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POWERS OF SEARCH AND SEIZURE - Search warrants - Validity

Thursday, June 28, 2018 @ 7:46 AM  

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Appeal by the Crown from an order excluding evidence at the trial of the accused, Campbell. Police executed a search warrant at the accused's home leading to the seizure of firearms and drugs with related charges. The Information to Obtain (ITO) the warrant set out that police had responded to a report of a man walking down the road with a shotgun, observed the man entering a mini-home, and arrested him. An initial search of the property to ensure public and officer safety led to the discovery of a marijuana grow operation and an unsecured rifle. The officers left the residence and conducted surveillance while awaiting issuance of a telewarrant. The accused arrived, advised that he lived at the mini-home and was arrested. The warrant was approved. However, the warrant set out the time for its execution as between May 7, 2016 and January 7, 2016. The accused submitted that the error on the face of the warrant rendered it invalid. The parties accepted that the timeframe for execution was an impossibility and a clear error. The trial judge held that the error was a fundamental defect and that its execution in the face of that error constituted police negligence that rendered the warrant invalid. The search breached the accused's s. 8 Charter rights. The trial judge excluded the evidence seized pursuant to s. 24(2) of the Charter. Following the exclusion order, the Crown invited entry of an acquittal. The Crown appealed.

HELD: Appeal dismissed. The trial judge did not erroneously require a standard of facial perfection, as she was aware that a warrant could contain a typographical error which would not impact its presumptive validity. There was no error in considering whether negligent police conduct was a factor in determining the nature of the error, as the Crown had relied upon a case authority that considered that discrete issue. The concept of police negligence was a valid aspect of the s. 24(2) analysis. The warrant contained an obvious error. No evidence was offered to explain why or how police acted in the face of that obvious error. The finding of negligence was entitled to deference. The trial judge did not err in excluding the evidence pursuant to s. 24(2), having appropriately considered the error, the absence of risk for destruction of evidence, the high expectation of privacy, and the societal interest in adjudication on the merits.

R. v. Campbell, [2018] N.S.J. No. 195, Nova Scotia Court of Appeal, M. MacDonald C.J.N.S., J.W.S. Saunders and C.A. Bourgeois JJ.A., May 23, 2018. Digest No. TLD-June252018007