Reforming Search and Seizure



Benjamin Goold for The Lawyers Weekly

June 4, 2010

The Supreme Court takes a hard line on the admission of faulty evidence in criminal trials.

Despite the fact that R. v. Morelli, [2010] S.C.J. 8 was only recently handed down, the decision has already attracted considerable interest from many lawyers and legal academics. Given that Morelli touches on a number of highly sensitive issues - such as the ambit of s. 8 of the Charter and the policing of child pornography - this is hardly surprising.

What is surprising, however, is just how much attention has been paid to these aspects of the decision, as opposed to what Morelli has to say about the perils of poor police work and Supreme Court's hardening attitude to admission of faulty evidence in criminal trials. In the wake of R. v. Grant, [2009] S.C.J. No. 32, the willingness of the court to take a strong stand on matters of due process and the application of s. 24(2) of the Charter is noteworthy, and likely to have a significant effect on the practice of search and seizure in Canada.

In Morelli, the accused was charged with possession of child pornography, contrary to s. 163.1(4) of the Criminal Code, after the police found obscene images of children on his computer. The computer had been seized under a search warrant following a complaint to the police by a visiting technician, who had noticed links to sites labeled "Lolita Porn" and "Lolita XXX" on the accused's browser while installing a high-speed Internet connection at his home.

Writing for the majority, Justice Fish quashed Morelli's conviction for possession on the grounds that the search warrant authorizing the seizure of the computer was improperly issued. According to Justice Fish, the Information to Obtain (ITO) that provided the basis for the warrant was "carelessly drafted, materially misleading, and factually incomplete," and invoked an "unsupported stereotype of an ill-defined 'type of offender' and imputed that stereotype to the appellant."

Justice Fish was also highly critical of the preparation of the ITO, stating that the officer who drafted it was neither "reasonably diligent nor mindful of his duty to make full and frank disclosure."

The majority's insistence that ITOs be properly drafted should be welcomed. Although Justice Fish almost certainly went too far when he claimed that it is "difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer," the fact remains that such a search represents a serious infringement of an individual's right to be secure against unreasonable search or seizure under s. 8 of the Charter. As such, it must be properly justified and there must be sufficient evidence to support the granting of a search warrant.

In Morelli, the case against the accused did not collapse due to some obscure evidential technicality, but rather because the police conducted a highly intrusive search on the basis of a poorly drafted and incomplete ITO. Like the right to silence and the right to counsel, the right to be free from unreasonable search or seizure exists to protect suspects from the dangers of self-incrimination, and to ensure that evidence obtained by the police is reliable and untainted by the problem of noble cause corruption. As tempting as it might be in cases like Morelli, we should be wary of assessing the costs of these rights with the benefit of hindsight.

Although in this instance the police did find pornographic images on the suspect's computer, what if the search had instead revealed nothing of interest? What would have been the effect on Morelli and his family? One response might be to say that child pornography is so serious a problem that security of the person should always trump individual privacy in such cases, and that it is perverse to exclude crucial evidence just because an ITO is badly drafted or incomplete.

But of course, the question then becomes, "where do we stop?" Should we overlook a failure to allow a murder suspect access to counsel simply because the police managed to extract a valuable confession? Should the right to silence be denied to those suspected of terrorism? While such analogies can be misleading - in part because they obscure important distinctions between different rights - they do help to focus our attention on importance of due process, and in particular on the need to limit the investigatory powers of the state.

Finally, there is also the question of what we should expect from our police. Given the extensive powers granted to even the most junior officers, the courts and the public should require them to act professionally and do the "necessary legwork" when it comes to the investigation of even the most minor crimes.

In Morelli, however, this was not the case. Not only did the majority find that the ITO was carelessly drafted, misleading and incomplete, but also that key facts had been omitted. Although there was no suggestion that the police set out to deliberately mislead the justice of the peace who issued the warrant, the fact that the ITO was inadequate raises a number of important questions.

First, we should ask why the police produced such a poorly drafted ITO, especially given the nature of the alleged crime. If it was the case that the investigating officers did not understand what was required to obtain a warrant, or did not know how to properly draft the ITO, then clearly questions need to be asked about the training and guidance they received. If the rules relating to the drafting of ITOs and the issuing of warrants are too complex for ordinary officers to understand, then they should be changed and simplified. If the training is inadequate, then it should be improved.

Second, we should ask whether the poor police work at the heart of Morelli is symptomatic of a broader institutional malaise. According to the president of the Criminal Lawyers Association, in recent years search warrant practice in Canada "has been getting progressively sloppier." If this is true, then something needs to be done to reverse the trend. Although Morelli will no doubt lead to some changes in the practice of search and seizure, it would be better if reform were to come from the police rather than be imposed from on high by the court. Given that the Supreme Court has made it clear that s. 24(2) of the Charter does not exist to punish the police, we must ensure that we avoid a repeat of the situation in Morelli, both for the sake of suspects and the victims of crime.

Benjamin Goold is a professor at the University of British Columbia Faculty of Law. In addition to his interest in criminal law and procedure, he also writes on police surveillance, privacy law and the relationship between security and human rights.
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