Information to Obtain a Judicial Authorization

• < Search and Seizure
• < Warrant Searches

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 base requirements of an ITO include facts establishing grounds of belief for:

• the existence of thing to be searched for;
• the location of the thing to be searched for;
• the location of search is a building, receptacle or place;
• the building, receptacle or place is present at location;
• the offence alleged has been (or suspected of being) committed as described; and
• the thing to be searched for affords evidence of the commission of the offence or possession of the thing is an offence itself.

The evidence within the ITO must permit the officer to form reasonable and probable grounds. The affiant must specify their reasonable grounds within the ITO.

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”.

The ITO must specify a particular offence that is being investigated. As well, it must not simply include "conclusory" statements but rather the factual grounds for the conclusions. A conclusory statement is "where an affiant states their belief but none of the underlying facts, thereby preventing an objective assessment of the affiant’s belief".

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.

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

The affiant must make "full, frank and fair" disclosure of all information known to the officer relevant to the matter before the authorizing justice. This obligation arises due to the ex parte nature of the application. And applies to all warrants, including wiretaps.

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.

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

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

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

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

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

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

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

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".

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)

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.

Description of the Location to be Searched

Precision is necessary in the identification of the place to be searched. Vagueness can lead to searches of the wrong location and can lead to abuse.

The ITO must sufficiently describe the location to be searched. The description should be appropriate "description should be appropriate to the nature of the locus in question".

Motor Vehicles

A motor vehicle can be both a location to be searched as well as the actual thing to be searched for.

Residences

A warrant to search a residence should be appropriate for the context. A single family home should include municipal address, including number, street, town or city.

A warrant authorizing the search of a dwelling-house will generally not include motor vehicles, particularly where the ITO does not address the existence and relevance of the motor vehicle.

For a search of an apartment building, the warrant must specify the unit number.

A warrant is still valid where the address is wrong or vague in one section of the ITO but valid in another section.

Where the ITO is inconsistent with the warrant some level of error is permissible as long as the location remains sufficient clear.

It is possible for a single ITO and warrant to describe and authorize several premises.

Description of Thing(s) to be Searched For

The warrant's description of things to be seized "operates as a guide for the officers conducting the search."

The justice of the peace loses jurisdiction where the description is over-broad or too vague such that it essentially allows the officer to conduct a "carte blanche" search for any evidence within the premises.

Generally, an approving justice should be satisfied that:

1. that the items specified exist;
2. that the items specified will be found in the place to be searched at the time of the search;
3. that the offence alleged has been, or will be, (depending on the type of search warrant being sought) committed;
4. that the items specified will afford evidence of the offence alleged; and
5. that the place to be searched is the location where the items will be located.

It has been recommended the following principles be considered:

1. peace officers should be given some latitude in describing things as they are still at the investigative stage;
2. the description may be limited to classes of documents if it is sufficiently limited to the crime for which they are alleged to afford evidence;
3. the Information sworn to obtain the Search Warrant must be read together with the Search Warrant;
4. the nature of the offence(s) must be considered;
5. in considering all of the factors, appropriate inferences may be made;
6. there need not always be a time limit set out with respect to the documents sought;
7. overly broad or vague descriptions can be severed leaving validly described things remaining;
8. each case must be considered on its own facts.

The main question the reviewing judge must ask is, upon reviewing the ITO and the warrant "whether either the officers conducting the search or the Applicants whose premises were being searched would have any reasonable doubt about the things being searched for or the offences alleged to have been committed."

A motor vehicle can be both a location to be searched as well as the actual thing to be searched for.

See also R v Solloway and Mills (1930), 24 Alta.L.R. 410 (Alta. S.C.A.D.), 1930 CanLII 487 (AB CA), per Harvey CJ.

Description of Offence(s) Being Investigated

An ITO must set out "a clear description of the offence being investigated". A lack of description will invalidate a warrant. It is not necessary that the description set out the specific charge or be of quality for pleadings at trial.

It is not necessary that the ITO be as specific in the offence as the wording in the indictment.

The authorizing justice need not be satisfied that the offence was committed or that the items seized will afford evidence in proving the offence. The justice need only be satisfied that there are reasonable grounds for believing that the items can be of assistance to establishing the commission of the offence and that they are in the premises to be searched.

The ITO must also set out the evidentiary basis that makes out the offence.

Evidence supporting a charge of accessing child pornography cannot support a warrant based on an investigation for possessing child pornography.

It is not necessary that the suspect be named. It is enough to say "unknown persons".

Connecting the Thing to the Location

The approving justice must be satisfied that there is a connection between the grounds for belief of the offence and that evidence of or information related to the offence will be found on the premises to be searched.

The affiant must establish a link between the believed committed offences as well as any evidence of the offence and the belief that it will be found on the premises.

The informant must pledge that the items not simply "could" be found but would be found.

Rooming House

All rooms within a rooming house has the same level of privacy as a single residence. An ITO proposing to search several units within a multi-unit dwelling should "clearly [set] out reasonable and probable grounds for each unit to be searched".

Time Limitation on the Search

There should be a specified or inferred time period in which the search is to be conducted. There is some suggestion that it should not be fatal.

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.

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.

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.

Relying on Redacted ITOs

Where a challenged ITO has been redacted to an extent that the unredacted information is insufficient to support the issuance of the warrant, the Crown can invoke "step six of Garofoli" which permits them to rely on a vetted summary of redacted information. The summary is vetted by the judge and then provided to defence counsel. The summary must provide sufficient detail as to permit full answer and defence.

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