The Criminal Code provides that, where a Justice of the Peace is not readily available a search warrant may be obtained electronically from a Justice. The key, for this case, was the availability of a Justice.
Section 487.1(1) of the Criminal Code reads:
Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an Information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.
In fact the officer failed to determine if a Justice was available and the Crown conceded the telewarrant was invalid. That said, the invalidity was found to be technical and not sufficient to trigger an exclusion of evidence. The offence and the evidence were such that to exclude the drugs found during the search would bring the administration of justice into disrepute. A mere technical breach, in these circumstances, cannot support the exclusion of evidence:
[31] The Crown conceded at trial, and concedes on appeal, that there was no evidence in the ITO to support Constable Di Nella's statement that no judicial officer was available, that he had not made any inquiry in that regard, and that the telewarrant was therefore invalid. However, Crown counsel suggests that the record may be incomplete on this subject. He says the question of impracticability was not raised by defence counsel before the voir dire commenced, and only arose in cross-examination of Constable Di Nella. In submissions, Crown counsel drew the trial judge's attention to an earlier memorandum from the Chief Judge of the Provincial Court, not in evidence, effectively saying that there will never be a justice of the peace or a judge available to hear warrant applications (Tr. p. 115).
[32] In addition, Crown counsel says there is no evidence that Constable Di Nella was trying to avoid appearing in person before a justice, or that he acted in bad faith. He says that a finding of either good or bad faith on the part of Constable Di Nella could only be made on evidence other than that of Constable Di Nella himself. Crown counsel says it was reasonable to infer that the officer had a momentary lapse that at worse could be characterized as inadvertence. He says this Court should defer to the trial judge's findings of fact with respect to Constable Di Nella's state of mind in preparing the ITO, and that on the whole of the evidence his conclusions are reasonable.
[33] The question under s. 24(2) of whether the admission of evidence would bring the administration of justice into disrepute is a question of mixed fact and law, subject to the standard of palpable and overriding error, unless there has been an error of principle or law: see R. v. Smith, 2005 BCCA 334 (CanLII), 2005 BCCA 334 at paras. 36-38, citing R. v. Buhay, 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631 at para. 45.
[34] In this case, there is an absence of direct evidence to support some of the trial judge's findings concerning police conduct. The test on review of factual conclusions based on the drawing of inferences is similarly one of substantial deference to the trial judge. The standard of review is whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 at 251-256, 2002 SCC 33.
[35] The important findings of fact made by the trial judge concerning the police conduct in obtaining the telewarrant are set out in paras. 63 and 66 of his reasons, quoted above. Paraphrasing para. 63, the learned trial judge held that there was no improper motive, malice, bad faith, dishonesty or attempt to mislead on the part of Constable Di Nella. He says the breach of s. 8 was not deliberate, wilful or flagrant. With respect, on a review of the entire record, it appears to me that those are all inferences reasonably open for the trial judge to draw.
[36] However, some statements in para. 63 of his reasons deserve closer scrutiny. Those statements are:
(1) The failure by Constable Di Nella to disclose what steps he had taken with respect to the impracticality of the tele-warrant in the context of this case does not come out of any lack of attention to detail or misconduct or intent to mislead or be dishonest;
(2) It was not clear on the whole of the evidence whether or not he knew exactly what steps he had to take or what he was relying upon to make the assertion of fact which he did; and
(3) I am satisfied that the breach was in no way deliberate, wilful or flagrant and that on the basis of this circumstance in this case, that this is an area which, at the time in 2004, was in a state of flux due to numerous decisions being made by the Chief Judge of this Court.
[Emphasis added].
[37] These statements must be viewed in light of the language of s. 487.1(1) of the Criminal Code which reads:
Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an Information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.
[38] This section contemplates that the Chief Judge of the Provincial Court may designate a justice for the purposes of receiving ITOs by telecommunication and issuing telewarrants based on such ITOs. There is nothing in this record to provide evidence as to what designations, if any, the Chief Judge made in this respect for Surrey in 2004. There are only the submissions of counsel at the close of the voir dire. It may well be that the learned trial judge had information about these matters that is not disclosed in the evidence.
[39] The trial judge's statements in para. 63, identified above, seem to come to this: there was some uncertainty at the time in Surrey as to the designation of a justice. Constable Di Nella may therefore have been unclear as to whether he had to make an inquiry in every case as to the availability of a justice before whom he could appear in person. As a result, his failure to say in the ITO what steps he had taken was not the result of any lack of attention to detail or misconduct or intent to mislead or be dishonest.
[40] In my respectful view, the only part of that statement that may be questioned is whether Constable Di Nella showed any lack of attention to detail. His own evidence in this regard is that he did not recall whether he made any phone calls as to the availability of a justice (Tr. p. 53) and believes he may have assumed that none was available from what he had been told on prior occasions.
[41] In my opinion, that evidence would have supported a conclusion that Constable Di Nella did show some lack of attention to detail. However, even if the learned trial judge misstated the evidence or the effect of the evidence in that regard, Constable Di Nella's conduct could at worst be characterized as inadvertent or perhaps careless. I do not think his conduct could be raised to the level of deliberately flagrant or dishonest such as would weigh heavily against the admissibility of the evidence seized under the telewarrant.
[42] I am therefore not persuaded that the learned trial judge erred in his assessment of the seriousness of the police conduct in seeking a telewarrant based on the unavailability of a justice.
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