R. v. Slemko and Stewart, 2018 BCPC 378

Citation: R. v. Slemko and Stewart 2018 BCPC 378 Date: 20180725 File No: 219270-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW RONALD SLEMKO and ANTHONY JOSEPH STEWART RULING ON VOIR DIRE #2 OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: H. Magnin, M. Wheeler (for Federal Crown) Counsel for the Defendant: J. Sherren (for Slemko) Counsel for Stewart : D. Ferguson Place of Hearing: Surrey , B.C. Dates of Hearing: June 19, 22, 25; July 6, 23, 24, 2018

Date of Judgment: July 25, 2018 INTRODUCTION [ 1 ] THE COURT: These are the Reasons in voir dire #2 in the case of R. v. Andrew Slemko on Surrey registry court file number 219270-2-C. [ 2 ] Defence for Mr. Slemko challenges the grounds upon which the general warrant was issued. DEFENCE [ 3 ] Counsel for Mr.

Slemko challenges the validity of the general warrant that issued April 28th, 2016. [ 4 ] Specifically, it is submitted in a written email doubling as written notice that: A consideration of the contents of the Information to Obtain following a decision of unconstitutionally obtained observations will fail to reveal the necessary reasonable grounds required to justify their issuance. [ 5 ] Counsel submit that the ITO dated April 28th, 2016, sworn by Cst. Hartnett, has portions that should be excised by agreement of counsel.

A reference to an unrelated clandestine lab found by the police in 2014 as indicated in paragraph 16 needs to be excised. The first sentence in paragraph 17 of the ITO needs to be excised. Other references from a search from 2014 found in paragraph 64(d), (

e) and (f), and more specifically references to locating certain items during that search must also be excised. [ 6 ] As I understand the joint proposal, those items were located in contravention to the accused's Charter rights. As such, it would be obviously unfair to have these illegally-obtained items to be used as grounds to support the general warrant. Of course, Cst. Hartnett may not have known the future rulings that were to take place with respect to those searches, and as such there might have been an argument to suggest they were added in the ITO in good faith. Nevertheless, I agree with counsel that excision is the fairest approach to the accused. [ 7 ] A brief

summary of the defence argument is that there are sufficient frailties in the ITO with respect to informant information, evidence of disposition or propensity and surveillance observations such that the issuing justice could not have issued the general warrant. THE CROWN POSITION [ 8 ] The Crown is steadfast in their submission that there were ample, reliable grounds upon which the authorizing justice could have issued the warrant. THE ISSUE [ 9 ] Whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued.

THE LAW [ 10 ] There are a number of cautions that I must instruct myself on. My role is not to do a de novo hearing. My review is not meant to double guess or supplant the initial authorizing justice's views with my own conclusion or what I think the end result should be. It would be a mistake to peer through a retrospective lens and consider whether the issuing justice would still issue the authorization now that certain paragraphs have been vetted or reconsidered. I must not separate each piece of information that is being tendered as grounds of the issuance of the authorization.

The task is more holistic in the sense that I must consider the grounds in their totality. A microscopic examination of each piece of the information is not useful. [ 11 ] For example, in this case examining the details of the informant needs to be considered within the broader context of all the other information.

If for some reason I were to determine the quality of the informant information to be somewhat scant or otherwise devoid of reliability indicators, I should not automatically disregard the information but consider further whether there are other reliability indicators that might support or corroborate some of the informant information. On this point, I agree with and adopt into these Reasons the law on this issue as captured in the Crown's written submissions at paragraphs 23, referring to R. v. Casey , [2007] ABCA 380, affirmed by the Supreme Court of Canada and followed by our B.C. Court of Appeal.

The paragraphs in the written submissions are at paragraphs 17, 18, 19, 20 and 21. [ 12 ] I find some guidance in Judge Gardner's decision bearing the same name, R. v. Slemko , but having to do with an unrelated matter, wherein at paragraph 11 he summarizes some main points that I too consider to be appropriate. He refers to the case of R. v. Liu , [2014] BCCA 166, and summarizes the jurisprudence in this manner: My role in reviewing the validity of the search warrant is to consider whether the material filed in support of the warrant could support the issuance of the warrant.

I must examine the information in its totality and not on a piecemeal basis, but in a practical and non-technical manner with a focus on a common-sense basis. It is not a question of asking if the justice would have issued the warrant based on the information now available at the review, but more of an objective standard as to whether they could have done so. The threshold that I must follow is one of reasonable probability, which is distinct from the trial standard of proof beyond a reasonable doubt.

Further reasonable grounds may be said to exist at the point of which credibility based probability replaces suspicion.

ANALYSIS [ 13 ] I do not believe detailed Reasons are required when the face of the ITO so obviously satisfies me that the material filed in support of the warrant clearly establishes a strong foundation upon which the issuing justice could have issued the warrant. However, counsel for the Crown and defence have been detailed in their submissions and a brief

summary seems appropriate. [ 14 ] In this case there was some information provided by an informant and defence is correct in their approach to direct me to R. v. Ali-Kashani , [2016] BCJ No. 2984 , a decision of the Honourable Judge St. Pierre from 2016. In that decision, the court details questions that need to be considered when dealing with confidential informants. Was the information provided compelling? Was the source credible? Was there any corroboration of the information? [ 15 ] With respect to this information, counsel for Mr. Slemko argues that it is essentially too vague to be of any value.

It is argued that, at its best, it places Mr. Slemko as an associate to some unknown group of people and the source of the informant's information is not known. [ 16 ] In these Reasons, I do not need to go through each ground, such as the informant's information and examine them. In fact, in my view, that would be a mistake. But in considering the informant, I see no harm in asking myself whether there are indicators of reliability. If there are not and there is no other information to consider that might formulate the grounds for the issuing justice, then that would be important for me to consider.

Of course, that is a hypothetical situation, as again this ITO is not solely grounded upon informant information. [ 17 ] What was the degree of detail in the tip? Are there indicators of reliability in the tip? I find that the informant's information is detailed. This informant was not a tipster who anonymously gave information. Examining the ITO's paragraphs 66 through 71, the authorizing justice would have been able to see a substantial amount of unvetted information about the informant. The remaining information still provides that there have been a number of handlers for informant A. At least Cpl.

Boechler has been a handler since November 2013. Previous to this date, Cpl. Blair was the RCMP handler. [ 18 ] The information indicates that informant A is motivated by financial gain. Of course this raises issues of reliability. On that topic, the authorizing justice would have seen that there are no other motivators. For example, informant A had not received any charge, concession or intersessions.

The affiant confirms that some information exists as to criminal record, but confirms that there are no entries with respect to crimes of dishonesty. [ 19 ] Although I would agree that more detailed information with respect to the criminal record might have been useful, it is not available for review. The affiant confirmed that the two handlers shared information as to the informant and a report was generated about some of those details. The affiant told the authorizing justice that between 2011 to 2013, Cpl.

Blair was provided information on 10 occasions. [ 20 ] On this topic, defence argues that what has been vetted appears to be the amount of times enforcement action took place. Defence counsel queries was it one of the 10 times thus indicating a 10 percent success rate? Counsel says once vetted, "it is difficult to make sense of this passage." A basic reading of paragraph 67 is that “Between 2011 and 2013 information was provided on 10 occasions.

Enforcement action was taken and the information provided resulted in the discovery of clandestine laboratories producing synthetic drugs.” On this point, it is not lost on me as the Crown highlighted in their submissions that a basic reading of the paragraph is that not just one, but more than one lab was discovered. The informant was paid money for this information. [ 21 ] Paragraph 68 confirms that between November 2013 and March 8th, 2016, informant A had provided information to Cpl. Boechler on 15 occasions and enforcement action was taken.

Once more, the informant was paid in money for this information. [ 22 ] This is not a situation where someone not known to the police provides an anonymous tip on one occasion that bore no fruit. Two officers who communicated with each other noted in the report some 25 occasions where information was provided. Enforcement action was taken and laboratories were discovered. [ 23 ] With respect to Mr. Slemko, what detail was provided? Counsel for Mr. Slemko argues that the information provided "has no source of knowledge and is completely devoid of any detail." Respectfully, I disagree.

First, both first and last name were provided. That is a fair degree of detail. The RCMP were further told that this identified individual was not acting alone, but was associated to a group. Further, that this group was operating a clandestine laboratory. Particularizing the information even further, the lab was manufacturing synthetic drugs. Apparently the informant also confirmed that there was a large supply of precursor material at the lab. [ 24 ] On this point, it would have been useful to understand the source of this information.

Was the informant told that there was materials at the lab or did the informant attend at the lab and see it? In any event, surveillance was accomplished. The police were able to confirm that Andrew Slemko did in fact exist. They located his address. It was in the Lower Mainland.

Other surveillance was set out in the ITO. [ 25 ] I appreciate that officers are sometimes better to provide full and frank disclosure to the authorizing justice, but I pause to mention that there is some information that seems innocuous or even innocent behaviour that could not possibly substantiate grounds for the issuance of the authorization. For example, in paragraphs 85(

e) the accused is seen walking a trail with another person. There is no information as to who this unknown person was. There was, in my view, nothing untoward or suspicious in the interactions. This meeting or hike as it were might be what the Honourable Judge Brown in R. v. Bruce , [2017] BCJ No. 2600 , referred to as irrelevant or otherwise not appropriate to consider, and I do not consider that. [ 26 ] In paragraph 86, the affiant details some surveillance information confirming that the accused went into Home Depot and purchased a blue tarp, two containers of methyl hydrate and some shop towels.

On this point, the affiant draws on his experience and training. As provided in paragraph 3 of the ITO, he "has become familiar with the materials used for illicit drug production", as well as due to his training, found in paragraph 5, is familiar with "the methods, chemicals, supplies and apparatus required to produce various types of illicit drugs."

[ 27 ] He concludes at paragraph 86(a)(iv), that these items, such as “methyl hydrate, are commonly used in the manufacture of synthetic drugs.” That is a quote. I think the officer meant to say "manufacturing" versus "manufacture." Equally and in fairness the affiant also points out to other uses, such as household maintenance, tasks like painting. [ 28 ] Other surveillance confirmed that the accused visited a Princess Auto Store. At the store, he supposedly looked at a drum dolly and respirator and some other items. To me, looking versus acquiring through purchase is quite different.

However, it would have been open to the issuing justice to consider the possible uses of these two items in the context of producing synthetic drugs. It would have been some information upon which he or she might believe grounds existed to issue the warrant. [ 29 ] A meeting with a man named Skorji (phonetic) took place. That individual had been suspected of operating a clandestine laboratory four months prior to this meeting. A vehicle was exchanged from the individual to the accused who was then seen driving to a storage locker.

The next day surveillance and queries confirmed that the accused had a storage locker at this business. Video surveillance confirmed that the accused not only drove Skorji's truck to the storage facility, but also removed five black 25-litre pails from the truck. On this point, I accept defence counsel's submission that there are no indicators such as labels that are seen that might help the officer know what was contained in the pails.

Again, however, the officer states his belief that: The description of these pails is consistent with the chemical containers used in clan labs, store acids, solvents and other materials with the chemical materials used in synthetic drug manufacture. [ 30 ] While, as the defence speculates, these pails could be consistent with all sorts of purposes, it is not for me to question what weight, if any, the authorizing justice gave this particular observation. It was open to the justice to simply accept the possibility as expressed through the training and experience of the officer. [ 31 ] The Crown at paragraph 30(

c) captures much of the same information as I have set out above in a more succinct manner. Mr. Slemko's purchase and handling of items consistent with the use in a clandestine lab is some corroboration of Slemko's association to the production of synthetic drugs. The manner in which Slemko was observed handling the barrels on April 21st, 2016 is particularly relevant on this point. Here Slemko is seen attending to bring barrels into his locker after a suspicious meeting with an unknown person with a connection to Skorji. After attending the locker he immediately returns to the meeting with the unknown male.

He returns the truck and shortly after Skorji reunites with the unknown male after conducting, in the affiant's opinion, heat checks of vehicles in the area. These circumstances looked at cumulatively provide significant corroboration of the information provided by the informant A. [ 32 ] Heat checks, no apparent source of income but access to expensive luxury vehicles, movement of pails, buying of methyl hydrate, association with others suspected of having clandestine labs, producing synthetic drugs are all just part of the constellation of factors that the authorizing justice could consider.

CONCLUSION [ 33 ] A review of the totality of circumstances found within the four corners of the ITO and the existence of reliable information available to the issuing justice clearly establishes sufficient grounds based on reliable information upon which the issuing justice could have issued the authorization. [ 34 ] As a result, the defence application to quash the general warrant issued April 28th, 2016 is dismissed. [ 35 ] That concludes these Reasons. (RULING RE VOIR DIRE #2 CONCLUDED)