Information to Obtain a Judicial Authorization

From Criminal Law Notebook
This page was last substantively updated or reviewed October 2022. (Rev. # 95310)

General Principles

The affiant police officer's role is to provide a "factual foundation" to justify the issuing of a warrant.[1] The officer has an obligation "to make full and frank disclosure of material facts, avoid boiler plate language and, whenever possible, obtain an affidavit directly from those with firsthand knowledge."[2] A failure in these duties does not necessarily invalidate the warrant.[3]

The authorizing justice's job is to "determine whether there are reasonable grounds to believe that the articles in question will afford evidence with respect to the offence". This suggests only that the evidence "which would be relevant to the issue, and would be properly tendered as evidence in a prosecution" of the offence.[4]

The need for a judicial authorization aims to prevent unreasonable searches. A judicial officer may independently weigh the conflicting interests of the private individual and the state's interest to investigate.[5]

Establishing "credibly based probability" in an ITO requires it include:[6]

  1. sworn evidence sufficient to establish reasonable grounds for believing the offence had been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specked place[7]
  2. that it as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the “specificity and legal precision expected of pleadings at the trial stage."[8]
  3. the affiant’s reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant’s belief[9]

It is not necessary that the police demonstrate that the evidence sought will be sufficient to prove the offence.[10]

  1. ↑ R v Knight, 2008 NLCA 67 (CanLII), 241 CCC (3d) 353, per Welsh JA leave refused, at para 32 ("It is the role of the police submitting the Affidavit to provide the factual foundation for issuance of the warrant")
  2. ↑ R v Fan, 2013 BCSC 445 (CanLII), per Brown J, at para 15 citing R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at paras 46 to 49
  3. ↑ See Judicial Authorization Standard of Review
  4. ↑ R v Worrall, 1964 CanLII 161 (ON CA), 2 CCC 1, per Porter CJ
  5. ↑ Fan, supra, at para 14 ("The process of prior authorization ... provides an opportunity to assess and weigh the conflicting interests of the state and the individual in order to ensure that an individual’s right to privacy is breached only when the interests of the state are demonstrably superior.")
  6. ↑ R v Morris, 1998 CanLII 1344 (NSCA), 173 NSR (2d) 1 (CA), per Cromwell JA (3:0), at para 31br>
  7. ↑ Sanchez, supra, at p. 365
  8. ↑ Sanchez, supra, at p. 364
  9. ↑ R v Yorke, 1992 CanLII 2521 (NSCA), 115 NSR (2d) 426 (CA), per Roscoe JA (3:0) affd 1993 CanLII 83 (SCC), [1993] 3 SCR 647, per La Forest J (4:1)
  10. ↑ R v TK, 2013 MBQB 114 (CanLII), per Menzies J, at para 11
    Worrall, supra

Basic Elements

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include “every minute detail of the police investigation”. [1]

Where the judicial officer is concerned over conclusory language on material issues, the officer may ask for the facts upon which the conclusion is made.[2]

Facial Validity

The date, place and time of the authorization must be present on the warrant to be valid.[3]

An unsigned affidavit supporting a wiretap warrant is not necessarily fatal to the application.[4]

Drafting Quality

Given that ITOs are drafted by police officer typically before all the evidence is known or without legal advice, the ITO need not have the level of quality of pleadings.[5] Officer’s generally speaking are not held to the same drafting quality as counsel.[6]

An ITO should be written and read in a practical, non-technical, common-sense fashion.[7]

The use of boilerplate or conclusory language may render the ITO insufficient.[8]

Inquiry by Justice

A justice has no obligation to make inquiry of the affiant into the grounds of his belief.[9]

Organization and Length

An issuing judge or justice is entitled to reject an ITO on the basis of it being too lengthy and disorganized.[10] However, as a reviewing judge, there is no rule against lengthy ITOs or simply poorly drafted ITOs. The test should always come back to the question of whether it contains sufficient grounds [11]

Standard of Proof

The standard of proof to establish reasonable grounds or "reasonable belief" in support of a search warrant is one of "reasonable probability."[12]

  1. ↑ CBC v A-G for New Brunswick, 1991 CanLII 50 (SCC), 67 CCC (3d) 544, per Cory J (6:1), at p. 562
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at p. 470
    R v Ling, 2009 BCCA 70 (CanLII), 241 CCC (3d) 409, per Bauman JA, at para 43 (leave to appeal refused, [2009] SCCA No 165)
  2. ↑ Clémenceau at para 7
  3. ↑ see 487.1
    related R v Steeves, 2002 BCSC 551 (CanLII), 54 WCB (2d) 96, per Chamberlist J, at paras 57 to 62
  4. ↑ R v Dixon, 2012 ONSC 181 (CanLII), per Taliano J
  5. ↑ R v Sanchez, 1994 CanLII 5271 (ONSC), [1994] OJ No 2260 (SCJ), per Hill J, at para 20
  6. ↑ Re Lubell and the Queen, 1973 CanLII 1488 (ONSC), 11 CCC (2d) 188 (Ont. H.C.), per Zuber J, at p. 190
    R v Durling, 2006 NSCA 124 (CanLII), 214 CCC (3d) 49, per MacDonald CJ, at para 19
    Sanchez, supra, at p. 364
    Re Chapman and the Queen, 1983 CanLII 3587 (ON SC), 6 CCC (3d) 296, per Reid J, at p. 297
    Re Times Square Book Store and R., 1985 CanLII 170 (ON CA), 17 CRR 180, 21 CCC (3d) 503, per Cory JA ("However, the warrant (and I infer from the heading immediately preceding this quote that he is also speaking of the information in support) need not be drafted with legal precision as it is an instrument for the investigation of crime. A reasonable latitude must be granted when considering its wording.")
  7. ↑ R v Whitaker, 2008 BCCA 174 (CanLII), 254 BCAC 234, per Frankel JA (3:0), at paras 41 to 42
  8. ↑ e.g. Harris, supra, at pp. 13-16
    R v Church of Scientology and the Queen (No.6), 1987 CanLII 122 (ON CA), 31 CCC (3d) 449, per curiam, at p. 500
  9. ↑ R v Donaldson, 1990 CanLII 630 (BC CA), 58 CCC (3d) 294, per Hinkson JA (3:0)
  10. ↑ Re Criminal Code, [1997] OJ No 4393 (Gen. Div.)(*no CanLII links) , at paras 9 to 11
  11. ↑ R v Rafferty, 2012 ONSC 703 (CanLII), OJ No 2132, per Heeney J , at para 34
  12. ↑ R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140, per Wilson J, at p. 1166

Inferences

It is not necessary that the officer spell out all possible reasons that they want to rely upon for seizing certain evidence. A judge may infer the reasons based on the evidence given in the ITO.[1]

A Justice is entitled to draw reasonable inferences from the ITO.[2]

  1. ↑ R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J (9:0), at paras 13 to 16
  2. ↑ See R v Durling, 2006 NSCA 124 (CanLII), 214 CCC (3d) 49, per MacDonald CJ, at paras 27 to 28
    Vu, supra, at para 16

Full, Frank and Fair Disclosure

Standard for ITO Disclosure

The affiant must make "full, frank and fair" disclosure of all information known to the officer relevant to the matter before the authorizing justice.[1] While such form candid disclosure is general expected, duty is heightened due to the ex parte nature of the application.[2] There is a hightened risk of the court's powers being misused.[3]

This principle applies to all warrants, including wiretaps.[4]

The police must give full and frank disclosure so that the authorizing justice can decide in a "neutral and impartial manner."[5]

Consequence of Failure to be FF&F

A failure to satisfy the affiant's duty to be full, fair and frank in its disclosure in the ITO may be a breach of s. 8 of the Charter.[6]

A flagrant, deliberate, or wilfully blind failure to make full and complete disclosure can be fatal to the warrant.[7]

Breadth of FF&F Standard

In any ex parte application process, the applicant must disclose "material facts" that may affect the outcome of the application.[8] The ITO does not need to state every step a police officer takes in obtaining information.[9]

"Material facts" refers to something that "bears on the merits or substance of the application rather than on its form or some other inconsequential matter"[10]

This does not require disclosing every fact that might possibly be relevant.[11] It should only be those that are "material facts."[12]

It is also not necessary to "anticipate" and explain "every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event." [13]

It is also generally not necessary to include in the ITO the absence of any other potentially relevant observations.[14]

Full and frank disclosure requires that the officer include "what the police believe they can prove at the time of the warrant." It does not include the requirement to reveal "all of their suspicions about the accused."[15]

Affiant Discretion

The affiant must exercise some discretion and judgement to decide what is most important to include in the ITO and what to leave out.[16]

Good Faith

Lack of good faith in the contents of the ITO may invalidate it.[17]

Inappropriate Content

The ITO cannot rely on "broad generalizations about loosely defined classes of people". It would invite reliance on "stereotypes and prejudices" instead of evidence.[18]

The ITO must be sure to disclose any "prior association or personal connection" between the informer and the target of the search.[19]

Inferences

The justice is entitled to draw reasonable inference from the facts set out in the ITO.[20] It is not necessary that the affiant spell out all inferences they are relying upon.[21]

Experience of Officer

The officer's experience is relevant to the investigative narrative.[22] Training and experience permits an officer to draw inferences and make deductions not otherwise available to a lay person.[23]

  1. ↑ R v Moore, 1993 CanLII 17 , per Toy JA aff'd on appeal
    R v Brown, 2008 ABQB 663 (CanLII), 451 AR 1, per Germain J, at paras 50, 64
    R v Kensington Income Tax, [1917] 1 K.B. 486 (CA)(*no CanLII links)
    Re Church of Scientology and The Queen (No. 6), 1987 CanLII 122 (ON CA), 31 CCC (3d) 449, per curiam
    United States of America v Friedland, 1996 CanLII 8213 (ONSC), [1996] OJ No 4399 (Gen. Div.), per Sharpe J, at paras 26 to 29
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per Fish J (9:0), at para 46
    R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA (3:0), at para 48
    R. v. Land (1990), 1990 CanLII 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.) per Watt J
  2. ↑ Araujo, supra, at paras 46 to 47
    United States of America v. Friedland, [1996] O.J. No. 4399 (Ont. Ct. (Gen.Div.)) per Sharpe J
  3. ↑ R v Liew, 2012 ONSC 1826 (CanLII), per Boswell J, at paras 158 to 159
  4. ↑ R v Ling, 2009 BCCA 70 (CanLII), 241 CCC (3d) 409, per Bauman JA, at paras 31 to 32
  5. ↑ Ling, ibid., at para 40
  6. ↑ R v Rocha, 2012 ONCA 707 (CanLII), 292 CCC (3d) 325, per Rosenberg JA
    R v White, 2017 ONSC 5647 (CanLII), per De Sa J, at para 33
  7. ↑ R v Duncan (W.), 2004 MBCA 64 (CanLII), 188 CCC (3d) 17, per Monnin JA (2:1), at para 32
  8. ↑ R v Montgomery, 2016 BCCA 379 (CanLII), 341 CCC (3d) 147, per Frankel JA, at para 98
    Evans v Umbrella Capital LLC, 2004 BCCA 149 (CanLII), 237 DLR (4th) 106, per Donald JA, at para 33 ("A material fact is one that may or might affect the outcome of an application:... . It is for the court to decide what is a material fact..")
  9. ↑ R v Sanchez, 1994 CanLII 5271 (ONSC), 93 CCC (3d) 357, per Hill J, at para 20
  10. ↑ R v Nguyen, 2011 ONCA 465 (CanLII)
    R. v. Land (1990), 1990 CanLII 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.), per Watt J., at p. 417
  11. ↑ R v Chambers, 1983 CanLII 245 , per Craig JA, at p. 143 aff'd 1986 CanLII 22 (SCC), 26 CCC (3d) 353, per McIntyre J (5:2)
    R v Concepcion, 1994 CanLII 1746 (BCCA), 48 BCAC 44 (BCCA), per Finch JA (3:0), at para 36 (it does not impose a blanket obligation “to disclose every fact which might possibly be relevant”)
    Montgomery, supra, at para 97
  12. ↑ Araujo, supra, at para 46
  13. ↑ Nguyen
  14. ↑ e.g. R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA (3:0) - CA overturns a decision to invalidate warrant for failing to mention lack of suspicious activity in front of grow-up house
  15. ↑ Brown, supra, at para 64
    R v Middleton, 2000 BCCA 660 (CanLII), 150 CCC (3d) 556, per Finch JA (3:0), at paras 18, 19
  16. ↑ R v Ebanks, 2009 ONCA 851 (CanLII), 249 CCC (3d) 29, per MacPherson JA (3:0), at para 43
  17. ↑ e.g. Ling, supra
  18. ↑ Morelli, supra, at para 79
  19. ↑ R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at para 50
  20. ↑ R v Schiers, 2003 NSCA 138 (CanLII), 114 CRR (2d) 53, per Fichaud JA, at para 15
    R v Durling, 2006 NSCA 124 (CanLII), 214 CCC (3d) 49, per MacDonald CJ, at paras 20, 27
    R v Jackson, 1983 CanLII 244 (BC CA), 9 CCC (3d) 125, per Taggart JA and Seaton JA, at p. 131
    R v Sanchez, 1994 CanLII 5271 (ON SC), 93 CCC (3d) 357, per Hill J, at pp. 365, 370
    R v Church of Scientology, 1987 CanLII 122 (ON CA), 31 CCC (3d) 449, per curiam (3:0), at pp. 514 to 515
  21. ↑ Re Lubell, supra, at p. 190
  22. ↑ R v Ngo, 2011 ONSC 6676 (CanLII), OJ No 5023, per Hill J, at para 35(4)
    R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] OJ NO 3754, per Hill J
  23. ↑ R v Jacques and Mitchell, 1996 CanLII 174 (SCC), [1996] 3 SCR 312, per Gonthier J, at p. 12
    R v Lawes, 2007 ONCA 10 (CanLII), 72 WCB (2d) 487, per curiam, at para 4
    R v Simpson, 1993 CanLII 3379 (ON CA), 79 CCC (3d) 482, per Doherty JA, at p. 501
    R v Juan, 2007 BCCA 351 (CanLII), 222 CCC (3d) 289, per Thackray JA (3:0), at para 19 ("...the "reasonable person" is presumed to have the knowledge and experience, in this case in illicit drug matters, of a knowledgeable and experienced police officer.")
    R v Tran, 2007 BCCA 491 (CanLII), 247 BCAC 109, per Levine JA (3:0), at para 12
    R v Mouland, 2007 SKCA 105 (CanLII), 77 WCB (2d) 109, per Smith JA, at to 27 paras to 27{{{3}}}
    R v Ingle, 2007 BCCA 445 (CanLII), [2007] BCJ No 2024, per Rowles JA (3:0), at para 53
    R v Rajaratnam, 2006 ABCA 333 (CanLII), 214 CCC (3d) 547, per curiam (3:0), at p. 559
    R v Grotheim, 2001 SKCA 116 (CanLII), 161 CCC (3d) 49, per Cameron JA (3:0), at para 30

Rule Against Narrative (Source Citation Rule)

The drafting of an ITO cannot violate what is known as the "rule against narrative". This rule prohibits the drafter from citing any fact that has not been sourced from evidence that is identified within the ITO.[1]

  1. ↑ Re Criminal Code, [1997] OJ No 4393(*no CanLII links) , at para 8 ("...any factual assertion by the applicant within the four corners of the affidavit must be sourced to some investigative resource. Otherwise, the applicant breaches what is sometimes referred to as the rule against narrative. It is insufficient for an applicant to simply state conclusions, opinions and facts without providing the court with the source or origin for such conclusions, opinions or facts. The credibility and reliability of the assertions are inextricably linked to the investigative resources themselves.")

Time of Search

The warrant should describe the time period in which the execution of the search is to be authorized. That period can be implied as being "within a reasonable time" from being authorized.[1] Some authority suggests that where there is an absence of a specific statement of the date of execution, it may be inferred that the execution date was the same as the signing date.[2]

A warrant omitting the time of search can still be facially valid.[3]

There should be a specified or inferred time period in which the search is to be conducted.[4]

Time of Day
See also: Execution of Search Warrants#Night Searches

Normally authorizations under s. 487, 487.1, 462.32 are to be executed during day time hours, which range from 6am to 9pm.

A night-time warrant requires additional grounds if done pursuant to s. 487, while it is not needed if authorized under s. 11 CDSA.[5]

  1. ↑ R v Saint, 2017 ONCA 491 (CanLII), per BW Miller JA
  2. ↑ R v Rafferty, 2012 ONSC 703 (CanLII), OJ No 2132, per Heeney J, at para 23
  3. ↑ Saint, ibid., at para 21
    R v Jones, 2011 ONCA 632 (CanLII), 278 CCC (3d) 157, per Blair JA (3:0) see also Time limitations on searches
  4. ↑ R v Du, 2004 ABQB 849 (CanLII), 65 WCB (2d) 720, per Macklin J - warrant quashed for failing to set time range of search
  5. ↑ Execution of Search Warrants


Reliability of Information Within the ITO

Information such as references to previously dismissed charges are irrelevant and should not be included in an ITO. They may be misleading and suggest an unfair propensity.[1]

  1. ↑ R v King (No. 4), 2016 CanLII 88801 (NLSCTD), per Marshall J, at para 30
    R v Nguyen, 2011 ONSC 2187 (CanLII), per O’Neill J, at para 11

Currency of Information

It is essential that the affiant provide some detail on the recency of the information he is relying upon. An ITO without any detail on timing will be void.[1]

The age of the information will be a factor in considering whether reasonable grounds still exist. There is no fixed amount of time that renders it "stale."[2]

Even "stale" or "dated" information may be used in an ITO.[3]

The timing should be specific for the context. Simply saying that the suspect was seen near the location of the crime "several hour" ago is not sufficient.[4]

Child Pornography

The searching officer may draw the inference upon learning of the download of suspected child pornography that the files may remain on the computer well after download and even where efforts to delete the materials have been made.[5]

The searching officer may in some cases also rely upon their experience "of individuals who access and possess child pornography on their computers" which tells them that "often these individuals kept images for “long periods of time” and “rarely deleted collections”." Generally, dated information on the presence of child pornography can be relied upon as those who collect such materials are known to keep it for a long period of time. [6]

A computer previously identified as being in the home would reasonably be inferred to still be present at the same location absent evidence suggesting otherwise.[7]

  1. ↑ R v Hosie, 1996 CanLII 450 (ON CA), 107 CCC (3d) 385, per Rosenberg JA (3:0)
  2. ↑ R v Ballendine, 2011 BCCA 221 (CanLII), 271 CCC (3d) 418, per Frankel JA (3:0), at para 54
  3. ↑ R v Brown, 2007 BCPC 448 (CanLII), per De Couto J , at para 65
  4. ↑ R v Carroll, 1989 CanLII 206 (NS CA), 47 CCC (3d) 263, per Macdonald JA
  5. ↑ R v Ward, 2012 ONCA 660 (CanLII), 97 CR (6th) 377, per Doherty JA (3:0), at para 114 ("...extensive technical evidence to the effect that files downloaded by the appellant on the computer could be recovered by police technicians even if the appellant had made efforts to delete those files. This evidence offered some basis for an inference that the prohibited material remained on the computer long after it was downloaded and could be recovered if the police were given access to the computer")
    Brown, supra, at para 82
  6. ↑ Ward, supra, at para 115
    R v Neveu, 2005 NSPC 51 (CanLII), 760 APR 59, per Gibson J, at para 18
    R v Wonitowy, 2010 SKQB 346 (CanLII), 358 Sask R 303, per Dufour J, at paras 37 to 50
    Brown, supra, at para 82
  7. ↑ R v Stemberger, 2012 ONCJ 31 (CanLII), per Borenstein J, at para 99

Cross-Examination of Affiant

The accused may only cross-examine an officer who sworn an affidavit to obtain a search warrant with leave of the court. Leave should be granted where it would assist in the determination of whether there is a basis upon which the authorizing judge could have granted the order.[1]

Standard for Leave to Cross-Examine

The applicant must show the basis of that the examination "will elicit testimony tending to discredit the existence of one of the pre-conditions."[2]

Dangers of allowing cross-examination of an affiant include the prolixity and slowing down of the proceedings.[3]

Getting Behind a "Strawman" Affiant

There is some right to cross-examine sub-affiant (ie. the first-hand source of information attested to by the affiant) where the affiant is largely relying upon the hearsay evidence of others.

Standard of Review of Decision

The discretionary decision to deny the right to cross-examine an affiant can be reviewed if there is an error in principle, material apprehension of evidence, or unreasonable finding.[4]

  1. ↑ Salhany, Canadian Criminal Procedure, Sixth Edition, at 3.1880
    see also: R v Parsons, 2012 CanLII 42275 (NLSCTD), per Goulding J - leave refused
  2. ↑ R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J
  3. ↑ R v Pires and Lising, 2005 SCC 66 (CanLII), [2005] 3 SCR 343, per Charron J, at paras 33 and 34
  4. ↑ R v Daye, 2022 ONCA 675 (CanLII), at para 11

Credibility and Reliability of Source

See also: Confidential Informers

A source who gives fraudulent or deliberately misleading information does not automatically invalidate the warrant.[1] However, if on review the information is sufficiently "subversive", then the warrant should be invalidated. The offending materials should also be excised from the ITO.[2]

  1. ↑ R v Morris (W.R.), 1998 CanLII 1344 (NS CA), 173 NSR (2d) 1 (CA), per Cromwell JA (3:0), at para 91
    R v Evans (E.D.), 2014 MBCA 44 (CanLII), 306 Man R (2d) 9, per Mainella JA (3:0), at para 17
  2. ↑ Morris, supra, at para 91

Relying on Redacted ITOs

See also: Confidential Informers and Judicial Authorization Standard of Review

Procedure in Drafting Warrant

Crown Role in Drafting ITOs

A Crown should assist in pointing out "flaws, inconsistencies, or ambiguities" in the ITO they should not engage in the "wholesale review of the file". This would otherwise "blur the line" between the two roles.[1]

Retaining Early Drafts

There is no constitutional obligation to retain early drafts of an ITO. [2]

  1. ↑ R v Ebanks, 2009 ONCA 851 (CanLII), 249 CCC (3d) 29, per MacPherson JA (3:0), at para 49
  2. ↑ R v Croft, 2014 ABQB 23 (CanLII), per Burrows J

See Also

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