R. v. Kelly 2010 NBCA 89 – Accused Acquitted on Drug Charge Based on Tainted Warrant

In Kelly v. R., 2010 NBCA 89 (N.B. C.A.) Kelly’s home was raided , as part of “Operation Jellybean”, an investigation into the illegal drug and steroid trade in the Fredericton, NB area. RCMP officers conducted two searches of interior of home. The  first search was without any prior judicial authorization and in absence of exigent circumstances and second with an improperly obtained warrant. Prior to the execution of the search warrant, officers had attended at the residence, knocked and forced open the door. They then searched the residence, and left without taking anything. An undercover  officer had also attended at the residence and sought to buy cocaine, and was told that there was no cocaine there. Neither of these incidents was disclosed in the Information to Obtain the search warrant. Officers seized about three-and-a-half kilograms of marijuana from the home.

At trial, Kelly brought an unsuccessful application to exclude marijuana seized during second search. Kelly was convicted, and appealled that conviction. In allowing the appeal, the Court held that Kelly’s constitutional rights were violated. The Court stated that the case featured an improperly obtained warrant, and that the contested evidence consisted of a controlled substance that could be described as a “soft drug”.  The Court further stated first that the warrantless search was unreasonable because there were no exigent circumstances and second, that the search could not be legitimized by a warrant because of the egregious breaches of duties by the deponent of Information to Obtain, most notably his duties of candour and full disclosure. Drapeau C.J. made the following comments:

    1. In light of the events captured by the record on appeal, it is necessary to state a truism: police officers are not above the law and Canadians rightly expect and assume they will discharge their professional responsibilities with punctilious respect for the law. After all, the official motto of the RCMP is “maintiens le droit”, not “the end justifies the means”.52. As flagged under the “Context” part of these reasons, the ITO does not inform the issuing judge of the following: (1) the ITO deponent’s view that, at the end of October 2006, the requisite reasonable grounds to obtain a warrant for 120 Cassidy Circle did not exist; (2) what events, if any, transpired between the end of October and the date of the issuance of the warrant to change that state of affairs; (3) the prior forcible police entry and warrantless search of 120 Cassidy Circle, and the intelligence gathered as a result of that search. Even if the officers carried out that search for the stated purpose of ensuring no one was inside the mobile home, they could not avoid seeing what was there to be seen; and (4) the ITO deponent’s unsuccessful attempt at purchasing drugs from Mr. Kelly at that location during the evening previous to the application for the warrant.62. The police officers who first invaded Mr. Kelly’s home did so without a warrant and without exigent circumstances. One of those officers was an RCMP sergeant with significant experience in actual law enforcement; to his credit, he did not even attempt in his testimony to make a case for “exigent circumstances”. The fact is that both he and his fellow officers at the scene knew of no evidence pointing to a present danger of “loss, removal, destruction or disappearance of the evidence sought [. . .] if the search or seizure [was] delayed in order to [await the imminent issuance of the] warrant” (see Grant (1993), at para. 30). Nor did the superior officer who directed the entry into 120 Cassidy Circle share with them or the trial judge, for that matter, what information, if any, undergirded his call to action before the issuance of the warrant, which was expected momentarily. That direction and its unquestioned execution reflect an intolerable indifference for the law and Mr. Kelly’s constitutional rights under s. 8. Additionally, the subsequent search was conducted pursuant to a warrant obtained without the requisite reasonable grounds and on the basis of material non-disclosure and misleading statements in the ITO. This is not a case where good faith police work militates in favour of evidential admission (see, on point, R. v. Kelly (R.W.) (1999), 213 N.B.R. (2d) 1, [1999] N.B.J. No. 98 (C.A.) (QL), para. 61).

 

Accordingly, on appeal the evidence was excluded pursuant to s. 24(2) of the Charter, and the Appellant was acquitted of all charges.

This case will likely be applied in Saskatchewan, in the case where a deponent commits a material or deliberate omission in the application for a search warrant. One more win for Canadians wanting a truthful justice system.