Information to Obtain (ITO)

The Applicant, Zhong Zhang, faced charges of possession for the purpose of trafficking fentanyl and cocaine.

He brought three Charter applications: a Section 11(b) application for unreasonable delay, a Section 8 Garofoli challenge to judicial authorizations, and a Section 7 application alleging a failure by the affiant to make notes.

The court dismissed the 11(b) application, finding the delay was attributable to the defence's late and voluminous filings.

For the Section 8 challenge, the court, applying R. v. Maric, limited the Applicant's standing to only two December 29 ITOs where he had a reasonable expectation of privacy, and found no Section 8 violation as the affiant made full, frank, and fair disclosure.

The Section 7 application was also dismissed, as the court found the affiant complied with note-taking duties and no Charter breach was established.

All applications were dismissed.

This ruling addresses a Section 8 Charter application brought by Daylo Robinson and Dalton Wilson to exclude a firearm and illicit drugs seized during the execution of a search warrant at Mr. Wilson's residence.

The applicants argued that the Information to Obtain (ITO) the search warrant lacked reasonable grounds to believe a firearm would be found or that evidence of procuring and obstruction of justice would be present in electronic devices.

The court reviewed the ITO holistically, considering multiple police reports and the affiant's expert opinion, and found that there were sufficient credible and reliable grounds to support the issuance of the search warrant.

The application to exclude the evidence was dismissed.

The accused, charged with dangerous driving, brought a motion seeking leave to cross-examine the affiant and sub-affiants of the Information to Obtain (ITO) a search warrant.

The warrant was used to seize and analyze dash cam and Event Data Recorder (EDR) data from his vehicle following a collision.

The accused intended to challenge the sub-facial validity of the warrant, alleging a violation of section 8 of the Charter due to material omissions and ambiguities in the ITO regarding the collision's circumstances, including the potential involvement of a third vehicle and the basis for inferring dangerous driving.

The court granted leave to cross-examine, finding a reasonable likelihood that such examination would elicit testimony tending to discredit the existence of reasonable and probable grounds for the warrant.

The Crown appealed the acquittal of the respondent on child pornography charges.

The lower court had excluded evidence, finding the search warrant invalid due to an expired commissioner of oaths stamp on the Information to Obtain (ITO) and a misleading description of the videos.

The Court of Appeal found that the expired stamp was a curable facial defect, as extrinsic evidence confirmed the commissioner's valid appointment.

Furthermore, the Court determined that the affiant's description of the videos, despite minor inaccuracies, was sufficient to establish reasonable and probable grounds for child pornography, and that the videos themselves met the statutory definition.

The appeal was allowed, the evidence admitted, and a trial ordered.

The applicant, Sheldon Baylis, brought a sub-facial challenge to the validity of a search warrant, arguing that the Information to Obtain (ITO) contained omissions and misleading information.

The court reviewed the ITO, making several amplifications (additions of material facts) and excisions (removal of erroneous or misleading information).

Despite finding serious improprieties in the police officer's disclosure, including deliberate non-disclosure and misleading statements, the court determined that the amplified and excised ITO still provided reasonable and probable grounds for the warrant's issuance.

The court also considered its residual discretion to quash the warrant due to police misconduct but declined to do so, emphasizing the high threshold required for such an action, noting that some omissions actually benefited the applicant by weakening the grounds.

The application to quash the warrant was dismissed, and the warrant's validity was confirmed.

The appellant, Michael St. Clair, appealed his conviction for possession and careless storage of a prohibited firearm and ammunition.

The appeal stemmed from an unsuccessful Charter application to exclude seized evidence, where the police had inexplicably lost surveillance video referenced in the information to obtain (ITO) the search warrant.

The application judge found a breach of the appellant's s. 7 Charter rights (right to make full answer and defence) due to the lost video but, as a remedy under s. 24(1) of the Charter, only excised references to the appellant "exhibiting the characteristics of an armed person" from the ITO, not all references to the video.

The application judge concluded that sufficient grounds remained in the ITO to uphold the search warrant and found no s. 8 Charter breach, thus dismissing the exclusion application.

The Court of Appeal dismissed the appeal, affirming that the automatic excision rule (typically for s. 24(2) breaches) does not apply to s. 7 breaches arising from lost evidence, where remedies under s. 24(1) are flexible and contextual.

The Court found the application judge's chosen remedy appropriate, as the ITO still contained ample corroborated information to support the warrant's issuance.

The accused brought an application to exclude evidence under sections 8, 9, and 24(2) of the Canadian Charter of Rights and Freedoms, arguing that a search warrant for his residence and his subsequent arrest lacked reasonable grounds.

The court found that the accused's Charter rights under sections 8 and 9 were violated due to insufficient grounds in the heavily redacted Information to Obtain and lack of reasonable grounds for arrest.

However, applying the R. v. Grant analysis, the court determined that while the impact on the accused's privacy was significant, the seriousness of the police conduct was weak, and society's interest in an adjudication on the merits for serious charges (including possession of a loaded prohibited firearm and trafficking fentanyl) outweighed the Charter breaches.

The application to exclude evidence was dismissed.

Subsequently, the court found the accused guilty on all eight charges, concluding that the prosecution proved beyond a reasonable doubt that the accused had knowledge and control over the seized items, particularly given the distinctive safe key found on his person.

The appellant appealed his conviction and sentence.

The conviction appeal challenged search warrants, arguing the trial judge erred in refusing cross-examination of the affiant and that there were insufficient grounds for the warrants.

The sentence appeal argued the trial judge erred in treating the duration of activities as an aggravating factor.

The Court of Appeal dismissed the conviction appeal, finding no error in refusing cross-examination or in the warrant's issuance.

It allowed the sentence appeal, converting the nine-month custodial term to a conditional sentence order due to the trial judge's error and mitigating factors.

The applicant, Mohamed Mohamed, sought a stay of proceedings under ss. 11(b) and 24(1) of the Charter due to unreasonable delay.

The total delay from charge to anticipated trial end was 26 months and 12 days.

The defence conceded 3.5 months of delay.

The court found the Crown's failure to disclose the Information to Obtain (ITO) for 17.5 months was the primary cause of delay, as it was integral disclosure necessary for the defence to prepare.

The Crown's request for a blanket 4-month deduction for COVID-19 backlog was denied due to lack of evidentiary support demonstrating a causal link and mitigation efforts.

The net delay of approximately 23 months exceeded the 18-month Jordan ceiling for provincial court matters.

The application for a stay of proceedings was granted.

This decision concerns a s. 24(2) Charter application to exclude evidence (a firearm) obtained following an invalid search warrant and unconstitutional police entry.

The court applied the three-factor test from R. v. Grant, finding the police conduct (gross negligence in preparing the Information to Obtain, misleading statements, lack of investigation, and warrantless entry) to be extremely serious.

While the impact on the accused's privacy interest was moderate (as he was not a resident), the seriousness of the police misconduct outweighed society's interest in adjudicating the case on its merits.

The court concluded that admitting the evidence would bring the administration of justice into disrepute, and therefore excluded the firearm against all accused.

This decision addresses a Garofoli application to review a search warrant for firearms-related offences.

The Information to Obtain (ITO) used to secure the warrant contained significant false, misleading, and unconstitutionally obtained information, which was excised on review.

The court assessed whether, based on the amended record, reasonable grounds existed to believe an offence was committed and that evidence would be found at the residence.

While a thin basis for believing an offence was committed was found, the court concluded there were no reasonable grounds to believe evidence of the offence would be found at the residence.

This was primarily due to the lack of a direct connection between the firearm and the residence, the fact that the accused was not in possession of the firearm upon arrest, and the extensive misleading information in the original ITO undermining the affiant's credibility.

The search was deemed unreasonable, constituting a s.8 Charter breach.

The s.24(2) Charter analysis regarding the admissibility of seized evidence was deferred.

The defendant, Simon Williams, faced charges of possessing child pornography.

He challenged the admissibility of evidence, alleging violations of his section 8 Charter rights due to delayed filing of Reports to a Justice (RTJs) and misleading Informations to Obtain (ITOs) for search warrants.

The court found that the RTJs were filed "as soon as practicable" given the investigating officer's workload and travel, and that any delay was minor and did not warrant exclusion of evidence.

The court also affirmed the validity of the ITOs, finding no misleading omissions or impermissible speculative inferences regarding the defendant's propensity to collect child pornography.

Consequently, the defendant's Charter claims were dismissed, the evidence was admitted, and guilty verdicts were entered on both counts.

Sanveer Singh brought a section 8 Charter application seeking to exclude a firearm and drugs seized during a search warrant execution at his residence, arguing the information to obtain (ITO) lacked reasonable grounds.

The court reviewed the ITO's sufficiency based on the Debot principles (compelling information, credible source, corroboration) and the Garofoli procedure for excising and amplifying the ITO, particularly given the reliance on a confidential informant.

Despite identifying some deficiencies and misleading phrasing in the ITO, the court found that, after excising irrelevant or misleading statements, there remained a sufficient basis for the issuing justice to have granted the warrant.

The application to set aside the search warrant and exclude the evidence was dismissed.

Terry Hemington brought a Charter application challenging the validity of a production order and subsequent search warrants (residence, cell phone, and Dropbox) obtained by police in an investigation into child pornography charges.

Hemington argued that the initial Information to Obtain (ITO) for the production order lacked sufficient grounds, leading to a violation of his Section 8 Charter rights.

The court reviewed the ITOs, applying principles of judicial review for search warrants, including the 'credibly-based probability' standard and the duty of full, frank, and fair disclosure.

The court found that despite some deficiencies in the drafting of the ITO, the issuing judicial officer had reasonable grounds to believe an offence had been committed, based on the reported image, the officer's expertise, and the 'Lolita' reference.

Consequently, the production order and subsequent warrants were deemed valid, and Hemington's Charter application was dismissed.

The accused brought a Charter application challenging the issuance of a tracking warrant, alleging violations of their s.8 rights due to misrepresentations and omissions in the Information to Obtain (ITO).

The application also included a s.7 claim for a stay of proceedings due to lost evidence (CCTV footage).

The court found that the affiant made significant misrepresentations and omissions regarding a confidential human source's criminal record and surveillance observations, particularly concerning a trip to Whole Foods characterized as "counter-surveillance" driving and an alleged "drug transaction." These misrepresentations were found to be intentional or reckless, tainting the reliability of the ITO.

Consequently, the court excised the misleading portions, rendering the warrant invalid.

The s.7 application for a stay was not granted, as the s.8 remedy was deemed sufficient at this stage.

The accused, Samuel Oduro, brought a pre-trial application to exclude cocaine evidence found in his car, alleging a violation of his Section 8 Charter rights.

He argued the search warrant was unlawfully obtained due to baseless generalizations, incomplete disclosure, failure to meet telewarrant preconditions, and insufficient information regarding the confidential informant's credibility.

The court dismissed the application, finding that while the affiant made minor errors, they were in good faith and did not mislead the issuing justice.

The court concluded that the information to obtain the warrant, as amplified and redacted, provided reasonable grounds for its issuance, rendering the search lawful and no Charter breach.

The applicant, Alden Nunes, brought an application to exclude evidence (guns, fentanyl, ecstasy) obtained via a search warrant, arguing a violation of his s. 8 Charter rights.

The court found that the Information to Obtain (ITO) for the search warrant lacked sufficient grounds to believe evidence would be found at the searched residence (21 Redvers Street, Whitby), as the police failed to establish Mr. Moore's current residency there or investigate beyond his outdated bail conditions.

Despite the absence of police bad faith, the Charter-infringing conduct was deemed serious due to the lack of investigation and the high expectation of privacy in a dwelling.

Applying the Grant factors, the court concluded that admitting the evidence would bring the administration of justice into disrepute, and therefore excluded the evidence under s. 24(2) of the Charter.

The accused, Jacob Olmstead, brought a pre-trial application challenging a search warrant for his residence, alleging a violation of his s. 8 Charter right against unreasonable search and seizure, and seeking the exclusion of evidence.

The challenge was based on claims that the warrant was overbroad, the Information to Obtain (ITO) lacked sufficient basis, and the affiant made material misrepresentations and omissions.

The court dismissed the application, finding that the ITO, despite being imperfectly written, provided a sufficient and reasonable basis for the warrant's issuance, and that the alleged flaws did not undermine the reasonable grounds.

The accused, Duval Smith, challenged the validity of CDSA search warrants, seeking to exclude seized evidence under s. 24(2) of the Charter, alleging a violation of his s. 8 rights.

The challenge was sub-facial, arguing the Information to Obtain (ITO) was misleading due to affiant carelessness, including erroneous source history, improper investigative file maintenance, and inadequate presentation of previous warrant information.

The court found the affiant careless but not intentionally misleading, and that despite the deficiencies, the ITO, when excised and amplified, still provided reasonable and probable grounds for the warrant's issuance based on compelling and corroborated confidential source information and surveillance.

The application to exclude evidence was dismissed.

The appellant appealed his convictions for drug-related offences and his sentence.

The primary issue on appeal was whether the trial judge erred in finding the Information to Obtain (ITO) for search warrants was sufficient and whether evidence obtained from a warrantless swab of his car door handle should have been excluded under section 24(2) of the Charter.

The Court of Appeal found that the warrantless swabbing of the car door handles, followed by chemical analysis, constituted an unreasonable search under section 8 of the Charter, requiring prior judicial authorization.

However, the Court upheld the trial judge's decision to admit the evidence under section 24(2), deferring to the trial judge's assessment of the Grant factors, particularly the police's good faith and full disclosure.

The Court also dismissed the appeal against sentence, finding the six-year consecutive sentence (resulting in a total of 16 years) was not demonstrably unfit given the serious nature of the drug trafficking enterprise and the appellant's conduct while on bail.