A warrant by any other name doesn't smell as sweet

WHAT'S IN A NAME?

The word, warrant, carries with it a gravitas. Nothing disrupts  a search like asking, "Show me your warrant," or "The warrant's defective."

Which is why, when the word is thrown around -- "You're wanted on a warrant" -- people tend to pay attention. Overall, this is a good thing: the warrant embodies due process. This means there's an information that has been sworn by someone with knowledge, and it is sworn before a public official, called a Justice of the Peace, that there is enough evidence to substantiate an arrest. This is important because due process is at the heart of what we know as "justice" and the "rule of law." Without it, we as a society resolve there can be no justice.

Which brings me to what I really want to talk about: the difference between warrants and how important this aspect of due process is. I recently had charges withdrawn against a client whose right against unreasonable search or seizure was violated because the search was executed under a warrant that had no search powers.

WHERE DO WARRANTS COME FROM?

Warrants are issued by the state authorizing the arrest or detention of a named person (including corporations). Arrest warrants are typically issued under the Criminal Code, but that's not true of all warrants. There are other bodies of legislation that have the power to issue warrants for arrest and apprehension, including recent new warrants under the Truth in Sentencing Act, the Provincial Offences Act or  the Ontario Society for the Prevention of Cruelty to Animals Act. One such piece of legislation is the Child and Family Services Act (CFSA), which governs child protection in the Province of Ontario, and which was the source of the warrant in the case I just mentioned.

CASE IN POINT

Under section 40 of the CFSA, a Justice of the Peace can issue a warrant for the apprehension of a child if a child protection worker swears an information that the child is in need of protection on reasonable and probable grounds. There are no search powers under this warrant. The warrant is for the apprehension of the child only as long as there are RPG and only as long as they are in the child's best interest. This test permeates the CFSA and is the driver of the warrant that is issued, and so to execute any other powers under this warrant exceeds its power. Exceeding its power invalidates the fruits of the investigation.

In my case, a youth was named in a CFSA warrant and the warrant was issued for his apprehension. The police located him in the wee hours of the morning. This is important because the officer noted the time as being indicative the "child was in need of protection." Subsequently, the child refused to go with the officers. The officers apprehended the child. And then, mistakenly, in their words, "incident to arrest", the officers searched the youth. Drugs were subsequently located. The youth was arrested and processed. It is interesting to see how the officer noted the "need of protection" test but then conflated it with an "arrest" that authorized him to search. 

A search incident to arrest can only occur where the officer has reasonable and probable grounds that evidence is on the accused's person. The search is executed in order to preserve evidence. A search incident to arrest is also conducted for the protection of the officer, as the accused might possess weapons. But without reasonable and probable grounds -- a lawful arrest -- a search would not be reasonable within the meaning of the Charter. In this case, there were no RPG that the youth had been involved in crime, nor that he possessed any weapons that would endanger the officer. The charges were withdrawn accordingly.

I think this case is a good example to counsel dealing with different types of warrants to pay attention to the details. Just because there's a warrant involved, doesn't mean it has the same powers across the board. A warrant by any other name... is not unexpectedly legal.

 

 

Pitfalls of Character References: R v Lavigne 2015 ONCA 915, SCC refused Leave to Appeal May 26, 2016

I was junior counsel on Jaqueline Lavigne's application for Leave to Appeal a decision of the Court of Appeal for Ontario to whom she had originally appealed her conviction for sexual intercourse with a 17 year old complainant and 13-month sentence. The ONCA dismissed her appeal last December finding that the trial judge made no reversible error. Six months after we filed our Leave to Appeal, the Supreme Court of Canada upheld the Court of Appeal's dismissal.

An important aspect of the appeal was the trial judge's treatment of 78 "very impressive character reference letters filed on sentencing."(para 9 of the ONCA judgment). We argued the trial judge treated the letters as a sword when they were meant to be a shield in mitigating the sentence.  The Court of Appeal did not address the nature of the letters themselves, but dismissed the appeal saying that the sentence of 13 months was not "manifestly unfit" and upheld the trial judge's view that teachers are in a special position of trust and authority. The letters themselves were evidence of that. I should add here that character references are an integral and oft-used tool in sentencing. The Ontario Court of Appeal and now the SCC have diminished them.

No one disputed the fact that teachers hold a unique position of power in society. What we disputed was the fact that the trial judge could invert the purpose of the letters so casually. In our submissions we drew attention to the fact that this would put a chilling effect on the defence bar to bring character references in order to mitigate sentence. We also pointed out that this somewhat tilts the playing field  in favour of the Crown because not only do they have the benefit of Victim Impact Statements, but now they also stand to benefit from the legwork of the defence to obtain letters of reference that can now be turned on their heads.

The Supreme Court of Canada did not publish reasons as to why they refused our Leave to Appeal, which they typically do not. So all we're left with is "writer beware": bring character references in cases where there is a socially-elevated position does not characterize your case, and beware the pitfalls of bringing character references at all. As one sage Criminal Law Professor of mine once said - and I'm paraphrasing - "Once you put the character of the accused in play [in a trial] it's open season."

And that is unexpectedly legal.