Evidence Excluded Despite Novel Approach from Crown Counsel
In the latest Canlii Connects case summary we take a look at a recent decision where Crown Counsel tried their best to save an unlawful search. The Court did not endorse this novel approach.
Issue: Can the Crown call evidence at a s. 24(2) hearing to show that they in fact had the required reasonable grounds for the search.
Facts: The court found in an earlier ruling (2021 BCSC 1778) that there was insufficient information in the Information to Obtain (ITO) the search warrant to support an objectively reasonable belief that evidence of the drug trafficking offences under investigation would be located at the residence of the accused. As a result the warrant was set aside and the search of the residence breached the accused’s s. 8 Charter right to be free from unreasonable search and seizure.
The matter proceeded to a s. 24(2) hearing where Tammen J. considered whether the evidence obtained from the search needed to be excluded.
At that hearing the Crown called the affiant of the ITO in an effort to show that he in fact possessed the requisite reasonable and probable grounds for the issuance of the warrant and, had he properly outlined them in the ITO, the warrant would have properly issued. Thus, the evidence was discoverable, a fact which substantially diminishes the impact on the Charter‑protected interests of the accused.
Ruling: The evidence was excluded. The breaches were found to be serious and the impact significant.
The decision is noteworthy for what it says about the Crown’s effort to lead evidence at the s. 24(2) hearing in an effort to repair the grounds that were previously found to be insufficient.
On the evidence lead the hearing judge could not make a finding of fact that police possessed the required grounds for the warrant and thus the evidence was legally discoverable.
The Court was critical of the Crown’s approach.
[27] In my view, to receive this type of evidence at the s. 24(2) stage is fraught with danger…Here the additional evidence amounted to an attempt to completely reconstruct the grounds on which the affiant said he believed the important facts set out in the ITO.
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[29] Permitting the police to substantially supplement the grounds at the s. 24(2) stage of a Charter motion in essence gives them a second chance to make their case for a warrant. The danger in that approach is self‑evident, particularly in a case such as this when the challenge occurs many years after the issuance of the warrant. I accept the sincerity of Corporal Wilcott's belief that he had all the additional information at the time, but he obviously and understandably cannot recall what was in his mind over a decade ago.
[30] If the approach proposed here were to become commonplace, it could lead to police ex post facto reviewing the investigative file to fill in gaps and unearth new evidentiary threads to bolster their grounds. That practice would do significant damage to the legally‑required regime of prior judicial authorization for warrants.
This was a creative effort by Crown Counsel. It will be interesting to see if the Court’s comments bring an end to this sort of attempt to saving unlawful searches.