Romaniuk's
Search Warrants Considered

Inferences

• "It is the role of the issuing judge to consider the proffered facts and to draw reasonable inferences from those facts {para 32}
  [Knight, G.; NLCA," app dism'd; SCC]. Also see: [Allain, S.; {page 8}; NBCA, Bittle, W.G.; {para 37}; OSCJ, Breton, M.; {para 3}; OCA, Brosseau, F.D.; {para 95}; ABPC, Cafferata, J.; {para 102}; YTC, Cater, K.; {para 38}; NSPC, Church of Scientology No. 6; OCA, app dism'd; SCC, Gill, P.S.; {para 17}; BCSC, Doak, S.W.; {para 55}; BCSC, Hansen, C.; {para 38}; NBPC, Hudson’s Bay Co. v Canada (Director of Investigation and Research under the Competition Act); (1992), 42 C.P.R. (3d) 435 at 445; OHCGD, and appeal quashed (1992) 10 O.R. (3d) 89: OCA, app dism'd; SCC, Jackson; {para 3}; BCCA, Kaloshi, S.; {paras 22,23}; OSCJ, Lee, B.; {para 15}; ABCA, MacDonald, F.D.; {para 5}; NBCA, Masterson, F.; {para 34}; OSCJ, Penney, G.; {para 43}; NLPC, Penny, R.; {Issue 4}; NLPC, Shiers, J.G.; {para 20}; NSCA, Shrubsall, W.C., No. 3; {para 11}; NSSC Sutherland, G.; {para 15}; BCSC, Tohl, M.; {para 8}; OCA, Valley Equipment Ltd.; {ground 1}; NBCA, Valkonen, M.A.; {para 25}; ABQB, Vu, T.L.; {paras 41-43}; BCCA, UNDER APPEAL; SCC and Weir, D.T.; {para 20}; ABCA].
• For a discussion of what reasonable legal inferences can, or cannot, be made by a judicial authority who is in the course of weighing a decision, review
  [Dixon, D.D.; {paras 38-48}; NSCA].
  Dixon, supra, quotes Lord Wright: "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture {pp.169-170};
  [Caswell v. Powell Duffryn Associated Collieries, Limited, [1940] A.C. 152, [1939] 3 All ER 722; HL].
• "Judicial notice may be taken: (1) if the fact is so notorious and generally accepted as not to be the subject of debate among reasonable persons; or (2) if the fact is capable of immediate or accurate demonstration by resort to readily accessible sources of undisputed accuracy {para 21}
  [Manjra, F.; OCA, app dism'd; SCC]."
• "Inferences must flow reasonably and logically from the proven facts – without proof of the underlying facts one is engaging in impermissible speculation [para 88}
  [Iser, C.; BCPC]."
• "Shared knowledge, experience or common sense come into play. Sometimes it "makes sense" to conclude with a practical degree of probability that a conclusion follows from certain premises. Sometimes the distance from premises to conclusion is so great the degree of probability is minimal. The process of going from premises to conclusion, in this context at least, should not be based on intuition but on factors that can be articulated and related reasonably to the conclusion {para 15}
  [McNair, G. NSPC]."
• "I would add that there is an important difference between drawing an inference as to causation from circumstantial evidence, which is often done, and drawing an inference as to causation from no relevant evidence at all, which may be done only in the rare circumstances set out above. This is the difference ... between a logical inference and a legal one; the legal reference should not be resorted to unless the logical inference is impossible to establish with either direct or circumstantial evidence {para 34}
  [B.S.A. Investors Ltd.: BCCA]."
• Inferences drawn from broad sweeping generalizations must be supported by investigative fact finding by the police that provides evidence that forms the basis on which the inference can be drawn. Here broad sweeping generalizations made about pedophiles were sworn to as the truth by the applicant. The applicant gave no facts obtained through an investigation to provide an evidentiary basis that supported the generalizations
  [Morelli, U.P.; {paras 81 and 82}; SCC].
• There has to be a nexus between the reasons one wants to search and the facts being alleged. "The obligation on anyone seeking a court order or authorization on an ex parte basis is to make full and frank disclosure of material facts. Placing characterizations on events in an Information that find no proper basis in the evidence is inappropriate and inconsistent with the high standard required for disclosure {para 33}
  [OSCJ].
• "In most cases, the absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen, not heard or not done {para 40}
  [Nguyen, D.V.; OCA].
• "Common sense" is not a basis to draw a scientific inference. Here to determine that DNA persists on skin {paras 19 and 20}
  [Manjra, F.; OCA, app dism'd; SCC].
• "However, the issuing justice could reasonably have concluded on the basis of common knowledge and common sense that others of the listed documents would be found there {para 73}
  [Terezakis, A.; BCSC]
• "The justice need not draw such an inference from such local judicial knowledge of major streets in Scarborough, but is entitled to
  [Tharmarajah, A.; OCJ]."
• An inference that a second residence, in another province, and leased by the suspect should be searched, because marijuana had been found in the first residence pursuant to a search warrant was too much of a stretch, and resulted in the warrants being quashed {paras 4 and 12}
  [Bui, C.C.; SKQB].
• The applicants did not specifically recite a child pornography charge in their ITO, but they did describe that they intended to look for child pornography in a computer search, and had reason to do so,in the facts attested to. The issuing J.P. could make that inference and issue the search warrant
  [Dragos, B.; OSCJ].
• "A Court considering the issuance of a search warrant is entitled to draw reasonable inferences, however {para 19}
  [McDonough, D.; [2010] O.J. No. 1309; OCJ]."
  Also review [Obed, S.; {para 26}; NLTD and Stemberger, L.; {para 99}; OSCJ].
• However - an inference that an apartment could be searched, because the accused had sold drugs from a storage locker in another part of the building was too much of a stretch in this case. "It seems to me, that where it is believed that the accused stores narcotics in his storage locker, sells them from the storage locker, keeps weigh scales there and meets with and communicates with prospective purchasers there, which are all matters evident from the information to obtain, the opposite inference, namely that he has taken precautions that drugs and drug-related items will not be found in his apartment, is equally compelling or more compelling {para 27}
  [Jones, J.; OSCJ].
• The evidence provided by the applicant must be current
  [Turcotte, L.L.; SKCA].
  For guidance on inferences in this regard review timing issues.
• "The issuing justice may:
  
  
  1. rely upon hearsay evidence provided that it is carefully sourced in such a way as to permit assessment of the reliability of the information,
  2. draw reasonable inferences from the facts {para 30}
  
  [Bryan, P; OSCJ]."
  Refer to Hearsay.
• The issuing justice can infer the date that a crime was committed from other time lines given in the ITO
  [Weir, D.T.; {para 20}; ABCA].
• A "... magistrate, employing his knowledge as a man of the world, as it was his duty to do, could take this view ..." in rendering judgment and registering a conviction {page 429}
  [Bailey, F.; SCC].
• "... a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all {para 1}
  [Quinn v. Leathem; HOL]."
• "From the fact that the applicant purchased a ticket, checked his suitcase as checked baggage and boarded the aircraft a reasonable inference can be drawn that the applicant knew and intended that his luggage be subjected to the security measures in place in an airport. It cannot, however, be inferred that by doing this he consented to his bag being searched by the police {para 144}
  [Chehil, M.S.; 2010 CarswellNS 906, 2010 NSSC 255; NSSC]." Also review statutes.

End of Inferences Section

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