R. v. Bruce Date:, 2017 BCPC 391

Citation: R. v. Bruce Date: 20171011 2017 BCPC 391 File No: 85893-3-C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID KEVIN BRUCE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: S. Quendack Counsel for the Accused: R. Dhannu Place of Hearing: Abbotsford , B.C. Dates of Hearing: October 10, 11, 2017 Date of Ruling: October 11, 2017 RULING ON THE VOIR DIRE - FACIAL VALIDITY OF WARRANT Introduction [ 1 ] THE COURT : Mr. Bruce is charged by indictment with seven counts, five of which allege unlawful possession of various

controlled substances and two of which allege possession of a prohibited or restricted firearm and prohibited ammunition. [2] Mr. Bruce had been the target of an investigation and he was arrested at his apartment in Abbotsford, B.C. on January 26,2017. While Mr. Bruce was in custody, the Abbotsford police obtained a search warrant under s. 487.1 to enter Mr. Bruce's premises atnight to search for and seize a firearm and ammunition. [3] The defence asserts that Mr. Bruce's Charter rights under s. 8 were breached because the Information to Obtain the SearchWarrant was deficient, resulting in an unauthorized search.

The defence is attacking the facial validity of the warrant. No evidence wascalled on this voir dire. [4] In essence, the defence argues that the entire basis of the warrant is a number of bald, conclusory statements from oneconfidential informant to the effect that Mr. Bruce was in possession of a rifle with ammunition stored at his apartment. When oneexcises irrelevant, prejudicial or otherwise inappropriate information from the ITO, it is submitted that there is no basis for the warrant. [5] The ITO presents an interesting dilemma.

A great deal of information has been redacted in order to protect the identity of theconfidential informant so the remaining document is sparse. [6] I must decide whether, on the basis of any appropriate material contained in the vetted ITO, the judicial justice could haveissued the warrant. Of course, before the warrant was issued, the judicial justice authorizing the warrant in this case was able to rely onthe material which has now been redacted at trial. General Principles [7] From my review of R. v. Garofoli [1991] 60 CC (3d) 161 and cases such as R. v. Wilson 2011 BCJ 965 and R. v.

Wong 2017BCSC 91, the following general principles emerge. [8] The judicial review of an impugned warrant begins from a presumption of validity and the onus lies on Mr. Bruce todemonstrate its alleged invalidity. As well, the reviewing judge must determine, based on the appropriate record, whether the issuingjustice could, not would, properly have issued the search warrant.

More specifically, I am to ask in this case whether a judicial justiceassessing all the facts on a practical, non-technical and common-sense basis could have been satisfied there were reasonable grounds tobelieve a firearm and ammunition would be found in Mr. Bruce's apartment. [9] On a facial validity review, there is no amplified record. I, as the trial judge, determine the matter solely on the appropriateinformation contained in the ITO.

Any erroneous, prejudicial or irrelevant information should be excised and excluded fromconsideration on the review. [10] Police are often under tight time constraints and it is unrealistic to measure the quality of drafting by the standard of legalprecision expected of legal counsel.

That said, the officer drafting the ITO must act with integrity and make full and frank disclosure. [11] When the ITO contains factual information provided by a confidential informant and portions of the ITO have been redacted topreserve the confidentiality of that source, the option adopted by counsel in this case is to assess the validity of the warrant solely on thebasis of the information revealed by the redacted ITO.

If the information has been so heavily redacted that the receiving judge cannotconclude that the remaining information was sufficient to justify the issuance of the warrant, the warrant must be set aside (see the lastbullet at paragraph 7 in R. v. Wong cited above). [12] The Supreme Court of Canada in R. v. Debot, (SCC), 52 CCC (3d) 193, sets out the factors to be considered inassessing the value of tips from confidential informants. These include the degree of detail in the tip, the reliability of the tipster andwhether there was corroboration of the tip.

Sometimes these factors are referred to as the "three Cs": the credibility of the informant,the compelling nature of the tip and the corroboration of the tip. [13] I should add that our Court of Appeal in an older case of R. v. Hardy 45 BCCA 146, distinguish the Debot cases dealing withuntested tip informants; however, the informant in that case personally viewed marihuana and a scale within the last 24 hours. Theinformant in the case at bar does not source the information about the rifle and the ammunition. [14] The case of R. v.

Edwardson 2005 BCSC 463 , 2005 BCJ 777 reminds us that the tip will be deficient if it consists ofbald, conclusory statements without details as to place, date or currency of information. The source of knowledge of the tipster must alsobe carefully examined. [15] As stated by Mr. Justice Sopinka in Garofoli as cited above: . . . evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. [16] The case of R. v.

Gauthier 2012 BCJ No. 3090 also emphasizes that the reliability of the tip is to be assessed by recourse to thetotality of the circumstances. [17] Some other principles are worth mentioning. Cases such as R. v. Nguyen 2012 BCJ No. 2456, make it clear that no reasonableuse can be made of information which includes an accused's outstanding charges or dismissed charges. Such information is prejudicial. The case of R. v. Gaba 2010 BCJ 1114 is significant because it stresses the issue of timing.

Proof of possession in the distant past maynot afford reasonable and probable grounds for certain offences, including firearms. A gun is portable and easily moved so theinformation about possession of a gun should be current. [18] When measuring the reliability of a confidential informant, the criminal record of the informant is a significant factor (see R. v.Sutherland (ON CA), 52 OR (3d) 27). That case also reiterates that if a warrant is to be executed by night, as wasthe case here, there must be reasonable grounds for it to be executed by night and it is meant to be invoked only in exceptional

circumstances. ANALYSIS OF FACIAL VALIDITY OF THE WARRANT [ 19 ] In my view, it is clear that the following information should be excised before considering the facial validity of the warrant: 1. Paragraph 6(

b) and 23(

a) make reference to the offence of "weapons trafficking" and those words should be excised. There is no information in the ITO to suggest Mr . Bruce was trafficking in weapons. 2. The first sentence in paragraph 12 should be excised. Based on the case law, an accused's outstanding charges ought not be listed, as the accused is presumed innocent at this stage and such information is prejudicial. [ 20 ] The defence submits that paragraph 7 of the ITO is simply a bald, conclusory statement from a confidential informant that Mr.

Bruce is in possession of a rifle with ammunition which was stored at his apartment on Fern Street in Abbotsford. I agree that the statement is conclusory, but it was intended as a synopsis or

summary. So an authorizing justice needs to analyse it together with the balance of the ITO, and in particular paragraphs 14 through 20. However, even when an authorizing justice engages in this broader analysis, the information from the informant is extremely sparse, likely because of the vetting. [ 21 ] The informant does provide some detail, but not much. He/she indicates Mr. Bruce's address and says Mr. Bruce sells drugs from his residence on his bicycle. However, the informant does not provide compelling information about the firearm in the vetted ITO.

He/she does not indicate where the rifle or the ammunition was located in the residence. He/she gives no particulars about the make, model, or even the colour of the rifle. [ 22 ] Most significantly, the informant gives no information about the source of the information. Did he/she observe the rifle or hear about it from someone else? Or was the rifle a matter of gossip or rumour? An authorizing justice cannot answer these questions based on the redacted material. Furthermore, an authorizing justice could not know the exact date the informant informed Cst. Alton about the rifle. That date has been redacted.

We do know it was sometime in January of 2017 prior to January 26th, hence currency of the information is unknown. [ 23 ] As well, there is little corroboration of the informant's information. The police did arrest Mr. Bruce at the address provided and suspected powder cocaine was found on Mr. Bruce's person. However, the informant indicated that Mr. Bruce sold heroin, methamphetamine and crack cocaine, not powder cocaine. [ 24 ] More to the point, there is no corroboration about the firearm.

In fact, the scene officers did not observe a firearm or ammunition in plain view and no further steps were taken to corroborate the informant's assertions about the rifle. [ 25 ] A great amount of information is redacted in paragraph 15 in relation to the informant's assertion about the accused being in possession of a firearm. However, the authorizing justice can now only consider the few words remaining on the page. [ 26 ] As an aside, I do not consider the statements about Mr. Bruce being in possession of powder cocaine and money to be prejudicial in these circumstances. The police are giving full disclosure.

Sometimes where there are drugs and cash there are also firearms. The issue is whether this ITO reviews reasonable grounds about the presence of a firearm. [ 27 ] That all being said, it is also difficult for the authorizing justice to assess the credibility and reliability of the informant using this highly vetted ITO. Based on paragraph 13, Cst. Alton has been receiving information from the informant since sometime in 2016. Cst. Alton has not acted on all information provided by the informant.

Information from this confidential source did lead to recovery of a stolen automobile and a possession of stolen property arrest. However, the informant may or may not have a criminal record or current charges. The authorizing justice is not now entitled to see Appendix B in that regard. The ITO also says that the informant has not been promised anything for the information provided, yet he or she has been given prior monetary awards. [ 28 ] Overall, this ITO has been heavily redacted. From the information left available, the grounds to issue the warrant are very thin.

The grounds are based on the information of one confidential informant with little detail, no source information and really no corroboration about the rifle. The timing of the information is also unclear. I have no doubt that the judicial justice who actually issued the warrant had more information to work with but the ITO, as vetted, is bereft of details. [ 29 ] I conclude that the vetted ITO does not contain enough information so that an authorizing justice could be satisfied there were reasonable grounds to believe a firearm and ammunition would be found in Mr. Bruce's apartment.

Consequently the search was unauthorized and there was a breach of Mr. Bruce's s. 8 Charter rights. [ 30 ] I am less concerned about the night search. A judicial justice could find exigent circumstances because Mr. Bruce was in custody and the police needed to act quickly in the event he were to be released. A firearm is highly portable and easy to transport or conceal. I agree that the reasons for the night search in paragraph 24(

a) are shaky but paragraph (

b) alludes to the portable nature of firearms. A judicial justice could find reasonable grounds for a search to be conducted at night. [ 31 ] Having found a s. 8 breach, I am open to hearing submissions under s. 24(2) of the Charter and I am in counsel's hands. [SUBMISSIONS] [ 32 ] THE COURT: This is my ruling on voir dire - s. 24(2) analysis. Based on my earlier reasons, I found that there was a breach of Mr. Bruce's s. 8 Charter rights. The vetted ITO did not contain sufficient information such that an authorizing justice could be satisfied that there were reasonable grounds to issue the warrant to search Mr.

Bruce's premises. The grounds were too thin and based solely on a confidential informant, with little detail, no source information and really no corroboration. The timing of the information was unclear and it was difficult to assess the informant's credibility.

[33] I now must engage in an analysis of s. 24(2) of the Charter to determine whether, on balance, the admission of the evidenceobtained by a Charter breach would bring the administration of justice into disrepute. According to R. v. Grant 2009 SCC 32 I am toengage in three lines of inquiry: the seriousness of the Charter infringing stated conduct, the impact of the breach on theCharter-protected interests of the accused and the societal interests in an adjudication on the merits. [34] I will say at the outset that the police in these cases have a difficult job.

After receiving a tip, they are required to act relativelyquickly and to investigate and protect the public interest. A rifle with ammunition and without the necessary authorizations is said to bein the accused's premises. The police must balance their duty to investigate and help protect the public with their duty to ensure anaccused's Charter rights are not breached.

In this case, they must also balance the need to protect the confidential informant as againstthe need to ensure there are reasonable grounds for the warrant. [35] Defence counsel submits that police are familiar with tips from confidential informants and they know when they prepare anITO, vetting will occur before the ITO is disclosed. They know that in order to protect the confidential informant, a trial judge may belooking at a heavily redacted ITO. In this case, the ITO was indeed heavily redacted in comparison to what was presented to the judicialjustice who first issued the warrant.

Defence counsel is really saying that the police here chose to proceed with a questionable ITOwithout proper regard for the accused's Charter rights. The state proceeded with charges here and the accused has been in custody onthis and other matters for over nine months. [36] The Crown submits that the breach here is not as egregious as the defence suggests and society does have an interest in seeingthis trial proceed on the merits. The rifle seized is real evidence, crucial to the Crown's case. 1. Seriousness of breach [37] Cases such as R. v.

Brunskill 2010 BCJ 226 remind me that the unauthorized presence of agents of the state in a home is theultimate invasion of privacy. A man's home is his castle. It will only be in rare cases that such evidence should be admitted on awarrantless search of a residence even in exigent circumstances. Defence counsel points out that in the case of Mr. Bruce, the possessionof an unlicensed firearm was a passive offence not requiring urgent action.

I suppose that all depends on what use was going to be madeof the firearm in a place where drugs were found. [38] I do know that police had to act on a tip relatively quickly but they knew the grounds were solely based on a tip from aconfidential informant. In my view, the police did not act in bad faith. The ITO did contain some grounds for the warrant but they werenot satisfactory or reasonable grounds, at least after the vetting occurred. The police were really relying on one bald statement from aninformant. They knew the ITO would be vetted later on to protect the informant. 2.

Impact of the breach on the accused [39] The first two lines of inquiry do overlap. In R. v. Sutherland (ON CA), 52 OR (3d) 27, the Ontario Courtof Appeal again asserts there is no expectation of privacy more demanding of constitutional protection than our right to expect that wewill be let alone in the privacy of our homes during the night. [40] Mr. Justice Joyce in R. v. Cheng 2013 BCJ 2385, fully appreciated that the presence of handguns in our community and theirassociation with the illegal drug trade have been the cause of many unfortunate incidents in which people have been injured and killed.

However, to permit the seriousness of the offence and the importance of the evidence to overwhelm the 24(2) analysis would be todeprive those charged with serious crimes of the protection of the Charter. The court must be careful not to declare that the ends justifythe means. [41] I would say that the search here was thorough but it was relatively brief and focussed. Nevertheless, it was an unauthorizedinvasion of Mr. Bruce's apartment at night. As a result of the arrest and unauthorized search, Mr. Bruce was handcuffed, strip-searched,and he has remained in custody for some nine months. 3.

Societal interests in an adjudication on the merits [42] Clearly, many citizens in Abbotsford would want to see this trial proceed on its merits with admission of the rifle andammunition into evidence. Places such as Abbotsford and Surrey appear plagued by gun violence in connection with the drug trade. And while the police should have known the ITO would be redacted to protect the informant, there remains in the ITO some baldassertions about an unlicensed firearm being in Mr. Bruce's residence. [43] I also must consider that the police acted on a judicially authorized warrant at the time.

But, as I have said several times, thepolice should have known the ITO could be scrutinized at a later date in a very redacted form. [44] Having said the above, the case law mandates that my task is to ask whether a reasonable person informed of all relevantcircumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administrationof justice into disrepute.

Exclusion of evidence may provoke immediate criticism, but I must view the long-term reputation of the justicesystem (see paragraph 68 of Grant). [45] After balancing all of the Grant factors outlined above, I reluctantly conclude that the admission of the evidence in this casewould bring the administration of justice into disrepute in the long term. The severely redacted ITO did not provide adequate groundsfor the search of a private residence at night. [46] Accordingly there will be an order excluding any evidence seized as a result of the search warrant issued January 26, 2017. G.J.

BROWN Provincial Court Judge