R. v. Lake, 2022 NLSC 17

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Lake , 2022 NLSC 17 Date : February 4, 2022 Docket : 202106G0002 Her Majesty The Queen v. Colin Lake Kaylynn Piercey Graham Tobin Before: Justice Peter A. O’Flaherty Reasons for Judgment Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: November 29, 2021 and January 10, 2022 Date of Judgment: February 4, 2022

Summary: The accused are jointly charged with offences under the Controlled Drugs and Substances Act . On a Pre-trial Application they alleged that their arrest and a vehicle search violated their rights under ss. 9 and 8 of the Canadian Charter of Rights and Freedoms . The accused sought a stay of proceedings under s. 24(1) and an Order for the exclusion of evidence under s. 24(2). Held: The Court found the arresting officer did not have reasonable and probable grounds to arrest the three accused and they were

arbitrarily detained under s. 9 of the Charter. The Court found that the search of the vehicle was not conducted incidental to a lawfularrest and as the warrantless search was not authorized by law it was an unreasonable search which violated the s. 8 Charter rights of theowner and driver of the vehicle. Under s. 24(2) of the Charter, the Application to exclude the evidence obtained as a result of the Charter breaches was granted. TheApplication under s. 24(1) of the Charter for a judicial stay of proceedings was dismissed. Appearances: Glen W. Picco, Q.C. Appearing on behalf of the Crown Robert B.

Hoskins Appearing on behalf of Colin Lake Marcus A. Evans, Q.C. Appearing on behalf of Kaylynn Piercey Renee L. F. Appleby Appearing on behalf of Graham Tobin Authorities Cited: CASES CONSIDERED: Faryna v. Chorny (1952), (BC CA), 2 D.L.R. 354, 4 W.W.R. 171 (B.C.C.A.); R. v. Storrey, (SCC), [1990] 1 S.C.R 241; R. v. Baldwin, 2008 NLCA 62; R. v Garofoli, (SCC), [1990] 2 S.C.R.1421; R. v. Debot, (SCC), [1989] 2 S.C.R. 1140; R. v. Whyte, 2011 ONCA 24; R. v. Whyte, 2011 SCC 49; R. v. Day,2014 NLCA 14; R. v. Day, 2014 SCC 74; R. v. Parsley, 2016 NLCA 51; R. v. Grant, 2009 SCC 32; R. v.

Collins, (SCC),[1987] 1 S.C.R. 265; Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158; R. v. Caslake, (SCC), [1998]1 S.C.R. 51; R. v Belnavis, (SCC), [1997] 3 S.C.R. 341; R. v. Taillefer, 2003 SCC 70 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Controlled Drugs and Substances Act, S.C. 1996, c. 19, CanadianCharter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 RULES CONSIDERED: Criminal Proceedings Rules of the Supreme Court of Newfoundland and Labrador, SI/2018-43 REASONS FOR JUDGMENT O'FLAHERTY, J.: INTRODUCTION [1] On March 10, 2020, at about 4:50 p.m., Royal Canadian Mounted Police (“RCMP”) Constable Christopher Mitchell washeading south on Route 210, also known as the Burin Peninsula Highway. While driving through the community of Swift Current,Newfoundland and Labrador (“NL”) he saw a distinctive grey Toyota Corolla with a brown driver’s side door travelling in the oppositedirection.

Constable Mitchell had received information from an informant that the owner of the vehicle he had just passed, GrahamTobin, was involved in trafficking Percocet in the Marystown area. Constable Mitchell had also received information from ConstableDarren Coady that his source had informed him five months earlier that every 3–4 days Mr. Tobin drove to the Clarenville area, afterwork, to pick up Percocet and he returned later the same evening, usually sometime around 9:00 p.m. [2] Assuming that he had just seen Mr.

Tobin driving north on Route 210 to go off the Burin Peninsula after work to pick up asupply of Percocet, Constable Mitchell contacted his superiors at the RCMP Detachment in Marystown (the “Detachment”). At ameeting at the Detachment at 6:00 p.m. on March 10, 2020, it was decided to conduct surveillance on Route 210 using three unmarkedpolice vehicles to follow Mr. Tobin if he returned to the Burin Peninsula that evening. [3] Mr.

Tobin’s car was spotted heading south on Route 210 by two RCMP officers, Sergeant Lee Lush and Staff Sergeant DanKnight, who had driven north and were between Piper’s Hole and Swift Current. The officers turned around to follow Mr. Tobin’s carbut at about 8:00 p.m. they received a priority call from Terrenceville and discontinued their attempted surveillance. At just before 9:15p.m. Constable Mitchell, who was alone in another unmarked vehicle, saw Mr. Tobin’s car headed south on Route 210 near the Jean DeBaie intersection. Constable Mitchell decided to stop the vehicle and arrest Mr.

Tobin for possession for the purpose of traffickingPercocet, believing he had reasonable and probable grounds to do so under s. 495(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46, (the“Code”). [4] When the vehicle was stopped Graham Tobin was in the driver’s seat. Colin Lake, who Constable Mitchell said he was

familiar with, was in the front passenger seat and Kaylynn Piercey, Mr. Lake’s girlfriend, was in the back seat. Constable Mitchell immediately arrested all three occupants of the vehicle for possession of Percocet for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”). [ 5 ] Constable Mitchell then conducted a visual examination of the car but did not see any evidence in plain view. At 9:18 p.m. Constable Coady arrived and at 9:44 p.m. Sergeant Lush and Constable Coady searched Mr.

Tobin’s car on the side of the road relying on the common law power to conduct a search incidental to a lawful arrest. Sergeant Lush said that during the search he saw a plastic baggie hidden inside the front passenger side air vent in the dashboard so he detached the cover of the air vent and seized the plastic baggie. The baggie was found to contain about 14 grams of a white powder that was later confirmed on laboratory analysis to be cocaine. [ 6 ] At 9:58 p.m. the police decided to discontinue the road side search because it was snowing and the area was poorly lit.

The vehicle was towed to the Detachment and at 10:45 p.m. the warrantless vehicle search was resumed. During that search, which concluded at 11:19 p.m., Sergeant Lush shone a light in the front driver side air vent in the dashboard, detached the vent, and seized a baggie containing 300 white pills which were later confirmed on laboratory analysis to be Percocet. [ 7 ] The three arrestees were held overnight in the cells at the Detachment.

On March 11, 2020, they were charged with possession of the controlled substances oxycodone and cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA , and with conspiring to commit the CDSA trafficking offences contrary to s. 465 of the Code . Later on March 11, 2020, they were brought before a justice and released on conditions.

Colin Lake, Kaylynn Piercey and Graham Tobin (the “Applicants”) are now charged jointly on a Bill of Indictment dated January 4, 2021, that they did, on March 10, 2020, at or near Jean De Baie, NL, have controlled substances in their possession for the purpose of trafficking, in particular cocaine and oxycodone, contrary to s. 5(2) of the CDSA . The Crown did not proceed with the charge of conspiracy. [ 8 ] Mr. Tobin and Mr. Lake have formally applied under s. 24(1) and s. 24(2) of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 , (the “ Charter ”), for a judicial stay of proceedings, and to exclude the evidence obtained by the police on March 10, 2020. They argue that their arrest on March 10, 2020, was unlawful, in that Constable Mitchell did not have reasonable grounds to arrest them, and their right under s. 9 of the Charter to be free of arbitrary detention was breached. If their arrest was unlawful, they argue the vehicle search incidental to their arrest was also unlawful. Mr.

Tobin argues that the warrantless search of his vehicle violated s. 8 of the Charter as it was not authorized by law and it was not conducted reasonably. Ms. Piercey did not bring a separate Charter application however the question of whether she was unlawfully arrested and her s. 9 Charter rights were breached, and any appropriate remedy, will be determined on the applications before the court. [ 9 ] The Crown must prove that the arrests of the three Applicants were lawful. The lawful exercise of the authority of a peace officer under s. 495(1) (

a) of the Code to arrest an individual without warrant is predicated upon the arresting officer having reasonable and probable grounds to believe that he, she or they have committed an indictable offence. I have concluded that the Crown has not met the requisite burden to show that Constable Mitchell had reasonable and probable grounds to arrest Mr. Tobin, Mr. Lake or Ms. Piercey on March 10, 2020. As a result the arrest of all three Applicants was unlawful.

It follows that the detention of the Applicants upon their unlawful arrest by Constable Mitchell was arbitrary and amounted to a breach of the rights of the Applicants under s. 9 of the Charter not to be arbitrarily detained. [ 10 ] It is well-established in law that Mr. Tobin’s vehicle is a location in which he enjoyed a reasonable expectation of privacy. The actions of Sergeant Lush and Constable Coady in entering and searching his vehicle without a warrant presumptively violated his right to be free of unreasonable search and seizure under s. 8 of the Charter .

The Crown therefore must prove that the warrantless searches of Mr. Tobin’s vehicle on the road side and in the Detachment were reasonable and it relied solely upon the common law power of search incident to arrest to justify the warrantless vehicle searches. I have found that the arrest of the three Applicants was unlawful and it follows that the searches of the vehicle conducted by the police incident to their arrests were not authorized by law. I have therefore concluded that the warrantless searches were a violation of Mr.

Tobin’s right under s. 8 of the Charter to be free of unreasonable search and seizure. [ 11 ] Under the s. 24(2) analysis I find that the conduct of Constable Mitchell in arresting the Applicants constituted an egregious and deliberate breach of the Charter rights of the Applicants. The impact of the Charter breaches on the Charter protected liberty interests of the Applicants was also significant, as they were arrested without proper grounds and imprisoned overnight. I am also satisfied that the warrantless vehicle searches were a serious and deliberate breach of Mr.

Tobin’s privacy interests, and the impact of the Charter breach on the privacy interests of Mr. Tobin was significant given the invasive nature of the vehicle searches. The failure of the arresting officer to ensure complete and timely disclosure of relevant information showed a further disregard for the Charter rights of the Applicants. [ 12 ] I realize that the charges against the Applicants are serious ones, and that the controlled substances seized by the police and the certificates constitute relevant and highly reliable evidence, without which the prosecution case will likely be ended.

On balance however, I have decided that the long term reputation of the administration of justice would be better served by this court disassociating itself from the unconstitutional conduct of the police officers in this case in order to prevent the further damage to the reputation of the administration of justice which would result from being seen to condone the improper police conduct in this case. [ 13 ] Under s. 24(2) of the Charter I therefore order the exclusion of all evidence seized from Mr. Tobin’s vehicle on March 10, 2020, and all evidence derived therefrom.

This is not a case in which the Applicants have demonstrated that the circumstances warrant the granting of the remedy of a judicial stay of these proceedings and I decline to make such an Order under s. 24(1) of the Charter . THE EVIDENCE [ 14 ] The Crown called three police witnesses, Constable Mitchell, Constable Coady and Sergeant Lush, who were all experienced members of the RCMP stationed at Marystown, NL, on March 10, 2020. The Applicants did not call evidence and did not testify. Constable Mitchell was the officer who exercised the power of arrest under s. 495(1) (

a) of the Code and arrested the Applicants on March 10, 2020, at Jean De Baie. I will review his evidence first, and in the greatest detail, and I will then review the evidence of

Constable Coady and Sergeant Lush. Evidence of Constable Mitchell [ 15 ] Constable Mitchell became an RCMP officer in 2006. He is assigned to the General Investigation

Section of the Marystown Detachment investigating Criminal Code and CDSA offences. He testified to his considerable experience in investigating drug offences, including trafficking and possession for the purpose of trafficking since 2009. He also testified that he has received training and has experience in drafting the documentation to request the issuance of search warrants. [ 16 ] At 4:50 p.m. on March 10, 2020, he saw Graham Tobin’s vehicle in Swift Current headed in a northerly direction towards Goobies, NL.

He recognized the vehicle at that time because it has a distinctive brownish colored front driver’s door and front quarter panel. Constable Mitchell testified that he had previously received information that Mr. Tobin trafficked in Percocet, that he was recently in possession of a large quantity of Percocet, and that he trafficked in the Marystown area. He said he had also received information from Constable Darren Coady regarding Mr. Tobin’s drug activities, in particular that Mr.

Tobin trafficked in Percocet, he frequently travels off the Burin Peninsula and goes to the Clarenville area to obtain his supply of Percocet, and that he then travels back to the Marystown area to sell it in the area. Based on observing Mr. Tobin headed north on the Burin Peninsula Highway, and the information he had received from his informant and from Constable Coady, Constable Mitchell said he contacted the Detachment and a meeting was held at which it was decided that the RCMP would set up surveillance on Route 210 to intercept Mr.

Tobin if he travelled back into the Marystown area. [ 17 ] Constable Mitchell said the officers then took three unmarked police vehicles and staggered the vehicles north along the Burin Peninsula Highway to try to observe Mr. Tobin if he travelled back into the Marystown area. Constable Mitchell testified that later that evening he did in fact observe Mr. Tobin’s vehicle travelling back into the Marystown area, and he stopped Mr. Tobin in his vehicle just outside Marystown in an area close to the intersection with the turn off to Jean De Baie at 9:15 p.m. [ 18 ] Constable Mitchell said that when he saw Mr.

Tobin’s vehicle he immediately activated his emergency equipment and stopped the vehicle. He walked up to the vehicle on the driver’s side and identified the driver as Mr. Tobin. He observed there were two other individuals in the vehicle. Constable Mitchell said that based on the information he had received, and the observations he had made, he had reasonable and probable grounds to arrest all three for possession of controlled substances for the purposes of trafficking. He placed them under arrest, and advised them of their right to counsel and police caution.

When the members on the surveillance operation started to arrive at the scene he had Mr. Tobin accompany him to his police vehicle. [ 19 ] Constable Mitchell testified that when he decided to stop the vehicle at Jean De Baie he was acting on information from two sources to form his reasonable and probable grounds, a source he handled himself (the “Mitchell source”) and a source handled by Constable Darren Coady (the “Coady source”). [ 20 ] He testified he has known the Mitchell source since 2016 and the source has provided information in excess of 50 times.

He said some information provided in the past was relied upon to obtain search warrants under the CDSA which resulted in seizures and charges. Constable Mitchell said that by March 10, 2020, his source had provided information on 5–10 occasions for financial reward. Constable Mitchell confirmed that his source was a drug user, and a convicted criminal, but had no convictions for fraud, forgery or mischief. [ 21 ] In terms of the specific information he received from the Mitchell source and when he got the information, Constable Mitchell testified that his source told him Mr.

Tobin sells Percocet in the Marystown area, and that Mr. Tobin sells Percocet from his vehicle, a gray Toyota Corolla. He further testified that his source had personally observed Mr. Tobin recently in possession of a large quantity of Percocet, well over a hundred pills, and that when his source had personally observed Mr. Tobin in possession of the large quantity of Percocet he was in the gray Toyota Corolla with Mr. Lake and Ms. Piercey.

Constable Mitchell said he did not want to be too specific about when he got this information, as it may identify the source, but testified that he received the information as recently as 10 days before the arrests. [ 22 ] In terms of the specific information he received from the Coady source and when he got the information, he testified that the Coady source told Constable Coady that Graham Tobin trafficks in Percocet, that he regularly travels off the Burin Peninsula to the Clarenville area to obtain his supply, every 3–4 days, and that he leaves in the evening usually when he finishes work and returns back in the Marystown area usually around 9:00 p.m.

Constable Mitchell could not recall when Constable Coady gave him that information but that it would have been “recent, fairly recent” information. He qualified this evidence by saying it would have been recent, but how recent he could not say, and he testified that Constable Coady would be able to give a better time line on when he received the information and when he relayed it to Constable Mitchell. I note, parenthetically, that Constable Coady confirmed that the information he had provided to Constable Mitchell about Mr.

Tobin was five months old by March 10, 2020, and the date when the information was received was searchable in a RCMP database. [ 23 ] In terms of his grounds for the arrest of Mr. Tobin, Constable Mitchell said that, at 4:50 p.m., he had observed Mr. Tobin “travelling off the peninsula” around the time the Coady source said he usually leaves to obtain his supply of Percocet. Constable Mitchell said he observed him in the same vehicle identified by his source as being driven by Mr. Tobin, which was the same vehicle that was identified by the Coady source as being used when he obtained his supply of Percocet.

Finally, Constable Mitchell testified that the RCMP surveillance picked up Mr. Tobin coming back into the Marystown area around the time in the evening that the Coady source said he usually comes back to the Marystown area with the Percocet. [ 24 ] Constable Mitchell summarized his reasoning leading to his subjective belief he had reasonable grounds for Mr. Tobin’s arrest as follows: we had the vehicle leaving the Burin Peninsula at the time the Coady source said it was leaving, with the vehicle the two sources said Mr.

Tobin drives to pick up his supply, and the vehicle came back into the Marystown area at the time that the Coady source said he returns from the Clarenville area. Therefore, based on the totality of his observations and the information he had received from his source and the Coady source, he felt he had reasonable and probable grounds to believe that Mr. Tobin had gone to the Clarenville area to obtain his supply of Percocet, and that he was travelling back to the Marystown area to traffick in that supply of

Percocet. [ 25 ] In terms of his grounds for the arrest of Mr. Lake and Ms. Piercey, Constable Mitchell testified he was familiar with Mr. Lake and Ms. Piercey, and said the Mitchell source had recently told him that Mr. Tobin was observed with a large quantity of Percocet in his vehicle, well over a hundred pills, while Mr. Lake and Ms. Piercey were in the vehicle with him at the time. Constable Mitchell testified that when he stopped the vehicle and observed Mr. Lake and Ms. Piercey, he felt that he had reasonable and probable grounds to believe that they had travelled with Mr.

Tobin to Clarenville to obtain the supply of Percocet, that they had knowledge of why he was going to Clarenville, and that they knew he had obtained a supply of Percocet and it was in the vehicle, so that was why he placed them under arrest. [ 26 ] Constable Mitchell was asked about the search of Mr. Tobin’s vehicle on the side of the road and testified that he believed the search was incidental to arrest.

He explained that because the accused were lawfully arrested for possession for the purpose of trafficking he felt there was going to be evidence in the vehicle or on their persons to support the charges, or the offences, he was arresting them for. Constable Mitchell said the vehicle search commenced at 9:44 p.m. and he acted as the Exhibit Custodian documenting the items seized.

He testified that during the road side the baggie containing cocaine was located in behind the vent cover, and Sergeant Lush told him that he had noticed the vent covers were loose fitting and he felt there could have been something concealed so he removed them. [ 27 ] On cross-examination Constable Mitchell agreed that his observation of Mr. Tobin at 4:50 p.m. was a chance encounter on the highway, that he had received no information that Mr. Tobin was going anywhere to pick up a supply of drugs on March 10, 2020, and that Mr. Tobin did not have a record or any charges for drugs. He did not follow Mr.

Tobin’s vehicle, saying it is nearly impossible to do surveillance in a marked vehicle, or request the RCMP in Clarenville to conduct surveillance of the vehicle. He admitted that he did not actually know where Mr. Tobin went after he observed his vehicle in Swift Current, and he was assuming that Mr. Tobin had left the Burin Peninsula, and assuming that he had gone to the Clarenville area to pick up a supply of Percocet to sell in the Marystown area. He admitted there was no surveillance conducted after Mr. Tobin’s vehicle returned to Marystown to corroborate that Percocet was being sold by Mr. Tobin.

Finally, Constable Mitchell agreed it is not uncommon for residents of the Burin Peninsula to leave for entirely legitimate reasons, that it happens daily, and that the Burin Peninsula Highway is the only way for residents to go on or off the Burin Peninsula. [ 28 ] In relation to Mr. Lake or Ms. Piercey, on cross-examination Constable Mitchell admitted that when he saw the grey Toyota Corolla in Swift Current at 4:50 p.m. on March 10, 2020, he did not see anyone else in the vehicle besides the operator, who he believed was Mr. Tobin. He agreed he did not know when or where Mr. Tobin had picked up Mr. Lake or Ms.

Piercey, or if they were in Clarenville that day, and that he did not know if the drugs were already in Mr. Tobin’s vehicle when it was seen by Constable Mitchell in Swift Current. He also agreed there was no reference to Mr. Lake or Ms. Piercey by the RCMP officers on March 10, 2020, prior to their arrest, and that neither of them has a record or any charges for drug offences. [ 29 ] Constable Mitchell was cross-examined at length about an undated “source qualification” document which was prepared by him and disclosed to counsel for the accused (the “Source Qualification”).

Constable Mitchell agreed he was responsible for the disclosure on the file, and that the document was prepared by him at the request of the Crown, but he was unable to say when the document was prepared by him or disclosed.

The Source Qualification stated, in relation to the Mitchell source, that “the information provided by my Source in relation to Graham Tobin is that he sells Percocet, that he drives a grey Toyota Corolla and that he always has Percocet on him when he is in his vehicle.” In relation to the Coady source, the Source Qualification stated “the information provided by Constable Coady’s Source in relation to Graham Tobin was that he sells Percocet, he travels north on the Burin Peninsula Highway to obtain his supply of Percocet and that he uses his grey Toyota Corolla to go get his supply of Percocet.” Constable Mitchell agreed that the Source Qualification was likely prepared around June 20, 2020, when it was sent to counsel, and that no additional source information was disclosed before November 29, 2021. [ 30 ] Counsel for the Applicants pointed out that the Source Qualification contained no reference to the “new” information from the Coady source Constable Mitchell provided in court on November 29, 2021, namely that he had received information that Graham Tobin regularly travels off the Burin Peninsula to the Clarenville area to obtain his supply, every 3–4 days, and he leaves in the evening usually when he finishes work and returns back in the Marystown area usually around 9:00 p.m.

It was pointed out that the Source Qualification contained no reference to the “new” information from the Mitchell source about Mr. Lake and Ms. Piercey Constable Mitchell provided on November 29, 2021, namely that ten days before the arrests he had received information that the Mitchell source had personally observed Mr. Tobin in possession of a large quantity of Percocet, well over a hundred pills, and that when Mr. Tobin was in recent possession of the large quantity of Percocet he was in the gray Toyota Corolla and Mr. Lake and Ms.

Piercey were in the vehicle with him. [ 31 ] Constable Mitchell admitted that the content and specific level of detail in the source information disclosed in the Source Qualification was different from his evidence on November 29, 2021, but he suggested that there were initially concerns regarding potentially identifying the sources when the undated Source Qualification was first prepared.

Constable Mitchell did not offer any explanation for why any of the “new” information he testified he relied upon in forming his grounds for arrest was not disclosed to counsel for the Applicants in advance of the hearing on November 29, 2021, given his awareness of the Charter applications and the continuing obligation to provide full disclosure. [ 32 ] Constable Mitchell admitted that the new information he said he personally received from the Mitchell source that Mr. Lake and Ms. Piercey were recently observed by the source in the grey Toyota Corolla with Mr.

Tobin while he was in possession of a large quantity of Percocet a few days before the arrest was not information that was withheld by him for any reason of source confidentiality. [ 33 ] Constable Mitchell specifically admitted that the source information which he testified he relied upon for his grounds to arrest Mr. Lake and Ms. Piercey, namely that they were recently observed by the source in the grey Toyota Corolla with Mr.

Tobin while he was in possession of a large quantity of Percocet, was not referenced when he completed the sworn Information to Obtain a Search Warrant (“ITO”) on March 19, 2020, to search the cell phones seized from Mr. Lake and Ms. Piercey on arrest. He admitted that he was putting his “best foot” forward to the justice reviewing the ITO, in order to obtain a warrant to search the cell phones of the Applicants for evidence of the offences he arrested them for, however he was unable to explain why the non-privileged source information that he

testified he relied upon to support his grounds for arrest on March 10, 2020, was not included on March 19, 2020, saying “I can’t speak to it, I didn’t include it.” [ 34 ] Constable Mitchell admitted under cross-examination by Mr. Tobin’s counsel that he had already decided to arrest Mr. Tobin when he pulled over the vehicle and was walking up to the window. He further admitted under cross-examination that, whether or not he had received the information he claimed he had recently received, namely that Mr. Lake and Ms. Piercey had been seen in the vehicle with Mr.

Tobin with a large quantity of Percocet, that when he pulled Mr. Tobin’s vehicle over on the highway he would have arrested them anyway because they were in the vehicle with him. He agreed he would have arrested anyone he found in that vehicle on March 10, 2020. He also agreed that he would hold anybody charged with a drug offence overnight if by the time of arrest he or she could not be taken before a justice. The Evidence of Constable Coady [ 35 ] Constable Coady has had prior experience and involvement since 2018 with drug investigations and handling confidential informants.

He received information prior to March 10, 2020, about this investigation from a confidential informant who had been providing information to him since August 2018. According to Constable Coady his source had provided information 31 times and the information had been acted upon a number of times in investigations under the Highway Traffic Act , the Code and CDSA . In his opinion the source information was reliable. [ 36 ] Constable Coady confirmed that information obtained from his source relevant to this investigation was withheld from the Source Qualification disclosed to counsel.

He testified that the information was withheld because the source had informed him, when the Source Qualification was being prepared, that the information may identify the source. Constable Coady said the information that was withheld by him was: that Graham Tobin had been seen on the Marystown Mall parking lot with a number of Percocet; that Graham Tobin was doing runs to the Clarenville area to pick up Percocet; and that Graham Tobin would usually leave after work and come back that night.

He said he also received information that Graham Tobin was driving a black Sunfire vehicle and the grey Toyota Corolla. [ 37 ] Constable Coady admitted he was aware the Charter applications were being made, and that disclosure is an ongoing obligation, and he agreed that no efforts were made to amend the disclosure or provide further disclosure before the hearing.

He said there was no request made to him so he did not go back to the source to see what else could be disclosed until the Friday before Monday, November 29, 2021, when he spoke with the Coady source who confirmed the disclosure of the new information would not at this stage tend to identify the Coady source. [ 38 ] Constable Coady testified that on March 10, 2020, he received a phone call from Constable Mitchell who told him he was travelling from Swift Current towards Marystown when he observed Graham Tobin driving a silver Corolla on Route 210 towards Goobies.

He said he understood that Constable Mitchell believed, based on prior intelligence, that Graham Tobin was making a run to pick up a supply of Percocet, and it was decided to try to set up surveillance on Graham Tobin to see if he returned back to the Burin Peninsula area. Constable Coady confirmed that he, Sergeant Lush and Staff Sergeant Knight attended the Detachment and then went patrolling on Route 210 in an effort to locate Mr. Tobin coming back to the Burin Peninsula.

He said Graham Tobin was observed coming back towards Marystown shortly after 9:00 p.m. and Constable Mitchell advised him that he had stopped Graham Tobin’s vehicle just north of the Jean De Baie branch road and arrested Graham Tobin, Colin Lake, and Kaylynn Piercey. [ 39 ] Constable Coady testified that after the Applicants were transported to the Detachment he, Constable Mitchell, Sergeant Lush and Staff Sergeant Knight stayed to conduct a search incidental to arrest.

During the road side search Sergeant Lush located a baggie of white powder in the passenger vent, and they then made a decision to suspend the search due to the conditions and bring the vehicle to the Detachment to continue the search. During the search at the Detachment the officers seized a baggie of pills, and a sample of the pills and white powder were sent off to Health Canada to be analyzed. The powder tested positive for cocaine on a test strip. [ 40 ] On cross-examination Constable Coady confirmed that the information about Mr.

Tobin’s activities was received by Constable Coady from the Coady source in November 2019. He agreed that was when the Coady source had told him Mr. Tobin was selling Percocet and making runs to Clarenville every 3–4 days. He also said that was the last source information he had received about Mr. Tobin prior to March 10, 2020, and it was on a date searchable RCMP database. Constable Coady agreed the source information he received in November 2019 was “pretty general.” He also confirmed that none of the information he ever received from the Coady source at any time related to Mr. Lake or Ms.

Piercey. [ 41 ] Constable Coady agreed his role on March 10, 2020, was to wait and see if Mr. Tobin returned on Route 210. He agreed that no arrest or search warrant was ever sought or issued so if Mr. Tobin did not come back there would have been no stop and no arrest that night. He further agreed the RCMP had decided to monitor Route 210 to see if he came back, they had no information to guarantee he would be back, and the plan made at the Detachment was to carry out surveillance to see if Mr.

Tobin would come back and to corroborate the information they had received. [ 42 ] Constable Coady testified that he and Constable Mitchell had also conducted surveillance on Mr. Tobin in October, 2019. He said they observed him leaving the area on the highway but did not follow him as they did not have the resources. He said they observed him coming back about four and a half hours later but lost contact with the car and were not able to verify anything else. He acknowledged that there are many legal reasons someone might make a trip off the Burin Peninsula.

The Evidence of Sergeant Lush [ 43 ] Sergeant Lush is the NCO in charge of Operations at the Marystown Detachment. He said Constable Mitchell called him on March 10, 2020, while heading south on Route 210 to say he had passed Graham Tobin’s car, a Toyota Corolla, which was heading north. Sergeant Lush said Constable Mitchell and Constable Coady said Mr. Tobin was believed to be involved in trafficking of Percocet on the Burin Peninsula.

Sergeant Lush said he spoke to Staff Sergeant Knight and Constable Coady and they decided the observation of the vehicle was worth investigating and conducting surveillance to see if Mr. Tobin would return the same evening as indicated by previous intelligence.

[ 44 ] Sergeant Lush said the officers left the Detachment in three separate unmarked police vehicles. Constable Coady was in one, Constable Mitchell in a second, and he and Staff Sergeant Knight in a third. While they were driving north in the area between Piper’s Hole and Swift Current they passed Graham Tobin’s vehicle headed in the opposite direction on Route 210. Sergeant Lush said they went some distance before turning around and when they got back in cell service they told Constable Coady and Constable Mitchell that they had passed the Tobin vehicle.

Weather conditions turned very snowy and windy, and by the time they reached the Terrenceville intersection it was stormy and they broke off and left Route 210 to attend a priority call received at about 8:00 p.m. from Terrenceville, NL. [ 45 ] Sergeant Lush said when they cleared the call they heard Constable Mitchell say that he had located the vehicle and he was initiating a stop of the car around Jean De Baie. When they arrived on the scene Graham Tobin’s car was pulled over by Constable Mitchell and Constable Coady was present.

Sergeant Lush said he called the Detachment to get the assistance with transport and get some light on scene because it was a dark area where the vehicles were parked. The Applicants were transported back to the Detachment by Constable Charlebois and Constable Stone. [ 46 ] Sergeant Lush and Constable Coady started the search of the vehicle incidental to arrest on the passenger side at around 9:45 p.m. and Constable Mitchell was the exhibit custodian.

Sergeant Lush checked the glovebox, the vents, and under the seat, and he noticed in the passenger side air vent there was a bag with a white substance inside the vent. Sergeant Lush said he used his thumb and forefinger and touched the louver and the vent cover came out. He seized a baggie of white powder which he believed to be cocaine. Sergeant Lush the vent was easily moved with his fingers and he did no damage.

Sergeant Lush said that because of the conditions, if they searched the driver’s side they would be in a vulnerable position because the roads were slippery and snow covered, and it was dark and windy. The police therefore suspended the search and had the vehicle towed to the Detachment. [ 47 ] Sergeant Lush testified that the vehicle arrived at the Detachment an hour later and once it got put into the safety bay they resumed the search. He said that in the driver’s side vent he saw another bag, and that vent louver was loose, so he shook it out and located a bag of white pills.

When the search was completed they had seized a bag of 300 pills, and a bag of what was believed to be cocaine and they took samples for testing. He also did a test of the powder that showed positive for cocaine. [ 48 ] On cross-examination by counsel for Mr. Lake, Sergeant Lush agreed that he did not formulate the grounds for the arrest of the Applicants. He confirmed that when he saw Graham Tobin’s vehicle headed south towards Marystown he did not see Graham Tobin driving. When he was asked whether they had initially intended to follow Mr.

Tobin’s vehicle to see what he did in Marystown, Sergeant Lush testified “Once we were in a position to, yeah for sure, to do surveillance to see if we could see he was returning south, southbound, and once that was established it was to get in a position with the other vehicles where it could be safely stopped.” [ 49 ] Sergeant Lush confirmed that his notes indicated the RCMP decided to conduct surveillance on March 10, 2020, to “corroborate previous information relating to Tobin’s travels to and from Marystown.” He agreed that corroboration of the information involved more than seeing Mr.

Tobin driving back, it also involved seeing if he was going to other houses to do drug deals, and having three cars follow Mr. Tobin around when he returned to the area could provide further corroboration. [ 50 ] Sergeant Lush acknowledged that to his knowledge the tip did not specify the location, the amount of drugs, the price paid, or who Mr. Tobin was buying from, and it did not mention Mr. Lake at all. When it was suggested to Sergeant Lush that it was a pretty limited tip he said that he never had all the information from the confidential informant.

Sergeant Lush admitted he was not aware of the age of the information, and when he was asked if he knew that the information that Graham Tobin travels to the Clarenville area to get drugs in the evening returning the same night was five months old, he said “I don’t recall it being that old.” [ 51 ] Sergeant Lush agreed that when the officers left the Detachment in the unmarked police vehicles at about 6:00 p.m. on March 10, 2020, their purpose was to conduct continued surveillance and corroboration of the information. When asked whether it was his intention to arrest Mr.

Tobin if he did meet him coming back on the highway, Sergeant Lush said he wasn’t the arresting officer, but he said “we discussed that if he was returning (to the Marystown area) within the time frame that the confidential informants have normally stated he would come on back that evening, that if located we would stop him before he got to Marystown.” THE ISSUES [ 52 ] I would frame the issues on this pre-trial Charter application as follows: A. Did Constable Mitchell have reasonable grounds to make a warrantless arrest of the Applicants? B.

Were the Applicants arbitrarily detained in violation of s. 9 of the Charter ? C. Were the privacy rights of Mr. Tobin violated under s. 8 of the Charter ? D. Should the evidence obtained be excluded pursuant to s. 24(2) of the Charter ? E. Should I order a stay of these proceedings pursuant to s. 24(1) of the Charter ? ANALYSIS Assessment of the Evidence [ 53 ] In this application, the credibility and reliability of the evidence of the arresting officer, Constable Mitchell, and other police evidence, has been vigorously challenged by the Applicants.

They argue that the evidence shows Constable Mitchell has attempted to

“bootstrap” the insufficient grounds he had for the arrest of the Applicants, with previously undisclosed additional information he claimshe received about Mr. Tobin, Mr. Lake and Ms. Piercey within 10 days of the arrest of the Applicants on March 10, 2020 (the“additional information”).

The Applicants argue that this evidence is not credible or reliable and should not be accepted by me. [54] The Applicants further argue that Constable Mitchell and Constable Coady are not permitted to amplify the informationreceived from the Coady source, which was previously disclosed in June 2020, with new details about the timing and frequency of Mr.Tobin’s trips off the Burin Peninsula to obtain a supply of Percocet (the “amplified information”) because the officers failed to complywith the obligation to disclose all relevant information to the Applicants in a timely manner. [55] The determination of these two issues is obviously important to determining what information and what observations were, as amatter of fact, relied upon by Constable Mitchell prior to the arrests of the Applicants.

If I do not accept the arresting officer had the newdetails in the additional information he said he was provided with by his own source within 10 days of the arrest of the Applicants onMarch 10, 2020, then his grounds for arresting the Applicants, and the case, will largely turn on one five month old tip provided toConstable Coady. [56] I will therefore assess the credibility and reliability of the challenged evidence, and I will make findings of fact about theinformation and observations which were, as a matter of fact, relied upon by Constable Mitchell based on the evidence I accept.

I willthen turn to the application of the relevant legal principles to the facts I find. [57] The Source Qualification had stated, in relation to the Mitchell source, only that “the information provided by my Source inrelation to Graham Tobin is that he sells Percocet, that he drives a grey Toyota Corolla and that he always has Percocet on him when heis in his vehicle.” The additional information however was that the source had personally observed Mr. Tobin recently in possession of alarge quantity of Percocet, well over a hundred pills, and that when his source had personally observed Mr.

Tobin in possession of thelarge quantity of Percocet he was in the gray Toyota Corolla with Mr. Lake and Ms. Piercey at the same time. Constable Mitchell alsotestified that he had relied upon the additional information in forming his grounds for the arrest of Mr. Lake and Ms. Piercey after thetraffic stop. [58] Judges have no special ability to determine whether the evidence of a witness should be believed.

They rely on common senseand human experience to decide whether evidence is credible and to decide what use to make of it, if any, in making findings of fact.They take into account factors like the candor of the witness, whether the story accords with what a practical and informed person wouldconclude was reasonable in the circumstances, and how the story stands up under cross-examination. (Faryna v. Chorny (1952), (BC CA), 2 D.L.R. 354, 4 W.W.R. 171 (B.C.C.A.)). [59] I must consider the late timing and circumstances of the officer giving this evidence. Constable Mitchell is an experiencedinvestigating officer.

He anticipated Charter challenges and was aware of the obligation to disclose all relevant information to theApplicants. Viewed in the overall evidentiary context, the additional information is the only information that even mentioned Mr. Lakeand Ms. Piercey, let alone indicated they were involved with drugs or Mr. Tobin. No disclosure was provided of the additionalinformation prior to November 29, 2021, and he offered no explanation for the failure to comply with the obligation.

The late timing andthe circumstances do raise a concern about credibility and reliability. [60] Critically, Constable Mitchell also admitted under cross-examination by Ms. Piercey’s counsel that the additional informationwas not withheld by him for any reason of source confidentiality. He had also previously testified to his training and experience indrafting documentation to obtain search warrants, and to knowing he was obliged to put his best foot forward in applying for the judicialauthorization when he prepared the ITO on March 19, 2020, seeking a warrant to search the personal information of Mr.

Lake and Ms.Piercey on their cell phones. [61] It would be reasonable to expect that if there were specific grounds for the arrest of Colin Lake and Kaylynn Piercey theywould be included in the ITO prepared on March 19, 2020. I note they were then charged along with Mr. Tobin with conspiring tocommit the trafficking offences, the proof of which lies in evidence of pre-planning.

I must ask why a trained police officer, knowing hewas obliged to put his best foot forward in applying for a judicial authorization, would leave out detailed, non-privileged, recent andrelevant first-hand information he said had relied upon in forming his grounds for the arrest of Colin Lake and Kaylynn Piercey ninedays earlier on March 10, 2020? Constable Mitchell could not explain why, saying “I can’t speak to it, I didn’t include it.” His evidenceon this point lacked candor and did not stand up on the cross-examination by counsel for Ms. Piercey. He subsequently admitted thatwhen he pulled Mr.

Tobin’s vehicle over on the highway he would have arrested them anyway, without the additional information,simply because they were in the vehicle with him. Furthermore, he agreed he would have arrested anyone he found in that vehicle onMarch 10, 2020. [62] The additional information purports to provide more details about the illegal activities of Mr. Tobin than the SourceQualification, and to be based on first-hand knowledge and personal observation.

It would be reasonable to expect that if ConstableMitchell had this information by March 10, 2020 it would have been included in the Source Qualification disclosed on June 20, 2020. Iwas not provided any explanation for why it was not. I find this is another reason for me to view the late introduction of this evidencewith circumspection. [63] I have reviewed the evidence of Constable Coady and Sergeant Lush about the intelligence received by March 10, 2020. Whileboth referred in detail to the amplified information from the Coady source as forming part of the intelligence about Mr.

Tobin that hadbeen received by the RCMP before March 10, 2020, neither referred to the additional information as having been received or havingbeen referred to in their discussions and meeting on March 10, 2020. [64] Finally, Constable Mitchell gave evidence which supports the conclusion that his decision to arrest Mr. Lake and Ms. Pierceyhad little to do with the grounds he now claims to have had, and was an impulsive decision on his part, particularly as the informationConstable Mitchell claimed to rely on suggested Mr. Tobin would make supply trips every 3–4 days.

He was asked under cross-examination why the police did not carry out surveillance of Mr. Tobin in Clarenville and he stated: “Obviously, we didn’t have the resources to follow (Mr. Tobin) all over Clarenville at the time but, again, we have got to make a

decision to act on the information we have at some point in time. I made the decision at that time based on my observations and theinformation I had to act on it as best I could.” [65] Based on the foregoing I do not believe Constable Mitchell’s evidence that his source provided him with the additionalinformation within 10 days of the arrests.

I therefore do not accept that Constable Mitchell had received the additional information fromhis source by March 10, 2020, or that the additional information formed part of his grounds for the arrest of any of the three Applicantson that date. [66] The “amplified information” that Constable Coady and Constable Mitchell provided was that Mr. Tobin regularly travels to theClarenville area to obtain his supply, every 3–4 days, and that he leaves in the evening usually when he finishes work and returns back inthe Marystown area usually around 9:00 p.m.

In terms of the amplified information, I note the Source Qualification stated “theinformation provided by Constable Coady’s Source in relation to Graham Tobin was that he sells Percocet, he travels north on the BurinPeninsula Highway to obtain his supply of Percocet and that he uses his grey Toyota Corolla to go get his supply of Percocet.” [67] The amplified evidence expands upon the information disclosed in the Source Qualification that “he travels north on the BurinPeninsula Highway to obtain his supply of Percocet” and is largely providing greater detail of existing disclosure rather than brand newpreviously undisclosed information.

As noted, its’ existence was referred to by all three officers as forming part of the RCMPintelligence about Mr. Tobin that had been received by March 10, 2020, and was part of the reason the surveillance operation was set upto watch for Mr.

Tobin’s vehicle to return. [68] Constable Coady testified that the amplified information was withheld by him from the Coady source information when theSource Qualification was being prepared by Constable Mitchell in June, 2020, because the Coady source had informed him, at the timewhen the Source Qualification was being prepared, that if he disclosed the amplified information it may identify he/she/them.

ConstableCoady testified in a coherent and candid way, and I saw no basis to question Constable Coady’s recall of when the source informationwas received by him, what information he received, and why some was initially withheld. [69] This proceeding is case managed under the Criminal Proceedings Rules of the Supreme Court of Newfoundland and Labrador,SI/2018-43, and notice was given by the Applicants of the substantive Charter issues. The rules are designed to prevent ambush andpromote trial fairness.

The Applicants are no doubt correct that the amplified information was provided in court without the Crownhaving complied with the ongoing obligation to disclose all relevant information to the Applicants.

I note that all the briefs filedcontained legal arguments addressed to the information disclosed in the Source Qualification, including the Crown brief, and that duringfinal argument the court was advised that neither the additional information nor the amplified information was provided to the Crownbefore November 29, 2021. [70] Constable Coady’s explanation for this was that no request was made to him so he did not go back to the Coady source to seewhat else could be disclosed until the Friday before Monday, November 29, 2021.

He said that when he spoke with the Coady source itwas confirmed that the disclosure of the new information would not at this stage tend to identify the Coady source. The obviousinference is that he informed Constable Mitchell before Monday, November 29, 2021, he could provide the information.

The failure toprovide the information in a timely manner prior to Constable Mitchell’s testimony was a clear breach of the well-understood,constitutionally enshrined disclosure obligations referenced above. [71] Based on the foregoing, I do not find the evidence which amplified the previously disclosed information from the Coadysource was unreliable, and I have not been presented with any legal basis on which it should be rejected or disregarded outright.

Counselhad a full opportunity to cross-examine the officers on the receipt and use of the amplified information and they exercised that right.They did not request any additional remedy such as an adjournment. [72] I therefore accept the arresting officer had the amplified information by March 10, 2020, and that the amplified informationformed part of his grounds for the arrest on that date.

I do not accept the arresting officer had the additional information by March 10,2020, or that his grounds for arrest on that day included the additional information. [73] I now turn to the issues and the application of the legal principles to the facts. A. Did Constable Mitchell have reasonable grounds to make a warrantless arrest of the Applicants? The Applicable Law [74] In order to determine whether the Applicants were arbitrarily detained under s. 9 of the Charter it is necessary to determine ifthe warrantless arrests were lawful. Constable Mitchell acted under s. 495(1)(

a) of the Code when he arrested the Applicants on March10, 2020. Section 495(1) of the Code provides: 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence. [75] The first issue is whether Constable Mitchell had reasonable grounds to believe each of the Applicants had committed theoffence of possession of Percocet for the purpose of trafficking contrary to s. 5(2) of the CDSA at the time he arrested them at 9:15 p.m.on March 10, 2020. [76] The parties agree that the fundamental legal principles I must apply flow out of the decision of the Supreme Court of Canada inR. v. Storrey, (SCC), [1990] 1 SCR 241. In Storrey, the Supreme Court of Canada held that s. 495(1)(

a) requires thatthe arresting officer must have subjectively believed he had reasonable and probable grounds to base the arrest without warrant. Thecourt further held that, in order to safeguard against arbitrary arrest, those grounds for arrest must in addition be objectively establishedto exist. In Storrey, the court clarified that the “reasonable person” at the objective branch of the test for a warrantless arrest is a

reasonable person “standing in the shoes of the police officer.” This means the Crown must establish on the evidence that a reasonableperson, standing in the shoes of Constable Mitchell, would have believed that reasonable and probable grounds existed to make each ofthe three arrests at 9:15 p.m. on March 10, 2020. [77] The Crown bears the onus of proving that Constable Mitchell had reasonable and probable grounds for the arrests. Theapplicable standard of proof is one of reasonable probability and not proof beyond a reasonable doubt or a prima facie case (R. v.Baldwin, 2008 NLCA 62).

Any evidence discovered after arrest is not relevant to considering whether reasonable and probable groundsexisted for an arrest under s. 495(1)(

a) of the Code (R. v Garofoli, (SCC), [1990] 2 S.C.R. 1421). [78] In this case, the grounds for arrest relied upon by Constable Mitchell include “tips” which were provided to the arrestingofficer by the Mitchell source and provided to the arresting officer by Constable Coady. [79] The test to be applied in considering whether an informer’s tip provides reasonable grounds for a warrantless search was set outin R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140 by Wilson J., at para. 60: 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? 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 policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test.

Rather, Iconcur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [80] In R. v.

Whyte, 2011 ONCA 24, aff’d 2011 SCC 49, the test was summarized as follows at paragraph 12: The test to be applied for considering whether an informer’s tip provides reasonable grounds for an arrest or search is whether the tip iscompelling, whether it is credible and whether the tip was confirmed by independent investigation. [81] In Garofoli, the Supreme Court of Canada confirmed that hearsay statements from an informant can provide reasonable andprobable grounds to justify a search, but evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probablegrounds.

The Garofoli court concluded that the reliability of the tip must be assessed by recourse to the “totality of the circumstances”which entails looking at such factors as the degree of detail of the tip, the informer’s source of knowledge, and indicia of reliability suchas past performance or confirmation from other investigative sources. [82] In R. v. Day, 2014 NLCA 14, aff’d 2014 SCC 74, and R. v.

Parsley, 2016 NLCA 51, the Court of Appeal of Newfoundland andLabrador confirmed the applicability of these core legal principles and, in Parsley, reminded trial judges of the requirement in Garofolito have recourse to “the totality of the circumstances” in assessing the credibility and reliability of the source information. The s. 495(1)(

a) Analysis [83] This case deals with three arrests on March 10, 2020.

In considering whether reasonable and probable grounds existed tobelieve the Applicants had committed the indictable offence of possession for the purpose of trafficking oxycodone when they werearrested on March 20, 2020, I must assess the grounds for the arrests established in evidence from both a subjective and an objectivebasis. [84] I have found, as a matter of fact, that the information and observations relied upon by Constable Mitchell to form his reasonablegrounds to arrest the Applicants consisted of one five month old tip from the Coady source, one ten day old tip from his source that Mr.Tobin sells Percocet and he always has it with him in his vehicle, and the observations of the Tobin vehicle on Route 210 on March 10,2020. [85] The five month old tip was that Graham Tobin sells Percocet, he travels to the Clarenville area to obtain his supply, every 3–4days, he leaves in the evening usually when he finishes work and returns back in the Marystown area usually around 9:00 p.m., and thathe uses his grey Toyota Corolla to go get his supply of Percocet.

The 10 day old tip was that Graham Tobin sells Percocet, that he drivesa grey Toyota Corolla and that he always has Percocet on him when he is in his vehicle. The observations were the encounter with theTobin vehicle in Swift Current headed north at 4:50 p.m. and the sighting in Piper’s Hole, and in Jean De Baie at 9:15 p.m. [86] Constable Mitchell testified that, based on these tips and the observations he made of the Tobin vehicle, when he saw thevehicle approaching on Route 210, he felt he had reasonable and probable grounds to believe that Mr.

Tobin had gone to the Clarenvillearea to obtain his supply of Percocet, and that he was travelling back to the Marystown area to traffick in that supply of Percocet. Whenhe observed Mr. Lake and Ms. Piercey in the car, he felt that he had reasonable and probable grounds to believe that they had travelledwith Mr.

Tobin to Clarenville to obtain the supply of Percocet, that they had knowledge of why he was going to Clarenville, and that theyknew he had obtained a supply of Percocet and it was in the vehicle. [87] The Applicants do not dispute that Constable Mitchell believed he had those reasonable and probable grounds upon which tobase the arrests of the Applicants. They say those grounds were not objectively supported based on the totality of the circumstances. [88] The issue is whether objective grounds for the arrests existed.

The test is whether a reasonable person looking at theinformation and observations through the same lens as Constable Mitchell would come to the same conclusion he did. I will turn first tothe three part test outlined in Debot, and Whyte. [89] Was the information predicting the commission of the offence compelling? Counsel for the Applicants submit that the tipswere dated, and that the information contained in them was limited, general and vague. The Crown submitted that the informationprovided by the Coady source predicted Mr.

Tobin was going to pick up a supply of drugs, in accordance with a regular routine, and thatthe information was consistent with what the officer observed on the day of the arrest.

[ 90 ] The evidence which I have accepted means the grounds for the arrest as stated by the officer really turn on one tip which was five months old. The other tip, which was ten days old, was that Mr. Tobin sold Percocet in Marystown from his vehicle. This is in my view a conclusory statement and akin to rumor or gossip.

The officers admitted that information that a person sells drugs cannot form grounds for his arrest. [ 91 ] By virtue of the timing of when the tips were received, in particular the one tip from November 2019 on which the arresting officer relied, there was absolutely no information provided that Mr. Tobin was going anywhere to pick up a supply of drugs on March 10, 2020. This means that on the day of his arrest the officer had no information that Mr. Tobin was buying drugs, the amount of drugs Mr. Tobin was buying, the price of the drugs he was buying, who he was buying it from, or where he was going to buy it.

The information he had was about where Mr. Tobin obtains his Percocet supply, which was “off the Burin Peninsula” and “the Clarenville area.” Constable Mitchell admitted and I accept this information was neither notable nor compelling information and expresses a truism that an alleged drug dealer from the Burin Peninsula gets the drugs elsewhere. [ 92 ] In terms of the level of detail provided in the tips, the officer had no information about the connection of the sources to Mr. Tobin, whether they had personal knowledge, or their means of knowledge. The tips did not indicate how long Mr.

Tobin had allegedly has been selling Percocet, or the pricing or the quantity he sells. In my view the information in the tips was not compelling, it was limited, general and dated information. The information by itself was not predictive of any specific criminal activity, it was information which combined with the officer’s suspicion that he was observing activity consistent with Mr. Tobin’s reported routine, was a basis on which the RCMP could and did investigate the matter further. [ 93 ] Were the tips credible?

There was evidence provided by both source handlers to the effect that their sources were paid, they had criminal records and they were drug users. The evidence of Constable Coady that he has handled the source since 2018, and his source has provide information 31 times in the past some of which has proven reliable.

The Source Qualification stated the source had provided information that was consistent with proven information but he testified that he believes the source is reliable. [ 94 ] Constable Mitchell said he has handled his source since 2016 and that by March 10, 2020, his source had provided information on 5–10 occasions for which financial regards have been provided. In the circumstances I must be vigilant in my assessment of Constable Mitchell’s evidence regarding the reliability of his source.

I am unable to safely conclude that the reliability of his source information is proven. [ 95 ] The age, vagueness and generality of the tips and my concerns about the reliability of one of the informers and the contradictory indications of reliability of the information from the other satisfies me that, in assessing the reliability of the information in the totality of the circumstances, a high level of verification of the tip information was warranted before the risk of innocent coincidence was dispelled and an arrest could be lawfully made. [ 96 ] Was the tip information confirmed by independent investigation?

The Crown submitted the observations of the vehicle on March 10, 2020, constituted an appropriate level of corroboration of the Coady source information about the timing of the trips to and from the Marystown area to pick up Percocet. Constable Mitchell having admitted that his first observation of the Tobin vehicle was simply a chance encounter on Route 210, testified before me he concluded he had observed him “travelling off the peninsula” around the time the Coady source said he usually leaves to obtain his supply of Percocet in Clarenville area. He admitted however that he did not observe Mr.

Tobin travel anywhere, and he took no steps to confirm that the Tobin vehicle did go off the Burin Peninsula or to verify the vehicle went to Clarenville area. As he admitted, these were simply assumptions on his part, and the officer’s reasoning was not supported any objective indicia. [ 97 ] Constable Mitchell agreed it is not uncommon for residents of the Burin Peninsula to leave for entirely legitimate reasons, that it happens daily, and that the Burin Peninsula Highway is the only way for residents to go on or off the Burin Peninsula.

Clearly the observation of a vehicle headed north is capable of a number of possible innocent explanations. As counsel for Mr. Tobin also pointed out the timing for the vehicle to proceed from St. Lawrence to Swift Current did not even align with the tips prediction he travelled at the end of the work day. [ 98 ] As to Constable Mitchell’s belief that Colin Lake and Kaylynn Piercey had travelled with Mr.

Tobin to Clarenville to obtain the supply of Percocet, that they had knowledge of why he was going to Clarenville, and that they knew he had obtained a supply of Percocet and it was in the vehicle, he admitted did not see anyone else in the vehicle besides the operator, who he believed was Mr. Tobin. Sergeant Lush did not even see Graham Tobin in the vehicle. Constable Mitchell admitted he did not know when or where Mr. Tobin had picked up Mr. Lake or Ms. Piercey, or if they were in Clarenville that day, and that he did not know if the drugs were already in Mr.

Tobin’s vehicle when it was seen by Constable Mitchell in Swift Current. Again these were at best assumptions on his part, and in my opinion amounted to speculation. They were not supported by any objective indicia. [ 99 ] Overall, the observations by the officer of Mr. Tobin driving north at 4:50 p.m. and returning south at around 9:15 p.m. is neutral information, given that there was no evidence as to where he was coming from, where he went, if he left the Burin Peninsula, or if he went to Clarenville.

The most that can be said is that the observations are consistent with the possibility that he went to Clarenville and returned on March 10, 2020, but I agree with counsel for the Applicants that the observations of Mr. Tobin’s vehicle on March 10, 2020 by Constable Mitchell were indicative of various scenarios and a myriad of possible innocent explanations. [ 100 ] I will address a final factual issue, namely the objective of the surveillance using three unmarked police vehicles staged up Route 210.

The Applicants submit that the RCMP surveillance operation was set up to attempt to corroborate the tip information predicting that Mr. Tobin was returning to Marystown with a supply of Percocet to sell in the Marystown area. They submit the RCMP intended to follow Mr. Tobin to observe activity consistent with the tip that he would return to sell Percocet in the Marystown and they did not intend to arrest him upon his return if he arrived around the time the previous intelligence predicted.

I agree. [ 101 ] It is noteworthy that Constable Mitchell, Sergeant Lush and Constable Coady all testified that the police had decided to place Mr. Tobin’s vehicle under surveillance by using three unmarked police vehicles staged along the Burin Peninsula Highway. If the RCMP had determined to arrest Mr. Tobin they did not need to drive to Piper’s Hole, use the resources they did, or use unmarked vehicles. Based on

the evidence, and in particular the decision to use unmarked vehicles, and three of them, I find that the RCMP intended to follow Mr.Tobin’s vehicle when it returned to Marystown to try to corroborate the information that he intended to return to sell Percocet. I findthere was no intention to stop the vehicle and arrest Mr. Tobin simply because he returned to Marystown that evening. [102] This conclusion is consistent with the evidence about the treatment of the information and observations by the colleagues of thearresting officer on the date of arrest.

They had the same information as Constable Mitchell and yet Constable Mitchell said his role wasconducting a surveillance operation to corroborate the tips. This strongly indicates to me that RCMP officers using the same lens asConstable Mitchell concluded the information was suspicious enough to warrant an investigation and surveillance but not a search or anarrest. It does not matter that the arresting officer’s suspicions proved to be correct.

In my view, a reasonable person, standing in theshoes of Constable Mitchell, would not have believed that reasonable and probable grounds existed to make the arrests. [103] Based on my consideration of the totality of the circumstances of this case, including the limited, general information from theone dated tip and the general statement that Mr. Tobin sold Percocet and always has it with his in his vehicle, and based on the concerns Ihave with the informer’s reliability, and the absence of any real corroboration of the those tips, the grounds relied upon subjectively bythe officer were not reasonable.

The totality of the circumstances do not establish objectively reasonable grounds for ConstableMitchell’s subjective belief. [104] The Crown has not met the requisite burden to show that Constable Mitchell had reasonable and probable grounds to arrest Mr.Tobin, Mr. Lake or Ms. Piercey on March 10, 2020. As a result the arrest of all three accused was unlawful. B. Were the Applicants arbitrarily detained in violation of s. 9 of the Charter? [105] The decision of the Supreme Court of Canada in R. v.

Grant, 2009 SCC 32 clarified that there is a direct relationship between thearbitrariness of a detention and the legality of the state conduct. If the arrest of the accused was authorized by law then there was noviolation of their Charter rights under s. 9.

Conversely, if their detention was not authorized by law, it was an arbitrary detention andviolated s. 9 of the Charter (see: Grant, para. 169). [106] As I have concluded that the arrest of all three accused was unlawful it follows that the detention of the accused upon their arrestby Constable Mitchell was arbitrary and amounted to a breach of their rights under s. 9 of the Charter not to be arbitrarily detained. C. Were the privacy rights of Mr. Tobin violated under s. 8 of the Charter? [107]

Section 8 of the Canadian Charter of Rights and Freedoms provides: 8. Everyone has the right to be secure against unreasonable search or seizure. [108] The law I must apply to determine whether a search or seizure is a “reasonable” one is synthesized in the statement in R. v.Collins, (SCC), [1987] 1 S.C.R. 265, where the court held in order for a search to be reasonable and thereforeconstitutionally valid, it must be (

a) authorized by law; (

b) the law must itself be reasonable; and, (

c) the manner in which the search isconducted must be reasonable. [109] The police may search without warrant anyone they lawfully arrest incidental to the arrest. This power is derived from thecommon law as confirmed in Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158. The scope of this power is summarizedin R. v. Caslake, (SCC), [1998] 1 S.C.R. 51 at para. 25: In

summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrineof search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search mustbe truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated inCloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, whythey searched. They do not need reasonable and probable grounds.

However, they must have had some reason related to the arrest forconducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do notautomatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference.

However, thatinference may be rebutted by a proper explanation. [110] Having determined, however, that the arrest of the Applicants was without reasonable and probable grounds, and thereforeunlawful, it follows that any search incidental to their arrest was also unlawful and therefore prima facie unreasonable. This wouldinclude all aspects, including search of their persons at the scene, the search at the road side and the vehicle search at the Detachment. [111] The Supreme Court of Canada has settled the question of whether the owner and driver of a vehicle has a reasonable expectationof privacy in the vehicle.

A vehicle owner – or a driver with the owner’s permission – enjoys a reasonable expectation of privacy in hisor her vehicle. (R. v Belnavis, (SCC), [1997] 3 S.C.R. 341) [112] As a result I conclude the s. 8 Charter rights of the vehicle owner, Mr. Tobin, to be secure against unreasonable search or seizure,to have been breached. D. Should the evidence obtained be excluded pursuant to s. 24(2) of the Charter? [113] The fourth issue I must determine is whether any evidence obtained in violation of the Applicants’ Charter rights should beexcluded.

The parties agree that the legal principles I must apply to the question of whether the appropriate remedy is exclusion are setout in the decision of the Supreme Court of Canada in Grant.

In Grant, the Supreme Court of Canada adopted a revised approach to thequestion of when under s. 24(2) of the Charter evidence obtained in violation of a person’s Charter rights must be excluded. [114] In the circumstances of this case the unlawful arrests of the Applicants and the breaches of s. 9 of the Charter preceded andformed the legal basis on which the officers to exercised their authority to search the Applicants, and Mr. Tobin’s vehicle, without a

warrant. It was during the warrantless searches of the vehicle which I found breached Mr. Tobin’s rights under s. 8 of the Charter that the controlled substances were seized, and the certificates of analysis of the controlled substances were derived from samples of that evidence.

There is a direct temporal and causal link between the breaches of the Charter and all evidence seized from the Applicants and the Tobin vehicle, and all evidence derived from that evidence. [ 115 ] I proceed on the basis that the “evidence (that) was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter ” in this proceeding is all the exhibits seized by the police officers from the Applicants and from Mr.

Tobin’s vehicle on March 10, 2020, including the phones, the controlled substances, and the evidence derived from the exhibits, in particular the certificates of analysis of the Percocet pills and the white powder found to contain cocaine. [ 116 ] The remedy of exclusion under s. 24(2) is available if, having regard to all the circumstances, the trial judge concludes the admission of the evidence would diminish the public’s long-term confidence in the administration of justice.

The Grant analysis brings a contextual and more flexible approach to determining this question by balancing three factors: the seriousness of the state conduct in infringing the Charter ; the impact on the Charter protected interests of the Applicant; and, the interest of society in an adjudication on the merits.

Grant instructs the trial judge to weigh the indications from the three factors and determine whether, on balance, admitting the evidence obtained in violation of the Applicants’ rights under the Charter would bring the long-term administration of justice into disrepute. [ 117 ] The first line of inquiry involves an evaluation of the severity or deliberate nature of the conduct of the officer that led to the breach. The more severe or deliberate the conduct is, the greater the need of the court to disassociate itself from the conduct.

This preserves public confidence in and ensures police officers adhere to the rule of law. In terms of the conduct in this case I have found that when the arresting officer made the decision to arrest the Applicants he clearly had insufficient grounds to do so, and he acted impulsively and contrary to well-understood longstanding legal principles and jurisprudence which is an aggravating factor. There was no evidence that holding the Applicants in custody overnight was necessary.

I am satisfied the conduct of the arresting officer was deliberate and egregious and, along a continuum of culpability, is closer to the higher end of the spectrum of severity. The searches of the vehicle incident to arrest were unlawful, extensive and invasive. Sergeant Lush did not look in the vehicle, he removed components of the vehicle without a warrant. [ 118 ] The appearance of new information about the grounds for arrest of the Applicants in the testimony of the arresting officer, without any prior disclosure to the Applicants or the Crown, was an important and troubling feature of this case.

Given the potential significance of the new evidence and the absence of any explanation for its non-disclosure I am satisfied the officer’s conduct demonstrated further disregard for the Charter rights of the Applicants. Constable Mitchell did not carry out his obligations to provide full and timely disclosure of all relevant information to the Applicants and his failure to do so was not respectful of Charter values.

In my view the seriousness of the police conduct in this case clearly falls at the serious end of the spectrum. [ 119 ] The second line of enquiry under Grant requires the court to identify the Charter -protected interests engaged by the infringed right and evaluate the degree of impact on those interests from the violation. This requires the court to examine the degree to which the violation actually impacted the Applicants’ liberty interests protected by the Charter under s. 9 , and Mr. Tobin’s reasonable expectation of privacy protected by the Charter under

section 8 . Generally speaking, the more serious to impact on the interests of the Applicants, the greater the risk that admitting the evidence will result in bringing the administration of justice into disrepute. In this case the protected interests at issue are the Applicants’ liberty and dignity,

[…]