Sufficiency of a search warrant

The sufficiency of a search warrant is often an issue. Today the Court of Appeal gave some guidance as follows in R. v. Nguyen, 2011 ONCA 465:

[23] The ultimate test is whether – after excising any offending portions of the ITO – there remains a sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant: see R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Araujo, [2000] 2 S.C.R. 992; R. v. Morelli, supra. Other factors may be taken into account when arriving at that assessment. For example, misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO – depending on the nature and severity of these faults – may provide a basis for challenging the decision to grant the warrant: Araujo, at para. 51. Care must also be taken to confirm the reliability of information obtained from tipsters where that information forms a material basis for the application.

[24] Here, the trial judge based her conclusion that the warrant should not have issued on three factors: misleading statements contained in the ITO; inadequate examination of the reliability of the anonymous sources; and the failure to disclose certain facts that D.C. Mason did not observe. Having canvassed those issues, however, she did not ask herself whether, on the record before the issuing justice, as amplified on the review and minus any offending portions that needed to be excised, there remained a sufficient basis upon which the issuing justice could have issued the warrant. I agree with the Crown's submission that this question appears to have been lost in the trial judge's focus on the perceived misstatements and omissions. Moreover, in concluding that the impugned statements were misleading, the trial judge misapprehended and misconceived the evidence; the statements were not misleading in any material way. Finally, the purported omissions were not material in my view, or, for the most part, properly characterized as omissions in the circumstances.

[25] In addition, even if the statements and omissions could be said to be materially misleading, that was not the end of the matter. The trial judge still had to ask herself the foregoing question i.e., whether there remained a sufficient basis on which to issue the warrant. As Charron J. said in R. v. Pires, [2005] 3 S.C.R. 343, at para. 30:

Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. [Emphasis added.]