R. v. Breakell (H.A.) et al., (2000) 190 Sask.R. 64 (ProvCt)

JudgeNightingale, P.C.J.
CourtProvincial Court of Saskatchewan (Canada)
Case DateJanuary 20, 2000
JurisdictionSaskatchewan
Citations(2000), 190 Sask.R. 64 (ProvCt)

R. v. Breakell (H.A.) (2000), 190 Sask.R. 64 (ProvCt)

MLB headnote and full text

Temp. Cite: [2000] Sask.R. TBEd. FE.022

Her Majesty The Queen, on the Information of Kevin Inimasu, a Peace Officer and member of the Royal Canadian Mounted Police v. Harry A. Breakell and Annette A. Herman

Indexed As: R. v. Breakell (H.A.) et al.

Saskatchewan Provincial Court

Laloche

Nightingale, P.C.J.

January 20, 2000.

Summary:

The accused were charged with possession of cannabis marijuana. At issue was the admissibility of evidence obtained by police in executing a search warrant. The accused submitted that they were subjected to an unreasonable search and seizure contrary to s. 8 of the Charter and that the evidence should be excluded under s. 24(2).

The Saskatchewan Provincial Court ruled that the accused's s. 8 Charter rights were violated, but that the evidence was admis­sible.

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure defined - A justice of the peace was initially unsat­isfied with the information in support of a search warrant based on concerns with the reliability of the informants - The justice asked the officer "qualifying questions" aimed at what steps the officer took to satisfy himself as to the reliability of the informants - Based on the officer's answers, the justice was satisfied and issued the warrant - The Saskatchewan Provincial Court held that the warrant was invalid and a subsequent search constituted an unreasonable search and seizure (Char­ter, s. 8) - The court stated that where a justice was not satisfied to issue a warrant based on the furnished information the appropriate procedure was to refuse to issue a warrant or, at a minimum, send the officer away to augment his information and return with a fresh application - See paragraphs 17 to 21.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused were charged with a serious offence, possession of can­nabis marijuana - The Crown's case relied primarily on the evidence obtained in executing a search warrant - The warrant was ruled invalid and the search was found to constitute an unreasonable search and seizure (Charter, s. 8) - Both the justice of the peace and the police believed the warrant was valid and acted in good faith -Although the Charter breach (wrong pro­cedure by justice) was more than tech­nical, it was not wilful, flagrant or deliber­ate - Admission of the real, nonconscript­ive evidence would not render the trial unfair -Con­versely, exclusion of the evidence would bring the administration of justice into disrepute - The Saskatchewan Provin­cial Court refused to exclude the evidence under s. 24(2) of the Charter - See para­graphs 22 to 36.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suf­ficiency of form and content - A police officer who pre­pared an information to obtain a search warrant attached an "Ap­pendix A" to the information - The ap­pendix, which was not sworn or affirmed, contained his actual grounds for belief that a search would provide evidence of of­fences - The Saskatchewan Provincial Court held that the failure to swear to or affirm the ap­pendix did not invalidate the warrant - The court stated that "while it might have been preferable for the officer to exhibit the appendix to the information, much as one might do with appendices to an affi­davit, it is clear to me, as I believe it would have been to the justice of the peace, that he intended the appendix to form part of that which he was affirming before her in support of his application for a search warrant" - See paragraph 12.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suf­ficiency of form and content - A police officer obtained search warrants under the Criminal Code and the Controlled Drugs and Substances Act - The information in support of the Criminal Code warrant was affirmed before the justice of the peace - The in­formation in support of the Con­trolled Drugs and Sub­stances Act warrant was neither sworn nor affirmed - The jurat was not properly completed - The Saskatche­wan Provincial Court held that the warrant was not ren­dered invalid - The court stated that "the fact that the jurat is in­complete on the information to obtain pursuant to the Con­trolled Drugs and Substances Act does not alter the fact that the officer honestly believed that he had affirmed both informations ... He believed he had com­plied with the requirements of the law and he left the company of the justice of the peace believing he had obtained valid warrants to search." - The defect was a nonfatal defect of form - See paragraphs 13 to 14.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suf­ficiency of form and content - The accused challenged the validity of a search warrant on the basis that it relied on stale-dated information, some dating back two years - The Saskatchewan Provincial Court rejected the challenge - The accused did not attack the reliability of the infor­mation, only its contemporaneity - The court stated that "where the justice of the peace is asked to consider issuing search warrants in con­nection with suspected drug trafficking, such dated information may be helpful in the justice knowing whether the believed drug dealing has been occurring for a short or long time" - See paragraph 16.

Criminal Law - Topic 3189

Special powers - Setting aside search warrants - Grounds - Failure to verify sources of information - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Angst (B.) et al. (1999), 179 Sask.R. 273 (Q.B.), refd to. [para. 7].

R. v. Christianson (1986), 47 Sask.R. 143; 26 C.C.C.(3d) 391 (Q.B.), refd to. [para. 18].

Shumiatcher v. Saskatchewan (Attorney General) et al. (1960), 129 C.C.C. 270 (Sask. Q.B.), refd to. [para. 21].

Worral, Re, [1965] 2 C.C.C. 1; 44 C.R. 151 (Ont. C.A.), refd to. [para. 21].

R. v. Lajoie (1983), 50 A.R. 140; 8 C.C.C.(3d) 353; 4 D.L.R.(4th) 491 (N.W.T.S.C.), refd to. [para. 21].

R. v. Dodge (1984), 50 Nfld. & P.E.I.R. 349; 149 A.P.R. 349; 16 C.C.C.(3d) 385 (Nfld. T.D.), refd to. [para. 21].

R. v. Silverstrone (1991), 2 B.C.A.C. 195; 5 W.A.C. 195; 66 C.C.C.(3d) 125 (C.A.), refd to. [para. 21].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 21].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161; 75 C.R.(3d) 257; 46 C.R.R. 1; [1990] 3 W.W.R. 577, refd to. [para. 25].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.C.C.(3d) 296, refd to. [para. 26].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321; 5 C.R.(5th) 1, refd to. [para. 26].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1, refd to. [para. 26].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479; 67 C.R.(3d) 87; 56 D.L.R.(4th) 673, refd to. [para. 26].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163; 45 C.C.C.(3d) 385; 67 C.R.(3d) 224, refd to. [para. 26].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250; 60 C.C.C.(3d) 460, refd to. [para. 26].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; [1993] 8 W.W.R. 287; 84 C.C.C.(3d) 203, refd to. [para. 26].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 26].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 118 C.C.C.(3d) 405; 151 D.L.R.(4th) 443, refd to. [para. 26].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 115 C.C.C.(3d) 129, refd to. [para. 26].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 26].

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; 84 C.C.C.(3d) 173; 24 C.R.(4th) 1, refd to. [para. 26].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322; 53 C.C.C.(3d) 1; 74 C.R.(3d) 281; 45 C.R.R. 278, refd to. [para. 26].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Keshane (B.M.), [1996] 3 S.C.R. 413; 203 N.R. 3; 148 Sask.R. 39; 134 W.A.C. 39, refd to. [para. 26].

R. v. McAvena (1987), 55 Sask.R. 161; 34 C.C.C.(3d) 461 (C.A.), refd to. [para. 34].

Counsel:

Gerald Perkins, for the Crown;

Ronald Piche, for the accused.

This application was heard before Nightin­gale, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on January 20, 2000.

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