Garofoli Procedure

Garofoli Procedure

R. v. Burgher, [2014] O.J. No. 6449, 2014 ONSC 4527

PRE-TRIAL RULING
THE PROCEDURE PURSUANT TO R. V. GAROFOLI

Background: This is a pre-trial application on the nature of the steps articulated by Sopinka J. in Garofoli in challenging a wiretap or a search warrant. It is useful to reproduce the six steps here.

1.      1-Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.

2.      The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.

3.      After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.

4.      After the determination has been made in (3), the packet material should be provided to the accused.

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.

The accused contends the nature of the judicial summary in Step 2 and Step 6 is fundamentally different. Whereas, the judicial summary requirement in step 2 can be fulfilled by a generic description of the kinds of excised information, the accused maintains that the judicial summary in step, while like the judicial summary in step 2 is of no evidentiary significance in determining the validity of the warrant, must “be detailed enough to make the accused sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”

The Crown maintains that the nature of the judicial summaries in both steps is essentially the same, and further contends that the judicial summary in step 2 can form part of the evidentiary record in the Crown’s application under step 5.

The accused also submits that the Crown must choose between step 5 and step 6.

Analysis: The Court agrees with the accused’s contention that the judicial summaries in steps 2 and 6 are fundamentally different. While the summary in step 2 is of generic nature, the summary in step 6 will be more detailed. In rare cases, however, the summaries may be the same.

The Court also notes that “judicial summaries created at step two and step six of the Garofoli procedure are designed to serve as a substitute for full disclosure to fairly help the accused participate meaningfully in the process. They were not intended to serve as a more expansive evidentiary record to determine the legal sufficiency of the search warrant.”

The Court goes on to note that the Crown does not have to choose between step 5 and step 6, but may proceed with both simultaneously. The Court is concerned that making the Crown choose would simply result in the Crown proceeding with step 6, which would be more time-consuming. While the Court recognizes that simultaneous Step 5 and Step 6 applications are also time-consuming, it holds that that is the law as per Garofoli.