R. v. Allain (S.)

• Jurisdiction: New Brunswick
• Judge: Ayles, Drapeau and Larlee, JJ.A.
• Citation: (1998), 205 N.B.R.(2d) 201 (CA),1998 CanLII 12250 (NB CA),205 NBR (2d) 201,[1998] NBJ No 436 (QL),523 APR 201
• Court: Court of Appeal (New Brunswick)
• Date: 17 September 1998

R. v. Allain (S.) (1998), 205 N.B.R.(2d) 201 (CA);

    205 R.N.-B.(2e) 201; 523 A.P.R. 201

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [1998] N.B.R.(2d) TBEd. NO.018

Simon Allain (appellant) v. Her Majesty The Queen (respondent)

(10/98/CA)

Indexed As: R. v. Allain (S.)

New Brunswick Court of Appeal

Ayles, Drapeau and Larlee, JJ.A.

November 3, 1998.

Summary:

The accused was convicted of production of marijuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act. The accused appealed the conviction, arguing that the trial judge erred in admitting evidence obtained upon the execution of a search warrant issued under s. 11(1) of the Act. He argued that the search warrant was not valid­ly issued because the supporting Information did not disclose reasonable grounds from which the issuing judge could be satisfied that the things to be searched for were at the residence rented by the accused.

The New Brunswick Court of Appeal dismissed the appeal.

Civil Rights - Topic 1607

Property - Search warrants - Standard for authorization - [See Narcotic Control - Topic 2028 ].

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The New Brunswick Court of Appeal stated that the proper test to be applied where the evidentiary record before the reviewing judge was not materially different from the record before the issuing judge was whether there was some evidence before the issuing judge upon which he could, acting judicially, issue the search warrant -However, that standard of review did not govern where the record which could be considered by the reviewing court was materially different from the record before the issuing judge - Where material parts of the Information had been excised, the issue was no longer whether there was some evidence upon which the issuing judge could act, but whether the warrant would have issued on the basis of the evidence which remained - See paragraphs 17 to 18.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The New Brunswick Court of Appeal stated that where the evidentiary record before the reviewing court was materially less significant than the record before the issu­ing judge, there was no longer any prin­cipled justification for deference - In such a situation, it was up to the Crown to satisfy the reviewing judge that the warrant would have issued on the basis of the remaining evidence - See paragraph 19.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The New Brunswick Court of Appeal outlined some general principles governing the review process which trial judges must undertake in cases where the adequacy of Informations and the admissibility of evi­dence obtained as a result of a search warrant is challenged - See paragraphs 9 to 14.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suffi­ciency of form and content - An accused challenged the issuance of a search warrant under the Controlled Drugs and Substances Act - The accused sought the excision of three paragraphs of the Information sworn to obtain the warrant on the ground, inter alia, that the officer who swore the Inform­ation had not sworn in explicit terms that he personally believed the information provided by anonymous tipsters - The New Brunswick Court of Appeal held that the issuing judge could take into account the totality of the Information to infer that the officer did in fact believe all of the infor­mation in his Information including the information provided by the tipsters - See paragraphs 22 and 25.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suffi­ciency of form and content - An accused convicted of production of marijuana contrary to s. 7(1) of the Controlled Drugs and Substances Act challenged the issuance of a search warrant under the Act - The accused sought the excision of two para­graphs of the Information sworn to obtain the warrant on the ground that they had no probative value because the information on electricity consumption comparisons did not take into account alternative innocent explanations for the increased use of elec­trical power - The New Brunswick Court of Appeal held that in the circumstances, there was no need for the deponent to rule out alternative explanations - Viewed in the overall context, the high level of elec­trical consumption was an indicator of the hydroponic growth of marijuana - See paragraph 33.

Criminal Law - Topic 3185

Special powers - Setting aside search warrants - Grounds - Failure to state grounds for belief - An accused challenged the issuance of a search warrant under the Controlled Drugs and Substances Act - The accused sought the excision of a para­graph of the Information sworn to obtain the warrant on the ground that the officer who swore the Information had no per­sonal knowledge that the accused resided at the residence referred to in the para­graph, it being information obtained by him from the owner of the house in ques­tion - The New Brunswick Court of Ap­peal held that it was not necessary that the officer identify his source of know­ledge since the information itself was not essen­tial - See paragraphs 29 to 31.

Criminal Law - Topic 3189

Special powers - Setting aside search warrants - Grounds - Failure to verify sources of information - An accused chal­lenged the issuance of a search warrant under the Controlled Drugs and Substances Act - The accused sought the excision of three paragraphs of the Information sworn to obtain the warrant on the ground, inter alia, that there was no evidence before the issuing judge that the anonymous sources were reliable - The New Brunswick Court of Appeal stated that issuing judges must consider the information provided by anonymous tipsters if there are other in­dicia of reliability - In this case there were such indicia of reliability: each tip was significantly detailed, both tipsters had personal knowledge of the information relayed and some aspects of the tips were confirmed by visual surveillance - See paragraphs 22 to 23.

Narcotic Control - Topic 2028

Search and seizure - Search warrants - Issuance of - Section 11(1) of the Con­trolled Drugs and Substances Act provided for the issuance of search warrants - The New Brunswick Court of Appeal stated that "s. 11(1) does not expressly require that the reasonable grounds disclosed by the information on oath be probable. How­ever, it is now settled that 'reasonableness' in this context imports a requirement of evidentiary probability. Viewed in this light, the expression 'reasonable grounds' meets the requirements of s. 8 of the Char­ter" - See paragraph 7.

Narcotic Control - Topic 2030

Search and seizure - Search warrants - Judicial review - [See all Criminal Law - Topic 3113 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Suffi­ciency of form and contents - [See both Criminal Law - Topic 3183 ].

Narcotic Control - Topic 2047

Search and seizure - Setting aside search warrants - Grounds - Failure to state grounds for belief - [See Criminal Law - Topic 3185 ].

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 7].

Baron et al. v. Minister of National Rev­enue et al., [1993] 1 S.C.R. 416; 146 N.R. 270; 78 C.C.C.(3d) 510; 18 C.R.(4th) 274, refd to. [para. 7].

R. v. MacDonald (F.D.) (1992), 128 N.B.R.(2d) 447; 332 A.P.R. 447 (C.A.), refd to. [para. 11].

Valley Equipment Ltd. v. R. (1998), 198 N.B.R.(2d) 211; 506 A.P.R. 211 (C.A.), refd to. [para. 11].

R. v. Breton (M.) (1994), 74 O.A.C. 99; 93 C.C.C.(3d) 171 (C.A.), refd to. [para. 11].

R. v. Arason (R.H.) and Derosier (G.L.) (1992), 21 B.C.A.C. 20; 37 W.A.C. 20; 78 C.C.C.(3d) 1 (C.A.), refd to. [para. 12].

R. v. Melenchuk (R.) et al. (1993), 24 B.C.A.C. 97; 40 W.A.C. 97 (C.A.), refd to. [para. 13].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97, refd to. [para. 14].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173; 24 C.R.(4th) 1, refd to. [para. 18].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 18].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 19].

R. v. Pippin (S.D.) (1994), 116 Sask.R. 275; 59 W.A.C. 275; 27 C.R.(4th) 251 (C.A.), dist. [para. 22].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 23].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; [1993] 8 W.W.R. 287; 84 C.C.C.(3d) 203, refd to. [para. 23].

R. v. Pombert (G.R.) (1994), 45 B.C.A.C. 70; 72 W.A.C. 70 (C.A.), refd to. [para. 33].

R. v. Babiak and Stefaniuk (1974), 21 C.C.C.(2d) 464 (Man. C.A.), refd to. [para. 34].

R. v. Douglas (1977), 33 C.C.C.(2d) 395 (Ont. C.A.), refd to. [para. 34].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11(1) [para. 6].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Proceed­ings and Practice in Canada (2nd Ed. 1998), p. 3-6 [para. 30].

Fontana, James A., The Law of Search and Seizure (4th Ed. 1997), p. 72 [para. 10].

Counsel:

Kevin B. McNeil, for the appellant;

Pierre F. Roussel, for the respondent.

This appeal was heard on September 17, 1998, before Ayles, Drapeau and Larlee, JJ.A., of the New Brunswick Court of Ap­peal. The following judgment of the Court of Appeal was delivered by Drapeau, J.A., on November 3, 1998.