Standard of Review of a Judicial Authorization
- 1 General Principles
- 2 Errors in Information to Obtain
- 3 Excised and Redacted Portions of ITO
- 4 Procedure for Review of Warrant
- 5 Leave to Cross-Examine Affiant ("Garofoli" Motion)
- 6 Amplification Evidence
- 7 Effect of an Invalid Warrant
Before a party can make such an application to exclude evidence collected by way a of search warrant, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.
A "Garofoli Application" refers to the procedure for determining the validity of a judicial authorization.
Test on Review
The base test for review of a search warrant is "whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge".
This test contemplates whether the information fond in the ITO by itself and "drawing reasonable inferences" could have been sufficient.
A reviewing court may invalidate a warrant despite there being reasonable and probable grounds where it is for the purpose of protecting "the process and the preventative function it serves". This is however a high threshold.
When assessing the validity of the ITO the analysis must not elevate quibbles into substance.
A warrant is to be evaluated based on what the investigators did do, not what the investigators could have done. A failure to take investigative steps is only relevant as it relates to whether the ITO discloses sufficient grounds to authorize the warrant.
Where there is an application to quash a warrant and return seized items, it is proper that the police refrain from re-applying for a new search warrant. It is preferred that they wait until such time as the warrant is quashed and then re-apply.
The analysis of a warrant and ITO should be on "the whole of the document, not a limited focus upon an isolated passage or paragraph". It should be a "common sense review not line-by-line word-by-word dissection"
The applicant, in drafting the ITO, must "make full, frank and fair disclosure of all material facts in the ITO supporting the request".The facts must be set out "truthfully, fully and plainly". There must be "candour" and "accuracy".
An appeal of a trial judge decision reviewing a search warrant issued by a justice of the peace is to be reviewed for "whether the reviewing judge erred in law by interpreting and applying the standard to determine whether the issuing judge properly issued the warrant".
R v Scott, 2015 MBQB 87 (CanLII), at para 8
R v Araujo, 2000 SCC 65 (CanLII) at para 51
see also: R v Morelli, 2010 SCC 8 (CanLII) at para 40
R v Campbell, 2011 SCC 32 (CanLII) at para 14
R v Dionisi, 2012 ABCA 20 (CanLII) at para 24
R v Lee, 2011 ABCA 310 (CanLII) at para 14
- R v Wallace, 2016 NSCA 79 at para 27
R v Fan, 2013 BCSC 445 (CanLII) at para 17
R v Bishop, 2010 BCSC 1927 (CanLII), at paras 47-61
R v Colbourne, 2001 CanLII 4711 (ON CA),  O.J. No. 3620 (C.A.)
Fan, supra at para 17
Lahaie v Canada (Attorney General), 2010 ONCA 516 (CanLII) at para 40
- R v Concepcion, 1994 CanLII 1746 (BC CA), (1994), 48 BCAC 44
R v Morley, 2013 BCSC 463 (CanLII), at paras 21 to 22
- R v Du, 2004 ABQB 937 (CanLII) at para 20 ("While the Crown quite properly took the view that it should not apply for a fresh warrant while the issue of the stay [arising from a quashed warrant] remained extant, there was nothing to prevent the Crown from doing or preparing whatever was necessary for an application to be brought almost immediately after the results of this application were known.")
R v Cunsolo,  OJ No 3754, 2008 CanLII 48640 (ON SC), at para 135
R v Nguyen, 2007 ONCA 24 (CanLII) at para 48
R v NNM, 2007 CanLII 31570 (ONSC) at para 320
NNM, ibid. at para 320
Araujo, 2000 SCC 65 (CanLII) at 469 to 470
- NNM, ibid. at para 320
R v Morris, 1998 CanLII 1344 (NSCA) at p. 551 ("requirement of candour is not difficult to understand; there is nothing technical about it")
R v Hosie, 1996 CanLII 450 (ONCA) at p. 399 (a justice can only perform their duty if "provided with accurate and candid information")
R v Agensys Intl Inc, 2004 CanLII 17920 (ONCA) at p. 491
- R v Liberatore, 2014 NSCA 109 (CanLII)
Presumptions and Burdens
A warrant is presumed valid. The applicant bears the burden to establish that there was insufficient basis for issuing the warrant. This presumption applies not only to the warrant but the ITO as well.
R v Campbell, 2010 ONCA 588 (CanLII) at para 45 aff'd at 2011 SCC 32 (CanLII)
R v Campbell, ibid. at para 45
R v Shier,  OJ No 5751 (*no link) at para 48
Quebec (Attorney General) v Laroche, 2002 SCC 72 (CanLII),  3 SCR 708
- R v Collins, 1989 CanLII 264 (ON CA), (1989) 48 CCC (3d) 343 at p. 356
Degree of Deference
The reviewing judge is not examining police conduct with great attention to minor details or dissection.  Rather the judge must look at whether there is sufficient evidence for the warrant. The warrant must be read in its entirety.
The test on review is not whether the reviewing judge would have granted the warrant but whether there was "reliable evidence that might reasonably be believed" on which the warrant could have been issued.
The reviewing judge should not "substitute his or her own view for that of the authorizing judge."
A search of a private premises "is a derogation from common law rights of ownership. The necessary formalities in the execution of the warrant must, therefore, be strictly observed".
The review should not be an examination of police conduct "with a fine-tooth comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence".
- R v Grant 1999 CanLII 3694 (ON CA), (1999), 132 CCC (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused  S.C.C.A. No. 168 (Q.L.), 150 CCC (3d) vi)
R v Chan, 1998 CanLII 5765 (ONCA),  O.J. No. 4536 (C.A.) at para 4
R v Melenchuk and Rahemtulla,  BCJ No. 558 at para 15-18
Simonyi-Gindele et al v British Columbia (Attorney General), 1991 CanLII 1341 (BC CA), (1991), 2 BCAC 73 (C.A.) at para 21 ("It is not appropriate, when testing the validity of a warrant, to parse and microscopically examine words, phrases or paragraphs in isolation, as the appellants urge us to do.")
R v Saunders, 2003 NLCA 63 (CanLII), the reviewing judge should not to deconstruct every paragraph in the ITO
- R v Nguyen, 2011 ONCA 465 (CanLII) at para 57
- Simonyi-Gindele, supra at para 21 ("The warrant must be read in its entirety in order to arrive at the meaning that the person exercising it would attribute to it")
R v Araujo, 2000 SCC 65 (CanLII),  2 SCR 992 at para 54
See also R v Witaker 2008 BCCA 174 (CanLII)
R v Garofoli, 1990 CanLII 52 (SCC),  2 SCR 1421 at para 56
R v Grant, 1993 CanLII 68 (SCC),  3 SCR 223 at para 49
R v Veinot (1995), 144 N.S.R. (2d) 388 (C.A.) at p. 391, 1995 CanLII 4262
R v Morelli, 2010 SCC 8 (CanLII) at para 40
- Garofoli, supra
- R v B.(J.E.), 1989 CanLII 1495 (NS CA), (1989), 52 CCC (3d) 224 (NSCA)
R v Nguyen, 2011 ONCA 465 (CanLII) at para 57
Quality of Drafting
It is only important that the "core substance of the ITO could support the justice of the peace's exercise of discretion or issue the warrant".
Police are not "legal draftspersons" and cannot be expected to "spell out things with the same particularity of counsel"
The warrant must be read in its entirety to understand its meaning.
The ITO is examined on the whole, and not piecemeal. 
It should be "reliable, balanced and material facts supporting the asserted grounds of belief". It should be "clear, concise, legally and factually sufficient"
The ITO should not need to "replicate a Crown disclosure brief" and it does not "need to include every minute detail of the police investigation".
A lack of chronological order or an otherwise confusing order is not necessarily fatal so long as it has a reasonable approach.
Grammatical errors that do not "mislead" in a significant way.
- R v Nguyen, 2011 ONCA 465 (CanLII) at para 58
- R v Pires 2005 SCC 66 (CanLII) at para 30
R v Ngo, 2011 ONSC 6676 (CanLII) at para 34
Ngo, ibid. at para 34 per Hill J
R v Durling, 2006 NSCA 124 (CanLII) at para 19
R v Sanchez, 1994 CanLII 5271 (ONSC) at p. 364
R. v Melenchuk (1993), 1993 CanLII 1011 (BC CA) at para 15 ("It would be impractical to expect of an officer swearing an information in these circumstances the precise prose of an Oxford grammarian, the detailed disclosures of a confessional and the legal knowledge of a Rhodes scholar.")
- Simonyi-Gindele v Sliter, 1991 CanLII 984 (BC CA) ("The warrant must be read in its entirety in order to arrive at the meaning that the person exercising it would attribute to it.")
R v Whitaker, 2008 BCCA 174 (CanLII)
R v Brachi, 2005 BCCA 461 (CanLII)
Re Church of Scientology & the Queen (No. 6) 1987 CanLII 122 (ON CA), (1987), 31 CCC (3d) 449 (Ont. C.A.)
Ngo, supra at par 34
Ngo, supra at para 34
CBC v AG of NB, 2000 SCC 65 (CanLII) at p.470
R v Ling, 2009 BCCA 70 (CanLII) at para 43
e.g. R v Morley, 2013 BCSC 463 (CanLII) at para 45
R v McNeice, 2010 BCSC 1544 (CanLII), at para 33
Errors in Information to Obtain
In the course of a review of an ITO and warrant, the discovery of "fraud, non-disclosure, misleading evidence and new evidence" is relevant but their "sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge".
R v Hafizi, 2016 ONCA 933 (CanLII) at para 44
Material Omissions and Non-Disclosure
A failure to draft an ITO that is full, fair and frank may be a breach of s. 8 of the Charter.
"Materiality" must be evaluated on the "totality of the circumstances".
It is improper for the warrant to contain incomplete, misleading or misrepresented information on the investigation. This can occur where the affiant is deliberately kept out of the investigation and only given favourable information to support the warrant. 
Material non-disclosure of fact made strategically by the police (such as for a improper motive including the intention to mislead the authorizing justice) may invalidate the warrant regardless of whether there existed reasonable and probable grounds to authorize the warrant.
Non-disclosure of "neutral" facts is acceptable and not necessary.
The ITO does not have to include non-observed details.
Where there is a innocent material omission (ie. an omission without any improper motive), the reviewing judge must ask "whether the omission leaves the issuing judge with an incorrect impression or an insufficient basis on which to issue the warrant".
The affiant's failure to indicate a source's criminal record will only be a Charter breach of s. 8 where the information is "material".
As a "best practice for police", they should provide always provide an informant's criminal record.
R v Rocha, 2012 ONCA 707 (CanLII)
R v Nguyen, 2011 ONCA 465 (CanLII) at para. 57 and 58
- e.g. R v Morelli 2010 SCC 8 (CanLII),  1 SCR 253, at para 58
R v M(NN) 2007 CanLII 31570 (ON SC), (2007), 223 CCC (3d) 417 (Ont. Sup. Ct. of Jus.) at para 354 (“... as a straw man affiant apparently deliberately kept in the dark ...”)
R v McElroy, 2009 SKCA 77 (CanLII), at para 30
R v Araujo, 2000 SCC 65 (CanLII)
- R v Readhead, 2008 BCCA 193 (CanLII)
- R v Nguyen, 2011 ONCA 465 (CanLII) at para 49, 50
- McElroy, supra at para 30
R v White, 2017 ONSC 5647 (CanLII), at para 35
White, ibid. at para 34
R v Rose, 2015 ONCA 183 (CanLII)
False or Misleading Information
Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization."
The warrant will typically be invalid if the misstatement or omission was deliberate or a finding of bad faith.  The quashing is necessary to avoid corruption of the process. However, where the justice "could have" granted the warrant regardless of the deception, it may still be valid.
However, at times a poorly drafted and misleading warrant will, on its own, invalidate the warrant.
Deliberately misleading information should be excised from the ITO. Where it taints the ITO as a whole it may invalidate the warrant.
A "deliberately misleading" ITO will invalidate the warrant.
Error on Source
A warrant will be invalidated by the claimed basis to be "reliable, confidential sources" when in fact it was based on a wiretap.
- R v Bisson, 1994 CanLII 46 (S.C.C.),  3 SCR 1097; (1995), 94 CCC (3d) 94 at p. 1098
R v Melenchuk, 1993 CanLII 1011 (BC CA), (1993), 24 BCAC 97 (BCCA)
R v Donaldson 1990 CanLII 630 (BC CA), (1990), 58 CCC (3d) 294 (BCCA) - police deliberated withheld information from the JP
R v Sismey 1990 CanLII 1483 (BC CA), (1990), 55 CCC (3d) 281 at p. 285
R v Innocente 1992 CanLII 2449 (NS CA), (1992), 113 N.S.R. (2d) 256 (S.C.)
R v Silvestrone 1991 CanLII 5759 (BC CA), (1991), 66 CCC (3d) 125 (BCCA) at p. 136
R v Brassard, 1992 CanLII 8136 (SK QB), (1992), 77 CCC (3d) 285 (Sask.Q.B.)
R v Dellapenna, 1995 CanLII 428 (BC CA), (1995), 62 BCAC 32 (BCCA)
R v Fletcher, 1994 CanLII 4169 (NS SC), (1994), 140 N.S.R. (2d) 254
R v Maton, 2005 BCSC 330 (CanLII) at para 26
R v Morris 1998 CanLII 1344 (NS CA), (1998), 134 CCC (3d) 539 (NSCA) at para 44 - officer must exercise "honesty, good faith and diligence"
- R v Bisson 1994 CanLII 46 (SCC), (1994), 94 CCC (3d) 94 (S.C.C.) upholding Proulx J.A. in 1994 CanLII 5328 (QC CA), (1994), 87 CCC (3d) 440 (Que.C.A.)
- e.g. R v Norris (1993), 35 BCAC 133, 1993 CanLII 681 (BC CA)
R v Morris at p. 553 (CCC)
- R v Innocente, 1992 CanLII 2449 (NS CA)
- R v Donaldson, 1990 CanLII 630 (BC CA)
Excised and Redacted Portions of ITO
Inaccurate, omitted, or misleading information in an ITO does not necessarily render it invalid. Inaccurate information can be excised or expunged from the ITO, and re-evaluated without the offending information.
Where a reviewed ITO contains redacted content, the reviewing judge must consider whether, given the information available in the ITO, the justice could have issued the warrant on the basis of what remains of the edited ITO.
See R v Bisson 1994 CanLII 46 (SCC),  3 SCR 1097, (1994) 94 CCC (3d) 94 at pp. 95-96
R v Budd, 2000 CanLII 17014 (ON CA) at para 20-23
R v Agensys International Inc., 2004 CanLII 17920 (ON CA) at para 32
R v Morley, 2013 BCSC 463 (CanLII) at para 33
- Pitre v R., 2011 NBCA 106 (CanLII) at para 34
Procedure for Review of Warrant
When an accused person seeks to challenge an ITO supporting a warrant by cross-examination of the informant the procedure should go as follows:
- The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted;
- If the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused must obtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination;
- Cross-examination should proceed to the extent permitted by the order granting leave;
- Re-examination, if any, should follow the cross-examination; and
- The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant.
R v Wilson, 2011 BCCA 252 (CanLII) paras 62-67, 69
Threshold Test to Challenge a Warrant
There is no open right to challenge a search warrant. The accused must apply for the right to have a voir dire by way of a "Vukelich hearing". The determination of whether to permit the accused to challenge the warrant can be made on the basis of submissions of counsel. Where the threshold has been passed, it does not necessarily follow that witnesses be called. The court may allow only arguments based on the face of the warrant. 
- R v Vukelich (1996), 108 CCC (3d) 195, 1996 CanLII 1005 (BC CA)
Vukelich, ibid. at paras 17, 26
Wilson at para 62
- Wilson, supra at para 62,63
Types of Challenges to the Warrant
Challenging to a warrant may come as an attack on the facial or sub-facial validity. The court has discretion whether to treat each attack separately or in a single voir dire.
An attack on facial validity involves an examination of the ITO by itself, not involving on amplification or record evidence, and determine whether a justice could have issued the warrant.
An attack on sub-facial validity involves an examination of the form of the ITO with a view to "impeach the reliability of its content" and to determine "whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant". This form of attack can involve the use of amplification evidence, but it should not expand the review to permit the judge from giving his opinion on whether he would have granted the warrant. The reviewing judge must determine whether "authorizing justice could have issued the warrant" if the judge had been aware of the amplification evidence.
- R v Sadikov, 2014 ONCA 72 (CanLII) at para 36
Sadikov, ibid. at para 37
R v Araujo, 2000 SCC 65 (CanLII),  2 SCR 992 at para 19
R v Wilson, 2011 BCCA 252 (CanLII) at para 39
Sadikov, ibid. at para 38
Araujo, supra at para 50
Wilson, supra at para 40
- Sadikov, supra at para 38
Sadikov, supra at para 38
Araujo, supra at para 51
Leave to Cross-Examine Affiant ("Garofoli" Motion)
When conducting an attack on the sub-facial validity of the warrant, the accused may seek leave to cross-examine the affiant who swore the ITO for the purpose of questioning the affiant's reliability and credibility.
The general rule is that leave should be granted where the judge is "satisfied that cross-examination is necessary to enable the accused to make full answer and defence".
The accused must specifically establish "that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization". Phrased differently, the test is whether there is a "reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge". Generally, this would only include issues of credibility and reliability of the affiant and their sources.
Cross-examination should not be permitted where "there is no reasonable likelihood that it will impact on the question of admissibility of the evidence".
Where cross-examination is permitted, it should be restricted to "questions that are directed to establish that there was no basis which the authorization could have been granted". The judge may further limit the area of cross-examination to specific issues of controversy.
It should not be used to extend the hearing unnecessarily and should not permit discovery of confidential sources.
Where the court denies leave to cross-examine the affiant, the defence may still call other amplification evidence to attack reliability.
The test applied to affiants of a wiretap is not a stringent one.
See Also: R v Pham, 2009 CanLII 60792 (ON SC) for a comprehensive review by Justice Hill.
R v Sadikov, 2014 ONCA 72 (CanLII) at para 39
- R v Garofoli, 1990 CanLII 52 (SCC),  2 SCR 1421 at para 88
- Garofoli, ibid. at para 88-89
R v Pires; R v Lising, 2005 SCC 66 (CanLII),  3 SCR 343 at paras 3
Sadikov, supra at para 45 ("reasonable likelihood that the proposed cross-examination will elicit evidence that tends to discredit the existence of a condition precedent to the issuance of the warrant")
- Sadikov, supra at para 40
- R v Pires; Lising, supra at para 31
- Garofoli, supra at paras 88-89
- Pires, supra at para 10
Garofoli, supra at para 87
Pires, supra at para 10
- Sadikov at paras 41, 45
- R v Williams 2003 CanLII 18484 (ON CA), (2003), 181 CCC (3d) 414 (Ont. C.A.) at para 11
The reviewing judge is entitled to consider "evidence bearing on the existence in fact of reasonable and probable cause shown to be in the knowledge of the police at the time the warrant was sought.” 
Amplification evidence can be elicited at a voir dire to correct minor errors in the ITO. This will be permitted as "long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice." 
Amplification evidence should not be used "to remove the requirement that the informant make their case to the issuing justice in the initial application" or else it "would turn the prior authorization process into a sham." It cannot be used to "retroactively authorize a search that was not initially supported by reasonable and probable grounds".
It can be permitted to amplify an innocent mis-statement or mis-characterization within the ITO.
Evidence obtained after the execution of the warrant cannot be admitted as amplification evidence.
It appears that amplification evidence can take the form of transcripts from preliminary inquiries, police notes and reports.
- R v Gordon, 1999 CanLII 18640 (MB CA), (1999) 138 Man. R. (2d) 298 (C.A.) at par. 36 citing R v Morris 1998 CanLII 1344 (NS CA), (1998), 134 CCC (3d) 539 (NSCA)
- R v Morelli, 2010 SCC 8 (CanLII) at para 41
R v Morley, 2013 BCSC 463 (CanLII) at para 37
- Morelli, supra at para 42
R v Voong, 2013 BCCA 527 (CanLII) at para 56
- R v Plant, 1993 CanLII 70 (SCC),  3 SCR 281 - ITO was overly specific of address, when informant gave more general description. Amplification clarified how full address was obtained.
e.g. see R v MacDonald, 2014 NSSC 218 (CanLII) at para 15
Effect of an Invalid Warrant
If the items seized are needed for an ongoing or anticipated prosecution, the court can refuse to return the items.
There are no formal requirements necessary for the Crown to establish the need for the items.
Factors to consider include:
- The conduct of the prosecuting authorities in relation to the search and seizure;
- the seriousness of the alleged offence,
- the degree of potential cogency of the things in proving the charge,
- the nature of the defect in the warrant and
- the potential prejudice to the owner from being kept out of possession.
- R v Du, 2004 ABQB 937 (CanLII) at para 8
Du, ibid. at para 8
Du, ibid. at para 8
- Du, ibid. at para 8
- Du, ibid. at para 8