Fraudulent mass mailing search warrant, bulk COVID adjournments and unsightly garbage bin acquittal
This week on Legally Speaking with Michael Mulligan:
The USA and Canada have a treaty that provides for mutual legal assistance in the investigation of criminal matters.
Pursuant to this treaty, the Minister of Justice of Canada, at the request of the USA, applied for and obtained a search warrant for two Vancouver companies being investigated for sending fraudulent mass-mailed solicitations that were believed to be financially exploiting vulnerable people.
Applications for search warrants occur without the defendant being present or having an opportunity to respond. Accordingly, after a search warrant is executed, the party being searched can request a review to determine if the warrant should have been issued. This kind of review is referred to as a Garafoli Review. Garafoli is the name of a case setting out how these reviews should take place.
A judge conducting a Garafoli Review is not substituting their view for that of the judge who authorized the search. Instead, taking into account further evidence, the existence of fraud, non-disclosure, or misleading information in the search warrant application, the reviewing judge needs to determine if a judge could properly have authorized the search in the first place.
In the case discussed, the reviewing judge concluded that the search warrant was properly authorized.
Also on the show, a BC Provincial Court judge has concluded that the court did not lose jurisdiction over thousands of accused people when their cases were mass adjourned at the start of the COVID-19 pandemic.
The BC Provincial Court is a statutory court: it derives all of its authority from legislation that authorizes the court to do various things. This is distinct from the BC Supreme Court, which is a court of inherent jurisdiction. It has authority that is not derived from legislation.
In the ordinary course of a criminal case, there needs to be some authority to compel an accused person to attend court. Absent this, the accused person could simply not show up.
The initial obligation to attend court could take a number of forms including a summons, undertaking, or warrant. Once an accused person attends court, a judge could adjourn their case to a different date.
The mass adjournments due to COVID-19 involved the Chief Judge of the Provincial Court issuing a Notice to the Profession (NP 19), directing that all out of custody criminal cases, for a prescribed time period, had been adjourned.
Once the court had plexiglass installed, and various protocols put in place to deal with matters remotely where possible, cases recommenced.
The judge reviewing what occurred concluded that jurisdiction was not lost when the cases were adjourned. He concluded that the Criminal Code provisions that permit the court to make procedural rules permitted the adjournments. In addition, he concluded that there was jurisdiction to adjourn the cases in this way because it was a part of the court's authority to control its own process.
Finally, on the show, an apartment building in Prince Rupert was acquitted of a bylaw offence for having an overflowing and unsightly garbage bin.
The bylaw in question specified that “No owner or occupier of real property shall allow that property to become or remain unsightly.”
Because the unsightly garbage bin was in a back alley, there was no evidence that it was on the property owned or occupied by the apartment building.
Follow this link for a transcript of the show and links to the cases discussed.