R. v. Ting, 2016 ONCA 57
[47] Broadly defined, a search warrant is an order issued by a justice of the peace that authorizes the police to enter a specified place to search for and seize specific property: see A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at 179.
[48] An adequate description of the place to be searched is a fundamental component of a search warrant. Its importance cannot be overstated: see R. v. Le, 2011 MBCA 83, 270 Man.R. (2d) 82, at para. 77; James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada, 8th ed (Markham: LexisNexis Canada Inc., 2010) at 87-92.
[49] Without an adequate description of the premises, the issuing justice of the peace would not be assured that he or she is not granting too broad an authorization, or an authorization without proper reason. The police officers called on to execute the search warrant would not know the scope of their search powers. Further, those subject to the warrant would be left in doubt as to whether there is valid authorization for those searching their premises.
[50] Accordingly, a warrant that does not adequately describe the place to be searched is invalid. As articulated in Re McAvoy, [1970] N.W.T.J. No. 5 (Terr. Ct.), at para. 50,:
To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant fails to adequately describe the offence, fails to accurately describe the premises to be searched, or fails to give an accurate description of the articles to be seized then it will be invalid.
[51] Just what constitutes an adequate description will vary with the location to be searched and the circumstances of each case. With respect to a multi-unit, multi-use building, as seen in this case, it is not enough to simply provide a street address that distinguishes the building from others. The description must adequately differentiate the units within the building, as those in a multi-unit dwelling have the same expectation of privacy as those in a single-unit dwelling. The Supreme Court of Canada articulated this point in R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 15:
[The accused’s] expectation of privacy in his room within the townhouse is just as high as that of a resident of a single dwelling unit. In drafting ITOs proposing to search more than one unit within a multi-unit dwelling, this principle should be reflected by clearly setting out reasonable and probable grounds for each unit to be searched.
[59] It is not enough, however, for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it – including police officers who are executing it and third parties whose cooperation is sought – must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched: see Re Times Square Book Store and the Queen (1985), 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and R. v. Parent (1989), 1989 CanLII 217 (YK CA), 47 C.C.C. (3d) 385 (Y.C.A.), at 396-97.
[60] A function of a warrant is to guide and limit the actions of the police officers. A warrant that is ambiguous cannot perform that function. Neither can the subject of the warrant know whether the police are authorized to search the premises.
[63] The role of a judge reviewing a search warrant is not to ask whether she would have granted the warrant were she the issuing judge, but to determine whether the warrant could have been issued: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at 1452.
[64] In doing so, the application judge may be permitted to rely on “amplification evidence”, which is additional evidence presented at the voir dire. There are limitations to the use of amplification evidence, as set out in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 42-43:
Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds.
…
Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct “some minor, technical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” such errors.
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