R. v. Watson-Langley, 2022 MBPC 5

CITATION: R. v. Watson-Langley, 2022 MBPC 5 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) ) H. Crawley, for the Crown ) -and- ) ) Shamar Watson-Langley, Accused ) ) ) M. Glazer for the Accused ) ) Sentencing Decision delivered: ) January 20, 2022 DECISION ON VOIR DIRE Mary Kate Harvie, P.J. INTRODUCTION [ 1 ] On February 24, 2020 the accused Shamar Watson-Langley and two other males were arrested by members of the Winnipeg Police Service Guns and Gangs Unit (“WPS”) as part of an on-going drug investigation.

Counsel for Watson-Langley applies for a pre- trial order declaring his arrest unlawful and a violation of his rights under s. 9 of the Canadian Charter of Rights and Freedoms (the “ Charter ”). He seeks exclusion of all evidence obtained by the police, specifically the seizure of a set of car keys which included a key fob/swipe cards which were later determined to provide access to two apartment blocks which were the subject of two search warrants granted prior to the arrest of the accused. THE FACTS – AN OVERVIEW [ 2 ] In January 2020, WPS commenced an investigation dubbed “Project Ontario”.

Initial information provided by a confidential informant was followed by multiple days of surveillance, focusing first on a suite located at 1508-234 Ronald Street (“the Ronald Apartment”) in Winnipeg, as well as a white Infinity (“the Infinity”) which was linked to that address and suspected of being used during drug trafficking. The investigation eventually led to an address at 204-1133 Portage Avenue in Winnipeg (“the Portage Apartment”) and a second vehicle being a 2016 Acura (“the Acura”). The Acura was identified as a vehicle of interest only days prior to the arrest.

The confidential informant who provided both the initial and ongoing information was described as reliable, entrenched in the drug sub- culture, and had previously provided information to WPS for multiple warrants which had resulted in multiple arrests and seizures of controlled substances, proceeds of crime and firearms. [ 3 ] WPS quickly identified a black male as their target individual (an individual other than the applicant Watson-Langley) who they suspected was responsible for the drug trafficking (referred to as “T1”).

After extensive surveillance throughout the month of January and into early February, WPS believed they were satisfied as to T1’s identity. However, on February 5, 2020 police learned that the individual they identified as T1 was in custody in Durham, Ontario. It is unclear when that individual was arrested. WPS continued their surveillance, following who they believed to be the same black male despite being unaware of his actual identity.

For the purpose of this voir dire Crown counsel concedes that the Applicant Watson-Langley has an alibi for the period of January 24 to February 10, 2020, when he was out of the province. [ 4 ] WPS members continued their surveillance of the two apartments up to and including February 23, 2020 when WPS Cst.

Black (“the affiant”) applied for and was granted four search warrants pursuant to s. 11 of The Controlled Drugs and Substances Act, being; 1) 1508-234 Ronald Street, Winnipeg, Manitoba; 2) 204-1133 Portage Avenue, Winnipeg, Manitoba; 3) A 2016 Acura TSX bearing Manitoba plate HWA 922 (“the Acura”); 4) A 2016 white Infinity bearing Ontario licence plate CDJM553 (“the Infinity”). [ 5 ] On the days immediately proceeding the application for the warrants, WPS members specifically observed one or more black

males entering and leaving both addresses, and at least one of the males operating the Acura. Several WPS members testified toobserving the Acura being used for what they believe to be “hand-to-hand” drug transactions at various locations, as well as the Acurabeing operated between the two residences. Officers assert that the black males seen entering and exciting the Acura were each wearing adistinctive black jacket with fur trim. Beyond that, there is little in the way of detail as to the description of the males.

The Infinity wasfound to be parked in the basement in the underground lot of the Portage Avenue Apartment, and appeared to have been left there for anumber of days. [6] On February 24, 2020, WPS observed a black male, now known to be the Applicant, leaving the Portage Avenue apartmentbuilding and enter the Acura. He was seen driving to the GoodLife Fitness Center on Portage Avenue where he entered and conductedwhat police believed to be a “hand-to-hand” transaction with an unknown male. He then left, picked up two further black males anddrove the Acura east on Portage Avenue. WPS Patrol Sgt.

Cairns called for a “takedown” meaning that the vehicle would be stoppedand all occupants would be arrested. [7] The first attempt to stop the Acura was unsuccessful. Three police vehicles with lights activated attempted to pin-in thevehicle, but the Acura was driven back and forth into police vehicles until it was able to escape. After a short distance, it was effectivelypinned-in and the Applicant and two other occupants were arrested and the Acura was searched.

Specific to this application,investigators seized the keys in the ignition which had attached to it both an electric key fob and swipe cards because they believed thatthey were connected to the target residences. The key fob/swipe cards were later found to open the front doors of the Ronald Street andPortage Avenue Apartment complexes.

There was also a key on the ring which opened the Ronald Avenue Apartment whichinvestigators confirmed with the assistance of a locksmith, as the lock had been damaged during warrant entry. [8] The three males in the vehicle were arrested for a variety of drug related offences and the applicant was also arrested for motorvehicle offences including motor vehicle flight from police. WAS THE ARREST OF THE APPLICANT LAWFUL? [9] The law with respect to the powers of arrest is relatively well settled. Criminal Code s. 495 states that a Peace Officer mayarrest without warrant:

a) A person he finds committing an indictable offence or who, on reasonable grounds, he believes has committed or is about tocommit an indictable offence; or

b) A person he finds committing a criminal offence; [10] There is a fine but important distinction between the circumstances which allow a Peace Officer to detain as opposed to arrestan individual. In order to exercise their powers of arrest, a Peace Officer must have reasonable and probable grounds which areverifiable, and have both a subjective and objective component. The Peace Officer must subjectively believe that he has reasonablegrounds and those grounds must withstand objective scrutiny. [11] As stated in R. v.

Storrey, (SCC), 1990 1 S.C.R. 241 at paragraph 16: There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she hasreasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable groundsdid in fact exist, that is to say, a reasonable person, standing in the shoes of the police officer, would have believed that reasonable andprobable grounds existed to make the arrest: see R. v.

Brown (1987), (NS CA), 33 C.C.C. (3d) 54 at 66, 76 N.S.R. (2d)64, 189 A.P.R. 64 (C.A.); Liversidge v. Anderson, [1942] A.C. 206 at 228, [1941] 3 All E.R. 338 (H.L.). [12] It is not acceptable for a Peace Officer to arrest an individual as a means of obtaining evidence where they do not otherwisehave the grounds to arrest.

However, a Peace Officer is not precluded from continuing their investigation and collecting evidence simplybecause an accused has been arrested. [13] Crown counsel argues that there were ample grounds for arresting the accused, both on the drug investigation and with respectto the motor vehicle flight related offences. Defence counsel concedes, and I agree, that officers had the authority to arrest this accusedfor motor vehicle related offences after his flight from police.

However, I also agree that the seizures were related to the druginvestigation and it is therefore important to examine the grounds for arrest respecting those charges. [14] Defence counsel argues that there are two components to the “reasonable grounds” test for arrest. He argues that police musthave reasonable grounds to believe an offence has been committed, and that the offence was committed by the individual who is thesubject of the arrest.

Reasonable grounds to believe an offence was committed [15] Having reviewed the totality of the evidence called in the voir dire, I am satisfied that the officers had reasonable grounds tobelieve that an individual or individuals were involved in the trafficking of controlled substances. WPS officers were relying uponinformation from a reliable informant who continued to provide information as the investigation progressed. They made their ownobservations of what appeared to be “hand-to-hand” drug transactions.

They were also in possession of a series of search warrants givingthem judicial authorization to search the vehicles and the apartments. I am aware that the officers candidly acknowledged that they didnot actually see any drugs or money change hands during the suspicious transactions, and that they did not arrest or question any of theindividuals who allegedly purchased drugs during these transactions. However, in their evidence they identified how the transactions hadmany of the hallmarks of a drug transaction.

The officers are entitled to rely upon the totality of the information they had available tothem, including their own experience with drug trafficking. I am mindful as well that the legal test does not require the officers to haveinformation which amounts to a prima facie case or proof beyond a reasonable doubt. Taking all of the foregoing into consideration, I

am satisfied that the officers subjectively believed that they had reasonable grounds to believe that an indictable offence had beencommitted and those subjective grounds were objectively reasonable. Did the officers have reasonable grounds to believe that the accused had committed an indicatable offence? [16] Defence counsel argues that the evidence available to the officers falls short of establishing that it was the Applicant who wasthe individual involved in the alleged multiple hand-to-hand transactions.

While the WPS officers testified as to their subjective belief asto the identity of the individual, that belief must be objectively assessed. [17] There are clearly shortcomings in the identity evidence offered during the voir dire. By their own admission, investigatorsbelieved up until February 5, 2020 that their target individual was someone other than the Applicant. Even after that date, the evidencedescribing the perpetrators can best be described as general and focusing largely on the clothing worn by the males under surveillance aswell as some very general height and other physical descriptors.

I am mindful as well that, given the concession respecting his alibi, theApplicant could not have been the individual observed during the surveillance between January 24 and February 10, 2020. I am alsomindful that there is no photographic or video evidence, and that the officers should have been alive to the shortcomings of theirobservations given the previous error made respecting the individual they believed to be their original target. [18] However, for the purpose of this application what is required is an objective assessment of the officers’ subjective belief at thetime of arrest.

To that end, officers observed the Applicant leaving the Portage Avenue residence on the morning of his arrest andentering the target vehicle, being the Acura. On the days prior, they saw an individual matching his description, albeit it a general one,coming and going from the Portage Avenue apartment.

Finally, they observed what they believed to be a “hand-to-hand” transaction atthe GoodLife Fitness Center. [19] I am satisfied that given the observations of the officers on the days immediately prior to the arrest, their grounds to believe theaccused was the same individual earlier observed are objectively reasonable. Any frailties respecting the eye witness identification willbe thoroughly addressed at trial. WAS THE SEIZURE OF THE KEYS/FOBS/SWIPE CARDS LAWFUL? [20] Crown counsel concedes that there is a subjective tie between the seizure of the keys/fobs/swipe cards and the druginvestigation.

He argues that the seizures were justified on three basis: 1) As part of the warrant for the Acura; 2) Pursuant to the powers under Criminal Code s. 489; and 3) Powers of search incidental to arrest. [21] Crown counsel argues that the fobs and swipe cards are covered under the provisions of the warrants that authorize seizure of“documentation”. He argues that the information contained in these seized items amounts to electronic information.

However, if thisargument is accepted, counsel have urged that the ultimate ruling on this point be postponed until after a ruling on the validity of theirwarrants. [22] I am not satisfied that the provisions of the warrant as worded authorize the seizure of these items.

The provision whichallowed the seizure of “residency/tenant/ownership documentation” contemplated physical items such as vehicle registration, tenancyagreements or invoices such as hydro or other bills linking an individual to an address or a vehicle. [23] Crown counsel argues that once the court determines that the arrest of the Applicant was lawful, it follows that the search ofthese items is authorized incidental to arrest as it was done to discover and preserve evidence of the offence. He references the testarticulated in R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51 at paragraph 14 which states: In Cloutier, L’Heureux-Dubé J. also recognized the potential breadth of this police power. She held that the court must balance thestate’s interests in law enforcement and the protection of the police against the arrested person’s interest in privacy in order to determinewhether a search was a reasonable and justifiable use of the police power. She then set out three important limits on the power to searchincident to arrest (at p. 186): 1. This power does not impose a duty. The police have some discretion in conducting the search.

Where they are satisfied that the lawcan be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assessthe circumstances of each case so as to determine whether a search meets the underlying objectives. 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be athreat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.

Thepurpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for exampleif the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.

3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation. If all three of these conditions are met, and the arrest itself is lawful, the search will be “authorized by law” for the purposes of s. 8 of the Charter . In the case at bar there is no allegation that the arrest was unlawful or that the search was abusive.

Rather, the problem in this case is that the objective and scope of the search exceeded its permissible limits. [ 24 ] I am satisfied that the seizure of the items in question was justified under the powers of seizure incidental to arrest and were also authorized pursuant to Criminal Code s. 489 . The key fob/swipe card were in plain view and officers articulated their belief that there was evidentiary significance respecting these items. I am satisfied that the items were seized for the purpose of discovering and preserving evidence.

I am also satisfied that there is a reduced expectation of privacy in these items in that they provided general access to the apartment buildings in question and not to the specific suites. Further, with respect to the key that provided access to the Ronald Avenue suite, I am mindful of two facts: 1) The police already had a search warrant for the apartment; and 2) That they did not use the key to access the apartment. [ 25 ] Having concluded that the items were properly seized under both the common law and the Criminal Code provision, there is no violation of the Applicant’s rights.

CHARTER S. 24(2) ANALYSIS [ 26 ] For the foregoing reasons, I am satisfied that the Applicant’s rights under Charter s. 9 were not breached. Even if the evidence established a violation, I am satisfied that the evidence in question ought to be admitted under Charter s. 24(2) , as the admission of the evidence would not bring the administration of justice into disrepute. Applying the well recognized test in R. v.

Grant , 2009 SCC 32 , I am aware that the WPS members were involved in a lengthy police investigation and were acting in good faith on the strength of their own observations and on the strength of warrants that provided judicial authorization for their actions. There is no evidence of significant police misconduct that would suggest the exclusion of evidence is warranted. [ 27 ] I am satisfied that the applicant had some Charter protection interest, but any interference with his expectation of privacy was minimal, as the items allowed access to the building only.

With respect to the key seized, while it was ultimately linked to the apartment, it was not used to gain entry. [ 28 ] Finally, the adjudication of the case on its merits supports the admission of the evidence obtained. The charges are significant and serious. The fobs/swipe cards are physical evidence. It has been often said that society expects criminal allegations to be adjudicated on the merits. Depending on the circumstances, I would also say that the administration of justice may be brought into disrepute by exclusion of evidence as well as by its admission.

The facts of this case do not support the exclusion of the items seized. CONCLUSION [ 29 ] I am satisfied that WPS members had reasonable grounds to arrest the accused and those reasonable grounds were objectively supportable. As such, the arrest of the accused with respect to the drug offences was lawful and not in contravention of Charter s.9 . I am also satisfied that the seizure of the items from the vehicle being the key fob/swipe cards was authorized either pursuant to the Criminal Code or the common law powers of arrest of seizure incidental to arrest.

The items seized can be admitted into evidence. “Original signed by” M.K. Harvie, P.J.