R. v. Kubicz, 2019 NLSC 53

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Kubicz , 2019 NLSC 53 Date : February 28, 2019 Docket : 201804G0046 Her Majesty The Queen v. Victor Kubicz Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. Before: Justice George L. Murphy Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: February 5 - 6, 2019

Summary: The Accused applied for a declaration that his rights under sections 8 and 9 of the Charter had been violated as a result of his arrest without a warrant and a search incidental to that arrest. The application was dismissed. The Court found the police had reasonable grounds to arrest the Accused and thereby the search was conducted pursuant to a lawful arrest. Appearances:

Mark A. Mills Appearing on behalf of Her Majesty The Queen Erin K. Breen Appearing on behalf of Victor Kubicz Authorities Cited: CASES CONSIDERED: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 (S.C.C.); R. v. Acosta, 2014BCCA 218; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145), 14 C.C.C. (3d) 97 (S.C.C.); R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 (S.C.C.); R. v. Wasylow, 2017 NLTD(G) 184; R. v. Garafoli, (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161 (S.C.C.); and R. v. Greffe, (SCC), [1991] 1 S.C.R. 755, 55 C.C.C.(3d) 161. STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B to theCanada Act 1982 (UK), 1982, c. 11; and Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] Victor Kubicz (the “Accused”) is charged with the following offences: Count No. 1 On or between the 28th and 29th days of March, A.D., 2017 at the City of Corner Brook and the Town of Cormack, in the Province ofNewfoundland and Labrador did unlawfully possess a controlled substance to wit: Cocaine, for the purpose of trafficking, contrary toSection 5(2) of the Controlled Drugs and Substances Act.

Count No. 2 On or between the 28th and 29th days of March, A.D., 2017 at the Town of Cormack, in the Province of Newfoundland and Labrador,did unlawfully possess a controlled substance to wit: Cannabis Marihuana, for the purpose of trafficking, contrary to Section 5(2) of theControlled Drugs and Substances Act. [2] The Accused has applied for a declaration that his rights under sections 8 and 9 of the Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 were violated as a result ofhis arrest without a warrant on March 28, 2017 and a search incidental to that arrest. It is undisputed that the Accused was arrested forthe offence of possession of a controlled substance for the purpose of trafficking and that the search incidental to his arrest was in respectof that same offence. [3] The argument of the Accused is that the police did not have the requisite reasonable grounds to arrest him and thereby thesearch conducted incidental to the arrest was unlawful.

The Crown argues the opposite position, namely that the police did have therequisite reasonable grounds to arrest the Accused and that the search incidental to his arrest was lawful. relevant charter sections [4] Sections 8 and 9 of the Charter provide as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned.

analysis [5] The parties in this case are in agreement that the following basic legal principles, originating from case law in this country,are applicable with respect to a warrantless arrest: a. The Crown bears the onus to prove a warrantless arrest was lawful and not contrary to

section 9 of the Charter. b. The onus is met if the arrest complies with section 495(1) of the Criminal Code, R.S.C. 1985, c. C-46. c. Section 495(1) of the Criminal Code authorizes warrantless arrest where the arresting officer believes on reasonable grounds thatthe person being arrested has committed an indictable offence. d. The arresting officer must subjectively have reasonable grounds upon which to base the arrest; those grounds must be justifiablefrom an objective point of view.

This involves a determination of whether a reasonable person in the position of the officer could haveconcluded that there were reasonable grounds for the arrest (R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d)316 (S.C.C.)). e. In assessing the objective grounds for the arrest, an arresting officer’s

interpretation of the actions of an accused must beconsidered in light of the officer’s training and experience (R. v. Acosta, 2014 BCCA 218). f. The standard of “reasonable grounds” lies at the point where credibly-based probability replaces suspicion (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145), 14 C.C.C. (3d) 97 (S.C.C.)). The appropriate standard is one of reasonable probabilityrather than proof beyond a reasonable doubt or prima facie case (R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C.(3d) 193 (S.C.C.)). g. A warrantless arrest of an accused that is not in accordance with section 495(1)(

a) of the Criminal Code is an unlawful arrest. [6] In this case, the Accused is not alleging that the police did not have the requisite subjective belief of the existence ofreasonable grounds to arrest. Instead, the argument is that viewed objectively from the perspective of a reasonable person, the requisitereasonable grounds did not exist. [7] It is well established that in determining whether reasonable grounds for an arrest existed from an objective point of view, areviewing court must consider the “totality of the circumstances”.

In Debot, in discussing this issue, Wilson, J. for the majority said atparagraph 53: 53 In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantlesssearch. 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. Weaknesses inone area may, to some extent, be compensated by strengths in the other two. [8] As this is a case where the grounds for arrest were in part based on a tip from a confidential informant, the comments ofWilson, J. regarding tips originating from sources outside the police must be considered in assessing the totality of the circumstances. [9] In R. v.

Garafoli, (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161 (S.C.C.), the Supreme Court of Canadaalso dealt with the issue of the legal principles which apply when dealing with information provided by confidential informants. Sopinka,J. for the majority of the Court concluded that the following principles had been established by previous decisions of the Supreme Courtin Debot and R. v. Greffe, (SCC), [1991] 1 S.C.R. 755, 55 C.C.C. (3d) 161 at paragraph 68: 68 . . . Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe. (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip froman informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what thisentails.

Rather, the court must look to a variety of factors including: (a)the degree of detail of the "tip"; (b)the informer's source of knowledge; (c)indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [10] Therefore in assessing whether reasonable grounds existed to justify the arrest of the Accused for the offence of possession of

a controlled substance for the purpose of trafficking, I must review the totality of the evidence, including the tip from a confidential source, to determine whether the police from an objective perspective had the necessary grounds. [ 11 ] The argument focused primarily on the source information from the confidential source known as Source I. It was argued that viewed objectively this source information, even considering the totality of the circumstances, did not provide reasonable grounds for arrest. [ 12 ] Counsel for the Accused referred to this source information as the anchor of the reasonable grounds.

It was argued that the tip from Source I was such that it did not justify the arrest of the Accused when assessed based on the factors outlined in Garafoli . [ 13 ] In particular, the Accused argued that the tip lacked detail, that it was based on secondhand information and that Source I was a relatively new source with no proven record of having given reliable information in the past.

Further, the Accused argued that there was insufficient corroboration of the information from Source I. [ 14 ] Counsel for the Crown described the tip from Source I as the “linchpin” or the “straw that broke the camel’s back” in the determination by police that the requisite grounds existed to arrest the Accused. He argued that this case was unlike cases where an arrest was made almost entirely on the basis of a tip from a confidential informant. In particular, he referenced R. v. Whyte , 2011 ONCA 24 and R. v. Day , 2014 NLCA 14 as cases where the arrest was based almost entirely on source information.

It was argued that this case is different because there was an extensive amount of surveillance of the Accused carried out leading up to his arrest. Counsel for the Crown conceded that the source’s tip in this case was not as good as source tips in cases such as Whyte . However, he argued that the need for indicia of reliability is lessened in this case given the overwhelming and robust surveillance that the police carried out on the Accused.

Overall, his argument was that while the tip in and of itself was not strong in terms of its indicia of reliability, when examined in light of the totality of the circumstances, it was sufficient to provide police with reasonable grounds to arrest the Accused. [ 15 ] I will now summarize the facts as I have found them. [ 16 ] The Accused was initially one of two targets of an investigation into illegal drug trafficking that began in September of 2016. It was known as Operation Blackfin. Shortly after the Operation began, the Accused became the only target.

The investigation of the Accused initially involved surveillance of him and recruiting informants to obtain information concerning his drug trafficking activities. [ 17 ] At the time Operation Blackfin began, the Accused lived on Beaumont Hamel Street in Corner Brook. Various officers were involved in conducting surveillance on the Accused, including Constable Graham Dawe who was the lead investigator on the Operation. Constable Dawe testified that while conducting surveillance, the Accused regularly used a number of counter-surveillance techniques designed to evade surveillance by police.

He testified that between mid-September and the end of October he conducted surveillance of the Accused at least a dozen times and maybe up to twenty times. He said that the Accused used counter-surveillance techniques for 60 to 70 percent of the time he was under surveillance. [ 18 ] Constable Dawe also testified that while conducting surveillance of the Accused, he was regularly seen meeting with known drug users and traffickers.

Constable Dawe described these meetings which sometimes included brief window to window meetings between the Accused in his vehicle and a known drug user or trafficker in another vehicle. On other occasions, the Accused would pick up an individual and take that individual to a bank. Constable Dawe also said that during surveillance they would generally see him meet with one to three people per day.

The belief of the police was that these meetings involved drug transactions. [ 19 ] On September 22, 2016, during surveillance, the police saw a vehicle pick up two bags of garbage from the residence of the Accused and drop them in a dumpster at a gas station in Corner Brook. The police were able to retrieve these garbage bags and in one of the bags the police located a used plastic vacuum sealer bag which Constable Dawe believed had contained a brick of cocaine. Testing of the bag using a Nik swab was positive for cocaine.

Constable Dawe testified that he had seized a kilogram of cocaine a number of times and on each occasion it had been packaged in a vacuum sealer bag like the one he retrieved from the garbage bag that came from the residence of the Accused. [ 20 ] As well, during the course of the investigation, the police received information from multiple sources indicating that the Accused was trafficking in cocaine and to a lesser extent marijuana. Some of the source information indicated that Mr.

Kubicz was the cocaine supplier for the Corner Brook area. [ 21 ] During the course of the investigation, the police became familiar with an individual named Jordan Moore. They had source information indicating that he was a cocaine dealer and that the Accused was his supplier. This information was corroborated during surveillance by the police observing the Accused go to the residence of Mr. Moore on Penney’s Lane in Corner Brook on two occasions. During surveillance, the police also observed the Accused and Mr.

Moore having dinner together at a restaurant in Steady Brook. [ 22 ] In early November the police got judicial authorization for a Transmission Data Recorder (“TDR”) and a cell phone tracker for the cellular phones of the Accused and one of his associates, Mitchell Snow. A TDR captures the telephone numbers to which phone calls are made or text messages are sent and as well the telephone numbers of incoming calls and text messages. A cell phone tracker allows the police to track the location of a phone using its SIM card.

As a result of information from the TDR and cell phone tracker, the police were able to determine that the Accused changed his cell phone number between six and eight times after early November of 2016 when the authorizations for the TDR and cell phone tracker were obtained. The police knew that this type of behaviour was typical of individuals involved in drug trafficking. [ 23 ] All of the foregoing information was known to the police in March of 2017 when they received information from the source known as Source I that Mr. Moore was out of cocaine and would be re-supplied by the Accused.

It was on the basis of this tip that the decision was made to conduct surveillance of Mr. Moore’s residence in an attempt to see if in fact the Accused would show up there to meet Mr. Moore. [ 24 ] In fact, the police were in contact with Source I on three occasions in the days leading up to the arrest of the Accused on March 28, 2017. These contacts occurred on March 23, March 25, and March 27. On March 23, the source advised the police that Mr. Moore

was out of cocaine and would be re-supplied by the Accused in the next couple of days. On the 25th, the source advised the police that Mr. Moore had not been re-supplied yet but would be on that day or the next day. On the 27th, the source advised the police that Mr. Moore still had not been re-supplied but expected to be imminently. Constable Dawe became aware on March 26, 2017 of the source information advising that Mr.

Moore was being re-supplied with cocaine by the Accused. [ 25 ] As a result of this information from Source I and the information obtained from their investigation of the Accused to that point in time, Constable Dawe formed the belief that when the Accused went to meet with Mr. Moore he would have cocaine in his possession for the purpose of supplying Mr. Moore and therefore the police would have the grounds to arrest the Accused. It was decided to conduct surveillance on the residence of Mr. Moore and see if the Accused arrived at his residence.

I am satisfied that the police had determined that the Accused was arrestable if and when he arrived at Mr. Moore’s residence. In other words, the police believed they would have the requisite reasonable grounds to arrest the Accused if and when he arrived at the residence of Mr. Moore because he would be in possession of cocaine for the purpose of supplying Mr. Moore. [ 26 ] The police conducted surveillance of Mr. Moore’s residence on Penney’s Lane in Corner Brook on March 27 and March 28. While conducting surveillance they were able to keep track of the whereabouts of the Accused via the cell phone tracker.

On March 27, the Accused, who by this time was not living in Corner Brook but in Cormack, came into Corner Brook. The Accused was on Humber Road, which is the street which connects with the upper end of Penney’s Lane, on that date but did not go to Mr. Moore’s residence so the police did not attempt an arrest. [ 27 ] On March 28, the police again conducted surveillance of the residence of Mr. Moore. The police were once again tracking the location of the Accused via the cell phone tracker and by way of officers in unmarked police vehicles. The police observed Mr.

Moore return to his residence and a short while thereafter determined that the Accused was heading toward Corner Brook. The Accused was observed on Humber Road by the police and they saw him turn down Penney’s Lane where Mr. Moore’s residence was located. Constable Furlong and Constable Coles, who were in an unmarked vehicle on Humber Road, made this observation. They exited their vehicle when the Accused turned down Penney’s Lane believing he was heading to Mr. Moore’s and because from their location they could not see the Accused after he turned down Penney’s Lane.

Upon exiting the vehicle and heading toward Penney’s Lane, they observed the Accused stopped beside Mr. Moore’s residence. The vehicle of the Accused was still running and the officers could not say whether it was still in gear or not. I am satisfied, based on the evidence of both officers, that the Accused was stopped in his vehicle outside the residence of Mr.

Moore and on this basis Constables Furlong and Coles decided to try and effect the arrest of the Accused. [ 28 ] Officers Furlong and Coles were not able to effect the arrest of the Accused upon initially approaching his vehicle despite Constable Furlong opening the door of the vehicle of the Accused and advising him he was under arrest. Instead of exiting his vehicle, the Accused proceeded on down Penney’s Lane and was involved in a collision with another unmarked vehicle at the bottom of that street.

It was then that the arrest of the Accused in terms of taking him into the custody of the police was completed. [ 29 ] In this case, I intend to assess the situation at the point in time that Constable Furlong attempted to arrest the Accused when he was stopped in his vehicle outside Mr. Moore’s residence. In other words, I am not going to consider the events which transpired between the time when Constable Furlong attempted the arrest and when the Accused was actually physically arrested a short time later at the end of Penney’s Lane.

I make no determination as to whether those events are relevant to an assessment of whether viewed objectively the police had the requisite reasonable grounds to arrest the Accused. In this case, for reasons that will become apparent shortly, there is no need for me to make such a determination. [ 30 ] From an objective perspective, it is my determination that there were more than reasonable grounds by March of 2017 to conclude that the Accused was involved in the trafficking of cocaine.

What this case hinges on is whether in the totality of the circumstances the information from Source I was sufficient to establish that when the Accused stopped in his vehicle outside the residence of Mr. Moore on March 28 he was in possession of cocaine for the purpose of re-supplying Mr. Moore. [ 31 ] The law is clear that information from an informer by itself is insufficient to establish reasonable grounds to arrest.

Similarly, the law is also clear that the reliability of a tip must be assessed based on the totality of the circumstances. [ 32 ] The argument of the Accused is that the tip in this case was not of such a nature in terms of its reliability so as to justify the arrest. The defects pointed to by the Accused were that the source of the tip was a new source with no past proven record of having provided information to the police; that the information provided by the source was not firsthand information but instead secondhand information; and that the tip lacked detail (i.e. as to place, time, date, or amount).

The Accused also pointed to the fact that the same source had previously told the police in February of 2017 that the Accused would drive around multiple times prior to dropping off drugs while on the day in question there was no evidence that the Accused had driven around multiple times prior to going to the residence of Mr.

Moore thus casting doubt on the reliability of information from this source. [ 33 ] Finally, the Accused argued that there was insufficient corroboration of the information received from the source and given the frailties of this information more corroboration ought to have been done in order to justify the arrest. [ 34 ] There is no doubt that the information from Source I by itself and viewed objectively was somewhat lacking in terms of reliability.

The police did not have the benefit of the knowledge that this source had provided accurate information to the police in the past and they knew the source of the information was secondhand. This is certainly problematic. [ 35 ] As for the argument that the tip lacked detail as to place, time, date, or amount of drugs, I do not see this as being problematic in any significant way, if at all. It must be remembered that the police did not make the decision to arrest the Accused based on this tip. Instead, they made a decision to conduct surveillance of the residence of Mr.

Moore and to arrest the Accused if he went to that residence. The police essentially made a guess that the Accused would go to Mr. Moore’s residence and meet with him there or pick him up to make the transaction. They did not know for certain the Accused would go there. The police guessed correctly that the Accused would go to Mr. Moore’s residence and arrested him when he did. On the previous day, the Accused had driven on Humber Road past the entrance to Penney’s Lane where Mr. Moore lived but despite knowing this and being in the area they did not arrest him. By going to Mr.

Moore’s residence on March 28, 2017, the Accused corroborated in an extremely significant and important manner the information

that had come from Source I. [ 36 ] Counsel for the Accused had invited me to find that the police made the decision to arrest the Accused the instant he turned down Penney’s Lane based on the fact that Constable Furlong and Constable Coles exited their vehicle at that time and began to run across Humber Road and down Penney’s Lane. I am not prepared to make that finding. Instead, it is my finding that the officers exited their unmarked vehicle and crossed Humber Road so they could continue to observe the vehicle of the Accused.

Further, it is my finding that it was only upon seeing the vehicle of the Accused stopped outside Mr. Moore’s residence that the decision was made to arrest the Accused. [ 37 ] This case is unlike the factual scenarios before the respective courts in Whyte and Day . In those cases, the arrest was made almost entirely on the basis of information from a police source. That is not the case here.

The police had significant information on the Accused from their own surveillance and investigation and from other police sources. [ 38 ] As I see it, the information received from Source I was corroborated by information the police already had. They knew the Accused was involved in trafficking in cocaine. They had source information that Mr. Moore sold cocaine and that the Accused was his supplier. They had observed the Accused go to Mr. Moore’s residence on at least two prior occasions and had seen them together at a local restaurant.

The reliability of the tip or tips from Source I must be assessed in light of this information already known to the police. [ 39 ] In terms of the specific information provided by Source I in March of 2017, it is important to keep in mind as I noted earlier that information was received on three dates, namely March 23, 25 and 27. On March 23, the information received was that Mr. Moore was out of cocaine and would be re-supplied by the Accused in the next couple of days. On March 25, Source I advised it would happen in the next day or two. It is undisputed that this did not happen.

Counsel for the Accused points to these facts as support for her position that Source I was not providing accurate and reliable information. [ 40 ] In the circumstances of this case, I am unable to conclude that the fact the re-supplying did not occur within the timeframe Source I said it would occur on March 23 and March 25 leads to the conclusion that this source was not reliable.

In assessing this issue, it is important, to keep in mind that Source I was in contact with the police on two subsequent occasions after the initial contact, namely March 25 and 27, updating the information initially provided to police. This demonstrates that the source was getting updated information and instead of weakening the reliability of the information from this source, it strengthened it somewhat because it tends to show that the source had access to ongoing information. Further, the police believed from their surveillance of the residence of Mr.

Moore and their tracking of the Accused via his cell phone tracker that Mr. Moore had not been re-supplied by the Accused as of March 27. The information provided by Source I on that date was consistent with their surveillance of the Moore residence and tracking of the Accused. [ 41 ] Overall, despite some problems with the information from Source I, as noted, when I assess the totality of the circumstances, it is my determination that viewed objectively the police had reasonable grounds to arrest the Accused on March 28, 2017 when he stopped outside the residence of Mr. Moore.

As a result, it is my determination that there was no breach of the

section 9 Charter rights of the Accused. Therefore, the search of the vehicle of the Accused was conducted pursuant to a valid arrest and in my determination there was no breach of the

section 8 Charter rights of the Accused. Accordingly, the application of the Accused is dismissed. _____________________________ George L. Murphy Justice