IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Bishop, |
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2018 BCSC 42 |
Date: 20180112
Docket: 166485-2
Registry: Victoria
Regina
v.
Michael David Bishop
Before: The Honourable Mr. Justice Punnett
Reasons for Judgment
on Garofoli Application
Voir Dire #1
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Counsel for the Crown: |
T.J. Corsi |
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Counsel for the Defendant: |
J.M.P. Firestone |
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Place and Date of Hearing: |
Victoria, Sept. 5-6, 2017 |
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Place and Date of Judgment: |
Victoria, B.C. January 12, 2018 |
Introduction
[1] The accused, Mr. Bishop, is charged with one count of possession of cocaine for the purpose of trafficking in the District of Saanich. He challenged the admissibility of the results of a search of his residence carried out pursuant to a search warrant by the Victoria Police Department. He applied for an order that a voir dire be declared per R. v. Vukelich, [1996] B.C.J. No. 1535 (C.A.), and that leave be granted to cross-examine the affiant for the search warrant per R. v. Garofoli, [1990] 2 S.C.R. 1421 and R. v. Araujo, 2000 SCC 65. He also sought to adduce additional evidence alleged to demonstrate factual inaccuracies in the Information to Obtain and to demonstrate the failure of the affiant to provide full and frank disclosure. The latter argument related to the assertion that the accused was a mobile hairdresser who carried his tools in a shoulder bag and travelled to his appointments on his scooter, that this was known to the police, and that their failure to disclose this was a failure to make full and frank disclosure.
[2] Leave to cross-examine the affiant was granted as the applicant showed a “reasonable likelihood” that cross–examination would assist the court in determining a material issue that would tend to discredit a pre-condition of the issuance of the warrant. The Crown did not assert that the accused lacked standing or that the Vukelich threshold was not met: see R. v. Russell, 2012 BCSC 652 at paras. 36-37. As a result a Garofoli hearing was held addressing whether s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, was breached and if so whether the evidence should be excluded pursuant to s. 24(2).
[3] The defence called six civilian witnesses as well as cross-examining Cst. Moore, the ITO affiant.
[4] The Victoria Police allege the accused was involved in a dial-a-dope drug operation and specifically that he delivered cocaine to various individuals on his electric bike/scooter and carried the drugs in a shoulder bag while doing so.
[5] The police began an investigation into the activities of Mr. Bishop in August 2015 when they received a Crime Stoppers tip and information from a confidential informant, referred to in the ITO as “Source A”. The disclosed portion of the Crime Stoppers tip was simply that the accused rides a scooter to deliver drugs to his customers.
[6] The information provided by the informant was significantly redacted. The confidential informant provided information to similar effect, that is, that the accused was conducting a dial-a-dope style drug trafficking operation while using a scooter to deliver cocaine to his customers. The disclosed portion of the information from the confidential informant at paragraphs 18, 22, 23 and 27 of the ITO was:
a. Mike Bishop sells cocaine in powder form;
b. Mike Bishop is very busy and sells a lot of cocaine;
c. Mike Bishop lives in a condo off Cloverdale Road;
d. Mike picks up cocaine in large amounts;
e. Mike is short in stature and half Caucasian and half Afro-Canadian and rides a scooter;
f. Mike Bishop picked up cocaine;
g. Mike starts dealing drugs in the afternoon;
h. Mike has a phone number specifically for conducting drug deals;
i. Mike’s customers do not look like typical drug users; and
j. As of August 2015, “Mike still sells cocaine”.
[7] As a result surveillance of Mr. Bishop was carried out over the course of three days. The police believed that during that period they observed approximately five interactions consistent with drug trafficking to which I now turn.
[8] The ITO stated:
Corroboration of Source "A”
19. On August 20, 2015, I reviewed the tenancy list for 3501 Savannah Avenue which confirmed that BISHOP is the only tenant of apartment 114-3501 Savannah Avenue.
20. On August 18th, August 19th and August 20th of 2015, Victoria Police Strike Force members observed a black scooter parked in the underground parking lot of 3501 Savannah Avenue. Later in surveillance, BISHOP was observed operating the same scooter out of the parking lot to his condo building and conducting several suspected drug transactions. These occurrences will be explained in greater detail in the surveillance portion of this affidavit.
21. BISHOP has been observed in surveillance operating his scooter throughout the City of Victoria. BISHOP appears very short in person and has a general appearance of an Afro-Canadian male. BISHOP is listed on PRIME as a black male, standing 5 feet 4 inches tall and 130 pounds.
…
24. During surveillance on August 18th, August 19th and August 20th, Victoria Police Strike Force members observed BISHOP driving out of the parking lot of 3501 Savannah Avenue. On August 19, 2015, I observed BISHOP entering a fire door exit into the apartment building at 3501 Savannah Avenue with a male who was waiting for him to arrive home. The type of door BISHOP was seen entering would have been locked to anyone who does not have keys to the building.
25. During surveillance on August 18th, August 19th and August 20th, BISHOP was seen leaving his residence at 11:19am, 12:10pm and 11:53am respectively. Corroborating Source “A”s information that BISHOP does not start dealing until noon or 1 pm.
26. On August 19, 2015 at 1602 hours, I observed BISHOP park his scooter in the underground parking lot. As BISHOP was parking his scooter he was talking to a male who was sitting on a nearby retaining [wall] before BISHOP arrived. I observed the male later identified as Jerry KADOSKI waiting for BISHOP as he arrived. KADOSKI and BISHOP then entered the fire doors together. After a period of 45 minutes KADOSKI was seen exiting the building and walking back to his vehicle. KADOSKI has a criminal record for Robbery and Possession for the Purpose of Trafficking.
[9] The defence called Mr. Kadoski. Mr. Kadoski testified that he is a painter and has been friends with the accused and his family for over twenty years. Before August 2015 he would see the accused when he had time and they would go fishing and play video games together. He had an electric bike as well. He stated that no licence or insurance was required to use such a bike on public roads. He said that the accused cut his hair every three weeks usually in the accused’s apartment. He believed that on August 19, 2015 he was at the accused’s apartment for a hair cut. He denied buying cocaine from the accused on that or any other day.
Police investigation - Surveillance:
August 18, 2015
32. On August 18, 2015, the Victoria Police Strike Force Section began surveillance on BISHOP at his residence at 3501 Savannah Avenue. I located a black scooter parked in the open underground parking lot of the apartment building. I knew this to be his scooter as I have observed BISHOP on this scooter numerous times while investigating un-related files.
33. I believe that BISHOP drives a scooter while conducting drug deals because it is inconspicuous and assists in avoiding police detection. I have had experience in past drug investigations where the drug trafficker has made deliveries while using a scooter. A benefit of driving a scooter is that the dealer is wearing a helmet and therefore their identity is somewhat concealed from onlookers. Another advantage of driving a scooter while conducting drug transactions is that a scooter is able to take small laneways and trails that vehicles are not able to drive, thereby avoiding the attention of both police and citizens. In this file, BISHOP has been seen numerous times using bike lanes and paths to avoid traffic lights and traffic congestion. Of note, BISHOP is seen carrying a black shoulder bag while he is operating his scooter. In my experience, drug traffickers often carry their drugs in some type of bag as concealment. I believe that BISHOP is using the black shoulder bag to carry his drugs in.
34. At 1119 hours, BISHOP was observed driving his scooter out of the parking lot and driving to 3235 Shelbourne Street. BISHOP was observed going into the residence at 3235 Shelbourne Street for a period of 2 minutes before he was seen coming out and leaving the area on his scooter. [Emphasis added.]
a. In my experience during previous drug investigations a quick stop and go at [sic] while meeting with someone is very common during a drug deal. The drug dealer and his customers are not necessarily friends or have anything in common and therefore there is no reason to prolong the exchange with conversation. The meeting is simply a business exchange where the trafficker provides drugs and the customer provides money in return. This exchange can be done very quickly. Due to the extremely quick nature of this stop, it is my belief that this was a drug deal.
35. After leaving 3235 Shelbourne Street BISHOP was seen driving to Hillside Mall where he went into the Food Court. Surveillance members were not able to locate BISHOP in the Food Court quick enough to see if BISHOP was conducting a drug deal. This observation becomes important, as BISHOP is later seen coming to the Hillside Mall Food Court several more times during surveillance throughout the investigation. During one such instance, BISHOP was seen conducting a hand to hand drug transaction inside the Food Court.
[10] The defence called the two residents of 3235 Shelbourne Street, namely Ms. Kelsey Rounds and Ms. Stephanie Stinchcombe.
[11] Ms. Rounds testified that she regarded the accused as a friend of some seven or eight years. They would “hang out” together, talk, and walk their dogs and the like. She said that he used an electric bike or scooter and usually was carrying a black bag in which he kept his hairdressing equipment. She stated that Ms. Stinchcombe moved in with her two to three years after she took up residence there and she introduced Ms. Stinchcombe to the accused and they too became friends. She said he would regularly come to her residence. She denied that she ever bought cocaine from him and never saw him sell it to Ms. Stinchcombe.
[12] She said her residence was a standard house. It had a basement and two driveways, one to the garage and the other to the back yard. She said that it had a front and back entry but she did not recall which door the accused used in August of 2015. She knew that he had physiotherapy treatments near her home and that he would drop in at those times.
[13] She said she did not use drugs and did not know the accused sold drugs nor did she know that he had a drug problem. She also stated that as she works full-time from 8:00 a.m. to 4:30 p.m. each weekday and has a second job in the evenings, she would not have been home on August 18, 2015, nor on August 26, 2015, which was the date police observed Mr. Bishop returning to the Shelbourne address and staying for nine minutes.
[14] Ms. Stinchcombe testified she was Ms. Rounds’ roommate and met the accused through her. She said she had known the accused for four to five years and described him as a friend. She stated he had a hair dressing business and that he cut her hair at his mother’s house. She was not working in August of 2015 although she is now employed. She denied ever buying cocaine from Mr. Bishop or that anyone in the house had bought cocaine from him. She said that he would visit her separately from visiting Ms. Rounds. She confirmed his scooter was what he used to get around. She denied he sold cocaine on August 18 or 26, 2015 but she could not recall if she was present at the house when he came by or not.
[15] The alleged second drug transaction on August 18, 2015 is described as follows:
36. At 1517 hours, BISHOP was seen leaving his residence at 3501 Savannah Avenue and driving to Topaz Park. At 1522 hours, BISHOP was seen meeting up with an unknown male in a white Toyota Tacoma. The entire conversation lasted less than two minutes before BISHOP and the unknown male separated ways. The Toyota Tacoma was a leased vehicle and therefore identity of the driver could not be ascertained. However, due to the quickness of the meeting and the remote location of the meeting it is my belief that this was a drug transaction. [Emphasis added.]
[16] The driver of the above vehicle was in fact not difficult to ascertain. The vehicle had on its side a 24-inch circular logo that stated: “4 Seasons Fire Prevention Services”, the business name of Mr. Rob Sonier. Mr. Sonier testified that the truck is registered to his company. As a result Cst. Moore’s assertion that the driver could not be identified is incorrect.
[17] Mr. Sonier testified that he met Mr. Bishop in 2005 at a party and that they became friends. He confirmed that Mr. Bishop was a hairstylist and had cut his hair at Mr. Bishop’s apartment. He denied that the August 2015 meeting was for the sale of cocaine. He recalled that meeting as they would often meet for coffee. When he phoned the accused Mr. Bishop told him he was not at home and to meet at the park which they did. He thought they had met and talked for longer than two minutes. He believed they got out of their vehicles and shook hands but was not sure, saying that normally they would.
[18] He testified that he did not know Mr. Bishop sold drugs nor that Mr. Bishop had a drug addiction.
[19] The ITO continued, setting out observations made on August 19, 2015:
August 19, 2015
37. On August 19, 2015 at 1210 hours, BISHOP was seen leaving his residence at 3501 Savannah Avenue on his scooter. BISHOP was then seen making several stops around the city that are not suspected to be drug related. At 1326 hours, BISHOP was seen going into the Hillside Mall Food Court. BISHOP was then seen texting and talking on his cell phone and looking around as if he is waiting for someone. BISHOP is lost by surveillance for a period of approximately 10 minutes before he was seen exiting the Food Court and getting back on to his scooter and driving back home.
a. As mentioned previously, BISHOP was seen going to the Hillside Mall Food Court a number of times during surveillance. Even though a drug transaction was not observed during this instance I still believe that his actions were consistent with drug trafficking. BISHOP was seen sitting down by himself while using his cell phone and looking around as if he was expecting someone to meet him there. I believe that there is a strong possibility that while I lost visual continuity of BISHOP he may have conducted a drug transaction.
b. This belief is drawn from my experience during drug investigations, while watching an area with a high propensity for drug trafficking from an observation post. During which time I have had an opportunity to observe a drug transaction moments before the deal occurs. This belief was substantiated during the following day’s surveillance when BISHOP was observed completing a hand to hand transaction inside the Food Court.
38. At 1545 hours, BISHOP was seen leaving his residence on his scooter and driving directly to the Hillside Mall Food Court. BISHOP was inside the Food Court less than one minute before he is seen coming back out to his scooter. Due to the quick turnaround, surveillance members were not able observe BISHOP’s activity inside the Food Court. After exiting the Food Court BISHOP drives directly back to his residence.
a. I believe this to have been a possible drug transaction as BISHOP was seen leaving his residence and driving directly to the Food Court where he did not purchase any items, including food, at which time he drives directly back to his residence. It should be noted that BISHOP lives less than half of a kilometre from a Thrifty’s Food Grocery Store making this behavior very unusual.
39. At 1602 hours, BISHOP arrived back at his residence. While BISHOP is locking his scooter in the underground parking lot an unknown male in a green t-shirt is seen talking to him. The unknown male and BISHOP are then seen walking into BISHOP’s apartment building through the closest set of fire doors to BISHOP’s apartment door #114. At 1647 hours, the male in the green t-shirt was seen exiting BISHOP’s apartment building and getting into a red Ford F-150 bearing British Columbia Licence Plate 0917GW, registered to a Jerry KADOSKI. A query of KADOSKI showed that he has a criminal record for Robbery and Possession for the Purposes of Trafficking in Cocaine.
[20] As noted above, Mr. Kadoski denied buying cocaine from the accused on this date, or ever. The alleged third drug transaction is described in the ITO as follows:
August 20, 2015
40. On August 20, 2015 at 1153 hours, BISHOP was observed leaving his residence at 3501 Savannah Avenue on his scooter. After leaving his residence he drove to the 500 block of Fisgard Street where he was seen parking his scooter at 1206 hours. BISHOP was seen getting off of his scooter and immediately walking over to a red Ford F-150 bearing British Columbia Licence plate JA4967, registered to a Verna ELLSWORTH. The driver of the Ford was described as a male between the ages of 25-35 years old. The registered owner of the Ford is a female with no criminal record; however, she is heavily documented on the police database PRIME.
41. At 1207 hours, BISHOP was seen getting into the passenger side of the Ford F-150 where he engaged in a brief conversation with the driver. At 1209 hours, BISHOP was seen exiting the passenger side of the Ford and closing his shoulder bag. To this date, BISHOP has never been seen outside his residence without the same black shoulder bag. After getting out of the Ford F-150, BISHOP and the unknown male driver leave the area in separate directions.
a. It is my belief [through] my experience in drug investigations as well as purchasing drugs as a level 2 undercover operator that this observation is a very strong example of a drug transaction. I have purchased drugs as an undercover operator in 16 separate files. During those files the drug trafficker has usually relied on some form of receptacle to hold the drugs so they [are] disguised from onlookers. In this case, BISHOP walks across the street from his scooter with the bag and gets into the truck for 2 minutes and when he is observed getting out of the vehicle he is seen closing the bag. It is my belief that he used the bag to conceal the drugs that he was providing the driver of the truck as he did not want to carry the drugs in his hand while he crossed the street.
b. I estimate that I have arranged more than 50 drug deals as a level two undercover operator. Each time I would call or text someone who I know to be a drug dealer posing as someone else. During the conversation I would ask for an amount and type of drug, at which time the dealer normally chooses a time and location for the exchange to take place.
c. When the exchange does take place the dealer normally removes the drugs from a receptacle that they are keeping it in and hands the drugs to me while I simultaneously hand them money. The entire exchange happens very quickly.
d. After the exchange, the person who sold me drugs and I would immediately part ways as we [had] no other reason to be together other than to purchase/sell drugs. Another reason for the exchanges to be conducted quickly is due to the fact that there is a sense of vulnerability for both the buyer and seller while drugs are being exchanged. This vulnerability comes from the possibility of onlookers watching and reporting what they see, or police being in the area and making these observations themselves.
42. At 1257 hours, BISHOP was seen driving his scooter back to Hillside Mall where he is observed going into the CIBC bank and activating a new debit card. After leaving the bank at 1352 hours, BISHOP walked into the Food Court, where he is observed using his cell phone and looking around as if he is expecting someone.
[21] The defence called the driver of the red Ford F-150 truck, Mr. Peter G. Henry. Verna Ellsworth, the owner of the truck, is his mother. Mr. Henry testified that Mr. Bishop has been a friend and customer of his for 10 years. Mr. Henry is a fisherman, and stated that he sells fish to Mr. Bishop and his mother, and that this was a regular occurrence in 2015. Mr. Bishop also cut his hair approximately once a month then although less now as he wears it longer.
[22] Mr. Henry stated that Mr. Bishop kept his tools for hair cutting in his bag. He confirmed that he met with Mr. Bishop on Fisgard Street on August 20, 2015. He delivered some fish to Mr. Bishop, specifically some candied salmon. He said that Mr. Bishop did not pay him at the time but that was not uncommon. He denied ever purchasing cocaine from Mr. Bishop. He went to see Mr. Bishop later in order to get paid. I will refer further to that event when discussing what the police describe as “Drug Deal #5”.
[23] The fourth alleged drug transaction is said to have also occurred on August 20, 2015, and is described as follows:
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43. At 1358 hours, an unknown male with a beard and wearing a black hat approaches BISHOP in the centre of the Food Court. BISHOP and the unknown male quickly and discretely make an exchange in a hand to hand manner. After the exchange is completed, BISHOP is seen exiting the Food Court and leaving the area. The unknown male that conducted the hand to hand exchange with BISHOP was identified as Dion MEDEIROS. MEDEIROS does not have any convictions for drug related offences; however, he is well documented on the police database PRIME for drug related files.
a. On August 20, 2015, I spoke with Sergeant Philip in regards to the aforementioned observation in the Food Court. Sgt. Philip is a qualified level 1 undercover operator and has purchased drugs numerous times as an undercover operator. Sgt. Philip advised me that it was his belief that the exchange between BISHOP and MEDIEROS in the Food Court was a drug deal.
[24] The defence called Mr. Dion Medeiros. Mr. Medeiros is a carpenter although currently on disability. He has known the accused for 15 years. They met when they both lived in the same apartment building. He confirmed Mr. Bishop is a hairdresser and that Mr. Bishop has cut his children’s hair at Mr. Bishop’s apartment. He confirmed they were friends. In August 2015 he said that while buying food he ran into Mr. Bishop at the Hillside Mall Food Court and they greeted each other with a “fist bump”.
[25] Mr. Medeiros testified that when he left the shopping centre on foot he crossed the street and police, who were not in uniform and were in an unmarked car, stopped him. They asked him questions and then searched him checking his socks, pockets and patting him down as if they were searching for drugs. No drugs were found. There is no evidence that Mr. Medeiros had time to dispose of any drugs between meeting Mr. Bishop at the mall and when he was stopped.
[26] He denied that he ever bought cocaine from Mr. Bishop and stated that he did not know Mr. Bishop sold cocaine. He denied that he had ever seen Mr. Bishop intoxicated by cocaine adding that if he were he “would have known for sure”.
[27] Turning to the fifth alleged drug deal, also said to have occurred on August 20, 2015:
44. At 1403 hours, BISHOP drives directly to 1548 Burton Avenue where he is seen going into the residence. BISHOP returns to his scooter from inside the residence one minute later wearing the same shoulder bag. A query of that residence shows that the owner is currently awaiting disposition for Assault, Resisting Arrest and Breach of Recognizance.
a. This is another example of a dial-a-dope drug trafficking technique. Drug traffickers will always want to conduct the hand to hand exchange in private if possible. In some cases they use a vehicle to do this. If they know the person they are selling to well enough and feel comfortable in doing so, the trafficker will go into the customers residence or allow the customer into their residence to conduct the deal. In this case, BISHOP was observed exiting 1548 Burton Avenue with his shoulder bag a minute after going inside.
[28] The ITO then sets out subsequent observations made on August 25th and 26th:
August 25, 2015
45. On August 25, 2015 at 1116 hours, Strike Force members observed BISHOP leave his residence at 3501 Savannah Avenue on his scooter. BISHOP was seen driving westbound on Cloverdale Avenue before getting onto the Galloping Goose trail. Continuity of BISHOP was lost briefly before he was located at the KGeez Cycle Shop located at 352 Burnside Road East. BISHOP was not seen leaving the Cycle Shop, the next time he was located was when he was seen leaving his residence on another scooter at 1314 hours.
a. At 1314 hours, BISHOP was seen leaving his residence on a different scooter as seen in previous day’s surveillance. BISHOP was observed as he drove westbound toward the Galloping Goose Trail again, however, visual continuity of BISHOP was lost again as it was believed that he got back onto the Galloping Goose Trail.
b. At 1546 hours, BISHOP was seen leaving his residence on a scooter travelling eastbound on Cloverdale Street. BISHOP was last seen as he turned left against a “no left turn" sign on Lang Street. BISHOP was not located again until 1620 hours when he was observed parking in front of the Food Court at Hillside Mall. BISHOP went into the Food Court where he was observed eating alone and then left the mall and drove directly back home.
c. BISHOP was not seen conducting any drugs deals on August 25, 2015. However, it is possible that he did conduct drug deals on that day as surveillance members were not able to maintain observations on BISHOP due to his erratic driving techniques and disregard for traffic laws. I believe that his behavior in respect to his driving was consistent with drug traffickers who use a dial-a-dope style operation. Drug traffickers often drive in an aggressive manner and disregard traffic laws as they are attempting to evade police surveillance.
August 26, 2015
46. On August 26, 2015 at 1352 hours, I observed an unknown male walk southbound on Savannah Avenue and into the underground parking area of 3501 Savannah Avenue. The unknown male was approximately 30 years old and of Aboriginal descent, wearing dark green pants and a dark green shirt along with knee high rubber boots. I first noticed the male because he walked in from the north in large rubber boots and I thought his foot wear was odd for someone who would be walking a long distance. The unknown male was last seen walking toward the area of the same fire doors BISHOP was seen entering in previous day’s surveillance.
a. Four minutes later, the same unknown male was seen coming from the same area of the underground parking lot. I continued to observe the male as he walked northbound on Savannah Avenue to see if he was walking to a nearby parked vehicle. I then observed the male get into a red Ford F-150 bearing British Columbia licence plate JA4967, which I immediately recognized from surveillance on August 20, 2015. As detailed in paragraph 41, BISHOP was seen getting into the same red Ford pickup on Fisgard Street in Victoria. BISHOP exited the vehicle two minutes later which I believe to be a clear example of a drug deal. Cst. Brewster made the observations on August 20th and described the driver as a male between the ages of 25 years to 35 years which is consistent with the male I observed on August 26, 2015, and inconsistent with the registered owner who is female.
b. At 1405 hours, the Ford F-150 JA4967, was stopped by a Saanich Police Officer after being followed by surveillance members from 3501 Savannah Avenue. The driver of the Ford was identified as Peter Gabriel HENRY who was found to be driving without a valid driver’s licence. HENRY has 61 entries on the police database PRIME, and a 2011 charge for Possession of Marihuana for which he was not convicted.
c. On August 26, 2015 at 1645 hours, I reviewed a photograph that I had taken from August 20, 2015. The photograph was taken of the Ford F-150 as it was turning off of Fisgard Street moments after BISHOP was seen exiting the vehicle. I noted that the driver of the Ford F-150 on August 20, 2015 was the same person that I had seen coming to and leaving from BISHOP’s residence on August 26, 2015. It is my belief that the driver of the Ford F-150 now identified as Peter HENRY came to BISHOP’s residence on August 26, 2015 at 1352 hours to buy drugs from BISHOP. This belief is strengthened by the 4 minute duration of HENRY’s visit to BISHOP’s residence; and because HENRY parked down [the] road from BISHOP’s residence instead of in the parking lot in order to avoid being noticed by people in the building and police.
47. On August 26, 2015 at 1452 hours, BISHOP was observed leaving his residence on his scooter. BISHOP was observed as he drove directly to 3235 Shelbourne Street in Saanich. This address was mentioned previously in this affidavit in paragraph 34, described as “drug deal #1”. On August 26, 2015, BISHOP was again observed driving into the driveway [at] 3235 Shelbourne Street where he stayed for a period of nine minutes before he was seen leaving on his scooter. BISHOP was again seen wearing his black shoulder bag as he drove to 3235 Shelbourne Street.
a. From my experience drug dealers like to reward regular customers by providing cheap prices and a quality product. Another way to reward a regular customer is the convenience of delivering the drugs requested to the customer’s residence. In this case, BISHOP was observed going to the same residence of 3235 Shelbourne Street on two occasions for a period of two minutes and nine minutes respectively. It is my belief that the residents at 3235 Shelbourne Street are regular customers of BISHOP, for whom he feels comfortable enough with that he can deliver drugs directly to their home.
Summary of Surveillance:
48. On August 18, 2015, at 1119 hours, BISHOP is observed driving directly to 3235 Shelbourne Street and walking inside for a period of two minutes before he was seen exiting the residence. BISHOP then went to Hillside Mall and entered the Food Court. Surveillance members did not arrive at the Food Court quick enough to observe a suspected drug transaction in this instance. However, BISHOP is seen going to the Hillside Mall Food Court four different times in three days of surveillance, and on one of those instances a very clear hand to hand exchange is observed.
a. On August 19, 2015 at 1545 hours, BISHOP is seen leaving his residence and driving directly to the Hillside Mall Food Court where he enters for 2 minutes before leaving without purchasing anything and driving directly back to his residence.
49. It is my belief that BISHOP is using the Hillside Mall Food Court as a place to deal drugs. The Food Court provides concealment in the sense that the area around the Food Court is flooded with people sitting down, walking through and standing while they wait to place orders; thus, providing a sense of anonymity for one or two people as they make a quick exchange. The Food Court has other advantages in the sense that it is difficult to conduct surveillance as there are a number of entrances and exits and it is a large room to control.
a. As mentioned previously, I am a qualified handler of several confidential informants and have been handling informants for the Victoria Police Department since 2010. In speaking with informants, I have been told that drug dealers look for certain areas to conduct drug transactions and will continue to use the same locations as they have successfully completed previous deals without detection. It is my belief that BISHOP uses the Hillside Mall Food Court to conduct drug transactions as he has grown comfortable with that area while conducting numerous previous drug deals without detection.
50. I believe that BISHOP is keeping drugs in his residence as he has been seen driving directly from his residence to complete numerous drug deals during surveillance.
a. On August 18th, BISHOP was observed driving from his residence where he drove to 3235 Shelbourne Street for 2 minutes before leaving the residence. As BISHOP was not seen stopping anywhere before arriving at the Shelbourne Street address and completed a suspected drug deal, it leads to my belief that he left his residence in possession with the amount of drugs ordered by his customer on Shelbourne Street. [Emphasis added.]
b. Later on August 18th at 1517 hours, BISHOP is again seen leaving his residence and meeting with a male in a Toyota Tacoma at Topaz Park, The entire meeting took approximately 1 minute before they separated and left the area. Again, BISHOP did not stop anywhere after leaving his residence and arriving at Topaz Park to complete a drug transaction.
c. On August 19, 2015 at 1545 hours, BISHOP is seen leaving his residence and driving directly to the Hillside Mall Food Court where he stays for only 2 minutes and then drives directly back to his residence. BISHOP did not purchase anything in the 2 minutes he was inside the mall.
d. On August 20, 2015 at 1153 hours, BISHOP is seen leaving his residence and driving directly to the 500 block of Fisgard Street where he is seen getting into a red Ford F-150 with his shoulder bag. BISHOP exits the truck 2 minutes later.
e. As mentioned previously, this observation is a very strong example of dial-a-dope drug trafficking. BISHOP likely received a call at which time an order for drugs was placed and a time and location was arranged. BISHOP then leaves his residence at a certain time in order to meet his customer at the pre-arranged time and location. A very brief engagement was observed, as it is likely that the sole purpose of the meeting was to exchange drugs [for] money. Then the customer and the dealer go their separate ways.
51. On August 20, 2015 at 1352 hours, BISHOP is again observed going into the Hillside Mall Food Court. During this instance, surveillance members were able to arrive in the Food Court before BISHOP and keep visual continuity of BISHOP the entire time. At 1358 hours, an unknown male (later identified as Dion MEDEIROS) enters the Food Court at which time BISHOP and MEDEIROS conduct a quick hand to hand exchange inside the Food Court which is observed by a surveillance member. After the exchange, BISHOP and MEDEIROS separate, and BISHOP leaves Hillside Mall. [Emphasis added.]
52. It is my belief that surveillance members observed BISHOP conducting 5 strong examples of drug trafficking using a dial-a-dope style drug trafficking operation. I also believe that surveillance members potentially missed BISHOP conducting drug deals inside the Hillside Mall Food Court as they were completed before members could arrive. These 5 observations of BISHOP conducting drug transaction were seen in 3 days of surveillance.
a. My belief is formed specifically through my last 4 years of policing where my investigations focused around low level to high level Controlled Drugs and Substances Act investigations. As a qualified undercover operator I have initiated numerous drugs [investigations] posing as a customer attempting to purchase small amounts of drugs, along with that I have purchased drugs on 16 separate drugs investigations and acted as the close cover officer on a number of others. During these experiences I have gained first-hand knowledge of how [drug] dealers act moments before, during and immediately after a drug deal which I believe informs my determination of what behaviors seen in surveillance are consistent with drug dealing.
[29] The accused submits:
a. the police brought a jaundiced and negative view of the actions of the accused and thereby characterized ordinary everyday actions as criminal;
b. the ITO unfairly failed to put forward evidence that the accused was in the business of a mobile hair stylist, that this was known to the affiant, and in not disclosing that the affiant did not provide full and frank disclosure; and
c. the ITO was redacted to the point that there was insufficient evidence to support the issuance of the warrant.
[30] The Crown submits that the criteria in R. v. Debot, [1989] 2 S.C.R. 1140 at 1168, are met:
a. there is detailed source information predicting the commission of a criminal offence that is compelling;
b. the information is from a source that was credible; and
c. the police corroborated the information provided before conducting the search.
[31] The Crown also submits that:
a. nothing should be excised from the ITO, although some amplification may be appropriate;
b. the evidence heard on the voir dire does not show that the impugned paragraphs in the ITO were erroneous or misleading; and
c. the evidence lead by the defence simply casts the ITO evidence in a different light or creates another possible interpretation.
[32] A search related to a Charter-protected privacy interest is reasonable and not a breach of s. 8 of the Charter if the police are authorized to conduct the search, the law itself authorizing the search is reasonable and the search is carried out in a reasonable manner: R. v. Collins [1987] 1 S.C.R. 265 at 278.
[33] Accordingly, police must establish reasonable and probable grounds before they can conduct a search. In R. v. Morelli, 2010 SCC 8, Fish J. stated for the majority:
[39] Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together from part of the “minimum standard consistent with s. 8 of the Charter for authorizing search and seizure” (p. 168).
[34] This standard consists of both a subjective and objective component. In R. v. Fan, 2012 BCSC 1669, Brown J. of this court explained:
[18] In addition, the reasonable grounds standard consists of both subjective and objective elements. The affiant police officer must both subjectively believe in the accuracy and credibility of the grounds of belief and objectively establish that those reasonable grounds in fact exist: R. v. Storrey, [1990] 1 S.C.R. 241 (S.C.C.), at 251. As recently stated by the Supreme Court of Canada, "reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information": Mugesera at para. 114.
[35] The function of a reviewing court was described by the Ontario Court of Appeal in R. v. Ebanks, 2009 ONCA 851 at para. 21, as follows:
[21] The sole function of the reviewing court is to assess the record that was before the issuing judge, as amplified on review, and determine whether the authorization could have issued. This review has nothing to do with whether the reviewing court would have issued the authorization, as a Garofoli application at trial must not become a hearing de novo: see Garofoli at p. 1452. Nor is the review to take on the markings of a trial, where the truth of allegations is explored. As noted by Charron J. in R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, at para. 30, "the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order". [Emphasis in original.]
[36] This role was also summarized by the Supreme Court in Morelli at paras. 40 and 41:
[40] In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to "amplification" evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.
[37] An authorization for a warrant is presumptively valid. The test when challenged is whether, on the basis of the record before the issuing justice, as amplified on review and excluding excised information, there was a sufficient basis upon which the justice could have issued the authorization or warrant: Garofoli at 1452; Araujo at para. 53. Therefore, if there is incorrect information, errors, or misstatements by the affiant I am to excise them and determine if it would still have been reasonable for the warrant to be issued. Likewise, any amplification of the record is to be taken into account.
[38] The onus is on the accused given this was a prior authorized search: see R. v. Nolet, 2010 SCC 24 at para. 21. The accused also bears the onus on the s. 24(2) analysis: R. v Harper, [1994] 3 S.C.R. 343 at 354.
[39] An affiant must make full, fair and frank disclosure of material facts: Araujo at paras. 46-47.
[40] The submission of the accused that the affiant approached the matter with a jaundiced and negative view and further that he did not provide full and frank disclosure is founded in part on the allegation that the affiant failed to account for and disclose that the accused worked as a mobile hair stylist. The submission is that the accused carried his hair stylist tools in his bag and used his electric scooter as his means of transport in carrying out that employment. In other words, that his travels on his scooter with his bag were perfectly innocent and that such information should have been before the issuing Judicial Justice of the Peace.
[41] The evidence of the defence witnesses called confirmed that the accused is a hair stylist. However, while the accused did cut and style the hair of a number of witnesses and their family members, there was no evidence that he travelled to them to do so. The evidence of the witnesses was that they had their hair cut and styled either at the accused’s home or that of his mother.
[42] In addition the affiant denied that he was aware the accused was running a mobile hair dressing service.
[43] As a result the evidence called to substantiate the mobile hair dressing business model did not do so. While one witness did indicate the accused’s hair cutting tools were in his bag, given the accused would cut hair at his home and his mother’s home, that fact does not lead to the finding that his business was a mobile hair cutting one.
[44] Insofar as the accused relies on such as evidence of a lack of full and frank disclosure I reject that submission. Therefore I do not find that the affiant deliberately failed to put in the ITO evidence known to him to be inconsistent with the working theory of the police that the accused was involved in a dial-a-dope operation at the time of issuance of the search warrant. On that point therefore it has not been shown that the affiant failed to make full and frank disclosure.
[45] I proceed therefore with the assessment of the validity of the search warrant on the basis that there was no overarching explanation inconsistent with the working theory of the police.
[46] With respect to the issue of whether the affiant had subjectively reasonable grounds and whether the grounds were objectively reasonable I must not substitute my decision for that of the issuing Justice. As noted above in Garofoli, my task is to determine whether the decision of the Justice to issue the warrant is one that could reasonably and judicially be reached.
[47] The accused submits that on the totality of the evidence there is no evidence of a crime being committed. He submits there must also be evidence of a crime being committed in his residence and there is nothing supporting that either. He relies on para. 39 of Morelli:
Under the Charter, before a search can be conducted, the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the "minimum standard consistent with s. 8 of the Charter for authorizing search and seizure" (p. 168.).
[48] He also argues that the ITO relies on a Crime Stoppers tip and the informant and that such evidence consists of conclusory statements that are speculative. In R. v. Silverstar Energy Inc., 2004 BCSC 1115, the court noted that “[a] conclusory statement is generally inadequate to support a finding of probable cause because it gives the authorizing justice no independent basis for making an assessment” and therefore “[t]he reviewing judge should strip the opinions and conclusions from the information to obtain a search warrant to determine the strength or weakness of the factual basis for issuing a search warrant” (para. 27, citations omitted).
[49] Therefore while the accused concedes the affiant had a subjective belief that there was evidence of a dial-a-dope operation, the accused submits that objective evidence is lacking to support the two pre-conditions required for issuance of a warrant.
[50] The accused argues that Cst. Moore has, in the ITO, “built something out of nothing”. He submits there is an absence of evidence-based probability to support the issuance of the ITO and that on the totality of the evidence there is no evidence of a crime. He further submits that there is an absence of reasonable and probable grounds and that the theory of the police does not reach the reasonable grounds threshold required for a warrant.
[51] The accused seeks to have paragraphs 26, 32, 33, 34, 36, 39, 40, 41, 43, 45, 46 and 47 of the ITO excised.
[52] As noted previously, the Crown submits that the observations made by the police are accurate and valid and that the evidence on the voir dire simply casts them in a different light or creates a different interpretation. The Crown submits that nothing needs to be excised and at best some amplification is appropriate.
[53] Paragraphs 26 and 39 of the ITO relate to Mr. Kadoski’s visit to the accused’s residence for approximately 45 minutes. There is nothing to indicate it was a drug transaction nor did Cst. Moore consider it such hence contrary to its inclusion in the ITO it did not corroborate the confidential informer’s information with respect to any involvement of the accused with drugs.
[54] Paragraph 34 of the ITO states that the accused “was observed going into the residence at 3235 Shelbourne Street for a period of 2 minutes before he was seen coming out and leaving the area on his scooter”. From this the affiant opines that a quick stop and go while meeting with someone is common for a drug deal and that he believes this was a drug deal. There are two problems with this paragraph. The first is that the affiant admitted in cross-examination that all that was seen was the accused driving down the side driveway of the house and then back out. He was not seen entering the house nor was he seen interacting with anyone. The assertion of the affiant that the accused was seen going into the house is therefore false. Secondly, because he was not seen meeting anyone there is no evidence that occurred. The affiant acknowledged he was in error.
[55] The Crown submits this paragraph can simply be amplified to correct the error. In my view, it cannot and is to be excised in its entirety. It is a specific example of a more general problem in the ITO of over reaching to give an impression of drug trafficking behaviour not sufficiently connected to evidence of trafficking. Subsequent references to this alleged visit to 3235 Shelbourne should also be excised, including those in paragraphs 47, 48 and 50 of the ITO.
[56] Paragraph 35 simply observes that the accused entered the Food Court at the Hillside Mall. In it the affiant asserts this was an important fact because the accused was later seen at the Food Court several times and in one instance was seen conducting a hand-to-hand drug transaction. That latter assertion relates to paragraphs 42 and 43. Paragraph 42 states the accused was observed using his cell phone in the Food Court and looking around as if expecting someone. Paragraph 43 relates that the officer observed the accused being approached by a male at which time the two “quickly and discretely [made] an exchange in a hand to hand manner.” This individual was identified as Mr. Medeiros.
[57] With respect to this alleged hand-to-hand drug transaction the actual source of the information is not stated and the undercover operator’s comment is only opinion. There is no evidence respecting details of the hand movements or what if anything was exchanged.
[58] This becomes significant in light of Mr. Mederios being stopped by two plain clothes officers immediately upon his leaving the mall, searched and found to have no drugs on him. The surveillance inside and outside and the apparent close relationship in time negates any assertion that Mr. Mederios had the opportunity to dispose of drugs nor had he a reason to do so. The affiant Cst. Moore testified that he had no knowledge of that event and that the officers were not part of his investigation. While I accept that, the timing of the search was unsettlingly coincidental.
[59] The issue then is whether such after-the-fact evidence should be taken into account. The paragraph alleges a drug deal occurred, however there is no evidence that Mr. Mederios disposed of such drugs and he was found not to have any drugs. Therefore, the evidence tends to show that the representations in the ITO are inaccurate. In my view the result is that paragraph 43 should in these circumstances be excised even where the affiant was unaware that no drugs were found. This leads as well to partial excision of paragraph 35, which references this alleged hand-to-hand drug transaction.
[60] In addition paragraph 37(b) references drug transactions at the Food Court and notes that the above alleged hand-to-hand drug transaction substantiated the officer’s belief. The latter portion of paragraph 37(b) is to be excised in light of the above excision respecting the alleged hand-to-hand drug transaction. Similarly, the portions of paragraphs 48 and 51 that refer to this transaction should be excised.
[61] As noted earlier I am to assess the reasonableness of the authorization of the search warrant on the basis of information available to the police at the time, and not on evidence that now casts the information in a different light. However, the information available to the police at the time of obtaining the warrant must be sufficient. In R. v. Liu, 2011 BCSC 1266, Romilly J. said this:
65. In R. v. Morris, [1998] N.S.J. No. 492, 134 C.C.C. (3d) 539 (N.S.C.A.) ("Morris"), Cromwell J.A. (as he then was), summarized for the Court the key elements that must be shown to establish "credibly based probability." He stated at para. 30:
(i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specified place: (R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Gen. Div.) at 365).
(ii) The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage." (Sanchez, supra, at 364)
(iii) The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v. Yorke (1992), 115 N.S.R. (2d) 426 (N.S.C.A.); aff'd [1993] 3 S.C.R. 647 (S.C.C.).
(iv) Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances. The relevant principles were stated by Sopinka, J. in R. v. Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.) at pp. 1456-1457:
(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an 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 this entails. 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.
[62] I turn now to the circumstances of the informant information. As noted previously, the accused submits that the information provided by the edited Crime Stoppers tip and confidential informant is conclusory and speculative. Conversely, the Crown submits that the information is detailed, timely and was provided by a reliable source.
[63] The Crime Stoppers tip insofar as it is divulged in the edited ITO is to the effect that the accused traffics in drugs using his scooter to deliver them. There is neither information respecting when that occurred nor the factual basis for the information nor whether the individual knew this first hand and how. On the other hand, this limited information was, the Crown asserts, corroborated by surveillance. While the riding of a scooter is corroborated, the drug trafficking allegation is arguably not.
[64] As noted, the information provided by the other confidential informant was that the accused sells a lot of cocaine in powder form, that he lived in a condo off Cloverdale Road, that he picks up cocaine in large amounts and that he is short, half Caucasian and half Afro-Canadian and that he rides a scooter. The informant also stated the accused dealt drugs in the afternoon, had a phone number specifically for drug deals, and had customers that did not look like typical drug users. The reliability of this information, the Crown says, was established from previous dealings with the informant. The information was provided in August of 2015.
[65] The Crime Stoppers and informant information do not conclusively establish the currency of the alleged criminal activity. The statement from the confidential informant that the accused was “still” trafficking drugs as of August 2015 does indicate this activity was continuing, however, the informant information is heavily redacted and fails to set out the factual basis and source of this conclusory information.
[66] In addition, the informant information does not indicate that there were drugs in the accused’s residence. It does not detail the source of the information, nor does it state that the informant had first-hand knowledge or if it was mere rumour. The purported corroboration of the informant existing in the redacted ITO is also significantly undermined by no observations of any hand-to-hand exchanges and the lack of repeated attendance at the Shelbourne residence. The remaining evidence of alleged drug trafficking is limited. As a result, the reliability of the informant information cannot be assessed and very little weight can be attached to it. While the Crown may have cured the deficiency by disclosing to the defence and the court some of the redacted information they declined to do so.
[67] The ITO in this instance raises a concern similar to that in R. v. Lahtinen, 2011 BCPC 490. There the trial judge stated:
[26] What must be remembered however, is that a “reasonable person, standing in the shoes of a police officer” does not mean a police officer who holds a jaundiced and overly negative view of the panoply of behaviours that humans engage in on a day to day basis. It cannot mean an officer whose observations of everyday actions are made through such a jaded lens that otherwise benign activity is precipitously characterized as criminal.
[68] In the case at bar the excised ITO reveals that no actual drug transactions were observed. No exchange of drugs or indeed any objects were observed.
[69] The ITO reveals a pattern of interpreting innocent activities as consistent with drug deals. For example:
a. the officer noted that the accused used a scooter to conduct drug deals because it is inconspicuous and assists in avoiding police detection stating that the accused was “seen numerous times using bike lanes and paths to avoid traffic lights and traffic congestion” inferring nefarious intent from what is normal bike riding behaviour;
b. the observation that the accused entered the home at Shelbourne Street when in fact that was not seen and he simply rode down the driveway and came back in two minutes. The false assertion indicates a mind set consistent with interpreting every event observed as a drug transaction;
c. the repeated reference to the transaction at the Food Court indicating a hand-to-hand drug transaction in support of the other observations in the ITO when as shown by the excised portion no drugs were found;
d. the observation that it was “very unusual” for the accused to attend the Hillside Mall Food Court when he lived half a kilometer from a Thrifty Foods Grocery Store. There is nothing at all unusual about this. A food court and a grocery store offer very different products and services;
e. the repeated statements that the Police observed the accused and did not see any drug transaction but believed he was conducting a drug transaction when out of their sight; and
f. the assertion that there were five “strong” examples of drug transactions when after excision there were only three incidents, and the excised hand-to-hand transaction and the repeat visits to the Shelbourne address could be said to be the “strongest” examples of drug trafficking.
[70] As in R. v. Cheng, 2013 BCSC 1979 at para. 70, “the ITO as amplified on review does not rise above providing a mere suspicion of drug activity at [Mr. Bishop’s residence], as opposed to reasonable grounds”.
[71] In Morelli, Fish J. said this:
[102] The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.
[72] However, the court must also recognize the special skill and training of police officers in assessing whether there were reasonable grounds. In R. v. Messina, 2013 BCCA 499, the Court of Appeal noted at para. 26 that the police do not have to rule out all other possible innocent explanations for what they observed.
[73] What we are left with are three incidents of brief contact between the accused and others, the accused’s reputation and criminal record of possession for the purposes of trafficking in 1998 and possession in 2008, his driving, the informant information and the Crime Stoppers information. The excision of the Shelbourne attendance and the Food Court “transaction” remove substantial underpinnings for the ITO and support for the remaining alleged drug transactions.
[74] In my view the ITO was, because of approach taken in viewing innocent events as evidence of drug trafficking, misleading, and an over-zealous attempt to persuade or influence the issuing Justice. Such an approach need not be intentional (Morelli at para. 59). Once the excised portions are removed the ITO presents a distorted basis, and insufficient evidence to permit the issuing Justice acting reasonably to issue the warrant. In saying this I acknowledge the issuing Justice did not have the benefit of the evidence before me and the detailed examination of that evidence on this voir dire nor did he have the benefit of the authorities and arguments of counsel.
[75] The remaining events in my view do not support a conclusion that there were reasonable grounds that criminal offences were taking place. There was no urgency that prevented the police from conducting further surveillance. They could well have continued their surveillance of the accused.
[76] As a result in the totality of the circumstances as excised the ITO does not raise a credibly based probability. The evidence was insufficient. Given the Crown has refused to release the blacked out portions of the ITO, the warrant is quashed and the search of the accused’s home was warrantless and a breach of s. 8 of the Charter. A warrantless search is prima facie unreasonable unless the Crown can demonstrate on a balance of probabilities that it was reasonable in the context of s. 8, which they did not do in this case.
[77] I turn next to whether the illegally obtained evidence should be excluded pursuant to s. 24(2) of the Charter.
[78] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32 and R. v. Harrison, 2009 SCC 34, revised the approach to a s. 24(2) Charter application to exclude evidence obtained by a Charter breach.
[79] The criteria follow.
[80] The Crown submits that the officer did not ignore the accused’s Charter rights nor act in ignorance of those rights. They further submit the breach was not high on the continuum of misconduct and that the officer acknowledged the inaccuracy of the Shelbourne residence events and that he did not act negligently or in bad faith. They note as well that the officer placed greater evidence before the issuing Justice but cannot reveal such to the defence.
[81] The defence argues that the officer “built something out of nothing” and that on the totality of the evidence there was a lack of probable grounds to justify issuance of the warrant. They further note the right to, and expectation of, privacy in one’s home.
[82] The evidence does not suggest that Cst. Moore intended to mislead the issuing Justice or that he acted in bad faith. There is no evidence of urgency. What is apparent is the ITO evidenced a pre-determined mindset that coloured the manner in which the evidence was presented and interpreted. While it may not have been intentional, the lack of objective presentation of the evidence was in my view serious and is the kind of approach that the court should dissociate itself from. Instead of an objective and full and frank disclosure of the evidence, overall it presented a misleading view. I therefore find that the first Grant factor weighs strongly in favour of exclusion of the evidence recovered in the search.
[83] It is trite law that the expectation of privacy in one’s home is high. The effect of the state’s non-compliance with the rights of the accused was therefore significant. In Morelli, Fish J. stated:
[104] I turn in that light to the second factor set out in Grant: The impact of the breach on the Charter-protected interests of the accused. The intrusiveness of the search is of particular importance in this regard. Our concern here is with the search of the appellant's home, in itself a serious breach of the appellant's rights under s. 8 of the Charter.
[84] Per Grant at paragraphs 79, 81, 83 and 84, this aspect of the s. 24(2) test requires consideration of the reliability of the evidence, its importance to the Crown’s case and the seriousness of the offence or offences.
[85] In this case the search resulted in the seizure of a digital scale that tested positive for cocaine, baggies of cocaine powder totalling 19.8 grams and a puncture seal containing 35 small baggies of cocaine powder, 31 small baggies of cocaine in all totalling 73 grams. In addition a Coffee-mate container with a false bottom was found containing baggies totalling 14.7 grams of cocaine. Two working cell phones were also found, along with cash. Such is clearly reliable evidence and without it the Crown will likely be unable to prove its case. This leaves the seriousness of the offence with which Mr. Bishop is charged. Again Grant provides instructions on this aspect of the analysis. The majority in Grant at para. 84 said this:
84. It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused" (para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
[86] While possession for the purposes of trafficking is a serious offence, to include the evidence in this case risks damage to the repute of the administration of justice that was warned against in Grant. The manner in which the evidence in support of the warrant was presented raises significant concerns respecting the basis upon which the warrant was obtained. The jaundiced view evidenced in the ITO has resulted in the ITO not disclosing a credibly based probability sufficient to justify the search of Mr. Bishop’s home. While the opinion of an experienced drug officer carries weight respecting the witnessed behaviour, it must relate sufficiently to drug-related activity, and must not imbue innocent behaviour with such a gloss.
[87] On all of the evidence the application of the Grant and Harrison analysis requires the exclusion of the evidence obtained by the warrantless search. That evidence is not admissible at trial.
“R.D. Punnett, J.”
The Honourable Mr. Justice Punnett