2002 SKPC 50 IN THE PROVINCIAL COURT OF SASKATCHEWAN NIPAWIN, SASKATCHEWAN IN THE MATTER OF DNA WARRANT APPLICATION DATED FEBRUARY 27, 2002 AND IN THE MATTER OF SECTION 487.05 OF THE CRIMINAL CODE Gary Parker, Esq........................................................................................... Appearing for the Crown DECISION FEBRUARY 27, 2002 B. D. HALDERMAN, P. C. J. Application for DNA Warrants. 487.05 Criminal Code February 27, 2002 FROM THE TRANSCRIPT: [1] THE COURT: Now, we have number of matters, criminal matters and Small Claims matters to be dealt with this afternoon. Prior to doing that, there is an application with respect to search warrant that is to be made by the prosecutor and that ought to be made in camera, and so I’m accordingly going to direct that the courtroom be cleared. It will take, think, very few moments and then people can come back in. And, Mr. Parker, as understand, the court has been the courtroom has been cleared. think this ought to properly proceed in camera and ex parte as in an ordinary warrant application. This is an application for DNA warrant? [2] MR. PARKER: That’s correct, Your Honour. It’s and I’m here simply to ask that the officer be allowed to swear the Information to Obtain the Search Warrant before you. And the reason say that is that’s been the long-standing practice and respect and understand the gist of what your protocol [[2002] S. J. 54 (Q. L.)] is trying to avoid, however my reading of the Code section and my understanding of the practice and my reading of Form 5.01 suggest that the officer has to appear before you to swear the Information to Obtain. I, after reading your protocol, thought that could instruct him to just swear the Information to Obtain before Commissioner of Oaths, but then when began reading the section and reading the form itself THE COURT: Do you see anything in the section, Mr. Parker, as opposed to the form? My reading of the various sections on warrants says that it shall be Information on oath. [4] MR. PARKER: Right. THE COURT: It’s the forms that say, “Sworn before me” which would clearly make it [6] MR. PARKER: Yes. [7] THE COURT: the judge. [8] MR. PARKER: Perhaps it’s only the form that says, “Taken before me” think is precise terminology. [9] THE COURT: Yes. [10] MR. PARKER: The if didn’t bring my Code in, and applied for s.487.05. do recall specific information on oaths but thought there was there may be another part, if could just grab it. Well, here the (inaudible). The first line says, “A Provincial Court Judge who, on an ex parte application, may in Form 5.01,” so the form is right incorporated into the section itself. guess Your Honour, to speak to the protocol for moment, which I’m assuming is sort of guideline as distinct from firm precedent, if these applications are brought in court as we’re doing now, in camera, and the tape is on, then think any concern about tainting just can’t occur and can give instructions to the members that they’re not to speak to you in terms of the grounds but rather just to ask to swear the Information. And that’s the practice I’m going to, at this time, be suggesting and intend to look into this further. sent copy of your protocol to our head office and, you know, I’ll continue to review my position and advise in due course, but when the tape is on like this what we used to tell haven’t had lot of involvement with warrants but articled with federal Justice and they ran into some trouble years ago then because the Information had to be on oath under oath and you’d learn that the police officers had talked to the judge. And so then what one practice that think went on for awhile was we instructed the officers if they give any Information to the judge, ask for the Bible and ask the judge to swear you in so that any conversation is at least provided on oath too. And, you know, don’t know what happened to that practice, if that’s what they do now or not, but think we tend to do the same by way of paper and that’s the preferred practice. In fact the section for this type of warrant says in writing, think. [11] THE COURT: Very well. Anything further on the terms of argument? [12] MR. PARKER: The only other part of the protocol that caused me concern was it appeared to me that you wanted, right in the Information to Obtain, when we wanted to execute the warrant. And the only problem with that is how do we know how long you’re going to require with the material? [13] THE COURT: Well, that’s true. My own view of that is that if there is something in general terms set out as to when and how many days it’s going to take or whether that needs to be done at night or whatever [14] MR. PARKER: Yes. [15] THE COURT: that in general terms can be set out and if it’s clear to the judge that it either needs to be happening the same day or the next day or very quickly, that needs to be in the Information. [16] MR. PARKER: see. [17] THE COURT: wouldn’t anticipate that there will be any procedural or substantive impediment to the actual issuance. But I’ve had, I’ve had an experience, for example, where there wasn’t anything put into the it was left blank as to when it was to be executed and then when the officer attended to pick it up and put that in and they attended on me, then found out number of other things just because conversations immediately take place which [18] MR. PARKER: Right. [19] THE COURT: which sort of speaks to the whole issue that dealt with and the various cases that referred to deal with. So it seemed to me that the better practice is to put as much as you can in the Information. [20] MR. PARKER: Yes. [21] THE COURT: Obviously if there’s specific problem that you can’t that the officer can’t set out with particularity when he’s going to need to do this for some good reason, then that should be set out as well. [22] MR. PARKER: Okay. THE COURT: don’t think that will turn out to be problem. [24] THE COURT: Well, understand your argument, Mr. Parker, but before you do depart, I’m of the view, for the reasons really that are set out, I’ve had occasion just to look at my computer copy of the decision that I’d handed down on the 21st of January. looked at it this morning. And I’m of the view that paragraphs 13 to 16 of the decision cover the point that you’re making. I understand -- and I did when I made the order -- that s.487.05 of the Code with respect to DNA warrants does have reference to a form and Form 5.01 which is related to that, and that’s specifically set out in the Code. And the form indicates, as you’ve indicated this afternoon, that it’s an Information that’s “taken before me”, me being the Provincial Court Judge. I’m of the view, especially because s. 487.1, which is the general warrant provision, doesn’t have a form, but even if it did have a form and it used the same words, “taken before me”, that to require that the Information be sworn before the Provincial Court Judge elevates form over substance in a significant way, particularly in the context of the concerns that I raised in that decision about the potential prejudicial or negative effects of a personal attendance before the judge. It’s my view that those potential negative effects or results outweigh any supposed requirement to swear the Information before the judge. And looking at it in terms of substance, it seems to the Court that to ask the question, “Is there any more truth in the officer’s affidavit of Information because he swore it before a provincial -- before a Commissioner of Oaths or a Notary Public,” the answer is self-evident. The oath is the oath. [25] MR. PARKER: Right. [26] THE COURT: And that’s even in light of various recent opinions by various courts about what the value of an oath is any more. [27] MR. PARKER: Sure. [28] THE COURT: But regardless of that side issue, it seems to me the oath is perfectly as valid taken before a commissioner or a notary as it is before me. It gets sworn Information before the judge, on which he or she can act, and it avoids all of the possible problems that relate to the personal attendance, and I take your point about, about the tape recording getting around a good part of that. It just seems to me that in practical terms it makes for much speedier dealing with the Information and the application if the sworn Information is delivered or faxed in secure way to the judge and then the judge can immediately deal with it and not have to have the officer come and appear at all and swear it. So my conclusion as result of having looked at the issue in some detail, before wrote the decision and in light of your submissions this afternoon, the intention is to make the protocol work in as flexible fashion as it can, not impeding the police in their legitimate role but making sure that the Court maintains its independence. And am of the view that it’s simple matter, for example, in Form 5.01, for me to cross out, “taken before me”. It’s nevertheless on sworn Information and it’s in accordance with the Code. And to deal with Informations, except in emergency situations as provided for in that protocol [29] MR. PARKER: Okay. [30] THE COURT: by way of something that’s been sworn before it gets before the judge END OF PROCEEDINGS ON TAPE RECORDER (EDITED)
An application for a DNA warrant on the basis s.487.05 (the general warrant provision) of the Criminal Code with respect to DNA warrants does not refer to a form. The applicant suggested a tape recording would avoid the potential problems in bringing the application before a Provincial Court Judge. HELD: These concerns were raised in the January 21 decision concerning potential prejudicial or negative effects, which outweigh any requirement to swear the Information before a judge. An oath taken before a commissioner or notary is as valid as it is before a provincial court judge and avoids all the possible problems that relate to personal attendance. The intention is to make protocol work as flexible as possible, not impeding the police in their legitimate role, while making sure the court maintains its independence. Form 5.01 is specifically set out in the Code. Section 487.1 does not have a form, but even if it did and used the same words 'taken before me', that would elevate form over substance in a significant way.