R. v. Jason James Goodwin, 2016 NSSC 283

SUPREME COURT OF Nova Scotia Citation: R. v. Jason James Goodwin , 2016 NSSC 283 Date: 20160831 Docket: Amherst , No. CRAM 441057 Registry: Amherst Between: Her Majesty The Queen v. Jason James Goodwin DECISION VOIR DIRE Judge: The Honourable Justice Jeffrey R. Hunt Heard: April 27 & June 8, 2016, in Amherst, Nova Scotia Oral Decision: Written Release: August 31, 2016 October 20, 2016 Counsel: Catherine Hirbour, Solicitor for the Crown Christian Libotte, Solicitor for the Defendant Charge: On or about the 16 th day of January, 2015 at or near Amherst, County of Cumberland, Province of Nova Scotia, did traffic in a substance included in

Schedule 1 to wit: cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act; AND FURTHERMORE at the same time and at the same place did: possess a substance included in

Schedule 1 to wit: cocaine, for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act ; and AND FURTHERMORE at the same time and at the same place did: possess a substance included in

Schedule II to wit: Cannabis (marijuana) contrary to Section 4(1) of the Controlled Drugs and Substances Act. Subject: Unreasonable search and seizure; application of s.24(2) of Canadian Charter of Rights and Freedoms

Summary: Defendant was arrested and searched incident to arrest. The search resulted in the seizure of cocaine and cannabis. Issues: 1. Did police have reasonable grounds to arrest? 2. Was search of person and vehicle incident to arrest reasonable? 3. Was search of cell phone reasonable? 4. Is any remedy indicated pursuant to s. 24(2) ? Result: Reasonable and probable grounds for arrest established. Search was lawful. S. 24(2) analysis conducted in the alternative. Evidence would not have been excluded. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET

SUPREME COURT OF Nova Scotia Citation: R. v. Goodwin , 2016 NSSC 283 Date: 20160831 Docket: Amherst , No. CRAM 441057 Registry: Amherst Between: Her Majesty The Queen v. Jason James Goodwin DECISION VOIR DIRE Judge: The Honourable Justice Jeffrey R. Hunt Heard: April 27 & June 8, 2016, in Amherst, Nova Scotia Oral Decision: Written Release: August 31, 2016 October 20, 2016 Counsel: Catherine Hirbour, Solicitor for the Crown Christian Libotte, Solicitor for the Defendant Charge: On or about the 16 th day of January, 2015 at or near Amherst, County of Cumberland, Province of Nova Scotia, did traffic in a substance included in

Schedule 1 to wit: cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act; AND FURTHERMORE at the same time and at the same place did: possess a substance included in

Schedule 1 to wit: cocaine, for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act ; and AND FURTHERMORE at the same time and at the same place did: possess a substance included in

Schedule II to wit: Cannabis (marijuana) contrary to Section 4(1) of the Controlled Drugs and Substances Act. By the Court: Opening Remarks [ 1 ] We are coming onto the record now in the matter of R. v. Jason James Goodwin. It is Amherst file 441057. As indicated last day we have reconvened today for purposes of an oral decision with respect to the Voir Dire on Charter issues raised by the defence.

In the event there oral reasons are reduced to writing I would reserve my right to edit it for grammar, readability and things of that nature but not, obviously, in any way changing the analysis or the outcome. [ 2 ] In delivering the reasons today I may omit case cites, which I do not think would add a great deal, especially where the case law is very well known to counsel and was argued extensively and effectively during submissions.

DECISION [ 3 ] Jason James Goodwin is charged with offences contrary to Section 5(1) of the Controlled Drugs and Substances Act , Section 5(2) of the Controlled Drugs and Substances Act and Section 4(1) of the Controlled Drugs and Substances Act . The first two counts are stated to relate to cocaine with the last count relating to marijuana.

[ 4 ] This matter proceeded by way of a Voir Dire on a Notice of Charter Motion. Mr. Goodwin alleges that his

Section 8 , 9 and 10(

b) Charter rights were breached during his arrest and by way of remedy he seeks a staying of charges or the application of a Section 24(2) remedy with respect to the evidence seized. [ 5 ] There was no issue with respect to Mr. Goodwin’s standing to advance the motion. Additionally, for purposes of the Voir Dire there were no issues of identity, jurisdiction, or continuity of exhibits. Six witnesses were called by the Crown. No witnesses were called by the Defence, however, Mr. Larocque conducted searching and thorough cross-examinations of all Crown witnesses.

Summary of the Issues 1. Did the Police have reasonable grounds to arrest Jason Goodwin on January 16, 2015 or was he arbitrarily detained? 2. Was the search of his person and vehicle incident to arrest reasonable? 3. Was the search of the cell phone reasonable? 4. If any breach is found is a remedy indicated pursuant to Section 24(2) ? [ 6 ] I do intend to canvass at the outset of this decision a

summary of the burdens of proof and an outline of the law to be applied in this matter. I am doing this so that I can better keep in focus these evidentiary burdens throughout my analysis of the evidence and issues. [ 7 ] The Defendant seeks a Charter remedy. Accordingly, as the Applicant, he carries the burden on a balance of probabilities to demonstrate that his Charter rights have been infringed such that a Section 24(2) remedy becomes warranted. [ 8 ] When the question of lawful arrest is put in issue by the Defence the Crown has the burden of establishing a lawful arrest.

The Crown acknowledges that this must be on both subjective and objective grounds. If the Crown establishes a lawful arrest, the Defence has the burden shift back to it to prove on a balance of probabilities a Charter breach arising from the search. [ 9 ] Section 495(1) (

a) of the Criminal Code permits an officer to arrest without warrant a person who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence. Clearly here the critical element is what constitutes “reasonable grounds to believe”. This law has been summarized as follows: 1. The “reasonable grounds to believe” standard requires something more than mere suspicion. It is a standard of reasonable probability. The standard at this stage clearly is not that of proof beyond a reasonable doubt. The case law states that it is not proof of a prima facie case.

Case law has called it “reasonable belief” and says it encompasses a practical non-technical common sense assessment of the totality of the circumstances at the time the arrest decision is made. 2. The arresting officer’s subjective belief that the requisite reasonable grounds exist is insufficient in and of itself. Those grounds must also be justifiable on an objective analysis. Determining whether the arresting officer’s grounds were objectively reasonable involves an assessment of all the facts known at the time the arrest was made. 3.

Whether other information, had it been available, would have strengthened or weakened the belief is not a relevant consideration at this stage. 4. The weighing of whether objective grounds exist involves determining whether a reasonable person in the place of the officer with the same experience, training, knowledge and skills would have reached the same conclusion. If this is the determination then the grounds for arrest will be considered to have been objectively reasonable. 5. With respect to the use of tips from informants or sources much case law direction exists.

To the extent a case involves reliance on a tip whether from an anonymous source or a confidential informant, Courts will consider a variety of factors including: (

a) The degree of detail provided; (

b) Information as to the informant’s source of knowledge; (

c) Indicia of the informant’s reliability, including the ability to confirm the accuracy of any of the provided information. Past proven reliability will play a role in this weighing process. Strength in one area can compensate for weakness in another. 6. The expertise and past experience of the arresting officer can never be an excuse for arbitrary arrest. The fact that incriminatory evidence is subsequently found cannot be used after the fact to bolster the justification for the officer’s belief. Overview of Evidence [ 10 ] I will turn to a

summary of the evidence. I want to note that while every piece of the testimony may not be summarized here I have weighed and considered all the evidence in arriving at my conclusions.

Constable Theriault [ 11 ] Constable Louis Theriault was the first witness. Constable Theriault is currently stationed out of the Codiac, New Brunswick, RCMP Detachment. He had previously been in Chediac and Sackville, New Brunswick. He described the significant experience he had within this geographic region. At the time of the events in question in this matter Constable Theriault was the handler of a numbered confidential source.

He had been introduced to this source in October, 2014 by Constable Vincent who was a subsequent witness in this matter. [ 12 ] On October 17, 2014 Constable Theriault met with the coded source for the first time along with Constable Vincent. Constable Theriault and Constable Vincent had a past shared experience of working together on investigations. Following his introduction to Constable Theriault the source provided Constable Theriault with confidential tips on a number of occasions.

On one of these occasions, which the Officer believed to be in December, 2014, the coded source provided information that Jason Goodwin was selling cocaine. This information was tracked on a source briefing and filed. [ 13 ] Constable Theriault testified that on January 16, 2015 he received a call from Constable Paul Vincent asking if he had information regarding Jason Goodwin and criminal conduct. Constable Theriault testified he told Constable Vincent that he had reliable source information that Goodwin was trafficking in/selling cocaine. Not much more was said.

Constable Theriault testified that he had confidence in the source based on the experience he had since October, 2014 with the source. Constable Theriault testified that in his personal dealings with the coded source, that source had provided information which on three occasions was used to secure search warrants. He believed in the reliability of the information provided by the source. [ 14 ] In cross-examination Constable Theriault was questioned about how he came to be the handler of the coded source.

Constable Theriault acknowledged the source had been inactive for some time before becoming reactivated under Constable Theriault. He agreed that Constable Vincent had made the introduction and that after October, 2014 he considered himself a co-handler. Constable Theriault was questioned about his knowledge of 45 occasions that the source was said to have supplied information, this was according to the information to obtain the search warrant.

He said the source had personally supplied him with information on a number of occasions while under his control, the total number of occasions expressed in the ITO would have been prior occasions to other handlers or officers. [ 15 ] Constable Theriault was asked, in cross-examination, what he had done, if anything, in the case of the information received regarding Goodwin to confirm its credibility, reliability, or recency. He indicated that he had checked the data base to confirm the source had not in the past provided information which was proven unreliable. This was found to be the case.

He then scored the information as being reliable/believable. He was questioned as to whether he tried to check the source information with other sources or investigations. Constable Theriault said he checked the data bases of other source information to see if similar information was in the data base. [ 16 ] In speaking of the events of January 16, 2015, Constable Theriault recounted his recollection of his involvement with the events that day. Constable Vincent had reached him at home, he was off duty. He asked him if he had any information with respect to Goodwin.

He related the information he had regarding the tip and the cocaine. Constable Vincent asked him what Goodwin was driving. Constable Theriault shared with him information which he had learned through observation. This being that Goodwin was believed to be driving a light coloured blue car. He said he spoke to Constable Vincent for only a short time, perhaps a minute and half. Constable Theriault acknowledged that the source had been paid for the information provided. Constable Hall [ 17 ] The Crown called Constable Jud Hall. He has been a Police Officer for approximately nine years.

At the time in question he was in the Cumberland Street Crime Unit. He was, on January 16, 2015, in plain clothes and in an unmarked police vehicle. He described his duties that day as being part of the operation which was to carry out surveillance on the residence of Jamie Trenholm. This surveillance was as a result of source information that Trenholm was trafficking in marijuana and receiving cocaine for personal use from a source or somebody in New Brunswick. His source of information was explored in evidence.

Constable Hall had received the information from Constable Vincent. [ 18 ] The mechanics of the surveillance was dealt with in evidence. Constable Hall established himself in what he considered to be an unobtrusive position with a view of the mobile home residence of Trenholm. During the surveillance Constable Hall observed a blue Mitsubishi Lancer arrive at the residence. He observed the vehicle enter the driveway. He saw a male exit.

When the vehicle entered the driveway until when Constable Hall observed the male exit the mobile home and enter the vehicle again he estimates it was approximately three minutes. [ 19 ] Constable Hall moved his vehicle in an effort to gain better visibility. It was during this move that he saw the male exiting the mobile home and entering the blue Mitsubishi. The vehicle proceeded from the residence, drove within the town of Amherst and eventually went to the parking lot of the Highland Market. This was a short drive. During this drive Constable Vincent concluded that Mr. Goodwin was to be stopped.

Constable Hall learned this over the radio. Constable Hall stated that he understood the decision to arrest was based on source information and the short duration visit. Constable Hall and Constable Vincent believed they both arrived in the Highland Market parking lot at nearly the same time. They approached Mr. Goodwin as he crossed the parking lot toward the market. Goodwin was asked his name. He identified himself. Constable Hall identified himself and told Goodwin he was under arrest. Constable Vincent reiterated this and said the arrest was for trafficking. [ 20 ] Constable Hall handcuffed Mr. Goodwin.

He indicated that Constable Vincent and Constable Munn carried out the search incident to arrest and located the narcotics on Mr. Goodwin’s person. Following this Mr. Goodwin was taken back to the RCMP detachment. At that time the Mitsubishi vehicle remained at the market site parking lot. [ 21 ] Constable Hall testified that Constable Munn and he searched the vehicle. He stated that further narcotics were located. He advised this was marijuana. Constable Hall believes it was Constable Vincent who gave the Defendant his Charter and caution warning

together with the indication of his right to consult counsel. Constable Hall was asked what the purpose of searching the vehicle at the Highland Market. He stated it was for evidence of trafficking. He said he did not believe any narcotics in the vehicle were in plain view. [ 22 ] Constable Hall testified about his interactions with the Defendant’s cell phone. He indicated that he and Constable Maddison conducted what he referred to as a cursory search of Mr. Goodwin’s cell phone. This was approximately a half hour after arrest and back at the detachment.

Certain messages, which he identified as “face book messaging”, was observed by the Officers. Pictures of screen captures were introduced into evidence. [ 23 ] Constable Hall testified that he had no familiarity with the confidential informant who he identified as Constable Vincent’s contact. He did indicate that in terms of his personal involvement he was aware that at some point the license plate of the vehicle was run. He stated this was through the PROS database. His evidence was the ownership returned to the corporate name “Rock and Roll Motors”. Mr.

Goodwin was noted as having been identified as a driver at some point in the past. This was the information which was being related over the radio system with all members of the surveillance team having access to those radios. [ 24 ] In cross-examination Constable Hall acknowledged that his notebook notes do not contain any reference to Constable Vincent or Constable Munn having received any source information about Mr. Goodwin. Also in cross-examination he described further what he could see of the events at the Trenholm mobile home once the Mitsubishi arrived in the lane.

He stated that he could see it was driven by a male. He did not see the male enter the house. He could not see if the male was carrying anything. He did drive by the house to improve his vantage. It was then he saw the male exit the home. He says he did not make any observations of the male having anything in his hands at that time. [ 25 ] Constable Hall was asked whether he had made the decision to stop and arrest. He said the decision was Constable Vincent’s based on Constable Vincent’s formed belief. Constable Vincent [ 26 ] Constable Paul Vincent gave evidence as well.

He was the lead Officer involved in the matter. Constable Vincent is a member of the RCMP and had been for 11 years. In January, 2015 he was working on the Cumberland Integrated Street Crime Unit. He was there for approximately six and one-half years. The Integrated Unit worked on a variety of street level criminal activities such as drug activity, break and enters, thefts and other matters. [ 27 ] Constable Vincent was asked about source information which came into his hands in this matter. He testified the source information which came forward was from a source which he had handled for four years.

The source provided information in the past but there had been a period of time during which Constable Vincent had not had contact with the source. A contact again commenced, he said, in October of 2014. [ 28 ] Constable Vincent stated that after a period of time of the source being not active, the source began sharing information again. He stated that the Officer who had previously co-handled the source was no longer in the unit so Constable Vincent reached out to Constable Theriault who agreed to co-handle the source together with Constable Vincent. They met the source on October 17, 2014.

Constable Vincent was asked his involvement with the source after October 17, 2014. He said that after that date he believed the source was in contact with Constable Theriault. [ 29 ] His next stated involvement with the source was said to be January 13, 2015 when the source made a telephone report to Constable Vincent about Jamie Trenholm. The information was that he believed Trenholm, who he believed to be involved in the drug trade, was selling marijuana and getting cocaine delivered to him by someone from New Brunswick for personal use.

Constable Vincent testified that he shared the information with the Street Crime Unit members. After doing what he termed ‘light surveillance’ on January 14, 2015 he planned a more comprehensive surveillance of Trenholm’s residence for Friday, January 16, 2015. During the surveillance Constable Munn, who was one of the team, advised over the radio that a blue Mitsubishi vehicle had entered the driveway. A male exited the vehicle and went to the residence and went inside.

Constable Munn provided the plate number and Corporal Crystal Ellis, who was at the detachment, ran the plate through a query in the PROS database. [ 30 ] Constable Vincent testified that the vehicle left the driveway and began driving within the town. While this was happening Corporal Ellis reported over the radio that the vehicle had come back as being associated to Rock and Roll Motors out of Moncton. [ 31 ] Constable Vincent testified that he was familiar with this dealership. He said he knew it was owned by an individual by the name of Joey Fagan.

Constable Vincent stated that he believed this individual was suspected in the past of involvement in the drug trade. He termed this as suspected involvement in high level cocaine trafficking. Constable Vincent did not share a great deal of information about the source of this knowledge, its basis or recency. He stated his belief was that Fagan had been under investigation in the past in New Brunswick by authorities.

Nothing was said about the outcome or disposition of this investigation. [ 32 ] Constable Vincent also learned from Corporal Ellis that the name Jason Goodwin came back as associated with the vehicle as someone who had been reported as having been observed operating it in the past. This was reported as suspicious activity by the Sackville RCMP within the database. This information prompted Constable Vincent to put a call to the Sackville RCMP where he was directed eventually to Constable Theriault.

Constable Theriault and Constable Vincent had a quick conversation during which Constable Theriault was reported by Constable Vincent to say as follows: Recently he had received information that Goodwin was trafficking cocaine and was driving a blue sports vehicle. [ 33 ] Constable Vincent testified that Constable Theriault related this to him as “reliable information” that had been received.

Constable Vincent stated that during this call it was not realized that Constable Theriault’s source was the same source as Constable Vincent had been relying on in pursuing the Trenholm surveillance. [ 34 ] In his evidence Constable Vincent summed up his view of his state of knowledge at that time as follows:

• There had been a short duration visit which in his view and experience was consistent with drug activity. • The short duration visit was to a site he had information suggesting was a place where drug activity was taking place. • The vehicle was registered, he believed, to Rock and Roll Motors which he believed was associated to Joey Fagan who he understood to have been the target of what he termed “high level cocaine trafficking investigations in the past”. • He had Corporal Ellis’ information that Jason Goodwin had been reported as a driver in the past of that vehicle. • He listed, as well, the information he had received from Constable Theriault that Goodwin was reported to be involved in cocaine trafficking. [ 35 ] Constable Vincent said that he based his decision to arrest on what he gathered from the beginning of the investigation until this point.

He identified the information he received two days earlier about Trenholme receiving cocaine for personal use from a New Brunswick source. He pointed to Constable Theriault’s information shared with him that Goodwin was involved in cocaine trafficking. [ 36 ] Constable Vincent was asked about the history of past reliability of the source. He stated he had a four year history with the source. He believed there were 45 occasions of information being provided. He testified that on 10 previous occasions the information provided lead to a search warrant, with the search warrant resulting in the seizure of drugs.

He termed the reliability of the source as “strong, fast, proven reliability”. He testified that on none of the occasions where the source’s information was used to ground a search warrant did the subsequent search turn up negative for illegal drugs. In other words, drugs were located each time a search warrant was obtained and executed based on this source’s information.

When asked about his understanding of the source’s basis for knowledge for the January 13 th information, he described it as being “on a first hand basis” with the source having “intimate knowledge” of the information. [ 37 ] In cross-examination Constable Vincent was questioned about steps he took to confirm information received from the source. Defence counsel had Constable Vincent confirm that both officers were relying upon a single source. The Officer referred to the surveillance which was undertaken and to what he accepted as corroboration. [ 38 ] Constable Vincent described the process of arrest of Mr.

Goodwin. Mr. Goodwin was stopped on his way into the market. He was asked to identify himself which he did by name. He was told he was under arrest for trafficking cocaine. He was then subjected to a search which was described as “incidental to arrest”. During this process the narcotics were identified in the pocket of the accused. [ 39 ] Constable Vincent testified the only question he asked Goodwin prior to the arrest was his name. He described the process of giving Goodwin his rights and caution. Goodwin was transported to the detachment where his contact with counsel was facilitated.

The length of time from arrest to consultation with counsel was approximately twenty minutes. Constable Munn [ 40 ] Constable Garret Munn was called by the Crown. Constable Munn was a member of the surveillance team. He described his involvement in the surveillance stop and subsequent search of the vehicle. He did not have any direct contact with any outside sources. His involvement was more peripheral and largely in a supporting role. Corporal Ellis [ 41 ] Similarly Corporal Crystal Ellis gave brief evidence as to her involvement.

This was largely limited to conducting the PROS database search which yielded the reference to the vehicle dealership in Moncton and the reference to Jason Goodwin as an observed operator of the vehicle. It was this information which lead to Constable Vincent’s call to Constable Theriault in Sackville. Corporal Nelson [ 42 ] The final Crown witness was Corporal Tyson Nelson who was accepted as an expert on habits of use, sale and packaging of cocaine and marijuana. His report was introduced in evidence. Many portions of the reports contents would be more directed towards issues relating to the trial proper.

However, there was evidence relating to whether the cocaine located on Mr. Goodwin’s person was more consistent with trafficking or personal use of some variety. This could be relevant on a section 24(2) analyses as part of the balancing exercise. [ 43 ] The most compelling evidence in this regard was the nature of the packaging which was broken down packaging described as 25 dime bags. Positions of the Parties [ 44 ] The Defence’s concerns, as stated in their submissions and written brief, would include that the tips had a lack of detail. They suggest the tips were mere conclusionary statements.

In their submission there was a lack of compelling corroboration. The Defence notes that the surveillance at the Trenholme site was of very short duration. They say that what was observed was innocuous behaviour. While it might be acknowledged by the Defence there was some past history of reliability of the source, Constable Vincent acknowledged there was a period where the source was not sharing information for some time. The amount of time was not clear. [ 45 ] The Defence argues that if Mr.

Goodwin was arrestable then in their view any driver of a blue vehicle with New Brunswick plates and visiting that address was in jeopardy of being detained. The Crown disputes this. The Defence questions the recency of the tip regarding Jason Goodwin. The evidence was that the general tip was related in December, 2014. Beyond that they would say it lacked detail and admittedly was insufficient in and of itself to be the basis of any attempt to secure a warrant. [ 46 ] The Defence argued that while a series of short duration visits may prove something in the right context, a single short duration

visit is simply too equivocal. In other words, it can simply be consistent with too many other non-criminal activities. The Defence saysthere was no evidence of what happened inside the residence.

There was no evidence of the male having carried anything in or out of theresidence. [47] The Defence argues it is relevant that during the time frame when the arrest decision was being weighed by the Constable hewas operating under the misapprehension that two separate sources had supplied the information. [48] The Crown’s position in response would include the fact that admittedly it was a single source and there was a degree ofconfusion about this. But at the time Constable Vincent was making the arrest decision he had a high degree of confidence which wasderived from a number of elements.

There was a history of strong past proven reliability in the source which was laid out in theevidence. Constable Vincent had the necessary subjective belief in his grounds. [49] Moving on to the objective analysis of the grounds for arrest - the Crown submits that we must weigh the totality of thecircumstances then believed to exist. Weakness in one area can be made up to some degree by strength in another. They would point toone immediate area of strength being the past history of strong proven reliability of the source.

The Crown points to the significance ofthe short duration visit as being corroborative of the other information being assessed by the Officer. [50] Appellant Courts have given clear direction as to how trial courts must treat officer training and experience within theweighing exercise. I will refer to this direction briefly. The role of a police officer’s experience was expressly considered and discussedin R. v. MacKenzie, 2013 SCC 50 as well as R. v. Cahill, 2013 SCC 49. [51] In MacKenzie the Court noted the following: 38 Parenthetically I note that the reference in R. v.

Mann to “reasonable grounds to detain” has led to some confusion for the bench andbar alike. In the context of detention, reasonable grounds means reasonable grounds to suspect that an individual is involved in particularcriminal activity which is synonymous with reasonable suspicion. However, in other context, such as an arrest, reasonable groundsmeans reasonable grounds to believe that an individual is or has been involved in a particular offence which is synonymous withreasonable and probable grounds.

The former concept is a matter of possibilities while the latter is one of probabilities. …. 62 Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police Officers are trained to detect criminal activity. That is their job.

They do it every day and because of that a fact or considerationwhich might have no significance to a lay person can sometimes be quite consequential in the hands of the police Sights, sounds, movement, body language, patterns of behaviour and the like are part of an officers stock in trade and courts shouldconsider this when assessing whether their evidence in any given case passes the reasonable suspicion threshold.

Thus, in assessing whether a case for reasonable suspicion has been made out the analyses of objective reasonableness should beconducted through the lens of a reasonable person “standing in the shoes of the Police Officer”. That is not to say, however, that Police training and experience must be accepted uncritically by the courts. As my colleague noted in R.v. Cahill “…hunches or intuition grounded in an officer’s experience will not suffice”. Nor is deference necessarily owed to a PoliceOfficer’s view of the circumstances because of his or her training or experience in the field.

Reasonable suspicion after all is anobjective standard that must stand up in independent scrutiny. [52] In the Ontario Court of Appeal case of R. v. Woe, Epstein J. A. reiterated the above comments from the Supreme Court ofCanada about police training and experience and observed further: According to Moldavor J., this particular perspective is not just important it is an essential part of the trail judge’s consideration ofwhether the officer’s conclusion that there were reasonable and probable grounds to arrest was objectively reasonable.

In fact at para 60Moldavor J. said: “As a matter of law a trial judge must appreciate the significance of police experience and training when evaluating theprobative value of evidence. [53] While, as noted, the guidance provided by Moldavor J. was in the context of reasonable suspicion, the obligation to consider theevidence the police relied upon from this particular vantage point applies equally to the objective reasonableness analysis for reasonableand probable grounds to arrest – R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. [54]

Section 495 of the Criminal Code governs police authority to make warrantless arrests.

It provides as follows: A peace officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, hebelieves has committed or is about to commit an indictable offence; Reasonable and probable grounds must be present for an arrest to be valid under s.9 of the Charter which protects individuals againstarbitrary arrest and detention. [55] The Supreme Court of Canada set out the test for identifying reasonable grounds for arrest in the previously cited case of R. v.Storrey, supra. [56] The decision directs as follows: 1.

It must have been objectively reasonable (a reasonable person would think it was appropriate); and

2. The arresting officer must subjectively believe that there were reasonable and probable grounds for the arrest at the time the arrest ismade. [57] What will constitute reasonable grounds is more than mere suspicion but does not require proof on a balance of probabilities.

The Police do not need to establish that their belief with regard to the grounds for arrest is the only possible conclusion. [58] In the present case Constable Vincent was the Officer who directed the arrest and the Court must, therefore, assess whether hehad sufficiently reasonable and probable grounds. [59] Whether Constable Vincent subjectively believed that reasonable and probable grounds existed is not seriously contested here. The issue before the Court is whether that belief was objectively reasonable.

Constable Vincent referred to information obtained byPolice from a confidential informant as contributing to his belief that there were reasonable and probable grounds for arrest. [60] The Supreme Court of Canada has set out the following factors to assess the reliability of informant evidence: To be assessed is: 1.Whether the informant was credible; 2.Whether the information predicting the commission of a criminal offence was compelling; and 3.Whether the information was corroborated by police investigation.

These factors are not separate tests as weaknesses in one may be overcome by strength within the other elements of the test. It is notnecessary that every aspect of the source information be corroborated in order for it to be considered reliable.

However, the level ofverification required will vary depending on the nature of the information and the reliability of the source, the past proven reliability ofthe source, or present reliability which can be demonstrated. [61] The mere assertion by an informant that a certain person is engaged criminal activity or that drugs will be found at a certain place does not necessarily provide a sufficient basis for granting of a warrant oreffecting an arrest.

Such factors as the degree of or lack of detail provided in the tip, the existence of or lack of supporting policeinvestigation and/or reliable information and the existence of or lack of past proven reliability of the source will be weighed. [62] As Martin J. A. stated in R. v. Debot, (ON CA), [1986] O.J. 994 (Ont.CA): 17 The underlying circumstances disclosed by the informer for his or her conclusion must be set out thus enabling the Justice to satisfyhim or herself that there are reasonable grounds for believing what is alleged. [63] The Supreme Court of Canada affirmed this decision in R. v.

Debot, (SCC), [1989] SCJ No. 118. Wilson, J.stated: 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 commission of a criminal offence compelling? Secondly, where the information was basedon a tip originating from a source outside the police, was the source credible? Finally, was the information corroborated by policeinvestigation 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 a totality of thecircumstances must meet the standard of reasonableness. Weakness in one area to some extent may be compensated by strengths in theother two. [64] She went on to comment: 70 The level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or wherefewer details are provided and the risk of innocent coincidence is greater. The Court is required to assess reasonable grounds in thetotality of the circumstances and not on the informant’s evidence alone.

This requirement to assess must not be on a piece meal basis butin totality. It is appropriate to consider the other observations and information learned by the Officer. [65] The surveillance confirmed that a blue Mitsubishi previously driven at some point in the past by Jason Goodwin drove into theTrenholm residence for a short time. Admittedly the surveillance was for a matter of minutes. It did, however, provide ConstableVincent with the pathway to confirm the information of Goodwin’s name as the person connected to the vehicle.

This led him toConstable Theriault’s information which he was permitted to rely on as being stated to be reliable information coming from a fellowOfficer. [66] I find that on analysing all of the circumstances together, and not on a piece meal basis, the totality of what had been learnedcould form a basis of reasonable probability or reasonable belief. Do I recognize the frailties as to the degree of specifics in the tip? Yes,I do. However, on balance I find that the past proven reliability must be weighed as part of the exercise of determining objectivereasonable probability.

[ 67 ] I note the case of R. v. Dunbar , 2008 NSJ 290 , where the Court in that case relied upon the past proven reliability of the informant. That informant was stated to have never given information found to be unreliable. There are parallels certainly to the evidence in this case. This was found by the Court to be a factor sufficient to overcome the somewhat lack of detail in the tip which the Judge in that case did acknowledge. The Court stated at paragraph 26: I am satisfied, based on Constable Willet’s evidence, that the confidential informer in this case has been a very reliable source.

Constable Willet’s confirmation of his source’s reliability was both compelling and convincing Notably he testified that the source with whom he has been dealing for two years had never provided information that was inaccurate or untrue. It is fundamental to the assessment of the lawfulness of an arrest based on a tip that the Court be in a position to make an independent assessment of the facts that ground the belief that the individual is involved in the alleged criminal activity. In this case, drug trafficking.

The Court must examine the totality of the circumstances to assess the reasonableness of the Police Officer’s belief that there were grounds for arrest. In weighing the totality of the circumstances it is not essential in my opinion that there have been independent corroboration of the tip information where the information is compelling as it was here and originated from a credible source. Corroboration functions to verify the reliability of the top and that reliability was established here through the sources past performance. Garofoli emphasises past performance of the source as the standard to be applied.

Although the presence of a distinctive vehicle as in R v. Silver was not a feature here, the factors that were as described in Silver at paragraph 13, what the police knew about the accused, the substance of the information given to them by the informer as well as that person’s proven reliability are sufficient in my opinion to assure the tips reliability and justify the reasonableness of its use to ground the arrest of Mr. Dunbar. [ 68 ] In the decision of Justice Arnold in R. v. MacDonald, 2015 NSSC 297 , was addressed a number of times in written submissions and oral submissions.

The critical distinguishing factor, in my view, is found at paragraph 59 where the Court notes the following: The Court was not made aware of anything that would confirm that Constable Underwood’s source had a clear past proven record of reliability. I find this finding of fact to be a significant distinguishing factor. I am of the view that the past proven reliability of the source here distinguishes this case from that of R. v.

MacDonald . [ 69 ] This strength (past proven reliability) does weigh heavily in the overall analysis and bears out the objective reasonableness of the Officer’s conclusion. [ 70 ] I find the arrest of the accused was authorized by s.495(1) (

b) of the Criminal Code . Consequently I find the arrest to have been lawful. [ 71 ] With respect to s.8 of the Criminal Code , the accused was searched incident to arrest and as the arrest was lawful, I find the search incident to have been lawful within the scope of Gouthier v. Langoir , 1991 SCR 158. Accordingly, there is no s.8 breach made out. [ 72 ] The issue with respect to

section 10(

b) was not strenuously argued. I find no s. 10(

b) breach. Section 24(2) [ 73 ] As an alternative I do propose to proceed through a s. 24(2) analysis as if I had concluded that a breach had occurred. To be clear, this is being proceeded with in the alternative [ 74 ] It is well known that an unlawful search is presumptively unreasonable. The burden is on the Crown to satisfy that the seized material evidence should nonetheless be admitted as evidence.

The test would be whether in examining the factors, would a reasonable person informed of all the relevant circumstances and aware of the values underpinning the Charter conclude that the admission of the evidence would bring the administration of justice into disrepute. [ 75 ] The Supreme Court in R. v. Grant , [2009] SCC 32 set out the following test for trial courts to consider when assessing whether evidence which was obtained in violation of the Charter would bring the administration of justice into disrepute were it to appear in the trial.

Seriousness of the Charter -Infringing State Conduct , which requires an assessment of whether the admission of the evidence would bring the administration of justice into disrepute, and focuses on the severity of the state conduct that led to the Charter breach (which includes an analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith), Impact on the Charter -Protected Interests of the Accused , which focuses on how the accused person was affected by the state conduct (which includes an analysis of the intrusiveness into the person's privacy, the direct impact on the right not to be forced to self- incriminate, and the effect on the person's human dignity), and Society's Interest in an Adjudication on the Merits , which focuses on how reliable the evidence is in light of the nature of the Charter breach. [ 76 ] In conducting this balancing exercise the Court is required to assess the above factors and determine whether a reasonable person informed of the circumstances of the case and aware of the values underlying the Charter would conclude that the admission would being the administration of justice into disrepute.

Seriousness of the Conduct [ 77 ] We must consider whether the conduct is such that the court is required to denounce the behavior by separating itself from the conduct? To conduct this alternative analysis I will assume that the Court had concluded there was a breach of the objective element of the test for arrest without warrant. It would have been what I would call a “near miss” on the objective standard. It would have

narrowly favoured exclusion but based on the case law, I conclude it would not have been a situation which would have called for strong denunciation or deterrence. The greater the level of state misconduct, the greater will be the need for the Court to dissociate themselves from the conduct. Wilful Charter violations will tend to support exclusion. In this case the Officer would have objectively believed he had the basis to proceed. This would have been on the basis of his view of a very strong past performing informant. This would distinguish him for instance from the Officer in the case of R. v.

Harrison , [2009] SCC 34. The Officer would have had a belief in their source and to some extent they might have become complacent because of the strong past reliability of the source. Impact on Charter Protected Interests of the Accused [ 78 ] It would be an unusual case where this factor would not favour exclusion. On the basis of the case law as laid out in the briefs of the parties, this would have favoured exclusion due to the impact on the Defendant.

Society’s Interest in an Adjudication on the Merits [ 79 ] By the same token this factor would be generally expected to favour inclusion and a review of the case law would bear that out. The narcotics are non-bodily substance physical evidence and are reliable evidence. Moreover the seized items include inherently illegal prohibited drugs which would contrast to items which in some cases would be the subject of the attempted exclusion, for instance a cell phone or something else which would not inherently be illegal in and of itself.

It is clear that in this case the non-bodily physical evidence includes cocaine. [ 80 ] For a

summary of the view of the Nova Scotia courts on the issue of the impact of hard drugs like cocaine on our communities one could refer to Justice Bryson’s comments in Nova Scotia Director of Public Safety v. Dickson , 2012 NSCA 2 . This case includes a very comprehensive discussion of the insidious erosion of neighbourhoods and communities flowing from criminal activity based in serious hard drugs. [ 81 ] As was pointed in R. v. Harrison, supra : A balancing exercise mandated by s.24(2) is a qualitative one. Not capable of mathematical precision.

It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance to determine whether having regard to all the circumstances admission of the evidence would bring the administration of justice into disrepute. Disassociation of the justice system for police conduct does not always trump the truth seeking interest of the criminal justice system. Nor is the converse true.

In all cases it is the long term repute of the administration of justice that must be assessed. [ 82 ] I am satisfied, had we reached the stage of a s. 24(2) analysis in this case, that in all the circumstances a reasonable observer would not have concluded that the exclusion of evidence was required. I believe that under the 24(2) Charter analysis the evidence would none the less have been admitted on the balancing factors. Cell Phone [ 83 ] I have not yet touched on the issue of the cell phone search. I appreciate this is a smaller issue within the whole context of the case.

The manner in which the cell phone was searched is problematic. On December 11, 2014 the Supreme Court of Canada released the decision in R. v. Fearon, 2014 SCC 77 . which provided clear direction with respect to the search of cell phones incident to arrest. I can outline Justice Cromwell’s direction. He said: Police Officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s.8 where: 1. The arrest was lawful; 2.

The search is truly incidental to the arrest and that the police have a reason based on a valid law enforcement purpose to conduct the search and that reason is objectively reasonable. The valid law enforcement purposes in this context are: a. Protecting the police, the accused or the public; b. Preserving evidence; c. Discovering evidence including locating additional suspects in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to the arrest. 3.

The nature and extent of the search are tailored to the purpose of the search; 4. The police take detailed notes of what they have examined on the device and how it was searched. [ 84 ] With respect to the points laid out by Justice Cromwell as applied to the present case - I do not believe there is an evidentiary basis to say that the search here was for the purpose of protecting the police, the accused or the public. It did not appear necessary for the purposes of preserving evidence.

Although I believe the Officers indicated that it was for the purpose of discovering evidence, there is not sufficient evidence to say that it was a situation in which the investigation would have been stymied or significantly hampered because of the inability to promptly search. There is no evidence of that. There was some

effort by the police to document what they were doing by way of screen shots that are really unreadable. The attempt to document the search may be the only place where Justice Cromwell’s direction was considered. [ 85 ] The evidence of how the search took place is troublesome as well, the Officer could not remember if the phone was password protected or how their entry into it came about. I think this, again, is troublesome and touches upon the points that the Fearon cases stands for. [ 86 ] Accordingly, the search of the cell phone was improper.

On a s.24(2) analysis, I find the product of the search ought to be excluded pursuant to s.24(2). I will not repeat here the elements of the R. v. Grant test examined above. Suffice it to say that the manner of the search and the disregard for the direction in R. v. Fearon are significant factors. Clearly the phone should have been left and a proper search warrant process should have been allowed to unfold before it was searched. [ 87 ] I appreciate that the issue surrounding the cell phone was perhaps a “side issue” to the central questions of the arrest and search.

Summary [ 88 ] I have concluded that the Officer did have reasonable and probable grounds, in all the circumstances, to make an arrest. The search incident to arrest was lawful. On a s.24(2) analysis, conducted in the alternative, the evidence located on the accused’s person would have been admissible in any event. [ 89 ] I genuinely want to thank both of you. Your written material and oral submissions were very helpful. Thank you both for the way you conducted the Voir Dire. Justice Jeffrey R. Hunt 10-20-16-ar