R. v. Brown (M.O.) et al., (2008) 451 A.R. 1 (QB)

• Judge: Germain, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 04, 2008
• Citations: (2008), 451 A.R. 1 (QB);2008 ABQB 663

R. v. Brown (M.O.) (2008), 451 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. NO.048

Her Majesty the Queen (Crown) v. Mario Orlando Brown and Cherone Marsha Wright

(070387501Q1; 2008 ABQB 663)

Indexed As: R. v. Brown (M.O.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Germain, J.

November 4, 2008.

Summary:

RCMP obtained a search warrant to enter and search the mobile home of Wright and Brown. They seized incriminating evidence, including crack cocaine and the paraphernalia of drug trafficking. The two accused were jointly charged with possession of cocaine for the purpose of trafficking. Brown was also charged with obstructing a police officer, and breaching the terms of a recognizance. The time of the entry, and the manner by which the RCMP obtained the search warrant led to an assertion by the accused that their s. 8 Charter rights to be protected against unreasonable search and seizure, were violated. A voir dire was held.

The Alberta Court of Queen's Bench ruled that the warrant was validly issued and validly executed. No breach of the s. 8 Charter rights of either accused took place. The evidence obtained during the execution of the search warrant was admissible.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - A voir dire dealt with whether a s. 8 Charter violation occurred, and the validity of the search warrant, conducted at night - The Alberta Court of Queen's Bench concluded that the warrant was validly issued and executed - Had it concluded otherwise, the court noted that a s. 24 Charter analysis following the criteria set out in R v. Collins (1987) (S.C.C.) (the "Collins analysis") would have been necessary - In this case, had the defence arguments for exclusion of part of the Information To Obtain a Warrant been accepted, "at best there would have been interpretation and drafting style errors, leading to an erroneous but unintended impression left with the Justice of the Peace" - If the warrant should not have been conducted at night, the evidence obtained would still have been admissible, on the Collins analysis - A search of what was anticipated to be an empty house eight or less minutes before daytime would not warrant exclusion of the evidence - First the officers who entered were acting in good faith - Second, the bulk of the search was conducted during the day - Third, entry was by key - Fourth, the search recovered real evidence of a serious crime (drug possession) - Finally, there was some indication that the house was empty - Given those factors, even had the accused's s. 8 Charter rights been breached by the night search, the breach was not serious - The administration of justice would be put into disrepute more by the exclusion of the evidence, than by its admission in the face of such a technical breach - See paragraphs 68 to 72.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - [See Criminal Law - Topic 3093 ].

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - [See Criminal Law - Topic 3118 ].

Criminal Law - Topic 3051

Special powers - Search warrants - Narcotic control - [See Criminal Law - Topic 3093 ].

Criminal Law - Topic 3057

Special powers - Search warrants - Telewarrants - A warrant to search a mobile home was obtained under s. 487.1(1) of the Criminal Code (submitted and issued via telecommunications) - There was no justice of the peace in the rural community where the investigation, arrest, and search all took place - The Alberta Court of Queen's Bench ruled that the warrant was validly issued - Section 487.1 permitted telewarrants where it would be impracticable to appear personally before a justice of the peace - "The criteria to obtain a telewarrant are set out in Criminal Code, ss. 487.1(4) and 487.1(5). The general search warrant procedures and requirements set by Criminal Code, s. 487 are incorporated by reference. There must be reasonable grounds for the existence of at least one of the preconditions set out in s. 487 for a validly issued warrant, otherwise execution of an ungrounded warrant may result in a s. 8 Charter breach of the prohibition against unreasonable search and seizure" - See paragraphs 14 to 18.

Criminal Law - Topic 3057

Special powers - Search warrants - Telewarrants - A telewarrant was valid for the period between 4:30 a.m. to 9:00 a.m., and included a period of time (4:30-5:59 a.m.) that fell within the definition of "night" (s. 2, Criminal Code) - An accused filed a notice of constitutional argument, indicating that the impugned residential search was conducted at 5:55 A.M., though the evidence was that the officers were on the landing of the home at 5:53 A.M., and opened the door with a key from the accused's key chain - The search warrant was valid for the period between 4:30 A.M. to 9:00 A.M. - The Alberta Court of Queen's Bench ruled that the warrant was validly issued and validly executed - A warrant need not carry any specific designation that it was a "night" warrant; rather when a judge authorizes a warrant that includes times that fall into the "night" period, a search by night was allowed - In short, the court adopted a purposive interpretation of s. 488 of the Criminal Code, which set out certain restrictions on the execution of warrants (issued under s. 487 or 487.1), during specific times ("day" or "night") - See paragraphs 53 to 55, 59.

Criminal Law - Topic 3057

Special powers - Search warrants - Telewarrants - An accused was in custody at the time of the search of his mobile home - The police watched the residence after his arrest - Additionally at 2:00 that morning, an officer in uniform knocked on the door; there was no answer - The investigating officers were initially told by the accused that no one was in the mobile home, but immediately prior to the search, he said his girlfriend was there - In the Information To Obtain a Warrant, reasons for the request of an immediate (night) search were indicated: (1) to protect officer safety, and (2) to assist in an early exercise of the accused's right to attempt bail - The Alberta Court of Queen's Bench ruled that the warrant was validly issued and validly executed - The reasoning in R. v. Sutherland (2000) (Ont. C.A.) and its "high and stringent" requirements for a night entry did not apply in this case - First, the entry of the police was hardly an "invasion", but a deliberate and careful entry - Second, the police had a strong basis to believe that the mobile home was unoccupied - Third, if police have evidence that the occupants of a property were awake, or that a property was unoccupied, a search warrant conducted at night required a lower necessity threshold - See paragraphs 56 to 59.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - On a voir dire, the accused (Brown and Wright) argued that the alleged overstatements, discrepancies and misleading information in the "Information To Obtain a Warrant" (ITO) should be excised, and that the remaining ITO did not provide enough evidence to satisfy the required reasonable and probable grounds - Their thesis was that the search for materials to confirm the identity of Brown was a ruse; that the RCMP were, in truth, attempting to find drugs and that the police did not have reasonable and probable grounds to search for drugs - The Alberta Court of Queen's Bench ruled that the warrant was validly issued - The RCMP officers knew Brown was facing other serious charges; he had a curfew; he was restricted from operating or travelling in a private motor vehicle, and that he was required to report to authorities any change in residence - What they didn't know was that Brown would lie to them about his identity - Once he did that, it was reasonable and proper for the officers to get a search warrant for the purpose of searching the last place he was seen coming from - "An overall impression should be taken, not an exacting word for word analysis" - Taking into account the "minor inaccuracies and errors" in the ITO, the court therefore concluded that the justice of the peace could have been justified in issuing a search warrant for the mobile home - Accordingly, there was no breach of the accused's s. 8 Charter rights in the RCMP conducting that search - See paragraphs 47 to 52.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Criminal Law - Topic 3118 ].

Criminal Law - Topic 3107

Special powers - Issue of search warrants - Procedure - At issue on a voir dire was whether an Information To Obtain a Warrant provided an adequate reason by which a judge could have issued a night warrant to search a mobile home - The Alberta Court of Queen's Bench stated that "Common sense suggests the usual rules [R. v. Garofoli principles and procedures] for review of whether a search warrant was properly issued apply. Accordingly, it is not my entitlement as a trial judge to substitute my view for that of the Justice of the Peace, provided his conclusion is one that can be reasonably drawn from the evidence contained in the information, or added during amplification" - The court concluded that the justice of the peace could have concluded that the home was probably unoccupied, and no extraordinary reason was required for a night search warrant entry under s. 488 of the Criminal Code - Thus, the warrant was valid, and its execution a few minutes before daylight did not constitute a violation of the s. 8 Charter rights of the accused - The court opined that, with the benefit of hindsight, the officer could have provided more detail about why a night search was necessary; "[h]owever, an analysis with the benefit of hindsight is not the criteria to assess the validity of the warrant" - See paragraphs 60 to 61.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The Alberta Court of Queen's Bench restated the standard of review and procedure for a court's review of authorization that led to a search warrant, set by the Supreme Court of Canada in R. v. Garofoli (1990) and further described in R. v. Araujo (2000), including the low threshold required by a reviewing court to support and justify issuance; "namely: was there any basis a judge could grant the warrant" - See paragraphs 29 to 32.

Criminal Law - Topic 3117

Special powers - Setting aside search warrants - General - Cross-examination of affiant - A Charter challenge raised concerns about the validity of a search warrant - The accused wished to cross-examine the police officer who swore the required affidavit, i.e., the "Information To Obtain a Warrant", and other officers, in relation to the information upon which the warrant was based - As a preliminary matter, the Alberta Court of Queen's Bench confirmed the leave requirement test - "The accused as a preliminary step must establish an entitlement to conduct the cross-examination. Counsel are permitted to set out their case, which if it develops as asserted, may establish that the warrant was not properly granted. This practice of first establishing an entitlement to cross-examine is to prevent inordinate trial delay, and encourage a focus on the correct issues relating to the validity of warrants" - The court noted the many decisions that indicated, in guiding trial judges as to how to exercise their discretion, that the threshold required to demonstrate a need for affiant cross-examination was not a stringent one - See paragraphs 5 to 10.

Criminal Law - Topic 3118

Special powers - Setting aside search warrants - General - Evidence (incl. amplification evidence) - A Charter challenge raised concerns about the validity of a search warrant - The accused argued that the warrant to search his mobile home for materials to confirm his identity was a ruse; that the police really thought that they were dealing with a drug dealer and that they were disingenuous in not disclosing that belief to the justice of the peace - Under oath, the affiant of the Information To Obtain a Warrant conceded that he suspected the accused was a drug dealer but that he did not have sufficient grounds to search the premises to look for drugs - The Alberta Court of Queen's Bench ruled that the warrant was validly issued - The police were not obliged to disclose all of their suspicions about the accused; rather, they were required to give sufficient evidence to convince a justice that the police were entitled to the warrant as documented - "A search pursuant to a validly issued search warrant does not breach Charter, s. 8 protections against unreasonable search and seizure simply because the police: 'have more than they show, or say less than they know'" - There was no expansion of the search domain - The drugs were in plain view and easily observed during the initial verification that the home was empty - See paragraphs 65 to 67.

Criminal Law - Topic 3154

Special powers - Power of search - Evidence obtained - Admission of - [See Criminal Law - Topic 3093 ].

Criminal Law - Topic 3163

Special powers - Power of seizure - Extent of power - In this case what was identified in a telewarrant as the target of the search was documentation and evidence that would establish the identity of the accused Brown - While conducting a search of the mobile home to verify the absence or clear the premises of persons (a standard and judicially accepted police safety practice), the police came upon drugs in plain view - Later, the police located the identity documents sought - The Alberta Court of Queen's Bench ruled that the warrant was validly executed - Although the warrant was not granted to search for drugs, it was not the law that a search pursuant to a warrant was restricted to only those items identified in the warrant - Section 489 of the Criminal Code set out a general authority that allowed persons executing a warrant to seize materials believed to relate to illegal activities - See paragraphs 62 to 63.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - The accused argued that the alleged overstatements, discrepancies and misleading information in the "Information To Obtain a Warrant" (ITO) should be excised, and that the remaining ITO did not provide enough evidence to satisfy the required reasonable and probable grounds - Before focussing on the impugned paragraphs, the Alberta Court of Queen's Bench stated that "I do not want to leave the impression that an ITO must withstand an exacting line by line or paragraph by paragraph analysis. Rather, at some point the ITO must be looked at in its entirety, as individual errors, mistakes and misunderstandings, even if they involve a crucial point, do not automatically determine that the warrant is invalid. Indeed, even fraudulent errors in a search warrant ITO do not automatically invalidate a warrant. ... The rule is in fact to the contrary, the warrant issued by a judicial officer is presumptively valid ..., and the legal literature provides limits on the circumstances and evidence that allow for a retroactive finding of invalidity" - See paragraphs 31 to 32.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - In considering whether there was any basis on which a search warrant could have been granted, the Alberta Court of Queen's Bench held that a proper objection could not be based on the affiant's use of the word "suspicion" in the Information To Obtain a Warrant, instead of the phrases "reasonable grounds" or "reasonable and probable grounds" - "First, the entire ITO is prefaced with the preamble in the printed form ... which asserts: '... and that he has reasonable grounds for believing'. Second, the Supreme Court of Canada in R. v. Araujo, at paras. 46-47 stressed that an affidavit for a warrant ought to avoid legalese and boiler plate language, and should be interpreted on that basis. Last, it is the judicial officer that must have the reasonable grounds, not the affiant ..., although certainly one often follows the other" - See paragraphs 43 to 44.

Narcotic Control - Topic 2024

Search and seizure - Search warrants - Execution - [See Criminal Law - Topic 3093 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Criminal Law - Topic 3093 ].

Police - Topic 3186

Powers - Search - Private property - [See third Criminal Law - Topic 3057 ].

Cases Noticed:

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 5].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

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, refd to. [para. 6].

R. v. Williams (D.) (2003), 180 O.A.C. 171; 181 C.C.C.(3d) 414 (C.A.), refd to. [para. 9].

R. v. Kim (H.S.) et al. (2004), 368 A.R. 271; 2004 ABQB 584, refd to. [para. 12].

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 SCC 65, refd to. [para. 29].

R. v. Elkadri (A.) et al. (2007), 441 A.R. 38; 77 W.C.B.(2d) 642; 2008 ABQB 55, refd to. [para. 29].

Quebec (Procureur général) v. Laroche et al., [2002] 3 S.C.R. 708; 295 N.R. 291; 2002 SCC 72, refd to. [para. 30].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1; 134 C.C.C.(3d) 539 (C.A.), refd to. [para. 31].

R. v. Feldman (A.F.), [1994] 3 S.C.R. 832; 178 N.R. 140; 53 B.C.A.C. 158; 87 W.A.C. 158, refd to. [para. 32].

R. v. Bisson (J.) et autres, [1994] 3 S.C.R. 1097; 173 N.R. 237; 65 Q.A.C. 241; 94 C.C.C.(3d) 94, refd to. [para. 32].

R. v. Purdy et al. (1972), 4 N.B.R.(2d) 848; 28 D.L.R.(3d) 720; 8 C.C.C.(2d) 52 (C.A.), refd to. [para. 44].

R. v. James (G.E.), [1990] B.C.T.C. Uned. D30; 1990 CanLII 1505 (S.C.), refd to. [para. 55].

R. v. Sutherland (M.) (2000), 139 O.A.C. 53; 52 O.R.(3d) 27 (C.A.), dist. [para. 57].

R. v. Sattar (F.H.) (2008), 443 A.R. 349; 2008 ABPC 115, appld. [para. 59].

R. v. Daigle (J.R.) (1994), 49 B.C.A.C. 257; 80 W.A.C. 257; 25 W.C.B.(2d) 16 (C.A.), refd to. [para. 63].

R. v. Annett (1984), 6 O.A.C. 302; 17 C.C.C.(3d) 332 (C.A.), leave to appeal refused (1985), 58 N.R. 239; 9 O.A.C. 80 (S.C.C.), refd to. [para. 66].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 66].

R. v. Law - see R. v. 28221109 Canada Inc. et al.

R. v. Middleton (R.C.) (2000), 145 B.C.A.C. 257; 237 W.A.C. 257; 2000 BCCA 660, refd to. [para. 66].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 38 D.L.R.(4th) 508, refd to. [para. 68].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487(1) [para. 16]; sect. 487.1 [para. 14]; sect. 488 [para. 53]; sect. 489 [para. 62].

Counsel:

Adam C. Halliday, for the Crown;

Brian E. Peterson, Q.C. (Pringle Peterson MacDonald & Bottos), for the defendant, Mario Orlando Brown;

Andrew Fong (Mah & Company), for the defendant, Cherone Marsha Wright.

This Charter voir dire was heard on September 24-26, 2008, by Germain, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who gave the following ruling and memorandum of decision on November 4, 2008.