United States of America v. Price et al. [Indexed as: United States of America v. Price]
86 O.R. (3d) 762
Court of Appeal for Ontario,
Sharpe, Blair and Lang JJ.A.
July 10, 2007
Criminal law -- Mutual legal assistance -- Sending order -- Search and seizure -- Applicant bringing application for sending order under s. 15 of Mutual Legal Assistance in Criminal Matters Act in respect of material seized pursuant to search warrant -- Application judge finding that search warrant was facially overbroad and that seizure exceeded terms of warrant -- Application judge not erring in concluding that he had discretion to send requesting state those materials that could properly have been seized under valid warrant -- Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.), s. 15. [page763]
On an application for a sending order under s. 15 of the Mutual Legal Assistance in Criminal Matters Act, the application judge found that the materials in question had been seized pursuant to a search warrant which was facially overbroad and that the seizure itself had exceeded the terms of the warrant. Nevertheless, he found that the Act gave him the discretion to send to the requesting state those materials that could properly have been seized under a valid warrant. The respondents appealed.
Held, the appeal should be dismissed.
The application judge did not err by concluding that s. 15 of the Act gave him the discretion to make a sending order, despite his finding that the search warrant had not been executed according to its terms and conditions. It would be inappropriate, as a matter of policy, to adopt an interpretation of s. 15(1) that would require the judge to take a purely mechanical approach and refuse a sending order for every minor or trivial failure in the execution of the warrant. The discretion in question must be exercised in a manner that comports with the language and overall purpose of the Act. The judge must rigorously scrutinize the manner in which the warrant was executed to determine whether there was any significant or meaningful failure to execute the warrant according to its terms. If there was, the wording of the section requires the judge to refuse to make a sending order. The application judge fulfilled that duty, and his decision to make a sending order fell within the limits of the discretion allowed under the Act.
The application judge did not err by concluding that he could make a sending order despite his finding that had this been a domestic search warrant, it would have been quashed because it was overly broad. The role of a judge on a s. 15 application is not akin to that of a judge asked to quash a search warrant before trial. Rather, it is akin to that of a trial judge asked to consider the admissibility or exclusion of seized materials pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. The application judge carefully identified and weighed the appropriate competing concerns and concluded that, in the circumstances of this case, a sending order of selected items was appropriate despite the defective warrant. There