R. v. Blizzard (A.J.) et al., 2005 NBQB 402

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 07, 2005
• Jurisdiction: New Brunswick
• Citations: 2005 NBQB 402;(2005), 296 N.B.R.(2d) 202 (TD)

R. v. Blizzard (A.J.) (2005), 296 N.B.R.(2d) 202 (TD);

    296 R.N.-B.(2e) 202; 769 A.P.R. 202

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] N.B.R.(2d) TBEd. JA.040

Her Majesty the Queen v. Angus Jason Blizzard, John Adam Young, Shane Timothy Voeller, Dwayne Noel Ireland

(S/CR/20/03; 2005 NBQB 402)

Indexed As: R. v. Blizzard (A.J.) et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

October 7, 2005.

Summary:

The accused were charged with conspiring to traffic in a controlled substance. The accused sought a stay of proceedings on the basis that the conduct of the police and the judges who issued various search warrants constituted an abuse of process under s. 7 of the Charter. The accused argued that the police displayed a blatant disregard for the rule of law relative to the warrant issuing process. They also argued that there was an existence of bias or a reasonable apprehen­sion of bias on the part of the judges who issued the warrants where the wording in many of the warrants made it appear that the issuing judges were an integral part of the investigative team.

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

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - Four accused were charged with conspiring to traffic in a controlled substance - The accused sought a stay of proceedings on the basis that the conduct of the police and the judges who issued various search war­rants constituted an abuse of process under s. 7 of the Charter - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application - While there was a pattern of negligence, the mistakes were not so egregious that they constituted an abuse of process - Even if an abuse of process had been found, this was not a case where a stay of proceedings would be ordered - See paragraphs 80 to 90.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3157.4 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reason­able apprehension of bias - Four accused were charged with conspiring to traffic in a controlled substance - The accused ar­gued that there was an existence of bias or a reasonable apprehension of bias on the part of the judges who issued search war­rants in this case where the wording in many of the warrants made it appear that the issuing judges were an integral part of the investigative team - The constable who drafted the documentation to obtain the warrants explained that the assailed word­ing ended up in the search warrants be­cause of "cutting and pasting" in the draft­ing process - The New Brunswick Court of Queen's Bench, Trial Division, held that a well-informed, right-minded individual who was aware of all the circumstances in this case, including the explanation as to how the drafting mistakes occurred, would not hold an apprehension of bias with respect to the issuance of the search war­rants and would not conclude that the issuing judges were an integral part of the investigative team - See paragraph 66.

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 3052

Special powers - Search warrants - Effect of defects - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 3107

Special powers - Issue of search warrants - Procedure - The New Brunswick Court of Queen's Bench, Trial Division, stated that if an issuing judge had questions with respect to the documentation provided with a search warrant application, such ques­tions could be posed in the form of a written memorandum so that no one could accuse the issuing judge of assisting the applicant for the warrant - See paragraph 58.

Cases Noticed:

R. v. Blizzard (A.J.) et al. (2001), 234 N.B.R.(2d) 59; 604 A.P.R. 59; 2001 CarswellNB 26 (T.D.), refd to. [para. 42].

R. v. Blizzard (A.J.) et al. (2002), 247 N.B.R.(2d) 203; 641 A.P.R. 203; 2002 CarswellNB 52 (C.A.), refd to. [para. 42].

R. v. Blizzard (A.J.) et al. (2003), 268 N.B.R.(2d) 11; 704 A.P.R. 11; 2003 CarswellNB 576 (T.D.), refd to. [para. 42].

R. v. Lachance, [1990] 2 S.C.R. 1490; 116 N.R. 325; 43 O.A.C. 241; 36 Q.A.C. 243, consd. [para. 49].

In The Matter Of an Application for a General Warrant pursuant to s. 487.01 of the Criminal Code filed January 21, 2002; And In The Matter Of Alleged Offences contrary to ss. 253(a) and 253(b) of the Criminal Code, 2002 Sask. D. Crim. J. 409; 2002 Sask. D. Crim. J. LEXIS 10 (Prov. Ct.), consd. [para. 52].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 CarswellBC 2440, consd. [para. 56].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 60].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97, refd to. [para. 61].

MacIntyre v. Nova Scotia (Attorney Gen­eral), Grainger and Canada (Attorney General) et al., [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, refd to. [para. 61].

R. v. Baylis (1988), 66 Sask.R. 268; 43 C.C.C.(3d) 514 (C.A.), refd to. [para. 62].

Committee for Justice and Liberty Founda­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 62].

R. v. Pilarinos (D.) et al., [2001] B.C.T.C. 1690 (S.C.), refd to. [para. 64].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, consd. [para. 67].

R. v. J.G.B. (2001), 139 O.A.C. 341 (C.A.), consd. [para. 70].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1; 1997 CarswellNS 88, consd. [para. 73].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 CarswellQue 2765, consd. [para. 75].

R. v. Leduc (J.) (2003), 174 O.A.C. 242; 176 C.C.C.(3d) 321 (C.A.), consd. [para. 78].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 78].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 78].

Counsel:

Gerald H. McCracken, Q.C., and Roland V. Levesque, on behalf of the Crown;

Hazen L. Brien, on behalf of Angus Jason Blizzard;

William H. Watts, on behalf of John Adam Young;

Patrick C. Fagan, on behalf of Shane Tim­othy Voeller;

John M. Henderson, on behalf of Dwayne Noel Ireland.

This application was heard on September 12, 13, 28 and 29, and October 3-5 and 7, 2005, before Glennie, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Saint John, who delivered the following oral decision on October 7, 2005.