R. v. Pilkington (No. 1),

• Jurisdiction: Manitoba
• Judge: Mainella, J.
• Neutral Citation: 2013 MBQB 79
• Citation: 2013 MBQB 79,(2013), 290 Man.R.(2d) 109 (QB),[2013] MJ No 120 (QL),290 Man R (2d) 109,290 Man.R.(2d) 109,[2013] M.J. No 120 (QL),(2013), 290 ManR(2d) 109 (QB),290 ManR(2d) 109
• Date: 10 December 2012
• Court: Court of Queen's Bench of Manitoba (Canada)

R. v. Pilkington (C.) (2013), 290 Man.R.(2d) 109 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. AP.032

Her Majesty The Queen (respondent) v. Colleen Pilkington (accused/applicant)

(CR 11-01-31603; 2013 MBQB 79)

Indexed As: R. v. Pilkington (C.) (No. 1)

Manitoba Court of Queen's Bench

Winnipeg Centre

Mainella, J.

April 17, 2013.

Summary:

Police executed a search warrant at the accused's residence. They believed that the accused and another person were trafficking pills containing oxycodone or morphine out of the residence. The accused moved for a finding that issuance of the warrant had been an unreasonable search contrary to s. 8 of the Charter.

The Manitoba Court of Queen's Bench dismissed the motion.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - A confidential informant (X) told a police officer (Murphy) that the accused (Pilkington) and Desjardins were selling oxycodone and morphine from the residence at 696 College Avenue - X had seen large amounts of the drugs inside the residence and had observed numerous people attend at the residence to purchase the drugs - X described the exterior of the residence and gave particulars about Desjardins' vehicle - X was a drug user whose information had previously resulted in arrests and drug seizures - Through computer searches, Murphy confirmed that X's description of the vehicle was accurate, Pilkington's listed address was 696 College Avenue, and Pilkington and Desjardins had been arrested at the residence and charged with drug offences in 2009 - Through physical surveillance, Murphy observed that the residence's exterior was consistent with X's description, and Desjardins' vehicle was parked in front of it - Murphy observed numerous people attending at the residence for a short periods - Murphy was granted and executed a search warrant for the residence - Pilkington moved for a finding that issuance of the warrant had been an unreasonable search contrary to s. 8 of the Charter - She alleged that there had been insufficient information upon which to issue the warrant - The Manitoba Court of Queen's Bench dismissed the motion - X's information was compelling and not conclusory - X's knowledge was firsthand and recent - The degree of detail was probative - X had experience and knowledge in the drug subculture and understood the significance of what X observed - Murphy was not obligated to investigate or disclose irrelevancies such as X's failure to describe the interior of the residence - Given X's proven track record, there was little reason to doubt the reliability of the information due to the failure to set out X's motivation to assist police - A police investigation did not have to confirm every detail of an informant's tip, particularly when the informant had firsthand knowledge and proven reliability - See paragraphs 46 to 80.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - A confidential informant (X) told a police officer (Murphy) that he had observed the accused (Pilkington) and Desjardins selling oxycodone and morphine from Pilkington's residence - Through a computer search, Murphy learned that in 2009, Pilkington and Desjardins had been arrested at the residence for possession for the purpose of trafficking in morphine, oxycodone and methadone - Murphy was granted and executed a search warrant for the residence - Pilkington moved for a finding that issuance of the warrant had been an unreasonable search contrary to s. 8 of the Charter - She argued that Murphy was required to show the issuing justice that she and Desjardins did not have valid prescriptions for the drugs that X had observed - The Manitoba Court of Queen's Bench rejected this argument - In trials, the statutory presumption was that possession of a prohibited drug was criminal (s. 48(2) of the Controlled Drugs and Substances Act) - If an accused had lawful authority to possess a prohibited drug, it fell to her to produce that lawful authority - With rare exceptions, the Crown did not have to disprove a negative - It followed that police did not have a higher burden at the investigation stage - A search warrant required reasonable probability of criminal activity, not a prima facie case or proof beyond a reasonable doubt - In a situation where police had reason to believe that a target had a prescription, that might be a factor impacting on their reasonable grounds to obtain a warrant - There was nothing to suggest that Murphy had any such belief, especially given Pilkington's arrest in 2009 - In any event, having a prescription for a drug did not allow a person to sell the drug - Nothing in Murphy's investigation led him to believe that lawful sales of pharmaceutical drugs were occurring at the residence - See paragraphs 31 to 45.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information of application for issue of - [See both Civil Rights - Topic 1604 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See both Civil Rights - Topic 1604 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See both Civil Rights - Topic 1604 ].

Cases Noticed:

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. 3].

R. v. Collins (1989), 32 O.A.C. 296; 48 C.C.C.(3d) 343 (C.A.), refd to. [para. 22].

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. 23].

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. 24].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 25].

R. v. Hiscock; R. v. Sauvé (1992), 46 Q.A.C. 263; 72 C.C.C.(3d) 303 (C.A.), leave to appeal refused [1993] 1 S.C.R. vi, refd to. [para. 25].

R. v. Campbell (N.M.), [2011] 2 S.C.R. 549; 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 26].

R. v. Mikituk, [2012] B.C.J. No. 2106; 2012 BCPC 344, refd to. [para. 35].

R. v. Perka, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 40].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 41].

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. 41].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 48].

R. v. Deol (R.S.) (2006), 205 Man.R.(2d) 104; 375 W.A.C. 104; 2006 MBCA 39, refd to. [para. 51].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 53].

R. v. Beauregard (1999), 136 C.C.C.(3d) 80 (Que. C.A.), refd to. [para. 53].

Restaurant Le Clémenceau Inc. v. Drouin, J., et al., [1987] 1 S.C.R. 706; 77 N.R. 72, refd to. [para. 54].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), refd to. [para. 54].

R. v. Nguyen (D.V.) (2011), 281 O.A.C. 118; 273 C.C.C.(3d) 37; 2011 ONCA 465, refd to. [para. 55].

R. v. Campbell (D.B.) (2003), 177 Man.R.(2d) 117; 304 W.A.C. 117; 2003 MBCA 76, refd to. [para. 57].

R. v. Hosie (G.) (1996), 91 O.A.C. 281; 107 C.C.C.(3d) 385 (C.A.), refd to. [para. 57].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 60].

R. v. Melenchuk (R.) et al. (1993), 24 B.C.A.C. 97; 40 W.A.C. 97, refd to. [para. 61].

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. 62].

R. v. Caissey (L.M.) (2007), 422 A.R. 208; 415 W.A.C. 208; 227 C.C.C.(3d) 322; 2007 ABCA 380, affd. [2008] 3 S.C.R. 451; 382 N.R. 198; 446 A.R. 397; 442 W.A.C. 397; 2008 SCC 65, refd to. [para. 63].

R. v. Duncan (W.S.) (2004), 187 Man.R.(2d) 212; 330 W.A.C. 212; 2004 MBCA 64, refd to. [para. 71].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 71].

R. v. Zammit (J.) (1993), 62 O.A.C. 272; 81 C.C.C.(3d) 112 (C.A.), refd to. [para. 71].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 71].

R. v. Lamy (R.M.J.) (1992), 85 Man.R.(2d) 179; 41 W.A.C. 179 (C.A.), dist. [para. 72].

R. v. Liu (P.T.) et al., [2011] B.C.T.C. Uned. 1266; 2011 CarswellBC 2595; 2011 BCSC 1266, dist. [para. 74].

Authors and Works Noticed:

Ewaschuk, E.G., Criminal Pleadings & Practice in Canada (2nd Ed.), Looseleaf, vol. 1, para. 9:5030 [para. 37].

Counsel:

Omar A. Siddiqui, for the Crown;

Mark Wasyliw and Sarah Funk, for the accused/applicant.

This motion was heard before Mainella, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who pronounced a decision on December 10, 2012, and delivered the following written reasons on April 17, 2013.