Crown appeal from a s. 8 breach finding in relation to a search warrant. The ITO requested a 48 hour period during which the warrant could be executed, given that drugs may come and go from a residence. Trial judge found that this resulted in an “anticipatory warrant”, as the officer’s words suggested that he did not have grounds to believe that drugs were present at the time that the warrant issued.

Held: Appeal allowed, new trial.

As per Brooks (2003) 178 CCC (3d) 361 (ONCA), an anticipatory warrant is one “that may only be executed upon the fulfillment of certain pre-conditions.” No such terms were stipulated in the warrant. The trial judge erred in finding that the warrant did not comply with s. 11 CDSA.

K. Fagan, Defence Counsel