R. v. Gallinger and Parks: The Requirements for an Information to Obtain
The decision of Madame Justice Heather Perkins-McVey in R. v. Gallinger and Parks, which was reported in the Ottawa Citizen, involves an application by the accused Mr. Parks that the warrant to search his home was obtained lacking reasonable and probable grounds, the affidavit sworn by the officer who sought the warrant contained misleading statements, and that there was a lack of full, fair and frank disclosure in the affidavit. Additionally the applicant argues that the necessary pre-conditions to seek a telewarrant did not exist therefore making the warrant invalid and the search a warrantless search.
Should the above be established the applicant argues that the search was an unreasonable one and in violation of s. 8 of the Charter and seeks the exclusion of the evidence found at the scene: a Beretta handgun, six rounds of .22 calibre ammunition, a Taser gun, 2×12 gauge shotgun shells, and a quantity of Oxycocet pills.
I found this case to be an excellent read as Her Honour very thoroughly exlored the law pertaining to both the writing of informations to obtain (the affidavit explaining the reasons why a search warrant is being requested which must be submitted to a Justice in seeking a warrant), the law of pertaining to the seeking of a telewarrant, as well as the Charter implications of both. Since this case presents a number of pertinent issues I will break up this discussion into three separate blog posts.
Facts (pertaining to the writing of the ITO)
The officer who wrote the information to obtain (ITO) was his first warrant as the affiant. He testified that he had the assistance of a senior officer and had been provided with a couple of examples to refer to in preparing the warrant. The officer testified that he had been given information by other officers regarding a confidential informant (CI #1) who had claimed that Mr. Parks was in possession of a handgun. The CI provided a general locale for where Mr. Parks resided but did not provide an address. The CI also provided a loose description of Mr. Parks. The officer testified in cross-examination that he was unsure whether the CI had firsthand information or whether it came from a secondary source. The officer explained that he had checked police databases to confirm the address of Mr. Parks and confirmed that he did not possess a licence to possess firearms.
The officer had been given further information by other officers that a second confidential informant (CI #2) claimed that Mr. Parks was a “back end supplier” to street dealers and was currently in possession of a handgun in his residence which had been observed within the last three weeks. The CI provided some descriptive information of Mr. Parks as well as the street he lived on. No information was provided by CI #2 on how he knew this information.
There was no further investigation done by police until the warrant was submitted.
The Law Pertaining to Search Warrants
Justice Perkins-McVey provided a very thorough description of the law of search warrants. The following pertinent points are quotes from her judgment:
- An issued search warrant is presumptively valid thus the accused bears the onus of demonstrating its invalidity. (Para. 6)
- A constitutionally valid search must be based on reasonable and probable grounds. The reasonable and probable grounds standard does not require a finding that the relevant conclusions are more probable than not. (Para. 7)
- To determine whether there are reasonable and probable grounds the officer must on a subjective basis honestly believe that they have reasonable probable grounds to believe that an offence is occurring and that what is being sought is evidence that will be found at the place to be searched. If the affiant does not actually believe that the search warrant is invalid. This first inquiry is the “subjective” component of the reasonable and probable grounds standard. (Para. 10)
- The second part of the inquiry is the “objective” component which requires that the affiant’s belief that they have reasonable probable grounds must be supported by enough information to enable a reasonable person to come to the same conclusion. (Para. 10)
- Not only must there be “reasonable and probable grounds” as described before a warrant can issue, those grounds must also be demonstrated to the issuing Justice. (Para. 11)
- During a review of the validity of a warrant that has been issued, the reasonable and probable grounds standards are to be evaluated by the reviewing Judge with deference. This is because the legal responsibility for issuing the warrant belongs, in law, to the judicial officer who has been called upon to issue the warrant. As such, the standard on review is not whether the reviewing Judge would have found the relevant “RPG” on the basis of the information before the reviewing Justice. The ultimate issue is whether the issuing Justice could reasonably find the grounds to be sufficient. (Para. 12)
- The law does provide however for an amendment of the record by the removal of information or the amplification of that record with additional information. (Para. 13)
- What the reviewing Judge must ultimately determine is whether on the affidavit as a whole given the quality of the information consulted, the Justice could properly have been satisfied that the warrant should issue.
The only information the officer had to support the notion that a criminal offence had been committed came from the two CIs. There was no surveillance of Mr. Parks or any other investigation conducted into the reliability of the information provided by the CIs. Little information was provided on what was stated by the CIs nor is it known whether CI #1 had primary or secondary information.
In the affidavit, the officer stated that CI #1 had previously provided information in two separate investigations where a handgun was found. CI #1 also assisted with two ongoing firearms investigations and provided the police with information leading to three CDSA search warrants in which there were seizures and arrests made. The ITO stated that CI #1 had a criminal record with no convictions for perjury or treason. The court was concerned with the lack of information provided about CI #1. It was unclear what were the circumstances of the information being provided was nor why CI #1 may be motivated to help police. The court stated at para. 43: There is a real paucity of information from CI #1, and there is such a lack of detail that it is objectively difficult to evaluate on an objective basis how this information can support objectively the reasonable and probable grounds”.
According to the ITO CI #2 is said to have provided information on known drug deals and persons in possession of firearms and that the officer was able to corroborate this information as being truthful using police systems and by having discussions with other officers. In court however it became clear that the officer merely took this information from other officers and could not expand on it. The only information the record was provided about CI #2′s criminal record was that there were no convictions for perjury or treason. There was no information on why the CI may have helped police or whether he was offered some sort of deal for providing it.
The lack of information provided about both CIs criminal records was of concern to the court - again, the only information provided was that neither had convictions for perjury or treason, as stated at para. 44:
Once again this information does not assist as few but Louis Riel have been tried for treason in Canada.
Justice Perkins-McVey went on to explain that knowing the details of the records of the CIs ”is directly relevant to the determination of their credibility” (para. 47).
The court went on to consider whether the information the officer had about the CIs, which was clearly hearsay, was enough to rely on the information provided:
The extent to which information is “compelling” turns on the details or precision of those details offered. The credibility of the source is based on what is known about the informant. Corroboration secured through observations by the affiant or other officers, can be information that reasonably enhances confidence that the information is true. (Para. 51)
For a number of reasons (summarized at para. 52 of the judgment) the court found that “the degree to which the information is compelling would be compromised in the eyes of a reasonable Justice”. Additionally, concerns were raised about the issuance of a telewarrant (to be explored in another blog post) as well what the court describes at para. 75 as “careless and at times misleading drafting”. As a result of these findings the court held there was not frank and full disclosure. The court thus found that there was not sufficient reasonable and probable grounds for the warrant to issue and that the search was therefore a warrantless search and in violation of s. 8 of the Charter.
The next step for the court was to explore whether the evidence should be excluded pursuant to s. 24(2) of the Charter. For various reasons, which I will explore in another blog post, the evidence was excluded.
This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at email@example.com.