Martha Devlin

The accused brought a Garofoli application challenging the validity of CSIS search warrants that formed the basis for subsequent RCMP wiretap warrants in a terrorism investigation.

The applicant alleged breaches of s. 8 of the Charter and argued the information to obtain the warrants failed to establish both a threat to the security of Canada and investigative necessity under s. 21 of the Canadian Security Intelligence Service Act.

The court held that the affidavit contained sufficiently reliable information, including detailed statements from a human source relaying incriminating admissions from a target of the investigation, and that the issuing judge could reasonably conclude the statutory requirements were met.

The court further held that the investigative necessity requirement under the CSIS Act differs from the investigative necessity standard applicable to Criminal Code wiretaps.

The application to set aside the warrants was dismissed.

In a terrorism prosecution, the applicants sought further disclosure from the Canadian Security Intelligence Service relating to payments made to a human source relied upon in a CSIS affidavit supporting investigative warrants under the Canadian Security Intelligence Service Act.

The court held that records detailing remuneration and reimbursements paid to the source were likely relevant to a pending Garofoli voir dire because financial incentives may affect credibility and the affiant’s assessment of reliability.

Production of records relating to payments to the source was therefore ordered.

However, the request for disclosure of any CSIS reliability assessments concerning a target of the investigation was refused, as the target was not a traditional informant whose reliability required evaluation.

The applicants brought a motion to reconsider a previous decision denying production of CSIS source documents and sought leave to cross-examine the CSIS affiant on a Garofoli voir dire.

The court found that newly disclosed information revealed an apparent contradiction in the CSIS affidavit regarding whether a target was actively seeking a gun.

This contradiction met the threshold to show the affiant may have failed to make full, frank, and fair disclosure.

The court ordered the CSIS source documents to be produced for judicial review to determine their relevance to the Garofoli application.

The applicants sought leave to cross‑examine a CSIS affiant in a Garofoli‑type challenge relating to warrants issued under the Canadian Security Intelligence Service Act in a terrorism prosecution.

They alleged material non‑disclosure and mischaracterization in the affidavit supporting the warrants, including contradictions in source material regarding an alleged attempt to acquire a firearm, the remuneration structure of a confidential source, the source’s alleged status as an agent, and the possibility of direct meetings between the source and one applicant.

Applying the threshold in R. v. Garofoli and R. v. Pires; R. v. Lising, the court held that cross‑examination is permitted only where it could undermine a statutory precondition for authorization.

The court found a sufficient factual foundation regarding a contradiction about attempts to obtain a gun, which could relate to the existence of reasonable grounds and the duty of full, fair, and frank disclosure.

Leave was granted on that issue but denied for the remaining proposed lines of questioning.