R v Duncan, 2013 CM 2002

COURT MARTIAL Citation: R v Duncan , 2013 CM 2002 Date: 20130123 Docket: 201257 General Court Martial Canadian Forces Base Esquimalt Victoria, British Columbia, Canada Between: Her Majesty the Queen - and - Captain M.R. Duncan, Accused Before: Commander P.J. Lamont, M.J. REASONS ON AN APPLICATION MADE BY THE ACCUSED PURSUANT TO SECTIONS 24 AND 8 OF THE CHARTER (Orally) [ 1 ] During her trial by General Court Martial on two charges, a charge of disobeying a lawful command and a charge of stealing while entrusted, the accused applied through counsel by written Notice of Application, Exhibit M1-1, to exclude under

section 24 of the Canadian Charter of Rights and Freedoms evidence obtained by a production order under the Criminal Code on the grounds that the order violated the right guaranteed by

section 8 to be secure from unreasonable search and seizure. [ 2 ] In the absence of the panel of this General Court Martial, I heard the evidence of a bank official and the military policeman, Corporal Crawford, who made an application on nine pages and swore to the truth of the statements made therein before a justice of the peace on 12 December 2012. The same day the Honourable Judge Quantz of the Provincial Court of British Columbia made the order, Exhibit M1-2. [ 3 ] Several grounds of attack are set out in the Notice of Application, dealing both with the application made by Corporal Crawford

and the order granted by Judge Quantz, but in the course of argument counsel narrowed his attack to one basis only. It was said that the order was improperly sought and obtained under

section 487.012 of the Criminal Code when it should properly have been made under

section 487.013 . At the conclusion of the argument, I dismissed the application and undertook to give reasons. [ 4 ] Although both

section 487.012 and 487.013 authorize the making of production orders, the orders granted under the two provisions have quite different purposes. An order under

section 487.012 may require any person to produce documents, including documents prepared on the basis of data. The justice granting the order must be satisfied on the basis of the sworn material provided in support of the application that there are reasonable grounds to believe that an offence has been committed or is suspected to have been committed and that the documents or data will afford evidence respecting the commission of the offence. The

section provides in subsection 487.012(7) for the admissibility into evidence of copies of documents produced pursuant to the order and under subsection 487.012(6) the peace officer must account to the issuing court in respect of the documents or data produced once the order is executed, and comply with the regime for the detention of things seized under the authority of a warrant. [ 5 ] A production order under

section 487.013 on the other hand can only be made against a financial institution or against a member of a limited class of persons or entities thought to be involved in money laundering or terrorist financing. The order can only require the entity against whom it is made to "produce in writing" specific information identifying the account number of a named person or a name associated to a specified account number, the type of account, and the dates of opening or closing the account. The standard upon which an order can be made is the lower standard of reasonable suspicion that the information sought will assist in the investigation of an offence. The

section does not provide for the admissibility into evidence of the results of a production order under

section 487.013, and the investigators need not comply with the requirements of the Criminal Code to make a return to the issuing court once the order is executed. [ 6 ] I conclude, therefore, that a financial institution as defined may be the subject of a production order under either or both of sections 487.012 or 487.013. There was nothing to prevent Corporal Crawford from proceeding in the way he did to obtain a production order for documents relating to a named account holder in respect of an identified account at the Bank of Nova Scotia, Victoria branch.

There being no illegality, the search was reasonable and the Charter right was not infringed. [ 7 ] The application was dismissed. Counsel: Lieutenant-Commander S. Torani, Canadian Military Prosecution Services Counsel for Her Majesty the Queen Lieutenant(

N) N. Han, Judge Advocate General/Director of Law Military Personnel Assistant counsel for Her Majesty the Queen Lieutenant(

N) K.M. Aubrey-Horvath, Judge Advocate General/Director of Law Operations Assistant counsel for Her Majesty the Queen Major D. Berntsen, Directorate of Defence Counsel Services Counsel for Captain M.R. Duncan