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Evidence Case Dicta - Commissioners for Taking Affidavits Act (CTAA). R. v. Pulford
In R. v. Pulford (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown appeal of an acquittal of "possession of child pornography contrary to s. 163.1(4) of the Criminal Code", emanating from "a Garofoli application where the search warrant authorizing the search of the respondent’s home was found to be unlawfully obtained".
Here the court considers the effect of formal 'oath' faults in the 'information to obtain' (ITO) the warrant:Issue 1: Did the use of an expired stamp by the commissioner of oaths invalidate the ITO?
[19] The respondent made no submissions on this issue and conceded that the evidence should not have been excluded under s. 24(2) if this had been the only breach that invalidated the search warrant.
[20] There are two components to this issue: 1) Could the additional evidence contained in the agreed statement of facts be used to rectify the facial error by the commissioner of oaths?; and 2) if it could, did that evidence sufficiently address the problem of the expired stamp?
[21] With respect to the first component, clear precedent from this court, followed in subsequent cases in the Superior Court of Justice, establishes that where there are errors on the face of the ITO in connection with the jurat of the commissioner of oaths, including failure by the commissioner to sign the jurat and failure by the affiant to sign the affidavit, extrinsic evidence is admissible to demonstrate that the ITO was in fact properly sworn: R. v. Lachance, [1988] O.J. No. 151 (C.A.), rev’d on other grounds, 1990 CanLII 53 (SCC), [1990] 2 S.C.R. 1490; R. v. Waldron, [2018] O.J. No. 2445 (S.C.); R. v. Dixon, 2012 ONSC 181.
[22] Regarding the second component, the reviewing judge found that the error with the stamp was not corrected by the evidence in the agreed statement of facts, and that the result was that it jeopardized the oath:What was affixed was an expired stamp, therefore, that document is not valid on its face. There is no information before me that could correct that. Even if the commission had been extended, as indicated in the agreed statement of facts, the document on its face, and relying on Sadikov [2014 ONCA 72, 305 C.C.C. (3d) 421], that this is a facial validity issue, results in a situation that this document was not shown to be taken under oath by someone who was able to take an oath from an individual.
So, if anyone is going to take an oath who has a limitation, such as the commissioner in this situation had a limitation, they must comply with that Act in order to take something under oath. If they take it otherwise, it is as if it was not under oath. [23] The Commissioners for Taking Affidavits Act defines who has the authority to administer an oath in Ontario, and includes commissioners by virtue of holding an office, such as lawyers, and others who are appointed by the Attorney General. The first group has no temporal or territorial limitation on their authority in Ontario, while the latter are appointed for three years, renewable, and may have territorial or other limitations on their authority.
[24] Section 5 of the Act provides:5. Every commissioner whose appointment is limited in its duration or as to territory or purpose shall indicate the limitation by means of a stamp approved by the Attorney General or his or her delegate under subsection 4(1.1) and affixed under the commissioner’s signature. [25] In this case, the commissioner affixed the stamp that applied to her expired appointment. The agreed statement of facts explained that the commissioner’s appointment had been renewed before it expired and that on the date the ITO was sworn, February 3, 2020, “the commissioner held a valid appointment for administering oaths and taking affidavits in Ontario.”
[26] Although the agreed statement does not state explicitly that the commissioner had the appropriate stamp to affix in connection with her renewed appointment, that is implied by the agreed statement. Having a valid appointment includes the ability to exercise that appointment, which requires affixing the stamp each time.[1]
[27] The Criminal Code requires that a justice issuing a search warrant be satisfied by information sworn “on oath”. The evidence in the agreed statement is sufficient to satisfy the court that the ITO was made under oath, and that the commissioner who took the oath had the authority and the capacity to validly do so. The error on the face of the ITO is corrected by the evidence in the same way that it was in Lachance.
[28] I therefore conclude that the reviewing judge erred in law by invalidating the warrant on the basis of the facial defect created by the use of the expired commissioner’s stamp and by excluding the evidence under s. 24(2) based on that s. 8 breach.
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