R. v. Penney (G.), (2011) 316 Nfld. & P.E.I.R. 73 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: December 06, 2011
• Jurisdiction: Newfoundland and Labrador
• Citations: (2011), 316 Nfld. & P.E.I.R. 73 (NLPC);2011 NLPC 1310

R. v. Penney (G.) (2011), 316 Nfld. & P.E.I.R. 73 (NLPC);

    982 A.P.R. 73

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. DE.030

Her Majesty the Queen v. George Penney

(2011 NLPC 1310A01059)

Indexed As: R. v. Penney (G.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

December 12, 2011.

Summary:

The accused was charged with possession of a controlled substance for the purposes of trafficking (Controlled Drugs and Substances Act, s. 5(2)) and possession of contraband tobacco (Excise Act, s. 32). He applied to have anything seized as a result of the execution of two search warrants excluded as evidence at trial under s. 24(2) of the Canadian Charter of Rights and Freedoms. He argued that the search and seizure violated s. 8 of the Charter because neither of the informations to obtain provided sufficient evidence for the search warrants to have been issued.

The Newfoundland and Labrador Provincial Court dismissed the application. The court held that the search warrants were validly issued. Alternatively, the court would not have excluded the evidence under s. 24(2) of the Charter.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused was charged with possession of a controlled substance for the purposes of trafficking (Controlled Drugs and Substances Act (CDSA), s. 5(2)) and possession of contraband tobacco (Excise Act (EA), s. 32) - He applied to have anything seized as a result of the execution of two search warrants excluded under s. 24(2) of the Charter - He argued that the search and seizure violated s. 8 of the Charter because neither of the informations to obtain provided sufficient evidence for the warrants to have been issued - The Newfoundland and Labrador Provincial Court held that when police executed a search warrant, they could seize the items listed in the search warrant and anything that they believed on reasonable grounds would afford evidence respecting an offence (CDSA, 11(6)(d); EA, s. 258(5)(b); Criminal Code, ss. 489(1) and (2); and R. v. Jones, 2011 ONCA 632) - As a result, the accused conceded that if one of the search warrants was ruled valid, the items seized by the police were seized lawfully and s. 8 of the Charter was not violated - See paragraph 8.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Narcotic Control - Topic 2043 ].

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - [See Criminal Law - Topic 129 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with possession of a controlled substance for the purposes of trafficking (Controlled Drugs and Substances Act, s. 5(2)) and possession of contraband tobacco (Excise Act, s. 32) - He applied to have anything seized as a result of the execution of two search warrants excluded under s. 24(2) of the Charter - He argued that the search and seizure violated s. 8 of the Charter because neither of the informations to obtain provided sufficient evidence for the warrants to have been issued - The Newfoundland and Labrador Provincial Court held that the search warrants were valid - Alternatively, the court would not have excluded the evidence where its admission would not bring the administration of justice into disrepute - It was reasonable for the police to have concluded, based upon the issuing judge having granted their applications, that their applications had been properly formulated and that they were thus, acting lawfully - This was not a case where the police purposely misled the issuing judge or reasonable grounds were lacking for the search warrants to be issued - What occurred was a failure to articulate the grounds clearly - If the search warrants were invalid, then a serious and intrusive invasion of the accused's right to privacy had occurred - The evidence was highly relevant and reliable - Its exclusion would "gut" the Crown's case - See paragraphs 59 to 72.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - The Newfoundland and Labrador Provincial Court set out the following procedure for a court to follow when reviewing a redacted information to obtain for Charter compliance: "1. it should review the information to obtain with the blacked out portions to determine if it can survive constitutional scrutiny; 2. if it does, then that ends the matter; 3. if it does not, then the Court should review the original information to obtain the search warrant; 4. if it does not survive constitutional scrutiny, then a violation of section 8 of the Charter has been established and the blacked out portions should not be revealed; and 5. if the original information does survive constitutional scrutiny, then the Crown must be given an opportunity to make submissions as to whether or not the blacked out portions should be disclosed to defence counsel." - See paragraph 6.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - [See first Civil Rights - Topic 1646 ].

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - The Newfoundland and Labrador Provincial Court discussed the role of the judge in reviewing a challenged search warrant - The court stated, inter alia, that search warrants were creatures of statute - Thus, when their validity was challenged, their statutory basis had to be reviewed - See paragraphs 20 to 23 - The court noted that both the Controlled Drugs and Substances Act (CDSA) and the Excise Act (EA) had their own search warrant provisions - The court reviewed s. 11(1) of the CDSA and s. 258 of the EA - See paragraphs 24 to 29.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See Criminal Law - Topic 129 ].

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - [See Criminal Law - Topic 129 ].

Customs - Topic 3064

Search and seizure - Search warrants - Issue of - [See Criminal Law - Topic 3046 and Narcotic Control - Topic 2043 ].

Narcotic Control - Topic 2030

Search and seizure - Search warrants - Judicial review - [See Criminal Law - Topic 3046 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - The accused challenged search warrants obtained under the Controlled Drugs and Substances Act (CDSA) and Excise Act (EA) - The Newfoundland and Labrador Provincial Court held that a sufficient evidentiary basis had been presented, though barely, for the judge to have issued the CDSA search warrant - Thus, its issuance did not violate s. 8 of the Charter - Source "A" had provided information on previous occasions which had led to two CDSA seizures; the evidence Source "A" provided to the police was based upon "personal observations"; and the affiant was able to confirm the accuracy of the information provided by Source "A" respecting the accused's age and residence - The biggest problem was the timeliness of the information provided by Source "A" - However, it was open to the issuing judge to draw the inference that Source "A" had made his observations on the same date that the information was sworn, December 20, 2010, and thus conclude that there were reasonable grounds to believe that marihuana would be found inside the accused's residence on December 21, 2010 - The information to obtain under the EA contained the same information as the CDSA information and, in addition, made it clear that the evidence provided by Source "A" was provided on December 20, 2010 - Thus, its issuance did not violate s. 8 - See paragraphs 39 to 48.

Cases Noticed:

R. v. Adams, [2004] N.J. No. 105 (Prov. Ct.), folld. [para. 6].

R. v. Liu (P.T.) et al., [2011] B.C.T.C. Uned. 1266 (Sup. Ct.), refd to. [para. 7].

R. v. Pitre (M.S.) (2011), 381 N.B.R.(2d) 203; 984 A.P.R.. 203; 2011 NBCA 106, refd to. [para. 7].

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

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 15].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 15].

R. v. Newell (R.) (2009), 284 Nfld. & P.E.I.R. 68; 875 A.P.R. 68; 243 C.C.C.(3d) 33; 2009 NLCA 18, refd to. [para. 15].

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. 16].

Hunter v. Southam Inc. - see Southam Inc. v. Hunter.

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 17].

R. v. Lee (B.) (2011), 515 A.R. 65; 532 W.A.C. 65; 2011 ABCA 310, refd to. [para. 17].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 18].

R. v. Gray (L.M.) (1993), 85 Man.R.(2d) 211; 41 W.A.C. 211; 81 C.C.C.(3d) 174 (C.A.), refd to. [para. 18].

R. v. Jordan (A.D.) (2011), 506 A.R. 163; 2011 ABQB 105, refd to. [para. 19].

R. v. McLauchlin (J.) (2011), 313 B.C.A.C. 101; 533 W.A.C. 101; 2011 BCCA 468, refd to. [para. 20].

R. v. Campbell (N.M.) (2011), 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 20].

R. v. Stacey (E.) et al. (2011), 312 Nfld. & P.E.I.R. 206; 971 A.P.R. 206 (N.L. Prov. Ct.), refd to. [para. 20].

R. v. Saunders (G.T.) (2003), 232 Nfld. & P.E.I.R. 22; 690 A.P.R. 22; 181 C.C.C.(3d) 268; 2003 NLCA 63, affd. [2004] 3 S.C.R. 505; 328 N.R. 108; 244 Nfld. & P.E.I.R. 180; 726 A.P.R. 180; 2004 SCC 70, refd to. [para. 22, footnote 3].

R. v. Westrageer (D.K.), [2005] B.C.T.C. 1558 (Sup. Ct.), refd to. [para. 26].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1; 134 C.C.C.(3d) 539 (C.A.), refd to. [para. 29].

Hicks v. Brown (1921), 36 C.C.C. 141 (Ont. C.A.), refd to. [para. 29].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; 75 C.R.(3d) 257, refd to. [para. 40].

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. 40].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 50].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 50].

R. v. Forsythe (J.R.) (2009), 251 Man.R.(2d) 90; 478 W.A.C. 90; 250 C.C.C.(3d) 90 (C.A.), refd to. [para. 50].

R. v. Côté (A.) (2011), 421 N.R. 112; 2011 SCC 46, refd to. [para. 53].

R. v. Cole (R.) (2011), 277 O.A.C. 50 (C.A.), refd to. [para. 54].

R. v. Mahmood (A.) (2011), 284 O.A.C. 94; 2011 ONCA 693, refd to. [para. 56].

R. v. Scoville (J.) (2011), 312 Nfld. & P.E.I.R. 181; 971 A.P.R. 181 (N.L. Prov. Ct.), refd to. [para. 57].

R. v. Blake (O.) (2010), 257 O.A.C. 346 (C.A.), refd to. [para. 57].

R. v. Wong (J.S.) (2010), 285 B.C.A.C. 157; 482 W.A.C. 157; 2010 BCCA 160, refd to. [para. 57].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345, refd to. [para. 57].

R. v. Loewen (D.J.) (2011), 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3 (S.C.C.), refd to. [para. 57].

R. v. Ramage (R.) (2010), 265 O.A.C. 158; 2010 ONCA 488, refd to. [para. 57].

R. v. Kavanagh (M.) (2011), 305 Nfld. & P.E.I.R. 201; 948 A.P.R. 201 (NLTD(G)), refd to. [para. 57].

R. v. Reddy (C.J.) (2010), 282 B.C.A.C. 51; 476 W.A.C. 51; 2010 BCCA 11, refd to. [para. 57].

R. v. Stevens (L.) (2011), 282 O.A.C.16; 2011 ONCA 504, refd to. [para. 57].

R. v. Martin (G.W.) (2010), 361 N.B.R.(2d) 251; 931 A.P.R. 251 (C.A.), refd to. [para. 57].

R. v. Blanchard (P.J.) (2011), 308 Nfld. & P.E.I.R. 91; 958 A.P.R. 91; 2011 NLCA 33, refd to. [para. 61].

R. v. Keating (D.) et al. (2010), 302 Nfld. & P.E.I.R. 215; 938 A.P.R. 215 (N.L. Prov. Ct.), dist. [para. 61].

R. v. B.D. (2011), 273 O.A.C. 241 (C.A.), refd to. [para. 62].

R. v. Smith (A.K.) (2010), 305 Nfld. & P.E.I.R. 285; 948 A.P.R. 285 (N.L. Prov. Ct.), refd to. [para. 62].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112 (C.A.), refd to. [para. 65].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11(1) [para. 25].

Excise Act, S.C. 2002, c. 22, sect. 258 [para. 27].

Counsel:

A. Dwyer, for Her Majesty the Queen;

P. Chaffey, on behalf of Mr. Penney.

This application was heard at Corner Brook, NL, on December 6, 2011, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on December 12, 2011.