THE GAROFOLI APPLICATION | CRIMINAL LAW TORONTO

This article was last updated: Nov. 10th, 2023

A Garofoli Application is a powerful motion used at trial by criminal lawyers in Toronto. It is a motion that seeks to protect the rights of the defendant and ensure that they have a fair trial by excluding evidence unlawfully obtained by the police.

This article examines what a Garofoli Application is and what is required to make it successful.

WHAT IS A GAROFOLI APPLICATION?

A Garofoli Application is a motion brought by a defence counsel to exclude evidence. It specifically relates to challenging the admissibility of intercepted communications, such as cell phone wiretaps. The motion is asking the trial judge to exclude all, or some, of the evidence obtained by police during the course of their investigation.

A Garofoli Application is a tool that criminal defence lawyers use to protect a client’s Charter Rights by ensuring that the only evidence admitted at trial was obtained lawfully and that it does not violate their client’s right to be secure against unreasonable search or seizure. It prevents the use of evidence that should not have been collected by police in the first place.

We know that Canadian police are intercepting private communications with Stingrays. This indiscriminate wiretapping is illegal and was used for at least six major cases across Canada. Evidence that was unlawfully obtained by the use of a Stingray device would be the type of evidence that lawyers would seek to have excluded.

HOW IS A GAROFOLI APPLICATION IS EMPLOYED?

Before trial, the defence counsel will provide notice to the Crown and Court that on behalf of their client they will be challenging the admissibility of the wiretap evidence by way of a Garofoli Application. The trial judge is asked to review and determine the validity of a judicial authorization.

If the judge determines that there was a breach of the accused person’s rights or that there were insufficient grounds to issue the warrant in the first instance then some or all of the evidence will not be admitted in the trial.

A search warrant that has been issued by a Judge is presumed valid. As a result, the burden of proving there was insufficient basis for a search warrant rests with the criminal defence lawyer.

Reviewed by the trial judge

A Garofoli Application can only be brought before and heard by the trial judge. Often trials occur years after police were originally granted judicial authorization to intercept private communications.

Examining the ITO

The first step in determining whether a search warrant was valid is to carefully examine the affidavit police wrote in order to obtain the warrant. The affidavit is often referred to as an ITO (Information to Obtain).

Identifying Deception and Errors to Obtain a Warrant

In the process of determining if there was sufficient reason to authorize the intercept warrant, the trial judge will carefully examine and scrutinize the information that was provided by police to obtain the warrant. Some reasons to exclude the wiretap evidence from trial would include:

• Material Omissions by Police
• Material Non-Disclosure by Police or the Crown
• False or Misleading Information given to the Judge issuing the warrant

Material Omissions

A material omission is the purposeful exclusion of information intended to influence the decision to authorize the warrant. This includes an application with incomplete, missing, or misrepresented information.

Material Non-Disclosure

Even if there were reasonable grounds for authorization, material non-disclosure can invalidate a warrant. This type of disclosure is strategic with the intention of misleading the authorizing judge or justice.

False or Misleading Information

This includes false or misleading information made deliberately or in bad faith. It can consist of poor drafting, deliberately misleading information, or an error on the source. Minor errors, like grammar and spelling, do not count as false or misleading information.

Unlike material non-disclosure, this form of deception does not necessarily remove the validity of the warrant. If the trial judge determines the warrant authorized without the deception, then it remains valid.

CHALLENGING A SEARCH WARRANT

The defence counsel does not have an automatic right to challenge a search warrant. As mentioned above, defence lawyers must provide notice prior to trial that they are seeking to challenge the admissibly of the wiretap evidence. If they pass the threshold test to challenge a warrant, then there are two types of challenges to a warrant:

1. Facial validity
2. Sub-facial validity

Facial validity

Challenging the facial validity of a warrant is an examination of just the ITO to determine whether a justice could have issued the warrant. It does not look at elements such as amplification or record evidence used to obtain the warrant.

Sub-facial validity

A sub-facial validity challenge is more in-depth. This challenges the reliability of the content of the ITO, determining whether the authorizing justice could have issued the warrant without deception in the application. This may involve a cross-examination of the affiant who swore the ITO.

WHAT HAPPENS IF A WARRANT IS DETERMINED INVALID

If a warrant is determined invalid, or insufficient in some portions, then some or all the evidence could be excluded from being used the at trial.

William Jaksa is a Toronto criminal defence lawyer with years of experience challenging search warrants for wiretaps and intercepts. If you are facing criminal charges and need to find defence counsel, contact Jaksa today.

William Jaksa | Criminal Litigation

43 Front Street East, Suite 400

Toronto, ON M5E 1B3

647-951-8078.