Damien R. Frost

This decision addresses multiple pre-trial motions in a large-scale drug trafficking prosecution, focusing on Charter violations related to search and seizure (s.8) and the right to counsel (s.10), as well as the voluntariness of an utterance.

The court found the initial warrantless search for cocaine unconstitutional and excluded the evidence.

The initial search warrant for the Warwick premises was quashed, but other evidence seized under it was admitted.

Covert camera evidence was admitted despite an unlawful installation, but references to it were excised from subsequent Informations to Obtain (ITOs).

Tracking warrants and general warrants for other properties were largely upheld after excising unconstitutionally obtained information.

An accused's utterance was found voluntary and admitted, despite a s.10 Charter violation, as the impact on Charter rights was deemed slight and exclusion would not bring the administration of justice into disrepute.

The defendants were charged with five counts of importing engines without evidence of conformity as required by the Canadian Environmental Protection Act.

The Crown alleged importation of seven small spark-ignition engines and five diesel engines mounted in tractors.

The court found that while the Crown proved the importation of tractors and that the engines were of a prescribed class, it failed to prove beyond a reasonable doubt that all engines had a model year of 2006 or later (for tractors) or 2005 or later (for small engines), which was an essential element of the offence.

The court convicted on one count relating to a tractor engine but acquitted on the remaining counts.

The accused, Gerri Carvalho, faced charges of drug possession and possession for the purpose of trafficking, with the trial blended with a Charter application challenging the legality of the initial police stop (s.9) and subsequent search (s.8).

The court found the initial stop was lawful due to dangerous driving, dismissing the s.9 application.

However, the s.8 application was granted, as inconsistencies in police testimony regarding the presence of a scale and marijuana shake meant that the smell of marijuana alone was insufficient to establish reasonable and probable grounds for the search.

Applying the R. v. Grant factors under s.24(2), the court admitted the seized evidence, citing the good faith of the officer, the low expectation of privacy in a rental vehicle, and society's interest in adjudication on the merits.

Ultimately, Carvalho was found guilty of simple possession of ecstasy and cocaine found on his person, but not guilty of the charges related to drugs found in the vehicle, as the Crown failed to prove knowledge and control beyond a reasonable doubt.

The accused was charged with fraudulently disposing of property contrary to section 198(1)(a) of the Bankruptcy and Insolvency Act.

The Crown alleged that the accused disposed of a BMW X5 that he had financed but failed to pay for, subsequently claiming it went missing from his driveway.

The trial examined whether the Crown proved beyond a reasonable doubt that the accused disposed of the vehicle.

The court found that while the accused acted fraudulently, the Crown failed to prove that he disposed of the property as opposed to concealing it, and therefore acquitted him of the charge.

The defendants were charged with six counts of contravening section 154 of the Canadian Environmental Protection Act, 1999 (CEPA) for importing motor scooters from China that violated emissions standards and lacked proper documentation.

The Crown alleged the defendants failed to comply with conditions requiring evidence of conformity and adherence to prescribed emissions standards.

The defendants argued they exercised due diligence by hiring compliance consultants, obtaining manufacturer assurances, and relying on EPA certification.

The court found that the Crown failed to prove the actus reus for counts 1-3 (documentation violations) and that the defendants established due diligence as a defence for counts 4-6 (emissions violations).

All charges were dismissed.

The accused was convicted by a jury of importing 3.9 kg of opium.

The court determined the appropriate sentence, finding that the accused had actual knowledge of the opium and was a principal in the importation scheme, not merely a courier.

The court emphasized general deterrence and denunciation, distinguishing the case from others based on the accused's role and lack of significant mitigating personal circumstances.

A sentence of five years imprisonment was imposed, along with a weapons prohibition, victim surcharge, DNA order, and forfeiture order.

The Public Prosecution Service of Canada (PPSC) sought production of a file held by the respondent's former solicitor, Shahzad Siddiqui, contending that the respondent had waived solicitor-client privilege over all communications during the retainer.

The respondent resisted, arguing the waiver was limited to oral communications during a preliminary inquiry.

The court found that the explicit waiver referred only to oral communications and was limited in purpose.

The documents sought were deemed innocuous and would not mislead the court or opposing counsel.

The court dismissed the application for production, upholding the respondent's claim of solicitor-client privilege and ordering the sealed file to remain in court custody.

The applicants brought a motion under section 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence seized during environmental protection inspections and a search warrant executed by officers of the Canadian Environmental Protection Agency.

The applicants were charged with importing tractors and small engines without proof of conformity to Canadian emission standards.

The court found that the December 2009 seizure was unreasonable due to an improperly issued Environmental Protection Compliance Order, the June 2010 seizure was unreasonable as it relied on the prior unlawful seizure, and the September 2010 computer search was unreasonable as the Information to Obtain lacked any grounds to believe relevant documents would be found in a computer.

The court excluded the computer evidence but admitted the seized equipment and observations thereof.

The defendant, Luigi Trinchi, facing a seven-count indictment for distributing fake emails with nude photographs, sought to admit third-party suspect evidence implicating Ms. Donna Bardy.

The Crown opposed the admission of this evidence during the trial.

The court applied the test for admissibility of third-party suspect evidence, requiring the defence to demonstrate a sufficient connection between the third party and the crime, showing motive, opportunity, and propensity.

The court found that the defendant met the evidential burden, ruling the evidence admissible for the trial proper.

The accused challenged the validity of a search warrant executed at their residence on Charter grounds, alleging breaches of sections 8, 7, and 11(d) of the Canadian Charter of Rights and Freedoms.

The Information to Obtain (ITO) was heavily redacted to protect informer privilege.

The court applied the Garofoli step six procedure to determine whether a judicial summary of the redacted portions was sufficient to allow the accused to challenge the warrant.

The court found no Charter breaches and dismissed the application, holding that the ITO contained sufficient reasonable grounds for the search warrant and that the judicial summary adequately protected the accused's right to make full answer and defence while preserving informer privilege.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol concentration over 80mg.

He argued that his s. 9 Charter rights were violated when police randomly stopped his vehicle in a private parking lot without reasonable suspicion.

The Summary Conviction Appeal Court dismissed the appeal, holding that the common law police power to randomly stop vehicles to check driver sobriety, as established in Dedman, applies on private property and does not require individualized reasonable suspicion.

Because the stop was lawful under common law, it was not an arbitrary detention.

The accused, a registered confidential informant, was charged with serious drug offences after receiving a package containing illicit drugs via a controlled delivery.

The accused testified they did not know the package contained drugs and had attempted to contact their police handler about their suspicions.

The court acquitted the accused, finding the Crown failed to prove knowledge or wilful blindness beyond a reasonable doubt.

Alternatively, the court granted a stay of proceedings under section 24(1) of the Charter, finding the police committed an egregious abuse of process by breaching informer privilege, involving the accused's handlers in the arrest, and releasing the accused into a dangerous situation to further the investigation.

The applicant sought to exclude evidence obtained during a Canada Revenue Agency audit of his company and subsequent search warrants, alleging breaches of sections 7 and 8 of the Canadian Charter of Rights and Freedoms.

The applicant contended that the CRA auditor's predominant purpose was to investigate his alleged criminal tax liability rather than conduct a civil compliance audit.

The court found that the audit remained a bona fide compliance audit until the auditor received answers to the first query on July 14, 2010, at which point the auditor's predominant purpose shifted to a penal investigation.

The court excluded evidence obtained through the second query but admitted evidence from the first query and the search warrant execution.

Maple Lodge Farms was convicted of twenty counts of violating the Health of Animals Act and Regulations by failing to prevent undue suffering of chickens during transportation through inadequate protection from adverse weather and insufficient ventilation.

Between December 2008 and April 2010, over 25,450 chickens died during transport or upon arrival at the facility.

The corporation received a fine of $80,000 on two representative counts and a three-year suspended sentence with probation on the remaining eighteen counts.

The probation order required the corporation to expend a minimum of $1,000,000 on capital improvements to trailers, holding facilities, and transportation procedures, with oversight by an independent expert and the Canadian Food Inspection Agency.

Maple Lodge Farms Ltd. was charged with two counts of transporting animals in a manner likely to cause undue suffering due to undue exposure to weather, contrary to section 143(1)(d) of the Health of Animals Regulations and section 65(1) of the Health of Animals Act.

Count 7 involved the transportation of 9,576 broiler chickens on December 30-31, 2008, with 711 birds (7.4%) found dead on arrival.

Count 34 involved the transportation of 10,944 spent hens on February 23, 2009, with 1,181 birds (10.8%) found dead on arrival.

The Crown alleged that inadequate protection from cold and wet weather conditions caused undue suffering and death.

The defendant argued it followed standard operating procedures and industry practices.

The court found the defendant guilty on both counts, determining that the defendant failed to take all reasonable steps to prevent the prohibited acts, particularly through failures in monitoring, training, and adherence to industry guidelines.

During a blended voir dire in a prosecution for possession for the purpose of trafficking and possession of proceeds of crime, the Crown sought to admit a videotaped police interview with the accused.

The court assessed whether the Crown had proven beyond a reasonable doubt that the statement was voluntary under the common law confessions rule.

The evidence showed the interviewing officer repeatedly suggested that providing information was required for the accused’s bail report and failed to provide a police caution informing the accused that statements could be used against him at trial.

Considering the inducement relating to bail and the absence of a caution, the court found a reasonable doubt about voluntariness.

The statement was ruled inadmissible.

The defendant was charged with three offences under the Bankruptcy and Insolvency Act: making a material omission in her Statement of Affairs, failing to disclose approximately $40,000 in cash to her trustee, and failing to disclose the same funds in a subsequent Statement of Affairs.

The defendant had declared bankruptcy in September 2007, omitting reference to cash seized by police in January 2007.

She later sought recovery of the seized funds in July 2008, claiming ownership.

The court found the defendant not guilty of the first and third counts but guilty of the second count for failing to inform the trustee of her ownership of the funds between September 2007 and August 2008.