I heardsubmissions and reserved my decision on the substantive issue regarding a community safety order. [5] At the beginning of the hearing, I raised a preliminary issue regarding service on Mr. Carpenter. The Director’s counselmade submissions and undertook to file additional evidence. Based on his representations that he sent Mr. Carpenter the originatingapplication and supporting affidavits by email on April 3, 2021 at Mr.

Carpenter’s request, and that he subsequently advised Mr.Carpenter by email that the application had been adjourned to May 3, 2021 with a deadline of April 28, 2021 for responding affidavits, Ifound service on Mr.

Carpenter by email likely brought this matter to his attention and on that basis, I validated service on Mr.Carpenter. [6] The issues on this application are: • are Mark Fussell’s opinions admissible? • is the hearsay in Mark Fussell’s affidavit admissible? • is the house habitually used for illegal drug consumption or trafficking? • is the community or neighbourhood adversely affected? • if the tests are met, what order is appropriate? [7] I find that Mr.

Fussell’s opinions are inadmissible because I can just as readily draw my own conclusions on the legal testsset out in the Act. [8] I find that, generally, the hearsay in Mr. Fussell’s affidavit which is not supported by direct evidence is inadmissible. Theexception is the hearsay evidence of two people who complained about Mr. Carpenter’s house. That hearsay evidence is admissiblebecause complainants under the Act must remain anonymous.

However, summaries of anonymous complaints is weak evidence, becausethe complainants have not sworn or affirmed to tell the truth, their actual words are not before the court, and they are not available to becross-examined. [9] Hearsay evidence in Mr. Fussell’s affidavit which is supported by direct evidence of other peace officers is admissible. Thehearsay in the documents attached to Mr. Fussell’s affidavit is admissible under statutory or common law exceptions to the hearsay rule. [10] On the admissible evidence, I find that the house is not habitually used for illegal drug behavior.

The essential first element ofthe test under the Act is not met. Therefore I need not consider whether the community and neighbourhood are adversely affected andthere is no factual basis upon which I could consider what order would be appropriate. 2. Opinion [11] Mr. Fussell’s affidavit includes a

section entitled “Experience and Qualifications” in which he describes his 25 years ofexperience as an Edmonton Police Service officer before becoming a peace officer with the SCAN (Safer Communities andNeighbourhoods) Unit of Sheriffs Investigative Services in 2014. That

section of Mr. Fussell’s affidavit concludes with the followingparagraph: 11. My opinions stated in this affidavit are based upon my training and experience while working with the SCAN Unit as well as myprevious training and experience listed above. [12] At several points in his affidavit, Mr. Fussell states his conclusion that the tests set out in the Act are met in this case. Forexample: 21.

At this point, I believe that the Property is habitually used for illegal drug activity, that the activity is having an adverse effect onthe community, and that a Community Safety Order (“CSO”) is necessary to bring some peace to the community. [13] Mr. Fussell makes similar statements in paragraphs 41, 58, 60, and 63 of his affidavit. [14] The Director’s counsel clarified in oral submissions that he is not seeking to qualify Mr. Fussell as an expert.

He said that Mr.Fussell can provide factual evidence regarding illegal drug use and trafficking, and counter-surveillance techniques, based on hisexperience as police officer. [15] As the Supreme Court of Canada wrote in R v Graat (SCC), [1982] 2 SCR 819 at para. 58: A non-expert witness cannot, of course, give opinion evidence on a legal issue as, for example, whether or not a person was negligent.That is because such an opinion would not qualify as an abbreviated version of the witness’s factual observations.

An opinion thatsomeone was negligent is partly factual, but it also involves the application of legal standards. [16] Whether the requirements of the Act are met and whether a community safety order is appropriate are issues for me to decide.

Mr. Fussell’s opinions on those points are not helpful to me. Furthermore, paragraphs 59 to 63 of Mr. Fussell’s affidavit, under the heading, “Conclusion” are, in substance, argument. Argument belongs in the submissions of counsel, not the testimony of witnesses. [ 17 ] It is one thing for Mr. Fussell to testify that what he and others observed at Mr. Carpenter’s house is consistent with past instances of drug trafficking and counter-surveillance which Mr. Fussell observed in other cases during his law enforcement career. That may be admissible evidence without Mr. Fussell being qualified as an expert.

I would not attempt to determine that issue without argument on both sides, which I do not have here. It is quite another thing for Mr. Fussell to testify that the activities at the property cause him to infer that it is habitually used for drug consumption and trafficking. That is a question for the Court to decide: Act , s. 7(1) (a). [ 18 ] I exclude from evidence Mr. Fussell’s opinions that the facts of this case meet the legal tests in the Act because that evidence is unnecessary and superfluous: Graat at para. 49 . 3. Hearsay [ 19 ] The Director seeks a final order.

Consequently, hearsay is not admissible: r. 13.18(3). The Director has not argued that any exception to the rule excluding hearsay applies here. There is no evidence that any of the people who actually observed things, most of whom are police officers or peace officers, are unavailable to provide affidavits. 3.1 police officers and peace officers [ 20 ] The Director has presented the entire chronology of this matter in an affidavit by Peace Officer Mark Fussell, including things Mr. Fussell did not observe or do personally.

In many, but not all cases, the Director has also submitted affidavits by others who swear or affirm that their observations and actions are accurately described in Mr. Fussell’s affidavit. In particular: • Constable Melanie McIntosh confirms paragraph 38 of Mr. Fussell’s affidavit. • Peace Officer Steve Ducharme confirms paragraph 40 of Mr. Fussell’s affidavit. • Peace Officer Travis Weleschuk confirms paragraph 40 of Mr. Fussell’s affidavit. • Peace Officer Enio Perizzolo confirms paragraph 40 of Mr. Fussell’s affidavit. • Peace Officer Karen Stenberg confirms paragraph 40 and 53 of Mr.

Fussell’s affidavit. • Constable Matthew Rypien confirms paragraph 45 of Mr. Fussell’s affidavit. • Peace Officer Andrew Albers confirms paragraph 53 of Mr. Fussell’s affidavit. • Peace Officer Karleen Schenkey confirms paragraph 53 of Mr. Fussell’s affidavit. • Peace Officer James Hart confirms paragraphs 53 of Mr. Fussell’s affidavit. [ 21 ] Based on the personal knowledge evidence provided in those supporting affidavits, the hearsay in Mr. Fussell’s affidavit in the paragraphs listed above is admissible. [ 22 ] James Hart in his affidavit also confirms paragraph 54 of Mr. Fussell’s affidavit.

However, based on that paragraph and the RCMP surveillance notes which are Exhibit D to Mr. Fussell’s affidavit, none of the information in paragraph 54 is within Mr. Hart’s personal knowledge. In particular, Mr. Hart did not participate in the surveillance described in Exhibit D and the search warrant described in paragraph 54(

e) was executed by the RCMP, not Mr. Hart. Consequently, paragraph 54 of Mr. Fussell’s affidavit is inadmissible hearsay. However the RCMP surveillance notes may be admissible. I will address all of the exhibits to Mr. Fussell’s affidavit later in this

section of my reasons. [ 23 ] Mr. Fussell’s affidavit includes in paragraphs 49, 50 and 51 information he received from Constable Jerimiah Jones and Sheriff Intelligence Officer Alex Nip. Constable Jones and Officer Nip did not provide affidavits. There is no evidence that they were unavailable to do so. The evidence at paragraphs 49, 50 and 51 of Mr. Fussell’s affidavit is inadmissible hearsay. [ 24 ] Mr. Fussell’s affidavit includes in paragraphs 35, 44, 48 and 52 information he received from Mark Sleiman who is an analyst with the City of Grande Prairie. Although Mr.

Sleiman has sworn an affidavit in which he states that his observations and involvement are accurately described in those paragraphs of Mr. Fussell’s affidavit, those paragraphs do not describe any observations or involvement by Mr. Sleiman. They describe things done or observed by others, mostly the RCMP. Consequently, the evidence in paragraphs 35, 44, 48 and 52 of Mr. Fussell’s affidavit is inadmissible hearsay. [ 25 ] Paragraph 55 of Mr. Fussell’s affidavit is a lengthy description of things done by the RCMP between January 29 and February 11, 2021.

Nowhere in that paragraph is any individual member of the RMCP identified except in the opening sentences, which read: On February 19, 2021, I received an email from RCMP Cpl. Jewer regarding the RCMP investigation that led to the execution of the warrant at the Property on February 5, 2021. From reading the email I learned the following: [ 26 ] Corporal Steven Jewer provided an affidavit in which he swears that his observations and involvement are accurately described in paragraph 55 of Mr. Fussell’s affidavit. However, the only thing Mr. Jewer is described doing in that paragraph is sending an email to Mr.

Fussell. If Corporal Jewer was involved in any of the things set out in sub-paragraphs a through g of paragraph 55, his

involvement is obscured by Mr. Fussell’s use throughout of “the RCMP” rather than a named individual. Paragraph 55 of Mr. Fussell’s affidavit is inadmissible hearsay. [ 27 ] Some of the evidence in paragraphs 35, 44, 48 – 52, 54 and 55 is referred to or summarized elsewhere in Mr. Fussell’s affidavit. I give that evidence no weight, wherever it occurs, because it is hearsay, and because there is no evidence that the people who actually made the observations are not available to give evidence themselves. 3.2 complainants [ 28 ] Mr.

Fussell includes in his affidavit information he obtained from two people who complained about Mr. Carpenter’s house to the Director. S. 31(1) of the Act prohibits the identification of complainants. Their evidence must come in through another person. On that basis, I find that the hearsay evidence of the complainants set out in Mr. Fussell’s affidavit is admissible because it is necessary. However, in the absence of an oath or affirmation to tell the truth, the actual words used by the complainants, and any opportunity for cross-examination, I give that evidence little weight.

As stated by Veit, J., in addressing an application under the Act : The evidence of anonymous complainants must, of course, be treated with circumspection: the inability to question the complainants leads to an inability to make final determinations about such matters as whether the fears of the neighbours are reasonable, or objective, or whether the fears are subjective and therefore an inadequate basis for changing the behavior of others. Alberta (Director of Law Enforcement) v CKCK Investments Inc. 2015 ABQB 614 at para. 40 3.3 documents [ 29 ] Mr.

Fussell attaches the following exhibits to his affidavit: • land titles certificate, exhibit A • Safer Communities and Neighbourhoods surveillance notes, exhibit B • Safer Communities and Neighbourhoods November 12, 2020 letter to Mr. Carpenter, exhibit C • RCMP surveillance notes, exhibit D • Emergency Medical Services records, exhibit E [ 30 ] The land titles certificate is admissible to prove that Mr. Carpenter owns the house: Land Titles Act , s. 62. [ 31 ] The surveillance notes made by Mr.

Fussell and his colleagues are admissible because the authors have provided direct evidence to the same effect. [ 32 ] The November 12, 2020 letter is admissible for the fact that it was sent and received, based on Mr. Fussell’s evidence to that effect, but not for the truth of its contents. [ 33 ] The admissibility of the RCMP surveillance records, in the absence of any of the authors providing evidence, is uncertain: Sopinka, Lederman & Bryant, The Law of Evidence in Canada , 5 th ed. (Toronto, Ont: LexisNexis Canada, 2018) at para 6.248 – 6.250. This issue was not argued before me.

For the purpose of these reasons, I assume those records are admissible. [ 34 ] The Emergency Medical Services records are likely admissible: Sopinka, Lederman & Bryant para 6.244 – 6.247. This issue was not argued before me. I assume those records are admissible. 4. Habitual Use for Illegal Drug Consumption or Trafficking [ 35 ] The Act provides in s. 7(1) two alternatives bases for the Director to seek a community safety order. The Director submits that he is basing this application on the first of these which is set out in s. 7(1)(

a) of the Act. Under that provision, I may make a community safety order if I am satisfied that: (

i) activities have been occurring on or near the property named in the application that give rise to a reasonable inference that it is being habitually used for a specified use, and (ii) the community or neighbourhood is adversely affected by the activities [ 36 ] The activities in issue are those that take place at or near Mr. Carpenter’s house. I must consider whether those activities give rise to a reasonable inference that the house is being used for a specified use and I must consider whether those activities adversely affect the community or neighbourhood.

The Director has put into evidence activities which occurred elsewhere, including what the Director submits is evidence of drug trafficking by Mr. Carpenter at a considerable distance from his house. Those activities are irrelevant to this application. The only thing I may consider, as s. 7(1)(

a) of the Act is worded, is activity on or near the property. [ 37 ] The standard of proof is balance of probabilities: Alberta (Director of Law Enforcement) v Ferguson 2011 ABQB 13 at para. 13 – 21 .

4.1 illegal drug behaviour [ 38 ] “Specified use” is defined in s. 3(1)(

e) of the Act and includes the following, which the Director is relying on in this case: (iii) the possession, growth, use, consumption, sale, transfer or exchange of a controlled substance, as defined in the Controlled Drugs and Substances Act (Canada) , in contravention of that Act. [ 39 ] The following activities at or near Mr.

Carpenter’s house are described in the evidence: • According to Complainant 1, as of August 2020 there were between 2 and 10 people living in the house at any one time, there were people often moving property in and out of the house and there were a lot of short duration visits to the house at all hours (Fussell affidavit, paragraph 29). • According to Complainant 1, the issues with the house had been going on for years and were still going on as of September 28, 2020, the house was a “party and flop house” which usually became more active after 8 pm, and recently a woman left the house, appeared “high” and started stripping in the yard (Fussell affidavit, paragraph 34). • On October 5, 2020 at about 4:45 pm a woman was rummaging through the driver’s area of a white Dodge Journey parked at the back of the house which was registered to MW (Fussell affidavit, paragraph 36). • On October 6, 2020 Constable McIntosh arrested MW and DR shortly after they left the house on charges arising out of activities that did not occur at Mr.

Carpenter’s house, and no drugs or drug paraphernalia were found in their possession when they were arrested (Fussell affidavit, paragraph 38). • According to Complainant 1, on or before October 8, 2020 there was a loud argument in the house which could be heard outside (Fussell affidavit, paragraph 39). • On October 8, 2020 at 11:23 am, Mr. Carpenter and DR left the house, got into Mr.

Carpenter’s white Dodge Ram and drove away, following which they did things that were not at or near the house (Fussell affidavit, paragraph 40). • According to Complainant 1, as of October 6, 2020 it was quieter at the house since a recent drug bust in Grande Prairie, with people still coming and going, but spending less time outside, and the owner not being around recently (Fussell affidavit, paragraph 37). • The RCMP searched the house on November 26, 2020 and found a small amount of crystal methamphetamine and drug paraphernalia but did not charge anyone with a drug offence (Fussell affidavit, paragraph 45). • According to Complainant 1, people started returning to the house about four hours after the RMCP search, including a person whose first name is Kevin, and, as of December 4, 2020 there were a lot of cabs arriving in the middle of the night with people to and from the house (Fussell affidavit, paragraph 46). • According to Complainant 1, as of January 25, 2021 the activity at the house was ongoing and busier than ever, there had been moving trucks at the house in the middle of the night, there was still a lot of arguing and people smoking in cars late at night and Complainant 1 had found “crack pipes” he or she believed came from occupants of Mr.

Carpenter’s house (Fussell affidavit, paragraph 47). • According to Complainant 2, as of January 2021, there were a lot of short duration visits to the house, mainly at night, with some of the visitors being regulars, but often being people not seen before, there was often loud music and noise from the house in early morning hours, and the police had been there a fair bit (Fussell affidavit, paragraph 30). • On February 9, 2021 at green Buick with a license plate which was not registered to the vehicle arrived at Mr.

Carpenter’s house at 11:23 pm and left at 11:27 pm (RCMP surveillance notes, exhibit D, p. 7 of 8). • On February 11, 2021 at 10:48 am Mr. Stolth arrived at the house and went inside followed by an unidentified woman who arrived and went inside at 11:24 am. Then, at noon, a man drove up, took a purse to the front door, which he gave to someone in the house. That man then drove away. At 12:21 pm Mr. Carpenter arrived in his white Dodge Ram Truck. He and Mr. Stolth left in Mr. Carpenter’s truck at 1:53 pm and drove slowly in a circuitous route through the area. Mr.

Fussell describes this as being consistent with counter-surveillance. This is in the context of Mr. Fussell having told Mr. Carpenter on November 13, 2020 that Mr. Fussell and his colleagues had conducted surveillance on Mr. Carpenter. At 2:44 pm Mr. Carpenter returned in his white Dodge Ram and dropped off a man and woman, following which he drove slowly out of the area (Fussell affidavit, paragraph 43 and 53). • On February 21, 2021 emergency responders were called to the house and examined a woman who said she had smoked an unknown opiate. She declined treatment and transportation to the hospital.

The emergency medical personnel observed drug paraphernalia in the house (Fussell affidavit, paragraph 57 and exhibit E). • According to Complainant 1 the “problems” were continuing as of February 23, 2021 and Mr. Stolth and Mr. Stolth’s girlfriend were routinely moving duffle bags between Mr. Carpenter’s house and another property in the neighbourhood at night (Fussell affidavit, paragraph 56). [ 40 ] Those activities do not give rise to a reasonable inference that Mr. Carpenter’s house is being used for any illegal activity other than the consumption of illegal drugs.

Complainant 1’s evidence that a woman started stripping in the yard in September 2020 or earlier is some limited evidence of drug use. Complainant 1’s evidence that he or she found “crack pipes” that he or she believed came from occupants of Mr. Carpenter’s house is of no weight in the absence of what was found, where it was found and what basis there is to believe it came from occupants of Mr. Carpenter’s house.

The fact that the RCMP found a small amount of crystal methamphetamine and drug paraphernalia in their search in November 2020, but did not lay any drug charges, is evidence of drug consumption around that

time. The strongest evidence of drug use in the house is the observation of drug paraphernalia by the emergency services personnel on February 21, 2021, and the statement by their patient that she had smoked an unknown opiate. None of the material before me is evidence of drug trafficking or any behaviour involving illegal drugs other than possession and use. [ 41 ] The RCMP observed a green car arrive at Mr. Carpenter’s house at 11:23 pm on February 9. 2021 and leave four minutes later. That is the only evidence, other than from the anonymous complainants, of any late-night visits to Mr. Carpenter’s house.

The only evidence that Mr. Carpenter’s property receives frequent late-night visits of short duration from numerous people comes from the anonymous complainants. This is a central fact on which the Director bases his argument that the house is used for drug trafficking. The argument is critically weakened by the weaknesses of the complainant’s evidence, being unsworn, not verbatim and not subject to cross- examination. [ 42 ] The absence of direct evidence of frequent comings and goings is a significant difference between this case and Ferguson .

In Ferguson the investigators made their own observations, which they provided in direct evidence to the Court: The investigators observed many of the same activities as had the complainants including dial-a-dope transactions, individuals leaving the property displaying sings of drug impairment, and a large volume of foot and vehicle traffic coming and going from the property. They also observed individuals, coming to and from the property, causing damage to the condo building.

Ferguson at para. 32 [ 43 ] In Ferguson the Director’s investigators conducted extensive surveillance including the installation of a camera in the hallway of a condominium building. Based on that evidence, Moen, J. concluded that there was a “seemingly unending stream of vehicular and foot traffic of visitors who stayed only for short periods of time”. Furthermore, the condominium unit owners, the Fergusons, admitted that “the use and sale of drugs was consistently occurring in the property”: para. 38. I have nothing like that evidence before me.

All I have are one four-minute visit at 11:23 pm on February 9, 2021, Mr. Fussell’s summaries of vague, anonymous statements by two complainants, and three specific instances of drug use spread over five months. [ 44 ] Furthermore, loud parties, numerous house guests and people coming and going at night, while perhaps consistent with drug trafficking, are not more consistent with that than with partying without trafficking drugs. [ 45 ] For the reasons set out above, an inference from the evidence before me that Mr.

Carpenter’s house is being used to traffic in drugs would not be reasonable; it would be speculative. 4.2 habitual [ 46 ] As set out in the previous section, the evidence supports an inference that Mr. Carpenter’s house has been used for drug consumption, but not drug trafficking. The next question is whether the evidence establishes that the house is habitually used for drug consumption. [ 47 ] “Habitually” is not defined in the Act.

The Nova Scotia Court of Appeal held as follows regarding its meaning in very similar legislation: With respect, the appellants' attachment to a dictionary meaning of "habitually" cannot succeed. The law requires - and the Chambers judge recognized - a more contextual approach. Certainly, the term would not describe an isolated incident or ancient history. On the other hand, the "continuance", "permanence" and "daily presence" which the appellants advocate, is not reasonable. Habitual use involves more than a discrete event. Occasional activity implying ongoing conduct would suffice.

In my view, it is unnecessary and unwise to say more by trying to provide an a priori definition of "habitually used". I agree with the Chambers judge when he said "Its [habitual] meaning will depend on the facts of each case." (para. 97 of decision). Nova Scotia (Director of Public Safety) v Dixon 2012 NSCA 2 at para 26 [ 48 ] I agree, but with this qualification: houses don’t have habits; humans do. A place is not habitually used unless a person uses it on multiple occasions. A single use is not habitual.

Here there is evidence that a woman “appeared high” and stripped in the yard in September 2020, that someone used illegal drugs in November 2020, and that a woman smoked an unknown opioid, perhaps in the house, in February 2021. That’s all there is. There is no evidence that the same person was involved in all three incidents. There is no evidence that any individual has used Mr. Carpenter’s house for drug consumption more than once. [ 49 ] Three isolated incidents, spread over five months, is insufficient activity from which to infer that Mr. Carpenter’s house is habitually used for illegal drug consumption. 5.

Adverse Effect [ 50 ] Given my finding that the activities at or near the house do not give rise to a reasonable inference that the house is habitually used for drug trafficking or consumption, it is not necessary for me to consider whether the community is adversely affected by those activities. 6. Appropriate Order [ 51 ] The requirements of s. 7(1)(

a) of the Act are not met. I have no authority to grant an order, and I do not have facts upon which I could fashion an appropriate order.

7. Disposition [ 52 ] The originating application is dismissed. As Mr. Cameron did not participate at all and as Mr. Stolth represented himself, neither is entitle to costs. The Director shall bear his own costs because he was unsuccessful in his application. Heard on the 3 rd day of May, 2021. Dated at the City of Grande Prairie, Alberta this 11 th day of May, 2021. G.S. Dunlop J.C.Q.B.A. Appearances: John-Marc Dube Alberta Justice and Solicitor General for the Applicant Kevin Stolth Self-Represented Litigant