Her Majesty the Queen - v. -, 2016 SKPC 129

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 129 Date: October 31, 2016 Information: 44666310, 44666600 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mark Michael Nowakowski Appearing: D. Curliss, Q.C . For the Crown N. Stooshinoff , Q.C. For the Accused DECISION ON VOIR DIRE M.M.

BANIAK , J [ 1 ] Mark Michael Nowakowski stands charged as follows on Information #44666310 that: 1) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did store an unsecured shotgun, thereby contravening s. 5(1) of the storage, display, transportation and handling of firearms by individuals regulations, contrary to s. 86(2) of the Criminal Code ; 2) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did store an unsecured shotgun, thereby

contravening s. 5(1) of the storage, display, transportation and handling of firearms by individuals regulations, contrary to s. 86(2) of the Criminal Code ; 3) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did store an unsecured shotgun, thereby contravening s. 5(1) of the storage, display, transportation and handling of firearms by individuals regulations, contrary to s. 86(2) of the Criminal Code ; 4) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did store an unsecured shotgun, thereby contravening s. 5(1) of the storage, display, transportation and handling of firearms by individuals regulations, contrary to s. 86(2) of the Criminal Code ; 5) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did without lawful excuse, store ammunition, to wit: shotgun ammunition, in a careless manner, contrary to s. 86(1) of the Criminal Code ; 6) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did possess a firearm, to wit: shotgun, not being the holder of a licence under which he may possess it, contrary to s. 91(1) of the Criminal Code ; 7) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did possess a firearm, to wit: shotgun, not being the holder of a licence under which he may possess it, contrary to s. 91(1) of the Criminal Code ; 8) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did possess a firearm, to wit: shotgun, not being the holder of a licence under which he may possess it, contrary to s. 91(1) of the Criminal Code ; 9) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did possess a firearm, to wit: rifle, not being the holder of a licence under which he may possess it, contrary to s. 91(1) of the Criminal Code ; 10) on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did possess a firearm, to wit: rifle, not being the holder of a licence under which he may possess it, contrary to s. 91(1) of the Criminal Code ; and on Information #44666600 that: on or about the 14 th day of January, A.D. 2015 at or near Warman, Saskatchewan did possess a controlled substance, to wit: cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act . [ 2 ] The accused brought an application for the following relief: 1.

For an order granting the Applicant leave to cross-examine Cameron Graves the Affiant of the Information to Obtain A Search Warrant sworn by him in support of the granting of the search warrant at issue, and to further examine him as to the sufficiency of grounds for his belief relied upon by the Justice of the Peace in the granting of the search warrant;

2. For an order quashing the search warrant granted pursuant to

section 487 of the Criminal Code on January 13, 2015 to search the residence of the Applicant located at 329 Lakeridge Drive, Warman, Saskatchewan. 3. For an order directing that all evidence seized or obtained from or arising from the search of the Applicant residence at 329 Lakeridge Drive, Warman, Saskatchewan on January 14, 2015 be excluded from the admissible evidence tendered by the Crown at the trial of this matter. 4. For an order declaring that the Applicant’s right to be secure from unreasonable search and seizure as guaranteed pursuant to

section 8 of the Canadian Charter of Rights and Freedoms have been infringed. 5.

For an order pursuant to R v Grant directing the exclusion of all evidence seized during the search of the Applicant’s residence. [ 3 ] Alternatively, in the event that the search warrant was upheld, the applicant submits that the search of the residence and the seizures that flowed from it ought to be excluded from evidence as the manner in which the warrant was carried out and the seizures effected violated the applicant’s s. 8 Charter rights. [ 4 ] A voir dire was held on August 17, 18 and September 14, 2016. [ 5 ] The Garifoli [1] application - wherein defence sought to cross-examine the affiant, Constable Cameron Graves, was eventually abandoned, and defence concentrated on the second leg of their application, namely that the warrant should be quashed because it was issued in the absence of reasonable grounds as per s. 487(1) of the Criminal Code , and therefore any evidence obtained pursuant to the search warrant violated the applicant’s s. 8 Charter rights and ought to be excluded pursuant to s. 24(2) of the Charter. [ 6 ] Defence postponed the argument with respect to the manner in which the search was conducted until the conclusion of the trial.

This decision, therefore, will focus on whether the search warrant ought to be quashed because it does not comply with s. 487(1) of the Code . [ 7 ] Section 487(1) reads as follows: Information for search warrant 487

(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place (

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

(c.1) any offence-related property, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (

d) to search the building, receptacle or place for any such thing and to seize it, and (

e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with

section 489.1. [ 8 ]

Section 488 of the Code states: Execution of search warrant 488 A warrant issued under

section 487 or 487.1 shall be executed by day, unless (

a) the justice is satisfied that there are reasonable grounds for it to be executed by night; (

b) the reasonable grounds are included in the information; and (

c) the warrant authorizes that it be executed by night. [ 9 ] Before examining the specific paragraphs of Constable Graves’ affidavit and subjecting them to the appropriate scrutiny, I believe it is worthwhile to examine the jurisprudence as it pertains to the grounds for issuance of search warrants in general. [ 10 ] Courts of all levels have held that, as a starting point, a search warrant is presumed to be valid. [ 11 ] Similarly, it is well established that a reviewing judge does not have the same function or standing as the issuing justice.

Put another way, just because a reviewing judge would not have issued a search warrant, does not mean that the authorizing justice issued it improperly - the reviewing judge should not substitute or impose his views for those of the issue justice. [2] [ 12 ] Further, minor errors, misstatements, or incomplete recitation of facts or detail which may have been known to the affiant are not always fatal to the issuance of the warrant - the totality of the evidence has to be considered and the context in which it was presented. [3] [ 13 ] Also, it is understood and accepted that affidavit evidence, by its very nature is generally of less weight and reliability than viva voce evidence which is subject to vigorous and probing cross-examination.

Information To Obtain (ITO) affidavits have the further fallibility of often being reliant on hearsay evidence. [ 14 ] Over the years, courts have addressed what constitutes grounds for the issuance of search warrants. Thirty years ago, the Supreme Court in R v Debot [4] held that the appropriate standard to establish reasonable grounds for a search warrant is one of “reasonable probability” and in making this determination the Court must have regard to the totality of the circumstances.

The Court in Debot also held that a suspect’s criminal record and reputation can be taken into account; that information provided by an informer, even

if hearsay may provide the necessary ground for granting a search warrant; and, where police rely on information from an informer it is not necessary for the police to confirm every detail in the informer’s tip. [ 15 ] This type of reasoning was also adopted by the Saskatchewan Court of Appeal in R v Turcotte [5] wherein the Court held that if the grounds stated for the application are current, and if there is a nexus between the stated grounds “for believing an offence has been committed and that evidence of the commission of the offence will be found on the premises to be searched” then that is a justifiable ground for issuance of a warrant.

Lack of clarity or shortage of detail is not tantamount to misrepresentation or falsification. [ 16 ] More recently, the Supreme Court in R v Morelli [6] sets out the test as follows: the question is not whether the remaining court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. [ 17 ] This test, at first glance, seems to be more exacting than that test in Debot .

However if one were to parse and dissect the meaning of “reasonable and probable grounds”, the test enunciated in Debot is not very different than the test in Morelli , even though Morelli was decided 26 years later and dealt with information shared in a computer. [ 18 ] The Oxford English Dictionary (Third Edition Revised) defines “reasonable” as 1) fair and sensible and 2) as much as is appropriate or fair in a particular situation. [ 19 ] “Probable” is defined as 1) the extent to which something is likely to happen or be the case, and 2) that something is more likely than not to occur.

In other words 50% plus 1 would likely satisfy this requirement. [ 20 ] Debot and Morelli agree that the totality of the evidence has to be considered as well as the context in which it was prosecuted. [ 21 ] This year, the issue of challenging a search warrant was considered by the Supreme Court in World Bank Group v Wallace . [7] In this case the Court held that a warrant could be challenged firstly, if it lacked the statutory pre-conditions for issuance and, secondly, if the affiant failed to accurately state what he knew or ought to have known (emphasis mine), which disclosure may have resulted in non-issuance of the warrant. [ 22 ] With respect to sub-facial challenges, the Court in World Bank held that what the affiant knew or ought to have known at the time the affidavit was sworn - particularly its accuracy - has to be tested against his reasonable belief at the time he swore the affidavit. [ 23 ] Therefore to challenge the issuance of a warrant the applicant must establish that the affiant deliberately swore to facts he knew were false, inaccurate or misleading; and, secondly that the affiant failed to disclose additional evidence that he knew or should have known about, [8] and which disclosure may have prevented the issuance of a warrant. [ 24 ] Realizing what the parameters, or minimal requirements are for a challenge, it is necessary next to examine what the applicant challenging the warrant must establish in order to be successful. [ 25 ] The Ontario Court of Appeal in R v Sadikov [9] examined the issue:

The Standard for Warrant Review [83] Warrant review begins from a premise of presumed validity: Wilson, at para. 63; and R v Campbell, 2010 ONCA 588, 261 CCC(3d) 1, at para. 45, aff’d 2011 SCC 32, [2011] 2 SCR 549. It follows from this presumption of validity that the onus of demonstratinginvalidity falls on the party who asserts it, in this case, Sadikov. [84] The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application.

The reviewing judge doesnot substitute his or her view for that of the issuing judge*: Garofoli, at p. 1452; R v Ebanks, 2009 ONCA 851, 97 OR (3d) 721, at para.20, leave to appeal to SCC refused, [2010] 1 SCR ix; and R v Morelli, 2010 SCC 8, [2010] 1 SCR 253, at para. 40. The standard iswhether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that anoffence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para.40.

Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which thewarrant could – not would – have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452. [26] Sadikov also explained the difference between a facial validity challenge and a sub-facial challenge and the role of thereviewing justice in each: [37] A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of theinformation disclosed there, the justice could have issued the warrant: R v Araujo, 2000 SCC 65, [2000] 2 SCR. 992, at para. 19.

Therecord examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: R v Wilson, 2011 BCCA 252, 272 CCC(3d) 269, at para. 39. [38] Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para. 50; andWilson, at para. 40. Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewingjudge to substitute his or her view for that of the authorizing judicial officer: Araujo, at para. 51; and R v Garofoli, (SCC), [1990] 2 SCR 1421, at p. 1452.

The task of the reviewing judge on a sub-facial challenge is to consider whether, on the recordbefore the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant: Araujo, at para. 51; andGarofoli, at p. 1452. The analysis is contextual: Araujo, at para. 54.

The reviewing judge should carefully consider whether sufficientreliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of whichthe enabling warrant could have issued: Araujo, at para. 52. [27] I believe it may also be worthwhile to consider what standard the issuing justice should be held to. [28] Section 487(1)(

a) of the Criminal Code reads as follows: Information for search warrant 487

(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in abuilding, receptacle or place (

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have beencommitted . . . (emphasis mine) [29] The Supreme Court addressed the “reasonable suspicion standard” in R v Chehil[10] and the companion case of R v McKenzie.[11]

[ 30 ] Karakatsanis J. (at para 26) quoted with approval Binnie J.’s definition of reasonable suspicion in Kang-Brown [12] at para 7 : [7] The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

Because sniffer dog searches are conducted without prior judicial authorization, the after the fact judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous.

Here, the police action was based on speculation. [ 31 ] She went on to state at para 28: [28] The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. . . . [ 32 ] She continued at para 32: [32] . . . factors that give rise to a reasonable suspicion may also support completely innocent explanations.

This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so. [ 33 ] And at para 34: [34] However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.

As was noted in United States v Sokolow , 490 U.S. 1 (1989), at p. 10 (citing Illinois v Gates , 462 U.S. 213 (1983), at p. 244, footnote 13), “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts”.

In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was in this case.

However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search. [ 34 ] At paragraph 35, Karakatsanis J. states that suspicion must be assessed against the totality of the circumstances: [35] Finally, the objective facts must be indicative of the possibility of criminal behaviour.

While I agree with the appellant’s submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act. [ 35 ] Lastly, I believe it may be useful to briefly address the distinction, as some courts have done, between police informers and police agents. R v Lising [13] made the distinction in the following manner: [37] An informant is someone who provides the police with information. . .

The informant has been referred to as a “tipster”. . . The informant is guaranteed confidentiality in exchange for providing the police with useful information. . . [38] An agent, on the other hand, is not protected by informer privilege. . . The agent is asked by the police to play an active role in the investigation. By entering the field and actively participating in the investigation, the agent has waived any privilege held as an

informant. . . . . . [41] Thus, the major distinctions between an informant and an agent are:

i) The informant provides information only, whereas the agent goes into the field and participates in the investigation at the direction of the police. ii) The identity of the informant is protected by a privilege which is almost absolute. It is subject only to the innocence at stake exception. The agent has no such protection and his or her identity must be revealed to the defence. iii) The informant will not testify in any proceedings.

The agent will often testify. iv) An informant may become an agent for the purpose of some investigations, but maintain informant privilege with respect to other investigations. [ 36 ] In this case, the main source of the affiant’s information came from the interviews conducted by the police with Mr. Noel Harder, which interviews were summarized and passed on to Constable Cameron Graves. [ 37 ] Mr. Harder entered into a written agreement with the police and was paid a stipend. He also received further consideration when criminal charges were stayed or withdrawn against him.

It is safe to assume that the police would provide protection to him and his family. [ 38 ] In return, Mr. Harder agreed to provide the police with information, gather intelligence, participate in investigations and testify in court. [ 39 ] By any measure, Mr. Harder was a police agent. Analysis of the Affiant ’s Affidavit [ 40 ] The affiant describes himself as a seven year member of the Saskatoon Police Service who, for the last five years was assigned to the Integrated Organized Crime North unit (IOCN).

More to the point, he stated that he was one of the officers assigned to investigate members of the Fallen Saints Motorcycle Club (Fallen Saints MC).

He claimed some familiarity with the Hell’s Angels Motorcycle Club (Hell’s Angels MC) and the Fallen Saints MC on the basis that he had some insight into how such clubs operate because he had attended presentations on the activities of the Outlaws Motorcycle Gangs. [ 41 ] He acknowledged that much of his information came from reports, statements and on notes made by others. [ 42 ] Constable Graves (para 2.2) believes that the Fallen Saints MC has a hierarchy similar to the Hell’s Angels MC, and that the former sometimes carries out tasks for the latter which are criminal in nature.

Nothing in this voir dire discredits this assertion. [ 43 ] Constable Graves stated (para. 2.5) that this search warrant was only one of several and was targeting the accused who was the President of the Fallen Saints MC.

[ 44 ] In paragraphs 3.1 and 3.2 the affiant sets out the historical context in which Noel Harder’s information was obtained as well as the fact that he was paid a substantial amount of money ($300,000.00) and that he had a criminal record. Further, Mr. Harder was not charged for 33 firearm related offences. [ 45 ] Clearly, there was no attempt to conceal the agent’s motivations, and, by contrast enhance his bona fides . The issuing justice was not left to speculate as to who Noel Harder was. [ 46 ] At paragraph 3.3, the affiant states that Mr.

Harder’s sworn statements of September 20, 21 and 26, 2014 formed the basis of the summaries he relied on to form his belief. The applicant has satisfied me that the sworn statement from September 20, 2014 was not disclosed to him. However, I am not satisfied that this information was deliberately withheld from the applicant; that such a statement even existed; or that if it did its contents differed materially from the sworn statements dated September 21 and September 26, 2014. [ 47 ] The affiant was not cross-examined and, on the face of paragraph 3.3 I cannot impute malice or even impropriety to him.

And while it is true that the paragraphs of the ITO leading up to paragraph 3.4 may make it appear as though the information came from a multiplicity of sources, if one reads the entire affidavit carefully what emerges is a narrative based largely on information provided by the police agent to his handlers with information that was then summarized. This information was collected over several months. I do not see any attempt to mislead. The affiant’s assertion that the ITO was based “in part” on information received from Mr. Harder is poorly worded and not likely to stand up to scrutiny.

But as the rest of the affidavit unfolds it becomes apparent that Mr. Harder was the major source of the information. I do not believe that the issuing justice would have been misled. [ 48 ] In paragraph 3.5 the affiant attempts to link, rather clumsily, the applicant’s involvement in a drug deal between the agent and one Justin Smith. Reading the paragraph in the ITO and reading the transcript of the conversation between the applicant and the agent I am not convinced that was the case. It is not even clear to me that the applicant initially even understood what the agent was talking about.

He certainly was not eager to grab the money offered him by the agent. At the end of paragraph 3.5 the agent makes reference to his problems with the Canada Revenue Agency and his desire to discuss this later. [ 49 ] This part of paragraph 3.5 is of no value. It lacks context or relevance. It lacks probative value and is prejudicial. It may have been an attempt to get the applicant to give the agent advice to act illegally in his dealings with the tax agency. [ 50 ] In my view the entire paragraph 3.5 lacks clarity and focus. It has the effect of being misleading.

It should be excised. [ 51 ] Another paragraph that the applicant takes issue with is 3.4(14), which deals with money laundering by the applicant. The main argument being that the agent took the position that it had occurred within “the last few months”, whereas if the chronology was examined it would have occurred at least several months before.

While that is true, it does not refute the basic premise that the agent characterized the applicant as a money launderer, which in the context of the entire affidavit is the more important fact. [ 52 ] Money laundering, like the loans for purchase of drugs, is not a transparent activity. It is designed to pass illegally obtained money through legitimate businesses to conceal its origins. The agent, and by extension the affiant, could not provide specifics to the police other than alerting them to the fact that the applicant was involved in this type of activity.

It remained for the police to further investigate the allegation to determine its efficacy. [ 53 ] Paragraphs 3.6 and 3.7 deal with the assault on Travis Mike. The applicant takes issue with the severity of the assault as well as the source of it, as the source for this is ascribed to Corporal Marciniuk’s

summary of his interview with the agent, and yet the

summary does not mention a broken jaw. [ 54 ] In fairness, the paragraph in question refers to a “fractured jaw” which injury is not as serious as a broken jaw. There is also a lack of medical information to support an allegation of aggravated assault. However, there is no dispute that an assault occurred.

[ 55 ] An assault may take many forms. It may be spontaneous; it may be planned; it may be a form of retribution - or it may be, as alleged here, a form of disciplinary action which a member of an organization has an option of subjecting himself to as punishment for breaking club rules. It might not, therefore, be an assault in the technical sense, but, rather, a “beat down”.

If this beating falls in the latter category, then it would be relevant insofar as confirming that the Fallen Saints MC was, at time, acting in a violent manner and that the applicant was the person issuing orders for that violence to take place. [ 56 ] The agent did not view this assault personally and his information as to the nature of the injuries sustained by the victim may have been overstated.

Although there is no evidence as to what the injuries were, what evidence there is suggests that Travis Mike did sustain some injuries such as bruising and perhaps a fractured jaw - which injury is generally less serious than a broken jaw.

The affiant did not allege a broken jaw. [ 57 ] On balance, therefore, even though this paragraph does not substantially strengthen the ITO, it is not so irrelevant or prejudicial as to warrant exclusion. [ 58 ] The applicant also argues that the affiant deliberately failed to disclose to the issuing justice the applicant’s lack of a criminal record or his legitimate business operations. [ 59 ] I do not see how that is deliberately misleading or prejudicial to the applicant. If no criminal record was presented the issuing justice could only proceed on the basis that the applicant had no criminal record.

A justice could not assume a criminal record existed. [ 60 ] The connecting thread of the applicant’s argument is that Constable Graves should not have relied on the summaries he referred to at face value. Rather, he should have consulted the transcripts of the interviews and statements the agent gave to his police handlers.

It was unreasonable for Constable Graves to proceed in the manner he did. [ 61 ] The issue to determine, therefore, is whether the applicant has established that it was unreasonable for the affiant to rely on the information he received from his sources. [ 62 ] Conversely, was it reasonable for the affiant to reasonably believe that the source of his information was credible? [ 63 ] The affiant was not cross-examined at the voir dire . I cannot impute improper motive(

s) to him. It is true that if he intentionally failed to disclose information based on personal knowledge, or compelling information from reliable sources that favoured the applicant that may have had the effect of misleading the issuing justice. I see no evidence of that. He readily acknowledged that Mr. Harder was the main source of his information - albeit derived from the summaries prepared by his police handler. He acknowledged at the outset that Mr.

Harder was paid money; that he had a criminal record and that his own criminal charges would not be prosecuted. [ 64 ] The ITO was in places a little weak on detail; it was at times a little confusing; it was in places inaccurate. As was readily admitted by the Crown there was room for improvement.

However, when the totality of the affidavit is considered it establishes the reasonable grounds upon which the justice could issue the search warrant. [ 65 ] More specifically, the grounds are founded on the following: - the information in the affidavit establishes a long-standing relationship between the agent and the applicant. The agent, therefore, is better positioned to know the applicant’s business and activities. He is no mere jail cell plant or a casual acquaintance. He knows the applicant well. They go way back - they have a history.

It is reasonable for Constable Graves to believe that the information provided by the agent has high currency value. Whether that information is provided by the agent directly to the affiant personally, or to other police officers who then pass it on to the affiant makes little difference;

- the affidavit states that the applicant was the president of a motorcycle club that is viewed highly or wrongly, by law enforcementauthorities, and by many members of society, as a criminal organization. Prior to becoming President of the Fallen Saints MC he was amember of the Terror Squad, an organization that is believed to be involved in criminal activities. The applicant still knows andassociates with members of that organization. The applicant’s profile no doubt influenced the affiant’s stated beliefs. That is notsurprising nor is it improper.

The Supreme Court has stated that a person’s reputation, associations and activities are all relevantconsiderations; - the agent stated that the applicant was involved in drug trafficking and money laundering. It would be reasonable to believe thatevidence of these types of activities would be found in his residence as opposed to his place of business or the club house. [66] It may be that in due course Mr. Harder, when subject to cross-examination in a court of law, may come up short in manyrespects. It may be that his credibility will be seriously shaken. It may be that his evidence will be of little value.

However, that is notsomething that would have been known to Mr.

Harder’s handlers, let alone the affiant. [67] I cannot subscribe to the argument that the affiant was intentionally misrepresenting facts in order to mislead the justice orthat he intentionally withheld information that would have seriously undermined his assertions and beliefs. [68] Having regard to the above, I find that the affiant’s affidavit, even after some if its portions were excised, establishedreasonable grounds upon which a justice could issue a warrant on the basis that an offence “has been or is suspected to have beencommitted” as per s. 487(1) of the Criminal Code. ___________________________ M.M.

Baniak, J [1] R v Garifoli (SCC), [1990] 2 SCR 1421 [2] R v Araujo, 2000 SCC 65; World Bank Group v Wallace, 2016 SCC 15, at paras 121- 124 [3] Araujo, supra, paras 52 - 54 [4] R v Debot, (1986) (ON CA), 30 CCC (3d) 207; (Ont CA), appeal to SCC denied [5] R v Turcotte, (1987), (SK CA), 39 CCC (3d) 193 [6] R v Morelli, 2010 SCC 8, [2010] 1 SCR 253 at para 40 [7] 2016 SCC 15 [8] R v Sipes, 2009 BCSC 612, para 41 [9] 2014 ONCA 72 * Sadikov, Garofoli, Morelli [10] 2013 SCC 49 [11] 2013 SCC 50

[12] 2008 SCC 18 ; [2008] 1 SCR 456 [13] 2010 BCCA 390 ; 337 CCC (3d) 91