J. 2004 SKQB 516 Q.B.C.N.J. A.D. 2003 No. 26 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HER MAJESTY THE QUEEN and DAREN WAYNE SMITH APPLICANT A.G. McIntyre for Her Majesty the Queen G. Orris, Q.C. for Daren Wayne Smith JUDGMENT ZARZECZNY J. December 16, 2004 INTRODUCTION [1] At approximately 3:00 p.m. on June 22, 2002, Cst. Brent Olberg of the Saskatchewan Customs and Excise Division of the Royal Canadian Mounted Police, accompanied by six other members of the British Columbia RCMP drug squad and Abbottsford City Police, some of whom were uniformed, attended to search the residence of the accused Daren Wayne Smith located at 36387 SamTree Place, Abbottsford, British Columbia (the “Smith residence”). Cst. Olberg had previously applied for and obtained two Saskatchewan search warrants, one issued pursuant to s. 487 of the Criminal Code, R.S.C. 1985, c. C-46, (the “Code Warrant”) and one pursuant to s. 11 of the Controlled Drugs and Substances Act, S.S. 1996, c.19 (the “CDSA Warrant”). These Saskatchewan warrants were “backed” by the endorsement of British Columbia Justice of the Peace. Cst. Olberg, the search leader and designated exhibit handler, knocked on the door of the Smith residence loudly announcing his presence as police officer. Repetitions of these actions did not result in anyone answering the door. Cst. Olberg heard movement inside and after waiting approximately two minutes he and the accompanying officers forced entry to the Smith residence. The accused Smith was in the entrance hallway. [2] Cst. Olberg took hold of Smith, forcibly put him to the ground, handcuffed him and advised him that he had search warrants authorizing the search of his residence. He arrested him and advised him he was under arrest. He gave him copy of both search warrants. [3] Smith was the only occupant of the premises. During the search suitcase containing $750,000.00 Canadian cash and some American cash was found in the shower of the main floor bathroom. Additional items seized included an automobile and certain recreational vehicles found in the yard area of the premises. [4] The search of Smith’s residence, the seizure of the money (and other items) and Smith’s arrest were the culmination of an investigation that had begun many months earlier. The investigation concerned alleged illegal cross-border drug trafficking between the United States and Canada including evidence allegedly implicating the accused, Smith. These investigations were outlined in and the subject matter of two Informations to Obtain the Code and CDSA Warrants. The investigations and the Informations to Obtain the search warrants were the responsibility of and the latter were sworn by Cst. Olberg. [5] Daren Wayne Smith currently stands charged with offences alleged to have occurred between July 1, 2001, and June 22, 2002, as set out in current Indictment before this Court. The charges are summarized as follows: 1) Conspiracy to possess marihuana for the purpose of exporting it contrary to s. 6(2) of the CDSA and s. 465(1)(c) of the Code; 2) Conspiracy to possess marihuana for the purpose of trafficking contrary to s. 5(2) of the CDSA and s. 465(1)(c) of the Code; 3) Possession of marihuana for the purpose of trafficking contrary to s. 5(2) of the CDSA; 4) Knowingly possessing property or proceeds of property obtained through the commission of an indictable offence contrary to s. 354(1)(a) and s. 355(a) of the Code; 5) Participating in the activities of criminal organization contrary to s. 467.11 of the Code. THE APPLICATION [6] The accused applies by notice of motion to quash the search warrants that were issued authorizing the search of his residence and to exclude any evidence obtained as a result of the search (the “Application”). The Application alleges a violation of the accused’s s. 8 Canadian Charter of Rights and Freedoms Part 1 of the Constitution Act, 1982 being Schedule B to the Canada Act, 1982, (U.K.), 1982, c. 11 (the “Charter”) rights. The exclusion Application relies upon s. 24(2) of the Charter. [7] After the arraignment of the accused and the receipt of his not guilty plea to all outstanding charges counsel agreed that the court hold voir dire to hear and determine the application. At the voir dire evidence was received including the testimony of the only appearing witness, Cst. Olberg. THE POSITION OF THE APPLICANT [8] The applicant accepts that reasonable and probable grounds existed and were advanced by Cst. Olberg in his Informations to Obtain (exhibits P-2 and P-4 respectively) the Code and CDSA Warrants. That point is not in issue in this Application. Rather the applicant challenges the legal validity of each of the two warrants as issued based upon “facial” deficiencies and/or omissions apparent on the face of the warrants including non-compliance with mandatory requirements of the Code and the CDSA. [9] The applicant argues that if the court agrees that the warrants as issued are invalid then the resultant search of Smith’s residence and its surrounding premises was warrantless search. The search therefore was per se unreasonable and in violation of Mr. Smith’s s. Charter rights. The items seized during the search ought to be excluded as evidence at his upcoming trial by virtue of s. 24(2) of the Charter. THE CROWN’S POSITION [10] Counsel for the Crown accepts that for search warrant to be valid it must substantially comply with the requirements of the law, in particular, s. 487 of the Code (authorizing the issuance of warrant) and Form of the Code (the form specified for warrant) (See R. v. Dombrowski (1985), 1985 CanLII 182 (SK CA), 37 Sask. R. 259; 18 C.C.C. (3d) 164 (Sask. C.A.); Alder v. Attorney-General of Alberta, 1977 CanLII 2098 (AB QB), [1977] W.W.R. 132; 37 C.C.C. (2d) 234 (Alta. S.C.) and The Law of Search and Seizure in Canada, 5th ed., Fontana p. 91-93). The Crown accepted, at paragraph 29 of its written submissions and during the oral argument upon the voir dire, that “it is conceded that the s. 487 warrant cannot be sustained”. This was an appropriate stipulation by counsel for the Crown since careful examination of the Code Warrant demonstrates clearly that nowhere in the warrant is an offence stipulated as required. [11] The Crown nevertheless argues that even though the Code Warrant is invalid the CDSA Warrant does meet the minimum lawful requirements and therefore it authorized the search of Smith’s residence. In consequence the seizure of the property from inside the dwelling and the vehicles and equipment seized from the surrounding premises are legal and valid. [12] In the context of s. 24(2) Charter considerations, the Crown argued that if both warrants were found to be invalid nevertheless the resultant warrantless search of Smith’s residence and surrounding premises and the seizures effected ought not, in the circumstances, to be excluded as evidence at the trial. [13] The issues to be decided as result of this voir dire are as follows: 1. Are the Criminal Code and CDSA Warrants Valid? 2. If the Code and CDSA Warrants are invalid with the result that the accused’s s. Charter rights have been violated, should the evidence obtained as result of these seizures be excluded from the evidence at the accused’s trial pursuant to s. 24(2) of the Charter? ANALYSIS Validity of Search Warrants [14] Counsel for the Crown contends that only if both warrants are found to be invalid is s. 24 of the Charter engaged. agree with and accept this submission. Since the Crown has already stipulated that the s. 487 Code Warrant is invalid that leaves only the facial validity of the CDSA Warrant to consider. Background Facts and Circumstances [15] The decision to search the Smith residence came as result of some many months of investigations principally conducted by Cst. Olberg based upon information he had received from Customs and Excise officers and RCMP members of the drug squad. These investigations, as Cst. Olberg testified to at the voir dire, initially related to suspected illegal vehicular border crossings in Southern Saskatchewan. Some of the evidence that was obtained during this investigation implicated the accused. These investigations culminated in an incident which occurred on June 20, 2002, the day before the Warrants were applied for and issued and two days before the Smith residence search. Cst. Olberg testified that information had been received from U.S. border customs agents advising that vehicle had attempted to enter the United States via an illegal point of entry south of Lake Alma, Saskatchewan. Upon detention of this vehicle it was searched and very large quantity of marihuana was discovered having an estimated street value in excess of one million dollars. The single occupant was arrested. After further investigation, the Crown alleges that it has determined that the vehicle was rented vehicle and that it had been rented by the accused, Smith. [16] These culminating circumstances in Cst. Olberg’s long and detailed investigations prompted him to conclude that he had reasonable and probable grounds to obtain the search warrants ultimately applied for authorizing the search of the Smith residence in Abbotsford, British Columbia. [17] It is against this background that the court turns now to consider the validity of the search warrant(s). The Code, CDSA and Search Warrants [18] Section 487(1)and (2) of the Code provide as follows: 487(1) justice who is satisfied by information on oath in Form that there are reasonable grounds to believe that there is in building, receptacle or place (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of person who is believed to have committed an offence, against this Act or any other Act of Parliament, (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which person may be arrested without warrant, or (c.1) any offence-related property, may at any time issue warrant authorizing peace officer or public officer who has been appointed or designated to administer or enforce federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (d) to search the building, receptacle or place for any such thing and to seize it, and (e) subject to any other Act or Parliament, to, as soon as practicable, bring the thing seized before, or make report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1. (2) Where the building, receptacle, or place in which anything mentioned in subsection (1) is believed to be is in any other territorial division, the justice may issue his warrant in like form modified according to the circumstances, and the warrant may be executed in the other territorial division after it has been endorsed, in Form 28, by justice having jurisdiction in that territorial division. [19] Section 11(1), (3) and (4) of the CDSA provides as follows: 11(1) justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (a) controlled substance or precursor in respect of which this Act has been contravened, (b) any thing in which controlled substance or precursor referred to in paragraph (a) is contained or concealed, (c) offence-related property, or (d) any thing that will afford evidence in respect of an offence under this Act is in place may, at any time, issue warrant authorizing peace officer, at any time, to search the place for any such controlled substance, precursor property or thing and to seize it. (3) justice may, where place referred to in subsection (1) is in province other than that in which the justice has jurisdiction, issue the warrant referred to in that subsection and the warrant may be executed in the other province after it has been endorsed by justice having jurisdiction in that other province. (4) An endorsement that is made on warrant as provided for in subsection (3) is sufficient authority to any peace officer to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized in accordance with the law. [20] Additionally, Forms 28 and 28.1 to the Code are of relevance and they provide as follows: FORM 28 (Sections 487 and 528) Endorsement of warrant Canada, Province of (territorial division) Pursuant to application this day made to me, hereby authorize the arrest of the accused (or defendant) (or execution of this warrant, in the case of warrant issued pursuant to section 487), within the said (territorial division). Dated this ........... day of ........... A.D. ....... at ........................ ................................................. Justice of the Peace in and for ............ FORM 28.1 (Subsection 487.03(2)) Endorsement (order or authorization) Province of ............ (territorial division) Pursuant to application this day made to me, hereby authorize the execution of this order, in the case of an order issued under section 487.051 or 487.052 (or execution of this authorization in the case of an authorization issued under section 487.055 or 487.091), within the said (territorial division). Dated this ........ day of ............ A.D. ...., at ............................ .................................................. Justice of the Provincial Court [21] In his evidence, Cst. Olberg admits and takes responsibility for the shortcomings appearing on the face of both the Code and CDSA Warrants. He testified that these were the first Informations to Obtain Search Warrants that he had sworn and for which he was responsible as lead investigator notwithstanding his some eight to nine year career in the RCMP. He testified that although he had the assistance of his senior officer supervisors in preparing both the Informations to Obtain the Warrants and the Warrants themselves no one noticed the shortcomings in the Warrants as he had prepared them. [22] Cst. Olberg testified that he prepared the Informations to Obtain and the Warrants on the word processing facilities of his computer which contained various “template” or “boilerplate” forms including s. 487 Code Warrants, s. 11 CDSA Warrants, as well as various forms for out-of-province Endorsement or “backing”. [23] In the preparation of the Informations to Obtain the Warrants and the Warrants themselves he “cut and pasted” from these various boilerplate forms injecting, where he thought appropriate and necessary, some of the information specific to the accused and the offences under investigation. These he derived either from original material which he had created on his computer or transposed from the Informations to Obtain the Warrants that he had prepared. [24] The relevant documentation included the two Informations to Obtain the s. 487 Code and s. 11 CDSA Warrants and the Code and CDSA Warrants themselves. Each of the warrants included an out-of-province Endorsement Form, the particular form used appearing to be the Code s. 487.03 Form. [25] It is unfortunate from the perspective of the Crown, that none of the reviewing supervisory officers, the issuing Justice in Saskatchewan or the Endorsing Justice in British Columbia read the warrants presented with sufficient care or attention. Clearly, both the Warrants have obvious and noticeable omissions and/or errors. Nor do they read properly from the standpoint of simple English. [26] Nevertheless, and notwithstanding this observation, the evidence satisfies me that there was no bad faith, malice or intentional omission involved in the preparation of the Warrants. Cst. Olberg was negligent in failing to review the applicable sections and forms of the Code and the CDSA. Having prepared the Warrants he neglected to review them with the care and detail necessary and appropriate to such an important exercise. The same must be said of all others involved in the process including the senior reviewing officers and the issuing and endorsing Justices. The absence of any malevolent intention, while it does not in these circumstances bear directly upon the validity of the Warrants, is nevertheless commented upon because of the bearing that it may have upon any s. 24(2) Charter analysis that may need to be undertaken. Objections to the Warrant [27] Moving from the general to the specific the applicant’s objections to the validity of the CDSA Warrant can be summarized as follows: 1) The list of “things” that will afford evidence in respect of the alleged offence under the CDSA as outlined on the first page of the warrant is repetitive and confusing. At the end of the recitation it specifies that the items referred to or “things” are with reference to transactions “during the period commencing one year prior to the earliest commencement date of the offences described below and ending on June 21, 2002". The subsequent recitation of the offences appearing on page do not specify any dates and accordingly this earlier description of the time frame has no commencement reference point. Clearly, as is illustrated by the introductory portions of page 2, dates contemplated were omitted in the phrase introducing the offences reading, as it does: “between and/or on or about, at, did unlawfully;”. Neither the date nor location contemplated for insertion in this portion of the warrant were inserted. 2) The controlled substance contemplated for identification and insertion into the first three offences on page is omitted. In the fourth and fifth subparagraph appearing on page there is reference to subsections 8(1) and 9(1) of the CDSA. These sections were repealed by c. 32, s. 48 of the Statutes of Canada in 2001 and they were not in existence at the time the Warrants were issued (nor are they now in existence). 3) The extra-provincial endorsement form is the wrong form. As it clearly provides on its face it relates, to s. 487.03 of the Code and makes reference to matters clearly not relevant to the CDSA Warrant including “telephone records, production order and assistance order”. The endorsement also has left blank the identification of the province in the second and third line of the endorsement. 4) The Endorsing British Columbia Justice limited the execution of the Warrant by imposing three exclusionary conditions which an Endorsing Justice is not entitled in law to do. Additionally, the endorsing justice violated the sealing order of the Saskatchewan Justice and reviewed the sealed Informations to Obtain. [28] In answer to these deficiencies the Crown argues that there is sufficient information in the CDSA Warrant to meet the requirement that the Warrant contain statement of the offence(s) on the face of it. Counsel for the Crown refers to page of the Warrant identifying cannabis marihuana as the controlled substance in respect of which the Warrant is sought to provide evidence. Counsel accepts, however, that nowhere in the offence listings on page of the Warrant is there any reference to the name of the persons to be charged, the time frame or dates over which offences are alleged to have been committed, statement of the place or location within Canada where the offences are alleged to have been committed nor, in the listing of the offences, is there any reference to the controlled drug or substance alleged to be possessed for the purpose of trafficking, trafficked in, produced or in relation to which property or proceeds of property were derived from the illegal activity referenced. [29] Counsel for the Crown argues that the illegal substance is named as “cannabis marihuana” on page 1. The omitted references to the illegal substance in the charges on page is cured by reference to page 1. The other particulars such as dates over which and the location where offences listed were committed, while desirable, are substantively not necessary to the validity of the warrant. Additionally, the incorrect reference to repealed sections of the CDSA on page in the description of the fourth and fifth of the listed offences are clearly in error and excused by s. 583 of the Code. [30] Section 583 reiterates the requirements of valid counts or charges in an indictment as specified by s. 581. These sections are clearly applicable to the validity of charges in an indictment, however, are instructive in the context of the wording of charges or offences as contained in warrant such as the CDSA Warrant under review. While it may be that offences as described in warrant need not comply fully with the requirements of s. 581 of the Code at the investigation stage and prior to formal charges being laid, nevertheless as previously noted, the various elements of an offence must be sufficient, even in warrant, to identify, to person confronted with warrant to search his dwelling, the offences in respect of which the warrant authorizes the search. [31] While certain of the individual omissions or misstatements might individually be excusable, an overall reading of the warrant and in particular pages and (the latter outlining, as it was intended to do, the proposed offences in respect of which the warrant authorization pertains) is inadequate and unsatisfactory to meet the minimum offence description requirements contemplated by Form of the Code as those requirements have been further interpreted and identified to apply in the Dombrowski and Alder cases, (supra). As the author Fontana observed in his text The Law of Search and Seizure in Canada at p. 36: Those Criminal Code sections that authorize the issue of search warrants are almost unanimous in requiring that the informant disclose the alleged offence in his sworn information, or his written report. There is no similar specific requirement in the authorizing sections, however, saying that the offence must be stated on the face of the search warrant itself. The nearest that the Criminal Code comes to this requirement is the direction within the contents of Form No. which says, in parenthesis, “describe things to be searched for and offence in respect of which search is to be made.” Since s. 487 is the comprehensive search warrant section, applicable to all offences in the Code, and since s. 487 incorporates by reference Form No. 5, it may be taken that statement of the offence is required on the face of the search warrant itself, as well as on the Information [32] These requirements are equally applicable to CDSA s. 11 warrant as they are to s. 487 Code warrant. In the result, find and conclude that the CDSA Warrant, as was the admitted case with the Code Warrant, is invalid in that it does not sufficiently or adequately state the offences in respect of which the Warrant was issued. [33] Having so concluded must conclude that the resulting search was not legally authorized as required and therefore the search and subsequent seizures in this case were unreasonable within the meaning of s. of the Charter. [34] Had it been necessary to consider the point, would have agreed with the submissions of the Crown with respect to the endorsement form attached to the Warrant which was intended to authorize its execution in British Columbia. Although portions of the endorsement form are clearly referable to s. 487.03 Warrant, nevertheless those portions of it including the identification of the endorsement as being made pursuant to s. 487.03 and the reference to telephone records, production order and assistance order are superfluous. There is no form of endorsement specified for s. 11 CDSA Warrant although one might appropriately conclude that Form 28 in its wording is clearly more appropriate than the form used or, for that matter, Form 28.1. The form does specify territorial jurisdiction of British Columbia and that its endorsement “authorizes the execution of this warrant .” to which the endorsement is attached. would have concluded, in the circumstances, that to the extent that the object of the endorsement is to clearly inform recipient that its provisions, being initially authorized in another province, was authorized for execution in British Columbia it sufficies to communicate that. Had that been the only ground of objection the court would have ruled the warrant valid. Charter s. 24(2) [35] Sections and 24 of the Charter provide as follows: Everyone has the right to be secure against unreasonable search or seizure. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceeding would bring the administration of justice into disrepute. [36] An applicant who seeks exclusion under s. 24(2) bears the ultimate burden or persuasion of satisfying the court, on balance of probabilities, that admission of the proposed evidence could bring the administration of justice into disrepute. [37] warrantless search (in this case the result of having concluded that the two search warrants as issued were invalid) is presumed to be unreasonable unless it can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265. Under Collins warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable. The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by reasonable law and carried out in reasonable manner (R. v. Mann, 2004 SCC 52 (CanLII); (2004), 185 C.C.C. (3d) 308, (S.C.C.), R. v. Collins, supra, and R. v. Buhay, 2003 SCC 30 (CanLII); [2003] S.C.R. 631). [38] Where s. 24(2) of the Charter is engaged, as it clearly is in this case, the appropriate analysis requires consideration of three factors, now commonly referred to as the “Collins Test” including trial fairness, the seriousness of the breach and the effect of exclusion/inclusion upon the repute of the administration of justice (See Collins, supra; R. v. LaPlante (1987), 1987 CanLII 209 (SK CA), 59 Sask. R. 251; 40 C.C.C. (3d) 63 (Sask. C.A.) at p. 79-80; R. v. Turcotte, 1987 CanLII 984 (SK CA), [1988] W.W.R. 97; (1987), 39 C.C.C. (3d) 193 (Sask. C.A.) esp. at pp. 208 and 210). [39] Based upon the evidence received it is clear (and indeed stipulated to by counsel for the applicant at paragraphs 69 and 70 – Brief of Law) that the evidence seized in this case was non-conscriptive within the meaning of R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607. Accordingly, its admission would not render the trial unfair. [40] The second and third of the Collins Tests, namely; the seriousness of the Charter breach, and the repute of the administration of justice require that “all the circumstances” referred to in ss. 24(2), that are applicable, be considered and analysed. These factors include, but are not limited to: the kind of evidence that was obtained in the course of the Charter breach the Charter right being infringed whether the Charter violation was serious or merely technical in nature was the Charter breach deliberate, willful or flagrant, was it inadvertent or committed in good faith did it occur in circumstances of urgency or necessity were other investigatory techniques available would the evidence have been obtained in any event is the offence involved serious is the evidence essential to substantiate the charge are there other remedies available (see Collins, supra, per Lamer J. at p. 87). [41] The degree of seriousness of the breach will increase the greater the expectation of privacy (R. v. Belnavis, [1997] W.W.R. 41 per Cory J.). Highly protected spheres of privacy include the body (R. v. Stillman, supra; R. v. Mann, supra) and personal residences (R. v. Silveira, 1995 CanLII 89 (SCC), [1995] S.C.R. 297; and R. v. Feeney, 1997 CanLII 342 (SCC), [1997] S.C.R. 13). Analysis of the Applicable Circumstances [42] The actions of Cst. Olberg and the other members of the RCMP who assisted him to prepare the Informations to Obtain and Search Warrants, although not meeting the standard of due diligence expected of them when preparing serious and important documents such as these, nevertheless were not motivated by bad faith, ill will against the accused or callous or wilful disregard for his privacy rights. There is no evidence that was presented that suggested otherwise. Cst. Olberg and those attending officers assisting in the search were all of the belief that Cst. Olberg possessed two valid search warrants, the Code and CDSA Warrant. Cst. Olberg testified that it was only some weeks if not months after the search took place that upon closer scrutiny he first became aware of certain deficiencies in these Warrants which might place their validity in doubt. He reported the matter to his supervisors and the assigned Crown prosecutor immediately. [43] The search conducted was of the accused’s personal residence. The accused was entitled to have high expectation of privacy. This is recognized and protected by the law and in particular s. of the Charter (See R. v. Silveria, supra at p. 367). Except for the evidence with respect to the protective action taken by Cst. Olberg to ensure that the searching officers were not interfered with or endangered by the accused when he was encountered immediately upon their entry to the premises (namely, the accused forcibly being put to the ground, handcuffed and briefly physically restrained) there was no excessive or unauthorized use of force at any time during the course of the search. The search took place mid-afternoon during daylight hours. [44] Cst. Olberg testified that after this initial restraint the accused was co-operative and no further physical restraining force was required. The accused was the only person found in the premises. The evidence established that the police were reasonably confident of this fact since Cst. Olberg had had the premises under surveillance for some time before the search entry occurred. In summary, the search when it occurred was thought to be authorized by valid warrants. The now determined s. Charter breach was not then deliberate, wilful or flagrant. There was not any bad faith. [45] The evidence leaves little doubt that the offences for which the accused was being investigated and with which he now stands charged are very serious offences. They include conspiracy to commit number of CDSA offences including exportation, trafficking and possession for the purposes of trafficking in marihuana, possessing the proceeds of crime and participating in criminal organization. The evidence of Cst. Olberg satisfies the court that the final incident precipitating the application for and obtaining of the search warrants involved the apprehension and seizure of an individual driving van which appears to have illegally crossed the Canada–U.S. border on June 20, 2002, the day before the issuance of the warrant and two days before the search. The van is alleged to have contained marihuana having an estimated street value exceeding one million dollars. The vehicle was subsequently found to be leased in the name of the accused. This precipitating event along with the months of investigation leading up to it, generating facts implicating the accused in large illegal cross-border drug operation did, as previously noted and as the applicant’s counsel accepts, provide reasonable and probable grounds for the issue of the two impugned warrants. [46] The existence of reasonable and probable grounds to obtain search warrants to search the accused’s residential premises, together with the seizure of some $750,000.00 in cash from the accused’s residence as a result of the search fulfill a number of the “circumstances” requirements listed in reference to s. 24(2) of the Charter. [47] It is now appropriate to consider, more particularly, the third and final consideration in the Collins Test, that is, whether the exclusion of the evidence in all the circumstances would bring the administration of justice into disrepute. Exclusion of the evidence may substantially impact upon the Crown’s case against the applicant, particularly with respect to the proceeds of crime charge but as well the other counts of the indictment. As pointed out at paragraph 57 of the Mann, (supra) decision, “possession of marihuana for the purposes of trafficking remains serious offence despite continuing debate about the extent of the harm associated with marihuana use”. While the expectation of privacy that the accused had with respect to his private residence is high, nevertheless, the nature and circumstances of the Charter s. breach in this case, combined with the “circumstances” the court has reviewed respecting how the Warrants were prepared and executed, are factors which have led this Court to conclude that the violations of the accused’s s. Charter rights in this case were of less serious nature when compared to the circumstances reviewed by other courts leading them to conclude that the evidence obtained must be excluded. [48] As Lamer C.J.C. commented in R. v. Jenereau, 1992 CanLII 117 (SCC), [1992] S.C.R. 259 “For these reasons, in my opinion, the exclusion, rather than the admission of the impugned evidence would have brought the administration of justice to disrepute”. This is the same conclusion have reached with respect to the evidence obtained in all of the circumstances of this case. [49] In the result I have concluded and rule that although the search warrants relied upon in this case are invalid and therefore the resultant search of the accused’s premises was a violation of his s. 8 Charter rights, nevertheless the facts and all the circumstances established by the evidence do not satisfy me that the admission of the evidence in the further trial proceedings against the accused would bring the administration of justice into disrepute. Therefore, the application of the accused to exclude the evidence pursuant to s. 24(2) of the Charter is dismissed.
The accused applies by notice of motion to quash the search warrants that were issued authorizing the search of his residence and to exclude any evidence obtained as a result of the search. The application alleges a violation of the accused's s. 8 Charter rights. HELD: Although the search warrants relied upon in this case are invalid and the resultant search of the accused's premises was a violation of his s.8 Charter rights, nevertheless, the facts and all the circumstances do not satisfy the Court that the admission of the evidence would bring the administration of justice into disrepute. The application to exclude the evidence is dismissed.  1) The Crown stipulated the s. 487 Criminal Code warrant is invalid. That leaves the validity of s. 11 of Controlled Drugs and Substances Act (CDSA). 2) The CDSA warrant is invalid in that it does not sufficiently or adequately state the offences in respect of which the warrant was issued. The search was therefore warrantless. 3) The evidence seized was non-conscriptive and so its admission would not render the trial unfair. 4) There was no bad faith, malice or intentional omission involved in the preparation of the warrants. The officer was negligent in failing to review the applicable sections and forms of the Code and the CDSA. The absence of any malevolent intention, while it does not bear on the validity of the warrants, has some bearing in the s. 24(2) Charter analysis. 5) The existence of reasonable and probable grounds to obtain the search warrants to search the accused's residential premises, together with the seizure of $750,000 in cash from the accused's residence as a result of the search, fulfill a number of the circumstances under s. 24(2) of the Charter.