Reviewing a search warrant

Lahaie v. Canada (Attorney General), 2010 ONCA 516 is a useful decision as to the customary, and exceptional, test for reviewing a search warrant:

[39]          The trial judge did not apply the customary test for reviewing a search warrant, namely, whether on the record as excised and amplified, the authorizing judge could have issued the warrant: see R. v. Araujo, [2000] 2 S.C.R. 992 at paras. 51-59. Rather, he adopts the language of Romilly J. in R. v. Maton (2005), 133 C.R.R. (2d) 72 (B.C.S.C.), at para. 22, concluding that the "lack of candour" by the police officer affiant of the information to obtain "was so subversive of the prior authorization process that the resulting warrant must be set aside to protect the process and the preventive function it serves."

[40]          Although it is open to a reviewing judge to consider quashing a search warrant where the affiant is shown to have deliberately given false material statements or deliberately omitted material facts from an information to obtain with the intention of misleading a justice of the peace, the threshold for setting aside a search warrant in such circumstances is high: see R v. Morris (1998), 134 C.C.C. (3d) 539 (N.S.C.A.), at paras. 42-43, quoted with approval in Araujo, at para. 54:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.

[41]          While the trial judge may have had some justifiable concerns about some aspects of the police officer affiant's credibility at trial (for example, in relation to his testimony concerning whether he read the relevant case law before applying for the search), once the trial judge's core findings concerning absence of good faith and malice are set aside, this is simply not a case that meets the test for setting aside a search warrant based on deliberate misconduct by the police.