R v James: When do warrants become stale?
Warrants play a key role in protecting the civil liberties of Canadians. In Hunter v. Southam,  2 SCR 145 the Supreme Court established that warrantless searches are presumptively unreasonable (Hunter v. Southam, 161). Warrantless searches therefore, unless the Crown can prove otherwise, violate s. 8 of the Charter of Rights and Freedoms [Charter]. The implication is that Canadians in many circumstances are protected from searches unless the police have acquired enough evidence, applied for a warrant, and it has been properly approved by a justice of the peace.
In a recent decision of the Supreme Court, R. v. James, 2019 SCC 52 [James SCC], the panel was tasked with deciding what the standard of review is for the issuance of a warrant and if a warrant can be granted based on the propensity of a person to commit crimes. The panel also considered how to determine when information used in the application for a warrant is too dated.
The facts in James were discussed in detail in the Ontario Court of Appeal’s judgement, R. v. James, 2019 ONCA 288 [James ONCA]. The police were conducting an undercover investigation into the activity of an individual known as MD who was suspected of weapons related offences. At some point during the investigation, MD began speaking with the undercover officer about purchasing cocaine from an individual named Primo. Primo was later identified as the accused, Justin James (James ONCA, para 2).
On December 18th, 2015, MD owed the undercover officer three ounces of cocaine. He explained to the officer that he could not provide him with the cocaine, because Primo was not arriving until the next day (James ONCA, para 3). On February 3rd, 2016, the officer met for lunch with MD and another drug trafficker. MD showed the officer $50,000 in the trunk of his car, which he said he planned to use to purchase cocaine from Primo later that day. The officer gave MD $16,500 to go towards purchasing more cocaine. MD left after saying he was going to meet with Primo and later returned with cocaine for the officer (James ONCA, para 6).
The police sought and received a warrant on February 26, 2016 to search the accused’s vehicle on the basis that the accused trafficked drugs on December 18, 2015 and February 3rd, 2016 and that evidence of an offence was likely to be found in the vehicle (James ONCA, paras 8-9). As a result of the search, the accused was charged with drugs and firearms offences.
The Court had to decide if the police had provided the justice of the peace with enough evidence to justify the issuance of a warrant. If a search and seizure is conducted without a valid warrant, then it is presumptively unreasonable. As previously mentioned, an unreasonable search and seizure is a violation of s. 8 of the Charter. When the police want a warrant under s. 11 of the Controlled Drugs and Substances Act, SC 1996 c 19 [CDSA] they must make an ex parte application to a justice. This application, called an Information to Obtain (ITO), must persuade the justice that there are reasonable grounds to believe that at a specific location there are controlled substances, offence-related property, or evidence of anything that would constitute an offence under the CDSA.
The court of first instance found that the information set out in the ITO was insufficient to establish that there were reasonable grounds to believe that contraband would be found in the vehicle. The evidence provided was that the accused was likely involved in drug transactions on December 18th and February 3rd (James ONCA, para 12). However, Justice Rogin, the presiding justice, took issue with the 23-day delay between the evidence of the drug transaction (February 3rd) and the day the warrant was executed (February 26th). He decided that warrants should be executed in a reasonable time, while the information provided is current. The trial judge stated that to grant a warrant based on the information provided would be to do so based only on the accused’s bad reputation (James ONCA, para 12). After finding that the warrant was invalidly issued, the trial judge excluded the evidence found in the vehicle under s. 24(2) of the Charter.
The majority opinion of the Ontario Court of Appeal, written by Justice Pardu, dismissed the appeal and found that the warrant was improperly issued and that the evidence obtained was properly excluded. The dissenting judgement written by Justice Nordheimer found the warrant to be valid.
The SCC’s Take:
A majority of the Supreme Court—Justices Wagner, Moldaver, Côté, Rowe, and Kasirer—allowed the appeal and ordered a new trial in an oral judgment. They indicated their substantial agreement with Justice Nordheimer at the Ontario Court of Appeal. Meanwhile, Justices Abella, Karakatsanis, Brown, and Martin would have dismissed the appeal for the reasons offered by Justice Pardu.
Justice Nordheimer argued that Justice Rogin made three errors of law in finding that the warrant should not have been issued. First, he did not apply the proper test for review of a warrant authorization. The trial judge is not to, as Justice Rogin did, review and re-weigh all of the evidence in the ITO and then decide if he or she would have issued a warrant (James ONCA, para 52). The test is only whether the issuing justice could have approved the warrant based on the contents of the ITO (James ONCA, para 52). Second, the trial judge committed an error of law by limiting the inquiry to the question of whether there was sufficient evidence that illegal drugs would be found in the accused’s vehicle. The warrant would have been properly issued if there was sufficient information which supported that evidence of any CDSA offence would be found in the vehicle (James ONCA, para 53). Third, the court of first instance erred in concluding that the information provided in the ITO was too dated. There is no fixed test on how to determine if information has become too old to be relevant (James ONCA, para 55). The appropriate approach is to review the information on “a common sense and practical basis, taking all of the prevailing circumstances into account” (James ONCA, para 64). The ITO established enough evidence that the accused was at least one of MD’s cocaine suppliers (James, para 56). It is contrary to common sense that after delivering a large amount of cocaine, the accused would suddenly cease to be involved with the drug trade three weeks later (James ONCA, para 66). The ITO establishes reasonable and probable grounds to believe, given the accused’s pattern of behaviour, that the search of the accused’s vehicle would produce evidence of drug offences (James ONCA, para 75).
Justice Pardu substantially agreed with the trial judge’s reasons. The evidence provided a reasonable basis to believe that the accused delivered illicit drugs to MD on February 3rd. However, the evidence did not establish a pattern of drug trafficking, nor reasonable and probable grounds to believe that evidence of drug trafficking would be found in the accused’s car (James ONCA, para 21). Evidence that an individual has a propensity to commit a particular type of crime is weak justification for a warrant. Such evidence invites prejudice and stereotypes in the absence of evidence (James ONCA, para 22). The implicit argument in the ITO is that since the accused has been convicted of past drug offences and there is evidence that he committed drug offences on February 3rd, that it can be presumed that there would be evidence of drug dealing three weeks later (James ONCA, para 22). Justice Pardu would have excluded the evidence under s. 24(2) of the Charter, because he believed the trial judge’s analysis should attract deference and that his position is well-justified (James ONCA, paras 37-38).
James, although one of the less significant criminal law decisions of 2019, has two positive implications. James signals that courts ought to give a degree of deference to the decision of a justice of the peace to issue a warrant. It is preferable that the decision to grant a warrant is given deference, because if warrants were found to be improperly issued too regularly, it would bring the administration of justice into disrepute. Warrants are a form of judicial authorization which police agencies rely upon to ensure their conduct is Charter-compliant. If judicial authorizations given by one judicial authority are regularly invalidated after the fact by another judicial authority, it reduces the reliability and confidence that can be placed in judicial decisions.
James also signals that courts will not consider evidence of being in the drug trade as propensity evidence for the purpose of issuing a warrant. Propensity evidence is evidence that is introduced to show that because an accused has done bad things in the past, they are more likely to have done similar things since. For example, someone might try to argue that an accused who has been violent in the past is inclined or predisposed to violence. Propensity evidence is generally thought of as weak because it often relies on stereotypes or prejudice in the absence of other evidence. It is wise to distinguish evidence that someone has a career in organized crime from propensity evidence. Unlike propensity evidence, this type of evidence shows that an accused has a particular unlawful occupation. It does not rely on stereotypes or prejudice. Rather, it relies on the common sense inference that someone who works in an unlawful occupation will often continue to do so—at least until they are caught.