



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rover, 2018 ONCA 745

DATE: 20180912

DOCKET: C63274

Doherty, Pepall and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Rover

Appellant

Kathryn Wells, for the appellant

Jeremy Streeter, for the respondent

Heard: June 6, 2018

On appeal from the convictions entered on July 25, 2016 by
    Justice Robert Charney of the Superior Court of Justice.

Doherty J.A.:


I



overview

[1]

The appellant was charged with various drug-related offences. He
    initially elected trial by judge and jury. On a pretrial motion, the appellant
    challenged the admissibility of the drugs seized from his residence, alleging
    various
Charter
violations. The trial judge dismissed the motion, with
    reasons reported at
R. v. Rover,
2016 ONSC 4795. The appellant
    re-elected trial by judge alone and the evidence heard on the motions was taken
    as introduced at the trial. The appellant did not offer any other defence to
    the charges. He was convicted of three counts of possession of different drugs for
    the purpose of trafficking, including one count of possession of fentanyl for
    the purpose of trafficking. The appellant received a sentence of 20 months on
    top of a credit of 3 years, 6 months for pretrial custody.

[2]

The appellant appeals his convictions only.

[3]

I would allow
    the appeal. I would hold that the trial judge erred in finding that the police,
    having chosen to arrest the appellant before they had obtained a warrant to
    search his residence, were entitled to delay the appellants right to speak to
    counsel for several hours while they applied for, obtained, and executed the
    search warrant. I would also hold that, on a proper appreciation of the nature
    of the s. 10(b) breach, the evidence discovered in the search of the
    appellants residence should have been excluded under s. 24(2) of the
Charter
.


II



FACTS

[4]

The police received an anonymous tip that an unknown black male was
    dealing drugs from a residence in Whitby. The tipster reported seeing vehicles
    arriving at the residence, staying for a few minutes and then leaving. He
    described the drug dealer as 62, with dark skin, a slim build, and wearing a
    jacket.

[5]

The police set
    up surveillance at the residence. Over the next five hours, they saw a pattern
    of traffic coming and going at the residence, which they believed confirmed the
    tip provided by the anonymous informant. The police also arrested two women
    shortly after they drove away from the residence. One of the women admitted to the
    police that she had purchased cocaine from the occupant of the residence. The
    police found cocaine in the vehicle.

[6]

Based on the tip, their observation of the traffic at the residence, and
    the womans admission, the police decided they had reasonable and probable
    grounds to arrest the occupant and obtain a warrant to search the residence.

[7]

The occupant, who matched the general description given by the tipster,
    turned out to be the appellant. The police arrested him later the same evening.
    Early the next morning, they obtained and executed a search warrant at the
    residence. They found the drugs that are the subject matter of the convictions
    under appeal.

[8]

The appellant renews the
Charter
arguments made at trial. The
    first two are related and allege arbitrary detention and a breach of s. 9 of
    the
Charter
. The third argument arises out of the police refusal to
    allow the appellant to speak to his lawyer until several hours after his
    arrest.

[9]

I would reject the first two arguments substantially for the reasons
    given by the trial judge. I would, however, accept the third. The appellants
    constitutional right to speak to his lawyer upon arrest was breached and the evidence
    should have been excluded.


III



A: The Section 9 Claims

[10]

The
    appellant submits that the police did not have reasonable and probable grounds
    to arrest him, and that his detention was therefore contrary to s. 9 of the
Charter
.
    The appellant submits that this violation triggers s. 24(2) and warrants the
    exclusion of the evidence seized from the residence.

[11]

The
    appellant also submits that the police did not have reasonable and probable
    grounds to arrest the two women who were arrested shortly after driving away
    from his residence. The police had observed the vehicle drive up to the
    residence. One of the women had gone into the residence and exited a short time
    later. Based on their other observations and experience, the police officers believed
    that the woman had gone into the residence to purchase drugs. They followed the
    car, pulled it over, and arrested both occupants. They found cocaine, and one
    of the occupants confirmed that she had purchased the cocaine from the occupant
    of the residence.

[12]

The
    appellant submits that this unlawful arrest is relevant to the case against him
    because the police relied on the discovery of the cocaine and the admission
    made by one of the women after the arrest to obtain the warrant to search the
    appellants residence. The appellant maintains that, because the womens arrest
    was unconstitutional, any information obtained by the police as a consequence
    of that arrest must be excised from the affidavit used to obtain the search
    warrant. The appellant further argues that, absent the information obtained as
    a consequence of the womens arrest, the affidavit did not contain adequate grounds
    upon which a warrant could be issued. The search of the residence was therefore
    warrantless and a breach of s. 8 of the
Charter
.

[13]

The
    court did not call on the Crown on either of the first two grounds of appeal. There
    is a simple answer to both. The police had reasonable and probable grounds to
    arrest the occupants of the vehicle and the appellant. The trial judge
    thoroughly reviewed the applicable law and set out the factual basis upon which
    he was satisfied that the police had grounds to make the arrests: see
Rover
,
    at paras. 28-35 and 53-54. I would defer to that assessment.
[1]

B: The Section 10(b) Claim

(i)

The trial
    proceedings

[14]

The police
    arrested the two women in the car with the cocaine at around 8:45 p.m. They subsequently
    decided to arrest the appellant, charge him with trafficking in narcotics, and search
    his residence for narcotics. For safety reasons, the police did not want to
    arrest the appellant in his residence. They waited until he left at 10:33 p.m.,
    and arrested him a short distance from his residence at 10:41 p.m. At almost
    the same time as the appellant was being arrested, another officer involved in
    the investigation was submitting a search warrant application. There was no
    evidence that the police turned their mind to whether they should obtain the
    warrant to search the residence before arresting the appellant.

[15]

The officer who
    arrested the appellant at 10:41 p.m. advised him of his right to counsel, as
    required by s. 10(b) of the
Charter
. The appellant immediately exercised that right and
    indicated that he wished to speak to his lawyer. The arresting officer had been
    told by one of the investigators that the appellant should not be allowed to
    speak to counsel until after the warrant had been executed. Various officers
    referred to this as the customary or standard practice. No formal written
    policy to that effect was produced at trial.

[16]

The
    appellant was taken into custody. He was not told why he was not being allowed
    to speak to counsel or when he would be allowed to speak to counsel.

[17]

The
    police received the signed telewarrant at 12:50 a.m. At 2:55 a.m., a special entry
    team, assembled after the warrant was issued, entered the residence and secured
    the scene. The search began at 3:01 a.m. At 4:20 a.m., the arresting officer
    was told by the investigators that he could allow the appellant to contact his
    lawyer. For various reasons, the appellant did not speak to counsel until 5:45
    a.m. The police did not attempt to speak with the appellant before he had an
    opportunity to speak with counsel.

[18]

At
    trial, the appellant argued that the police breached his right to counsel when
    they did not immediately give him access to a lawyer upon request. The trial
    judge accepted that a detainee who asserted their right to counsel was entitled
    to contact counsel without delay. He further held, however, that in some
    circumstances public and police safety concerns or concerns about the
    preservation of evidence could justify a delay in allowing access to counsel.
    The trial judge held that a search of a suspected drug dealers residence engaged
    sufficient concerns about officer safety and the preservation of evidence to
    justify some delay in providing the arrested individual with access to counsel:
Rover
, at paras. 66-70. The trial judge went on, however, to find that
    there was no justification for the delay after the residence had been secured
    at 3:01 a.m. He concluded that the delay between 3:01 a.m. and 4:20 a.m. when
    the appellant was told he could contact counsel constituted a breach of s.
    10(b):
Rover
, at para. 71.

[19]

The
    trial judge then turned to s. 24(2) of the
Charter
. He agreed that the
    breach of s. 10(b), which he calculated as a delay of about 1 hour and 20
    minutes in allowing the appellant to access counsel, was a serious breach reflecting
    the polices disinterest in [the appellants] rights:
Rover
, at para.
    77. In considering the impact of the breach on the appellants rights, the
    trial judge noted that the police did not question the appellant while he was
    detained without access to counsel. The trial judge found no causal connection
    between the breach and the obtaining of the evidence during the search. He
    characterized the interference with the appellants
Charter
-protected
    interests as moderate:
Rover
, at para. 80. Lastly, in addressing societys
    interest in an adjudication on the merits, the trial judge noted that the
    evidence in issue was real, reliable, and crucial to the Crowns case:
Rover
,
    at para. 83.

[20]

Balancing
    the various considerations, the trial judge determined that the police
    misconduct made a strong case for exclusion, the nature of the interference
    with the appellants rights made a moderate case for exclusion and societys
    interest in an adjudication on the merits tip[ped] the balance in favour of
    admissibility:
Rover
, at para. 84. He dismissed the motion to exclude
    the evidence.

(ii)

The
    arguments

[21]

Counsel
    for the appellant accepts that if the trial judge properly characterized the
    nature of the s. 10(b) breach, she cannot successfully challenge his s. 24(2)
    analysis. Counsel submits, however, that the trial judge misconstrued the
    breach, both quantitatively and qualitatively. Counsel argues that the breach
    began when the appellant asserted his right to counsel and was not given the
    opportunity to speak with counsel. She submits that the police refusal to allow
    the appellant to speak to counsel was not precipitated by anything specific to
    the police investigation of the appellant, but was the direct consequence of the
    police practice of refusing access to counsel until the search of the
    appellants residence was completed. Counsel argues that the breach of the
    appellants s. 10(b) right to consult with counsel is made all the more serious
    because it is the result of a police practice that routinely sacrifices a
    detainees constitutional right to immediate access to counsel in favour of the
    police interest in the efficient use of its resources.

[22]

The
    respondent submits that the trial judge correctly determined that the
    appellants s. 10(b) rights were denied when he was not allowed access to
    counsel at 3:01 a.m. The respondent further submits that the trial judges s.
    24(2) analysis is impeccable and reminds the court that it must defer to that
    assessment, absent errors in legal principle or an unreasonable finding:
R.
    v. Beaulieu
, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5.

[23]

Alternatively,
    the respondent submits that even if the breach of s. 10(b) occurred at the time
    of the arrest, the s. 24(2) analysis remains unchanged. The breach had
    virtually no impact on the appellants
Charter
-protected interests, as
    there was no connection between the violation and the evidence obtained. The police
    did not attempt to take advantage of the appellants inability to access
    counsel and made no effort to obtain a statement from him. The respondent submits,
    as the trial judge observed, that there is no reason to believe that anything
    would have occurred any differently had the appellant been given an opportunity
    to speak to counsel at the outset:
Rover
, at para. 80.

(iii)

Analysis

[24]

Section
    10(b) of the
Charter
guarantees to anyone arrested or detained the
    right to retain and instruct counsel
without delay
and to be informed of that right (emphasis added).

[25]

Section
    10(b) obliges the police to advise a detained person of the right to speak with
    counsel without delay and, if the detained person exercises that right, the
    police must immediately provide the detainee with a reasonable opportunity to
    speak to counsel:
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at
    paras. 38, 42;
R. v. Bartle
, [1994] 3 S.C.R. 173, at pp. 191-92.

[26]

The
    s. 10(b) jurisprudence has, however, always recognized that specific
    circumstances may justify some delay in providing a detainee access to counsel.
    Those circumstances often relate to police safety, public safety, or the
    preservation of evidence. For example, in
R. v. Strachan
, [1988] 2
    S.C.R. 980, the court accepted that the police could delay providing access to
    counsel in order to properly gain control of the scene of the arrest and search
    for restricted weapons known to be at the scene. Subsequent cases have accepted
    that specific circumstances relating to the execution of search warrants can also
    justify delaying access to counsel until the warrant is executed: see e.g.
R.
    v. Learning
, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

[27]

These
    cases have, however, emphasized that concerns of a general or non-specific
    nature applicable to virtually any search cannot justify delaying access to
    counsel. The police may delay access only after turning their mind to the
    specifics of the circumstances and concluding, on some reasonable basis, that police
    or public safety, or the need to preserve evidence, justifies some delay in
    granting access to counsel. Even when those circumstances exist, the police
    must also take reasonable steps to minimize the delay in granting access to
    counsel: see e.g.
R. v. Patterson
, 2006 BCCA 24, 206 C.C.C. (3d) 70,
    at para. 41;
R. v. Soto
, 2010 ONSC 1734, at paras. 67-71;
Learning
,
    at para. 75;
R. v. Wu
, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

[28]

Wu
,
    at para. 78, provides a helpful summary of the law. That summary includes the
    following:

The assessment of whether a delay or suspension of the right to
    counsel is justified involves a fact specific contextual determination. The
    case law on this issue reveals some general guiding principles that provide a
    framework for this assessment:

a.       The suspension of the right to counsel is an
    exceptional step that should only be undertaken in cases where urgent and
    dangerous circumstances arise or where there are concerns for officer or public
    safety.



e.       Police officers
    considering whether circumstances justify suspending the right to counsel must
    conduct a case by case assessment aided by their training and experience.
A policy or practice routinely or categorically permitting the
    suspension of the right to counsel in certain types of investigations is
    inappropriate
. [Emphasis added.]

[29]

In the present
    case, the evidence demonstrates that the officers involved in this
    investigation followed a practice that routinely prevented arrested persons
    from accessing counsel if the police intended to obtain a warrant to search a place
    for drugs and believed that the place had a connection to the arrested person.
    The rationale behind this practice appears to be that there is always a
    possibility that allowing an arrested person to speak to their lawyer could put
    the officers executing the warrant at risk or jeopardize the preservation of
    evidence. Under this practice, the appellant, as the occupier of the place to
    be searched, was prevented from contacting his lawyer, as were the two women
    who had been arrested earlier that evening.

[30]

Various
    officers who testified acknowledged the practice. Constable Massey, the officer
    who told the arresting officer to deny the appellant access to counsel,
    testified as follows:

Q.
So, any time  is it  I mean, correct
    me if Im wrong, is it accurate to say then that any time this team is
    contemplating getting a warrant, you dont let an accused speak to a lawyer?

A.
Correct.

Q.
No matter how long it might take?

A.
Correct.

Q.
Okay. And thats part of what you have
    been trained to do?

A.
Correct.


Q. All right. Now, you gave that information to Constable
    Hoover and said, Dont let him speak to a lawyer.?

A. Correct.

Q. And, did you indicate that you would stay in touch with him and
    tell him when he could have him speak to a lawyer?

A. I said when we were finished the entry then he could  I
    would let him know. [Emphasis added.]

[31]

Officer
    Sigmann, another officer involved in the investigation, gave the following
    evidence:

Q. Now, you testified that you had nothing to do with telling anyone to
    prevent those two girls from speaking to counsel.

A. No.

Q. You had no
    knowledge of that?

A. Not that I recall,
    no. Its  its a standard practice that peoples  that rights get withheld
    for certain reasons.

Q. And where do you
    learn that?

A. I learn it from
    members of the drug unit.

Q. Umm, okay.

A. Thats where you
    seek advice from  from the drug unit. I think they discuss it on  when you do
    like, plain clothes course. Its  its kind of a general  a general practice.

Q.
So are you taught that if youre even gonna consider writing a
    warrant nobody gets to speak to a lawyer til thats done, its submitted, its
    signed back as approved and then executed. Is that how it works?

A.
Thats my understanding of how it works. Yes.
[Emphasis added.]

[32]

The police practice described by the officers replaces the
    narrow, case-specific exception to the constitutional right to speak to counsel
    without delay upon arrest with a protocol that routinely delays an arrested
    persons access to counsel for an indeterminate time, usually hours, whenever
    the police, for whatever reason, deem it appropriate to arrest them before
    applying for a search warrant.
There is
    no evidence that any of the officers turned their mind to the specific
    circumstances of this case before deciding that the appellant would be arrested
    and denied access to counsel for several hours while the police sought,
    obtained, and executed a search warrant. On the evidence of the police, there
    was no need to consider the specifics of this case. For them, the decision to arrest
    the appellant before seeking the search warrant dictated that the appellant
    would not be allowed to contact a lawyer until the warrant was executed.

[33]

In my view, to
    fall within the exception to the requirement that an arrested person be allowed
    to speak to counsel without delay, the police must actually turn their mind to
    the specific circumstances of the case, and they must have reasonable grounds
    to justify the delay. The justification may be premised on the risk of the destruction
    of evidence, public safety, police safety, or some other urgent or dangerous
    circumstance. Furthermore, if the police determine that some delay in allowing
    an arrested person to speak to counsel is justified to permit execution of the
    warrant, then they must consider whether it is necessary to arrest the individual
    before they execute the warrant. The police cannot create a justification for delaying
    access to counsel by choosing, for reasons of convenience or efficiency, to
    arrest an individual before seeking, obtaining, and executing a search warrant.
    Police efficiency and convenience cannot justify delaying an arrested persons
    right to speak with counsel for several hours.

[34]

The effective
    implementation of the right to counsel guaranteed by s. 10(b) depends entirely on
    the police. The police must understand that right and be willing to facilitate
    contact with counsel. The practice under which the officers involved in this
    case operated demonstrates a disregard of a fundamental constitutional right.
    The appellants right to speak with counsel was denied at the time of his
    arrest, when the police refused his request to speak with counsel.

(iv)

Should the evidence be excluded?

[35]

While
    there was no causal connection between the discovery of the drugs and the s. 10(b)
    breach, there was a close temporal connection. The parties acknowledge that the
    connection is sufficient to engage s. 24(2): see
R. v. Pino
, 2016 ONCA
    389, 130 O.R. (3d) 561.

[36]

The
    exclusionary rule in s. 24(2) operates on the assumption that the routine
    admission of constitutionally tainted evidence must have a long-term negative
    effect on the repute of the administration of criminal justice. As explained in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 70:

Finally, s. 24(2)s focus is societal. Section 24(2) is not
    aimed at punishing the police or providing compensation to the accused, but
    rather at systemic concerns. The s. 24(2) focus is on the broad impact of
    admission of the evidence on the long-term repute of the justice system.

[37]

The
    rationale for the exclusionary rule identified in
Grant
, as applied in
    these circumstances, requires a consideration of the long-term impact on the reputation
    of the administration of justice caused by the admission of evidence obtained
    in an investigation conducted under a police practice that inevitably and
    routinely denies detained persons their constitutional right to access counsel.
    The systemic nature of the violation plays a central role in assessing its
    long-term impact on the proper administration of justice.

[38]

The
    three-pronged line of inquiry under s. 24(2) established in
Grant
is
    well-known. A court looks to the seriousness of the
Charter
-infringing
    state conduct, the impact of that conduct on the
Charter
-protected
    interests of the accused, and societys interest in an adjudication on the
    merits:
Grant
, at paras. 72-86. The first two factors, taken in
    combination, represent the case for exclusion. The third provides the
    counterbalance favouring admission of the evidence.

(a) The seriousness of the state misconduct

[39]

The
    trial judge described the state misconduct as serious and reflective of the
    police disinterest in the appellants rights. Those observations are fully
    justified. Apart entirely from never turning their mind to the actual need to
    delay the appellants access to counsel, the officers showed no interest in
    mitigating the delay. For example
, there
    is no evidence that the police considered obtaining a search warrant before arresting
    the appellant. I see nothing in the circumstances that would have prevented the
    police from obtaining the warrant first. This would have avoided, or at least
    substantially minimized, any delay in affording the appellant his
    constitutional right to speak with counsel. Even if the police wanted the
    appellant out of the residence before executing the warrant, they could have
    obtained the warrant, watched the residence, arrested the appellant when he
    left, and proceeded to execute the warrant. Had the police followed that
    procedure, they could have allowed the appellant immediate access to counsel.
    Instead, by arresting the appellant before obtaining the warrant, the police
    ensured that he would be held without access to his lawyer for hours.

[40]

Although
    the trial judge recognized that the police misconduct was serious, he
    understated its seriousness by failing to connect it to a police practice that
    routinely denied detainees access to counsel in situations in which the police
    were intending to apply for search warrants. Constitutional breaches that are
    the direct result of systemic or institutional police practices must render the
    police conduct more serious for the purposes of the s. 24(2) analysis. A police
    practice that is inconsistent with the demands of the
Charter
produces
    repeated and ongoing constitutional violations that must, in the long run, negatively
    impact the due administration of justice. This is so even if many of the
    breaches are never exposed in a criminal court. As noted in
Grant
, at
    para. 75:

It should also be kept in mind that for every
Charter
breach that comes before the courts, many others may go unidentified and
    unredressed because they did not turn up relevant evidence leading to a
    criminal charge. In recognition of the need for courts to distance themselves
    from this behaviour, therefore, evidence that the
Charter
-infringing
    conduct was part of a pattern of abuse tends to support exclusion.

[41]

The
    same sentiment appears in
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R.
    494, at para. 25, released concurrently with
Grant
, and in subsequent
    appellate decisions: see e.g.
R. v. Jones
, 2013 BCCA 345, 298 C.C.C.
    (3d) 343, at para. 46;
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d)
    643, at para. 67.

[42]

The
Charter
-infringing state conduct in this case must be viewed as very
    serious. A police practice that routinely holds detained individuals
incommunicado
while the police go about obtaining and executing a search warrant must, over
    time, bring the administration of justice into disrepute.

(b) The impact
    on the appellants
Charter
-protected interests

[43]

The
    trial judge described the negative impact of the breach on the appellants right
    to access counsel as moderate. That description was based largely on his
    finding that the delay of about 1 hour and 20 minutes in allowing the appellant
    to access counsel had no causal connection to the obtaining of the evidence
    discovered in the search of the appellants residence, and that the police had
    refrained from questioning the appellant during that time. The trial judge was
    correct in considering the absence of any causal connection between the s.
    10(b) breach and the obtaining of the evidence as a factor mitigating the
    impact of the breach on the appellants
Charter
-protected interests:
Grant
,
    at para. 122.

[44]

For the reasons
    set out above, I calculate the unconstitutional delay in allowing the appellant
    to speak to his lawyer at almost six hours (10:41 p.m. to 4:20 a.m.). A delay
    of that length, even when the police do not attempt to question the arrested
    person, has a significant impact on the arrested persons rights.

[45]

The right to
    counsel is a lifeline for detained persons. Through that lifeline, detained
    persons obtain, not only legal advice and guidance about the procedures to
    which they will be subjected, but also the sense that they are not entirely at
    the mercy of the police while detained. The psychological value of access to
    counsel without delay should not be underestimated.

[46]

In this case,
    instead of providing the appellant with the lifeline to counsel when he requested
    it, the police put him in the cells. The appellant was
held for
    several hours
without any explanation
    for the police refusal of access to counsel, and without any indication of when
    he might be allowed to speak to someone. His right to security of the person
    was clearly compromised. The significant psychological pressure brought to bear
    on the appellant by holding him without explanation and access to counsel for
    hours must be considered in evaluating the harm done to his
Charter
-protected interests.

[47]

Having
    regard to the security of the person interest protected by s. 10(b), and the
    risk posed by the police practice to the maintaining of the appellants right
    against self-incrimination, I would hold that the s. 10(b) breach had a
    significant negative impact on the appellants
Charter
-protected
    rights. While that impact was certainly not as serious as it would have been
    had there been a causal connection between the breach and the obtaining of the evidence,
    it was nonetheless significant.

[48]

The
    final consideration identified in
Grant
, the impact of excluding the
    evidence on societys interest in a trial on the merits, clearly favours
    admitting this evidence. The evidence of the seized drugs is reliable and
    crucial to the prosecution of serious crimes. To exclude the evidence is to
    allow a guilty person to go free.

[49]

In
    my view, however, this is one of those cases in which the long-term repute of
    the administration of justice requires the sacrifice of the short-term benefit
    of an adjudication on the merits of this case. The seriousness of the police
    misconduct points very strongly toward exclusion. The negative impact of the
    breach on the appellants constitutionally-protected rights also points,
    although less strongly, to exclusion. The two together make a strong case for exclusion.
    Societys interests in an adjudication on the merits does not tip the balance
    in favour of admissibility:
McGuffie
, at paras. 61-64. I would exclude
    the evidence.


IV



conclusion

[50]

I
    would allow the appeal, quash the convictions and enter acquittals.

Released: DD  SEP 12 2018

Doherty J.A.

I agree. S.E. Pepall
    J.A.

I agree. I.V.B.
    Nordheimer J.A.





[1]

As I am satisfied there were reasonable and probable grounds
    to arrest the occupants of the vehicle, I need not consider whether the
    appellant, in challenging the validity of a warrant, is entitled to seek the
    excision of material from the affidavit relied on to obtain the warrant on the
    basis that the information was obtained in violation of the constitutional
    rights of third parties: see
R. v. Vickerson
,
    2018 BCCA 39, 358 C.C.C. (3d) 441.


