Romaniuk's
Search Warrants Considered

Judge Shopping

• "The principle is clear – judge shopping by Crown counsel is not acceptable in our system of justice {para 126}
  [Pilarinos, D.; BCSC]."
• Judge shopping erodes the public's confidence in the administration of justice. "A system that allows the Crown an advantage in choosing or changing judges, a system which either in fact or appearance is partial, a system which permits a judge's ruling to be circumvented other than by the normal appeal process -- such a system would be open to the charge that it offended the fundamental principles of justice upon which our society rests. By the same token, proceedings which permit such abuses might be characterized as "vexatious" or "unfair"
  [Scott, W.L.; SCC]."
• "Even if this advantage was not ultimately exploited, it must be reasserted that judge shopping is unacceptable both because of its unfairness to the accused, and because it tarnishes the reputation of the justice system. Furthermore, it should not infect the investigative process by involving police in a conspiracy to manipulate the process {para 61}
  [Regan, G.A.; SCC]."
• "Given the circumstances, the only two options available to the Constable were to abandon his application or do some more work to strengthen the factual grounds underling his application. The Constable chose neither of those options. Instead, he pressed ahead with the same application before a different justice notwithstanding the prior refusal. The fact that he did so leads me to infer that he was prepared to seek out a second and more favourable opinion on his application, even though he knew that it was improper to do so {para 32}." The search warrant quashed as a result
  [Nguyen, X.T.; sub nom X.T.N.; BCPC].
• When the applicant has an application rejected and adds a reference to case that he feels is relevant, and then takes it to a second Justice of the Peace, who approves the same, the search warrant is invalid. The proper course of action would have been to have the first Justice of the Peace review the application
  [Chan, L-K; [2003] O.J. No. 188; {paras 49-61}; OSCJ].
• "It would, of course, be improper for successive applications based on the same ITO, to be brought before different justices of the peace. One justice of the peace has no jurisdiction to review the exercise of discretion of another {para 49}
  [Eng, M.B.; BCCA]."
  Also see
  [Colbourne, A.T.; {paras 32 and 41}; OCA].
• Noting that there is no appeal process in the Criminal Code regarding rejected search warrants the BCCA held that there is nothing wrong with applicants reapplying before another judge or justice of the peace provided that:
  
  
  1. the applicant advises the 'new' judge or justice of the peace that the application had been previously denied,
  2. stating the reasons in writing why the previous judge or justice of the peace denied the application, and
  3. providing reasons in writing why the applicant disagrees with the reasons for the denial.
  
  The Court went on to note that Judges and Justices of the Peace have equal jurisdiction in regard to search warrants, and that a new application with written reasons stating why the applicant disagreed meant that the application was fresh and required the exercise of judicial discretion and was not a form of appeal.
  [Duchcherer, D.E.; {para 29}; BCCA].
  Note, in a subsequent case, the same Court noted that: "The JJP’s decision disposed of a discrete application but it did not bind anyone. The police could have applied again on the same material to a Provincial Court judge who would have been free to make a de novo decision without regard for the JJP’s view of the material {para 19}.
  [Bacon, J.D.; BCCA, app dism'd; SCC]." Also review [Athwal, S.S.; {para 12}; BCPC].
  "In this case the Justice of the Peace initially presented with this Application would not accept it due to some concern with the legal issues involved. It was therefore appropriate for the application to be made to a Judge {para 7}." "The police have seized clothing from the hospital room of a suspect in a murder investigation. The suspect was injured during flight from the police and hospitalized. Believing that the property would afford evidence in the investigation and fearing that it would not be preserved the police seized his property and sealed it at a police facility. The crime scene, chase route and clothing appear to have considerable blood and perhaps other linkable materials. The police now apply for authorization to seize the property already in their possession {para 1}." "The police have acted as the exigencies of the case dictated to them as experienced investigators, they have in effect frozen the seizure at a stage where the integrity of the evidence is protected and the invasion of the suspects privacy interests is in minimized. The police now seek to bring themselves within the statutory framework in the Criminal Code governing the handling of property seized under warrant and do so by seeking judicial authorization to carry forward in testing the property already seized {para 2}." The search warrant was issued
  [Criminal Code of Canada (Re) IN THE MATTER OF an application made September 13th, 2002; [2002] O.J. No. 3804; OCJ].
  Further, the reasons given in writing disputing the previous rejection of the application must be substantive. In this case one word did not suffice {para 6} "... he did not ask the justice why the warrant was refused and she did not tell him. He asserted that he had had no conversation with the justice at all, other than to hear her say that the warrant was refused. He did not believe that he was allowed to ask for an explanation. On this issue, the Constable was wrong. There is a difference between asking why the warrant is refused and asking for advice on how to prepare an acceptable ITO. The former is permissible. The latter is not {para 18}
  [Nguyen, X.T.; sub nom X.T.N.; BCPC]."
  While there is no statutory right of appeal the common law appeal routes still exist in Alberta (IE. certiorari or mandamos)
  [Du, B.B. #2; ABQB and Martint; [1977] 35 C.C.C. (2d) 366; ABCA].
• The applicant should clearly identify that a previous application had been denied
  [Bui, M.C.; {para 54}; OSCJ].
  However, "I therefore conclude that "judge shopping" for a search warrant, even with full disclosure of a previous refusal, constitutes a breach of s. 8 -- albeit in this case, because the law in Ontario is not yet settled, it was at most a marginal breach [Park, S.; 2007 CarswellOnt 6528; OSCJ]."
• When a judge leaves a fiat that reads: "I further direct that if an application should be renewed, that notice of a prior application is to be given to the Judge having the new application." She is allowing the affiant to try again before another judge {para 46}
  [S. (S.J.); SKQB].
• Where new information arises during the course of an ongoing investigation there is nothing improper when a fresh application is made, notwithstanding that previous applications had been denied
  [Eng, M.B.; BCCA].
• Applying for further search warrants while the application to quash others was still pending in regard to the same matter is a form of judge shopping and will result in all of the search warrants being quashed
  [Re a search warrant issued by Bence J.P.; [1960] 129 C.C.C. 270; SKQB].
• An application is rejected by one justice of the peace. The applicants then take the same application to another justice of the peace, who granted it. "In addition to the observations I have made, I concur in the observations of defence counsel that this amongst other things, is a case which constitutes judge shopping for the purpose of securing the issue of a search warrant, and that conduct cannot be condoned
  [Low; (unreported, October 2, 1996, WL 1794636); ABQB]."
• "The Court must maintain opened and ready access, especially in serious cases such as applications to stay deportation orders. However, that important purpose must not be debased by repetitious applications involving forum shopping and judge shopping. This application is an abuse of the process. It should not have been brought. The application is dismissed {para 20}
  [Zolfiqar, Z.; FCC]."
  Also review [Sittampalam, J.; {paras 32 and 33}; FCC].
• Also review Conflicts.

End of Judge Shopping

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