R. v. Chisholm, 2012 NSSC 414

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Chisholm, 2012 NSSC 414 Date: 20121130 Docket:CRAT391779 Registry: Antigonish Between: Her Majesty the Queen Plaintiff v. Joseph Alexander Chisholm Defendant LIBRARY HEADING Judge: The Honourable Justice N.M. Scaravelli Heard: November 27, 2012, in Antigonish, Nova Scotia Subject:

Section 8, Charter Voir Dire. Unreasonable search and seizure.

Summary: Accused was arrested without a warrant based on information provided by a paid informant. Police searched accusedincidental to arrest and seized a quantity of drugs. Further drugs seized from accused’s home subsequent to obtaining Search Warrant. Issue: Did police have reasonable and probable grounds to arrest? Result: Following consideration of the relevant factors set out in R. vs. Debot (SCC), [1989] 2 S.C.R. 1140and R. vs. Garofoloi (SCC), [1990] 2 S.C.R. 1421 , police conducted a lawful arrest. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA

Citation: R. v. Chisholm, 2012 NSSC 414 Date: 2012/11/30 Docket: CRAT391779 Registry: Antigonish Between: Her Majesty the Queen Plaintiff v. Joseph Alexander Chisholm Defendant Judge: The Honourable Justice N. Scaravelli.

Heard: November 27, 2012, in Antigonish, Nova Scotia Final Oral Submissions: November 27, 2012 by Wayne MacMillan November 27, 2012 by Adam Rodgers Oral Decision: November 30, 2012 Counsel: Wayne MacMillan, for the Her Majesty the Queen Adam Rodgers, for the John Alexander Chisholm By the Court : [ 1 ] John Alexander Chisholm is charged with possession of MDMA for the purpose of trafficking contrary to Section 5 (2) of the Controlled Drugs and Substances Act (CDSA) . He is also charged with possession of a number of other prohibited substances contrary to

Section 41 of the CDSA. [ 2 ] Based on information provided by an informant, the police arrested Mr. Chisholm for possession of MDMA for the purpose of trafficking. Mr. Chisholm was wearing a backpack at the time. The police searched his person at the scene of his arrest. His backpack was later searched at R.C.M.P. headquarters in Antigonish. The police found 29 capsules of MDMA in the accused ’ s pocket and a small bag of MDMA in his wallet. The search of the backpack revealed 119 grams of MDMA, a marihuana cigarette and a cellular telephone.

Later the same morning the police obtained a Search Warrant and searched Mr. Chisholm ’ s residence. The search yielded further prohibited substances under the CDSA as well as scales, packaging material and an amount of cash.

[3] This is a voir dire decision on the application of Mr. Chisholm who alleges a breach of his

Section 8 Charter Rights againstunreasonable search and seizure. He submits there were no reasonable and probable grounds for his arrest resulting in an unlawfulsearch. Mr. Chisholm seeks to exclude the evidence seized during the search pursuant to Section 24 (2) of the Charter. FACTS [4] The information leading to the arrest of Mr. Chisholm was provided by a paid informant who gave first hand information tothe R.C.M.P. During contact with the informant on a number of occasions commencing on February 18, 2011 the R.C.M.P. wereprovided with information that Mr.

Chisholm was selling MDMA, ketamin, mushrooms, pills and weed. That he lived with his motherat a specified address in Antigonish and that his mother drove a grey Ford Focus. On March 1, 2011 Constable Gallant was advised bythe informant that Mr. Chisholm was walking in Antigonish with MDMA powder for sale. At that time he was wearing a grey hoodieand a grey backpack. On that date Constable Gallant and Constable Astephen conducted surveillance and observed Mr. Chisholmwearing a hooded sweat shirt and a grey backpack entering his residence at the address provided by the informant.

The following daythey observed a grey Ford Focus in the driveway of the residence. On March 3, 2011 the informant advised Mr. Chisholm was sellingMDMA from his house. [5] On the late evening hours of March 4, 2011 Constable Gallant spoke with the informant and was advised Mr. Chisholm,wearing a hoodie and grey backpack, was in the downtown area of Antigonish with MDMA for sale. Constable Gallant, Corporal Bryce,and another officer travelled to the downtown area of Antigonish. During this period of time Constable Gallant was in constantcommunication with the informant. Mr.

Chisholm was located near a local pub and appeared to be jumping around. He was wearing ahoodie and grey backpack. Mr. Chisholm was arrested for the possession of MDMA for the purposes of trafficking. He was given hischarter rights and police warning. At that time Mr. Chisholm was searched and the drugs were seized from his pockets. He wastransported to the R.C.M.P. detachment where his backpack was searched and further seizures were made. This resulted in theapplication for a Search Warrant and subsequent search of Mr. Chisholm’s residence. ISSUE [6] Pursuant to

Section 495 of the Criminal Code the police had the power to arrest Mr. Chisholm without a warrant for theindictable offence of possession of MDMA for the purpose of trafficking. Mr. Chisholm argues the police, relying solely on informationprovided by an informant, did not have sufficient grounds to arrest. The Crown has conceded a finding that the search incidental to thearrest was not valid would also invalidate the search of the residence under warrant. ANALYSIS [7] A valid arrest must be subjectively and objectively reasonable. These requirements are summarized in R. vs. Storrey (SCC), [1990] 1 S.C.R. 241: 17. In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds onwhich to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonableperson placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for thearrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they arenot required to establish a prima facie case for conviction before making the arrest. [8] The actual arrest of Mr. Chisholm was made by Corporal Bryce. Constable Gallant, the informant source handler, was withCorporal Bryce in the police vehicle at the time of the arrest. Corporal Bryce was his supervisor and was briefed by Constable Gallant atthe R.C.M.P. detachment prior to the arrest. Corporal Bryce was also kept informed of the contents of prior meetings with theinformant. I am satisfied Corporal Bryce personally believed there were valid grounds to arrest Mr. Chisholm.

[9] The issue is whether Mr. Chisholm’s arrest was justified from an objective point of view. In R. vs. Debot (SCC), [1989] 2 S.C.R. 1140 the court addressed three concerns to be considered in weighing evidence relied upon by police to justify awarrantless search: 53 First, was the information predicting the commission of a criminal offence compelling? Second, where that information wasbased on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated bypolice investigation prior to making the decision to conduct the search?

I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknessesin one area may, to some extent, be compensated by strengths in the other two. [10] In this case there was no evidence from police surveillance of Mr. Chisholm’s behaviour that would raise a reasonable beliefthat he was in possession of MDMA. As a result, the court is required to objectively assess the informant’s information and determine ifthe arrest was lawful. [11] In R. vs.

Garofoloi (SCC), [1990] 2 S.C.R. 1421, the court held that a tip could provide the appropriategrounds for a search if it’s reliability could be satisfactorily established. The court reviewed a variety of factors to be examined inmaking this determination. Namely, the degree of the detail of the tip; The informant’s source of knowledge; Indicators of theinformant’s reliability such as past performance or confirmation from other investigative sources. [12] Constable Gallant received continuing first hand information about Mr.

Chisholm possessing and dealing drugs from February11, 2011 to the date of his arrest on March 5. The information leading to his arrest was communicated in the late hours of March 4. Mr.Chisholm was arrested at approximately 12:45 a.m. on March 5. The informant told Constable Gallant that Mr. Chisholm was near thepub in downtown Antigonish. That he was in possession of MDMA for sale and that he was wearing a grey hoodie and backpack. Theinformant was in constant communication with Constable Gallant while the police were travelling in their vehicle to the downtown area.

Clearly the information provided was fresh and the informant was speaking from first hand knowledge. Details provided to police wereMr. Chisholm’s identity, the clothing he was wearing, the area he was located and the fact of MDMA for sale. [13] Regarding the informant’s reliability, Corporal Gallant testified he believed the informant to be reliable. The informant hadbeen a source of information for approximately 2 months prior to the arrest of Mr. Chisholm. Information provided by the informant hadbeen used to obtain three Search Warrants in the past.

Subsequent execution of the Search Warrants resulted in the seizure of prohibiteddrugs. The informant is paid for information provided to police. The informant is not known to have a criminal record. The police wereable to confirm the informant’s information about Mr. Chisholm’s residence, his mother’s vehicle and the clothing he was wearing. [14] The defence submits the information provided to police could not reasonably be relied upon as the informant was untested. Although previous information led to seizure of drugs under Search Warrants on three occasions, there were no convictions at the time ofMr.

Chisholm’s arrest. Convictions regarding these matters are not relevant to the issue of credibility of the informant when assessingwhether the police had grounds to arrest. The test is whether the information proved to be reliable. Although the informant had onlybeen connected to the police for a period of 2 months, there was evidence of reliability. Further, the informant would be financiallymotivated to provide accurate information.

I find the information provided to police reasonably compelling and credible. [15] Considering the totality of the circumstances I am satisfied the police had an objectively reasonable belief that Mr. Chisholmwas in possession of MDMA for the purpose of trafficking. As a result the arrest and the searches were lawful. There was no breach ofMr. Chisholm’s

Section 8 Charter of Rights.