2012 SKPC 107, 2012 SKPC 107

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 107 Date: July 03, 2012 Information: N/A Location: Saskatoon _____________________________________________________________________________ Re: Information to Obtain General Warrant, Assistance Order and Sealing Order sworn June 27, 2012 by Detective Constable Matthew Ingrouille W.E. McBride For the Crown FIAT Q.D. AGNEW , J [ 1 ] On June 27, 2012 an Information to Obtain was presented to me. That Information requested a General Warrant, Assistance Order and Sealing Order, and was sworn on that date by Matthew Ingrouille.

On that same date, I made a fiat refusing the requested warrant and orders, and outlining my reasons for so refusing. The Crown has requested that I reconsider that decision. This fiat is in response to that request. [ 2 ] The draft warrant which I rejected on June 27, 2012 included terms that would allow peace officers to covertly enter and search certain specified premises and vehicles. In my original fiat, I indicated that I was prepared to grant the warrant with respect to those premises and vehicles. The draft also requested authorization to covertly enter and search as follows:

1(

c) any other place within Canada there are reasonable grounds to believe, is a residence, whether permanent or temporary, (including hotel or motel accommodation) of [a specified person] or a person who there are reasonable grounds to believe is acting in concert with one or more of those persons to commit one of [certain specified offences]. 3(

b) any other vehicle or other form of conveyance within Canada there are reasonable grounds to believe that [a specified person] has resorted to, used, or been present at, during the term of this warrant. [ 3 ] The draft also requested an assistance order, compelling various classes of persons to assist the peace officers in carrying out the terms of the warrant. [ 4 ] In my fiat refusing the draft warrant, I stated as follows: The request for the above Warrant and Orders is refused. The areas for which searches are requested to be authorized in the proposed General Warrant are too broad. The residences specified in paragraphs A(1)(

a) and (

b) are proper, but (

c) is not. If search is sought for any other locations beyond (

a) and (b), a further application may be made, stating in greater detail where and why. Similarly, the vehicle specified in paragraph A(3)(

a) is proper, but (

b) suffers from the same problem as A(1)(c). Given the restrictions indicated above, I am not persuaded that any of the terms in paragraph C [the “assistance order” provisions] are required. Again, further application may be made, providing further information to justify such terms, if they are still sought. [ 5 ] The Crown has now requested that I reconsider this matter, and provided me with caselaw and argument on the issue. The Crown makes extensive reference to the Supreme Court of Canada’s 1990 decision of R. v.

Thompson [1] , which examines in detail clauses similar to the “residence” and “vehicle” clauses in the draft warrant which I refused. In that decision, and in the balance of these reasons, such clauses are referred to as “resort to” clauses. [ 6 ] I note in passing that the Crown’s submissions refer a number of times to the majority decision in Thompson as having been written by Dickson C.J. The copy of the decision to which I have access refers to the majority decision as having been authored by Sopinka J., although certainly concurred in by Dickson C.J.

Nothing of course turns on this. [ 7 ] Thompson involved telephone wiretaps. The authorization for the wiretaps permitted the interception of telephone calls at the addresses of certain named persons, “or elsewhere in the Province of British Columbia resorted to” by those persons. The issue germane to this fiat which was examined by the Supreme Court was whether or not the authorization violated s. 8 of the Charter , the right “of individuals [to be free] from unjustified state intrusions upon their privacy”, as it was referred to by the Supreme Court in Hunter v.

Southam Inc. [2] In Thompson , the Court held that the “resort to” clause was saved by the requirement that it was subject to the police having reasonable and probable grounds for believing that the subject was going to use a different telephone than specified in the authorization. [ 8 ] I note that the clauses of the draft warrant which I rejected specifically refer to places or vehicles where there are reasonable grounds to believe that the specified person (or certain others) have been.

In this respect, I am satisfied that the warrant as drafted falls within the scope of Thompson . [ 9 ] There is, however, a significant difference between Thompson and the present situation. Thompson involved telephone communications, whereas the present matter involves residences (whether permanent or temporary) and vehicles. I believe the privacy issues involved are not the same.

[ 10 ] Telephone conversations are, of course, typically private. They may perhaps have been more so when Thompson was decided than today, when it is not uncommon for persons with cell phones to share their side of their telephone calls with anyone within earshot. Still, typically people expect their telephone calls to be private. None the less, a telephone call necessarily involves a communication with at least one other person.

By its very nature, a telephone call is not entirely private - its essence is the sharing of information with another. [ 11 ] The draft warrant with which I am dealing does not involve telephone conversations. It involves the physical search of physical places, places which may or may not belong to or be controlled by the subject(

s) of investigation. The first clause refers to covert entry into, and search of, any place in Canada where a certain person is reasonably believed to reside, whether permanently or temporarily. There is no restriction as to whether or not any other person, not the subject of the investigation, might be the owner or resident of such place. The privacy rights of any such person receive no protection in the draft warrant.

The draft warrant, on its face, would conceivably authorize police covert intrusion into and search of the home of an unrelated person simply on the basis that the subject of investigation slept for a night on their couch. [ 12 ] To make the concern more concrete, let us imagine a scenario in which a subject person, X, travels to another city. His car breaks down, but fortunately he remembers that a friend from school, Y, whom he has not seen in years, lives in that city. X phones Y and prevails on him to allow X to sleep on the couch for the night so that his car can be fixed.

Y, his spouse and children extend their hospitality to X for the night, and in the morning X leaves, his car having been repaired. The draft warrant would allow the police, without any further requirements or authorizations, to break into Y’s house.

The food in the pantry, the underwear in the drawers, the children’s toys, the photo albums, the diaries and journals, the emails and browsing histories on computers - all would be subject to the covert pawings of agents of the state, because X happened to have spent the night there. [ 13 ] I would not be satisfied, without further information, to grant a search warrant in the above circumstances were they made out in an Information; I am not more inclined to do so in the present, much more speculative, circumstances. [ 14 ] I regard the level of intrusion possible under the draft warrant as being on a scale significantly beyond that contemplated in Thompson , which again involved only the interception of telephone calls, including potentially those of third parties unrelated to the investigation.

Overhearing of telephone conversations versus breaking and entering into a person’s home: I think different levels of intrusion, deserving of different levels of scrutiny, are involved. [ 15 ] Similarly the request in the draft warrant to be able to covertly enter and search any vehicle which the subject person has “resorted to, used, or been present at”: it would appear that the mere presence of the subject in a third party’s vehicle will render that vehicle subject to a clandestine break and enter, and subsequent search, by the police.

A third party with no conceivable connection to the subject, save for giving that person a ride, can thereby have their vehicle covertly invaded. I recognize that the privacy expectation in a vehicle is not as high as in a home. None the less, I regard the physical sanctity of a place, including a vehicle, as being considerably higher than the sanctity of a telephone conversation. [ 16 ] The specific wording of the warrant with respect to the vehicle is also of concern to me. I am not clear what it means to “resort to” a vehicle.

Additionally, allowing the search of a vehicle which the subject has “been present at” seems to suggest that if the accused walks by or leans on a vehicle, it is subject to entry and search. This seems rather over-broad. [ 17 ] In

summary, then, the clauses are of concern to me because of their potential effect on the privacy rights not of the subject, but of others. The extent to which the privacy of third parties was put in jeopardy in Thompson , namely telephone interception, was of a dramatically lesser degree than requested here, and I do not take that decision as meaning that “resort to” clauses can be used to invade the privacy of third parties to any extent desired as long as the term “reasonable grounds to believe” is included in the authorization.

______________________ Q.D. Agnew, J [1] (SCC), [1990] 2 SCR 1111. [2] (SCC), [1984] 2 SCR 145 at p. 160 (per Dickson J.)