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Search Warrants

Edmonton Criminal Lawyer Ziv > Search Warrants
15 April
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NEW MARIJUANA AND DUI LAW

Posted by Rory
in Charter Rights, Defences, dui, lawyer, lawyer edmonton, search or seizure, Search Warrants

NEW MARIJUANA AND DUI LAW Sucking and Blowing

Two new bills were proposed by the government of Canada this week. The new marijuana bill which legalizes possession of 30g or four marijuana plants and new impaired driving legislation.

The link for the new marijuana bill is here:

The link for the new impaired driving link is here:

The Marijuana Bill

I can’t help but to notice that the new marijuana bill is – confusing. Confusing not because its badly worded, structured or illogical but because it sends a conflicting message:

The purpose of the act is set out in section 7 which states:

The Act’s purpose is to “protect public health and public safety” by restricting its access (especially to children), deterring illegal activities associated with cannabis, while at the same time, relieving the burden it places on the criminal justice system and providing access to quality controlled products.

In the same breath, the government is underscoring that marijuana is dangerous “to protect public health and safety” yet advocating for its access.

I’m not advocating a position on marijuana. I’m only highlighting the apparent contrast in the new Act.

The Impaired Driving Bill

I read in a newspaper piece that stated that impaired driving laws have “softened” because of “high priced lawyers” are finding “loopholes”.  Without commenting more on this naïve perspective of the role of criminal defence lawyers, my reading of the new Act (which seems to be cut and paste) of our previous Government’s work (which was not enacted because of the regime change at the last election) the new Act is certainly going to test our relationship as individuals with our government.

One of the glaring new sections 320.27(2) authorizes a peace officer to demand a sample of your breath without any grounds whatsoever to believe you have any alcohol in your body.

This is going to create a significant amount of DUI litigation.   To begin, people don’t like to be told what to do and now we are going to force them to provide a sample of their breath when they have done nothing wrong.

What I find interesting is there has been a push to cease DUI litigation with alternative provincial administrative type enforcement. In British Columbia for example, DUI cases are no longer prosecuted (with some exceptions) because the Provincial government has found other more cost effective ways to deter and punish people for impaired driving. This new legislation coupled with the legalization of marijuana is going to reverse the progressive steps taken in jurisdictions like British Columbia.

Since the legalization of marijuana is coupled with get tough on crime and impaired driving initiatives, I can’t help to feel like the Government is sucking and blowing. We may have taken one step forward by legalizing marijuana but I wonder if we have also taken two steps back?

03 June
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The Relevance of Third Party Charter Violations

Posted by Rory
in Search Warrants

R. v. Guindon (the relevance of 3rd party charter violations)

[2015] O.J. No. 7169

2015 ONSC 4317

In this case the issue to be determined was whether evidence obtained in violation of the Charter rights of a third party should be excised from affidavits and ITOs that were used to obtain orders that do engage the applicants’ privacy interests.

The Crown took the position that “in relation to unconstitutionally obtained evidence, an applicant can only seek excision of it if it involved an infringement of his personal Charter rights”. In support, the Crown cites Chang, [2003] O.J. No. 1076, an ONCA decision. In Chang, the ONCA found that the applicants did not have the standing to challenge certain Quebec authorizations where they were not the named party. The Crown takes this decision to stand for the proposition that an applicant can never “challenge a search warrant or wiretap authorization based on a violation of a third party’s Charter rights.”

L.A. BIRD J rejects this proposition, and notes that in Chang the applicants engaged in a full Garafoli review, unlike this case where the applicants are challenging the validity of the evidence upon which the authorizations are based. In fact the Judge notes that Chang also acknowledged the applicants’ right to question the evidence upon which their authorizations are based, and this is something distinct from a full Garafoli review.

The Judge notes that there are other cases that support the Crown’s view, but these are against the tide of general jurisprudence in Ontario. The judge states as a matter of law that

·         “The law clearly requires the excision of all references to evidence that was obtained in violation of an applicant’s Charter rights: R. v. Grant, [1993] S.C.J. No. 98, R. v. Plant, [1993] S.C.J. No. 97 and R. v. Wiley, [1993] S.C.J. No. 96.”

·         “The law is well established that all erroneous material must be excised from an affidavit on a Garofoli review (R. v. Araujo, [2000] S.C.J. No. 65 at paragraphs 57 and 58).”

In conclusion, the Judge disagrees with the Crown’s position and grants the application. The Judge finds that the Applicants are entitled to challenge any unconstitutionally obtained evidence, and it is irrelevant whether they are the named party or a third party in the authorization in question.

* google

 

 

 

15 April
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Garofoli Procedure

Posted by Rory
in Search Warrants

Garofoli Procedure

R. v. Burgher, [2014] O.J. No. 6449, 2014 ONSC 4527

PRE-TRIAL RULING
THE PROCEDURE PURSUANT TO R. V. GAROFOLI

Background: This is a pre-trial application on the nature of the steps articulated by Sopinka J. in Garofoli in challenging a wiretap or a search warrant. It is useful to reproduce the six steps here.

1.      1-Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.

2.      The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.

3.      After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.

4.      After the determination has been made in (3), the packet material should be provided to the accused.

5.      If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6.      If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

The accused contends the nature of the judicial summary in Step 2 and Step 6 is fundamentally different. Whereas, the judicial summary requirement in step 2 can be fulfilled by a generic description of the kinds of excised information, the accused maintains that the judicial summary in step, while like the judicial summary in step 2 is of no evidentiary significance in determining the validity of the warrant, must “be detailed enough to make the accused sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”

The Crown maintains that the nature of the judicial summaries in both steps is essentially the same, and further contends that the judicial summary in step 2 can form part of the evidentiary record in the Crown’s application under step 5.

The accused also submits that the Crown must choose between step 5 and step 6.

Analysis: The Court agrees with the accused’s contention that the judicial summaries in steps 2 and 6 are fundamentally different. While the summary in step 2 is of generic nature, the summary in step 6 will be more detailed. In rare cases, however, the summaries may be the same.

The Court also notes that “judicial summaries created at step two and step six of the Garofoli procedure are designed to serve as a substitute for full disclosure to fairly help the accused participate meaningfully in the process. They were not intended to serve as a more expansive evidentiary record to determine the legal sufficiency of the search warrant.”

The Court goes on to note that the Crown does not have to choose between step 5 and step 6, but may proceed with both simultaneously. The Court is concerned that making the Crown choose would simply result in the Crown proceeding with step 6, which would be more time-consuming. While the Court recognizes that simultaneous Step 5 and Step 6 applications are also time-consuming, it holds that that is the law as per Garofoli.

08 February
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Unreasonable Search and Seizure — ACM –Airbag Control Modules

Posted by Rory
in Charter Rights, Search Warrants

Airbag Control Modules

In R v Hamilton 2014 ONSC 447, the Court conducts an exhaustive analysis of what constitutes unreasonable search and seizure as per section 8 of the charter. The issue in this case is whether accessing the data stored on the Airbag Control Module (“ACM”) without prior judicial authorization violates s8.
The court establishes that s8 analysis consists of asking if a) there is a reasonable expectation of privacy b) the search was reasonable.
A-Reviewing the case law, the court points out that whether an expectation exists, it is necessary to look at a)The Applicant’s Subjective of Privacy and b) Is the Expectation of Privacy Objectively Reasonable in the Totality of the Circumstances?
The subjective component is not a high threshold, and it depends upon the subject matter of the search and whether the applicant had a direct interest in it. The court notes that the subject matter of the search was not the ACM as a physical object, but the date stored within in, and that the applicant had a direct interest in the data.
Whether the expectation is objectively reasonable depends on a number of questions, suggested in Edwards. The court examines these questions and finds that the expectation was objectively reasonable.
Finding that a reasonable expectation of privacy exists, the court evaluates whether the search was reasonable. The court finds that -1-The search was not authorized by law and that 3-the search itself was not reasonable. 2-The court does not address whether the law in question was itself unreasonable.
It is important to note that the court’s analysis in both establishing that there is a reasonable expectation and that the search was unreasonable acknowledges the problematic nature of the officer’s conduct. There is not a single factor that the court finds in favour of the crown in this part of the analysis. And this forms the bulk of the decision. The court spends an awful lot of time in establishing that the conduct was a breach of s8.
However, when it comes to the remedy under s24, the analysis is brief and the court is quick to establish that the administration of justice will not be brought into disrepute by including this evidence. The court says that the 1- the charter breach is not particularly serious, and that the court must take into account the conduct of the applicant that led to the charter breach. 2-The court also says that the impact on the charter protected interests of the applicant is moderate and that 3- the reliability of the evidence weights in favour of inclusion (Society’s interest in an adjudication on the merits)
Balancing the factors, the court finds in favour of including the evidence.
My thoughts: This case was enlightening purely for the huge gulf between the s8 and s24 analysis. In the s8 analysis the court seems far more cognizant of the accused’s rights, whereas s24 seems to exist solely to provide legal sanction to include evidence that infringes charter rights.

R v Shaw 2016 ONSC 658
The Appellant was convicted of failing to provide a breath sample, but appealed because the testimony consisted of evidence by adult witnesses that was not sworn or affirmed.
The judge reviews the law and finds that for adult witnesses the proper way to receive evidence is by testifying under oath or by solemn affirmation. The cases provided by the crown deal with witnesses with specific considerations for testifying. No such considerations are in operation in the facts here.
The judge notes with approval the cases cited by the Appellant. In Matheson, failure to follow strict compliance with having evidence taken under oath, the process was rejected. Similarly, in Kalkhorany, the court found that a trial procedure could not be remedied when the trial began as a summary conviction, and when the six month time period for commencing expired, the process was converted into a trial by indictment. The court found that the formality of reconstituting the court and taking a proper plea on the process had to be followed or specifically waived.
Rejecting, the crown’s assertion that this was a procedural issue, the judge quashes the conviction.

28 September
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Search Warrants

Posted by Savvas
in Search Warrants

I often have Edmonton clients who advise me that they have their premises searched but are not shown a copy of the search warrant when they request same. Section 29. of the Criminal Code of Canada says that the police must show a copy of the search warrant when it is feasible to do so. In a recent case the failure of the police to do so resulted in the Court finding the accused’s rights were violated.

See R. v. McCarter BCJ No 871