An undercover officer with a Calgary police street team was working a bar on 17th Avenue SW which is designated as a high intensity drug trafficking area. Cst P asked M if he knew where she could “get any soft”. M gave her D’s number. The constable called but there was no answer. She then sent a text: “Hi..it’s Kait. Met your friend M. Can you hook me up?” There was no reply. The constable spoke to M again asking where his friend was. M said he’d get in touch with him but she never saw M again. Cst. P called the number again. A male answered. Cst P said: “I got your number from M.” The male said his name was D. Cst P asked “if he was free to meet” and D said in about an hour. They later met at a strip mall where D sold 2.3 grams of cocaine to the undercover officer for $200. D was arrested a week later and charged with drug trafficking and possession of proceeds of crime. A court date is pending.
Mr Rice has been retained by one of twelve defendants who were arrested following an investigation by the Alberta Law Enforcement Response Team (ALERT) and Calgary police. The police executed seven search warrants that resulted in the seizure of cocaine, fentanyl, methamphetamine and heroin valued at $5M. The investigation also consisted of a wiretap component that targeted specific suspects in the investigation. A total of 66 charges were laid including conspiracy, drug trafficking and organized crime offences. The police also seized property including luxury automobiles that is the subject of civil forfeiture proceedings. The police allege that a high level group was operating a sophisticated drug network throughout Calgary and other locations in Alberta. Investigators were quoted in the media as stating that the defendants include manufacturers, suppliers and street level traffickers. A trial date has been set for 2017 in the Court of Queen’s Bench of Alberta in Calgary.
During this trial on charges of conspiracy and drug trafficking the Crown Attorney called an RCMP officer to testify about conversations he had with the defendant when he was arrested on two occasions. The police officer had worked in the wire room during the wiretap investigation. The voice identification evidence was obtained during the arrests and subsequent detentions. Additional voice identification evidence was to be called from a detective with the Vancouver Police Department who was present when the defendant was interviewed as a victim in an unrelated assault two years previously. Mr Rice objected to the evidence gathered during the arrests because it was obtained in breach of his client’s right to counsel under s 10(b) of the Charter of Rights. He also objected to the testimony of the Vancouver detective because that evidence was disclosed during the trial in breach of his client’s disclosure rights under s 7 of the Charter. The trial judge agreed and the voice identification evidence was excluded from the trial.
In this complex conspiracy and drug trafficking case Mr Rice successfully argued that the police could not lawfully seize text messages from a cell phone provider by using a production order under s 487.012 of the Criminal Code. The trial judge ruled that a wiretap authorization was required. The trial judge also ruled on a subsequent motion that the police could not seize data from a smartphone under the doctrine of search incidental to arrest. The police may seize a smartphone incidental to arrest but they are required to get a search warrant in order to search the contents. Mr Rice has written about these important new developments in the law on his Blog: On The Wire.
In this wiretap case the defendants were charged with conspiracy, drug trafficking and a criminal organization offence. At the conclusion of the investigation the RCMP obtained arrest warrants and the defendants were arrested at their residences. The police did not have search warrants for the defendants’ homes nor prior judicial authorization to enter the homes to carry out the arrests. Such a warrant is called a “Feeney warrant”. The police entered the residence of Mr Rice’s client during the arrest and seized evidence from the house. Mr Rice brought a pretrial motion to exclude the evidence from the trial because the police were not authorized to enter his client’s house in breach of his reasonable expectation of privacy under ss 8 and 24(2) of the Charter of Rights. The trial judge granted the motion and the evidence was excluded from the trial.