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Criminal - Search Warrants (2). R. v. Salmon
In R. v. Salmon (Ont CA, 2024) the Divisional Court dismissed an appeal against a trial judge's finding that there was no Charter s.8 ['Search and Seizure'] violation, here in the context of the issuance of a search warrant[27] The reviewing judge was required to determine whether, based on the record before the authorizing judge as amplified on review, the search warrant could have issued: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. .... . R. v. Maric
In R. v. Maric (Ont CA, 2024) the Ontario Court of Appeal considered the excision of evidence from a warrant authorization at a Garofoli hearing:[153] To begin, it is important to note that a subfacial challenge to a warrant has to do with what the affiant knew or ought to have known: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 77, leave to appeal refused, [2017] S.C.C.A. No. 81. That is to say, the reviewing justice’s task is not to determine whether the allegations underlying the warrant are ultimately true – a question for trial – but rather whether the affiant had a reasonable belief in the existence of the requisite statutory grounds at the time the affidavit was sworn: Paryniuk, at para. 77; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at paras. 121-23. In performing this task, it is crucial that the reviewing justice keep in mind the important distinction between the affiant’s knowledge and the knowledge of others involved in the investigation, and that, unless something is amiss, the affiant is entitled to rely on information received from other investigators: World Bank Group, at para. 123; R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 82.
[154] At a Garofoli hearing, erroneous information will only be excised when the affiant knew or ought to have known that the information relied upon was wrong: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41; R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at paras. 51-52. And, again, an affiant can rely on information provided by other investigators. As explained by Cromwell J.A., as he then was, in R. v. Morris, 1998 NSCA 229, 134 C.C.C. (3d) 539, at p. 568, amplification of evidence “is admissible to explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained.” Said otherwise, unless inaccurate information is included in a deliberate attempt to mislead the issuing justice, the reviewing justice may amplify the ITO. An example of the proper use of amplification is found in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, where the Supreme Court held that where an affiant misattributes information from two confidential informants, the proper remedy was to correct the misattribution, not to excise the information given that there was no deliberate attempt to mislead: Araujo, paras. 7, 56, 59 and 61. A reviewing justice has broad discretion when deciding whether to excise or amplify: R. v. Duncan, 2021 ONCA 673, at para. 14. And, as with any other discretionary decision, just because, as an appellate court, we might have exercised our discretion differently (by excising and not amplifying) does not mean appellate intervention is warranted: R. v. Feizi, 2022 ONCA 517, at para. 11.
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[161] Again, the focus at a Garofoli hearing is on what the affiant knew or ought to have known at the time the ITO was sworn; which is not to be measured against the truth, but against the affiant’s reasonable belief: Paryniuk, at para. 77. ....
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[173] .... It is important to remember this court’s longstanding direction to not turn Garofoli pre-trial admissibility hearings into a trial of the allegations: Sadikov, at para. 86, citing Ebanks at para. 21; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 43, 64. Which is to say, at a Garofoli hearing the ITO is to be measured against the affiant’s reasonable belief at the time, and not against what we might later learn to be objective truth.
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[182] We agree with the application judge that this court’s decision in Chang is the leading authority. Mr. Brounsuzian suggests that while Chang precludes someone from relying on non-accused third parties’ rights for excision, the decision does not go so far as to prohibit reliance on the breach of a co-accused’s rights, where the issue has been or is to be decided in that same proceeding. In support of his position, Mr. Brounsuzian relies on several lower court decisions, including R. v. Guindon, 2015 ONSC 4317; R. v. Hamid, 2019 ONSC 5622, 448 C.R.R. (2d) 198; and R. v. Colegrove, 2022 NSSC 132, 511 C.R.R. (2d) 171.
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[184] As this court explained in Chang, where there is no evidence that impugned information was obtained as a result of a breach of the accused’s personal Charter rights, there is no basis for excision: Chang, at paras. 35-41. Said otherwise, the enforcement of Charter rights must be personal to an accused. As the Supreme Court held in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, 26 O.R. (3d) 736, the Charter protects people and not places: Edwards, at para. 45. Put simply, as Mr. Brounsuzian had no reasonable expectation of privacy in Unit 3802, he did not have standing to challenge the search conducted there, nor seek a remedy: Edwards, at para. 51; R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, at para. 44; R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.
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[186] Accordingly, we see no error with the application judge’s conclusion that this court’s decision in Chang limits automatic excision to information obtained in breach of an accused’s personal Charter rights. Chang was binding on the application judge and he was required to follow it. Furthermore, Chang is a decision of three members of this court. Only a panel of five judges of this court can overrule Chang, but the appellant did not seek the appointment of an enlarged panel. Therefore, it would not be appropriate for us to revisit the outcome in Chang.
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[189] In assessing this ground of appeal, it is important to remember that the role of a reviewing justice is different from that of the issuing justice: Araujo, at para. 51; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. While the issuing justice is tasked with determining whether the application satisfies the test for issuance, a reviewing justice asks whether there was any basis upon which the issuing justice could have granted the application: Paryniuk, at para. 43; Araujo, at para. 54. And this court’s role is simply to assess whether the reviewing justice applied the correct legal test and properly considered the relevant evidence. Mr. Eckstein, by advancing the same arguments that were rejected by the reviewing justice, ignores these different roles.
[190] Here, it was open to the application judge to find that there was a basis upon which the issuing justice could have issued the tracking warrant. Section 492.1 of the Criminal Code requires an authorizing justice be satisfied “that there are reasonable grounds to suspect that an offence has been or will be committed” before issuing a tracking warrant. It is important to remember that reasonable grounds to suspect is a lower standard “than a belief upon reasonable and probable grounds”: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75. On the standard of reasonable suspicion, the objective fact must merely “be indicative of the possibility of criminal behaviour”; the evidence need not itself consist of unlawful behaviour or “be evidence of a specific known criminal act”: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 35. On the evidence before the issuing justice, there was a basis to find that the standard for issuing the warrant was met. . R. v. Cartmer
In R. v. Cartmer (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal conviction appeal, here on Charter s.8 warrant issuance grounds:[2] At trial, the only issue was whether evidence obtained further to a search warrant issued under s. 487 of the Criminal Code was obtained in breach of s. 8 of the Canadian Charter of Rights and Freedoms and should be excluded under s. 24(2). The trial judge dismissed the appellant’s application to exclude the evidence, concluding that the issuing justice “could have issued the authorization [for the warrant] on the record before her.”
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[11] The test for the trial judge on her review of the warrant application was “whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued,” not whether the application for the warrant should have been granted at all: R. v. Vu, 2013 SCC 60, [2013] S.C.R. 657, at para 16. The standard is “credibly based probability”: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81, citing Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167. The issuing justice may draw inferences from the facts set out in the ITO, so long as those inferences are reasonable: R. v. El-Azrak, 2023 ONCA 440, 167 O.R. (3d) 241, at paras. 96, 101; R. v. Jones, 2023 ONCA 106, at para. 14.
[12] The test for this court is whether the reviewing judge erred in law in her interpretation and application of that standard. The scope of appellate review is quite narrow: Jones, at para. 11.
[13] The affidavit in support of the ITO must be truthful and should fully and plainly set out the facts. The reviewing court is concerned with identifying any deficiencies in the ITO that might have misled the authorizing judge including overstatements, misstatements, or a failure to state material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 47, 53. The reviewing court determines, based on the ITO as excised and potentially amplified, whether there is “sufficient credible and reliable evidence upon which the issuing judge could be satisfied that there were reasonable and probable grounds to issue the warrant”: R. v. Mackey, 2020 ONCA 466, 392 C.C.C. (3d) 230, at para. 54.
[14] In a case where the ITO relies on tips from a CI, the court must consider whether the tips are compelling, whether they come from a credible source, and whether the tips are corroborated. The ITO must include information that will allow the issuing justice to assess the CI’s reliability, and explain what makes the tips compelling, including unfavourable details, if any, about the informer. The court will consider the totality of the evidence. A weakness in one area may be compensated by strengths in the other two factors: Jones, at para. 12 citing R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168; R. v. Crevier, 2015 ONCA 619, at para. 68. . R. v. Brown
In R. v. Brown (Ont CA, 2024) the Ontario Court of Appeal allows a Crown appeal from a Charter 7,8,9 and 24(2) breach finding that the 'Feeney warrant' used "did not authorize an unannounced entry and no exigent circumstances emerged after the warrant was issued that would justify a so-called dynamic entry", thus resulting in a trial partial stay of the charges:General principles with respect to Feeney warrants and the “knock and announce” rule
[48] The state does not have unrestrained power to enter a person’s private residence for the purpose of arrest. This principle, as well as the accompanying “knock and announce rule”, have been recognized in common law for hundreds of years. In a passage from Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194 cited by the Supreme Court of Canada in Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, at p. 743, the Court of King’s Bench held that “the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose” and that, accordingly: “In all cases when the King is party, the Sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the [King’s] process, if he cannot otherwise enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.”
[49] The Supreme Court of Canada affirmed and elaborated on this principle in Eccles v. Bourque. At p. 744, the Court held that “[e]ntry can be made against the will of the householder only if (a) there are reasonable and probable grounds for the belief that the person sought is within the premises and (b) proper announcement is made prior to entry.”
[50] In its 1997 decision in Feeney, at para. 43, the Supreme Court held that the principle acquired more weight with the advent of the Charter, as “the legal status of the privacy of the home was significantly increased in importance”. Feeney led to the adoption in the Criminal Code of specific limits concerning when and how police can enter a private residence to arrest a suspect.
[51] In the absence of exigent circumstances, ss. 529 and 529.1 of the Criminal Code require that the police obtain prior judicial authorization, by way of a Feeney warrant, before entering a residence to arrest a suspect. In executing the warrant, they are presumptively required to knock on the suspect’s door, identify themselves as police, and give the suspect an opportunity to answer the door before entering forcibly: Eccles, at p. 740; Feeney, at para. 26.
[52] Police who have obtained a Feeney warrant may enter a residence unannounced only if they have sought and obtained prior judicial authorization to do so under s. 529.4(1) of the Criminal Code, or if the exceptional circumstances set out at s. 529.4(3) are met. Before authorizing an unannounced entry, the issuing judge must be satisfied by information on oath that there are reasonable grounds to believe that prior announcement of the entry would either:(a) expose the peace officer or any other person to imminent bodily harm or death; or
(b) result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence. [53] Even where the police obtain a Feeney warrant that permits entry into a dwelling unannounced, s. 529.4(2) states that a no-knock entry is not permitted unless the executing officer has, immediately before entering, either reasonable grounds “to suspect that prior announcement of the entry would expose the peace officer or any other person to imminent bodily harm or death” or “reasonable grounds to believe that prior announcement of the entry would result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence”. Likewise, under s. 529.4(3), if the police have not obtained a warrant to enter the residence under s. 529.3, they may only enter without prior announcement if these same conditions are met immediately before they enter.
[54] The purpose of the knock and announce rule is two-fold. First, it is intended to “minimize the invasiveness of arrest in a dwelling and permit the offender to maintain his dignity and privacy by walking to the door and surrendering himself”: Feeney, at para. 50, citing R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145, at p. 161. In addition, the rule promotes the safety of both the suspect and the police. As stated in Eccles, at p. 746: “An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance.”
[55] The dual justification for the knock and announce rule was reiterated in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 19. The rule “not only protects the dignity and privacy interests of the occupants of dwellings, but it may also enhance the safety of the police and the public”. . R. v. England
In R. v. England (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here from convictions for "drug trafficking and firearm offences".
Here the court considers a Garofoli (warrant challenge) application:(5) The Garofoli Application
[34] The appellant challenged the facial and sub-facial validity of the warrants to search the Thorold residence and the storage unit, pursuant to R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. He argued that the searches of those locations breached his right against unreasonable search and seizure, contrary to s. 8 of the Canadian Charter of Rights and Freedoms, and that the evidence derived from the searches should be excluded pursuant to s. 24(2).
[35] As to the warrants’ sub-facial validity, the appellant maintained that the addition of the claim that CIs had advised that the appellant “store[d] the bulk of his supply in multiple locations” in the amended ITO – drafted just hours after the original – was suspicious. The appellant doubted that the CIs would have come forward with this information in that short a time frame. The appellant sought and was granted leave to cross-examine Officer Sherry on this issue.
[36] When he was cross-examined, Officer Sherry explained that he had received the information about the appellant storing his supply at multiple locations from the CIs before submitting the original ITO. He had included the information in a confidential tear-away appendix referred to in the body of the ITO to which the appellant did not have access. He had arranged the information this way in order to protect the identity of the CIs.
[37] The trial judge dismissed the Garofoli application. She accepted Officer Sherry’s testimony, considering it to be clear, careful, and credible. She found that there was nothing suspicious about the information in the amended ITO and rejected the appellant’s sub-facial challenge.
[38] Turning to the issue of facial validity, the trial judge rejected the appellant’s submission that there was insufficient evidence in the amended ITO to connect the Thorold residence and the storage unit to his alleged drug trafficking operation. Her reasoning was as follows.
[39] There were clear grounds to believe that the appellant was involved in drug trafficking. He had a lengthy record of drug trafficking offences and was associating with several other convicted traffickers. The NRPS had received credible tips from trusted CIs. Officers had corroborated most of the tips’ essential details, including the identity of the appellant’s associates and the place out of which they were operating. The short trips of visitors coming in and out of the side door of the Welland house were consistent with drug trafficking behaviour. Officers observed one of the appellant’s associates conducting what appeared to be a hand-to-hand drug transaction and had also witnessed the appellant engaging in what appeared to be a drug transaction at Walmart on December 31, 2019.
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[42] In sum, the trial judge held that the appellant had failed to establish that the warrants could not have issued based on what was before the issuing Justice of the Peace. . R. v. Shirley
In R. v. Shirley (Ont CA, 2024) the Ontario Court of Appeal considered how to examine the legal adequacy of a tracking warrant's 'Information to Obtain' in the context of confidential informant redactions:[11] The appellant brought a s. 8 Charter application, claiming that the redacted ITO contained insufficient grounds to support the issuance of the warrants. The appellant argued that the issuing justice could not have issued the warrant given the insufficiency of the grounds as reflected in the redacted Information: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452.
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[13] Whether there existed reasonable grounds to believe that the tracking warrant would assist in the investigation (s. 492.1(1)) or reasonable grounds to suspect that the transmission data would assist in the investigation (s. 492.2(1)), relied almost wholly upon the strength of the information provided by the confidential informants. This in turn required an assessment as to whether the informants were credible and whether the information they provided was compelling and corroborated: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140; R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 28.
[14] This left the Crown with the option of trying to justify the issuance of the warrants based upon the redacted ITO, often referred to as step five of Garofoli, or proceeding under step six and asking the trial judge to review unredacted information: Garofoli, at pp. 1460-61.
[15] The trial Crown was clearly not inclined to proceed under step six. Instead, the trial Crown was prepared to proceed under step five and have the court assess the adequacy of the grounds for issuance on the basis of the redacted ITO, as supplemented by the Crown Summary of Appendix B. The appellant was prepared to accept that the summary was accurate and could be used for this purpose.
[16] At one point in the trial Crown’s oral submissions on the compelling and corroborated nature of the confidential source information, the trial judge asked if he would necessarily be speculating about those issues. The trial Crown responded that the defence had conceded the accuracy of the summary, but that if the trial judge had any concerns over its accuracy, he could open the sealed packet and verify the accuracy of the summaries.
[17] At no point did the trial judge open the sealed packet. Instead, he concluded in his ruling that he could not give the police “credit” for what “may have been provided to the issuing justice.” He expressed dissatisfaction with the trial Crown’s decision not to proceed to a full-blown step six procedure and, ultimately, concluded that a s. 8 breach had been made out because the redacted ITO contained insufficient grounds to support the issuance of the warrants. . R. v. Shirley
In R. v. Shirley (Ont CA, 2024) the Ontario Court of Appeal illustrates the issuance and use of a telephone 'tracking warrant':[5] An Ontario Provincial Police officer prepared an Information to Obtain (“ITO”) for a tracking warrant pursuant to s. 492.1(2) of the Criminal Code, R.S.C., 1985, c. C-56 and a transmission data recorder warrant pursuant to s. 492.2(1). The ITO described the “involved person” as an “unknown male” who was believed to be involved in trafficking in drugs and using a specified telephone number “to facilitate the dealing.”
[6] The affiant set out the fact that two confidential informants had provided their handlers with information about what appeared to be the same “unknown male” who was selling Schedule I drugs in the Peterborough area. The informants both provided to their police handlers the same phone number used by the unknown male. To protect the identity of the confidential informants, the affiant included all relevant information about the informants in Appendix “B” to the ITO. That appendix provided information that was said to support the credible, compelling, and corroborated nature of the information they had provided.
[7] The ITO also addressed why it was said that tracking the telephone corresponding to the number both informants had provided, as well as obtaining data pertaining to the use of that telephone, would assist in the drug investigation. Among other things, these investigative measures would assist in determining the identity of the drug trafficker, as well as his whereabouts.
[8] Once the warrants were obtained, a surveillance team was able to track the phone over a number of days and ultimately the police were able to determine the appellant’s identity and confirm his activities as a drug trafficker.
[9] The appellant was eventually arrested while driving a vehicle. Fentanyl, cocaine, crystal methamphetamine, drug paraphernalia, and cash were located when the vehicle was searched incident to arrest. The phone corresponding to the number that the confidential informants had provided was also located in the vehicle. . R. v. Pulford
In R. v. Pulford (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown appeal of an acquittal of "possession of child pornography contrary to s. 163.1(4) of the Criminal Code", emanating from "a Garofoli application where the search warrant authorizing the search of the respondent’s home was found to be unlawfully obtained".
Here the court considers the effect of formal 'oath' faults in the 'information to obtain' (ITO) the warrant:Issue 1: Did the use of an expired stamp by the commissioner of oaths invalidate the ITO?
[19] The respondent made no submissions on this issue and conceded that the evidence should not have been excluded under s. 24(2) if this had been the only breach that invalidated the search warrant.
[20] There are two components to this issue: 1) Could the additional evidence contained in the agreed statement of facts be used to rectify the facial error by the commissioner of oaths?; and 2) if it could, did that evidence sufficiently address the problem of the expired stamp?
[21] With respect to the first component, clear precedent from this court, followed in subsequent cases in the Superior Court of Justice, establishes that where there are errors on the face of the ITO in connection with the jurat of the commissioner of oaths, including failure by the commissioner to sign the jurat and failure by the affiant to sign the affidavit, extrinsic evidence is admissible to demonstrate that the ITO was in fact properly sworn: R. v. Lachance, [1988] O.J. No. 151 (C.A.), rev’d on other grounds, 1990 CanLII 53 (SCC), [1990] 2 S.C.R. 1490; R. v. Waldron, [2018] O.J. No. 2445 (S.C.); R. v. Dixon, 2012 ONSC 181.
[22] Regarding the second component, the reviewing judge found that the error with the stamp was not corrected by the evidence in the agreed statement of facts, and that the result was that it jeopardized the oath:What was affixed was an expired stamp, therefore, that document is not valid on its face. There is no information before me that could correct that. Even if the commission had been extended, as indicated in the agreed statement of facts, the document on its face, and relying on Sadikov [2014 ONCA 72, 305 C.C.C. (3d) 421], that this is a facial validity issue, results in a situation that this document was not shown to be taken under oath by someone who was able to take an oath from an individual.
So, if anyone is going to take an oath who has a limitation, such as the commissioner in this situation had a limitation, they must comply with that Act in order to take something under oath. If they take it otherwise, it is as if it was not under oath. [23] The Commissioners for Taking Affidavits Act defines who has the authority to administer an oath in Ontario, and includes commissioners by virtue of holding an office, such as lawyers, and others who are appointed by the Attorney General. The first group has no temporal or territorial limitation on their authority in Ontario, while the latter are appointed for three years, renewable, and may have territorial or other limitations on their authority.
[24] Section 5 of the Act provides:5. Every commissioner whose appointment is limited in its duration or as to territory or purpose shall indicate the limitation by means of a stamp approved by the Attorney General or his or her delegate under subsection 4(1.1) and affixed under the commissioner’s signature. [25] In this case, the commissioner affixed the stamp that applied to her expired appointment. The agreed statement of facts explained that the commissioner’s appointment had been renewed before it expired and that on the date the ITO was sworn, February 3, 2020, “the commissioner held a valid appointment for administering oaths and taking affidavits in Ontario.”
[26] Although the agreed statement does not state explicitly that the commissioner had the appropriate stamp to affix in connection with her renewed appointment, that is implied by the agreed statement. Having a valid appointment includes the ability to exercise that appointment, which requires affixing the stamp each time.[1]
[27] The Criminal Code requires that a justice issuing a search warrant be satisfied by information sworn “on oath”. The evidence in the agreed statement is sufficient to satisfy the court that the ITO was made under oath, and that the commissioner who took the oath had the authority and the capacity to validly do so. The error on the face of the ITO is corrected by the evidence in the same way that it was in Lachance.
[28] I therefore conclude that the reviewing judge erred in law by invalidating the warrant on the basis of the facial defect created by the use of the expired commissioner’s stamp and by excluding the evidence under s. 24(2) based on that s. 8 breach.
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