Si un mandat de perquisition indique une adresse erronée, la perquisition et la saisie qui en découlent sont considérées comme sans mandat

R. v. Pampena, 2022 ONCA 668

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[24]      To be valid, a search warrant must authorize a search of a specified place: A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at p. 179. Accordingly, “if the warrant outlines the wrong address, the search and seizure are viewed as warrantless”: Scott C. Hutchinson et al., Search and Seizure Law in Canada, loose-leaf, (Toronto: Thomson Reuters Canada Ltd., 2022), at para. 16:18. An accurate description of the premises to be searched is necessary to “avoid search warrants becoming an instrument of abuse”: R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 50.

[25]      In this case, the warrant was issued for the wrong address. Therefore, as conceded at trial, when the police searched the appellant’s residence, they conducted a warrantless search of his home. This was a serious breach of the appellant’s s. 8 Charter right, because of the high expectation of privacy in the home. This was confirmed most recently in R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, where Moldaver and Jamal JJ., writing for the majority, stated at paras. 49-50:

This Court has emphasized time and again that a person’s home attracts a high expectation of privacy. A fundamental and longstanding principle of a free society is that a person’s home is their castle (Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at pp. 742-43, per Dickson J. (as he then was), citing Semayne’s Case (1604), 5 Co. Rep. 91a, 77 E.R. 194, at p. 195). The home is “where our most intimate and private activities are most likely to take place” (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 22). Moreover, this Court recognized in R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 140, per Cory J., that “[t]here is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling-house’”.

Given the privacy interests in the home, warrantless searches of the home are prima facie unreasonable. This was confirmed in R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, where the Court held that even if the police have an arrest warrant, they are not generally permitted to make an arrest in a home without a specific warrant permitting entry. Parliament later codified the principles in Feeney by introducing ss. 529 to 529.5 into the Criminal Code to govern when police may enter dwelling-houses to carry out arrests.

[26]      The trial judge found that, while the appellant’s s. 8 Charter right was breached, there were factors which reduced the seriousness of the officers’ conduct in this case. By virtue of their ongoing surveillance of the appellant, the officers knew which residence to search prior to the issuance of the warrant. And because the erroneous address did not actually exist, there was no risk that the police would enter the home of an innocent person using the invalid warrant.

[27]      However, in other circumstances, the results of an incorrect address in the warrant can be far more detrimental. For example, if because of the error, the warrant had contained the address of another, unrelated person, and the police had conducted a dynamic entry there, that person would have been subjected to a frightening, illegal entry and search by police: see Grant, at para. 75.

[28]      It is incumbent on police officers obtaining and executing a search warrant to be vigilant about the accuracy of the address to be searched, because the consequences of an error can be far-reaching. As a general matter, because of the importance of the accuracy of the address to the validity of the warrant, an error in the address should not be characterized as minor.

[29]      The officer who prepares the ITO bears the responsibility to ensure the accuracy of the information that will justify the issuance of a search warrant. The judicial officer who authorizes the warrant relies on the accuracy of the ITO. The warrant’s authority depends on the accuracy of the information that supports it.

[30]      Therefore, it is essential that the officer who prepares the ITO take steps to ensure the accuracy of the address, and for the officers executing the warrant to ensure, before they enter, that the warrant authorizes entry of the address they are about to search. In this case, the officers took the step of reviewing the documents, but they did not catch the error. An additional step to ensure accuracy would be to specifically compare the address on the ITO and on the warrant with the actual address to be searched.

[31]      The appellant also submits that the trial judge should have found that the use of the dynamic entry aggravated the seriousness of the breach and did not constitute good faith police conduct. I would not accept that submission. I accept the explanation provided by the Crown that the handwritten note by the Justice of the Peace who issued the warrant indicated that he did not have the authority to authorize a dynamic entry, not that he was specifically not authorizing it.