



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Vickerson,









2018 BCCA 39




Date: 20180130

Docket: CA43736

Between:

Regina

Respondent

And

Conrad Vickerson

Appellant




Before:



The Honourable Mr. Justice Groberman

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Hunter




On appeal from:  An
order of the Provincial Court of British Columbia, dated May 30, 2016 (
R. v.
Vickerson
,
2016 BCPC 204
, North
Vancouver Docket
59932-2-C
).




Counsel for the Appellant:



D.N. Fai





Counsel for the Respondent:



C. Greenwood





Place and Date of Hearing:



Vancouver, British
  Columbia

June 13, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 30, 2018









Written Reasons by:





The Honourable Madam Justice Bennett





Concurred in by:





The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Hunter








Summary:

The appellant seeks to
overturn four convictions of possession for the purpose of trafficking a
variety of illicit drugs. He says the trial judge erred by (1) concluding that
there was evidence that could support the issuance of a search warrant after
infirm evidence was expunged from the supporting affidavit; and (2) determining
that the appellant did not have standing to challenge the grounds of arrest and
search of a third party. Held: Appeal dismissed. (1) The trial judge declined
to hold a voir dire into the merits of an issue the appellant now seeks to
raise on appeal. Without a determination that the trial judge did not exercise
his discretion judicially in declining to hold the voir dire, this Court cannot
and should not disturb such rulings. In any event, there was overwhelming
evidence to support the issuance of the warrant. (2)The appellant had standing
to challenge the search of the seized third partys mobile phone as he had a
reasonable expectation of privacy in the texts and call logs he had sent, but
he did not have standing to challenge the search of the third party or the
vehicle.

Reasons for Judgment of the Honourable
Madam Justice Bennett:

[1]

Conrad Vickerson was convicted on December 4, 2015 of four counts of
possession for the purpose of trafficking a variety of illicit drugs. He
appeals these convictions, arguing that the search warrant obtained to search
his residence was invalid; that he had standing to challenge the grounds of arrest
and search of a third party; and finally, any evidence obtained as a result of
the unlawful search should be excluded under s. 24(2) of the
Charter
.

[2]

The focus of the appeal is the validity of the warrant to search Mr. Vickersons
residence in Whistler.

[3]

The decisions in
R. v. Marakah
, 2017 SCC 59 and
R. v. Jones
,
2017 SCC 60 were released after the appeal hearing. Counsel filed further
submissions in relation to those decisions.

[4]

For the reasons that follow, I would dismiss the appeal.

Background

[5]

The police began investigating Mr. Vickerson for drug trafficking
in October 2013. The police had information from two confidential informants, who
told them that Conrad or JT (a known nickname of Mr. Vickerson) was
selling drugs from his house. One of the informants had purchased drugs from
him, and had seen drugs inside the house. Constable Wirth was the investigating
officer and the affiant on the information to obtain a search warrant (ITO).

[6]

Confidential Informant A advised the police on October 11, 2013, that Conrad
sells drugs, including cocaine and marihuana, from his residence in Nordic
Estates, and that he kept drugs in his home.

Informant A had seen packaging materials inside
Conrads residence.


[7]

Informant A identified Mr. Vickersons residence by pointing it out
to the police.

He also
stated that Conrad drove a beat-up looking tan or gold coloured Nissan
Pathfinder and provided the licence plate number. The police verified that Mr. Vickerson
was the registered owner of a gold coloured Nissan Pathfinder with the same
licence plate number provided by Informant A, and they had seen the vehicle
parked outside Mr. Vickersons residence while doing surveillance.
Constable Wirth conducted police checks on Mr. Vickersons drivers licence
and noted that his first name was Conrad.

[8]

Constable Wirth set out the reliability of Informant A in the ITO.
Informant A had provided the information voluntarily without expectation of
personal gain or reward. Informant A had provided approximately 60 pieces of
information to the police and the majority of them had been confirmed by police
observations.

Informant A
had also provided information in an unrelated investigation that led to an
arrest and seizure of drugs, and his police handler had not encountered any
information provided by informant A that was misleading or false.

Informant A had purchased
drugs from the Appellant.

Informant
A advised the police that Conrads nickname was JT.

[9]

Informant B had provided information to the police in September of 2012.

Informant B stated that JT,
who lives in Nordic Estates, sells cocaine, marihuana and MDMA.

Informant B advised that JT
sold at the gram to ounce level, kept drugs in his residence and kept a certain
amount of drugs on hand.

[10]

The police accessed Mr. Vickersons public Facebook profile and
observed a photograph of Mr. Vickerson that had been posted by a friend on
Mr. Vickersons birthday with a caption reading baked JT a cake. Constable
Wirth identified Mr. Vickerson in the photograph and swore to her belief
that his nickname was JT.

[11]

Constable Wirth set out facts that were relevant to the reliability of
Informant B in the ITO, including that the information was provided for the
prospect of financial
gain. Informant
B had provided over 20 pieces of information to the police and much of it was
consistent with other police files and information from other informants.

Informant B had provided information to
the police in the past that had resulted in the seizure of illegal items, an
investigation resulting in an arrest, and the seizure of drugs and trafficking paraphernalia
.

[12]

The affiant noted that both Informant A and Informant B said that Mr. Vickerson
kept
drugs in his residence
.

[13]

The police conducted surveillance on Mr. Vickersons home over a
two-month period, and observed a number of people arriving, staying for a few
minutes and then leaving.

[14]

The ITO described a number of surveillance observations including the
following:

(a)      On October 17, 2013 an individual arrived in a white
Chevy Impala and was observed entering Mr. Vickersons residence. The
police could not determine the gender of the individual. Three minutes later a
female left the residence and drove away in the white Chevy Impala;

(b)      Approximately an hour and a half later, Mr. Vickerson
attended a residence in the Whistler Cay Heights subdivision. He was observed
coming out of the residence and meeting with the driver of a vehicle for less
than a minute;

(c)      On November 5, 2013, a male and a female were
observed leaving a neighbouring suite. The female then attended Mr. Vickersons
residence for approximately two minutes and returned to the neighbouring suite
while the male returned to his truck;

(d)      On November 6, 2013, a male arrived in a Nissan
Pathfinder carrying a white plastic grocery bag and entered Mr. Vickersons
residence for approximately 4 minutes and then left; and

(e)      On December 18, 2013 an
unknown female attended Mr. Vickersons residence for approximately eight
minutes and was heard saying thank you when she left the residence. She was
driving the same white Chevy Impala as the female who was observed leaving the
residence on October 17, 2013.

[15]

On December 20, 2013, the police observed a truck arrive at Mr. Vickersons
residence and stop outside. A male, later identified as Mr. Schnarr,
entered Mr. Vickersons residence, stayed for six minutes, re-entered the
truck, and drove away. The police stopped the truck at 6:45 p.m., and arrested
the driver and passenger on the belief that the passenger, Mr. Schnarr, had
purchased cocaine from Mr. Vickerson.

[16]

The arresting officer, Constable Wirth, asked Mr. Schnarr if he had
any weapons or drugs on him, and he told her he had drugs hidden in the crotch
of his pants. During cross-examination on
voir dire
, Constable Wirth
explained that she declined to search Mr. Schnarr at the scene so that a
male officer could conduct a proper search at the police station.

[17]

Constable Wirth handcuffed Mr. Schnarr, read him his
Charter
rights
from a police card, and requested a police transport for him. Subsequently,
Corporal Blaine escorted Mr. Schnarr to the station.

[18]

Corporal Shore searched Mr. Schnarr at around 7:30 that night. In addition
to finding seven 0.5 gram bags of cocaine, Corporal Shore searched his mobile phone
and found a series of text messages between Mr. Schnarr and JT (a
nickname the police understood was Mr. Vickersons through information
from both confidential informants), including one on December 20, in which JT
said Sry im home call me back. The officer also searched Mr. Schnarrs
call logs, and found logs of two short conversations between Mr. Schnarr
and JT in the hour preceding Mr. Schnarrs visit to Mr. Vickersons
residence.

[19]

The information from the confidential informants, the surveillance, and
the evidence from the arrest of Mr. Schnarr provided the grounds for the
ITO a search warrant of Mr. Vickersons residence on December 20, 2013. A
telewarrant was issued, and Mr. Vickersons house was searched the same
night.

[20]

When the police executed the search warrant, they arrested Mr. Vickerson
and conducted a search of his person, his vehicle and his residence.

[21]

The police found the following items in a large safe, which they
unlocked with keys seized from Mr. Vickerson:

a)

Two bundles of
Canadian currency, totalling $4,000 CAD;

b)

A one-gram
package of powdered cocaine;

c)

A 40-gram
bag of powdered cocaine;

d)

A 19.7-gram bad
of MDMA;

e)

A bag containing
33 pills of BZP and TFMPP;

f)

100
plastic baggies and some empty pill capsules; and

g)

A score sheet.

[22]

In Mr. Vickersons living room, the police found:

a)

Four $20
Canadian bills;

b)

Pipes containing
marihuana residue;

c)

A
marihuana grinder; and

d)

Glass pipes.

[23]

When the police searched Mr. Vickerson at the time of his arrest,
he was in possession of $360 in $20 Canadian bills folded around a lighter, and
another $93.20 in his wallet. The police also found a pipe and one gram of THC
in Mr. Vickersons truck.

Proceedings at Trial

[24]

At the start of the trial Mr. Vickerson applied for a
constitutional remedy to exclude evidence. In particular, he sought a
voir
dire
to determine the validity of the warrant. The trial judge made three
rulings as a result of the application.

[25]

Mr. Vickerson was initially denied a
voir dire
because he
failed to meet the threshold test set out in
R. v. Vukelich
(1996), 108
C.C.C. (3d) 193 (B.C.C.A), leave to appeal refd [1997] 2 S.C.R. xvi, in the
first ruling:
Ruling Re Application for Voir Dire
(
R. v. Vickerson
(October 21, 2015), North Vancouver 59932-2-C (B.C.P.C.)) at para. 8.
Rather than dismiss the application, the trial judge ordered Mr. Vickerson
to particularize the portions of the ITO that he took issue with.

[26]

In his second ruling,
Ruling on Voir Dire
(October 23, 2015), the
trial judge reasoned that the ITO had three distinct aspects: (1) the
confidential informants; (2) the observations of the police; and (3) the
evidence obtained when the police stopped and searched Mr. Schnarr. The
trial judge dealt swiftly with the first two: Mr. Vickerson did not
display a reasonable likelihood that the evidence from the confidential
informants or the police observations would be excluded. Therefore, he concluded
that there was no need to declare a
voir dire
on this point. However,
the trial judge did declare a
voir dire
with respect to the evidence
obtained through the search of Mr. Schnarrs vehicle.

[27]

The decision to declare the
voir dire
rested on what the trial
judge saw as two irreconcilable decisions of the British Columbia Supreme Court
related to whether evidence obtained in the breach of a third partys
Charter
rights is admissible:
R. v. Todd
, 2015 BCSC 680, and
R. v. Brown,
Lambrecht and Manuel
, 2014 BCSC 1872.

[28]

Todd
and
Brown
diverge on the issue of whether an accused
has standing to apply to exclude evidence from his trial by establishing that
the evidence was obtained via the breach of a third partys
Charter
rights.

[29]

Todd
answers that question in the negative, applying the
established principle that an application to exclude evidence in this context
can only be made by the person whose
Charter
rights have been infringed:
Todd
at paras. 29-30, citing
R. v. Edwards
, [1996] 1 S.C.R.
128 at para. 45.

[30]

Brown
answers that question in the affirmative through an
independent statutory interpretation analysis.
Brown
acknowledges, but
does not apply, the principle in
Edwards
:
Brown
at paras. 44,
56, 65.

[31]

On the
voir dire
, Mr. Vickerson argued that the police did
not have reasonable grounds to stop the truck, and arrest and search its
occupants. Accordingly, Mr. Vickerson contended that the evidence of the
seven 0.5-gram bags of cocaine, and the information on the mobile phone related
to the alias JT, was collected in violation of s. 8 of the
Charter
,
and should be excluded.

[32]

In his third ruling, the
Ruling Re Admissibility of Evidence
(November
10, 2015), the trial judge held that the evidence obtained from the search of Mr. Schnarr
and the vehicle could be included in the ITO, but that the text messages and
call logs between Mr. Schnarr and Mr. Vickerson could not.

[33]

With respect to the non-mobile phone evidence, the trial judge
reviewed the events leading to Mr. Schnarrs arrest and concluded that the
arrest was lawful. The trial judge held that the police did have subjectively
and objectively reasonable grounds to arrest the occupants of the truck based
on the lead investigators observations of the comings and goings to Mr. Vickersons
house during the investigation, informed by her experience in over 100
CDSA
-related

investigations. Accordingly, the trial judge found that the seven 0.5-gram
bags of cocaine found on Mr. Schnarr were obtained in compliance with
s. 8 of the
Charter
and were thus admissible as legally obtained as
a search incident to arrest.

[34]

In the alternative, the trial judge held that if the search was
unlawful, Mr. Vickerson did not have standing to raise the
Charter
issue related to the non-mobile phone evidence.

[35]

There were text messages and a call logged from Mr. Vickerson on Mr. Schnarrs
mobile phone, as well as a logged call from Mr. Schnarr to Mr. Vickerson
in the hour preceding their meeting. The trial judge concluded, citing
R. v.
Pelucco
, 2015 BCCA 370, that Mr. Vickerson retained a privacy interest
in the electronic communications, referring to the text messages and call log
information, on Mr. Schnarrs mobile phone. The trial judge rejected the Crowns
submissions that Mr. Vickersons failure to display a subjective
expectation of privacy was fatal. Such an interest could be inferred. Moreover,
the trial judge rejected the submission that having found the arrest and
search of the occupants of the vehicle was lawful, then [Mr.] Vickerson lacked
standing to allege there was a violation of his rights to privacy. This was
because the trial judge reasoned that 
Pelucco
supports a finding that
[Mr.] Vickerson had a right to privacy even though the arrest of the owner of
the mobile phone was lawful:
Ruling Re Admissibility of Evidence
at para. 13.

[36]

Given that the trial judge had already found reasonable and probable
grounds to arrest Mr. Schnarr, the trial judge reasoned there were also
sufficient grounds to support the warrant.

[37]

Having found that the warrant was lawful, the trial judge concluded that
there was no need to consider s. 24(2) of the
Charter
.

The Issues on Appeal

[38]

Mr. Vickerson raises three grounds of appeal. He says that the
trial judge failed to excise unconstitutionally obtained evidence from the ITO;
that he erred in finding that the ITO as amplified on review contained
sufficient grounds to justify granting the search warrant; and finally, that
the trial judge erred in failing to exclude the evidence pursuant to s. 24(2)
of the
Charter of Rights and Freedoms
.

[39]

Mr. Vickerson breaks the first ground into three parts, alleging
that the trial judge erred by:

a)

finding that the police had reasonable grounds to arrest him on
the strength of the confidential informant information and police surveillance
that formed the basis of the warrant;

b)

determining,
after a
voir dire
, that he did not have standing to challenge the
admissibility of evidence obtained in the search of Mr. Schnarr, which he
contends occurred in breach of his s. 8
Charter
rights; and,

c)

determining that even if Mr. Vickerson did have standing, that the
police had reasonable grounds to stop, arrest, and search Mr. Schnarr, and
admit into evidence the drugs found on him.

Position of the Parties

[40]

Mr. Vickerson submits that the grounds set out in the ITO do not
amount to reasonable grounds, and the trial judge erred in so finding. For
example, he says that there was no observed hand-to-hand transaction, and
questions how one could infer that drugs were being exchanged with no hand-to-hand
contact. He further questions the reliance on the officers experience with a
number of drug transactions. He argues that the trial judge erred in finding
that he did not have standing to challenge the search of Mr. Schnarr or
the vehicle. Finally, he submits that the finding that the text messages and
call logs were unlawfully obtained should have led the trial judge to exclude
all of the evidence obtained pursuant to s. 24(2) of the
Charter
.

[41]

The Crowns position is that there is an abundance of evidence to
justify the issuance of the search warrant to search Mr. Vickersons
house. It says that Mr. Vickerson had no standing to challenge the arrest
and search of Mr. Schnarr and the vehicle he was in, and that if there
was, the arrest and search was lawful in any event. It argues that the trial
judge erred in excluding the evidence of the mobile phone text messages found
in Mr. Schnarrs telephone.

Discussion

Standing

[42]

I will address the issue of standing first. Although this was an
alternative route to the trial judges conclusion, there appears to be some
conflict in the decisions in the trial court that should be resolved, if
possible.

[43]

A person is granted standing to challenge a search and seizure in a
criminal case when they have a reasonable expectation of privacy. The factual
matrix is all-important when assessing a reasonable expectation of privacy.
Here, Mr. Vickerson challenges the search of Mr. Schnarr, and the
seizure of drugs, text messages and call logs pursuant to that search.

[44]

The trial judge proceeded with the analysis of the stop, arrest, search
and seizure in relation to Mr. Schnarr as if Mr. Vickerson had
standing. He found no violation of the
Charter
that would result in the
exclusion of the drugs. He also stated, that if he was wrong in that regard, Mr. Vickerson
did not have standing to challenge the search in any event.

[45]

He also concluded that Mr. Vickerson had standing to challenge the
search of the text messages on the mobile phone, and found that the search was
unlawful based on
Pelucco
. He expunged that evidence from the ITO.

[46]

In
R. v. Craig
, 2016 BCCA 154, this Court examined standing, and
the framework established in
Edwards, R. v. Tessling
, 2004 SCC 67

and
R. v.

Patrick
, 2009 SCC 17, in terms of how to approach whether
someone has standing based on a reasonable expectation of privacy. In
Tessling
and
Patrick
, the Court modified the framework to fit the factual matrix
in those cases. In my view, the
Edwards
framework does not need modification
for the facts in this case, which are straightforward. In
Craig
, the
Court set out the standing test as follows:

[65]

Justice Cory, writing for the majority,
held that the assessment of whether a person has a reasonable expectation of
privacy is considered in all of the circumstances of the case (para. 31).
He continued, however, and added that the conduct of the police in conducting
the search is not relevant to the inquiry in relation to the reasonable
expectation of privacy (para. 33).

[66]      He affirmed
the principle found in
Alderman
v. United States
, 394 U.S. 165 at pp. 171-172 (1969), that:

.
. . [the] suppression of the product of a Fourth Amendment violation can be
successfully urged
only by
those whose rights were violated by the search itself, not by those who are
aggrieved solely by the introduction of damaging evidence
.
[Emphasis added.]

[67]      The Court also affirmed that a reasonable
expectation of privacy can exist, even when it shelters illegal activity (para.
43). Cory J. summarized non-exhaustive factors pertaining to the nature of the
s. 8 right to be secure against unreasonable search or seizure, at para. 45:

1.        A
claim for relief under s. 24(2) can only be made by the person whose
Charter
rights have been infringed. See
R. v. Rahey
, [1987] 1 S.C.R. 588, at p.
619.

2.        Like
all
Charter
rights, s. 8 is a personal right. It protects people and not
places. See
Hunter
,
supra
.

3.        The
right to challenge the legality of a search depends upon the accused
establishing that his personal rights to privacy have been violated. See
Pugliese
,
[1992] O.J. No. 450
supra
.

4.        As
a general rule, two distinct inquiries must be made in relation to s. 8. First,
has the accused a reasonable expectation of privacy. Second, if he has such an
expectation, was the search by the police conducted reasonably. See
Rawlings
,
supra
.

5.       A
reasonable expectation of privacy is to be determined on the basis of the
totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra,
at p. 62.

6.       The
factors to be considered in assessing the totality of the circumstances may
include, but are not restricted to, the following:

(i)    presence at the time of the
search;

(ii)   possession or control of the
property or place searched;

(iii)  ownership of the property or
place;

(iv)  historical use of the
property or item;

(v)   the ability to regulate
access, including the right to admit or exclude others from the place;

(vi)  the existence of a subjective
expectation of privacy; and

(vii) the objective reasonableness of the expectation.

[47]

Here, Mr. Vickerson was not present when Mr. Schnarrs vehicle
was stopped and searched, he was not in possession or control of the property
(the vehicle), he had no ownership in the property, there was no evidence that Mr. Vickerson
had any attachment to the property at all, and Mr. Vickerson did not
testify on the
voir dire
. Therefore, there was no direct or indirect evidence
of any subjective expectation of privacy. In short, there is nothing to support
that Mr. Vickerson had a reasonable expectation of privacy with respect to
the search of the vehicle, the arrest and search of Mr. Schnarr, or the
seizure of the drugs and the mobile phone. Clearly, the trial judge was correct
in concluding that Mr. Vickerson had no standing to challenge the search
and seizure in relation to Mr. Schnarr, apart from the contents of the
mobile phone.

[48]

Mr. Vickerson argues that he should have been able to challenge all
aspects of the searches on a
voir dire
because he had partial standing
based on the search of Mr. Schnarrs mobile phone. Either one has standing
or not. The standing analysis is founded on a reasonable expectation of privacy
in the thing searched or seized. Standing to challenge the contents of a mobile
phone does not translate into standing to challenge searches or seizures where
there is no expectation of privacy.

[49]

I wish to address briefly the
Todd
and
Brown
decisions. In
Todd
, Rogers J. applied the test found in
Edwards
, which is, as
noted above, the correct approach to assessing whether there is standing to
challenge a s. 8
Charter
violation. In
Brown
[1]
,
Funt J. conducted an analysis of the statutory meaning of reasonable grounds
in coming to his conclusion that co-accused Manuel and Lambrecht had standing
to challenge a violation of Browns rights. Suffice it to say that the analysis
performed in that case should be restricted to that case. The
Edwards
framework, subsequently modified in
Tessling
and
Patrick
, is the
appropriate context to determine if a person has standing to challenge a
Charter
violation.


[50]

I turn now to the search of the mobile phone and the discovery of the
text messages. The trial judge concluded, based on
Pelucco
, that Mr. Vickerson
had a reasonable expectation of privacy in the text messages and call logs, and
thus, they should be excluded from the ITO. The Crown, on appeal, submits that
the trial judge erred in that conclusion by misapplying
Pelucco
. I
agree.

[51]

The trial judges holding that Mr. Vickerson had a reasonable
expectation of privacy in text messages sent to a third partys mobile phone is
grounded in his reading of
Pelucco
. In his
voir dire
ruling, the
trial judge read
Pelucco
to stand for the proposition [
sic
] the
court must infer that the sender of a message has a reasonable expectation of
privacy with respect to messages found in the search of a third partys mobile
phone, and thus he excluded the evidence of the text messages without any
further analysis.

[52]

With respect, the trial judge erred in his application of
Pelucco
.

[53]

The holding in
Pelucco
is narrower than the general proposition
that the trial judge describes. Mr. Justice Groberman, for the majority,
explains that a sender will
ordinarily
have a reasonable expectation
that a text message will remain private in the hands of its recipient: at para. 68
(emphasis added).

[54]

However, Groberman J.A. continues, noting that whether a sender of a
text message has a reasonable expectation of privacy in a received message
depends on the totality of the circumstances, which is a test of substance
rather than form, to be determined under the framework established in
Edwards
and elaborated upon in
R. v. Cole
, 2012 SCC 53:
Pelucco
at paras. 35-36.
Accordingly,
Pelucco
does not stand for the proposition that the sender
of a text message
always
has a reasonable expectation of privacy in that
text message as stored on its recipients mobile phone.

[55]

This conclusion was also reached in
Marakah
at para. 4,
where McLachlin C.J.C. held, for the majority, that depending on the totality
of the circumstances, text messages that have been sent and received may in some
cases be protected under s. 8.

[56]

Secondly, the majority holding in
Pelucco
is expressly
inapplicable to situations of a lawful search. At para. 49, Groberman J.A.
notes:

[49]       A person cannot have a reasonable expectation
that messages on another persons cellphone will remain private
in the face
of a lawful search of the device
.

[Emphasis added.]

[57]

The trial judge in this case determined that Mr. Schnarrs arrest
was lawful, however, he did not consider whether the search of the mobile phone
was a lawful search incidental to arrest. He drew a direct line from a
reasonable expectation of privacy to a breach of s. 8.

[58]

In
Marakah
, the majority concluded that the warrantless search of
Mr. Winchesters (the third party) mobile phone two hours after his arrest
was not a search incidental to arrest and was thus in breach of s. 8, a
fact conceded by the Crown. Mr. Marakah had standing to challenge that
search. The majority excluded the evidence of the electronic conversations
pursuant to s. 24(2) of the
Charter
.

[59]

The trial judge was, in my view, correct in concluding that Mr. Vickerson
had standing to challenge the search of Mr. Schnarrs mobile phone. The
search was conducted approximately 45 minutes after Mr. Schnarrs arrest
because Constable Wirth was waiting for a male officer to search him. That does
not explain the delay in searching the mobile phone. The trial judge did not
consider whether this was a search incidental to arrest, however we do not need
to resolve that question because the trial judge ultimately excluded the
evidence of the text messages and the call logs from the ITO based on his
misapplication of
Pelucco
. However, since this decision was in favour of
Mr. Vickerson, it does not assist him in this appeal.

Other
Grounds

[60]

The trial judge refused to permit Mr. Vickerson to raise a
challenge to the ITO based on either the surveillance or the informant
information in the
Ruling Re Application for Voir Dire
. On appeal, Mr. Vickerson
renews his challenge to the surveillance and informant information, rather than
challenging the
Vukelich
ruling itself. It seems to me that should be
the first step in the analysis. When reviewing a trial judges exercise of
discretion to refuse to hold a
voir dire
, the standard of review limits
appellate intervention to cases in which the discretion has not been judicially
exercised. This is a high threshold for an appellant to overcome:
R. v. M.B.
,
2016 BCCA 476 at paras. 46, 107;
R. v. Mastronardi
, 2015 BCCA 338
at para. 63. The Crown, in its factum, did not take issue with Mr. Vickersons
failure to challenge the
Vukelich
ruling on appeal, and argued that the
evidence was unassailable and therefore correctly admitted.

[61]

The discretion to decline to hold a
voir
dire
is founded in the need for trial judges to control the course of
proceedings and to not embark upon enquiries that will not assist the real
issues in the trial:
M.B.
at para. 45. These case management powers
are a critical tool that trial judges should use to minimize delay:
R. v.
Cody
, 2017 SCC 31 at para. 38, citing
Vukelich
with approval on
this point.

[62]

Absent an argument on appeal
demonstrating that the trial judges discretion in declining to hold a
voir
dire
was not exercised judicially, this Court cannot and should not disturb
such rulings.

[63]

However, since both parties argued this ground of appeal on the merits
of the challenge to the surveillance and the informant information, I will
address those submissions. I reiterate that, going forward, the proper approach
in these circumstances is to challenge directly the trial judges exercise of
discretion in declining to hold a
voir dire
as explained in
M.B.
,
Mastronardi
, and
Cody
.

Standard of Review

[64]

The standard of review of whether reasonable and probable grounds
exist is found in
R. v. Shepherd
, 2009 SCC 35 at para. 20:

While there can be
no doubt that the existence of reasonable and probable grounds is grounded in
the factual findings of the trial judge, the issue of whether the facts as
found by the trial judge amount
at law
to reasonable and probable
grounds is a question of law. As with any issue on appeal that requires the
court to review the underlying factual foundation of a case, it may understandably
seem at first blush as though the issue of reasonable and probable grounds is a
question of fact. However, this Court has repeatedly affirmed that the
application of a legal standard to the facts of the case is a question of
law:  see
R. v. Araujo
,
2000 SCC 65
,
[2000] 2 S.C.R. 992
, at para. 18
;
R. v. Biniaris
,
2000 SCC 15
,
[2000] 1 S.C.R. 381
, at para. 23
.
... Although the trial judges factual findings are entitled to deference, the
trial judges ultimate ruling is subject to review for correctness.

[65]

The test on the review of the issuance of an ITO is well established:
The question for the reviewing judge is whether there was reliable
evidence that might reasonably be believed on the basis of which the
authorization could have issued, not whether in the opinion of the reviewing
judge, the application should have been granted at all by the authorizing judge:
R. v. Vu
, 2013 SCC 60 at para. 16, quoting
R. v. Araujo
,
2000 SCC 65 at para. 54.

[66]

A review of the evidence that sets out the grounds for the ITO establishes
that it not only met the test that the authorization
could
have issued,
but overwhelmingly supported the issuance of the warrant to search Mr. Vickersons
residence. Thus, the trial judge made no error in his conclusion on that basis.

[67]

Mr. Vickerson has not demonstrated
that the trial judge failed to exercise his discretion judicially in declining
to hold a
voir dire
related to the surveillance and informant
information, and he has not established a breach of s. 8. It is,
therefore, not necessary to address his final ground of appeal in relation to
s. 24(2).

Conclusion

[68]

For all of these reasons, I would dismiss the appeal.

The
Honourable Madam Justice Bennett

I AGREE:

The
Honourable Mr. Justice Groberman

I AGREE:

The Honourable Mr. Justice
Hunter





[1]

The Crown appealed the decision in
R. v. Brown et al
(CA42669),
however, the appeal was dismissed as abandoned on October 27, 2015.



