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POWERS OF SEARCH AND SEIZURE - Search warrants - Validity

Tuesday, February 27, 2018 @ 6:49 AM  


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Appeals by the accused, Ishmael and Elijah Lowe, from convictions for drug-related offences. Police executed a search warrant at Elijah's residence and seized 300 grams of cocaine and $46,000 in cash. The items seized supported convictions for possession of cocaine, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime over $5,000. The warrant was obtained using information supplied by a confidential informant that made mention of a firearm. No gun was seized during the search. The information to obtain (ITO) was edited by redacting information to conceal the informant's identity. The Crown conceded that the redacted ITO was insufficient to support issuance of the warrant. A Garofoli hearing resulted in the trial judge upholding the validity of the warrant. The accused appealed on the basis that the trial judge erred in adopting and applying the Garofoli procedure, that the confidential tip did not meet the criteria for reliability, and that the execution of the warrant at night was unreasonable.

HELD: Appeals dismissed. No error arose from adoption of the Garofoli procedure. The trial judge was satisfied that the undisclosed portions of the redacted ITO were sufficiently summarized and disclosed in other parts of the judicial summary to facilitate a sub-facial challenge. No improper reliance on the undisclosed portions occurred with respect to determining the warrant's validity. No improper amplification occurred as a result of the trial judge's request for provision of one of two community information reports (CIR) to her, as the step was taken to ensure the accuracy of the judicial summary. No prejudice arose from the production of the CIR to the judge. The nature of the redacted information was sufficiently clear in the judicial summary so as to allow the accused to pursue their reliability challenge to the confidential informant's tip. The trial judge did not err in concluding that the issuance of the warrant was supported by the un-redacted ITO, as the information was highly compelling and corroborated, overcoming any credibility weaknesses. The totality of the circumstances provided reasonable grounds justifying the execution of the warrant at night.

R. v. Lowe, [2018] O.J. No. 609, Ontario Court of Appeal, P.S. Rouleau, S.E. Pepall and B. Miller JJ.A., February 6, 2018. Digest No. TLD-February262018004