Steven M. Fishbayn

The applicant sought to quash two search warrants and exclude seized evidence under s. 8 and s. 24(2) of the Canadian Charter of Rights and Freedoms, arguing the warrants were issued without reasonable and probable grounds.

The Crown contended the searches were lawful and, alternatively, that evidence should be admitted.

The court reviewed the information to obtain (ITO) based on five confidential informants and extensive police surveillance, applying the Garofoli and Debot tests for assessing search warrant validity and informant reliability.

The court found that the totality of circumstances, including corroborated informant tips and observed patterns of suspicious activity (such as chemical burns and continuous occupation of a barn suspected of housing a clandestine drug lab), provided reasonable and probable grounds for the warrants.

The application was dismissed, as no s. 8 Charter breach was found.

The applicant sought leave to cross-examine the affiant and sub-affiants of an Information to Obtain (ITO) for search warrants related to a methamphetamine lab.

The court dismissed the application, finding that the proposed cross-examination areas were either irrelevant, speculative, risked breaching confidential informant privilege, or would not elicit probative value to discredit the reasonable grounds for the warrant's issuance.

The court emphasized the high threshold for granting leave to cross-examine affiants, the importance of protecting informant identity, and the need to avoid unnecessary and time-consuming proceedings.

The applicant sought an order to release seized funds for legal fees and a declaration that s. 462.37(3) of the Criminal Code violates Charter rights if applied to such fees, creating a conflict of interest for counsel.

The Crown resisted, arguing lack of jurisdiction and prematurity for the constitutional issue.

The court found jurisdiction to release the funds, distinguishing previous case law, and determined the applicant had no other means to pay.

However, the court dismissed the declaratory relief, deeming the constitutional question premature as several contingencies must occur before s. 462.37(3) could apply, and emphasized that an offender truly unable to pay a fine in lieu of forfeiture would not face incarceration.

The accused applied for a stay of proceedings under s. 24(1) of the Charter or, alternatively, exclusion of evidence under s. 24(2), alleging breaches of ss. 7 and 9 arising from a lengthy investigative detention.

Police detained the accused for approximately 2.5 hours while investigating a stabbing and a gun call before locating a bag containing two loaded firearms.

The court held that while the initial investigative detention was justified, the duration exceeded permissible limits and therefore infringed s. 9 of the Charter.

However, the court found no causal connection between the detention and the discovery of the firearms and concluded the police conduct did not amount to an abuse of process.

A stay of proceedings was therefore not warranted.