Les principes directeurs qui guident le juge chargé de l'examen dans son analyse de l'affidavit à l'appui d'une autorisation judiciaire

R. v Bullen, 2016 ONSC 7684

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[18]        The analysis is limited to the four corners of the ITO. It is a facial review. The analysis may then move to a consideration of additional documentation or evidence aimed at disclosing errors omissions, and other issues with the ITO. If after review and editing, the ITO falls short, then the warrant or authorization would be set aside, any search conducted pursuant to the authority of the authorization would be rendered a warrantless search and a presumptive violation of s. 8 of the Canadian Charter of Right and Freedoms. The reviewing judge must only assess the record that was before the issuing judge, as amplified on review, and determine whether the authorization could have issued, not would have issued. The reviewing judge is required to edit and or amplify the ITO and then determine if there was some 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 authorization should have issued.[6] It is not an onerous test, and there is only a narrow basis on which the authorization can be set aside.[7]

[19]        The guiding principles for the reviewing judge in conducting an analysis of the ITO include the following:

a.   During facial enquiry the contents of the ITO are presumed to be both accurate and reliable; [8]

b.   During the sub-facial enquiry, the reliability of the ITO is assessed in the context of other source documents or evidence that undermines the veracity of the ITO, and edited to ensure that only accurate information remains.[9]

c.   The affiant in the ITO is obliged to make full, fair, and frank disclosure. This requires that all material facts, whether favourable or not, be disclosed. Material non-disclosure is not countenanced, particularly where the omission invites an inference that would not be available but for the material non-disclosure.[10] This includes the requirement that the affiant disclose all relevant facts including those which tend to disprove the existence of reasonable and probable grounds when applying for a wiretap authorization.[11]

d.   During a sub-facial enquiry, information may be deleted where it is shown to be false given the omission of evidence that ought to have been included but was not because of the failure of the police to investigate the case with due diligence. [12]

e.   The affiant must show that they have avoided a “degree of carelessness completely inconsistent with the standard of care expected from any police officer competent to apply for a search warrant”. The objective standard of care must be enforced. This requires that it be written in an organized and understandable fashion without padding with extraneous information.[13]

f.     Unsourced narrative or conclusory statements are of no assistance and must be given little or no weight.[14]

g.   While the criminal history of the suspect may be relevant, it must be connected to the offence under investigation. Where the criminal history is entirely unrelated it should not be included. Including an unrelated criminal history to show a propensity to criminality is improper.[15] Similarly a dated criminal history, even for a related offence, is of limited value.[16]

h.   Reliance on information from confidential informants or outside sources carries with it the obligation to equip the authorizing justice to evaluate the nature and quality of the tip. The entire criminal record should be made available to the authorizing judge, as should the disclosure of any outstanding charges.[17] A conclusory statement that the source is credible is insufficient. [18] An important indicia of the source’s reliability is whether previously disclosed information has led to convictions (as opposed to charges being laid).[19]  Where the source of the informant’s information in the ITO is not disclosed, the information must be treated as rumour or gossip, and given little to no weight in its evaluation.[20] The risk of false allegations is particularly significant when the tipster is shielded by an absolute and impenetrable anonymity. This requires scrutiny to ensure that widely available detail is not assumed to mean the tipster’s evidence is compelling. [21]

i.      Corroboration of the tip by independent investigation becomes more relevant where it is difficult to assess the credibility of the source. The most persuasive evidence is that that is predictive of criminal activity. It need only be some indication that the criminal activity alleged was occurring. [22]

j.      Conclusory statements about an offence having occurred without substantiating detail is not a compelling tip.[23] The currency of the information, in the sense of when the observation was made by the informant, is crucial in order to determine whether it is current and ongoing.[24] When assessing the reliability of an informant or tipster the applicable principles are to be viewed within the totality of the evidence.[25]

k.   After excluding erroneous information, the affidavit should be assessed as a whole to see whether there remains a basis for the authorization in the totality of the circumstances.[26]