Judicial Authorization Standard of Review

This page was last substantively updated or reviewed April 2024. (Rev. # 96337)

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General Principles

Garofoli Applications

A "Garofoli Application" refers to the procedure for determining the validity of a judicial authorization. This test applies equally to any motion to quash a court authorization.

Burden

A warrant, like any court order, is presumed valid. Consequently, the burden is upon the accused to prove the ITO was insufficient.

Standing

Before a party can make such an application to exclude evidence collected by way of a search warrant, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.

Reliance on Record

A trial judge is entitled to determine whether an authorization "could have been granted based on the record that was before the authorizing justice, as amplified on review."

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."

The review is not a "de novo" hearing into its validity.

The standard of review for an authorization is a "limited" one. If the authorizing justice "could have" issued the warrant, then the judge should not interfere. Stated differently, the reviewing judge must be satisfied that there is "no justifiable basis" upon which the justice could have granted the warrant.

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.

Drawing Inferences

This test contemplates whether the information found in the ITO by itself and "drawing reasonable inferences" could have been sufficient.

Invalidating a Warrant with RPG

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.

Assessing Reliability

There is no need for the affiant to expressly refer to the testimonial reliability of the informant. The reviewing judge can assess that from the factual circumstances revealed in the affidavit. The court is to take a "global view" of the information contained in the affidavit.

Assessing ITO

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."

However, there is no need to include every single piece of information. It is only "material facts" that must be included.

Unsealing the Filings

It has been suggested that as soon as the investigation is complete the Crown should anticipate the need of defence to access the warrant filings and immediately apply to unseal them and disclose despite they are not technically in the possession of the Crown.

Appeal

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."

An appeal is only available on error of law or material misapprehension of evidence.

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. A facial challenge alleges "that the record before the authorizing judge was insufficient to make out the statutory preconditions." A sub-facial challenge alleges that "the record did not accurately reflect what the affiant knew or ought to have known."

Facial validity

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.

Sub-facial validity

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." The process is one of testing the accuracy of the ITO against the reasonable belief of the affidant, not against the ultimate truth of what was asserted. The assessment is upon what the affiant knew or ought to have known when the ITO was sworn.

The affiant cannot be permitted to "ignore signs" that they may be mislead, but in absence of "some indication" that there was something amiss, the affiant it not at fault.

The affiant is not expected to undertake their own investigation and may rely on hearsay.

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.

A sub-facial review turns on the question of what the affiant knew or ought to have known at the time of the swearing of the affidavit.

Reasonable Grounds

See Reasonable and Probable Grounds

Standing

An accused who was subject of a judicial authorization that relied upon the results of a previous authorization does not have standing to challenge that previous authorization as it did not contemplate the accused.

A co-conspirator does not have standing to challenge the wiretap that is alleged to have breached another co-conspirator's rights.

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.

Degree of Deference

A review should deferential to the authorizing justice.

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."

Quality of Drafting

Flaws are to be expected. Inaccuracies or material facts not disclosed does not necessarily detract from the existence of statutory preconditions.

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." They should not be expected to spell things out "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.

Errors, Omissions and Mischaracterizations in the Warrant Order

Time Limitation on the Search

See Information to Obtain a Judicial Authorization (Element C)

Overbroad Authority

It is essential that the warrant not be overly broad. The description of the targets of the search should not be so vague as to give the police the ability to rummage through the premises.

A warrant permitting a search of a computer does not give unfettered access to all the data on the computer. The warrant should detail the types of evidence sought.

Errors, Omissions and Mischaracterizations 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."

Affiant Standard of Care

Carelessness in drafting is not generally sufficient to invalidate the warrant. It must be intentionally false statements or omissions. But it is not automatic. The court must consider their impact upon the basis of the decision to authorize.

Knowledge Requirement of The Affiant for Errors or Omissions

Errors or omissions that are found must be shown to have been known, or should have been known, by the affiant.

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 an 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 an 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."

Criminal Record

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.

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.

Deliberate Misleading

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.

Failure to Take Investigative Steps

It is generally accepted that in the Garofoli analysis challenging a warrant, the police "are to be judged on what they did, not what they could have done." Thus, the failure of taking further investigative steps before seeking a warrant will not invalidate the warrant.

Excising or Severing Errors

Where an authorization contains both valid and invalid parts, the court is permitted to excise the invalid parts "So long as they are not so interwoven that they cannot be separated."

However, there's the possibility for confusion or over-broad seizure then the warrant should not be excised.

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.

Subversion Doctrine

The "subversion doctrine" is a form of "abuse of process" that will invalidate a warrant where there was improper conduct prior to the authorization being granted, such as "non-disclosure" or "misleading disclosure" that amounts to “undermining, corrupting, weakening, destroying or disrupting a system or process." Under this doctrine, the court has residual discretion to quash a warrant that is otherwise properly authorized.

The threshold to set aside a warrant is high.It is a power only exercised in "rare circumstances." The subversion must be so severe that the conduct amounts to abuse of process.

Reliance on grounds that later prove to be false does not automatically invalidate a warrant. An affiant who is unaware of the misconduct of other police members, with nothing alerting them to the misconduct will potentially not invalidate the warrant.

Misconduct that is "detached" from the authorization process will be more difficult to justify as reason for quashing the warrant.

Procedure for Review of Warrant

• Procedure for Review of a Judicial Authorization

Reviewing Redacted or Sealed ITOs

In many instances, the authorizing justice will grant a "sealing" order under s. 487.3. The Crown will typically provide defence with an redacted copy of the ITO to defence counsel.

Where a challenged ITO has been redacted to an extent that the redacted information is insufficient to support the issuance of the warrant, the Crown can invoke "step six of Garofoli" which permits the defence to rely on a vetted summary of redacted information. A summary of the vetted portion of the ITO is reviewed by the judge and then provided to defence counsel. The summary must provide sufficient detail as to permit full answer and defence. If the summary is sufficient, the judge may review and rely on the redacted portion of the ITO.

The accused may use the redacted ITO, the summary of the redacted portions, and any other admissible evidence, to convince the judge that the ITO "could not justify the issuance of the warrant."

This process balances the conflicting interests of enforcing law, protecting privilege, and the accused's right to full answer and defence.

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.

Threshold

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." In context of an affiant, 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, including the discrediting of one or more of the preconditions to issue the warrant. Generally, this would only include issues of credibility and reliability of the affiant and their sources. The focus on the examination should be on the reasonableness and honesty of the affiant's belief, not the ultimate accuracy of the information.

In certain circumstances the motion can be granted on a wider basis if the accused is able to show a "reasonable basis to believe" that the affiant deliberly mislead the authorizing judge such that it would bring the ITO's credibility into issue.

The is only a "narrow window" for cross-examination of an affiant.

Factors

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.

Scope

It is not permissible to seek cross-examination on issues relevant to s. 24(2) remedy where it does not also go to the validity of the warrant.

Denial of Request

Where the court denies leave to cross-examine the affiant, the defence may still call other amplification evidence to attack reliability.

Wiretaps

The test applied to affiants of a wiretap is not a stringent one.

See Also: R v Pham, 2009 CanLII 60792 (ONSC), per Hill J for a comprehensive review by Justice Hill.

Amplification Evidence

When a judge reviews a warrant, the judge can take into account the "record...as amplified on the review." 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.” The judge may consider as amplification, any evidence "relevant to the accuracy of and motivation for the material included in the Information to obtain a search warrant."

Limited Use

Amplification is permitted to correct "some minor, technical errors" committed in good faith. This 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."

The availability of amplification evidence on anything beyond errors is not permitted.

Non-deliberate Errors or Omissions

Amplification evidence will generally be permitted where the warrant is valid and adequate on it's face in order to "explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained and subject, of course, to the requirement that unconstitutionally obtained evidence cannot be considered."

Correct Drafting Errors

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."

It can be permitted to amplify an innocent mis-statement or mis-characterization within the ITO.

It is not permitted that the correction allows "form above substance".

Examples of "minor" or "technical" errors include attribution to the wrong observer, mistaken dates, typographical errors, erroneous but unimportant errors in descriptions of the source of information. Unacceptable errors include failure to identify the target of investigation, failure to detail expertise of a police officer, or failure to provide evidence showing origin and reliability of a document in dispute.

Raise Issue of Fraud

Evidence that would tend to show the ITO contained fraudulent or misleading information may result in that information being excised from the ITO. Such evidence would also permit a judge to conclude that "police approach to the prior authorization process was so subversive of it that the warrant should be invalidated.."

Not Retroactive or Outside Knowledge of Affiant

Anything that was not known to the officer at the time of the swearing of the ITO cannot be used in amplification.

Evidence obtained after the execution of the warrant cannot be admitted as amplification evidence.

Evidence

It appears that amplification evidence can take the form of transcripts from preliminary inquiries, police notes and reports.

Procedure

Should an affiant testify in the course of a Garofoli application, the Crown cannot, without agreement of the court, elicit amplification evidence.

Discretion to Strike Otherwise Valid Warrant

Even where a warrant passes Araujo standard, it has been suggested that the reviewing court maintains "residual discretion" to declare it invalid on the basis that it is necessary to "protect the integrity of the process." Appropriate circumstances to invalidate a warrant using residual discretion would include cases where the affiant has deliberateyl given false material statesments or omitted material facts.

Effect of an Invalid Warrant

Once a warrant is quashed, the reviewing court has the power to order the items seized to be returned. This power is incidental to the power to quash a 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.

See Also

• Information to Obtain a Search Warrant