Il peut y avoir recours à « l’amplification » — c’est‑à‑dire, à d’autres éléments de preuve présentés lors du voir‑dire pour corriger les erreurs mineures dans la dénonciation — dans la mesure où ces éléments de preuve permettent de corriger des erreurs commises de bonne foi par la police lors de la préparation de la dénonciation

R. v. Griffith, 2025 ONCA 322

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[18]      In my view, respectfully, the reviewing judge erred in his analysis. Resort to amplification of the contents of an ITO is available where there are minor, technical errors made by the affiant in good faith: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 59; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 41; R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at para. 59; R. v. Tran, 2024 ONCA 542, at para. 30.

[19]      The focus on amplification in this appeal is on whether the police had information at the time they applied for the search warrant but failed to communicate it due to a failure in drafting. While amplification is not restricted to correcting mechanical or typographical errors but extends to failures to communicate what was known by the affiant as a result of want of drafting skill, see R. v. Duncan, 2021 ONCA 673, at paras. 14-16 and R. v. Nguyen, 2023 ONCA 291, at para. 32, it is not an opportunity during the search warrant review for the Crown to retroactively add information that it could have included in support of the warrant but failed to do so. To permit this would turn the authorization process into a sham: Booth, at para. 66 citing Morelli, at para. 42 and Araujo, at para. 59.

[20]      In R. v. Jaser, 2014 ONSC 6052, at paras. 78-81, Code J. helpfully reviewed the authorities and cast doubt on whether the Crown in such a situation could rely on an expanded record filed by an applicant in order to strengthen the affiant’s grounds.

[21]      It is also problematic that there was no request by the Crown on the application for consideration of an amplified record. In any case where the Crown anticipates applying for consideration of an amplified record, they should declare it early on so it can be properly replied to, considered, and ruled on.

[22]      In this case, the reviewing judge properly considered the expanded record in assessing whether the issuing judge was misled. His ruling that the ITO was not misleading is reasonable and unassailable on appeal. However, the reviewing judge was in error in relying on the expanded record to bolster the grounds in the ITO. This error is plainly seen in paragraph 46 of the reviewing judge’s reasons where he rebutted defence counsel’s submission that material facts were omitted from the ITO:

However, there is considerable additional credible and reliable evidence uncovered by the police (as set out in the ITO):

a)   Mr. Griffith was seen going to the Rowntree Road apartments on July 7, 2015. He was able to gain access to the apartment building after stopping at the “security gatehouse”. The obvious inference is that he has a connection with this location and was permitted access;

b)   The latter surveillance on July 20, and 21 2015 did not show Mr. Griffith as connected to the 2 Eva Court address. No subsequent surveillance (on any of the suspects) showed a connection between Mr. Griffith or Ms. Ruddock and the Eva Court address;

c)   A MTO search for Ms. Ruddock in early June showed her change of address to 611-3 Rowntree Road (the Searched Premises) as her residence. Given that Mr. Griffith and Ms. Ruddock were living together and continued to be seen together, it would be reasonable to infer that Mr. Griffith was also living at 611-3 Rowntree Road after this change of address;

d)   Mr. Griffith was seen at the 3 Rowntree Road address on July 23, 2015; and

e)   Mr. Griffith and Ms. Ruddock (along with Mr. Martelly) were seen entering the 3 Rowntree Road building on September 17, 2015, immediately after they conducted a drug purchase transaction. [Emphasis added]

[23]      Only part of subparagraph (c) (the MTO search), and (d) and (e) were included in the ITO. The remaining evidence was garnered during the examination of the affiant, after the search warrant had been issued. Without this additional information, on its face, the ITO did not provide an adequate basis upon which the warrant could issue. As a result, there was a breach of s. 8.

[24]      However, the fact that the failure to include the further information was not misleading, and in fact would bolster the grounds, has implications for the analysis under s. 24(2) of the Charter.