R. v. Bigl, 2020 MBPC 29

CITATION: R. v. Bigl , 2020 MBPC 29 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Sinclair, for the Crown ) ) - and - ) ) ) Jason Bigl ) ) J. Malloy, for the Accused ) ) Reasons for Decision ) Delivered: July 3, 2020 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] Mr. Bigl was arrested on the charge of possession of methamphetamine for the purpose of trafficking after the police obtained a search warrant and searched his home. He is seeking leave to cross-examine the police officer who swore the affidavit on which the warrant was granted.

He is also arguing that the affidavit contained insufficient grounds to grant the warrant so therefore the search should be deemed a warrantless search. For the reasons that follow I have dismissed both applications. FACTS [ 2 ] In March of 2019 members of the Winnipeg Police Service (WPS) Street Crimes Unit began investigating Mr. Bigl for trafficking in methamphetamine. The Street Crimes Unit specializes in drugs and gang investigations; it is now called the Gangs and Guns Unit. Constable Kimberley Schmeichel has been employed by the WPS since August 2013 and in March of 2019 was a member of the SCU.

By March 2019 she had taken a number of specialized courses including training in informant handling, search and seizure, and drug investigations. [ 3 ] On March 20, 2019, Constable Schmeichel received information about Mr. Bigl from one of her colleagues.

Her colleague had received the following information from one of his confidential informants (CI’s): − The location and description of a residence where “Jason” lived; − “Jason” is white, in his 20’s, has a large build, and short, dark hair; − “Jason” drives a blue Jeep Compass; − He traffics methamphetamine in Winnipeg; − He stores his methamphetamine at the residence then drives his Jeep to various locations with methamphetamine that he sells to customers. [ 4 ] As to the reliability of the CI, Constable Schmeichel learned the following: − The information provided by the CI in the past had led to arrests and seizures of illegal drugs; − The CI had a criminal record but had never been convicted of perjury or public mischief; − The CI was seeking a monetary reward for the information provided; − The CI used methamphetamine but was not addicted to it; and − The CI was entrenched in the criminal drug subculture of Winnipeg and was familiar with the cost of methamphetamine on the street, its appearance and its effects when consumed. [ 5 ] Police were able to confirm some of the CI’s information through computer checks:

− Jason Bigl was 27 years of age, 6’ tall and weighed 266 pounds and had short, dark hair. Police also checked his photo on itsNiche system which was consistent with this information. − Jason Bigl lived at 637 Airlies. − The description of 637 Airlies matched that given by the CI. [6] Officers in the Street Crimes Unit conducted surveillance on Mr. Bigl between March 21 and March 28, 2019. They observedhim drive to and from his residence carrying a black bag. He drove to several parking lots where he was met by a person each time.Officers observed a quick exchange of items between Mr.

Bigl and the various individuals. The officers could not see what the itemswere. On March 27, 2019, officers observed these types of exchanges between Mr. Bigl and unknown individuals at 6:35 p.m., 6:45p.m., 7:27 p.m. and 7:37 p.m. On March 27, 2019, the CI told police that within that past 72 hours: − They had seen Mr. Bigl in possession of a large quantity of methamphetamine. − Mr. Bigl was selling the methamphetamine. − Mr. Bigl was selling the methamphetamine from his blue Jeep Compass. − There were no license plates on the Jeep. [7] On March 28, 2019, police observed Mr.

Bigl leave 637 Airlies in the early evening with a black bag and drive the Jeep to twomore parking lots where similar transactions occurred. [8] On March 29, 2019, Constable Schmeichel drafted an Information to Obtain (ITO) a Search Warrant for 637 Airlies,containing the above information. JJP Harvey granted a search warrant for the residence based on the information contained in the ITO.Once they had received the search warrant, police went to 637 Airlies. [9] In the meantime, Mr. Bigl walked out of the house and drove away in his Jeep. Constable Schmeichel conducted a traffic stopon the Jeep and arrested Mr.

Bigl for possessing methamphetamine for the purpose of trafficking. Officers searched Mr. Bigl and theJeep and found the following: − $110 worth of Canadian currency on his person; − Two cell phones in the center cup tray; − $80 in Canadian currency on the passenger seat; − A cigarette pack containing 28 grams of methamphetamine in the glovebox; and − Additional empty cigarette packs throughout the Jeep. [10] Subsequent to the traffic stop and arrest of Mr. Bigl, police searched 637 Airlies.

They found the following in the basement ofthe house: − In a bedroom: • Large zip-lock plastic bags • Small zip-lock plastic bags • Health and insurance documents in Mr. Bigl’s name • Notebook with scoresheets − In the laundry room, behind the door between the laundry room and the bedroom: • A backpack containing three zip-lock bags, containing a total of 1,258 grams of methamphetamine.

REASONABLE GROUNDS FOR THE GRANTING OF A SEARCH WARRANT [11] Because the Defence is alleging that the ITO did not contain reasonable grounds for JJP Harvey to issue the warrant, it isnecessary to consider the legal test for issuance of a warrant and whether, based on the information before the justice, the warrant couldhave been issued. [12] The warrant was sought pursuant to

section 11 of the Controlled Drugs and Substances Act (CDSA). That

section provides thatthe JJP or judge must have reasonable grounds to believe that the place where police apply to search contains any of the following:illegal drugs, items containing illegal drugs, offence-related property or anything that will afford evidence of a crime under the CDSA orpossession of property obtained by crime or laundering proceeds of crime under the Criminal Code. [13] A warrant is presumed to be valid. (R. v. Pilbeam, 2018 MBCA 128 at para. 6) [14] The judge considering an application alleging a lack of reasonable grounds does not conduct a determination de novo or

substitute their opinion for that of the original judge or justice who issued the warrant. The standard of review is deferential (Pilbeam atpara. 12). The test is whether the reviewing judge concludes that there were sufficient grounds to issue the warrant, that is, whether theITO provides “any basis upon which the authorizing judge [or justice] could be satisfied that the relevant statutory preconditionsexisted.” (R. v. Pires; R. v. Lising, 2005 SCC 6; R. v.

Garofoli, (SCC), [1990] 2 SCR 1421, 1990 CanLII (SCC), at para.56.) [15] Where the ITO relies on information provided to police by a confidential informant, the consideration of whether the ITOcontains reasonable grounds such that the warrant could have been issued, requires that the reviewing judge consider an additional test: 1. Was information predicting the commission of an offence compelling? 2. Was the confidential informant credible? 3. Did the police corroborate information provided by the source prior to seeking to obtain the warrant? (R. v.

Debot, [1989] 2 SCR1140, (SCC), at 15; Pilbeam, at para. 14; R. v.

Rocha, 2012 ONCA 707 at para. 16) [16] The Supreme Court in Garofoli cautioned that this is not a “formulaic test” and in Debot that no one factor is determinative;weakness in one of these three areas can be compensated for by strength in the other two areas. (Pilbeam, at para. 14; Debot at 15) [17] Before considering whether there were sufficient grounds to grant the warrant, I will turn to the legal tests involved in the otherapplication by the Defence, that is, to cross-examine Constable Schmeichel on her affidavit sworn to obtain the warrant (the ITO).

LEAVE TO CROSS-EXAMINE CONSTABLE SCHMEICHEL [18] The Defence bears the onus to satisfy the Court that the cross-examination of Constable Schmeichel is necessary in order for hisclient to make full answer and defence. He must show that the cross-examination will elicit testimony that could discredit the existenceof the grounds for issuing the search warrant. [19] Leave to allow for cross-examination is not granted lightly. Chief Justice Joyal in R. v. Baldovi, 2016 MBQB 179 stated that thethreshold required to obtain leave to cross-examine is a difficult one. He also cited the Manitoba Court of Appeal in R. v.

Damianakos(1997), (MB CA), 126 Man.R. (2d) 81 at paragraph 23, where it was stated that leave “will not generally be granted.”(Baldovi at para. 11) APPLICATION OF THE TEST FOR LEAVE TO GRANT CROSS-EXAMINATION OF CONSTABLE SCHMEICHEL [20] In this case, the Defence seeks to cross-examine the police officer on three issues: 1) That her ITO does not contain information about the criminal record of the informant; 2) That the ITO does not state how many times the information provided by the informant has been reliable; and 3) That the ITO is vague. [21] It is important to remember that the purpose of the cross-examination is to elicit evidence that could undermine the basis for theaffidavit establishing reasonable grounds where those grounds are based in part on information from a confidential informant.

The areasof cross-examination must therefore tend to undermine one or more of the requirements for the sufficiency of information fromconfidential sources. Again, those requirements are: 1) Was information predicting the commission of an offence compelling? 2) Was the confidential informant credible? 3) Did the police corroborate information provided by the source prior to seeking to obtain the warrant? [22] The first two areas in which the Defence wishes to cross-examine concern the credibility of the confidential informant.

The ITOindicates that the informant had been cultivated by Constable Arnold, a veteran police officer of 15 years and a colleague of ConstableSchmeichel in the Street Crimes Unit. The CI had provided reliable information in the past, leading to arrests and seizures of illegaldrugs. The CI had been deeply entrenched in drug and criminal culture and wished to remain anonymous for fear of retaliation andpersonal injury.

Because of the CI’s entrenchment in the drug subculture, and purchase and use of methamphetamine, they were familiarwith how drugs are sold, what different quantities of drugs indicates and who sells drugs in Winnipeg. [23] The ITO disclosed that the CI had a criminal record, but that details of the record might lead to the CI’s identification, so thedetails were not included, except to state that the CI had never been convicted of perjury or public mischief.

Defence argued that this isinsufficient or misleading information about the CI’s record and is an improper and thinly-veiled attempt to try to portray the CI ascredible and honest. The Defence relied on the Ontario Court of Appeal decision of Rocha, where the Court found the evidence about theinformant’s credibility was weak. Defence points to the fact that in that case, the ITO had similarly noted the lack of convictions forperjury and public mischief. That is where the similarities end. In Rocha, there was no other information about whether the informanthad a criminal record of other charges.

Also, the ITO in Rocha is not clear in its language, so it is difficult to ascertain whether theinformant’s tips had led to drug seizures. [24] In this case, the ITO clearly states that the informant’s tips have led to arrests and seizures of illegal drugs. Unlike the ITO inRocha, the ITO in this case sets out the motivation for the provision of the information: the informant wishes to get paid. As Crowncounsel argued in court, an informant’s paycheque from the police is only as good as the information they provide to police. Ifinformation from informants proves to be false and misleading, they will not be paid.

[ 25 ] I cannot see how cross-examination of the officer about the informant’s criminal record would tend to undermine their credibility. Moreover, the ITO candidly states that providing details of the criminal record would lead to identification of the informant. The Court cannot elicit evidence that will lead to the identification of a confidential informant. Protection of a police informant’s identity is a fixed rule of law: The jurisprudence establishes that the identity of police informers is protected by a near-absolute privilege that overrides the Crown’s general duty of disclosure to the defence.

This privilege is subject neither to judicial discretion nor any balancing of competing interests (although qualified by an “innocence at stake” exception). ( R. v. Barros , 2011 SCC 51 at para. 1 ) [ 26 ] The second area that Defence wishes to cross-examine Constable Schmeichel about is how many times the informant has provided reliable information.

Whether the answer is one time or 100 times will not make any difference to the overall assessment of the relevant issue to be determined, given the compelling information the informant provided and police corroboration of the information they provided, both which lend support to their credibility. [ 27 ] Finally, the Defence wants to cross-examine the officer about the affidavit because it is “vague.” This is tantamount to cross- examining an affiant about the wording they have chosen to put in their ITO.

To allow cross-examination on the basis that an ITO is vague effectively allows a fishing expedition. [ 28 ] Leave to cross-examine Constable Schmeichel is denied. ANALYSIS OF WHETHER THE WARRANT WAS PROPERLY GRANTED [ 29 ] The legal requirements under

section 11 of the CDSA for granting a search warrant of a place, are that there are reasonable grounds to believe drugs or items containing drugs or crimes relating to drugs (including PPOBC and laundering proceeds) are in the place. The place at issue was Mr. Bigl’s home, or 637 Airlies Street. [ 30 ] The ITO in support of the warrant disclosed the following information relevant to

section 11: − That Jason Bigl lived at the address (through CI and police checks); − Jason Bigl dealt in methamphetamine (through CI); − He stored the methamphetamine in his home (through CI); − That the CI had seen Jason Bigl with a large quantity of methamphetamine within the past 72 hours; − That Jason Bigl’s method of trafficking was to deal methamphetamine out of the blue Jeep Compass he drove (through CI and police corroborations); − Police surveillance witnessed Jason Bigl leaving his home with a black bag and then making several stops to various parking lots around the city in an evening where he would meet very briefly with individuals and there would be an exchange of tangible items, the identification of which the police could not see.

Jason Bigl would be seen to put something in his hoodie pocket in the exchanges; − That Constable Schmeichel believed these to be drug transactions based on her knowledge and experience. [ 31 ] I am satisfied that if the information provided by the confidential informant can be relied on, this is sufficient information to form reasonable grounds that Jason Bigl possessed sufficient drugs in his home to sell to others, which he would do by leaving his house with drugs in a black bag and drive the Jeep to various customers around the city. [ 32 ] As for the credibility and reliability of the informant’s information: − Is it compelling? − Is it credible? − Was it corroborated by the police? [ 33 ] The information from the CI was compelling.

He provided a description of Mr. Bigl, and the address and description of the house where Mr. Bigl lived, had seen a significant amount of drugs in the middle of the surveillance period, identified the method that Mr. Bigl used to traffic drugs and the vehicle in which he conducted his drug transaction. [ 34 ] I have already dealt with the credibility issue. Although it is not the strongest indication that the informant’s information can be safely relied on, there are no concerns regarding his credibility. As indicated in Debot , the approach should be holistic in any event. [ 35 ] The information was compelling.

It was also corroborated by the police: the physical description of Mr. Bigl, his address and a description of the house, leaving his house with a black bag and then driving to brief meets with individuals in parking lots where something was exchanged between Mr. Bigl and the individuals. An experienced officer in the Street Crimes Unit believed that his actions were consistent with dealing methamphetamine out of his home by couriering the drugs around to customers in his Jeep. CONCLUSION [ 36 ] As I indicated above, leave to cross-examine Constable Schmeichel is denied.

I am also satisfied that there was sufficient information for JJP Harvey to grant the search warrant for 637 Airlies Street. The Defence motion to set aside the warrant is dismissed. “Original signed by:”

C.A. DEVINE, P.J.