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Powers of search and seizure - Search warrants - Validity

Thursday, September 08, 2016 @ 8:00 PM  

Appeal by the Crown from a voir dire ruling quashing a warrant. The accused was charged with possession of cocaine, heroin and cannabis for the purpose of trafficking. In 2012, the RCMP received information from two confidential informants (CI) that the accused was providing drugs to street-level dealers. Based on that information, the police conducted surveillance of the accused’s home and saw a number of individuals coming and going from the residence, the majority of whom stayed less than 10 minutes. Police prepared an Information to Obtain (ITO) setting out the CI information, their surveillance observations, and the prior criminal histories of certain targets. Police obtained a search warrant for the accused’s residence and vehicle and during the execution of the warrant seized drugs, cash and other evidence. At trial, the accused challenged the warrant. On the voir dire, the judge ruled that the search warrant was wrongly issued as the ITO was insufficient. The evidence obtained under the search warrant, which included a large quantity of drugs and trafficking paraphernalia, was not admitted at trial and the case against the accused collapsed. The Crown appealed, arguing that the trial judge erred in setting aside the warrant. The Crown alleged that the judge misconstrued the test to be applied in reviewing the sufficiency of the grounds to support a search warrant, failed to properly assess the informer information and imported evidentiary standards and rules of admissibility used to assess proof of guilt at trial.

HELD: Appeal allowed. The acquittals were set aside and a new trial was ordered. The trial judge effectively conducted a de novo hearing into the sufficiency of the ITO founding the warrant. He failed to take into account detailed and compelling evidence set out in the ITO and improperly imported trial type evidentiary considerations into his analysis. The evidence in the ITO established a sufficient basis for the warrant to issue.