Her Majesty the Queen v. Paryniuk

[Indexed as: R. v. Paryniuk]

Ontario Reports

Court of Appeal for Ontario

Watt, G.J. Epstein and van Rensburg JJ.A.

February 1, 2017

134 O.R. (3d) 321 | 2017 ONCA 87

Case Summary

Charter of Rights and Freedoms — Search and seizure — Search warrant

The accused argued that the information to obtain ("ITO") did not note that prior charges had not resulted in convictions and relied uncritically upon information provided by a sub-affiant. The trial judge correctly found the existence of a residual discretion to quash an otherwise-valid search warrant where police conduct has subverted the pre-authorization process. However, a high standard is required to invoke this residual discretion. The affiant was not required to undertake their own investigation of the sub-affiant's information absent indications that something was amiss. The ITO used accurate terms "charged" and "involved" but should have expressly noted the absence of prior convictions. The trial judge did not err by referring to the standard for exercising residual power to exclude fruits of a properly issued search warrant as "clearest of cases," as the effective result of excluding the fruits of the search would have been to hollow out the Crown's case. Appeal dismissed.

Facts

The accused was charged with several offences after the execution of a search warrant at a residence uncovered a marijuana grow-op and a handgun. He brought an application at trial to quash the search warrant and exclude the evidence found in the residence under s. 24(2) of the Canadian Charter of Rights and Freedoms, arguing that the warrant was invalid and that even if it was valid, the police conduct in seeking the warrant was so subversive of the pre-authorization process that the warrant should be quashed to protect that process.

After excising certain parts of the information to obtain the search warrant, the trial judge was satisfied that there remained sufficient credible and reliable evidence on the basis of which the search warrant could have been issued. He found that the court has a residual discretion to quash an otherwise-valid search warrant where there has been a subversion of the authorization process. He noted the uncritical reliance by the affiant of the ITO on information from a sub-affiant that the residence was unfurnished, and the inclusion in the ITO of prejudicial information from the police Enterprise Case Occurrence Processing System ("E-COPS") about previous charges against the accused which the affiant knew, but did not state, failed to result in convictions. He concluded that those failings did not amount to such a subversion of the process that the warrant should be quashed. The application was dismissed, and the accused was convicted. The accused appealed.

Decision

Held: The appeal should be dismissed.

The trial judge did not err in finding that the court has a residual discretion to set aside an otherwise-valid warrant where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like. The standard to be met to invoke that discretion is high. What happened in this case fell short of what is required to engage the residual discretion.

The trial judge found as a fact that what occurred did not subvert the pre-authorization process. That finding was entitled to deference. The trial judge's occasional reference to "abuse of process" was not misplaced and did not reflect error. While reasonable people might differ about characterizing the accused's argument as a claim of abuse of process, the claim reduced to an assertion that the state conduct risked undermining the integrity of the pre-authorization process. Considered in that way, the claim invoked the language of the residual category of abuse of process.

With respect to the first aspect of the police conduct on which the trial judge focused, the affiant's "uncritical acceptance" of information from a sub-affiant that the residence was furnished: a sub-facial challenge turns on what an affiant knew or ought to have known when the ITO was sworn. The accuracy of the ITO is tested against the affiant's reasonable belief at the time, not the ultimate truth of what is asserted. It was also debatable whether the affiant could be faulted for accepting what his police colleague told him. An ITO may be based on hearsay, and affiants do not need to conduct their own investigation unless the affiant sees signs that the sub-affiant has been misleading them, omitting material information or there are other signs that things are amiss with the information the sub-affiant provides.

With respect to the inclusion of the E-COPS information in the ITO: while the affiant's failure to plainly say that the accused had never been convicted of a criminal offence was a serious deficiency, the descriptors "involved" and "charged" were clearly displayed, and the obvious lack of reference to "convictions" could scarcely have gone unnoticed. It was still a serious deficiency not to explicitly acknowledge the lack of prior convictions.

Finally, the accused's immediate goal on the application was to set aside the warrant, potentially leading to the exclusion of evidence that was essential to the Crown's case. In those circumstances, the "clearest of cases" standard may not have been inappropriate. In any event, mention by the trial judge of the "clearest of cases" standard did not prejudice the accused, as the trial judge found that the factual predicate for the residual discretion to set aside the warrant had not been met. That finding was not tainted by any reference to the "clearest of cases".

The Background Facts

The Trial Proceedings

The trial proceeded as a blended voir dire and trial. The accused invoked the procedural course first charted in R. v. Garofoli and advanced a sub-facial challenge to the validity of the search warrant. Trial counsel on both sides agreed that the author of the information to obtain (the "ITO") and a police officer who had provided information included in the ITO (the affiant and sub-affiant) could be cross-examined on the application.

The ITO

The affiant was a detective constable, a member of the Toronto Police Service attached to the Clandestine Laboratory Team of the Toronto Drug Squad. His principal duty was the investigation of marijuana grow-ops.

The ITO was 45 pages long. It began by setting out the qualifications of the civilians and other police officers from whom the affiant had received information. The ITO also described the various databases from which the affiant had obtained information and the nature of the information recorded in each. The affiant then provided a chronology of the steps taken during the investigation over a period of about ten days leading up to the application for the warrant. Included were observations made during surveillance of the premises at different times of the day and night. These observations included the general appearance of the house and property, as well as window and door coverings, roofing and a view into the interior from the outside.

A substantial part of the ITO was taken up by information from the local utility that showed hydro consumption at the premises over a 20-month period. The usage was displayed in several bar graphs which demonstrated 12-hour cycles typical of a marijuana grow-operation. The consumption was twice the amount found for comparable properties in the same area.

In his description of the investigative steps taken, the affiant included information from the police Enterprise Case Occurrence Processing System ("E-COPS"). This database revealed a total of 14 "hits" in relation to the accused. The entries included reference to drug and firearm offences, as well as driving offences and provision of false identification. In many instances, the terms "Involved" and "CHARGED" appear. There is no reference to the disposition of any charges.

Towards the end of the ITO, the affiant set out the grounds for his belief that a search warrant should be issued for the premises. Those grounds, in summary form, were:

• the volume and pattern of hydro consumption;
• the window and door coverings;
• the lack of movement and furniture in the house;
• registration of the accused's vehicle elsewhere than a residential property;
• the accused's attendance at the house;
• the officer's belief that the accused resided elsewhere than the premises;
• the link between the accused and the hydro account holder.

The Search Warrant

The search warrant was issued on September 19, 2011. It authorized police to search for controlled substances, associated items and documents indicative of ownership or occupancy of the house.

The Trial Judge's Rulings

The trial judge made two rulings arising out of the Garofoli application advanced at trial.

First Ruling

In his first ruling, the trial judge excised any of the contents of the ITO that he considered irrelevant, improper, inaccurate or misleading. When he considered the remaining contents of the ITO, the trial judge was satisfied that there remained sufficient, credible and reliable evidence on the basis of which the search warrant could have been issued. As a result, the trial judge held that the warrant had been properly issued, the search conducted under lawful authority and a Canadian Charter of Rights and Freedoms s. 24(2) analysis unnecessary to determine the admissibility of the seized items as evidence.

At the conclusion of his first ruling, the trial judge invited further submissions from counsel on whether "the impropriety of tendering criminal allegations in an ITO with their potential to jeopardize fairness and justice" should be addressed in some way.

Second Ruling

In his second ruling, the trial judge found he could not conclude that what had happened here was such a subversion of the process to obtain warrants to search that the warrant should be quashed. In the result, the warrant remained valid and the evidence obtained by its execution was admissible at trial. By agreement, convictions were entered on several charges.

Grounds of Appeal

The accused takes no issue with the trial judge's first ruling. He acknowledges that the trial judge was correct:

(i) to excise the irrelevant, improper, inaccurate and misleading references from the ITO; and

(ii) to decide that what remained in the ITO afforded reliable evidence that might reasonably be believed on the basis of which the search warrant could have been granted.

The accused's focus is on the second ruling. His challenge fastens on the standard of proof the trial judge applied in deciding whether the warrant should be set aside because of a subversion of the authorization process. The error, he says, consisted of adopting a "clearest of cases" standard, applicable where a stay of proceedings is sought for an abuse of process, instead of deciding whether the police conduct in seeking the warrant was so subversive of the process that the warrant should be quashed to protect the process and the preventative function it serves.

Ground #1: The Applicable Standard of Proof

The Trial Judge's Reasoning

The trial judge began his second ruling by identifying the issue he was required to decide:

So the issue here is has there been an abuse of process that has reached the level of being subversive to the extent that the defendant is entitled to some other relief under the Charter or at common law as a result of such a finding.

The trial judge then identified what he considered erroneous information included in the ITO. In doing so, he considered the evidence adduced on the Garofoli application through cross-examination of the affiant and sub-affiant. The deficiencies included:

(i) the affiant's uncritical acceptance of information from the sub-affiant, a fellow police officer, especially that no furniture was visible in the premises when the sub-affiant admitted at trial that she could only see two feet into the interior of the house from an adjacent property;

(ii) the affiant's lack of understanding of his obligations to make full, fair and frank disclosure of all material facts to the issuing justice, especially the obligation to be fair;

(iii) the intentional inclusion of the E-COPS information about prior incidents in which the appellant had been investigated and charged with cognate drug and firearms offences, but never convicted of anything, a fact the affiant knew; and

(iv) the affiant's admission that he understood his obligation to make full, fair and frank disclosure of all material facts as including the submission of information he knew to be false.

The trial judge then turned to his authority to set aside a warrant where the conduct of the police was subversive of the search warrant process. He described that authority in this way:

I accept there is a residual discretion sounding in "abuse of process" that could result in the quashing of a warrant consistent with the law of this province as set out by Justice Rosenberg in Regina v. Vivar. Such a result can obtain when the inclusion of information in an ITO is so subversive of a search warrant process as to effectively amount to an abuse of process and require that the warrant be quashed.

In my view there is residual discretion and the case law would suggest that the residual discretion should only be exercised in the clearest of cases.

Despite the instances of inappropriate police conduct he had earlier identified, the trial judge was not prepared to conclude that the search warrant process had been subverted. He said:

Now as problematic as these instances of inappropriate police conduct are I have come to the conclusion that I cannot make a determination on the basis of case authorities that these references amount to a subversion or corruption of the process. It shouldn't have happened. I can't put it as high as a corruption of the judicial process.

After referring to the decision of the British Columbia Court of Appeal in R. v. Sismey and authorities subsequent to its release, the trial judge concluded that a nuanced consideration of all the circumstances was required, including an assessment of "how the warrant looks when one excises these improper references made by the affiant". He expressed his conclusion in these terms:

I have come to the conclusion that the Court has to take into account all the circumstances, including the balance of the warrant and it makes it much more difficult a decision to conclude that there is a representation of the clearest of cases of an abuse of process where the information to obtain the warrant is substantial enough to adequately support reasonable and probable grounds with all of the contentious and problematic evidence excised.

It seems to me that not only does the clearest of cases analysis refer to the seriousness of the conduct of the police officer, it also refers to the overall context -- the overall preparation of the warrant, the totality of the information contained and the conclusion the Court comes to as whether it's constitutionally satisfactory.

I accept here in conclusion that there is a residual power to quash for an abuse of process but on balance I can't conclude that this is such a subversion of the process as to constitute the clearest of cases and a point where the resulting warrant should be quashed.

I am also mindful of the fact that the references complained about are problematic references did not find their way into the final conclusions of the ITO, particularly the charges that the defendant was facing and I am also assuming a level of intelligence on the part of the Justice of the Peace officer, the Justice of the Peace who . . . a judicial officer who, in today's world, in my view could drill down to the essence of the warrant and not be panicked into an authorization by improper and overheated rhetoric in the ITO.

Arguments on Appeal

The accused advances several arguments.

First, the accused says that the trial judge erred in applying the "clearest of cases" as the standard of proof to be met by an accused who seeks to set aside a warrant on the basis advanced here. The relevant standard, the accused argues, is whether the investigative conduct in seeking the warrant was so subversive of the pre-authorization process that the warrant should be set aside to protect that process and the preventative function it serves. The "clearest of cases" standard is reserved for stays of proceedings sought as a remedy for an abuse of process. What is sought here as a remedy is that a search warrant be quashed and thereafter that evidence be excluded under s. 24(2) of the Charter.

Second, according to the accused, the proper standard to apply is whether, in all the circumstances, the investigative conduct was so subversive of the authorization process that the warrant should be quashed despite satisfaction of the conditions precedent for its issuance. To determine the extent of any subversion of the pre-authorization process, a judge should consider whether the inclusion of erroneous information in the ITO was deliberate or inadvertent. While inadvertence may be remedied through amplification, deliberate falsehoods justify quashing the warrant.

Third, the accused says that the conduct of the affiant, as found by the trial judge, was subversive of the pre-authorization process. The uncritical acceptance of information from the sub-affiant of the unfurnished (thus unoccupied) nature of the house. The inclusion of "spectacularly prejudicial" and misleading information about previous charges of related criminal activity and the knowledge that no convictions had resulted.

Unlike the traditional inquiry pursuant to Garofoli and R. v. Araujo, which looks to the adequacy of the evidentiary predicate before the authorizing justice and countenances restorative remedies like amplification, the second inquiry has as its exclusive focus the integrity of the pre-authorization process. That the evidentiary predicate may be adequate to sustain issuance of the warrant has nothing to do with, hence no say in connection with the second inquiry. In this case, the second inquiry should have resulted in the warrant being set aside.

In addition, the accused continues, the second inquiry should not be confined to instances of intentional state conduct. Negligent state conduct that subverts the pre-authorization process should have an equal place in the second inquiry. After all, what should matter is that the integrity of the pre-authorization process was subverted, not how or why the subversion occurred. This formed no part of the trial judge's analysis or conclusion.

Crown's Response

The respondent contests the availability of the discretion the accused invokes. According to the respondent, there is but a single test applicable to a review of an ITO said to contain deliberate or fraudulent misstatements. And the test is that of Garofoli and Araujo, that is to say, whether there was sufficient reliable evidence that might reasonably be believed on the basis of which the enabling authority could have been issued.

The respondent says that controlling precedent does not permit of any residual discretion to set aside an otherwise properly issued search authority because the supportive ITO contains deliberate or fraudulent misstatements. The Garofoli analysis protects the integrity of the pre-authorization process.

The Garofoli court, the respondent argues, made it clear that the sole impact of the existence of fraud, non-disclosure, misleading evidence and new evidence is on the determination of whether there continues to be any basis for the decision of the authorizing judge. Inadvertent errors or omissions may be corrected by amplification. Deliberate or fraudulent misstatements require excision, cannot be amplified and form no part of the decision on the adequacy of the evidentiary predicate. That Garofoli applies to deliberate falsehoods is confirmed in the later decision in R. v. Bisson.

The respondent acknowledges that some courts, including this court, have suggested that a reviewing judge has a residual discretion to quash an otherwise valid search authority on the basis that a deliberate misstatement in the ITO is so subversive of the pre-authorization process that the order should be set aside to protect the integrity of that process. But, the respondent continues, these obiter suggestions are unsupported by Araujo and its misplaced reliance on R. v. Morris.

According to the respondent, the Araujo court's reference to Morris was in connection with the need to follow a contextual approach, a consideration of all the circumstances, in deciding whether, after excision and amplification, sufficient reliable information remains to support the issuance of the search authority. The existence of a residual discretion, the respondent says, is inconsistent with the standard put in place by the decisions in Garofoli and Araujo and redundant since each of those decisions protects the integrity of the authorization process. And what is more, each makes it clear that the sole impact of fraud, non-disclosure, misleading evidence and new evidence is to determine whether there remains a basis for the decision of the authorizing judicial officer.

Further, the respondent submits, the residual discretion could only be rooted in the residual category of abuse of process since trial fairness is not implicated. But the residual category has a prospective focus. It does not redress past wrongs. And that is what the accused seeks here.

The respondent advances an alternative argument in the event that we are persuaded of the existence of the residual discretion for which the accused contends. Any such discretion must be rooted in the doctrine of abuse of process. After all, what is subversion of the process but abuse of process by another name? The residual category of abuse of process invokes s. 24(1) of the Charter as its remedial wellspring. And where what is sought is a remedy that would effectively end the prosecution -- the functional equivalent of a stay of proceedings -- the clearest of cases is the appropriate standard and is not met here.

Governing Principles

The Garofoli Application

A trial judge who has to determine whether a search was authorized by law must decide whether the conditions precedent to the search authority on which reliance is placed have been satisfied. To do this, the trial judge conducts a hearing -- a Garofoli application. At that hearing, the judge examines the material before the authorizing judge or justice, material which may differ from the original because portions have been redacted, for example, to protect confidential informer privilege. Evidence at the Garofoli hearing may persuade the trial judge that parts of the original material should be excised or amplified. In the end, the record becomes fixed for review purposes.

What the trial judge is required to decide on the Garofoli application is whether, based on the record before the authorizing judge or justice, as amplified on the Garofoli review, the authorizing judge could have granted the enabling order. The judge must decide whether, after excision and amplification, there was reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued. The onus of establishing that the search authority was improvidently granted rests upon the accused.

Prior to Garofoli, fraud, non-disclosure, misleading evidence and new evidence were prerequisites to review of the enabling order. But thereafter, the "sole impact" of the same things was to determine whether there remained any basis for the decision of the authorizing judge or justice.

The assessment required by Garofoli is contextual. What is involved is an analysis to determine whether there remains sufficient reliable information upon which the search authority could be grounded. This approach appropriately balances the need for judicial finality and the need to protect systems of pre-authorization. In this analysis, facts originally omitted are also considered.

Essential features of the Garofoli application are excision and amplification. Erroneous information is excised from the ITO and disregarded in determining whether the essential evidentiary predicate remains. But errors made in good faith may be corrected by amplification through the introduction of evidence that was available when the ITO was prepared.

A final point concerns the standard against which alleged errors or omissions in the ITO are tested. The affiant's assertions are tested against the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated.

The Discretion to Set Aside Otherwise Valid Search Authority

The foundational authority that waded into the procedural quagmire and dredged up a single review mechanism -- Garofoli -- makes no reference to any residual discretion to set aside a search authority otherwise found valid. Not only does Garofoli fail to make a place for such a residual discretion, in express terms or by necessary implication, it also tends to foreclose such discretion by assigning the sole impact of fraud, non-disclosure, misleading evidence and new evidence to a determination of whether there continues to be any basis for the decision of the authorizing judge or justice.

A decade after Garofoli, the standard of review for issuance of authorizations to intercept private communications returned to the Supreme Court of Canada in Araujo.

In Araujo, the trial judge found that investigators had acted in bad faith. He also found that the affidavit had failed to establish the investigative necessity requirement of s. 186(1)(b) of the Criminal Code. As a result, he set aside the authorization. The trial judge then went on to exclude all the evidence, directly or indirectly originating from the authorization, on the ground that the police had acted in bad faith and that the courts could not condone such conduct by admitting its evidentiary fruits.

The British Columbia Court of Appeal unanimously set aside the acquittals entered at trial. The court rejected the trial judge's application of the standard of review to the enabling authorization and of the investigative necessity test.

The Supreme Court of Canada considered first whether the contents of the supportive affidavits, as amplified on the review, satisfied the investigative necessity requirement of s. 186(1)(b). The court then turned its attention to the standard of review to be applied to wiretap authorizations, including amplification. The court reiterated its prior injunction against rehearing and emphasized the contextual nature of the inquiry to determine whether, after excision and amplification, there remained some evidence that might reasonably be believed on the basis of which the authorization could have issued.

After referring to some authorities that emphasized the need for a contextual analysis in authorization review, the court continued:

The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge.

The accused invokes this passage as authority for the order he seeks. The passage in Morris is obiter, since the court was dealing with errors committed in good faith. And the reference to Morris in the Supreme Court of Canada appears to be as illustrative of the need for a contextual analysis in authorization review, not as an express adoption of the residual discretion to set aside an authorization for conduct subversive of the pre-authorization process.

The authority described in Morris appears limited to fraudulent and deliberate errors. It requires a contextual analysis, an examination of all the circumstances. And a conclusion that the police conduct was so subversive of the pre-authorization process that the search authority issued must be set aside to protect the process and the preventative function it serves.

The Morris court summarized this principle in this way:

Fraudulent or deliberately misleading material in the Information does not automatically invalidate the warrant. However, it may have this effect if the reviewing judge concludes, having regard to the totality of the circumstances, that the police approach to the prior authorization process was so subversive of it that the warrant should be invalidated. In addition, fraudulent and deliberately misleading material should be excised from consideration.

This passage suggests that where the police approach to the prior authorization process was so subversive of that process, the warrant should be invalidated and the fraudulent and deliberately misleading material excised from consideration. Excision seems redundant if the warrant has been invalidated because of the subversive nature of the police conduct.

Despite its reference to the decision in Morris, including the passage about a residual discretion, the Araujo court made it clear that an approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems.

In British Columbia, the courts recognized a similar authority to quash a search warrant where the issuing judicial officer had been intentionally misled. The search authority is quashed to avoid the corruption of the judicial process that would result if deliberate efforts to mislead judicial officers in the discharge of their judicial functions could nonetheless lead to valid judicial orders.

In subsequent cases, however, the British Columbia Court of Appeal has acknowledged that Sismey has been overtaken by Garofoli and Araujo. In the result, the Bacon court concluded the trial judge's role in reviewing the validity of a search warrant is to consider whether the material filed in support, as amplified on review, could support the issuance of the warrant. Evidence of fraud, material non-disclosure or misleading information are all relevant to this inquiry, but their sole impact is to determine whether there remains a continuing basis to support the warrant.

The Bacon court did acknowledge that there may be a residual discretion to strike down a warrant for abuse of process.

In this province, courts, including this court, appear to have recognized a discretion to set aside a warrant, despite the presence of reasonable and probable grounds for its issuance, where non-disclosure was for some improper motive or to mislead the issuing judicial officer. Where an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside. But the threshold for setting aside the warrant in these circumstances is high. In at least one brief endorsement, this court has described the conduct necessary to engage this discretion as "so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed".

Two Points About the Remedy

The first has to do with abuse of process. Where state conduct poses no threat to trial fairness, but risks undermining the integrity of the judicial process, the conduct falls within the residual category of the abuse of process doctrine. The goal of the remedy is not to provide redress for a past wrong done to an accused, but to determine whether some remedy short of a stay of proceedings will adequately disassociate the justice system from the impugned state conduct going forward.

At trial, the accused framed the remedy he sought as the exclusion of evidence under s. 24(2) of the Charter for an infringement of s. 8. But when he took up the judge's invitation to challenge the warrant on the basis of a subversion of the pre-authorization process, the application became the functional equivalent of an application to terminate the prosecution for an abuse, namely, a subversion of the process. In those circumstances, the authorities limiting the availability of a stay of proceedings to the clearest of cases may be applicable.

The Principles Applied

The Existence of the Authority

I agree with the accused that a trial judge has a residual discretion to set aside a properly issued search warrant or authorization where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search authority. In this case, however, I am satisfied that the circumstances do not justify such an order and that the trial judge was right to refuse it.

Counsel for the respondent is on firm ground when he says Garofoli recognizes no such discretion. But Garofoli is not the last word on the subject. In Araujo, the court followed Garofoli but emphasized a reliability component in the information provided to the issuing judge or justice. When the dust settles after excision and amplification, the Araujo court said, there must be a residuum of reliable evidence which might reasonably be believed on the basis of which the search authority could have been issued.

The respondent may also be right about the Araujo court's use of the decision in Morris. Araujo contains no explicit adoption of the residual discretion of which Cromwell J.A. wrote in Morris. Nor for that matter, a consideration of how such a discretion squares with the Garofoli edict that the sole impact of fraud and non-disclosure is to determine whether there continues to be any basis for the decision of the authorizing judge.

What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like. Courts of appeal in other provinces have reached the same conclusion.

These same authorities, both in Ontario and elsewhere, describe the standard to be met to invoke this discretion as high. Indeed, some require that the conduct amount to an abuse of process.

The Merits of the Claim

Several reasons persuade me that what happened here falls short of what is required to engage the residual discretion to set aside a search authority despite satisfaction of the conditions precedent required for its issuance.

First, the absence of the required finding. Critical to the application of the authority the accused recruits is a finding that the police conduct amounted to a subversion or corruption of the pre-authorization process. Not only was there no such finding in this case, but the finding of the trial judge was that what occurred did not subvert the pre-authorization process. Once this indispensable factual predicate falls away, the residual discretion is stilled.

Second, appellate deference. The finding of the trial judge that the police conduct did not amount to a subversion of the pre-authorization process is largely, albeit not perhaps exclusively, a finding of fact. It is the product of a contextual analysis of all the circumstances. The trial judge was there. We were elsewhere. This is what trial judges do. And why we defer to their findings. As I do here.

Third, abuse of process. I am not persuaded that the trial judge's occasional reference to "abuse of process" is misplaced or reflects error in this case. The accused accepts that he must demonstrate that the police conduct subverted the pre-authorization process in order to bring his case within the sweep of the residual discretion. Subversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process. In plain terms, an abuse of the pre-authorization process by non-disclosure or misleading disclosure or their like. Mere mention of the phrase "abuse of process" does not reflect self-misdirection. After all, this court in Vivar considered whether irrelevant and improper references in an ITO were "so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed".

Fourth, a related point about abuse of process. While reasonable people may differ about characterizing the argument advanced here as a claim of abuse of process, the claim reduces to an assertion that the state conduct risks undermining the integrity of the pre-authorization process. Considered in this way, the claim evokes the language of the residual category of abuse of process.

Fifth, the conduct in this case. In his ruling, the trial judge focused on two aspects of the affiant's conduct:

(i) uncritical acceptance of the observations of a sub-affiant, a fellow police officer, about the apparent absence of furniture in the house; and

(ii) the affiant's failure to correct the misleading impression left by the "14 hits" associated with E-COPS, given that, as the affiant well knew, the accused had never been convicted of a criminal offence.

A sub-facial challenge turns on what an affiant knew or ought to have known when the ITO was sworn. The accuracy of the ITO is tested against the affiant's reasonable belief at the time, not the ultimate truth of what is asserted. In connection with the sub-affiant's observations, it is also debatable whether the affiant could be faulted for his "uncritical acceptance" of what his police colleague had told him. An ITO, like an affidavit in support of an application under Part VI of the Criminal Code, may be based on hearsay. Although affiants may not ignore signs that fellow officers may be misleading them, or omitting material information, in the absence of some indication that something is amiss, affiants do not need to conduct their own investigation.

The affiant's failure to plainly say that the accused had never been convicted of a criminal offence is a serious deficiency. That said, the descriptives "Involved" and "CHARGED" were clearly displayed, as well the obvious lack of reference to "CONVICTED" or "convictions" could scarcely have gone unnoticed.

The ITO contained a section describing the various police databases referred to by the affiant. The description of the E-COPS system read: "The E-COPS system is designed to provide an electronic record of incidents and occurrences investigated or responded to by a member of the Toronto Police Service." On the contrary, the description of the Canadian Police Information Centre ("CPIC") database noted that information from that system included records of "Charged Persons . . . and Criminal Records." That the E-COPS system included records arising from mere criminal charges was clear from the summaries.

Sixth, the ultimate remedy. The accused's immediate goal on the Garofoli application was to set aside the warrant that yielded the evidence that formed the case for the Crown. This would provide a pathway to evidentiary exclusion which the accused knew would crater the case for the Crown. In these circumstances, the standard "clearest of cases" may not have been inappropriate.

In Jageshur, at trial the accused successfully sought exclusion of evidence under s. 24(2) of the Charter in relation to an alleged s. 7 breach. The excluded evidence formed the core of the Crown's case. In reversing the trial decision on appeal, Doherty J.A. noted that, "[a]lthough the remedy was framed in terms of the exclusion of evidence, it was in reality an application to terminate the prosecution" (at para. 69). In those circumstances, he held, "[t]he case law limiting the availability of a stay of proceedings to the 'clearest of cases' would have had direct application to that decision" (at para. 69). In this case, the trial judge's decision occurred in an evidentiary milieu not dissimilar to the one in Jageshur. I do not think that the trial judge's reference to the "clearest of cases" can be said to be reversible error.

Finally, the "clearest of cases" and remedial choice. While it is true that the "clearest of cases" standard refers to the remedial aspect of the abuse of process doctrine -- whether a stay of proceedings should be entered -- mention of it by the trial judge caused the accused no prejudice. The trial judge found that the factual predicate for the residual discretion to set aside the warrant had not been met. This finding was not tainted by any reference to the "clearest of cases". Without it, the warrant could not be quashed. The trial judge never reached the issue of remedy. Thus, he did not invoke the "clearest of cases" standard as a basis upon which to refuse the remedy.

Conclusion

For these reasons, I would dismiss the appeal.

Appeal dismissed.

Notes

1 Reported as R. v. Cheng (2010), 87 W.C.B. (2d) 230 (B.C.C.A.).