Kalina Tejpal Lawyers



When is a Search Warrant Valid?

18 February, 2017

Photo of Lawyer Hans 'John' KalinaBy Hans 'John' Kalina


When is a Search Warrant Valid?

In R. v. Gabaret, 2017 ONCA 139 , released yesterday, the Court of Appeal for Ontario reiterated the preconditions for a valid search warrant.

By way of background, in order for the police to obtain a search warrant, the officer must swear an affidavit titled as an “information to obtain” often referred to as an “ITO”. The ITO must contain sufficient (true) details to support the issuance of a search warrant by either a Judge or a Justice of the Peace. False or misleading facts that are material in the ITO that lead to the issuance of a warrant may invalidate the search warrant which may lead to the exclusion of the evidence found by the police when they executed the warrant.

The facts as related by the Court are:

  • [1] The appellant, self-represented at trial, challenged the admissibility of evidence seized from his residence and his vehicle pursuant to search warrants. …
  • [3] In the course of an investigation into the activities of an alleged cocaine trafficker (not the appellant), the police learned that two officers, PC Tara Kramp and PC Basil Odei, were likely implicated in illicit drug dealing. The appellant’s former business partner, Nelson DaSilva, also appeared to be implicated. The police intercepted a text message forwarded by Odei to Kramp that appeared to set up a drug transaction for controlled substances, specifically steroids and GHB, at one of the stores owned by the appellant. The ITO alleged that the appellant was the person who had initiated that text message. It was conceded by the Crown at trial that the appellant had not sent the text message, and that it had been sent instead by an employee who worked at one of his stores.
  • [4] The only other evidence in the ITO relating to the appellant was that two years earlier there had been a break-in at one of his stores. When the police investigated they found white powder believed to be cocaine on the surfaces of two digital scales, along with empty “dime bags” and a debt lists. …
  • [5] The appellant resided with his wife and child in the basement of the home owned by his in-laws. Knowing that the appellant was not present at the residence at the time, and having no information that he had firearms or other weapons at his home, the police executed a “dynamic” entry. A tactical squad of eleven officers wearing goggles, helmets and balaclavas used a battering ram to bash in the door. The appellant’s father-in-law was handcuffed. He asked repeatedly to see the search warrant, and the trial judge accepted his evidence over that of the police officers in finding that he was never shown a copy of the warrant, contrary to s. 29(1) of the Criminal Code.
  • [6] The search was not restricted to the appellant’s basement apartment. The entire house was searched.
  • [7] The police found a quantity of cocaine at the appellant’s residence, and then obtained a warrant to search his car, where they found a variety of controlled drugs, drug paraphernalia, and items associated with drug trafficking. Search warrants for the appellant’s two stores were also obtained and executed. No drugs or related items were found at the stores.
  • [8] In our view, the trial judge misapprehended the evidence in relation to the text message. He failed to appreciate that the text message formed the basis of the case made out in the ITO for a search warrant of the appellant’s residence. The trial judge characterized the appellant’s position as being that the police officer who swore the ITO had failed to specify clearly why he believed the third-party text message had originated from the appellant. With respect, that fails to recognize the significance of the error as to the originator of the text. The officer’s mistaken belief that the appellant had sent the text message setting up a drug transaction was the central fact upon which he relied when he stated that there were reasonable grounds to believe that there was a quantity of controlled substance at the appellant’s residence.
  • [10] The evidence relating to the appellant’s alleged cocaine trafficking was dated, imprecise and inconclusive, and insufficient to sustain the warrant.
  • [11] The search of the appellant’s two stores was justified by the ITO, as the text message indicated that a drug transaction was planned to take place at one of the stores. However, in our view, the ITO failed to provide a basis to justify a search of his residence. There is no suggestion in the ITO that the appellant kept drugs in his residence. No surveillance was conducted of the residence. The suggestion advanced in oral argument on this appeal that the burglary two years earlier at one of the appellant’s stores might have prompted him to keep drugs at his residence is entirely speculative, and was not advanced in the ITO or at trial. The statement in the ITO that drug dealers often use “stash houses” to store their drugs was made in relation to Nelson DaSilva and not the appellant.
  • [12] We also agree with the appellant’s submission that the search warrant was overbroad. It authorized the search and seizure of a long list of items, including: banking and financial documents; telephone records; photographs; documents relating to the occupancy or ownership of the place; and any data stored in electronic devices such as computers, mobile phones, blackberry devices, or any other devices with memory capable of storing data. Justification for the search of the appellant’s car was based entirely on the fruits of the unlawful search of his residence.
  • [19] Without the evidence seized pursuant to the search warrants, there is no basis for these convictions. Accordingly, the appeal is allowed, the convictions are set aside, and acquittals are entered.

This case highlights the care with which police must not only prepare the ITO but also the care that is required in the execution of the warrant. The egregious manner in which the police executed the warrant by unnecessarily using a battering ram and handcuffing the occupant contributed to the Court’s decision to exclude the evidence on appeal.

This case also underscores the reason to have a skilled lawyer prepare your criminal defense especially in serious and complex criminal trials that involve a violation of an accused person’s Charter of Rights and Freedoms. The lawyers at Kalina & Tejpal have the skills and expertise to fearlessly defend your rights. In this case, the accused was self-represented at trial, but wisely chose to be represented on appeal.

The lawyers at Kalina & Tejpal can be reached at (416) 900-6999 or mail@lawyer4u.ca

Tags: criminal defence, criminal law, expert evidence, information, legal advice

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