R. v. Anderson (D.), (2010) 500 A.R. 173 (QB)

• Judge: Bast, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 30, 2009
• Citations: (2010), 500 A.R. 173 (QB);2010 ABQB 263

R. v. Anderson (D.) (2010), 500 A.R. 173 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AP.164

Her Majesty the Queen (Crown) v. Denzil Anderson (accused)

(070199633Q1; 2010 ABQB 263)

Indexed As: R. v. Anderson (D.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Bast, J.

April 15, 2010.

Summary:

The accused was charged with drug, property and firearm offences. He filed a Charter notice seeking a s. 24(2) exclusion of evidence seized under the authority of a search warrant issued by a Provincial Court judge. The accused asserted that the warrant was invalid and, as a result, the evidence seized during the warrantless search violated the accused's s. 8 Charter right to be free of unreasonable search and seizure.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - Detective Hatchette attended at a Provincial Court judges' chambers, for the purpose of obtaining a warrant to search a residential premises under s.11 of the Controlled Drugs and Substances Act (CDSA) - Hatchette left a manilla envelope which contained one copy of each of the following documents: his unsworn Information to Obtain Search Warrant (ITO), a draft Search Warrant and a draft Sealing Order - Hatchette later received a phone call asking him to return to the courthouse - A Provincial Court judge asked Hatchette to pick up the Bible and swear to the contents of the ITO, if they were true - Hatchette swore to the contents of the ITO and signed it, after which the Provincial Court judge commissioned the ITO and then signed the Search Warrant and Sealing Order - The ITO Hatchette swore and the Search Warrant and Sealing Order that the judge signed were the same documents Hatchette had left in the manilla envelope at reception, and they were in the same condition with no changes having been made to them - The meeting was very brief, taking no more than 2 minutes - The accused was charged with drug, property and firearm offences - He filed a Charter notice seeking a s. 24(2) exclusion of evidence seized under the authority of the search warrant - The accused asserted that the warrant was invalid and, as a result, the evidence seized during the warrantless search violated his s. 8 Charter right to be free of unreasonable search and seizure - The accused submitted that it was not possible for the Provincial Court judge to read and review the contents of the ITO between the time it was sworn before her and when she issued the warrant, and as such it could be found that the judge failed to act judicially in the issuance of the warrant - The Alberta Court of Queen's Bench dismissed the application - The judge had to be presumed to have acted judicially in issuing the search warrant, and the search warrant was properly granted in accordance with s. 11 of the CDSA.

Narcotic Control - Topic 2028

Search and seizure - Search warrants - Issuance of - [See Civil Rights - Topic 1604 ].

Cases Noticed:

R. v. Larson (K.S.) et al. (1997), 205 A.R. 344 (Prov. Ct.), dist. [para. 10].

R. v. Gordon (E.W.T.) (1999), 138 Man.R.(2d) 298; 202 W.A.C. 298; 139 C.C.C.(3d) 239 (C.A.), consd. [para. 12].

R. v. Chan (A.H.) et al. (2001), 297 A.R. 277; 2001 ABQB 834, consd. [para. 15].

R. v. Baker (H.D.), [1997] 7 W.W.R. 713, 155 Sask.R. 295 (Q.B.), consd. [para. 16].

R. v. Gray (L.M.) (1993), 85 Man.R.(2d) 211; 41 W.A.C. 211 (C.A.), dist. [para. 16].

Counsel:

L. Proulx, for the Crown;

P. Fagan, Q.C., for the accused.

This application was heard on November 30, 2009, and April 15, 2010, by Bast, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of oral decision on April 15, 2010.