Section 8 violation where police entered residence to search prior to arrival of search warrant or copy

R. v. Cormier 2013 NBQB 91 – between 10 or 15 minutes before the Search Warrants were brought to the home in question, the police entered the home and searched to make sure no one else was in it. They then brought the accused, who was under arrest, into his home to await the arrival of the Search Warrants.  As a result of searching the accused’s home, police seized a 12 gauge pump action shotgun that was unloaded, a single-shot .410-gauge shotgun loaded with a slug, a bunch of Percocet pills and some crack cocaine (estimated by one of the police officers to have a street value of perhaps $800.00) as well as some $1,800.00 in Canadian currency. The cash was suspected to be proceeds of property obtained by the commission in Canada of an offence punishable by an indictment.

The accused was facing five charges: one with respect to the currency; one with respect to Percocet pills; one with respect to cocaine; one with respect to the .410 shotgun and one with respect to the 12 gauge shotgun. Charges with respect to the weapons were based on him having possession of those weapons and allegedly not being the holder of a license under which he may possess them. The charges with respect to the Percocet and the cocaine were possession for the purpose of trafficking.

The Court ruled that the Charter argument came down to the interpretation of Section 29(1) of the Code, which reads

    • “It is the duty of everyone who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.”

The judge said that this was not like a situation where police officers, for example, might see on the CPIC information service that there is a warrant outstanding for someone. If that person was recognized on the street, it might be appropriate for an officer to arrest him before the officer actually has a warrant. It is not practical nor feasible for every police officer to have a copy of every Warrant of Arrest in his hand at all times. In the judge’s view, it would be understandable for the police to arrest based on notice through CPIC that a warrant was outstanding and then present the warrant or facsimile of it to the person arrested at a practical and convenient time thereafter.  The judge said that it is more important that the police properly respect s. 29(1) of the Criminal Code. The administration of justice could be weakened by any diminution of the importance of police compliance with such a plain, simple, old law.

Thus, the judge was satisfied that under s. 24(2) of the Charter, the evidence was obtained in a manner that infringed or denied rights or freedoms guaranteed by the Charter. The evidence shall be excluded, because it was established that having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute, and trivialize and overlook the plain statutory duty on officers executing a Search Warrant.  The judge excluded the evidence seized from the accused’s residence by the police, as well as any certificates of analysis arising from that.

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Filed under Recent Case Law, Search and Seizure

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