R v Manumikalak, 2018 NUCJ 19

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Manumikalak, 2018 NUCJ 19 Date: 20180720 Docket: 08-16-419 Registry: Iqaluit Applicant: Pitsiulak Manumikalak -and- Crown: Her Majesty the Queen ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Applicant): Mike Blanchard Counsel (Crown): Philippe Plourde Location Heard: Iqaluit, Nunavut Date Heard: May 11, 2018 Matters: Voir dire hearing for Charter sections 8 and 9 challenge. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Tables of Contents I. INTRODUCTION . 3 II. FACTS . 3 III. ISSUES . 8 IV. ARGUMENT . 8 A. Applicant’s Position . 8 B. Crown’s Position . 12 V. ANALYSIS . 17 A. Did the RCMP officers have reasonable and probable grounds to arrest the applicant and carry out a search of his luggage incidental to the arrest? . 17 B. If the RCMP officers did not have reasonable and probable grounds to arrest and search the applicant and breached his rights under sections 8 and 9 of the Charter , is the evidence obtained admissible at his trial? 19 I.

INTRODUCTION [ 1 ] The applicant filed a Notice of Application for an Order declaring that his rights under sections 8 and 9 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 ( UK ), 1982, c 11 [ Charter ] were violated when his bags were searched by Royal Canadian Mounted Police [RCMP] officers without a warrant at the Iqaluit airport on August 10, 2016. [ 2 ] The officers seized six half-pound vacuum-sealed bags of marijuana, ten boxes containing 1000 vials of cannabis oil, a large number of dime bags, roughly three ounces of loose marijuana, and three loose vials of oil. [ 3 ] The applicant submits that the officers violated his rights under

section 9 of the Charter when they arrested him without reasonable and probable grounds and that they violated his rights under

section 8 when they conducted a warrantless search and seizure. [ 4 ] In the event that this Court finds the applicant’s rights were breached, the applicant seeks an Order under section 24(2) of the Charter , excluding all the evidence derived from the search. [ 5 ] The court conducted a voir dire and heard evidence by video conferencing form Constable Kyle Elliot [Elliot]. [ 6 ] After hearing submissions, I reserved judgment. II. FACTS [ 7 ] The Crown adopted the

summary of anticipated facts contained at paragraphs 1-9 of the applicant’s written argument – as supplemented by the additional evidence of Elliot. [ 8 ] Elliot is an experienced police officer. He completed his basic training from May to November 2008. Part of the training he received was assessing and identifying possible criminal behaviour and the legal requirements to have reasonable and probable grounds

to make an arrest. He was also trained in the enforcement of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. [ 9 ] Between 2008 and 2010, Elliot was involved in general duties in the Whalley district of Surrey, British Columbia, enforcing the Criminal Code , RSC 1985, c C-46 [ Criminal Code ], and CDSA . The work involved working with a lot of street people and street gangs.

His work included responding to high risk situations and responding to robberies and break-ins. [ 10 ] From 2010 to 2012, Elliot worked at the detachment in Kelowna carrying general duties particularly with respect to drug offences. [ 11 ] Between September 2012 to January 2013, Elliot worked in the Downtown Enforcement Unit in Kelowna. The unit carried out small undercover operations against street level drug dealers in the downtown core of Kelowna. [ 12 ] From January 2013 until December 2014, Elliot moved to the Special Enforcement Team in Kelowna.

That unit had a mandate to investigate drug offences, organized crime, and prolific offenders. The work involved the investigation of drug offences including transportation and trafficking. [ 13 ] Between December 2014 and September 2015, Elliot worked at the Iqaluit detachment. His duties included being the first responder to Criminal Code offences and to CDSA offences, when they came up. [ 14 ] From September 2015 until January 2018, Elliot worked with Federal Operations

section of the RCMP in Iqaluit. This work focused on drug offences, organized crime, and security for the Territory. The

section investigated drugs coming into Nunavut and problems arising from them in the communities. While with the Federal Operations section, he participated in approximately 20 different drug operations. [ 15 ] Elliot obtained a Bachelor of Arts degree in Criminology and Psychology. In 2010, he completed a course on Introduction to Human Sources, which taught him about how to recruit and maintain good relationships with confidential informants [CI]. [ 16 ] In 2012, Elliot completed a course in Handling Principles and Best Practice in Human Resource Management.

This was a more advanced course on managing confidential informants. [ 17 ] Elliot completed a course on surveillance techniques in 2013. The course involved a lot of vehicle and foot surveillance where he was given a task and an objective wherein he would have to decide how to get close to a target and make observations in a covert way. This included observing the demeanor of people suspected of having committed crimes. [ 18 ] In 2013, Elliot also completed a course entitled Search Warrant and Drafting.

He was given the facts in a scenario involving drugs and was given the task of writing up an Information to obtain the Search Warrant. The course covered the legal requirements for obtaining a search warrant. [ 19 ] Elliot attended a Drug Expert Workshop in 2014 that dealt with investigating drug activities. He also attended a course entitled Squad Drug and Gang Presentation that was directed at policing drug offences.

He also attended a course on drug identification. [ 20 ] In 2015, Elliot attended a course entitled “Introduction to Marijuana Growing Operations.” [ 21 ] Elliot attended a Drug Investigative Techniques Course in 2016.

It was a two week course that covered various aspects of drug investigations including search warrants, confidential informants, money laundering undercover operations, and surveillance. [ 22 ] When Elliot was working with on the Federal Operations Project in Iqaluit on August 9th, 2016, a confidential informant told him that a person named Pitsiulak Manumikalak would be flying from Ottawa to Iqaluit and then onto Cape Dorset in the next few days,

carrying marijuana, resin, shatter (a solid THC concentrate), and cocaine. He was described as being a dark male about 50-years-old. He about 5-feet-6 to 5-feet-7 inches tall and had a mustache, but no teeth. He should be wearing a Maple Leafs baseball cap and should be travelling alone. [ 23 ] The CI told Elliot that the applicant was from Cape Dorset and would be carrying a significant amount of cocaine oils, weed oils, shatter, and marijuana in his suitcase. Shatter is a highly concentrated form of THC that is extracted from marijuana. The drugs were to be given to a male named Jamesie in Cape Dorset.

After checking with RCMP in Cape Dorset, Elliot believed that the person was Jamesie Alariaq. [ 24 ] Elliot testified that the CI first provided the RCMP with information in 2015. He had provided information about five times before the tip about the applicant and every time the information was accurate. That information had not been tested in the legal system, but two search warrants had been issued based on the information provided. In both cases, the information from the CI was found to be accurate. The CI was paid for the information provided.

Elliot was not aware of any convictions of the CI for perjury, fraud, or obstructions of justice. Based on his experience as a police officer, Elliot believed the CI to be credible. [ 25 ] Elliot checked the passenger lists with both Canadian North and First Air and discovered that the applicant was listed as a passenger on Canadian North flight 436 from Ottawa to Iqaluit on August 10, 2016.

He was also listed as a passenger on a flight from Iqaluit to Cape Dorset on August 11, 2016. [ 26 ] Elliot passed on this information to RCMP Corporal Dykstra [Dykstra] who reviewed the accused’s Police Reporting and Occurrence System [PROS] record. Dykstra discovered that the applicant had been a suspect in a drug investigation that occurred in 2014, but had no drug convictions.

Dykstra also reviewed Alariaq’s PROS record and found he had several convictions for possession and possession for the purpose of trafficking in drug oils and marijuana. [ 27 ] Elliot contacted the Ottawa Police at the Ottawa airport and provided the information received from the CI. [ 28 ] On 11:06AM on August 10, a member of the Ottawa Police Service confirmed that the applicant arrived for his flight alone wearing the Maple Leaf ball cap and checked one bag.

The Ottawa Police Service forwarded a photo to Dykstra of the man they suspected of being the applicant as he passed through security at the Ottawa airport. Dykstra forwarded the photograph to RCMP members in Cape Dorset and they confirmed that the person in the photograph was the applicant. [ 29 ] After the applicant disembarked flight 436 at the Iqaluit airport at 4PM, Elliot and Dykstra observed him for about 15 minutes as he stood close to the luggage carousel. They identified Mr. Manumikalak from the security picture forwarded by the Ottawa police.

The officers were located about 15 feet from him in plain clothes. The applicant was wearing a Maple Leaf ball cap and sunglasses. He did not remove the sunglasses and Elliot took this to be a tell similar to that used by poker players to hide their eyes and disguise their nervousness. They observed him looking over his shoulders as if he was looking for police. He seemed very nervous and in a rush unlike others who were joking and talking. [ 30 ] Because the applicant retrieved a black bag from the carousel, Elliot was confident that he had the grounds to arrest the applicant for offences under the CDSA .

The applicant grabbed a black bag and Elliot arrested him shortly after for possession of controlled substances. Outside the airport, Dykstra read the applicant his rights. [ 31 ] After verifying that the applicant’s name was on the bag, Elliot and Dykstra opened it and discovered illegal drugs.

They took the applicant and the bag back to the Federal Operations office. [ 32 ] From the seized bag the officers seized: six half-pound vacuum-sealed bags of marijuana, ten boxes containing 1000 vials of cannabis oil, a large number of dime bags, roughly three ounces of loose marijuana, and three loose vials of oil. [ 33 ] The applicant spoke to Defence Counsel from 4:53 until 5:04PM. At 7:17PM, Dykstra conducted a recorded interview with the applicant when the applicant acknowledged that he was bringing drugs from Ottawa to Cape Dorset.

[34] The applicant appeared before a Justice of the Peace and was released shortly after. III. ISSUES [35] Did the RCMP officers have reasonable and probable grounds to arrest the applicant and carry out a search of his luggageincidental to the arrest? [36] If the RCMP officers did not have reasonable and probable grounds to arrest and search the applicant and breached his rights undersections 8 and 9 of the Charter, is the evidence obtained admissible at his trial. IV. ARGUMENT A.

Applicant’s Position [37] The applicant submits that Dykstra and Elliot lacked objectively reasonable and probable grounds to arrest the applicant becausethey acted on a tip from a confidential informant, who provided no details. Furthermore, by purporting to “corroborate” the tip withsurveillance that yielded nothing out of the ordinary and provided no link to criminal activity, the officers failed to establish reasonableand probable grounds to arrest the applicant. [38]

Section 495 of the Criminal Code authorizes a peace officer to arrest without a warrant any person whom the officer hasreasonable grounds to believe has committed or is about to commit an indictable offence. As held at paragraph 24 in R v Storrey, (SCC), [1990] 1 SCR 24, 1990 CarswellOnt 78 [Storrey] this

section requires the officer’s subjective belief, that a person hascommitted or is about to commit an offence, be objectively reasonably. [39] The standard of “reasonable and probable grounds” to arrest was articulated by Martin J.A. for the Ontario Court of Appeal in R vDebot, (ON CA), [1986] OJ No 994, 30 CCC (3d) 207 [Debot]. The Supreme Court of Canada affirmed Martin J.A.’sreasoning at paragraph 60 of (SCC), [1989] 2 SCR 1140, 1989 CarswellOnt 111. In her reasons Wilson J., identifiedthree concerns to be addressed in weighing the evidence being relied upon to find reasonable grounds for arrest.

First, was theinformation predicting the commission of a criminal offence compelling? Second, where that information was based on a ‘tip’originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigationprior to making the decision to conduct the search? The totality of the circumstances must meet the standard of reasonableness.Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [40] In Debot, the police conducted a warrantless search incident to arrest based on information received from a CI.

The CI providedthe police with details of an upcoming drug transaction between three parties, including the appellant Debot. The CI purported to haveobtained this information first-hand from one of the impugned parties. Police had relied upon the CI in the past. In addition, the partiesexpected to be involved in the transaction were known to the police as drug users and traffickers. Acting on this information, the policeconducted surveillance. The police saw the suspects conduct a suspected hand-to-hand transaction.

The police saw the appellant’s car,previously observed at other suspected drug transactions, at the scene. The police followed the car, detained it, and searched theappellant. [41] The trial judge found that the police lacked reasonable grounds to search Debot. The Court of Appeal and the Supreme Court ofCanada disagreed with the trial judge on the

interpretation of the of the “totality of the circumstances” and found that the cumulativeeffect of the facts validated the police’s decision to treat the informant as credible because the sequence of events actually observedconformed sufficiently to the anticipated pattern sufficiently to remove the possibility of innocent coincidence. [42] At Debot paragraph 17, Martin J.A. stated that, when an arresting officer relies upon information from a CI, to establish reasonable

and probable grounds the CI must provide more than a mere statement that a certain person is carrying on a criminal activity or thatdrugs will be found at a certain place. The officer relying on an informer’s tip to make a warrantless arrest must provide support for hisor her conclusions that the CI’s tip gives rise to reasonable grounds for that arrest. He cited the following factors as being relevant to theassessment. First, whether the CI’s tip contains sufficient detail to ensure that it is based on more than rumour or gossip. Second,whether the CI discloses his or her source of knowledge.

Third, whether there are any indicia of his or her reliability, such as pastcooperation or corroboration by police surveillance. [43] In Debot, Martin J.A. and Wilson J. were satisfied that reasonable and probable grounds existed to effect the warrantless search ofthe appellant in light of the “totality of the circumstances”. Where a CI provides detailed information, the police need not confirm eachdetail as long as the events actually observed conform sufficiently to the anticipated pattern to remove the possibility of innocentobservance.

However, Wilson J. cautioned at paragraph 70 that “the level of verification required may be higher where police rely on aninformant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater”. [44] As the same Court of Appeal subsequently confirmed in R v Zammit, (ON CA), [1993] OJ No 881, 1993CarswellOnt 93, observation of innocent and commonplace conduct is of little weight in corroborating a CI’s claims.

In that case, a CIaccurately provided the appellant’s address, a description of his vehicle, the name and address of the workplace, along with details of ananticipated cocaine transaction. The Court concluded at paragraphs 26 to 28 that the details provided “would be known to anyonefamiliar with the appellant and would not in any way substantiate the allegation that the appellant was involved in drugs.” [45] In the case at bar, a CI told Elliot that the applicant was travelling to Cape Dorset in the next few days.

The CI didn’t tell him whenor on which airline and the police had to make inquiries with both First Air and Canadian North. [46] Dykstra consulted the PROS database and determined that the applicant was once a “suspect” in a drug investigation although hewas not charged, and he had no convictions for drug-related offences on his criminal record. [47] With the assistance of the Ottawa Police Service, Elliot and Dykstra confirmed that the applicant was in fact flying to Cape Dorset. [48] That was the extent of the corroboration for the tip.

Elliot made the bald assertion that this informant had provided information inthe past and was reliable, while providing the Court with zero support for this assertion. [49] Surveillance of the Applicant, intending to corroborate the tip, yielded nothing but commonplace conduct; the applicant wastravelling by air (the only way to get to Cape Dorset), something that would be known to anyone familiar with the applicant and likelymany others. [50] Essentially, what the police had was corroboration of identity and that the applicant was travelling by air with one bag.

What thetest requires is evidence or events from a CI that would remove the possibility of innocent coincidence. The police did not observe anyactivity that linked the applicant to criminal activity.

The only link to criminal activity is that the CI said there were drugs in the bag.They had no information on who supplied the drugs in Ottawa, the quantity of drugs that would be bought, the reason the applicantwould have been in Ottawa before that, the reasons for his stay in Ottawa, whether he paid for the airfare or it was paid by someone else,and generally the purpose of his trip. [51] What the police did not have were incidents or events which in-and-of-themselves remove innocent coincidence. For example, druginvestigations can have facts where discrete parties meet in different parts of a small town.

They can meet at a certain time with certainvehicles. This information would give an air of suspicion and remove innocent coincidence. [52] Elliot was an experienced officer who had knowledge about drafting the documentation necessary to obtain a search warrant andhad the time to get one. The fact that he did not is an indication that Elliot was uncertain that he had the reasonable and probable groundsto make an arrest. [53] In

summary, the information gathered by the RCMP fell short of the standard set out in Debot. It is impossible to conclude, withoutresorting to impermissible ex post facto reasoning, that the officers possessed reasonable grounds for arrest. The applicant’s arrest wasaccordingly arbitrary and offended

section 9 of the Charter.

B. Crown’s Position [54] As set out at paragraph 17 of Storrey, there are two parts to the analysis of determining whether the police complied with section495(1) of the Criminal Code. First, the officers must subjectively have reasonable and probable grounds on which to base the arrest.Second, those grounds must be justifiable from an objective point of view. [55] At paragraph 8 in R v Williams, 2009 ONCA 35, [2009] OJ No 123, the Ontario Court of Appeal held that the first part of theanalysis must be made in the context of the circumstances presented to the officer.

At paragraphs 18 to 21 in R v Juan, 2007 BCCA 351,[2007] BCWLD 4870, the British Columbia Court of Appeal stated that the subjective reasonableness of the officer’s belief must beconsidered in light of the officers experience with the form of criminal activity under investigation. [56] At paragraph 31 of R v Whyte, 2011 ONCA 24, [2011] OJ No 126, the Ontario Court of Appeal held that objective reasonablenessof the arresting officer’s grounds “must be assessed from the standpoint of the reasonable person ‘standing in the shoes of the policeofficer’”. [57] At paragraph 27 of R v Jir, 2010 BCCA 497, [2010] BCWLD 8813 [Jir], the British Columbia Court of Appeal held that the“reasonable ground” standard is obviously lower than the standard for a criminal conviction and it is also lower than the standard of“balance of probabilities”. [58] As noted by Defence Counsel, the three concerns noted in Debot that must be addressed by police to justify a warrantless searchare as follows.

First, was the information predicting the commission of a criminal offence compelling? Second, where the information isbased on a tip originating from a source outside the police was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? [59] Regarding the first concern, the Crown submits that the information predicting the commission of a criminal offence wascompelling: a. The CI provided the name of the applicant; b. The CI provided the itinerary of the applicant; c. The CI provided a range of return dates of the applicant; d.

The CI provided information that the applicant would be returning with drugs in his luggage; e. The CI provided information regarding the type of drugs that the applicant would be transporting; f. The CI provided the name of the person for whom the applicant was transporting the drugs; and, g.

The CI provided further background information on the applicant. [60] At pages 7 and 8 of R v Perreault, the Quebec Court of Appeal held that, in making a determination of probablecause, the relevant inquiry is not whether particular conduct is ‘innocent,’ but rather the degree of suspicion that attaches to particulartypes of non-criminal acts.

Consequently, as noted at paragraph 29 of R v Fadel, 2015 QCCA 1233, 2015 CarswellQue 7057 [Fadel], itdoesn’t matter that most of the details provided by the CI are ‘innocent’, it is the totality of the circumstances that provides enoughgrounds for the officers to decide to act.

[ 61 ] At paragraphs 29 and 41 of Fadel , the Court of Appeal noted that the Court assessing the conduct of the police officers has to be cognizant that police officers are trained to detect criminal activities and that their view on the entirety of circumstances is based on that experience. [ 62 ] Regarding the second concern the Crown submits that the source of the tip was credible: a. The CI provided a number of details showing his knowledge of the commission of the offence; b. The CI had been used as a CI by the officers in the past and had been providing information to the RCMP since 2015; c.

The CI had provided information on approximately 5 occasions; d. The information provided by the CI was found to be accurate and was corroborated in most cases through other sources of information, including database checks; e. The previous information provided led to two search warrants being issued where drugs were seized: i. On one occasion, information was received that marijuana was being sold from a location. A search warrant was executed on the residence and marijuana was seized. ii. On another occasion, information was received that drugs were being sold at a location.

A search warrant was executed on the location and marijuana and drug paraphernalia were located. f. The CI is motivated to provide information for monetary reward and has been paid for information provided to the RCMP; and, g. The CI does have criminal record but there are no convictions for fraud, perjury or obstruction of justice. [ 63 ] As held at paragraph 19 of R v McCargar , 2007 ABQB 30 , 413 AR 329 , the amount of corroboration required in each case is fact- specific. The Alberta Court of Appeal stated that a higher level of corroboration is required where the information was not particularly compelling.

The Court also noted that the reliability of the informant was unknown and referred to Wilson J.’s comment at paragraph 63 of Debot , “... the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater”. [ 64 ] As held in R v Goodine , 2006 NBCA 109 , 307 NBR (2d) 178 , there are instances where information was obtained from a single informant with no further corroboration being required.

In that case, the Court of Appeal affirmed the decision from the trial judge to confirm that the officers had the required grounds to arrest the accused, even though they were tipped-off by only one informant. [ 65 ] Regarding the third concern, the Crown submits that the officers corroborated the information – by their own investigation – prior to making the decision to arrest. a. The officers checked with First Air and Canadian North and were provided with the flight status for the applicant, corroborating the information received from the CI; b.

The officers obtained assistance from the Ottawa Police Authority and from Ottawa Police Services, who obtained visual

confirmation that the applicant had attended, checked in, and checked one suitcase. The police also confirmed that the applicant was travelling alone; c. The officers showed the pictures obtained from Ottawa Airport Policing to a special constable who was able to confirm that the person in the picture was the applicant, further corroborating the information; d. The officers made checks in the PROS and Canadian Police Information Centre [CPIC] databases. The officers obtained information which strengthened the grounds of the officers to arrest the applicant.

They found that the applicant was a suspect in an investigation for possession of marijuana for the purpose of trafficking in 2014. The officers also found that the person for whom the applicant was allegedly transporting the drugs, Jamesie Alariaq, was the subject of numerous investigations for drug related offences, including possession of marijuana (2012 and 2015), marijuana oil (2015), as well as possession for the purpose of trafficking marijuana (2016).

The RCMP officers were entitled, by law, to consider the background of the applicant, and the background of the involved third-party, in order to assess the credibility of the informant and to assess how compelling the information was; and, e. The officers conducted visual surveillance at the Iqaluit airport. They thought the applicant looked nervous, and observed as he looked over his shoulder several times with his sunglasses on, indoors.

They observed the applicant take possession of a bag and walk toward the exit before arresting him. [ 66 ] The Crown submits that the surveillance completed by the RCMP was complete and extensive in the circumstances.

As noted at paragraph 32 of Debot , the police are not required to confirm each detail in an informant’s tip provided the sequence of events actually observed conforms to the anticipated pattern to remove the possibility of innocent coincidence. [ 67 ] As previously noted in Fadel , the observations of the officers about the conduct of the applicant is also relevant and must be assessed considering the experience and training of the officers as they are trained to detect criminal activities and behaviour indicating criminal behaviour. [ 68 ] Finally, as set out in Debot , the prior involvement of the parties is also relevant in assessing the reasonable grounds of arrest.

The RCMP reviewed the PROS records of the involved individuals and assessed them with the information provided by the CI and concluded that they had the grounds to arrest the applicant. [ 69 ] The Crown submits that the totality of circumstances meets the reasonableness standard and if the court finds weaknesses in one area, then it may be compensated by strength in the other two. For example, in Jir the information provided by the informant was very precise, but the officer who executed the arrest was unaware of the identity of the informant and the informant’s reliability.

The totality of the circumstances was such that the weaknesses in the credibility stage were overcome in the compelling stage. [ 70 ] In

summary, the Crown submits the applicant was lawfully arrested by the RCMP. As confirmed by the Nunavut Court of Justice in R v Schurm , 2011 NUCJ 36 , [2011] Nu J No 41 , police are lawfully entitled to search luggage as a search incidental to an arrest. Since the arrest and search were lawful the statement provided by the applicant is not tainted by any breaches of his rights. V. ANALYSIS A.

Did the RCMP officers have reasonable and probable grounds to arrest the applicant and carry out a search of his luggage incidental to the arrest? [ 71 ] I am satisfied that the information obtained from the CI by the police was compelling for the reasons set out in the Crown’s written argument. While there were many other details missing, as noted by Defence Counsel, the police do not have to corroborate everything – particularly when they were working in a short time frame.

As stated in Perreault , the police had grounds to be suspicious particularly, as noted in Fadel , where the leading officer was very experienced in detecting criminal activities involving drugs. Elliot had been a member of the RCMP for 10 years and had spent much of that time investigating drug offences, taking many courses to help him in his work. He has worked on the street and undercover. He has dealt with organized crime.

[ 72 ] Taken separately, the information from the CI could be construed as being innocent coincidence. However, when looked at as a whole, the information was compelling enough to start the investigative process while working on a short timeline. [ 73 ] I am also satisfied that the CI was a credible source because of the reasons set out in the Crown’s written argument. The CI in this case was more reliable than in Debot . In Debot , the police officer had had at least one previous dealing with the informant and described him as "reliable".

On that occasion, the informant advised him that a large quantity of speed would be found at a particular residence. Only trace amounts of speed were found, but a larger quantity of marijuana was seized. In this case, the CI had been used on about five previous occasions and on two of them search warrants were executed, which resulted in the police finding the suspected drugs. [ 74 ] The weakest part of the Crown’s case was the corroboration concern.

As Defence Counsel has pointed out, the only way to get to Cape Dorset was by air travel and many of the observations of the police could apply to any traveller to the north. The only facts to suggest that the applicant was not an innocent coincidence were: his background as a suspect and his connection to a suspected drug trafficker who had three convictions for drug offences. The airport surveillance could have applied to anyone. Some people leave their sunglasses on indoors and looking over the shoulder could also apply to many people who are looking for someone to meet them.

Interpreting nervousness is very subjective. [ 75 ] However, Elliot and Dykstra took what steps they could on a short timeline to ensure that the person arriving at the airport was the applicant. They had the Ottawa police take a picture of him at the Ottawa airport and then had it sent to Cape Dorset so they could make a positive identification at the Iqaluit airport. He also fit the description provided by the CI on approximate age and height, having a moustache, and wearing the Maple Leaf ball cap. [ 76 ] Standing alone the corroboration would be insufficient to satisfy the requirements for a lawful arrest.

But, in the totality of the circumstances, I am satisfied the three concerns have been met. As Wilson J. stated at paragraph 70 in Debot , “the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater.” [ 77 ] Here, the credibility of the informant had been tested and there were sufficient details provided to remove the risk of innocent coincidence.

The high credibility of the CI reduced the level of verification required. [ 78 ] Elliot and Dykstra both had a subjective belief that they had the grounds to arrest the applicant. As Elliot testified: I believed all the grounds were there. I was very confident in this arrest. Yea, basically he was travelling alone and he would be--- he checked one bag. He grabbed the bag. I gave him enough time to make sure it was the correct bag that he was looking at.

He grabbed the handle and started walking away. [ 79 ] The objective reasonableness of this belief must be assessed in light of the officer’s experience with the form of criminal activity under investigation. As I have noted, Elliot was very experienced in investigating drug offences. It must also be assessed from the standpoint of the reasonable person “standing in the shoes of the police officer”. [ 80 ] With these points in mind, I must apply the much lower standard of proof that is below a balance of probabilities.

When I do, I have no doubt that there were reasonable and probable grounds for the arrest and it was lawful. B. If the RCMP officers did not have reasonable and probable grounds to arrest and search the applicant and breached his rights under sections 8 and 9 of the Charter , is the evidence obtained admissible at his trial? [ 81 ] Since I have found the arrest was lawful there was no breach of the accused’s Charter rights and the evidence obtained is

admissible at the applicant’s trial. Dated at the City of Iqaluit this 20th day of July, 2018 ______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice