R. v. Stinson, 2017 NLCA 60

Rhodey Mark Stinson (appellant) v. Her Majesty the Queen (respondent) (14/53) Indexed As: R. v. Stinson 2017 NLCA 60 2 C.A.N.L.R. 239 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Welsh and White JJ.A. October 11, 2017

Summary: The appellant, Rhodey Stinson, appealed his convictions for possession of marihuana and cocaine for the purpose of trafficking, possession of contraband tobacco, and careless storage of ammunition on the grounds that the trial judge erred in dismissing his application to cross-examine the police officer who drafted the information to obtain a search warrant, not finding that the search of the premises contravened

section 8 of the Canadian Charter of Rights and Freedoms , and not finding that a statement to police was involuntary or based on an infringement of

section 7 or 10 of the Charter and therefore inadmissible. Held: Appeal dismissed. Welsh J.A. (Green C.J.N.L. and White J.A. concurring): The trial judge’s determination of whether the proposed cross-examination of a police officer on an information to obtain is reasonably likely to elicit evidence of probative value to the issues for consideration involves an exercise of discretion. The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised.

The appellant’s proposed grounds for cross-examination were the officer’s reliance upon and the reliability of the information provided by some of the sources; the use of “boilerplate” language in the information to obtain; and the omission of information about surveillance conducted throughout the investigation which the appellant argued amounted to a lack of full and frank disclosure. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence.

A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization. When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted. In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant.

However, 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. Mr. Stinson pointed to minor errors or omissions regarding the histories of the various informants. The trial judge was satisfied that the alleged errors were not sufficient to meet the test for leave to cross-examine the affiant. The trial judge considered Mr.

Stinson’s submissions and reviewed the evidence in the information to obtain the search warrant as a whole. He applied the correct legal test. There is no basis on which to conclude that the trial judge failed to exercise his discretion judicially in refusing to grant leave to cross- examine the affiant. Mr. Stinson submitted that the search warrant could not be relied upon due to errors in the information to obtain the warrant and the failure to comply with relevant provisions of the Controlled Drugs and Substances Act .

A reviewing judge must ask whether the accused has shown that there was no justifiable basis according to law upon which the authorizing judge could have granted the warrant. The information to obtain a warrant should not be parsed but must be read as a whole.

The trial judge exercised his discretion in determining that some discrepancies, which arose from information later provided in theCrown’s disclosure, did not lead to the conclusion that the issuing judge had been misled and did not undermine the validity of thewarrant. He concluded that the information to obtain the warrant was sufficient to provide a justifiable basis according to law uponwhich the authorizing judge could have granted the warrant. There is no basis on which to find that the trial judge erred in making thatdetermination.

Section 11(1) of the Controlled Drugs and Substances Act provides for a judge to issue a search warrant for purposes of investigationsunder the Act. Proceeding by way of a telewarrant is authorized under section 11(2) when it would be impractical for the person seekingthe warrant to appear in person before an issuing judge, but an information submitted by telephone or other means of telecommunicationmust include a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice.

The trial judge concluded that the affiant used the wrong forms and consequently that had been a breach of

section 8 of the Charter. Henonetheless found the breach was technical, not substantive in nature, and that, applying section 24(2) of the Charter, the evidence wasadmissible. The trial judge did not err in finding the evidence admissible. The failure to specifically state the circumstances that made it impracticalto appear personally before an issuing judge was not a serious infringement of

section 8 of the Charter. It did not send a message thatindividual rights count for little. Society has an interest in adjudication of this case on its merits. Mr. Stinson also submitted that the failure to mention the denial of a tracking warrant was fatal to the validity of the search warrantbecause this omission amounted to a failure to disclose relevant information. Although

section 487.1(1) requires disclosure of othersearch warrants, no mention is made of other types of warrants. It may be inferred that Parliament recognized the particular relevance ofother search warrants, leaving other types of warrants to be considered in the context of a particular situation. The trial judge wassatisfied that the issuing judge had sufficient information on which to issue a search warrant and there is no basis on which to concludethat the trial judge erred in the exercise of his discretion. As for the admissibility of the statement, Mr.

Stinson submits that the trial judge erred generally by failing to give separate reasons forhis decisions regarding the issues of voluntariness and sections 7 and 10 of the Charter. This submission must be rejected. The judgemade the factual findings and legal determinations necessary to decide whether Mr. Stinson’s statement was voluntary and whether hisCharter rights were violated. Under

section 7, it would be necessary for Mr. Stinson to establish on a balance of probabilities that his right to silence was infringed inthe absence of compliance with the principles of fundamental justice. The findings of fact made by the trial judge do not support such anargument. The trial judge found that Mr. Stinson had been given his right to counsel and the police caution at the time of his arrest. Hewas told at that time that the charges were for trafficking in illegal drugs. The judge also found as a fact that there had been no evidenceof threats or inducement.

He was satisfied that a secondary caution before the police interview was not required as there had been nochange in Mr. Stinson’s jeopardy, that he was not confused about what charges he faced, and that he understood that he was speaking toa police officer and that what he said in the interview could be used in evidence. Nor did the police officer’s failure to tell Mr. Stinsonthat his statement was being audio and video taped, affect the voluntariness of his statement. Mr. Stinson would have assumed that whatwas said would be recorded in some way. Mr. Stinson’s submission under

section 10 of the Charter is the same as under

section 7 and is also belied by the findings of the trialjudge who made the necessary findings of fact and considered the relevant legal principles. There is no basis on which to conclude that the trial judge erred in determining that Mr. Stinson’s statement to the police officer wasvoluntarily made. The trial judge found as a fact that there was no evidence of a threat or inducement regarding Mr. Stinson’s decision togive a statement. There was no other basis, on the facts, to support a conclusion that the statement was not voluntary. The trial judge did not err in concluding that Mr.

Stinson’s statement to the police officer was made voluntarily and that his rights undersections 7 and 10 of the Charter were not infringed. There also being no errors in the judge’s analysis respecting the search warrant andthe denial of leave to cross-examine, there is no basis on which to interfere with his ruling. The appeal was dismissed. Cases cited: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 R. v. Bisson, (SCC), [1994] 3 S.C.R. 1097

R. v. Whalen , 2015 NLCA 7 , 363 Nfld. & P.E.I.R. 289 R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 R. v. Sinclair , 2010 SCC 35 , [2010] S.C.R. 310 R. v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3 Counsel: Erin K. Breen, for the appellant; Brenda P. Boyd Q.C., for the respondent. This appeal was heard on May 17, 2017 before Green C.J.N.L., Welsh and White JJ.A.

The following judgment was delivered on October 11, 2017 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] Rhodey Stinson was convicted of possession of marihuana and cocaine for the purpose of trafficking, possession of contraband tobacco, and careless storage of ammunition. He was sentenced to three years imprisonment and ordered to pay certain fines. Mr. Stinson appeals his convictions. At issue are the right to cross-examine on the information to obtain a search warrant, whether the search of the premises contravened

section 8 of the Canadian Charter of Rights and Freedoms , and whether a statement to police should have been ruled inadmissible as involuntary or based on an infringement of

section 7 or 10 of the Charter . While Mr. Stinson indicated in his notice of appeal that he also sought to appeal against his sentence, he did not pursue that appeal, having made no written or oral submissions on that issue. (Note: The Court was advised that the significant delay in proceeding with the appeal, acceded to by the Crown, was primarily attributable to health issues experienced by Mr. Stinson.) BACKGROUND [ 2 ] On February 20, 2009, pursuant to a telewarrant to search premises occupied by Mr. Stinson, a search was conducted and items were seized. Mr.

Stinson was charged with possession of marihuana and cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act ; possession of contraband tobacco contrary to

section 68.1(1) of the Tobacco Tax Act , RSNL 1990, c. T-5; possession of tobacco for which duty had not been paid contrary to section 32(1) of the Excise Tax Act , R.S.C. 1985, c. E- 15; and careless storage of ammunition contrary to section 86(1) of the Criminal Code . [ 3 ] In oral decisions in 2012, the trial judge dismissed applications by Mr. Stinson in which he challenged the validity of the telewarrant under

section 8 of the Charter , sought to cross-examine the police officer who drafted the information to obtain the warrant, and challenged the admissibility of a statement he gave to police on the basis of voluntariness and that his rights under sections 7 and 10 of the Charter had been infringed. ISSUES [ 4 ] The issues are considered as follows:

(1) Cross-examination of the affiant of the information to obtain the search warrant, including (

a) the standard of review on appeal, and (

b) leave to cross-examine;

(2) Validity of the search warrant, including (

a) the effect of alleged errors and omissions in the information to obtain the warrant, (

b) use of a telewarrant, and (

c) non-disclosure of other warrant applications; and

(3) Admissibility of the statement, including (

a) section 7 of the Charter , (

b) section 10 of the Charter , and (

c) voluntariness. ANALYSIS The Search Warrant [ 5 ] Mr. Stinson submits that the trial judge erred by failing to take into account a number of alleged errors, contradictions, omissions, and boilerplate language in the information to obtain the search warrant. He submits that, on this basis, he should be permitted to cross-examine the affiant. In any event, he submits that the contradictions, errors and omissions that came to light in the disclosure subsequently provided by the Crown called into question the basis for granting the search warrant. Cross-examination on the Information to Obtain the Search Warrant

[6] In February 2010, Mr. Stinson applied for an order allowing him to cross-examine the police officer who drafted the informationto obtain the search warrant. The bases for his request were: 1. The officer’s reliance upon and the reliability of the information provided by sources “A” to “H”; 2. The use of “boilerplate” language in the information to obtain the warrant, the process used to record the information from thesources, and the accuracy of that information; 3.

The requirement for full and frank disclosure to the issuing judge, and in particular, “the omission of surveillance conductedthroughout the investigation and in particular on dates on or about when Source tips were received and the omission of the prior judicialauthorizations that were sought and granted or sought and denied, and specifically the denial of Judge Whiffen …” 4. “Such other issues as may arise during cross-examination if leave is granted”. [7] In his oral decision denying the application, the trial judge concluded: With respect to issue number one, in the present case, the application for a telewarrant listed seven sources of information, includinginformation from sources up to and including the day before the warrant was issued.

The issue concerning the sources was not correct inas much as it was not specific as to the number of times sources gave information to the police and also that it wasn’t disclosed that somesources have given information at other times. While this may be true, it is not in itself grounds to cross-examine the affiant. There isnothing contained in the information to obtain that could be characterized as misleading the justice who issued the warrant. … … The defence speaks of the use of boilerplate language. I fail to see how this is an issue.

There are no authorities cited to discredit theuse of this type of language. At worst, repetitive phrases are used to describe how the affiant gathered his knowledge included in theinformation to obtain. There is no argument that the language is misleading or confusing. … Ms. Breen discusses the issuance of previous judicial authorizations that were sought and either granted or denied. These previousmatters include an application for a production order and an application for a tracking warrant, the latter being denied.

There is noevidence that there were any previous applications for a search warrant in this matter. … … With respect to the omission of surveillance or dates, the information to obtain gives, for the most part, particular dates, specifically thedates of the most recent information … [T]he failure to disclose particular surveillance; this does not invalidate the information.

Theissuing justice has to be satisfied that there are reasonable and probable grounds made out in the information to obtain, which obviouslywas the case here. … The trial judge concluded: Based on the information supplied by the applicant and the authorities before me, I find the applicant has not shown the basis that cross-examination of the affiant will elicit testimony tending to discredit any preconditions of the authorization. As such, the application isdenied. Standard of Review [8] The applicable standard of review on appeal in these circumstances is set out in R. v. Pires; R. v.

Lising, 2005 SCC 66, [2005] 3S.C.R. 343. Charron J., for the Court, emphasized the discretionary nature of the trial judge’s decision when determining whether leaveshould be given to cross-examine the affiant of an information to obtain a warrant, in that case, a warrant for a wiretap: [46] On reviewing a trial judge’s decision to permit or deny leave to cross-examine, an appellate court is not entitled to simplysubstitute its view for that of the trial judge.

The trial judge’s determination of whether the proposed cross-examination is reasonablylikely to elicit evidence of probative value to the issues for consideration involves an exercise of discretion. … The need for adeferential standard of appellate review was recognized in Garofoli [ (SCC), [1990] 2 S.C.R. 1421]. Sopinka J. statedthat “[t]he discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judiciallyexercised” (p. 1465). [47] This deferential standard is important.

If not adhered to, trial judges, out of an abundance of caution, are likely to embark uponmany unnecessary hearings rather than risk vitiating an entire trial. The trial court’s power to control the proceedings then becomesmore illusory than real and, in the context of a Garofoli hearing, the very purpose of the leave requirement is defeated.

Leave to Cross-Examine [9] In Pires, Charron J. addressed the rationale underlying the requirement for leave to cross-examine the affiant of an informationto obtain a warrant: [3] … The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant willelicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two basic principles ofevidence: relevance and materiality. It is also born out of concern about the prolixity of proceedings and, in many cases, the need toprotect the identity of informants.

The rule does not infringe the right to make full answer and defence. There is no constitutional rightto adduce irrelevant or immaterial evidence. Further, the leave requirement strikes an appropriate balance between the entitlement tocross-examination as an aspect of the right to make full answer and defence, and the public interest in the fair, but efficient, use of

judicial resources and the timely determination of criminal proceedings. (Emphasis added.) Again referring to the decision in Garofoli , Charron J. explained: [ 10 ] … With respect to the affiant, the Court recognized the need to circumscribe the cross-examination within reasonable limits. First, there would need to be a threshold showing of a basis for embarking on an enquiry and second, when permitted, the cross-examination should be confined to questions directed to the issue for consideration by the court.

Sopinka J. described the test as follows: … Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization , as for example the existence of reasonable and probable grounds.

When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted. The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised.

While leave to cross-examine is not the general rule, it is justified in these circumstances in order to prevent an abuse of what is essentially a ruling on the admissibility of evidence. [p. 1465] (Emphasis added.) [10] Charron J. specifically addressed questions related to the credibility or reliability of an informant: [41] In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant.

However, 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. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false.

That fact does not retroactively invalidate what was an otherwise valid authorization. [ 11 ] In Pires , Charron J. quoted from the decision in Garofoli as an example of circumstances that may support granting leave to cross-examine an affiant: [42] The fact situation in Garofoli itself provides a good example of a situation where the proposed cross-examination was directed not only at the lack of credibility of the informant but at the affiant’s likely awareness of that fact.

The informant alleged that he had been approached by Garofoli and another individual in Hamilton with an offer to supply him with two kilograms of cocaine. In his affidavit, Garofoli stated that he lived in Florida at the relevant time. He further stated that the officer in charge of the case was well aware that he was living in Florida and that he only travelled back to Hamilton in connection with his court appearances. Furthermore, information from the informant person was critical to establishing the requisite reasonable grounds.

Sopinka J., for the majority, found that the appellant had shown a basis for the cross-examination: In my opinion, the appellant has shown a basis for the cross-examination here.

In view of the degree of reliance by the police on the informant in this case, if the informant is discredited then the factual basis for the authorization is undermined. … If the police were not warranted in their belief that the information was true, then the basis for belief that a crime was to be committed disappears. … [ 12 ] Charron J. then reiterated the scope of cross-examination when leave has been granted: [45] As stated in Garofoli , when leave to cross-examine is granted, “the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted” (p. 1465). … [ 13 ] In this appeal, the information to obtain the warrant begins with information on the affiant’s relevant education and experience as a police officer, including “handling confidential human sources”.

Paragraph 2 provides an overview: Over the past several years it has been determined that Rhodey Stinson … has been selling cannabis marihuana and cocaine from his residence. He is well known locally as one of the biggest suppliers in the area. Police officers have conducted surveillance in the area of Stinson’s residence.

Throughout this document, I will demonstrate through source information, physical surveillance, review of police investigation records, and discussions with police officers familiar with Rhodey Stinson that he is actively involved in the trafficking of cannabis marihuana and cocaine from his residence … . [ 14 ] The affiant then provides detail on the sources of information on which he relied. There were eight informants, sources “A” to “H”. The affiant sets out information he obtained from other police officers who had dealt with each of the informants.

The same information was sought and reported with respect to each informant, including: the name of the officer providing the information; the length of time the source had been an informant; the amount of police contact with the informant; whether the informant had a criminal record, used illegal drugs, and had been paid for information; whether the source’s information had assisted in obtaining convictions; whether the source had first-hand knowledge of the alleged illegal activity; whether information had been corroborated; whether the police officer believed the source to be reliable; and whether the informant was willing to testify in court. [ 15 ] The provision of this information for each source resulted in repetitious language.

Indeed, the affiant states that he “drafted this Information to Obtain in a pre-edited style” (paragraph 6). The trial judge did not find this to be problematic and did not find the language to be misleading or confusing. [ 16 ] After describing the basis for his reliance on sources “A” to “H”, the affiant set out the history and chronology of the

investigation. This included detailed information regarding drug-related activity as reported on particular dates by the various sources aswell as incidents of corroboration. Reference was also made to police surveillance activities. [17] Mr.

Stinson’s counsel filed a chart in which, under the title, “Specific conflicts or clarification required [with respect to] theindicia of reliability of the sources – information not before the issuing justice but since disclosed”, she identified instances that shesubmits were errors or failures by the affiant to disclose facts. [18] As explained in Pires, at paragraph 41, the fact that information may later be shown to be in error “is not likely to be usefulunless it can also support the inference that the affiant knew or ought to have known that it was false”.

The issuing judge is entitled torely on the information available at the time. New information that suggests errors in some of the factual information “does notretroactively invalidate what was an otherwise valid authorization”. [19] In this case, eight confidential informants, sources “A” to “H”, provided information relied on in the information to obtain thewarrant. The affiant, the police officer who prepared the information to obtain the warrant, necessarily relied on information provided tohim by other officers who were the “handlers” for the various sources.

The information reported by each source was generallyconsistent with what the other sources said. In addition, the police had conducted surveillance of the house over some time,corroborating aspects of the informants’ information. [20] The affiant provided detailed incidents and occasions in January 2009 when sources “G”, “H”, “F” and “A” reported that Mr.Stinson had received deliveries of cocaine and was selling it from his house. Source “A” made such a report on January 8, 2009 andagain on February 2, 2009.

The final report, on February 20, 2009, which resulted in the officer applying for a search warrant, isdescribed in paragraph 43 of the information to obtain a warrant: On February 20th, 2009 I was contacted by Source “A” and Source “A” advised me that: a. [redacted] dropped off “coke” to Rhodey Stinson at Rhodey’s house [redacted]. b. Was at the residence [redacted] when Stinson sold cocaine. c. Source “A” saw cocaine today at Stinson’s residence. [21] Mr. Stinson pointed to minor errors or omissions regarding the histories of the various informants.

The alleged errors in thechart, that is, differences between the information to obtain the warrant and information in the Crown’s disclosure, are: whether source“B” was known for ten months or six, whether there was contact with source “B” on several occasions or twice; whether source “C” hada criminal record and had never been paid or never paid for this investigation; whether source “D” had no criminal record or noconvictions for mischief or perjury; whether source “G” had never been paid or paid twice; and whether source “H” had never been paidor paid once. [22] The new information in the Crown’s disclosure, cited by Mr.

Stinson in the chart, is: source “A” provided information ontwenty-two occasions but was never relied on before for a warrant; source “E” gave information at least twelve times; source “F” gaveinformation more than ten times; and source “H” gave information more than ten times. Mr.

Stinson also refers in the chart to someinstances involving sources “G” and “F” where surveillance had been conducted but not included in the information to obtain the warrantor where there were mistakes in some details. [23] The trial judge was satisfied that the alleged errors were not sufficient to meet the test for leave to cross-examine the affiant; thatis, Mr. Stinson had failed to “show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value tothe issue for consideration by the reviewing judge” (Pires, at paragraph 3, paragraph 9, above).

Indeed, the trial judge concluded hisdecision on this issue by stating that the “issuing justice has to be satisfied that there are reasonable and probable grounds made out in theinformation to obtain, which obviously was the case here” (emphasis added). [24] In

summary, the trial judge considered Mr. Stinson’s submissions and reviewed the evidence in the information to obtain thesearch warrant as a whole. He applied the correct test as set out in Pires and Garofoli. There is no basis on which to conclude that thetrial judge failed to exercise his discretion judicially in refusing to grant leave to cross-examine the affiant. Validity of the Search Warrant [25] Mr.

Stinson also submits that the search warrant could not be relied upon due to errors in the information to obtain the warrantand the failure to comply with relevant provisions of the Controlled Drugs and Substances Act. Effect of Alleged Errors in the Information to Obtain the Warrant [26] Regarding the first issue, alleged errors, the judge referred to his earlier decision refusing cross-examination of the affiant andconcluded that “there was nothing contained in the information to obtain that could be characterized as misleading the justice who issuedthe search warrant”.

He relied on the decision of the Court in R. v. Bisson, (SCC), [1994] 3 S.C.R. 1097, at page 1098: …The trial judge found that the affidavit material presented to the authorizing judge contained an error of non-disclosure relating to theretraction of Eric Lortie, a failure to state his age, and an error in including him as a target and accomplice. Having found such errors, thetrial judge proceeded to vitiate the wiretap authorization finding that the police officer deliberately misled the authorizing judge. In sodoing, the trial judge fell into error. As stated in R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, errors in the information presented to the authorizing judge,whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselveslead to automatic vitiation of the wiretap authorization as was done by the trial judge. The trial judge should have examined theinformation in the affidavit which was independent of the evidence concerning Eric Lortie in order to determine whether, in light of his

finding, there was sufficient reliable information to support an authorization. Proulx J.A., writing for the Quebec Court of Appeal, (QC CA), [1994] R.J.Q. 308, 87 C.C.C. (3d) 440, 60 Q.A.C. 173, carefully reviewed and analyzed the affidavit afterexcluding the paragraphs directly affected by the retraction. On the basis of this analysis, we are satisfied that there was sufficientindependently verifiable information which was not affected by the trial judge’s finding and upon which an authorization couldreasonably be based. [27] Similarly, in R. v.

Garofoli, supra, at page 1452, Sopinka J., for the majority, wrote: … If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that theauthorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is todetermine whether there continues to be any basis for the decision of the authorizing judge. See also: R. v. Pires; R. v.

Lising, supra, at paragraph 8. [28] More recently, in this Court, in R. v. Whalen, 2015 NLCA 7, 363 Nfld. & P.E.I.R. 289, Barry J.A., for the Court, explained: [18] In reviewing whether a Provincial Court judge properly issued a search warrant, a reviewing judge must ask whether the accusedhas shown that there was no justifiable basis according to law upon which the authorizing judge could have granted the warrant.

In thepresent case this question comes down to whether the accused has shown that the authorizing judge did not have sufficient credibleinformation before him to establish reasonable grounds to believe that drugs were being trafficked from the Whalen residence at the timeof issuing. (Emphasis added.) [29] Barry J.A. cautioned against “parsing and microscopically examining the words, phrases or paragraphs in isolation” (paragraph30).

Rather, the information to obtain a warrant must be read as a whole: [30] … The important thing was to assess the sufficiency of the information in the “totality of the circumstances”. [30] With respect to the use of information from an informant, Barry J.A. explained: [40] … (ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what thisentails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the “tip”; (

b) the informer’s source of knowledge; (

c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. … [31] Further, regarding corroboration, Barry J.A. reiterated: [47] It is not the law that police must always by independent investigation confirm the source information or provide corroboration ofit. … … [50] When assessing information from an informant, police surveillance often provides helpful corroboration.

However, courts must beconscious of the finite resources available to our police services and not require longer periods of surveillance than may be necessary toconfirm a tip is reliable. [32] In this case, having reviewed the relevant law and considered Mr. Stinson’s submissions, the trial judge concluded: … I have carefully reviewed the information to obtain, the comments of [Mr.

Stinson’s counsel] and the authorities provided and while Iagree with [counsel’s] submission that while there could have been more and better information given to the issuing justice and some ofthe information was dated, the information on the day the warrant was issued was extremely compelling and given that and the totalityof the information contained in the ITO, I am of the view that there was sufficient information to issue the search warrant. [33] In the result, the trial judge exercised his discretion in determining that some discrepancies, which arose from information laterprovided in the Crown’s disclosure, did not lead to the conclusion that the issuing judge had been misled and did not undermine thevalidity of the warrant.

He concluded that the information to obtain the warrant was sufficient to provide a justifiable basis according tolaw upon which the authorizing judge could have granted the warrant. There is no basis on which to find that the trial judge erred inmaking that determination. Use of a Telewarrant [34] Section 11(1) of the Controlled Drugs and Substances Act provides for a judge to issue a search warrant for purposes ofinvestigations under the Act.

Proceeding by way of a telewarrant is authorized under section 11(2): For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance

with

section 487.1 of the Criminal Code , with such modifications as the circumstances require. [ 35 ]

Section 487.1(1) of the Criminal Code provides for the issuance of a search warrant when it would be impractical for the person seeking the warrant to appear in person before an issuing judge: Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with

section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

Section 256 addresses warrants to obtain a blood sample and

section 487 deals with applications for search warrants. [ 36 ]

Section 487.1(4) of the Code specifies information to be included when a search warrant is sought by means of a telewarrant: An information submitted by telephone or other means of telecommunication shall include (

a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice; (

b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure; (

c) a statement of the peace officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and (

d) a statement as to any prior application for a warrant under this

section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge. [ 37 ] In this case, only paragraph (

a) requires consideration. The information to obtain the search warrant clearly satisfies the requirements of paragraphs (

b) and (c). Paragraph (d), read with subsection (1), applies only to search warrants. The trial judge’s finding that no other applications had been made for a search warrant was not challenged. (The issue of the non-disclosure of Whiffen P.C.J.’s denial of an application for a tracking warrant is discussed below.) [ 38 ]

Section 487.1(5) of the Code provides for issuance of a telewarrant: A justice referred to in subsection (1) who is satisfied that an information submitted by telephone or other means of telecommunication (

a) is in respect of an indictable offence and conforms to the requirements of subsection (4), (

b) discloses reasonable grounds for dispensing with an information presented personally and in writing, and (

c) discloses reasonable grounds, in accordance with subsection 256(1) or paragraph 487(1)(a), (

b) or (c), as the case may be, for the issuance of a warrant in respect of an indictable offence, may issue a warrant to a peace officer … [ 39 ] The trial judge concluded that the affiant used the wrong forms. He found: … Nonetheless, in the heading of his information to obtain there was reference to the fact that the officer was seeking a telewarrant and on the warrant that was issued, it was noted by the issuing justice that it was a telewarrant. However, by not strictly complying with the provisions of s. 487.1(4)(

a) there is a breach of the accused’s right under s. 8 of the Charter . [ 40 ] The judge then concluded that the breach of

section 8 of the Charter was technical, not substantive in nature, and that, applying section 24(2) of the Charter , despite the breach of

section 8 , the evidence was admissible. [ 41 ]

Section 8 of the Charter provides: Everyone has the right to be secure against unreasonable search or seizure. [ 42 ] Section 24(2) of the Charter addresses the admission of evidence where there has been an infringement of a guaranteed right: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 43 ] The trial judge concluded that Mr. Stinson’s right under

section 8 of the Charter was infringed because the search of the house had occurred without a valid warrant due to the failure to “strictly” comply with

section 487.1(4)(a). In his oral decision, the judge explained: In reviewing the documents as presented in the applicant’s pleadings, it is obvious that the issuing justice knew he was issuing a telewarrant to search the accused’s property and noted the same on the warrant. He satisfied himself that the affiant had the required information to ground the warrant. Thus, while the officer did not indicate why it was impractical to appear before the issuing justice, nor was it indicated on the warrant, the issuing jusice clearly noted that what he issued was the telewarrant. [ 44 ] With respect to the remedy, the trial judge accepted that the infringement of

section 8 was “technical and not substantive in nature”, and he concluded that “given the totality of the circumstances before me, I would allow the evidence gathered pursuant to the warrant to be admitted into evidence”.

[ 45 ] The trial judge did not advert to the section 24(2) test set out in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 , which is the governing judicial authority. It is necessary, then, to undertake that analysis in order to determine whether the trial judge erred by failing to exclude the evidence pursuant to the operation of 24(2) of the Charter .

The test set out in Grant has three prongs: [71] … When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter - protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. … [ 46 ] Regarding the first factor, seriousness of the Charter -infringing state conduct, the purpose of requiring a peace officer to state why he or she was relying on a telewarrant is to ensure that, where practical, the officer will appear personally before the issuing judge.

In this case, having considered the nature of the omission in all the circumstances, the trial judge assessed the infringement of

section 8 as technical and not substantive. The information to obtain the warrant and the circumstances do not suggest either an attempt to mislead the judge issuing the warrant or a conscious attempt to circumvent the requirements for a telewarrant. [ 47 ] Both the information to obtain a search warrant and the warrant were submitted not orally by phone, but in writing using a form marked “Pursuant to Section 11(2) of the Controlled Drugs and Substances Act (Telewarrant)”.

The documents were provided in writing by facsimile as is apparent from the information stamped by the machine at the top of each page: “FEB-20-2009 05:00PM FROM- MCU GANDER”, followed by the telephone number and the page number.

The search warrant, authorized by Porter P.C.J. and signed at Garnish, NL on February 20, 2009 at 5:30 p.m., indicates: This warrant is issued by a Judge by means of a telecommunication that produces a writing … [ 48 ] The record is clear that the officer seeking the warrant was in Gander, NL while the issuing judge was in Garnish, a distance, by road, of approximately three hundred kilometres. The application for the warrant was made on a Friday evening at 5:00 p.m.

While the officer did not indicate why the request was not made earlier or whether an earlier request would have permitted an application for the warrant in person, the information to obtain the warrant is lengthy, requiring information from several sources, and the triggering information from source “A” was received on the day the warrant was sought. [ 49 ] In particular, the officer, having obtained information from other officers, stated that he believed on reasonable grounds that cocaine would be found in the house, during the limited number of hours for which the warrant was sought, and that Mr.

Stinson was engaged in trafficking the drug. After setting out information from various of the sources regarding deliveries of cocaine to Mr. Stinson on several days in January 2009, the officer relied on information from source “A”, set out in paragraph 43 of his information to obtain the search warrant: On February 20th, 2009 I was contacted by Source “A” and Source “A” advised me that a. [redacted] dropped off “coke” to Rhodey Stinson at Rhodey’s house [redacted]. b. Was at the residence [redacted] when Stinson sold cocaine. c. Source “A” saw cocaine today at Stinson’s residence.

The warrant authorized a search for a very short period of time, 5:30 p.m. on February 20th to 11:30 a.m. on February 21st. [ 50 ] In

summary, considering the circumstances as a whole, the failure to specifically state the circumstances that made it impractical to appear personally before an issuing judge, as stipulated in

section 487.1(4) of the Code , was not a serious infringement of

section 8 of the Charter in the sense contemplated in the Grant analysis. [ 51 ] The second factor in the Grant analysis requires an assessment of “the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little)”. The failure by the officer to state the reason why it was impractical for him to appear personally to obtain the warrant could not be said to “send a message that individual rights count for little”.

The essential requirements for a search warrant, based on reasonable grounds, were set out in the information to obtain the warrant. [ 52 ] Regarding the third factor in the Grant analysis, society has an interest in adjudication of this case on its merits. There was significant information brought to the issuing judge to support granting of the warrant and from which an inference could be drawn that Mr. Stinson had been trafficking in marihuana and cocaine over a period of time. [ 53 ] In

summary, applying the Grant analysis, the conclusion follows that the trial judge did not err in refusing to exclude the evidence obtained as a result of the search of Mr. Stinson’s residence. Non-Disclosure of Other Warrant Applications [ 54 ] Mr. Stinson also submits that the failure to mention the denial of a tracking warrant by Whiffen P.C.J. was fatal to the validity of the search warrant because this omission amounted to a failure to disclose relevant information. The trial judge rejected this submission, drawing a distinction between a tracking warrant and a search warrant.

Further, I agree with the submission of counsel for the Crown that the following factors are relevant: - The application for a tracking warrant was made approximately two months before the request for a search warrant; - The information to obtain the search warrant included information from three additional informants together with specific details regarding information provided by the informants which was not included in the tracking warrant application (paragraphs 26 to 43 of the

information to obtain a warrant); - As accepted by the trial judge, the two applications were for different relief; - The trial judge was not misled by the omission of reference to the tracking warrant application; and - In the circumstances, the tracking warrant application was not material to consideration of whether the test had been met for granting leave to cross-examine the affiant who provided the information to obtain the search warrant. [ 55 ] Depending on the particular facts, information as to other applications for warrants, particularly where they had been refused, may be an important detail to disclose in an information to obtain a warrant.

However, it should be noted that, while

section 487.1(1) requires disclosure of other search warrants, no mention is made of other types of warrants (paragraph 38, above). It may be inferred that Parliament recognized the particular relevance of other search warrants, leaving other types of warrants to be considered in the context of a particular situation. [ 56 ] In this case, the trial judge was satisfied that the issuing judge had sufficient information on which to issue a search warrant; that is, when the warrant was issued, “there existed reasonable grounds to believe that: (

a) an offence was or will be committed and (

b) information concerning the offence will be obtained by the proposed [search]” ( Pires , at paragraph 65 ). [ 57 ] Given that determination and the factors listed above, there is no basis on which to conclude that the trial judge erred in the exercise of his discretion. The omission of reference to the application for a tracking warrant was not material and was not such as to undermine the validity of the search warrant or to support granting leave to cross-examine the affiant.

Admissibility of the Statement [ 58 ] In his oral reasons, the trial judge determined that, at approximately 6:30 p.m., the police had entered Mr. Stinson’s residence. He was brought to the kitchen table where “he was informed he was under arrest for trafficking and he was read his rights to counsel and police caution from the card”. Mr. Stinson was given the opportunity to speak to a lawyer before he was transferred to the police cells.

The judge accepted: Later that night of the arrest Officer Wheaton visited the accused in the cells at around 9:55 p.m. and gave the accused his rights to counsel and … he said he would have given him the police caution from the preprinted card as it is his practice. The accused asked for a drug lawyer and the constable informed the accused that a local lawyer, Juan O’Quinn, did drug defense work. The accused wanted to speak to Mr. O’Quinn and this call was arranged and … prior to this the officer told Mr.

O’Quinn the charges against the accused; namely, trafficking in cocaine, trafficking in marijuana, unsafe storage of ammunition and possession of illegal cigarettes. While the constable stated that this was said in the presence of the accused, he could not confirm that the accused heard the conversation. … Constable Wheaton said the accused was more polite and cooperative than most people he had dealt with and he said he made no promises or threats to the accused.

He said at 10:22 p.m. he again met with the accused and told him of the weights of the items seized being almost 24 ounces of cocaine and 71 grams of marijuana. He then called Mr. O’Quinn and relayed the same information and stated that [the weekend] court would be at 11:00 a.m. the next morning. [ 59 ] On Saturday, February 21, 2009, Mr. Stinson appeared in court by way of teleconference. The judge read the five charges to him. The matter, including the issue of judicial interim release, was then set over to Monday, February 23, 2009 at 9:30 a.m. [ 60 ] On Sunday afternoon, February 22, 2009, Mr.

Stinson was interviewed by the investigating officer. The interview lasted approximately thirty-five minutes and was audio and video taped. The officer initially engaged in a discussion with Mr. Stinson to ensure that he understood he was talking to a police officer and to verify that he had spoken earlier with a lawyer. He reiterated that anything Mr.

Stinson said may be used in evidence. [ 61 ] In considering the question of whether the statement was voluntary, the judge explained: With respect to the law – with respect to whether a statement by an accused is voluntary, the following cases as cited by the parties are relevant, R. v. Oickle , 2000 SCC 38 , R. v. Lamirande , and R. v. Guimond , 2002 MBCA 41 . To summarize, a statement to be voluntary must be made to a person in authority that is not induced by threats or promises or obtained by trickery. It is important that the total circumstances surrounding the taking of the statement be known.

The accused was arrested for trafficking in illegal drugs in his residence while he was the only one there. The police found 24 ounces of cocaine and 71 grams of marijuana, scales and a large quantity of cash [$4,395]. He was arrested for trafficking, given his rights to counsel and police caution, at that time. In his presence, his lawyer, Mr. O’Quinn, was told of the charges. In all, prior to [weekend] court Mr. Stinson spoke to legal counsel four times.

In [weekend] court, the judge summarized the five charges and in fact, was corrected by counsel that the charge was not for possession but possession for the purposes of trafficking. There is no evidence before the court that the accused was confused or did not understand that he was being held in custody on possession for the purposes of trafficking charges, possession of a very large quantity of illegal cigarettes and unsafe storage of ammunition. His jeopardy didn’t change from Friday night at the time of his arrest being the 20th of February to the time he gave a statement to the police on Sunday afternoon.

He was aware of all charges before him as of Friday night. Even if I am wrong on this, he was in the presence of a [weekend] court judge when he was informed of all the charges against him. This was on Saturday morning, the day before the interview. The police did not recite the secondary caution but informed the accused that he was talking to a police officer and anything he said could and may be used as evidence. Counsel for Mr. Stinson states that Mr. Stinson’s Charter rights were violated specifically,

section 7 and

section 10 rights. Ms. Breen

argues that Mr. Stinson was not given a proper secondary caution and was induced to give a statement and that he was not aware of all the charges against him at the time of the statement. The evidence does not support this position, nor have I been given any specific authority outlining what is a proper secondary caution, nor for the ramifications of a noncompliance. As stated above, Mr. Stinson was arrested for trafficking and given his rights to counsel and the police caution at the time of arrest. He was aware of the charges before him at [weekend] court and there is no evidence to support inducement.

It is clear the accused spoke to a police officer who informed him that anything he would say could be used as evidence. There is no requirement to tell Mr. Stinson he is being recorded. Mr. Stinson spoke clearly and openly and the discussion concerning the supplying of a belt was trivial. There is no evidence to support that he was induced to giving a statement over the promise of receiving a belt or clothing. In fact, except for the very beginning and the very end of the statement that took well over thirty minutes there was no issue – there was no discussion of clothing ever brought up.

There is no doubt in my mind that the accused gave a voluntary statement to a person in authority and for the reasons given above, there is no basis that the statement would not be entered into evidence as the defence has not established on balance that the accused’s Charter rights were violated. [ 62 ] Mr. Stinson submits that the trial judge erred generally by failing to give separate reasons for his decisions regarding the issues of voluntariness and sections 7 and 10 of the Charter . This submission must be rejected.

What is necessary is that the judge made the factual findings and legal determinations necessary to decide whether Mr. Stinson’s statement was voluntary and whether his Charter rights were violated. I turn, then, to a consideration of each issue.

Section 7 of the Charter [ 63 ]

Section 7 of the Charter provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 64 ] Under this provision, it would be necessary for Mr. Stinson to establish on a balance of probabilities that his right to silence was infringed in the absence of compliance with the principles of fundamental justice. [ 65 ] As set out above, the trial judge found that Mr. Stinson had been given his right to counsel and the police caution at the time of his arrest.

He was told at that time that the charges were for trafficking in illegal drugs. More detail on those charges was provided later that night. Also, after the search was conducted, charges related to contraband tobacco and unsafe storage of ammunition were laid, with all charges being read to him at the weekend court the following morning. The judge found that Mr. Stinson had been in contact with counsel four times and that his jeopardy had not changed before he gave his statement on Sunday afternoon.

The judge also found as a fact that there had been no evidence of threats or inducement. [ 66 ] Regarding the question of inducement, Mr. Stinson submits that the trial judge erred by failing to consider his requests for clothes and a belt for his appearance in court on Monday morning. As set out above, the judge did, in fact, consider that submission and rejected it, giving reasons. There is no basis on which to find that the judge erred in his determination. [ 67 ] Mr. Stinson also submits that the officer failed to give him a proper secondary caution prior to the interview.

In his testimony, the officer read the secondary caution written on the card he carries: You must understand that anything said to you previously should not influence you, nor make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier, you’re not now obliged to repeat, nor are you obliged to say anything further. Whatever you do say may be given in evidence. Do you understand what I said to you ? [ 68 ] The judge accepted that, prior to beginning the interview, the officer had ensured that Mr.

Stinson understood that he was speaking to a police officer and that anything he said could be used in evidence. [ 69 ] In submitting that the secondary caution was required, Mr. Stinson relies on R. v. Sinclair , 2010 SCC 35 , [2010] S.C.R. 310 . While that decision related to the right to further consultation with a lawyer under

section 10(

b) of the Charter , the principles relied upon by Mr. Stinson are summarized by McLachlin C.J.C. and Charron J., for the majority: [47]

Section 10(

b) should be interpreted in a way that fully respects its purpose of supporting the detainee’s s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so.

However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation. [48] … The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate. … [65] We conclude that the principles and case law do not support the view that a request, without more, is sufficient to retrigger the s. 10(

b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered , requiring further advice on the new situation, in order to fulfill the purpose of s. 10(

b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. … … [67] … Read broadly, these cases suggest that developments in the investigation suggesting that the detainee may be confused about

his choices and right to remain silent may trigger the right to a renewed consultation with a lawyer under s. 10(b). The bottom line in such a situation is whether the circumstances, viewed as a whole, indicate that the detainee required further legal advice in order to fulfill the purpose of s. 10(

b) of providing legal advice on his choice as to whether to cooperate with the police or not. (Emphasis added.) [ 70 ] Relevant factors include: “where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient” ( Sinclair , at paragraph 2 ). [ 71 ] In this case, the trial judge was satisfied that there had been no change in Mr.

Stinson’s jeopardy, that he was not confused about what charges he faced, and that he understood that he was speaking to a police officer and that what he said in the interview could be used in evidence. In the circumstances, a secondary caution was not required. [ 72 ] Finally, Mr. Stinson submits that the police officer was required to tell him that his statement was being audio and video taped, and that the omission resulted in an infringement of his rights under

section 7 of the Charter , and, as well, affected the voluntariness of his statement. I accept the Crown’s submission that Mr. Stinson would have assumed that what was said would be recorded in some way, either electronically or by notes taken by the officer. Mr. Stinson had been told that anything he said may be used in evidence. Indeed, audio and video taping an interview is intended to provide protection to an accused by ensuring accuracy in reporting what took place. [ 73 ] In

summary, there is no basis on which to conclude that the trial judge erred in determining that Mr. Stinson had not established a breach of his rights under

section 7 of the Charter .

Section 10 of the Charter [ 74 ]

Section 10 of the Charter provides: Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; … [ 75 ] Mr. Stinson’s submission under this provision is the same as under

section 7. He relies on the above passages in Sinclair . The trial judge concluded that Mr. Stinson was told at the time of his arrest on Friday evening that he was being charged with trafficking in marihuana and cocaine. More detailed information on those charges was provided later that night. This was sufficient to satisfy the

section 10(

a) requirement at the time of arrest. [ 76 ] There was a change in circumstances as a result of the seizure of evidence consequent upon the search of his house. This resulted in further charges relating to tobacco and ammunition offences. However, Mr. Stinson was advised of these charges at his appearance in court on Saturday morning. [ 77 ] In the result, there is no basis on which to conclude that Mr. Stinson’s right under

section 10(

a) of the Charter was infringed. The trial judge made the necessary findings of fact and considered the relevant legal principles. Voluntariness of the Statement [ 78 ] The trial judge found as a fact that there was no evidence of a threat or inducement regarding Mr. Stinson’s decision to give a statement. The relevant principles of law are discussed in R. v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3 . Iacobucci J., for the majority, dealt first with threats or promises, explaining: [49] … statements would be inadmissible if they were the result of “fear of prejudice or hope of advantage”.

The classic “hope of advantage” is the prospect of leniency from the courts. … … [54] … However, phrases like “it would be better if you told the truth” should not automatically require exclusion. Instead, as in all cases, the trial judge must examine the entire context of the confession, and ask whether there is a reasonable doubt that the resulting confession was involuntary. … … [56] … The officer is offering a quid pro quo , and it raises the possibility that the suspect is confessing not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator. … [57] In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess.

This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne . … (Emphasis added.) The Court in Oickle also discussed other factors that may affect the voluntariness of a statement such as “an atmosphere of oppression”, police trickery and the “operating mind” doctrine. These do not arise on the facts of this appeal. [ 79 ] In

summary, in Oickle :

[71] … a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above. … If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts” … . [ 80 ] In this case, the trial judge determined that the statement was voluntary.

He applied the principles set out in Oickle and found that there had been no threats or inducements. There was no other basis, on the facts, to support a conclusion that the statement was not voluntary. [ 81 ] Mr. Stinson submits that he was deprived of clothes. The trial judge found as a fact that this did not occur. Mr. Stinson wanted to ensure that he would have fresh clothes and his belt for his appearance in court on Monday morning.

The fact that he made the request at his interview was not sufficient to render the statement involuntary. [ 82 ] In the circumstances, there is no basis on which to conclude that the trial judge erred in determining that Mr. Stinson’s statement to the police officer was voluntarily made.

SUMMARY [ 83 ] In

summary, the trial judge did not err in dismissing Mr. Stinson’s application for leave to cross-examine on the information to obtain the search warrant. [ 84 ] The search warrant was invalid due to failure to comply with

section 487.1(4) (

a) of the Criminal Code . Consequently, the search and seizure resulted in a breach of

section 8 of the Charter . However, the trial judge did not err in his application of section 24(2) of the Charter with the result that the evidence obtained from the search was admissible. [ 85 ] Finally, the trial judge did not err in concluding that Mr. Stinson’s statement to the police officer was made voluntarily and that his rights under sections 7 and 10 of the Charter were not infringed. [ 86 ] In the result, I would dismiss the appeal. Appeal dismissed .