R. v. Paryniuk, 2017 ONCA 87
[42] A trial judge who has to determine whether a search was authorized by law must decide whether the conditions precedent to the search authority on which reliance is placed have been satisfied. To do this, the trial judge conducts a hearing -- a Garofoli application. At that hearing, the judge examines the material before the authorizing judge or justice, material which may differ from the original because portions have been redacted, for example, to protect confidential informer privilege. Evidence at the Garofoli hearing may persuade the trial judge that parts of the original material should be excised or amplified. In the end, the record becomes fixed for review purposes.
[43] What the trial judge is required to decide on the Garofoli application is whether, based on the record before the authorizing judge or justice, as amplified on the Garofoli review, the authorizing judge could have granted the enabling order: Garofoli, at p. 1452 S.C.R. The judge must decide whether, after excision and amplification, there was reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued: Araujo, at paras. 51, 54; R. v. Campbell, [2011] 2 S.C.R. 549, [2011] S.C.J. No. 32, 2011 SCC 32, at para. 14; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at para. 40. The onus of establishing that the search authority was improvidently granted rests upon the accused: Campbell, at para. 14; Morelli, at para. 131; [page332] Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708, [2002] S.C.J. No. 74, 2002 SCC 72, at para. 68.
[44] Prior to Garofoli, fraud, non-disclosure, misleading evidence and new evidence were prerequisites to review of the enabling order: Garofoli, at p. 1452 S.C.R. But thereafter, the "sole impact" of the same things was to determine whether there remained any basis for the decision of the authorizing judge or justice: Garofoli, at p. 1452 S.C.R. See, also, Araujo, at para. 51; Bisson, at p. 1098 S.C.R.
[45] The assessment required by Garofoli is contextual. What is involved is an analysis to determine whether there remains sufficient reliable information upon which the search authority could be grounded. This approach appropriately balances the need for judicial finality and the need to protect systems of pre-authorization: Araujo, at para. 54. In this analysis, facts originally omitted are also considered: Morelli, at para. 60.
[46] Essential features of the Garofoli application are excision and amplification. Erroneous information is excised from the ITO and disregarded in determining whether the essential evidentiary predicate remains: Araujo, at para. 58; Campbell, at para. 14; Morelli, at para. 41. But errors made in good faith may be corrected by amplification through the introduction of evidence that was available when the ITO was prepared: Morelli, at paras. 41-43.
[47] A final point concerns the standard against which alleged errors or omissions in the ITO are tested. The affiant's assertions are tested against the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, [2016] 1 S.C.R. 207, [2016] S.C.J. No. 15, 2016 SCC 15, at para. 122.
The discretion to set aside otherwise valid search authority
[48] The foundational authority that waded into the procedural quagmire and dredged up a single review mechanism -- Garofoli -- makes no reference to any residual discretion to set aside a search authority otherwise found valid. Not only does Garofoli fail to make a place for such a residual discretion, in express terms or by necessary implication, it also tends to foreclose such discretion by assigning the sole impact of fraud, non-disclosure, misleading evidence and new evidence to a determination of whether there continues to be any basis for the decision of the authorizing judge or justice: Garofoli, at p. 1452 S.C.R.
[49] A decade after Garofoli, the standard of review for issuance of authorizations to intercept private communications returned to the Supreme Court of Canada in Araujo. [page333]
[50] In Araujo, the trial judge found that investigators had acted in bad faith. He also found that the affidavit had failed to establish the investigative necessity requirement of s. 186(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. As a result, he set aside the authorization. The trial judge then went on to exclude all the evidence, directly or indirectly originating from the authorization, on the ground that the police had acted in bad faith and that the courts could not condone such conduct by admitting its evidentiary fruits: Araujo, at para. 10.
[51] The British Columbia Court of Appeal unanimously set aside the acquittals entered at trial: R. v. Araujo, 1998 CanLII 6287 (BC CA), [1998] B.C.J. No. 1558, 127 C.C.C. (3d) 315 (C.A.). The court rejected the trial judge's application of the standard of review to the enabling authorization and of the investigative necessity test.
[52] The Supreme Court of Canada considered first whether the contents of the supportive affidavits, as amplified on the review, satisfied the investigative necessity requirement of s. 186(1)(b). The court then turned its attention to the standard of review to be applied to wiretap authorizations, including amplification. The court reiterated its prior injunction against rehearing and emphasized the contextual nature of the inquiry to determine whether, after excision and amplification, there remained some evidence that might reasonably be believed on the basis of which the authorization could have issued: Araujo, at para. 51.
[53] After referring to some authorities that emphasized the need for a contextual analysis in authorization review, the court continued, at para. 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 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.
(R. v. Morris (1998), 1998 NSCA 229 (CanLII), 134 C.C.C. (3d) 539, at p. 553) [page334]
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 reliable evidence 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.
(Emphasis in original)
[54] The appellant invokes [Araujo, at para. 54] "The cases just referred to do not foreclose a 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 in original) as authority for the order he seeks. The passage in Morris is obiter, since the court was dealing with errors committed in good faith. And the reference to Morris in the Supreme Court of Canada appears to be as illustrative of the need for a contextual analysis in authorization review, not as an express adoption of the residual discretion to set aside an authorization for conduct subversive of the pre-authorization process.
[55] The authority described in Morris appears limited to fraudulent and deliberate errors. It requires a contextual analysis, an examination of all the circumstances. And a conclusion that the police conduct was so subversive of the pre-authorization process that the search authority issued must be set aside to protect the process and the preventative function it serves.
[56] The Morris court summarized this principle in this way, at pp. 568-69 C.C.C.:
Fraudulent or deliberately misleading material in the Information does not automatically invalidate the warrant. However, it may have this effect if the reviewing judge concludes, having regard to the totality of the circumstances, that the police approach to the prior authorization process was so subversive of it that the warrant should be invalidated. In addition, fraudulent and deliberately misleading material should be excised from consideration[.]
[57] This passage suggests that where the police approach to the prior authorization process was so subversive of that process, the warrant should be invalidated and the fraudulent and deliberately misleading material excised from consideration. Excision seems redundant if the warrant has been invalidated because of the subversive nature of the police conduct.
[58] Despite its reference to the decision in Morris, including the passage about a residual discretion, the Araujo court made it [page335] clear that 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: Araujo, at para. 54.
[59] In British Columbia, the courts recognized a similar authority to quash a search warrant where the issuing judicial officer had been intentionally misled. The search authority is quashed to avoid the corruption of the judicial process that would result if deliberate efforts to mislead judicial officers in the discharge of their judicial functions could nonetheless lead to valid judicial orders: see, e.g., Sismey, at p. 285 C.C.C.
[60] In subsequent cases, however, the British Columbia Court of Appeal has acknowledged that Sismey has been overtaken by Garofoli and Araujo: R. v. Bacon, [2010] B.C.J. No. 453, 2010 BCCA 135, 285 B.C.A.C. 108, at para. 23, leave to appeal to S.C.C. refused [2011] 1 S.C.R. v, [2010] S.C.C.A. No. 213.1 In the result, the Bacon court concluded the trial judge's role in reviewing the validity of a search warrant is to consider whether the material filed in support, as amplified on review, could support the issuance of the warrant. Evidence of fraud, material non-disclosure or misleading information are all relevant to this inquiry, but their sole impact is to determine whether there remains a continuing basis to support the warrant: Bacon, at para. 25.
[61] The Bacon court did acknowledge that there may be a residual discretion to strike down a warrant for abuse of process: Bacon, at para. 27.
[62] In this province, courts, including this court, appear to have recognized a discretion to set aside a warrant, despite the presence of reasonable and probable grounds for its issuance, where non-disclosure was for some improper motive or to mislead the issuing judicial officer: R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No, 3620, 157 C.C.C. (3d) 273 (C.A.), at para. 40. Where an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside. But the threshold for setting aside the warrant in these circumstances is high: Lahaie v. Canada (Attorney General) (2010), 101 O.R. (3d) 241, [2010] O.J. No. 3100, 2010 ONCA 516, at para. 40, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 371. In at least one brief endorsement, this court has described the conduct necessary to engage [page336] this discretion as "so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed": R. v. Vivar, [2009] O.J. No. 2126, 2009 ONCA 433, at para. 2. See, also, R. v. Evans, [2014] M.J. No. 129, 2014 MBCA 44, 306 Man. R. (2d) 9, at paras. 17, 19.
[63] Two brief points should be made about the remedy the appellant seeks.
[64] The first has to do with abuse of process. Where state conduct poses no threat to trial fairness, but risks undermining the integrity of the judicial process, the conduct falls within the residual category of the abuse of process doctrine: R. v. Babos, [2014] 1 S.C.R. 309, [2014] S.C.J. No. 16, 2014 SCC 16, at para. 31; R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, at para. 73. The goal of the remedy is not to provide redress for a past wrong done to an accused, but to determine whether some remedy short of a stay of proceedings will adequately disassociate the justice system from the impugned state conduct going forward: Babos, at para. 39.
[65] At trial, the appellant framed the remedy he sought as the exclusion of evidence under s. 24(2) of the Charter for an infringement of s. 8. But when he took up the judge's invitation to challenge the warrant on the basis of a subversion of the pre-authorization process, the application became the functional equivalent of an application to terminate the prosecution for an abuse, namely, a subversion of the process. In those circumstances, the authorities limiting the availability of a stay of proceedings to the clearest of cases may be applicable: R. v. Jageshur, 2002 CanLII 45116 (ON CA), [2002] O.J. No. 4108, 169 C.C.C. (3d) 225 (C.A.), at para. 69.
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