R. v. Koprowski (2005) BCPC 657 (Devitt J) The defendants were charged with possession of marihuana for the purposes of trafficking and the unlawful production of marihuana. The evidence against them was discovered after a search of their residence via a search warrant obtained through the procedure permitted by s. 487.1 of the Criminal Code (telewarrants). The decision highlights the importance of a detailed review of the evidence of how search warrants are obtained. When search warrants are obtained in a manner found to violate Charter rights there may well be grounds to have the evidence found during a search conducted under that warrant excluded from trial. Telewarrants and the Charter Under s. 487.1 where the police believe that an indictable offence has been committed and that it would be "impracticable" to appear personally before a justice to apply for a search warrant, an officer may submit an information to obtain a search warrant (a.k.a. an ITO) on oath by phone or by other means of telecommunication which includes written reasons why he or she cannot appear in person to obtain the warrant. The impracticability of personal appearance before a judge is a critical precondition to the validity of this type of search warrant. The ITO in this case stated that it was impracticable for the officer to appear personally because: "no Surrey provincial court judge was available and due to the travel time and distance the informant was unable to attend the Judicial Justice of the Peace Warrant Centre in person, during business hours." Therefore, the ITO appeared to comply with s. 487.1 and the search warrant was issued. However, under thorough cross-examination by defence counsel Marvin Stern, the officer who obtained the warrant admitted that he had made no effort to confirm it was factually correct that there were no Surrey judges available on that occasion and no inquiries to determine whether a Judicial Justice of the Peace could have heard his application either in Surrey or Richmond. It was only through cross-examination that the court learned that the officer's categorical statements about the impracticability of attending in person (required to get a telewarrant) were not based on any objective, reliable evidence. The court found that to be "impracticable" for an officer to appear personally before a justice to get a search warrant the circumstances creating this situation must be beyond the control of the officer and not circumstances created by his or her own lack of diligence or efficiency. Judge Devitt held that the officer's careless and casual approach to the defendants' Charter rights (the right to be free from unreasonable search and seizure and the related expectation of privacy in one's own home) constituted a lack of good faith and a serious breach of the Charter such that the search was a warrantless search and seizure. The Result Because the search was found to violate the Charter all the evidence against the defendants seized under the telewarrant was excluded from the trial and the defendants were acquitted. * To request a copy of the complete reasons for judgment in this case, please click here. Case Study Disclaimer: The case studies on this web site are intended to be illustrative of various legal situations for which Stern & Albert commonly appear as legal counsel. Every case is unique. Past results are not necessarily indicative of future results and litigation outcomes will vary according to the facts in individual cases. Back to Case Studies

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