R. v. Steed, 2020 NSSC 86

SUPREME COURT OF Nova Scotia Citation: R. v. Steed , 2020 NSSC 86 Date: 20200306 Docket: 490969 Registry: Halifax Between: Her Majesty The Queen v. Javon Dominick Steed Library Heading Judge: The Honourable Justice Peter P. Rosinski Heard: January 17, 24 and March 2, 2020, in Halifax, Nova Scotia Written Decision: March 17, 2020 Subject: Facial and sub- facial validity of information to obtain a search warrant of car

Summary: Mr. Steed is charged with a number of firearms related offences, arising from multiple gunshots fired at another individual. Not long after the shots were fired, his car was stopped and seized by police while he was driving it. Found in plain view were a speed magazine loader for a handgun and handcuffs. No firearm was found after a visual inspection. A search warrant was authorized to search the vehicle after seizure. This included a scan by a Canadian Border Services Agency machine, which did not positively identify the presence of a handgun within the body of the car.

Within several days police received information from a confidential informant that suggested there was a gun hidden inside the body of the car. The information to obtain the second warrant, through inadvertence did not refer to the issuance of the first warrant and that there had been no evidence of a gun found during that search. Mr. Steed challenges the sub- facial and facial validity of the second warrant.

Issues: 1. Does the omitted information require that the warrant to be quashed “to avoid thecorruption of the judicial process which would result if deliberate efforts to mislead judicial officers inthe discharge of their judicial functions could nonetheless lead to valid judicial orders” per R v Sismey, (BC CA), [1990] BC J No. 757 (CA)?; If the answer is “no”. 2. Is the confidential informant’s information sufficiently reliable for inclusion in the ITOper R v Debot, (SCC), [1989] 2 SCR 1140 (including a consideration of whether it iscompelling, credible and corroborated)? If the answer is “yes”. 3.

Are there in the Information To Obtain, evidence of reasonable grounds to believe that, anoffence has been or is suspected to have been committed, and that anything that will afford evidencewith respect to the commission of an offence will be found in the place specified ( s. 487 CriminalCode)?

Result: 1. (NO) to the extent that this extraordinary judicial discretion exists, its consideration is nottriggered in the circumstances of this case, including the finding that it was an honest oversight. 2. (YES) the informant’s information is sufficiently reliable - it has a sufficient degree of detail,discloses their means of knowledge, combined with indicia of ongoing reliability – compelling,credible and corroborated. 3. (YES) a justice of the peace acting judicially could reasonably have concluded that there werereasonable grounds for a second search of the car. SUPREME COURT OF Nova Scotia Citation: R. v.

Steed, 2020 NSSC 86 Date: 20200306 Docket: 490969 Registry: Halifax Between: Her Majesty The Queen v. Javon Dominick Steed Decision – Voir Dire re Search Warrant Judge: The Honourable Justice Peter P. RosinskiHeard: January 17, 24 and March 2, 2020, in Halifax, Nova ScotiaCounsel: Steve Degen, Crown Attorney Mark Bailey, Defence Attorney

By the Court: Introduction [1] Mr. Steed is charged with 25 counts of firearm offences all in relation to an incident of multiple gunshots directed at anindividual on Gottingen Street in Halifax, around 11 PM, March 27, 2019. On March 29 and April 1, 2019, search warrants were issuedin relation to the Dodge Charger it is alleged he was driving during the time of the offences. [2] On a sub- facial and facial basis, couched in terms of an argued

section 8 Charter of Rights violation, he challenges thelawfulness of the search warrant issued April 1, 2019, which authorized the second search of a Dodge Charger, Nova Scotia Licenseplate GED 522, registered to his mother Rosalind Steed. [3] He says that the search warrant’s lawfulness is brought into question because there is: 1. sub-facially relevant evidence (i.e. not apparent on the face of the Information to Obtain (“ITO”) document)[1], namely: that the affiant (Detective Constable (“DC”) Aaron Head) did not disclose in the second ITO, namely that he had already sworn the firstITO and obtained a search warrant which yielded no evidence after a search of the vehicle, the effect thereof being that the Justice of thePeace was misled regarding the relevant information available and known by DC Head, and the warrant therefore should be quashed “toavoid the corruption of the judicial process which would result if deliberate efforts to mislead judicial officers in the discharge of theirjudicial functions could nonetheless lead to valid judicial orders” per Lambert JA in R v Sismey, (BC CA), [1990]BCJ No. 757 (BCCA).

More specifically, that there were misleading material omissions from that ITO by DC Head- namely, it failed tostate that: a. on March 29, 2019 a warrant had already been issued for a search of the same vehicle, containing the same grounds in the ITO(except that the second ITO additionally contained one confidential informant’s information); b. the March 29 search (which involved a Canadian Border Services Agency (“CBSA”) machine scan of the car and a further visualsearch by Halifax Regional Police (“HRP”) officers) did not reveal any evidence; and 2. further sub- facial and a facial examination of the grounds relevant to the second ITO reveals an insufficient factual basis for theissuance of the warrant (after editing out inappropriate information, and considering the amplified (added) information provided to thecourt).[2] More specifically that: a. the omitted information significantly undermines the confidential informant’s information, and had it been included, the warrantcould not have issued; and alternatively, if that sub- facial argument is not accepted, a facial argument: b. the confidential informant’s information should not have been included in the second ITO (having regard to the degreeof detail of the tip, the informer’s source of knowledge, and insufficient indicators of the informer’s reliability), and once edited-out, theremaining information was insufficient to permit the issuance of the second warrant.[3] [4] I conclude that the omissions from the second ITO do not undermine the validity of the grounds for the second search warrant,or its issuance;[4] and that the informant’s information is sufficiently credible, compelling and corroborated to be considered by anissuing Justice of the Peace. [5] Therefore, the warrant was validly issued and the evidence recovered from the subsequent search is admissible.

Background[5] [6] At 11 PM March 27, 2019, near 2300 Gottingen Street Halifax, someone discharged multiple gunshots at another individual.A police officer was nearby on Creighton Street with his police cruiser window down. Witnesses described the offender quickly driveoff in a Dodge Charger, and video in the area contemporaneously showed a four-door blue Dodge Charger with a white plate on thefront of the vehicle. The shooter was identified as a male dressed all in black clothing.

The vehicle had previously been parked onnearby Prince William Street. [7] At 11:44 PM, Constable Ash Lewis of HRP saw a blue four-door Dodge Charger (with a white plate on the front bumper) onQuinpool Road heading toward Cogswell Street, Halifax. He was aware of the shooting and description of the vehicle. He followed thevehicle, which accelerated as he got closer to it in his police cruiser. The vehicle entered the rotary which intersects North Park Street andTrollope Street, when it turned sharply onto Trollope Street in an apparent effort to avoid contact with the police.

Constable Lewispursued the vehicle and pulled it over shortly after 11:44 PM. The driver was Mr. Steed, who was dressed in all black clothing. Theroadside vehicle search (assisted by Constable Jordan Chestney, Constable Myles Rattray, and ultimately Sergeant Kevin Hovey)revealed handcuffs in a box on the driver’s side of the vehicle, and a loaded “pistol magazine loader” in the area of the front passengerdoor, as well as a black bandanna under the front passenger seat.[6] [8] The vehicle was confirmed to be registered to Mr. Steed’s mother.

The vehicle was seized and taken to HRP’s secure garage,given traffic and lighting issues affecting officer safety. Sergeant Hovey decided to have a search warrant drafted in relation to furthersearch the car. [9] Two search warrants were issued permitting a search of the Dodge Charger (which generally fit the description given bymultiple witnesses at the scene ) which Mr. Steed (who generally fit the description of the shooter) habitually operated, including during

the time of the offences on March 27, 2019. [10] Based on an ITO sworn by DC Aaron Head, the first search warrant was issued March 29, 2019 and a search executed that dayon the Dodge Charger.

No firearm or other evidence was then discovered.[7] [11] Within two days, confidential informant information was received by HRP providing a further basis for a follow-up search ofthe vehicle. [12] The second search warrant was issued April 1, 2019 and a more intensive and intrusive search executed April 2, 2019 revealed,secreted within the body of the car, the following items: 1. a Taser; 2. a knife; 3. a plastic bag with a loaded black handgun (fabricated of metal and of non-metal components) with a magazine containing 20 roundsof ammunition; 4. additional rounds of ammunition in a clear plastic bag. [13] Thereafter, Mr.

Steed was charged with the offences in question. 1. Mr. Steed’s position regarding the omitted references to the first ITO/Search Warrant including the challenge based on thereasoning in R v Sismey, (BC CA), [1990] B.C.J. No. 757. [14] Mr. Steed challenges the validity of the second warrant.

Succinctly stated, he says DC Head (arguably deliberately) omittedmaterial relevant information from the second ITO (ie. that the first warrant had been issued, and upon visual inspections and a CBSAscan no evidence was found), which misled the issuing Justice of the Peace, consequently the warrant should be quashed “to avoid thecorruption of the judicial process which would result if deliberate efforts to mislead judicial officers in the discharge of their judicialfunctions could nonetheless lead to valid judicial orders” per the reasons in Sismey, (BC CA), [1990] BCJ No. 757(CA).

My role as the reviewing judge [15] It is helpful at this stage to keep in mind the procedural context in such cases and recall the restricted nature of the review I amasked to undertake.[8] [16] More specifically regarding the principles relating to the review of an ITO for facial validity, a helpful

summary can be found inJustice Hill’s decision in R v Ngo, 2011 ONSC 6676:[9] General Principles 33 In a s.8/24(2) pre-trial motion, the court reviewing a search warrant ITO does not stand in place of the justice of the peace who issuedthe warrant. The properly circumscribed limits of review were summarized in R. v. Mahmood et al., 2011 ONCA 693, at para. 99: A reviewing judge does not substitute his or her view for that of the justice who issued the warrant.

Rather, the reviewing judgeconsiders the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, butamplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remainssufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, atparas. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R.992, at paras. 54 and 59: R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley (SCC),[1993] 3 S.C.R. 263, at pp. 273-274. (emphasis of original) 34 In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts including: (1)The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v.

Campbell,2010 ONCA 588, at para. 45. (aff'd, 2011 SCC 32). (2)"[T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors oracts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency ofthe evidence in support of the application": R. v. Nguyen, 2011 ONCA 465, at para. 57. (3)As noted in R. v. Cunsolo, [2008] O.J.

No. 3754 (S.C.J.)(QL), at para. 135: The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of thedocument, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, acommon sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question:R. v. Grant (1999), (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No.168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, (ON CA), [1998] O.J.

No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143(C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al.v. British Columbia (Attorney General) (1991), (BC CA), 2 B.C.A.C. 73 (C.A.) at 79.

(4)Police officers are not legal draftspersons and cannot, in an ITO, be expected to "spell out things with the same particularity ofcounsel": Re Lubell and the Queen (1973), (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Durling (2006),2006 NSCA 124 , 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), (ON SC), 93 C.C.C. (3d)357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983), (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.), at p.297.

(5) It will not be surprising that an ITO will have some flaws - "[f]ew applications are perfect": Nguyen, at para. 58. The questionremains whether the core substance of the ITO could support the justice of the peace's exercise of discretion to issue the warrant. (6)While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITOaffiant need not attempt to replicate a Crown disclosure brief - the document should be clear, concise, legally and factually sufficient, and"need not include every minute detail of the police investigation": C.B.C. v.

A.-G. for New Brunswick (1991), (SCC), 67C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65 , 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; R. v. Ling(2009), 2009 BCCA 70 , 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165). 35 Central to the current application is the concept of reasonable grounds to believe. In the context of a search warrant ITO, theoverarching principles may be summarized as follows:

(1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. Thisstandard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case (R. v. Debot (1989), (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213) "or even on a balance of probabilities": R. v. Jacobson (2006), (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds "are not proof absolute" though theymust be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418 , 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is afact-specific determination in each case.

(3) Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. The point was made in Campbell,at para. 57: Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could havefound from their cumulative effect that there were reasonable grounds to issue the warrant. See also R. v.

Nguyen, 2007 ONCA 24, at para. 4: ("The cumulative effect of the information demonstrated the existence of reasonableand probable grounds to believe that a grow operation would be found inside the house"). 4) "It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITOsupporting the request" for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), (ON SC), 223C.C.C. (3d) 417 (Ont.

S.C.J.), at para. 320, the court stated: Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frankdisclosure of material facts" with the relevant facts set out "truthfully, fully and plainly": Araujo, 2000 SCC 65 , [2000] 2 S.C.R.992, at 469-470 (emphasis of original). A justice can only perform the judicial function of issuing a warrant if "provided with accurateand candid information": R. v. Hosie (1996), (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.) at 399; R. v. AgensysInternational Inc. (2004), (ON CA), 187 C.C.C. (3d) 481 (Ont.

C.A.) at 491. The "requirement of candour is notdifficult to understand; there is nothing technical about it": R. v. Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539(N.S.C.A.) at 551. An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example bythe use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": Araujo, at 470.

Carelesslanguage in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have beenmet" and "strikes at the core of the administration of justice": Hosie, at 398-400.

(5) The affiant's experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds ofbelief. This principle was described at para. 68(6) of the Cunsolo case in these terms: Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), (SCC), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007ONCA 10 , [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont.C.A.) at 501; R. v.

Juan (2007), 2007 BCCA 351 , 222 C.C.C. (3d) 289 (BCCA) at para. 19; R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341 (C.A.) at para. 12; R. v. Mouland, 2007 SKCA 105 , [2007] S.J. No. 532 (C.A.) at paras. 26-27; R. v. Ingle, [2007] B.C.J. No. 2024 (C.A.) at para. 53; R. v. Rajaratnam (2006), 2006 ABCA 333 , 214 C.C.C. (3d) 547(Alta. C.A.) at 559; R. v. Grotheim, 2001 SKCA 116 , [2001] S.J. No. 694 (C.A.) at para. 30; R. v. Quillian, (AB KB), [1991] A.J. No. 1211 (Q.B.) at para. 56.

The soundness of this approach has been specifically recognized in the context of marihuana grow-op investigations: "The officer'sobservations, filtered through his experience with marijuana cultivation operations, provided sufficient information upon which thejustice could have issued the warrant": Jacobson, at para. 22.

(6) An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious:Lubell, at p. 190.

(7) A court considering the issuance of a search warrant is entitled to draw "reasonable inferences:" R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124 , 214 C.C.C. (3d) 49 (N.S.C.A.), atpara. 20, 27; R. v. Jackson (1984), (BC CA), 9 C.C.C. (3d) 125 (B.C.C.A.) at p. 131; Re Lubell, at p. 190; R. v.Sanchez (2004), (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct.-Gen. Div.), at pp. 365, 370; R. v. Church of Scientology (No.

6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) , at pp. 514-5 (leave to appeal refused, [1989] S.C.C.A. No. 87, [1989] 1 S.C.R. vii).

(8) Only infrequently is an ITO affiant required to discuss things not observed at the suspected site of a marihuana crow-op: Nguyen (2011), at para. 50. It is implicit that the surveillance did not observe other indicia of the existence of a grow-op: Nguyen (2011), at para. 50. "There is no obligation" on a warrant applicant "to explain away in advance, every conceivable indicia of crime they did not see or sense": Nguyen (2011), at para. 51.

(9) While a dwelling-house attracts a high level of expectation of privacy, there is no investigative necessity pre-requisite to the issuance of a warrant to search a house in the way there might be for a law office, media premises or a church. As noted in Nguyen (2011), at para. 51, "[t]here is no obligation" on the police in applying for a search warrant to explain "every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event".

Principles Applied to this Case 36 In his very thorough submissions, Mr. Ghosh undertook a systematic review of each paragraph in the ITO.

He was of course entitled to do so but, at the end of the day, it is necessary to stand back and assess the substantive core of the ITO , despite its imperfections including irrelevancies, matters arguably short on detail, potentially misleading language, etc., and ask whether the challenging party has demonstrated the absence of any reasonable basis for the issuance of the warrant . 37 In this case, the core informational content , summarized at para. 8 above, supports the reasonable inferences advanced by the ITO affiant and in turn provided a foundation upon which the justice of the peace, acting reasonably and judicially, could issue the warrant .

That said, I intend to address some of the arguments made on behalf of Mr. Ngo. … 40 These instances of Krause's descriptions are not consequential in terms of being capable of materially misleading the issuing court. … 46 Could more detail have been provided in the ITO? Yes.

But the real issue is whether the level of detail which was provided was so lacking in substance and precision, or susceptible of being materially misleading, such that it would have negatively impacted upon a discriminating and independent exercise of discretion on the part of the justice of the peace … [My italicization added] The evidence presented at the voir dire [ 17 ] As noted earlier, I have contextually available to me the uncontroversial facts as represented by counsel in their oral and written submissions.

Beyond that, I granted leave to cross-examine DC Head, and have come to conclusions relevant to this first stage of my inquiry into the lawfulness of the April 1, 2019 issued search warrant. [ 18 ] In

summary, DC Head testified regarding his experience as a police officer: he joined HRP in 2006 as a patrol officer; he then moved to community policing, until he became a member of the K-9 unit, and ultimately a member of the General Investigative Services (“GIS”) unit in August 2018. [ 19 ] Before joining GIS, he had taken a seven-day “warrant” course in 2010 – 2011; yet had only written one ITO for a (so-called Feeney ) warrant. While with GIS he had written five warrants before April 1, 2019, but this was his first warrant containing confidential informant information.

He observed that typically, before joining GIS, officers take the level II GIS investigators course which does deal with search warrants. He did not have the benefit of this course, and was exempted from taking it to allow other officers more in need of the course to take it, and because he was considered to have effectively had, through numerous courses taken and his practical experience, a somewhat equivalent knowledge base. [ 20 ] He noted that in the past, normally he would consult his supervisor regarding any ITOs he drafted.

In this case he did have his supervisor read over the draft of the first ITO, and after making changes suggested, presented it to the Justice of the Peace, who issued the warrant based on the ITO as presented. [ 21 ] DC Head acknowledged that if he had the opportunity to do it again, he would have included the references in issue.

He testified regarding the chronology of events: 1. he had no involvement with this matter, until he was asked to draft the first ITO on March 28, 2019; 2. he received the first warrant at about 9 AM on March 29, 2019 from Justice of the Peace Rose at the Dartmouth Justice of the Peace Centre; 3. since its seizure the Dodge Charger had been securely stored at HRP’s garage, from where, on the afternoon of March 29, 2019, he ensured its continuity to the Burnside Industrial Park location of the CBSA, where it was subjected to a scan which can reveal hidden items, but did not do so in this case (although the CBSA staff advised the officers that there was an obscure area on the passenger side door which they might want to examine further); 4. from there the vehicle was moved by tow-truck to a nearby privately-owned towing compound, where he and another Constable

carefully made a further visual inspection (which ended in the afternoon) yet did not reveal any new evidence.

They consciouslydecided not to destroy or dismantle parts which would damage the integrity of the car; 5. on March 30, 2019 Sergeant John Berger, his supervisor, told him, knowing that the March 29, 2019 search results were negative,that they had received some confidential informant information, as a result of which he wanted DC Head to prepare a second ITO, andsaid to him, words to the effect that, he should “just add the source information to your grounds you already have”;[10] 6. he reviewed the unredacted source information, and by 5:40 PM on April 1, 2019 he went to the Justice of the Peace Centre andpresented the second ITO to Justice of the Peace Gass (as a result of their interactions, he made some handwritten changes to the secondITO), and she granted the second warrant. [22] In relation to the question why he did not include references to the first warrant and outcome of those searches in the secondITO, he stated at various points in his testimony: 1. he knew that “as a general rule of thumb, ‘full, fair, and frank disclosure’ is required in any ITO; 2. “it was missed in error, I did not speak to anyone else [on April 1, 2019] – there were not many people in the office that day”; 3.

Question: “It never occurred to you to add it?” Answer: “No”. [23] I observed and listened carefully to DC Head while he testified. Inter alia, I considered whether his testimony was consistentwith the other evidence presented, internally consistent, and in accord with common sense. I am satisfied that he was testifying honestlyand reliably[11] in relation to the matters at issue here. His omission of the existence of the first warrant and the results of the March 29,2019 searches were an honest oversight. His omission thereof was not deliberate.

He did not intend the omissions to be misleading. [24] Thus, I will next turn to the jurisprudence in determining what effect his omissions should have on the lawfulness of theissuance of the second search warrant. A consideration of the jurisprudence regarding the effect of the factual omissions from the second ITO on the lawfulness of theissuance of the second warrant [25] The facts in Sismey were that, in 1986 the affiant police officer swore in an ITO that: [pursuant to a search warrant to supportthe request for a search warrant of a dwelling house] Mr.

Sismey had been found in possession of ¼ ounce of cocaine, weigh scales and1 ounce of marijuana in 1983 - and that - “Indications are from various sources of unknown reliability that [ Mr. Sismey] is still usingnarcotics.”. He omitted the fact that the search warrant in the 1983 case had been quashed, and the related criminal charges weredismissed. The affiant also knew that Mr. Sismey had no criminal record.

In that context, the court commented: “[In relation to the issue of the omissions by the affiant, the trial judge’s reasons included]: 3.The informant, clearly, should not have stated in the information that the accused had, in July 1983, been found in possession of anarcotic. The fact was he was charged but acquitted of that offence. Notwithstanding the impropriety and inaccuracy contained in the information the Justice of the Peace had before him evidence thatdrugs were in the dwelling-house of the petitioner. Titan Industries Ltd. et al v.

The Queen (1986), (BC SC), 31C.C.C. (3d) 442 is authority for the proposition that even though some of the grounds of belief contained in the information areinaccurate or improper the warrant should not be quashed if the balance of the grounds are such that the Justice of the Peace could findreasonable grounds to believe that drugs were illegally in the possession of the person whose premises it was sought to search. The information included direct and current evidence of the fact that drugs were in the dwelling-house of the petitioner. That wassufficient to justify the granting of the warrant.

To succeed on this certiorari application the petitioner must show that there is no evidence upon which a Justice of the Peace actingjudicially could issue a warrant. I am satisfied that there was evidence before the Justice of the Peace and that he acted judicially.Accordingly, the petition is dismissed. The principal issue raised in this appeal relates to the third point dealt with by Mr. Justice MacKinnon in the way I have set out. The search warrant procedure is a fundamental tool of investigation. Search warrants are obtained on the basis of hearsay evidence.

Theyshould not be subject to technical objections which do not go to a substantial point in relation to the warrant itself or to the process whichauthorizes the warrant. See Re Lubell and The Queen (1973), (ON SC), 11 C.C.C. (2d) 188 (Ont.) a decision of Mr.Justice Zuber, and R. v. Debot (1987), (ON CA), 30 C.C.C. (3d) 207, a decision of Mr. Justice Martin for the OntarioCourt of Appeal.

Where there is an inadvertent error in the information or in the warrant itself, the proper question for the Court to ask is whether, if theerroneous part were to be deleted, the information or the warrant could stand by itself. In the case of the information, the question iswhether the information, with the erroneous part deleted, could have provided sufficient evidence to permit the warrant to be issued. SeeRe Titan Industries Ltd. and The Queen (1987), (BC SC), 31 C.C.C. (3d) 442 at 447, (B.C.S.C.), a decision of Mr.Justice Spencer. The point was put in this way in R. v. Guthro, [1990] B.C.J.

No. 321 (CA009611; 8 February, 1990), a decision of thisCourt in which Mr. Justice Anderson, in giving reasons for the Court, said this: As to the paragraph in the warrant stating that the accused had been previously charged with possession of marihuana, the learned trialjudge considered the error to be honest and inadvertent and therefore not serious enough to justify Quashing the warrant. . . . I would dismiss the appeal for the reasons given by the learned trial judge. [My italicization added] On the other hand, when the Justice of the Peace is intentionally misled the search warrant can not stand.

The quashing of a warrant ina case where the Justice of the Peace has been intentionally misled is not for the purpose of punishing the police by releasing a criminalwho ought to be convicted. There is no benefit to society in that. The quashing of the warrant is to avoid the corruption of the judicialprocess which would result if deliberate efforts to mislead judicial officers in the discharge of their judicial functions could nonethelesslead to valid judicial orders. This case does not fall in either category. The fifth paragraph of the Information could be said to be accurate. But it is incomplete.

Onemust suppose that the failure to set out the complete facts about the previous possession incident, particularly the fact that there hadbeen a charge arising from that incident but no conviction, was intentional. The effect of paragraph 5 being incomplete was to leave anincorrect impression of the facts covered by that paragraph with the Justice of the Peace. In those circumstances, the description ofDonald Sismey as "still using narcotics" is a statement that is somewhat less than straightforward and accurate.

However, there isnothing to show that there was a deliberate attempt to mislead the Justice of the Peace. In my opinion, cases that are not clearly in the category of "inadvertent error" on the one hand, or clearly in the category of"deliberately misleading" on the other hand, have to be considered individually to decide whether the case is one where, if theinformation in support of the warrant is clearly sufficient, without the erroneous part, the search warrant should be allowed to stand.

In this case I think that paragraph 5 was of sufficient significance to the Information as a whole and was sufficiently misleading, throughbeing incomplete, that the proper course is to quash the search warrant. It is not necessary for me to deal with the other two grounds ofappeal.

I would allow the appeal and grant an order of certiorari quashing the search warrant. [My italicization added] [26] Since then, other courts have refined the appropriate primary analysis in such cases to a more contextual one, where (whetherinadvertently or even fraudulently made) material misleading information is included in, or in cases of material non-disclosure from, anITO, those occurrences do not automatically invalidate a warrant, rather the information should be expunged therefrom, (or addedthereto in the case of material omissions per para. 43 Paryniuk and para. 59 Booth), and thereafter the sufficiency of reasons for issuanceof the warrant should be assessed as to whether there remains a continuing basis to support the issuance of the warrant. [27] Nevertheless, consistent with the suggestions in Sismey the question arises: does there remain a residual discretion to quash awarrant which is sufficient (after improper relevant material information is expunged and proper relevant material information is added)to otherwise be issued?

Yes, there is such a discretion, but resort to it is extraordinary. The standard has been described as “high” andlikely requires some conduct amounting to an abuse of process (eg. see R v Paryniuk at paras. 36, 43 and 48-70), and “so subversive of[the pre-authorization process] that the search authority issued must be set aside to protect the process and the preventative function itserves” (para. 55 Paryniuk).[12] [28] In R v Morris, 1998 NSCA 229, Justice Cromwell (as he then was) stated:[13] 33 The prior authorization process, however, is quite fragile.

When the police attend before a Justice of the Peace, no one, for obviousreasons, is there as an advocate of the interests of the target of the search. The justice of the peace will usually not be a lawyer or a judge.The circumstances under which the warrant is sought may be urgent and the process, of necessity, quite informal. This simplydemonstrates that the process depends on two things: the honesty, good faith and diligence of the police when they gather and presenttheir grounds for consideration and the independence and caution of the Justice of the Peace deciding whether to authorize the proposed

search. 34 The nature of the process demands candour on the part of the police. They are seeking to justify a significant intrusion into anindividual's privacy. This is especially so when it is proposed to search a dwelling house which has long been recognized as theindividual's most private place. The requirement of candour is not difficult to understand; there is nothing technical about it. The personproviding the information to the justice must simply ask him or herself the following questions: "Have I got this right?

Have I correctlyset out what I've done, what I've seen, what I've been told, in a manner that does not give a false impression?": see R. v. Dellapenna(1995), (BC CA), 62 B.C.A.C. 32 (B.C.C.A.) per Southin J.A. at para 37. 35 In reviewing police conduct during the prior authorization process, the court's attention cannot focus solely on the particular searchunder consideration. It is tempting to do so, especially where, as here, police suspicions proved to be well founded. However, thepurpose of the prior authorization requirement must be kept in mind.

As noted, that purpose is to prevent unreasonable searches, not tocondemn them after the fact. If the prior authorization process is not vigorously upheld by the courts, it will lose its meaning andeffectiveness. That process is in place to protect everyone from unreasonable intrusions by the state. In considering this, or any other s. 8case, the court must not only protect the rights of this individual, but also protect the prior authorization process which helps assure thatthe rights of all individuals are respected before, not after, the fact. … c.

Does inaccurate and misleading information invalidate the warrant? 39 The appellant submits that the search was unreasonable because the warrant was obtained by deliberately misleading information.Several cases are cited: R. v. Donaldson (1990), (BC CA), 58 C.C.C. (3d) 294 (B.C.C.A.); R. v. Sismey (1990), (BC CA), 55 C.C.C. (3d) 281 (B.C.C.A.); R. v. Dellapenna, supra; R. v. Innocente (1992), 1992 NSCA 4 , 113N.S.R. (2d) 256 (C.A.); R. v. Fletcher (1994), (NS SC), 140 N.S.R. (2d) 254 (S.C.).

Many other relevant authoritiesare collected in Ewaschuk, Criminal Pleadings and Practice in Canada (2d) at 3:1410 and 3:1420. Sismey, supra, states the rule that ifthe justice of the peace is "intentionally misled" the warrant cannot stand. In Dellapenna, the Court found that the information leadingto the warrant was "... so inaccurate and misleading that the search conducted under it was unreasonable" at para 48. 40 It is helpful to place the appellant's submission in the context of the two requirements for search warrants mentioned earlier:reasonable grounds of belief and prior authorization.

At the level of principle, the appellant's submission amounts to this: in order topreserve the effectiveness of the prior authorization process, the warrant must be invalidated if that process has been undermined byplacing inaccurate and misleading information before the Justice of the Peace. While there are certainly cases which support theappellant's argument, I am of the view the Supreme Court of Canada has now clearly ruled against it. The Court, in my opinion, hasdecided that presenting false or misleading material before the Justice of the Peace does not automatically vitiate the warrant.

Theprimary focus on review is on whether the issuing justice could properly have concluded that reasonable and probable cause existed.The prior authorization process is protected in other, less inflexible ways than automatic vitiation of the warrant where it is shown thatinaccurate and misleading information was presented to obtain it. 41 This approach was adopted in the wiretap cases, Garofoli, supra, and R. v. Bisson, (SCC), [1994] 3 S.C.R. 1097;(1995), 94 C.C.C. (3d) 94.

For example, in Bisson at p. 1098, the Court stated: ...errors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered indeciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization. (emphasis added) 42 The same principle has been adopted by the Court in search warrant cases: R. v. Grant, supra and R. v. Plant, (SCC),[1993] 3 S.C.R. 281.

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant. 43 This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automaticvitiation of the warrant, there remains the need to protect the prior authorization process.

The cases just referred to do not foreclose areviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police inseeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and thepreventive function it serves. As I will discuss later in these reasons, the integrity of the prior authorization process is also protected bythe approach on review to fraudulent or intentionally misleading material placed before the Justice. 44 The recent judgment of Esson, J.A. in R. v.

Monroe (1997), (BC CA), 8 C.R. (5th) 324 (B.C.C.A.) is consistent

with my

interpretation of the effect of Garofoli, Bisson, Grant and Plant on decisions such as Donaldson and Sismey. Esson, J.A. said, atparagraph 27: Although it is now clear that deception of the justice will not automatically lead to the warrant being quashed, the words of Hinkson J.A.,speaking for the Court in R. v. Donaldson, supra at 311, continue to reflect the reasons why deception must be viewed seriously: It is not to be overlooked that an application to a justice of the peace for a search warrant is made ex parte.

Thus, it is essential that thepolice not deceive the justice as to the basis on which the search warrants are being sought. [My italicization added] [29] I will briefly examine some of the more notable cases after Morris. [30] In R v Nguyen, 2007 BCCA 264, the court concluded that though not deliberately misleading and no deception was found tohave occurred, where the police affiant cited a “confidential source of believed reliability” yet did not disclose that it was a police officerin a capacity that might give grounds for them to be concerned about being identified as a source:[14] 12 Constable Cartier testified that he did not know the police character of the source, although he realized it "could be a police officer".He also testified that he considered the e-mail demonstrated security concerns...

In my view, there was a sufficient basis upon which thetrial judge could conclude that there was no deliberate misleading of the Judicial Justice of the Peace. That being so, in my view theissue of the effect of a deliberately misleading statement in an Information to Obtain suggested by cases such as R. v. Sismey, (BC CA), [1990] B.C.J. No. 757 (Vancouver Registry, CA009735) of March 30, 1990, cited in R. v. Donaldson, (BC CA), [1990] B.C.J. No. 1857 (BCCA) does not arise. 13 In any event, I agree with the Crown that subsequent jurisprudence, starting with Garafoli, has overtaken those cases.

A recentexpression of this newer approach is found in Araujo, citing with approval R. v. Monroe (1997), (BC CA), 8 C.R.(5th) 324 (B.C.C.A.) where, at p. 333 Mr. Justice Esson stated: The judge was then required to assess the evidence placed before the justice, in the light of the evidence brought out at trial, in order todetermine whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support thewarrant. 14 In Araujo the Supreme Court of Canada made it clear that any analysis must be contextual, citing a passage from R. v.

Morris (1998),1998 NSCA 229 , 134 C.C.C. (3d) 539 at p. 533, that stated that even fraudulent errors do not automatically invalidate awarrant, although they are relevant to the review process. 15 It follows that I find no basis upon which to conclude that the approach taken by Constable Cartier to the information provided byConstable Andrew was either deliberately misleading, or a basis upon which to find the search warrant should be rejected. 16 At most, had the appellant persuaded me that the Information to Obtain was flawed in that Constable Cartier was required todisclose the police identity of the tipster in these circumstances, the proper route on review would be to expunge the portions of theInformation to Obtain which related the information known to the tipster and then to determine whether sufficient information remainedto support the warrant. … 18 … But in the final analysis, in my view, the evidence taken as a whole amply supports the search warrant.

While there could be otherexplanations for each of the observations, taken as a whole they present support for the warrant. As the trial judge noted, Mr. and Mrs.Nguyen fell "markedly short of meeting the standard as set out in Araujo and Garafoli." 19 It follows that I find no error in the ruling on the voir dire as to the admissibility of items seized during the search which wasconducted on the authority of the impugned warrant. I would dismiss the appeal. [ My italicization added]

[31] In Ontario, the state of law was set out recently in the reasons of Watt JA, in R v Paryniuk 2017 ONCA 87: 62 In this province, courts, including this court, appear to have recognized a discretion to set aside a warrant, despite the presence ofreasonable and probable grounds for its issuance, where non-disclosure was for some improper motive or to mislead the issuing judicialofficer: R. v. Colbourne (2001), (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 40.

Where an affiant has beenshown to have deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with theintention of misleading the issuing judicial officer, the warrant may be set aside. But the threshold for setting aside the warrant in thesecircumstances is high: Lahaie v. Canada (Attorney General), 2010 ONCA 516, 101 O.R. (3d) 241, leave to appeal refused, [2010]S.C.C.A. No. 371, at para. 40.

In at least one brief endorsement, this court has described the conduct necessary to engage this discretionas "so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed":R. v. Vivar, 2009 ONCA 433, at para. 2. See also R. v. Evans, 2014 MBCA 44, 306 Man.

R. (2d) 9, at paras. 17, 19. … 69 What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite thepresence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process throughdeliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like: Colbourne, at para. 40; R. v.Kesselring (2000), (ON CA), 145 C.C.C. (3d) 119, at para. 31; Lahaie, at para. 40; Vivar, at para. 2.

Courts of appealin other provinces have reached the same conclusion: Bacon, at para. 27; Evans, at paras. 17, 19; R. v. McElroy, 2009 SKCA 77, 337Sask. R. 122, leave to appeal refused, [2009] S.C.C.A. No. 281, at para. 30; Morris, at paras. 90, 92. 70 These same authorities, both in Ontario and elsewhere, describe the standard to be met to invoke this discretion as high. Indeed, somerequire that the conduct amount to an abuse of process: Vivar, at para. 2; Bacon, at para. 27. … 80 Sixth, the ultimate remedy.

The appellant's immediate goal on the Garofoli application was to set aside the warrant that yielded theevidence that formed the case for the Crown. This would provide a pathway to evidentiary exclusion which the appellant knew wouldcrater the case for the Crown.

In these circumstances, the standard "clearest of cases" may not have been inappropriate. [My italicization added] Application of the legal principles to the circumstances in the case at Bar [32] I have concluded that DC Head honestly and inadvertently omitted to refer to the fact that the first warrant had been issued andthat on the afternoon of March 29, 2019 DC Head knew that the visual and CBSA scan searches did not reveal potential evidence of Mr.Steed’s involvement in the firing of multiple gunshots at another individual on March 27, 2019. [33] I must ask myself whether DC Head omitted material factual information from the second ITO. [34] As to what are “material” errors or omissions, I referenced cases in R v Downey, 2017 NSSC 65 at paras. 8-9: 8 Moreover, in relation to what are "material" errors or omissions, the comments of Justice Blair in R. v.

Nyguyen, 2011 ONCA 465, areinstructive: 48 It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITOsupporting the request: Araujo, at para. 46; Morelli, at paras. 44, 55 and 58-60; R. v. Shayesteh (1996), (ON CA), 31O.R. (3d) 161 (C.A.), at p. 177. This duty includes the duty not to omit material facts. As LeBel J. said in Morelli, at para. 58: In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to thejustice.

When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularlycareful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to presentall material facts, favourable or not. [Italics in original.] 49 The "details" referred to in Morelli, however, were facts known to the police at the time, but not disclosed.

What is complained ofhere is a series of "omissions of fact" not addressed in the ITO, i.e., facts that were not known, or matters that were not observed by D.C.Mason, and that the respondent submits should nonetheless have been put forward and countered in the ITO. The trial judge acceptedthis submission. 50 I disagree. Although there may be circumstances in which the duty to provide full and fair disclosure will require an applicant for asearch warrant to negative something unseen or not done, I would expect such circumstances to arise infrequently. In most cases, the

absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen,not heard or not done. As Doherty J.A. observed in R. v. Colbourne (2001), (ON CA), 149 O.A.C. 132 (C.A.), at para.43: Cst. Henry described the indicia of impairment that he observed. It was implicit that he did not observe any other indicia of impairment.His failure to specifically enumerate the things he did not see does not constitute non-disclosure. 51 The obligation on applicants for a search warrant is not to commit the error of material non-disclosure.

"Materiality" is something thatbears on the merits or substance of the application rather than on its form or some other inconsequential matter: R. v. Land (1990), (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.), per Watt J., at p. 417. There is no obligation on applicants to anticipate, and toexplain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they didnot take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years afterthe event.

Here, for the most part, the impugned "omissions of fact" relied upon by the trial judge fall into the latter type of category, orthey are simply immaterial, or were not omissions at all. 9 Justice Watt, as he then was, commented in R. v. Land, (1990) (ON SC), 55 CCC (3d) 382: 3. The Second Step: Materiality a. Introduction The second step looks to the relationship between the errors and/or omissions in the supportive affidavit and the conditions precedent ofwhich adequate proof must be made to permit authorization to be given.

This requirement, shortly described as "materiality",ensures that the matter of the error and/or omission is one which bears upon the merits or substance of the application, rather than itsform or some other inconsequential matter.

It must be a matter of such significance as to be likely to influence the determination ofthe dual conditions precedent of probable cause and investigative necessity or to alter the character of the supportive affidavit.The essence of the materiality requirement, in other words, is the nexus which the applicant must demonstrate between the facts whichwere not or wrongly disclosed and the dual requirements of probable cause and investigative necessity. [My emphasis added] [35] More apropos here are the reasons in R v Booth, 2019 ONCA 970 per Paciocco JA, in relation to argued “material” knownomissions in an ITO: 56 What, then, is the frame of material information that should be included to make full and frank disclosure?

To answer that question,consider what is required to issue a "reasonable and probable grounds" search warrant. For such a search warrant to issue, the groundsfor the warrant must be adjudged not only to be probable, but reasonable to rely upon. The ITO affidavit has to disclose what Dickson J.described in Hunter et al. v. Southam Inc. as a "credibly-based probability [that] replaces suspicion": (SCC), [1984] 2S.C.R 145, at p. 167; see also R. v. Floyd, 2012 ONCJ 417, 263 C.R.R. (2d) 122, at para. 9.

As a result, the frame of material informationrequired to achieve full and frank disclosure includes all material information that: (

a) could undercut the probability that the allegedoffence has been committed; (

b) could undercut the probability that there is evidence to be found at the place of the search; and (

c) thatchallenges the reliability and credibility of the information the affiant officer relies upon to establish grounds for the warrant. 57 Where full and frank disclosure has not been made, a reviewing court will correct the warrant ITO to achieve full and frankdisclosure, and then determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosurehad been made. "What is involved is an analysis [of the corrected ITO] to determine whether there remains sufficient reliableinformation upon which the search authority could be grounded": R. v.

Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45. 58 Sometimes erroneous information in an ITO will be corrected by simply removing it. Information that should not have been includedin the warrant will always be "excised" in this way: Morelli, at para. 45. 59 Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be correctedby "amplification" so that it can be considered during the sufficiency review.

Amplification entails adding information that should havebeen disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. Whenmaterial information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITOmust be amplified to include it.

However, amplification relating to information that could advance the warrant application ispermissible only if the error in not making full and frank disclosure is: (1) a "minor, technical error"; and (2) made in "goodfaith": Araujo, at para. 59; Morelli, at para. 41. 60 Whether the omission satisfies the first of these two amplification prerequisites - the "minor technical error" requirement - depends on

the significance and nature of the error. 61 Errors that have been corrected by amplification include: mistakenly attributing observations to the wrong observer (Araujo, at para.61; R. v. Lewis, 2012 NBQB 312, 395 N.B.R. (2d) 201, at para. 24); mistaken dates and typographical errors (R. v. Crevier, 2015 ONCA619, 330 C.C.C. (3d) 305, at para. 75; Lewis, at para. 15); and erroneous but unimportant errors in the description of the source ofinformation (R. v. Plant, (SCC), [1993] 3 S.C.R. 281, at pp. 298-299; R. v. Lall, 2019 ONCA 317, 432 C.R.R. (2d) 195,at para. 39; R. v.

Van Diep, 2015 BCCA 264, 373 B.C.A.C. 230, at para. 5.) 62 In contrast, amplification was not available for errors that are too significant to qualify as "minor, technical" errors, including: thefailure to identify properly the target unit in a plaza (R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 71); the failure to includeinformation supporting the expertise of a police officer (Morelli, at para. 74); and the failure to provide evidence supporting theprovenance and reliability of a document of disputed authenticity (R. v.

Voong, 2013 BCCA 527, 304 C.C.C. (3d) 546, at para. 52.) 63 Where the erroneous information cannot be corrected because the error is not a "minor, technical" one, it is obvious that it must beexcised in its entirety. This is because the uncorrected, erroneous information simply cannot be permitted to remain in the ITO, therebyproviding an inaccurate boost to the case for reasonable and probable grounds. 64 The same is true where an officer has not acted in good faith when failing to make full and frank disclosure - the second amplificationprerequisite.

Given that amplification is confined to "good faith" error correction, it follows that by acting in bad faith, an affiant officersquanders the opportunity to have intentionally misleading information considered in its corrected form by the reviewing judge. Themisleading information cannot remain. 65 In some cases, bad faith on the part of an affiant officer can have an even more profound effect.

Where an affiant officer's failure tomake full and frank disclosure is egregious enough to "[subvert] the pre-authorization process through deliberate non-disclosure, badfaith, deliberate deception, fraudulent misrepresentation or the like", a court has the "residual discretion" to set aside the search warrant,even if there would have been reasonable and probable grounds, had there been full and frank presentation of the information: Paryniuk,at para. 69. 66 To emphasize, "amplification" is to be used to correct "minor, technical" errors caused by a good faith failure to make fulland frank disclosure.

It is not an opportunity during the search warrant review for the Crown to retroactively add informationthat it could have included in support of the warrant but failed to do so: Morelli, at para. 42. To permit this would turn theauthorization process into a sham: Araujo, at para. 59. … 92 For the sake of completeness, I will address one other amplification question relating to information presented by the affiant officerduring re-examination by Crown counsel. During that re-examination, the Crown asked the affiant officer about information he couldhave included in the residential search warrant ITO but did not.

The affiant officer responded with Mr. Booth's height; age; lengthycriminal history; the fact that he was named as an authorized driver of the rental vehicle; that the rental vehicle had dotted lightsaround the tail consistent with the drawing Ms. Zallum prepared; and that only one other Dodge Charger was found in the licenceplate series that was searched. 93 It is not evident that the trial judge considered this information in evaluating whether there were reasonable and probable grounds.

Itwould have been an error had he done so, since the warrant review is of the ITO, and it would not have been proper for the trial judge tohave included this information by way of amplification. Retroactively adding this information to bolster the ITO would make the priorauthorization process a sham. It would not be error correction - the function of amplification - but improper after-the-fact enhancement. 94 Having said this, it was not improper for the Crown to question the affiant officer about the omission of information helpful to theCrown.

This information may be relevant to the good faith of the officer, suggesting that the affiant officer was generally inattentive orcareless in drafting the ITO, rather than malicious. [My emphasis added] [36] The case at Bar involves omitted information which would arguably tend to hinder the advancement of the warrant application.

Although Justice Paciocco does not cite specific authority for the different treatments of omitted information based on whether theywould hinder or advance the warrant application, I agree with his principled suggestions, and that the information omitted may be addedhere, as I find it appropriate to add those omissions to the record I will review. What then can be said about the materiality of theomissions in the case at Bar? 1.

Do the facts of the first warrant’s issuance, and the consequent negative search results, bear any relation to the issues that theJustice of the Peace had to consider in relation to the second search warrant? [37] I conclude that they do bear relation to the issue whether the things to be searched for will be found in the car. 2.

Were they of such significance that they were capable of materially misleading the Justice of the Peace – i.e. that if added to theoriginal grounds in the ITO, is it likely they could have been influential to the determination of the Justice of the Peace whether to issuethe second warrant, insofar as her consideration of the conditions precedent thereto, namely that: “The affiant of an ITO must set outevidence under oath affirming his or her subjective belief, supported by objective criteria, that an offence has been committed (or isbeing committed), and that the things to be searched for will be found at the place specified.” (per Beveridge JA in Wallace, para. 30)? [38] If yes, then I must ask whether, if the omitted information was included, could the Justice of the Peace still have concluded thatshe had sufficient grounds to issue the second warrant?

If yes, then the warrant remains validly issued.

[39] The second ITO identified the following things are to be searched for: “firearms; ammunition; magazines.”; and asserted thatDC Head had reasonable grounds “that the said things or some part of them, are in a blue four-door Dodge Charger with a Nova Scotia(NS) license plate GED 522 of Rosalind Steed presently at 118 Cutler Dr., Dartmouth, [NS].” [40] In essence, addition of the omitted information would have informed the second Justice of the Peace that a search had beenundertaken by visual means and a CBSA scan, which had not positively identified any of the items to be searched for. [41] As noted earlier, I am satisfied that DC Head reasonably believed that a possibility remained that there was, within the body ofthe vehicle, one or more of the items searched for.

According to the evidence of DC Head, he recalled that CBSA staff advised him thatthere was an obscure area on the passenger side door which they might want to examine further; moreover DC Head reasonably believedthat without some more destructive disassembly of the vehicle there may be items hidden within the vehicle which had not yet beenobservable. [42] If that information had been included, it would not have left the Justice of the Peace with the impression that the fact thatnothing had been found to date, therefore necessarily meant nothing could be expected to be found after a more destructive disassemblyand search of the car. [43] I conclude that the omissions herein were not capable of materially misleading the second Justice of the Peace.

However, evenif I am wrong to so conclude, I cannot ignore that the second Justice of the Peace also had the benefit of the confidential informantinformation which became available in the intervening period between the first warrant and the second ITO.[15] [44] Adding that information into the mix adds strength to my conclusion that the second Justice of the Peace likely still could haveconcluded reasonable grounds existed to issue the warrant, even had she been aware of the omissions. [45] Furthermore, I am well satisfied that the circumstances here fall far short of the descriptor: “so subversive of that process thatthe resulting warrant must be set aside to protect the process and the preventive function it serves”.

Conclusion as to the R v Sismey argument [46] Mr. Steed’s assertion that the second warrant was based on materially misleading omission of information such that the warrantshould be quashed “to avoid the corruption of the judicial process which would result if deliberate efforts to mislead judicial officers inthe discharge of their judicial functions could nonetheless lead to valid judicial orders”, is without merit. [47] Consequently, in relation to that specific assertion, the presumptively valid search warrant remains so, and I find no

section 8Charter of Rights breach.[16] 2. The further sub-facial and facial challenges to the validity of the April 1, 2019 warrant [48] Given the various arguments made by Mr. Steed, it is helpful to set out the general procedural context in such cases.[17] [49] Generally speaking, there is a six-step process to be followed when information from confidential informants is relied upon inan ITO an authorization for a search (wiretap, warrant etc.).

These were initially set out as a non-exclusive and non-exhaustive list byJustice Sopinka speaking for the court in R v Garofoli, (SCC), [1990] 2 SCR 1421. [50] At issue on the appeal were 12 points: Points in Issue 30 The appellant lists twelve points in issue but they may be summarized as follows: 1. What is the entitlement of an accused person to the sealed packet? 2. Upon what grounds may an accused challenge an authorization for wiretap and before what court? 3. What remedy is appropriate? 4. What special requirements apply when information from informants is relied on to obtain an authorization? 5.

What principles and procedures apply to the editing of the contents of the sealed packet? 6. Is the accused entitled to cross-examination on the affidavit filed with the authorizing judge?

7. Did the failure of the authorizing judge to include a minimization clause result in the authorization of an unreasonable search andseizure in violation of s. 8 of the Charter? 8. Did the accused abscond? 9. Did the trial judge properly caution the jury with respect to the evidence of accomplices? Points 2, 3 and 4 all relate to the sufficiency of the affidavits in satisfying the prerequisites to a valid authorization. 1.What is the entitlement of an accused person to the sealed packet? 31 The trial judge refused to order access based on the restricted access cases.

For the reasons that I gave in Dersch, those cases nolonger apply in view of ss. 7 and 8 of the Charter. The accused is entitled to have the packet opened and, subject to editing, to have itscontents produced in order to enable him or her to make full answer and defence. The Court of Appeal was, therefore, right in openingthe sealed packets. … 2. Upon what grounds may an accused challenge an authorization for wiretap and before what court? … 36 The result is that the statutory requirements of s. 178.13(1)(

a) are identical to the constitutional requirements. An authorizing judgemust, therefore, be satisfied on the basis of the affidavit evidence that these conditions have been met. … Challenging the Authorization 37 The current state of the law with respect to testing the admissibility of wiretap evidence is a procedural quagmire. The variousprocedures that are available have come to be known by the names of the cases that initiated them. 38 First there is a "Parsons voir dire," named after R. v. Parsons (1977), (ON CA), 37 C.C.C. (2d) 497 (Ont. C.A.), aff'd (SCC), [1980] 1 S.C.R. 785, sub nom. Charette v.

The Queen. The function of this hearing before the trial judge is todetermine such issues as whether the authorization is valid on its face, whether the police executed the interception within the terms ofthe authorization, and whether statutory requirements such as reasonable notice were complied with. The remedy is exclusion under s.178.16. The second is the "Wilson application". This hearing takes place before the issuing court, to determine the substantive orsubfacial validity of the affidavit. The remedy is the setting aside of the authorization. The third is a "Garofoli hearing".

This is a hearingbefore the trial judge to determine the compliance of the authorization with s. 8 of the Charter. The remedy is a determination under s.24(2) of the Charter. The fourth, and last, procedure is a "Vanweenan hearing", so-called after one of the appellants in R. v. Chesson, (SCC), [1988] 2 S.C.R. 148. This again is a voir dire before the trial judge, but with the object of determining whetherthe authorization names all "known" persons as required by ss. 178.12(1)(

e) and 178.13(2)(c). The remedy again is exclusion under s.178.16. 39 Consolidation of the Parsons, Garofoli and Vanweenan hearings presents no difficulty, and is in keeping with the view of this Courtthat all matters that relate to the conduct of the trial should be dealt with by the trial judge. A more difficult question arises with respectto the Wilson and Garofoli applications. It would be highly desirable if they could be dealt with by the trial judge so that all aspects ofthe admissibility of evidence obtained pursuant to an authorization could be dealt with at one time and at trial.

Whether this can be donerequires an examination of this Court's judgment in Wilson v. The Queen, supra, and the effects of s. 8 of the Charter on its application.

… 51 The language of s. 178.14 (now s. 187) will continue to require an application to open before a judge referred to therein. In somecases, this will not be the trial judge. I have referred in Dersch to the desirability of a legislative amendment to enable the trial judge toorder the opening of the packet. … Grounds for Review 52 In R. v. Collins, (SCC), [1987] 1 S.C.R. 265, Lamer J. (as he then was) set out the basic test for determining thereasonableness of a search under s. 8 of the Charter.

He stated, at p. 278: A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried outis reasonable. … 55 While a judge exercising this relatively new power need not comply with the Wilson criteria, he should not review the authorizationde novo. The correct approach is set out in the reasons of Martin J.A. in this appeal.

He states, at p. 119: If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied thatthe pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search orseizure contravened s. 8 of the Charter. 56 The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. 3.What remedy is appropriate? … 60 In the result, a finding that the interception is unlawful attracts the peremptory language of s. 178.16 and the evidence is inadmissible.Section 24(2) cannot have the effect of making the evidence admissible even if to do so would not bring the administration of justice intodisrepute.

Section 24(2) is an exclusionary and not an inclusionary rule. It operates to exclude evidence that would otherwise beadmissible where to admit the evidence would bring the administration of justice into disrepute. Evidence that is inadmissible by reasonof some other exclusionary rule cannot be admitted by invoking s. 24(2).

Accordingly, an accused who has invoked the jurisdiction of s.24 and who establishes as part of the necessary operation of Charter review that an interception was unlawfully obtained is entitled to thebenefit of the provisions of s. 178.16 to have the evidence excluded. 4.What special requirements apply when information from informants is relied on to obtain an authorization? 61 The appellant submitted that in order to establish reasonable and probable grounds to justify a search, a detailed set of requirementswas necessary in respect of the use of informants' information.

He contends that in coming to the conclusion that the affidavits in thiscase were sufficient, the Court of Appeal must have applied the "totality of the circumstances" test set out in Illinois v. Gates, 462 U.S.213 (1983).

The pertinent passage from that judgment reads as follows, at p. 238: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth inthe affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fairprobability that contraband or evidence of a crime will be found in a particular place.

62 The general requirement with which the authorizing judge must comply has already been referred to in these reasons. He or she mustbe satisfied that the statutory conditions have been established. The reviewing judge should not set aside this decision unless he or she issatisfied on the whole of the material presented that there was no basis for the authorization. While this is the general instruction thateach judge should apply, special problems arise with respect to the use of information of informants.

It is therefore desirable to examinewhat special requirements, if any, should be developed to enable judges to apply the general instruction in a way that strikes a justbalance between the needs of law enforcement and the protection of the rights of privacy. 63 This issue has been addressed by this Court in connection with the use of informant information to support a warrantless search. … 68 Although Greffe concerns admissibility under s. 24(2), in my opinion the discussion has a bearing on the sort of information that mustbe put before a judge issuing an authorization for electronic surveillance.

I see no difference between evidence of reliability of aninformant tendered to establish reasonable and probable grounds to justify a warrantless search (the issue in the cases cited by Lamer J.)and evidence of reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization. Moreover, Iconclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe.

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence ofa tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as towhat this entails.

Rather, the court must look to a variety of factors including: (a)the degree of detail of the "tip"; (b)the informer's source of knowledge; (c)indicia of the informer's reliability such as past performance or confirmation from other investigative sources. iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. … 5.What principles and procedures apply to the editing of the contents of the sealed packet? 70 The appellant does not take issue with the exercise by the Court of Appeal of the power to edit the affidavit in order to preserve theidentity of informants.

His principal submission is that the appellant should be provided with judicially approved summaries of the editedwords and phrases. 71 The power to edit clearly exists and derives from the supervisory and protecting power which a court possesses over its own records:Attorney General of Nova Scotia v.

MacIntyre, (SCC), [1982] 1 S.C.R. 175, at p. 189. 72 In determining the procedure to be followed in editing the materials in the packet, regard must be had for the competing interests oflaw enforcement, and in particular the protection of the identity of informers and investigative techniques, on the one hand and the rightof the accused to make full answer and defence on the other. The following observations of Dickson J. in MacIntyre, supra, at pp. 180and 184, are apt:

As is often the case in a free society there are at work two conflicting public interests. The one has to do with civil liberties and theprotection of the individual from interference with the enjoyment of his property. There is a clear and important social value in avoidanceof arbitrary searches and unlawful seizures. The other, competing, interest lies in the effective detection and proof of crime and theprompt apprehension and conviction of offenders. Public protection, afforded by efficient and effective law enforcement, is enhancedthrough the proper use of search warrants. . . .

In short, what should be sought is maximum accountability and accessibility but not to the extent of harming the innocent or of impairingthe efficiency of the search warrant as a weapon in society's never-ending fight against crime. 73 Judicial editing appears to be the rule in every province except British Columbia… Editing, therefore, is essential in cases in whichconfidential information is included in the affidavit filed in support of an authorization. In determining what to edit, the judge will haveregard for the rule against disclosure of police informants.

The most recent expression of the rule by this Court is in the case of Bisaillonv. Keable, (SCC), [1983] 2 S.C.R. 60. Beetz J. stated, at p. 93: It follows from these reasons that at common law the secrecy rule regarding police informers' identity has chiefly taken the form of rulesof evidence based on the public interest, which prohibit judicial disclosure of police informers' identity by peace officers who havelearned the informers' identity in the course of their duties. A witness also may not be compelled to state whether he is himself a policeinformer.

The rule was developed in criminal proceedings, apparently in trials for high treason, but it also applies in civil matters, and inboth cases, it has been established for reasons which relate to the essential effectiveness of the criminal law. The rule is subject to onlyone exception, imposed by the need to demonstrate the innocence of an accused person. There are no exceptions in proceedings otherthan criminal. Its application does not depend on the judge's discretion, as it is a legal rule of public order by which the judge is bound. 74 The identity of informers is generally not relevant.

When a trial judge is engaged in the editing process, he or she must consider the"innocence at stake" exception. In Re Rideout and The Queen (1986), (NL SC), 31 C.C.C. (3d) 211 (Nfld.

S.C.),Goodridge J. took the following view of the exception, at p. 220: The rule against the identification of police informants is only made possible because, in almost every case, it will not be relevant ....Where it is relevant, it will be admitted for that was the one exception mentioned by Beetz J. in the passage set forth above -- thesituation where disclosure was needed to demonstrate the innocence of an accused person. … 78 The question remains as to the extent of editing and the procedure to be followed.

Since there will be more than one method ofstriking a proper balance between the interests of law enforcement and of the right to make full answer and defence, I would not wish toplace trial judges in a "strait-jacket" by laying down iron-clad rules with respect to editing. In deciding what to edit, the f

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