Recently AGP partner and appeal specialist Howard Krongold successfully argued the case of R. v. Wise the Ontario Court of Appeal.
In 2020, following the exclusion of evidence obtained following the issuance of a flawed search warrant, the jury found Mr. Wise not guilty of second-degree murder. The Crown appealed the acquittal, but the Court of Appeal affirmed the trial judge’s decision to exclude the search warrant evidence and unanimously dismissed the appeal.
Over a decade ago the police started to look at Mr. Wise as suspect in a murder investigation and obtained the two search warrants – one in 2014, and one in 2016 – to conduct searches of his residence.
At trial, the judge found that the police’s application to obtain the 2014 search warrant (the group of documents in these applications is called an information to obtain or “ITO”) failed to “disclose reasonable grounds to believe that information about the murder would be found at the respondent’s residence” and could not be used against the accused at his trial.
Because the 2014 warrant could not have lawfully issued on the back of the flawed ITO, all the information learned in the 2014 search was excised from the ITO for the 2016 warrant. Without that information, the 2016 warrant could not have lawfully issued either.
The two searches were breaches of s. 8 of the Charter – the accused’s (and your) protection against unreasonable search and seizure. As a remedy for the breach, the evidence was excluded.
Years after search warrants are issued, trial judges make retrospective inquiries into their validity. The question is whether the ITO contained information that demonstrated the authorities had grounds to believe that evidence pointing to a specific crime would be found in a particular place, at a particular time. Wise is a good example of what happens when warrants could not have issued on the strength of the ITOs that support them.
The Court of Appeal agreed that there were two major problems with the search warrants in Wise.
First, “there were gaps in the information available to the police” to justify the 2016 search. To try to fill those gaps, an expert provided evidence in the ITO about serial killers. But the expert was only able to say that it was “within the realm of possibility” that serial killers keep souvenirs. That did not rise to the level of reasonable, probable grounds to believe that Mr. Wise had done this too.
But worse, there was no evidence to suggest the accused was a serial killer in the first place.
The second problem with the search warrants was that the errors and omissions within them were not drafting errors or product of quick decision making “in light of public safety issues.”
The trial court found that ITOs were so deficient that “the police did not act in good faith, and the state conduct was serious.” In line with guidance from another Ontario Court of Appeal decision R. v. Rocha, these “poorly organized” ITOs that were “strewn with errors” and included an expert opinion “without including evidence to support [it]” could not form the basis for a legally authorized search warrant.
One thing Wise reinforces: sometimes bad ITOs do, in fact, result in authorized search warrants.
At or before the trials that follow these dubious searches, attacking the validity of these search warrants is serious, complex business with high stakes.
If you find yourself subject to an unlawful search, we would be happy to review your case and give you your options.