Ontario Criminal


Charter of Rights

SEARCH AND SEIZURE
Sufficient facts justified issuance of search warrants and production orders

Application by two accused to exclude evidence against them. Accused were charged with first degree murder of victim. Crown claimed that victim was first accused’s landlord and that first accused planned murder and he recruited second accused to carry it out in return for financial reward. Police arrested second accused within minutes of discovery of victim’s body. First accused was found at scene of murder and he was treated as material witness. He was later arrested at police station during interview with police. Just prior to his arrest he was being interviewed as witness. Police obtained search warrants for hotel room that second accused was staying at and for first accused’s home. At first accused’s home they found knife set that was missing knife, and missing knife was found in creek near first accused’s home. Missing knife contained victim’s blood and second accused’s DNA. Police seized several computers and other media devices. Other warrants and production orders were subsequently obtained as part of murder investigation. Police also seized victim’s eyeglasses which were found on garage floor of first accused’s home. Application dismissed. Sufficient facts were provided that justified issuance of search warrants and production orders. Use of telewarrant process did not violate accused individuals’ rights under s. 8 of Canadian Charter of Rights and Freedoms. Belief of officer, who resorted to this process because he did not think that justice of peace was available when documentation to apply for warrant was completed, was reasonable. Justice who signed telewarrant would have refused application if justice of peace was personally available to do so. There was sufficient basis provided in Information to Obtain (“ITO”) warrant to search first accused’s home. First accused failed to establish that ITO contained inaccurate information or material fact that was not disclosed. Affiant did not mislead issuing justice. First accused claimed that warrant for first accused’s home only allowed seizure and search of computers in home. This was irrelevant for police obtained multiple additional warrants to authorize search of computers. Police had basis to search first accused’s computers. First accused’s telephone subscriber information and fact that first accused held bank accounts at various institutions were properly provided to police. ITOs submitted in support of nine production orders that police obtained contained reasonable grounds to believe that documents or data that would be obtained would afford evidence respecting commission of offence. Warrant to search storage locker that was in name of first accused’s girlfriend was validly issued. Accused failed to show that warrants and production orders were invalid but even if they were, evidence obtained through them was admissible.

R. v. Nurse (Oct. 15, 2014, Ont. S.C.J., Coroza J., File No. CRIMJ(P) 339/13) 117 W.C.B. (2d) 133.

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