With the explosion of the Rob Ford story and the recent release of related court documents terms like ‘information to obtain’ and ‘reasonable and probable grounds’ have leaked from courtroom submissions into the popular discourse.
Search warrant and the process to obtain and challenge them are a complex area of the law. This complexity arises from the extraordinary power search warrants bestow on the police.
The starting point in any search warrant discussion is the Criminal Code and the Controlled Drugs and Substances Act (CDSA). Both of these statutes contain provisions that can authorize the issuance of search warrants. These provisions are designed to ensure effective limits on the powers of police to invade the privacy of citizens and to precludes the police from embarking on fishing expeditions in the hope of uncovering evidence of crime.
There are some slight differences between the authorization powers in the Criminal Code and the CDSA, however their basic principles are the same: before issuing a search warrant a justice has to be satisfied on oath that there are reasonable grounds to believe the search will afford evidence with respect to the commission of an offence.
A judge, If satisfied that there are reasonable and probable grounds can issue a warrant authorizing the police to search the building or place for the named thing and to seize it.
The sworn document that outlines the police’s reasonable and probable grounds is commonly called an Information to Obtain a Search Warrant or ITO. The court documents released in relation to Toronto Mayor Rob Ford are a heavily redacted copy of an information to obtain a search warrant.
The above is of course a simplification of the rules surrounding search warrant and their authorization. The process of obtaining or challenging a search warrant and the ITO that justified its authorization is, to say the least, complex.
Reasonable and Probable Grounds to Issue
For any search warrant to be issued the police must demonstrate the existence of “reasonable and probable grounds”. The reasonable and probable grounds standard lies between suspicion and proof beyond a reasonable doubt.
Affidavits outlining reasonable and probable grounds, such as the ITO in the Ford case, must meet the criteria set by the Supreme Court in R. v. Araujo. They must set out facts – not suspicion or conjecture – fully and frankly so that the authorizing justice can make an assessment of whether they rise to the standard required for an authorization to search.
Affidavits must not trick; they must not under-state weaknesses in the evidence or over-state strengths, and the must not stray into speculation. In sum, they must permit a justice to act judicially.
The police are required to provide the judge full and frank disclosure of all the facts. It must always be remembered that supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for finding reasonable and probable grounds.
Challenging a Search Warrant
A search warrant can be challenged on the basis that should not have been issued because there were no reasonable and probable grounds or that the judge who issued the search warrant was mislead with respect to the grounds.
As one may expect ITO’s can be lengthy documents. Reasonable and probable grounds can be shown a number of ways including: informant information, police surveillance, or other evidence. Given that this information is sworn to by the police and given that there is judicial oversight the standard of review when challenging a search warrant is quite high.
The role of a reviewing court is limited and the court is not to substitute its views for that of the issuing justice. The Supreme Court in R. v. Garofoli held:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
Despite the high standard of review the reviewing court is nonetheless performing a real judicial function aimed at ensuring that privacy rights are respected. It must be remembered that the obtaining of a search warrant should not be the product of a “rubber stamp” procedure. The Supreme Court of Canada in R. v. Araujo stated:
..the authorizing justice must look with attention at the affidavit material, with an awareness that constitutional rights are at stake and carefully consider whether the police have met the standard. All this must be performed within a procedural framework where certain actions are authorized on an ex parte basis. Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests. The judge should not view himself or herself as a mere rubber stamp.
The Ford ITO is heavily redacted making any meaningful evaluation difficult. It is apparent the investigation was extensive. The Toronto Police utilized informants, production orders, interviews, and some the most extensive surveillance I have ever seen to justify reasonable and probable grounds. The investigation was nothing if it was not thorough.
Given the extent of the investigation and material presented to the issuing justice any defence lawyer challenging the Ford search warrant has a lot of hard work in their future.
It kind of makes me jealous.