Romaniuk's
Search Warrants Considered

Reasonable and Probable Grounds

• The grounds must be "reasonable and probable {page 168}
  [Hunter v. Southam Inc.; SCC]."
• In a post-Charter case the court noted that: "It is the Justice of the Peace who must be satisfied that reasonable grounds exist and not the informant {para 10};
  [Tucker, E.J.; NSSC]."
  Also review [Purdy, J.A.; (1972), 28 D.L.R. (3d) 720, 8 C.C.C. (2d) 52); {para 42} NSCA; Re McAvoy; (1970), 12 C.R.N.S. 56, (sub nom. Re Criminal Code, S. 429) 74 W.W.R. 688 {para 54}; NWTTC; Trottier; (1966), 4 C.C.C. 321 (English translation) {page 323}; QCA and United Association of Journeymen (RE); [1968] 8 C.C.C. (2d) 364; BCSC].
• The grounds for the deponent's belief that reasonable and probable grounds exist must be particularized in detail in the ITO
  [Généreux, M.; {7. Evidence Discovered on the Search}; SCC].
  Also review: [Solloway & Mills; 1930 53 C.C.C. 271 ABSC [AD]].
• The ITO must contain sufficient details to enable the justice to be satisfied that there are reasonable and probable grounds for believing what the object that is required by the search section of the relevant legislation
  [Re Borden & Elliot; (1975), 30 C.C.C.(2d) 337; OCA].
  This applies applies to applications for Production Orders too
  [Huynh, Y.T.; {para 6}; ABCA].
• "Some of the primary conclusions that can be drawn from the case law in the area of “reasonable and probable grounds to believe,” may be summarized as follows:
  
  
  1. There is no fixed formula for what constitutes reasonable grounds to believe. Whether grounds exist depends on the factual circumstances present in each case. No one fact can predominate. The sufficiency of the grounds will depend on the totality of the circumstances."
  2. The concept of reasonable grounds involves the application of common sense, as well as practical and non-technical principles. The process does not deal with hard certainties, but with probabilities. The concept is a fluid one, turning on an assessment of probabilities in particular factual situations; it is not readily, or even usefully, reduced to a neat set of legal rules. The standard of proof is one of reasonable probability."
  3. The information presented to the issuing court must permit the potential to determine the existence of reasonable grounds. The issuing court must rely on more than mere conclusory statements by the police officer seeking the warrant. The task of the issuing court is to make a practical, common sense decision about whether (given all the circumstances set out in the supporting affidavit, including the veracity and basis of knowledge of persons supplying hearsay information) there is a fair probability that evidence of a crime will be found in a particular place.
  4. The police officer swearing the affidavit in support of an application for a search warrant must have both a subjective and an objective basis to believe that reasonable grounds exist for the search {para 85}.
  
  [Philpott, G.; OSCJ]."
• "The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin, J.A. that the appropriate standard is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima facie case”. The phrase “reasonable belief” also approximates the requisite standard {Unreasonable Search}
  [Debot, K.J.; SCC]."
• "The requirement is not that the thing will be evidence or ultimately admissible as evidence. The requirement is only that there be a reasonable ground to believe that it will be evidence. It seems to me that if a thing is potentially relevant to the proof of an offence, one would certainly be entitled to have a reasonable ground to believe that it will afford evidence of it {para 21}
  [Famous Players Ltd.; 1986 CarswellOnt 1710, 29 C.C.C. (3d) 251, 11 C.P.R. (3d) 161; OSCJ]."
• "As with most searches authorized by statute, the focus is on the gathering of evidence in circumstances where there is a credibly based probability that there is a predicate or ongoing offence and that the search (or in this case intercept) will afford evidence of the offence ... {para 23}
  [Balatoni, Z.; OSCJ]."
• "While each of these pieces of information comes with a caveat, the caveat sometimes amounting to a significant reservation, and sometimes being more in the nature of a quibble, nonetheless each of them adds something to the grounds. In my view, no single piece of information is sufficient, however, considered in total they are additive to the degree necessary for the conclusion that an authorizing Judicial Justice of the Peace could judicially assess them as amounting to reasonable grounds, or in other words, as providing a reasonable probability of discovery of evidence of the suspected offence; and in this case, that the residence likely housed a grow-op {emphasis is the court's, para 21};
  [Tran, A.L.; BCSC]."
• "The existence of reasonable and probable grounds entail a subjective and objective component. The officer must subjectively believe that the grounds exist; moreover, these objective grounds must exist {para 45}." The grounds must be examined from the viewpoint of the knowledge of the peace officer at the time the demand was made. Subsequent actions are of no consequence, nor are the observations of others. The Court examining the reasonable and probable grounds must focus upon the knowledge and understanding of the peace officer who made the demand. That officer’s understanding may be based upon hearsay and even a misperception of the actual evidence. The Court does not look over the shoulder of the officer to see whether or not the circumstances understood by the officer are true. The Court must weigh the circumstances as understood by the officer to determine their reasonableness and probability. It is an error in law to test individual pieces of evidence; rather, the evidence as a whole must be considered in determining whether the facts support a standard of objective reasonableness. Clearly, the determination is dependent upon the understanding of the officer in the individual circumstances under litigation. Reference to other reported cases is helpful in understanding what may constitute reasonable and probable grounds {para 46}." This was in regard to making a breath demand - a form of seizure
  [Cuthbertson, T.C.; ABPC].
  Review [McClelland, B.L.; {paras 16-21}; ABCA].
  Also see: Breath Samples.
• "In this Court’s view, simply put, there is either RPG or there isn’t. If there was, the officer should have clearly stated so. Unfortunately, he has couched his support for his position in ambiguous, and therefore, uncertain language. It does not meet the standard set out in s. 487(1) of the Criminal Code {para 61}
  [Adansi, R.; OCJ]."
• "The fact that two police officers say that they have reasonable and probable grounds does not necessarily mean that the grounds are in fact reasonable. It is the justice not the police who must determine whether the grounds are reasonable, and the only way he can properly do so is by receiving information upon oath about the nature of the grounds
  [Kerwin (RE); {sub noms [Cooper, R. B. (Re); and Cooper v. Kerwin} [1982] 3 C.C.C. (3d) 264; PEISC]."
  Also see: Double Hearsay.
• Relying exclusively on the statements of another officer from another jurisdiction does not constitute reasonable grounds
  [Graham, E.A.; {para 27}; PEICA].
  Also see: Double Hearsay.

As Opposed To Suspicion or Intuition

• Intuition cannot be equated with reasonable and probable cause, because intuition has no factual base which can be assessed
  [Porquez, D.P.; {para 17}; ABCA]. Also review [Guse; 1983 CarswellOnt 117, 37 C.R. (3d) 339; {paras 16 and 17}; OCC].
• “... the sum total of suspicion is still suspicion {para 22}
  [Lee, C.N.; OSCJ]."
  Also see: [Chhan, K.Y.; SKQB].
• "Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally. Where they take this latter course, the Charter violation is plainly more serious than it would be otherwise, not less {Seriousness of the Violation}
  [Kokesch, C.L. SCC]."
• "Mere suspicion, conjecture, hypothesis or "fishing expeditions" fall short of the minimally acceptable standard from both a common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case {The Standard}
  [Sanchez, S.; OGD]."
  Also see: [Mahmood, A.; OSCJ, aff'd; OCA]. In the latter case the police wanted to search cell phone records, as the accused "may have" used a cell phone in the commission of an offence. That was speculation {para 85}.
  Also review: [Debot; OCA, Debot, K.J.; SCC (per Wilson, J.) and Ward, D.; OCJ].
• "The standard of proof required to establish “reasonable grounds” is more than a flimsy suspicion, but less than the civil test of balance of probabilities. And, of course, a much lower standard than the criminal standard of “beyond a reasonable doubt”. It is a bona fide belief in a serious possibility based on credible evidence {para 24}
  [Chiau, S.C.S.; FCC," aff'd; FCA, app dism'd; SCC].
• "I reject entirely any suggestion that mere suspicion is a sufficient foundation upon which to erect the edifice of a justifiable warrantless search. Suspicion does not equate to reasonable grounds. Unless reined in, suspicion will rapidly conflate with improper abuse {para 52}
  [Tran, A.L.; ABPC]."
  Also see: [Bender; (1916), 30 D.L.R. 520 OHC and Hicks; [1921] 36 C.C.C. 141; OCA].
• "Mere suspicion that an offence has been committed is not sufficient. There was no objective basis for the belief that conditions existed for obtaining a search warrant {para 75}
  [Sadikov, S.; OSCJ]," also review [Blazevic, M. #2; {paras 26-27}; OSCJ].
• A suspicion that evidence may be found is not enough the applicant must demonstrate "a credibly based probability there would be such evidence." Here the applicant stated that he wanted to search a residence "with the hopes that it will afford evidence for the offence of murder {para 24}
  [Billings, P.L., #2; BCSC]."
  Also see: [Krammer, K.J.; {para 29}; BCSC].
• Suspicion is just that. Here authorities applied for a production order for a list of a doctor's female patients, wanting to interview them to see if they had been sexually assaulted by him, on the basis of the accusations of one of his patients. The court noted that this was not withstanding that they had advertized the allegation extensively, and that no other patients had come forward
  [Woodroffe, M.; OSCJ].

End of Reasonable and Probable Grounds Section

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