R. v. Fontaine and Sanderson, 2021 MBPC 60

CITATION: R. v. Fontaine and Sanderson, 2021 MBPC 60 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Serena Ehrmantraut for the Crown ) ) – and – ) ) ) Vincent Charles Fontaine and ) ) William Marks for the Accused Amanda Pearl Sanderson ) ) ) Scott Wilson for the Accused ) Reasons for Decision ) Delivered: November 26, 2021 Rolston P.J. INTRODUCTION [1] The police received information from two confidential informants that resulted in the arrest of Vincent Fontaine and AmandaSanderson (the Accused) as they drove the streets of Winnipeg.

When the police stopped and searched the Accused’s vehicle, theyfound illegal drugs and a firearm, leading to both Accused being charged with possession of fentanyl for trafficking, possession ofproceeds obtained by crime, and several firearms offences. The matter was set for trial with an accompanying Charter motion beingfiled by the Defence. This is a decision on the voir dire dealing with the alleged Charter breaches. [2] The Defence contends that both Accused’s right to be protected from arbitrary detention and from unlawful search and seizurehave been violated. While both Mr. Fontaine and Ms.

Sanderson agree that the police had subjective grounds for arrest, they contendthat there was no objective basis for the detention. The Defence says that any evidence obtained as a result of this unlawful arrest shouldbe excluded from evidence in the trial. [3] The Crown maintains that the arrest and detention of both Accused was justified based on the totality of the evidence.

Further, the Crown says that even if the Charter was breached, the resulting evidence should be admissible against both Accused in thetrial proper. [4] Objective grounds for arrest depend upon the totality of whether the informant’s information was credible, corroborated andcompelling. Each of these considerations factor into an analysis as to whether they collectively satisfy the objective componentnecessary for a lawful arrest. [5] The secondary issue is whether the evidence should be admitted in the event that a Charter violation has been established.

THE LAW [6] The parties do not dispute the applicable law as it relates to the parameters of a warrantless arrest which were set outsuccinctly by Justice Mainella in R. v Penner, 2019 MBCA 8 at paragraph 4: A lawful warrantless arrest pursuant to section 495(1)(

a) of the Criminal Code has both a subjective and objective component. Theofficer who makes the decision to arrest must subjectively have reasonable and probable grounds on which to base the arrest and thosegrounds must be objectively justifiable to a reasonable person placed in the position of the officer (see R v Storrey, (SCC), [1990] 1 SCR 241 at 250-51; and R v Latimer, (SCC), [1997] 1 SCR 217 at para 26). The appropriate standardof proof is one of reasonable probability, not proof beyond a reasonable doubt or a prima facie case (see R v Debot, (SCC), [1989] 2 SCR 1140 at 1166).

In applying that standard, the trial judge must assess the totality of the circumstances in a practical,non-technical and common-sense way, mindful of the knowledge, experience and training of the officer (see R v Sinclair, 2005 MBCA41 at para 14; and R v McKay, 2009 MBCA 121 at para 30).

In the context of confidential informant information, determining objectivity is a matter of ascertaining whether the tip was compelling,credible and corroborated (see R. v. Debot, (SCC), [1989] 2 SCR 1140). The parties differ as to how the law applies tothe facts in this case in respect of these three areas. [7] Courts have consistently warned against and avoided taking a piecemeal approach to examining the grounds for arrest in casesof confidential information and in review of search warrant cases (see Debot at para 60; R. v. Beauchamp, 2015 ONCA 260 at para 85;R. v. Brown, 2013 MBQB 174; R. v.

Olson, 2021 MBQB 143, to name a few). The Manitoba Court of Appeal commented that aninformation to obtain a search warrant must be considered as a whole, “like a painting or a photograph” (R. v. Pilbeam, 2018 MBCA 128at para 7). The same approach may be applied when considering the extent to which a confidential informant’s information is credible,compelling and corroborated.

Weakness in one area may be bolstered by another. [8] In order to ensure that the bigger picture remains in focus, it is necessary to examine the context of this investigation beforediscussing the extent to which credibility, corroboration and compellability have been established. CONTEXT OF THE POLICE INVESTIGATION [9] Just prior to the arrest of the Accused, the Community Support Unit for the downtown division of the Winnipeg Police Service(WPS) were focused on a particular apartment building on Ellice Avenue (the “Ellice building”) as a problem spot for criminal activity.

The WPS were working with building management to try to clean up crime in and around the Ellice building and interacted withconcerned tenants, staff, and management about problems with illicit drug use and drug trafficking within the building. [10] Both Accused were known to police, both by their legal names and by the monikers “Chuck” (Mr. Fontaine) and “Panda” (Ms.Sanderson). During the efforts to clean up the Ellice building, officers heard information that “Chuck and Panda were trafficking inmeth and fentanyl”.

This information was not acted upon at the time, and I was left with the impression that the information was non-specific and can be defined as rumour. [11] While the timing of events is not clear, at some point, Constable Brett Martens received information from a confidentialinformant (CI

A) that the Accused were “actively selling fentanyl and meth within that building and they were armed with a firearm”. Constable Martens testified that other information was shared with him by CI A, but revealing that information might reveal the identityof CI A. I was left with the impression that the timing of the information from CI A was in close proximity to the efforts to clean upcrime in the Ellice building. [12] Constable Martens testified that the WPS attempted to corroborate the information from CI A by locating the Accused in theEllice building.

Again, the timing of this investigation is unclear, but Constable Martens testified that he received his information fromCI A within a week prior to the arrest, so attempts to confirm the information could be no longer than a week prior to their arrest. TheWPS had information that the Accused were living at suite 202 in the Ellice building, which was apparently being rented to Mr.Fontaine’s sister. WPS could not find either Accused in the building or at that suite, let alone observe them engaged in behaviour thatappeared consistent with trafficking in drugs.

Constable Martens testified that the WPS concluded that the Accused must have changedthe location of their drug trafficking away from the Ellice building. While that possibility is a logical conclusion (especially in light ofwhat must have been increased police presence in that area), objectively speaking, another inescapable possibility is that the informationwas not credible. [13] It is clear that Constable Martens believed he had grounds for an arrest as of receiving the information of CI A, even though theinformation could not be corroborated.

Accordingly, when he went to work on September 21, 2020, the day of the arrest, the planformulated by the unit was to locate and arrest the Accused based upon CI A’s information. [14] On that same day, a few hours after the shift began, but after the WPS were actively seeking to arrest the Accused, ConstableMartens received further relevant information. Constable Ray, a fellow WPS officer from the Community Support Unit in a differentdistrict, had received information from a different confidential informant (CI B).

According to Constable Martens, CI B had relayed toConstable Ray “essentially the same details” as CI A, as to “the drug trafficking and the firearm and where the drugs would be stored”. CI B also gave information that the drugs in the Accused’s possession would be stored in a “pink pop can”, which also was apparentlyconsistent with information given by CI A. This detail was not something disclosed as contributing to grounds for arrest until evidencewas called in this voir dire, as the WPS were concerned about revealing the informant’s identity.

Lastly, CI B told Constable Ray thatthe Accused would be selling in the Brooklands area out of two bars, but predominantly out of the Westbook Inn. Accordingly theinvestigation shifted to the Westbrook Inn in order to arrest the Accused. [15] Officers described that there are two bars in the area of Keewatin Street (a major street in Winnipeg), and Pacific Avenue. While there was some confusion between the two bars, the Brooklands Inn or the Westbrook Inn, I am satisfied that the investigationcontinued at the Westbrook Inn located at Keewatin Street and Pacific Avenue West.

The WPS searched the Westbrook Inn, but wereunable to locate either Accused. However, officers remained for a period of time at the Westbrook Inn on an unrelated matter. [16] Constable Brolly was standing outside of the Westbrook on a side street when a vehicle passed in front of her driven by Mr.Fontaine, with Ms. Sanderson in the passenger seat. Constable Brolly and Constable Martens initiated a traffic stop, specifically in orderto arrest them for trafficking in fentanyl. The traffic stop occurred nearby at an apartment building which turned out to be the residenceof a sister of Mr.

Fontaine. [17] As officers executed the arrest of the Accused from the vehicle, several officers noted that there was a pink Crush pop can inplain view in the front console cup holder between the driver and passenger seat. That pop can had been modified so that it could beopened from the bottom and contained nine bags of fentanyl. Amongst other items, there was also gabapentin pills found in a purse inthe vehicle and a 12-gauge shotgun found in a gym bag in the back seat. [18] It is necessary to examine basis of the arrest based upon the context of this overall police investigation.

WAS THE INFORMATION RELIED UPON BY POLICE CREDIBLE? [ 19 ] The WPS received information from three sources. The first information came from people in the building, which I have referred to as rumours. Information was also provided by CI A and CI B. [ 20 ] The information defined as rumours was non-specific in nature in that it was not written down by Constable Martens (or anyone else) and could not be attributed to any specific source. Constable Martens estimated that 10 to 15 anonymous people suggested that the Accused were trafficking.

It is not clear whether the information was first hand information for one or many or any of these people. The information on its own cannot be classified as credible, and carries little weight even when considered in the bigger picture. It should be noted that the Crown did not offer this evidence as a substantial support of the grounds for arrest. [ 21 ] Similarly, there is no evidence which supports the basis for finding that CI B was a credible source of information. All that I know about CI B is that he or she was an informant of Constable Ray.

The Crown conceded that there would be no basis to say that CI B was a credible source. [ 22 ] The Crown argues that CI A was credible based upon Constable Martens evidence as to his history with CI A: • The information received from CI A was “first hand information”, • CI A had been providing information to Constable Martens for the last six months to a year, • The information given had been proven reliable in the past and had led to arrests, • CI A had never been charged with perjury, public mischief or fraud, and • CI A was familiar with drug use and drug trafficking.

It is clear that Constable Martens believed that the information from CI A was credible. The Crown added in argument that while we would often like to know more about the background of the informant, the police have to exercise their discretion in the amount of detail provided so as to protect the identity of that informant. [ 23 ] The evidence as to the credibility of CI A is general in nature. Constable Martens did not explain what he meant by saying that the information provided was “first hand” knowledge.

For example, did CI A actually see something he thought was fentanyl or is his “first hand knowledge” based upon a conversation with one of the Accused? This is significant because the information as to CI A’s knowledge of the drug trade is also vague. There is no evidence that CI A is familiar with fentanyl specifically, so there is no evidence as to whether CI A knows what fentanyl looks like. That being the case, the basis of CI A’s “first hand” information would provide context for other aspects of his credibility. Similarly, the evidence reveals that CI A has provided information that led to arrests.

Were these drug arrests? If so, did convictions result? It is particularly troubling that Constable Martens maintained that CI A’s information was reliable in this case, despite the fact that CI A’s information that the Accused were trafficking in meth and fentanyl in the Ellice building could not be confirmed. [ 24 ] I share the concerns that were expressed in R . v. Babiuk , 2016 MBQB 155 at paragraphs 27 to 29 , which illustrate that credibility of a confidential informant cannot be assumed.

The evidence must establish a solid foundation that the informant is credible beyond the officer just saying so and providing general boilerplate details about credibility. If the informant’s information is to “build trust” (see Pilbeam at para 20 ), the information must give the judge facts which are specific enough to withstand critical analysis, notwithstanding the delicate balancing required to protect the informant. [ 25 ] The evidence presented in this case falls far short of strong evidence of credibility.

While I am mindful that I should be careful about comparing factual circumstances of other cases (see Pilbeam at para 13 ), strong credibility evidence was illustrated in Debot (see para 66 ), where more evidence as to past source information and direct evidence as to a connection between the information and the accused formed the foundation for reliability. In the present case, the evidence as to CI A’s reliability falls far short of the evidence in Debot . I find, as was done in Babiuk , the evidence as to credibility does lend itself to a finding of some, though not strong, credibility.

WAS THE INFORMATION RELIED UPON BY THE POLICE CORROBORATED? [ 26 ] The Crown says that there is significant corroboration in this case that supports that the WPS objectively had reasonable and probable grounds for arrest. [ 27 ] It is not necessary for the police to confirm every aspect of information provided by the source, nor is it necessary to confirm the criminal aspect of the information. The purpose of corroborating evidence is to “…‘build trust’ in the confidential informant or his or her information” ( Pilbeam , para 20 ).

It is difficult to gain trust in an informant or information that is conclusory or devoid of detail. That is why such statements are generally insufficient to constitute reasonable grounds (see R . v. Kurdydyk, 2015 MBQB 145 , and R . v. Caissey, 2007 ABCA 380 ). [ 28 ] First of all, the Crown relies upon the evidence surrounding the Ellice building. Constables Brolly and Martens both talked about there being significant calls to deal with drugs issues within the building. Constable Martens testified that there was often evidence of drug use such as used needles in the stairwells of that building.

In addition, there was talk that the Accused were involved in the sale of fentanyl in the building. There is no question that the building was a site for significant drug use and that drug trafficking was also likely a problem there. While it is difficult to determine the credibility of the rumours, they can play a limited role in confirming the information of CI A. [ 29 ] Does CI B’s information corroborate the information of CI A? Constable Martens testified that CI B gave “essentially the same details” as CI A, as to “the drug trafficking and the firearm and where the drugs would be stored”.

Upon close inspection of the respective information, it is apparent that some of the information disclosed was the same and some was different as between CI A and

CI B. [ 30 ] CI A told Constable Martens that the scene of the trafficking would be at the Ellice building. CI B told Constable Ray that the trafficking would be in the Brooklands neighbourhood, and particularly at the Westbrook Inn.

This seems to be a significant difference in the respective information. [ 31 ] However, the respective informants are consistent as to details that fentanyl was being peddled (although CI A also included meth), that the Accused also carried a firearm, and most significantly, that the Accused were concealing the drugs in a pink pop can. [ 32 ] As mentioned, the detail that a pink pop can was being used by the Accused was a detail that became significant at the hearing of this motion.

Counsel’s final arguments implied that the additional information regarding the pink pop can was information only learned from CI B. Counsel were afforded an opportunity on November 23, 2021 to address the Court after I alerted counsel to a potential misunderstanding as to whether CI A had also provided information about the pink pop can. In direct examination, Constable Martens testified as follows: Martens: -- I had been contacted by Constable Ray, from the District Three Community Support Unit. He had contacted me in regards to a confidential informant that he had.

His unit was aware that we were -- that we had entered into an investigation on the accused in this matter. And he had reached out to me the same day of the matter at hand today -- highlighting details that had been brought forward to me by my informant -- corroborating essentially the same -- the same details that we had received in regards to the drug trafficking, and the firearm and where the drugs were essentially concealed. [Emphasis added] Crown: Are you able to disclose where the drugs were being stored, that you were aware to? Martens: Yes. Crown: And where was that?

Martens: -- it was said to be in a pink pop can. It seems that the evidence of Constable Martens is that the information from CI B confirmed the evidence of CI A in that the Accused were selling fentanyl, had a firearm and secreted their drugs in a pink pop can. [ 33 ] Defence counsel says I should be skeptical about the evidence surrounding the pink pop can. It is clear that Constable Martens did not initially cite the pink pop as a detail shared by CI A, but did testify that certain details provided were held back to protect the informant.

Also, the fact that CI A reported that the drugs were concealed in a pink pop can is absent from the notes and reports of all officers. Counsel expressed concerns about whether Constable Martens’ evidence establishes that CI A provided the pink pop can information, relying on the following question and answer by Martens as evidence that CI A did not provide information about the pink pop can: Crown: Any further details with respect to that information you received? Martens: Ahhh…from the Informant or from our standpoint…from the investigation’s standpoint? Crown: From the Informant? Martens: No.

However, these details immediately preceded the previously cited excerpt where the pink pop can information was also attributed to CI A. In many instances, additional grounds being added in evidence would impact credibility. In this case, the office prefaced his grounds by stating that there was other information the WPS had held back in order to protect the source.

The answers cited by counsel must be read in conjunction with the entirety of the evidence given. [ 34 ] Defence also took issue with why the pink pop information would be held back to protect the informant on the basis that the detail was somewhat innocuous and was unlikely to reveal the source. Defence says that even if this detail was sensitive information, the fact that a pink pop can was located could have been mentioned in the police reports in order to verify that this was not a detail with fabricated significance later on.

Therefore, counsel suggested that the pink pop can information was added or imported to CI A by the WPS to bolster their grounds. [ 35 ] The detail regarding drugs being secreted in a pink pop can is significant in that it is specific. Objectively speaking, it is understandable that this detail would be considered sensitive by the WPS. It is hardly surprising that a drug dealer would be protective of a detail such as the location of their drug stash. It follows that that detail would be known by only a limited number of people.

Therefore, it is understandable that the WPS held the detail back for fear of disclosing their source. Each of the officers testified as to the significance of the pink pop can, and no suggestion was made to any of them, other than Constable Martens that the significance of the pink pop can was added in after the fact or that the information did not come from CI A. Further, it is true that in direct examination, the pink pop can was not initially included as information disclosed by CI A, the reason for that was explained.

While I agree with counsel that the pink pop can should have been inventoried in the report in at least a subtle way to establish how it was located, I am satisfied that the pink pop can was a detail that was intentionally held back by the WPS to protect the source, and was not added after the fact to bolster the grounds for arrest.

[ 36 ] Based upon the whole of the evidence of Constable Martens, I find that the WPS initially were holding back the pink pop can information, but elected to reveal it as a part of the grounds. I also accept that the detail of the pink pop can was received by police from CI B and was a part of the information given by CI A. [ 37 ] Lastly, the Crown relies upon the fact that the Accused drove by the Westbrook Inn as a corroborating fact for the information of CI B that they were trafficking in the Brooklands area and that they would be trafficking at the Westbrook Inn.

I accept that the evidence that they were driving in the Brooklands area corroborates the information that they were trafficking in the area , but I do not consider it to be a significant factor that builds trust in the information received regarding the Westbrook Inn. Neither of the Accused were actually found at the Westbrook Inn.

It is speculative to suggest that the fact that they drove by the hotel meant that they were going to attend to the Westbrook Inn to traffic inside. [ 38 ] I find that significant weight can be placed upon the information in common between CI A and CI B that: • The Accused were trafficking in fentanyl, • The Accused possessed a firearm, • The Accused used a pink pop can to conceal their drugs. While other details do form part of the totality of the circumstances, they are less significant as to building trust in the information received.

WAS THE INFORMATION RELIED UPON BY THE POLICE COMPELLING? [ 39 ] What makes information compelling? It seems that there is no clear answer to this question. However, it is the case that this issue should be considered on a case-by-case basis (see Pilbeam , at para 13 ). [ 40 ] Defence argues that the information received by police was vague and at times contradictory. They point to the difference in the respective confidential informant information as to the location of the trafficking as a reason to doubt the credibility of the information. Counsel for Mr.

Fontaine argued that in light of the way in which the pink pop can came to light, the issue of reasonable grounds should not be “settled on the pink can”. [ 41 ] However, the pink pop can is a particularly compelling detail. It is specific in that it described the location of the drugs that is somewhat unique, but also the detail as to the colour of the can is very specific. CI A and CI B also specified the drug and the presence of the firearm.

The fact that each informant disclosed the pink pop can detail is important as the nature of the remaining common information was non-specific but consistent in nature. [ 42 ] Ultimately, the WPS knew that the Ellice building had a drug problem and that rumours suggested Mr. Fontaine and Ms. Sanderson were selling in the building. The WPS had one source telling them that the Accused carried a firearm, and sold meth and fentanyl which was carried in a pink pop can.

The WPS could not locate the Accused in that building but sometime later received information from a second source that the Accused sold fentanyl which was carried in a pink pop can and carried a firearm at another location. The detailed information provided has a strong compelling quality. THE TOTALITY OF THE INFORMATION [ 43 ] In order to determine whether the WPS did have reasonable grounds for the arrest, I must be satisfied on the totality of the circumstances that the information was credible, corroborated and compelling.

In my view, the evidence does not disclose that there was objectively reasonable grounds to arrest the Accused based upon the information of CI A. Therefore, when the police set out to arrest Mr. Fontaine and Ms. Sanderson on September 21, 2020, the objective component on the grounds had not yet crystalized. However, that changed when the information from CI B. was received by Cst. Martens.

Even though the credibility of the initial information was not strong, the fact that a significantly compelling specific detail was corroborated by a second informant, whose credibility was also not strong, I am satisfied that the lack of evidence as to credibility is overcome by the totality of the circumstances. SHOULD THE EVIDENCE BE EXCLUDED PURSUANT TO SECTION 24(2) OF THE CHARTER ? [ 44 ] In light of my findings above, I will not examine whether evidence should be excluded pursuant to section 24(2) of the Charter .

CONCLUSION [ 45 ] Objectively speaking, I am satisfied that the WPS did have reasonable and probable grounds to arrest both Accused, and therefore there was no breach of either Mr. Fontaine’s or Ms. Sanderson’s

section 8 or 9 Charter rights. [ 46 ] The Application is dismissed. “Original signed by:” Rolston P.J.