R. v. Penfold (E.F.), (1999) 242 A.R. 298 (QB)

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 12, 1999
• Citations: (1999), 242 A.R. 298 (QB)

R. v. Penfold (E.F.) (1999), 242 A.R. 298 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. AP.070

Her Majesty The Queen (respondent) v. Earl Francis Penfold (applicant)

(Action No. 9810-0117C50101-3)

Indexed As: R. v. Penfold (E.F.)

Alberta Court of Queen's Bench

Judicial District of Red Deer

Bielby, J.

April 12, 1999.

Summary:

The accused was charged with producing a controlled substance, possessing a controlled substance for the purpose of trafficking and theft of electricity. The accused sought an order to exclude evidence obtained through the execution of a general warrant and a warrant issued pursuant to the Controlled Drugs and Substances Act. The accused argued that his s. 8 Charter right to be secure from unreasonable search and seizure was violated.

The Alberta Court of Queen's Bench held that the manner in which the search was conducted breached the accused's s. 8 Char­ter rights and that the evidence obtained should be excluded.

Civil Rights - Topic 1601

Property - Search warrants - General - [See Criminal Law - Topic 3053 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreason­able search and seizure defined - The accused was charged with offences arising from the production of marijuana - The Alberta Court of Queen's Bench held that a search under a general warrant and a warrant issued under the Controlled Drugs and Substances Act was conducted in breach of s. 8 of the Charter where a police officer instructed a police dog to bite the accused without first allowing the accused sufficient time to comply with verbal instructions and where the police officer was in no realistic danger - The court excluded the evidence obtained in the search, holding that its admission would bring the administration of justice into disrepute notwithstanding the absence of a causal connection between the breach and the evidence produced by the search - The dog bite was an integral part of the search that led to the discovery of the evidence - See paragraphs 73 to 101.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Criminal Law - Topic 3053

Special powers - Search warrants - Persons authorized to search - An accused argued that a search warrant issued under s. 11(1) of the Controlled Drugs and Substances Act (CDSA) was invalid because it was not addressed to a named police officer - The Alberta Court of Queen's Bench held that s. 11(1) of the CDSA did not require the naming of a specific officer or officers to whom a search warrant was directed, that the change in that requirement from the predecessor Narcotic Control Act did not violate s. 8 of the Charter, and that s. 8 did not compel such a requirement to be "read in" to s. 11(1) of the CDSA - The court interpreted s. 11(4) of the CDSA to mean that any member of the group of police officers named in a search warrant could execute the warrant - See paragraphs 42 to 72.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Suffi­ciency of form and content - [See Crimi­nal Law - Topic 3189 ].

Criminal Law - Topic 3189

Special powers - Setting aside search warrants - Grounds - Failure to verify sources of information - The accused was charged with offences arising from the production of marijuana - The accused sought to exclude evidence obtained under a general warrant and a warrant issued under the Controlled Drugs and Substances Act - The accused claimed that his s. 8 Charter rights were violated because the information to obtain the general warrant indicated that the investigation was initi­ated upon information from an unnamed informant of unknown reliability, without disclosing an adequate basis for belief of his reliability - He further claimed that the information to obtain the warrant failed to disclose reasonable and probable grounds -The Alberta Court of Queen's Bench held that corroborating and compelling evidence was acquired in advance of the application for either search warrant so as to adequate­ly compensate for the original inadequacies in the known reliability of the unnamed informant - See paragraphs 37 to 41.

Criminal Law - Topic 3192

Special powers - Setting aside search warrants - Grounds - Search unreasonably conducted - [See Civil Rights - Topic 1646 ].

Narcotic Control - Topic 2024

Search and seizure - Search warrants - Execution - [See Civil Rights - Topic 1646 ].

Narcotic Control - Topic 2029

Search and seizure - Search warrants - Persons authorized to search - [See Crimi­nal Law - Topic 3053 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants, grounds - Information, sufficiency of form and contents - [See Criminal Law - Topic 3189 ].

Police - Topic 3078

Powers - Arrest and detention - Attack dogs - Use of - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Kelly (1994), 24 W.C.B.(2d) 264 (B.C.S.C.), refd to. [para. 40].

R. v. Cann (T.J.) (1997), 204 A.R. 355 (Prov. Ct.), refd to. [para. 40].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 40].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163; 45 C.C.C.(3d) 385; 67 C.R.(3d) 224; 37 C.R.R. 252, refd to. [para. 43].

R. v. Schreiner (I.S.), [1998] B.C.T.C. Uned. J26 (S.C.), refd to. [para. 47].

New Brunswick (Minister of Municipal Affairs) v. Bathurst Paper Ltd. (1971), 4 N.B.R.(2d) 96; 22 D.L.R.(3d) 115 (S.C.C.), refd to. [para. 53].

Ouellette v. Canadian Pacific Railway Co., [1925] A.C. 569, refd to. [para. 53].

Montreal Light, Heat and Power v. Montreal (City), [1924] 2 D.L.R. 605, refd to. [para. 54].

Medicine Hat (City) v. Howson, [1920] 2 W.W.R. 810, refd to. [para. 54].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 55].

Edmonton Journal v. Alberta (Attorney General) and Canada (Attorney General), [1983] 3 W.W.R. 141; 42 A.R. 383 (Q.B.), refd to. [para. 64].

R. v. Huttman (O.) (1996), 191 A.R. 184; 32 W.C.B.(2d) 483 (Prov. Ct.), refd to. [para. 64].

R. v. Benoit, [1995] O.J. No. 4297, refd to. [para. 75].

R. v. Gimson, [1990] O.J. No. 354, refd to. [apra. 77].

R. v. Alamos (B.E.) (1995), 182 A.R. 155 (Prov. Ct.), refd to. [para. 78].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699, refd to. [para. 89].

R. v. Goldhard (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161; 107 C.C.C.(3d) 481, refd to. [para. 98].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11(1), sect. 11(4) [para. 45].

Authors and Works Noticed:

Driedger, E.A., Construction of Statutes (2nd Ed.), pp. 91, 92 [para. 54]; 127 [para. 53]; 156 [para. 55].

Counsel:

Robert W. Short, for the respondent;

Kevin M. Sproule, for the applicant.

This application was heard before Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Red Deer, who delivered the following judgment on April 12, 1999.