Telewarrant procedure not to be taken for granted or by default

R. v. Clark 2014 BCSC 1988 – the RCMP executed a telewarrant at a residence rented by the accused, during which they located a marihuana grow operation with 707 marihuana plants and a hydro bypass. The accused was arrested inside the residence.  He was charged with unlawful production of marihuana, possession of marihuana for the purpose of trafficking, and theft under $5000 of hydro from BC Hydro.

The issue on the voir dire was the validity of the search warrant issued for the residence. The informant was an experienced police officer. He decided to apply for a telewarrant to search the premises for suspected theft of electricity from BC Hydro. He testified that in his experience, telewarrant applications were very common. In fact, he said, applying for telewarrants was the standard practice. If he was applying for a warrant during business hours, his practice was to call the Kelowna Court House and ask if a provincial court judge or a Judicial Justice of the Peace (“JJP”) was available. His experience was that typically no one is available and he is routinely directed to use the JJP center in Burnaby to apply for a telewarrant. He stated that what occurred in this case was typical of the telewarrant applications he has done in the past.

During the process, at 2:10 AM, the JJP asked the officer the reason why the application for a search warrant was required at that hour and why the application could not be made during the day. The officer advised the JJP that the courthouse in Kelowna was closed, that in any event there would not be a JJP available at the courthouse, that he was off duty from 4 a.m. until 6 p.m. the following day, and that if a search warrant was issued, he would need time to get a search team together. The JJP suggested that the officer ensure this information was in the ITO before it was faxed. The officer faxed the application, which stated that it was impracticable for him to appear personally because he was “working a nightshift in the early morning hours and the Kelowna Court House is presently closed”. It also stated that, “Due to our local resourcing issues, I will need time to prepare and gather enough human resources to assemble an adequate and safe search team to execute the search warrant.” The JJP approved the warrant.

The Honourable Justice G.P. Weatherill of the BCSC at para 49-50 said there are two relevant requirements for a valid telewarrant:

The first requirement applies to warrants generally and flows from the constitutional right to freedom from unreasonable search and seizure articulated in s. 8 of the Charter. It requires complete judicial independence of the judge or JJP being asked to issue the warrant. This requirement is critical to the balancing of the state’s interests and the individual’s right to privacy inherent in s. 8. As a result, for a warrant authorization procedure to be meaningful, it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met in an entirely neutral and impartial manner (Hunter at para. 32). Hunter calls this “acting judicially” and states this is the minimum requirement for a justice presiding over a warrant application (at para. 32).

The second requirement is stipulated in the telewarrant provisions of the Code itself. A telewarrant generally is available when it is “impracticable” to appear personally before a justice and obtain a regular warrant. Specifically, s. 487.1(1) of the Code states that when the peace officer believes it would be impracticable to appear personally before a justice to make an application for a warrant in accordance with ss. 256 or 487, he or she may submit an information on oath by telephone to a justice. In turn, according to s. 487.1(5)(b), the justice must be satisfied that an information submitted by telephone discloses reasonable grounds for dispensing with an information presented personally and in writing. In other words, the officer must have a sufficient belief in the impracticability and that impracticability has to be sufficiently demonstrated to the justice.

The test for impracticability under s. 487.1 means something less than impossible and imports a large measure of practicability and what might be termed as common sense (R. v. Erickson, 2003 BCCA 693; R. v. Grant, 2005 BCSC 1792). The accused argued that the JJP did not “act judicially” in granting the telewarrant because he counseled the officer about what information to include in the application for the telewarrant. The ITO originally stated that it was impracticable to obtain a warrant in person because he was “working the nightshift in the early morning hours and the Kelowna courthouse is presently closed.” The JJP provided guidance to the officer by stating he would need more explanation for why a regular warrant was impracticable. Subsequently, the officer amended the ITO by adding an appendix, para. 26.

Justice Weatherill said even though the evidence did not go so far as to suggest that the JJP told the officer exactly what to add, it still amounted to guidance because without it would infer that the JJP would have found the ITO to have been deficient. By providing this guidance, the justice was not acting judicially. In Justice Weatherill’s judgment, the guidance the JJP provided to the officer was for the purpose of facilitating the acceptance of the telewarrant application and the JJP was in favour of the telewarrant being approved even before he had seen it.

Justice Weatherill said exhibiting a preference or providing guidance, no matter how slight, cannot be said to constitute a review in an “entirely neutral and impartial manner” as per Hunter, so paragraph 26 of the Appendix to the ITO must be excised. With paragraph 26 excised, the only reasons left in the ITO justifying the impracticability of obtaining a warrant in person were “working the nightshift in the early morning hours and the Kelowna courthouse is presently closed” and more is required from an ITO’s affiant than a bald and boiler plate statement such as that.

Of greater concern to Justice Weatherill was the officer’s evidence that applications for telewarrants rather than conventional warrants have now become standard practice of the RCMP. In essence, his evidence was that telewarrants have now become the default and standard method of obtaining search warrants. If that is the case, such practice is misguided and, short of an amendment to the Code, should not be condoned said the Justice. The telewarrant provisions of the Code are not the default method of obtaining search warrants, but are only to be engaged when “it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section …487”:

“In my view, s. 487 continues to be the primary and preferred manner for the police to apply for search warrants and for good reason. Search warrants authorize the state to intrude on the privacy and sanctity of a person’s privacy rights guaranteed by the Charter and ought to be allowed in appropriate circumstances only if the provisions of s. 487 have been met to the satisfaction of a justice.

The first step a police officer should take in seeking a search warrant is to make a reasonable attempt to obtain the warrant under s. 487. If after a reasonable attempt, objectively measured, obtaining a warrant under s. 487 proves impracticable, the officer has the ability to apply for a telewarrant under s. 487.1. To go directly to a telewarrant application by default without any effort to obtain a s. 487 warrant is a short-cut that is not permitted by the Code as it is presently framed.”

Following the Grant analysis, Justice Weatherill ordered the evidence obtained by the RCMP as a result of the Warrant be excluded under s. 24(2) of the Charter.

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