R. v. N.M., 2007 CanLII 31570 (ON SC)
[365] In Det. Lowry’s ITO there are no grounds of belief specific to the out-buildings and, subject to the curtilage argument, such omission would constitute a substantive and fatal facial defect in the warrant materials with the words, “and related out[-]buildings”, amounting to a boiler-plate-like add on. I will return later to the issue of whether reasonable grounds did in fact exist to believe the things to be searched for would likely be discovered in a search of the out-buildings. Of course, the fact that the police had facts which could have formed a basis for issuance of a warrant does not validate the information or the warrant: R. v. Harris and Lighthouse Video Centres Ltd. 1987 CanLII 181 (ON CA), (1987), 35 C.C.C. (3d) 1 (Ont. C.A.) at 15 (leave to appeal refused [1987] S.C.R. vii).
[368] At common law, “the hoary concept of “curtilage”” (U.S. v. Arboleda, 633 F. 2d 985, 992 (2nd Cir. 1980)) relates to property considered to be an integral part of the house. In Lauda, at 374, the court referred to “…the house, including the area immediately surrounding it (referred to as the “curtilage”)”. In U.S. v. Dunn, 480 U.S. 294, 300 (1987), in a discussion of the curtilage issue, the court cited 4 W. Blackstone Commentaries 225, “no distant barn, warehouse or the like are under the same privileges, nor looked upon as a man’s castle of defence.” Hutchinson, in Search and Seizure Law in Canada (Carswell) at page 16-31, states:
As the common law consistently recognized that authority to search must be strictly limited to the precise structure or place set out in the order (which would only include the “curtilage”), a search of a dwelling-house does not import authority to search any outbuildings, garages, sheds, barns, receptacles, lockers, etc., at the same location as the principal residence. Accordingly, if the police want to search such outbuildings, they should be expressly included in the warrant. (emphasis added)
[375] Turning to decisions where the courts have considered the curtilage to not include places searched by the police: Dunn (barn 50’ from residence); R. v. LaPlante 1987 CanLII 209 (SK CA), (1987), 40 C.C.C. (3d) 63 (Sask. C.A.) (workshop 40’ from dwelling);Tesfai, at para. 20, 24-5 (retaining wall a few feet distant from home’s patio).
[376] In the present case, the factual circumstances do not reasonably support the workshop being within the curtilage of the N.M. dwelling considering:
(1) The detached out-building was at least 35’ distant on Det. Lowry’s estimate. He did not search the building. I find the more accurate estimate to be that of the resident, N.M., that the separation was about 70’.
(2) The building is itself a significant size at 70’ x 30’ perhaps larger than the dwelling. The building was used for storage and tools. There is no evidence of uses approaching the heightened expectations of privacy associated with a personal dwelling- house.
[377] Returning to the issue as to whether reasonable grounds did exist to search the out-buildings, I am unpersuaded that such was the case given the nature of the property to be searched for and the information from Manser as to where it was located. The belief of the police that the property might be located in the out-buildings was at the level of unfounded speculation, not credibly-based probability. To borrow the words of Rosenberg J.A. in a different context in Hosie, at 394, the inclusion of related out[-]buildings amounted to “reliance upon ritualistic phrases without regard to the facts of the particular case”.
[378] Even had reasonable grounds existed to search the out-buildings, a further facial validity issue exists as a result of the non-specific language of their descriptions in the warrant. Search warrants are highly intrusive of privacy interests: Baron, at 530;CanadianOxy Chemicals Ltd. v. Canada reflex, (1999), 133 C.C.C. (3d) 426 (S.C.C.) at 434. As a result, there is an expectation that the “building, receptacle or place” to be searched will be described with some precision. Fontana, The Law of Search and Seizure in Canada (3d) (Butterworths – 1992) at page 66 notes:
Power to conduct an entry and search has by tradition and common law been limited to the place described in the instrument of search: hence the necessity for a very precise description. Many warrants have been struck down for lack of precision in the description of the place alone, since the search was to be limited to such place and the warrant gave no power to search outbuildings or conveyances at the place described unless specifically set out therein.
[379] In this case, the warrant issued for “related out-buildings”. There is an ambiguity and lack of specificity about the places to be searched. Is it all out-buildings or is the warrant open to the interpretation that the police are to sort out a “related” out-building from an “unrelated” out-building once on scene – an impermissibly broad discretion departing from obedience to the prior authorization model: R. v. Noble 1984 CanLII 2156 (ON CA), (1984), 16 C.C.C. (3d) 146 (Ont. C.A.) at 155 (general warrants offensive to the common law because they “leave to the discretion of the officer…what premises to search”).
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