SEARCH WARRANT CASE LAW

TOPIC NOTES
Amplification - R v Ting, 2016 ONCA 57
 63 The role of a judge reviewing a search warrant is not to ask whether she would have granted the
warrant were she the issuing judge, but to determine whether the warrant could have been issued: see
R. v. Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.), at 1452.
 64 In doing so, the application judge may be permitted to rely on "amplification evidence", which is
additional evidence presented at the voir dire. There are limitations to the use of amplification
evidence, as set out in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at paras. 42-43:
 Amplification evidence is not a means for the police to adduce additional information so as to
retroactively authorize a search that was not initially supported by reasonable and probable grounds.
 Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice
only to correct "some minor, technical error in the drafting of their affidavit material" so as not to "put
form above substance in situations where the police had the requisite reasonable and probable grounds
and had demonstrated investigative necessity but had, in good faith, made" such errors.
Application to Cross-Examine Wiretapping and Other Electronic Surveillance: Law and Procedure (Canada Law Book: Aurora, 2019
Affiant - (a) a search warrant review has a narrow focus to determine the admissibility of relevant evidence through an
inquiry into whether there was any basis upon which the authorizing judge could be satisfied that the pre-
conditions for issuing the authorization existed
- (b) the test for leave is not onerous, but there is a narrow window for cross-examination because there is a
narrow basis upon which an authorization may be set aside
- (c) leave to cross-examine should not be given if there is no reasonable likelihood that it will impact on the
admissibility of the evidence
- (d) the content of an ITO may, on its face, be sufficient to show a basis for cross-examination; however, an
evidentiary foundation for the application independent of the affidavit is generally required.
- (e) cross-examination directed at information redacted to protect the identity of a police informer will not elicit
testimony of probative value to the issue for consideration by the reviewing judge because that information is
barred from disclosure by the police-informer privilege
- (f) cross-examination that is directed at matters peripheral to the preconditions for the authorization, or which
only marginally impact on the pre-conditions and would not alter that validity of the authorization in the
circumstances, will not elicit testimony of probative value to the issue for consideration by the reviewing judge
- (g) the showing of an inaccuracy in an information or omission of a material fact does not, of itself, provide
entitlement to cross-examine, because such a deficiency does not necessarily detract from the statutory
conditions for issuing the warrant; the deficiency must, having regard to the ITO as a whole, be relevant to a
central or foundational issue underlying the existence of reasonable grounds
- (h) cross-examination in the nature of a “fishing expedition” in order to obtain evidence that will be of
assistance in the ultimate challenge to the warrant or that is directed at the truth of the allegations in respect of
the offence, does not elicit testimony of probative value to the issue for consideration by the reviewing judge
- (i) prior unsuccessful cross-examination of the affiant on the same matter to demonstrate impropriety in
 obtaining the authorization may justify a subsequent refusal to grant leave to cross-examine
- (j) a deference standard is applied on an appeal of a trial judge’s decision to permit or deny leave to cross-
examine the affiant; the discretion of the trial judge should not be interfered with except where it has not been
judicially exercised.
- R v Victoria, 2018 ONCA 69
 72 The principles that govern motions for leave to cross-examine an ITO affiant have their genesis
in the reasons or Sopinka J. on behalf of the majority of the Supreme Court of Canada in Garofoli.
Their constitutional integrity was affirmed in R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.).
 73 It is well established that an accused against whom evidence of the results of an authorized
search or seizure are tendered for admission in a criminal trial has no unqualified right to cross-
examine the author of the material on the basis of which the search or seizure authority was granted.
Leave is required: Garofoli, at p. 1465.
 74 Whether leave should be granted to cross-examine an ITO affiant is left to the reviewing judge.
To obtain leave, an applicant must show that the proposed cross-examination will elicit testimony
tending to discredit the existence of one (or more) of the preconditions to the authorizing authority:
Garofoli, at p. 1465.
 76 The leave requirement imposed by Garofoli is neither more nor less than a means of weeding
out unnecessary proceedings on the basis that they are unlikely to assist in the determination of
relevant issues. Generally, the Garofoli test or standard for leave will allow just a narrow window for
cross-examination. This is so because there is a similarly confined basis upon which the enabling
authority can be set aside: Pires; Lising, at para. 40. Recall that the task of the reviewing judge is to
determine whether, based on the material before the authorizing judge as amplified on the review, the
authorizing judge couldhave granted the search or seizure authority: Garofoli, at p. 1452.
 77 The requirement of a nexus between the proposed cross-examination and Garofoli standard of
review means that if the proposed cross-examination is unlikely to assist the reviewing judge in
deciding whether there is a basis upon which the search authority could be granted, leave to cross-
examine should be refused: Pires; Lising, at para. 40.
 79 The Garofoli threshold for leave to cross-examine requires that an applicant show a reasonable
likelihood that cross-examination of the affiant will elicit testimony of value to the issue framed for the
reviewing judge — whether there is a basis upon which the authorizing judge or justice could have
granted the order: Pires; Lising, at paras. 3 and 40. The applicant need not show that the proposed
cross-examination will be successful in discrediting the conditions precedent for the authorization,
only that there is a reasonable likelihood that the proposed cross-examination will assist the reviewing
judge to determine a material issue: Pires; Lising, at para. 40.
 80 On the motion for leave to cross-examine the ITO affiant, the focus of the inquiry is on the
reasonableness and honesty of the affiant's belief about the existence of the requisite grounds, and not
on the ultimate accuracy of the information the affiant relies upon: R. v. Green, 2015 ONCA 579, 22
C.R. (7th) 60 (Ont. C.A.), at para. 34.
 81 A final point about motions for leave to cross-examine an ITO affiant has to do with the scope
 of appellate review of decisions on the issue. The decision to allow or refuse leave to cross-examine an
ITO affiant involves the exercise of judicial discretion. Absent an error in principle, a material
misapprehension of any evidence or an unreasonable decision, an appellate court will defer to the trial
judge: Garofoli, at p. 1465; R. v. Shivrattan, 2017 ONCA 23, 35 C.R. (7th) 143 (Ont. C.A.), at para.
55.
- R v Green, 2015 ONCA 579
 31 An accused who seeks to cross-examine the affiant of an ITO in aid of a motion to exclude
evidence obtained as a result of the execution of a search warrant must obtain leave from the trial
judge. In deciding whether to grant leave, the trial judge will have regard to various competing
interests, including the accused's right to make full answer and defence, the Crown and the court's
obligation to protect the identity of confidential informants, and the court's obligation to make
effective use of limited judicial resources by avoiding unnecessary and time-consuming proceedings.
In R. v. Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.), at p. 1465, Sopinka J. articulated an approach which
balanced those competing interests. He held that cross-examination of the affiant should be allowed
where:
 [T]he trial judge is satisfied that the 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 preconditions to the authorization,
as for example the existence of reasonable and probable grounds. [Emphasis added.]
 32 In R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.) [hereinafter Pires], the Court
confirmed the Garofoli approach in the context of a Charter challenge. Charron J. emphasized the
relatively narrow focus of the Garofoli inquiry, at para. 40:
 [T]he 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 the 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.]
 33 Garofoli and Pires were wiretap cases. However, the same approach is apposite when search
warrants are challenged: see Sadikov, at paras. 39-41; R. v. Greaves-Bissesarsingh, 2014 ONSC 4900,
314 C.C.C. (3d) 493 (Ont. S.C.J.); R. v. Daniels, 2014 ONSC 6542 (Ont. S.C.J.).
 34 Cross-examination of the affiant will be allowed when the trial judge is satisfied that there is a
reasonable likelihood that the proposed cross-examination will assist in determining whether the
 necessary grounds existed for the issuance of the search warrant. The focus is on the reasonableness
and honesty of the affiant's belief as to the existence of the requisite grounds, and not on the ultimate
accuracy of the information relied on by the affiant: Pires, at paras. 41-43; Sadikov, at para. 40.
 35 Motions to cross-examine affiants most often target specific, factual allegations in the ITO that
are central to the existence of the reasonable grounds necessary to justify the granting of the warrant.
The accused on the motion to cross-examine, either by reference to other parts of the ITO, or
extraneous evidence (often material provided by Crown disclosure) attempts to demonstrate that there
is a reasonable likelihood that cross-examination of the affiant on certain parts of the ITO will
"undermine" the grounds upon which the warrant was granted: see Pires, at paras. 68-69. Cross-
examination may "undermine" the grounds set out in the ITO either by contradicting information in the
ITO or by adding information that was not in the ITO. In either case, the honesty and/or
reasonableness of the affiant's grounds for believing that the warrant should issue are the ultimate
target of the cross-examination.
 36 Sometimes the motion to cross-examine the affiant is made on a wider basis. An accused may
argue that the ITO contains statements that are deliberately misleading and sufficiently significant to
place the credibility of the entire ITO in issue. Pires, at para. 63, holds that if there is a reasonable basis
to believe that an affiant has deliberately attempted to mislead the authorizing judge in some part of
the ITO, cross-examination should generally be allowed.
 41 Cross-examination on issues relevant to s. 24(2) goes well beyond considerations relevant to the
validity of the warrant. Cross-examination on s. 24(2) issues at a point in time when the accused has
not shown any basis upon which to challenge the validity of the warrant is at odds with the judicial
economy rationale underlying Garofoli and Pires. An expansion of the grounds upon which an affiant
may be cross-examined to include issues relevant to s. 24(2) when those issues are entirely irrelevant
to the proceedings, absent a finding that the warrant should not have been granted, is not an effective
and efficient use of judicial resources. Expanding the ambit of cross-examination of the affiant to
encompass issues relevant to s. 24(2) when there is no basis to permit cross-examination on the
validity of the warrant itself, is in reality an attempt to justify cross-examination for one purpose - to
establish grounds to exclude under s. 24(2) - in the hope that the cross-examination will uncover a
basis upon which to attack the validity of the warrant, demonstrate a breach of s. 8, and thereby make
s. 24(2) relevant. This approach seems to put the proverbial cart before the horse.
 42 While I do not accept that the potential relevance of cross-examination to s. 24(2) is a stand-
alone ground for permitting cross-examination of the affiant, I would not foreclose a trial judge from
exercising her discretion to allow cross-examination on matters relevant to s. 24(2) if the trial judge
was satisfied that there was a basis to cross-examine the affiant on matters relevant to the validity of
the warrant. Trial judges must be given wide latitude in controlling the specifics of any cross-
examination that may be allowed. Depending on the issues raised and the nature of the cross-
examination sought, it may be an effective use of judicial resources to allow cross-examination on
issues relevant to s. 24(2) at the same time as the affiant is cross-examined on matters relevant to the
validity of the warrant. In other circumstances, a trial judge may deem it appropriate to address only
the matters related to s. 8, leaving potential cross-examination on s. 24(2) to be addressed when and if

Confidential Informants
Discretion to Set Aside Otherwise
Valid Search Authority
the trial judge finds a s. 8 breach.
- R v Sadikov, 2014 ONCA 72
 39 One method of attacking the reliability of the content of the ITO is to cross-examine its author,
the affiant. An accused does not have an absolute right to cross-examine the affiant. Leave to cross-
examine is required. And leave is not granted, just for the asking: Garofoli, at p. 1465; and R. v.
Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.), at paras. 3 and 31. To obtain leave to cross-
examine the affiant, an accused must show that the proposed cross-examination will elicit testimony
that tends to discredit the existence of a pre-condition to the issuance of the warrant, as for example,
reasonable and probable grounds: Garofoli, at p. 1465; and Lising, at para. 40.
 40 The proposed cross-examination may be directed at the credibility or reliability of the affiant.
But cross-examination that can do nothing more than show that some of the information relied upon by
the affiant is false is not likely to be useful unless an applicant can raise an inference that the affiant
knew or ought to have known that the information was false: Lising, at para. 41.
 41 Refusal of leave to cross-examine the affiant removes any evidence that might have been elicited
on cross-examination from what an applicant may rely upon to attack the reliability of the content of
the ITO on a sub-facial review. The applicant remains free, however, to adduce other relevant and
material evidence, admissible on the inquiry into sub-facial validity, in an attempt to show, based on
the amplified record, that no sufficiently reliable information remains on the basis of which the warrant
could have issued: Lising, at para. 32.
- R v Merelles, 2016 ONCA 647
 26 Evidence of a tip from an informant by itself is insufficient. When assessing the reliability of a
tip from a confidential informant, the court is to consider the totality of the circumstances. The court
must look to a variety of factors including: (1) the degree of detail of the tip (including the time, place,
participants involved, and nature of the alleged activity); (2) the informant's source of knowledge
(whether it is first-hand or obtained from others); and (3) indicia of the informant's reliability such as
past performance or confirmation from other investigative sources: R. v. Garofoli, [1990] 2 S.C.R.
1421 (S.C.C.), at para. 68.
- R v Debot, [1989] 2 SCR 1140
 R. v. Debot, [1989] 2 S.C.R. 1140 (S.C.C.), at p. 1168, instructs that when information relied on comes
from a confidential informant, the court, in considering the adequacy of the information, must have
regard to: Information relevant to the credibility or reliability of the confidential informant; The
degree to which the information is compelling or cogent; and; the degree to which the confidential
informant's information is confirmed or supported in material matters by credible independent
information.
- R v Paryniuk
 62 In this province, courts, including this court, appear to have recognized a discretion to set aside a
warrant, despite the presence of reasonable and probable grounds for its issuance, where non-
disclosure was for some improper motive or to mislead the issuing judicial officer: R. v.
Colbourne (2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 40. Where an affiant has been shown to
 have deliberately provided false material statements, or to have deliberately omitted material facts
from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside.
But the threshold for setting aside the warrant in these circumstances is high: Lahaie v. Canada
(Attorney General), 2010 ONCA 516, 101 O.R. (3d) 241 (Ont. C.A.), leave to appeal refused, (2011),
[2010] S.C.C.A. No. 371 (S.C.C.), at para. 40. In at least one brief endorsement, this court has
described the conduct necessary to engage this discretion as "so subversive of the search warrant
process as to, in effect, amount to an abuse of process and require that the warrant be quashed": R. v.
Vivar, 2009 ONCA 433 (Ont. C.A.), at para. 2. See also R. v. Evans, 2014 MBCA 44, 306 Man. R.
(2d) 9 (Man. C.A.), at paras. 17, 19.
 69 What is clear, however, is that previous authority in this court has recognized a residual
discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance
where police conduct has subverted the pre-authorization process through deliberate non-disclosure,
bad faith, deliberate deception, fraudulent misrepresentation or the like: Colbourne, at para. 40; R. v.
Kesselring (2000), 145 C.C.C. (3d) 119 (Ont. C.A.), at para. 31; Lahaie, at para. 40; Vivar, at para. 2.
Courts of appeal in other provinces have reached the same conclusion: Bacon, at para. 27; Evans, at
paras. 17, 19; R. v. McElroy, 2009 SKCA 77, 337 Sask. R. 122 (Sask. C.A.), leave to appeal refused,
[2009] S.C.C.A. No. 281 (S.C.C.), at para. 30; Morris, at paras. 90, 92.
 70 These same authorities, both in Ontario and elsewhere, describe the standard to be met to invoke
this discretion as high. Indeed, some require that the conduct amount to an abuse of process: Vivar, at
para. 2; Bacon, at para. 27.
Facial Invalidity - R v Sadikov, 2014 ONCA 72
 37 A facial validity challenge requires the reviewing judge to examine the ITO and to determine
whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v.
Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), at para. 19. The record examined on a facial
review is fixed: it is the ITO, not an amplified or enlarged record: R. v. Wilson, 2011 BCCA 252, 272
C.C.C. (3d) 269 (B.C. C.A.), at para. 39
Informer Privilege - R v Crevier, 2015 ONCA 619
 48 In R. v. Leipert, [1997] 1 S.C.R. 281 (S.C.C.), at paras. 9-10, the Supreme Court explained that
"informer privilege is an ancient and hallowed protection which plays a vital role in law
enforcement ... [and] is of fundamental importance to the workings of a criminal justice system." If
police are to rely on informers and informers are to continue to supply needed information, informers
must be protected from retribution from those involved in crime.
 49 The protection of informers is broad to ensure it is adequate. This protection prevents disclosure
of "any information which might tend to identify an informer", including any information that might
implicitly reveal his or her identity: Application to proceed in camera, Re, 2007 SCC 43, [2007] 3
S.C.R. 253 (S.C.C.) [hereinafter Named Person], at para. 26 (emphasis in original). See also Leipert, at
para. 18.
 50 Informer privilege is near absolute. It admits only one exception, referred to as the "innocence at
stake" exception: Named Person, at para. 27. Importantly, "the rule does not allow an exception for the

Improperly Included/Omitted
Information
Judicial Summaries – Step 6
Knock and Announce
Production Orders
right to make full answer and defence": Named Person, at para. 28. To raise the "innocence at stake"
exception to informer privilege, the evidence must provide a basis for concluding that disclosure of the
informer's identity is necessary to demonstrate the accused's innocence. Absent "innocence at stake",
the court does not have the discretion to disclose any information that could reveal the informer's
identity: see Named Person, at para. 30.
 51 That said, the court must nonetheless uphold other principles, such as the open courts principle,
to the greatest extent possible, without disclosing the informer's identity: see e.g. Named Person, at
para. 45. In the Garofoli context, the court is thus called on to fashion a procedure that, while
protecting informer privilege, ensures the accused's right to full answer and defence is respected. This
will invariably mean that editing of the affidavit should be kept to the minimum necessary to protect
the informer's identity.
- R v Reis, 2016 ONCA 524
 87 Three points about the judicial summary are worthy of reminder.
 88 First, what is provided is a summary. By its very nature, a summary is general, not detailed. Its
predominant characteristics are conciseness and brevity. A summary eschews detail. Indeed, were a
summary to contain the last detail, it would not only exceed what is required by step six but also, in all
likelihood, breach CI privilege.
 89 Second, and despite its general nature, the summary must provide an accused with a meaningful
basis on which to challenge whether the author of the ITO made full and frank disclosure of the Debot
factors relating to the CI: Crevier, at para. 83.
 90 Third, the summary need only make the accused aware of the nature of the redacted material, not
its substance and not its details. The summary must be sufficient to allow the accused to mount a
challenge to the redacted material by argument or evidence. But recall that the judicial summary is not
the only means available to an accused to challenge the issuance of the warrant. An accused may seek
leave to cross-examine the author of the ITO, may rely on other information that has been the subject
of Crown disclosure, or may adduce other evidence: Crevier, at paras. 72, 77 and 83.
- R v Burke, 2013 ONCA 424
 41 The general rule for the execution of a search warrant on a person's home is that the police must
knock, announce their authority, and announce the reason for entry: Eccles v. Bourque (1974), [1975]
2 S.C.R. 739 (S.C.C.), at p. 747. The police are permitted to depart from the "knock and announce"
principle only in exigent circumstances, including if there is a need to prevent the destruction of
evidence, or to ensure the safety of the police or the occupants, or if in hot pursuit: Eccles, at p. 747;
and R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 (S.C.C.), at para. 20. The onus is on the police to
justify a departure from the knock and announce principle:Cornell, at para. 20.
- R v Spencer, 2014 SCC 43
 If obtaining the IP subscriber information without prior judicial authorization was the only Charter
breach, the decision of the Supreme Court in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212

Right to Full Answer and Defence
– Step 6
(S.C.C.), pointed to the admission of the evidence.
- R v Crevier, 2015 ONCA 619
 52 An accused's right to make full answer and defence is one of the principles of fundamental
justice and is constitutionally protected under s. 7 of the Charter. It includes the right to full and timely
disclosure, the right of cross-examination, the right to know the case to be met, and the right to be
given an opportunity to challenge the admissibility of the evidence tendered by the Crown: see R. v.
Rose, [1998] 3 S.C.R. 262 (S.C.C.), at para. 98; and R. v. Durette, [1994] 1 S.C.R. 469 (S.C.C.), at p.
494.
 53 Though fundamental, the right to make full answer and defence is not without limit. It is not "a
right to pursue every conceivable tactic to be used in defending oneself against criminal prosecution":
R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390 (S.C.C.), at para. 64. Precisely what an accused is
entitled to in the exercise of the right will vary depending on the context and other competing interests
at play. An accused, therefore, who is deprived of relevant information is not automatically deprived of
his or her right to make full answer and defence. Other public interests may limit the accused's ability
to access potentially relevant information. In R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.), for
instance, the Court held that the Crown's disclosure obligation is subject to a privilege exception.
 54 Some trial courts, such as in R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68 (Ont. S.C.J.),
at para. 106, have interpreted the Supreme Court's decision in R. v. Lising, 2005 SCC 66, [2005] 3
S.C.R. 343 (S.C.C.) [hereinafter Pires], as standing for the proposition that, in a Garofoli hearing, the
right to full answer and defence is "attenuated" because the hearing is one of admissibility and not a
trial on the merits.3
 55 Although I am not suggesting that cases that have referred to the right to make full answer and
defence as being "attenuated" are wrongly decided, in my view such a reference is misleading. It
suggests the right is "reduce[d in] strength, effect, or value" (Concise Oxford English Dictionary, 11th
ed., sub verbo "attenuate"), when in fact what Pires explains is that, because it is a hearing on the
admissibility of evidence, the right to full answer and defence needs to be viewed in context and
balanced against other interests: at para. 24.
 56 Pires involved a challenge to the requirement, set out in Garofoli, that an accused seek and
obtain leave to cross-examine the affiant of an ITO. It was argued this leave requirement
unconstitutionally limited the accused's right to make full answer and defence. Charron J. found the
leave requirement was justified. She stated that the extent to which the right to cross-examine is a
necessary adjunct to the right to make full answer and defence depends on the context (at para. 3), and
that at a Garofoli hearing, as at any stage in the proceeding, the right to cross-examine is limited by
relevancy. She explained, at para. 31:
 Even on the trial proper, the right to cross-examine is not unlimited. In [R. v. Lyttle, 2004 SCC 5,
[2004] 1 S.C.R. 193, at para. 44] the court reiterated the principle that counsel are "bound by the rules
of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more
generally, from putting questions whose prejudicial effect outweighs their probative value. [Emphasis
in original.]
 57 Although the right to cross-examine is central to the right to make full answer and defence, the
context of a Garofoli hearing is that it is an admissibility hearing and there are other important but
competing interests at play, including the interest of maintaining informer privilege.
 58 The Pires decision is consistent with R. v. Mills, [1999] 3 S.C.R. 668 (S.C.C.) where the
Supreme Court explained, at paras. 72 and 73, that an accused is not entitled to the most favourable
procedure that could possibly be imagined. The fairness of the trial process must be assured from the
point of view of the community as well as of the accused. Although Mills entailed a balancing between
Charter-protected rights, and informer privilege is not a Charter-protected right, I nonetheless view the
balancing contemplated in Mills as applying in the same way where informer privilege is involved. As
discussed, informer privilege is of "fundamental importance" to our system of criminal justice: Leipert,
at para. 10. Sopinka J. in Garofoli stated that, in the editing process, a balance must be struck between
the right to make full answer and defence and the interests of law enforcement, including protecting
informer privilege: at p. 1460.
 59 Leipert and Named Person make clear that the accused's right to full answer and defence does
not override informer privilege. The only exception to informer privilege is where the accused
establishes innocence is at stake. As noted earlier, it was conceded that such an exception did not arise
in the present case.
 60 As in Mills, the question is how to define the right to make full answer and defence in context.
In doing so, courts must give the fullest effect possible to the right while protecting a confidential
informer's identity: see R. v. Hunter (1987), 59 O.R. (2d) 364 (Ont. C.A.)
 70 To give effect to the right to make full answer and defence at step six, the accused must be able
to mount an effective challenge of the ITO and, in particular, challenge in argument or by evidence
whether the Debot criteria of compellability, credibility, and corroboration have been met. At the same
time, informer privilege must be protected. It could be argued that it is impossible for an accused to
meaningfully challenge whether the three Debot factors were met if the accused does not have access
to the redacted information.
 71 Step six of Garofoli, however, clearly contemplates this situation. In step six, some information
provided by or concerning the informer is not revealed to the accused but is nonetheless available to
the judge in assessing the validity of the warrant. The only caveat is that the accused must be
"sufficiently aware of the nature of the excised material to challenge it in argument or by evidence."
 72 Two aspects of this caveat are worth highlighting. One is that the accused need be aware of only
the nature of the redacted details, not the details themselves. The other is that the accused's awareness,
gained through the judicial summary and other available information, must be sufficient to allow the
accused to mount a challenge of the redacted details both in argument and by evidence. In my view,
this means an accused's attack on an ITO and the validity of a search warrant can be made on either a
facial or sub-facial basis, or both. In other words, the accused must, through the judicial summary,
cross-examination of the affiant, or the leading of evidence, be in a position to mount both a facial and
sub-facial attack on the warrant, including a challenge to those parts of the ITO that are redacted but
relied on by the trial judge.
 73 A facial challenge simply looks to whether the ITO, on its face, was sufficient to support the
warrant. The statements in the ITO are accepted as reliable and accurate, and there is a presumption
that the search warrant is facially valid, which the accused has the onus of rebutting: Québec
(Procureur général) c. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708 (S.C.C.), at para. 68. The court asks
whether, by its terms, the warrant authorized the search and seizure and whether the authorizing
justice, acting judicially, could have issued the warrant based on the contents of the ITO. See Araujo,
at paras. 19, 44; and Sadikov, at para. 37. In other words, does the ITO on its face provide sufficient
grounds for believing evidence of an offence would be found at the target address?
 74 On a sub-facial challenge, the burden likewise rests on the accused to establish the warrant's
invalidity. A sub-facial challenge, however, goes behind the ITO "to attack the reliability of its
content": Araujo, at para. 50. Any errors and inaccuracies in the ITO are excised, but can be amplified
by evidence as long as the errors or inaccuracies were made in good faith. In determining the sub-
facial validity of a warrant, the reviewing judge inquires into whether, based on the record as amplified
on review, "there was at least some evidence that might reasonably be believed on the basis of which
the authorization could have issued" (Araujo, at para. 51). An accused might, for instance, challenge
the credibility and reliability of the ITO affiant through cross-examination. This could serve to
undermine the reliability of the affiant's statements in the ITO, including the information attributed to
the confidential informer: see e.g. R. v. Brown, 2013 ONSC 2848, 282 C.R.R. (2d) 220 (Ont. S.C.J.),
at para. 115.
 75 An accused might also argue, for example, that statements in the ITO describing police
observations of hand-to-hand drug transactions between the accused and others are inaccurate because
of evidence led showing that the accused was in another jurisdiction at the time these observations
were allegedly made. Such inaccurate statements would be excised and would not be considered in
determining whether the warrant could have issued. The Crown, however, may be able to amplify the
record by introducing evidence that police made the observations on a different date and that the ITO
affiant, acting in good faith, mistakenly provided the wrong date in the ITO.
 76 As mentioned, however, at step six, the very details about the confidential informer that satisfied
the Debot requirements are often contained in the redacted portions of the ITO. How then can an
accused mount a sub-facial attack to challenge whether the redacted details are compelling, credible
and corroborated? Such an attack is possible although the information on which the attack is based
must be tailored so as not to breach informer privilege, which is near absolute. In other words, an
accused is not precluded from launching a sub-facial attack at step six; he or she is simply precluded
from accessing the redacted portions of the ITO beyond the description of their general nature set out
in the judicial summary.
 77 Despite not having access to the redacted information, the accused, using a well-crafted judicial
summary as well as the disclosure received, the redacted ITO, and any cross-examination of the affiant
and evidence tendered, will nonetheless be in a position to mount a sub-facial attack and challenge the
adequacy of the ITO. The accused can, for example, highlight areas of omission for the reviewing
court, attack the steps (or lack thereof) taken to corroborate the information received from the
informer, and make arguments in the alternative and on general principles of informer reliability.
  78 The precise contours of the challenge will vary in each case. For example, if the judicial
summary reveals that the authorizing justice was not informed of a confidential informer's criminal
record and motivation for speaking to police, if any, the accused could argue there was insufficient
information about the credibility of the informer to justify the warrant's issuance. The challenge could
be strengthened if the accused cross-examined the affiant to establish either that he never enquired as
to the criminal record and motivation or, if he had the information, he withheld it from the authorizing
justice. See for example R. v. Green, 2015 ONCA 579 (Ont. C.A.).
 79 Another example is where a confidential informer tells police he or she participated in hand-to-
hand drug transactions with an accused on certain dates and although the specific dates are redacted,
the month in which it is said to have occurred is contained in the summary. There, a sub-facial
challenge may take the form of the accused's leading evidence showing that he or she was in custody
on other charges during a certain timeframe and the police knew or ought to have known this was the
case; the trial judge would be able to determine whether that timeframe overlaps with the redacted
dates.
 80 The above helps clarify why the accused's inability to access the redacted details of what the
informer told police does not necessarily prevent the accused from meaningfully challenging the
warrant's sub-facial validity. Knowledge of these details may not be required to prove by argument or
evidence that police knew or should have known the informer's tips were false or unreliable, or that
police took inadequate steps to corroborate the informer's tips. Furthermore, awareness of the general
nature of the redactions, provided by a judicial summary, meaningfully assists the accused by
providing a basis for challenging whether the Debot criteria had been met.
 81 Clearly, a well-crafted judicial summary is essential if the accused is to be in a position to mount
a sub-facial attack and exercise his or her right to make full answer and defence. The adequacy of the
summary, therefore, plays a key role in the court's assessment of whether the accused is sufficiently
aware of the nature of the redacted information so that step six can be employed.
-
Report to a Justice - R v Tsekouras, 2017 ONCA 290
 95 Section 489.1(1) applies to seizures made by peace officers as a result of searches incident to
arrest: R. v. Backhouse (2005), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 112-113. Where the thing
seized is not being returned to the person lawfully entitled to possess it, s. 489.1(1)(b)(ii) requires the
seizing officer, as soon as it is practicable to do so, to report to a justice that she or he has seized
something and is detaining it to be dealt with by the justice under s. 490(1).
 96 The Report to a Justice must be in a statutory form — Form 5.2. This form must describe the
authority under which the seizure was made; the thing that was seized; and where, how or where
applicable by whom it is being detained. The officer who files the report must date and sign it.
 97 The reporting requirement of s. 489.1(1)(b)(ii) provides a link to s. 490(1) and ensures long-term
post-seizure supervision of the things seized by a judicial officer: R. v. Garcia-Machado, 2015 ONCA
569, 327 C.C.C. (3d) 215 (Ont. C.A.), at paras. 15-16; Backhouse, at para. 112.
 98 Failure to file a Report to a Justice in Form 5.2 means that no post-seizure supervision of the
 thing seized will take place: Garcia-Machado, at para. 16. But failure to file a Report to a Justice as
soon as practicable after a thing has been seized also has a constitutional dimension: the continued
detention constitutes a breach of s. 8 of the Charter: Garcia-Machado, at paras. 44-48.
- R v Garcia-Machado, 2015 ONCA 569
 13 Section 489.1(1) provides as follows:
 489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything
under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of
duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,
 (a) where the peace officer is satisfied,
 (i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and
 (ii) that the continued detention of the thing seized is not required for the purposes of any investigation
or a preliminary inquiry, trial or other proceeding,
 return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its
possession and report to the justice who issued the warrant or some other justice for the same territorial
division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has
done so; or
 (b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),
 (i) bring the thing seized before the justice referred to in paragraph (a), or
 (ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained
 to be dealt with by the justice in accordance with subsection 490(1).
 [Emphasis added.]
 14 Section 489.1(1) applies to both warrantless common law seizures and seizures pursuant to a
warrant: R. v. Backhouse (2005), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 113, 115.
 15 Importantly, s. 489.1(1) is the gateway to s. 490. As Rosenberg J.A. explained in Backhouse, at
para. 112:
 Section 490 provides that where things have been brought before a justice or a report made to a justice
in respect of anything seized under s. 489.1, there is an obligation on the justice to supervise its
detention. The section also sets out an elaborate scheme to facilitate the return of items seized to their
lawful owners.
 16 If a peace officer fails to file a report under s. 489.1(1), the property seized is not subject to
judicial supervision during the investigation under s. 490. The real importance of s. 489.1(1) is its link
to s. 490.
 17 In R. v. Raponi, 2004 SCC 50, [2004] 3 S.C.R. 35 (S.C.C.), at para. 28, McLachlin C.J.C.
described s. 490 as "purporting to provide a complete scheme for dealing with property seized in
connection with crime". Section 490 is lengthy. To provide context for my analysis below, I outline
some of its principal provisions, although in very broad terms. The interpretation of these provisions is
not at issue on this appeal.
 18 Under s. 490(1), the justice to whom a report is made under s. 489.1(1)(b) is required to order
the return of the property to the lawful owner or a person lawfully entitled to possession of the item
 unless the justice is satisfied that detention of the item is required "for the purposes of any
investigation or a preliminary inquiry, trial or other proceeding." In that case, the justice may order the
item detained for up to three months.
 19 Under ss. 490(2) and (3), if the justice is satisfied that, "having regard to the nature of the
investigation", the detention of the item for a further period is warranted, the justice may extend the
detention for successive periods, but not for more than a year in total. Importantly, notice of each
application to the justice for further detention must be given to the person from whom the thing
detained was seized.
 20 Section 490(3) requires an order from a judge of a superior court1 to detain the item for more
than a year, unless proceedings have been instituted in which the thing detained may be required.
 21 Section 490(4) provides that if the accused is ordered to stand trial, the justice is required to
forward anything detained to the clerk of the court.
 22 Sections 490(7) and (8) permit the person from whom the item has been seized to apply for the
return of the item seized after the expiry of the detention period or, in the case of hardship, before the
expiry of the detention period.
 23 Section 490(10) permits a person (other than the person from whom the item was seized) who
claims to be the lawful owner or a person lawfully entitled to possession of the thing seized to apply
for an order to return the thing.
 24 Section 490(13) permits the Attorney General, the prosecutor, the peace officer, or other person
having custody of a document to make and retain a copy of the document before bringing it before a
justice or returning it to a person.
 39 Section 8 of the Charter provides that: "Everyone has the right to be secure against unreasonable
search or seizure." Section 8 of the Charter protects an individual's reasonable expectation of privacy:
R. v. Dore (2002), 166 C.C.C. (3d) 225 (Ont. C.A.), at para. 42.
 40 In Colarusso, at pp. 61, 63-64, the Supreme Court of Canada made it clear that s. 8 continues to
apply to protect a person's privacy rights in seized items during detention of those seized items.
 41 In that case, a coroner, acting under the Coroners Act, R.S.O. 1980, c. 93, seized a driver's blood
and urine samples from a hospital in order to decide whether to hold an inquest into a death. The police
eventually took the evidence to use against the driver in a criminal proceeding. The Supreme Court
concluded that the seizure, which was reasonable as long as the coroner seized the evidence, was
unreasonable from the point at which the police took the evidence. At para. 91, La Forest J., writing
for the majority, said this:
 [I]t must be understood that the protection against unreasonable seizure is not addressed to the mere
fact of taking. Indeed, in many cases, this is the lesser evil. Protection aimed solely at the physical act
of taking would undoubtedly protect things, but would play a limited role in protecting the privacy of
the individual which is what s. 8 is aimed at, and that provision, Hunter [v. Southam Inc., [1984] 2
S.C.R. 145] tells us, must be liberally and purposively interpreted to accomplish that end. The matter
seized thus remains under the protective mantle of s. 8 so long as the seizure continues.
 [Emphasis added.]
 42 To the extent this court's decision in Church of Scientology held that s. 8 of the Charter does not
apply to the act of detention, it was overtaken by Colarusso.
 43 This court has already determined that detention of property in breach of s. 489.1(1) is unlawful:
Backhouse, at para. 115. However, as Rosenberg J.A., writing for the court, added at para. 115:
 It does not necessarily follow, however, that the continued unlawful detention violated the appellant's
Charter rights. The initial search and seizure was lawful and complied with the Charter. I need not
decide whether the subsequent failure to comply with s. 489.1 could render the initial lawful seizure
unreasonable. However, see Re Church of Scientology et al. and the Queen. (No. 6) (1987), 31 C.C.C.
(3d) 449 (Ont. C.A.) at 543-547.5 Even if the detention of the clothing did violate the appellant's rights
under s. 8, I would not exclude the evidence obtained by the analysis of the appellant's jacket.
 44 The question on this appeal is whether the Constable's failure to comply with the requirements in
s. 489.1(1) to make a report to a justice as soon as practicable also rendered the continued detention of
a seized item unreasonable and therefore contrary to s. 8 of the Charter.
 45 I conclude that the answer to that question is "yes". As I have explained, it is clear that an
individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and
that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490
govern the continued detention by the state of the items seized and, I conclude, the requirement in s.
489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests. The
Constable's post-taking violation of s. 489.1(1) by failing to report to a justice for more than three
months after seizure of the blood and hospital records compromised judicial oversight of state-detained
property in which the appellant had a residual privacy interest. It therefore rendered the continued
detention unreasonable and breached s. 8. The fact that a person may have a diminished reasonable
expectation of privacy after a lawful, initial police seizure and that in a particular case there may have
been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of
the Charter. However, they will not render continued detention after a clear violation of the
requirement in s. 489.1(1) to report to a justice as soon as practicable reasonable.
 46 It is established law that in order to be reasonable, a seizure must be authorized by law: R. v.
Collins, [1987] 1 S.C.R. 265 (S.C.C.), at p. 278; R. v. Caslake, [1998] 1 S.C.R. 51 (S.C.C.), at para.
10. If seized property is detained without complying with s. 489.1(1), then its continued detention is
not authorized by law: Backhouse, at para. 115.
 47 Although one could conceive of provisions governing retention that would not relate to the
protection of privacy, ss. 489.1(1) and 490 were enacted to "regulate state activity that interferes with
privacy interests", as Rosenberg J.A. explained in Backhouse, at para. 110:
 Although s. 489.1 was an early enactment after proclamation of the Charter it reflects Charter values
and principles. It favours judicial supervision. It is part of a scheme that includes s. 490 and that is
designed to regulate state activity that interferes with privacy interests.
 [Emphasis added.]
 48 As I explain below, the requirement in s. 489.1(1) to report to a justice as soon as practicable
plays a role in protecting an individual's residual, post-taking reasonable expectation of privacy. I
 therefore conclude that the Constable's clear failure to comply with that obligation breached s. 8.
 49 One indicator of the privacy-related role of s. 489.1(1) is the fact that the form of the warrant
authorizing the initial seizure required the peace officer to comply with s. 489.1(1) ("[T]his is to
authorize and require you... to bring [the seized things] before me or some other justice to be dealt with
according to law").
 50 A second indicator is the substance of the provision itself. Section 489.1(1) requires a peace
officer who wishes to detain a thing seized to bring the thing before a justice or report to a justice that
he or she has seized the thing. It engages judicial oversight of state-held property in which privacy
interests subsist. It also ensures that a record is made of what was actually seized. Such a record may
be critical if a person seeks to assert that the initial seizure was overly broad or that the state does not
need the item seized for its investigation.
 51 A third indicator of the role of s. 489.1(1) is the nature of the rights s. 490 provides to
individuals whose property has been taken. Two aspects of that section are particularly important.
 52 First, s. 490(2) requires the state to give notice to the person from whom the detained thing was
seized if the state wishes to obtain an extension beyond the initial three-month detention period. Notice
gives the affected person the opportunity to argue that the nature of the investigation does not warrant
further detention of the item seized. If the state does not need the item for the purpose envisaged when
it seized it, and the state's continued detention of the property is not otherwise legally justified,6 the
individual's privacy interest should prevail. Moreover, notice under s. 490(2) may be the only way an
affected individual learns exactly which items the state has taken. For example, as the result of a peace
officer's failure to make a return on the warrants, the defendants in Guiller were not fully apprised of
what was seized until the items were introduced at trial.
 53 In R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531 (S.C.C.), the Supreme Court highlighted the
importance of notice where privacy is at issue. Section 184.4 of the Code (the emergency intercept
provisions) did not provide after-the-fact notice to individuals whose communications the police had
intercepted without prior judicial authorization. The court held, at para. 85, that s. 184.4 violated s. 8
because it did not include post-intercept notice or any other specific mechanism to permit supervision
of police intercept activity. Moldaver and Karakatsanis JJ., writing for the court, adopted this
statement, at para. 83: "The right to privacy implies not just freedom from unreasonable search and
seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful
remedy." Although made in a different context, this comment is apposite. Notice under s. 490(2) may
provide an affected individual with the ability to challenge the necessity of the continued detention of
items seized.
 54 A second important aspect of s. 490 is that it provides the lawful owner of the item seized, a
person lawfully entitled to possession of the item seized, or the person from whom the item was seized
the right to apply for return of the item - the meaningful remedy that Tse adverts to. Return of the
seized items reduces or eliminates the risk that the state will violate the person's residual privacy
interest. As Rosenberg J.A. noted, at para. 113 of Backhouse, s. 490's relatively summary procedure is
much preferable to a more cumbersome and expensive replevin action in civil court.
 55 The recording of the items seized, the right to notice and the right to apply for return of things

Section 10(b) Opportunity after
Warrant Executed
Search Warrant Review –
Garofoli Applications
seized confer important protections on people whose items the state holds in detention. Compliance
with s. 489.1(1) is the gateway to all of these protections. The appellant failed to report to a justice for
over three months after the blood and hospital records were seized. Effective judicial oversight of
property in which the appellant maintained a residual privacy interest was compromised. I conclude
therefore that the Constable's clear failure to comply with the requirement in s. 489.1(1) that he report
to a justice as soon as practicable breached s. 8 of the Charter. I leave for another day whether any
other breach of s. 489.1(1) or any breach of s. 490 - even if so minor or technical as to have no real
impact on the judicial oversight contemplated by the sections - would breach s. 8 of the Charter.
-
- R v Paryniuk, 2017 ONCA 87
 42 A trial judge who has to determine whether a search was authorized by law must decide whether
the conditions precedent to the search authority on which reliance is placed have been satisfied. To do
this, the trial judge conducts a hearing — a Garofoli application. At that hearing, the judge examines
the material before the authorizing judge or justice, material which may differ from the original
because portions have been redacted, for example, to protect confidential informer privilege. Evidence
at the Garofoli hearing may persuade the trial judge that parts of the original material should be
excised or amplified. In the end, the record becomes fixed for review purposes.
 43 What the trial judge is required to decide on the Garofoli application is whether, based on the
record before the authorizing judge or justice, as amplified on the Garofoli review, the authorizing
judge could have granted the enabling order: Garofoli, at p. 1452. The judge must decide whether,
after excision and amplification, there was reliable evidence which might reasonably be believed on
the basis of which the search authority could have been issued: Araujo, at paras. 51, 54; R. v.
Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549 (S.C.C.), at para. 14; R. v. Morelli, 2010 SCC 8, [2010]
1 S.C.R. 253 (S.C.C.), at para. 40. The onus of establishing that the search authority was improvidently
granted rests upon the accused: Campbell, at para. 14; Morelli, at para. 131; Québec (Procureur
général) c. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708 (S.C.C.), at para. 68.
 44 Prior to Garofoli, fraud, non-disclosure, misleading evidence and new evidence were
prerequisites to review of the enabling order: Garofoli, at p. 1452. But thereafter, the "sole impact" of
the same things was to determine whether there remained any basis for the decision of the authorizing
judge or justice: Garofoli, at p. 1452. See also Araujo, at para. 51; Bisson, at p. 1098.
 45 The assessment required by Garofoli is contextual. What is involved is an analysis to determine
whether there remains sufficient reliable information upon which the search authority could be
grounded. This approach appropriately balances the need for judicial finality and the need to protect
systems of pre-authorization: Araujo, at para. 54. In this analysis, facts originally omitted are also
considered: Morelli, at para. 60.
 46 Essential features of the Garofoli application are excision and amplification. Erroneous
information is excised from the ITO and disregarded in determining whether the essential evidentiary
predicate remains: Araujo, at para. 58; Campbell, at para. 14; Morelli, at para. 41. But errors made in
good faith may be corrected by amplification through the introduction of evidence that was available

Statutory Requirement to Bring
Warrant and Produce it upon
Request
Step 6 Garofoli
when the ITO was prepared: Morelli, at paras. 41-43.
 47 A final point concerns the standard against which alleged errors or omissions in the ITO are
tested. The affiant's assertions are tested against the affiant's reasonable belief at the time the ITO was
composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, 2016 SCC 15,
[2016] 1 S.C.R. 207 (S.C.C.), at para. 122.
- R v Sadikov, 2014 ONCA 72 at paras 83-84, 89
 1) Warrant review begins from a premise of presumed validity. The onus of establishing invalidity
falls on the person who asserts it.
 2) The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte
application. The reviewing judge does not substitute his or her view for that of the issuing judge.
 3) The standard is whether there is sufficient credible and reliable evidence to permit a justice to find
reasonable and probable grounds to believe that an offence has been committed and that evidence of
that offence would be found at the specified time and place of search. Was there reliable evidence that
might reasonably be believed on the basis of which the warrant could have issued?
 4) An appellate court owes deference to the findings of the reviewing judge in his or her assessment of
the record. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant
evidence, an appellate court should decline to interfere with the reviewing judge's decision.
- Section 29 (1) of the Criminal Code - It is the duty of every one who executes a process or warrant to have it
with him, where it is feasible to do so, and to produce it when requested to do so.
-
- R v Herta, 2018 ONCA 927
 20 The question for a reviewing court is not whether the court would have issued the warrant or
authorization, but whether it was open to the issuing justice to have done so. In a case like this,
involving a s. 487 warrant, the question is whether there are reasonable grounds to believe —
constitutionally defined as credibly-based probability — that there is evidence respecting the
commission of an offence in the location to be searched: Canada (Director of Investigation &
Research, Combines Investigation Branch) v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.), at pp. 167-
8. Credibly-based probability exceeds suspicion, but falls short of a balance of probabilities: R. v.
Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421 (Ont. C.A.), at para. 81.
 21 In reviewing the ITO for sufficiency, the trial judge was required to take a common-sense and
holistic approach. The ultimate question was whether the issuing justice could have found that the
content of the ITO in its redacted form, and the reasonable inferences that could be taken from it, gave
rise to a credibly-based probability that Callahan had taken a gun into 1670 Clover Avenue: R. v.
Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.), at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992
(S.C.C.), at para. 51; Sadikov, at para. 37. The answer to that question was squarely rooted in the
strength of the CI information.
 22 The trial Crown was duty bound to protect the CI's identity. Accordingly, the Crown was
obliged to redact anything that might have served to identify the CI. There is no dispute in this case
over the extent of the redactions made.
  23 Garofoli sets out a six-step process for reviewing redacted wiretap affidavits, but those steps
apply with equal force to search warrants. Where redactions have been made to the grounds for belief,
step five of this process allows the Crown to attempt to support the search warrant on the basis of the
material as redacted. If successful, the authorization or search warrant will be confirmed. Where the
redactions are so broad that the remaining information cannot support the search warrant, then step six
allows the Crown to request the reviewing judge to consider "so much of the excised material as is
necessary to support the authorization": Garofoli, at pp. 1460-1461.
 24 As the defence cannot see the redacted information, to the extent possible, a judicial summary
(typically first drafted by the Crown) will be provided to the accused so that he or she can be made
aware of the "nature of the excised material": Garofoli, at p. 1461; R. v. Rocha, 2012 ONCA 707, 292
C.C.C. (3d) 325 (Ont. C.A.), at paras. 55-57; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305
(Ont. C.A.), at paras. 41-47, 83, 97.
 25 Undoubtedly, invoking step six can be both complex and time-consuming. Efficiency and
economy demand that careful thought be given in each case to whether it is necessary to proceed on
that basis. Where CI information is peripheral or superfluous to the grounds for belief, it will often be
unnecessary to resort to step six. Where, though, the CI information is central to the grounds for belief,
step six may have to be invoked in order to answer whether the warrant could have issued.
- R v Reid, 2016 ONCA 524
 86 Step six adopts a quid pro quo approach to this balancing process. This involves, on the one
hand, permitting the Crown to rely upon the unredacted ITO, which has not been disclosed to the
defence, to support the issuance of the warrant. And on the other hand, permitting the defence to
challenge the issuance of the warrant, and thus the reasonableness of the search, on the basis of the
redacted ITO and a judicial summary of the nature of the redacted material. The Crown may only
invoke step six, however, where the summary makes the accused sufficiently aware of the nature of the
excised material to challenge it in argument or by evidence: Crevier, at para. 43; Garofoli, at p. 1461.
A summary that fails to meet this standard disentitles the Crown to rely on the unredacted ITO to
sustain the issuance of the warrant as the enabling search authority.
- R v Crevier, 2015 ONCA 619
 41 In Garofoli, in the context of a challenge to a wiretap authorization, Sopinka J. set out a non-
exclusive and non-exhaustive procedure to be followed when editing the materials in the sealed packet
containing the affidavits on which the authorization was granted. This procedure has been determined
to also apply to search warrants: see e.g. R. v. Blake, 2010 ONCA 1, 257 O.A.C. 346 (Ont. C.A.), at
para. 15; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742 (Ont. C.A.). Although the six steps were
set out earlier in these reasons, I will repeat steps five and six here for convenience. They are as
follows:
 5. If the Crown can support the authorization on the basis of the material as edited, the authorization is
confirmed.
 6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have
the trial judge consider so much of the excised material as is necessary to support the authorization.
The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of
 the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial
summary of the excised material should be provided if it will fulfill that function. It goes without
saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public
interest will be prejudiced, it can withdraw tender of the wiretap evidence.
 42 When applying the sixth step, the objective is a balancing of conflicting interests. On the one
hand are the interests of law enforcement and the protection of informers, and on the other is the
accused's right to make full answer and defence: see Garofoli, at p. 1458. Step six allows the Crown to
rely on the unredacted ITO in defending the warrant's validity, provided adequate steps are taken to
preserve the accused's right to make full answer and defence. Step six provides the Crown with another
option where it would otherwise have to concede a s. 8 breach because the warrant's ITO, after
redactions are made to protect a confidential informer's identity, does not disclose reasonable and
probable grounds.
 43 Garofoli explains that a judge can accede to a Crown request to proceed to step six as long as the
accused is "sufficiently aware of the nature of the excised material to challenge it in argument or by
evidence." Put another way, the judicial summary of the redacted material provided to the accused,
combined with the redacted ITO, must be enough to ensure the accused is in a position to exercise his
or her right to make full answer and defence. Only then can step six be employed. In assessing the
summary's sufficiency, however, account is to be taken of the fact that the accused has received
disclosure, that he or she can, with leave, cross-examine the affiant, and that he or she can lead
evidence on the application. And, as I will explain, the right to make full answer and defence is to be
assessed taking into account that a Garofoli hearing is an admissibility hearing, not a trial on the
merits.
 45 The Garofoli hearing is a process that assists in this respect. Step six of the process allows the
court to meaningfully assess the ITO as it was prepared by the affiant and presented to the authorizing
judicial officer, without redaction, in order to determine the accused's claim that it did not meet the
statutory requirement of reasonable and probable grounds for the issuance of a warrant.
 46 When an ITO references information from and about a confidential informer and step six of
Garofoli is not engaged, the reviewing court is deprived of the opportunity to examine the full,
unredacted ITO in reaching its decision. As a result, the court may be forced to artificially determine,
based on an incomplete picture, that the warrant could not have issued, even though it very well could
have issued based on the complete picture that was before the issuing justice. The affiant police officer
may have carefully prepared a detailed and thorough ITO that met the statutory requirements, setting
out reasonable and probable grounds for the search and addressing the three Debot criteria for
assessing the reliability of informer tips. But the search will nonetheless be found to have violated the
accused's Charter rights because the reviewing court is prevented from relying on the redacted portions
of the ITO. Similarly, the issuing justice may have carefully assessed the sufficiency of the ITO before
authorizing the issuance of the warrant and correctly concluded that the ITO was adequate, but will
nonetheless be found to have erred because the reviewing court cannot rely on the redacted portions of
the ITO. See Rocha, at paras. 49-50.
 47 Provided the accused's right to full answer and defence is protected, an otherwise sufficient ITO
 should not, therefore, be found inadequate simply because of redactions made to preserve informer
privilege. This would frustrate the utility of many search warrants and the interest of law enforcement.
 62 As I have explained, it is important to place the right to full answer and defence and its exercise
in context. Five aspects of the step six context are of particular import.
 63 First, an accused, in challenging the warrant's validity and making full answer and defence, has
more than just the judicial summary and redacted ITO in his or her possession. An accused will also
have all material in the possession or control of the Crown that is potentially relevant to the case,
subject to privilege, as per the Stinchcombe disclosure requirements and may also have third party
disclosure materials. Further, in some cases, the accused will have cross-examined the affiant and
elicited evidence from that cross-examination that will assist in formulating an attack on the warrant's
validity. The accused may also have chosen to lead evidence.
 64 Second, it should be recalled that the Garofoli hearing is a pretrial, threshold evidentiary hearing
challenging the validity of an evidence-gathering tool. It is not a trial on the merits where guilt or
innocence is at stake. It involves an inquiry into whether there was any basis on which the authorizing
judge could be satisfied that the relevant pre-conditions to issuing an authorization or warrant existed.
As explained in R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357 (Ont. C.A.), at para. 86, citing R. v.
Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721 (Ont. C.A.), at para. 21, leave to appeal to SCC refused,
[2010] S.C.C.A. No. 84 (S.C.C.), "[w]arrant review is an integral part — a first step — in an inquiry
into admissibility of evidence proposed for reception. It is not a trial and must not take on the trappings
of a trial in which the truth of the allegations contained in the indictment is explored."
 65 Third, although it may be germane, the ultimate issue is not the truth of a confidential informer's
tips on a sub-facial warrant challenge. The fact that an informer provided inaccurate or false
information to police will be relevant only to the extent the ITO affiant knew or should have known it
was false, because then one of the preconditions for issuing the warrant would not have been met:
reasonable belief in the existence of the necessary statutory grounds. In Pires, Charron J. explains as
follows, at para. 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.
 [Emphasis added.]
 66 Fourth, a warrant is presumptively valid: see Pires, at para. 30; and R. v. Campbell, 2010 ONCA
588, 261 C.C.C. (3d) 1 (Ont. C.A.), at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549 (S.C.C.). The
party challenging the validity of a warrant bears the onus of demonstrating it was not validly issued.
Therefore, the issue on a Garofoli hearing is whether the minimum standard required for authorizing a
search and seizure was established in the ITO. That standard is reasonable and probable grounds to
 believe that an offence has been committed and that there is evidence to be found at the place of the
search: see Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam
Inc., [1984] 2 S.C.R. 145 (S.C.C.), at p. 168.
 67 Finally, the Garofoli process is followed in cases where the reasonable grounds justifying the
search originate, at least in part, from information provided by a confidential informer and where the
informer's identity must be protected. Because reliance is placed on the information received from the
informer, the reliability of that informer and information is important and must be assessed. As
explained by the Supreme Court in Debot, where a confidential informer's tip is relied on in support of
a search warrant, the tip must not only be compelling, it must come from a credible source and be
corroborated by police investigation. These three factors are assessed on a totality of circumstances,
keeping in mind that weaknesses in one factor may, to some extent, be compensated by strengths in the
other two factors.
 68 An ITO affiant must, therefore, include details about the confidential informer's reliability and
what makes the tip compelling to satisfy the Debot factors. The ITO affiant must also include details
unfavourable to the informer, as part of the affiant's duty to make full and frank disclosure: see R. v.
Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at para. 58; and R. v. Araujo, 2000 SCC 65,
[2000] 2 S.C.R. 992 (S.C.C.), at para. 46. Yet, the above details will often risk identifying the informer
and will thus be redacted on warrant review, even though they are potentially the most persuasive
portions of the ITO.
 82 I turn now to how a court is to assess whether the judicial summary is sufficient to ensure that
the right of full answer and defence, including the possibility of a sub-facial challenge, is protected
such that the court can accede to the Crown's request to have the trial judge consider the redacted
material.
 83 First, the reviewing judge must carefully prepare a judicial summary or carefully review the
proposed judicial summary prepared by the Crown. Although Garofoli sets out that a "judicial
summary" must be provided to the accused, in practice the Crown prepares a proposed judicial
summary for the trial judge to approve, if satisfied it is sufficient. In either preparing the summary or
approving the Crown's proposed summary, the trial judge must be satisfied that the summary includes
as much information as is possible to allow the accused to mount both a facial and a sub-facial attack
on the ITO while nonetheless ensuring that informer privilege is maintained. This means the summary
must provide the accused with a meaningful basis upon which to challenge whether the affiant made
full and frank disclosure regarding the reliability of the informer and his or her tips, as required by
Debot. The context, however, will always be one where the summary will never be a complete
substitute for full disclosure, given the need to protect informer privilege.
 84 In carrying out this review, the judge should keep in mind that the right of full answer and
defence includes the right to know the basis on which the search warrant was granted, as this is needed
to challenge the admissibility of the seized evidence: see Durette, at para. 41. The judicial summary
should, therefore, provide the accused with sufficient information to evaluate whether the
preconditions for issuing the warrant were met. Since confidential informers are involved, this would
naturally include information that speaks to the three Debot factors: whether the information was
 compelling and corroborated, and whether the informer was credible. In preparing or approving the
summary, the trial judge should consider whether the summary ought to indicate that the redacted
material includes the following types of information, to the extent they are relevant and will not risk
revealing the identity of the confidential informer. What will be contained in the summary will vary
from case to case. The list is illustrative only; it is neither prescriptive nor exhaustive:
 • The source of the informer's information (first-hand, hearsay, and if hearsay, the source of that
hearsay)
 • The informer's relationship with/to the accused and how they first came into contact
 • The length of time the informer has known the accused and the frequency of contact between them
 • Whether the informer has previously provided information to police
 • Whether previous information provided (if any) has led to arrests, seizures, or convictions
 • Whether past information provided by the informer has ever been proven unreliable or false
 • Whether the informer has a criminal record and, if yes, whether the unredacted ITO includes details
of the convictions or charges or whether a copy of the criminal record was appended
 • Whether the informer has convictions for offences of dishonesty or against the administration of
justice
 • The informer's motivation for speaking to police, including whether consideration was sought or
arranged
 • Whether the informer was instructed on the penalties for giving false information
 • Whether descriptions provided by the informer match the accused or the target location
 • The degree of detail of the information that the informer provided to police
 • The recency or timing of the information that the informer provided to police
 • Any discrepancies between the information of one informer and another
 • Any aspects of the informer's information that are contradicted by police investigation or otherwise
detract from its credibility
 • Any errors or inaccuracies that exist in the ITO, and their nature (e.g. typographical errors)
 I do not suggest that the failure to include one or more of these points will necessarily make the
summary inadequate. A sufficient summary should let the accused know the nature of the information
behind the redactions, provided this would not breach informer privilege. He or she should know what
went into the ITO and what did not. Possessing this information will allow the accused to
meaningfully argue whether the information contained in the ITO is sufficient to meet the Debot
criteria.
 85 Where possible the summary should track the redactions in the ITO. That is, the judicial
summary should inform the accused not only of what was redacted but also where in the ITO the
redacted information is contained. As well, the judicial summary should say if the nature of a redaction
in a specific paragraph of the ITO cannot be summarized.
 86 If prior to proceeding to step six of Garofoli the reviewing judge has already ruled that the
accused would not be allowed to cross-examine the affiant, the reviewing judge should be open to
reconsidering this ruling once the judicial summary is provided to the accused. Similarly, if cross-
 examination of the affiant already occurred, the reviewing judge could consider whether the accused
should be allowed to recall the affiant for further cross-examination.
 87 The reviewing judge exercises a gatekeeping function and must ensure the judicial summary
strikes the appropriate balance. To the extent that the summary makes the accused sufficiently aware
of the nature of only some of the redacted information so as to be able challenge it in argument or by
evidence, the judge should, when assessing the validity of the warrant, disregard those redacted
portions the nature of which could not be summarized and provided to the accused.
 88 Once the reviewing judge has determined that the accused is sufficiently aware of the nature of
some or all of the redacted information, he or she can then assess the adequacy of the ITO with the
help of that information. This assessment must be made in context. This context includes the fact that
the accused could not directly challenge those portions of the ITO that were redacted and that support
the warrant's issuance. The judge will consider the extent to which the accused's inability to directly
challenge the redacted portions should affect the weight to be given to those portions. The exercise
here is somewhat akin to the admission of testimony that is not subject to complete and full cross-
examination because of a witness's intervening illness or death (R. v. Cameron (2006), 208 C.C.C. (3d)
481 (Ont. C.A.), at paras. 36-37). In those cases, the lack of testing by cross-examination is taken into
account in weighing what is otherwise admissible evidence. Similarly, in assessing the weight to be
given to the redacted information, the reviewing judge should consider the nature of the information,
the extent to which the judicial summary allowed the accused to challenge it, and whether its nature is
such that it was susceptible to being challenged by cross-examination or otherwise.
 (5) Summary of the Garofoli step six procedure
 89 Step six of Garofoli is an exceptional procedure, in that the trial judge sees and relies on
information that has not been disclosed to the accused because of the need to protect informer
privilege. This procedure arises in the pre-trial process, which does not go directly to the accused's
guilt or innocence. Yet, in many cases, the outcome of the challenge to the warrant will dictate the
outcome of the trial and the accused must still be able to mount a sub-facial challenge to the warrant,
as part of his or her right to make full answer and defence. The need to strike a balance between the
interest of law enforcement, informer privilege, and the accused's right to full answer and defence will
result in a challenge that is less direct than it otherwise could be.
 90 Faced with this reality, trial judges must strike an appropriate balance so as to ensure the
accused's right to full answer and defence is adequately protected. This is done by preparing a
carefully-crafted judicial summary and giving appropriate weight to the redacted details that were not
directly challenged. With respect to the judicial summary, the trial judge must be satisfied that the
summary, together with other information available to the accused, provides the accused with enough
knowledge of the nature of the redactions to be able to challenge them in argument or by evidence. To
the extent that the accused is not sufficiently equipped to challenge certain redactions, the trial judge
must not consider them. For the redacted information the trial judge does consider, he or she will,
when determining the weight to be given to that information in deciding whether the warrant could
have issued, take into account that the accused could not see it and directly challenge it. In my view,
step six of Garofoli must implicitly include these protections for a proper balance to be achieved.
Stereotypes
Sub facial Invalidity
Telewarrant Requirement of
Impracticability of Appearing
Before Justice
- R v Morelli, 2010 SCC 8 at para 79
 [t]o permit reliance on broad generalizations about loosely defined classes of people is to invite
dependence on stereotypes and prejudices in lieu of evidence."
- R v Sadikov, 2014 ONCA 72
 38 Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its
content: Araujo, at para. 50; and Wilson, at para. 40. Sub-facial challenges involve an amplified record,
but do not expand the scope of review to permit the reviewing judge to substitute his or her view for
that of the authorizing judicial officer: Araujo, at para. 51; and R. v. Garofoli, [1990] 2 S.C.R.
1421 (S.C.C.), at p. 1452. The task of the reviewing judge on a sub-facial challenge is to consider
whether, on the record before the authorizing justice as amplified on the review, the authorizing
justice could have issued the warrant: Araujo, at para. 51; and Garofoli, at p. 1452. The analysis is
contextual: Araujo, at para. 54. The reviewing judge should carefully consider whether sufficient
reliable information remains in the amplified record, in other words, information that might reasonably
be believed, on the basis of which the enabling warrant could have issued: Araujo, at para. 52.
- Telewarrants
- 487.1 (1) Where a peace officer believes that an indictable offence has been committed and that it would be
impracticable to appear personally before a justice to make application for a warrant in accordance with section
256 or 487, the peace officer may submit an information on oath by telephone or other means of
telecommunication to a justice designated for the purpose by the chief judge of the provincial court having
jurisdiction in the matter.
- R v Lao, 2013 ONCA 285
 65 It will be recalled that s. 487.1 of the Criminal Code permits an application for a search warrant
application to be made by telecommunication where it would be "impracticable" to attend personally.
The trial judge found that while it would have been inconvenient for DC Wallace to attend in person to
apply for the warrant, it was not impracticable. Having found that the standard of impracticability had
not been met, use of the telewarrant procedure was in breach of s. 8 of the Charter.
 66 In reaching this conclusion, the trial judge considered the full factual matrix including the non-
urgent nature of the application, the absence of any "cogent" reason for DC Wallace not appearing in
person, and the timing of the initial request in relation to the opening hours of the intake justice of the
peace offices.
 67 I see no basis on which to interfere with the trial judge's finding on this matter.
 68 I do not accept the Crown's submission that telewarrants merely provide an alternate process for
obtaining warrants and that there is no reason to limit their use. If that were the case, the legislation
would not have included the requirement that appearance in person must be "impracticable". I agree
with the trial judge that inconvenience is not the same as impracticability and, in my view, it was open
to the trial judge to conclude that the record before him did not establish that it was "impracticable" to
obtain a warrant in the usual manner.
 75 Having found that there was an adequate evidentiary foundation for issuing the warrant and no
impropriety in the application process, the only Charter-infringing conduct is the use of the
 telewarrant process without having adequately demonstrated that it was impracticable to appear in
person. In my view, in the circumstances of this case, this does not amount to a
serious Charter breach. A consideration of the first factor supports admission of the evidence.

Grant Analysis on Search Warrant Cases:

 R v Adler, 2020 ONCA 246

o [23] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada articulated three factors to be considered in
determining whether evidence obtained in a Charter-infringing manner should be excluded under s. 24(2): (1) the seriousness of the Charter-
infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the
adjudication of the case on its merits.
o [24] In terms of the first factor, the appellant says that the trial judge failed to accord the proper degree of seriousness to the Charter
breaches in this case. He particularly challenges the trial judge’s finding that the police acted in good faith throughout their investigation.
o [25] On that latter point, the Supreme Court made clear in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44, that “[e]ven where
the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear
violations of well-established rules governing state conduct” (citation omitted). In this case, many of the breaches of the appellant’s Charter
rights fall into the category of clear violations of well-established rules. The warrantless search of the appellant’s apartment is a prime example.
So too is the delay in providing the appellant with access to counsel.
o [26] In my view, the trial judge was much too quick to excuse the police conduct in this case. Put at its highest, the police conduct was
negligent and undertaken in a state of oblivion regarding the appellant’s rights. At worst, the police acted in multiple flagrant violations of his
rights.
o [27] On this point, it should be noted that the trial judge actively prevented counsel for the appellant from eliciting evidence that might have
shown that the police acted in bad faith. When the voir dire on the search warrant began, the trial judge initially indicated that he did not want
to hear any viva voce evidence. Both counsel objected to the trial judge’s position. The trial judge relented and evidence was called. However,
the trial judge precluded counsel for the appellant from asking the police officers questions regarding their understanding of the appellant’s
rights on the basis that these were matters for argument. The trial judge erred in this ruling. The state of the police officer’s knowledge of the
right breached is relevant to the seriousness of a violation. An officer, who violates a Charter right while knowing better, commits a flagrant
breach. For those officers who do not know of the relevant right, the reason they do not know can properly influence where on the good
faith/bad faith continuum the Charter breach might fall. Ignorance may result, for example, from disinterest or an absence of care on the part of
the individual officer, or systemic training deficiencies within the police service. The result was that counsel for the appellant was prevented
from developing the very evidence that went to the issue of the good faith of the police.
o Para 27 - The trial judge erred in this ruling. The state of the police officer's knowledge of the right breached is relevant to the seriousness of a
violation. An officer, who violates a Charter right while knowing better, commits a flagrant breach. For those officers who do not know of the
relevant right, the reason they do not know can properly influence where on the good faith/bad faith continuum the Charter breach might fall.
Ignorance may result, for example, from disinterest or an absence of care on the part of the individual officer, or systemic training deficiencies
within the police service.
 o Para 46 - In terms of the third Grant factor, I begin with two of Doherty J.A.'s observations in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d)
643. First, he said, at para. 62: "The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the
stronger the pull for exclusion." I have already made it clear that I view the breaches in this case to be at the high end of both the seriousness
spectrum and the impact spectrum. Second, Doherty J.A. said, at para. 63: "If the first and second inquiries make a strong case for exclusion,
the third inquiry will seldom, if ever, tip the balance in favour of admissibility" (citations omitted).
 R v Tsekouras, 2017 ONCA 290
o 102 Section 24(2) of the Charter requires that the admissibility of constitutionally-tainted evidence be determined on the basis of all the
circumstances. The test, broad and imprecise (Grant, at para. 60), requires a trial judge to assess and balance the effect of admitting the
evidence on societal confidence in the justice system. The focus of s. 24(2) is long-term, prospective and societal: Grant, at paras. 67-71.
o 103 The admissibility determination under s. 24(2) involves a balancing of assessments under each of the three lines of inquiry:
o i. the seriousness of the Charter-infringing state conduct;
o ii. the impact of the breach on the Charter-protected interests of the accused; and
o iii. society's interest in the adjudication of the case on its merits.
o See, Grant, at para. 71.
o 104 The first two inquiries operate in tandem. Both pull toward exclusion of constitutionally-tainted evidence. When the state's Charter-
infringing conduct becomes more serious and the impact of it on the Charter-protected interests of the accused becomes greater, the synergistic
effect of their combination strengthens the pull for and towards exclusion: McGuffie, at para. 62.
o 105 The third line of inquiry — society's interest in the adjudication of the merits — is contraindicative — pulls towards
the inclusion or admission of the evidence. This is a pull that reaches its zenith when the evidence tendered for admission is
at once reliable and crucial to the case for the Crown: McGuffie, at para. 62. See also, R. v. Harrison, 2009 SCC 34, [2009]
2 S.C.R. 494 (S.C.C.), at paras. 33-34.
o 108 The first line of inquiry under Grant requires a trial judge to evaluate the seriousness of the Charter-infringing state
conduct. This conduct will vary in its seriousness, from inadvertent or minor, on the one hand, to wilful or reckless, on the
other. The same may be said about the effect of admitting the evidence on the repute of the administration of justice: Grant,
at para. 74.
o 109 Various factors may attenuate or exacerbate the seriousness of the Charter-infringing state conduct. Extenuating
factors, such as the need to prevent the disappearance of evidence, or good faith on the part of investigators, may
attenuate the seriousness of police conduct that results in a Charter breach. On the other hand, no rewards are given for
ignorance of Charter standards. Negligence or wilful blindness is not the equivalent of good faith: Grant, at para. 75. Nor
can good faith be based on an unreasonable error or ignorance about the officer's scope of authority: R. v. Buhay, 2003
SCC 30, [2003] 1 S.C.R. 631 (S.C.C.), at para. 59; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.), at para. 55. The
more deliberate the conduct of the police in breach of the Charter, the more likely this line of inquiry will favour
exclusion: Grant, at para. 75.
o 110 The second line of inquiry requires an examination of the extent to which the Charter breach actually interfered with
or undermined the interests protected by the right infringed. Again here there is a spectrum: fleeting and technical to
 profoundly intrusive. The more serious the impact, the greater the risk that admission of the evidence will bring the
administration of justice into disrepute by signalling to the public that the high-sounding nature of the rights is belied by their
feeble evidentiary impact in proceedings against the person whose rights have been trampled: Grant, at para. 76.
o 111 To determine the seriousness of the infringement under this line of inquiry, a court must look to the interests
engaged by the right infringed and examine the extent to which the violation actually impacted on those interests: Grant, at
para. 77. An unreasonable search that intrudes upon an area in which an individual reasonably enjoys a high expectation of
privacy or that demeans a person's dignity is more seriousness than one that does not: Grant, at para. 78.
o 112 In assessing the actual impact of a breach on a Charter-protected interest of an accused, discoverability retains a
useful role. The more likely that the evidence would have been obtained without the Charter-infringing state conduct, the
lesser may be the impact of that Charter-infringing conduct on the underlying interests protected by the Charter right. The
converse is also true: Grant, at para. 122. See also, Cole, at paras. 93 and 97. Of course discoverability is a double edged
sword. It may signal that the breach of the accused's right was less serious. But it also renders the state conduct more
egregious as the evidence was "discoverable" without breaching the accused's Charter rights: R. v. Bains, 2014 BCCA 43,
306 C.C.C. (3d) 222 (B.C. C.A.), at para. 51; R. c. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 (S.C.C.), at paras. 70-72.
o 113 A final point concerns the evidentiary underpinnings for circumstances said to mitigate the seriousness of
the Charter-infringing state conduct or its impact on the Charter-protected interests of the accused. These factual findings of
mitigation must be soundly grounded in the evidence, not based on speculation: R. v. Pino, 2016 ONCA 389, 337 C.C.C.
(3d) 402 (Ont. C.A.), at paras. 95-98.
o
 R v Paterson, 2017 SCC 15
o 44 My colleague Moldaver J. recalls the trial judge's finding that the police were acting in good faith (para. 66; trial reasons, at para. 79).
While "'[g]ood faith' on the part of the police will ... reduce the need for the court to disassociate itself from the police conduct" (Grant 2009, at
para. 75), good faith errors must be reasonable (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 (S.C.C.) , at para. 59). This Court has
cautioned that negligence in meeting Charter standards cannot be equated to good faith (Grant 2009, at para. 75). Even where
the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear
violations of well-established rules governing state conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) , at paras. 24-25).
o 53 To summarize, the police conduct, while not egregious, represented a serious departure from well-established constitutional norms. The
impact of the s. 8 infringement on the appellant's interests protected thereunder was considerable, intruding into a place in which he was
entitled to repose the highest expectation of privacy. But the value of the evidence to deciding the truth of the charges against the appellant is
also considerable.
o 54 This is a close call. As was observed in Grant 2009, at para. 140, "[t]he balancing mandated by s. 24(2) is qualitative in nature and
therefore not capable of mathematical precision." Indeed, because the Grant 2009 factors are mutually incommensurable — balancing
seriousness of state conduct, seriousness of the infringement of Charter rights and the impact upon society's interest in adjudication — the
"balancing" will never be an entirely objective exercise. A reviewing court must, however, come to a reasoned conclusion. While the effective
destruction of the Crown's case weighs heavily, so does the warrantless entry into a private residence, having occurred to prevent the appellant
from destroying three roaches which the police themselves intended to destroy.
 o 55 In weighing these considerations, my colleague relies on the seriousness of the offence to hold that excluding the evidence will be "far
more likely to cause the public to lose faith and confidence in our criminal justice system" (para. 94). This is premised, however, upon a limited
view of public confidence which this Court has already rejected. As the Court observed in Grant 2009 (at para. 84), "seriousness of the alleged
offence ... has the potential to cut both ways. ... [W]hile the public has a heightened interest in seeing a determination on the merits where the
offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for
the accused are high." The public interest in maintaining a justice system "above reproach" has helpfully been explained by Doherty J.A. in R.
v. McGuffie, 2016 ONCA 365, 348 O.A.C. 365 (Ont. C.A.) , at para. 73:
o On the one hand, if the evidence at stake is reliable and important to the Crown's case, the seriousness of the charge can be said to enhance
society's interests in an adjudication on the merits. On the other hand, society's concerns that police misconduct not appear to be condoned by
the courts, and that individual rights be taken seriously, come to the forefront when the consequences to those whose rights have been infringed
are particularly serious .... [Citations omitted.]
o 56 It is therefore important not to allow the third Grant 2009 factor of society's interest in adjudicating a case on its merits to trump all other
considerations, particularly where (as here) the impugned conduct was serious and worked a substantial impact on the appellant's Charter right.
In this case, I find that the importance of ensuring that such conduct is not condoned by the court favours exclusion. As Doherty J.A. also said
in McGuffie , at para. 83, "[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the
community's commitment to individual rights protected by the Charter by excluding the evidence. ... This unpalatable result is the direct
product of the manner in which the police chose to conduct themselves."

2013 SCC 60

Morelli 2010 SCC 8

Araujo 2000 SCC 65

Colbourne 2001 157 CCC (3d 273

M(NN) [2007] O.J No 3022 (SCJ)

2018 SCC 53

M.(N.N.), [2007] O.J. No. 3022 (S.C.J)

Leave required to cross examine

World Bank Group 2016 SCC 30

Bennett 2017 ONCA 780

DiBenedetto 2019 ONCA 496

Garofoli

Shivratten 2017 ONCA 23

Lall 2019 ONCA 317

Lising 2005 SCC 66

Improperly Included/Omitted Information

Mahmood 2011 ONCA 693

Campbell 2010 ONCA 588

Garabet 2017 ONCA 139

Morellli 2010 SCC 8465

Nguyen 2011 ONCA

Telewarrant Issue

Lao 2013 ONCA 465

Lacelle 2013 ONCA 390

Bring Warrant Produce on Request

Cornell 2010 SCC 31

Knock and Announce

Cornell 2010 SCC 31

Section 10(b) Opportunity after Warrant Executed

Noel 2019 ONCA 680