Simon's Megalomaniacal Legal Resources

Criminal - Search Warrants (2)

. R. v. Shirley

In R. v. Shirley (Ont CA, 2024) the Ontario Court of Appeal considered how to examine the legal adequacy of a tracking warrant's 'Information to Obtain' in the context of confidential informant redactions:

[11] The appellant brought a s. 8 Charter application, claiming that the redacted ITO contained insufficient grounds to support the issuance of the warrants. The appellant argued that the issuing justice could not have issued the warrant given the insufficiency of the grounds as reflected in the redacted Information: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452.

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[13] Whether there existed reasonable grounds to believe that the tracking warrant would assist in the investigation (s. 492.1(1)) or reasonable grounds to suspect that the transmission data would assist in the investigation (s. 492.2(1)), relied almost wholly upon the strength of the information provided by the confidential informants. This in turn required an assessment as to whether the informants were credible and whether the information they provided was compelling and corroborated: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 28.

[14] This left the Crown with the option of trying to justify the issuance of the warrants based upon the redacted ITO, often referred to as step five of Garofoli, or proceeding under step six and asking the trial judge to review unredacted information: Garofoli, at pp. 1460-61.

[15] The trial Crown was clearly not inclined to proceed under step six. Instead, the trial Crown was prepared to proceed under step five and have the court assess the adequacy of the grounds for issuance on the basis of the redacted ITO, as supplemented by the Crown Summary of Appendix B. The appellant was prepared to accept that the summary was accurate and could be used for this purpose.

[16] At one point in the trial Crown’s oral submissions on the compelling and corroborated nature of the confidential source information, the trial judge asked if he would necessarily be speculating about those issues. The trial Crown responded that the defence had conceded the accuracy of the summary, but that if the trial judge had any concerns over its accuracy, he could open the sealed packet and verify the accuracy of the summaries.

[17] At no point did the trial judge open the sealed packet. Instead, he concluded in his ruling that he could not give the police “credit” for what “may have been provided to the issuing justice.” He expressed dissatisfaction with the trial Crown’s decision not to proceed to a full-blown step six procedure and, ultimately, concluded that a s. 8 breach had been made out because the redacted ITO contained insufficient grounds to support the issuance of the warrants.

. R. v. Shirley

In R. v. Shirley (Ont CA, 2024) the Ontario Court of Appeal illustrates the issuance and use of a telephone 'tracking warrant':

[5] An Ontario Provincial Police officer prepared an Information to Obtain (“ITO”) for a tracking warrant pursuant to s. 492.1(2) of the Criminal Code, R.S.C., 1985, c. C-56 and a transmission data recorder warrant pursuant to s. 492.2(1). The ITO described the “involved person” as an “unknown male” who was believed to be involved in trafficking in drugs and using a specified telephone number “to facilitate the dealing.”

[6] The affiant set out the fact that two confidential informants had provided their handlers with information about what appeared to be the same “unknown male” who was selling Schedule I drugs in the Peterborough area. The informants both provided to their police handlers the same phone number used by the unknown male. To protect the identity of the confidential informants, the affiant included all relevant information about the informants in Appendix “B” to the ITO. That appendix provided information that was said to support the credible, compelling, and corroborated nature of the information they had provided.

[7] The ITO also addressed why it was said that tracking the telephone corresponding to the number both informants had provided, as well as obtaining data pertaining to the use of that telephone, would assist in the drug investigation. Among other things, these investigative measures would assist in determining the identity of the drug trafficker, as well as his whereabouts.

[8] Once the warrants were obtained, a surveillance team was able to track the phone over a number of days and ultimately the police were able to determine the appellant’s identity and confirm his activities as a drug trafficker.

[9] The appellant was eventually arrested while driving a vehicle. Fentanyl, cocaine, crystal methamphetamine, drug paraphernalia, and cash were located when the vehicle was searched incident to arrest. The phone corresponding to the number that the confidential informants had provided was also located in the vehicle.

. R. v. Pulford

In R. v. Pulford (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown appeal of an acquittal of "possession of child pornography contrary to s. 163.1(4) of the Criminal Code", emanating from "a Garofoli application where the search warrant authorizing the search of the respondent’s home was found to be unlawfully obtained".

Here the court considers the effect of formal 'oath' faults in the 'information to obtain' (ITO) the warrant:

Issue 1: Did the use of an expired stamp by the commissioner of oaths invalidate the ITO?

[19] The respondent made no submissions on this issue and conceded that the evidence should not have been excluded under s. 24(2) if this had been the only breach that invalidated the search warrant.

[20] There are two components to this issue: 1) Could the additional evidence contained in the agreed statement of facts be used to rectify the facial error by the commissioner of oaths?; and 2) if it could, did that evidence sufficiently address the problem of the expired stamp?

[21] With respect to the first component, clear precedent from this court, followed in subsequent cases in the Superior Court of Justice, establishes that where there are errors on the face of the ITO in connection with the jurat of the commissioner of oaths, including failure by the commissioner to sign the jurat and failure by the affiant to sign the affidavit, extrinsic evidence is admissible to demonstrate that the ITO was in fact properly sworn: R. v. Lachance, [1988] O.J. No. 151 (C.A.), rev’d on other grounds, 1990 CanLII 53 (SCC), [1990] 2 S.C.R. 1490; R. v. Waldron, [2018] O.J. No. 2445 (S.C.); R. v. Dixon, 2012 ONSC 181.

[22] Regarding the second component, the reviewing judge found that the error with the stamp was not corrected by the evidence in the agreed statement of facts, and that the result was that it jeopardized the oath:

What was affixed was an expired stamp, therefore, that document is not valid on its face. There is no information before me that could correct that. Even if the commission had been extended, as indicated in the agreed statement of facts, the document on its face, and relying on Sadikov [2014 ONCA 72, 305 C.C.C. (3d) 421], that this is a facial validity issue, results in a situation that this document was not shown to be taken under oath by someone who was able to take an oath from an individual.

So, if anyone is going to take an oath who has a limitation, such as the commissioner in this situation had a limitation, they must comply with that Act in order to take something under oath. If they take it otherwise, it is as if it was not under oath.

[23] The Commissioners for Taking Affidavits Act defines who has the authority to administer an oath in Ontario, and includes commissioners by virtue of holding an office, such as lawyers, and others who are appointed by the Attorney General. The first group has no temporal or territorial limitation on their authority in Ontario, while the latter are appointed for three years, renewable, and may have territorial or other limitations on their authority.

[24] Section 5 of the Act provides:

5. Every commissioner whose appointment is limited in its duration or as to territory or purpose shall indicate the limitation by means of a stamp approved by the Attorney General or his or her delegate under subsection 4(1.1) and affixed under the commissioner’s signature.

[25] In this case, the commissioner affixed the stamp that applied to her expired appointment. The agreed statement of facts explained that the commissioner’s appointment had been renewed before it expired and that on the date the ITO was sworn, February 3, 2020, “the commissioner held a valid appointment for administering oaths and taking affidavits in Ontario.”

[26] Although the agreed statement does not state explicitly that the commissioner had the appropriate stamp to affix in connection with her renewed appointment, that is implied by the agreed statement. Having a valid appointment includes the ability to exercise that appointment, which requires affixing the stamp each time.[1]

[27] The Criminal Code requires that a justice issuing a search warrant be satisfied by information sworn “on oath”. The evidence in the agreed statement is sufficient to satisfy the court that the ITO was made under oath, and that the commissioner who took the oath had the authority and the capacity to validly do so. The error on the face of the ITO is corrected by the evidence in the same way that it was in Lachance.

[28] I therefore conclude that the reviewing judge erred in law by invalidating the warrant on the basis of the facial defect created by the use of the expired commissioner’s stamp and by excluding the evidence under s. 24(2) based on that s. 8 breach.