Les conditions requises pour autoriser l'émission d'un mandat et la norme de révision par le juge réviseur

R. v. MacDonald, 2012 ONCA 244

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[6]               The justice issuing the warrant must have reasonable grounds to believe that an offence has been committed.  The standard is one of reasonable probability.  The material in support of the warrant must raise a reasonable probability of discovering evidence of a crime.  See R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140.

[7]               Where the application for the warrant is based largely on information coming from a confidential informant, the court must make three inquires:

•                    Was the information predicting the crime compelling?

•                    Was the source of the information credible?

•                    Was the information corroborated by the police before conducting the search?

These are not watertight inquiries.  It is the “totality of the circumstances” that must meet the reasonable probability standard.  See Debot, supra. 

[8]               So, for example, where, as in this case, the police rely on information coming from an anonymous source, the second inquiry is problematic.  The court has no way to assess the credibility or reliability of the source.  Thus, the quality of the information (the first inquiry) and the amount of corroboration (the third inquiry) must compensate for the inability to assess the credibility of the source.  A higher level of verification is required.  See R. v. Hosie, 1996 CanLII 450 (ON CA), [1996] O.J. No. 2175 (C.A.) at para. 15.

(2)              Standard of Review

[9]               A judge reviewing the authorization of the issuance of a warrant has a limited mandate.  That mandate was set out by Sopinka J. in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at 1452:

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 review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

[10]         Here, the record before the authorizing judge was neither amplified nor excised on review.  Thus, the question for the reviewing judge was whether the authorizing judge could have issued the warrant. 

[11]         On appeal of the reviewing judge’s decision, the usual principles of appellate deference apply.  This court should not interfere unless the reviewing judge erred in law or made an unreasonable finding of facts.  See R. v. Ebanks, 2009 ONCA 851 (CanLII), [2009] O.J. No. 5168 (C.A.).