Court of Appeal for Ontario

Date: 2018-07-13 Docket: C62627

Judges: Watt, Pardu and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Marc Jodoin Appellant

Counsel

Colin Wood, for the appellant

Tanit Gilliam and Ruth McGuirl, for the respondent

Heard: June 25, 2018

On appeal from: The convictions entered on January 26, 2016 by Justice S.K. Campbell of the Superior Court of Justice.

Reasons for Decision

Introduction

[1] The appellant challenges his convictions for possession of drugs for the purpose of trafficking. He argues that the trial judge was wrong to dismiss his application under the Canadian Charter of Rights and Freedoms to exclude evidence found as a result of the execution of general warrants issued pursuant to s. 487.01 of the Criminal Code, R.S.C., 1985, c. C-46. Relying on R. v. Telus Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, he submits that the investigative technique employed using the general warrant could have equally been authorized under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"). Section 487.01(1)(c) provides that a general warrant is not available where there is another statutory provision that "would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done."

[2] The relevant parts of the CDSA provide:

11(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance…in respect of which this Act has been contravened,

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance…and to seize it.

[3] No issue is taken with the underlying factual findings made by the trial judge.

Factual Background

[4] Police had information from several sources that the appellant was dealing in cocaine. They corroborated this information with surveillance showing frequent vehicle stops of short duration. They suspected that the appellant was using vacant commercial premises at 2116 Gladstone as a stash house. Although there was a sign on the premises for a business called Caboto Satellite, this did not appear to be an active business. There was no merchandise in the store and the telephone number for the business was not in service. The appellant attended sporadically at the business for short periods of time, and used a key to get in. An informant told police that the appellant's partner in the drug business lived in residential premises above this commercial unit. The appellant lived elsewhere.

[5] Police applied first for a "sneak and peek" warrant pursuant to s. 487.01, to confirm drugs were being stored at the stash house. That warrant is not challenged on appeal. They entered the commercial unit in the early morning hours and found a locked wooden box within an interior room. There was a safe inside the wooden box. Police found what they believed to be crystal methamphetamine, cocaine and marihuana in the wooden box and in the safe.

[6] The investigating officers discussed whether they should next obtain a search warrant under the CDSA or a general warrant. They wanted not only to seize the drugs, but also to link the appellant to the drugs. They wanted to execute the warrant just after the appellant left the commercial unit so that they could establish this connection. Given the residence of the appellant's partner above the commercial unit, they were concerned that he or others might destroy evidence if they saw the appellant being arrested. They reasoned that a CDSA warrant would not provide the time and flexibility a general warrant would provide. Since the appellant's attendance at the unit was so sporadic and unpredictable, they thought a general warrant giving a seven day window for execution and conditional on the appellant's presence at the unit was most appropriate. They were under the impression that CDSA warrants provided for shorter windows for execution. They also obtained a general warrant to search the vehicle used by the appellant and his home. They wanted to execute searches of all three locations simultaneously.

[7] The Information to Obtain ("ITO") set out the observations made of drugs in the commercial unit upon the execution of the "sneak and peek" warrant and the observations of the appellant's frequent but brief and sporadic entries into the locked vacant commercial premises, as well as the results of continued surveillance. This provided an ample basis for the asserted belief that the appellant was actively engaged in drug trafficking and that execution of a general warrant at those premises would afford evidence of that activity, as would a warranted search of his vehicle and home.

[8] The affiant set out in the ITO his reasons for believing that it was in the best interests of the administration of justice for the warrant to be issued, and his grounds for believing that no other statutory provisions permitted the proposed investigative procedure, stating: "[t]his application requires that techniques be used to gather evidence as opposed to simple search and seizure".

[9] The warrant was signed on February 22, 2012 and the officers set up surveillance at the commercial unit. It so happened that the appellant arrived there that same afternoon and was arrested a short distance away after he left the building. Significant amounts of crystal methamphetamine, cocaine, marihuana and other drug related materials were seized from the commercial unit, the appellant's vehicle and his home.

Trial Judge's Reasons

[10] The trial judge concluded that the general warrant was properly issued pursuant to s. 487.01(1)(c) of the Criminal Code. It permitted the police to defer execution of the warrant until the condition of the appellant's attendance at the commercial unit was fulfilled. He held that authorization for a prospective search, such as this, was not available pursuant to a conventional search warrant and dismissed the Charter challenge to the validity of the warrant.

Analysis

[11] A general warrant is to be "used sparingly as a warrant of limited resort" so that it does not become an "easy back door for other techniques that have more demanding pre-authorization requirements": Telus, at para. 56 (citation omitted).

[12] We agree that a warrant to be executed in the future upon the occurrence of a specified contingency is not a procedure contemplated by the conventional search warrant. While a conventional search warrant could have been obtained here, on the basis that there were reasonable grounds to believe that prohibited drugs were likely to be found in the premises, this procedure might not have linked the drugs to the appellant. As noted above, s. 11 of the CDSA provides that where there are reasonable grounds to believe there has been a contravention of the law relating to controlled substances, and that a controlled substance is in a place, a warrant may issue to search that place and seize the substance.

[13] As noted in R. v. Brand, 2008 BCCA 94, 229 C.C.C. (3d) 443, at paras. 50-51:

[T]here is nothing in the language of s. 487.01(1)(c) that precludes a peace officer from obtaining a general warrant solely because he or she has sufficient information to obtain a search warrant. Resort to a search warrant is only precluded when judicial approval for the proposed "technique, procedure or device or the doing of the thing" is available under some other federal statutory provision.

That the police are in a position to obtain a search warrant does not prevent them for continuing to investigate using all other lawful means at their disposal. Having regard to the requirements of s. 487.01(1)(a), I expect that in many cases the information the police present in support of an application for a general warrant would also support an application for a search warrant. I see nothing wrong in utilizing a general warrant to obtain information with a view to gathering additional and possibly better evidence than that which could be seized immediately through the execution of a search warrant.

[14] In Telus, the Supreme Court of Canada noted, at para. 71, that where police are confronted with the choice between a series of conventional warrants or an application for a general warrant, if they apply for a general warrant they must meet the stricter requirements of s. 487.01, which can only be issued by a judge, not a justice of the peace, and they must establish that it is in the best interests of the administration of justice to issue the general warrant.

[15] The court noted further, at para. 72:

In other words, by dint of its more stringent requirements, the general warrant contains a disincentive to its everyday use. In Ha and Brand, where the only alternative was a series of conventional warrants, reliance on a general warrant did not provide the police with an easy way out from the rigours of a more demanding legislative authorization – the general warrant was the more demanding legislative authorization. Thus, in these cases, it is harder to see how the general warrant provision might be misused.

[16] Unlike in Telus, here, there is no question of police evading stricter statutory requirements by seeking a general rather than a conventional warrant.

[17] 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.

[18] There is no statutory time limit for the execution of conventional search warrants, although it appears that the affiant here may have believed otherwise. When investigating drug related offences, the existence of reasonable grounds to believe that drugs are present immediately does not necessarily mean they will be present days later. Sometimes, a larger window for execution of a search warrant will be appropriate.

[19] We agree that prospective execution of a search, based on a future contingency, together with the simultaneous execution of related searches are not contemplated by a conventional search warrant. 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.

[20] As indicated earlier, there was an ample basis for the issuing judge to conclude that the statutory elements required to obtain a general warrant were satisfied.

[21] Accordingly, the appeal is dismissed.

"David Watt J.A."

"G. Pardu J.A."

"L.B. Roberts J.A."