R. v. Fagerlund and Sharifi-Shakib Date:, 2011 BCPC 153

Citation: R. v. Fagerlund and Sharifi-Shakib Date: 20110615 2011 BCPC 0153 File No: 53885-3C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BROOKE FAGERLUND HOSSEIN SHARIFI-SHAKIB RULING ON APPLICATION OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: J. Whyte Counsel for Fagerlund: David Fai Counsel for Sharifi-Shakib: David Forsyth Place of Hearing: North Vancouver , B.C.

Dates of Hearing: January 17,18; March 14, 22, June 8, 2011 Date of Judgment: June 15, 2011 [ 1 ] The defendants are charged with possession of cocaine and crystal methamphetamine for the purpose of trafficking, possession of a machine intended for use in counterfeiting, possession of counterfeit money, and possession of a prohibited handgun, arising from a search of their residence on January 8, 2010. [ 2 ] The items located in the residence during the search are listed in admissions of fact as: 1. Cocaine: (a) 1.3g rocks (b) 4.1g rocks 2. Methamphetamine: 1.7g 3.

Counterfeit U.S. money: 19 x $20; 14 x $50; 3 x $100 4. A Dell photo 926 printer, serial #4470-0d1 5. A prohibited weapon, namely a Stephens model Tip-Up #41 single shot pistol in .22 caliber, serial # 8429. [ 3 ] After a voir dire I ruled that the search warrant was not validly issued. Its execution at the defendants’ premises therefore constituted a breach of

section 8 of the Charter of Rights and Freedoms. The defendants now apply to have the evidence excluded under section 24(2).

[ 4 ] Under what is now routinely referred to as the “Grant analysis” [ R. v. Grant , 2009 SCC 32 ], the three factors governing whether admission of evidence will bring the administration of justice into disrepute are the seriousness of the Charter-infringing state conduct, the impact of the breach on the defendant’s Charter-protected interests, and society’s interest in an adjudication on the merits.

The onus is on the defence to demonstrate that these factors weigh on balance in favour of exclusion of the evidence. [ 5 ] In this case, I found the following defects in the Information to Obtain a Warrant [ITO] prepared by Cst. Brophey of the North Vancouver R.C.M.P. Crime Reduction Unit, here summarized but set out in more detail in my earlier ruling. 1. Overstatements and conclusory language in relation to some of the surveillance observations; 2. Omission of the fact that the defendants had received an eviction notice for the subject premises several weeks prior to the entry; 3.

Omission of the fact that the police report of a counterfeit money transaction differed in some respects from information reported by an informant about a similar transaction; 4. Inclusion of superfluous information about hits on the police computer inquiry system for various people, places and vehicles; 5. Failure to provide sufficient information about the reliability of four informants whose information formed a large portion of the basis for the ITO; 6. Confusion regarding which informant had provided some of the information; 7.

Unsupported conclusions regarding the likelihood that counterfeit money and equipment would be present; and 8. Inclusion of erroneous information about a link between the phone number attributed by the informants to the defendants and a drug arrest of an individual named Parry. [ 6 ] Correcting for those defects in the ITO, and reviewing the totality of the information, I found the ITO did not support a reasonable conclusion that drugs or counterfeit paraphernalia would probably be found at the defendants’ residence on the date of the warrant.

Seriousness of the Charter-infringing State Conduct [ 7 ] The first task, assessing the seriousness of the Charter-infringing state conduct, is the area in which counsel most seriously differed. Mr. Whyte for the Crown submitted firstly that the officers who executed the warrant cannot be said to have been operating in anything but good faith, as they had in hand a warrant that appeared valid on its face. [ 8 ] In a case where the affiant was not part of the search team, there might be an argument that the mindset of the executing officers has some relevance. In this case, however, Cst.

Brophey was present for the execution of the warrant, as was her partner, Cst. Laljee, both of whom were members of the surveillance team. The errors and omissions contained within the ITO were the responsibility of Cst. Brophey. As observed by Bruce J. in R.v. Gaba , 2010 BCSC 830 , the executing team, or at least the affiant, can be taken to be fully aware of the grounds [or lack thereof] on which they relied in obtaining the warrant. I recognize that the grounds had resulted in a judicial authorization at that point, but Cst.

Brophey, as the affiant, took her mindset with her when she went to execute the warrant. [ 9 ] I am not convinced the mindset of the officers who enter under the warrant has relevance in any event. The cases make it clear that it is the affiant’s state of mind and conduct in obtaining the warrant which is the subject of the analysis where a search warrant has been found defective: R. v. Morelli , 2010 SCC 8 ; R. v. Wing & Richard , 2009 YKTC 113 . [ 10 ] Mr.

Whyte seeks to distinguish recent cases in which defects or insufficiencies in a search warrant have been found to constitute serious infringements, notably Morelli , and R. v. Dhillon , 2010 ONCA 582 , on the basis that the errors in those cases were more material to the substance of the warrant. Here, he says, there is less in the way of material misrepresentations in the mistakes that were made by the officer.

It is the characterization of the mistakes and the nature of the deficiencies which dictate the assessment of the degree of infringement. [ 11 ] Much of the case law dealing with seriousness of the breach in the case of a quashed search warrant does focus on the mindset of the officer who swore the affidavit, and where on the spectrum of good faith the errors lie. There is also some judicial comment regarding decisions on the part of the police or Crown to redact portions of the information provided by informants.

Where that is done the Crown assumes the risk that a court may be constrained to find the warrant invalid, unless care is taken to ensure that sufficient information is included to support its issuance. See: Wing & Richard , para. 51 ; Dhillon , para. 10 . [ 12 ] I am prepared to accept the Crown submission that there may be a second prong of the first factor, dealing with the extent to which the errors strike at the heart of the basis on which the warrant was sought.

Sometimes, as in Dhillon , the basis is somewhat removed from the items ultimately discovered [though I note the evidence was excluded in that case]. [ 13 ] Here, the police believed that the defendants were drug dealers and that they had a stash house in their residence. They also had some dated information about the presence of counterfeit money. To justify a warrant they needed to provide grounds that created a reasonable probability that drugs and counterfeit paraphernalia would be present on the premises.

Some of the errors summarized above, including the unexplained error regarding the cell phone number, were peripheral to the basis for the warrant, serving to identify the defendants as likely drug dealers, rather than to place drugs or counterfeit paraphernalia in their residence. [ 14 ] However, the two omissions which I have found occurred, the first with respect to the description of the reported transaction at the Men’s Club, and the second regarding the existence of the eviction notice, were both material to the purposes for which the search

warrant was sought. I would also place the failure to provide information about the reliability of the informants in this category. [ 15 ] The primary aspect of the seriousness of the breach however is where, on the spectrum of good faith to egregious or deliberate rights infringement, the police conduct falls. I have reviewed my notes of Cst. Brophey’s evidence regarding the two omissions, and it concerns me. She was not forthright in the manner in which she admitted either of these omissions.

In each case, several questions were required in order for counsel to have her admit that she had information that may have detracted from the strength of her grounds to believe these items were in the premises. I would categorize her attitude as evasive and coy. [ 16 ] I do not conclude that Cst. Brophey deliberately misled the justice; however, she was cavalier about the information she included, and her attitude when she testified about these omissions raised issues about her motives.

HaHad Had she been more forthright I would have been better able to conclude that the omissions were merely inadvertent. [ 17 ] I find that the conduct of the police in this case should be characterized as careless at best; arguably negligent; and possibly calculated. [ 18 ] I am mindful of the fact that Cst. Brophey was the least experienced member of the team. While she testified that she had instruction from both Cpl. Tupper and Sgt. Korbely in how to prepare the ITO, it does not appear that she had either of them review it before it was submitted.

I have previously commented before that it was badly organized and difficult to follow. [ 19 ] It would have been open to the experienced officers to oversee the production of the ITO and ensure that it was more accurate and better organized. If Cpl. Tupper had reviewed it she no doubt would have recognized the error concerning the Parry cell phone. That particular fact, though not material to the issuance of the warrant, was one which, like that commented on in Dhillon at para. 49 , “lacked any reasonable explanation.” It is not a logical mistake.

It is difficult to find other than that it was an unfounded embellishment. [ 20 ] It is appropriate in these particular circumstances to consider the conduct of the investigating team as a whole, in my view. Cst. Brophey was not provided adequate support for the task she was assigned, and the senior officers who supervised her elected to run the risk of there being irreparable errors in the ITO. This is a factor to be considered in terms of the police conduct, and it has relevance to the long term effect on the administration of justice of admitting the evidence.

Impact of the Breach [ 21 ] The second issue under the Grant analysis is the impact of the breach on the defendants’ Charter-protected interests. Morelli makes it clear that intrusion into a residence is high on the scale, as it has always been. There are no additional factors upon which the police could rely to justify the entry of this residence; it was all dependent on the warrant. It was a violation of privacy within a residence, short perhaps only of interference with bodily integrity or, under Morelli , a personal computer within a residence. This factor weighs in favour of exclusion.

Society’s Interest in Adjudication on the Merits [ 22 ] The third factor, society’s interest in adjudication on the merits, must be considered in light of the impact of exclusion [or inclusion] on the short and long term repute of the administration of justice. On the short term, the evidence is reliable and crucial to the case for the Crown.

While the seriousness of the offence is said not to be a particular factor, one must recognize the immediate impact on the administration of justice of reports that alleged drug dealers who possessed drugs and weapons have been acquitted on a technicality. [ 23 ] The flip side of that is whether the court chooses to endorse conduct of the police that falls short of Charter standards, in a situation where the breach may have been easily avoided, had the junior officer received proper supervision and direction.

Whether it was a resource or scheduling issue, or a training or a policy decision, it was not prudent of the Crime Reduction Unit to leave Cst. Brophey on her own in the preparation of this ITO. [ 24 ] Further, it must be borne in mind that, stripped of the errors and omissions, and with the amount of information that had been redacted, the information contained in the warrant supported only a conclusion that the defendants, or at least Ms. Fagerlund, was probably involved in trafficking drugs from vehicles belonging to others.

The information acquired as of the warrant execution date was not sufficient to establish that they ran a stash house, nor does the evidence discovered really support that conclusion. The search disclosed a modest quantity of drugs and an unregistered prohibited handgun. Notably, the handgun did not figure in the grounds for the warrant, and there are no allegations regarding its presence in any of the surveillance observations. [ 25 ] To admit this evidence would endorse the concept that every suspected drug trafficker’s home is available for a search without grounds to believe there are drugs present there.

It is the converse of Mr. Whyte’s concern, expressed in submissions, that the exclusion of the evidence would mean that every residence search in which the search warrant is quashed must be struck down. [ 26 ] As to that concern, I can conceive of circumstances where the information after excision is found to be insufficient to support the warrant and yet the search of a residence may be upheld, but those arguments will have to be left for another day. Each case will turn on its own facts, and the floodgates issue raised by the Crown in this case is not in my view enough to rehabilitate the search. Conclusion

[ 27 ] Balancing the relevant factors, I find that the administration of justice would be brought into disrepute by the admission of the evidence in this case. _____________________________ The Honourable Carol Baird Ellan Provincial Court Judge