Thursday, June 22, 2017

Limits on Summary Judgment? Lesenko v. Guerette, 2017 ONCA 522

[30]        Used appropriately, summary judgment motions are an important tool for enhancing access to justice and achieving proportionate, timely and cost-effective adjudication: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. In my view, this motion for summary judgment was premature and should not have been brought until the positions of the parties and the issues were well defined. It was unclear from the pleadings and submissions whether the respondent's claim sounded in contract or unjust enrichment. Further, as noted earlier, the appellants had indicated that their pleading required amendment with respect to the payment they were prepared to make. Moreover, the legal basis for the payment remains unclear. Faced with such a motion, where the record is clearly inadequate, a judge should be reluctant to attempt to resolve the case. Substantial costs are thereby incurred, and further delay caused, with little being achieved. As stated in Baywood, at para. 45, "sometimes … it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process."

 

 

 

 

Friday, June 16, 2017

Expert Evidence

 Bruff-Murphy v. Gunawardena, 2017 ONCA 502:

 

[34]       In White Burgess, a decision released shortly before the judgment under appeal, the Supreme Court of Canada provided clarity and guidance regarding challenges to experts on the basis of bias and lack of independence. Cromwell J., writing for the court, stated at para. 19 that the basic structure for the law relating to the admissibility of expert evidence has two main components.

[35]       The first component requires the court to consider the four traditional "threshold requirements" for the admissibility of the evidence established in R. v. Mohan, [1994] 2 SCR 9: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the expert to be properly qualified.

[36]       The second component is a "discretionary gatekeeping step" where "the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks": para. 24. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.

[37]       The analysis under the second component is best thought of as a specific application of the court's general residual discretion to exclude evidence whose prejudicial effect exceeds its probative value: R. v. Bingley, 2017 SCC 12, 407 D.L.R. (4th) 384, at para. 16. As Charron J.A. wrote in R. v. K. (A.) (1999), 45 O.R. (3d) 641 (C.A.), at para. 76, application for leave quashed, [2000] S.C.C.A. No. 16: "The balancing process which lies at the core of the determination of the admissibility of this kind of evidence is not unique to expert opinion evidence. It essentially underlies all our rules of evidence." In White Burgess, Cromwell J. referenced Mohan and made the same point at paras. 19 and 20:

Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21.

The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p. 21.

[38]       Cromwell J. further explained that lack of independence or impartiality on the part of an expert witness goes to the admissibility of the witness's testimony, not just to its weight: para. 40. Specifically, in the governing framework for admissibility, the court should consider an expert's potential bias when determining whether the expert is properly qualified at the initial threshold inquiry: para. 53.

[39]       However, he added that bias should also be considered when the court exercises its gatekeeping exclusionary discretion, writing at para. 54:

Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [Emphasis added.]

In the overview of his discussion of the admissibility of expert opinion evidence, he instructed at para. 34 that:

[A] proposed expert's independence and impartiality go to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role. [Emphasis added.]

[40]       In the present case, the trial judge cited White Burgess and appears to have relied upon Cromwell J.'s statement that in the threshold inquiry it would be quite rare for a proposed expert's evidence to be ruled inadmissible. As Cromwell J. noted at para. 49, all that needs to be established at that stage is whether the expert is "able and willing to carry out his or her primary duty to the court." The trial judge concluded that Dr. Bail met this rather low threshold requirement.

[41]       That was a discretionary decision, which is entitled to deference from this court: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248. Another judge might well have concluded that Dr. Bail failed to meet even this low threshold test. I do not need to decide whether the trial judge erred on this point, however, because he clearly erred in principle in failing to proceed to the next step of the analysis – consideration of the cost-benefit analysis in Dr. Bail's testimony. The trial judge did not reference this second component of his discretionary gatekeeper role. To the contrary, he appears to have believed that he was obliged to qualify Dr. Bail once he concluded that the witness met the initial Mohan threshold. There is, therefore, no decision to defer to and it falls to this court to conduct the second part of the analysis.

 

 

 

 

 

Supreme Court Doubles Down on Jordan

R. v. Cody, 2017 SCC 31:

                    Constitutional law — Charter of Rights  — Right to be tried within a reasonable time — PreJordan delay of more than five years between charges and anticipated end of trial — Whether accused's right to be tried within reasonable time under s. 11 (b) of Canadian Charter of Rights and Freedoms  infringed — Framework for determining s. 11 (b) infringement set out in Jordan applied.

 

                    C was charged with drugs and weapons offences on January 12, 2010. His trial was scheduled to conclude on January 30, 2015. Before the commencement of his trial, C brought an application under s. 11 (b) of the Charter , seeking a stay of proceedings due to the delay. Because the application predated the release of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the trial judge applied the former framework set out in R. v. Morin, [1992] 1 S.C.R. 771. He granted the application and stayed the proceedings. A majority of the Court of Appeal applied the Jordan framework and allowed the appeal, set aside the stay of proceedings and remitted the matter for trial.

 

                    Held:  The appeal should be allowed and the stay of proceedings restored.

 

                    The delay in this case was unreasonable and therefore, C's right under s. 11 (b) of the Charter  was infringed. The Court of Appeal erred in its application of Jordan. From the time C was charged until his fiveday trial was scheduled to begin, fully five years passed. The Crown, the defence and the system each contributed to that delay. Under the Jordan framework, every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time. This framework now governs the s. 11 (b) analysis and, like any of this Court's precedents, it must be followed and it cannot be lightly discarded or overruled. Properly applied, this framework provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt.

 

                    After the total delay from the charge to the actual or anticipated end of trial is calculated under the Jordan framework, delay attributable to the defence must be subtracted. Defence delay is divided into two components: delay waived by the defence and delay caused by defence conduct. The only deductible defence delay under the latter component is that which is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. Illegitimacy in this context does not necessarily amount to professional or ethical misconduct, but instead takes its meaning from the culture change demanded in Jordan. The determination of whether defence conduct is legitimate is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

 

                    Beyond a retrospective accounting of delay, a proactive approach is required from all participants in the justice system to prevent and minimize delay. Trial judges should suggest ways to improve efficiency, use their case management powers and not hesitate to summarily dismiss applications and requests the moment it becomes apparent they are frivolous.

 

                    After defence delay has been deducted, the net delay must be compared to the applicable presumptive ceiling set out in Jordan. If the net delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, which fall into two categories: discrete events and particularly complex cases. Discrete events, like defence delay, result in quantitative deductions of particular periods of time. However, case complexity requires a qualitative assessment and cannot be used to deduct specific periods of delay. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. The delay caused by a single isolated step that has features of complexity should not be deducted under this category.

 

                    Transitional considerations may be taken into account as a third form of exceptional circumstances where the case was already in the system when Jordan was decided. Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. The exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed. The parties' general level of diligence, the seriousness of the offence and the absence of prejudice are all factors that should be taken into consideration, as appropriate in the circumstances.

 

                    In this case, the total delay was approximately 60.5 months, from which the delay waived by C should be deducted (13 months). Then, two periods of time should be deducted as defence delay: the delay resulting from C's first change of counsel (1 month) and the delay resulting from C's recusal application (2.5 months). After accounting for these deductions, the delay is 44 months, which exceeds the 30month ceiling set out in Jordan and therefore, is presumptively unreasonable.

 

                    With respect to exceptional circumstances, the following delays should be deducted as discrete events: the appointment of C's former counsel to the bench (4.5 months) and part of the delay flowing from the McNeil disclosure issue that arose (3 months). The net delay is therefore 36.5 months. Despite the voluminous disclosure, this does not qualify as a particularly complex case.

 

                    In light of the trial judge's findings of real and substantial actual prejudice and that C's conduct was not inconsistent with the desire for a timely trial, the Crown cannot show that the net delay was justified based on its reliance on the previous state of the law. To the contrary, the trial judge's findings under the Morin framework strengthen the case for a stay of proceedings. Where a balancing of factors under that framework would have weighed in favour of a stay, the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework.

 

 

 

 

 

Saturday, June 3, 2017

Jordan analysis for Charter delay applications

R. v. Islam, 2017 ONCJ 335 is a useful case for POA prosecutions. 

Some take aways include:

S11(b) Jordan analysis applies to POA matters. 

Time runs on Part 1 POA prosecutions from date of charge and not date defendant took some step - that seems obvious but was argued. 

Cases are not argued well and the parties should prepare properly and be concise - 

"43.         The court also ventures to state that part of the issue with regard to delay in this case rests with the conduct of this case by the respondent and the often irreverent response and caustic and adversarial behavior of the applicant, who would like to avail himself of his status as a law student and his knowledge of the law, while at the same time relying on the fact that he is a self-represented defendant who is not familiar with trial procedure.  This case should never have taken the time it has taken to get to today's date.  While the defendant's status has not fared in the court's analysis of the facts, neither side has applied a systematic analysis of Jordan nor followed the test set out in Jordan.  Rather both sides have demonstrated a lack of knowledge of this case and have not pro-offered relevant case law or any case law for that matter, as was the situation with regard to the respondent.  It is not enough for the applicant to submit cases to the court without showing the court how these cases apply to our given fact situation.  It is incumbent upon anyone making an application before any court, to make the argument as to why the court should grant the application or relief that is being sought and make it in a relevant and succinct manner."

Thursday, June 1, 2017

Important Bail Case from Supreme Court of Canada

R. v. Antic (June 1), 2017 SCC 27 (S.C.C.)

67 Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:

(a)    Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.

(b)   Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.

(c)    Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).

(d)   The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, "release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds": Anoussis, at para. 23. This principle must be adhered to strictly.

(e)    If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.

(f)    Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.

(g)   A recognizance with sureties is one of the most onerous forms of release.  A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

(h)   It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. 

(i)     When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. 

(j)     Terms of release imposed under s. 515(4) may "only be imposed to the extent that they are necessary" to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person's behaviour or to punish an accused person.

(k)   Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.

Friday, May 5, 2017

Notes on Bail, Hearsay and Search Warrant review

Justification for detention

In Canada, there are only three grounds for detaining an accused prior to sentence. They are commonly referred to as primary grounds, secondary grounds, and tertiary grounds.

Primary grounds refers to whether detention is necessary to ensure the accused's attendance in court.] Considerations include the accused's criminal history, their behaviour in the matter before the court, their connections (or lack of) with the jurisdiction, and the type of offences before the court.

Secondary grounds refers to whether detention is necessary for the protection or safety of the public. This includes whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice.]

Tertiary grounds refers to whether detention is necessary to maintain confidence in the administration of justice, and is generally reserved for very serious offences. The four factors to consider are:

  • the apparent strength of the prosecutor's case,
  • the seriousness of the offence,
  • the circumstances surrounding the offence, including whether a firearm was used, and
  • if found guilty, whether the accused is liable to a potentially lengthy term of imprisonment, or if a firearm was involved, faces a minimum of 3 year of jail.
  1. v.St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328
  2. v. Hall, 2002 SCC 64

 

Hearsay

Hearsay evidence is generally inadmissible in Canada unless it falls within one of the established common law exceptions. As a result of the Supreme Court's decision in R. v. Khan 1990] 2 S.C.R. 531 and subsequent cases, hearsay evidence that does not fall within the established exceptions can be admitted where established that such evidence is both "necessary and reliable". Additionally, hearsay evidence that would otherwise be admissible as an exception can nonetheless be excluded if it is not necessary and reliable, as in R. v. Starr [2000] 2 S.C.R. 144.

 

Search Warrants – Issuing and Review

Issuing of Warrant: Reasonable and Probable Grounds

The Charter requires that for all warrants police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search"[1] These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure"[2]

In more recent times the standard is called "reasonable grounds to believe". [3]

The standard of reasonable grounds to believe is greater than mere suspicion but less than on a balance of probabilities when the totality of the circumstances are considered.[4] It is a standard of reasonable probability and is credibility based. It must be more than mere possiblity or suspicion.[5] It is a standard of "credibly-based probability" [6]

The key elements to credibility-based probability includes:[7]

  1. The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specked place[8]
  2. The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage."[9]
  3. The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief: R. v. Yorke 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.); affd 1993 CanLII 83 (SCC), [1993] 3 S.C.R. 647.

The court may consider the experience of a police officer when assessing whether the officer's subjective belief was objectively reasonable.[10]

The Justice of the Peace may draw reasonable inferences from the information found in the ITO.[11]

The approving justice must be satisfied that there is a connection between the grounds for belief of the offence and that evidence of or information related to the offence will be found on the premises to be searched.[12]

The Information to Obtain the search warrant (ITO) does not need to state every step a police officer takes in obtaining information.[13]

An ITO can be read in a practical, non-technical, common-sense fashion.[14]

The officer's are not held to the same drafting quality as counsel.[15]

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include "every minute detail of the police investigation". [16]

The ITO cannot be based on any information that was learned through an warrantless search of an agent of the state.

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered.[17] Generally, the requirement will increase "the level of verification required" where "credibility cannot be assessed", "fewer details are provided", and "the risk of innocent coincidence is greater". [18]

Generally, an approving justice should be satisfied that:[19]

  1. that the items specified exist;
  2. that the items specified will be found in the place to be searched at the time of the search;
  3. that the offence alleged has been, or will be, (depending on the type of search warrant being sought) committed;
  4. that the items specified will afford evidence of the offence alleged; and
  5. that the place to be searched is the location where the items will be located.

The document should be reliable, balanced and material. It should also be clear, concise, legally and factually sufficient, but it need not include "every minute detail of the police investigation" [20]

  1. Hunter v. Southam Inc., 1984 CanLII 33 (SCC), 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168
    See also R. v. Vella (1984) 14 CCC 513
    R. v. Harris, 1987 CanLII 181 (ON CA)
  2. Hunter v Southam at p. 168
  3.  Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40[1] at para. 114
  4.  ibid.; R. v. Le 2006 BCCA 2982006 BCCA 463
  5.  Hunter et al v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145
    Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416)
  6.  R. v. Hosie [1996] O.J. No. 2175 (ONCA) at para. 11; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at p. 167
  7.  R. v. Morris 1998 CanLII 1344 (NS CA), (1998), 173 N.S.R. (2d) 1 (C.A.) at para. 31
  8.  R. v. Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at 365
  9.  Sanchez, supra, at 364
  10.  R v. MacKenzie 2011 SKCA 64 at para. 27, see also R v. Navales 2011 ABQB 404
    R. v. Sanchez (1994), 93 C.C.C. (3d) 537 (Ont.Gen. Div.)
  11.  See R. v. Durling, 2006 NSCA 124 (CanLII) at paras. 27-28; R. v. Vu at para. 40
  12.  R. v. Turcotte 1987 CanLII 984 (SK CA), (1987), 39 C.C.C. (3d) 193 (Sask.C.A)
  13.  R. v. Sanchez, [1994] OJ No. 2260 at para. 20
  14.  R. v. Whitaker, 2008 BCCA 174 at 41-42
  15.  Re Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190;
    R. v. Durling 2006 NSCA 124 , (2006), 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19;
    R. v. Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364;
    Re Chapman and the Queen, (1983), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.
  16.  C.B.C. v. A.-G. for New Brunswick 1991 CanLII 50 (SCC), (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562
    R. v. Araujo 2000 SCC 65, (2000), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470;
    R. v. Ling 2009 BCCA 70, (2009), 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)
  17.  R. v. Hosie [1996] O.J. No. 2175 (ONCA) at para. 12
    See R. v. Debot 1989 CanLII 13 (SCC), 1989 CanLII 13 (SCC), (1989), 52 C.C.C. (3d) 193 at page 215 (S.C.C.)
  18.  R v Debot, at page 218
  19.  R v Adams 2004 CanLII 12093 (NL PC) at para. 24
  20.  C.B.C. v. A.-G. for New Brunswick 1991 CanLII 50 (SCC), (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562
    R. v. Araujo 2000 SCC 65 (CanLII), (2000), 149 C.C.C. (3d) 449 (S.C.C.), at p. 470
    R. v. Ling 2009 BCCA 70 (CanLII), (2009), 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165)

Standard of Review: The Garofoli Application

A "Garofoli Application" refers to the defence motion to exclude evidence collected under a search warrant.

Before a party can make such an application, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.

Presumptions and Burdens
A warrant is presumed valid. The applicant bears the burden to establish that there was insufficient basis for issuing the warrant. [1] This presumption applies not only to the warrant but the ITO as well.[2]

Degree of Deference
The reviewing judge is not examining police conduct with great attention to minor details or dissection. [3] Rather the judge must look at whether there is sufficient evidence for the warrant.[4]

The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued.[5]

The reviewing judge should not "substitute his or her own view for that of the authorizing judge."[6]

A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".[7]

Quality of Drafting
Flaws are to be expected. [8]Inaccuracies or material facts not disclosed does not necessarily detract from the existence of statutory preconditions.[9]

Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization."[10]

The ITO is examined as a whole and not one piece of evidence at a time. [11]

Excised Portions of ITO
Inaccurate or omitted information in an ITO does not necessarily render it invalid.

Inaccurate information can be excised from the ITO, and re-evaluated without the offending information.[12]

Amplification Evidence
Where information was omitted from an ITO or where information has been excised for other reasons, it is possible to remedy it by adducing amplification evidence.

This form of evidence can be adduced to correct innocent, minor or technical errors.

  1.  R. v. Campbell, 2010 ONCA 558, at para. 45. (aff'd, 2011 SCC 32)
    R v Shier, [1998] OJ No 5751 at para. 48
    Quebec (Attorney General) v. Laroche, 2002 SCC 72 (CanLII), [2002] 3 S.C.R. 708
  2.  R v Collins (1989) 48 CCC (3d) 343 at p. 356
  3.  R. v. Grant 1999 CanLII 3694 (ON CA), (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.)
    R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 at para. 15-18
    Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 2 B.C.A.C. 73 (C.A.) at 79.
  4.  R. v. Nguyen, 2011 ONCA 465 at 57
  5.  R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992 at para. 54
    See also R. v. Witaker 2008 BCCA 174
    R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at para. 56
    R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223 at para. 49
    R v. Veinot (1995), 144 N.S.R. (2d) 388 (C.A.) at p. 391, 1995 CanLII 4262
    R v Morelli, 2010 SCC 8 at para. 40
  6.  R v Garofoli 1990 CanLII 52 (SCC)
  7.  R. v. B.(J.E.), (1989), 52 C.C.C. (3d) 224 (N.S.C.A.)
  8.  Nguyen, at 58
  9.  R v Pires 2005 SCC 66 at 30
  10.  R. v. Bisson, 1994 CanLII 46 (S.C.C.), [1994] 3 S.C.R. 1097; (1995), 94 C.C.C. (3d) 94 at p. 1098
  11.  R. v. Whitaker, 2008 BCCA 174
    R. v. Brachi, 2005 BCCA 461
    Re Church of Scientology & the Queen (No. 6) 1987 CanLII 122 (ON CA), (1987), 31 C.C.C. (3d) 449 (Ont. C.A.))
  12.  See R v Bisson 1994 CanLII 46 (SCC), [1994] 3 SCR 1097, (1994) 94 CCC (3d) 94 at pp. 95-96
    R. v. Budd, 2000 CanLII 17014 (ON CA) at para. 20-23
    R. v. Agensys International Inc., 2004 CanLII 17920 (ON CA) at para. 32