



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Saint, 2017 ONCA 491

DATE: 20170614

DOCKET: C61204

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Michael Saint

Appellant

Samuel Walker and Matthew R. Gourlay, for the appellant

Amanda Hauk and Bradley Reitz, for the respondent

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.

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 appellants 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 appellants
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 persons 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 appellants 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 appellants 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 appellants 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 appellants reading of at any time in
Malik
is not consistent with this Courts 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 appellants 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: JS JUN 14 2017

B.W. Miller J.A.

I agree. Janet
    Simmons J.A.

I agree. K. van
    Rensburg J.A.


