Hunter was charged with possession of marihuana for the purposes of trafficking. At the outset of the trial a voir dire was conducted both to obtain disclosure of the sealed information used when the search warrant was obtained and for exclusion of the evidence obtained as a result of the search of the premises of the respondent.
The trial judge, finding that disclosure would reveal the identity of the informant, ruled that Hunter should not have access to the information about the issuing of the warrant. Because of this, Hunter's right to full answer and defence under s.11(d) was violated and the evidence must be withheld under s.24(2). The Crown thus had no evidence and Hunter was acquitted, which the Crown appealed.
- When is disclosure of information used to obtain a search warrant to be disclosed?
Appeal allowed, new trial ordered.
Cory, writing for the court, held that there is a balancing of principles to be performed. The object of disclosure is to make available to the accused enough information to enable the courts to determine whether reasonable and probable grounds for the warrant have been demonstrated. This must be weighed against the importance of informers to society. It is incumbent on the trial judge to review the information with the object of deleting all references to the identity of the informer prior to disclosure.
If the Crown feels it would be prejudicial to the administration of justice to produce the informant, they may elect not to proceed or to proceed on the basis of a warrantless search in which case exclusion under s.24(2) of the Charter must be considered.
- An accused has the right to reasonable disclosure of information behind the issuance of a search warrant, even if such disclosure reveals the identity of an informer.
- The trial judge should edit the disclosure document to protect the identity of the informant where possible.