R. v. Baker (H.D.), (1997) 155 Sask.R. 295 (QB)

• Judge: Scheibel, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 02, 1997
• Jurisdiction: Saskatchewan
• Citations: (1997), 155 Sask.R. 295 (QB)

R. v. Baker (H.D.) (1997), 155 Sask.R. 295 (QB)

MLB headnote and full text

Temp. Cite: [1997] Sask.R. TBEd. MY.048

Her Majesty the Queen v. Harry Daniel Baker

(1996 Q.B.C. No. 4)

Indexed As: R. v. Baker (H.D.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Scheibel, J.

May 2, 1997.

Summary:

The accused was charged with fraud contrary to the Criminal Code, s. 380(1)(a). He sought to challenge the legality of two search warrants issued prior to the charge and the admissibility of the evidence obtained resulting from the execution of the warrants.

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

Civil Rights - Topic 4310

Protection against self-incrimination - General - Purpose and scope of rule - [See Criminal Law - Topic 3092 ].

Civil Rights - Topic 4466

Protection against self-incrimination - Use of incriminating evidence in other proceedings - Other proceedings defined - [See Criminal Law - Topic 3092 ].

Criminal Law - Topic 50

General principles - Protection against self-incrimination - [See Criminal Law - Topic 3092 ].

Criminal Law - Topic 59

General principles - Protection against self-incrimination - Application of protection of Federal Evidence Act - An accused sought to challenge the legality of two search warrants issued prior to a fraud charge against him, and the admissibility of the evidence obtained resulting from the execution of the warrants - He argued, inter alia, that the averment violated his right against self-incrimination contained in the Canada Evidence Act, s. 5(2) - Particularly, the warrants were based on testimony he gave at a preliminary inquiry respecting another accused - The Saskatchewan Court of Queen's Bench dismissed the application - Section 5(2) did not apply because contrary to s. 5(2), the accused failed to claim the privilege it provided prior to testifying at the inquiry - See paragraphs 17 and 18.

Criminal Law - Topic 3092

Special powers - Issue of search warrants - Civil rights limitations - Section 13 of the Charter stated that "[a] witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or the giving of contradictory evidence" - The Saskatchewan Court of Queen's Bench reviewed this section and held that an application for a search warrant did not constitute "other proceedings" as contemplated in s. 13 - See paragraphs 17 and 19 to 24.

Criminal Law - Topic 3095

Special powers - Issue of search warrants - Conditions precedent - [See Crim­inal Law - Topic 3096 ].

Criminal Law - Topic 3096

Special powers - Issue of search warrants - Duty of judge respecting - The Saskatchewan Court of Queen's Bench, stated that in "reaching a determination as to whether a search warrant was validly issued pursuant to s. 487(1) of the Criminal Code, a reviewing court must assess the sufficiency of the Information underlying the impugned warrant and determine whether on this Information, the justice could have had reasonable grounds to issue the warrant ..." - The court further noted that in determining the sufficiency of the Information, it must "first determine whether any of the evidence forming the Information must be excised because it was improperly obtained. Once the impugned evidence, if any, is excised from the Information, the court must scrutinize what remains in order to determine whether the Information is sufficient to uphold the search warrant." - See paragraphs 11 and 12.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Criminal Law - Topic 3096 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The Saskatchewan Court of Queen's Bench stated that a "deponent is entitled to include hearsay in an Informa­tion. It is often the nature of investigations that there are several peace officers re­ceiving information from a variety of sources. The suggestion that not only must the deponent aver to his belief in the truth of the Information but he must also aver to his source's belief in the Information is impractical and would add nothing to the reliability of the Information" - See para­graph 47.

Criminal Law - Topic 3107

Special powers - Issue of search warrants - Procedure - [See Criminal Law - Topic 3096 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suf­ficiency of form and content - An accused was charged with fraud contrary to the Criminal Code, s. 380(1)(a) - He sought to challenge the legality of two search warrants issued prior to the charge and the admissibility of the evidence obtained resulting from the execution of the warrants - At issue was, inter alia, whether there was sufficient evidence before the justice upon which he could have determined that the Information was reliable and therefore capable of providing reasonable and probable grounds for the search warrant - The Saskatchewan Court of Queen's Bench reviewed the evidence and dismissed the application - See paragraphs 41 to 49.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suf­ficiency of form and content - An accused was charged with fraud contrary to the Criminal Code, s. 380(1)(a) - He sought to challenge the legality of two search warrants issued prior to the charge and the admissibility of the evidence obtained resulting from the execution of the warrants - He argued, inter alia, that the justice issuing the warrant did not act judicially where he approved the warrants prior to them being sworn - The Saskatchewan Court of Queen's Bench dismissed the application - Although the Informations were put to the justice in an unsworn form, there were no subsequent changes suggested or made - The Information was then sworn - "Therefore, the ultimate order was made based upon the sworn and unchanged Information. Therefore, I conclude that the justices acted judicially in issuing the search war­rants" - See paragraphs 41 to 49.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suf­ficiency form and content - [See second Criminal Law - Topic 3097 ].

Evidence - Topic 4322

Witnesses - Privilege - Self-incriminating facts - Extent of the privilege - [See Criminal Law - Topic 59 ].

Words and Phrases

Other proceedings - The Saskatchewan Court of Queen's Bench discussed the meaning of this phrase as used in s. 13 of the Canadian Charter of Rights and Free­doms, 1982 - See paragraphs 17 and 19 to 24.

Cases Noticed:

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, refd to. [para. 10].

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. 11].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 12].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 12].

R. v. Marcoux, [1976] 1 S.C.R. 763; 4 N.R. 64; 29 C.R.N.S. 211, refd to. [para. 17].

Knutson v. Saskatchewan Registered Nur­ses' Association (1990), 90 Sask.R. 120 (C.A.), refd to. [para. 21].

R. v. Kuldip, [1990] 3 S.C.R. 618; 114 N.R. 284; 43 O.A.C. 340; 61 C.C.C.(3d) 385, refd to. [para. 21].

Donald v. Law Society of British Colum­bia, [1984] 2 W.W.R. 46 (B.C.C.A.), refd to. [para. 21].

R. v. Tarafa et al. (1989), 53 C.C.C.(3d) 472 (Que. S.C.), refd to. [para. 21].

R. v. Lucas (J.D.) et al. (1995), 129 Sask.R. 141; 97 C.C.C.(3d) 89 (Q.B.), refd to. [para. 21].

R. v. Jamieson (1989), 90 N.S.R.(2d) 164; 230 A.P.R. 164; 48 C.C.C.(3d) 287 (C.A.), refd to. [para. 32].

Royal American Shows Inc. v. R., [1975] 6 W.W.R. 571 (Alta. T.D.), dist. [para. 42].

R. v. Wurm, Wurm and Davidson (1979), 24 A.R. 380 (T.D.), refd to. [para. 42].

R. v. Pastro (1988), 66 Sask.R. 241; 42 C.C.C.(3d) 485 (C.A.), refd to. [para. 50].

R. v. Christianson (1986), 47 Sask.R. 143 (Q.B.), refd to. [para. 50].

R. v. Resch, [1995] 28 W.C.B.(2d) 240 (B.C. Prov. Ct.), refd to. [para. 54].

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. 57].

R. v. Gray (L.M.) (1993), 85 Man.R.(2d) 211; 41 W.A.C. 211; 22 C.R.(4th) 114 (C.A.), dist. [para. 60].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259; 19 C.C.C.(2d) 129, refd to. [para. 65].

Statutes Noticed:

Canada Evidence Act - see Evidence Act.

Canadian Charter of Rights and Freedoms, 1982, sect. 13 [para. 19].

Criminal Code, R.S.C. 1985, c. C-46, sect. 487(1) [para. 62].

Evidence Act, R.S.C. 1985, c. C-5, sect. 5(2) [para. 17].

Counsel:

G.G. Mitchell and S.H. Pratchler, for Her Majesty the Queen;

W.R. Donlevy, for Harry Daniel Baker.

This application was heard before Scheibel, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on May 2, 1997.