R. v. Yadav, 2022 BCPC 330

Citation: R. v. Yadav 2022 BCPC 330 Date: 20221026 File No: 247485-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court REGINA v. PAVAN YADAV RULING ON VOIR DIRE #3 OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: Michelle Wiancko and Jonathan Langlois-Sadubin Counsel for the Defendant: Patrick McGowan and Gloria Ng Place of Hearing: Vancouver , B.C. Dates of Hearing: October 18, 2022 Date of Judgment: October 26, 2022

Background [1] Mr. Yadav is charged with several drug related offences under the Controlled Drugs and Substances Act. In this Voir Dire(which we have called Voir Dire #3) Mr. Yadav challenges the facial validity of certain search warrants that were executed in this case. [2] On June 29th, 2018 Cst. Damiani, the affiant, swore an Information To Obtain (ITO) judicial authorization to search severallocations: Those five locations were: a) #606- 6538 Nelson Avenue, Burnaby (“606”);

b) A commercial premises at #109-1647 Broadway Street, Port Coquitlam (“Broadway”);

c) A residence at 7764-11th Avenue, Burnaby (“Burnaby”);

d) A white Mercedes ML63 (“ML63”);

e) A Grey Ford Explorer (“Explorer”). [3] In my ruling on Voir Dire #1 and Voir Dire #2 I set out some of the background to this investigation. [4] The police possessed reasonable grounds to arrest Mr. Yadav when he was taken into custody in the parking lot area of 6538Nelson Avenue in Burnaby (the apartment building where Unit 606 is located, also known as the MET2). He was arrested for productionof a controlled substance. At the time of the arrest Cst. Damiani had not yet completed the ITO referred to above. [5] In a prior ruling (Voir Dire #1) I found that Mr.

Yadav had established, on a balance of probabilities, that he possessed a reasonable expectation of privacy in the 6th floor hallway, the secure parkade, the other common areas, the secure fob access records andthe CCTV footage that was obtained at the MET2. The result was that the warrantless searches that were conducted in relation to thosesubject areas were unlawful and constituted a breach of Mr. Yadav’s rights under

Section 8 of the Charter. [6] In Voir Dire #2 I found that the purported exigent entry into 606 was unlawful and constituted a breach of Mr. Yadav’s rightspursuant to

Section 8 of the Charter. [7] It is agreed by both Crown and Defence that any information obtained as a result of the Charter breaches found in those previousrulings should be excised from the ITO pursuant to the excision principles set out in R. v. Grant, (SCC), [1993] 3 S.C.R.223; R. v. Plant, (SCC), [1993] 3 S.C.R. 281 and R. v.

Wiley, (SCC), [1993] 3 S.C.R. 263 (the “GrantTrilogy”). [8] In Grant Justice Sopinka stated that by excising improperly obtained facts from an ITO the Court had determined that peaceofficers cannot benefit from their own illegal acts by including in ITO’s facts which were obtained through unconstitutionally permittedactions. [9] The Crown has filed, as part of this Voir Dire, a copy of the ITO with the Crown’s proposed redactions (Exhibit A – Voir Dire#3). The Defence accepts that these redactions are appropriate given the rulings. In addition, they submit that there are a few more thatneed to be made.

Once the appropriate redactions are made, that edited ITO becomes the “record” upon which the reviewing judgedetermines the validity of the warrant. [10] The Crown concedes that the ITO does not provide a sufficient basis for the issuance of a search warrant in relation to 606.

Inaddition, the Defence does not seek to contest the facial validity of the warrant in relation to the Ford Explorer. [11] The Defence continues to assert, however, that the remaining three searches should be found unlawful once an appropriatereview is undertaken of the remaining grounds contained in the ITO. [12] Warrant review begins from a premise of presumed validity. It follows from this presumption of validity that the onus ofdemonstrating invalidity falls on the party who asserts it. (See R. v. Sadikov, 2014 ONCA 72 at par. 83).

Therefore, the onus is on Mr.Yadav to establish that those searches violated his rights under

Section 8 of the Charter. Facial Validity Review [13] On a facial-validity review, there is no “amplified” (i.e., enlarged) record. Rather, a trial judge determines the matter solely onthe basis of the information contained in the ITO. Based on that information, the judge’s task is to determine whether a justice of thepeace could (not would) have issued the warrant: R. v. Wilson, 2011 BCCA 252 at para. 39; R. v. Araujo, 2000 SCC 65. [14] Justice LeBel in Quebec (Attorney General) v.

Laroche, 2002 SCC 72 , [2002] 3 S.C.R. 708 (at para. 64) stated: “If thereviewing judge determines that at least one such piece of evidence existed and could reasonably have been believed, to justify theapplication for the warrant, the judge’s examination should stop there”. [15] The required basis for the issuance of a search warrant was set out by the Supreme Court of Canada in Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, where they held that suspicion is not a sufficient basis for the issuing of a search warrant.Such a standard would fail to meet the minimum constitutional standards for the issuing of search warrants that are consistent withsection 8 of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982. The Court held that these minimum constitutional

standards require that the evidence presented to a judicial officer in support of the application for a search warrant be under oath and be based on "credibly-based probability." [ 16 ] In R. v.

Campbell , 2011 SCC 32 , the Supreme Court of Canada indicated that in order “to comply with s. 8 of the Charter , prior to conducting a search the police must provide ‘reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search.’” [ 17 ] In addition to the directions from the Supreme Court of Canada with respect to the constitutional requirements of a warranted search there are the requirements of

Section 11 of the Controlled Drugs and Substances Act as this warrant was sought under that section. [ 18 ] That

section reads: 11

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to a contravention of this Act, under

section 354 [ possession of stolen property ] or 462.31 [ money laundering ] of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it. [ 19 ] Another legal principle relied upon by the Defence is the inability of simple narrative and bald conclusory statements made in an ITO to support the issuance of a warrant. The court in R. v. Haire , 2021 BCSC 1308 cautioned against conflating these two principles.

Even though that case involved a sub-facial challenge of the search warrant there the comments of Justice MacNaughton at par. 52-53 are helpful reminders on how to weigh the information that is before a reviewing judge. The Court states there: 52 The rule against narrative requires that the affiant properly source the information set out in the ITO. As explained in Criminal Code ( Re ), [1997] O.J. No. 4393 (Gen. Div.) at para. 8 : 8 ... It is insufficient for an applicant to simply state conclusions, opinions and facts without providing the court the source or origin for [those] conclusions, opinions or facts.

The credibility and reliability of the assertions are inextricably linked to the investigative resources themselves. 53 The rule against conclusory statements requires that an affiant not simply recite conclusory statements on matters material to the application for a warrant without setting the factual underpinning that would allow the authorizing justice to evaluate the factual basis for the conclusions: R. v. Belanic , 2019 BCSC 1411 at para. 14 . [ 20 ] Justice Schultes discussed what to do with this kind of information should it be contained in an ITO. In R. v. Biring [2022] B.C.J.

No. 1731 he stated at par. 59: 59 I think it is most accurate to say that unsupported conclusory statements in an ITO are incapable of contributing to the grounds for the warrant's issuance, rather than that they must be formally excised like other kinds of improperly-generated content. That was the approach taken in the frequently-cited decisions of this Court of R. v. Sunner , 2017 BCSC 2445 and R. v. Belanic , 2019 BCSC 1411 . [ 21 ] I also have the benefit of written submissions on this application from both the Crown and the Defence which will become part of the Court file.

I have considered these submissions in addition to the oral arguments that were made. [ 22 ] In short, Mr. Yadav submits that each of the Search Warrants for the three locations in question is facially invalid after the proposed excisions in the ITO are applied and after applying the law with respect to a facial validity review set out above. [ 23 ] The Crown submits that the remaining information must be examined as a whole. One of the points made was that the facts presented in the ITO must be seen through the lens of an experienced and knowledgeable affiant, here Cst. Damiani.

Some of the events detailed in the ITO may “baffle a layperson”. The Crown submits that, when viewed through the lens of Cst. Damiani’s experience, the remaining information in the ITO support the grounds for believing that fentanyl production was occurring and that evidence would be found in the places to be searched (See R. v. Jacobsen , [2022] O.J. No. 1527 at par. 22 ; R. v. To , [1998] B.C.J. No. 1323 at par. 11 ). [ 24 ] The Defence sought certain excisions in addition to the ones proposed by the Crown in the ITO.

Those redactions largely dealt with the 606 search site which the Crown has already conceded was searched without a lawful warrant. I propose to address these proposed excisions later in these reasons. [ 25 ] Additionally, the Crown has suggested that where the affiant had written the address on Nelson as 2538 he clearly meant to write 6538. I find that that is a reasonable submission and that the issuing justice could have simply treated that as a typographical error given the balance of the information present in the ITO.

Could the Justice have Issued the Warrants on the Redacted ITO? [ 26 ] In paragraph 3 of the ITO the affiant writes: I have not included each and every fact known to myself concerning this investigation. I have, however, provided statements of the

relevant facts and circumstances that I believe are necessary to establish reasonable suspicion support of this Information to Obtain. [ 27 ] This statement by the affiant stands out as it is precisely what the SCC in Hunter and Southam (above) cautions against. The Supreme Court of Canada make it clear that suspicion will not be an appropriate basis upon which to issue a search warrant. [ 28 ] Defence suggests that the Investigational

Summary commencing on page 7 of the ITO would normally contain the highlights of a particular investigation. That is a reasonable submission. That

summary refers to redacted information received from a Confidential Informer. All of that received information is redacted and amounts to no supporting information at all. [ 29 ] The

summary also refers to surveillance on Mr. Yadav over the course of about nine months. The affiant concedes that there was no criminal activity observed during this time. [ 30 ] The

summary also notes that between June 19 th , 2018 and June 29 th , 2018 Mr. Yadav was observed attending the MET2 (a large apartment building) while driving the Ford Explorer. [ 31 ] The following sentence is sought to be excised by the Defence, “Yadav was later observed carrying black garbage bags with another male later identified as Jaroslaw ORZEL and Trevor MENDHAM that was later analysed to contain traces of fentanyl and fentanyl derivatives”.

I agree that the only inference to draw from this particular paragraph is that these observations refer to observations initially made inside the MET2 and it should be excised pursuant to my previous rulings. The police later make observations related to the suspects attendance at some garbage bins but this sentence is clearly not referring to that observation if one is to properly place it into the context of other redacted information. [ 32 ] It is important to note that the Confidential Informer (CI) information is heavily redacted. The information from CI “A” amounts to nothing.

At best it led the police to make inquiries about the licensing and registration of the ML63 in question here. It was noted that Mr. Yadav was the primary operator of this vehicle. [ 33 ] The details of the investigation commence on page 15 of the ITO. From page 15-19 the affiant sets out the surveillance activity in relation to Mr. Yadav from September 24, 2017 to June 19 th , 2018. No suspicious activity is observed during this time. [ 34 ] Page 20 details the observations made on June 20 th , 2018. Here they see Mr.

Yadav drive the Explorer from his reasonably suspected residence on 11 th Avenue in Burnaby to Abbotsford to pick up Mr. Mendham (an associate). They stop at an address on Broadway Avenue in Port Coquitlam and then they go to the address at 1647 Broadway and see Mr. Yadav unlock a door at Unit 109 there. Mendham was carrying a white plastic bag. [ 35 ] Then they observe the Explorer drive to the MET2 apartment building and enter the underground parking there. [ 36 ] They later (6:30 p.m.) observe Mr. Yadav speak to Mr. Orzel (another associate). Mr.

Orzel is observed obtaining a large black garbage bag from the rear passenger side of a white Mercedes. They both then enter the front entrance of the MET2. [ 37 ] Mr. Yadav is observed driving the Explorer again. He exits the residence at 11 th Avenue at 8:00 p.m. and goes to a 7-11. He exits with a bag of grocery items. [ 38 ] Surveillance is maintained on the Explorer. At 10:08 pm Mr. Yadav and Mr. Orzel exit the front doors of the MET2 and walk to Orzel’s white Mercedes in the parking lot of Bonsor Park. Mr. Orzel drives away with Mr. Mr. Yadav as a passenger.

At 10:13 p.m. they go to a 7-11 to make a purchase. Surveillance was lost. At 10:25 p.m. they see Orzel’s Mercedes parked near the MET2. [ 39 ] At 11:10 p.m. they observe Mr. Yadav enter a 7-11 on Kingsway Avenue in Burnaby. He apparently made a purchase and departed. [ 40 ] At 12:30 a.m. on June 21 st the Explorer departed the underground parking at the MET2. At 12:32 a.m. the Explorer stopped next to Orzel’s Mercedes and Orzel got out of the Explorer and entered the Mercedes. They drove in tandem to a laneway in Burnaby next to an open garbage dumpster. [ 41 ] At 12:41 a.m. visual continuity was broken.

At 12:50 a.m. Cpl. Dykeman located the dumpster where the Explorer and the Mercedes were stopped. Cpl. Dykeman found six large garbage bags inside the bin. [ 42 ] In paragraph 70(kk), and from the above observations, the affiant makes a statement of belief in brackets. He had earlier (in paragraph 32) attested that he has added comments to “explain or link information” and to state his belief. Where these comments and beliefs are added, the affiant defined them with square brackets. [ 43 ] The statement is “[I believe the six large garbage bags were in the rear of the Explorer and were dumped in the bin].

The balance of that paragraph is redacted. [ 44 ] That belief, in light of the redactions that have necessarily been made, could not have been based upon the police observations. However, there was a video obtained of this part of the investigation. I will comment on that later in these reasons. [ 45 ] On June 22, 2018, in the vicinity of the 11 th Avenue address, the police observed Mr. Yadav walk up to the rear of the Explorer and open the rear hatch at 4:02 p.m. He appeared to be looking through the windows up and down the street.

Again in brackets, the affiant notes “[I believe YADAV was attempting to check for persons who may have followed him to the Explorer and/or for persons who may have been watching to see who came back to the vehicle]”. [ 46 ] In light of the redactions, this “belief” was entitled to little if any weight. In fact, the probative value of this observation is never explained or placed into the context of any experience or knowledge that the affiant may have possessed.

[ 47 ] Mr. Yadav drove to a 7-11 and exited carrying a long receipt. A short time later, at 4:17 p.m. Mr. Yadav is observed driving the Explorer into the parkade at the MET2. [ 48 ] At 5:54 p.m. the police observe Mr. Yadav carry two garbage bags out onto the outside patio of an apartment at the MET2. Later, he was observed carrying four more garbage bags out onto the patio over the next 30 minutes. [ 49 ] Mr. Yadav is later seen going back to the residence on 11 th Avenue.

At 7:38 p.m. he is seen getting back into the Explorer and departing that residence. [ 50 ] At 7:42 p.m. he is seen driving slowly and appeared to be looking at vehicles passing him. The affiant again notes in brackets that he was of the belief that Mr. Yadav was intentionally attempting to “see who was driving the vehicles around him”. Again, the probative value of this observation is never explained or placed into the context of any experience or knowledge that the affiant may have possessed. These observations of Mr.

Yadav “looking around him” cannot be afforded much weight given the failure of the affiant to tie his beliefs to any suspected criminality. [ 51 ] On June 22 nd , 2019 the affiant viewed a video of the alleyway where Mr. Yadav and the others were observed on June 20 th , 2018. The video reveals that around 12:39 a.m. the Explorer and Mr. Orzel’s Mercedes pull up near a blue garbage bin. Mr. Yadav and Mr. Mendham are observed unloading black garbage bags from the rear of the Explorer into the blue bin. Both vehicle leave the view of the camera a short time later.

At 12:46 a.m. police stop at the same bin and seized, what are believed to be the same black bags that were placed in the bin by Mr. Yadav and Mr. Mendham. This belief was one that reasonably could have been accepted as accurate by the issuing justice. [ 52 ] On June 26 th , 2018 the police observe Mr. Yadav drive the Explorer into the underground parkade of the MET2 at 2:09 p.m.. At 2:22 p.m. the Explorer leaves the parkade with Mendham and Yadav inside. [ 53 ] On June 27 th , 2018 the police identify the suite at #109-1647 Broadway Street in Port Coquitlam as a place called Origami Gymnastics.

The affiant believed that on June 20 th when Mr. Yadav was observed there that he used a key to enter a locked door at that address and that the locked doors possibly lead to a storage space. There is very little to support this belief. It amounts to pure speculation. [ 54 ] On June 28 th , 2018 the police receive a report from an RCMP expert on clandestine labs. He relays that, in his opinion, the contents of the garbage bags retrieved from the garbage bin were inconsistent with household trash and consistent with items that would be found in a clandestine drug lab.

No basis for this opinion is set out and no description was given of the items that the expert analyzed to form his opinion. It is a bald conclusory statement. However, that paragraph, 78, and the following paragraph 79 could have been read in conjunction and therefore some weight certainly could have been attached to the opinion set out there. [ 55 ] Par. 79 sets out that the bags contained paper towels and a paper filter with fentanyl or derivatives on them. [ 56 ] I accept the argument of the Defence that in paragraph 81, in addition to the accepted redactions, subparagraphs (

d) and (

e) should be excised. They directly relate to the observations of the police that were made in violation of his rights under

Section 8 of the Charter as ruled earlier. [ 57 ] On June 29 th , 2018 Mr. Yadav drove the Explorer to the MET2. [ 58 ] He was arrested there. [ 59 ] On page 35 of the ITO the affiant sets out the “Reasonable Grounds to Believe”. [ 60 ] He relies heavily on the findings with respect to the discarded black garbage bags.

These findings led the affiant to believe that there was a clandestine fentanyl production lab at the MET2 building. [ 61 ] However, the issue here is whether there remains a basis in the ITO for the issuance of search warrants of other locations, specifically the unit on Broadway, the 11 th Avenue address and the ML63. [ 62 ] Generally, there are five main questions which an issuing justice must ensure that an information to obtain a search warrant provides grounds to answer, before a search warrant can be is issued: 1. that the items specified exist; 2. that the items specified will be found in the place to be searched; 3. that the offence alleged has been, or will be, (depending on the type of search warrant being sought) committed; 4. that the items specified will afford evidence of the offence alleged; and 5. that the place to be searched is the location where the items are located. (Also see par. 18 above for the requirements contained in

Section 11 of the CDSA ). Commercial Unit at #109-1647 Broadway Street, Port Coquitlam [ 63 ] At paragraphs 85-86 of the ITO the affiant summarizes the basis for seeking a warrant in relation to the Broadway address.

[ 64 ] The conclusion there is that because Mr. Yadav and Mr. Mendham visited that location and went inside a locked door at this address and that Mr. Mendham was seen with a white plastic bag that there is a basis to believe that evidence supporting the stated drug offences would be found there. [ 65 ] There is no basis set out for why the affiant believes that this one white plastic bag has anything to do with a clandestine drug lab. In paragraph 86(

a) the affiant sets out all the possible items they would be looking for at the Broadway location in relation to a suspected drug lab located in an apartment somewhere inside the MET2 building. [ 66 ] In paragraph 6 of the ITO the affiant asserts that there are grounds to believe that a production offence is taking place at the Broadway address. There is simply no basis, on the totality of the circumstances and information remaining in this ITO to sustain this belief. The request to search this location amounts to a classic “fishing expedition”.

There is a hope that evidence may be found here but there is no sufficient grounds to believe that. There must be facts given on oath from which the justice could have judicially satisfied herself that there were rational grounds for the requisite belief. [ 67 ] The warrant for the Broadway address must be quashed. The residence and garage at 7764-11 th Avenue, Burnaby [ 68 ] The affiant summarized the grounds to search this residence and garage at paragraphs 87-88 of the ITO. [ 69 ] There was a reasonable belief that this address was where Mr. Yadav kept his primary residence. However, the police surveilled Mr.

Yadav off and on for nine months and saw nothing suspicious in relation to that residence whatsoever. He was never seen transporting any bags or anything suspicious into or out of this location. Additionally, there was no confidential informant information to rely upon to support the belief stated. [ 70 ] On a careful analysis of the remaining information in support of the warrant for the Burnaby address it is clear that the affiant could establish no more than a mere suspicion that they might find some evidence at this location.

Looking at the remaining information in its totality, the affiant did not demonstrate a credibly based probability there would be such evidence. Rather, once again, this has to be characterized as a fishing expedition. [ 71 ] This is despite the affiant’s reliance on a belief that persons engaged in drug production and other drug related activities will frequently store things related to the offence at their residence. [ 72 ] I am fully cognizant of the presumptive validity of a warrant and the standard of review here in reviewing this redacted ITO. It has been described as a “limited one”.

I have set out the test above. There is a material difference in the tasks of the issuing justice and the reviewing court. [ 73 ] In R. v.

Mackey , 2020 ONCA 466 , it was held that a “judge issuing a warrant at first instance must decide whether there are reasonable grounds to believe the statutory preconditions for issuance of the warrant are met… By contrast, a reviewing judge is not to decide whether he or she would have issued the warrant but, rather, is to determine whether the ITO, as excised and amplified, provides sufficient credible and reliable evidence upon which the issuing judge could be satisfied that there were reasonable grounds to issue the warrant” (at paragraphs 51 and 54). [ 74 ] I also accept that the inability to assess the credibility of the informant may be compensated for by the quality of the information as well as by any corroborating or confirmatory evidence. [ 75 ] However, in this case, any material information that may have come from the informant is redacted.

For instance, if a reliable informant had stated that the sought after items were located in this residence then the other information remaining could have been deemed consistent with that foundational support. Without some other kind of support for the affiant’s belief here it cannot be found that an issuing justice could have issued a CDSA search warrant for the 11 th Street address. The White Mercedes – ML63 [ 76 ] This vehicle was registered to Ambsrosia Consulting Corporation. The primary driver, according to the registration, was Mr. Yadav.

He was seen during the long surveillance period (September 2017 to June 28 th , 2018) to be driving this vehicle from time to time. [ 77 ] The

summary of the affiant’s grounds to search this vehicle are at paragraphs 89-90 of the ITO. [ 78 ] Once again, it is simply Mr. Yadav’s association to this particular vehicle that is the foundation upon which the affiant seeks a search warrant in relation to it. [ 79 ] Unlike the Explorer, there is little more observed in relation to this vehicle other that its use by the accused. Bald, conclusory statements are made that persons engaged in drug production activity will use vehicles to store items related to that activity. However, there was significant surveillance of Mr.

Yadav and his use of this vehicle and at no time do the police see any kind of suspicious activity in relation to this vehicle. There are no suspicious bags, boxes or other items seen being moved into and out of this vehicle. The belief that this vehicle will afford evidence amounts to pure speculation after a full review of the edited ITO. [ 80 ] I have been careful, of course, to consider the whole of the ITO and not simply the underlying summaries of the investigation referred to in the ITO under the specific locations to be searched.

The requirement to consider the totality of the circumstances means that I cannot simply examine each aspect of the grounds in isolation. Rather, I must consider whether, in light of all the grounds taken together or viewed cumulatively, the issuing justice could have granted the warrant . ( See R. v. Whitaker , 2008 BCCA 174 at para. 41 ). However, the sufficiency of the remaining record suffers in that it could not support a credibly-based probability that evidence relating to the drug offences being investigated would be found at the locations sought to be searched.

[ 81 ] As Justice Schultes found in Biring (above), unsupported conclusory statements are incapable of contributing to the grounds for the issuance of a search warrant. Conclusion [ 82 ] The application to quash the search warrants for the Broadway, 11 th Avenue and Mercedes ML63 vehicle is granted. The ITO, on its edited face, was not capable of satisfying the issuing justice that there was a sufficient link or nexus between the offences under investigation and the locations in question. _________________________________ The Honourable Judge David St. Pierre Provincial Court of British Columbia