Search Warrant Evidence: Difference between revisions
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[[fr:Preuve_du_mandat_de_recherche]] | |||
{{Currency2|January|2016}} | |||
{{LevelZero}}{{HeaderWarrants}} | {{LevelZero}}{{HeaderWarrants}} | ||
==General Principles== | ==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.<ref> | Any communications between the affiant and the authorizing justice cannot form part of the grounds to support the issuing of a warrant.<ref> | ||
Re Worrall | {{CanLIIRPC|Re Worrall|g1g99|1964 CanLII 161 (ON CA)|[1965] 2 CCC 1}}{{perONCA|Roach JA}} dissenting on another issue | ||
</ref> | </ref> | ||
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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.<ref> | 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.<ref> | ||
{{CanLIIRP|Laurin|6hsf|1997 CanLII 775 (ON CA)|113 CCC (3d) 519}}{{perONCA| Morden ACJ}}</ref> | |||
The same goes for entering into a commercial building without permission.<ref> | The same goes for entering into a commercial building without permission.<ref> | ||
{{CanLIIRP|Arason|1d9tq|1992 CanLII 1008 (BC CA)|78 CCC (3d) 1}}{{perBCCA|Cumming JA}}<br> | |||
</ref> | </ref> | ||
However, an officer may not rely on information gained by peering into windows of a building that they cannot enter.<ref> | However, an officer may not rely on information gained by peering into windows of a building that they cannot enter.<ref> | ||
{{supra1|Laurin}}</ref> | {{supra1|Laurin}}</ref> | ||
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" | 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."<ref> | ||
{{CanLIIRP|Beune|1knr3|2005 BCPC 175 (CanLII)|BCJ No 1082}}{{perBCPC|Dhillon J}}{{atL|1knr3|47}}<br> | |||
</ref> | </ref> | ||
There is a diminished, if any, privacy in the hallway of an apartment building.<ref> | There is a diminished, if any, privacy in the hallway of an apartment building.<ref> | ||
{{CanLIIRP|Brar|1vd3k|2008 MBQB 1 (CanLII)|222 Man R (2d) 243}}{{perMBQB|MacInnes J}}{{atL|1vd3k|44}}</ref> | |||
See also [[Reasonable Expectation of Privacy]] | See also [[Reasonable Expectation of Privacy]] | ||
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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. | 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. | ||
<ref> | <ref> | ||
{{CanLIIRP|Allen|2dcd3|1995 ABCA 384 (CanLII)|174 AR 239}}{{perABCA|Fraser CJ}}{{atL|2dcd3|5}}<br> | |||
{{CanLIIRP|Campbell|55zz|2003 MBCA 76 (CanLII)|175 CCC (3d) 452}}{{perMBCA|Scott CJ}}{{atsL|55zz|49| to 51}} <br> | |||
{{CanLIIRx|Sonne|fqmdt|2012 ONSC 140 (CanLII)}}{{perONSC|Spies J}}{{atL|fqmdt|17}}<Br> | |||
{{CanLIIRP|LeBlanc|518m|2001 ABQB 721 (CanLII)|297 AR 17}}{{perABQB|Moore J}}<Br> | |||
</ref> | </ref> | ||
The statement cannot be involuntary.<ref> | The statement cannot be involuntary.<ref> | ||
{{CanLIIRP|Ye|fl0wm|2011 ONSC 2278 (CanLII)|OJ No 1670}}{{perONSC|Quigley J}}{{atL|fl0wm|40}}<br> | |||
</ref> | </ref> | ||
A statutorily compelled statement of the accused cannot be used for the purpose of an ITO.<ref> | A statutorily compelled statement of the accused cannot be used for the purpose of an ITO.<ref> | ||
{{CanLIIRP|Powers|1prpr|2006 BCCA 454 (CanLII)|213 CCC (3d) 351}}{{perBCCA|Saunders JA}} leave denied [2006] SCCA No 452<br> | |||
{{CanLIIRP|Soules|flqcz|2011 ONCA 429 (CanLII)|273 CCC (3d) 496}}{{perONCA|LaForme JA}} leave denied [2011] SCCA No 375, | |||
{{CanLIIRP|Scharf|g0n60|2013 SKQB 327 (CanLII)|52 MVR (6th) 20}}{{perSKQB| Danyliuk J}}<br> | |||
</ref> | </ref> | ||
| Line 52: | Line 52: | ||
==Criminal Records== | ==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.<ref> | 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.<ref> | ||
{{CanLIIRP|Johnston|272cr|2009 ABPC 315 (CanLII)|481 AR 229}}{{perABPC|Semenuk J}}{{atL|272cr|44}}</ref> | |||
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.<ref> | 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.<ref> | ||
{{CanLIIRP|Sismey|1d7fr|1990 CanLII 1483 (BC CA)|55 CCC (3d) 281}}{{perBCCA| Lambert JA}}</ref> | |||
There is no added value in including charges that have been stayed or withdrawn. The prejudicial effect is too great. <ref> | There is no added value in including charges that have been stayed or withdrawn. The prejudicial effect is too great. <ref> | ||
{{CanLIIRx|Johnson|1lsw6|2005 BCPC 432 (CanLII)}}{{perBCPC|RR Smith J}}{{atL|1lsw6|8}}</ref> | |||
{{reflist|2}} | {{reflist|2}} | ||
| Line 63: | Line 66: | ||
{{seealso|Hearsay}} | {{seealso|Hearsay}} | ||
The applicant should always indicate whether they are relying on hearsay or direct knowledge.<ref> | The applicant should always indicate whether they are relying on hearsay or direct knowledge.<ref> | ||
e.g. see | e.g. see {{CanLIIRx|Nightingale|1mw8j|2006 ABPC 79 (CanLII)}}{{perABPC| Creagh J}}{{atsL|1mw8j|65| to 67}} - officer failed to specify</ref> | ||
An ITO relying upon hearsay does does not exclude it from establishing "probable cause" | An ITO relying upon hearsay does does not exclude it from establishing "probable cause."<ref> | ||
{{CanLIIRPC|Eccles v Bourque|1z1gw|1974 CanLII 191 (SCC)|[1975] 2 SCR 739}}{{perSCC|Dickson J}}{{atp|746}} ( "That this information was hearsay does not exclude it from establishing probable cause") | |||
</ref> | </ref> | ||
A justice should independently assess the reliability of the hearsay by considering why the affiant found the hearsay reliable.<Ref> | |||
Gorman, "The Issuing and Reviewing of Search Warrants" [https://www.cacp.ca/index.html?asst_id=2426] | |||
</reF> | |||
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. | 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. | ||
<ref> | <ref> | ||
{{CanLIIRx|KP|fn3tk|2011 NUCJ 27 (CanLII)}}, ''per'' Sharkey J{{atL|fn3tk|83}}<br> | |||
see also | see also {{CanLIIRP|Philpott|1cc4p|2002 CanLII 25164 (ON SC)|101 CRR (2d) 87}}{{perONSC|Quinn J}}{{atL|1cc4p|40}}<br> | ||
{{CanLIIRx|Bryan|1vk9r|2008 CanLII 2595 (ON SC)}}{{perONSC|DM Smith J}}{{atL|1vk9r|81}}</ref> | |||
Details on the source should be used to distinguish the information from rumor or gossip.<ref> | Details on the source should be used to distinguish the information from rumor or gossip.<ref> | ||
{{CanLIIRP|Allain|1lrj9|1998 CanLII 12250 (NB CA)|523 APR 201}}{{perNBCA|Drapeau JA}}{{atps|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")</ref> | |||
Where the hearsay source is not set out the part of the ITO may be defective.<ref> | Where the hearsay source is not set out the part of the ITO may be defective.<ref> | ||
{{CanLIIRx|Bui and Do|1kwsn|2005 BCPC 210 (CanLII)}}{{perBCPC|Jardine J}}{{atL|1kwsn|57}}</ref> | |||
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.<ref> | 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.<ref> | ||
Bui and Do | {{supra1|Bui and Do}}{{atL|1kwsn|57}}</ref> | ||
It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.<ref> | |||
{{CanLIIRP|Liang, Yeung, Zhu, Zhai, Wen, Zhou, Jiang, Cheung and Xu|1r3nj|2007 YKTC 18 (CanLII)|154 CRR (2d) 187}}{{perYKTC|Ruddy J}}</ref> | |||
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.<ref> | 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.<ref> | ||
| Line 89: | Line 97: | ||
Whether the confidential informant was paid should be provided as well.<ref> | Whether the confidential informant was paid should be provided as well.<ref> | ||
Buid and Do{{ | {{supra1|Buid and Do}}{{atL|1kwsn|57}}</ref> | ||
Debot factors are to be applied when considering hearsay. | Debot factors are to be applied when considering hearsay. | ||
| Line 98: | Line 106: | ||
{{seealso|Expert Evidence}} | {{seealso|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.<ref> | 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.<ref> | ||
Criminal Code s. 487.01, Application of General Warrant | {{CanLIIRxC|Criminal Code s. 487.01, Application of General Warrant|5j96|2002 SKPC 11 (CanLII)}}{{perSKPC|Halderman J}}{{atsL|5j96|32| to 33}}<br> | ||
{{CanLIIRP|Morelli|1x08k|2008 SKCA 62 (CanLII)|233 CCC (3d) 465}}{{perSKCA|Hunter JA}}{{atL|1x08k|122}}<br> | |||
{{CanLIIRP|Agensys International Inc|1hd0h|2004 CanLII 17920 (ON CA)|187 CCC (3d) 481}}{{perONCA|Gillese JA}}{{atL|1hd0h|44}}<br> | |||
{{CanLIIRP|Ward|ft0ft|2012 ONCA 660 (CanLII)|97 CR (6th) 377}}{{perONCA-H|Doherty JA}}{{atL|ft0ft|115}}<br> | |||
</ref> | </ref> | ||
Where the affiant is properly qualified as an expert within the ITO, the reviewing judge may not "independently verify" the opinion.<ref> | Where the affiant is properly qualified as an expert within the ITO, the reviewing judge may not "independently verify" the opinion.<ref> | ||
{{CanLIIRP|Burke|fzcl2|2013 ONCA 424 (CanLII)|285 CRR (2d) 6}}{{perONCA|Weiler JA}}{{atL|fzcl2|23}} | |||
</ref> | </ref> | ||
; 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.<ref> | 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.<ref> | ||
{{CanLIIRP|Mercuri|1hp0d|2004 CanLII 7053 (ON SC)|OJ No 3415}}{{perONSC|J deP Wright J}} | |||
</ref> | </ref> | ||
Latest revision as of 10:35, 26 July 2024
| This page was last substantively updated or reviewed January 2016. (Rev. # 95998) |
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]
- ↑ Re Worrall, 1964 CanLII 161 (ON CA), [1965] 2 CCC 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
- ↑ R v Laurin, 1997 CanLII 775 (ON CA), 113 CCC (3d) 519, per Morden ACJ
- ↑
R v Arason, 1992 CanLII 1008 (BC CA), 78 CCC (3d) 1, per Cumming JA
- ↑ Laurin, supra
- ↑
R v Beune, 2005 BCPC 175 (CanLII), BCJ No 1082, per Dhillon J, at para 47
- ↑ R v Brar, 2008 MBQB 1 (CanLII), 222 Man R (2d) 243, per MacInnes J, at para 44
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]
- ↑
R v Allen, 1995 ABCA 384 (CanLII), 174 AR 239, per Fraser CJ, at para 5
R v Campbell, 2003 MBCA 76 (CanLII), 175 CCC (3d) 452, per Scott CJ, at paras 49 to 51
R v Sonne, 2012 ONSC 140 (CanLII), per Spies J, at para 17
R v LeBlanc, 2001 ABQB 721 (CanLII), 297 AR 17, per Moore J
- ↑
R v Ye, 2011 ONSC 2278 (CanLII), OJ No 1670, per Quigley J, at para 40
- ↑
R v Powers, 2006 BCCA 454 (CanLII), 213 CCC (3d) 351, per Saunders JA leave denied [2006] SCCA No 452
R v Soules, 2011 ONCA 429 (CanLII), 273 CCC (3d) 496, per LaForme JA leave denied [2011] SCCA No 375, R v Scharf, 2013 SKQB 327 (CanLII), 52 MVR (6th) 20, 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]
- ↑ R v Johnston, 2009 ABPC 315 (CanLII), 481 AR 229, per Semenuk J, at para 44
- ↑ R v Sismey, 1990 CanLII 1483 (BC CA), 55 CCC (3d) 281, per Lambert JA
- ↑ R v Johnson, 2005 BCPC 432 (CanLII), per RR Smith J, at para 8
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]
A justice should independently assess the reliability of the hearsay by considering why the affiant found the hearsay reliable.[3]
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. [4]
Details on the source should be used to distinguish the information from rumor or gossip.[5]
Where the hearsay source is not set out the part of the ITO may be defective.[6]
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.[7] It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.[8]
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.[9]
Whether the confidential informant was paid should be provided as well.[10]
Debot factors are to be applied when considering hearsay.
- ↑ e.g. see R v Nightingale, 2006 ABPC 79 (CanLII), per Creagh J, at paras 65 to 67 - officer failed to specify
- ↑ Eccles v Bourque, 1974 CanLII 191 (SCC), [1975] 2 SCR 739, per Dickson J, at p. 746 ( "That this information was hearsay does not exclude it from establishing probable cause")
- ↑ Gorman, "The Issuing and Reviewing of Search Warrants" [1]
- ↑
R v KP, 2011 NUCJ 27 (CanLII), per Sharkey J, at para 83
see also R v Philpott, 2002 CanLII 25164 (ON SC), 101 CRR (2d) 87, per Quinn J, at para 40
R v Bryan, 2008 CanLII 2595 (ON SC), per DM Smith J, at para 81 - ↑ R v Allain, 1998 CanLII 12250 (NB CA), 523 APR 201, per Drapeau JA, 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")
- ↑ R v Bui and Do, 2005 BCPC 210 (CanLII), per Jardine J, at para 57
- ↑ Bui and Do, supra, at para 57
- ↑ R v Liang, Yeung, Zhu, Zhai, Wen, Zhou, Jiang, Cheung and Xu, 2007 YKTC 18 (CanLII), 154 CRR (2d) 187, per Ruddy J
- ↑ Liang, ibid.
- ↑ Buid and Do, supra, at para 57
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]
- ↑
Criminal Code s. 487.01, Application of General Warrant, 2002 SKPC 11 (CanLII), per Halderman J, at paras 32 to 33
R v Morelli, 2008 SKCA 62 (CanLII), 233 CCC (3d) 465, per Hunter JA, at para 122
R v Agensys International Inc, 2004 CanLII 17920 (ON CA), 187 CCC (3d) 481, per Gillese JA, at para 44
R v Ward, 2012 ONCA 660 (CanLII), 97 CR (6th) 377, per Doherty JA, at para 115
- ↑ R v Burke, 2013 ONCA 424 (CanLII), 285 CRR (2d) 6, per Weiler JA, at para 23
- ↑ R v Mercuri, 2004 CanLII 7053 (ON SC), OJ No 3415, per J deP Wright J