R. v. Moir Date:, 2013 BCPC 363

Citation: R. v. Moir Date: 20131106 2013 BCPC 0363 File No: 192233-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLIN DANIEL MOIR RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: P. Miller Counsel for the Defendant: M. Nathanson Place of Hearing: Surrey , B.C. Dates of Hearing: Sept. 23, 24, 25, 26, 2013 Date of Judgment: November 6, 2013

[ 1 ] THE COURT : Mr. Moir is charged on a four-count Indictment of possession of cocaine for the purpose of trafficking, possession of heroin for the purpose of trafficking, possessing a loaded restricted firearm, that being a pistol, and Count 4, possessing a firearm while not being the holder of a valid licence for that firearm. All of these events relate to an incident on September the 8th, 2011. [ 2 ] The investigation began in July 2011 when Surrey RCMP received information from a confidential source of unknown reliability.

That information included the phone number of the drug line which was being used as the dial-a-dope service to sell powder or crack cocaine, heroin and Oxycotin. A person named "Knuckles" owned the line and supplied drugs to a person named "Church" who would supply the drivers with narcotics to sell. Knuckles and Church were associated with the address of 19551 66th Avenue in Surrey; no suite number was given. [ 3 ] The police were informed that Knuckles and Church would package the drugs at that residence.

Several drivers were associated with that line, including Chris or Connor, who drove a red Acura 654 WDS, was the night shift driver. The other driver was someone named Bobby, also known as Ryan, who drove a Dodge Ram pickup truck, B.C. licence number CT3708. The information was that Ryan lived at 20620 67th Avenue. [ 4 ] Cst. Corcoran has stated that the informant was paid around $1,500 to $2,000 for his efforts. Cst. Hicks, the first Crown witness, made several drug purchases from that drug line in the summer of 2011, the last one occurring on September the 5th.

On August 23rd, he purchased drugs from a male who arrived in a grey Dodge pickup. None of these transactions involved Colin Moir. The information from the confidential source was originally received by Cst. Corcoran. He was told that the phone number 604-418- 3933 was being used as a dial-a-dope line and that a man with a nickname of "Knuckles", later learned to be the accused Moir, owned that line. He was supplied drugs to Church who would reload the drivers with narcotics for sale. Knuckles and Church would package drugs at a townhouse complex on 66th Avenue.

Several drivers were associated with that address, including a male with the alias "Chris" and a male whose name is Connor Hopkins. Chris was identified as Connor Hopkins. Knuckles is identified as being Colin Moir. The informant had provided information in the past but none of it had ever been acted upon. The police then attempted to corroborate the information they had received. On August the 5th of 2011, Hopkins was observed attending and leaving Unit 97 at the 66th Avenue complex. They also saw a silver Dodge Ram exit the townhouse complex.

On August 17th at 9:13 a.m., as the police were conducting surveillance of the 66th Avenue address, Church, identified later as Parisien, was observed meeting with Mr. Moir and then entered Unit 97. Cst. Corcoran recognized Mr. Moir from a photograph obtained from the police database. Mr. Moir was carrying a plastic shopping bag, which Cst.

Corcoran noted to be weighed down with something roughly the size of a softball. [ 5 ] At a police briefing session earlier that day, a plan was devised to arrest Moir if he attended or left the residence, then execute search warrants for both the Langley and Surrey residences that were under surveillance. Bobby and Parisien were arrested after leaving the residence. Then Mr. Moir and a female named Ashley were arrested as well. In court, Cst.

Corcoran stated that his reasons for arrest were all of the information received regarding purchasing of drugs, surveillance, along with other people leaving the residence with narcotics. The officer felt he had reasonable and probable grounds for arresting Mr. Moir for possession for the purpose of trafficking. [ 6 ] Cpl. Sielsky also testified during the voir dire on August 17th, 2011, he was involved in surveillance targeting a residence while it was believed to be operating a drug line. At the morning meeting, there was discussion about obtaining search warrants for the two suspect residents. Mr.

Moir was one of four targets. Cpl. Sielsky was the team leader who applied for and obtained a search warrant for the Langley residence. At around 5:00 p.m., he was listening to the police radio and learned that Mr. Moir had attended the 66th Avenue residence and was leaving. He directed another officer to arrest Mr. Moir. The reasons for the arrest were that they had arrested three people who were working the drug line. He believed Moir was moving drugs to another residence on the assumption that a search warrant had been obtained for the Langley residence and source information received was that Mr.

Moir was in charge of the drug line and he was aware that sales had been made on the line. [ 7 ] On cross-examination, Cpl. Sielsky admitted directing that the female be arrested even though he had no information on her and she had not appeared in any previous transactions. The stated grounds for her arrest were because she left with Moir and she could have been carrying product with her as well, which the officer admitted would be in the same way Mr. Moir could have been carrying something. [ 8 ] In his evidence, Cst. Torudag said that Cpl. Sielsky called out for Moir and Ashley's arrest.

After they left the residence, they approached the rear of a Cadillac Esplanade and Moir pulled down the tailgate showing the female a muffler. He also opened a cardboard box. The officer drew his firearm and advised that they were under arrest. Although he acknowledged the gun was pointed right at the female, he could not recall whether or not she appeared frightened.

She was then turned over to other officers, taken to the detachment and not allowed to call a lawyer for almost six hours. [ 9 ] Prior to closing its case on the voir dire , the Crown admitted there was no evidence that the confidential informant had first- hand knowledge that: 1. Knuckles was the owner of the dial-a-dope line number 604-418-3933; 2. Knuckles delivers drugs to Church; and, 3.

Knuckles and Church package drugs for sale at the 66th Avenue residence. [ 10 ] At the outset of these submissions, Crown counsel reminded the court that the accused is seeking to exclude a loaded handgun and a large amount of handguns which were found in the vehicle associated to Mr. Moir. [ 11 ] The Crown also submitted that, as set out by Cst. Corcoran, the police learned from the informant the phone number and street address, although not the specific unit number, specific names and specific vehicle information, including make and model number. [ 12 ] Cst.

Heuft made six purchases from the drug line and there was conversation regarding Church, also known as Andrew

Parisien. Accordingly, the Crown argues, there were reasonable grounds to arrest Moir. [ 13 ] The Crown has referred the court to the decision of R. v. Jir . Quoting from paragraph 31 of that decision, the court said: In my view, Constable Fehr’s belief that he had the grounds necessary to arrest Mr. Jir was objectively reasonable. The highly - specific information provided by the tipster with respect to vehicle, place, and time had been confirmed. This lent credence to the tip and made it likely that the tipster had personal knowledge of what he or she had reported.

That events unfolded as the tipster said they would bolster the reliability of the aspect of the tip pertaining to the Sebring being used for drug-related activity. In addition, there did not appear to be any reason for the Sebring t o have pulled into the church parking lot at that time of night. The trial judge was, therefore, correct in holding that Mr. Jir had been lawfully arrested. [ 14 ] In his reasons for judgment, Mr. Justice Groberman of our Court of Appeal, agreed with the result but politely disagreed on the issue of whether there were sufficient grounds for the initial arrest.

Quoting paragraph 45 of that decision, Mr. Justice Groberman said: In my view, the mere fact that a completely anonymous tipster was able to say that a particular vehicle would be at a place at a particular time was not sufficiently corroborative of the tip to give the officer reasonable grounds to believe that the accused was committing a crime. There are obvious dangers in relying on anonymous tips to supply grounds for arrest or for other incursions on the liberties of suspects. The anonymous informer may have maliciously fabricated information or may have had weak sources.

The tipster may have drawn the wrong inference from whatever information he or she had, or may simply have been relaying a hunch. To allow all anonymous tips to be relied on as grounds for arrest would be to seriously undermine the protections that individuals have against arbitrary intrusions on their liberties. It is well-established that the police may undertake searches and arrests based upon hearsay statements from anonymous informers .

The courts have attempted to protect the rights of Canadians by insisting that such tips be shown to have a reasonable measure of reliability before they can form the basis for police action that infringes on individual liberties. In Garofoli at 1457, the Supreme Court of Canada considered the factors that are to be taken into account in determining the reliability of a hearsay statement from an informer: The reliability of the tip is to be assessed by recourse to " the totality of the circumstances". There is no formulaic test as to what this entails.

Rather, the court must look to a variety of factors including: (

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

b) the informer ’s source of knowledge; (

c) indicia of the informer 's reliability such as past performance or confirmation from other investigative sources. In the case before us, the Crown argues that the tip provided the police with reasonable grounds to believe that Mr. Jir was committing an offence because the tip was detailed and was confirmed in part. The Crown also argues that the circumstances in which Mr. Jir was arrested – at night in an area near the border – were sufficiently suspicious as to contribute to reasonable grounds for arrest. In my view, this case is close to the line. The tip contained a moderate amount of detail.

It described a specific vehicle and provided that the vehicle would be driven to a specific place at a specific time. I do not, however, agree with the Crown’s submission that the place – a church parking lot a considerable distance from the border – or the time – late evening – made for particularly suspicious circumstances. This is particularly so when the arresting officer did not give any evidence to suggest that the area in question was known for smuggling of drugs by throwing them over the border. At paragraph 63, Mr.

Justice Groberman stated: The search of the vehicle trunk was not, in my opinion, a lawful one. It follows that if Mr. Jir has standing to make the argument, he is able to establish that there was an unreasonable search contrary s. 8 of the Charter . [ 15 ] The defence has argued that there were not sufficient grounds for the arrest of Mr. Moir, which would have the effect of excluding the evidence that was found in the vehicle. The defence pointed out that during the three-month period, the accused was only

observed on one prior occasion, that being August 17th, at the target residence. On September 8th, that being the date of the arrest, theCrown did not lead evidence of Mr. Moir specifically leaving the residence on 66th Avenue. Rather, they led evidence of the accusedwalking towards the vehicle on 68th Avenue. The thrust of the defence submission is that Mr. Moir's connection to that residence wastenuous at best and, if anything, that contradicts the informant's advice.

It was also admitted that although people could perhaps bearrested if there was evidence that the place was being used solely for drug trafficking, there was no evidence that this residence wasused solely for that purpose. [16] The court was also reminded that any evidence that was obtained as a result of the search warrant being authorized, it wasdiscovered after the arrest of Mr. Moir. In simplest terms, it was argued the police cannot arrest first then retroactively justify such anarrest.

Furthermore, the defence submitted that there was no evidence linking the accused to the dial-a-dope operation other than whathad been offered by the informant who had received a financial benefit from the police. It is also significant that the informationreceived led the police to have face-to-face dealings with suspected drug traffickers. They had no personal dealings with Mr. Moir.

Itwas further submitted that the informant was untried as the police had never acted upon information received from him in the past. [17] As to the issue of search incidental to arrest, the defence has argued that a search incidental to an unlawful arrest is prima facieunreasonable. There must be both subjective and objective grounds. The defence cited R. v. Storrey, a Supreme Court of Canada case,to support that proposition. The decision to arrest was made by Cpl. Sielsky, who gave that direction to Cst. Dixon. [18] The defence has argued that the decision to arrest Mr.

Moir was made at the morning briefing, if he was seen leaving theresidence, he was to be arrested. The police justified the arrest on the grounds that there was a possibility that he may be removingevidence which the police believed they were going to obtain a search warrant for. [19] As to the issue of reasonable and probable grounds for arresting the accused, the defence relies on the test set out in R. v.Storrey, which discusses the powers of arrest without warrant

section of the Criminal Code, that being s. 451(1). [20] I meant to thank both counsel at the outset for their considerable assistance in this trial, particularly in relation to the case lawthat has been provided to the court. [21] At paragraph 14 of R. v. Storrey, the court states: Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed theoffence of aggravated assault before they could arrest him.

Without such an important protection, even the most democratic societycould all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Coderequires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable andprobable grounds to believe that the person to be arrested has committed the offence.

In the case of an arrest made without a warrant, itis even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they basethe arrest. The court goes on to say: 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 probablegrounds did in fact exist.

That is to say a reasonable person, standing in the shoes of the police officer, would have believed thatreasonable and probable grounds existed to make the arrest. In

summary then, the Criminal Code requires that an arresting officer mustsubjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from anobjective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there wereindeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more thanreasonable and probable grounds.

Specifically they are not required to establish a prima facie case for conviction before making thearrest. [22] The defence has also relied on the decision of R. v. Jones, a decision of the British Columbia Supreme Court, that being adecision of Mr. Justice Bernard. In that case, during a search, the police found a magazine, a holster and a handgun under the seat. Upon finding these items, they decided to search the entire interior of the car because, in his experience, that being the police officer,people who carry one gun often have more.

In the centre console of the rear seat he found a handgun with a silencer. At the detachment,a subsequent search of Mr. Jones' vehicle, that being the trunk, was searched and two duct-taped balls of marihuana were found. In hisdecision, Mr. Justice Bernard stated at paragraph 42: A search, which has as its legal justification the common law power of search incident to arrest, will be unlawful if the arrest itself isunlawful.

In Caslake, supra, Lamer C.J. speaking for the majority said: In this case, the Crown is relying on the common law power of search incident to arrest to provide the legal authority for the search. InCloutier, supra, my colleague L’Heureux-Dubé J. (for a unanimous Court) discussed this power in detail. She held that it is an exceptionto the ordinary requirements for a reasonable search (articulated in Hunter, supra) in that it requires neither a warrant nor independentreasonable and probable grounds. Rather, the right to search arises from the fact of the arrest.

This is justifiable because the arrest itselfrequires reasonable and probable grounds (under s. 494 of the Code) or an arrest warrant (under s. 495). However, since the legality ofthe search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also. As Cory J. stated in R. v.Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 27, "[n]o search, no matter how reasonable, may be upheld under thiscommon law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful." In the case at bar, the arrest of Mr.

Skea was unlawful; accordingly, the search of the interior of Mr. Jones’ car was also unlawful. A

search which is not authorized by law is unreasonable (see R. v. Caslake, supra, para. 12); accordingly, I conclude that Mr. Jones’ s. 8Charter right to be secure against unreasonable search or seizure was infringed. [23] The defence has also relied on R. v. Debot, a Supreme Court of Canada decision, and referred the court to paras. 53 to 55. In myview, this is a scenario where there were no indicia of past reliability of the police informant as the tips in the past had not been actedupon.

The court states at paragraph 53: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based ona "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? I do not suggest that each of these factors forms a separate test.

Rather,I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in onearea may, to some extent, be compensated by strengths in the other two.

In Debot: With respect to the first aspect, the following data was relied on by the police in deciding to investigate the activities of the appellant: (1)Constable Gutteridge had received information predicting a drug transaction between Carpenter, List and the appellant at the Carpenterresidence on the evening of February 26, 1985; (2) the informant claimed to have acquired this knowledge directly from one of theactors; (3) the appellant had a prior conviction for a drug offence, albeit a minor one; (4) the other two participants in the transaction hadconvictions for narcotics related offences; (5) all three were reputed to be drug users and traffickers.

I find that the information received by Constable Gutteridge was sufficiently specific to warrant the attention of the police. Theinformant identified the participants and the courier, named the location of the transaction, and specified the time of day when the eventwould take place. He also gave the basis for his assertions, namely a conversation with one of the participants. The information did nottake the form of bald conclusory statements or "mere rumour or gossip" to use the words of Martin J.A. [24] The court is also referred by the defence to the decision of R. v.

Greffe, (SCC), [1990] SCJ No. 32, a 1989decision of the Supreme Court of Canada. Reading from paras. 46 and 47, in discussing the quote from the trial judge in that case aboutthe respective roles of the Crown, the police and the court: It is not for the court to determine what evidence the Crown will adduce, but equally the court will not act upon a deficiency of evidence. Nor will it embark upon speculation...

When police officers act on information which is hearsay two or three times removed it is not correct to ask a court to endorse thoseactions without making available to the court all of the preceding facts and circumstances.

Were a court to simply accept what is statedby the last person in the chain as reliable and accurate would be to abdicate to the police the judicial function. [25] In discussing whether or not there were reasonable and probable grounds to justify a warrantless search, the court stated at para.487: I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable groundsfor conducting a warrantless search. . . .

Highly relevant . . . are whether the informer's "tip" contains sufficient detail to ensure it isbased on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether thereare any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her storyby police surveillance. In the case at bar all that is on the record is a bald statement by the officer in respect of "confidential information received andbackground investigation".

The Crown conceded at trial that the existence of reasonable and probable grounds was an issue, and yetthey did not put on the record anything on which the trial judge could have assessed if the confidential information gave rise toreasonable and probable grounds. [26] The court has also been referred to a decision of the Yukon Territorial Court of R. v. Wing where the court referred to theSupreme Court of Canada decision of R. v. Debot, which concerned a warrantless search of an accused pursuant to information receivedfrom an informant regarding a future drug transaction.

At paragraph 18 of the decision, the court quotes Garofoli, a Supreme Court ofCanada decision, that says: Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe. (

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

(

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

b) the informer's source of knowledge; (

c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto , provide evidence of reliability of the information. The court goes on to state at para. 63: Furthermore, the seriousness of the offence, while still a consideration, ought not to trump the other considerations relevant to a s. 24(2) inquiry.

In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. [ 27 ] I should make it clear on the record at this point, the court is referring to the Supreme Court of Canada decision of Harrison when they say: In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system.

Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham , the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins , “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [ 28 ] I have carefully considered the evidence in this case, the submissions of counsel and the relevant case law. I agree with the defence submissions that the arrest of Mr. Moir was unlawful and his subsequent detention was also unlawful.

The police had no basis to conclude that the 68th Avenue residence was being used solely for drug-related activity. Further, as in R. v. Whitaker , a 2008 decision of our Court of Appeal, they had no reason to believe that everyone visiting the property was involved in criminal activity and they have advanced no justifiable reason why the female named Ashley, who was accompany Mr. Moir, was arrested at gunpoint, handcuffed, taken into police custody and not permitted to speak to counsel for several hours. She should not have been arrested simply because she was with Mr. Moir.

It is noteworthy that she was never charged in regards to this matter. As stated in para. 60 of Whitaker : The fact that a person is at or inside a place believed to contain drugs and respect of which a search warrant has been issued does not, without more, provide objective grounds for his or her arrest. [ 29 ] For the record, I have not lost sight of the fact that a warrant had not been issued at that point. The point of Mr. Moir's arrest was the search of the 66th Avenue residence.

The police are not entitled to arrest first and then determine whether the person arrested is connected to the offence under investigation. The remaining issue is whether or not the evidence is admissible under s. 24(2) of the Charter. In Harrison , the court wrote: The evidence on each line of inquiry must be weighed in the balance , to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. Furthermore, the seriousness of the offence, while still a consideration, ought not to trump the other considerations relevant to the s. 24(2) inquiry. The court stated: In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways.

Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham , the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins , “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282).

The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to

the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [ 30 ] I am in agreement with the conclusion reached in R. v. Wing : In my view, the need to safeguard the integrity of the prior judicial authorization process, particularly in relation to searches of private residences, outweighs the truth-seeking interests of the trial.

As a result, I would grant the defendant’s application and exclude any and all evidence obtained as a result of the police search from the trial in this matter. [ 31 ] Mr. Miller, do you wish to consider the Crown's position? [ 32 ] MR. MILLER: If I may, Your Honour, we can step out of the voir dire , and I have no further evidence. [ 33 ] MR. NATHANSON: Your Honour, in light of that, I would ask you to dismiss the charges against Mr. Moir. [ 34 ] THE COURT: Yes, all four counts are dismissed against the accused. (RULING CONCLUDED)