Preuve du mandat de perquisition

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• < Fouilles, perquisitions et saisies
• < mandats de perquisitions

General Principles

Communications with the justice

Any communications between the affiant and the authorizing justice cannot form part of the grounds to support the issuing of a warrant.

First-hand Observations

Information supporting a warrant that is collected by civil trespass may not invalidate a warrant. An officer can include in the ITO observations made when entering into an apartment building without permission. The same goes for entering into a commercial building without permission. However, an officer may not rely on information gained by peering into windows of a building that they cannot enter.

The public areas of apartment buildings, such as the lobby, hallways or corridors, despite being behind a security door, are public areas to those who have implied permission to enter when they are "buzzed in." There is a diminished, if any, privacy in the hallway of an apartment building.

See also Reasonable Expectation of Privacy

Statement by Accused

Where the ITO contains a statement from the accused, the document must also show that the accused was properly cautioned and given a right to counsel.

The statement cannot be involuntary.

A statutorily compelled statement of the accused cannot be used for the purpose of an ITO.

Criminal Records

A copy of the informer's criminal record should be included in the ITO except where it may tend to reveal the identity of the informer.

Where the ITO states that the informer has a criminal record when in fact the informer was merely charged, it may be sufficient to void the warrant.

There is no added value in including charges that have been stayed or withdrawn. The prejudicial effect is too great.

Hearsay

The applicant should always indicate whether they are relying on hearsay or direct knowledge.

An ITO relying upon hearsay does does not exclude it from establishing "probable cause."

A justice should independently assess the reliability of the hearsay by considering why the affiant found the hearsay reliable.

An ITO may contain hearsay as long as it is sourced and details are given about the source so the Justice can review the source's reliability and weigh its evidentiary value.

Details on the source should be used to distinguish the information from rumor or gossip.

Where the hearsay source is not set out the part of the ITO may be defective.

It has been recommended that where the source is the notes or reports of other officers there should be detail on how it was obtained and why it is reliable. It has been considered in appropriate to paraphrase or edit the notes of the other officers in materials ways.

It has been further suggested that where it is from a written statement of a witness, details of identity and their involvement should be provided.

Whether the confidential informant was paid should be provided as well.

Debot factors are to be applied when considering hearsay.

Expert Evidence

For expert evidence to be used in an ITO, it must contain details on the expert's qualifications and experience as well as show the methods the expert used to come to their conclusion.

Where the affiant is properly qualified as an expert within the ITO, the reviewing judge may not "independently verify" the opinion.

Errors in Opinion

Where the expert evidence relies on faulty facts or he gives a faulty opinion. That portion of the ITO can excised out in voir dire.

Credibility

See Confidential Informers