In Express Transaction Services Inc v Canada (Attorney General),1 the Quebec Court of Appeal reiterated that an application challenging the validity of a search warrant’s issuance can only be used to question the jurisdiction of the issuing judge, and not the legality of the information relied upon. In this decision relating to the challenge of a search warrant issued for potential violations of the Competition Act, the court also stated that when the legality and/or falsity of the information relied upon to issue a search warrant is questioned, the challenge should be brought before the Superior Court, through the application for a Canadian Charter of Rights and Freedoms remedy.
Express Transaction Services Inc., a Montreal-based telemarketing company, and several of its affiliates were accused of committing various criminal offences under the Criminal Code2 and the Competition Act3 for possible telemarketing fraud. Charges were brought following a vast investigation led by the RCMP and the Competition Bureau.4 During the course of the investigation, 10 search warrants had been issued on the basis of an RCMP officer’s affidavit. This affidavit referred, among several sources, to information obtained by RCMP officers during a search of garbage bags conducted behind the appellants’ building.
The appellants had first petitioned the Superior Court of Quebec with an application under s. 24(1) of the Charter. They mainly argued that the search and seizure of the garbage bags violated their right to be secured against unreasonable search or seizure (s. 8 of the Charter). Accordingly, they asked that the warrants be quashed and the searches and seizures annulled. In 2008,5 the Superior Court had dismissed this application on the grounds that the judge had every reason to issue the warrants given the affidavit presented by the RCMP and the appellants retained no interest of privacy in their abandoned garbage.
The Court of Appeal repeated the well-established principle that an application challenging the validity of a search warrant’s issuance has a limited scope, and can only be used to question the jurisdiction of lower judges or a jurisdictional error they committed.6 In the case at hand, the court confirmed that the justice of the peace who issued the warrants had acted within his jurisdiction since the information used to issue the warrant provided ample grounds to believe an offence had been or was committed.7
The court also noted that the proper vehicle to challenge the legality of the information relied upon to issue the warrants is an application for a Charter remedy, and not a certiorari application. Such challenges fall under the jurisdiction of the Superior Court, and cannot be brought in front of the justice of the peace called upon to issue the warrants. Even if there is no right of appeal of such judgment, the court would have found that the search did not amount to a violation of s. 8 of the Charter, since any privacy interest the appellants may have had in the documents found had vanished when the documents were abandoned and placed for collection in the common unlocked garbage bins adjacent to a passing street.
This decision clarifies the procedural vehicles that should be used to contest the validity or legality of search warrants that could be issued under s. 487 of the Criminal Code for offences created by the Competition Act.
Rémi Weiss, articling student, assisted in preparing this legal update.