Our final entry in this 3-part series on warrants involves the part of the process where defense lawyers come into play. We are now in court and want to challenge the lawfulness of the warrant.
There are a variety of specific technical steps that need to be taken in obtaining a warrant. If any of these are overlooked that may open the door to a finding that the warrant was invalid. For the blog we will focus on challenging whether there were reasonable grounds for the warrant to issue as this is the most common challenge.
A search warrant is presumed to have been lawfully issued. It will be up to the defence to convince the court that there weren’t grounds for the search. The court will ask whether the warrant could have issued, not whether it should have issued. This is an important distinction. The court, on review, does not substitute its judgment for that of the issuing justice. The court simply asks if it was possible to find sufficient grounds to issue the warrant.
Generally there are two types of challenges to a search warrant. The first is referred to as a facial challenge. This is the simpler of the two. It simply involves reading the ITO and asking whether there was enough evidence presented to show that the warrant could have issued.
The second form of challenge, referred to as a sub-facial challenge, is more complicated. This involves looking behind the words in the ITO. Often this form of challenge involves making an application to cross-examine the affiant. The Supreme Court of Canada has explained that to get to cross-examine the affiant you will have to show the judge that there is the possibility that “cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.”
Cross-examination will often be granted when there is the appearance that the affiant may not have complied with their obligation to make full and frank disclosure of the facts of the investigation.
As an aside, even if an affiant has been inaccurate or misleading in the drafting of the ITO that does not necessarily mean the warrant will be found to be invalid. The trial judge will still consider whether what remains after the improper stuff has been removed could have been enough.
Another aspect to a sub-facial challenge is when information in the ITO has been obtained itself unlawfully. If police have gathered evidence as part of their investigation that forms part of the basis for the warrant but that evidence was obtained in violation of the Charter it will be excised (removed) from the ITO on review. The trial judge will then consider whether the warrant could have issued on the basis of what’s left.
If you get through all that and the trial judge finds that there were insufficient grounds to support the issuance of the warrant the resulting search is a breach of s. 8 of the Charter. Then you have to argue for the exclusion of evidence under s. 24(2) but that’s a topic for another day.