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Evidence - Amplification. R. v. Nguyen
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal considers 'amplification' of a criminal 'information to obtain' (ITO) a search warrant:[32] I agree that amplification was permissible to correct the ITO to state that D.C. Merritt told D.C. Goss the appellant was dealing from 1430 King St. West. The only live dispute is whether D.C. Merritt told D.C. Goss the appellant lived at 1430 King St. West or trafficked drugs from there. The application judge was entitled to prefer the evidence of D.C. Merritt over D.C. Goss on this point. The focus on amplification is whether the police had the information at the time of the application for the search warrant but failed to communicate it due to a failure in drafting: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 59; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 42-43. Amplification is not restricted to correcting mechanical or typographical errors but extends to failures to communicate what was known by the affiant as a result of want of drafting skill: R. v. Duncan, 2021 ONCA 673, at paras. 14-16. . R. v. Feizi
In R. v. Feizi (Ont CA, 2022) the Court of Appeal considered the 'amplification' of evidence in a criminal context:[4] This application failed. The trial judge agreed with the appellant that the inaccurate representations relating to the address label had to be excised. However, after finding that the affiant had made these errors in good faith by erroneously stating his conclusion as to the intended delivery address instead of describing why he believed 4 Fernwood Court to be the intended delivery address, she permitted the Crown to amplify the ITO. It is not contested that the amplification evidence furnished reasonable and probable grounds for the general warrant.
[5] The appellant argues on appeal that the motion judge erred by applying the wrong test in permitting amplification, and that on the correct test, the Crown’s amplification evidence should not be permitted. He asks that his appeal be allowed, the evidence be excluded pursuant to s. 24(2) of the Charter, and a verdict of acquittal be substituted.
[6] We are not persuaded that the trial judge erred, and therefore dismiss the appeal.
[7] Amplification is permitted only to correct minor, technical errors that were made in good faith: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 59; R. v. Duncan, 2021 ONCA 673, at paras. 9, 15. The appellant takes no issue on appeal with the trial judge’s factual finding that the affiant’s errors were made in good faith. The appellant argues that the trial judge applied the wrong test by asking whether the errors went to the “core of the ITO” instead of asking whether they were “minor or technical” errors. We do not agree. The trial judge stated the test correctly at the outset of her decision: “[A]mplification may occur to correct minor errors in the ITO that were made in good faith.” When the trial judge subsequently said, “The error does not in my view go to the core of the ITO”, she was responding directly to and rejecting the defence submission that the errors went to the core of the ITO. When the decision is read as a whole, it becomes clear that the trial judge applied the correct test.
[8] Nor do we accept the appellant’s alternative submission that the errors are not minor or technical by any reasonable standard. Three points need to be made.
[9] First, an error can be minor or technical even if it relates to an essential component of a search warrant application, as these errors do. In Duncan, this court rejected the suggestion that amplification is limited to “errors or omissions in the affidavit which are so minor as to have little, if any, relevance to the ultimate legality of the authorization”: at para. 15. It follows that the characterization of an error as minor or technical turns on the nature of the error made and not on the importance of the topic the error relates to.
[10] Second, in the face of the decision in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, we do not agree with the submission that the errors in this case cannot be characterized as minor or technical “by any reasonable standard”. In Plant, the affiant represented that a confidential informant provided information that marijuana was being cultivated “at the residence of 2618 26 Street S.W.”, when the confidential informant had only described a “cute house” on the 2600 block of 26th Street. Sopinka J. permitted amplification of the record “by reference to the fact that the police were able to locate a residence matching the description which they were given”: at pp. 298-299. We do not accept the appellant’s submission that the amplification permitted in Plant is materially distinguishable because in that case the police were not given an inaccurate address as they were here, and that in this case, the affiant replaced one address with another. It is obvious that the delivery address on the intercepted package was not a real address. The replacement that occurred was to substitute a misstated address with what the affiant clearly believed to be the intended address. We accept, as did the trial judge, that the affiant should have disclosed his reasoning and not just his conclusion, but we do not accept the submission that this case differs from Plant because it involved the substitution of one address for another. In our view, this case cannot meaningfully be distinguished from Plant. What matters is that in Plant, as in this case, the Crown was permitted to amplify an inaccurate claim that the police had a precise address to be searched, with evidence explaining how the police identified the address to be searched.
[11] Third, although there is certainly room for disagreement about whether the errors in this case were minor or technical, it would not be appropriate for us to substitute our view for the conclusion of the trial judge, even if we would have arrived at a different conclusion. As this court said in Duncan, at para. 17: “As with most decisions that involve the exercise of discretion, legitimate arguments can be made favouring the exercise of the discretion differently than it was exercised by the trial judge. That is not enough to warrant appellate intervention.”
[12] Of course, deference would not be warranted had the trial judge’s characterization of the error been unreasonable, but given the analogous decision in Plant, that cannot be said to be the case. Nor, for the same reason, can we accept the appellant’s related argument that the amplification that occurred in this case was an impermissible example of the Crown being allowed, contrary to the dictum in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 42, to retroactively add information that it could have included in support of the warrant but failed to do so.
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