nunavuumi iqkaqtuijikkut

NUNAVUT COURT OF JUSTICE

La Cour de justice du Nunavut

Citation: R v Manumikalak, 2018 NUCJ 19

Date: 20180720
Docket: 08-16-419
Registry: Iqaluit

Applicant: Pitsiulak Manumikalak

-and-

Crown: Her Majesty the Queen

________________________________________________________________________

Before: The Honourable Mr. Justice E. Johnson

Counsel (Applicant): Mike Blanchard

Counsel (Crown): Philippe Plourde

Location Heard: Iqaluit, Nunavut

Date Heard: May 11, 2018
Matters: Voir dire hearing for Charter sections 8 and 9 challenge.

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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Tables of Contents
I. INTRODUCTION ......................................................................................... 3
II. FACTS ......................................................................................................... 3
III. ISSUES ....................................................................................................... 8
IV. ARGUMENT ................................................................................................ 8
A. Applicant’s Position ......................................................................................................... 8
B. Crown’s Position .............................................................................................................12
V. ANALYSIS ................................................................................................. 17
A. Did the RCMP officers have reasonable and probable grounds to arrest the applicant and
carry out a search of his luggage incidental to the arrest? .............................................17
B. If the RCMP officers did not have reasonable and probable grounds to arrest and search
the applicant and breached his rights under sections 8 and 9 of the Charter, is the
evidence obtained admissible at his trial? ......................................................................19
 3

I. INTRODUCTION

[1] The applicant filed a Notice of Application for an Order declaring that his rights
under sections 8 and 9 of the Canadian Charter of Rights and Freedoms, Part
I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c 11 [Charter] were violated when his bags were searched by
Royal Canadian Mounted Police [RCMP] officers without a warrant at the
Iqaluit airport on August 10, 2016.

[2] The officers seized six half-pound vacuum-sealed bags of marijuana, ten
boxes containing 1000 vials of cannabis oil, a large number of dime bags,
roughly three ounces of loose marijuana, and three loose vials of oil.

[3] The applicant submits that the officers violated his rights under section 9 of
the Charter when they arrested him without reasonable and probable grounds
and that they violated his rights under section 8 when they conducted a
warrantless search and seizure.

[4] In the event that this Court finds the applicant’s rights were breached, the
applicant seeks an Order under section 24(2) of the Charter, excluding all the
evidence derived from the search.

[5] The court conducted a voir dire and heard evidence by video conferencing
form Constable Kyle Elliot [Elliot].

[6] After hearing submissions, I reserved judgment.

II. FACTS

[7] The Crown adopted the summary of anticipated facts contained at

paragraphs 1-9 of the applicant’s written argument – as supplemented by the
additional evidence of Elliot.
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[8] Elliot is an experienced police officer. He completed his basic training from
May to November 2008. Part of the training he received was assessing and
identifying possible criminal behaviour and the legal requirements to have
reasonable and probable grounds to make an arrest. He was also trained in
the enforcement of the Controlled Drugs and Substances Act, SC 1996, c 19
[CDSA].

[9] Between 2008 and 2010, Elliot was involved in general duties in the Whalley
district of Surrey, British Columbia, enforcing the Criminal Code, RSC 1985, c
C-46 [Criminal Code], and CDSA. The work involved working with a lot of
street people and street gangs. His work included responding to high risk
situations and responding to robberies and break-ins.

[10] From 2010 to 2012, Elliot worked at the detachment in Kelowna carrying
general duties particularly with respect to drug offences.

[11] Between September 2012 to January 2013, Elliot worked in the Downtown
Enforcement Unit in Kelowna. The unit carried out small undercover
operations against street level drug dealers in the downtown core of Kelowna.

[12] From January 2013 until December 2014, Elliot moved to the Special
Enforcement Team in Kelowna. That unit had a mandate to investigate drug
offences, organized crime, and prolific offenders. The work involved the
investigation of drug offences including transportation and trafficking.

[13] Between December 2014 and September 2015, Elliot worked at the Iqaluit
detachment. His duties included being the first responder to Criminal Code
offences and to CDSA offences, when they came up.

[14] From September 2015 until January 2018, Elliot worked with Federal
Operations section of the RCMP in Iqaluit. This work focused on drug
offences, organized crime, and security for the Territory. The section
investigated drugs coming into Nunavut and problems arising from them in the
communities. While with the Federal Operations section, he participated in
approximately 20 different drug operations.
 5

[15] Elliot obtained a Bachelor of Arts degree in Criminology and Psychology. In

2010, he completed a course on Introduction to Human Sources, which taught
him about how to recruit and maintain good relationships with confidential
informants [CI].

[16] In 2012, Elliot completed a course in Handling Principles and Best Practice in
Human Resource Management. This was a more advanced course on
managing confidential informants.

[17] Elliot completed a course on surveillance techniques in 2013. The course

involved a lot of vehicle and foot surveillance where he was given a task and
an objective wherein he would have to decide how to get close to a target and
make observations in a covert way. This included observing the demeanor of
people suspected of having committed crimes.

[18] In 2013, Elliot also completed a course entitled Search Warrant and Drafting.
He was given the facts in a scenario involving drugs and was given the task of
writing up an Information to obtain the Search Warrant. The course covered
the legal requirements for obtaining a search warrant.

[19] Elliot attended a Drug Expert Workshop in 2014 that dealt with investigating
drug activities. He also attended a course entitled Squad Drug and Gang
Presentation that was directed at policing drug offences. He also attended a
course on drug identification.

[20] In 2015, Elliot attended a course entitled “Introduction to Marijuana Growing

Operations.”

[21] Elliot attended a Drug Investigative Techniques Course in 2016. It was a two
week course that covered various aspects of drug investigations including
search warrants, confidential informants, money laundering undercover
operations, and surveillance.

[22] When Elliot was working with on the Federal Operations Project in Iqaluit on
August 9th, 2016, a confidential informant told him that a person named
Pitsiulak Manumikalak would be flying from Ottawa to Iqaluit and then onto
Cape Dorset in the next few days, carrying marijuana, resin, shatter (a solid
 6

THC concentrate), and cocaine. He was described as being a dark male

about 50-years-old. He about 5-feet-6 to 5-feet-7 inches tall and had a
mustache, but no teeth. He should be wearing a Maple Leafs baseball cap
and should be travelling alone.

[23] The CI told Elliot that the applicant was from Cape Dorset and would be
carrying a significant amount of cocaine oils, weed oils, shatter, and marijuana
in his suitcase. Shatter is a highly concentrated form of THC that is extracted
from marijuana. The drugs were to be given to a male named Jamesie in
Cape Dorset. After checking with RCMP in Cape Dorset, Elliot believed that
the person was Jamesie Alariaq.

[24] Elliot testified that the CI first provided the RCMP with information in 2015. He
had provided information about five times before the tip about the applicant
and every time the information was accurate. That information had not been
tested in the legal system, but two search warrants had been issued based on
the information provided. In both cases, the information from the CI was found
to be accurate. The CI was paid for the information provided. Elliot was not
aware of any convictions of the CI for perjury, fraud, or obstructions of justice.
Based on his experience as a police officer, Elliot believed the CI to be
credible.

[25] Elliot checked the passenger lists with both Canadian North and First Air and
discovered that the applicant was listed as a passenger on Canadian North
flight 436 from Ottawa to Iqaluit on August 10, 2016. He was also listed as a
passenger on a flight from Iqaluit to Cape Dorset on August 11, 2016.

[26] Elliot passed on this information to RCMP Corporal Dykstra [Dykstra] who
reviewed the accused’s Police Reporting and Occurrence System [PROS]
record. Dykstra discovered that the applicant had been a suspect in a drug
investigation that occurred in 2014, but had no drug convictions. Dykstra also
reviewed Alariaq’s PROS record and found he had several convictions for
possession and possession for the purpose of trafficking in drug oils and
marijuana.

[27] Elliot contacted the Ottawa Police at the Ottawa airport and provided the
information received from the CI.
 7

[28] On 11:06AM on August 10, a member of the Ottawa Police Service confirmed
that the applicant arrived for his flight alone wearing the Maple Leaf ball cap
and checked one bag. The Ottawa Police Service forwarded a photo to
Dykstra of the man they suspected of being the applicant as he passed
through security at the Ottawa airport. Dykstra forwarded the photograph to
RCMP members in Cape Dorset and they confirmed that the person in the
photograph was the applicant.

[29] After the applicant disembarked flight 436 at the Iqaluit airport at 4PM, Elliot
and Dykstra observed him for about 15 minutes as he stood close to the
luggage carousel. They identified Mr. Manumikalak from the security picture
forwarded by the Ottawa police. The officers were located about 15 feet from
him in plain clothes. The applicant was wearing a Maple Leaf ball cap and
sunglasses. He did not remove the sunglasses and Elliot took this to be a tell
similar to that used by poker players to hide their eyes and disguise their
nervousness. They observed him looking over his shoulders as if he was
looking for police. He seemed very nervous and in a rush unlike others who
were joking and talking.

[30] Because the applicant retrieved a black bag from the carousel, Elliot was
confident that he had the grounds to arrest the applicant for offences under
the CDSA. The applicant grabbed a black bag and Elliot arrested him shortly
after for possession of controlled substances. Outside the airport, Dykstra
read the applicant his rights.

[31] After verifying that the applicant’s name was on the bag, Elliot and Dykstra
opened it and discovered illegal drugs. They took the applicant and the bag
back to the Federal Operations office.

[32] From the seized bag the officers seized: six half-pound vacuum-sealed bags
of marijuana, ten boxes containing 1000 vials of cannabis oil, a large number
of dime bags, roughly three ounces of loose marijuana, and three loose vials
of oil.
 8

[33] The applicant spoke to Defence Counsel from 4:53 until 5:04PM. At 7:17PM,
Dykstra conducted a recorded interview with the applicant when the applicant
acknowledged that he was bringing drugs from Ottawa to Cape Dorset.

[34] The applicant appeared before a Justice of the Peace and was released
shortly after.

III. ISSUES

[35] Did the RCMP officers have reasonable and probable grounds to arrest the
applicant and carry out a search of his luggage incidental to the arrest?

[36] If the RCMP officers did not have reasonable and probable grounds to arrest
and search the applicant and breached his rights under sections 8 and 9 of
the Charter, is the evidence obtained admissible at his trial.

IV. ARGUMENT

A. Applicant’s Position

[37] The applicant submits that Dykstra and Elliot lacked objectively reasonable
and probable grounds to arrest the applicant because they acted on a tip from
a confidential informant, who provided no details. Furthermore, by purporting
to “corroborate” the tip with surveillance that yielded nothing out of the
ordinary and provided no link to criminal activity, the officers failed to establish
reasonable and probable grounds to arrest the applicant.

[38] Section 495 of the Criminal Code authorizes a peace officer to arrest without
a warrant any person whom the officer has reasonable grounds to believe has
committed or is about to commit an indictable offence. As held at paragraph
24 in R v Storrey, [1990] 1 SCR 24, 1990 CarswellOnt 78 [Storrey] this
section requires the officer’s subjective belief, that a person has committed or
is about to commit an offence, be objectively reasonably.
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[39] The standard of “reasonable and probable grounds” to arrest was articulated
by Martin J.A. for the Ontario Court of Appeal in R v Debot, [1986] OJ No 994,
30 CCC (3d) 207 [Debot]. The Supreme Court of Canada affirmed Martin
J.A.’s reasoning at paragraph 60 of [1989] 2 SCR 1140, 1989 CarswellOnt
111. In her reasons Wilson J., identified three concerns to be addressed in
weighing the evidence being relied upon to find reasonable grounds for arrest.
First, was the information predicting the commission of a criminal offence
compelling? Second, where that information was based on a ‘tip’ originating
from a source outside the police, was that source credible? Finally, was the
information corroborated by police investigation prior to making the decision to
conduct the search? The totality of the circumstances must meet the standard
of reasonableness. Weaknesses in one area may, to some extent, be
compensated by strengths in the other two.

[40] In Debot, the police conducted a warrantless search incident to arrest based
on information received from a CI. The CI provided the police with details of
an upcoming drug transaction between three parties, including the appellant
Debot. The CI purported to have obtained this information first-hand from one
of the impugned parties. Police had relied upon the CI in the past. In addition,
the parties expected to be involved in the transaction were known to the
police as drug users and traffickers. Acting on this information, the police
conducted surveillance. The police saw the suspects conduct a suspected
hand-to-hand transaction. The police saw the appellant’s car, previously
observed at other suspected drug transactions, at the scene. The police
followed the car, detained it, and searched the appellant.

[41] The trial judge found that the police lacked reasonable grounds to search
Debot. The Court of Appeal and the Supreme Court of Canada disagreed with
the trial judge on the interpretation of the of the “totality of the circumstances”
and found that the cumulative effect of the facts validated the police’s decision
to treat the informant as credible because the sequence of events actually
observed conformed sufficiently to the anticipated pattern sufficiently to
remove the possibility of innocent coincidence.
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[42] At Debot paragraph 17, Martin J.A. stated that, when an arresting officer relies
upon information from a CI, to establish reasonable and probable grounds the
CI must provide more than a mere statement that a certain person is carrying
on a criminal activity or that drugs will be found at a certain place. The officer
relying on an informer’s tip to make a warrantless arrest must provide support
for his or her conclusions that the CI’s tip gives rise to reasonable grounds for
that arrest. He cited the following factors as being relevant to the assessment.
First, whether the CI’s tip contains sufficient detail to ensure that it is based on
more than rumour or gossip. Second, whether the CI discloses his or her
source of knowledge. Third, whether there are any indicia of his or her
reliability, such as past cooperation or corroboration by police surveillance.

[43] In Debot, Martin J.A. and Wilson J. were satisfied that reasonable and
probable grounds existed to effect the warrantless search of the appellant in
light of the “totality of the circumstances”. Where a CI provides detailed
information, the police need not confirm each detail as long as the events
actually observed conform sufficiently to the anticipated pattern to remove the
possibility of innocent observance. However, Wilson J. cautioned at
paragraph 70 that “the level of verification required may be higher where
police rely on an informant whose credibility cannot be assessed or where
fewer details are provided and the risk of innocent coincidence is greater”.

[44] As the same Court of Appeal subsequently confirmed in R v Zammit, [1993]

OJ No 881, 1993 CarswellOnt 93, observation of innocent and commonplace
conduct is of little weight in corroborating a CI’s claims. In that case, a CI
accurately provided the appellant’s address, a description of his vehicle, the
name and address of the workplace, along with details of an anticipated
cocaine transaction. The Court concluded at paragraphs 26 to 28 that the
details provided “would be known to anyone familiar with the appellant and
would not in any way substantiate the allegation that the appellant was
involved in drugs.”

[45] In the case at bar, a CI told Elliot that the applicant was travelling to Cape
Dorset in the next few days. The CI didn’t tell him when or on which airline
and the police had to make inquiries with both First Air and Canadian North.
 11

[46] Dykstra consulted the PROS database and determined that the applicant was
once a “suspect” in a drug investigation although he was not charged, and he
had no convictions for drug-related offences on his criminal record.

[47] With the assistance of the Ottawa Police Service, Elliot and Dykstra confirmed
that the applicant was in fact flying to Cape Dorset.

[48] That was the extent of the corroboration for the tip. Elliot made the bald
assertion that this informant had provided information in the past and was
reliable, while providing the Court with zero support for this assertion.

[49] Surveillance of the Applicant, intending to corroborate the tip, yielded nothing
but commonplace conduct; the applicant was travelling by air (the only way to
get to Cape Dorset), something that would be known to anyone familiar with
the applicant and likely many others.

[50] Essentially, what the police had was corroboration of identity and that the
applicant was travelling by air with one bag. What the test requires is
evidence or events from a CI that would remove the possibility of innocent
coincidence. The police did not observe any activity that linked the applicant
to criminal activity. The only link to criminal activity is that the CI said there
were drugs in the bag. They had no information on who supplied the drugs in
Ottawa, the quantity of drugs that would be bought, the reason the applicant
would have been in Ottawa before that, the reasons for his stay in Ottawa,
whether he paid for the airfare or it was paid by someone else, and generally
the purpose of his trip.

[51] What the police did not have were incidents or events which in-and-of-
themselves remove innocent coincidence. For example, drug investigations
can have facts where discrete parties meet in different parts of a small town.
They can meet at a certain time with certain vehicles. This information would
give an air of suspicion and remove innocent coincidence.

[52] Elliot was an experienced officer who had knowledge about drafting the
documentation necessary to obtain a search warrant and had the time to get
one. The fact that he did not is an indication that Elliot was uncertain that he
had the reasonable and probable grounds to make an arrest.
 12

[53] In summary, the information gathered by the RCMP fell short of the standard
set out in Debot. It is impossible to conclude, without resorting to
impermissible ex post facto reasoning, that the officers possessed reasonable
grounds for arrest. The applicant’s arrest was accordingly arbitrary and
offended section 9 of the Charter.

B. Crown’s Position

[54] As set out at paragraph 17 of Storrey, there are two parts to the analysis of
determining whether the police complied with section 495(1) of the Criminal
Code. First, the officers must subjectively have reasonable and probable
grounds on which to base the arrest. Second, those grounds must be
justifiable from an objective point of view.

[55] At paragraph 8 in R v Williams, 2009 ONCA 35, [2009] OJ No 123, the

Ontario Court of Appeal held that the first part of the analysis must be made in
the context of the circumstances presented to the officer. At paragraphs 18 to
21 in R v Juan, 2007 BCCA 351, [2007] BCWLD 4870, the British Columbia
Court of Appeal stated that the subjective reasonableness of the officer’s
belief must be considered in light of the officers experience with the form of
criminal activity under investigation.

[56] At paragraph 31 of R v Whyte, 2011 ONCA 24, [2011] OJ No 126, the Ontario
Court of Appeal held that objective reasonableness of the arresting officer’s
grounds “must be assessed from the standpoint of the reasonable person
‘standing in the shoes of the police officer’”.

[57] At paragraph 27 of R v Jir, 2010 BCCA 497, [2010] BCWLD 8813 [Jir], the
British Columbia Court of Appeal held that the “reasonable ground” standard
is obviously lower than the standard for a criminal conviction and it is also
lower than the standard of “balance of probabilities”.

[58] As noted by Defence Counsel, the three concerns noted in Debot that must
be addressed by police to justify a warrantless search are as follows. First,
was the information predicting the commission of a criminal offence
compelling? Second, where the information is based on a tip originating from
 13

a source outside the police was that source credible? Finally, was the
information corroborated by police investigation prior to making the decision to
conduct the search?

[59] Regarding the first concern, the Crown submits that the information predicting
the commission of a criminal offence was compelling:

a. The CI provided the name of the applicant;

b. The CI provided the itinerary of the applicant;

c. The CI provided a range of return dates of the applicant;

d. The CI provided information that the applicant would be returning with

drugs in his luggage;

e. The CI provided information regarding the type of drugs that the

applicant would be transporting;

f. The CI provided the name of the person for whom the applicant was
transporting the drugs; and,

g. The CI provided further background information on the applicant.

[60] At pages 7 and 8 of R v Perreault, 1992 CanLII 3353 the Quebec Court of
Appeal held that, in making a determination of probable cause, the relevant
inquiry is not whether particular conduct is ‘innocent,’ but rather the degree of
suspicion that attaches to particular types of non-criminal acts. Consequently,
as noted at paragraph 29 of R v Fadel, 2015 QCCA 1233, 2015 CarswellQue
7057 [Fadel], it doesn’t matter that most of the details provided by the CI are
‘innocent’, it is the totality of the circumstances that provides enough grounds
for the officers to decide to act.

[61] At paragraphs 29 and 41 of Fadel, the Court of Appeal noted that the Court
assessing the conduct of the police officers has to be cognizant that police
officers are trained to detect criminal activities and that their view on the
entirety of circumstances is based on that experience.
 14

[62] Regarding the second concern the Crown submits that the source of the tip
was credible:

a. The CI provided a number of details showing his knowledge of the

commission of the offence;

b. The CI had been used as a CI by the officers in the past and had been
providing information to the RCMP since 2015;

c. The CI had provided information on approximately 5 occasions;

d. The information provided by the CI was found to be accurate and was

corroborated in most cases through other sources of information,
including database checks;

e. The previous information provided led to two search warrants being

issued where drugs were seized:

i. On one occasion, information was received that marijuana was

being sold from a location. A search warrant was executed on the
residence and marijuana was seized.

ii. On another occasion, information was received that drugs were

being sold at a location. A search warrant was executed on the
location and marijuana and drug paraphernalia were located.

f. The CI is motivated to provide information for monetary reward and has

been paid for information provided to the RCMP; and,

g. The CI does have criminal record but there are no convictions for fraud,
perjury or obstruction of justice.

[63] As held at paragraph 19 of R v McCargar, 2007 ABQB 30, 413 AR 329, the
amount of corroboration required in each case is fact-specific. The Alberta
Court of Appeal stated that a higher level of corroboration is required where
the information was not particularly compelling. The Court also noted that the
reliability of the informant was unknown and referred to Wilson J.’s comment
 15

at paragraph 63 of Debot, “... the level of verification required may be higher

where the police rely on an informant whose credibility cannot be assessed or
where fewer details are provided and the risk of innocent coincidence is
greater”.

[64] As held in R v Goodine, 2006 NBCA 109, 307 NBR (2d) 178, there are
instances where information was obtained from a single informant with no
further corroboration being required. In that case, the Court of Appeal affirmed
the decision from the trial judge to confirm that the officers had the required
grounds to arrest the accused, even though they were tipped-off by only one
informant.

[65] Regarding the third concern, the Crown submits that the officers corroborated
the information – by their own investigation – prior to making the decision to
arrest.

a. The officers checked with First Air and Canadian North and were
provided with the flight status for the applicant, corroborating the
information received from the CI;

b. The officers obtained assistance from the Ottawa Police Authority and
from Ottawa Police Services, who obtained visual confirmation that the
applicant had attended, checked in, and checked one suitcase. The
police also confirmed that the applicant was travelling alone;

c. The officers showed the pictures obtained from Ottawa Airport Policing
to a special constable who was able to confirm that the person in the
picture was the applicant, further corroborating the information;

d. The officers made checks in the PROS and Canadian Police

Information Centre [CPIC] databases. The officers obtained information
which strengthened the grounds of the officers to arrest the applicant.
They found that the applicant was a suspect in an investigation for
possession of marijuana for the purpose of trafficking in 2014. The
officers also found that the person for whom the applicant was allegedly
transporting the drugs, Jamesie Alariaq, was the subject of numerous
investigations for drug related offences, including possession of
 16

marijuana (2012 and 2015), marijuana oil (2015), as well as possession

for the purpose of trafficking marijuana (2016). The RCMP officers were
entitled, by law, to consider the background of the applicant, and the
background of the involved third-party, in order to assess the credibility
of the informant and to assess how compelling the information was;
and,

e. The officers conducted visual surveillance at the Iqaluit airport. They

thought the applicant looked nervous, and observed as he looked over
his shoulder several times with his sunglasses on, indoors. They
observed the applicant take possession of a bag and walk toward the
exit before arresting him.

[66] The Crown submits that the surveillance completed by the RCMP was
complete and extensive in the circumstances. As noted at paragraph 32 of
Debot, the police are not required to confirm each detail in an informant’s tip
provided the sequence of events actually observed conforms to the
anticipated pattern to remove the possibility of innocent coincidence.

[67] As previously noted in Fadel, the observations of the officers about the
conduct of the applicant is also relevant and must be assessed considering
the experience and training of the officers as they are trained to detect
criminal activities and behaviour indicating criminal behaviour.

[68] Finally, as set out in Debot, the prior involvement of the parties is also
relevant in assessing the reasonable grounds of arrest. The RCMP reviewed
the PROS records of the involved individuals and assessed them with the
information provided by the CI and concluded that they had the grounds to
arrest the applicant.

[69] The Crown submits that the totality of circumstances meets the
reasonableness standard and if the court finds weaknesses in one area, then
it may be compensated by strength in the other two. For example, in Jir the
information provided by the informant was very precise, but the officer who
executed the arrest was unaware of the identity of the informant and the
informant’s reliability. The totality of the circumstances was such that the
weaknesses in the credibility stage were overcome in the compelling stage.
 17

[70] In summary, the Crown submits the applicant was lawfully arrested by the
RCMP. As confirmed by the Nunavut Court of Justice in R v Schurm, 2011
NUCJ 36, [2011] Nu J No 41, police are lawfully entitled to search luggage as
a search incidental to an arrest. Since the arrest and search were lawful the
statement provided by the applicant is not tainted by any breaches of his
rights.

V. ANALYSIS

A. Did the RCMP officers have reasonable and probable grounds to

arrest the applicant and carry out a search of his luggage
incidental to the arrest?

[71] I am satisfied that the information obtained from the CI by the police was
compelling for the reasons set out in the Crown’s written argument. While
there were many other details missing, as noted by Defence Counsel, the
police do not have to corroborate everything – particularly when they were
working in a short time frame. As stated in Perreault, the police had grounds
to be suspicious particularly, as noted in Fadel, where the leading officer was
very experienced in detecting criminal activities involving drugs. Elliot had
been a member of the RCMP for 10 years and had spent much of that time
investigating drug offences, taking many courses to help him in his work. He
has worked on the street and undercover. He has dealt with organized crime.

[72] Taken separately, the information from the CI could be construed as being
innocent coincidence. However, when looked at as a whole, the information
was compelling enough to start the investigative process while working on a
short timeline.

[73] I am also satisfied that the CI was a credible source because of the reasons
set out in the Crown’s written argument. The CI in this case was more reliable
than in Debot. In Debot, the police officer had had at least one previous
dealing with the informant and described him as "reliable". On that occasion,
the informant advised him that a large quantity of speed would be found at a
particular residence. Only trace amounts of speed were found, but a larger
 18

quantity of marijuana was seized. In this case, the CI had been used on about
five previous occasions and on two of them search warrants were executed,
which resulted in the police finding the suspected drugs.

[74] The weakest part of the Crown’s case was the corroboration concern. As
Defence Counsel has pointed out, the only way to get to Cape Dorset was by
air travel and many of the observations of the police could apply to any
traveller to the north. The only facts to suggest that the applicant was not an
innocent coincidence were: his background as a suspect and his connection
to a suspected drug trafficker who had three convictions for drug offences.
The airport surveillance could have applied to anyone. Some people leave
their sunglasses on indoors and looking over the shoulder could also apply to
many people who are looking for someone to meet them. Interpreting
nervousness is very subjective.

[75] However, Elliot and Dykstra took what steps they could on a short timeline to
ensure that the person arriving at the airport was the applicant. They had the
Ottawa police take a picture of him at the Ottawa airport and then had it sent
to Cape Dorset so they could make a positive identification at the Iqaluit
airport. He also fit the description provided by the CI on approximate age and
height, having a moustache, and wearing the Maple Leaf ball cap.

[76] Standing alone the corroboration would be insufficient to satisfy the

requirements for a lawful arrest. But, in the totality of the circumstances, I am
satisfied the three concerns have been met. As Wilson J. stated at paragraph
70 in Debot, “the level of verification required may be higher where the police
rely on an informant whose credibility cannot be assessed or where fewer
details are provided and the risk of innocent coincidence is greater.”

[77] Here, the credibility of the informant had been tested and there were sufficient
details provided to remove the risk of innocent coincidence. The high
credibility of the CI reduced the level of verification required.
 19

[78] Elliot and Dykstra both had a subjective belief that they had the grounds to
arrest the applicant. As Elliot testified:

I believed all the grounds were there. I was very confident in this arrest. Yea, basically he
was travelling alone and he would be--- he checked one bag. He grabbed the bag. I gave
him enough time to make sure it was the correct bag that he was looking at. He grabbed
the handle and started walking away.

[79] The objective reasonableness of this belief must be assessed in light of the
officer’s experience with the form of criminal activity under investigation. As I
have noted, Elliot was very experienced in investigating drug offences. It must
also be assessed from the standpoint of the reasonable person “standing in
the shoes of the police officer”.

[80] With these points in mind, I must apply the much lower standard of proof that
is below a balance of probabilities. When I do, I have no doubt that there were
reasonable and probable grounds for the arrest and it was lawful.

B. If the RCMP officers did not have reasonable and probable grounds
to arrest and search the applicant and breached his rights under
sections 8 and 9 of the Charter, is the evidence obtained
admissible at his trial?

[81] Since I have found the arrest was lawful there was no breach of the
accused’s Charter rights and the evidence obtained is admissible at the
applicant’s trial.

Dated at the City of Iqaluit this 20th day of July, 2018

______________________
Mr. Justice Earl D. Johnson
Nunavut Court of Justice