R v Lee, 2022 ABKB 724

Court of King’s Bench of Alberta Citation: R v Lee, 2022 ABKB 724 Date: 20221031 Docket: 200878445Q1 Registry: Calgary Between: His Majesty the King Respondent - and - Chris James Lee Accused/Applicant _______________________________________________________ Ruling on Voir Dire of the Honourable Justice Rosemary E. Nation _______________________________________________________ Background [ 1 ] The Accused argues that his right to be secure against unreasonable search or seizure under

section 8 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 ] was violated when a search warrant he alleges was improperly granted allowed police to search his vehicle. [ 2 ] The Accused is charged with intentionally causing the death of VS, thereby committing murder, contrary to

section 229 of the Criminal Code of Canada , RSC 1985, c C-46 [ Criminal Code ]. At the time this voir dire was heard, the whereabouts of VS’s body was unknown. Position of the Defence [ 3 ] The Accused argues the Information to Obtain a Search Warrant (ITO) failed to establish reasonable grounds to believe that the offence of murder had been committed because the affiant did not specifically swear to a subjective belief that VS was dead or that she had been murdered.

Because the subjective belief of the affiant was not explicitly set out, he argues there were not objectively reasonable grounds to believe the offence of murder was committed. [ 4 ] Further, the Accused argues the ITO failed to disclose sufficient evidence linking the target of the search warrant – the Accused’s Cadillac Escalade – to the alleged offence. Absent a sufficient link between the two, he argues there was no basis for a

reasonable belief that a search of the Escalade might furnish evidence related to the alleged crime, and therefore there is no basis forsearching the vehicle. In essence, the Accused argues that any belief that there might be evidence of the alleged offence in the Escaladewas purely speculative. [5] A similar argument is made that the accused was not sufficiently identified in the ITO.

The ITO refers to a “male”, but theAccused argues that male was not adequately connected by the affiant to the photo of a male that an independent witness identified as theAccused. [6] The Accused argues that the overall lack of specificity in the ITO resulted in speculation that was insufficient to ground thewarrant. This also includes a lack of specificity in the ITO about the “things” sought under the search warrant that police believed wouldafford evidence of the alleged offence.

The Accused bases this argument on the fact that most of the enumerated “things” in the ITOwere not explicitly linked to the Accused or VS. [7] The Accused argues that if the warrant was invalid, a warrantless search took place in breach of his

section 8 Charter rights.He further argues that the evidence gathered as a result of the execution of the warrant should be excluded from the trial pursuant tosection 24(2) of the Charter. Position of the Crown [8] The Crown argues that there was sufficient credible and reliable evidence to permit the judge who authorized the warrant, ora reviewing judge, to find reasonable and probable grounds to believe that an offence had been committed and that evidence of theoffence would be found in the Escalade.

The Crown points to the general statement in paragraph 2 of the ITO in which the affiant sworehe had reasonable grounds to believe – and did believe – that the offence of murder had been committed. [9] It is argued the affiant did not have to further swear he believed VS to be dead, or how the murder occurred.

The affiantsufficiently set out the evidence as it was gathered that led to his general statement that he believed the offence of murder had beencommitted. [10] Further, the Crown argues that there were specific details in the ITO to sufficiently confirm the identification of the Accusedand connect him to the last known location of VS, and to connect the Escalade to the investigation. The Law [11] Section 487(1) of the Criminal Code outlines the requirements for a lawfully issued search warrant.

The authorizing justice orjudge must be satisfied by information in the ITO that there are reasonable grounds to believe the target of the search warrant containsevidence of an offence that police suspect has been committed. [12] A judicially authorized search warrant is presumptively valid (R v Morton, 2020 ABCA 250 at para 22; R v Tran, 2019ABQB 244 at para 13; R v Campbell, 2010 ONCA 588 at para 45, aff’d 2011 SCC 32).

The Accused bears the onus of establishing thatthe warrant was invalid on a balance of probabilities (R v Clow 2012 ABQB 656 at para 15, citing Quebec (Attorney General) vLaroche, 2002 SCC 72 at para 68; R v Sadikov, 2014 ONCA 72 at para 83; Morton at para 22). [13] When the validity of a warrant is challenged, a reviewing court is to consider “whether the material filed in support of thewarrant, as amplified on review, could support the issuance of the warrant” (R v Bacon, 2010 BCCA 135 at para 25, citing R v Garofoli, (SCC), [1990] 2 SCR 1421 at p 1452 and R v Araujo, 2000 SCC 65 at paras 52, 56).

Sufficiency is to be determined by“whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”(Araujo at para 54). [14] The reviewing court’s role is not to “consider the ITO afresh and substitute [its] own view for that of the issuing judge”;rather, the court must consider whether the search warrant could have been issued based on sufficient reliable information (Morton atpara 22; Araujo at para 12).

To that end, the review requires a contextual analysis of evidence available to the issuing judge as opposedto a “piecemeal dissection of individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences”(R v Nero, 2016 ONCA 160 at para 68, citing R v Beauchamp, 2015 ONCA 260 and Sadikov at para 87). [15] With that in mind, an ITO does not need to prove that the named individual committed the offence.

It merely needs to“establish a reasonably grounded belief that an offence has been committed or that an offence is suspected to have been committed”(Nero at para 82, emphasis in original).

This is also true of the evidence sought through the search warrant: the ITO only has to establisha reasonably grounded belief that the target of the search will yield evidence relating to the commission of the alleged offence (Nero atpara 83). [16] Moreover, the ITO need only establish a reasonably grounded belief that the “things” sought would have some evidentiaryvalue to proving the commission of the alleged offence – the potential value of the evidence sought does not have to be so high such thatit would yield conclusive proof of guilt if successfully obtained (Nero at para 83).

After all, the purpose of section 487(1) of theCriminal Code is to empower investigators to obtain and preserve as much relevant evidence as possible.

It is for the courts to determinewhether the essential elements of the alleged offence are made out (CanadianOxy Chemicals Ltd v Canada (Attorney General), (SCC), [1999] 1 SCR 743 at para 22). [17] The standard of a reasonably grounded belief was reviewed by Wilson J of this Court in the context of a challenge to thevalidity of a search warrant in R v Nguyen, 2008 ABQB 400 at para 36, citing Mugesera v Canada (Minister of Citizenship andImmigration, 2005 SCC 40 at para 114 and R v Whitaker, 2008 BCCA 174 at paras 40-42: The standard of “reasonable grounds to believe” requires something more than mere suspicion but less than the civil standard of proof on

a balance of probabilities. “Reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.” The standard has been described as one of “credibly-based probability”, “reasonable probability” or “reasonable belief”. The phrase must be interpreted contextually. A determination of whether “reasonable grounds” exists requires a consideration of the totality of the circumstances and an assessment of the facts is made on a practical, non-technical and common sense basis.

The person deciding whether the reasonable grounds standard has been met is entitled to put “two and two together”. The ITO [ 18 ] The second paragraph of the ITO sets out in plain language the affiant’s belief that a murder had been committed: The Informant [ i.e. , the affiant] makes oath and says that he has reasonable grounds to believe and does believe that: The following offence has been committed:

a) Murder, contrary to

section 235 of the Criminal Code [ 19 ] The seventh paragraph sets out a number of items that the affiant swore they had reasonable grounds to believe would be found in the Accused’s Cadillac Escalade, and which there were reasonable grounds to believe would afford evidence of the offence of murder:

a) Biological Material;

b) Documents pertaining to ownership and/or occupancy;

c) Birth Certificate in name of [MAS];

d) Clothing, including but not limited to: i. Black tank top; ii. Dark colored purse with gold or silver metal/plastic buckles; Grey colored Skirt; iii. White Sneakers; iv. Blue Jeans; v. Patterned shirt;

e) Cellular Phones; Hereinafter referred to as the “things” [ 20 ] The ITO later sets out various details that had emerged through the investigation, including that: • VS was visiting from Montreal for medical appointments in Calgary and staying with her daughter’s family in Chestermere. • VS attended a morning medical appointment in Calgary on July 21, 2020, after which she was scheduled to meet “Kevin Barton” (an alias for the Accused, Chris Lee) for coffee at the Starbucks inside Chapters at Sunridge mall.

VS told her daughter that she was planning to sell Kevin Barton her ex-husband’s birth certificate for $10,000. • VS was seen on CCTV footage meeting a male at the Chapters Starbucks.

The affiant stated their belief that the male identified in the CCTV footage was Kevin Barton because VS “had told her family she was going to meet him at a Starbucks at a Chapters and had a meeting in here [ sic ] calendar to meet Kevin Barton at 12:30.” • The male and VS left the Starbucks together at around 1:05 PM on July 21, 2020. • A vehicle consistent with a white Nissan Rogue that police later observed Kevin Barton driving entered the parking lot in front of the Chapters immediately before the Starbucks meeting. • VS was reported missing by her family on July 22, 2020.

Their last contact with VS was at 11:37 AM on July 21, 2020 when VS called to say that her medical appointment was over and that she was going to meet Kevin Barton.

Her family reported that she was in good health and did not exhibit any unusual behaviour prior to her disappearance, and that they expected her to return home in the afternoon of July 21, 2020 after her meeting with Kevin Barton. • VS’s cell phone was last active at 11:38 AM on July 21, 2020. • VS did not attend a scheduled medical appointment on July 23, 2020. • There had been no activity on VS’s bank account, credit card, or online banking since her disappearance.

This was unusual as VS was dependent on her credit card. • Alberta Health Services had no record of any attendances by VS between July 21, 2020 and July 24, 2020.

• A police check of VS’s residence in Montreal was negative for VS. • VS’s daughter said VS was very punctual and it was completely unlike her to miss an appointment. • VS’s Nissan Altima that she had driven to the Starbucks meeting with Kevin Barton was located on July 28, 2020 in the nearby parking lot of Matrix Logistics.

A male was identified on CCTV footage backing the Nissan Altima into a parking stall before exiting the vehicle and walking northbound on July 21, 2020. • CCTV footage from a restaurant between the Starbucks and Matrix Solutions subsequently showed a male walking from the direction of Matrix Logistics north toward Chapters. VS’s daughter positively identified the male depicted in the CCTV footage as Kevin Barton. • VS’s cellphone records revealed a text message sent at 10:11 AM on July 21, 2020 to a phone number identified by VS’s son-in-law as Kevin Barton’s.

Records revealed the phone was registered to WL with “KB” as the user. An address associated with the phone number and registered to WL was obtained from the service provider (the “WL Address”). • Police surveilled the WL Address on July 29, 2020 and observed Kevin Barton enter the residence via the garage in a white Nissan Rogue registered to WL. • Police then conducted a door knock of the WL Address to which WL answered. When asked if she knew Kevin Barton, WL replied that she didn’t know him.

When asked if she knew Chris Lee, WL replied that they used to date but that she had not seen or spoken to him in years. WL also said she was alone in the residence despite police observing Kevin Barton enter the garage of the residence moments prior. • Police observed Kevin Barton leaving the WL Address in a beige Escalade at 12:22 AM on July 30, 2020. They later followed him to a car wash in the morning of July 30 and observed him cleaning the interior of the Escalade and discarding items into the garbage.

Those items retrieved from the garbage by police included PVC piping and odor absorbing agent. • Police also recovered a key fob adjacent to the garbage and subsequently confirmed that it opened VS’s abandoned Nissan Altima. Application of the Law to the Facts [ 21 ] While the affiant swore generally that he had reasonable grounds to believe and did believe that a murder was committed, the Accused suggests the failure to explicitly state the specific belief that VS was dead rendered the ITO insufficient. This cannot be.

In explicitly stating a belief that the offence of murder has been committed, it is implicit that someone is dead. Moreover, it is obvious from the ITO’s focus on VS as a missing person and the specific phrasing of the ITO that VS is the person believed to have been murdered.

For example, the ITO’s conclusion states that “[VS] has shown no footprints of life since her meeting with Barton at the Starbucks.” [ 22 ] With respect to the Defence’s argument that the Accused was insufficiently identified in the ITO, I am not persuaded that the unequivocal identification of Kevin Barton by VS’s daughter in the CCTV footage at VS’s last known location alive was an inadequate basis with which to tentatively identify Kevin Barton in other footage of the same area.

Common sense dictates that the issuing judge could have reasonably inferred that the tall, short-haired male in a distinctive patterned shirt pictured in still frames of the remaining CCTV footage was the same male identified by VS’s daughter based on their similar appearances. [ 23 ] Moreover, Kevin Barton was positively identified by the police outside the WL Address and at the car wash. In both instances the Accused was driving the Escalade, leaving little room to doubt the Accused’s association with the vehicle.

The Accused was also the last known contact of VS, he was seen cleaning and discarding items from the Escalade, and one of those items recovered from around the garbage was the key fob to VS’s abandoned Nissan Altima. These pieces of evidence alone could have formed a sufficient basis for the reasonable belief that a search of the Escalade would afford evidence relevant to the suspected murder of VS by the Accused. [ 24 ] Finally, I am not convinced of the warrant’s invalidity by virtue of the Accused’s argument that the “things” sought in the search warrant lacked a specific connection to the Accused or VS.

In particular, the still photos from the CCTV and other surveillance footage in the ITO clearly depict VS and the Accused wearing items of clothing and a purse consistent with the enumerated clothing sought via the search warrant. The issuing judge was entitled to put “two and two together” in inferring that those items were believed to be what the Accused and VS were wearing at or around the time VS went missing and police suspected her to have been murdered. [ 25 ] In

summary, the ITO clearly lays out the facts obtained in the investigation that would allow one to see what information was available to lead the affiant to reach the conclusion as to the murder of VS, the suspected involvement of the Accused, and the belief that relevant evidence could be recovered from the Escalade. [ 26 ] Viewed in isolation, it may be possible to undermine any one of the foregoing reasonably grounded beliefs. However, this Court is not to engage in such piecemeal analyses advocated by the Defence.

Viewed as a whole, the ITO discloses sufficient evidence such that the issuing judge could form a reasonable belief that VS was murdered by the Accused, and that the Escalade would afford evidence relevant to the offence. [ 27 ] I therefore find the search warrant was valid and there was no breach of the Accused’s

section 8 Charter rights. Heard on the 11 th and 12 th days of October, 2022. Dated at the City of Calgary, Alberta this 31 st day of October, 2022.

R.E. Nation J.C.K.B.A. Appearances: C Wilson for the Applicant S Parker, K.C. and W Tran for the Respondent