Issues with ITO Leads to Quashed Trial Conviction at Court of Appeal

Background

In May 2019, the accused’s residence was searched as part of a drug trafficking investigation in the Vancouver Downtown East Side. The police received information regarding suspected drug traffickers from confidential informers and obtained a warrant under section 11 of the Controlled Drugs and Substances Act, resulting in the seizure of two prohibited weapons, various firearms, as well as drugs and drug trafficking paraphernalia.

At trial, the accused was convicted of thirteen drug, firearms, and weapons offences after the trial judge concluded that while there were insufficient grounds to issue the warrant, admitting the evidence would not bring the administration of justice into disrepute.

The accused appealed the trial decision, arguing that the trial judge erred in the analysis under s.24(2) of the Charter in deciding to admit the evidence. The Court of Appeal agreed that the trial judge did not properly consider the seriousness of police conduct, overturned the conviction, and ordered a new trial.

Reasonable Grounds

In order to issue a search warrant, the authorizing justice must be satisfied that there are reasonable grounds to believe an offence has been committed, and evidence of the offence will be found in the place to be searched.

The Information to Obtain (“ITO”) sworn in support of the search warrant consisted of information provided by three confidential informants and observations made during four days of police surveillance. The trial judge concluded, among other things, that the ITO:

1. contained no “direct evidence from anybody” that evidence of a drug offence would be found in the accused’s apartment;
2. did not indicate when the information from two confidential informers was provided to police, or how current it was;
3. provided “little” to go on in assessing the credibility and reliability of the confidential informers, such as whether they had any criminal records, or whether their information resulted in successful seizures or prosecutions in the past;
4. failed to identify how the confidential informers learned of the information provided to police, instead relaying the information in the form of ‘bald conclusory statements; and
5. contained “erroneous and misleading” descriptions of surveillance conducted.

The ITO also contained information regarding a violent incident involving the accused, but the judge was ‘skeptical’ that such an incident could reasonably draw an inference that the people involved were more likely to be drug traffickers. Ultimately, the judge found there were insufficient grounds to issue the warrant as “there may be suspicion, but it does not amount to a credibly-based probability.”

In considering the seriousness of the police conduct, the trial judge did not find that the affiant made any “deliberate factual or even careless factual misrepresentations” in the ITO. However, the judge found that the affiant’s opinions were “designed” to influence the judicial justice of the peace and accepted that the Charter-infringing conduct was neither “trivial” nor “minor”.

The Court of Appeal criticized the trial judge’s approach, calling the judge’s assessment of seriousness “too narrow and therefore incomplete”, as the first step of the Grant analysis under section 24(2) considers all of the conduct that is found to have contributed to the section 8 violation.

The Court of Appeal found there were a number of conclusions in the trial judge’s decision regarding the ITO that were not fully considered when determining whether to exclude the evidence, including:

1. the lack of information on the reliability and credibility of the confidential informants, or the source of their knowledge;
2. the affiant’s statement about observations on the first day of surveillance was “written to be erroneous and misleading”;
3. the lack of an evidentiary basis for the affiant’s opinion that what he observed was consistent with a hand-to-hand drug transaction or using the designated residence as a stash house; and
4. the judge’s skepticism towards the affiant’s opinion that a physical altercation involving the accused was the type of dispute commonly associated with disputes between street-level traffickers.

Given the above, the Court of Appeal found it difficult to reconcile the breadth of the issues with the ITO and the trial judge’s findings, writing:

[63] Without an assessment under the first Grant step that considered and accounted for the full scope of the conduct that led to the s. 8 breach, the analysis was incomplete. Consequently, there is a serious risk that the fact the police obtained a warrant before searching the apartment carried greater mitigating effect than it appropriately should have, and relevant countervailing factors were not given sufficient consideration. The end result, in my view, was an irreparably flawed assessment of where the Charter‑infringing conduct properly lay on the culpability spectrum and, importantly, whether it weighed in favour of exclusion or admission. As the latter determination necessarily affects the final balancing of the three Grant lines of inquiry, I consider the judge to have committed a material error in principle.

Conclusion

Ultimately, the Court of Appeal’s decision to quash the trial conviction was based on the numerous issues with the affiant’s ITO in support of the search warrant. While the confidential informers were correct, and the items seized from the residence were critical to the prosecution’s case, a new trial was ordered. R v. Khamvongsa is a reminder for officers writing ITOs to be mindful in their drafting so as to not lead any misleading or erroneous evidence, and to ensure that information on a confidential informant’s reliability and credibility is included if they are relied upon, or risk exclusion of evidence at trial.

If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.