R. v. Balla (B.J.), (2014) 583 A.R. 79 (QB)

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 07, 2014
• Citations: (2014), 583 A.R. 79 (QB);2014 ABQB 127

R. v. Balla (B.J.) (2014), 583 A.R. 79 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.043

Her Majesty the Queen (Crown) v. Byran James Balla (accused)

(110572195Q1; 2014 ABQB 127)

Indexed As: R. v. Balla (B.J.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Yamauchi, J.

March 7, 2014.

Summary:

The accused was charged with numerous offences involving drugs and guns. On the first day of trial, the accused applied for Charter relief, alleging that members of the Calgary Police Service breached his rights under ss. 7, 8 and 9 of the Charter either when he was arrested or in executing a search warrant at his residence.

The Alberta Court of Queen's Bench dismissed the accused's application. There was no breach of the accused's Charter rights.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - The police suspected that the accused was involved in a dial-a-dope operation - When the police approached the accused he appeared to put drugs in his mouth - A police officer took him down put him in a choke hold and placed his hands on his throat to stop him from swallowing what appeared to be drugs (i.e., the evidence) - The accused alleged that the officer breached his rights under ss. 7 and 8 of the Charter by putting him in the choke hold - The Alberta Court of Queen's Bench found that the officer had reasonable grounds to believe that the accused placed contraband in his mouth and that a "throat hold" in this case would not be unreasonable - There was no breach of s. 7 or s. 8 - See paragraphs 101 to 107.

Civil Rights - Topic 1410.3

Security of the person - Law enforcement - Excessive force - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See first Civil Rights - Topic 1524 ].

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cellphones or digital cameras) - The police obtained a warrant (Controlled Drugs and Substances Act (CDSA)) to search the accused's residence, including "electronic communication devices, and documents ..." - Digital cameras were not mentioned - However, while searching the residence, a police officer seized a digital camera and copied the photographs - The accused alleged a s. 8 Charter breach - The Alberta Court of Queen's Bench held that the accused had a lower expectation of privacy in a "pure" digital camera than in a computer or smartphone - Here, the contents fell within the description of "documents" in the warrant - Furthermore, s. 11(6) of the CDSA authorized the search and seizure - Section 8 was not breached - Even if it was, the court would not have excluded the evidence under s. 24(2) - See paragraphs 108 to 142.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cellphones or digital cameras) - [See second Narcotic Control - Topic 2024 and Narcotic Control - Topic 2027 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See first Civil Rights - Topic 1524 , second Narcotic Control - Topic 2024 and Narcotic Control - Topic 2027 ].

Civil Rights - Topic 1657.1

Property - Search and seizure - Search with warrant - Motor vehicles - [See second Narcotic Control - Topic 2024 and Narcotic Control - Topic 2027 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The police suspected that the accused was involved in a dial-a-dope operation and obtained a warrant to search his residence - Prior to the police executing the warrant, the accused drove from his residence to another location - Not wanting him to return to the residence during the search, the police followed him - When the accused stopped, the police approached the accused and he appeared to put drugs in his mouth - The police took him down and arrested him - He claimed that he was arbitrarily detained contrary to s. 9 of the Charter - The Alberta Court of Queen's Bench opined neither his initial detention or his detention following the arrest was arbitrary - See paragraphs 99 and 100.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 1524 ].

Criminal Law - Topic 3051

Special powers - Search warrants - Validity of - Narcotic control - [See Narcotic Control - Topic 2027 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - [See first and second Narcotic Control - Topic 2024 ].

Criminal Law - Topic 3193

Special powers - Setting aside search warrants - Grounds - Failure to file report to a justice respecting search - [See Narcotic Control - Topic 2027 ].

Narcotic Control - Topic 2024

Search and seizure - Search warrants - Execution - The police suspected that the accused was involved in a dial-a-dope operation and obtained a warrant to search "A 2002 Mercedes Benz with VIN# WDBRF65J32F267335, bearing Alberta license plate BCS1881. Located at 1010 26 Avenue Southeast, Calgary Alberta (Calgary Police Service Identification Lot)" - The police seized the vehicle at another location, but searched it at the Identification Lot - The accused argued that the police did not seize the vehicle at the "place" described in the warrant - The Alberta Court of Queen's Bench rejected the accused's argument - The "place" was the "2002 Mercedes Benz with VIN# WDBRF65J32F267335, bearing Alberta license plate BCS1881" - The most precise aspect of the description was the VIN - The inclusion of the Identification Lot was superfluous - See paragraphs 76 to 89.

Narcotic Control - Topic 2024

Search and seizure - Search warrants - Execution - The police suspected that the accused was involved in a dial-a-dope operation and obtained a warrant to search the accused's vehicle at a police identification lot - The accused argued that the officer did not have the warrant in his possession when he seized the vehicle or when he began his search contrary to s. 29(1) of the Criminal Code thereby violating his rights under s. 8 of the Charter - The Alberta Court of Queen's Bench stated that depending on the circumstances, the failure of the police to have the search warrant in their possession could be a breach of s. 29(1), however, the failure to do so did not ipso facto create a Charter, s. 8 breach - The court found that in this case, the officer did in fact have a copy of the warrant before he began his searches - The accused's argument was unsustainable - See paragraphs 90 to 97.

Narcotic Control - Topic 2024

Search and seizure - Search warrants - Execution - [See first Civil Rights - Topic 1524 ].

Narcotic Control - Topic 2027

Search and seizure - Search warrants - Form and contents - The police suspected that the accused was involved in a dial-a-dope operation and obtained search warrants under the Controlled Drugs and Substances Act (CDSA) - The accused claimed that the warrants were facially defective in that they did not provide for a return to justice, thus any search thereunder was warrantless and breached his s. 8 Charter rights - The Alberta Court of Queen's Bench held that the warrants were not facially defective - Form 5 did not require that there be any statement on the face of the warrant concerning a return to the justice who issued it - In any event, the officers complied with their statutory obligations under the CDSA and Criminal Code by providing a report to the justice (Form 5.2) - See paragraphs 64 to 75.

Cases Noticed:

Goguen et al. v. Shannon and Murphy (1989), 97 N.B.R.(2d) 44; 245 A.P.R. 44; 50 C.C.C.(3d) 45 (C.A.), dist. [para. 70].

Canada (Attorney General) v. Goguen - see Goguen et al. v. Shannon and Murphy.

R. v. Keifer, [1990] O.J. No. 2126 (C.J.), dist. [para. 70].

R. v. Villaroman (O.O.) (2012), 557 A.R. 1; 2012 ABQB 630, dist. [para. 73].

McAvoy, Re (1970), 74 W.W.R.(N.S.) 688; 12 C.R.N.S. 56 (N.W.T. Terr. Ct.), refd to. [para. 81].

R. v. Latour (H.), [2013] Northwest Terr. Cases Uned. 15; 2013 NWTSC 15, refd to. [para. 82].

R. v. Charles, 2010 QCCQ 9178, refd to. [para. 84].

R. v. Floyd (2012), 263 C.R.R.(2d) 122 (Ont. C.J.), refd to. [para. 85].

R. v. Osmond (T.R.) (2010), 296 Nfld. & P.E.I.R. 350; 915 A.P.R. 350; 2010 NLTD 79, refd to. [para. 86].

R. v. Cormier (D.A.) (2013), 402 N.B.R.(2d) 25; 1044 A.P.R. 25; 2013 NBQB 91, refd to. [para. 91].

R. v. Bohn (J.A.) (2000), 136 B.C.A.C. 263; 222 W.A.C. 263; 145 C.C.C.(3d) 320; 2000 BCCA 239, refd to. [para. 91].

R. v. Patrick (R.S.) (2007), 417 A.R. 276; 410 W.A.C. 276; 2007 ABCA 308, affd. [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 242 C.C.C.(3d) 158; 2009 SCC 17, refd to. [para. 92].

R. v. Davidoff (A.) (2013), 560 A.R. 252; 2013 ABQB 244, refd to. [para. 96].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 104].

R. v. Garcia-Guiterrez (1990), 65 C.C.C.(3d) 15; 5 C.R.(4th) 1 (B.C.C.A.), refd to. [para. 105].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 111].

R. v. Morelli - see R. v. U.P.M.

R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 111].

R. v. Cole (R.), [2012] 3 S.C.R. 34; 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 111].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 114].

R. v. Caron (D.W.) (2011), 299 B.C.A.C. 217; 508 W.A.C. 217; 269 C.C.C.(3d) 15; 2011 BCCA 56, dist. [para. 115].

R. v. Brown (K.), [2014] B.C.T.C. Uned. 112; 2014 BCSC 112, refd to. [para. 118].

R. v. Sloat (K.M.) (2014), 579 A.R. 39; 2013 ABQB 476, dist. [para. 120].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 123].

R. v. Rafferty, 2012 ONSC 703, refd to. [para. 124].

R. v. Vu (T.L.) (2011), 315 B.C.A.C. 36; 535 W.A.C. 36; 2011 BCCA 536, refd to. [para. 125].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 128].

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. 128].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 136].

R. v. Simpenzwe (P.N.) (2009), 512 A.R. 49; 2009 ABQB 579, refd to. [para. 137].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8, sect. 9 [para. 2]; sect. 24(2) [para. 134].

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11(1), sect. 11(5), sect. 11(6), sect. 11(7), sect. 11(8), sect. 13(1), sect. 13(2), sect. 13(3), sect. 13(4), sect. 13(5), sect. 13(6) [para. 65].

Criminal Code, R.S.C. 1985, c. C-46, sect. 29(1) [para. 90].

Counsel:

Max Kruger (Public Prosecution Service of Canada), for the Crown;

Richard Cairns, Q.C., for the accused.

This voir dire was held from February 3 to 6, 2014, before Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on March 7, 2014.