R. v. Tran Date:, 2017 BCPC 182

Citation: R. v. Tran Date: 20170609 2017 BCPC 182 File No: 76000-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. QUANG VIET TRAN RULING ON APPLICATION OF HONOURABLE JUDGE R. LAMPERSON Counsel for the Crown: I. McFadgen Counsel for the Defendant: J. McCormick Place of Hearing: Nanaimo , B.C. Dates of Hearing: June 1, 2, 3, July 19, 20, 21, 2016, April 11, 12, May 29, 30, 2017 Date of Judgment: June 9, 2017

BACKGROUND [1] The accused, Quang Viet Tran, is charged with one count of trafficking in heroin, one count of possessing cocaine for thepurpose of trafficking and one count of possessing heroin for the purpose of trafficking. [2] The alleged offences were committed in Nanaimo, British Columbia in August, 2012. [3] On August 26, 2012, the RCMP obtained a warrant to search a residence located at 6445 Groveland Drive, Nanaimo. Uponsearching the residence the police located and seized drugs which are the subject of the charges against Mr.

Tran. [4] In support of the application for the search warrant, Constable Catherine Mooney prepared and swore an Information to Obtaina search warrant (the “ITO”). [5] Defence counsel made application for an order declaring a voir dire and allowing the examination of the affiant, Cst. Mooney. Following the examination of the affiant, I agreed that it was appropriate to hear from other officers involved in the investigation. I thenpermitted the examination of Cst. Ickringill, Cst. Brodeur and retired Cpl.

Ryan. [6] Following the examination of the police officers, I heard submissions as to the validity of the search warrant which was grantedby a judicial justice pursuant to

section 487 of the Criminal Code. [7] Defence counsel submits that the search was not authorized by law on the basis that the ITO, once amplified, containsinsufficient evidence to justify the search warrant. Crown counsel disagrees. [8] I must decide whether the search warrant was validly issued. THE LAW [9] In accordance with

section 487 of the Criminal Code, a justice may issue a search warrant if satisfied by information on oaththat there are reasonable grounds to believe that there is in a building, receptacle or place anything that there are reasonable grounds tobelieve will afford evidence with respect to the commission of an offence. [10] The question of what is meant by “reasonable grounds” is dealt with by the British Columbia Court of Appeal in R. v. Jir, 2010BCCA 497. At paragraph 27, Mr.

Justice Frankel, writing for the Court, states as follows: As has been stated many times, the “reasonable grounds” standard is not only less than that required for conviction, but it is also lessthan the civil standard of proof. Madam Justice Wilson put it this way in R. v. Debot, (SCC), [1989] 2 S.C.R 1140 at1166: The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J. A. that the appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt”or “prima facie case”.

The phrase “reasonable belief” also approximates the requisite standard. More recently in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005], 2 S.C.R. 100, the Court stated(at para. 114): … the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable incivil matters of proof on the balance of probabilities [citations omitted]. Further, as Mr. Justice Hill noted in R v. Sanchez (1994), (ON SC), 93 C.C.C.(3d) 357 at 367 ( Ont.

Ct. (G.D.)): The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probabilityas to the existence of the facts and inferences asserted. [11] In R. v. Adam, 2006 BCSC 382, Romilly J. considers the standard of review. At paragraphs 17 and 18 he writes: More recently, LeBel J. stated in R.

Araujo [2000] 2 S.C.R 992, 2000 SCC 65 at para. 51: In looking for reliable information on which the authorizing judge could have granted the authorization, the question is whether therewas at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. [Emphasis inoriginal] I add to this LeBel J.’s statement in Québec (Attorney General) v.Laroche, 2002 SCC 72 , [2002] 3 S.C.R. 708 at para. 64: If the reviewing judge determines that at least one such piece of evidence existed and could reasonably have been believed, to justify theapplication for the warrant, the judge’s examination should stop there. [12] In R. v.

Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, the Supreme Court of Canada addresses the review of searchwarrant applications. Writing for the majority, Mr. Justice Fish states: 40 In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have [page 272] issued” (R.v. Araujo, 2000 SCC 65, [2000] 2S.C.R. 992 at para. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, butwhether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to

believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. 41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather “the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58).

Furthermore, thereviewing court may have reference to “amplification” evidence – that is, additional evidence presented at the voir dire to correct minorerrors in the ITO – so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. 58 …When seeking an ex parte authorization such as a search warrant, a police officer – indeed, any informant – must beparticularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome.

The informant’sobligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant orinsignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of knownfacts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts weredisclosed. 60 The facts originally omitted must be considered on a review of the sufficiency of the warrant application.

In Araujo, the Courtheld that where the police make good faith errors in the drafting of an ITO, the warrant or authorization should be reviewed in light ofamplification evidence adduced at a voir dire to correct those mistakes. Likewise, where, as in this case, the police failed to dischargetheir duty to fully and frankly disclose material facts, evidence adduced at the voir dire should be used to fill the gaps in the original ITO. [13] In R. v. Morris, 1998 NSCA 229 , (NS CA), Mr.

Justice Cromwell (then on the Nova Scotia Courtof Appeal) speaks of what is expected of a police officer who is tasked with drafting an ITO. (Unfortunately neither the pages nor theparagraphs of the decision are numbered). [14] Referring to R. v. Sanchez (1994) (Ont. Ct. Gen.

Div.) Cromwell J.A. writes: The Information to obtain as a whole must beconsidered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the “specificityand legal precision expected of pleadings at the trial stage.” Later in the judgment, Cromwell J.A. writes: The nature of the process demands candour on the part of the police. They are seeking to justify a significant intrusion into anindividual’s privacy. This is especially so when it is proposed to search a dwelling house which has long been recognized as theindividual’s most private place.

The requirement of candour is not difficult to understand; there is nothing technical about it. Theperson providing the information to the justice must simply ask him or herself the following questions: “Have I got this right? Have Icorrectly set out what I’ve done, what I’ve seen, what I’ve been told, in a manner that does not give a false impression?”: see R. v.Dellapenna (1995), 62 B.C.A.C. 33 (B.C.C.A.) per Southin J.A. at para 37. [15] When reviewing the sufficiency of an ITO the Court must be mindful of the rule against narrative.

The rule is described by Mr.Justice Hill in the case of Re Criminal Code [1997] O.J. No. 4393. At paragraph eight he states as follows: Firstly, and most importantly, any factual assertion by the applicant within the four corners of the affidavit must be sourced to someinvestigative resource. Otherwise, the applicant breaches what is sometimes referred to as the rule against narrative. It is insufficient foran applicant to simply state conclusions, opinions and facts without providing the court with the source or origin for such conclusions,opinions or facts.

The credibility and reliability of the assertions are inextricably linked to the investigative resources themselves. [16] The applicable test and the requirement of properly sourcing information set out in an ITO is considered by Judge Jardine in R.v. Anderson and Slater, 2012 BCPC 496. At paragraph 39, he states, in part, as follows: A review of the case law raises a number of points for discussion as to source information, informant information, the use of hearsay andthe use of double hearsay.

The failure of the investigator to set out the source of the information may make that part of the Informationto Obtain defective. Continuing at paragraph 40, Judge Jardine writes, in part, as follows: In my view, it is incumbent upon the investigator in the Information to Obtain to disclose the source so that its weight can be assessed bythe judicial officer. If the source is the note or report of other investigators, the informant should provide details outlining the nature ofthe report, how the information was obtained, and why it should be considered credible and reliable.

If the source of the information is awritten statement from the witness, then the witness should be identified and the details of the witness’s involvement provided. [17] In R. v. Charlton (1992), (BC CA), 15 B.C.A.C. 272, Mr. Justice Cumming speaks of assessing informantinformation. At paragraph 29 he writes: The inability to assess the credibility of the informant may be compensated for by the quality of the information as well as by anycorroborating or confirmatory evidence. THE ITO ON REVIEW [18] Having reviewed the applicable law, I will now consider the ITO as amplified on review.

I must consider the evidence givenduring the voir dire. I must excise any portions of the ITO which are erroneous or misleading and must add in information which shouldhave been included based on the affiant’s obligation to fully and frankly disclose all material facts. I must also consider whether theinformation in the ITO is properly sourced. [19] Defence counsel argues that portions of the ITO are misleading and that much of the information is not properly sourced. Shesubmits that portions of the ITO must be excised and that some undisclosed material information should be added.

She says that oncethe ITO has been amplified on review what remains is not sufficient to support the issuance of the search warrant.

[ 20 ] Crown counsel submits that while he and defence counsel agree on the applicable law, defence counsel is asking the Court to impose too high a standard and that the ITO as amplified does support the issuance of the search warrant. [ 21 ] Upon reviewing the ITO as amplified, I find that portions of the ITO must be excised.

I come to this conclusion because some of the information is misleading and some is not properly sourced and, therefore, lacks the necessary supporting factual foundation. [ 22 ] I also find that some information which was not disclosed must be added to the ITO. [ 23 ] I will now consider the amplification of the ITO. I have broken the information contained in the ITO into several categories. They are as follows: 1. Evidence as to residency of the accused. 2. Evidence from police databases CPIC and PRIME. 3. Evidence from Informant “A”. 4. Evidence from Informant “B”. 5. Evidence from Informant “C”. 6.

Evidence from Informant “D”. 7. Surveillance Evidence. 8. Evidence from Malachi Lee’s Cell Phone. 9. Evidence of Drug Testing. 10. Conclusion. [ 24 ] I will deal with each of these categories of evidence in turn. In doing so, I will refer to the applicable paragraph numbers in the ITO. [ 25 ] Evidence as to residency of the Accused : 10. I believe that Quang Viet Tran resides at 6445 Groveland Drive, Nanaimo, for the following reasons: a.

On August 9, 2012, I conducted a CPIC query on Quang Viet TRAN and observed that TRAN was convicted of Possession of a Controlled Substance for the Purpose of Trafficking, contrary to Section 5(2) of the CDSA and is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, under section 109 (1) of the Criminal Code of Canada ( CC ). TRAN is also, until February 10, 2021, prohibited from possessing any firearms, crossbow, restricted weapon, ammunition, and explosive substance.

The prohibition indicated an address for TRAN of 6445 Groveland Road, Nanaimo; b. On August 9, 2012, I conducted a CPIC query on Quang Viet TRAN and observed that TRAN holds a valid learner class 7 British Columbia driver’s licence. The driver’s licence provides an address of 6445 Groveland Road, Nanaimo; c. On August 9, 2012, I conducted a PRIME query of Quang Viet TRAN and observed that TRAN’s address is indicated as 6445 Groveland Drive, Nanaimo. d.

On August 25, 2012, while conducting surveillance, the Nanaimo RCMP Municipal Drug Unit and the Nanaimo RCMP Crime Reduction Unit saw Quang TRAN come and go from 6445 Groveland Drive, Nanaimo. [ 26 ] The affiant does not state in subparagraph 10.a. when the weapons prohibition was made. In submissions Crown counsel said that a

section 109 weapons prohibition can only be for 10 years or for life. It follows, he says, that the prohibition must have been made in February 2011. In my view it is unlikely that the issuing justice would have known this. Accordingly, it is not likely that the issuing justice was able to assess the currency of the address noted. [ 27 ] It is not clear from subparagraph 10.b. when Mr. Tran’s class 7 learner driver’s licence was issued. It is, therefore, not possible to assess the currency of the address noted in CPIC. [ 28 ] The information set out in subparagraph 10.c. lacks detail and is not properly sourced.

It is not clear who made the PRIME entry or when it was made. Furthermore, no evidentiary foundation is provided. It is not possible to know what led the person who made the PRIME entry to believe that Mr. Tran’s address was 6445 Groveland Drive. There is no way that the issuing justice could have assessed the accuracy or currency of the assertion of the address set out. Accordingly, I find that subparagraph 10.c. must be excised. [ 29 ] It is not clear from the information contained in subparagraph 10.d. which police officer or police officers observed Mr. Tran come and go from 6445 Groveland Drive.

It is also not clear what position they were in to identify Mr. Tran or to make the observation. It is also not clear how many times Mr. Tran is said to have come and gone from the property. Furthermore, it is not clear what “come and go” means. Was Mr. Tran seen entering or exiting the residence? Was he seen on the property or just near the property? Accordingly, I find that subparagraph 10.d. must be excised. [ 30 ] Evidence from PRIME and CPIC:

11. On August 9, 2012 I was advised by Cst. Justin ICKRINGILL (Cst. ICKRINGILL) of the Nanaimo Municipal Drug Unit, that confidential source information was obtained regarding the offence of possession of a Scheduled Substance for the Purpose of Trafficking by Quang Viet Tran. 12. On August 9, 2012, I conducted a CPIC query on Quang Viet TRAN and observed that TRAN has a criminal record for Possession of a

Schedule II Substance for the Purpose of Trafficking, contrary to Section 5(2) of the CDSA . 13. On August 9, 2012, I observed PRIME report 2012 – 3333, which is summarized as follows: a. On February 2, 2012 Cst. Darren SWANSON, of the Nanaimo Municipal Drug Unit was off duty when he saw Quang TRAN carrying a black bag on the ferry from Horseshoe Bay to Nanaimo; b. Cst. SWANSON later saw TRAN sitting alone in the driver’s seat of a Honda CRV texting on a cell phone; c. Cst.

SWANSON contacted the Nanaimo Municipal Drug Unit and advised them that TRAN was breaching one of the conditions of his Conditional Sentence Order by using a cell phone; d. Cst. Nick BRODEUR of the Nanaimo Municipal Drug Unit stopped TRAN in his vehicle and arrested him for breach of Conditional Sentence Order; e. Cst. ICKRINGILL conducted a search incidental to arrest and located two cell phones and approximately one gram of marijuana in the black bag Cst. Swanson had seen TRAN with. 14. On August 9, 2012, I observed PRIME street check 2012 – 912, which is summarized as follows: a. On July 10, 2012, Cst.

Mark LONG, of the Nanaimo Intel Unit, observed Ryan TRUCKLE, Scott ALDRED, and Scott HARRISON at Lifestyles Health and Fitness Centre, in Nanaimo; i. Note : Ryan TRUCKLE and Scott ALDRED are known drug traffickers as I have personally reviewed a Nanaimo RCMP police file 2012 – 1437 from January 16, 2010 where TRUCKLE and ALDRED were arrested in possession of sixteen (16) ounces of cocaine. b. Quang Viet TRAN arrived moments later and TRAN and TRUCKLE immediately went into the change room and had a quick discussion; c. On July 18, 2012 Cst.

LONG again observed TRAN, ALDRED and HARRISON at Lifestyles Health and Fitness Centre. [ 31 ] In paragraph 11, reference is made to information being obtained regarding the offence of possession of a scheduled substance for the purposes of trafficking by Mr. Tran. It is not clear whether Mr. Tran was suspected of committing this offence, charged with committing this offence or convicted of committing this offence. It is also not clear when this occurred.

The law is clear that information in an ITO which makes reference to an individual being a suspect, or a person of interest or being charged with an offence amounts to unproven criminal conduct and should not be considered. Accordingly, I will excise paragraph 11. [ 32 ] There is no indication in paragraph 12 as to when Mr. Tran committed the offence of possession for the purpose of trafficking, what the controlled substance was or what penalty was imposed. This lack of detail limits the utility of this information. [ 33 ] Reference in paragraph 13 to Mr.

Tran breaching one of the conditions of his conditional sentence order amounts to an allegation of unproven criminal conduct. There is no source or evidentiary foundation for the assertion that Mr. Tran was the subject of a conditional sentence order. There is also no indication as to whether a formal Allegation of Breach of Conditional Sentence Order was filed and, if so, whether the allegation was admitted or proven. As a result, I find that I must excise subparagraphs 13.c. and 13.d. Given that the belief that Mr.

Tran had breached a conditional sentence order was the basis of the search incidental to his arrest I find that I must also excise subparagraph 13.e. [ 34 ] The affiant’s Note at subparagraph 14.a.i. that Ryan Truckle and Scott Aldred were arrested in possession of 16 ounces of cocaine is statement of unproven criminal conduct. It is not stated whether either or both of them were charged and if so whether they were convicted. Accordingly, the affiant’s Note will be excised. [ 35 ] Evidence from Informant A: 17. On June 2, 2012, Cst. ZEIGLER received confidential information from Informant “A”.

That information is summarized as follows: a. Mike TRAN is out of jail soon. i. Note : Quang Viet TRAN is known to go by the name “Mike” as I have reviewed previous Nanaimo RCMP files where Quang TRAN has used the name “Mike”. b. TRAN is going to start selling drugs right away. [ 36 ] There is no indication in paragraph 17 as to how it is that Informant “A” knows that Mike TRAN is out of jail soon or that TRAN is going to start selling drugs right away. Such information may be first hand, second hand, third hand or merely gossip.

Accordingly, it would not be possible for the issuing justice to know whether this information is at all reliable. This means that very little weight can be attached to this information. [ 37 ] The information set out in the affiant`s Note that Quang Tran is known to go by the name “Mike” is not properly sourced. It is not clear which police files are being referred to, how many files there are or how current the files are. It is also not clear what is the source of the information contained in the police files. It would not be possible for the issuing justice to know if the information is at all

reliable. [ 38 ] There is a further difficulty with the information contained in the affiant’s Note. The Note states that there are previous Nanaimo RCMP police files where Quang Tran has used the name “Mike”. Tran is a common Vietnamese surname.

This portion of the Note does not include a middle name, does not refer to a date of birth and does not include any other information which would allow the issuing justice to know for certain whether the Quang Tran with the associated name “Mike” refers to the accused, Quang Viet Tran, or to someone else. [ 39 ] A further difficulty with paragraph 17 is that the affiant provides a summarized account of the confidential information received from Informant “A”.

Given that a complete account of the information provided by Informant “A” is not provided, it is not possible to know whether the assertion that Mike TRAN is out of jail soon and is going to start selling drugs right away is a full and frank account of the information received. [ 40 ] For all of these reasons I find that it is not possible to know whether the information contained in paragraph 17 is at all reliable. Accordingly, I find that it can be given very little weight. [ 41 ] Evidence from Informant “B”: 20. On July 27, 2012, Cpl. RYAN received confidential information from Informant “B”.

That information is summarized as follows: a. Mike TRAN supplies “Sharkie” with cocaine; i. Note : “Sharkie” is known to be Sharkie WHALEN, a known drug trafficker as reported by Informant “C”. [ 42 ] In fact, the portion of the ITO that sets out information from Informant “C” does not state that Sharkie WHALEN is a known drug trafficker. Rather, it states that TRAN supplies Sharkie WHALEN with drugs. Accordingly, the Note will be excised. [ 43 ] It is not clear how it is that Informant “B” knows that Mike TRAN supplies Sharkie with cocaine.

The information may be first hand, second hand, third hand or merely gossip. The information is not properly sourced. I note that the statement that “TRAN supplies cocaine to “Sharkie”” is corroborated by the information from Informant “C” that TRAN supplies “Sharkie” with drugs. [ 44 ] As with Informant “A”, the affiant provides a summarized account of the information provided by Informant “B”.

So again, it is not possible to know whether the assertion that Mike TRAN supplies Sharkie with cocaine is a full and frank account of the information received. [ 45 ] Furthermore, for the reasons stated above, it is not certain that Mike TRAN is the accused, Quang Viet Tran. [ 46 ] I find that the corroboration I have noted increases the reliability of some of the information set out in paragraph 20 but does not change the fact that it is not sourced. For all that is known, it is possible that the Informants received information of unknown reliability from each other.

The lack of sourcing and the other difficulties I have noted make it impossible to determine the reliability of the information provided. [ 47 ] Evidence from Informant “C”: 23. On August 23, 2012, Cst. ICKRINGILL received confidential information from Informant “C”. That information is summarized as follows: a. Mike Tran is dealing cocaine and heroin; b. TRAN supplies Aleta TRIMBLE and Sharkie WHALEN with drugs; b.i. Note : Aleta TRIMBLE is a known drug trafficker. c. [redacted]; d. TRAN delivers the drugs himself; e. TRAN drives a Honda CRV to make deliveries; f.

TRAN was in possession of drugs two (2) days ago; g. TRAN charges [redacted] heroin and [redacted] cocaine. [ 48 ] It is not clear how it is that Informant “C” is able to provide the information set out in paragraph 23. The information may be first hand, second hand, third hand or merely gossip. It is not properly sourced. [ 49 ] As with Informants “A” and “B” the affiant provides a summarized account of the information provided.

So, once again, it is not possible to know whether the information set out is a full and frank account of the information provided. [ 50 ] Furthermore, for the reasons set out above it is not possible to know for certain that Mike TRAN is the accused, Quang Viet Tran. [ 51 ] I note that the statement that “TRAN supplies … Sharkie WHALEN with drugs” is corroborated by the information from Informant “B” that he supplies “Sharkie” with cocaine. I note as well that the statement that “TRAN supplies Aleta TRIMBLE … with drugs” is corroborated by the same information from Informant “D”.

I note that the statement that “TRAN drives a Honda CRV to make

deliveries” is corroborated by the information from Informant “D” that he delivers drugs driving a Honda vehicle. It is also corroborated by the fact that the police observed Mr. Tran driving a 2010 Honda CRV on August 25, 2012 when engaged in what the police believe to be to be a drug transaction with Malachi Lee. [ 52 ] I find that the corroboration I have noted increases the reliability of some of the information set out in paragraph 23 but does not change the fact that it is not sourced. For all that is known, it is possible that the Informants received information of unknown reliability from each other.

The lack of sourcing and the other difficulties I have noted make it impossible to determine the reliability of the information provided. [ 53 ] Evidence from Informant “D”: 26. On August 23, 2012 Cst. BRODEUR received confidential information from Informant “D”. That information is summarized as follows: a. Mike TRAN is actively trafficking ounces of cocaine, heroin and methamphetamine in the Nanaimo area; b. TRAN delivers drugs driving a Honda vehicle; c. TRAN supplies drugs to Aleta TRIMBLE; d. TRAN supplies drugs to “Cole”; d.i.

Note : “Cole” is believed to be Cole RONKAINEN. [ 54 ] It is not clear how Informant “D” is able to provide the information set out in paragraph 26. It may be first hand, second hand, third hand or merely gossip. The information is not properly sourced. [ 55 ] As with Informants “A”, “B”, and “C” the affiant sets out a summarized account of the information provided by Informant “D”.

So, once again, it is not possible to know whether the information set out is a full and frank account of the information provided. [ 56 ] Furthermore, it is not possible to know for certain whether Mike TRAN is the accused, Quang Viet Tran. [ 57 ] I note that the statement that “TRAN delivers drugs driving a Honda vehicle” is corroborated by the similar information provided by Informant “C” and by the police surveillance on August 25, 2012. [ 58 ] I also note that the statement that “TRAN supplies drugs to Aleta TRIMBLE” is corroborated by the similar information provided by Informant “C”. [ 59 ] Once again, I find that the corroboration I have noted increases the reliability of some of the information provided but does not change the fact that it is not sourced.

The lack of sourcing and the other difficulties I have noted makes it impossible to assess the reliability of the information provided. [ 60 ] Surveillance Evidence: 27. On August 24, 2012, members of the Nanaimo RCMP Municipal Drug Unit and the Nanaimo RCMP Crime Reduction Unit set up surveillance on the residence of Quang TRAN at 6445 Groveland Drive, Nanaimo and observed the following: a. A brown 2010 CRV BC licence plate 826WAJ, registered to Thi Dinh TRAN was parked in the driveway.

Quang TRAN is known to drive the vehicle due to previous surveillance conducted by the Nanaimo RCMP on multiple occasions, most recently August 24, 2012; b. At approximately 1847 hrs., a 2000 red Chrysler Cirrus 019NGT arrived in the area of 6445 Groveland Drive. The driver of the vehicle went to the side of 6445 Groveland Drive and left again after approximately two (2 minutes). The registered owner, Ryan WILDEMAN, is a known drug user as I have dealt with WILDEMAN in the past when he has been using drugs. This short meet at a drug house is consistent with a drug pick up. 28.

On August 25, 2012, members of the Nanaimo Municipal Drug Unit and the Nanaimo RCMP Crime Reduction Unit again set up surveillance on 6445 Groveland Drive, Nanaimo, the residence of Quang TRAN, and observed the following: a. At approximately 1840 hrs. Quang TRAN left 6445 Groveland Drive and got into the brown, 2010 Honda CRV; b. TRAN drove to the parking lot of Woodgrove Mall and stopped the vehicle in front of Chapters; c. A male passenger got out of a Chevy Cavalier that was parked in front of Chapters and approached TRAN’s vehicle; d. The male passenger got into the passenger side of TRAN’s vehicle; e.

After less than thirty (30) seconds, the passenger got out of TRAN’s vehicle and back into the Chevy Cavalier. As a seasoned investigator I know this type of behaviour to be consistent with a drug meet; f. TRAN drove out of the parking lot and returned 6445 Groveland Drive, Nanaimo; g. Members of the Nanaimo RCMP Municipal Drug Unit and the Nanaimo Crime Reduction Unit stopped the Chevy Cavalier on the Nanaimo Parkway and arrested the occupants for Possession of a Scheduled Substance for the Purpose of Trafficking;

h. The driver of the vehicle was found to be Shirley Anne LEE, who has a history; i. The front passenger of the vehicle was found to be Malachi Johnathan LEE, who is currently accused of Possession of a Scheduled Substance for the Purpose of Trafficking and has a criminal record for Possession of a Scheduled Substance x 2.; j. The back passenger in the vehicle was found to be Brittany Bay, who was found in the possession of heroin on May 12, 2012; k. I searched the driver of the Cavalier, Shirley LEE and a half ounce of heroin was located on Shirley LEE; l.

I escorted the back passenger Brittany BAY to cells, at which point BAY made a spontaneous utterance to Cst. MOONEY that she used to buy drugs from the male passenger Malachi LEE. BAY said that she was catching a ride home with LEE and his mother and they said they had to make a stop at Woodgrove Mall parking lot. BAY said they stopped at Woodgrove Mall and Malachi LEE exchanged cash with a male in a vehicle he met in the parking lot for something; m. At approximately 2048 hrs. a Toyota FJ pulled up to 6445 Groveland Drive, Nanaimo.

The passenger got out of the vehicle and went up to the residence towards the side door. The passenger left the residence after being there for approximately twenty (20) seconds and returned to the waiting Toyota FJ. This is consistent with a drug pick up or drop off. n. At approximately 2102 hrs., after constant police surveillance, Cst. BRODEUR pulled over the Toyota FJ; o.

The passenger of the FJ was Raymond PHAM, who has nine PRIME files since July 2009 which list him as a person of interest in drug trafficking. [ 61 ] In paragraph 27, the affiant states that the police set up surveillance on the residence of Quang Tran at 6445 Groveland Drive. In fact, the police believed, without knowing for certain, that Mr. Tran resided there. Accordingly, the words “of Quang Tran” will be excised. [ 62 ] The assertion in subparagraph 27.a. that the CRV is registered to Thi Dinh Tran is not sourced and is of unknown currency and reliability.

Accordingly, it will be excised. [ 63 ] The statement that Quang Tran is known to drive the vehicle due to previous surveillance conducted by the Nanaimo RCMP on multiple occasions, most recently August 24, 2012 is not sourced and is of unknown reliability. Apart from the information from PRIME that Cst. Swanson saw Mr. Tran sitting in the driver’s seat of a Honda CRV on February 2, 2012 there is no indication given as to which officer or officers observed Mr. Tran to drive or as to when and where the observations were made. Accordingly, the statement that Mr.

Tran is known to drive the vehicle due to previous police surveillance will be given little weight. [ 64 ] In subparagraph 27.b., the statement that “the registered owner, Ryan Wildeman, is a known drug user as I have dealt with Wildeman in the past when he has been using drugs” is not properly sourced. It is not clear how it is that the affiant can say that Ryan Wildeman is the registered owner of the Chrysler motor vehicle or was ever the registered owner. It is not possible to assess the reliability of the statement that Ryan Wildeman is a known drug user.

The affiant does not say when or where, or how many times she has dealt with him when he has been using drugs. She also does not indicate how it is that she can say that she knows he was using drugs when she dealt with him. There is no evidentiary foundation for the assertion that the registered owner of the Chrysler is Ryan Wildeman or that he is a known drug user. The police did not identify the driver of the Chrysler.

If there is no reliable evidence that Ryan Wildeman is the registered owner of the Chrysler whether he is a known drug user is of no importance. [ 65 ] Accordingly, the statement that “the registered owner Ryan WILDEMAN is known drug user as I have dealt with WILDEMAN in the past when he has been using drugs” will be excised. [ 66 ] There is no evidentiary foundation for the statement in subparagraph 27.b. that “this short meet at a drug house is consistent with a drug pick up”. The evidence is that the driver of the Chrysler motor vehicle went to the side of 6445 Groveland Drive period.

There is no evidence that the driver met anyone at that time. There is also no evidence to support the assertion that the residence is a drug house. Accordingly, the statement “this short meet at the drug house is consistent with a drug pick up” must be excised. [ 67 ] The statement in subparagraph 28.e. that “as a seasoned investigator I know this type of behaviour to be consistent with a drug meet” is without an evidentiary foundation. The affiant does not say in the ITO whether she has any experience investigating drug offences. Furthermore, she does not say on what she bases her conclusion.

In paragraph 1 of the ITO, the affiant states that she has been a member of the RCMP since January 15, 2001. When testifying in the voir dire she said that at the time she prepared the ITO she had only been a member of the Nanaimo RCMP drug unit for three months. She did not say what particular experience she had during that time. She further testified that she had drafted only approximately four ITOs before.

The statement in subparagraph 28.e. that “as a seasoned investigator I know this type of behaviour to be consistent with the drug meet” will be excised. [ 68 ] Subparagraph 28.h. reads “the driver of the vehicle was found to be Shirley Anne LEE, who has a history. Without expressly saying so, the implication is that she has a history of drug use and/ or of committing drug related offences. There is no evidentiary foundation for the assertion that Ms. Lee has “a history”. Furthermore, the assertion may be one of unproven criminal conduct.

Accordingly, the words “who has a history” must be excised. [ 69 ] Subparagraph 28.i. states, in part, that Malachi Johnathan LEE “is currently accused of Possession of a Scheduled Substance for the Purpose of Trafficking”. This statement is an assertion of unproven criminal conduct and must be excised. [ 70 ] It is not stated in subparagraph 28.i. when Malachi Lee committed the two offences of possession of a scheduled substance. It is also not said what the scheduled substances were or what penalties were imposed.

This lack of information limits the utility of the information provided. [ 71 ] Subparagraph 28.j states that the back passenger Brittany Bay “was found in possession of heroin on May 12, 2012”. This

statement is not properly sourced. It is not clear how the affiant is able to say this or whether the statement is reliable. Accordingly, the statement “was found in possession of heroin on May 12, 2012” must be excised. [ 72 ] Subparagraph 28.k. states that the affiant searched the driver of the Cavalier, Shirley LEE, and that “a half an ounce of heroin was located on Shirley LEE”. The evidence given during the voir dire is that the affiant strip searched Shirley Lee at the RCMP detachment and located a half ounce of heroin in her vagina. This is important amplification evidence.

It will be added to subparagraph 28.k. [ 73 ] Subparagraph 28.m. reads in part that “the passenger left the residence after being there for approximately twenty (20) seconds and returned to the waiting Toyota FJ”. This suggests that the passenger may have been inside the residence. The evidence given at the voir dire indicated that nobody observed the passenger go inside the residence. This is important amplification evidence and will be added to the subparagraph. [ 74 ] Subparagraph 28.m. also reads “This is consistent with a drug pick up or drop off”. This is a conclusion without an evidentiary foundation.

There is no evidence that the passenger entered the residence or met anybody at the residence. Furthermore, for the reasons stated in paragraph 67 it is not clear how the affiant’s experience allows her to reach this conclusion. Accordingly, the statement “This is consistent with a drug pick up or drop off” will be excised. [ 75 ] Subparagraph 28.o. reads “the passenger of the FJ was Raymond PHAM, who has nine PRIME files since July 2009 which list him as a person of interest in drug trafficking”.

The statement “list him as a person of interest in drug trafficking” asserts unproven criminal conduct and will be excised. [ 76 ] Counsel agree that in the course of the voir dire it became apparent that significant information was not included in the ITO. This includes the following: At approximately 1905 hrs., Mr. Tran departed 6445 Groveland Drive, Nanaimo, British Columbia in a vehicle other than the Honda CRV. Constable Brodeur arrested Raymond Pham, an occupant of the Toyota FJ Cruiser. He searched Mr. Pham incidental to arrest.

He located and seized and man purse from around his neck and a black Nokia cell phone from the right pocket of his jacket. Constable Brodeur did not locate any drugs, drug paraphernalia or money on Mr. Pham. The cell phone and man purse were returned to Mr. Pham on his release. The Toyota FJ Cruiser was towed to the Nanaimo detachment secured bay where it was searched by Constable Brodeur. Constable Brodeur did not locate any drugs, drug paraphernalia or money in the Toyota FJ Cruiser. Cst.

Shana Stanton assisted in the arrest of Corinne Wilson, the driver of the Toyota FJ, on Bowen Road in Nanaimo and provided Ms. Wilson with her Charter of Rights and police warning at 2114 hrs. She conducted a strip search of Ms. Wilson at the Nanaimo detachment and did not locate any drugs on her person. Cst. Stanton searched Ms. Wilson’s purse and located $372.35 in Canadian currency from within a pink coloured wallet. She also located a black coloured wallet and some loose bills inside the purse. She did not locate any drugs or drug paraphernalia on Ms. Wilson. The purse and its contents were returned to Ms.

Wilson on her release. [ 77 ] Crown counsel says that the need for full and frank disclosure requires that the additional information set out above be included in the ITO. [ 78 ] Defence counsel argues that the Court should go further and excise all of the information set out in subparagraphs 28.m., 28.n. and 28.o. of the ITO. She argues that by leaving out important information the affiant invites a misleading inference. She argues that it is inconceivable that the affiant did not know that the occupants of the Toyota FJ, Ms. Wilson and Mr.

Pham, were searched and that the Toyota FJ was searched and that no drugs were found. [ 79 ] Defence counsel notes that, when referring, in subparagraph 27.b., to the driver of the Chrysler Cirrus going to the side of the Groveland Drive residence, the affiant states that it is consistent with a drug pickup but that when referring, in subparagraph 28.m., to the passenger of the Toyota FJ going to the side of the Groveland Drive residence the affiant states that it is consistent with a drug pick up or drop off.

She says that this discrepancy suggests that the affiant added the words “or drop off” in subparagraph 28.m. because she knew that the Toyota FJ and its occupants were searched and no drugs were found. [ 80 ] She submits that the affiant must have known that including the evidence that the Toyota and its two occupants were searched and that no drugs were found and that Mr. Tran was not at the residence at the time would have undermined the theory that Mr.

Tran was selling drugs from the Groveland Drive residence. [ 81 ] During the voir dire the affiant testified that she knows that the Toyota FJ and its occupants were searched and that no drugs were found. She said, however, that she cannot say if she knew that at the time she drafted the ITO. [ 82 ] The affiant also testified that Cst. Ickringill was the one who provided her with information for the ITO. She said that he gave her some information over the radio and some in person at the RCMP detachment. In particular, she said that she obtained the information set out in paragraph 28 of the ITO from Cst.

Ickringill. [ 83 ] During the voir dire , Cst. Ickringill testified that he did not provide the affiant with that information. He explained that that was not his role in the investigation. He said he was on the road initially and then was at the detachment, on a different floor from the affiant, looking after items seized as exhibits. [ 84 ] During the voir dire Cst. Brodeur testified that, while he does not specifically recall advising the affiant of the fact that the

Toyota FJ and its occupants were searched and that no drugs were found, based upon his practice, he very likely did so. [ 85 ] On all of the evidence, I find that the affiant did not comply with her obligation to make full and frank disclosure. She testified that she knew Mr. Tran was not at 6445 Groveland Drive when the Toyota FJ and its occupants were there. That is very relevant and important information that should have been included.

I am satisfied on a balance of probabilities that when she drafted the ITO the affiant knew that the Toyota FJ and two occupants were searched and that no drugs were found. [ 86 ] I find that the affiant’s failure to include the evidence that Mr. Tran was not at the residence and that Mr. Pham, Ms. Wilson and the Toyota FJ were searched and that no drugs or drug paraphernalia were found goes beyond being a careless error. She did not fulfill her obligation to present all material facts, favourable or not.

I find that had she done as the law requires and asked herself “Have I correctly set out what I’ve done, what I’ve seen and what I’ve been told in a manner that does not give a false impression” her answer would be no. [ 87 ] After careful consideration, I find that it would not be sufficient just to amplify the ITO by adding the additional material information. Subparagraphs 28.m., 28.n. and 28.o of the ITO will be excised. [ 88 ] Evidence from Malachi Lee’s Cell Phone: 29. On August 25, 2012, Cst.

ICKRINGILL reviewed the contents of a Nokia cellular telephone found sitting on the dash of the car that Malachi LEE was arrested in. The cell phone was sitting on the dash, directly in front of LEE at the time of his arrest. While booking LEE into the Nanaimo RCMP detachment cell block LEE advised Cst. ICKRINGILL that this Nokia cell phone belonged to LEE. Upon review of the Nokia cell phone, the following was located by Cst. ICKRINGILL and presented to me immediately after: a.

TEXT MESSAGES: i. - Incoming text from “Kim” - “Hey bro if found some u still in nanaimo?” - received at 6:06 pm on August 25 th , 2012; ii. - Incoming text from “Kim” - “2506180497” - received at 6:07 pm on August 25th, 2012; iii. - Outgoing text to “Kim” - “He did not answer” - sent at 6:09 pm on August 25 th , 2012; iv. - Incoming text from “Kim” - “Keep calling” - received at 6:11 pm on August 25 th , 2012; v. - Incoming text from “Kim” - “He said he been drinking too much didn’t wanna do anythoing but I made him so keep calliong” - Received at 6:11 pm on August 25 th , 2012; vi. - Incoming text from “Kim” - “I will just pay u when u get back” - Received at 6:12 pm on August 25 th , 2012; vii. - Outgoing text to “Kim” - “he only has a half one and its 14 so 7 each - sent at 6:20 pm on August 25 th , 2012;

(1) Note: In my experience as a seasoned investigator I know the current price of heroin on Vancouver Island to be between $1250 and $1500 for half an ounce. viii. - Outgoing text to “Kim” - “I told my buddy I can only get them a q so make sure u got that 7 bro” - sent at 6:23 pm on August 25 th , 2012;

(1) Note: In my experience I know a “q” to be street slang for a quarter once of drugs. ix. Outgoing text to “Kim” - “this kinda sucks now I don’t make anything cuz its 14 and we only gettin a q and I payed gas” - Sent at 6:27 pm on August 25, 2012; x. Incoming text from “Kim” - “Well don’t even give it to her we flip it in small instead” - Received at 6:28 pm on August 25 th , 2012;

(1) Note: In my experience I know “flip it” to be street slang for trafficking in drugs. xi. - Incoming text from “Kim” - “Give her a ball” - Received at 6:28 pm on August 25 th , 2012;

(1) Note: In my experience I know a “ball” to be street slang for an 1/8 th of an ounce of drugs. xii. - Outgoing text to “Kim” - “If fine I told her she can get a q cuz my mom knows she wit me and she is the one givin me the money now for the half one” - Sent at 6:31 pm on August 25 th , 2012; xiii. - Outgoing text to “Kim” - “I cant tell her to pay for a half zip right now and only give her a game” - Sent at 6:32 pm on August 25 th , 2012;

(1) Note: In my experience I know “a zip” to be street slang for an ounce of drugs. xiv. - Outgoing text to “Kim” - “Do u think u can sell me a q of a game cuz my mom said this q will be gone tonight so she will get a half one in the morning so we only gotta make this q last till tomorrow night” - Sent at 6:34 pm on August 25 th , 2012

(1) Note: In my experience I know “a game” to be street slang for an 1/8 th of an ounce of drugs;. xv. - Outgoing text to “Kim” - “k bro im just leavin here now” - Sent at 6:40 pm on August 25 th , 2012; xvi. Incoming text from “Kim” - “So you got it and on your way back?” - Received at 6:50 pm on August 25 th , 2012. b. PHONE CALL LOG: i. - Outgoing call to phone number “250-618-0497” at 6:14 pm on August 25 th , 2012; ii. - Incoming call from phone number “250-618-0497” at 6:19 pm on August 25 th , 2012; iii. - Outgoing call to phone number “250-618-0497” at 6:36 pm on August 25 th , 2012. 30.

When I reviewed the text messages and phone calls located by Cst. ICKRINGILL, referred to in paragraph 29, it became clear to me that Malachi LEE was detailing the drug transaction between himself and Quang TRAN. LEE details in a text message conversation with “Kim” that he will be picking up drugs in Nanaimo with his intent to traffic the drugs after picking them up from TRAN. LEE details that his mother is with him and is giving him the money for a “half one” which is just 9 minutes before LEE meets with TRAN. LEE calls the number provided to him by “Kim” just 4 minutes before he meets TRAN.

LEE details that he is leaving Nanaimo at exactly the time that police surveillance observed LEE finish meeting with TRAN and the next text message from “Kim” is looking to confirm that LEE “got it” and was on his way back. For these reasons I believe that the text messages and phone calls listed in paragraph 29 clearly indicate that LEE picked up drugs from TRAN. [ 89 ] In her six “ Note’s” set out in paragraph 29, the affiant provides her

interpretation of language contained in the text messages. She indicates that her

interpretations are based on her experience as an investigator. However, she provides no information in the ITO as to whether she has any experience as a drug investigator. She also does not state how it is that she understands the slang used by people involved in drug transactions. During the voir dire she testified that at the time she drafted the ITO she had been on the Drug Unit for three months. However, she said nothing about her actual experience or her knowledge of the common language used by those involved in drug transactions. [ 90 ] Therefore, the affiant’s

interpretations do not have the necessary evidentiary foundation. It is not possible to assess the reliability of her

interpretations. As a result, all six of her

interpretations must be excised from subparagraph 29.a. [ 91 ] I find that even after excising the affiant’s

interpretations of the language used in the text conversation, it is clear that those having the conversation are engaged in an illegal transaction involving the exchange of money. [ 92 ] I find that the excision of the affiant’s

interpretations reduces the weight of her opinion set out in paragraph 30. [ 93 ] Evidence of Drug Testing : 31. On August 25, 2012 at 2218 hours Cst. ICKRINGILL tested the drugs located on Shirley LEE and the drugs tested positive for heroin. [ 94 ] Conclusion: 32. I have learned throughout my career as a police officer that drug traffickers, due to a genuine concern about break and enters and attempted drug rips, often keep the drugs in their own residences for safekeeping and ease of trafficking; 33.

I have learned throughout my career as a police officer that drug traffickers operate in cycles which begin with the supply of drugs which is then sold in smaller quantities to their “clients”. Sales continue until the supply of drugs have run out, until another supply, or “reload”, occurs. However, despite drug amount fluctuations, other indicators and equipment, such as bags, scales, cash and other drug trafficking paraphernalia remain.

I cannot say with certainty what amount of drugs will be found should this authorization be granted, but I believe that a quantity of drugs and other trafficking paraphernalia will be present. 34. In my opinion both meets with WILDEMAN and Malachi LEE were extremely short, which is consistent with drug trafficking behaviour which I observed in my career as a police officer. Regarding Malachi and the short meet with TRAN, police had constant visual surveillance of TRAN from the time he left his house to meet with Malachi LEE and back. Police observed no stops other than the short meet with Malachi LEE.

This indicates to me that TRAN is currently storing drugs in his residence at 6445 Groveland Drive, Nanaimo. 35. Based on the above information provided in this Information to Obtain I believe that Quang Viet TRAN: a. Is in the possession of cocaine, heroin, and methamphetamine for the purpose of trafficking. 36. I further believe that the granting of this warrant to search the residence at 6445 Groveland Road, Nanaimo, will result in the seizure of evidence to support the charge of: a. Possession of a Scheduled Substance for the Purpose of Trafficking, contrary to Section 5(2) of the CDSA . 37.

There are currently no Judges or Judicial Justices available to review my application for search warrant after having placed a call to the Nanaimo Provincial Court House. [ 95 ] The affiant’s opinions set out in paragraphs 32, 33, 34, 35 and 36 of the ITO are all stated without any evidentiary foundation.

The affiant says in the ITO that she has been a member of the RCMP since 2001 but not whether she has any experience or expertise in investigating drug offences. We know from the evidence she gave during the voir dire that had been a member of the Nanaimo RCMP Drug Unit for just three months. She did not say what particular experience she had during that time. [ 96 ] Consequently, I find that the opinions set out in paragraphs 32, 33, 34, 35 and 36 of the ITO must be excised. THE ITO AS AMPLIFIED [ 97 ] I have now reviewed the ITO in its entirety. I have excised some information and added other information.

I will now set out the relevant evidence contained in the ITO as amplified: • As of August 9, 2012, CPIC showed that Quang Viet Tran had, at some unspecified earlier time, been convicted of possession of a controlled substance for the purpose of trafficking and was prohibited from possessing weapons until February 10, 2021.

The prohibition indicated an address for Tran of 6445 Groveland Drive, Nanaimo; • As of August 9, 2012 CPIC showed that, at some time, Quang Viet Tran held a learner’s driver’s licence which showed his address as 6445 Groveland Road, Nanaimo; • On August 9, 2012 PRIME showed that, on February 2, 2012, Cst. Swanson, who was off duty, saw Quang Tran carrying a black bag on the ferry from Horseshoe Bay to Nanaimo. Cst. Swanson later saw Tran sitting alone in the driver’s seat of a Honda CRV texting on a cell phone; • As of August 9, 2012 PRIME showed that, on July 10, 2012, Cst.

Long observed Ryan Truckle, Scott Aldred and Scott Harrison at Lifestyles Fitness Centre in Nanaimo. Quang Viet Tran arrived moments later. Tran and Truckle immediately went into the change room and had a quick discussion. PRIME also showed that on July 18, 2012 Cst. Long again observed Tran, Aldred and Harrison at Lifestyles Health and Fitness Centre; • On June 2, 2012 Cst. Zeigler received confidential information from Informant “A” that Mike Tran is out of jail soon and is going to start selling drugs right away; • On July 27, 2012, Cpl.

Ryan received confidential information from Informant “B” that Mike Tran supplies “Sharkie” with cocaine; • On August 23, 2012, Cst. Ickringill received confidential information from Informant “C” that Mike Tran is dealing cocaine and heroin, that Tran supplies Aleta Trimble and Sharkie Whalen with drugs, that Tran delivers the drugs himself in a Honda CRV, that Tran was in possession of drugs two days ago and that Tran charges [redacted] heroin and [redacted] cocaine; • On August 23, 2012, Cst.

Brodeur received confidential information from Informant “D” that Mike Tran is actively trafficking ounces of cocaine, heroin and methamphetamine in the Nanaimo area, that Tran delivers drugs driving a Honda vehicle, and that Tran supplies drugs to Aleta Trimble and to “Cole”; • On August 24, 2012 members of the Nanaimo RCMP Municipal Drug Unit and the Nanaimo RCMP Crime Reduction Unit set up surveillance on the residence at 6445 Groveland Drive Nanaimo and observed (

a) a brown 2010 CRV BC licence plate 826WAJ and (

b) that at approximately 1887 hrs, a 2000 red Chrysler Cirrus 019NGT and that the driver went to the side of 6445 Groveland Drive and left after approximately two minutes; • On August 25, 2012, members of the Nanaimo Municipal Drug Unit and the Nanaimo RCMP Crime Reduction Unit again set up surveillance on 6445 Groveland Drive, Nanaimo and observed (

a) at approximately 1840 hrs. Quang Tran left 6445 Groveland Drive and get into a brown 2010 Honda CRV (

b) Tran drove to the parking lot of the Woodgrove Mall and stopped the vehicle in front of Chapters (

c) a male passenger got out of a Chevy Cavalier that was parked in front of Chapters and approached Tran’s vehicle (

d) the male passenger got into the passenger side of Tran’s vehicle (

e) After less than 30 seconds, the passenger got out of Tran’s vehicle and back into the Chevy Cavalier (

f) Tran drove out of the parking lot and returned to 6445 Groveland Drive; • The RCMP officers stopped the Chevy Cavalier on the Nanaimo Parkway and, although no drugs were located at the scene, arrested the occupants for possession of a scheduled substance for the purpose of trafficking; • The driver of the vehicle was found to be Shirley Lee, the front passenger was found to be Malachi Johnathan Lee who has a criminal record for possession of a scheduled substance x 2, the back passenger of the vehicle was found to be Brittany Bay; • Cst.

Mooney strip searched the driver of the Cavalier, Shirley Lee, back at the police detachment and located a half ounce of heroin in her vagina; • Cst. Mooney escorted the back passenger Brittany Bay to cells, at which point Bay made a spontaneous utterance to Cst. Mooney that she used to buy drugs from the male passenger Malachi Lee. Bay said that she was catching a ride home with Lee and his mother and they said they had to make a stop at Woodgrove Mall parking lot.

Bay said they stopped at Woodgrove Mall and Malachi Lee exchanged cash with a male in a vehicle they met in the parking lot for something; • On August 25, 2012, Cst. ICKRINGILL reviewed the contents of a Nokia cellular telephone found sitting on the dash of the car that Malachi LEE was arrested in. The cell phone was sitting on the dash, directly in front of LEE at the time of his arrest. While booking LEE into the Nanaimo RCMP detachment cell block LEE advised Cst. ICKRINGILL that this Nokia cell phone belong to LEE. Upon review of the Nokia cell phone, the following was located by Cst.

ICKRINGILL and presented to Cst. Mooney immediately after: TEXT MESSAGES :

i. - Incoming text from “Kim” - “Hey bro if found some u still in nanaimo?” - received at 6:06 pm on August 25 th , 2012; ii. - Incoming text from “Kim” - “2506180497” - received at 6:07 pm on August 25th, 2012; iii. - Outgoing text to “Kim” - “He did not answer” - sent at 6:09 pm on August 25 th , 2012; iv. - Incoming text from “Kim” - “Keep calling” - received at 6:11 pm on August 25 th , 2012; v. - Incoming text from “Kim” - “He said he been drinking too much didn’t wanna do anythoing but I made him so keep calliong” - Received at 6:11 pm on August 25 th , 2012; vi. - Incoming text from “Kim” - “I will just pay u when u get back” - Received at 6:12 pm on August 25 th , 2012; vii. - Outgoing text to “Kim” - “he only has a half one and its 14 so 7 each - sent at 6:20 pm on August 25 th , 2012; viii. - Outgoing text to “Kim” - “I told my buddy I can only get them a q so make sure u got that 7 bro” - sent at 6:23 pm on August 25 th , 2012; ix. - Outgoing text to “Kim” - “this kinda sucks now I don’t make anything cuz its 14 and we only gettin a q and I payed gas” - Sent at 6:27 pm on August 25, 2012; x. - Incoming text from “Kim” - “Well don’t even give it to her we flip it in small instead” - Received at 6:28 pm on August 25 th , 2012; xi. - Incoming text from “Kim” - “Give her a ball” - Received at 6;28 pm on August 25 th , 2012; xii. - Outgoing text to “Kim” - “If fine I told her she can get a q cuz my mom knows she wit me and she is the one givin me the money now for the half one” - Sent at 6:31 pm on August 25 th , 2012; xiii. - Outgoing text to “Kim” - “I cant tell her to pay for a half zip right now and only give her a game” - Sent at 6:32 pm on August 25 th , 2012; xiv. - Outgoing text to “Kim” - “Do u think u can sell me a q of a game cuz my mom said this q will be gone tonight so she will get a half one in the morning so we only gotta make this q last till tomorrow night” - Sent at 6:34 pm on August 25 th , 2012; xv. - Outgoing text to “Kim” - “k bro im just leavin here now” - Sent at 6:40 pm on August 25 th , 2012; xvi. - Incoming text from “Kim” - “So you got it and on your way back? - Received at 6:50 pm on August 25 th , 2012.

PHONE CALL LOG: i. - Outgoing call to phone number “250-618-0497” at 6:14 pm on August 25 th , 2012; ii. Incoming call from phone number “250-618-0497” at 6:19 pm on August 25 th , 2012; iii. - Outgoing call to phone number “250-618-0497” at 6:36 pm on August 25 th , 2012.

FINDINGS AND DECISION [ 98 ] Having set out the information remaining in the ITO following amplification, I must next decide whether the ITO as amplified on review is capable of supporting the issuance of the search warrant. [ 99 ] In doing so, I must ask whether the issuing justice assessing all of the evidence on a practical, non-technical and common sense basis could have been satisfied that there is a credibly based probability that there would be found in the residence at 6445 Groveland Drive anything, such as drugs, scales or documents, which would afford evidence in respect of the offence of possession of a scheduled substance for the purpose of trafficking. [ 100 ] Upon applying the law pertaining to the “reasonable grounds standard” I find that the evidence contained in the ITO as amplified on review is sufficient to provide the police with reasonable grounds to believe that Mr.

Tran was trafficking in drugs. [ 101 ] The question which I must decide, however, is whether the evidence contained in the ITO as amplified is sufficient to support the issuance of a warrant to search the residence at 6445 Groveland Drive, Nanaimo. [ 102 ] The evidence to suggest that Mr. Tran resided at 6445 Groveland Drive at the time the search warrant was granted is limited to the information found on CPIC in connection with Mr.

Tran’s weapons prohibition and learner’s driver’s licence and the police surveillance observation that, on August 24 the Honda CRV was parked at the property at 6445 Groveland Drive and that on August 25, Mr. Tran left the property in the Honda CRV returning there directly after his interaction with Malachi Lee near Chapters. [ 103 ] It is not possible to assess the currency of the information found on CPIC. There is no evidence that Mr. Tran was seen to exit or enter the residence itself. The fact that Mr.

Tran left the property in the Honda CRV and returned there directly after his encounter near Chapters on August 25, 2012 does not necessarily indicate that he resided there at the time.

[ 104 ] There remains in the ITO as amplified evidence that on August 24, 2012 the driver of the Chrysler went to the side of 6445 Groveland Drive and left after approximately two minutes. There is, however, no evidence that the driver went inside the residence or met anyone there. There is also no evidence as to whether Mr. Tran was at the property at that time. Cst. Ickringill testified during the voir dire that he observed the actions of the driver of the Chrysler and did not pull the Chrysler over.

He testified that he would have done so if he believed a drug transaction had occurred. [ 105 ] There is no evidence contained in the ITO as amplified that Mr. Tran stored drugs or other offence related property at the residence at 6445 Groveland Drive. None of the four confidential informants provided any information as to where Mr. Tran resided. Nor did any of them provide any information indicating that Mr. Tran was dealing drugs out of the residence at 6445 Groveland Drive or that he stored drugs, or any other offence related property, there. [ 106 ] There is the evidence that after Mr.

Tran met briefly with Malachi Lee that Ms. Lee was strip searched at the RCMP detachment and was found to have half an ounce of heroin in her vagina. One may wonder how she could have secreted the heroin in her body given that she was driving the Cavalier and travelled a short distance in a short time from the Chapter’s parking lot to where she was stopped and arrested. This is not to say that this is not possible. However, even if one concludes that the heroin was obtained from Mr.

Tran, there is no credible evidence that the heroin had been stored at the residence at 6445 Groveland Drive. [ 107 ] Having carefully analyzed the matter, I have decided that the ITO as amplified on review is not capable of supporting the issuance of the warrant to search the residence at 6445 Groveland Drive. [ 108 ] In considering the totality of the evidence contained in ITO as amplified I conclude that the issuing justice could not have been satisfied that there was a credibly based probability that there would be found in the residence anything which would afford evidence in respect of the offence of possession of a scheduled substance for the purpose of trafficking. [ 109 ] Accordingly, I find that the search warrant issued is not valid and that the search was unlawful.

BY THE COURT ________________________________ The Honourable Judge R. Lamperson