R. v. Calder

R. v. Calder

On a balance of probabilities the Crown proved that Sgt. Gross's sworn affidavit, including Exhibit A, was presented to and relied upon by Madam Justice Loo in granting Authorization P2-2000; the applicable standard for these preliminary facts is the civil standard; the presumptions of regularity and validity were not rebutted; the omission of the duration in paragraph 57 was a minor inadvertent error properly cured by amplification; accordingly Authorization P2-2000 is valid and the objection based on absence of sworn evidence fails.

Citation
2001 BCSC 83
Parties
Crown: Her Majesty the Queen; Accused: Randy Kendall Calder
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
13 September 2001
Procedural Posture
Criminal Second Degree Murder; Voir Dire on Wiretap Admissibility / Voir Dire on Admissibility of Intercepted Private Communications (authorization P2 2000)
Outcome
Objection to admissibility based on absence of sworn affidavit dismissed; Authorization P2-2000 held valid on the voir dire; authorization may stand subject to further consideration of amplification on s.185(1)(g) issue
Legal Topics
Wiretap Authorization, S.185(1) Criminal Code, S.189(5) Criminal Code, S.185(1)(g) Duration Requirement, S.8 Charter Unreasonable Search and Seizure, Presumptions of Regularity and Validity, Amplification on Review, Standard of Proof for Preliminary Facts
Source Language
English
Criminal Law Evidence Charter Rights Search and Seizure Telecommunications/wiretapping Wiretap Authorization S.185(1) Criminal Code S.189(5) Criminal Code +5 more

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Parties

Her Majesty the Queen

Crown

Randy Kendall Calder

Accused

Procedural Posture

Criminal Second Degree Murder; Voir Dire on Wiretap Admissibility / Voir Dire on Admissibility of Intercepted Private Communications (authorization P2 2000)

Legal Issues

  1. 1 Whether the Crown must prove a sworn affidavit supported the wiretap authorization
  2. 2 What standard of proof applies to those preliminary facts
  3. 3 Whether the sworn affidavit of Sgt. Gross was presented to and relied on by the authorizing judge

Ratio Decidendi

On a balance of probabilities the Crown proved that Sgt. Gross's sworn affidavit, including Exhibit A, was presented to and relied upon by Madam Justice Loo in granting Authorization P2-2000; the applicable standard for these preliminary facts is the civil standard; the presumptions of regularity and validity were not rebutted; the omission of the duration in paragraph 57 was a minor inadvertent error properly cured by amplification; accordingly Authorization P2-2000 is valid and the objection based on absence of sworn evidence fails.

Court Disposition

Objection to admissibility based on absence of sworn affidavit dismissed; Authorization P2-2000 held valid on the voir dire; authorization may stand subject to further consideration of amplification on s.185(1)(g) issue

Orders

  • Objection based on absence of sworn evidence dismissed
  • Authorization P2-2000 found valid and was properly issued by Madam Justice Loo