A sincerely held subjective belief is not sufficient. A reasonable suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment. While the trial judge cited the correct caselaw, his interpretation was incorrect and constituted an error of law. For this reason the appeal was allowed.
R. v. [REDACTED],  PEIJ No. 44
Prince Edward Island Court of Appeal
Charlottetown, Prince Edward Island
[REDACTED] C.J.P.E.I., [REDACTED] and [REDACTED] JJ.A.
Heard: June 5, 2019.
Judgment: July 4, 2019.
[REDACTED] and [REDACTED], counsel for the Appellant.
[REDACTED] and [REDACTED], counsel for the Respondent.
Reasons for judgment
Reasons for judgment were delivered by [REDACTED] J.A. Concurred in by [REDACTED] C.J.P.E.I. and [REDACTED] J.A.
1 [REDACTED], who has subsequently changed his name to [REDACTED], appeals a decision of the Prince Edward Island Supreme Court that denied his application to exclude evidence obtained as a result of two data number recorder warrants issued pursuant to s.492.2 of the Criminal Code and an authorization to intercept private communications (wiretap authorization) issued pursuant to Part Six of the Criminal Code.
2 Police commenced an investigation into drug trafficking in Prince Edward Island and New Brunswick code named "Project Lurid" in November 2012. The investigation included judicial authorizations for trafficking warrants (492.1 Criminal Code), data number recorders (492.2 Criminal Code), general warrants (487.01 Criminal Code) and ultimately a wiretap authorization (Part Six Criminal Code).
3 [REDACTED] surfaced in the investigation around July 2013. He was subsequently charged along with several others with the offence of conspiracy to traffic in a controlled substance contrary to ss.5(1) and 5(3) of the Controlled Drug and Substances Act thereby committing an offence under s.465(1)(c) of the Criminal Code. [REDACTED] entered a not guilty plea. His sole defence was Charter based. He brought three separate applications to excise all evidence obtained by: (1) data number recorder warrant granted under s.492.2 and issued October 2, 2013; (2) data number recorder warrant granted under s.492.2 of the Criminal Code and issued 28 November 2013, on the grounds that the information to obtain in support of these two data number recorder warrants did not establish reasonable suspicion; and (3) the wiretap authorization granted under Part Six of the Criminal Code December 12, 2013 on the grounds that (a) when the evidence by way of the two data number recorder warrants are excised, the affiant does not have the requisite grounds; and (b) alternatively, there was no investigative necessity to merit the issuing of the authorization. If he had been successful in his three motions, there would have been no evidence upon which to base a conviction.
4 The trial judge heard the applications March 16-17, 2016 and issued a written decision April 29, 2016 (R. v. [REDACTED] and [REDACTED], 2016 PESC 17) dismissing the applications to excise evidence resulting from the two data number recorder warrants. The trial judge did not deal with the evidence obtained by the wiretap application.
5 As a result of this ruling [REDACTED] acknowledged that, based upon the admissible evidence, the Crown could prove its case. The trial judge therefore entered a guilty verdict.
6 [REDACTED] appeals conviction on the following three grounds: (1) the trial judge erred in law by misunderstanding and/or misapplying the test for "reasonable suspicion" by relying on an ambiguous and/or incorrect meaning of the test; (2) the trial judge erred in law in misunderstanding and/or misapplying the legal test by applying a hindsight based analysis to support his conclusion that the information to obtain established a reasonable suspicion; (3) the trial judge erred in law by failing to supply sufficient reasons for his decision.
7 A justice may issue a warrant authorizing a peace officer to obtain transmission data, commonly called data number recorder, where a justice is satisfied on information on oath that there are reasonable grounds to suspect that the transmission data will assist in the investigation of an offence (s.492.2).
8 [REDACTED] states that in assessing whether or not the information to obtain met the necessary threshold of reasonable suspicion the trial judge utilized various definitions of reasonable suspicion that are inconsistent with the requisite legal standard in criminal law.
9 The Crown concedes that "describing reasonable suspicion as a hunch, even a hunch based on experience, is incorrect." The Crown argues, however, that when the reasons are read as a whole it becomes evident that the trial judge properly applied the reasonable suspicion test. The Crown points out that the trial judge cited the correct test as articulated by this court in R. v. Ayangma, 2016 PECA 6, and R. v. Kang-Brown, 2008 SCC 18. In my view, notwithstanding the trial judge cited the correct test from Ayangma and Kang-Brown, he clearly misunderstood the application of the test.
10 Reasonable grounds to suspect means reasonable suspicion. Reasonable suspicion is not the same thing as reasonable grounds to believe. Both concepts must be grounded in objective facts and stand up to independent scrutiny. However reasonable suspicion is a lower standard as it engages reasonable possibility rather than probability. As this court stated in Ayangma at P37:
Reasonable and probable grounds relate to the probability of criminal activity; reasonable suspicion relates to the possibility of criminal activity. Reasonable suspicion is the intermediate standard between suspicion and reasonable and probable grounds. Reasonable and probable grounds will suffice to obtain a search warrant while reasonable suspicion will not. It is simply a matter of degree. To determine reasonable suspicion the court must consider the constellation of objectively discernable facts.
11 The trial judge began his analysis of the test for reasonable suspicion by referring to dictionary meanings which include meanings for the word "reasonable" as "not irrational or absurd" and the word "suspicion" as meaning "1)imagination of something that is possibly likely, 2) a faint belief that something is the case, 3)a notion, 4) an inkling, 5) a hint, 6) an intuitive feeling." [Emphasis in original]
12 He then cited the correct test from Ayangma and Kang-Brown. Following that however, he stated at P33: "The reasonable suspicion standard favors investigative officers who have an idea, a suspicion, a hunch, a notion, a feeling -- words and concepts which are not based on percentages but which reflect the experience of investigative police who gain an appreciation from multiple sources of what is going on."
13 The law is quite clear that reasonable suspicion is not simply a suspicion nor is it a hunch, a notion or a feeling. It means, as stated in Kang-Brown at P75, "something more than a mere suspicion and something less than a belief based on reasonable and probable grounds." A sincerely held subjective belief is not sufficient. A reasonable suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment. In my view, notwithstanding the fact that the trial judge cited the correct caselaw, his interpretation was incorrect and constitutes an error of law.
Hindsight based analysis
14 In assessing whether the information in the information to obtain was credible, compelling and corroborated (R. v. Debot,  2 S.C.R. 1140) the trial judge wrote at P36:
The analysis which supported this conclusion has been called The Three Cs: credible, corroborated and compelling. It is in part a hindsight based test. In the present case: (1) the evidence received by the police from the information or informants has turned out to be 100% true (credible); (2) when the police arrested Mr. [REDACTED] they found a large quantity of marijuana, exactly as expected (compelling); and (3) every police source or informant agree that Mr. [REDACTED] (and the [REDACTED] brothers) were trafficking in marihuana in the eastern provinces (corroborated).
15 The Crown, quite properly, concedes that this sort of ex poste facto analysis has no place in determining whether the information to obtain contained evidence which is credible, corroborated and/or compelling. The balancing of an individual's privacy rights and the state's ability to investigate crimes requires a system of prior authorization, not one of subsequent validation (Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc.,  2 S.C.R. 145). Thus the fruits of a search can never be used, ex poste facto, to justify the search. The grounds for the search must exist before the search is carried out, and in this case, the reasonable suspicion must exist prior to the data number recorder warrant being issued. The trial judge's focus ought to have been on whether the reasonable suspicion existed before the search was carried out, not afterwards.
16 The Crown argues that even though the learned trial judge erred in law in this regard, the information before him really was credible, corroborated and compelling. The Crown invites us to step into the shoes of the trial judge and to conduct our own analysis. I would decline to do so. Both the Crown and the accused are entitled to a decision from a trial court which may be appealed on a point of law to a court of appeal.
17 In light of these errors of law regarding the data number recorder warrants the matter should be remitted to the Supreme Court for a retrial.
Sufficiency of reasons
18 On a retrial the appellant will obtain a ruling as to whether or not the information obtained by virtue of the two data number recorders should be excised from the Part Six wiretap authorization and whether or not that impacts the admission of the evidence obtained by way of the wiretap authorization. Therefore, it is unnecessary to deal with this issue.
19 Nonetheless I would say that the trial judge began his decision at P1 by stating:
This decision follows a hearing on March 16 and 17, 2016 of an application by the defendant [REDACTED] (Mr. [REDACTED]) to excise evidence obtained by two dial number recorder warrants: DNR 2 and DNR 3 ...
20 In fact there were three applications, the two data number recorders and the Part Six application. This is not really a case of insufficiency of reasons; it is a case of no reasons at all.
21 The Crown argues that no reasons are necessary. They argue that it follows naturally that once the trial judge admitted the evidence from the two data number recorders the defence application concerning the wiretap application would necessarily fail. In my view the application having been made it was incumbent upon the trial judge to deal with the issue however briefly.
22 For these reasons, I would allow the appeal and remit the matter to the Prince Edward Island Supreme Court for retrial.
[REDACTED] C.J.P.E.I.:— I agree.
[REDACTED] J.A.:— I agree.