Tuesday, August 28, 2012
Challenging a search warrant
Hewlett v. R., 2012 NLTD(G) 117 gives a useful summary of the law relating to search warrant challenges under the Charter:  The burden of proof rests with the Applicant who must satisfy the Court on a balance of probabilities that there has been a breach of section 8 of the Charter. A presumption of validity exists with respect to the search warrant and the sworn information supporting the warrant. (see R. v. Collins,1989 CanLII 264 (ON CA),  48 C.C.C. (3d) 343 (Ont. C.A.))  The standard of review with respect to a challenge of a search warrant is set out by Sopinka, J. in R. v. Garofoli 1990 CanLII 52 (SCC), (1990), 60 C.C.C. (3d) 161 (S.C.C.) at para(s) 67 and 68: 67 While a judge exercising this relatively new power need not comply with the Wilson criteria, he should not review the authorization de novo. The correct approach is set out in the reasons of Martin J.A. in this appeal. He states, at p. 119: If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter. 68 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 judgecould have granted the authorization, then he or she should not interfere. In this process, the existence of 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.  In R. v. Araujo, 2000 SCC 65 (CanLII),  2 S.C.R. 992 at para. 51, Lebel, J. commented: 51 In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.  Lebel, J. continued in para. 54: 54 The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace. 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 [page1019] 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. [Emphasis added.] (R. v. Morris 1998 CanLII 1344 (NS CA), (1998), 134 C.C.C. (3d) 539, at p. 553) An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliableevidence 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.  In R. v. Saunders, 2003 NLCA 63 (CanLII), 2003 NLCA 63, Rowe, J.A. commented on the issue of sufficiency of the information to obtain the search warrant at para. 7: 7 The trial judge identified leading authorities relating to sufficiency of information to obtain a search warrant, especially the use of confidential sources. Notably, the trial judge relied on the decision of Martin, J.A. in R. v. Debot1986 CanLII 113 (ON CA), (1986) 54 C.R. (3d) 120 (Ont. C.A.), affirmed by the Supreme Court of Canada at 1989 CanLII 13 (SCC),  2 S.C.R. 1140(S.C.C.) on the Supreme Court of Canada's decisions in R. v. Greffe1990 CanLII 143 (SCC),  1 S.C.R. 755 (S.C.C.) and on Garofoli, supra. The trial judge quoted the following passage summarizing the relevant principles set out in the decision of Sopinka J. in Garofoli, at 1456 and 1457: (i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to 'the totality of the circumstances'. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: (a) the degree of detail of the 'tip'; (b) the informer's source of knowledge; (c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of the reliability of the information.  Rowe, J.A. addressed at para.(s) 14 – 16 the requirement of considering the totality of the circumstances: 14 To us, the sequence of pictures is clear. Each of the three sources, "A", "B" & "C", told police that Mr. Saunders was receiving hash oil and keeping it at his house. Source "C" told police he bought some there. Information from sources "B" &"C" placed the drugs at Mr. Saunders residence on April 1, 2001. 15 As the Supreme Court stated in Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc, 1984 CanLII 33 (SCC),  2 S.C.R. 145 at 167: The state's interest in detecting and preventing crimes begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. The question properly before the trial judge was: Could a justice of the peace, based on the information to obtain, have found that "credibly-based probability [had] replace[d] suspicion"? 16 If one "deconstructs" each item of information from source "A" and then that from source "B" and then that from source "C" and applies the test as against each item individually, as did the Trial Judge, then the answer may well be "no", as the trial judge concluded. But, if one considers the "totality of the circumstances" one sees that the information from the three sources is corroborative inter se; because of this, the whole of their information becomes greater than the sum of its parts. To put it another way, the sequence of pictures drawn by the three sources tells a consistent story: Mr. Saunders sold hash oil, he kept it at his residence, he had hash oil at his residence on April 1, 2001. As such the whole could enable the justice of the peace to conclude that credibly-based probability had replaced suspicion.