R. v. Jordan (A.D.) et al., 2011 ABQB 105

• Judge: Mahoney, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 01, 2010
• Citations: 2011 ABQB 105;(2011), 506 A.R. 163 (QB)

R. v. Jordan (A.D.) (2011), 506 A.R. 163 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.084

Her Majesty The Queen v. Alexander Dean Jordan and Tyson Price

(071466015Q1; 2011 ABQB 105)

Indexed As: R. v. Jordan (A.D.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Mahoney, J.

February 4, 2011.

Summary:

The accused were charged with possession of cocaine, ecstasy and marijuana for the purpose of trafficking, and possession of the proceeds of crime not exceeding $5,000, following a search of their residence. The accused alleged that they were subjected to an unreasonable search and seizure (Charter, s. 8) because the police unreasonably made an unannounced forced entry into the residence while wearing balaclavas (no knock and announce), the search warrant was not provided in a timely fashion and the search warrants were obtained using unsworn information. The accused sought exclusion of the evidence under s. 24(2) of the Charter and a quashing of the search warrants for noncompliance with the requirements for the issuance of warrants under s. 11(1) of the Controlled Drugs and Substances Act.

The Alberta Court of Queen's Bench held that neither the obtention of the search warrant nor the manner of its execution constituted an unreasonable search and seizure (Charter, s. 8). In any event, the evidence obtained in the search would not have been excluded under s. 24(2).

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Narcotic Control - Topic 2024 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Narcotic Control - Topic 2024 ].

Narcotic Control - Topic 2024

Search and seizure - Search warrants - Execution - Police executed a search warrant at the accused's residence by making an unannounced hard entry using a battering ram while wearing balaclavas - Although the risk assessment was low, police decided to forgo a "knock and announce" entry in favour of forced entry because it was unknown how many persons were present, whether weapons were present and they were concerned about the destruction of evidence (cocaine) - The accused also complained about the delay in delivering copies of the search warrant (after tactical team forcibly entered the residence and secured it) - The accused argued that the manner of the search constituted an unreasonable search and seizure (Charter, s. 8) and that the evidence obtained should be excluded under s. 24(2) - The Alberta Court of Queen's Bench held that the manner of the search did not violate s. 8 - One of the members of the tactical team entered within seconds of the first officers entering - He had a copy of the warrant that could have been produced if production was requested - Another officer left a copy of the warrant in the residence - The use of balaclavas (protection from shattering glass, wood, etc., on forced entry) was reasonable and justified - The unannounced forced entry into a private dwelling was not unreasonable because of the exigent circumstances (unknown risk to police safety from persons or weapons unknown and the fear that the evidence (cocaine) could be quickly destroyed if police first knocked to announce their entry) - The court opined that if the manner of the search did violate s. 8, the evidence would not have been excluded under s. 24(2) - See paragraphs 66 to 119.

Narcotic Control - Topic 2035

Search and seizure - Search warrants - "Securing" premises until search warrant arrives - [See Narcotic Control - Topic 2024 ].

Narcotic Control - Topic 2048

Search and seizure - Setting aside search warrants - Grounds - Unsworn information - Police obtained a search warrant (and a second warrant extending the time) based on the police officer's unsworn informations to obtain (ITOs) - The ITOs were sworn shortly after the warrants were executed - Section 11(1) of the Controlled Drugs and Substances Act authorized the issuance of a search warrant based on "information on oath" - The accused challenged the validity of the search warrant on two grounds: (1) "in retiring to evaluate an unsworn ITO, a perception exists that the judicial officers were acting as adjuncts of the police" and (2) "the warrants are invalid in that they were made absent statutory authority. Judicial officers are given authority pursuant to the CDSA to issue a warrant based upon sworn information. ... any warrant based upon an unsworn ITO is invalid" - The Alberta Court of Queen's Bench rejected both arguments - Attending before a judicial officer with an unsworn information raised a serious concern - Such practice was unsatisfactory and should stop immediately, as this practice was easily corrected - However, such practice alone did not necessarily lead to a finding that the issuing justice acted as an adjunct of the police or was otherwise unable to act as a neutral or objective assessor of the information contained in the ITO - Here there was no evidence that the unsworn ITO was amended (then sworn) based upon any informal consultation between the police and the issuing justices - There was no evidence of a lack of impartiality or neutrality - The search warrants were not issued without judicial authority - The issuing of the search warrants on unsworn ITOs and the subsequent swearing of those ITOs were part of the same continuum of events - This was not a case where the ITOs were never sworn - Accepting the accused's arguments would place form ahead of substance with unreasonable consequences - At worst, this amounted to a technical breach and the evidence would not be excluded under s. 24(2) of the Charter - See paragraphs 23 to 65.

Police - Topic 3146

Powers - Forcible entry - Of premises - [See Narcotic Control - Topic 2024 ].

Cases Noticed:

R. v. Gray (L.M.) (1993), 85 Man.R.(2d) 211; 41 W.AC. 211; 81 C.C.C.(3d) 174 (C.A.), dist. [para. 28].

R. v. Spackman (K.), [2008] O.T.C. Uned. D99; 234 C.C.C.(3d) 24 (Sup. Ct.), refd to. [para. 33].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163, refd to. [para. 34].

R. v. Blizzard (A.J.) et al. (2006), 304 N.B.R.(2d) 299; 788 A.P.R. 299; 2006 NBQB 155, refd to. [para. 34].

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, refd to. [para. 37].

R. v. Baker (H.D.), [1997] 7 W.W.R. 713; 155 Sask.R. 295 (Q.B.), refd to. [para. 38].

R. v. Hallman (M.), [2001] B.C.T.C. 1355; 88 C.R.R.(2d) 111; 2001 BCSC 1355, refd to. [para. 39].

R. v. Pedersen (S.V.) (2004), 193 B.C.A.C. 206; 316 W.A.C. 206; 2004 BCCA 64, refd to. [para. 40].

R. v. Howe (R.Y.) (1994), 52 B.C.A.C. 271; 86 W.A.C. 271 (C.A.), refd to. [para. 41].

Bostock v. R. (1987), 59 Sask.R. 188 (Q.B.), refd to. [para. 42].

Hudon v. R. (1989), 73 Sask.R. 193 (Q.B.), refd to. [para. 43].

R. v. Phoenix Property Development, [1994] O.J. No. 2606 (Gen. Div.), refd to. [para. 44].

R. v. Gordon (E.W.T.) (1999), 138 Man.R.(2d) 298; 202 W.A.C. 298; 139 C.C.C.(3d) 239 (C.A.), refd to. [para. 45].

R. v. Anderson (D.) (2010), 500 A.R. 173; 2010 ABQB 263, refd to. [para. 49].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 67].

R. v. Cornell (J.M.) (2010), 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, refd to. [para. 67].

R. v. Al-Fartossy (S.) (2007), 425 A.R. 336; 418 W.A.C. 336; 2007 ABCA 427, refd to. [para. 68].

R. v. Bohn (J.A.) (2000), 136 B.C.A.C. 263; 222 W.A.C. 263; 2000 BCCA 239, refd to. [para. 86].

R. v. Patrick (R.S.) (2007), 417 A.R. 276; 410 W.A.C. 276; 2007 ABCA 308, refd to. [para. 88].

Semayne's Case (1604), 77 E.R. 194, refd to. [para. 93].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 95].

R. v. Normore (R.D.) (2005), 379 A.R. 359; 2005 ABQB 345, refd to. [para. 98].

R. v. Schedel (B.C.) (2003), 184 B.C.A.C. 166; 302 W.A.C. 166; 175 C.C.C.(3d) 193; 2003 BCCA 364, refd to. [para. 98].

R. v. Elkadri (A.) et al. (2008), 441 A.R. 38; 2008 ABQB 55, refd to. [para. 99].

R. v. Al-Fartossy (S.) (2006), 406 A.R. 219; 2006 ABPC 203, refd to. [para. 103].

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. 109].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11(1) [para. 24]; sect. 12 [para. 66].

Authors and Works Noticed:

Fontana, James A., and Keeshan, M. David, The Law of Search and Seizure in Canada (7th Ed. 2007), pp. 160 [para. 94]; 163, 164 [para. 104].

Counsel:

Scott A. Couper, for the Crown;

David G. Chow, for the accused, Alexander Dean Jordan;

Michael G. Bates, for the accused, Tyson Price.

This application was heard on November 23, 24 and 26, 2009, September 10 and December 1, 2010, before Mahoney, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment orally on February 4, 2011, with written reasons filed on March 8, 2011.