Information to Obtain a Judicial Authorization

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

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General Principles

The affiant police officer's role is to provide a "factual foundation" to justify the issuing of a warrant. 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." A failure in these duties does not necessarily invalidate the warrant.

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.

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.

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

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
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."
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

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

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”.

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.

Facial Validity

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

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

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. Officer’s generally speaking are not held to the same drafting quality as counsel.

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

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

Inquiry by Justice

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

Organization and Length

An issuing judge or justice is entitled to reject an ITO on the basis of it being too lengthy and disorganized. 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

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."

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.

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

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. While such form candid disclosure is general expected, duty is heightened due to the ex parte nature of the application. There is a hightened risk of the court's powers being misused.

This principle applies to all warrants, including wiretaps.

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

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.

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

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. The ITO does not need to state every step a police officer takes in obtaining information.

"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"

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

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."

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

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."

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.

Good Faith

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

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.

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

Inferences

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

Experience of Officer

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

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.

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. 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.

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

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

Time of Day

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.

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.

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.

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."

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

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.

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.

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.

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.

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.

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."

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

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.

Credibility and Reliability of Source

A source who gives fraudulent or deliberately misleading information does not automatically invalidate the warrant. 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.

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.

Retaining Early Drafts

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

See Also

• Judicial Authorization Standard of Review
• Search Warrant Evidence
• ITO Drafting Checklist