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Provincial Court Judge Criticized

  • September 2, 2014
  • Clayton Rice, Q.C.

For nine months from October 2013 to June 2014 I defended a drug conspiracy case in Edmonton which included a wire tap component.

During the investigation the police obtained a General Warrant granted by Judge Marilena Carminati who is a Provincial Court Judge in Edmonton. The warrant authorized the police to stop a motor vehicle driven by one of the defendants without informing him of the actual reason for the traffic stop. The police were also authorized to search the vehicle and seize anything that would provide information about the offences being investigated.

One of my co-counsel, Simon Renouf, brought a pretrial motion on behalf of his client before Justice Brian R. Burrows to have the evidence excluded from the trial. His client was the driver. The police seized about two-thirds of a kilogram of methamphetamine from the trunk of the car. This is what defence lawyers do when judges are asked to throw out evidence. Such an application is called an exclusion application or an evidence suppression motion.

In a ruling reported as R. v. Croft, 2014 ABQB 207 Justice Burrows held, at paras. 17, 24 and 41, that a judge cannot authorize the violation of a person’s Charter rights in a General Warrant. The warrant was invalid and did not give the police authority to conduct the search of the defendant’s vehicle. His right to be secure against unreasonable search or seizure under Charter s. 8 was therefore breached.

In a subsequent ruling Justice Burrows excluded the methamphetamine as evidence against the driver and emphasized the supremacy of the Constitution of Canada as contained in s. 52(1) of the Constitution Act, 1982, c. 11 (U.K.). In this second ruling reported as R. v. Croft, 2014 ABQB 215 Justice Burrows concluded as follows, at paras. 50 and 60:

In my view the state Charter-infringing conduct here was of a very high level of seriousness. That any officer of the criminal justice system should even innocently or through oversight seek authorization as the RCMP officer did, is, to my mind, extremely serious. It does not mitigate the seriousness of the state action that the RCMP officer was overworked or that the circumstances required him to prepare the application for the General Warrant with haste, or that the judge may have reasonably believed that the RCMP officer could be relied upon, or that the Charter right in question is not one that is routinely the subject of attention in criminal proceedings as others.

In my view the seriousness of the state Charter-infringing conduct strongly points to the exclusion of the evidence…The citizens of Canada are entitled to expect that police officers and judges who have the power to affect their liberty and privacy will do so with careful regard to all constitutionally guaranteed safeguards. They are entitled to expect that police officers and judges know the significance of the fact that the Charter is part of the “supreme law of Canada”. It is very grave when, regardless of the reason or circumstances, police officers and judges fail to serve those expectations.

Well said, I’d say. Well said.

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