R. v. Parsley, 2016 NLCA 51

Her Majesty the Queen (appellant) v. Stephen Paul Parsley (respondent) (15/39) Indexed As: R. v. Parsley 2016 NLCA 51 1 C.A.N.L.R. 84 Court of Appeal of Newfoundland and Labrador Rowe, Harrington and Hoegg JJ.A. October 3, 2016

Summary: Stephen Paul Parsley was charged with possession and trafficking of cocaine and marijuana and possession of ecstacy. He challenged the validity of the search warrant relied upon by the police to search his residence, arguing that the grounds set out in the Information to Obtain (ITO) it were insufficient. The Judge agreed, ruling that the evidence from the search would be excluded from trial under section 24(2) of the Charter due to a breach of Mr. Parsley’s

section 8 Charter right to be free from unreasonable search and seizure. Mr. Parsley was acquitted. The Crown appealed, arguing the judge erred in finding a breach of s. 8 and, in the alternative, erred in excluding the evidence under s. 24(2). Held: Appeal allowed, matter remitted to Provincial Court for trial (Rowe J.A. concurring). Hoegg J.A. (Harrington J.A. concurring): Search and seizure of evidence pursuant to an invalid or illegally obtained warrant amounts to a violation of an accused’s

section 8 Charter right. A warrant is invalid if determined, on review, to have been issued on insufficient grounds. The reasonable grounds standard applies to determining whether the grounds set out in an ITO are sufficient to issue a search warrant. That standard composes both a subjective prong and an objective prong. Proper application of the review question requires the reviewing Judge to ask whether there was any basis upon which the authorizing justice could have issued the warrant, not whether he or she would have done so.

In applying the standard, the reviewing judge must consider the totality of the circumstances set out in the ITO. When the grounds in an ITO include or are substantially based on confidential source information, there are at least three concerns to be addressed. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a ‘tip’ originating from a source outside the police, was the source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?

Although more than a bald tip is required, reasonable and probable grounds can be established on the basis of information from an informer. A framework for assessing the reliability of the tip includes the following considerations: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a 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 to what this entails. Rather, the court should look to a variety of factors including: (

a) the degree of detail of the ‘tip’; (

b) the informer’s source of knowledge; and (

c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources; and (iii) The results of the search cannot, ex post facto , provide evidence of reliability of the information. There is no legal requirement that confidential source information be independently corroborated in whole or in part. The Judge committed several errors in evaluating the sufficiency of the grounds set out in the ITO.

He erred (1) in his assessment of both Source A’s and Source B’s reliability, and in focusing on the inconsequential differences between the information provided by them; (2) by focusing on what the police were unable to corroborate as opposed to what they were able to corroborate and by concentrating on information that he thought ought to have been included in the ITO; (3) in his determination that some of the evidence in the ITO was irrelevant when it was not; and (4) in focusing on the extraneous information in the ITO rather than on the information that was in the ITO that could support its issuance.

Even after excising the extraneous information, there is sufficient detailed information on which the search warrant was lawfully issued.There was no breach of Mr. Parsley’s

section 8 Charter right. In these circumstances, there is no need to determine the section 24(2)issue. Rowe J.A. concurring: The reasons of Hoegg J.A. are agreed with. The trial judge in reviewing the ITO substituted his view for that ofthe issuing judge; that is not his role. It is, rather, to determine whether there was a proper basis on which the issuing judge could haveauthorized the search warrant. The trial judge erred in law. There was sufficient information to issue the search warrant. Cases cited: Hoegg J.A.: R. v. Grant, (SCC), [1993] 3 S.C.R. 223, 84 C.C.C. (3d) 173 R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421 R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.) R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 R. v. Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992 R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 R. v. Whalen, 2015 NLCA 7, 363 Nfld. & P.E.I.R. 289 R. v. Al-Amiri, 2015 NLCA 37, 368 Nfld. & P.E.I.R. 146 R. v. Saunders, 2003 NLCA 63, 232 Nfld. & P.E.I.R. 22 R. v. Day, 2014 NLCA 14, 349 Nlfd. & P.E.I.R. 1, aff’d 2014 SCC 74, [2014] 3 S.C.R. 614 R. v. Burke, 2011 NBCA 51 R. v. Lewis (1998), 38 O.R. (3d) 54 (C.A.) R. v.

Beauregard (1999), (QC CA), 136 C.C.C. (3d) 80 (Que. C.A.) Rowe J.A. (concurring):R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 Counsel: Paul Adams, for the appellant; Rosellen Sullivan, for the respondent. This appeal was heard on June 13, 2016 before Rowe, Harrington and Hoegg JJ.A. The following judgment was delivered on October 3, 2016 by Hoegg J.A., concurred in by Harrington J.A., with separate concurringreasons by Rowe J.A. ______________________________________________________________ Hoegg J.A.:

INTRODUCTION [1] Stephen Paul Parsley was charged with possession and trafficking of cocaine and marijuana and possession of ecstacy followinga search conducted pursuant to a warrant issued by a provincial court judge. At trial, Mr. Parsley challenged the validity of the warrantarguing that the grounds set out in the Information to Obtain (ITO) it were insufficient. The Judge agreed, saying he found that theInformation to Obtain the search warrant did not meet the threshold requirement of “credibly based probability” and “should not havebeen issued”. [2] He ruled that the evidence from the search would be excluded from trial under section 24(2) of the Charter due to a breach ofMr. Parsley’s

section 8 Charter right to be free from unreasonable search and seizure. The ruling gutted the Crown’s case and resultedin Mr. Parsley’s acquittal. THE APPEAL [3] The Crown argues that the reviewing Judge erred in finding that Mr. Parsley’s

section 8 right was breached. They say that theITO contained sufficient reliable information to justify issuance of the warrant, and maintain that the Judge failed to apply the correctstandard and took a piecemeal approach to the evidence in the ITO rather than considering the totality of the circumstances. [4] The Crown also argues that the Judge erred by excluding from trial the evidence obtained in the search under section 24(2) ofthe Charter. They maintain that he failed to properly consider and apply the section 24(2) factors set out in R. v.

Grant, (SCC), [1993] 3 S.C.R. 223, 84 C.C.C. (3d) 173 and also that he made unreasonable findings in respect of those factors. In particular,the Crown argues that (1) the Judge was wrong to find that the state infringing conduct was serious because the police acted in goodfaith and pursuant to judicial authority and there was nothing egregious about the search; (2) that the Judge erred in finding that Mr.Parsley had a “very high expectation of privacy as this was a private residence” because Mr.

Parsley could not have had an expectation ofprivacy in the search of a residence in which he did not live and in any event had no significant privacy interest in the outbuildings on theproperty; and (3) that the Judge failed to consider that the quantity of drugs seized was reliable evidence going to the seriousness of theoffences and critical to the Crown’s case when assessing society’s interest in adjudication of the charges on their merits. [5] Mr.

Parsley argues that the Judge made no error because the information in the ITO lacked “compellability” and that it did notmeet the required standard for issuance. (“Compellability” is a legal term relating to whether the law requires a person to testify ifsubpoenaed to do so. I assume Mr. Parsley means to argue that the information in the ITO was not compelling in that it was notsufficiently detailed.) Mr. Parsley maintains that the Judge properly considered the Grant factors in excluding the evidence undersection 24(2).

In particular, he argues that the Judge correctly found that the police search of the property was not justified after theywere told that Mr. Parsley did not live there, and also that the search of the private dwelling involved a high expectation of privacyregardless of whether he lived there, because to find otherwise would offend the purposive approach to Charter

interpretation. Mr.Parsley maintains that the Judge was well aware of the seriousness of the charges, but in balancing the factors made a discretionarydecision to exclude the evidence that should not be interfered with. ISSUES [6] Broadly stated, this appeal raises two issues: 1. Whether the Judge erred in finding that Mr. Parsley’s

section 8 Charter right was breached as a result of a search conductedpursuant to an invalid warrant, and 2. Whether the Judge erred by excluding from trial the evidence obtained in the search. THE LAW [7]

Section 8 of the Charter reads: Everyone has the right to be secure against unreasonable search or seizure. [8] Search and seizure of evidence pursuant to an invalid or illegally obtained warrant amounts to a violation of an accused’s section8 Charter right. A warrant is invalid if determined, on review, to have been issued on insufficient grounds (R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at 1452). [9] Section 11(1) of the Controlled Drugs and Substances Act (CDSA) sets out the circumstances in which a judge is authorized toissue a warrant to search and seize property: 11

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to acontravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlledsubstance, precursor, property or thing and to seize it. [10] The reasonable grounds standard set out in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316

applies to determining whether the grounds set out in an ITO are sufficient to issue a search warrant. That standard composes both asubjective prong and an objective prong. In practice, that means that the officer swearing the ITO must have a subjective belief that onthe basis of the stated grounds, the search requested will yield evidence respecting the commission of an offence and also that objectiveassessment of the grounds justifies issuance of the warrant.

The test is the same for determining grounds for arrest, although theobjective component has been applied in a less exacting manner in reviewing grounds for arrest than in reviewing the issuance of an ITO(R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.) at 750). [11] The objective prong of the test has been described in various ways by the Supreme Court. In R. v. Debot, (SCC),[1989] 2 S.C.R. 1140, Justice Wilson described it as “reasonable probability” rather than “proof beyond a reasonable doubt” or “primafacie case”. In R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 the Supreme Court described it as “some evidence that might reasonablybe believed on the basis of which the authorization could have issued” (paragraph 51). In Garofoli, Sopinka J. was of similar mind, andsaid that the reviewing judge determines there was “no basis for the issuance of the warrant, he or she should not interfere” (pages 1452and 1454). In R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, the Court stated the review question as “whether there was sufficientcredible and reliable evidence” to permit a finding of reasonable and probable grounds to issue the warrant (paragraph 40). This Court, inR. v. Whalen, 2015 NLCA 7, 363 Nfld. & P.E.I.R., stated the review question as “whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could issue” (paragraph 23). (See also R. v.

Al-Amiri, 2015 NLCA 37,368 Nfld. & P.E.I.R. 146.) [12] In Morelli, the Court stated that proper application of the review question requires the reviewing Judge to ask whether there wasany basis upon which the authorizing justice could have issued the warrant, not whether he or she would have done so (paragraph 40). [13] In applying the standard, the reviewing judge must consider “the totality of the circumstances” set out in the ITO, and approachthe task from a “holistic perspective rather than a microscopic perspective” which deconstructs the ITO and inspects each piece ofinformation in it (Garofoli, page 1454). (See also R. v.

Saunders, 2003 NLCA 63, 232 Nfld. & P.E.I.R. 22, paras 5, 8-11). [14] When the grounds in an ITO include or are substantially based on confidential source information, additional considerationsapply. In Debot, where the Court considered the legality of a warrantless search conducted principally on the basis of confidential sourceinformation, Wilson J. identified three factors for consideration: … there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, wasthe information predicting the commission of a criminal offence compelling?

Secondly, where that information was based on a ‘tip’originating from a source outside the police, was the source credible? Finally, was the information corroborated by police investigationprior to making the decision to conduct the search? (Page 1166.) She emphasized that a reviewing Court must consider the “totality of the circumstances”, saying: I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of thecircumstances” must meet the standard of reasonableness.

Weakness in one area may, to some extent, be compensated by strengths inthe other two. [15] In Garofoli, the court was considering the legality of a search warrant where the grounds in the ITO were based on confidentialsource information. The Court left no doubt that although more than a bald tip is required, reasonable and probable grounds can beestablished on the basis of information from an informer, and set out a framework for assessing the reliability of the tip, essentiallyrefining the three factors identified in Debot: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tipfrom 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 to what thisentails. Rather, the court should 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. (Pages 1456-1457.) (See also R. v. Day, 2014 NLCA 14, 349 Nlfd. & P.E.I.R. 1, paras. 34-36 aff’d 2014 SCC 74, [2014] 3 S.C.R. 614.) [16] The Garofoli court confirmed that it is the totality of the circumstances that must be assessed. In this regard, see R. v.

Burke,2011 NBCA 51 where the appellate court emphasized the need for flexibility in considering the factors and cautioned against elevatingone factor to the status of an essential prerequisite to the existence of reasonable grounds when considering the “totality of thecircumstances”. (See also, R. v. Lewis (1998), 38 O.R. (3d) 54 (C.A.), at para. 22 per Doherty J.A.) [17] As well, it is worth restating that there is no legal requirement that confidential source information be independentlycorroborated in whole or in part.

Where the informant is a confidential source of “known identity” and “proven reliability”, the need forindependent corroboration of the information is less important and not required as a rule of law (R. v. Al-Amiri, 2015 NLCA 37, 368Nfld. & PE.I.R. 146 and R. v. Beauregard (1999), (QC CA), 136 C.C.C. (3d) 80 (Que. C.A.) at 82-83).

[ 18 ] The above principles were those applied by this Court in Al-Amiri , Day , and Whalen . ANALYSIS Did the Judge err in determining that the grounds in the Information to Obtain did not meet the threshold of credibly-based probability required for issuance of the search warrant? [ 19 ] The swearing officer’s subjective belief was not an issue in this case.

Rather, the issue is whether, on objective assessment, there was sufficient credible and reliable evidence set out in the ITO to enable the Judge to issue the warrant ( Morelli and Whalen ). [ 20 ] The grounds set out in the ITO are based primarily on information provided by two informers – Source A and Source B. Sources A and B provided confidential information to their respective police handlers independent of each other. Source A informed Cst. Pilgrim that Mr. Parsley was trafficking drugs on April 28 and May 1, 2014, and Source B provided Cst. Wheaton with similar information about Mr.

Parsley on April 30, 2014. The information from Source A can be summarized as follows: April 28, 2014: - Snips’ real name is Stephen Parsley of Mundy Pond area; - Snips has two garages one he does coke deals out of and the other has two cars one of which is a corvette that is brown or copper where he hides cash; - Snips has a large amount of coke in his garage; - Snips is moving a lot of weight with [a named individual]; - Snips’ coke can be cut three times. - “SNIPS” has cameras in his house that send footage to his cell phone and he uses his cell phone to arrange drug deals.

May 1, 2014: - Stephen Parsley AKA “Snips” has a lot of good quality coke; - Stephen Parsley lives at 509 Empire Avenue; - Stephen Parsley has weed in his garage; and - Stephen Parsley keeps the cash from his drug sales in his house. The summarized information from Source B, provided to Cst. Wheaton on April 30, 2014 was: - Steve Parsley, “Snips”, lives on Empire Avenue in the second house in from Columbus Drive. He is really big into cocaine and always has it on hand. He keeps it in his shed and also uses his uncle’s shed next door.

He deals in kilos but will sell in ounces; and - He sells mostly cocaine and weed. [ 21 ] The police took steps to independently corroborate the informer information. On April 30, 2014 the affiant, Cst. Lush, determined through Police Reporting Occurrence System that during a driving check in New Brunswick on March 16, 2013, Stephen Parsley of 509 Empire Avenue, St. John’s, Newfoundland and Labrador had been searched and found in possession of marihuana.

He was consequently charged, but the charge was withdrawn by the Crown because the search took place “prior to a lawful arrest”. [ 22 ] Also on April 30, 2014 Cpl. Pilgrim and the affiant conducted a patrol of 509 Empire Avenue, St. John’s, NL. They noted that the home was blue with a black door, that the number 509 was affixed to the left of the door, that 509 Empire Avenue was the second house on the left just in from the intersection of Empire Avenue with Columbus Drive and that there were at least two outbuildings at its rear, and that there was security system signage in the window of the house.

The affiant determined that the house was registered to Paul and Yvonne Parsley. Sufficiency of Grounds Degree of Detail [ 23 ] In this case there were two informers, Source A and Source B. Source A’s information was provided on two dates just prior to the execution of the warrant. Source A identified the accused by name and by nickname, and reported that Mr. Parsley had cocaine and marihuana in garages at the rear of 509 Empire Avenue. He or she described the quantity of cocaine as “a large amount” and “a lot” and its quality as “can be cut three times” and “good”. Source A also indicated that Mr.

Parsley had a security system which enabled him to monitor the property and arrange deals from his cell phone. [ 24 ] Source B provided information on April 30, 2014. He or she also identified Mr. Parsley by name and nickname, and advised that he had cocaine and weed stored in a shed behind his house on Empire Avenue which was the second one in from Columbus Drive. Source B also said that the first house on Empire in from Columbus Drive was owned by a relative of Mr. Parsley who permitted the accused to store drugs in a shed on that property. Both sources told their handlers that Mr.

Parsley was associating with certain named individuals. [ 25 ] Previous informer information, given to police by Source B in 2013, was also reviewed. It related that Source B had told his

handler that drugs seized in a search in 2013 belonged to Snips and another named individual. Reliability of Sources A & B [ 26 ] Mr. Parsley did not challenge the reliability of the informers or their information at trial or on appeal. Nevertheless, the Judge commented in his decision on their reliability, saying that the word “reliable” had not been used to describe either informer in the ITO. The Judge focused on the fact that Source A had given information to his handler on numerous occasions, but that the majority of it had not been acted on and only some of it resulted in successful searches.

The Judge also noted that Source B had provided information on 85 occasions but that only two positive and one negative search (which was explained) resulted. The Judge also commented that the ITO stated that both informers’ sources of knowledge rested on personal conversations and observations in “boiler plate language”. [ 27 ] The indicia of reliability of Sources A and B was set out in the ITO. In

summary, both sources were believed to be highly credible and to have provided reliable information on which successful police investigations and prosecutions had been based over significant periods of time (see paragraphs 3.1(

k) and (

m) and 3.2(

i) of the ITO). The ITO also set out the history of both sources’ proven reliability with respect to information provided to their respective handler/s over the years. Accordingly, the Judge’s statements at paragraph 16, including that the word “reliable” was not used in the ITO, are incorrect for the ITO clearly speaks to the reliability of Sources A and B. [ 28 ] The Judge’s focus on the fact that the information resulted in only a few arrests belies a misunderstanding of how informer information is used.

While a “successful” arrest or prosecution can be evidence of reliability, it does not follow that because there was no “successful arrest or prosecution” the information is unreliable. Many factors go into a police decision to seek a search warrant or to arrest someone, and because they do not choose to do so every time they are provided with information does not mean the information is not reliable ( See Whalen , paragraph 38 ). [ 29 ] The Judge also focused on the fact that the ITO disclosed Mr.

Parsley’s associations with four named individuals about whom no further information was provided, concluding that this information could not support the issuance of the ITO. I agree with the Judge in this respect. Without explaining how and why associations with the named individuals were meaningful to the grounds in support of the warrant, this information is not information that can support its issuance. However, the fact that meaningless information was included in the ITO does not render the ITO invalid.

As Morelli instructs at paragraphs 40-42 , the issue is whether sufficient reliable information remains after the irrelevant information is excised or disregarded. [ 30 ] The Judge also noted that the issuing judge could not have relied on the information relating to the traffic stop incident in New Brunswick in 2013. The information, such as it was, could connect Stephen Parsley of 509 Empire Avenue in St. John’s to an illegal drug – one of the same drugs involved in this matter. While this information was dated and of slight weight, it is not irrelevant.

In the absence of a judicial determination that the evidence was obtained in breach of Mr. Parsley’s Charter rights, it was not open to the Judge to exclude this information from consideration. [ 31 ] The Judge also noted that the information in the ITO referencing the marihuana seized in 2013 as being that of either Snips or a named individual could not be relied on to support issuance of the ITO. Again, this information is of slight value because it is dated. However, it is not irrelevant for it could implicate Mr.

Parsley in drug dealing. [ 32 ] The Judge also focused on the differences between the information from Source A and that from Source B, saying that the variances in description of the property at 509 Empire “make it impossible to conclude that there were drugs on the accused’s property”. With respect, I cannot agree with this conclusion. The information provided by the two independent informants was not contradictory. Describing the location of the drugs in a shed as opposed to a garage or an outbuilding is not, in the context of this case, a meaningful difference.

Neither does information from Source A that “Snips has a large amount of coke in his garage” and “Snips has a lot of good quality coke” contradict information from Source B that Snips is “really big into cocaine” and “always got it on hand” in the context of this case. [ 33 ] The Judge’s focus on finding differences in the ways that Sources A and B described information is not the task of a reviewing Judge. Minor differences in descriptions are to be expected when information comes from different people. In fact, such minor differences may enhance the credibility of the information.

Two people seldom use the same words to describe the same event. By focusing on minor differences in descriptions and the inclusion of extraneous information, the Judge failed to take a holistic approach to the totality of the circumstances. His microscopic approach diverted him from considering the considerable remaining and detailed information in the totality of the circumstances. Moreover, and very significantly, two confidential informants provided similar information to their handlers independently of each other and within a day of each other.

The Judge failed to consider this fact in his analysis, and his failure to do so was an error. [ 34 ] In conclusion, the Judge committed several errors in evaluating the sufficiency of the grounds set out in the ITO.

He erred (1) in his assessment of both Source A’s and Source B’s reliability, and in focusing on the inconsequential differences between the information provided by them; (2) by focusing on what the police were unable to corroborate as opposed to what they were able to corroborate and by concentrating on information that he thought ought to have been included in the ITO; (3) in his determination that some of the evidence in the ITO was irrelevant when it was not; and (4) in focusing on the extraneous information in the ITO rather than on the information that was in the ITO that could support its issuance. [ 35 ] In the result, after excising the extraneous information, there is sufficient detailed information provided by two reliable informers independently of each other and some other information in the ITO on which the search warrant was lawfully issued. [ 36 ] Given that the grounds set out in the ITO were sufficient for its issuance and there was no breach of Mr.

Parsley’s

section 8 Charter right to be free of unreasonable search and seizure, there is no basis on which to exclude the evidence obtained as a result of the search. In these circumstances, there is no need to determine the section 24(2) issue. Disposition

[ 37 ] I would allow the Crown’s appeal, set aside the acquittal, and remit the matter to Provincial Court for trial. Separate Concurring Reasons by Rowe J.A. Rowe J.A.: [ 38 ] I am in agreement with my sister Hoegg in the result and, generally, in her line of reasoning. That said, I would put matters in a more simple way. The trial judge in reviewing the ITO substituted his view for that of the issuing judge; that is not his role. It is, rather, to determine whether there was a proper basis on which the issuing judge could have authorized the search warrant. See Garofoli , supra , p. 1452.

Thus, the trial judge erred in law and I would set aside his decision. [ 39 ] It, therefore, falls to this Court to apply the proper test in reviewing the issuing judge’s decision to authorize the search warrant. I would agree with Justice Hoegg that the information provided by the informants constituted a proper basis on which the issuing judge could have authorized the search warrant.

In so saying I place no reliance on the 2013 arrest in New Brunswick; I question the propriety of the police including this in the ITO. [ 40 ] I would allow the appeal, set aside the acquittal and refer the matter back for a new trial. Appeal allowed, Rowe J.A. concurring .