Search Warrant Evidence: Difference between revisions
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==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>R v Johnston, [http://canlii.ca/t/272cr 2009 ABPC 315] (CanLII) at para 44</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>R v Johnston, [http://canlii.ca/t/272cr 2009 ABPC 315] (CanLII){{perABPC| Semenuk J}} at para 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>R v Sismey, [http://canlii.ca/t/1d7fr 1990 CanLII 1483] (BC CA)</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>R v Sismey, [http://canlii.ca/t/1d7fr 1990 CanLII 1483] (BC CA){{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There is no added value in including charges that have been stayed or withdrawn.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>R v Johnson [http://canlii.ca/t/1lsw6 2005 BCPC 432] (CanLII) at para 8</ref> | There is no added value in including charges that have been stayed or withdrawn. The prejudicial effect is too great. <ref>R v Johnson [http://canlii.ca/t/1lsw6 2005 BCPC 432] (CanLII){{perBCPC|RR Smith J}} at para 8</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
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{{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 R v Nightingale, [http://canlii.ca/t/1mw8j 2006 ABPC 79] (CanLII) at para 65 to 67 - officer failed to specify</ref> | e.g. see R v Nightingale, [http://canlii.ca/t/1mw8j 2006 ABPC 79] (CanLII){{perABPC| Creagh J}} at para 65 to 67 - officer failed to specify</ref> | ||
An ITO relying upon hearsay does does not exclude it from establishing "probable cause".<ref> | An ITO relying upon hearsay does does not exclude it from establishing "probable cause".<ref> | ||
Eccles v Bourque, [http://canlii.ca/t/1z1gw 1974 CanLII 191] (SCC), [1975] 2 SCR 739 at p. 746 ( "That this information was hearsay does not exclude it from establishing probable cause") | Eccles v Bourque, [http://canlii.ca/t/1z1gw 1974 CanLII 191] (SCC), [1975] 2 SCR 739{{perSCC|Dickson J}} at p. 746 ( "That this information was hearsay does not exclude it from establishing probable cause") | ||
</ref> | </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> | ||
R v KP, [http://canlii.ca/t/fn3tk 2011 NUCJ 27] (CanLII) at para 83<br> | R v KP, [http://canlii.ca/t/fn3tk 2011 NUCJ 27] (CanLII), ''per'' Sharkey J at para 83<br> | ||
see also R v Philpott, [http://canlii.ca/t/1cc4p 2002 CanLII 25164] (ON SC) at para 40<br> | see also R v Philpott, [http://canlii.ca/t/1cc4p 2002 CanLII 25164] (ON SC){{perONSC|Quinn J}} at para 40<br> | ||
R v Bryan, [http://canlii.ca/t/1vk9r 2008 CanLII 2595] (ON SC) at para 81</ref> | R v Bryan, [http://canlii.ca/t/1vk9r 2008 CanLII 2595] (ON SC){{perONSC|DM Smith J}} at para 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> | ||
R v Allain, [http://canlii.ca/t/1lrj9 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")</ref> | R v Allain, [http://canlii.ca/t/1lrj9 1998 CanLII 12250] (NB CA){{perNBCA|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")</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> | ||
R v Bui and Do, [http://canlii.ca/t/1kwsn 2005 BCPC 210] (CanLII) at para 57</ref> | R v Bui and Do, [http://canlii.ca/t/1kwsn 2005 BCPC 210] (CanLII){{perBCPC|Jardine J}} at para 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 at para 57</ref> It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.<ref> | Bui and Do at para 57</ref> It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.<ref> | ||
R v Liang, Yeung, Zhu, Zhai, Wen, Zhou, Jiang, Cheung and Xu, [http://canlii.ca/t/1r3nj 2007 YKTC 18] (CanLII)</ref> | R v Liang, Yeung, Zhu, Zhai, Wen, Zhou, Jiang, Cheung and Xu, [http://canlii.ca/t/1r3nj 2007 YKTC 18] (CanLII), ''per'' 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> | ||
ibid | Liang{{ibid}}</ref> | ||
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 at para 57</ref> | Buid and Do{{supra}} at para 57</ref> | ||
Debot factors are to be applied when considering hearsay. | Debot factors are to be applied when considering hearsay. | ||
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{{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, [http://canlii.ca/t/5j96 2002 SKPC 11] (CanLII) at paras 32 to 33<br> | Criminal Code s. 487.01, Application of General Warrant, [http://canlii.ca/t/5j96 2002 SKPC 11] (CanLII){{perSKPC|Halderman J}} at paras 32 to 33<br> | ||
R v Morelli, [http://canlii.ca/t/1x08k 2008 SKCA 62] (CanLII) at para 122 <br> | R v Morelli, [http://canlii.ca/t/1x08k 2008 SKCA 62] (CanLII){{perSKCA|Hunter JA}} at para 122 <br> | ||
R v Agensys International Inc. [http://canlii.ca/t/1hd0h 2004 CanLII 17920] (ON CA), (2004), 187 CCC (3d) 481 at para 44<br> | R v Agensys International Inc. [http://canlii.ca/t/1hd0h 2004 CanLII 17920] (ON CA), (2004), 187 CCC (3d) 481{{perONCA|Gillese JA}} at para 44<br> | ||
R v Ward, [http://canlii.ca/t/ft0ft 2012 ONCA 660] (CanLII) at para 115 | R v Ward, [http://canlii.ca/t/ft0ft 2012 ONCA 660] (CanLII){{perONCA|Doherty JA}} at para 115 | ||
</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> | ||
R v Burke, [http://canlii.ca/t/fzcl2 2013 ONCA 424] (CanLII) at para 23 | R v Burke, [http://canlii.ca/t/fzcl2 2013 ONCA 424] (CanLII){{perWeiler JA}} at para 23 | ||
</ref> | </ref> | ||
'''Errors in Opinion'''<br> | '''Errors in Opinion'''<br> | ||
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> | ||
R v Mercuri, [http://canlii.ca/t/1hp0d 2004 CanLII 7053] (ON SC) | R v Mercuri, [http://canlii.ca/t/1hp0d 2004 CanLII 7053] (ON SC){{perONSC|J deP Wright J}} | ||
</ref> | </ref> | ||
Revision as of 22:17, 22 November 2018
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 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
- ↑ R v Laurin, 1997 CanLII 775 (ON CA), per Morden ACJ
- ↑
R v Arason, 1992 CanLII 1008 (BC CA), per Cumming JA
- ↑ Laurin, supra
- ↑
R v Beune, 2005 BCPC 175 (CanLII), per Dhillon J at para 47
- ↑ R v Brar, 2008 MBQB 1 (CanLII), per MacInnes J 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]
- ↑
R v Allen, 1995 ABCA 384 (CanLII), per Fraser CJ at para 5 per Fraser CJA
R v Campbell, 2003 MBCA 76 (CanLII), per Scott CJ at para 49-51 per Scott CJM
R v Sonne, 2012 ONSC 140 (CanLII), per Spies J at para 17 per Spies J
R v LeBlanc, 2001 ABQB 721 (CanLII), per Moore J per Moore J
- ↑
R v Ye, 2011 ONSC 2278 (CanLII), per Quigley J at para 40
- ↑
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]
- ↑ R v Johnston, 2009 ABPC 315 (CanLII), per Semenuk J at para 44
- ↑ R v Sismey, 1990 CanLII 1483 (BC CA), 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]
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.
- ↑ e.g. see R v Nightingale, 2006 ABPC 79 (CanLII), per Creagh J at para 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")
- ↑
R v KP, 2011 NUCJ 27 (CanLII), per Sharkey J at para 83
see also R v Philpott, 2002 CanLII 25164 (ON SC), 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), 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 at para 57
- ↑ R v Liang, Yeung, Zhu, Zhai, Wen, Zhou, Jiang, Cheung and Xu, 2007 YKTC 18 (CanLII), 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), per Hunter JA at para 122
R v Agensys International Inc. 2004 CanLII 17920 (ON CA), (2004), 187 CCC (3d) 481, per Gillese JA at para 44
R v Ward, 2012 ONCA 660 (CanLII), per Doherty JA at para 115 - ↑ R v Burke, 2013 ONCA 424 (CanLII)Template:PerWeiler JA at para 23
- ↑ R v Mercuri, 2004 CanLII 7053 (ON SC), per J deP Wright J