IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           In the course of a drug investigation, the RCMP successfully applied for two search warrants in relation to two apartments on November 2, 2017. These are #311 – 883 Academy Way Kelowna, BC (the “Academy Way” apartment hereafter), and #203 – 3550 Woodsdale Road Lake Country, BC (the “Woodsdale Road” apartment hereafter). Mr. Chau and Mr. Nguyen apply to set aside both these search warrants on the basis that the Information to Obtain (“ITO” hereafter) in support of these warrants fall short of providing the requisite grounds. In Voir Dire #1 (2019 BCPC 200), I set aside a tracking warrant that was used to investigate a phone number associated with Mr. Nguyen’s alleged drug trafficking group. Consequently, I excised certain paragraphs of the current ITO that were clearly the fruits of the execution of that tracking warrant. In the result, Crown counsel and counsel for Mr. Nguyen are in agreement that, post excision, the ITO cannot support the warrant as it relates to Academy Way. Mr. Nguyen now applies to set aside the search warrant as it relates to Woodsdale Road. In Voir Dire #3 (2019 BCPC 246), I ruled that the excisions available to Mr. Nguyen were not available to Mr. Chau. Consequently, a review of the ITO’s as the case relates to Mr. Chau will include the paragraphs which flowed from the tracking warrant which I had set aside as against Mr. Nguyen. Even so, Mr. Chau says that the ITO’s pertaining to both apartments fall short of providing the requisite grounds and applies to set aside both search warrants.

[2]           Before analyzing the main issue of whether the ITO, as amplified on review, was sufficient in providing a basis for the two search warrants, both Mr. Chau and Mr. Nguyen asked this Court to make a number of additional excisions. In the alternative, they say that I ought to give the impugned paragraphs no weight. I will first deal with these arguments.

[3]           Both applicants ask that this Court excise, or give no weight to, the information given by the 3 confidential informants for primarily two reasons. Firstly, they say that the affiant used boiler plate language in giving the background and pedigree of the three informants. At paras. 24 – 29 of the ITO, Cpl. Fradette used the exact same wording to describe the motivation and reliability of the 3 informants involved in this case. They are as follows:

[4]           Trial judges have been cautioned against the potential mischief that boilerplate language could cause. In R. v. Araujo, 2000 SCC 65, the Court said at para. 47:

[5]           In the case at bar, Cpl. Fradette agreed that the wording he used to describe the pedigree of the Informants was cut and pasted from a previous ITO. However, he also confirmed in his viva voce evidence that the content of those paragraphs were true and applied to the respective informants. He said that the content was “tailored to each individual” but he chose generic wording so as to protect the identity of the informants. In light of his explanation, I am satisfied that those paragraphs were not misleading. Indeed, if they are true and in fact applied to the informants, I do not see the sense of the affiant retyping any particular paragraph, rather than using the “cut and paste” function. Nor do I see any sense in the affiant going out of his way to use some other words to describe the same thing, just for the sake of the paragraphs appearing different.

[6]           A second attack advanced against the Confidential Informant information is that they are, for the most part, undated and unsourced. The ITO does not say how the respective informants come to know a particular piece of information (first-hand, second-hand, or through the rumour mill). The ITO also does not contain dates to which their information applied, or when the affiant received the information from the informant. I expressed these concerns in Voir Dire #1 at para. 16. However, one must keep in mind that my previous ruling related to the reliability of the information as it pertained to the connection between a specific phone number and Mr. Nguyen personally. When I read the informants’ information as a whole, however, I find that the level of detail provided goes some ways to allay the concerns that I had when the tracking warrant was sought. Specifically, the informants provided details about the various people involved in the alleged drug trafficking group as well as the various vehicles associated to that group. Additionally, by the time the ITO was written to seek the two search warrants in question, much of the informants’ information had been corroborated by police investigation. In the result, I am not inclined to discount the confidential informants’ information in the manner suggested by the applicants.

[7]           The Applicants say that there were a number of paragraphs in which Cpl. Fradette simply expressed his opinion and made conclusory statements that were not based on the evidence. As a corollary of this challenge, they say that the experience of Cpl. Fradette as a drug investigator was not laid out in the ITO. There was no information with respect to the number of investigations he has done, the roles he has played, or the training he has taken. As such, Cpl. Fradette’s opinions should not be relied upon. For example, on a number of occasions, Cpl. Fradette opined that a drug dealer is “loading” another drug dealer with drugs based on observations made during surveillance. These paragraphs, say the Applicants, ought to be excised from the ITO or, at the very least, be given no weight.

[8]           While I agree with the general proposition that bald conclusory statements do not advance an ITO any, I do not have any difficulty with the affiant expressing in the ITO the inferences that he drew, based on the evidence that was available. Indeed, I agree with the Crown that, in an ITO, it is a requirement that the affiant state his/her subjective belief that an offence has been committed. The strength of that opinion will then rest upon the credibility and reliability of the underlying evidence. Where Cpl. Fradette expressed an opinion for which there was no basis, I have disregarded it in its entirety. For example, at para. 51(c) (as the ITO applies to Mr. Chau), Cpl. Fradette speculated that Mr. Nguyen had changed his phone number before the police began monitoring it because there was no activity associated to this phone. This latter fact is clearly inconsistent with the theory that this particular phone number is associated to the drug trafficking group. However, being committed to his theory, Cpl. Fradette offered an opinion to rationalize this apparently inconsistent fact that was not based on the evidence.

[9]           On the other hand, where Cpl. Fradette opined that a certain drug dealer was “loading” another drug dealer, they were based on observations made by the surveillance team. The strength of the opinion on any particular occasion will depend on the quality of the underlying observations and surrounding circumstances. Keeping in mind that a reviewing judge must look at the evidence in its totality, I cannot say that I am persuaded to excise or completely discount any other instances where Cpl. Fradette offered a similar opinion in the ITO.

[10]        The Crown concedes that Cpl. Fradette’s experience was not well laid out in the ITO. It certainly would have been more helpful had the issuing justice known about Cpl. Fradette’s background. However, Cpl. Fradette did say that he had been an RCMP member since 2004, and that he has been with the Vernon General Investigation Section since 2012. It is also obvious that he was engaged in this particular drug investigation. As such, in my view, it would have been open to the issuing justice to afford the affiant some measure of experience and knowledge in the world of drug trafficking. In other words, the issuing justice need not read the ITO as if it were written by a lay person for whom the business of drug trafficking would be completely foreign. Accordingly, when Cpl. Fradette said that “side” means methamphetamine, it was quite reasonable for the issuing justice to have relied on it. Equally, when Cpl. Fradette explained the concept of one drug dealer “loading” another, it was open to the issuing justice to accept that. In any event, this latter concept is relatively intuitive. When the consumer buys drugs from a dealer, that dealer must have gotten it from somewhere or someone, i.e., another drug dealer. Accordingly, notwithstanding the fact that Cpl. Fradette did not include his curriculum vitae in the ITO, I find that the issuing justice was entitled to rely on the explanations the affiant gave about the business of drug trafficking. I note that during his cross-examination, Cpl. Fradette was not significantly challenged about his experience as a drug investigator.

[11]        The Applicants submit that any instances of prior criminal conduct that did not result in a conviction ought to be excised. They say that such evidence is prejudicial to people subject to the warrant. In support of that proposition, the Applicants rely on R. v. Gardner and Howard, 2015 BCSC 801 at para. 59, where McEwan J. said:

[12]        The Crown, on the other hand, submits that there is no prohibition against including evidence of criminal conduct, even if no convictions resulted, as long as the evidence is reliable. In support, the Crown cites R. v. Sadikov, 2014 ONCA 72, which at para. 86, the court said:

[13]        With respect to the Applicants’ argument on this point, I do not think Hutchings goes as far as they submit it does. One must keep in mind in that in Hutchings, the court was specifically commenting on charges that proceeded through the judicial process and were dismissed. In that context, the results of those investigations may provide an unreliable basis upon which to found a warrant. But to excise all references to criminal conduct that did not result in a conviction, even though found to be reliable and true, would go counter to the objective of the reviewing judge, namely, to determine whether objective grounds existed to believe an offence had been committed, and whether the search of a place would afford evidence. I agree with the Crown that, in a review of an ITO, one does not engage in the balancing between prejudicial effect and probative value as one would during the trial stage. All of the information in an ITO, on one level or another, is prejudicial. To do the kind of weighing suggested by the Applicants at this stage would be taking on the trappings of a trial that Sadikov warned against. For that reason, a cognate criminal record of an accused would be generally inadmissible at trial, whereas it is a relevant consideration in an application for a warrant (see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at para. 58, e.g.).

[14]        The view advanced by the Applicants would also result in three practical conundrums. If the admissibility of criminal conduct turns on whether a criminal conviction resulted, should an affiant include it in the ITO? At the time of its writing, decisions about whether to lay charges about certain portions of an investigation have not yet been made and the result of any legal proceedings may not yet be known. The affiant could not possibly be in a position to know whether to include it in the ITO in those cases. Secondly, should the issuing justice consider the impugned conduct? For the above reasons, she/he cannot predict whether the conduct in question will result in legal proceedings, let alone the results of same. Thirdly, what if the legal proceedings with respect to the criminal conduct complained of are still outstanding at the time a reviewing judge is looking at the ITO? Should the decision to set aside a warrant be deferred until the conclusion of those underlying proceedings? Would a successful appeal of the underlying charges reverse the reviewing judge’s decision to set aside a warrant? The logical conclusion of the applicants' position may lead to an ex post facto assessment of the ITO which the jurisprudence clearly tells us it should not be.

[15]        In my respectful view, whether criminal conduct are properly in an ITO should not hinge on whether there were legal proceedings, or the results of same. Sometimes, the result in a legal proceeding have nothing to do with whether the allegations are true. A stay of proceedings may be granted for a violation of an accused’s s.11(b) rights, for example. Or sometimes the Crown does not proceed with charges for a whole host of reasons. If the question remains whether the ITO provides a reasonable basis to believe an offence has been committed, then whether there were legal proceedings resulting from certain aspects of the ITO seem intuitively much less relevant. Following Sadikov, there is no basis to excise information from an ITO that is correct.

[16]        Having addressed the arguments for additional excisions made by the Applicants, I turn now to a review of the ITO. The parties are in agreement that there are some basic and fundamental principles that govern this exercise. They have been summarized and applied in numerous decisions. One convenient summary can be found in R. v. Liu, 2014 BCCA 166. At para. 39, Garson J.A. said:

[17]        In addition to the above list, I would add that there is a presumption of validity. The onus is on the applicant to show that the warrant should be set aside. See R. v. Oswald, 2019 BCSC 803, e.g., at para. 49.

[18]        As referenced above, I have excised the fruits of the tracking warrant from the ITO as against Mr. Nguyen, but not Mr. Chau. As a result, the ITO is effectively different for each accused. The Crown concedes that the Academy Way warrant cannot stand as against Mr. Nguyen. And so I will now deal with the sufficiency of the ITO for the Woodsdale Road apartment as against Mr. Nguyen. I will then deal with the sufficiency of the ITO with respect to both apartments as against Mr. Chau.

[19]        Having reviewed the ITO with the applied excisions, I have concluded that reasonable grounds existed nevertheless to believe that an offence has been and/or was being committed and that a search of the Woodsdale Road apartment would afford evidence of that offence. I say so based on the following conclusions that were open to the issuing justice to draw, and inferences that were open to the issuing justice to make. Below is a chain of reasoning based on the evidence that could justify the warrant. As this was a complicated investigation involving a number of avenues, any one conclusion could be based on several factors. It is not practicable to list every excerpt from the ITO that would support any one conclusion or inference. An attempt to do so may risk the need to simply quote the ITO in its entirety. Nonetheless, below are some salient points and inferences that were readily apparent to me.

[20]        On the totality of the evidence, one could draw the inference that an offence had been committed and that searching the Woodsdale Road Apartment would afford evidence of that offence as it was likely that was one place where drugs were kept. The Malibu, the Sonata, and the Corolla were all seen at the apartment and all three vehicles were associated to drug trafficking. Here, it is worth reiterating that the above need not be the inferences I would have drawn. That is not the test. The test is whether it was reasonably open to the issuing justice to have drawn those conclusions and made those inferences. I find that it was. While each particular piece of evidence may have an innocent explanation, the evidence in its totality, given the interconnectedness of all the pieces, in my view, were sufficient for the search warrant to have been issued.

[21]        I do wish to address one specific argument raised by the Applicants as some time was spent on it during the amplification process. On October 27, 2017, the Malibu and the Sonata met briefly at Pelmewash Parkway and Gatzke Road. At para. 96 of the ITO, Cpl. Fradette said that the video surveillance captured that meeting and he observed the driver of the Malibu to hand something to the driver of the Sonata. Cpl. Fradette believed this to be drugs. During cross-examination, the video footage of this exchange was played and entered as an exhibit. It shows that the item being passed had a string attached to it. Cpl. Fradette said that, until the video was played in court, he had not noticed the string. He agreed that the item in the video looked like it could have been a key attached to a lanyard. But he did not resile from his opinion that what was passed was in fact drugs based on what else he knew about the investigation. 

[22]        I do not know with any certainty that the item passed was or was not drugs. I also cannot say that the presence of the string rendered Cpl. Fradette’s opinion impossible or even implausible. I do accept his evidence that, prior to seeing the video in court, he had not noticed that string before. I think it is fair to criticize Cpl. Fradette for not having been more careful when reviewing the video before summarizing it in the ITO. Indeed, the Crown acknowledged that the string was something that Cpl. Fradette should have described in the ITO. However, based on his state of knowledge at the time about the video and other aspects of the investigation, I cannot say that it was unreasonable for Cpl. Fradette to have opined that what was passed was in fact drugs. It was also reasonable for the issuing justice to have relied on it.

[23]        One must also remember that the present application pertains to the search warrant of the Woodsdale Road apartment – not of the Malibu or the Sonata. In other words, the issuing justice need not be satisfied that on October 27, 2017, the driver of the Malibu likely trafficked drugs to the driver of the Sonata. Rather, the question to be asked is whether searching the Woodsdale Road apartment would likely afford evidence with respect to an offence. With that focus in mind, in my view, there were many other links capable of supporting such a conclusion. These include, but are not limited to, the fact that the Sonata likely provided drugs to Sung Hwan Choi on October 27, 2017 (para. 96) and the Sonata had been seen in the parking spot associated to the Woodsdale Road apartment on October 31, 2017 (para. 100). On November 2, 2017, a Toyota Corolla was parked at the Woodsdale Road apartment. Andy Lau then drove this Corolla and met with Sung Hwan Choi and likely provided him with drugs (para. 103). Consequently, the fact that Cpl. Fradette neglected to describe the string that is readily apparent in the surveillance video does not significantly undermine the basis for the warrant.

[24]        For the foregoing reasons, Mr. Nguyen’s application to set aside the search warrant in relation to the Woodsdale Road apartment is dismissed.

[25]        Since Mr. Chau is in no better a position to attack the Woodsdale Road warrant than Mr. Nguyen, it follows that his application also fails. I now need to consider whether the Academy Way warrant ought to be set aside. For the reasons above, I conclude that there were reasonable grounds to believe that the offence of drug trafficking or possession for the purpose of trafficking had been committed or was being committed. The only other question is whether searching the Academy Way apartment would afford evidence of that offence.

[26]        In my view, on the totality of the evidence in the ITO, it was open to the justice to issue the warrant for the Academy Way apartment. The following are portions from the ITO that provide but one path to that conclusion:

[27]        While it is true that reasonable grounds to believe Andy Lau was a drug trafficker does not, by itself, justify a search of the apartment associated to him, I find that, in this case, the correlation between the Malibu leaving the Academy Way apartment and Selina Mitchell going to that remote location supports an inference that Academy Way was a place where drugs or other evidence are likely to be kept. Further, the fact that Jerry’s cell phone being tracked to the Academy Way apartment strengthens the basis for the warrant. Finally, the fact that three different vehicles that were likely involved in drug trafficking were all connected to the Academy Way apartment renders it probable that searching it will afford evidence. One must remember that evidence may include not only drugs, but money, packaging material, cell phones, other tools or items associated with drug trafficking, and documents evidencing ownership of the apartment or the various vehicles under investigation. With that broader scope in mind, there was clearly, in my view, sufficient grounds to believe that searching the Academy Way apartment will afford evidence of the named offence.

[28]        For the foregoing reasons, the search warrant for the Academy Way is set aside as against Mr. Nguyen only. Mr. Nguyen’s application to set aside the Woodsdale Road warrant is dismissed. Mr. Chau’s application to set aside both warrants is dismissed.