This week’s top three summaries: R v Chioros, 2019 ONCA 388, R v Flintroy, 2018 BCSC 1777, and R v Goddard, 2019 BCCA 164.
R v Chioros (ONCA)
[May 10/19] Charter s.9 - Grounds for Arrest - Anonymous Tip and the Debot Factors - 2019 ONCA 388 [C.W. Hourigan J.A., David M. Paciocco J.A., and A. Harvison Young J.A.]
AUTHOR’S NOTE: The Ontario Court of Appeal gives a pithy and useful treatment of the Debot factors applied to an anonymous tip. In this case, the tip was a bald assertion that the Appellant was a drug dealer. Consequently, much was required to corroborate it. The Court found that rumours regarding the appellants acquaintances and some surveillance suggesting "counter surveillance driving" was insufficient. No surveillance of transaction-like activity and no observations of attendance at known drug dealer's address was conducted. The state's efforts fell woefully short.
"In September 2015, the Saint Thomas police received an anonymous Crime Stoppers tip that the appellant was trafficking large amounts of cocaine in St. Thomas. The police conducted surveillance of the appellant over a two-month period and he was eventually arrested in London. On a search incident to arrest, the police discovered cocaine on his person and in his vehicle. As a result of this discovery, the police obtained a warrant to search the appellant's home. That search revealed more cocaine and marijuana. The appellant was charged with possession of cocaine for the purpose of trafficking, possession of marijuana for the purpose of trafficking, and possession of oxycodone." (Para 1)
"The Crime Stoppers tip was received by Cst. Spicer on September 3, 2015 and included the appellant's name and address. It also referenced the fact that he drove a silver Audi and the licence plate number of that vehicle. In addition, the tipster advised that there was a Harley Davidson motorcycle and a Ford Mustang in the driveway of the appellant's residence. Cst. Spicer was able to confirm that day that the appellant resided at the address provided and that the silver Audi was registered to him." (Para 5)
"The police commenced surveillance of the appellant's residence on September 17, 2015. On that date, Cst. Spicer saw the appellant driving the Audi. The other two vehicles mentioned in the tip were never seen at the appellant's residence, nor was the appellant ever seen driving either vehicle." (Para 6)
"On September 23, 2015, Cst. Spicer observed the appellant driving with Jason Daniels. Cst. Spicer knew Mr. Daniels from high school. He believed that Mr. Daniels was a drug dealer when they were at school. In addition, he had been told by several sources, including credible informants, that Mr. Daniels was a drug dealer. Cst. Spicer testified that at the time Mr. Daniels was the subject of a drug investigation. However, Cst. Spicer did not know if Mr. Daniels had ever been convicted of drug related offences or arrested for same." (Para 7)
"The police followed the appellant and Mr. Daniels to an apartment on Ross Street, where they entered unit 11. Cst. Spicer believed that this unit was occupied by Mr. Daniels." (Para 8)
"The following day, September 24, 2015, the police observed the appellant pull his vehicle over and lift the hood. He examined the vehicle for a few minutes and then drove off. The officers saw him cut through a parking lot, do a U turn, and then continue down the street. Both Cst. Spicer and Sgt. Johnstone described these actions as counter-surveillance techniques" (Para 9)
"Later that day, the officers observed the appellant arrive in the driveway of a group of high-rise apartment buildings on Windermere Drive in London. Each building had approximately 150 units. The appellant entered 655 Windermere Drive, but the officers did not see which apartment he visited. He was there for over an hour and was observed exiting the building carrying a bag that appeared to be weighted. Sgt. Johnstone obtained information from London Police that they had received an anonymous tip that a major drug dealer lived at 655 Windermere Drive and that his apartment was being used as a stash house." (Para 10)
"On October 27, 2015, Cst. Spicer observed the appellant drive to the Ross Street building." (Para 11)
"On November 5, 2015, the police observed the appellant return to 655 Windermere Drive. The appellant went inside the building. He did not appear to be carrying anything. He came out about an hour later carrying a bag. Again, the officers did not know which unit the appellant entered." (Para 13)
"The police arrested the appellant shortly after he left the building. They searched him incident to arrest and found no drugs on his person. A small amount of marijuana and multiple cellphones were found in his vehicle at that time. A search at the police detachment located approximately 249 grams of cocaine in the appellant's boxer shorts. A subsequent search of his home turned up 20 grams of cocaine and 214 grams of marijuana." (Para 14)
Section 9 Analysis
"Pursuant to s. 9 of the Charter, the police must have reasonable and probable grounds to believe that they have sufficient evidence of a crime to facilitate an arrest. When the grounds to arrest stem, at least in part, from a confidential informant, the court must conduct a Debot analysis and look at the totality of the circumstances to determine if the confidential information is sufficiently credible, compelling, and corroborated to support the arrest. Weaknesses in one area may be compensated by strengths in the other two: R. v. Debot, 1989 CanLII 13 (SCC),  2 S.C.R. 1140, at p.1168." (Para 17)
"Given that this was an anonymous tip, there was no evidence regarding the tipster's credibility. Nor was there evidence regarding his reliability or motivation in providing the information. It was an error, therefore, for the trial judge to find the tip to be credible." (Para 18)
"The tip was also not compelling. It consisted of a bald assertion that the appellant was engaged in drug dealing without any information regarding the details of his alleged activities, whether the tipster had firsthand knowledge of the alleged activities, or the currency of the information. It included readily available public information regarding the appellant's address and car, along with information about some, but not all, of the vehicles that were sometimes parked in his driveway." (Para 19)
"The trial judge further erred in finding that the tip was corroborated. There was no meaningful corroboration. At no time did the police observe the appellant engage in any drug activity. Nor did they witness him enter the apartment of the alleged major drug dealer. The counter-surveillance evidence might be considered to a modicum of corroboration. However, its significance is diminished by the fact that there were no alleged counter-surveillance moves on the second trip to 655 Windermere Drive. The evidence regarding Mr. Daniels was uncorroborated by objective evidence, such as a police record. At its highest, it amounted to an assertion that the appellant associated with a suspected drug dealer." (Para 20)
"A proper balancing of the Debot factors leads inexorably to the conclusion that the police lacked sufficient grounds to effect an arrest. The arrest amounted to a violation of the appellant's s. 9 rights and the searches that flowed from the arrest breached his s. 8 rights." (Para 22)
Seriousness of the State Violation
"With respect to the seriousness of the state conduct, this was not a close call. It should have been clear to the police that they had, at most, unconfirmed suspicions about the appellant's possible involvement in drug dealing. Throughout their investigation, the police failed to undertake even the most rudimentary steps to verify information, including the extent of Mr. Daniels's prior drug involvement, the source of the information about the apartment at 655 Windermere Drive being used as a stash house, and confirmation of whether the appellant ever visited that unit. The investigation was not time-sensitive and there was no reason why the police could not have investigated further in an effort to gather truly corroborative evidence. It is serious state misconduct when the police make a choice not to conduct a proper investigation, but instead choose to effect an arrest on a member of the public based on unconfirmed and unreliable information. This factor pushes in favour of exclusion of the evidence." (Para 24)
Impact on the Charter Protected Interests of the Accused
"The impact of the breaches on the appellant's Charter-protected rights was profound. He was detained against his will following a dynamic public takedown by the police. Searches were then undertaken of his person, his vehicle, and his residence. This factor also militates in favour of exclusion of the evidence." (Para 25)
"In our view, a balancing of the Grant factors results in the conclusion that the inclusion of this evidence would bring the administration of justice into disrepute. The court cannot be seen to endorse the type of misconduct engaged in by the police in this case." (Para 27)
Acquittals entered on appeal (Para 28)
R v Flintroy (BCSC)
[Oct 12/18] Charter s.8 - Seizure of Passport Photo from Federal Government Agency - 2018 BCSC 1777 [Williams J.]
AUTHOR’S NOTE: Sometimes a defence lawyer just needs a tiny wedge and big sledge hammer. Here, that wedge was the administrative disclosure of a passport photograph. In a recently released series of judgements (R v Flintroy), Justice Williams went through the reverberations of a decision he made in October. The end result was reported by the news here: Global News. At the core of the analysis was the finding made in this summary - interpretation of federal case law that allowed the Passport authorities to share a picture of the Accused. The judge found that it did not allow the police to seize it as they are still bound by the Constitutional protections in s.8. In other words, authorization for one agency to share is not authorization for another agency to seize or search. The photograph was used for surveillance - the surveillance could not have happened but for the use of the photograph...
"In the course of the Vancouver Police Department ("VPD") investigation into suspected drug dealing activities by Dennis Halstead and others, the VPD made a request of CIC, asking to be provided with Mr. Halstead's passport photograph. The request, in a memorandum format, was transmitted to CIC. The request was made pursuant to s. 8(2) (f) of Privacy Act, R.S.C. 1985 c. P-21. On September 3, 2014, a delegate of the Director of Access to Information and Privacy responded, providing a copy of Mr. Halstead's most recent passport photo. The police subsequently used that photograph in their investigation." (Para 2)
"It is undisputed that the police did not have a warrant in their search." (Para 4)
Charter s.8 Analysis
"The basic principle applicable to the issue at bar was succinctly spelled out in the decision of the Supreme Court of Canada in R. v. Spencer, 2014 SCC 43(CanLII) at para. 68:
 A warrantless search, such as the one that occurred in this case, is presumptively unreasonable: R. v. Collins, 1987 CanLII 84 (SCC),  1 S.C.R. 265 (S.C.C.). The Crown bears the burden of rebutting this presumption. A search will be reasonable if: (a) it was authorized by law; (b) the law itself was reasonable; and (c) the search was carried out in a reasonable manner: p. 278." (Para 5)
s.8(2)(f) of the Privacy Act allows disclosure under an agreement with an agency or other government for the purpose of enforcing laws or carrying out lawful investigations - the Federal Government and BC have such an agreement (Paras 12-13)
"In the submission of the Crown, the clear import of s. 8(2)(f) of the Privacy Act and the Agreement, read together, is to authorize the disclosure of Mr. Halstead's passport photograph by CIC to the police. Accordingly, the Crown says the disclosure was therefore authorized by law." (Para 14)
"I am unable to accept the argument because it incorporates a fundamental premise that I reject: that the disclosure of the photo by CIC encompasses a search by the VPD. To my mind, that fails to consider the lawfulness of the process whereby the VPD obtained the photo from the possession of the government. If the simple issue here was whether the CIC acted unlawfully in providing the photo to the police, then it seems quite likely that CIC could point to s. 8(2)(2) (f) as a lawful authority for disclosing the photo. But that would ignore the real issue: what lawful authority did the VPD have to search for and seize the item? As the discussion which follows attempts to make clear, the matter of the disclosure is only part of the issue; it is not the whole issue." (Para 17)
"In regard to the requirement that the state have the authority to search for and seize materials, it must be able to point to a specific statute or common law rule that authorizes the search. In R. v. Caslake,  1 S.C.R. 51, Chief Justice Lamer said this:
12 In order to be reasonable, searches and seizures must be authorized by law. The reason for this requirement is clear: under both the Charter [_] and the common law, agents of the state can only enter onto or confiscate someone's property when the law specifically permits them to do so....First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law." (Para 22)
"I begin with a consideration of the plain wording of s. 8(2)(f). In my view, and particularly when examined in the context of the statute's stated purpose and the principles governing the law of search and seizure, it cannot reasonably be construed to authorize a search. Instead, it allows or permits the keeper of the record, in this case the CIC, to disclose the document where certain conditions are present. However, allowing disclosure is not by any means the functional equivalent of a lawful authority for some other individual agency to search for and seize the record. At best, to find otherwise would require this Court to infer that authority." (Para 26)
"Given the value placed upon an individual's reasonable expectation of privacy in the record, there is simply no reasonable basis to infer a clear and unambiguous authority to search." (Para 27)
"If the Crown's position were to prevail, the police would have a wide open means to search for and seize records, without there being any basic standards met: including prior judicial authorization, an articulated basis for the search and the requirement to meet and some standard of probability, among other considerations." (Para 29)"
"In the circumstances at bar, the record was disclosed on nothing more than a very cursory memorandum from a representative of the VPD, stating that Mr. Halstead was a "person of interest involved in a VPD s. 5 (1) and 6 (1) CDSA investigation"." (Para 30)
"However, for the reasons I have attempted to explain, when examined in the light of relevant search and seizure authority, the practice cannot be characterized as lawful. That the raison d'être for the particular provision is unclear, leading to the view that "it must mean something", is not a basis to find it provides the necessary lawful authority to search, nor is the apparent good faith of those who disclosed the material." (Para 37)
"As indicated, I consider the privacy intrusion to be at a modest level, but I am not prepared to agree that it is minimal. It is my considered view that the privacy interest is sufficient, in concert with the conclusion I have reached that the power to affect the search must be clearly articulated." (Para 54)
"In all the circumstances, I find that the search process whereby the police obtained the photograph was not authorized by law. The Crown has not rebutted the presumption of an unreasonable search." (Para 66)
R v Goddard (BCCA)
[May 10/19] – Sentencing - Using Increased Frequency of Reporting to Force Consent Searches – 2019 BCCA 164 [Reasons by Fitch J.A., Bauman C.J.B.C., Newbury J.A Concurring:]
AUTHOR’S NOTE: Keeping judicial "ingenuity" in probationary conditions in check is a struggle that sometimes surfaces at the appeal level. Trial judges, Crown and defence lawyers focused on the necessities of a single case sometimes miss the implications of their decisions for the rest of the justice system. Here a probationary condition was imposed that essentially punished the probationer with daily reporting if he failed to consent to a search of his electronic devices. While for this particular offender, the conditions seemed warranted - a repeat of this condition for others would be an atrocious erosion of s.8 Charter rights.
"The appellant pleaded guilty to breaching a condition of his probation that prohibited him from possessing a cell phone capable of accessing the internet contrary to s. 733.1(1) of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. He was sentenced to one day of imprisonment, in addition to eleven months' credit for pre-sentence custody, to be followed by a three-year probation order. He applies for leave to appeal and, if leave is granted, appeals a number of conditions of the probation order, arguing they are unreasonable, overbroad, vague, or unconstitutional." (Para 1)
"The appellant, who is 29 years old, has a criminal record dating back to 2010. His substantive offences include sexual offending against vulnerable individuals, including minors. He also has a history of breaching conditions of his probation." (Para 2)
On sentencing, he was given the following two conditions: (Para 33-34)
Condition 17 provides:
Condition 17: You shall, upon your consent, allow any peace officer and/or probation officer to examine any device in your possession and permit any peace officer to bring any device in your possession to the police department to verify compliance with this order. You shall provide any peace officer and/or probation officer any passwords, access codes and manuals associated to any device in your possession to enable examination of the device. If you do not consent, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer decides that daily reporting is not necessary.
Condition 18 provides:
Condition 18: You shall, upon your consent, allow any peace officer and/or probation officer to access your residence to confirm your compliance with the conditions of this order. If you do not consent to allow a peace officer and/or probation officer access to your residence to confirm compliance with conditions of this order, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer determines that daily reporting is no longer necessary.
"He can refuse to provide consent to these searches. Significantly, however, his refusal comes at the price of daily reporting to his probation officer for as long as the probation officer deems necessary." (Para 41)
Analysis of the Conditions
"To put this issue in context, I begin by noting that the threat of daily reporting was not imposed as an alternative means of ensuring compliance with conditions designed to prevent the appellant from using the internet to prey upon children. It appears to me to be wholly unrelated to the community safety concerns that motivated Conditions 17 and 18. There is no evidence before us that it would do anything to ameliorate the risk that the appellant will use the internet for nefarious purposes. Rather, it is, in its effect, a retaliatory and punitive measure that appears to be designed to pressure the appellant to waive his constitutional rights." (Para 48)
"For a waiver of constitutional rights to be valid it must, among other things, be voluntary, meaning that the individual can choose one course of conduct over another, free from coercion: Goldman v. The Queen, 1979 CanLII 60 (SCC),  1 S.C.R. 976 at 1005; R. v. Reeves, 2018 SCC 56 (CanLII) at paras. 13, 49‑52. From a constitutional perspective, the problem with the conditions is that a refusal by the appellant to consent to the searches entails a significant consequence: the threat of daily reporting." (Para 49)
"I find particularly instructive on this point the reasons for judgment of Justice Doherty in R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 12 C.R. (4th) 58 (Ont. C.A.), cited with approval in R. v. Borden, 1994 CanLII 63 (SCC),  3 S.C.R. 145, and Reeves. At issue in Wills was whether the appellant’s consent to provide a breath sample to a police officer investigating a fatal accident was valid in law. In addressing that point Doherty J.A. made these observations:
69. In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that: ...
(iii) the consent was voluntary in the sense that that word is used in Goldman [ 1 S.C.R. 976 at p. 1005] and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;" (Para 50)
"Given the manner in which Conditions 17 and 18 are drawn, any consent given by the appellant pursuant to those conditions would be susceptible to an argument that because such consent was obtained through coercion (in the form of the threat of daily reporting), the alleged waiver of constitutional rights was involuntary and, thus, invalid. In my view, sentencing courts should avoid imposing terms that are likely to give rise to a violation of constitutional rights." (Para 51)
"For the foregoing reasons, I would strike out Conditions 17 and 18 in their entirety. While the conditions would likely be unobjectionable without the daily reporting proviso, no purpose would be served by striking out this part of each condition and leaving the rest. The conditions would then provide that the appellant may consent to a search, which is simply a statement of the law (see Reeves at para. 13) and not a condition that should form part of a probation order." (Para 53)