R. v. Luft (G.K.), (1996) 192 A.R. 283 (QB)

• Judge: Moshansky, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 05, 1996
• Citations: (1996), 192 A.R. 283 (QB)

R. v. Luft (G.K.) (1996), 192 A.R. 283 (QB)

MLB headnote and full text

Her Majesty the Queen (appellant) v. Gerald K. Luft (respondent)

(No. 50860006P10101-0102; No. 9601-0120s1)

Indexed As: R. v. Luft (G.K.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Moshansky, J.

November 5, 1996.

Summary:

Luft was charged with unlawful impor­tation of firearms and possession of unlaw­fully imported firearms.

Luft was acquitted by directed verdict pursuant to a motion of nonsuit. The Crown appealed.

The Alberta Court of Queen's Bench dis­missed the appeal.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The trial judge excluded from the evi­dence materials seized under a search warrant because there was insuffi­cient evidence before the authorizing judge to link the accused with the address men­tioned in the warrant - The accused was acquitted - The Crown appealed arguing that the judge failed to exercise his discre­tion judicially and erred in law in exclud­ing the seized materials as evidence at the trial pursuant to s. 24(2) of the Charter - The Alberta Court of Queen's Bench dis­missed the appeal - See paragraphs 10 and 19.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suf­ficiency of form and content - The trial judge excluded from the evidence materials seized under a search warrant because there was insufficient evidence before the authorizing judge to link the accused with the address mentioned in the warrant - The accused was acquitted - The Crown appealed arguing "that the trial judge erred in law as to the standard of review applicable to his reconsideration of the sufficiency of the grounds relied upon to obtain the search warrant and in his subsequent ruling that such grounds were insufficient to justify issuance of a war­rant" - The Alberta Court of Queen's Bench dismissed the appeal - See para­graphs 9 to 18.

Criminal Law - Topic 4440

Procedure - Verdicts - Discharges and dismissals - Directed verdicts - [See Criminal Law - Topic 4556 ].

Criminal Law - Topic 4556

Procedure - Trial - Motions - Motion for a nonsuit, general (for dismissal at close of Crown's case) - The trial judge directed an acquittal pursuant to a nonsuit motion - The Crown appealed arguing that the judge failed to apply the correct test for the nonsuit motion - The Alberta Court of Queen's Bench dismissed the appeal: "In the absence of concrete evidence to the contrary an appellate court must presume that the trial judge applied the correct test." - In any event, the court stated that there was insufficient evidence at the close of the Crown's case on which a properly instructed jury could convict - See para­graphs 24 to 26.

Customs - Topic 8007

Offences and penalties - General - Smug­gling defined - Luft lived in Calgary - Boyd, a Canadian citizen, lived in Texas - Boyd was returning to Canada - Luft wanted to import firearms - He needed a Firearms Acquisition Certificate - Boyd did not need such Certificate - Luft asked Boyd to buy him the firearms and to declare them as part of his personal and household effects when he crossed the border - Before the firearms crossed the border, Luft successfully applied for a Firearms Acquisition Certificate - Boyd failed to declare Luft's firearms - Luft was charged with smuggling - The Alberta Court of Queen's Bench affirmed that smuggling was a full mens rea offence and that Luft did not have the mens rea to commit the offence - The court upheld Luft's acquittal - See paragraphs 3 to 8, 20 to 23.

Cases Noticed:

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193, consd. [para. 12].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, refd to. [para. 13].

R. v. Hobbs (M.L.) and Holt (B.G.) (1994), 155 A.R. 58; 73 W.A.C. 58 (C.A.), refd to. [para. 13].

Baron et al. v. Minister of National Rev­enue et al., [1993] 1 S.C.R. 416; 146 N.R. 270; 78 C.C.C.(3d) 510; 99 D.L.R.(4th) 350, refd to. [para. 17].

R. v. Church of Scientology of Toronto and Zaharia (1987), 18 O.A.C. 321; 31 C.C.C.(3d) 449 (C.A.), refd to. [para. 17].

R. v. Turcotte, [1988] 2 W.W.R. 97; 60 Sask.R. 289 (C.A.), refd to. [para. 17].

R. v. Doliente (I.B.) (1996), 184 A.R. 131; 122 W.A.C. 131; 40 Alta. L.R.(3d) 78 (C.A.), refd to. [para. 17].

R. v. Goncalves (H.M.) (1992), 131 A.R. 68; 25 W.A.C. 68 (C.A.), revd. [1993] 2 S.C.R. 3; 150 N.R. 384; 135 A.R. 97; 33 W.A.C. 97; 81 C.C.C.(3d) 240, consd. [para. 19].

Canada (Attorney General) v. Riddell (1973), 11 C.C.C.(2d) 493 (Que. C.A.), refd to. [para. 22].

R. v. Ireco Canada II Inc. and Biamonte (1988), 29 O.A.C. 161; 43 C.C.C.(3d) 482 (C.A.), refd to. [para. 22].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104; 52 C.C.C.(2d) 481, refd to. [para. 22].

R. v. Litchfield (1992), 120 A.R. 391; 8 W.A.C. 391 (C.A.), consd. [para. 25].

Statutes Noticed:

Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, sect. 155 [para. 1]; sect. 159 [para. 2].

Counsel:

J.P. Petch, Q.C., for the appellant;

P.C. Fagan, for the respondent.

This appeal was heard by Moshansky, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on November 5, 1996.