R. v. Gallinger and Parks: The Issuance of the Telewarrant

This is the second of three blog posts on the decision of Justice Heather Perkins-McVey in R. v. Gallinger and Parks. The case, which was reported in the Ottawa Citizen, involves an application by the accused Mr. Parks for the exclusion of various items found at his home following the execution of a search warrant.

I have broken the discussion of this case, which provides an excellent review of the law of search warrants, into three separate blog posts. This post concerns the telewarrant which was issued authorizing the search.

Facts (pertaining to the telewarrant)

This decision involves the preparation of an information to obtain a search warrant based on information provided to Ottawa police from two confidential informants. The affiant officer testified that he began preparing the ITO on January 27, 2011, which was the day he received information from CI #2 and determine that there were grounds to seek the warrant.

On February 4, 2011, the officer attended at the Ottawa Courthouse. He was advised that the Justice of the Peace was backlogged and would be unable to review the warrant that day. The officer then returned to the station and a decision was made to seek a telewarrant. A Telewarrant Fax Contact Form was faxed to the telewarrant centre at approximately 4:43pm with the following reason: “This search warrant is for firearms. As such, I feel that there is a substantial risk to public safety and that matter should be dealt with as soon as possible” (para 29)

The warrant was returned signed by a Justice of the Peace at 5:15pm. A search of Mr. Parks’ residence was authorized between 5:00pm and 8:59pm. The search was conducted and the following was found: a Beretta handgun, six rounds of .22 calibre ammunition, a Taser gun, 2×12 gauge shotgun shells, and a quantity of Oxycocet pills.

The Law Pertaining to Telewarrants

The law pertaining to when telewarrants may issue is set out in s. 487.1 of the Criminal Code:

487.1: Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication.

The court goes on to explain at paras. 56-7 that a court should assess “time exigencies in relation to the urgency of resorting to the exceptional measure of a telewarrant”; and that where there is no foundation for the issurance of the telewarrant courts have found the search to be warrantless and in breach of s. 8 of the Charter.

Analysis

Justice Perkins-McVey had two major concerns with the issuance of the telewarrant. The first related to the timing of the request. The officer’s evidence was that he felt there was requisite grounds to seek the warrant when he received information from CI #2 on January 27, 2011, which is when he began to prepare the ITO, however it was not completed until February 4, 2011. The only explanation the officer could provide for this was that he was busy with other files and didn’t have a chance to work on it during that eight day period. On this issue the court commented at para. 65 “I do question how the situation all of a sudden becomes urgent just hours after leaving the courthouse except that urgency is necessary to get a telewarrant”.

The second concern was the lack of apparent effort to submit the warrant for review by a Justice or a Justice of the peace in-person, as is normal procedure. The officer testified that he was unsure if he made it clear to the Justice of the Peace that it was urgent and was for a firearm and that he did not attempt to find another judicial officer, such as a Judge, to review the warrant.

The court held at para. 66:

I find that the legislative provisions were not followed and no do the circumstances reflect that it was impracticable to appear personally before a Justice. Specifically the telewarrant should not have been granted, as the urgency and availability components of the test of practicability have not been met.

As a result of this finding the warrant was not a valid search warrant and that the search of Mr. Parks’ home was warrantless and in breach of s. 8 of the Charter. I will review the court’s s. 24(2) analysis, in which the evidence was excluded, in a later blog post.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.