R. v. Islam

2024 BCSC 1025 R. v. Islam

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Islam, 2024 BCSC 1025 Date: 20240613 Docket: 33912 Registry: Vancouver Rex v. MD Rafiqul Islam, Charles Lawrence Flynn, Quintin Jerome Anthony and Jordan Gregory Trembley Before: The Honourable Justice MacNaughton Reasons for Judgment (Application to Admit Tracking Data in Voir Dire challenging Production Orders Granted on June 17, 2021) Counsel for the Crown: T. Lattimer A. Russell Counsel for Quinton Jerome Anthony K. Westlake K.C. W. Jessop Counsel for Charles Lawrence Flynn: P.M. Ferguson S. Purton Counsel for Jordan Gregory Trembley: C. Muldoon Place and Date of Hearing: Vancouver, B.C. June 3-5, 2024 Place and Date of Judgment: Vancouver, B.C. June 13, 2024 Table of Contents Introduction and Background Information.. 3 Legal Principles and Analysis. 5 Conclusion.. 10 Introduction and Background Information [1] This decision deals with an application to admit evidence on a voir dire challenging production orders obtained during a Vancouver Police Department ("VPD") drug squad investigation into alleged drug trafficking, known as Project Tache. Project Tache was initiated in late May 2021, based on information from a confidential informant that Taxi V41 was being used to transport and distribute bulk quantities of drugs to various locations in Vancouver. [2] On June 5, 2024, I advised the parties that after considering

the parties submissions, and the cases they relied on, I was dismissing the application with reasons to follow. These are my reasons. [3] Charles Flynn, Quinton Anthony, and Jordan Trembley (collectively, the "defendants") challenge the validity of production orders under s. 8 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.

11. The production orders were issued for key fob records, CCTV footage, and Form "K" tenancy records (the "Production Orders") for two multi-residential buildings located at 1283 Howe Street in Vancouver, BC ("1283 Howe") and 933 Hornby Street/938 Smithe Street ("933 Hornby") in Vancouver, BC. The defendants' challenge is sub-facial. [4] On February 9, 2024, in reasons indexed at R. v. Islam, 2024 BCSC 235, I granted limited leave to the defendants to cross-examine Sgt. Kevin Yuen (the "Affiant") who swore an Information to Obtain (the "ITO") in support of the Production Orders, and, if necessary, to cross-examine Cst. Leslie-Greaves who swore an earlier ITO in support of a Tracking Warrant for Vancouver Taxi V41 (referred to in the ITO as the "Orange Taxi") and whose ITO was attached as Ex. A to the Affiant's ITO. In these reasons I will refer to the taxi as Taxi V41 as it was defined in my earlier reasons. [5] The Affiant was cross-examined on June 3, 2024, for the day. The defendants elected not to cross-examine Cst. Leslie-Greaves. [6] During the cross-examination of the Affiant, Mr. Westlake, counsel for Mr. Anthony, sought to cross-examine on the tracking data recorded by a tracking device placed on Taxi V41 pursuant to the Tracking Warrant. The Crown objected. After argument, I did not permit cross-examination on the tracking data as it was clear from the ITO and from

the cross-examination of the Affiant that he did not review the tracking data for the purposes of preparing the ITO. Instead, the Affiant reviewed summaries of the tracking data prepared by other VPD officers who were tasked with that responsibility for the days of surveillance of Taxi V41. [7] Submissions on the challenge to the Production Orders were scheduled for June 5-6, 2024, extended to June 7 if necessary. The parties requested the matter be put over to June 4, 2024, so that any preliminary issues could be addressed before the submissions began. [8] On June 4, 2024, Mr. Jessop, co-counsel for Mr. Anthony and speaking on behalf of counsel for Mr. Flynn and Mr. Trembley, applied to admit extrinsic evidence ("EE"), contained in the Crown's Stinchcombe disclosure that included the tracking data obtained pursuant to the Tracking Warrant. The EE consisted of excerpts of the more than a thousand pages of tracking data. The defence submits that the tracking data demonstrated that certain assertions in the ITO were erroneous. [9] During submissions, I was provided with one example of why the defendants were seeking to introduce the EE. At para. 39.3 of the ITO, the Affiant says: The Orange Taxi circled the area of 1283 Howe Street from 7:03 p.m. to 7:05 p.m. The Orange Taxi drove to Granville Street and Matthews before returning to 1283 Howe Street. [10] The defendants submit

that the actual tracking data show this to be incorrect and that there are other examples of erroneous material in the ITO when it is referenced against the actual tracking data with respect to Taxi V41. [11] The Crown objected to the admissibility of the EE, and I heard arguments on June 4, 2024. For the purposes of the record, I marked the proposed EE as Ex. I for identification. Legal Principles and Analysis [12] The Crown objects to the EE on the basis that, in a Garofoli review, the court does not go behind the source material relied on by the affiant to determine what the affiant knew or ought to have known. [13] The Crown accepts the defendants' submissions that a subfacial challenge to a judicial authorization is not limited to cross-examination of the affiant. It agrees that it is open to the defendants to establish that the judicial authorization was obtained by fraud, material nondisclosure, or misleading disclosure, or that the facts are different from those put before the authorizing judge. New evidence may be called at the review hearing into the validity of the authorization. Even without cross-examining the affiant, the defence may still demonstrate that the authorization is unlawful and unconstitutional. [14] As Justice Sopinka explained in R. v. Garofoli, [1990] 2 S.C.R. 1421 at 1464, 1990 CanLII 52, there is no need to cross-examine the affiant if deliberate

falsehood or reckless disregard for the truth "can be made out ab extra". In R. v. Pires; R. v. Lising, 2005 SCC 66, Justice Charron implicitly recognized this where, after discussing what she described as the "Garofoli threshold test" for cross-examination, and after pointing out that if the cross-examination is not relevant to a material issue, it will not be permitted, she stated that: [32] The accused remains free to make submissions and elicit relevant evidence on whether the interception constitutes an unreasonable search or seizure within the meaning of s. 8. [15] In my view, the issue to be decided is whether the EE is relevant evidence. [16] What is relevant on a challenge to an authorized search warrant was clearly and definitively addressed by the Supreme Court of Canada in World Bank Group v. Wallace, 2016 SCC 15 at paras. 120-124 [World Bank]. Although World Bank involved a wire tap authorization, the principles set out in it are applicable to other warrants obtained by the police for the purpose of an investigation. As relevant to this application, these paragraphs provide: [120] As a general rule, there are two ways to challenge a wiretap authorization: first, that the record before the authorizing judge was insufficient to make out the statutory preconditions; second, that the record did not accurately reflect what the affiant knew or ought to have known, and

that if it had, the authorization could not have issued (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 50-54; Pires, at para. 41; see also R. v. Grant, [1993] 3 S.C.R. 223, on the exclusion of unconstitutionally obtained information from warrant applications). The challenge here is brought on the second basis, sometimes referred to as a subfacial challenge. [121] In view of the fact that a subfacial challenge hinges on what the affiant knew or ought to have known at the time the affidavit was sworn, the accuracy of the affidavit is tested against the affiant's reasonable belief at that time. In discussing a subfacial challenge to an information to obtain a search warrant, Smart J. of the British Columbia Supreme Court put the matter succinctly as follows: During this review, if the applicant establishes that the affiant knew or should have known that evidence was false, inaccurate or misleading, that evidence should be excised from the [information to obtain] when determining whether the warrant was lawfully issued. Similarly, if the defence establishes that there was additional evidence the affiant knew or should have known and included in the [information to obtain] in order to make full, fair and frank disclosure, that evidence may be added when determining whether the warrant was lawfully issued. (R. v. Sipes, 2009 BCSC 612, at para. 41) [122] Smart J.'s

comments apply equally to a Garofoli application (see R. v. McKinnon, 2013 BCSC 2212, at para. 12 (CanLII); see also Grant, at p. 251; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42). They accord with this Court's observation in Pires that an error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it (para. 41). Testing the affidavit against the ultimate truth rather than the affiant's reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent (Pires, at para. 30; see also R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 21). [123] When assessing a subfacial challenge, it is important to note that affiants may not ignore signs that other officers may be misleading them or omitting material information. However, if there is no indication that anything is amiss, they do not need to conduct their own investigation (R. v. Ahmed, 2012 ONSC 4893, [2012] O.J. No. 6643 (QL), at para. 47; see also Pires, at para. 41). [124] With these principles in mind, while we do not foreclose the possibility that the O'Connor process may be used to obtain records for purposes of a Garofoli application, the relevance threshold applicable to such an application is narrower than that on a typical O'Connor application. Specifically, where

an accused asserts that third party documents are relevant to a Garofoli application, he [page 258] or she must show a reasonable likelihood that the records sought will be of probative value to the issues on the application. The fact that the documents may show errors or omissions in the affidavit will not be sufficient to undermine the authorization. They must also support an inference that the affiant knew or ought to have known of the errors or omissions. If the documents sought for production are incapable of supporting such an inference, they will be irrelevant on a Garofoli application (Pires, at para. 41). [Emphasis added.] [17] Relevance is not determined generally but is based on the applicable test on a Garofoli review grounded in what the affiant knew or ought to have known of the errors. [18] Affiants are entitled to rely on hearsay in the ITO, as long as the source of the evidence is adequately identified along with information bearing on the credibility or reliability of the source. Although an affiant cannot ignore signs that another officer may be misleading them or omitting material information, absent some indication that something is amiss, affiants "do not need to conduct their own investigation": World Bank at para. 123. [19] Here, there is no basis on which I could find that the Affiant knew or ought to have known about possible errors in the reports

prepared by other VPD officers tasked with summarizing the tracking data. There is nothing to suggest that it was unreasonable for the Affiant to rely on those summaries in preparing his ITO or that he knew or ought to have known of any such errors. There was no evidence that the Affiant proceeded in bad faith. [20] While the evidence on a subfacial challenge is not limited to information obtained through cross-examining the affiant, it is limited to information relevant to the scope of the review on a Garofoli hearing--what the affiant knew or ought to have known when swearing the ITO. [21] The Court of Appeal recently dealt with this issue in R. v. Slemko, 2020 BCCA 207, which involved the police investigating a drug lab. The trial judge quashed property search warrants on a subfacial challenge, concluding that the searches conducted pursuant to the warrants breached the appellant's s. 8 Charter right to be secure against unreasonable search and seizure. [22] In Slemko, the warrants were issued based on ITOs sworn by an RCMP officer and were based on confidential informant information, observations of the appellant during surveillance, and observations by a colleague RCMP officer. As relevant to this case, in the ITO, the affiant described information provided to him by his colleague that he had: smelled the odour of sassafras or safrole, a precursor to the production of

methamphetamine, from a position to the east of the property under surveillance, due to a wind from the west; and observed four CCTV cameras on the property under surveillance. [23] At the voir dire, the trial judge permitted cross-examination of the affiant. The appellant's counsel also applied to adduce expert opinion evidence from two witnesses, a meteorologist and a forensic chemist specializing in olfaction, to undermine the assertion that the RCMP officer smelled a chemical at the property. The Crown opposed on the grounds that this evidence could not be relevant under a Garofoli application because it could not be said that the affiant knew or ought to have known about the prevailing weather patterns that day, the acuity of the odour of the chemical, and how those things might interact. The trial judge granted the appellant's application. By prior agreement, a chemist's report was also admitted. [24] The two experts testified: one about variability in wind direction, and the other about the impossibility of the RCMP officer detecting the odour of the chemical in the circumstances he described. In cross-examination, the expert testified that he had not heard the odour of the chemical described as similar to that of licorice. The Crown called a rebuttal witness who testified about the odour of the chemical being similar to licorice, and a neighbour who testified about

smelling licorice emanating from the property on earlier occasions. [25] At the end of the voir dire, the appellant's counsel argued that the confidential informant information and the surveillance, taken together, were not enough to support the issuance of a warrant and the warrant stood or fell depending on the acceptance or rejection of the RCMP colleague's evidence about the smell of the chemical in the circumstances he described. [26] The trial judge quashed the warrants. In overturning this decision, the Court of Appeal wrote: [49] Although the reviewing judge referred to and cited from the leading cases on challenges to warrants, he engaged in precisely the exercise those authorities caution against: testing the affidavit against the ultimate truth rather than the affiant's reasonable belief, turning the hearing into a trial of every allegation in the affidavit: R. v. Pires; R. v. Lising, 2005 SCC 66 at para. 30; R. v. Ebanks, 2009 ONCA 851 at para. 21; World Bank v. Wallace, 2016 SCC 15 at para. 122. [Emphasis added.] [27] The Court determined that the evidence on the voir dire did not support the conclusion that the affiant could not reasonably have believed the evidence of his colleague or that the affiant should have made enquiries that would have revealed the evidence by which the record was augmented on the voir dire: Slemko at para. 65. [28] The Court determined that one of the experts gave evidence in an attempt to engage in an exercise that was not appropriate on the voir dire: determining whether the RCMP officer could have detected the odour of the chemical from an adjacent property, when the proper question was whether the affiant had any reason not to accept or to question what he had been told by his colleague: Slemko at para.

71. There was no basis upon which the trial judge should have concluded that the affiant should have distrusted his colleague's evidence or that he failed to make full disclosure to the judicial justice when he swore his ITO. [29] Although Slemko arose in a different context, it is analogous. In the ITO, the affiant there accurately reported what he had been told. Here, the content of the tracking data summaries is accurately described in the Affiant's affidavit, subject to wording differences on which he was appropriately cross-examined. What the defendants are attempting to do is to test the Affiant's ITO against the ultimate truth as opposed to his reasonable belief and what he knew or ought to have known. [30] The defendants argue that the tracking data in this case shows that some of the Affiant's evidence about where the Taxi V41 was is erroneous. They submit that it is a question of x or y; that the taxi was either at location x or at location y. They submit that they are not attacking the Affiant's belief, but the fact that the VPD was in possession of information that demonstrated that the Affiant's evidence was wrong. [31] Permitting the defendants to file the EE would turn this Garofoli hearing into a trial of every statement in the ITO. Although the defendants submit that they are not attempting to look at the truth of the Affiant's reasonable belief, I conclude

that that is, in fact, what they are seeking to do. They are attempting to do what trial courts have been repeatedly cautioned not to do. Permitting admission of select pages of the tracking data is an attempt to look at the truth of what is contained in the ITO through documents that are hearsay and may, in themselves, be inaccurate. This might result in the Crown seeking to lead amplification evidence of, for example, tracking device glitches and inaccuracies in the data reports. In cross-examination, the Affiant has already acknowledged that such inaccuracies and glitches can occur. He testified about "jumps" in the tracking data that might be caused by cell towers in downtown Vancouver. [32] This subfacial challenge to the Production Orders is not about what the underlying more than a thousand pages of tracking data actually say, but about whether the Affiant had any reason not to accept the reports summarizing the tracking data prepared by officers tasked with creating those summaries. The defendants have not pointed to any authority that distinguishes World Bank or Slemko. Conclusion [33] For the foregoing reasons, I have concluded that the defendants' application to introduce the EE should be dismissed. "MacNaughton J."