R. v. Titus (D.), (1988) 91 N.B.R.(2d) 291 (PC)

• Judge: Harper, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: August 29, 1988
• Jurisdiction: New Brunswick
• Citations: (1988), 91 N.B.R.(2d) 291 (PC)

R. v. Titus (D.) (1988), 91 N.B.R.(2d) 291 (PC);

    91 R.N.-B.(2e) 291; 232 A.P.R. 291

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Her Majesty the Queen v. Daniel Titus

Indexed As: R. v. Titus (D.)

New Brunswick Provincial Court

Harper, P.C.J.

August 29, 1988.

Summary:

The accused motor vehicle driver was taken to hospital after striking a parked car. The attending police officer telephoned a Provincial Court judge pursuant to s. 240 of the Criminal Code and obtained a search warrant (telewarrant) authorizing the taking of two blood samples from the accused for analysis. The accused was charged with driving a motor vehicle while having an excessive blood-alcohol content contrary to s. 237(b) of the Criminal Code.

The New Brunswick Provincial Court held that the telewarrant was invalid for noncompliance with statutory requirements; that the seizure of the blood samples constituted an unreasonable search and seizure contrary to s. 8 of the Charter of Rights and Freedoms; and that the certificate of analysis of the blood samples (plus three other documents) were to be excluded from evidence under s. 24(2) of the Charter to avoid bringing the administration of justice into disrepute.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure defined - The accused motor vehicle driver was taken to hospital in a semi-conscious state following his collision with a parked car - The attending police officer telephoned a Provincial Court judge pursuant to s. 240 of the Criminal Code to obtain a "telewarrant" to obtain two blood samples from the accused - The telewarrant was ruled to be null and void for noncompliance with statutory requirements - The New Brunswick Provincial Court held that the seizure of blood samples under an invalid warrant violated the accused's right to be secure against unreasonable search and seizure under s. 8 of the Charter of Rights and Freedoms - The court stated that evidence obtained as a result of the seizure was to be excluded under s. 24(2) to avoid bringing the administration of justice into disrepute - See paragraphs 72 to 92.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 above].

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Bring the administration of justice into disrepute - [See Civil Rights - Topic 1217 above].

Criminal Law - Topic 3057

Search warrants - Telewarrants - Validity of - Sections 240 and 443.1 of the Criminal Code provided the procedure for obtaining search warrants by telephone or other means of telecommunication - The New Brunswick Provincial Court set out the conditions precedent to obtaining a valid telewarrant - See paragraphs 93 to 112.

Criminal Law - Topic 3057

Search warrants - Telewarrants - Validity of - Section 443.1(2) of the Criminal Code required that an information in support of an application for a telewarrant must be on oath - An officer applying for a telewarrant did not swear to the truth of the contents of his application - The New Brunswick Provincial Court held that the information was not on "oath", as required by s. 443.1(2) - See paragraphs 43 to 48.

Criminal Law - Topic 3057

Search warrants - Telewarrants - Validity of - Sections 240 and 443.1 of the Criminal Code provided the procedure for obtaining search warrants by telephone or other means of telecommunication - Section 443.1(2) required that the conversation between the applicant and the Provincial Court judge issuing the warrant be "recorded verbatim" - The New Brunswick Provincial Court held that the recording requirement was mandatory, not a mere matter of procedure - See paragraph 52.

Criminal Law - Topic 3057

Search warrants - Telewarrants - Validity of - Section 443.1(6)(a) of the Criminal Code required that the judge issuing a telewarrant under ss. 240 or 443.1 complete the warrant in Form 5.1, as found in Part XXV of the Criminal Code - A telewarrant failed to include the last two paragraphs of Form 5.1 - The New Brunswick Provincial Court held that the omission invalidated the telewarrant, because the missing paragraphs contained vital information important to the accused in the preparation of his defence - See paragraphs 28 to 33.

Cases Noticed:

R. v. Askov (1988), 60 C.R.(3d) 26, refd to. [para. 84].

R. v. Hunter (1987), 19 O.A.C. 131; 57 C.R.(3d) 1 (C.A.), refd to. [para. 91].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 237(b) [para. 1]; sect. 240, sect. 241(h), sect. 443.1 [para. 65].

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 73]; sect. 24(2) [para. 74].

Authors and Works Noticed:

Martin's Annual Criminal Code (1988), pp. 757-758 [para. 28].

Counsel:

Daniel Watters, for the accused;

Glen Abbott, for the Crown.

This case was heard before Harper, P.C.J., of the New Brunswick Provincial Court, who delivered the following judgment on August 29, 1988.