Re Times Square Book Store and The Queen, 1985 CanLII 170 (ON CA)
(1) Neither the material in support of the application, nor the warrant itself, need be a legally crafted document. Due allowance can be made for the material and warrant on that score.
(2) In spite of the foregoing, the warrant should be reasonably specific when dealing with books and magazines. Sexually explicit material, however distasteful it may be, so long as it is not obscene, is entitled to the same protection as other forms of expression. Section 443(1) of the Criminal Code and s. 8 of the Charter were primarily designed to protect the ordinary citizen interested in the gathering and dissemination of information and ideas and the ordinary bookseller who pursues the same goals; It is only incidentally that the provisions or the charter and the Code may, on occasion, appear to act as a shield and shelter for the pernicious purveyor of pornography.
(3) Neither the material presented in support of the application for a warrant nor the warrant itself need specify the title of each magazine or book sought to be seized. For example, of one of the magazines is described by name and is said to depict men and women engaged in sexual activities combined with scenes of violence and cruelty, that would be sufficient to permit the seizure of that magazine. If the information and warrant went on to say that there were other magazines in the same location in the premises as the named magazine that, by their covers, appeared to depict scenes of sexual activity combined with violence and cruelty, then that would be sufficient to justify the seizure of those other magazines in that location. Such a reference would sufficiently identify the magazines to be seized. At the same time, the description of the acts depicted would accord with the definition of pornography in the Criminal Code and thus could indicate to the justice of the peace that the magazines were probably obscene.
(4) In sum, the material must satisfy the justice of the peace, acting as an independent judicial officer, that on the balance of probabilities, all the materials sought to be seized are obscene and that they are located within the premises to be searched.
(5) The warrant, itself, must set out with the same particularity as the information used in support of the application the items which may be seized.
(6) Lastly, it must be remembered that the role of the motions court judge hearing an application to quash a search warrant is limited. He may not substitute his opinion as to the sufficiency of the evidence for that of the justice of the peace. Rather, the motions court judge must do no more than determine two issues. Firstly, whether or not there is evidence upon which a justice of the peace, acting judicially, could determine that a search warrant should be issued. Secondly, whether the warrant contained sufficient particulars of the items to be seized so that it could not be said that the discretion of the police officer was substituted for that of the justice of the peace as to the items to be seized.
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