R. v. Morrissey (M.D.), (2012) 363 Nfld. & P.E.I.R. 140 (NLTD(G))

• Judge: Paquette, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 11, 2012
• Jurisdiction: Newfoundland and Labrador
• Citations: (2012), 363 Nfld. & P.E.I.R. 140 (NLTD(G))

R. v. Morrissey (M.D.) (2012), 363 Nfld. & P.E.I.R. 140 (NLTD(G));

    1129 A.P.R. 140

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.043

Michael David Morrisey (applicant) v. Her Majesty the Queen (respondent)

(201101G6457; 2012 NLTD(G) 135)

Indexed As: R. v. Morrissey (M.D.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Paquette, J.

August 9, 2012.

Summary:

The accused pleaded guilty to possession of cocaine for the purpose of trafficking, possession of cannabis marijuana for the purpose of trafficking and possession of cannabis marijuana. The accused applied to exclude evidence resulting from a search of his residence, asserting that the Information to Obtain the search warrant was deficient and the search violated his s. 8 Charter rights.

The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the accused's s. 8 rights were not violated.

Editor's note: for a related decision involving this accused see 337 Nfld. & P.E.I.R. 243; 1047 A.P.R. 243.

Criminal Law - Topic 3042.1

Special powers - Search warrants - When available - An accused charged with drug related offences asserted that the Information to Obtain (ITO) a warrant to search his residence did not disclose reasonable and probable grounds to support the warrant - The officer who swore the ITO relied on information from Source A, Source B and an anonymous Crime Stoppers' tip - Source A's information was received on the day of the search and provided details respecting the accused's vehicle and residence which were corroborated by a police investigation - Source A indicated that the accused was selling cocaine and marijuana that day from his residence - Source B had provided information two years earlier that the accused was selling drugs from the Peter Easton Pub - The Crime Stopper's tip was eight months old and stated that, inter alia, the accused was selling cocaine and marijuana from both the Pub and his residence, the address of which was unknown - The officer also relied on information received from the Integrated Constabulary Automated network system respecting the accused being a complainant in a July 2008 incident at the Pub and his being a suspect for possession of controlled drugs in 2002 - The Newfoundland and Labrador Supreme Court, Trial Division (General), rejected the accused's assertion - The information received from Source B, the Crime Stopper's tip and the Integrated Constabulary Automated network system did not support a credibly-based probability, which replaced suspicion, that the accused would have drugs for sale at his residence on the day of the search - However, the authorizing judge could have reasonably inferred from the totality of circumstances presented in the ITO that that credibly-based probability existed based on the information provided by Source A - The information was not unreliable solely because Source A had a criminal record or because Source A had received a monetary reward for the information - While Source A had only been known by the officer for two months, there was no prescribed minimum period in which to assess reliability by itself - Had Source A's information been less current it was unlikely that it would have sufficed - See paragraphs 30 to 43.

Criminal Law - Topic 3051

Special powers - Search warrants - Narcotic control - [See Criminal Law - Topic 3042.1 ].

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - An accused asserted that a warrant to search his residence was invalid as it did not set out a time limitation for the search - The Newfoundland and Labrador Supreme Court, Trial Division (General), rejected the assertion - The absence of a specification of a time limit did not render the warrant or the resulting search invalid - See paragraphs 44 and 45.

Criminal Law - Topic 3098

Special powers - Issue of search warrants - Contents of search warrant - [See Criminal Law - Topic 3042.1 and Criminal Law - Topic 3046 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See Criminal Law - Topic 3042.1 and Criminal Law - Topic 3046 ].

Narcotic Control - Topic 2027

Search and seizure - Search warrants - Form and contents - [See Criminal Law - Topic 3042.1 and Criminal Law - Topic 3046 ].

Narcotic Control - Topic 2028

Search and seizure - Search warrants - Issuance of - [See Criminal Law - Topic 3042.1 and Criminal Law - Topic 3046 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Criminal Law - Topic 3042.1 and Criminal Law - Topic 3046 ].

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 6].

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. 6].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 7].

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; 2000 SCC 65, refd to. [para. 8].

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. 9].

R. v. Saunders (G.T.) (2003), 232 Nfld. & P.E.I.R. 22; 690 A.P.R. 22; 2003 NLCA 63, refd to. [para. 10].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, affing (1986), 17 O.A.C. 141; 30 C.C.C.(39) 207 (C.A.), refd to. [para. 23].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 24].

R. v. Hill (M.A.) (2001), 190 N.S.R.(2d) 311; 594 A.P.R. 311 (Prov. Ct.), refd to. [para. 45].

Authors and Works Noticed:

Fontana, James A., and Keeshan, David, The Law of Search and Seizure in Canada (6th Ed. 2005), generally [para. 45].

Counsel:

Michael King, for Mr. Morrissey;

John D. Brooks, Q.C., for Her Majesty the Queen.

This application was heard at St. John's, N.L., on June 11, 2012, by Paquette, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment orally on August 9, 2012.