R. v. Frederickson, 2019 BCPC 155

Citation: R. v. Frederickson 2019 BCPC 155 Date: 20190605 File No: 46164-5-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICKY FREDERICKSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR VOIR DIRE #3: APPLICATION TO SET ASIDE SEARCH WARRANT Counsel for the Crown: Angela Murray Counsel for the Defence Jason LeBlond Place of Hearing: Prince George , B.C. Date of Hearing: April 11, 2019 Date of Judgment: June 5, 2019 Introduction [ 1 ] This is an application by Mr.

Frederickson to exclude evidence seized by police during the warranted search of two residences on June 2, 2017, on the basis these searches were conducted in a manner which infringed his right under s. 8 of the Charter of Rights and Freedoms to be free from unreasonable search and seizure . Specifically, Mr. Frederickson challenges the warrants authorizing those searches.

[ 2 ] Mr. Frederickson is mid-trial on Informations 46164-5-C and 45154-1 which allege, collectively, 15 counts of drug trafficking and firearms related offences. While all charges arise from the same incident, charges under s. 117.01 of the Criminal Code have been laid on a separate Information (45154-1) as they inherently communicate the fact of Mr. Frederickson having been previously convicted of criminal offences. Notwithstanding, Mr. Frederickson has opted to have both charging documents tried together as they relate to a single investigation and event. [ 3 ] Mr.

Frederickson seeks to challenge two search warrants obtained by telecommunication on June 2, 2017, authorizing the search of two residences: 423B Gillett Street and 802 Johnson Street in Prince George, British Columbia. Both warrants authorize searches for cocaine, heroin, methamphetamine, cell phones, score sheets, currency, packaging materials and documents of residency. The two warrants were obtained based on a single Information to Obtain (“ITO”) sworn in support of both applications for each residence. Procedural Background [ 4 ] The method by which Mr.

Frederickson seeks to challenge the warrants is atypical, in that he effectively advances a sub-facial challenge but has not sought to cross-examine the affiant. Rather, he relies on alleged inconsistencies between evidence led in two other voir dires in this trial and the contents of the ITO. By agreement between Crown Counsel and the Defence, evidence led in voir dires #1 and #2 concerning constitutional challenges to Mr. Frederickson’s arrest and the warrantless exigent entry of his residence is incorporated into this voir dire. Cst.

Sweeney, the affiant, testified in voir dire #2 (incorporated by agreement into this voir dire ) but was not cross-examined or questioned about the ITO. Other evidence adduced in this voir dire includes the warrants and ITO, as well as the products of the searches of the two residences which Mr. Frederickson seeks to exclude. [ 5 ] The Crown submits that a Vukelich hearing would ordinarily be required as a pre-condition to embarking on a sub-facial warrant challenge notwithstanding there is no application to cross-examine the affiant.

However, the Crown concedes that in these circumstances the evidentiary and legal arguments of a Vukelich hearing would overlap significantly with a hearing on the merits, as such, the Crown agreed to proceed directly to the s. 8 challenge without a Vukelich hearing in the interests of judicial economy. [ 6 ] The ITO which forms the basis of the warrant challenge is vetted with respect to references to confidential informant information.

It was agreed that if the Court finds there was insufficient information to support the issuance of the warrant, the Crown may apply to have the Court reconsider the sufficiency of the unredacted version of the ITO as it was submitted to the issuing justice. Contents of the ITO [ 7 ] Following tips from confidential sources, members of the Prince George RCMP Street Crew conducted surveillance of Mr. Frederickson on May 31 and June 1, 2017. As a result of those observations Mr. Frederickson was arrested on June 1, 2017, and two CDSA warrants were obtained to search two residences. Police believed Mr.

Frederickson was in the process of moving from his residence at 423B Gillett Street to a new residence at 802 Johnson Street. [ 8 ] The warrant applications and ITO were prepared by Cst. Jared Sweeney on June 2, 2017. In the warrant applications, Cst. Sweeney states he has reasonable grounds to believe that offences relating to the trafficking of cocaine, heroin and methamphetamine have been committed. In his ITO, Cst.

Sweeny attested that he had reasonable grounds to believe such drugs, cell phones, score sheets, currency, packaging materials and residency documents would afford evidence of the offences and were located at 423B Gillett Street and 802 Johnson Street in Prince George. [ 9 ] In the ITO Cst. Sweeney attests to the following facts: • On May 31, 2017, he was told by another RCMP member that he received information from two sources of known reliability that “Rick” was selling drugs.

Informant “A” stated “Rick loads people with drugs.” Informant B stated “Rick sells speed, heroin and rock”; “Rick sells from his house and also delivers”, and “Rick may be loading Anna with side.” Informant B also stated Rick had just “got out of the pen”, was “busted for speed” the previous year, and lived next to the church at 5 th Avenue and Gillett. Cst. Sweeney explained “speed” and “side” were slang for methamphetamine, “rock” was slang for crack cocaine; • On June 1, 2017, Cst.

Sweeney spoke to an RCMP member who advised that another reliable confidential source, Informant C, disclosed that “Rick is selling drugs” and “Rick keeps drugs in his backpack.” Informant C identified Mr. Frederickson from a CABS photo; • On May 31, 2017, Cst. Sweeney conducted a driver’s license query which identified Mr. Frederickson’s address to be 423B Gillett Street in Prince George. PRIME Records identified that same address. He believed the letter “B” to signify this was a basement suite. There were no historical reports of drug related activity associated to that address; and • Cst.

Sweeney conducted a Criminal Records check which disclosed Mr. Frederickson had thirty-two prior convictions, of which five were drug related. In 2016, he was arrested for parole violation and found in possession of 99 grams of methamphetamine, 20 grams of heroin, packaging material, two scales and a large amount of cash. That same year he was subject to a vehicle stop in which a backpack was located containing 10.29 grams of methamphetamine, a scale, pipe and two propane torches, although no charges were forwarded in connection with that stop. [ 10 ] In the ITO, Cst.

Sweeney states that police started conducting surveillance of Mr. Frederickson on May 31, 2017. Cst. Sweeney reviewed the surveillance report prepared by Cst. Marc Cloutier and learned the following: • At 6:00 p.m., a Blue GMC Jimmy and Grey GMC Yukon were parked at the 423 Gillett Street residence. At 6:35 p.m., two unidentified persons left in the Jimmy and that vehicle returned at 6:45 p.m.; • At 6:37 p.m., a male carrying a child on a bicycle attended the basement unit. At 6:47 p.m., a woman was led into the basement unit.

At 6:55 p.m., a Taxi dropped off a female with two children and was welcomed inside the basement unit by another

female. At 7:03 p.m., a female left the basement unit; • At 7:07 p.m., Mr. Frederickson left the residence in a GMC Yukon with an unidentified female passenger; • At 7:11 p.m., Mr. Frederickson parked in front of the London Drugs store. His female passenger got out and Andrew Sitter [sic] got into the passenger seat, then got out at 7:13. Cst. Cloutier confirmed this individual to be Andrew Setter, a known drug user. The vehicle then proceeded driving downtown; • At 7:37 p.m., Mr. Frederickson and the female went back into the basement suite at 423B Gillett. Mr.

Frederickson came back out and left at 7:39 p.m.; • At 7:44 p.m., Mr. Frederickson went to an apartment building at 3806 5 th Avenue carrying a “man purse” and was buzzed inside; • At 8:22 p.m., Mr. Frederickson and an unidentified female went into the Yukon with Mr. Frederickson in the driver’s seat. At 8:23 another unidentified female attended the driver’s side of the Yukon. She and Mr. Frederickson rummaged through bags, he got out of the vehicle and the female left. At 8:24 Mr. Frederickson got back into the Yukon.

The unidentified female who had left returned shortly and left on foot again; • At 8:26 p.m., Mr. Frederickson and an unidentified female drove away; • At 8:38 p.m . , Mr. Frederickson went to an apartment at 2505 Oak Street and knocked on the barred window. At 8:54 p.m., Mr. Frederickson left 2505 Oak Street. He was still carrying a bag as he walked back to the Yukon.

This is known to be the residence of Rocky Herron who has a documented drug history ; • The vehicle was seen parked in front of Value Village at 9:32 p.m., but surveillance members were unable to locate the vehicle between from 9:35 p.m. to 9:45 p.m.; • At 9:45 p.m., the Yukon was parked in the driveway of 423 Gillett Street. At 9:56 p.m., a passenger was observed in the vehicle; • At 10:01 p.m., the vehicle stopped at the Husky gas station on Central Street West. Mr. Frederickson and a female passenger went inside; • At 10:09 p.m., the vehicle parked at 3806 5 th Avenue.

At 10:10 p.m., a female opened the passenger side door and Mr. Frederickson was seen looking for something in the back of the vehicle. At 10:13 p.m., an unidentified female with a white shirt left the Yukon and walked to the apartment; • At 10:20 p.m., Mr. Frederickson went into 423B Gillett Street. At 10:27 p.m., an unidentified male with a backpack left the residence. At 10:34 p.m. an unidentified female with a child and baby left and was picked up by a black SUV. At 10:47 p.m., Mr.

Frederickson and an unidentified female got into the Yukon and left at 10:50 p.m.; • At 11:03 p.m., the vehicle was parked at the Black Donkey café and Mr. Frederickson and the female were seen going inside where he spoke to several people and left at 11:12 p.m.; • At 11:17 p.m., the Yukon parked in an alley behind the Riviera hotel, Mr. Frederickson’s location was not established. At 11:30 p.m., the unidentified female was seen going into the Yukon and then into room 122 of the Riviera hotel which was found to be registered to William Starchuk.

At 11:47 p.m., a male was observed getting out of a black Chevrolet Avalanche also registered to William Starchuk, who has a documented history of being associated with those involved in the drug trade; • The Yukon then left the Riviera Hotel although the time of departure was not recorded in the surveillance report; • At 12:04 a.m., the vehicle was parked at the residence of Anna Thibadeau. At 12:06 a.m., Mr. Frederickson and the unidentified female walked around the residence. At 12:20 a.m., Mr.

Frederickson and an unidentified female got back into the Yukon, which was observed parked at 423B Gillett Street at 12:40 a.m. [ 11 ] Cst. Sweeney states he conducted checks of the GMC Yukon and found it was registered to Neal Jaswal, who PRIME records as having been carded to a drug trafficking occurrence. [ 12 ] Cst. Sweeney further attests in the ITO that on June 1, 2017, members of the Prince George RCMP Street Crew Unit surveillance team began surveillance at 423B Gillett Street and “the following observations of note were made”: • At 5:20 p.m., a black pickup arrived at 423B Gillett. At 5:27 p.m., Mr.

Frederickson left the front door of the unit and got into the Yukon and started driving; • At 5:45 p.m., the Yukon parked at 802 Johnson Street and Mr. Frederickson and an unidentified blond female were seen at that residence. Mr. Fredrickson was carrying a man purse; • At 5:59 p.m., the Yukon was parked at 3806 5 th Ave. It was unoccupied at 6:01 p.m.; • At 6:06 p.m., the black pick-up truck seen earlier at 423B Gillett St. arrived at 802 Johnson street; • At 6:46 p.m., Mr. Frederickson returned to the parked Yukon at 3806 5th Ave.;

• At 6:50 p.m., Mr. Frederickson drove the Yukon to 423B Gillett street and went inside carrying a man purse; • At 6:57 p.m., Mr. Frederickson was seen moving clothing, books, and a television to the Yukon. At 7:15 p.m., Mr. Frederickson drove the Yukon and was seen parking in the driveway of 802 Johnson street at 7:20. At 7:24 p.m., Mr. Frederickson was seen carrying clothing, books and a television from the Yukon into 802 Johnson Street. He left at 7:45 p.m. [ 13 ] Cst. Sweeney reports that the surveillance scribe was unable to keep up with the surveillance log at that time so Cst. Sweeney spoke to Cst.

Underhill, who was present during surveillance, who informed Cst. Sweeney of the following: • After leaving 802 Johnson Street, Mr. Frederickson drove the Yukon back to 423B Gillett Street and entered. At approximately 8:00 p.m., Cst. Underhill heard Cst. Connell report over the radio that a white truck had stopped at the residence and a female had went into the basement suite and returned a few minutes later, following which the truck left; • Cst. Underhill formed the opinion a drug transaction had occurred and stopped the truck to arrest the occupants for drug possession.

A search of the female’s purse incidental to arrest yielded a small baggie suspected to be heroin. [ 14 ] Cst. Sweeney stated that he spoke to Cst. Phillippe Charron and learned that Mr. Frederickson was arrested at 10:45 p.m. for possession for the purpose of trafficking while getting into the driver seat of the Yukon. A search of the Yukon produced a man purse containing suspected heroin, methamphetamine, crack cocaine and a large amount of cash. In the vehicle Cst. Charron located Mr.

Frederickson’s wallet and identification, scale, packaging materials, and approximately 5 ounces of methamphetamine, an ounce of heroin, and two ounces of crack cocaine which tested positively in field tests. He also located a rental agreement for 802 Johnson Street signed by Mr. Frederickson dated May 30, 2017. [ 15 ] Cst. Sweeney also spoke to Cst. Underhill who advised that he and other officers exigently entered the 423B Gillett street residence at 10:50 p.m. that evening. He observed a dismantled rifle in plain view on the floor.

The unit had minimal furniture and it appeared the occupants were in the process of moving out. [ 16 ] Cst. Sweeney states in the ITO that he has reasonable grounds to believe that trafficking offences have been committed based on the confidential informant information, the short duration stops observed during the periods of surveillance, the arrest of the female found in possession of suspected heroin after leaving Mr. Frederickson’s residence, and the drugs found in the bag searched incidental to the arrest of Mr. Frederickson. [ 17 ] Cst.

Sweeney states he believes the items sought will be in 423B Gillett Street and 802 Johnson Street because drug traffickers keep larger quantities of drugs in their residences to keep up with the demand of consumers; in his experience packaging materials and scales used to portion out drugs are found inside residences where drug traffickers conduct business; and the female was found in possession of suspected heroin after making a short visit to 423B Gillett Street when Mr. Frederickson was confirmed to be inside.

He also based his belief on the fact that a search of the Yukon produced a rental agreement for 802 Johnson Street signed by Mr. Frederickson and Mr. Frederickson had been observed moving household items into that residence on June 1, 2017. Issues [ 18 ] The issues I must decide are: 1. Are there inaccurate or misleading statements in the ITO which should be excised? 2. If so, after excision, is there still sufficient reliable information in the ITO upon which the issuing justice could be satisfied there were reasonable grounds to believe a CDSA offence was being committed? 3.

With or without any excisions from the ITO, was there sufficient reliable information upon which the issuing justice could be satisfied there were reasonable grounds to believe evidence of drug trafficking would be found at 802 Johnson Street? Analysis General Principles in Warrant Authorization Challenges [ 19 ] S. 11(1) of the Controlled Drugs and Substances Act authorizes the search of a residence pursuant to a warrant: 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 or 462.31 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. [ 20 ]

Section 8 of the Charter confirms a person's right to be secure against unreasonable search or seizure. Mr. Frederickson seeks to demonstrate that the contents of the ITO relied upon to obtain the warrants for 423B Gillett Street and 802 Johnson Street were insufficient to justify their issuance. If successful, the search of one or both of the residences as applicable are treated as warrantless, and therefore unreasonable and contrary to s. 8 of the Charter .

[21] When challenging a warrant, the review starts from the presumption that the warrant was validly issued and the search aslawful. The onus lies on Mr. Frederickson to show the warrant was invalidly issued (R. v. Sadikov, 2014 ONCA 376 at par. 83). [22] Mr. Frederickson is asserting both a facial and sub-facial challenge to the warrants. He asserts that a number of statements in theITO are false, inaccurate or misleading, and as such should be excised from the ITO. Mr.

Frederickson is also advancing a facialchallenge to the warrant for 802 Johnson Street on the basis that there was insufficient information to find there were reasonable groundsto believe evidence of drug trafficking would be found at that location. [23] The distinction between facial and sub-facial challenges to warrants was explained in R. v. Shivratten, 2017 ONCA 23 at par.26: Challenges to the validity of a warrant are described as facial or sub-facial.

On a facial challenge, counsel argues that the ITO, on itsface, does not provide a basis upon which the issuing justice, acting judicially, could issue the warrant. A sub-facial validity challengeinvolves placing material before the reviewing judge that was not before the issuing justice. On a sub-facial challenge, counsel arguesthat the material placed before the reviewing judge should result in the excision of parts of the ITO that are shown to be misleading orinaccurate. The warrant's validity must then be determined by reference to what remains in the ITO.

On a sub-facial challenge, counselmay also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at leastrecklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant: see Morelli, at paras.40-41; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 37-38; Crevier, at para. 74; and R. v.

Araujo, 2000 SCC 65, [2000]2 S.C.R. 992, at para. 57. [24] It is common in sub-facial challenges for the applicant to seek to cross-examine the affiant to demonstrate the contents of theITO were false or misleading, however, that is not a necessary pre-condition to advancing a sub-facial challenge.

The applicant is atliberty to adduce other relevant and material evidence, admissible on the inquiry into sub-facial validity, in an attempt to show, based onthe amplified record, that no sufficiently reliable information remains on the basis of which the warrant could have issued (Sadikov). [25] On a challenge to the validity of the warrant, the reviewing judge does not make a de novo assessment of the ITO's contents.Rather, he or she decides whether those contents provide a basis upon which the issuing justice, acting judicially, could find reasonablegrounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place (Shivrattanat paras. 24-25). [26] Sub-facial challenges to an affidavit go behind the form of the affidavit to attack the reliability of its content.

In any warrantchallenge the reviewing judge does not stand in the same place and function as the authorizing judge or conduct a rehearing of thewarrant application. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judgeconcludes that the authorizing judge could have granted the authorization, then he or she should not interfere. The existence of fraud,non-disclosure, misleading evidence and new evidence are all relevant, but, their sole impact is to determine whether there continues tobe any basis for the decision of the authorizing judge.

In looking for reliable information on which the authorizing judge could havegranted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basisof which the authorization could have issued. (R. v. Arujo, 2000 SCC 65 at par. 51; R. v. Garafoli (SCC), [1990] 2S.C.R. 1421 at p. 1452). [27] In looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, thereviewing court must exclude erroneous information.

However, if it was erroneous despite good faith on the part of the police, thenamplification may correct this information (Arujo, at par. 58). [28] A reviewing judge must exclude erroneous information from an affidavit supporting a warrant authorization, however, there isno authority for a reviewing judge to exclude correct information. Instead, the proper approach is for the reviewing judge, afterexcluding the erroneous information, to assess the affidavit as a whole to see whether there remains a basis for the authorization in thetotality of the circumstances (R. v.

Ebanks, 2009 ONCA 851 at par. 28). [29] Insofar as the validity of warrants is concerned, the test for authorization is either "reasonable suspicion" or "reasonable belief"depending on the nature of the authorization being sought. This is a lower standard than even the balance of probabilities. It envisions apractical, non-technical, common-sense assessment of the totality of the circumstances and permits the drawing of reasonable inferences(R. v. Wong, 2017 BCSC 306 at par. 63). Issue #1: Were there inaccuracies in the ITO which should be excluded? [30] Mr.

Frederickson has not sought to cross-examine the affiant, Cst. Sweeney. Rather, he relies on alleged inconsistenciesbetween other evidence led in this voir dire and the ITO as the basis of his application to exclude certain impugned statements. Whileevidence from Voir Dire #2 challenging the exigent entry of 423B Gillett Street was incorporated by agreement into this voir dire, little,if any, evidence led in that voir dire related to matters addressed in the ITO and is of little relevance in this inquiry. [31] The main source of information, to the extent Mr.

Frederickson seeks to compare that to the contents of the ITO, comes fromevidence led in Voir Dire #1 which addressed whether or not there were reasonable grounds to arrest Mr. Frederickson. In that voir dire,Cst. Marc Cloutier, Cst. Ryan Underhill, and Cpl. Phil Charron gave evidence of their observations during surveillance, the arrest andsearch of the female, and the arrest and search of Mr. Frederickson.

Of note, although the ITO disclosed there were several members onthe surveillance team, not all of them testified in this voir dire and others who testified were not questioned about facts attested to in theITO. Paragraph 36(

q) of the ITO [32] Mr. Frederickson challenges the following statement by Cst. Sweeney in the ITO with respect to what was observed bysurveillance team members on May 31, 2017:

“At 8:23 p.m. a second unidentified female attended the driver’s side window of the GMC Yukon with BCL#DV817V. The second unidentified female and Ricky Frederickson rummage through their bags. Ricky Frederickson gets out of the vehicle and the unidentified female who was at the driver’s window leaves; (Based on my experience as a police officer, short durations such as walking up to the window of a vehicle and rummaging through bags is consistent with a drug transaction).” [ 33 ] Paragraph 36(

r) of the ITO states that at 8:24 p.m., a minute later, the unidentified female who left returned but shortly thereafter left on foot again. [ 34 ] Mr. Frederickson argues that the officers on the surveillance team who testified in this voir dire confirmed in cross-examination that they did not see anything being exchanged by Mr. Frederickson and the unidentified female.

He says this paragraph suggests a transaction is taking place, and the affiant’s parenthetical statement concerning his “experience” is attenuated by evidence that the officers who testified in this voir dire did not see any hand-to hand transaction. [ 35 ] Cst. Sweeney identified the source of this information in the ITO as being the surveillance report prepared by Cst. Cloutier, which was not adduced in evidence.

There was no evidence in this voir dire contradicting the factual statements recounted by the affiant that the surveillance report documented observations of an unidentified female attending the driver’s side window of the Yukon, Mr. Frederickson and this female rummaging through bags, and that female leaving. There is nothing to suggest any of those factual statements were false or misleading. [ 36 ] Mr.

Frederickson’s main complaint is with the affiant’s parenthetical commentary concerning his view that “walking up to a window of a vehicle and rummaging through bags is consistent with a drug transaction.” [ 37 ] In the ITO, Cst. Sweeney identifies he has been an RCMP member since 2009 and a member of the “Street Crew” since November 2016. He was not cross-examined as to the reasonableness of his opinions or whether he possessed sufficient experience to offer such opinions. In the

preamble of the ITO, Cst. Sweeney states that his affidavit sometimes contains comments, and that where he has added comments to explain or link information and to state his belief, he has defined them with a round bracket. As such, the impugned statements are offered as commentary or opinion, not fact, and this distinction would have been apparent to the issuing justice who was at liberty to ascribe a sliding scale of weight to the opinion based on the foundational facts reported in the ITO. [ 38 ] The officer’s commentary, on its face, was not unreasonable.

There are numerous cases where trial judges have inferred the conduct of drug transactions during short duration interactions, even in the absence of evidence of actual hand-to-hand contact. The mere fact that other reasonable inferences could be drawn from those observations, or that officers did not see actual hand-to-hand contact, does not render the officer’s commentary “false or misleading.” [ 39 ] Mr. Frederickson relies on R. v. Wong , 2017 BCSC 306 in which the trial judge found the affiant’s stated opinion and conclusions in various statements suffered significant frailties.

However, in that case the affiant was cross-examined on her knowledge, experience, and the basis of her opinions. As such the trial judge had an evidentiary basis to conclude her statements in the ITO were unreliable. For example, evidence was adduced that the affiant had no training in clandestine labs, very little knowledge about how methamphetamine was manufactured, and did not really know what a precursor was.

On that basis the trial judge found any opinions she expressed in the ITO respecting the production of methamphetamine ought to be disregarded in light of her lack of experience and personal knowledge on that subject matter. [ 40 ] In this case, no cross-examination of the affiant on the reliability of his opinions was conducted and no independent evidence contradicting his opinions was adduced. Rather, Mr. Frederickson complains the facts disclosed in the ITO itself were not sufficient to support the opinions. That alone is not sufficient to conclude the opinions were false, misleading, or unreliable.

I have no knowledge of what other information, if any, the officer was relying upon in offering the opinions or what level of experience he was drawing from. Any deficiencies in laying out the foundation for his opinions in the ITO itself may be relevant to the weight which the issuing justice may have attributed to the opinions, but cannot, without more, support the conclusion they were in fact unreliable as contemplated in Wong . Paragraph 36(

u) and 36 (ss) of the ITO [ 41 ] At Paragraph 36(

t) in the ITO, Cst. Sweeney recounts the following information from the surveillance report: “At 8:38 p.m. GMC Yukon with BCL#DV817V at 2505 Oak Street, Prince George. Ricky Frederickson exits the vehicle and knocked on the apartment window. The Apartment had bars on the window.” [ 42 ] Mr. Frederickson challenges the accuracy of Cst. Sweeney’s statement that: ”At 8:54 p.m. Ricky Frederickson leaves 2505 Oak Street, Prince George. Ricky Frederickson was still carrying a bag as he walked back to the GMC Yukon with BCL#DV817V.

GMC Yukon with BCL#DV817V leaves this location. (Based on my experience as a police officer short duration visits as such are consistent with a drug transaction in particular loading another trafficker with quantities of drugs to sell – Constable Phillippe Charron is familiar with this address to be that of Robert Herron who has a documented drug history on PRIME)”; [ 43 ] Mr. Frederickson says that evidence led in this voir dire suggests Mr. Frederickson was not seen actually going into the residence and the affiant’s commentary implies Mr.

Frederickson did attend. [ 44 ] Again, the surveillance report was not adduced in evidence and the affiant was not cross-examined on the impugned statement. There is no evidence to suggest any of the factual statements concerning observations of Mr. Frederickson at that residence were inaccurate. Further, there is no evidence to suggest Mr. Frederickson did not go into 2505 Oak Street as implied by the affiant. There is no evidence of which officer’s observation Cst. Sweeney was recounting from the surveillance report, what the report’s entry said, and whether or not the observing officer actually saw Mr.

Frederickson go inside. Not all of the members of the surveillance team testified in the voir dires which formed the evidentiary basis of this voir dire . There is only evidence from one officer about observations he made at

2505 Oak Street, Cpl. Charron, who testified he was driving a vehicle with other surveillance team members that day who were also relaying observations by radio to Cst. Cloutier. [ 45 ] Cst. Charron testified in the voir dire that he saw Mr. Frederickson arrive at 2505 Oak Street at 20:38 and that he was familiar with that apartment because he had watched it extensively before. He knew the occupant to be Rocky Herron and that people needed to knock on the window for him to come and buzz them into the apartment. [ 46 ] Cst. Underhill, the lead investigator, testified that it was relayed to him by Cst.

Charron during surveillance that Mr. Frederickson had approached the basement window, knocked, and was let inside. Cst. Cloutier, the surveillance scribe, was sharing a vehicle with Cst. Underhill and was potentially in a position to have heard Cst. Charron’s report and recorded that observation in the surveillance report which was relied on by the affiant. [ 47 ] In any event, the information recounted from the surveillance report suggested Mr. Frederickson knocked on the window of 2505 Oak Street at 8:38 p.m. and left that residence at 8:54 p.m., 16 minutes later. It was reasonable for Cst. Sweeney to infer Mr.

Frederickson remained at that location for 16 minutes because he was let into the residence. [ 48 ] In short, I cannot conclude from the evidence adduced in this voir dire that there was no information available to the affiant to support the implication in his commentary that Mr. Frederickson went inside the residence at 2505 Oak Street. I cannot find as a fact that Mr. Frederickson did not go inside. [ 49 ] Mr. Frederickson also argues that the officer’s commentary about reloading drug traffickers was a “stretch” based on the information available to him.

He advances a similar argument with respect to paragraph 36(ss). At paragraph 36(rr) of the ITO, Cst. Sweeney recounts from the surveillance report: “June 1 st , 2017 at 12:04 a.m. GMC Yukon with BCDL#DV817V is parked at 2633 Norwood Street, Prince George, which is the residence of Anna Thibadeau.” Mr. Frederickson challenges the statement that follows at paragraph 36(ss): “At 12:29 a.m.

Ricky Frederickson and an unidentified female with blond hair got into the GMC Yukon with BCL#DV817V and left. (Short duration as such in my experience as a police is consistent with a drug transaction particular loading another trafficker with quantities of drugs to sell)”; [ 50 ] Mr. Frederickson argues that the time period, 26 minutes, is not reasonably characterized as a “short duration stop” or that this was “loading.” [ 51 ] Again the impugned commentaries were made in parenthesis and therefore clearly identified as belief, not statements of fact.

The affiant was not cross-examined on the reasonableness of his opinion or what information he relied on in forming that opinion, and I cannot conclude on the evidence before me that it was false or misleading. [ 52 ] There was no evidence led in the voir dire which called the reasonableness of that opinion into question. To the contrary, evidence was adduced from Cpl. Charron and Cst. Underhill that Anna Thibadeau was a known drug trafficker. Cst. Underhill opined that a meeting of around 20 minutes with a known drug trafficker was consistent with a large sale of drugs between traffickers.

While this information was not before the issuing justice and cannot be used to assess if the ITO contained sufficiently reliable information for the authorization, it is relevant to assessing whether the affiant’s commentaries were, in fact, unreliable, false or misleading. I cannot make that finding on the evidence. [ 53 ] The impugned commentaries were not unreasonable and it was open to the justice to ascribe whatever weight to the commentary he or she deemed appropriate in considering the totality of the information. In R. v.

Nguyen , 2011, ONCA 465 , the accused attacked the veracity of the affiant’s statement that he “believed” there was an electricity diversion at the target address to conceal actual electricity usage, to which the Court of Appeal said at paras. 41-42: First, the statement is not a statement of fact, but of belief. The issuing justice was fully capable of assessing the strength of that belief based on the record. D.C. Mason did not misstate any facts in this regard.

Indeed, he was forthright in acknowledging that the hydro usage, as depicted by the comparative hydro readings, was not sufficient to support a marijuana grow operation. Secondly, there was evidence capable of supporting D.C. Mason's belief. True, there was no direct evidence of any bypass switch.

However, the facts as presented to the issuing justice disclosed a glaring, and unexplained, discrepancy: the readings showed the house was using less electricity than other neighbouring homes; yet the results of the FLIR exercise and the observations of snow on the roof of 304 Sheppard Ave., compared to its neighbours, indicated high levels of heat radiation -- a hallmark of a marijuana grow operation. It may have been prudent for D.C. Mason to have attempted to verify his belief.

Nonetheless, having regard to the circumstances and his general experience and training, it was not unreasonable for him to believe that an electricity bypass was occurring, in my opinion. [ 54 ] In this case the ITO recounted information from Confidential Informant B that “Rick may be “loading Anna with drugs” and Mr. Frederickson was seen going into a residence occupied by an “Anna” Thibadeau. It was open to the justice to infer that Anna Thibadeau was the same person identified by the confidential informant.

Similarly, it was open to the justice to infer the meeting at Rocky Herron’s apartment was to conduct a large sale of drugs between traffickers based on Mr. Herron‘s drug history, the length of the visit, and the information from Informant A that “Ricky loads people with drugs.” Paragraph 36(ee) of the ITO [ 55 ] Mr. Frederickson challenges the following statement in the ITO summarized from the surveillance report: “At 10:13 p.m. an unidentified female with a white shirt leaving the GMC Yukon with BCL#DV817V and walking to the apartment.

GMC Yukon with BCL#DV817V then leaves and mobile surveillance established; (Based on my experience as a police officer short durations of walking out of a residence and getting into a vehicle then shortly after going back inside is consistent with a drug transaction ) ”

[ 56 ] Mr. Frederickson argues it was a female, not Mr. Frederickson, seen entering the apartment, and that the officer’s opinion was not sufficiently supported by this information. This is not a complaint that the factual statement of the police’s observations were false or misleading, rather, I understand Mr. Frederickson to be challenging inferences which may be drawn from that statement. [ 57 ] Again, the officer’s commentary was contained in parenthesis and therefore properly identified to the issuing justice as opinion, not fact. The affiant does not suggest Mr.

Frederickson conducted the alleged transaction. To the extent the affiant invites the authorizing justice to infer these observations were relevant to the police’s investigation of Mr. Frederickson, given that an unidentified female passenger was observed travelling with Mr. Frederickson throughout the evening of May 31, 2017, it was an available inference to draw that the female was acting as a party in a joint drug undertaking with Mr. Frederickson. Paragraph 36(oo) of the ITO [ 58 ] Mr.

Frederickson challenges the following statement in the ITO: “At 11:47 p.m. a suspicious looking male observed getting out of a black Chevrolet Avalanche with BCL#HY3962 registered to William Starchuk (Constable Ryan Underhill obtained Hotel guest list, and William Starchuk was then renter of unit 122. William Starchuk has a documented history on PRIME of being associated with those involved in the drug trade)”. [ 59 ] Mr. Frederickson says there was no basis set out in the ITO for describing the male observed by police as “suspicious.” [ 60 ] Again, whether or not Cst.

Sweeney made a false statement in describing this male as “suspicious” cannot be ascertained on the evidentiary record before me. Cst. Sweeney was re-stating the contents of the surveillance report prepared by Cst. Cloutier, which was not adduced in evidence. The officers who made the observation were not cross-examined in the voir dire on this point.

It is therefore unknown whether the surveillance report or if the surveillance officers observed behaviour which was indeed “suspicious.” I cannot conclude that because the ITO fails to specifically articulate the observations underlying the officers’ impression that the male was “suspicious” that, in fact, he was not. [ 61 ] I cannot find that the impugned statement in the ITO was in fact false or misleading, or, more importantly, that Cst. Sweeney knew or ought to have known as much.

Cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. At the authorization stage a reasonable belief in the existence of the requisite statutory grounds will suffice for the issuance of the warrant. If the grounds relied upon in support of the authorization are later proven to be false, that does not retroactively invalidate what was an otherwise valid authorization ( R. v. Lising , 2005 SCC 66 at par. 41 ). [ 62 ] In R. v.

Merritt , 2017 ONSC 1648 , the affiant stated he had obtained information from a “Case Overview” prepared by another officer that the accused initially refused to provide a statement, but later reluctantly agreed to provide a written statement but would not take a polygraph. At the Preliminary i nquiry the author of the Case Overview testified the accused had given a statement without objection. The accused attacked the statement in the ITO on the basis that it was false.

In assessing that complaint, the trial judge spoke to the absence of evidence concerning information available to the affiant at the time the ITO was sworn, saying at par. 160: I would point out that I have no evidence that the Case Overview authored by Cst. Boyer did not say what Cst. Ciftci swore it said. Cst. Boyer's preliminary inquiry testimony occurred long after Cst. Ciftci swore the ITO. As I mentioned in Ruling No. 7 ( R. v.

Merritt , 2017 ONSC 1508 ), at paras. 120 -- 22, the accuracy of an affiant's statements must be determined on the basis of what the affiant knew or ought to have known at the time the ITO was sworn. Consequently, I am unable to conclude that any material inaccuracy in the ITO has been established.

In addition, it seems to me that even if there is an inaccuracy it is not a material inaccuracy as it relates to the investigation of Bridget Harrison's death and the s. 492.1 warrant was obtained only in relation to Caleb Harrison's murder. [ 63 ] In this case, I have no evidence to suggest the Surveillance Report relied on by Cst. Sweeney did not describe the male as suspicious. [ 64 ] Mr. Frederickson also complaints that reference to a “suspicious male” invites a conclusion that this male was William Starchuk.

Again, this is a complaint about inferences an issuing justice may or may not have drawn from the information, not that the information itself was false or misleading. I do not read paragraph 36(oo) as inviting the conclusion that the male seen was William Starchuk. Independent of any characterization of the male as “suspicious,” it was open to the authorizing justice to infer that Mr. Frederickson, or his female passenger, were meeting with William Starchuk on the basis that Mr. Starchuk’s vehicle was near the Riviera hotel and a female was seen going from the Yukon to a room registered to that guest.

Paragraph 36(pp) [ 65 ] The Crown concedes that the parenthetical commentary at paragraph 36(pp) ought to be excised from the ITO, which reads as follows: “GMC Yukon with BCL#DV817V left the Riviera Hotel of 910 Victoria Street, Prince George. The time of this was not recorded (short duration stops at hotels and commercial lodging in my experience as a police is consistent with a drug transaction particular loading another trafficker with quantities of drug to sell)”; [ 66 ] The Crown’s position is there was no basis for Cst.

Sweeney to conclude this was a “short duration stop” based on the contents of the ITO which identifies the Yukon parking in an alley near the hotel at 11:17 p.m. and later observed parking at Anna Thibadeau’s residence at 12:04 a.m. As such, this commentary should be excised from the ITO. Issue #2: Could the authorizing Judge have reasonable grounds to believe a CDSA offence was being committed based on the remaining Information in the ITO? [ 67 ] Mr. Frederickson argues that after excising the impugned statements, there was not sufficient reliable in the information in the

ITO upon which the authorizing judge could have had reasonable grounds to believe a CDSA offence was being committed. [ 68 ] The "reasonable grounds to believe" standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. Reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.

The appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or " prima facie case". [ 69 ] A determination with respect to whether reasonable grounds exist requires a consideration of the "totality of the circumstances.” It is important that the ITO be examined as a whole and not one piece of evidence at a time, because each piece of evidence colours other pieces of evidence and a fuller picture emerges by considering all of the evidence together.

Further, the assessment of the facts relied upon to establish reasonable grounds is made on a practical, non-technical, and common sense basis ( R. v. Whitaker , 2008 BCCA 174 at paras. 39-42 ). [ 70 ] An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems.

The test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge ( Ebanks , at par. 31 ; Arujo at par. 54). [ 71 ] Looking at the information contained in the ITO in its totality after excluding paragraph 36(pp), I find there still would have been ample information upon which an authorizing judge could have reasonable grounds to believe Mr. Frederickson was trafficking in drugs.

I find this would have been the case even if the impugned commentaries challenged by Mr. Frederickson had been excised from the ITO. The remaining reliable information includes: • The ITO disclosed three anonymous tips that Mr. Frederickson was selling drugs. Much of the source information was corroborated by police officers - Mr. Frederickson’ had a residence on Gillett s treet; he had been caught with methamphetamine by police the year before; he was found in possession of suspected methamphetamine, heroin and cocaine at the time of his arrest; Mr.

Frederickson was seen driving around town with a bag; there was activity observed at his residence consistent with drug trafficking, and he was observed going to the residence of a person named “Anna”; • Two of the informants specified Mr. Frederickson was “loading” others with drugs; • Mr. Frederickson had a criminal record for drug related offences and had two relatively recent contacts with police where he was found in possession of or in a vehicle with large quantities of drugs; • Police conducted surveillance of Mr. Frederickson in which he was seen to make several short duration stops; • Mr.

Frederickson’s activities involved persons or places involved in the drug trade. He conducted a short duration stop with a drug user and attended the residence of a person associated to the drug trade. A female was seen going from the vehicle he was driving to a hotel room registered to a person associated to the drug trade. He was driving a vehicle of a person previously carded for drug trafficking offences; • During these stops Mr. Frederickson was seen carrying a dark bag described as a man purse; • a person seen briefly visiting Mr.

Frederickson’s residence while he was present was found to have heroin in her possession immediately after leaving that residence; and, • Large quantities of suspected drugs and cash, as well as scales and packaging materials were found in Mr. Frederickson’s vehicle at the time of his arrest. Field tests conducted at the scene tested positive for crack cocaine, methamphetamine and heroin. The drugs and cash were found in a man purse inside the vehicle and he had been seen during surveillance carrying a man purse.

Issue #3: Were there reasonable grounds to believe evidence would be found at 802 Johnson Street? [ 72 ] Mr. Frederickson does not really contest there were reasonable grounds to believe evidence would be found at 423B Gillett Street based on the observations of police of activity at that residence and Mr. Frederickson’s association to that residence. He argues there were insufficient grounds to support the belief that evidence of trafficking offences would be found at the 802 Johnson Street address. [ 73 ] Mr.

Frederickson points out that unlike 423B Gillett Street, there were no observations of short duration attendances by third parties, there is no independent database confirmation of Mr. Frederickson’s’ association to that address and no source information identifying that address. Mr. Frederickson says at one point a vehicle other than the Yukon was observed going from 423B Gillett to 802 Johnson Street in his absence, from which it could be inferred other people were moving into 802 Johnson Street. The police only observed a few items being moved into 802 Johnson Street by Mr. Frederickson at that time.

He submits the information tying him to that residence, or suggesting drug related evidence may be at that residence, is scant. [ 74 ] In support of that contention, Mr. Frederickson relies on R. v. Ali-Kashani , 2016 BCPC 482 . In that case, police obtained a warrant to search the apartment of the Accused’s alleged girlfriend solely on the basis of confidential information that the Accused had moved some narcotics to his girlfriend’s place, the address of which was not identified. There was also confidential information that this female had cocaine inside her apartment, with no other explanation.

The trial judge was of the view that the bulk of the information relating to this female was a suggestion she was “guilty by association,” and that on the totality of information available to the authorizing justice there was not sufficient reliable information upon which a warrant could have issued for a search of that location. [ 75 ] Again, it must be emphasized that in a warrant review I am not conducting a hearing de novo . I cannot dismiss or re-weigh inferences which could have been reasonably drawn by the issuing justice from the information provided.

Unlike the case in Ali- Kashani , the 802 Johnson Street was directly linked to Mr. Frederickson who was the target of surveillance and the investigation. I find

there was sufficient reliable information upon which the issuing Justice could be satisfied there were reasonable grounds to believe that evidence of drug trafficking would be found at 802 Johnson Street, including: • Officers had observed Mr. Frederickson moving household items into that residence from 423B Gillett Street on June 1, 2017. He was observed going from 423B Gillett to 802 Johnson twice that day – at 5:45 p.m. and 7:20 p.m.; • Upon the search of the Yukon incidental to Mr. Frederickson’s arrest, a lease agreement for 802 Johnson Street was found signed by Mr.

Frederickson and dated only two days earlier; • While at 802 Johnson Street at 5:54 p.m. officers saw Mr. Frederickson carrying a black “man purse.” Such a bag was later searched by police that evening in connection with Mr. Frederickson’s arrest and contained large amounts of suspected drugs and cash; • Mr. Frederickson was observed going into 802 Johnson Street at 7:24 p.m. and returning to 423B Gillett Street at 7:45. At 8:00 p.m., around 15 minutes later, a female was seen going into 423B Gillett Street and immediately afterwards found in possession of suspected heroin.

It was reasonably open to the issuing justice to infer that Mr. Frederickson was storing drugs or related drug trafficking material at 802 Johnson Street and transporting them from that residence in the black man purse; and, • There was considerable information to suggest Mr. Frederickson trafficked drugs out of 423B Gillett Street while it was being used as his residence. It was open to the issuing justice to infer that Mr.

Frederickson was in the practice of storing and trafficking drugs from his residence, wherever that may be, as opposed to just 423B Gillett Street. [ 76 ] Based on the totality of the information contained in the ITO, I find there was sufficiently reliable information upon which the issuing justice could reasonably believe that evidence of drug trafficking would be found at both the 423B Gillett and 802 Johnson Street residences. [ 77 ] I find both warrants were validly issued and the Application to exclude evidence obtained from the searches of those residences is dismissed. ________________ Judge C.

Malfair Province of British Columbia