R. v. Sparks (J.J.), 2015 NSSC 233

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 04, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 233;(2015), 365 N.S.R.(2d) 1 (SC)

R. v. Sparks (J.J.) (2015), 365 N.S.R.(2d) 1 (SC);

    1151 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. SE.019

Her Majesty the Queen v. Jacob Jamal Sparks

(CRH 432272; 432274; 2015 NSSC 233)

Indexed As: R. v. Sparks (J.J.)

Nova Scotia Supreme Court

Rosinski, J.

September 2, 2015.

Summary:

The accused was charged with trafficking in cocaine, contrary to s. 5(2) of the Controlled Drugs and Substances Act. He applied for the exclusion of evidence found during a search of his residence on the basis that his s. 8 Charter rights were violated because the Information to Obtain the search warrant was flawed.

The Nova Scotia Supreme Court dismissed the application.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 1604

Property - Search warrants - Validity of - [See both Criminal Law - Topic 3051 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A justice of the peace (JP) issued a warrant to police to search Sparks' residence based on an Information to Obtain (ITO) which included information from, inter alia, four confidential sources - Cocaine and related materials were seized from the residence - Sparks was charged with trafficking - He applied for the exclusion of evidence on the basis that his s. 8 Charter rights were violated because the information in the ITO was not sufficiently recent or precise - The Nova Scotia Supreme Court dismissed the application - There was no violation of s. 8 - There was reliable information on which the JP could have determined that there were reasonable grounds to issue the warrant - Even if the ITO had suffered from deficiencies that rendered the search warrantless, the court would not have excluded the evidence under s. 24(2) of the Charter - The police were very diligent in conducting their investigation and presenting a robust constellation of factors in the ITO for the JP to consider - They acted in good faith - It was difficult to determine the extent of Sparks' reasonable expectation of privacy in the residence where it appeared to belong to his grandmother and was also occupied by other people - The seized items were non-bodily physical evidence that were highly reliable and essential to the Crown's case - See paragraphs 52 to 64.

Criminal Law - Topic 3051

Special powers - Search warrants - Narcotic control - A justice of the peace (JP) issued a warrant to police to search Sparks' residence based on an Information to Obtain (ITO) which included information from, inter alia, four confidential sources - Cocaine and related materials were seized from the residence - Sparks was charged with trafficking - He submitted that the recency of information took on a heightened importance when it came to street-level drug dealers because they tended to have a quick turnaround in terms of purchase and sale of drugs - Given that the police believed he was a street-level dealer, Sparks argued that the sources' information was not sufficiently recent and that the warrant should not have been issued, resulting in a violation of his s. 8 Charter rights - The Nova Scotia Supreme Court rejected this argument - Sparks was asking the court to deconstruct the ITO, but it was inappropriate to analyse the information in an ITO on a piecemeal basis - Moreover, the court had to consider not only the explicit information presented to the JP, but also allow for reasonable inferences that the JP could have appropriately drawn - In this case, the JP could have reasonably concluded that the information in the ITO showed indicia consistent with a street-level dealer of cocaine, and that the ongoing nature of Sparks' dealings could reasonably have been expected to continue up to the day of the search - See paragraphs 16 to 30.

Criminal Law - Topic 3051

Special powers - Search warrants - Narcotic control - A justice of the peace (JP) issued a warrant to police to search Sparks' residence based on an Information to Obtain (ITO) which included information from, inter alia, four confidential sources - Cocaine and related materials were seized from the residence - Sparks was charged with trafficking - He submitted that the court could not presume that the sources' information was obtained through personal observation as opposed to hearsay - He argued that the ITO in this case was not sufficiently precise regarding "how" the sources acquired the relevant information and that the warrant should not have been issued, resulting in a violation of his s. 8 Charter rights - The Nova Scotia Supreme Court rejected this argument - How the sources acquired the relevant information had to be gleaned, if possible, from the wording of the ITO - Confidential sources were frequently the only people who had the necessary access to such information - Of necessity, the information provided to a JP would not be as fulsome as it might be in the case of people whose identity was not protected by privilege - Although the wording in the ITO was ambiguous, the JP could have reasonably concluded that it was intended to convey that the sources had made personal observations or had direct personal conversations in relation to the matters constituting the information provided - See paragraphs 31 to 50.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - [See both Criminal Law - Topic 3051 ].

Criminal Law - Topic 3113

Special powers - Setting aside search warrants or tracking warrants - General - Scope of review - [See first Criminal Law - Topic 3051 ].

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - [See both Criminal Law - Topic 3051 ].

Narcotic Control - Topic 2027

Search and seizure - Search warrants - Form and contents - [See both Criminal Law - Topic 3051 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See both Criminal Law - Topic 3051 ].

Cases Noticed:

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 3].

R. v. Liberatore (M.V.) (2014), 353 N.S.R.(2d) 387; 1115 A.P.R. 387; 2014 NSCA 109, refd to. [para. 6].

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. 8].

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. 8].

R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 337 B.C.A.C. 268; 576 W.A.C. 268; 2013 SCC 60, refd to. [para. 9].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 10].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1 (C.A.), refd to. [para. 12].

R. v. Caissey (L.M.) (2007), 422 A.R. 208; 415 W.A.C. 208; 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. 13].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 14].

R. v. Saunders (G.T.) (2003), 232 Nfld. & P.E.I.R. 22; 690 A.P.R. 22; 2003 NLCA 63, affd. (2004), 328 N.R. 108; 244 Nfld. & P.E.I.R. 180; 726 A.P.R. 180; 2004 SCC 70, refd to. [para. 15].

R. v. Dewolfe (L.A.) (2011), 297 N.S.R.(2d) 364; 943 A.P.R. 364; 2011 NSPC 1, refd to. [para. 17].

R. v. Campbell (T.), [2005] O.T.C. 491 (Sup. Ct.), refd to. [para. 17].

R. v. Chen, 2007 ONCJ 177, refd to. [para. 17].

R. v. Colby (L.R.) (1999), 240 Sask.R. 1 (Q.B.), refd to. [para. 17].

R. v. Jamieson (1989), 90 N.S.R.(2d) 164; 230 A.P.R. 164 (C.A.), refd to. [para. 17].

R. v. Clow (R.S.B.) et al. (2012), 552 A.R. 64; 2012 ABQB 656, refd to. [para. 19].

R. v. Ballendine (K.D.) (2011), 304 B.C.A.C. 20; 513 W.A.C. 20; 2011 BCCA 221, refd to. [para. 20].

R. v. Beauchamp (H.C.) et al. (2015), 333 O.A.C. 87; 2015 ONCA 260, refd to. [para. 25].

R. v. Day (R.), [1998] O.A.C. Uned. 462 (C.A.), leave to appeal refused (1999), 250 N.R. 195; 130 O.A.C. 199 (S.C.C.), refd to. [para. 31].

R. v. Rocha (J.) (2012), 296 O.A.C. 357; 2012 ONCA 707, refd to. [para. 37].

Director of Public Safety (N.S) v. Dixon et al. (2012), 311 N.S.R.(2d) 313; 985 A.P.R. 313; 2012 NSCA 2, refd to. [para. 60].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 62].

Counsel:

Kevin MacDonald, for the Crown;

Ian Hutchinson, for the defence.

This application was heard on August 4, 2015, in Halifax, N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on September 2, 2015.