R v Kupchik, 2020 MBCA 26

Citation: R v Kupchik, 2020 MBCA 26 Date: 20200225 Docket: AR19-30-09222 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: her majesty the queen ) K. E. Smith ) for the Appellant Respondent ) ) A. M. Parashin- and - ) for the Respondent ) daniel john kupchik ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) February 25, 2020 mainella JA (for the Court): [1] The accused appeals his conviction for possession of 81.75 pounds of cannabis (marihuana) for the purpose oftrafficking.

The drugs and related trafficking paraphernalia were found in his residence located near Petersfield, Manitoba during theexecution of a search warrant. [2] The issue on appeal is whether the trial judge erred in concluding that the authorising justice could have foundreasonable grounds (i.e., credibly-based probability) to issue the search warrant based on the totality of the circumstances in theinformation to obtain a search warrant (the ITO), as redacted (see R v Garofoli, (SCC), [1990] 2 SCR 1421 at 1452; andR v Pilbeam, 2018 MBCA 128 at paras 6-8). [3] The ITO was based on information provided by a confidential informant (the CI).

In reaching his decision, the trialjudge assessed the CI’s information based on the “three-C’s” test discussed in R v Debot, (SCC), [1989] 2 SCR 1140 at1168 (i.e., to what extent is the information compelling, credible and corroborated) (see also Garofoli at p 1457; and Pilbeam at para 14). [4] The accused argues that the information in the ITO was insufficient to establish reasonable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place because the CI’sinformation was not compelling, the CI was unproven and had an unknown motive, and the police investigation did not confirm detailsof the criminal activity the CI said was occurring. [5] While the function a judge performs when conducting a Garofoli review is important, the nature of the review islimited and starts from the presumption that the search warrant was valid (see Pilbeam at paras 6-8).

We are satisfied that the trial judgeselected and applied the correct standard on the Garofoli review and see no reason not to defer to his conclusion that, when the ITO isread in its entire context, there was a reasonable basis on which the authorising justice could have issued the search warrant (see Pilbeamat para 9). [6] In particular, it was open to the trial judge to find the CI’s information compelling, as it was, for the most part, recent(six days old) and based on first-hand observations of criminality made inside the accused’s residence.

Important to the significance ofthe CI’s observations of “pounds of marihuana” being in the accused’s residence is the further fact in the ITO that the CI had personalknowledge that the accused was a well-established marihuana dealer regularly trafficking at the pound level (see R v James, 2019 ONCA288 at para 55, rev’d 2019 SCC 52). In addition, there were no obvious concerns with the CI’s credibility except that his or her genuineknowledge about the local drug trade had not yet led to any specific arrest or seizures as the CI was new.

Finally, a number of pieces ofinformation provided by the CI about the accused’s lifestyle and history, including some facts not well known, were confirmed by policeinvestigation prior to the application for the search warrant. [7] In the result, the appeal is dismissed.

JA JA JA