Court of Appeal

Judge:

The Honourable Justice Cindy A. Bourgeois

Appeal Heard:

April 10, 2018, in Halifax, Nova Scotia

Subject:

Search warrants – Error on face – s. 8 Charter – s. 24(2) analysis

Summary:

The police executed a search warrant at a private residence with a clear error on its face.  Before the trial judge, the respondent argued the warrant was invalid due to the error and sought to have the evidence seized excluded under s. 24(2) of the Charter.  Both parties identified the sole issue for determination as being whether the error on the face of the warrant served to invalidate it, or it constituted a harmless typographical error.

The trial judge found the error arose due to police negligence, which rendered the warrant invalid.  After conducting a Grant analysis, the evidence was excluded.  An acquittal was entered.  The Crown appealed.

Issues:

(1)         Did the trial judge err in finding that a violation of s. 8 of the Charter occurred when a warrant with an erroneous and factually impossible time for execution was in fact executed?

(2)         Did the trial judge err in excluding the evidence obtained from the execution of that warrant, pursuant to s. 24(2) of the Charter?

Result:

Appeal dismissed.  The trial judge did not err in considering the existence of police negligence as a factor going to the warrant’s validity.  Her finding of negligence was appropriate given the record.  Further, there was no reason to intervene in the trial judge’s s. 24(2) analysis.