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Forms - Criminal. R. v. Neill
In R. v. Neill (Ont CA, 2023) the Court of Appeal considered the effect of outdated and jurisdiction-exceeding text of a search warrant form, and the corrective application of the doctrine of 'severance':[10] We consider first the language in the search warrant form. As noted above, the warrant was issued in order to seize the Blackberry from the police property bureau and transfer it to the Tech Crimes Unit for forensic analysis. The warrant form in this case (“Form 5”) included language authorizing the police to seek “evidence in respect to the commission, suspected commission or intended commission of an offence under the Criminal Code” (emphasis added to show the impugned language). However, the offences for which the warrant was issued were particularized to specify possession of child pornography and making available child pornography, “to wit: graphic computer files”, “on or between July 31, 2013 and December 23, 2013”. The search warrant also contained on its face 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 the police were authorized to search for. The specific offences and the terms and conditions were included in appendices A and B to the search warrant. These appendices formed part of the search warrant order. They were specifically referred to in the Form 5 search warrant order signed by the issuing justice. The trial judge found that copies of appendices A and B were attached to the search warrant as issued.
[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[13] The trial judge found that the police conduct in using the outdated search warrant Form 5 was “careless”.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.
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