R. v. Bond, 2021 ONCA 730
[22] As set out in the Facts section of this judgment, on December 27, 2016, the police applied twice for search warrants relating to two properties and one vehicle.
[23] At 2:32 p.m., the Justice of the Peace refused to authorize the warrants, giving four reasons in support.
[24] At 5:20 p.m., the justice of the Ontario Court of Justice authorized the warrants, without reasons.
[25] At trial, the appellant raised this issue, labelling it “impermissible judge-shopping”. The trial judge dealt with it in a footnote:
The defence argued that taking the second request to [the justice at the Ontario Court of Justice] was impermissible judge-shopping. Police disclosed the prior request to the Justice of the Peace, including the rejection and reasons for the rejection, when they made the request of [the second application judge]. This is not impermissible judge-shopping: it was within [the second application judge’s] discretion to decide the warrant request, and he did so on full and fair information: R. v. Campbell, [2014] OJ No. 6541 (SCJ), per McMahon J.
[26] The appellant submits that the trial judge erred in reaching this conclusion. His position on this issue is succinctly summarized in his factum, at para. 58:
Judge shopping strikes at the core of our judicial system. The concept undermines the high level of confidence that is placed in our judicial system, where the decision of a judicial officer is final and binding unless and until it has been overturned by a higher court. Section 487(2) of the Criminal Code provides that a “justice” may issue a warrant. The Criminal Code defines a “justice” as a Justice of the Peace or a judge of the provincial court. Therefore, [the justice at the Ontario Court of Justice] cannot be considered a higher court than [the] Justice of the Peace … By applying for successive warrants on the same information to a different judge of the same court, the police committed impermissible judge-shopping. [Emphasis added.]
[27] I do not accept this submission, including the emphasized conclusion.
[28] I begin by observing that I do not think that there should be a bright-line rule that the police cannot make a second application for a warrant if the first application is rejected. It needs to be recalled that there is no appeal from the initial refusal: see R. v. Campbell, [2014] O.J. No. 6541 (S.C.), at para. 40.
[29] On this point, I agree with what Thackray J.A. said in R. v. Duchcherer, 2006 BCCA 171, at para. 29:
The procedure of applying successively for search warrants cannot reasonably be said, as such, to be an abuse of process or a “subversion” of the judicial system. Within the process there can, of course, be abuses that would lead to such a finding. It will be a fact driven decision in each case whether the circumstances amount to an abuse of process.
[30] My second contextual observation is that the second judge considering whether to grant the search warrant is not sitting in appeal of the first judge’s decision nor in review of that judge’s decision by way of prerogative writ. As Thackray J.A. said in Duchcherer, at para. 17, “where a judge knows of the previous application to a justice of the peace for a search warrant, but exercises his own discretion, it is a hearing de novo, not a review of the decision of the justice of the peace.”: see also R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 41.
[31] This court in Colbourne, at para. 42 began to address the issue of whether a warrant could be granted on a second application. I agree with Doherty J.A. that “had the second information been the same as the first information, the initial refusal would have played a much more significant role in how the second Justice of the Peace exercised his or her discretion.” While it does play a role and should be considered by the second application judge, the fact a warrant request has been rejected is not determinative to the second request. This is supported by Doherty J.A.’s further reasoning in Colbourne, at para. 42, that he “need not decide whether I would go so far as to say that two applications based on the same information are improper even if full disclosure of the initial refusal is made.”
[32] Turning to the merits of the appellant’s submission on this issue, in my view, the disclosure to the second application judge of the previous refusal and the reasons for that refusal ensured the openness and transparency of the process that the appellant submits was lacking. Those factors were endorsed by McMahon J. in Campbell, at para. 56:
In submitting the materials the officer should ensure the ITO includes the particulars of the earlier refusal, including the time, name of the judicial officer, and the reasons of refusal.
A copy of any reason or endorsement provided by the judicial officer who refused the warrant should be an appendix to the ITO.
[33] As the trial judge noted in the footnote dealing with the judge-shopping issue, the police complied with these factors. The second application judge, who issued the search warrant, was fully apprised of the previous application, its timing, the fact that it had been rejected, and the reasons for the rejection. He was well-positioned to consider the application de novo.
[34] McMahon J. in Campbell also identified another factor to consider, namely that no specific officer should be selecting individually any reviewing judge; instead, the second judicial officer should be the one on call. I note that the appellant does not allege that this factor is in play in this case.
[35] In conclusion, like McMahon J. in Campbell, at para. 58, “I do not accept the argument that allowing successive search warrant applications on the same materials would amount to judge-shopping and would be a reason not to allow for such procedure”. Each case will need to be addressed on its own facts. In this case, the trial judge did not err by affirming the validity of the second search warrant.
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