Un enquêteur doit divulguer toute information pertinente, incluant l'existence d'une controverse jurisprudentielle au sujet de la question juridique en litige s'il aborde cela dans son affidavit & cette autorisation sollicitée doit alléguer la commission d'une infraction connue en droit

R. v. Branton, 2001 CanLII 8535 (ON CA)

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The affiant of the Information to obtain the search warrants started out with 11 paragraphs copied from an Information prepared by another officer. Those paragraphs had nothing to do with the police investigation relating to the respondents. The affiant cited two cases favourable to his interpretation of the law and omitted a case against his interest which was contained in the precedent which he copied. The Information contained misstatements of fact and ill-founded conclusions. The affiant did not make full, fair and frank disclosure to the issuing justice. This failure deprived the justice of his right to assess all of the circumstances in deciding whether it was appropriate to issue the warrant. The usable contents of the search warrant failed to satisfy the statutory grounds for issuing the warrant

[16] One of the requirements for the issuance of a search warrant is that the search will provide evidence with respect to an offence known to law.

[30] Language in a search warrant that is so careless, filled with inaccuracies, or [reliant] on ritualistic phrases that it masks the true state of affairs and deprives a judicial officer of the opportunity to fairly assess whether the requirements for the issuance of a warrant have been met strikes at the core of the administration of justice: R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 at pp. 398-400, 37 C.R.R. (2d) 97 (Ont. C.A.). If, after cross-examination of the affiant in support of the application for the warrant, there remains no basis upon which the authorizing judge could have granted the warrant, this will amount to a defect in jurisdiction and certiorari to quash the warrant will issue: R. v. Hosie, supra, and Re Church of Scientology and R. (No. 4) (1985), 1985 CanLII 3615 (ON SC), 17 C.C.C. (3d) 499 at p. 500 ff. (Ont. H.C.J.).

[35] An additional ground for quashing the warrants that was argued before the motions judge was whether the search warrants were invalid on their face for failure to comply with s. 487 of the Criminal Code. The search warrants purport to authorize the search and seizure of "things . . . that are being sought as evidence in respect of the commission, suspected commission or intended commission of an offence against the Radiocommunication Act. . . ." [Emphasis added]. The warrant was issued pursuant to s. 487(1)(b) of the Criminal Code. That section limits a search to "evidence with respect to the commission of an offence". In authorizing a search for evidence of the "suspected or intended commission" of an offence, the warrants exceeded the authority prescribed in s. 487.

[36] While the motions judge did not comment on this submission, it appears that the warrant was also invalid on its face.

[37] The motions judge properly quashed the warrants on review. Inasmuch as I would decide this appeal in the respondents' favour, I do not consider it necessary to address the Charter issue that was raised with respect to freedom of expression in s. 2(b).

[41] The real misconduct here was the overseizure of the respondent's goods, not the conduct of the litigation by the Crown. The motion and the appeal raise important legal issues and the Crown was entitled to pursue these issues. The remedy for the overseizure of the respondent's goods is a civil action for damages. Accordingly, while I would dismiss the appeal, I would not award costs against the Crown.