Romaniuk's
Search Warrants Considered

'IMPRACTICABLE TO ATTEND IN PERSON' ISSUES

Availability Enquiries

• The applicant shall state why it is impracticable to make an in person application before a judge or justice of the peace, and what efforts they have made to do so, in the first paragraph of the ITO s. 487.1(1) CC. A failure to comply with this requirement renders the search warrant invalid as s. 2 CC defines a "Justice" as meaning and including both a justice of the peace or a provincial court judge
  [Adansi, R.; OCJ, Breland, V.A.; ABPC, Brick; ABQB, Chung, P.L.; BCPC, Le, T.T.; BCCA, {para 26}, Petkau A.G.; ABQB, Sattelberger, M.W.; (1995) 106 Man. R. (2d) 252; MQB, and Smith, L.K.; BCCA].
  Contra: The word "Judge" does not have to be mentioned. {Without reference to many of the cases cited above}
  [Nguyen, Thi T.; BCPC].
• "Here the police constable made no inquiry whatever as to the availability of a JJP at the Grand Forks Courthouse. He made no effort to explain, in the alternative, why it was impracticable to travel to Rossland, Castlegar or Nelson to appear in person before a JJP, who might have been present in one of those locations." {para 26} "In the absence of any effort to actually confirm the unavailability of a JJP ..." the ITO was invalid, as was the Search Warrant {para 27}. The evidence obtained was excluded
  [Ling, M.D.; BCCA, app dism'd; SCC].
  In effect this case overrules:
  [Burnett, D.S.; BCPC, Lucier, D.J.; BCPC, Martens, E.M.; BCSC and Vu, T.V.; BCPC].
• "When I combine: the reasoning and precedent of the R. v. Ling case (supra) and the other authorities referred to; that Cpl. Michaud did not make any specific inquiries to ascertain whether a Richmond Judge or Justice was then “on call” or at what time one would become available; that Cpl. Michaud did not consider checking if the Vancouver Courthouse at 222 Main Street had a Justice or Judge “on call” or arriving soon; that Cpl. Michaud did not consider that it would have been practical to drive the one hour (he said) to the Justice Centre in Burnaby and radio or fax the Warrants back to the Detachment as soon as they were granted by the Justice (in person). The conclusion that I have come to, is that the Crown have not satisfied me that “objectively” it was “impractical”, for Cpl. Michaud to have applied for the Search Warrants in person {para 55}."
  "This particular breach was not due to deliberate bad faith or callous disregard by the police, in not following the legal requirements of s. 487 of the Criminal Code. However, the breach is not simply a technical and unimportant one, it is a significant omission {para 58}
  [Ho, T.L.; BCPC]."
• "On it’s face the ITO complied with s. 487.1 of the Code. However, the evidence is that Cst. Vallance made no enquiry if a justice was available in Chilliwack. Cst. Vallance immediately sent the ITO to the JJP Centre without making any enquiry as to whether or not it was impracticable for him to appear personally before a justice in Chilliwack. It was only after he had submitted the ITO that he made that enquiry {para 97}." The warrant was quashed as a result
  [Nguyen, M.T.; BCPC].
• "Nevertheless gross carelessness or a casual approach constituting a lack of good faith in seeking a telewarrant for a search of a residence in this case manifests a lack of training necessary to perform the officer’s duty and it cannot be condoned. Although there may have been some confusion at the time as to the proper procedure to follow it was the duty of the force to provide the necessary training to its officers. Certainly, any confusion would not include making factual statements in an I.T.O. that had not been verified {para 22}
  [Koprowski, I.B.; BCPC]."
  However, where the Courts issue unclear directions as to the steps that applicants should take in this regard, in this situation: "there was some uncertainty at the time in Surrey as to the designation of a justice {para 39}." The lack of attention to this detail was understandable and the warrant was allowed to stand
  [Pech, N.; BCCA]. Also review the obiter comments in [MacDuff, J.W.: {paras 16 and 17}; BCCA].
• "While the Criminal Code does not use the word "urgency" but rather adopts the phrase "impracticable to appear personally" there is no doubt in my mind that urgency is an important component of the expedited procedure surrounding issuance of a telewarrant. Furthermore the section requires the peace officer to set out the grounds susceptible of dispensing him from appearing personally. It follows that the "justice" has a duty to satisfy himself that these grounds are sufficient {para 20}
  [Presse ltée (La); QSC]."
• "In my view, the existence of urgent or exigent circumstances is not a prerequisite for an application for a warrant by means of telecommunication. The officer is not required to delay applying for a warrant until a justice of the peace is on duty at regular business hours {para 18}
  [Pavic, S.; [2010] O.J. No. 5015, 2010 ONSC 6044; OSCJ]." Also review [Robinson, T.; {paras 23-25}; OSCJ].
• Applicants have a positive duty to comply with this requirement. "In my view, his failure to inquire as to whether the application could reasonably be heard on an in-person basis, in and of itself renders the warrant invalid. It should not have been issued. In fact, the policy in force at that time was that judges would not do warrants, but that as a first option, judicial justices of the peace, in person, would do them. ... the judicial justice of the peace ought to have been alive to the issue, particularly when no mention of an inquiry is seen in the information to obtain
  [Addario-Berry, C.G.; BCPC]."
  Also see:
  [Aeichele, A.D.; BCPC, Christensen, C.L.; BCPC, Farewell, R.K.; BCSC, aff'd; BCCA, Huber, L.G.; BCPC, Ling, M.D.; BCCA, appeal denied, Ling, M.D.; SCC, Nguyen, T.P.; BCPC and Ong, D.P.L.; BCPC].
• "Common sense suggests that if a form is used, it should be properly filled out, especially when the form itself states that certain details are to be inserted in the blanks." {When applying for an intrusive warrant}
  [Genest, M.; SCC].
• The BCCA has defined impracticable as:

  "It is reasonable to conclude that 'impracticable' means something less than impossible and imports a large measure of practicality, what may be termed common sense"

  in Erickson, D.P..
  Further, and citing, with approval {para 12}, the trial judge "The question here is one of impracticality, not impossibility {para 7}
  [Salmon; BCCA", app dism'd; SCC]."
• "...impractical connotes a degree of reason and involves some regard for practice
  [Pearce; (1988), 13 M.V.R. (2d) 116, 56 Man.R. (2d) 77, [1988] M.J. No. 574, 6 W.C.B. (2d) 302; MQB]."
• When there is a possibility that there might be a judge available the enquiry must be made {emphasis is the author's}
  [Koprowski, I.B.; {para 13}; BCPC].
• The absence of any mention of attempting to see if there was any judge or justice available in the ITO can be recovered with the applicant's testimony at the amplification stage of the voir dire that she did, in fact do so {para 83} [Leung, Y.W.; BCPC].
  Further the failure of defence counsel to cross-examine the affiant in this regard is fatal. "In these circumstances, there is no reason to believe that his statement that a Justice of the Peace was unavailable was made without believing it to be true and in good faith {para 34}. Bald assertions that the statement: "there is no intake Justice currently available in the Region of Halton at the time of this application” in the ITO do not suffice to meet the requirements of s. 487.1 (1) CC at trial are not enough
  [Luong, D.S.; OSCJ].
• "Furthermore, the Judicial Justice of the Peace who signed the telewarrant would be aware of the statutory preconditions of telewarrants and would be obliged to refuse the application if a justice of the peace had in fact been available {para 18}
  [Nguyen, Q.H.; BCCA]."

Availability Enquiries
Other

• Exigent searches were allowable in the following circumstances: "He testified that he would not have been able to reach the office of the Justice of the Peace by the time it closed at 4:00 p.m. When asked about obtaining a telewarrant, he testified that it takes two to eight hours, depending on how busy the telewarrant office is, to get a telewarrant once the request is faxed. I find, on this evidence, that it would have been the following day before a search warrant could have been obtained and that it would not have been reasonable for the police to wait this length of time before acting {para 76}
  [Brefo, B.; OSCJ]."
• "However, it would not seem to be a long-term solution to have all warrants obtained in this manner, since it precludes the opportunity for the issuing Judge or Justice to examine the officer on whose information the warrant is being sought, in person, and to raise whatever questions may be considered appropriate. Although a telewarrant would not preclude such an exchange it obviously would make it less practicable and less likely to occur. The serious invasion of the privacy of the citizenry that arises from the execution of a search warrant, necessitates that before granting such a warrant, it be done after careful consideration and, where necessary, questioning of the officer seeking this authority. This is particularly so in view of the fact that there is no one appearing to question or oppose the issuance of the warrant {para 31}
  [Hill, R.J.; NSSC]."

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