R. v. Chenier and Zarowny

R. v. Chenier and Zarowny

After expunging the Hydro consumption statements (paras.19–20) as erroneous and finding the odour evidence from Corporal Preston unreliable and therefore expungible, the remaining ITO material, even with permissible amplification, did not provide sufficient reliable information for the issuing justice to have lawfully authorized the warrant; accordingly the warrant was quashed and the evidence obtained was excluded under s.24(2) of the Charter. The court did not decide whether the telecommunication requirements of s.487.1 were met.

Citation
2007 BCSC 263
Parties
Crown: Regina; Accused: Joseph Rosario Chenier; Accused: Lisa Ann Zarowny
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
18 January 2007
Procedural Posture
Criminal (controlled Drugs and Substances Act Production and Possession for Purpose of Trafficking) / Voir Dire (review of Search Warrant); Pre Trial Application to Quash Warrant and Exclude Evidence Under S.24(2) Charter
Outcome
Search warrant quashed; evidence obtained by the search excluded under s.24(2) Charter; Crown directed to stay proceedings; forfeiture of seized drugs ordered.
Legal Topics
Search Warrant Validity, Telecommunication Issuance of Warrants (s.487.1), Information to Obtain (ito) Disclosure and Amplification, Excision of Misleading Information, Reliability of Informant Odour Evidence, Forfeiture
Source Language
English
Criminal Law Search and Seizure Charter Law Evidence Search Warrant Validity Telecommunication Issuance of Warrants (s.487.1) Information to Obtain (ito) Disclosure and Amplification Excision of Misleading Information +2 more

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Parties

Regina

Crown

Joseph Rosario Chenier

Accused

Lisa Ann Zarowny

Accused

Procedural Posture

Criminal (controlled Drugs and Substances Act Production and Possession for Purpose of Trafficking) / Voir Dire (review of Search Warrant); Pre Trial Application to Quash Warrant and Exclude Evidence Under S.24(2) Charter

Legal Issues

  1. 1 Whether the warrant issued by telecommunication complied with s.487.1(4)-(5) of the Criminal Code (judge did not decide)
  2. 2 Whether the Information to Obtain contained erroneous or misleading information such that, after excision and appropriate amplification, there remained insufficient reliable information to authorize the warrant
  3. 3 Whether the evidence of an odour of marihuana reported by Corporal Preston was reliable

Ratio Decidendi

After expunging the Hydro consumption statements (paras.19–20) as erroneous and finding the odour evidence from Corporal Preston unreliable and therefore expungible, the remaining ITO material, even with permissible amplification, did not provide sufficient reliable information for the issuing justice to have lawfully authorized the warrant; accordingly the warrant was quashed and the evidence obtained was excluded under s.24(2) of the Charter. The court did not decide whether the telecommunication requirements of s.487.1 were met.

Court Disposition

Search warrant quashed; evidence obtained by the search excluded under s.24(2) Charter; Crown directed to stay proceedings; forfeiture of seized drugs ordered.

Orders

  • Forfeiture order for the seized drugs