R. v. A.M.B., (2014) 443 Sask.R. 57 (PC)

• Judge: Henning, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: April 10, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 443 Sask.R. 57 (PC);2014 SKPC 78

R. v. A.M.B. (2014), 443 Sask.R. 57 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AP.056

Her Majesty the Queen v. A.M.B.

(Information No. 31461438; 2014 SKPC 78)

Indexed As: R. v. A.M.B.

Saskatchewan Provincial Court

Henning, P.C.J.

April 10, 2014.

Summary:

The accused was charged with invitation to sexual touching. She moved to exclude the evidence resulting from the execution of a search warrant, asserting that, inter alia, the information to obtain the warrant was invalid thereby infringing her s. 8 Charter rights.

The Saskatchewan Provincial Court ruled that the search was unlawful and excluded the resulting evidence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by a publication ban under s. 486(4) of the Criminal Code and Maritime Law Book's editorial policy.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers or cellphones) - The accused was charged with invitation to sexual touching - She moved to exclude the evidence resulting from the execution of a search warrant, asserting that, inter alia, the search of her computer immediately on her premises was unlawful because of the rules established in R. v. Vu (T.L.) (2013 SCC), or because of the wording of the warrant which directed that items seized were to be returned to the issuing or another justice - The Saskatchewan Provincial Court agreed - Under section 487(1)(d) of the Criminal Code, a justice who issued a warrant had to either require that the individual executing the warrant "bring the seized thing before, or make a report in respect thereof to, the justice or some other justice" - As the justice in this case did not require a report, and instead required the seized item to be brought before him, that logically precluded the search without further consideration and authorization - Many items could be examined superficially before being turned over to a justice without infringing such a direction, but computers were complex with much data that might be relevant and highly personal, with the result that special handling was reasonable and necessary - In any event, the wording chosen was clear, and the items were to be brought to the justice - The search was also unlawful because of the failure to obtain specific authorization to search the computer as required by Vu - See paragraphs 34 to 38.

Civil Rights - Topic 1609

Property - Search warrants - To search computers or cellphones - [See Criminal Law - Topic 1524 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with invitation to sexual touching - She moved to exclude photographic evidence resulting from the execution of a search warrant at her residence - The Saskatchewan Provincial Court concluded that the search was unlawful due to defects in the Information to Obtain (ITO) and, alternatively, the immediate search of the accused's computer at her residence was unlawful both on the express wording of the warrant and for the failure to obtain specific authorization to search the computer - The court excluded the photographic evidence - In addressing the egregiousness of the search, the court noted that accused's s. 8 Charter rights were violated by a failure to comply with the warrant's wording - Additionally the ITO was poorly drafted in the technical sense and contained dubious material with important information omitted - There were also errors in the execution of the warrant - The informational errors in the ITO did not appear to have resulted from bad faith, but showed poor investigation and negligence in not fully presenting information to the justice and a low standard in the warrant's execution - The numerous inaccuracies and failures on the part of the investigators negated good faith due to serious and continuing negligence - The unlawful search of the accused's home and computer had a personal and emotional impact on her and resulted in her being arrested for obstruction when she objected to the computer search - The resulting evidence was prescriptive, but reliable - The photographs were corroborative of the alleged offence, but not conclusive - Other evidence would have to be considered - Exclusion would not be tantamount to a dismissal of the charge - The negative impact of exclusion on the administration of justice was diminished compared to cases where the Crown's case rested entirely on admissions in an excluded statement or certificate of analysis - See paragraphs 38 to 48.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - [See Civil Rights - Topic 1524 ].

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - The accused was charged with invitation to sexual touching - She moved to exclude the evidence resulting from the execution of a search warrant, asserting that, inter alia, the Information to Obtain (ITO) the warrant was invalid thereby infringing her s. 8 Charter rights - The Saskatchewan Provincial Court noted that there was an issue concerning the omission of information from the ITO that potentially minimized the likelihood of the commission of an offence - Given the accused's son's description of the massage that he gave the accused, and the son's indication that pictures existed, a justice could have ignored the omitted fact that the son did not believe that he was sexually abused - However, the omitted fact concerning the dispute of the accused and the son's father and the father's previous allegations against the accused were relevant, particularly given that none of those previous allegations resulted in a conviction - They were potentially relevant to the possibility of a manipulation of the complaint - This was compounded by the fact that the ITO relied only on the son's evidence, and the other adult present at the incident in question was not disclosed, nor was he interviewed - There was also a misleading statement in the ITO concerning the types of pictures searched for that suggested an investigation of more serious activity not supported by the information provided - Also, the inclusion of information respecting the accused's modelling activities added no information regarding the offence, but potentially suggested unwarranted sexual inferences - The affidavit also failed to differentiate information and belief, which was not sufficient to nullify the affidavit, but was a potentially confusing for the justice who weighed the information - The cumulative effect of the errors permitted a conclusion that the ITO could not, in the form presented, support the issue of the warrant by a justice acting judicially - That conclusion rendered the warrant a nullity, and the search unlawful - See paragraphs 31 to 33.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - [See Criminal Law - Topic 3046 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Criminal Law - Topic 3046 ].

Criminal Law - Topic 3148

Special powers - Power of search - Scope of power - [See Civil Rights - Topic 1524 ].

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 3185

Special powers - Setting aside search warrants - Grounds - Failure to state belief (incl. grounds for belief) - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 3193

Special powers - Setting aside search warrants - Grounds - Failure to file report or return seized items to a justice respecting the search - [See Civil Rights - Topic 1524 ].

Cases Noticed:

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 5].

R. v. Jones (R.) (2011), 285 O.A.C. 25; 2011 ONCA 632, refd to. [para. 8].

R. v. Vu (T.L.) (2013), 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 12].

R. v. Borowski (1990), 66 Man.R.(2d) 49; 57 C.C.C.(3d) 87 (C.A.), refd to. [para. 25].

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. 31].

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

R. v. Colet, [1981] 1 S.C.R. 2; 35 N.R. 227, refd to. [para. 36].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 1997 CanLII 384, refd to. [para. 39].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 1987 CanlII 84, refd to. [para. 72].

Counsel:

Carmen Choi, for the Crown;

Christina Skibinsky, for the accused.

This motion was heard at Regina, Saskatchewan, by Henning, P.C.J., of the Saskatchewan Provincial Court, who delivered the following ruling on April 10, 2014.