IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Prasad is charged with three counts of possession of a controlled substance for the purpose of trafficking.  The charges arose on January 27, 2015 after an apartment and vehicle connected to Mr. Prasad were searched by the police and heroin, cocaine, and methamphetamine were discovered.

[2]           Mr. Prasad applies for leave from the court to enter into a voir dire to challenge the admissibility of evidence obtained in the searches.  If permitted to enter a voir dire, he intends to seek exclusion of the evidence obtained in the searches of the apartment and vehicle due to an alleged violation of Mr. Prasad’s right to be secure against an unreasonable search and seizure under sections 8 of the Charter.

[3]           As part of this challenge, Mr. Prasad also applies for leave to cross-examine, Cpl. Hazell, the officer who swore the information to obtain (“ITO”) the search warrants.  He wishes to cross-examine Cpl. Hazell on a number of paragraphs in the ITO to show that the officer did not provide full, fair and frank disclosure of all relevant matters.

[4]           The Crown opposes Mr. Prasad’s application for leave to enter into a voir dire and his application to cross-examine the officer.  The Crown argues that Mr. Prasad has not satisfied the legal requirements for the court to enter into a voir dire, or to allow cross-examination of Cpl. Hazell.

[5]           The issues that must be decided are as follows:

[6]           I will provide some relevant background to the investigation before addressing these issues.

[7]           The Crown alleges that Mr. Prasad was the manager of a dial-a-dope drug line operating in Richmond and Surrey.  It is alleged that he supplied persons working these lines, the “drug runners”, with drugs they later sold to individuals, including sales to undercover police officers.

[8]           According to the ITO, the investigation lasted for approximately eight months, culminating in the arrest of Mr. Prasad and searches of his vehicle and apartment in January of 2015.  Over the course of the investigation, undercover officers made forty separate drug purchases from the drug runners.  

[9]           Mr. Prasad surfaced in the investigation in November of 2014.  The ITO outlines a series of transactions observed by surveillance officers in November and December of 2014 and January of 2015 that were believed to involve trafficking in controlled substances.  Several of these scenarios lead to undercover officers purchasing controlled substances from the drug runners on the Richmond and Surrey drug lines.

[10]        Surveillance officers observed a number of transactions between the drug runners and a person driving a blue Toyota Matrix (“the Matrix”).  In the ITO, Cpl. Hazell (“the affiant”) sets out the basis for his belief that Mr. Prasad was the person driving the Matrix in these transactions.  The identification of Mr. Prasad in the ITO as the driver of the Matrix has not been challenged at this hearing.

[11]        After setting out the surveillance observations for these transactions in the ITO, Cpl. Hazell (“the affiant”) sets out his belief that Mr. Prasad was supplying the drugs to the drug runners for them to sell to the undercover officers.  The allegation that Mr. Prasad was supplying drugs is challenged at this hearing and forms the basis for the applications for a voir dire and to cross-examine the affiant.

[12]        The procedure to be followed when an accused seeks to contest the validity of a search warrant by challenging the ITO was set out in R. v. Wilson, 2011 BCCA 252 at para. 69.  Under the first step, I must determine whether a voir dire is necessary.  The case law makes it clear that a search warrant is presumed to be valid, and the accused bears the burden of proving it has not been properly issued:  Wilson at para 63; R. v. Vukelich, 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 at para. 25.

[13]        The test for determining whether a voir dire should be held was set out in Vukelich.  Counsel seeking a voir dire to challenge the admissibility of evidence due to an alleged breach of s. 8 of the Charter must state “with reasonable particularity the ground upon which the application for exclusion is made” that establishes “a basis upon which a court could make an order excluding the evidence”: at para. 25.  If the accused fails to show a basis upon which a warrant could be set aside under s.8 and evidence excluded under s. 24 of the Charter, the court should refuse to hold a voir dire.

[14]        When determining whether the threshold to enter a voir dire has been met, the court must be careful not to apply the test that is applied on a review of the warrant.  The threshold to determine whether a voir dire will be held is lower than the test to set aside a warrant.  There are different standards at each step in the process.  In the appeal court decision of Pires and Lising, Finch J.A. addressed the difference in the test for leave to cross-examination and the test for review of an authorization.  He made it clear that these tests are separate and distinct:

[15]        On appeal, the Supreme Court of Canada agreed with Finch, J.A. on this point.  Charron, J, writing for the court stated:

[16]        In my view the same must be said for the test for whether a voir dire should be held.  If the defence establishes, with reasonable particularity, “a basis upon which a court could make an order excluding the evidence”, a voir dire should be declared.  Whether or not a search warrant has been properly authorized is a separate determination that is made after the voir dire into the validity of the search warrant is held.

[17]        The defence argues that a voir dire should be held to determine whether the ITO sets out a proper basis to grant a search warrant for:

[18]        Mr. Prasad argues that he has established a basis to set aside the search warrants.  Regarding the Matrix, the defence says the affiant provided a misleading characterization of the transactions involving the Matrix.  The affiant describes these interactions as instances in which he believes Prasad is supplying drugs to runners of the drug line.  The defence asserts that this is not a reasonable characterization of these interactions.  It is said that the interactions are equally consistent with the purchase of drugs by Mr. Prasad.  The reasonable probable grounds for the search of the Matrix are founded upon the affiant’s belief that Mr. Prasad was supplying drugs.  If the characterization is misleading, this is a basis upon which the court could set aside the warrant.

[19]        Regarding the search of Unit 207, the defence seeks to challenge the sufficiency of the grounds connecting the driver of the Matrix, said to be Mr. Prasad, to Unit 207.  The defence seeks leave to cross-examine the officer on one of the key observations in the ITO that ties Mr. Prasad to Unit 207, an observation on January 23, 2015.  The defence says the grounds to search the unit are slim to begin with.  If the defence is successful in challenging one of the key observations, there would not be reasonable and probable grounds to search the unit.

[20]        The Crown argues that Mr. Prasad has not met the onus of providing a legal basis upon which the court could find the search warrants to be invalid.  The Crown points out that the court must remember that the test for a reviewing judge is not whether the authorizing justice should have granted the warrant, but it is whether the warrant could have been granted.  When determining whether a voir dire should be held, the court must consider whether, even if the defects alleged were found to exist, there would still be a basis for granting the warrant on the material which remained in the ITO.  Finally, the Crown notes that the court must exercise its gatekeeper function; to ensure that the court’s resources are used constructively, and to control prolixity in proceedings.

[21]        The Crown argues that the defence’s challenge to the affiant’s belief that Mr. Prasad was supplying drugs, as opposed to purchasing drugs would not provide a basis to set aside the warrants.  Even if the affiant was found to have over-stated his opinion, this would not undermine the basis for the warrants, since they were granted on the facts set out in the ITO, not the affiant’s opinions.

[22]        I must bear in mind the caution from higher courts not to conflate the test for whether a voir dire should be held, with the test on review of the adequacy of the search warrant.  Before granting the search warrants in this case, the authorizing justice needed to have reasonable grounds to believe that the stated offences of trafficking or possession for the purpose of trafficking had been, or would be committed, and that there were reasonable grounds to believe that evidence pertaining to the offences would be located in the Matrix vehicle and Unit 207.

[23]        The foundation for the granting of the search warrants is the belief that Mr. Prasad was supplying drugs to drug runners.  If the court were to find that there is no objective basis set out in the ITO for the belief that Mr. Prasad was trafficking in controlled substances, there could be an order for the exclusion of evidence.  Given the importance of the characterization of Mr. Prasad’s activity as the supply of drugs, I find that the defence has met the low threshold to establish that a voir dire should be held on this issue.

[24]        In making this determination, I recognize that the belief that Mr. Prasad was supplying drugs to drug runners is simply the opinion of the affiant, and subject to the scrutiny of the authorizing justice from an independent review of the facts set out in the ITO.  I will touch on this in more detail in the next section, since it is relevant to the application to cross-examine the affiant.  As will be seen below, the suggestion that an affiant’s opinion in an ITO is misleading is of less significance in a challenge to the grounds for a warrant, than the suggestion that the underlying facts were misleading.  But I do not believe it is reason enough to refuse to enter a voir dire.

[25]        As such the defence will be permitted to hold a voir dire into the validity of the search warrants for Unit 207 and the Matrix vehicle.

[26]        In R. v. Wilson, Frankel, J.A. made it clear that, when a voir dire is held, it does not automatically follow that witnesses will be called.  The trial judge must determine whether the calling of evidence should be permitted and the scope of the voir dire.  The trial judge may determine that the arguments on a voir dire should be limited, for example to the facial sufficiency of the ITO: para. 63 and 69. 

[27]        If a voir dire is declared, an accused must obtain leave from the trial judge before being permitted to cross-examine the affiant.  The accused must satisfy the judge that there is a “reasonable likelihood” that the proposed cross-examination “will assist the court to determine a material issue”:  R. v. Pires; R. v. Lising, 2005 SCC 66 at para. 40.  In applying this test, the court must bear in mind the narrow issues to be determined in a review of a warrant, that is, whether there is a basis upon which the authorizing justice could have granted the order.  The court made it clear in Pires and Lising that the threshold test for cross-examination is not an onerous one (para. 40).

[28]        As stated in R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 at p. 198:

[29]        The defence argues that the proposed cross-examination is directed at undermining the statutory requirement that the officer establish reasonable and probable grounds to believe the offences alleged had occurred.  It is submitted that in many of the paragraphs relating to drug transactions, the affiant states his belief that the driver of the Matrix, believed to be Mr. Prasad, supplied drugs to persons believed to be running the dial a dope line.  The defence asserts that, on each occasion, there is an equally consistent inference that this person purchased the drugs, as opposed to supplying them.  The defence wishes to cross-examine the officer on these paragraphs to show that his stated belief the Mr. Prasad was supplying drugs is not the only conclusion that could be drawn from the observations of the surveillance officers.

[30]        The defence also wishes to cross-examine the affiant about additional interactions between the Matrix and the drug runner in which the affiant stated his belief that Mr. Prasad was picking up money from the sale of methamphetamine by the drug runner to the undercover officer.  The defence submits that the officer’s belief in this regard is not the only inference.

[31]        Finally, the defence has sought leave to cross-examine on a number of other matters, which I will address in more detail later in my reasons.

[32]        The Crown argues that the defence has not satisfied the test for leave to cross-examine the affiant.  While recognizing that the threshold is not particularly onerous, the Crown contends that the analysis must remain strictly focused on the ultimate question in a Garofoli review, that is, whether there continues to be a basis on which the authorizing judge could have granted the order, even if there are defects found in the ITO. 

[33]        The Crown asserts that many of the matters raised by the defence are irrelevant, when the context of the ITO as a whole is taken into account.  With respect to the conclusions, opinions or beliefs referred to by the affiant, the Crown argues that, even if alternative explanations are available, these are irrelevant.  It is up to the authorizing justice to review the facts set out in the ITO and perform his or her own independent assessment of those facts.  The Crown argues that the inferences made by the affiant throughout the affidavit are reasonable and supported by the observations set out in the ITO, particularly when the context of the entire investigation is taken into account.

[34]        Although the defence sought leave to cross-examine on a number of areas in the ITO, counsel stated that the essence of the application was based on the affiant’s stated belief that Mr. Prasad was supplying controlled substances to the drug runners operating the drug line.  The defence argued that this was misleading because it was “not the only rational inference” from the observations set out in the ITO.  It was said that an equally consistent inference from these transactions was that Mr. Prasad was purchasing controlled substances from the drug runners.  The defence sought leave to cross-examine the affiant on the paragraphs in the ITO which set out his belief that Mr. Prasad was supplying drugs.

[35]        A similar issue arose in the case of R. v. MacNeil, May 3, 2010 (New Westminster Registry, Docket X72393).  In that case, the accused applied for leave to cross-examine the affiant in a challenge to the admissibility of wiretap evidence.  He alleged that the affiant had made false and misleading statements and drew inferences in the summary that were not fair to the accused.  Gerow, J. concluded that cross-examination may reveal that the affiant had overstated the inferences or conclusions that could be drawn from the evidence in the affidavit.  But, she held that the belief and opinion of an affiant as to what inferences can or should be drawn from the evidence in an affidavit is irrelevant.  The inferences to be drawn are for the authorizing judge, based on the totality of the material set out in the affidavit.

[36]        After addressing the details of the impugned summary, Gerow, J. concluded that cross-examination of the affiant would not assist in a determination of the issues on the voir dire and would not be permitted.  She held:

[37]        This ruling was upheld in the Court of Appeal at R. v. MacNeil, [2013] B.C.J. NO. 696:

[38]        The same point was made in Pires and Lising where Charron, J. held that the affiant’s belief in the truthfulness of the informant relied upon in a wiretap authorization was “immaterial”:

[39]        The arguments the defence has made in this application are similar to those dismissed by the courts in MacNeil and Pires and Lising.  The defence is challenging the affiant’s belief and opinion.  This is not relevant to whether there are reasonable grounds, on an objective basis, to believe the offence of trafficking has been committed by Mr. Prasad.  The facts which form the basis for the affiant’s belief are fully set out in the ITO.  The justice who granted the search warrant was in a position to consider those facts independently and determine whether reasonable grounds had been made out.

[40]        Many of the arguments advanced by the defence to support its application for leave to cross-examine the affiant are speculative in nature.  The defence has argued that the affiant may agree in cross-examination that there are other reasonable inferences available on the evidence.  As noted by Finch, J.A. in the Court of Appeal decision in Pires, “the Garofoli test is not met by showing a mere possibility that discrediting testimony may be obtained” (at para 77). 

[41]        The possibility that the affiant may agree in cross-examination that the observations may also be consistent with drug purchases does not meet the test for leave.  In addition, cross-examination on this point is unnecessary.  The point can be made through submissions on the face of the ITO.  I am not satisfied that there is a reasonable likelihood that cross-examination of the affiant would add anything that would impact on the determination of whether there is a basis upon which the justice could have granted the search warrants in this case.

[42]        I make the same conclusions regarding cross-examination of the affiant on his belief that Mr. Prasad was picking up money from the drug runners from the sale of drugs on November 18, 2014 and December 4, 2014.  The officer set out the facts which formed the basis for his belief in the ITO.  It was up to the justice who granted the search warrant to make his or her own inferences from those facts.  Whether those inferences are reasonable can be argued on the face of the ITO.

[43]        In its argument for leave to cross-examine the affiant, the defence neglected to mention a number of significant facts, within the ITO.  These facts were relevant to the basis for the affiant’s belief that Mr. Prasad was supplying drugs.  As quoted earlier, when determining whether to grant leave to cross-examine, “the likely effect of the proposed cross-examination must be assessed in light of the affidavit as a whole”:  Pires and Lising (para. 69) (emphasis added).

[44]        Throughout the ITO, before coming to the conclusions that are challenged by the defence, the affiant states “Based on the context of this investigation, I believe...”  It is clear from a proper reading of the ITO as a whole that the affiant’s conclusions are not simply based on the facts and observations for one particular transaction.  They are based on a consideration of the facts and observations from the entirety of the investigation.  Yet, when challenging the reasonableness of the inferences in argument, the defence confined itself to the observations made from each particular transaction.  This is not a proper assessment of the foundation for the conclusions made by the affiant.

[45]        The defence also failed to mention in argument the following facts from the ITO that are relevant to the conclusions drawn by the affiant:

[46]        This evidence supports the conclusions that were drawn by the affiant.  It also detracts from the defence argument that the officer was misleading when he set out his belief that Mr. Prasad was supplying drugs.  I do not agree that there is an equally consistent inference that Mr. Prasad was simply purchasing drugs.  It is a possible inference.  But that is clear from the information in the ITO.  Cross-examination would not assist.  I do not believe cross-examination would elicit testimony tending to discredit the existence of reasonable and probable grounds to believe that the driver of the Matrix, said to be Mr. Prasad, was trafficking in drugs.

[47]        This is not a situation in which the affiant has made bald assertions or drawn conclusions that were not founded in the evidence.  When the conclusions drawn by the affiant are considered on the whole of the evidence set out in the ITO, they cannot be said to be unreasonable.

[48]        The defence has argued that the affiant portrayed himself as an expert in drug investigations in the ITO.  It is said that, because the justice of the peace reviewing the ITO would not have the same expertise, he or she would place undue reliance on the opinions of the affiant.  I do not agree with this argument.

[49]        A similar argument was made in MacNeil.  Gerow, J. referred to the description of the role of the authorizing judge from Pires and Lising before concluding that the argument had no foundation.  She held that it was inappropriate to suggest that the authorizing judge would be unduly influenced by the affiant’s opinion and ignore the duty to review the material independently.

[50]        There may be other possible inferences or conclusions that could be drawn from the observations set out in the ITO.  But, as noted in MacNeil and Pires and Lising, the inferences made by the affiant are irrelevant.  It is the inferences made by the authorizing justice from the evidence in the affidavit that matters.  The defence has not argued that the affiant failed to provide full, fair and frank disclosure of all relevant information.  The argument is that the affiant wasn’t full and frank in his opinion, because he did not mention alternate inferences which could be drawn.  The fact that alternate inferences could be drawn from the observations is clear on the face of the ITO.  Cross-examining the affiant with the hope that he would agree that alternate inferences are available would not assist the court in determining the sufficiency of the ITO.

[51]        I disagree with the defence’s interpretation of the reasoning in R. v. Morelli, 2010 SCC 8.  The ITO in that case was deficient because it omitted a number of material facts favourable to the defence.  The court held that “The informant’s obligation is to present all material facts favourable or not” (at para. 58).  The defence here argues that this statement should be read to include, not just material facts, but “all material conclusions”.  That is not the law as I understand it.

[52]        As noted in the MacNeil decisions, at the trial level and in the British Columbia Court of Appeal, what is important is to include the material facts.  It is up to the issuing judge what conclusions should be drawn from those facts.

[53]        In addition, it must be kept in mind that, even if alternate explanations are available on the evidence, that would not necessarily form a basis to set aside the search warrant.  The test for the reviewing judge is whether there is any basis upon with the warrant could have been granted.  As a result, cross-examination to show that there are alternate inferences or conclusions which could be drawn from the observations set out in the ITO would not “elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds” (Garofoli).

[54]        The defence sought leave to cross-examine the affiant on a number of other specific matters.

[55]        The defence wants to cross-examine the affiant on the fact that there was no surveillance on Pepper on December 4, 2014 between 7:01 pm, when she told Cpl. Rettie she did not have the methamphetamine yet, and 7:50, when she met up with the Matrix and is believed to have obtained the methamphetamine from Mr. Prasad.  The defence argued that in cross-examination the affiant “could change his opinion in the ITO”.  This is speculation.  In addition, in the unlikely event that the officer agrees that, because there was no surveillance in this time period, the observations were as consistent with a drug purchase as with a drug supply, that does not advance the defence challenge to the sufficiency of the ITO.  It is the authorizing justice’s inferences that count, and whether there is any basis for such inferences.  There is clearly a basis for the inference in the ITO.

[56]        Paragraph 42(l)(i) - On November 18, 2014, after meeting with the Matrix in Surrey, Pepper told Cpl. Rettie that she had just picked up the drugs “in Surrey”.  Counsel wishes to cross-examine the affiant on the fact that Cpl. Rettie’s notes do not show that Pepper said “in Surrey” when she spoke with him on the telephone at 3:00 pm.  The defence acknowledges that Pepper told Cpl. Rettie that she had picked up the drugs “in Surrey” when she met with him at 4:03 pm.

[57]        The defence argues that “the minutiae are important”.  I do not agree that this type of minutiae is important in an application of this nature.  Courts have repeatedly emphasized the need for counsel and the court to remain strictly focused on the issues to be determined on a review of the authorization or search warrant.  Cross-examination on this point would not assist in the determination of the issues before the court.

[58]        The defence also wishes to cross-examine the officer on some of the surveillance observations on November 18, 2014, referred to on page 63 of the ITO.  The defence asserts that there is a short video of the transaction which suggests some difference in the observations stated in the ITO and what is shown on this video.  I do not believe cross-examination in this area would assist.  The officer makes it clear at the beginning of the paragraph that the observations he sets out were based on a review of the surveillance reports.  He makes no reference to having reviewed a video.

[59]        January 23, 2015 - As part of its challenge to whether the ITO discloses reasonable grounds connecting the offences to unit 207, the defence wishes to cross-examine the affiant on observations made on January 23, 2015.  The affiant refers to observations noted in a surveillance report for this day:  Cst. Strikwerda “heard a door being locked with keys and then observed Prasad walking from the direction of apartment 207…”

[60]        The defence argued that this is a “mischaracterization of Cst. Strikwerda’s observations”, because Cst. Strikwerda’s notes say:

[61]        Defence says there is a significant difference between these two descriptions of the evidence tying Prasad to apartment 207 and he should be entitled to cross-examine the affiant on this.

[62]        I do not agree for two reasons.  First, the affiant said he got his information in this paragraph from the surveillance report.  That report matches what is set out in the ITO.  It would not be of any assistance to allow cross-examination of the affiant on Cst. Strikwerda’s notes.  These were not something that the affiant claimed to have read in connection with this paragraph, nor was there any obligation on him to read the notes.  The defence argued that the affiant claimed to have read all of the notes of the officers.  That is not what the affiant stated.  At paragraph 28 the affiant states he read all of the notes written by the undercover officers, but does not say he read all of the notes of all officers.  

[63]        Second, I do not believe there is a significant difference in the description that would undermine the grounds for believe that Prasad was connected to this apartment.

[64]        Defence also seeks leave to cross-examine on dial-a-dope organizations in general, including that different individuals may be using the same vehicle.  This struck me as a fishing expedition by the defence.  The defence did not show that there was a  reasonable likelihood of eliciting evidence which strikes at the foundation of the authorization.

[65]        The defence wishes to cross-examine the affiant on paragraph 7 of ITO, where he sets out his expertise in drug investigations.  The officer states that he routinely provides expert opinions to other investigators.  The defence wants to cross-examine the officer on whether the opinions he gives to other investigators are formal opinions or just casual conversation over coffee.  The defence says this is relevant to determine whether the officer may have overstated his expertise. 

[66]        In my view the defence is speculating.  There is no basis to the suggestion that the officer may have overstated his expertise.  The officer made his experience in drug investigations clear in the ITO, including the fact that he has provided expert opinions to other officers in the past on drug investigations.  I do not believe there is a reasonable likelihood cross-examination of the affiant on this paragraph would elicit evidence which is relevant to the foundation for granting the search warrants.

[67]        The defence has not satisfied me that cross-examination of the affiant is necessary to enable Mr. Prasad to make full answer and defence.  I accept that the threshold to allow cross-examination is not an onerous one.  But I do not believe there is any basis, on the information before me, for the view that cross-examination would elicit testimony tending to discredit the existence reasonable and probable grounds to believe the offences had been committed and that evidence of the offences would be located in a search of the Matrix vehicle and unit 207.  Mr. Prasad’s application to cross-examine the affiant is dismissed.

[68]        As noted earlier, I have found that the defence has met the low threshold required for the court to enter into a voir dire to challenge the admissibility of evidence obtained in the searches under s. 8 of the Charter.  This is a lower threshold than the test which must be met by the defence in an application to set aside the search warrants. 

[69]        If the defence intends to pursue a voir dire, the defence will be limited to arguing on the facial sufficiency of the ITO; that is, whether the ITO set out reasonable and probable grounds to believe that Mr. Prasad had committed the offences alleged, and that evidence of those offences would be found in the Matrix vehicle and unit 207.  In determining whether to proceed with a challenge to the warrants, the defence must recognize that my findings with respect to the application to cross-examine the officer are also highly relevant to a hearing on the sufficiency of the grounds in the ITO.