R. v. Whalen (D.), 2015 NLCA 7

• Judge: Welsh, Barry and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: January 20, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: 2015 NLCA 7;(2015), 363 Nfld. & P.E.I.R. 289 (NLCA)

R. v. Whalen (D.) (2015), 363 Nfld. & P.E.I.R. 289 (NLCA);

    1129 A.P.R. 289

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.004

Her Majesty the Queen (appellant) v. Denise Whalen and William Whalen (respondents)

(13/66; 2015 NLCA 7)

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

Newfoundland and Labrador Supreme Court

Court of Appeal

Welsh, Barry and Hoegg, JJ.A.

February 24, 2015.

Summary:

Police obtained a warrant to search the accused's home based on information obtained from two confidential informants and from police surveillance of the accused's residence. The accused was charged with drug trafficking. She applied for the exclusion of evidence on the grounds that her s. 8 Charter rights were violated because the search warrant was invalid.

The Newfoundland and Labrador Provincial Court allowed the application, quashed the search warrant and excluded the evidence. The Crown appealed.

The Newfoundland and Labrador Court of Appeal allowed the appeal and ordered a new trial.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - Police obtained a warrant to search Whalen's residence based on an information to obtain (ITO) that included information from two confidential sources and police surveillance - The sources stated that Whalen was selling prescription drugs from the front door of her home - The sources gave the prices Whalen charged for the pills, told how she acquired the drugs, and stated that she kept them in a locked safe in her basement - Over a 92 minute period, police observed short visits by two females and at least four males to Whalen's home - Whalen was charged with drug trafficking - A chambers judge quashed the search warrant, finding that Whalen's s. 8 Charter rights were violated because the ITO was insufficient - The Newfoundland and Labrador Court of Appeal allowed the Crown's appeal - The information from the sources, who were reliable, established in specific and convincing detail that there were reasonable grounds to believe that Whalen was trafficking drugs at a specific address, that illegal drugs were kept at that address, and that illegal drugs would be found by a search of the residence - The police surveillance was both probative and corroborative of the activity described by the sources.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1604 ].

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - [See Civil Rights - Topic 1604 ].

Criminal Law - Topic 3051

Special powers - Search warrants - Narcotic control - [See Civil Rights - Topic 1604 ].

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - [See Civil Rights - Topic 1604 ].

Criminal Law - Topic 3097

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

Narcotic Control - Topic 2027

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

Cases Noticed:

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 15].

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. 17].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 19].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 20].

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. 21].

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. 22].

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. 22].

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. 23].

R. v. Poirier (G.) (2009), 285 Nfld. & P.E.I.R. 252; 879 A.P.R. 252; 2009 NLTD 35, refd to. [para. 26].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1; 134 C.C.C.(3d) 539 (C.A.), refd to. [para. 26].

R. v. Durling (J.C.) (2006), 249 N.S.R.(2d) 229; 792 A.P.R. 229; 2006 NSCA 124, refd to. [para. 28].

R. v. Saunders (G.T.) (2003), 232 Nfld. & P.E.I.R. 22; 690 A.P.R. 22; 2003 NLCA 63, refd to. [para. 30].

R. v. Day (R.) (2014), 349 Nfld. & P.E.I.R. 1; 1085 A.P.R. 1; 2014 NLCA 14, affd. (2014), 466 N.R. 1; 359 Nfld. & P.E.I.R. 359; 1117 A.P.R.; 2014 SCC 74, refd to. [para. 31].

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. 40].

Counsel:

Trevor N. Bridger, for the appellant;

Averill J. Baker, for the respondents.

This appeal was heard on January 20, 2015, before Welsh, Barry and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. Barry, J.A., delivered the following judgment for the court on February 24, 2015.