InR. v. Bhatti,1the Court of Appeal for Ontario considered whether police execution of a search warrant infringed an accused's right to be free from unreasonable search and seizure under s. 8 of theCharter. On an appeal by the Crown, a majority of the Court of Appeal held that the police did not breach s. 8 and, even if they had, the evidence obtained should not be excluded from the accused's trial under s. 24(2). The dissenting Justice disagreed, finding the warrant was unambiguous and had been exceeded by the police in an manner that resulted in a serious breach of s. 8. The strong dissent by Pomerance J.A., along with the important issues raised (albeit in novel circumstances), suggests that the case may ultimately be decided by the Supreme Court of Canada.Bhattireflects how challenges to the execution of warrants depend heavily on context ' particularly how closely police conduct fits with the plan and scope originally authorized by the court. The decision also reflects differing judicial views about how much latitude ought to be given to police in the execution of warrants.
Background
The Respondent's fiancé was murdered outside their home, and the police received confidential information that the Respondent ' who was believed to be a high-level drug dealer ' knew who the assailants were and intended to retaliate. While investigating the murder, the police obtained a warrant to detain the Respondent to search him and his immediate surroundings for a specific phone/device associated with a specific number. The Respondent was not a suspect in the murder investigation and was never accused of murdering his fiancé, but the police believed his cell phone contained evidence relevant to who killed her. Among other things, the warrant read as follows:
- "For the purpose of this warrant, "the device" is the one associated to the phone number XXX-XXX-XXXX."
- "Peace officers will search Ali Bhatti and his surrounding area, for his cellular device (if Ali is in possession of multiple cellular devices, these will be seized only to determine which device is associated to the phone number XXX-XXX-XXXX any further analysis of any device, other than the one which is the target of this warrant, will not be analyzed further without separate judicial authorization)."
- "Once the cellular device has been seized, Ali Bhatti will be released from this detention, unless he is subject to arrest or further detention unrelated to this General Warrant."2
The police executed the warrant during a roadside stop. They rejected the Respondent's offer to retrieve the phone once he got out the vehicle, and opened the driver's side door of his car. From the door's...
