Her Majesty the Queen v. Kody Arnold Cameron Johnson

COURT FILE NO.: 16-599

DATE: 2019/03/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KODY ARNOLD CAMERON JOHNSON

Defendant

COUNSEL:

Frances Brennan, for the Crown

Nadia Klein, for the accused

HEARD: September 6, 10 and 12, 2018

Justice I.F. Leach

Introduction

[1] By way of overview, the accused herein, Mr Johnson, is 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 northwest of Stratford, in January and February of 2016. Evidence in that regard is outlined in greater detail below. In broad terms, however, the Crown says:

• that officers of the Stratford Police Service (“SPS”) and the Ontario Provincial Police (“OPP”) were working in liaison with each other, in early 2016, to investigate the possession and sale of illicit drugs in the city of Stratford and smaller communities in areas bordering and/or near Stratford;
• that an OPP officer assigned to the Perth County Street Crimes Unit “PCSCU” received information from a confidential informant (“CI”) in late January of 2016, indicating that the accused was residing in the town of Mitchell, (located to the northwest of Stratford), and trafficking in methamphetamine;
• that the relevant OPP officer shared the aforesaid CI information with members of the Stratford Police Street Crimes Unit (“SPSCU”) during one of the regular liaison meetings between the two units;
• that two confidential informants, handled by officers of the SPSCU, provided the SPSCU with additional information in late January and/or early February of 2016 indicating that a named Stratford resident, Harley Schneider, was trafficking in methamphetamine supplied by the accused, and about to receive a further supply of methamphetamine from the accused;
• that the aforesaid additional C.I. information was supplemented by covert surveillance operations carried out by members of the SPSCU on February 3 and 10, 2016. and other information already available to the SPSCU from previous investigations;
• that members of the SPSCU formed reasonable and probable grounds to arrest the accused for possession of a controlled substance on February 10, 2016, as his vehicle entered Stratford and was proceeding in the direction of Harley Schneider’s residence;
• that Mr Johnston was stopped and arrested accordingly, in the early evening of February 10, 2016, at which time the arresting officer, DC Serf, took possession of a cellular phone Mr Johnston was holding as he exited his vehicle;
• that further searches of Mr Johnson and his vehicle incident to arrest disclosed:
  • that Mr Johnson had a wallet on his person containing $970.00 in Canadian currency; and
  • that Mr Johnson’s vehicle contained various items and weapons thought to be drug-related, including a glass pipe, small plastic “baggies” in various locations within the vehicle, a digital scale, two bags of methamphetamine respectively containing 86.5 grams and 1 gram of that substance, several knives and an expandable baton;
• that the police subsequently sought and obtained a warrant authorizing a search of the cellular phone Mr Johnson was holding at the time of his arrest; and
• that numerous text messages, retrieved from that cellular phone, related to drug trafficking and trafficking in methamphetamine in particular.

[3] Mr Johnson has elected to be tried by a judge sitting alone in this court.

[4] In advance of that trial, Mr Johnson submits, by way of an appropriate formal pretrial application:

a. that the circumstances of his arrest and searches of his person and vehicle carried out incident to arrest involved breaches of several rights guaranteed to Mr Johnson pursuant to the Canadian Charter of Rights and Freedoms, (“the Charter”), including his right not to be arbitrarily detained, (pursuant to section 9 of the Charter), his right to be free from unreasonable search and seizure, (pursuant to section 8 of the Charter), his right to obtain and instruct counsel without delay, (pursuant to subsection “b” of section 10 of the Charter), and his right to remain silent, inherent in his right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, (pursuant to section 7 of the Charter);

b. that all evidence located and seized during the aforesaid searches of Mr Johnson and his vehicle were obtained by the police pursuant to the aforesaid alleged contravention of Mr Johnson’s rights under the Charter, in circumstances where the said evidence accordingly should be excluded from evidence pursuant to s.24(2) of the Charter; and

c. that evidence extracted from the relevant cellular phone also was obtained by the police pursuant to alleged contravention of Mr Johnson’s right to be free from unreasonable search and seizure, (pursuant to section 8 of the Charter), in circumstances where the said evidence accordingly should be excluded from evidence pursuant to s.24(2) of the Charter, insofar as the relevant search warrant obtained by the police in relation to the cellular phone was said to be invalid.

[5] This particular decision is intended to address and resolve the issues raised by Mr Johnson’s pretrial Charter application, before the matter proceeds further.

[6] My consideration of those issues will start with a consideration of the evidence tendered in that regard, and my corresponding findings of fact.

Application evidence and findings

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

• The SPSCU is a designated unit, within the SPS, tasked with the investigation of matters relating to controlled substances and “higher end” stolen property, (such as automobiles), in the city of Stratford and its surrounding area. At any given time, there are approximately five or six officers in the unit.
• All members of the SPSCU work together as a team, adopting routine practices to ensure that information obtained by any one member of the unit consistently is shared with all other members of the unit. All officers in the unit receive ongoing training, not only in general investigative techniques, but also in techniques specifically relating to drug investigation. The vast majority of the unit’s time is devoted to drug-related investigations, which essentially is the unit’s primary objective. One of the narcotics most frequently encountered by the SPSCU 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 application brought by Mr Johnston, I was presented with testimony from four members of the SPSCU, each of whom had substantial experience with drug-related investigations. In particular:
  • Detective Constable (“DC”) Jeff Serf has been a police officer with the SPS since August of 2011, and has worked exclusively with the SPSCU since January of 2015. During that time, approximately 90-95 percent of his focus and time have been directed towards drug investigations, including the handling of confidential informants, regular participation in surveillance operations, (which take place several days each week and sometimes entail full day observations), arrests, and efforts to obtain search warrants. Like other SPSCU officers, he has taken specific training relating to drug investigations, including multiple expert symposium courses relating to production, purchase and trafficking of illicit narcotics, as well as courses relating to undercover operations and other covert investigative techniques. (DC Serf himself has participated in such undercover operations, during which he purchased illicit drugs, including methamphetamine, at least 10 times.) At least 80-85 percent of the drug investigations in which DC Serf is involved, and perhaps more, involve drug trafficking.
  • Michael Weyers has been employed by the SPS since 2010. He became a member of the SPSCU in January of 2015, and has worked in that capacity ever since. Like other members of the SPSCU, he has considerable training and experience focused on investigations relating to controlled substances. That includes attendance at numerous drug-relating training seminars led by those with expertise in the area, and extensive personal experience derived from having participated in more than 75 drug investigations relating to Stratford and surrounding areas of Perth County; experience that has included participation in days of drug-related surveillance operations each week, (e.g., observing various residence locations and numerous individuals, known or believed to be involved in the area’s drug subculture), detecting patterns indicative of drug trafficking, handling confidential informants, participating in investigations involving undercover officers and/or the authorized placement of tracking devices on vehicles, and obtaining and/or executing drug-related search warrants. Most of that extensive experience has come from drug investigations dealing primarily with the trafficking of methamphetamine. Although officer Weyers joined the SPSCU with the rank of Detective Constable in 2015, he was promoted to the rank of Sergeant in January of 2018; 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 “DC Weyers”, reflecting the rank he held at the time.
  • DC Joshua Nahrgang also has been employed by the SPS since 2010, and has worked exclusively with the SPSCU since January of 2015. During his time with the unit, he has worked primarily on drug-investigations. Approximately 75 percent of those drug investigations have related to methamphetamine, and their primary focus has been the trafficking of methamphetamine. Like other members of the SPSCU, DC Nahrgang has received extensive training in drug investigation techniques, with a specific focus on what to look for in terms of physical observations, specific movements and patterns indicative of drug trafficking. The time he has devoted to drug investigations has included drug-related surveillance operations carried out almost 4-5 days each week, since 2015.
  • Jason William Clarke has been a police officer since 2004, and by 2016 had risen to the rank of Sergeant in charge of the SPSCU. (Since August of 2016, following the events described herein, he has been promoted to the rank of Inspector. Again, without intending any disrespect to the officer, I will refer to him throughout these reasons as “Sergeant Clarke”, in an effort to avoid possible confusion and remain focused on the relevant underlying events at the time of their occurrence.) Not surprisingly, given his rise to ranking officer within the SCSCU at the time of the investigation leading to the arrest of Mr Johnson, Sergeant Clarke also had significant experience relating to drug investigations and related investigation techniques, 70-80 percent of which have involved methamphetamine. That experience included the personal handling of some 30-50 SPSCU confidential informants, involvement in more than 50 investigations relating to methamphetamine, (five to seven of which involved the use of undercover officers purchasing methamphetamine), securing at least 10 search warrants relating to methamphetamine, executing at least 10-20 CDSA search warrants relating to methamphetamine, and participation in countless surveillance operations relating to suspected drug trafficking; e.g., targeting suspected dealers and residences associated with drug dealing, in an effort to note connections and patterns indicative of drug trafficking.
• The PCSCU is a designated unit within the Mitchell/Sebringvillle OPP detachment serving Perth County; i.e., the county of Ontario in which Stratford is located, and in respect of which Stratford serves as the relevant county seat. Like the SPSCU, the PCSCU specializes in the investigation of matters relating to stolen property and the possession and/or sale of controlled substances. There normally are two OPP officers assigned to the PCSCU. At material times leading up to the arrest of Mr Johnson, one of those OPP officers was Officer John Hurley.
• In the course of their drug investigation operations, members of the SPSCU and PCSCU liaise quite regularly with each other to discuss ongoing intelligence and joint projects. During such contact, members of the two units share information they have obtained, and the results of their investigations. Such information includes that provided by confidential informants, many of whom use illicit narcotics and/or associate with others who use and/or traffic in such controlled substances. The police rely on such individuals because they regularly have access to knowledge and understanding of every day practices and developments, within the local drug subculture, which the police otherwise generally would not be able acquire.
• As far as such confidential informants and the SPSCU are concerned:
  • Such confidential informants are members of the public who choose to offer information to the SPSCU for various reasons, including 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 the police making non-binding recommendations to the Crown Attorney that certain charges or potential charges being withdrawn or reduced.
  • The SPSCU 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. Each C.I. also is assigned a separate and unique identification number within the Registry.
  • Each individual CI is “handled” by a designated member of the SPSCU.
  • To promote candour and accuracy in relation to the provision of C.I. information to the SPSCU, members of the SPSCU routinely follow various practices that are individually administered, but similar in nature, to ensure that anyone offering to provide CI information to the SPSCU knows from the outset that the contemplated relationship between the CI and SPSCU will be subject to certain understandings and conditions.[^1] In particular:
    • Each CI is told the difference between a confidential informant and police agent, and steps are taken to confirm the CI understands that he or she will be acting only in the former capacity.
    • Each CI is warned, from the outset:
      • that no monetary payment or favourable consideration for any charges faced by the CI will be provided for any false information supplied by the CI;
      • that the provision of demonstrably false information by the CI will result in a definite “firing” or termination of the CI relationship with the SPSCU, with the individual never again being permitted to act in a CI capacity; and
      • that the CI may be charged for providing false or misleading information to the police.
  • Information provided by a particular CI to his or her assigned handler is recorded in the handler’s personal notebook and on a running “bio” (short for “biography”) maintained by that handler for the CI in question, allowing the handler to cross-reference such information with the results of later potentially corroborating developments or investigation, (e.g., the results of searching and cross-referencing other police records and databases available to the police, and/or surveillance observations), to check on the reliability of information the relevant C.I. has previously provided, and form reliability assessments in relation to each such informant. The bio also will include indications as to whether the information provided by the C.I. led to arrests, search warrants and/or seizures of narcotics and/or property.
  • While the actual “bio” documents accordingly are maintained by each handler, the SPSCU acts as a team and members accordingly share such information and reliability assessments with other members of the unit.
  • The SPSCU also has standing arrangements and practices in place to ensure that such CI information is documented and rapidly shared with all members of the SPSCU. In particular, each time a CI provides his or handler with information:
    • The particular CI’s handler will prepare, file and circulate, to all members of the unit, a written and searchable CI report or “contact sheet” outlining that further information provided by that CI.
    • All members of the SPSCU routinely review such written reports, but also make a practice of routinely discussing such obtained information shortly after its receipt; e.g., by daily open team discussions, at the beginning of each shift of the unit, designed to ensure that all team members are made aware of any information that may have been obtained without their direct involvement and/or during any temporary absences.
  • The SPSCU is not always able to determine whether or not particular CI information is accurate; e.g., because members of the unit may have no ability to observe what is going on inside a particular residence. However, if the unit is able to determine that a CI has provided demonstrably false or misleading information, he or she is no longer considered to be credible or trustworthy, and will no longer be used as a CI by the unit at any point in the future.
  • To ensure that all members of the SCU are made aware of any CI who has provided demonstrably false and therefore unreliable information to the police, (with a resulting permanent termination of any further CI relationship with the SCU), such developments are noted not only in the “bio” maintained by that CI’s handler, but also recorded in the unit’s CI Registry system, with the word “FIRED” being added to the entry in the C.I. Registry for that particular individual. By implication, the absence of such an entry in the Registry accordingly means that the particular C.I. is not known to have provided demonstrably false information to the police.
• On a date in late January of 2016, (which in my view occurred sometime between January 14 and January 24, 2016),[^2] Officer John Hurley of the PCSCU and another colleague from that unit had one of their regular liaison meetings with members of the SPSCU, including DC Weyers. During that particular meeting, Officer Hurley shared, with members of the SPSCU, information relating to Mr Johnson; information obtained information from one of Officer Hurley’s confidential informants, whom I will refer to herein as “CI-Hurley”.[^3] In particular, the information provided by Officer Hurley to members of the SPSCU during that meeting included the following:
  • Officer Hurley informed members of the SPSCU he had information indicating:
    • that the accused, Kody Johnson, was residing in Mitchell at a specified apartment location;[^4]
    • that Mr Johnson was driving a “White Blazer” vehicle;
    • that Mr Johnson was dealing/trafficking in methamphetamine;
    • that Mr Johnson was being supplied with methamphetamine by the same individual who was supplying methamphetamine to another individual named Edgar Stoll; and
    • that Mr Johnson repeatedly was picking up 2-3 ounces of methamphetamine from the Yatton area, (i.e., a small township to the northwest of Kitchener, Ontario), every 2-3 days.[^5]
  • Officer Hurley indicated that the information he was providing to the SPSCU about Mr Johnson residing in Mitchell, and about his Mr Johnson trafficking in methamphetamine in the manner described, had been provided by a confidential informant; i.e., CI-Hurley.
  • Officer Hurley also disclosed, to some extent, a “pedigree” for CI-Hurley, in terms of indications that the CI in question was reliable. At a minimum, in that regard, Officer Hurley informed the SPSCU that CI-Hurley had provided information which had led to a number of arrests.[^6]
• In late January of 2016, members of the SPSCU therefore began an investigation, related to possible trafficking in methamphetamine, involving the accused.[^7] That investigation then continued up until the time of Mr Johnson’s arrest on February 10, 2016.
• That investigation was furthered by information received directly from a CI handled by DC Nahrgang; i.e., a CI hereinafter referred to as “CI-Nahrgang”. In that regard:
  • By February of 2016, DC Nahrgang had been working with CI-Nahrgang, (who was entrenched in Stratford’s drug subculture as a user of methamphetamine and marihuana), for at least eight months. However, the CI in question had been working with the SPSCU for longer than that, although DC Nahrgang was unable, while testifying, to confirm exactly how long.
  • At the outset of his relationship with CI-Nahrgang, DC Nahrgang had reiterated the unit’s standard initial relationship clarifications, confirmations and warnings outlined above.
  • By February of 2016, DC Nahrgang considered CI-Nahrgang to be a reliable source of information, and had shared information in that regard with other members of the unit. In particular:
    • CI-Nahrgang had provided DC Nahrgang with information on several occasions. That information had led to the arrest of at least two persons on charges relating to the trafficking of methamphetamine, (at least one of whom had been convicted in relation to such charges), and the issuing of two CDSA search warrants leading to the discovery of methamphetamine. (One of the aforesaid arrests stemmed from the execution of those warrants, while the other did not.) In those earlier cases, the information supplied by CI-Nahrgang also had been corroborated by independent police investigation. Moreover, DC Nahrgang was able to say that he had never acted on information supplied by CI-Nahrgang that subsequently had been found to be incorrect.
    • DC Nahrgang was able to confirm that CI-Nahrgang’s motivation for providing consideration in this particular case was “charge consideration”; i.e., the hope of police making recommendations to the Crown Attorney for a withdrawal or more lenient sentencing in relation to charges CI-Nahrgang was facing had been facing.
    • CI-Nahrgang had a criminal record, but it caused DC Nahrgang to have no concerns regarding the CI’s credibility and reliability as it did not include any crimes of deceit.
    • Up to and including the time of this investigation, there had been no indication that CI-Nahrgang had ever provided the SPSCU with any information that was demonstrably false or misleading.
  • In and early February of 2016, CI-Nahrgang contacted DC Nahrgang on three separate dates, with information relating to this investigation. In that regard:
    • The first occasion occurred within ten days prior to the arrest of Mr Johnson and prior to the first surveillance carried out in relation to this investigation; i.e. at some point during the period of February 1-3, 2016.
    • The second occasion occurred within the ten days prior to Mr Johnson’s arrest but after the first surveillance carried out in relation to this investigation; i.e., at some point during the period of February 3-10, 2016.
    • The third occasion occurred within the 24 hour period immediately prior to Mr Johnston’s arrest on February 10, 2016.
    • DC Nahrgang created a separate “contact sheet” in relation to each of the three occasions, and the information set forth in the three sheets was promptly shared with all other members of the SPSCU in writing and through verbal discussion. In the result, all members had the information from the first occasion prior to the surveillance carried out on February 3, 2016, and the information from all three occasions prior to the surveillance carried out on February 10, 2016.
  • On the first such occasion, CI-Nahrgang provided DC Nahrgang with the following information:
    • that “Kody from Mitchell”, (whom DC Nahrgang understood from CI-Nahrgang to be Kody Johnston), had come to the residence of “Harley”, (whom DC Nahrgang understood from CI-Nahrgang to be Harley Schneider), the night before; and
    • that “Harley” was getting his “shit”, (i.e., which DC Nahrgang understood from CI-Nahrgang to be methamphetamine), “from Kody”.
  • Dc Nahrgang understood from the aforesaid information, conveyed by CI-Nahrgang on that first occasion of information being communicated in relation to this investigation, that the information had been provided to CI-Nahrgang directly by Harley Schneider, who was indicating that the accused was supplying methamphetamine to Mr Schneider. Mr Schneider and his residence were well known to members of the SPSCU, including DC Nahrgang, for their connections with methamphetamine. In that regard:
    • Mr Schneider had been the subject of numerous prior methamphetamine-related investigations, from at least 2010 onwards, (i.e., from the time DC Nahrgang had joined the SPS), which had resulted in Mr Schneider having numerous convictions for trafficking in methamphetamine.
    • To members of the SPSCU, including DC Nahrgang, Mr Schneider accordingly was a well-known dealer in methamphetamine. Indeed, not only had Mr Schneider been the subject of numerous previous methamphetamine-related arrests, but one of those had been effected by DC Nahrgang himself. DC Nahrgang also had participated in the execution of two CDSA search warrants at the residence of Mr Schneider, both of which had led to the discovery of methamphetamine.
    • All of that information relating to Mr Schneider, (including the entirety of the files relating to those previous investigations, officer notes, and the nature of resulting offences, arrests and convictions), was available to the unit on their database, and was reviewed again when this latest information about Mr Schneider was received.
  • On the second such occasion, CI-Nahrgang provided DC Nahrgang with the following information:
    • that “Kody came to Harley’s last night”;
    • that “Harley was out”; and
    • that “Harley” was “waiting for Kody to come back with more shit”.
  • DC Nahrgang understood, in relation to the aforesaid information supplied by CI-Nahrgang on that second occasion relating to this investigation:
    • that the information had been obtained, at least in part, by CI-Nahrgang personally attending at the residence of Mr Schneider, looking to purchase more methamphetamine,[^8] at which time Mr Schneider provided CI-Nahrgang with those indications;[^9]
    • that “Kody” once again referred to Mr Johnson and that “Harley” once again referred to Mr Schneider; and
    • that CI-Nahrgang was indicating Mr Schneider had informed him or her that Mr Johnson had supplied Mr Schneider with methamphetamine the night before, that Mr Schneider nevertheless had exhausted that supply of methamphetamine, and that Mr Schneider was waiting for Mr Johnson to come back with more methamphetamine.[^10]
  • On the third occasion of CI-Nahrgang providing DC Nahrgang with information relating to this investigation, (which occurred less than 24 hours prior to Mr Johnson being arrested on February 10, 2016), CI-Nahrgang informed DC Nahrgang that “Harley is out and going to be re-loading at some point today”. In that regard:
    • DC Nahrgang was given to understand that the information in question had been supplied to CI-Nahrgang directly by Mr Schneider
    • DC Nahrgang once again understood that “Harley” referred to Mr Schneider;
    • DC Nahrgang also understood that the reference to “re-loading” was a reference to Mr Schneider getting more methamphetamine
    • While CI-Nahrgang did not expressly indicate on that occasion that Mr Schneider would be obtaining the contemplated further supply of methamphetamine from Mr Johnson, DC Nahrgang believed that the supplier would be Mr Johnston, and that CI-Nahrgang had not mentioned Mr Johnson expressly again because he or she already had identified Mr Schneider’s supplier of methamphetamine on the two earlier occasions noted above.
• The SPSCU’s investigation relating to Mr Johnson also was furthered by information received directly from a CI handled by DC Weyers; i.e., a CI hereinafter referred to as “CI-Weyers”. In that regard:
  • By February of 2016, DC Weyers been working with CI-Weyers, (who was a user of methamphetamine and therefore involved in Stratford’s drug subculture), for over a year.
  • At the outset of his relationship with CI-Weyers, DC Weyers had provided CI-Weyers with the unit’s standard initial relationship clarifications, confirmations and warnings outlined above.
  • By February of 2016, DC Weyers considered CI-Weyers to be a reliable source of information. Through the course of numerous meetings and telephone conversations with DC Weyers, he or she had provided the police with information leading to at least five arrests; i.e., two relating to persons in respect of whom there were outstanding arrest warrants, and three others which led to seizures of methamphetamine and at least one methamphetamine-related conviction.
  • In those earlier cases, (including those not resulting in convictions), the information supplied by CI-Weyers had been corroborated by independent police investigation. In return, CI-Weyers had received consideration, although DC Weyers was unable to say whether that took the form of monetary payments or the police recommending to the Crown that CI-Weyers receive favourable treatment in relation to charges he or she had been facing.
  • CI-Weyers had a criminal record. In that regard, DC Weyers felt unable to disclose details for fear of disclosing the CI’s identity, but was able to say that the particular criminal record of CI-Weyers did not include any convictions for crimes involving deceit.
  • Up to and including the time of this investigation, there had been no indication, or corresponding “bio” entries, that CI-Weyers had ever provided the SPSCU with any information that was demonstrably false or misleading.
  • Having regard to all of the above considerations, DC Weyers considered CI-Weyers to be a “completely reliable” source of information.
  • Less than 24 hours before Mr Johnson’s arrest at 6:51pm on February 10, 2016, CI-Weyers provided DC Weyers with information that included the following indications:
    • that Harley Schneider was living at 61 Cawston Street in Stratford, where CI-Weyers had attended the previous night;
    • that Schneider had sold an identified person “half a zip of meth”;
    • that Schneider had indicated to CI-Weyers that he was getting “shit”, (i.e., methamphetamine), “through Kody Johnson”; and
    • that Schneider had indicated to CI-Weyers that he would be getting “dropped shit”, (i.e., that he would be supplied with more methamphetamine), “today”.[^11]
  • At the same time, CI-Weyers provided further detailed information relating to Harley Schneider which DC Weyers felt unable to disclose during the voir dire hearing before me, for fear of disclosing the identity of CI-Weyers.
  • However, DC Weyers was able to confirm that all the disclosed and undisclosed information provided by CI-Weyers was based on first hand observations and direct discussions with Harley Schneider – although the CI’s information about Mr Johnston was second-hand, insofar as it was based on indications to the CI by Mr Schneider.
  • The information provided by CI-Weyers to DC Weyers was promptly shared with all other members of the SPSCU.
  • The SPSCU was able to corroborate some of the information provided by CI-Weyers immediately, through information already in the unit’s possession. (For example, members of the unit already had confirmed that Schneider was living at 61 Cawston Street.) According to DC Weyers, other details of the information provided by CI-Weyers were confirmed over the course of time, prior to Mr Johnson’s arrest.
• The relevant investigation also was furthered by efforts made by the SPSCU on February 3, 2016, to conduct surveillance for the purpose of determining whether or not information the unit had received about Mr Johnson could be corroborated. In doing so, members of the surveillance team, (including Sergeant Clarke, DC Serf, DC Weyers, DC Nahrgang and two other officers), were in separate unmarked vehicles, and employed the usual practice of the SPSCU, during such operations, of speaking to each other by radio to communicate and share their observations in “real time”, with notes of such observations being made by a designated “scribe” or central note taker also taking part in the surveillance.[^12] As for police observations made that day:
  • While some officers (including DC Nahrgang) proceeded west from Stratford towards Mitchell, where they planned to initiate surveillance of Mr Johnson, other officers (including DC Serf) took up surveillance positions in the west end of Stratford near 61 Cawston Street; i.e., an apartment building containing 20-50 residential units, including the known residence of Harley Schneider. In that regard:
    • The apartment building in question has two stories and, although it has a central entrance, its ground floor units also are capable of being entered directly via unit doors leading to and from the outside.
    • The building itself generally is in the shape of an inverted “L”, with one arm of the “L” running in an west-east alignment parallel to Cawston Street, (which runs in an easterly direction from the southern terminus of Forman Street), while the other arm of the building generally extends, from the eastern end of the west-east section, in a north-south alignment at a right angle to Cawston Street.
    • There is a separate parking lot associated with the apartment building at 61 Cawston Street. The lot is located to the west of the building, and is accessed by a short drive leading south off Cawston street, immediately to the east of where Forman Street meets Cawston Street.
    • There are a number of other apartment buildings in the immediate vicinity. In particular:
      • One is an apartment building known as 1 Forman Street, which runs in an extended northwest to southeast direction, to the southwest of the apartment building at 61 Cawston Street. It has its own adjacent parking lot, which is separated from that of 61 Cawston Street by a grass-covered boulevard, and which is accessible by a separate drive leading south off Cawston Street from the area where that street is met by Forman Street from the north.
      • Another is an apartment building further to the west of 1 Forman Street, known as 29 Buckingham Street. As suggested by its address, direct vehicular access to that building and its separate parking lot, (on the west side of that building), is from Buckingham Street, which runs in a north-south direction parallel to Forman Street, a block to the west.
      • Another apartment building, with its own separate parking lot, is situated along Cawston Street to the east of 61 Cawston Street.
    • The location of Mr Schneider’s unit was known to be on the ground floor of the apartment building at 61 Cawston Street, on its “interior” side; i.e., the side of the building not facing Cawston Street, or the apartment building lying to the east. In particular, Mr Schneider’s unit was known to be located on the ground floor, near the interior angle where the building’s general west-east alignment turns north-south. Because it was a ground floor unit, it had a door leading directly to the open lawn area (with walkways) lying immediately to the southwest of the building, and to the immediate east of the building’s parking lot. In other words, it was possible for someone to park in the building’s parking lot and walk directly to and from Mr Schneider’s unit without having to walk around or enter other parts of the apartment building.
  • At 12:25pm, as DC Nahrgang was proceeding westbound on Highway 8 towards Mitchell, to embark on surveillance of Mr Johnston, he noticed a passing black Honda vehicle, (“the black Honda”), driven by Kody Johnson, and with Shannon Montgomery in its front passenger seat, heading in the opposite direction on Highway 8, towards Stratford.[^13] As emphasized by defence counsel in cross-examination, the black Honda had fairly dark tinted windows and was being passed by DC Nahrgang as his vehicle and the black Honda were travelling towards each other at or around the prevailing speed limit of 80kph, both of which would have made such a positive identification of the vehicle’s occupant or occupants more challenging. However, DC Nahrgang testified and I accept that he nevertheless was able to identify Mr Johnson and Ms Montgomery at the time, as indicated in his contemporaneous surveillance note and his oral testimony during the voir dire. In that regard:
    • DC Nahrgang candidly acknowledged that others in his position might not have been able to make the identification he did.
    • At the time, however, DC Nahrgang already was very familiar with Mr Johnson and Ms Montgomery for a number of reasons and, in his words, recognizing them at the time through quick observation was not unlike his ability to easily recognize his “friends”. In that regard:
      • DC Nahrgang already had known Mr Johnson long before this particular drug investigation, not through DC Nahrgang’s experience as a police officer, but through prior familiarity with Mr Johnson which DC Nahrgang had acquired as a citizen living and working in the same area.[^14]
      • DC Nahrgang also had prior familiarity with Ms Montgomery, based on his civilian and police experience. Prior to entering into policing, DC Nahrgang had worked at a lumber yard in Mitchell with Ms Montgomery’s father, and occasionally would see Ms Mitchell there as well. Moreover, while an officer cadet with the Huron County OPP from 2009 until early 2010, DC Nahrgang had come to learn of Ms Montgomery’s involvement in the area’s drug subculture, including her known association with two other well-known members of that drug-subculture; i.e., Mr Feddes and Mr Stoll. In that regard, there also had been an occasion wherein DC Nahrgang also had been called upon to fingerprint Ms Montgomery while she was in custody.[^15]
    • The relevant identification of Mr Johnson and Ms Montgomery was made shortly after noon, when the sun would have been at its highest.
    • As the central note-taker for the surveillance operation that day, DC Nahrgang did indeed make a brief contemporaneous note of his reported identification before turning his vehicle around to follow the black Honda back into Stratford, and the note expressly made reference to DC Nahrgang having seen both Mr Johnson and Ms Montgomery in the vehicle. I see no reason why DC Nahrgang would have had any inclination or incentive to mislead or risk misleading his fellow members of the surveillance team at the time; i.e., by telling those members he had made a positive and definite identification of the vehicle’s occupants, in circumstances where he actually was uncertain or engaged in mere speculation, and there was a strong probability of the vehicle’s actual occupants being confirmed through further surveillance when the vehicle arrived at its destination. Moreover, had DC Nahrgang simply been speculating as to the vehicle’s occupants at the time based solely on the vehicle’s licence plate and registered owner, that may have led him to assume that Mr Johnson was driving a vehicle registered to Mr Johnson, but it would not naturally have justified any further assumption that Ms Montgomery would be in the vehicle as well. In my view, the more sensible conclusion is that DC Nahrgang actually saw and recognized Mr Johnson and Ms Montgomery in the black Honda when and as DC Nahrgang said he did, for the reasons he outlined in his testimony.
  • As the black Honda was then followed by members of the SPSCU back into Stratford, (e.g., with DC Nahrgang turning his vehicle around after passing the black Honda), a police check of its noted licence plate number, (BYJX 900), using the “PARIS” database made available to police by the Ministry of Transportation, confirmed that the vehicle was registered to Kody Johnson.
  • By 12:48pm, the black Honda was seen driving on Cawston Street, towards the apartment building at 61 Cawston Street where Mr Schneider lived, and then was seen turning into the lane and parking lot for that particular apartment building.
  • Police were unable to make surveillance observations of precisely where the black Honda went in that parking lot at 61 Cawston Street. In particular, DC Serf, who saw the black Honda pull into that drive and parking lot, was not located in a position where he could see whether either of the vehicle’s occupants exited the vehicle, where they might have gone, or whether other individuals may have approached the vehicle, while the black Honda remained in that parking lot. However, from his vantage point, DC Serf could see that no one walked west or southwest from the parking lot at 61 Cawston Street towards the apartment buildings at 27 Buckingham Street or 1 Forman Street.[^16]
  • At 1:08pm, (i.e., 20 minutes after the black Honda pulled into the parking lot of 61 Cawston Street), the black Honda was seen exiting the parking lot at 61 Cawston Street, with two persons inside.
  • Using a number of vehicles, officers participating in the surveillance operation then continued to follow and monitor the movements of the Black Honda and its occupants, with members of the surveillance team being able to see, from time to time, that those two occupants were still Ms Montgomery and Mr Johnson.[^17]
  • After using the drive through service of a fast food restaurant in Stratford, at 1:17pm, the black Honda then proceeded northwest out of the city, travelling along highways and roads while making short stops in a number of smaller towns and villages.
  • Initially, the black Honda proceeded northwest from Stratford to the town of Clinton, along Highway 8.
  • At 2:48pm, the black Honda entered the parking lot of a gas station in Clinton, and was seen pulling up to the fueling pumps there. However, there were no observations possible and/or made at the time as to who was in the vehicle or who may have exited the vehicle. The vehicle pulled away approximately seven minutes later, turning northeast on Highway 4, towards the village of Wingham.
  • The black Honda then continued on Highway 4 through Wingham on to the village of Teeswater, where it pulled to the side of the village’s main street, (still Highway 4, but also known as Clinton Street within Teeswater), at approximately 3:00pm. At 3:04pm, Shannon Montgomery exited the parked vehicle, and ran across the street to an apartment located above a store located at 16 Clinton Street, which was an unfamiliar address to the police. Just 10 minutes later, (i.e., at 3:14pm), Ms Montgomery returned to the Black Honda. Shortly thereafter, (i.e., at 3:16pm), the vehicle then turned back the way it had come; i.e., leaving Teeswater by initially proceeding southbound on Highway 4, back towards Wingham.
  • At some point, however, the black Honda then turned west and proceeded to the village of Lucknow, where it stopped on Campbell Street. At that time, Shannon Montgomery once again exited the parked vehicle. In particular, at 3:48pm, she proceeding on foot to a nearby bank, in which she stayed for approximately six minutes. At 3:54pm, she exited the bank, crossed the street and, at 3:55pm, entered an apartment located above a ladies fashion store, where she remained for approximately five minutes. At 4:00pm, Shannon Montgomery exited the apartment and got back into the black Honda, which then proceeded to 702 Wheeler Street in Lucknow, arriving there at 4:07pm. That was an address where Mr Johnson was thought to reside with Ms Montgomery when not residing at his other apartment location in Mitchell, which Mr Johnson shared with two other people.[^18]
  • Police thereafter discontinued their surveillance operation that day.
• Having regard to the police observations made on February 3, 2016, members of the SPSCU, including DC Serf, DC Weyers, DC Nahrgang and Sergeant Clarke, believed they provided corroboration of received CI information. In particular:
  • Mr Johnson apparently had travelled from Mitchell into Stratford to the residence of Harley Schneider; and
  • The number of brief stops and short duration visits in which Mr Johnson and Ms Montgomery participated, on their indirect route from Stratford to Lucknow, and within Lucknow, were consistent with SPSCU experience of drug trafficking activity; i.e., occasions where the parties involved are not meeting socially, for more extended periods of time consistent with social visits, but are instead focused on the rapid completion of numerous illicit drug transactions, (to exchange narcotics or cash related to the purchase or sale of narcotics), where none of the participating individuals have an interest in such dealings being prolonged or noticed.[^19]
  • Viewed in the context of such apparent drug trafficking activity, an otherwise seemingly innocuous stop at a bank took on added significance to the experienced drug investigation officers observing it, given their familiarity with drug traffickers accumulating significant cash from drug sales which they wish to deposit and secure, and/or needing further substantial amounts of cash to purchase more narcotics.
• Between February 3 and February 10, 2016, the SPSCU continued to receive CI information, including that noted above, from CI-Nahrgang and CI-Weyers, providing what seemed to be very specific indications, during the 24 hours prior to Mr Johnson’s arrest, that he would be supplying further methamphetamine to Mr Schneider on February 10, 2016. In the circumstances, members of the SPSCU took further investigative steps to determine whether the additional CI information they were receiving could be corroborated. In particular, further surveillance operations, (involving Sergeant Clarke, DC Serf, DC Weyers, DC Nahrgang and another officer), were organized for February 10, 2016. Police observations and developments that day, (shared and recorded by a central note taker in the usual manner described above),[^20] included the following:
  • From approximately 3:29pm onwards, officers set up near the residence of Mr Schneider at 61 Cawston Street in Stratford, in an effort to observe Mr Schneider’s “comings and goings” from the residence that day, and who might be attending there. They were, in particular, interested in seeing if Mr Johnson would travel to Mr Schneider’s residence that day, in a manner consistent with the CI information that had been received.
  • Between 3:29pm and 3:44pm, a few people known to the SPSCU were seen attending Mr Schneider’s residence.
  • At 3:44pm, Mr Schneider then was seen leaving his apartment building on a bicycle, heading eastbound into the centre of Stratford. While maintaining a surveillance presence at or near 61 Cawston Street, the police also continued to follow Mr Schneider’s movements through downtown Stratford to a housing complex, containing approximately 40 units, located in the south end of Stratford at 769 Downie Street. Members of the SPSCU were very familiar with that housing complex, and a number of specific units therein. In particular:
    • One unit was the residence of Bill Sneddon, whom the SPSCU knew very well from a number of previous drug investigations, charges and prosecutions relating to CDSA offences, (including simple possession and possession for the purpose of trafficking), and other charges. That knowledge also included CI information obtained in the course of other investigations, repeatedly indicating and/or confirming that Mr Sneddon was very involved in Stratford’s drug subculture, and the trafficking of methamphetamine in particular.[^21]
    • Another unit, (situated approximately 25-30 feet from that of Mr Sneddon), was the residence of Korrine McCormack and her sister, who were also the subject of SPSCU investigations relating to the trafficking of methamphetamine.
  • At 4:02pm, Mr Schneider arrived at that housing complex, and was seen entering Mr Sneddon’s residence.
  • Between 4:02pm and 5:37pm, (i.e., approximately 95 minutes), Mr Schneider remained in Mr Sneddon’s residence while police observed what DC Weyers described as “a lot of movement” involving numerous persons quickly arriving at and departing from the area of the residences of Mr Sneddon and Ms McCormack and/or the parking area near those residences, without the police being able to see or confirm precisely which of the two residences such people were visiting. Such observations included the following:
    • an unknown male, on a bicycle, visited that area at 4:42pm;
    • a blue Hyundai vehicle, occupied by a person or persons unknown, visited that area at 4:59pm;
    • an unknown male visited that area on foot at 5:05pm; and
    • at approximately the same time, (i.e., 5:04pm), Shane Hilson, (another individual familiar to members of the SPSCU, through past investigations, who had a history of involvement in methamphetamine and cocaine trafficking operations as a known distributor of those particular narcotics), drove up in a vehicle, parked in front of Mr Sneddon’s residence at 5:04pm, and drove away at 5:15pm; i.e., approximately 11 minutes later.
  • Members of the SPSCU, (including DC Weyers and Sergeant Clarke in particular), drew a number of inferences from their observations during that 4:02pm to 5:37pm time period. In that regard:
    • Members of the SPSCU knew that Mr Sneddon and Mr Hilson were both individuals trafficking in methamphetamine at the “lower end” of methamphetamine distribution chains than Mr Schneider.
    • In the circumstances, members of the SPSCU believed that Mr Sneddon and Mr Hilson were persons likely to receive methamphetamine from Mr Schneider and/or pay Mr Schneider for that product, (whether in relation to past supply that had been “fronted” on credit, current supply, and/or anticipated supply), such that Mr Schneider travelling to the residence of Mr Sneddon for such purposes would not be unusual.
    • Although the SPSCU members were unable to see what objects or currency may or may not have been exchanged inside Mr Sneddon’s residence, the quick arrival and departure at the location by Mr Hilson, in particular, strongly suggested to members of the SPSCU that Mr Schneider had supplied methamphetamine to Mr Hilson and/or received money dropped off by Mr Hilson that would in turn permit Mr Schneider to “reload” on methamphetamine; i.e., to use such money to purchase further quantities of methamphetamine from Mr Schneider’s own supplier, (said to be Mr Johnson), in order to continue Mr Schneider’s trafficking activity.
    • As Sergeant Clarke emphasized in his testimony, Mr Schneider travelling to another location than his residence that day, to distribute methamphetamine and/or collect money to be used for paying Mr Johnson, was also consistent with an experienced trafficker like Mr Schneider wanting to keep his general trafficking activity away from his residence on the day in question; i.e., so as not to attract police attention to a location where Mr Johnson was expected to arrive with a substantial quantity of methamphetamine.
    • Having regard to all such circumstances and inferences, there was a further inference, particularly on the part of Sergeant Clarke, that Mr Schneider would likely contact Mr Johnson, after his activities at Mr Sneddon’s residence, to let Mr Johnston know that he now was in a position to pay for a further delivery of methamphetamine later that day.
  • At 5:37pm, a cab arrived at Mr Sneddon’s residence. The cab turned out to be for Mr Schneider. In particular, although Mr Schneider had travelled to Mr Sneddon’s residence by bicycle, Mr Schneider exited Mr Sneddon’s residence, put his bicycle in the cab’s trunk, got into the cab’s front seat, and set off in the cab travelling towards Mr Schneider’s residence at 61 Cawston Street.
  • At 5:45pm, the cab transporting Mr Schneider and his bicycle arrived at 61 Cawston Street. Mr Schneider retrieved his bicycle from the trunk of the can, and returned to his residence as the cab drove away.
  • At that point, members of the SPSCU unit and surveillance team, working closely with each other and discussing the results of the investigation to date, (including the aforesaid CI information, the surveillance observations made on February 3 and 10, 2016, and the other information in the unit’s possession from other investigations concerning the persons and locations seen during that surveillance), were “putting matters together over the radio”, (as Sergeant Clarke described it), and arrived at a general consensus that there were would be reasonable and probable grounds to stop and arrest Mr Johnson for possession of a controlled substance, if he was seen to be approaching Mr Schneider’s residence later that day; i.e., in a manner consistent with and therefore corroborative of the CI information indicating that Mr Schneider would be “reloading” his supply of methamphetamine that day through a further delivery of methamphetamine by Mr Johnson to Mr Schneider. In that regard, members of the SPC discussed and relied upon considerations that included the following:
    • information already in the possession if the SPSCU from prior drug investigations relating to individuals such as Harley Schneider, Bill Sneddon and Shane Hilson, and locations such as the residences of Mr Schneider and Mr Sneddon, which members of the unit knew to be associated with the trafficking of methamphetamine;
    • the CI information received from OPP Officer Hurley, indicating that Mr Johnson was residing in Mitchell and trafficking in large quantities of methamphetamine, (i.e., routinely obtaining and distributing 2-3 ounces of the substance every 2-3 days);
    • additional CI information that Mr Schneider was being supplied with methamphetamine by Mr Johnson, and that Mr Schneider was going to “reload” his supply of methamphetamine through a further delivery from Mr Johnson that day;
    • the surveillance observations of February 3, 2016, which had been consistent with Mr Johnson travelling into Stratford from Mitchell, going directly to the residence of Mr Schneider to supply Mr Schneider with methamphetamine, and engaging in further trafficking activity en route from Stratford to Lucknow, thereby apparently corroborating received CI information;
    • the surveillance observations of February 10, 2016, which were consistent with Mr Schneider trafficking in methamphetamine, including his apparently distributing methamphetamine and/or receiving money for methamphetamine that day, while at the residence of Mr Sneddon, which in turn would be consistent with Mr Schneider requiring further methamphetamine and/or being able to purchase more methamphetamine later that day, all of which also seemed to corroborate the additional CI information received by the unit; and
    • a belief that final observations of Mr Johnson coming into Stratford and proceeding towards the residence of Mr Schneider that day would be particularly significant, insofar as they too would seem to corroborate the CI information indicating that Mr Schneider was receiving his methamphetamine from Mr Johnson, and that Mr Schneider would have his supply of methamphetamine “reloaded” by receiving a delivery of methamphetamine that day.[^22]
  • Members of the unit considered it inadvisable to wait until Mr Johnson actually turned into the parking lot of 61 Cawston Street again, and/or until Mr Johnson actually entered Mr Schneider’s residence, before carrying out the contemplated detention and arrest of Mr Johnson. In particular, that specific location was well known to police as a confined space surrounded by methamphetamine users and others who would recognize the police, and make it difficult for the police to set up there or effect a safe and proper arrest in that location.[^23] Moreover, as the surrounding apartment buildings on Cawston Street, Forman Street and Buckingham Street also contained numerous targets of ongoing SPSCU drug investigations and intermittent surveillance operations, members of the unit also did not want to “burn” their covert surveillance vehicles; i.e., by taking action that would make such vehicles more easily recognized and familiar to such current or potential targets in the future. Furthermore, members of the SPSCU also did not want to risk Mr Johnson making it inside Mr Schneider’s residence, as that would afford an opportunity for disposal of the methamphetamine Mr Johnson was believed to be delivering to Mr Schneider.[^24]
  • Members of the SPSCU therefore formulated a plan to monitor the approach routes to Mr Schneider’s residence, (especially the route travelled by Mr Johnson to Mr Schneider’s residence on February 3, 2016), with a view to stopping and arresting Mr Johnson if and when he could be identified approaching the residence of Mr Schneider later that day. That plan included putting arrangements in place whereby:
    • DC Weyers was positioned on Huron Street, (also known as Highway 8), which is the principal roadway leading into Stratford from the northwest; i.e. from the area in which the communities of Mitchell and Lucknow were located. DC Weyers was stationed in that location, west of the intersection of Huron Street and Forman Street, (i.e., the street leading directly south from Huron Street to Cawston Street, where Forman Street terminates at or quite near the location of 61 Cawston Street), with a view to observing and identifying Mr Johnson if he used that route, (as he had on February 3, 2016), to proceed from the northwest into Stratford and towards the residence of Mr Schneider.
    • As DC Nahrgang was operating the only covert police surveillance window without tinted windows, he was positioned so as to increase the possibility of making a positive identification of Mr Johnson if DC Weyers was unable to do so. In particular, DC Nahrgang positioned himself and his vehicle near the intersection of Huron Street and Forman Street; i.e., an area which was illuminated by streetlights and a nearby fast food restaurant, and where Mr Johnson was likely to slow and turn his vehicle in the direction of Mr Schneider’s residence, if Mr Johnson was proceeding there from areas to the northwest of Stratford, and travelled the same route he had taken on February 3, 2016.
    • At least two other SPSCU surveillance vehicles, including one operated by DC Serf, and one operated by Sergeant Clarke, were positioned in the immediate vicinity of 61 Cawston Street, and the residence of Mr Schneider, to stop and arrest Mr Johnston if he was seen approaching that location.
  • At 6:48pm, DC Weyers was positioned on Huron Street in the aforesaid location when he observed Mr Johnson’s black Honda driving eastbound on Huron Street; i.e., travelling from the area of Mitchell, (located to the northwest), into the city of Stratford. At the time, DC Weyers was able to positively identify the black Honda as the one registered to Mr Johnson, and the vehicle which members of the SPSCU had observed and followed during the surveillance carried out on February 3, 2016. DC Weyers was not able to identify the drive of the black Honda as it passed at speed, as it was dark out and the vehicle also had tinted windows. DC Weyers nevertheless did then observe the black Honda turn right/south off Huron Street onto Forman Street.
  • At 6:49pm, DC Nahrgang was positioned, as noted above, near the well-lit intersection of Huron Street and Forman Street. At that time, as the black Honda slowed and made its turn southbound onto Forman Street, and drove slowly past DC Nahrgang before accelerating again on Forman Street, DC Nahrgang was able to confirm that the black Honda was indeed Mr Johnson’s vehicle, (i.e., the same vehicle observed by members of the SPSCU on February 3, 2016), that the driver of the vehicle was its sole occupant, and that Mr Johnson was the driver. At the time of making that positive identification, DC Nahrgang and Mr Johnson were no more than 15 feet apart, and the illumination in the area allowed DC Nahrgang to see clearly that the driver of the black Honda was Mr Johnston. DC Nahrgang radioed those observations to all other members of the SPSCU participating in the operation, including Sergeant Clarke.[^25] When that happened, the accused was less than 200 meters from the residence of Mr Schneider, and driving southbound on Forman Street towards it.
• At that point, Sergeant Clarke, (who had been part of the SPSCU surveillance team that entire day, and therefore participating directly and immediately in all of the radio reported observations and discussions of SPSCU members), concluded, as the ranking officer in charge of the operation, that there were reasonable and probable grounds to stop Mr Johnson’s vehicle and arrest Mr Johnson for possession of a controlled substance. Sergeant Clarke therefore immediately directed a vehicle stop and arrest of Mr Johnson on that basis.
• Sergeant Clarke’s decision in that regard was based on the totality of the entire investigation to date, and the aforesaid team discussions with other members of the SPSCU. In that regard:
  • Sergeant Clarke independently confirmed that he had been involved in the investigation relating to Mr Johnson from the outset, (i.e., from the time the SPSCU received CI information concerning Mr Johnson from Officer Hurley and directly from its own confidential informants), that all information relating to the investigation was shared with him and all other members of the team as it was received, that he was a participant in the surveillance operations conducted on February 3 and 10, 2016, and that he similarly participated in the contemporaneous team discussions relating to the investigation. In that regarded, he recounted, at length, the extended discussion he and all members of the team had over the radio on February 10, 2016, in the time between their observations of Mr Schneider that day and waiting for the possible arrival of Mr Johnson, reviewing all of the information available to the unit and the inferences to be drawn in that regard.[^26]
  • Not surprisingly, the considerations individually relied upon by Sergeant Clarke therefore mirrored those already set forth above, in terms of the consensus in that regard reached by members of the SPSCU during their team discussions leading up to and immediately before Mr Johnson’s arrest.
  • Without limiting the generality of the foregoing, (and at the unavoidable risk of repetition), considerations factoring into that formation of reasonable and probable grounds, in the mind of Sergeant Clarke, therefore included the following:
    • the CI information relayed to the SPSCU by Officer Hurley, indicating, inter alia, that Mr Johnson was living in an apartment above a bank in Mitchell and trafficking in methamphetamine at the multi-ounce level;
    • the further CI information received from the two confidential informants being handled by DC Nahrgang and DC Weyers, indicating, inter alia, that Mr Schneider was trafficking in methamphetamine and that Mr Johnson was supplying Mr Schneider with methamphetamine;[^27]
    • indications received from DC Nahrgang and DC Weyers that their respective confidential informants were considered reliable and proven in the past;
    • the information already possessed by the SPSCU, through previous investigations, concerning the methamphetamine trafficking of Mr Schneider;
    • the surveillance observations made on February 3, 2018, consistent with Mr Johnston travelling into Stratford from Mitchell to attend the residence of Mr Schneider, before then engaging in movements consistent with further trafficking in methamphetamine, thereby apparently corroborating the CI information that had been received by the unit;
    • the specific indications, (in the aforesaid CI information received from the confidential informants being handled by DC Nahrgang and DC Weyers), and related inferences, that Mr Schneider was expecting a further delivery of methamphetamine from Mr Johnson on or about February 10, 2016;
    • the surveillance observations made on February 10, 2016, (combined with the unit’s previously acquired knowledge of individuals such as Mr Sneddon and Mr Hilson), consistent with Mr Schneider distributing methamphetamine and/or picking up money for methamphetamine, (while wisely avoiding drawing possible police attention to his own residence), such that he then would need to obtain more methamphetamine and have the ability to pay for another delivery of methamphetamine from Mr Johnson; and
    • the observations then made, immediately before the arrest, confirming that Mr Johnson was proceeding from Mitchell directly towards the residence of Mr Schneider, (i.e., in the same manner as he had done on February 3, 2016), thereby apparently providing further and final corroboration of the received CI information that Mr Johnson was making a further delivery of methamphetamine to Mr Schneider that day.[^28]
• Acting in accordance with Sergeant Clarke’s direction, but also independently thinking there were reasonable and probable grounds to arrest Mr Johnson for possession of a controlled substance,[^29] DC Serf proceeded to detain and arrest Mr Johnson at approximately 6:51pm on February 10, 2016. In that regard:
  • From 3:29pm onwards, DC Serf had been maintaining a surveillance position, near the apartment building at 61 Cawston Street.
  • Having heard over the SCU radio that Mr Johnson was driving south on Forman Street towards his location, and Sergeant Clarke’s direction to detain and arrest Mr Johnson, DC Serf proceeded north on Forman Street to intercept Mr Douglas.
  • At the intersection of Forman Street’s intersection with Douglas Street, (i.e., the last intersection Mr Johnson’s southbound vehicle would pass before reaching Cawston Street and the area of Mr Schneider’s apartment building), DC Serf could see the black Honda approaching. DC Serf admittedly could not know with certainty where it was heading, but believed it once again was heading back to the parking lot of 61 Cawston Street, in order to visit the residence of Mr Schneider.
  • At 6:51pm, DC Serf then turned his vehicle in front of the black Honda, blocking its further southbound progress.[^30] Immediately thereafter, DC Serf quickly exited his vehicle, and walked over to the driver’s side door of the black Honda. Mr Johnson rolled down the driver’s door window, and DC Serf indicated Mr Johnson was under arrest.
  • DC Nahrgang, having also heard Sergeant Clarke’s decision and direction, had followed Mr Johnson south on Forman Street, and arrived on scene at approximately the same time to assist DC Serf in effecting the arrest.
  • Mr Johnston exited his vehicle, at which point DC Serf placed Mr Johnson in handcuffs and advised him that he was under arrest for possession of a controlled substance. In the course of doing so, DC seized and took possession of a black Samsung cellular telephone that Mr Johnson had in his hands at the time of his arrest.[^31]
  • From memory, DC Serf also provided Mr Johnson with a standard indication of his rights to counsel, along with an indication that DC Serf would facilitate his contacting a chosen lawyer or duty counsel in that regard as soon as they arrived at the Stratford police station. In response, Mr Johnson indicated that he wished to speak with duty counsel.
  • From memory, DC Serf also provided Mr Johnson with a standard primary caution, advising Mr Johnston that he had no obligation to speak with DC Serf, but that anything he did say could be used against him in proceedings. Mr Johnson responded that he understood. Mr Johnson also expressed that he was upset about the arrest, as he felt that it was not proper or accurate.
  • At that point, DC Serf asked Mr Johnson if there was anything the police were going to find in the vehicle that Mr Johnson knew about. (DC Serf testified, and I accept, that the purpose of the question was to determine whether or not there was anything in the vehicle that might hurt him, and which he therefore should know about, before he started looking around in the vehicle.) Mr Johnson responded that there was a “pipe” in the vehicle’s console, (i.e., the area between the vehicle’s two front seats), and DC Serf then asked no further questions in that regard.
  • Conversation between the two men at the site of the arrest thereafter was limited to a discussion of when the marked cruiser, coming to transport Mr Johnson to the Stratford police station, would arrive. (The two men were standing outside, and the weather was cold at the time.) While the two men remained at that location, and while DC Serf accompanied Mr Johnson back to the police station in the marked cruiser, DC Serf asked Mr Johnson no further questions, and there was no further discussion about the investigation.
  • Upon arrival at the Stratford police station with Mr Johnston, DC Serf conducted a search of Mr Johnson’s person incident to arrest, and then facilitated telephone contact between Mr Johnson and duty counsel, during which Mr Johnson was afforded privacy in a search/holding room of the station equipped with a telephone. Following the call, Mr Johnston indicated to DC Serf that he was satisfied with his contact with duty counsel, which brought the interaction between DC Serf and Mr Johnson to an end.
• It apparently was not disputed that the black Honda vehicle thereafter was searched incident to arrest, resulting in the location and seizure of evidence the Crown wishes to adduce at trial. For example, the application record filed by Mr Johnson includes express references to a police search of the black Honda,[^32] police location and seizure of the pipe which Mr Johnson said would be found in the console of the Black Honda,[^33] and other unspecified evidence seized by the police from the Honda.[^34] Similarly, Crown counsel made reference in her responding factum to a search of the black Honda vehicle conducted at the Stratford police station, and the resulting location and seizure of a significant quantity of methamphetamine, (totalling 87.5 grams), and other items noted above, (e.g., plastic baggies, a digital scale and weapons), frequently regarded as indicia of drug trafficking.[^35] However, for reasons noted below, I think it noteworthy that, apart from the aforesaid reference to police locating and seizing the pipe which Mr Johnson had said would be found in the vehicle’s console, I actually was provided with no evidence during the course of the voir dire before me - either in the application record, (including the affidavit sworn by DC Serf to obtain a search warrant in relation to the cellular phone), or in the oral testimony of the Crown’s witnesses - to indicate and confirm precisely what else was located and seized by the police via their searches of Mr Johnson’s person or vehicle. Without limiting the generality of the foregoing:
  • In his oral testimony, DC Serf mentioned conducting a search of Mr Johnson’s person, but did not mention the finding of any currency.
  • None of the police officers called by the Crown during the course of the voir dire were questioned about any police search of the black Honda, or evidence located and seized as a result of any such search.
  • According to the responding factum filed by Crown counsel, the member of the SPSCU who apparently conducted the relevant search of the black Honda, and seized the various items referenced in Crown counsel’s factum, was DC Schuurman. However, DC Schuurman was not called as a witness during the voir dire.
  • The affidavit sworn by DC Serf in support of his application to obtain a warrant authorizing search of the cellular phone taken from the hands of Mr Johnson at the time of his arrest actually makes no reference whatsoever to any other items of evidence, (including any methamphetamine), being located and seized through a search of Mr Johnson’s person or vehicle incident to arrest or otherwise. The only item of located and seized evidence referred to in the affidavit, (repeatedly), is the relevant cellular phone that was in Mr Johnson’s hands at the time of his arrest.
• Steps also were taken, following the detention and arrest of Mr Johnson on February 10, 2016, to obtain judicial authorization, pursuant to s.487 of the Criminal Code of Canada, (“the Code”), for the taking of forensic measures by the police that would enable information to be extracted from the cellular phone located and seized at the time of Mr Johnson’s arrest. In that regard:
  • DC Serf was tasked with preparing and swearing an appropriate “Information to Obtain” (“ITO”) affidavit to be sworn and submitted in support of an application, (also prepared by DC Serf), to obtain an appropriate warrant authorizing a search of the data on the relevant phone.[^36]
  • D.C. Serf finalized, swore and submitted such material on or about February 16, 2016; i.e., approximately six days after the traffic stop and arrest of Mr Johnson. That material formed part of the evidence submitted with Mr Johnson’s application record herein, and I accordingly will not attempt to replicate it here. For present purposes, suffice it to say that the content of the material included the following:
    • References to DC Serf’s involvement and experience with the SPSCU;
    • An extremely brief overview reference to the investigation leading to the arrest of Mr Johnson; i.e., a reference to “independent investigation and corroborated confidential informant information”, without provision of any details;
    • A brief indication that Mr Johnson was arrested on February 11, 2016, (sic), for simple possession of a controlled substance and possession of a controlled substance for the purpose of trafficking, and was found to have a black Samsung cellular phone in his hands at the time, which was seized incident to arrest;[^37]
    • An indication that the phone was secured after its seizure, at which time police noted it was continually ringing and vibrating from text messages being sent to it;
    • An indication that DC Serf felt that, based on the aforesaid “independent investigation and corroborated informer information”, (without provision of any details whatsoever in that regard), there were reasonable grounds for believing that Shane Ryan (sic) had committed the offences of simple possession of methamphetamine contrary to s.4(1) of the CDSA, and possession of methamphetamine for the purpose of trafficking in that substance, contrary to s.5(2) of the CDSA.
    • An indication that DC Serf was seeking a warrant to search data, (described and detailed in various ways), expected to be found on the relevant Samsung cellular phone, which has “already been lawfully seized and detained under s.490(1)(b) of the Criminal Code by police investigators.
    • An extended explanation as to why, based on DC Serf’s training and experience with drug-related investigations, and information provided to him by DC Phyllis Eastlake of the Woodstock Police Service Cyber Crime Unit, that evidence relating to the Mr Johnson’s commission of the above offences 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.
  • The sworn ITO and warrant application prepared, sworn and submitted by DC Serf to a judicial officer on or about February 16, 2016, apparently was promptly reviewed and approved; i.e., with the requested search warrant for the seized telephone being issued and returned to DC Serf the next day, (i.e. February 17, 2016), without the reviewing Justice of the Peace having identified any inadequacies or expressed any concerns.
  • Notwithstanding that outcome, it was acknowledged by Crown counsel that the ITO affidavit sworn in support of the warrant application had included at least one error on its face; i.e., inclusion, in paragraph 10, of the name “Shane RYAN” rather than the name Kody Johnson – even though the balance of the affidavit, in my view, makes it clear that DC Serf intended the entire affidavit and warrant application to refer to Kody Johnson and the phone seized from Mr Johnson. I note that, in paragraph 5 of the ITO affidavit, DC Serf also incorrectly indicated that Mr Johnson had been arrested on February 11, 2016, rather than his actual arrest date of February 10, 2016.
• After obtaining the aforesaid search warrant authorizing the police to take the steps necessary to search data on the cellular phone[^38], steps apparently then were taken by the police on or after February 16, 2010, to execute the warrant, resulting in evidence the Crown wishes to tender at Mr Johnson’s trial.

[8] With the above evidence and findings in mind, I turn to the remaining issues raised by the Charter application brought by Mr Johnson.

Charter analysis - Introduction

[9] In that regard, I propose to approach that analysis, as the parties did, by initial consideration of whether and how Charter rights of Mr Johnson may have been breached, before turning to consideration, if and as necessary, as to whether evidence obtained through any breach or breaches of such Charter rights should be excluded pursuant to s.24(2) of the Charter.

[10] More specifically:

• I will focus initially on Mr Johnson’s allegation that the circumstances of his arrest gave rise to an alleged contravention of rights guaranteed to him by section 9 of the Charter, which in turn led to consequential breaches of his section 8 Charter rights insofar as the searches of his person and vehicle carried out incident to arrest are concerned.
• That analysis will be followed by consideration, (albeit brief because of admissions made by the Crown), of the alleged breaches of Mr Johnson’s s.10(b) and section 7 Charter rights, relating to DC Serf asking Mr Johnson, (after Mr Johnson had been informed of his rights to counsel and had indicated his desire to speak with counsel), what the police would find in the black Honda.
• I thereafter will turn to consideration of the alleged independent contravention of Mr Johnson’s section 8 Charter rights that was said to have occurred in relation to the ostensibly warranted search of the data on Mr Johnson’s cellular phone.
• Finally, I will turn to a consideration, if and as necessary, of whether any evidence obtained by any established breaches of the Charter, should be excluded in the circumstances, pursuant to s.24(2) of the Charter.

[11] Although the Crown has the overall onus at trial to establish Mr Johnson’s guilt beyond a reasonable doubt, in relation to alleged offences, I bear in mind, throughout the analysis which follows, that Mr Johnson has the onus of proving, on a balance of probabilities, (and subject to the qualifications expressly mentioned below, which call upon the Crown to establish certain additional matters), the existence of any infringement of rights guaranteed to him by the Charter, and that evidence obtained by any established infringement or infringements should be excluded.[^39]

Charter breach analysis - Detention and searches incident to arrest

[12] In approaching the question of whether or not the circumstances or Mr Johnson’s arrest and searches incident to arrest gave rise to any breaches of rights guaranteed by sections 8 and 9 of the Charter, in my view, counsel correctly placed the initial focus on whether there were reasonable and probable grounds for a traffic stop of Mr Johnson’s vehicle and the arrest of Mr Johnson for possession of a controlled substance; i.e., on whether the circumstances gave rise to a breach of Mr Johnson’s section 9 Charter rights.

[13] Doing so is consistent with that alleged breach of Mr Johnson’s Charter rights having occurred first, from a temporal perspective.

[14] However, the existence of a section 9 Charter breach also effectively formed a significant linchpin of each side’s further desired analysis as to whether there was a consequential breach of Mr Johnson’s section 8 Charter rights, insofar as the searches performed incident to arrest were concerned. In particular:

• If reasonable and probable grounds for detaining and arresting Mr Johnson did not exist, the arrest was unlawful and therefore arbitrary, (giving rise to a section 9 breach), and the warrantless searches of Mr Johnson’s person and vehicle 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 searches may have been conducted in a reasonable manner – although the specific manner in which the 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, on that basis alone, to determine whether the drugs and other items thought to be drug-related, found during the searches carried out incident to arrest, should be excluded.
• If reasonable and probable grounds for the arrest did exist, it accordingly was a lawful arrest, there was no arbitrary detention giving rise to a section 9 breach, and proper searches of the person of Mr Johnson and his vehicle, carried out 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 any search incident to arrest was conducted improperly, (thereby giving rise to a breach of Mr Johnson’s’ section 8 Charter rights, independent of section 9 of the Charter), and/or on whether any other alleged and established contraventions of Mr Johnson’s Charter rights, not dependent on any breach of his section 9 Charter rights, may require exclusion of that evidence.

[15] Given such realities, a sensible and logical starting point is the question of whether or not there was a contravention of the section 9 Charter right of Mr Johnson to be free from arbitrary detention.

[16] However, before turning to more detailed analysis in that regard, 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

[17] 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.[^40]

[18] 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.[^41]
• 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.[^42]
• 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”.[^43]
• 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.[^44]
• 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.[^45]
• 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.[^46]
• 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.[^47]

[19] 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.[^48] On the other hand, an “arbitrary” detention includes an unlawful arrest and the detention that follows upon an unlawful arrest.[^49]
• 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.[^50]
• 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.[^51]
• 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.[^52]
• 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.[^53]
• 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.[^54] 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.[^55] However, the officer is not required to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.[^56]
• 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.[^57]

[20] 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.[^58]
• 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.[^59]
• 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.[^60] A tip can be compelling even if it contains some inaccuracies.[^61]
• 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.[^62]
• 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.[^63]
• 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).[^64]

[21] With the above principles in mind, I now return to an assessment of whether there have been breaches of the section 8 and 9 Charter rights of Mr Johnson in this case, insofar as the circumstances of his detention and arrest, and searches carried out incident to arrest, are concerned.

CHARTER BREACH ANALYSIS – DETENTION AND ARREST - SECTION 9

[22] In that regard, and for the reasons outlined above, I think a sensible and logical starting point for my analysis is the question of whether or not there was a contravention of the section 9 Charter right of Mr Johnson to be free from arbitrary detention.

[23] As noted above, a detention will not be characterized as “arbitrary” if it is lawful, as it would be in the case of a lawful arrest; i.e., an arrest based on “reasonable and probable grounds” in the sense demanded by the authorities.

[24] In my view, at the relevant time, and having regard to the totality of the circumstances, there were reasonable and probable grounds, both subjectively and objectively, to detain and arrest Mr Johnson for possession of a controlled substance.

[25] In that regard, I begin with a number of relevant preliminary observations and determinations.

[26] First, I reject the suggestion, repeatedly advanced by defence counsel during the course of submissions, that assessment of whether there were reasonable and probable grounds for detention and arrest of Mr Johnson should be restricted to a focus on information available to the officer who physically carried out that detention and arrest; i.e., DC Serf. In particular:

• As noted above, DC Serf unquestionably was the officer who stopped the further progress of the black Honda vehicle on the evening of February 10, 2016, approached that vehicle, informed Mr Johnson that he was under arrest, and placed Mr Johnson in handcuffs when Mr Johnson exited the black Honda,
• In my view, however, the evidence was absolutely clear that, although DC Serf had formed his personal and subjectively held belief that there were reasonable that probable grounds for effecting such an arrest, all members of the SPSCU participating in the operation – including DC Serf – understood that the ultimate decision maker in that regard was to be Sergeant Clarke as the ranking officer participating in the operation,, that the decision to detain and arrest Mr Johnson actually was made by Sergeant Clarke, and that DC Serf was relying and acting upon a direction voiced over the radio by Sergeant Clarke, (to all members of the unit participating in the operation, including DC Serf), that Mr Johnson was to be detained and arrested at the relevant time.
• In the circumstances, I find that Sergeant Clarke accordingly is the proper focus of “reasonable and probable grounds” analysis, based on the authorities noted above.[^65]

[27] Second, although Sergeant Clarke is the proper focus in that regard, in my view such an assessment also must take into account the evidence, (in my view undisputed or at least not meaningfully challenged or undermined in cross-examination), that Sergeant Clarke was making his personal determinations while acting as a member of a team of officers; a team that took considerable care to ensure that each member of the team’s individually acquired information and observations relating to the investigation were consistently and completely made available in writing and orally to all other members of that team, including Sergeant Clarke, who was entitled to rely upon hearsay in forming his views and conclusions. In the circumstances, I think little turns on the reality that Sergeant Clarke or any other individual member of the SPSCU may not personally have been present when Officer Hurley shared certain information, may not personally have engaged with certain confidential informants, or may not personally have made certain observations, when other evidence makes it sufficiently clear, in my view, that such information subsequently was shared in written and/or oral form with other members of the SPSCU, including Sergeant Clarke, prior to Sergeant Clarke making his determination that there were reasonable and probable grounds to direct the detention and arrest of Mr Johnson.

[28] Third, it did not seem to be disputed that Sergeant Clarke subjectively believed that there were reasonable and probable grounds to direct the arrest of Mr Johnson at the time that was done. In any event, however:

• I independently accept Sergeant Clarke’s testimony that, when he directed the detention and arrest of Mr Johnson, he subjectively held an honest belief that he had reasonable and probable grounds for doing so; i.e., reasonable and probable grounds for believing, based on the totality of information available to him at the time, that Mr Johnson had committed the offence of possessing a controlled substance, (methamphetamine), and should be arrested.
• In my view, Sergeant Clarke’s testimony in that regard was entirely candid and credible, and there was nothing to suggest it was not reliable. Again, that particular testimony also was not challenged in cross-examination.
• Moreover, the subjective belief of Sergeant Clarke in that regard was not simply based on a “hunch”. Rather, it was based on his interpretation of objective facts and information in his possession, emanating from the investigation and previously acquired information, which in turn was informed by his training, knowledge and experience. The subjective component of “reasonable and probable grounds” required to effect a lawful arrest therefore was satisfied when Sergeant Clarke directed the detention and arrest of Mr Johnson.

[29] As for the required objective component of “reasonable and probable grounds”, having regard to the totality of the circumstances, I find that the grounds relied upon by Sergeant Clarke in directing the detention and arrest of Mr Johnson for possession of methamphetamine also were justifiable from an objective point of view; i.e., in the sense that a reasonable person, placed in the position of Sergeant Clarke, and possessed of the same information, training, knowledge and experience, would conclude that there were indeed reasonable and probable grounds for arresting Mr Johnson.

[30] Without limiting the generality of the foregoing, my considerations in that regard include the following:

• In this case, the particular police investigation, including surveillance operations, were prompted by tips or information received indirectly or directly from the three confidential informants noted above; i.e., CI-Hurley, CI-Nahrgang and CI-Weyers. In that regard:
  • I certainly agree with defence counsel that aspects of the tips or information thus received fell short, in certain respects, of the level of compelling detail sometimes seen in other cases. For example:
    • The information provided by CI-Hurley included no physical description of Mr Johnson, no details as to the precise manner in which Mr Johnson was said to be trafficking methamphetamine, (such as details of the individual amounts of methamphetamine Mr Johnson may have supplied to others, prices charged by Mr Johnson in that regard, or methods of methamphetamine packaging or distribution employed by Mr Johnson), any indication of whether or not Mr Johnson’s distribution of methamphetamine occurred in Mitchell and/or extended geographically beyond Mitchell, or the mention of any specific individuals, (let alone Mr Schneider), to whom Mr Johnson may have been supplying methamphetamine;
    • The information provided by CI-Nahrgang similarly included no physical description of Mr Johnson, no apparent mention of Mr Schneider’s address, no details as to the precise amounts of methamphetamine Mr Johnson supposedly was supplying to Mr Schneider, no indication of how frequently that was supposed to occur, (as opposed to indications of a specific alleged delivery), no mention of the prices that may have been charged or the packaging that may have been used by Mr Johnson in supplying methamphetamine to Mr Schneider, and no indication of whether or not Mr Johnson was said to be supplying methamphetamine to individuals other than Mr Schneider; and
    • The information provided by CI-Weyers included no mention of Mr Johnson or any other indication of the person or persons from whom Mr Schneider may have been obtaining methamphetamine or where that individual or individuals may have been from, no apparent mention of Mr Schneider’s address, and no indication of how Mr Schneider supposedly received or was to receive his supply of methamphetamine; i.e., in terms of frequency, (beyond the particular supply that was said to be imminent), quantity, pricing, packaging or location.
  • In my view, however, aspects of the information being provided by the three confidential informants certainly went beyond mere bald assertions; e.g., simple assertions that Mr Johnson was a drug dealer or trafficker. To the contrary, in my view there were many details contained within the information provided by the three informants which made aspects of the information provided by the various confidential informants relied upon by the SPSCU, and in turn by Sergeant Clarke, compelling. For example:
    • CI-Hurley was indicating that Mr Johnson had ties to a specific residence in the town of Mitchell; an address identified by a detailed description, albeit not by a municipal address. It was, moreover, a specified residence apparently at odds with the Lucknow residence indicated in information Mr Johnson had supplied to the Ministry of Transportation, in turn suggesting that the relevant CI had access to more recent and/or more personal information relating to Mr Johnson. Moreover, CI-Hurley was not only indicating that Mr Johnson was trafficking in some form of illicit narcotics, but was also able to identify the specific drug involved, (i.e. methamphetamine), the level at which Mr Johnson was trafficking, (i.e., by specifying that Mr Johnson had regular access to as much as 2-3 ounces of methamphetamine at a time), the frequency and therefore extent to which Mr Johnson was trafficking in methamphetamine), (i.e., such that he apparently was required to obtain 2-3 ounces of methamphetamine every 2-3 days), and the source of Mr Johnson’s methamphetamine supply, (i.e. by detailed description if not by supplier name, insofar as CI-Hurley was able to identify that the source was geographically located in a specified, very small, and geographically remote hamlet of Ontario that was a substantial distance from the town of Mitchell, and that the supplier there was one also used by another specified individual. In my view, that collective information from CI-Hurley was extremely compelling.
    • CI-Nahrgang not only identified Mr Johnson by name,[^66] but was also specifying Mr Johnson’s town of residence, (a particular community located beyond the immediate geographic area of responsibility of the police force to which the information to which the information was being reported), the specific narcotic in which Mr Johnson was said to be trafficking, (i.e., methamphetamine), a specific methamphetamine customer of Mr Johnson, (i.e., Mr Schneider), very specific and recent movements of Mr Johnson, (i.e., that Mr Johnson had travelled to the residence of Mr Schneider to deliver methamphetamine on two specific nights, all of which was reported to DC Nahrgang on the following days), and additional predictive and corresponding explanatory information; i.e., that Mr Schneider was expecting the imminent return of Mr Johnson with a further supply if methamphetamine for delivery to Mr Schneider, as Mr Schneider had exhausted his previously available supply of methamphetamine. In my view, that collective information also was quite compelling.
    • The information supplied by CI-Weyers was in some respects more limited in extent than that supplied by CI-Hurley and CI-Weyers. In my view, it nevertheless also was compelling information, especially when viewed in context by members of the SPSCU, including Sergeant Weyers. In that regard, it provided, at a minimum, a further independent indication, from an additional source, that Mr Schneider was trafficking in a specific drug, (i.e., methamphetamine), that Mr Schneider was getting his methamphetamine from Mr Johnson, up to date information as to the amount of methamphetamine currently available to Mr Schneider, (i.e., none), and a very specific indication of when Mr Schneider was expecting to replenish his supply of methamphetamine, (i.e. later that same day).[^67] It was also compelling because it provided similar but independent and contemporaneous predictive information, from a source other than CI-Nahrgang, that Mr Schneider had exhausted his supply of methamphetamine and was expecting to have his supply renewed later that day; i.e., at a time effectively coinciding with the time for anticipated replenishment of Mr Schneider’s methamphetamine supply indicated by CI-Nahrgang.[^68]
  • As to whether the confidential informants supplying the above information were “credible” and reliable:
    • Assuming CI-Hurley was a person different from CI-Nahrgang and CI-Weyers,[^69] Crown counsel did not dispute, (and I independently agree), that members of the SPSCU - including Sergeant Weyers - had more limited information as to that informant’s credibility and reliability. In particular:
      • The person in question was not one of the SPSCU’s registered informants, and there was no evidence that he or she had received, prior to his or her provision of the relevant information to Officer Hurley, any explanations and cautions similar to those given to all SPSCU confidential informants; e.g. about the difference between informants and agents, the conditional nature of any consideration provided in exchange for information, and/or a warning as to the potential ramifications of the person providing demonstrably false information to the police.
      • There was no evidence of the SPSCU having received any specific indication from Officer Hurley as to how CI-Hurley had come by his or her information; i.e., as to whether it was received on a first or second hand basis.
      • Although there was some evidence indicating that Officer Hurley had provided the SPSCU with a “pedigree” of sorts in relation to CI-Hurley’s reliability, (likely to have been shared with all other members of the SPSCU including Sergeant Clarke, as per the unit’s standard practice of sharing such information), and I think it reasonably clear that the “pedigree” in question was supplied to the SPSCU by Officer Hurley prior to the arrest of Mr Johnson on February 10, 2016,[^70] evidence of that pedigree was limited to a broad indication that information supplied by CI-Hurley had led to convictions. There was no evidence of Officer Hurley having provided the SPSCU with information concerning the identity of CI-Hurley, the length of time Officer Hurley had been working with CI-Hurley, the relevant CI’s motivation for providing information, the precise number of arrests and convictions arising from CI-Hurley’s information, whether or not the convictions were drug-related, and whether or not CI-Hurley had ever provided information that was found to have been inaccurate.
    • In contrast, however, CI-Nahrgang and CI-Weyers were known and proven confidential informants, as far as the SPSCU was concerned, and in my view the unit had good reason to believe that the information each CI was supplying in this case was reliable. For example:
      • Neither of the two informants was anonymous. Their respective identities were known to the police, (who each had worked with designated handlers), such that each CI inherently faced the possibility of repercussions, including possible criminal charges, if he or she knowingly provided information the SPSCU found to be false.
      • By the time of this investigation, CI-Nahrgang had been working with the SPSCU for at least eight months, and CI-Weyers had been working with the SPSCU for at least a year. Both informants had received the standard explanations and warnings about the ramifications of providing demonstrably false information, (e.g. in terms of being denied contemplated charge or monetary consideration, being charged for misleading police, and having their CI relationships with the police being terminated), yet neither was known to have supplied any false information to the police.
      • Information supplied by each CI had been corroborated in the past and proven useful to the police, in securing the numerous arrests, convictions and seizures, (many of them related to methamphetamine), detailed above.
      • Both confidential informants were known to be involved in the drug subculture of Stratford, as users of methamphetamine. In my view, that enhances rather than detracts from their reliability in this case, as far as their probable access to relevant information about trafficking in methamphetamine was concerned. Police ideally would receive valuable information from informants without any prior records or history of illicit activity, who are motivated by civic duty than a desire for personal consideration. However, such persons also are far less likely to have involvement in the far from ideal world of those immersed in the drug subculture, from which the police realistically need to draw useful information concerning possession and trafficking of controlled substances.
      • Although CI-Nahrgang and CI-Weyers therefore not surprisingly had criminal records, neither had any convictions for crimes of deceit.
      • Although the disclosed evidence fell short of indicating that either CI-Nahrgang or CI-Weyers had any direct interaction with Mr Johnson, or confirming any direct personal observations of Mr Johnson, it was also clear that the source if each CI’s relevant information was much more than community gossip, In particular, both confidential informants were indicating that their information about past and anticipated methamphetamine deals involving Mr Schneider, and/or both Mr Schneider and Mr Johnson, was information being provided directly to the confidential informants by Mr Schneider himself.
  • As to whether information in the tips provided by the three confidential informants had been “corroborated”, by the time Sergeant Clarke directed the detention and arrest of Mr Johnson, I strongly disagree with defence counsel’s submissions that the SPSCU essentially had obtained little or no material corroboration of the CI information it had received, and/or that the SPSCU effectively was proceeding on the basis of what defence counsel repeatedly claimed was “pure speculation”. In that regard:
    • I begin by noting that the means of such corroboration are not confined to surveillance observations made before or immediately prior to an arrest, but also can include other information available to the arresting officer and/or officer directing the arrest. This particular case provides a number of examples in that regard, as members of the SPSCU, including Sergeant Weyers, independently were already in possession of information that corroborated various aspects of the CI information being received, and otherwise assisted in the investigation. For instance:
      • Members of the SPSCU knew, from prior drug investigations and resulting convictions, that Mr Schneider was indeed someone regularly engaged in the trafficking of methamphetamine.
      • For similar reasons, members of the SPSCU knew that Mr Schneider was indeed living at 61 Cawston Street, and were familiar with that residence as well as its immediate surroundings.
      • From prior investigations and previous criminal prosecutions, members of the SPSCU also possessed information of locations and persons where and with whom Mr Schneider was seen interacting, which in turn provided additional informed perspective on inferences to be drawn from those observations; e.g., insofar as such knowledge, (of those persons and places having established connection with methamphetamine trafficking), combined with such observations, suggested reasonable corroborative inferences that Mr Schneider was indeed trafficking in methamphetamine again, in turn making it likely that he would be receiving money for methamphetamine supplied and require further supplies of methamphetamine to continue his trafficking activity.
    • In my view, the surveillance operations carried out by the SPSCU on February 3 and 10, 2016, and resulting observations, were corroborative of the CI information that had been received by the unit. In that regard:
      • In my view, the observations made on February 3, 2016, gave rise to reasonable inferences that Mr Johnson did indeed have ties to Mr Schneider, that Mr Johnson was visiting the residence of Mr Schneider, and that Mr Johnson, (with the assistance of his partner Ms Montgomery), was engaged in drug trafficking.
      • Similarly, in my view the observations made on February 10, 2016, gave rise to reasonable inferences that Mr Schneider was engaged in trafficking methamphetamine, that Mr Schneider spent time that afternoon supplying methamphetamine and/or collecting money for methamphetamine, (which correspondingly would have increased Mr Schneider’s need for a further supply of methamphetamine and ability to pay for more amphetamine), and that Mr Johnson was once again proceeding to Mr Schneider’s residence that evening to provide Mr Schneider with a renewed supply of methamphetamine; i.e. to “reload” Mr Schneider.
      • I am mindful of the reality, emphasized by defence counsel during the course of cross-examination and in submissions, that many if not all of the individual surveillance observations relied upon by members of the SPSCU, (including Sergeant Clarke), are equally consistent with possible innocent explanations. To take but a few examples: one obviously can visit a bank for entirely innocent reasons having nothing whatsoever to do with drug trafficking; people can visit each other for social or other reasons entirely unrelated to the sale of methamphetamine; and it is entirely possible that Mr Johnson’s vehicle just happened to travel to and towards the designated parking lot of Mr Schneider’s apartment building without any visit or intended visit to the residence of Mr Schneider.
      • In my view, however, inferences being made from the relevant surveillance observations by members of the SPSCU, including Sergeant Weyers, were entirely reasonable in the circumstances. Without limiting the generality of the foregoing:
        • As the Local Administrative Judge for Stratford, I think I am entitled to take judicial notice of the fact that the city has a population of approximately 32,000 people, who reside in residential homes and apartment buildings scattered over an area of approximately 27 square kilometres. In my view, the fact that Mr Johnson was seen to travel directly from the area of Mitchell to the designated parking lot of Mr Schneider’s apartment building on February 3, 2016, and towards and very near that same parking lot on February 10, 2016, (i.e., travelling to that particular destination in Stratford on two separate occasions within a one week period), takes the matter well beyond coincidence in terms of providing corroboration for what the relevant confidential informants were indicating to the SPSCU.
        • Although it is possible that Mr Johnson may have parked in the parking lot of 61 Cawston Street with a view to then walking from there to a different apartment building in the area, in my view, there is nothing to suggest that was probable. Each of the apartment buildings in the area had its own parking area. Assuming that Mr Johnson deliberately parked in the lot of 61 Cawston Street with a view to then walk in a very indirect fashion to an apartment building other than 61 Cawston Street it not a natural or reasonable inference. I think it far more sensible to infer that Mr Johnson likely used the parking lot of the building he intended to visit, or from which he expected someone to visit his vehicle.
        • Surveillance observations made on February 3, 2018, indicated that the only stops made in Stratford that day by Mr Johnson and Ms Montgomery were the parking lot of 61 Cawston Street and a fast food restaurant – and one need not travel all the way from Lucknow or Mitchell to Stratford to obtain fast food. Such realities reinforce an inference that the apparent visit to 61 Cawston Street, (lasting no more than 20 minutes), was the primary reason for Mr Johnson and Ms Montgomery to travel into Stratford – and a visit of that short duration, (less than 20 minutes when one considers the time spent for someone to travel from the parking lot or vice versa), seems consistent with an errand, (i.e., a drop off and/or pick up of something making the relatively short visit to Stratford worthwhile), rather than socializing.
        • The very short stops made by Mr Johnson and Ms Montgomery in Teeswater and Lucknow on February 3, 2016, similarly seem consistent with drop offs and/or pick-ups rather than visitation. In my view, the inference of Mr Johnson and Ms Montgomery being engaged in some kind of profitable transactions during such visits that day is significantly buttressed by the reality that the village of Teeswater is not on any direct route of travel between Stratford and Lucknow. It instead requires a significant deviation from any sensible route of travel between Stratford and Lucknow, suggesting in turn that there must have been a significant reason why Mr Johnson and Ms Montgomery felt that making such a detour for such a short visit was worthwhile,
    • Moreover, as noted above:
      • Individual links in a possible chain of considerations forming reasonable and probable grounds are not to be examined and discounted on such a piecemeal basis. It is, rather, the totality of the circumstances and information available to the arresting officer or officer directing such an arrest, at the time of the arrest, which must be considered.
      • It must be remembered that the standard of reasonable grounds does not require proof beyond a reasonable doubt or a prima facie case, but merely a practical, non-technical and common-sense probability as to the existence of the facts and inferences.
      • It must also be remembered that the various surveillance observations were being made and interpreted by a team of interacting, trained, experienced and knowledgeable officers actively involved in the SPSCU, the operations of which are primarily focused on drug investigations, and those involving methamphetamine in particular. In my view, a degree of deference is owed to the inferences being drawn by such officers when interpreting such observations through their experienced and trained eyes.
  • Finally, in accordance with the authority noted above, the fact that Sergeant Clarke was a senior officer with considerable experience and expertise in relation to methamphetamine investigations, and held a subjective belief in the existence of reasonable and probable grounds for the arrest based on the totality of the circumstances outlined above, is in itself some additional evidence to support a conclusion that his subjective belief was objectively reasonable.[^71]

[31] As there were reasonable and probable grounds for Sergeant Clarke to direct the arrest of Mr Johnson for possession of a controlled substance at the relevant time, the ensuing detention and arrest of Mr Johnson carried out by DC Serf accordingly was lawful.[^72]

[32] As there was a lawful arrest, and therefore a lawful detention, that detention of Mr Johnson cannot be regarded as arbitrary.

[33] I accordingly am not satisfied that there was any constitutional infringement of Mr Johnson’s section 9 Charter right not to be subjected to arbitrary detention.

CHARTER BREACH ANALYSIS – SECTION 8 – SEARCHES INCIDENT TO ARREST

[34] In this case, the allegation that Mr Johnson’s section 8 Charter rights were breached, in relation to the searches of Mr Johnson and his vehicle carried out incident to arrest, were entirely dependent on a prior section 9 breach; i.e. a suggestion that the relevant detention and arrest were unlawful, thereby negating availability of the common law power of police to conduct such searches incident to arrest, in the absence of a warrant.[^73]

[35] As the relevant detention and arrest were lawful, there was no consequential breach of Mr Johnson’s section 8 Charter rights, as far as the searches incidental to arrest were concerned.

CONCLUSIONS - ALLEGED CHARTER BREACHES – DETENTION AND SEARCHES INCIDENT TO ARREST

[36] In the result, Mr Johnson accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement of the rights guaranteed to him under section 9 of the Charter, in relation to his detention and arrest, or of the rights guaranteed to him under section 8 of the Charter, in relation to the searches carried out incident to arrest; i.e., including searches of his person and the contents of his vehicle, but not including the subsequent search carried out in relation to data contained within the cellular phone Mr Johnson was holding at the time of his arrest, which was the subject of a search warrant in respect of which warrant validity was disputed.

Charter Analysis – Substantive questioning following assertion of right to counsel

[37] I turn next to Mr Johnson’s assertion that his section 10(b) and section 7 Charter rights were breached, following his arrest by DC Serf on the evening of February 10, 2016.

[38] Subsection 10(b) of the Charter reads as follows: “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”

[39] Section 7 of the Charter reads as follows: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” It is well-established that the rights extended by section 7 of the Charter include a detained person’s right to silence; a well-settled principle that has been part of the basic tenets of our law for generations.[^74]

[40] In this case, there was no dispute, and I find, (having regard to the testimony of DC Serf in particular), that Mr Joseph, upon being arrested, was promptly and properly informed of his rights to counsel and his right to remain silent.

[41] Mr Johnson’s assertion of related s.10(b) and section 7 Charter breaches instead focuses on his claim that DC Serf engaged in improper substantive questioning of Mr Joseph effectively relating to the charges against him and the possibility of further evidence in that regard, (e.g., to evidence that might be found in Mr Joseph’s black Honda vehicle), after Mr Joseph had asked to speak with a lawyer and before that access was granted.

[42] In that regard, it was not disputed that the police conduct underlying the related s.10(b) and section 7 breaches alleged by Mr Johnson was limited to DC Serf asking Mr Johnson a single substantive question at the site of the arrest, after Mr Johnson had expressed his desire for counsel; i.e. a question asking if there was anything the police were going to find in the vehicle that Mr Johnson knew about, which in turn elicited a short answer from Mr Johnson that there was a “pipe” in the vehicle’s console.

[43] Crown counsel acknowledged and did not try to defend the alleged breach of Mr Johnson’s s.10(b) Charter rights - in turn giving rise to a correlative breach of Mr Johnson’s right to silence pursuant to section 7 of the Charter.

[44] I independently agree that Crown counsel was right to make that concession.

[45] Although DC Serf indicated in his testimony that the question he asked was focused on officer safety, (as he was concerned about the possibility of something in the vehicle that might harm himself or other officers), I agree with the submission of defence counsel that there actually was no pressing urgency to the situation insofar as the situation and black Honda effectively had been secured, and the vehicle could have been towed safely back to police headquarters or elsewhere for a search at some later time if an immediate search would have given rise to safety concerns..

[46] In the circumstances, I think DC Serf could and should have refrained from any immediate substantive questioning of Mr Joseph, however brief and limited, once Mr Joseph had expressed a desire to speak with legal counsel.

[47] For the purpose of Mr Joseph’s Charter application, I accordingly find a breach of his s.10(b) Charter rights, and a correlative breach of his section 7 Charter right to silence. Again, those breaches relate to the single substantive question noted above, posed by DC Serf after Mr Johnson had asked to speak with a lawyer, which prompted Mr Johnson’s equally brief response.

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

[48] That leaves, for further consideration and determination, as far as alleged Charter breaches are concerned, Mr Johnson’s allegation of a breach of his section 8 Charter rights in relation to the data on the cellular phone he was holding at the time of his arrest; i.e., a section 8 breach based on alleged invalidity of the relevant search warrant that authorized the ensuing police search of the phone’s data.

GENERAL PRINCIPLES – SECTION 8 OF THE CHARTER AND WARRANT VALIDITY

[49] 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.

[50] 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.

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

[52] 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 second branch of Mr Johnson’s pretrial Charter application.

[53] 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.[^75]
• 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.[^76]
• 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.[^77]
• 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.[^78]
• 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.[^79]
• 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 relevant computer or other mobile communication device 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.[^80]
• 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.[^81]
• It is also important to appreciate that search warrants are statutorily-authorized investigative aides often issued before any criminal proceedings have been commenced, and that the ITO affidavits sworn to obtain them almost invariably are drafted by police officers, 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.[^82]
• 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.[^83]
• 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.[^84]
• 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.[^85]
• 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.[^86]
• 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.[^87]
• 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.[^88]
• 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.[^89]
• 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.[^90]
• 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.[^91]
• 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.[^92]

CHARTER BREACH ANALYSIS – SECTION 8 AND WARRANT VALIDITY

[54] In this particular case, I think it fair to say that Mr Johnson’s allegation of a section 8 Charter breach, in relation to the warranted search of his cellphone data, did not extend beyond a “facial” challenge to the validity of the relevant search warrant issued in relation to the relevant cellular phone.

[55] In particular, although DC Serf was the affiant who prepared the search warrant application and swore the relevant underlying ITO affidavit, and testified during the voir dire hearing before me, there was absolutely no cross-examination relating to such matters. Beyond noting in argument that DC Serf’s affidavit had mistakenly (but also obviously) included a reference to another individual who had nothing to do with this particular matter, (with the reasonable inference being DC Serf’s use of a precedent in respect of which not all of the original name references were changed appropriately), there was no suggestion by defence counsel nor Crown counsel that any information set forth in the ITO affidavit was erroneous and should have been amended to more accurately reflect information available to the SPSCU and DC Serf at the relevant time – although, as I noted above, DC Serf also included a slightly incorrect date of arrest. Nor was I asked to consider or take into account, when determining validity of the search warrant issued in relation to Mr Johnson’s phone, any “amplification evidence”; i.e., evidence submitted to correct what were submitted to be minor or technical “good faith” errors in the relevant ITO affidavit sworn by DC Serf.

[56] In support of what therefore was a “facial validity” attack on relevant search warrant, it was submitted by defence counsel that the ITO affidavit sworn by DC Serf did not contain sufficient information upon which the issuing justice could have granted the relevant search warrant, such that the resulting data search carried out in relation to the seized cellular phone, found in Mr Johnson’s possession at the time of his arrest, effectively was unauthorized and unlawful, which in turn gave rise to a prima facie breach of the rights guaranteed to Mr Johnson by section 8 of the Charter.

[57] In that regard, it was not disputed that, since a search warrant is presumptively reasonable, Mr Johnson bore the onus of demonstrating that the search warrant issued in this case, in relation to the relevant cellular phone, could not properly have issued, having regard to the content of the ITO affidavit sworn by DC Serf.

[58] In my view, Mr Johnson has discharged his burden in that regard.

[59] In particular, having regard to the totality of the evidence presented in the ITO affidavit, including what I consider to be reasonable inferences which the affiant, reviewing Justice and I were capable of drawing, the evidence fell short of providing at least some sufficient credible and reliable evidence, in the cellular phone search warrant application, 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.

[60] In saying that, I think it important to reiterate again that I am more than mindful of the governing principles, outlined above, which include repeated appellate court admonition that a judge engaged in determining such issues is not to approach the question of issuing a search warrant de novo, substitute his or her view for that of the reviewing justice, and/or require – in the determination of warrant validity – anything more than the existence of some sufficient credible and reliable evidence that could have justified a finding of reasonable and probable grounds, (including both its subjective and objective components), to issue the warrant.

[61] In this particular case, however:

• On a facial validity warrant challenge such as this, (i.e., where there was no request to correct erroneous information – apart from what I consider to be an obvious date error and inadvertent residual reference to the name of another individual rather than Mr Johnson – or supplement the record with any amplification evidence), one is obliged to look within the four corners of the ITO affidavit to see if that content provides a basis for a finding of reasonable and probable grounds in the sense required.
• That content contains, I think, adequate evidence of DC Serf’s subjective belief 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.[^93]
• In my view, however, there effectively is nothing within the four corners of the ITO affidavit which provides any basis for an objective review and determination as to whether a reasonable person, standing in the figurative shoes of DC Serf, could have shared the same belief – particularly insofar as a belief concerning commission of the charged offence is concerned.
• Reduced to its essentials, the ITO affidavit sworn by DC Serf indicates that there were reasonable grounds to believe that offences contrary to s.4(1) and 5(2) of the CDSA had been committed “based on independent investigation and corroborated information”, (in respect of which no details whatsoever are provided), that the accused was arrested for those offences, that a cellular phone was found in the possession of the accused at the time of his arrest, that - for reasons detailed in the affidavit - those trafficking in drugs frequently use cellular phones for purposes relating to such drug trafficking activity, and that such cellular phones therefore often retain and contain a great deal of evidence related to drug trafficking that can be extracted and examined by police, in support of such possession and trafficking charges.
• In my view, one nevertheless looks through the ITO affidavit in vain for any basis on which to assess whether there objectively were reasonable and probable grounds for believing that such offences had been committed. In that regard:
  • I am very mindful of the reality that the task of the reviewing Justice was not to determine whether or not there were reasonable and probable grounds for arresting Mr Johnson, in turn providing a lawful basis for conducting a warrantless search of Mr Johnson incident to arrest – which in turn resulted in a lawful seizure of Mr Johnson’s telephone. Contrary to the submissions of defence counsel, I accordingly do not think DC Serf necessarily was obliged, in the course of his ITO affidavit, to reiterate all details of the investigation, (outlined above), that went into formation of reasonable and probable grounds for detaining and arresting Mr Johnson for possession of a controlled substance.
  • Having said that, I also think it insufficient, in the context of the ITO affidavit, for DC Serf to refrain from providing such details while simultaneously providing nothing else, in the way of evidence to support DC Serf’s indicated subjective belief and bald assertion that there were reasonable and probable grounds to believe that s.4(1) and 5(2) CDSA offences had been committed.
  • In other words, I think DC Serf could have provided details of the independent investigation and corroborated information to which he alludes in his affidavit, (which arguably could have provided an objective basis for believing that such offences had been committed, for reasons similar to those outlined above in relation to my section 9 determination), or he alternatively could have provided other evidence – such as evidence of the substantial quantities of methamphetamine and other indicia of trafficking found in Mr Johnson’s black Honda during the course of searches incident to arrest – giving rise to reasonable and probable grounds to believe, (in the subjective and objective sense required), that the relevant s.4(1) and 5(2) offences had been committed.
  • In this case, however, DC Serf chose to do either. In the result, by providing the reviewing Justice with no details whatsoever of the CI information or independent investigation which led to Mr Johnson’s arrest on the indicated charges, nor any evidence whatsoever of anything found in Mr Johnson’s possession which may have been capable on its own to warrant an inference that the charged offences had been committed, DC Serf effectively failed to provide the reviewing Justice with any means to carry out a proper and required assessment of the circumstances to determine whether or not someone standing in the figurative shoes of DC Serf reasonably could have believed that s.4(1) and 5(2) offences had been committed. In other words, DC Serf failed to provide the reviewing Justice could assess and confirm that the grounds upon which DC Serf subjectively was relying, in requesting the warrant, were objectively reasonable.
  • In my view, the material placed before the reviewing Justice in this particular case accordingly did not provide a sufficient basis on which the warrant could have issued.
  • More generally, it seems to me that, if the warrant granted in these particular circumstances was upheld, it would be tantamount to a declaration by this court that police essentially should be granted warrants on request to search any cellular phone found in the possession of someone charged with a s.4(1) and s.5(2) offence, because: the police subjectively believe (without providing reasons) that such offences were committed; that those committing such offences frequently use cellular phones; and that the police believe evidence to confirm their subjective belief of offence commission therefore is likely to be found on the cellular phone. In other words, the mere laying of such charges, and a sworn but entirely unsupported indication of subjective police belief that the offence had been committed, would in turn lead to judicially authorized searching of an accused cellular phone to obtain evidence supporting commission of such offences.
  • In my view, the potential for police fishing expeditions based on subjective belief that is not objectively reasonable is obvious. The privacy rights in cellular phones, effectively extended by section 8 of the Charter, and emphasized by our appellate courts, should not be invaded so easily.

[62] For the above reasons, Mr Johnson has satisfied me, on a balance of probabilities, that the warrant authorizing a search of the data of the relevant cellular phone was invalid.

[63] The resulting search of the data on that validly seized phone accordingly was not authorized by law, and represented a breach of the rights guaranteed to Mr Johnson by section 8 of the Charter.

Summary of Charter breach determinations

[64] For the reasons outlined above, I have found:

a. That there was no breach of Mr Johnson’s section 9 Charter rights, insofar as there were reasonable and probable grounds for his detention and arrest, and that the searches of Mr Johnson and his vehicle conducted incident to arrest accordingly gave rise to no breach of the rights guaranteed to Mr Johnson by virtue of section 8 of the Charter.

b. That, as acknowledged by the Crown, there nevertheless was a breach of the rights guaranteed to Mr Johnson by s.10(b) of the Charter, (and in my view a correlative breach of the rights guaranteed to Mr Johnson by section 7 of the Charter), insofar as DC Serf posed his single substantive question to Mr Johnson, (about what the police would find in the black Honda), after Mr Johnson had expressed a desire to speak with counsel.

c. That there also was a breach of the rights guaranteed to Mr Johnson by section 8 of the Charter insofar as the police search of the data on his validly seized cellular phone was concerned, in that the ITO affidavit and warrant application provided no sufficient basis on which the reviewing Justice could have found there were reasonable and probable grounds for issuing of the requested warrant, such that the issued warrant was invalid, rendering the police search of the phone’s data an unwarranted and therefore unlawful search.

[65] The remaining issues raised by Mr Johnston’s application concern the relief that should be granted, if any, to address the breaches of Charter rights that have been acknowledged and/or established in this case.

Consequences of Charter breach determinations – subsection 24(2) of the Charter

[66] In considering whether and what relief should be granted in the circumstances, I start by noting certain concessions and indications made by the Crown during the course of the voir dire and oral submissions. In particular:

a. Crown counsel noted and confirmed that, having regard to the acknowledged breach of Mr Johnson’s s.10(b) and section 7 Charter rights, (in relation to DC Serf’s question asking Mr Johnson would police would find in the black Honda, and Mr Johnson’s response that there was a pipe in the vehicle’s console), the Crown would not seek to lead evidence of the relevant question or response at trial, and was content with an order formally excluding such evidence.

b. Crown counsel also indicated and confirmed that, if the warrant authorizing a search of Mr Johnson’s cellular phone data was found to be invalid, (thereby giving rise to a confirmed breach of Mr Johnson’s section 8 Charter rights, as far as the resulting police search of such data was concerned), the Crown would not seek to lead evidence of that data at trial, and would be content with an order formally excluding such evidence.

[67] In the result, those exclusionary orders will be and hereby are granted; i.e., formally excluding evidence of DC Serf’s question to Mr Johnson concerning what the police would find in the black Honda vehicle, evidence of Mr Johnson’s response in that regard making reference to the pipe in the vehicle’s console, and evidence of the data found on Mr Johnson’s cellular phone.

[68] That leaves, for determination, consideration of defence counsel’s request that the established Charter violations in this case also should result in formal exclusion of all other evidence located and seized pursuant to the searches carried out incident to arrest, pursuant to s.24(2) of the Charter.

SUBSECTION 24(2) OF THE CHARTER

[69] I begin my s.24(2) analysis by noting its wording, which reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[70] That wording gives rise to two relevant issues in this case:

i. whether the remaining evidence Mr Johnson seeks to exclude was “obtained in a manner” that infringed or denied his Charter rights; and, if it was,

ii. whether Mr Johnson has established that the evidence should be excluded because, having regard to all the circumstances, its admission in this proceeding would bring the administration of justice into disrepute.

SUBSECTION 24(2) OF THE CHARTER – “OBTAINED IN A MANNER” ANALYSIS

[71] While cases dealing with the second issue are legion, the first issue had received comparatively less scrutiny, although it has come to the fore again more recently with release of our Court of Appeal’s decision in R. v. Pino.[^94]

[72] In that regard, I am mindful that, while a superficial reading of s.24(2) might tempt one to conclude that the “obtained in a manner” requirement can only be met by a causal