



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jodoin, 2018 ONCA 638

DATE: 20180713

DOCKET: C62627

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marc Jodoin

Appellant

Colin Wood, for the appellant

Tanit Gilliam and Ruth McGuirl, for the respondent

Heard: June 25, 2018

On appeal from the
    convictions entered on January 26, 2016 by Justice S.K. Campbell of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant challenges his convictions for
    possession of drugs for the purpose of trafficking. He argues that the trial
    judge was wrong to dismiss his application under the

Canadian
    Charter of Rights and Freedoms

to exclude evidence found
    as a result of the execution of general warrants issued pursuant to s. 487.01
    of the
Criminal Code,

R.S.C.,
    1985, c. C-46
. Relying on
R. v. Telus
    Communications Co
.,

2013 SCC 16, [2013] 2 S.C.R. 3, he submits that the investigative
    technique employed using the general warrant could have equally been authorized
    under the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19 (
CDSA
). Section
    487.01(1)(c) provides that a general warrant is not available where there is
    another statutory provision that would provide for a warrant, authorization or
    order permitting the technique, procedure or device to be used or the thing to
    be done.

[2]

The relevant parts of the
CDSA
provide:

11(1) A justice who, on
ex parte
application,
    is satisfied by information on oath that there are reasonable grounds to
    believe that

(a) a controlled substance
in
    respect of which this Act has been contravened,



is in a place may, at
    any time, issue a warrant authorizing a peace officer, at any time, to search
    the place for any such controlled substanceand to seize it.

[3]

No issue is taken with the underlying factual
    findings made by the trial judge.

[4]

Police had information from several sources that
    the appellant was dealing in cocaine. They corroborated this information with
    surveillance showing frequent vehicle stops of short duration. They suspected
    that the appellant was using vacant commercial premises at 2116 Gladstone as a
    stash house. Although there was a sign on the premises for a business called
    Caboto Satellite, this did not appear to be an active business. There was no
    merchandise in the store and the telephone number for the business was not in
    service. The appellant attended sporadically at the business for short periods
    of time, and used a key to get in. An informant told police that the
    appellants partner in the drug business lived in residential premises above
    this commercial unit. The appellant lived elsewhere.

[5]

Police applied first for a sneak and peek
    warrant pursuant to s. 487.01, to confirm drugs were being stored at the stash
    house. That warrant is not challenged on appeal. They entered the commercial
    unit in the early morning hours and found a locked wooden box within an
    interior room. There was a safe inside the wooden box. Police found what they
    believed to be crystal methamphetamine, cocaine and marihuana in the wooden box
    and in the safe.

[6]

The investigating officers discussed whether they
    should next obtain a search warrant under the
CDSA
or a general warrant. They wanted not only to seize the drugs, but
    also to link the appellant to the drugs. They wanted to execute the warrant
    just after the appellant left the commercial unit so that they could establish
    this connection. Given the residence of the appellants partner above the
    commercial unit, they were concerned that he or others might destroy evidence
    if they saw the appellant being arrested. They reasoned that a
CDSA
warrant would not provide the time and flexibility a general warrant
    would provide. Since the appellants attendance at the unit was so sporadic and
    unpredictable, they thought a general warrant giving a seven day window for
    execution and conditional on the appellants presence at the unit was most
    appropriate. They were under the impression that
CDSA
warrants provided for shorter windows for execution. They also
    obtained a general warrant to search the vehicle used by the appellant and his
    home. They wanted to execute searches of all three locations simultaneously.

[7]

The Information to Obtain (ITO) set out the
    observations made of drugs in the commercial unit upon the execution of the sneak
    and peek warrant and the observations of the appellants frequent but brief and
    sporadic entries into the locked vacant commercial premises, as well as the results
    of continued surveillance. This provided an ample basis for the asserted belief
    that the appellant was actively engaged in drug trafficking and that execution
    of a general warrant at those premises would afford evidence of that activity,
    as would a warranted search of his vehicle and home.

[8]

The affiant set out in the ITO his reasons for
    believing that it was in the best interests of the administration of justice
    for the warrant to be issued, and his grounds for believing that no other
    statutory provisions permitted the proposed investigative procedure, stating: [t]his
    application requires that techniques be used to gather evidence as opposed to
    simple search and seizure.

[9]

The warrant was signed on February 22, 2012 and
    the officers set up surveillance at the commercial unit. It so happened that
    the appellant arrived there that same afternoon and was arrested a short
    distance away after he left the building. Significant amounts of crystal
    methamphetamine, cocaine, marihuana and other drug related materials were
    seized from the commercial unit, the appellants vehicle and his home.

Trial judges reasons

[10]

The trial judge concluded that the general
    warrant was properly issued pursuant to s. 487.01(1)(c) of the
Criminal
    Code
. It permitted the police to defer execution of the
    warrant until the condition of the appellants attendance at the commercial
    unit was fulfilled. He held that authorization for a prospective search, such
    as this, was not available pursuant to a conventional search warrant and
    dismissed the
Charter
challenge to the
    validity of the warrant.

Analysis

[11]

A general warrant is to be used sparingly as a
    warrant of limited resort so that it does not become an easy back door for
    other techniques that have more demanding pre-authorization requirements:
Telus
, at para. 56 (citation omitted).

[12]

We agree that a warrant to be executed in the
    future upon the occurrence of a specified contingency is not a procedure
    contemplated by the conventional search warrant. While a conventional search
    warrant could have been obtained here, on the basis that there were reasonable
    grounds to believe that prohibited drugs were likely to be found in the
    premises, this procedure might not have linked the drugs to the appellant. As
    noted above, s. 11 of the
CDSA
provides that
    where there are reasonable grounds to believe there has been a contravention of
    the law relating to controlled substances, and that a controlled substance is
    in a place, a warrant may issue to search that place and seize the substance.

[13]

As noted in
R. v. Brand
, 2008 BCCA 94,
229 C.C.C. (3d) 443, at paras. 50-51:

[T]here is nothing in the language of s.
    487.01(1)(c) that precludes a peace officer from obtaining a general warrant
    solely because he or she has sufficient information to obtain a search warrant.
    Resort to a search warrant is only precluded when judicial approval for the
    proposed technique, procedure or device or the doing of the thing is
    available under some other federal statutory provision.

That the police
    are in a position to obtain a search warrant does not prevent them for continuing
    to investigate using all other lawful means at their disposal. Having regard to
    the requirements of s. 487.01(1)(a), I expect that in many cases the
    information the police present in support of an application for a general
    warrant would also support an application for a search warrant. I see nothing
    wrong in utilizing a general warrant to obtain information with a view to
    gathering additional and possibly better evidence than that which could be
    seized immediately through the execution of a search warrant.

[14]

In
Telus
, the Supreme
    Court of Canada noted, at para. 71, that where police are confronted with the
    choice between a series of conventional warrants or an application for a
    general warrant, if they apply for a general warrant they must meet the stricter
    requirements of s. 487.01, which can only be issued by a judge, not a justice
    of the peace, and they must establish that it is in the best interests of the administration
    of justice to issue the general warrant.

[15]

The court noted further, at para. 72:

In other words,
    by dint of its more stringent requirements, the general warrant contains a
    disincentive to its everyday use. In
Ha
and
Brand
, where the only alternative was a series of conventional warrants,
    reliance on a general warrant did not provide the police with an easy way out
    from the rigours of a more demanding legislative authorization  the general
    warrant
was
the more demanding legislative
    authorization. Thus, in these cases, it is harder to see how the general
    warrant provision might be misused.

[16]

Unlike in
Telus
,
    here, there is no question of police evading stricter statutory requirements by
    seeking a general rather than a conventional warrant.

[17]

It would have been much easier for police to ask
    for a search warrant from a locally situated justice of the peace, rather than
    travel to Leamington, Ontario as they did in this case, to ask a judge for a
    general warrant and attempt to establish the more stringent requirements.

[18]

There is no statutory time limit for the
    execution of conventional search warrants, although it appears that the affiant
    here may have believed otherwise. When investigating drug related offences, the
    existence of reasonable grounds to believe that drugs are present immediately
    does not necessarily mean they will be present days later. Sometimes, a larger
    window for execution of a search warrant will be appropriate.

[19]

We agree that prospective execution of a search,
    based on a future contingency, together with the simultaneous execution of related
    searches are not contemplated by a conventional search warrant. The general
    warrant was properly issued in this case, where the investigative technique proposed
    was not simply to seize the drugs but to link them to the accused and where
    there is no issue of evasion of a more stringent statutory regime.

[20]

As indicated earlier, there was an ample basis
    for the issuing judge to conclude that the statutory elements required to
    obtain a general warrant were satisfied.

[21]

Accordingly, the appeal is dismissed.

David
    Watt J.A.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


