What if the officer swearing the Information-to-Obtain affidavit makes mistakes about who told him what information as to the crimes on which the warrant was based?
In R. v. Araujo 2000 SCC 65( CanLII) 2 SCR 992, the RCMP wiretapped persons accused of being involved in cocaine trafficking.
The BCCA noted that the warrant uncovered 4.3 kilograms of cocaine, a cocaine press, large amounts of cash, score sheets and handguns (BCCA para 3)
Comment: in other words, this wasn’t some ordinary citizen whose non-criminal privacy was invaded. Sopinka is famous in a similar context, for having pointed out that the uncovering of real evidence (in that case, the murder weapon) in effect changes, in favour of the state, the wrongness of an improperly issued warrant.
There are three judicial issues in Araujo:
- Was the warrant necessary rather than merely an efficient tool of investigation?
- Did the use of excessive boilerplate language in the affidavit render it fatal?
- Did numerous officer-errors (on who gave the information to him, either informant “E” rather than “C”), constitute sufficient damage as to invalidate the affidavit. (para 8)
The first instance provincial court judge (Filmer) found bad faith and was therefore prepared to exclude all of the evidence. (SCC: para 10)
As Braidwood JA stated at the BCCA: the errors were, on the whole immaterial as against the totality of the affidavit and there was other evidence untainted by the specifically identified errors, upon which a warrant could still issue (i.e. a damaged affidavit is still a functional warrant tool) (para 12)
The essence of the provincial court judge’s critique centered around the fact that informant “E” had a perfect track record of providing arrest-level information whereas informant “C” was the typical story-teller that you see in the movies: whose information apparently leads to arrest in 2 out of 12 cases (BBCA para 14).
As such Filmer was not convinced that the information to obtain officer was telling the truth when he says he innocently attributed the information to Mr. Reliable “E” when the information really came from Mr. Unreliable “C”. Was the cop’s forgetfulness innocent? Or was he juicing up the presentation to the warrant-granting judge by lying about who gave him the information?
Braidwood J.A. did not approve of this judicial reasoning (BCCA para 15). Braidwood whitewashed the officer’s error as a piece of innocence (BCCA para 18). Braidwood used ‘amplification’ evidence (new evidence not before the warrant-granting judge) to deem the cop’s version of his affidavit-error to be correct and accurate thereby not accepting Filmer’s critique
Braidwood isolated the affiant’s testimonial errors and credibility problems strictly to the issue of information “C” and “E” (BCCA para 23)
Braidwood relied critically upon the fact that Filmer found that “Constable Rosset did not deliberately make the error referred to” (BCCA para 28)
Having so determined the issue of intentional bad faith, it was permissible to allow the remainder of the affidavit to survive, particularly as there was no attack upon the other facts in the affidavit.
This result was upheld by the SCC.
