Information to Obtain a Judicial Authorization: Difference between revisions

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===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.<Ref>
<Ref>
Re Criminal Code [1997] O.J. No. 4393 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.")<Br>
</ref>
{{Reflist|2}}


==Description of the Location to be Searched==
==Description of the Location to be Searched==

Revision as of 14:08, 23 July 2018

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) 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. ↑ Fan, supra at para 15 citing Araujo at paras 46-49
  3. ↑ See Judicial Authorization Standard of Review
  4. ↑ R v Worrall, 1964 CanLII 161 (ON CA) per Porter CJO
  5. ↑ R v Fan, 2013 BCSC 445 (CanLII) 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 (NS CA), (1998), 173 N.S.R. (2d) 1 (C.A.) at para 31
  7. ↑ Sanchez, supra, at p. 365
  8. ↑ Sanchez, supra, at p. 364
  9. ↑ R v Yorke 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.) affd 1993 CanLII 83 (SCC), [1993] 3 SCR 647
  10. ↑ R v T.K., 2013 MBQB 114 (CanLII) at para 11
    Worrall, supra

Basic Elements

The base requirements of an ITO include facts establishing grounds of belief for:[1]

  • 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”. [2]

The ITO must specify a particular offence that is being investigated.[3] As well, it must not simply include "conclusory" statements but rather the factual grounds for the conclusions.[4] 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".[5]

Facial Validity
The date, place and time of the authorization must be present on the warrant to be valid.[6]

An unsigned affidavit supporting a wiretap warrant is not necessarily fatal to the application.[7]

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.[8] Officer’s generally speaking are not held to the same drafting quality as counsel.[9]

An ITO should be written and read in a practical, non-technical, common-sense fashion.[10]

Inquiry by Justice
A justice has no obligation to make inquiry of the affiant into the grounds of his belief.[11]

Organization and Length
A issuing judge or justice is entitled to reject an ITO on the basis of it being too lengthy and disorganized.[12] 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 [13]

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".[14]

  1. ↑ R v Chhan, 1996 CanLII 7025 (SK QB) per Hill J. - lists 5 requirements
    R v Turcotte, 1987 CanLII 984(SK CA) at p. 14
    R v Adams, 2004 CanLII 12093 (NL PC) at para 24
  2. ↑ C.B.C. v A.-G. for New Brunswick, 1991 CanLII 50 (SCC), (1991), 67 CCC (3d) 544 (S.C.C.), at p. 562
    R v Araujo 2000 SCC 65 (CanLII), (2000), 149 CCC (3d) 449 (S.C.C.), at p. 470;
    R v Ling 2009 BCCA 70 (CanLII), (2009), 241 CCC (3d) 409 (BCCA), at para 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)
  3. ↑ R v Dombrowski, 1985 CanLII 182 (SK CA), (1985) 18 CCC 164
  4. ↑ R v Stockton Financial Services Co. (1990) 60 CCC 527 (Man CA)(*no CanLII links)
    R v Harris, 1987 CanLII 181 (ON CA), (1987) 35 CCC 1 (Ont.CA)
  5. ↑ R v Pilkington (No. 1), 2013 MBQB 79 (CanLII) at para 54
  6. ↑ see 487.1
    related R v Steeves, 2002 BCSC 551 (CanLII) at para 57 to 62
  7. ↑ R v Dixon, 2012 ONSC 181 (CanLII)
  8. ↑ R v Sanchez, 1994 CanLII 5271 (ON SC), [1994] O.J. No. 2260 (S.C.J.), at para 20
  9. ↑ Re Lubell and the Queen (1973), 11 CCC (2d) 188 (Ont. H.C.)(*no CanLII links) , at p.190
    Durling, supra at para 19
    Sanchez, supra at p. 364
    Re Chapman and the Queen, (1983), 6 CCC (3d) 296 (Ont. H.C.)(*no CanLII links) , at p. 297
    Re Times Square Book Store and R. (1985), 1985 CanLII 170 (ON CA), 17 C.R.R. 180, 21 C.C.C. (3d) 503 per Martin 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.")
  10. ↑ R v Whitaker, 2008 BCCA 174 (CanLII) at paras 41-42
  11. ↑ R v Donaldson, 1990 CanLII 630 (BC CA)
  12. ↑ Re Criminal Code, [1997] O.J. No. 4393 (Gen. Div.)(*no CanLII links) at paras 9 to 11
  13. ↑ R v Rafferty, 2012 ONSC 703 (CanLII) at para 34
  14. ↑ R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 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) at paras 13 to 16
  2. ↑ See R v Durling, 2006 NSCA 124 (CanLII) at paras 27-28
    R v Vu, at para 16

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.[1] This obligation arises due to the ex parte nature of the application.[2] And applies to all warrants, including wiretaps.[3]

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.[4]

A flagrant, deliberate, or wilfully blind failure to make full and complete disclosure can be fatal to the warrant.[5]

The police must give full and frank disclosure so that the authorizing justice can decide in a "neutral and impartial manner".[6]

The ITO does not need to state every step a police officer takes in obtaining information.[7]

This does not require disclosing every fact that might possibly be relevant.[8] It should only be those that are "material facts".[9]

It is also generally not necessary to include in the ITO the absence of any other potentially relevant observations.[10]

The ITO cannot rely on "broad generalizations about loosely defined classes of people". It would invite reliance on "stereotypes and prejudices" instead of evidence.[11]

Lack of good faith in the contents of the ITO may invalidate it.[12]

The ITO must be sure to disclose any "prior association or personal connection" between the informer and the target of the search.[13]

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".[14]

The justice is entitled to draw reasonable inference from the facts set out in the ITO.[15] It is not necessary that the affiant spell out all inferences they are relying upon.[16]

Experience of Officer
The officer's experience is relevant to the investigative narrative.[17] Training and experience permits an officer to draw inferences and make deductions not otherwise available to a lay person.[18]

  1. ↑ R v Moore 1993 CanLII 17 (BC CA), (1993), 81 CCC (3d) 161 (BCCA) aff'd on appeal
    R v Brown, 2008 ABQB 663 (CanLII), at para 50, 64
    R v Kensington Income Tax, [1917] 1 K.B. 486 (C.A.)
    Church of Scientology and The Queen (No. 6), Re, 1987 CanLII 122 (ON CA)
    United States of America v Friedland, 1996 CanLII 8213 (ON SC), [1996] O.J. No. 4399 (Gen.Div.), at paras 26-29
    R v Araujo, 2000 SCC 65 (CanLII) at para 46
    R v Nguyen, 2011 ONCA 465 (CanLII), at para 48
  2. ↑ Araujo, supra at para 46-47
  3. ↑ R v Ling, 2009 BCCA 70 (CanLII) at paras 31 to 32
  4. ↑ R v Rocha, 2012 ONCA 707 (CanLII)
    R v White, 2017 ONSC 5647 (CanLII), at para 33
  5. ↑ R v Duncan (W.), 2004 MBCA 64 (CanLII) at para 32
  6. ↑ R v Ling, 2009 BCCA 70 (CanLII) at para 40
  7. ↑ R v Sanchez, 1994 CanLII 5271 (ON SC), (1994), 93 CCC (3d) 357 (Ont. Ct. Gen. Div.) at para 20
  8. ↑ R v Chambers 1983 CanLII 245 (BC CA), (1983), 9 CCC (3d) 132 (BCCA) at p. 143 aff'd 1986 CanLII 22 (SCC), (1986), 26 CCC (3d) 353 (S.C.C.)
    R v Concepcion, 1994 CanLII 1746 (BC CA), (1994), 48 BCAC 44 (B.C.C.A)
  9. ↑ Araujo at para 46
  10. ↑ e.g. R v Nguyen, 2011 ONCA 465 (CanLII) - CA overturns decision to invalidate warrant for failing to mention lack of suspicious activity in front of grow-up house
  11. ↑ Morelli at para 79
  12. ↑ e.g. R v Ling
  13. ↑ R v Morley, 2013 BCSC 463 (CanLII), at para 50
  14. ↑ R v Brown at para 64
    R v Middleton, 2000 BCCA 660 (CanLII) at para 18, 19
  15. ↑ R v Schiers, 2003 NSCA 138 (CanLII) at para 15
    R v Durling, 2006 NSCA 124 (CanLII) at para 20, 27
    R v Jackson 1983 CanLII 244 (BCCA) at p. 131
    R v Sanchez, 1994 CanLII 5271 (ONSC) at p. 365, 370
    R v Church of Scientology, 1987 CanLII 122 (ONCA) at p. 514 to 515
  16. ↑ Re Lubell, at p. 190
  17. ↑ R v Ngo, 2011 ONSC 6676 (CanLII) at para 35(4)
    R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] OJ NO 3754
  18. ↑ R v Jacques and Mitchell, 1996 CanLII 174 (SCC) at p 12
    R v Lawes, 2007 ONCA 10 (CanLII) at para 4
    R v Simpson 1993 CanLII 3379 (ONCA) at p. 501
    R v Juan, 2007 BCCA 351 (CanLII) at para 19
    R v Tran, 2007 BCCA 491 (CanLII) at para 12
    R v Mouland, 2008 SKCA 105(*no CanLII links) at para 26 to 27
    R v Ingle, 2007 BCCA 445 (CanLII), [2007] BCJ No 2024 at para 53
    R v Rajaratnam, 2006 ABCA 333 (CanLII) at p. 559
    R v Grotheim, 2001 SKCA 116 (CanLII) at para 30

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.Cite error: Closing </ref> missing for <ref> tag

Description of the Location to be Searched

See also: General Warrants#Content of Warrant

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.[1]

The ITO must sufficiently describe the location to be searched.[2] The description should be appropriate "description should be appropriate to the nature of the locus in question".[3]

  1. ↑ R v Wisdom, 2012 ONCJ 54 (CanLII) at para 45
    Fontana, "The Law of Search and Seizure" (8th ed.) at p.87 (“the search warrant process is location-critical and a high degree of precision is expected in both the supporting documents and the warrant itself...Vagueness in the description of premises invites, as a consequence, mistaken searches of wrong places or premises or innocent premises and remedial consequences under the Canadian Charter of Rights and Freedoms”)
  2. ↑ R v Parent, 1989 CanLII 217 (YK CA)
  3. ↑ Fontana

Motor Vehicles

A motor vehicle can be both a location to be searched as well as the actual thing to be searched for.[1]

  1. ↑ R v Rafferty, 2012 ONSC 703 (CanLII) at para 43

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.[1]

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.[2]

For a search of an apartment building, the warrant must specify the unit number.[3]

A warrant is still valid where the address is wrong or vague in one section of the ITO but valid in another section.[4]

Where the ITO is inconsistent with the warrant some level of error is permissible as long as the location remains sufficient clear.[5]

It is possible for a single ITO and warrant to describe and authorize several premises.[6]

  1. ↑ Fontana at p. 87
  2. ↑ R v Vu, 2004 BCCA 230 (CanLII)
  3. ↑ R v Wisdom, 2012 ONCJ 54 (CanLII) at para 44 ("The warrant fails to specifically authorize a search of apartment 303 which is where the applicants resided")
  4. ↑ R v Sexton, 2011 NBCA 97 (CanLII) at paras 4-9
  5. ↑ R v Parker, 2006 NBPC 38 (CanLII) - address on warrant varied from address in ITO. ITO address was correct. Warrant found valid.
    R v Jacobson, 2009 ONCA 130 (CanLII) - correct address in ITO, error in warrant address. Warrant valid to search car only, lower expectation of privacy in car
  6. ↑ R v N.M., 2007 CanLII 31570 (ON SC) at para 363 per Hill J.

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."[1]

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.[2]

Generally, an approving justice should be satisfied that:[3]

  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:[4]

  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."[5]

A motor vehicle can be both a location to be searched as well as the actual thing to be searched for.[6]

See also R v Soloway and Mills (1930), 24 Alta.L.R. 410 (Alta. S.C.A.D.)(*no CanLII links) .

  1. ↑ R v Du, 2004 ABQB 849 (CanLII) at para 12
  2. ↑ Du at para 12
  3. ↑ R v Adams 2004 CanLII 12093 (NL PC) at para 24
  4. ↑ Du at para 12
    See also see R v Church of Scientology, 1987 CanLII 122 (ON CA)
    Re: Lubell and The Queen (1973), 11 CCC (2d) 188 (Ont. H.C.J.)(*no CanLII links)
    R v Silverstar Energy Inc., 2004 BCSC 1115 (CanLII), [2004] BCJ No. 1767 (B.C.S.C.)
    R v Sanchez and Sanchez, 1994 CanLII 5271 (ON SC), 1994 CanLII 5271 (ON SC), (1994), 93 CCC (3d) 357 (Ont. Ct. Gen. Div.)
    R v PSI Mind Development Institute Ltd. (1977), 37 CCC (2d) 263 (Ont. H.C.)(*no CanLII links)
  5. ↑ Du, supra at para 13
  6. ↑ R v Rafferty, 2012 ONSC 703 (CanLII) at para 43

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.[1] It is not necessary that the description set out the specific charge or be of quality for pleadings at trial.[2]

It is not necessary that the ITO be as specific in the offence as the wording in the indictment.[3]

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.[4]

The ITO must also set out the evidentiary basis that makes out the offence.[5]

Evidence supporting a charge of accessing child pornography cannot support a warrant based on an investigation for possessing child pornography. [6]

It is not necessary that the suspect be named. It is enough to say "unknown persons".[7]

  1. ↑ R v Anderson and Slater, 2012 BCPC 496 (CanLII) at para 37
    R v Branton, 2001 CanLII 8535 (ON CA) at para 35 to 37 - simply stating the act without mention of the specific offence is not enough
  2. ↑ Anderson and Slater at para 37
    R v Times Square Book Store, 1985 CanLII 170 (ON CA), (1985), 21 CCC (3d) 503, p. 512
  3. ↑ R v Royal American Shows Incorporated, 1975 CanLII 260 (AB QB)
  4. ↑ R v Kent, 1993 CanLII 3231 (NS CA)
    c.f. R v Lemon, [2004] O.J. No. 6043 (Ont. S.C.)(*no CanLII links)
  5. ↑ Capostinsky v Olsen, 1981 CanLII 643 (BC SC) - warrant quashed due to conclusory statement by officer that BAC level was over 0.08 R v Cunsolo, 2008 CanLII 51468 (ON SC) at para 73 - ITO must describe how fraud was committed
  6. ↑ R v Morelli 2010 SCC 8 (CanLII), [2010] 1 SCR 253 at paras 13-38
  7. ↑ R v Sanchez, 1994 CanLII 5271 (ON SC) ("in the instance of the crime of conspiracy such identification constitutes a significant investigative challenge ...The offence is not infrequently investigated, for some dura­tion, as committed by "a person or persons at present unknown"."

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.[1]

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.[2]

The informant must pledge that the items not simply "could" be found but would be found. [3]

Rooming House
All rooms within a rooming house has the same level of privacy as a single residence.[4] 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".[5]

  1. ↑ R v Turcotte, 1987 CanLII 984 (SK CA), (1987), 39 CCC (3d) 193 (Sask.C.A)
  2. ↑ e.g. R v Davis, 2012 ABPC 125 (CanLII) at para 26
    e.g. R v Morse, 2006 CanLII 63690 (ON SC)
    R v Turcotte, 1987 CanLII 984 (SK CA), (1987), 39 CCC (3d) 193 (Sask.C.A)
  3. ↑ R v Kelly 2010 NBCA 89 (CanLII) at para 39
  4. ↑ R v Campbell, [2011] 2 SCR 549, 2011 SCC 32 (CanLII), at para 15
  5. ↑ Campbell, at para 15

Time Limitation on the Search

There should be a specified or inferred time period in which the search is to be conducted.[1] There is some suggestion that it should not be fatal.[2]

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.[3]

  1. ↑ R v Du, 2004 ABQB 849 (CanLII) - warrant quashed for failing to set time range of search
  2. ↑ R v Jones, 2011 ONCA 632 (CanLII)
  3. ↑ R v Rafferty, 2012 ONSC 703 (CanLII) at para 23

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 (NL SCTD) at para 30
    R v Nguyen, 2011 ONSC 2187 (CanLII) 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)
  2. ↑ R v Ballendine, 2011 BCCA 221 (CanLII) at para 54
  3. ↑ Regina v Brown, 2007 BCPC 448 (CanLII) at para 65
  4. ↑ R v Carroll, 1989 CanLII 206 (NS CA)
  5. ↑ R v Ward, 2012 ONCA 660 (CanLII) 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")
    R v Brown, 2007 BCPC 448 (CanLII) at para 82
  6. ↑ Ward at para 115
    R v Neveu, 2005 NSPC 51 (CanLII) at para 18
    R v Wonitowy, 2010 SKQB 346 (CanLII) at paras 37 to 50
    Brown, supra at para 82
  7. ↑ R v Stemberger, 2012 ONCJ 31 (CanLII) 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.

  1. ↑ Salhany, Canadian Criminal Procedure, Sixth Edition, at 3.1880
    see also: R v Parsons, 2012 CanLII 42275 (NL SCTD) - leave refused
  2. ↑ R v Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52 (SCC)
  3. ↑ R v Pires and Lising, [2005] 3 SCR 343, 2005 SCC 66 (CanLII) at paras 33 and 34

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), (1998), 173 N.S.R. (2d) 1 (C.A.) at para 91
    R v Evans (E.D.), 2014 MBCA 44 (CanLII), at para 17
  2. ↑ Morris, supra at para 91

Relying on Redacted ITOs

See also: Confidential Informers

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.[1] The summary is vetted by the judge and then provided to defence counsel.[2] The summary must provide sufficient detail as to permit full answer and defence.[3]

  1. ↑ R v Reid, 2016 ONCA 524 (CanLII) at para 19
  2. ↑ Reid, ibid. at para 19
  3. ↑ e.g. Reid

Frequent Errors

Carelessness in drafting is not generally sufficient to invalidate the warrant. It must be intentionally false statements or omissions.[1] But it is not automatic. The court must consider their impact upon the basis of the decision to authorize.[2]

  1. ↑ R v Prosser, 2014 ONSC 2645 (CanLII), at para 52 See R v Villa, 1988 CarswellOnt 1641 (H.C.J.), at para 14
  2. ↑ R v Garofoli, at p. 1452, (“fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”.)
    R v Pires, at para 8

Excising or Severing Errors

Where an authorization contains both valid and invalid parts, the court is permitted to excise the invalid parts "So long as they are not so interwoven that they cannot be separated".[1]

However, there's the possibility for confusion or over-broad seizure then the warrant should not be excised.[2]

  1. ↑ R v Grabowski, [1985] 2 SCR 434, 1985 CanLII 13 (SCC)
    R v Sandham, 2009 CanLII 59684 (ON SC), [2009] OJ No 4559
    R v Nurse, 2014 ONSC 1779 (CanLII)
    See also R v Jacobson, [2004] O.J. No. 933 (S.C.J.)
    R v Sonne, [2012] O.J. No. 6243 (S.C.J.)
  2. ↑ Nurse at para 35
    R v N.N.M., 2007 CanLII 31570 (ON SC), [2007] O.J. No. 3022 (S.C.J.)

Omissions, Mischaracterizations, Material Non Disclosure

See also: Standard of Review of a Judicial Authorization#Quality of Drafting

Overbroad Authority

It is essential that the warrant not be overly broad. The description of the targets of the search should not be so vague as to give the police the ability to rummage through the premises. [1]

A warrant permitting a search of a computer does not give unfettered access to all the data on the computer. The warrant should detail the types of evidence sought.[2]

  1. ↑ Church of Scientology and The Queen (No. 6), Re, 1987 CanLII 122 (ON CA): ("The description of what is to be searched for must not be so broad and vague as to give the searching officers carte blanche to rummage through the premises of the target. The things must be described in such a way as to guide the officer or officers carrying out the search and assist them in identifying the object.")
  2. ↑ R v Jones, 2011 ONCA 632 (CanLII) at para 24, 25, 46

Failure to Take Investigative Steps

It is generally accepted that in the Garofoli analysis challenging a warrant, the police "are to be judged on what they did, not what they could have done".[1] Thus, the failure of taking further investigative steps before seeking a warrant will not invalidate the warrant.

  1. ↑ R v Vu, 2011 BCCA 536 (CanLII) at para 44, 45

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) at para 49
  2. ↑ R v Croft, 2014 ABQB 23 (CanLII)

See Also

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