Hilton, Vauclair, Beaupré
Application for leave to appeal and appeal from a conviction on charges of possession of a restricted firearm with readily accessible ammunition and failing to properly store a firearm. Application allowed and appeal granted; a stay of proceedings is ordered.
At trial, the appellant’s application to quash the search warrant and exclude the evidence were dismissed, as was his application for a stay of proceedings due to abuse of process based on section 24(1) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I).
The weapon and the ammunition were seized from the appellant’s residence during a search carried out in December 2013. The search warrant was issued on the basis of alleged facts obtained from an informant and investigations conducted by the police.
The detective sergeant hid the fact that he was acting simultaneously as the investigator on the case, the informant’s handler, and the affiant from the authorizing judge. In addition, he falsely stated that he had become aware of the alleged facts from reading a document that came from the informant, when he actually obtained them directly from the informant during one of their meetings. Moreover, he purposefully destroyed the notes he had taken during that meeting, which he stated that he always did, without informing his superiors and despite the policy in effect within the Montreal police department concerning the retention of documents related to informants.
The grounds concerning the apparent sufficiency of the information, the procedure used during the voir dire, the impact of the inaccuracies, and consequently, the exclusion of the evidence obtained are rejected. The appellant did not establish the unlawfulness of the warrant or a violation of his right to be secure against unreasonable search or seizure guaranteed by section 8 of the Charter.
However, the procedure followed by the detective sergeant to obtain a warrant to search a dwelling house and his explanations in this regard shock the conscience of the community and clearly call for a stay of proceedings. The detective sergeant’s conduct showed unacceptable negligence, indifference or recklessness in regard to the future criminal proceeding and the rights of the accused, in particular with respect to the duty to preserve the evidence. Moreover, the detective sergeant deprived the appellant of the possibility of obtaining the notes by court order or otherwise, subject to informant privilege. In addition, his information departs considerably from the requirements of sincerity, clarity and the absence of deceit. The detective sergeant acknowledged that the result of the seizure was more important to him than the impact of his conduct on the process that led to it. The courts cannot tolerate such a lack of transparency in ex parte proceedings seeking to search a dwelling house.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca