Cite as: R. v. Carroll, 1989 NSCA 2 IN THE SUPREME COURT OF NOVA SCOTIA
APPEAL DIVISION
lkcdonald, Pace and Matthews, JJ-A.
DAVID MacDONALD CARROLL and PATRICK WILLIAM BARKER Appellants - and - HER MAJESTY THE QUEEN Respondent THE COURT: Appeal of the appellant, David MacDonald Carroll, dismissed. Appeal of the appellant, Patrick William Barker, allowed, search warrant set aside and items seized ordered returned as per reasons for judgment of Macdonald, J.A.; concurring. S.C.C. No. 01886
) ) D. R. Beveridge 1 for the Appellants ) ) D. W. ~iovannetti for the Respondent Appeal Heard: November 16, 1988 1 ) Judgment Delivered: January 4, 1989 Pace and Matthews, JJ.A.
MACDONALD, J.A.:
This is an appeal by the appellants, David MacDonald
Carroll (Carroll) and Patrick William Barker (Barker) from
the decision of Mr. Justice Davison in Trial Division Chambers
(reported in (1988), 84 N.S.R. 2nd 309) whereby he dismissed
their applications for orders in the nature of certiorari
to quash search warrants and for the return of items seized
under such warrants.
The background of this matter may be briefly stated.
Sometime around mid afternoon on March 7, 1988 the body of
a man later identified as Trevor Lawlor was found in the
Chezzetcook area of Halifax County. He apparently had died
of gun shot wounds. The appellant, David MacDonald Carroll,
was subsequently charged with first degree murder in relation
to the death of Mr. Lawlor. Following a preliminary inquiry
he was committed to stand trial on a charge of second degree
murder. His trial is slated for hearing in February 1989.
The appellant Barker has not been charged with any offence
in relation to the death of Mr. Lawlor.
On the late afternoon or early evening of March 7,
1988 Constable D. R. Williams of the R.C.M. Police applied
to and obtained from Stewart Duffie, a Justice of the Peace,
search warrants to search the vehicle and residence of Carroll;
the residence of Barker and the vehicle of one John Ambrose
Long. The warrants were executed and certain items were seized.
All seized items have now been returned to their owners except
for three shot gun shells found in the residence of Mr. Barker
and a set of keys found in the Long vehicle. The keys are
not an issue on this appeal. The warrant to search the Long
vehicle was quashed by Mr. Justice Davison on the ground that
there was no evidence upon which Mr. Duffie, acting judicially,
could determine that a search warrant should be issued to
search that vehicle.
Mr. Justice Davison however held that there was sufficient evidence to satisfy the requirements of s. 443 of the -Code and declined to quash the warrants issued to search the residences of Carroll and Barker and the vehicle of Carroll. The grounds of appeal that call for consideration
here allege:
"That the Learned Judge erred in finding
that there was some evidence upon which
a Justice of the Peace could have reasonable
and probable grounds to issue the Search
Warrant to the Appellant Barker's house.
That the Learned Judge erred in finding
that there was some evidence upon which
a Justice of the Peace could have reasonable
and probable grounds to issue the Search
Warrant to the Appellant Carroll's house."
The issuance of search warrants is governed by s.
487(1) (formerly s. 443(1)) of the Criminal Code which reads
as follows:
"487. (11 A justice who is satisfied by
information on oath in Form 1 that there
is reasonable grounds to believe that
there is in a 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 t h a t grounds t o b e l i e v e with r e s p e c t t o t h e commission of an of fence a g a i n s t t h i s A c t Par l iament , o r ( c ) anything t h a t ground t o be l i eve i s in tended f o r t h e purpose of a g a i n s t t h e person may be a r r e s t e d wi thout war ran t , may a t any t ime i s s u e h i s hand au tho r i z ing a person named t h e r e i n o r a peace o f f i c e r ( d ) t o s e a r c h t h e o r p l a c e f o r any such it, and ( e ) s u b j e c t t o any o the r A c t of Par l iament , t o , a s soon a s p r a c t i c a b l e , t h i n g se ized before , i n r e s p e c t thereof o r some o t h e r j u s t i c e t e r r i t o r i a l d i v i s i o n s e c t i o n 489.1." From i t s e a r l i e s t recognized t h e s a n c t i t y of a t h e issuance of a warrant t o s ea rch n o t a per func tory ma t t e r . enab le t h e p o l i c e t o go on a can on ly be i s sued a f t e r t h e j u s t i c e of t h e peace i s s a t i s f i e d t h a t t h e informat ion o f f e r e d i a s ea rch war ran t meets t h e requirements Code. In R e United D i s t i l l e r s 900, 88 C.C.C. 338 a t page 341, o u t : " I t has been recognized t o s ea rch i s t h e enactment and i s t h e r e a r e reasonable w i l l a f f o r d evidence o r any o t h e r Act of t h e r e i s reasonable t o be used committing any offence f o r which a person a war ran t under b u i l d i n g , r e c e p t a c l e t h i n g and t o s e i z e b r ing t h e o r make a r e p o r t t o , i n t h e j u s t i c e f o r t h e same i n accordance with beginnings Engl ish Law has pe r son ' s home and, t h e r e f o r e , a p r i v a t e dwel l ing i s Warrants must no t be i s s u e d t o " f i s h i n g expedi t ion" b u t r a t h e r n suppor t of t h e r e q u e s t f o r of s . 487(1) of t h e Limited, (19471 3 D.L.R. Chief J u s t i c e F a r r i s po in t ed t h a t a warrant r e s u l t of a s t a t u t o r y repugnant t o t h e o l d
common law that a man's home or premises
is his castle. That such a warrant should
not be liqhtly granted seems to be
recognized by all of the leading authorities
and properly so, and that the Magistrate
in granting such warrant should have
reasonable information before him to entitle
him to judicially decide whether such
warrant should issue or not."
A justice of the peace in deciding to grant a search
warrant is performing a judicial function. The scope of review
of his decision is limited to an inquiry whether or not there
was some evidence upon which he, acting judicially, could
be satisfied that reasonable grounds existed for believing
any of the things set out in s. 487(1)(a) to (c) of the Criminal
-Code. The reviewing court cannot substitute its opinion as to the sufficiency of the evidence. The test is, therefore, not whether the justice of the peace should have been satisfied on the evidence presented to him, but rather could he have been satisfied on such evidence that there were reasonable and probable grounds for believing that the articles sought would be of assistance in establishing the commission of an offence and would be found in the premises sought to be searched. See: Re Church of Scientoloqy and The Queen (6) (19871, 31 C.C.C. 3rd 449 (Ont. C.A.).
The search warrants we are concerned with authorize
the search of the residences of Carroll and Barker. The warrant
issued to search Carroll's car is not challenged. All the warrants were led by the affidavits of Constable Williams and were in Form 1 as required by s. 487 of the -Code.
The Carroll Warrant
Mr. Carroll resided at the material time at Civic
No. 6178 Chebucto Road in the City of Halifax. Constable
Williams in his sworn information stated that there were
reasonable grounds for believing that in Mr. Carroll's residence
would be found things including a hand gun, clothing,
ammunition, rope and gloves that would afford evidence that
Carroll on or about the 7th day of March, 1988 "did unlawfully
cause the death of John Doe and did thereby commit first degree
murder, contrary to Section 218(1) of the Criminal Code".
The Constable stated in the sworn information that his grounds
for such belief were:
"That we have a confidential source who observed the accused's vehicle at the scene of a murder and copied license number of vehicle. That a body was found at the scene with obvious suspicious circumstances surrounding the death. The license number supplied ATN763, registered owner of vehicle is David MacDonald Carroll. " The identity of the deceased had not been established
when the search warrants were applied for and issued hence
the reference to John Doe.
On the strength of the information contained in
Constable Williams' affidavit, the justice of the peace issued
a warrant to search Carroll's residence. The warrant was
executed and numerous items seized. A report was subsequently
made to the justice of the peace who ordered that all items
seized be detained. As already mentioned, all items seized
from the Carroll residence under the search warrant have now
been returned.
In dismissing the appellants' applications to quash
the search warrants, Mr. Justice Davison said (p. 313):
"I have no difficulty in finding that
the justice had in£o rmation be£ ore him
which constituted reasonable grounds to
believe that the necessary conditions
for a warrant to search the residence
and motor vehicle of David MacDonald Carroll
and the residence of Patrick William Barker
were present.
Information was available to the effect
that a motor vehicle registered in the
name of David MacDonald Carroll was seen
at the scene in the 'murder' and that
a body was found at the scene 'with obvious
suspicious circumstances'.
Information was presented to the effect
that Patrick William Barker was seen in
the company of David MacDonald Carroll
'hours after the fact'. It is obvious
the 'fact' was related to the time of death or discovery of the body. I find there was evidence by which the justice could be satisfied that the residences and the motor vehicles of the applicants would afford evidence of the commission of the offence." I agree with the learned Chambers judge that the
issue is not whether on the information he had before him,
the justice of the peace should have issued the search warrant.
Rather the sole issue is whether the sworn information of
Constable Williams set forth facts upon which Mr. Duffie,
acting judicially could be satisfied that there were reasonable
grounds to believe that the hand gun, etc. would be found
at the residence of Carroll and would afford evidence that
he had caused the death of "John Doe and did thereby commit
first degree murder contrary to Section 218(1) of the Criminal
-Code. " . The presence of Carroll's vehicle at the scene of
the crime was some evidence that would support and justify
the issuance of the warrant to search such vehicle. Indeed
that warrant is not challenged on this appeal. Under the
circumstances the same evidence introduced on the application
for the warrant to search Carroll's residence was considered
by the learned Chambers judge to be "some" evidence upon which
Mr. Duffie could be satisfied that the application for the
warrant to search Carroll's residence should be granted.
I must say that it seems to me that the validity
or otherwise of the Carroll warrant appears perhaps to be
"moot" or academic given the fact that all items seized under
the warrant have been returned. In any event, the presence
of Carroll's car at the scene of the murder created a somewhat
tenuous and rebuttable nexus between Carroll and the crime.
I am therefore not persuaded that Mr. Justice Davison
misdirected himself in law or misinterpreted material evidence
of fact in reaching the conclusion that the warrant to search
Carroll's evidence was validly issued. I would therefore
dismiss Mr. Carroll's appeal.
The Barker Warrant
In deciding whether reasonable grounds existed for
the belief required under s. 487 (l)(a) to (c) of the Code
to justify the issuance of a warrant to search Barker's
residence, the justice of the peace was bound by and restricted
to the information supplied to him by Constable Williams under
oath and in Form 1. (See: Re Worrall, 119651 2 C.C.C. 1 Ont.
C.A. ) . In the Form 1 information tendered by Constable
Williams in support of his application for a warrant to search
Mr. Barker's residence, he said that there were reasonable
grounds for believing that certain things including a hand
gun, ammunition, rope, clothing and gloves were in the Barker
residence and would afford evidence that Mr. Barker on or
about March 7, 1988 "did unlawfully cause the death of John
Doe and did thereby commit first degree murder, contrary to
Section 218(1) of the Criminal Code." The Constable's stated
grounds for such belief were:
"The person named within was in the company of David MacDonald Carroll, suspect in the murder of John Doe, located in the city of Dartmouth only hours after the fact." What does that information establish? It does no
more than place Barker in Carroll's company some hours after
the murder and at a location quite removed from the murder
scene. Without more there is nothing to connect Barker to
the murder or to the murderer at the time the killing occurred;
and indeed nothing to implicate him in any way with the killing.
The fact that he was in Carroll's company in another person's
car hours after the killing and in a different location does
not in my opinion sufficiently connect Barker to the murder
so as to justify the issuance of a warrant to search his
residence. The warrant was issued on the alleged basis that
evidence would be found in Barker's residence implicating
him in the murder or that at least was relevant to the murder
investigation. No support for such allegation appears from
the record. I have, therefore, concluded that there was no
factual basis revealed by Constable Williams' affidavit upon
which a justice of the peace acting judicially could be
satisfied that reasonable grounds existed for believing any
of the things set out in s. 487 (ll(a) to (c) of the Code.
The lack of such essential factual basis renders invalid the
issuance of the search warrant and the warrant itself
The search of Barker's residence having been done without the benefit of a valid search warrant was prima facie unreasonable - see Hunter et a1 v. Southam Inc., [I9841 2 S.C.R. 145, 14 C.C.C. (3d) 97 - the issue then becomes whether the warrantless search was in fact unreasonable.
Not every warrantless search is necessarily
unreasonable under s. 8 of the Charter. I agree with the
following comment of Martin, J.A. in -R. v. Harris et a1 (1987), 57 C.R. (3d) 356 at page 378:
"I find it difficult to think, however,
that mere minor or technical defects in
the warrant automatically make an ensuing
search or seizure unreasonable under s.
8 of the Charter where the officer executing
the warrant reasonably believes that he
or she is acting under a valid warrant
and where the defect is not such as to
prejudice the interests that s. 8 was
designated to protect."
In Harris Mr. Justice Martin also said (page 377-378):
"In my view, a search or seizure conducted
under a search warrant that is invalid
in substance because it was issued upon
an information that does not set out facts
upon which the justice acting judicially
could be satisfied that there are reasonable
grounds to believe that an offence has
been committed and that there is evidence
to be found at the place of search is
unreasonable under s. 8 even though the
officer executing the warrant believed
that he or she was lawfully authorized
by the warrant to conduct the search."
In my opinion, the Barker warrant was, in substance, fundamentally invalid and therefore, the illegal search and seizure under it were unreasonable under s. 8 of the Charter and could not be converted into a reasonable search and seizure even if it could be said that the police officers had reasonably relied on the warrant. In my view, even objectively reasonable good faith cannot transform an illegal search, where the illegality is one of substance, into a reasonable one. --R. v. Harris et al, supra, at p. 378. In the unreasonable and warrantless search of the Barker residence the police seized three shot gun shells. Barker now asks that they be ordered returned to him. The Crown contends that they should be ordered retained because
they have already been tendered in evidence at Carroll's
preliminary hearing and it is contemplated that they will
be required for his trial.
Apart altogether from the issue of the appropriate remedy for breach of Barker's right to be secure against unreasonable search and seizure, this Court has a discretion to order the shot gun shells returned to Mr. Barker or retained by the Crown. That discretion is founded on the inherent power of the Court incidental to its jurisdiction to quash the search warrant - see In Re Chapman and The Queen (19841, 12 C.C.C. (3d) 1 (Ont. C.A.I.
In Chapman certain items were seized under a search
warrant. No return was subsequently made to the justice of
the peace who issued the warrant and the police hampered the
accused's lawyer in his efforts to obtain a copy of the warrant.
The warrant was quashed because the alleged offence was
insufficiently particularized and because there was no apparent
connection between the alleged offence and the things seized.
~otwithstanding the fact that the items seized were required
by the Crown at a pending trial the motions court judge, Reid,
J., ordered the seized items returned to the accused because:
"The failure to make a return and the treatment of accused's representatives disclose an indifference to the requirements of the Code and to the rights of citizens that should not be condoned by the exercise of a court's discretion. " (See 6 C.C.C. (3d) 296 at p. 300)
In upholding that decision, MacKinnon, A.C.J.O.
speaking for the Court of Appeal said (p. 7 ) : "As has been pointed out by other courts,
it seems strange, if the Crown's position
is to be accepted, that a citizen could
move successfully to quash a search warrant
but if a charge is laid and the Crown
alleges the articles seized are needed
in the prosecution of that charge, the
court has no discretion to order the
articles returned, regardless of the conduct
of the police and serious deficiencies
in the warrant. If that is the law, it
would be pointless, in most cases, for
the citizen to bring an application to
quash the search warrant. His remedy
would, in a practical sense, be meaningless.
In Re Gillis and The Queen (1982), 1 C.C.C.
(3d) 545 at p. 556, 2 C.R.R. 369 sub nom.
Gillis v. Breton et al., Mr. Justice Boilard
stated the point as follows:
The only sanction that may be truly
effective when faced with an illegal search
is to order the return of the things
unlawfully seized. Any other solution
seems to me to be inadequate."
After referring to ss. 8 and 24(1) and (2) of the
Charter associate Chief Justice MacKinnon said (p. 9):
"The order made by Reid J. could be
considered to have been made under s.24(1)
although his inherent jurisdiction to
order the return of the article has not
been taken away by the Charter. Under
either approach, he had the grounds and
the power to make the order he did."
Some courts have taken the position that since the
advent of the Charter there is no discretion in a court and that articles seized under an illegal search warrant -must be returned - see Re Weigel and The Queen (1983). 7 C.C.C. (3d) 81 at p. 86 a decision of the Saskatchewan Court of Queen's Bench and cases therein referred to. In Re Dobney Foundry Limited et a1 and The Queen
(No. 2) (1985). 19 C.C.C. (3d) 465 (B.C.C.A.), Esson J.A.
summarized what he concluded to be the factors relevant to
the exercise of the discretion to order seized goods returned
or retained. This is what he said (p. 474):
"I summarize my conclusions as to the
relevant law:
(1) A reviewing court, on quashing a search
warrant, has power to order return of
any goods seized under the warrant.
(2) If the Crown shows that the things
seized are required to be retained for
the purposes of a prosecution, either
under a charge already laid or one intended
to be laid in respect of a specified
chargeable offence, the court may refuse
to order the return.
(3) No particular formality is required
in order for the Crown to show the requisite
element of necessity to retain the things.
(4) The power to order return of goods
is incidental to the power to quash but
may also arise under s. 24(1) of the Charter
if the search and seizure was unreasonable
as well as illegal.
(5) The conduct of the prosecuting
authorities in relation to the search
and seizure is a factor to be considered
in deciding whether to exercise the
discretion.
(6) Other factors to be considered in
exercising the discretion may be the
seriousness of the alleged of fence, the
degree of potential cogency of the things
in proving the charge, the nature of the
defect in the warrant and the potential
prejudice to the owner from being kept
out of possession."
In Commodore Business Machines Limited v. Calvin
S. Goldman et al. (File No. 759/86 - unreported - judgment delivered March 16, 1988) the majority of the Ontario Court
of Appeal (Cory and McKinlay, JJ.A.1 upheld the decision of
the judge of first instance who after quashing a search warrant
permitted the Crown to retain copies of those documents seized
that were necessary for the prosecution of the offences with
which the appellant was charged. The originals of all the
documents seized had previously been returned to the appellant.
In the majority judgment the following appears:
"Section 24(1) of the Charter of Rights,
by its wordins, contemplates the exercise
of a discretion in the face of a breach
of a Charter right. The trial judge
carefully considered all the legal issues
involved. He determined that he should
follow the reasoning of Justice Esson
of the British Columbia Court of Appeal
in Re Dobney Foundry Ltd. et al. and The
Queen (No. 2 ) (1985). 19 C.C.C. (3d) 465. On the facts of this case, it was
appropriate for the judge of first instance
to quash the authorization but to permit
the respondents to retain the copies of
the documents needed for the prosecution,
and the imminent preliminary hearing which
awaits yet the outcome of this application.
No serious prejudice is occasioned to
the appellant by this exercise of judicial
discretion which permits the Crown to
retain copies of the documents."
The majority then went on to sound the following
note of caution with respect to Re Dobney Foundry Ltd., supra:
".. . It may be that any one of the members of this Court would have reached a different decision as to whether the decision in Re Dobney Foundry Ltd., supra, should be adopted. It may be that in many, if not most, of the situations where a search has been conducted in violation of Charter rights the goods seized should be returned." (my emphasis)
As already mentioned, the shot gun shells seized
from Barker's residence were introduced in evidence on the
preliminary inquiry into the murder charge against Carroll.
The Crown now submits that they are needed for the prosecution
of the murder charge against Carroll and should, therefore,
not be ordered returned to Barker. In this submission reference
is made to the following statement of MacKinnon, A.C.J.O.
in Re Chapman and The Queen, supra, (p. 8):
"I conclude that prior to the passage
of the Canadian Charter of Rights and
Freedoms there was a discretion in the
court to determine, once a search warrant
was quashed, whether articles illeqally
seized should be retained. usually it
was a sufficient 'justification' for the
court to exercise its discretion in favour
of the Crown's retention of the articles if they were said to be needed for the prosecution of an offence charqed." (my emphasis ) The basis for the claim that the shot gun shells are relevant to the charge of murder against Carroll is as follows: Staff Sergeant Swim of the R.C.M. Police testified on the preliminary inquiry into the murder charge against Carroll. He said that two of the shells taken from Barker's residence were twelve gauge shot gun shells of the Imperial brand manufactured by IVI and were marked as containing special SSG shot. On examination he said that they were found to contain SSG shot. Special SSG shot is .33 inches in diameter and is the largest size shot. SSG shot is only marginally smaller with a diameter of .32 inches. A special SSG shot shell contains 12 pieces of lead shot as does a SSG shot shell. The third shell taken from Barker's residence contained bird shot which is the smallest size shot having a diameter of .22 inches.
Crown counsel says that the evidence at Carroll's
trial will establish that Mr. Lawlor died as a result of shot
gun wounds. He says that at least 18 pieces of lead associated
with the shooting were recovered by the police. Staff Sergeant
Swim testified that 4 of such pieces were consistent with
being special SSG shot and that 14 pieces (12 of which were
found in the deceased skull and brain) were consistent with
SSG shot. He said they may or may not have originally been
special SSG shot.
Staff Sergeant Swim testified that SSG and special
SSG shot shells are not lawful for hunting and are not usually found in the possession of civilians. He went on to say, however, that SSG and special SSG shot were legal for hunting up until a few years ago and that "... Lots of people still have it around their houses, but they just don't take it hunting, ..." I have considered this factual background against
the authorities and have concluded. that either as a remedy
under s. 24(1) of the Charter or in the exercise of our inherent
jurisdiction, an order should issue directing that the three
shot gun shells seized from Barker's residence be returned
to him - provided of course they are still intact and are physically capable of being returned. I have reached this conclusion basically for the following reasons: (1) The warrant to search Barker's residence was fundamentally defective in that the grounds set forth for its issuance completely failed to meet the requirements of
Code s. 487(1). The search was unreasonable and was a violation
of Barker's right guaranteed by s. 8 of the Charter to be
secure against unreasonable search or seizure.
(2) The purported justification for the issuance of the search warrant was that items would be found in Barker's residence that would afford evidence that -he murdered the deceased. In actual fact, he was never charged with such murder and indeed has not been charged with any offence arising out of the killing. There is nothing in the record to show upon what grounds he was suspected of murdering Mr. Lawlor
- 17 -
except for the innocuous statement that he was seen in Carroll's
company some hours after the killing. Indeed, as I have already
pointed out, the information supplied to the justice of the
peace did not disclose any grounds for believing that articles
relevant to the murder or to the murder investigation would
be found at Barker's home.
( 3 ) The shot shells did not belong to the accused Carroll but rather to a third party, namely Barker. There is nothing in the record before us indicating upon what reasonable grounds, if any, the police believed that he is involved in the murder either as an accessory or otherwise. There is also no evidence of any close association between Carroll and Barker apart from the fact that the two were together in Long's vehicle on the evening of the murder. ( 4 ) On the record, there appears to be a real question as to the admissibility of the shot gun shells at
Carroll's trial. Admissibility of evidence is, of course,
a matter for the trial judge but the relevancy or lack of
it appears to me to be a proper matter for the court to consider
when determining whether to order illegally seized items
returned or detained. Even assuming that the shot gun shells
are admissible at Carroll's trial, their cogency or weight
appears to be minimal.
The fact that the shot gun shells were exhibits
on Carroll's preliminary inquiry and are considered by the
Crown to be required for his trial does not, in my opinion,
deprive this Court of jurisdiction to order the shells returned
to Barker. See: In Re Chapman and The Queen, supra.
p a r t i c u l a r i l y do I b e l i e v e t h i s t o b e s o when o r d e r e d n o t o n l y on t h e b a s i s a l s o a s a remedy under s . 2 4 ( 1 ) o f t h e C h a r t e r . I n r e s u l t , I would b u t would a l l o w t h e a p p e a l of and o r d e r of M r . J u s t i c e Davison t h e w a r r a n t i s s u e d t o s e a r c h t h e t h r e e s h o t gun s h e l l s s e i z e d from h i s p r e m i s e s be f o r t h w i t h r e t u r n e d t o him. A.J . A/.+
Concurred i n : Pace , J . A .
Matthews , J .A
t h e r e t u r n i s of i n h e r e n t j u r i s d i c i t i o n b u t d i s m i s s t h e a p p e a l o f C a r r o l l Barke r , se t a s i d e t h e d e c i s i o n w i t h r e s p e c t t o him; quash h i s r e s i d e n c e and o r d e r t h a t
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