This week’s top three summaries: R v Ahmad, 2020 SCC 11, R v Neepin, 2020 MBCA 55, and R v Truong, 2020 ABQB 337.
R v Ahmad (SCC)
[May 29, 2020] Charter s.7 - Entrapment - 2020 SCC 11 [Majority Reasons by Karakatsanis, Brown and Martin JJ. with Abella and Kasirer JJ. concurring - Dissenting: Moldaver J. (Wagner C.J. and Côté and Rowe JJ. concurring)]
AUTHOR’S NOTE: By a margin of 1, the defence of entrapment remains on the books at the SCC. Fundamentally, the defence remains the same as in R v Mack, 1988 CanLII 24 (SCC). One point of welcome clarity from the Majority is that the prosecution has an onus to establish reasonable suspicion existed before the offer to commit crime was made. Since they hold all the information, the state should be required to prove this aspect of things. On a s.7 application, the overall onus normally rests with the Applicant. The bad news is that the SCC leaves a loophole the size of Mack truck that the police can employ in these investigations. Essentially, unless they suggest the sale of a "specific" drug they have not offered an opportunity. Inquiring about the general sale of controlled substances does not constitute offering an opportunity because it is not a specific offence (however, it sure provides police with reasonable suspicion to make a specific offer immediately afterwards).
The dissent is troublesome. An undercurrent appears to be that the "shocks the community" test for stays deals with a public that is uncaring and shocked by very little when it comes to police manufacturing crime for the purpose of arrest [at para 127 Justice Moldaver wrote "With respect to the contrary view, I struggle to see how the conduct of either undercover officer in the cases at bar could be viewed as intolerable — indeed, it seems to me the officers were doing precisely what society would expect them to do upon receiving information about an alleged dial‑a‑dope operation, i.e., investigate whether it is true."]
If this was a true, it would signal a sea change from 1988 when Justice Lamer wrote this on behalf of a unanimous court: "In the entrapment context, the court's sense of justice is offended by the spectacle of an accused's being convicted of an offence which is the work of the state (Amato, supra, at p. 447). The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court's disapproval of the state's conduct. The issuance of the stay obviously benefits the accused but the Court is primarily concerned with a larger issue: the maintenance of public confidence in the legal and judicial process. In this way, the benefit to the accused is really a derivative one. We should affirm the decision of Estey J. in Amato, supra, that the basis upon which entrapment is recognized lies in the need to preserve the purity of administration of justice."
The purity of the administration of justice demands a fine parsing of when the push to criminal activity comes from the state and when it comes from the accused. It may be fine line, but it is a very important one in a society that does not accept that the ends of criminal justice always justifies the means.
Overview
[1] As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. At the same time, police require various investigative techniques to enforce the criminal law. While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.
[2] For that reason, this Court in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, sanctioned, but narrowly confined, the power of police to step beyond their normal investigative role and tempt people into committing criminal offences. Where they do so without reasonable suspicion, or where they go further and induce the commission of a criminal offence, they commit entrapment. Without a requirement of reasonable suspicion, the police could target individuals at random, thereby invading people’s privacy, exposing them to temptation and generating crimes that would not otherwise have occurred. Such conduct threatens the rule of law, undermines society’s sense of decency, justice and fair play, and amounts to an abuse of the legal process of such significance that, where it is shown to have occurred, a stay of proceedings is required.
[4] We say our jurisprudence affirms that police cannot offer a person who answers a cell phone the opportunity to commit an offence without having formed reasonable suspicion that the person using that phone, or that phone number, is engaged in criminal activity. Whether the police are targeting a person, place or phone number, the legal standard for entrapment is a uniform one, requiring reasonable suspicion in all cases where police provide an opportunity to commit a criminal offence. Reasonable suspicion is a familiar legal standard that provides courts with the necessary objective basis on which to determine whether the police have justified their actions. A bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion.
[6] Applying Mack, we agree with both trial judges. Ahmad was not entrapped, but Williams was. We would therefore dismiss Ahmad’s appeal but allow Williams’ appeal.
A. Can a Phone Number Qualify as a “Place” Over Which Police May Form Reasonable Suspicion?
[35] The difficulty, of course, is that technology aids in the commission of crime. And in order to investigate and detect those crimes, police must also make use of technology. Further, while some virtual spaces may be too broad to support a sufficiently particularized reasonable suspicion, that concern does not arise where the space is a single phone number. As we will explain, reasonable suspicion can attach to a phone number, because it is precisely and narrowly defined.
[36] Of course, a phone number is not the same thing as a public physical location. A phone is a means of private communication between persons, and calling a number, or exchanging text messages, is an inherently private activity (unlike conversing on a busy downtown Vancouver street, as in Barnes, where we might expect chance encounters with the state). A phone number provides access to an intensely private virtual space. We cultivate personal, work and family relationships through our phones; they are a portal of immediate access reserved for the select few closest to us. We carefully guard access to that space by choosing to whom we disclose our phone number and with whom we converse. Similarly, this Court has held that a person reasonably expects privacy in most digital communications, precisely because conversations over text message, social media messaging, or email, are not analogous to a “public post” (R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 28 and 34‑36, per McLachlin C.J., and at paras. 106 and 116, per Moldaver J., dissenting)....
[37] It follows that state surveillance over virtual spaces is of an entirely different qualitative order than surveillance over a public space. Technology and remote communication significantly increase the number of people to whom police investigators can provide opportunities, thereby heightening the risk that innocent people will be targeted. Online anonymity allows police to increasingly fabricate identities and “pose” as others to a degree that would not be possible in a public space like the Granville Mall. And they can do so anytime and anywhere, since cell phones are a 24/7 gateway into a person’s private life. Individuals must be able to enjoy that privacy free from state intrusion, subject only to the police meeting an objective and reviewable standard allowing them to intrude (see Barnes, at p. 481, per McLachlin J., dissenting but not on this point).
[38] Section 8 jurisprudence recognizes that at the “heart of liberty in a modern state” is the need to “set a premium” on the ability of its citizens to carve out spaces in their lives, sanctuaries where they may interact freely, unhindered by the possibility of encounters with the state (R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 67; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at p. 53; see also R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 427-28; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 114, per Karakatsanis J., dissenting). In the words of McLachlin C.J. (writing extra-judicially), “The right ‘to be let alone’ and to define a protected sphere of individual autonomy within which neither one’s neighbours nor the state can intrude without permission, is an important aspect of fundamental human dignity” (Hon. B. McLachlin, “Courts, Transparency and Public Confidence — To the Better Administration of Justice” (2003), 8 Deakin L. Rev. 1, at p. 3, citing S. D. Warren and L. D. Brandeis, “The Right to Privacy” (1890), 4 Harv. L. Rev. 193, at p. 195). The human condition flourishes as the fear of state intrusion fades.
[39] ... As Lamer C.J. noted in Barnes, at pp. 462‑63, a reasonable suspicion can attach to a place only if it is defined with sufficient precision and “in many cases, the size of the area itself may indicate that the investigation is not bona fide.” Given that such an inquiry hinges on the presence of reasonable suspicion, the location must be “sufficiently particularized” (Chehil, at para. 30; see also S. Penney, “Standards of Suspicion” (2018), 65 Crim. L.Q. 23, at pp. 24 and 26).
[40]... We say, to properly protect these interests, police must have reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime.
[41] We emphasize that the virtual space in question must be defined with sufficient precision in order to ground reasonable suspicion. Reviewing courts must scrutinize the evidence that prompted the inquiry to ensure the police have narrowed their scope so that the purview of their inquiry is no broader than the evidence allows. To ensure that random virtue testing is avoided, factors such as (but not limited to) the following may be helpful: the seriousness of the crime in question; the time of day and the number of activities and persons who might be affected; whether racial profiling, stereotyping or reliance on vulnerabilities played a part in the selection of the location; the level of privacy expected in the area or space; the importance of the virtual space to freedom of expression; and the availability of other, less intrusive investigative techniques.
[42] As previously explained, an individual phone number is sufficiently precise and narrow to qualify as a place for the purposes of the first branch of the entrapment doctrine. We agree with Himel J.: “. . . phones are increasingly personal” and, in most cases, there will be “little real difference between information that the police obtain about the phone line and information that they obtain about the person who answers it” (C.A. reasons, at para. 109)... Ultimately, it is a person before the court as an accused. And the question will always be the same: are there objective factors supporting a reasonable suspicion of drug trafficking by the individual answering the cell phone when police provide the opportunity to commit such a crime? Those factors may relate in part to reasonable suspicion of the individual, or of the phone number itself, or to both.
[43] Finally, we note that lower courts have already found that police can conduct bona fide inquiries into virtual spaces other than phone numbers. We repeat, however, that the serious risk of random virtue testing in such inquiries requires that the virtual space be defined narrowly and with precision (Barnes, at p. 463). In our view, entire websites or social media platforms will rarely, if ever, be sufficiently particularized to support reasonable suspicion. To permit police to target wide virtual spaces is inconsistent with Mack and its threshold of reasonable suspicion, and disregards that legitimate communities exist as much online as they do in the physical world.
B. How Does Reasonable Suspicion Apply to Dial-a-Dope Investigations?
[46] While the reasonable suspicion standard requires only the possibility, rather than probability, of criminal activity (Chehil, at para. 27), it must also be remembered that it provides police officers with justification to engage in otherwise impermissible, intrusive conduct such as searches and detentions. It is therefore subject to “rigorous,” “independent” and “exacting” judicial scrutiny (Chehil, at paras. 3 and 26). The suspicion must be focused, precise, reasonable, and based in “objective facts that stand up to independent scrutiny” (MacKenzie, at para. 74)....Ultimately, the evidence said to satisfy reasonable suspicion must be carefully examined.
[47] Although innocent explanations and exculpatory information remain relevant to an assessment of reasonable suspicion, the police are not required to undertake further investigation to rule out those explanations (Chehil, at paras. 33-34). Nevertheless, the facts must indicate the possibility of criminal behaviour: characteristics that apply broadly to innocent people are not markers of criminal activity (Chehil, at para. 35). Mere hunches and intuition will not suffice (Barnes, at p. 460). However, an officer’s training or experience can make otherwise equivocal information probative of the presence of criminal activity (Chehil, at para. 47).
[48] Reasonable suspicion is also individualized, in the sense that it picks an individual target — whether a person, an intersection or a phone number — out of a group of persons or places. As noted above, the criminal law’s objections to “generalized suspicion” hinge on its embrace of “‘such a number of presumably innocent persons as to approach a subjectively administered, random basis’” (Chehil, at para. 30, quoting United States v. Gooding, 695 F.2d 78 (1982), at p. 83). When an objectively grounded suspicion instead attaches to a “sufficiently particularized constellation of factors” (Chehil, at para. 30), like those relating to an individual phone number, the objection falls away. In other words, the ill sought to be remedied by individualization is police intruding on the protected interests of all persons in broadly or poorly defined locations, especially on the basis of generalized evidence (Kang‑Brown, at para. 73, per Binnie J.)....
[50] Each of these appeals originated with a single tip of unknown reliability. Although a sole tip devoid of predictive information cannot meet the reasonable suspicion standard, such a tip can be sufficiently corroborated such that the standard is met (see Florida v. J. L., 529 U.S. 266 (2000), at pp. 270-71). Such corroboration must suggest that the “tip [is] reliable in its assertion of illegality, [and] not just in its tendency to identify a determinate person” (J. L., at p. 272).
[52] In short, there are various ways in which the police may seek to establish reasonable suspicion before the call is made (see, e.g., R. v. Pucci, 2018 ABCA 149, 359 C.C.C. (3d) 343, at para. 11; R. v. Clarke, 2018 ONCJ 263, at paras. 40 and 56-57 (CanLII)). In British Columbia, police officers are required to record on a “Swansheet” the steps they took to establish reasonable suspicion before making the call — which belies any suggestion that Mack is impractical to apply in a digital age, or that reasonable suspicion in the virtual world should represent a lower threshold than in the physical world (R. v. Li, 2019 BCCA 344, 381 C.C.C. (3d) 363, at paras. 3-4; B. A. MacFarlane, R. J. Frater and C. Michaelson, Drug Offences in Canada (4th ed. (loose-leaf)), vol. 2, at pp. 26-4 to 26-7). This practice was adopted after the Court of Appeal for British Columbia criticized the police for making hundreds of random phone calls on the basis of bare, uncorroborated tips in Swan, at para. 43.
[53] Of course, it is for the police to determine how to proceed with their investigations. But to be clear, reasonable suspicion cannot be grounded on a bald tip alone (Simpson, at p. 50; J. L., at pp. 270-71; see also R. v. Arriagada, [2008] O.J. No. 5791 (QL) (S.C.J.), at para. 25; Clarke, at para. 44). As this Court held in R. v. Debot,1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, when the police use a tip from a confidential or anonymous source to justify an intrusion on someone’s liberty, courts must scrutinize the tip.[1] It should be examined to see whether its detail is compelling, the informant is credible, and its information is corroborated in any way (Debot, at p. 1168).
[54] Although it would be prudent for police officers to investigate the reliability of the tip before placing the call where they are able to do so, it is also possible for the police to form reasonable suspicion in the course of a conversation with the target, but prior to presenting the opportunity to commit a crime (see, e.g., Townsend, at para. 50). While this is a necessary part of the “leeway” Mack requires (at p. 978), police must be aware that in placing the call without reasonable suspicion, they are walking on thin ice, having already intruded upon the private life of their interlocutor.
[55] That said, the target’s responsiveness to details in the tip, along with other factors, may tend to confirm the tip’s reliability. For example, the target’s use of or response to language particular to the drug subculture properly forms part of the constellation of factors supporting reasonable suspicion (see Olazo, at para. 26). Even so, the understanding of “coded” drug language by a target is not, on its own, necessarily a reliable ground for reasonable suspicion. Some phrases admit of innocent interpretation. And some people — especially vulnerable people — are simply familiar with the coded language of drug trafficking, a point made convincingly by Pringle J., writing in Clarke....
[56] Whether or not responding to such terminology is neutral or adds to the weight of other factors will depend on the circumstances. There is no requirement that the police rule out innocent explanations for these responses. But by the same token, the more general the language used, the more the need for specific evidence regarding police experience and training (Chehil, at para. 47). In particular, where a police officer testifies that a generic or everyday phrase is indicative of involvement in the drug trade, a trial judge must carefully consider whether this is a reasonable connection to make, based on rigorous scrutiny of all the evidence, including any other factors said to establish reasonable suspicion. Moreover, if the target seems confused by the officer’s use of such language, such exculpatory information must be taken into account as part of the “entirety of the circumstances” (Chehil, at para. 6). Courts must keep in mind that relevant factors are not to be parsed separately and assessed individually to determine whether they support reasonable suspicion. Rather, they are assessed together and in light of each other.
C. How Should Courts Review the Words Spoken During a Police Call to the Target?
[58] ... Instead, the Crown argues that the “totality of the exchange” between undercover operators and their targets should be examined in determining whether entrapment has been made out, including looking at the circumstances that follow the request to purchase the drugs.
[59] We disagree. Unless the police had formed reasonable suspicion before a phone call was made, reviewing the words spoken during the call is unavoidable. Reviewing conversations between undercover officers and their targets in the dial-a-dope context is the inevitable consequence of accepting that the police must have reasonable suspicion before offering an opportunity to commit an offence. While we agree that the conversation must be considered contextually, that is in order to determine whether the undercover officer made a specific request to purchase drugs, and whether reasonable suspicion existed before the opportunity to commit a crime was offered.
[60] Our point about timing is fundamental. Reasonable suspicion is not formed retroactively. Rather, it is applied prospectively. From its inception, the entrapment doctrine has required that police officers have reasonable suspicion of criminal activity before providing an opportunity to commit an offence. Reasonable suspicion — like any level of investigative justification — can justify an action only on the basis of information already known to police (see, e.g., Swan, at para. 27; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 64; Ormerod and Roberts, at p. 46, fn. 31). It follows that the decision to intrude into an individual’s private life and offer them the opportunity to commit a crime is justified only if the grounds predate the measure. This is no different than the rule that applies to every context in which this standard (or indeed any standard) is used to justify state actions that interfere with individuals’ protected interests. Police may not detain an individual for investigative purposes unless they already have reasonable suspicion the individual is connected to a particular crime (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 591, at para. 34). Nor may police undertake a safety search unless they already have reasonable grounds to believe that their safety or the safety of others is at risk (R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41). This Court has also been clear that reasonable suspicion must be assessed at the time of a sniff search and not after (Chehil, at para. 68).
D. What Constitutes Provision of an Opportunity to Traffic in Drugs?
[64] The inquiry, then, is properly directed to how close the police conduct is to the commission of an offence.... In the particular context of drug trafficking, we would adopt the conclusion reached by Trotter J. at para. 27 of the Williams stay decision: an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering “yes.”
[65] The definition of drug trafficking in the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), is broad. It includes not only selling, transporting and administering illegal drugs, but also making an offer to do so (CDSA, ss. 2(1), “traffic” and 5(1); R. v. Murdock (2003), 2003 CanLII 4306 (ON CA), 176 C.C.C. (3d) 232 (Ont. C.A.), at para. 14; MacFarlane, Frater and Michaelson, vol. 1, at pp. 5-18.1 to 5-21). The definition of “traffic” is limited to activity “in respect of a substance included in any of Schedules I to V.” A general agreement to sell “drugs” or “product” will not suffice unless there are contextual markers that narrow what is intended to a particular drug listed in those schedules.
[66] For these reasons, police can make exploratory requests of the target, including asking whether they sell drugs, without providing an opportunity to traffic in illegal drugs (see, e.g., R. v. Ralph (A.), 2014 ONCA 3, 313 O.A.C. 384, at para. 32). An opportunity has been provided only when the terms of the deal have narrowed to the point that the request is for a specific type of drug and, therefore, the target can commit an offence by simply agreeing to provide what the officer has requested. In some cases, a request to purchase a specific quantity of drugs will suffice. For example, in Williams’ case, where the police were working from a tip that the individual was a cocaine dealer, a request for a particular quantity of that drug (i.e., “I need 80”) constituted an opportunity (stay decision, at para. 9). Indeed, courts have consistently recognized that a request to purchase a specific type of drug during the conversation will amount to an opportunity to commit a crime (Ralph, at paras. 29 and 31-32; R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131, at paras. 3 and 15-16, aff’d 2010 SCC 50, [2010] 3 S.C.R. 62; Townsend, at paras. 42 and 47; R. v. Gould, 2016 ONSC 4069, at paras. 18 and 30 (CanLII)). Statements such as “I need 40,” “I need six greens,” “I want a 60 piece,” “four for a hundred,” “a ball,” and “half a B” have all been found to present opportunities (R. v. Marino‑Montero, [2012] O.J. No. 1287 (QL) (Sup. Ct.), at para. 15; R. v. Izzard, [2012] O.J. No. 2516 (QL) (Sup. Ct.), at para. 22; Williams(2010), at para. 19, see also para. 54; R. v. Gladue, 2012 ABCA 143, 285 C.C.C. (3d) 154, at paras. 4 and 11; R. v. Stubbs, 2012 ONSC 1882, at para. 12 (CanLII); Arriagada, at para. 26; Clarke, at para. 37).[2]
[68] It follows that, to ensure the fairness of state conduct, proceedings must be stayed in respect of charges that are related to the conduct targeted by abusive police conduct — that is, to the offence of trafficking by offer and to the in-person trafficking or possession for the purpose of trafficking offences to which the offer directly relates. Concluding otherwise would ignore the entrapment that occurs during the phone call and its direct relationship to the offences that were eventually charged....
[69] In conclusion, given the principles governing our entrapment doctrine, police investigating a dial-a-dope operation by calling a phone number they suspect is being used to traffic illegal drugs must form reasonable suspicion before offering an opportunity to traffic drugs. If they cannot form reasonable suspicion before making the call, they must in the course of their conversation form reasonable suspicion before making the offer. A determination of whether this requirement is satisfied must be the product of strict judicial scrutiny, taking into account the constellation of factors that indicate involvement in drug trafficking. And, if it is determined that the offer was presented before reasonable suspicion was formed, entrapment is established and the proceedings must be stayed.
Application
[72] In Ahmad’s case, D.C. Limsiaco received a tip that “Romeo” was selling drugs using a particular phone number. He called the number and engaged in the following conversation:
Male: Hello Officer: Hey, It’s Mike, Matt said I can give you a call, this is Romeo?
Male: He did, did he?
Officer: Yeah, said you can help me out? Male: What do you need?
Officer: 2 soft Male: Hold on, I’ll get back to you. Officer: Alright.
(Ahmad stay decision, at para. 21)
[73] ....Of course, asking whether Ahmad could “help [him] out,” as the officer did earlier, was not an opportunity to traffic. Responding “yes” to that question would not have been trafficking, because the inquiry had not been narrowed to a particular substance listed in a schedule of the CDSA.
[76] While this is an extremely close call, we are satisfied that Allen J. did not err in her conclusion that the police had a reasonable suspicion of drug trafficking before providing the opportunity to commit an offence. We acknowledge that the answer “What do you need?” to the question “[Y]ou can help me out?” can admit of innocent responses, but the reasonable suspicion standard did not require the police to direct the conversation to rule out innocent explanations for Ahmad’s positive response. Nor can the question and answer be assessed in isolation. It came after the officer’s references to both Romeo and the police’s concocted “drop name” Matt, and after Ahmad evinced no surprise and did not deny he was Romeo or ask who Matt was. Significantly, he betrayed no surprise that a stranger, on another person’s recommendation, would be reaching out to him for “help”; in fact, he did the opposite, continuing to engage the caller to ascertain what he wanted....But we share Allen J.’s conclusion that, taken together, they disclosed a reasonable possibility that this individual was involved in drug trafficking.
[77] In Williams’ case, police received a tip that “Jay” was selling drugs using a phone number. Police prepared a package relating the phone number and the name “Jay” to Williams, who had previously been arrested for drug trafficking. The package included information about Williams, including an address at which he had allegedly been trafficking drugs, a description of his physical appearance, a note that he was a “cocaine dealer” who worked in a certain area, and a home address.
[78] Having been provided the phone number, the name “Jay,” the nature of the drug, and a picture of Williams, D.C. Canepa called the number and had the following conversation:
Male: Hello. Canepa: Jay?
Male: Yeah.
Canepa: You around? Male: Who is this? Canepa: It’s Vinny. Male: Vinny who?
Canepa: Vinny. Jesse from Queen and Jarvis gave me your name . . . your number. Said you could help me out. I need 80.
Male: Okay. You have to come to me.
Canepa: Okay. Where?
Male: Queen and Dufferin.
Canepa: Okay. It’ll take me a few because I’m at Yonge & Bloor.
...
[79] As soon as the person who answered confirmed that he was Jay, D.C. Canepa provided an opportunity to traffic drugs when he presented Williams with the specific request to sell him “80,” slang for a dollar amount of cocaine. Once Williams responded, “Okay,” the offence of trafficking by offer was complete.
[80] Unlike in Ahmad’s case, there was nothing in Williams’ responses before D.C. Canepa provided the opportunity to traffic — to suggest that the phone number was being used to sell drugs. D.C. Canepa did not wait to see how Williams would respond to an investigative question that could have corroborated that Williams was engaged in criminal activity prior to providing the opportunity to commit the crime. This means Williams did not respond positively to slang particular to the drug subculture until after the opportunity had been provided. That one aspect of a tip has been corroborated — here, “Jay’s” name — does not allow that tip to ground a reasonable suspicion. The corroboration of the name does not strengthen the reliability of the tip “in its assertion of illegality” (J. L., at p. 272).
[81] The Crown relies on the police brief that identified “Jay” as Williams and included his home address, an address where he trafficked drugs, and his criminal record. However, there was no evidence of the basis upon which the officer preparing the brief made the connection between Williams and the name “Jay.” Trotter J. reasoned that he could not conclude that the name “Jay” was sufficiently linked to Williams, and therefore he could not rely on the information in that package as part of a constellation of factors supporting reasonable suspicion. Given the lack of evidence on the reliability of the source or the information provided, Trotter J. concluded that neither the officers nor he could determine the reliability or currency of the information.
[82] We agree. The court can consider all the objective factors known to members of the investigative team at the relevant time in determining whether the decision was made with reasonable suspicion. Obviously, police officers must be able to rely on the investigative work of other officers and it is not necessary for the particular officer making the call to personally have all the information that supports reasonable suspicion (see, e.g., Debot, at p. 1166). Police work often relies on multiple officers conducting individual parts of an investigation....
[83] However, the facts relied upon to ground reasonable suspicion must be put before the court for independent review. As we have emphasized, the primary purpose of the reasonable suspicion standard is to allow for meaningful judicial review of police conduct (see paras. 24 and 45-46, above). Requiring the police to disclose their reasons for targeting an accused does not alter the onus on the accused to prove entrapment; it merely recognizes that only the police can point to the circumstances known to them that give rise to reasonable suspicion. To free the police from the requirement of having to provide objectively reviewable evidence — in this case, evidence of the connection between “Jay” and Williams — would be to engage in the very same “good faith” reasoning that has been soundly rejected in the reasonable suspicion jurisprudence.
[84] In this case, police appear to have proceeded on the assumption that the tip — that Jay was trafficking in cocaine using the phone number provided — was about Williams. But there was no evidence to establish that the source connected Jay with Williams. Nor did the evidence establish any other basis upon which to conclude they were the same person. Indeed, the officer who had previously dealt with Williams said she had not known him to use the name “Jay.” While the report itself asserted a connection between the two, there was no evidence to show whether such a connection was warranted or reasonable. In the absence of such evidence, this Court cannot simply presume that a bald tip that Jay was using a particular phone number to traffic in cocaine was reliable and current. Confirmation that the speaker was Jay confirmed only that aspect of the tip — that Jay was using that phone. There was no confirmation that he was using the phone to sell cocaine until after the police officer provided him with the opportunity to do so. The only conclusion that can be safely drawn from the record as it stands is the one Trotter J. drew: the police had no more than a bare tip that someone using a particular phone number was selling drugs and this did not ground reasonable suspicion.
[85] For these reasons, we would dismiss Ahmad’s appeal and allow Williams’ appeal, setting aside the convictions entered by the Court of Appeal and reinstating the stay of proceedings entered by Trotter J.
R v Neepin (MBCA)
[May 21, 2020] Sentencing - Gladue Factors Reduce Moral Culpability - Sentencing Judges are Required to Conduct this Analysis - 2020 MBCA 55 [Reasons by Justice Barbara M. Hamilton with Justice Jennifer A. Pfuetzner and Justice Karen I. Simonsen concurring]
AUTHOR’S NOTE: Recognition of the cultural genocide undertaken by the Canadian state against Indigenous peoples in a criminal courtroom can often take one of two forms. The first is a categorical recognition of the existence of the factor with no discernible application to a sentence (sometimes with a reference to their being no "race-based discount" in criminal law). The second is a recognition of the factors and how they impacted the offender to mitigate their moral culpability. The first is not acceptable according the MBCA. Sentencing judges are required analyse how the offender's moral culpability was affected by Gladue factors impacting their community, family, and themselves. This should, invariably lead to a real reduction in sentence.
Facts of the Offence
[5] The accused met Mr. Bird in the afternoon of March 8, 2016, when he arrived at her home with Robert McDonald, a friend of hers, for a visit. The accused’s four-year-old son was at home with her. The three adults socialised, drank whiskey and ate a meal. The accused’s daughter and her boyfriend came home around 8:30 p.m. and went upstairs. The accused and Mr. McDonald left to buy another bottle of whisky and Mr. Bird stayed with the boy. After their return, they started drinking whiskey again. Mr. McDonald left the living room to go upstairs to use the bathroom. When he returned to the living room he saw the accused stabbing Mr. Bird.
[7] On the way to the cruiser car, the accused told the police officer that “he molested my son, he deserved to die”, “he was hurting my child” and “my baby’s getting hurt, and I’m supposed to protect him.”
[12] Mr. McDonald testified that, on his way upstairs to use the bathroom, he heard the accused say to her son, “Did he touch you?” and her son respond, “Yeah”. When he returned downstairs, he saw the accused stabbing Mr. Bird multiple times and saying, “you touched my baby”, to which Mr. Bird responded, “No” and “I didn’t touch your baby.” After the stabbing stopped, he heard the boy say to the accused, “I was just kidding, mommy”, and the accused then say, “Oh, mommy’s going to be gone for a while.”
[14] The accused testified that while she was cleaning up in the kitchen, she heard Mr. McDonald yell, “Hey bro, what are you doing?” She looked into the living room and saw Mr. Bird and her son on the couch. Mr. Bird’s hand was under a blanket near her son’s private area and “it was moving up and down really fast.” She described her son as “frozen in shock.” She testified that she went to the kitchen to get a knife and when she returned she asked her son, “Did he touch you?” and “[he] said ‘yes’”. She then stated, “I remember my arm going up and then I blacked out.”
[19] The trial judge’s instructions to the jury provided three routes to the verdict of manslaughter:
1. Intoxication;
2. Provocation; and
3. the cumulative effect of intoxication and provocation (the rolled-up instruction).
[34] The accused was born in Thompson, Manitoba in 1978. She has Treaty status through the Fox Lake Cree Nation. Some family members attended residential school. She was not taught about her culture as a child but has “developed a strong connection to her culture while in custody.”
[35] The accused was exposed to violence, including sexual abuse and substance abuse. Her history is one of alcohol abuse. She lost her brother to suicide. At three years of age she was apprehended by Child and Family Services and returned to her mother’s care six months later. She went to live with her stepfather at the age of fifteen in Fox Lake Cree Nation and had little contact with her mother, who died in 2011. As stated in the PSR:
. . . The [accused’s] upbringing was filled with dysfunction, substance use, and violence. Her biological father never played a significant role in her life and she was 15 years old when her mother ran away. After her mother left, she shared she had to step up to help care for her siblings, as her step-father was frequently away working. Her responsibilities increased when she was around grade nine, as she became pregnant with her first child. By this point in her life she had experienced the loss of both her biological parents, suffered through being molested by an uncle, and experienced neglect in foster care. The dysfunction in her life persisted throughout her adulthood. . . .
[36] The accused has two children; her daughter, born in 1998, and her son, born in 2011. Her domestic relationships involved violence and emotional abuse. Prior to leaving her son’s father for an emergency women’s shelter in Winnipeg, she suspected that he sexually abused their son. She obtained Manitoba Housing, where she lived for three years with her children, until her arrest.
[37] Her stepfather is caring for her children, with the help of her sister, in Fox Lake Cree Nation.
[44] After finding that the combination of intoxication and the accused’s “erroneous belief that Mr. Bird had assaulted her son resulted in the lack of requisite intent for murder”, the trial judge rejected the accused’s assertion that the verdict was based on provocation and found that there was a reasonable doubt based on the rolled-up instruction:
Consequently, after considering the evidence that I have set out and the facts that I have determined, I find that [the accused] acted on the belief that she thought she saw the deceased sexually assaulting her son and her level of intoxication played a part in her honest but mistaken belief in this regard. But her subsequent actions do not meet the test of provocation. So in this case, there is a reasonable doubt on the basis of the rolled-up plea. The location and number of stab wounds around the heart, two of which pierced the heart, would have otherwise indicated an intent to commit murder. Also, I want the record to be clear, as far as this Court is concerned [the accused] killed an innocent man.
[47] He found that the accused’s actions brought her within a high level of moral culpability....
Analysis
[64] However, in my view, the trial judge erred in his analysis with respect to the accused’s moral blameworthiness after making these findings of fact. I see two problems with his analysis and they are interrelated: 1) he failed to consider the provocative circumstances captured by the rolled-up instruction; and 2) he failed to address appropriately the Gladue factors present in this case.
[65] The trial judge based his finding of high moral culpability on the nature of the offence, which he appropriately referred to as the “brutality and the degree of violence of the stabbing.” While the nature of the offence was an important factor when assessing the accused’s moral blameworthiness, it was not the only factor that had to be considered. More was required given the circumstances of intoxication and provocation arising from the rolled-up instruction and given the Gladue factors applicable here.
[66] The provocative circumstances arise from the trial judge’s finding that the accused had an honest but mistaken belief that Mr. Bird was sexually assaulting her son.
[67] The Crown acknowledges that there is a provocative element present in these circumstances, but says that it was a question of weight for the trial judge. I agree. However, a sentencing judge must consider all the circumstances of the offence, including whether it involved provocation (see R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290 at para 234). While Stone is a case involving provocation under the Code, this principle is instructive for the provocative circumstances that exist in this case. The trial judge’s error was that he did not address his mind to these circumstances when asssessing the accused’s moral blameworthiness, as he should have done.
[68] The Crown rightly asserts that provocation will not “always involve findings of insignificant moral culpability or that low range sentences can be attributed solely to the provocation factor” (Stone at para 248). However, I do not see the choice here being only between “high” and “insignificant” moral blameworthiness. The question is whether the accused’s moral culpability was reduced in light of the provocative circumstances of the offence and her personal circumstances.
[69] As for the accused’s personal circumstances, the trial judge correctly stated that the Gladue factors were mitigating, however, I see no evidence in his reasoning that he addressed these factors in the context of their impact on the accused’s moral culpability. Tellingly, he stated they were mitigating after he found the accused’s level of moral culpability was high.
[71] Systemic and background factors will bear on the culpability of the offender “to the extent that they shed light on his or her level of moral blameworthiness” (Ipeelee at para 73). They do not operate as an excuse or justification for the criminal conduct, but are “mitigating in nature in that they may have played a part in the aboriginal offender’s conduct” (ibid). Failing to take these considerations into account violates the principle of proportionality, the fundamental principal that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (see also para 83).
[72] The Gladue factors present here called for such an assessment. The accused’s dysfunctional upbringing of alcohol abuse, sexual abuse and domestic violence provided important context to understand her actions when assessing her moral blameworthiness (see Ipeelee; and R v Pop, 2013 BCCA 160 at para 28). The failure of the trial judge to do such an assessment was an error in principle. As a result, deference is not owed to his finding of high moral blameworthiness.
[73] The provocative circumstances of the offence, assessed in the context of the Gladue factors pertinent to the accused, attenuates her moral blameworthiness. However, I would not describe her moral culpability as low, as she asserts, given the brutal and violent nature of the offence.
[77] In my view, a sentence of seven years reflects the brutality and violence of the offence and its consequences on Mr. Bird’s family, the attenuated moral blameworthiness of the accused and her positive efforts at, and prospects for, rehabilitation.
[78] The accused had already served the equivalent of a sentence of four years and approximately two months at the time of sentencing. Therefore, based on a seven-year sentence, the go-forward sentence at that time would have been two years and ten months.
The sentence was reduced from 10 years to 7. (Para 79)
R v Truong (ABQB)
[July 10/19] – Charter s.8 - Review of Search Warrant - Unconfirmed Tip & Credibility of CI – 2020 ABQB 337 [Mr. Justice Robert A. Graesser]
AUTHOR’S NOTE: Herein, Justice Graesser provided a good overview of the structure necessary for a Charter-compliant police investigation following a Confidential Informant's tip about drug activity of a particular person. For the police to reach reasonable grounds, they must corroborate the tip with surveillance of consistent behaviour (be it street level trafficking or higher level interactions) and it is not enough for the police to share the CI's history for only Perjury or Obstruction. Other offences against the administration of justice or crimes of dishonesty are important to determining their credibility. Also, more detail is required about the CI's past success rate: convictions, seizures, matching of information provided, etc. ... Also the case provides a good overview of the case law in the province of Alberta.
Pertinent Facts
[8] The Statement of Admitted Facts provides some of the narrative in the investigation, focusing on the vehicle stop and arrest of Ms. Truong on June 6, 2017. It includes a copy of the ITO affirmed by Constable Bruce Dowd on June 5, 2017.
[9] It sets out the basic narrative, which included the admission that a brown bag on the passenger seat of the Venza contained 956 grams of powder cocaine and 156.3 grams of crack cocaine. A purse, which had a wallet with $625 in it and a cell phone, was also found on the passenger seat There were also various cheques payable to Ms. Truong from her business, Good Nails and Spa Ltd. A second cell phone was located in a cupholder in the Venza.
[11] Constable Dowd relies on information received by CPS “from a confidential informant” that Ms. Truong is selling a large volume of cocaine and marijuana. He says (paragraph 7)
Covert surveillance has been able to corroborate the information provided by the Confidential Informant including observing activities that are consistent with drug trafficking.
[13] In paragraph 15, Constable Dowd describes information from the source handler in a “Confidential Informant Credibility Statement”:
a. CI has provided information in relation to criminal activity on ten occasions;
b. CI has proven reliable and has aided the COPS in multiple seizures of stolen property, illegal narcotics, and restricted or prohibited firearms;
c. CI obtains information through associating with persons involved in criminal activity;
d. CI has never been charged with Perjury or Obstruction;
e. CI does have a criminal history;
f. The motivation for CI providing information is a moral obligation.
[14] The information from the confidential informant was:
a. Where Ms. Truong lives on Memorial Drive;
b. That she drives a Venza with a specific license plate number;
c. Her telephone number;
d. That she owns a nail salon;
e. That she gambles and frequents the Grey Eagles Resort and Casino;
f. That she has been previously investigated by CPS for drug offences;
g. She is a multiple ounce cocaine distributor; and
h. She is a multiple pound fresh cut marijuana distributor.
[15] Constable Dowd says he tried to corroborate some of the information, but his searches showed the Venza was registered to someone else and Ms. Truong’s address was different. The telephone number was confirmed. He was able to confirm that Ms. Truong was a director and shareholder for Good Nails and Spa Ltd, although the business license for the company had been applied for by someone else.
[17] Constable Dowd confirmed that Ms. Truong has two prior convictions for possession of a controlled substance for the purpose of trafficking, one in 2003 and another in 2005.
[19] He described the surveillance on June 1 and learned that Ms. Truong left the Memorial drive house, got into the Venza and drove eastbound on Memorial Drive. At some point, surveillance saw an unknown male place a large garbage bag into the rear of the Venza, have a conversation with Ms. Truong and walk away, carrying a small object in his hands.
[20] Constable Dowd offers the opinion that in his experience the contents of the garbage bag “is likely fresh cut marijuana”.
[27] Sgt. Tudor testified that at 5:35 pm on June 1, 2017, he saw a gray 2014 Toyota Venza pull up to a house on Maitland Green. The Venza had been previously linked to Ms. Truong, although she was not the registered owner and he could not tell if she was in the Venza at the time. Moments after the car stopped at the house, a younger-looking Asian male walked out of the house and got into the passenger side of the car. Three minutes later, the man got out of the car and returned to the house. The car then drove away.
[28] Sgt. Tudor testified that from his experience as a drug investigator, he believed he had witnessed a drug transaction and that based on what he knew about Ms. Truong, he had grounds to arrest at the time (although he did not know if she was actually present or involved in the transaction).
[29] Following the surveillance on June 1, the team decided that they would do further surveillance and try and stop Ms. Truong when she likely had cocaine in her car with her.
[31] Sgt. Tudor testified that after June 1, his involvement was mainly speaking to Constable Labranche during the surveillance and listening to events as they occurred in the phone room. On June 6, he was in the phone room listening on the police radio. After the team learned that Ms. Truong had left her Memorial drive residence in her Venza, Constable Labranche instructed a traffic stop of her car. That occurred, and Ms. Truong was detained. The search warrant was executed at the location where the Venza was stopped, and the search team found cocaine and money in the car. Ms. Truong was then arrested for possession of cocaine for the purposes of trafficking and possession of the proceeds of crime, and transported to CPS headquarters-Westwinds.
[34] Sgt. Tudor also acknowledged that he was not able to see who was in the car during the surveillance on Maitland Green he was involved in, although he believed Ms. Truong was the driver. He drew that conclusion from previous surveillance where Ms. Truong was the only driver of the Venza.
Charter s.8 Analysis
[71] The search of the Toyota Venza that led to the discovery of over a kilogram of cocaine and a relatively small amount of cash followed a search warrant for the Venza. The warrant was obtained based in the ITO sworn by Constable Dowd on June 5, 2017....
[72] In the Bible of section 8 cases, Hunter v Southam is Genesis. It continues to provide the guiding principles for the interpretation and application of section 8 of the Charter. Morelli provides instructions to the reviewing Court at paragraphs 39-41:
[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, 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.
[73] Justice Renke summarizes the law on reasonable and probable grounds in Gilmour [2017 ABQB 735]at paragraphs 9 – 13:
[9] Reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at a specified time and place refers to a level of proof that is
• less than proof beyond a reasonable doubt - that is, the guilt of the suspect is not the only reasonable inference based on the evidence; reasonable and probable grounds for belief do not exclude inferences that the suspect is innocent: Clow at para 13.
• less than proof on a balance of probabilities - that is, the guilt of the suspect is not more likely than his or her innocence; reasonable and probable grounds to believe do not depend on a comparison of the respective weights of the inferences of guilt and innocence: Mugesera v Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 100, 2005 SCC 40 at 114. In my opinion, both the reasonable grounds and proof on a balance of probabilities standards share a requirement that the requisite inferences be probable – i.e., more than trivially likely and not unlikely. The reasonable grounds standard, though, does not involve a comparison of the requisite probabilities to the probabilities of other competing inferences. The balance of probabilities standard, in contrast, does involve this comparison. That is, the reasonable grounds standard does not require that the inferences sought be the most likely or the more likely inferences arising from the evidence. No particular degree of probability or likelihood is specified by the reasonable grounds standard. Probability, of course, may range from low to high. In my view, the degree of probability must be approached normatively. The issue is whether the inferences sought are sufficiently probable to justify State interference with reasonable expectations of privacy.
• more than reasonable suspicion (and certainly more than mere suspicion) - that is, the evidence supports a reasonable likelihood, not only a possibility, that an offence has been committed and that evidence of that offence will be found as specified: Mugesera v Canada at 114; R v Kang-Brown, 2008 SCC 18 at para 75; R v Chehil, 2013 SCC 49 at para 27; R v Sanchez, 1994 CarswellOnt 97, 1994 CanLII 5271, 93 CCC (3d) 357 (Gen. Div), Hill J at paras 30-32 (CarswellOnt); Uppal at para 29.
[10] In a word, reasonable and probable grounds to believe entail a finding of credibly-based probability, an inference with some appreciable or non-trivial likelihood based on the evidence that does not exclude other competing inferences: Hunter v Southam at 167-8; Sanchez at para 30 (CarswellOnt). According to Justice Martin in Clow at para 90,[90] ...While certain conduct of the Accused may be open to various inferences, including innocence, it is sufficient if the issuing justice reasonably relied upon one of those available inferences in finding reasonable and probable grounds to issue the warrant.
[11] The belief, finding, or inference that it is probable that an offence has been committed and that evidence of that offence would be found as specified must be based on “credible” evidence: the standard is one of credibly-based probability: Clow at para 10. Mugesera refers in para 114 to “compelling and credible” information. Morelli and Aranjo refer to “reliable” evidence that might reasonably be believed and to credible and reliable evidence.
[12] The belief, finding, or inference is objective. The perspective is that of the reasonable person. More precisely, the perspective is that of the reasonable person “standing in the shoes of a police officer:” Sanchez at para 32 (CarswellOnt). Police training and experience may permit an appreciation of the significance of facts that persons without that training and experience would miss.
[13] In R v Quilop, 2017 ABCA 70 at para 27, the Court of Appeal reminded reviewing judges not to degrade the reasonable probability standard into the reasonable possibility standard:[27] ... It is not enough to suspect that a targeted individual is engaged in criminal activity. A suspicion is no more than a feeling that an assumed set of facts might possibly obtain. Reviewing judges must not substitute the more demanding reasonable grounds standard with the less onerous standard of reasonable suspicion.The evidence properly relied on must show a reasonable likelihood or probability that the suspect is or was engaged in the alleged criminal activity and that evidence of that criminal activity is reasonably likely to be found at the place to be searched.
Confidential Informant Information
[87] As held in Gilmour at paragraph 21, there are five elements to consider in the context of informant information (from R v Caissey, 2007 ABCA 380, aff’d 2008 SCC 6):
1. The age of the information;
2. The content of the information;
3. The sources of the information;
4. The reliability and credibility of the informant; and
5. Corroboration of the information.
[89] The content of the information is largely unremarkable, such as where Ms. Truong lives, what kind of car she drives, her telephone number, and that she owns a nail salon. None of that is particularly secret. More notable, however, is the informant’s knowledge of Ms. Truong’s previous involvement with CPS and their knowledge that she gambles at a particular casino. Their information about her drug trafficking activities was specific: multiple ounce cocaine transactions and large quantity freshly cut marijuana transactions. They do not describe her as a dial-a-doper or someone who runs dial-a-dopers. The information suggests someone who knows a fair bit about Ms. Truong, or who has been told a fair bit about her.
[90] There is scant information about their sources. That is understandable because of the need to protect the informant’s identity, but “associating with criminals” is so vague as to be unhelpful. It does not, for example, say the informant has been in the drug trade or provide any compelling information that what they have learned is other than rumor or gossip.
[91] Reliability and credibility are only partly established. It is helpful that the informant has given information on some 10 previous occasions and that their information has resulted in numerous seizures. There is no information as to how many times their information has not been reliable or helpful. Of greater concern is the fact that there are no details given of their criminal record. The informant obviously has one. It is of little assistance to simply say they have never been charged with perjury or obstruction. That begs the question about crimes of dishonesty like fraud and theft and other things that relate to assessing a person’s reliability. The motivation of “moral obligation” may be a positive factor as informers for money may be less credible than differently-motivated informants, although “moral obligation” can cover a wide range of intentions including spite or revenge.
[92] ... Surveillance did not corroborate Ms. Truong being involved in multiple ounce cocaine transactions or large quantity fresh cut marijuana transactions. Sgt. Tudor saw what he believed was a dial-a-dope transaction. Sergeant Leckie saw someone put a large bag in her trunk, talk to Ms. Truong and carry something small back to his car. Without more, it is difficult to conclude the bag likely contained fresh cut marijuana or that there had been a drug transaction of any kind at all. Constable Perkins saw the Venza at a residence on Aboyne Crescent, where a woman stopped in front and went into the residence. She emerged a few minutes later carrying a bag with Styrofoam containers in it. Without more, it is difficult to conclude that a drug transaction of any kind had taken place.
[93] In my view, this is a situation where the informant information is somewhat weak. What he got right and what was confirmed before the ITO was affirmed was mixed. More importantly, there is limited information with which to assess his credibility and reliability.
[94] Justice Renke commented on the reliability of informant information relating to the number of times informant has provided information and what has resulted from that information in Gilmour. At paragraphs 27 and 28 he stated:
[27] The ITO did not support a finding that the CI’s information was strongly reliable. Cst. Kowalchuk had known the CI for less than a year. Cst. Kowalchuk did state that the CI had “provided reliable, actionable information in the past, subsequently used twice in CDSA warrants to seize drugs.” Moreover, the CI “has provided information on other individuals involved in criminal activity,” and “has been used as intelligence and has been corroborated through various investigations and techniques” (para 19). However, Cst. Kowalchuk did not disclose whether any convictions or even any charges arose from the CI’s information. See Uppal at para 55. The reference to “various investigations and techniques” was too vague to be useful.
[95] The same can be said here. While the source handler had obtained information from the informant on ten occasions, there was no information given about charges or convictions; only “seizures”.
[96] As to credibility, Renke J stated at paragraphs 29 and 30:
[29] Cst. Kowalchuk stated that the CI “does not have any convictions for Fraud, Obstruct[ion of] Justice, Public Mischief or Perjury.” This recitation was more useful than a simple claim that the CI had no convictions that would cause an affiant “to doubt the authenticity of the information provided” (Gore at para 18). Nevertheless, more complete criminal record information could have been provided, including whether the CI had any criminal record. See Uppal at para 55. Protecting CI safety or operational value would demand that a criminal history not be so detailed that it would serve as identifying information.
[30] The nature of the CI’s allegations, the lack of specification of the CI’s sources of information, and the inadequate information about the CI’s reliability and credibility entail that the CI’s information can be given little weight. As in Quilop at para 29,Given the frailties of this informant’s information, the focus must be on what the police actually observed or at least on additional independent information.
[97] In Herta, the Ontario Court of Appeal discussed similar issues at paragraph 42:
[42] The most significant concern lies with whether the CI information was compelling. As noted by Martin J.A. in R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.),at p. 219, and later adopted by Wilson J. on appeal, “[h]ighly relevant to whether information supplied by an informer constitutes reasonable grounds” are considerations involving whether “the informer’s ‘tip’ contains sufficient detail to ensure it is based on more than mere rumour or gossip” and “whether the informer discloses his or her source or means of knowledge”. Bald conclusory statements cannot support the veracity of CI information: Debot, at p. 1168-9; Rocha, at para. 26.
[98] The Court there concluded at paragraph 34:
[34] Even so, it is the totality of circumstances that informs the strength of the CI information. Accordingly, weakness in one of the Debot criteria can be compensated for by strengths in the other areas.
[99] I said something similar to that in Gore at paragraph 34, describing informant information as a spectrum: the more trustworthy the informant the more reliable his or her information is likely to be. After reviewing many of the authorities referred to in Herta, I concluded that the informant evidence was weak. The surveillance evidence disclosed ambiguous information. No actual exchanges were observed and there was no information as to what was exchanged if anything. I concluded at paragraph 106 that there was nothing in the information presented that escalated suspicion to reasonable probability.
[100]In Gilmour, Renke J referred to the Alberta Court of Appeal decision in Quilop (as did I in Gore) referencing the Court of Appeal’s conclusion in that case at paragraph 26:[26] With respect, we are of the view that the trial judge erred in concluding that the facts he found amounted to reasonable and probable grounds for arrest. It is important to note that there were very few surveillance observations: two, to be exact. And not only were they consistent with lawful behaviour, but there was also nothing in the observed behaviour which objectively suggested the appellant had committed or was about to commit an indictable offence. The police simply suspected drug trafficking. Mere suspicion cannot justify an arrest.
[104] My conclusion on the confidential informant’s information in this case is that it is on the weaker end of the spectrum with reference to the generality of the drug trafficking information given and the absence of much information that would allow the reader to make any meaningful assessment of the informant’s reliability and credibility. In particular observations about fresh cut marijuana are extremely speculative, being based on one observation of a garbage bag. The only other “transaction” observed was believed to be a dial-a-doper transaction which suggests low level trafficking and not “multi ounce distributions”. As in Herta and Gilmour, corroboration of weak informant information requires significantly more by way of subsequent observations and investigation by CPS.
Criminal Record
[105] How much store can be placed on a criminal record for related offences? Here, the ITO contained information about convictions in 2003 and 2005. The offences here took place in 2017, 12 years later than the last conviction. Dated criminal records are of little assistance and while they may add to the suspicion, they do not establish guilt or probable guilt. Jurors are told that all the time.
[106] My conclusion on Ms. Truong’s dated criminal record is that it is of very little assistance in the analysis of the sufficiency of the information provided in the ITO. It is not irrelevant, but its impact declines with age. It creates suspicion but nothing more.
Surveillance
[108] The first was on May 29. Sergeant Leckie saw Ms. Truong leave from the Memorial Drive residence, get into the Venza and drive away. He then later saw a man put a large garbage bag into the rear of the Venza, and have a conversation with Ms. Truong. The man then walked away carrying a small object in his hands. Constable Dowd says that he believes the contents of the black garbage bag to be fresh cut marijuana. The basis for his belief is his experience as a drug investigator with CPS.
[110] The second was on June 1. Constable Perkins saw the Venza parked at the rear of an address on Aboyne Crescent. A woman got out of a car parked in front of the address carrying nothing, went to the front door of the residence there, and emerged a minute later carrying a white plastic bag carrying white Styrofoam containers and get back in her car. Constable Dowd opines that drug traffickers conduct their transactions inside residences for concealment purposes, and they use every day items to disguise what they are selling and to provide a cover story for the buyer.
[111] There is no information that Ms. Truong (who does not own the car) had driven the Venza there, or was inside the residence, or had anything to do with the residence, the woman who went in, let alone whether she had any dealings with the woman inside.
[112] Later on June 1, Sgt. Tudor saw the Venza park in front of a residence on Maitland Green. He could not see who was driving the Venza. An unknown male came out of the residence and got into the passenger side of the Venza. He remained there for three minutes, then got out of the Venza and returned to the residence. Sgt. Tudor didn’t see or hear what was going on inside the Venza, and he did not see the male carry anything away with him. Constable Dowd describes that as being consistent with a dial-a-dope transaction.
[113] One of the difficulties with the observations in general is that there is no apparent continuity of the surveillance. It is only speculation that Ms. Truong was in the Venza at the time.
[127] My conclusion from reviewing these decisions is that Ha is the Alberta Court of Appeal’s guiding authority on police observations factoring into whether there are reasonable and probable grounds for arrest. That is the same test for granting a search warrant.
[128] Other observations relevant to the facts and circumstances in this case are that:
1. The cases are highly fact driven;
2. Quilop is of little or no authority, as is Bui, and they should be read carefully and limited to their facts;
3. The test for reasonable and probable grounds is not on a balance of probabilities, but rather on “reasonable probability” (Ha);
4. Inconsistencies do not preclude the formation of reasonable grounds to believe an offence is occurring or has occurred (Warsame);
5. considerable deference will be given to the opinions of police officers experienced in drug trafficking (Ha);
6. innocent explanations for observations made during surveillance by experienced police officers are less important than they were considered to be in NO (Ha);
7. Less scrutiny will be given to arrests in exigent circumstances such as roadside dynamics (Ha and Zolmer);
8. The time for assessing the sufficiency of the arresting officer’s reasonable and probable grounds is immediately prior to the arrest (Clayton and Ha); and
9. One officer can rely on information received from another officer (Ha and Warsame);
Application
[129] I am of the view that there was no reasonable basis for the search warrant to have been issued. The information in the ITO did not move past reasonable suspicion to reasonable grounds. The informant information, which was the strongest of the evidence put into the ITO was lacking.
[130] The bald statement that while the informant has a criminal record there have been no perjury or obstruction charges against them is insufficient to make any meaningful assessment of credibility. The reliability information is lacking as well; while there have been seizures, there is no information about arrests, convictions and equally important instances where the information has been incorrect.
[131] While the informant obviously had some knowledge about Ms. Truong, the source of the knowledge (associating with criminals) is skimpy. And here, the fundamental allegations: that Ms. Truong dealt cocaine in multiple ounce quantities and fresh cut marijuana in large quantities were not verified in any meaningful way. The surveillance by CPS gave some reasonable basis for suspicion, but nothing that moved past that low threshold.
[132] The surveillance unearthed nothing but for the one incident outside a house on Maitland Green. That was consistent with a dial-a-dope transaction. Those are small quantity transactions. But there was no information that Ms. Truong was actually in the vehicle at the time. The incident involving the large bag being placed in the trunk of the Venza involved Ms. Truong, but it occurred in an open and public way. It could have been fresh cut marijuana in the bag; it could have been any number of other things. One of the hallmarks of drug transactions – surreptitious behaviour – was clearly lacking. Nothing is known about the man who put the bag in her trunk, and there was apparently no attempt to find out what was actually in the bag.
[134] Whatever occurred on Aboyne Crescent did not involve anyone coming or going from the Venza, and there is no information that Ms. Truong was in the house. Nevertheless, the incident was used to describe the habits of drug dealers. Using that incident to support a search warrant for a vehicle parked behind the house is such a stretch it should be excluded. However, keeping it in provides nothing on which a search warrant could be based in any event and suggests Constable Dowd was trying to inflate Sgt. Tudor’s observation from Maitland Green that did not include Ms. Truong by adding one incident (the bag in the trunk) that might rise to suspicion but nothing further, and the incident on Aboyne Crescent that is hard to find even suspicious.
[135] Weak informant information and weak surveillance information do not combine to equal reasonable grounds for a search warrant.
[138] Here, there is weak informant information with inadequate information about his criminal record on which to consider his credibility, limited corroboration of any key information about criminal activity, and only one “transaction” believed to be a drug transaction. And that one observation did not identify Ms. Truong as having anything to do with it.
[139] My conclusion on the totality of the circumstances here is that the search warrant was invalidly granted, and the search of the Venza based on the search warrant was a violation of Ms. Truong’s section 8 rights.
Section 24(2) Analysis
Seriousness of the Breach
[179] While I do not find bad faith or anything egregious on the part of Constable Dowd, I do not find that he acted in good faith. I am of the view that read as a whole the ITO was misleading. It appears to have been drafted on the basis that there was reliable and credible informant information as well as three drug transactions. Instead, there was deficient information about the informant, and only one transaction that might be said to support the information that a dial-a-dope transaction had been conducted in the Venza.
[181] I do not think a precondition of excluding evidence under section 24(2) is police misconduct of some sort. Whatever Constable Dowd’s intent was, his drafting created an exaggerated view of Ms. Truong’s involvement in drug trafficking and by treating her and the Venza as one in the same. His beliefs were unreasonable and were instead hunches. Precision is required in the drafting of ITOs, and this one comes up short.
[182] “Seriousness” of the breach does not equate only to misconduct of some sort. In my view, the granting of a search warrant, authorizing state intrusion into a private place, in non-exigent circumstances, and on insufficient grounds is a serious Charter breach. It is obviously not as serious as many types of breaches, but neither is it trivial. The granting of a search warrant on insufficient grounds is not a technical breach, but rather goes to the heart of judicial authorization.
Impact of the Violation on the Applicant
[183] Here, the impact of the breach was to have Ms. Truong pulled over while lawfully driving, taken out of her vehicle, arrested and handcuffed and detained for over an hour. The vehicle she was driving was searched and the contents of bags and her purse were examined without her consent. The search warrant triggered all of this, together with subsequent breaches of her legal rights. It was totally unnecessary that Ms. Truong be handcuffed in the back of a police car and denied the ability to go to a washroom, let alone be delayed in accessing legal advice.
[184] But for the issuance of the search warrant, none of this would have happened to Ms. Truong. These are not trivial matters.
[185] The search was of a motor vehicle that was not owned by Ms. Truong but was being driven by her. I recognize that there is a lesser expectation of privacy in a vehicle than there is in a residence.
Balancing
[193] I have been able to find only a few post-Grant decisions where the results of a search conducted under a defective search warrant have not been excluded from the evidence.
[206] Where evidence results from a non-trivial breach and the consequences of that breach result in a serious intrusion into the accused’s privacy rights, it should be rare for the breach to be washed away because of the public’s interest in the adjudication of criminal cases on their merits.
[207] A myriad of cases at all levels in all Courts speak of the importance, especially in drug trafficking cases, that these matters go to trial on their merits so that highly relevant (and often crucial) evidence is put before the trier of fact.
[212] From the Ontario line of cases, it appears that blameless police conduct with “no taint of impropriety” will support the inclusion of the evidence even though the search warrant should not have been granted on the information contained in the ITO. If there has been conduct that is less than exemplary, such as an “inattention to constitutional standard” or “carelessness”, exclusion remains a remedy under section 24(2).
[218] From my review of the case law referenced above, I am of the view that allowing the seized items into evidence here would bring the administration of justice into disrepute. The granting of search warrants authorizing state intrusion into a person’s private spaces depends on proper judicial authorization. Where that authorization is lacking because of insufficient grounds, people with an understanding of Charter rights and the whole of the circumstances would rightly lose confidence in the due administration of justice.
[224] In this case, I am satisfied that the appropriate remedy for the section 8 breach is exclusion of the evidence seized from the Venza.
[225] To find otherwise would set an unreasonably low threshold for granting search warrants for vehicles and drivers suspected of engaging in drug transactions from vehicles. The failure to exclude the evidence in the face of a Charter breach that led to the finding of the evidence would be ignored.
[226] While it would be tempting to allow the evidence in, especially in circumstances where the accused is in all likelihood guilty of the offences she is charged with, and compensate the Charter breach with the promise of a reduction in sentence if Ms. Truong is convicted. But that would essentially overlook the importance of proper judicial authorization of search warrants.
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