Search warrants, errors, omissions, and corroboration: a basic overview of what we look for as lawyers.

To obtain a search warrant, police must present the issuing justice with sufficient information to satisfy the justice that a warrant ought to be issued.  This is known as the Information to Obtain (ITO).  The justice must be satisfied there is sufficient likelihood that an offence has been committed and that relevant specified evidence will be found in a certain place necessitating a search warrant.

What if the warrant was backed on false information?

Now imagine the scenario wherein the justice is satisfied that warrant is justified, issues it, the warrant is executed and evidence is found to implicate the accused at trial.  However, imagine now that some of the information in the ITO was incorrect, erroneous … false.  This does not change the fact that the evidence was found and does not even change the fact that the granting of the warrant was justifiable, in retrospect.  However, it would of course defeat the entire purpose of the law of warrants to allow the ends to justify the means.  That is, the accused must be able to challenge the warrant as having been insufficient in the same way an accused can challenge an illegal search notwithstanding the results of that search.

The sort of mistake mentioned above is what is known as a subfacial error in the warrant.  This means that there is missing or erroneous information given to the issuing justice such that he or she granted the warrant on the basis of false or incomplete information.  (Contrast this with a facial error wherein all the right information was there in the ITO, but the issuing justice misjudged the sufficiency of that information in granting the warrant).

And so our question arises: what does a reviewing judge do when an accused makes the argument at trial that “hey, that warrant was issued under false pretenses”?

The Supreme Court of Canada stated the proper procedure in a case called R. v. Araujo, [2000] 2 S.C.R. 992.  Essentially, there is a three-step process to be followed.  Essentially, the court takes the ITO, erases false information, may replace some of the false information with what is actually true, and then determines whether or not this “revised” ITO could have led to the issuance of a warrant.

Excision of the search warrant

Step One is excision.  Essentially, the reviewing judge must determine what (if any) information in the ITO was erroneous, and delete it from the ITO.  After Step One, the court will have an “edited” version of the ITO; one which only contains true information known to police at the time that they asked a justice to issue a warrant.

As the court in Araujo expresses the law: “[T]he function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could be satisfied that a search warrant should issue”

This is obviously a critical step as it rights the wrong that is false information given to the issuing justice.  The ultimate question is whether or not the issuing justice approved the warrant based on false pretences.  The step of excising, or removing the erroneous information is the first step in making this determination.

Amplification of the search warrant

Step Two is known as amplification. In this step, the reviewing judge has an opportunity to “plug in” information that is not in the original (or edited) ITO, but based on information that is now known to the court to be true.  The doctrine of amplification allows the court to replace erroneous information that is of a trivial nature and the mistake was made in good faith.  As the Supreme Court in R. v. Morelli [2010] 1 S.C.R. 253 puts it, amplification is meant “only to correct ‘some minor, technical error in the drafting of their affidavit material’ so as not to ‘put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made’ such errors”.

If we think ahead to the ultimate third step of assessing the strength of the excised then amplified ITO, we understand the need of some latitude for amplification.  For example, imagine the ITO stated that “Mr. James Taylor, a reliable and proven informant, told police that he had many times seen that the accused was growing marijuana out of his basement”.  Now imagine that in actually, the informant was named Tyler, not Taylor.  The law requires the reviewing judge to excise the erroneous information.  This means that the judge must erase the name of the central informant.  Perhaps this information was the major basis for the authorization of the warrant and justifiably so: without information about what Mr. Taylor/Tyler saw, there is no way an issuing justice would have granted the warrant.  So, upon learning the truth, for example, through testimony of police and Mr. Tyler himself as to the true name of the informant, the judge, through amplification, may replace the excised error with the correct information: that Mr. Taylor saw the marijuana in the accused’s basement.  On that basis, the court may rule the warrant could still have been granted based on the revised information.

The limitations of amplifying search warrants

On the other side of the coin, it is also apparent why the reason the ability to amplify is so limited in law.  Clearly, it would defeat the purpose of pre-authorized searches if we justify the authorization based on information not known at the time of authorization.  It would not be pre-authorization, but in fact “post-authorization”.  For example, imagine the ITO had originally said, as in our previous example, “Mr. James Taylor, a reliable and proven informant told police he had seen marijuana growing in the accused basement”.  And the warrant was granted on the strength of that information.  But then at trial, let us say, it comes to light that this statement was erroneous: in fact the suspicion of illegal activity in the basement did not come from Mr. Taylor, but was actually observed through an open basement window by the police officer who wrote up the ITO (the “warrant applicant”), who was on duty walking by on the sidewalk and glanced in through the open window when he heard a scream; and in fact it was not marijuana that was seen, but a cache of illegal firearms.

Now, having heard what really happened – from Mr. Taylor, police, can the court “amplify” what was stated in the ITO with what actually happened?  It is very likely that on the correct information, an issuing justice could be convinced to issue a search warrant: the source is still reliable, there is still reasonable grounds to believe a crime has been committed (possession of the firearms), and grounds to believe evidence of that crime would be found in that basement.  The truth is now known, and it would have been more than enough to justify the issuance of a warrant to search that basement.  But of course that new information cannot be amplified.  Police may well have had justification for a search warrant, but they did not communicate any of those reasons to the issuing justice.  Whether or not the motivation in this case was quite so callous, we cannot allow police to make up a cock-and-bull story to get the warrant, then seize evidence, then justify the search after-the-fact with new evidence at trial.  In most scenarios, the motivations is likely not this callous.  It is likely carelessness or a major oversight or something of that nature.  Regardless, it goes right to the heart of the prior authorization: there must be sufficiently reliable, accurate evidence to justify a search before the search is affected.

Court determination of the validity of a search warrant.

The final step then is the determination by the reviewing court as to whether or not the issuing justice could have justifiably issued the warrant on the basis of the revised (excised and perhaps amplified) version of the ITO.  It is a retroactive application of the standard for a search authorization considering the “revisions” made to the ITO.

We can imagine scenarios wherein the issue stands and those in which it does not.  The warrant will stand if there is sufficient information to justify the warrant despite excision and perhaps aided by amplification.  One example would be a separate source unaffected by the excision of erroneous information.  In our most recent example, the entirety of the Taylor information was removed from the ITO by the reviewing judge and not subject to amplification because it was substantially incorrect.  But what if, totally separate from that source of information, the accused’s brother and co-resident of the basement in question had attended the police station days earlier with a full report and pictures of the contraband?  Well then, of course, despite the fact that the entire “Taylor” information is excised, there is still enough information remaining in the ITO that the warrant could have (and would have) been issued.

Conversely, absent such an alternate source of information, there is nothing – or not enough – information on which the issuing justice would have issued the warrant.

In the end, the courts are unwilling to declare a search unauthorized and therefore unconstitutional on the basis of trifling or minor mistakes in the ITO.  However, in implementing this 3-step process, they ultimately are able to uphold the integrity of the law of prior authorization.  If an issuing justice was presented with false information and issued the warrant on that basis, it will not stand.  The process of excision pinpoints the “on that basis” element of this test: without the erroneous information, what is left in the ITO?  If there is still enough there (from other sources of information, or if the reliability of the information is left sufficiently intact despite partial excision) to justify the issuance of the warrant, it stands.  If not, the search is considered unauthorized by warrant and unless there is a separate authorization for the search, it is unconstitutional.

The process is important and it is important to have a lawyer that properly understands the various ways to defend your charges.  Nothing in this blog should be interpreted as (anything close to) legal advice.  If you reach the stage where you are thinking about issues such as these, you should have already retained a lawyer some time ago.  If you would like to discuss this area of the law further or have been charged with a criminal offence, please do not hesitate to call.

Jordan Gold
Barrister and Solicitor