Ontario Criminal

Charter of Rights

No hint of defiance on officer’s part, rather ignorance and inadvertence

Accused appealed convictions for offences related to seizures of drugs and money. Officer swore in information to obtain (“ITO”) search warrant that there was no Justice of the Peace available at time that telewarrant was obtained, but candidly admitted that he did not take any steps to ascertain truth of statement, nor did he know it to be true at time. Officer’s statement turned out to have been true as matter of fact. This was officer’s first ITO, he had not received training in drafting it, and he did not know statutory requirements for ITO or telewarrant. Draft ITO was reviewed by officer’s supervisor for spelling and grammar only. Trial judge accepted officer’s evidence that it made sense to carry out warrant immediately since accused was in custody and there was no Justice of the Peace available until next day. Trial judge concluded that there had been no breach of Charter and that request for telewarrant was reasonable. Accused argued that trial judge erred in failing to exclude evidence, as ITO was insufficient and false, and that execution of search warrant constituted unreasonable search and seizure contrary to s. 8 Charter rights. Appeal dismissed. Officer’s approach to his task was somewhat casual, and his lack of knowledge and training was troubling. Context provided circumstantial guarantees that statement that Justice of the Peace was not available was true in fact. There was nothing in context to suggest to officer that statement might not be true, as it was later in evening. Assuming without deciding that accused’s argument had merit, evidence would not have been excluded under s. 24(2) of Charter in any event. Had officer made simple inquiry about availability of Justice of the Peace, he would have been assured that none was available and that telewarrant was in fact necessary. Search would have been inevitable. There was no hint of defiance on officer’s part, rather it was instance of ignorance and inadvertence. Bulk of drugs were found in stash house, in which accused’s expectation of privacy would not have been high. Evidence of drugs and money obtained as result of execution of telewarrant was highly reliable. There was no Charter reason to exclude evidence obtained on execution of telewarrant.

R. v. Lacelle (Jun. 12, 2013, Ont. C.A., R.A. Blair J.A., Alexandra Hoy J.A., and P. Lauwers J.A., File No. CA C54433) 107 W.C.B. (2d) 455.

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