March 17, 2011

Defective Search Orders

Administrative Law
Inquiry and Investigations
Professional Regulation

The Health Professions Act allows for colleges to apply to the court to obtain search and seizure orders. To obtain such orders, colleges must satisfy a court that such an order permitting a search of particular premises may yield evidence of particular wrongdoing. Such applications should be based on a solid evidentiary foundation, not only because the court may demand it, but because such orders are typically obtained ex parte, i.e., without the registrant being present, and this may provide some basis for challenge to an order based on insufficient information.

The insufficiency of information used to obtain search warrants is illustrated in College of Veterinarians of Ontario v. Greenberg-Blechman, 2010 ONCJ 358 [August 23, 2010], where two non-veterinarians operated a business, “Pet Heaven” which provided pet services including in-home euthanasia services for pet owners.  Pet Heaven contracted with veterinarians to provide the in-home euthanasia service.  The College of Veterinarians of Ontario prosecuted the two non-veterinarians for unauthorized practice, specifically unlawfully providing veterinarian services and/or unlawfully holding out that they were providing veterinarian services.  The Court found both liable for bothaspects of unauthorized practice in violation of the Veterinarians Act.

In the course of the hearing, the two defendants argued that three search and seizure warrants were issued without jurisdiction due to  deficiencies in the application materials.  The defendant’s counsel sought a permanent stay of the proceedings. The Court decided that while the three warrants were issued without jurisdiction due to the many defects, that alone did not justify permanently staying the proceedings. That said, the court found serious deficiencies in the information used to obtain the search warrants. [52-67]

For example, the application attached numerous appendices without any narrative about the investigation, or the investigator’s sources, beliefs and conclusions. The application lacked intelligibility, which prevented any reader from assessing the meaning and significance of the information provided. The application did not clearly specify the actual, suspected offences. It did not explain why the applicant expected to find evidence at a residence, or in particular vehicles. The applicant failed to specify what he knew versus what he believed, and his sources of knowledge leading to a belief that evidence would be found at certain specified locations. The applicant improperly provided supplementary oral evidence of the identity of the suspects and the alleged offences. For all of these reasons,  the court considered the applications to be serious deficient to the point of having deprived the Justice of the Peace in that case of jurisdiction to issue the warrants.

College of Veterinarians of Ontario v. Greenberg-Blechman, 2010 ONCJ 358 [August 23, 2010]