May 13, 2014

Bad ITO Invalidates Search Warrant

R. v. Liu, 2014 BCCA 166 (CanLII)
Synopsis: Confidential informants provided information linking individuals nicknamed Peter the Greek, Viet Mike, and Coco to drug trafficking. The police obtained a warrant and searched the residence of Viet Mike (Le) and Coco (Liu). They found approximately 740 grams of cocaine, 140 grams of heroin, and $45,000 cash. On a voir dire, the judge found that the warrant was issued lawfully and therefore the search and seizure did not violate the accuseds’ s. 8 Charter rights. On appeal, the Court of Appeal for B.C. held that the trial judge erred in concluding that the ITO could support the issuance of the search warrant. The ITO did not disclose a basis on which the issuing justice could conclude that there was a reasonable probability drugs were being stored at the accuseds’ residence. There was a gap in the information and it was “nothing more…than supposition that the drugs were originating” from the residence. The BCCA ordered a new trial for a further voir dire to determine whether s. 24(2) applies to exclude the evidence.
Importance: The BCCA summarized the law applicable to reviewing the issuance of a search warrant and sufficiency of an ITO:

  • The trial judge’s role in reviewing the validity of a search warrant is to consider whether the material filed in support of the warrant, as amplified on review, could support the issuance of the warrant.

  • The trial judge should examine the information in its totality, not on a piece meal basis, in a “practical, non-technical, and common sense basis”.

  • The question is not whether the reviewing judge would have granted the order, but whether there was an objective basis on which the issuing justice could have done so.

  • The appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima facie case”. The phrase “reasonable belief” also approximates the requisite standard.

  • Reasonable grounds may be said to exist at “the point at which credibly-based probability replaces suspicion”. (para. 39)

The Court ultimately found that the totality of the circumstances failed to demonstrate reasonable grounds for the belief that the appellants were storing drugs at their home. The decision stands for the importance of having a “credibly based probability” rather than “merely a suspicion” that a link exists between trafficking activities and the location to be searched.