In the Matter of DNA Warrants under s. 487 of the Criminal Code
Endorsement in Relation to the Issuance of Two DNA Warrants—29 November, 2014
Introduction
I have been presented with applications for two DNA warrants in relation to charges of aggravated assault.
I am satisfied that there are clearly grounds for the requested warrants to issue. However, certain issues arising from the applications merit mention as a learning opportunity.
The Format and Quality of the Materials
As I have said, the materials are factually and legally sufficient for their purpose and the informant is entitled to have the orders he seeks because these are applications for judicial authorization, not drafting tests. However, there are annoying issues with the materials that ought to be kept in mind for future applications.
First, I was presented with two separate informations-to-obtain in support of two proposed DNA warrants. However, each warrant related to the very same assault, the only difference being that two different defendants were the object of the proposed DNA warrants. Whenever multiple warrants or orders are sought at the same time in relation to a case (including different places or people to be searched, different types of orders, etc.), the informant should submit a single information-to-obtain. Depending on the nature of the orders sought, separate warrants or orders may be required (e.g. multiple s. 487 search locations should each have their own warrant, multiple DNA targets will likewise require their own warrant, but a general warrant might readily be combined in a comprehensive order with tracking authorization, etc.), but there is no reason to kill more trees and waste more of the issuing judicial officer's time by having multiple informations-to-obtain. Multiple informations-to-obtain also create more work for the informant him- or herself.
While an issuing judge or justice should cut the informant a certain amount of slack in relation to the level of attention to detail in informations-to-obtain that are drafted in urgency, a higher standard is expected when there is no such urgency. The events complained of here took place more than fifteen months ago. However, there was a certain lack of attention to detail at various spots. For example:
a. There are two paragraphs on page 4 that are largely redundant.
b. I cannot describe those two paragraphs by paragraph number because many of the paragraphs do not have paragraph numbers. This makes future review of warrants more awkward. Many of the paragraphs do have paragraph numbers, although I note that at one point the numbering goes from paragraph 53 to paragraph 1.
c. There are various spelling mistakes, including alternate spellings of one officer's name. I do not hang anything on that fact since everyone who has drafted a document of any length will have trouble capturing every error and I suspect there may very well be typographical errors in this endorsement. However some obvious errors should have been caught: in my experience, when I type "GROUNDS TO BELIEVE THE DEIGNATED OFFENCE HAS BEEN COMMITED" in 18 point capitals, my computer very unsubtly underlines the words "DEIGNATED" and "COMMITED" to tell the reader of the electronic version that a correction is in order.
The draft warrants did not include proposed conditions for execution to mirror what the informant sets out as his proposed conditions in the information-to-obtain. I typed them out myself since the most useful course I have ever taken, namely my Grade 10 typing class, meant it was easier to do it myself and get the warrant over and done with, rather than sending it back and having to deal with the application again in the future, but it is not my job.
Urgency?
It is customary for applications for warrants to be accompanied by a cover sheet that sets out tombstone information relating to the application and informant, including any details about the urgency of the application, whether a sealing order is required and so on. No such cover sheet accompanied this application.
I can perhaps discern that there is some urgency to the request because it was presented at the end of the day on Thursday, 27 November, 2014 and the draft warrant asks for an execution period beginning on the following Monday, 1 December, 2014. Any such urgency is peculiar. These events took place more than fifteen months ago. The Centre of Forensic Sciences report on its findings concerning the DNA materials submitted to it was completed on 7 November, 2013. The application was not presented to the Crown (see below) until more than fourteen months after the events, i.e. a month before it landed on my desk. One might wonder if, considering how much time has passed, the case is coming uncomfortably close to trial without the defendants' DNA having been obtained for comparison. Considering the nastiness of the attack, the victims deserve greater attention to detail.
Crown Review and Endorsement
The applications came to me with endorsements by an Assistant Crown Attorney. (I have chosen not to name either the informant or the Assistant Crown because, to a certain extent the issues I complain of in this endorsement are not unique to the present applications, although I stress that I often see better drafted materials). The Crown's endorsement presumably reflects a search warrant protocol issued by the court several years ago to the effect that applications for warrants and orders that are directed to provincial judges must be reviewed by a Crown before being submitted. (Although I understand the federal and provincial prosecution services are in agreement with the practice of Crown review, I read "must" in that protocol to mean "should" since the superimposition of a mandatory Crown-review requirement on top of any of the Criminal Code criteria for issuing various orders would be an excess of jurisdiction by the issuing judge.) The idea, however, i.e. that Crown review will result in a better quality product and greater protect the public interest when the police seek to impinge on a person's reasonable expectation of privacy, is at least theoretically sound, although experience suggests that it does not always lead to the results sought to be achieved by the protocol.
The wording of these Crown endorsements, however, has always struck me as peculiar. In the present case, the Assistant Crown says that he has "viewed" the application. Other formats I have seen say that the Crown has "endorsed the application" as to something and something, the precise words of which now escape me, but which conveyed clearly to me that I should place no real reliance on Crown review because of the waffle-words of "something and something". In the present case, I do not know what "viewed" means. Does it mean "read"? Does it mean reviewed? Does it mean "approved"? I could honestly say that I had "viewed" the applications one second after they landed on my desk at the end of the day on Thursday? I am virtually certain that my terriers "viewed" the applications over the course of the weekend. I am not sure that any of those various uses of the word "viewed" (the Crown's, mine or my dogs') conveys anything helpful to anyone. I am, however, reasonably certain that the highly ambiguous word "viewed" reflects at best a cursory review of the material submitted to me. Presumably a more detailed review would have disclosed (a) that there were no conditions expressed in the draft warrants; (b) that there was only a single copy of each of the draft warrants attached to the material; (c) that two informations-to-obtain were being submitted when one would make a lot more sense and involve less time for everyone involved; (d) that in one of the two applications Tab 3 was empty (its contents were at Tab 4 and Tab 4's contents were at Tab 5 and what was supposed to be Tab 5 was actually tucked in at the end of Tab 1).
I do not expect any information to obtain to satisfy the exacting standards that my Grade 13 English teacher would have imposed. (I have personal experience with failing to live up to that standard.) However, it is incumbent on an informant to be familiar with the legal, procedural and drafting requirements for the issuance of orders and warrants and to pay attention to detail. If Crown review of applications to be presented before judges is to be anything more than a veneer, then the wording of the endorsement and the reality underpinning that wording must be substantially more reassuring than the word "viewed".
F. O'Donnell, J.