R. Hubbard

The applicant brought a Charter application under s. 24(1) seeking to quash search warrants authorizing the search of computers and hard drives allegedly containing child pornography.

The issue was whether leave to cross‑examine the affiant or sub‑affiants on a Garofoli application could be granted based solely on counsel’s submissions or whether some evidentiary foundation was required.

The court held that statements of counsel alone are insufficient; an applicant must point to evidence in the record or other admissible material supporting the alleged factual basis for cross‑examination.

Because the applicant failed to identify such evidence, the court declined to grant leave to cross‑examine the affiant or sub‑affiants at this stage.

The applicant sought relief under s. 24(1) of the Charter to quash search warrants executed against his computers and hard drives before any charges had been laid.

Because the applicant was a lawyer, the devices had been sealed pending a Lavallee procedure to protect solicitor‑client privilege, leaving the investigation at a pre‑charge stage.

The court considered whether the restrictive collateral‑attack framework from R. v. Wilson applied or whether the Garofoli regime governing Charter challenges to search warrants applied.

The court held that Charter‑based challenges to the legality of searches are governed by Garofoli rather than the stricter Wilson test, particularly where solicitor‑client privilege concerns justify hearing the challenge before any potential trial.

The applicant was entitled to disclosure of materials referenced in the Information to Obtain, and the issue of leave to cross‑examine would be determined after disclosure.