R. v. Debartolo, 2018 ONSC 916
General Principles Governing Review of a Search Warrant
[32] The general principles governing the review of a search warrant are not contentious and may be summarized as follows:
1. A search warrant is presumed to be valid and the onus is on the Applicant to show that there was not sufficient credible and reliable evidence to permit a justice of the peace to issue the warrant.[5]
2. The standard of persuasion for the issuance of a warrant is reasonable grounds to believe. This standard is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. It requires more than an experienced-based “hunch” or reasonable suspicion.[6]
3. The ‘reasonable and probable grounds’ or ‘credibly-based probability’ concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the ‘sufficiency inquiry’), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the ‘credibility inquiry’).[7]
4. The affiant must subjectively believe that there are reasonable grounds to believe that an offence is occurring and that evidence will be found at the place to be searched. The affiant’s belief must be supported by enough information to enable a reasonable person to come to the same conclusion.[8]
5. When the police rely upon information from a confidential informant to meet this standard, consideration must be given as to whether the information from the informant is compelling or corroborated by other aspects of the police investigation and whether the informant is credible. These are not discrete, isolated inquiries, however, and weaknesses in one area may be offset by strengths in another.[9]
6. In a review of the validity of a warrant, the reviewing court must show deference to the issuing justice. The test to be applied is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued.”[10] In applying this test, the reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO.[11]
7. A search warrant is obtained ex parte and the Applicant for the warrant must provide full and frank disclosure of relevant facts.[12] On review, the reviewing court must exclude erroneous information and may have reference to ‘amplification’ evidence.[13]
Deliberate Misrepresentation
[33] In the case before me, the central issue is whether the affiant deliberately or intentionally misled the issuing justice and if so, what impact that had on the reliability and sufficiency of the balance of the ITO after excision and amplification.
[34] As set out in R. v. Garofoli, supra, at para. 56, in the review process, the “existence of fraud, nondisclosure, 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.”
[35] The approach to deliberate misrepresentation was addressed by Code J. in R. v. McLetchie[14] where he reviewed and explained the Supreme Court of Canada judgments in R. v. Bisson[15] and R. v. Araujo.[16] At paragraphs 31 and 32 Code J. wrote as follows:
31 The Court in Araujo, supra, appears to be saying that a deliberate falsehood may be ‘so subversive’ of confidence in the search warrant ‘process’ that the reviewing judge may not be satisfied as to ‘whether there was reliable evidence’ in the balance of the Information. LeBel J. has certainly resurrected ‘the need to protect prior authorization systems’ as a relevant policy value to be considered in the search warrant review process. This was the very concern that Laskin J.A. and Lambert J.A. first raised when dealing with sub-facial defects in Den Hoy Gin [(1965), 45 C.R. 89 (Ont. C.A.)] and in Sismey [(1990), 1990 CanLII 1483 (BC CA), 55 C.C.C. (3d) 281 (B.C.C.A.)]. It is a policy value that is also seen in abuse of process cases where the misconduct of a party ‘disentitles that party from the judicial assistance that it is seeking’ and where the courts must craft a remedy ‘to preserve the integrity of their own proceedings’. See: United States v. Cobb (2001), 2001 SCC 19 (CanLII), 152 C.C.C. (3d) 270 (S.C.C.), at 285-291.
32 Accordingly, the current state of the law is that a sub-facial defect in a search warrant Information must be analysed on a s.8 motion in order to determine whether it was deliberate or inadvertent. If it was deliberate, then its impact on the reliability and sufficiency of the untainted balance of the Information must be assessed, including its impact on the reliability of the warrant process. If it was simply an innocent mistake, then the remedies of redacting or ‘amplification’ can be immediately applied and the balance of the Information assessed to determine whether the warrant, nevertheless, could have issued.
[36] The Court of Appeal, in R. v. Paryniuk,[17] more recently considered the residual discretion of a reviewing court to set aside a warrant despite the presence of reasonable and probable grounds for its issuance where an affiant has been shown to have deliberately provided false statements or to have deliberately omitted material facts from an ITO. In Paryniuk, the Court of Appeal reaffirmed the principle in R. v. Lahaie, that the threshold for setting aside a warrant in such circumstances is high. In Paryniuk, the Court held that the applicant was required to demonstrate that the state conduct was such that the integrity of the process was undermined, thus evoking the “language of the residual category of abuse of process.” While the Court in Paryniuk does not hold that the residual discretion to quash an otherwise valid warrant may only be exercised in circumstances that amount to an abuse of process, the standard or threshold applied is clearly comparable to that of abuse of process.
[37] In Paryniuk, before explaining the residual discretion to set aside a warrant, Watt J.A. discussed the reliability component necessary to ground a valid warrant, writing at paragraph 67:
67 Counsel for the respondent is on firm ground when he says Garofoli recognizes no such discretion. But Garofoli is not the last word on the subject. In Araujo, the court followed Garofoli but emphasized a reliability component in the information provided to the issuing judge or justice. When the dust settles after excision and amplification, the Araujo court said, there must be a residuum of reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued.
[38] Paryniuk does not change the requirement that there must be sufficient reliable evidence after excision and amplification to provide grounds for the issuance of the warrant. Where there are deliberate misrepresentations and omissions in the ITO these defects may impact on the assessment of the reliability of the balance of the ITO even if deliberate misrepresentation and material omission has not been proven with respect to the details contained in the balance of the ITO after excision.
[39] The assessment of the impact of intentional misrepresentations by the affiant on the overall reliability of the ITO is of particular significance where the Crown invokes the Garofoli ‘Step 6’ procedure. In such cases significant portions of the ITO will be redacted and unavailable to be specifically challenged. Where there is a finding made that the affiant deliberately misled the issuing justice with respect to those parts of the ITO that were not redacted or those parts where the judicial summary permitted a specific challenge, the reviewing justice should consider whether the intentionally misleading conduct of the affiant impacts the reliability of the balance of the ITO.
[40] Therefore, the appropriate approach to be taken in a Step 6 case that involves an allegation that the affiant has deliberately misled the issuing justice is for excision and amplification to be followed by an assessment of whether the conduct of the affiant taints the reliability of the balance of the ITO.
[41] If the balance of the ITO is not found to be tainted by the deliberately misleading conduct of the affiant and the balance supports the issuance of the warrant, the warrant should be found to be valid subject only to a Paryniuk analysis. If the misleading conduct of the affiant renders the balance of the ITO unreliable, the ITO should be found to be invalid and the court need not consider the residual discretion in Paryniuk.
[42] In determining whether the balance of the ITO is tainted by the deliberate misrepresentations, relevant considerations will be the respective sources of information, the degree of corroboration and the nature and extent of the misleading portions of the ITO.
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