R. v. Jokic, 2012 MBPC 72

CITATION: R. v. Jokic , 2012 MBPC 72 Date: 20121108 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) O. Siddiqui, ) for the Crown ) and ) ) ) George Jokic ) D. Gunn, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) November 8, 2012 ) Elliott P.J. The Issue: [ 1 ] The issue at this point is the facial validity of the warrant. Or, whether the now-revealed information in the Information to Obtain the search warrant (the “ITO”) gave the justice jurisdiction to issue a warrant to search Mr. Jokic’s vehicle.

Defence claims that the warrant was wrongly issued and that therefore there was a breach of s. 8 of the Charter . Given that this was a warranted search, the onus is on the defence to establish the Charter breach. [ 2 ] It was agreed by counsel that if I found a s. 8 breach there would be evidence called and a s. 24(2) ruling made. [ 3 ] It was also agreed by counsel that if the evidence disclosed did not provide a basis for the issuance of the warrant, I could look again at the unedited ITO.

If I found something else in it which could have made the difference, I should contact the Crown in writing with an amended proposed judicial

summary. He would then review it with the informant to see if it could be disclosed. [ 4 ] I have concluded that the justice could have issued the search warrant. Therefore the defence motion fails and the other steps will not be necessary. The Statutory Provision -

Section 11 of the Controlled Drugs and Substances Act : Information for search warrant 11.

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened,

(

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to a contravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it. The Facts (the ITO): [ 5 ] The ITO was sworn October 15, 2008.The relevant evidence contained in the edited ITO, including the judicial

summary, is as follows: [ 6 ] The affiant stated of his experience that he had been a member of the Winnipeg Police Service for seven years and that during his service he had made, “numerous drug related arrests and seizures, and am familiar with and aware of the process in which drug trafficking takes place.

I have been involved in and assisted on a number of Controlled Drugs and Substance Act Search Warrants for illegal narcotics, resulting in the discovery of the items laid out in the Warrant and the arrest of those subjects associated.” ( the items laid out in the warrant were “ crack cocaine, proceeds of crime, packaging material”) “SOURCE BACKGROUND INFORMATION: On -------- the writer was contacted by a source of proven reliability whom I will refer to as source A. Source A has provided information to the writer for the past 6 months.

In this time Source A has provided information that has led to the arrest of several individuals and the seizure of several ounces of both powder and crack cocaine and monies/proceeds of crime. To supply further information to the exact quantity of drugs and money would assist in identifying Source A. Source A has been a user of illegal drugs for the last several years and is therefore knowledgeable and familiar with illegal drugs, their use, sale, appearance and smell. Source A has never been charged with perjury or public mischief.

Source A is requesting a monetary reward/judicial consideration for the information provided. For the purpose of full disclosure, in the event charges should arise from this matter, some of the details provided by Source A as described hereafter have been generalized but not altered. SOURCE INFORMATION: Source A indicated that on each occasion Source A will meet Jokic at various locations though out the City Of Winnipeg. Source A also advised Jokic is well known in the drug subculture and is always in possession of cocaine, as he replenishes before running out.

Source A indicated they have never been turned away by Jokic. Source A describes Jokic as a white male, approximately 5’7 and 5’10, 170 lbs, in his late 20’s or earlier 30’s with short brown hair and a receding hair line. Within the last ---- Source A contacted the writer and advised Jokic has an unknown quantity of cocaine in his vehicle, a black Ford Explorer, and would be attending to the Superstore Parking lot at Gateway/Macleod on October 15, 2008 to conduct a drug transaction. INFORMATION TO CONFIRM SOURCE INFORMATION: On -------- I conducted a search on the police data base for George Jokic.

The search revealed a George Jure Jokic date of birth 1976-04- 29 of Oak Park Walk. Jokic is described as a white male, 165 lbs, 5’8”, 32 years of age. Jokic has been charged with Assault a Police Officer and numerous Highway Traffic Act offences. I conducted a search of Manitoba Licence Plate DPE969, which revealed a black 1999 Ford Explorer registered to a Jennifer Jokic dob: 1977-07-16 of 3 Oak Park Walk. Source A was shown a Winnipeg Police photo of George Jokic dob: 1976-04-29 and confirmed Jokic’s identity as the male Source A has met with in a previous meeting.

On October 15, 2008 at approximately 8:38 pm, the writer observed a black Ford Explorer enter the parking lot of Superstore, located at the southeast corner of McLeod Avenue and Gateway Road. The vehicle parked near a red truck, where the occupant of the red truck exited the vehicle and entered into the passenger side of the black Ford Explorer. A short time later the occupant of the red truck exited the Ford Explorer and returned to the red truck. The Ford Explorer then exited the parking lot, driving south on Gateway Road.

The writer maintained constant surveillance until vehicle was traffic stopped by members of the Winnipeg Police Service. Winnipeg Police members confirmed the identity of the driver as George Jure Jokic and confirmed the plate of the vehicle as DPE969.”

OFFICER’S STATEMENT OF BELIEF: “As a Winnipeg Police Officer for the past 7 yrs, I have participated in numerous investigations involving Controlled Drugs andSubstances search warrants and based on my experiences: the manner in which the crack cocaine has been described and distributed isconsistent with the usual operation practices of a cocaine dealer.

Also in my experience it is common practice for individuals involved inthe sale of controlled drugs and substances to have related paraphernalia: packaging material, scales, score sheets and proceeds of crime,which they store in their residences to facilitate their illegal operation. When considering the information provided by Source “A” along with Police data information, I believe that George Jure Jokic, theoperator of Manitoba Plate DPE969 involved in the trafficking crack cocaine.

As a result of the above details which I believe to be true I am requesting a Controlled Drug and Substance Act warrant to search a blackFord Explorer bearing Manitoba Plate DPE969 to search and seize: Cocaine and proceeds of crime. A seizure of these items will supporta charge of Possession of a Controlled Substance for the purpose of trafficking contrary to the Controlled Drugs and Substance Act.” Argument: [7] Both counsel provided case books with the relevant authorities.

Defence submissions: [8] Defence made it clear that the credibility of the informant was not been attacked. [9] Defence argued however that there were not credible grounds to believe that at the time the search warrant issued there was alikelihood that there would be cocaine in the vehicle. He argued that the informant did not tell the affiant that there would be cocaine inthat vehicle at the relevant time; he told them something completely different.

The situation may have been different had the red truckbeen stopped. [10] Defence also pointed out problems with paragraph 4 of the ITO - the paragraph labelled, “OVERVIEW”.

He argued that thatstatement, “The following information, will show that George Jure Jokic (1976/04/29) is conducting an illicit drug trafficking operationfrom his wife’s vehicle, a 1999 black Ford Explorer, Manitoba Plate: DPE969, and that a search of that vehicle will produce illicit drugs,namely cocaine, paraphernalia, documentation and related items: which will afford evidence to the offence of trafficking in a ControlledSubstance, namely Possession of the Purpose of Trafficking (CDSA 5(2)),...” was not substantiated in the Information by evidenceactually provided by the informant. [11] Similarly, defence pointed out that a paragraph in the ITO under the heading “SOURCE INFORMATION”, “Source A alsoadvised Jokic is well known in the drug subculture and is always in possession of cocaine, as he replenishes before running out.

SourceA indicated they have never been turned away by Jokic,” did not establish that there would be drugs in the vehicle at the time of thesearch. It would be different, defence argued, if the individual in the red truck had been arrested, but there was no credible evidence thatthere were more drugs in the vehicle than those for the specific transaction. [12] Defence also pointed to some statements of belief or opinion which he argued were not tied to the evidence gained from theprotected informant.

He pointed out the affiant had referred to “crack cocaine’’ and to individuals storing “related materials in theirresidences.” Crown Argument: [13] The Crown argued that the evidence contained in the ITO was sufficient for the justice to have issued the ITO. He argued thatthe conditions set out in R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, were satisfied.

The evidence was “compelling”,“credible” and “corroborated.” Analysis and Conclusion: [14] I find that based on the evidence in the edited Information to Obtain , the justice could reasonably have concluded that therewould be evidence of the offence of Possession of the Purpose of Trafficking a Controlled Substance: cocaine or proceeds of crime orpackaging material, in Mr. Jokic’s Ford Explorer on October 15, 2008. [15] I agree that the evidence of the informant was “compelling”. It was also corroborated, first by the checks that were made, andthen significantly when Mr.

Jokic apparently conducted the predicted drug transaction. Defence conceded that “credibility” was not anissue. [16] Both s. 11 of the Controlled Drugs and Substances Act and Garofoli (SCC), [1990] 2 S.C.R. 1421 refer to“evidence” of the offence, not just drugs or “controlled substances.” One of the decisions cited by defence, R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, states (at para. 40): The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible andreliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committedand that evidence of that offence would be found at the specified time and place. [17] I do not believe there is an issue that there existed reasonable and probable grounds to believe an offence had been committedon October 15, 2008.

I find there was also sufficient credible and reliable evidence to allow the justice to have reasonable and probablegrounds to believe that evidence would be found in Mr. Jokic’s Ford Explorer. [18] Firstly, the justice could have concluded that, even had there been a completed drug transaction and all of the drugs in the Ford

Explorer were now in the red truck, there would be evidence of drug trafficking remaining in the Ford. [ 19 ] I agree with defence that the ITO contains problematic sections. It is certainly not perfect. The affiant was somewhat sloppy, referring to “crack” cocaine and “residences”, and making some typing errors.

I do not find the difference in references between “cocaine” and “crack cocaine” to be such that the warrant should fall, nor the references to “residences”. [ 20 ] Although not qualified as an expert, I believe that a seven-year police officer who has been involved in numerous drug cases can state that, based on his experience, drug trafficking commonly involves proceeds of crime as well as packaging materials, score sheets and scales. [ 21 ] Based on that evidence, for which I do not believe qualification as an expert is necessary, there would then be a probability that even if all the drugs in the vehicle had been sold, some other evidence such as proceeds of crime, packaging materials or scales would have been found in a search of the truck.

Section 11 refers to “anything that will afford evidence”, not only to drugs or controlled substances. The rest of what the affiant said to enhance his testimony about knowledge of the trade was, in my opinion, surplusage. [ 22 ] Alternately, the justice could have issued the warrant believing there would still be cocaine in the Ford Explorer. The affiant swore that the informant was a user of illegal drugs, that Jokic was well-known in the drug subculture, always had cocaine, that the informant had never been turned away by him and that the informant had met him at various locations in the City of Winnipeg.

It would not be difficult for the justice to have drawn the inference that Jokic was not selling drugs from his home or place of employment, but rather from a vehicle, and that he had sold to the informant from that vehicle. Jokic had an “unknown quantity of cocaine in his vehicle, a black Ford Explorer, and would be attending the Superstore Parking lot on Gateway/Macleod on October 15, 2008 to conduct a drug transaction”. Again, it would be reasonable to draw the inference that a drug transaction would involve an exchange of drugs and therefore that there would be drugs in the vehicle before the transaction.

Whether any drugs actually changed hands is unknown. As defence pointed out, not every drug transaction involves a transfer of drugs. The affiant did not observe, for example, the occupant carrying anything when he returned to the red truck. It was likely that following that transaction there would be some evidence, either drugs or proceeds or crime, in the Ford Explorer. [ 23 ] The evidence of the informant was that Mr.

Jokic “is always in possession of cocaine, as he replenishes before running out.” Taking the phrase as a whole, or just looking at the first part - “is always in possession of cocaine”, would, taken literally, provide evidence that there would be cocaine in his possession on October 15, 2008, both before and after any drug transaction with the occupant of the red truck. Since the affidavit does not disclose that there were any drugs located on Mr.

Jokic’s person when he was stopped, it stands to reason that there would be drugs in his vehicle. [ 24 ] The justice could, I believe, based on the disclosed evidence in the ITO, have concluded that there would be evidence (cocaine or proceeds of crime) in the location (truck). [ 25 ] I therefore dismiss the defence application. Original signed by Judge J. A. Elliott P.J.