R v Isaac, 2023 MBPC 73

CITATION: R v Isaac, 2023 MBPC 73 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Kayleigh Robertson and Kate Henley ) ) for the Crown - and – ) ) ) Darnel Isaac ) ) Franco Aiello and Barry Sinder for the Accused ) ) ) Reasons for Decision ) Delivered: December 18, 2023 Cornick, P.J. Introduction [ 1 ] On November 4, 2021, Cst. Stevenson of the Winnipeg Police Service received information from a confidential informant (CI) that the accused, Darnel Isaac, was actively trafficking methamphetamine. Based on the tip Constables Stevenson and Hermann arrested and searched Mr.

Isaac incident to that arrest. They seized methamphetamine and Canadian currency. Mr. Isaac was charged with possession for the purpose of trafficking and possession of proceeds of crime under $5,000. [ 2 ] Many elements of the offence are not in dispute. The time, date, jurisdiction, identity of the accused, and continuity of exhibits were all admitted at the outset of proceedings. The nature of the substance in question is methamphetamine, and the quantity is 891.32 grams. At the conclusion of the voir dire, counsel for Mr.

Isaac indicated that the outcome of these proceedings would be determinative of the trial. Facts [ 3 ] On November 4, 2021 Cst. Stevenson received the following tip from a CI: • Farley, white male, heavy set, in his 30s is selling meth • He is going to a house on Alexander near a convenience store and will be there in 5-10 minutes • Farley is in a grey taxi • Farley has a large amount of cash on him [ 4 ] Cst. Stevenson and Cst. Hermann testified that they knew “Farley” was Darnel Isaac’s street name. They had two prior dealings with him in the last year.

They transported him to the police station on one occasion and on another, they arrested him for unrelated matters. The physical description received was consistent with Mr. Isaac’s general appearance. Cst. Stevenson testified that as a result, he was confident the individual the CI was talking about was Darnel Isaac. [ 5 ] Cst. Stevenson testified that the CI is registered and proven. Cst. Stevenson said that registered means that the CI fills out paperwork and signs a form that outlines the “do’s and don’ts” of being an informant. He indicated that he worked with the CI for over 2 years.

The CI does not have convictions for perjury or public mischief, and typically requests monetary compensation for tips. Tips from this CI had lead to arrests and seizures in the past. The CI had received monetary compensation in the past. [ 6 ] Upon receiving the tip, Cst. Stevenson and his partner Cst. Hermann headed to the area of Alexander Avenue and Isabel Street. The tip was received at 7:50 p.m. and at 7:55 p.m. Cst. Stevenson and Cst. Hermann observed a grey taxi making a westbound turn onto Alexander Avenue. [ 7 ] Cst. Hermann activated the emergency lights and conducted a traffic stop.

While following the taxi both Cst. Hermann and Cst. Stevenson testified that they observed a lone occupant in the rear passenger seat area. This person was making what appeared to the

officers to be frantic movements. The frantic movements continued until the officers reached the rear doors of the taxi. Both officerstestified that in their experience this was consistent with an individual attempting to conceal something. [8] Both officers testified that upon approaching the rear windows of the taxi, they recognized the male in the back as DarnelIsaac. Cst. Hermann approached the rear driver’s side of the taxi and recognized Mr. Isaac. Cst. Stevenson approached the rearpassenger-side door, and recognized the occupant as Mr. Isaac. He then opened the door and placed him under arrest. [9] Cst.

Hermann recalled that Mr. Isaac was wearing a hat and a medical mask, but that he was still able to recognize who hewas. Cst. Stevenson could not recall what Mr. Isaac was wearing, but he testified that the occupant of the taxi matched the physicaldescription given by the CI, and he recognized Mr. Isaac in any event. [10] After arresting Mr. Isaac, the taxi was searched and two loose dime bags of methamphetamine were located. A black satchelwas also located in the back of the taxi. It contained a large freezer bag of methamphetamine, Canadian currency and Mr. Isaac’sidentification. Mr.

Isaac was holding a cell phone at the time of his arrest. [11] Despite the officers being familiar with Mr. Isaac he was formally identified on the police computer system. At headquarters,Mr. Isaac was skin searched, but no additional items were found. Issues [12] Mr. Isaac was arrested without warrant and searched incident to this arrest.

The issue to be resolved is whether the arrest andsearch were compliant with sections 8 and 9 of the Charter of Rights and Freedoms. [13] Should this court conclude that a breach occurred the further issue to be resolved is whether the evidence in question—methamphetamine and money, ought to be excluded pursuant to section 24(2) of the Charter. The Law [14]

Section 9 of the Charter protects individuals from arbitrary detention and arrest. In order to effect a warrantless arrest thepolice must have reasonable and probable grounds to believe a person has committed or is about to commit an indictable offence. Thearresting officer must have subjectively reasonable grounds on which to base the arrest, and those grounds must also be reasonable froman objective point of view. (See R v. Storrey [1990] 1 S.C.R. 24, pp 250-251). [15]

Section 8 of the Charter protects individuals from unreasonable search and seizure. A warrantless search must be justified andreasonable in the circumstances. The Crown also bares the onus on a balance of probabilities that the search was conducted lawfully. If itwas conducted in a reasonable manner, a search incident to a lawful arrest is a reasonable search. [16] In concluding that they had reasonable and probable grounds to arrest Mr. Isaac the police relied on information received froma confidential informant (CI). The test for assessing CI information is found in R v.

Debot (SCC), [1989] 2 S.C.R. 1140at p 1168: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a"tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test.

Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknessesin one area may, to some extent, be compensated by strengths in the other two. [17] The “totality of the circumstances” must be considered including the degree of detail of the tip, the informer’s source ofknowledge, and indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. (See R v.Garofoli (SCC), [1990]2 S.C.R. 1421 p. 1457). Analysis [18] Mr.

Isaac’s arrest was based entirely on information received from a CI and the officers’ brief observations before the arrest.As such, the reasonableness of the arrest rests on whether the information was compelling, credible and corroborated. Was the tip compelling? [19] In determining whether the tip was compelling, the court must consider whether the tip was conclusory or without detail suchthat it cannot be distinguished from mere rumour or gossip. [20] Defence filed R v. Marcelin 2015 MBQB 98 and R v.

Desilva 2022 MBPC 51 in support of their argument that the tip Cst.Stevenson received was vague, and did not speak to the source of the CI’s knowledge. The court in Marcelin cited that description of theindividual selling drugs lacked details such as clothing, and that the source of the CI’s knowledge was lacking. [21] Similarly, in Desilva the court found that the lack of details about the source’s knowledge created weaknesses in thecompelling nature of the assertions made by the source. [22] Cst. Stevenson conceded that he did not know if the tip was first hand.

He explained that he often does not ask for thatinformation because he is not aware of where the CI is calling from, and who might be around them. [23] I find the fact that Desilva is a search warrant case to be a distinguishing feature given how the source information wasconveyed. The lack of details about whether the information is first hand or not was important because the information lacked details inother areas. A glaring example is that the source in that case did not state whether the drugs and cash would be located at the address

subject of the search warrant. The address was also vague, a building on Hargrave Street with no suite listed.

The court was mindful that details about a CI’s first hand knowledge can risk their identification, but because the court was dealing with an information to obtain, the police had the time, means and ability to provide such details in a “tear away” appendix. (See paras 20-26) [ 24 ] In Marcelin , the concern was that because the target’s description lacked detail the absence of the CI’s source for the information made the tip conclusory and the court was not able to discern whether it was mere gossip. (See paras 21-24) [ 25 ] In this case, the tip also provides a general physical description but it comes along with a specific street name-- “Farley”.

This particular individual would be in a grey taxi on Alexander Avenue in possession of methamphetamine and money. This was all going to take place within the next 5 to 10 minutes. The tip was detailed, it named a particular individual, it specified methamphetamine and cash as the contraband in question, it described the colour of the taxi, it named the street the taxi would be on, and most importantly, it described the events taking place in a window of mere minutes. That detail alone takes it out of the realm of gossip or coincidence.

The absence of detail about the source’s information in this case does not detract from the compelling nature of the tip. Therefore, I am satisfied that the tip was compelling. Was the tip credible? [ 26 ] I find that the CI’s information in this case was credible. The CI was described as registered—not only is this person known to police, but according to Cst. Stevenson engaged in a formal arrangement where documents are signed and parameters established. Further, Cst. Stevenson had worked with this CI for over two years wherein information provided lead to several arrests and seizures.

The CI had never been convicted of perjury or public mischief. I do not see a basis in law to treat the CI’s past performance and reliability as a neutral factor as argued by defence. To the contrary, Garofoli specifically lists past performance as a factor to take into consideration when assessing the CI’s reliability. I am satisfied the information provided was credible. [ 27 ] Defence argues that there was no corroboration of the tip received.

The investigation was lacking in that no surveillance was done and no efforts were made to investigate the ultimate destination of the taxi. [ 28 ] In Debot , the court stated that the police do not need to confirm every aspect of the tip received “as long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.” Higher levels of corroboration are going to be required where there are deficiencies with credibility or a lack of details within the tip. [ 29 ] In this case, the tip was both compelling and credible such that there was no need for extensive corroboration.

That being said, the sequence of events observed by the officers matched perfectly with the information received. The observations occurred within five minutes of the tip. The grey taxi turned onto Alexander Avenue. There was a lone occupant in the back of the cab, moving frantically about once police made their presence known by activating their lights. As the officers approached the taxi they immediately recognized Darnel Isaac—an individual also known to them as Farley. [ 30 ] Different investigations will allow for different levels of corroboration.

There are occasions such as this one where officers were operating on a time-based tip. The officers believed the CI information that there was methamphetamine and money with Mr. Isaac in the taxi. They could reasonably rely on that. Had Mr. Isaac been permitted to reach his ultimate destination and perhaps enter a residence as suggested by defence counsel the police would no longer have a sense of where or with whom the drugs and money would be.

While not extensive and quite brief, in these particular circumstances, this level of corroboration was sufficient. [ 31 ] Debot is clear that deficiencies in some areas can be compensated by strength in others, and Garofoli stresses the reliability of the tip is to be assessed in “the totality of circumstances”. There may have been some deficiencies such as Cst. Stevenson not knowing whether the CI information was first hand. However, every detail contained in the CI’s tip came to fruition in a window of mere minutes thus removing the possibility of coincidence.

As such, the officers had the requisite grounds to arrest Mr. Isaac. [ 32 ] I find that there was no breach of sections 8 and 9 of the Charter of Rights and Freedoms and the accused’s application to have the evidence excluded pursuant to section 24(2) of the Charter of Rights and Freedoms is dismissed . The police effected a lawful arrest based on reasonable and probable grounds and the search incident to that arrest was lawful. As such, the evidence seized by police on November 4, 2021 is admissible in the cause. Original signed by:” Cornick, P.J.