R. v. Poblete et al, 2018 BCPC 145 (CanLII)
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Date: |
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File No: |
233972-4C |
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Registry: |
Vancouver |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Criminal
REGINA
v.
MIRKO MARCELO POBLETE
STEVEN ROBERT CHOW
DAILLYN KIRSTINE SHELKE
RULING ON VOIR DIRE #1
FACIAL VALIDITY CHALLENGE OF THE SEARCH WARRANT
OF THE
HONOURABLE JUDGE R. HARRIS
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Dave Peltier and Tracey Ferreira |
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Counsel for Steven Chow: |
Kristy Lee Neurauter |
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Counsel for Mirko Poblete: |
Sandi Janicki |
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Counsel for Daillyn Shelke: |
David Hopkins |
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Vancouver, B.C. |
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Date of Hearing: |
May 25, 2018 |
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Date of Judgment: |
June 11, 2018 |
A Corrigendum was released by the Court on June 25, 2018. The corrections have been made to the text and the Corrigendum is appended to this document.
INTRODUCTION
[1] On March 11, 2017, the police executed a search warrant at suite 315 – 1119 Hornby Street. A quantity of drugs were seized and Mr. Poblete was charged with three counts of possessing a controlled substance for the purpose of trafficking.
[2] Mr. Poblete applies to quash the search warrant that authorized the search of March 11, 2017. Mr. Poblete argues the Information to Obtain a Search Warrant (ITO) was facially invalid and, therefore, a justice could not have properly issued the search warrant.
[3] The Crown argues the ITO contained sufficient reliable information from which a Justice could have concluded that there were reasonable grounds to issue the search warrant.
[4] This Court must determine if the ITO contained sufficient reliable information, upon which a Justice could conclude that there were reasonable grounds to issue the search warrant.
GUIDING PRINCIPLES
[5] In R. v. Wong, 2017 BCSC 306, Mr Justice Kent adopted from R. v. Boussoulas, 2014 ONSC 5542, general principles, which guide a review of a search warrant in this regard are at paragraph 49, he stated and adopted the following:
[49] A comprehensive summary of the general principles guiding the review of search warrants can be found in R. v. Boussoulas, 2014 ONSC 5542, which was in large part adopted in R. v. Baires, 2014 BCSC 2549. I also adopt the Boussoulas summary which was based on a review of the leading case law from both the Supreme Court of Canada as well as various courts of appeal, including a number of decisions of the British Columbia Court of Appeal. The summary is as follows (internal citations omitted):
A. The Governing Legal Principles
1. The Burden on the Applicant
[5] When an accused seeks the exclusion of evidence obtained through the execution of a search warrant, the burden is upon the accused to establish: (1) that the police search was conducted in violation of the accused's right to be secure against unreasonable search and seizure, contrary to s. 8 of the Charter of Rights; and (2) that the evidence seized by the police as a result of the search should be excluded pursuant to the principles applicable under s. 24(2) of the Charter. When it is alleged that a judicially-authorized search warrant is invalid, the judicial review of the impugned search warrant begins from a presumption of validity, with the onus on the party seeking exclusion to demonstrate its alleged invalidity. … This is the burden that is upon the accused in the present case.
2. The Scope of Review – Could the Justice Have Issued the Search Warrant?
[6] When a trial judge is asked to review the sufficiency of an information to obtain (ITO) a search warrant, the judge must not approach the question of the issuance of the search warrant de novo, substituting his or her view for that of the issuing justice. Rather, the reviewing judge must determine, based on the record that was before the issuing justice, as amplified on the review, whether the issuing justice could properly have issued the search warrant. The question is not whether the reviewing judge would have issued the search warrant, but whether there was sufficient information that could have permitted the authorizing justice to conclude that there were "reasonable grounds" justifying the issuance of the search warrant. ….
[7] In approaching this review of the sufficiency of the ITO, the reviewing court must appreciate that the justice who issued the impugned search warrant made his or her decision based upon the contents of the ITO as a whole, and approached his or her assessment of the ITO in a practical, common sense, non-technical manner, permissibly drawing reasonable inferences from the contents of the ITO. …
3. Facial Challenges and Sub-Facial Challenges to Search Warrants
[8] Challenges to search warrants may be launched on the basis of the facial validity of the ITO. In such circumstances, the applicant contends that the substantive contents of the ITO, on their face, are such that the justice could not have issued the search warrant. Alternatively, such a challenge may be advanced on a sub-facial basis, with the accused attacking the accuracy and/or the reliability of the substantive content of the ITO. Each of these types of search warrant challenges requires a different type of review.
[9] When the applicant attacks the facial validity of an ITO, the reviewing judge is required to examine the entire ITO and determine whether, on the face of the information disclosed within its four corners, the justice could have issued the search warrant. The record that is examined for the purpose of determining the facial validity of the search warrant is the ITO – and only the ITO. The record is not enlarged or amplified by any additional evidence. ….
[10] Where the applicant attacks the validity of a search warrant on a sub-facial basis, such challenge involves an amplified record. The reviewing judge must undertake a more contextual analysis and must consider, on the basis of the record before the justice, as amplified on review, whether there is sufficient reliable information that might reasonably be believed upon which the authorizing justice could have issued the warrant. ….
[11] Of course, search warrants may be attacked on both a facial and sub-facial basis. The accused in the present case has challenged the validity of the search warrant in both ways. In such circumstances, the reviewing court must stay focused on the ultimate test, namely, whether on the basis of the record before the issuing justice, as amplified on review, but without reference to any excised information, there remains a sufficient basis upon which the justice could have issued the search warrant. The focus of the inquiry is on whether the record contains reliable evidence that might reasonably be believed, and on the basis of which the warrant could have issued. ….
[12] In considering the contents of an ITO on a challenge to the validity of a search warrant, it is important to appreciate that such warrants are statutorily-authorized investigative aids that are typically issued before any criminal proceedings have been commenced, and are almost invariably drafted by police officers – often under tight time constraints and without the assistance of any legal advice. Accordingly, the courts have recognized that it is unrealistic and inappropriate to measure the quality of the 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 in considering the precision of the language that was used in the document. Few search warrant applications are perfect. …. At the same time, however, a police officer drafting an ITO must always act with integrity and reasonable diligence, being mindful of his or her duty to make full and frank disclosure in ex parte proceedings, and being careful to guard against making inaccurate statements or exaggerated assertions likely to mislead the reviewing justice. ….
[13] If it appears to the court reviewing the validity of the impugned search warrant, however, that some of the information provided in the ITO was erroneous, this erroneous information must be excised and excluded from consideration on the review. On the other hand, the reviewing court may properly consider, within reason, additional evidence that may be tendered on the voir dire proceedings to correct such errors in the ITO. While this amplification evidence can be used to correct "good faith errors" by the affiant in the preparation of the ITO, it cannot be employed to cure "deliberate attempts to mislead" the authorizing justice. Further, the amplification evidence must be evidence that was available to police investigators at the time the ITO was sworn – not information that was acquired later. ….
[14] The court reviewing the ITO is also obliged to consider information that was not disclosed to the issuing justice, keeping in mind the fact that search warrant applications are ex parte proceedings and that police officers seeking such warrants are obliged to make full, fair, and frank disclosure of all material facts – whether they implicate the target of the investigation or not. In circumstances in which relevant information has, inadvertently, not been properly disclosed in an ITO, the issue for the reviewing court is whether the issuing justice, having been apprised of the omitted information, could judicially have issued the search warrant. …
[15] Importantly, as Watt J.A. observed in R. v. Sadikov, at para. 87, inaccuracies in an ITO, on their own, are "not a sufficient basis on which to ground a finding of bad faith or an intent to mislead," much less a basis on which to quash a search warrant. Rather, the existence of fraud, non-disclosure, and/or misleading evidence in an ITO, together with new evidence, are all relevant on the review of the validity of a search warrant, but they are "neither a prerequisite to, nor dispositive of, the review." As Watt J.A. noted, at para. 93, the existence of even "material errors or omissions" in the ITO "is not dispositive" of the review of the validity of the search warrant. ….
4. Information From Confidential Sources - When the ITO is Redacted
[16] When the ITO contains factual information provided by a confidential informant, and portions of that ITO have been redacted in order to preserve the confidentiality of that source, according to steps five and six of R. v. Garofoli, at p. 1461, there are two possible means by which the validity of the search warrant may be assessed. These two options are not mutually exclusive alternatives, but rather are two possible steps that may be taken sequentially or cumulatively in assessing the validity of the warrant. …
[17] First, the validity of the search warrant may be assessed solely on the basis of the information revealed by the redacted ITO. If the Crown relies solely on the redacted ITO, however, and the information has been so heavily redacted that the reviewing judge cannot conclude that the remaining information was sufficient to justify the issuance of the search warrant, the warrant must be set aside. …
[18] Second, if the editing process renders the search warrant unsupportable, the Crown may apply to have the trial judge consider so much of the redacted ITO as is necessary to support the search warrant. However, the judge should only accede to such a request if satisfied that the accused can be made sufficiently aware, by way of a judicial summary, of the nature of the redacted material so as to be able to challenge it by argument or evidence. …. This is known as the "step six" procedure, as outlined in R. v. Garofoli, at p. 1461, where Sopinka J. stated:
[6] If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence
[19] The Crown applied to use this "step six" procedure in the present case. In the result, counsel for the accused was provided with a judicial summary of the redacted information in the original ITO. This judicial summary was drafted with the assistance of the Crown in order to ensure that the identity of the confidential informant was not inadvertently disclosed. Ultimately, I was satisfied that this judicial summary: (1) maintained the secrecy of the identity of the confidential informant; and (2) ensured that the accused was sufficiently aware of the nature of the redacted information to permit him to challenge it by evidence or argument.
[20] This process has been undertaken in Ontario in a variety of cases, and it is gaining increasing acceptance as a fair and responsible procedural mechanism on this type of pre-trial motion. This process protects the identity of confidential informers while, at the same time, permitting the accused to meaningfully participate in the hearing to determine the validity of the impugned search warrant. ….
5. Reasonable Grounds
[21] In order to assess the sufficiency of an ITO used to obtain a search warrant, the court must determine whether, in the totality of the circumstances, the ITO reveals the necessary "reasonable grounds." This standard does not require proof beyond a reasonable doubt, or even the establishment of a prima facie case. Rather, this standard is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. At the same time, it requires more than an experienced-based "hunch" or reasonable suspicion. In other words, if the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the search warrant could have issued. ….
[22] Moreover, when the police rely upon information from a confidential informer to meet this standard, consideration must be given to whether the information from the informer is compelling, credible, or corroborated by other aspects of the police investigation. These are not discrete, isolated inquiries, however, and weaknesses in one area may be offset by strengths in another. ….
[6] In considering Mr. Poblete’s application, I have applied the above principles.
PROCEDURE
[7] At the start of the trial a voir dire was declared, and by agreement of counsel, a booklet containing copies of the following were filed: the search warrant, the related sealing order, and the ITO. Of note is, portions of the ITO were redacted, thus, the Court is left to consider the matter on the face of the ITO as redacted.
[8] Thereafter, counsel for Mr. Poblete presented the Court with a written argument, supporting authorities, and oral submissions. The Crown similarly provided the Court with written submissions, a summary of the ITO, a written summary of the police corroboration, supporting authorities, and oral submissions.
[9] At the conclusion of the hearing the matter was adjourned for the Court to render a decision and provide reasons.
DESCRIPTION OF THE ITO
[10] The ITO contains two main portions. The first is a standardized form titled “Information to Obtain a Search Warrant”. This is a single page and contains information related to the Informant’s belief, the place to be searched, the location to be searched, the offences believed to be committed, and the date of the offence. The form is signed and sworn, by Cst. Pughe (the “Informant”). Referred to in the form is Appendix “A” and in this regard the form states:
AND THAT the reasonable grounds in support of the application are the following: Please see Appendix “A.”
[11] The Appendix “A” is the second portion of the ITO and it is attached to the form mentioned above. Appendix “A” starts with the Informant indicating she has reasonable grounds to believe that, on or about March 11, 2017, Marko Poblete did unlawfully possess heroin for the purpose of trafficking.
[12] The next section of the ITO sets out the grounds for the Informant’s belief. This section starts with an introduction setting out the Informant’s background and the meaning of various terms found in the ITO.
[13] Next there are paragraphs related to the background and the reliability of Sources A and B.
[14] An overview of the investigation is then provided. This overview informs the reader that the matter is an investigation into the accused who was believed to be trafficking drugs from his residence at 315-1119 Hornby Street and that he was supplied with drugs from another room within the building.
[15] The next section is titled, Grounds. Within this section there are several paragraphs indicating that two police officers, Cst. Brewer and Cst. Farrell, met with Sources A and B following which information received was then passed to the Informant. As for the dates that the officers met with the Sources, the redactions show the year of the meetings as 2017, as such, all that can be inferred is that the meetings occurred between January 1, 2017, and March 10, 2017.
[16] In addition to the Source information, the ITO sets out the following material information:
• On February 23, 2017, there had been a drug arrest in suite 416 – 1119 Hornby Street and during the search of that premise a score sheet was seized with the name of Marco listed and $1140 written beside the name.
• Background information related to Mirko Poblete.
• On March 10, 2017, Cst. Brewer and Cst Farrell confirmed that suite 315 existed and that the tenant list showed Poblete, Marco as being the tenant of 315.
• The Informant’s belief regarding habits associated to drug traffickers.
[17] The ITO then sets out a conclusion with four paragraphs; of significance is paragraph 4.1 which states:
Based on the grounds on this Information to Obtain, I believe that Mirko Poblete did traffic heroin and is in possession of heroin for the purpose of trafficking. Granting the accompanying judicial authorization would allow the gathering of further evidence to substantiate the charges.
ARGUMENT
[18] Counsel for Mr. Poblete challenges the ITO for the following reasons: the Informant makes a bold assertion that Marco, as identified by Sources A and B, is Mirko Poblete, the ITO as no information to support the belief that Mirko Poblete was in possession of heroin on March 11, 2017, and the ITO lacks any indicia of Source reliability.
[19] The Crown responds that when the entire contents of the ITO is considered, that there is a reasonable basis for believing that Marco and Mirko Poblete are the same person, further, there is sufficient information to support a conclusion that Sources A and B were reliable, and that the information supports the belief that Mirko Poblete possessed heroin on March 11, 2017.
1. Information related to Marco vs. Mirko
[20] Counsel for Mr. Poblete argues that, Source “A” and Source “B” provided information only referencing “Marco” as being involved in the trafficking of drugs. Whereas, at paragraph 2.1 of the ITO, the Informant concluded, without any factual underpinning, that Mirko Poblete also goes by the name of Marco.
[21] The Crown states the names (Marco and Mirko) are so similar that a common sense inference reasonably supports the conclusion that Marco and Mirko is the same person.
[22] In the circumstances, it would have been preferential for the Informant to provide the information supporting her conclusion that Mirko Poblete also used the name Marco, despite this; it is not an unreasonable inference to conclude that Mirko and Marco is the same individual. I say this because of the similarity of name and the unity of location, that being, the Murray Hotel.
2. Lack of time frame
[23] Counsel for Mr. Poblete argues there is no basis upon which the Informant could have reasonably concluded on March 11, 2017, that Mr. Poblete was in possession of heroin.
[24] In support, Counsel points out the Source information simply contains the year (the day and month are redacted) that the police met with the Sources, thus, all that can be concluded is at some point in 2017, the police met with the Sources. In essence, the information received could relate to events prior to or after 2017.
[25] Counsel also argues the score sheet containing the name Marco seized on February 23, 2017, does not assist in leading to the inference that Mirko possessed heroin on March 11, 2017. This is because there is no indication as to when the score sheet entry was made. As such, all that can be concluded is the entry regarding Marco was made sometime prior to the police seizure of February 23, 2017.
[26] As for the tenant list showing Mirko Poblete as dwelling in unit 315, counsel argues the document does not disclose how long he had been a tenant in the suite, nor, is there any information to indicate that the tenant list was current and if so to what date.
[27] The Crown responds, it was reasonable for the Informant to believe that Mirko Poblete possessed heroin on March 11, 2017. In this regard, the Crown argues the format of the ITO makes it clear that the police Source meetings were successive starting in 2017, thus, the Source information can be dated to between January 1, 2017, and March 10, 2017.
[28] As to other information supporting the Informant’s belief, the Crown points to the police Versaterm data base, which when queried on March 10, 2017, showed Mirko Poblete’s address as #315 - 1119 Hornby Street.
[29] When I consider the totality of the information contained in the ITO, I find there is insufficient detailed information that could reasonably support the belief that Mr. Poblete was in possession of heroin on March 11, 2017. In making my determination, I observe the information received from the Sources could relate to events before or after 2017. Further, even if the meetings were successive, there is no date to the information given to the officers. I also observe that the comments related to the Versaterm data base, only indicates the results of the search performed on March 10, 2017, and no information about when the entry was made. In other words, the recency of the information is unknown. The information regarding the tenant list is some information linking Mr. Poblete to the suite; however, it is of minimal assistance, because there is no information as to when he became a tenant or how long he had been a tenant. Moreover, this information only goes to tenancy, not to possessing heroin on a specific date.
[30] As for the Source information indicating that Marco had drugs in his room all of the time, there is no information as to when this conclusion was drawn or how. Specifically, how many times had the Source made this observation and when was the last time? All that is known is that sometime in 2017, Source A conveyed this information to the police. To rely on it to support the belief that Mirko Poblete was in possession of heroin on March 11, 2017, is unreasonable. Simply stated, one could not reasonably conclude on the information in the ITO that Mirko Poblete possessed heroin on March 11, 2017.
[31] In reaching my conclusion, I have considered the totality of the information in the ITO. I also recognize the standard is not proof beyond a reasonable doubt, nor, is it a prima facie case; rather, what is required is a standard of credibly based probability which is lacking.
3. Reliability of Source A and Source B
[32] Counsel are in agreement that the principles related to the assessment of information received from an informer are found in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.CR 281, R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 and R. v. Garofoli, [1990] 2 S.C.J. No. 115, where at paragraph 68, Mr. Justice Sopinka concluded:
[68] … Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe.
(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:
(a) the degree of detail of the "tip";
(b) the informer's source of knowledge;
(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.
(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.
[33] Counsel for Mr. Poblete argues the information received from Source A and Source B lacked any indicia of reliability. In this regard, counsel asserts the information provided lacks detail on the following points:
• how and when Marco’s room got stocked with drugs;
• Marco has been busy selling drugs in the Murray Hotel;
• Marco is still dealing dope;
• that Marco’s room has one room only and that are drugs there all the time;
• that Marco’s room has unusual things going on; and
• that DD was in Marco’s room with other people.
[34] Counsel also challenges the origin of the Source’s knowledge, the Source’s past performance and the police corroboration. In this regard, Counsel highlights the following:
• there is no information of the previous Source information resulted in findings of guilt; and
• the police did not corroborate the assertion “Marco is selling drugs.”
[35] Accordingly, counsel argues the Source information could not be deemed as reliable and cannot be relied upon to support the reasonable grounds to believe that Mr. Poblete was in possession of heroin or that he was trafficking drugs.
[36] The Crown responds by pointing out that consideration must be given to whether the information from the Source is compelling, credible, or corroborated by other aspects of the police investigation. Moreover, that weaknesses and strengths of the Information may be offset by each other.
[37] Against the above, the Crown asserts that the Source information was sufficiently reliable. Specifically, the information had sufficient detail, the police corroborated the information and that Source A and B had been previously reliable. As such, the Crown maintains the Source information was sufficiently reliable to establish a reasonable belief that Mr. Poblete was in possession of heroin.
(a) Details from the Sources
[38] The details given by the Sources were generally minimal. Source A identifies Marco’s room as being in the Murray Hotel and that it (Marco’s room) only had one room. References were also made to the following: Marco selling drugs, Marco dealing dope, that drugs were in his room all of the time, and that another room in the building stocked Marco’s room with drugs.
[39] It is clear the details related to the room (a single room) and being in the Murray Hotel provided some detail. Despite this, the information related to selling, dealing, and receiving drugs lacked detail. For example, there is no information about the time the drugs were sold, how the drugs were packaged, where the drugs were stored, how the customers accessed the building, or where the money was stored. There is simply the statement of the actions and no details; hence, one cannot evaluate the broad assertion of selling drugs or dealing dope.
(b) Source of Knowledge
[40] Counsel for Mr. Poblete attacks Sources A’s and B’s origin of knowledge by arguing that the paragraph in the ITO detailing what the Informant defined as a Sources’ personal knowledge should be given no weight or excised.
[41] Counsel’s argument is based on the content of paragraphs 1.5 and 3.3(b) of the ITO:
1.5 In this document there is information that has been given to police by confidential informants who I will refer to individually as a source by a letter. Unless I say otherwise, information given to the police by the confidential informants is the personal knowledge of the informants. By personal knowledge I mean that the confidential informants personally saw the event described, heard the information from a conversation with one or more of the people mentioned in the Information or overheard a conversation involving one or more of those people. …
[42] At paragraph 3.3(b), the Informant wrote:
3.3(b) Source A heard that someone directly observed a handgun inside Marco’s room.
[43] Based on the above, Counsel argues the information about the gun is not personal knowledge and that it is vague. As such, Counsel is of the view that the Informant’s attestation as to personal knowledge is incorrect when examined with paragraph 3.3 (b).
[44] In my view, the lack of clarity in paragraph 3.3 (b) does not taint the paragraph related to the Informant’s defined term of personal knowledge. I see that paragraph (1.5) as being consistent with the Informant’s definition. Despite this, I give the information regarding the gun no weight because it is hearsay, from an unknown Source, and lacks detail.
(c) Past Performance
[45] Counsel for Mr. Poblete acknowledges that information previously provided by the Sources has led to search warrants and the recovery of illegal items and charges. Nevertheless, counsel cautions that there is no indication if the charges resulted in findings of guilt or if the search warrants were challenged and upheld.
[46] A review of the ITO satisfies me that there is sufficient information on which the Informant could reasonably conclude that Source A has previously established that he/she is reliable. Specifically, Source A has provided information on eight previous occasions with the information being used on other search warrants, wherein drugs were seized and charges laid.
[47] As for Source B, I observe, unlike references to Source A, there is no reference that Source B has proven reliable. Despite this, Source B has provided information on at least two occasions and the information has been used in search warrants with the result that property was recovered and persons charged.
[48] As to the assertion that the past performance of a Source is measured, in part, by whether or not their information resulted in convictions or if the search warrants were upheld is, in my view, too far removed from the issue of the Source reliability and diverts from assessing the reliability of a Source. Specifically, a finding of guilt or the dismissal of a charge may have nothing to do with the reliability of the Source. Similarly, the quashing of a search warrant may have nothing to do with the reliability of a Source.
(d) Police Corroboration
[49] Counsel for Mr. Poblete argues the police failed to take meaningful steps to corroborate assertions by the Sources.
[50] The Crown responds that the police corroborated the information in several ways. They checked Mirko Poblete’s address on Versaterm, they learned of Mr. Poblete’s drug arrest in 2015, they confirmed suite 315 existed, they checked the tenant list, and they confirmed the identity of a person going by the name of “DD”.
[51] With respect to the above, the police did corroborate some information provided, specifically, that a person with a name similar to Marco lived in the Murray Hotel, that the person had an association with drugs and that there was some link between DD and Marco. As for confirming that suite 315 existed, this did not corroborate any of the Source information, because neither Source identified suite 315 as being Marco’s suite.
CONCLUSION SOURCE RELIABILITY
[52] Considering all of the information provided, I am satisfied the Source information was sufficiently reliable and, therefore, it should not be excised from the ITO, nor should it be given little weight. My finding is based on the totality of the circumstances including: the details contained in the tips, origin of knowledge, past performance, and confirmation from other sources.
CONCLUSION ON APPLICATION TO QUASH THE WARRANT
[53] When I consider all of the information and submissions, it is my view that the ITO contains no information that could reasonably support the Informant’s conclusion that Mirko Poblete was in possession of heroin or that he trafficked in heroin on or near the date of March 11, 2017.
[54] Accordingly, I excise paragraph 4.1 of the ITO, and from page 1, I excise the portion where the Informant stated the date of the offence (March 11, 2017) and the offences (possession of a Schedule 1 substance for the purpose of trafficking).
[55] Having excised the above information, I am of the view that a justice could not have issued a warrant on the basis of the remaining information.
[56] Accordingly, the application to quash the search warrant is granted.
_____________________________
The Honourable Judge R. Harris
Provincial Court of British Columbia
CORRIGENDUM – Released June 25, 2018
In my Ruling on Voir Dire #1 Facial Validity Challenge of the Search Warrant dated June 11, 2018, the following changes have been made:
[1] On the cover sheet, the sequence of the accused names has been changed, it now reads as follows:
MIRKO MARCELO POBLETE
STEVEN ROBERT CHOW
DAILLYN KIRSTINE SHELKE
[2] On the page headers, “R. v. Chow et al” should be “R. v. Poblete et al”.