Non-Disclosure in an Information to Obtain an Entry Warrant

The Dispute

A homeowner learned that someone had used the municipality’s website to report a house addition, a pool, a garden suite and a basement suite built without permits. The homeowner treated the report as malicious, said it came from a former tenant with a grudge, and would not let inspectors in. Bylaw officers arrived with police and a warrant, photographed the property, and those photographs became most of the evidence behind the charges.

The Parties’ Positions

In the Provincial Court of British Columbia the owner applied to exclude the evidence gathered during the search, contending that the Information to Obtain omitted what the affiant knew about the complainant. The complainant had occupied a suite in the residence, had fallen out with the owner and had been evicted, and none of that reached the issuing justice, who could not, the owner submitted, weigh the reliability of the report. That was a sub-facial challenge, going behind the document to test the reliability of its contents, and the owner challenged the warrant on its face as authorizing entry across a fifteen-day window.

The municipality resisted exclusion on every ground, submitting that even with the passages referring to the report excised, the remaining material could still have supported the warrant. It relied on section 16 of the Community Charter, which authorizes a municipality to enter property to inspect and determine whether all regulations, prohibitions and requirements are being met. Its written submission put the threshold as “reasonable grounds to enter onto a private Property to determine compliance” rather than reasonable grounds to believe an infraction had occurred, and it conceded that access had to be necessary for inspection.

The Court’s Decision

The court began from the presumption that a warrant is valid unless the party challenging it proves that it could not have issued, which put the onus on the owner. On the disclosure objection the court accepted the owner’s submission, holding that where the source of hearsay is known, and information going to that source’s credibility is known with it, it should be provided, and here it was not. The court found no attempt to deceive and accepted that the affiant had thought the relationship irrelevant to the question of unpermitted work.

The omission nonetheless did not defeat the warrant, because the court tested the record both ways against the standard in R. v. Araujo, asking whether there was reliable evidence on the basis of which the authorization could have issued. Adding the material would not have prevented issuance, since what established a motive to lie also placed the complainant in the residence with the opportunity to observe. Excising the report would not have prevented it either, because the aerial images and the owner’s own emails to bylaw officers remained. The court found the fifteen-day window not unreasonable, since a warrant covering a period authorizes only one entry, and found no breach of section 8 of the Charter, so the application was dismissed and the search evidence stood for use at trial.

Key Lessons for Property Owners and Bylaw Enforcement Officers

• Record what is known about a complainant before swearing an Information to Obtain. The court held that where the source is known, information going to that source’s credibility should be provided, and an affiant’s view that it is irrelevant does not answer the requirement.
• Keep the sworn document and the recollection of the visit consistent. The affiant’s testimony that no construction was ongoing did not match the Information, and although the court found the discrepancy immaterial here, differences of that kind are what a sub-facial challenge in a municipal bylaw prosecution is built on.
• Ground an application to enter on material that stands independently of the complaint. The warrant survived the excision of every reference to the report because the aerial images and the owner’s own correspondence remained, and the statutory threshold is access necessary to inspect and determine compliance.
• Expect an execution window to be measured against what the entry required. The court held that a warrant covering a period authorizes only one entry, so fifteen days was not unreasonable where the attendance had to be planned, and the onus lies on the applicant.

This ruling decided the admissibility of the search evidence on the record before the court. A similar challenge may resolve differently.

ATAC LAW represents property owners and municipalities in bylaw enforcement prosecutions and in disputes over construction permits.