R. v. Global Tesol College Corporation, 2011 ABQB 56

Court of Queen ’ s Bench of Alberta Citation: R. v. Global Tesol College Corporation, 2011 ABQB 56 Date: 20110203 Docket: 101140929X1 Registry: Edmonton Between: Global Tesol College Corporation, Lorne Yaremchuk and Silvia Yaremchuk Applicants - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.M.

Lutz _______________________________________________________ Introduction [ 1 ] The Applicants apply for an order in the nature of certiorari to quash five search warrants, and for a direction that certain seized articles be returned. [ 2 ] In November 2005, the Canada Revenue Agency (CRA) began an investigation into the business activities of Global Tesol College Corporation, Loren Yaremchuk and Silvia Yaremchuk (the Applicants). [ 3 ] On March 18, 2010, Bruce Breitkreuz of CRA attended before Justice of the Peace Richard S. Stelmaczonek with an unsworn Information to Obtain (ITO) and draft warrants to search.

J.P. Stelmaczonek swore the ITO of Mr. Breitkreuz who then advised,

pursuant to the Protocol for Warrant Applications of the Provincial Court Criminal Division, Edmonton (the Protocol - see Appendix A), to attend the Provincial Court Judge offices and leave the warrants so that a Provincial Court judge could determine whether the said warrants should be granted. [ 4 ] On March 21, 2010, Mr. Breitkreuz attended with his ITO before Judge Valgardson, who granted four warrants to search based upon the sworn ITO.

A fifth search warrant was granted by Judge Caffaro on March 24, 2010 based on the ITO of Lynda Dombroski. [ 5 ] During an application to quash the search warrants, the Applicants expressed their intention to argue that the Protocol for Warrant Applications undermines s. 487(1) of the Criminal Code . Because this issue was not identified in the Notice of Motion, the application was adjourned to allow the parties to provide written argument to the Court on this issue. Positions of the Parties [ 6 ] The Applicants argue that J.P.

Stelmaczonek engaged the judicial process of s. 487(1) by swearing the ITO and therefore he had a statutory duty to consider whether the search warrants should be granted. In following the Protocol, J.P. Stelmaczonek delegated the matter to a Provincial Court Judge. The Applicant before J.P. Stelmaczonek became “spent” when no judicial decision was made. Any further applications had to be in the form of a new ITO before the search warrants could be lawfully issued.

The Applicants submit that the Protocol in this case unjustifiably overrides the statutory powers provided to a “justice” to consider granting a warrant under s. 487(1). The delegation contemplated by the Protocol fetters the independence of the judiciary. [ 7 ] The Respondent submits that the wording of s. 487(1) does not support a requirement that the judicial officer who witnesses the swearing of the ITO necessarily decide the application.

The Respondent argues that authority for the Provincial Court to establish the Protocol arises from s. 482, and that the Protocol is both legitimate and authorized by statute. Criminal Code [ 8 ] The parties rely on the following Criminal Code provisions: 487(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place (

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or (c.1) any offence-related property, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is

named in the warrant (

d) to search the building, receptacle or place for any such thing and to seize it, and (

e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with

section 489.1. 482(2) The following courts may, subject to the approval of the lieutenant governor in council of the relevant province, make rules of court not inconsistent with this Act or any other Act of Parliament that are applicable to any prosecution, proceeding, including a preliminary inquiry or proceedings within the meaning of

Part XXVII, action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to the prosecution, proceeding, action or appeal: (

k) the Provincial Court of Alberta;

(3) Rules under subsection (1) or (2) may be made (

a) generally to regulate the duties of the officers of the court and any other matter considered expedient to attain the ends of justice and carry into effect the provisions of the law; (

b) to regulate the sittings of the court or any division thereof, or of any judge of the court sitting in chambers, except in so far as they are regulated by law; (

c) to regulate the pleading, practice and procedure in criminal matters, including pre-hearing conferences held under

section 625.1, proceedings with respect to judicial interim release and preliminary inquiries and, in the case of rules under subsection (1), proceedings with respect to mandamus, certiorari, habeas corpus, prohibition and procedendo and proceedings on an appeal under

section 830; and (

d) to carry out the provisions of this Act relating to appeals from conviction, acquittal or sentence and, without restricting the generality of this paragraph, (

i) for furnishing necessary forms and instructions in relation to notices of appeal or applications for leave to appeal to officials or other persons requiring or demanding them, (ii) for ensuring the accuracy of notes taken at a trial and the verification of any copy or transcript, (iii) for keeping writings, exhibits or other things connected with the proceedings on the trial, (iv) for securing the safe custody of property during the period in which the operation of an order with respect to that property is suspended under subsection 689(1), and (

v) for providing that the Attorney General and counsel who acted for the Attorney General at the trial be supplied with certified copies of writings, exhibits and things connected with the proceedings that are required for the purposes of their duties.

(4) Rules of court that are made under the authority of this

section shall be published in the Canada Gazette.

(5) Notwithstanding anything in this section, the Governor in Council may make such provision as he considers proper to secureuniformity in the rules of court in criminal matters, and all uniform rules made under the authority of this subsection prevail and haveeffect as if enacted by this Act. Analysis [9] The Applicants cite R. v. Gordon (1999), (MB CA), 139 C.C.C. (3d) 239, [1999] M.J.

No. 421 (C.A.)for the proposition that a “justice” should consider the application for a search warrant if presented with all the required information inprescribed form: 50 When making an application for a search warrant, police officers should present to the authorizing justice a completed package,with the affidavit executed. The package should be left with the justice to review and to render a decision. The contents of the packageshould not be discussed, no further information should be given to the justice, and there should be no interaction between the affiant andthe authorizing justice.

If the affidavit is properly drawn and all the information is placed before the authorizing justice, there is no needfor any conversation or discussion between the police and the judicial officer. [10] In that case the magistrate read the ITO and expressed some concern with the Crime Stoppers program mentioned in the ITO.The police explained the nature of the program but did not provide any other new information. The magistrate required further time andthe officers left and returned four hours later. One of the officers then swore the ITO and the magistrate authorized the warrant.

TheManitoba Court of Appeal stated: 49 ... the process the police followed in obtaining the warrant in this case can and should be improved so as to eliminate any opportunityto challenge the function of an authorizing Justice as an independent, impartial quasi judicial officer. [11] R. v. Gordon has been the subject of subsequent judicial comment. In Winnipeg (City) Police Service (Re), 2010 MBPC 43,256 Man.R. (2d) 81 the Court stated: 10 The search warrant ruling of Helper J.A. in R. v. Gordon, (MB CA), [1999] M.J.

No. 421 (C.A.) sets out thisprocedure for making an ex parte application: para.50 When making an application for a search warrant, police officers should present to the authorizing justice a completed package,with the affidavit executed. The package should be left with the justice to review and to render a decision. The contents of the packageshould not be discussed, no further information should be given to the justice, and there should be no interaction between the affiant andthe authorizing justice.

If the affidavit is properly drawn and all the information is placed before the authorizing justice, there is no needfor any conversation or discussion between the police and the judicial officer. It follows that a Form 5.01 information must be sworn before a judge other than the judge who will determine the merits of theapplication. [12] In R. v.

Anderson, 2010 ABQB 263 at para. 13, Bast J. noted that while the Court of Appeal in Gordon went on to say thatwhen making an application for a search warrant, police officers should present to the authorizing justice a completed package, with theaffidavit executed, it ultimately concluded that the magistrate had not acted in a non-judicial manner in executing the warrant and foundthat no breach of the Charter had occurred. [13] In R. v. Trinh, 2005 BCPC 486, the Court considered the validity of a search warrant granted under s. 11 of the ControlledDrugs and Substances Act.

One of the grounds raised by the applicant was that the person who took the officer's oath on the ITO and theperson who issued the search warrant were not the same person and thus the search was unlawful. Warren Prov.Ct.J. stated:

19 There is nothing in the wording of s. 11 of the Controlled Drugs and Substances Act which would suggest that the Information toObtain has to be sworn before the Judicial Officer who issues the warrant. The wording is similar to other sections in the Criminal Codedealing with the issuance of warrants whether they be search warrants, general warrants or otherwise. 20 Each of these sections provide that the Justice must be satisfied by Information on Oath and if so satisfied may issue a warrant.This

section and others provide for the exercise of judicial discretion and while requiring that the information be based upon oath, thereis nothing in the wording to suggest it is necessary that the informant appear in person before the justice who issues the warrant. Theinformant of course must appear before the person who swears the Information, the only exception provided for being in the telewarrantsections. 21 In Magar (supra) the question of whether a Justice of the Peace could swear an Information was not before the Court, nor werethere any submissions made in support of the application.

Thus the case has very limited application. 22 The Court in Magar refers to the decisions of Regina v. Southwick (ON CA), [1967] 2 O.R. 428-431 in which theOntario Court of Appeal looked at the question of whether one Justice of the peace could swear or receive an Information, thuscommencing the criminal proceedings, while another justice could issue the summons or warrant.

The Court in Southwick decided thisquestion in the affirmative and at page 2 the Court says mid paragraph: The laying of an information which is really the completion of the complaint under s. 439 is separate and distinct from the inquirycontemplated by s. 440. The former deals with jurisdictional requirements while the latter is concerned with the issuance of a judicialprocess to compel the attendance of the alleged offender.

There is nothing inconsistent in having the two steps conducted by different Justices of the Peace and a consideration of the two sectionsinvolved convinces me that they are open to the construction that the inquiry may be conducted by a Justice other than the Justice whoswore the original information.

To hold otherwise would mean that an information could not be proceeded with if the Justice beforewhom the information was laid under s. 439 died or became incapacitated before the inquiry referred to in s. 440 was held. 23 This distinction between the jurisdictional or ministerial part of the process and the judicial aspect has been referred to in a numberof decisions over the years. 24 I am satisfied that the swearing of the Information is not a judicial function per se.

It is only the issuance of the warrant whichinvolves a judicial determination. 25 The procedure followed here with one Justice taking the oath and another issuing the warrant would ensure compliance withprocess suggested in the well known Manitoba Court of Appeal decision of R. v. Gordon (MB CA), 139 CCC (3d)239 in which it is stated at paragraph 50: When making an application for a search warrant, police officers should present to the authorizing justice a completed package, with theaffidavit executed. The package should be left with the justice to review and to render a decision.

The contents of the package should notbe discussed, no further information should be given to the justice, and there should be no interaction between the affiant and theauthorizing justice. If the affidavit is properly drawn and all the information is placed before the authorizing justice, there is no need forany conversation or discussion between the police and the judicial officer. 26 The justice who takes the oath of the informant should not engage in discussion with the informant as suggested by DefenceCounsel.

I am satisfied that such discussion and/or collaboration may blur the line between the separate functions of the police and thejustice. The Information to Obtain should be sufficient to support a warrant on its face. If it is not, the justice should not be engaging indiscussion with the affiant in order that errors or omissions can be put right. The possibility of this happening is greatly diminished whenthe Justice who decides whether a warrant should issue or not, is a different person than the one who swears the Information.

[14] In R. v. Lupyrypa, 2008 ABQB 427, the accused sought to quash an information and summons. Burrows J. stated: 59 In Ex parte Archambault (1910) (QC CQ), 16 C.C.C. 433 Archambeault J. rejected the proposition that a justicemust examine under oath the complainant before issuing a summons. He said (page 438): I cannot subscribe to that doctrine. It would greatly embarrass the administration of criminal justice and sometimes even block itcompletely. The text of the law should be very precise to induce me to sanction such a principle. The text of

section 655 [the 1910 equivalent of s. 507], in my opinion, presents the contrary view. This

section gives full discretion to ajustice of the peace in saying that he may issue a summons or a warrant if he is of opinion that a case has been made out for so doing.The

section does not say that the justice of the peace shall hear the complainant under oath. It says that he shall hear and consider "theallegations" of the complainant. In the present case the information of the complainant was made under oath. The magistrate considered the charges contained in it. Hewas of opinion that a case was made out for the issue of a warrant of arrest, and he issued such warrant.

All that the law requires wasdone, and I am therefore of opinion that no good reason has been shewn for ordering the discharge from custody of the accused. 60 Ex parte Dolan (1911) (NB KB), 26 C.C.C. 171 (S.C.N.B. on appeal), The King v. Mitchell (1911) (ON SC), 19 C.C.C. 113 (Ont. H.C.J.), and Re Tait (1950), (BC CA), 98 C.C.C. 241 (B.C.C.A.) are to the sameeffect.

They each hold that in determining whether a case has been made out for the issuance of a summons, the justice meets therequirements of the Criminal Code though he considers nothing more than the sworn information containing the allegations of theinformant. It would be inconsistent with these decisions to hold that the Code requires the justice literally to "hear" the informant. [15] It has been noted that R. v.

Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992 suggests that questioning of an affiant by ajudicial officer on an application for a search warrant is not improper and it follows that not all exchanges will be fatal to the validity of awarrant. See for example R. v. Passon, 2009 BCSC 192, R. v. Simard, 2009 QCCS 519, R. v. Pelley, [2002] N.J.

No. 244 (Prov.Ct.). [16] However, while the Respondents rely on Gordon to support their argument that the ITO must be sworn before the issuingjudicial officer, the above case law reveals that it in fact stands for the opposite proposition, and that similar provisions have beeninterpreted as allowing for sworn informations to be presented to the issuing judicial officer. [17] R. v. Duchcherer, 2006 BCCA 171 is also of interest. According to that decision, nothing prevents re-application on the samematerial where a warrant has not issued on a first application, and re-application is de novo, not a review.

Duchcherer was recentlyapproved in R. v. Cheng, 2010 BCCA 135 at para. 19. [18] There is nothing to suggest the ITO in this case was not "information on oath" merely because it was sworn before J.P.Stelmaczonek and not before the issuing judge. [19] One might argue that the wording of the telewarrant provision (s. 487.1(1)) implies that s. 487 requires an application to bemade in person. However, it is conceded that Mr. Breitkreuz did attend.

In any event, s. 487.1(1) is an exception to a deponent presentinginformation on oath, allowing transmittal of ITOs by fax or telephone which understandably raises concerns about the reliability of theITO, and therefore the provision imposes a number of safeguards to alleviate that concern and to ensure that the ITO properly forms partof the record. The same concerns do not arise where a deponent appears in person with the original ITO which was previously swornbefore a judicial officer.

[ 20 ] The foregoing leads to the conclusion that the validity of the issuance of the warrants by Judge Valgardson was not undermined by J.P. Stelmaczonek’s adherence to the Protocol. It also leads to the conclusion that the impugned portion of the Protocol does not conflict with s. 487(1) . Heard on the 2 nd day of February, 2011. Dated at the City of Edmonton, Alberta this 3 rd day of February, 2011. A.M. Lutz J.C.Q.B.A. Appearances: Sid M. Tarrabain, Q.C. Adam Y.

Karbani for the Applicants Donna Spaner for the Respondent Appendix A - Protocol PROVINCIAL COURT OF ALBERTA CRIMINAL DIVISION—EDMONTON PROTOCOL FOR WARRANT APPLICATIONS Application of Protocol: Effective June 22, 2009, this protocol is intended to establish preferred administrative procedures concerning the applications made to Judges of the Provincial Court of Alberta (Criminal Division-Edmonton) for Search Warrants, Production Orders, Tracking Warrants, Dialed Number Warrants and Impression Warrants under the Criminal Code of Canada and the Controlled Drugs and Substances Act .

In this Protocol: “Affiant’s Numbers” means a business card or note containing the telephone number(

s) and e mail address (if any) of the affiant to an ITO, “Consideration Time” shall have the meaning ascribed thereto in paragraph 5 hereunder, “ESN” means Expedited Service Note, “Judge” means a judge of the Provincial Court of Alberta (Criminal Division-Edmonton), “ITO” means Information To Obtain or other affidavit in support of an Application for a Warrant, “Warrant” means a search warrant, production order, tracking warrant, dialed number warrant, and impression warrant under the Criminal Code of Canada or the Controlled Drugs and Substances Act , “Materials” shall have the meaning ascribed thereto in paragraph 2 hereunder, “PC Chambers” means the reception area of the Provincial Court of Alberta (Criminal Division-Edmonton) on the 5 floor of the Law Courts (North) in Edmonton, Alberta, and “Rejection Notice” means a written statement of a Judge setting out the reasons for the rejection of the affiant’s application for a Warrant. 1.

It is preferable (but not mandatory) that the ITO be duly sworn before a Justice of the Peace before the ITO and draft Warrant are brought to PC Chambers. An ITO for a general Warrant pursuant to

section 487.01 of the Criminal Code of Canada and an ITO for a DNA Warrant pursuant to

section 487.05 shall be sworn before a Judge of the Provincial Court of Alberta and may be sworn in PC Chambers when the Materials are brought to PC Chambers. 2. At least one copy of the duly sworn ITO and draft Warrant, and one copy of the Affiant’s Numbers and the ESN, if any, (collectively, the “Materials”) shall be left with the receptionist/clerk of PC Chambers. 3.

If the affiant of the ITO wishes to have the application for a Warrant considered before the expiration of 24 hours from the time the Materials are left with the receptionist/clerk of PC Chambers, the affiant shall complete an ESN setting out the time by which the affiant wishes to have the Materials considered and the reasonable basis why such consideration is to be made by that time. 4.

The clerk/receptionist of PC Chambers shall distribute the Materials to a presiding Judge in accordance with such procedures as are established by the Assistant Chief Judge of the Provincial Court of Alberta (Criminal Division-Edmonton) from time to time. 5. Except where an application for a Warrant involves lengthy or complex Materials, within 24 hours of its receipt in PC Chambers or within such lesser time as reasonably requested in the ESN (the “Consideration Time”), the judge to whom the Materials are referred shall consider the Materials and either (

I) approve the application for the Warrant by signing the Warrant or (ii) reject the application for the Warrant in which case the Judge shall complete a Rejection Notice and attach it to the Materials. The Materials (with a Rejection Notice attached if applicable) shall be returned to the receptionist/clerk of PC Chambers within the Consideration Time.

6. Upon return of the Materials from the Judge, the receptionist/clerk of PC Chambers shall retain the original ITO, a copy of the Warrant and a copy of the Rejection Notice, if any, and contact the affiant (using the Affiant’s Numbers) as soon as reasonably practicable. 7.

If the affiant or any other person re-applies for a Warrant concerning the same person(s), place or things in the application that was rejected, the affiant shall include in the ITO information that discloses: a. that a previous application was made for a Warrant, b. that the previous application was rejected, and c. the reasons for the rejection as stated in the Rejection Notice. 8. The reapplication for the Warrant shall be governed by the same administrative procedures contained in this Protocol as for an original application.

Dated at Edmonton, Alberta this ______ day of June, 2009. ________________________ J.K. Wheatley, ACJ REV: June 10, 2009