On February 1, 2017, the Ontario Court of Appeal released its opinion in R v Paryniuk, 2017 ONCA 87 affirming the residual discretion of a reviewing judge on an evidence exclusion motion to vitiate a warrant to protect the integrity of the prior authorization process. It is an aspect of search and seizure law that has received relatively little attention in the cases. Here’s the story.

The Clandestine Laboratory Team of the Toronto Police Service had a suspected residential marijuana grow-op in their sights. Roman Paryniuk was seen around the house. The affiant for a search warrant included in the Information to Obtain (ITO) data from various computer queries and utility information such as hydro consumption. The ITO also contained information from the police Enterprise Case Occurrence Processing System (E-COPS). It appears that the police in Toronto are not very busy and spend quality time sitting around the lunch room coming up with acronyms. The E-COPS database revealed entries on Paryniuk that included previous drug, firearm and driving offences. Terms like “Involved” and “Charged” were used in the ITO to describe the offences but there were no references to disposition.

On an evidence exclusion motion, the trial judge excised information from the ITO that was “irrelevant, improper, inaccurate or misleading”. He was satisfied, however, that there remained sufficient, credible and reliable information on the basis of which the search warrant could have issued. He then invited submissions on the question whether “the impropriety of tendering criminal allegations in an ITO with their potential to jeopardize fairness and justice” should be considered. He concluded that the information about previous charges was not “such a subversion of the process to obtain warrants to search that the warrant should be quashed”. The evidence was admitted and Paryniuk convicted.

The issue on appeal was whether the trial judge invoked the correct test in deciding whether the search warrant should have been set aside. Paryniuk argued that the trial judge adopted a “clearest of cases” standard that is 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 have been quashed to protect the process and the preventative function it serves”. Justice David Watt, writing for the unanimous three member panel, at para. 66, reaffirmed the residual discretion but held that the circumstances here did not rise to that level. The reasons give us an opportunity to review the principles that govern excision and the residual discretion.

1. Excision

Deliberately misleading, even fraudulent, information in an Information to Obtain a Search Warrant do not automatically lead to a warrant being invalidated. After excising that kind of information from an ITO a reviewing judge must go on to consider whether there is other independent and reliable information remaining on the basis of which the warrant could have issued. The function of the reviewing judge finds its pedigree in the trilogy of cases in the Supreme Court of Canada beginning with R v Garofoli, [1990] 2 SCR 1421 per Sopinka J., at para. 56 to R v Bisson, [1994] 3 SCR 1097 per curiam, at paras. 1-2 and concluding with R v Araujo, [2000] 2 SCR 992 per LeBel J., at para. 51.

2. Residual Discretion

Although the excision of misleading or fraudulent information may not lead to the automatic vitiation of a search warrant, there still remains the need to protect prior authorization systems. The leading case is R v Morris, 1998 NSCA 229 where Justice Thomas Cromwell held, at paras. 34-5 and 43, that Garofoli does not foreclose a reviewing judge from considering whether the conduct of the police in seeking a warrant was so subversive of the process that the warrant must be set aside to “protect the process and the preventive function it serves”. In Alberta, Morris was followed by Justice Jack Watson in R v Sapara, 2002 ABQB 321, at paras. 204-24, a decision not cited by the Paryniuk court.

3. The Paryniuk Holding

The Crown argued that Garofoli and Araujo do not explicitly recognize the residual discretion. Justice Watt conceded, at paras. 67-8, that the Crown was “on firm ground” but that “Garofoli is not the last word”. Here are two key passages of the reasons, at paras. 62 and 69:

• 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. Lehale 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. Viver, 2009 ONCA 433, at para. 2. See also R. v. Evans, 2014 MBCA 44, 306 Man. R. (2d) 9, at paras. 17, 19.

• What is clear…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. (3d) 119, at para. 31; Lahale, 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. (para. 69)

Justice Watt went on to conclude, at para. 78, that the affiant’s failure to plainly say that Paryniuk was not convicted of a criminal offence was a serious deficiency. However, the descriptives “Involved” and “Charged” were “clearly displayed” and the lack of reference to “Convicted” could scarcely have gone unnoticed.

4. Conclusion

What, then, is the test? The cases are not very clear. In Paryniuk, Justice Watt suggested, at paras. 65 and 74-5, that the application of the remedial discretion was “the functional equivalent of an application to terminate the prosecution for an abuse”; that the trial judge’s mention of abuse of process did not “reflect self-misdirection”; and, “the claim evokes the language of the residual category of abuse of process”. But evocation is not ratio decidendi. The most that can be said about the authorities in Ontario is that the standard is high. In R v Evans, 2014 MBCA 44 Justice C.J. Mainella also held, at paras. 18-9, that the standard is a high one. Justice Mainella specifically concluded that it will be a question of degree whether an affiant’s deliberate breach of the ex parte duties rises to the point that the prior authorization process has been subverted. But, in R v Cheng, 2010 BCCA 135 Justice I.T. Donald recognized, at para. 27, “a residual discretion to strike down a warrant for abuse of process”.

A standard grounded in the doctrine of abuse of process should be avoided. It raises the spectre of the “clearest of cases” test. There is no compelling reason why the standard must be that high. It is important in cases involving police conduct that the purpose of the prior authorization process not be frustrated by positioning it virtually outside the remedial grasp of the Charter. I will end where my discussion of the residual discretion began – by returning to Morris where Justice Cromwell said this, at para. 35:

“In reviewing police conduct during the prior authorization process, the court’s attention cannot focus solely on the particular search under consideration. It is tempting to do so, especially where, as here, police suspicions proved to be well founded. However, the purpose of the prior authorization requirement must be kept in mind. As noted, that purpose is to prevent unreasonable searches, not to condemn them after the fact. If the prior authorization process is not vigorously upheld by the courts, it will lose its meaning and effectiveness. That process is in place to protect everyone from unreasonable intrusions by the state. In considering this, or any other s. 8 case, the court must not only protect the rights of this individual, but also protect the prior authorization process which helps assure that the rights of all individuals are respected before, not after, the fact.”

A test based on the preponderance of evidence is well suited for deciding questions that arise from proceedings conducted behind closed doors – the ex parte application for judicial authorization to invade the constitutionally protected privacy interests of the citizen – proceedings that are governed by the overarching duty of candour.