The exclusion of the digital video recorder search based on the Police’s failure to make full and frank disclosure in the Information to Obtain the Search Warrant, resulting in an acquittal entered by the Court of the Appeal as it was not in the interests of Justice (Regina v. Booth)

Published On: Dec 21,2019

The exclusion of the digital video recorder search based on the Police’s failure to make full and frank disclosure in the Information to Obtain the Search Warrant, resulting in an acquittal entered by the Court of the Appeal as it was not in the interests of Justice
The exclusion of the digital video recorder search based on the Police’s failure to make full and frank disclosure in the Information to Obtain the Search Warrant, resulting in an acquittal entered by the Court of the Appeal as it was not in the interests of Justice

A recent decision of the Ontario Court of Appeal overturns a decision stemming from an application to exclude evidence due to the insufficiently grounded search warrant and the information to obtain the same.  The Honourable Justice Paciocco in Regina v. Booth, 2019 ONCA 98 set aside nine (9) convictions that flowed from an robbery of a salon with a firearm.  Those offences were:  “use of a restricted and prohibited weapon in committing robbery, robbery simpliciter, use of an imitation firearm while committing robbery, possession of a loaded restricted or prohibited firearm without authorization, possession of a loaded restricted or prohibited firearm without a license, wounding with a firearm, aggravated assault, unlawful confinement, and assault.” One of the owners of the salon was shot in the abdomen.  The other was forced to the floor and bound with zip-ties. Money and goods were taken. At the accused’s trial, the only contested issue was his identity as the taller of the two robbers, the man who had possessed and fired the firearm.


Justice Paciocco J.A made the following material findings.   The Police secured a warrant to search the home security videos that were seized during the first search.  This included the “digital video recorder search”.  Those searches were conduct by the Police and two (2) accused persons were charged.  Severance of the accused was ordered at or before the Jury trial.  The critical factual issue at trial was the identity of the accused as the taller of the two robbers, the man who had possessed and fired the firearm.  The jury convicted him of the aforesaid offences.


At appeal, the accused challenged the decisions rendered by the trial judge relative to his application under the Canadian Charter of Rights and Freedoms (the “Charter”) citing, among other things, the lack of grounds to secure the warrant, at first instance.   An execellent exposition of the law is provided by Justice Paciocco, J.A: governing the applicable law in that jurisdiction that should be current to the time of writing (December 20, 2019).


Obviously, it is imperative that issuing judges or justices have an accurate understanding of the material, known facts available to the affiant officer. If the ITO contains erroneous, incomplete, or dishonest information relating to known information, an issuing judge or justice could be misled, and provide an authorization that should not have been provided. To ensure accuracy, anyone seeking an ex parte authorization, such as a search warrant, is required to make full and frank disclosure of material facts: R. v. Araujo2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992, at para. 46. This is because an ex parte warrant application is not adversarial. As a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspectives of both sides.


[55]        Therefore, a search warrant ITO should never try to trick its readers, or offer misleadingly incomplete recitations of known facts, and the affiant officer must not “pick and choose” among the relevant facts in order to achieve a desired outcome: Araujo, at para. 47R. v. Morelli2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253, at para. 58. Nor should the affiant officer invite inferences that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed: Morelli, at para. 58.


[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 grounds for 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”: 1984 CanLII 33 (SCC), [1984] 2 S.C.R 145, at p. 167; see also R. v. Floyd2012 ONCJ 417 (CanLII), 263 C.R.R. (2d) 122, at para. 9. As a result, the frame of material information required to achieve full and frank disclosure includes all material information that: (a) could undercut the probability that the alleged offence has been committed; (b) could undercut the probability that there is evidence to be found at the place of the search; and (c) that challenges 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 frank disclosure, and then determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made. “What is involved is an analysis [of the corrected ITO] to determine whether there remains sufficient reliable information upon which the search authority could be grounded”: R. v. Paryniuk2017 ONCA 87 (CanLII), 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 included in 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 corrected by “amplification” so that it can be considered during the sufficiency review. Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (1) a “minor, technical error”; and (2) made in “good faith”: Araujo, at para. 59Morelli, 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. 61R. v. Lewis, 2012 NBQB 312 (CanLII), 395 N.B.R. (2d) 201, at para. 24); mistaken dates and typographical errors (R. v. Crevier2015 ONCA 619 (CanLII), 330 C.C.C. (3d) 305, at para. 75Lewis, at para. 15); and erroneous but unimportant errors in the description of the source of information (R. v. Plant1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at pp. 298-299; R. v. Lall2019 ONCA 317 (CanLII), 432 C.R.R. (2d) 195, at para. 39R. v. Van Diep2015 BCCA 264 (CanLII), 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: the failure to identify properly the target unit in a plaza (R. v. Ting2016 ONCA 57 (CanLII), 333 C.C.C. (3d) 516, at para. 71); the failure to include information supporting the expertise of a police officer (Morelli, at para. 74); and the failure to provide evidence supporting the provenance and reliability of a document of disputed authenticity (R. v. Voong2013 BCCA 527 (CanLII), 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 be excised in its entirety. This is because the uncorrected, erroneous information simply cannot be permitted to remain in the ITO, thereby providing 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 amplification prerequisite. Given that amplification is confined to “good faith” error correction, it follows that by acting in bad faith, an affiant officer squanders the opportunity to have intentionally misleading information considered in its corrected form by the reviewing judge. The misleading 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 to make full and frank disclosure is egregious enough to “[subvert] the pre-authorization process through deliberate non-disclosure, bad faith, 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 full and frank disclosure. It is not an opportunity during the search warrant review for the Crown to retroactively add information that it could have included in support of the warrant but failed to do so: Morelli, at para. 42. To permit this would turn the authorization process into a sham: Araujo, at para. 59.


The Court of Appeal allowed the accused’s appeal on the basis that the trial judge “erred in upholding the validity of the residence search and the digital video recorder search. Both searches were conducted without reasonable and probable grounds, contrary to s.8 of the Charter” (at para. 7). The court reasoned as follows (at paras. 51-52):


With respect to the residential search warrant, the trial judge did not recognize the extent to which the affiant officer had failed to make “full and frank disclosure” in the [Information to Obtain affidavit (ITO)] as the law requires. Had he done so, and had he remedied the deficiencies properly, the only decision he could have come to is that the ITO could not enable an issuing justice to properly find that there were reasonable and probable grounds for issuing the warrant.


What is more, the Court of Appeal also found that there was a material non-disclosure relating to the ITO for the digital video recorder that the trial judge improperly dismissed. However, this non-disclosure and this error by the trial judge do not matter because there is a more profound problem. On its face, the ITO for the digital video recorder warrant failed to disclose any grounds for the search of the digital video recorder. The trial judge erred by not addressing this.


Finally, the Court held that the trial judge erred by not excluding the digital video recorder evidence under s.24(2) of the Charter. The affiant officer’s failure to make full and frank disclosure, while not intentionally in breach of the Charter, approached the more serious end of the spectrum of Charter-infringing state conduct. The impact of the breach on the accused’s Charter-protected interests was serious. On the other hand, society’s interest in the adjudication of the case on its merits favoured admission of the evidence. In balancing these three factors, the court concluded that the long-term interests of the administration of justice “would be significantly undermined if courts condoned the degree of inattention to the critically important obligation to make full and frank disclosure that occurred here” (at para. 127).


The court added (at para. 127) that this was a serious abuse given the ex parte nature of the warrant process.


[127]    The inquiry, however, is not solely or even mainly about the impact that excluding the evidence would have on Mr. Booth’s prosecution. In balancing the Grant factors, reviewing courts must bear in mind the impact of exclusion or admission on the long-term interests of the administration of justice: Morelli, at para. 108. The long-term interests of the administration of justice would be significantly undermined if courts condoned the degree of inattention to the critically important obligation to make full and frank disclosure that occurred here. This is particularly so where the outcome is the search of a dwelling house without reasonable and probable grounds, which occurs as a result of the misleading presentation of material information in a sworn ITO. This was a serious abuse of the privilege of an ex parte court application.


The Court ordered the acquittal of the accused as it was not in the interests of justice to order a new trial:


Although the usual outcome where a trial judge has erred by not excluding unconstitutionally obtained evidence is to order a new trial, an acquittal is required in this case. The trial judge’s finding, which accorded with the Crown’s submission during the s. 24(2) voir dire, is that the case is utterly dependent upon the digital video recording. This finding is correct. Without the excluded evidence, the Crown case is gutted, and it is not in the interests of justice to order a new trial.


If you have been charged with a criminal offence in Alberta, call Mr. J. S. Patel, Barrister at 403-585-1960 to schedule a consultation.