R. v. Jonasson (T.), (1993) Manitoba Reports (2d)
R. v. Jonnason
Her Majesty the Queen
Terry Jonnason (accused)
[Indexed as: R. v. Jonnason (T.)]
File No. CR 93-01-14094
Manitoba Court of Queen's Bench
September 14, 1993
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.
- R. v. Johnson & Franklin Wholesale Distributors Ltd. (1971),
3 C.C.C.(2d) 484 (B.C.C.A.), consd.
- R. v. Johnson & Franklin Wholesale Distributors Ltd. (1973),
12 C.C.C.(2d) 221 (B.C.C.A.), consd.
- Times Square Book Store, Re (1985),
10 O.A.C 105; 21 C.C.C.(3d) 503 (C.A.), appld.
- 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
- R. v. Comic Legends (1987),
83 A.R. 107; 40 C.C.C.(3d) 203 (Q.B.), consd.
- 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
- Criminal Code, R.S.C. 1985, c.C-46,
s.487(1) [para. 2].
- 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.
- 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.
- The search warrant in this matter was granted pursuant to
(formerly s.443(1)) of the
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
may at any time issue a warrant under his hand authorizing a
person named therein or a peace officer
- 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,
- 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
- 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
to search the building, receptacle or place for any such
thing and to seize it, and
- 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."
- 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.
- 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
in light of the
Charter of Rights and Freedoms.
- 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
(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.
Criminal Code and
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
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
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- The defence motion is therefore granted,
and the search warrant is quashed.