



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Paryniuk, 2017 ONCA 87

DATE: 20170201

DOCKET: C57206

Watt, Epstein and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roman Paryniuk

Appellant

R. Craig Bottomley and Sherif Foda, for the appellant

Croft Michaelson, Q.C., for the respondent

Heard: June 29, 2016

On appeal from the conviction entered by Justice Peter A.
    J. Harris of the Ontario Court of Justice on February 11, 2012.

Watt J.A.:

[1]

Looks can be deceiving. But not always. Sometimes, things are as they
    appear. At least to the practised eye.

[2]

A house on a residential street. 33 Lynngrove. Windows covered.
    Shingles peeling. Bright lights on inside. But not much else. A house that uses
    a lot of electricity. Twice as much as similar houses on the same street.

[3]

To a passing motorist, a house that needs work. To a drug investigator,
    a potential grow-op.

[4]

The drug investigator gets a search warrant. Police enter. Suspicions confirmed.
    A marijuana grow-op. Some other drugs as well. And a handgun. And some
    ammunition.

[5]

Police arrest Roman Paryniuk on several charges based on what they find
    inside the house. At trial, Paryniuk, whom police had observed at the house, challenges
    the search warrant executed there. His challenge fails. He is convicted of
    several offences.

[6]

Roman Paryniuk appeals. He renews his challenge to the validity of the
    warrant that authorized the search of the house. These reasons explain why I,
    too, would reject his claim that the search warrant was invalid and would
    dismiss his appeal and affirm his convictions.

THE BACKGROUND FACTS

[7]

The trial proceeded as a blended
voir dire
and trial. Paryniuk
    invoked the procedural course first charted in
R. v. Garofoli
, [1990]
    2 S.C.R. 1421, 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.

[8]

The sole ground of appeal advanced is better understood if prefaced by a
    sketch of the contents of the ITO and the rulings of the trial judge.

The ITO

[9]

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.

[10]

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.

[11]

A substantial part of the ITO was taken up by information from the local
    utility that showed hydro consumption at the premises at 33 Lynngrove 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.

[12]

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 Paryniuk. 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.

[13]

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 at 33 Lynngrove.
    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 Paryniuk's vehicle elsewhere than a residential property

·

Paryniuk's
    attendance at the house

·

The
    officers belief that Paryniuk resided elsewhere than 33 Lynngrove

·

The
    link between Paryniuk and the hydro account holder

The Search Warrant

[14]

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 at 33 Lynngrove.

The Rulings of the Trial Judge

[15]

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

[16]

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 s. 24(2) analysis unnecessary to determine the
    admissibility of the seized items as evidence.

[17]

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.

[18]

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.

THE GROUNDS OF APPEAL

[19]

In this court, Roman Paryniuk (the appellant) 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.

[20]

The appellant's focus here 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

[21]

The second ruling of the trial judge will provide the backdrop essential
    to an understanding of the argument advanced by the appellant and its
    assessment here.

The Ruling of the Trial Judge

[22]

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

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.

[23]

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.

[24]

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.

[25]

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 shouldnt have happened. I can't put it as high
    as a corruption of the judicial process.

[26]

After referring to the decision of the British Columbia Court of Appeal
    in
R. v. Sismey
(1990), 55 C.C.C. (3d) 281 (B.C.C.A.), 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.

The Arguments on Appeal

[27]

The appellant advances several arguments.

[28]

First, the appellant 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 appellant 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
.

[29]

Second, according to the appellant, 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.

[30]

Third, the appellant 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 at 33 Lynngrove. The inclusion of
    "spectacularly prejudicial" and misleading information about previous
    charges of related criminal activity and the knowledge that no convictions had
    resulted.

[31]

Unlike the traditional inquiry pursuant to
Garofoli
and
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992,
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.

[32]

In addition, the appellant 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.

[33]

The respondent contests the availability of the discretion the appellant
    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.

[34]

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.

[35]

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
, [1994] 3 S.C.R. 1097.

[36]

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
(1998), 134 C.C.C. (3d) 539
    (N.S.C.A.).

[37]

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.

[38]

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 appellant seeks here.

[39]

The respondent advances an alternative argument in the event that we are
    persuaded of the existence of the residual discretion for which the appellant
    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.

The Governing Principles

[40]

The ground of appeal the appellant advances does not contest the
    correctness of the first ruling by the trial judge. In that ruling, the trial
    judge, after excising parts of the ITO he considered erroneous, concluded that
    there remained sufficient credible and reliable information on the basis of
    which the search warrant could issue.

[41]

The disputed ground has to do with the existence and scope of a residual
    discretion to set aside a validly-issued warrant and the standard to be applied
    in deciding whether any such discretion as may exist should be invoked.

The Garofoli Application

[42]

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.

[43]

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:
Garofoli
, at p. 1452. 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:
Araujo
, at paras. 51, 54;
R. v. Campbell
,
    2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14;
R. v. Morelli
, 2010 SCC
    8, [2010] 1 S.C.R. 253, at para. 40. The onus of establishing that the search
    authority was improvidently granted rests upon the accused:
Campbell
,
    at para. 14;
Morelli
, at para. 131;
Quebec (Attorney General) v.
    Laroche
, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68.

[44]

Prior to
Garofoli
, fraud, non-disclosure, misleading evidence
    and new evidence were prerequisites to review of the enabling order:
Garofoli
,
    at p. 1452. 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:
Garofoli
, at p. 1452. See also
Araujo
, at
    para. 51;
Bisson
, at p. 1098.

[45]

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:
Araujo
, at para. 54. In this analysis,
    facts originally omitted are also considered:
Morelli
, at para. 60.

[46]

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:
Araujo
,
    at para. 58;
Campbell
, at para. 14;
Morelli
, at para. 41. But
    errors made in good faith may be corrected by amplification through the
    introduction of evidence that was available when the ITO was prepared:
Morelli
,
    at paras. 41-43.

[47]

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:
World Bank Group v. Wallace
, 2016
    SCC 15, [2016] 1 S.C.R. 207, at para. 122.

The Discretion to Set Aside Otherwise Valid
    Search Authority

[48]

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:
Garofoli
, at p. 1452.

[49]

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
.

[50]

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:
Araujo
,
    at para. 10.

[51]

The British Columbia Court of Appeal unanimously set aside the
    acquittals entered at trial:
R. v. Araujo
(1998), 127 C.C.C. (3d) 315
    (B.C.C.A.). The court rejected the trial judge's application of the standard of
    review to the enabling authorization and of the investigative necessity test.

[52]

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:
Araujo
,
    at para. 51.

[53]

After referring to some authorities that emphasized the need for a
    contextual analysis in authorization review, the court continued at para. 54:

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.

(
R. v. Morris

(1998),

134 C.C.C. (3d)
    539, at p. 553)

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. [Emphasis
    in original.]

[54]

The appellant invokes "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" (emphasis in original) 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.

[55]

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.

[56]

The
Morris
court summarized this principle in this way, at pp.
    568-69:

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.

[57]

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.

[58]

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
:
Araujo
, at para. 54.

[59]

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: see e.g.
Sismey
, at p. 285.

[60]

In subsequent cases, however, the British Columbia Court of Appeal has
    acknowledged that
Sismey
has been overtaken by
Garofoli
and
Araujo
:
R. v. Bacon
, 2010 BCCA 135, 285 B.C.A.C. 108, leave to appeal refused,
    [2011] 1 S.C.R. v, at para. 23.
[1]
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:
Bacon
,
    at para. 25.

[61]

The
Bacon
court did acknowledge that there may be a residual
    discretion to strike down a warrant for abuse of process:
Bacon
, at
    para. 27.

[62]

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:
R. v. Colbourne
(2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 40. 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:
Lahaie
    v. Canada (Attorney General)
, 2010 ONCA 516, 101 O.R. (3d) 241, leave to
    appeal refused, [2010] S.C.C.A. No. 371, at para. 40. 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":
R. v. Vivar
, 2009 ONCA 433, at para. 2. See also
R.
    v. Evans
, 2014 MBCA 44, 306 Man. R. (2d) 9, at paras. 17, 19.

[63]

Two brief points should be made about the remedy the appellant seeks.

[64]

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:
R. v. Babos
, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31;
R.
    v. O'Connor
, [1995] 4 S.C.R. 411, at para. 73. 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:
Babos
,
    at para. 39.

[65]

At trial, the appellant 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:
R. v. Jageshur
(2002), 169 C.C.C. (3d) 225
    (Ont. C.A.), at para. 69.

The Principles Applied

[66]

As I will explain, I agree with the appellant 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.

The Existence of the Authority

[67]

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.

[68]

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.

[69]

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:
Colbourne
,
    at para. 40;
R. v.

Kesselring
(2000), 145 C.C.C. 119, at para.
    31;
Lahaie
, at para. 40;
Vivar
, at para. 2.  Courts of appeal
    in other provinces have reached the same conclusion:
Bacon
, at para.
    27;
Evans
, at paras. 17, 19;
R. v. McElroy
, 2009 SKCA 77, 337
    Sask. R. 122, leave to appeal refused, [2009] S.C.C.A. No. 281, at para. 30;
Morris
,
    at paras. 90, 92.

[70]

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:
Vivar
,

at para. 2;
Bacon
, at para. 27.

The Merits of the Claim

[71]

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.

[72]

First, the absence of the required finding. Critical to the application
    of the authority the appellant 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.

[73]

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.

[74]

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 appellant 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":
Vivar
, at
    para. 2.

[75]

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.

[76]

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 at 33
    Lynngrove; 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,
    Paryniuk had never been convicted of a criminal offence.

[77]

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:
World Bank Group
, at para. 123.

[78]

The affiant's failure to plainly say that Paryniuk 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.

[79]

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.

[80]

Sixth, the ultimate remedy. The appellant'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 appellant knew would crater the case for the Crown. In these
    circumstances, the standard "clearest of cases" may not have been
    inappropriate.

[81]

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 Crowns case. In
    reversing the trial decision on appeal, Doherty J.A. noted that "Although
    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, the 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 judges decision occurred
    in an evidentiary milieu not dissimilar to the one in
Jageshur
. I do
    not think that the trial judges reference to the clearest of cases can be
    said to be reversible error.

[82]

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 appellant 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

[83]

For these reasons, I would dismiss the appeal.

Released: February 1, 2017 ("DW")

"David Watt
    J.A."

"I agree. Gloria
    Epstein J.A."

"I agree. K.M.
    van Rensburg J.A."





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


