Errors on Search Warrants Even After All these Years

The Face of a Warrant

The face of the warrant is the document that empowers police to search a particular location for particular evidence.

Re Times Square Book Store and the Queen, 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503;

R. v. Parent, 1989 CanLII 217 (YK CA), 47 C.C.C. (3d) 385;

R. v. Ricciardi, 2017 ONSC 2788 (CanLII);

R. v. Merritt, 2017 ONSC 80 (CanLII). 

It is vitally important that search warrants are clear on their face. Clarity on the face of a warrant ensures that police officers know the scope of the judicial authorization. Officers must be guided in the execution of the search warrant by the parameters imposed by the issuing justice. If the warrant is not clear on its face, no such guidance can be obtained.

R. v Nguyen, 2017 ONSC 1341 (CanLII),

The Interplay between the Face of a Warrant and the ITO

The section of the warrant document known as the “Information to Obtain” provides an issuing justice the grounds to either grant or deny the police the right to search the location described on the face of the warrant for certain evidence.  However, the ITO is not part of the warrant that a searching officer is expected to examine.  Instead, the searching officer is only required to familiarize themselves with the face of the warrant in order to understand the parameters of the search. 

As a result of this interplay between the face of the warrant and the ITO, the face of the warrant is expected to satisfy what is known as the "fellow officer" test -- that is, would a fellow officer be able to understand the items sought and the location to be searched as a result of reviewing the face of the warrant. 

R. v Townsend, 2017 ONSC 3435 (CanLII), at para. 53;

R. v. Raferty, 2012 ONSC 703 (CanLII) at para 103.

Form

Search warrants issued under section 487 should be set out as per Form 5 of the Criminal Code. 

It is standard practice for police to include in an application for a warrant a draft search warrant in Form 5 of the Criminal Code, which the justice will endorse if the statutory requirements for the warrant’s issuance are met. 

Thus, it is typically the police who draft search warrants.

Branton Error

In order to be constitutionally-compliant, a search generally requires prior judicial authorization predicated on a reasonably grounded belief (which, on a spectrum of proof is higher than a suspicion) that an offence has been committed and that there is evidence to be found at the place of the proposed search.

Section 487(1)(a) of the Criminal Code, however, allows for searches where the thing searched for is in respect of a federal offence that has been or is suspected to have been committed. 

However, this provision can meet the requirement of reasonable grounds to believe that  an offence has been committed and that evidence of an offence will be found at the place of the proposed search, if it is interpreted somewhat restrictively.

487(1)(a) deals with search warrants to obtain materials that form the subject matter of the offence. Section 487(1)(a) requires the issuing justice to be satisfied on reasonable grounds that the things searched for exist in the place specified.  If those things are, in and of themselves illegal, then the belief that the things are there is also a belief, on reasonable grounds, that an offence is being committed.

R. v. Chabinka, 2009 ONCJ 175 (CanLII), at para. 42-44.

This interpretation appears to make surplusage of the phrase "or is suspected", requiring it to be read down.  This may or may not find favour at the higher courts.  Thus, my current view is that (a) may be unconstitutional, and resort to it should be avoided where possible.

Section 487(c) allows for searches for things intended to be used for the purpose of committing an offence.

More often circumstances will not allow police to resort to (a) or (c), and police will apply for the warrant under section 487(1)(b) (Criminal Code).  

Section 487(1)(b) deals with warrants to obtain things that could afford evidence of a crime but are not themselves illegal.  Searches are limited to "evidence with respect to the commission of the offence" not the "suspected or intended commission of an offence".  

Where the ITO does not support the issuance of the warrant under 487(1)(a) or (c), and where the warrant nevertheless authorizes a search for evidence of a suspected or intended offence, the warrant is invalid on its face as it exceeds the authority prescribed in section 487of the Criminal Code. 

R. v. Branton (2001), 2001 CanLII 8535 (ON CA).

The warrant will authorize a type of search which exceeds the scope of the ITO.

This type of error is known as a Branton error, after the 2001 case.  The error affects the ambit of the search and can lead to unauthorized items being seized. 

Here is an example of a Branton error on a warrant:

WHEREAS it appears on the information of Constable Jack Sprat that there are reasonable grounds to believe that there are in [dwelling house, building, receptacle or place] herein called the premises, certain things namely [x] that being sought as evidence in respect to the commission, suspected commission or intended commission of an offence against [Criminal Code or other Act of Parliament]...

Remarkably, Branton errors still appear in warrants today (at least occasionally), seventeen years after R. v. Branton was decided, likely because authorities still sometimes prepare warrants using an outmoded version of Form 5 (Criminal Code) that carries the error. 

Peel Regional Police switched from the error-carrying Form 5 in March of 2017.  Many other police services have yet to make the change and thus continue to draft warrants that are facially invalid. [FN]

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca  (All rights reserved to author).

[FN] Whether the Branton wording error can be severed from the warrant (thus curing the facial validity defect) remains an open question, in my opinion.  As of the date of writing, there is no appellate decision that has dealt directly with that issue.

Criminal Code.

Information for search warrant

487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, [Emphasis mine].

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

(c.1) any offence-related property,

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d) to search the building, receptacle or place for any such thing and to seize it, and

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

Form

487(3) A search warrant issued under this section may be in the form set out as Form 5 in Part XXVIII, varied to suit the case.