R. v. Plamondon, 2020 MBPC 67

CITATION: R. v. Plamondon, 2020 MBPC 67 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) A. Millo and A. Gingera ) for the Crown - and - ) Mathieu Plamondon ) T. Walker ) for the Accused Accused ) ) ) Reasons for Decision ) Delivered: December 16, 2020 at ) the City of Brandon, ) in the Province of Manitoba Hewitt-Michta, P.J.

INTRODUCTION [ 1 ] When housekeeping staff in an Edmonton hotel room discovered a restricted handgun in a pillow on May 17, 2018, it sparked an interprovincial investigation into possession of stolen firearms, culminating in allegations of conspiracy to traffic stolen firearms. [ 2 ] The handgun was registered to Grant Hooke of Brandon. A call from Brandon Police Service [BPS] prompted the discovery that several restricted and non-restricted firearms were missing from his locked gun safes.

He suspected his son Chad Hooke was responsible for the theft and told police about his son’s recent trip to Edmonton in a truck borrowed from Grant Hooke. [ 3 ] An Edmonton Police Service [EPS] investigator identified Chad Hooke’s partner Sheena Jones’ name associated with the Edmonton hotel room along with that of a known Edmonton gang member. [ 4 ] Between May 17 and May 25, Brandon and Edmonton Police Service officers conducted an investigation that included accomplice interviews, review of hotel CCTV recordings, and surveillance of the accused, his girlfriend Nicole Harkness [Harkness], and associate Christopher Flamant [Flamant]. [ 5 ] On May 25, an Alberta Judicial Justice of the Peace [JJP] granted an EPS officer’s application for a search warrant pursuant to

section 487 of the Criminal Code of Canada [ CCC ] . The warrant authorized the search of two residences and a storage locker for the stolen firearms as well as ammunition, cell phones, cell phone contents, Grant Hooke’s Ford F150, and various other items. The warrant was executed within the identified time frame resulting in a number of seizures.

Mathieu Plamondon [Plamondon] was arrested just prior to the execution of the warrant; his iPhone was seized and was itself searched within the specified time frame in the warrant. [ 6 ] The accused brought an application pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms [ Charter ] to exclude from his trial the evidence seized through the search warrant. He challenges the sufficiency of the Information to Obtain [ITO] underlying the search warrant and alleges a breach of his

section 8 right to be secure from unreasonable search and seizure. The crown concedes the applicant has the requisite standing to bring this application on the facts of this case and arising from the theory advanced by the crown.

THE APPLICATION [7] The application is a facial attack on the ITO and authorization founded on the following assertions: (

a) the affiant relied on unsourced narrative; (

b) the affiant relied upon information best characterized as mere gossip, rumor, or speculation; (

c) the affiant relied upon individuals akin to informants of undetermined and questionable reliability who provided informationanalogous to “tips” that were not credible, compelling, or corroborated; (

d) the affiant disregarded innocent explanations for some of the accused’s actions; (

e) there are “over-reaching” assertions in the ITO; and (

f) there is insufficient reliable information in the ITO connecting the accused to the stolen truck, firearms, and storage locker;relating the stolen firearms to the places to be searched; establishing a temporal link between the truck and the residences to be searched;and connecting the stolen property to the accused’s cell phones. [8] The applicant further alleges that police seized his cell phone incident to arrest outside of any of the search locations and, as such,were not entitled to rely upon the warrant to search the phone contents. The applicant seeks exclusion of the cell phone contents on thebasis that this evidence was obtained via warrantless search in violation of

section 8 of the Charter. THE LAW [9] To be constitutional, a search must be reasonable. A search will be reasonable where it is authorized by law; the law itself isreasonable; and where the search was carried out in a reasonable manner. [“The Collins Test” - R. v. Collins (SCC),[1987] 1 S.C.R. 265] [10] For a warranted search to be authorized by law, the statutory preconditions must have been satisfied in the ITO. A review of thesufficiency of the ITO is deferential in nature and not a “do-over” by the reviewing judge.

The reviewing judge assesses whether theinformation properly before the issuing judge was capable of supporting the issuance of the search warrant. [“Garofoli review” – R. v.Garofoli, (SCC), [1990] 2 S.C.R. 1421] [11] The Manitoba Court of Appeal, in R. v. Pilbeam 2018 MBCA 128, considered numerous cases and provided an instructivesynopsis for the judge tasked with a Garofoli review. The search warrant and supporting materials are presumed valid and it is theaccused’s onus, on a balance of probabilities, to demonstrate insufficiency.

A whole-picture, contextual, and practical analysis isnecessary; not a fragmented and technical deconstruction of singular evidentiary puzzle pieces. The reviewing judge looks to theavailable evidence and reasonable inferences that could be drawn from that evidence to determine if there was any basis upon which theauthorizing justice could conclude on the totality of the circumstances that the statutory prerequisites existed. [12] The preconditions for a

section 487 CCC warrant are rooted in “reasonable grounds to believe”. Mr. Justice Mainella, at paragraph11 of Pilbeam, wrote: 11. The concept of ‘reasonable grounds to believe’ is a compromise for accommodating the differing interests of privacy and lawenforcement. This legal standard is grounded in objective facts that stand up to independent scrutiny (R. v. MacKenzie, 2013 SCC 50 atpara. 74). Reasonable grounds to believe is something more than mere suspicion but something less than the existence of a prima faciecase, proof on a balance of probabilities or the standard required for a conviction (see R. v.

Debot, (SCC), [1989] 2 SCR1140 at 1166; R. v. Shinkewski, 2012 SKCA 63 at para. 13; and R. v. Jacob (JA), 2013 MBCA 29 At para. 34). As was explained inMusgera v Canada (Minister Of Citizenship and Immigration), 2005 SCC 40, “reasonable grounds will exist where there is an objectivebasis for the belief which is based on compelling and credible information” (at para. 114).

ANALYSIS Garofoli Review [13] To issue the search warrant sought by the affiant, the issuing JJP had to have reasonable grounds to believe that the places wherepolice applied to search contained anything on or in respect of which an offence has been or is suspected to have been committed;anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence or thewhereabouts of an offender; anything there are reasonable grounds to believe is intended to be used to commit an offence; or anyoffence-related property (Section 487 CCC). [14] It is important to bear in mind the offence alleged by the affiant was possession of property obtained by crime under a value of$5000.

The context – a complex and evolving interprovincial investigation – ought also to be borne in mind. Officers preparing searchwarrant applications in cases involving stolen firearms out in the community and potentially in the hands of known gang members do sounder time constraints. Perfection in drafting will rarely be possible. [15] All dates referred to are in 2018 unless otherwise specified. [16] The ITO in support of the warrant disclosed the following information relevant to

section 487 CCC: - On May 17 a housekeeper at an Edmonton hotel found a handgun left behind in room 318 (interview by affiant ofhousekeeper); - Room 318 was reserved in the name of Chris Flamant; Sheena Jones [Jones] was noted on hotel documents as a guest with

arrival date of May 16 and departure date of May 17 (interview by affiant of hotel general manager); - CCTV recording from hotel shows individuals who registered for room and Jones provided photo identification when she registered (interview by affiant of front desk clerk); - Serial number on handgun searched in firearms registry – not listed as stolen – last registered to Grant Hooke of Brandon (police investigation); - Background check on Flamant reveals association with firearms in 2018 and 2013 (police investigation); - Grant Hooke did not sell the handgun; did not know it was missing until police told him it was found in Edmonton; suspects his son Chad Hooke stole it because he knows how to access Grant Hooke’s firearms collection; was at Grant Hooke’s residence on May 14; borrowed a Ford F150 truck for a trip to Edmonton for a job interview (BPS interview of Grant Hooke); - Chad Hooke’s wife is Jones (BPS interview of Grant Hooke); - Chad Hooke and Jones are known drug-users in Brandon (BPS officer); - Facebook photos of Chad Hooke and Jones match individuals on CCTV recording from Edmonton hotel where handgun located (affiant investigation); - No suitable fingerprints obtained from firearm (EPS investigation); - Grant Hooke inventoried his gun collection and determined 17 firearms are missing; Chad Hooke is back in Brandon; Grant Hooke reported his F150 truck stolen by son Chad Hooke’s friend who accompanied him to Edmonton (Grant Hooke reports to BPS and EPS); - Chad Hooke told Grant Hooke his friend “Matt” stole the firearms after learning Chad Hooke had access; “Matt” took the firearms to Edmonton and took the Ford F150 from Chad Hooke in Edmonton; Chad Hooke and Jones are consistent cocaine users (telephone interview of Grant Hooke by affiant); - Flamant lived at 11933 St Albert Trail in Edmonton with girlfriend “Celine” and on May 3 a vehicle was parked at the residence that was involved in a traffic stop in February wherein a sawed off shotgun was located by police (EPS investigation); - Review of Edmonton Hotel CCTV footage shows that after Jones and Chad Hooke registered for hotel room 318, they returned to the truck in the parking lot and then four people including Jones and Chad Hooke (two males and two females) left the Ford F150 truck and attended into the hotel (investigation by affiant); - Jones admits being at the Edmonton hotel with Chad Hooke; room was reserved for them by Flamant; she knows Flamant is a gang member who goes by alias “Smokey” and she knows he has a storage locker near his house where he stores guns and drugs; Chad Hooke met up with Flamant during the night of May 16 when they were staying at the hotel (BPS cautioned interview of Jones; EPS investigation corroborates Flamant alias of “Smokey”; status as high ranking council member of Redd Alert gang; and rental of storage locker proximate to his residence); - Jones says Flamant kept the Ford F150 truck for reasons unknown to her (Jones to BPS investigator); - The two individuals seen at the Edmonton hotel with Jones and Chad Hooke are believed to be Harkness and Plamondon (BPS officer – unspecified source but viewed in context of paragraph 61 (a)-(

c) reasonable to infer the source of info in (a)-(

c) is Jones); - Chad Hooke would not admit to anything but blames his father for not locking the house in which his firearm collection is stored; Plamondon and Flamant kept the Ford F150 for reasons unknown to him; the four people who stayed in the Edmonton hotel room were himself, Jones, Harkness, and Plamondon; and Plamondon and Harkness slept in the bed where the handgun was located (BPS interview of Chad Hooke); - When shown a photo of the accused, Chad Hooke said it might be “Matt” (BPS interview of Chad Hooke); - Jones tried to contact Plamondon to get the Ford F150 truck back; Plamondon thanked her for wrecking his life; told her the gun was left in the hotel room; Flamant will go back to jail because he is out on bail; Flamant’s gang is going to kill her; Plamondon would not return the truck to her; Jones knows there are guns missing from Grant Hooke’s collection; “Matt said he is not coming home until he gets to the locker”; the locker belongs to Plamondon, is near his residence, and contains guns and drugs; Jones has not been to the locker (BPS interview of Jones); - Jones contacted Chad Hooke who told her he was no longer with Plamondon and to pick him up in Sherbrooke (BPS interview of Sheena Jones); - Sherbrooke is area of Edmonton in which Flamant is believed to reside (EPS investigation); - May 23 - Flamant comes and goes from residence at 11933 St Albert Trail and appears to move personal items including mirrors, bags, and a suitcase with clothes hanging out of it to a residence at 10616-107 th Street (EPS surveillance); - May 24 - a Black Nissan Sentra is parked at 11933 St Albert Trail; Plamondon and Harkness are observed leaving 11933 St Albert Trail; further observations of Plamondon outside the residence on his cell phone, walking around outside, smoking (EPS surveillance and identification of Plamondon and Harkness by comparison to photographs, hotel CCTV footage, and surveillance photos);

- May 24 at approximately 7:30PM an unknown male leaves the residence and drives away in the Nissan Sentra, returning atapproximately 9:00PM (EPS surveillance); - May 24 at approximately 8:15PM a White BMW pulls up at the St Albert Trail address and Plamondon speaks to the driver;the BMW drives away (EPS surveillance); - May 24 at approximately 9:55PM Plamondon carries a black bag and a reusable black bag out to the Nissan Sentra; there issomething white sticking out of the top of the reusable bag; the trunk of the vehicle is further loaded with a Goodlife red duffle bag andanother black duffle bag; the vehicle leaves 11933 St Albert Trail with Plamondon, Harkness, and another male in the vehicle (EPSsurveillance); - May 24 at approximately 10:30PM the Nissan arrives at McDonald’s restaurant; Plamondon and Harkness attend inside therestaurant; Plamondon carrying a white grocery bag; Plamondon and Harkness are at a table with two males described as “MiddleEastern”; Plamondon doing something under the table; Plamondon showing the two males his phone screen and it appears the males areasking questions about what Plamondon is showing them; there is discussion about how to make a transaction and Plamondon mentionsa $15,000 loan; Plamondon and one of the males exit the restaurant, smoke, and Plamondon observed waiving his arms duringdiscussion; at approximately 11:30PM the four exit McDonalds and have further discussion during which Plamondon shows somethingon his phone to the two males (EPS surveillance – affiant’s opinion in ITO is this is consistent with a pending transaction); - At 11:39PM Plamondon and Harkness get into back seat of Black Chevrolet Cavalier and drive away from McDonald’s withthe two males in the front driver and passenger seats and attend to 10616-107 Street where Plamondon is observed on his phone outsidethe residence; a Black Nissan pulls up; Plamondon and an unknown male purchase liquor from a nearby liquor store and return inside10616-107 Street (EPS Surveillance); - May 25 1:07AM Plamondon exits 10616-107 Street, gets into a Chevrolet with BC license plate and drives to the area of 11933St Albert Trail; at 2:00AM the Chevrolet left 11933 St Albert Trail and drove back to 10616-107 Street and at 2:12AM three males areobserved at doors to 10616-107 street with the red Goodlife duffle bag (EPS surveillance); - Plamondon, Harkness, and Flamant photographed by surveillance officers through window for 201-10616-107 Street (EPSsurveillance); - Flamant was renting storage locker at Access Storage 14630-128 Avenue under name “Nancy Jones” commencing in Februaryof 2018; locker accessed twice on May 15 and then disabled on May 18 by company due to nonpayment and double locked by companyon May 20; Flamant requested access on May 20 and was told to settle the payment issue first; Flamant had not responded at time of ITO(EPS investigation; interview of storage company manager). [17] The defence argument in support of its attack on the sufficiency of the ITO is largely an invitation to dissect and analyze theinformation in the ITO on a piecemeal basis. [18] The allegation that the affiant relied on unsourced information is without merit.

While the affiant could at times in the ITO havebetter spelled out the source of the information, reasonable inferences can be drawn as to their source. Two examples follow. [19] Paragraph 28 falls under the heading “Overview” so it is

summary in nature but it is the only reference in the ITO to Chad Hookeand Jones picking up Plamondon and Harkness in Saskatchewan. When the last sentence of paragraph 28 is read in the context of theentire paragraph and in reference to the ITO as a whole, it is clear the affiant is referencing information provided by Grant Hooke and itis reasonably inferred Grant Hooke relies on information provided to him by his son.

The information is not unsourced and its limitationsin terms of reliability where it relies on hearsay would have been apparent to the JJP. [20] Paragraph 61 refers to information provided by BPS Sargent Conway following from an interview with Jones. Subparagraph (c)read in isolation does not identify the source of the information but when read in the context of paragraph 61, it is reasonably inferredthat the information in subparagraphs (a), (b), and (

c) all flowed out of the interview of Jones. [21] The applicant argues Grant Hooke and more particularly Chad Hooke and Jones are effectively informers of unknown orquestionable credibility and reliability. The defence characterizes much of the information they provided as mere rumor, speculation, orakin to “tips” such that their information should be subject to the same type of scrutiny as is applied to confidential informants andanonymous tips. Reasonable grounds is otherwise described as credibly-based probability.

A consideration of the credibility andreliability of sourced information is part of the issuing justice’s assessment of an ITO. The concerns associated with unidentified sourcesof information that arise with confidential informers and anonymous tips do not exist in this case. [22] The affiant apprised the JJP of the sources of his information. While he appropriately listed Grant Hooke as a civilian witness atpage 4 of the ITO, he did not characterize Chad Hooke and Jones as such.

It would have been apparent to the JJP reviewing the ITO thatChad Hooke and Jones were known drug users; were implicated in the theft and possession of the stolen firearms; were not fullyforthcoming in the information they provided to police; and had motive to mislead or withhold information. It would also be open to theJJP based on the available information in the ITO to conclude that both were intimately involved with events related to the stolenfirearms and truck as well as with Plamondon and Flamant. Important aspects of the information they provided police were corroboratedby police investigation.

It would be obvious to the JJP that Jones and, to a lesser extent, Chad Hooke made admissions against their owninterest when interviewed by BPS. [23] The information in the ITO all came from identified sources. The JJP had information from which to draw inferences and formreasonable beliefs about the reliability of the information and the credibility of the sources. [24] The defence urged the court to assess information from Chad Hooke and Jones through a “Vetrovec” filter (R. v. Vetrovec (SCC), [1982] 1 SCR 811).

The crown disagreed saying to do so ignores the distinction between the investigative phase of acase and the ultimate trial assessment of proof beyond a reasonable doubt. An exhaustive analysis is unnecessary. The JJP had

appropriate information in the ITO from which she could assess the information sourced to Jones and Chad Hooke. [ 25 ] The applicant contends that a substantial portion of the ITO references behaviour by the accused that is of a totally innocent nature, specifically in reference to talking on the phone outside the St Albert Trail residence and showing the males at McDonald’s his phone. The defence points to the case of R. v. Campbell 2003 MBCA 76 . The case is distinguishable.

It dealt with a tip from an unidentified informant and a concern about whether the corroborating information related to totally innocent facts. Looking at the ITO as a whole, it was open to the JJP to reasonably believe the accused’s use of his cell phone outside the St Albert Trail residence and at the McDonald’s was for the purpose of facilitating a transaction involving the stolen firearms. It was not the only inference available to the JJP but it need not be the only available inference. [ 26 ] The applicant asserts the affiant made “overreaching” statements in the ITO.

For example, he argues the affiant over-stated Mr. Plamondon’s association with the residences in the search warrant when he described him as going back and forth between the residences multiple times. The argument is without merit.

The ITO references in detail the observations by surveillance officers and the JJP was in a position to form her own conclusion from that detailed information. [ 27 ] Having reviewed the evidence available to the JJP in the whole of the ITO and having considered the reasonable inferences that could be drawn from that evidence, I can come to no decision but that there was a basis upon which the authorizing JJP could conclude on the totality of the circumstances that the statutory prerequisites existed for the warrant that was issued.

There was a sufficient nexus between the accused and the locations to be searched to justify the issuance of the warrant. There was similarly a satisfactory connection between the accused’s cell phone and the possession of stolen property allegation. The information from Jones concerning the communication between herself and the accused regarding the F150 truck links the cell phone to the stolen truck. The surveillance observations concerning the applicant’s use of his cell phone around the time of and during his meeting with the males at McDonald’s links the cell phone to the stolen firearms.

The JJP was alert to the insufficiency of grounds to search the Nissan Sentra arising from the removal of the suspect bag from that vehicle and appropriately declined to approve a search of that vehicle. [ 28 ] The warrant is presumed valid. The applicant did not meet his onus as to the facial attack on the ITO. The warrant was properly issued and the application to quash the warrant is dismissed.

The Cell Phone [ 29 ] Having determined the sufficiency of the ITO filed in support of the search warrant and the validity of the warrant, I turn to the defence assertion that the accused’s iPhone was searched without warrant in violation of the accused’s

section 8 Charter rights. [ 30 ] The warrant authorized the seizure of the cell phone and a search of its contents. [ 31 ] The accused has a subjective expectation of privacy in the electronic conversations and other contents of his iPhone and that expectation of privacy is objectively reasonable ( R. v.

Marakah 2017 SCC 59 ). [ 32 ] The seizure and search of the iPhone having been validly judicially pre-authorized, the question is whether police arresting the accused outside of any locations identified in the search warrant took the search outside the ambit of the warrant. [ 33 ] As part of the ongoing investigation and in anticipation of the issuance of a search warrant for 10616-107 Street, 11933 St Albert Trail, and potentially other locations, EPS established stationary surveillance teams at both residences as well as a mobile surveillance team.

Their objective was to arrest Plamondon and Harkness on outstanding warrants outside the residences when they could do so safely in conjunction with the plan to execute the search warrant. The JJP signed the search warrant at approximately 6:30PM. [ 34 ] At 6:32PM surveillance officers saw Plamondon and Harkness depart 10616-107 Street in a taxi. Mobile surveillance was initiated and the taxi was followed to a strip mall proximate to 11933 St Albert Trail where Plamondon and Harkness exited the taxi. Plamondon entered a liquor store in the strip mall.

When Plamondon left the store, he and Harkness were on foot headed north. Officers reasonably inferred they were going to 11933 St Albert Trail. Officers intervened and arrested them in the parking lot to prevent them from attending to and entering 11933 St Albert Trail. The time of arrest was 6:51PM. Police seized drugs and cell phones from Plamondon’s pockets in the context of a frisk search incident to arrest.

Plamondon and Harkness were subject to arrest on an outstanding warrant for possession of stolen property and Plamondon had an additional warrant for parole violation. [ 35 ] Officers testified during the voir dire to their concerns about executing the search warrant with the accused and others inside the residence. They suspected there were firearms inside so they had concerns for public safety as well as officer safety arising from potential discharge of firearms. They had fears about the preservation of evidence; more accurately preventing the destruction of evidence.

One of the officers testified he is aware of situations where suspects inside a residence dismantled firearms before police could get inside. Dismantling a firearm rendering it inoperable means it no longer meets the definition of a firearm pursuant to the Criminal Code . [ 36 ] Interestingly, when police attended to execute the search warrant at one of the residences after Plamondon and Harkness were arrested, Flamant was inside the residence; took a hostage; and a standoff ensued for several hours during which evidence appears to have been altered, thrown out a window, and destroyed by fire.

This speaks to the reasonableness of the police concern about destruction of evidence. [ 37 ] Typically where a cell phone is seized incident to arrest, police must then obtain a warrant if they wish to search its contents.

While on a technical assessment of the circumstances here, the iPhone was seized incident to arrest and not inside a designated search location, the seizure of the phone and search of its contents was specifically contemplated in the ITO and pre-authorized by the JJP. [ 38 ] The ITO in its closing paragraphs anticipated the need for tactical considerations in the execution of the warrant arising from officer and public safety concerns.

The issuance of the warrant and the arrest of the accused happened very close in time. [ 39 ] The safety concerns associated with execution of the warrant were reasonable and realistic. In addition to the concerns identified by

officers who testified, I note neither of the residences to be searched were single dwelling units, exacerbating potential risks to public safety. [ 40 ] The accused was arrested close to and seemingly en route to a residence where police were authorized by warrant to search. [ 41 ] For all of these reasons I am satisfied that the arrest of the accused and seizure of his cell phones were part and parcel of the execution of the search warrant.

Applying “the Collins test” I am satisfied the seizure and search of the applicant’s iPhone was authorized by law; that law was reasonable; and that the search itself was carried out in a reasonable manner – it was reasonable in all of the circumstances for police to arrest the accused outside the residence on St Albert Trail rather than waiting for him to enter the residence.

On the particular circumstances of this case, the seizure of the cell phone and search of its contents did not fall outside the ambit of the search warrant merely because the arrest and seizure were affected outside the residence. [ 42 ] There was no

section 8 Charter breach occasioned and the application to exclude the evidence obtained from the search of the accused’s cellphone is dismissed. [ 43 ] If I am wrong and a

section 8 breach was occasioned by the seizure of the accused’s phone outside the walls of a judicially pre- authorized search location, for all of the reasons above I am convinced the evidence obtained as a result of the breach would not be subject to exclusion pursuant to section 24(2) of the Charter . [ 44 ] Any breach occasioned would surely be considered technical in nature, explained if not justified by the dynamic nature of the investigation and legitimate concerns for safety and preservation of evidence. [ 45 ] The premature but inevitable arrest of the accused where pre-authorization existed for a seizure and search of the phone diminishes the impact on the accused’s Charter-protected interests and significantly reduces any risk of diminishing respect for Charter protected values. [ 46 ] Society’s interest in adjudication on the merits would strongly favour admission of the evidence.

CONCLUSION [ 47 ] The applications to quash the search warrant; declare a

section 8 Charter breach; and to exclude evidence are dismissed. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta