



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Perkins,









2021 BCCA 9




Date: 20210112

Docket: CA45393

Between:

Regina

Respondent

And

Corey Jim Perkins

Appellant




Before:



The Honourable Madam Justice Fenlon

The Honourable Madam Justice Griffin

The Honourable Mr. Justice Voith




On appeal from: An
order of the Supreme Court of British Columbia, dated March

12, 2018 (
R. v. Perkins
,
2018 BCSC 823, Chilliwack Docket 65705‑3).




Counsel for the Appellant (via videoconference):



D. Markovitz





Counsel for the Respondent (via videoconference):



C.W. Greenwood





Place and Date of Hearing:



Vancouver, British
  Columbia

December 18, 2020





Place and Date of Judgment:



Vancouver, British Columbia

January 12, 2021









Written Reasons by:





The Honourable Madam Justice Griffin





Concurred in by:





The Honourable Madam Justice Fenlon

The Honourable Mr. Justice Voith








Summary:

Appeal from conviction on
two counts of possession of cocaine, six counts of illegal possession of
firearms, and two counts of possession of prohibited devices. The charges arose
from the seizure of drugs, firearms, and firearm accessories upon the execution
of various warrants. At trial, the appellant challenged the facial validity of
the warrants. The judge initially held that the warrants were invalid, based on
the informations to obtain (ITOs) that were redacted for informant
protection. After the Crown provided the judge with partially unredacted ITOs,
the judge found the warrants were valid. The appellant appeals on the grounds
that the unredacted information was insignificant, the new information revealed
had been virtually conceded, and the judge treated informant evidence
inconsistently. Held: Appeal dismissed. The trial judge did not err in finding
the unredacted information was significant or in his weighing of that evidence.
If the appellant did concede the inference available from the unredacted ITO, the
judge did not accept it. There was no inconsistency in the way the judge
treated informant evidence.

Reasons for Judgment of the
Honourable Madam Justice Griffin:

Introduction

[1]

The appellant, Corey Perkins, appeals his convictions on March 12, 2018,
of two counts of possession of cocaine and fentanyl for the purpose of
trafficking; six counts of illegal possession of various firearms (including
restricted semi‑automatic rifles, a prohibited sawed‑off shogun, and
restricted or prohibited handguns); and two counts of possession of prohibited
devices, namely detachable cartridges and silencers.

[2]

The firearms were discovered after the execution of search warrants on a
storage locker, the keys to which were in the appellants blue Mercedes car,
which had been the subject of a tracking warrant and was also the subject of a
search warrant. The keys found in the Mercedes also opened a safe inside the
storage locker, which contained cocaine, and a safe located in a barn on Taylor
Road. The police searched the barn and found an additional firearm, as well as
drugs in the safe. The appellants fingerprints were inside the safe. An
additional firearm was discovered on execution of a search warrant on the
appellants residence. Cocaine and fentanyl were also found in an envelope
delivered by the appellant to a Canada Post outlet. Similar packaging was found
in the barn. Surveillance of the appellant showed him attending the storage
locker and the Taylor Road barn and moving containers around these places as
well as to the Canada Post outlet. The surveillance of the appellants Mercedes
revealed short meetings in parking lots, consistent with drug transactions,
based on police experience.

[3]

This appeal focuses on a number of
voir dire
rulings at trial
concerning evidence obtained by way of a production order served on the owner
of the storage facility, a general warrant for the storage locker, and search warrants
covering the storage locker, the barn, and the appellants home and vehicle. The
rulings addressed applications by the appellant for declarations that his right
to be secure against unreasonable search and seizure, guaranteed by s. 8
of the
Charter
, was violated by the searches, and for an order pursuant
to s. 24(2) of the
Charter
excluding all evidence obtained.

[4]

The judge initially held that the information to obtain (ITO) was
insufficient to justify the production order and the general warrant, in that
the information did not provide reason to believe that the appellant was
someone who had committed a drug offence. This was in part because the judge
was unable to give weight to information provided by a confidential informant
known as Source E. That information was initially redacted from the
evidence presented to the judge in order to protect the identity of the
informant.

[5]

After the judge found the ITO to be incapable of supporting the warrants,
the Crown supplemented the evidence placed before the judge. This supplemental evidence
revealed to the judge that Source E identified the appellant by sight,
used a single consistent name for him, and had picked up cocaine [redacted]
from him. The judge approved a judicial summary of the evidence to this effect,
which was provided to the appellant. This was all done pursuant to step six of
the procedure laid out in
R. v. Garofoli
, [1990] 2 S.C.R. 1421 at
p. 1461.

[6]

Based on the supplemented ITO, the judge upheld the production order,
general warrant and other search warrants as valid. The evidence obtained by
use of these warrants was then admitted against Mr. Perkins.

[7]

The sole issue on appeal is whether the judge erred in law in finding
that the additional, unredacted information in the ITOs, together with the pre‑existing
information, was sufficient to support the production order and warrants. The
appellant submits that there was no material change in the information from
what the judge had earlier determined to be insufficient. The appellant characterizes
the judges decision as reversing his earlier rulings.

[8]

It is important to note that the appellant takes no issue with the
judges adoption of step six of the procedure in
Garofoli
. The appellant
also does not take issue with the judicial summary. He accepts that the
judicial summary provided a sufficient basis for the appellant to appreciate
the nature of the unredacted evidence shown to the judge.

[9]

Rather, the appellant simply says the unredacted information provided to
the judge, and summarized for the appellant, was too insubstantial to have
tipped the balance and to have caused the judge to change his conclusion that
the ITO was insufficient to support the production order and warrants.

[10]

For the reasons that follow, I am not persuaded that the judge erred.
The judge did not reverse his earlier rulings. He followed the correct
procedure in considering the unredacted information, applied the correct legal test,
and properly appreciated all of the evidence in upholding the production order
and warrants as valid.

Standard of Review

[11]

Before I delve into a review of the background and various rulings by
the trial judge concerning the warrants, it is important to remind ourselves of
the standard by which the appeal court may review the decision of a trial judge
who is tasked with the review of a judicial officers order authorizing a
search or seizure.

Court of Appeal Standard of Review

[12]

This Courts role in reviewing the trial judges findings in respect of
a warrant review is deferential. The Court should decline to interfere with the
trial judges decision absent an error of law, a misapprehension of evidence,
or a failure to consider relevant evidence:
R. v. Slemko
,
2020 BCCA 207 at para. 53;
R. v. Reid
, 2017 ONCA 430 at para. 8;
R. v. Grant
(1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at para. 18,
leave to appeal refd [1999] S.C.C.A. No. 168;
R. v. Ebanks
, 2009
ONCA 851, leave to appeal refd [2010] S.C.C.A. No. 84.

Reviewing Judges Standard of Review

[13]

The trial judges role is to determine whether the order
could
have been granted based on the record that was before the authorizing justice,
as amplified on review, not whether, in the view of the trial judge, the order
should
have been granted:
R. v. Whitaker
, 2008 BCCA 174 at para. 43; leave
to appeal refd [2008] S.C.C.A. No. 296;
R. v. Araujo
, 2000
SCC 65 at para. 51;
R. v. Al‑Maliki,
2005 BCCA 157.

[14]

The production order and warrants at issue on this appeal all required
the justice to first conclude that the evidence in support of the warrant
provided reasonable grounds to believe that the offence described in the
warrant had been committed. The offences alleged in this case were possession
of drugs for the purpose of trafficking and trafficking in drugs contrary to
ss. 5(1) and (2) of the
Controlled Drugs and Substances Act
, S.C.
1996, c. 19 (
CDSA
). It was the determination of reasonable
grounds to believe these offences had been committed that is at issue on this
appeal.

[15]

The justice considering the applications for the production order and warrants
at issue had to also determine that there were reasonable grounds to believe
that execution of the order and warrants would afford evidence of these
offences. The reviewing judges determination that this aspect of the test was
met is not at issue on this appeal.

[16]

The reasonable grounds to believe standard is applied in several
different contexts. It was explained in
Whitaker
:

[39]      The reasonable grounds standard is well‑known.
The Supreme Court of Canada said this about it in
Mugesera v. Canada
(Minister of Citizenship & Immigration)
, [2005] 2 S.C.R. 100, 2005 SCC
40:

114      The first issue raised by s. 19(1)(j) of the
Immigration
Act
is the meaning of the evidentiary standard that there be reasonable
grounds to believe that a person has committed a crime against humanity. The
FCA has found, and we agree, that the reasonable grounds to believe standard
requires something more than mere suspicion, but less than the standard
applicable in civil matters of proof on the balance of probabilities:
Sivakumar
v. Canada (Minister of Employment and Immigration)
, [1994] 1 F.C. 433
(C.A.), at p. 445;
Chiau v. Canada (Minister of Citizenship and
Immigration
), [2001] 2 F.C. 297 (C.A.), at para. 60. In essence,
reasonable grounds will exist where there is an objective basis for the belief
which is based on compelling and credible information:
Sabour v. Canada
(Minister of Citizenship & Immigration)
(2000), 9 Imm.L.R. (3d) 61
(F.C.T.D.)

[40]      The judgment of Madam Justice Wilson in
R. v.
Debot
, [1989] 2 S.C.R. 1140 (at 1166), is also apt:

The question as to what standard of proof must be met in
order to establish reasonable grounds for a search may be disposed of quickly.
I agree with Martin J.A. that the appropriate standard is one of reasonable
probability rather than proof beyond a reasonable doubt or 
prima facie
case. The phrase reasonable belief also approximates the requisite standard.

[41]      A determination with respect to whether reasonable
grounds exist requires a consideration of the totality of the circumstances:
R.
v. Bracchi
, 2005 BCCA 461, 201 C.C.C. (3d) 35 at para. 20;
Re
Church of Scientology & The Queen (No. 6)
(1987), 31 C.C.C. (3d)
449 (Ont. C.A.) at 502. This means that, it is important that the Information
be examined as a whole and not one piece of evidence at a time, because each
piece of evidence colours other pieces of evidence and a fuller picture emerges
by considering all of the evidence together:
R. v. Lam
, 2002 BCCA 99,
172 B.C.A.C. 161 at para. 10.

[42]      Further, the assessment of the facts relied upon to
establish reasonable grounds is made on a practical, non‑technical, and
common sense basis:
R. v. Sanchez
(1994), 93 C.C.C. (3d) 357
(Ont.Ct.)(G.D.)) at 367. As Mr. Justice Cumming observed in
R. v.
Charlton
(1992), 15 B.C.A.C. 272, the person deciding whether the
reasonable grounds standard has been met is entitled to put two and two
together: para. 34.

[Emphasis in original.]

[17]

Warrants are obtained on an
ex parte
basis, frequently relying on
information provided by confidential informants.

[18]

The dilemma when reviewing the basis for a warrant is how to protect
three interests: enforcing the law; informer privilege, which is designed to
protect a confidential informants safety; and an accuseds right to make full
answer and defence:
R. v. Crevier
, 2015 ONCA 619 at para. 1. In
Garofoli
,
the Supreme Court of Canada established a six‑step editing procedure to
address that dilemma.

[19]

The
Garofoli
procedure can be briefly summarized as follows.
Initially, the information produced to the defence and the court on review of
the warrant can be edited to protect the identity of the confidential
informant. If, after redaction of the confidential information, the reviewing
judge considers the remaining information to be insufficient to support the
warrant, the Crown may apply to produce some of the previously redacted
material to the judge. This is step six of the
Garofoli
procedure. The
reviewing judge will only consider the newly unredacted material if satisfied
that a judicial summary of it has been provided to the defence that provides
the defence with enough knowledge to still be able to challenge it. It is this
procedure that was followed here, and the appellant does not suggest it was
done incorrectly.

[20]

When considering whether information provided by a confidential informant,
together with other information, meets the reasonable grounds for belief
standard, the reviewing judge must consider whether the ITO provides sufficient
details to be able to assess the informants reliability. In
R. v. Debot
,
[1989] 2 S.C.R. 1140 at p. 1168, Wilson J. identified three criteria as
the focus of assessing an informants evidence: the information must be compelling;
it must come from a credible source; and it must be corroborated by police
investigation prior to being relied on. The consideration of the informants
credibility can include evidence from the police as to the quality of the
information received in the past from this informant and the motives of the
informant. None of these factors form a separate test, and weaknesses in one
area may be offset by strengths in another, but these factors are part of the
totality of the circumstances that must meet the standard of reasonable grounds
for belief.

[21]

In a challenge to an issued warrant, a distinction is made between
facial defects and subfacial defects, as explained in
Slemko
at para. 2:

A warrant may be quashed when the
Information to Obtain (ITO) the warrant does not set out reasonable and
probable grounds to believe that an offence has been committed and that there
is evidence to be found at the place of the search (a facial defect); or
because the reviewing judge is satisfied the warrant was founded upon false,
inaccurate or misleading evidence (a subfacial defect).

[22]

The present appeal involves a facial challenge to the warrants in
question. There is no allegation that the information provided to obtain the
warrants was in error, and so there was no amplification of the record on
review to correct good faith errors.

[23]

The appellant does not allege that the judge erred in law in respect of
any of the above principles that applied to his task of reviewing the issuance
of the production order and warrants.

[24]

Indeed, it is clear that the judge properly instructed himself on these
principles in his reasons, citing
Whitaker
and
Debot
, among other
authorities.

Background

[25]

The judge was required to make a number of
voir dire
rulings
regarding admissibility of evidence obtained by warrant. Not all of these
rulings are the subject of appeal, but the judges analysis of the evidence set
out in the relevant ITOs was sometimes a necessary stepping‑stone for his
subsequent rulings.

[26]

I will focus only on those rulings relevant to the issue on this appeal.

February 1, 2018 Ruling re Tracking Warrant

[27]

At trial, the appellant challenged the validity of a warrant issued on
November 6, 2014, to track the movements of a certain blue Mercedes automobile
registered in the name of the appellant (the Tracking Warrant). The Tracking
Warrant was issued on the basis of an ITO affirmed by Cst. Davies on
November 6, 2014. The information in this ITO was carried forward into
additional ITOs affirmed by Cst. Davies.

[28]

The appellant sought a declaration that the Tracking Warrant should not
have been granted. The judge dismissed that application on February 1, 2018, in
reasons indexed as 2018 BCSC 232 (Ruling re Tracking Warrant). No issue is
taken with this decision.

[29]

While the Crown did not seek to have evidence obtained by way of the
Tracking Warrant admitted at trial, that evidence was relevant because it was included
in subsequent ITOs to obtain additional warrants, which were being challenged
and are at issue on appeal.

[30]

In the judges Ruling re Tracking Warrant, he noted that the standard
for issuing such an order is reasonable grounds to suspect that an offence
has or will be committed and that information relevant to the commission of the
offence can be obtained through use of a tracking device: s. 492.1(1)
Criminal
Code
;
R. v. Chehil
, 2013 SCC 49. This standard is lower than the
reasonable grounds to believe standard that applies to other warrants at
issue.

[31]

The judge noted that the ITO made five assertions in support of a
reasonable suspicion that a tracking device on the Mercedes would assist in
obtaining information relevant to the offence of drug trafficking and possession
for the purpose of trafficking, at para. 17:

(a)

that Mr. Himpfen (Himpfen) and Ms. Losier
(Losier) were drug dealers;

(b)

that Himpfen was observed meeting or
tracked to a meet with the Mercedes;

(c)

that Corey Perkins was the registered
owner of the Mercedes and had been seen driving it;

(d)

that Corey Perkins was reputed to be a
drug dealer; and

(e)

that Himpfen was supplied indirectly by
someone called Corey.

[32]

The ITO set out evidence from four confidential informants, Sources A,
B, C, and D. The ITO set out information relating to their reliability,
including their past history and the extent to which the information they
provided was confirmed by other sources. The information provided by
Source B was redacted. There was also surveillance evidence.

[33]

It is convenient to set out the judges review of the evidence in the
ITO, because, as noted, this evidence was a foundational part of the record and
context for the judges subsequent rulings:

THE ASSERTION THAT HIMPFEN
AND LOSIER WERE DRUG DEALERS

[19]      Paragraphs 22 to 28 of the ITO set out information
obtained from Source A, who had a limited history with the Abbotsford
Police as an informant, but whose information had in the past led to the arrest
of persons with outstanding warrants.

[20]      Source A provided information that Esther
Losier and Jason Himpfen sold cocaine and methamphetamine including out of
Losiers car and out of Himpfens house on Tims Street. Source A provided
specific details that were confirmed by the police including that the two were
seeing each other, that Losier lives on Capilano Place, and that Himpfen hangs
around the tent city near the Salvation Army. The information that people
came to Himpfens house at 2856 Tims Street to buy drugs is consistent with
police observations of multiple people attending that address for short periods
of time.

[21]      Source C provided information on Himpfen and
Losier, some of which confirmed As information; for example, the assertion at
paragraph 30(a) that drugs were being sold out of 2856 Tims Street.
Source C also provided information at paragraph 30(d) about three specific
vehicles that Himpfen and Losier were driving, a Nissan 350Z, a Dodge Magnum,
and a GMC Yukon, which they used to reload their drug dealers. The use of these
three specific vehicles by Himpfen and Losier was confirmed by police
surveillance.

[22]      Like Source A, Source C had a limited
history as an informant, and his credibility might initially be assessed as
low, but the information about the three vehicles was very specific, and it was
confirmed by other evidence.

[23]      I am satisfied that the information provided by
Source A and by Source C should not be entirely discounted, but
rather can be considered along with the other evidence as part of the
constellation of facts relevant to the assessment of the reasonable suspicion
standard.

[24]      In any event, the assertion that Himpfen and Losier
were drug dealers was supplemented by the facts set out in paragraphs 36 to 37,
that Himpfen and Losier were arrested in the Nissan on October 28, 2014 for
possession of controlled substances, at which time Losier had one cell phone in
her boot and another in her bra, and Himpfen had $1,522 in folded bills in his
pants pocket. Losier was searched, and a plastic bag was found in her vagina.
The bag contained a light brown powder and a bag of white crystals, which were
suspected of being heroin and methamphetamine.

THE ASSERTION THAT MR. HIMPFEN MET WITH THE MERCEDES
OWNED BY MR. PERKINS

[25]      Surveillance evidence set out at paragraphs 32 to
33 of the ITO showed that on October 21, 2014, Himpfen and Losier left the Tims
Street house in the Yukon and an hour later parked in the parking lot of the
Twister Gym beside a blue Mercedes. Himpfen got out of the Yukon and into the
front passenger seat of the Mercedes. About 30 seconds later, he got out of the
Mercedes and back into the Yukon. Both vehicles then left the area. Cst. Davies
affirmed that in his experience, these actions were consistent with a drug
transaction.

[26]      The Yukon went directly to 32847 Capilano Place for
two minutes and then returned to the Tims Street house.

[27]      During the surveillance, Cst. Nugent observed
that the licence plate of the blue Mercedes contained the characters, AD8. A
subsequent check with ICBC showed a possible match for a blue Mercedes in
Abbotsford with the licence, AD8 81N. A CPIC check showed the registered
owner of that vehicle to be Corey Jim Perkins of 34239 Green Avenue,
Abbotsford, British Columbia. A query of the Abbotsford Police Department
booking system produced a booking photo for the name Perkins at the Green
Avenue address, and that photograph was circulated to other police members.
Surveillance on October 27, 2014, showed Mr. Perkins exiting the residence
at 34239 Green Avenue and driving away in the Mercedes. He drove to a farm
property at 29939 Taylor Road. At paragraph 34(d) of the ITO, it states, Perkins
appeared to be working in a greenhouse.

[28]      On November 3, 2014, Himpfen was observed exiting
the Tims Street house and driving away in the Nissan. A tracking device on the
Nissan showed that it stopped on Satchell Street just west of Ross Road. At the
same time, the Mercedes was seen leaving eastbound from the same area. Satchell
Street is a rural farm road, and no other vehicles were observed in the area at
the time. The Mercedes parked at 29939 Taylor Road, and Corey Perkins was
confirmed as the driver. The Nissan did not stop until it entered the driveway
of the Tims Street house, where Himpfen was seen exiting the Nissan carrying a
small white grocery bag.

THE ASSERTION THAT MR. PERKINS WAS REPUTED TO BE A
DRUG DEALER

[29]      Paragraph 42 of the ITO shows that Cst. Davies
performed a CPIC and PRIME search on November 4, 2014, and found that Corey Jim
Perkins has convictions for trafficking in a Schedule I substance in 2009,
a conviction for production of a Schedule I substance in 2009, and a
conviction for possession of a Schedule I substance for the purpose of
trafficking in 2009.

THE ASSERTION THAT HIMPFEN WAS SUPPLIED INDIRECTLY BY
SOMEONE CALLED COREY

[30]      Source D provided information that Phil Aslin
works for someone named Corey and that Phil Aslin supplies Himpfen with
drugs. This information lacks specificity, in that Source D provided no
surname for the person named Corey. As well, Source D had a very limited
history as an informant, and police had never before acted on any information
supplied by him.

[31]      Nevertheless, his information is consistent with a
PRIME report that Phil Aslin was a passenger in a vehicle driven by Corey
Perkins on April 16, 2014.

[32]      While the information
supplied by Source D is entitled to very little weight, it need not be
discounted in its entirety, but rather can properly be considered as one small
and relatively insignificant part of the overall constellation of
circumstances. I say this bearing in mind that the evidence is not to be evaluated
on a piecemeal basis.

[34]

The judge considered the circumstantial evidence and concluded it met
the reasonable suspicion standard (para. 39).

February 7, 2018 1
st
Ruling re Production Order

[35]

Another
voir dire
ruling was made on February 7, 2018, indexed at
2018 BCSC 307 (the 1
st
Ruling re Production Order). This concerned
a production order granted on December 10, 2014, by a justice of the peace (the
Production Order), requiring the production of information by a storage company.
The information sought concerned video, customer information, contracts and
pass codes relating to a specific storage locker.

[36]

The Production Order had been granted on the basis of an ITO provided by
Cst. Davies, dated December 10, 2014. That ITO built on the earlier ITO
provided by Cst. Davies that had been used to support the Tracking Warrant.

[37]

The judge recognized and stated that the task before him was different
than the task of reviewing the Tracking Warrant. Whereas the latter was subject
to the reasonable suspicion standard, the present task was subject to the
reasonable grounds to believe standard:

REASONABLE GROUNDS STANDARD

[12]      Unlike a tracking warrant, where the application
materials must satisfy a reasonable suspicion standard, the legislation in
relation to production orders and general warrants sets the bar higher and
requires that the prerequisites be established on the standard of reasonable
grounds to believe.

[13]      Reasonable grounds are something more than
suspicion, but less than the civil standard of a balance of probabilities, and
less than a
prima facie
case
.
It is a practical, non‑technical,
and common sense standard that requires a consideration of the totality of the
circumstances:
R. v. Debot
(1989), 52 C.C.C. (3d) 193 at p. 213
(S.C.C.);
R. v. Whitaker
, at paras. 39‑42;
R. v. Lam
,
2002 BCCA 99 at paras. 7‑8; and
R. v. Liu
, 2014 BCCA 166 at paras. 33‑39.

[14]      In reviewing the application materials submitted
for a production order or a warrant, the grounds must be assessed from the
standpoint of a reasonable person standing in the shoes of the police officer,
and in this respect the experience of the affiant is relevant:
R. v. Tran
,
2007 BCCA 491 at paras. 12‑13.

[15]      Where the affiant relies on information obtained
from a confidential informer, the court must assess the informers reliability,
including past performance, motive, and whether the information was compelling,
credible, and corroborated, although weakness in one area may be compensated
for by strengths in the others:
R. v. Debot
at p. 215.

[16]      Reasonable grounds can
be based in part on reputation evidence, including the reputation of the
suspect and the reputation of people with whom the suspect associates, although
the weight to be given to such evidence will depend in part on its reliability:
R. v. Debot
at pp. 215‑216.

[38]

After reviewing the law, the judge considered the evidence in the ITO,
as redacted, and whether it provided a basis on which the justice could have
found there were reasonable grounds for Cst. Davies stated belief that
the appellant had committed a drug offence and that production of the data
relating to the storage locker would afford evidence respecting the commission
of that offence.

[39]

The judge noted that in his Ruling re Tracking Warrant he found that the
Tracking Warrant was properly issued, but the standard for a tracking warrant
was only reasonable suspicion, not reasonable belief. In the 1
st
Ruling
re Production Order, the judge noted that the earlier ITO would not have met
the standard of reasonable grounds to believe (para. 26).

[40]

The judge thus moved on to consider whether the additional information
in Cst. Davies December 10, 2014 ITO was sufficient to raise the level of
confidence from that of reasonable suspicion to reasonable grounds to believe
the appellant committed a drug offence.

[41]

The judge found that there were four categories of additional evidence:

1.

Additional evidence that the appellant regularly drove the blue
Mercedes, including on dates in November and December 2014, all of which strengthened
the inference that it was the appellant in the Mercedes when it was seen
meeting in suspicious circumstances with Himpfens Yukon on October 21, 2014 (para. 30);

2.

Information that even after his arrest, Himpfen continued to be involved
with activities consistent with drug activities. That strengthened the
inference that there may have been a drug transaction between Himpfen and the
appellant when Himpfens vehicle and the Mercedes were tracked in close
proximity to each other near a rural farm (para. 31);

3.

Two further occasions when the appellant was the subject of surveillance
and was seen driving his Mercedes to brief meetings with persons in
circumstances consistent with drug activities. In one meeting in a parking lot,
a person entered the Mercedes, left after one minute and drove away. In another
meeting in a different parking lot, the appellants Mercedes was parked
adjacent to a vehicle; the appellant entered the other vehicle, and in under
two minutes left the other vehicle and drove away. The driver of the other
vehicle was someone with a record for possession for the purpose of trafficking;
and

4.

New
evidence from a confidential informant, described as Source E.

[42]

The earlier ITO had not referred to Source E. The new ITO stated
that: Source E had been providing information since 2014; the information
he provided resulted in one tracking warrant and two CBSA search warrants in
which controlled substances were located and seized; Source E was
motivated by money and consideration of current charges and was awaiting
disposition on something; and the information he provided was based on personal
knowledge.

[43]

The judge observed that the paragraph of the ITO setting out the
information provided by Source E was heavily redacted, leaving it
impossible to tell if the information was very significant or
inconsequential. The judge noted:

[37]      On this review, however, almost the entirety of
paragraph 43 has been redacted
.
What is left unredacted is just parts of
clause (f), clause (g), and clause (i)
.
Clause (f)
speaks of Source E identifying a booking photo of Corey Perkins as, and
then there is a redaction
.
Clause (g) says that Source E
described, and then there is a redaction, followed by the words, as white and
skinny with a long skinny face and had a tattoo on the top of his hand, after
which Cst. Davies added the comment that Cst. Toews observed a tattoo
on the top of Perkins hand
.
Clause (i) states that Source E
picked up cocaine, and then there is a redaction, followed by the words directly
from followed by another redaction, and then the comment of Cst. Davies
that Perkins has a criminal record for drug trafficking
.

[38]
Depending on what
is in those portions that have been redacted, this information from
Source E could be very significant or it could be completely
inconsequential
.
In its current redacted form, it is impossible to tell,
and it would be wrong to speculate
.

[Emphasis added.]

[44]

Because of the redactions, the judge concluded that he could not place
any weight on information provided by Source E (para. 39).

[45]

The judge found that the other additional information had provided a
stronger basis for believing that the appellant was involved in a drug offence
than what was provided in the earlier ITO (para. 40). But, while the case
was 
very close to the line
, he concluded that the reasonable grounds
for belief standard has not been met on the basis of the December 10, 2014 ITO
as
currently redacted
 (para. 42; emphasis added). The judge held that
on the basis of the
redacted
ITO, there were not grounds upon which the
justice could have properly issued the production order (para. 43; emphasis
added).

February 8, 2018 2
nd
Ruling re Production Order

[46]

Following the judges 1
st
Ruling re Production Order, the
Crown immediately applied to have the court consider a partially unredacted
version of the ITO. The judge approved a judicial summary of this additional
information, which was provided to the appellant.

[47]

After considering the additional information, the judge issued a second
ruling with respect to the production order on February 8, 2018, indexed at
2018 BCSC 308 (the 2
nd
Ruling re Production Order).

[48]

As explained in the 2
nd
Ruling re Production Order, the judge
was provided with a new page of the ITO, revealing to him some of the
information that was previously redacted (although other redactions remained).
The judge approved a judicial summary of the new material that he was shown,
and that summary was provided to the appellant. The judge explained the nature
of the new information:

[5]        With the new information that was not before me at
the time of my ruling on February 7, 2018, paragraph 43(f), (g) and (i) of the
ITO may now be understood in this way, as explained in the judicial summary:

(f)         Source E
identified a booking photo of Corey Perkins as being [NAME].

(g)        Source E described
[NAME] as white and skinny with a long skinny face and had a tattoo on the top
of his hand [Cst. Toews observed a tattoo on the top of Perkins
hand]. . .

(i)         Source E picked up
cocaine [redacted] directly from [NAME] [Perkins has a criminal record for drug
trafficking].

[6]        In the previously
redacted version of this material, it was not clear whether Source E was
referring to the same individual in clauses (f), (g) and (i). Following
the
Garofoli
Step 6 procedure, it is now clear that he was referring to
the same person in each of those clauses. That is, Source E identified a
booking photo of Corey Perkins as being a person he referred to by a certain
name. He described that person as being white and skinny with a long skinny
face, and had a tattoo on the top of his hand and he picked up cocaine
[redacted] directly from that person.

[49]

The judge noted two arguments advanced by the appellant.

[50]

One argument was that the appellant did not know the specific name that
Source E used, which would help him in knowing whether Source E was
mistaking him for someone else. The Crown position was that revealing the
actual name would compromise informant privilege.

[51]

The second argument advanced by the appellant was that the new
information did not add anything significant to what was known before. In
particular, the appellant noted that the information in (i) above, which states
that Source E picked up cocaine from the appellant, was undated. Since it
was known from information in the earlier ITO that the appellant had a previous
conviction for a drug offence in 2009, it was possible that Source E was
referring to the transaction for which the appellant had previously been
convicted.

[52]

The judge considered these arguments but noted that the issue was not
whether the new information on its own was sufficient, but whether the entire
constellation of information  is sufficient to provide reasonable grounds for
belief (para. 11).

[53]

The judge found that the additional information, along with the earlier
information from the December 12, 2014 ITO, did provide reasonable grounds for
Cst. Davies belief that the appellant was involved in a drug offence (para. 29).

[54]

The judge went on to consider the second requirement for obtaining a
warrant: whether the material provided reasonable grounds to believe that the production
order would afford evidence of the offence. He concluded that it did. The
appellant does not take issue with this aspect of the judges analysis.

February 8, 2018 1
st
Ruling re General Warrant

[55]

The judge next considered an application by the appellant for a
declaration that a general warrant to search the storage locker (the General
Warrant) should not have been granted. This was the same storage locker that
was the subject of the Production Order. The General Warrant allowed access to
the storage locker, as well as examining, photographing and taking samples of
the contents.

[56]

On execution of the General Warrant, numerous firearms were found in the
storage locker, as well as ammunition and relatively small quantities of drugs.

[57]

The judges first ruling on this was on February 8, 2018, in reasons
indexed as 2018 BCSC 309 (1
st
Ruling re General Warrant). The
basis for the General Warrant was an ITO of Cst. Davies affirmed December
12, 2014, the majority of which was identical to the December 10, 2014 ITO for
the Production Order, including the redactions as to the information provided
by Source E.

[58]

The judge concluded, for substantially the same reasons as in the 1
st
Ruling re Production Order, that on the basis of the redacted ITO he could
place no meaningful interpretation of the evidence from Source E. Again,
the judge held that although the case is very close to the line, the standard
had not been met on the issue of whether there were reasonable grounds for
Cst. Davies belief that the appellant had committed a drug offence. As
such, the General Warrant could not be sustained (para. 3).

February 9, 2018 2
nd
Ruling re General Warrant

[59]

The Crown then followed the same procedure as with the Production Order,
as outlined in step six of
Garofoli
. A partially unredacted version of the
ITO was produced to the judge, and a judicial summary of the newly produced
material was provided to the appellant. The judge then made a second ruling
regarding the General Warrant for the storage locker, indexed at 2018 BCSC 310
(2
nd
Ruling re General Warrant).

[60]

The judge considered similar arguments advanced by the defence as had
been advanced in the 2
nd
Ruling re Production Order, to the effect
that: the additional information was insufficient and not material because the
appellant did not know the name used by Source E, hindering his ability to
know whether the source was mistaken; and since the previous information
already disclosed that the appellant had a criminal record from 2009, that conviction
might have been the drug transaction that Source E was referring to.

[61]

Applying similar albeit somewhat expanded reasoning as he had in respect
of the 2
nd
Ruling re Production Order, the judge concluded that the
additional information, together with the other material from the December 12,
2014 ITO, was sufficient to provide reasonable grounds for Cst. Davies
belief that the appellant was involved in a drug offence of trafficking or
possession for the purpose of trafficking (para. 29).

[62]

The judge went on to consider the question of whether there were reasonable
grounds for belief that information concerning the offences would be obtained
by way of the General Warrant. The judge reviewed the surveillance evidence in
more detail, linking the appellants movements to the storage facility and
linking the movements from the storage facility to drug trafficking, and
answered this question in the affirmative, upholding the General Warrant. This
aspect of the judges reasoning is not at issue on appeal.

February 16, 2018 Ruling re
CDSA
Warrants

[63]

The judge was subsequently required to consider the validity of four
search warrants issued pursuant to the
CDSA
(the 
CDSA
Warrants). The judges ruling in this regard was on February 16, 2018, and is
indexed at 2018 BCSC 312 (Ruling re
CDSA
Warrants).

[64]

The warrants were to search, respectively: the storage locker; the
residence of the appellant; the blue Mercedes; and a barn located on Taylor
Road in Abbotsford.

[65]

A single ITO was sworn by Cst. Davies on December 15, 2014 in
respect of the
CDSA
Warrants.

[66]

While the judge expressly adopted his previous rulings, he also
meticulously set out the standard of review applicable to the issuance of the warrants
and the standard required of reasonable grounds to believe. He carefully
reviewed the information in the ITO that pre‑existed the information that
came from Source E. Rather than splitting the matter into two separate
hearings, at this
voir dire
hearing the Crown applied to have the judge
consider a partially unredacted version of Source Es evidence, in
accordance with step 6 of the
Garofoli
procedure.

[67]

The same information was provided to the judge and the same judicial
summary was provided to the appellant of Source Es evidence as was the
case in the 2
nd
Ruling re Production Order and 2
nd
Ruling
re General Warrant.

[68]

Similar arguments were advanced by the defence as to the insignificance
of the evidence from Source E. The judge reached similar conclusions as he
did in the 2
nd
Ruling re Production Order and 2
nd
Ruling
re General Warrant, namely, that the newly redacted information, together with
the entire constellation of evidence from the ITO, was sufficient to
establish reasonable grounds to believe that the appellant was involved in drug
trafficking or possession for the purpose of drug trafficking (para. 54).

[69]

The judge next turned to the question of whether there were reasonable
grounds to believe that any drugs or drug‑related items would be found in
the four places to be searched pursuant to the
CDSA
Warrants. The judge
answered this question in the affirmative with respect to three of four places,
but in the negative with respect to drugs at the private residence. A s. 24(2)
Charter
application then followed with respect to the items found at the
residence, with the judge ruling the evidence admissible: 2018 BCSC 395 at para. 31.
These aspects of the judges analysis are not in issue on appeal.

Trial Judgment

[70]

At trial, the Crown relied on surveillance evidence, evidence obtained
by search warrants, a police interview of the appellant after his arrest, and
admissions. The combined evidence was sufficient to persuade the judge beyond a
reasonable doubt of the appellants guilt.

[71]

The judge imposed a global sentence of eight years and 10 months
imprisonment, after taking into account a credit of 38 months served in pre‑trial
custody.

Appellants Position on Appeal

[72]

The appellant submits that the issue on appeal is very narrow. As he
puts it: was there any material change in the unredacted information from Source E
to justify a reversal of the judges original rulings?

[73]

The appellant argues that the information from Source E that was
unredacted was immaterial and could not have changed what was previously
insufficient evidence to support reasonable grounds to believe the offences had
been committed. I have grouped the appellants arguments about the
insufficiency of the new evidence into the following three points:

1.

Significant parts of Source Es evidence remained redacted and
there were gaps and a lack of detail in Source Es evidence, all of which
affected the reliability and relevance of his evidence;

2.

The defence had made a virtual concession that the person Source E
was referring to by name was the same person seen in the photograph, so nothing
new was established by confirming that by way of the unredacted information;
and

3.

The
judges reasoning after receiving the additional unredacted information from
Source E was inconsistent with how he had previously treated evidence from
other informants.

[74]

The Crown disagrees with each of the three points.

Analysis

[75]

I will address the applicants three challenges to the sufficiency of
Source Es evidence in turn.

Argument that Source Es Evidence Remained Immaterial

[76]

The appellant suggests that Source Es redacted evidence, even
after it was revealed he was referring to the same named person identified as
the appellant, was so undetailed and vague as to not be worthy of any weight.

[77]

The appellant argues that the evidence that Source E picked up
cocaine [redacted] from the person he identified in the booking photo as
[name] is very vague and problematic for several reasons.

[78]

First, the date of this transaction is unknown. Since earlier versions
of the ITO revealed that the appellant had a 2009 drug offence conviction in
Alberta, the information could have been referring to this old transaction. The
appellant submits that lack of any date or even a range of time in proximity to
the offences being investigated is highly problematic.

[79]

Second, the police showed Source E a booking photo. The appellant
says that showing the booking photo could have been prejudicial and influenced
the identification of the appellant. The appellant suggests the police should
have used a more recent surveillance photo. Further, by not revealing the
actual name used by Source E to describe the appellant, it was difficult
for the appellant to challenge whether Source E was referring to the 2009
offence.

[80]

Third, the appellant questions the meaning of the redaction after the
word cocaine. The appellant suggests it opens the possibility that it was not
cocaine at all that was involved in the transaction between Source E and
the person identified as the appellant, but something else, such as scale, or
buffer, or pipes.

[81]

I accept that the judge could have found these issues to be problematic
if Source Es evidence was the only evidence being relied upon by the
police investigator in obtaining the warrant. However, it was not the only
evidence. There was an abundance of surveillance evidence observing the
appellant, and someone in his blue Mercedes, engaging in activity that created
a high level of suspicion it was drug trafficking. There was other informant
evidence suggesting someone named Corey (the appellants first name) was
supplying drugs, but that informant evidence did not visually identify the
appellant.

[82]

Source Es evidence was reliable because it was consistent with the
pre‑existing large body of circumstantial evidence suggesting that the
appellant was involved in drug trafficking. The fact that Source E could
visually identify the appellant was credible. This visual identification was not
just from a booking photo, but by way of physical description which included a
tattoo on the top of the appellants hand. The hand tattoo was corroborated by
a police officers evidence. Source Es evidence that he picked up
cocaine [redacted] directly from the person identified as the appellant was
highly significant. I accept that the missing redacted word is curious, but I
do not find that it sufficiently diminishes the inference that Source E
purchased cocaine or something related to the cocaine trade from the appellant.

[83]

The judge acknowledged the argument that the cocaine transaction could
have been connected to the 2009 drug offence, but he was not persuaded that was
a reasonable inference.

[84]

The appellant raises an issue with the fact that in his later sets of
reasons, the judge added the explanation that there was no evidence that the
2009 offence had to do with the appellant trafficking in cocaine (see for
example para. 23 of 2
nd
Ruling re General Warrant and para. 51
of the Ruling re
CDSA
Warrants). The judge did not mention this
rationale in his 2
nd
Ruling re the Production Order. I do not see
anything significant in this amplification of the judges reasons. The judge
considered the appellants argument regarding the date of the cocaine transaction
in all of his rulings after production of Source Es partially unredacted
information and did not find it persuasive. The appellant raised this argument
on each occasion (as he was entitled to do, of course), and so the judge dealt
with it again as well.

[85]

Further, the appellants criticism seems to imply that the judge ought
to have ordered further disclosure of Source Es evidence. However, as the
Crown points out, that criticism is fully answered by the fact that the defence
never brought an application for further disclosure.

[86]

It is clear that the appellants criticisms of the judges treatment of
missing details in Source Es evidence does not raise an error of law,
misapprehension of evidence, or a failure to consider relevant evidence.
Rather, the appellants real criticism is with the weight the judge gave to
evidence of the confidential informant Source E. I see the judges
weighing of the evidence as entirely reasonable, and it does not provide any basis
for appellate interference.

Argument that There Had Been a Prior Concession

[87]

The appellant argues that the judges treatment of Source Es
partially unredacted evidence as significant made no sense because the
significant point had virtually been conceded even before the new disclosure. Specifically,
the appellant argues the defence had virtually conceded that the person
identified by Source E as the appellant was the same person referred to
elsewhere in Source Es evidence, including as the person involved in the
cocaine [redacted] transaction.

[88]

There are two problems with this position. First, the record is far from
clear that this was virtually conceded. In support of the proposition that
defence counsel virtually conceded this point, the appellant points to a single
extract from the transcript of the hearing:

 you have E saying, the skinny
guy, long face, tattoos on hand. Yeah thats the guy you showed me in the
booking photo. I picked up cocaine,  and Im adding to that because we more
or less have inferred that thats what is meant.

[89]

With respect, I do not think counsel stating that he has more or less
inferred what is the content of a redaction can clearly be seen as a
concession.

[90]

Second, it was the judge who had to be satisfied that this was the
substance of Source Es evidence. The redactions created the possible
inference that Source E could have been referring to different people and
not only to the appellant. The judge explicitly refused to speculate about the
content of the redactions in his 1
st
Ruling re Production Order
and 1
st
Ruling re General Warrant. Clearly, that was the proper
approach.

[91]

This means there was nothing inconsistent about the judge then finding
the partially unredacted evidence significant when it confirmed that
Source E was referring to the appellant throughout. In fact, the judge in
his early ruling alluded to the possibility that this information could be
very significant.

[92]

I therefore see no merit to the appellants suggestion that this point
had been virtually conceded.

Argument that There Was an Inconsistency in the Treatment of Informant
Evidence

[93]

As was set out in the overview of the standard of review above,
Debot
establishes that when considering an informants evidence as support for a
warrant, some consideration should be given to the question of whether there is
any corroboration for it.

[94]

The appellant suggests that the judge treated the informant evidence
inconsistently as between the earlier reasons, where he found the warrant
invalid, and his subsequent reasons, where he found the warrants to be valid.

[95]

In my view, there was also nothing inconsistent about the judges
treatment of the information provided by the confidential informants as between
the judges sets of reasons. For example, in his Ruling re Tracking Warrant,
the judge noted that Source Ds evidence was entitled to very little
weight but need not be discounted in its entirety. In his 2
nd
Ruling re Production Order, the judge described Source Ds information as
weaker than Source Es information because it left the key connectionthe
fact that the Corey Source D referred to was in fact the appellantas a
matter of inference. The judge consistently found that Source Ds
information was weak, but worthy of some consideration.

[96]

The judge instructed himself on the principles from
Debot
. It is
clear that in considering the totality of the evidence, he considered the
criteria of how compelling Source Es evidence was, whether it was
credible, and whether it was corroborated. The judge explicitly noted the
weaknesses in Source Es credibility, namely his short time as an
informant and the fact that his motivation for informing was financial and
consideration of charges he currently faced, before ultimately concluding that
some weight could be put on his information.

[97]

Of course it is the very nature of circumstantial evidence that piece‑by‑piece
it can accumulate to meet the necessary standard of proof, which here was the
standard of reasonable grounds to believe that the offences had been
committed. There was a substantial amount of circumstantial evidence set out in
the ITOs, some from informants and some from surveillance. Source Es
evidence was capable of strengthening, or as the judge described it,
tightening, the inferences of criminal activity that were available from the entire
constellation of the evidence.

[98]

The judges approach was consistent with the authorities, as summarized
in
Whitaker
:

[41]      A determination with respect to whether reasonable
grounds exist requires a consideration of the totality of the circumstances:
R.
v. Bracchi
, 2005 BCCA 461, 201 C.C.C. (3d) 35 at para. 20;
Re
Church of Scientology & The Queen (No. 6)
, (1987), 31 C.C.C. (3d)
449 (Ont. C.A.) at 502. This means that, it is important that the Information
be examined as a whole and not one piece of evidence at a time, because each
piece of evidence colours other pieces of evidence and a fuller picture emerges
by considering all of the evidence together:
R. v. Lam
, 2002 BCCA 99,
172 B.C.A.C. 161 at para. 10.

[42]      Further, the assessment
of the facts relied upon to establish reasonable grounds is made on a
practical, non‑technical, and common sense basis:
R. v. Sanchez
, (1994),
93 C.C.C. (3d) 357 (Ont.Ct.)(G.D.)) at 367. As Mr. Justice Cumming
observed in
R. v. Charlton
, (1992), 15 B.C.A.C. 272, the person
deciding whether the reasonable grounds standard has been met is entitled to put
two and two together: para. 34.

[99]

I do not find anything inconsistent in the judges approach to informant
evidence. It was within the reviewing judges purview to give weight to Source Es
newly unredacted evidence and to conclude that it, together with the whole of
the evidence set out in the relevant ITOs, was sufficient to support the
conclusion that there were reasonable grounds to believe that the appellant had
committed the offences of drug trafficking or possession of drugs for the
purpose of trafficking.

Conclusion

[100]

For the reasons given, I would dismiss the appeal from conviction.

The
Honourable Madam Justice Griffin

I AGREE:

The Honourable Madam Justice
Fenlon

I AGREE:

The Honourable Mr. Justice
Voith


