R. v. Dionisi, 2012 ABCA 20
[20] We conclude that the trial judge erred in her approach as to whether there was a section 8 Charter breach in the first place. In a voir dire as to a section 8 Charter breach, the onus is not upon the claimant to merely show that there were defects in the ITO, the claimant must establish the breach of section 8 on a balance of probabilities. This can be done only by showing that it is likely that the search warrant would not have issued based upon the content of the ITO. It is not enough to persuade the trial judge that she would not have been inclined to issue the warrant on the grounds thus provided. The trial judge must be satisfied that the warrant is invalid, not that the trial judge would not have authorized it. The trial judge does not re-try the warrant: R v Schindler, 2001 ABCA 22, 277 AR 98 at para 18, citing R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992.
[21] Even if it is established that there are flaws in the ITO, such as that information is inaccurate, or a material fact is not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions: see R v Pires, 2005 SCC 66 at para 30, [2005] 3 SCR 343. As the trial judge noted, the fact that the confirmatory information in the ITO related to details other than the actual observations of drugs in the house or the fact of appellant’s trafficking, that confirmation still has value on the totality of the circumstances: R v Caissey, 2007 ABCA 380 at para 23, 227 CCC (3d) 322, aff’d 2008 SCC 65, [2008] 3 SCR 451; R v Hillgardener, 2010 ABCA 80, 252 CCC (3d) 486. Here the ITO said that the informant had provided reliable information in the past and that he had been compensated for it, and also that he had a relationship with the handler. The fact that the informant had given specific details about non-offence particulars was still consistent with the informant providing information on which reliance could be placed. There would in such a context be support for the idea that the informant had no grudge against the appellant but a motive to work with the police.
[22] The trial judge appears to have felt that the information from the informant might have been dated. There is no rule as to how recent information has to be in order to be relevant. In any event, the ITO alleged the information in the present tense. These averments provided no room for the conjecture that the information provided was not recent enough to be relevant. The trial judge also speculated as to whether the information provided by the ITO was information that the informant learned rather than seeing personally. An ITO is to be read in a practical, non-technical, common-sense basis: see R v Whitaker, 2008 BCCA 174 at paras 41-42, 254 BCAC 234, leave refused [2008] 3 SCR x. There was no foothold for the assumption that the information was second-hand. Even if it were second-hand, the police experience with the informant was such that his information had been found to be reliable in the past.
[23] More generally, it would not be correct for a trial judge to assume that any observations made by that trial judge as to possible questions about the content of the ITO from looking at the text would be such as would have escaped the notice of the authorizing judge. For example, at one point she questioned whether the grammar in the ITO was identifying more than one informant. This court does not share her concern in that respect, but in any event the law does not assume that the trial judge is smarter than the authorizing judge in that sense. Rather, the search warrant is presumed to be valid: R v Pitre, 2011 NBCA 106 at para 34 citing Quebec (Attorney General) v Laroche, 2002 SCC 72 at para 68, [2002] 3 SCR 708.
[24] The case law has said repeatedly that the function of the trial judge is not to substitute her opinion for that of the authorizing judge: R v Campbell, 2011 SCC 32 at para 14, [2011] 2 SCR 549 (“The question for a reviewing court is ‘not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence’ to permit an issuing justice to authorize the warrant (Morelli, at para. 40).”). Also see R v Lee, 2011 ABCA 310 at para 14 (“ The function of the reviewing judge is not to conduct a rehearing; rather, that judge should not interfere if the authorizing judge could have granted the authorization: R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at 1452, 60 CCC (3d) 161; R v Araujo, 2000 SCC 65, [2000] 2 SCR 992 at 1016‑1017.”).
[25] A search warrant should issue only on a credibly-based probability, having regard to the whole of the circumstances, but as pointed out in Lee:
15 The proof sufficient to meet the standard of credibly based probability is whether the totality of the relevant circumstances support the inference. Here the appellant invites us to examine individual circumstances in isolation, and suggests other inferences are possible. We are satisfied that a collective assessment of the circumstances supports the finding of the reviewing judge that there was sufficient evidence that the authorizing judge could properly have granted the search warrant in this case.
[26] The Court in Pitre explained that it is not for the trial judge to decide if the warrant would have necessarily issued on the ITO, but whether it could have been authorized by a judge acting judicially: see likewise R v Ebanks, 2009 ONCA 851, 249 CCC (3d) 29 at paras 21, 33. (Ebanks was applied by ONCA majority in its decision later affirmed in Campbell.) It is apparent from the reasons of the trial judge, notably at paras 35 to 37, that she adopted a totality test, contended for by counsel for the appellant, that the ITO had to provide “compelling” information. Her concerns about the conclusory nature of what the ITO contained overlooked the specific detail of the manner and price at which the appellant allegedly was selling cocaine. The suggestion that this may be “mere rumour or gossip” is not grounded in anything but the argument of counsel. She dismissed the averments about the 2004 incident as unhelpful. She concluded her analysis with the observation that “I find that the edited ITO contains insufficient grounds ...” by reference to the “compelling” test. That was not the question. The question was whether no judge, acting judicially, could have chosen to grant the authorization on the information remaining after redaction.
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