Trial judge not to re-try search warrant
By Mike Novakowski
A trial judge's role in reviewing a search warrant is not to decide whether they would have issued it but whether the justice who did could have done so.
By Mike Novakowski
A trial judge’s role in reviewing a search warrant is not to decide whether they would have issued it but whether the justice who did could have done so.
In R. v. Dionisi, 2012 ABCA 20, a police officer obtained information from a colleague who handled a reliable, confidential informant. He had previously provided information which assisted investigations, leading to search warrants and charges being laid. The informant trusted and wanted to help his handler and had been paid for information.
The informant told the handler Dionisi sold cocaine for around $1,500 per ounce and gave his height, weight, racial background, hair colour and style, address, phone number and vehicle; all this was independently corroborated. He also said he saw cocaine in Dionisi’s residence.
Police records revealed Dionisi was involved in a drug investigation some six years earlier. He had called 911 concerned about possible intruders in the basement. Police responded and found 287 grams of marijuana, scales and bundles of cash. Dionisi had no criminal convictions.
A justice of the peace issued a search warrant, which police executed late at night. They found Dionisi asleep in his bed and allowed him to get dressed. He was arrested, given his Charter warnings and handcuffed. He collapsed on the floor and, after paramedics determined he was “fine,” was taken to headquarters.
Police seized 691 grams of cocaine sorted into 24 baggies in a bag in a closet, 53.6 grams of cocaine in a bag in the kitchen, three cell phones, $435 cash, two scales, small plastic ‘sandwich’ bags and a large ‘ziplock’ bag containing about 200 grams of marijuana bud and other evidence, including Dionisi’s tenancy agreement.
At trial in Alberta Provincial Court the judge concluded that the Information to Obtain (ITO), less redacted material, did not provide reasonable grounds for the search warrant. In her view, it was unclear whether Dionisi’s trafficking activities and observations of drugs in his residence were the informant’s personal knowledge or information obtained from someone else. “They may well be no more than rumour or gossip,” she said.
She also found the ITO did not say whether the information was dated or more recent and relevant. Furthermore, none of the independent corroboration related directly to the illegal drug activity. Finally, the previous drug related investigation involving Dionisi was unhelpful since he wasn’t charged.
Without reasonable grounds, the search and seizure breached s. 8 of the Charter. However, the judge admitted the evidence under s. 24(2). Dionisi was convicted of possessing cocaine and less than three kilograms of marijuana for the purpose of trafficking but appealed to the Alberta Court of Appeal.
In Dionisi’s view, the evidence should have been excluded. The Crown submitted that the trial judge was correct in admitting it but should not have found a Charter breach in the first place.
S. 8 Charter
The appeal court agreed that the trial judge made a mistake in finding a breach. A search warrant is presumed to be valid and a trial judge’s function is not to substitute their opinion for that of the authorizing judge. The test for determining validity is not to decide if they would have necessarily issued the warrant on the basis of the ITO, but whether it could have been authorized by a judge acting judicially. In looking at the test, the court stated:
In a voir dire as to a section 8 Charter breach, the onus is not upon the claimant to merely show that there were defects in the ITO; the claimant must establish the breach of section 8 on a balance of probabilities. This can be done only by showing that it is likely that the search warrant would not have issued based upon the content of the ITO. It is not enough to persuade the trial judge that she would not have been inclined to issue the warrant on the grounds thus provided. The trial judge must be satisfied that the warrant is invalid, not that the trial judge would not have authorized it. The trial judge does not re-try the warrant (para 20).
A search warrant will issue on the standard of a credibly-based probability, having regard to the whole of the circumstances, not examination of individual circumstances in isolation. Even flaws in the ITO, such as inaccurate information or the non-disclosure of a material fact, will not always render the information inadequate to meet the reasonable grounds standard.
Confirmatory information in the ITO related to details other than actual observations of drugs in a house or trafficking still has value on the totality of the circumstances approach. The informant had provided reliable information in the past and had a relationship with the handler. Providing specific details about non-offence particulars was still consistent with the informant providing information on which reliance could be placed. The informant did not have a grudge against Dionisi but wanted to work with the police.
As for the recency of the information, “there is no rule as to how recent information has to be in order to be relevant,” the court noted. “In any event, the ITO alleged the information in the present tense. These averments provided no room for the conjecture that the information provided wasn’t recent enough to be relevant.”
Furthermore, the trial judge stated that the ITO was unclear as to whether the informant learned the information or saw it personally – but reading the ITO in a practical, non-technical, common-sense manner, the court found there was no basis to assume the information was second-hand. Even if it were, the informant’s information had been found reliable in the past.
Finally, the information was more than mere rumour or gossip. It was more than conclusory in nature; it provided specific detail of the manner and price at which the accused was allegedly selling cocaine.
A judge’s decision to admit evidence under s. 24(2) is deferential as long as the proper factors are considered and they have not made any unreasonable findings. In this case, there was no basis to interfere with the trial judge’s admission of the evidence.
Dionisi’s appeal was dismissed and his convictions stood.
Further details of this case were obtained from 2011 ABPC 63.