Frederick Allen Clark v. Her Majesty the Queen

(British Columbia) (Criminal) (By Leave)


Canadian charter (Criminal) - Search and seizure (s. 8), Criminal law.


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Charter of Rights — Search and Seizure — Criminal law — Telewarrant — At what point does a Justice “cross the line” into providing inappropriate assistance to a police officer seeking an ex parte authorization — What is the test for determining that there is no evidence supporting an inference — What does “impracticable” mean in the context of s. 487.1(4)(a) of the Criminal Code — Whether a trial judge’s finding with respect to whether or not an Information to obtain a telewarrant contains sufficient information to meet the impracticability requirement is a finding of fact, or an issue of law alone from which the Crown can appeal an acquittal — ss. 8 and 24(2) of the Charter.

During the early morning hours of Friday, December 23, 2011, a Royal Canadian Mounted Police officer obtained a telewarrant to investigate theft of electricity at a residence near Kelowna, British Columbia. During the execution of that warrant the police discovered not only an electrical by-pass, but a large marihuana grow-operation. The applicant, who was inside the residence when the police arrived, was charged with production of marihuana, possession of marihuana for the purpose of trafficking, and theft of electricity. In his ruling, the trial judge found the telewarrant invalid because the judicial justice assisted the officer in preparing his information to obtain. The judge went on to hold that because the telewarrant was invalid its execution infringed the applicant’s s. 8 Charter right to be secure against unreasonable search and seizure and that the admission into evidence of the drugs and other items seized by the police would bring the administration of justice into disrepute. The Court of Appeal held that the telewarrant was properly issued, and the trial judge’s decision to exclude the evidence tendered by the Crown could not stand. The Court of Appeal allowed the appeal and ordered a new trial.