A search warrant for a residence was granted under the Controlled Drugs and Substances Act (“CDSA”), section 11. The warrant was to search for cocaine, money, weigh scales and other drug trafficking paraphernalia. The warrant permitted execution over a 48-hour period. In the information to obtain (“ITO”) sworn in support of the warrant, the affiant police officer indicated that she believed that the extended period for execution was necessary because drug traffickers’ supply of narcotics is variable. The officer stated that she planned to execute the warrant when the information available, including surveillance, suggested the highest probability of a drug seizure (when certain persons and a vehicle were present at the location to be searched).
Section 11 of the CDSA requires reasonable grounds to believe that a controlled substance is currently in the place to be searched. Defence counsel argued that the ITO indicated that the officer did not believe that there were controlled substances in the residence when the warrant was authorized and, accordingly, the search warrant ought not to have been issued. Defence counsel characterized the warrant as an “anticipatory warrant”. The trial judge had accepted this argument and refused to admit the evidence which had been obtained upon execution of the search warrant. The Court of Appeal reversed that decision and ordered a new trial: 2015 ABCA 33 (CanLII).
The Alberta Court of Appeal, relying upon the Ontario Court of Appeal decision in R v. Brooks, (2003) 2003 CanLII 57389 (ON CA), noted that an anticipatory warrant is one which can only be executed after certain pre-conditions had been fulfilled (such warrants may be validly issued under the Criminal Code, s. 487.01). The Court of Appeal noted that the warrant that had been issued in this case did not require any specific pre-conditions to be met prior to execution. Rather, it authorized execution at any point in the 48 hour time window, regardless of whether or not police took any of the steps which the affiant had described in her ITO. Further, the Court of Appeal found that there were clearly reasonable grounds to believe that controlled substances were in the residence at the time the ITO was issued. Accordingly, the Court ruled that the trial judge was in error when he found the search warrant defective.