Procedure for Review of a Judicial Authorization

General Principles

When an accused person seeks to challenge an ITO supporting a warrant by cross-examination of the informant the procedure should go as follows:

1. The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted;
2. 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;
3. Cross-examination should proceed to the extent permitted by the order granting leave;
4. Re-examination, if any, should follow the cross-examination; and
5. The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant.

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 hearing, sometimes called 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.

A hearing to challenge a warrant is often referred to as a "Garofoli hearing."

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.