R. v. Crowe, 2023 BCPC 137

Citation: R. v. Crowe 2023 BCPC 137 Date: 20211117 File No: 68150-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. DAVID FRANCIS CROWE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: E. McCormick, by telecommunication Counsel for the Defendant: M.P. Klein, QC Place of Hearing: North Vancouver , B.C. Dates of Hearing: October 18, 19, 2021 Date of Judgment: November 17, 2021

INTRODUCTION [1] This decision arises in a voir dire to determine whether the requisite grounds exist for the lawful granting of a search warrantexecuted at 2777 Highview Place, West Vancouver, on May 7, 2019. [2] Mr. Crowe is charged by indictment with nineteen

(19) Criminal Code offences, including fraud and fraudulent personation. [3] He says that there are fatal problems with the warrant issued in relation to the search, the first of which is that it authorizes thesearch of a different residential address, 2227 Highview Place. That problem is not an issue argued or addressed in the voir dire leadingto this decision. [4]

Section 24 of the Charter is also not addressed here. [5] Rather, this voir dire was directed at the second fatal problem Mr. Crowe asserts: He says that the Information To Obtain,(sometimes referred to in this decision as “ITO”), sworn in support of the warrant, does not contain sufficient information to justify theissuance of the warrant and that, therefore, s. 8 of the Charter has been breached. [6] In particular, Mr. Crowe says that the Information To Obtain fails to provide a reasonable basis to believe that the items soughtas evidence would be found in the residence sought to be searched.

THE APPLICABLE LEGAL PRINCIPLES [7] To be constitutionally compliant with s. 8 of the Charter, (which protects citizens against unreasonable search and seizure by thestate), a search warrant must be based on reasonable and probable grounds, established on oath, to believe that (

i) an offence has beencommitted, and (ii) there is evidence of the offence to be found at the place to be searched; see Hunter et al. v. Southam Inc. (SCC), [1984] 2 SCR 145 and R. v. Bath, 2009 BCSC 1859. [8] Associate Chief Justice Holmes referred to Mr.

Justice Dickson's discussion of reasonable and probable grounds in Hunter atparagraph 11 of Bath: Dickson J, (as he then was), speaking for the court, [in Hunter], explained that the reasonable and probable grounds standard, in turn,requires 'credibly- based probability”...: The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point wherecredibly-based probability replaces suspicion. [9] Justice Holmes explained that on a review such as this, the question is whether there was "sufficient reliable information" onwhich the issuing Justice could have granted the warrant, stating “…this means, simply, whether there was at least some evidence that might reasonably be believed on the basis of which theauthorization could have issued,” citing R. v.

Araujo, 2000 SCC 65, at paragraph 13 of Bath. [10] The totality of the circumstances described in the Information To Obtain must be considered in assessing whether reasonablegrounds exist to believe that evidence of the offence, (as alleged in the information to obtain), would be located in the place to besearched. See: paragraphs 41 and 44 of R. v. Whitaker, 2008 BCCA 174. [11] The assessment is made on a "practical, non-technical and common-sense basis;" (paragraph 42 of Whitaker.) [12] In R. v.

Sunner, 2017 BCSC 2445, Justice Riley considered the sufficiency of an Information To Obtain in support of a searchwarrant, in the context of a drug investigation. He approached the assessment by considering whether the Information To Obtaindisclosed sufficient evidence of (

i) the occurrence of drug offences, including possession for trafficking, and (ii) that evidence of the drugoffences would be found at the specified residence. [13] In discussing the second question, he asked (

i) are there grounds to believe that the accused was involved in the offences? and (ii)are there grounds to believe that drug activity is sufficiently linked to the specified address so as to give rise to a credibly basedprobability that evidence of the offences would be located at that premise? THE WARRANT HERE [14] The warrant under review here was issued pursuant to s. 487 of the Criminal Code and states that there are reasonable grounds tobelieve that the offences of (

i) fraud over $5,000, contrary to s. 355 [sic] of the Criminal Code and (ii) identity fraud, contrary to s. 403 ofthe Criminal Code, were committed in North Vancouver between November, 2018 and April, 2019. [15] It further states that there are reasonable grounds for believing that (

i) the listed items will afford evidence of the offences, and(ii) those items, or some part of them, are in the residence at 2227 Highview Place, West Vancouver. (As noted above, that is not thecorrect address of the search site). [16] The items listed in the warrant are as follows: any electronic device capable of accessing the internet, such as a laptop, computer,Smart tablet and Smartphone; two 2019 Intense Sniper XC Expert men's mountain bikes; invoices, transaction documents, receipts, andshipping documents; a Medical Breakthrough Plus massage chair; a black East Van hat with "respect" stitching, and finally, documentsof residency and ownership.

THE INFORMATION TO OBTAIN [ 17 ] The sources of information set out in the Information To Obtain are reliable, largely comprised of police reports, bank information, business records, and video footage. [ 18 ] One of the records described by the affiant is a report from Mountain Equipment Co-op (“MEC”) Head Office. The report identifies believed-to-be fraudulent online purchases (or attempted purchases), where the MEC member and/or the holder of the credit card used for payment did not make or authorize the purchase or were not authentic. MEC Report : [ 19 ] This MEC report

summary includes the following specifics: (

i) On November 8, 2018, a 2019 Intense Sniper XC bike was fraudulently purchased from MEC under the MEC account of Mayman. (ii) MEC member accounts of C. Burgess, J. Innes, and S. Sarai, were compromised and online purchases made in February 2019. (iii) Fictitious MEC accounts were created in the names of R. Bergida, S. Lyons and M. Mayman. (iv) On February 10 and 12, 2019, three online orders were made on the Burgess MEC account, each for a 2019 Sniper bike valued at $5,950; all three bikes for pick up at the North Vancouver MEC store.

The phone number associated to this order is 604-773-3200. (This number becomes significant with regard to a number of other transactions identified in the ITO, below). (

v) On February 15, 2019, the Innes MEC account was compromised, and an online order placed at the Vancouver MEC store for a 2019 Sniper XC Expert bike, valued at $5,950, for pick up at the Vancouver MEC store. (vi) February 16, 2019: it is set out that an online order was made on the Sarai MEC account for pedals, two bike racks, and other accessories totalling just under $1,000. (vii) February 17, two online orders were placed on the Sarai account for a 2019 Sniper Trail bikes, (at $5,310), and cycling gloves.

All the Sarai orders were for in-store pick up. (viii) February 18, 2019, an online order was made on the Bergida MEC account for a 2019 Sniper Trail bike, again valued at $5,950, along with pedals and shoes at a cost of $460. (The phone number associated to this order was 604-733-3200). (ix) On April 6, 2019, an online order was made on the Lyons MEC account for three bikes, all 2019 Sniper XC Expert bikes, each priced at $5,950, for pick up at the North Vancouver MEC store. (The phone number associated to these orders was 604-773-3200).

Banking Information : [ 20 ] The Information To Obtain describes banking information queries, which revealed the following: (

i) The TD visa card used in the Burgess purchases was listed by the issuing bank as having $14,000 fraudulently charged, (or attempted to be), to it. (ii) The Innes online MEC order was on an RBC visa. An investigation showed total attempted fraud charges of just over $6,300 on that credit card. (iii) The visa card used in the Sarai online MEC orders belonged to another person who advised that his personal information had been hacked online; just under $6,400 fraudulent charges were attempted on it. (iv) The visa card used in the Bergida MEC online orders was a TD card with attempted fraud charges of $6,700 or thereabouts. (

v) The visa card used in the Lyons MEC online orders was Ms. Lyons' card, however, she had not made the purchases and did not authorize anyone to make the purchases. The total attempted charges on that card were just under $19,000. MEC Employee Information and Surveillance Video : [ 21 ] The Information To Obtain describes MEC security footage from February 14, 2019, showing an individual, believed to be Mr. Crowe, attending at the North Vancouver MEC store and picking up the bike purchased on the Burgess MEC account. No issue is taken as to the reasonableness of the belief as to Mr.

Crowe's identity for the purposes of the voir dire . [ 22 ] On February 19, a person who appears to be Mr. Crowe was video taped at the Vancouver MEC store. He claimed to be Mr. Innes, stating that he was there to pick up the bike ordered on February 15, 2021. He was not successful in doing so. [ 23 ] The Information To Obtain describes the following events occurring on February 20, 2019: a courier attending the North Vancouver MEC store to pick up a second bike ordered on the Burgess account; the courier producing a notarized document with a photocopy of a driver's license with the name Chris Burgess on it.

The courier was told by an MEC employee that the person who had ordered the bike must personally attend to pick it up. The courier said that he had been hired on Craigslist and was in contact with Ms. Lyons, at 773-3200. The courier left the store just after 6:30, leaving the notarized documentation behind. [ 24 ] On February 21, shortly before closing time, the same male from the February 14 video returned to the North Vancouver store; for the purposes of this voir dire , it is agreed that there was a basis to conclude that that person was Mr. Crowe.

[ 25 ] He claimed that his receipt was on his phone in his car and retrieved it and showed it to the MEC employee dealing with him. The order on the phone presented by the person believed to be Mr. Crowe was in the name of Burgess. The MEC employee asked for identification and the male said his driver's license was also in the car; he retrieved it and the employee, suspicious that it was a false document, seized the driver's license.

The male left the store. [ 26 ] On the morning of February 22, as set out in the Information To Obtain, the man returned to the store; an MEC employee called 911, and police arrested the man outside the store. It is not contested that the person arrested was Mr. Crowe. [ 27 ] I pause to observe that, given this evidence, there is a strong factual basis to conclude that Mr. Crowe is involved in the fraudulent online transactions committed in relation to the Burgess and Innes MEC accounts.

IP Addresses : [ 28 ] The ITO also sets out evidence with regard to IP addresses associated with the compromised MEC accounts. [ 29 ] With regard to the Burgess and Innes MEC accounts, where there is direct physical evidence linking Mr.

Crowe, the ITO shows overlap or commonality between the IP addresses used in those transactions and the IP addresses in a number of the other asserted fraudulent transactions. [ 30 ] In the ITO, the affiant explains that an “IP address” is an internet protocol address and is a number unique to that specific account user; that IP numbers are a series of four numbers separated by periods, for example, “69.176.174.45”, and that IP addresses will not be assigned to two different subscriber accounts at the same time.

The assigned IP address can change over time but are often assigned to the same subscriber for months or even years without change. [ 31 ] The Information To Obtain sets out a common IP address between the Innes, Sarai, and Bergida accounts, 71.19.252.124; a common IP address between the Innes and Sarai accounts, 71.19.252.141; commonality of IP addresses between the Innes, Sarai, and Bergida accounts, 71.19.249.219; and a further IP address common to the Innes and Sarai accounts ending in 140.

Conclusions Available to the Issuing Justice, Based on the Evidence : [ 32 ] The commonality between the Burgess and Innes IP addresses, (used in the fraudulent transactions where Mr. Crowe was seen on video attempting to execute the online purchases), with the IP addresses in the other MEC fraudulent transactions, is evidence that can support a conclusion that Mr.

Crowe was involved in all of the transactions where there are shared or common IP addresses. [ 33 ] The information attributed to MEC head office and employees, the video footage and the banking information, along with the IP address information, provide a basis on which the Justice could conclude that the offence of fraud had been committed. [ 34 ] The evidence of the courier providing a notarized, apparently false Burgess driver's license to the MEC employee and Mr. Crowe's presenting a fake Burgess driver's license, along with the use of Ms.

Lyons' and other persons' credit cards, provides a basis for the Justice to conclude that there was evidence of the offence of identity theft, (fraudulent personation). [ 35 ] The Information To Obtain also describes specifics of the appearance of the individual on the 14 th of February, captured by video, including his wearing a black baseball hat with a cross insignia. [ 36 ] The Information To Obtain sets out further information related to that hat, including queries by the affiant in relation to the brand “East Van Wear”. [ 37 ] The Information To Obtain also sets out that on the 19 th of February, 2021, the visa number used to purchase the Bergida MEC bike was used to purchase and import a chair; it sets out the address of the importer in North Vancouver, and the phone number associated to the transaction - 604-773-3200. [ 38 ] I am satisfied that the Information To Obtain, in its totality, discloses an evidentiary basis on which the issuing Justice could find that there were reasonable grounds to conclude that the offences of fraud and identity theft had occurred, and that Mr.

Crowe was involved in the offences. Thus, the first part of the two-part test for constitutional compliance set out in Hunter is met here. [ 39 ] The next question is whether there were reasonable grounds set out in the Information To Obtain to believe that the items sought would be at the residence subject of this search warrant application. [ 40 ] Setting aside the issue of the incorrect address on the warrant, and borrowing from Sunner , the first question to consider in this analysis is whether the Justice could be satisfied, on the evidence in the Information To Obtain, that Mr.

Crowe had a significant connection to the residence. Connection to Residence : [ 41 ] The affiant summarizes a police report about an officer's attendance at 2777 Highview Place on January 29, 2019, to ensure Mr. Crowe's compliance with a condition of a recognizance which he was subject to, issued out of Ontario, to reside at that address. The report sets out the officer's meeting Mr. Crowe. [ 42 ] The ITO also sets out details of a traffic stop conducted on April 24, 2019, where Mr.

Crowe advised the police officer that he had recently moved to his parents' home at 2777 Highview Place, West Vancouver. [ 43 ] The affiant describes a PRIME and CPIC check he conducted in relation to Mr. Crowe on April 30, 2019, which indicates that David Crowe currently resides at 2777 Highview Place, West Vancouver, and that he was bound by a recognizance that required him to reside with a surety, Richard Crowe.

[ 44 ] In my view, the evidence set out in the Information To Obtain is sufficient such that the Justice could be satisfied that Mr. Crowe had a significant connection to the residence. Items Would be There : [ 45 ] I now turn to the existence of reasonable grounds that the items sought would be at that residence to which he has a connection. [ 46 ] In the information To Obtain, the affiant sets out the obvious use of electronic devices capable of creating, storing, transferring and communicating data, in the commission of the online frauds.

He states that he believes that, apart from a cell phone, people tend to store electronic devices at their residences or vehicles, as it is not feasible to carry around or transport multiple electronic devices. [ 47 ] While Mr. Crowe says that this statement amounts to a mere assertion, I note that the ITO includes reference to Mr. Crowe's being required, pursuant to the recognizance mentioned above, to not possess any cell phone, pager, or personal digital assistance, except in the direct presence of surety Debra Crowe. [ 48 ] As noted above, the Information To Obtain must be considered in its totality.

The Justice had before him information that Mr. Crowe was to reside at the residence of his surety father. An inference available to the Justice was that, as a result of the terms of the recognizance, the place that his cell phone, pager, or personal digital assistance would be is the residence at which he was required to reside. [ 49 ] I note that the type of information contained in the electronic devices sought and subject of the warrant is of the nature of the evidence described by Associate Chief Justice Holmes as “enduring,” in Bath .

Thus, while the transactions occurred, for the most part, in February of 2019, (with the Lyons transactions in April), and the warrant was not sought until early May, I am satisfied that there was evidence before the Justice which was capable of supporting a conclusion that there were reasonable grounds to believe that the electronic devices sought to be searched for would be at the residence. [ 50 ] With regard to the 2019 Intense Sniper bike bought under the Mayman account, that bike was taken from MEC in November 2018, about six months before the warrant was sought. [ 51 ] There is no surveillance evidence, or evidence of any kind, of the bike being at the residence sought to be searched.

I note that the ITO contains information that the bikes purchased on the Lyons MEC order were to be delivered to an address different from the address sought to be searched.

While the ITO does describe an extant online advertisement which likely describes the Mayman bike for sale, there is no connection there with regard to the subject residence. [ 52 ] Factoring the information set out in the ITO, along with the easy mobility of a bike, I am not satisfied that the information in the Information To Obtain, in relation to the presence of the Mayman bike at the residence, is higher than the level of suspicion. [ 53 ] The 2019 Intense Spider bike purchased on the Burgess account is subject to different evidence: There, the evidence before the Justice was that Mr.

Crowe was seen to physically possess the bike in February, 2019. While there is no surveillance evidence of Mr. Crowe with the bike after February 14, I am satisfied that that is some evidence which could have satisfied the Justice that there was sufficient reason to believe that that bike would be at the residence sought to be searched. [ 54 ] As noted by Justice Holmes in Bath , certainty is not the standard. [ 55 ] Similarly, with regard to the invoices sought to be searched for, I am satisfied, given the indicia of Mr.

Crowe's involvement in the online transactions, including evidence relating to similarity of telephone number and visa number in relation to the imported chair, that there is a sufficient evidentiary foundation for the Justice to be satisfied that evidence with regard to invoices, transaction documents, receipts, and shipping documents would be located at the residence. [ 56 ] With regard to the massage chair itself, while there is evidence to support a credibly-based probability that Mr.

Crowe was involved in purchasing it, I am not satisfied that there is any such evidence to support such a probability that it would be located at the residence. The ITO sets out that it was ordered to be delivered to an entirely different address and there is nothing connecting the transaction with 2777 Highview Place, apart from Mr. Crowe.

I agree with him that, in all of the circumstances, that is not enough. [ 57 ] With regard to the black hat sought to be searched for, described as a black East Van hat with "respect" stitching, identity is a legitimate area of investigation and there is evidence in the ITO which would support an inference by the Justice that the hat would be at the residence where Mr. Crowe was residing; (see: paragraph 58 of R. v. James, 2018 BCSC 405 ) . There is a strong factual nexus between Mr. Crowe and the premises sought to be searched, which is his current residence.

The hat is a piece of personal clothing and one inference available to the Justice is that it was likely that Mr. Crowe kept such clothing at his residence. [ 58 ] Similarly, with regard to documents of residency and ownership relevant to proving Mr. Crowe’s connection to the residence, the information in the ITO relevant to his connection to the residence is sufficient such that I am satisfied that the warrant was properly issued in relation to the residency documents, as well. CONCLUSION [ 59 ] So my conclusion, with regard to this application is that the warrant authorizing the search of Mr.

Crowe's residence was valid, subject to the other arguments, and there was no breach of his right to be secure from unreasonable search and seizure under s. 8 of the Charter , at least with regard to the requirements of s. 487 and the grounds therein.

____________________________ The Honourable Judge L. Smith Provincial Court of British Columbia