Search & Seizure: Failure of Police to Report Seizure Results in Constitutional Violation
In R. v. Butters, 2014 ONCJ 228 (CanLII),
aff’d 2015 ONCA 783 (CanLII), Justice Paciocco (now of the Court of Appeal
for Ontario) considered the circumstances in which one warrantless search and
two warranted searches occurred. The officer filed a report for the warranted
searches but failed to file a return for the warrantless search, contrary to s.
489.1 of the Criminal Code.
The judge concluded that he was not bound
by the obiter remarks in Re Church of Scientology and disagreed
with them (para. 53). After examining dictionary definitions, he concluded
that seizure was an ongoing state of affairs so long as someone was deprived of
something.
In his view, the purposive interpretation
favoured in Charter interpretation supported that s. 8 should be
“interpreted to embrace the retention of seized goods” (para. 54). He
concluded, not that the search was unlawful, but “[i]f the continuation of a
seizure is not lawful, the seizure becomes unreasonable contrary to section 8
of the Charter” (para. 55).
He concluded that the failure to file a
report to a justice, contrary to s. 489.1 was unlawful and constituted a
breach of Mr. Butters’ s. 8 rights. After considering all of the
circumstances, he did not exclude the evidence under s. 24(2).
See also R. v. Backhouse (2005), 2005 CanLII
4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 113, 115: Section 489.1(1)
applies to both warrantless common law seizures and seizures pursuant to a
warrant:
In Garcia-Machado,
2015 ONCA 569 (CanLII), the Ontario
Court of Appeal concluded that the failure to comply with the requirements of
s. 489.1(1) to make a report to a justice as soon as practicable [the
police took more than three months after the seizure of blood and hospital
records to report] rendered the continuing detention of a seized item
unreasonable and contrary to s. 8 of the Charter.
The Court concluded at para. 45 that
a person may have a diminished reasonable expectation of privacy after a
lawful, initial police seizure and that in particular cases there may be
virtually no impact on that expectation.
These will be important factors in the analysis under s. 24(2) of the Charter.
CRIMINAL CODE
Restitution of property or report by peace officer
489.1 (1) Subject to this
or any other Act of Parliament, where a peace officer has seized anything under
a warrant issued under this Act or under section 487.11 or 489 or otherwise in
the execution of duties under this or any other Act of Parliament, the peace
officer shall, as soon as is practicable,
(a) where the
peace officer is satisfied,
(i) that there is
no dispute as to who is lawfully entitled to possession of the thing seized,
and
(ii) that
the continued detention of the thing seized is not required for the
purposes of any
investigation or a preliminary inquiry, trial or other proceeding,
return the thing
seized, on being issued a receipt therefor, to the person lawfully entitled to
its possession and report to the justice who issued the warrant or some other
justice for the same territorial division or, if no warrant was issued, a
justice having jurisdiction in respect of the matter, that he has done so; or
(b) where the
peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),
(i) bring the
thing seized before the justice referred to in paragraph (a), or
(ii) report to
the justice that he has seized the thing and is detaining it or causing it to
be detained to be dealt with by the justice in accordance with subsection
490(1).
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