The Anatomy of a Search Warrant Information

The Anatomy of a Search Warrant Information Continuing Legal Education Society of Nova Scotia Robert W. Fetterly@> Senior Crown Attorney Public Prosec...
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The Anatomy of a Search Warrant Information Continuing Legal Education Society of Nova Scotia

Robert W. Fetterly@> Senior Crown Attorney Public Prosecution Service Dartmouth, Nova Scotia November 19,1999

Introduction Search warrants are required where the State wishes to search a building, receptacle, or place in areas that a person has a reasonable expectation of privacy, and no other exception to this requirement exist. Some exceptions include at common-law the plain view doctrine, search incident to arrest, and hot pursuit. A further exception exists in exigent circumstances under some statutes (Criminal Code section 487.11, 117.04(2); Controlled Drugs and Substances Act section 11 (7)).

A reasonable expectation of privacy is decided on the basis of the "totality of the circumstances which may include, but are not restricted to ... : i) ii) iii) iv) v) vi) vii)

presence at the time of the search; possession or control of the property or place searched; ownership of the property or place; historical use of the property or item; ability to regulate access; existence of a subjective expectation of privacy; objective reasonableness of the expectation.'"

On the other hand, the intrusive nature of body searches demand higher levels of justification 2 such as a specialized search warrant. An exception to this general rule exists for searches incident to arrest (which can include surrounding areas)3 which are normally justified on the basis of officer safety. All search warrants require an application before a warrant can be issued. The application is called an "Information" . It is also known as an "Information to obtain" or a "search warrant Information". Search and Seizure Law is likely to be the next battle ground in criminal practice. For many years, the quality of search warrant informations and search warrants has been deplorable. On the other hand, exclusion of evidence after the striking down of searches has rarely operated in such a fashion that the prosecution is unable to continue (for example see Stillman 4 , and Collins vR. 5 ). Courts have for many years acknowledged deficiencies in search warrants and their supporting informations but have often allowed some or all of the evidence to be admitted at trial, after finding that the seizures are real

'R. v. Edwards (1996) 104 C.C.C. (3d) 136 (S.C.C.) at p.p., 150-151

2R. v. Stillman (113) C.C.C. (3d) 321 (S.C.C.) At p. 342 see Belnavis and Lawrence v. R (1997) 118 C.C.C. (3d) 405 (S.C.C.)

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'Supra footnote 2 5(1987) 33 CCC (3d) 1 (SCC) 1

evidence, evidence which would have been discoverable, or that the officer taking action was acting in good faith. In the past few years there have been a series of cases in the Supreme Court of Canada which have signaled the intention of the judiciary to treat defective searches in a different manne~. Ontario Justice Casey Hill, formerly a Senior Crown Attorney in Ontario has written and taught extensively on the subject of search and seizure. In an articled entitled "Warranted Searches: A Practical Perspective'" regarding the poor quality of the search warrant documents, he attributed the cause of this problem to "an institutional recklessness on the part of police forces and regulatory agencies with respect to the existing state of the law of search and seizure. With little time and money spent on training, a general ignoring of the common law with respect to search and seizure training and preference for teaching as to statute, a built in mentality that only the police can teach the police as opposed to the use of civilian experts, and police management by officers in the law of search and seizure prior to 1982 when the Charler was enacted, have all contributed to the low standards of adherence to the legal requirements for drafting and valid search documents."

It has been my experience that nine out of ten search warrant informations I have reviewed are defective. Justice Hill noted that the Law Reform Commission in the early 1980's recognized approximately half search informations were illegal. The time has arrived for the law enforcement agencies and prosecution personnel to take notice that more attention must be paid to the area of search and seizure. Failing this, the judiciary will exclude more evidence. Increasingly, this will impact on more and more serious cases. In Nova Scotia, search warrants may be issued under the authority of federal or provincial legislation. Examples of federal legislation which include search warrant provisions are the Criminal Code, Controlled Drugs and Substances Act, and the Income Tax Act. There are many other federal Acts which contain search warrant provisions. If a federal statute creates offences but does not have a search warrant procedure. Section 34(2) of the Interpretation Act specifies that the Criminal Code search warrant may be issued using sections 487 through 490 of the Criminal Code for form and procedure. Even when a federal Act has its own search warrant procedures, section 487 warrants under the Criminal Code can be issuedB• This permits the Informant to choose which type

6 see R. v. Silveira (1995) 97 C.C.C. (3d) 450 (S.C.C.); R. v. Evans (1996) 104 C.C.C. (3d) 23(S.C.C.); and R. v. Feeney (1997) 115 C.C.C. (3d) 129 (S.C.C.)

'(1995), 4 S. & S.L.R. 8

Multiform Manufacturing v. R. (1990) 58 C.C.C. (3d) 257 (S.C.C.)

2

of warrant would be most beneficial to the investigation. For example, under a Controlled Drugs and Substances Act warrant, a police officer has the benefit of special powers authorized under subsections 11 (1 ),(5) and section 12 of the Controlled Drug and Substances Act which permit unannounced entry, day or night entry, search of "found-ins", the use of force, and the power to enlist such assistance the officer deems necessary. If, on the other hand, a Criminal Code section 487 warrant were used to authorize the same drug search, the Criminal Code does not allow any such special search powers9 • The information would have to justify execution by night (section 488), a term would have to be inserted in the warrant authorizing it, and the warrant would be executed with an announced entry. Search of "found ins" would be restricted to cases of "officer safety" or cases where the search was "incident to arrest". The enlistment of assistance from non peace officers in most Criminal Code warrants normally requires a specific order under section 487.02 be included in the warrant except where the authorizing section in the Criminal Code authorizes assistance explicitly (as in the case of Bodily Substance/DNA warrant -section 487.05; impaired driVing blood warrant - section 256). A Criminal Code warrant could, however, be broader in that it can be used to search for evidence related to all federal statute breaches. Accordingly, ifthe investigation transcends both the criminal domain (such as conspiracy) and another federal offence (such as trafficking), a single warrant under the Criminal Code can authorize searches under both statutes. The reverse is not necessarily true. A warrant obtained under the Controlled Drug and Substances Act can only authorize search or controlled substances or precursors, things which conceal controlled substances or precursors, offence related property, or anything which will afford evidence in respect to an offence under the Controlled Drugs and Substances Act. This should not be taken to mean that peace officers executing a federal warrant cannot seize evidence relating to other federal offences they come upon in the execution of a warrant. Section 489 permits persons executing any federal warrant to seize such evidence as an overseizure without the need to obtain another warrant. It is noteworthy that this overseizure provision has recently by amendment been restricted to evidence of federal offences (Bill C-18 1997). In Nova Scotia, provincial search warrants can be obtained using the procedures set out in the Summary Proceedings Act. As in the federal domain, there are some Acts which set out their own search warrant forms and procedures. A provincial warrant may not be used to search for evidence of a federal offence. However, a Summary Proceedings Act warrant can be used for all provincial offences. An overseizure provision also exists in this legislation (Section 20). Occasionally there may be overlapping investigations under federal and provincial

9R. v. Grant (1993) 84 C.C.C. (3d) 257 (S.C.C.) 3

legislation. In such cases, prudent practice would be to obtain search warrants under both federal and provincial legislation. If only one warrant is to be obtained, it should refer only to the related federal or provincial offence but not both. Most search warrants are issued in Nova Scotia by Justices of Peace, which by definition include Provincial Court Judges. There are some specialized search warrants such as general investigative warrants (section 487.01 Criminal Code) and bodily substance warrants (ONA)(section 487.5 Criminal Code) and proceeds of crime warrants (section 463.32 Criminal Code) which may not be issued by Justice of the Peace, but only by Provincial Court Judges or Supreme Court Judges in the case of general investigative warrants: or Provincial Court Judges or Youth Court Judges in the case of bodily substance warrants: or Supreme Court Judges in the case of proceeds of crime warrants. It is the duty of the issuing Justice or Judge to safeguard the rights of our citizens as it is for the peace officer. The granting of a right to search pursuant to an Act of Parliament or the Legislature is an extraordinary licence. If the Act is not strictly complied with, then the warrant must not be issued. If it is issued, the warrant may be quashed. Since a warrantless search is prima facie unreasonable, and the burden of proving the search was nonetheless reasonable on a balance of probabilities, shifts to the Crown. A search is reasonable if it is authorized by law, the law is reasonable and the manner in which the search is carried out is reasonable. If the search required a warrant, and the warrant is struck down at trial, the evidence seized thereunder may be excluded by a trial court if the Court concludes its admission into evidence would (read as could) bring the administration of justice into disrepute 'o . Accordingly, great care must be taken by the person seeking the search warrant who swears or affirms the search warrant information, and by the Judge or Justice who was asked to issue the warrant. The reputation of both in court is important. When a trial court reviews the search warrant and information, the general test that will be used is: on the basis of the written search warrant information that was before the issuing Justice, could the Justice, acting judicially, have been satisfied that there existed reasonable grounds (on the balance of probability) for the informant to believe the items sought were at the time in the location to be searched, and that these items would afford evidence of an offence under the applicable federal or provincial legislation 1'. All search warrants require an application before a warrant can be issued. This application is called an "information". It is also known as an "information to obtain" or a "search warrant information". As we will see, it is usually required to be in writing although some limited specific warrant procedures allow oral informations. A further exception to this procedure

IOCollins v. R. (1987) 33 C.C.C. (3d) 1 (S.C.C.) At p. 14 1\

R. v. Turcotte (1987) 39 C.C.C. (3rd), 193, (Sask.C.A.) 4

is in the new telewarrant procedures which use telephone and facsimile technology to produce to record. At present, although section 487.1 of the Criminal Code is enforced throughout Canada, in Nova Scotia the Chief Provincial Court Judge has not designated any Justice to issue warrants using this method. So it cannot be used. There is, however, no such thing as an oral search warrant. In most cases the Information to obtain will also be in writing. II

Form and Content of the Search Warrant Information

The search warrant information must: (i)

be in the appropriate form - if a form is specified in the legislation. For federal offences which do not provide warrant procedures/forms, Criminal Code Form 1 shall be used by virtue of section 34(2) of the Interpretation Act as modified to fit each Act. For provincial statute offences for which a form is not provided, informants may use the Form 5 Summary Proceedings Act Information;

(ii)

be in writing - there are exceptions to this general rule. If the enactment does not indicate the information or application is to be in writing or on a particular form, the justice may take the information orally12. This would apply to warrants issued pursuant to the Controlled Drugs and Substances Act, Food and Drugs Act Part 1 & 2, and for Criminal Code warrants under section 117.04(Firearms) and section 199 (Gaming, Betting and Bawdy House) which do not specify a particular form or specifically require the information or applications to be in writing. It is, in my opinion, a much better practice for officers to make warrant informations in writing. A record of the application is important. If an oral information is utilized, an effort must be made to produce a record (tape recorded or written) in which it is clearly indicated that the information is under oath. Even in such circumstances the warrant itself must always be in writing.

(iii)

be under oath 13 which includes solemn affirmation. An exception to this requirement may exist in the case of an application for a firearms warrant given the wording of section 117.04. Prudent practice would suggest it should, given the ruling in Hunter14 be on oath, even if the information is given orally.

12see Re Sieger and Avery and the Queen (1982) 65 C.C.C. (2d) 449 (B.C.S.C.) 13Hunter v Southam Inc. (1984) 14 C.C.C. (3d) 97(S.C.C.)at p. 115

14Supra, footnote 13 5

(iv)

be made by an appropriate person- in most cases this will be a peace officer although it need not be unless the legislation specifies this (Le., a section 117.04 Criminal Code Firearm warrant requires a peace officer to apply; a section 11 (1) Controlled Drugs and Substances Act warrant does not specify who may apply but restricts issuance of the warrant to a peace officer); a section 487 Criminal Code warrant does not specify who may apply, but pursuant to a recent amendment (S.C. 1999 c.S s.16, in force May 1,1999) it can only be issued to a peace officer who may be named or a public officer (federal or provincial) who must be named. Previously this warrant could be issued to named persons which could have included private investigators, or defence counsel. A similar restriction was made in the case of tracking warrants (section 492.1) and number recorder warrants (section 492.2).

(v)

provide reasonable grounds to believe that there is:

Section 487(1) (a) C.C. or Summary Proceedings Act Warrant

now in a building, receptacle or place anything on or in respect of which an offence has been or is suspected to have been committed (applies to all federal laws under section 34(2) Interpretation Act and section 487{1 )(a) Criminal Code) (applies to provincial laws under section 2B{1 )(a) of the Summary Proceedings Act);

(b)

now in a building, receptacle or place anything that will afford evidence with respect to the commission of an offence (applies to all federal laws under section 34(2) Interpretation Act and section 487{1 )(b) Criminal Code) (applies to provincial laws under 2B{1 )(b) of the Summary Proceedings Act);

487(1) (c) Section C.C. Warrant (person)

anything in a building, receptacle or place ... that will reveal the whereabouts of a person who is believed to have committed a federal offence (section 487{1 )(b) Criminal Code);

487(1) (d)

now in a building, receptacle or place anything that is intended to be used for the purpose of committing any Criminal Code "offence against the person for which a person may be arrested without warrant" (section 487(1){c) Criminal Code);

Section 487(1) (e) C.C. (offence related property)

now in a building, receptacle or place any ·offence related property" {as defined in section 2 of the Criminal Code to mean an offence under section 467.1 or an indictable offence under this or any Act of Parliament committed for the benefit of, at the direction of or in association with a criminal organization for which the maximum punishment is for five years or more, or a conspiracy or attempt to commit such an offence. It is noteworthy that this is defined differently than the Controlled Drugs and Substances Act definition of offence related property essentially by replacing the words "criminal organization offence" with the words "deSignated substance offence";

Section C.C.

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CDSA Warrant

(f)

now in a place, a controlled substance or precursor in respect of which this act has been contravened, anything in which a controlled substance or precursor is contained or concealed, offence related property, or anything which will afford evidence in respect of an offence under this Act (section 11 Controlled Drugs and Substances Act);

CDSA Inspector

(g)

to enter a dwelling-place where there are reasonable grounds to believe the dwelling-place is used for the purpose of conducting the business or professional practice of any person licensed or otherwise authorized under the regulations to deal in a controlled substance or precursor, and entry is necessary to ensure compliance with the regulations and entry to the dwelling-place has been denied or there are reasonable grounds to believe entry will be refused;

FDA Part 1 & 2 (h) Inspector Warrant

to enter a dwelling house where there are reasonable grounds for an inspector to believe any article to which this Act or Regulations apply is prepared, preserved, packaged or stored, and that entry to the dwelling-house is necessary for the purpose relating to the administration or enforcement of the Act and that entry to the dwelling-house has respect of which an offence has been refused or there are reasonable grounds to believe entry will be refused (section 23 (1.2));

Impaired Driving (i) Blood Warrant Section 256 C.C.

in a person, blood which will afford evidence of an offence (within the preceding 4 hours) of impaired driving, driving with more than 80 milligrams of alcohol in 100 milliliters of blood in which either the driver or another person has received injuries constituting bodily harm or another person has been killed; and, if a qualified medical practitioner (doctor) is of the opinion that by reason of physical or medical condition the person cannot consent to the taking of the blood sample due to the consumption of alcohol, the accident or related to or resulting from the accident; and the taking of blood samples in the doctor's opinion would not endanger the life or health of that person (section 256 Criminal Code);

Gaming/Betting (j) Bawdy House Warrants Section

at any place within the jurisdiction of the justice (i.e., Nova Scotia only) where there is now being committed an offence under sections 202,203,206,207 or 210 of the Criminal Code (Gamingl Betting Houses, Bookmaking, Lotteries, Games of Chance, Keeping Common Bawdy Houses) (s. 199(1) Criminal Code);

199 C. C.

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Firearm

Warrant (k)

117.04 C.C.

a person who it is not desirable in the interest or safety of that person, or any other person, that a person possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, to search for any such thing and any authorization, licence or registration certificate relating to any such thing that is held by or in the possession of the person (section 117.04 Criminal Code. There is no specific form required for this application or warrant in the Criminal Code. It is strongly recommended that the application be in writing .5!ill1 under oath or solemn declaration. Normally, as has already been discussed, in the case of search warrants an oath is considered to be the minimum constitutional safeguard. Considering that the section allows warrantless searches in the case of urgency, it makes sense that the application be under oath. Although no form is required, which would permit a verbal application, a written application could easily be modeled on Criminal Code Form 1 modified to fit the circumstances;

Tracking Warrant (I)

492.1 C.C.

a federal offence has been or will be committed and relevant information to the commission of that offence can be obtained through the use of a tracking device (electronic location monitor for thing or person) (section 492.1 Criminal Code) (this information should be modeled on Form 1) The justice need only be satisfied that there are "reasonable grounds to suspect" in this type of warrant which is a lower standard than "reasonable grounds to believe". Unlike most warrants, this warrant can issue to obtain information in relation to future occurrences. These situations are referred to as anticipatory search warrants. The object of the warrant is to obtain "information" that is relevant to the offence. This may be different than "evidence" which is the object in a section 487 warrant and is different than the object of a number recorder warrant;

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Number Recorder (m) Warrant 492.2 C.C.

a federal offence has been or will be committed and that information that would assist in the investigation could be obtained through a number recorder or by searching lawful records of telephone calls (section 492.2 Criminal Code) (this information shall be modeled on Form 1). The justice need only be satisfied that there are "reasonable grounds to suspect" in this type of warrant which is arguably a lower standard than "reasonable grounds to believe", Unlike most warrants, this warrant can issue to obtain information in relation to future occurrences. These situations are referred to as anticipatory search warrants. The object of the warrant is to obtain information that is relevant to the investigation. This may be different than "evidence" which is the object of a section 487 warrant and is different than the object of a tracking warrant.

Ex Juris Warrants (n) for Offence Out Of Canada Section 477.3(s) C.C.

a federal offence committed in the territorial seas or internal waters or beyond the Territory of Canada for the limited circumstances set out in sections 477.3(2) and 477.1 of the Criminal Code;

Warrant to enter (0) dwelling house to carry out arrest/ apprehension 529.1 C.C.

there are reasonable grounds to believe a person identified or identifiable by the warrant is, or will be present, in a dwelling house, and either

Valuable Warrants

The Criminal Code authorizes a warrant to search for valuable metals under section 395(1). This warrant was revised in S.C. 1999 c.5, s. 11 (in force May 1,1999) presumably to correct problems with failing to require ... (go to page 10)

Metals (p)

i)

a warrant under a federal Act to arrest or apprehend the person is in force anywhere in Canada; or ii) grounds exist to arrest the person without warrant under section 495(1 lea) of the Criminal Code or another federal Act; (a similar power is available as an endorsement to an existing warrant under section 529);

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neither reasonable and probable grounds of an offence nor that evidence would be found (Edward Greenspan, Martin's Annual Criminal Code 1998 at p. 583). The amended warrant permits a peace officer or public officer to apply for a warrant to search any place or person if there are reasonable grounds to believe that there are valuable minerals deposited in a place or held by any person contrary to the Criminal Code or any other federal Act.

(vi)

describes the offence in respect of which the search is to be made sufficiently so that the justice can identify the transaction in question. The actual wording in the statute is not necessary15;

(vii)

accurately describes the location to be searched - normally this is by civic address if it is a place. If the place does not have a civic address or it can not be ascertained, it should be identified by a detailed, precise description which would serve to properly identify the location 16 . One search warrant may authorize the search of several premises providing the proper test is met for each one17 . In cases where a person is the subject of a warrant (Le., DNA; Impaired Driving Blood; Body Print Impression; or General Investigative warrant for hair sample comparison other than DNA) the persons name will normally serve as the "location". In those rare cases where the person is unidentified, it is still possible to have a warrant issued so long as the description given is sufficient to identify the target of the investigation.

(viii)

describe the items to be seized - The description should be detailed enough to avoid a fishing expedition (i.e., if the description is too vague), but items may be described in a general or summary fashion 18. Further, the person executing the search must be able to precisely determine what is to be seized 19.There must, however, always be a connection between the material searched for and the offence alleged in the information. It is not

15Fanning v. Gough (1908)18 C.C.C. 66 (P.E.I.CA) 16 see

Sleeth v. Hurlburt (1896) 3 C.C.C. 197 (S.C.C.)

17Supra, footnote 16 18 Shumiatcher v. A.G. Saskatchewan et al.(1960) 129 C.C.C. 267(Sask.Q.B.); Shumiatcher v. A. G. Saskatchewan et al.(1960) 129 C.C.C. 270 (Sask.Q.B.) 19R.

v. Trottier [1966] 4 C.C.C. 321 (Que.CA) 10

necessary to set out the name of the owner of the goods; (ix)

set out the informant's reasonable grounds to believe (or in the case of Tracking Warrants or Number Recorder Warrants to suspect) that the items are in the place to be searched. It is not enough for the informant to swear that they believe or suspect. The informant must set out the facts which lead them to the belief. Wherever possible, the source of the information and the information itself is to be given (Le., personal observation, other named police officers or investigators who made observations, named witnesses, documents, expert opinions, hearsay). Named sources are usually more creditable and can be given more weight by the justice. However, in many cases the grounds are based in whole or in part on information supplied by "confidential human sources/informants". In such cases, the drafter of the information must carefully draft grounds to avoid identifying the informer. The drafter must strike a balance to ensure there is enough detail in the sworn information for the justice to assess weigheD. If the only evidence available is from a confidential informant who has not been corroborated by other observation, and the confidential informant has no proven track record of providing accurate information, the grounds in the information amount to mere rumour2' and do not constitute reasonable grounds. If, however, there is other material which corroborates or verifies the accuracy of the information to provide a basis for expected reliability, the weight of the information can be evaluated to see if it becomes reasonable grounds22 . Often the confidential informant will have provided information to the informant or other officers which has proven reliable in the past. This "track record" is often useful to attach weight or credibility to the grounds. It is not sufficient for the affiant to state the information is from a confidential informant who has in the past proven reliable23 • This is probably the second most frequent drafting error. The justice must have sufficient information to conclude how to weigh that evidence. Information such as the number of times information has been obtained, if it was given to the same peace officer (it is their "source") or another (peace officer or a third party), whether it was validated in the past by searches, if charges were laid or proven as a result of the previous information are some useful suggestions. In addition, it is useful to know the informants means of knowledge (Le., firsthand or not). Overall, the standard of reasonable grounds is met when

20see Leipert v. R. (1997) 112 C.C.C. (3d) 385 (S.C.C.) At p. 392

21R. v. Debot (1989) 52 C.C.C. (3d) 193 (S.C.C) at p. 215 22R. v. Berger (1989) 48 C.C.C. (3d) 185 (Sask.CA) 23R. v. Parent (1989) 47 C.C.C. (3d) 385 (Y.T.CA) 11

"... the state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone is at the point where credibly based probability replaces suspicion." 24;

IV

(x)

pledge in the belief of the grounds set out in the information from the sources used. Often this is found near the beginning of the grounds or at the end. It is often obvious that the person seeking the warrant believes the grounds. However, failure to specifically state this is probably the most frequent drafting error. As with all of the other requirements, if it is not properly stated in the information, the search warrant cannot be issued. This general rule always applies where unnamed confidential sources are used, where there is a failure to state the source of the information or list the grounds of belief. There is case authority that suggests where a peace officer on oath states and names the sources of his information and. these named sources of information are peace officers, and. if in the totality of the circumstances it is apparent that the officer relied on and believed these officers, the absence of a specific pledging of belief may not be fatal. The actual pledge in belief is obviously a preferable practice25 ;

(xi)

if the applicant is seeking an order to execute the search warrant at times not normally permitted in the statute, the reasons to depart from those times should be stated in the information to obtain. The legislation should be read to determine if such limitations exist. A recent amendment to the Criminal Code section 488 (Bill C-17 June 16/97) makes this mandatory for warrants issued under section 487 of the Criminal Code and section 487.1 Telewarrants which are to be executed by day unless specified in the warrant. A Justice always has the discretion not to approve an execution at night, and, indeed, has the discretion to specify an appropriately restrictive time for execution in the existing circumstances.

COMMON PROBLEMS

Although not as empirical as Justice Hill's reference to the Law Reform Commission Study26, it is my experience and opinion that 90% of search warrant informations are defective in some manner. Roughly 75% of these defects could be cured by the elimination of two main problems - properly treating and describing confidential informants; and

24see Hunter et al v. Southam Inc., (1984), 14 C.C.C. (3d) 97 at p.p.,114, 115 (S.C.C.) 25see R. v. Yorke (1992) 77 C.C.C. (3d) 529 at pp 542-3 (N.S.C.A.) approved (1993) 84 C.C.C. (3d) 286 (S.C.C.) 26"Warranted Searches: A Practical Perspective", (1995), 4 S. &S.L.R. 12

ensuring there is a pledge of belief in the information. All errors are significant given that search warrants are construed strictisimili juris. Accordingly, in cases where a warrant was required, any failure to follow the enabling law means that a warrant issued in such circumstances is illegal and thereby constitutes an unreasonable search and seizure under section 8 of the Charter. Whether the fruits of the search and/or any evidence derived therefrom will be excluded requires a ruling under section 24 of the Charter. I have summarized the most common errors found in search warrant informations below. 1. Failure to Pledge Belief in Grounds - Often this is found near the beginning of the grounds or at the end. The easiest way to accomplish this is for the informant to insert a paragraph which says "I believe the above to be true". The other alternative is for the informant to state at the beginning of the sworn portion of the information the customary affidavit language (or a variant thereof): "I have personal knowledge of the facts and matters hereinafter deposed to, save and except where stated to be made upon information and belief, and where so stated I verily believe the same to be true." It is often obvious that the person seeking the warrant believes the grounds. However, failure to specifically state this is probably the most frequent drafting error. As with all other requirements, if the pledge in belief is not properly stated in the information, the search warrant cannot be issued. This general rule always applies where unnamed confidential sources are used. Where there is a failure to state the source of the information or list the grounds of belief, there is case authority that suggests where a peace officer on oath states and names the sources of his information and these named sources of information are peace officers, and if in the totality of the circumstances it is apparent that the officer relied on and believed these officers, the absence of a specific pledging of belief may not be fatal. The actual pledge in belief is still preferable. 27 Finally, a bare pledge in belief is not sufficient. There must be sufficient detail in the evidence in the information to sUbstantiate the belief for the judicial official to conclude the informant could reasonably hold this belief. In the absence of more than a bare pledge in belief, the grounds amount to nothing more than mere rumour or gossip28; 2. Failure to adequately describe Confidential Informant -to describe a confidential informant in terms such as "a proven reliable confidential informant" is not a sufficient description (it is essentially a conclusory statement). This is probably the second most frequent drafting error. If the only evidence available is from a confidential informant who has not been corroborated by other observations and has no proven track record of

27see R. v. Yorke (1992) 77 C.C.C. (3d) 529 at pp 542-3 (N.S.C.A.) approved (1993) 84 C.C.C. (3d) 286 (S.C.C.)

28R. v. Debot (1989) 52 C.C.C. (3d) 193 (S.C.C) at p. 215 13

providing accurate information, the grounds in the information amount to mere rumour29 and do not constitute reasonable grounds. If, however, there is other evidence which corroborates or verifies the accuracy of the information to provide a basis for expected reliability, the weight of the information can be evaluated to see if it becomes reasonable grounds 30 • Often the confidential informant will have provided information to the informant or other officers which has proven reliable in the past. This "track record" is often useful to attach weight or credibility to the grounds. It is not sufficient to state the information is from a confidential informant who has in the past proven reliable31 . The justice must have sufficient information to conclude how to weigh that evidence. Information such as the number of times information has been obtained, if it was given to the same peace officer (it is their "source") or another (peace officer or a third party), whether it was validated in the past by searches, if charges were laid or proven as a result of the previous information are some useful suggestions. In addition, it is useful to know the informants means of knowledge (i.e., firsthand or not). Overall, the standard of reasonable grounds is met when "... the state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone is at the point where credibly based probability replaces suspicion." 32; 3. Fishing Expedition - it is often the case that the desire or hunch of the informant will lead to an attempt to justify a warrant. Alternatively, an informant may attempt to use proper grounds to obtain a warrant to extend what would be a justifiable search warrant to investigate or search for things or at places that grounds do not justify searching. 33 It makes little sense for peace officers to contaminate an otherwise good warrant by specifying offences or things to investigate which cannot be substantiated. They would usually be able to seize these things as an overseizure under section 489 if they came upon them in the course of a lawful warranted search; 4. Conclusory Statements - Stating conclusions in the information is not evidence. Swearing something is a fact does not necessarily make it a fact. Informations which are conclusory in nature often take the form of story in which the officer summarizes his investigation with the use of such words as: "as a result of my investigation I learned the following things";

'9R. v. Debot (1989) 52 C.C.C. (3d) 193 (S.C.C) at p. 215 30R. v. Berger (1989) 48 C.C.C. (3d) 185 (Sask.C.A.), R. v. Okeke [1999] O.J. No. 3693 (Ont. G.D.) 31R. v. Parent (1989) 47 C.C.C. (3d) 385 (Y.T.CA) 32

see Hunter et al v. Southam Inc., (1984), 14 C.C.C. (3d) 97 at p.p.,114, 115

(S.C.C.) 33See R. v. Genest [1989]1 S.C.R. 59; R. v. Thompson [1990]2 S.C.R. 1111 14

"my investigation reveals". These are worthless statements unless the evidence is cited in the information to support the conclusion 34 • 5. Failure to sUbstantiate thin grounds with investigative surveillance work - This typically arises when the informant is in a rush. The informant is concerned that evidence will be lost if they do not act quickly. In R. v. Silveira the Supreme Court of Canada 35 served notice that "to enter a dwelling house, even in exigent circumstances, constitutes such a serious breach of the Charter that it will likely lead to a ruling that the evidence is inadmissible." In R. v. Feeney6, the majority (5) of the Supreme Court of Canada left open the issue of whether exigent circumstances not amounting to "hot pursuit" could justify a warrantless entry. The other four judges felt that it could. Silveira recognized that Parliament could enact legislation to assist in this area of the law. Parliament has since taken steps to enact a statutory right to search in exigent circumstances(section 487.11 Criminal Code; and section 11 (7) Controlled Drugs and Substances Act).Nevertheless, Courts are likely to closely scrutinize such uses. Accordingly, peace officers will continue to question the need for a warrant in some situations and will try to act in cases where further investigation is required to justify either an exigent circumstances search or a warranted search. Other situations in which thin grounds are not substantiated often arise in cases where a confidential or even a named informant has provided what seems to be reliable information. One should realize that every confidential informant has a time when they do not have a track record. In such cases the investigator will have to resort to other investigatory techniques to corroborate this information. The same may be said in the case of named informants although they generally have a higher starting point on the "reliability index" than untested confidential informants. The information available must still be capable of allowing the informant to conclude that there are reasonable grounds to believe all essential requirements for a warrant have been met. Investigators must be careful not to seek a warrant before these elements can all be established.

6.

Failure to show an expectation that the things sought are in the premises Most search warrants are issued on the basis of a present probability that the things sought are in the place to be searched. Some search warrants permit a warrant to search in a future expectation or "anticipatory" basis. Examples of Criminal Code warrants which permit anticipatory searches include general investigative warrants (section 487.01); tracking warrants (section 492.1); and number recorder warrants (section 492.2).

34see R. v. Sanchez and Sanchez (1994) 93 C.C.C. (3d) 357 (Ont.G.D.); (R. v. Couvillon [1996] O.J. No. 4612 (Ont. G.D.) 35(1995) 97 C.C.C. (S.C.C.) At p. 500 36(1997) 115 C.C.C. (3d) 129 (S.C.C.) At p. 156 15

7. Poor description of items affecting ability to recognize - The description should be detailed enough to avoid a fishing expedition (Le., if the description is too vague), but items may be described in a general or summary fashion 37 • Further, the person executing the search must be able to precisely determine what is to be seized 38 .There must, however, always be a connection between the material searched for and the offence alleged in the information. It is not necessary to set out the name of the owner of the goods; 8. Misdescription of location - It sometimes occurs that the informant has the wrong address in the information or the warrant or both. Once a warrant has been executed or has expired as to time for execution, it is not capable of amendment. In such cases if changes are sought such as to the place of execution, extension of time, items to be searched for, a fresh application and warrant are necessart9 . If, however, the warrant has not yet expired and has not been executed, and changes are necessary, particularly in urgent circumstances, changes can be made if care is taken for the Informant to re-swear the information and deal with any changes to that document that are necessary. This latter practice is, however, best avoided as mistakes can easily occur. The best practice is to make a fresh application with a new information to obtain and seek a new warrant with the changes on its face. 9. Typographical errors or Computer Errors - many warrants and informations are now drafted on computer. Making errors by updating a precedent or in revising a draft is not that uncommon. Often precedents are not up to date with the law or have been of poor quality to begin with. This perpetuates problems. Old habits are not necessarily good habits. 10. Failure to justify time of execution - An amendment to section 488 (applying to s.487 and 487.1 Criminal Code warrants) requires execution by day unless there are reasonable grounds to execute at night, and reasonable grounds are included in the information, and the warrant authorizes it (Bill C-17 June 16/97) . This also applies to warrants needing execution beyond one day. The period of execution must be estimated in the information and authorized in the warrant itself. Stale Grounds - Peace officers work shifts and are entitled to take vacations like 11. most people. This sometimes presents a problem. When a court assesses whether the informant had an expectation that the things they were searching for were on the premises, they are going to weigh the evidence to assess whether grounds existed at the time to

37Shumiatcher v. A.G. Saskatchewan et al.(1960) 129 C.C.C. 267(Sask.Q.B.); Shumiatcher v. A.G. Saskatchewan et al.(1960) 129 C.C.C. 270 (Sask.Q.B.) 38R. V. Trottier [1966] 4 C.C.C. 321 (Que.C.A.)

39See R. v. Jamieson, (1989),48 C.C.C. (3d) 287 (N.S.C.A.) 16

support a current belief the things were there. The same consideration will arise in cases where anticipatory warrants are permitted. R. v. Russel/40 accepts that stale grounds may, nevertheless, be relied upon if there is sufficient recent corroborating information. 12. Poor description of offence(need who, what, where, how) - The offence must be described sufficiently so that the justice can identify the transaction in question. The actual wording in the statute is not necessary41. In Bergeron et a/. v. Deschamps et a/ 42 the failure to specify the perpetrator nor the victim nor the object of a fraud resulted in a warrant being struck down. Inaccurate summary or overstatement of evidence - Normally this is through 13. inadvertence in which case, a court may still justify the warrant by assessing the narrative remaining in the information after excising offending parts43 . Additionally, a court may in such circumstances, be satisfied the actions of the informant do not amount to bad faith and find that the difficulty could not bring the administration of justice into disrepute. In Silveira v. R. 44 , officers entered the premises that they held reasonable grounds to obtain a search warrant while they were in process of obtaining a warrant for a drug trafficking investigation. The purpose was to freeze the premises and prevent destruction of evidence while the warrant was obtained. This containment of the scene was not disclosed to the justice. At the time the officers felt they had a right to enter in exigent circumstances. The court stated that as a result of this ruling that "police will be aware that to enter a dwelling house without a warrant, even in exigent circumstances, constitutes such a serious breach of Charter rights that it will likely lead to a ruling that the evidence seized is inadmissable (at p. 500). To exclude the evidence on the facts of this case would not affect the fairness of the trial, and the effect of admitting the evidence which was the only evidence available would not have an adverse effect upon the administration of justice. The Court noted that legislation could assist with establishing exigent circumstances searches and these have now been enacted in section 487.11 of the Criminal Code and section 11 (7) of the Controlled Drugs and Substances Act. On the other hand, if the officer deliberately misleads the issuing justice, there is a significant risk that the entire warrant will be struck down and the evidence excluded. An

4°[19961 B.C.J. No. 2260 (B.C.S.C.) 41Fanning v. Gough (1908)18 C.C.C. 66 (P.E.I.C.A.)

42(1977) 33 C.C.C. (2d) 461 (s.C. C.) 43see R. v. Breton (1994) 93 C.C.C. (3d) 171 (Ont.CA) 44(1995) 97 C.C.C. (3d) 450 (S.C.C.)

17

example of this is R v. Innocente45 • In that case, an officer in the course of a murder investigation received wiretap information that revealed detailed information in support of a drug investigation. The officer did not wish the target of the murder investigation to become aware of the wiretap. He chose to misrepresent the information as a confidential informant rather than seek to have the warrant sealed. The court excluded the seized drugs on the basis that the integrity of the judicial process would be seriously damaged. The proper remedy was to exclude the evidence to ensure the administration of justice was not brought further into disrepute. 14. Excessive force in execution - This is not a matter related to warrant informations. It is, however important to refer to. As we have already discussed, a high proportion of warrant informations are defective. Accordingly, we will be dealing with a consideration of section 8 of the Charter in many cases. In R v. Edwards46 Mr. Justice Cory stated "as a general rule, two distinct inquiries must be made in relation to section 8. First, has the accused a reasonable expectation of privacy? Second, if he has such a reasonable expectation of privacy, was the search conducted reasonably?" There is a second hook which comes from Collins v. R: "A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search is carried out is reasonable."47 If we assume that a high proportion of search warrant informations are defective, officers would be well advised to avoid the use of excessive force and cause as little mess to the premises as is necessary to carry out a thorough search. V

Conclusion

Search warrants have a long history of careless preparation which carry a significant risk to successful prosecution in light of recent judicial pronouncements from the Supreme Court of Canada. If there is continued failure to address shortcomings, the potential for more serious cases to be impacted is substantial.

45(1992) 113 N.S.R. (2d) 256 (N.S.CA) 46(1996) 104 C.C.C. (3d) 136 (S.C.C.) 47(1987) 33 C.C.C. (3d)1 (S.C.C.) At p. 14 18