R. v. Neill, 2023 ONCA 765
[11] In R. v. Branton (2001), 2001 CanLII 8535 (ON CA), 154 C.C.C. (3d) 139 (C.A.), at para. 35, this court held that language on a search warrant form referring to the “suspected commission or intended commission of an offence” exceeded the statutory power of search authorized by s. 487 of the Criminal Code, and rendered the search warrant invalid on its face.
[12] Before the trial judge, the Crown conceded that, in light of Branton, the form used was in error. However, the Crown argued that the Information to Obtain (the “ITO”) clearly specified in Appendix A that the affiant “had reasonable grounds that the items in Appendix A [the Blackberry] will be found at [the police property bureau]”, thus, specifying the constitutional minimum standard.
[13] The trial judge found that the police conduct in using the outdated search warrant Form 5 was “careless”. However, he found that, on the record before him, the error was harmless because there was no risk that the overbroad wording on the Form 5 allowed for an overbroad search. The officer who was the informant for the ITO, and who attended pursuant to the warrant to seize the Blackberry from the property bureau and transfer it to the Tech Crimes Unit, was the lead officer on the investigation and one of the officers involved in the initial seizure of the Blackberry from the appellant. His investigation was focused on public posting of images of child pornography. The trial judge found that there was “no chance that [this officer] would have been misled by the error in the form.” Relying on the decision of Fairburn J. (as she then was) in R. v. Nguyen, 2017 ONSC 1341, at paras. 115-16, the trial judge applied the principle of severance and found that the use of the Form 5 with outdated language did not render the warrant invalid.
[14] The appellant argues that the doctrine of severance should not have been applied; rather, a s. 8 breach should have been found and questions about whether the overbroad language actually had any impact or would have caused confusion about the scope of the search authorized should have been considered in the s. 24(2) analysis.
[15] In some cases, trial courts have applied the doctrine of severance in circumstances involving a Branton error; in other cases, trial judges have declined to sever the offending portion of a warrant: Nguyen, at paras. 115-16; R. v. Nurse and Plummer, 2014 ONSC 1779, at paras 35-39 (affirmed on other grounds without reference to this issue, 2019 ONCA 260, 145 O.R. (3d) 241); R. v. N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.), at paras. 333-36; R. v. Kramshoj, 2017 ONSC 2951; R. v. Persaud, 2016 ONSC 8110. Whether or not severance is an appropriate remedy is a fact-specific analysis.
[16] In the circumstances of this case, we see no error in the trial judge’s conclusion that the language of “suspected commission or intended commission of an offence” in the Form 5 was severable from the balance of the search warrant and that there was no risk of an overbroad search. In addition to the reasons given by the trial judge, we note Appendix B to the search warrant particularized the offences for which it authorized the seizure and forensic analysis of the Blackberry to completed offences of possession of and making available child pornography in the past. This removed any risk that an officer acting under the warrant would search for evidence of suspected or intended offences.
[17] The second argument raised by the appellant in relation to the search warrant is that the police failed to comply with the time period set out in the search warrant. The search warrant authorized seizure of the Blackberry from the police property bureau “between 6:00 a.m. and 8:59 p.m. on April 23, 2015”. The police attended in that time frame to seize the Blackberry from the property bureau. However, the analysis of data from the Blackberry was not completed until May 4, 2015. As noted above, Appendix A, which formed part of the search warrant, included terms and conditions specifying that the warrant authorized analysis of the Blackberry for data involving the listed offences, and included direction as to the types of data. However, there was no time frame specified for the forensic analysis of the Blackberry. On appeal, the appellant maintains the argument made before the trial judge that the warrant should be read as requiring that the forensic analysis of the Blackberry be completed between 6:00 a.m. and 8:59 p.m. on April 23, 2015.
[18] The trial judge found that there was no s. 8 breach because the terms of the search warrant provided for a time frame for the seizure of the Blackberry from the property bureau (which the police complied with) but did not specify a time frame for the forensic analysis of the Blackberry. Relying on the decision of Paciocco J. (as he then was) in R. v. Barwell, [2013] O.J. No. 3743 (Ont. C.J.), the trial judge found that where a warrant specifies a time frame for seizure of an electronic device from a police locker or property bureau, but does not specify a time frame for the forensic analysis, the timing of the forensic analysis is governed by ss. 489.1 and 490 of the Criminal Code (reports to a justice and detention of things seized by police). The trial judge found that police complied with the time specified in the warrant to seize the Blackberry from the police property bureau. He further found that the forensic analysis was completed while the detention order made for the Blackberry after it was first seized was still in force. As a result, he found no breach of s. 8 on this basis.
[19] We see no error in the conclusions of the trial judge that the police complied with the terms of the warrant, which only included a time for when the police were to seize the Blackberry from the property bureau; that the warrant did not specify a time frame for the completion of the forensic analysis; and that the Blackberry was still subject to the detention order after the initial report to a justice at the time the forensic analysis was completed. As with the use of the outdated Form 5, the trial judge’s conclusions were fact-specific findings, grounded in the specific wording of the search warrant in this case. The decisions of R. v. D’Souza, 2016 ONSC 5855, at paras. 162-90, and R. v. Little, 2009 CanLII 41212 (Ont. S.C.), at paras. 154-61, relied on by the appellant, are distinguishable from this case. In each of those cases, based on the specific wording of the warrant – which was different than in this case – the trial judge found that the time frame specified in the warrant applied to the forensic analysis process. The appellant did not argue either before the trial judge or in this court that the absence from the warrant of a specific time frame for the forensic analysis of the Blackberry to be completed violated s. 8 of the Charter.
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