R. v. Whitman (D.) et al. 2012 NSSC 329
Evidence - Witnesses - Attendance and oath - Attendance - Subpoena - Setting aside
Police officers executed a search warrant at Ellis’s property. The police found some 236 pounds of cannabis marijuana. Ellis was charged, with others, with an offence contrary to s. 5(2) of the Controlled Drugs and Substances Act. The Crown sought to quash subpoenas issued by Whitman, a Justice of the Peace, requiring the attendance of four police officers to give evidence at the preliminary inquiry. The Crown applied for an order in the nature of certiorari pursuant to the Criminal Code and Civil Procedure Rule 64.
The Nova Scotia Supreme Court dismissed the application. The court first determined that the preliminary inquiry judge was the proper person to determine the issue, namely, whether the four proposed witnesses were “likely to give material evidence”. In the alternative, the defence had met its burden of establishing that the four officers were likely to give material evidence as to the background of the validity of the search warrant. “[T]he Crown is taking a very narrow view of the purposes of a preliminary inquiry, and the Crown does not recognize the ancillary function, which can, under recent jurisprudence, allow for the exploration of facts which would later support a Charter argument.”