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 unreas...