R. v. Savoy (A.) et al., (2012) 386 N.B.R.(2d) 330 (CA)

• Judge: Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 14, 2012
• Jurisdiction: New Brunswick
• Citations: (2012), 386 N.B.R.(2d) 330 (CA);2012 NBCA 36

R. v. Savoy (A.) (2012), 386 N.B.R.(2d) 330 (CA);

    386 R.N.-B.(2e) 330; 999 A.P.R. 330

MLB headnote and full text

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: [2012] N.B.R.(2d) TBEd. AP.025

Renvoi temp.: [2012] N.B.R.(2d) TBEd. AP.025

Her Majesty the Queen (appellant) v. Albert Savoy and Cheryl Diane Savoy (respondents)

(133-11-CA; 2012 NBCA 36)

Indexed As: R. v. Savoy (A.) et al.

Répertorié: R. v. Savoy (A.) et al.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.

April 19, 2012.

Summary:

Résumé:

The accused were acquitted on charges of cultivating marijuana and possession of marijuana for the purpose of trafficking. The Crown appealed, asserting that the trial judge erred in finding that a search and seizure of the accused's residence under the authority of a warrant breached the accused's s. 8 Charter rights and in excluding the resulting evidence.

The New Brunswick Court of Appeal allowed the appeal and ordered a new trial.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused were acquitted on charges of cultivating marijuana and possession of marijuana for the purpose of trafficking - The Crown appealed, asserting that the trial judge erred in finding that a search and seizure of the accused's residence under the authority of a warrant breached the accused's s. 8 Charter rights - The New Brunswick Court of Appeal allowed the appeal - The trial judge erred by applying the wrong standard in determining the sufficiency of the redacted Information to Obtain (ITO) - Instead of asking himself whether he would have issued the warrant on the basis of the diminished informational package under consideration, he should have asked if a judge, acting judicially, could have issued the warrant on the basis of the information provided expressly or by reasonable implication in the redacted ITO - The redacted ITO established that the confidential source's information was based on firsthand knowledge - It confirmed a track record of reliability and of confirmation by other sources of the confidential source's intelligence in other cases - The excessive heat emanating from the residence was consistent with a marijuana grow operation in the basement - Also, the judge found reliable the confidential source's information pertaining to the illicit activities at a second residence (the Exmoor residence) - The reliability of that information buttressed the reliability of the confidential source's assertion that a marijuana grow operation was also in progress at the accused's residence - Those circumstances, viewed cumulatively, lead inexorably to the conclusion that the redacted ITO gave rise to the requisite reasonable grounds for the issuance of the warrant to search the accused's residence - It appeared that the judge fell into the trap of assessing the reliability of the information provided respecting the accused's residence in isolation from the information provided respecting the Exmoor residence - The correct approach required a consideration of the "totality of the circumstances" - Had the judge taken that approach, he would have concluded the confidential source's information respecting the accused's residence was sufficiently reliable and the redacted ITO provided ample grounds to uphold the warrant - Whether one applied the "would have issued" test or the formulaically correct "could have issued" test, the result was the same: a valid search warrant and no violation of s. 8 - See paragraphs 21 to 28.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - The accused were acquitted on charges of cultivating marijuana and possession of marijuana for the purpose of trafficking - The Crown appealed, asserting that the trial judge erred in finding that a search and seizure of the accused's residence under the authority of a warrant breached the accused's s. 8 Charter rights and in excluding the resulting evidence - The New Brunswick Court of Appeal stated that "A warrant may issue pursuant to s. 11(1) of the [Controlled Drugs and Substances Act] only where a judge is satisfied by sworn information that there are reasonable grounds to believe that an offence has been committed or is about to be committed, and that evidence of that offence will be found at the specified time and place. It is trite law that the case for issuance need not be made beyond a reasonable doubt. It is sufficient if it is established to the warrant judge's satisfaction that the things to be searched for are probably in the place to be searched. ... At trial, the burden is on the accused to establish the warrant's subfacial invalidity. In the case at hand, the trial judge imposed on the Crown the burden of proving subfacial validity. In doing so, he committed an error of law, but the point has not been pursued by the Attorney General. ..." - See paragraphs 16 and 17.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - The New Brunswick Court of Appeal stated that "In sum, evidence of what would otherwise be a probative tip from an informer, by itself, is insufficient to establish reasonable grounds for the issuance of a warrant under s. 11(1) of the [Controlled Drugs and Substances Act]. However, a reviewing court must accept the sufficiency of such a tip where, on the totality of the circumstances, the issuing judge, acting judicially, could conclude it was reliable. Importantly for our present purposes, a warrant judge is entitled to come to that conclusion where the [Information to Obtain] features confirmation of the informer's reliability in other instances." - See paragraph 27.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The New Brunswick Court of Appeal stated that "the standard of review for the substantive sufficiency of an [Information to Obtain (ITO)] is the same, whether it has been edited or not. The law on point was recently considered in Pitre v. R. [N.B.C.A.] ... It may be summarized as follows: (1) the process for the determination of a claim of subfacial invalidity begins with a presumption that the warrant was validly issued and the correlative attribution to the defence of the burden of establishing the ITO, whether redacted or not, fails to pass muster; (2) in assessing informational sufficiency, the reviewing court must take into account the totality of the data collected in the ITO, as well as any inference the issuing judge was at liberty to draw; (3) moreover, the reviewing court must take a holistic approach to the ITO's assessment, interpreting its constituent parts in the light provided by the context; (4) that said, while an overly strict interpretation of the words used in the ITO is not appropriate, the reviewing court must guard against allowing tolerance for drafting errors or deficiencies to extend to material omissions with respect to substantive requirements; and (5) ultimately, where the ITO does not expressly or by implication disclose grounds upon which a judge, acting judicially, could have issued the warrant, the latter cannot validate the search or seizure in issue." - See paragraph 18.

Criminal Law - Topic 3117

Special powers - Setting aside search warrants - General - Cross-examination of affiant - The accused were acquitted on charges of cultivating marijuana and possession of marijuana for the purpose of trafficking - The Crown appealed, asserting that the trial judge erred in finding that a search and seizure of the accused's residence under the authority of a warrant breached the accused's s. 8 Charter rights and in excluding the resulting evidence - The Crown asserted that, inter alia, the trial judge erred in granting the accused leave to cross-examine the Information to Obtain affiant - The New Brunswick Court of Appeal noted that the Crown had not pressed the assertion and that it could be addressed summarily - First, it was not readily apparent how the assertion, as framed, raised a question of law alone - Further, the decision was made in the exercise of a discretionary power - Where appealable, decisions of that nature could only be reversed if the discretion was not exercised judicially - In applying the deferential standard, courts had looked for clear errors in the judge's decisions - That approach accorded with the general accepted view that a trial judge's discretion would be found to have been judicially exercised unless it yielded an unreasonable decision or one that was tainted by an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence - The case for intervention here had not been made - See paragraphs 10 to 12.

Criminal Law - Topic 3118

Special powers - Setting aside search warrants - General - Evidence and proof - [See Civil Rights - Topic 1604 and first Criminal Law - Topic 3093 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See Civil Rights - Topic 1604 , second Criminal Law - Topic 3093 and Criminal Law - Topic 3113 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - The accused were acquitted on charges of cultivating marijuana and possession of marijuana for the purpose of trafficking - The Crown appealed, asserting that the trial judge erred in finding that a search and seizure of the accused's residence under the authority of a warrant breached the accused's s. 8 Charter rights and in excluding the resulting evidence - The Crown asserted that, inter alia, the trial judge erred in finding that there was a "material difference" between the redacted Information to Obtain that was in evidence at trial and the one that was submitted to the issuing judge - The New Brunswick Court of Appeal noted that the Crown had not pressed the argument and that it could be dismissed summarily - First, it was not readily apparent how the assertion, as framed, raised a question of law alone - Further, it was open to the trial judge to find that there was a material difference - Assuming for the sake of argument that the finding was appealable, the court failed to see how it was the product of any palpable and overriding error in the assessment of the evidential record - If the Court was called upon to deal with the issue, it would draw the same inference - The inference of a material difference was inescapable having regard to the number of deletions, the evident significance of some deletions (e.g., a whole paragraph was blackened) and the context in which they were made - See paragraphs 10, 11 and 13.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - [See Criminal Law - Topic 3117 and second Criminal Law - Topic 3183 ].

Criminal Law - Topic 4944

Appeals - Indictable offences - New trials - When available - General - The accused were acquitted on charges of cultivating marijuana (Controlled Drugs and Substances Act, s. 7(1)) and possession of marijuana for the purpose of trafficking (s. 5(2)) - The Crown, without calling evidence, appealed the acquittals, asserting that the trial judge erred in finding that a search and seizure of the accused's residence under the authority of a warrant breached their s. 8 Charter rights - The accused asserted that the appeal had to fail despite the trial judge's several errors of law, because nothing in the record identified what things were seized at the residence, making it impossible to determine whether the excluded evidence was crucial to the Crown's case - The New Brunswick Court of Appeal allowed the Crown's appeal and rejected the accused's assertion - The redacted Information to Obtain, which was received in evidence at trial, established on a balance of probabilities that, at the time specified in the warrant for its execution, evidence of a violation of ss. 5(2) and 7(1) would be found at the residence - Evidence was seized at that residence on the date of the warrant's issuance and, as a result, charges were laid against the accused for violations of ss. 5(2) and 7(1) - The accused successfully applied for exclusion of that evidence - The case was litigated on the basis that the admission of the evidence was, as the trial judge put it, "absolutely crucial" to the prosecution - Following the decision to exclude the evidence, the Crown's case crumbled - There was no suggestion or evidence pointing to an abuse of process in the decision to charge and prosecute the accused on the basis of the seized evidence or in the Crown's election to close its case once the evidence was excluded - Viewed cumulatively, those circumstances compelled the conclusion that the case for a new trial had been made - See paragraphs 29 to 31.

Criminal Law - Topic 4956

Appeals - Indictable offences - New trials - Grounds - Admission of evidence - [See Criminal Law - Topic 4944 ].

Criminal Law- Topic 4975

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from an acquittal - [See Criminal Law - Topic 3117 and second Criminal Law - Topic 3183 ].

Narcotic Control - Topic 2028

Search and seizure - Search warrants - Issuance of - [See both Criminal Law - Topic 3093 ].

Narcotic Control - Topic 2030

Search and seizure - Search warrants - Judicial review - [See Criminal Law - Topic 3113 ].

Narcotic Control - Topic 2048

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Civil Rights - Topic 1604 , second Criminal Law - Topic 3093 and Criminal Law - Topic 3113 ].

Droits et libertés - Cote 1604

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

Droit criminel - Cote 3093

Pouvoirs spéciaux - Délivrance de mandats de perquisition - Motifs raisonnables - Éléments constitutifs - [Voir Criminal Law - Topic 3093 ].

Droit criminel - Cote 3113

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

Droit criminel - Cote 3117

Pouvoirs spéciaux - Annulation de mandats de perquisition - Généralités - Contre- interrogatoire du déposant - [Voir Criminal Law - Topic 3117 ].

Droit criminel - Cote 3118

Pouvoir spéciaux - Annulation de mandats de perquisition - Preuve (y compris preuve additionnelle) - [Voir Criminal Law - Topic 3118 ].

Droit criminel - Cote 3183

Pouvoirs spéciaux - Annulation des mandats de perquisition - Motifs - Dénonciation - Caractère suffisant de la forme et du contenu - [Voir Criminal Law - Topic 3183 ].

Droit criminel - Cote 4860

Appels - Actes criminels - Moyens d'appel - Question de droit ou erreur de droit seulement - [Voir Criminal Law - Topic 4860 ].

Droit criminel - Cote 4944

Appels - Actes criminels - Nouveaux procès - Conditions d'ouverture - Généralités - [Voir Criminal Law - Topic 4944 ].

Droit criminel - Cote 4956

Appels - Actes criminels - Nouveaux procès - Motifs - Admission de la preuve - [Voir Criminal Law - Topic 4956 ].

Droit criminel - Cote 4975

Appels - Actes criminels - Pouvoirs de la Cour d'appel - Appel d'un acquittement - [Voir Criminal Law - Topic 4975 ].

Stupéfiants - Cote 2028

Fouille, perquisition et saisie - Mandats de perquisition - Délivrance - [Voir Narcotic Control - Topic 2028 ].

Stupéfiants - Cote 2030

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

Stupéfiants - Cote 2048

Fouilles, perquisitions et saisies - Annulation de mandats de perquisition - Motifs - Dénonciation non assermentée - [Voir Narcotic Control - Topic 2048 ].

Cases Noticed:

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. 8].

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. 12].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

R. v. Oliynyk (D.J.) et al. (2008), 253 B.C.A.C. 253; 425 W.A.C. 253; 2008 BCCA 132, refd to. [para. 12].

R. v. Chow (S.K.C.), [2009] B.C.A.C. Uned. 54; 2009 BCCA 328, refd to. [para. 12].

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. 14].

R. v. Pitre (M.S.) (2011), 381 N.B.R.(2d) 203; 984 A.P.R. 203; 2011 NBCA 106, refd to. [para. 18].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [para. 25].

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. 26].

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. 26].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 28].

R. v. Black (D.M.) (2010), 360 N.B.R.(2d) 132; 930 A.P.R. 132; 2010 NBCA 36, refd to. [para. 28].

R. v. Sutton (K.M.), [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205; 2000 SCC 50, refd to. [para. 32].

R. v. Pavlovsky (G.) (2005), 281 N.B.R.(2d) 42; 736 A.P.R. 42; 2005 NBCA 9, refd to. [para. 32].

R. v. Noel (P.J.) (2010), 358 N.B.R.(2d) 108; 924 A.P.R. 108; 2010 NBCA 28, refd to. [para. 32].

R. v. Barros (R.), [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 32].

Authors and Works Noticed:

Ewaschuk, E.G., Criminal Pleadings & Practice in Canada (2nd Ed. 2009) (Looseleaf), paras. 23:1040 [para. 29]; 23:1060(2), 23:2060(3), 23:2060(9), 23:2060(11) [para. 11].

Counsel:

Avocats:

Mélanie Ferron, for the appellant;

James E. Fowler, for the respondents.

This appeal was heard on February 14, 2012, by Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A., of the New Brunswick Court of Appeal. Drapeau, C.J.N.B., delivered the following judgment for the court in both official languages on April 19, 2012.