ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-16
DATE: 20120425

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – JOSEPH ARSENAULT Respondent

W. Beatty, for the Applicant
N. Williams and G. Sandberg, for the Respondent

HEARD: April 4 & 5, 2012

ELLIES, J.

RULING ON APPLICATION TO EXCLUDE EVIDENCE UNDER

SECTION 24(2) OF the CHARTER

[ 1 ] In this pretrial motion, the accused seeks an order excluding evidence that he argues was obtained in violation of his right under section 8 of the Charter to be free from unreasonable search and seizure. The application is unusual in that the same judicial authorization pursuant to which the evidence was obtained has already been the subject of a successful application by the accused under section 8 of the Charter. Therefore, Mr. Arsenault also argues that the Crown is estopped from re-litigating the issue under that section. Both sides agree that, even if that argument succeeds, it will be necessary to consider whether the evidence should be excluded under section 24(2) of the Charter .

Background Facts

[ 2 ] The Crown alleges that the accused rigged the vehicle of the victim to explode by means of a spark plug inserted into the gas tank of the vehicle and wired to the engine. The victim was the former Director of Education for the West Parry Sound Board of Education (the “Board”), as it was then known, and the accused was previously employed as a teacher for the Board. The victim was involved in disciplinary action against the accused, testified for the Crown at the accused’s trial on a charge of sexual exploitation, and participated in the accused’s eventual dismissal from employment with the Board.

[ 3 ] Two warrants are at issue. The first is a General Warrant, issued pursuant to section 487.01, which reads:

A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act or Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

[ 4 ] This provision was enacted to provide for the judicial authorization of investigative techniques, such as video surveillance and surreptitious entry, not otherwise capable of judicial preauthorization. [1]

[ 5 ] Such a warrant was issued by Duchesneau-McLachlan, J. of the Ontario Court of Justice on August 11, 1999. In support of the request for a General Warrant, an information to obtain a General Warrant (“ITO”) was sworn by Ontario Provincial Police Officer Dean Ward. Officer Ward was called to testify during the hearing of this application, on consent, and was cross-examined on behalf of the accused. During his evidence, he corrected several errors, as he is entitled to do. [2] Those errors included a reference to a “ Criminal Code Search Warrant”, as opposed to a “ Criminal Code General Warrant” (ITO, para. 4), and information Officer Ward obtained subsequent to submitting the ITO, to the effect that the accused was convicted in 1998 of assaulting a police officer, rather than obstructing one (ITO, para. 9). I will return to the officer’s evidence when I deal with the issue raised under section 24(2). I will refer more specifically to the content of the ITO when I address the issue under section 8.

[ 6 ] The second warrant involved was issued under section 11 of the Controlled Drugs and Substances Act (“CDSA”). That warrant was issued based on information and observations that were made by the police when they acted upon the General Warrant by surreptitiously entering the accused’s cottage property on August 25, 1999. At that time, they observed evidence of marijuana and resin production. During a search authorized by the CDSA warrant, which was executed on August 27, 1999, the police also seized clippings of electrical wire, wire cutters, plastic wire connectors, orange Autolite spark plug wire, black-coated copper wire, a Champion L82C spark plug, a black plastic gas cap retainer with one end cut, grey spark plug wire, blue spark plug wire, needle-nose plyers, and tin snips. This is the evidence that the accused argues was obtained in violation of his section 8 rights and should be excluded in the upcoming trial on charges, including attempt murder.

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Ellies, J.

Released: 20120425