R v. Martin, 2013 NSPC 50

PROVINCIAL COURT OF NOVA SCOTIA Citation: R v. Martin , 2013 NSPC 50 Date: 20130621 Docket: 2276770-2276795 Registry: Pictou Between: Her Majesty the Queen v. Darren Martin DECISION REGARDING CHARTER MOTION NO.2 AND VERDICT Judge: The Honourable Judge Del W. Atwood Heard: 17-21 June 2013 in Pictou, Nova Scotia Written decision: 26 September 2013 Charges: Section 239(1)(

a) Excise Tax Act x 3 Section 329(1)(

d) Excise Tax Act x 1 Section 327(1)(

a) Income Tax Act x 10 Section 327(1)(

c) Income Tax Act x 10 Section 327(1)(

d) Income Tax Act x 2 Counsel: Constantin Draghici-Vasilescu for the Federal Prosecution Service of Canada Darren Martin on his own behalf Stephen Robertson, Nova Scotia Legal Aid Commission, amicus curiae By the Court :

[1] This is the Court’s decision in relation to what is essentially a

section 8 Charter application to determine the constitutionalityof a

section 487 warrant to search that was issued on the strength of an information to obtain sworn to by Investigator Baker on 22 September 2008.[1] [2] The warrant in question was sought and obtained under the provisions of

section 487 of the Criminal Code of Canada. Thatprovision of the Criminal Code states that a justice who is satisfied by information on oath in Form 1 that there are reasonable groundsto 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 beencommitted, (

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will revealthe 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 theperson 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 orenforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who isnamed 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 of the Criminal Code. [3] It is trite law to observe that an information to obtain a search warrant must necessarily contain a sufficient description of alegal offence. It must describe sufficiently the place or places to be searched. The information to obtain must describe sufficiently theproperty that is being sought. The information to obtain must lay out the reasonable and probable grounds that an offence has beencommitted within the definition of para. 487(1)(

a) of the Criminal Code. The information to obtain must lay out the reasonable andprobable grounds that the property exists, the reasonable and probable grounds that the property will afford evidence, the reasonable andprobable grounds that the evidence will be found in the place to be searched and the reasonable and probable grounds that the placedescribed is, indeed, the place that is sought to be searched. [4] In conducting the review that the Court is required to do in this proceeding, I apply the principles laid out of the SupremeCourt of Canada in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421.

I’ve also found particularly useful the decision of theBritish Columbia Court of Appeal in Mitton v. British Columbia (Securities Commission) 1999 BCCA 186. [5] It is clear that, in reviewing the information to obtain and the warrant that was issued thereunder, it is important that I notsubstitute my view for that of the authorizing judge.

If, based on the record which was before the authorizing judge–redacting andremoving the evidence that the Court found yesterday was obtained unconstitutionally prior to the issuance of the warrant– I shouldconclude that the authorizing judge could have granted the warrant lawfully, then I should not interfere. [6] The prosecution has redacted from the information to obtain the evidence that was collected by the Canada Revenue Agencyunder the authority of sections 231.1 and 231.2 of the Income Tax Act; I recognize, as well, that para. 8(

l) of the information to

obtain–obviously I’m able to review only the unredacted portion–included information to suggest that Mr. Martin had, indeed, over-reported income in the year 2005. I recognise also that the analytical component of the information to obtain–contained in paragraphs16(

a) and (

b) of the information– would not have been able to have been calculated without reference to material produced by Mr.Martin or produced under the authority of consents to release of information following the meeting with Ms. Higgins November 7, 2007. [7] I am conscious of the fact that, during Mr. Martin’s meeting with Ms. Higgins on 7 November 7 2007, Mr. Martin made anadmission. It is important for me to note parenthetically that judicial use of an admission is different to investigative use of anadmission.

In this particular case, the Court is concerned particularly with the judicial use of that admission, given the fact that the Courtis being called upon to adjudicate upon the constitutionality of a warrant; conscious of what was stated by the Supreme Court of Canadain R. v.

White, (SCC), [1999] 2 S.C.R. 417 at paragraph 62 regarding the reliability or lack of reliability of utterancesmade under statutory compulsion, absent use immunity, I find that there remains on the record insufficient evidence for the Court toconclude that the authorizing justice would have had before him on 22 September 2008, sufficient evidence to authorize the issuance ofthe search warrant; therefore, engaging in the limited review function as set out in R. v.

Garofoli, I find that the only evidence that wouldhave been before the issuing justice would have been evidence of reported low income that would have given rise for concern in relationto excessive, possible excessive business expenses, essentially the same sorts of concerns that were identified by Ms. MacDonald in herreferral to the audit

section of Mr. Martin’s file. This is insufficient evidence, in the Court’s view, to substantiate the issuance of thesearch warrant. The Court therefore concludes that the issuance of the warrant, based on the revised record and based on the limitedreview that I have conducted here this morning, the warrant was issued in contravention of

section 8 of the Canadian Charter of Rightsand Freedoms. Given the very fair concession that was made by the prosecution yesterday in relation to the section 24(2) issue, theCourt will order and direct that any and all evidence seized as a result of that information to obtain be excluded from evidence, and Ibelieve that concludes the voir dire portion of the trial. And Mr. Vasilescu? [8] Mr. Vasilescu: Your Honour, I just, with the Court’s permission, I wish to draw the Court’s attention to the commentmade with respect to paragraph 16 of the Information to obtain. [9] The Court: Yes. [10] Mr.

Vasilescu: The Court has, in error, concluded that that calculation had to rely on the information obtained by theauditor. [11] The Court: Well, that’s the conclusion that I’m reaching Mr. Vasilescu and that’s the decision of the Court. [12] Mr. Vasilescu: I respectfully submit that the context is very clear that that calculation was based on printouts of the screensin the possession of CRA. It had absolutely nothing to do with information collected by the auditor. [13] The Court: Well, and this is why I say that the only conclusion that can be reached from those screens is that Mr.

Martin hadreported very low income for those reporting years. I don’t find that I can draw any conclusion in regard to criminal conduct based onwhat was contained in the screens collected, in the screens that were captured by Ms. MacDonald. [14] Mr. Vasilescu: Your Honour, with due respect, and I apologize for insisting on this point, but the Court has for some reasonfocused on a small over-reporting in 2005, based on the calculation... [15] The Court: No, I’ve not focused on that, Mr. Vasilescu. The Court has made its decision. The Court has made its decisionsand that’s... I invited argument.

The Court has made its decision. If you feel that I’ve made a decision in error, you have avenues of dueprocess. [16] Mr. Vasilescu: I respect that, Your Honour. Your Honour, I can indicate at this point that absent the evidence that resultedfrom the search, the Crown is unable to make the allegations before the Court.

[ 17 ] The Court: Thank you very much. Accordingly, Mr. Martin, what Mr. Vasilescu is inviting the Court to do is to dismiss the charge, or the array of charges against you. [ 18 ] What I will say, and I do believe it is appropriate that the Court focus on what this case was about, this case was not about hidden agendas. This case was not about conspiracies or anything of the like. This case involved members of the Canada Revenue Agency doing their jobs diligently and well. Those members of the Canada Revenue Agency came to Court due to the efforts of Mr.

Vasilescu, and they testified, in my view, truthfully, and it is because of the fact that they testified truthfully and were effectively questioned by Mr.

Robertson, because of those factors, and because of the fact that the law of this country values substantially your liberty interests and your privacy interests, the Court is able to say: your business with the Court is concluded and you ’ re free to go and the charges are dismissed out of this Court. ______________________________________ J.P.C. [1] Explanatory note: Following the court ’ s rendering of its oral decision on a defence Charter motion on 20 June 2013 – now published in edited form as 2013 NSPC 49 – the prosecution informed the me that it still wished to argue the validity of the challenged search warrant.

The prosecution was of the view that, even with redacting from the information to obtain that evidence which the court found had been obtained unconstitutionally from Mr. Martin, there remained sufficient content in the ITO to justify the issuance of the warrant. I did not order or allow a cross-examination on the ITO. Rather, I allowed the prosecution to present to the court a copy of the ITO which I was satsified removed all reference to material ruled inadmissible in 2013 NSPC 49. I then heard argument on the sufficiency of the ITO. I rendered an oral decision shortly thereafter.

This written decision has been edited to modify style, syntax, punctuation and case citations, but does not alter the oral decision in any way.