Mar 17, 2014

Summary of R. v. McElroy

R. v. McElroy, 2008 SKPC 120 (CanLII)
The accused are charged with possession of marijuana for the purpose of trafficking. The accused challenged the search by the RCMP saying it was unreasonable and violated the accused's s. 8 Charter rights. Defence counsel challenged the Information to Obtain a Search Warrant (ITO) relating to the information provided by the confidential source claiming the search warrant should not have been issued. A voir dire was held to determine if the alleged breach occurred and if so whether evidence should be excluded pursuant to s. 24(2) of the Charter.HELD: There has been no breach of s. 8 of the Charter with respect to the observations of the informant prior to the search warrant having been prepared and executed, or to the legal basis for the issuance of the search warrant. 1) The ITO is clear. The informant personally observed a black garbage bag containing what he believed to be marijuana. There is no speculation. The informant is not passing on information that he heard from another source. The informant saw the marijuana on the very day that the information was provided to the police officer preparing the ITO. The fact that the 'large amount' is not defined in the ITO is not significant. 2) The defence argues the search warrant should be set aside because of a lack of full disclosure because the police ought to have disclosed in the ITO that her confidential source was a special constable. The only evidence on the powers of a special constable is that it is only when the special constable is in the presence of a regular member that the officer is acting as an auxiliary or special constable. The legislation states that it is only when a person is carrying out the duties of a special constable that he is a peace officer. Since the informant went into the residence for the purpose of performing work as a plumber and since he was not in the presence of a regular member, when he was at the residence he was not a peace officer, he was there as a private citizen. There is no reason why the informant could not be viewed as a confidential source. There is no requirement for the ITO to reveal that the informant was both a plumber and a special constable. As a result the Court does not accept that there was not full and frank disclosure in the ITO. 3) The Court accepts the informant's evidence that the garbage bag was open and the bags of marijuana visible when he was working on the dishwasher.