R. v. Henry, 2013 ONSC 3304

CITATION : R. v. Henry, 2013 ONSC 3304 COURT FILE NO.: 17/10 DATE: 2013-06-05 SUPERIOR COURT OF JUSTICE - ONTARIO RE: R. v. Dean Henry and Laurie Anne Hall BEFORE: The Honourable Mr. Justice John S. Poupore COUNSEL: Pierre R. Bradley, for the Crown Andrew Perrin, for the Applicant HEARD: May 10 & June 4, 2013 ruling on motion pursuant to sections 8 and 24(2) of the Charter [ 1 ] On January 30, 2009, Constable Bortot prepared an information to obtain a telewarrant for the residence of the accused, Dean Henry, in the City of Greater Sudbury. The warrant was obtained and acted upon that same day, following which Mr.

Henry and the co-accused Laurie Ann Hall were charged with a number of drug-related offences. [ 2 ] On November 12, 2010, the accused brought a motion challenging the validity of the search warrant pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms . Gauthier R.S.J., the trial judge, released a decision in which she denied the accused’s motion on January 20, 2011. [ 3 ] The trial commenced on October 1, 2012 with a jury.

On the morning of the second day of trial, the Crown disclosed to the defence that a production order had been sought by the investigating police force to obtain further information from a cell phone that was seized when the search warrant was executed. [ 4 ] The production order sought the name and address of the subscriber of the phone, as well as a record of all phone calls made to and from the phone on January 30, 2009. [ 5 ] As a result of the order, police learned that the subscriber was the co-accused Hall’s 12-year old daughter.

The phone records were not received by the police, and they were not intending to pursue the matter further. The Crown indicated that they were prepared to proceed with the trial without any reference to the telephone in question. [ 6 ] Defence counsel insisted upon receiving all the information sought by police in the production order, submitting that it might assist the accused with an alternative suspect defence. [ 7 ] The Crown advised the court that the information would take 30 days to acquire and produce. The court declared a mistrial. [ 8 ] A new trial date was fixed for June 10, 2013.

The defence brought this application to reopen the aforementioned Charter motion, which had been previously ruled upon by R.S.J. Gauthier. [ 9 ]

Section 653.1(1) of the Criminal Code of Canada states: In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented. [ 10 ] The onus is on the party who brings the motion - in this case the defence, to satisfy the court on a balance of probabilities that it would not be in the interests of justice to permit R.S.J.

Gauthier’s ruling to stand. [ 11 ] In support of the motion, the defence submits that the information received as a result of the production order on the cell phone may have assisted the defence in challenging the information to obtain the search warrant. [ 12 ] The defence, however, have failed to demonstrate how the information contained on the cell phone, the existence of which was not known to the police at the time of swearing the information to obtain, would have been relevant to the Charter motion. [ 13 ] Vague statements about how the defence might have questioned the officer who swore the information to obtain differently are not sufficient to convince the Court that it would be contrary to the interests of justice, as per s. 653.1(1) of the Criminal Code , for Gauthier R.S.J.’s ruling to stand. [ 14 ] This defence motion is therefore dismissed.

Mr. Justice John S. Poupore Date: June 5, 2013