Officers need to pay attention to detail on the face of their search warrants or risk possible invalidation on review.
By Mike Novakowski
In R. v. Campbell, 2018 NSCA 42, a police officer prepared a warrant to search a home with the time in which the warrant could be executed, along with its accompanying ITO, and submitted it through the tele-warrant procedures.
A justice of the peace authorized the search warrant. On its face, the justice directed, “This warrant may be executed between the hours of 6 p.m. on the 7th day of May, 2016, and 9 p.m. on the 7th day of January, 2016.” Police executed the warrant and Campbell was charged with unlawfully producing cannabis, two counts of possessing a firearm while prohibited, and unsafe storage of a firearm.
In Nova Scotia Provincial Court, Campbell argued the warrant was fundamentally flawed on its face because of its date range. Since the warrant was invalid, he submitted, the search constituted a breach of his s. 8 Charter right to be secure against unreasonable search and seizure. The judge agreed, finding the error on the face of the warrant was more than a mere typographical error. In the judge’s opinion, both the justice of the peace and the police were negligent.
She found the issuing justice or the executing officers, with a minimum of care and attention, could have noted the facial error. The warrant was found to be invalid and the evidence excluded under s. 24(2) of the Charter. Campbell was acquitted of all charges.
The Crown challenged the trial judge’s ruling before the Nova Scotia Court of Appeal, arguing the erroneous and factually impossible time for the warrant’s execution did not render it invalid. Rather than requiring the warrant only need meet the reasonableness standard (authorized by law, based on reasonable grounds and conducted in a reasonable manner), the Crown contended the trial judge required a standard of facial perfection. The Crown maintained that the error was a typographical mistake that did not invalidate the warrant, nor render the search of the home unreasonable. The Crown also asserted that the trial judge erred by injecting the common-law concept of negligence into the reasonableness analysis. The warrant, as the Crown claimed, was presumptively valid and therefore the trial judge erred in quashing it.
Search warrant validity?
The Court of Appeal noted “the time frame for execution specified in the warrant is an impossibility and a clear error.” It also concluded that the trial judge did not require perfection from the police nor improperly consider the presence of negligence.
First, the trial judge was aware that some errors on the face of a warrant could be mere typographical and trivial in nature and would not impact the warrant’s presumptive validity while other errors could be far from harmless and invalidate a warrant. Second, negligence is not confined to tort claims and can be used in determining the nature of an error on the face of a warrant. Courts often use terms such as “negligence” and “carelessness” when assessing police conduct, i.e. whether the police have grounds for a warrant or when undertaking a s. 24(2) analysis.
In this case, it was not an error for the trial judge to conclude that the failure of the police to notice the obvious error on the face of the warrant was negligent. There is an expectation that executing officers should assure themselves they are about to act in accordance with the terms of a warrant. Thus, they need to read it.
“Here, the warrant was not ‘regular’ on its face — it contained an obvious error with respect to the time frame for execution,” said Justice Bourgeois for the Appeal Court. “It was well within the purview of the trial judge to infer either that the obvious error was not noted by police, or conversely, they acted on it notwithstanding the error. No evidence was offered to explain why or how the police acted in the face of an obvious error on the warrant.”
As for the admissibility of the evidence under s. 24(2), the Court of Appeal found the trial judge considered appropriate factors and did not err in excluding it. The Crown’s appeal was dismissed and Campbell’s acquittals were upheld.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.