R. v. Isaacs, 2023 MBKB 128

Date: 20230908 Docket: CR 20-01-38338 (Winnipeg Centre) Indexed as: R. v. Isaacs Cited as: 2023 MBKB 128 COURT OF KING’ S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, -and- ) Hugh D.P. Crawley ) for the Crown ) ) KECIA ANTWANETTE ISAACS, accused. ) Gregory B. Sacks ) for the accused ) ) Judgment Delivered : ) September 08, 2023 BOND J. Introduction [ 1 ] On April 6, 2019, in the early hours of the morning, Winnipeg Police Service (“WPS”) officers sought and obtained a warrant to search the upper suite located at an address on Pilgrim Avenue in Winnipeg.

Kecia Isaacs and her two children were living there at the time. Police seized substances alleged by the Crown to be methamphetamine, cocaine, and a mixture of heroin and fentanyl, as well as over $8,000.00 in cash. As a result, Ms. Isaacs is charged with drug trafficking offenses and possession of proceeds of crime. [ 2 ] Ms. Isaacs seeks exclusion of the evidence seized from her residence. She argued that she was subjected to unreasonable search and seizure because, she says, the Judicial Justice of the Peace (“JJP”) who issued the warrant did so without sufficient grounds.

She argued that the Information to Obtain the Search Warrant (the “ITO”) was deficient on its face. The Law [ 3 ] The parties agreed on the well-established principles I must apply in reviewing the decision of the JJP to issue the warrant:

a) the search warrant is presumed to be valid;

b) the applicant bears the burden of showing that the warrant should not have been issued;

c) my role is limited to deciding whether the record before the authorizing JJP provides any basis upon which she could be satisfied that the relevant statutory preconditions for the issuance of the warrant existed;

d) my review must be contextual, considering the ITO as a whole;

e) the analysis should not be a piecemeal deconstruction of the ITO; and

f) I must assess the facts and reasonable inferences available based on them taking a practical, non-technical and common sense approach.

(See R v Pilbeam, 2018 MBCA 128 at paras. 6-8.) [4] In Pilbeam, Mainella JA states: [10] A search warrant is valid where the totality of the circumstances set out in the ITO discloses reasonable grounds to believe that anoffence has been committed and that evidence of that offence will be found at the specified time and place [citations omitted]. The threshold of reasonable grounds has been described as something more than mere suspicion but something less than the existence ofa prima facie case (Pilbeam at para. 11).

The threshold has also been described as the point at which “credibly-based probability replacessuspicion” (Pilbeam at para. 12, citing Hunter v Southam Inc., (SCC), [1984] 2 SCR 145 at 167). Positions of the Parties [5] Counsel for Ms. Isaacs argued that while the information contained in the ITO could justify continued investigation of Ms.Isaacs, it was not sufficient to cross the threshold from reasonable suspicion to reasonable grounds as required for the issuance of thesearch warrant. He pointed out that the ITO did not include any confidential informant information identifying Ms.

Isaacs as a participantin drug trafficking. Nor did it include any information confirming that Ms. Isaacs had been in actual possession of controlled substances. [6] Crown counsel argued that the ITO contained sufficient information to support reasonable grounds to believe that Ms. Isaacswas engaged in drug trafficking. He emphasized, however, that the ITO need only support reasonable grounds to believe that evidence ofthe offences under investigation would be found at the location for which the warrant is sought, whether Ms. Isaacs was directlyinvolved or not.

Also, he pointed out that the ITO need not support the conclusion that a controlled substance would be found at theresidence, because the warrant is directed not just to the search for controlled substances but also computers, cell phones and othermobile telecommunication devices, and items used to weigh, prepare and package controlled substances, as well as money. [7] For the following reasons, I am satisfied that the warrant should be upheld.

Analysis [8] Before examining the information contained in the ITO, I note that as presented to the JJP it contained an assertion that Ms.Isaacs was facing outstanding drug and weapons related charges at the time. However, during the hearing of this application it wasdetermined that this assertion was not accurate. Ms. Isaacs was not facing those charges. Crown counsel advised that the assertion wasincluded in the ITO in error. [9] Crown counsel advised that he would agree to the excision of this assertion from the ITO, and would proceed to defend thewarrant on the remaining information in the ITO.

Defence counsel agreed to this approach and did not allege that this inaccurateassertion was either intentionally misleading or part of a pattern of negligence or carelessness on the part of the officer who prepared theITO. [10] I accept the approach taken by counsel and will consider the ITO as agreed. [11] The information contained in the ITO is from police officers engaged in a multi-week investigation targeting a drug traffickingnetwork. Ms. Isaacs was not a target of the investigation when it began. While conducting surveillance, officers observed Ms.

Isaacsinteracting with targets of the investigation and engaging in apparent drug transactions. [12] The ITO explains that WPS officers were engaged in a long-term organized crime investigation when Ms. Isaacs came to theirattention. Other individuals (AM and KM) had been identified as participants in a drug trafficking network that included thetransportation of illegal drugs into Winnipeg by air. Police believed that AM, an individual usually resident in BC, was supplying atrafficking network with drugs being brought to Winnipeg from out of province.

In February 2019, police had obtained judicialauthorization to obtain information about AM’s air travel and to conduct covert searches of his luggage. In March 2019, police obtainedsimilar authorization in relation to KM. [13] On April 6, 2019, police surreptitiously searched the luggage of KM who had arrived in Winnipeg on a late night flight shortlyafter midnight. Police identified a significant quantity of fentanyl in the luggage. Police seized the drugs, arrested KM, and theinvestigation was abruptly terminated. [14] The ITO for a search warrant for Ms.

Isaacs’s residence was quickly prepared and submitted to a JJP pursuant to the telewarrantprovisions of the Criminal Code, RSC, 1985, c. C46. The warrant to search Ms. Isaacs’ home was granted at 3:51 AM on April 6, 2019,and executed that morning. [15] As I will explain, I am satisfied that the ITO contains sufficient information to support the warrant. The ITO presented to the JJPdemonstrated, through observations and seizures, that AM and KM were engaged in drug trafficking, and there was sufficientinformation from which the JJP could infer that Ms.

Isaacs was similarly engaged. [16] The ITO contains information that indicates that AM was in Winnipeg on February 28, 2019, staying at a hotel, and was inpossession of a bag containing illegal drugs and cash. Police observed him to leave the hotel with the bag and go to 805 St. Mary’sRoad, taking the bag with him. An individual identified as LKAM was observed going into 805 St. Mary’s Road. (On March 29, 2019,Ms.

Isaacs was observed to spend about two hours with LKAM, meeting him at a cafe, then driving with him to an adult education centreand then a mall.) [17] While AM was staying at the hotel between February 26-28, 2019, KM, who was from Vancouver, had rented an adjoining roomand stayed February 26-27, 2019. Travel records showed that AM and KM had travelled from Vancouver to Winnipeg on the samedates on two occasions in January 2019 and again in February 2019.

[ 18 ] AM was again observed by police at 805 St. Mary’s Road on March 14, 2019. The following day, a vehicle with an Ontario license plate registered to Ms. Isaacs’, was observed behind 805 St. Mary’s Road. [ 19 ] Two days later (March 17, 2019), AM was observed driving a rental vehicle. In a parking lot located just up the street from 805 St. Mary’s Road, he met with an individual driving a pickup truck and engaged in what police believed to be a drug transaction. AM then drove to another location, where Ms. Isaacs was observed walking away from the vehicle, and then returning to it about 20 minutes later.

Police followed the rental vehicle and observed AM and Ms. Isaacs travel to three different locations in Winnipeg, meeting with an individual who appeared to be a real estate agent. One of those locations was on Pilgrim Avenue. Police believed AM and Ms. Isaacs were looking at prospective homes. [ 20 ] AM left Winnipeg by air on March 18, 2019, and when police conducted a covert search of his luggage they found approximately $20,000.00 cash, bundled in a manner consistent with proceeds of crime. [ 21 ] On March 21, 2019, Ms.

Isaacs was observed to meet with another individual, LM, and engage in what appeared to be a drug transaction. (LM was the target of a separate WPS Drug Enforcement Unit investigation at the time.) Police watched as Ms. Isaacs handed an object to LM and LM handed her several $20.00 bills. This transaction occurred in the same parking lot where AM had engaged in a drug transaction on March 17, 2019, located just up the street from 805 St. Mary’s Road. Ms. Isaacs then drove to the rear of the Pilgrim Avenue residence. Just under two hours later, Ms.

Isaacs was observed to meet an individual, identified as GI, and engage in what appeared to be a drug transaction. GI had been a target of the investigation and had been observed to meet with AM and engage in activity consistent with drug trafficking on three occasions between December 2018 and February 2019. [ 22 ] On April 1, 2019, Ms.

Isaacs was observed to meet the same vehicle previously driven by LM and engage in an apparent drug transaction. [ 23 ] By way of internet searches, police learned that the residence on Pilgrim Avenue had been listed for rent on February 1, 2019, and the listing had subsequently been taken down. While engaged in surveillance of the Pilgrim Avenue residence, police observed Ms. Isaacs in the upper suite of that address. [ 24 ] I am satisfied that the information set out in the ITO, taken together, established reasonable grounds to believe that Ms.

Isaacs was engaged in drug trafficking and that she lived in the upper suite at the Pilgrim Avenue residence. The involvement of AM and KM in drug trafficking is evidenced by surveillance, observations showing each of them to be in possession of drugs, and AM to be in possession of proceeds of crime. The association between Ms. Isaacs and AM is evidenced by surveillance showing them together looking for a residence, and further by Ms. Isaacs’ association with LKAM. In addition, the observations of Ms.

Isaacs engaged in apparent drug transactions show her to be involved in drug trafficking. [ 25 ] In addition to arguing that the ITO, overall, contained insufficient information to support the warrant, counsel for Ms. Isaacs referred to two particular concerns that I will address. [ 26 ] First, counsel pointed out that the ITO referred to police observations of Ms. Isaacs’ conduct in meeting LM twice, and GI once as “behaviour consistent with a drug transaction.” During one of the meetings with LM, police observed the exchange of an object for cash.

During the others, there is no observation of an exchange, but it is indicated that one meeting was inside a vehicle and brief, and the other involved Ms. Isaacs reaching into the vehicle through the driver’s side window, then walking away. As pointed out by counsel, there was no definitive confirmation that any of the meetings actually involved the exchange of drugs for money. There was no expert opinion regarding the nature of drug transactions nor information about the experience or expertise of those officers who described the behaviour as being consistent with a drug transaction.

Nevertheless, I am satisfied that the absence of that information does not undermine the ITO. [ 27 ] The JJP was entitled to consider this evidence and to rely upon it in issuing the warrant. In relation to each meeting, there is some detail offered to explain the officer’s conclusion about Ms. Isaacs’ conduct; it is not a bare assertion. In addition, the officer’s conclusion must be considered in the context of all of the ITO, including the actual seizure of drugs from KM and observation of drugs and money in AM’s possession, as outlined above.

The ITO demonstrates connection between AM and KM, and between AM and Ms. Isaacs. The conclusion that Ms. Isaacs was observed to be engaged in drug transactions is not without foundation. [ 28 ] Second, counsel for Ms. Isaacs pointed out that there is no information in the ITO that would indicate that Ms. Isaacs was engaged in drug trafficking activity at her residence, or that drugs or proceeds of crime had been taken into or from the residence. Counsel argued that Ms. Isaacs being present at, or in the vicinity of, the residence would be consistent with her living there and nothing more.

However, I agree with Crown counsel that once the ITO establishes reasonable grounds to believe that Ms. Isaacs is engaged in drug trafficking, it is reasonable to conclude that evidence related to that activity will be found at her home. The warrant authorized a search for controlled substances and proceeds of crime, but also computers and communication devices that may contain evidence relevant to the drug trafficking network under investigation. Moreover, the ITO contains information that suggested that AM was involved in finding the Pilgrim Avenue residence for Ms. Isaacs to rent.

It is a reasonable inference, based on all of the information contained in the ITO, that evidence related to drug trafficking would be found at Ms. Isaacs’ residence. Conclusion [ 29 ] I conclude that there was sufficient information in the ITO (as redacted) upon which the authorizing JJP could be satisfied that there were reasonable grounds to believe that the offence of drug trafficking had been committed and that evidence of that offence would be found at the Pilgrim Avenue residence. [ 30 ] The application to exclude evidence seized from the Pilgrim Avenue residence is dismissed.

______________________________J.