R v Barbour (ABCA): Defence must show due diligence in communicating disclosure problems

By |2017-09-22T22:56:30-06:0028/07/2017|Charter of Rights, Disclosure|

The appellant had been convicted of fraud, arising from a number of mortgage transactions. Relatives of the appellant had applied and been granted a number of mortgages, based upon false information.The trial judge had concluded that the appellant knowingly provided this false information relating to her relatives' mortgage applications to a mortgage agent who then submitted the mortgages for approval to the lender. On appeal (2017ABCA 231), the main argument of the appellant related to whether the Crown had complied with its disclosure obligations. The appellant pointed to one particular document—a draft Information to Obtain—which contained a slightly different statement about the reason that the employment of the mortgage specialist involved in these transactions had been terminated by CIBC. The sworn ITO said that the specialist had been fired because he had violated policy and not done enough checks. The draft also said that the specialist had altered documents. The appellant argued that this draft ITO opened lines of questioning that had not been explored at trial and that the draft ITO had not been properly disclosed by [...]

R v Paris (ABCA): Lengthy warrant execution window to maximize chance of drug seizure did not make the warrant “anticipatory”

By |2017-09-28T23:52:38-06:0004/02/2015|Charter of Rights, Drugs, Search and Seizure|

A search warrant for a residence was granted under the Controlled Drugs and Substances Act ("CDSA"), section 11. The warrant was to search for cocaine, money, weigh scales and other drug trafficking paraphernalia. The warrant permitted execution over a 48-hour period. In the information to obtain ("ITO") sworn in support of the warrant, the affiant police officer indicated that she believed that the extended period for execution was necessary because drug traffickers' supply of narcotics is variable. The officer stated that she planned to execute the warrant when the information available, including surveillance, suggested the highest probability of a drug seizure (when certain persons and a vehicle were present at the location to be searched). Section 11 of the CDSA requires reasonable grounds to believe that a controlled substance is currently in the place to be searched. Defence counsel argued that the ITO indicated that the officer did not believe that there were controlled substances in the residence when the warrant was authorized and, accordingly, the search warrant ought not to have been issued. Defence counsel characterized the [...]

R v Fedossenko (ABCA): Production orders can be granted on reasonable suspicion of an offence

By |2017-09-28T23:54:57-06:0005/11/2014|Charter of Rights, Procedure and Practice, Search and Seizure|

NOTE (added Feb. 3, 2015): Amendments to the Criminal Code which take effect on March 9, 2015 contain provisions relating to the issuance of production orders which differ from the provisions of the Code discussed in this case: See Bill C-13: Protecting Canadians from Online Crime Act (2013-2014) Passed October 20, 2014, 41st Parliament, 2nd Session, s. 20. The newly-created "general production order" will not be available on a reasonable suspicion standard, but on the basis of reasonable grounds to believe. The decision discussed below will be of limited use in respect of any production order granted after the amendments take effect. ORIGINAL POST (Nov. 5, 2014): The accused was injured in a single-vehicle collision, then taken to the hospital in an ambulance. A police officer was with him in the ambulance. On the way to the hospital, the police officer was told by the accused that he had consumed "a few beers earlier". No signs of impairment had been noted by an emergency medical technician or other civilian witnesses. There was no smell of alcohol in the ambulance, but the police officer said [...]

R v Saeed (ABCA): Seizure of bodily samples post-arrest should be by warrant

By |2017-09-29T00:09:46-06:0026/07/2014|Arrest, Charter of Rights, Search and Seizure|

The complainant, a 15 year old female, attended a party at an apartment. There, she became intoxicated and went to sleep in a bedroom. After waking, she left the apartment to look for a friend. The complainant was then sexually assaulted by a male who had followed her from the apartment. The sexual assault included forced intercourse. The complainant made her way home with the help of friends before police were contacted. The appellant was arrested at the apartment where the party had occurred when police attended later in the day. The appellant was briefly released (apparently due to an investigative mistake), then re-arrested about an hour later. Upon this second arrest, the appellant was lodged in a "dry cell"—a cell without a toilet or water—and handcuffed to a wall of the cell. About two hours later, a police officer demanded that the appellant provide a swab of the surface of his penis. The officer watched the appellant completing this task. The swab was seized and later analysis found DNA of the complainant on the swab. Aside from the DNA evidence, [...]

R v KZ (ABQB): Second “search” of a seized computer requires a search warrant, not a general warrant

By |2017-09-29T00:18:56-06:0028/04/2014|Charter of Rights, Computers, Search and Seizure|

Police had seized a computer pursuant to a search warrant during an investigation of an alleged attempted murder. During a forensic examination of that computer, an officer viewed an image believed to be child pornography. The examination of the computer was suspended and, ultimately, after consultations with other officers, a general warrant under the Criminal Code, s. 487.01 was sought. The information to obtain sought judicial authorization to examine the computer (and other electronic devices) using software permitting the extraction and analysis of data, relating to the offence of possession of child pornography. The reviewing judge, Assistant Chief Judge Anderson, refused to grant a general warrant upon the initial application by police. The rejection notice indicated that the Court was concerned that a pre-requisite for the granting of a general warrant was not met. Specifically, the Court was concerned about Criminal Code s. 487.01(1)(c) which requires for the issuance of a general warrant that "there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the [...]

R v Vandyke (ABPC): Mandatory minimum sentence for firearms possession overturned

By |2014-04-23T15:45:18-06:0012/01/2014|Charter of Rights, Firearms, Section 12|

Mr. Vandyke was licensed to possess restricted firearms and owned a lawfully registered handgun. The Court found (2013 ABPC 347) that on the day he was arrested, he had been cleaning the handgun in his garage. He placed it on the seat of his motor vehicle, where he forgot it. Later that day, he noticed the firearm on the seat. At that point, he was on his way to a bar. As he intended to leave his truck parked at the bar overnight, he decided to bring the firearm with him. He put it into his pants and went into the bar. There, he briefly showed the firearm to a patron (not in a threatening manner). Soon after, the police were called. Mr. Vandyke was arrested without incident. Mr. Vandyke was charged, among other things, with an offence under section 95 of the Criminal Code (possession of a restricted firearm in a place not authorized, while loaded or with readily available ammunition). Why the firearm was loaded, given that it had been set down during [...]

R v Huynh: Decision not to exclude unconstitutionally collected evidence overturned on appeal

By |2016-11-16T20:46:23-06:0017/12/2013|Arrest, Charter of Rights, Remedies, Search and Seizure|

An experienced drug investigator, by chance, observed an afternoon meeting between two men. The meeting occurred in a lightly-travelled parking lot in the afternoon. The accused pulled in driving a truck. A short time later, the second male approached on foot. The pedestrian got into the vehicle into the front passenger seat. There was a conversation that lasted less than a minute. The two faced each other, with arm movements that could have indicated a hand-to-hand transaction, but the investigator's viewpoint didn't allow for confirmation of that. The pedestrian left on foot. A female passenger in the truck moved from the back seat to the front and the vehicle drove off. The drug investigator formed the view there had been a drug transaction. He believed there were reasonable grounds to arrest the accused. After following the vehicle for about 15 minutes, he directed a uniformed officer to stop the vehicle and arrest the two occupants. The uniformed officer did as directed. The drug investigator arrived within a couple of minutes of the stop of the [...]

R v Croft (ABQB): Warrants authorizing dialed number recorders are not authorizations to intercept

By |2014-09-30T16:41:03-06:0020/11/2013|Charter of Rights, Search and Seizure, Wiretap|

Section 492.2 of the Criminal Code of Canada provides for the issuance by a justice of a warrant to install, maintain and monitor a number recorder, being "any device that can be used to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or intended to be received": s. 492.2(4). The standard to be used by a justice in assessing an information to obtain a s. 492.2 number recorder warrant are "reasonable grounds to suspect" that an offence has been committed or will be committed. In R. v. Croft, 2013 ABQB 644, the accused filed a notice of constitutional question, alleging that s. 492.2(1) and 492.2(2) of the Criminal Code were contrary to section 8 of the Canadian Charter of Rights and Freedoms. The accused argued that: (1) the "reasonable suspicion" standard was an insufficient standard and that a constitutionally valid standard for the issuance of a warrant such as this would be the higher "reasonable grounds to believe" standard; and (2) the information gathered by a number recorder is [...]