R. v. DeWolfe

R. v. DeWolfe

ss.11(1) and 12(b) of the CDSA are not inconsistent with s.8 of the Charter because s.11(1) satisfies Hunter v. Southam requirements (prior judicial authorization on oath and reasonable grounds) and the justice retains discretion to limit timing; the manner of search (night entry or use of force) must be reasonable and is properly reviewed after the fact under s.24(2), and s.12(b) authorizes only necessary force compatible with s.8.

Citation
2006 NSPC 9
Parties
Crown/prosecution: Her Majesty the Queen; Applicant/accused: Christopher Lee DeWolfe
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
24 March 2006
Procedural Posture
Criminal Constitutional Challenge Under S.52 of the Constitution Act / Ruling on S.52 Application (pre Trial)
Outcome
s.52 application dismissed; ss.11(1) and 12(b) of the CDSA upheld as consistent with s.8 of the Charter
Legal Topics
S.8 Charter Unreasonable Search, S.52 Constitution Act Application, Search Warrants, Night Searches, Use of Force, Knock and Notice Rule, S.24(2) Exclusion
Source Language
English
Constitutional Law Criminal Law Search and Seizure Controlled Drugs and Substances Act S.8 Charter Unreasonable Search S.52 Constitution Act Application Search Warrants Night Searches +3 more

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Parties

Her Majesty the Queen

Crown/prosecution

Christopher Lee DeWolfe

Applicant/accused

Procedural Posture

Criminal Constitutional Challenge Under S.52 of the Constitution Act / Ruling on S.52 Application (pre Trial)

Legal Issues

  1. 1 Whether s.11(1) CDSA is inconsistent with s.8 Charter because it permits warrants to be executed "at any time" without specific authorization for night searches
  2. 2 Whether s.12(b) CDSA is inconsistent with s.8 Charter because it permits use of force without prior judicial authorization thereby abrogating the common law knock/notice rule
  3. 3 Whether prior judicial authorization is required for manner of search (night entry or forced entry) or whether after‑the‑fact Charter remedies suffice

Ratio Decidendi

ss.11(1) and 12(b) of the CDSA are not inconsistent with s.8 of the Charter because s.11(1) satisfies Hunter v. Southam requirements (prior judicial authorization on oath and reasonable grounds) and the justice retains discretion to limit timing; the manner of search (night entry or use of force) must be reasonable and is properly reviewed after the fact under s.24(2), and s.12(b) authorizes only necessary force compatible with s.8.

Court Disposition

s.52 application dismissed; ss.11(1) and 12(b) of the CDSA upheld as consistent with s.8 of the Charter

Orders

  • s.52 application dismissed
  • Criminal proceedings to continue on charge contrary to s.5(2) CDSA