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Evidence - Amplification. R. v. Mackenzie
In R. v. Mackenzie (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, here brought against an acquittal which turned on whether "a prior judicial authorization has a lawful basis", here a search warrant.
The court extensively examines a Garofoli search warrant authorization - here focussing on it's 'residual discretion' to set such aside, and warrant 'amplification':[1] Trial judges are often called upon to determine whether a prior judicial authorization has a lawful basis. This review process is done within the confines of a Garofoli hearing: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R 1421. At the Garofoli hearing, the reviewing judge decides whether, based upon the record that was before the issuing justice, as excised or amplified on review, the authorizing justice “could” have issued the subject order.
[2] To be sure, this is a tightly circumscribed hearing. The basis upon which an authorization can be set aside is narrow: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 40.
[3] In some very limited circumstances, an authorization can be set aside under what has been referred to as a trial judge’s “residual discretion”: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 66, leave to appeal refused, [2017] S.C.C.A No. 81. Specifically, the authorization can be set aside where, despite the presence of a proper evidentiary foundation for the authorization following excision and amplification, the police conduct has so subverted the prior authorization process that the warrant should be invalidated.
[4] This is a Crown appeal from acquittal following the invocation of the residual discretion in relation to two warrants, both issued on February 27, 2024, and the exclusion of critical evidence pursuant to a s. 24(2) Charter ruling. The central question on appeal is whether the trial judge erred in law by finding that the residual discretion could be invoked based solely on negligence, and in the absence of any intentional police conduct. In my view, he did. For the reasons that follow, I would allow the appeal.
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3. The Garofoli Process
[41] The Garofoli test for review of a prior judicial authorization is well established. Whether the reviewing justice would have issued the authorization plays no part in the assessment. The question for the reviewing justice is narrow, asking only whether, based on the record that was before the authorizing justice, “as amplified on the review”, the authorizing justice could have granted the authorization: Garofoli, at p. 1452. See also R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51, 54; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
[42] The term “as amplified on the review” refers to both excision and amplification.
[43] Excision removes erroneous information from the ITO or affidavit: Araujo, at para. 58; Morelli, at para. 44. Excision is not at issue in this case.
[44] Amplification adds information into the ITO or affidavit – information that should have been disclosed. For obvious reasons, there are rules around these after-the-fact additions. These rules address two competing concerns.
[45] First, there is a need to ensure that amplification does not become a means by which to circumvent the entire prior judicial authorization process. After all, if the police could simply add information into an ITO after the fact to establish the statutory requirements for the authorization, there would be no point in having a system of prior authorization.
[46] Second, at the same time, the law properly eschews placing form over substance. In other words, where the police have in “good faith, made some minor, technical error in the drafting of their affidavit material”, amplification should be permitted: Araujo, at para. 59.
[47] The rules governing amplification evolve from these competing concerns.
[48] Where the affiant omits material information that detracts from the requisite grounds, that information is added into the ITO. However, where material information enhancing the requisite grounds is at issue, it will only be added into the ITO if its absence resulted from a “minor, technical error” and the error was made in “good faith”: Morelli, at para. 41.
[49] This case involves the first category of amplification. After amplifying the ITO with information detracting from the requisite grounds, the trial judge concluded that it still “could” have issued. Therefore, the respondent, who held the onus on the Garofoli hearing, failed to meet his burden. However, instead of dismissing the application, the trial judge went on to consider the residual discretion. I now turn to the legal error made in approaching that discretion.
4. Residual Discretion
[50] This case turns on whether the trial judge erred in concluding that the residual discretion includes negligent errors made by an affiant. In my view, tracing the evolution of the jurisprudence, he did.
[51] Garofoli made no mention of the residual discretion.
[52] Yet ten years later, LeBel J. referenced the concept of residual discretion in Araujo. He cited, at para. 54, to R. v. Morris, 1998 NSCA 229, 134 C.C.C. (3d) 539, at p. 553, where Cromwell J.A., as he then was, noted that “even fraudulent errors” would not “automatically invalidate the warrant.” Of course, that accorded with the Garofoli standard of review, which specifically referenced the fact that “the existence of fraud, non-disclosure, misleading evidence and new evidence” (emphasis added) was relevant to the Garofoli inquiry. However, these were not prerequisites to review. Rather, “their sole impact” was to determine if there continued to be “any basis for the decision of the authorizing judge”: Garofoli, at p. 1452. Cromwell J.A. went on to note that even though errors, “even fraudulent errors”, would not result in the automatic invalidation of a warrant, this did not mean that errors – “particularly deliberate ones” – were irrelevant to the review process: Morris, at p. 553. The need to protect the prior authorization process meant that a reviewing judge was not foreclosed from “concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventative function it serves”: Araujo, at para. 54, adopting Morris, at p. 553. Cromwell J.A. was clear, in his summary of the relevant principles, that the residual discretion addressed “fraudulent or deliberately misleading material in the Information”, information that was “so subversive” of the prior judicial authorization process that the warrant should be invalidated”: see pp. 568-69. See also Paryniuk, at para. 55.
[53] Since Araujo, and its adoption of Morris, this court has recognized the residual discretion on a few occasions. Each time, this court has focused on the fact that the residual discretion is to be exercised in very limited circumstances involving some form of intentional misleading of an issuing justice.
[54] For instance, Doherty J.A. noted that non-disclosure for “some improper motive” or which was “intended to mislead” (emphasis added) the issuing justice could invalidate a warrant “despite the presence of reasonable and probable grounds to issue the warrant”: R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273, at para. 40. Watt J.A. reiterated this in Paryniuk: a warrant can be set aside, despite the presence of the requisite grounds, on the basis of non-disclosure for some “improper motive or to mislead the issuing judicial officer” (emphasis added): Paryniuk, at para. 62. See also: R. v. Dosanjh, 2022 ONCA 689, 163 O.R. (3d) 401, at para. 162.
[55] The threshold test for the invocation of the residual discretion, involving some degree of intentionality, accords with what this court has described as a “high” threshold test, to be invoked in only “rare” circumstances: Lahaie v. Canada (Attorney General), 2010 ONCA 516, 101 O.R. (3d) 241, at para. 40, leave to appeal refused, [2010] S.C.C.A. No. 371; Dosanjh, at para. 162.
[56] Although Paryniuk is clear in the above-cited passage that there must be some degree of intentional misleading to invoke the residual discretion, the respondent points to a later passage in Paryniuk, where Watt J.A. refers to the presence of “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like” (emphasis added) as being sufficient to trigger the residual discretion: Paryniuk, at para. 69. The respondent says that “the like” signals a clear extension of the residual discretion to negligent police conduct. Respectfully, I disagree.
[57] Read in its proper context, Paryniuk is clear that some form of intentional conduct on the part of the affiant is required to invoke the residual discretion. If Watt J.A. intended to extend the residual discretion to encompass police negligence, even serious police negligence, that would not have been difficult to express as part of the list. The use of the term “the like” is clearly a reference to the other “like” circumstances where the residual discretion can be invoked, all of which include some form of intentionality.
[58] I pause here to note that the trial judge seemed to think that bad faith could arise from negligence. He noted that this court’s decision in Booth, at para. 121, gave rise to a “conundrum” about bad faith. He then went on to say that, assuming that he had to “classify the affiant’s conduct as either good faith or bad faith”, he would have “no hesitation calling it bad faith” because bad faith connotes not only wilful conduct but also extends to blatant disregard for Charter standards, including severe negligence.
[59] It is not clear what the trial judge meant by a conundrum in this court’s decision in Booth, at para. 121. That passage references the fact that, for the purposes of a s. 24(2) Charter inquiry, there must be a close examination as to where the violation should be located on the “fault line”. It is in that context that Paciocco J.A. said: “It is true that when it comes to evaluating whether a failure to make full and frank disclosure violates the Charter, the law employs a simple, binary ‘good faith or bad faith’ analysis relating to whether amplification will be available or whether the residual discretion to set aside a warrant is triggered. However, the law of s. 24(2) is different”: Booth, at para. 121.
[60] With respect, there is no conundrum arising from Booth. In my view, the impugned passage from Booth is a clear and accurate statement of the law. Under s. 24(2), police conduct must be located somewhere along a spectrum with good faith at one end and bad faith at the other: R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14, at paras. 41, 45. Undoubtedly, negligence falls on that spectrum, somewhere between good and bad faith. The point being made in Booth is that, when it comes to amplification or invoking the residual discretion, the law does engage with a binary good- or bad-faith analysis. For purposes of amplification under a Garofoli hearing, the law asks only whether minor or technical errors were made in “good faith”, such that they can be amplified: Araujo, at para. 59; Morelli, at para. 41. And for purposes of invoking the residual discretion, the law asks only whether there was some form of bad faith, in the sense of intentional or deliberate non-disclosure, deception, or fraudulent misrepresentation: Paryniuk, at para. 62; Booth, at para. 65; Colbourne, at para. 40; Dosanjh, at para. 162. As pointed out in Booth, at para. 121, both are entirely unlike a s. 24(2) analysis involving a nuanced approach to assessing the seriousness of police conduct to position it on what has often been referred to as the “fault line”.
[61] I have so far left this court’s decision in Kesselring to the side. The parties point to different paragraphs in support of their positions. The Crown points to para. 31, where the court referred to the fact that a search warrant “must be quashed if it is shown that the police in applying for the warrant engaged in a deliberate deception.” The respondent points to the next paragraph, para. 32, where the court said that there “may be cases where a lack of care will be sufficiently serious that an otherwise valid warrant should be set aside.”
[62] In my view, nothing can be taken from this court’s comment that a “lack of care” could be sufficient to invalidate a warrant. Leaving aside the fact that the passage is entirely equivocal, Kesselring was decided prior to Araujo, where it was made clear that the type of conduct necessary to invoke the residual discretion is deliberate in nature. I also note that Paryniuk, at para. 69, cites Kesselring in support of the test to invoke the residual discretion, but only Kesselring, at para. 31. Therefore, Kesselring provides no support to the respondent’s position.
[63] Infusing the residual discretion with a requirement of intentionality accords with the highly circumscribed approach to Garofoli hearings. It must be remembered that Garofoli hearings are not trials. Rather, they are a narrow, streamlined avenue to determine the admissibility of evidence. And they are specifically designed to avoid prolixity in proceedings.
[64] As early as Garofoli itself, the court addressed concerns over “prolixity”, placing reasonable limitations on cross-examinations of affiants: Garofoli, at p. 1465. This theme was picked up on in Pires, where the court repeated concerns over prolixity, noting that 15 years after Garofoli, “the constructive use of judicial resources” was equally, if not more, applicable: Pires, at para. 35.
[65] In my view, one would be hard pressed to find a justice system participant today who would not agree that there has been no retreat from prolixity in legal proceedings and, in fact, it continues on a steady march forward. It reminds one of the sage words of Finlayson J.A. in Durette, almost 35 years ago: unless courts “can find some method of rescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with our traditional adversarial system of justice”: R. v. Durette (1992), 1992 CanLII 2779 (ON CA), 9 O.R. (3d) 557 (C.A.), at p. 573, rev’d on other grounds, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469.
[66] Respectfully, the trial judge’s approach, widening the residual discretion to include negligence, would only serve to intensify that morass.
[67] As noted, the Garofoli review process is not about testing the merits of the Crown’s case. And it is not about conducting extensive probes into police conduct. Nor is it about disciplining the police for negligence. It is an evidentiary hearing, designed to determine the admissibility of relevant evidence: Pires, at para. 30. The threshold test for review on a Garofoli hearing, the rules around excision and amplification, and the rules around cross-examination all exist in a fine balance, one designed to efficiently identify s. 8 Charter breaches, all the while keeping trials moving forward.
[68] Although the use of the residual discretion is inextricably linked to the Garofoli hearing, it is intended for use only in those very rare cases where an affiant has engaged in intentional wrongdoing, 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, at para. 2.
[69] In advocating for a broader approach, the respondent and the CLA seek to integrate the abuse of process doctrine into the residual discretion. They rely on the second of the two well-established categories of the abuse of process doctrine: (a) where the impugned state conduct is such that it compromises trial fairness (the main category); and (b) where the impugned state conduct does not threaten trial fairness, but “risks undermining the integrity of the judicial process” (the residual category): R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31, citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73 (emphasis added). Specifically, the respondent and the CLA say that the residual category of the abuse of process doctrine is relevant to whether a search is so subversive of the warrant process that it “in effect” amounts to an abuse of process: Vivar, at para. 2. Under the residual category of the abuse of process doctrine, the question is whether the state has engaged in such serious conduct that it would be “offensive to societal notions of fair play and decency” to proceed to trial, a trial that would be “harmful to the integrity of the justice system”: Babos, at para. 35. The respondent and the CLA argue that serious police negligence in applying for a prior judicial authorization could constitute an abuse of process under the residual category. Importantly, the respondent and CLA quite correctly point out that it is not necessary to establish intentional wrongdoing on the part of state actors to demonstrate an abuse of process. Theoretically, they say, an abuse of process could be rooted in severe negligence. Therefore, they argue that to require intentional wrongdoing to invoke the residual discretion is to inject a serious inconsistency into the law.
[70] With the greatest of respect, I disagree.
[71] Leaving aside whether an abuse of process could be established on the basis of negligent state conduct, I do not read this court’s prior jurisprudence as fusing the abuse of process doctrine into the threshold test for the use of the residual discretion. Rather, this court pointed to the abuse of process doctrine in Vivar – state conduct so “subversive of the search warrant process as to, in effect, amount to an abuse of process” – as exemplary of the degree of seriousness of police conduct required to invoke the residual discretion: Vivar, at para. 2. The point made in Vivar is that the deliberate subversion of the warrant process would be harmful to the very integrity of the justice system - that it would offend society’s very sense of fair play and decency.
[72] The jurisprudence is clear that to invoke the residual discretion during a Garofoli hearing, there must be some form of intentional wrongdoing on the part of the affiant. That wrongdoing must be so grave that it subverted the search warrant process. Equating conduct of this type “in effect” with an abuse of process was simply a way of saying that, like the abuse of process doctrine, the residual discretion is not to be invoked lightly. Rather, it will only be done on “rare” occasions and only in the “clearest of cases”: Babos, at para. 31. . R. v. Nguyen
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal considers 'amplification' of a criminal 'information to obtain' (ITO) a search warrant:[32] I agree that amplification was permissible to correct the ITO to state that D.C. Merritt told D.C. Goss the appellant was dealing from 1430 King St. West. The only live dispute is whether D.C. Merritt told D.C. Goss the appellant lived at 1430 King St. West or trafficked drugs from there. The application judge was entitled to prefer the evidence of D.C. Merritt over D.C. Goss on this point. The focus on amplification is whether the police had the information at the time of the application for the search warrant but failed to communicate it due to a failure in drafting: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 59; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 42-43. Amplification is not restricted to correcting mechanical or typographical errors but extends to failures to communicate what was known by the affiant as a result of want of drafting skill: R. v. Duncan, 2021 ONCA 673, at paras. 14-16. . R. v. Feizi
In R. v. Feizi (Ont CA, 2022) the Court of Appeal considered the 'amplification' of evidence in a criminal context:[4] This application failed. The trial judge agreed with the appellant that the inaccurate representations relating to the address label had to be excised. However, after finding that the affiant had made these errors in good faith by erroneously stating his conclusion as to the intended delivery address instead of describing why he believed 4 Fernwood Court to be the intended delivery address, she permitted the Crown to amplify the ITO. It is not contested that the amplification evidence furnished reasonable and probable grounds for the general warrant.
[5] The appellant argues on appeal that the motion judge erred by applying the wrong test in permitting amplification, and that on the correct test, the Crown’s amplification evidence should not be permitted. He asks that his appeal be allowed, the evidence be excluded pursuant to s. 24(2) of the Charter, and a verdict of acquittal be substituted.
[6] We are not persuaded that the trial judge erred, and therefore dismiss the appeal.
[7] Amplification is permitted only to correct minor, technical errors that were made in good faith: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 59; R. v. Duncan, 2021 ONCA 673, at paras. 9, 15. The appellant takes no issue on appeal with the trial judge’s factual finding that the affiant’s errors were made in good faith. The appellant argues that the trial judge applied the wrong test by asking whether the errors went to the “core of the ITO” instead of asking whether they were “minor or technical” errors. We do not agree. The trial judge stated the test correctly at the outset of her decision: “[A]mplification may occur to correct minor errors in the ITO that were made in good faith.” When the trial judge subsequently said, “The error does not in my view go to the core of the ITO”, she was responding directly to and rejecting the defence submission that the errors went to the core of the ITO. When the decision is read as a whole, it becomes clear that the trial judge applied the correct test.
[8] Nor do we accept the appellant’s alternative submission that the errors are not minor or technical by any reasonable standard. Three points need to be made.
[9] First, an error can be minor or technical even if it relates to an essential component of a search warrant application, as these errors do. In Duncan, this court rejected the suggestion that amplification is limited to “errors or omissions in the affidavit which are so minor as to have little, if any, relevance to the ultimate legality of the authorization”: at para. 15. It follows that the characterization of an error as minor or technical turns on the nature of the error made and not on the importance of the topic the error relates to.
[10] Second, in the face of the decision in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, we do not agree with the submission that the errors in this case cannot be characterized as minor or technical “by any reasonable standard”. In Plant, the affiant represented that a confidential informant provided information that marijuana was being cultivated “at the residence of 2618 26 Street S.W.”, when the confidential informant had only described a “cute house” on the 2600 block of 26th Street. Sopinka J. permitted amplification of the record “by reference to the fact that the police were able to locate a residence matching the description which they were given”: at pp. 298-299. We do not accept the appellant’s submission that the amplification permitted in Plant is materially distinguishable because in that case the police were not given an inaccurate address as they were here, and that in this case, the affiant replaced one address with another. It is obvious that the delivery address on the intercepted package was not a real address. The replacement that occurred was to substitute a misstated address with what the affiant clearly believed to be the intended address. We accept, as did the trial judge, that the affiant should have disclosed his reasoning and not just his conclusion, but we do not accept the submission that this case differs from Plant because it involved the substitution of one address for another. In our view, this case cannot meaningfully be distinguished from Plant. What matters is that in Plant, as in this case, the Crown was permitted to amplify an inaccurate claim that the police had a precise address to be searched, with evidence explaining how the police identified the address to be searched.
[11] Third, although there is certainly room for disagreement about whether the errors in this case were minor or technical, it would not be appropriate for us to substitute our view for the conclusion of the trial judge, even if we would have arrived at a different conclusion. As this court said in Duncan, at para. 17: “As with most decisions that involve the exercise of discretion, legitimate arguments can be made favouring the exercise of the discretion differently than it was exercised by the trial judge. That is not enough to warrant appellate intervention.”
[12] Of course, deference would not be warranted had the trial judge’s characterization of the error been unreasonable, but given the analogous decision in Plant, that cannot be said to be the case. Nor, for the same reason, can we accept the appellant’s related argument that the amplification that occurred in this case was an impermissible example of the Crown being allowed, contrary to the dictum in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 42, to retroactively add information that it could have included in support of the warrant but failed to do so.
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