R. v. McLellan Supply Ltd., (1985) 69 A.R. 118 (QB)

• Judge: Yanosik, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 12, 1985
• Jurisdiction: Alberta
• Citations: (1985), 69 A.R. 118 (QB)

R. v. McLellan Supply Ltd. (1985), 69 A.R. 118 (QB)

MLB headnote and full text

Her Majesty The Queen v. 215626 Alberta Ltd., formerly known as McLellan Supply Ltd., and S.F. Scott Manufacturing Company Ltd.

(No. 8508-000044C2)

Indexed As: R. v. McLellan Supply Ltd. and Scott (S.F.) Manufacturing Co. (No. 2) (Voir Dire)

Alberta Court of Queen's Bench

Judicial District of Medicine Hat

Yanosik, J.

December 12, 1985.

Summary:

Two corporations were charged with offences under s. 32.2(2) of the combines investigation Act. The accused applied to the Alberta Provincial Court to stay the proceedings and to quash the information, alleging a violation of s. 11(b) of the Charter. The Alberta Provincial Court, in a decision reported 64 A.R. 6, dismissed the application on the ground that it lacked jurisdiction to grant a remedy under s. 24(1) of the Charter.

At trial the Crown sought to admit copies of documents seized by a Combines Investigation officer during a search and seizure. The seizure was done pursuant to an authorization issued by the Director of Investigation and Research of the Combines Investigation Branch under s. 10 of the Combines Investigation Act. The accused objected to the documents' admission. On a voir dire the Alberta Court of Queen's Bench held that the search and seizure was contrary to s. 8 of the Charter and that the documents should be excluded under s. 24(2) of the Charter.

For a decision on the merits of this case, see 69 A.R. 132.

Civil Rights - Topic 1646

Property - Unreasonable search and seizure - Defined - The Alberta Court of Queen's Bench held that a post-Charter search and seizure of documents from a company by a combines investigation officer pursuant to an authorization issued by the Director of Investigation and Research of the Combines Investigation Branch under s. 10 of the Combines Investigation Act was illegal - The court noted that the seizure was carried out without statutory authority because s. 10 was invalid immediately upon proclamation of the Charter (Southam Inc. v. Hunter, 55 N.R. 241; 55 A.R. 291) - See paragraphs 20, 21 - The court also held that the search was unreasonable because the Crown failed to rebut the presumption that a warrantless search is prima facie unreasonable - See paragraphs 22 to 25.

Civil Rights - Topic 8364

Charter - Denial of rights - Remedies - Burden of proof - The Alberta Court of Queen's Bench stated that the onus is on the person who wishes to have evidence excluded to establish that a Charter right or freedom has been infringed or denied and that the admission of the evidence obtained would bring the administration of justice into disrepute - See paragraph 20.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - An accused applied under s. 24(1) of the Charter to have excluded evidence allegedly obtained in an illegal search and seizure - The Alberta Court of Queen's Bench stated that s. 24(2) and not 24(1) was intended to be the exhaustive section for the remedy of exclusion of evidence - The court stated that if evidence was obtained contrary to the Charter and its admission would bring the administration of justice into disrepute, then the evidence must be excluded - The court stated that once both tests are met the trial judge does not have a discretion to exclude or admit the evidence, he must exclude it - See paragraph 19.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - "Good faith" - The Alberta Court of Queen's Bench discussed whether the "good faith" rule was a consideration where a judge was asked to exclude evidence under s. 24(2) of the Charter - The rule allegedly provided that the administration of justice would not be brought into disrepute by the admission of evidence obtained by a person in authority who was acting and relying upon statutory authority that had not yet been declared to be of no force and effect - See paragraphs 26 to 37.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - "Good faith" - The Director of Investigation and Research of the Combines Investigation Branch authorized a search and seizure of an Alberta company's property under s. 10 of the Combines Investigation Act in June 1982 - S. 10 was subsequently declared invalid - The Alberta Court of Queen's Bench held that the seizure was contrary to the Charter and the evidence would be excluded under s. 24(2) - The court rejected a Crown argument that the evidence should be admitted because the Director acted in "good faith" in that he thought he had statutory authority to authorize the seizure - The court held that the Director knew or ought to have known that the constitutional validity of s. 10 was in issue when he authorized the seizure - See paragraphs 26 to 40.

Cases Noticed:

Southam Inc. v. Hunter, [1982] 4 W.W.R. 673; 42 A.R. 109, affd. 42 A.R. 108 (C.A.), second appeal decision [1983] 3 W.W.R. 385; 42 A.R. 93 (C.A.), affd. [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 241; 14 C.C.C.(3d) 197; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R. 193 consd. [paras. 9 et seq].

R. v. Therens [1985] 4 W.W.R. 286; [1985] 1 S.C.R. 613; 40 Sask.R. 122; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655, consd. [paras. 19, 29].

Blackwoods Beverages Ltd. et al. v. Canada et al. (1984), 30 Man.R.(2d) 249; 16 C.C.C.(3d) 363, refd to. [para. 21].

R. v. Pohoretsky, R. v. Ramage, and R. v. L.A.R., [1985] 3 W.W.R. 289; 32 Man.R.(2d) 291, refd to. [para. 23].

R. v. Simmons (1984), 3 O.A.C. 1; 11 C.C.C.(3d) 183; 45 O.R.(2d) 609; 26 M.V.R. 168; 39 C.R.(3d) 223; 7 D.L.R.(4th) 719, refd to. [para. 28].

R. v. Perras, R. v. Robertson, R. v. Lastuka, 62 A.R. 226, refd to. [paras. 30, 31].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 8, sect. 24.

Combines Investigation Act, R.S.C. 1970, c. C-23, sect. 10.

Authors and Works Noticed:

Manning, Rights, Freedoms and The Courts (1983), p. 299 [para. 24].

Counsel:

G. Bourgard, for the Crown;

D. Kolody, for the accused.

This voir dire was held before Yanosik, J., of the Alberta Court of Queen's Bench, who orally delivered the following decision on December 12, 1985: