Re DNA Warrant for Malcolm, 2020 MBPC 23

CITATION: Re DNA Warrant for Malcolm, 2020 MBPC 23 IN THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: An Application for a DNA Warrant for Lyle Clinton Malcolm pursuant to

section 487.05 of the Criminal Code Anne Krahn, A.C.P.J. [ 1 ] These reasons consider the need for a police officer to swear an information to obtain a DNA warrant before a provincial court judge. [ 2 ] On May 12, 2020, Cst. Jake Lindal swore an information to obtain a DNA warrant in Portage la Prairie before Judge McBride. The practice of swearing an application for a DNA warrant before a provincial court judge has generally been followed since the decision, dated July 28, 2010, of Judge Pollack in Winnipeg (City) Police Service (Re) , 2010 MBPC 43 . In that decision, Judge Pollack held the wording of

section 487.05(1) requires an application be made in Form 5.01. The jurat in Form 5.01 indicates it is to be sworn before a provincial court judge. Judge Pollack found the wording of the form was “mandatory” and all applications for DNA warrants should be sworn before a provincial court judge. In my view, it is necessary to re-consider the decision of Judge Pollack given subsequent decisions and the practical implications of this

interpretation. [ 3 ] The practical impact of requiring an application for a DNA warrant to be sworn before a provincial court judge is exemplified in this case. Judge McBride is the only resident provincial court judge in Portage la Prairie. On May 12, 2020, the officer appeared before Judge McBride to swear his application for a DNA warrant. The sworn document was then mailed to Winnipeg to be considered by the duty judge. [ 4 ] The practical challenges of having an information to obtain a DNA warrant sworn before a provincial court judge have been raised over the past number of years.

I take judicial notice of the fact there are many remote communities in Manitoba where provincial court judges appear on a monthly basis to preside in court. The requirement to have an information to obtain a DNA warrant sworn before a provincial court judge means that police officers stationed in remote communities have to wait until a judge is present in the community, usually for court, to swear the document and then a second judge must consider the application in the following days.

Or it would require the police officer to leave the community in order to have the document sworn before a provincial court judge. [ 5 ]

Section 487.05(3) allows for a DNA warrant to be applied for by telecommunication. It is interesting to note the telewarrant provisions,

section 487.1(3.1), would allow an information to obtain a DNA warrant to be submitted without being sworn but with a statement “that all matters contained in the information are true to [the peace officer’s] knowledge and belief…”. This supports my conclusion, it is not essential the information to obtain a DNA warrant be sworn before a provincial court judge. [ 6 ] A similar issue presented itself to Judge Pollack in 2015, In the Matter of Three applications pursuant to Criminal Code s. 487.014 dated May 21, 2015 for production orders made by a Winnipeg Police Service officer , unreported, May 25, 2015.

In 2014, a number of new production orders were added to the Criminal Code , sections 487.014 - 487.018 . The wording of these provisions say the information must be “on oath in Form 5.004”. In Form 5.004, the jurat is specified as “Signature of justice or judge.” An application for three of the newly enacted production orders came before Judge Pollack. The application had been sworn before a commissioner for oaths rather than a justice or a judge. Judge Pollack held, quoting from R. v. G.(D.) 2014 ONCA 75 , an oath from a commissioner or notary public would be satisfactory (at paragraph 7).

Judge Pollack concluded there was no reason to believe Parliament intended two judges or justices of the peace to be available before an application for a production order could be considered. [ 7 ] In R. v. G.(D.) , the accused argued the fact the Information to Obtain a search warrant was sworn before a commissioner of oaths, rather than a “justice of the peace” as specified in Form 1 of the Code should result in a finding the search warrant was unlawfully issued in breach of

section 8 Charter protections against unreasonable search and seizure. The Court of Appeal rejected this ground of appeal explaining at paragraph 9: The role of a justice commissioning an oath comes into play only by virtue of the wording of Form

Section 32 of the

Interpretation Act R.S.C. 1985, c. I-21 , provides that “[w]here a form is prescribed, deviations from that form, not affecting the substance or calculated to mislead, do not invalidate the form used.”

Section 849 of the Criminal Code permits forms in the Criminal Code to be “varied to suit the case.” That is what has happened in this case. Form 1 has been amended in the Kitchener area (as it has been amended in other regions in Ontario and elsewhere in Canada) to permit commissioners of oaths to commission ITOs. This is entirely appropriate and does not alter the essential point of

section 487.1, namely, that a justice must consider and issue the search warrant based on sworn evidence . (Emphasis added) [ 8 ] The appeal court endorsed and adopted the decision of the court in R. v. Spencer 2009 SKQB 341 . In Spencer , the court rejected an argument that the warrant was invalid because the information to obtain it had been sworn before a commissioner of oaths, contrary to the wording of Form 1 which specifies it be sworn by a “justice”. “Justice” is defined in the Criminal Code as a provincial court judge or justice of the peace.

A commissioner for oaths does not fall within the definition of a “justice”. The court held: The matter of substance is that the evidence be sworn. That requirement was met and the fact that the information was not sworn before a justice of the peace did not invalidate the warrant. (at paragraph 25)

[9] The practice of leaving the Court with a sworn information in support of the judicial authorization being sought by lawenforcement was recommended by the Manitoba Court of Appeal in R. v. Gordon, (MB CA), [1999] M.J. No. 421 atparagraph 50. In Gordon and in G.(D.) the courts noted such a practice ensures no additional oral information is passed on to thejudicial officer outside of the sworn information in the written material.

The decision in G.(D.) further explained such a procedureeliminated the ability for police officers to choose which judicial officer would consider their application. [10] In Hutchison’s Search Warrant Manual 2015, the author refers to a decision by Mr. Justice Fairgrieve that only a “justice”could commission an Information to Obtain, Re Magar, 1998 CarswellOnt 2429 (Ont. Prov. Div.). Mr. Hutchison concludes: … it is, with respect, difficult to see what significant substantive advantage is obtained by inserting an unnecessary hurdle between thepolice and a possible warrant.

No additional penalty would attach to a false Information sworn before a justice and the solemnityattached to attending before a justice to swear such an Information is, with respect, only marginally (if at all) greater than that associatedwith swearing before a commissioner for taking oaths. Indeed, the weight of authority today is against the idea. The Ontario Court of Appeal rejected point from Magar and held thatprovide (sic) the form had been altered to make it clear that a commissioner rather than a justice would take the affiant’s oath, it wasacceptable. (p. 69) [11] I agree with Mr.

Hutchison, the constitutional requirement from Hunter v. Southam (SCC), [1984] 2 SCR 145is the application material should be based on “sworn evidence”. This requirement is satisfied as long as the person before whom thedocument is sworn is entitled to take the oath. The practical challenges of having an information to obtain a DNA warrant sworn beforea provincial court judge in a province with a large geographic area and remote communities, also weighs in favour of an approach whichfocuses on the requirement to submit a sworn document, and not on the legal status of the person taking the oath.

In the future, in myview, it is acceptable for police officers to submit their Informations to Obtain DNA warrants sworn before a commissioner for oaths. The information to obtain a DNA warrant need not be sworn before a provincial court judge. For the reasons set out in R. v. G.(D.),Spencer and Judge Pollack’s unreported decision of May 15, 2015, a document sworn before a commissioner for oaths satisfies thesubstantive legal requirements of the Criminal Code. Dated: May 22, 2020. __ Anne Krahn, A.C.P.J.