Judicial Authorization Standard of Review

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General Principles

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

A "Garofoli Application" refers to the procedure for determining the validity of a judicial authorization.

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".

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

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". This is however a high threshold.

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

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.

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.

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"

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

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".

Presumptions and Burdens

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

Degree of Deference

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

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.

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

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".

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".

Quality of Drafting

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

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".

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

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

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

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

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".

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

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

Errors 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".

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.

"Materiality" must be evaluated on the "totality of the circumstances".

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.

Material non-disclosure of fact made strategically by the police (such as for a 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.

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

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

Where there is a 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".

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".

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

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."

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

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

Deliberate Misleading
Deliberately misleading information should be excised from the ITO. Where it taints the ITO as a whole it may invalidate the warrant.

A "deliberately misleading" ITO will invalidate the warrant.

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.

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.

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.

Procedure for Review of Warrant

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. 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.

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 "Vukelich hearing". The determination of whether to permit the accused to challenge the warrant can be made on the basis of submissions of counsel. 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.

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.

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.

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". 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. The reviewing judge must determine whether "authorizing justice could have issued the warrant" if the judge had been aware of the amplification evidence.

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.

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".

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". 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". Generally, this would only include issues of credibility and reliability of the affiant and their sources.

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

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". The judge may further limit the area of cross-examination to specific issues of controversy.

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

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

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

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

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.”

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."

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." It cannot be used to "retroactively authorize a search that was not initially supported by reasonable and probable grounds".

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

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

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

Effect of an Invalid Warrant

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

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

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

Factors to consider include:

• 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.