R. v. Oland (D.J.), (2015) 446 N.B.R.(2d) 28 (TD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 10, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 446 N.B.R.(2d) 28 (TD);2015 NBQB 243

R. v. Oland (D.J.) (2015), 446 N.B.R.(2d) 28 (TD);

    446 R.N.-B.(2e) 28; 1168 A.P.R. 28

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. AP.002

Renvoi temp.: [2016] N.B.R.(2d) TBEd. AP.002

Dennis James Oland (applicant) v. Her Majesty The Queen (respondent)

(SJCR-2-2015; 2015 NBQB 243; 2015 NBBR 243)

Indexed As: R. v. Oland (D.J.)

Répertorié: R. v. Oland (D.J.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Walsh, J.

June 10, 2015.

Summary:

Résumé:

The accused was charged with the second degree murder of his father following a two year police investigation which included the obtaining and execution of 17 search warrants. The accused applied under s. 24(2) of the Charter to exclude the evidence obtained under three of those search warrants on the ground that they infringed the accused's s. 8 Charter right to be secure against unreasonable search and seizure. Two of the warrants authorized a search of the accused's residence and property (House warrant). The third warrant authorized a search of his workplace computer (Wood Gundy warrant). The issues were: whether the Informations to Obtain the three search warrants provided reasonable grounds to believe that the places to be searched would afford evidence respecting the murder (Criminal Code, s. 487(1)); whether the House warrant, if validly issued, gave police the additional inherent authority to forensically examine seized items; whether reasonable grounds existed to support the additional General Warrant and, if so, whether the police complied with the terms of that General Warrant; whether the police complied with the terms of the Wood Gundy warrant; if the Woody Gundy warrant was validly issued and properly executed, whether the police complied with the post-execution detention requirements of ss. 489.1 and 490; and whether, if the accused's s. 8 Charter rights were infringed, any of the tainted evidence should be excluded under s. 24(2).

The New Brunswick Court of Queen's Bench, Trial Division, allowed the application in part. The court ruled that: "1. The House Warrant was valid (facially) and remains valid (sub-facially); 2. There was lawful authority for the forensic examinations of the things seized under the House Warrant; 3. The Wood Gundy Warrant was valid (facially) and remains valid (sub-facially), however, the 'network H-Drive' evidence was obtained beyond the term of the search warrant contrary to Section 8 of the Charter of Rights and Freedoms; 4. The 'network H-Drive' is excluded from use at trial because its admission in all the circumstances would bring the administration of justice into disrepute within the meaning of Section 24 (2) of the Charter".

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Criminal Law - Topic 3054 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 3054 ].

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - During a murder investigation, the police lawfully seized, inter alia, the accused's brown jacket allegedly worn at the murder scene - The jacket was seized under a warrant issued under s. 487 of the Criminal Code - The jacket was subsequently subjected to forensic examination (DNA testing for blood) - The accused argued that s. 487 permitted the search for and seizure of the jacket, but did not authorize forensic testing - The accused argued that forensic testing required that the police obtain a general warrant under s. 487.01, which the police had obtained but allowed to lapse prior to the testing - The New Brunswick Court of Queen's Bench, Trial Division, held that the s. 487 warrant authorized the police to also forensically examine the items seized based on the warrant and the related search warrant provisions of ss. 489.1 and 490 - Further judicial authorization by way of a general warrant under s. 487.01 was not required - See paragraphs 174 to 206.

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - A search warrant authorized the police to search the accused's workplace and seize his workplace computer - The warrant gave the police 60 days "to gather evidence of the offence" - With the employer's cooperation, the police seized the computer within 60 days, but it contained no personal information - The employer advised that the information was on the employers' internal "H" drive - A copy of the "H" drive information was provided - The accused challenged that production of information as constituting an unreasonable search and seizure (Charter, s. 8), where the warrant's 60 day time limit had expired before the information was provided - The New Brunswick Court of Queen's Bench, Trial Division, held that the "H" drive had not been provided to the police prior to the warrant expiring - The evidence was not "gathered" by the police within the 60 days - The "H" drive information was obtained beyond the judicial authorization, violating the accused's s. 8 Charter right to be secure from an unreasonable search and seizure - The police should have obtained a new judicial authorization - The court excluded the "H" drive information from evidence under s. 24(2), as its admission would bring the administration of justice into disrepute - See paragraphs 239 to 269.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The New Brunswick Court of Queen's Bench, Trial Division, in reviewing the standard of review on the issuance of search warrants, referenced the following from R. v. U.P.M. (2010 SCC): "In reviewing the sufficiency of a warrant application ... 'the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued' ... The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place." - The court stated that "This test remains the same whether or not the ITO is amplified or otherwise modified upon review, as for example where information is redacted from or added to the ITO for the purpose of the review" - See paragraphs 18 to 19.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The New Brunswick Court of Queen's Bench, Trial Division, stated that "sitting in review the judge is not making a de novo determination. Rather, the reviewing judge is only attempting to ascertain whether in law the authorizing judge could have found reasonable grounds existed ... the threshold standard for the authorizing judge of reasonable grounds translates as to whether there is credibly-based probability for the assertions made by the police. ... The reviewing judge must also be cognizant that an authorizing judge is not required to follow any particular line of reasoning or pathway of logic in deciding to issue a warrant, provided that there is a path that does exist that is logical, founded on sufficiently credible evidence and that any deductions open on the evidence are legitimate inferences, not speculative guesses, and that the path eventually does lead to reasonable grounds to support the statutory prerequisites. In other words, an unauthorizing judge is not bound to follow only one path where other inferences may exist." - See paragraphs 24 to 25.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The New Brunswick Court of Queen's Bench, Trial Division, set out the process for reviewing the issuance of search warrants where there was both a facial challenge (based solely on the Information to Obtain) and a sub-facial challenge (based on the record before the authorizing judge amplified on review) - See paragraph 26.

Criminal Law - Topic 3118

Special powers - Setting aside search warrants - General - Evidence (incl. amplification evidence) - The New Brunswick Court of Queen's Bench, Trial Division, stated that "An ITO can contain information widely drawn from many different sources and amount to direct or circumstantial evidence or a blend of both, the totality of which is aimed at establishing on reasonable grounds the statutory prerequisites. ... Neither the authorizing judge nor the reviewing judge is entitled to speculate in the evidentiary assessment. Both, though, are entitled to infer, i.e. draw 'a logical and reasonable conclusion of fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exists from the established facts' ... In the context of a review it is not whether this Court would have drawn a particular inference on the evidence, but whether it was open to the authorizing judge to draw the inference." - See paragraphs 20 to 21.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - The accused was charged with the second degree murder of his father following a two year police investigation which included the obtaining and execution of 17 search warrants - The accused applied under s. 24(2) of the Charter to exclude the evidence obtained under three of those search warrants on the ground that they infringed the accused's s. 8 Charter right to be secure against unreasonable search and seizure - Two of the warrants authorized a search of the accused's residence and property (House warrant) and his office for his work computer (Wood Gundy warrant) - The accused challenged the facial validity of the warrants under s. 487(1) of the Criminal Code - The New Brunswick Court of Queen's Bench, Trial Division, held that the warrants were facially valid - The Information to Obtain contained sufficient information upon which the issuing judge could have issued the warrant - The court stated that "the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO. ... there was sufficiently reliable evidence upon which the authorizing judge could find reasonable grounds to believe that Dennis Oland killed his father, that he committed the criminal offence of murder in doing so, that he was wearing a brown sports jacket at the time of the killing, that the jacket would afford evidence with respect to the commission of that offence, and that the jacket was then in or on Dennis Oland's identified residential property." - See paragraphs 66 to 97, 207.

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood - Misleading statements or omissions in sworn information - The accused was charged with the second degree murder of his father following a two year police investigation which included the obtaining and execution of 17 search warrants - The accused applied under s. 24(2) of the Charter to exclude the evidence obtained under three of those search warrants on the ground that they infringed the accused's s. 8 Charter right to be secure against unreasonable search and seizure - Two of the warrants authorized a search of the accused's residence and property (House warrant) - The New Brunswick Court of Queen's Bench, Trial Division, found the warrants facially valid - The accused also challenged the sub-facial validity of the warrants, arguing that after the correction of inaccurate statements and exaggerated assertions likely to mislead were excised from the Information to Obtain (ITO), the remaining evidence in the ITO could not have supported the issuance of the warrants - There was materially erroneous information respecting cell phone "roaming error" in the ITO that had to be excised and corrected - There was also information that should have been disclosed in the ITO that was relevant and material to the issue of whether the accused was lying or innocently mistaken when he told police that he was wearing a blue jacket when he visited his father (he was actually wearing a brown jacket) - There were other, less important, errors and omissions - However, the court held that the material errors and omissions, once excised and corrected (i.e., amplified record), did not invalidate the issuance of the warrants - The authorizing judge "could still" have issued the warrants despite the errors and omissions now identified - See paragraphs 66 to 173.

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood - Misleading statements or omissions in sworn information - The accused was charged with the second degree murder of his father following a two year police investigation which included the obtaining and execution of 17 search warrants - The accused applied under s. 24(2) of the Charter to exclude the evidence obtained under three of those search warrants on the ground that they infringed the accused's s. 8 Charter right to be secure against unreasonable search and seizure - One of the warrants authorized the search of the accused's office and the seizure of his work computer - The accused challenged the sub-facial validity of the warrant, arguing that after the correction of inaccurate statements and exaggerated assertions likely to mislead were excised from the Information to Obtain (ITO), the remaining evidence in the ITO could not have supported the issuance of the warrant - The New Brunswick Court of Queen's Bench, Trial Division, held that the warrant was sub-facially invalid - There were material omissions in the ITO - However, "what is revealed is that a pathway remains open such that the authorizing judge could still have issued the Wood Gundy Warrant. Those omissions, if known to the authorizing judge, would exert some additional influence on him in his decision as to whether to issue the warrant, but not, taken with the totality of the remaining information in the ITO, to the extent that the authorizing judge 'could' not have issued the search warrant in accordance with Section 487 of the Criminal Code." - See paragraphs 207 to 226.

Cases Noticed:

R. v. Butters, 2014 ONCJ 228, refd to. [para. 13].

R. v. Sadikov (S.) et al. (2014), 314 O.A.C. 357; 2014 ONCA 72, refd to. [para. 14].

R. v. Campbell (N.M.) (2010), 270 O.A.C. 349; 2010 ONCA 588, affd. (2011), 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 17].

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. 17].

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; 2010 SCC 8, refd to. [para. 18].

R. v. Pitre (M.S.) (2011), 381 N.B.R.(2d) 203; 984 A.P.R. 203; 2011 NBCA 106, refd to. [para. 19].

R. v. Allain (S.) (1998), 205 N.B.R.(2d) 201; 523 A.P.R. 201 (C.A.), refd to. [para. 20].

R. v. Kelly (F.T.) (2010), 367 N.B.R.(2d) 1; 946 A.P.R. 1; 2010 NBCA 89, refd to. [para. 21].

R. v. Libby (A.) (2008), 330 N.B.R.(2d) 14; 845 A.P.R. 14; 2008 NBQB 36, refd to. [para. 24].

R. v. Jacobson (M.G.) (2006), 209 O.A.C. 162 (C.A.), refd to. [para. 25].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 66].

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. 92].

R. v. Nguyen (D.V.) (2011), 281 O.A.C. 118; 2011 ONCA 465, refd to. [para. 99].

R. v. Land (1990), 55 C.C.C.(3d) 382 (Ont. H.C.), refd to. [para. 99].

R. v. Boussoulas 2014 ONSC 5542, refd to. [para. 100].

R. v. Bonnell (C.) (2011), 410 N.B.R.(2d) 47; 1065 A.P.R. 47; 2011 NBQB 376, refd to. [para. 100].

R. v. Arsenault (E.J.) (2009), 344 N.B.R.(2d) 113; 884 A.P.R. 113; 2009 NBCA 29, refd to. [para. 154].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 171].

R. v. Ebanks (N.) (2009), 256 O.A.C. 222; 2009 ONCA 851, refd to. [para. 172].

Canada (Attorney General) v. Foster et al. (2006), 217 O.A.C. 173; 215 C.C.C.(3d) 59 (C.A.), refd to. [para. 182].

R. v. Kaba, 2008 QCCA 16, refd to. [para. 187].

CanadianOxy Chemicals Ltd. et al. v. Canada (Attorney General) et al., [1999] 1 S.C.R. 743; 237 N.R. 373; 122 B.C.A.C. 1; 200 W.A.C. 1, refd to. [para. 187].

R. v. Backhouse (J.) (2005), 195 O.A.C. 80; 194 C.C.C.(3d) 1 (C.A.), refd to. [para. 187].

R. v. Weir (D.T.) (2001), 281 A.R. 333; 248 W.A.C. 333; 2001 ABCA 181, refd to. [para. 187].

R. v. Nicolosi (J.) (1998), 110 O.A.C. 189; 127 C.C.C.(3d) 176 (C.A.), refd to. [para. 187].

R. v. Giles (D.F.) et al., [2007] B.C.T.C. Uned. H63; 2007 BCSC 1147, refd to. [para. 187].

R. v. J.T. (2006), 313 N.B.R.(2d) 1; 809 A.P.R. 1; 2006 NBPC 35, refd to. [para. 192].

R. v. Tripp (J.) - see R. v. J.T.

R. v. Guiller, [1985] O.J. No. 2442 (Dist. Ct.), refd to. [para. 193].

R. v. C.D. (2005), 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258; 2005 SCC 78, refd to. [para. 200].

R. v. Barwell, [2013] O.J. No. 3743 (Ct. J.), refd to. [para. 201].

R. v. Tennina (D.) et al., [2008] O.A.C. Uned. 356; 2008 ONCA 498, refd to. [para. 201].

Conrad v. Halifax (County) (1994), 130 N.S.R.(2d) 305; 367 A.P.R. 305 (S.C.), refd to. [para. 201].

R. v. Vienneau (R.) (2010), 361 N.B.R.(2d) 34; 931 A.P.R. 34; 2010 NBPC 19, refd to. [para. 202].

R. v. TELUS Communications Co. (2013), 442 N.R. 1; 304 O.A.C. 1; 2013 SCC 16, refd to. [para. 205].

R. v. Cole (R.) et al. (2012), 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 230].

R. v. Pasian, 2015 ONSC 1557, refd to. [para. 232].

R. v. Ballendine (K.D.) (2011), 304 B.C.A.C. 20; 513 W.A.C. 20; 2011 BCCA 221, refd to. [para. 242].

R. v. Fan (W.X.), [2013] B.C.T.C. Uned. 1406; 2013 BCSC 1406, refd to. [para. 242].

R. v. Jones (R.) (2011), 285 O.A.C. 25; 2011 ONCA 632 (C.A.), refd to. [para. 246].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 254].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al. (1990), 106 N.R. 161; 39 O.A.C. 161 (S.C.C.), refd to. [para. 261].

R. v. Côté (A.) (2011), 421 N.R. 112; 2011 SCC 46, refd to. [para. 263].

R. v. Bonnell (C.) (2012), 410 N.B.R.(2d) 95; 1065 A.P.R. 95; 2012 NBQB 24, refd to. [para. 263].

R. v. Buhay (M.A.) (2003), 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 264].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487(1) [para. 11]; sect. 489.1(1) [para. 191].

Counsel:

Avocats:

Gary A. Miller, Q.C., Alan Gold and James R. McConnell, for Dennis James Oland;

John Henheffer, Patrick Wilbur and Derek Weaver, for the Crown.

This application was heard on May 5-7, 2015, before Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on June 10, 2015.