R. v. Arsenault (E.J.), (2008) 330 N.B.R.(2d) 382 (TD)

JurisdictionNew Brunswick
CourtCourt of Queen's Bench of New Brunswick (Canada)
JudgeRideout, J.
Neutral Citation2008 NBQB 163
Citation(2008), 330 N.B.R.(2d) 382 (TD),2008 NBQB 163,330 NBR(2d) 382,(2008), 330 NBR(2d) 382 (TD),330 N.B.R.(2d) 382
Date16 May 2008

R. v. Arsenault (E.J.) (2008), 330 N.B.R.(2d) 382 (TD);

    330 R.N.-B.(2e) 382; 845 A.P.R. 382

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Temp. Cite: [2008] N.B.R.(2d) TBEd. MY.015

Renvoi temp.: [2008] N.B.R.(2d) TBEd. MY.015

Edgar Joseph Arsenault (applicant) v. Her Majesty the Queen (respondent)

(M/I/16/07; 2008 NBQB 163; 2008 NBBR 163)

Indexed As: R. v. Arsenault (E.J.)

Répertorié: R. v. Arsenault (E.J.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

May 16, 2008.

Summary:

Résumé:

The accused was charged with possession of cocaine for the purpose of trafficking. He argued, inter alia, that his s. 8 Charter rights were violated because the police performed an unlawful search and seizure respecting his motor vehicle pursuant to an invalid search warrant and sought an exclusion of evidence.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - The police received information from an informant that the accused was transporting cocaine from Alberta to Prince Edward Island - They stopped the accused's vehicle in New Brunswick and arrested him - The accused and his vehicle were taken to a police detachment - The police obtained a search warrant under the Controlled Drugs and Substances Act to search the vehicle and found cocaine - The accused was charged with possession of cocaine for the purpose of trafficking - He argued, inter alia, that the search warrant was invalid because the Information to Obtain did not contain reasonable and probable grounds - The Crown conceded that confirmatory evidence obtained from the accused's cell phone after his arrest was improperly obtained and should be excised from the affidavit - The bulk of remaining information came from informants - The New Brunswick Court of Queen's Bench, Trial Division, held that the issuing judge had sufficient information before him such that he "could" have granted the warrant - The information of the two sources was compelling - The evidence supported that information received from the two sources has been credible in the past and the information seemed credible and confirmatory - As well, the information from the sources had been confirmed, in part, through independent police investigation - See paragraphs 47 to 49.

Criminal Law - Topic 3186

Special powers - Setting aside search warrants - Grounds - Warrant defective - The police received information from an informant that the accused was transporting cocaine from Alberta to Prince Edward Island - They stopped the accused's vehicle in New Brunswick and arrested him - The accused and his vehicle were taken to a police detachment - The police obtained a search warrant under the Controlled Drugs and Substances Act to search the vehicle and found cocaine - The accused was charged with possession of cocaine for the purpose of trafficking - He argued, inter alia, that the search warrant was invalid because two blanks on the warrant concerning limitations as to times and date of entry were not filled in - The New Brunswick Court of Queen's Bench, Trial Division, rejected the argument - The warrant gave the the police officer the authority to search the vehicle at any time - There were no restrictions as to time of entry or date - In the circumstances of this case, that was perfectly reasonable - The vehicle was the detachment and, presumably, was to be searched as soon as the warrant was executed - The actual wording used in the warrant mirrored the wording in s. 11 of the Controlled Drugs and Substances Act - There was no need to fill in the blanks - Alternatively, it was not a fatal defect that rendered the warrant invalid - See paragraphs 40 to 46.

Narcotic Control - Topic 2027

Search and seizure - Search warrants - Form and contents - [See Criminal Law - Topic 3186 ].

Droit criminel - Cote 3093

Pouvoirs spéciaux - Délivrance de mandats de perquisition - Motifs raisonnables - Éléments constitutifs - [Voir Criminal Law - Topic 3093 ].

Droit criminel - Cote 3186

Pouvoirs spéciaux - Annulation des mandats de perquisition - Motifs - Mandat défectueux - [Voir Criminal Law - Topic 3186 ].

Stupéfiants - Cote 2027

Fouille, perquisition et saisie - Mandats de perquisition - Forme et contenu - [Voir Narcotic Control - Topic 2027 ].

Cases Noticed:

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163; 45 C.C.C.(3d) 385, dist. [para. 30].

R. v. DeWolfe (C.L.) (2006), 243 N.S.R.(2d) 70; 792 A.P.R. 70 (Prov. Ct.), dist. [para. 30].

R. v. Hill (M.A.) (2001), 190 N.S.R.(2d) 311; 594 A.P.R. 311 (Prov. Ct.), refd to. [para. 35].

R. v. Allain (S.) (1998), 205 N.B.R.(2d) 201; 523 A.P.R. 201 (C.A.), refd to. [para. 38].

R v. MacAngus, 1994 CarswellOnt 4125 (Gen. Div.), refd to. [para. 39].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129; 45 C.R.R. 49, refd to. [para. 47].

R. v. Garofoli et al. (1990), 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 80 C.R.(3d) 317; 60 C.C.C.(3d) 161 (S.C.C.), refd to. [para. 48].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 149 C.C.C.(3d) 449, refd to. [para. 48].

Authors and Works Noticed:

Fontana, James A., and Keeshan, David, The Law of Search and Seizure in Canada (5th Ed. 2002), pp. 146, 148 [para. 36].

Counsel:

Avocats:

Paul Carver, on behalf of the Prosecution;

Hazen Brien, on behalf of Mr. Arsenault.

This motion was heard at Moncton, New Brunswick on April 15 and 16, 2008, before Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on May 16, 2008.

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2 practice notes
  • Arsenault v. R., (2009) 344 N.B.R.(2d) 113 (CA)
    • Canada
    • Court of Appeal (New Brunswick)
    • February 12, 2009
    ...search warrant and sought an exclusion of evidence. The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 330 N.B.R.(2d) 382; 845 A.P.R. 382 , dismissed the motion. The accused was convicted. The accused appealed, arguing that the trial judge erred in finding ......
  • R. v. Arsenault (E.J.),
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • July 18, 2008
    ...evidence seized following a search of Mr. Arsenault's vehicle. I found that the warrant was proper and the evidence was admissible (2008 NBQB 163). The evidence taken at the voir dire became evidence at the trial and the appropriate certificates were admitted by consent. Mr. Arsenault did n......
2 cases
  • Arsenault v. R., (2009) 344 N.B.R.(2d) 113 (CA)
    • Canada
    • Court of Appeal (New Brunswick)
    • February 12, 2009
    ...search warrant and sought an exclusion of evidence. The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 330 N.B.R.(2d) 382; 845 A.P.R. 382 , dismissed the motion. The accused was convicted. The accused appealed, arguing that the trial judge erred in finding ......
  • R. v. Arsenault (E.J.),
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • July 18, 2008
    ...evidence seized following a search of Mr. Arsenault's vehicle. I found that the warrant was proper and the evidence was admissible (2008 NBQB 163). The evidence taken at the voir dire became evidence at the trial and the appropriate certificates were admitted by consent. Mr. Arsenault did n......

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