R. v. Walker, 2019 NLSC 83

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Walker , 2019 NLSC 83 Date : April 11, 2019 Docket : 201804G0168 Her Majesty The Queen v. Douglas Charles walker Danielle Melina Wight Before: Justice Donald H. Burrage Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: April 4, 2019

Summary: The accused were jointly charged with possession and trafficking of illegal drugs. They argued that their warrantless arrest was in violation of their Charter rights. The court held that there were reasonable grounds for the arrest and the search of their vehicle was incidental to that lawful arrest and was reasonable. No Charter breach was found. Appearances:

Mark Mills Janet T. Coleman Appearing on behalf of the Crown Robby D. Ash Appearing on behalf of Douglas Walker Trevor S. Murphy Appearing on behalf of Danielle Wight Authorities Cited: CASES CONSIDERED: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; R. v. Baldwin, 2008 NLCA 62; R. v. Debot, (SCC), [1989] 2 S.C.R. 1140; R. v. Lal (1998), (BC CA), 130 C.C.C. (3d) 413, 113 B.C.A.C. 47; R. v.Garofoli, (SCC), [1990] 2 S.C.R. 1421; R. v. Greffe, (SCC), [1990] 1 S.C.R. 755; R. v. Warford, 2001NFCA 64; R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11; Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] Douglas Walker (“Walker”) and Danielle Wight (“Wight”) are jointly charged with possession of cocaine, cannabis andcannabis resin for the purpose of trafficking, as well a simple possession of crystal meth, cannabis and cannabis resin. The formalIndictment reads, as follows: Count No. 1 On or about the 8th day of February, 2017 at or near the Town of Deer Lake, in the province of Newfoundland and Labrador, did possessa substance included in

Schedule I, to wit: Cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs andSubstances Act. Count No. 2 On or about the 8th day of February 2017 at or near the Town of Deer Lake, in the Province of Newfoundland and Labrador, did possessa substance included in

Schedule II, to wit: Cannabis, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs andSubstances Act. Count No. 3 On or about the 8th day of February, 2017 at or near the Town of Deer Lake, in the Province of Newfoundland and Labrador, did possessa substance included in

Schedule I, to wit: Methampehtamine (Crystal Meth), contrary to Section 4(1) of the Controlled Drugs andSubstances Act. Count No. 4 On or about the 8th day of February, 2017 at or near the Town of Deer Lake, in the Province of Newfoundland and Labrador, did possessa substances included in

Schedule II, to wit: Cannabis (marihuana), contrary to Section 4(1) of the Controlled Drugs and Substances Act. Count No. 5

On or about the 8 th day of February 2017 at or near the Town of Deer Lake, in the Province of Newfoundland and Labrador, did possess a substance included in

Schedule II, to wit: Cannabis Resin, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act . Count No. 6 On or about the 8 th day of February, 2017 at or near the Town of Deer Lake, in the Province of Newfoundland and Labrador, did possess a substances included in

Schedule I, to wit: Cannabis Resin, contrary to Section 4(1) of the Controlled Drugs and Substances Act . [ 2 ] Walker and Wight were arrested without warrant on the afternoon of 8 February 2017, following a traffic stop of Walker’s vehicle as it was driven east on the Trans Canada Highway (“TCH”) in the vicinity of Eastern Brook. At the time Walker was driving and Wight was in the front passenger seat. [ 3 ] A search of the vehicle, incidental to the arrest, disclosed the presence of illegal drugs. No issue is taken with the manner in which the search was conducted.

Rather, Walker and Wight argue that their arrest was unlawful, in that the constables did not have the requisite reasonable grounds. As the arrest was unlawful, so too was the search incidental to that arrest. [ 4 ] As a consequence, Walker and Wight now apply for a declaration that their rights under sections 8 and 9 of the Charter [1] were violated. [ 5 ] Sections 8 and 9 provide, as follows: 8. Everyone has the right to secure against unreasonable search or seizure. 9.

Everyone has the right not to be arbitrarily detained or imprisoned. the evidence [ 6 ] Constable Woodrow is a 12-year veteran of the Royal Canadian Mounted Police (“RCMP”). He commenced his policing career in 1989, serving as a military police officer until 2001. He then served in the Ontario police force, before joining the RCMP in 2007. [ 7 ] In January-February 2017, Constable Woodrow served as a general duty officer with the RCMP’s Corner Brook detachment.

He was the primary handler for a particular confidential informant (hereinafter “the CI”). [ 8 ] Constable Woodrow was not asked specifically about his experience with illegal drug trafficking, but as we shall see, the CI did provide him with information relating to illegal drugs on approximately 20 prior occasions. [ 9 ] On 23 January 2017 the CI contacted Constable Woodrow by phone to say that there was a male in the Deer Lake, NL, area, driving an older model blue Jaguar and dealing drugs, specifically cocaine, LSD and ICE (crystal meth) from the vehicle.

The CI did not relate the male’s name, but he was described to Constable Woodrow as being an older man in his late 50’s, 5’8” tall, weighing approximately 230 lbs., with long grey hair and a grey goatee. The CI offered that this man was a member of the Hell’s Angels motorcycle gang. [ 10 ] Constable Woodrow passed this information along to the RCMP Deer Lake detachment, but did not know what became of it at the time. [ 11 ] Two days later, on 25 January 2017, the CI called again to say that the same male was still in Deer Lake, dealing drugs out of his vehicle.

This time the CI was able to provide Constable Woodrow with a cell phone number for the male. It was a number which, according to the CI, people would call when they wished to purchase drugs. Constable Woodrow was told that the CI had personally seen large quantities of cocaine and LSD. [ 12 ] Constable Woodrow used the phone number provided by the CI to search the RCMP database. When he did, the number was shown as registered to Walker and that Walker’s address was in the Musquodoboit area of Nova Scotia.

The constable then obtained Walker’s date of birth (16 March 1960) and used it to determine that Walker was the registered owner of a 2004 blue Jaguar. He further learned through RCMP intelligence that while Walker was not a member of the Hell’s Angels (as the CI claimed), he was a member of the Gate Keepers, an outlawed motorcycle gang in Nova Scotia, affiliated with the Hell’s Angels.

He further learned that Walker had previously attended events sponsored by the Hell’s Angels in Ontario. [ 13 ] On 27 January 2017, the CI called again, this time to say that the male had left Newfoundland and Labrador on the Marine Atlantic ferry, bound for Nova Scotia, but would be returning shortly with more drugs from that province. By now Constable Woodrow believed the male to be Walker, but to the best of his recollection the CI did not mention him by name.

However, the CI did specifically name Wight and told the constable that Wight was travelling with the male, and that when returning to the island she would present as a walk-on passenger on the ferry.

According to the CI, Wight would be carrying the drugs on her person, as a walk-on female passenger and was unlikely to attract the attention of authorities. [ 14 ] On 8 February 2017, the CI called Constable Woodrow again, this time to say that the male was now back in Deer Lake in his blue Jaguar and was once again selling drugs. [ 15 ] Constable Woodrow then notified his chain of command and the RCMP set up surveillance on the blue Jaguar in Deer Lake.

Over a period of roughly 30 minutes it was seen visiting various addresses where it would stop for short periods of time. Walker wasseen going to and from the vehicle during these stops. Constable Woodrow testified that he believed that this activity was consistent withthe sale of drugs. [16] In the meantime, Constables Woodrow and Stone travelled in an unmarked police car from Corner Brook to Deer Lake. Basedon communication from the surveillance team, they located the Jaguar proceeding east on the TCH.

They followed briefly, conducted avehicle stop and arrested Walker and Wight for possession for the purpose of trafficking. [17] The vehicle was searched by other officers incidental to the arrest and a quantity of cocaine and cannabis was found. Thevehicle was then towed and impounded. [18] Constable Woodrow testified that he has served as the CI’s primary handler since 2015. The CI was known to use drugs,although not heavily. Indeed, the constable wondered whether the CI’s drug use would still be considered illegal.

Constable Woodrowfurther testified that the CI has a criminal record, although the record does not include crimes of dishonesty, such a fraud or mischief. [19] According to Constable Woodrow, the CI had provided him with information approximately 20 times in the past, most ofwhich, but not all, could be corroborated. However, at no time did he find the information to be unreliable. The CI providedinformation which led to the opening of three separate files, multiple arrests and three search warrants, all relating to illegal drugs.

Following a successful arrest the CI was paid for the information provided. the issues [20] The within application gives rise to three issues: 1) Did the police have reasonable grounds to arrest Walker and/or Wight? 2) Was the warrantless search of the vehicle lawful as incidental to the arrest? 3) If there was a breach of

section 8 and/or 9 of the Charter, is the exclusion of the evidence warranted by section 24(2)? legal principles [21] The offence of possession of cocaine for the purpose of trafficking under subsections 5(2) and 5(3) of the Controlled Drugsand Substances Act, S.C. 1996, c. 19 is an indictable offence. Walker and Wight’s arrest in relation to this offence was thereforegoverned by section 495(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46. [22] Section 495(1)(

a) of the Criminal Code provides: 495

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commitan indictable offence; [23] Section 495(1)(

a) thus authorizes a warrantless arrest where the arresting officer believes on reasonable grounds that theperson being arrested has committed, or is about to commit, an indictable offence. The Crown bears the onus of proving that the arrestcomplies with this requirement. [24] While section 495(1)(

a) requires that the arresting officer subjectively have reasonable grounds on which to base an arrest,these grounds must also be justifiable from an objective point of view. In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241,Cory J. stated: 16. There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he orshe has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probablegrounds did in fact exist.

That is to say a reasonable person, standing in the shoes of the police officer, would have believed thatreasonable and probable grounds existed to make the arrest. See R. v. Brown (1987), (NS CA), 33 C.C.C. (3d) 54(N.S.C.A.), at p. 66; Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228. [emphasis added] [25] It is recognized that the test for finding whether there are reasonable and probable grounds to affect an arrest is not as exactingas might be the case when considering the validity of a search warrant. In R. v. Baldwin, 2008 NLCA 62, 280 Nfld. & P.E.I.R. 250,Barry, J.A. stated: 23.

Rosenberg J.A., writing for the Court in Polashek, referred to the comments of Doherty J.A. in R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 750, who noted that the test for finding reasonable grounds for arrest is not as exacting asit might be in other situations where reasonable grounds are required, such as in considering the validity of a search warrant:

Mr. Harris' reliance on the search warrant cases is misplaced. Both a justice and an arresting officer must assess the reasonableness ofthe information available to them before acting. It does not follow, however, that information which would not meet the reasonablenessstandard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether thereasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered.

Thedynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, theofficer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officercan afford. The officer must make his or her decision based on available information which is often less than exact or complete.

The lawdoes not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with anapplication for a search warrant. [emphasis added] [26] When assessing whether “reasonable grounds” exist, the appropriate standard is the one of reasonable probability, rather thanproof beyond a reasonable doubt, or a prima facie case (R. v. Debot, (SCC), [1989] 2 S.C.R. 1140). [27] The arresting officer may act on the direction of another officer without being personally aware of the grounds for the arrest.

In such a circumstance the subjective and objective grounds of the directing officer are to be examined. In R. v. Lal (1998), (BC CA), 130 C.C.C. (3d) 413, 113 B.C.A.C. 47, Ryan, J.A. stated: 24. The Crown submitted in this case that proof of the reliability of the information provided to Constable Rankin by CorporalMcKay was unnecessary since a police officer should be entitled to rely on another officer's information without question. I agree that apolice officer is entitled to act upon information given to the officer by another member of the police force.

To suggest that policeofficers cannot act on the assumption that a fellow officer's advice is reliable is unrealistic and would unduly hamper law enforcement.But when the Crown is called upon at trial to justify a search based on reasonable grounds or a stop based on articulable cause, theremust be some evidence placed before the trial judge that the police officer's information was in fact reliable or worthy of acting upon. [28] In this context we are considering the subject and objective grounds of Constable Woodrow, as the officer who arrestedWalker and directed the arrest of Wight by Constable Stone. [29] In considering whether reasonable grounds exist from an objective point of view, the Court must consider the “totality of thecircumstances.” In Debot, Wilson, J., for the majority, considered the nature of evidence justifying a warrantless search (at paragraph60): 60.

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. [emphasis added] [30] Our Court of Appeal in Baldwin, summarized the principles employed by Wilson, J. when evaluating the grounds of belief (atparagraph 13): 13. Wilson J. employed the following principles when evaluating the grounds of belief: (

i) The appropriate standard of proof is one of 'reasonable probability' rather than proof beyond a 'reasonable doubt' or 'prima facie case'(para. 47); (ii) Hearsay evidence may contribute to the establishing of probable cause (para. 52); (iii) The informant information must not be a bald conclusory statement or mere rumor or gossip (para. 55). [31] In the present case the grounds for arresting Walker and Wight came in part from “tips” provided by the CI. This informationmust be assessed as part of the totality of the circumstances. [32] In R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421 Sopinka, J., for the majority of the court, concluded thefollowing legal principles (as established by the Court in Debot and R. v. Greffe, (SCC), [1990] 1 S.C.R. 755) applywhen considering information provided by a confidential information (at paragraphs 81 - 86): 81. (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of atip from an informer, by itself, is insufficient to establish reasonable and probable grounds. 82. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances." There is no formulaic test as towhat this entails. Rather, the court must look to a variety of factors, including: 83. (

a) the degree of detail of the "tip";

84. (

b) the informer's source of knowledge; and 85. (

c) indicia of the informer's reliability, such as past performance or confirmation from other investigative sources. 86. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [ 33 ] Turning now to an application of the foregoing legal principles to the facts. analysis Did the Police have Reasonable Grounds to Arrest Walker and/or Wight? [ 34 ] While neither Walker nor Wight challenged Constable Woodrow’s subjectively held belief, counsel for Walker, in particular, challenged the reliability of the constable’s evidence.

The challenge had two prongs. [ 35 ] First, there were two occasions in his evidence when Constable Woodrow testified that the CI told him that “Walker” was the male selling drugs. The constable testified that on 23 January 2017 the CI said that “Walker” was dealing in large amounts of drugs from Nova Scotia and on 27 January 2017 that “Walker” was on his way back to Nova Scotia to get more drugs. During cross- examination Constable Woodrow corrected himself and clarified that at no point did the CI actually identify the male as “Walker”.

The defence urges me to discredit Constable Woodrow’s testimony on this account, as according to the defence placing words in the mouth of the CI renders the constable’s testimony unreliable. [ 36 ] With respect, I do not agree. Through his own investigation, Constable Woodrow had identified the male as Walker and it is easy to see how his name might inadvertently slip into the constable’s testimony in relating what was told to him by the CI.

The constable was quick to rectify this error when put to him and I see no grounds for the suggestion that Constable Woodrow’s testimony was less than reliable as a result. [ 37 ] Second, the defence also argued that Constable Woodrow’s evidence could not be relied upon in certain key aspects, as there were portions of this testimony that were not referred to in his notes, reports, his preliminary inquiry testimony, or “will-say” statements.

In particular, Constable Woodrow testified on the within application that: • The CI told him the male was selling drugs from his car; • The CI told him that the phone number for the male (which the CI provided) was a number a person would call to purchase drugs; and • The CI told him that the male was associated with the Hell’s Angels. [ 38 ] When Constable Woodrow was challenged on the foregoing evidence, he was resolute in maintaining that his memory was not flawed and these were details actually provided to him by the CI.

I was impressed by the candor of the constable’s testimony and accept his recollection as accurately given. The constable further explained that as the CI’s primary handler it is always a balancing act on how much information to disclose for fear of identifying the CI.

I see no reason to question the reliability of Constable Woodrow’s testimony. [ 39 ] That said, in the instant case whether the police had reasonable grounds for arresting Walker and Wight depends upon whether the informant tip was sufficiently reliable, having regard to the totality of circumstances. [ 40 ] Factors to be considered include the degree of detail of the tip, the informer’s source of knowledge and the indicia of the informer’s reliability, such as past performance, or confirmation from other investigative sources ( Garafoli , para. 81). [ 41 ] In terms of the CI’s reliability based on past performance, Constable Woodrow testified that the CI: • Has a criminal record, but the record does not include crimes of dishonesty such as fraud or mischief; • Is a drug user, although not a heavy user. (Indeed, according to Constable Woodrow the CI’s drug use may no longer be illegal); • Has access to others who use harder drugs;

• Is motivated to provide information for money; • Has been paid for information resulting in arrests in the past; • Has been handled by Constable Woodrow since 2015; • Has provided information leading to three files, multiple arrests and three search warrants; • Has not provided information shown to be unreliable; and • Has provided information on approximately 20 prior occasions, most (but not all) of which have been corroborated.

All involved illegal drugs. [ 42 ] Through other investigative sources Constable Woodrow was able to confirm the following information, as provided by the CI: • The phone number provided by the CI was registered to Walker, the male in whose name the blue Jaguar was registered. • The Jaguar as described by the CI matched that as registered to Walker. Namely, an older model (2004) and blue in colour. • The description of the male generally matched that of Walker; late 50’s with long grey hair and beard.

While the CI used the term “goatee” and Walker has a full gray beard, in my view this distinction is not such as to detract overall from the CI’s description • The CI mistakenly identified the male in the blue Jaguar as a member of the Hell’s Angels. However, he was correct in saying that the male belonged to an outlawed motorcycle gang.

In fact, Walker was found to be a member of the “Gate Keepers”, an outlaw gang affiliated with the Hell’s Angels. • While the quantity of cocaine found in Walker’s vehicle at the time of arrest was less than what the CI told Constable Woodrow, the CI did correctly identify the drug as cocaine. • Police surveillance of Walker on 8 February 2017 in Deer Lake was consistent with the sale of illegal drugs.

Over a 30- minute period Walker was observed making brief stops at various addresses. [ 43 ] The foregoing track record of the CI and Constable Woodrow’s ability to confirm much of the information the CI provided points to a high degree of reliability. [ 44 ] However, on this point, the defence argues that there is more the police could have done to confirm the information of the CI.

Specifically: • The police could have checked the manifest of Marine Atlantic to confirm the travel of Walker and Wight; • The police could have conducted surveillance of Walker’s home and activity in Nova Scotia; • The police did not ask the CI to identify Walker from a photograph; • The police did not check the addresses visited by Walker on 8 February 2017 to see if occupied by known drug users; • The police could have called the number provided by CI and set up an undercover purchase. [ 45 ] For his part, Constable Woodrow acknowledged that a production warrant for Marine Atlantic was an option, but he candidly stated that the decision not to do so was a matter of scarce resources.

In any event, as for the other measures the police did not pursue, this is not the test for whether the arrest of Walker and Wight was lawful. There will always be measures which, in hindsight, the police might have taken, but for resources, or otherwise, chose not to. However, the test is not whether the police have left no stone unturned,

but whether on the totality of the evidence that does exist there were reasonable and probable grounds for the arrest. [ 46 ] In terms of the degree of detail of the information provided, the CI was able to identify: • the type of drugs being sold; • where they were being sold (Deer Lake); • the manner in which the sales were effected (by phoning Walker in his vehicle); • when they were being sold; • where the drugs came from (Nova Scotia); • how they were being brought into the province (Marine Atlantic); • how the drugs were brought onto the ferry (carried by Wight); • the description of Walker; • his affiliation with outlawed biker gangs; • the description of his vehicle; and • the phone number to call for drugs. [ 47 ] What is more, the foregoing information did not result from a single tip, but came over the course of four telephone conversations, starting on 23 January 2017 and ending on 8 February 2017. [ 48 ] In terms of the CI’s source of knowledge, the CI personally saw the drugs in question on 25 January 2017 and on 8 February 2017.

According to Constable Woodrow, the CI got “as close he could get without having to touch it.” [ 49 ] Furthermore, while the CI was not able to name Walker, he was able to name Wight and knew her personally. [ 50 ] While no two cases are identical, I have found two decisions of our Court of Appeal, in particular, to be of assistance in applying of the Garafoli principles to the foregoing facts in this case. [ 51 ] In R. v.

Warford , 2001 NFCA 64 Welsh, J.A. concluded that the informant’s “tip” upon which the police relied in effecting the arrest of Warford was both credible and reliable (at paragraphs 26 – 30): 26. The informant provided a significant amount of detail. He told the police that Warford had received a shipment of cocaine on Monday, August 24th, and that he was selling it for $135. per gram. He said that customers would call Warford and he would deliver the cocaine. As well, he said that Warford had sold a substantial quantity of cocaine at Rumours Nightclub on August 27th.

The informant told the police that Warford drove a black pickup truck. When the officers checked Warford's residence, a truck of that description was parked in the driveway. It was this truck that was being driven by Warford when he was stopped and arrested on September 3rd. The informant told police that Warford always carried some cocaine with him for sale, and that he would be going to Rumours Nightclub the night of September 3rd to sell cocaine. He said Warford usually arrived at the nightclub at about 11:00 p.m.

In fact, on that night, while under police surveillance, Warford left his residence, in the black truck, at about 11:10 p.m. He was stopped and arrested after the police had followed him on a route consistent with arriving at Rumours Nightclub. 27. While the police stopped Warford a short distance from the nightclub, the route he was on, taken together with the time of his departure in the black truck is some confirmation of the informant's "tip". It was, in fact, as much confirmation as the police could be expected to obtain from their surveillance.

28. Further, the information provided by the second informant to the effect that Warford was selling cocaine in the area and was bragging about being sought by police in British Columbia, gave additional support and credence to the informant's information. 29. The police regarded the informant as a credible and reliable source. He had provided information, which had always proven to be reliable, on a number of occasions over about 18 months. 30.

Assessing the totality of the circumstances, a reasonable person in the position of the police would conclude that there were reasonable and probable grounds to believe that Warford was about to commit an indictable offence, trafficking in cocaine. It follows that both prongs of the test were satisfied.

The arrest was lawful. [ 52 ] In Warford , the Court of Appeal observed that the informant had provided reliable information to the police on a number of occasions over about 18 months. [ 53 ] The informant was able to provide a “significant amount of detail”, including a description of the truck driven by Warford, his method of sale (customers would call) the price per gram of cocaine, and where he would be selling the cocaine.

The information provided by a second informant lended additional support and credence to the informant’s information. [ 54 ] In Baldwin the facts were summarized by Barry, J.A. as follows (at paragraphs 2 – 5): 2. On July 27, 2005, R.C.M.P. Constable Bill was at his residence. He received a telephone call at approximately 8:05 p.m. from an informant, who provided the following information: • Wayne Baldwin and Christopher McCabe would be driving west from St.

John's on the Trans Canada Highway within the hour; • They would be in a green Cavalier, license number AWD 761; • McCabe would be the driver, Baldwin the passenger, and the car would contain a quantity of marijuana; • The marijuana was Baldwin's but McCabe was aware it was in the car; • Baldwin's intention was to sell the marijuana in Brigus. 3. Constable Bill testified that the conversation lasted from two to four minutes and the informant sounded as though he were giving "first-hand" information.

The police officer said the informant sounded nervous and seemed concerned that passing the information to Constable Bill might result in identification of the source. 4. Constable Bill said he believed the informant, who had supplied information in the past, corroborated by other sources or other means of investigation, including one occasion when the information led to a drug seizure. Constable Bill stated that the informant was a "recreational" drug user and had a criminal record but not for crimes involving deceit, such as fraud or perjury. 5.

The tip tied in with information Constable Bill said he had about the drug trade in the area. He had heard in previous years from other sources, unconfirmed as to reliability, that Baldwin was involved in drug trafficking. [ 55 ] At approximately 9:25 p.m. police stopped a green Cavalier with the license number reported and two male occupants were placed under arrest. There was nothing visible in the vehicle and a pat down search of the occupants did not find drugs. A police dog was then used to search the car.

The dog found drugs in the sleeve of a coat on the rear seat of the vehicle. [ 56 ] Barry, J.A. concluded that the police had reasonable grounds for the arrest (at paragraph 26): 26. …Here the totality of the circumstances, including the fact that Constable Bill had previously received information from the informant, which was confirmed as reliable when it led to a drug seizure, combined with Constable Bill's knowledge of drug trade in the area and the information (although of unconfirmed reliability) about Baldwin's involvement in drug trafficking, is sufficient to meet the Garofoli test for establishing adequate reliability of a tip.

The degree of detail of the tip, relating to non-criminal aspects of the activity,

would not in itself have been sufficient corroboration here. Constable Bill's belief that the informer's source of knowledge was firsthandis worthy of some consideration, because of the officer's experience. But it is the indicia of the informer's reliability from pastperformance, combined with some slight confirmation from Constable Bill's other investigative sources, that provides the main basis forfinding that, both subjectively and objectively, reasonable grounds for arrest existed. If the informer here had been anonymous the resultmay well have been different.

This analysis is consistent with Warford, although the police had more indicia of the reliability of theinformant in that case. [emphasis added] [57] In Baldwin, Barry, J.A. placed some emphasis on the informer’s reliability from past performance, as well as the arrestingofficer’s “slight confirmation” from other sources about drug trade in the area.

The detail provided the informant was limited to themake and license number of the vehicle Baldwin and McCabe would be travelling in, who would be driving, where they were going andthe type of drugs in their possession. [58] Assessing the totality of the circumstances, I am satisfied that the information provided to Constable Woodrow was at least, ifnot more credible and reliable, than that found by our Court of Appeal in Warford and Baldwin. The CI had a proven track record ofproviding reliable information relating to the sale of illegal drugs, as well as personal knowledge of Wight and her role in the affair.

TheCI provided information on four separate occasions and was able to provide considerable detail regarding Walker and Wight, where thedrugs were sourced, how they were transported and where and how they were sold. [59] For these reasons, I am satisfied that the information provided to Constable Woodrow was both credible and reliable, such thata reasonable person in the position of the police would conclude that there were reasonable and probable grounds to believe Walker andWight were committing an indictable offence. I am further satisfied that Constable Woodrow had the requisite subjective belief.

Thearrest of Walker and Wight was thus lawful. Was the Warrantless Search of the Vehicle Lawful as Incidental to the Arrest? [60] In order to be reasonable a search must be authorized by law, either by a specific statute or common law rule that authorizes thesearch. Since a warrantless search is prima facie unreasonable (R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51, at paragraph11) once an accused has shown that the search was warrantless, the Crown bears the burden of proving on the balance of probabilities,that the search was reasonable. [61] In Baldwin, Barry, J. summarized the common law doctrine of search incidental to arrest (at paragraph 21): 21.

To be authorized under the common law doctrine of search incidental to arrest, the search must be truly incidental in that thepolice must be able to explain, within the purposes recognized in the jurisprudence (protecting the police, protecting the evidence, ordiscovering evidence) or by reference to some other valid purpose, why they conducted the search.

See Caslake. [62] In Baldwin, Barry, J.A. held that the search was incidental to the arrest as it was for the purpose of securing or preservingevidence relating to the offence. [63] In the present circumstances both Walker and Wight acknowledge that the search of Walker’s vehicle for drugs was incidentalto their arrest, and if the arrest was lawful, so too was the search. [64] I agree with counsel, there was no evidence of anything unreasonable in the conduct of the search and it was incidental to thearrest as a means of discovering and protecting evidence. The search was therefore lawful.

If there was a breach of

section 8 of the Charter, is the exclusion of the evidence warranted by section 24(2)? [65] As there was no breach of the Charter, it is not necessary to consider exclusion of the evidence. disposition [66] The arrest of Walker and Wight on 8 February 2017 was lawful and the search of Walker’s vehicle was incidental to that arrestand also lawful. [67] The application of Walker and Wight, asserting a breach of their Charter rights, is dismissed. _____________________________ Donald H. Burrage Justice