Carelessness in materials for search warrant can amount to serious Charter infringing State conduct

R. v. Dhillon, 2010 ONCA 582 considers carelessness in search warrant materials and finds that where careless errors exist those errors may amount to serious State misconduct.

In R. v. Grant, [2009] 2 S.C.R. 353, the Supreme Court of Canada modified the analytical framework for the exclusion of evidence under s. 24(2) of the Charter saying:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious state misconduct),

(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute.

As one of the factors, the seriousness of the State misconduct is important -- and carelessness can amount to such misconduct. The Court held in Dhillon:

[47]         Although the trial judge accepted Detective Constable Jackson's evidence that he did not intend to mislead the issuing Justice of the Peace, the trial judge concluded that the officer's carelessness had that effect. Absent the officer's misleading statements, the Information to Obtain failed to establish a sufficient link between the appellant and the stolen paint to support the issuance of a search warrant.

[48]         At least in its factum, the Crown argued that the trial judge erred in failing to find that the search warrant could have been issued. I disagree. The fact that surveillance officers saw the appellant's truck in Sukhninder Dhillon's driveway on one occasion, that they observed the white cube van at the appellant's residence briefly on another occasion and that they saw an unknown quantity of five gallon paint containers in the appellant's garage did not establish a sufficient link between the appellant and the stolen paint to support the issuance of a warrant to search the appellant's home. These observations did not support the conclusions Detective Constable Jackson expressed in the search warrant. The redacted Information to Obtain disclosed no other basis for issuing the search warrant.

[49]         In his reasons for declining to exclude the evidence of the seized items, the trial judge appeared to diminish the seriousness of the Charter breach, at least to some extent, by emphasizing that the affiant officer's conduct was not flagrant, deliberate or egregious. However, while perhaps not flagrant, deliberate or egregious, the affiant officer's erroneous statement that surveillance officers observed a large quantity of paint containers in the appellant's garage lacked any reasonable explanation.

[50]         The affiant officer attributed his mistakes to the fact that he was rushing to complete the paperwork for the search warrant. His reference in the Information to Obtain to surveillance officers observing four litre containers of paint in the appellant's garage might reasonably have been the result of rushing, oversight and confusion. However, lack of time is hardly an excuse for inserting an important detail about quantity that had the effect of linking the appellant to the stolen paint when that detail did not form any part of the source material on which the officer was relying.

[51]         In these circumstances, the level of police carelessness can only be characterized as significant. Although not at the extreme end of the spectrum of state misconduct, significant carelessness on the part of the police that leads to the issuance of an invalid search warrant must nonetheless be placed on the serious side of that spectrum.