Challenging the Validity of a Search Warrant


At trial, the defence may challenge the constitutionality of a search conducted under the authority of a search warrant by demonstrating that the contents of the affidavit relied on to obtain the warrant could not justify its issuance (this affidavit is known as the Information to Obtain or ITO).  If the challenge is successful, the search is treated as warrantless, rendering it unreasonable and contrary to s. 8 of the Charter.  The defence must then demonstrate that the fruits of the search should be excluded under s. 24(2) of the Charter: 

 R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8.

On a challenge to the validity of the warrant, the reviewing judge does not make a de novo assessment of the ITO’s contents.  Rather, he or she decides whether those contents provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place: 

See R. v. Morelli, 2010 SCC 8, at para. 40; Garofoli, at p. 1452; Pires, at para. 8; R. v. Hosie, [1996] O.J. No. 2175, at para. 18 (C.A.); and Reid, at para. 73.

A Facial Challenge to the Validity of a Search Warrant

Challenges to the validity of a warrant are described as facial or sub-facial. 

On a facial challenge, counsel argues that the ITO, on its face, does not provide a basis upon which the issuing justice, acting judicially, could issue the warrant.  

A Sub-Facial Challenge to the Validity of a Search Warrant

A sub-facial validity challenge involves placing material before the reviewing judge that was not before the issuing justice.  On a sub-facial challenge, counsel argues that the material placed before the reviewing judge should result in the excision of parts of the ITO that are shown to be misleading or inaccurate.  The warrant’s validity must then be determined by reference to what remains in the ITO.  On a sub-facial challenge, counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant: 

See Morelli, at paras. 40-41; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 37-38; Crevier, at para. 74; and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 57.

The reviewing judge, when determining whether the warrant should have been granted, must consider the totality of the circumstances as set out in the ITO and as amplified by any additional material placed before him or her.  

Confidential Informers
When the information to support the warrant comes almost entirely from a confidential informer (CI), the totality of the circumstances inquiry focuses on three questions:

· Does the material before the reviewing judge demonstrate that the CI’s information was compelling? 

· Does the material demonstrate that the CI was credible? 

· Does the material demonstrate that the CI’s information was corroborated by a reliable independent source? 

See R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168; Hosie, at para. 12; and R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at paras. 16-18.

The first question addresses the quality of the CI’s information.  For example, did he purport to have first-hand knowledge of events or was he reporting what he had been told by others?

The second question examines the CI’s credibility.  For example, does he have a long record which includes crimes of dishonesty, or does he have a motive to falsely implicate the target of the search?  

The third question looks to the existence and quality of information independent of the CI that offers some assurance that the CI provided accurate information. 

The answers to each of the questions are considered as a whole in determining whether the warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the CI’s credibility:  see Crevier, at paras. 107-108.
                                                                                                  R. v. Shivrattan, 2017 ONCA 23

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