COURT FILE NO.: 17-616

DATE: 2018/11/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHRISTOPHER COLQUHOUN, ROGER MARCHAND, and WILLIAM SNEDDON

Defendants

Frances Brennan, for the Crown

John Sipos for Christopher Colquhoun

Eric Uhlmann for Roger Marchand

Amy Robern for William Sneddon

HEARD: December 11-15, 2017, and by way of further written submissions

Justice i.f. leach

Introduction

[1] By way of overview, the three accused persons in this matter, Christopher Colquhoun, Roger Marchand and William Sneddon, are jointly charged with one count of possessing a controlled substance (methamphetamine) for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act, (“the CDSA”).

[2] The charges stem from events said to have taken place in various locations here in the city of Stratford, and smaller nearby communities to the southwest of Stratford, (e.g., the village of Woodham), on or about July 20, 2016. Evidence in that regard is outlined in greater detail below. In broad terms, however, the Crown says:

• that three separate confidential informants severally provided information to members of the Stratford Police Street Crimes Unit, (“SCU”), at various times between early January of 2016 and July of 2016, relating to the alleged involvement of Mr Colquhoun, Mr Sneddon and a woman named Lorena Howse in the trafficking of methamphetamine;
• that members of the SCU carried out covert surveillance on numerous occasions, between January of 2016 and July of 2016, to determine whether or not the received confidential informant (or “C.I.”) information could be corroborated;
• that members of the SCU, in June of 2016, also applied for and obtained a warrant to track Mr Sneddon’s vehicle, by authorized attachment of an electronic tracking device to that vehicle which relayed information about its location and speed, including indications of when the vehicle was travelling outside the city of Stratford or approaching the rural residence of Ms Howse near Woodham;
• that by July 20, 2016, members of the SCU also were in possession of information from prior police investigations, carried out at various times in 2015 and 2016, relating to Mr Colquhoun, Mr Sneddon, Ms Howse, Jennifer Moriarity, (a sister of Lorena Howse), and Mr Marchand.
• that, on July 20, 2016:
  • an alert from the tracking device in the early morning hours informed members of the SCU that Mr Sneddon’s vehicle had left the city of Stratford and was approaching the rural residence of Ms Howse near Woodham;
  • a lead investigator of the SCU determined that Mr Sneddon’s vehicle would be stopped, and its occupants arrested for possession of methamphetamine, (if the occupants included Mr Colquhoun and/or Mr Sneddon), when the vehicle returned to Stratford;
  • arrangements were made by the SCU to observe the occupants of the vehicle on its return to Stratford, and to stop the vehicle and arrest its occupants if they included Mr Colquhoun and/or Mr Sneddon;
  • when the vehicle returned to Stratford and Mr Sneddon was seen to be driving it, a direction was given to stop the vehicle and arrest its occupants; and
  • at the time of the subsequent vehicle stop and arrest of its occupants, Mr Sneddon was indeed driving the vehicle, Mr Marchand was seated in the vehicle’s front passenger seat, and Mr Colquhoun was seated on a “bench” seat located towards the rear of the vehicle.
• that searches incident to arrest disclosed:
  • that Mr Marchand had 14 grams of methamphetamine on his person;
  • that a silver water bottle found on the rear bench seat, near to where Mr Colquhoun had been sitting, contained three clear bags containing what was later confirmed to be a total of 88 grams of methamphetamine; and
  • that there were three cellular phones in the vehicle;
• that the police subsequently sought and obtained warrants authorizing a search of each of the three cellular telephones;
• that text messages, photographs and contact data then were extracted from the cellular phones; and
• that a police expert, having reviewed the text messages, is of the opinion that evidence indicative of trafficking in methamphetamine was found on the cellular phones said to belong to Mr Colquhoun and Mr Sneddon respectively.

[3] The three defendants have elected to be tried by judge and jury, and at the time of this decision, that election currently remains in place. There nevertheless have been repeated indications on and off the record, (i.e., in scheduling communications exchanged between defence counsel and the Stratford trial co-ordinator), that a re-election to trial by judge alone, (with the consent of Crown counsel), is intended.

[4] In advance of that trial:

a. The three defendants, by way of an appropriate formal pretrial application, submitted that all evidence located and seized during the aforesaid searches of the defendants and the Sneddon vehicle incident to arrest was obtained by the police pursuant to alleged contravention of the defendants’ right to be free from unreasonable search and seizure, (pursuant to section 8 of the Canadian Charter of Rights and Freedoms or “the Charter”), and/or their right not to be arbitrarily detained, (pursuant to section 9 of the Charter), in circumstances where the said evidence accordingly should be excluded from evidence pursuant to s.24(2) of the Charter; and

b. The three defendants, by way of a further appropriate formal pretrial application, submitted that evidence extracted from their cellular phones was obtained by the police pursuant to alleged contravention of the defendants’ right to be free from unreasonable search and seizure, (pursuant to section 8 of the Canadian Charter of Rights and Freedoms or “the Charter”), in circumstances where the said evidence accordingly should be excluded from evidence pursuant to s.24(2) of the Charter.

[5] The Crown has brought an application of its own, asking for a determination that the content of text messages extracted from two of the seized cellular phones, (said to belong to Mr Colquhoun and Mr Sneddon respectively), be admitted into evidence despite their hearsay characteristics. On its face, however, that application indicates the Crown’s intention to have that application heard during the course of the defendants’ trial; i.e., at a time after the court has made a ruling on the defendants’ pretrial Charter applications, determining whether or not the evidence may be inadmissible for reasons other than its possible hearsay implications.

[6] This particular decision is intended to address and resolve the issues raised by the defendants’ pretrial Charter applications, before the matter proceeds further.

Procedural History

[7] Before moving on to consideration of those Charter issues, I nevertheless pause to note certain developments which caused this matter to be addressed in a manner somewhat different than that originally contemplated by the parties and the court.

[8] In particular:

• When the defendants’ pretrial Charter applications came before me on December 11, 2017, it was contemplated that the receipt of all relevant evidence and counsel oral submissions would be completed that week, (i.e., on or before December 15, 2017), within the time that had been allocated, during that Stratford trial sitting, for hearing of the applications in their entirety.
• Owing to a number of complications and delays, (including a number of instances when not all of the defendants reappeared for the scheduled resumption of hearings), it proved impossible to complete anything more than the receipt of evidence before the close of proceedings on December 15, 2017, at which time I was obliged to move on to the hearing of other scheduled matters.
• In an effort to keep the matter moving forward, it was expressly agreed by all parties that counsel thereafter would make their submissions on the defendants’ applications in writing. I accordingly set a timetable for the tendering of those written submissions. Owing to unexpected further developments, the parties subsequently agreed to extensions of certain deadlines, within that timetable, for the service of material. The final written submissions were received on or about March 15, 2018, at which time I formally reserved my decision on the applications.
• The matter was spoken to again on November 26. 2018, at the outset of the Stratford trial sittings commencing that day, for contemplated scheduling of a trial during the current sittings, if and as necessary, in the wake of my anticipated release of this decision. During that “triage scheduling court”, at the outset of the sittings, I informed counsel of my intention to dismiss the applications brought by the defendants. However, I also advised counsel that the formal release of my endorsement in that regard had been delayed temporarily by the need for further review, proof-reading and finalization of these reasons. In the result, a three day trial was scheduled to commence on December 10, 2018, on the understanding that counsel would receive my finalized endorsement during the first week of the sittings.

[9] With that explanation, I will move on to consideration of the Charter issues raised by the defendants’ applications, starting with a consideration of the evidence tendered in that regard, and my corresponding findings of fact.

[10] Before doing so, I nevertheless pause to also note the following:

a. Throughout my consideration of the defendants’ Charter applications, I am mindful that, although the Crown may have the burden of establishing certain matters, (such as the lawfulness of a warrantless arrest), it is the defendants who generally have the onus of proving, on a balance of probabilities, that there has been a constitutional infringement, and that evidence obtained by any infringement should be excluded.[^1]

b. By agreement of the parties, the evidence presented during the voir dire was to be considered in relation to both of the pretrial applications brought jointly by the three defendants to this proceeding.

c. The material filed by the defendants included a formal request for leave to cross-examine Detective Serf, the common affiant of the “Information to Obtain” (or “ITO”) documentation submitted to obtain warrants authorizing searches of cellular phones located and seized at the time of the defendants’ detention and arrest, in relation to the information contained therein. (For example, defence counsel had expressed a desire to cross-examine Detective Serf regarding the precise location of the particular cellular phones, within the vehicle in which all three defendants had been travelling, at the time the defendants were arrested. Defence counsel also wished to question Detective Serf about background to the relevant police investigation, which the officer may have known, at the time of swearing the relevant ITO documentation.) At the outset of the common voir dire hearing before me, Crown counsel indicated that, having reviewed the request and relevant evidence with Detective Serf, the Crown was consenting to the request for cross-examination of Detective Serf in that regard, subject to possible assertions of privilege in relation to any information that might help to identify confidential informants. Having reviewed the application material filed by the defendants, I was independently satisfied that leave to conduct the requested cross-examination of Detective Serf should be granted, without prejudice to the possible assertion of such confidential informant privilege.

Application evidence and findings

[11] While I will have more to say about certain aspects of the underlying application evidence later in my reasons, the following findings form the basic context of my further analysis:

• The Stratford “Street Crimes Unit” (“SCU”) is a designated unit, within the Stratford Police Service (”SPS”), tasked with the investigation of matters relating to stolen property and controlled substances in the city of Stratford. There are usually five officers in the unit. The vast majority of the unit’s time is devoted to drug-related investigations, which is its primary objective. One of the narcotics most frequently encountered by the SCU is methamphetamine. It poses, by far, the most significant narcotics-related problem within the city of Stratford.
• In the course of the voir dire held to address the applications brought by the defendants, I was presented with testimony from four members of the SCU, each of whom had substantial experience with drug-related investigations. In particular:
  • Detective Constable (or “D.C.”) Gerald Schuurman has been employed by the SPS since 2009. Since being promoted to the rank of Detective Constable in January of 2014, he has worked exclusively with the SCU.
  • Michael Weyers has been employed by the SPS since 2010. He became a member of the SCU in January of 2015, and has worked in that capacity ever since. Although he joined the SCU with the rank of Detective Constable, he was promoted to the rank of Sergeant shortly before December of 2017; i.e., long after his involvement in the investigations relating to this particular matter. Without intending any disrespect to the officer, but in order to avoid confusion and remain focused on the matters and developments leading to the current prosecution as they occurred, I intend to refer to him throughout these reasons as “D.C. Weyers”, reflecting the rank he held at the relevant time.
  • D.C. Jeff Serf has worked exclusively with the SCU since January of 2015.
  • D.C. Joshua Nahrgang also has worked exclusively with the SCU since January of 2015.
• In the course of the voir dire, I also received testimony from Constable Robert Menzies, who also works for the SPS as a uniformed officer and member of the Emergency Response Unit (“ERU”) of the SPS.
• In the course of its operations, members of the SCU frequently rely on information provided by confidential informants. In that regard:
  • Such confidential informants (or “C.I.”s), are members of the public who choose to offer information to the SCU for various reasons, including good will, a desire for monetary payment, and/or the hope of obtaining favourable consideration or treatment in relation to criminal charges they themselves may be facing; e.g., by certain charges or potential charges being withdrawn or reduced.
  • The SCU maintains a “C.I. Registry” to keep track of such individuals. In particular, when a person begins acting as a C.I. for the SCU, a separate entry or file is created in the Registry for that person, with the file containing details of the person’s name, date of birth, (but no other personal information), “handler”, (i.e., the officer assigned primary responsibility for interacting with that particular C.I.), the officer in charge of the SCU at the time the C.I. began his or her involvement with the unit, and whether or not the particular C.I. is still actively providing information to the SCU. Each C.I. also is assigned a separate and unique identification number within the Registry.
  • To promote candour and accuracy in relation to the provision of C.I. information to the SCU, members of the SCU routinely follow various practices that are individually administered, but similar in nature, to ensure that anyone offering to provide C.I. information to the SCU knows from the outset that the contemplated relationship between the C.I. and SCU will be subject to certain understandings and conditions. For example, when initially speaking with a C.I., D.C. Schuurman makes it clear that no promises will be made in relation to any consideration desired by the C.I., particularly in relation to any withdrawal or reduction of charges the C.I. may be facing, as such decisions lie outside the role and authority of the police, although D.C. Schuurman does indicate an intention to speak with Crown counsel to request favourable treatment for a C.I. in cases where information provided by the C.I. leads to the arrest or charging of other individuals. D.C. Schuurman also warns every C.I., from the outset, that no monetary payment or favourable consideration for any charges faced by the C.I. will be provided for any false information supplied by the C.I.; that the provision of demonstrably false information by the C.I. will result in a definite “firing” or termination of the C.I. relationship with the SCU, with the individual never again being permitted to act in a C.I. capacity; and that the C.I. may be charged for providing false or misleading information to the police.
  • Information provided by a particular C.I. to his or her assigned handler is recorded in a running “bio” (short for “biography”) maintained by that handler for the C.I. in question, in a “C.I. notebook” maintained by the handler, allowing the handler to cross-reference such information with the results of later developments or investigation, (e.g., surveillance observations), to check on the reliability of information the relevant C.I. has previously provided. The bio also will include indications as to whether the information provided by the C.I. led to arrests and/or seizures of property.
  • While the actual “bio” documents maintained by each handler are not circulated beyond the relevant handler, the SCU members act as a team and share such C.I. information by preparing and circulating, (to each member of the SCU), as soon as possible, typed Word documents, referred to as “confidential informant reports”, that replicate the information provided by a C.I. and recorded in the bio. Such reports also include, at the bottom, a handler’s indication of the particular C.I.’s perceived reliability. (That is not information recorded in the C.I. Registry, and otherwise must be sought from individual handlers, who nevertheless also share that reliability assessment with all other members of the SCU involved in an investigation, if information provided by the handler’s C.I. is being relied upon in the court of that investigation.) As a “confidential information report” setting out provided C.I. information is circulated, it is discussed by members of the SCU team. Once each member of the SCU has signed off on the document, (to confirm that the C.I. information therein has been received and reviewed), the confidential informant report is then destroyed. Each handler nevertheless continues to maintain an original record of the originally provided C.I. information.
  • To ensure that all members of the SCU are made aware of any C.I. who has provided demonstrably false and therefore unreliable information to the police, (with a resulting permanent termination of any further C.I. relationship with the SCU), the word “FIRED” is added, in bold red letters, (without further details), to the entry in the C.I. Registry for that particular individual. The absence of such an entry in the Registry means that the particular C.I. is not known to have provided demonstrably false information to the police.
• Prior to January of 2016, D.C. Schuurman was familiar with William Sneddon. In particular:
  • D.C. Schuurman had personal involvement with Mr Sneddon, which included having conducted a number of traffic stops involving Mr Sneddon.
  • D.C. Schuurman had read numerous police reports, describing occurrences involving Mr Sneddon, which had been maintained and made available on the “NICHE” database used internally by the SPS to keep a record of all of its police reports of occurrences.[^2]
  • D.C. Schuurman was aware, through the above involvement and records, that Mr Sneddon was involved with methamphetamine. In particular, in addition to an occurrence in 2015, in which Mr Sneddon had been arrested and found to be in possession of methamphetamine (1 gram) after a traffic stop, confidential informants had reported that Mr Sneddon was trafficking in methamphetamine.
• Prior to 2016, D.C. Schuurman also was familiar with Christopher Colquhoun. In particular:
  • The officer had personal involvement with Mr Colquhoun through a number of separate occurrences prior to D.C. Schuurman joining the SCU, (including at least one traffic stop), knew who Mr Colquhoun was, and had observed Mr Colquhoun “on the street” in Stratford.
  • D.C. Schuurman also knew that Mr Colquhoun was involved with methamphetamine, as well as other controlled substances. In particular, the officer had participated directly in an arrest of Mr Colquhoun, in or around March of 2015, when Mr Colquhoun was stopped on his return to Stratford from another community, and was found to be in possession of methamphetamine, pills and “Shatter”, (the street name for a derivative of marihuana).
• Prior to 2016, D.C. Schuurman had no prior involvement with Roger Marchand, but knew who Mr Marchand was, (including knowledge that Mr Marchand was Mr Sneddon’s son), and was able to recognize Mr Marchand on sight. D.C. Schuurman was not sure how he had acquired that general knowledge and familiarity, but was able to say that it was not information connecting Mr Marchand to any drug-dealing activity.[^3]
• In January of 2016, the SCU began an investigation, related to possible trafficking in methamphetamine, involving Mr Colquhoun and Mr Sneddon. In that regard:
  • The particular investigation was prompted by the receipt of C.I. information, and by other knowledge acquired by the SCU concerning a person from whom Mr Colquhoun and Mr Sneddon were thought to be purchasing methamphetamine.
  • In the course of the investigation, C.I. information was provided by three separate confidential informants, two of whom, (respectively identified during the course of the voir dire as “C.I. Number One” and “C.I. Number Two”), were handled by D.C. Schuurman, and one of whom, (identified during the course of the voir dire as “C.I. Number Three”), was handled by D.C. Nahrgang.
  • As far as C.I. Number One is concerned:
    • By January of 2016, D.C. Schuurman had been working with C.I. Number One, (who was entrenched in Stratford’s drug subculture and a user of methamphetamine), for over 2 years.
    • At the outset of his relationship with C.I. Number One, D.C. Schuurman had provided C.I. Number One with the detective’s standard initial relationship clarifications, confirmations and warnings outlined above.
    • By January of 2016, D.C. Schuurman considered C.I. Number One to be a reliable source of information. He or she had provided information leading to numerous seizures of controlled substances, numerous arrests, and a conviction in relation to at least one individual. In those earlier cases, (including those not resulting in convictions), the information supplied by C.I. Number One also had been corroborated by independent police investigation. In return, C.I. Number One had received consideration, in the form of favourable treatment in relation to charges he or she had been facing.
    • C.I. Number One had a criminal record. In that regard, D.C. Schuurman could not recall, at the time of testifying, whether details of that particular record included any convictions for crimes of dishonesty, such as fraud, perjury or obstruction of justice. Having said that, D.C. Schuurman was able to state that he would have checked the criminal record for such convictions, noted any that existed and taken that into assessment of whether the C.I. in question was reliable, (which would have impacted his assessment of credibility and a corresponding need to ensure “one hundred percent corroboration” of C.I. Number One’s provided information, to the best of the detective’s ability), and had concluded that C.I. Number One was indeed reliable.
    • In early January of 2016, C.I. Number One provided D.C. Schuurman with the following information:
      • that Mr Colquhoun was trafficking in methamphetamine;
      • that Mr Colquhoun obtained his methamphetamine from Lorena Howse; and
      • that Mr Colquhoun “got rides” from Mr Sneddon when he went to “pick up” methamphetamine from Ms Howse.
    • D.C. Schuurman also understood that the aforesaid information being provided by C.I. Number One had been obtained on a “first-hand” basis, as:
      • C.I. Number One also had indicated that he or she had purchased methamphetamine from each of Mr Colquhoun and Mr Sneddon in the past, including 2016;
      • C.I. Number One had personally seen both Mr Colquhoun and Mr Sneddon with methamphetamine;
      • C.I. Number One had personally attended at Mr Colquhoun’s residence at 64 East Gore Street in Stratford; and
      • C.I. Number One was indicating that the information about Mr Colquhoun trafficking in methamphetamine obtained from Ms Howse, with the assistance of rides provided by Mr Sneddon, had been provided to C.I. Number One directly by Mr Colquhoun.
    • D.C. Schuurman confirmed that C.I. Number One provided no information identifying Mr Marchand as an accomplice in the trafficking activity C.I. Number One was describing.
  • As far as C.I. Number Two is concerned:
    • By January of 2016, D.C. Schuurman also had been working with the relevant C.I., (who was also entrenched in Stratford’s drug subculture and a user of methamphetamine), for over 2 years.
    • At the outset of his relationship with C.I. Number Two, D.C. Schuurman had provided C.I. Number Two with the detective’s standard initial relationship clarifications, confirmations and warnings outlined above.
    • By January of 2016, D.C. Schuurman considered C.I. Number Two to be a reliable source of information as well. He or she similarly had provided information leading to numerous seizures of controlled substances, numerous arrests, and a conviction in relation to at least one individual. In those earlier cases, (including those not resulting in convictions), the information supplied by C.I. Number Two also had been corroborated by independent police investigation. In return, C.I. Number Two had received consideration, in the form of favourable treatment in relation to charges he or she had been facing.
    • C.I. Number Two also had a criminal record. In that regard, as with C.I. Number One, D.C. Schuurman could not recall, at the time of testifying, whether details of the particular record for C.I. Number Two included any convictions for crimes of dishonesty, such as fraud, perjury or obstruction of justice. Having said that, D.C. Schuurman once again was able to state that he would have checked the criminal record for such convictions, noted any if they existed and taken that into assessment of whether the C.I. in question was reliable, (which would have impacted his assessment of credibility and a corresponding need to ensure “one hundred percent corroboration” of C.I. Number Two’s provided information, to the best of the detective’s ability), and had concluded that C.I. Number Two was indeed reliable.
    • In early January of 2016, C.I. Number Two provided D.C. Schuurman with the following information:
      • that Mr Colquhoun resided on East Gore Street in Stratford;
      • that Mr Colquhoun trafficked in methamphetamine;
      • that Mr Colquhoun obtained his methamphetamine from Lorena Howse; and
      • that Mr Colquhoun “got rides” from Mr Sneddon in Mr Sneddon’s “grey van” when Mr Colquhoun went to “pick up” methamphetamine.
    • D.C. Schuurman also understood that the aforesaid information being provided by C.I. Number Two also had been obtained on a “first-hand” basis, as:
      • C.I. Number Two also had indicated that he or she had purchased methamphetamine from each of Mr Colquhoun and Mr Sneddon in the past, including 2016;
      • C.I. Number Two also had personally seen both Mr Colquhoun and Mr Sneddon with methamphetamine;
      • C.I. Number Two also had personally attended at Mr Colquhoun’s residence at 64 East Gore Street in Stratford; and
      • C.I. Number Two was indicating that the information about Mr Colquhoun trafficking in methamphetamine had been provided to C.I. Number Two directly by Mr Colquhoun.
    • D.C. Schuurman confirmed that C.I. Number Two provided no information identifying Mr Marchand as an accomplice in the trafficking activity C.I. Number Two was describing.
  • As far as C.I. Number Three is concerned:
    • By the time of the three defendants’ arrest in July of 2016, D.C. Nahrgang had been working with the relevant C.I., (who was also involved in Stratford’s drug subculture and a user of narcotics[^4]), for over 2 years.
    • C.I. Number Three had a criminal record, but it included no offences for dishonesty, such as perjury or obstruction of justice.
    • By July of 2016, D.C. Nahrgang considered C.I. Number Three to be a proven and reliable source of information. He or she had provided information which had been corroborated, and on which the SCU successfully had relied to arrest more than three persons for offences involving drugs and property, and to obtain more than two search warrants, in the execution of which drugs and property were located and seized.
    • In return for provided information, C.I. Number Three had received consideration, in the form of favourable treatment in relation to charges he or she had been facing.[^5]
    • During the last week of May, 2016, (on May 30 or 31, 2016), C.I. Number Three provided D.C. Nahrgang with the following information, which was said to have been based on first hand observations made by C.I. Number Three:
      • that Lorena Howse was residing on a farm property near Woodham, (without the particular street address being identified); and
      • that Lorena Howse was “back in the game” and selling methamphetamine from that farm property.[^6]
    • D.C. Nahrgang relayed the above information from C.I. Number 3 to D.C. Schuurman, who also reviewed the corresponding “confidential information report” in that regard, prepared by D.C. Nahrgang and circulated to members of the SCU.
  • It was not disputed that, over the course of the relevant investigation, no relevant C.I. information was received in relation to Mr Marchand, and D.C. Schuurman and D.C. Weyers each confirmed that, prior to the arrest effected on July 20, 2016, (described below), Mr Marchand had not become an additional target of the investigation, notwithstanding certain police observations of Mr Marchand, and the discovery of a text apparently referring to Mr Marchand, (also described below).
  • By the time D.C. Schuurman received the aforesaid information from C.I. Number One and Confidential Informant Number Two, he already was very familiar with Lorena Howse. In particular:
    • In 2014, D.C. Schuurman had read numerous C.I. reports relating to Lorena Howse, indicating her involvement in the drug subculture.
    • In the same year, (2014), an investigation into trafficking of methamphetamine was carried out, through use of an undercover officer, during which the undercover officer received information indicating that Lorena Howse was a supplier of methamphetamine. That in turn led to the undercover officer attending at the Kitchener residence of Ms Howse, where the undercover officer viewed Ms Howse with methamphetamine. It also led to the undercover officer’s negotiation of methamphetamine purchases, one of which was to be carried out at a fast food outlet in Stratford. When Ms Howse attended with another individual at the relevant location to complete that transaction, D.C. Schuurman was one of the officers who then participated directly in her arrest, at which time Ms Howse was found to have more than 100 grams of methamphetamine, (the amount of the negotiated sale), in her personal possession.
    • Between the time of his arresting Ms Howse in 2014, and his receipt of the aforesaid information from C.I. Number One and C.I. Number Two in 2016, D.C. Schuurman had continued to review reports of information, received by others, indicating that Ms Howse was continuing to traffic in methamphetamine. Indeed, it was well known that Ms Howse was a “big supplier” of methamphetamine in the cities of Kitchener and Stratford.
  • Following up on the aforesaid information received from C.I. Number One and C.I. Number Two in early January of 2016, D.C. Schuurman and other members of the SCU, (including D.C. Weyers, D.C. Nahrgang and D.C. Serf), carried out surveillance operations on or about January 19 and 28, 2016, using their usual practice, during such operations, of speaking to each other by radio to communicate their observations, notes of which were made by a designated “scribe” or central note taker.[^7] On the latter date of January 28, 2016:[^8]
    • At 7:17pm, Mr Sneddon was seen exiting 128 Perth Street, in the City of Stratford, which was known by the SCU to be a “drug house”; i.e., an address where drug users attended to purchase methamphetamine. After exiting that residence, Mr Sneddon entered a nearby van; i.e., a grey Ford Freestar van, bearing licence plate no. BYVX404.[^9] After entering the van, Mr Sneddon drove away with SCU members continuing to follow his movements.
    • Mr Sneddon then proceeded in his van to 24 Victoria Street, in the city of Stratford. The address was known by the SCU to be the personal residence of Terry Collins, a known user of methamphetamine, who also allowed the residence to be used as a “flop house”; i.e., permitting numerous persons in the Stratford drug subculture, who lacked a residence of their own, to stay and sleep at the residence for short periods of time. Drug users also were known to go there to purchase methamphetamine.
    • After stopping at 24 Victoria Street, Mr Sneddon travelled in his van to 769 Downie Street, which the SCU knew to be Mr Sneddon’s personal residence. The SCU officers were unable to make any observations of individuals while the van was at the 769 Downie Street address. However, they observed the van as it left that address, and continued to follow its movements. As they did so, Mr Colquhoun was seen to be a front seat passenger in Mr Sneddon’s van. Two females also apparently were in the van at the time.
    • The van proceeded next to a Home Hardware store in Stratford, with the SCU officers continuing to follow its movements, and the movements of Mr Sneddon and Mr Colquhoun.
    • After stopping at that Home Hardware store, the van proceeded to the parking lot of a Food Basics store in Stratford, where Mr Sneddon and Mr Colquhoun both left the vehicle. As Mr Sneddon went into the Food Basics Store, Mr Colquhoun walked to a nearby “Smoke Shop” before returning to the van and getting back inside.
    • After Mr Sneddon’s return to the van, it drove away with SCU members following, and made another stop at a “Money Mart” store in Stratford.
    • With the SCU officers following, the van then returned to Mr Sneddon’s residence at 769 Downie Street for a brief stop there. Members of the SCU once again were unable to make observations of individuals at that address, and accordingly were unable to determine, at the time, who may have exited or re-entered the van before it left the address a short time later. However, based on subsequent observations, (described below), the SCU members came to believe that the van had returned to 769 Downie Street to drop off its two female passengers.
    • After leaving 769 Downie Street again, the SCU officers continued to follow the Sneddon van as it then left the city of Stratford and proceeded towards the city of Kitchener. As the van left Stratford, the SCU members had not been able to confirm the identity of its occupants. However, based on later observations, (described below), they came to know that the van was being driven by Mr Sneddon, with Mr Colquhoun as a passenger.
    • The van was then followed by the SCU officers as it proceeded to a three story apartment building, (with central front and rear doors), located at 13 High Street in Kitchener, arriving there at approximately 9:50pm. The SCU officers knew, at the time, (from previous drug investigations and surveillance operations, during which individuals had been followed to the same address), that the relevant apartment building contained the residence of Lorena Howse.[^10]
    • After its arrival at the relevant High Street apartment building, the van, with Mr Sneddon driving, proceeded to the back of the building. Mr Colquhoun exited the vehicle and entered the apartment building through its rear door, while Mr Sneddon remained in the vehicle and drove away alone.
    • While other members of the surveillance “kept moving” to watch the front door of the residence, and to look for Mr Sneddon or his return, D.C. Nahrgang took up a position to the rear of the apartment building. He waited there in his vehicle, with the ignition off, observing the back of the apartment building, including its rear entrance, and movements within the rear parking lot where Mr Sneddon had dropped off Mr Colquhoun. During that wait, he observed Lorena Howse, (who was known to him from earlier police involvement in 2014)[^11], come out on to the balcony of the apartment unit located to the “top right” at the rear of the building, where she proceeded to smoke a cigarette for a number of minutes. D.C. Nahrgang relayed that observation to other members of the surveillance team by radio. D.C. Nahrgang also could see that there were a number of other individuals inside the relevant apartment, playing darts, but he was not able to make any identification of those other individuals.[^12]
    • Approximately 44 minutes later, Mr Sneddon drove the van back to the rear parking lot of the apartment building, and inadvertently parked his vehicle almost bumper to bumper with that of D.C. Nahrgang as the detective continued to make and relay observations to the surveillance team. Mr Sneddon then exited his vehicle and was let into the apartment building, through its rear door, by Mr Colquhoun.
    • Some sixteen minutes later[^13], (and exactly one hour after the van was first seen arriving at the apartment building), Mr Colquhoun and Mr Sneddon came out of the building, entered the van, and drove away.
    • D.C. Schuurman, D.C. Weyers and D.C. Serf each candidly acknowledged that, while Mr Colquhoun and Mr Sneddon were in the apartment building at 13 High Street in Kitchener, members of the surveillance team were unable to observe the precise unit or apartment to which either or both men may have gone, nor any drug transaction. However, based on the C.I. information he had received, (described above), D.C. Schuurman believed that Mr Colquhoun had gone to the Unit 10 residence of Ms Howse to obtain methamphetamine from her. Moreover, that belief was reinforced by D.C. Nahrgang’s indicated observation of Lorena Howse being present in the apartment building at the same time Mr Colquhoun and Mr Sneddon were there.
    • The SCU officers were not able to immediately follow or locate the van after it left 13 High Street in Kitchener, and surveillance was discontinued for the day.
• Over the course of ensuing further investigation prior to July 20, 2016, and more than five further communications with each of C.I. Number One and C.I. Number Two, (from January to July of 2016 in the case of C.I. Number One, and from January to June 2016 in the case of C.I. Number Two), D.C. Schuurman continued to receive similar information from both confidential informants about Mr Colquhoun and Mr Sneddon. During those further communications, D.C. Schuurman also was provided with the following additional C.I. information:
  • C.I. Number One indicated that Mr Colquhoun and Mr Sneddon were trafficking methamphetamine within the city of Stratford;
  • C.I. Number One also indicated that Mr Colquhoun concealed methamphetamine in a metal water container or jug;
  • C.I. Number Two indicated that, at times, Mr Colquhoun would conceal methamphetamine “inside him”, (i.e., within a body cavity);
  • at least one of the two confidential informants, (without D.C. Schuurman being able to recall which, while in the witness box), indicated that Mr Colquhoun and Mr Sneddon were trafficking in methamphetamine at the “multi-ounce” level; and
  • C.I. Number One related an incident, (described to him or her by Mr Colquhoun), wherein Mr Colquhoun and Mr Sneddon had been driving on June 14, 2016, with methamphetamine purchased that day, realized that they were under surveillance and being followed as they were returning from making the purchase, and threw the methamphetamine out the vehicle window before returning the following day to retrieve it.
• Over the same period, (i.e., between January 2016 and July 2016), members of the SCU carried out further investigation and additional surveillance, the results of which included further observations and indications of Mr Sneddon and Mr Colquhoun travelling in Mr Sneddon’s van, to and from the residence of Lorena Howse.
• Before outlining details of such further investigation and surveillance, I note that, during the course of the investigation, the SCU learned through police sources and records that, as the result of her continued involvement with controlled substances, (and methamphetamine in particular), the residence of Ms Howse changed from the aforesaid High Street address in Kitchener to a rural address located just outside the village of Woodham, to the west of Stratford. In particular:
  • A synopsis of the occurrence prepared by the Waterloo Regional Police, and reviewed by D.C. Schuurman, indicated that, during the course of a police investigation into the activities of Ms Howse, in April of 2016, she was seen trafficking methamphetamine to another person, following which a corresponding arrest and search of her person disclosed that she was in possession of more than 70 grams of methamphetamine.
  • Subsequent police execution of a search warrant, in relation to the residence of Ms Howse at Unit 10, 13 High Street, in Kitchener, disclosed no additional drugs but a considerable amount of drug paraphernalia, including numerous “dime bags” of the type used to package and distribute narcotics.
  • Following her arrest, Ms Howse secured a judicial interim release from custody, on terms that required her to reside with her surety, Barry McCurdy, at #5935 on Line 6, just outside the Village of Woodham, (“the Line 6 property”).
  • As confirmed by multiple observations of SCU members, (including D.C. Schuurman), the Line 6 property has a rural character, with an extended drive, and a house located approximately 100-150 meters from the road. Towards the back of the property, (i.e., further from the road), other buildings include a barn and a large “drive shed”.
• As noted above, during the last week of May, 2016, C.I. Number Three provided his or her handler D.C. Nahrgang with C.I. information indicating that Lorena Howse was residing on a farm near Woodham, and selling methamphetamine from that property. Through its own independent investigation and review of police record information, described above, the SCU accordingly was able to corroborate the residence information provided for Lorena Howse by C.I. Number Three.
• On June 14, 2016, (i.e., the same date as that identified in the later and independent account related by C.I. Number One, mentioned above)[^14], surveillance was carried out, in relation to Mr Colquhoun and Mr Sneddon, by an SCU team including D.C. Weyers, D.C. Serf, and Sergeant Jason Clarke, with D.C. Serf acting as a “central note taker”.[^15] Observations made during the team surveillance on that date included the following:
  • At 5:54pm, Mr Colquhoun was seen entering a van, (not that of Mr Sneddon[^16]), as a passenger and with a female, at 588 Downie Street in Stratford. That van proceeded to 64 East Gore Street in Stratford, which the SCU officers knew to be Mr Colquhoun’s personal residence.
  • At 7:59pm, Mr Sneddon’s van was then seen pulling into the “Erie Street Lot”; i.e., a large parking area located on the East Side of Erie Street, in downtown Stratford, located behind and to the West of buildings facing Wellington Street bordering the city’s “Market Square”. Mr Sneddon was seen exiting the van there, before ascending stairs to the second floor of a building located to the east of the Erie Street Lot. At that time, the SCU team decided to maintain surveillance on the van and 64 East Gore Street for the immediate future.
  • The Sneddon van remained in the Erie Street Lot for approximately 23 minutes, before two individuals, (i.e., Mr Sneddon and another individual whom the police were not able to see clearly enough to identity), entered the van before it then left the Lot with Mr Sneddon driving. At the time, police therefore knew there were at least two individuals in the van, but it was not known whether anyone else had remained in the van while it remained parked in the Erie Street Lot.
  • After it left the Erie Street Lot, the Sneddon van was followed to the “7-11 Store” on Erie Street in Stratford, where it stopped for a time. It was not known with certainty whether anyone entered or exited the van there. However, prior to the van driving away again, a male named Matt Riordan, (whom the SCU officers knew from multiple previous drug investigations and arrests to be a member of Stratford’s drug subculture[^17]), was seen on foot near the van, to the rear of the store at that location, and it was inferred that Mr Riordan had exited the Sneddon van there. A decision was made to continue surveillance on the van, rather than follow Mr Riordan.
  • After it left the 7-11 store, the van was followed to Mr Colquhoun’s known residence at 64 East Gore Street in Stratford, where its arrival was observed by the surveillance team members already stationed there. Mr Sneddon exited the van, and entered the residence.
  • At 9:56pm, the Sneddon van left Mr Colquhoun’s residence at 64 East Gore Street in Stratford, and proceeded through the Town of St Marys to the Line 6 property, with Mr Sneddon driving and Mr Colquhoun as a passenger.[^18]
  • The Sneddon van continued to be followed as it left the city of Stratford and proceeded to the Line 6 property, (which members of the surveillance team knew to be the current residence of Lorena Howse), where it arrived at approximately 10:46pm, and proceeded into the driveway or lane there to park close to the house on the property. During the van’s travel from the city of Stratford to the Line 6 property, members of the surveillance team noticed nothing unusual or erratic about the manner in which it was being driven.
  • The van then remained at the Line 6 property until 1:00am, on July 15, 2016, at which time it left and drove away.
  • Although members of the SCU team attempted to follow the van’s movements thereafter, the driver of the van thereafter appeared to engage in efforts at “counter-surveillance driving” suggesting awareness that the vehicle was being observed and followed by police; e.g., alternatively driving very quickly, (to see if other vehicles would speed up in apparent attempts to follow the van), slowing and/or stopping, (to make other vehicles pass so that they could be observed by occupants of the van), attempting to follow vehicles that had been forced to pass, driving dirt roads surrounding the same blocks or concessions repeatedly, and stopping suddenly to reverse course and come back the same way the van had just travelled. In the course of such movements by the van, members of the SCU team passed it a number of times, and saw that Mr Sneddon was driving the vehicle. In the circumstances, a decision was made to terminate further surveillance before the van returned to Stratford.
• Reviewing the observations made on June 14, 2016, D.C. Schuurman believed they provided further corroboration of the C.I. information he was receiving; i.e., that Mr Colquhoun was receiving rides from Mr Sneddon to pick up methamphetamine from Ms Howse. His inference in that regard was buttressed by his training and experience, suggesting that Mr Colquhoun and Mr Sneddon deliberately had travelled to the rural residence after dark knowing that police surveillance in such circumstances was more difficult; i.e., because such lighting conditions and the nature of rural countryside made it much harder for police to follow moving vehicles, and much easier for those being followed to conduct counter-surveillance by watching for lights of other vehicles in the same area. It was also reinforced by the information D.C. Schuurman received, from members of the SCU surveillance team, about apparent efforts at counter-surveillance driving exhibited by Mr Sneddon’s van after it left the Line 6 property in the early morning hours of June 15, 2016. (In D.C. Schuurman’s experience, those counter-surveillance driving techniques were frequently employed by those trafficking in drugs, intent on avoiding police detection of such activity.) The inferences being made by D.C. Schuurman in that regard also were supported by information received from C.I. Number One, who independently indicated to D.C. Schuurman, (as noted above), that Mr Colquhoun had told him or her directly that Mr Colquhoun realized, after picking up methamphetamine on June 14, 2016, that he and Mr Sneddon were under police surveillance, prompting him to throw the methamphetamine out of the vehicle before returning to retrieve it from the relevant location the next day.
• Because of the aforesaid difficulties in carrying out undetected surveillance of movements to and from the Line 6 property, and indications that Mr Colquhoun and Mr Sneddon were now aware of police surveillance, D.C. Schuurman applied for a “tracking warrant” in relation to Mr Sneddon’s van; i.e., judicial permission to fix an electronic tracking device on the vehicle, to follow its movements from a remote location. D.C. Schuurman did so by swearing an appropriate ITO document, and submitting it on June 22, 2016.[^19]
• On June 30, 2016, members of the SCU, including D.C. Schuurman, carried out further direct or “eyes on” surveillance in relation to Mr Colquhoun and Mr Sneddon. Observations made on that date included the following:
  • At 5:02pm, Mr Sneddon was seen driving his van on Albert Street, in the city of Stratford, and the van was followed as it proceeded to 64 Gore Street; an address D.C. Schuurman knew from C.I. and NICHE records to be the residence of Mr Colquhoun. At 5:22pm, the van left the residence, being driven by Mr Sneddon, with Mr Colquhoun as a passenger.
  • At 7:22pm, Mr Sneddon’s van was seen again at Mr Colquhoun’s Gore Street residence. Mr Colquhoun was seen exiting his residence and getting into the van, which was then followed as it made numerous short stops at a number of addresses within the city of Stratford known to be associated with the city’s drug subculture. In particular:
    • The van proceeded first to 24 Victoria Street, Stratford; i.e., the same “flop house” residence, noted above, occupied by Mr Collins, and temporarily by other transients who used drugs and purchased drugs there. On arrival at the Victoria Street address, at approximately 7:26pm, Mr Sneddon remained in the vehicle. Mr Colquhoun exited the van and entered the residence for 10 minutes, after which he exited the residence and re-entered the van, which returned to Mr Colquhoun’s residence on East Gore Street.
    • At 7:42pm, Mr Colquhoun once again was seen exiting his residence and returning to Mr Sneddon’s van, which was then followed to 5 Victoria Street, Stratford, which was another known “meth house” and “flop house” of a character similar to that of 24 Victoria Street. D.C. Schuurman in particular knew it to be a “the residence of Linda Horton-Shine and Daryl Gort, the latter of whom was known to have past charges relating to possession of a controlled substance and trafficking controlled substances to an undercover officer. The van arrived at the Victoria Street residence at approximately 7:44pm, but stayed for only a minute, during which Mr Sneddon did not leave the van. However, Mr Colquhoun did exit the vehicle briefly, and was observed interacting with an unidentified male on the porch of the residence. Mr Colquhoun then re-entered the van, which drove off.
    • The van was then followed to 769 Downie Street, Stratford, which was known to be the personal residence of Mr Sneddon. (D.C. Schuurman personally had seen Mr Sneddon at that residence in past.) However, the vehicle remained there for only 3 minutes before it drove away.
    • The van was then followed to 9 Wilson Street, which was another drug-related address known to D.C. Schuurman – including his past personal involvement in arresting two persons coming from that residence, both found to be in possession of marihuana. The van stopped at that residence for only 2 minutes before moving on again.
    • The van then proceeded to a factory located on Packham Road in the south of Stratford, where the known girlfriend of Mr Sneddon, (Danielle de la Penetere), was seen to exit the factory and enter the van.
• Based on his experience, D.C. Schuurman believed the movements observed on June 30, 2016, to be very consistent with drug trafficking; i.e., trafficking that frequently involves visits and transactions of very short duration[^20], carried out at numerous locations associated with known drug users and controlled substances, especially during evening hours and reduced lighting[^21], all to reduce the possibility of observation and detection. (While there had been no recorded observations of any “hand to hand” drug transactions, D.C. Schuurman emphasized that it frequently was very difficult to make such observations, as those dealing in narcotics rarely flaunt their drugs, and usually conceal such transactions by such methods as turning around, or leaving drugs in other items or places.) D.C. Schuurman also believed the information to be corroborative of the aforesaid C.I. information he was receiving; e.g., that Mr Colquhoun was trafficking in methamphetamine, and being assisted in that regard through provision of rides by Mr Sneddon.
• By July 6 or 7, 2016, the SCU had received judicial authorization to affix a “tracking device” on to Mr Sneddon’s vehicle, and the device had been placed on the vehicle with the assistance of the Waterloo Regional Police. In that regard:
  • Receipt and placement of the device had been delayed for a time because the ITO originally submitted by D.C. Schuurman in that regard, on June 22, 2016, had contained spelling and other errors, (e.g., inadvertent reference to C.I. Number Two rather than C.I. Number One), which initially caused the issuing justice to reject the application. However, those errors were then corrected, a corrected ITO was submitted, and the requested “tracking warrant” was issued.
  • The device was designed to remain operational 24 hours a day, going dormant only when the vehicle remained stopped in the same location for extended periods, and reactivating whenever the vehicle began moving again.
  • The device was capable of providing and depicting on a computer or cellular phone screen, in real time, the exact GPS location of the Sneddon vehicle, as well as its speed.[^22] As indicated by the testimony of D.C. Schuurman and D.C. Weyers, (and as demonstrated in a number of exhibits subsequently generated for purposes of this proceeding by D.C. Weyers), the location co-ordinates and data being generated by the device also are recorded or stored, so as to permit their later review and/or later generation of Google aerial maps with superimposed lines indicating direction of travel, as well as colour-coded line segments to indicate speed of travel.[^23] In that regard, the data superimposed on such maps can be limited to specified periods of time.
  • Moreover, with the assistance of the Waterloo Regional Police, and at the request of D.C. Schuurman, the device also had been programmed to send automatic alerts, via automated text messages, (sent to D.C. Schuurman), whenever it passed outside a set radius encompassing the municipal boundaries of Stratford, or entered a specified radius around the Line 6 property. Despite the addition of those notional “perimeter” or “fence” alert settings, the device nevertheless would continue to track the location and speed of the vehicle wherever it happened to be located, including locations within the city of Stratford.
  • Proper functioning of the device, including accurate GPS indications and operation of its notification/alert settings, effectively would be confirmed 2-3 days later, during the course of police surveillance carried out on July 9, 2016.
• On July 9, 2016, members of the SCU, (including D.C. Schuurman, D.C. Weyers and D.C. Serf, with D.C. Schuurman acting as a central note taker), were engaged in further surveillance operations. The primary and intended focus of the surveillance operations that day was Jennifer Moriarity, another individual suspected of trafficking in methamphetamine, whom the police also knew to be a sister of Lorena Howse. In the course of the day’s surveillance operations, however, D.C. Schuurman and other members of the SCU made further observations and acquired additional information relevant to the investigation of Mr Colquhoun and Mr Sneddon. In particular, observations and developments that day included the following:
  • At approximately 5:50pm, Ms Moriarity was seen leaving her residence at 259 Railway Avenue in the city of Stratford, in the company of a male later identified as Craig Somerville. In particular, Ms Moriarity was a passenger in a Grand Prix vehicle being driven by a male later identified as Craig Sommerville, who was not a person of interest to the SCU at the time.
  • Travelling in the Grand Prix vehicle, Mr Sommerville and Ms Moriarity were seen making a number of stops within the city of Stratford; i.e., at the “Bard of Avon” housing complex and a Zehr’s store.
  • With the SCU following, the Grand Prix vehicle in which Mr Somerville and Ms Moriarity were travelling then left Stratford and proceeded to the same Line 6 property where Ms Howse now was residing, and to which Mr Colquhoun and Mr Sneddon had previously travelled. The Grand Prix vehicle arrived there at 7:15pm, and proceeded up the lane or driveway of the Line 6 property to park near the buildings there.
  • At approximately 7:35pm, while the SCU surveillance team continued its efforts to watch and observe movements at the Line 6 property after Ms Moriarity’s arrival there, D.C. Schuurman received a text alert from the tracking device on Mr Sneddon’s van, indicating that the van had left the city of Stratford.
  • The van arrived at the Line 6 property approximately 30 minutes later, (i.e., at 8:05pm), with Mr Sneddon driving. Mr Sneddon also had a younger male passenger, not Mr Colquhoun, (and later confirmed to be Mr Marchand), travelling with him.[^24] The two men were observed exiting the vehicle, and thereafter interacting with other individuals seen walking about the Line 6 farm property and its buildings. At one point, Mr Marchand was seen to approach the stationary Sneddon van again, open its right front passenger door, and enter the vehicle to sit in the right front passenger seat for approximately 15-30 seconds, (without closing the vehicle’s door), before exiting the vehicle again to walk back to the property’s drive shed.[^25]
  • At approximately 8:19pm, Ms Howse, Ms Moriarity and Mr Sommerville exited the barn on the Line 6 property, with Ms Howse and Ms Moriarity seen to be conversing with each other. Mr Sommerville proceeded to the Grand Prix vehicle, while Ms Howse and Ms Moriarity briefly entered the house on the property.
  • Shortly thereafter, at 8:22pm, Ms Howse and Ms Moriarity exited the house and went into the drive shed on the property.
  • At 8:26pm, Ms Moriarity exited the drive shed, entered the Grand Prix vehicle, and left with Mr Somerville driving.[^26]
  • Travelling in the Grand Prix vehicle, Mr Somerville and Ms Moriarity then drove back towards Stratford through the Town of St Marys, with members of the SCU surveillance team following their movements. Believing there to be reasonable and probable grounds to arrest Ms Moriarity for possession of methamphetamine, when she left the Line 6 property, the SCU team had formed a plan to effect a traffic stop and arrest when the vehicle in which Ms Moriarity was travelling entered Stratford. However, that plan changed when the Grand Prix vehicle suddenly deviated from its path of travel in apparent response to the sighting of a visible but unrelated police traffic stop that had been set up on the road ahead, to check on driver sobriety.[^27] When the Grand Prix vehicle pulled into the parking lot of a large complex known as “The Pyramid Centre” in St Marys, shortly thereafter, members of the SCU decided to effect an immediate arrest as it seemed that could be done in safety. Members of the SCU therefore moved in immediately to prevent further movement of the vehicle, and arrest its occupants. A search performed incident to arrest revealed that Ms Moriarity was in possession of approximately one ounce (or 28grams) of methamphetamine and additional narcotics; i.e., 20 white pills later confirmed to be “Percocet” or oxycodone.
  • In the course of searches performed incident to the arrest of Ms Moriarity, D.C. Weyers, (one of the SCU members immediately participating in that arrest), also located and seized a cellular phone, which he found on the passenger seat where Ms Moriarity had been sitting. In an effort to confirm ownership of the phone, D.C. Weyers opened it and observed a visible text message that had been sent by Ms Moriarity to her sister Ms Howse, saying “Tell Billy and Roger police outside of St Marys”. In that regard:
    • D.C. Weyers recorded the precise wording of the text message in his personal notes. He thought the message significant because it confirmed that the phone belonged to Ms Moriarity, and that Ms Moriarity had been trying to communicate with her sister. He also thought the only inference from the message was that Ms Moriarity was intent on having “Billy and Roger” avoid police by going around the Town of St Marys.
    • D.C. Weyers also drew the immediate reference that “Billy” referred to William Sneddon, (who had been observed at the Line 6 property), and that “Roger” referred to Mr Marchand, whom D.C. Weyers knew to be Mr Sneddon’s son; i.e., making the further immediate inference that Mr Sneddon’s “young male passenger”, (also observed at the Line 6 property), had been Mr Marchand.[^28]
• Based on the aforesaid information and observations gathered on July 9, 2016, D.C. Schuurman drew a number of inferences. In particular:
  • The tracking device installed on Mr Sneddon’s van appeared to be functioning properly, as it accurately indicated the location of the van, (confirmed by the visual surveillance operations), and had sent a verified text notification that the van had left the municipal boundaries of the city of Stratford.
  • There had been further apparent corroboration of C.I. information that Ms Howse was supplying methamphetamine, (as well as C.I. Number Three’s information that Ms Howse was supplying methamphetamine again, albeit now from a farm near Woodham), as her sister Ms Moriarity was found in possession of substantial quantities of that narcotic shortly after leaving that rural residence of Ms Howse.
  • There appeared to have been further corroboration of C.I. information that Mr Sneddon was travelling in his van to and from the location of Ms Howse to assist in the transportation and trafficking of methamphetamine. In particular:
    • The observed movements of Mr Sneddon and the vehicle, and its arrival at the rural residence of Ms Howse, confirmed such travel.
    • Mr Sneddon and his “younger male passenger” had visited the Line 6 property at the same time as Ms Moriarity. The arrest and search of Ms Moriarity after she left the property seemed to confirm that Ms Moriarity had attended the Line 6 property for the purpose of obtaining a substantial quantity of methamphetamine from Ms Howse, in turn suggesting that Mr Sneddon and his companion had attended at the property for the same purpose.
    • To D.C. Schuurman, the visible text message sent by Ms Moriarity to her sister Ms Howse seemed an apparent attempt to warn “Bill and Roger”, indirectly, to avoid travel through St Marys on their way back to Stratford, to avoid the possibility of police involvement and detection – which in turn suggested that “Bill and Roger”, like Ms Moriarity, might be involved in similar illicit activity. Moreover, as noted above, from the observations made that evening, (i.e., of William Sneddon arriving at the Line 6 property and residence of Ms Howse, with a “younger male passenger”), and D.C. Schuurman’s knowledge of Roger Marchand, (whom the detective also knew to be the son of William or “Bill” Sneddon), D.C. Schuurman immediately inferred, upon being informed of the relevant text message, that the warning therein to “Bill and Roger” had been intended for Mr Sneddon and his son Mr Marchand.[^29]
• Between July 9, 2016, and July 20, 2016, D.C. Schuurman continued to receive text alerts from the tracking device on Mr Sneddon’s vehicle. In particular, on at least four separate occasions during that period,[^30] the device sent an alert indicating that Mr Sneddon’s vehicle had left the city of Stratford, following which D.C. Schuurman was able to review the vehicle’s movements, and observe that it had travelled to and from the Line 6 property and Woodham residence of Ms Howse. However, the SCU was not able to co-ordinate and carry out timely visual surveillance on those four occasions.
• By July 20, 2016, D.C. Schuurman felt, based on his prior knowledge of the parties involved, the totality of the entire investigation to date described above, and team discussions with other members of the SCU, (with D.C. Schuurman in the role as lead investigator), that he had formed reasonable and probable grounds to believe that, following the next discovered departure of Mr Colquhoun and/or Mr Sneddon from the Line 6 property, they and any other occupant of their vehicle would be in possession of methamphetamine, permitting D.C. Schuurman to direct their lawful arrest on that charge at that time. Without limiting the generality of the foregoing, considerations factoring into that formation of reasonable and probable grounds, in the mind of D.C. Schuurman, included the following:
  • his knowledge of and involvement in the 2014 investigation and arrest of Lorena Howse for trafficking in methamphetamine;
  • his direct involvement in the 2015 arrest of Mr Colquhoun, when Mr Colquhoun was found in possession of various controlled substances, including methamphetamine;
  • his knowledge of Mr Sneddon similarly having been arrested and found in possession of methamphetamine, in 2015;
  • the C.I. information provided to him by C.I. Number One and C.I. Number Two, indicating that Mr Colquhoun was trafficking methamphetamine within the city of Stratford, and being assisted in that trafficking activity through the provision of van rides from Mr Sneddon, including rides to obtain methamphetamine from Ms Howse;
  • the C.I. information provided to D.C. Nahrgang by C.I. Number Three, and relayed by D.C. Nahrgang to D.C. Schuurman, that Lorena Howse was selling methamphetamine from her residence at a farm near Woodham;
  • his knowledge of the further arrest of Ms Howse by the Waterloo Regional Police in April of 2016, at which time she was found to be in possession of a substantial quantity of methamphetamine, and a warranted search of her High Street residence in Kitchener revealed drug paraphernalia and evidence consistent with trafficking;
  • surveillance observations appearing to corroborate information supplied by C.I. Number One and C.I. Number Two, including:
    • observations made on January 28, 2016, of Mr Sneddon driving Mr Colquhoun to the residence of Ms Howse in Kitchener;
    • observations made on June 14, 2016, of Mr Sneddon driving Mr Colquhoun to the new Line 6 property residence of Ms Howse in Woodham, and thereafter engaging in apparent counter-surveillance driving indicative of an awareness of police surveillance;
    • observations made on June 30, 2016, of Mr Sneddon driving Mr Colquhoun at night to various locations within the city of Stratford known to be associated with drug users and controlled substances, and making very short visits to each, all consistent with and indicative of drug trafficking based on D.C. Schuurman’s training and experience;
    • observations made on July 9, 2016, of Mr Sneddon driving to the Line 6 property residence of Ms Howse, (apparently in the company of his son Mr Marchand), and attending there at the same time as Ms Howse and Ms Moriarity;
  • the arrest of Ms Moriarity following her departure from visiting Ms Howse at the Line 6 property, (the new residence of Ms Howse), at which time Ms Moriarity was found to be in possession of a substantial quantity of methamphetamine;
• Events and developments on Wednesday, July 20, 2016, included the following:
  • Early that morning, D.C. Schuurman confirmed, during a team meeting of SCU members, (including D.C. Schuurman, D.C. Weyers, D.C. Serf, D.C. Nahrgang, and Sergeant Clarke[^31]), his aforesaid determination that he had reasonable and probable grounds to believe that Mr Colquhoun and/or Mr Sneddon would be in possession of methamphetamine the next time they were discovered leaving the Line 6 property, and his intention to direct their arrest on that charge after they had left the property if their identity or identities could be confirmed; i.e., if Mr Colquhoun and/or Mr Sneddon were seen in Mr Sneddon’s van after it left the Line 6 property. In such circumstances, all other occupants of the van travelling with Mr Colquhoun and/or Mr Sneddon were also to be arrested on that same charge. However, if neither Mr Colquhoun nor Mr Sneddon were observed in the van after it left the Line 6 property, it would not be stopped.[^32]
  • At approximately 3:10am, the tracking device on Mr Sneddon’s van sent a text alert indicating that the vehicle was approaching the Line 6 property.[^33]
  • On receiving that text, D.C. Schuurman notified other members of the SCU, (including D.C. Weyers, D.C. Serf, D.C. Nahrgang and Sergeant Clarke), advised them of the tracking device alert, and requested their assistance in carrying out further limited surveillance, (i.e., to identify the van’s occupants), and a traffic stop and arrest if warranted in the circumstances. In the result, a total of five SCU members each travelling in separate unmarked police vehicles, and one uniformed officer of the SPS travelling in a marked police cruiser, (i.e., Constable Menzies),[^34] initially were called upon to participate in the operation; i.e., an operation contemplating a possible traffic stop of the Sneddon van and the arrest of its occupants.[^35]
  • The movements of the van, as relayed by the tracking device, thereafter were monitored continuously by D.C. Weyers until the van returned to Stratford, initially on a computer screen in the office of D.C. Weyers, and subsequently on his phone while in his SCU vehicle.[^36] In person and then via radio as required, D.C. Weyers provided a running verbal commentary in that regard to the other officers participating in the operation, describing his observations of the information being provided and relayed by the tracking device. Initially, other members of the SCU team, (including D.C. Schuurman but not D.C. Serf), also watched the tracking device information being displayed on the computer screen in the office of D.C. Weyers. From time to time thereafter, D.C. Schuurman also directly monitored the depicted movements of the Sneddon vehicle.
  • Prior to the return of Mr Sneddon’s van to Stratford shortly before 6:10am that day, (in the manner described below), the police would rely exclusively on the information being generated by the tracking device to follow the van’s movements; i.e., without any visual observations to supplement that information.
  • In the manner described above, D.C. Weyers nevertheless was able to remotely observe and monitor movement of Mr Sneddon’s van, and advise other members of the SCU how and when the van had travelled from Stratford to the Line 6 property and residence of Lorena House. During the voir dire, confirmation of the precise route taken by the van on its way from Stratford to the Line 6 property, between the hours of 2:40am and 3:16am, and its varying rates of speed along the way, was provided by a Google aerial photo of the relevant area, bearing a superimposed line of travel starting on streets within Stratford, and ending at the Line 6 property. In the manner noted above, that recorded line of travel was composed of different coloured segments, indicating different rates of speed. The recorded data indicates that, between Stratford and the Line 6 property, the Sneddon van never left the roadway and, apart from slowing occasionally to make turns, and coming to a brief stop to make a turn onto Line 6 at an intersection in Kirkton, continued its travel to the Line 6 property without any interruptions or erratic driving patterns. In particular, while occasionally accelerating to speeds of 120kph, the van generally adhered to the generally applicable speed limit of 80kph.
  • As confirmed by information provided by the tracking device, on arrival at the Line 6 property Mr Sneddon’s van entered the drive and eventually stopped, at 3:16am, in an area near the rear of the house on the property, where the vehicle then remained without further movement until 5:35am. The resting location of the vehicle was depicted and confirmed by another aerial photograph generated by D.C. Weyers, with superimposed “red” markings indicating and confirming that the vehicle was stopped in that vicinity for the aforesaid period of time. As the trilateration of GPS tracking systems attempts to provide constant updates on the precise location of an objection, but is “only” capable of pinpointing locations within a certain number of feet from a tracked vehicle’s precise location, a “close up” of the relevant resting position data over time, (i.e., superimposed on a “close up” aerial photo of a very specific area), produces a “scribble” effect, through the system’s joining of continuous data read out of what otherwise would be successive red dots, which nevertheless collectively indicate and confirm a continuous “stopped” position of the tracked vehicle during the relevant period. The relevant exhibit prepared by D.C. Weyers depicts no movement of the Sneddon van to and from the Sneddon property only because the exhibit was created to depict the tracking data, superimposed on a photo of the Line 6 property, during the times when the device indicated the van was stopped there. Expansion of the time period depicted and superimposed on the relevant “close up” photo of the Line 6 property would have shown the van’s movements during arrival and departure vis-à-vis the Line 6 property.[^37]
  • Upon leaving the Line 6 property at 5:35am, the Sneddon van’s direction of travel and speed once again were continuously monitored and described verbally by D.C. Weyers to other officers, including D.C. Schuurman.[^38] As the van made its way back to Stratford, members of the SCU, including D.C. Weyers and D.C. Schuurman, noted particular deviations in its direction of travel, and peculiar/erratic changes in its movements and speed not exhibited during its travel from Stratford to the Line 6 property. For example:
    • it took a different route of travel from the Line 6 property on its return to Stratford than it had taken on its journey from Stratford to the line 6 property;
    • it stopped where there were no stop signs, (after passing an intersection in the village of Woodham);
    • after travelling through the village of Kirkton, it travelled at the speed limit for a short time but then accelerated to speeds greater than 164kph, and held such high speeds for a time before then decelerating to resume travel at or near the applicable speed limit of 80kph;[^39]
    • it frequently slowed down below applicable speed limits for no apparent reason; and
    • upon reaching the village of Fullerton, it turned off the road to drive slowly and completely around a municipal yard and building, (i.e., the “Fullerton Township Garage”), and stopping briefly behind the building, before leaving that property and turning back onto the road to continue its journey to Stratford.
  • Based on their training and experience, D.C. Weyers and D.C. Schuurman both believed that the erratic vehicle movements described in the preceding sub-paragraph, (all of which were confirmed by a number of further Google aerial photos with a superimposed line of travel with colourized segments indicating the van’s movements, including direction of travel and various rates of speed), were consistent with the vehicle’s operator engaging in counter-surveillance driving, after leaving the Line 6 property, to avoid being observed or followed; e.g., slowing or stopping to see if other vehicles would do the same or go past, speeding up to see if other vehicles would attempt to keep up in order to follow or “tail” the van[^40], and pulling off the roadway to see if other vehicles would do the same and/or to view following vehicles as they went by. Given such counter-surveillance efforts, D.C. Weyers and D.C. Schuurman inferred that the vehicle’s driver was trying to evade police detection, which in turn led to a further inference that the vehicle’s occupants were in possession of a controlled substance obtained through their attendance at the Line 6 property and residence of Lorena Howse.[^41] In the view of D.C. Schuurman, that reinforced what he already believed to be reasonable and probable grounds for stopping the vehicle and arresting its occupants upon its return to Stratford, if Mr Sneddon and/or Mr Colquhoun were seen to be inside it
  • In the circumstances, D.C. Schuurman had directed members of the SCU to set up further surveillance on the southern outskirts of Stratford, (i.e., along the possible and anticipated paths of the van’s travel back into the city), in order to observe and thereby confirm who was in the vehicle. Constable Menzies also was directed to wait in his cruiser near the south end of the city; i.e., at a fast food restaurant near the intersection of Erie Street and Lorne Avenue. Again, D.C. Schuurman was not yet sure who was in the Sneddon vehicle,[^42] and he did not intend to direct a traffic stop of the vehicle, and the arrest of its occupants, unless he received confirmation that Mr Sneddon and/or Colquhoun were inside.[^43] He, the other members of the SCU, and Constable Menzies therefore positioned themselves and their respective vehicles near the outskirts of Stratford to await the arrival of the Sneddon van, whose progress and movements continued to be monitored by D.C. Weyers and D.C. Schuurman. In that regard, D.C. Nahrgang in particular positioned himself and his unmarked vehicle in the parking lot of a car dealership on the east side of Erie Street, (also known as Highway 7/8 in the relevant area), where that road entered the City of Stratford from the south; i.e., a short distance from Erie Street’s intersection with Lorne Avenue to the north.
  • Shortly before 6:10am, the Sneddon van entered Stratford and passed “right by” D.C. Nahrgang, who observed clearly that Mr Sneddon was driving the vehicle. At the time, D.C. Nahrgang also saw that there were two other individuals in the van. However:
    • While D.C. Nahrgang thought the person seated in the front passenger seat of the van was Mr Marchand, he was not sure about that. In particular, although D.C. Nahrgang had had prior dealings with Mr Marchand on a number of occasions, while still a uniformed officer, he was “not 100 percent” sure of his identification of Mr Marchand on that particular occasion, and therefore did not want to relay a possible false identification in that regard to other SCU members.
    • D.C. Nahrgang could only see the silhouette of the third person, sitting in the rear seat area at the back of the van, and therefore was unable to tell who it was as the van drove by. Nor was D.C. Nahrgang able to see whether the individual was seated to the left, middle or right of the van’s rear seat area as the van went past him.
  • As D.C. Nahrgang nevertheless was sure that Mr Sneddon was driving the van, he immediately relayed that information to the other officers, including D.C. Schuurman, via radio. When D.C. Schuurman received that final additional information, he indicated over the radio that he had made a decision there were reasonable and probable grounds to stop the Sneddon van and arrest its occupants[^44], and gave a direction for that to happen.[^45] As emphasized by D.C. Weyers, the team of officers participating in the traffic stop and arrest felt it important to stop the van and arrest its occupants before it reached any residence, in order to prevent possible disposition of the controlled substance thought to be inside.
  • Approximately one minute later, at 6:10am, uniformed officer Menzies, in his marked cruiser, pulled behind the Sneddon van, as it was travelling north on Erie Street, while other SCU vehicles also approached. Shortly after the Sneddon van turned east onto Lorne Avenue, Constable Menzies activated the lights on his cruiser and initiated the traffic stop as the van approached the intersection of Lorne Avenue and Railway Street.
  • When the Sneddon vehicle came to a stop, with the marked cruiser directly behind it, it was quickly surrounded by other vehicles driven by members of the SCU. In particular, D.C. Serf pulled his vehicle to a stop immediately in front of the Sneddon van, while D.C. Schuurman pulled up next to the van’s driver side door. In total, at least seven police vehicles, (i.e., the marked cruiser driven by Constable Menzies, five unmarked police vehicles driven by members of the SCU team, and another police vehicle driven by Constable Laura Brown)[^46], progressively were involved in the traffic stop and ensuing arrest, effectively closing the eastbound lanes of Lorne Avenue; i.e., a major traffic artery in Stratford used by workers travelling to and from factories located in the south end of the city, which accordingly was very busy at that particular hour on a weekday morning. Traffic in the Westbound lanes was also travelling very slowly past the scene, and backing up considerably.
  • The course of very dynamic and quickly unfolding events immediately following the Sneddon vehicle and surrounding police vehicles coming to a stop was described to me from the simultaneous but various perspectives of officers involved in those events, as described below. Each officer understandably was focused on the role he was carrying out in the course of those dynamic events[^47], and therefore not always able to make complete and detailed observations of what was happening elsewhere at the scene. However, unless I indicate otherwise, (e.g., by raising, addressing and resolving apparent conflicts in the evidence), it seemed to me there generally was no significant conflict in those various descriptions, and I accept them to be accurate. With that in mind, my findings of fact regarding those simultaneous unfolding events, nevertheless outlined from the perspective of those various participating officers and witnesses, include the following:
    • D.C. Schuurman exited his vehicles and approached the driver’s door of the Sneddon van. In that regard:
      • He did so quickly, in an effort to prevent any possible escape from the vehicle or destruction of evidence, and arrived at the driver’s door of the vehicle at approximately the same time as D.C. Serf.
      • Looking inside the van, D.C Schuurman could see that, while it apparently had been designed for three rows of seating, (i.e., two separated bucket seats for the driver and a front seat passenger in the first or front row, space for separated seats or a “bench” seat in a second or middle row, and a bench seat in the third or rear row), the seats or bench seat in the middle row had been removed and were missing, with a BMX or other form of bicycle in their place, lying on its side. The driver’s seat was occupied by Mr Sneddon and the front passenger seat was occupied by Mr Marchand[^48], while Mr Colquhoun was seated on the bench seat at the rear of the vehicle.
      • When the driver’s door opened, D.C. Schuurman saw D.C. Serf arrest Mr Sneddon and remove him from the van[^49], with D.C. Schuurman then assisting D.C. Serf by searching Mr Sneddon incident to arrest; e.g., for evidence of the offence, weapons or means of escape.
      • In the course of searching Mr Sneddon incident to arrest, D.C. Schuurman removed and seized a ballcap Mr Sneddon had been wearing, as well as cash from the right front pocket of Mr Sneddon’s trousers. D.C. Schuurman did not know the amount of cash found and seized from Mr Sneddon, (as he has a practice of not attempting to count cash at a roadside given wind and traffic concerns), but he placed the cash in Mr Sneddon’s ball cap before handing the seized hat and currency to D.C. Serf.[^50] Those were all the items D.C. Schuurman found in the personal possession of Mr Sneddon. In particular, D.C. Schuurman did not find a cellular phone on Mr Sneddon’s person.[^51]
      • D.C. Schuurman had no dealings with Mr Marchand or Mr Colquhoun at the scene of the traffic stop, and seized no property from either. Nor did D.C. Schuurman search the Sneddon van after its occupants were arrested, or seize anything from its driver’s seat following Mr Sneddon’s arrest. Immediately after assisting in the arrest and search of Mr Sneddon, and turning custody of Mr Sneddon over to D.C. Serf, D.C. Schuurman left the scene.
    • D.C. Serf exited his vehicle and, as noted above, also approached the driver’s side door of the van. In that regard:
      • As noted above, he arrived at the driver’s door of the vehicle at approximately the same time as D.C. Schuurman.
      • Looking inside the van, D.C Serf also could see that its driver’s seat was occupied by Mr Sneddon, that the front passenger seat was occupied by Mr Marchand, and that Mr Colquhoun was seated in the “centre” seat of a three seat bench at the rear of the vehicle.[^52]
      • When the door of the van was opened, D.C. Serf told Mr Sneddon he was under arrest, and removed Mr Sneddon from the vehicle. When Mr Sneddon stood up, D.C. Serf was able to see and notice, (approximately 20-30 seconds later), that a cellular phone had been left on the driver’s seat of the van – although he admittedly had not seen Mr Sneddon place it there.
      • D.C. Serf provided Mr Sneddon with a caution, and advised Mr Sneddon of his rights to counsel.
      • Following the aforesaid search of Mr Sneddon incident to arrest performed by D.C. Schuurman, (with D.C. Schuurman seizing certain items from Mr Sneddon’s person and D.C. Serf seizing nothing in that regard)[^53], D.C. Serf turned custody of Mr Sneddon over to a uniformed officer for transport back to the Stratford police station.
      • After all three defendants had been arrested and removed from the van, D.C. Serf thereafter remained at the scene to conduct a cursory search of the vehicle and make arrangements for its transportation back to the garage at the Stratford Police headquarters, in the manner described below.
    • D.C. Weyers exited his vehicle and approached the passenger side of the van. In that regard:
      • D.C. Weyers also approached the van quickly, in an effort to ensure that there would be no efforts to discard anything inside that might be relevant to the investigation.
      • D.C. Weyers also immediately observed that Mr Sneddon was in the van’s driver’s seat, and that Mr Marchand was in its front passenger seat.
      • Upon trying to open the van’s right front passenger door, D.C. Weyers found that it was locked. Through the closed windows, D.C. Weyers gave instructions for the van’s doors to be unlocked. There was a delay, of less than one minute following officers approaching the van on foot, before that happened.
      • Before D.C. Weyers could then remove Mr Marchand from the van, he saw D.C. Serf remove Mr Sneddon from the driver’s seat of the vehicle. At that point, the previously stopped van began to move forward again, as Mr Sneddon had left the vehicle’s transmission in its “Drive” setting, and there accordingly was nothing to stop the van from moving again once Mr Sneddon’s foot was removed from its brake. From his position just outside the open front passenger door, D.C. Weyers therefore immediately leaned and reached inside the vehicle, across the front passenger seat where Mr Marchand was still seated, to change the van’s transmission setting from “Drive” to “Park”. In the meantime, the vehicle had moved forward 1-2 feet.[^54]
      • Before removing Mr Marchand from the front passenger seat of the van, D.C. Weyers advised Mr Marchand that he was a police officer and informed Mr Marchand that he was under arrest.[^55]
      • In his efforts to remove Mr Marchand from the van, D.C. Weyers then encountered what he described as “a little resistance” from Mr Marchand; i.e., with Mr Marchand attempting to pull himself back into the van, and the brief ensuing struggle causing both D.C. Weyers and Mr Marchand to wind up “on the ground” together, at which point D.C. Weyers succeeded in cuffing Mr Marchand to the rear.
      • While Mr Marchand was still seated in the front passenger seat, or shortly after Mr Marchand had been removed from the vehicle and was on the ground with D.C. Weyers, D.C. Weyers also informed him of the reason for his arrest.[^56]
      • After Mr Marchand had been cuffed and secured on the ground, D.C. Weyers looked up and around briefly, for a matter of seconds, to see if any other officers were in need of immediate assistance. In doing so, he saw that the van had no “middle” seats, and that Mr Colquhoun was still seated on the bench seat towards the rear of the van. At that time, Mr Colquhoun was seated “right in the middle” of that rear bench seat.
      • However, once D.C. Weyers then saw and was sure that another officer was dealing with Mr Colquhoun, D.C. Weyers turned his attention to Mr Marchand again, providing a standard police “caution”, and advising Mr Marchand of his rights to counsel. Mr Marchand responded that he wanted to speak to counsel, and provided a specific lawyer’s name in that regard.
      • Following administration of the above caution and rights to counsel, D.C. Weyers proceeded to conduct a search incident to arrest in relation to Mr Marchand, for reasons of safety, (e.g., looking for any objects that might hurt Mr Marchand or others), and to locate evidence such as drugs relating to the charged offence. That search began with a cursory search of the area of Mr Marchand’s hands, (by that time cuffed to his rear), followed by a quick “pat down” search, which was followed by a search of Mr Marchand’s pockets. In Mr Marchand’s front left trouser pocket, D.C. Weyers discovered a red plastic cylindrical container, (approximately 3-4 inches long and 1-1.5 inches in diameter, with a hinged top, and originally intended – according to its markings – as a holder for “M&M” candy), with 14 undivided grams of marihuana and some “rolling papers” inside. In Mr Marchand’s front right trouser pocket, D.C. Weyers discovered various other items; i.e., cigarettes, a lighter and a small “dime bag”[^57] with what appeared, (based on the experience of D.C. Weyers), to be methamphetamine residue. No other items were found on Mr Marchand’s person during that search incident to arrest by D.C. Weyers.
      • After performing that search incident to arrest, D.C. Weyers then turned Mr Marchand over to the custody of Constable Browne, who also had arrived on scene by that point. In doing so, D.C. Weyers informed Constable Brown that Mr Marchand was under arrest for possession of a controlled substance, and that Mr Marchand wanted to speak with the lawyer he had identified; i.e., in an effort to ensure that Mr Marchand would be provided with that opportunity once he had been transported back to the Stratford police station.
      • After turning custody of Mr Marchand over to Constable Brown, the ongoing dynamics of the situation effectively prevented D.C. Weyers from taking immediate steps to turn over the items he had discovered and seized from Mr Marchand, (during the aforesaid search incident to arrest), directly to D.C. Serf, (the designated exhibit officer for the operation), as D.C. Serf was still engaged in the arrest of Mr Sneddon.[^58] D.C. Weyers therefore took the items he had seized from Mr Marchand back towards the front passenger seat of the van, where Mr Marchand had been arrested. D.C. Weyers did so because he wanted to place the items on the seat where Mr Marchand had been located, in an effort to help make clear to D.C. Serf, (in carrying out his required duties as the designated exhibits officer), that the items had been seized from Mr Marchand, and therefore the location of where the items had been when the van was stopped. When D.C. Weyers approached the front passenger seat, (and before placing the items he had discovered and seized from Mr Marchand during the search incident to arrest on that seat of the van), D.C. Weyers noted the presence of a cellular phone on that front passenger seat. D.C. Weyers did nothing in relation to that cellular phone, (e.g., by touching or moving it), but placed the other items he had found on Mr Marchand’s person beside the cellular phone on that front passenger seat as well.[^59]
      • As soon as D.C. Serf had finished securing Mr Sneddon, D.C. Weyers spoke with D.C. Serf to indicate in detail the items he had found on Mr Marchand’s person, (i.e., the aforesaid red container holding marihuana, the cigarettes, lighter and dime bag with apparent methamphetamine residue), and that he had placed them on the right front passenger seat where Mr Marchand had been located at the time of the traffic stop. D.C. Weyers could not recall with certainty whether or not he made mention, during that discussion with D.C. Serf, of the cellular phone D.C. Weyers had seen on the front passenger seat of the van before D.C. Weyers placed the other items there as well. D.C. Weyers candidly acknowledged that he may have assumed that D.C. Weyers would have realized that by the process of elimination; i.e., insofar as the cellular phone was not included in the verbal list indicating the items D.C. Weyers had removed from Mr Marchand’s person and placed on the front passenger seat of the van.
      • Apart from the actions noted above, (i.e., leaning or reaching into the van through its front passenger seat to put the vehicle’s transmission into “Park”, remove Mr Marchand from the van, and place the items found on Mr Marchand’s person onto the front passenger seat of the van, D.C. Weyers did not go inside the van or carry out any search of its contents.
      • D.C. Weyers remained at the scene only until all three defendants had been arrested and removed from that location. While at the scene, D.C. Weyers:
        • had no involvement with either Mr Sneddon nor Mr Colquhoun, apart from making the brief observations noted above of Mr Sneddon and Mr Colquhoun during the traffic stop and arrest procedures;
        • did not see any officer commence any search of the van; and
        • took no part in any decision to remove the van from the scene.
      • Once all three defendants had been arrested and removed from the scene, D.C. Weyers immediately excused himself and returned to the police station, to ensure that all three defendants had been given the opportunity to speak with counsel if/as desired, and to thereafter speak to Mr Colquhoun about contemplated bail hearing arrangements.
    • Constable Menzies exited his marked cruiser and approached the passenger side of the van. In that regard:
      • As Constable Menzies himself repeatedly emphasized in his testimony, he was focused primarily and intently on officer safety and “securing bodies and taking them into custody”; i.e., on safely arresting and securing occupants inside the vehicle. He admittedly had no particular interest in preserving or making observations of evidence that might be relevant to an investigation about which he knew very little, (apart from the fact that it was drug-related), and in respect of which he anticipated little future involvement. As he noted, his approach in that regard, to such a very dynamic situation, (with numerous officers yelling and giving directions to occupants of the van), was very similar to the approach he routinely adopted when safely securing properties in his other capacity as a member of ERU. In particular, he believed it was his role to help secure the scene and assist in arresting occupants of the vehicle to take them into custody, and that it would be the role of the SCU to then carry out searches needed to locate and document evidence relevant to their investigation. He also emphasized that he “didn’t know what he was getting into”, but felt the scene was inherently dangerous as he knew it involved drugs and, in his experience, “with that often comes weapons”.
      • As Constable Menzies approached the right side of the van, he generally was conscious of SCU officers already having reached the driver’s door and right front passenger door of the vehicle, although he admittedly was not focused on who those officers were. Constable Menzies therefore focused on the sliding door on the right/passenger side of the van, and a male, (whom Constable Menzies did not know or recognize at the time but later learned was Mr Colquhoun)[^60], sitting inside on the van’s rear passenger seat. In that regard, Mr Colquhoun was the first occupant Constable Menzies saw as he approached the van.
      • Before that sliding door on the right/passenger side of the van was opened, and consistent with his concentration on officer safety and securing the scene, Constable Menzies focused his initial attention, looking through the side windows of the van, on Mr Colquhoun’s hands. In doing so, Constable Menzies saw that Mr Colquhoun was holding something in his hand.
      • Constable Menzies then opened the sliding door on the right/passenger side of the vehicle, and ordered him out of the vehicle. Mr Colquhoun was clearly “not happy with the situation”, and initially demonstrated reluctance to exit the van. By that point, however, Constable Menzies could see that Mr Colquhoun “got some help exiting the vehicle” from another one of the attending officers, who had entered or was reaching into the van and its rear seat area through the by-then-opened “hatch” door at the rear of the van.
      • As Mr Colquhoun then reluctantly did as he was told, and was getting out of the van, Constable Menzies saw him “kind of throw” something, which Mr Colquhoun “had been holding in his hands”, on to the rear seat of the van. Although a subject of considerable dispute in the proceedings before me, I am satisfied, having regard to all the evidence before me, that the object was a cellular phone, that Constable Menzies recognized it as such at the time, but that Constable Menzies also subsequently came to forget what the object had been by the time of the hearing.[^61]
      • When Mr Colquhoun exited the van, he came to Constable Menzies, who directed him onto the ground. At that point, Constable Menzies advised Mr Colquhoun that he was under arrest for possession of a controlled substance. Constable Menzies also then carried out a “quick search” of Mr Colquhoun’s person, incident to arrest, and found that Mr Colquhoun “didn’t have any property on him”.
      • Constable Menzies then raised Mr Colquhoun to his feet and directed him to the officer’s marked cruiser, (still located immediately behind the van), before placing Mr Colquhoun in the rear of that cruiser. Once inside the vehicle, Mr Colquhoun was advised of his rights and provided with a standard caution by Constable Menzies. Mr Colquhoun responded by indicating that he understood.
      • Constable Menzies admitted that his recollections of involvement in the operation thereafter were somewhat limited, and that he was “kind of vague on that”. He knew that he had transported Mr Colquhoun back to police headquarters. However, he could not really recall discussions he may have had with other officers, emphasizing that, at the time, he was “off shift at 7am”, and was focused on “getting ready to go home” at the end of a 12 hour shift. Moreover, he considered his involvement in the matter, (lasting approximately 20 minutes from beginning to end), to have been fairly minimal.
    • After positioning his vehicle to help block any further movement of the van, D.C. Nahrgang exited his vehicle and proceeded to the right side of the van to assist the officers already there, and to help keep an eye on mounting vehicle congestion in an effort to ensure the safety of officers and the defendants. In that regard:
      • On approaching the van, D.C. Nahrgang observed that D.C. Weyers already was engaged in the arrest of Mr Marchand, while Constable Menzies was in the process of arresting Mr Colquhoun, who was still seated in the rear passenger seat of the van.
      • While Constable Menzies had opened the rear passenger door on the right side of the van, and was giving Mr Colquhoun directions from outside the van, it seemed to D.C. Nahrgang was hesitating and not complying right away with Constable Menzies’ directions to exit the vehicle.
      • In an effort to assist Constable Menzies, D.C. Nahrgang then opened the rear “tailgate” door of the van, and began pushing Mr Colquhoun by the shoulders from behind, out of the back seat of the van and towards Constable Menzies, who was positioned just outside the opened right rear passenger door of the van.
      • D.C. Nahrgang fairly indicated that he could not recall precisely where Mr Colquhoun was sitting on the rear passenger seat of the van, (i.e., to the left, centre or right of that seat), when D.C. Nahrgang opened the tailgate door of the van. Nor was he able to see any part of Mr Colquhoun’s body below his head and the top four inches of his shoulders. D.C. Nahrgang therefore confirmed that, from his vantage point, he could not observe anything Mr Colquhoun otherwise may have been doing, and similarly did not observe anything in Mr Colquhoun’s possession when the tailgate was opened.
      • Apart from pushing Mr Colquhoun from behind, in the manner indicated above, D.C. Nahrgang did not otherwise participate in the arrest of Mr Colquhoun by Constable Menzies, nor any search of Mr Colquhoun incident to arrest. Nor did D.C. Nahrgang participate in the arrest or search of Mr Marchand or Mr Sneddon.
      • D.C. Nahrgang similarly did not participate in any search of the van, (either at the scene of the traffic stop or after the van had been taken back to police headquarters), and believed the only item of evidence he may have received and handled, emanating from the traffic stop and the arrest of the defendants, was some marihuana handed to him by Constable Brown, who indicated to D.C. Nahrgang that it had been found in the possession of Mr Marchand.[^62] D.C. Nahrgang was certain that he did not recover any other physical evidence.
      • Following his above actions at the scene of the traffic stop, D.C. Nahrgang left immediately for Stratford police headquarters. In particular, he wanted to get there and ensure that each of the three defendants had been advised of their rights and cautioned, (i.e., by personally doing that in relation to each accused), to cover off the possibility of that somehow not having been done during the chaotic events at the scene of the traffic stop.
      • D.C. Nahrgang confirmed that, from his perspective, there had been no time for officers participating in the operation to discuss, at the scene, what had happened during the arrest, as they were all simply too busy.
    • As noted above, it took approximately two minutes, from the time of the van being stopped, for all three occupants of the van to be removed from the vehicle and secured.
  • As for Mr Sneddon’s van, in which the three defendants had been travelling:
    • D.C. Serf was the SCU’s designated “exhibits officer” for the day, and therefore was tasked with searching the vehicle.
    • Approximately 10 minutes after all three defendants had been arrested and removed from the van, D.C. Serf therefore began a cursory search of the vehicle at the roadside, where it had been stopped. In doing so, his immediate concern was to see if he could locate any methamphetamine in the vehicle.[^63]
    • The initial observations made by D.C. Serf during that initial cursory roadside inspection of the van, which I accept as accurate, included the following:
      • on the vehicle’s driver’s seat was a cellular phone;
      • on the floor of the van, in the area between the front row seats and the van’s rear bench seat, (i.e., in the area of the van where a middle row of seating otherwise would have been located), was a bicycle;
      • on the vehicle’s rear “bench” passenger seat, in the seating area furthest to the right or “passenger side” of the van, (i.e., the seating area of the rear bench seat situated directly to the rear of the van’s front row passenger seat), were:
        • a metal or “silver” water bottle, containing what was later confirmed to be 88 grams of methamphetamine, subdivided into three bags of approximately equal weight; and
        • a cellular phone, less than one foot away from the aforesaid silver water bottle[^64]; and
      • on the floor of the vehicle, in a location between the rear bench seat and the right or “passenger side” interior wall of the van, (and adjacent to the rear bench seat), was a glass smoking pipe.
    • Of the items indicated above, observed by D.C. Serf during his aforesaid cursory search of the van at the site of the traffic stop, the only item D.C. Serf immediately seized and physically removed from the van, at the scene, was the aforesaid silver water bottle containing the 88 grams of methamphetamine. He deliberately left all the other observed items in place, (i.e., where he initially had observed them), with the intention of photographing them in that position once he was able to do so properly, after the van had been transported to the garage area of the Stratford police station.
    • In that regard, a determination had been made that circumstances and considerations of police and public safety prevented a thorough search of the van at the roadside; i.e., at the location where it had been stopped and the three defendants arrested. (By that time, it was the “middle of rush hour”, on one of Stratford’s busier streets, and the operation already effectively had closed Lorne Avenue’s eastbound lane for some time.) D.C. Serf therefore made arrangements to have the Sneddon van towed back to the police headquarters garage, where it could and would be the subject of a more thorough search. The van then was towed for approximately five minutes, directly from the site of the traffic stop on Lorne Avenue to the garage at the Stratford Police Station. D.C. Serf did not travel immediately with the van as it was towed, but was present when it arrived at the police garage.[^65]
    • As soon as the van arrived, D.C. Serf resumed his search efforts in relation to the van; i.e., to carry out and document a more thorough search of the vehicle and its contents.
    • D.C. Weyers was physically present in the police headquarters garage as D.C. Serf was conducting that search of the van, but was not immediately involved in formally searching the vehicle; i.e., in the sense that D.C. Weyers did not physically enter the van, did not locate or seize any items inside the van, and did not remove any items from the van. However, D.C. Weyers did lend assistance from time to time as D.C. Serf was removing certain items from the van, (e.g., the bicycle found in the area of the van where its middle seat or seats normally would have been positioned), asking for help in putting such items nearby so that D.C. Serf could continue his efforts within the van to search for and seize other items, or asking D.C. Weyers to provide and/or hold evidence bags for use by D.C. Serf. Although D.C. Weyers therefore had knowledge that certain items were being found and seized during the course of the search being conducted by D.C. Serf, D.C. Weyers accordingly did not see where any particular items were found and seized by D.C. Serf within the van. For example, while D.C. Weyers was aware that D.C. Serf found three cellular phones within the van, (and learned after the fact that one phone had been located on each of the three seats occupied by the defendants at the time of the traffic stop), D.C. Weyers did not observe D.C. Serf finding and seizing each phone from those respective seat locations.[^66] Nor did D.C. Weyers personally handle any of the phones.
    • During the course of the more fulsome search performed by D.C. Serf, observations made by D.C. Serf, (which I accept as accurate), included the following:
      • on the vehicle’s driver’s seat was, as noted earlier, a cellular phone;
      • in a centre console area between the driver’s seat and front passenger seat were a number of dime bags;
      • items on the front passenger seat included another cellular phone[^67], as well as marihuana and a digital scale;[^68]
      • on the floor of the van, in the area between the front row seats and the van’s rear bench seat, (i.e., in the area of the van where a middle row of seating otherwise would have been located), was, as noted earlier, a bicycle;
      • on the vehicle’s rear “bench” passenger seat, in the seating area furthest to the right or “passenger side” of the van, (again, the seating area of the rear bench seat situated directly to the rear of the van’s front row passenger seat), was, as noted above, a cellular phone;[^69] and
      • on the floor of the vehicle, in a location between the rear bench seat and the right or “passenger side” interior wall of the van, (and adjacent to the rear bench seat), was a glass smoking pipe.
    • Prior to removing the aforesaid items from the vehicle, D.C. Serf took photographs in an effort to document the locations and positions in which they had been found within the vehicle.[^70] In that regard, D.C. Serf nevertheless candidly acknowledged and indicated the following:
      • although the items observed during his cursory search appeared to be in the places and positions he had observed during the course of his cursory search of the van at the scene of the traffic stop, he noted that there may possibly have been some movement of the items during the course of the van then being towed and transported to the Stratford police garage;
      • although he had attempted to return each cellular phone to its original place and position before taking photographs, he had picked each one up for a short time to see if they were turned on, (which they were), to see if they were unlocked, (which they were not), and to see if they displayed any other information which might indicate their owner or assigned number, (which they did not); and
      • D.C. Serf accordingly was unable to swear that the photographs depicted the precise location and position of items at the time of the traffic stop and arrest of the defendants.
    • As D.C. Serf then sequentially seized and removed individual items from the van, he placed them into evidence bags with tagged identifiers, being careful to note which cellular phone had been found on which seat of the van. In relation to the cellular phones, D.C. Serf also:
      • took separate photographs of the three cellular phones as he displayed each on a desk at the station; and
      • placed each cellular phone in a special bag designed to prevent the phone from receiving further signals and communications.
    • Before D.C. Serf then placed the various seized items and evidence into “Property” storage at the police station, he prepared a typed two page “Exhibit List” containing a more expansive and detailed description of the items that had been seized as a result of the traffic stop and arrest operation, including items located and seized by officers other than D.C. Serf,[^71] items that D.C. Serf located and seized from within the van, and the van itself.
• At some point on July 20 or 21, 2016, (although I accept the indications of D.C. Weyers and D.C. Nahrgang that it did not take place immediately after the traffic stop and arrests, as all concerned were far too busy with other matters), a “debriefing” session or follow up discussion of sorts took place among officers who had participated in the underlying investigation, traffic stop and arrest operation. In the course of that discussion, there was a sharing of information which included, inter alia, a discussion by SCU members of what property had been found and seized during the traffic stop and arrests.
• On July 21, 2016, D.C. Weyers typed up certain portions of a “Report to Justice” application, indicating the items seized by police during the course of the traffic stop and arrest the day before, and indicating the desire of the police to retain the items while further investigation was being conducted in relation to the charges laid against the defendants. In helping to prepare and assemble that report and application, D.C. Weyers included a copy of the aforesaid “Exhibit List” prepared by D.C. Serf as the relevant SCU exhibits officer. D.C. Weyers prepared the other typed portions of the report and application simply because he simultaneously was completing a “Seized Property Management Form” in relation to Mr Sneddon’s van, and there were time pressures in that regard given the deadlines stipulated by the Criminal Code of Canada, (“the Code”).
• On July 22, 2016, D.C. Weyers finalized the “Report to Justice” application noted above, (e.g., by swearing the affidavit to be included with that report/application), and submitted it to a judicial official for review.
• Steps also were taken, following the detention and arrest of the defendants on July 20, 2016, to obtain judicial authorization for forensic measures that would enable information to be extracted from the cellular phones located and seized at the time of the defendants’ detention and arrest. In that regard:
  • At the time the three relevant cellular phones were found and seized, the police had no information as to the number assigned to each phone, or each phone’s subscription information.
  • None of the defendants was admitting ownership of any of the cellular phones.
  • The phones were not fingerprinted.
  • As the designated “exhibits officer” for the investigation and relevant arrests, D.C. Serf was tasked with preparing and swearing appropriate “Information to Obtain” (“ITO”) affidavits to be sworn and submitted in support of applications, (also prepared by D.C. Serf), to obtain appropriate warrants authorizing a search of the data on each of the three phones that had been found and seized. Relevant information, developments and findings in that regard include the following:
    • D.C. Serf finalized, swore and submitted such material, (creating, swearing and submitting a separate ITO affidavit and search warrant application for each of the three cellular phones), on November 16, 2016; i.e., approximately four months after the traffic stop and arrest of the defendants. Each of the separate ITO affidavits sworn by D.C. Serf was entered as an exhibit during the hearing before me, and I will not attempt to replicate their full text here. While I have reviewed and considered all of their contents, (and the following references to some of their content should not suggest otherwise), they included the following:
      • brief references, (e.g., in paragraphs 5 and 21), to the drug-related investigation that had led to the traffic stop and arrest of the particular named accused,[^72] to whom the relevant cellular phone was thought to have belonged;[^73]
      • an indication that the traffic stop had led to the discovery of a metal container, (found in the rear of the vehicle in which the named accused and two co-accused individuals had been travelling), which in turn was found to contain three bags of methamphetamine each weighing approximately 30 grams;[^74] and
      • an explanation as to why, based on D.C. Serf’s experience with drug-related investigations, charge-related evidence was likely to be found on the cellular phones, insofar as the use of cellular phones by those trafficking in drugs, (e.g., to receive and respond to requests from drug purchasers for narcotics), was now widespread and commonplace.
    • At the time, D.C. Serf had yet to receive any formal training in the drafting of such ITO and warrant application material. He has wanted to attend a specific course in that regard and, at the time of the hearing before me, he had been approved to take such a course in 2018. At the time of the hearing, however, those plans had not yet come to fruition.
    • When he prepared the ITO and warrant application documents in relation to the three cellular phones seized in this case, D.C. Serf nevertheless had reviewed materials prepared by the Ontario Police College to assist officers in the drafting of such ITO affidavits.[^75] D.C. Serf also already had experience with such drafting, having previously prepared approximately 4-8 such applications.[^76] He knew that his obligations, in preparing such material, included a duty to ensure accuracy and clarity of provided information to the best of his ability, and to make full, frank and fair disclosure of relevant information. He understood in particular that he was not to “pick and choose” information to include in the material, or withhold information that might undermine the police theory of the case and/or issuing of the warrant. He also made a regular practice of having his draft work “peer reviewed”, (i.e., reviewed by another member of the SCU team), to help catch and address any issues or mistakes he might not have noticed.[^77]
    • The three separate but similar sworn ITO and warrant applications prepared, sworn and submitted by D.C. Serf to a judicial officer on November 16, 2016, were promptly reviewed and approved on the “first try”; i.e., with the three requested search warrants for the three seized telephones being issued and returned to D.C. Serf that day, without the reviewing Justice of the Peace having identified any inadequacies or expressed any concerns.
    • Notwithstanding that outcome, D.C. Serf acknowledged that, in reviewing the three ITO affidavits in preparation for the hearing before me, he noted that he had made a number of errors, or other particular indications, which he would like to have amended, in retrospect. In particular:
      • Throughout the various sub-paragraphs of paragraph 13 of each ITO affidavit, (expressed in identical wording in each ITO affidavit), D.C. Serf inadvertently failed to delete references from an SCU template or precedent, commonly employed in the preparation of ITO affidavits, (and obtained within the previous six months from Sergeant Clarke), extending beyond offences involving controlled substances to also mention property offences, such as theft and trade in stolen property; i.e., the other type of crime investigated by the SCU, albeit to a lesser degree. D.C. Serf acknowledged in retrospect all such references should have been deleted from the relevant ITO affidavits, but did not feel their deletion would have negated the existence of reasonable and probable grounds for believing that evidence would be found on the seized cellular phones to support the charges of possessing methamphetamine and possessing methamphetamine for the purpose of trafficking brought against the accused.
      • In paragraph 24 of the ITO affidavit sworn to obtain a search warrant in relation to the phone believed to have belonged to Mr Marchand, D.C. Serf mistakenly had indicated that he was asking for a warrant to be granted that would permit its execution from a specified time on November 15, 2016 to a specified time later the same day. He had intended to indicate, (as he did in the other two similar ITO affidavits he swore to obtain search warrants for the other phones seized in this matter), that the relevant warrant should be granted so as to permit its execution between specified times on November 16, 2016, and February 16, 2017.[^78]
      • In paragraph 5 of the ITO affidavit sworn to obtain a search warrant in relation to the phone believed to have belonged to Mr Colquhoun, D.C. Serf included a statement saying: “At the time of COLQUHOUN’S arrest a black LG cellular telephone was located in COLQUHOUN’S possession”. In that regard:
        • As noted above, D.C. Serf testified that he had a definite memory of an officer participating in the traffic stop and arrest of the three defendants, (albeit an officer whose identity D.C. Serf could not recall later), indicating to D.C. Serf that, at the time of the traffic stop and arrest, Mr Colquhoun had been seen holding a cellular phone in his hand before setting it down on the seat beside him.
        • Before preparing the warrant application material, D.C. Serf went to considerable lengths to determine and confirm which participating officer had provided him with that relevant observations about Mr Colquhoun and the cellular phone thought to belong to Mr Colquhoun. For example, D.C. Serf spoke about that matter with all other members of the SCU who had participated in that particular operation and reviewed their respective notes, which were made available to D.C. Serf for review. D.C. Serf also spoke about that matter with Constable Menzies, whose notes nevertheless were not made available to D.C. Serf for review. The other SCU members participating in the operation indicated to D.C. Serf that they did not recall making or relating, to D.C. Serf, the indicated observations of Mr Colquhoun holding or setting down a cellular phone during the course of the traffic stop and arrest, and they did not believe that they had. In contrast, Constable Menzies indicated to D.C. Serf at the time of D.C. Serf’s follow up inquiries in that regard that he (Constable Menzies) could not recall whether or not he had made or related, to D.C. Serf, the indicated observations of Mr Colquhoun holding or setting down a cellular phone during the course of the traffic stop and arrest.
        • D.C. Serf testified that, in the circumstances, he was still certain that an officer had made and relayed the relevant observations to him at the time of the arrest and traffic stop, although he could no longer identify the particular officer or obtain confirmation in that regard. He still believed the contemporaneous observation and information to be true, and therefore included it in his affidavit in good faith; i.e., in an effort to make proper disclosure of the information he believed to be true, without any intention to enhance, through improper exaggeration, the basis for accepting that there were reasonable and probable grounds to believe evidence of the charged offence would be found on the phone thought to have belonged to Mr Colquhoun.
        • In particular, D.C. Serf testified and emphasized that, had he not received the relevant indication from another officer of Mr Colquhoun holding a phone in his hand at the time of his arrest, D.C. Serf simply would have included an indication, similar to that found in paragraph 5 of the similar ITO affidavits prepared in relation to the phones thought to have belonged to Mr Sneddon and Mr Marchand, simply indicating that the relevant phone had been located on the seat of the motor vehicle where Mr Colquhoun was sitting at the time of his arrest. In that regard, and as reflected in those other two affidavits, D.C. Serf emphasized his personal belief that attribution of a specific cellular phone, found in a specific seat of the van, to the individual seen sitting in/on that particular seat of the van at the time the three defendants were arrested, was a reasonable and adequate inference in the circumstances to justify his belief in the reasonable and probable grounds asserted in the relevant ITO affidavits.[^79] He felt that was particularly so in relation to Mr Colquhoun, whose seat, (on which the phone attributed to Mr Colquhoun was found), was located a significant distance from the other two individuals in the vehicle at the time of the relevant traffic stop and arrests, based on D.C. Serf’s own personal observations at the time.
        • I found the explanations provided by D.C. Serf in that regard to be sincere, compelling and logical, and accept the testimony of D.C. Serf that an officer participating in the traffic stop and arrest, whose identity D.C. Serf could no longer recall, (but which I find to have been Constable Menzies for the reasons outlined above), told D.C. Serf shortly after the traffic stop that Mr Colquhoun had been seen with a cellular phone in his hand at the time of his arrest. I also accept, in any event, that D.C. Serf’s honest intention, in relation to paragraph 5 of the ITO affidavit sworn in relation to the phone thought to be that of Mr Colquhoun, was to make what D.C. Serf believed at the time to be full and accurate disclosure, rather than any improper intention to embellish or exaggerate in order to improperly enhance the basis for finding reasonable and probable grounds to believe that evidence of the charged offence would be located on the phone attributed to Mr Colquhoun.[^80]
        • Having said that, as D.C. Serf himself acknowledged during the course of his testimony, in retrospect he would have added an indication, to paragraph 5 of the ITO sworn in relation to the phone thought to belong to Mr Colquhoun, that D.C. Serf’s information in that regard was not a first-hand observation, but came from a contemporaneous observation, subsequently relayed to D.C. Serf by an officer whose identity D.C. Serf could no longer confirm despite efforts made by D.C. Serf in that regard, as outlined above.
        • In the alternative and in any event, D.C. Serf also would have been content, in retrospect, to have paragraph 5 of the relevant ITO amended if and as necessary so as to simply indicate that the phone thought to be that of Mr Colquhoun was located on the seat just to the right of where Mr Colquhoun was sitting at the time of his arrest; i.e., the passenger seat located at the rear of the van. Again, (and as reflected in the other two ITO affidavits), D.C. Serf did not feel that making such a change would negate the existence of reasonable and probable grounds sufficient to obtain the requested search warrant in relation to the phone thought to be that of Mr Colquhoun.
    • More generally, D.C. Serf still believed that there were reasonable and probable grounds to justify granting of the requested search warrants in relation to the seized founds, based on what was known at the time he swore the relevant ITO affidavits and submitted the three relevant applications. In particular:
      • He believed that all three defendants had been stopped and arrested, on reasonable and probable grounds, for trafficking in methamphetamine.
      • His own search of the van in which the three defendants had been travelling confirmed the presence of 88 grams of methamphetamine, which in his experience as an officer with the SCU, was a quantity consistent with trafficking rather than possession for personal use.
      • He believed, (as noted above), that it was reasonable to infer that each of the phones, even if just found separately in/on a particular seat respectively occupied by a particular defendant at the time of their arrest, was associated respectively with the defendant who had been sitting in/on that particular seat at the time of the traffic stop and arrest. However, he also believed, for the reasons noted above, that the particular location of the three phones within the van was not essential information, in the circumstances, for drawing an inference that the phones were likely to contain information relevant to the charges, given that they were found in a vehicle containing 88 grams of methamphetamine, in circumstances indicative of trafficking.
      • In D.C. Serf’s experience as an officer in the SCU, those involved in the drug trade made frequent use of cellular phones to communicate their desire to purchase or ability to sell controlled substances, possession of cellular phones by those arrested for trafficking in narcotics was very common, and there accordingly was very likely to be evidence, on those three particular cellular phones, to support the charges laid against each defendant.
    • D.C. Serf also explained why he had taken the step of applying for the relevant search warrants, instead of attempting to contact cellular phone service providers in an attempt to obtain information, in relation to the three seized and locked phones. In particular, in his experience, there realistically was nowhere to begin such inquiries when the relevant numbers assigned to the telephones were unknown and otherwise unobtainable. Moreover, even if the relevant numbers were obtainable, and inquiries focused on those numbers were made to such service providers, in D.C. Serf’s experience the results of such inquiries were likely to be meaningless dead ends. In particular, those using cellular phones in the drug trade usually did not employ their proper legal names when obtaining phone subscriptions; i.e., precisely because they wanted to avoid the creation of documented links between themselves and any incriminating information about drug trafficking that might be found on such cellular phones if located by the police.
• After obtaining search warrants authorizing the police to take the steps necessary to search data on the cellular phones[^81], D.C. Serf enlisted the assistance of the Waterloo Regional Police Service in that regard. He did so because that police service had access to facilities, abilities and expertise to access, download and reveal the content of the data, on such cellular phones, that the SPS did not. As noted above, resulting searches of the data on the cellular phones were carried out in January of 2017; i.e., within the dates of execution contemplated by the issued search warrants.
• On December 4, 2017, Detective Barb Martin, (a member of the “Guns and Drugs Section” of the London Police Service, whom the Crown intends to proffer as an expert witness), prepared a report outlining her contemplated opinion concerning the meaning and significance to be attributed to various messages extracted from the three cellular phones, (said to belong to Mr Colquhoun, Mr Sneddon and Mr Marchand respectively), which Detective Martin feels are consistent with drug trafficking. In the present context, the parties agreed that the report could be filed as an exhibit to provide an indicated sample of the type of text message evidence the Crown intends to lead at trial if evidence extracted from the cellular phones is not excluded by the Charter application brought by the defendants.[^82]

[12] With the above evidence and findings in mind, I turn to the issues raised by the Charter application brought by the defendants.

Charter analysis – Detention and searches incident to arrest

[13] As noted above, the defendants’ first application seeks to exclude evidence found on the defendants or within the Sneddon vehicle, during searches incident to arrest, (including searches of the person of each accused and searches of the items found in Mr Sneddon’s van, but not including later searches of the data on cellular phones found within the van – insofar as the later searches are addressed by the defendants’ further application), on the basis that evidence was discovered and seized through alleged contraventions of the defendants’ right to be free from unreasonable search and seizure, (pursuant to section 8 of the Charter), and/or their right not to be arbitrarily detained, (pursuant to section 9 of the Charter), in circumstances warranting exclusion of the evidence pursuant to s.24(2) of the Charter.

[14] I will turn first to the question of whether the defendants have satisfied their onus of establishing that police conduct in that regard breached rights guaranteed to the defendants by the Charter; i.e., before turning to any consequential analysis relating to possible application of s.24(2) of the Charter.

[15] In that regard, I intend to focus initially on the question of whether or not the defendants were arbitrarily detained, contrary to section 9 of the Charter, before moving on to consideration of whether or not the defendants were subjected to unreasonable search and seizure, contrary to section 8 of the Charter.

[16] I do so because it generally was agreed that, apart from what were said to be additional and independent section 8 Charter violations raised by the defendants’ second pretrial application, (relating to the warranted search of the cellular phones located within the Sneddon vehicle), suggested violations of the defendants’ section 8 Charter rights were premised on the defendants’ contention that their detention and arrest was unlawful, thereby making the purported searches carried out incident to arrest presumptively unreasonable. (Apart from the Charter issues raised by the defendants’ other joint application, there was no suggestion that the police carried out the searches incident to the arrest in an unreasonable manner.)

[17] However, before turning to a more detailed assessment of the parties’ positions and arguments, in relation to the accused’s Charter applications, I pause to note a number of general principles relevant to the application of sections 8 and 9 of the Charter, in order to provide a general framework for that analysis.

GENERAL PRINCIPLES – SECTIONS 8 AND 9 OF THE CHARTER

[18] In that regard, the Supreme Court of Canada has emphasized that detention and search issues should be kept analytically distinct, because they stem from different police powers and must respect different Charter rights.[^83]

[19] In relation to section 8 of the Charter, general principles and considerations include the following:

• Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures, which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It may not be reasonable in every instance to insist on a prior authorization order to validate governmental intrusions upon individuals’ expectations of privacy. For example, exigent circumstances may require immediate action for the safety of police and/or to secure and protect evidence. However, prior authorization, where feasible, is a precondition for a valid search and seizure. It follows that warrantless searches are ordinarily inconsistent with section 8 of the Charter, and prima facie unreasonable under section 8. A party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness.[^84]
• In that regard, a warrantless search will respect section 8 if the search is authorized by law, and both the law and the manner in which the search is conducted are reasonable.[^85]
• However, the long-standing common law power of “search incident to arrest” is an exception to the general rule that a search conducted without prior authorization is presumptively unreasonable. That common law power is regarded as “eminently sensible”, and “essential for the protection of police officers carrying out their all too often dangerous duties”.[^86]
• In particular, at common law, after making a lawful arrest, a police officer has the right to search the person arrested and take from his person any property reasonably believed to be connected with the offence charged, or which might be used as evidence against the person arrested on the charge, or any weapon or instrument that might enable the arrested person to commit an act of violence or effect his escape.[^87]
• That automatic right of police officers to search incident to lawful arrest, and seize anything in the arrested person’s possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape, or provide evidence against him or her, arises at common law but has survived introduction of the Charter. That common law right must nevertheless be exercised in a manner consistent with the fundamental values enshrined in the Constitution. To that end:
  • The search must be for a valid objective in pursuit of the ends of criminal justice, (such as the discovery of an object that may be a threat to the safety of the police, the accused or public, or that may facilitate escape or act as evidence against the accused). Such searches, made incidentally to arrest and justified, are not limited by necessity.
  • The purpose of the search must not be unrelated to the objectives of the proper administration of justice, (which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions).
  • The search also must not be conducted in an abusive or unreasonable fashion. In particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.[^88]
• Moreover, if the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of that doctrine must be respected. The most important of those limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier v. Langlois, supra, (i.e., protecting the police, protecting the evidence, and discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable.[^89]
• If a search is carried out incident to an arrest that is found to be unlawful, the search will be unreasonable and therefore constitute a breach of an individual’s section 8 right to be free from unreasonable search and seizure.[^90]

[20] Applicable general principles relating to section 9 of the Charter include the following:

• While section 9 provides that everyone has the right “not to be arbitrarily detained”, it is well recognized that a lawful detention is not “arbitrary” within the meaning of that provision.[^91] On the other hand, an “arbitrary” detention includes an unlawful arrest and the detention that follows upon an unlawful arrest.[^92]
• Although it generally has been recognized that the onus is on an accused to demonstrate that his or her detention was unlawful, the onus is on the Crown to show that the objective facts rise to the level supporting a lawful detention.[^93]
• A police officer may lawfully arrest an individual without a warrant if the officer has subjective and objective grounds to make the arrest. In particular, the Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest, (which requires the officer to have an honest belief, supported by objective facts, that the suspect committed the offence). However, those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they do not require proof beyond a reasonable doubt, a prima facie case for conviction, or even proof on a balance of probabilities, before making the arrest.[^94]
• Determining the existence of reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances, but rather a common sense and non-technical approach. It necessarily is a qualitative standard, upon which reasonable people can differ in some cases.[^95]
• The fact that an experienced police officer has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable.[^96]
• Determining whether reasonable and probable grounds exist is a fact-based exercise, which depends on all the circumstances of the case. The totality of the circumstances relied upon by the arresting officer, including the dynamics within which the officer acted, and his or her knowledge and experience, (which entitle the officer to draw inferences and make deductions drawing on that experience), will form the basis of the objective assessment as to whether there were reasonable and probable grounds for an arrest. In making that assessment in any given case, trial judges should not engage in after-the-fact dissection of an officer’s grounds, and individual facts and observations, considered in isolation. Trial judges also must appreciate that arrests often are made in a fast-moving, dynamic situation without the benefit of lengthy reflection. Moreover, what may appear innocent to the general public may have a very different meaning to a police officer experienced in drug-related matters.[^97] In assessing whether he or she has reasonable grounds, a police officer must take into account all available information, disregarding only such information as she or he has good reason to believe is unreliable.[^98] However, the officer is not required to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.[^99]
• Provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds. If a peace officer is relying on an order or direction from another officer, the undertaking of an independent assessment as to whether a suspect should be arrested is not necessary.[^100]

[21] In determining whether reasonable and probable grounds exist to carry out a search or effect an arrest, police officers not infrequently act upon hearsay information received from a confidential informant. General principles in that regard include the following:

• Hearsay statements of an informant can provide reasonable and probable grounds, although evidence of a tip from an informer, by itself, is insufficient.[^101]
• In weighing such evidence relied upon by the police, (to establish reasonable and probable grounds and justify a warrantless search), reliability of a “tip” is to be assessed by recourse to “the totality of the circumstances”. Relevant considerations in that regard include whether the information was compelling, credible and corroborated. Weaknesses in one such area may, to some extent, be compensated by strengths in the other two.[^102]
• In determining whether such information is “compelling”, courts have regard to considerations such as: whether the information is current; whether it goes beyond “mere rumour or gossip”, and/or “bald conclusory statements”, to provide specific information and details; and the informant’s source of knowledge or basis for his or her assertions, (with first-hand or direct knowledge of the relevant facts being more compelling). The fewer the details, the greater the risk of innocent coincidence, a false tip, and reliance on rumour, gossip and speculation. Similarly, reliability of an informant’s information is diminished by an absence of any sense as to how the informant acquired his or her information.[^103] A tip can be compelling even if it contains some inaccuracies.[^104]
• In determining whether such information is “credible”, courts have regard to considerations such as: whether the informant is anonymous or known and identified, (which exposes the informant to the jeopardy of being charged with public mischief or obstruction of justice for deliberately misleading the police); the basis on which the informant provides information, (with first-hand knowledge being more credible); whether any benefit was sought or promised or actually given in exchange for the information; whether the informant has any charges or investigation pending against him, and/or convictions for crimes of dishonesty such as perjury or obstruction of justice; and whether the informant is an “untried” and “untested” source or someone who has a track record of providing information to the police that has proved to be accurate, reliable and truthful in the past.[^105]
• In determining whether such information is “corroborated”, courts have regard to considerations such as the results of police surveillance. It is not necessary for the police to confirm each detail in an informant’s tip, or to confirm the commission of the alleged crime itself. However, actual observations should conform sufficiently to the provided information to remove the possibility of innocent coincidence, and there should be confirmation of something material within the communicated information as opposed to routine or commonly available facts. Moreover, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided, and the risk of innocent coincidence is greater.[^106]
• Reputation alone will never provide reasonable grounds, but the past activities of a suspect are also not irrelevant, provided the reputation is related to the ostensible focus of the investigation, and its veracity is based on police familiarity with the suspect rather than hearsay, (in which case its veracity cannot be assumed).[^107]

[22] With the above principles in mind, I now turn to an assessment of whether there have been breaches of the section 8 and/or 9 Charter rights of the defendants in this case.

CHARTER BREACH ANALYSIS

[23] In my view, counsel correctly placed the initial focus on whether there were reasonable and probable grounds for D.C. Schuurman to direct a traffic stop of the Sneddon vehicle and the arrest of its occupants for possession of methamphetamine, as that determination effectively formed a significant linchpin of each side’s further desired analysis. In particular:

• If such grounds did not exist, the arrest was unlawful and therefore arbitrary, (giving rise to a section 9 breach), and the warrantless search or searches conducted incident to that unlawful arrest would in turn be unlawful and unreasonable, giving rise to a section 8 breach, regardless of whether or not the search may have been conducted in a reasonable manner – although the specific manner in which the search or searches may have been conducted effectively might compound the dimensions and seriousness of the section 8 breach. Analysis pursuant to s.24(2) of the Charter would then be required in any event to determine whether the drugs found during the unlawful search should be excluded.
• If reasonable and probable grounds for the arrest directed by D.C. Schuurman did exist, it accordingly was a lawful arrest, there was no arbitrary detention giving rise to a section 9 breach. Proper searches of the person of each defendant, and the vehicle in which they were travelling, incident to arrest, would be lawful and reasonable. Whether or not there is a basis for application of s.24(2) of the Charter would then depend on whether a search or searches incident to arrest was/were conducted improperly, thereby giving rise to a breach of the defendants’ section 8 Charter rights, independent of section 9 of the Charter.

[24] As I have found no breaches of the section 9 or section 8 Charter rights of the defendants in that regard, consideration of how s.24(2) of the Charter otherwise may have applied to exclude evidence on that basis is unnecessary and inappropriate.

Charter analysis – Validity of search warrants issued in relation to cellular phone data

[59] That nevertheless leaves, for further consideration and determination, the further pretrial Charter application jointly brought by the defendants, alleging a breach of their section 8 Charter rights in relation to the data on the three cellular phones, (i.e., based on alleged invalidity of the relevant search warrants issued in that regard), and corresponding requests for exclusion of evidence concerning that extracted data pursuant to s.24(2) of the Charter.

GENERAL PRINCIPLES – SECTION 8 OF THE CHARTER AND WARRANT VALIDITY

[60] Before turning to assessment of the parties’ positions and arguments in that regard, I pause to note a number of general principles relevant to such determinations, in order to provide a general framework for that analysis; i.e., general principles which help to determine whether a search of data on a cellular phones, ostensibly carried out after obtaining judicial authorization, actually was unlawful because the underlying search warrant should not have issued.

[61] In doing so, I note in advance that there is an obvious degree of overlap between such principles and those outlined above relating to allegations that Charter rights were breached during the course of an unwarranted search incident to an arrest, following an arrest said to be unlawful.

[62] In particular, there is an obvious overlap in the principles applicable to each type of determination because both involve section 8 of the Charter.

[63] Despite some inevitable repetition in that regard, I nevertheless will outline separately what I believe to be the general principles applicable to determinations of warrant validity and possible section 8 charter violations, so that there will be no uncertainty or dispute about all the principles I had in mind and brought to bear in my assessment and determination of the defendants’ second pretrial Charter application.

[64] In that regard, I believe general principles applicable to section 8 of the Charter, searches conducted pursuant to warrants, and challenges to warrant validity include the following:

• Again, pursuant to section 8 of the Charter, everyone has the right to be secure against unreasonable search and seizure. The purpose of the section is to protect individuals from unjustified state intrusions into their privacy.[^118]
• As also noted above, search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the search is carried out in a reasonable manner. An unlawful search is presumptively unreasonable.[^119]
• However, a search warrant issued by a justice is presumptively valid, and an accused alleging that a judicially-authorized search warrant was invalid, (as a prelude to seeking exclusion of evidence located and seized pursuant to execution of the warrant, on the basis of an alleged contravention of the accused’s section 8 Charter rights), bears the onus of demonstrating, on a balance of probabilities, the warrant’s alleged invalidity and any resulting Section 8 violation.[^120]
• Subsection 487(1) of the Code requires reasonable grounds, (i.e., to believe that the applicable legislated conditions of that subsection are satisfied), as the standard of persuasion to support issuance of a search warrant; i.e., to make issuance of the warrant lawful. Judicially interpreted, the standard is one of credibly-based probability.[^121]
• From both a common law and constitutional perspective, mere suspicion, conjecture, hypothesis or “fishing expeditions” fall short of the minimally acceptable standard for issuing a valid search warrant. On the other hand, in addressing the requisite degree of certitude, it must be recognized that the standard of reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case. The appropriate standard of reasonable or credibly-based probability envisions a practical, non-technical and common-sense probability as to the existence of the facts and inferences asserted.[^122]
• As searching of computers and mobile communication devices involves additional privacy interests, such searches require specific pre-authorization. In particular, if police intend to search computers or mobile communication devices found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice, by information on oath, that they have reasonable grounds to believe that any computer or other mobile communication device they will discover will contain the things for which they are looking. It follows from that requirement of pre-authorization that, in such cases, the ITO affidavit must contain sufficient information to permit the authorizing justice to find that there are reasonable grounds to believe that any computers or communications devices they discover on execution of the search will contain what they seek.[^123]
• So long as a sworn ITO meets the requisite legal norm, there is no need for it to be excessively lengthy or detailed. All it must do is set out the facts fully and frankly for the authorizing justice, so that he or she can make an assessment of whether the said facts rise to the standard required in the legal test for issuing the search warrant, and authorizing the intended search. Ideally, an ITO affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months or years.[^124]
• It is also important to appreciate that search warrants are statutorily-authorized investigative aides typically issued before any criminal proceedings have been commenced, and that the ITO affidavits sworn to obtain them almost invariably are drafted by police officers, often operating under tight time constraints and without the assistance of any legal advice. Courts accordingly have recognized that it is unrealistic and inappropriate to measure the quality of drafting of such documents by the standard of legal precision that might be expected of counsel in pre-trial or trial proceedings. In short, “reasonable latitude” should be accorded to the drafter of an ITO affidavit in considering the precision of the language that was used in the document. Few search warrant applications are perfect.[^125]
• Those swearing ITO affidavits also may reasonably rely on hearsay. In that regard, while such affiants may not ignore signs that others providing information may be misleading them or omitting material information, they also are not required, in the absence of some indication that something is amiss, to conduct their own investigation to confirm the accuracy of such hearsay information.[^126]
• Moreover, an issuing justice is entitled to draw reasonable inferences from stated facts, and the affiant of an ITO is not obliged to underline the obvious. Furthermore, some deference should be paid to the ability of a trained police officer to draw inferences and make deductions which might well elude an untrained person.[^127]
• The “currency” or “freshness” of the evidence relied upon by the affiant of an ITO may be important in determining whether reasonable grounds exist to search a location. In that regard:
  • Numerous courts have held that an ITO affidavit must contain information that is recent enough to satisfy the issuing justice that it is probable that the things sought will still be at the location, and not that it is merely possible that they are still there.[^128]
  • Assessing whether the evidence relied upon in the ITO affidavit is sufficiently recent to support reasonable grounds will depend on a number of factors, including the time that has passed, the nature of the document or thing that is sought, as well as the location to be searched. For example, given the nature of drugs and drug trafficking, information concerning the location of drugs may soon lose its value, with the passage of time, in supporting a claim of reasonable grounds to search a place. Towards the other extreme, information suggesting that a target had an account with a bank or other financial institution may have a much longer (if not infinite) “shelf-life” in an ITO focused on obtaining a warrant to seize such banking or other financial records; e.g., given the nature of regulated banking, including the third party institution’s obligation to preserve client records.[^129]
  • In appropriate cases, concerns about the currency or freshness of information, (e.g., owing to the passage of time between the offences under investigation and the time at which a search warrant is sought and issued), may be offset by other information or other circumstances, (including exigent circumstances), that might justify reliance on dated information.[^130]
• For lawful issuance of a warrant, it is necessary, but not sufficient, that the affiant of an ITO subjectively or personally believed in the accuracy and credibility of the grounds of belief. Lawful issuance of a warrant also requires that reasonable grounds exist from an objective perspective; i.e., that a reasonable person, standing in the shoes of the police officer, could have believed that the facts probably existed as asserted, and have drawn the inferences therefrom submitted by the affiant.[^131]
• In that regard, the inferences, conclusions and beliefs of the ITO affiant need not be the only reasonable ones to be drawn from the evidence. In particular, the evidence also may be capable of alternative innocent or contrary interpretations and explanations, but that does not render “non-innocent” inferences, conclusions and beliefs unreasonable. So long as the ITO affidavit contains reliable evidence that might reasonably be believed, on the basis of which the warrant could have issued, that is sufficient to confirm the validity of the warrant.[^132]
• In reviewing the sufficiency of a warrant application, and the sufficiency of an ITO affidavit in particular, the reviewing judge must not approach the question of the issuance of the search warrant de novo, simply substituting his or her view for that of the issuing justice. The test is whether there was reliable evidence that might reasonably be believed, on the basis of which the authorization could properly have issued. In particular, the question is not whether the reviewing court itself would have issued the warrant, but whether there was any sufficient credible and reliable evidence to permit the issuing justice 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. Again, that standard does not require proof beyond a reasonable doubt or proof of a prima facie case. If the inference of specific criminal activity and location of associated evidence is a reasonable inference from the facts, the warrant could have issued.[^133]
• Challenges to the validity of a search warrant may be launched on the basis of alleged “facial invalidity”; i.e., with the accused attacking the validity of the warrant by arguing that the ITO affidavit, on its face, provided no sufficient and proper basis for the justice to issue the warrant. In such cases, the reviewing judge is required to examine the ITO affidavit and determine whether, on the face of the information disclosed within its four corners, the justice could have issued the search warrant. In other words, the record that is examined for the purpose of determining the facial validity of the search warrant is the ITO affidavit, and only the ITO affidavit. In such cases, the record is not enlarged or amplified by any additional evidence.[^134]
• However, additionally or in the alternative, an accused may challenge the validity of a search warrant on a “sub-facial” basis, with the accused attacking the accuracy and/or reliability of the substantive content of an ITO affidavit. In such cases, the reviewing court does not undertake its review solely on the basis of the ITO affidavit as it was presented to the justice who issued the warrant, if exclusions and amplifications are necessary and appropriate. In particular, in relation to such “sub-facial” challenges to the validity of a search warrant:
  • the reviewing court must exclude erroneous information; and
  • the reviewing court may have reference to “amplification” evidence; i.e., additional evidence presented during a voir dire to correct minor errors in the ITO affidavit, so long as such additional evidence corrects minor and technical errors made in good faith by the police in preparing the ITO affidavit rather than deliberate attempts to mislead the authorizing justice, and bearing in mind that amplification evidence is not a means for police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds.[^135]
• Again, however, the reviewing judge does not substitute his or her view for that of the justice who issued the warrant. If, based on the record which was before the authorizing justice, (taking into account any appropriate excising of misleading information and/or proper amplification on the review), the reviewing judge concludes that there was at least some evidence that might reasonably be believed, on the basis of which the authorization could properly have been issued by the authorizing justice, then he or she should not interfere.[^136]
• Although it may be convenient to discuss separately the different pieces or types of evidence relied upon to justify issuing of the warrant, it is settled law that, in assessing the sufficiency of grounds offered, a reviewing court must assess the those grounds in their totality. The appropriate approach for judicial review of an ITO affidavit is scrutiny of the whole document in its entirety, rather than a limited focus upon isolated passages or paragraphs. In particular, a “line by line” and/or “word by word” dissection of the document, in an effort to show that some of the grounds standing alone do not support the existence of reasonable grounds, is not the correct approach. Again, the determination must be made with regard to the totality of the circumstances.[^137]
• If an accused satisfies his or her burden of demonstrating the alleged invalidity of a search warrant, a search carried out pursuant to the invalid warrant will have been warrantless, and constitute a prima facie breach of section 8 of the Charter.[^138]

CHARTER BREACH ANALYSIS

[65] In this particular case, the second pretrial Charter application jointly brought by the defendants raises, in my view, considerations obviously going beyond a “facial” challenge to the validity of the relevant search warrants issued in relation to the cellular phones.

[66] In particular, cross-examination by defence counsel of D.C. Serf, as the affiant who prepared the search warrant applications and swore the relevant underlying ITO affidavits, repeatedly suggested the existence of inaccuracies and that the officer failed to include relevant information, and Crown counsel highlighted, in the course of her questioning of D.C. Serf, that there were aspects of the ITO affidavits which, in retrospect, admittedly were erroneous and should have been amended to more accurately reflect information available to the SCU and D.C. Serf at the relevant time. In other words, the Crown asked the court to consider what effectively was “amplification evidence”; i.e., evidence submitted to correct what were submitted to be minor or technical “good faith” errors in the relevant ITO affidavits.

[67] On either basis, it was submitted by defence counsel that the ITO affidavits sworn by D.C. Serf did not contain sufficient information upon which the issuing justice could have granted the relevant search warrant, such that the resulting data searches carried out in relation to the seized cellular phones, found in the Sneddon van after the relevant traffic stop and arrest of the defendants, effectively were unauthorized and unlawful, which in turn gave rise to a prima facie breach of the rights guaranteed to the defendants by section 8 of the Charter.

[68] In that regard, it was not disputed that, since a search warrant is presumptively reasonable, the defendants bore the onus of demonstrating that the search warrants issued in this case, in relation to the three cellular phones, could not properly have issued, having regard to the content of the ITO affidavits sworn by D.C. Serf, bearing in mind the deletion of erroneous information, and even having regard to appropriate amplification evidence.

[69] In my view, the defendants have not discharged their burden in that regard.

[70] To the contrary, in my view, having regard to the totality of the evidence presented in the ITO affidavits, as amended by what I consider to be proper exclusions of erroneous evidence, and inclusion of a modest amount of amplification evidence, (which in my view satisfies the requirements for admitting such amplification evidence), and also having regard to what I consider to be reasonable inferences which the affiant, reviewing justice and I were capable of drawing, there was clearly some sufficient credible and reliable evidence, in each of the three separate but similar cellular phone search warrant applications, permitting the issuing justice to find reasonable and probable grounds:

• that the offence of possessing methamphetamine for the purpose of trafficking had been committed; and
• that evidence of that offence would be found within the data contained on the relevant cellular phone that had been located and seized by the police, as set forth in the relevant ITO affidavit.

[71] My reasons in that regard include the following:[^139]

• First, I think it is neither useful nor appropriate to consider validity of the warrants from a facial validity perspective when, at the very least, (and for the reasons to follow), the evidence presented at the voir dire confirmed that some of the information set forth in the affidavits respectively presented to each warrant contained information acknowledged to be erroneous. In particular, it seems to me that there is little point or justice in determining whether the warrant could have issued on the basis of the information contained in the warrant, (i.e., looking only within the four corners of the three affidavits as they originally were presented), when all concerned do not dispute that at least some of the information/indications set forth therein should not have been there or presented in their original form to the reviewing Justice of the Peace.
• Second, I find that certain exclusions and amplifications, (i.e., in relation to the evidence set forth in the affidavits tendered in support of the warrant applications), are necessary and appropriate in the circumstances, before there is a determination of warrant validity. In that regard:
  • There was no dispute that the inclusion of references in the affidavits to property offences, (such as theft and trade in stolen property), were erroneous and should not have been included in the original affidavits. There was no evidence or suggestion that any of the defendants had committed property offences, and the affiant, (D.C. Serf), candidly acknowledged that the references were inadvertent and stemmed from his use of a template, without appropriate final edits to remove such references. For the purpose of this analysis, I approach warrant validity on the basis that such references should be notionally deleted or excluded from the supporting affidavits, and disregarded completely in determining warrant validity.
  • In my view, the date information set forth in paragraph 24 of the ITO affidavit sworn to obtain a warrant in relation to the phone believed to have belonged to Mr Marchand, suggesting that the police intended to execute the requested warrant with certain hours on November 15, 2016, should be considered notionally deleted and replaced by indications that the requested and contemplated period for execution of the relevant warrant would be from specified times on November 16, 2016, to specified times on February 16, 2017. In my view, that is a further instance of a minor and technical error made in good faith that should be corrected. There is no reason to believe that D.C. Serf had any reason or intention to suggest that the period for execution of a warrant in relation to the phone in question would be any different from that specified in the warrant applications tendered in relation to the other two telephones. Indeed, the actual draft warrant signed by the reviewing Justice of the Peace contained the correct dates, suggesting that the Justice of the Peace may have realized the error in the relevant underlying affidavit and signed the warrant as drafted in any event. Moreover, the relevant search was carried out with the relevant period stipulated by the actual warrant, reinforcing an inference that was the intention from the outset.
  • For the purpose of determining warrant validity in relation to the phone thought to belong to Mr Colquhoun, (i.e., the one located on the rear bench seat of the Sneddon van, in an area immediately to the right of where Mr Colquhoun was sitting at the time of the traffic stop and directed arrests), I also will proceed on the basis that the sentence in paragraph 5 of the ITO affidavit sworn in support of that particular warrant application, reading “At the time of COLQUHOUN’S arrest a black LG cellular telephone was located in COLQUHOUN’S possession”, should be considered notionally deleted and replaced by the sentence “At the time of COLQUHOUN’S arrest a black LG cellular telephone was located on the rear bench seat of the motor vehicle where COLQUHOUN was seated.” In saying that, I wish to emphasize the following:
    • For the reasons outlined in detail above, I think the relevant sentence in paragraph 5 of the affidavit in question actually was accurate in fact; i.e., that Constable Menzies saw Mr Colquhoun holding the cellular phone in question at the time of the arrest, and told D.C. Serf about that, even though he later came to forget making the observation.
    • I nevertheless am very mindful of a concession effectively made in paragraph 21 of Crown Counsel’s written submissions, indicating that, for the purpose of determining warrant validity, the Crown asked the court to proceed on the basis “that it was factually inaccurate to describe the phone as ‘located in [Mr Colquhoun’s] possession’ as the phone was seized from the area where Colquhoun had been seated”. In the circumstances, I think the determination of warrant validity accordingly should be approached on the basis indicated by Crown counsel, which inherently is more supportive of the position advanced by Mr Colquhoun’s counsel than my relevant factual finding as to what actually was the case; i.e., in terms of where the relevant cellular phone was at the time of Mr Colquhoun’s arrest..
    • Having said that, I also think this particular issue is the subject of appropriate amplification evidence to correct the notional “error” by deleting but also correcting it to include an indication, similar to those in the other two affidavits, that the relevant cellular phone had been found on the seat of the motor vehicle where the relevant accused had been sitting at the time of the arrest. In that regard, I find that any possible error made by D.C. Serf in his original description of where the phone had been located at the time of Mr Colquhoun’s arrest, (although I do not think it was an error for the reasons outlined above), was made in good faith. (In particular, even if one approaches the matter on the basis that the indication of the phone having been located in Mr Colquhoun’s possession at the time of the arrest was inaccurate, in my view that does nothing to detract my other finding, for the reasons outlined in detail above, that D.C. Serf sincerely believed his original indication to be true.) Moreover, the notional change, to correct the “error” with the notional replacement wording, reflects a more modest consideration supporting reasonable grounds that obviously was present and known at the time the original affidavit was sworn. In particular, as D.C. Serf testified and I accepted, were it not for his honest and sincere belief that Mr Marchand had been seen holding the relevant phone at the time of his arrest, D.C. Serf would have indicated, (in a similar manner to the indications found in the affidavits sworn in relation to the phones thought to belong to Mr Sneddon and Mr Marchand), that the relevant phone had been located on the seat in the motor vehicle immediately to the right of where Mr Colquhoun was sitting at the time of his arrest. Having regard to the circumstances as a whole, I therefore think the situation should be approached as one involving a good faith error on a technical point in respect of which amplification evidence was appropriate to reflect a modified reality, (i.e., of the relevant cellular phone being located on the seat next to where Mr Colquhoun was sitting rather than in his immediate possession), asserted by the defence and conceded by the Crown for present purposes. Certainly, there was nothing whatsoever in the evidence, available to D.C. Serf at the time of swearing the original affidavit, to suggest that the relevant phone, if not being held by Mr Colquhoun at the time of his arrest, would have been anywhere other than on the seat beside Mr Colquhoun, where it unquestionably was found when the van was searched at the scene of the traffic stop and again back at the police garage.
  • Fourth, I find that, even with the above exclusions and corrections or amplifications, there was certainly at least some evidence that might reasonable be believed, in relation to each phone, on the basis of which an authorization to search that phone could properly have issued by the authorizing justice – particularly when one considers the inferences that, in my view, reasonably were available in the circumstances. Without limiting the generality of the foregoing:
    • Each ITO affidavit, sworn by an experiences member of the SCU, indicated that a motor vehicle had been the subject of a traffic stop, at which time the vehicle had been found to contain at least the following:
      • three occupants;
      • a metal water bottle containing 88 grams (or just over 3 ounces) of methamphetamine, divided into 3 separate bags of equal weight;
      • bags;
      • a digital scale; and
      • the cellular phone in respect of which the search warrant was being sought.
    • In my view, that information and reasonable inferences capable of being drawn therefrom included at least some sufficiently credible and reliable evidence on which a reviewing justice could have found a credibility-based probability, (i.e., reasonable and probable grounds for believing), that the offence of possession of methamphetamine for the purpose of trafficking had been committed. In that regard:
      • Methamphetamine in that very substantial quantity is inherently indicative of possession for the purpose of trafficking, rather than possession for personal use.
      • The simultaneous presence of other indicia of trafficking in the van, (e.g., a digital scale capable of weighing methamphetamine into smaller amounts for distribution, and bags to package those smaller amounts), are capable of reinforcing an inference of drug trafficking.
      • The methamphetamine obviously was located in a moving vehicle, travelling from one destination to another, prior to the traffic stop carried out by the police. In that regard, I note that the legislated meaning of “traffic”, set forth in section 2 of the CDSA, includes actions taken to “transfer” and/or “transport” a controlled substance.
      • The deduction of trafficking in methamphetamine was being drawn by an experienced police officer, (albeit perhaps not one with substantial experience in the drafting of warrant applications), who was a full time member of the Stratford police “Street Crimes Unit”; i.e., an entity very familiar to judicial officials in this area, dealing with criminal law matters, as a police unit focused intensively on drug-related matters. As inference and deduction of trafficking by such an officer was and is entitled to some deference.
      • It bears repeating that the presented information, (amended as noted above), was not required to establish proof beyond a reasonable doubt, or even a prima facie case, that the offence of possession of methamphetamine for the purpose of trafficking had been committed. In my view, the information was more than capable of justifying a reasonable or credibly-based probability in that regard, which is sufficient.
    • In my view, each ITO affidavit, (notionally amended in the manner noted above), also included at least some sufficiently credible and reliable evidence on which a reviewing justice could have found a further credibility-based probability, (i.e., reasonable and probable grounds for believing), that the data on the relevant cellular phone, in respect of which the warrant was being sought, would afford evidence with respect to the commission that offence of possessing methamphetamine for the purpose of trafficking. In that regard:
      • Each ITO affidavit, (including the notionally amended ITO affidavit relating to the phone thought to belong to Mr Colquhoun), contained an indication that the relevant phone was found in the vehicle on the seat where the relevant named defendant had been sitting. In my view, that gives rise to further reasonable inferences:
        • that the cellular phone in question likely belonged to the person who had occupied the seat on which the relevant phone was located, as persons naturally and frequently keep their cellular phones close to their person, if only so that they are in a position to notice and address incoming calls and text messages; and
        • that placement of a cellular phone on a vehicle seat naturally suggests that it was being held or otherwise being positioned for ready use at a time when methamphetamine was being transported in the vehicle, as persons are unlikely to sit on a cellular phone without being aware of its presence, (in the case of the phone found in the driver’s seat that had been occupied by Mr Sneddon, or the phone found on the front passenger seat occupied by Mr Marchand), the phone found on the rear seat was close to Mr Colquhoun and distance from the vehicle’s other two occupants, and positioning a cellular phone out in the open, (i.e., as opposed to storing it in the pockets of clothing), obviously makes it more readily accessible.
      • The evidence set forth in each ITO affidavit expressly relies on D.C. Serf’s experience in drug investigations to make the link between cell phone use and drug trafficking. In particular, D.C. Serf provided sworn evidence emphasizing the common place and widespread use of cellular phones by those involve in the drug trade, and provided numerous illustrations and examples in that regard.[^140]
      • D.C. Serf’s inference and deduction that the relevant cellular phone would afford evidence of the trafficking in methamphetamine offence, in the circumstances, was being drawn, once again, by an experienced police officer, (albeit perhaps not one with substantial experience in the drafting of warrant applications), who was a full time member of the Stratford police “Street Crimes Unit”, focused intensely on drug-related matters. Once again, pursuant to the authorities noted above, I think such an inference and deduction, by such an officer, was and is entitled to some deference.
      • D.C. Serf’s sworn evidence nevertheless also was entirely consistent with views expressed by the Supreme Court of Canada, in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, recognizing that cellular phones are used to facilitate criminal activity, and drug trafficking in particular. In that regard, the Supreme Court noted, inter alia, that “cell phones are the ‘bread and butter’ of the drug trade and the means by which drugs are marketed on the street”.[^141]
      • Those views of the Supreme Court of Canada have been noted and echoed by trial judges in cases such as R. v. Lewin, [2016] M.J. No. 340 (Q.B.), wherein the court found that the presence of a cellular phone in a vehicle, searched incident to arrest, and found to contain drug residue and other indicia of trafficking, (including scales and dime bags), gave rise to a clear inference that the phone likely was being used for drug trafficking, in turn giving rise to the requisite grounds for issuing a warrant for the search of its contents.[^142]
  • Fifth, there was no suggestion that the information presented by D.C. Serf was not sufficiently current, in this particular situation. In particular, given the nature of the property to be searched, and the steps taken to secure the phones and prevent their receipt of further messages, there was nothing to suggest that the relevant situation was anything other than static.
  • Sixth, I was not persuaded by numerous arguments, advanced by defence counsel, in support of suggestions that the warrants authorizing search of the relevant cellular phones were invalid. For example:
    • It was emphasized repeatedly, during cross-examination and in the written submissions tendered by defence counsel, that D.C. Serf had failed to mention, in the ITO affidavits sworn in support of the requested warrants to search the relevant cellular phones, a great many things that could have been mentioned. Defence counsel submissions in that regard were wide-ranging, and I will not attempt to list exhaustively all of the matters, not referred to in the ITO affidavits, that defence counsel essentially characterized as inappropriate omissions. However, they included such matters as information about prior police interactions with the three defendants; information about the prior criminal history of the three defendants that may have been known to the police; confidential informant information received and relied upon by the SCU in the course of the extended drug investigation leading up to the traffic stop and arrest of the defendants; considerations relating to the reliability of those confidential informants and whether their information had been corroborated; details of the surveillance observations made by members of the SCU during the course of the criminal investigation; details about whether or not the investigation had noted any drug-related use of cellular phones; and information about Mr Sneddon’s confirmed ownership of the motor vehicle that was the subject of the police traffic stop. With respect, in my view such submissions were not really relevant to the issue I effectively was called upon to decide, and somewhat misguided: In particular:
      • They are argumentative “red herrings”, insofar as they attempt to raise issues about information that could have been in the ITO affidavits, but fail to address the proper and relevant issue of whether there is any sufficient and credible information in those affidavits, (notionally revised in the manner outlined above to address appropriate exclusions and amplifications), on the basis of which the authorization could properly have been issued by the Justice of the Peace.[^143] In that regard, it should be remembered and emphasized in particular that the issue to be considered by the Justice of the Peace, in reviewing the warrant applications, was not whether there were reasonable and probable grounds for the defendants to be lawfully arrested, entailing a lawful and proper search of the van incident to arrest; i.e., the issue to which much of the investigation evidence noted above was directed.
      • It seems to me that the “improper omission” arguments were misguided, insofar as they essentially suggested that the issued warrants should be invalidated because the ITO affidavits failed to include a great deal of information that actually would have been more incriminating vis-à-vis the defendants; i.e., in terms of reinforcing an inference that they were involved in drug trafficking, providing a stronger basis for finding the existence of reasonable and probable grounds to believe that the requirements of s.487(1) of the Code were satisfied as far as the relevant cellular phones were concerned. To cite but a few examples in that regard, I fail to understand how the warrant applications would have been anything but stronger had the ITO affidavits included information indicating:
        • that Mr Colquhoun and Mr Sneddon both had prior CDSA convictions confirming involvement with methamphetamine;
        • that reliable confidential informants had provided corroborated information indicating that Ms Colquhoun was trafficking in methamphetamine, using rides provided by Mr Sneddon in the very vehicle that was the subject of the relevant traffic stop;
        • that Mr Sneddon was the owner of the vehicle in which a very substantial quantity of methamphetamine were found;
        • that all three defendants had been seen visiting the residence of a confirmed supplier of large quantities of methamphetamine, at times when that well-known supplier of methamphetamine was present;
        • that the sister of that well-known supplier of methamphetamine, (who herself was another confirmed trafficker in methamphetamine), had used a cellular phone to communicate indirectly with Mr Sneddon and Mr Marchand, to counsel them on avoiding police, while she was actively engaged in transporting a substantial quantity of methamphetamine; and/or
        • that all three defendants were stopped by police while travelling directly back to Stratford after visiting the remote rural residence of that well-known supplier of methamphetamine in the middle of the night.
    • It was argued that the warrants should be invalidated because the circumstances were said to provide clear demonstrations of bad faith and a deliberate intention to mislead the Justice of the Peace. In that regard, defence counsel argued, inter alia, that the ITO affidavits had been prepared by an officer with comparatively little training or experience in the preparation of warrant applications; that the officer in question repeatedly had demonstrated a lack of diligence in the course of the police investigation leading up to the arrest, (e.g., by failure to record certain observations in central and/or personal notes); that the officer had included erroneous and inaccurate information in the affidavits; and that the officer deliberately had omitted large amounts of available information. However:
      • Beyond the “reasonable latitude” courts afford to police officers who prepare warrant applications without legal training, (confirmed by the authorities noted above), it seems to me that D.C. Serf’s level of training and experience with the preparation of warrant applications is not a reason for invalidating the warrant if the information he did provide in his ITO affidavits, (as notionally revised in the manner noted above), included at least some credible and reliable evidence that might reasonably be believed, on the basis of which the authorization could properly have been issued by the authorizing Justice of the Peace.
      • I simply do not share the view of defence counsel that D.C. Serf exhibited a lack of diligence that was “routine and systemic” and/or was “intentionally misleading”. In that regard:
        • As noted above, D.C. Serf did fail to include reference to certain observations in central and/or personal notes. However, for reasons outlined above, such failures were explained to my satisfaction and in my view were not indicative of bad faith. Moreover, in my view, any such failures that may have occurred in the course of the underlying investigation have little bearing on the necessary determination of whether the notionally revised ITO affidavits included sufficient information to meet the applicable standard of credibility-based probability.
        • Similarly, I do not think errors in preparation of the ITO affidavits candidly acknowledged by D.C. Serf were indicative of bad faith. They too were explained to my satisfaction, and in my view their impact on warrant validity determination has been addressed by the notional revisions outlined above.
        • In my view, certain aspects of the ITO affidavits relied upon by defence counsel to suggest deliberate attempts to mislead, (e.g., the original indication that Mr Colquhoun was found in possession of a cellular phone at the time of the arrest, and the implicit if not explicit indications that phones identified in the warrant applications belonged to the persons indicated therein), were nothing of the kind. Without limiting the generality of the foregoing:
          • For the reasons outlined above, I found that the indication of Mr Colquhoun being in physical possession of a phone at the time of the arrest was an expression of D.C. Serf’s sincere belief, and a belief grounded in fact – even if warrant validity is being determined herein on a different basis owing to Crown counsel’s concession in that regard.
          • As noted above, implicit if not explicit attribution of the relevant phones to each of the three defendants was not an attempt to mislead, but in my view reflected a reasonable inference based on consideration, (expressly noted in the ITO affidavits relating to the phone thought to have belonged to Mr Sneddon and Mr Marchand, and now included in the notionally revised ITO affidavit relating to the phone thought to have belonged to Mr Colquhoun), that the phones had been located in proximity to where each defendant was sitting within the van at the time of the traffic stop and arrest.
        • For the reasons noted above, D.C. Serf was not required to include, in the ITO affidavits, the large amounts of additional information generated by the investigation which defence counsel thought was the subject of improper omissions. In my view, a failure to include non-required information in an ITO affidavit is not indicative of bad faith, (especially in situations where that additional information was largely incriminating), or of any intention to mislead.

[72] For the above reasons, the defendants have not satisfied me, on a balance of probabilities, that the warrants authorizing a search of the data of the relevant cellular phones were invalid. To the contrary, I find that the relevant search warrants issued in relation to the data on the three cellular phones were valid, and that the resulting searches of the data on those phones were authorized by law.

[73] There was no suggestion or evidence that the searches conducted pursuant to the relevant search warrants were carried out in an unreasonable manner.

[74] I accordingly find no breach of the section 8 Charter rights of the defendants, in relation to searching of the data on the three seized cellular phones.

CONSEQUENCE OF CHARTER BREACH DETERMINATION

[75] As I have found no breach of the section 8 Charter rights of the defendants, in relation to searches carried out by police in relation to data on the cellular phones, consideration of how s.24(2) of the Charter otherwise may have applied to exclude such evidence is unnecessary and inappropriate.

Conclusion

[76] For the reasons set out above, the pretrial applications brought by the defendants, alleging contravention of their Charter rights, and requesting exclusion of evidence at trial on that basis, are dismissed.

“Justice I. F. Leach”

Justice I.F. Leach

Released: November 30, 2018

COURT FILE NO.: 17-616

DATE: 2018/11/30

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

CHRISTOPHER COLQUHOUN, ROGER MARCHAND, and WILLIAM SNEDDON

REASONS FOR APPLICATION DECISION

Justice I.F. Leach

Released: November 30, 2018

[^1]: See R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at paragraph 35. [^2]: The “NICHE” system nevertheless is used jointly by five separate police services; i.e., the police services for the communities of Kitchener-Waterloo, Guelph, Brantford, South Simcoe and Stratford. The system accordingly is used to record occurrences wherein an individual has any involvement with any officer of any of those five police services. [^3]: In the course of his independent testimony, D.C. Weyers indicated that he had similar prior familiarity with Mr Marchand, and his relationship to Mr Sneddon. In particular, prior to 2016, D.C. Weyers had no prior involvement with Roger Marchand, but knew who Mr Marchand was, (including knowledge that Mr Marchand was Mr Sneddon’s son), and was able to recognize Mr Marchand on sight. Like D.C. Schuurman, D.C. Weyers nevertheless was not sure how he had acquired that general knowledge and familiarity, apart from thinking that it probably had come from his general experience acting as a police officer within the city of Stratford. [^4]: D.C. Nahrgang indicated that C.I. Number Three had not identified the specific narcotics he or she used, which may or may not have included methamphetamine. [^5]: While D.C. Nahrgang was uncertain whether he could confirm whether the consideration provided was monetary or related to charges faced by C.I. Number Three, D.C. Schuurman testified it was the latter. [^6]: D.C. Nahrgang confirmed that C.I. Number Three did not provide any information concerning the quantity, price, packaging or specific place of storage of the methamphetamine being sold by Ms Howse, nor the persons to whom Ms Howse was selling methamphetamine. The detective confirmed specifically that C.I. Number Three did not mention Mr Colquhoun or Mr Sneddon in that regard, or otherwise. D.C. Nahrgang also explained that, while he had felt uncertain about his ability to reveal the specific narcotic identified by C.I. Number Three at the time of the preliminary hearing, (for fear that might reveal the identity of C.I. Number Three), he had since reviewed the matter with C.I. Number Three, who had authorized him to disclose that additional information which the C.I. had provided earlier. [^7]: D.C. Schuurman explained that the practice, commonly but not always employed during surveillance, (as there is no established rule or protocol in that regard), is designed to facilitate the making of observations by those not engaged in preparing notes, and ensure that observations are recorded in an orderly way. The resulting notes also are converted into a Word format, and placed on a “Central Notebook” that can be reviewed by SCU members who were participating, (to help ensure their accuracy), and SCU members who were not participating, (so that they too are made aware of the observations). Officers preparing such central notes “sign off” on them. Officers participating in an investigation then frequently if not routinely review the central notes. For example, D.C. Schuurman reviewed all of the central notes prepared in relation to this investigation. While some participating officers make a practice of signing off on such central notes if and when they are reviewed, that is not always done, and there once again is no established rule or protocol in that regard. (D.C. Schuurman personally has not done that for some time now.) However, if officers reviewing the central notes see that something deviates from their memory of what happened, they have the ability to ask the central note taker to make indicated corrections. [^8]: D.C. Weyers acted as a “central note taker” on that particular occasion. [^9]: D.C. Schuurman made an enquiry, using records maintained by the Ministry of Transportation, and found that Mr Sneddon was the registered owner of the vehicle. The same vehicle is referred to alternatively, throughout these reasons, as the Sneddon “van” or “vehicle”. [^10]: D.C. Schuurman, at least, also knew the particular apartment, (i.e., Unit 10), in which Ms Howse resided. [^11]: D.C. Nahrgang was working at the Stratford police station when Ms Howse was brought there following a drug-related arrest in 2014, (as part of an enforcement operation known as “Project Delta”, during which ERU officers had been obliged to smash a window in the vehicle of Ms Howse), and he both saw and spoke with Ms Howse at the time. [^12]: In cross-examination, defence counsel emphasized that there was no note made of that observation in the central notes made during the relevant surveillance; something which D.C. Weyers, (the central note taker), D.C. Schuurman and D.C. Nahrgang all fairly acknowledged. D.C. Schuurman and D.C. Weyers also both readily confirmed that they personally did not see Ms Howse that evening. However, for numerous reasons, I accept that the observation of Ms Howse was made by D.C. Nahrgang and relayed by him via radio to the other members of the surveillance team, in the manner D.C. Nahrgang described. In particular:

First, D.C. Nahrgang was adamant that he made the observation of Ms Howse, and that he relayed it to other members of the surveillance team via his radio. The detective’s memory in that regard was distinct and vivid, as he had been to the relevant apartment building a number of other times, (during prior work done in co-operation with the Waterloo Police relating to “biker enforcement” activity), but that was the only occasion on which he had been there in winter. He remembers it being bitterly cold on the night in question, as he was obliged to wait in his vehicle, late at night, with the engine off, necessarily maintaining that position alone, without anything else to do, as the other members of the surveillance team were depending him to stay there and watch for Mr Colquhoun and Mr Sneddon. He was able to recall details of his precise location in relation to the apartment building, applicable lighting conditions, (i.e., that it was dark but light was provided from the apartment via a sliding door and some parking lot lighting from buildings), having to periodically defrost his vehicle windows to preserve his view and keep it clear, and the presence of nearby objects such as trees and boulevards which nevertheless did not obstruct his view. I found all of the detective’s testimony in that regard to be detailed, guileless, compelling and believable.

Second, D.C. Nahrgang’s testimony struck me as being deliberately fair and not exaggerated. Again, he made it clear that he could see Ms Howse clearly, but the same was not true of other individuals whom he could see in the apartment, but not make out clearly. Had the detective been inclined to exaggeration and/or fabrication, he might easily have expanded his testimony to suggest a sighting of Mr Colquhoun in the same apartment as Ms Howse, at the relevant time, but he candidly confirmed that he was unable to do so. The detective similarly confirmed that he was unable to see Mr Colquhoun or Mr Sneddon at all when both men were inside the building.

Third, D.C. Nahrgang explained, in a manner I found to be credible and reasonable, that he did not find the absence of any reservation in the central notes to be surprising, (even after his admitted later review of their content), as the focus of the surveillance that evening was observation of the movements of Mr Colquhoun and Mr Sneddon. In that regard, he emphasized that the SCU officers routinely would make and relay incidental observations about seeing individuals other than the target or targets, and comment on what they were doing, (e.g., smoking), during the course of surveillance, but that frequently would not be documented unless it had some extraordinary significance. In this particular case, the SCU already knew that Ms Howse lived in the apartment building such that her presence there was not considered remarkable, surprising or significant at the time. D.C. Nahrgang also recalled that, while he was obliged to remain stationary in his surveillance position, the other members of the surveillance team (including D.C. Weyers) were in motion, which also may have contributed to the observation not being documented at the time.

Fourth, D.C. Schuurman was quite certain, (as much as D.C. Nahrgang), that the latter definitely had made a comment noting his observation of Ms Howse in the apartment building at the relevant time, during the surveillance that evening. While D.C. Weyers candidly acknowledged that he was unable to recall whether or not there had been any observation of Ms Howse at or in the apartment building at the relevant time, which he did not include in the central notes he was preparing, D.C. Weyers also noted that he admittedly was much more focused that evening, (as he thought the surveillance team was), on the movements of Mr Colquhoun and Mr Sneddon, and on any confirmed interaction between Mr Colquhoun and/or Mr Sneddon with Ms Howse. Again, the police already knew that she lived in the apartment building, and her observed presence there accordingly was not remarkable. [^13]: To the extent anything turns on it, I note that D.C. Weyers thought the relevant time interval was approximately 20 minutes. However, he was not referring to notes when he gave that estimate, and I prefer and accept the much more precise firm indication provided by D.C. Schuurman in that regard. [^14]: As noted by D.C. Schuurman in his testimony, the fact that C.I. Number One independently indicated knowledge of Mr Colquhoun and Mr Sneddon being the subject of police surveillance on the date in question, (according to an account said to have been provided to the C.I. directly by Mr Colquhoun), buttressed his belief that the information being provided by C.I. Number One was credible and reliable, insofar as the police had other information to corroborate what he or she was saying. [^15]: D.C. Schuurman was not working that day, but shortly thereafter reviewed the related reports prepared by the surveillance team, and also spoke directly with D.C. Serf about the surveillance team’s observations – including observations of Mr Colquhoun being seen as a passenger in the van being driven by Mr Sneddon. [^16]: In his testimony, D.C. Weyers confirmed that his relevant note of that observation made reference only to “a van”, and indicated that he could not recall with certainty whether or not it was Mr Sneddon’s van, although it could have been. However, in his testimony, D.C. Serf was quite certain that the van in question was a different one from that owned and operated by Mr Sneddon, which the SCU had followed around and from Stratford to 13 High Street in Kitchener on January 28, 2016. D.C. Serf also recalled that the van seen during this particular observation apparently belonged to the female seen with Mr Colquhoun, who lived at the 588 Downie Street address. [^17]: For example, D.C. Weyers had arrested Mr Riordan, on numerous prior occasions, for possession of methamphetamine. [^18]: Although the reference to Mr Colquhoun as a passenger in the Sneddon van is not included in the “central notes” for the surveillance conducted that day, prepared by D.C. Serf, (nor within the typed version of the surveillance report D.C. Serf thereafter prepared while making reference to those central notes), D.C. Schuurman independently recalled D.C. Serf advising him of the observation later that same day. D.C. Weyers, who was a member of the relevant surveillance team, independently was also quite certain that such an observation had been made at the time of the relevant surveillance, although he was not the central note taker, did not have the reference recorded in his personal notes, and had difficulty recalling with certainty who made the observation. To the best of his recollection, such an observation was made by Sergeant Clarke, who was positioned in a location where he would have seen Mr Colquhoun and Mr Sneddon exit Mr Colquhoun’s residence and enter Mr Sneddon’s vehicle before driving away. Whether or not Sergeant Clarke also made such an observation, (and I find it impossible to explore that further without having heard testimony from Sergeant Clarke), I think it sufficient to indicate that I accept the independent testimony of D.C. Serf that he made such an observation that day, although it was not recorded in the central notes – despite or indeed because of the fact D.C. Serf was the central note taker. In particular, D.C. Serf explained that he definitely had made the observation of Mr Sneddon driving his van at the relevant time, with Mr Colquhoun as a passenger in the front passenger seat of the van, as the two men were travelling in the van through the Town of St Marys and approaching a stop light there. As he personally made that observation, D.C. Serf relayed it by radio to the other members of the surveillance team, but failed to make a corresponding note in the central notes as he was driving and his vehicle was in motion, and he then remained in motion as the fluid and dynamic surveillance operation continued to follow the Sneddon van as it continued to make its way to the Line 6 property. D.C. Serf acknowledged apologetically that he made an error by not realizing, before eventually signing off on the central notes at the end of the operation, that he had not included a reference to that particular observation. However, by that time he had engaged in more than five hours of surveillance, which had ended very late in the day, and simply forgot to include a reference, in the central notes, (which he used to prepare the typed version of a surveillance report), to the relevant observation of having seen Mr Colquhoun as a passenger in Mr Sneddon’s van. He candidly acknowledged that he thereafter did not realize he had omitted the relevant observation from the documents in question until much later; e.g., perhaps many months after the fact. I found the explanation of D.C. Serf, for the omission of the relevant observation from the central notes, to be sincere, logical and believable, and I accept it. I also accept his testimony that he definitely saw Mr Colquhoun in the front passenger seat of the van as it was being driven by Mr Sneddon through the Town of St Marys, on its way to the Line 6 property from Stratford. D.C. Serf’s memory of the observation was specific and detailed, and that particular surveillance operation stuck out in his mind because of the highly unusual counter-surveillance driving encountered later that evening and described below. Moreover, as noted above, D.C. Serf having made the observation at the time of the relevant surveillance, (as opposed to fabricating it belatedly at some later date), was supported by the independent testimony of D.C. Schuurman, who recalled D.C. Serf speaking to him later that day about the relevant observation of having seen Mr Colquhoun in the van being driven by Mr Sneddon. [^19]: It should be noted and emphasized that the adequacy of the ITO sworn to obtain the “tracking warrant”, (i.e., the warrant providing judicial authorization to affix a tracking device to Mr Sneddon’s vehicle), and/or whether that particular warrant should have been issued, were not issues formally and properly raised by the applications brought by the defendants. To the contrary, counsel for Mr Colquhoun indicated and confirmed during the course of submissions, and on behalf of all counsel, (who did not question or contradict his assertion), that the defendants took no issue with the tracking warrant. [^20]: Having said that, D.C. Schuurman also emphasized that, based on his experience, longer visits did not negate the possibility of trafficking. Some dealers were friends with their customers and might spend time socializing. Other dealers specifically instructed customers to stay for longer periods of time as a counter-surveillance measure; i.e., in an effort to prevent police from drawing the aforesaid inference of drug trafficking arising from very short visits. Drug suppliers and purchasers also usually spend more time together when transactions involve large quantities of drugs; e.g., one or more ounces rather than a single gram. That is because each party to such larger drug transactions has much more incentive to confirm that he or she is not being “short-changed”. In particular, suppliers frequently will take time to count and confirm the amount of larger cash payments, (something not usually necessary with smaller purchases involving the passing a $10 or $20 bill), and purchasers often will ask for the narcotics to be precisely weighed and packaged in their presence. [^21]: During cross-examination of D.C. Schuurman, it was noted and acknowledged that the observations made on June 30, 2016, occurred nine days after the summer solstice; i.e., during a period with more extended hours of daylight. However, D.C. Schuurman also emphasized that the police observations had occurred over a period lasting until 10:30pm, by which time darkness had fallen. [^22]: Perhaps it goes without saying, but as D.C. Schuurman and D.C. Weyers confirmed during the course of their respective testimony, the tracking device understandably was not capable of detecting who was driving the vehicle, who else may have been in the vehicle as passengers, what occupants of the vehicle other than the driver may have been doing, or whether certain people were entering or exiting the vehicle. [^23]: As D.C. Weyers explained at some length during the course of his testimony, despite the “colour chart” set forth on some of the maps with superimposed data, suggesting that certain uniform colours would be used to depict certain indicated speeds, (i.e., zero kph, 41kph, 82kph, 123kph and 164kph), the program used to depict the data actually employed shading to show gradual changes in the vehicle’s speed. For example, while a very bright red would indicate the vehicle was totally stopped, lighter shades of red would indicate that it was moving slowly. Similarly, as those shades progressively turned from a reddish hue to tones that were more orange in colour, the program was indicating that the vehicle was still moving at relatively slow speeds but accelerating to 41kph, at which point the colour would transition into hues of yellow. Where the vehicle decelerated from speeds above 41kph, and began moving at gradually slower speeds, the colour progression would be reversed. Such considerations explained, (as D.C. Weyers made clear in his testimony), the colour transitions in the close up map showing the Sneddon van’s movements around the Fullerton Township Garage on July 20, 2016, described below. Similarly, (as D.C. Weyers also made clear in his testimony), when the line of travel of the Sneddon vehicle transitioned from light green, to dark green, to light blue, to dark blue, to purple, to dark blue, to light blue and dark green again, after the vehicle left Kirkton on its way back to Stratford, (portions of travel also discussed in greater detail below), that indicated how the vehicle had gradually accelerated up to speeds exceeding 164kph before then decelerating to slower speeds. [^24]: Those particular surveillance observations were made and relayed to other members of the surveillance team, (i.e., D.C. Schuurman and D.C. Weyers), by D.C. Serf. At the time of the observations, D.C. Serf, (unlike D.C. Schuurman and D.C. Weyers), had no prior familiarity with Mr Marchand, and accordingly did not know or recognize Mr Marchand on sight. At the time of making and reporting his observation over the radio, D.C. Serf therefore simply described Mr Marchand to D.C. Schuurman and D.C. Weyers as “a younger male”. Either later that evening or early the next morning, D.C. Serf nevertheless carried out further independent investigation, (i.e., reviewing the NICHE system to ascertain known associates of Mr Sneddon, before then checking Facebook as well, and looking at available photographs), and confirmed that the “younger male” he had seen arriving at the Line 6 property with Mr Sneddon was in fact Mr Sneddon’s son, Mr Marchand. As noted and explained below, by that point D.C. Weyers and D.C. Schuurman independently also had made the inference that the “younger male” seen arriving at the Line 6 property with Mr Sneddon was Mr Marchand; i.e., based on a subsequently discovered text message sent by Ms Moriarity to her sister Lorena Howse. [^25]: D.C. Serf, (again, the SCU officer who was making observations of the farm at the time), indicated that he did not observe Mr Colquhoun at the Line 6 property that day. In his testimony, D.C. Schuurman similarly confirmed that there was no observation of Mr Colquhoun at the time, and that Mr Marchand actually had never been observed together with Mr Colquhoun during the course of the entire investigation leading up to the arrest of the three defendants on July 20, 2016. [^26]: As D.C. Schuurman and D.C. Weyers independently confirmed during the course of their testimony, Ms Moriarity was the target of the surveillance organized for that day, and the separate investigation into Ms Moriarity’s possible drug-related activity was the reason behind the SCU’s contemplated activity that day. When Ms Moriarity left the Line 6 property, members of the surveillance team therefore all left the area as well, to continue following her movements, without any member of the team remaining behind to make further observations of what continued to happen thereafter at the Line 6 property. There accordingly were no further police observations of Mr Sneddon, his van or his possible passengers that day, after police followed Ms Moriarity away from the Line 6 property and arrested her in the circumstances outlined below. D.C. Schuurman also indicated that he had no further information available, (e.g., as generated by the tracking device), while he was in the witness box, to indicate or confirm how long the Sneddon van remained at the Line 6 property on the day in question. [^27]: In his testimony, D.C. Weyers made reference to visible flashing of lights on a police vehicle up ahead, while D.C. Schuurman confirmed it was a “R.I.D.E.” (Reduce Impaired Driving Everywhere”) traffic stop independently organized by other police officers. [^28]: Again, both D.C. Schuurman and D.C. Weyers already knew Mr Marchand, and his relationship to Mr Sneddon. However, as noted above, the observation made at the Line 6 property, of Mr Sneddon driving his van there with a “young male passenger”, had been made by D.C. Serf. In the circumstances, D.C. Weyers was unable to visually recognize and identify the “young male passenger” as Mr Marchand, or make as reasonable inference that the “young male passenger” observation actually had been a reference to Mr Marchand, until he discovered and read the relevant text message discovered on Ms Moriarity’s phone after her arrest. That additional information, supplemented by his prior knowledge of the relationship between Mr Sneddon and Mr Marchand, and the fact that William or “Billy” Sneddon had been observed at the Line 6 property, allowed him to then immediately draw the inference that the reference to “Roger” in the text message was a reference to Mr Marchand. (D.C. Schuurman was in a similar position to that of D.C. Weyers, and unable to draw the immediate inference, in a similar fashion, until the text message subsequently was brought to his attention by D.C. Weyers.) During cross-examination, defence counsel emphasized that D.C. Weyers had not included, beyond noting discovery of the phone and text message and precisely recording the wording of the message he observed, any further reference to his immediate inference that “Billy and Roger” referred to Mr Sneddon and Mr Marchand Emphasis also was placed on a suggested failure by D.C. Weyers to ensure that references to his finding of the phone, observing the text message, and drawing inferences as to the meaning of “Billy and Roger”, had been added to the central notes for the day, which D.C. Weyers admittedly had reviewed. For such reasons, it was expressly put to D.C. Weyers that he actually had not drawn an immediate inference, on July 9, 2016, that the text message reference to “Roger” was a reference to Mr Marchand. D.C. Weyers denied that suggestion, and I accept his denial. More generally, in my view, the suggested criticisms of D.C. Weyers, in relation to the personal and central notes prepared in relation to the relevant day, did not undermine the accuracy of the testimony of D.C. Weyers as to when he made the relevant inference. I say that for a number of reasons. Without limiting the generality of the foregoing:

First, I think it needs to be remembered that the primary purpose of an officer’s personal notes is to assist with later recollection of events, and in my view there reasonably is no requirement that they exhaustively describe the minutia of every thought or inference an officer may have had or drawn at the time of the events being noted, failing which evidence in that regard should be rejected. On this occasion, as D.C. Weyers himself emphasized, he