R v Tiwana, 2023 ABKB 636

Court of King’s Bench of Alberta Citation: R v Tiwana, 2023 ABKB 636 Date: 20231114 Docket: 210467700Q3 Registry: Calgary Between: His Majesty the King Crown - and - Harmandeep Singh Tiwana Accused Corrected judgment: A corrigendum was issued on November 14, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Ruling on ss. 8 and 11(

b) Charter Voir Dire of the Honourable Justice D.A. Labrenz _______________________________________________________ This is a written version of the oral decision that I delivered October 2, 2023. I have edited this written version for punctuation, spelling, grammar, and clarity. I have not supplemented my oral reasons.

Introduction [ 1 ] The Applicant, Harmandeep Singh Tiwana, following his arrest on April 21, 2021, was charged with possession for the purpose of trafficking in a controlled substance, to wit: methamphetamine contrary to s.5(2) of the Controlled Drugs and Substances Act . SC 1996, c 19 . Immediately preceding his arrest, Mr. Tiwana had been operating an Acura motor vehicle with Mr. Ashley Stanway, Mr. Tiwana’s former jointly charged co-accused, as a passenger. The Crown alleges that a search incidental to the arrest of both Mr. Tiwana and Mr. Stanway was conducted by police investigators in relation to the Acura.

As a result of the search police investigators seized several items, including: 2 kilograms of methamphetamine and 12.8 kilograms of fentanyl in the form of 18,000 pills. Mr. Tiwana also stands charged that he possessed fentanyl for the purpose of trafficking. [ 2 ] During searches conducted incidental to arrest the Crown alleges that the police located five mobile phones as follows: • A bag on the front passenger seat containing Mr. Stanway’s personal identification documents, along with two mobile phones; • A bag on the front driver’s seat containing Mr.

Tiwana’s personal identification and a mobile phone; and, • Two further phones, including one that the Crown alleges is Mr. Tiwana’s Apple iPhone, which was in the middle console near the gear shift. [ 3 ] On May 26, 2021, a constable of the Royal Canadian Mounted Police, Constable Sachdev, swore an information to obtain [“ITO”] for a warrant to search the five mobile phones for the purpose of discovering data relevant to the trafficking charges and relatedly for information that might demonstrate knowledge, possession or control of the phones and the data contained within those devices.

A search warrant was granted to search the phones by a judge of what was then the Provincial Court of Alberta on May 27, 2021. [ 4 ] Mr. Tiwana’s trial is set to commence on October 2, 2023, and is scheduled to be completed no later than October 12, 2023. Both the Crown and Mr. Tiwana agree for the purposes of calculating the Jordan delay, that the anticipated completion of this trial is 29 months and 14 days from the date the Information was first sworn against Mr. Tiwana. [ 5 ] In the present circumstances, Mr. Tiwana brings two discrete applications. Firstly, Mr.

Tiwana argues that his right to be tried in a reasonable time under s.11(

b) of the Canadian Charter of Rights and Freedoms [“the Charter ”] has been infringed and he seeks a remedy under s. 24(1) of the Charter in the form of a stay of proceedings . [ 6 ] Second, Mr. Tiwana alleges that the warrant to search his phone was improperly granted because the ITO facially does not disclose the necessary reasonable grounds for the search of his phone to have been granted or in a limited sense, as I will refer to later, that sub facially reasonable and probable grounds have not been demonstrated. Consequently, Mr.

Tiwana alleges that there has been a breach of his right to be free from unreasonable search and seizure under s.8 of the Charter and the search warrant must be quashed. The s.11(

b) Charter Right to be Tried Within a Reasonable Time [ 7 ] Before considering the present application, it is useful to briefly review the framework for assessing delay established in July of 2016 by the Supreme Court of Canada in R v Jordan, 2016 SCC 27 . [ 8 ] The Supreme Court of Canada in Jordan established an entirely new framework for assessing delay under s.11(

b) of the Charter . The new framework introduced by the Supreme Court established presumptive ceilings beyond which a trial is ipso facto considered to be unreasonably delayed. The presumptive ceiling is 18 months for matters going to trial in a provincial court and 30 months for those cases going to trial in a superior court. [ 9 ] The Supreme Court recognized, however, that not every delay is properly attributable to the Crown.

To calculate overall delay when determining whether the presumptive ceiling has been exceeded it is necessary to deduct delay attributable to the defence from the total delay to result in the calculation of net delay.

In particular, it is important to deduct any periods of delay that were either waived by defence or caused solely by the conduct of the defence. [ 10 ] In those circumstances where the net delay nonetheless exceeds the presumptive ceilings, the Crown may rebut the presumption if it can establish the presence of exceptional circumstances, which most often falls into two categories – discrete events and complex cases. To rebut the presumption, exceptional circumstances must be reasonably unforeseeable or unavoidable, and must also be incapable once they arise of reasonable remedy by the Crown.

If discrete events meet those criteria, they may be deducted from the overall delay for the purpose of determining whether the presumptive ceiling has been exceeded. Beyond that consideration, the delay may still be reasonable if the matter under consideration is particularly complex. As the Supreme Court said in Jordan at para 77 , the prosecution of an accused is particularly complex where the nature of the evidence and issues are such that the parties require an inordinate amount of trial or preparation time. [ 11 ] The present application requires me to consider the delay from charge to the completion of Mr.

Tiwana’s trial as Mr. Tiwana argues the total delay is unreasonable notwithstanding it is below the presumptive ceiling. The Supreme Court of Canada in Jordan at para 82 set out the test to be used when determining whether delay that falls under the presumptive ceiling is unreasonable. Such delay may be unreasonable if the defence demonstrates: 1) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and 2) that the case took markedly longer than it reasonably should have. Absent those two considerations, the Supreme Court said that a s.11(

b) application must fail. The majority in Jordan also said that a stay of proceedings for those matters that fall below the presumptive ceiling will only be granted in clear cases because the ceiling has factored into it the tolerance of reasonable institutional delay as well as the inherent needs and increased complexity of most cases.

[12] From paras 84 – 91 of Jordan, I distill the following additional principles:

a) The onus is on defence to demonstrate that it took meaningful, sustained steps to expedite the proceedings. Here, a judge mustconsider what the defence could have done, and what it actually did, to get the case to be heard as quickly as possible. This is a matter ofsubstance and not form;

b) It is insufficient to make token efforts such as simply stating on the record a desire for an early trial date;

c) Defence must demonstrate that it took meaningful and sustained steps to be tried quickly, including, that it attempted to set theearliest possible hearing dates, was cooperative and responsive to the Crown and the court, that it put the Crown on notice when delaybecame a problem, and defence must conduct all applications including the 11(

b) application reasonably and expeditiously;

d) A trial judge should not take the opportunity, with the benefit of hindsight, to question every decision made by the defence. Thedefence need only act reasonably and not perfectly;

e) Defence must also demonstrate that the case markedly exceeds the reasonable time requirements of the case;

f) Assessing the reasonable time requirements involves a consideration of a variety of factors, including, the complexity of the case,local considerations, and whether the Crown took steps to expedite the matter;

g) The reasonable time requirements will increase proportionally to a case’s complexity;

h) Where the Crown has acted reasonably by doing its part to ensure the matter proceed expeditiously – for example, by genuinelyresponding to defence efforts, seeking opportunities to streamline the issues and the evidence, and adapting to evolving circumstances, itis unlikely that the reasonable time requirements have been exceeded. Again, the standard is not one of perfection; and,

i) Determining whether the time a case has taken to come to trial is unreasonable is not one of precise calculation. Judges should notparse each day or month as was the practice under R v Morin, (SCC), [1992] 1 SCR 771 but, instead, should adopt abird’s-eye approach to arrive at what is a finding of fact within the expertise of the trial judge. The History of the Proceedings [13] The parties helpfully provided a comprehensive record of the proceedings, including the transcripts of the relevant courtproceedings and relevant correspondence. It would be trite to acknowledge that this evidence is necessary to properly assess Mr.Tiwana’s argument that his rights have been infringed under s.11(

b) of the Charter. For the purposes of this decision, I will review thetimeline in relatively comprehensive fashion. This does not mean that the events I do not repeat here have not been considered within thecontext of this decision. All transactional matters have been considered when considering the overall delay as suggested by the SupremeCourt when considering the overall delay with a bird’s-eye approach. [14] The following provides an overview of the history: 1. Mr. Tiwana was arrested on April 17, 2021, and was initially charged by an Information dated April 28, 2021.

The anticipatedcompletion of his trial is scheduled for October 12, 2023, or 29 days and 14 months after the Information was first sworn; 2. On May 11, 2021, Mr. Wolch, who represented Mr. Tiwana, was provided with a Crown bail package; 3. On May 12, 2021, a replacement Information was sworn which joined Mr. Stanway and Ms. Blackmore with Mr. Tiwana as co-accused. Court appearances on May 26 and 28, 2021, followed to facilitate bringing all the accused jointly before the Court to respond tothe joint Indictment as each accused originally had separate court dates; 4.

On May 17, 2021, a designation of counsel was filed on Mr. Tiwana’s behalf naming Mr. Wolch as his counsel of record; 5. On June 17, 2021, a letter was sent by the Crown to Mr. Wolch and counsel for Mr. Stanway (Mr. Jugnauth) along with Ms.Blackmore (Mr. Kothari) advising that a substantial tranche of disclosure will be forthcoming. The Crown also sought admissions. Mr.Wolch was provided with a substantial amount of disclosure on June 18, 2021; 6. At a court appearance on June 25, 2021, Mr. Wolch at Mr. Tiwana’s second appearance sought further time to review thedisclosure to July 26, 2021.

At this time, the Crown did not object to the period of one month to review the materials; however, theCrown expressed concern that the joint Information should not result in one accused’s conduct delaying another accused when it came tosetting trial or preliminary inquiry dates. The Crown indicated that it was concerned about s.11(

b) of the Charter. The Crown asked thata substantive step be taken on the next occasion in relation to what the Crown termed a “simple investigation”; 7. Further disclosure of body worn camera footage occurred, and at the next appearance on July 26, 2021 Mr. Wolch sought a furtheradjournment for disclosure purposes. Mr. Wolch was not clear if this was for the purpose of reviewing the disclosure that Mr. Tiwanahad already received, or if the adjournment was for the purpose of receiving further disclosure; 8. On August 23, 2021, Mr. Kothari on behalf of Ms. Blackmore sought an adjournment for resolution purposes.

Mr. Wolch sought afurther adjournment to await Ms. Blackmore’s resolution and because Mr. Wolch wished to have the mobile phone records from theseized phones before Mr. Tiwana made his election. The Crown responded by stating that it believed that sufficient disclosure had beenprovided for Mr. Tiwana to make his election; 9. On the same date, the Crown wrote all counsel advising that it would seek from the police a

summary of the mobile phone records

for the purpose of efficient disclosure review. The Crown also proposed that the defence agree that a Provincial Court trial date be set on the Crown’s undertaking to convert those trial dates into preliminary inquiry dates within a stipulated time period should the additional disclosure of the mobile phone records result in the Defence wishing to elect a different mode of trial; 10. Mr. Wolch advised that he did not wish to proceed with this option because a preliminary inquiry is inevitably shorter than a trial and would result in earlier dates being secured than the proposed Provincial Court trial dates; 11.

The Crown in addition to advising that the vetted mobile phone records were being sent out as of that date, September 29, 2021, implored Defence counsel to find some common ground in their clients’ positions to avoid further delay with the attendant implication of infringement of s.11(

b) Charter protected interests. The Crown further suggested that ss. 567 and 567.1 of the Criminal Code could result in a docket court judge declining to record Mr. Stanway’s request to be tried in Provincial Court and a Judge and Jury election imposed in its stead. The Crown advised that two days was required for preliminary inquiry. The Crown concluded that it looked forward to “establishing a path forward that gives due and appropriate effect to the need for a timely trial”; 12. On the next appearance date of October 1, 2021, Mr. Kothari appeared for his client, Ms.

Blackmore, advising that her matter was resolving. Mr. Kothari also appeared as agent for both counsel in relation to Mr. Tiwana and Mr. Stanway. An adjournment was sought by all parties to October 6 th as it was indicated that the Crown and Defence were making “headway” for the purpose of scheduling the next steps; 13. On October 6, 2021, Mr. Jugnauth on behalf of Mr. Stanway elected a trial in this Court on a judge alone basis. The docket court judge was also informed that Mr. Tiwana would have preferred a trial in Provincial Court. Ms. Blackmore’s matter by this point in time had been resolved.

Preliminary Inquiry dates were set for April 7-8, 2022; 14. The Crown provided Defence with notice that it proposed to proceed with what is commonly referred to as a paper preliminary hearing by calling only one witness, but presenting the rest of the Crown’s case in the case by tendering statements under s.540(7) of the Criminal Code . The Crown also agreed as a courtesy to make available additional witnesses for the purpose of cross examination as may be requested by the Defence. A pre-preliminary inquiry meeting followed and Mr. Fagan who was now counsel for Mr.

Stanway indicated that he would object to the s.540(7) procedure. Mr. Tiwana joined with Mr. Fagan’s position; 15. On April 7, 2022, the preliminary hearing was adjourned because Mr. Fagan was ill and new dates were set approximately 8 ½ months later for the preliminary hearing. The matter was adjourned to the first set of mutually available dates on which all parties were available: December 19-20, 2022. The Crown and Mr. Tiwana were available on earlier dates; 16. The Crown responded by sending correspondence imploring Mr.

Fagan to speak with the Crown about trying to find earlier preliminary inquiry dates to ensure that his s.11(

b) Charter -protected rights were, in fact, protected. Mr. Wolch, on behalf of Mr. Tiwana, sent correspondence asking the Crown to consider Mr. Tiwana’s severance because it was Mr. Tiwana’s preference that he be tried by a Provincial Court judge. Mr. Wolch did not specifically reference his client’s right to a timely trial under s.11(

b) of the Charter in this email correspondence. Mr. Wolch also said that his 2022 calendar dates had some availability but further indicated that such availability was dwindling; 17. The Crown responded by inviting Mr. Wolch to advise Crown if Mr. Tiwana decides to bring a severance application. The Crown offered that it would consider its position once it received the severance materials, and asked Mr. Wolch to provide some response as to why Mr.

Tiwana’s interest in a speedier trial should outweigh the s.591(3) Criminal Code “interests of justice” considerations, including: the Court’s interest in not duplicating proceedings involving the same evidence; and, the public interest in a fair trial regarding two accused charged with a serious crime that will involve issues of joint possession. Mr. Wolch did not respond to the Crown’s email, nor did he ever file a severance application on behalf of Mr. Tiwana; 18.

On May 2, 2022, the preliminary inquiry dates were marginally moved to the earlier dates of December 12 and 13 th as the December 19 and 20 th dates no longer worked with Mr. Fagan’s calendar; 19. On December 12, 2022, the Crown advanced its s.540(7) application which is opposed by both accused, although Mr. Tiwana merely joined with Mr. Fagan’s arguments. On December 21, 2022, the preliminary inquiry judge admitted the evidence and Mr. Fagan sought an adjournment to decide whether to call evidence and to argue committal. Mr. Tiwana did not join in that request; 20. On January 11, 2023 Mr.

Fagan made no argument as to committal and the Crown sought an early date for appearance in this Court. The Crown estimated that the trial would require seven days on the basis that there might be contested Charter applications and that the Crown would be calling 18 witnesses at trial; 21. On January 19, 2023, the Crown wrote Mr. Wolch and Mr. Fagan advising that it hoped to immediately set a trial date. The Crown offered dates in September and October that were available to the Court and the Crown. These dates would permit the trial to proceed before the presumptive Jordan ceiling.

The Crown also asked Defence counsel to advise if either accused were requesting a trial date that fell outside the presumptive ceiling and if the corresponding counsel would be seeking severance to ensure an expeditious trial; 22. At the Criminal Appearance Court appearance on January 20, 2023, Mr. Fagan sent an agent advising that Mr. Fagan was not retained for trial. Mr. Wolch said that his client was eager to proceed from the beginning and that he was prepared to agree to severance and to retain a new lawyer if it would permit an earlier trial date.

The Crown said that it would consider severance if necessary. Justice Devlin offered case management in an effort to assist the parties. The Crown wrote Justice Devlin on January 23 rd seeking such assistance. 23. On January 17, 2023, the Crown learned that Mr. Stanway had retained new counsel — Mr. Niv. 24. On January 30, Mr. Niv wrote the Court advising that because he is new to the file he was not in a position to set a trial within the Jordan ceiling;

25. On February 3, 2023, the Crown advised that it was in the process of filing replacement Indictments that would sever the accused once implemented; 26. On February 4, 2023, Justice Devlin wrote counsel and asked if Mr. Tiwana would be retaining new counsel who had availability prior to the Jordan ceiling as Mr. Wolch apparently did not. 27. On February 8, 2023, Mr. Wilson advised that he would be coming on the record to replace Mr. Wolch. Mr.

Wilson, similarly, did not have availability in his calendar to conduct a trial on the dates that had earlier been identified as available to the Court and the Crown witnesses. The Crown also canvassed admissions and raised the issue of a conflict with Mr. Wilson; 28. On February 10, 2023, the Crown wrote to Defence counsel and advised that the Crown and the Court were available for dates in June, September, and October of this year. Mr. Wilson was not available for any of those dates.

At the Criminal Appearance Court appearance date of February 10, 2023, the Crown shared concerns about obtaining Jordan compliant dates; 29. On February 14, 2023, Mr. Stanway’s counsel wrote advising that it was his view that nothing could take place by way of scheduling or severance until the multiple conflict issues raised by the Crown had been resolved; 30. Thereafter, the Crown wrote to Justice Devlin on February 16, 2023, seeking assistance; 31. On February 28, 2023, the Crown sent correspondence to Mr. Newton after being advised that he was being retained.

The Crown suggested that dates as early as May could be available if the evidence of a police witness was admitted, failing which the trial dates of October 3-12, 2023, were available for the Crown and the Court; 32. At the Criminal Appearance Court appearance on March 3, 2023, the Crown advised that it was electing to sever the accused by setting trial dates of October 2 to 12, 2023 for Mr. Tiwana on a replacement Indictment that charged him singularly.

The Crown advised the Court that it was preferring separate Indictments due to Jordan concerns, despite the inefficiency and unfairness of calling the same evidence twice and that it might rejoin the accused if this could be accomplished within the presumptive ceiling. Mr. Stanway declined to set a new trial date. The Crown advised that it was of the view that Mr. Tiwana was not responsible for the delay; 33. On March 10, 2023, the Crown requested the appointment of a Case Management Judge. Analysis [ 15 ] Mr. Newton aptly and capably argues that Mr.

Tiwana has met his onus to demonstrate that he took meaningful and sustained steps to expedite proceedings, and that the time required to complete this matter markedly exceeds what should be the reasonable time requirements. In support of his argument that the case took markedly longer than it should have, Mr. Newton emphasized that the Crown on more than one occasion acknowledged that this prosecution involved a relatively straight-forward prosecution without any special complexity. Mr.

Newton also argues that his client did what he reasonably could to expedite this matter and, in this regard, points to his client’s indication that he would have preferred a Provincial Court trial and that the Crown was not properly responsive to his requests for severance. [ 16 ] Mr. Cammack on behalf of the Crown in response argues that Mr. Tiwana did not take more than token steps to advance the matter and he, therefore, did not take meaningful and sustained steps to expedite the proceedings. For example, Mr. Cammack points out that counsel for Mr.

Tiwana did not respond to the Crown’s request to identify those factors which might support any contention that Mr. Tiwana’s Charter protected right to a timely trial favoured severance as opposed to the interests of justice in a joint trial. Mr. Cammack also disagreed with the suggestion that the trial as scheduled will by its completion mean that the proceeding has taken markedly longer than it should have taken under the circumstances. The Crown also argued that the period between July 16, 2021 and October 6, 2021, should be considered as defence delay on the basis that Mr.

Tiwana did not require the results of the analysis of the mobile phones before making his election and/or plea. In that regard, the Crown relied upon, amongst other decisions, R v JEK, 2016 ABCA 171 at para 66 , where the Alberta Court of Appeal said that delay in Crown disclosure may not require delay of the trial, much less the setting of a preliminary inquiry date, no matter how trivial or technical that disclosure might be. Has Mr. Tiwana satisfied his onus to demonstrate that he took meaningful and sustained steps to expedite these proceedings? [ 17 ] I conclude that Mr.

Tiwana has not met his onus to demonstrate that he took meaningful and sustained steps to expedite the proceedings based upon the record before me. Although mindful that I should not take the opportunity as aided by hindsight to question every decision made by defence, the record before me does not support the conclusion that Mr.

Tiwana was cooperative and responsive to the Crown and to the Court in the sense that he did what could reasonably be done to expedite the proceedings. [ 18 ] The record does demonstrate, on the other hand, that the Crown was concerned about the pace of the litigation at a very early stage and was attuned to the Crown’s shared responsibility to ensure that Mr. Tiwana’s right to be tried in a reasonable time under s.11(

b) of the Charter is respected. As early as the third docket appearance, the Crown expressed concern that a joint prosecution should not result in one accused delaying the setting of a preliminary inquiry or a trial date for another accused. The Crown also offered at an early stage to be flexible about election and to set a Provincial Court date, with the attendant undertaking to permit a re-election pending defence review of the mobile phone data.

It was also the Crown who consistently expressed concern over the pace of the litigation both in the numerous docket appearances and in the correspondence that passed between the parties. It was the Crown who attempted to shorten the preliminary inquiry proceedings by properly invoking s.540(7) of the Criminal Code , and it was both accused who opposed that application. The Crown was also responsive to Mr. Wolch’s suggestion of a severance application by asking Mr. Wolch to send a copy of that application and concurrently the Crown who offered to consider its position if Mr.

Wolch might identify why a timely trial outweighed other “interests of justice” considerations. An invitation, I would add, that Mr. Tiwana’s counsel did not respond to, nor did

Mr. Wolch ever file a severance application. It was also the Crown who made efforts to seek an earlier preliminary inquiry date whenthe initial preliminary inquiry date was adjourned due to Mr. Fagan’s illness. The Crown also pushed for an early date in this Court forfirst appearance following the preliminary inquiry. It was also the Crown that wrote to and engaged Justice Devlin in the casemanagement of this matter and the Crown who sought admissions to reduce the time required for trial. Finally, it was the Crown whoultimately severed Mr.

Tiwana when it was apparent that a joint trial under the presumptive ceiling was no longer possible due to thedelays caused by the former co-accused Mr. Stanway. [19] Mr. Tiwana through his legal counsel made only token efforts, in my view, to expedite his trial. Without attempting to bepejorative Mr. Tiwana’s approach might be described as one of words and not action. For example, when the Crown offered to set a trialdate in Provincial Court, Mr. Tiwana declined that offer on the basis that a preliminary inquiry would take less time and dates could beobtained more quickly.

In my view, the Crown’s overture should not have been simply and curtly rebuffed. Setting dates when disclosurebecame a problem due to retrieval of data from mobile phones that are most often password protected and inherently take time to analyzewas prudent in the circumstances. While Mr. Wolch’s opinion on the subject is not entirely incorrect, the benefit afforded by settingearlier dates for a shorter matter erodes over time. Mr. Tiwana did not make other suggestions, nor was the Provincial Court approachedwith a view of attempting to see if some dates could be held.

It is also possible, of course, should trial dates have been set and apreliminary inquiry been elected, to seek those earlier dates. Nothing is lost in the setting of dates. [20] While I appreciate that the Ontario Court of Appeal in R v Campbell, 2019 ONSC 4228 at para 23 held that an accusedcannot be described as failing to take sustained meaningful steps to expedite proceedings by requiring a hopeless severance application,the situation before me is quite different. I say that for two reasons. [21] First, the Crown offered to consider its position upon Mr.

Wolch providing some argument as to why his client’s interest intimely trial would outweigh the other administration of justice interests in a joint trial — Mr. Wolch declined to do so. This failurecannot be said as demonstrating a meaningful expression of a desire to expedite proceedings. [22] Second, on the facts before me I would not conclude that a severance application in the circumstances would have beenhopeless.

While it is trite law that the general rule is that persons jointly charged with the commission of an offence, particularly wherethat offence involves a common enterprise or where, as here, the allegation is of joint possession of controlled drugs, should be triedtogether — this rule is not absolute.

See. e.g., R v Crawford, (SCC), [1995] 1 SCR 858. [23] While there are strong policy reasons to jointly try people for crimes arising out of the same factual circumstances,particularly when that offence involves a joint enterprise, a judge does have a discretion to sever where the interests of justice requireseverance. Justice Watt in R v Durant, 2019 ONCA 74 , 2019 ONCA74 at para 73, helpfully listed a number of factors thatvarious courts have found to favour granting severance.

Not surprisingly, prejudice to the accused’s right to be tried within a reasonabletime is one of those factors that might favour severance. [24] Before moving on, I should point out that the facts considered by the Ontario Court of Appeal as reported in the trial decisionof Campbell at 2019 ONSC 4228 involved a 12-year-old witness who witnessed a violent home invasion and robbery. Given the youngage of the witness, and the troubling violent circumstances, it is understandable that severance was unlikely because it would require thatyoung witness to testify on multiple occasions.

Quite obviously, the same cannot be said in the circumstances before me which involvetypical dial-a-dope drug trafficking allegations and police witnesses. [25] Importantly, while I have identified the actual steps that the Crown took to expedite proceedings, the simple observationshould be made that it was not Mr. Tiwana who took those steps, which would demonstrate sustained meaningful steps to expediteproceedings. Mr.

Tiwana did seek severance, only rather lately, but he did not, as I have said, respond to the Crown’s request for furtherdiscussion. [26] As Justice Poelman stated in R v Carter, 2018 ABQB 657, quoting from Jordan at para 25, “it is not enough for the defenceto make token efforts such as simply put on the record that it wanted an earlier trial date”. Here, as in Carter, Mr. Tiwana made nomeaningful attempt to secure an earlier date. In fact, when it became clear that Mr. Wolch was not available for the trial dates that wereavailable to the Court and the Crown, Mr. Tiwana responded by changing counsel to Mr.

Wilson who was also unavailable for thosesame dates. [27] I would also note that where the presumptive ceilings have not been exceeded a stay will be rare and granted only in clearcases. This is not one of those clear cases.

The time for trial does not markedly exceed what is reasonable [28] While my reasons to this point are sufficient to dispose of this application, and it is not necessary to address the secondquestion of whether the trial took markedly longer than the reasonable time requirements and the question of whether the Crown tookreasonable steps to expedite the proceedings, I do not find that the accused has met his onus to demonstrate that his s.11(

b) Charter rightshave been violated under this distinct consideration. [29] Firstly, as the Supreme Court of Canada stated in Jordan, it is unlikely that the reasonable time requirements have beenexceeded when the Crown has acted in a manner so as to prioritize the expeditiousness of the proceeding. [30] I will not repeat my earlier findings, but the Crown has done and did what it could to expedite proceedings, including theseeking of admissions.

It has been the Crown that has had its eye on the Jordan clock throughout. [31] The Crown was not wrong to conclude there were numerous good policy reasons to prefer a joint proceeding on theseparticular facts. The administration of justice concerns greatly favour a joint trial. In this regard, the words of Fairburn J (as she then was)in R v Ny and Phan, 2016 ONSC 8031 at paras 42-46 are apposite in the present circumstances:

[42] The jurisprudence is replete with sound policy reasons for conducting joint trials. It is a well-recognized principle of law that theinterests of justice are most often best served by having people who are alleged to have committed crimes together, tried together andtheir guilt or innocence determined together. As Laskin J.A. held in R. v. Whylie (2006), (ON CA), 207 C.C.C. (3d)97 (Ont. C.A.), at para. 24: “A single trial for two or more accuseds generally conserves judicial resources, avoids inconsistent verdicts,and avoids witnesses having to testify more than once.” See also: R. v.

L.G., 2007 ONCA 654, at paras. 62-62. [43] The presumption of a joint trial, particularly where individuals are said to have worked in concert, will only be displaced where theinterests of justice require separation, as per s. 591(3) of the Criminal Code. … As Doherty J.A. held in Savoury, at para. 22: “Theinterests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution.” [44] The new s. 11(

b) framework accounts for joint trials and absorbs the policy rationale embedded in the jurisprudence pertaining tothem, specifically as it relates to the interests of justice being served. As noted by the majority in Jordan “[p]roceeding jointly againstmultiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case [emphasis added]”:Jordan, at para. 77. See also: Manasseri, at para. 311. [45] The important policy rationales for keeping joint trials intact must not be lost in the increasing shadow of an approaching ceiling.

Asthe British Columbia Court of Appeal recently held, severance is not a “panacea” when delay arises in a multiple accused trial: R. v.Singh, 2016 BCCA 427, at para. 83. [46] The implications of proceeding too quickly to sever accused, simply because the ceiling is approaching, are obvious and striking. …The implications of conducting virtually the same trial more than once would be profound and potentially add to delay in the system: R.v. Koruz, 1992 ABCA 144, at para. 83, aff’d R. v. Schiewe, [1992] S.C.C.A. No. 299. [32] Here, the Crown alleges that Mr. Tiwana and Mr.

Stanway worked in concert and alleges that both were in possession of asubstantial amount of drugs in a motor vehicle. Where a joint trial has strong policy considerations favouring a joint proceeding, this canbe considered when looking at the case with the bird’s-eye view in relation to the delay. Joint proceedings simply take longer. As JusticeFairburn pointed out, the interests of justice are not served by simply deciding to try all individuals separately.

Severing too quickly andconducting the trial more than once would only add more delay to the system. [33] I acknowledge that the Supreme Court of Canada has expressly left it to another day to address issues arising from delay incases of multiple co-accused: R v Yusuf, 2021 SCC 2 at para 4. [34] I also acknowledge that the pre-Jordan decision in R v Vassell, 2016 SCC 26 makes it clear that in some cases the Crowncannot ignore the delay caused by a co-accused and must remain vigilant to ensure that its decision to prosecute jointly does notcompromise an accused’s right to a timely trial under s.11(

b) of the Charter. That, however, is exactly what the Crown did here. When itbecame apparent that it was taking too long to get Mr. Tiwana to trial because of the actions of Mr. Stanway, the Crown did exactly whatit was supposed to do, and the Crown severed Mr. Tiwana when the delay was becoming too long. [35] While the Supreme Court in Jordan recognized that proceeding jointly might increase the complexity of a case, I do not findthat this is the case in the present proceeding. I would also not have acceded to the Crown’s argument that Mr.

Tiwana should haveelected a mode of trial before he received the download from the mobile phones. I say that because in the context of a circumstantial caseinvolving issues of possession, the contents of those phones cannot be said to be trivial or technical issues of disclosure and I could fairlyunderstand how the contents of the phones might impact upon the critical question of Mr. Tiwana’s election. [36] Having said that, Mr.

Fagan’s illness was not predictable nor preventable as a discrete event and the Crown did what it couldto ameliorate the effect of that adjournment by proactively moving forward, albeit minimally, the preliminary inquiry dates. While itmay be unclear the extent to which a discrete event such as a sudden illness of one counsel should be count against a co-accused, it isappropriate, in my view, that I consider such delay when taking the bird’s-eye view of the time that it has taken Mr. Tiwana’s matter toget to trial. [37] In the result, while Mr.

Tiwana’s matter has taken to long to get to trial when I consider the nature of the charge and itsrelative lack of complexity, I do not find that Mr. Tiwana’s trial will be completed at a time that is markedly longer than is reasonableunder the circumstances. [38] Mr. Tiwana has not demonstrated any breach of his rights under s.11(

b) of the Charter and his application in that regard isdismissed. The Garofoli Application [39] As a separate application, Mr. Tiwana argues that the warrant to search his phone was improperly granted because facially theITO does not disclose the necessary reasonable grounds for the search of his phone. Consequently, Mr. Tiwana alleges there has been abreach of his right to be free from unreasonable search and seizure under s.8 of the Charter and the search warrant must be quashed. [40] This application proceeded to my mind in a somewhat unusual manner. At the outset, Mr.

Tiwana made an applicationseeking leave to cross examine the affiant concerning the ITO filed in support of the search warrant, but then abandoned that application. [41] Having abandoned that application, the Crown and Mr. Tiwana agreed that the Acura motor vehicle that had been driven byMr. Tiwana immediately preceding his arrest was not Mr. Tiwana’s motor vehicle. The conclusions drawn by the affiant as stated to thejustice who authorized the search warrant in this regard are factually incorrect.

However, there was no suggestion, because there was noevidence on this point, that the affiant knew or ought to have known that the Acura was not Mr. Tiwana’s motor vehicle: World Bank vWallace, 2016 SCC 15 at para 121. As the Supreme Court has said, an affiant need not conduct his own investigation, and I have noreason to believe that the affiant knew that the Acura did not belong to Mr. Tiwana or that any inference the affiant drew from the police

observations of Mr. Tiwana operating that Acura were unreasonable. In my view, notwithstanding ownership of the Acura might tend tostrengthen the available inferences that Mr. Tiwana knew that the Acura was conveying controlled drugs, nothing turns on this fact interms of whether the search warrant could be issued. [42] Mr.

Tiwana, with Crown consent, otherwise tendered the ITO sworn by the same affiant in support of a warrant to search tworesidential addresses and two motor vehicles in an attempt to demonstrate that the affiant was not full, fair and frank, in relation to thewarrant before me that permitted the search of five mobile phones seized from the Acura. In this regard, while the ITO sworn to searchthe five mobile phones was not as fulsome as it could have been, I do not conclude that it was unfair or that it tried to trick theauthorizing judge.

In particular, I do not find that the present ITO failed to disclose details that would have undermined its issuance. Tothe contrary, the omitted details would only have strengthened the reasonable grounds required to issue this search warrant. This was not,in short, an ITO that tried to trick its readers. The comments of the Supreme Court of Canada in R v Araujo, 2000 SCC 65 at paras 46-47are on point: Looking at matters practically in order to learn from this case for the future, what kind of affidavit should the police submit in order toseek permission to use wiretapping?

The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure ofmaterial facts: cf. Dalglish v. Jarvie (1850), 2 Mac. & G. 231, 42 E.R. 89; R. v. Kensington Income Tax Commissioners, [1917] 1 K.B.486 (C.A.); Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at p. 528; United States ofAmerica v. Friedland, [1996] O.J. No. 4399 (QL) (Gen. Div.), at paras. 26-29, per Sharpe J.

So long as the affidavit meets the requisitelegal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as anautomotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she canmake an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should benot only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number ofmonths and even of years.

A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers. At best, the use ofboiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinkingthat the affidavit means something that it does not. Although the use of boiler-plate language will not automatically prevent a judge fromissuing an authorization (there is, after all, no formal legal requirement to avoid it), I cannot stress enough that judges should deplore it.

There is nothing wrong – and much right – with an affidavit that sets out the facts truthfully, fully, and plainly. Counsel and policeofficers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleadingthe authorizing judge, either by the language used or strategic omissions. [43] I do not find for the purposes of this review that the affiant either mislead the authorizing judge or used strategic omissions togain such a purpose.

In my view there was no need in the present circumstances for a lengthy affidavit that detailed the entirety of theinvestigation or one that referred to the confidential informants which formed the background to the present investigation. That isbecause the reasonable grounds for search or seizure of the mobile phones was fully founded in the circumstances surrounding the arrestof Mr. Tiwana and Mr. Stanway. [44] This application proceeded in part as a sub​-facial review based upon the evidence found in the ITO that Mr.

Tiwana arguedshould result in potential excision of portions of the ITO primarily because of lack of completeness. On a sub-facial challenge counselargues that the material placed before the reviewing judge should result in excision of parts of an ITO that are shown to be misleading orinaccurate. The validity of the warrant must then be determined based upon what remains in the ITO.

Relatedly, counsel may argue thatthe authorizing judge was deliberatively or recklessly misled such that the entire ITO is an unreliable basis upon which to issue a searchwarrant. [45] Beyond these considerations, this application proceeded as a facial review because I was not provided with evidence, either inthe form of an agreed statement of facts, or otherwise as viva voce testimony, that might otherwise provide information as to what theaffiant knew or ought to have known at the time of the swearing of the ITO as opposed to what might have been discovered in the fulnessof the investigation but was nonetheless unknown to the affiant.

On a facial challenge, counsel argues that the ITO on its face does notprovide a basis upon which the issuing justice could issue the warrant. [46] Beyond these legal considerations, as a matter of first principles, I am reminded that the purpose of s.8 of the Charter is toprotect people and not places. This means that s.8 protects the property and privacy rights of individuals from unjustified stateinterference. A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which it is carried out isreasonable: R v Collins, (SCC), [1987] 1 SCR 265 at 278. Here, Mr.

Tiwana takes issue only with the prerequisite ofreasonable grounds to search as advanced in the ITO in support of the present warrant. [47] It is important to recognize that a search and seizure conducted under the authority of a judicial authorization is presumed tobe valid: R v Pires; R v Lising, 2005 SCC 66 at para 30. When a reviewing judge is asked to review the adequacy of the evidence swornin support of a search warrant, the scope of the review is narrow and does not constitute a de novo review of the ex parte application.

Thereviewing judge does not substitute his or her view for that of the authorizing judge.

The question is whether there is reliable evidencethat might be reasonably believed on the basis of which the authorization could have been issued; not whether, in the opinion of thereviewing justice, the application should have been granted by the authorizing judge: R v Garofoli, (SCC), [1990] 2SCR 1421 at 1452; R v Araujo, 2000 SCC 65 at para 51. [48] The reasonable grounds standard involves more than mere suspicion and is a standard of reasonable probability or credibility-based probability but it does not have to amount to the civil standard of proof on a balance of probabilities.

The Alberta Court of Appealin R v Ha, 2018 ABCA 233 at para 70 summarized reasonable grounds to believe as requiring a factually based likelihood. [49]

Section 487.1 of the Criminal Code sets out the test for issuance of a search warrant under s.487(1)(

b) of the Criminal Codeand indicates that the authorizing judge must be satisfied of the three following requirements: 1. Reasonable grounds to believe that an offence has been committed;

2. Reasonable grounds to believe that the things searched for and seized exist and are at the location to be searched for; and, 3. Reasonable grounds to believe that the things to be searched for and seized will afford evidence. [ 50 ] I find that the authorizing judge had sufficient information before him in the ITO as written such that a search warrant could have been issued based upon the inferences available to the authorizing judge.

Whether information contained in the ITO meets a reasonable grounds standard is to be approached on a practical, non-technical basis, and justices are entitled to draw common sense inferences from its contents: R v Whitaker, 2008 BCCA 174 at para 42 . [ 51 ] As I have said, the authorizing judge had before him the following information from which he could have concluded that the mobile phones were likely to afford evidence in relation to the trafficking offences under consideration.

In particular, it could be readily inferred that the mobile phones were likely to afford evidence regarding the trafficking of controlled drugs and substances and the knowledge and possession of the same. The authorizing judge had the following sworn evidence before him: i. An investigation was commenced in April of 2021 and surveillance was conducted on Mr. Stanway who resides at 2611 36 Street and has care and control of Unit #5-1810 17 th Street SW. Mr. Stanway operated a Jeep and a Mercedes and engaged in counter surveillance and activity consistent with drug trafficking; ii. Mr.

Tiwana was observed in surveillance making short duration meets at predetermined locations including Unit #5- 1810 17 th St SW while using the Acura for drug trafficking; iii. On April 27, 2021, Mr. Stanway and Mr. Tiwana were arrested in a traffic stop in the parking lot of Unit #5-1810 17 th Street SW while in the Acura TL. After the traffic stop was conducted two search warrants were executed simultaneously at 2611 35 th SW and Unit #5-1810 17 th St SW, and also on the Mercedes Benz, the Jeep, and the Acura TL; iv. During the search of those locations, the police located: a. Cocaine 4,070.7 grams; b.

Methamphetamine 22367.8 grams; c. Fentanyl (Powder) 1522.5 grams; d. Gamma Hydroxybutyric Acid (GHB) 30 gallons; and, e. Canadian Currency $386,220. v. The affiant set out his rather extensive experience in drug trafficking and counter-surveillance techniques and stated that in a convert capacity he had observed over 100 transactions that are consistent with the behaviour of a drug trafficker providing drugs to a customer; vi. The affiant read surveillance reports generated by police officers who conducted surveillance in relation to this investigation and their notes.

The affiant deposed that based upon his previous knowledge, training and experience, he was confident that he could accurately recognize the behaviour of drug traffickers as well as other members of the drug subculture; vii. The current investigation involved the drug trafficking activities of Mr. Stanway. Additional individuals, including Mr. Tiwana, were identified as being involved in trafficking of controlled substances; viii.

The following was seized from the Acura TL at the time of arrest: a. 12.62 kilograms (approximately 17,828 pills) of Fentanyl valued at $356,560; b. 1885.9 grams of Methamphetamine valued at $113,154; c. Two Samsung Telephones d. Three iPhones ix. The affiant stated in his experience, electronic devices such as the mobile phones seized are used extensively in the course of drug trafficking. The devices are used to store communications, images, and data such as names, telephone numbers, and addresses of those involved in drug trafficking.

Cell phones facilitate the trade while providing a level of anonymity and separation to the dealer. This activity includes the location, time, quantity and price in relation to the drug transactions. Individuals involved in the drug trade also utilize cell phones to store customer contacts, score sheets and currency related to drug trafficking. [ 52 ] In my view, the ITO provided ample evidence from which the authorizing judge could conclude that the cell phones will afford evidence related to the drug trafficking charges. [ 53 ] Mr.

Tiwana acknowledges that a search warrant could have been issued in relation to the two mobile phones found in a bag that were associated with Mr. Stanway’s Identification documents because of the greater detail relating to Mr. Stanway’s involvement and the searches pursuant to

section 11 of the Controlled Drugs and Substances Act for the 17 th Avenue Apartment and the 36 th Street House which produced large quantities of controlled substances and the details of those searches set out in the ITO. Mr. Tiwana, however, argues that the three remaining phones as located by the police in the Acura TL should not have been searched as they were near to Mr. Tiwana and accessible by him.

[54] I disagree. Based upon the simple circumstances of the traffic stop and the circumstances of the search, including the largeamounts of controlled drugs and substances, it was open to the authorizing judge to infer based upon the evidence of the affiant regardingthe use of mobile phones in trafficking that the phones found proximate and in the same motor vehicle as the drugs would provideevidence concerning drug trafficking and the issues surrounding the possession of those drugs. [55] Similarly, Mr.

Tiwana argues that once a search of the phones revealed that a phone belonged to him, the police should havestopped the search. Once again, I do not agree. Mr. Tiwana was the operator of a motor vehicle that had Mr. Stanway as a passenger andcontained a large quantity of controlled drugs and substances. It was open to the authorizing judge to conclude that all of the phones would afford evidence of trafficking. As for Mr. Tiwana, he had prior association with the 17th Ave apartment, including at the time ofarrest (in the parking lot) with Mr.

Stanway, and had been observed by police in surveillance making “meets” that the police believedwere related to drug trafficking. [56] I also agree with the Crown that there is no requirement when obtaining a search warrant to have a suspect in mind or toestablish some nexus between the property to be searched and an individual as a putative suspect. The requirement that the thingsearched for “will afford” evidence with respect to the commission of an offence is one of broad

interpretation and must not be taken tomean that the thing to be searched for and seized will constitute independent evidence of the crime. The Supreme Court of Canadaexplained this distinction in CanadianOxy Chemicals Ltd v Canada (Attorney General), [1991] 1 SCR 743 at para 15: On a plain reading, the phrase “evidence with respect to the commission of an offence” is a broad statement, encompassing all materialswhich might shed light on the circumstances of an event which appears to constitute an offence.

The natural and ordinary meaning ofthis phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potentialculpability falls within the scope of the warrant. [57] The finding that an item to be searched for is rationally connected to the incident under investigation does not mean that theevidence sought must incriminate a party or otherwise require that the evidence establishes the offence.

The police do not need suspectsor the reasonable grounds to arrest anyone in furtherance of the crime under investigation as a precondition to obtaining a search warrant.In other words, it is not necessary that the things sought constitutes evidence of the crime, but it must be something, alone or incombination with other things, which could be reasonably believed to be evidence of the commission of a crime: R v CanadaBroadcasting Corp, (1992) (ON SC), 77 CCC (3d) 341 at p 351 (Ont. Gen. Div). [58] Here the mobile phones that were seized might serve to exonerate Mr.

Tiwana as much as they might serve to incriminatehim. The phones were searchable based upon the evidence of the police officer as to the extensive use of mobile phones for the purposeof trafficking and the proximity of those phones to the drugs that were seized. That was all that was required. The complaint Mr. Tiwanahas about the full history of the investigation not having been disclosed in the ITO, including the informants, is of no consequence in thepresent circumstances because the undisclosed information does not undermine the grounds for the search warrant.

To the contrary, theundisclosed information would only have served to strengthen the grounds for the warrant. [59] I agree with the Crown that the complaints made by Mr. Tiwana regarding the lack of specificity in the warrant would nothave made a difference because if the warrant had been corrected to provide a fuller description of the investigation, it would have stillbeen issued. For example, Mr.

Tiwana complains that referring to the “meets” he made that were said to be consistent with trafficking isfundamentally different than specifically describing the instances or occasions of observance where the police say they saw Mr. Tiwanaact in a manner consistent with trafficking. In my view, however, this information would not have any practical import because thenumber of observations is not critical to the inferences drawn.

Having reviewed the previous ITO, the plural phraseology remainsappropriate. [60] Similarly, the failure to refer to the Confidential Informants was unnecessary because the evidence provided by each was nota necessary basis for the issuance of the present search warrant. [61] In conclusion, I do not accept that the search warrant was improperly granted or that the affiant was not full, fair, and frank.The affiant might be fairly criticized for being too concise, but that is not a basis for quashing the search warrant. There is no establishedbreach of Mr.

Tiwana’s rights under s.8 of the Charter. [62] Both applications are dismissed. Heard on the 18th day of September, 2023 and the 20th day of September, 2023. Delivered orally on the 2nd day of October, 2023 Dated at the City of Calgary, Alberta this 9th day of November, 2023. D.A. Labrenz J.C.K.B.A.

Appearances: R. Jeremy Newton Bulwark Law for the Accused Levi Cammack Colin McKay Public Prosecution Service of Canada for the Crown _______________________________________________________ Corrigendum of the Ruling on ss. 8 and 11(

b) Charter Voir Dire of The Honourable Justice D.A. Labrenz _______________________________________________________ This corrigendum includes numerous typographical and grammatical errors