Le simple passage du temps ne rend pas automatiquement une information périmée, car sa pertinence doit être évaluée de manière contextuelle en tenant compte notamment de la nature continue des activités criminelles visées

R. v. James, 2019 ONCA 288

Lien vers la décision

[55] There is no rule as to how recent information has to be in order to be relevant: R. v. Dionisi, [2012] A.J. No. 65, 2012 ABCA 20, 285 C.C.C. (3d) 502, at para. 22. In my view, the trial judge fundamentally misunderstood the nature of the offences being investigated and the respondent's possible involvement in them. The information from the investigation showed that Primo was not some low level drug dealer operating in small quantities that might be sold on a street corner or in a back alley. Rather, the information showed that Primo was dealing in much larger quantities of cocaine, up to the kilogram level. The activities of large-scale drug dealers are not transitory.

[57] Not only do these events support this conclusion, so too does the criminal record of the respondent. Prior criminal activity -- including prior involvement in the drug trade -- is a relevant factor in determining whether there are reasonable and probable grounds for a search: R. v. Pasian, [2017] O.J. No. 2858, 2017 ONCA 451, 349 C.C.C. (3d) 144, at para. 6.

[60] Against that background, and the contemporaneous evidence regarding the drug activity involving the respondent and MD, the affiant's failure to mention that the April 2012 charges were stayed is an entirely minor error that does not, in any way, detract from the overall picture presented to the authorizing justice. It certainly would not have unduly influenced the justice of the peace in terms of whether or not to issue the search warrant. And, on review, whether you excise the April 2012 charges, or amplify the record by including the stay of those charges, neither would result in a conclusion that the justice of the peace could not have issued the search warrant.

[61] Returning to the issue of the currency of the information, the only authority to which the trial judge made reference on the issue of stale-dated information was R. v. Silveira (1995), 1995 CanLII 89 (SCC), 23 O.R. (3d) 256, [1995] 2 S.C.R. 297, [1995] S.C.J. No. 38. It is not clear how that authority would assist on the issue here since that case [page338] dealt with a search in exigent circumstances. I do note, however, that Cory J., speaking for the majority, discussed the problem that the police had in terms of whether they could obtain a search warrant in the exigent circumstances that they were confronted with. He suggested that one solution to the problem would have been for the police to have obtained the search warrant based on information that they had from a week or so earlier. In making that suggestion, Cory J. made the following observation, at para. 154, which is particularly apt to the situation here:

In this case, evidence existed upon which a search warrant might have been obtained before the arrests were made. It may be that it would have been preferable for the police to have obtained a search warrant based on the earlier transactions prior to that made on the day of the arrests . . . At the time of trial, if the search warrant was attacked on the grounds that it was outdated, evidence could be adduced of the difficulty of providing up-to-date material in circumstances like these and that, in light of the necessity of protecting the evidence, the police found it necessary to obtain a warrant based on the earlier transactions and observations. In the absence of an unreasonable delay between the observations and the application, it would be difficult to imagine that the warrant could be successfully attacked on the grounds that it was stale-dated. That is the way the police should have proceeded.

[62] A more pertinent authority on this subject is this court's decision in R. v. Breton, 1994 CanLII 939 (ON CA), [1994] O.J. No. 2097, 74 O.A.C. 99, 93 C.C.C. (3d) 171 (C.A.). In that case, there had been drug transactions in an apartment on September 16 and October 8. A search warrant was executed on October 15. One of the challenges to the warrant was that there was no information to believe that drugs would be found in the apartment on October 15. While that argument found favour with the trial judge, it did not find favour with this court. This court concluded that it was open to the issuing justice to infer from the earlier transactions that there was a probability that drugs would be found in the apartment on the later date. In so concluding, this court made reference to an earlier decision where a search warrant was issued on July 12 based on a drug transaction from May 3.¹ This court noted that, in that earlier case, "[n]otwithstanding the time lapse this court held that the information was sufficient": Breton, at para. 48.

[63] Another example is found in R. v. Lucas (2014), 121 O.R. (3d) 303, [2014] O.J. No. 3471, 2014 ONCA 561, leave to appeal to S.C.C. dismissed [2014] S.C.C.A. No. 460, 2015 CanLII 1812. In that case, there was a challenge to the ITO relied upon to obtain an authorization to intercept private communications. The target, Lucas, was believed to be trafficking in firearms. Lucas [page339] challenged the information in the ITO on the basis that it was stale because it referred to activities that had taken place some three years earlier. This court rejected that challenge. This court said, at para. 140:

[W]e agree with the trial judge that in this case, the fact that guns had allegedly been supplied to Lucas some years before the investigation into the offences referred to in the ITO did not undermine the grounds for issuing the authorization to intercept his communications. The ITO provided reasonable grounds to believe that Lucas had not disposed of all the guns delivered to him by Cooke, that he had supplied guns to the Doomstown Crips in the past, and the surveillance evidence from January 2006 indicated that Lucas may have been transporting firearms. The ITO thus provided reasonable grounds to believe that Lucas had been and continued to be involved in the organized trafficking of a substantial number of weapons.

(Emphasis added)

[64] The approach to the question of whether information is so dated such that it cannot be relied upon for the purpose of seeking a judicial authorization must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account. As the British Columbia Court of Appeal observed in R. v. Ballendine, [2011] B.C.J. No. 838, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:

Merely because information is "dated" does not mean it is "stale". While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor.

[65] As the court in Ballendine also observed, on these issues, a court is entitled to draw common sense inferences regarding the activities of persons: at paras. 53, 55, 57. That common sense point was echoed by this court in R. v. Beauchamp, [2015] O.J. No. 1939, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 113:

[I]t would have been open to the authorizing judge to infer current criminality from past criminality in the circumstances disclosed by the evidence in the affidavit. In considering the capacity of the evidentiary predicate to ground a finding of probable cause, it is important to keep in mind the investigative objective and the nature of the alleged criminality involved. Ongoing criminal enterprises do not come into existence, nor do they disappear overnight. Information that seems dated at first blush can retain its relevance.

(Emphasis added)

[66] The suggestion, implicit in the respondent's position, that three weeks after the respondent was observed driving from London to Windsor in order to deliver a significant quantity of cocaine to MD, he became disassociated from, and unconnected with, drug trafficking finds no common sense foundation.

[67] In support of his position, the respondent relies on the decision in R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, [page340] 2010 SCC 8, where a warrant to search for evidence of possession of child pornography based on four-month-old information was held to have been improperly issued. In my view, the decision in Morelli does not assist the respondent. The decision in that case is very much fact driven. A particularly salient fact is that the links on the accused's computer to two possible child-pornography websites, that a technician had noticed, were gone when the technician returned to view the computer the next day. As Fish J. said, at para. 95:

At best, this may be a ground for suspicion, but surely the deleted links afford no reasonable and probable grounds to believe that the appellant was in possession of child pornography, and still less that evidence of that crime would be found upon a search of his computer.

[68] The decision in Morelli does not preclude reliance on a pattern of behaviour as part of the evidentiary foundation for the issuance of a search warrant. It merely requires that there be sufficient facts to provide that foundation. In Morelli, the court found that there were not sufficient facts. Here, as I have already explained, there is a pattern of conduct by the respondent based on the information that the police had gained from their investigation and the criminal record of the respondent. Put simply, there was offence specific information establishing a pattern of drug dealing involving the respondent.

[69] My colleague draws support for the trial judge's conclusion from R. v. Rocha (2012), 112 O.R. (3d) 742, [2012] O.J. No. 4991, 2012 ONCA 707. However, that case also does not assist. Rocha involved the sufficiency of an ITO based on an informer's tip, and whether that tip was sufficiently credible and corroborated to tie drugs to a particular residence. The decision does not turn on whether the information was "dated", nor does it turn on any pattern of conduct.

[70] The trial judge also rejected the Crown's explanation for the delay in obtaining the warrant based on the fact that, had the police moved on the respondent's involvement earlier, it would have curtailed the broader ongoing police investigation. In response to this point, the trial judge said:

If they were after the bigger fish with respect to the firearms they should have left [the respondent] alone until they could achieve their purpose and go after him on the evidence that they had at the time.

[71] It is unclear to me what the trial judge meant by "on the evidence that they had at the time". The evidence that the police had was the evidence they put in the ITO. If the trial judge meant that, if the police had nothing further regarding the respondent when they moved on the broader investigation, they ought to have [page341] left the respondent alone, then that view reflects a fundamental misunderstanding of large-scale police investigations, and an extremely problematic one at that.

[72] As numerous large-scale police investigations have demonstrated, such investigations take time. During the course of those investigations, different individuals committing different offences may be identified at different times. It is common practice to address all such individuals, and all such offences, at the time that the broader investigation is completed -- the so-called "take-down day". This is done as a practical matter to avoid undermining the broader investigation. This necessary approach does not, of course, remove the need for the police to have the requisite grounds for the authorization at the time that they obtain it.

[73] If the thrust of the trial judge's decision here is, as I fear, that the police must either move immediately, when each of those offenders and offences is identified, or otherwise walk away from the prosecution of such persons, the result will seriously undermine the effectiveness, indeed the viability, of these types of investigations. The police will be left with the insolvable dilemma of either moving on the more peripheral but still serious offences immediately, and thus risk disrupting the larger investigation that often reflects more widespread and ongoing offences, or complete their investigation and walk away from the earlier offences revealed. Neither of those results is palatable in terms of public safety or proper law enforcement. With respect, no evidence is required to take into account such common sense real-world considerations.

[74] Further, any suggestion that the police should act on such offences and just hope that doing so will not jeopardize the larger investigation, imposes on the police a requirement to assume an unacceptable risk. It also potentially involves placing any police agents and undercover officers who might be involved in the investigation, as was the case here, at risk for their safety. No proper interpretation of s. 8 Charter rights compels such intolerable choices.

*** Note de l'auteur de ce blog: cette dissidence de la Cour d'appel de l'Ontario est avalisée par la Cour suprême - voir R. c. James, 2019 CSC 52 ***

La pertinence d'une information à la base de motifs raisonnables d'un policier n'est soumise à aucune règle stricte de récence

R. v. Dionisi, 2012 ABCA 20

Lien vers la décision

[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.

L'exécution d'un mandat de perquisition est de nature intrinsèquement coercitive, ce qui peut facilement mener à une détention psychologique des occupants si les policiers ne clarifient pas la situation

R. v. O'Brien, 2023 ONCA 197

Lien vers la décision

[37]      I accept the trial judge’s conclusion that the s. 9 breach was of minimal seriousness. There is no basis on the evidence for inferring that the police intentionally set out to detain Mr. O’Brien or acted negligently in doing so. I would say, however, that given the inherently coercive nature of warrant execution, and the reaffirmation in R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, that psychological detention can occur during the execution of search warrants, police officers who assume control over occupants in order to secure the scene of a search should pay closer attention to whether there are objectively reasonable indications that those persons may consider themselves to be detained than the police officers did in this case. It is a simple matter to explain to occupants why they are being directed, and to notify them when and where they are free to go.

Un mandat autorisant une perquisition dans un lieu précis pour chercher des choses précises confère aux personnes qui exécutent ce mandat le pouvoir de procéder à un examen raisonnable de tout élément se trouvant à cet endroit et dans lequel les choses précisées pourraient être découvertes

R. c. Vu, 2013 CSC 60

Lien vers la décision

[23]                          Je souscris à la proposition générale qu’a formulée dans les termes suivants la Cour d’appel : [traduction] « Un mandat autorisant une perquisition dans un lieu précis pour chercher des choses précises confère aux personnes qui exécutent ce mandat le pouvoir de procéder à un examen raisonnable de tout élément se trouvant à cet endroit et dans lequel les choses précisées pourraient être découvertes » (par. 63).  Autrement dit, une autorisation expresse préalable de fouiller tout ce qui se trouve dans le lieu en question n’est pas requise.  Toutefois, la question qui se pose consiste à décider si cette proposition générale s’applique aux ordinateurs ou si la fouille d’un ordinateur requiert l’obtention d’une autorisation expresse préalable.

En raison de la nature intrinsèquement coercitive de l'exécution d'un mandat de perquisition, une détention psychologique peut survenir, obligeant ainsi les policiers à être attentifs aux signes indiquant que les occupants ne se sentent pas libres et à les informer clairement de leur liberté de mouvement

R. v. O'Brien, 2023 ONCA 197

Lien vers la décision

[37]      I accept the trial judge’s conclusion that the s. 9 breach was of minimal seriousness. There is no basis on the evidence for inferring that the police intentionally set out to detain Mr. O’Brien or acted negligently in doing so. I would say, however, that given the inherently coercive nature of warrant execution, and the reaffirmation in R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, that psychological detention can occur during the execution of search warrants, police officers who assume control over occupants in order to secure the scene of a search should pay closer attention to whether there are objectively reasonable indications that those persons may consider themselves to be detained than the police officers did in this case. It is a simple matter to explain to occupants why they are being directed, and to notify them when and where they are free to go.

L’exécution d’un mandat de perquisition n’est pas assujettie à un délai automatique d’un jour, mais doit plutôt s’effectuer dans un délai raisonnable en fonction des circonstances propres à chaque affaire.

Cyr-Larivière c. R., 2026 QCCA 325

Lien vers la décision

[15]      Par ailleurs, l’appelante soulève un moyen qui n’a pas été présenté au procès. Une fois le mandat de perquisition signé, les policiers ont attendu sept jours avant de l’exécuter. Le mandat ne fixait aucun délai explicite. Toutefois, l’appelante plaide maintenant que la perquisition était illégale et abusive parce qu’exécutée après l’expiration de la période de validité implicite du mandat. S’appuyant sur l’arrêt R. c. Saint, 2017 ONCA 491, et sur une référence à cet arrêt dans R. c. Samuels, 2024 ONCA 786, par. 28, elle soutient que le mandat devait être exécuté le jour même de son émission.

[16]      Certes, l’exécution tardive du mandat de perquisition peut soulever des interrogations. Il est établi qu’un mandat doit être exécuté rapidement alors que les renseignements sur la base desquels il est émis sont encore valables. Un mandat qui ne prévoit pas de délai explicite comporte assurément l’exigence implicite que la perquisition soit exécutée en temps utile. Cependant, il est douteux, à tout le moins, que l’arrêt Saint impose un délai d’un jour dans tous les cas. Dans cette affaire, l’accusé plaidait que le mandat de perquisition en question avait une durée d’exécution illimitée, parce qu’il ne comportait pas de date d’exécution précise, ce qui le rendait invalide. En rejetant cet argument, la Cour d’appel de l’Ontario a notamment estimé qu’il était possible, sur la base de l’affidavit et des circonstances de l’affaire, d’inférer que la date d’exécution du mandat était le jour même de sa délivrance. En particulier, l’affidavit spécifiait la date envisagée pour la perquisition et celle-ci a été autorisée et exécutée à cette même date. Ainsi, la Cour se livrait à un examen contextuel, et non à l’énoncé d’une règle d’application générale fixant à un jour le délai d’exécution d’un mandat de perquisition. Selon ce qui appert de la jurisprudence et de la doctrine, le mandat doit plutôt être exécuté dans un délai raisonnable compte tenu des circonstances spécifiques de l’affaire : R. c. Coull, 33 CCC (3d) 186, 1986 CanLII 4753 (C.A.C.B.), par 12; Martin Vauclair, Tristan Desjardins et Pauline Lachance, Traité général de preuve et de procédure pénales 2025, 32^e éd., Montréal, Yvon Blais, 2025, par. 13.79; James A. Fontana et David Keeshan, The Law of Search and Seizure in Canada, 13^e éd., Toronto, LexisNexis, 2024, p. 358-360.

Le processus de soumission successive des demandes de mandat à deux juges différents, avec divulgation complète de la première décision et des motifs de refus, ne constitue pas du "judge shopping"

R. v. Bond, 2021 ONCA 730

Lien vers la décision

[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.