R. v. Pipping et al. Date:, 2017 BCPC 373

Citation: R. v. Pipping et al. Date: 20171116 2017 BCPC 373 File No: 213677-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. SCOTT THEODOR PIPPING and ADAM ROSS SUMMERS RULING ON VOIR DIRE No. 2 OF THE HONOURABLE JUDGE G.S. GILL Counsel for the Crown: J.M. Le Dressay Counsel for Mr. Pipping : N. Cobb, R. Basra, J. Hung Counsel for Mr. Summers : M. Sandhu Place of Hearing: Surrey , B.C. Dates of Hearing: March 8, 9, 10, 28, 29, 30, 31, July 17, 18, 2017 Date of Judgment: November 16, 2017

[ 1 ] The accused Pipping and Summers are charged on a total of 27 counts with trafficking, possession for the purpose of trafficking, and production of controlled substances contrary to ss. 5(1), 5(2) and 7(1) respectively of the Controlled Drugs and Substances Act.

They are also charged with offences relating to the unlawful possession of various firearms. [ 2 ] A prior Ruling addressed the validity of a general warrant to search one of the three properties related to these proceedings. [ 3 ] This Ruling, Voir Dire No. 2, deals with various issues including those set out in the defence Charter Notice filed on January 27, 2017, alleging Charter breaches relating to the issuance and execution of three search warrants issued on March 16, 2016, pursuant to the Controlled Drugs and Substances Act , and the related filing of Form 5.2 Reports to a Justice pursuant to s. 490 of the Code .

It also addresses the warrantless arrest of the accused, their search incidental to arrest and their alleged breach of right to counsel. [ 4 ] The Charter Notice also alleges breaches relating to the search warrants granted by Judicial Justice Hayes on March 30, 2016, for BCLP BL694V and for cell phones seized from the accused, and to a search warrant granted by Judicial Justice Lindsey on April 26, 2016 in relation to electronic and storage devices.

Here I note that neither the actual source material used for the March 30 and April 26 warrants, nor the warrants themselves, were placed before me, nor were any submissions made specifically directed to these warrants. However, the defence submitted in its Charter Notice that to the extent the March 30 and April 26 warrants relied on essentially the same source material as did the March 16 warrants, the outcome of any ruling on the earlier warrants should be taken to also apply to the later ones. The Crown did not appear to object to proceeding on this footing.

Overview [ 5 ] In March of 2015, the Delta Police department commenced an investigation into a suspected dial-a-dope operation in the South Delta area. This was initiated by information received by police which included three informants identifying a particular telephone number, residence and named individual associated with the operation. [ 6 ] A number of people were eventually identified as being associated to the operation.

Police officers, posing in an undercover capacity and making use of the identified telephone number, made a number of hand-to-hand drug purchases from some of these individuals during and between the months of September 2015 and March 2016. [ 7 ] In the course of their undercover purchases, police in January 2016 eventually came to meet the accused Summers, who identified himself as the manager of the dial-a-dope line.

In similar fashion, they subsequently met the accused Pipping who they came to believe, based on informant information and their dealings with him, as being Summers’ boss. [ 8 ] Surveillance by police identified three particular locations where police determined that evidence of trafficking and of possession for the purpose of trafficking in a controlled substance would be found, namely at: 1. A condo located at Suite 407 – 6893 Prenter St., Burnaby; (“Prenter property”); 2. A condo located at Suite 415 – 10880 No. 5 Rd., Richmond; (“Richmond property”); and 3.

A house located at 7053 – 177A St., Surrey. (“Surrey property”). [ 9 ] Search warrants were obtained for all three locations on March 16, 2016 for execution on March 17. [ 10 ] On March 17, immediately prior to execution of the search warrants, police engaged in a final undercover narcotics transaction with both accused together.

After concluding the transaction, police then followed the car occupied by the accused for a short distance after which they were pulled over for an alleged traffic violation, where they were then arrested at the roadside on Canada Way, near Kensington Avenue in Burnaby. [ 11 ] The accused were Chartered , warned and searched incidental to arrest. A number of cell phones and other items were seized from them and from the car. [ 12 ] Searches of the three locations were conducted simultaneously with the arrest of the accused.

A number of items of contraband and other items were seized as noted in the exhibits filed in the proceedings. [ 13 ] Police explained that they did not provide the accused with immediate access to counsel, because they wanted to first complete the searches in order to preclude the accused from alerting anyone in a fashion that could put officer safety or the preservation of evidence at risk. [ 14 ] The accused were transported from the arrest location in Burnaby to the main police detachment in Surrey where they were provided access to counsel.

The Search Warrants [ 15 ] Police prepared two Informations to Obtain (“ITOs”) in connection with the warrants to search the three aforementioned locations. One ITO, Exhibit 2, dealt with the Prenter and Surrey properties. The other ITO, Exhibit 3, dealt with the Richmond property. [ 16 ] Because they rely essentially on the same body of investigative police work the two ITOs are substantially, although not entirely, the same. For that reason, a number of issues to be addressed will apply to both documents.

Additional remarks will be provided where they are needed to address specific issues arising in either of them, but not the other. Unless otherwise specified, where I refer to the ITO in the singular, my observations apply to both of them.

Grounds to Issue and to Review an Authorization to Search [17]

Section 8 of the Canadian Charter of Rights and Freedoms provides as follows: Search or Seizure 8. Everyone has the right to be secure against unreasonable search or seizure. [18] In R. v. Collins, (SCC), [1987] 1 S.C.R. 265 (S.C.C.), the Court summarized the proper approach to search andseizure cases at para. 23: [23] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search wascarried out is reasonable. [19] The test for issuance of an authorization to search in this case is that there must be a credibly based probability, set out in theITO, 1. That the accused have committed the offence(

s) of trafficking in a controlled substance or possession of a controlled substancefor the purpose of trafficking; 2. That evidence of the offence(

s) will be found at the locations sought to be searched. See in this regard R. v. Morelli, 2010 SCC 8, para. 39: [39] Under the Charter, before a search can be conducted, the police must provide "reasonable and probable grounds, established uponoath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. SouthamInc., (SCC), [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the"minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168). [20] In R. v.

Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539 (N.S.C.A.), the Court set out some of the elementsgoing to a credibly based probability at p. 549: [30] Without attempting to be exhaustive, it might be helpful to summarize, briefly, the key elements of what must be shown to establishthis "credibly based probability": (

i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that anoffence has been committed, that the things to be searched for will afford evidence that the things in question will be found at a specifiedplace: R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen.

Div.), at 365. (ii) The information to obtain as a whole must be considered and peace officers, who generally will prepare these documents withoutlegal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage": Sanchez, supra, at 364. (iii) The affiant's reasonable belief does not have to be based on personal knowledge, but the information to obtain must, in the totality ofcircumstances, disclose a substantial basis for the existence of the affiant's belief: R. v.

Yorke (1992), (NS CA), 115N.S.R. (2d) 426, 77 C.C.C. (3d) 529 (C.A.); affirmed (SCC), [1993] 3 S.C.R. 647, 84 C.C.C. (3d) 286. (iv) Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is tobe assessed in light of the totality of the circumstances. The relevant principles were stated by Sopinka J. in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at pp. 1456-1457, 60 C.C.C. (3d) 161: (

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

a) the degree of detail of the "tip"; (

b) the informer's source of knowledge; (

c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) the results of the search cannot, ex post facto, provide evidence of reliability of the information. [21] The basic test for review of the validity of an authorization to search is prescribed in a number of cases starting with R. v.Garofoli, (SCC), [1990] 2 S.C.R. 1421, para. 56: [56] The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was beforethe authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. [22] A mere suspicion does not amount to a credibly based probability. A helpful description is found at HMTQ v.

The CanadianBroadcasting Corporation et al., (ON SC), [1992] O.J. No. 2229, where at p. 6 Moldaver J. (as he then was) writes:

Since the test is that of "reasonable probability", it becomes apparent that mere suspicion will not satisfy the minimum requirementscontained in s. 487(1)(b). The Supreme Court of Canada made this clear in Hunter v. Southam Inc. (1984), (SCC), 14C.C.C. (3d) 97, 11 D.L.R. (4th) 641, 2 C.P.R. (3d) 1 (S.C.C.) at pp. 114-5. Thus, an information to obtain a search warrant which raisesmere suspicion as to the existence of the material being sought at a specific location will fail.

Similarly, an information which raisesmere suspicion that the material being sought will afford evidence with respect to the commission of the offence or offences specified inthe warrant and information will likewise fail. Review of the ITOs [23] There are a number of issues that the defence has raised which go to the sufficiency of the ITOs, as well as going to the processitself.

Defence says the ITOs referenced content that was irrelevant or prejudicial, not properly sourced, conclusive or narrative innature, omitting relevant information, having unreliable informant information, was misleading, gathered in breach of the Charter, andwas subversive of the process.

Factual Sourcing, Boilerplate and Prejudicial Material [24] Assertions in an ITO must necessarily be tied to an investigative resource, and should, unless doing so would jeopardizeidentification of a confidential informant, provide sufficient detail so as to not amount to a mere conclusion drawn by the affiant. [25] A good statement of this requirement is found in Re Criminal Code, [1997] O.J. No. 4393, para. 8: [8] Firstly, and most importantly, any factual assertion by the applicant within the four corners of the affidavit must be sourced to someinvestigative resource.

Otherwise, the applicant breaches what is sometimes referred to as the rule against narrative. It is insufficient foran applicant to simply state conclusions, opinions and facts without providing the court the source or origin for such conclusions,opinions or facts.

The credibility and reliability of the assertions are inextricably linked to the investigative resources themselves. [26] The defence was critical of the affiant making what are said to be bald conclusory statements and setting out general drugtrafficking behaviour or methodology without linking same to the accused as a basis to support issuance of the authorizations to search. A prominent example cited occurs at para. 191 of the ITO, where the affiant, Cst.

Formby states a belief that individuals such as theaccused involved in high volumes of drugs and money, … frequently store drugs in multiple places to avoid large seizures by police or from competing groups "ripping" them (stealing theirmoney, or drugs through break and enters or robberies often involving the use of firearms or weapons).

Stash sites change frequently andfor that reason, I believe that both T4-SUMMERS and T10-PIPPING keep drugs, ledgers, money, and weapons at multiple locations sothat if one residence is searched by police or "ripped" they have additional supplies to rely on to keep the dial a dope operation going. Ialso know that mobility is essential for managers and bosses, and for that reason I believe that both T4-SUMMERS and T10-PIPPINGkeep the above-mentioned supplies necessary to perform their job with them at their primary residence, in the event they need to re-loador deal with something expediently.

I also believe it likely that weapons may be located in any of the above mentioned properties. Due tothe ongoing violence surrounding that street level drug trade, I believe that runners and specifically managers and bosses are aware of thepossibility of violence. [27] In my view, the foregoing statement has a foundation. At para. 2 of the ITO, the affiant sets out his considerable experience andknowledge about dial-a-dope operations and his various educational training as well as his roles in investigating them.

This qualifieshim to make statements of the type set out in para. 191 of the ITO, to be considered not in isolation but in conjunction with any othermaterial therein for an overall assessment by the issuing Justice as regards the existence, or not, of a credibly based probability to issue. [28] In paras. 3 to 7, inclusive of the ITO, the affiant sets out a number of sources that are relied on in putting together the material.

This includes personal knowledge as well as information received from other identified sources, including various police databases, aswell as on information and belief derived from other police members or individuals. This would, of course, also include confidentialinformants later referred to in the ITO. [29] The defence asserts that the ITO contains allegations that are unproven, vaguely sourced or inappropriately summarized.

Muchof this was done, it is said, using repetitive style, or “boilerplate” language that is said to only increase the prejudicial impact calculatedto have against the accused and others mentioned as their associates, in the eyes of the issuing Justice. [30] Concerns regarding excessive use of boilerplate were clearly summarized in Re Criminal Code, at para. 9, as follows: [9] Secondly, the application affidavit/information must be reasonably comprehensible. This factor engages a consideration of such sub-factors as organization of the document, spelling, grammar, punctuation and language, including word choice.

As with the text of anydocument, meaning and understanding can be impaired by defects in these respective subject areas. In some instances, the number andseverity of such defects may render the document confusing and incomprehensible. The court should not find itself in a position ofendlessly re-reading the application document in order to discover whether the statutory pre-conditions are satisfied. I accept that insome cases the complexity of the investigation and the relevant quantity of investigative data will contribute to a lengthy applicationdocument.

However, the creation of undue complexity and unnecessary length in the application document can obscure, even forsophisticated readers, the presence of all necessary pre-requisites. The inherent danger is that one or more of the orders sought will issuedespite the absence of a valid supporting record. [31] The use of unproven offences or otherwise unfairly prejudicial information was discussed by Mr. Justice McKinnon in R. v.Nguyen, New Westminster Docket X072814, July 26, 2010, at paras. 18 to 21: [18] Courts have commented about the extent to which prior offences ought to be considered in ITOs. In R. v.

Hutchings, (BC CA), [1996] B.C.J. No. 3060, McEachern C.J.B.C., although dismissing an appeal by an offender, stated in para. 33: 33 ... I would not approve the practice of including dismissed charges in an information.

[19] It seems to me that reference to instances where no charges were laid is equally objectionable. [20] In Re Criminal Code , [1997] O.J. No. 4393 , Hill J. described the practice of including information about "investigations and charges which did not result in criminal convictions" as "prejudicial and irrelevant". He conceded that in some instances such information might have validity to establish a relationship with an address or prior association between named individuals.

That does not appear to be the purpose for inclusion at bar. [21] I accept that the affiant stated in para. 7 that charges were "still outstanding" which was a true statement. However, one has to appreciate that the presumption of innocence was never displaced. Thus, there was no reasonable use or inference that the Judicial Justice of the Peace could have made of that information save in a way prejudicial to the accused. [ 32 ] Regarding appropriate sourcing, the defence asserts there to be no adequately sourced material in the ITO upon which Mr. Pipping could be identified.

It would appear to me there is such material. [ 33 ] Mr. Pipping’s identity is established through police observations of his operation of the Porsche motor vehicle registered to his mother. He is also identified, via confidential informant information identifying the supplier of the drug line in question as an individual with a street name known as “Fee” (phonetic), by police intelligence referred to in the ITO linking Mr. Pipping to the street name, “Fee”, and Mr.

Pipping introducing himself to undercover officer Masales on March 4 using the same street name. [ 34 ] Furthermore, a BC Driver’s Licence photograph of Mr. Pipping, to be used on the target sheet and for investigative purposes only as amplified by Cst. Cessford and Cst. Formby on cross-examination, was obtained by police from the Motor Vehicle Branch. Other photos of Mr.

Pipping, described as “open source” photos were also obtained and used. [ 35 ] Defence also takes issue with the conclusions formulated at para. 190 of the ITO as being not sufficiently sourced, conclusive, or otherwise unsupported factually within the ITO. Para. 190 asserts a belief by the affiant that Mr. Pipping is the boss of the drug line managed by Mr.

Summers, and that Pipping is supplying drugs to the South Delta area. [ 36 ] The basis for that belief by police is attributed to knowledge of a February 26, 2016 meeting between UCO Masales, posing as a Kamloops drug line manager, and both of the accused, wherein they discuss availability of large amounts of cocaine and heroin, as well as pricing and delivery times. This was taken as corroborating prior information from a confidential informant, to the effect that a person named “Fee” (phonetic) was supplying drugs to the South Delta area.

I would add that much of the discussion about amounts and pricing held with UCO Masales appears to have been led by Mr. Pipping as opposed to Mr. Summers, thereby also supporting a reasonable inference of his higher position relative to Summers. [ 37 ] I would note there is also other material in the ITO from which it could be inferred that Mr. Pipping enjoyed a position superior to that of Mr. Summers in their dial-a-dope operation. Paragraph 154 describes the March 4 purchase by UCO Masales of five ounces of cocaine for the sum of $10,500.00. During that transaction, the ITO sets out that while Mr.

Summers was relegated to counting the money, it was Mr. Pipping who carried the conversation with UCO Masales regarding the availability and pricing of other narcotics products, and of products in higher quantities. Mr. Summers also sought confirmation from Mr. Pipping whether the amount of currency he had counted out, in the amount of $10,500.00, was the agreed price. And finally, it was Mr. Pipping and not Mr.

Summers who provided the assurance that were UCO Masales to ever be unhappy with any particular product purchased, he could exchange it for something else. [ 38 ] At para. 173 of the ITO, police also set out information received from a confidential informant that (by reference to their street names) Mr. Summers worked for Mr.

Pipping. [ 39 ] Despite the defence objection to paragraph 24(a), I see nothing wrong with it, because it clearly lists a source (a police database), and a linkage to an occupant of a specific residence under scrutiny, casting light on why police initiated an investigation at that specific residence. [ 40 ] That said, I agree there are a number of references to conclusive, poorly sourced and unproven allegations or beliefs that ought not to have been included in the ITO, and I set those out below: • I agree that the portion of paragraph 30 (

f) that refers to Adam Summers as a person "who I know to be a local dial a dope drug trafficker”, as well as a similar reference to another individual should be excised. • Paragraph 31 (e), referencing a CPIC query revealing the accused, Summers, to be awaiting disposition for a theft and a mischief charge should be excised as it relates to possibly unproven allegations, it not being clear what the affiant meant by “awaiting disposition”. • Paragraph 31 (f), referencing a PRIME (police database) query of Summers revealing “several drug files where Summers is suspected of trafficking” should be excised. • Paragraph 32 (

e) stating a PRIME query of a named individual revealing several drug files where he is suspected of trafficking should be excised. • Paragraph 33 (

d) referencing certain individuals as known drug users is insufficiently sourced and should therefore be excised. • Paragraph 48 (

d) mentions PRIME files “associated” to a vehicle. • Paragraph 48 (

e) mentions a PRIME query of a named individual as revealing several drug related files including marihuana production and suspected trafficking. Both of these should be excised as being inappropriately vague, insufficiently sourced and unproven.

• Paragraph 52 (

c) referencing the named individual as a suspected drug trafficker must be excised. • Paragraph 55 (d), (e), (

f) and (

g) must be excised as being inappropriately vague and in the context as related, prejudicial to the named individual. • Paragraph 57 (

b) alleging Summers and another to be “engaging in activity consistent with drug transactions” must be excised as purely conclusive, without having laid any factual observations to support such a conclusion and as such must be excised. • Paragraph 65 (

e) referencing the named individual to PRIME data revealing “several cause a disturbance files and files where small quantities of marihuana were located in vehicles he was operating” should be excised as being inappropriately vague, conclusive and prejudicial. • Paragraph 81 (a), naming an individual as having an “extensive PRIME history for driving, assault, property and drug related offences” is vague as to what is meant by “history” and should therefore be excised. • Paragraph 83 (f), naming an individual as having an “extensive PRIME history for drug related files including production and trafficking and associations to high level drug targets” must be excised for being vague and insufficiently sourced. • Paragraph 102 (

d) and 104 (d), naming an individual as having an extensive PRIME history for drug trafficking is vague, not sufficiently sourced and prejudicial. • Paragraph 121 (

e) naming an individual having a PRIME query revealing “three possession of cannabis files, none resulting in charges” again refers only to matters suspected or investigated, but not proven and is therefore unfairly prejudicial. • Paragraph 122 (

e) referencing a PRIME query of a named individual revealing “extensive history for drug trafficking” is inappropriately conclusive, not sufficiently sourced, unproven and prejudicial. • Paragraph 125 (

e) mentioning an individual as having been “arrested for PPT in 2010 but not charged” will be excised as prejudicial. • Paragraph 135 (

d) mentioning a “PRIME file of interest associated to the vehicle where Scott Pipping was identified as the driver” is meaningless and should be excised. • Paragraph 135 (

e) mentioning a PRIME query for Pipping revealing “an extensive history for drug trafficking and gang related files” is vague, inappropriately sourced and conclusory, unproven and prejudicial. It should be excised. • In paragraph 160 (

d) the reference to a named person being “a PRIME associate” of another named person should be removed for being inappropriately vague, conclusory and prejudicial. • Finally, paragraph 162 (

d) and (e), referencing the named individual being suspected of involvement in the production of synthetic drugs and having a history for drug trafficking and gang related files must be excised on the same basis as those above. [ 41 ] Overall, while I agree ITOs of this type can be complex documents, given their broad scope, I disagree with the defence contention that the ITO in question is so chaotic or otherwise excessive in its use of boilerplate language that it calls for a remedy.

Informant Information [ 42 ] The defence submitted, briefly, that the information in the ITO derived from confidential informants was so excessively redacted that it was impossible to determine what evidential value to ascribe to what was left. Here I note only that this information would have been before the issuing Justice and that I find no basis to conclude other than that the redactions as done were needed. According to the testimony of Cst.

Formby, some of the previously redacted material was un-redacted after consultation with Crown counsel. [ 43 ] Regarding the role played by informants’ information in the ITO, the defence has not suggested any basis upon which it could be said the informants’ identities should have been revealed. The issue rather seems to be that of the reliability and sourcing of the information obtained from them. It goes without saying that sourcing, where it may reveal the identity of the informant, need not be revealed and should be redacted.

As well, the applicant must make full and candid disclosure regarding any knowledge about an informant’s reliability both generally as well as with respect to the specific items of information offered by that informant. All of those steps appear to have been observed in the subject ITO. Strategic or Misleading Omissions [ 44 ] Defence argued there to be a number of areas where the affiant failed to make full, frank and fair disclosure as required. This duty was described in R. v.

Morelli in the following terms at paras. 58 and 59: [58] In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not.

Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed. [59] The relevant question here is whether the ITO was misleading, not whether it was intentionally [page 277] misleading.

Indeed, in the Court of Queen's Bench, the judge who had the benefit of observing the Crown's witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed. It is nonetheless evident that the police officer's selective presentation of the

facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time. [ 45 ] Defence argued the affiant should have, but failed to mention in the ITO supporting the search of the Prenter property that Mr. Pipping was only observed to enter unit #407 on one occasion. I believe that to be self-evident from the ITO and need not be explicitly stated. [ 46 ] It was argued, the ITO should have contained a better description of the Burnaby condo complex in which unit #407 was located.

I find the description of the premises at para. 148 of the ITO to be entirely adequate for the purposes of considering the application. That paragraph describes the building as follows:

a) Ventura is a 4 level condo containing 96 suites built in 1999;

b) Key access only;

c) Open access once inside;

d) No video surveillance. [ 47 ] The affiant failed to mention in the ITO that Mr. Pipping and the unknown female smelled strongly of marijuana when he was seen keying into Unit #407 at the Prenter property. This was elicited during his testimony.

Even though this would be an observation possibly more likely to support issuance of the authorization than to detract from it, I agree that it should have been included in the ITO for the Prenter property and as such should be now read into it. [ 48 ] Police failed to ever detect any sounds or odours indicating drug related activity within the Prenter and Richmond property condo complexes. In my view, the absence of this observation in the ITO speaks for itself and it cannot be regarded as a strategic or misleading omission.

The inclusion of this observation in the ITO would have simply made explicit what was implicit by its absence, and its inclusion would not have avoided inferences that might have otherwise been drawn. [ 49 ] When observed on the single occasion keying into unit #407 at the Prenter property, the ITO failed to state that Mr. Pipping did not appear nervous or otherwise acting in any suspicious manner, and that nothing was known about the female accompanying him. This is yet another example of what the defence asserts is a positive duty to state that which was not observed, as opposed to what was observed.

I cannot see how the failure to include an observation that Mr. Pipping did not appear nervous to be relevant or necessary to include in the ITO. It cannot be reasonably advanced that this omission invited the drawing of inferences that could or would not have been drawn had that particular observation been included. [ 50 ] The ITO failed to state the female accompanying Mr. Pipping did not have any PRIME derived information.

It seems to me there would be no reason to do so, given the police were not able to even identify who she was and never saw her again. [ 51 ] Defence asserted that in order to mask what was described by defence as comparatively weaker grounds to search #407 at the Prenter property, the affiant strategically omitted to include in the Prenter ITO that unit #415 at the Richmond property had been specifically linked to the accused, Summers.

Although the affiant agreed this information was not included in the ITO, he was not sure if he knew that information at the time of swearing the ITO, although he did agree that Cst. Cessford would have shared that information with him. [ 52 ] Given Cst. Cessford’s testimony that he inadvertently saw Summers’ link to unit #415 on the manager’s computer screen on March 2, and that he actually observed Mr.

Summers keying into that unit on March 9, I conclude he likely advised the affiant of these observations by the time of the March 16 swearing of the ITOs to search the three properties, including the Prenter property. While I accept the affiant’s explanation as to how this omission may have arisen, I nonetheless agree this information should now be read into the ITO. [ 53 ] Police having retrieved owner/occupant information for #407 on March 15, and noting at para. 167 of the ITO that the owner was one Mani Ranjbar, who bought the suite in 2010 for $300,000.00 cash, the affiant failed to add that neither Mr.

Pipping nor Mr. Summers had been linked via any owner/occupant records to this suite, nor linked to Mr. Ranjbar, even though police knew that Mr. Summers was renting unit #415 at the Richmond property in his own name. The defence says this was a strategic omission designed to mislead the issuing Justice into thinking the case for searching unit #407 to be stronger than it might otherwise be.

I do not make those connections and doubt that inclusion of the missing information would have increased the likelihood of the issuing Justice doing so. [ 54 ] Defence asserted the affiant should have included in the ITO additional steps police ought to have taken to follow up on this information about the owner of unit #407 of the Prenter property. I agree that if the police had any such follow-up information, they ought to have included it in the ITO; however, I do not agree that they were necessarily bound to take those additional investigative steps, based on the observations made and the information at hand.

Credibly Based Probability for Drug Dealing [ 55 ] There is, for the purposes of this voir dire a significant body of evidence supporting a credibly based probability that both Messrs. Pipping and Summers were engaged in high level trafficking of significant quantities of narcotics.

This is based on a number of hand to hand transactions involving one or both accused with various undercover officers in which significant quantities of narcotics are either sold to the undercover officers, or there is a discussion with respect to their ability to supply almost any narcotics wanted, and in very high-quality. [ 56 ] The accused are seen carrying pails on one occasion to the Prenter address from the Richmond address, immediately following a very important meeting with an undercover officer on February 26, and they are seen directly transporting from the Prenter property a bag of the type containing narcotics then sold to an undercover officer, and then taking back a bag of money in the same bag given to

them by police to the Prenter property. They essentially admit to the undercover officers that they are high-level dealers, with Mr. Summers at one point bragging they can get anything the buyer wanted and Mr. Pipping confirming the same, and Mr.

Summers noting that he operates up to seven or eight different cell phones, some with multiple SIM cards. [ 57 ] What the accused take particular issue with is what they say is a lack of sufficient evidence upon which a Justice could conclude that any such allegedly illicit activity was in any way connected to any of the three locations that were searched. [ 58 ] The ITO states at para. 191, that based on the affiant’s experience in these types of matters, a belief that drug dealers engaged in the volumes observed to be facilitated by these accused require multiple locations to store their drugs, as well as to store related ledgers, money and weapons to avoid detection by police and to keep their operations going in the event that any one location should become compromised. [ 59 ] While the affiant is certainly in my view qualified to make such a statement, it must be kept in mind that this general belief does not, of itself, establish a connection to any particular property. [ 60 ] I will now examine the sufficiency of the grounds for the warrants to issue in respect of the three properties in issue, based on the ITOs as reduced and amplified earlier in these reasons, as well as on any further findings outlined below.

The Surrey Property [ 61 ] The primary basis for police seeking the authorization to search the Surrey property is Mr. Pipping's association to that residence, his attendances there and the fact that he had at one time taken out a licence to legally grow marijuana at that property but had apparently never followed up to actually grow anything there. [ 62 ] The ITO notes at para. 144 the existence of two files on PRIME linking Mr. Pipping to that property.

No further details are provided regarding the PRIME derived information, rendering it essentially of no value other than to explain why the residence was selected for surveillance. [ 63 ] Para. 144 of the ITO further states that during a Surrey by-law inspection of the residence conducted in April 2015, Mr. Pipping told the inspector that he was the owner’s son, but that he had never set up a grow in the house. According to the inspection report no indicators of a growing operation were observed. [ 64 ] The ITO also contains police observations of some of Mr.

Pipping’s associates from time to time visiting with him at the residence. [ 65 ] The ITO also mentions the police observation of video security cameras at the residence. [ 66 ] It was also noted in the ITO that the Porsche motor vehicle operated by Mr. Pipping, and registered to his mother, did not list the Surrey property as the address on the vehicle registration, but rather a different residence entirely. As well, Mr.

Pipping was never observed to have stayed overnight at the Surrey property. [ 67 ] Other than the foregoing, there is really nothing in the ITO supporting any connection or inference that any evidence proving the commission of the alleged offences might be found at that residence. For example, there is no suggestion that Mr. Pipping was seen bringing any suspicious items into or out of that residence.

There is no suggestion that he or his associates were seen going directly to or from that residence, either to or from any of the other locations under surveillance, or to or from any narcotics related dealings. [ 68 ] Para. 144 of the ITO itself is prefaced with the heading, “ 7053 177A St., Surrey (PIPPING’s suspected residence) .” On this basis, I question even the basis for police believing this to be his residence, much less anything else. [ 69 ] All the ITO, after reduction and amplification, therefore, really discloses is that the Surrey residence was a place owned by Mr. Pipping’s mother, where Mr.

Pipping and some of his friends or associates visited from time to time, that it had security cameras, and that marihuana was at a prior date legally licenced by Mr. Pipping to be grown there, but never was. [ 70 ] In R. v. Le and Liu , 2014 BCAA 166, the police had ample proof the two accused were dealing in drugs, including with a third man, known as Greek Peter, at whose residence on a few occasions they were seen returning from and travelling directly back to their own residence. They were never seen travelling from their own residence to Greek Peter’s.

Without more, it was determined on appeal that the authorization to search the residence of the accused was issued without any reasonable basis to believe that evidence of drug trafficking would be found there. [ 71 ] The grounds set out in the ITO for the Surrey property are only marginally more than those described in Le and Liu, supra , and, in my view, they do not rise above the level of suspicion. [ 72 ] Applying the standard of review set out in Garofoli , supra , I am of the view that the ITO, as reduced and amplified, does not disclose a sufficient record upon which the issuing Justice could conclude there to be a credibly based probability that evidence proving the commission of the offences allegedly engaged in would be found at the Surrey property. [ 73 ] As such, I find the search warrant with respect to the Surrey property to be invalid.

The resulting warrantless search is therefore in breach of Mr. Pipping’s s. 8 Charter right to be secure from unreasonable search and seizure. The Richmond Property [ 74 ] As noted in those portions of the ITO relating to the Richmond property, Cst. Cessford observed Mr. Summers keying into Unit #415 at the Richmond property on March 9. He used this observation in the ITO as part of the grounds to obtain the warrant to search that unit. Mr. Summers asserts that this observation, made by Cst. Cessford from the stairwell of the Richmond property (and looking

down the hallway), constituted a warrantless search and was therefore prima facie a breach of his s. 8 Charter right to be free fromunreasonable search and seizure. [75] The Crown asserts that as a result of building management having granted permission to the police to enter the building’scommon areas, the observation did not constitute a search for which Mr.

Summers had any reasonable expectation of privacy. [76] This situation is different from that which occurred at the Prenter property, where building management refused police anypermission to enter the common areas of that building, and as a result of which police sought and obtained a General Warrant authorizingsuch access. In an earlier ruling, I determined that Mr. Pipping had a sufficiently reasonable expectation of privacy in the hallway toassert standing to challenge the General Warrant authorizing such access.

In a subsequent ruling, I upheld the General Warrant. [77] In the case of the Richmond property, Cst. Cessford testified that he spoke on February 4 with the property manager for thebuilding regarding gaining access to the building. He also emailed a representative on the strata council, who directed the Constable tosee the onsite caretaker. Cst. Cessford arranged a meeting with that person in her office in order to further his request for access.

It wasat that time, while in her office and being shown how the building was accessed with key fobs and viewing the computer equipment thatrecorded all such entries, that he inadvertently saw on the screen a listing of names and units, noticing one linking Mr. Summers to unit#415. [78] I accept that Cst. Cessford had no intention of breaching any privacy interests, seeing the information on the screen onlyaccidentally while in the course of being shown the system whereby building access was operated, monitored and recorded.

That said,this particular observation while made in the spirit of full disclosure in the ITO, should not be relied on as part of any basis to connectMr. Summers to any particular unit in the building. [79] The building manager to whom Cst. Cessford had been directed agreed to allow him access to the common areas of theRichmond property for the purpose of making observations therein. The manager followed this up with an email directing him to theoffices of the Richmond RCMP, who with the prior permission of building management had their own key for such access to thisbuilding. [80] Cst.

Cessford picked up the key fob on March 9, identifying himself to the Richmond RCMP and explaining he had thepermission of the building’s management. He also, for some reason, mentioned to the Richmond RCMP that he had the assistance of awarrant. In this regard he testified on cross-examination that given he had already been given permission to enter the building frombuilding management, he did not think he needed a warrant and was not sure why he said this. He likely became confused as betweenthe Richmond property and the Prenter property. [81] In R. v. White, 2015 ONCA 508 , [2015] O.J.

No. 3563, the Ontario Court of Appeal reviewed a warrantless policeentry into common hallways of a condo complex, and without prior approval of the building’s management. Police gained physicalaccess by following a postal worker through the locked front entrance. The building contained ten dwelling units located over fourfloors. [82] Applying the analysis set out in R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128, the Court considered thefollowing factors: • Presence at the time of the search; • Possession or control of the property or place searched; • Ownership of the property or place, • Historical use of the property or item; • The ability to regulate access, including the right to admit or exclude others from the place; • The existence of a subjective expectation of privacy; and • The objective reasonableness of the expectation. [83] The Court upheld the finding by the trial court that the police attendance without prior approval by building managementconstituted a breach of the accused’s reasonable expectation of privacy in those common areas.

The situation was further exacerbated byvirtue of the manner of the search, which included police gaining access to and viewing the storage locker contents of the accused,making observations while hidden in the stairwell of a relatively small multi-unit building, and listening to the goings on inside thespecific dwelling unit believed to be that of the accused. [84] In R. v. Hassan, [2017] O.J. No. 83, the police were given permission by building management to enter a multi-unit apartmentbuilding for the purpose of making visual observations therein.

That attendance was not found in any way dependent on the invitation ofthe accused. At para. 100, the Court distinguished the facts from those in R. v. White: [100] I make these observations and findings in the context of unobtrusive observation by others including the police. Unlike in White,the police did not (

a) enter a storage locker room and observe contents of individual lockers; (

b) listen to what was going on insideApartment 305; (

c) obtain information as to other people in the building who might be of interest; or (

d) hide in a stairwell to overhear aconversation. They "did not take unusual advantage of their presence in the hallway". They maintained a distance from Mr. Hassan anddid not engage with either him or the premises he was seen to enter. [101] I find, therefore, that the entry and presence of the police officers did not constitute a search.

[102] Even if I were wrong in this regard, I am satisfied that Mr. Hassan's subjective expectation of privacy was not reasonable in thesecircumstances. [85] The apartment building in Hassan consisted of about 200 dwelling units across roughly twelve or thirteen floors. Access to thebuilding was secured by assigned key fobs. Video security cameras and an intercom were installed at the main entrance and signage onthe property alerted visitors of the surveillance. [86] In British Columbia, a recent decision by the Supreme Court in R. v. Law, [2017] B.C.J.

No. 1716, is also instructive. [87] In Law, police obtained permission from the management of a high-rise apartment to enter the hallways and other commonareas of the building for the purpose of conducting surveillance on the accused entering a specific apartment from the hallway andfurther obtained key fob information unique to that individual along with a floor plan, residency documents, and historical CCTVfootage, all pertaining to an investigation arising from a number of women alleging sexual misconduct against them. [88] The building itself was highly controlled, regulating and recording access via assigned key fobs and recording video of peopleentering and leaving the building and parkade.

There was also a concierge who would query people not recognized regarding theirpurpose for being in the building.

Despite these heavy controls, the system was still described as not entirely fool proof, as people couldstill gain access by following someone else into the building and onto an elevator without too much difficulty. [89] In addressing the specific question of what privacy interests were engaged by police visually observing, from a commonhallway, the accused entering a specific dwelling unit, the court at para. 100 noted the importance of each case being decided on its ownunique facts, and specifically whether or not police had permission to enter the building. [90] In dismissing the application on the basis that the accused had no reasonable expectation of privacy in the common hallways,the court provided a helpful overview of the guiding principles and various case authorities, which I reproduce below: [101] Mr.

Arbogast cited R. v. White, 2015 ONCA 508, where police were both in the building surreptitiously and making note from acommon area of things occurring inside an apartment. In addition, police entered a storage room and saw some articles in a storage lockerassociated to the accused's suite which could be associated to a grow-op. The evidence gathered by police in this manner was excludedand the accused was acquitted.

In dismissing the Crown appeal the court said: [47] Although the respondent did not have absolute control over access to the building, it was reasonable for him to expect that thebuilding's security system would operate to exclude strangers, including the police, from entering the common areas of his buildingseveral times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although accessto the building's storage area was not regulated, it was not open to the general public.

And it was reasonable for him to assume thatpeople would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit. [102] In an earlier decision of the Ontario Court of Appeal, R. v. Laurin, (ON CA), [1997] O.J. No. 905, policeobservations of moisture on the inside of the window of an apartment violated the individual's reasonable expectation of privacy andconstituted a warrantless search, but their olfactory observations in the hallway of the building was found not to be a search.

MordenA.C.J.O. said: [38] The police officers making their way to the appellant's apartment were entitled to be in the hallway, as were other tenants of thebuilding, their visitors, repair people, the landlord, and so on. I do not think that the fact that they were engaged in an investigation of acomplaint meant that they had no right to use the common hallway to attend at the door of the appellant's apartment. Their presence therewas not dependent on the invitation of the appellant, express or implied.

I refer to the fact that the outer doors of the building were notlocked or otherwise secured. [103] In Saciragic at para. 33, quoted above, the Ontario Court of Appeal found an individual had no reasonable expectation of privacyas to his comings and goings, which could be observed by others.

The police were present in the building with the knowledge of themanager. [104] In Webster, Chiasson J.A. said the issue was not how secure the building was, but how exclusive occupation of the common areaswas: [77] I conclude that there was ample evidence to support the judge's finding that "common areas of the particular residential complexwere fairly accessible to the public...".

In my view, she was correct in concluding that the appellant did not have a reasonable expectationof privacy in the common areas of the building and that a warrant was not required for the police to enter. [105] A series of trial level decisions follow essentially the same reasoning that observations of an individual, or a smell or the sound ofa fan coming from inside an apartment from the hallway do not violate the reasonable expectation of privacy: R. v. Piasentini, [2000]O.J. No. 3319; R. v. Thomsen, [2005] O.J. No. 6303, appeal dismissed 2007 ONCA 878 , [2007] O.J.

No. 4863 (although thetrial judge found the officers' actions in bending down and sniffing the door to the apartment constituted an unreasonable search); R. v.Verret, 2013 ABQB 658 , [2013] A.J. No. 1237; and R. v. Nguyen, 2008 ABQB 721 , [2008] A.J. No. 1361. [106] As noted earlier in these reasons, the defence characterizes the hallway of the 22nd floor of the building as an area in which Mr.Law's reasonable expectation of privacy was at its highest.

There were only six units on the floor, there were no surveillance cameras inthe hallway or in the elevators and there was no way someone outside the building could observe the hallway via a window. [107] To the contrary, other tenants, their invitees, building management and maintenance workers could be expected to use the hallwayon the 22nd floor. The police were in the building with the consent of building management and I infer from the evidence of Mr.Wrobleski that they were on the 22nd floor with the consent of one of the residents. Mr. Law had no right or authority to limit access tothe 22nd floor.

The target of police observations was confirmation of Mr. Law's residency in the building. He was not entitled to privacyover that information. Any subjective expectation of privacy he held in the hallway outside his door fails at the objective scrutiny stage.

[ 91 ] The following relevant features emerge as regards Mr. Summers’ privacy interests at the Richmond property: 1. The dwelling unit he is seen accessing, #415, is one of 92 units built on the upper three floors of a four-floor building in Richmond, sitting atop a grocery store and fitness centre. Unit #415 is on the 4 floor. 2. There is a main entrance/exit, and a secondary exit to the building. 3. Entrance to the building, as well as to the elevators within, is regulated by key fobs that create access records that are retained for 2 days. 4.

Video surveillance of the lobby and other areas is retained for 1 week. 5. Varying levels of foot traffic would be encountered in the grocery store and fitness centre on the ground floor. I would not think it unusual to expect that some of that traffic might be generated by visitors or other people not living in the building. 6. There is no basis to conclude that Mr. Summers exercised any greater right of access or control over who could enter the building and the common areas within it, than any other occupant of the building. 7. As earlier noted, Cst.

Cessford was given explicit permission by building management, to whom he had been directed by a representative of the strata council, to access the building for investigative purposes by picking up the key fob for that purpose kept at the offices of the Richmond RCMP. He was told if he wanted his own key fob he should make a formal written request to management’s head office. 8. Cst. Cessford used the key fob on a single occasion, and for only a brief period on March 9, to enter the building and make a visual observation, looking out into the hallway from an unlocked stairwell door, to see Mr.

Summers keying into unit #415. He made this observation from between 30 to 100 feet away, as Mr. Summers proceeded toward the subject unit. This visual observation was not performed during night time, but rather during the early evening hours (1850 hours) and was not filmed or otherwise recorded on any equipment. 9. Cst. Cessford did not try to obtain any other information such as sounds, vibrations, conversation, smells, recordings or other intrusive measures that might have engaged privacy interests.

He observed what any occupant or visitor, including police, invited to the building or permitted access to it by building management, might be reasonably expected to observe, including people entering or exiting specific dwelling units during reasonable hours. [ 92 ] Based on the foregoing and applying the guidance from the case authorities reviewed above, I conclude the privacy interests engaged would be at lowest end of the spectrum, if engaged at all. [ 93 ] Even assuming Mr.

Summers held a subjective expectation of privacy in the hallway outside his dwelling unit, he has not demonstrated any such expectation to be objectively reasonable under the context specific circumstances noted above. As such, the visual observation made by Cst. Cessford seeing him key into unit #415 was not a search within the meaning of s. 8 of the Charter . [ 94 ] Having established a valid basis for the police to ascertain Mr.

Summers’ connection to unit #415, there remains the question of whether there is otherwise in the ITO a sufficient factual basis to amount to a credibly based probability that there will be evidence going to prove the alleged crimes within. [ 95 ] Mr. Summers is seen by police to be gaining keyed entry to the Richmond property main entrance and parking lot.

He is also observed proceeding directly from the Richmond property to undercover purchases in which he participates on January 28 and February 3, 2016. [ 96 ] One of the drug runners, Brown, during a drug sale to undercover police is overheard speaking on the telephone about attending Richmond to give something to “Ramone.” Ramone is the name that Mr. Summers referred to himself as during the January 14, 2016 undercover sale of narcotics to Cst.

Vaughan-Smith (ITO para. 119). [ 97 ] Brown is also observed at a later date actually attending the Richmond property in a beige Ford Taurus registered to him, where he is let into the building by a male described in the ITO as having similar features to the accused, Summers (ITO para. 108).

Summers is later seen driving this same car on March 10 (ITO para. 163). [ 98 ] The same runner, Brown (known by an alias, “Z”), during an undercover drug transaction told the officer (ITO, para. 126) the requested narcotics were “at Ramone’s in Richmond.” [ 99 ] A number of the cars used to facilitate the drug sales are seen at the Richmond property, in particular, a Camaro, an Elantra, a Lexus and a Tercel. Mr. Summers is himself observed driving some of these vehicles, in particular the Camaro and the Tercel.

At para. 142 of the ITO, Summers is observed leaving the Richmond property in the Tercel to meet undercover officer Masales. [ 100 ] On February 26, Mr. Summers and Mr. Pipping were seen leaving the Richmond property and travelling together directly to the Prenter property, taking with them some pails that they unloaded and took inside the Prenter property. Thirty minutes later, they left and returned to the Richmond property. This occurred immediately after their joint meeting with undercover officer Masales in which they arranged further drug sales to him. See in this regard para. 142 of the ITO. [ 101 ] Mr.

Summers is seen by police at the Richmond property, entering via the main entrance and exiting a number of times using the secondary exit. [ 102 ] As discussed above, Mr. Summers is seen by police keying into unit #415 of the Richmond property on March 9. [ 103 ] Based on the foregoing, I conclude the search warrant in respect of the Richmond property was issued on an ITO, as amplified

and reduced, setting out a credibly based probability that evidence of the accused engaged in trafficking and in possession for the purpose of trafficking in narcotics would be found within it, and on which the issuing Justice could have granted the authorization. The Prenter Property [ 104 ] With the assistance of a general warrant, police gained entry into the building during the evening of March 11, 2016 and observed Mr. Pipping enter the building accompanied by an unidentified woman.

He was seen using a key to gain entry first into the building itself, and minutes later, with her, to unit #407 therein. [ 105 ] The defence contends that without the above-noted observation, the police would have had no basis whatsoever to seek a search warrant for unit #407, but that even with that observation, the ITO falls short of establishing a credibly based probability that evidence of illicit narcotics and related activity would be found in that unit.

This requires a careful review of the ITO, appropriately reduced and amplified. [ 106 ] As earlier noted in these reasons, there is a significant quantity of information in the ITO that connects both Messrs. Pipping and Summers to the illicit drug trade.

As will be seen below, this includes some activities observed by police that are associated to this specific property. [ 107 ] I have already noted earlier in these reasons, with respect to the Richmond property, the police observed both accused on February 26, 2016, immediately after arranging a large drug deal with UCO Masales, transporting pails from the Richmond property, unloading them at the Prenter property, and then returning to the Richmond property. [ 108 ] On March 4, Messrs. Pipping and Summers were seen by police leaving the Prenter property. Summers carried a black and white Lululemon bag.

They proceeded directly to a pre-arranged sale of narcotics with an undercover officer where, on arrival, they presented to him a black and white Lululemon bag containing 5 ounces of cocaine. They received in return $10,500.00 in cash, which was contained in a brown paper Starbucks bag. Following this transaction and after appearing to have stopped en route for lunch, both accused went directly back to the Prenter property and entered the building. Summers carried a brown paper Starbucks bag into the building. A short time later, both men left the Prenter property without the Starbucks bag.

They left in separate cars, Mr. Summers driving the Taurus vehicle. See in this regard paras. 153 and 154 of the ITO. [ 109 ] On March 10 (para. 163 of the ITO), Messrs. Pipping and Summers were seen by police carrying four large plastic shopping bags into the Prenter property. [ 110 ] And finally, at para. 166 of the ITO, there is police observation of Mr.

Pipping on March 11, 2016 at 1953 hours, keying into unit #407 of the Prenter property in the company of an unidentified female. [ 111 ] There is ample material in the ITO providing a credibly based probability of the Prenter property being used to further the illicit drug trade in which both accused were observed by police to be engaged in. The particularly contested point is whether there is enough upon which the Justice could have specifically authorized the search of unit #407 therein. This rests on the single visual observation by police seeing Mr.

Pipping key into that unit. [ 112 ] I agree with the defence that the singular observation of Mr. Pipping entering unit #407 does not, by itself, mean that either Pipping or Summers may not have also had access to other units in the building. That is entirely possible.

It is also possible that any such other unit or units, and not unit #407, might have been the ones used to further the illicit narcotics trade. [ 113 ] The difficulty with the defence submission is that while the alternatives posed are all possible inferences, they are not the inferences that must necessarily guide the consideration of the authorization. [ 114 ] It may well have been open to the issuing Justice to ponder whether someone in the place of Mr.

Pipping would ever take a woman, whose identity was unknown to the police, to a location where drugs or other articles associated with his narcotics activity might be kept. It is clear from other references in the ITO that at least Mr.

Summers was not shy about revealing, or perhaps even bragging, to the undercover officers about the extent and the sophistication of his illicit activities. [ 115 ] It was also open to the issuing Justice to include in his consideration of the application to search unit #407 that a single visual observation may be insufficient, or to consider that other units might be involved in any illicit activity, and not unit #407. [ 116 ] The gist of the matter is that unquestionably, one or more units within that building were being used for illicit drug activity by the accused, and that Mr.

Pipping was seen with a key controlling entry to a specific unit. The issuing Justice considered this access by Mr. Pipping, along with the other observations contained in the ITO, to constitute a credibly based probability that evidence of illicit narcotics activity would be found in that unit. [ 117 ] The requisite test for review of an authorization, as noted in Garofoli , supra , does not allow the reviewing Justice to simply substitute his or her view for that of the authorizing Justice.

Rather, the reviewing Justice must consider whether, on the record before the Justice as amplified on review, the authorizing Justice could have granted the authorization. [ 118 ] In the present case, I conclude there to be a sufficient body of material in the reduced and amplified ITO supporting a credibly based probability that evidence of trafficking, and possession for the purpose of trafficking in narcotics by Mr. Pipping and Mr. Summers would be found in unit #407, upon which the Justice could have issued an authorization.

Subversion of the Process [ 119 ] It is argued by the defence that the earlier discussed collective shortcomings in the ITO constitute a basis to invalidate the authorizations even if the ITOs, after reduction and amplification, as noted above, might otherwise constitute a credibly based probability to issue.

[120] It was argued that any examination in this regard should not be confined to what defence described as a purely “surgical”approach, but should instead undertake a broader review of police conduct in relation to the authorization process and the need for thecourt to disassociate itself with any conduct subverting it. [121] The case authorities are clear that the residual discretion to invalidate an authorization based on police misconduct subvertingthe authorization process, or put differently in some of the cases, amounting to an abuse of that process requires a very high threshold. [122] In R. v.

Bacon, 2010 BCCA 135, the Appeal Court confirmed at paras. 25 and 26 that it is a trial judge’s duty to first considerwhether a warrant could still stand after removal of any objectionable material. Only after doing so could the judge then consider anyresidual discretion to strike down a warrant regardless of sufficiency: [25] The correct approach is well described by Mr. Riley in the appellant's factum: 65. The trial judge's role in reviewing the validity of a search warrant is to consider whether the material filed in support of the warrant,as amplified on review, could support the issuance of the warrant.

While evidence of fraud, material non-disclosure, or misleadinginformation are all relevant to this enquiry, their sole impact is to determine whether there is a continuing basis to support the warrant: R.v. Garofoli at paras. 55-56; R. v. Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992, 149 C.C.C. (3d) 449, at paras. 52, 56. [26] What the judge was obliged to do was to strip away the objectionable features and examine the sufficiency of what remained. Hedid not engage in this exercise and thereby committed reversible error. [123] In the case of R. v. Gardner, 2015 BCSC 801 , [2015] B.C.J. No. 992 (BCSC), Mr.

Justice McEwan determined thatthe ITO in support of a warrant to search included the following deficiencies: • It lacked sufficient grounds of impracticability to support its issuance by means of the telewarrant provisions of theCriminal Code; • It relied on non-expert opinion triple hearsay in comparing hydro consumption rates of the target property against localproperty average consumption rates, supporting a misleading inference; • It left the impression that the subject property was similar to the other properties it was being compared to, providedsubstantially misleading observations made from a flyover of the subject property supporting grounds to believe marijuana was seengrowing on the property; • It made use of information derived from the PRIME database that was prejudicial, incomplete and misleading, for exampleimproperly describing an earlier search of one of the accused at an airport that was not indicative of drug involvement but rather of a tripto get married; • It cited unreliable informant derived details of prior illicit use of the subject property unconnected to the accused andtherefore having little probative value. [124] In Gardner, McEwan J. also canvassed case authorities underlining the importance of police exercising complete honesty, goodfaith and candour in availing themselves of the extraordinary investigative powers set out in the Criminal Code on an ex parte basis,quoting at para. 73 from R. v.

Morris, supra: [73] In R. v. Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539 (N.S.C.A.), Cromwell J.A. (as he then was) amplified onthis principle and the purpose of the process: The prior authorization process, however, is quite fragile. When the police attend before a Justice of the Peace, no one, for obviousreasons, is there as an advocate of the interests of the target of the search. The justice of the peace will usually not be a lawyer or a judge.The circumstances under which the warrant is sought may be urgent and the process, of necessity, quite informal.

This simplydemonstrates that the process depends on two things: the honesty, good faith and diligence of the police when they gather and presenttheir grounds for consideration and the independence and caution of the Justice of the Peace deciding whether to authorize the proposedsearch. The nature of the process demands candour on the part of the police. They are seeking to justify a significant intrusion into anindividual's privacy. This is especially so when it is proposed to search a dwelling house which has long been recognized as theindividual's most private place.

The requirement of candour is not difficult to understand; there is nothing technical about it. The personproviding the information to the justice must simply ask him or herself the following questions: "Have I got this right? Have I correctlyset out what I've done, what I've seen, what I've been told, in a manner that does not give a false impression?": see R. v. Dellapenna(1995), (BC CA), 62 B.C.A.C. 32 (B.C.C.A.) per Southin J.A. at para 37. In reviewing police conduct during the prior authorization process, the court's attention cannot focus solely on the particular search underconsideration.

It is tempting to do so, especially where, as here, police suspicions proved to be well founded. However, the purpose ofthe prior authorization requirement must be kept in mind. As noted, that purpose is to prevent unreasonable searches, not to condemnthem after the fact. If the prior authorization process is not vigorously upheld by the courts, it will lose its meaning and effectiveness.That process is in place to protect everyone from unreasonable intrusions by the state.

In considering this, or any other s. 8 case, the courtmust not only protect the rights of this individual, but also protect the prior authorization process which helps assure that the rights of allindividuals are respected before, not after, the fact. [125] Applying these principles McEwan J. made two findings with reference to the misleading parts referenced above.

Firstly, hedecided that their excision from the ITO left so little remaining that a Justice could not have issued the warrant. [126] Secondly, he concluded that even if there might remain a sufficient basis to issue, he felt it appropriate to exercise his residual

discretion to strike down the warrant for abuse of process, noting at paras. 78, 80 and 81 of Gardner as follows: [78] Morris suggests that protection of the process, in general, may be a significant consideration. In this case, the material was stitched together with characterizations of the facts that the evidence did not support to create a substantially misleading impression of a much stronger case. …… [80] I do not think it necessary to suggest that what the officer did was deliberate or intentional.

It appears, however, that the goal of persuasion overcame the duty of candour. [81] Although I have found the warrant in breach of the Charter for reasons set out in the first part of these reasons, I would also have found that on substantive grounds the warrant cannot stand, and that in the circumstances the defects in the material were such that the material assembled was "so subversive of [the] process that the resulting warrant must be set aside to protect the process and the preventive function it serves", to quote Cromwell J.A. in Morris at para. 53 . [ 127 ] Whether the type of conduct required for the residual discretion differs as described by subversion of the process as opposed to abuse of process was highlighted by Holmes J. in R. v.

Ali , [2014] B.C.J. No. 3470 at para. 157 : [157] But in my view the result of that material non-disclosure was not a subversion of the process, even if -- and I do not decide this -- such a result may be established by conduct falling short of an abuse of process. [ 128 ] In R. v.

Wilson , 2011 BCCA 252 , Frankel J.A. at para. 60 also addressed the unresolved nature of this remedy in this province, finding it in any event to require a police desire to mislead: [60] This Court has yet to decide whether a warrant that withstands scrutiny under the Garofoli test can be ruled invalid because of deliberate misconduct in the application process.

However, even assuming the existence of what has been called a "residual discretion", this is not a case that merits such action, given the trial judge's finding that Constable Wilton "was not motivated by a desire to mislead the judicial justice of the peace": Bacon at para. 27 ; R. v. Neubert , 2001 BCCA 88 , 150 B.C.A.C. 15 at para. 11 ; Lahaie v. Canada (Attorney General) , 2010 ONCA 516 , 101 O.R. (3d) 241 at para. 41 , leave to appeal ref'd [2010] S.C.C.A. No. 371 . [ 129 ] In R. v. Wong , [2017] B.C.J.

No. 360 , Kent J., reviewed at paras. 91 to 102 the current state of the law regarding the existence of a residual discretion to quash otherwise valid warrants, expressing doubts on the matter at para. 101 thusly: [101] I have doubts about the utility of a residual discretion on the part of the Court to set aside a search authority otherwise found valid. Garofoli makes no reference to it.

Not only that, one might think it foreclosed such a process by assigning excision as the sole impact of fraud, non-disclosure and misleading evidence in an ITO and limiting the analysis to whether or not there existed sufficient residual material that could have justified the warrant. The same approach was later reaffirmed in Araujo and, in my view, it is sufficient to address any problem of police misconduct in seeking prior authorization of a warrant.

Adding yet another layer of complexity to the review process seems unnecessary when the procedures set out in Garofoli and Araujo are sufficient for the task. [ 130 ] In the present case, the affiant testified that he placed the impugned material into the ITO in order to make full disclosure of information police had gathered, and it was not intended to mislead. [ 131 ] Given the abundance of additional, highly probative grounds set out in the ITO, many of those grounds supplied by the accused themselves to the undercover officers, there would simply be no need in this case for police to include misleading information that might make a “weak case” into a strong one, or to otherwise mislead the issuing Justice. [ 132 ] On the available evidence, there is simply no realistic basis to conclude the ITO, after amplification and reduction, to in any way be tainted or incapable of being relied on, or that the police conducted themselves in any way amounting to subversion of the authorization process.

There is an ample basis to uphold the warrants to search based on what remains after excision and amplification as noted in this ruling. [ 133 ] I am not persuaded that the errors or omissions identified in these proceedings were motivated by any desire to mislead the issuing Justice and they do not cast any taint on the substantial body of grounds remaining in the ITOs upon which authorizations could clearly issue.

To be clear, I do not find the ITO to have been capable of deceiving or misleading the issuing Justice. [ 134 ] However characterized, the exercise of the residual discretion involves a very high threshold. I find the ITO under scrutiny to neither constitute an abuse of the process, nor to constitute, if it is a different standard, a subversion of the process. Overseizure of Items Alleged [ 135 ] Even on a finding that the warrants to search the three properties were valid, defence asserts that the searches were conducted in an unreasonable manner.

Some of the items seized are said to have not been authorized by the warrants or otherwise connected to the case, thereby infringing s. 8 of the Charter . [ 136 ] The Crown objects to the defence raising this issue due to lack of notice, no specific mention of it being made in the Charter Notice filed January 27, 2017. [ 137 ]

Section 489 of the Criminal Code addresses the seizure of items not specified in a warrant: Seizure of things not specified 489

(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds

(

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [ 138 ] R. v. Sipes , 2011 BCSC 1763 , summarized this authority thusly, at para. 212: [212] If the police do not have reasonable grounds to believe that things will be found that will afford evidence of the offences listed in the warrant, the police will not be granted a warrant to search for those things. If they find such things and seize them pursuant to s. 489 of the Code , they will have to demonstrate at trial that they had reasonable grounds for doing so if the Crown seeks to introduce them into evidence.

Whether the police had the required grounds can be challenged by cross-examination and the introduction of other evidence. The result is that while the police need not demonstrate the requisite grounds before seizure, they may be required to after seizure; and when they are, those grounds can be thoroughly challenged by the accused. [ 139 ] The items complained of by the defence are a Rolex watch, a camera, some computer equipment and some video surveillance equipment. [ 140 ] Defence contends the illegality is borne out by the statement made by Cst.

Formby in the ITOs, where at para. 194 he states as follows: [194] I do not have reasonable grounds to believe that th

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