R. v. Dionisi (A.P.), 2012 ABCA 20

• Judge: Watson, Rowbotham and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 26, 2012
• Citations: 2012 ABCA 20;(2012), 519 A.R. 313

R. v. Dionisi (A.P.) (2012), 519 A.R. 313; 539 W.A.C. 313 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JA.125

Her Majesty The Queen (respondent) v. Anthony Paul Dionisi (appellant/applicant)

(1101-0182-A; 2012 ABCA 20)

Indexed As: R. v. Dionisi (A.P.)

Alberta Court of Appeal

Watson, Rowbotham and O'Ferrall, JJ.A.

January 26, 2012.

Summary:

Police, executing a search warrant, seized drugs and drug paraphernalia from the accused's residence. The trial judge, in a judgment reported [2011] A.R. Uned. 272, ruled that the information to obtain the search warrant did not provide reasonable and probable grounds to justify issuance of the warrant. Accordingly, the accused was subjected to an unreasonable search and seizure (Charter, s. 8). However, the trial judge declined to exclude the evidence under s. 24(2). The accused was convicted of possession of both cocaine and marijuana for the purpose of trafficking. The accused appealed his conviction arguing that the evidence should have been excluded. The Crown argued that not only was there no error in admitting the evidence, the trial judge erred in finding an unreasonable search and seizure.

The Alberta Court of Appeal dismissed the appeal. The trial judge did not err in declining to exclude the evidence under s. 24(2). The court also agreed that the trial judge erred in his approach to finding a breach of s. 8.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police obtained a search warrant to search the accused's residence for drugs largely on information provided by an unidentified informant - The trial judge ruled that the information to obtain the warrant did not provide reasonable and probable grounds to issue a search warrant - Accordingly, the accused's s. 8 Charter rights were violated by the unreasonable search and seizure pursuant to an invalid search warrant - However, the trial judge declined to exclude the evidence under s. 24(2) of the Charter, as admission of the evidence would not bring the administration of justice into disrepute - The trial judge found no police misconduct or negligence in obtaining or executing the search warrant - The officers had an honest belief in the lawfulness of their actions - The Alberta Court of Appeal held that the trial judge did not err in declining to exclude the evidence - The court stated that "the only flaw is in what the trial judge felt to be something less than enough grounds. The trial judge did not find that the police were or should have been aware that the grounds as redacted were not enough. The startling nature of the police search [middle of night, as authorized] was not outrageous, or itself abusive. Admission of the evidence was not erroneous." - See paragraphs 17 to 19.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Alberta Court of Appeal stated that "the standard of review of a decision of a trial judge to admit evidence pursuant to section 24(2) of the Charter is deferential. The decision to admit evidence under section 24(2) of the Charter is reviewed for reasonableness on any factual issues and for correctness on an extricable issue of law"- As stated by the Supreme Court of Canada in Grant, "where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review" - See paragraph 14.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - A trial judge determined that the information to obtain a search warrant (ITO) failed to disclose reasonable and probable grounds to support the issuance of the warrant, thereby subjecting the accused to an unreasonable search and seizure (Charter, s. 8) - The Alberta Court of Appeal opined that the judge erred in her approach to finding a breach of s. 8 based on insufficient information in an ITO to support the issuance of a warrant - The court stated that "in a voir dire as to a section 8 Charter breach, the onus is not upon the claimant to merely show that there were defects in the ITO, the claimant must establish the breach of section 8 on a balance of probabilities. This can be done only by showing that it is likely that the search warrant would not have issued based upon the content of the ITO. It is not enough to persuade the trial judge that she would not have been inclined to issue the warrant on the grounds thus provided. The trial judge must be satisfied that the warrant is invalid, not that the trial judge would not have authorized it. The trial judge does not re-try the warrant. ... the function of the trial judge is not to substitute her opinion for that of the authorizing judge ... The function of the reviewing judge is not to conduct a rehearing; rather, that judge should not interfere if the authorizing judge could have granted the authorization" - See paragraphs 20, 24.

Cases Noticed:

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. 2].

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. 2].

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, refd to. [para. 14].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. Harding (S.G.) (2010), 482 A.R. 262; 490 W.A.C. 262; 2010 ABCA 180, refd to. [para. 14].

R. v. Loewen (D.J.) (2010), 490 A.R. 72; 497 W.A.C. 72; 2010 ABCA 255, affd. [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 14].

R. v. Côté (A.) (2011), 421 N.R. 112; 2011 SCC 46, refd to. [para. 14].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 15].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306, refd to. [para. 16].

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1, refd to. [para. 17].

R. v. Ngai (K.W.) (2010), 474 A.R. 230; 479 W.A.C. 230; 2010 ABCA 10, refd to. [para. 19].

R. v. Schindler (J.F.) (2001), 277 A.R. 98; 242 W.A.C. 98; 2001 ABCA 22, refd to. [para. 20].

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, refd to. [para. 20].

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. 21].

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

R. v. Caissey (L.M.) (2007), 422 A.R. 208; 415 W.A.C. 208; 227 C.C.C.(3d) 322; 2007 ABCA 380, affd. [2008] 3 S.C.R. 451; 382 N.R. 198; 446 A.R. 397; 442 W.A.C. 397; 2008 SCC 65, refd to. [para. 21].

R. v. Hillgardener (A.R.) (2010), 477 A.R. 200; 483 W.A.C. 200; 252 C.C.C.(3d) 486; 2010 ABCA 80, refd to. [para. 21].

R. v. Whitaker (D.P.) (2008), 254 B.C.A.C. 234; 426 W.A.C. 234; 2008 BCCA 174, leave to appeal refused [2008] 3 S.C.R. x; 391 N.R. 394; 279 B.C.A.C. 320; 473 W.A.C. 320, refd to. [para. 22].

R. v. Pitre (M.S.) (2011), 381 N.B.R.(2d) 203; 984 A.P.R. 203; 2011 NBCA 106, refd to. [para. 23].

Quebec (Procureur général) v. Laroche et al., [2002] 3 S.C.R. 708; 295 N.R. 291, refd to. [para. 23].

R. v. Campbell (N.M.), [2011] 2 S.C.R. 549; 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 24].

R. v. Lee (B.) (2011), 515 A.R. 65; 532 W.A.C. 65; 2011 ABCA 310, refd to. [para. 24].

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, refd to. [para. 24].

R. v. Ebanks (N.) (2009), 256 O.A.C. 222; 2009 CarswellOnt 7509; 249 C.C.C.(3d) 29; 2009 ONCA 851, refd to. [para. 26].

Counsel:

T.W. Lord, for the respondent;

J.S. Patel, for the appellant.

This appeal was heard on January 17, 2012, before Watson, Rowbotham and O'Ferrall, JJ.A., of the Alberta Court of Appeal.

On January 26, 2012, the following memorandum of judgment was filed by the Court.