Witness for the Prosecution
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IMDB rating: 8.10 Plot: Esteemed criminal lawyer Sir Wilfrid Robarts has just returned to practice after suffering a heart attack and is supposed to be on a diet of bland civil suits. But the case of Leonard Vole, a charmer accused of murdering a rich middle-aged widow, proves irresistible — particlularly when Sir Wilfrid meets the accused’s wife, the remarkable Christine Vole. Christine will appear as a witness: not the defense, but for the prosecution. |
Actors: Power Tyrone,Laughton Charles,Williams John,Daniell Henry,Wolfe Ian,Thatcher Torin,Compton Francis,Tonge Philip,Farnum Franklyn,Kenny Colin,Drama,Thriller,Mystery,
Is evidence found by a search warrant in Canada still admissible despite the wrong address on the warrant.?
While in court I noticed a Lawyer view a copy of a disclosure with his client. To my surprise and confusion, when the defendant noticed that the address on the warrant was wrong, and brought this to the attention of his lawyer concerning the validity of the warrant and any Charter of Rights implications surrounding a defence or Ha-beaus Corpus rights for his release from custody. The lawyer merely corrected the address in front of the Judge, Prosecutor and Court, and with a condescending shrug ignored him. I’m tired of this sycophantic attitude I’ve noticed of some defence lawyers who seem to forget that in the adversarial legal system (not justice system) of our courts in our Country- a vigorous defence is still expected, notwithstanding Legal Adi’s ability to inadequately compensate. I’m reluctant to contact the Law Society, but I’m wondering who else may suffer . Is there any professional misconduct that is seemingly being ignored because of the disparity between legal aid fees not representative of the expectations, the working poor, can expect from legal counsel. The behaviour I witnessed at this bail hearing (which was denied) involves more than just the validity of the search warrant. In fact this lawyer did nothing to correct the prosecutions attempt to have the defendants, "show cause" at this Kangaroo’s Court. It was the Judge himself that stepped in and "Counselled" the guy, who was scratching his head while terms like, "reverse onus" was certainly confusing him.
If the mistake was a clerical error, or falls under the "made in good faith" category, is this the end of it. I realize anything seen in open view once the police are inside is admissible. What about evidence uncovered that was not the items listed on the warrant and found only by benefit of vigorous disruption and destruction of a locked office desk drawer. There was no, "hot pursuit", life endangerment or injury or possible destruction of evidence issues that would allow for a search without warrant. Any thoughts, opinions or experiences would be greatly appreciated.
An error in the address would not necessarily invalidate the warrant. Yes, in most cases, facial validity issues can invalidate a warrant but at the same time a warrant does not need a specific address to be valid (one can’t get an address on a field, on a house in a rural area with no definable street address or even on a dumpster or container).
If anything, it should have been the subject of a voir dire to determine the validity of the warrant. The minimum standard used for the warrant though is "would the information contained in the warrant still provide an adequate indication of the location to be searched". Also, one would have to take a look at the ITO (Information To Obtain the warrant) to determine if the error on the warrant form was just a clerical or transcription error or if it was an error that was continued throughout the ITO and warrant process. If it was a good faith error then there would be no reason to overturn the warrant.
As far as other items seized through the warrant, be they items in plain view or items from a locked cabinet, if they have the warrant and it remains valid then they do have the right to look where ever things named in the warrant may reasonably be found. If my warrant is to uncover rings and stolen jewelry then I am reasonable in opening, by force even, a locked cabinet or drawer as they could be in there. If, on the other hand, my warrant is for a stolen TV then I’m not justified in opening the locked drawer or cabinet. That is why, if they are looking for a stolen TV, they may also include smaller items like the remote control for the TV or for the owners manual as that will allow entry into smaller places.
If, in your example, the warrant is tossed though then the voir dire will determine if all of the evidence should be tossed as well or if the crime is of such seriousness that the tossing of the evidence will bring the administration of justice into greater disrepute then the error of the warrant (ie: is it better to let a murderer off due to a faulty warrant or is justice better served by allowing the warrant, with sanctions, and still getting the murderer).
Randy B | Jan 03, 2010
Any legal document with a factual error on it is null and void.
If the DEFENDANT’S attorney deliberately screwed over his own client like that and you are willing to testify before the Bar in his disbarment hearing… REPORT HIM! Better yet, contact the poor schmuck and have HIM file the complaint with the Courts AND the Bar.
Here’s the fun part…what the defendant’s lawyer did was a CRIMINAL OFFENCE. It is Illegal to tamper with Court Documents.
As soon as the defendant mentioned that the address on the Warrant was wrong, he should have moved for an immediate Dismissal of Charges, citing the incorrect address on the Warrant.
As much as I LOVE to see people like this guy get shafted…YOU might be next!
Who knows…he might actually be stupid enough to claim the evidence when the case is tossed…meaning he can be arrested for possession of it at the station! 
Good Luck!
PS: If you are a Lawyer, or are planning to become a Lawyer, you have an Ethical Duty to report this sort of behaviour to the Society.
jcurrieii | Jan 01, 2010
An incorrect address on the search warrant does not automatically equal the exclusion of evidence. For example, the warrant may have been ordered for the correct address, but a clerical error lead to the incorrect address being written on the warrant.
In any event, even if it was found that section 8 Charter rights were breached because of the incorrect address, the court would have to consider three things before throwing the evidence out under 24(2):
The fairness of the trial
The seriousness of the Charter Breach
Whether the exclusion of the evidence would bring the administration of justice to disrepute.
It would appear that the defence lawyer holds the opinion, having had full disclosure to the case, this wouldn’t be able to pass the 24(2) test.
Tdot | Jan 01, 2010
Tdot is correct. Furthermore, although clerical errors are a sign of bad administration, the spirit of the warrant would likely be upheld, depending on the error. In most cases, the address will only be one part of the identification of the warrant.
Ken | Jan 01, 2010
Ronald Lynch