Justice’s assistance to investigator in preparing ITO did not cross the line
By Mike Novakowski
The Supreme Court of Canada has upheld an appellate court’s ruling that a justice’s request to a police officer preparing an Information to Obtain (ITO) for further information about the impracticability of appearing in person did not cause the justice to lose his independence or impartiality in authorizing the search warrant.
By Mike Novakowski
In R. v. Clark, 2017 SCC 3 a police officer completed an ITO at 2:00 am for a telewarrant application to investigate theft of electricity at a residence. The officer was seeking a warrant to search “by day.” In the application the officer stated he was using the telewarrant procedure as it was impracticable for him to appear personally before a justice because he was working a night shift in the early morning hours and the courthouse was presently closed. After leaving a message through the Justice Centre phone line, the officer received a call from a Judicial Justice of the Peace (JJP) at 2:10 am asking him why the application could not be made in person during the day at the courthouse. He provided several points and the JJP suggested those reasons be set out in the ITO. The officer revised his ITO and he faxed the completed application to the JJP at 2:35 am. At 3:07 am the officer received a signed telewarrant authorizing him (and other officers) to enter the residence between 2:00 pm and 6:00 pm to search for evidence of electricity theft. When the police executed the warrant, they not only found an electrical by-pass but also a large marijuana grow operation. The police seized 707 marijuana plants, grow-operation equipment, evidence of a bypass, $500 cash and two gold rings believed to be offence-related property. Clark was found inside the home at the time the warrant was executed. He was charged with producing marijuana, possessing marijuana for the purpose of trafficking, and theft of electricity.
Clark suggested at his trial in BC Supreme Court that the warrant was invalid, in part, because the JJP had acted inappropriately by providing advice to the officer in the preparation of the ITO. The judge agreed, finding the JJP was not acting judicially when he guided the officer in the telewarrant application and that he was predisposed to grant the application he had not yet seen. The judge excised the paragraph from the ITO that addressed the impracticability of an in-person application. Without this, the impracticability requirement of the telewarrant provision had not been satisfied. The warrant was quashed and the search of the residence amounted to a warrantless one. Clark’s s. 8 rights had been breached and the evidence of the drugs and other items was excluded under s. 24(2). Clark was acquitted of all charges.
The Crown appealed the court’s ruling to the BC Court of Appeal suggesting, in part, that the trial judge erred in finding that the JJP gave improper assistance to the officer submitting the telewarrant.
Judicial Independence & Impartiality
Justice Frankel, speaking for the unanimous Court of Appeal, found the trial judge’s inference that the JJP was predisposed to grant the warrant even before he saw it was neither reasonable nor logical. In some cases, “it is permissible for a judicial justice to provide some advice and/or direction to an officer applying for a warrant,” said Frankel. “The inquiry [the JJP] made of [the officer]—in effect, ‘why can’t this wait until normal office hours’—is something any judicial justice or judge likely would ask at that time of day. … He did no more than advise [the officer] fully set out his reasons for using the telewarrant procedure.”
Clark suggested that the impracticability requirement of appearing in person was not satisfied even if the paragraph explaining why the officer did not appear was considered. In his opinion, there was no urgency for obtaining a warrant in the early morning hours and there was no explanation from the officer why he could not wait until the courthouse opened later that day. But Frankel rejected this submission. The ITO need only support a basis why an in-person application was not practicable. It was not necessary to also show that urgency was a factor such that there was an immediate need for a warrant:
The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week. Whether the application is made in-person or by fax the reasonable grounds standard must be met before a warrant can be issued. The impracticability requirement is concerned with whether it is practicable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated. [para. 66]
In this case, the paragraph addressing impracticability could have satisfied a JJP that the ITO disclosed “reasonable grounds for dispensing with an information presented personally and in writing” as would the statement printed on the form that said the local courthouse was presently closed. BC’s top court concluded the telewarrant was properly issued. The Crown’s appeal was allowed, Clark’s acquittals were set aside and a new trial was ordered.
Clark then challenged the BC Court of Appeal’s ruling to the Supreme Court of Canada suggesting, among other things, that the JJP lost his independence and impartiality by providing guidance to the investigating officer, and that it wasn’t impracticable for the officer to appear in person. However, a unanimous Supreme Court sitting all nine justices, in a very short judgment, dismissed Clark’s appeal substantially for the reasons provided by the BC Court of Appeal. Thus, the BC Court of Appeal decision reversing the trial judge and ordering a new trial stood. Editor’s note: Facts taken from R. v. Clark, 2015 BCCA 488.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at: email@example.com.