R. v. St. Germaine Date:, 2017 BCPC 34

Citation: R. v. St. Germaine Date: 20170123 2017 BCPC 34 File No: 210696-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. TYSON KYLE ST. GERMAINE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: S. Elliott Counsel for the Defendant: W. Jessop Place of Hearing: Surrey , B.C. Dates of Hearing: November 28, 29, 30, December 19, 2016 Date of Judgment: January 23, 2017

INTRODUCTION [1] Mr. St. Germaine is before the court on Information 210696-3-C. The Crown is proceeding by way of indictment on three charges. Each of the charges has to do with being in possession of a loaded glock model 27 40 caliber handgun on May 27, 2015. [2] The matter proceeded to trial and a lengthy voir dire was held as to whether Mr. St. Germaine was lawfully arrested. While extremely unusual, I am attaching the Crown’s written submissions to these Reasons. While lengthy, I believe Ms.

Susanne Elliot of the Crown’s office captured the appropriate legal principles to consider in her 29-page written submission. I believe attaching the written submissions, rather than reading them into the record, will take less court time but will make them available as a legal reference regarding the considerations a court must examine in assessing whether a lawful arrest took place. [3] With respect to both Ms. Elliott and Mr. Jessop, I am very grateful for their significant efforts and carefully designed arguments in this case. [4] I agree with the Crown’s submission on what the law is.

However, respectfully, I come to a different conclusion than the Crown with respect to its application to the facts in this case. I find Mr. St. Germaine’s Charter rights have been violated. It is my conclusion that he was arrested on a mere suspicion and unlawfully searched. REASONS Who led the investigation? [5] Cst. Pulchny was leading this investigation. He had received information from an informant that a Mr. Bhinder was the leader of what in court has been referred to as the “Somali Crew.” He began to surveille Mr. Bhinder at his residence. I know nothing of a Somali crew.

No expert evidence was led that would help me understand particular business models of drug enterprises. I did, however, have the benefit of Cst. Pulchny’s opinions. [6] What experience did Cst. Pulchny have? He has been a RCMP officer for 9 years and with the Surrey Drug unit since 2010. While he was not tendered an expert, in my view, he really possesses the characteristics of a drug expert. He has worked on over a hundred investigations in different capacities. It was unclear to me why, but it appears he had some knowledge of Mr. Bhinder as a result of something that took place in 2010 or 2011.

How was the investigation being done - information available to be assessed? [7] Surveillance started on May 7, 2015 and continued until May 27, 2015. The officer obtained strata council’s permission to use the monitor room of an apartment building. The investigational theory was that Mr. Bhinder had a residence on the 16 th floor of that building. Essentially it was the intention of the investigating officer to watch the comings and goings from the 16 th floor, where Mr. Bhinder’s residence was thought to be. It was hoped that data obtained would help the officer have a better idea of Mr.

Bhinder’s lifestyle, such as who was associating with him. [8] The officer was able to ascertain information from different events. First, he had access to a log that showed what electronic fobs were accessing different places. For example, if a fob that was associated with a particular unit of the building was used to access the elevator, then the officer would have this information. Second, the building had some cameras and the officer was able to obtain footage taken by these cameras.

For example, the officer could see who got on and off the elevator. [9] I note that he could see who got on and off the elevator, but had no ability to know where those people went once they were off the elevator. The camera would show if they turned left or right, but that was it. [10] A third investigative ability of the officer was that he had some limited ability to see who was in the unit believed to be Mr. Bhinder’s residence. As I understand it, the police had a camera located outside the building. From a distance they were able to see certain activities.

I note that at no time did the police observe any drugs in the residence. That is, no one was seen using, possessing or distributing anything that appeared to be a drug. Limited knowledge of the investigator [11] He had no idea how many fobs belonged to any unit. He had no information as to whether anyone else other than Mr. Bhinder lived in the residence they were watching. He did not know whether any person seen going on the 16 th floor lived on that floor or on another floor of that building.

It was only an investigational theory that led the officer to believe a stash house existed on the 15 th or 19 th floor. What did the officer see Mr. Bhinder doing? [12] As a result of what was observed, the officer testified that he believed Mr. Bhinder was a drug dealer. He also testified that he believed that Mr. St. Germaine was involved in the trafficking operation. [13] I think it is important to note that when Cst. Pulchny started the investigation, he premised his investigational theory on two points. First, that Mr. Bhinder was a drug dealer. Second, that Mr.

Bhinder resided on the 16 th floor of this building in a particular unit. To put it another way, everything that Mr. Bhinder was seen doing was the act of a drug dealer in the eyes of the officer before the investigation even began. [14] In direct examination, he testified that he saw people coming and going from the residence. One person used a fob and went to

the 16 th floor. That male had been seen with Mr. Bhinder. Putting two and two together, the officer believed the male was a ‘trusted individual.’ Mr. Bhinder had a rental vehicle which, to the officer, was consistent with being a drug trafficker. Somebody dropped off a box; this was consistent with what the officer referred to as a re-load. A bag was delivered, and that was consistent with a re-load. Five individuals were all gathered together for about an hour, and this was somehow part of the trafficking operation.

People stayed for sometimes a few minutes or up to a couple of hours and these visits, in his eyes, were short visits consistent with a drug operation. [15] In short, the officer saw some people going up to the 16 th floor and off the elevator; and sometimes, then getting on the elevator on the 15 th floor. This going to and from the 16 th and 15 th floor was consistent with his investigational theory that there was a separate stash house located on the 15 th floor. As well, some of the people going to and from the 16 th floor also had some connection to the 19 th floor.

That floor was also then seen as a possible site for a stash house. [16] In cross-examination, the officer admitted that the group of five males were simply watching TV. No drugs or drug paraphernalia were seen. The bag being dropped off was probably just groceries from a store he knew was close by. A bag with a box in it, which at first was consistent with a re-load, was equally consistent with a take-out bag. [17] In

summary, one way or the other, it was the officer’s view that what he observed Mr. Bhinder doing was all consistent with being the head of a drug trafficking operation. [18] Mr. Jessop, on behalf of the accused, Mr. St. Germaine, argues that even if all the observations made throughout the investigation are consistent with Mr. Bhinder being involved in drug trafficking, the observations themselves go strictly to the grounds the police have with respect to Mr. Bhinder, not Mr. St. Germaine. To put it another way, just because the police potentially have grounds to arrest Mr.

Bhinder, it does not necessarily follow that they have the grounds to arrest Mr. St. Germaine. [19] I should be clear about one point. I know nothing about the officer’s informant. I know nothing about the quality of the information received by the officer from the informant. For the sake of argument, I accept the quality of the information is not suspect. It is important that I am clear on this point. If the officer did not have ‘inside’ information from an informant, and he simply had the observations from the three-week surveillance, it is my view that he would not have the grounds to arrest Mr. Bhinder.

Watching a person come to and from their home, and others coming to visit, is not grounds to arrest someone. He saw no drugs. He saw nothing that would give anyone cause for concern. Certainly, even the most experienced officer would not have any clue that Mr. Bhinder was involved in a drug operation - but for the inside information that came from the informant. Nevertheless, I also wish to be clear that I am not assessing the grounds to arrest Mr. Bhinder. It is the grounds that might exist to support an arrest for Mr. St.

Germaine that I must assess. [20] Again, in an effort to be overly clear, but for the information from the informant, it is my view there was absolutely no evidence that establishes that the residence being watched was used for any illicit purpose. Observations of Mr. St. Germaine [21] He was observed six times over the course of the three-week surveillance. On two of the six times it was uncertain how long he was in the building. [22] Merely being present at the residence is not enough to have Mr. St. Germaine arrested. It is not as if Mr. St. Germaine was arrested inside a house that was a grow-op.

In fact, really, he was only seen inside the residence on one occasion and on that occasion he was watching TV. I am asked to infer that other times when he got out of the elevator on the 16 th floor he was going to Mr. Bhinder’s residence. For the sake of argument, I will assume this point as well. In its best light, Mr. St. Germaine knows Mr. Bhinder, or someone that lives in that residence. [23] However, there is nothing in the evidence that shows that any illicit activity was taking place in the residence. Again, this is the inference or premise made by the officer, based on information from an informant.

Once more, I do not even know if the informant said Mr. Bhinder was simply living at this unit, or if he was operating his business out of the unit. What is known about Mr. St. Germaine? [24] There are 6 main factors that we know about Mr. St. Germaine: 1. On May 7, 2015, he was buzzed up to the 15 th floor. We do not know who buzzed him in but he was seen in Mr. Bhinder’s unit later that day. Essentially, he is seen associating with Mr. Bhinder and a person later identified as Mr. Ahmed. 2. On May 12, 2015, he was on the 16 th floor for about half an hour.

Once more, this floor is the same floor that the police believe Mr. Bhinder lives on. It was 7:30 at night and Mr. St. Germaine was dressed in construction work clothes. 3. On May 13, 2015, Mr. St. Germaine is fobbed up to the 16 th floor by an unknown male. He arrives with nothing, and leaves about an hour later with a plastic bag. This was the plastic bag thought to be consistent with take-out left overs. Again, he is on the 16 th floor. He was seen riding up the elevator with Mr. Bhinder. 4. On May 14, 2015, he is seen coming to and leaving from the 16 th floor. He stayed there for approximately four minutes.

He did not leave with anything in his hands. With respect to this stay, I agree with the officer that it was a short stay. However, I disagree that other visits by Mr. St. Germaine were short. For example, I do not consider a 30-minute or one hour stay to be short. Later that day Mr. St. Germaine was described as going down the elevator into the parking lot with a bulge in his pants, and coming back onto the elevator counting some money. The inference that I was asked to make was that he was going down to the parking lot with the intention to do a drug deal. The bulge in his pants was drugs.

The money he was counting was the proceeds of the sale. With the

greatest respect to the near expert-like qualifications that I think Cst. Pulchny has, it is an unreasonable inferential leap to come to thisconclusion. There are no descriptors made available to Cst. Pulchny as to the bulge or the money. We have no idea if Mr. St. Germainewas counting loonies or hundred dollar bills. This is not the case where Mr. St. Germaine is seen interacting with somebody in a mannerconsistent with some sort of drug deal. There is no ‘somebody.’ There is no interaction. I am asked to infer that he met with someoneand did a drug deal.

I am asked to infer this because the officer believed it to be true. Respectfully, this is an example of the officerseeing what he wanted to see. 5. On May 20, 2015 a vehicle with a plate number matching Mr. St. Germaine was seen leaving the parkade. 6. On May 27, 2015, Mr. St. Germaine is seen getting off the elevator on the 16th floor and getting on the elevator about 40 minutes later on the 15th floor. It is at this point that the officer testified that he believed he had the grounds to arrest him for possession of cocaine or heroin.

It seemed as though accessing both the 16th and 15th floors were subjectively important to the officer. [25] The Crown contends that Mr. St. Germaine was seen on three occasions going up to the 16th floor with an unknown male. Theofficer believed the unknown male was a doorman to Mr. Bhinder. That is he would take people in and out of the residence, thus part ofthe drug operation. It is the submission of the Crown that since Mr. St. Germaine was seen with this unknown male, who is associatedwith Mr. Bhinder, he too must be associated with Mr. Bhinder. I am now asked to consider Mr. St.

Germaine’s association to anassociate of Mr. Bhinder, who I am supposed to assume is the doorman in a drug operation run by Mr. Bhinder. [26] To summarize, Mr. St. Germaine was a stranger to the officer. He was never observed in unit 1503, the suspected stash house. On two of the six times he was in the building, the officer does not know how long he was there or what he was doing there. He was never fobbed up to the 15th floor. He was never observed on the 19th floor - another floor where it was suspected a stash house waskept.

He was never observed to be involved in anything that looked like a hand-to-hand transaction. He was never seen to be inpossession of drugs. He never appeared to be intoxicated by drugs and by all accounts did not look like a user. [27] The Crown, at paragraph 25, of their written submission correctly states the law. In its simplest terms, I should consider thetotality of the circumstances that the officer had available to him. I should not question whether each aspect of the grounds examined inisolation establishes reasonable grounds.

To put it another way, the circumstances should be considered cumulatively, not on apiecemeal basis.

Summary of Crown Argument [28] The Crown submits that Mr. St. Germaine is associated to Mr. Bhinder. He was seen in Mr. Bhinder’s unit on one occasionand around some other people that have been seen with Mr. Bhinder. Mr. Bhinder is a drug trafficker. The police make observationsthat appear to the officer to be consistent with Mr. Bhinder being involved in the drug trade. Lastly, and perhaps most importantly, atpages 27 to 29 of the Crown’s written submissions, the Crown contends that Mr. St. Germaine had a substantial connection to the illicitactivity.

Summary of Defence Argument [29] Mr. Jessop admits that the officer believed he had subjective grounds. However, Mr. Jessop argues that the officer’s groundsdid not meet objective standards. He submits that the officer’s grounds are based on nothing more than a hunch or suspicion or hisinvestigational theory. He argues that the officer saw what he saw through such a jaded lens that even ordinary benign behavior wasseen to be consistent with drug trafficking. This is a similar argument found in R. v. Rover, 2016 ONSC 4795 , 2016 O.J.

No.3979, at paragraph 26, where the police simply interpreted all of the applicant’s conduct as support for their suspicions. I do not thinkthe Rover case assists me in assessing Mr. St. Germaine’s situation. Examples of a Distorted Lens - Argument of Defence [30] The officer said that all the visits of people to the residence were short and thus consistent with drug trafficking. There were anumber of visitors. Most stayed for periods as long as two hours. A few were there a few minutes. The officer called all these visitsshort.

This position makes no sense and it is not reasonable. [31] If you come with a bag, then it must have drugs. But when pushed, it became apparent that the bag just as easily could haveleftovers or groceries. As well, if the bags had drugs, then according to the investigational theory, they would not be brought to theresidence. The residence was to be kept separate to the stash house. This position makes no sense. [32] The officer testified that the amount of foot traffic was very high. But on one day there were three people that came to theresidence. On another, five came - but they were there to watch TV.

On another day only 2 or 3 people seemed to be present, and one ofthose individuals was the girlfriend of Mr. Bhinder. [33] To say the amount of foot traffic was high in the 20-day time period that was surveilled is not reasonable. I did not consider the amount of people coming and going to and from the 16th floor unreasonable. Further, neither the officer nor I have the benefit ofknowing how many units are on that floor. I find it troubling that the officer led the court to believe that part of that foot traffic that should be taken into account was when a few males came up to the 16th floor and departed.

Some of those males left through thevisitors’ parking lot and some accessed other areas of the underground parking. It was only on cross-examination that the officer clarified that it appeared those males came up to the 16th floor, accessed a unit that had nothing to do with Mr. Bhinder and went to theparking lot to fix a flat tire. [34] Essentially, I believe it is Mr. Jessop’s argument that the officer had an overly negative view of his observations - a faultexamined more closely in the Lahtinen case.

I am aware that it is dangerous to start considering what factors were not present, and thatthe more appropriate approach is to consider what was present.

CONCLUSION [35] Yes, the police saw a rental vehicle. It was not Mr. St. Germaine’s, nor was he in any way directly associated to it. A personwho the police believe is a drug trafficker looked left before turning right while getting off the elevator. I suppose this could have been aheat check. But I think it is unreasonable to jump to this conclusion without further information. Either way this was not Mr. St.Germaine. A person associated to Mr. Bhinder used a fob to take a few people up and down from a floor of an apartment building. Itwas not Mr. St.

Germaine that played the role of a ‘doorman.’ [36] In my view, it is a leap to infer that Mr. Bhinder was a drug trafficker. This leap must be taken from the base premise that wasgiven to the officer by the informant. Only once one reaches this conclusion; does the environment of Mr. Bhinder take the shape of adrug operation. A grocery bag is then no longer a grocery bag, but somehow it is a bag being delivered or taken away for the purposesof the drug operation. A rental vehicle is no longer innocently rented as a mode of transport, but it is rented to throw the police off their drug trafficking trail.

Taking the stairs to and from the 16th floor to the 15th floor is no longer just people visiting each other, but it is toaccess a stash house. [37] From the point of concluding there is an illicit operation, I believe the BC Court of Appeal in R. v. Chaif-Gust, [2011] B.C.J.No 2455 asks me to consider what evidence is there linking Mr. St. Germaine to that operation. R. v. Pope, 2015 BCSC 2391 confirmsbasic legal principles that when we examine the evidence or facts that the officer relies on, we have to look at those facts from thevantage point of a prudent, reasonable and cautious police officer.

In addition, the assessment must not be done from an overly jaded,jaundiced, or negative view. It cannot be based on a hunch, even if that hunch is based upon intuition gained by experience. [38] I believe the Honourable Judge Woods clearly sets out the ultimate point as to why the courts must carefully examine thegrounds of arrest in R. v. Boyd, [2011] B.C.J. No 1175 at paragraph 63 where he writes: An arrest is the ultimate form of state interference with the liberty of an individual. Thus, Parliament has always closely restricted thecircumstances in which the power of arrest can be exercised.

The constitutional right we all have not to be detained arbitrarily, mandatesthat police officers who have the authority to exercise that power both observe its statutory limitations and use thoughtful caution whendeciding to invoke it. [39] I do not believe the officer intended to do anything wrong. From his viewpoint, Mr. St. Germaine was associated with Mr.Bhinder. He knew this because he had seen Mr. St. Germaine in the company of Mr. Bhinder. He was on an elevator with him and hadseen him in his residence on one occasion. He had seen Mr. St.

Germaine in the presence of another person who was also believed to bean associate of Mr. Bhinder. According to him, his training led him to believe that Mr. St. Germaine was somehow involved in Mr.Bhinder’s drug operation. [40] It is true that there need not be direct evidence of Mr. St. Germaine actually being in possession of drugs or trafficking in drugs. But in my view, there must be more than mere association. There must be, at least, some reliable circumstantial evidence that ties Mr.St. Germaine to the illicit activity or drug operation.

The evidence would have to satisfy me that the officer had reasonable and probablegrounds to believe that Mr. St. Germaine was in possession of cocaine or heroin. Without such an important protection, as R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 states at paragraph 14, “even the most democratic society could all too easily fall prey tothe abuses and excesses of a police state.” [41] In any event, I do not wish to overly simplify the issues in this case. Merely being associated to someone that you believe is adrug trafficker is not enough to have them arrested.

I find that the officer believed subjectively that he had the grounds to arrest Mr. St.Germaine. However, I am not satisfied that his reasons for this belief were objectively discernible. The ones that were, such as goingdown an elevator and back up counting money, were far too vague and lacking in adequate descriptors to be considered as part of areasonable foundation to arrest someone. [42] Mr. St. Germaine was not lawfully arrested and thus the search incidental to arrest that located the gun on his person was alsounlawful. I do not come to this conclusion lightly. I do not like the idea of Mr. St.

Germaine walking around in public with a loaded 40caliber handgun tucked into his pants, and it is not lost on me that his possession of the weapon was not only illegal but also in breach ofthree court orders forbidding his possession of any firearms. [43] Once more, I wish to thank both counsel for their compelling and thoughtful submissions. The Honourable Judge A.M. Wolf Provincial Court of British Columbia IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Case No. 210696-3C (Surrey Registry) REGINA v. TYSON KYLE ST. GERMAINE

CROWN SUBMISSIONS ON VOIR DIRE (ARREST) I. Introduction 1. The Accused was arrested on 27 May 2015. When searched incidental to arrest, police located a loaded handgun concealedbeneath the waistband of his pants. There following elements are admitted: the handgun, a Glock Model 27 .40 Caliber handgun, is aprohibited weapon; the handgun was loaded with ammunition (a bullet in the chamber and five rounds in the magazine); and the Accuseddid not have an authorization, license, or registration certificate for the handgun.

Therefore, there is no issue that on 27 May 2015: theAccused possessed the prohibited firearm contrary to s.95(1) and s.92(1), and did so in a vehicle contrary to s.94(1). 2. The Accused challenges the lawfulness of the arrest, and seeks to exclude the handgun on claims that his

section 8 and section9 Charter rights were violated. The issue in this voir dire is therefore whether the arrest was lawful. The Crown says that ConstablePulchny, who directed the Accused’s arrest, had the requisite reasonable and probable grounds. II. Applicable Legal Principles The Reasonable Grounds Standard 3. The powers of a peace officer to arrest without warrant are set out in s. 495 of the Criminal Code: 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 tocommit an indictable offence, (

b) a person whom he finds committing a criminal offence, or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in PartXXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found

(2) A peace officer shall not arrest a person without warrant for (

a) an indictable offence mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or (

c) an offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to bedealt with according to law. 4. Storrey is the seminal

interpretation of the statutory power to arrest without warrant for an indictable offence. It requires asubjective belief that is objectively reasonable. Cory J., for the Court, says: Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committedthe offence of aggravated assault before they could arrest him. Without such an important protection, even the most democratic societycould all too easily fall prey to the abuses and excesses of a police state.

In order to safeguard the liberty of citizens, the Criminal Coderequires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable andprobable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, itis even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they basethe arrest. . . . There is an additional safeguard against arbitrary arrest.

It is not sufficient for the police officer to personally believe that he or she hasreasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probablegrounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed thatreasonable and probable grounds existed to make the arrest. See R. v. Brown (1987), (NS CA), 33 C.C.C. (3d) 54(N.S.C.A.), at p. 66; Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228. In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on

which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonableperson placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for thearrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they arenot required to establish a prima facie case for conviction before making the arrest. R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at 249-251, 53 C.C.C. (3d) 316 at 323-324 5. Storrey was decided under the predecessor

section to the present one. The Criminal Code, R.S.C. 1970, c.C-34, s.450, used thephrase “reasonable and probable grounds”. The 1985 consolidation which post-dated the arrest in Storrey changed this wording to“reasonable grounds”. This continues to be the present wording of s.495. The change in the text makes no change in the meaning as thetwo expressions mean the same thing. The B.C. Court of Appeal consistently applies the Storrey principle that the arresting officer musthave a subjective belief on grounds which are objectively reasonable. R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 Baron v.

Canada, (SCC), [1993] 1 S.C.R. 416, 78 C.C.C. (3d) 510 R. v. Webster 2008 BCCA 458, 238 C.C.C. (3d) 270, 262 B.C.A.C. 168 at para. 47 R. v. Acosta. 2014 BCCA 218, 356 B.C.A.C. 168 at para. 12 R. v. Moore 2012 BCCA 400 at para. 9 R. v. Messina 2013 BCCA 499, 346 B.C.A.C. 179 at para. 20 R. v. Crocker 2009 BCCA 388, 247 C.C.C. (3d) 193, 275 B.C.A.C. 190 at para. 77; lv ref [2010] 1 S.C.R. viii 6.

The objective test of reasonable grounds requires that it is reasonable for one in the position of the arresting officer, applying apractical common-sense approach to the totality of credible information available at the time of the arrest, to believe that it is probablethat the arrestee has committed or is about to commit an indictable offence. More than simple suspicion but less than a prima facie caseof guilt is required. Intention to take further investigative steps including a search of the arrestee is irrelevant.

Chiasson J.A.conveniently summarizes the principles of warrantless arrest by a peace officer: 1. An arresting officer’s subjective belief in reasonable grounds to arrest must be justified objectively; 2. There must be more than mere suspicion, proof on a balance of probabilities is not required; reasonable probability or reasonablebelief (credibility based probability) is sufficient; 3. The assessment is to be made looking at the circumstances through the eyes of a reasonable person with the same experience,training, knowledge and skills as the arresting officer; 4.

To the extent an officer’s belief is based on informer information, the credibility of the information will be considered in light ofthe reliability of the informant based on any past experience, the quality of the information and any corroborating or confirmatoryevidence; weaknesses in one area may be compensated by strengths in other areas. R. v. Spence 2011 BCCA 280, 307 B.C.A.C. 198 at para. 33 The standard is less than prima facie guilt 7. It is not necessary that the reasonable belief be of grounds sufficient to establish guilt beyond a reasonable doubt.

Indeed it iswell established that what the grounds must demonstrate is something less than a prima facie case of guilt. Cory J. concludes hissummary in Storrey by saying “Specifically they [the police] are not required to establish a prima facie case for conviction beforemaking the arrest”. R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at 251, 53 C.C.C. (3d) 316 at 324 8. The Supreme Court of Canada has interpreted the “reasonable grounds to believe” standard, in the context of the ImmigrationAct, in Mugesera v.

Canada (Minister of Citizenship and Immigration), saying at para.114: The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, butless than the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minister ofEmployment and Immigration), (FCA), [1994] 1 F.C. 433 (C.A.), at p. 445; Chiau v. Canada (Minister ofCitizenship and Immigration, (FCA), [2001] 2 F.C. 297 (C.A.), at para.60. (Emphasis added) Mugesera v.

Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, 197 C.C.C. (3d) 233 as cited inpart in R. v. Jir, 2010 BCCA 497. 9. Thus, it is clear that an officer making a warrantless arrest need not have objectively reasonable grounds establishing a primafacie case of guilt. The standard is credibly based “Reasonable Probability” 10. Mere suspicion cannot justify an arrest. There must be credibly based probability of guilt. The Supreme Court has described thestandard as one of “reasonable probability” or “reasonable belief”. In Debot, Wilson J. stated:

The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or“prima facie case”. The phrase “reasonable belief” also approximates the requisite standard. R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at 166, 52 C.C.C. (3d) 193 at 213 R. v. Jir 2010 BCCA 497, 264 C.C.C. (3d) 64, 295 B.C.A.C. 231 at para. 27 11.

In dealing with the anonymous tip, Sopinka J. referred to the test set out in Debot and then said: The information given by the anonymous informant was compelling in that it identified the location of the cultivation operation andlocated the appellant’s house in a fairly specific geographic region, albeit without specifying an exact street address.

It is impossible todetermine whether the source was credible except by reference to the fact that the information was subsequently corroborated by a policereconnaissance which resulted in identification of the exact address of the residence described by the informant…I conclude that theanonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable groundsasserted in the information to obtain the warrant. Therefore, I would not excise that piece of evidence from the warrant. R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 12.

Although each case must be determined on its own circumstances, it is instructive to examine some of the facts that Courts haveheld constituted a “reasonable probability”: a. R. v. Tam, 1994 BCCA: What is necessary at the investigative stage must not be confused with what must be established tosupport a conviction. Requiring direct evidence of knowledge before a person can be arrested for a possession related offence wouldlead to absurd results. Tam provides a good example. A package containing multiple boxes of heroin was discovered by customsofficers.

The police were called, and installed a transmitting device in one of the boxes. The package was then delivered to a residence. The police heard the package being opened, and waited a few minutes before entering. Tam was arrested on a stairway. Another person,who was carrying wrapping paper from the package, was also arrested. Later, Tam’s fingerprint was found on a piece of cellophanefrom one of the boxes. To require direct evidence of knowledge would be to accept that the police did not have grounds to arrest eitherTam, or the other person. b. R. v. Labelle, 2016 ONCA 110 c. R. v. Abdul-Hamid, 2015 ONCA 179 d.

R. v. Rover, 2016 ONSC 4975. 13. The reasonable grounds standard does not require consideration or exclusion of possible innocent inferences or explanations. R. v. MacCannell 2014 BCCA 254 at paras. 44-46 Arrest of Found-Ins 14. Whether the police have grounds to arrest a particular person found at or near a particular premise will depend on the nature ofthe activity believed to be occurring at the premise and the suspect’s degree of association with that premise. The police will notnecessarily have grounds to arrest every person present at the site of a marihuana production or trafficking operation. 15.

If the premises are being used only for drug production or distribution purposes, it is reasonable to infer that anyone present isinvolved in the illicit activity. R. v. Chaif-Gust 2011 BCCA 528, 280 C.C.C. (3d) 548, 314 B.C.A.C. 195 at paras. 55-57, 61-62 16. However, if the premises are being used for legitimate as well as illicit purposes, then mere presence does not give rise to aninference of involvement, and other grounds connecting the suspect to the illicit activity are needed to found reasonable grounds. R. v. Whitaker 2008 BCCA 174, 254 B.C.A.C. 234 at paras. 53-61; lv ref [2008] 3 S.C.R. x R. v.

Chaif-Gust 2011 BCCA 528, 280 C.C.C. (3d) 548, 314 B.C.A.C. 195 at paras. 58-60 Circumstances at Time of Arrest 17. It is obvious that the reasonableness of the arrest falls to be determined on the basis of the circumstances as they appeared at thetime the arrest was made. Just as the discovery of evidence in a post-arrest search cannot form part of the justification for conducting thesearch, so too the fact that no evidence was found in the search, no charge was laid or no conviction was entered, is irrelevant to the issueof whether reasonable grounds to arrest existed at the time of the arrest. R. v.

Grotheim 2001 SKCA 116, 161 C.C.C. (3d) 49 at para. 42; lv ref [2002] 2 S.C.R. vi Further Investigation after Arrest is Contemplated and Permitted 18. That the officers intend to take further investigative steps following the arrest is immaterial to the existence or non-existence ofreasonable grounds to arrest. 19. If there are reasonable grounds to arrest then the police intention to continue the investigation following the arrest does not

invalidate it or imply that it was made for an improper purpose. In Storrey itself the police had reasonable grounds to arrest the suspectsbut their purpose in doing so was to conduct an identification parade. In rejecting the argument that the professed intention of the policeto continue the investigation after the arrest invalidated it, Cory J. said: [I]t has long been the rule in Canada and the United Kingdom that the police can continue their investigation subsequent to anarrest. The essential role of the police is to investigate crimes.

That role and function can and should continue after they have made alawful arrest. The continued investigation will benefit society as a whole and not infrequently the arrested person. It is in the interest ofthe innocent arrested person that the investigation continue so that he or she may be cleared of the charges as quickly as possible. This well established principle was reiterated by Lord Denning, M.R., in Dallison v.

Caffery, [1964] 3 W.L.R. 385 (C.A.), at p.398: When a constable has taken into custody a person reasonably suspected of felony, he can do what is reasonable to investigate the matter,and to see whether the suspicions are supported or not by further evidence. He can, for instance, take the person suspected to his ownhouse to see whether any of the stolen property is there; else it may be removed and valuable evidence list. He can take the personsuspected to the place where he says he was working, for there he may find persons to confirm or refute his alibi.

The constable can puthim up on an identification parade to see if he is picked out by the witnesses. So long as such measures are taken reasonably, they are animportant adjunct to the administration of justice. By which I mean, of course, justice not only to the man himself but also thecommunity at large. The measures must, however, be reasonable. The same principle was confirmed by The House of Lords in Holgate-Mohammed v. Duke [1984] A.C. 437, at p. 445. An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation afterthe arrest. R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241 at 254, 53 C.C.C. (3d) 316 at 326-327 The Reasonable Person in the Position of the Officer 20. In Storrey, Cory J., discussing the objective aspect of the grounds, said, “[A] reasonable person placed in the position of theofficer must be able to conclude that there were indeed reasonable and probable grounds for the arrest”. R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at 251, 53 C.C.C. (3d) 316 at 324 21. In Juan the police arrested the accused Juan as a passenger in a car that showed up at the scene of a pre-arranged eight-ouncecocaine deal.

The police had no previous information about Juan, and the only basis for arresting him was his presence in the car thatarrived at the scene to complete the deal. The trial judge held that there were not sufficient objective grounds to support Juan’s arrest,and excluded the evidence seized from the search of his person.

The Court of Appeal held that the trial judge erred in his assessment ofthe objective component of the grounds, in that the trial judge “overlooked the experience of the officers and, most significantly, theirknowledge as to the customs of the illegal drug trade and their testimony with respect to the transaction in question”. R. v. Juan 2007 BCCA 351, 222 C.C.C. (3d) 289, 243 B.C.A.C. 259 at para. 28 22. The reasonableness of the arresting officer’s belief must be considered in light of the officer’s knowledge or experience withregard to the nature of the criminal activity under investigation.

Bennett J.A. summarizes the process of the determination of objectivereasonableness: [19] Being “placed” in the position of the officer” does not just mean making the same observations as the officer, as to many laypeople such observations would be meaningless. Included in the assessment of whether the grounds for arrest are reasonable is theofficer’s experience, training and knowledge: R. v. Juan (J.P.) (2007), 2007 BCCA 351 , 243 B.C.A.C. 259; 222 C.C.C. (3d)289; 2007 BCCA 351, at para. 27; R. v. To (J.) (1998), 109 B.C.A.C. 242 at para. 11, and R. v.

Tran, supra [(2007), 2007 BCCA 491, 247 B.C.A.C. 109; 2007 BCCA 491, at para. 17]. [24] The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observationsof the officer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledgeand skills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to thesame conclusion as the police officer. R. v. Luong 2010 BCCA 158, 286 B.C.A.C. 53 at paras. 19, 24 R. v.

Juan 2007 BCCA 351, 222 C.C.C. (3d) 289, 243 B.C.A.C. 259 at paras. 17-29 A Practical Common-Sense Approach 23. The standard of whether reasonable grounds exist objectively is determined using a practical common-sense approach. As HillJ. stated in Sanchez: The appropriate standard of reasonable and credibly based probability envisions a practical, non-technical and common sense probabilityas to the existence of the facts and inferences asserted. The officer is entitled to “put two and two together”. R. v. Jir 2010 BCCA 497, 264 C.C.C. (3d) 64, 295 B.C.A.C. 231 at para. 27

24. The judgment of the Ontario Court of Appeal in Golub is of particular assistance. In considering the test for finding reasonablegrounds for arrest Doherty J.A. held (at paragraph 18) that the test is not as exacting as it might be in other situations where reasonablegrounds are required but more time for consideration is available (such as the consideration of the validity of the grounds for a searchwarrant): Mr. Harris’ reliance on the search warrant cases is misplaced. Both a justice and an arresting officer must assess the reasonableness ofthe information available to them before acting.

It does not follow however, that information which would not meet thereasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. Indetermining whether the reasonableness standard is met, the nature of the power exercised and the context within which it isexercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on anapplication for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changingsituations.

Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on availableinformation, which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officerdeciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [Emphasis added] R. v. Golub (1997), (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.) at para. 18 The Totality Of The Circumstances Must Be Considered 25. It is well established that the standard of reasonableness must be met in the totality of the circumstances.

It would be an error tomicroscopically examine each aspect of the case by itself. The question is not whether each aspect of the grounds examined in isolationestablishes reasonable grounds, but whether all of the information taken in its totality satisfies the test. The circumstances must thereforebe considered cumulatively, not on a piecemeal basis. R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at 1168, 52 C.C.C. (3d) 193 at 215 III. DISCUSSION A. Subjective Grounds for Arrest 26.

Constable Pulchny clearly testified that he believed he had reasonable and probable grounds to arrest the Accused for possessionof a controlled substance.

In general terms (because he referenced all of the information he relayed in his testimony) he testified that hebelieved Bhinder was engaged in drug trafficking out of premises situated at 10777 University Blvd., and that the Accused’s associationwith Bhinder, attendance at the premises, and the nature of the Accused’s attendances at the premises formed the basis of his reasonableand probable grounds to arrest the Accused for possession of a controlled substance. B Objective Grounds for Arrest 27.

The Crown submits that Constable Pulchny’s belief was reasonable, using a practical common-sense approach and consideringthe totality of the circumstances. In reviewing all of the information that Constable Pulchny testified about in its totality, there are anumber of points which should be kept in mind: (

i) This is not a case where the credibility of the officer’s observations has been challenged. Nor could it be said that his relianceon other officer’s observations conducting surveillance was unreasonable. Constable Pulchny testified about the way in which thesurveillance reports were compiled giving rise to guarantees of reliability. In the Crown’s submission, this Court can take theobservations testified about in court as facts for the purpose of the voir dire. (ii) These observations or facts in this case do not provide direct evidence (which is not required).

Rather, it is a circumstantial case- in that Constable Pulchny relies on these observations to draw inferences about the activities being observed, and collectively theseinferences give rise to his belief that the Accused was in possession of drugs. In assessing whether these inferences were objectivelyreasonable, the court must do so through the lens of someone with the experience, training, knowledge, and skills of the officer (e.g.Juan). (iii) While to some extent it is necessary to detail specific pieces of information and inferences in assessing whether Cst.

Pulchny’sbelief was reasonable, it would be an error to microscopically examine each aspect of the case in isolation. The circumstantial evidencemust be considered cumulatively. (Debot). Moreover, the circumstantial evidence does not need to exclude all possible innocentinferences or explanations. (MacCannell). The standard of “reasonable probability” or “reasonable belief” is less than the civil standardof balance of probabilities. (Jir) Point 1 – The Accused is an associate of Bhinder 28.

In the Crown’s submission, it is a necessary starting point to consider how the police first come into contact with the Accused(who is unknown to the investigation prior to his arrest) and why he came to their attention. In this case, Bhinder’s believed role as aleader in the drug trade informs Constable Pulchny’s grounds for arrest. By way of comparison, in Lacasse the court consideredinformation from informants that Mr. Papadolias was a high-level drug dealer, and confirmatory surveillance of him, as relevant to thegrounds for Mr. Lacasse’s arrest. 29.

To use an extreme example, the police make observations of the Accused interacting with Mr. Smith on multiple occasions. ButMr. Smith is a bank teller working in that capacity. It is clearly relevant, and provides context for the police’s observations of anyassociation between the bank teller and Mr. Smith and any inferences that they may draw from them. Contrasting, if the policereasonably believe that Bhinder is a drug dealer, as in Lacasse, that is information that informs their grounds for arrest. 30.

In this case, Constable Pulchny has ample reasons to believe that the Accused associates with Bhinder, including:

(

i) The Accused is seen in Unit 1604 with Bhinder and Ahmed on May 7, 2015; (ii) The Accused is seen with Bhinder at 8:18 p.m. on May 13 th riding the elevator from P1 to the lobby; (iii) The Accused is seen with Bhinder on May 14 th in the elevator bay on P2 shortly after Bhinder’s Black Charger opened the gate for P2. The Accused is then seen riding the elevator from P2 to the ground floor, where he goes outside from the lobby. The Accused then comes back into the building and uses the fob for Unit #1604 to go to the 16 th floor. 31 . Moreover, there is a reasonable basis for Constable Pulchny to believe that the Accused was associating with Bhinder on three other occasions: (

i) On May 6 th , the Accused is seen in the company of UM#1 going to the 16 th floor and turning left (the direction of Unit 1604); (ii) On May 12 th , the Accused enters the elevator with UM#1, exits on the 16 th floor and turns left; (iii) On May 27, the Accused is seen with Ahmed exiting on the 16 th floor and turning left. 32 . The instances where the Accused is not directly seen in the company of Bhinder requires context, to fully appreciate that he is directly associating with Bhinder’s associates (discussed further below).

But even without that context, when the totality of the evidence is considered, the overwhelming inference is that on all six occasions the Accused was associating with Bhinder and Bhinder’s unit. For example, it is completely reasonable to infer that on every occasion that he attends the 16 th floor he is going to Unit 1604 given that he knows Bhinder and that he turns in that direction or, and on occasion has been sighted in the unit and used the fob for that residence.

This serves as a good example where piecemeal analysis would lead to a misapprehension of the evidence or the imposition of too high a standard (i.e. that the officer was required to exclude all possible explanations – for example that St. Germaine had another friend who lived on the 16 th floor) would result in an error of law. Point 2 - Bhinder is trafficking drugs from 10777 University Drive (Units 1406, 1503, 1906) 33 . Bhinder’s activities on the premises is relevant because this is where the Accused is seen associating with Bhinder.

If the premises are reasonably believed as being used for illicit purposes, it provides the context to infer that somebody present or associated is involved in the illicit activity. ( Whitaker; Chaif-Gust) 34 . To return to the extreme example of Mr. Smith, the bank teller, if the Accused is transacting with Mr. Smith in a bank, observations of short stay durations and counting of money would give rise to certain inferences. However, if the Accused is believed to be attending the premises of a drug trafficking operation, these same observations may reasonably give rise to very different inferences. 35 .

It is also important to note at the outset that the evidence does not need to prove that Bhinder was, in fact, trafficking drugs from the premises. Such a case would involve the results of the searches of the units. This evidence was not adduced because it would be irrelevant to the issue of whether reasonable grounds to arrest existed at the time of the arrest of the Accused. ( Grotheim) The standard is whether Constable Pulchny held a reasonable belief that Bhinder was trafficking drugs from the premises. 36 .

In this case, the investigation commenced with a tip from a confidential informant that Bhinder was the leader of the “Somali crew” engaged in a turf war over the drug trade. There is no indication as to the reliability of the information, although Constable Pulchny had prior knowledge of Bhinder as a known drug trafficker in the City of Surrey.

As in the case of Debot , subsequent corroboration by police reconnaissance is important to assess whether the tip was sufficiently reliable, and ultimately whether the Constable Pulchny’s belief that Bhinder was trafficking from the premises was reasonably probable on the information that he had. 37 . This is a case where the police undertook extensive surveillance of Mr. Bhinder after receiving the tip. At this time, in May of 2015, there was a public safety initiative given the number of shootings in the City of Surrey. 38.

Police set up surveillance on Unit 1604, 10777 University Blvd. (the known residence of Bhinder) commencing on May 5, 2017 and ending on May 27, 2015. The surveillance included active “lifestyle” surveillance as well as security system reviews on the following 13 days during this time period: May 5, 6, 7, 8, 11, 12, 13, 14, 20, 21, 25, 26, 27. 39. Constable Pulchny provided detailed evidence of observation made of Mr. Bhinder’s apartment and two other apartments believed to be associated on the 15 th and 19 th floors of the same building (1503 and 1906).

In very general terms, Constable Pulchny testified that the surveillance observations validated the information received from the confidential informant, in that he believed that Mr. Bhinder and a number of associates were trafficking drugs from 10777 University Boulevard. 40. In order to assess the objective grounds for his belief, the Crown submits that it is convenient to consider the information possessed by Constable Pulchny within the following categories (although they link together):

a) Bhinder’s activities;

b) Business model of a drug trafficking organization (which includes assessing the activities of persons associated to Bhinder);

c) Stash sites;

d) Unreasonable pedestrian traffic generally;

e) Attendance of known drug traffickers and use of rental vehicles;

f) Other specific examples of behaviour consistent with drug trafficking.

Bhinder’s activities 41. Constable Pulchny relayed information that he possessed which associated Bhinder to Unit 1604 (confirming it was his residence) and was confirmatory of the tip that he was a leader in trading drugs, including: (

i) On May 7, 2015 Bhinder was observed around 3:30 p.m. exiting the driver’s seat of a Grey Malibu and entering the front door carrying a jar and a white plastic bag with a heavy item in it. He went up to the 16 th floor and turned left (towards Unit 1604). He then went to Enterprise car rentals to switch the vehicle with a Dodge Charger. Constable Pulchny testified that it is consistent with his experience for drug traffickers to use rental cars; (ii) After returning to the residence, Bhinder lets two East Indian males in from the lobby and goes to the 16 th floor, turning left.

Those male depart 23 minutes later. Constable Pulchny testified that it is consistent with his experience of a short stay to purchase drugs; (iii) On May 7 (as noted above) Bhinder was seen inside unit 1604 with the Accused and Ahmed; (iv) On May 12, 2015, Bhinder was observed at 4:02 p.m. entering the elevator on the 16 th floor and departing on the ground floor. Seconds later he returns to the female and a small dog and they all exit on the 16 th floor and turn left.

Constable Pulchny testified that the female was believed to be his girlfriend and their presence was corroborated his belief that Bhinder lived in 1604; (

v) On May 12 th at 8:44 p.m., a White Ford Pick-up arrives on P1. Bhinder travels from the 16 th floor and departs on P1. At 8:50 Bhinder returns to the P1 elevator now carrying a black box, clutching it close. He goes back to the 16 th floor and turns left towards his unit. The Ford departs. Constable Pulchny testified that these observations were consistent with a reload. (vi) On May 13 th at 2:29 p.m. Bhinder enters the elevator on P2 and fobs to the 16 th floor. Constable Pulchny describes how he looks to the right before proceeding to the left in a manner consistent with a “heat check”.

Bhinder had multiple cell phones in his hands (something which Constable Pulchny described as, in his experience, being consistent with drug trafficking). (vii) On May 13 th around 7:15 p.m., Bhinder travels from the 16 th floor to P1 with no object in hand. He then returns to P1 carrying a weighted black gift bag with white lettering on the side and returns to the 16 th floor.

Constable Pulchny testified that these observations were consistent with a reload. (viii) On May 20 th at 3:37 p.m., Bhinder, Ahmed and a male carrying a box enter the elevator on P1 (male carrying box previously attended on May 12: UM#6), exit on floor 16 and turn left. At 4:07, the male who was carrying the box, departs from the 16 th floor without the box.

Constable Pulchny testified that these observations were consistent with a short stay, and delivery of drugs or exchange consistent with drug trafficking. (ix) On May 25 th at 4:17 Bhinder is observing opening the door for Ahmed who was carrying a box (consistent with the Wells Co. box which is described below in the context of Ahmed). Bhinder gives Ahmed a fob (who leaves from the ground floor) and continues with the box to the 16 th floor, where he is seen kicking the box to the left.

Constable Pulchny testified that the Wells Co was a business engaged in storing and preserving of food, including Ziplock freezer dehydrated bags. He testified that in his experience such items were used in the trafficking of drugs such as cocaine. (

x) On May 25 th at 4:33, Bhinder and Ahmed (who has returned with what looks like shopping bags) are seen sitting on the floor inside Unit 1604. (xi) On May 25 th at 5:15 p.m., Bhinder takes the elevator with a female from the 16 th floor to P1, where he removes a backpack from the Buick. The female leaves and Bhinder returns to the 16 th floor with the backpack (n.b. for later discussion of associates, Ahmed has the backpack when he leaves at 9:02) (xii) Also on May 25 th , at 9:30 p.m., Bhinder travels from the 16 th floor to P1 while texting on his phone and exits on P1.

At 9:37, an orange F150 arrive s and stops on P1 where Bhinder was last seen. The Ford F150 then travels to P2 using the fob associated to Unit 1604. It returns to P1 where Bhinder and UM#19 enter the elevator. Bhinder is holding a plastic bag to his chest. UM#19 is carrying a backpack and a binder looking object. They both exit on the 16 th floor and turn left.

At 10:05 Bhinder, UM#19, as well as UM#s 18, 17, 16 and a dark skinned male leave the 16 th floor and depart on P1 driving vehicles discussed below, except for Bhinder who leaves in his Dodge Charger from P2. (xiii) On May 26 th at 4:01 p.m., Binder and Ahmed enter the elevator from P2. Ahmed is carrying this white item (described by Constable Pulchny as a plastic bag, with a rectangular shape, and tied in the middle – subject of cross-examination). Bhinder is observed with multiple cell phones.

They exit on the 16 th floor and turn left. (xiv) Also on May 26 th , another vehicle registered to Bhinder, a CTS Cadillac, was observed in association with UM#19, which is discussed below. (xv) On May 26 th , at 5:39 from the 15 th floor (using the fob for 1604) and departed on the 16 th floor. (xvi) On May 27 th at 4:09, Bhinder and UM#2 were observed in Unit 1503. 42. Based on the foregoing, the Crown submits that Constable Pulchny had a credible basis to found his belief that:

(1) Bhinder resided in Unit 1604;

(2) Bhinder used more than one vehicle including a rental vehicle;

(3) Bhinder used multiple cell phone;

(4) Bhinder associated with persons not resident to the building, including persons whose attendance was consistent with supplying drugs to Bhinder and persons obtaining drugs from the premises; and

(5) Bhinder had a connection to the 15 th floor and Unit 1503 in particular. In addition, Bhinder was seen to associate with a number of individuals, whose activities further inform Bhinder’s use of the premises, which is discussed below. Business model of a drug trafficking organization (which includes assessing the activities of persons associated to Bhinder) 43. Constable Pulchny testified about his experience in investigating drug trafficking organizations. He testified that it operated as a business, which involved several individuals who performed specific roles.

Particular to this investigation, he testified about the observed activities of a number of individuals. These submissions will focus on a few as they relate to: (1) observations which, in Constable Pulchny’s experience, confirmed his belief that Bhinder was engaged in illicit activity; and (2) as they relate to the Accused’s connection to the illicit activity. 44. UM#1 : Constable Pulchny testified that UM#1’s activities throughout the surveillance were, in his experience, consistent with those of a “runner” or a “door boy”.

He testified that UM#1’s access to multiple floors likely used to store commodity (15, 16, 19), as well as the number of instances where he was observed to escort somebody up or down was consistent with this role: (

i) On May 7 th police established that UM#1 had a connection to the 19 th floor. ( Constable Pulchny testified on cross-examination that towards the end of the investigation he recalled something about UN#1 residing in 1906. Defence counsel did not establish precisely when he learned of this information or how it could have factored into his grounds). (ii) On May 12 th , at 5:41p.m. UM#1 meets Ahmed (who is carrying Wells Co boxes) and fobs him up to the 16 th floor. At 6:57, UM#1 fobs down a black male (who was not seen arriving) from the 16 th floor to P1.

UM#1 later grants access to the Accused (discussed in more detail below). (iii) On May 13 th at 3:05 p.m., he leaves from the 16 th floor to the ground where he appears to purchase items from the convenience store. He returns to the 16 th floor where he is observed inside Unit 1604. At 3:10 p.m., UM#1 enters the elevator on the 16 th floor and departs on the 19 th floor. One minute later, he returns from the 19 th floor to the 16 th floor.

Later in the evening, UM#1 is observed with Ahmed and a Wells Co. box fobbing Ahmed up to the 16 th floor. (iv) On May 14 th , at 2:01 p.m., UM#1 enters the elevator on the 15 th floor and gets off at the ground floor. At 2:05, UM#1 goes from the ground floor to the 19 th floor. (

v) On May 20 th , at 3:56 p.m., UM#1 provides access to two black males from the lobby. UN#1 fobs the males to the 16 th floor and continues on to the 19 th floor. At 4:41 p.m., five males get on from the 16 th floor including UM#1 and the two black males from 3: 56 and they exit on the 19 th floor. Five minutes later all 5 black males go from the 19 th floor to P1. 45. UM#2 : Constable Pulchny testified that UM#2 appeared by observations to be an individual within the drug trafficking operation based on his associations with Bhinder and his access to the identified suites, including the following observations: (

i) On May 8 th at 1:09 on, UM#2 is in the elevator to the 15 th floor without using a fob, carrying a black shoulder bag. At 1:32, UM#2 is going from P1 to the 16 th floor using a fob. At 2:11, Bhinder and UM#2 leave Unit 1604 and board the elevator from the 16 th floor. They depart in Bhinder’s rental Dodge Charger and go to Surrey Central Mall, where Bhinder mails a large envelope. (ii) On May 12 th at 1:40 p.m., UM#2 entered the elevator on P1 and was buzzed up to the 15 th floor by an individual associated with Unit 1503. At 3:26, UM#2 enters the elevator from the 16 th floor and departs on the ground floor.

One minute later, UM#2 brings UM#5 back up to the 16 th floor and they turn left. (iii) On May 13 th , at 11:16 p.m., UM#2, At 11:18, UM#2 … (iv) On May 20 th , UM#2 is fobbed down from the 16 th floor. (

v) On May 27 th , at 3:27 p.m., UM#2 is granted access from Unit 1604 and enters the P1 lobby, departing on the 16 th floor carrying a shoulder bag. (vi) On May 27 th , UM#2 is observed with Bhinder inside Unit 1503. 46. Ahmed : Constable Pulchny was informed that Ahmed had a criminal record for trafficking in controlled substances from Calgary. Constable Pulchny also related information that connected Ahmed to Bhinder and was consistent with Ahmed being involved in the trafficking of drugs with Bhinder, including: (

i) On May 7, 2015, Ahmed is seen inside Unit 1604 with Bhinder and the Accused. (ii) On May 12 th at 1:30 p.m., UM#5 goes from the 16 th floor to the lobby, where he opens the door for Ahmed and another male (UM#6 discussed above – he departs at 1:57). They all go to the 16 th floor and turn left. At 2:57, Ahmed enters the elevator on the 16 th floor and is seen with two cell phones and counting money. He departs in a taxi cab. He goes to his residence in Burnaby and gets into a Red Dodge Journey.

He then a business identified as Wells Co. in Burnaby where he receives two brown boxes, which are placed in the rear of his car. He goes back to his residence and takes the boxes inside. The ordinary business as known to Constable Pulchny and its relevance to drug trafficking has already been set out above.

(iii) Later on May 12 th at 5:41 p.m., Ahmed is seen carrying one Wells Co. box and with UM#1 he is fobbed up to the 16 th floor and they both turn left. (iv) Then at 9:31 on May 12 th , Ahmed is seen leaving the 16 th floor carrying the same style box as he was at 5:41 to the ground floor. He departs in a cab. (

v) On May 13 th at 3:44 p.m., Ahmed enters the elevator on the 16 th floor and fobs down a black male to P1. (vi) On May 14 th , at 1:28 p.m., Ahmed goes from P1 to the 15 th floor with a black “man bag”. He is then viewed inside Unit 1503. (vii) On May 20 th , at 3:37 p.m., Bhinder, Ahmed and UM#6 enter the elevator at P1 and exit on the 16 th floor, turning left (UM#6 leaves at 4:07 without the box as noted above). (viii) On May 21 st , at 3:27 Ahmed enters the elevator from the 16 th floor and exits on the ground floor. He departs out the front door.

At 3:39 he enters the elevator at P1, now holding up a white plastic bag. He goes to the 16 th floor and turns left. Constable Pulchny testified that in his experience this was consistent with Ahmed meeting a vehicle at P1, conducting a transaction for drugs, and returning to Bhinder’s residence on the 16 th floor. (ix) On May 25 th , at 4:17 p.m., Bhinder opens the lobby door for Ahmed, provides him a fob, and takes a Wells Co. box from him up to the 16 th floor. At 4:28 Ahmed returns with some plastic shopping bag and fobs up to the 16 th floor.

Constable Pulchny testified that the significance of his return was not in what he was carrying but that he was clearly a trusted confident for Bhinder to give him access to a fob. (

x) The two (Bhinder and Ahmed) are then seen sitting on the floor of Unit 1406 at 4:33 p.m. Yet two minutes later, at 4:35 p.m., Ahmed accesses the elevator from the 16 th floor and departs on the ground floor. And then at 4:38 p.m., Ahmed is back up to the 16 th floor. After 10 minutes, he goes from the 16 th floor to P1. He lets in three black males and they all go to the 16 th floor and turn left. The three males arrived in a rental vehicle. (xi) On that same day, May 25 th , Ahmed is observed at 9:02 p.m. going from the 16 th floor to the ground floor and departing in a taxi cab.

Notably, he is carrying the same purple and silver backpack which Bhinder previously retrieved from the Buick at 5:15 p.m. earlier that day from P1. (xii) On May 26 th at 4:00, Bhinder and Ahmed enter the elevator at P2 two minutes after Bhinder’s Dodge Charger is observed to be driving through the underground security gate. Ahmed has a white item in his hand (described in cross-examination as plastic bag rolled up with a rectangular shape and a band around the middle).

In cross-examination it was made clear that while the bag was not concealed under clothing, it was held behind his back so it would not be visible to anybody entering the elevator. They proceed to the 16 th floor, turning left (toward Unit 1604). Constable Pulchny testified that this observation was indicative of a close association between Ahmed and Bhinder, as well as consistent with bringing packages. (xiii) On May 26 th at 4:39, Ahmed and UM#19 board the elevator on the 15 th floor, and Ahmed gives UM#19 a fob. He uses the fob (which is registered to Unit 1906) to activate the elevator.

UM#19 leaves on the 19 th floor with a bag over his shoulder and talking on his cell phone. (note UM#19 is subsequently associated to Bhinder’s Cadillac CTS and has observed access to the building). (xiv) At 5:45 p.m. on May 26 th , Ahmed uses a fob associated to Unit 1604 when on the 15 th floor. He uses it to allow for UM#12 to go from the 15 th floor to P1, although Ahmed remains on the 15 th floor. (xv) On May 27 th , at 2:57 p.m., Ahmed enters the elevator from the 16 th floor using the fob from Unit 1604 and departs on the ground floor.

At 3:10, Ahmed returns and goes up to the 16 th floor using a Unit 1604 fob. (xvi) On May 27 th at 6:44 p.m., Ahmed and the Accused enter the building and go to the 16 th floor, turning left. This observation is discussed further below. 47. The above noted observations provide a credible basis for Constable Pulchny’s belief that: Bhinder’s had associates that behaved in a manner consistent with a drug trafficking organization in that trusted individuals could be identified (who had access to people and placed), and that they played roles (i.e. the runner).

This is not to say that this submission should be considered in isolation of the other factors, including the role of stash sites. Stash sites 48. Constable Pulchny testified that, in his experience, where people reside in a place they tend to keep the money and drugs off-site. Constable Pulchny testified that in the context of this case, he believed that the stash sites were located on the 15 th or 19 th floor (specifically Unit 1503 or Unit 1906). 49. Constable Pulchny gave evidence about the fob security systems in place which limited access to the general building to floors not associated to their unit.

Without detailing all of the evidence about the attendances that touch upon the 15 th , 16 th , and 19 th floors, the Crown says that – considering a fraction of the information known to Constable Pulchny - the following supports his belief in the organization of stash sites within the building: (

i) Bhinder is seen on the 15 th floor and in Unit 1503. UM#1 is seen on the 15 th , 16 th and 19 th floors. UM#2 is seen on the 15 th

floor (in association with Unit 1503) and he is also associated to Bhinder on the 16 th floor. Ahmed is seen on the 15 th floor and in Unit 1503 and on the 16 th in Bhinder’s Unit 1604. In short, Bhinder himself and/or his associates, apart from his Unit 1604, are accessing the 15 th and 19 th floor, and the police have identified, through investigative means, the associated units as 1503 and 1906. (ii) As regards the 15 th floor, people arrive on the 16 th and leave on the 15 th or vice versa or otherwise show a connection between the floors. Apart from the Accused, there are the following examples:

a) On May 12 th , after noon, Mr. Gropp (a known drug trafficker in the City of Surrey) is buzzed into the building through the lobby. He exits on the 15 th floor and at 12:27 is observed having a cigarette on the balcony of Unit 1503. ( As noted above, at 1:40 p.m. UM#2 was buzzed up to the 15 th floor by an individual associated to Unit 1503) . At 2:17 p.m., Gropp enters the elevator from the 16 th floor and leaves on the ground floor;

b) On May 26 th , at 5:39 p.m. Bhinder boards the elevator on the 15 th floor and uses a fob associated to Unit 1604 to go to the 16 th floor. At 5:45, UM#12 boards the elevator from the 15 th floor and Ahmed uses a fob for Unit 1604 to send UM#12 down to P2 by elevator.

c) At 6:28 on May 26, UM#15 fobbed himself, using a fob associated to unit 1604, from the 15 th floor to the 16 th floor.

d) On May 27 th , UM#18 was observed in Unit 1503 around 5:51 p.m. At 6:18 p.m., UM#18 boards the elevator on the 16 th floor and departs on P1. He leaves in a Chevy Malibu rental vehicle. (iii) There is also information about traffic associated to Bhinder and related to the 19 th floor. In addition to information related to UM#1, Constable Pulchny described the following:

a) On May 26 th , at 4:12 p.m. UM#19 is observed walking away from the Cadillac associated to Bhinder, just after Bhinder’s car was observed parking in P1. UM#19 then meets with UM#5, who has gone from the 19 th floor to the exit at the front entrance to meet UM#19. They appear to be talking. UM#19 then uses the fob for Unit 1906 to gain entry. At 4:39, UM#19 and Ahmed board the elevator from the 15 th floor. Ahmed gives UM#19 a fob from Unit 1906 to activate the elevator to P1 (discussed above). At 4:42, UM#19 is seen getting into Bhinder’s Cadillac through the secure gates of P2.

At 4:50, UM#19 uses a fob associated to Unit 1906 to go from P2 to the 19 th floor. But at 4:54, UM#19 and UM#5 enter the elevator from the 15 th floor. UM#5 used the fob from Unit 1906 to send UM#19 down to P2, while UM#5 remained on the 15 th floor. 50. There is more evidence than outlined here to connect Bhinder to apartments 1503 and 1906.

But in the context of what it required for reasonable grounds, the Crown submits that there is – based on the information outlined above and viewing it through the lens of the officer’s experience and training, clear, rational and common sense support for the officer’s belief that drug activity on the 15 th and 19 th floor was relevant as stash sites for Bhinder’s trafficking operation. Unreasonable pedestrian traffic generally 51.

Constable Pulchny testified about the high level of pedestrian traffic associated to units 1604, 1906, and 1503 (including multiple stays of persons with no standing in the building for a period of a few minutes ranging to an hour). He testified that in his experience this level of pedestrian traffic was consistent with drug trafficking. In addition to the observations of the Accused which are set out below under a separate heading, there are many examples. Attendance of known drug traffickers and use of rental vehicles 52.

Constable Pulchny testified that during the course of surveillance, two known drug traffickers were observed in their investigator. Both attended the premises (1503 or 1604 or both) that were believed to be connected to the drug trafficking organization lead by Bhinder, which was operating from the building. 53. In addition, a number of people attended who drove vehicles that were known to be, on the basis of vehicle checks, rental vehicles. 54.

Constable Pulchny testified that, in his experience, the fact that people frequented premises associated to Bhinder who were drug traffickers was confirmatory of drug trafficking at the premises. Similarly, the extent of rental car traffic was also consistent with the theory that Bhinder was engaged in the drug trade from the premises. Other specific examples of behaviour consistent with drug trafficking 55.

Constable Pulchny testified that the entirety of what was observed over the 13 days of surveillance was consistent with the source information that Bhinder was a leader in the drug trade and engaged in drug trafficking from 10777 University Blvd. He also testified that certain observations were consistent with reloading the supply of drugs, and obtaining materials to preserve or package those drugs. At the same time, he described instances of “customers” within the “business” model he described.

And in particular he had and provided information about transactions that he viewed as consistent with drug trafficking, including two examples: (

i) On May 27 th he described an observed “hand-to-hand” transaction at 4:50 p.m. between UM#15 and a driver of a Chevy Sunfire. UM#15 came from and returned to the 15 th floor ( note UM#15 is referenced above) . (ii) The Accused’s actions on May 14 th (discussed further below)

56. In

summary, considering the standard – in that it is not a prima facie case but a reasonably held belief, Constable Pulchny had more than enough information, viewed objectively and from his experience and training, to believe that Bhinder was engaged in the trafficking of narcotics from 10777 University Blvd. Point 3 - The Accused had a substantial connection to the illicit activity 57. This is not a case where the police arrest the Accused after one short stay at premises that they reasonably believe to be the site of a trafficking operation.

Rather, it is clear from the testimony of Constable Pulchny that he is mindful that he requires grounds to connect the suspect to the drug trafficking beyond mere association with Bhinder or presence on the premises. That is how he articulated his grounds and assessed objectively they are reasonable: (

i) On May 6 th the Accused arrived at the building carrying a gym bag and was greeted by UM#1 at 6:29 p.m. UM#1 fobs them up to the 16 th floor, and they turn left. At 6:69 p.m., the Accused departs to the ground floor (without UM#1) and leaves. Cst. Pulchny testified that, given the timeframe, this would be consistent with a short stay accustomed to drug trafficking. (ii) On May 7 th , at around 5:54 p.m. the Accused is buzzed into the building and rides the elevator to the 15 th floor. He is then observed at 6:11 to be inside Unit 1604 with Bhinder and Ahmed.

This shows that the Accused is capable of moving between the 15 th and 16 th floor, and that he is an associate of Bhinder and Ahmed. (iii) On May 12 th , at 7:19 p.m., the Accused enters the elevators with UM#1 and they travel to the 16 th floor. He has nothing in his hands. At 8:15, the Accused departs from the 16 th floor carrying a plastic bag with a box shaped object inside of it. Cst.

Pulchny testified that in his experience this was significant as consistent with the theory that Bhinder was trafficking drugs: people would drop off money and obtain drugs. (iv) On May 13 th , at 8:18 p.m., the Accused travels with Mr. Bhinder from the lobby to the 16 th floor and turns left. He leaves at 8:22 p.m., departing from the 16 th floor to the ground floor. Cst. Pulchny testified that in his experience this was consist

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