R. v. Thompson, 2018 BCPC 368

Citation: R. v. Thompson 2018 BCPC 368 Date: 20181211 File No: 87673-3-C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD MICHAEL WILLIAM THOMPSON ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. BROWN Counsel for the Crown: M. Khan Counsel for the Accused: M. Stern, M. Beckett Place of Hearing: Abbotsford , B.C. Dates of Hearing: December 6, 7 and 11, 2018 Date of Judgment: December 11, 2018 [ 1 ] THE COURT: Ruling on voir dire re s. 8 Charter .

INTRODUCTION [2] This is my ruling on a voir dire held at the beginning of a trial in the proceeding R. v. Richard Michael William Thompson, file87673-3C. [3] By way of Charter application, the defence seeks to quash a first search warrant granted by a judicial justice on January 23,2018. This search warrant allowed the police to search and seize certain items in Mr. Thompson's purported residence located on LarchStreet in Abbotsford, B.C. [4] Mr. Thompson is now before this court charged with 19 offences.

The charges relate to unlawfully possessing controlledsubstances for personal use, possessing methamphetamine for the purpose of trafficking and possessing property obtained by crimeincluding electronics, firearms and passports.

The Information, which proceeded by indictment, also charges a myriad of firearmsoffences including possessing, without authorization, loaded prohibited and restricted firearms, specifically five semiautomatic pistols,altering the serial number of one of these firearms, possessing without authorization two non-restricted rifles and two firearms storageoffences. [5] By way of brief overview, this saga began when one Mr. Barker reported to the police that his Surrey residence had beenbroken into on January 6, 2018. Mr.

Barker reported that many items were stolen including electronics, a camera, cash, designer bagsand watches including a Breitling watch with a known serial number. [6] On January 22, 2018, Mr. Barker reported to police that he had located the Breitling watch on Craigslist which directed him tothe "It's About Time" second-hand watch shop. A Cst. McInnis attended this shop and the store owner, Mr. Yazdanmehr showed himthe watch. The store owner advised that this watch was sold to one of his employees by someone named "Richard" on January 18,2018.

Through investigation the police identified the accused, Richard Thompson, as being the "Richard" who sold the Breitling watch. [7] On January 23, 2018, the Surrey RCMP sought and obtained the first search warrant and the next day they executed the searchwarrant at Richard Thompson's purported residence on Larch Street. They located various controlled substances. [8] During the execution of the first search warrant, the police entered a garage and found a boat and trailer. The police discoveredammunition and firearms there.

They obtained a second search warrant to search the boat and located ammunition and firearms. [9] The defence submits that the Information To Obtain (ITO) relating to the first search warrant did not, facially or sub-facially,contain information sufficient to provide the reasonable grounds for the granting of the warrant under s. 487 of the Criminal Code. As aresult, the defence says that the search of the residence is unreasonable and an infringement of Mr. Thompson's s. 8 Charter rights.

If Ifind a s. 8 breach concerning the first search warrant, the second search warrant allowing search of the boat is said to also beunreasonable as being without reasonable grounds. In the event I find a breach of Mr. Thompson's s. 8 Charter rights, the defence willbe arguing that all items seized during the execution of both warrants be excluded from evidence in these proceedings under s. 24(2) ofthe Charter. [10] As a reviewing judge, it is important that I bear in mind my role as set out in R. v.

Garofoli, (SCC), [1990] 2S.C.R. 1421 at 1452: ...if, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that theauthorizing judge could have granted the authorization, then he or she should not interfere. [11] I would fall into error if I were to simply analyze the warrant de novo by asking whether I would have granted the searchwarrant. Nevertheless, I must ensure that there were reasonable grounds to have granted the warrant and the inferences needed to bedrawn are reasonable inferences.

I must also be concerned whether the affiant gave a false impression about the circumstances. [12] During the voir dire, I granted the defence leave to cross-examine the affiant of the ITO, Cst. Sidhu. My reasons, therefore,take into account the contents of the ITO itself as amplified by the officer's evidence during the voir dire. The Crown has also agreed toexcise a portion of paragraph 17(

a) which refers to 148 PRIME files pertaining to the accused and to excise a reference to the accusedbeing found in possession of firearms in paragraph 18(a). In that latter paragraph the word "large" is also to be excised in reference toMr. Thompson being found with crystal methamphetamine. [13] Of course, I am also taking heed of the very able submissions of counsel. [14] Finally, I also bear in mind the Crown admission that the owner of the second-hand watch shop was not compliant with Langleybylaws in that his shop did not require identification to be produced during second-hand purchases.

THE ITO AS AMPLIFIED ON REVIEW [15] The ITO was marked Exhibit 1 in this voir dire. In cross-examination the affiant, Cst. Sidhu, acknowledged that the ITO wasonly the third ITO he had prepared up to that time and he would have drafted some clauses differently. [16] Cst. Sidhu affirmed the truth of the contents of the ITO on January 23, 2018. On page 1 he indicated he was personallyinvolved in the investigation on the same date but he had spoken to other investigators, reviewed evidence collected, as well asdocuments and reports. At paragraph 5, Cst.

Sidhu stated he had reasonable grounds to believe a residential break and enter offence anda possession of stolen property offence had been committed. At paragraph 6, he sought a search warrant of the Larch Street residence tosearch for the items Mr. Barker said were stolen from his residence, plus electronic devices, video surveillance equipment and identitydocuments. [17] In the investigational

summary, Cst. Sidhu explained that there was a break and enter at Mr. Barker's residence in Surrey. There were no witnesses or video surveillance of the incident. At paragraph 7, he described that Mr. Barker located his stolen Breitling

watch at "It's About Time" watch shop in Langley and the serial number was a match. The owner of the watch shop provided that the seller of the watch was named "Richard" and provided a phone number. The watch was sold to the shop on January 18, 2018. [ 18 ] The phone number "came back to" a Richard Thompson residing at Larch Street and Mr. Thompson is described to have a "history" of drug and property crime related offences.

The warrant is sought to recover the remaining stolen items and to seize electronic devices, video equipment and identity documents. [ 19 ] The ITO details the break and enter investigation relating to the Barker home from paragraphs 8 to 11. For the purposes of the voir dire , most of the contents there are not in dispute. The basement back door had been pried and forced open and Mr. Barker provided a comprehensive list of items stolen. A forensic examination of the Barker residence did not result in identifiable fingerprint s. [ 20 ] The "Seized Breitling Watch"

section of the ITO is contentious. Mr. Barker found his Breitling watch on Craigslist which directed him to the "It's About Time" watch store in Langley. Cst. McInnis authored a report about his conversations with the store owner. The store owner, Mr. Yazdanmehr, showed Cst. McInnis the Breitling watch. At paragraph 14(

f) the store owner said he did not keep records but the seller's name was "Richard" and he provided Richard's phone number to be 604-618-7106. [ 21 ] At paragraph 14(g), Cst. McInnis is said to have conducted PRIME checks on the phone number which "came back" to the accused Richard Thompson. An earlier occurrence report said that this phone number was "linked to" the accused. [ 22 ] Defence counsel takes issue with the manner in which the police have connected the accused to this phone number and the inference to be drawn from this information. [ 23 ] At paragraph 15, the affiant spoke with Cst.

McInnis and learned that the store owner, Mr. Yazdanmehr, was not actually working on January 18, 2018, when the Breitling watch was purchased. The store owner knows "Richard" as he has come to the store in the past. The store owner described "Richard" to be Caucasian, medium build, had pimples on his face and about five foot eight inches to six feet tall. [ 24 ] Cst. Sidhu looked at a PRIME photo marked Exhibit 2 in the voir dire as well as descriptors listed. He believed the photo matched Mr. Thompson's description, as the photo had Thompson with some redness to the cheeks with what appeared to be pockmarks.

The descriptors on PRIME were similar: five foot ten inches, 180 pounds, medium build. [ 25 ] The defence takes issue with the manner in which identification of the accused is ascertained and the inferences to be drawn from this information. [ 26 ] At paragraph 17, Cst. Sidhu sets out the PRIME and CPIC checks on the accused, Mr. Thompson. Under paragraph 17(

a) it states that Mr. Thompson has no outstanding conditions and no charges before the courts. He does have a conviction of assault, possession of a scheduled substance and possession of property obtained by crime under $5,000. Cst. Sidhu testified that the possession of stolen property offence was committed in 2014 and the conviction entered in 2015. It resulted in a $300 fine. [ 27 ] The rest of paragraph 17(

a) was agreed to be excised, but I need to refer to it because the defence submits that the excised portion is but one of many examples of the affiant inflating Mr. Thompson's criminality. The excised portion indicates that Mr. Thompson has: 148 PRIME files dating back to 2005, where he has been subject of complaint, charged, suspect, or of interest on 80 of these files and the files include possession of controlled substance, fraud, possession of property obtained by crime under 5,000, break and enter, suspicious persons, utter threats, trafficking in methamphetamine, possession of controlled substance, assault and weapon-related offences. [ 28 ] Paragraph 18(

a) indicates that Cst. McInnis had contact with Mr. Thompson in 2014 and Mr. Thompson was found with stolen property and a "large" (now expunged) amount of crystal methamphetamine. [ 29 ] The final sentence has been excised but it said, "Cst. McInnis also advised Thompson was later found to be in possession of firearms." [ 30 ] Defence counsel asserts that these records inflated Mr. Thompson's criminality. They say the same about paragraph 21(

e) where Thompson is said to "have a history of having stolen property which has resulted in a conviction in 2015" and paragraph 21(

f) where it is said, "Cst. McInnis has had past dealings with Thompson where was found (sic) with stolen property as well as an amount of crystal methamphetamine." [ 31 ] At paragraph 22 there is a

summary as to why there are reasonable grounds to believe that further stolen property from Mr. Barker is in the Larch Street residence. Defence counsel takes issue with paragraph 22(

e) in particular which says, "Thompson has a history of possessing stolen property, and is known by Cst. McInnis to be possess (sic) and sell stolen property." [ 32 ] The ITO also speaks as to how the Larch Street residence in Abbotsford was confirmed to be Mr. Thompson's residence and there are no issues there for the purposes of the voir dire . The residence had surveillance cameras. [ 33 ] Defence counsel has general issues with paragraph 22 which summarizes the reasonable grounds to believe that stolen property from Mr. Barker would be in the accused's Larch Street residence. In particular, paragraph 22(

b) suggests that because Mr. Thompson was in possession of a stolen Breitling watch as recently as January 18, 2018, he is "therefore associated to the break and enter of Barker's residence, and there is currently outstanding property from Barker's break-in." [ 34 ] At paragraph 22, Cst. Sidhu goes on to summarize that Mr. Thompson "could be waiting to sell the remaining watches." He also says that electronics of high use and popularity are often "covered" to be used by the thief. [ 35 ] Overall, defence counsel contends that it is a big leap of faith to infer that because a person is in possession of stolen property,

that person is connected to the earlier break and enter. In my view, this is the most important and contentious issue in this voir dire. MY REVIEW OF THE SEARCH WARRANT [36] I repeat my earlier comment that my role in reviewing the validity of a search warrant is to consider whether material filed insupport of the warrant, as amplified on review, could support the issuance of the warrant. [37] Our Court of Appeal in R. v. Le, 2014 BCJ No. 834, provides a

summary of the jurisprudence in this area. At paragraph 39 thecourt states that the question is not whether the reviewing judge would have granted the order, but whether there was an objective basison which the issuing justice could have done so. In Le, our Court of Appeal indicates that the trial judge should examine the informationin its totality, not on a piecemeal basis. The appropriate standard is one of "reasonable probability" rather than proof beyond areasonable doubt or prima facie case. Sometimes the requisite standard is said to be "reasonable belief".

Reasonable grounds exist at thepoint at which credibly-based probability replaces suspicion. [38] I also take into account the Supreme Court of Canada case World Bank Group v. Wallace, 2016 SCC 15 , when it wassaid as paragraph 123 that: When assessing a sub-facial challenge, it is important to note that the affiant may not ignore signs that other officers may be misleadingthem or omitting material information.

However, if there is no indication that anything is amiss, they do not need to conduct their owninvestigation. [39] I also bear in mind the concerns expressed by Southin, J.A., as she then was, in R. v Dellapenna

(1995) Carswell BC 1236where the ITO affiant was not intending to mislead but demonstrated a significant lack of care in setting out the evidence. Even if theaffiant is not intending to mislead, he must ask himself, "Have I got this right?" Essentially, the issue is whether the affiant set out theinformation in a manner that does not give a false impression. [40] Although I am assessing this ITO prepared by Cst. Sidhu in its totality, I do wish to address some specific issues raised bydefence counsel. 1. Did Cst. Sidhu inflate the criminality of Mr.

Thompson so as to give a false impression to the authorizing judicialjustice? [41] Having heard Cst. Sidhu's evidence during cross-examination, I am satisfied that he was not intending to give the judicial justicea false impression about Mr. Thompson's criminality. The issue here is whether he ensured that he set out the accused's informationcorrectly so as not to mislead the judicial justice even unintentionally. [42] As explained by the Supreme Court of Canada in R.

Araujo, 2000 SCC 65 , [2000] 2 SCR 992 at paragraph 46 and 47,and I am paraphrasing, the ITO must set out the facts fully and frankly for the authorizing judge and it should be clear and concise. Itneed not include every minute detail of the police investigation. However, the ITO should never attempt to "trick its reader." [43] Paragraph 17 of the ITO begins by pointing out that Mr. Thompson has no outstanding charges before the courts. It then setsout Mr. Thompson's three convictions including possession of property obtained crime under $5,000.

However, the Crown has concededthat the remainder of the paragraph should be excised. That portion indicates that Mr. Thompson has 148 PRIME files dating back to2005 and for 80 of those files he has been the subject of complaint, charge, suspect, or of interest. The files include a variety of criminalbehaviour such as break and enter and possession of property obtained by crime. [44] The reference to Mr. Thompson being "charged" is not incorrect because the comment refers to the 148 PRIME files datingback to 2005. Mr. Thompson was charged and convicted of a PSP offence in 2014/2015.

However, the Crown has agreed that thesentence be expunged, and I can only conclude that the sentence was unclear or even unfair. Through cross-examination, for example, Iknow that PRIME entries can be quite innocuous and can even include possible bylaw and motor vehicle infractions. [45] With respect to paragraph 18(a), it is said that in 2014 Cst. McInnis first had contact with Mr. Thompson and Mr. Thompsonwas found with stolen property and a "large" amount of crystal meth. The word "large" has now been excised and the whole secondsentence about Mr.

Thompson being found in possession of firearms has been excised. Again, I can only assume that sentence to be anunfair characterization, although Cst. McInnis did attend a domestic call where apparently firearms were located. [46] The defence submits that in addition to these excised portions, other areas of the ITO are inflammatory. Clause 21(

e) indicatesthat "Thompson has a history of having stolen property which has resulted in a conviction in 2015." Clause 21(

f) refers to Cst. McInnis"past dealings" with Mr. Thompson where he was found with stolen property and drugs. Again, clause 22(

e) states that "Thompson has ahistory of possessing stolen property" and is known by Cst. McInnis to possess and sell stolen property. A similar statement is made asearly as paragraph 7 of the ITO. [47] While I agree that the wording in these clauses at paragraph 21 and 22 could have been more precise, I do not find that theytrick the reader or that they would seriously mislead the authorizing justice. The word "history" can mean a series of events but it canalso mean one event. In paragraph 21(e), Mr. Thompson does indeed have a history of one conviction in 2015.

It would have beenpreferable for the affiant to have just set out the conviction and any other serious specific police interaction, but these entries are not soerroneous or unreliable as to undermine the support for the warrant. [48] Insofar as the excised portions are concerned, I am reminded of the words in R. v. Munro, [1997] BJC No. 1002 at paragraph15.

To paraphrase, I am now to assess the evidence placed before the authorizing justice in light of the evidence brought out duringcross-examination and after expunging any misleading or erroneous information. [49] In my view, although the excised information contains some unfair information, it would not have tricked the judicial justice ormisled him. The judicial justice still had the three convictions before him and it is highly doubtful that the excised information about

PRIME and other matters would have had any major role in causing him to authorize the warrant. 2. Does the ITO, as amplified and excised on review, disclose reasonable grounds to establish that the accused, RichardThompson, was the person selling the stolen Breitling watch at the secondhand watch shop? [50] There are two concerns here. First, the defence asserts that there are no reasonable grounds concerning identity to infer that itwas this accused, Richard Thompson, who was selling the Breitling watch on January 18, 2018.

The store owner was not present whenthe transaction occurred and no record was kept of the identity of the seller. An employee of the store apparently dealt with a "Richard"and the store owner knows this "Richard" from past dealings. Based on descriptors provided by the store owner, Cst. Sidhu believed aPRIME photo and PRIME descriptors matched the accused Richard Thompson. [51] Second, the defence submits there are no reasonable grounds to infer that the phone number 604-618-7106 is that of RichardThompson.

On January 18, 2018, no records were kept of the seller's phone number or other particulars and the defence says a PRIMEcheck indicating that the phone number "came back to" Richard Thompson is not reliable. It is not a phone subscriber record. [52] It must be remembered that I am reviewing this warrant using a standard of reasonable probability or credibly-based probability,not proof beyond a reasonable doubt. When I examine the ITO, as amplified and excised on review, I find that one reasonable inferenceis that it was the accused Richard Thompson who sold the stolen watch on January 18, 2018.

One could reasonably infer that the storeemployee told the store owner that it was the "Richard" he knew who sold the watch. The store owner had dealt with this Richard in thepast and he had descriptors such as pimples on the face and a height between five foot eight inches and six feet. Cst. Sidhu looked at aPRIME photo and observed pockmarks, and the PRIME descriptor had Mr. Thompson's height at five foot ten inches. Moreover, thephone number provided by the store owner matched that of Mr.

Thompson, at least using PRIME records. [53] I also agree that another inference is that it was a different "Richard" who sold the watch. The information from the employeeis not explained. As well, the description of "Richard" is rather generic and the phone number is linked to Mr. Thompson withoutsubscriber records. However, it is not for me to pick and choose amongst the possible inferences. The judicial justice could havereasonably inferred that it was Richard Thompson who sold the watch January 18, 2018. 3.

Does the ITO as amplified and excised on review disclose reasonable grounds to believe the seller of the watch hadknowledge it was stolen? [54] The defence raises this concern because there is no explicit information in the ITO about the state of mind of the seller of thewatch. A watch can easily move around and 12 days had elapsed since it was stolen. In my view, one reasonable inference is that theseller knew it was stolen. The seller was in possession of the watch within a couple of weeks of it being stolen and he was selling it at asecond-hand watch shop for money.

Again, knowledge is not the only inference to be drawn from these circumstances but the standardhere is reasonable probability not proof beyond a reasonable doubt. 4. Does the ITO as amplified and excised on review disclose reasonable grounds to believe that further stolen propertybelonging to Mr. Barker is in Mr. Thompson's purported residence on Larch Street in Abbotsford? [55] In my view, this is the most vexing issue in this voir dire.

Defence counsel contends that it is too big a leap of faith to infer thatsimply because someone is in possession of stolen property, that person is connected to the earlier break and enter. It is too bald anassertion to suggest in paragraph 22(

b) of the ITO that because Mr. Thompson was in possession of the stolen Breitling watch on January18, 2018, he was therefore "associated" to the break and enter of Barker's residence. [56] Defence counsel relies on cases such as R. v. Le, cited above, where it was found that the ITO did not disclose a basis uponwhich the issuing justice could conclude there was a reasonable probability that the drugs in that case were being stored at a certainresidence.

There was simply a gap in the information. [57] Conversely, Crown counsel submits that a number of reasonable inferences can be inferred from the information in this ITOand it would be improper for me to simply choose one of the inferences over the others. For example, Crown suggests one could inferthat the seller of the watch was never in possession of the other stolen property, or that he was earlier in possession of the stolen propertybut the watch was the last item he possessed, or that he still is in possession of the other stolen property. [58] The case of R. v.

Sanchez, (ON SC) states at paragraph 39 that: It is common knowledge from our experience with warrants to search that evidence relating to the offence may be discovered at thepremises under the control of one suspected to be complicit in the crime….. [59] Those words have been adopted in B.C. in cases such as R. v. Seo, 2016 BCSC 2672. In Seo, however, the accused wasidentified as a suspect of a break and enter through video surveillance. [60] In the case at bar, Mr.

Thompson is not identified in any way at the scene of the break and enter but he is identified as being inpossession of property stolen during the break and enter. His residence is also identified on Larch Street. [61] After much deliberation, I have concluded that it was open for the judicial justice to find that there were reasonable grounds todraw an inference that further stolen property from Mr. Barker would be found in Mr. Thompson's residence. As already discussed, itwas reasonable to infer that it was Richard Thompson who sold the stolen Breitling watch on January 18, 2018.

He sold the stolen itemfor money. The sale occurred relatively soon after the watch was stolen, some 12 days later. [62] Applying Sanchez, it is common knowledge that evidence relating to an offence may be discovered at the premises under thecontrol of one suspected to be complicit in the crime. The crime here is possession of stolen property from the break and enter, notnecessarily the break and enter itself. It is to be noted that Mr. Thompson also has a conviction for possession of stolen property. It is acredibly-based probability that Mr.

Thompson may have other stolen items at his home from the break and enter, regardless of whether

he had a direct role in the break and enter. CONCLUSION [ 63 ] The first ITO in this case, as amplified and excised on review, could support the issuance of the search warrant of Mr. Thompson's home. The ITO did not contain any seriously misleading information. Although a number of inferences could be drawn from the material provided, there were reasonable grounds to establish that Richard Thompson was in possession of and sold the stolen Breitling watch. Further, there were reasonable grounds to believe that stolen property belonging to Mr. Barker was in Mr. Thompson's residence. [ 64 ] The defence application to quash the warrant is dismissed. (RULING ON VOIR DIRE CONCLUDED)