R. v. Jonasson (T.), (1993) Manitoba Reports (2d)

R. v. Jonnason
Her Majesty the Queen

v.

Terry Jonnason (accused)

[Indexed as: R. v. Jonnason (T.)]
File No. CR 93-01-14094

Manitoba Court of Queen's Bench
Winnipeg Centre
Beard, J.
September 14, 1993

Summary:
The accused sought to quash a search warrant. The accused argued that it was not sufficient for the information sworn to obtain the warrant to say that the material to be seized was obscene, rather there had to be some description of the contents of the material on which the magistrate could make a determination as to whether the material to be seized was obscene.

The Manitoba Court of Queen's Bench quashed the search warrant.

Civil Rights - Property - Search warrants - Validity of -

Criminal Law - Special powers - Issue search warrants - Contents of information or application for issue of -

Criminal Law -Special powers - Setting aside search warrants - Grounds - Information, sufficiency of form and content -

Criminal Law - Special powers - Search warrants - Validity of - An information sworn in support of an application for a search warrant referred to obscene computer picture files and obscene animated computer picture files - The search warrant issued - The Manitoba Court of Queen's Bench quashed the search warrant, holding that the information was not sufficient, because it did not contain any description of the contents of the picture files upon which a magistrate could decide whether the contents of the picture files could be obscene.

Cases Noticed:

R. v. Johnson & Franklin Wholesale Distributors Ltd. (1971), 3 C.C.C.(2d) 484 (B.C.C.A.), consd. [para. 3].
R. v. Johnson & Franklin Wholesale Distributors Ltd. (1973), 12 C.C.C.(2d) 221 (B.C.C.A.), consd. [para. 3].
Times Square Book Store, Re (1985), 10 O.A.C 105; 21 C.C.C.(3d) 503 (C.A.), appld. [para. 4].
Southam Inc. v. Hunter, (1984) 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; (1984) 6 W.W.R 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd. to [para. 4].
R. v. Comic Legends (1987), 83 A.R. 107; 40 C.C.C.(3d) 203 (Q.B.), consd. [para. 6].
R. v. Church of Scientology of Toronto and Zaharia (1987), 19 O.A.C. 321; 31 C.C.C.(3d) 449 (C.A.), refd to [para 8].
Statues Noticed:
Criminal Code, R.S.C. 1985, c.C-46, s.487(1) [para. 2].
Counsel:
George Dangerfield, Q.C., for the Crown;
Timothy J. Killeen, for the accused.
This case was heard before Beard, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgement on September 14, 1993.
[1]
BEARD, J.:-- The accused has applied for an order to quash a search warrant issued in this matter by a magistrate on May 19, 1993. The issue is whether the information to obtain the search warrant contained sufficient information to allow a search warrant to issue. More specifically, the accused argues that it is not sufficient for the informant to say that the material to be seized is obscene. Rather, he argues that there must be some description of the contents of the material on which the magistrate can make a determination as to whether the material to be seized is in fact obscene.

[2]
The search warrant in this matter was granted pursuant to s.487(1), (formerly s.443(1)) of the Criminal Code, which states:

487(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
(a)
anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,
(b)
anything that there is reasonable grounds to believe will afford evidence with respect to the commission of an offence against this Act or any other Act of Parliament, or
(c)
anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant,
may at any time issue a warrant under his hand authorizing a person named therein or a peace officer
(d) to search the building, receptacle or place for any such thing and to seize it, and
(e)
subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with s.489.1."

[3]
This issue was considered by the British Columbia Court of Appeal in R. v. Johnson & Franklin Wholesale Distributors Ltd. (1971), 3 C.C.C.(2d) 484 (first decision), and (1973), 12 C.C.C.(2d) 221 (second decision), which case was referred to by the Crown. In the 1973 case, the British Columbia Court of Appeal held that it was not necessary for the magistrate to be satisfied that there were reasonable grounds for the magistrate to believe that the things which were the object of the search were obscene.

[4]
This issue was again considered in Times Square Book Store, Re (1985), 10 O.A.C. 105; 21 C.C.C.(3d) 503 (C.A.). In that case, the Ontario Court of Appeal held that the R. v. Johnson case was no longer correct in light of the comments of the Supreme Court of Canada in Southam Inc. v. Hunter, (1984) 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; (1984) 6 W.W.R 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, a case which considered the constitutional validity of the search and seizure provisions of the Criminal Code in light of the Charter of Rights and Freedoms.

[5]
Cory, J., in the Re Times Square Book Store case, went on to provide a summary of factors which he felt should be considered when determining whether a search warrant should be issued for the seizure of obscene material, and if the warrant is issued, whether it is valid (pp.513-514 (C.C.C.)):
(1) Neither the material in support of the application, nor the warrant itself, need be a legally-crafted document. Due allowance can be made for the material and warrant on that score.

(2) In spite of the foregoing, the warrant should be reasonable specific when dealing with books and magazines. sexually explicit material, however distasteful it may be, so long as it is not obscene, is entitled to the same protection as other forms of expression. Section 443(1) of the Criminal Code and s.8 of the Charter were primarily designed to protect the ordinary citizen interested in the gathering and dissemination of information and ideas and the ordinary bookseller who pursues the same goals. It is only incidentally that the provisions of the Charter and the Code may, on occasion, appear to act as a shield and shelter for the pernicious purveyor of pornography.

(3) Neither the material presented in support of the application for a warrant nor the warrant itself need specify the title of each magazine or book sought to be seized. For example, if one of the magazines is described by name and is said to depict men and women engaged in sexual activities combined with scenes of violence and cruelty, that would be sufficient to permit the seizure of that magazine. If the information and warrant went on to say that there were other magazines in the same location in the the premises as the named magazine that, by their covers, appeared to depict scenes of sexual activity combined with violence and cruelty, then that would be sufficient to justify the seizure of those other magazines in that location. Such a reference would sufficiently identify the magazines to be seized. At the same time, the description of the acts depicted would accord with the definition of `pornography' in the Criminal Code and thus could indicate to the justice of the peace that the magazines were probably obscene.

(4) In sum, the material must satisfy the justice of the peace, acting as an independent judicial officer, that on the balance of probabilities all the materials sought to be seized are obscene and that they are located within the premises to be searched.

(5) The warrant itself must set out with the same particularity as the information used in support of the application the items which may be seized.

(6) Lastly, it must be remembered that the role of the motions court judge hearing an application to quash a search warrant is limited. He may not substitute his opinion as to the sufficiency of the evidence for the that of the justice of the peace. Rather, the motions court judge must do no more than determine two issues. First, whether or not there is evidence upon which a justice of the peace, acting judicially, could determine that a search warrant should be issued; and secondly, whether the warrant contained sufficient particulars of the items to be seized that it could not be said that the discretion of the police officer was substituted for that of the justice of the peace as to the items to be seized.

[6]
The Re Times Square Book Store case was followed in the case of R. v. Comic Legends (1987), 83 A.R. 107; 40 C.C.C.(3d) 203 (Q.B.), where the judge held that this decision was more in accord with the Hunter case than R. v. Johnson.

[7]
I am persuaded that the current state of the law is now that set out in the Re Times Square Book Store case, and I am therefore following and applying that decision.

[8]
In the Re Comic Legends case, the judge reviewed the scope of review on a certiorari application (that is, a motion to quash) which was considered at length in R. v. Church of Scientology of Toronto and Zaharia (1987), 18 O.A.C. 321; 31 C.C.C.(3d) 449(C.A.). In that case, the court concluded at p.494 (C.C.C.):
The appropriate test on a certiorari application for the judicial review of a search warrant is whether there was evidence upon which the justice of the peace could determine that a search warrant should be issued. It is not the task of the reviewing judge to weigh the evidence or to determine whether the justice should have been satisfied by the sworn information.
[9]
In this case, the relevant portions of the information sworn in support of the application for the search warrant states as follows:
4. That between January 5, 1993 and May 5, 1993, investigators found that obscene computer picture files and animated computer picture files were made available to regular users once a $70 access fee was paid.

5. That investigators obtained access, the cheque made out to and cashed by Terry Jonnason.

6. That investigators downloaded obscene computer picture files and obscene animated computer picture files from `Info-source Canada' during the course of this investigation.

[10]
Nowhere in the application is there any type of a description of the contents of the picture files upon which the magistrate could make a decision, independent of the opinion of the police officer who swore the information, as to whether or not the contents of the picture files could be obscene.

[11]
As there was no information before the magistrate upon which she could base a decision as to whether the contents of the picture files were obscene, I find that the information was not sufficient to justify the search warrant.

[12]
The defence motion is therefore granted, and the search warrant is quashed.

Order accordingly.