Search Warrant Evidence

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General Principles

Communications with the justice
Any communications between the affiant and the authorizing justice cannot form part of the grounds to support the issuing of a warrant.[1]

  1. Re Worrall, 1964 CanLII 161 (ON CA), [1965] 2 CCCC 1 per Roach JA. dissenting on another issue

First-hand Observations

Information supporting a warrant that is collected by civil trespass may not invalidate a warrant. An officer can include in the ITO observations made when entering into an apartment building without permission.[1] The same goes for entering into a commercial building without permission.[2] However, an officer may not rely on information gained by peering into windows of a building that they cannot enter.[3]

The public areas of apartment buildings, such as the lobby, hallways or corridors, despite being behind a security door, are public areas to those who have implied permission to enter when they are "buzzed in".[4] There is a diminished, if any, privacy in the hallway of an apartment building.[5]

See also Reasonable Expectation of Privacy

  1. R v Laurin, 1997 CanLII 775 (ON CA) per Morden ACJO
  2. R v Arason, 1992 CanLII 1008 (BC CA) per Cumming JA
  3. Laurin, supra
  4. R v Beune, 2005 BCPC 175 (CanLII) at para 47
  5. R v Brar, 2008 MBQB 1 (CanLII) at para 44 per MacInnes J

Statement by Accused

Where the ITO contains a statement from the accused, the document must also show that the accused was properly cautioned and given a right to counsel. [1]

The statement cannot be involuntary.[2]

A statutorily compelled statement of the accused cannot be used for the purpose of an ITO.[3]

  1. R v Allen, 1995 ABCA 384 (CanLII) at para 5 per Fraser CJA
    R v Campbell, 2003 MBCA 76 (CanLII) at para 49-51 per Scott CJM
    R v Sonne, 2012 ONSC 140 (CanLII) at para 17 per Spies J
    R v LeBlanc, 2001 ABQB 721 (CanLII) per Moore J
  2. R v Ye, 2011 ONSC 2278 (CanLII) at para 40
  3. R v Powers, 2006 BCCA 454 (CanLII) per Saunders JA leave denied [2006] SCCA No 452
    R v Soules, 2011 ONCA 429 (CanLII) per LaForme JA leave denied [2011] SCCA No 375, R v Scharf, 2013 SKQB 327 (CanLII) per Danyliuk J

Criminal Records

A copy of the informer's criminal record should be included in the ITO except where it may tend to reveal the identity of the informer.[1]

Where the ITO states that the informer has a criminal record when in fact the informer was merely charged, it may be sufficient to void the warrant.[2]

There is no added value in including charges that have been stayed or withdrawn. The prejudicial effect is too great. [3]

  1. R v Johnston, 2009 ABPC 315 (CanLII) at para 44
  2. R v Sismey, 1990 CanLII 1483 (BC CA)
  3. R v Johnson 2005 BCPC 432 (CanLII) at para 8

Hearsay

See also: Hearsay

The applicant should always indicate whether they are relying on hearsay or direct knowledge.[1]

An ITO relying upon hearsay does does not exclude it from establishing "probable cause".[2]

An ITO may contain hearsay as long as it is sourced and details are given about the source so the Justice can review the source's reliability and weigh its evidentiary value. [3]

Details on the source should be used to distinguish the information from rumor or gossip.[4]

Where the hearsay source is not set out the part of the ITO may be defective.[5]

It has been recommended that where the source is the notes or reports of other officers there should be detail on how it was obtained and why it is reliable.[6] It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.[7]

It has been further suggested that where it is from a written statement of a witness, details of identity and their involvement should be provided.[8]

Whether the confidential informant was paid should be provided as well.[9]

Debot factors are to be applied when considering hearsay.

  1. e.g. see R v Nightingale, 2006 ABPC 79 (CanLII) at para 65 to 67 - officer failed to specify
  2. Eccles v Bourque, 1974 CanLII 191 (SCC), [1975] 2 SCR 739 at p. 746 ( "That this information was hearsay does not exclude it from establishing probable cause")
  3. R v KP, 2011 NUCJ 27 (CanLII) at para 83
    see also R v Philpott, 2002 CanLII 25164 (ON SC) at para 40
    R v Bryan, 2008 CanLII 2595 (ON SC) at para 81
  4. R v Allain, 1998 CanLII 12250 (NB CA) at pp. 12-13 ("As a rule, sources of hearsay information must be identified in the supporting Information. This rule is designed to enable the issuing judge to satisfy himself or herself that the information is more than rumour or gossip")
  5. R v Bui and Do, 2005 BCPC 210 (CanLII) at para 57
  6. Bui and Do at para 57
  7. R v Liang, Yeung, Zhu, Zhai, Wen, Zhou, Jiang, Cheung and Xu, 2007 YKTC 18 (CanLII)
  8. ibid.
  9. Buid and Do at para 57

Expert Evidence

See also: Expert Evidence

For expert evidence to be used in an ITO, it must contain details on the expert's qualifications and experience as well as show the methods the expert used to come to their conclusion.[1]

Where the affiant is properly qualified as an expert within the ITO, the reviewing judge may not "independently verify" the opinion.[2]

Errors in Opinion
Where the expert evidence relies on faulty facts or he gives a faulty opinion. That portion of the ITO can excised out in voir dire.[3]

  1. Criminal Code s. 487.01, Application of General Warrant, 2002 SKPC 11 (CanLII) at paras 32 to 33
    R v Morelli, 2008 SKCA 62 (CanLII) at para 122
    R v Agensys International Inc. 2004 CanLII 17920 (ON CA), (2004), 187 CCC (3d) 481 at para 44
    R v Ward, 2012 ONCA 660 (CanLII) at para 115
  2. R v Burke, 2013 ONCA 424 (CanLII) at para 23
  3. R v Mercuri, 2004 CanLII 7053 (ON SC)

Credibility

See Confidential Informers