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| Patrick J Ducharme |
The affidavit sworn in support of an application for a search warrant, referred to as the “Information to Obtain”, or, an ITO, must provide sufficient facts to permit the issuing Judge or Justice to determine whether the warrant should be issued. It must at least contain evidence about the alleged offence, the evidence to be seized, and the location of the search; such that reasonable grounds exist for the Justice to order a search based on the fact that at that location the search will likely afford evidence of an alleged offence. The affiant who signs the affidavit has a duty to be full and frank disclosure of material facts.1 In providing information to the issuing Justice full and frank disclosure is particularly necessary because the application is brought and dealt with ex parte.
The test is not whether the reviewing court would itself have issued the search warrant, but whether there was sufficient credible and reliable evidence to permit a Justice to find reasonable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified place and time.3 The reviewing court does not perform its review solely on the basis of the ITO. Instead, the reviewing court must exclude erroneous or false information included in the ITO. The reviewing court may have reference to “amplification” evidence that is additional evidence presented on the voir dire to correct errors that may have been made in the ITO. But this additional evidence should only correct good-faith errors of the police in preparing the ITO, not deliberate attempts to mislead the authorizing Justice.
In considering the validity of a search warrant, facts obtained as a result of an unreasonable search, or information that is inaccurate or misleading must be excised. The court must then determine whether the warrant would have been issued without the improperly obtained or presented facts.
Information supplied by a reliable informer, although it is hearsay, may provide the necessary ground to justify granting of a search warrant. However, the mere statement of an informant that he was told by a reliable informer that a certain person is carrying on criminal activity or that contraband would be found at a certain place would be an insufficient basis for granting a warrant. The underlying circumstances disclosed by the informer for his conclusion must be set out in the ITO, thus enabling the Justice to satisfy herself that the requisite reasonable grounds exist. Often the police informant will advise the Justice of additional police information based upon further investigation that supports or augments the information of the confidential informer.
In Leipert7 the Supreme Court of Canada examined the role of an anonymous confidential informant (“CI”) and the protections that might be afforded CI’s by our courts. The court considered the issue of an ITO based upon a tip from an anonymous informer under a Crime Stoppers Program. Only when disclosure of the identity of the informer is necessary to establish the innocence of the accused ( now conveniently referred to as ‘the innocence at stake’ exception) will the court order disclosure; otherwise, the information remains privileged and cannot be produced, whether on a hearing into the reasonableness of the search or on the trial proper.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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