R. v. Baylis, (1988) 66 Sask.R. 268 (CA)

• Judge: Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 30, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 66 Sask.R. 268 (CA)

R. v. Baylis (1988), 66 Sask.R. 268 (CA)

MLB headnote and full text

Her Majesty the Queen (respondent) v. Glenn Stuart Baylis (appellant)

(Nos. 2413 and 2439)

Indexed As: R. v. Baylis

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A.

June 30, 1988.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act and possession of cannabis resin contrary to s. 3(1). At trial he argued that the search was unreasonable and contrary to s. 8 of the Charter because the justice of the peace who issued the search warrant was not neutral and impartial as required by s. 10(2) of the Narcotic Control Act.

The Saskatchewan Court of Queen's Bench rejected the accused's argument and entered convictions (See 47 Sask.R. 15). The accused appealed.

The Saskatchewan Court of Appeal, Bayda, C.J.S., dissenting, allowed the appeal and acquitted the accused. The court held that the search warrant was invalid, because it was not issued by an impartial justice as required by s. 10(2) of the Narcotic Control Act. The court also held that the search and seizure was illegal and unreasonable and contrary to s. 8 of the Charter. The court held further that the drugs seized and the search warrant should be excluded from evidence under s. 24 (2) of the Charter. Bayda, C.J.S., would have dismissed the appeal. He agreed that the justice who issued the warrant was disqualified by reason of apprehended bias and that the warrant was a nullity. He would, however, have admitted the evidence, notwithstanding s. 24(2) of the Charter.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The police obtained a search warrant from a justice of the peace under the Narcotic Control Act - The police searched a dwelling-house under the warrant and seized evidence relating to drug offences - The Saskatchewan Court of Appeal held that the warrant was invalid because it was not issued by an impartial justice as required by s. 10(2) of the Narcotic Control Act - The court held further that the search pursuant to this invalid warrant was both illegal and unreasonable within the meaning of s. 8 of the Charter - See paragraphs 6, 55 to 59.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Saskatchewan Court of Appeal discussed generally the exclusion of evidence under s. 24(2) of the Charter - The court set out factors to be considered in determining when evidence should be excluded - See paragraphs 60 to 78.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Remedies - Exclusion of evidence - The police obtained a search warrant from a justice of the peace under the Narcotic Control Act - The police searched a dwelling-house under the warrant and seized evidence relating to drug offences - The Saskatchewan Court of Appeal held that the warrant was invalid because the justice who issued it was not impartial - The court, therefore, held that the search was both illegal and unreasonable and contrary to s. 8 of the Charter - The court held also that the drugs seized and the search warrant should be excluded from evidence under s. 24(2) of the Charter, because admission would bring the administration of justice into disrepute - The court noted, inter alia, that in this case the warrant was obtained as a result of a deliberate course of conduct by the police and the Charter violation was blatant, deliberate and not trivial - See paragraphs 60 to 93.

Courts - Topic 306

Judges - Independence of judiciary - General - [See first Narcotic Control - Topic 2045 below].

Narcotic Control - Topic 2045

Search and seizure - Search warrants - Setting aside - Grounds - Impartiality of issuing justice - The Saskatchewan Court of Appeal discussed the test to determine whether bias or reasonable apprehension of bias exists such as to make the decision of a judicial officer not neutral or impartial within the meaning of s. 10(2) of the Narcotic Control Act - See paragraphs 34 to 48.

Narcotic Control - Topic 2045

Search and seizure - Search warrants - Setting aside - Grounds - Impartiality of issuing justice - A justice of the peace was a member of the corps of commissionaires for southern Saskatchewan - She worked at the Regina Airport and was appointed a constable under the Transport Canada Regulations with power to issue traffic tickets - As a commissionaire she reported to the special R.C.M.P. officer in charge of the airport and was in daily contact with the R.C.M.P. - Acting in her capacity as justice of the peace at her home, she issued a search warrant under the Narcotic Control Act to enable the R.C.M.P. to search a dwelling house - The Saskatchewan Court of Appeal held that her close contact with the R.C.M.P. created a reasonable apprehension of bias such that a reasonable person would believe that there was a real danger of partiality, even though unintended - The court held, therefore, that the warrant was not issued by an impartial judge as required by the Narcotic Control Act and was therefore invalid - See paragraphs 25 to 54.

Narcotic Control - Topic 2045

Search and seizure - Search warrants - Setting aside - Grounds - Impartiality of issuing justice - [See second Civil Rights - Topic 8368 above].

Cases Noticed:

R. v. Pastro (1988), 66 Sask.R. 241, consd. [paras. 7, 10, 12, 18].

Volhoffer v. Volhoffer, [1925] 2 W.W.R. 304, refd to. [para. 7].

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193, consd. [paras. 8, 10, 21, 61, 65, 67, 74].

R. v. Hamill, [1987] 1 S.C.R. 301; 75 N.R. 149; 56 C.R.(3d) 220; [1987] 3 W.W.R. 726; 33 C.C.C.(3d) 110; 38 D.L.R.(4th) 611, consd. [paras. 8, 14, 86, 88].

R. v. Sieben, [1987] 1 S.C.R. 295; 74 N.R. 271; 56 C.R.(3d) 225; [1987] 3 W.W.R. 722; 32 C.C.C.(3d) 574; 38 D.L.R.(4th) 427, refd to. [paras. 8, 14].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; [1984] 6 W.W.R. 577; 37 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; 41 C.R.(3d) 97; 14 C.C.C.(3d) 97, appld. [paras. 36, 45, 56, 58, 79].

Attorney General of Nova Scotia et al. v. MacIntyre, [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609; 65 C.C.C.(2d) 129; 132 D.L.R.(3d) 385, refd to. [para. 37].

Frome United Breweries Co. Ltd. et al. v. Bath Justices, [1926] A.C. 586, refd to. [para. 38].

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, consd. [paras. 39, 47, 48].

Johnson v. United States of America (1948), 333 U.S. 10, consd. [para. 42].

Coolidge v. New Hampshire (1971), 403 U.S. 443, consd. [para. 43].

Shadwick v. City of Tampa (1972), 407 U.S. 345, consd. [para. 44].

R. v. Sussex Justices Ex parte McCarthy, [1924] 1 K.B. 256, refd to. [para. 47].

R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 18 C.C.C.(3d) 481; 18 D.L.R.(4th) 655; 45 C.R.(3d) 97; [1985] 4 W.W.R. 286; consd. [paras. 61, 63, 67, 71].

R. v. Laplante (1987), 59 Sask.R. 251 (Sask. C.A.), refd to. [para. 63].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198, 21 O.A.C. 192; 58 C.R.(3d) 97; 34 C.C.C.(3d) 385, refd to. [para. 63].

R. v. McAvena, [1987] 4 W.W.R. 15; 55 Sask.R. 161, refd to. [para. 66].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 67].

R. v. Genest (1986), 4 Q.A.C. 261; 54 C.R.(3d) 246 (Que. C.A.), refd to. [para. 69].

R. v. Lajoie (1983), 8 C.C.C.(3d) 353; 4 D.L.R.(4th) 491 (N.W.T.S.C.), refd to. [para. 91].

Bergeron et al. v. Deschamps et al., [1978] 1 S.C.R. 243; 14 N.R. 83, appld. [para. 94].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2).

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 3(1), sect. 3(4), sect. 4(2), sect. 10(2).

United States Constitution, Fourth Amendment [para. 41].

Authors and Works Noticed:

Gibson, The Law of the Charter: General Principles (1986), p. 261 [para. 78].

Morissette, Yves-Marie, The Exclusion of Evidence Under the Canadian Charter of Rights and Freedoms: What To Do and What Not To Do (1984), 29 McGill L.J. 521, p. 538 [para. 72].

Counsel:

R. Bradley Hunter, for the appellant;

H.H. Dahlem, for Federal Justice;

Gale Welsh, for Saskatchewan Justice.

This appeal was heard before Bayda, C.J.S., Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered on June 30, 1988, including the following opinions:

Bayda, C.J.S., dissenting - See paragraphs 1 to 24.

Vancise, J.A. (Sherstobitoff, J.A., concurring) - See paragraphs 25 to 94