The issue of whether multiple applications for a search warrant can constitute improper “judge shopping”, was recently considered by the Ontario Court of Appeal on October 19, 2021, in R. v. Bond, 2021 ONCA 730. At paragraphs 28 to 33, the Court stated:
I begin by observing that I do not think that there should be a bright-line rule that the police cannot make a second application for a warrant if the first application is rejected. It needs to be recalled that there is no appeal from the initial refusal: see R. v. Campbell, [2014] O.J. No. 6541 (S.C.), at para. 40.
On this point, I agree with what Thackray J.A. said in R. v. Duchcherer, 2006 BCCA 171, at para. 29:
The procedure of applying successively for search warrants cannot reasonably be said, as such, to be an abuse of process or a “subversion” of the judicial system. Within the process there can, of course, be abuses that would lead to such a finding. It will be a fact driven decision in each case whether the circumstances amount to an abuse of process.
My second contextual observation is that the second judge considering whether to grant the search warrant is not sitting in appeal of the first judge’s decision nor in review of that judge’s decision by way of prerogative writ. As Thackray J.A. said in Duchcherer, at para. 17, “where a judge knows of the previous application to a justice of the peace for a search warrant, but exercises his own discretion, it is a hearing de novo, not a review of the decision of the justice of the peace.”: see also R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 41.
This court in Colbourne, at para. 42 began to address the issue of whether a warrant could be granted on a second application. I agree with Doherty J.A. that “had the second information been the same as the first information, the initial refusal would have played a much more significant role in how the second Justice of the Peace exercised his or her discretion.” While it does play a role and should be considered by the second application judge, the fact a warrant request has been rejected is not determinative to the second request. This is supported by Doherty J.A.’s further reasoning in Colbourne, at para. 42, that he “need not decide whether I would go so far as to say that two applications based on the same information are improper even if full disclosure of the initial refusal is made.”
Turning to the merits of the appellant’s submission on this issue, in my view, the disclosure to the second application judge of the previous refusal and the reasons for that refusal ensured the openness and transparency of the process that the appellant submits was lacking. Those factors were endorsed by McMahon J. in Campbell, at para. 56:
In submitting the materials the officer should ensure the ITO includes the particulars of the earlier refusal, including the time, name of the judicial officer, and the reasons of refusal.
A copy of any reason or endorsement provided by the judicial officer who refused the warrant should be an appendix to the ITO.
As the trial judge noted in the footnote dealing with the judge-shopping issue, the police complied with these factors. The second application judge, who issued the search warrant, was fully apprised of the previous application, its timing, the fact that it had been rejected, and the reasons for the rejection. He was well-positioned to consider the application de novo.
