ITO: Improper Try to ObfuscateR. v. Gardner and Howard, 2015 BCSC 801 (CanLII)
Keywords: Warrant – Marijuana – Telewarrant – Misleading – Voir Dire
Synopsis: The accused were charged with unlawfully producing cannabis marijuana and possession of marijuana exceeding three kilograms, for the purposes of trafficking. The trial began with two voir dires, involving challenges to the issuance and execution of a search warrant. The search warrant was obtained via telecommunication by a peace officer of the RCMP (the “Informant”), after the court registry had closed for the day. The Informant’s ITO relied on three bodies of evidence:
- Hydroelectric power usage;
- Overhead flights and visual observations; and
- PRIME and CPIC records.
The trial judge found that the search warrant was improperly issued and, as a result, the subsequent search was a breach of s. 8 of the Charter. Moreover, the trial judge declared the evidence obtained from the search inadmissible under s. 24(2) of the Charter.
Analysis: The trial judge first considered the procedural basis for issuing the warrant. The trial judge noted obiter in R. v. Martens, 2004 BCSC 1450, which suggests that in some respects a telewarrant may be preferable because of the better record it produces (at para. 7). After reviewing further caselaw with respect to ss. 487 and 487.1 of the Code, however, the trial judge determined that the presumption built into the Code is that in-person hearings are preferable and that “technological substitutes almost inevitably erode these protections” (at para. 10).
Given his determination that in-person applications are the general rule, the trial judge went on to consider whether or not ‘impracticality’ justified an application by telecommunication in this case. The trial judge examined the term ‘impracticable’, as it was recently dealt with in R. v. Daniels, 2015 ONCA 283. Daniels explains ‘impracticable’ to mean “more than merely inconvenient for the affiant, but need not be impossible…[it should be] very difficult or not practical” (at para. 14, Daniels). Noting this, the trial judge was left with the question of why the Informant could not have waited one more day before applying for the warrant in-person.
The trial judge did not accept the Informant’s justification that the court registry would reopen the following morning three hours after the proposed start time for the execution of the warrant, a time that was allegedly necessary to maximize daylight hours (at para. 12). Nor did the trial judge accede to the Crown’s argument that there was no need to demonstrate urgency or to wait another day to obtain a warrant (at para. 16). The trial judge also did not accept the Crown’s invitation to take judicial notice of the fact that a justice would, in any event, not have been available at the registry, as this was not a basis relied on by the Informant (at para. 21). As a result, the trial judge was not satisfied that ‘impracticality’ was demonstrated and, therefore, found the issuance of the search warrant applied for by telecommunication to be improper (at para. 26).
In light of s. 24(2) jurisprudence, the impugned evidence may have been admissible, notwithstanding the trial judge’s findings with respect to an unsubstantiated procedural basis for issuing the search warrant. With this in mind, the trial judge went on to consider the substantive grounds for issuing the warrant (at para. 27).
The accused argued that the information provided in the ITO was misleading by omission (at para. 35). Further, the accused submitted that the inclusion of irrelevant and misleading material in the ITO and the omission of other information that would have put the material included in fairer perspective were fatal to the ITO (at para. 58). On the other hand, the Crown submitted that, even without the information concerning the hydroelectric power, there were sufficient grounds, as amplified by review, on which an ITO could be authorized (at para. 61).
The trial judge’s first determination was that the information about excessive use of hydroelectric power was obtained through triple hearsay, which made its reliability questionable (at para. 31). The second finding was with respect to the surveillance information from overhead flights, which, in the way the ITO “was stitched together created a seriously misleading impression at odds with the degree of candour required in the circumstances” (at para. 42). This was due to the fact that the information in the ITO suggested a fly over took place by an aircraft capable of hovering (like a helicopter), whereas, in actuality, the fly over took place in a fixed wing aircraft at 3500 feet (at para. 37). Finally, the trial judge found the PRIME and CPIC records to be of little probative value with respect to what was alleged and sought in the ITO (at para. 53).
The trial judge concluded that the Informant could not rely on two of the three grounds – hydroelectric power records and PRIME records (at para. 70). As such, on the basis of a ‘substantial deficiency’, as considered in R. v. Bacon, 2010 BCCA 135, it was found that after stripping away the misleading parts, there was not enough remaining to justify the issuing of the warrant in the case at hand (at para. 76).
The trial judge further noted that Bacon addressed a residual discretion to strike down warrants for abuse of process (at para. 77). Quoting from R. v. Morris (1998), 134 C.C.C. (3d) 539 (N.S.C.A.) at para. 53, the trial judge stated that in this case the defects in the material were such that the material assembled was “so subversive of process that the resulting warrant must be set aside to protect the process and the preventive function it serves” (at para. 81). Hence, in the alternative – were there to be enough of a substantial basis, notwithstanding the removal of the misleading parts – the warrant would still be struck for abuse of process.
Importance: The door remains open for an affiant to put forth grounds in an ITO by telecommunication that a justice would, in any event, be unavailable and that judicial notice should be taken. Nevertheless, this decision provides a firm warning to applicants that the substantive grounds must be reliable and complete, whether in-person or by telecommunication. Defence counsel should remain wary of not just what is but also what is not included in an ITO. Omissions or misleading information or both may result in findings of insufficient grounds or – more condemnable – abuse of process.