Pubdate: Wed, 22 Mar 2017
Source: Telegram, The (CN NF)
Copyright: 2017 The Telegram
Author: The Telegram
Page: 7


A recent Newfoundland and Labrador Supreme Court decision tested the
weight the justice system places on confidential police informants.

The case revolved around a British Columbia man arrested and charged
in Newfoundland with drug-related offences in February 2015.

The accused applied to the court to have certain police evidence
excluded from his case - particularly the police informant information
- - stating that his rights under Section 9 of the Charter of Rights and
Freedoms were breached. He claimed police did not have reasonable
grounds to make the arrest nor search his vehicle.

Justice Alphonsus E. Faour gave an oral judgment on March 13
dismissing the man's application.

In the written document filed with the court, the judge stated the
information police obtained from confidential informants was
sufficiently reliable and "when considered with the fruits of the
police investigation, there were reasonable grounds for the arrest."

Any deficiencies in the investigation were minor, Faour noted, and the
investigation was generally conducted "conscientiously and

"Police were not to be held to a standard of perfection in the
investigation, but only that of reasonableness," he stated.

Details of the case are that, in December 2014, the RCMP/ RNC combined
forces special enforcement unit (CFSEU) received information the
accused had been travelling to Newfoundland for the purpose of
allegedly selling marijuana. That information came from a confidential
informant. Further information was obtained later from a second informant.

The statement notes officers considered the first informant to be
reliable, as that person had been used as an informant for some time,
and previous information from the individual had proven accurate and
led to other arrests and convictions. The officers did not consider
the second informant as reliable as the first, but the information
appeared to be accurate when followed up on by the police unit.

Members of the police unit conducted surveillance on the accused based
on the information from the first informant. During the operation, the
police team observed that the accused was "engaged in activities
consistent with drug transactions."

Surveillance information consisted of the accused meeting with
individuals in diverse places, and various trips from these places to
the commercial self-serve storage units where it appeared bags were
being stored.

On Feb. 11, 2015, the accused's vehicle was pulled over on the
Trans-Canada Highway. A search of the vehicle found more than 40
pounds of marijuana in one- and half-pound packages.

The accused was subsequently charged with possession of marijuana for
the purpose of trafficking, trafficking in marijuana and conspiring
with others to traffick in marijuana.

In his application to have the evidence against him tossed out, the
accused argued that the arrest was deficient due to the police relying
on confidential informers, the failure of police to consider innocent
alternate explanations for the activities observed during the
surveillance and the fact that police officers acknowledged there were
aspects of the investigation not complete in December 2014.

He also stated that police notes were not complete, with key points
missing from the notes.

In his ruling, Faour stated he had to evaluate the police conduct in
arresting the accused and whether the information officers used to do
so was reasonably reliable, and that the lead investigating officer
was not acting in an arbitrary or precipitous manner.

Faour noted the accused, in his application, focused largely on what
the police did not do in their investigation. He said his role as a
justice, however, was to determine the adequacy of what the police
officers did.

The judge noted that police had information from two confidential
sources - one with a high level of reliability based on the track
record of interactions with police, and one with a low level of
reliability - and "while overall I would find these sources
sufficiently reliable to attract the attention of the police, by
themselves they could not form the basis for an arrest."

He noted that police did not make the arrest based on the information
from the informant sources alone. More information, he said, came from
extensive surveillance over three days in December 2014, and on Feb.
11, 2015.

"The observations (of the surveillance) disclosed a series of actions
and interactions with other individuals which, by themselves, could
have innocent explanations, but when taken cumulatively, in
particularly against their experience and training, gave the officers
sufficient grounds to make the arrest," the judge said.

"If there were any deficiencies in the factual matrix developed during
the investigation they were not fatal and, in any event, the police at
this stage only had to have sufficient grounds to raise a reasonable
probability that illegal activity was being carried on."

Faour said he was satisfied the accused's rights against unreasonable
detention under the Charter of Rights and Freedoms were not infringed,
and that the search of his vehicle was justified.

"The evidence shows that the arrest was done reasonably. There was no
high-handed conduct, no violence and no affront to the dignity of (the
accused)," Faour stated. "In addition, there was close compliance with
his rights under Section 10, that is, to be informed of the reason for
the arrest and the right to counsel. There was no behaviour which had
affected his rights. This factor favours inclusion of the evidence.

"This case is entirely reliant on evidence obtained by the arrest and
subsequent search. This is a serious offence, and Parliament has
indicated that fact by setting the maximum penalty at life
imprisonment. The Crown was quick to point out the maximum is not
being contemplated here, but it does point out the view of Parliament.
In my view, to exclude evidence on this basis would tend to bring the
administration of justice into disrepute."
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