Court of Appeal for Ontario

Date: 2017-06-14 Docket: C61204

Judges: Simmons, van Rensburg and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

John Michael Saint Appellant

Counsel

For the Appellant: Samuel Walker and Matthew R. Gourlay

For the Respondent: Amanda Hauk and Bradley Reitz

Heard: December 5, 2016

On appeal from the conviction entered by Justice R.G. Hunter of the Ontario Court of Justice, dated May 19, 2015.

Decision

B.W. Miller J.A.:

Overview

[1] Is a search warrant issued under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("the CDSA"), invalid if it does not specify a date – or range of dates – for its execution? Can a date of execution nevertheless be implied? These are the issues on this appeal.

Background

[2] Sarnia police believed, based on tips from confidential informants, that the appellant was trafficking in drugs from his residence on Sutton Street in Sarnia. The police applied to a Justice of the Peace for a warrant under s. 11 of the CDSA to search the appellant's residence. The warrant specified the target of the investigation, the address to be searched, and the objects of the search. It stated that it provided authorization for "any peace officer, at any time, to enter the said place …" (emphasis added) to conduct the search.

[3] The warrant was issued at 12:45 p.m. on April 10, 2014. It was executed by the police the same day, approximately seven hours later. The police seized a quantity of drugs, including methamphetamine, morphine, and hydromorphone, with an estimated value of $7,000 - $11,000.

[4] The appellant argued that the warrant was invalid and the search a violation of his rights under s. 8 of the Charter. He brought an application under s. 24(2) of the Charter to exclude the evidence obtained. The basis of his challenge to the warrant was that it was, on his characterization, temporally unlimited; that is, the authorized search could be conducted on any date in the future, regardless of whether it took place days after issuance or years later, in the sole discretion of the police. Such an unlimited warrant, the appellant argued, is invalid, and the subsequent search was therefore warrantless and a violation of the s. 8 Charter right not to be subjected to unreasonable search and seizure.

[5] The trial judge rejected this argument, which the appellant renews on appeal. For the reasons that follow, I conclude that the trial judge made no error in finding that the warrant was valid and was executed in a reasonable manner that did not violate the appellant's Charter rights. I would dismiss the appeal.

Analysis

(1) The Reasons for a Search Warrant

[6] The function of a search warrant is to authorize police officers to enter a specified place they would otherwise have no authority to enter, in order to search for and seize specified property. Because forced entry into a private place, particularly a person's residence, is such an extraordinary exercise of executive power, it is subject to stringent juridical control: it must be judicially authorized ex ante and is subject to judicial scrutiny ex post: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 29.

[7] With respect to prior judicial authorization, the law is clear that a warrant must contain an adequate description of the place to be searched and the property to be searched for. There are multiple reasons for this demand for specificity. First, meaningful judicial pre-authorization requires specific details. It is crucial for effective judicial control of the search that the reviewing justice understand the parameters of the proposed search, and that the search conducted be the search that was in fact authorized: R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 49. Second, by providing a precise description of the place to be searched, the warrant directs the actions of the executing officers, guiding them to the specific place to be searched and defining the boundaries of the search. An insufficiently specific warrant will fail to provide the requisite guidance to the executing officers, leaving them to fill in the blanks with their own knowledge, or to pursue attractive leads at their own discretion: Ting, at paras. 60-61. Third, specification of place in the warrant allows a person served with the warrant to readily apprehend that executing officers have legal authority to enter and conduct the search, reducing the risk of conflict and violent resistance to the search: Ting, at para. 49; Eccles v. Bourque, [1975] 2 S.C.R. 739.

[8] The appellant argues that just as a warrant that does not adequately specify either the place or subject matter of the search does not fulfill these three functions of a search warrant, neither does a warrant that does not specify a date for the search. An undated warrant, the appellant argues, leaves the date of execution completely in the discretion of the executing officers – conceivably to a date where there are no longer grounds for a search. There may no longer be reason to believe that the subject matter of the search will still be present. The occupant of the premises may have moved on. Such a warrant is deficient in the guidance it provides to an executing officer, because although it may provide clear direction as to where the search is to take place and what is to be searched for, it provides no direction at all as to when the warrant can be executed. To this extent it also undermines the effectiveness of prior judicial authorization. Similarly, the absence of a clear direction in the warrant leaves occupants uncertain as to whether the execution of the warrant, perhaps some time well after issue, is reasonable and whether they are bound to comply. Precision as to when a warrant may be executed is as critical to its function and validity, the appellant argues, as precision as to where the search is to take place and what is to be searched for.

[9] It is uncontroversial that a non-expiring warrant would undermine the purposes for the warrant requirement canvassed above: facilitating meaningful judicial pre-authorization; directing and limiting the police in the execution of the search; and allowing occupants to understand the scope of their obligation to cooperate with the search. There is an implied requirement that warrants be executed within a reasonable time of being issued: R. v. Coull (1986), 33 C.C.C. (3d) 186 (B.C. C.A.), at para. 12. Warrants that are not executed within a reasonable time, whether because of delayed execution or because an unreasonable time frame is expressly authorized by the warrant, have long attracted judicial disapprobation. In R. v. Sing (1892), 2 B.C.R. 167 (S.C.), an example supplied by the appellant, a warrant to enter a premises, issued under the Gaming Houses Act, R.S.C. 1886, c. 158, was silent as to its expiry and was executed three years after it was issued. The court quashed a conviction for obstructing a constable in the execution of the warrant, on the basis that the warrant had not been executed within a reasonable time:

[E]very order under section 2 of the Act respecting gaming houses should be executed within a reasonable time. The Act on this head is silent, but it never was intended that after a complaint made and an order for search given the order should be filed away without any attempt to enforce it for years. The premises may no longer be used for an improper purpose, and it would be contrary to justice that the stringent provisions of this Act should be put in force when or how the police thought proper.

[10] The appellant's argument, which I set out below, is that the warrant in this appeal is even more egregious than a warrant that was simply left undated: it is, on the appellant's characterization, an expressly non-expiring warrant intended to be exercised at the discretion of the executing officer "at any time". I will explain below why I am not persuaded by the characterization of this warrant as expressly non-expiring. I will then address the more general question of whether warrants that do not specify a date (or range of dates) for execution, can nevertheless have an implied execution date.

(2) Is the Warrant Non-Expiring?

[11] The appellant characterizes the warrant in this case as expressly non-expiring. The warrant is intended, the appellant argues, to be executable at any date in the future, at the discretion of the police. The appellant seeks to distinguish this appeal from those cases in which the warrant in question was merely silent as to the date of execution, and an expiry date could arguably be implied (a class of cases to which I will return below).

[12] The appellant's argument proceeds in this fashion: although the CDSA does not prescribe any form for a warrant, the warrant used in this case was apparently based on a prepared form that did not contain a blank field into which an execution date was to be entered. The absence of a date was therefore not a mere slip – a failure to include something that was meant to be included. Neither was the omission a mere technicality. The design of the form, the appellant argues, omitting even a field to enter a date, is some evidence of an intention that the warrant was not intended to have any temporal limit.

[13] This argument is further supported, the appellant argues, by the express language of the form, authorizing entry "at any time", which the appellant interprets as literally permitting execution at all times, on any date in the future, without limitation. In support of this reading, the appellant relies on R. v. Malik, 2002 BCSC 1731, where the Crown conceded that a warrant that similarly authorized a search "at any time" was open-ended and therefore invalid, and that a search conducted two days after the warrant was issued violated s. 8 of the Charter.

[14] The context of Malik, however, is different from the case on appeal in two key respects: Malik involved the execution of a warrant issued under the Criminal Code, R.S.C. 1985, c. C-46, rather than the CDSA, and in Malik, the officer who drafted the warrant testified that he intentionally used this language to give the warrant an open-ended effect "so as to give the R.C.M.P. latitude in accommodating changing circumstances when executing multiple search warrants.": at para. 8.

[15] In any event, the appellant's reading of "at any time" in Malik is not consistent with this Court's judgment in R. v. Shivrattan, 2017 ONCA 23, 35 C.R. (7th) 143, at paras. 60-61. In that case, and in the context of assessing the reasonableness of a nighttime search pursuant to a CDSA warrant, Doherty J.A. interpreted "at any time" in s. 11 of the CDSA as obviating the need for special justification for execution after 9:00 p.m. for warrants issued under the Criminal Code, as required by s. 488 of the Criminal Code.

[16] As the Crown argues, s. 11 of the CDSA is crucial context that informs the meaning of the phrase "at any time" in the warrant. Section 11 provides that "a justice who … is satisfied … that there are reasonable grounds to believe that …(a) a controlled substance … is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place …" (emphasis added). Unlike warrants issued under sections 487 and 487.1 of the Criminal Code, which must be executed by day (as that term is defined in the Code), unless the preconditions for execution at night in s. 488 are met, a warrant issued under s. 11 of the CDSA does not require any additional grounds to justify night-time execution, and no time of execution need be specified: Shivrattan, at paras. 60-61.

[17] The trial judge was correct to have rejected the characterization of the warrant as expressly non-expiring.

(3) Does the Warrant Have an Implied Execution Date?

[18] Although I reject the appellant's characterization of the warrant as expressly non-expiring, that is not the end of the analysis. The question remains whether the warrant is nevertheless invalid for not specifying a date for execution. (The appellant raises no issue as to the reasonable execution of the warrant, if the warrant was valid.)

[19] The Crown argues that it is sufficiently clear that the warrant is for an entry on the date the warrant was issued. The Information to Obtain requested a warrant to permit police to enter the residence on April 10, 2014. As the warrant was signed at 12:45 p.m. on April 10, and no other date appears on the warrant, it is implicit that the warrant that was sought was intended to be executed on April 10, the day it was issued. In such a circumstance, the date of issuance stated on the warrant is also the date for execution: an express specification of the date for execution would be superfluous.

[20] This proposition, that a date of execution can be inferred, and the failure to expressly set out a date is a technical fault that does not necessarily invalidate a warrant, is rooted in common sense and I accept it. In the context of warrants issued under the Criminal Code, it was accepted by Heeney J. in R. v. Rafferty, 2012 ONSC 703, concluding that a warrant signed on May 22, 2009 was to be executed that day. Although the appellant appealed to contrary authority from the trial courts of other provinces, holding that the absence of the date on a search warrant is a serious fundamental defect invalidating the search warrant (see, for example, R. v. L.S.U., [1999] B.C.J. No. 2305 (S.C.), at paras. 22-24), I do not find these authorities persuasive.

[21] In conclusion, the trial judge made no error in concluding that the warrant contained an implied date of execution, which was the date that it was issued. The warrant was facially valid. No other basis was raised for challenging the warrant under s. 8. That is sufficient to dispose of this appeal.

[22] It is not necessary for the resolution of this appeal to address the further questions of whether a warrant ceases to be valid after the expiration of its implied or express date of execution, and whether a search after that date would be a violation of s. 8 of the Charter.

Section 24(1): Exclusion of Evidence

[23] Given the foregoing analysis, it is not necessary that I address the exclusion of evidence under s. 24 of the Charter.

Disposition

[24] I would dismiss the appeal.

Released: June 14, 2017

"B.W. Miller J.A."

"I agree. Janet Simmons J.A."

"I agree. K. van Rensburg J.A."