R. v. Liberatore (M.V.), (2014) 353 N.S.R.(2d) 387 (CA)

• Judge: Hamilton, Fichaud and Beveridge JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 27, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 353 N.S.R.(2d) 387 (CA);2014 NSCA 109

R. v. Liberatore (M.V.) (2014), 353 N.S.R.(2d) 387 (CA);

    1115 A.P.R. 387

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. DE.029

Michael Vincent Liberatore (appellant) v. Her Majesty the Queen (respondent)

(CAC 426874; 2014 NSCA 109)

Indexed As: R. v. Liberatore (M.V.)

Nova Scotia Court of Appeal

Hamilton, Fichaud and Beveridge JJ.A.

December 10, 2014.

Summary:

Police obtained a warrant to search the accused's property for firearms. No firearms were found. However, evidence was found that formed the basis for charges under the Controlled Drugs and Substances Act and the Criminal Code (weapons offences). The accused asserted that the information to obtain the warrant lacked reasonable and probable grounds such that the search violated s. 8 of the Charter.

The Nova Scotia Supreme Court, in a decision reported at (2014), 342 N.S.R.(2d) 1; 1083 A.P.R. 1, held that the warrant was properly issued and the evidence obtained was admissible. The accused appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - [See Criminal Law - Topic 3183 ].

Criminal Law - Topic 3051

Special powers - Search warrants - Narcotic control - [See Criminal Law - Topic 3183 ].

Criminal Law - Topic 3113

Special powers - Setting aside search warrants or tracking warrants - General - Scope of review - The trial judge held that a search warrant was properly issued and the evidence obtained was admissible - On the accused's appeal, the Nova Scotia Court of Appeal discussed the standard of review - The issue was not whether the Court of Appeal would issue the warrant - Rather, it was whether the reviewing judge erred in law by interpreting and applying the standard to determine whether the issuing judge properly issued the warrant - The Court of Appeal applied the standard of correctness to extractable issues of law, such as the reviewing judge's interpretation of the legal principles, and palpable and overriding error to the judge's findings, inferences and assignment of weight to the evidence - See paragraph 14.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - Police obtained a warrant to search the accused's property for firearms - No firearms were found - However, evidence was found that formed the basis for charges under the Controlled Drugs and Substances Act and the Criminal Code (weapons offences) - The accused asserted that the information to obtain (ITO) the warrant lacked reasonable and probable grounds such that the search violated s. 8 of the Charter - The trial judge held that the warrant was properly issued and the evidence obtained was admissible - The Nova Scotia Court of Appeal dismissed the accused's appeal - The accused challenged the trial judge's reasoning by "deconstructing the ITO" - However, the reliability of the information in the ITO was assessed by recourse to "the totality of the circumstances", including the degree of detail, the informer's source of knowledge and other indicia such as the informer's past reliability and confirmation from other sources - The body of evidence was not "anatomized for a segregated analysis of each fragment" - Viewed as a whole, the ITO's "bits may be cross-confirmatory" - Here, the sources indicated that the accused had been dealing drugs and that he had three firearms - The ITO also contained facts regarding the accused's criminal record and three home invasions at the accused's property and the affiant's statement that drug dealers often kept firearms or other weapons for protection - The warrant was properly issued - See paragraphs 15 to 33.

Narcotic Control - Topic 2027

Search and seizure - Search warrants - Form and contents - [See Criminal Law - Topic 3183 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Criminal Law - Topic 3183 ].

Cases Noticed:

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. 14].

R. v. Durling (J.C.) (2006), 249 N.S.R.(2d) 229; 792 A.P.R. 229; 2006 NSCA 124, refd to. [para. 14].

R. v. Shiers (J.G.) (2003), 219 N.S.R.(2d) 196; 692 A.P.R. 196; 2003 NSCA 138, refd to. [para. 14].

R. v. Morelli - see R. v. U.P.M.

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1, refd to. [para. 15].

R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 337 B.C.A.C. 268; 576 W.A.C. 268, refd to. [para. 17].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1; 1998 CarswellNS 489 (C.A.), refd to. [para. 18].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 27].

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 CarswellAlta 94, refd to. [para. 27].

Counsel:

J. Patrick L. Atherton and David Dalrymple, for the appellant;

Shaun O'Leary, for the respondent.

This appeal was heard at Halifax, N.S., on November 27, 2014, by Hamilton, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. On December 10, 2014, Fichaud, J.A., delivered the following reasons for judgment for the court.