Garafoli, Warrants and A Successful Defense by Chris Enns

CANADA
PROVINCE OF NOVA SCOTIA

HALIFAX REGIONAL MUNICIPALITY
IN THE PROVINCIAL COURT OF NOVA SCOTIA
BETWEEN:
HER MAJESTY THE QUEEN

Respondent
- and -
CHRISTOPHER I. ENNS
and
3247317 NOVA SCOTIA LTD

Applicants
CROWN BRIEF RE: GAROFOLI APPLICATION

[Leave to cross affiant and sufficiency of ITO (offence date August 1, 2019)]
Leonard MacKay Christopher Enns

Public Prosecution Service of Canada 764 East Chezzetcook Road
10th Floor, 5251 Duke Street East Chezzetcook, NS
Halifax, NS B3J 1P3 B0J 1N0
Tel: 902-426-0965 Tel: 902-266-4769

Fax: 902-426-1351 Fax:
leonard.mackay@ppsc-sppc.gc.ca thegrowopshop@gmail.com
Counsel for Her Majesty the Queen

FACTS
1. On July 31, 2019, the HRP-RCMP Integrated Drug Section obtained search warrants under the
Cannabis Act to search two business premises known as Farm Assists, located at 5106 Hwy 7,
Porter’s Lake, NS and 2320 Gottingen St, Halifax, NS. The two locations were searched the
next day, August 1, 2019. Cst. Mathieu Godbout was the affiant for the one Information to
Obtain the two search warrants.
2. The following items were seized from the two sites combined:
• 50 lbs of cannabis marihuana

• 589 g of cannabis resin (hash)
• 1361 packages of cannabis resin (shatter)
• 1695 cannabis edibles
• 881 various cannabis resin products
• 194 cannabis oil vape refills
• 156 syringes of cannabis oil
• 51 jars of CBD isolate
• $43,788 cash
3. The applicant is challenging the sufficiency of the affidavit supporting the search warrants (the
ITO) and is seeking to cross-examine the affiant and sub-affiants.
4. The Crown argues that the ITO provides sufficient grounds for the search warrants and is
opposed to the cross-examination of the affiants and sub-affiants.
ISSUES
5. Should this Court grant the motion for cross-examination of the affiant and or sub-affiants?
6. Does the ITO provide sufficient grounds for the two search warrants?
7. If the grounds are insufficient, should the evidence seized be excluded?

LAW
Leave to cross-examine affiant
8. The applicant is not entitled as of right to cross-examine the affiant in furtherance of his
Charter motion to exclude the results of the warrant. This was made clear in the definitive
judgment of the Supreme Court in R. v. Pires; R. v. Lising 2005 SCC 6. In that case, the
appellants sought to overturn the existing rule in R v Garofoli, [1990] 2 SCR 1421, that before
an accused can cross-examine the affiant to an affidavit supporting a wiretap authorization, the
accused must apply for and be granted leave to cross-examine. In Pires; Lising the accused
argued that the requirement for leave was inconsistent with more modern notions of the right
to make full answer and defence, on several grounds. The Supreme Court, in a unanimous
judgment authored by Charron J., reaffirmed the Garofoli rule as to leave, finding that the rule
was compliant with Charter values and that it struck the appropriate balance.
9. The most efficient way to state the Pires; Lising position on leave is to simply quote from the
judgment of Charron J., where she discusses the practical application of the rule:
Application of the Garofoli Standard
39 Alternatively, the appellants submit that the Garofoli standard has generally
been interpreted too restrictively, applied inconsistently, and that it should be clarified. In
particular, they submit that the courts below erred in the application of the threshold test in
this case. Before I discuss how the test was applied in the courts below, it may be useful
to comment on its general application by trial judges and on the appropriate standard of
appellate review.
The Threshold Test Is Not an Onerous One
40 As discussed earlier, the Garofoli leave requirement is simply a means of

weeding out unnecessary proceedings on the basis that they are unlikely to assist in the
determination of the relevant issues. The reason that the test will generally leave just a
narrow window for cross-examination is not because the test is onerous — it is because
there is just a narrow basis upon which an authorization can be set aside. Hence, in
determining whether cross-examination should be permitted, counsel and the reviewing
judge must remain strictly focussed on the question to be determined on a Garofoli review
— whether there is a basis upon which the authorizing judge could grant the order. If the
proposed cross-examination is not likely to assist in the determination of this question, it
should not be permitted. However, if the proposed cross-examination falls within the
narrow confines of this review, it is not necessary for the defence to go further and
demonstrate that cross-examination will be successful in discrediting one or more of the
statutory preconditions for the authorization. Such a strict standard was rejected in
Garofoli. A reasonable likelihood that it will assist the court to determine a material issue
is all that must be shown.
41 In some cases, the proposed cross-examination may be directed at the

credibility or reliability of an informant. However, cross-examination that can do no more
than show that some of the information relied upon by the affiant is false is not likely to be
useful unless it can also support the inference that the affiant knew or ought to have known
that it was false. We must not lose sight of the fact that the wiretap authorization is an
investigatory tool. At that stage, a reasonable belief in the existence of the requisite
statutory grounds will suffice for the granting of an authorization. Upon further
investigation, the grounds relied upon in support of the authorization may prove to be
false. That fact does not retroactively invalidate what was an otherwise valid authorization.
42 The fact situation in Garofoli itself provides a good example of a situation

where the proposed cross-examination was directed not only at the lack of credibility of
the informant but at the affiant’s likely awareness of that fact. The informant alleged that
he had been approached by Garofoli and another individual in Hamilton with an offer to
supply him with two kilograms of cocaine. In his affidavit, Garofoli stated that he lived in
Florida at the relevant time. He further stated that the officer in charge of the case was well
aware that he was living in Florida and that he only travelled back to Hamilton in
connection with his court appearances. Furthermore, information from the informant
person was critical to establishing the requisite reasonable grounds. Sopinka J., for the
majority, found that the appellant had shown a basis for the cross-examination:
In my opinion, the appellant has shown a basis for the cross-examination here. In
view of the degree of reliance by the police on the informant in this case, if the
informant is discredited then the factual basis for the authorization is undermined. If
it is shown that the informant lied, then it could raise the inference that the police knew
or ought to have known that he lied. If the police were not warranted in their belief
that the information was true, then the basis for belief that a crime was to be committed
disappears. Accordingly, the appellant should have been permitted to
cross-examine. Cross-examination having been denied, there must be a new trial. [p.
1466]
43 In other circumstances, it is the affiant’s own credibility that becomes material

to establish the statutory preconditions. For example, in R. v. Lachance, [1990] 2 S.C.R.
1490, the proposed cross-examination related to the statutory pre-condition of investigative
necessity. (The requirement of showing that other investigative measures have been tried
and have failed or that they are unlikely to succeed is not a statutory precondition for
granting a consent wiretap authorization.) The basis for cross-examination was established
on a showing that the affidavit filed in support of the authorization failed to disclose that a
key informer was working as an undercover police agent.
44 The insufficiency of the affidavit, on its face, may suffice to show a basis for
cross-examination. In R. v. Williams (2003), 181 C.C.C. (3d) 414, the statements in the
affidavit concerning the utility of undercover operations were conclusory only and
arguably understated the progress of the investigation. When considered in the context of
the strict statutory requirement of showing investigative necessity, the Court of Appeal for
Ontario held that the trial judge had erred in refusing leave to cross-examine the affiant:
In short, the appellant showed a basis for the view that the cross-examination
would elicit testimony tending to discredit the existence of one of the pre-conditions
to the authorization, namely the investigative necessity requirement. Investigative
necessity is a stringent requirement, requiring demonstration that there is, “practically
speaking, no other reasonable alternative method of investigation, in the
circumstances of the particular criminal inquiry” (emphasis in original): R. v. Araujo
(2000), 149 C.C.C. (3d) 449 (S.C.C.), at para. 29. There was a basis for believing that
this exacting standard had not been met. The same might be said here of the use of
the undercover officers and police agents. [para. 14]
4.2 The Scope of the Cross-Examination When Leave Is Granted
45 As stated in Garofoli, when leave to cross-examine is granted, “the cross-

examination should be limited by the trial judge to questions that are directed to establish
that there was no basis upon which the authorization could have been granted” (p. 1465). In
this way, the inquiry can remain focussed on the material issues. For example, in R. v.
Silvini (1997), 96 O.A.C. 310, the defence argued that once the trial judge granted leave to
cross-examine, the only limit on cross-examination should be to curb prolixity and that the
trial judge erred in restricting in advance the areas in which defence counsel could cross-
examine the affiant. The Court of Appeal for Ontario disagreed and, in referring to the
relevant excerpt in Garofoli, stated at para. 9, as follows:
In our view, this passage . . . gives the judge the discretion to direct the scope of the
cross-examination in advance if the judge considers it advisable to do so. No doubt,
if the judge found during the cross-examination that the limits were restricting the
ability of the accused to demonstrate the grounds upon which the authorization was
attacked, the judge would be required to reconsider those limits. Alternatively, the
judge could make rulings as the cross-examination proceeds. However, unless it can
be shown that this discretion was not exercised judicially, this court cannot interfere.
In my view, this is a sound approach.
10. Simply put, leave to cross-examine should only be granted if the applicant can articulate how
the proposed cross-examination will assist this Court in determining whether the justice who
issued the impugned search warrant could have issued the warrant (which is of course the
Garofoli standard of review).
11. The Crown submits that the applicant has failed to raise any issues arising out of the ITO that
could possibly undermine the grounds. He has not pointed to anything in the ITO that is
ambiguous, mistaken or deliberately misleading. The applicant’s submissions are largely in
the nature of the argument he could make on the Garofoli application itself. The deficiencies
he is suggesting fall within the four corners of the ITO and the Crown is stuck with these. The
test for leave to cross has not been met. The applicant has not articulated a basis for granting
leave, and at this point in time the respondent opposes leave.
Section 8 Charter - The search warrants were properly issued: there was sufficient credible and
reliable evidence to permit an issuing justice to authorize the warrants.
Charter, s. 8: Everyone has the right to be secure against unreasonable search or seizure
Preliminary issues: burdens, standards and cross-examination of the affiant
12. The search warrant was issued for two storefront businesses run by the applicant. The Crown
agrees that the applicant has standing to bring this application.
13. The review of a warrant “begins from a premise of presumed validity.” (R v Sadikov, 2014
ONCA 72, at para. 83) The onus is on the accused to demonstrate that the ITO in support of
the warrant was insufficient. (R v Campbell, 2011 SCC 32, at para. 14).
Sufficiency of the ITO
14. A search warrant authorized under section 87 of the Cannabis Act must conform to section 8
of the Charter. The settled law is that for a search to be reasonable under section 8 of the
Charter, it must be: (1) authorized by law; (2) the law must be reasonable; and (3) the manner
of the search must be reasonable. (R v Collins, [1987] 1 S.C.R. 265)
15. Our Court of Appeal recently confirmed the proper test to be applied in the context of Garofoli
challenges in R v Wallace, 2016 NSCA 79:
[25] The parties voice no disagreement about the test. That is understandable. The
essential features have been settled since the landmark decision of the Ontario
Court of Appeal in Re Church of Scientology and The Queen (6) (1987), 1987
CanLII 122 (ON CA), 31 C.C.C. (3d) 449 (Ont. C.A.): the reviewing judge or
court does not determine whether the justice of the peace should have been satisfied
on the evidence presented to him, but rather could he have been satisfied on the
evidence set out in the ITO that there were reasonable and probable grounds for
believing that the articles sought would be of assistance in establishing the
commission of an offence and would be found in the premises sought to be searched
(see: Re Carroll and Barker and The Queen (1989), 1989 CanLII 206 (NS CA), 88
N.S.R. (2d) 165 (N.S.S.C.A.D.)).
[26] This test has been reiterated numerous times and in all contexts of challenges
to warrant based state intrusions into citizens’ private lives despite variation in
procedure (the more common challenge at trial as opposed to an application for
certiorari), and the introduction of the more streamlined statutory language of
“reasonable grounds” (see: Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1
S.C.R. 416 at paras. 43-44). It is the norm for challenges to wiretap
authorizations as well as for search warrants under different statutes (see: R. v.
Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, para. 56; R. v. Grant,
1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223; R. v. Wiley, 1993 CanLII 69 (SCC),
[1993] 3 S.C.R. 263; R. v. Morris, 1998 NSCA 229; R. v. Araujo, 2000 SCC
65 (CanLII) at paras. 52-53; R. v. Shiers, 2003 NSCA 138 (CanLII); R. v.
Durling, 2006 NSCA 124 (CanLII); R. v. Morelli, 2010 SCC 8 (CanLII)).
[27] A succinct and helpful statement of the test a reviewing judge is to apply was
penned by Fichaud J.A. in R. v. Shiers, supra.:
[15] Based on these principles, the reviewing judge should have

applied the following test. Could the issuing judge, on the material
before her, have properly issued the warrant? Specifically, was there
material in the Information from which the issuing judge, drawing
reasonable inferences, could have concluded that there were
reasonable grounds to believe that a controlled substance, something
in which it was contained or concealed, offence-related property or
any thing that would afford evidence of an offence under the CDSA
was in Mr. Shiers’ apartment?
16. As stated in R v Araujo, 2000 SCC 65, at para. 51, “the question is simply whether there was
at least some evidence that might reasonably be believed on the basis of which the authorization
could have issued.” (emphasis added) (see also: R v Garofoli, supra, at p. 1452)
17. The standard of review is a highly deferential one. It does not involve a de novo hearing of the
warrant application and a reviewing judge is not to substitute his or her opinion for that of the
authorizing judge. The question is “not whether the reviewing court would itself have issued
the warrant”, but whether there was any basis upon which the authorizing justice could have
done so. (Campbell, supra, at para. 14) Unless the reviewing judge determines there was “no
basis” for the issuance of the warrant, “he or she should not interfere.” (Garofoli, supra, at pp.
1452, 1454)
18. The proper application of this standard of review requires consideration of “the whole of the
material presented”, in other words, the “totality of the circumstances”. (Garofoli, supra, at p.
1454; R v Liberatore, 2014 NSCA 109, at para. 27) Rather than limiting the analysis to isolated
passages or paragraphs, the content of an ITO must be considered in its entirety.
19. In Liberatore, supra, (at para. 27) the Nova Scotia Court of Appeal noted that the ITO “isn’t
anatomized for a segregated analysis of each fragment.” The issue is not whether there may be
innocent or alternative explanations for each of the grounds, but whether the grounds
considered as a whole coalesced into the requisite reasonable grounds.
Reasonable Grounds Standard
20. In determining the sufficiency of grounds for a search warrant, the reasonable ground standard
applies. In Hunter v Southam Inc., [1984] 2 S.C.R. 145 at para. 43, the Supreme Court of
Canada set the standard “at the point where credibly-based probability replaces suspicion”. As
noted by Wilson J. in R v Debot, [1989] 2 SCR 1140 (at p. 1166), “The appropriate standard
is one of “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima
facie case”. The phrase “reasonable belief” also approximates the requisite standard”.
21. In R v Sanchez (1994), 93 CCC (3d) 357 (Ont. C.A.), at page 367, Justice Hill reiterated that
the standard was one of credibly-based probability and was not to be equated with proof
beyond a reasonable doubt or a prima facie case. Providing further content, Justice Hill stated
that the “appropriate standard of reasonable or credibly-based probability envisions a practical,
non-technical and common-sense probability as to the existence of the facts and inferences
asserted.” In R v Jir, 2010 BCCA 497, the British Columbia Court of Appeal put it this way
(at paras. 27-28):
[27] As has been stated many times, the “reasonable grounds” standard is
not only less than that required for conviction, but is also less than the civil
standard of proof. Madam Justice Wilson put it this way in R. v. Debot,
1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at 1166:
The question as to what standard of proof must be met in order to

establish reasonable grounds for a search may be disposed of
quickly. I agree with Martin J.A. that the appropriate standard is
one of “reasonable probability” rather than “proof beyond a
reasonable doubt” or “prima facie case”. The phrase “reasonable
belief” also approximates the requisite standard.
More recently, in Mugesera v. Canada (Minister of Citizenship &

Immigration), 2005 SCC 40 (CanLII), [2005] 2 S.C.R. 100, the Court stated
(at para. 114):
… the “reasonable grounds to believe” standard requires something

more than mere suspicion, but less than the standard applicable in
civil matters of proof on the balance of probabilities [citations
omitted].
Further, as Mr. Justice Hill noted in R. v. Sanchez (1994), 1994 CanLII 5271
(ON SC), 93 C.C.C. (3d) 357 at 367 (Ont. Ct. (G.D)):
The appropriate standard of reasonable or credibly based probability

envisions a practical, non-technical and common sense probability
as to the existence of the facts and inferences asserted.
[28] It is well established that a reasonable grounds determination involves

a consideration of the “totality of the circumstances”. When the police act
on the basis of an anonymous tip, consideration must be given to a variety
of factors, including the degree of detail provided by the tipster, information
as to the tipster’s source of knowledge, and indicia of the tipster’s reliability,
including confirmation of some of the information provided: Garofoli at
1457. Weakness in one area may be compensated for by strengths in other
areas: Debot at 1168. As Mr. Justice Cumming succinctly stated in R. v.
Charlton (1992), 1992 CanLII 367 (BC CA), 15 B.C.A.C. 272 at para. 29:
The inability to assess the credibility of the informant may be

compensated for by the quality of the information as well as by any
corroborating or confirmatory evidence [citations omitted].
22. With respect to the proper application of the reasonable grounds standard, the Supreme Court
of Canada set the threshold in R. v. Wiley, [1993] 3 S.C.R. 263; R. v. Grant, [1993] 3 S.C.R.
223; and R. v. Plant, [1993] 3 S.C.R. 281 – decisions delivered concurrently as they dealt with
similar issues. Wiley, Grant, and Plant have become controlling authorities in determining the
sufficiency of information for the issuance of a search warrant.
23. In each of Wiley, Grant, and Plant, the court found the grounds remaining after excising
information obtained via unlawful perimeter searches were sufficient to justify the issuance of
the respective warrants. (Wiley, supra, at pp. 274-276; Grant, supra, at p. 252) The decision in
Plant (at pp. 285-286) provides a useful guidepost for determining whether information is
sufficient to meet the reasonable grounds standard. The modest grounds remaining after results
of the unlawful perimeter search were excised were as follows:
(i) An anonymous “Crime Stoppers” tip which indicated that
marihuana was being grown in the basement of a “cute house” beside a
house with a lot of windows on 26th Street between 2 consecutive cross
avenues in Calgary;
(ii) Police confirmed the exact address of the house described in the
“Crime Stoppers” tip; and
(iii) Upon comparing the electrical consumption at this address with that
of (2) other comparable sized residences in Calgary over a (6) month period,
Police determined that the consumption at that address was 4 times the
average of the other (2) residences over the same period.
Sufficiency of Grounds for Warrant in Present Case
24. The ITO in this case, when viewed as a whole, contains sufficient credible and reliable
information such that the justice could conclude that there were reasonable and probable grounds
to believe that there was a controlled substance at the two locations. These two storefronts were
openly selling cannabis products and obviously not authorized under the Cannabis Act. The
applicant may argue that there are legitimate avenues for the distribution of medical cannabis, but
these storefronts do not fall into that category.
Section 24(2) Analysis
25. The person seeking a Charter remedy under section 24(2) bears the burden of demonstrating
on a balance of probabilities that the admission of evidence would bring the administration of
justice into disrepute.
26. The focus is on maintaining the integrity of, and public confidence in, the justice system. The
issue is to be viewed objectively: “…whether a reasonable person, informed of all the relevant
circumstances and the values underlying the Charter, would conclude that the admission of
the evidence would bring the administration of justice into disrepute?” See R v Grant, 2009
SCC 32.
27. The Court in Grant found that s. 24(2) required a flexible, multi-factored analytical approach
to the determination of the admissibility of evidence. The majority emphasized that s. 24(2)
analysis necessarily involved a consideration of “all the circumstances” and that “no
overarching rule governs how the balance is to be struck”. As a result, the Court moved away
from the “all-but-automatic exclusionary rule” for non-discoverable conscriptive evidence that
had developed in the wake of Stillman. In doing so, the Court found that the “trial fairness”
rationale developed pursuant to Collins and Stillman “should no longer hold”. Instead, the
concept of trial fairness “is better conceived as an overarching systemic goal than as a distinct
stage of s. 24(2) analysis”. Considerations such as whether the evidence was “conscripted” and
the related “discoverability doctrine”, while remaining relevant, should no longer be a
determinative criterion for the 24(2) inquiry.
28. As established by Grant, there are three factors in the section 24(2) analysis:
1. the seriousness of the Charter-infringing state conduct;
2. the impact on the accused’s Charter-protected interests; and,
3. society’s interest in the case being adjudicated on its merits.

29. Each of these factors must be “weighed in the balance” to reach the ultimate determination of
whether the administration of justice would be brought into disrepute by the admission of the
evidence.
30. The Court commented on the application of these three lines of inquiry with respect to different
categories of evidence such as statements by the accused, bodily evidence, non-bodily physical
evidence and derivative evidence. The Court considered non-bodily physical evidence at
paragraphs 112-115 of Grant, and the factors include the following:
(i) A minor breach weighs in favour of admission.
(ii) A diminished expectation of privacy, e.g. commercial premises, weighs in favour

of admission.
(iii) A search that has little or no impact on human dignity may be considered a minor
breach.
(iv) “Reliability issues with physical evidence will not generally be related to the
Charter breach. Therefore, this consideration tends to weigh in favour of
admission.”
Seriousness of the Charter-infringing State Conduct
31. The first part of the Grant inquiry requires an evaluation of the seriousness of the state conduct
that led to the Charter breach.
32. If it is found that the applicant’s rights were breached with respect to the August 1, 2019
searches, it is submitted that in all the circumstances the police conduct was near the least
serious end of the spectrum, favouring admission. Any breach was not so serious as to risk
bringing the administration of justice into disrepute.
33. There is a spectrum of the gravity of Charter-offending state conduct, with inadvertent or
minor violations at one end and wilful or reckless disregard of Charter rights at the other.
Violations at the former end of the spectrum may minimally undermine public confidence in
the rule of law, while those at the other end will inevitably have a negative effect and risk
bringing the administration of justice into disrepute. See R v Grant, at para 74.
34. For the August 1, 2019 searches, the police did what would be expected and legally required
in the circumstances. They knew about the storefronts and collected information to confirm
that they continued to operate. They prepared an ITO and proceeded to obtain judicial
authorization from a justice who independently reviewed the materials. The searches were
conducted pursuant to a presumptively valid warrant, obtained and executed in good faith.
They were neither reckless nor demonstrated a disregard for Charter rights. There is no
evidence that the search was conducted in an unreasonable manner.
35. It is respectfully submitted that a reasonable person objectively viewing this situation would
not find that this was the type of police action from which a court should distance itself. The
seriousness of any Charter-infringing state conduct is towards the more minor end of the scale.
Accordingly, this branch of the test favours admission of the evidence.
Impact of the Breach on the Charter-Protected Interests
36. The second part of the Grant inquiry focuses on the seriousness of the impact on the Charter-
protected interests of the accused.
37. With respect to section 8 rights in particular, an unreasonable search that intrudes on an area
in which the individual enjoys a high expectation of privacy or that demeans his or her dignity
(like an unjustified strip search or body cavity search) is more serious than one that does not.
A dwelling house attracts a higher expectation of privacy than an automobile, so an illegal
search of a house will be seen as more serious at this stage of analysis. See Grant, at paras 78,
113 – 114.
38. As Brown, J. for the majority of the SCC in R v Paterson, 2017 SCC 15, explained:
[49] Where, therefore, the Charter-protected interest in privacy is at stake (as it is
here), infringements arising from circumstances denoting a “high expectation of
privacy” tend to favour exclusion of evidence, while — all other considerations
being equal — infringements of lesser interests in privacy will not pull as strongly
towards exclusion. As the Court said in Grant 2009 (at para. 78): “An unreasonable
search that intrudes on an area in which the individual reasonably enjoys a high
expectation of privacy, or that demeans his or her dignity, is more serious than one
that does not.”
39. The searches of these commercial premises were not an affront to the applicant’s dignity, nor
were they executed in an unreasonable or abusive manner. Most importantly, however, the
drugs were not discovered with any assistance from the applicant. The impact on any Charter-
protected right was minimal.
40. The evidence that was seized was non-conscriptive and the seizure was non-intrusive; thus its
admission would not render the trial unfair.
41. The fact that these searches involved the searches of business locations as opposed to a
residential is significant. The applicant’s reasonable expectation of privacy in these
commercial premises was low; certainly not the degree of privacy associated with a residence.
The searches occurred during business operating hours when members of the public could
come and go.
42. The impact of any breach on the applicant’s rights was minimal.
Society’s Interest in Adjudication on the Merits
43. The last part of the Grant inquiry asks whether the truth-seeking process of the criminal trial
would be better served by admission of the evidence, or by its exclusion. The reliability of the
evidence is an important factor in this line of the inquiry.
44. The commercial trafficking of cannabis has been and remains a serious offence in Canadian
law. As the applicant correctly points out the law in relation to the possession of cannabis was
recently changed and it is no longer illegal to possess some cannabis for one’s personal use.
However, their argument that this diminishes the public interest in having cases of this nature
adjudicated is incorrect. This is not a case about personal use or a small amount of cannabis.
In fact, the illegal commercial exploitation of the cannabis market prior to
legalization/decriminalization is egregious and continues to be criminal, with punishment on
indictment of imprisonment for a term of not more than 14 years. See section 9 of the Cannabis
Act, SC 2018, c 16.
45. A similar argument about the seriousness of the offence was advanced by the accused in R v
Strong, 2019 ONCA 15. In dismissing the appeal, the Court of Appeal explained:
[2] The appellant’s main argument rests on the assertion that that the changed
societal attitude toward marijuana use warrants a reduction in the established range
for this kind of offence. We cannot accept this submission.
[3] While the societal perception of the seriousness or harmfulness of the offender’s
conduct has a role to play in considering factors such as denunciation and
deterrence, we see no basis to conclude that the conduct involved in this case would
be viewed as anything other than serious criminal misconduct.
[4] Parliament has not significantly altered the applicable penalty. Nor, in our view,
can one assume that a large scale, prolonged trafficking for profit in marijuana is
somehow viewed as less serious because of the legislative changes in respect of
personal possession and use. The sentence was within the established range. We
would dismiss the appeal.
46. The drugs that were seized are real, non-bodily physical, highly reliable evidence and essential
to the Crown’s case. The suppression of reliable and essential evidence is contrary to society’s
interest in seeking the truth and having a serious charge adjudicated on the merits. This factor
favours admission of the evidence.
47. Any Charter breach that occurred in this case is minor and the exclusion of the evidence would
affect society’s confidence in the justice system. The truth seeking interest of the criminal trial
process mandates admission of the evidence in this case.
CONCLUSION
48. The ITO contains sufficient grounds to support the two search warrants. If the Court finds
otherwise, the Grant test weighs in favour of admission of the evidence. The applicant’s
motion should be dismissed.
All of which is respectfully submitted,
Leonard MacKay
Crown Counsel
LIST OF AUTHORITIES
1. Hunter v Southam Inc., [1984] 2 S.C.R. 145

2. R v Araujo, 2000 SCC 65
3. R v Campbell, 2011 SCC 32
4. R v Collins, [1987] 1 S.C.R. 265
5. R v Debot, [1989] 2 SCR 1140
6. R v Garofoli, [1990] 2 SCR 1421
7. R. v. Grant, [1993] 3 S.C.R. 223
8. R v Grant, 2009 SCC 32
9. R v Jir, 2010 BCCA 497
10. R v Liberatore, 2014 NSCA 109
11. R v Paterson, 2017 SCC 15
12. R v Pires; R v Lising, 2005 SCC 66
13. R. v. Plant, [1993] 3 S.C.R. 281
14. R v Sadikov, 2014 ONCA 72
15. R v Sanchez (1994), 93 CCC (3d) 357 (Ont. C.A.)
16. R v Strong, 2019 ONCA 15
17. R v Wallace, 2016 NSCA 79
18. R. v. Wiley, [1993] 3 S.C.R. 263
B E T W E E N:

Respondent
-and-
CHRISTOPHER ENNS
Applicant
APPLICANTS’ FACTUM RE: GAROFOLI APPLICATION & APPLICATION

TO CROSS-EXAMINE AFFIANT AND SUB-AFFIANTS
Leonard MacKay Christopher Enns

Public Prosecution Service of Canada
10th Floor, 5251 Duke Street 764 East Chezzetcook Road
Halifax, NS B3J 1P3 East Chezzetcook, NS B0J 1N0
Tel: 902-426-0965 Tel: (902)266-4769

Fax: 902-426-1351
leonard.mackay@ppsc-sppc.gc.ca thegrowopshop@gmail.com
Counsel for Her Majesty the Queen Applicant

PROVINCIAL COURT OF JUSTICE NOVA SCOTIA
B E T W E E N:

Respondent
-and-
CHRISTOPHER ENNS
Applicant
APPLICANTS’ FACTUM RE: GAROFOLI APPLICATION & APPLICATION

TO CROSS-EXAMINE AFFIANT AND SUB-AFFIANTS
PART 1: STATEMENT OF THE CASE
1. On August 1, 2020, a police raid resulted in charges against the Accused

Christopher Enns and 3247317 Nova Scotia Ltd.
2. The Applicants are alleged to have had knowledge and control over items
seized at the storefronts. The Applicants were charged contrary to sections 9
and 10 of the Cannabis Act and proceeds of crime pursuant to s.354(1)(a) of the
Criminal Code of Canada (the Code).
3. The above charges arise out of search warrants executed on August 1, 2019.
The police allege to have located and seized cannabis products and some
Canadian currency. It is submitted the search warrant involved very brief
observations of the exterior of the storefronts and did not involve undercover
3
purchases or sufficient surveillance to justify the issuance of these search
warrants.
PART 2: SUMMARY OF THE FACTS
4. The affiant and sub-affiants on the Information to Obtain a Search Warrant

(ITO) are Cst. Mathieu Godbout, and Cst. Brad Jardine and Cst. Greg
Stevens.
5. The affiant, Mathieu Godbout, states that on or about April 2019 he was
tasked with investigating an illegal dispensary “The Farm Assist” located at
5106 Hwy 7, Porters Lake, NS. There is no indication of who tasked the
affiant and how that person is aware of this business being an “illegal
dispensary.” The investigation starts from a position of pure speculation.
6. The affiant states the only legal way for medically licensed patients to obtain
cannabis in Nova Scotia at the time of his affidavit was by ordering it
through mail from a Licensed Producer or purchasing it at the NSLC. In
fact, this statement was not true. Medically licensed patients can further
designate someone to grow their medicine for them and can pay them for that
service and product. The patient can meet the designated grower to acquire
the medicine or have it delivered to them. Further, a medically licensed
patient can choose to grow their own medicine and is entitled to trade the
cannabis they produce with other patients since legalization in 2018.
7. At some time between April 4 and July 23, 2019, the affiant did a Versadex
check on 5106 Hwy 7, Porters Lake which returned 6 business names and 70
entries. The affiant omitted to mention whether any of the 70 entries had
criminal convictions associated with them or whether any of the business
names had criminal convictions associated with them. In fact, none of the
4
businesses or their owners had criminal convictions and such ought to have
been disclosed in the ito.
8. At some time between April 4 and July 23, 2019, the affiant did a Versadex
check on “The Farm Assists Cannabis Resource Centre” and discovered the
address 2320 Gottingen St. The affiant notes that 7 business names and 242
entries were associated with the entity being searched. It is not clear from
the statement whether the entity he is referring to is “The Farm Assists
Cannabis Resource Centre” or the address itself, 2320 Gottingen St., Halifax.
The affiant omits whether either any of the business names or the address
itself has criminal convictions attached to them. He omits to mention that
over half of the business names listed are restaurants and convenience stores
that have no connection to cannabis. In fact, the businesses did not have
criminal convictions and such ought to have been disclosed in the ito.
9. The affiant omits to mention that a warrantless search by four police officers
was conducted at 5106 Hwy #7 Porters Lake in June 2019 under the Nova
Scotia Cannabis Control Act. It is not known from the affidavit whether he
was aware of the search and that nothing was seized or whether the officer
who tasked him with performing the investigation or the sub-affiants who
conducted brief surveillance were aware of the warrantless search.
10. The affiant omits to mention whether any additional investigation, even if it
produced exculpatory evidence, was completed between April 4 and July 23,
2019.
11. The affiant notes that on July 23, 2019 he reviewed a listing on a website
wwww.weedmaps.com for “The Farm Assists”. He states that Weedmaps is a
source of information as to what dispensaries continue to operate in HRM. He
indicates that the listing provided the address 2320 Gottingen St., Halifax,
hours of operation, and a menu with sub categories and product pictures. He
5
omits:
• if there was any indication as to when the menu was last updated or
whether there was storefront still in operation.
• if he checked the menu on different days to determine whether it

changed.
• if The Farm Assists listing was under a subcategory for storefronts or

delivery services.
• if there was a telephone number or email address on the listing and

whether he attempted to contact anyone through the listing to
determine whether the store was open and whether cannabis could be
obtained onsite at the listed address.
• if he contacted Weedmaps to determine who was in control of the

listing or what their policy was with respect to making sure listings
were accurate and up to date.
• the information that anyone can publish a WeedMaps listing.
• that some of the listings on Weedmaps are for clinics and storefronts
that have already closed.
12. The affiant states that he did online searches for “The Farm Assists Porters
Lake” and found a listing for The Farm Assists Porters Lake on
yellowpages.ca that had 5106 Hwy 7, Porters Lake as the address and
(902)266-4769 as the phone number. He omits whether he searched
yellowpages.ca for listings for the other 4 business that Vesadex listed for
this address (#7 Pickers, Porters Lake Smoke Shop, Grow-Op Shop, Radical
420). He omits whether he called the phone number to see if it was still in
service and whether cannabis could be obtained at the address. He omits
6
how yellowpages listings are made and updated and who has the power to
make and update them or whether he did any investigation in that respect.
Lake” and found a listing for Grow-Op Shop Indoor Gardening on
www.mapquest.com that had 5106 Hwy #7, Porters Lake as the address and
(902)281-0420 as the phone number. He omits whether he searched on
mapquest.com itself The Farm Assists Porters Lake or whether he searched
it for the other business names associated through Versadex. He omits
whether he called the number listed to see if it was still active and whether
cannabis was available at that address. He omits how mapquest listings are
made and updated and who has the power to make and update them. Had he
done so, he would have discovered the phone number was inactive and no
business by that name existed at 5106 Hwy #7. Had he contacted Mapquest,
he would have known the listing was automatically generated and had not
been updated for years.
Lake” and found a listing for “Porters Lake Smoke Shop” on
www.canpages.com with an address of 5106 Hwy #7, Chezzetcook and a
phone number of (902)281-3334. He omits whether he searched canpages for
the other business names associated with this address through Versadex. He
omits whether he called the number on the listing to determine whether it
was still active and whether cannabis could be obtained at the address. He
omits how canpages listings are made and updated and who has the power to
make and update them. Most notably, the affiant omits the fact that this
business has no association with the affiant. Accordingly, this information is
irrelevant and inflammatory.
7
Lake” and found a listing for “The Farm Assists Medical Resource Centre
Porters Lake” on facebook.com. He states the listing had hours of operation,
the address 5106 Hwy #7, Porters Lake, and email address, and under an
information heading described the business as a medical cannabis resource
centre and medical vapour lounge. He omits whether the listing had a phone
number and whether he tried to call it. He omits any information on the
dates of the last posts made on the facebook profile and the contents of those
posts. He omits whether he had any awareness of who was in control of the
facebook listing. Had he done so, it would have in fact revealed that nothing
in recent posts or the about section of this page detailed anything to do with
cannabis sales or cannabis sales taking place at the impugned addresses.
16. The affiant omits whether he searched yellowpages, mapquest, canpages or

facebook or performed any corroboration for any of the business names
associated through Versadex with 2320 Gottingen St (Big Als Convenience,
Vivas Restaurant, Gottingen Food, Menz Bar) making it difficult to verify the
accuracy of the Versadex system.
17. The affiant states that online searches returned multiple hits for “The Farm
Assists” for both Halifax and Porters Lake but he only refers to three
specifically: Facebook, Instagram, and the www.thefarmassist.com He
omitted whether there was a separate Facebook listing for Farm Assists
Halifax and whether there was a phone number or any evidence associated
with that listing that would support the ITO. If there was a separate listing,
he omits whether there were any recent posts and if so, what the nature of
those posts were and whether they provide evidence that cannabis will be
found at the address or whether they are exculpatory. With respect to
Instagram, the affiant omits any details respecting whether Halifax and
Porters Lake had separate Instagram listings and what the details and posts
8
on those listings were. Once again, nothing in the recent posts or headings
and about sections on these facebook or Instagram listings indicated illegal
cannabis sales or the availability of illegal cannabis at the addresses at issue.
18. The affiant states that the website www.thefarmassists.com indicates on its
main page that “We strive to offer a wide range of dried cannabis,
concentrates, and edible products at reasonable prices to best serve each
member’s needs and treatment requirements” and that the address listed is
2320 Gottingen St, Halifax. The affiant omits whether there was phone
number or email address on the website and whether he contacted it to
determine whether cannabis could be obtained at the address listed. The
affiant omits whether the website described the business as a delivery service
or in store dispensary. The affiant omits whether he did any follow up to
establish what the website meant by members needs and treatment
requirements. The affiant omits whether he determined through the website,
contacting the business or other means whether a medical prescription was
required to access The Farm Assists. He further omits whether any inquiry
was made into whether the business was actually facilitating cannabis
distribution legally according to regulations such as by connecting licensed
patients with designated growers who had the capacity to produce cannabis
for the patient. The affiant omits whether he made any inquiries to Health
Canada as to whether 5106 Hwy 7 or 2320 Gottingen St were licensed
medical cannabis production sites or whether either of the Applicants or
anyone else were legally authorized to produce cannabis there as a
designated grower or personal producer. In fact, the Applicant Chris Enns
has a license to produce and sell cannabis to two medical cannabis users and
this exculpatory information, though the licenses are not directly connected
to the addresses, should still have been put before the issuing justice
19. The affiant states that a criminal analyst performed checks on 5106 Hwy #7,
9
Porters Lake and determined that it is owned by Diana Crimp who also owns
the residence that the Applicant Chris Enns lists as his residence on the
Registry of Joint Stocks. The fact that this information comes to the affiant
from a “criminal analyst” colours it with prejudice despite the fact that
anyone, including the affiant, could have accessed the same data from a
publicly accessible database. The affiant omits whether Diana Crimp has
any relevant charges or convictions; in fact she has none, which should have
been put before the issuing justice. The affiant omits how many properties
Diana Crimp owns in total.
20. The affiant states that a criminal analyst performed checks on 2320
Gottingen St and determined that it is own by Novakor Investments Inc. The
affiant omits who is the owner or director of Novakor Investments. The fact
that this information comes to the affiant from a “criminal analyst” colours it
with prejudice as anyone, including the affiant, could have accessed the same
data from a publicly accessible database. The affiant omits whether the
owner/director of Novakor or whether Novakor itself has any relevant
charges or convictions. The affiant omits how many properties Novakor or its
owner holds in total.
21. The affiant states that the criminal analyst informed him that the Applicant
Christopher Enns is listed as the director/president/recognized agent of 7
entities including: 3247317 Nova Scotia Ltd, The Farm Assists Cannabis
Resource Centre, 3259147 Nova Scotia Ltd, The Grow-Op Shop Indoor
Gardening & Hydroponics Supplies, The Halifax Compassionate Club, and
The Nova Scotia Medicinal Association of Cannabis Dispensaries. This
statement was misleading and factually incorrect based on the documents he
reviewed from the Registry of Joint Stocks. The Farms Assists was simply
registered as an operating as name for 3247317 NS, however, that business
name was revoked in 2016. A business name does not have a
10
director/president/recognized agent. Even if it did, the Applicant could only
be said to be a past director/president/recognized agent as at the time of the
affidavit, the name was revoked. This omitted evidence is arguably
exculpatory. The Grow-Op Shop is similarly, and operating as name for
3259147 NS and not a separate entity and does not have
director/president/recognized agent as such. The affiant omits to mention
that this business is simply a gardening supplies store with nothing to do
with cannabis that the public can attend during regular business hours. The
affiant omits that the Halifax Compassionate Club was a not for profit society
that had its registration revoked in 2013. As such, the applicant could be
stated as a past director of the society but the society no longer exists and as
such the statement was misleading. Moreover, and in any event, the affiant
fails to inform the issuing justice that the Applicants have no criminal record
and no findings of guilt.
22. The sub affiants state that on or about July 2019 they conducted surveillance
and observed 7 customers entering 2320 Gottingen St in 5 min. There is no
indication of how the officers know that it was “customers” that were entering
the business, whether they were observed exiting the business and whether
they were observed carrying anything when they left the business and if so,
what they were observed carrying. It is not known on what day or time the
observation occurred, only when the observations were reported to the
affiant. Further, there is no indication that any cannabis is being stored or
sold from the premises.
23. The affiant states that on July 29, 2019 he drove by 5106 Hwy #7 and noticed
at the road a sign for “ The Farm Assists Medical Cannabis Resource Centre”
and a sign on the building itself that said “lounge”. Two vehicles were parked
at the front of the building and one was parked at the side of the building. A
fourth vehicle pulled up to the side of building while he was conducting his
11
observation. When he made a second pass of the building, the occupant of the
fourth vehicle was no longer inside the vehicle. He did not report observing
anyone enter or exit the building. He did not report observing any drugs
inside the vehicles or stopping any of the vehicles as they left the property.
He did not report whether he queried any of the license plates of the vehicles
and whether those queries, if performed, returned any hits for persons of
interest with relevant criminal charges or convictions or for the Applicant
Christopher Enns.
24. The affiant states that he reviewed a 2017 CBC news article that claims the
Applicant is a cannabis activist and the owner of The Farm Assists Medical
Cannabis Resource Centre. He omits whether he contacted the author of the
article to determine whether the applicant stated directly that he was the
owner or whether that information came from an outside source. He omits
that the Applicant has no criminal record or findings of guilt whatsoever and
that there is nothing illegal about being a cannabis activist. The affiant
omits whether any other investigation was done to corroborate the Applicant
as owner of The Farm Assists beyond the Joint Stocks Registry listing that
was revoked in 2016 and this news article.
25. Based on the foregoing, it is respectfully submitted that there is insufficient

evidence disclosed in the ITO to justify the issuance of a search warrant. The
officer intentionally or negligently omitted critical evidence that would have
prevented the issuance of the search warrant. Similarly, the affiant included
in the ito inaccurate, irrelevant, incomplete and inflammatory details to
colour the opinion of and/or mislead the issuing justice.
12
PART 3: ISSUES AND THE LAW
A. SECTION 8 AND REASONABLE EXPECTATION OF PRIVACY

(i) The Applicants had a Reasonable Expectation of Privacy
26. The purpose of Section 8 is to protect individuals’ privacy interests. Conduct

of state agents, including police, that amounts to search and seizure will not
attract Section 8 scrutiny unless a “reasonable expectation of privacy” exists
and has been violated. Hunter v. Southam Inc., [1984] 2 S.C.R. 145
27. Whether or not a reasonable expectation of privacy exists will depend on the
totality of the circumstances. Considerations include but are not limited to:
(i) The person’s presence at the time of the search;
(ii) Possession or control of the place searched;
(iii) Ownership of the place searched;
(iv) Historical use of the property or item;
(v) Ability to regulate access, including the ability to admit or exclude

others to the place;
(vi) Existence of a subjective reasonable expectation of privacy;
(vii) Objective reasonableness of the expectation of privacy.
R v. Edwards, [1996] 1 S.C.R. 128 at para. 150-151
28. In R. v. Edwards, upon application of the factors, it was held that the accused
lacked a reasonable expectation of privacy as he was merely a visitor in his
girlfriend’s 5 apartment, and did not pay any rent or expenses. Although he
had a set of keys, he had no authority to regulate access to the premises. As
such, it was concluded that no personal right of the accused had been
13
infringed when police searched the apartment.
29. In the case at bar, unlike in R. v. Edwards, the Applicants are more than
mere visitors, but rather are permanent tenants. 2320 Gottingen St is owned
by Novakor Investments who leases the premise to the Applicant 3247317 NS
Ltd. The Applicant Christopher Enns signed the lease and is the President
and only director of the business. Versadex reports indicated the historical
use of the address was associated with at least 6 different business names
including a business name registered for use by the Applicant. The Applicant
Christopher Enns conducts the hiring of employees for the storefronts and
determines the policies they adhere to which included restricting who can
and cannot enter the premises to those who are 19+ and further, access
certain areas of the premises such as the lounge that are restricted those who
have an active medical cannabis authorization. Furthermore, the Applicant
Christopher Enns has his own set of keys, and would frequently be at the
store himself but was not there on August 1, 2019 as he had been
hospitalized due to an injury.
30. The lack of ownership, and absence of an exclusive right of access, does not in
itself prevent the application of CRF Section 8, as such aspects merely
indicate that the person doesn’t have the highest form of privacy.
R v. Buhay, (2003), 174 C.C.C.(3d) 97 (S.C.C.).
31. If the entire premises at 2320 Gottingen St and 5106 Hwy #7 had been open
to the public with no restrictions on who among the public was invited to
occupy those spaces, there could be no reasonable expectation of privacy. R.
v. Fitt (1995), 1995 NSCA 47 (CanLII), 96 C.C.C. (3d) 341 (N.S.C.A.),
aff’d 1996 CanLII 251 (SCC), [1996] 1 S.C.R. 70, Hallett J.A. for the Court
held at 345:
14
A businss establishment that is open to the public with an implied
invitation to all members of the public to enter has no reasonable
expectation of privacy from having a police officer enter the area of the
premises to which the public is impliedly invited [citations omitted].
32. In the case at bar, access at 5106 Hwy #7 Porters Lake was restricted to
individuals who were 19+ and who had an active medical cannabis
authorization. No cannabis derivatives or indicators of cannabis sales were
viewable from the public entry point where further access was granted or
denied. Similarly, access at 2320 Gottingen St to the lounge and rear of the
store was restricted at the front counter to those who were 19+ and had an
active medical cannabis authorization. No cannabis derivatives or indicators
of cannabis sales were viewable from the public entry point where further
access was granted or denied.
33. Individuals only became aware of cannabis available at 2320 Gottingen St or

5106 Hwy #7 by first presenting a medical authorization that had been
signed by a physician. Discussions by the Applicants or their employees
with individuals respecting how cannabis derivatives could be obtained only
occurred after the individual had demonstrated and active physician-signed
medical document.
34. As such, the case at bar is unique from the fact set in R v Felger, 2014 BCCA
34, where in that case the retail storefront was open to any members of the
public and access to cannabis derivatives did not require demonstration of a
medical authorization
35. It is respectfully submitted that the Applicants had, at all material times,
both a subjective and objective reasonable expectation of privacy in the areas
of the implicated addresses where evidences of cannabis sales and
distribution was seized.
15
B. LEAVE SHOULD BE GRANTED TO CROSS-EXAMINE THE AFFIANT
AND SUB AFFIANTS
(i) Introduction
36. The issue is whether the Applicants should be granted leave to cross-examine
the affiant and sub-affiant at the Garofoli hearing.
37. The Applicant seeks to cross-examine the affiant and two sub-affiants, on the
Information sworn in July 2019, in support of the search warrant, in order to
elicit testimony tending to discredit the existence of one or more of the
statutory pre-conditions and constitutional requirements for the issuance of
the search warrant.
38. The Applicant submits that the disclosure provides a sufficient basis to expect
that the requested cross-examination will call into question the validity of the
existence of one of the preconditions for the authorization. The precondition
being the existence of reasonable and probable grounds. The proposed cross-
examination will be directed at confirming that the search warrant was
obtained improperly and in bad faith: that the evidence used was not evaluated
by an expert, was not examined at length, and occurred in the midst of critical
amendments to the underlying legislation, and may have been motivated not
by a desire for compliance with the law but rather a genuine misunderstanding
of the state of the law, and therefore any conclusions drawn from the
observations were not reliable, or even if it were reliable, the observations are
insufficient to provide reasonable and probable grounds to search a premises.
39. There was not sufficient reliable evidence that could satisfy the reasonable and
probable grounds required to obtain the warrant.
16
40. Further, the amendment to the Cannabis Act SC 2018 c.16 section 87 which
occurred on September 18, 2019, has a direct effect on the manner and form of
the warrants issued and their execution due to the elimination of section 87(4)
as well as the format and delays in issuing the Report to a Justice which did
not occur properly and without proper documentation of items seized in
contravention of s.89(2) of the Cannabis Act.
41. The Applicants submit that they have met the threshold and that cross-
examination should therefore be permitted. The cross-examination would be
directed to the issues this Honourable Court must resolve in discharging the
review function it is called upon to perform.
42. In the Applicant's respectful submission, it is instructive to review the applicable

jurisprudence at this point.
(ii) The Test for Granting Leave to Cross-Examine an Affiant:
43. In R. v. Garofoli (1990), 60 C.C.C. (3d) 161, the Supreme Court of Canada
established the test for granting leave to an Applicant to cross-examine a wiretap
affiant at trial.
44. In Garofoli, the Supreme Court of Canada specifically rejected the highly
restrictive prerequisites to cross-examination of a wiretap affiant that were
developed by the United States Supreme Court in Franks v. Delaware 438 U.S.
154 (1978). The Franks pre-conditions that were rejected by the Garofoli Court
were as follows: 1
• specific allegations of deliberate falsehood or reckless disregard for the
truth in respect of specific aspects of the affidavit;
1 See Franks, supra at page 438 U.S. 171 under heading "IV"
17
• prima facie proof by the applicant in admissible form of the substance of
what is alleged to controvert the specific contents of the affidavit; and,
• a demonstration by the applicant that the remainder of the affidavit would

have been insufficient to sustain the issuance of the wiretap authorization,
once the offensive portions were set aside.
45. Instead, our Supreme Court adopted a much less onerous test for leave to be
granted. Speaking for the majority, Mr. Justice Sopinka held at pp.197-98:
Leave must be obtained to cross-examine. The granting of leave

must be left to the exercise of the discretion of the trial judge.
Leave should be granted when the trial judge is satisfied that
cross-examination is necessary to enable the accused to make full
answer and defence. A basis must be shown by the accused for
the view that the cross-examination will elicit testimony tending
to discredit the existence of one of the pre-conditions to the
authorization, as for example the existence of reasonable and
probable grounds.” [emphasis added]
46. However, Justice Sopinka went on to note that in establishing “a basis” for
cross-examination of the affiant, an applicant for leave to cross-examine is not
required to make out a prima facie case of fraud, misleading disclosure or
material non-disclosure in the affidavit. His Lordship wrote at p.188:
In this process, the existence of fraud, non-disclosure, misleading

evidence and new evidence are all relevant, but, rather than being
a prerequisite to review, their sole impact is to determine whether
there continues to be any basis for the decision of the authorizing
judge. [emphasis added]
47. The Ontario Court of Appeal has more recently affirmed the Garofoli Court's
approach and cautioned judges against applying too high a standard on the
18
issue of leave to cross-examine. In R. v. Williams, [2003] O.J. No. 5122 at
paragraph 11, Rosenberg J.A. speaking for the Ontario Court of Appeal
observed: “the test for permitting cross-examination of an affiant whose
affidavit has been used to obtain a wiretap authorization is not a stringent one.”
Rosenberg J.A. held that the applicants had made out a case for cross-
examination at trial based on conclusory statements in the affidavit that
arguably understated the progress of the investigation. 2 Clearly the
jurisprudence on wire tap cases applies to search warrants more generally.
48. Most recently, the Supreme Court of Canada upheld the Garofoli standard in R.
v. Pires and Lising, [2005] S.C.J. No. 67 (S.C.C.). In Pires, Charron J., speaking
for a unanimous Court wrote at paragraphs 9 and 10 of her judgment:
¶ 9 …. In Garofoli, as in this case, the defence argued that an

accused on a review hearing was entitled, as of right, to cross-
examine the affiant who filed in support of a judicial
authorization. The Crown, on the other hand, relying on the
leading authority of Franks v. Delaware, 438 U.S. 154 (1978), at
p. 155, contended that an accused must first make "a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit". This Court
resolved the issue by adopting a middle ground between the two
competing positions advanced by the parties.
¶ 10 A majority of the Court rejected the restrictive American

approach…. The defence position was also rejected…. With
respect to the affiant, the Court recognized the need to
circumscribe the cross-examination within reasonable limits.
First, there would need to be a threshold showing of a basis for
embarking on an enquiry and second, when permitted, the cross-
examination should be confined to questions directed to the issue
for consideration by the court. [emphasis added]
2In R. v. Pires and Lising, infra, at paragraph 44 of her judgment, Madam Justice Charron cited
Williams with approval on this point.
19
49. Later on in her judgment, Charron J. wrote at paragraph 40:
4.1 The Threshold Test Is not an Onerous One
¶ 40 As discussed earlier, the Garofoli leave requirement is

simply a means of weeding out unnecessary proceedings on the
basis that they are unlikely to assist in the determination of the
relevant issues. The reason that the test will generally leave just
a narrow window for cross-examination is not because the test is
onerous - it is because there is just a narrow basis upon which
an authorization can be set aside. Hence, in determining
whether cross-examination should be permitted, counsel and the
reviewing judge must remain strictly focussed on the question to
be determined on a Garofoli review - whether there is a basis
upon which the authorizing judge could grant the order. If the
proposed cross-examination is not likely to assist in the
determination of this question, it should not be permitted.
However, if the proposed cross-examination falls within the
narrow confines of this review, it is not necessary for the defence
to go further and demonstrate that cross-examination will be
successful in discrediting one or more of the statutory
preconditions for the authorization. Such a strict standard was
rejected in Garofoli. A reasonable likelihood that it will assist the
court to determine a material issue is all that must be shown.
[emphasis added]
(iii) The Test for Granting Leave to Cross-Examine Sub-Affiants:
50. It is respectfully submitted that the law in Canada is also clear and well
established that sub-affiants may also be cross-examined by an applicant
challenging the validity of a search warrant.
51. In R. v. Durette (1992), 72 C.C.C. (3d) 421 (Ont. C.A.), Finlayson J., speaking
for the majority, acknowledged that, in appropriate circumstances, counsel for
the accused may be granted leave to cross-examine sub-affiants. However, the
Applicant must be able to articulate the "utility of cross-examining" the sub-
20
affiant in question. 3 It is respectfully submitted by the Applicant that this
approach is consistent with Garofoli and applies in Nova Scotia, most recently
in R v E.W. 2020 NSSC 191 at paragraph 12:
12 In R. v. McNeil, 2009 SCC 3, Charron J., for the court,

discussed the test for likely relevance:
29 It is important to repeat here, as this Court emphasized
in O'Connor, that while the likely relevance threshold is "a
significant burden, it should not be interpreted as an onerous
burden upon the accused" (para. 24). On the one hand, the
likely relevance threshold is "significant" because the court
must play a meaningful role in screening applications "to
prevent the defence from engaging in 'speculative, fanciful,
disruptive, unmeritorious, obstructive and time-consuming'
requests for production" (O'Connor, at para. 24, quoting
from R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 32). The
importance of preventing unnecessary applications for
production from consuming scarce judicial resources cannot
be overstated; however, the undue protraction of criminal
proceedings remains a pressing concern, more than a decade
after O'Connor. On the other hand, the relevance threshold
should not, and indeed cannot, be an onerous test to meet
because accused persons cannot be required, as a condition to
accessing information that may assist in making full answer
and defence, "to demonstrate the specific use to which they
might put information which they have not even seen"
(O'Connor, at para. 25, quoting from R. v. Durette,
[1994] 1 S.C.R. 469, at p. 499).
R. v. E.W.
2020 NSSC 191, 2020 CarswellNS 686
(iv) Distilling the Test for Leave to Cross-Examine:
52. The Applicant respectfully submits that seven guiding principles can be
distilled from the aforementioned jurisprudence in respect of an application for
leave to cross-examine at a Garofolo hearing. They are as follows:
3 See the sixth full paragraph on page 25 of the judgment.

21
(I) A trial judge has a discretion to grant leave to an Applicant to
cross-examine in accordance with Garofoli and its progeny;
Reference: R. v. Garolofi, supra
(II) In seeking leave to cross-examine an affiant, an Applicant is not

required to do any of the following things:
(i) present specific allegations of deliberate falsehood or reckless

disregard for the truth in respect of specific aspects of the
affidavit;
(ii) present prima facie proof of what is alleged to controvert the

specific contents of the affidavit;
(iii) demonstrate that the remainder of the affidavit would have

been insufficient to sustain the issuance of the wiretap
authorization, once the offensive portions were set aside;
Reference: R. v. Garofoli, supra, at pp.197-98
(iv) make a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the
warrant affidavit;
Reference: R. v. Garofoli, supra, at pp.197-98, R. v.

Pires, supra, at ¶9
22
(v) demonstrate that cross-examination will be successful in
discrediting one or more of the statutory preconditions for the
authorization
Reference: R. v. Pires, supra, at ¶40
(III) In seeking leave to cross-examine an affiant, an Applicant is required

to do the following things:
(i) show a basis for the view that the proposed cross-examination
will elicit testimony tending to discredit the existence of one of
the pre-conditions to the authorization, as for example the
existence of reasonable grounds.
Reference: R. v. Garofoli, supra, at pp.197-98
Or stated differently:
(ii) show a reasonable likelihood that the proposed cross-
examination will assist the court to determine a material issue.
(IV) In seeking leave to cross-examine a sub-affiant, an Applicant must

articulate the utility of cross-examining the sub-affiant;
Reference: R. v. Durette, supra, p.25
(VI) The test for leave to cross examine is not a "stringent" or "onerous"
one;
23
Reference: R. v. Williams,supra, at ¶11, R. v. Pires,
supra, at ¶40
(VI) When permitted, the cross-examination should be confined to

questions directed to the issue for consideration by the court.
(VII) With respect to prolixity, reasonable limitations may be placed on

the cross-examination.
53. Reference: R. v. Garofoli, supra, at pp.197-98
(v) The Applicants’ Basis for Cross-Examination
54. The Applicant’s challenge to the warrant rests on the contention that the
statutory and constitutional requirements for the issuance of a warrant have
not been met. Cross-examination of the officers is expected to elicit evidence
in support of the Applicant’s position, including but not limited to those
issues outlined in paragraphs 5 through 24 herein:
55. Cross-examination of the affiant and sub-affiants is necessary to reconcile

various inconsistencies, and therefore in order to assist the Applicants in
accumulating evidence in support of an application to exclude evidence
pursuant to ss. 24(2) and 8 of the Charter. Specifically:
• The valuation put on the information received from the sub-

affiants;
24
• The disclosure reveals that no information was provided with
regards to the assessment made of the items purchased by the
individuals entering the storefronts;
• There was no undercover operation and therefore no direct evidence

of illegality; and
• The sub-affiants spend so little time observing the locations that no

clear indication exists as to how they were certain that cannabis
was being sold at these locations.
56. It is the Applicant’s position that the warrant was obtained by information
that was not properly assessed by a qualified expert and without sufficient
verification of the store’s operation and the items purchased there by the
individuals entering and exiting the premises.
57. The actual basis for obtaining the warrant was insufficiently investigated
and not one based on an extensive investigation. As a result, the information
provided in the ITO should be struck.
58. Should the ITO be struck, the search of the locations was a warrantless
search. The evidence should ultimately be excluded under s. 24(2) of the
Charter because:
• The breach brings the administration of justice into disrepute;

• The effect on the Applicant is obvious;
• No effort was made to determine whether information held in computer
storage at the storefronts constituted privileged or private information whose
presence and storage needed to be disclosed to the issuing Justice; and
• Society would not condone such flagrant abuses of power and negligent
investigations by Police Officers that result in a circumvention of the law.
25
THE SEARCH VIOLATED THE APPLICANT’S SECTION 8 RIGHTS
(i) The Duty to Investigate & Credibility Concerns
59. The duty to make full, frank and fair disclosure of all material information
relating to the Application includes the duty to investigate. The affiant police
officer should ensure the factual ascertains he or she makes, and conclusions
he or she draws, are investigated with due diligence before swearing to the
truth of the Affidavit.
R. v. Adair, [1994], O.J. No. 3265 (Gen. Div.)
R. v. Scotland,[2007] O.J. No. 5301 (Sup. Ct.)
60. In Garofoli, the Supreme Court held that the reliability of the Informant’s
information should be assessed by looking at the totality of the
circumstances. The key factors in the assessments should include: a. The
degree of detail; b. The Informant’s source of knowledge; c. The Informant’s
past performance; and d. Confirmation from other investigative sources.
R. v. Garofoli, supra, at para 68
61. In Adair, the Affidavit used to obtain an authorization did not include much
of the background information concerning the reliability of the Confidential
Informant, one Boutin, who was a disreputable inmate in a penitentiary.
Justice Moldaver (as he was then) commented on this aspect of the
investigation:
The failure on the part of these officers to do a thorough and meaningful check into
Boutin’s background was serious indeed. Had they done so, they would have
uncovered the many facts which have been exposed before me, facts so telling against
the credibility and reliability of Boutin. The net effect of their conduct, which can at
best be described as grossly delinquent, was the spawning of a distorted, misleading,
incomplete and often inaccurate Affidavit upon which the authorizing Judge granted
the application. For reasons which will become apparent, I am of the view that the
26
Affidavit which found its way to Mr. Justice Hamilton made a mockery out of the
duty to disclose fully, fairly and frankly.
R. v. Adair, supra at para. 19
62. Evidence from an untested informant cannot, standing alone, provide

sufficient grounds for a search where the Police do not conduct an
independent inquiry to corroborate the Informant’s information, beyond those
details that describe innocent or common place conduct. In these
circumstances, the quality of the information and corroborative evidence
must compensate for the inability to assess the credibility of at least one of
the two informants.
R. v. Debot, [1989] 2 S.C.R. 1140
63. In Sutherland, the Ontario Court of Appeal held when an informant is

untested, the word ‘reliable’ should not be used to describe such informant
and such language should not be excised from the Affidavit.
R. v. Sutherland (2000), 150 C.C.C.(3d) 231 (Ont.C.A.) at pp 10 - 11.
64. In Hanse, the nature of Weedmaps being unreliable evidence and

inadmissible hearsay at trial was discussed:
[12] I know nothing of either weedmaps.com or wikileaf.com, but they certainly

cannot be said to be sources of “indisputable accuracy.
[19] I have considered the very interesting article by Pilet and Ledgerwood entitled
“Judicial Notice and the Internet” and many of the cases to which the authors
refer. I agree readily with the general proposition that there are many sources
available on the internet that provide accurate and reliable information and are
regarded to be sources of indisputable accuracy. Cases where judicial notice have
been taken of things found on the internet have typically involved aerial photos,
Google Maps, Google Earth and online dictionaries. Just because something is found
on the internet does not make it unreliable – the nature of the source must be
considered. The same can be said of text books – just because somebody gets a book
published does not make it a source of indisputable accuracy. I would distinguish the
numerous cases referred to on that basis. They are quite simply not like the case
before me.
27
[21] The two articles that the defence seeks to file are inadmissible hearsay. The
evidence does not come close to meeting the criteria for admission on either the
necessity nor reliability criteria. The evidence is wholly unreliable and cannot be
challenged in a meaningful way by the Crown. It is not proper evidence to be before
the jury.
R. v. Hanse, 2018 ONSC 6691 (CanLII), <https://canlii.ca/t/hvxz2>
65. In Graff, statements in the ito that were obtained from unreliable online
sources were excised:
Information obtained using SpyPig was unreliable and should be excised from the
Information to Obtain and the Application
R v Graff, 2015 ABQB 415 at para 83
66. In Balen, a review of the case law was considered with respect to the
reliability of online source:
Apparently, feeling the need for further clarification and evidence, the trial judge
conducted a Google search to confirm whether K-way manufactured tracksuits. In
limited circumstances, a trier of fact may take judicial notice of an adjudicative fact
“capable of immediate and accurate demonstration by resort to readily accessible
sources of indisputable accuracy”: R. v. Find (2001), 2001 SCC 32 (CanLII), 154
C.C.C. (3d) 97 (S.C.C.), at pp. 115, 119; R. v. Williams (1998), 1998 CanLII 782
(SCC), 124 C.C.C. (3d) 481 (S.C.C.), at p. 489. Internet Google search engine access
to a Wikipedia or similar site, for example, may or may not contain accurate
information. While a court may utilize the internet to access Google maps (R. v.
Calvert, 2011 ONCA 379, at paras. 2-8), resort to the internet by the trier of fact
regarding commercial information, conduct outside the courtroom not disclosed at
trial, is inappropriate: see generally, United States of America v. Saad (2004), 2004
CanLII 9931 (ON CA), 183 C.C.C. (3d) 97 (Ont. C.A.), at p. 110 (leave to appeal
refused, [2004] S.C.C.A. No. 232); Ardoch Algonquin First Nation v. Canada
(Attorney General) (2003), 2003 FCA 370 (CanLII), 311 N.R. 180 (F.C.A.), at
para. 16; AstraZeneca Canada Ltd. v. Apotex Inc. (2003), 2003 FCA 487 (CanLII), 30
C.P.R. (4th) 431 (F.C.A.), at paras. 6-14; R. v. Whittaker (2001), 2001 ABQB 873
(CanLII), 301 A.R. 136 (Q.B.), at para. 25.
R. v. Balen, 2012 ONSC 2209 at para 61
67. In Frederickson, the need to cross-examine an affiant on the reliability of

opinions presented and the need to introduce independent evidence
contradicting the impugned opinion was delineated:
Mr. Frederickson relies on R. v. Wong, 2017 BCSC 306 in which the trial judge found
the affiant’s stated opinion and conclusions in various statements suffered significant
frailties. However, in that case the affiant was cross-examined on her knowledge,
28
experience, and the basis of her opinions. As such the trial judge had an evidentiary
basis to conclude her statements in the ITO were unreliable. For example,
evidence was adduced that the affiant had no training in clandestine labs, very little
knowledge about how methamphetamine was manufactured, and did not really know
what a precursor was. On that basis the trial judge found any opinions she expressed
in the ITO respecting the production of methamphetamine ought to be disregarded in
light of her lack of experience and personal knowledge on that subject matter.
R. v. Frederickson, 2019 BCPC 155 at para 39
68. In Whittaker, its was emphasized that judicial notice cannot be taken of
evidence posted on an internet site:
I am not sufficiently familiar with the Drug Identification Bible to know whether I
can take judicial notice of the information reproduced above; I do not know if this is a
“readily accessible source of indisputable accuracy”. Much less can I take judicial
notice of information posted on an Internet site.
R. v. Whittaker, 2001 ABQB 873 at para 25
69. In Andrade, statements in the ITO that referred to previous charges that
were withdrawn should not form part of the evidence of alleged criminal
activity and must be excised:
Counsel for the Applicant, Mr. Andrade, argued that the fact that Mr. Andrade was
charged with drug trafficking several years before, which information was also
included in the ITO, should be excised as those charges were withdrawn. I agree that
the fact that there were earlier charges that were withdrawn should not form part of
the evidence in support of alleged criminal activity on the part of Mr. Andrade. That
information should therefore be excised.
R. v Andrade, 2017 ONSC 1974 at para 45
70. In case at bar, there are only two statements from the affiant that give any
indication of cannabis sales were gleamed from two websites, Weedmaps.com
and thefarmassists.com. The affiant states his belief that Weedmaps is a
directory of dispensaries that are actively operating when in fact, cross-
examination will demonstrate he did no investigation to establish that belief
and it is not a fact that can be established through judicial notice. He was
not aware of who was in control of the Weedmaps listing and had no idea
when it was last updated. He further had no idea what policies Weedmaps
has in place to verify the accuracy of listings. Absolutely no police
29
investigation was performed to corroborate a temporal aspect to the
information or “tip” provided by these websites that cannabis sales were
actively occurring and were occurring at the addresses of interest. The phone
number listed on the website was never called and the email address not
contacted. The applicants intend to introduce evidence that Weedmaps has
listings for cannabis dispensaries that no longer operate. Even if the listing
was corroborated temporally, a reasonable inference that was investigated
was that the business simply connected licensed medical patients with
designated growers who could become licensed as their growers and provide
the products listed for sale.
71. The affiant did no investigation to determine who was in control of the
website thefarmassists.com or when it was last updated. The phone number
listed on the website was never called and the email address not contacted.
There is no indication whether the affiant determined from the website
whether the business sold cannabis through storefront or only delivery.
There is no indication that the business did not simply connect licensed
medical patients with designated growers who could become licensed as their
grower. If this courts determines that it cannot be accepted on judicial
notice, the applicants intend to introduce evidence that a website can exist
for years without any input or updates and further evidence that businesses
that no longer operate may still have an active website that exits until the
hosting contract expires.
72. Given the concerns regarding the temporal preciseness and reliability of the
two websites that reference cannabis sales, an extensive police investigation
should have been necessary to corroborate the information and justify
issuance of the warrant. However, no real investigation was conducted, aside
30
from observing 5 people enter 2320 Gottingen St, Halifax in the span of 7
minutes and a bunch of empty cars parked at 5106 Hwy #7 Porters Lake.
(ii) Lack of Reasonable and Probable Grounds
73. In R. v. Downey, 2017 NSSC, Justice Rosinski recently reviewed the

procedural context and restricted nature of review that is undertaken on
application of this nature:
[6] In World Bank Group v. Wallace, 2016 SCC 15, the unanimous court stated:
120 As a general rule, there are two ways to challenge a wiretap

authorization: first, that the record before the authorizing judge was
insufficient to make out the statutory preconditions; second, that the record
did not accurately reflect what the affiant knew or ought to have known, and
that if it had, the authorization could not have issued (R. v. Araujo, 2000 SCC
65, [2000] 2 S.C.R. 992, at paras. 50-54; Pires, at para. 41; see also R. v.
Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, on the exclusion of
unconstitutionally obtained information from warrant applications). The
challenge here is brought on the second basis, sometimes referred to as a
subfacial challenge.
121 In view of the fact that a subfacial challenge hinges on what the affiant
knew or ought to have known at the time the affidavit was sworn, the
accuracy of the affidavit is tested against the affiant's reasonable belief at
that time. In discussing a subfacial challenge to an information to obtain a
search warrant, Smart J. of the British Columbia Supreme Court put the
matter succinctly as follows:
During this review, if the applicant establishes that the affiant knew or
should have known that evidence was false, inaccurate or misleading, that
evidence should be excised from the [information to obtain] when
determining whether the warrant was lawfully issued. Similarly, if the
defence establishes that there was additional evidence the affiant knew or
should have known and included in the [information to obtain] in order to
make full, fair and frank disclosure, that evidence may be added when
determining whether the warrant was lawfully issued.
(R. v. Sipes, 2009 BCSC 612, at para. 41 (CanLII))
122 Smart J.'s comments apply equally to a Garofoli application (see R. v.
McKinnon, 2013 BCSC 2212, at para. 12 (CanLII); see also Grant, at p.
251; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42). They
accord with this Court's observation in Pires that an error or omission is not
relevant on a Garofoli application if the affiant could not reasonably have
31
known of it (para. 41). Testing the affidavit against the ultimate truth rather
than the affiant's reasonable belief would turn a Garofoli hearing into a trial
of every allegation in the affidavit, something this Court has long sought to
prevent (Pires, at para. 30; see also R. v. Ebanks, 2009 ONCA 851, 97 O.R.
(3d) 721, at para. 21).
123 When assessing a subfacial challenge, it is important to note that
affiants may not ignore signs that other officers may be misleading them or
omitting material information. However, if there is no indication that
anything is amiss, they do not need to conduct their own investigation (R. v.
Ahmed, 2012 ONSC 4893, [2012] O.J. No. 6643 (QL), at para. 47; see
also Pires, at para. 41).
[7] Very recently, Justice Casey Hill has set out a helpful summary of the applicable
legal principles in R. v. Persaud, 2016 ONSC 8110:
63 In a s. 8/24(2) pre-trial Charter motion, the court reviewing a search

warrant ITO does not stand in the place of the justice of the peace who issued
the warrant. The properly circumscribed limits of review were succinctly
summarized by Watt J.A. in R. v. Mahmood et al., 2011 ONCA 693, at
para. 99 (leave to appeal refused [2012] S.C.C.A. No. 111):
A reviewing judge does not substitute his or her view for that of the justice
who issued the warrant. Rather, the reviewing judge considers the record
before the issuing justice, the ITO, trimmed of any extraneous or
unconstitutionally obtained information, but amplified by evidence adduced
on the hearing to correct minor technical errors in drafting the ITO, to
determine whether there remains sufficient credible and reliable evidence to
permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1
S.C.R. 253, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3
S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R.
992, at paras. 54 and 59: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2
S.C.R. 1421, at p. 1452; and R. v. Wiley,1993 CanLII 69 (SCC), [1993] 3
S.C.R. 263, at pp. 273-274.
(emphasis of original)
See also: Quebec (Attorney-General) v. Laroche (2002), 2002 SCC 72
(CanLII), 169 C.C.C. (3d) 97 (SCC), at p. 188; R. v. Reid, 2016 ONCA 524, at
para. 73 (appln for leave to appeal filed [2016] S.C.C.A. No. 432); R. v. Nero
and Caputo, 2016 ONCA 160, at paras. 70-72, 79, 82, 84, 87, 116 (leave to
appeal refused [2016] S.C.C.A. No. 184, 187); R. v. Budd (2000), 2000 CanLII
17014 (ON CA), 150 C.C.C. (3d) 108 (Ont. C.A.), at p. 117 (leave to appeal
refused [2001] S.C.C.A. No. 57).
64 In performing its narrow role of constitutional review of an ITO, various
instructive guidelines have been applied by courts including:
(1) The warrant is presumptively valid unless the challenging party
establishes that there was no basis for its issuance: R. v. Hafizi, 2016 ONCA
933, at para. 43; R. v. Campbell, 2010 ONCA 588, at para. 45 (aff'd 2011 SCC
32); R. v. Crevier, 2015 ONCA 619, at paras. 66, 74; Nero and Caputo, at
para. 68.
32
(2) The review takes a practical, common sense approach to all the
circumstances (R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253, at
para. 129), considering the narrative of the ITO contextually without
piecemeal dissection: Hafizi, at paras. 49-50, 56; R. v. Sadikov, 2014 ONCA
72, at para. 87.
(3) "[T]he review is not an exercise in examining the conduct of the police
with a fine-toothed 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 in support of the
application": R. v. Nguyen, 2011 ONCA 465, at para. 57.
(4) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.), at para. 135
(affd 2014 ONCA 364):
The appropriate approach for judicial review of the facial validity of a search
warrant and related ITO is scrutiny of the whole of the document, not a
limited focus upon an isolated passage or paragraph. Reference to all data
within the four corners of the information, a common sense review not line-
by-line word-by-word dissection, provides the fair and reasonable context for
the assertions in question: R. v. Grant (1999), 1999 CanLII 3694 (ON
CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999]
S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, 1998 CanLII 5765
(ON CA), [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R.
v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19
W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney
General) (1991), 1991 CanLII 984 (BC CA), 2 B.C.A.C. 73 (C.A.) at 79.
(5) Police officers are not legal draftspersons and cannot, in an ITO, be
expected to "spell out things with the same particularity of counsel": Re
Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d)
188 (Ont. H.C.), at p.190; R. v. Green, 2015 ONCA 579, at para. 18; R. v.
Durling (2006), 2006 NSCA 124 (CanLII), 214 C.C.C. (3d) 49 (N.S.C.A.), at
para. 19; R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d)
357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983), 1983
CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.
(6) That said, as observed by Fish J. in Morelli, at para. 167, police officers
"should draft ITOs as precisely and clearly as possible".
(7) It will not be surprising that an ITO will have some flaws -- "[f]ew
applications are perfect": Nguyen, at para. 58. The question remains whether,
following any amplification and/or excision, the core substance of the
ITO could support the justice of the peace's exercise of discretion to issue the
warrant.
(8) While it is expected that an ITO will present reliable, balanced and
material facts supporting the asserted grounds of belief, an ITO affiant need
not attempt to replicate a Crown disclosure brief -- the document should be
clear, concise, legally and factually sufficient, and "need not include every
minute detail of the police investigation": C.B.C. v. A.-G. for New
Brunswick (1991), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p.
562; R. v. Araujo (2000), 2000 SCC 65 (CanLII), 149 C.C.C. (3d) 449 (S.C.C.),
at p. 470; R. v. Ling (2009), 2009 BCCA 70 (CanLII), 241 C.C.C. (3d)
409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165).
33
[8] Moreover, in relation to what are “material” errors or omissions, the comments of
Justice Blair in R. v. Nyguyen, 2011 ONCA 465, are instructive:
48 It is trite law that an applicant for a search warrant has a duty to

make full, frank and fair disclosure of all material facts in the ITO
supporting the request: Araujo, at para. 46; Morelli, at paras. 44, 55 and 58-
60; R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 31 O.R. (3d) 161 (C.A.),
at p. 177. This duty includes the duty not to omit material facts. As LeBel J.
said in Morelli, at para. 58:
In failing to provide these details, the informant failed to respect his
obligation as a police officer to make full and frank disclosure to the justice.
When seeking an ex parte authorization such as a search warrant, a police
officer -- indeed, any informant -- must be particularly careful not to "pick
and choose" among the relevant facts in order to achieve the desired outcome.
The informant's obligation is to present all material facts, favourable or not.
[Italics in original.]
49 The "details" referred to in Morelli, however, were facts known to the
police at the time, but not disclosed. What is complained of here is a series of
"omissions of fact" not addressed in the ITO, i.e., facts that were not known,
or matters that were not observed by D.C. Mason, and that the respondent
submits should nonetheless have been put forward and countered in the ITO.
The trial judge accepted this submission.
50 I disagree. Although there may be circumstances in which the duty to
provide full and fair disclosure will require an applicant for a search warrant
to negative something unseen or not done, I would expect such circumstances
to arise infrequently. In most cases, the absence of a reference to something
not seen, not heard, or not done, will lead to the sensible inference that
whatever it is was not seen, not heard or not done. As Doherty J.A. observed
in R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 149 O.A.C. 132 (C.A.),
at para. 43:
Cst. Henry described the indicia of impairment that he observed. It was
implicit that he did not observe any other indicia of impairment. His failure
to specifically enumerate the things he did not see does not constitute non-
disclosure.
51 The obligation on applicants for a search warrant is not to commit the
error of material non-disclosure. "Materiality" is something that bears on the
merits or substance of the application rather than on its form or some other
inconsequential matter: R. v. Land (1990), 1990 CanLII 10969 (ON SC), 55
C.C.C. (3d) 382 (Ont. H.C.), per Watt J., at p. 417. There is no obligation on
applicants to anticipate, and to explain away in advance, every conceivable
indicia of crime they did not see or sense and every conceivable investigative
step they did not take at the time in order to counter the creative arguments
of able defence counsel on a review hearing many months or years after the
event. Here, for the most part, the impugned "omissions of fact" relied upon
by the trial judge fall into the latter type of category, or they are simply
immaterial, or were not omissions at all.
[9] Justice Watt, as he then was, commented in R. v. Land, (1990) 1990 CanLII 10969
(ON SC), 55 CCC (3d) 382:
34
3. The Second Step: Materiality
a. Introduction
The second step looks to the relationship between the errors and/or
omissions in the supportive affidavit and the conditions precedent of
which adequate proof must be made to permit authorization to be
given. This requirement, shortly described as "materiality",
ensures that the matter of the error and/or omission is one which
bears upon the merits or substance of the application, rather than its
form or some other inconsequential matter. It must be a matter of
such significance as to be likely to influence the
determination of the dual conditions precedent of probable
cause and investigative necessity or to alter the character of
the supportive affidavit. The essence of the materiality
requirement, in other words, is the nexus which the applicant must
demonstrate between the facts which were not or wrongly disclosed
and the dual requirements of probable cause and investigative
necessity.
(iii) Application of Principles to Applicants Case
74. The question becomes whether the evidence before the issuing Justice of the
Peace was sufficient to induce an objectively reasonable belief that evidence
of illegal sales and distribution of cannabis would be found at 5106 Hwy 7,
Porters Lake and 2320 Gottingen St, Halifax. It is respectfully submitted
that no reasonable person could conclude from the evidence contained in the
Information to Obtain that there was a probability that a criminal offence
was taking place at 2320 Gottingen St., Halifax and 5106 Hwy #7, Porters
Lake.
75. In the case at bar, there was a complete absence of credible and reliable
evidence that was sufficient to form the requisite reasonable and probable
grounds for a search warrant on two commercial spaces with restricted access
and a private residence. The online sources lacked the necessary temporal
information to assist any justice in formulating the opinion that there were
credible facts to authorize the search of the businesses and the residence for
evidence of a illegal cannabis sales and distribution. Moreover, there is an
35
absence of any persuasive corroborative evidence, surveillance and/or
information to bolster the information obtained from the online sources of
disputable reliability.
76. The police investigation was cursory and grossly insufficient. The extent of
the police investigation and corroboration consisted principally of the
following:
(a) Viewing on a single occasion an online Weedmaps listing of unknown

origin, reliability and time of listing that displayed cannabis derivatives
in a menu and noted the hours “9 am – 9pm” and the address 2320
Gottingen St somewhere on the listing.
(b) Viewing on a single occasion the website www.farmassists.com and
reading on the main page that those involved with the business offered
dried cannabis, concentrates, and edible products at reasonable prices for
each member’s treatment needs and requirements. The address 2320
Gottingen was noted somewhere on the website.
(c) Two officers (the sub-affiants) attending the address 2320 Gottingen St
on a single occasion for 7 minutes and making note of foot traffic that
included 5 individuals entering the address which they identify as
customers. There is no indication of why they are believed to be
customers; and
(d) The affiant attending the address 5106 Hwy #7 and observed 3 empty
parked vehicles and observed a fourth vehicle actively parking but
uncertainty with respect to whether the vehicle’s occupant(s) entered the
building and if so, through what entrance.
(e) Determining the Applicant’s (3247317 NS) directors and the other
companies and societies that the Applicant (Christopher Enns) is director
of through the publicly reviewable Registry of Joint Stocks listings.
36
(f) Associating the business name “The Farm Assists” with some previous
connection to the address 2320 Gottingen St and 5106 Hwy #7 through
police databases.
(g) Associating the business name “The Farm Assists Medical Resource
Centre” with a yellowpages.ca listing that indicated the address 5106
Hwy #7, Porters Lake.
(h) Associating the business name “The Farm Assists” with the address 5106
Hwy #7 and 2320 Gottingen St through Facebook and Instagram pages
that provided no indication of illegal cannabis sales or distribution.
(i) Associating the applicant (Christopher Enns) with a 2017 CBC news
article that refers to previous criminal charges that were withdrawn.
77. The Affiant suggests that this investigation and corroboration, namely with
regards to confirming the identification and addresses of the Applicants,
tends to make the online hearsay source information more credible and
reliable. It is respectfully submitted that corroboration of innocent
information such as a commercial/residential address, the address having
foot traffic over 5 minutes and the identification of an individual who was the
a director of business at some point in time associated with the address, alone
is of little significance in justifying the issuance of a warrant.
78. . On the subject of whether the informant’s information was compelling,

Castillo
79. also presented facts similar to those in the case at bar. Respecting that issue,
Justice Allen stated:
“Mark Castillo possesses a black and silver handgun. He was unable to advise where
Castillo stores the gun". That is the extent of the information contained in the ITO
purporting to support the allegation that Mr. Castillo has committed the crime of
possessing a firearm. This is precisely that form of bald and conclusory statement R v
Debot warns lacks compellibility and has little value on its own”
R. v. Castillo 2011 ONSC 3257 at para 20
37
80. In the case at bar, we have two online sources of unknown reliability that
indicate cannabis sales but do not indicate and reference time or date as to
when these sales are occurring or whether they are actively occurring. While
the address 2320 Gottingen St exists on the Weedmaps listing and Website,
there is no indication that live sales are happening there. While the listings
have phone numbers, no calls were made to corroborate the information in
the listing or website and no surveillance or police investigation corroborated
the alleged criminality aspect of the unreliable online evidence.
81. In Lewis, the Ontario Court of Appeal affirmed that details that accurately
predict the accused’s whereabouts, his or her physical characteristics, or the
car he or she is driving, which could be provided by any one familiar with the
accused, do not on their own constitute reasonable and probable grounds to
arrest or search the accused.
R. v. Lewis (1998), 122 C.C.C.(3d) 481 (Ont.C.A.) at para 22 14 41.
82. It is respectfully submitted that the information provided was not detailed
and the evidence associated with the business addresses, the Applicants and
or, the illegal cannabis sales was basic, inaccurate and conclusory.
83. Additionally, there is nothing in the information that was provided to or

reviewed by the officer(s), which would assist an issuing justice in
determining whether there was evidence to be found at the impugned
addresses for this particular case. Most recently the dicta of Deschamps J. in
Morelli at paragraph 129 (although she as writing for the minority of three
out of seven of the judges of the Supreme Court of Canada the following
comments are not inconsistent with the majority reasons) reasoned the
following:
Determining whether evidence gives rise to a “credibly based probability” does not
involve parsing the facts or assessing them mathematically. Rather, what the judge
38
must do is identify credible facts that make the decision to authorize a search
reasonable in view of all of the circumstances. I therefore agree with the
nontechnical common-sense approach take by Renqhuist J (as he then was) in
Illinois v. Gates 462 U.S. 213 (1983): The task of the issuing magistrate is simply to
make a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the “veracity and “basis of knowledge” of
persons supplying hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.
R. v. Morelli, [2010] 1 S.C.R. 253 (S.C.C)
84. . It is respectfully submitted that no matter what formulation is used, it is

essential that the grounds for believing that there is evidence in the place to
be searched are based on the operation of reason and not on mere suspicion.
The question becomes, was there any evidence to assist the issuing Justice in
determining there was “evidence with respect to the commission of an
offence” at 2320 Gottingen St, Halifax and 5106 Hwy 7, Porters Lake. It is
respectfully submitted that there was no evidence to assist the issuing
Justice in determining if there was evidence with respect to the commission
of an offence
85. . Lastly, it should be noted that the issuing Justice should consider receiving
Informations to Obtain from each police officer with first-hand knowledge of
the facts supporting the issuance of the search warrant.
R. v. Royce Andrew Hatton [2011] ABQB 242
86. . Although officers can rely on hearsay in their sworn information, the issuing
justice should have turned her mind to the fact that the only brief attempt at
surveillance to corroborate the information in Godbout’s affidavit respecting
2320 Gottingen St. was second-hand information from Officer Stevens and
Jardine, yet no apparent efforts were made to have either officer swear a
supplementary information in support of the warrant
39
C. THE EVIDENCE SHOULD BE EXCLUDED PURSUANT TO SECTION
24(2)
87. The application of the Grant criteria to evidence obtained by way of an

unconstitutional search has been well documented in recent cases. The first
of the Grant criteria requires an examination of the seriousness of the
Charter infringing state conduct. That conduct is placed on a continuum
ranging from willful misconduct to blameless conduct. With this particular
investigation there was no police investigation that would corroborate the
existence of the firearm at the location in question. Rather, the police
investigation only yielded corroboration of the Applicant’s name and address
and to that end, omitted to inform the issuing justice that neither of the
Applicants had criminal convictions or findings of guilt. The manner in
which the material was presented in the Information to Obtain fell far below
the high standards as described in R. v. Morelli.
R v. Morelli, [2010] 1 S.C.R. 253 (S.C.C.)
88. The second factor identified in Grant is the impact of the breach on the
Charterprotected interests of the accused, which points strongly towards
exclusion of the evidence. A person has a high expectation of privacy at their
place of business as it is the source of income that both sustain the business
and its employees who are necessary to operate the business. Thus a Charter
breach strikes directly at livelihood. The search in the case at bar struck
directly at the core of the Applicants’ constitutional right to privacy.
89. The third factor identified in Grant, society’s interest in the adjudication of
the case on its merits, likewise favours admissibility and may have strong
application in this case. Exclusion in this case would no doubt frustrate the
prosecution and perhaps prevent a trial on its merits. In R. v. Blake, the
Ontario Court of Appeal reasoned the following:
40
Absent any claim of police misconduct or negligence in the obtaining of the initial
search warrant, and absent any attempt to go behind the redacted information, it
would be inappropriate to proceed on any basis other than that the police conducted
themselves in accordance with the applicable legal rules. If there were a taint of
impropriety, or even inattention to constitutional standards, to be found in
the police conduct, that might well be enough to tip the scales in favour of
exclusion, given the very deleterious effect on the accused's legitimate
privacy interests. I can see none. The evidence is admissible under the approach to
s. 24(2) set out in Grant [emphasis added].
R. v. Blake, (2010), 251 C.C.C. (3d) 4 (Ont. C.A.) at para 33
90. Societies interest in adjudicating cases on the merits that involve medical
cannabis is low following legalization and the increasing burden that other
substances such as cocaine, opiates, and the methamphetamines are having
on our communities.
91. In the case at bar, the contents of the Information to Obtain reveal an
inattention to constitutional standards in that they fail to specifically address
the Applicants’ privacy interests and the lack of reliable evidence from which
to surmise that there was any evidence that would be found in the impugned
addresses. That failure renders the state’s conduct more serious than the
state conduct in Blake, and tips the scales in favor of excluding the fruits of
the unconstitutional search.
PART 4: ORDER REQUESTED
92. The Applicant respectfully requests an order granting leave to cross-examine

the affiant and sub-affiants at the Garofoli hearing upon the ITO sworn in
July 2019, and;
93. The Applicant seek an Order excluding from the trial all evidence seized at
2320 Gottingen St, in the city of Halifax on August 1, 2019 and 5106 Hwy #7,
Porters Lake, in the city of Porters Lake on August 1, 2019 and exclusion of
all testimony relating to that evidence, pursuant to sections 8 and 24(2) of the
Charter, and;
94. Such further and other Orders as counsel may advise and this Honourable
Court may permit.
41
All of which is respectfully submitted this 19th day of August, 2021.
_____________________________________
Christopher Enns, self represented
TO: PPSC
AND TO: Court Clerk's Office

AND TO: Trial Co-ordinator’s Office
42
List of Authorities
Hunter v. Southam Inc., [1984] 2 S.C.R. 145
R. v. Adair, [1994], O.J. No. 3265 (Gen. Div.)

R. v Andrade, 2017 ONSC 1974
R. v. Balen, 2012 ONSC 2209
R. v. Blake, (2010), 251 C.C.C. (3d) 4 (Ont. C.A.)
R v. Buhay, (2003), 174 C.C.C.(3d) 97 (S.C.C.).
R. v. Castillo 2011 ONSC 3257
R. v. Debot, [1989] 2 S.C.R. 1140

R. v. Downey, 2017 NSSC 65
R. v. Durette (1992), 72 C.C.C. (3d) 421 (Ont. C.A.)
R v. Edwards, [1996] 1 S.C.R. 128
R v E.W. 2020 NSSC 191
R v Felger, 2014 BCCA
R. v. Fitt (1995), 1995 NSCA 47 (CanLII), 96 C.C.C. (3d) 341 (N.S.C.A.), aff’d 1996 CanLII
251 (SCC), [1996] 1 S.C.R. 70
R. v. Frederickson, 2019 BCPC
R. v. Garofoli (1990), 60 C.C.C. (3d) 161
R v Graff, 2015 ABQB 415
R. v. Hanse, 2018 ONSC 6691
R. v. Lewis (1998), 122 C.C.C.(3d) 481 (Ont.C.A.)
R. v. Morelli, [2010] 1 S.C.R. 253 (S.C.C)
R. v. Pires and Lising, [2005] S.C.J. No. 67 (S.C.C.)
R. v. Royce Andrew Hatton [2011] ABQB 242
R. v. Scotland,[2007] O.J. No. 5301 (Sup. Ct.)
R. v. Sutherland (2000), 150 C.C.C.(3d) 231 (Ont.C.A.) at pp 10 - 11.
R. v. Whittaker, 2001 ABQB 873
R. v. Williams, [2003] O.J. No. 5122
43
Christopher Enns
764 East Chezzetcook Rd
East Chezzetcook, NS B0J 2L0
September 29, 2021
Judge Elizabeth Buckle

Provincial Court In Halifax
5250 Spring Garden Rd.
Halifax, NS B3J 1E7
Judge Buckle:
The two unreported cases that I referred to in my oral submissions were:
R v Ashley Brown et al NSPC (Truro) – April 26, 2019 @ 9:30am
R v Gillian Sampson et al NSPC (Antigonish) – January 23, 2020 @ 9:30am
With leave, I would like to address the R v Rocha 2017 ONCA 707 case that you
raised during oral submissions. I was not sufficiently familiar with the case at the
time to address it and would welcome the opportunity to briefly do so here.
Having reviewed that case, I would first address the overwhelming fact-situation
difference which was the existence of a compelling source informant. An individual
provided substantial details about the criminality at the restaurant that was
alleged including:
- Direct awareness of active cocaine sells at the restaurant and the
layout of the restaurant
- Direct knowledge of the brothers who operated the restaurant
- Details on where in the restaurant the cocaine was store and how it
packaged
- Details on where in the restaurant the customers used the cocaine
- Personal observations of over 10 drug transactions and observation of
the actual drug during transactions.
In contrast to the very specific and compelling information the informant provided
about the criminality at the restaurant, the informant provided no detail about
where drugs were observed at the house, when they were observed, or who observed
them. The Court of Appeal found that it was this detail and the compelling nature
of the informant’s tips that justified the issuance of the search warrant with respect
to the restaurant but not the house.
[25] Considering the totality of circumstances and particularly the compelling
nature of the informer's tip, the ITO concerning the restaurant was sufficient.
In the case at bar, there is no source informant or police observations of criminality.

It is not simply the case that the affiant worked with informant statements that
were ultimately proven on a s.8 challenge to be not sufficiently credible, not
compelling, or not corroborated but in good faith, the affiant thought they were and
a warrant was signed on that basis.
This is an extremely rare situation where both the affiant and the justice of the
peace who issued the warrant believed that the use of online sources of unknown
reliability, unknown credibility and unknown staleness are sufficient alone to
demonstrate the criminality aspect in an affiant’s reasonable and probable grounds
to believe. Justice MacKinnon identified this issue in both Sampson, supra and
Brown, supra and rightfully separated the court from such careless and negligent
inattention to constitutional standards and further identified the infringement as
ranging from serious to very serious. Despite this, the issue has become a systemic
one as the applicants here have identified. This warrants further need for the
justice system to disassociate from such conduct and perhaps issue a written
decision that encourages police and Justices of the Peace beyond those involved in
this case to adhere to the minimum standards clearly expressed. Rocha, supra at
para 29
I should not be taken as holding that whenever a search warrant has been granted,
the first Grant inquiry favours admission of the evidence. But the approach is not,
as held by the trial judge, to hold in favour of exclusion because obtaining a search
warrant is a deliberate process. The approach rather should be to look at the ITO
and consider first if it is misleading in any way. If so, the court should then consider
where it lies on the continuum from the intentional use of false and misleading
information at one end to mere inadvertence at the other end.
The applicants respectfully submit that the court must dissociate itself from this
clear lack of adherence to constitutional standards. It is a careless and negligent
level of inattention that should have been stopped by any Justice of the Peace
reading the ito objectively. Even members of the public who would like to see these
charges prosecuted, upon reviewing the lack of investigation, surveillance and
adherence to constitutional expectations in this process, would agree that the
seriousness of state infringing conduct supports separation of the court from the
conduct.
There is a taint of impropriety and inattention to constitutional standards that the
court in Blake, supra specifically expressed was the appropriate time for exclusion.
Rocha followed that logic in excluding the evidence obtained from a
unconstitutionally obtained warrant to search a residence. There simply was not
sufficient compelling, credible evidence from an informant of criminality. There
was for the restaurant though. Here, we are in the same situation as the house in
Rocha.
The fact that the impugned addresses were a commercial premise or mixed
commercial-residential premise with restricted access does not mitigate the
seriousness of the state infringing conduct or the high level of privacy expected.
The business was entitled to a substantial and serious level of privacy that was
highlighted in R. v. Baron (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510
(S.C.C.)
Physical search of private premises (I mean private in the sense of private
property, regardless of whether the public is permitted to enter the
premise to do business) is the greatest intrusion of privacy short of a
violation of bodily integrity."
Your very truly,
Chris Enns
Christopher Enns
764 East Chezzetcook Rd
East Chezzetcook, NS B0J 2L0
October 20, 2021
Judge Elizabeth Buckle

Provincial Court In Halifax
5250 Spring Garden Rd.
Halifax, NS B3J 1E7
Judge Buckle:
The applicants respectfully draw your attention to a very recent and relevant
citation of Rocha, supra found in R. v. Muddei, 2021 ONCA 200 that directly
explores Rocha in the context of s. 24(2) and the impact of having obtained a search
warrant on the "seriousness of the breach".
:
[91] Counsel for the provincial Crown made two additional arguments,
which they submit were not considered by Corthorn J. and, which if taken into
account, significantly diminish the blameworthiness of the state conduct
resulting in the s. 8 breach. They submit the police followed the required
procedure under the Criminal Code by seeking a judicial authorization. In
doing so, the police acted in good faith and with the judicial approval of the
issuing judge: Rocha, at paras. 28, 32.
[92] The Crown submission is a fair one, but it goes only so far in assessing
the blameworthiness of the state conduct. Even when the police follow the
proper procedures and seek a judicial authorization, serious inadequacies in
the material placed before the issuing judge can justify a finding the police
acted negligently or unreasonably, thereby exacerbating the blameworthiness
of the state conduct leading to the Charter breach: Rocha, at paras. 32-38.
Corthorn J. properly used her finding that the affidavit was materially, albeit
unintentionally, misleading to place the state conduct at the more serious end
of the fault spectrum.
[93] Crown counsel also argue that the seriousness of the state conduct is
mitigated because the grounds set out in the affidavit, if they were inadequate,
fell just short of the grounds needed for an authorization. This was a near miss,
say Crown counsel.
[94] Corthorn J. did not accept this submission. Nor do I. I have difficulty
with the proposition that an affidavit that does not provide a basis upon which
an issuing judge could (not should or would) be satisfied the criteria in s.
186(1) have been met can be accurately described as a near miss. The standard
of review to be applied by the reviewing judge sets a relatively low bar. I would
think that most affidavits which cannot clear that low bar will be seriously
deficient in setting out the grounds required to justify the issuance of an
authorization.
[95] Finally, I cannot agree that the finding by Brown J., that the affidavit
satisfied the requirements of s. 186(1), supports the claim that if the affidavit
fell short, it barely missed the mark. With respect to Brown J., he fell into the
same error as the affiant.
Muddei, supra and Rocha, supra ask this court to assess the affiant’s
blameworthiness on a scale by placing the fact that warrant was issued on one side
and weighing the other side with the materially misleading or omitted information,
even if the misleading or omitted information was not intentional. Intentionality
would further add to their weight. The inadequacies with the ito are generally
considered unreasonable and negligent when they are so great as to result in the ito
not meeting the low bar of there being any credible evidence upon which to believe
evidence of the offence would be found. The factors supporting blameworthiness
have already been canvassed but are worth repeating.
The affiant’s statements with respect to the state of law was materially misleading,
even it was not intentional or a result of negligence in reviewing the law. Grant,
supra at para 133:
While police are not expected to engage in judicial reflection on conflicting
precedents, they are rightly expected to know what the law is.
It was materially misleading to refer to Christopher Enns throughout the ito and
state that he is a cannabis activist and advocate without also stating that he has no
criminal record or findings of guilt.
It was materially misleading to not state in the ito that none of the businesses or
individuals referred to had criminal records.
It was materially misleading for the affiant or sub-affiants to refer to individuals

going into the premise as customers when there was not evidentiary basis or
observations to make this conclusion. Not even a sign was observed by the sub-
affiants at 2320 Gottingen St.
It was materially misleading to conclude that online sources of unknown credibility

or reliability were objectively sufficient to form reasonable and probably grounds of
belief that evidence of an offence would be found. It may have added to the affiant’s
suspicion that was gained upon tasking but on their own, these sources have no
credibility so how can they contribute to “any credible evidence to believe….”
In the totality of the circumstances, there was sufficient materially misleading

issues with the ito to push to the serious end of the spectrum when evaluating the
seriousness of state infringing conduct. They were not simple inadvertent errors or
technicalities. They amount to unreasonableness and negligence in the
investigation and preparation of the ito, especially given that there was no urgency.
A lack of bad faith does not result in good faith. Rocha, supra does not define
serious state infringing conduct as necessarily egregious:
[32] Giving full weight to the fact that the police made use of the warrant
procedure so that the conduct, as in R. v. Morelli, cannot be described as
egregious, there are problems with the wording of the ITOs that are so
significant as to situate the conduct here toward the serious end of the
continuum.
Further the argument above, the applicants respectfully submit that this is a case
akin to Muddei, supra where there is no credible evidence that could form the
grounds for reasonable and probably belief. Its not a near miss where the affiant
almost got there. Its not a situation where there was an informant but the tip
doesn’t quite meet the low bar of “any credible evidence.” In this case, there was
simply no credible evidence that the affiant or the Justice of Peace could have relied
on to form reasonable and probable grounds. Surely the court must distance itself
from the lack of attention to this very simple and easy to meet constitutional
standard.
Your very truly,
Christopher Enns

Garafoli, Warrants and A Successful Defense by Chris Enns

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CANADA

PROVINCE OF NOVA SCOTIA

IN THE PROVINCIAL COURT OF NOVA SCOTIA

HER MAJESTY THE QUEEN

3247317 NOVA SCOTIA LTD

CROWN BRIEF RE: GAROFOLI APPLICATION

Leonard MacKay Christopher Enns

Tel: 902-426-0965 Tel: 902-266-4769

Counsel for Her Majesty the Queen

• 50 lbs of cannabis marihuana

7. If the grounds are insufficient, should the evidence seized be excluded?

Leave to cross-examine affiant

Application of the Garofoli Standard

The Threshold Test Is Not an Onerous One

40 As discussed earlier, the Garofoli leave requirement is simply a means of

41 In some cases, the proposed cross-examination may be directed at the

42 The fact situation in Garofoli itself provides a good example of a situation

43 In other circumstances, it is the affiant’s own credibility that becomes material

4.2 The Scope of the Cross-Examination When Leave Is Granted

45 As stated in Garofoli, when leave to cross-examine is granted, “the cross-

In my view, this is a sound approach.

Preliminary issues: burdens, standards and cross-examination of the affiant

Sufficiency of the ITO

[15] Based on these principles, the reviewing judge should have

Reasonable Grounds Standard

The question as to what standard of proof must be met in order to

More recently, in Mugesera v. Canada (Minister of Citizenship &

… the “reasonable grounds to believe” standard requires something

The appropriate standard of reasonable or credibly based probability

[28] It is well established that a reasonable grounds determination involves

The inability to assess the credibility of the informant may be

Sufficiency of Grounds for Warrant in Present Case

1. the seriousness of the Charter-infringing state conduct;

2. the impact on the accused’s Charter-protected interests; and,

3. society’s interest in the case being adjudicated on its merits.

(i) A minor breach weighs in favour of admission.

(ii) A diminished expectation of privacy, e.g. commercial premises, weighs in favour

Seriousness of the Charter-infringing State Conduct

Impact of the Breach on the Charter-Protected Interests

Society’s Interest in Adjudication on the Merits

All of which is respectfully submitted,

1. Hunter v Southam Inc., [1984] 2 S.C.R. 145

HER MAJESTY THE QUEEN

APPLICANTS’ FACTUM RE: GAROFOLI APPLICATION & APPLICATION

Leonard MacKay Christopher Enns

Tel: 902-426-0965 Tel: (902)266-4769

Counsel for Her Majesty the Queen Applicant

HER MAJESTY THE QUEEN

APPLICANTS’ FACTUM RE: GAROFOLI APPLICATION & APPLICATION

PART 1: STATEMENT OF THE CASE

1. On August 1, 2020, a police raid resulted in charges against the Accused

PART 2: SUMMARY OF THE FACTS

4. The affiant and sub-affiants on the Information to Obtain a Search Warrant

• if he checked the menu on different days to determine whether it

• if The Farm Assists listing was under a subcategory for storefronts or

• if there was a telephone number or email address on the listing and

• if he contacted Weedmaps to determine who was in control of the

• the information that anyone can publish a WeedMaps listing.

16. The affiant omits whether he searched yellowpages, mapquest, canpages or

25. Based on the foregoing, it is respectfully submitted that there is insufficient

A. SECTION 8 AND REASONABLE EXPECTATION OF PRIVACY

26. The purpose of Section 8 is to protect individuals’ privacy interests. Conduct

(i) The person’s presence at the time of the search;