R. v. Pitre (M.S.), (2011) 381 N.B.R.(2d) 203 (CA)

• Judge: Drapeau, C.J.N.B., Deschênes and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 26, 2011
• Jurisdiction: New Brunswick
• Citations: (2011), 381 N.B.R.(2d) 203 (CA);2011 NBCA 106;381 NBR (2d) 203

R. v. Pitre (M.S.) (2011), 381 N.B.R.(2d) 203 (CA);

    381 R.N.-B.(2e) 203; 984 A.P.R. 203

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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: [2011] N.B.R.(2d) TBEd. DE.010

Renvoi temp.: [2011] N.B.R.(2d) TBEd. DE.010

Mark Stephen Pitre (appellant) v. Her Majesty the Queen (respondent)

(51-11-CA; 2011 NBCA 106)

Indexed As: R. v. Pitre (M.S.)

Répertorié: R. v. Pitre (M.S.)

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Deschênes and Quigg, JJ.A.

December 8, 2011.

Summary:

Résumé:

The accused appealed his conviction on each of two counts: one for production of marihuana (Controlled Drugs and Substances Act, ss. 7(1) and 7(2)(b)) and the other for possession of marihuana for the purpose of trafficking (ss. 5(2) and 5(3)(a)).

The New Brunswick Court of Appeal dismissed the appeal.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused appealed his conviction on each of two counts: one for production of marihuana and the other for possession of marihuana for the purpose of trafficking - The evidence upon which both convictions depended was seized during a search of the accused's residence - The accused challenged the facial validity of the warrant, asserting that ss. 11(1) and (4) of the Controlled Drugs and Substances Act contemplated a warrant that identified by name the peace officer or officers authorized to carry out the search - The trial judge rejected the assertion - The New Brunswick Court of Appeal dismissed the appeal - See paragraphs 12 to 14.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused appealed his conviction on each of two counts: one for production of marihuana and the other for possession of marihuana for the purpose of trafficking - The evidence upon which both convictions depended was seized during a search of the accused's residence - The accused challenged the facial validity of the warrant - The New Brunswick Court of Appeal dismissed the appeal, holding that "[s]ection 11 [of the Controlled Drugs and Substances Act (CDSA)] does not prescribe the use of a particular form for a search warrant. In my view, a duly signed search warrant purporting to issue pursuant to s. 11 of the CDSA will generally pass facial muster if it: (1) is directed at named or unnamed peace officers from the issuing judge's jurisdiction; (2) identifies 'an offence with sufficient precision to apprise anyone concerned of the nature of the offence'; (3) describes the things 'to be seized with enough specificity to permit the officers executing the warrant to identify them and link them to the offence'; and (4) pinpoints the place to be searched 'with sufficient accuracy to enable the reader to know [for] what premises it authorizes the search' ... The warrant at issue here satisfies those requirements and is facially unobjectionable." - See paragraph 15.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused appealed his conviction on each of two counts: one for production of marihuana and the other for possession of marihuana for the purpose of trafficking - The evidence upon which both convictions depended was seized during a search of the accused's residence - The accused challenged the sub-facial validity of the warrant, asserting that there was no evidence placed before the issuing judge by which she could have compared the consumption of electricity during suspected grow activity and other periods, or contrasted the consumption of electricity at the accused's with similar premises - Moreover, the accused submitted that the documents evidencing electrical consumption did not identify kilowatt hours, but the cost to the consumer - Finally, the accused said the Information to Obtain (ITO) was deficient in failing to provide any expert evidence to interpret the electrical consumption data at the accused's during the pertinent period - According to the accused, without such evidence, the rate of electrical consumption at that location was entirely meaningless - The New Brunswick Court of Appeal dismissed the appeal - There might be instances where the missing evidence might cast doubt over the existence of the requisite reasonable grounds - This was not the situation here, having regard to the totality of the information provided by the redacted ITO - See paragraphs 17 and 18.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused appealed his conviction on each of two counts: one for production of marihuana and the other for possession of marihuana for the purpose of trafficking - The evidence upon which both convictions depended was seized during a search of the accused's residence - The accused challenged the sub-facial validity of the warrant, asserting that the data in the Information to Obtain (ITO) was not sufficiently current to allow the issuing judge to find that there were reasonable grounds to believe that, during the period specified in the warrant, the "things to be searched for" would be at the accused's residence - The trial judge concluded that "While much of the information in the ITO is dated, it was important that the affiant set out the historical context of the totality of the circumstances for the issuing judge. The ITO contains ample information for the judge to have concluded that the accused's involvement with the drug trade continued up until the date of the issuance of the warrant. ... Examining the totality of the information in the ITO, there are sufficient reasonable grounds upon which the issuing judge could conclude that there was an ongoing involvement by the accused as a producer of marihuana to the date of the warrant." - The New Brunswick Court of Appeal dismissed the appeal - The trial judge did not err in his conclusion - See paragraph 19.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused appealed his conviction on each of two counts: one for production of marihuana and the other for possession of marihuana for the purpose of trafficking - The evidence upon which both convictions depended was seized during a search of the accused's residence - The accused challenged the sub-facial validity of the warrant, asserting that the applicant for the warrant knew the accused's residence was a two-unit residence and he misled the issuing judge by not underscoring that fact - The accused asserted that the warrant was overly broad because it did not target a specific unit in the two-unit building - The trial judge rejected the assertion, stating that "I do not accept that the judge was misled as to the number of residential units in the building. ... During extensive surveillance nobody else was seen as associated with the premises other than the accused, who was seen coming and going repeatedly. The only phone line subscribed to the premises was in the name of the accused as well as the electrical service. And the owner of the premises leased the entire premises to the accused. In my opinion there was ample information from which the issuing judge could reasonably conclude that the accused was the sole occupant of the premises as a single dwelling." - The New Brunswick Court of Appeal dismissed the appeal - The trial judge did not err in his analysis or conclusion - See paragraph 20.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused appealed his conviction on each of two counts: one for production of marihuana and the other for possession of marihuana for the purpose of trafficking - The evidence upon which both convictions depended was seized during a search of the accused's residence - The accused challenged the sub-facial validity of the warrant, asserting that the trial judge failed to appreciate that the Information to Obtain (ITO) provided hearsay information from unidentified sources without accompanying evidence to sufficiently establish their reliability - The New Brunswick Court of Appeal dismissed the appeal - The ITO provided more than sufficient evidence of source reliability and the standards developed in R. v. Garofoli (SCC 1990) and R. v. Debot (SCC 1989) had been met - See paragraph 21.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused appealed his conviction on each of two counts: one for production of marihuana and the other for possession of marihuana for the purpose of trafficking - The evidence upon which both convictions depended was seized during a search of the accused's residence - The accused challenged the sub-facial validity of the warrant, asserting that the April 2009 Forward Looking Infrared (FLIR) examination of his residence was meaningless, having regard to the relatively neutral results obtained from such an examination a mere two months previous (February 2009) - The trial judge rejected the assertion, stating that "I do not accept that its significance was in any way diminished by the earlier inconclusive examination in February. As described by the F.L.I.R. operator, in February, snow conditions were impeding his full access to the profile of the premises such that he could not conclusively state that the exam was consistent with a grow operation. Conversely the April exam had clear access to the property." - The New Brunswick Court of Appeal dismissed the appeal - See paragraphs 22 and 23.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused appealed his conviction on each of two counts: one for production of marihuana and the other for possession of marihuana for the purpose of trafficking - The evidence upon which both convictions depended was seized during a search of the accused's residence - The accused challenged the sub-facial validity of the warrant, asserting that the trial judge applied the wrong standard of review to determine the warrant's sub-facial validity - The accused asserted that the correct standard required the trial judge to determine whether a warrant would have issued, having regard to the diminished evidentiary record that resulted from the Information to Obtain's significant editing - The New Brunswick Court of Appeal dismissed the appeal - In R. v. Araujo (2000), the Supreme Court referred approvingly to the standard of review accepted in R. v. Allain (S.) (NBCA 1998), namely that "the authority of a reviewing judge on the question of the sufficiency of evidence is confined to ascertaining whether there was some evidence upon which the issuing judge, acting judicially, could issue the warrant" - Reviewing courts were required to apply that standard, whether the supporting affidavits had been edited or not - This was the standard applied by the trial judge in the case at bar - Accordingly, there was no merit to the accused's submission to the contrary - That being said, the court added that "[m]y assessment of the difference between the 'would' and 'could' tests has evolved since R. v. Allain (S.) and R. v. Shalala [NBCA 2000). I no longer view the two tests as markedly different, at least for practical purposes" - See paragraphs 24 to 36.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - [See eighth Civil Rights - Topic 1604 ].

Narcotic Control - Topic 2027

Search and seizure - Search warrants - Form and contents - [See first and second Civil Rights - Topic 1604 ].

Narcotic Control - Topic 2030

Search and seizure - Search warrants - Judicial review - [See eighth Civil Rights - Topic 1604 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See third, fourth, fifth and sixth Civil Rights - Topic 1604 ].

Droit criminel - Cote 3113

Pouvoirs spéciaux - Annulation de mandats de perquisition - Généralités - Portée de la révision - [Voir Criminal Law - Topic 3113 ].

Droits et libertés - Cote 1604

Biens - Mandats de perquisition - Validité - [Voir Civil Rights - Topic 1604 ].

Stupéfiants - Cote 2027

Fouilles, perquisitions et saisies - Mandats de perquisition - Forme et contenu - [Voir Narcotic Control - Topic 2027 ].

Stupéfiants - Cote 2030

Perquisition et saisie - Mandats de perquisition - Révision judiciaire - [Voir Narcotic Control - Topic 2030 ].

Stupéfiants - Cote 2043

Fouilles, perquisitions et saisies - Annulation de mandats de perquisition - Motifs - Dénonciation - Caractère suffisant de la forme et du contenu - [Voir Narcotic Control - Topic 2043 ].

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. 11].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 11].

R. v. Penfold (E.F.) (1999), 242 A.R. 298; 1999 ABQB 275, revd. (2000), 250 A.R. 262; 213 W.A.C. 262; 2000 ABCA 19, application for leave to appeal dismissed (2000), 261 N.R. 393; 277 AR 191; 242 WAC 191, folld. [para. 14].

R. v. Allain (S.) (1998), 205 N.B.R.(2d) 201; 523 A.P.R. 201 (C.A.), refd to. [para. 16].

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. 16].

R. v. Blizzard (A.J.) et al. (2002), 247 N.B.R.(2d) 203; 641 A.P.R. 203; 2002 NBCA 13, refd to. [para. 16].

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].

R. v. Campbell (N.M.) (2011), 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 16].

R. v. Baxter (W.J.), [2007] O.T.C. Uned. 055 (Sup. Ct.), refd to. [para. 17].

R. v. Philpott (G.) et al., [2002] O.T.C. 990 (Sup. Ct.), refd to. [para. 18].

R. v. Turcotte (1987), 60 Sask.R. 289 (C.A.), refd to. [para. 19].

R. v. Chen, [2007] O.J. No. 1572; 2007 ONCJ 177, refd to. [para. 19].

R. v. Colby (L.R.) (1999), 240 Sask.R. 1 (Q.B.), refd to. [para. 19].

R. v. Black, 2008 NBQB 17, refd to. [para. 19].

R. v. Charles, [2010] Q.J. No. 1824; 2010 QCCQ 9178, refd to. [para. 20].

R. v. Shalala (R.H.) (2000), 224 N.B.R.(2d) 118; 574 A.P.R. 118 (C.A.), refd to. [para. 26].

R. v. Arsenault (E.J.) (2009), 344 N.B.R.(2d) 113; 884 A.P.R. 113; 2009 NBCA 29, refd to. [para. 27].

R. v. Black (D.M.) (2010), 360 N.B.R.(2d) 132; 930 A.P.R. 132; 2010 NBCA 36, refd to. [para. 27].

R. v. Kelly (F.T.) (2010), 367 N.B.R.(2d) 1; 946 A.P.R. 1; 2010 NBCA 89, refd to. [para. 31].

Quebec (Procureur général) v. Laroche et al., [2002] 3 S.C.R. 708; 295 N.R. 291; 2002 SCC 72, refd to. [para. 34].

R. v. Bisson (J.) et autres, [1994] 3 S.C.R. 1097; 173 N.R. 237; 65 Q.A.C. 241, refd to. [para. 34].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11 [para. 12].

Authors and Works Noticed:

Fontana, James A., and Keeshan, David, The Law of Search and Seizure in Canada (8th Ed. 2010), pp. 173 [para. 35]; 315 [para. 27].

MacFarlane, Bruce A., Frater, Robert J. and Proulx, Chantal, Drug Offences in Canada (3rd Ed. 2006) [para. 14].

Counsel:

Avocats:

Mark Stephen Pitre appeared in person;

Cameron H. Gunn, for the respondent.

This appeal was heard on October 26, 2011, by Drapeau, C.J.N.B., Deschênes and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages, by Drapeau, C.J.N.B., on December 8, 2011.