Judicial Authorization Standard of Review

From Criminal Law Notebook
This page was last substantively updated or reviewed April 2021. (Rev. # 79836)

General Principles

See also: Applying for Judicial Authorizations

Before a party can make such an application to exclude evidence collected by way of a search warrant, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.

A trial judge is entitled to determine whether an authorization "could have been granted based on the record that was before the authorizing justice, as amplified on review".[1]

A "Garofoli Application" refers to the procedure for determining the validity of a judicial authorization.[2] This test applies equally to any motion to quash a court authorization.[3]

Test on Review

The base test for review of a search warrant is "whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge".[4]

The standard of review for an authorization is a "limited" one.[5] If the authorizing justice "could have" issued the warrant, then the judge should not interfere.[6] Stated differently, the reviewing judge must be satisfied that there is "no justifiable basis" upon which the justice could have granted the warrant.[7]

This test contemplates whether the information found in the ITO by itself and "drawing reasonable inferences" could have been sufficient.[8]

A reviewing court may invalidate a warrant despite there being reasonable and probable grounds where it is for the purpose of protecting "the process and the preventative function it serves".[9] This is however a high threshold.[10]

When assessing the validity of the ITO the analysis must not elevate quibbles into substance.[11]

A warrant is to be evaluated based on what the investigators did do, not what the investigators could have done. A failure to take investigative steps is only relevant as it relates to whether the ITO discloses sufficient grounds to authorize the warrant.[12]

Where there is an application to quash a warrant and return seized items, it is proper that the police refrain from re-applying for a new search warrant. It is preferred that they wait until such time as the warrant is quashed and then re-apply.[13]

Assessing Reliability

There is no need for the affiant to expressly refer to the testimonial reliability of the informant. The reviewing judge can assess that from the factual circumstances revealed in the affidavit.[14] The court is to take a "global view" of the information contained in the affidavit.[15]

Assessing ITO

The analysis of a warrant and ITO should be on "the whole of the document, not a limited focus upon an isolated passage or paragraph". It should be a "common sense review not line-by-line word-by-word dissection"[16]

The applicant, in drafting the ITO, must "make full, frank and fair disclosure of all material facts in the ITO supporting the request".[17]The facts must be set out "truthfully, fully and plainly".[18] There must be "candour" and "accuracy".[19]

Appeal

An appeal of a trial judge decision reviewing a search warrant issued by a justice of the peace is to be reviewed for "whether the reviewing judge erred in law by interpreting and applying the standard to determine whether the issuing judge properly issued the warrant".[20]

  1. ↑ R v Perkins, 2021 BCCA 9 (CanLII), per Griffin JA, at para 14 ("trial judge’s role is to determine whether the order could have been granted based on the record that was before the authorizing justice, as amplified on review, not whether, in the view of the trial judge, the order should have been granted")
    R v Mackey, 2020 ONCA 466 (CanLII), per Thorburn JA, at para 54
  2. ↑ R v Scott, 2015 MBQB 87 (CanLII)130 WCB (2d) 418, per Edmond J, at para 8
  3. ↑ R v Vice Media Canada Inc, 2017 ONCA 231 (CanLII), 352 CCC (3d) 355, per Doherty JA
  4. ↑ R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J (9:0), at para 16 ("The question for the reviewing judge is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge" [quotations omitted])
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J, at para 51 ("The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.")
    see also: R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 40
    R v Campbell, 2011 SCC 32 (CanLII), [2011] 2 SCR 549, per Charron J, at para 14
    R v Dionisi, 2012 ABCA 20 (CanLII), 285 CCC (3d) 502, per curiam, at para 24
    R v Lee, 2011 ABCA 310 (CanLII), 532 WAC 65, per O’Brien JA, at para 14
  5. ↑ Re Times Square Book Store and The Queen, 1985 CanLII 170 (ON CA), 21 CCC (3d) 503, per Cory JA at p. 514
  6. ↑ Araujo, supra, at para 51
  7. ↑ R v Whalen, 2015 NLCA 7 (CanLII), 363 Nfld & PEIR 289, per Barry JA
  8. ↑ R v Wallace, 2016 NSCA 79 (CanLII), per Beveridge JA, at para 27
  9. ↑ R v Fan, 2013 BCSC 445 (CanLII), per BJ Brown J, at para 17
    R v Bishop, 2010 BCSC 1927 (CanLII), per Cullen J, at paras 47 to 61
    R v Colbourne, 2001 CanLII 4711 (ON CA), [2001] OJ No 3620 (CA), per Doherty JA
  10. ↑ Fan, supra, at para 17
    Lahaie v Canada (Attorney General), 2010 ONCA 516 (CanLII), 267 OAC 135, per curiam, at para 40
  11. ↑ R v Concepcion, 1994 CanLII 1746 (BCCA), 48 BCAC 44, per Finch JA
  12. ↑ R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at paras 21 to 22
  13. ↑ R v Du, 2004 ABQB 937 (CanLII), per Macklin J, at para 20 ("While the Crown quite properly took the view that it should not apply for a fresh warrant while the issue of the stay [arising from a quashed warrant] remained extant, there was nothing to prevent the Crown from doing or preparing whatever was necessary for an application to be brought almost immediately after the results of this application were known.")
  14. ↑ Al-Maliki, supra at para 14 and 16
  15. ↑ Al-Maliki, supra at para 15
  16. ↑ R v Cunsolo, 2008 CanLII 48640 (ONSC), [2008] OJ No 3754, per Hill J, at para 135
  17. ↑ R v Nguyen, 2007 ONCA 24 (CanLII), per curiam, at para 48
    R v NNM, 2007 CanLII 31570 (ONSC), 223 CCC (3d) 417, per Hill J, at para 320
  18. ↑ NNM, ibid., at para 320
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J at 469 to 470
  19. ↑ NNM, ibid., at para 320
    R v Morris, 1998 CanLII 1344 (NSCA), 134 CCC (3d) 539, per Cromwell JA, at p. 551 ("requirement of candour is not difficult to understand; there is nothing technical about it")
    R v Hosie, 1996 CanLII 450 (ON CA), 107 CCC (3d) 385, per Rosenberg JA, at p. 399 (a justice can only perform their duty if "provided with accurate and candid information")
    R v Agensys Intl Inc, 2004 CanLII 17920 (ON CA), 187 CCC (3d) 481, per Gillese JA, at p. 491
  20. ↑ R v Liberatore, 2014 NSCA 109 (CanLII), 318 CCC (3d) 441, per Fichaud JA

Reasonable Grounds

See Reasonable and Probable Grounds

Standing

See also: Charter Applications

An accused who was subject of a judicial authorization that relied upon the results of a previous authorization does not have standing to challenge that previous authorization as it did not contemplate the accused.[1]

A co-conspirator does not have standing to challenge the wiretap that is alleged to have breached another co-conspirator's rights.[2]

  1. ↑ R v Chang, 2003 CanLII 29135 (ON CA), (2003) 173 CCC (3d) 397, per O’Connor ACJ and Armstrong JA
  2. ↑ R v Montgomery, 2016 BCCA 379 (CanLII), 341 CCC (3d) 147, per Frankel JA, at para 103
    R v Cheung, 1997 CanLII 3763 (BCCA), 119 CCC (3d) 507, per Braidwood JA, at paras 64 to 65
    cf. R v Montoute, 1991 CanLII 2719 (AB CA), 62 CCC (3d) 481, per Harradence JA, at pp. 506‒507

Presumptions and Burdens

A warrant is presumed valid.[1] The applicant bears the burden to establish that there was insufficient basis for issuing the warrant.[2] This presumption applies not only to the warrant but the ITO as well.[3]

  1. ↑ R v Campbell, 2010 ONCA 588 (CanLII), 261 CCC (3d) 1, per Juriansz JA, at para 45 aff'd at 2011 SCC 32 (CanLII), per Charron J
  2. ↑ Campbell, ibid., at para 45
    R v Shier, [1998] OJ No 5751(*no CanLII links) , at para 48
    Quebec (Attorney General) v Laroche, 2002 SCC 72 (CanLII), [2002] 3 SCR 708, per LeBel J
  3. ↑ R v Collins, 1989 CanLII 264 (ON CA), 48 CCC (3d) 343, per Goodman JA, at p. 356

Degree of Deference

The reviewing judge is not examining police conduct with great attention to minor details or dissection. [1] Rather the judge must look at whether there is sufficient evidence for the warrant.[2] The warrant must be read in its entirety.[3]

The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued.[4]

The reviewing judge should not "substitute his or her own view for that of the authorizing judge."[5]

A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".[6]

The review should not be an examination of police conduct "with a fine-tooth comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence".[7]

  1. ↑ R v Grant, 1999 CanLII 3694 (ON CA), 132 CCC (3d) 531, per Charron JA, at p. 543 (CCC) (leave to appeal refused [1999] SCCA No 168 , 150 CCC (3d) vi)
    R v Chan, 1998 CanLII 5765 (ON CA), [1998] OJ No 4536 (CA), per curiam, at para 4
    R v Melenchuk and Rahemtulla, 1993 CanLII 1011 (BCCA), [1993] BCJ No 558, per Gibbs JA, at paras 15 to 18
    Simonyi-Gindele et al v British Columbia (Attorney General), 1991 CanLII 1341 (BCCA), , 2 BCAC 73 (CA), per Macdonald JA, at para 21 ("It is not appropriate, when testing the validity of a warrant, to parse and microscopically examine words, phrases or paragraphs in isolation, as the appellants urge us to do.")
    R v Saunders, 2003 NLCA 63 (CanLII), 181 CCC (3d) 268, per Wells CJ and Rowe JA, the reviewing judge should not to deconstruct every paragraph in the ITO
  2. ↑ R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA, at para 57
  3. ↑ Simonyi-Gindele, supra, at para 21 ("The warrant must be read in its entirety in order to arrive at the meaning that the person exercising it would attribute to it")
  4. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J, at para 54
    See also R v Witaker, 2008 BCCA 174 (CanLII), 254 BCAC 234, per Frankel JA
    R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J, at para 56
    R v Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223, per Sopinka J, at para 49
    R v Veinot, 1995 CanLII 4262, , 144 NSR (2d) 388 (CA), per Jones JA, at p. 391
    R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 40
    R v Al-Maliki, 2005 BCCA 157 (CanLII), 201 CCC (3d) 96, per Rowles J at para 19 (“[t]he test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether, in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge”)
  5. ↑ Garofoli, supra
  6. ↑ R v (JE), 1989 CanLII 1495 (NSCA), 52 CCC (3d) 224, per Macdonald JA
  7. ↑ R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA, at para 57

Quality of Drafting

See also: Information to Obtain a Search Warrant

Flaws are to be expected. [1]Inaccuracies or material facts not disclosed does not necessarily detract from the existence of statutory preconditions.[2]

It is only important that the "core substance of the ITO could support the justice of the peace's exercise of discretion or issue the warrant".[3]

Police are not "legal draftspersons" and cannot be expected to "spell out things with the same particularity of counsel"[4]

The warrant must be read in its entirety to understand its meaning.[5]

The ITO is examined on the whole, and not piecemeal. [6]

It should be "reliable, balanced and material facts supporting the asserted grounds of belief". It should be "clear, concise, legally and factually sufficient"[7]

The ITO should not need to "replicate a Crown disclosure brief" and it does not "need to include every minute detail of the police investigation".[8]

A lack of chronological order or an otherwise confusing order is not necessarily fatal so long as it has a reasonable approach.[9]

Grammatical errors that do not "mislead" in a significant way.[10]

  1. ↑ R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA, at para 58
  2. ↑ R v Pires, 2005 SCC 66 (CanLII), [2005] 3 SCR 343, per Charron J (7:0), at para 30
  3. ↑ R v Ngo, 2011 ONSC 6676 (CanLII), OJ No 5023, per Hill J, at para 34
  4. ↑ Ngo, ibid., at para 34
    R v Durling, 2006 NSCA 124 (CanLII), 214 CCC (3d) 49, per MacDonald CJ, at para 19
    R v Sanchez, 1994 CanLII 5271 (ONSC), 93 CCC (3d) 357, per Hill J, at p. 364
    R v Melenchuk, 1993 CanLII 1011 (BCCA), 40 WAC 97, per Gibbs JA, at para 15 ("It would be impractical to expect of an officer swearing an information in these circumstances the precise prose of an Oxford grammarian, the detailed disclosures of a confessional and the legal knowledge of a Rhodes scholar.")
  5. ↑ Simonyi-Gindele v Sliter, 1991 CanLII 984 (BCCA), 5 WAC 73, per Gibbs JA ("The warrant must be read in its entirety in order to arrive at the meaning that the person exercising it would attribute to it.")
  6. ↑ R v Whitaker, 2008 BCCA 174 (CanLII), 254 BCAC 234, per Frankel JA
    R v Brachi, 2005 BCCA 461 (CanLII), 201 CCC (3d) 35, per Smith JA
    Re Church of Scientology & the Queen (No. 6), 1987 CanLII 122 (ON CA), 31 CCC (3d) 449, per curiam
  7. ↑ Ngo, supra, at para 34
  8. ↑ Ngo, supra, at para 34
    CBC v AG of NB, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per Lebel J, at p. 470
    R v Ling, 2009 BCCA 70 (CanLII), 241 CCC (3d) 409, per Bauman JA, at para 43
  9. ↑ e.g. R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at para 45
  10. ↑ R v McNeice, 2010 BCSC 1544 (CanLII), BCJ No 2131, per Meiklem J, at para 33

Errors, Omissions and Mischaracterizations in the Warrant Order

Time Limitation on the Search

See Information to Obtain a Judicial Authorization (Element C)

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), 31 CCC (3d) 449, per curiam: ("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), 31 CCC (3d) 449, per Blair JA, at paras 24, 25, 46

Errors, Omissions and Mischaracterizations in Information to Obtain

In the course of a review of an ITO and warrant, the discovery of "fraud, non-disclosure, misleading evidence and new evidence" is relevant but their "sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge".[1]

Affiant Standard of Care

Carelessness in drafting is not generally sufficient to invalidate the warrant. It must be intentionally false statements or omissions.[2] But it is not automatic. The court must consider their impact upon the basis of the decision to authorize.[3]

Knowledge Requirement of The Affiant for Errors or Omissions

Errors or omissions that are found must be shown to have been known, or should have been known, by the affiant.[4]

  1. ↑ R v Hafizi, 2016 ONCA 933 (CanLII), 343 CCC (3d) 380, per Brown JA, at para 44
  2. ↑ R v Prosser, 2014 ONSC 2645 (CanLII), OJ No 2543, per Wilson J, at para 52 See R v Villa, 1988 CarswellOnt 1641 (H.C.J.)(*no CanLII links) , at para 14
  3. ↑ Garofoli, supra, 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, 2005 SCC 66 (CanLII), [2005] 3 SCR 343, per Charron J (7:0), at para 8
  4. ↑ World Bank Group v Wallace, 2016 SCC 15 (CanLII), [2016] 1 SCR 207, per Moldaver and Côté J (9:0)

Material Omissions and Non-Disclosure

A failure to draft an ITO that is full, fair and frank may be a breach of s. 8 of the Charter.[1]

"Materiality" must be evaluated on the "totality of the circumstances".[2]

It is improper for the warrant to contain incomplete, misleading or misrepresented information on the investigation. This can occur where the affiant is deliberately kept out of the investigation and only given favourable information to support the warrant. [3]

Material non-disclosure of fact made strategically by the police (such as for an improper motive including the intention to mislead the authorizing justice) may invalidate the warrant regardless of whether there existed reasonable and probable grounds to authorize the warrant.[4]

Non-disclosure of "neutral" facts is acceptable and not necessary.[5]

The ITO does not have to include non-observed details.[6]

Where there is an innocent material omission (ie. an omission without any improper motive), the reviewing judge must ask "whether the omission leaves the issuing judge with an incorrect impression or an insufficient basis on which to issue the warrant".[7]

Criminal Record

The affiant's failure to indicate a source's criminal record will only be a Charter breach of s. 8 where the information is "material".[8]

As a "best practice for police", they should provide always provide an informant's criminal record.[9]

  1. ↑ R v Rocha, 2012 ONCA 707 (CanLII), 292 CCC (3d) 325, per Rosenberg JA
  2. ↑ R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA, at paras 57 and 58
  3. ↑ e.g. R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 58
    R v NNM, 2007 CanLII 31570 (ONSC), 223 CCC (3d) 417, per Hill J, at para 354 (“... as a straw man affiant apparently deliberately kept in the dark ...”)
  4. ↑ R v McElroy, 2009 SKCA 77 (CanLII), 464 WAC 122, per Wilkinson JA, at para 30
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J
  5. ↑ R v Readhead, 2008 BCCA 193 (CanLII), per Lowry JA
  6. ↑ R v Nguyen, 2011 ONCA 465 (CanLII), 273 CCC (3d) 37, per Blair JA, at paras 49, 50
  7. ↑ McElroy, supra , at para 30
  8. ↑ R v White, 2017 ONSC 5647 (CanLII), per De Sa J, at para 35
  9. ↑ White, ibid., at para 34
    R v Rose, 2015 ONCA 183 (CanLII), per curiam

False or Misleading Information

Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization."[1]

The warrant will typically be invalid if the misstatement or omission was deliberate or a finding of bad faith. [2] The quashing is necessary to avoid corruption of the process.[3] However, where the justice "could have" granted the warrant regardless of the deception, it may still be valid.[4]

However, at times a poorly drafted and misleading warrant will, on its own, invalidate the warrant.[5]

Deliberate Misleading

Deliberately misleading information should be excised from the ITO. Where it taints the ITO as a whole it may invalidate the warrant.[6]

A "deliberately misleading" ITO will invalidate the warrant.[7]

Error on Source

A warrant will be invalidated by the claimed basis to be "reliable, confidential sources" when in fact it was based on a wiretap.[8]

  1. ↑ R v Bisson, 1994 CanLII 46 (SCC), [1994] 3 SCR 1097; (1995), 94 CCC (3d) 94, per curiam, at p. 1098
  2. ↑ R v Melenchuk, 1993 CanLII 1011 (BCCA), 24 BCAC 97, per Gibbs JA
    R v Donaldson, 1990 CanLII 630, 58 CCC (3d) 294, per Hinkson JA - police deliberated withheld information from the JP
    R v Sismey, 1990 CanLII 1483 (BCCA), 55 CCC (3d) 281, per Lambert JA, at p. 285
    R v Innocente, 1992 CanLII 2449 (NSCA), 113 NSR (2d) 256 (S.C.), per Hallett JA
    R v Silvestrone, 1991 CanLII 5759, 66 CCC (3d) 125, per Toy JA, at p. 136
    R v Brassard, 1992 CanLII 8136 (SKQB), 77 CCC (3d) 285, per Noble J
    R v Dellapenna, 1995 CanLII 428 (BCCA), 62 BCAC 32, per Southin JA
    R v Fletcher, 1994 CanLII 4169 (NS SC), 140 NSR (2d) 254, per Carver J
  3. ↑ R v Maton, 2005 BCSC 330 (CanLII), 65 WCB (2d) 186, per Romilly J, at para 26
    R v Morris, 1998 CanLII 1344, 134 CCC (3d) 539, per Cromwell JA, at para 44 - officer must exercise "honesty, good faith and diligence"
  4. ↑ R v Bisson, 1994 CanLII 46 (SCC), [1994] 3 SCR 1097, per curiam upholding Proulx JA in 1994 CanLII 5328 (QC CA), 87 CCC (3d) 440, per Proulx JA
  5. ↑ e.g. R v Norris, 1993 CanLII 681 (BCCA), (1993), 35 BCAC 133, per McEachern JA
  6. ↑ Morris, supra, at p. 553 (CCC)
  7. ↑ R v Innocente, 1992 CanLII 2449 (NSCA), 309 APR 256, per Hallett JA
  8. ↑ R v Donaldson, 1990 CanLII 630 (BCCA), 58 CCC (3d) 294, per Hinkson JA

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), 285 CCC (3d) 160, per Frankel JA, at paras 44, 45

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 CanLII 13 (SCC), [1985] 2 SCR 434, per Chouinard J
    R v Sandham, 2009 CanLII 59684 (ONSC), [2009] OJ No 4559, per Heeney J
    R v Nurse, 2014 ONSC 1779 (CanLII), OJ No 5004, per Coroza J, at para 32
    See also R v Jacobson, 2004 CanLII 5912 (ONSC), [2004] OJ No 933 (SCJ), per Ferguson J
    R v Sonne, 2012 ONSC 584 (CanLII), [2012] OJ No 6243 (SCJ), per Spies J
  2. ↑ Nurse, supra, at para 35
    R v NNM, 2007 CanLII 31570 (ONSC), [2007] OJ No 3022 (SCJ), per Hill J

Excised and Redacted Portions of ITO

Inaccurate, omitted, or misleading information in an ITO does not necessarily render it invalid. Inaccurate information can be excised or expunged from the ITO, and re-evaluated without the offending information.[1]

Where a reviewed ITO contains redacted content, the reviewing judge must consider whether, given the information available in the ITO, the justice could have issued the warrant on the basis of what remains of the edited ITO.[2]

  1. ↑ See R v Bisson, 1994 CanLII 46 (SCC), [1994] 3 SCR 1097, 94 CCC (3d) 94, per curiam, at pp. 95-96
    R v Budd, 2000 CanLII 17014 (ON CA), 150 CCC (3d) 108, per Rosenberg JA (3:0), at paras 20 to 23
    R v Agensys International Inc, 2004 CanLII 17920 (ON CA), 187 CCC (3d) 481, per Gillese JA (3:0), at para 32
    R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at para 33
  2. ↑ Pitre v R, 2011 NBCA 106 (CanLII), 984 APR 203, per Drapeau CJ, at para 34

Procedure for Review of Warrant

See also: Voir Dire#Challenging Warrant Validity

When an accused person seeks to challenge an ITO supporting a warrant by cross-examination of the informant the procedure should go as follows:[1]

  1. The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted;
  2. If the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused must obtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination;
  3. Cross-examination should proceed to the extent permitted by the order granting leave;
  4. Re-examination, if any, should follow the cross-examination; and
  5. The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant.
  1. ↑ R v Wilson, 2011 BCCA 252 (CanLII), 272 CCC (3d) 269, per Frankel JA (3:0), at paras 62 to 67, 69

Threshold Test to Challenge a Warrant

There is no open right to challenge a search warrant. The accused must apply for the right to have a voir dire by way of a hearing, sometimes called a "Vukelich hearing".[1] The determination of whether to permit the accused to challenge the warrant can be made on the basis of submissions of counsel.[2] Where the threshold has been passed, it does not necessarily follow that witnesses be called. The court may allow only arguments based on the face of the warrant. [3]

A hearing to challenge a warrant is often referred to as a "Garofoli hearing".[4]

  1. ↑ R v Vukelich, 1996 CanLII 1005 (BCCA), 108 CCC (3d) 195, per McEachern JA
  2. ↑ Vukelich, ibid., at paras 17, 26
    R v Wilson, 2011 BCCA 252 (CanLII), 272 CCC (3d) 269, per Finkel JA, at para 62
  3. ↑ Wilson, supra, at paras 62, 63
  4. ↑ R v Fearon, 2020 ONCJ 25 (CanLII), per Band J, at para 10 ("A Garofoli hearing is a pre-trial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool. It is not a trial.")

Types of Challenges to the Warrant

Challenging to a warrant may come as an attack on the facial or sub-facial validity. The court has discretion whether to treat each attack separately or in a single voir dire.[1]

Facial validity

An attack on facial validity involves an examination of the ITO by itself, not involving on amplification or record evidence, and determine whether a justice could have issued the warrant.[2]

Sub-facial validity

An attack on sub-facial validity involves an examination of the form of the ITO with a view to "impeach the reliability of its content" and to determine "whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant".[3] This form of attack can involve the use of amplification evidence, but it should not expand the review to permit the judge from giving his opinion on whether he would have granted the warrant.[4] The reviewing judge must determine whether "authorizing justice could have issued the warrant" if the judge had been aware of the amplification evidence.[5]

A sub-facial review turns on the question of what the affiant knew or ought to have known at the time of the swearing of the affidavit.[6]

  1. ↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA , at para 36
  2. ↑ Sadikov, ibid., at para 37
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J, at para 19
    R v Wilson, 2011 BCCA 252 (CanLII), 272 CCC (3d) 269, per Finkel JA, at para 39
  3. ↑ Sadikov, ibid., at para 38
    Araujo, supra, at para 50
    Wilson, supra, at para 40
  4. ↑ Sadikov, supra, at para 38
  5. ↑ Sadikov, supra, at para 38
    Araujo, supra, at para 51
  6. ↑ R v Sipes, 2009 BCSC 612 (CanLII), per Smart J, at para 41
    World Bank Group v Wallace, 2016 SCC 15 (CanLII), [2016] 1 SCR 207, per Moldaver and Côté JJ, at para 121


Reviewing Redacted or Sealed ITOs

In many instances, the authorizing justice will grant a "sealing" order under s. 487.3. The Crown will typically provide defence with an redacted copy of the ITO to defence counsel.

Where a challenged ITO has been redacted to an extent that the redacted information is insufficient to support the issuance of the warrant, the Crown can invoke "step six of Garofoli" which permits the defence to rely on a vetted summary of redacted information.[1] A summary of the vetted portion of the ITO is reviewed by the judge and then provided to defence counsel.[2] The summary must provide sufficient detail as to permit full answer and defence.[3] If the summary is sufficient, the judge may review and rely on the redacted portion of the ITO.[4]

The accused may use the redacted ITO, the summary of the redacted portions, and any other admissible evidence, to convince the judge that the ITO "could not justify the issuance of the warrant".[5]

This process balances the conflicting interests of enforcing law, protecting privilege, and the accused's right to full answer and defence.[6]

  1. ↑ R v Reid, 2016 ONCA 524 (CanLII), 338 CCC (3d) 47, per Watt JA (3:0), at para 19
    R v Perkins, 2021 BCCA 9 (CanLII), per Griffin JA, at para 19 ("The Garofoli procedure can be briefly summarized as follows. Initially, the information produced to the defence and the court on review of the warrant can be edited to protect the identity of the confidential informant. If, after redaction of the confidential information, the reviewing judge considers the remaining information to be insufficient to support the warrant, the Crown may apply to produce some of the previously redacted material to the judge. This is “step six” of the Garofoli procedure.")
  2. ↑ Reid, ibid., at para 19
    R v Shivrattan, 2017 ONCA 23 (CanLII), 346 CCC (3d) 299, per Doherty JA, at para 11 ("When the Crown invokes “Step Six”, the trial judge gives defence counsel a judicial summary of the redacted parts of the ITO.")
  3. ↑ e.g. Reid, ibid.
  4. ↑ Perkins, supra ("The reviewing judge will only consider the newly unredacted material if satisfied that a judicial summary of it has been provided to the defence that provides the defence with enough knowledge to still be able to challenge it")
  5. ↑ Shivrattan, supra at para 11 ("Defence counsel, using that summary, the redacted ITO and whatever additional information it has available to it—such as Crown trial disclosure or preliminary inquiry transcripts—attempts to convince the trial judge that the contents of the unredacted ITO, which defence counsel has not seen, could not justify the issuance of the search warrant")
    Reid, supra, at paras 84 to 86
    Garofoli, supra at p. 1461
  6. ↑ Perkins, supra, at para 18

Leave to Cross-Examine Affiant ("Garofoli" Motion)

When conducting an attack on the sub-facial validity of the warrant, the accused may seek leave to cross-examine the affiant who swore the ITO for the purpose of questioning the affiant's reliability and credibility.[1]

Threshold

The general rule is that leave should be granted where the judge is "satisfied that cross-examination is necessary to enable the accused to make full answer and defence".[2]

The accused must specifically establish "that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization".[3] Phrased differently, the test is whether there is a "reasonable likelihood" that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge, including the discrediting of one or more of the preconditions to issue the warrant.[4] Generally, this would only include issues of credibility and reliability of the affiant and their sources.[5] The focus on the examination should be on the reasonableness and honesty of the affiant's belief, not the ultimate accuracy of the information.[6]

In certain circumstances the motion can be granted on a wider basis if the accused is able to show a "reasonable basis to believe" that the affiant deliberly mislead the authorizing judge such that it would bring the ITO's credibility into issue.[7]

The is only a "narrow window" for cross-examination of an affiant.[8]

Factors

Cross-examination should not be permitted where "there is no reasonable likelihood that it will impact on the question of admissibility of the evidence".[9]

Where cross-examination is permitted, it should be restricted to "questions that are directed to establish that there was no basis which the authorization could have been granted".[10] The judge may further limit the area of cross-examination to specific issues of controversy.[11]

It should not be used to extend the hearing unnecessarily and should not permit discovery of confidential sources.[12]

Scope

It is not permissible to seek cross-examination on issues relevant to s. 24(2) remedy where it does not also go to the validity of the warrant.[13]

Denial of Request

Where the court denies leave to cross-examine the affiant, the defence may still call other amplification evidence to attack reliability.[14]

Wiretaps

The test applied to affiants of a wiretap is not a stringent one.[15]

See Also: R v Pham, 2009 CanLII 60792 (ONSC), per Hill J for a comprehensive review by Justice Hill.

  1. ↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA (3:0), at para 39
  2. ↑ R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J (5:2), at para 88
  3. ↑ Garofoli, ibid., at paras 88 to 89
  4. ↑ R v Pires; R v Lising, 2005 SCC 66 (CanLII), [2005] 3 SCR 343, per Charron J, at paras 3, 40
    Garofoli, supra, at p. 1654 (SCR)
    R v Soltan, 2019 ONCA 8 (CanLII), per curiam, at para 6 ("...the test that there was a reasonable likelihood that cross-examination of the affiant would elicit testimony tending to discredit the existence of one or more of the preconditions to the issuance of the search warrants")
    Sadikov, supra, at para 45 ("reasonable likelihood that the proposed cross-examination will elicit evidence that tends to discredit the existence of a condition precedent to the issuance of the warrant")
    R v Green, 2015 ONCA 579 (CanLII), 22 CR (7th) 60 at para 34 ("Cross-examination of the affiant will be allowed when the trial judge is satisfied that there is a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the search warrant.")
  5. ↑ Sadikov, supra, at para 40
  6. ↑ Green, supra, at para 34
    Pires, supra, at paras 41 to 43
  7. ↑ , supra, at para 36
  8. ↑ Pires, supra
  9. ↑ R v Pires; R v Lising, supra, at para 31
  10. ↑ Garofoli, supra, at paras 88 to 89
  11. ↑ Pires, supra, at para 10
  12. ↑ Garofoli, supra, at para 87
    Pires, supra, at para 10
  13. ↑ Green, supra, at paras 41 to 42
  14. ↑ Sadikov, supra, at paras 41, 45
  15. ↑ R v Williams, 2003 CanLII 18484 (ON CA), 181 CCC (3d) 414, per Rosenberg JA , at para 11

Amplification Evidence

The reviewing judge is entitled to consider "evidence bearing on the existence in fact of reasonable and probable cause shown to be in the knowledge of the police at the time the warrant was sought.” [1] The judge may consider as amplification, any evidence "relevant to the accuracy of and motivation for the material included in the Information to obtain a search warrant".[2]

Amplification evidence should not be used "to remove the requirement that the informant make their case to the issuing justice in the initial application" or else it "would turn the prior authorization process into a sham."[3] It cannot be used to "retroactively authorize a search that was not initially supported by reasonable and probable grounds".[4]

Correct Drafting Errors

Amplification evidence can be elicited at a voir dire to correct minor errors in the ITO. This will be permitted as "long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice."[5]

It can be permitted to amplify an innocent mis-statement or mis-characterization within the ITO.[6]

Raise Issue of Fraud

Evidence that would tend to show the ITO contained fraudulent or misleading information may result in that information being excised from the ITO.[7] Such evidence would also permit a judge to conclude that "police approach to the prior authorization process was so subversive of it that the warrant should be invalidated.".[8]

Not Retroactive or Outside Knowledge of Affiant

Anything that was not known to the officer at the time of the swearing of the ITO cannot be used in amplification.[9]

Evidence obtained after the execution of the warrant cannot be admitted as amplification evidence.[10]

Evidence

It appears that amplification evidence can take the form of transcripts from preliminary inquiries, police notes and reports.[11]

  1. ↑ R v Gordon, 1999 CanLII 18640 (MB CA), 138 Man. R. (2d) 298 (CA), per Helper JA, at para 36 citing R v Morris, 1998 CanLII 1344 (NSCA), 134 CCC (3d) 539, per Cromwell JA (3:0)
  2. ↑ R v Morris, 1998 NSCA 229 (CanLII), 134 CCC (3d) 539, per Cromwell JA at p. 569 to 569
  3. ↑ R v Morley, 2013 BCSC 463 (CanLII), per Arnold-Bailey J, at para 37
  4. ↑ R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 42
    R v Voong, 2013 BCCA 527 (CanLII), 304 CCC (3d) 546, per MacKenzie JA (3:0), at para 56
  5. ↑ Morelli, supra, at para 41
  6. ↑ R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281, per Sopinka J - ITO was overly specific of address, when informant gave a more general description. Amplification clarified how full address was obtained.
  7. ↑ Morris, supra at p. 569 to 569
  8. ↑ Morris, supra at p. 569 to 569
  9. ↑ R v Ting, 2016 ONCA 57 (CanLII), 333 CCC (3d) 516, per Miller JA (amplification evidence "cannot be used to provide evidence that was not known to the police at the time the ITO was sworn.")
  10. ↑ Voong, supra
  11. ↑ e.g. see R v MacDonald, 2014 NSSC 218 (CanLII), per Arnold J, at para 15

Discretion to Strike Otherwise Valid Warrant

Even where a warrant passes Araujo standard, it has been suggested that the reviewing court maintains "residual discretion" to declare it invalid on the basis that it is necessary to "protect the integrity of the process".[1] Appropriate circumstances to invalidate a warrant using residual discretion would include cases where the affiant has deliberateyl given false material statesments or omitted material facts.[2]

  1. ↑ R v Montgomery, 2016 BCCA 379 (CanLII), 341 CCC (3d) 147, per Frankel JA, at para 100
  2. ↑ Montgomery, ibid., at para 100

Effect of an Invalid Warrant

Once a warrant is quashed, the reviewing court has the power to order the items seized to be returned.[1] This power is incidental to the power to quash a warrant.[2]

If the items seized are needed for an ongoing or anticipated prosecution, the court can refuse to return the items.[3]

There are no formal requirements necessary for the Crown to establish the need for the items.[4]

Factors to consider include:[5]

  • The conduct of the prosecuting authorities in relation to the search and seizure;
  • the seriousness of the alleged offence,
  • the degree of potential cogency of the things in proving the charge,
  • the nature of the defect in the warrant and
  • the potential prejudice to the owner from being kept out of possession.
  1. ↑ R v Du, 2004 ABQB 937 (CanLII), 378 AR 145, per Macklin J, at para 8
  2. ↑ Du, ibid., at para 8
  3. ↑ Du, ibid., at para 8
  4. ↑ Du, ibid., at para 8
  5. ↑ Du, ibid., at para 8

See Also

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