R. v. Kuzyk (C.), 2014 MBQB 158

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 21, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBQB 158;(2014), 308 Man.R.(2d) 128 (QB)

R. v. Kuzyk (C.) (2014), 308 Man.R.(2d) 128 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. AU.005

Her Majesty The Queen v. Christopher Kuzyk (accused)

(CR 13-01-32679; 2014 MBQB 158)

Indexed As: R. v. Kuzyk (C.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

July 21, 2014.

Summary:

An officer made handwritten notes regarding information from a confidential informant. After checking the information, the officer prepared an information to obtain a search warrant for the accused's residence. The handwritten notes were destroyed. The search warrant was executed by forcing entry. The accused was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. Alleging a breach of his right under s. 7 of the Charter to make full answer and defence arising from the destruction of the handwritten notes, the accused applied under s. 24(1) of the Charter for a stay of the proceedings. Alternatively, alleging a breach of s. 8 arising from the search, the accused sought exclusion of the evidence obtained under s. 24(2).

The Manitoba Court of Queen's Bench dismissed the application.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - An officer obtained a search warrant for the accused's residence - The search warrant was executed by forcing entry - The accused was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Alleging a breach of s. 8 of the Charter arising from the search, the accused sought exclusion of the evidence obtained under s. 24(2) - In particular, the accused asserted that the manner of execution of the search warrant was unreasonable - The Manitoba Court of Queen's Bench dismissed the application - The officers' evidence regarding the careful consideration given to the plan to use a forced entry persuaded the court that the search was reasonable - The officers' concerns were reasonable and they had adequately demonstrated that exigent circumstances existed - No s. 8 breach had been established - See paragraphs 58 to 64.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - Based on information from a confidential informant, an officer obtained a search warrant for the accused's residence - The search warrant was executed - The accused was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Alleging a breach of s. 8 of the Charter arising from the search, the accused sought exclusion of the evidence obtained under s. 24(2) - In particular, the accused asserted that there were insufficient grounds for the issuance of the search warrant - The Manitoba Court of Queen's Bench dismissed the application - In the context of s. 11(1) of the Controlled Drugs and Substances Act, the question was whether the issuing judge had reasonable grounds to believe that a controlled substance was present at the accused's residence - Here, the information contained in the information to obtain (ITO) the warrant was compelling due to the degree of detail in the information and the informant's source of knowledge - Further, the officer had taken sufficient steps to confirm the information - The information in the ITO supported the search warrant - There was no breach of s. 8 - See paragraphs 42 to 57.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - An officer made handwritten notes regarding information from a confidential informant - After checking the information, the officer prepared an information to obtain (ITO) a search warrant for the accused's residence - The handwritten notes were destroyed - The search warrant was obtained and executed - The accused was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Alleging a breach of his right under s. 7 of the Charter to make full answer and defence arising from the destruction of the handwritten notes, the accused applied under s. 24(1) of the Charter for a stay of the proceedings - The Manitoba Court of Queen's Bench dismissed the application - As the accuracy and completeness of the information in the ITO was subject to review, threshold relevance of the notes had been established - The officer either did not understand his obligation to preserve evidence or had not taken sufficient care - Unacceptable negligence had been established - A breach of s. 7 had occurred - However, the circumstances supported the officer's testimony that he had accurately and completely included all of the information in the notes in his ITO, which had been prepared within hours of receiving the information - The accused had not established "a serious impairment of the right to make full answer and defence" - The loss of the notes had not irreparably prejudiced the accused's right to a fair trial - This was not one of the clearest cases justifying a stay of proceedings - See paragraphs 15 to 40.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3128 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - An officer obtained a search warrant for the accused's residence - The search warrant was executed by forcing entry - The accused was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Alleging a breach of s. 8 of the Charter arising from the search, the accused sought exclusion of the evidence obtained under s. 24(2) - In particular, the accused asserted that there were insufficient grounds for the issuance of the search warrant and that the manner of execution of the search warrant was unreasonable - The Manitoba Court of Queen's Bench dismissed the application - Even if the information in the ITO had fallen short of justifying the search warrant or the manner of search had been unreasonable, these would not have been particularly serious s. 8 breaches - The application under s. 24(2) would have been dismissed - There was no evidence of bad faith or wilful behaviour by the officers - The drugs and other items found in the residence were real, highly reliable evidence that was central to the Crown's case - See paragraphs 65 to 70.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - [See Civil Rights - Topic 1556 ].

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - [See Civil Rights - Topic 1604 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Civil Rights - Topic 1604 and Civil Rights - Topic 3128 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See Civil Rights - Topic 1604 ].

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity or location of police informants - An officer made handwritten notes regarding information from a confidential informant - After checking the information, the officer prepared an information to obtain a search warrant for the accused's residence - The handwritten notes were destroyed - The search warrant was executed - The accused was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - Alleging a breach of his right under s. 7 of the Charter to make full answer and defence arising from the destruction of the handwritten notes, the accused applied under s. 24(1) of the Charter for a stay of the proceedings - The Crown asserted that, even if the notes were available, they would not be producible because they were protected by the rule of informer privilege - The Manitoba Court of Queen's Bench rejected the Crown's argument - Informer privilege protected only information tending to identify the informant, which the accused did not seek - If available, the notes would have been subject to production with editing to protect the informant's identity - See paragraphs 12 to 14.

Narcotic Control - Topic 2024

Search and seizure - Search warrants - Execution - [See Civil Rights - Topic 1556 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Civil Rights - Topic 1604 ].

Police - Topic 2213

Duties - General duties - Recording and preserving evidence - [See Civil Rights - Topic 3128 ].

Police - Topic 3146

Powers - Forcible entry - Of premises - [See Civil Rights - Topic 1556 ].

Cases Noticed:

R. v. Satkunananthan (S.) et al. (2001), 143 O.A.C. 1 (C.A.), refd to. [para. 12].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 13].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 13].

R. v. Barzal (M.D.) et al. (1993), 33 B.C.A.C. 161; 54 W.A.C. 161 (C.A.), refd to. [para. 14].

R. v. Forster (H.R.) et al. (2005), 269 Sask.R. 275; 357 W.A.C. 275; 2005 SKCA 107, dist. [para. 14].

R. v. Hunda, 2014 ONSC 607, refd to. [para. 16].

R. v. Araujo (A.) (2000), 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 18].

R. v. Mack (D.R.) (2007), 458 A.R. 52; 2007 ABQB 182, refd to. [para. 19].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 23].

R. v. F.C.B. (2000), 182 N.S.R.(2d) 215; 563 A.P.R. 215; 2000 NSCA 35, refd to. [para. 25].

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. 26].

R. v. Pilkington (C.) (2013), 290 Man.R.(2d) 109; 2013 MBQB 79, refd to. [para. 43].

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, refd to. [para. 44].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 45].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 45].

R. v. Caissey (L.M.) (2007), 422 A.R. 208; 415 W.A.C. 208; 2007 ABCA 380, refd to. [para. 47].

R. v. Campbell (N.M.) (2011), 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 48].

R. v. Pierson (W.K.R.) (2013), 289 Man.R.(2d) 272; 2013 MBQB 72, refd to. [para. 53].

R. v. Del Carmen (J.M.) (2013), 296 Man.R.(2d) 284; 2013 MBQB 217, refd to. [para. 55].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1 (C.A.), refd to. [para. 56].

R. v. Evans (E.D.) (2014), 306 Man.R.(2d) 9; 604 W.A.C. 9; 2014 MBCA 44, refd to. [para. 56].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 58].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163, refd to. [para. 58].

R. v. Gimson, [1991] 3 S.C.R. 692; 152 N.R. 161; 62 O.A.C. 282, refd to. [para. 58].

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, appld. [para. 59].

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. 66].

Counsel:

Victoria Cornick, for the Crown;

Sarah A. Inness, for the accused.

This voir dire was heard by Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following ruling on July 21, 2014.