Court of Appeal Decision of the Week

Search Warrants – CDSA or General?

Case: R. v. Jodoin, 2018 ONCA 638 (CanLII)

Keywords: General Warrant; Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C., 1985, c. C-46; R. v. TELUS Communications Co., 2013 SCC 16 (CanLII)

Synopsis:

Several sources provide Police with information that the Appellant is dealing cocaine. Surveillance of commercial premises called “Caboto Satellite” corroborates the information. No merchandise in the store, telephone number not in service. The Appellant attends sporadically for short periods of time.

Police apply for a “sneak and peek” warrant pursuant to s. 487.01 of the Criminal Code, R.S.C., 1985, c. C-46. Police find what they believe to be crystal methamphetamine, cocaine and marihuana in a wooden box and in a safe (the safe is inside the wooden box). The investigating officers want not only to seize the drugs, but also to link the Appellant. Reasoning that a Controlled Drugs and Substances Act (CDSA) warrant would not provide sufficient “time and flexibility” – on the “impression” that CDSA warrants provide “shorter windows for execution” – the Police obtain a general warrant pursuant to s. 487.01(1)(c) of the Criminal Code (which permits them to defer executing the warrant until the “appellant’s attendance at the commercial unit was fulfilled”, which attendance was otherwise “sporadic and unpredictable”).

The warrant is signed, the officers set up surveillance and the Appellant (who conveniently arrived that same afternoon) is arrested a short distance from the commercial premises. Significant amounts of crystal methamphetamine, cocaine, marihuana and other drug related materials are seized. The Trial Judge concludes the general warrant was properly issued. The Court of Appeal agrees.

Importance:

Citing R. v. TELUS Communications Co., 2013 SCC 16 (CanLII), the Court of Appeal agreed that general warrants are to be used “sparingly as a warrant of limited resort”. (See para. 11). Where the Police have a choice between a series of conventional warrants or an application for a general warrant, use of the general warrant requires the Police to meet stricter requirements. The warrant can only be issued by a judge, not a justice of the peace, and the Police must establish that it is in the best interests of the administration of justice. The Court of Appeal noted that, unlike in TELUS, here there was no question of Police evading stricter statutory requirements in seeking the general warrant:

It would have been much easier for police to ask for a search warrant from a locally situated justice of the peace, rather than travel to Leamington, Ontario as they did in this case, to ask a judge for a general warrant and attempt to establish the more stringent requirements. (See para. 17).

At two separate points, paras. 12 and 19 of the decision, the Court of Appeal stated that a warrant to be executed in the future upon the occurrence of a “specified contingency” is not contemplated by the conventional search warrant. As such, the general warrant was a more appropriate fit (for the Court, notwithstanding the fact Police were mistaken with respect to the supposed limits of conventional search warrants):

The general warrant was properly issued in this case, where the investigative technique proposed was not simply to seize the drugs but to link them to the accused and where there is no issue of evasion of a more stringent statutory regime. (See para. 19).

Counsel for the Appellant: Colin Wood (Kim Schofield & Associates, Toronto)

Counsel for the Respondent: Tanit Gilliam and Ruth McGuirl (Public Prosecution Service of Canada, Toronto)

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Posted: Wednesday, July 18, 2018