R. v. Jones, 2023 ONCA 106 and R. v. Shah, 2023 ONCA 103
WHAT YOU NEED TO KNOW
- These cases provide a helpful summary of the applicable tests for (1) reviewing the sufficiency of a search warrant at trial and on appeal, (2) granting leave to cross-examine the affiant of an Information to Obtain and reviewing this decision on appeal.
REVIEWING THE sufficiency of a search warrant
When reviewing the sufficiency of a search warrant, the test is:
“whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued, and not whether in the opinion of the reviewing judge, the application should have been granted at all”
See also: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Araujo, 2000 SCC 65, at para. 54; R. v. Morelli, 2010 SCC 8, at para. 40.
When a party appeals a trial judge’s review of a search warrant, the test is:
“whether the reviewing judge erred in law by interpreting and applying the standard to determine whether the issuing judge properly issued the warrant”
See R. v. Liberatore, 2014 NSCA 109, at para. 14.
The scope of appellate review is quite narrow: the reviewing judge’s findings of fact, and the inferences drawn from those facts are owed significant deference, and, absent an error of law, misapprehension of evidence, or a failure to consider relevant evidence, appellate courts will not intervene.
2. leave to cross-examine AFFIANT re: ITO
In determining whether to grant leave to cross-examine, a reviewing judge is to decide whether there is a “reasonable likelihood” that the cross-examination will impact on the question of the admissibility of the evidence obtained using the search warrant: R. v. Pires and Lising, 2005 SCC 66, at paras. 30-31, 40.
The standard of review on appeal from a reviewing judge’s decision whether to grant leave is:
“absent an error in principle, a material misapprehension of the evidence, or an unreasonable determination, an appellate court should decline to interfere with the reviewing judge’s decision.”
See: R. v. Castellano, 2023 ONCA 45, at para. 21.